Simpson v. Bell Plaza
1 CA-CV 16-0077
| Ariz. Ct. App. | Mar 2, 2017Background
- Simpson leased 900 sq. ft. in a Phoenix shopping center in Aug. 2014 to operate an Internet/Wi‑Fi business.
- Bell Plaza notified Simpson of nonmonetary lease defaults in Nov. 2014; by Jan. 2015 Bell Plaza locked her out and placed a lien on personal property.
- Simpson sued Bell Plaza (breach of contract and conversion) in Apr. 2015; Bell Plaza counterclaimed for breach of lease.
- Simpson repeatedly missed procedural deadlines: failed timely to answer the counterclaim (default entered), delayed discovery responses, did not provide Rule 26.1 disclosures, and failed to appear for deposition.
- After warnings from the superior court, Bell Plaza’s motions to compel and for sanctions were summarily granted; Simpson’s claims were dismissed with prejudice, default judgment entered on the counterclaim, and attorneys’ fees awarded.
- The appellate court affirmed, finding no abuse of discretion in dismissing and awarding fees given Simpson’s repeated failures and prior warnings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a failure to respond to a dispositive motion alone can justify granting it | Simpson: Court cannot grant a dispositive motion solely for failure to respond (citing Schwab) | Bell Plaza: Schwab is inapplicable because it did not move for summary judgment; court may grant where no timely response is filed | Court: A court may summarily grant where a party fails to timely respond and was warned; affirmed |
| Whether failure to appear at deposition alone can justify dismissal for failure to prosecute | Simpson: Dismissal here was based only on missing the deposition, which is insufficient | Bell Plaza: Dismissal was based on a series of failures (answering counterclaim, disclosures, discovery responses, deposition, and failure to respond to motions) | Court: Dismissal was supported by cumulative failures and prior warning; no abuse of discretion |
| Whether an order compelling appearance is required before imposing sanctions for not appearing at deposition | Simpson: Court erred by imposing sanctions absent an order compelling deposition | Bell Plaza: Rule 37 permits sanctions for failure to appear after proper notice without a separate order compelling appearance | Court: Rule 37(f)(1)(A)(i) allows sanctions after proper notice; no order was required |
Key Cases Cited
- Schwab v. Ames Constr., 207 Ariz. 56 (App. 2004) (discusses limits on granting dispositive motions based solely on failure to respond)
- Strategic Dev. & Constr. Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60 (App. 2010) (approving granting a motion where a party failed to timely respond)
- Estate of Lewis v. Lewis, 229 Ariz. 316 (App. 2012) (standard for appellate review of dismissal for failure to prosecute)
- McHazlett v. Otis Eng’g Corp., 133 Ariz. 530 (1982) (an unserved defendant is not a party for purposes of final judgment)