Court of Appeals of Arizona, First Division, Department E
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County Cause No. CV2009-013583 The Honorable Colleen L. French, Commissioner.
Salvador Perez-Saldaña Attorney at Law Phoenix By Salvador Perez-Saldaña Attorney for Plaintiff/Appellant.
Parrillo, Weiss & O'Halloran Tempe By Tico A. Glavas Attorneys for Defendant/Appellee Blanca Griego Guzman
Farley, Seletos & Chocate Phoenix By Benjamin R. Eid Attorneys for Defendant/Appellee Vincente Soto Espinoza
PATRICIA K. NORRIS, Presiding Judge.
¶1 Plaintiff/Appellant Raymundo Hernandez appeals the superior court's dismissal of his case with prejudice for his counsel's failures to appear at a scheduled pretrial conference and file a joint pretrial statement. Because, on this record, the superior court should not have dismissed Hernandez's case as a sanction, we reverse the dismissal order and remand for further proceedings consistent with this decision.
FACTS AND PROCEDURAL BACKGROUND
¶2 In April 2009, Hernandez sued Defendants/Appellees Blanca Griego Guzman and Vicente Soto Espinoza for negligence arising out of a car accident. After compulsory arbitration, an arbitrator entered an award in favor of Guzman and Espinoza. Hernandez appealed the arbitration award to the superior court and requested a jury trial.
¶3 The superior court set a three-day jury trial to begin on March 12, 2012. By minute entry filed on September 2, 2011, the court required "[c]ounsel who will be the trial lawyer on the case" to attend the final trial management conference on February 28, 2012 ("February 2012 conference"). The court also required counsel to file a final joint pretrial statement by February 21, 2012, pursuant to Rule 16(d) of the Arizona Rules of Civil Procedure. The parties, however, did not file such a statement.
¶4 At the February 2012 conference, Hernandez's counsel of record, Salvador Perez-Saldaña, did not appear. Instead, Alicia Montoya-Sanchez appeared as Hernandez's counsel ("new counsel"). Neither Perez-Saldaña nor new counsel had filed a notice of substitution or association of counsel.
¶5 Three days before the scheduled jury trial, on March 9, 2012, the superior court held a telephonic status conference with counsel regarding the trial ("March 2012 conference"). Perez-Saldaña appeared for Hernandez. Based on the failures of Perez-Saldaña, Hernandez's counsel of record "to comply with this Court's order regarding Rule 16(d)" and "appear and participate at the Final Trial Management Conference, " the superior court dismissed Hernandez's case with prejudice and vacated the trial. Subsequently, the court denied Hernandez s Rule 59 motion for new trial and to set aside the dismissal.
¶6 On appeal, Hernandez essentially argues the superior court abused its discretion by dismissing his case and sanctioning him for his counsel's conduct because it did not hold an evidentiary hearing to determine whether he or his counsel was at fault, the violations were due to willfulness or bad faith, and ...