Foster v. Brooks

• Decision Date: 28 March 1968
• Docket Number: No. 1,CA-CIV,1
• Citation: 7 Ariz.App. 320,438 P.2d 952
• Parties: Rosemary FOSTER, Petitioner, v. J. Thomas BROOKS, Judge of the Superior Court of the State of Arizona, In and For the County of Coconino, Respondent, Joseph E. Patrick, Respondent-Real Party in Interest. 761.
• Court: Arizona Court of Appeals

Page 952

438 P.2d 952

7 Ariz.App. 320

Rosemary FOSTER, Petitioner, v. J. Thomas BROOKS, Judge of the Superior Court of the State of Arizona, In and For the County of Coconino, Respondent, Joseph E. Patrick, Respondent-Real Party in Interest.

No. 1 CA-CIV 761.

Court of Appeals of Arizona.

March 28, 1968.

Rehearing Denied April 29, 1968.

Stevenson, Warden & Smith, by Jerry L. Smith, Flagstaff, for petitioner.

Goodson, Richmond & Rose, by John F. Goodson, Phoenix, for respondent, Joseph E. Patrick.

STEVENS, Judge.

In the above numbered Superior Court cause, the Respondent Judge granted the motion of Patrick to strike the answer of the petitioner to Patrick's counterclaim and to enter the petitioner's default in relation to the counterclaim by reason of her failure to appear for the taking of her deposition. The rule pursuant to which the Respondent Judge entered his order is Rule 37(d), Rules of Civil Procedure, 16 A.R.S., which reads, in part, as follows:

'* * * If a party * * * Wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, * * * the court On motion and notice may strike out all or any part of any pleading of that party, * * * or enter a judgment by default against that party.' (Emphasis supplied)

The petitioner, believing that the action of the Respondent Judge constituted an abuse of judicial discretion, filed the proceeding now under consideration in this Court seeking to compel the Respondent Judge to vacate his order and to reinstate the stricken pleadings. After an informal hearing, as provided by the rules, this Court took the matter under advisement and then entered its order restraining the Respondent Judge from entering judgment in favor of Patrick and against the petitioner with leave, however, to exercise his discretion to vacate the order to reinstate the stricken pleadings and to proceed to a trial on the merits. The order further provided that in the absence of the exercise of that discretion, the records in the Superior Court action were required to be certified to this Court. The Respondent Judge was afforded the opportunity to comply with the suggestion of this Court. He reaffirmed his prior ruling. Thereupon, the records were certified to this Court. This Court now has the responsibility of determining whether the ruling of the Respondent Judge was an abuse of discretion and if so, was such an abuse of discretion sufficient to warrant this Court in assuming jurisdiction to grant extraordinary relief? State ex rel. Ronan v. Superior Court, 95 Ariz. 319, 390 P.2d 109 (1964); Caruso v. Superior Court, 100 Ariz. 167, 412 P.2d 463 (1966); Agraan v. Superior Court in and for Pima County, 4 Ariz.App. 141, 418 P.2d 161 (1966).

It becomes necessary to review the Superior Court background in some detail. Dateline Broadcasters, Inc., a corporation, held a license for the operation of a radio station in Flagstaff. The petitioner and her then husband Charles L. Foster, were interested in acquiring the capital stock of the corporation together with the license for the operation of the radio station. During the period of negotiation, there were a number of problems in relation to the consummation of the transaction. These apparently did not end with the execution of a written contract bearing date of 4 February 1964 wherein the Fosters were the buyers and the respondent-real party in interest Patrick, along with one Brandt, were the sellers.

On 21 April 1965 the Fosters filed a civil action in the Superior Court for Coconino County being Cause No. 22383. The above contract was attached to the complaint. Among the named defendants were the corporation, Patrick and a number of the corporate creditors. The Fosters alleged a failure on the part of the sellers to perform resulting in the necessity of going off the air so far as the radio station was concerned, requesting the appointment of a receiver, the liquidation of the corporation and other relief. After the entry of a number of defaults and the filing of a number of stipulations, a receiver was appointed on 23 July 1965. In the meantime and on 20 May 1965, Mr. Foster died in Texas, a resident of Texas. The date and fact of his death did not become a matter of the official record in the court file until 24 February 1966.

Patrick became aggressively active in this case in November 1965. On 22 November, through his Phoenix counsel, he filed a counterclaim against the Fosters seeking actual and punitive damages for a claimed breach of the agreement. He submitted extensive interrogatories, the first question inquiring as to the date of Mr. Foster's death and the first 13 questions relating to matters pertaining to Mr. Foster's estate. Patrick was aware of the Texas residence of the Fosters in that he sent a copy of the interrogatories to Mrs. Foster at her Texas address. It was the petitioner's response which was filed on 24 February 1966 which first made the fact of Mr. Foster's death an official part of the file. Also, on 22 November, Patrick gave notice of the taking of the petitioner's deposition in Phoenix on 10 December 1965. On 24 November Patrick served a searching request for admissions of fact and acknowledgment of genuineness of documents to which was attached a series of exhibits, this particular filing being approximately one-half inch thick.

On 7 December the petitioner moved for a protective order by reason of her residence in Texas. This was countered with a notice to take her deposition in Phoenix on 15 December and the petitioner moved to quash the notice. At the hearing the following order was entered by Judge Wren:

'With reference to the Motion to Quash Talking (sic) of Deposition of James L. Young and Rosemary Foster, it is stipulated that * * * the deposition of Rosemary Foster may be taken in Arizona just prior to the trial date as shall be agreed to by counsel, or in the alternative that she may be deposed in Arizona at a time and place to be stipulated by counsel. * * *'

On 16 January 1966, Phoenix attorney John C. Hughes, filed his petition to intervene and on 28 February, filed his claim against the petitioner, the corporation and Patrick. There were further efforts in relation to discovery by interrogatories and requests for admissions. On 6 February 1967, Judge Wren conducted a pretrial conference and the pretrial order permitted a limited period of further discovery setting the cause for trial for 1 May 1967.

In the meantime Flagstaff counsel were associated in representing the interests of Patrick and they noticed the petitioner for deposition in Flagstaff for 21 April 1967. The petitioner then secured a protective order signed by the Respondent Judge continuing the deposition to a time certain on 29 April. In the meantime, Phoenix counsel for Patrick noticed the petitioner for deposition in Flagstaff for 29 Arpil for an hour differing from the hour specified in the court's order. On 29 April, Judge Wren, recognizing a conflict in the court's calendar and for the court's convenience, reset the cause for 17 July. The record certified to this Court does not contain a disposition in relation to the deposition of the 29th of April, whether it be by virtue of the notice or by virtue of the court's order. On 29 April, Phoenix counsel for Patrick mailed a notice of taking deposition scheduling the same for Flagstaff for 27 May, the notice therein reciting:

'This is a re-notice of the deposition of the Plaintiff Rosemary Foster. All parties are put on notice that this Plaintiff has failed to appear at the various depositions that were scheduled of her, and in the...