This is a case about discovery sanctions. In Seidman, 563 Ariz. Adv. Rep. 17, Division One held that the trial court can’t strike a pleading and enter default as a sanction without holding an evidentiary hearing to determine whether the failure to make discovery was the client’s fault or the lawyer’s. In this case, Division Two finds a way around that.

Jada bought a used car from Hammoudeh; the story seems to be basically that he sold her a clunker and sued her when she wouldn’t pay. She counterclaimed. He tried to stonewall discovery and, although sanctioned once, continued to do so.  At one point he personally attested under oath that his responses were true and correct to the best of his knowledge and belief; the opinion doesn’t say whether this was routine boilerplate on a discovery form or some sort of separate affidavit (in either event, it may mean that his lawyer was beginning to catch on and protect himself). When his lawyer withdrew, Hammoudeh did nothing to supplement earlier discovery. He did not claim, says the opinion, that his lawyer had prevented him from making proper discovery.

Jada moved to strike the Complaint. Hammoudeh didn’t file a response but showed up at oral argument to request an evidentiary hearing. The court denied this and held a default hearing, apparently on Jada’s counterclaim. It lasted a couple of days; Hammoudeh attended the first day but not the second. He made no offer of proof.

On this record the court observed that it was “apparent from the record, and undisputed, that Hammoudeh was personally aware of, and responsible for, the inadequate discovery responses.” Hammoudeh’s personal fault was “readily apparent from the record,” the trial court made a specific finding of it, and so the court could not “say the court abused its discretion in concluding an evidentiary hearing was not necessary to determine fault.”

A commonsense result:  if the fault is already on the record, you don’t need to hold a special hearing to put it there. Properly used, this exception will eat the Seidman rule.

This special action arises out of a criminal case but says some things about the inherent power of the court to impose sanctions that might be mentioned in other contexts.

Kaufman is a lawyer. When the County Attorney’s office allegedly violated the terms of his clients’ plea agreement, he moved for an OSC against it. The trial court turned it down (as did the Court of Appeals on special action) and ordered Kaufman to pay the County Attorney’s legal fees defending it, finding it frivolous, unsubstantiated, and inappropriate. Kaufman also took special action from that, which the Court of Appeals accepted and reversed.

No criminal statute or rule allows a sanction of attorney’s fees for a frivolous pleading. The County Attorney therefore argued that the court had the inherent power to do it. A court clearly has inherent power to sanction; the question is whether its inherent power includes attorney’s fees.

“In Arizona we follow the general American rule that attorney fees are not recoverable unless they are expressly provided for by either statute or contract.” (The opinion quotes this verbatim, from an Arizona Supreme Court case. Why? The sentence is clumsy and ugly; prose style was not the sort of style Justice Gordon aspired to. Why not say it better?) “We conclude that, generally, an Arizona trial court may not require one party to pay another’s attorney fees in the absence of statutory or contractual authorization to do so” (this a quotation from this opinion). Except that in civil cases there are various situations in which the trial court can do precisely that (the opinion acknowledges this and cites some appropriate cases). But you can’t do it in criminal cases.

The thing to remember is that to get attorney-fee sanctions in a civil case you do need some authority for it, whether statute, rule, or case law allowing it in that situation. That you need authority for taking a legal position should not surprise, though some lawyers spend a career affecting offence at the thought.

This little case shows nice thinking by the defendants in giving the trial judge a tool to deal with a situation. They’re happier to get those than they’re ever able to tell you.

Tripati, an inmate, filed several civil actions (he apparently doesn’t flinch from being called a vexatious litigant). He avoided the filing fee by claiming indigence. After the actions were consolidated, the defendants challenged his indigence claim. He is one of those inmates who has a following and there have been, the opinion tells us, books and websites about him, advertisements, etc. Apparently, the defendants showed all this to the court and argued that it was Tripati’s burden to show that, despite all these other things being paid for, he didn’t have or couldn’t get the money to pay filing fees. The trial court agreed and ordered him to pay the fees. He didn’t; the court dismissed his cases. He appealed; the Court of Appeals affirmed.

Tripati cited a criminal case holding that the court can’t consider donations by supporters in determining whether an accused is entitled to a free transcript on appeal. The opinion distinguished the case because there is a constitutional right to pursue a criminal appeal. The court pointed out that the statute(A.R.S. 12-302)  does not limit the kind of evidence that can be offered about a claim of indigence.

The court ruled that the burden of proof was indeed on Tripati; the statute  doesn’t actually say so but that’s what it seems to mean. But just in case, the court also ruled that Tripati would lose even if the defendants had the burden. His application for fee deferral didn’t mention that he was married and that his wife, family, and friends finance whatever he needs.

The court declined to address one of Tripati’s issues on appeal: ““Judge O’Neil by his Order has Energized Tripati’s Supporters to Cripple Arizona’s Economy Due to Corrupt Judges.” This was not, said the court, a “legally cognizable assertion of error.” Those who have dealt with them will recognize that it is, though, an absolutely classic pro se argument.