Fressadi v. Town of Cave Creek

• Decision Date: 10 May 2012
• Docket Number: 1 CA-CV 11-0051
• Citation: Fressadi v. Town of Cave Creek, 1 CA-CV 11-0051 (Ariz. App. May 10, 2012)
• Parties: AREK FRESSADI, an unmarried man, Plaintiff/Appellant, v. TOWN OF CAVE CREEK, an Arizona municipality; JOCELYN L. KREMER, a single woman; MICHAEL GOLTEC, a married man; and REAL ESTATE EQUITY LENDING, INC., an Arizona corporation, Defendants/Appellees.
• Court: Arizona Court of Appeals

AREK FRESSADI, an unmarried man, Plaintiff/Appellant, v.TOWN OF CAVE CREEK, an Arizona municipality; JOCELYN L. KREMER a single woman; MICHAEL GOLTEC, a married man; and REAL ESTATE EQUITY LENDING INC., an Arizona corporation, Defendants/Appellees.

1 CA-CV 11-0051

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT B

Dated: May 10, 2012

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.SeeAriz. R. Supreme Court111(c);ARCAP 28(c);Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

(Not for Publication - Rule 28,Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County

CauseNo. CV2009-050924

The Honorable Robert A. Budoff, Judge

AFFIRMED

Arek Fressadi

Plaintiff/Appellant, in propria persona

Tucson

LaSota & Peters, P.L.C.

By Jeffrey T. Murray

Attorneys for Defendant/Appellee Town of Cave Creek

Phoenix

Farley, Seletos & Choate

By Joseph T. Tadano

Attorneys for Defendant/AppelleeJocelyn L. Kremer

Phoenix

Turley, Childers, Humble & Torrens P.C.

By Scott Humble

Attorneys for Defendant/Appellee Real Estate

Equity Lending, Inc.

Phoenix

KESSLER, Judge

¶1Plaintiff/AppellantArek Fressadi appeals the superior court's dismissal of his complaint pursuant to Rules 16(f)and37(b)(2)(C) of the Arizona Rules of Civil Procedure("Rules").For the following reasons, we affirm the dismissal of Fressadi's complaint.

FACTUAL AND PROCEDURAL BACKGROUND

¶2In February 2009, Fressadi filed a five-count complaint against Defendants/AppelleesJocelyn Kremer, Michael Goltec, Real Estate Equity Lending, Inc.("REEL"), and the Town of Cave Creek("the Town").¹Kremer, Goltec, and REEL own properties adjacent to property owned by Fressadi, and Fressadi claimed that certain construction on their lots violated town ordinances.He sought an order requiring the Town to enforce the ordinances, and he alleged claims of nuisance, negligence, trespass, and sought an injunction against the other Defendants.

¶3The parties telephonically appeared at a comprehensive pretrial status conference in December 2009.²At the beginning of the conference, Fressadi's counsel was permitted to withdraw.When counsel disconnected, so did Fressadi.Upon realizing this, the court recessed the hearing and reconvened with Fressadi present.³During the conference, the court inquired about the feasibility of settlement, and set several deadlines for discovery, disclosure, and dispositive motions.The court also ordered the parties to appear in person at the next pretrial conference to schedule a trial date.The minute entry reflects in bold text:

IT IS FURTHER ORDERED setting a status conference on November 16, 2010, at 8:30 a.m. before this Court.All parties and counsel shall appear in person for the status conference.The purpose of the conference will be to schedule a trial date if the case is not yet resolved by that time.

¶4Several months later, Fressadi filed a motion wherein among other things, he sought to correct the December 2009 minute entry, add another defendant, and requested that thecourt reconsider ordering a mandatory settlement conference.⁴In the same motion, Fressadi also sought sanctions against the Defendants, arguing that they were non-compliant with the "good faith provision of Rule 16(f)," seeking to prohibit them from introducing evidence of variance permits, and requesting a default judgment against them "pursuant to Rule 37(b)(2)(B) and (C)."He argued that his case was "primarily a request of Mandamus for the Town to enforce its zoning ordinances" and that the Defendants"were not interested in settlement because if variances conveniently remove all the zoning ordinance violations; there is no need for a settlement conference."

¶5The court denied Fressadi's request to correct the record and for sanctions, but ordered a mandatory settlement conference.⁵In the same minute entry, the court reaffirmed the pretrial conference order requiring the parties to appear in person on November 16, 2010, at 8:30 a.m. to set a trial date.⁶

¶6Fressadi failed to appear at the November 16 conference.After waiting fifteen minutes, the court began the conference.The court noted that Fressadi did not appear and that he did not contact the court to say he could not be present.The court also noted that the December 11, 2009 order instructed all parties to appear in person at the November conference.

¶7The court examined Rule 16(f), and inquired whether the Defendants were seeking sanctions.The Defendants moved to strike Fressadi's complaint and for dismissal under Rules 16(f)and37(b)(2)(C).⁷The court invited the Defendants to support their requests by stating why the sanction of dismissal, as opposed to other sanctions, was warranted.The court acknowledged that: "Dismissal . . . is, of course, the most onerous of all of the potential sanctions.And I believe that the comments to the rule say that that particular sanction should only be imposed under the most egregious of circumstances."

¶8The Defendants detailed their individual circumstances.According to Kremer, Fressadi's litigation conduct was egregious, and showed that he was trying to extract a settlement from her.She explained that Fressadi was alsosuing her in another lawsuit regarding a sewer line that served her property.One month prior, Fressadi allegedly severed the sewer line, causing Kremer to have to stay in a hotel for weeks until the line could be reconnected.Kremer also asserted that Fressadi removed forty tons of dirt from the base of a retaining wall for an elevated driveway that runs through her property and serves the other Defendants, and the wall collapsed.In addition, Kremer asserted that Fressadi failed to disclose expert witnesses or opinions, and noted that his disclosures were "about a thousand pages of the same material every time."⁸Kremer claimed that Fressadi was simply trying to make her expend money by paying her attorney for the time it took to review non-responsive documents.

¶9The Town stated that it was also involved in other lawsuits initiated by Fressadi.⁹It said it recently filed a dispositive motion in another action, and planned to file one in the instant matter.The Town asserted that Fressadi's only claim against it was to enforce its ordinances, but that it wasdoing so.The Town claimed that Fressadi did not have any legal recourse against any of the Defendants and asserted that Fressadi's claims were also time-barred.Additionally, the Town stated that a different lawsuit involved Fressadi's sewer line, but that Fressadi wanted the Town to pay for installation of his sewer line in this case.It argued that Fressadi's conduct showed that he was filing lawsuits for no purpose other than to extract settlement money from the Defendants.

¶10REEL stated that it became an owner of its property at a trustee sale and had since been sued by Fressadi in four separate lawsuits.According to REEL, Fressadi's claims were meritless because he claimed that REEL exceeded the "allowable lot disturbance" despite the fact that REEL obtained a variance permit.REEL asserted that Fressadi appealed the issuance of the variance permit and lost, but had since filed another appeal to prolong the process.To that end, REEL claimed that during a deposition, it discovered that Fressadi made disparaging remarks about its property to a potential buyer.REEL argued Fressadi's actions showed he was trying to prolong the process and prevent REEL from getting a certificate of occupancy and selling the house.REEL also discussed the effect of the destroyed sewerconnection and the collapsed driveway serving its property.¹⁰REEL asserted that Fressadi was simply exerting financial pressure on it by forcing it to defend multiple actions and incur attorneys' fees.REEL opined that because Fressadi represented himself, he did not have the same pressure.

¶11The superior court ruled:

Upon motion of respective appearing counsel, and the Court finding that plaintiff has not appeared at today's proceeding, and in accordance with the provisions of Rule 16(f)and37(b)(2)(C) of the Rules of Civil Procedure, it is ordered dismissing the plaintiff's Complaint in this action in full with prejudice.

The court further stated:

As previously noted, this matter was properly noticed in the presence of Mr. Fressadi.It was scheduled to begin at 8:30.The Court waited until . . . 8:45 to begin.It is 9:02 and Mr. Fressadi has still failed to appear or contact the Court.This mere failure to participate alone warrants sanctions in accordance with the rule.Additionally, respective counsel have set forth other reasons on the record that support substantively their motion to dismiss being granted.The Court finds there is no just reason for delay and entry of this judgment of dismissal pursuant to Rule 54(b), judgment will so be entered.

¶12Thereafter, Fressadi did not file anything with the court seeking to explain or defend his absence.Instead, hetimely appealed.We have jurisdiction pursuant to Arizona Revised Statutes("A.R.S.")section 12-2101(A)(1)(Supp. 2011).¹¹

ISSUES ON APPEAL AND STANDARD OF REVIEW

¶13Although unclear, we construe Fressadi's argument on appeal to be that the superior court abused its discretion by: (1) failing to hold an evidentiary hearing or make express findings regarding whether Fressadi was at fault for his failure to comply with the court's scheduling order; and (2) failing to determine whether lesser sanctions were appropriate.

¶14We will uphold a sanction dismissing an action unless the record reflects an abuse of discretion.SeeGreen v. Lisa Frank, Inc., 221 Ariz. 138, 153, ¶ 40, 211 P.3d 16, 31(App.2009)(stating standard of review in a non-discovery violation case);see alsoLenze v. Synthes, Ltd., 160 Ariz. 302, 305, 772 P.2d 1155, 1158(App.1989)(stating standard of review in a discovery violation case)."A court abuses its discretion if it commits an...