Estate of Lewis v. Lewis, 229 Ariz. 316

This is a probate action where Simon P. Lewis objected to informal probate of Frances B. Lewis's will and sued Mark A. Lewis personally and as trustee; Mark answered through counsel for the estate and trust.
The trial court sanctioned Simon by dismissing his complaint, entering a default judgment, and overruling his objection to the informal probate after finding nonappearance at a pretrial conference and failure to timely reply to counterclaims.
Before the September 2010 pretrial, the court had ordered Simon to appear in person, with a minute entry stating that appearance was required, though the entry was unclear and allegedly not properly disseminated.
At the September pretrial, Mark and Lane appeared in person while Simon did not; the court discussed sanctions and vacated the trial date, then entered relief for counterclaims and set a formal order after considering Gorman’s unpreparedness; Simon sought reconsideration.
Gorman later withdrew as counsel; Simon appealed alleging notice failures, misrepresentations by counsel, ex parte communications, due process concerns, and improper sanctions; the appellate court found an abuse of discretion and remanded for proper proceedings.
The court ultimately held that the sanctions for nonappearance were not properly justified on the record and required an evidentiary hearing with consideration of lesser sanctions on remand.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sanctions for nonappearance were proper.	Lewis argues the court abused discretion by dismissing and entering default for nonappearance without clear willfulness or notice.	Lewis, through Mark, asserts Rule 16(f) sanctions support dismissal for nonappearance when properly ordered.	Abuse of discretion; sanctions reversed and remanded for proper evidentiary proceedings.
Whether due process required an evidentiary hearing before sanctions.	Simon contends an evidentiary hearing was required to determine willfulness and fault.	Defendant argues the pretrial hearing supplied evidence to support sanctions.	Fundamental fairness requires an evidentiary hearing; remand for proper hearing.
Whether the untimely reply to counterclaims warranted default/dismissal.	Simon asserts his attorney’s neglect should not unfairly fall on him; default based on untimely reply was improper.	Plaintiff’s nonresponse justified sanctions under Rule 16/37; no proper default notice under Rule 55(a).	Default judgment based on untimely reply was error; remand to determine appropriate sanctions.
Whether the minute-entry ambiguity and notice failures affected sanctions.	Ambiguity in the order to appear and lack of actual notice undermines the sanctions.	Court reasonably relied on the order and appearances; sanctions proper.	Ambiguities and lack of notice undermine sanctions; require reconsideration on remand.

Camelback Partners v. Weber, 9 Ariz.App. 452 (1969) (sanctions should be used cautiously; preference for merits-based disposition)
Robinson v. Higuera, 157 Ariz. 622 (App. 1988) (due process requires hearing before dismissal/default where culpability is not clear)
Birds Int’l Corp. v. Ariz. Maint. Co., 135 Ariz. 545 (App. 1983) (emphasizes need for hearing and consideration of lesser sanctions; willfulness/bad faith)
Zakroff v. May, 8 Ariz.App. 101 (1968) (considers use of less drastic sanctions and aggravating circumstances)
Jancauskas v. Tow Motor Corp., 261 N.E.2d 753 (Ill.App.1970) (illustrates requirement of wilfulness or contumacious disregard for drastic sanctions)
AG Rancho Equip. Co. v. Massey-Ferguson, Inc., 123 Ariz. 122 (1979) (longstanding preference for merits-based disposition; caution with drastic sanctions)
Robinson v. Higuera, 157 Ariz. 622 (App. 1988) (due process and necessity of hearing before severe sanctions)