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: Lewis v. Lewis (In re Estate of Lewis), 229 Ariz. 316, 275 P.3d 615, 631 Ariz. Adv. Rep. 15 (Ariz. App. 2012)
• 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

229 Ariz. 316

275 P.3d 615

631 Ariz. Adv. Rep. 15

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.

No. 2 CA–CV 2011–0020.

Court of Appeals of Arizona, Division 2, Department A.

March 29, 2012.

Simon P. Lewis, Dallas, TX, In Propria Persona.

Eugene J. Lane, Oracle, Attorney for Defendant/Counterclaimant/Appellee.

OPINION

ECKERSTROM, Presiding Judge.

¶ 1 In this probate action, the trial court sanctioned appellantSimon 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.SeeCamelback 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.

Factual and Procedural Background

¶ 2 The issues presented on appeal require us to set forth the procedural background of this case in some detail.AppelleeMark 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:

THE COURT:....I'm going to set the matter for a half day.I'm going to give it—the firm trial date will be Tuesday, October 5th.

MR. LANE: Okay.

THE COURT: Beginning at 1:00.

Mr. Gorman.

MR. GORMAN: Yes, sir.

THE COURT: That's the date.You got it?

MR. GORMAN: I got it.

MR. LANE: October 5th?

THE COURT: Yes, sir.

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:

THE COURT: We'll go Tuesday, September 7th at 10:00.There will be no dispositive motions filed after that date.There will be no discovery allowed past that date, Tuesday, September 7th, 10:00 in the morning.

MR. LANE: Okay.Thank you.

THE COURT: Okay.Nothing posts that date, absent a Court order.So whatever discovery you wish to have filed, they'll be filed no later than 10:00, Tuesday, September 7th.

MR. GORMAN: Okay.

MR. LANE: Okay.

THE COURT: We've got our trial date.That is Tuesday, October the 5th at 1:00.And we've got a half a day and that's more than enough time, I think, to address this case.

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.

MR. LANE: Your Honor, I believe at the last one you said that they have to make their appearances, both of them.

THE COURT: I did order Mr. Simon Lewis to appear in person.Did I not?

MR. LANE: Yes.

THE COURT: Is Mr. Gorman present?

MR. LANE: No. I haven't seen him.I wouldn't know what he looks like, so I don't know.

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.

THE COURT: Any word from Mr. Gorman or Mr. Simon Lewis?

MR. LANE: Your Honor, I have had no contacts, whatsoever.

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.”

¶ 9The 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:

THE COURT: Good morning.Your client is not here.Mr. Simon Lewis was ordered to appear.There is some debate as to whether you were actually ordered to appear today, sir.

MR. GORMAN: Yes.

THE COURT: Any regards as to where your client might be?

MR. GORMAN: My client is out of state, but I have, as far as scheduling matters go, yeah, I have full reign to go ahead.I have a schedule in front of me.

THE COURT: Mr. Gorman, we were set for trial on October 5th and Mr. [Simon] Lewis was ordered to appear today and the Minute Entry is unclear as to whether you were actually ordered to appear today.But most importantly, Mr. Simon, your client, was ordered to appear today.You all seem a little unprepared for this hearing.You are aware that today was set as a Pretrial Conference?

MR. GORMAN: Yes.

THE COURT: Okay.Again, any explanation as to why your client is not here?

MR. GORMAN: I have none.I don't know.I don't know why he's not there.

THE COURT: He was—you are aware that he was personally—he was ordered to personally appear today, Mr. Gorman?

MR. GORMAN: Yes.It was—yes.That's what we discussed at the last hearing and that's what the Minute Entry states.

THE COURT:....Last communication you had with your client, Mr. Gorman?

MR. GORMAN: Last communication I had with my client was Friday.[ ²]

THE COURT: Any reason to believe that he didn't think he had to be here?

MR. GORMAN: No. It's just—it's very difficult for him to travel here in town for this hearing.He's definitely going to be here for the trial, but it's just—it's very difficult.

THE COURT: Okay.Mr. Lane indicated that he has yet to receive a response to his counterclaim.

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:

No responsive...