Zimmerman v. Shakman

• Decision Date: 11 February 2003
• Docket Number: No. 1 CA-CV 02-0012.,1 CA-CV 02-0012.
• Citation: 62 P.3d 976,204 Ariz. 231
• Parties: Richard B. ZIMMERMAN, Plaintiff-Appellant, v. Robert SHAKMAN, Defendant-Appellee.
• Court: Arizona Court of Appeals

62 P.3d 976

204 Ariz. 231

Richard B. ZIMMERMAN, Plaintiff-Appellant, v. Robert SHAKMAN, Defendant-Appellee.

No. -0012.

Court of Appeals of Arizona, Division 1, Department C.

February 11, 2003.

Renaud, Cook & Drury, P.A. By Michael Salcido, Phoenix, Attorneys for Appellant.

Kessler Law Offices By Eric W. Kessler, Mesa, Attorney for Appellee.

OPINION

IRVINE, Judge.

¶ 1 Richard Zimmerman challenges the trial court's order dismissing this case. In the proceedings below, the trial court granted Robert Shakman's motion in limine to preclude the introduction of evidence by Zimmerman. Shakman then moved to dismiss the complaint on the grounds that Zimmerman could not prove his case at trial because he could not introduce evidence. The trial court granted the motion.

¶ 2 The issue raised in this appeal is whether the trial court properly barred the introduction of any evidence by the plaintiff for nondisclosure and then dismissed the case for lack of evidence. We hold that these actions are the equivalent of a dismissal for nondisclosure and must be accompanied by an evidentiary hearing to determine whether the party or his attorney was at fault. Accordingly, we reverse and remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 3 In September 1995, Richard Zimmerman sued Robert Shakman and three related businesses, alleging breach of promissory notes, fraud, and breach of contract. The case against Shakman was scheduled to go to trial in January 1999 and the parties filed a joint pretrial statement on December 31, 1998. The statement listed uncontested facts, contested issues of fact and law, and witnesses and exhibits to be used by each party. Each party objected to the exhibits and witnesses proposed by the other on the grounds that he had never received a Rule 26.1 disclosure statement or list of witnesses and exhibits from the other party. Shakman's attorney certified that he had exchanged copies of the listed exhibits, or had otherwise made them available for inspection and copying. One of the contested issues that Zimmerman raised was whether Shakman could introduce evidence due to nondisclosure. Shakman responded that Zimmerman had similarly failed to disclose and that many of the witnesses and exhibits for each party were essentially the same.

¶ 4 The case did not go to trial as scheduled because the parties entered into a settlement agreement. The agreement was never entered in court, so trial was reset for March 21, 2000, with all information to be disclosed and final lists of trial witnesses and exhibits to be filed no later than January 10, 2000.

¶ 5 By letter dated January 6, 2000, Shakman's attorney reminded Zimmerman's attorney that he had never received Zimmerman's list of witnesses and exhibits, Rule 26.1 disclosure statements, and copies of his exhibits. On January 10, 2000, Zimmerman filed his supplemental list of witnesses and exhibits. Three days later, Shakman filed a motion in limine and for sanctions stating that he still had not received the requested disclosures and documents from Zimmerman. Shakman asked the trial court to preclude Zimmerman from introducing evidence at trial. Shakman also filed a motion for partial summary judgment on the breach of contract claim.

¶ 6 Zimmerman was changing lawyers during this period and did not respond to the motions. The trial court, noting the lack of response, deemed that Zimmerman consented to the motions and granted them. Shakman immediately filed a motion to dismiss the complaint, arguing that with the granting of the motion in limine Zimmerman could not introduce any evidence at trial to prove his claims. Four days later, Zimmerman filed a motion for reconsideration of the court's ruling or for an enlargement of time to respond to the motions.

¶ 7 The trial court denied the motion for reconsideration. Nevertheless, the trial court vacated the trial date, denied the motion to dismiss, and, on its own motion, directed the parties to file memoranda regarding the enforceability of the terms of the parties' January 1999 settlement agreement. The court ultimately granted Zimmerman's motion to enforce the settlement agreement. That ruling was reversed on appeal.

¶ 8 Upon remand, Shakman renewed his motion to dismiss. Noting that the previous trial court judge had granted the motion in limine, denied the motion for reconsideration, and vacated the trial date, the new judge stated that while he might "have imposed a different sanction after holding a hearing ... it [was] not [the trial] [c]ourt's function to serve as an appellate court for a lateral appeal of another Superior Court judge's ruling." Because he read the order granting the motion in limine as precluding Zimmerman from introducing any evidence at trial, the trial court granted Shakman's motion to dismiss the complaint.

¶ 9 Zimmerman filed a motion to reconsider the ruling, which was denied. The court entered judgment in favor of Shakman and awarded him attorney's fees of $35,412. Following the denial of Zimmerman's motion for new trial, Zimmerman appealed from the judgment, the order denying the motion for new trial, and all other final rulings.

DISCUSSION

¶ 10 We will overturn the trial court's rulings on the exclusion of evidence only for "abuse of discretion or legal error and prejudice." Brown v. United States Fid. & Guar. Co., 194 Ariz. 85, 88, ¶ 7, 977 P.2d 807, 810 (App.1998). In reviewing a dismissal for discovery violations, we will uphold the trial court's order unless the record reflects a clear abuse of discretion. Wayne Cook Enter., Inc. v. Fain Properties Ltd. P'ship, 196 Ariz. 146, 147, ¶ 5, 993 P.2d 1110, 1111 (App. 1999). "The trial court's discretion in dismissing a case for discovery violations `is more limited than when it employs lesser sanctions.'" Id. (quoting Lenze v. Synthes, Ltd., 160 Ariz. 302, 305, 772 P.2d 1155, 1158 (App.1989)).

¶ 11 Zimmerman argues on appeal that by granting the motion in limine, the trial court effectively entered a default judgment for an alleged failure to obey a discovery order without giving him an evidentiary hearing on whether he, rather than his counsel, obstructed discovery. He argues that dismissal of his case was unjustified because a sanction so extreme "is warranted only when the court makes an express finding that a party, as opposed to his counsel, has obstructed discovery, and that the court has considered and rejected lesser sanctions as a penalty," quoting from Wayne Cook Enterprises, 196 Ariz. at 149, ¶ 12, 993 P.2d at 1113.

¶ 12 A pretrial motion in limine is generally used as a substitute for evidentiary objections at trial. State v. West, 176 Ariz. 432, 442, 862 P.2d 192, 202 (1993). Such motions have also been employed in civil cases as a means to exclude evidence from trial for violations of the disclosure rules. See Jones v. Buchanan, 177 Ariz. 410, 413, 868 P.2d 993, 996 (App.1993)

. Jones illustrates that a motion in limine may be used to exclude evidence that is not properly disclosed under Rule 26.1, Arizona Rules of Civil Procedure ("Ariz. R. Civ.P."). 177 Ariz. at 412-14,

868 P.2d at 995-97. When a motion in limine is used to enforce the provisions of Rule 26.1, it is effectively a request for sanctions under Rule 37(c), Ariz. R. Civ. P. As such, it must be considered and reviewed using the standards of Rules 26.1 and 37(c) and the cases that have applied them.

¶ 13 The policy behind the disclosure rules is not to create a "weapon" for dismissing cases on a technicality. Allstate Ins. Co. v. O'Toole, 182 Ariz. 284, 287, 896 P.2d 254, 257 (1995). The disclosure rules are designed to provide parties "a reasonable opportunity to prepare for trial or settlement—nothing more, nothing less." Bryan v. Riddel, 178 Ariz. 472, 477, 875 P.2d 131, 136 (1994). Sanctions for abuses of discovery or disclosure "must be appropriate, and they must be preceded by due process." Montgomery Ward & Co. v. Superior Court, 176 Ariz. 619, 622, 863 P.2d 911, 914 (App.1993).

¶ 14 The supreme court has stated that the disclosure rules "should be interpreted to maximize the likelihood of a decision on the merits." Allstate, 182 Ariz. at 287, 896 P.2d at 257. Courts must use common sense in applying the rules, with an eye to the specific facts, and

[d]elay, standing alone, does not necessarily establish prejudice. Every late disclosure will involve some delay, but the relevant question must be whether it is harmful to the opposing party or to the justice system. A slight delay in a case such as this, where the trial date has not yet been set, clearly may be less prejudicial than that resulting from an attempt to disclose new witnesses just before trial.

See, e.g., Jones v. Buchanan, 177 Ariz. 410, 413, 868 P.2d 993, 996 (Ct.App.1993)

. Each situation must necessarily be evaluated on its own facts.

Id. at 288, 896 P.2d at 258. Factors supporting the exclusion of undisclosed evidence "gain strength as the trial nears." Ariz. R. Civ. P. 37(c), comment to 1996 and 1997 amendments.

¶ 15 The trial court granted the motion to dismiss because the judge previously assigned to the case had ordered that Zimmerman could not introduce evidence at trial. Shakman argues that the earlier ruling must be followed because it became the "law of this case." The supreme court has recognized, however, that "[a]t the trial court level, the doctrine of the law of the case is `merely a practice that protects the ability of the court to build to its final judgment by cumulative rulings, with reconsideration or review postponed until after the judgment is entered.'" State v. King, 180 Ariz. 268, 279, 883 P.2d 1024 (1994) (quoting 1B James W. Moore, Moore's Federal Practice ¶ 0.404[4.1] (2d ed.1992)). The doctrine does not prevent a judge from reconsidering nonfinal rulings, "[n]or does it prevent a different judge, sitting on the same case, from reconsidering the first judge's prior, nonfinal rulings." Id.

¶ 16 As noted...