Court of Appeals of Arizona, First Division, Department D
AREK FRESSADI, an unmarried man, Plaintiff/Counter-Defendant/Appellant,
GV GROUP, L.L.C., an Arizona limited liability company; MG DWELLINGS, INC., an Arizona corporation; BUILDING GROUP, INC., an Arizona corporation; MICHAEL T. GOLEC, an unmarried man; and KEITH VERTES and KAY VERTES, husband and wife, Defendants/Counter-Claimants/Appellees.
Not for Publication – Rule 28, Arizona Rules of Civil Appellate Procedure
Appeal from the Superior Court in Maricopa County Cause No. CV2006-014822 The Honorable Eileen S. Willett, Judge
Arek Fressadi, Pro Se
Israel & Gerity, PLLC, Kyle A. Israel Attorneys for Defendants/Appellees
ANDREW W. GOULD, Presiding Judge
¶1 Plaintiff/appellant/counterdefendant Arek Fressadi appeals from a default judgment in favor of defendants/appellees/counterclaimants GV Group, LLC, MG Dwellings, Inc., Building Group, Inc., Michael T. Golec, and Keith and Kay Vertes (collectively "GV Group") which resulted from the superior court's striking of Fressadi's Second Amended Complaint and his answer to GV Group's counterclaims for failing to appear at a pretrial conference. Because we find that the court abused its discretion in striking the complaint and answer to counterclaims, we reverse.
FACTS AND PROCEDURAL HISTORY
¶1 On October 16, 2003, Fressadi, as owner of parcels 211-10-010 A, B, and C (hereafter Lots 010A, 010B and 010C) in Cave Creek, Arizona, and GV Group, LLC, as owner of parcels 211- 10-003, A, B, and C (hereafter Lots 003A, 003B, and 003C) entered into an agreement titled Declaration of Driveway Easement and Maintenance Agreement ("the DMA"). The DMA provided in part:
1. Easement. The Lots shall have a perpetual, nonexclusive easement over and upon the Driveway for the purpose of access, maintenance, repair and reconstruction of the Driveway and attendant rock retaining walls, and related utilities.
The DMA declared that the easements and covenants were to "run with each lot" and were to be "binding upon all parties having or acquiring any right, title or interest therein" and to "inure to the benefit of any successor to Declarant."
¶2 Before the DMA was executed, GV Group sold Lot 003A to Jocelyn Kremer, such that her lot was not included in the DMA as intended.
¶3 On October 21, 2003, the DeVincenzos purchased Lot 010C from Fressadi. The DMA and the warranty deed for the sale were recorded on October 22, 2003.
¶4 Disputes arose related to the failure to include Lot 003A in the DMA, including disputes as to the use of and maintenance of the driveway, the related costs, and the share of costs the parties were required to pay. After attempts to negotiate Kremer's inclusion in the DMA failed, on October 27, 2005, Fressadi sent an email stating that Kremer was not a party to the DMA, that because she was not included the DMA failed as an agreement between him and GV Group for lack of reciprocity, and that "what remains is an agreement between the DeVincenzos and myself."
¶5 On October 2, 2006, Fressadi filed a complaint against GV Group, alleging in part that, when it executed the DMA, GV Group had misrepresented its authority to bind Lot 003A because it had previously sold that lot to Kremer.
¶6 GV Group answered and filed a counterclaim. GV Group alleged in part that it was in the home construction business and that Fressadi had on various occasions through various means blocked or otherwise obstructed use of the driveway and threatened violence against workers hired to construct homes on the properties, resulting in construction delays causing damages.
¶7 Real Estate Equity Lending, Inc. ("REEL") acquired Lot 003C on May 28, 2008, pursuant to a ...