Arizona Court of Appeals Division Two Holds That a Trial Court Cannot Dismiss a Party’s Claims for Failure to Make a Court-Ordered Appearance at a Pretrial Conference Absent Willful or Deliberate Disregard.

Simon Lewis filed a request for a formal probate proceeding and retained attorney Andrew Gorman to represent him.  Mr. Lewis lived in Texas and was permitted to appear telephonically for several hearings.  At the July 2010 pretrial conference, Mr. Gorman appeared telephonically on behalf of Mr. Lewis.  During this hearing, the judge set a trial date of October 5 and a final pretrial conference for September 7 and then sua sponte stated that he expected Mr. Lewis to appear in person.  The court then issued a minute entry stating “Plaintiff, Simon Lewis shall appear in person and [sic] said hearings.”  The minute entry was only sent to the attorneys in the matter.  Both Mr. Lewis and his attorney, Mr. Gorman, failed to appear for the September 7 hearing.  The court initiated telephonic contact with Mr. Gorman and asked him why his client did not appear and why he had not yet responded to the Defendant’s counterclaim.  Mr. Gorman stated that it was difficult for his client to travel and that he was planning to respond to the counterclaims that day.  The court emphasized that it had prohibited any filings after the date of the pretrial conference and decided to grant the relief requested in the counterclaims and vacate the trial date. 

Mr. Gorman filed a motion for reconsideration, saying that personal problems had impaired his preparation for the pretrial conference and that it was unduly burdensome for Mr. Lewis to attend the hearing in person due to the expense of travel.  The court denied the motion without any findings.  Mr. Lewis filed a document stating that his attorney never informed him that he was to appear in person.  The court deemed the document a motion for reconsideration and denied the document without making any findings. 

The Court of Appeals reversed the trial court’s order of sanctions.  The Court noted that Arizona Rule of Civil Procedure 16(f), which permits a wide range of sanctions for the failure to make a court-ordered appearance at a pretrial conference, is designed to coerce cooperating with disobedient or recalcitrant parties/attorneys, rather than as a form of punishment.  Accordingly, a trial court has less discretion when imposing severe sanctions, which are disfavored and must be based on a determination of willfulness or bad faith.  Although no Arizona cases have imposed sanctions for a party’s failure to personally appear under Rule 16(a), the Court noted that other jurisdictions have required willful disregard of the court’s authority before allowing dismissal as a sanction. 

The Court reasoned that Mr. Lewis failed to attend the hearing because his attorney did not inform him that the court had ordered his presence and that Mr. Lewis’s difficulty traveling alone could have precluded the imposition of sanctions.  The Court determined that the circumstances of this case were not aggravated and did not permit the drastic sanctions imposed.  The Court further held that the failure to timely respond to Defendant’s counterclaims did not merit the sanctions.  Unlike Rule 55(a) default, when default is imposed by a sanction, the fault of an attorney is not attributed to his client.  The trial court can decide on remand who was at fault for the failure to respond and which sanctions are appropriate, if any. 

Reversed and remanded.  

Judge Eckerstrom authored the opinion; Judges Howard and Brammer concurred.