Arizona Court of Appeals Division One Holds That the Ex Parte Communication Between Trial Court and a Party’s Counsel Did Not Warrant a New Trial Because There Was No Reasonable Probability That the Opposing Party was Prejudiced as a Result of the Ex Parte Communications.

In 1996, Marie Long (“Long”) and her husband executed a revocable living trust agreement.  After her husband’s death, Long named her niece, Genevieve Olen (“Olen”), and Olen’s husband as successor trustees and sole remainder beneficiaries of the trust.  After Long suffered a stroke in 2005, Olen moved Long to San Diego, where Olen resided.  The move, however, triggered a heated response from Long’s sisters in Arizona.  Olen eventually agreed to return Long to Arizona, but filed a petition to be appointed as Long’s guardian in Arizona.  Olen retained Brenda Church (“Church”) as her counsel in the proceedings. 

Beginning in July 2008, Olen filed several petitions for approval of numerous fees she incurred from 2005 through 2008.  These petitions and the objections of Long’s sisters eventually led to a series of evidentiary hearings in the probate court.  Commissioner Ellis presided over the hearings.  On March 26, 2011, Commissioner Ellis electronically filed a minute entry ruling approving the requested fees.  Shortly before the probate court issues its substantive ruling, however, Commissioner Ellis’s judicial assistant sent an e-mail of the draft ruling to Church.  The judicial assistant did not copy the sisters’ attorney on the e-mail.  Although the e-mail did not request comments, Church responded by suggesting two minor factual changes to the draft.  The judicial assistant replied with an e-mail indicating the suggested changes would be made.  Two months later, Church disclosed the March 15, e-mails and produced them to the sisters’ attorney.  The presiding superior court judge immediately assigned the case to Judge Budoff to determine whether the ex parte communications required a new trial.  Several months later, Judge Budoff issued a detailed minute entry denying the request for a new trial.  Long’s sisters timely appealed. 

On appeal, the Arizona Court of Appeals affirmed the trial court’s ruling, holding that no reasonable probability existed that the sisters were prejudiced as a result of the ex parte communications.  Rule 59 of the Arizona Rules of Civil Procedure provides that a new trial may be granted for “[i]rregularity in the proceedings of the court . . . whereby the moving party was deprived of a fair trial.”  Ariz. R. Civ. P. 59(a)(1).  In McElhanon v. Hing, 151 Ariz. 403, 728 P.2d 273 (1986), the Arizona Supreme Court refused to grant a new trial following ex parte communications between the trial court and the plaintiff’s counsel during trial because “the judge never lost the appearance of impartiality” and “[t]he misconduct did not prejudice [the] defendant.”  Id. at 411, 727 P.2d at 281.  The Court of Appeals determined that reversal was also inappropriate in this case because Long’s sisters were unable to state how they were actually prejudiced by the improper contacts.  The Court of Appeals, therefore, affirmed the trial court’s ruling.

Judge Winthrop authored the opinion; Judges Johnsen and Orozco concurred.