Lewis v. Lewis (In re Estate of Lewis)
Decision Date | 29 March 2012 |
Docket Number | No. 2 CA–CV 2011–0020.,2 CA–CV 2011–0020. |
Citation | 229 Ariz. 316,275 P.3d 615,631 Ariz. Adv. Rep. 15 |
Parties | In re the ESTATE OF Frances B. Lewis.Simon P. LEWIS, Plaintiff/Counterdefendant/Appellant, v. Mark Alexander LEWIS, individually and as trustee of the Frances B. Lewis Trust, Defendant/Counterclaimant/Appellee. |
Court | Arizona Court of Appeals |
OPINION TEXT STARTS HERE
Simon P. Lewis, Dallas, TX, In Propria Persona.
Eugene J. Lane, Oracle, Attorney for Defendant/Counterclaimant/Appellee.
¶ 1 In this probate action, the trial court sanctioned appellant Simon Lewis by dismissing his complaint, entering a default judgment against him, and overruling his objection to the informal probate of the will of Frances B. Lewis. The court imposed these sanctions after determining that Simon had failed to comply with a court order to personally appear at a scheduled pretrial conference and that Simon had not filed a timely reply to counterclaims by the appellees. On appeal, Simon argues the court abused its discretion in sanctioning him for his nonappearance and penalizing him for the negligence of his attorney. We agree that an abuse of the court's discretion clearly appears from the record before us. See Camelback Partners v. Weber, 9 Ariz.App. 452, 454, 453 P.2d 548, 550 (1969). We therefore reverse the court's rulings and remand for further proceedings consistent with this decision.
¶ 2 The issues presented on appeal require us to set forth the procedural background of this case in some detail. Appellee Mark Lewis, who serves as trustee of the Frances B. Lewis Trust (“the trust”) and as personal representative of the Estate of Frances B. Lewis (“the estate”), filed an application for an informal probate of Frances's will in late 2009. Simon, who resides in Texas, filed a pro se objection and request for a formal probate proceeding in March 2010. He also filed a pro se complaint against Mark both as an individual and as trustee. Counsel for the estate, Eugene Lane, filed an answer to the objection. Lane also filed an answer to the complaint on behalf of Mark both individually and as trustee.
¶ 3 In April 2010, the trial court held a status review hearing at Simon's request. Simon appeared telephonically at the hearing. No other parties or counsel were present, however, because Simon apparently had not provided them proper notice of the hearing. The court scheduled another status review hearing for June and gave Simon permission to appear there telephonically.
¶ 4 In May, attorney Andrew Gorman, of Gorman & Jones, PLC, filed a notice of appearance on behalf of Simon. Gorman moved to amend Simon's objection and complaint and requested to appear telephonically at the upcoming hearing. The trial court granted that unopposed request.
¶ 5 At the June 2010 review hearing, the trial court reserved ruling on the motions to amend and scheduled a pretrial conference for the following month. The court granted Gorman leave to appear telephonically at the next hearing without any objection. Neither the parties nor the court addressed whether Mark or Simon were required to attend future hearings personally. Before the scheduled pretrial conference took place, Lane filed an objection to Simon's motions to amend. The court overruled the objection and granted the motion to amend the complaint in an order filed June 18, 2010.1
¶ 6 At the July 2010 pretrial conference, Mark and Lane appeared in person; Gorman appeared telephonically on behalf of Simon. Unaware that the trial court had ruled on the motion to amend the complaint, Lane asked that the court sanction Simon for his failure to adequately answer an interrogatory and clarify his cause of action. The court informed Lane that a copy of the order amending the complaint had been sent to him, according to the court's record, and it had “no idea why [he] didn't get a copy of it.” The court thus declined to impose any sanctions and directed Lane to make any future requests for sanctions in compliance with the rules of procedure.
¶ 7 The following exchange then occurred regarding scheduling:
Mr. Gorman.
Now, we will—I have no problem setting ... some deadlines for the disclosure, deadlines for filing dispositive motions. Certainly, you have to give me some timeframes right now, if you would like to have for your records.
....
Okay. We'll set one Pretrial Conference. That will be heard on Tuesday, August the 31st at 10:00 in the morning.
When Lane indicated he had a scheduling conflict with the proposed pretrial conference, the exchange continued:
All right. Thank you, both, and all parties. I do expect Mr. Simon Lewis to appear personally in this courtroom.
MR. GORMAN: Yes, absolutely.
Before the court raised the issue of Simon's presence sua sponte, no discussion had occurred on the topic, and none followed the court's isolated remark. With respect to appearances, the court's July 13, 2010 minute entry contained the following order: “Plaintiff, Simon Lewis shall appear in person and [sic] said hearings.” The minute entry indicates it was only distributed to attorneys Lane and Gorman.
¶ 8 Leading up to the next pretrial conference, Lane filed an answer on July 20, 2010, which contained four counterclaims on behalf of the estate and trust. Gorman never filed a request to appear telephonically at the upcoming hearing, and the trial court never allowed him to so appear. At the scheduled pretrial conference in September 2010, both Lane and Mark appeared in person. No one appeared on behalf of Simon. This prompted the court to engage in the following discussion with Lane:
THE COURT:.... Have a seat, Mr. Lewis and Mr. Lane.
Are we asking, as Mr. Gorman requested, that he be allowed to appear by phone? I probably granted that.
As I recall from the—from my recollection is that he [sic] made it abundantly clear that he and the client shall appear at this hearing.
Lane went on to complain at some length about Gorman failing to answer his interrogatory or his counterclaim. Lane concluded by saying he was “willing to hear judgment on the counterclaim.”
¶ 9 The trial court then initiated telephonic contact with Gorman but failed to apprise him of the above discussion. After announcing this was the time set for the pretrial conference, the court had the following discussion with Gorman:
Has that been filed?
MR. GORMAN: The response to the counterclaim was—our response was sent to Mr. Lewis, my client. We spoke about it on Friday to make a few changes to it and it's going to be filed. Our runner goes on tomorrow. Our runner goes tomorrow.
The court emphasized that it had prohibited any filings after the date of the pretrial conference. The court then ordered Simon's objection “set aside” and “stricken,” granted the relief requested in the counterclaims, and vacated the trial date. After directing Lane to submit a formal order, the court explained its reasons further:
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