Estate of Lewis (CA2 3/29/12)

As we’ve shown before, some cases aren’t content to reach the right appellate result; they try to ensure the “right” trial-court result, too. Others tackle head-on the easy issues and sidestep the harder ones. This one does both.

Simon Lewis objected to the informal probate of Frances Lewis’ estate and sued its executor, Mark Lewis. The court ordered Simon, who lives out of state, to appear personally for a pretrial conference. Never he nor his counsel did, though, so the court called counsel, who said he was ready to proceed telephonically and didn’t know why Simon wasn’t there. He also gave an excuse about why he hadn’t filed a response to Mark’s counterclaim, which was due before the pretrial conference. So the court struck Simon’s pleadings and gave Mark relief on the counterclaim. Counsel then filed an motion for reconsideration, admitting that he wasn’t ready after all because of some disruptions in his practice and that Simon was indigent and couldn’t come. Then Simon himself filed something saying that counsel hadn’t told him to come. The court denied these, whereupon counsel withdrew and Simon appealed pro se.

Mark argued that as to “certain aspects” of the matter there was no final judgment. “Given the overlapping subject matter of the original probate proceeding and the claims and counterclaims presented, as well as the consolidation of all proceedings below, we conclude we have jurisdiction to review the entirety of the court’s  . . .  order.” So, you’re clear on why the Court of Appeals has jurisdiction, yes? Maybe so, but when something like this looks like its being swept under the rug, it too often is.

Simon argued that the whole thing was his lawyer’s fault and that the court should have held a hearing to determine that before sanctioning him.

The Court of Appeals begins by discussing the background of Rule 16, for reasons not clear since nobody argued that the trial court didn’t have the power to order Simon’s personal appearance at a Rule 16 hearing. (Although in this regard the court notes in passing Armstrong v. Hooker, a much more important case that all litigation types should know.)

Severe sanctions such as dismissal are improper unless there is willfulness/bad faith/gross negligence.  The trial court has to hold a hearing on this. The pretrial conference didn’t count as that since Simon couldn’t explain himself and it didn’t determine where the fault lay.

That’s enough to decide the case but the court apparently fears that it isn’t enough to change the result, so it goes on to say that under these facts dismissal wouldn’t be appropriate even if Simon had known of the order to appear. Throughout, the court is careful to signal to the trial judge what his findings should be on the hearing he hasn’t held yet.

And the opinion also suggests that the trial court’s failure to award Mark his costs  — the opinion does not suggest that he asked for them – is another reason why the order in his favor should be set aside. If noncompliance is not “substantially justified,” according to a 1984 Bar committee note, the judge should award fees; so, you see, failure to award fees doesn’t mean that the judge was trying to give Simon a break, it means that he either thought Simon justified or wasn’t thinking. (This smells so strongly of midnight oil that we wonder whether it was non-lawyer Simons’ idea or the court’s concoction.)

As to giving Mark judgment on his counterclaim, default judgment is another thing about which, when there’s an issue, you need a hearing to see whether the lawyer or the client was the culprit. You also need a hearing for default after an appearance, which Simon had done through counsel. And you need a hearing on damages. The court makes this all sound like a slam dunk by ignoring the fact that the trial court referred to it not as a default but as a waiver. Is there a difference? That’s the question, the answer to which the court assumes rather than explains. (It may be, though, that Mark argued it that way.)

Lastly, Mark argued that there were other reasons, not cited by the trial court, justifying sanctions. The opinion doesn’t say whether he argued those below and lost or didn’t argue them there at all. Either way, he loses them on appeal. But instead of saying that the court explains factually why they shouldn’t result in severe sanctions.

The court concludes by telling Simon what to do at the hearing: appear, present evidence, and call your former lawyer to testify.

(The opinion goes out of its way to identify that lawyer repeatedly. An earlier age would have avoided this, on the theory that he doesn’t deserve possibly-unjustified blame or what is in any event pointless public humiliation. Why do the courts think their modern lack of decorum an improvement?)

(link to opinion)