Mozes v. Daru, 2

• Decision Date: 06 December 1966
• Docket Number: No. 2,CA-CIV,2
• Parties: Adolph MOZES, Appellant, v. Robert DARU, Seymour Lenwood Schorr, and Norman S. Fenton, Appellees. * 247.
• Court: Arizona Court of Appeals

Page 957

420 P.2d 957

4 Ariz.App. 385

Adolph MOZES, Appellant, v. Robert DARU, Seymour Lenwood Schorr, and Norman S. Fenton, Appellees. ^*

No. 2 CA-CIV 247.

Court of Appeals of Arizona.

Dec. 6, 1966.

Rehearing Denied Feb. 3, 1967.

Adolph Mozes, Robert Daru, S. Lenwood Schorr, Norman S. Fenton, in pro. per.

McGUIRE, Superior Court Judge.

This case was brought by Adoph Mozes, hereinafter referred to as the plaintiff or appellant, against Robert Daru, Seymour Lenwood Schorr and Norman S. Fenton as defendants, also referred to herein as appellees, upon a complaint for alleged malicious wrongs interfering with the business and welfare of the plaintiff and praying judgment against defendants for $245,000 actual and $250,000 punitive damages.

Both the amended complaint and the counterclaims were long and involved and it is unnecessary for the disposition of this appeal to set forth the facts alleged. All defendants denied liability and alleged that the causes of action in the amended complaint were barred by reason of res judicata and the Statute of Limitations. Fenton and Daru filed counterclaims at time of answer. Schorr joined in the counterclaims on June 26, 1963 by the filing of the affidavit hereinafter mentioned. The defendants prayed for injunctive relief against the further filing of certain lawsuits and the making of defamatory statements, as well as for actual and punitive damages.

The case was originally set down for pretrial on June 25, 1963 at 9:30 a.m. and for jury trial on the same day at 1:30 p.m. before Judge Farley. A motion for summary judgment had been filed by the defendant Schorr against plaintiff upon the complaint on December 24, 1962 and denied by the court commissioner on January 22, 1963. On June 19, 1963, only six days before the time fixed for pretrial and trial, a motion for summary judgment was filed on behalf of defendants Daru and Fenton based upon the affidavit, exhibits and memorandum of authorities submitted on the previous motion of defendant Schorr, as well as upon the attached affidavit of Norman S. Fenton and upon all exhibits and pleadings theretofore filed. Defendant Schorr also re-urged his motion.

The matter came on for pretrial at the scheduled hour and extreme difficulties developed. Apparently the pretrial consumed the entire day of the 25th for the minutes of that day recite 'pretrial conference is continued to June 26, 1963 at 9:30 a.m.'

On the 26th defendants filed an affidavit in support of the Motion for Summary Judgment and also asked leave to amend the Amended Answers.

The minute entry for the 26th opens with the unusual statement:

'The Court states that it feels that more could be accomplished if the Court conferred with each side individually rather than all together at the same time. Unless the parties are willing to so stipulate the Court would not proceed on that basis, but, from attitudes yesterday at the Pretrial, it is obvious that there is a lot of personal feeling involved in this matter and more could be accomplished by conferring individually in Chambers. It is so stipulated.'

At 3:15 p.m. the court, after a lengthy statement in the minutes in which however the question of whether the trial would be by jury was not mentioned, entered the following order:

'IT IS ORDERED that Mr. Fenton prepare a Temporary Injunction; that the Pretrial be terminated by the Court; that a Temporary Injunction be granted restraining Mr. Mozes from the acts complained of; that the question of the Counterclaim be continued until January 7, 1964, unless, on motion of counsel, it be called up for an earlier disposition; further directed that Judge Farley will retain jurisdiction over this matter until final determination.

'IT IS FURTHER ORDERED that the Defendants' Motion for Summary Judgment is granted and the Complaint is dismissed with prejudice.'

On July 17, 1963 the court entered a judgment directing (1) that the counterclaims of the defendants be tried by the court without a jury at a later date and (2) granting a restraining order pendente lite against the plaintiff which was quite lengthy. In substance, it restrained the plaintiff from prosecuting any litigation or action against the defendants with respect to matters alleged in the Amended Complaint other than those presently pending and also restrained plaintiff from writing or uttering derogatory or detrimental statements against the defendants, as set forth in detail in the order.

The judgment contained the additional clause:

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Judgment be, and the same is hereby entered in favor of the defendants Robert Daru, Seymour Lenwood Schorr and Norman S. Fenton against the plaintiff Adolph Mozes, dismissing the plaintiff's amended complaint on the merits and with prejudice.'

The trial upon the counterclaims was held in December, 1963 by the court sitting without a jury and lasted six days. The final judgment was rendered June 16, 1964 in favor of the defendants and against the plaintiff, awarding the defendants compensatory damages in the sum of $476.25 and punitive damages in the sum of $1,000 as well as injunctive relief.

After plaintiff's motion for a new trial was denied, this appeal was taken. The plaintiff, who is not an attorney, did have counsel during certain phases of the trial litigation and represented himself part of the time and is representing himself on this appeal. The defendants are attorneys and represented themselves.

The errors assigned by appellant may be summarized as follows:

1. Error in allowing defendant Schorr, one and one-half years after his answer to the amended complaint was filed to file a counterclaim, upon the ground that such counterclaim should have been asserted at the time of the answer.

2. Error of the trial court in hearing the motion for summary judgment on less than ten days written notice.

3. Error in granting a motion for summary judgment previously denied.

4. Error in granting the motion for summary judgment for the reason that the record showed that there were triable issues.

5. Error in denying plaintiff a jury trial on the counterclaim.

The first error assigned has not been argued in the brief and must be deemed abandoned. Stallcup v. Coscarart, 79 Ariz. 42, 282 P.2d 791 (1955); Colboch v. Aviation Credit Corporation, 64 Ariz. 88, 166 P.2d 584 (1946).

As to errors numbered 2, 3 and 4, the first question to be answered is whether this court has jurisdiction to consider the appeal from the summary judgment of July 17, 1963 dismissing the amended complaint, since the notice of appeal was filed more than one year after entry of this judgment. Appellant, in support of the timeliness of his appeal, relies upon the provisions of Rule 54(b). The judgment of July 17, 1963 disposed of only part of the claims and did not contain 'an express determination that there is no just reason for delay' as prescribed by Rule 54(b).

The Supreme Court of Arizona has passed upon the requirement of such a finding in Stevens v. Mehagian's Home Furnishings, Inc., 90 Ariz. 42, 365 P.2d 208 (1961). See also the recent decisions of this court in Pegler v. Sullivan, 4 Ariz.App. 149, 418 P.2d 395 (1966); Rail N Ranch Corp. v. State, 4 Ariz.App. 301, 419 P.2d 742 (1966). In view of the failure to make such an express determination, the judgment of July 17, 1963 did not become final until the judgment of June 16, 1964 and the appeal is timely.

The second error alleged is the fact that the court heard and ultimately granted the motion for summary judgment upon six days notice instead of ten days. A motion for summary judgment may be made at any time by the defendant upon ten days' notice of the hearing thereon. Rule 56(c) as amended, Arizona Rules of Civil Procedure, 16 A.R.S. No order was obtained shortening the time of notice under the provisions of Rule 6(c), Arizona Rules of Civil Procedure.

However, there is no suggestion in either the briefs or oral argument or in the papers copied into the abstract of record that plaintiff needed more time to file some other affidavit or to take other action to oppose the motion for summary judgment on its merits. In the absence of a showing of prejudice, this court holds the error harmless, since the ten-day notice provision is not jurisdictional. Hale v. Brown, 84 Ariz. 61, 323 P.2d 955 (1958).

The third error raises the question of the permissibility of renewing a motion for summary judgment after such motion has once been denied. Obviously a party cannot be allowed to argue repeatedly a motion for summary judgment upon the same record after the motion has been denied, nor resort to repeated filing of such motion when only minor changes have occurred in the record. Care must be taken to eliminate 'horizonal appeal' or the practice of bringing substantially the same motion before different superior court judges in the hope of eventually finding one who will make a favorable ruling. These are clear abuses and should not be tolerated. No such abuse is shown here.

In this case a motion was filed by Schorr and denied by the court commissioner. This did not preclude the other two defendants from making a similar motion and having it heard before any judge to whom the matter was regularly assigned. Schorr later joined in this new motion. By that time other papers had been added to the record. While extreme care should be used in the granting of a motion for summary judgment, no purpose would be served by forcing a case to trial once it clearly appears that there is no genuine issue of fact between the parties notwithstanding a previous motion for summary judgment has been made and denied.

Hence, there is no ironclad rule that a denial of such a motion is res judicata and absolutely precludes renewal or the making of a subsequent motion for the same relief.

The fourth error attacks the granting of the motion for summary judgment on the grounds that there were triable issues.

We must decide...