Riendeau v. Wal-Mart

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE LEONARD A. RIENDEAU LORRAINE RIENDEAU, and H. ) ) ) Plaintiffs/Appellants, ) ) v. ) ) WAL-MART STORES, INC., an Arizona ) Corporation ) ) Defendant/Appellee. ) ) ) DIVISION ONE FILED: 02-25-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CV 09-0202 1 CA CV 09-0203 (consolidated) DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Yuma County Cause No. S1400CV200600284 The Honorable Denise D. Gaumont, Judge AFFIRMED Leonard A. Riendeau, In Propria Persona H. Lorraine Riendeau, In Propria Persona Thomas, Thomas & Markson, P.C. By Benjamin C. Thomas, Esq. MoniQue A. Simpson, Esq. Attorneys for Defendant/Appellee Inc. K E S S L E R, Judge Yuma Yuma Phoenix Wal-Mart Stores, ¶1 Plaintiff superior court s Leonard entry of Riendeau summary ( Husband ) judgment appeals against the him, the denial of his motion to amend his complaint, and the denial of his motion to vacate summary judgment. Plaintiff H. Lorraine Riendeau court s ( Wife ) appeals the superior denial of a motion to change judge for cause and dismissal of her case for failure to prosecute. Both Husband and Wife appeal the superior court s decision absence after to complete they were a own motion Procedure pursuant ( ARCAP ) 8(b). to conference disconnected appearance in that conference. our pretrial from a in their telephonic We consolidate their appeals on Arizona For the Rule of reasons Civil stated Appellate below we affirm the judgment of the superior court. FACTUAL AND PROCEDURAL HISTORY ¶2 Husband and Wife filed a complaint in the superior court alleging that they each suffered damages as a result of Wife s slip and fall in the gardening section of a Wal-Mart store. Wife alleged personal injury damages and Husband alleged damages for emotional distress as well as the cost of caring for his injured wife. compulsory The superior court certified the case for arbitration pursuant to Arizona Procedure ( Ariz. R. Civ. P. ) 72 76. Rules of Civil The arbitrator denied Wife s claim for special damages because she failed to produce any evidence of the amount of her loss, but granted her $3000 of 2 general damages for pain and suffering. The arbitrator denied Husband s claims for emotional distress and loss of consortium because he failed to produce any evidence of damages. The plaintiffs were also awarded $540 in costs. ¶3 Husband and Wife timely filed a requesting a de novo hearing of all issues. P. 77(a). of appeal See Ariz. R. Civ. Wal-Mart filed a motion for summary judgment against Husband, arguing that that had evidence he notice consortium no damages. Husband s of deposition emotional Husband transcript showed distress loss of to objected or use of his the deposition transcript on the ground that he had been denied an opportunity to review it for error, but did not contend that it was actually erroneous. He also asserted that he had evidence of damages he would proffer at trial. Husband did not file a separate statement of facts and did not attach any admissible evidence to his response. Wal-Mart replied, supporting its use of the deposition and arguing that the Husband s failure to produce any evidence in response to the summary judgment motion demonstrated Wal-Mart s entitlement to summary judgment. court found that Husband had failed to present evidence The to support his claim and granted summary judgment to Wal-Mart on all of Husband s claims in a signed order with no Rule 54(b) language. 3 ¶4 Husband requesting later that the filed a superior Motion court to Vacate reconsider Judgment its summary judgment order, rearguing his claim about the validity of his deposition transcript and claiming that [t]he Court errored [sic] in the granting of a Summary Judgment by not ruling on the Amended Motion as justice.requires [sic] and rewarded the Defendnats [sic] for delaying the action by the granting of s [sic] Summary Judgment against the Plaintiff. 1 infra, ¶ 16, the superior court eventually As discussed denied Husband s motion to vacate after he failed to appear at trial, when all outstanding motions were to be heard. ¶5 In the meantime, Wife filed a motion for disclosure sanctions against Wal-Mart, arguing that Wal-Mart had failed to disclose unfavorable information. The court heard telephonic argument on the motion to vacate and the motion for sanctions. The superior court first granted Husband the opportunity to be heard on preferred his to motion argue to after vacate, Wife s but Husband motion was declined decided. presented argument on her motion for sanctions. telephonic hearing, the plaintiffs 1 were as he Wife During the disconnected. The The Amended Motion likely refers to a motion for leave to file a second amended complaint which Husband filed after briefing on Wal-Mart s summary judgment motion was complete. The second amended complaint alleges gross negligence as opposed to mere negligence, is more factually specific on the defendant s alleged breach of duty, and assigns specific dollar values to the damage award. 4 superior court delayed the proceeding waiting for Wife to reconnect. for several minutes Defense counsel terminated her connection and then reconnected, advising the court that she had called Wife s machine. home and the call had gone to an answering After enduring the delay, the superior court continued the proceeding without further participation by Wife or Husband, and denied Wife s motion for sanctions. 2 ¶6 Wife became convinced that the trial judge was biased against her based on the superior court s completion of the hearing after her disconnection. a change of judge for cause. Wife filed a motion requesting The presiding judge transferred the matter to a new judge who heard the motion to change judge for cause. The hearing judge denied the motion, holding that Wife s motion was untimely because she learned the factual basis for her bias allegation more than 20 days before filing her motion. ¶7 Wife then filed a document captioned Request for Re- Hearing of the Motion to Change Judge for Cause. The superior court treated the filing as a motion for reconsideration and denied it without further briefing. for Clarification with the Wife then filed a Request presiding 2 judge of the superior Because Husband objected to his motions being considered at a hearing where notice was not directed to him, the superior court declined to rule on Husband s motion to vacate at that argument. Husband s motion to amend his pleading was not mentioned at all. 5 court, requesting that the presiding judge reconsider the motion to change judge for cause and also requesting legal advice on how to obtain relief from the superior court s adverse rulings. The presiding judge forwarded the request to the judges who were assigned to the case and the motion to change judge for cause. Wife sent additional correspondence to the presiding judge as well as the trial judge and the motion judge raising the same issues. The presiding judge filed a letter in the record indicating that the denial of the motion to change judge for cause was proper and that the court would not provide Wife with legal advice. presiding Wife filed a Request to Intervene with the judge, arguing that the Code of Judicial Ethics mandates that the presiding judge grant Wife relief from the trial judges allegedly biased rulings. The presiding judge filed additional correspondence declining to review the conduct of other superior court judges. ¶8 Four days before the final pretrial conference, Wife still felt the trial judge would be biased against her and filed a notice in the superior court that she would not participate in any further trial hearings, contending that the superior court s failure to grant her untimely motion made a mockery of the Judicial treated System. Wife s (emphasis filing as conference and denied it. a omitted) request to The superior vacate the court pretrial Wife failed to appear for the final 6 pretrial conference and for the trial. The superior court entered a final judgment dismissing Wife s case with prejudice for failure to prosecute and awarding Wal-Mart its attorneys fees. ¶9 The plaintiffs filed timely notices of appeal. We considered our jurisdiction in a separate opinion issued this day, and determined that we have jurisdiction to review the merits of the superior court s judgment. 3 ANALYSIS ¶10 Husband claims that the superior court erred by granting summary judgment against him, denying his motion to vacate the summary judgment, and denying his motion for leave to file a second amended complaint. Wife claims that the superior court erred by denying her motion to change judge for cause and denying her motion for disclosure sanctions. Both Husband and Wife claim impropriety in the superior court s conclusion of the telephonic hearing in their absence. Wife also appears to contend that her allegation of bias excused her need to attend the final pretrial conference and the trial. 3 In a separately filed opinion, we hold that the superior court had jurisdiction to hear the appeal from arbitration. See ARCAP 28(g) (authorizing partial publication of appellate opinions). 7 I. Damages Husband Failed To Produce Admissible ¶11 The superior court correctly granted Wal-Mart s motion for summary judgment on all of Husband s claims. grant of summary judgment de novo. appropriate genuine issue 56(c)(1). when as to the record any indicates material of We review the Logerquist v. Danforth, 188 Ariz. 16, 18, 932 P.2d 281, 283 (App. 1996). is Evidence Summary judgment that fact. there Ariz. R. is no Civ. P. For an issue of fact to be genuine, there must be evidence from which a reasonable jury could find in favor of the nonmoving party. See Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, 115, ¶ 12, 180 P.3d 977, 980 (App. 2008) (holding that party resisting evidence summary establishing judgment the must existence of come a forward genuine material fact that must be resolved at trial ). issue with of A party may not rest on his pleading to create a genuine issue of material fact. Ariz. R. Civ. P. 56(e) ( When a motion for summary judgment is made . . . an adverse party may not rest upon the mere allegations or denials of the adverse party s pleading . . . . ). ¶12 Wal-Mart s motion relied on Husband s deposition transcript admitting that there was no evidence of emotional distress damages. judgment did not Husband s response to the motion for summary dispute any 8 fact in Wal-Mart s separate statement of facts, nor did he proffer any evidence that he suffered emotional damages. He resisted summary judgment on the bare allegation that he would produce, at trial, evidence whose character or content he did not disclose. The superior court was correct to grant summary judgment against Husband when he failed to produce any evidence in favor of his position. ¶13 Husband claims that the superior considering his deposition transcript. court erred by Husband claims that Wal- Mart failed to comply with Rule 30(e) by failing to provide him an opportunity to verify and sign the transcript, however he never argues that any part of the transcript is wrong. Husband s claim were correct, his failure to Even if produce any evidence of emotional distress damages in response to Wal-Mart s motion for regardless summary of the judgment precludes admissibility of him the from prevailing transcript. Thruston, 218 Ariz. at 115, ¶ 12, 180 P.3d at 980. See Further, Wal-Mart presented evidence that the court reporter who took the deposition gave Husband an opportunity to review and correct it, and that Husband declined to do so. We find no error in Wal- Mart s use of Husband s deposition transcript. ¶14 For the first time on appeal, Husband claims that the amended complaint he sought leave to file creates a genuine issue of material fact. Ordinarily, arguments not raised before the superior court are waived and we do not address them on the 9 merits. County of Cochise v. Faria, 221 Ariz. 619, 624, ¶ 18, 212 P.3d 957, 962 (App. 2009) (citation omitted). Even if we were to address Husband s contention on the merits, he would lose because an unverified pleading is not sufficient to oppose summary judgment. Ariz. R. Civ. P. 56(e). Like the response to the motion for summary judgment, the motion to amend included no evidence of emotional distress damages. Therefore, we affirm the superior court s entry of summary judgment. The Superior Court Did Not Err by Denying Husband s II. Motions for Reconsideration and Leave to Amend ¶15 Husband seems to argue that the superior court erred by denying the motion to amend he filed after briefing on WalMart s summary judgment was complete. We disagree. The superior court properly denied leave to amend because Husband s amendment would have been futile in light Husband had no evidence of his damages. of the fact that See Walls v. Ariz. Dep t. of Pub. Safety, 170 Ariz. 591, 597, 826 P.2d 1217, 1223 (App. 1991) ( While it is true that leave to amend a pleading is usually defeated freely by a given, motion ... for if the summary amended pleading judgment, [the could be court's] grant[ing] [of] leave to amend would be a futile gesture. ) (quoting Eria v. Tex. E. Transmission Corp., 377 F.Supp. 344, 345 (E.D.N.Y. 1974)). We affirm the superior court s denial of Husband s motion for leave to amend. 10 ¶16 Husband also argues that the superior court erred by not granting him a hearing on his motion for reconsideration of the summary judgment against him. The superior court may rule on motions for reconsideration without oral argument. Civ. P. 7.1(e). Ariz. R. Additionally, the superior court ordered all parties to appear ready to present argument on all outstanding motions at 8:30 a.m. the morning of the trial. Husband failed to appear and forfeited his opportunity for a hearing. court denied his motion the same day. The We affirm the superior court s denial of Husband s motion for reconsideration. The Superior Court Correctly Found That Wife s Motion III. to Change Judge for Cause Was Untimely ¶17 The superior court correctly denied Wife s untimely motion to change judge for cause. A motion to change judge for cause must be filed within twenty days of the time the party discovers the factual basis for accusing the judge of bias. Ariz. R. Civ. P. 42(f)(2)(C). change of judge for cause Failure to timely apply for a constitutes waiver of the right. Fendler v. Phoenix Newspapers, Inc., 130 Ariz. 475, 481, 636 P.2d 1257, 1263 (App. 1981). cause on October 14. the alleged proceeding The factual basis for her application is impropriety which September 10. her Wife applied to change judge for in the affidavit conduct admits of she the August discovered 5 on The superior court correctly found that Wife 11 filed her application more than twenty days after learning of the alleged bias. Wife waived the issue by failing to timely file her application. Ariz. R. Civ. P. 42(f)(2)(C); Fendler, 130 Ariz. at 481, 636 P.2d at 1263. IV. The Superior Court Properly Denied Wife s Motion for Sanctions ¶18 Wife argues that the superior court s order denying her motion for sanctions is erroneous because it is based on inadmissible hearsay. Specifically, Wife argues that the affidavit of MoniQue Simpson, which was attached to the WalMart s response, improperly superior is inadmissible hearsay Because record executed. court s action the without the because unsigned was support would it the affidavit, we affirm the superior court s decision. ¶19 We sanctions review for an the abuse denial of of a motion discretion. for Jimenez disclosure v. Wal-Mart Stores, Inc., 206 Ariz. 424, 426, ¶ 5, 79 P.3d 673, 675 (App. 2003). The superior court does not abuse its discretion when its ruling is consistent with the law and supported by evidence. Scottsdale Princess P ship v. Maricopa County, 185 Ariz. 368, 379, 916 P.2d 1084, 1095 (App. 1995) (citation omitted). superior disclosure court has sanctions [sanctions] unjust. broad when discretion The to deny an award of circumstances make an award of Ariz. R. Civ. P. 37(a)(4)(A). 12 ¶20 Wife s motion for disclosure sanctions was based on Wal-Mart s failure to include in a written disclosure statement prior to compulsory arbitration the fact that the bicycle rack Wife fell over moves even when the wheels are locked. Wife s evidence included a statement prepared by Charles Houston, WalMart s lead defense attorney, in response to a bar complaint Wife filed. The statement admitted that the failure to disclose was improper, asserted that it was completely inadvertent, and argued that Wife suffered no prejudice because the fact had been discussed in a deposition of a Wal-Mart retail associate prior to the arbitration. The deposition transcript showing that Wife was aware of the condition prior to the arbitration is attached to Wife s motion. MoniQue Simpson s unsigned statement simply states that Plaintiffs attended a physical inspection of the bike rack which Wife tripped over, asserts that Plaintiffs had opportunities to ask questions of Wal-Mart associates, and states that a Wal-Mart associate informed plaintiffs that the bike rack will slide even when the wheels are locked. ¶21 We find no error. The deposition transcript reveals that Wife had the undisclosed information. The superior court was within its discretion to determine that revelation of the information in deposition despite defense counsel s failure to include it in a subsequent or earlier written disclosure prior to arbitration were circumstances 13 mak[ing] an award of [sanctions] unjust. Ariz. R. Civ. P. 37(a)(4)(A); see also Bryan v. Riddel, 178 Ariz. 472, 476-77, 875 P.2d 131, 135-36 (1994) (holding sanctions for failure to disclose were inappropriate when deposition testimony had already revealed the undisclosed information). ¶22 Wife executed as (requiring it is correct is not affiant s that the affidavit signed, see Ariz. signature on R. affidavit), is improperly Civ. P. 80(i) however, the abundance of other evidence in the record supports the superior court s decision. Because the superior court s act of discretion was supported by the evidence, we affirm the superior court s denial of disclosure sanctions. See Scottsdale Princess P ship, 185 Ariz. at 379, 916 P.2d at 1095. V. The Superior Court Did Not Engage in Improper Ex Parte Communications ¶23 Husband and Wife both argue that the judgment of the superior court should be reversed because its completion of the August 5 hearing after they stopped impermissible ex parte communication. parties to halt court proceedings participating We disagree. by willfully is an Allowing absenting themselves would cripple judicial administration, and our rules do not require proceedings to terminate when one party stops participating. 14 ¶24 The purpose of our prohibition on ex parte communications is that the judge must provide every party a chance to be heard and avoid an appearance of partiality. San Carlos Apache Tribe v. Bolton ex. rel. County of Maricopa, 194 Ariz. 68, 72, ¶ 8, 977 P.2d 790, 794 (1999) (citations omitted). Husband and Wife each were heard prior to the disconnection, and, assuming that Wal-Mart was correct when it stated that it had attempted to call them, they had had the opportunity to be heard further if they had picked up the telephone when defense counsel made any reconnect them. of her four or five separate attempts to Even if the plaintiffs had not received a call from Wal-Mart s counsel, they could have called the court on their own. Additionally, they could have moved for reconsideration or rehearing on the order the superior court entered after they disconnected. Therefore, we hold that continuing the hearing in the absence of the plaintiffs did not violate the prohibition on ex parte communications. VI. The Superior Court Properly Dismissed Wife s Claim for Failure to Prosecute ¶25 alleged Implicit in misconduct of Wife s the participating in the trial. arguments superior is court a notion excused that her the from The superior court may dismiss a complaint with prejudice if a party fails to appear for the scheduled trial. Ariz. R. Civ. P. 41(b); Bloch v. Bentfield, 1 15 Ariz. App. 412, 417, 403 P.3d 559, 564 (1965). Alleged erroneous rulings by the superior court do not relieve a party of its duty to prosecute the case to a final judgment. See Yaeger v. Vance, 20 Ariz. App. 399, 401, 513 P.2d 688, 690 (1973) (declining to consider propriety of non-final order when superior court subsequently dismissed the case for failure to prosecute). Wife s allegations that the superior court acted improperly did not relieve her of her duty to prosecute the case to a final judgment. Therefore, we affirm the superior court s order dismissing Wife s claims with prejudice for failure to prosecute. CONCLUSION ¶26 For the foregoing reasons, we affirm the superior court s judgment dismissing the complaint with prejudice. Wal- Mart is entitled to costs pursuant to Arizona Revised Statutes 16 section 12-342 (2003) upon compliance with Arizona Rule of Civil Appellate Procedure 21(a). 4 /s/ DONN KESSLER, Judge CONCURRING: /s/ PATRICK IRVINE, Presiding Judge /s/ MICHAEL J. BROWN, Judge 4 Wal-Mart also argues that the superior court s award of attorneys fees is correct, and a small part of Wife s reply brief suggests that attorney s fees were improper. Because attorneys fees were not raised in the opening brief, the issue is waived and we will not consider it. See ARCAP 13(a)(6); Nelson v. Rice, 198 Ariz. 563, 567 n. 3, ¶ 11, 12 P.3d 238, 242 n. 3 (App. 2000) (citations omitted). 17

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