                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


         JOHN HASTINGS; JILL HASTINGS, Plaintiffs/Appellants,

                                         v.

      JEFFREY DUMAS; CHRISTINA DUMAS, Defendants/Appellees.

                              No. 1 CA-CV 15-0608
                                FILED 2-16-2017


            Appeal from the Superior Court in Maricopa County
                           No. CV2013-013671
                The Honorable Arthur T. Anderson, Judge

                                   AFFIRMED


                                    COUNSEL

John Hastings, Jill Hastings, Las Vegas, Nevada
Plaintiffs/Appellants

Sandler Law Group, LLC, Phoenix
By Bryan N. Sandler
Counsel for Defendants/Appellees
                          HASTINGS v. DUMAS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1            John and Jill Hastings1 appeal the superior court’s order
granting Jeffrey and Christina Dumas’ motion to dismiss. For the following
reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            In 2010, John Hastings (“Plaintiff”), a former tenant of Jeffrey
and Christina Dumas (collectively, “Defendants”), filed a complaint in the
West Mesa Justice Court,2 alleging Defendants violated various sections of
the Arizona Residential Landlord and Tenant Act (“Landlord and Tenant
Act”) by not returning Plaintiff’s rental security deposit and failing to
adequately maintain the rental space.3              Defendants then filed
counterclaims, alleging Plaintiff damaged the rental space and libeled
Defendant Jeffrey Dumas by making defamatory statements about him on
the Internet.

¶3          In May 2011, after a bench trial, the justice court granted
judgment to Plaintiff in the amount of $600 and to Defendants in the
amount of $2000.




1     Jill Hastings’ name first began to appear on pleadings in 2012. The
record is not clear, however, as to why she is a named party in the lawsuit.

2      The matter was later transferred to the North Mesa Justice Court due
to a conflict.

3     Plaintiff also alleged negligence, breach of contract, invasion of
privacy, harassment, intentional infliction of emotional distress, malicious
prosecution, retaliation, slander, libel, and multiple other violations under
the Landlord and Tenant Act. Further, he claimed Defendants had
“unjustly enriched themselves” by over-charging him.


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                           HASTINGS v. DUMAS
                            Decision of the Court

¶4           Plaintiff filed a notice of appeal to the superior court. But
because the audio recording from the justice court could not be located, that
judgment was vacated and the matter was set for a new trial.

¶5            Plaintiff then filed an amended complaint and Defendants
refiled their counterclaims. Because the counterclaims alleged damages
that exceeded the jurisdiction of the justice court, the matter was transferred
to the superior court in October 2013.

¶6           The parties subsequently engaged in a contentious discovery
dispute. In August 2014, Defendants moved to compel discovery
responses. See Ariz. R. Civ. P. 37(a).

¶7            At a pretrial conference in September 2014, both parties,
through counsel, informed the judge that they had reached a resolution
regarding the outstanding discovery issues. Plaintiff requested and was
given leave to file an amended complaint, and agreed to do so by October
24, 2014.

¶8             In late October 2014, and again in November 2014, Plaintiff
moved for extensions of time to file the amended complaint.4 After a
hearing in December 2014, the court denied Plaintiff’s requests. Defendants
then made an oral motion to dismiss with prejudice, which the court
granted, finding that Plaintiff had deliberately failed or refused to
participate in discovery on a good-faith basis, and had violated Arizona
Rule of Civil Procedure 11. In making its ruling, the court stated, “there is
no indication that [Plaintiff’s] counsel has not acted ethically and diligently
in trying to respond to this court’s orders in his representations to this court.
Default [sic] here lies at the feet of Mr. Hastings.” The court later entered
judgment, dismissing Plaintiff’s complaint with prejudice and awarding
attorneys’ fees and taxable costs to Defendants.

¶9            Plaintiff filed a timely notice of appeal, and we have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and




4     In his first request for an extension, Plaintiff’s counsel stated he was
having “scheduling difficulties” with his clients. In the second request,
counsel stated he had been unable to file the amended complaint because
he had “been bedridden with [the] flu.”




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                           HASTINGS v. DUMAS
                            Decision of the Court

Arizona Revised Statutes (“A.R.S.”) sections 12-2101(A)(1) (2016)5 and 12-
120.21(A)(1) (2016).

                                 ANALYSIS

¶10         Plaintiff argues the trial court abused its discretion in granting
Defendant’s motion to dismiss.6

¶11            “On appeal from a dismissal based upon discovery violations,
we will affirm a trial court’s order unless the record reflects a clear abuse of
discretion.” Rivers v. Solley, 217 Ariz. 528, 530, ¶ 11, 177 P.3d 270, 272 (App.
2008). Dismissal generally requires an evidentiary hearing and “is
warranted only when the court makes an express finding that a party, as
opposed to his counsel, has obstructed discovery.” Wayne Cook Enters., Inc.
v. Fain Props. Ltd. P’ship, 196 Ariz. 146, 149, ¶ 12, 993 P.2d 1110, 1113 (App.
1999) (internal citations omitted). Although the court must first consider
lesser sanctions, see id., dismissal may be warranted where a party has
shown a “willful and bad faith” failure to comply with discovery
requirements. See Poleo v. Grandview Equities, Ltd., 143 Ariz. 130, 133, 692
P.2d 309, 312 (App. 1984).

¶12            Here, the record supports the trial court’s findings that
Plaintiff violated the discovery rules, refused to cooperate with counsel,
and impeded the case from advancing. The record indicates Plaintiff filed
his initial complaint against Defendants in 2010. While the case was before
the justice courts, Plaintiff requested a change of judge on two separate
occasions; objected to the appointment of a pro tempore judge; moved for a
change of venue; filed multiple motions to continue; and, at one point,
requested that the matter be “placed on a total hold” for five months to
accommodate his school schedule.




5     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.

6      From what we can discern from his briefs, Plaintiff also contends his
counsel committed malpractice. However, “a party [in the civil context]
generally cannot obtain post-judgment relief because of the inexcusable
neglect of counsel.” Glaze v. Larsen, 207 Ariz. 26, 31, ¶ 20, 83 P.3d 26, 31
(2004). Plaintiff’s remedy, to the extent he is entitled to one, is through a
malpractice action. Accordingly, we do not address this argument.



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                            HASTINGS v. DUMAS
                             Decision of the Court

¶13            In the superior court, Plaintiff continued to stall the progress
of litigation and disregarded discovery obligations. He refused to
cooperate with opposing counsel in the scheduling of his deposition and
provided inadequate responses to discovery. Even after stipulating that he
would answer all outstanding discovery, Plaintiff hindered his own
attorney’s ability to produce responses to discovery by providing “scant”
and “insufficient” information. Plaintiff’s conduct was therefore not the
result of a lack of awareness of his obligations as a litigant,7 but rather a
willful disregard of the deadlines imposed by the court and a bad faith
failure to comply with discovery requirements.

¶14              Additionally, the trial court considered lesser sanctions before
dismissing the case. The court initially stated it would review Plaintiff’s
discovery responses and deem admitted any requests for admission to
which Plaintiff had supplied inadequate responses or baseless objections.
However, after consulting with both counsel and “discuss[ing]
procedurally some of the things that [] occurred,” the court determined
dismissal with prejudice was warranted. See Ariz. R. Civ. P. 37(b)(2)(A)(v)
(“If a party . . . fails to obey an order to provide or permit discovery, . . . the
court where the action is pending may enter further just orders,” which may
include “dismissing the action or proceeding in whole or in part.”).

¶15          Because the record supports the trial court’s findings and
conclusions of law, we find no abuse of discretion.

                                CONCLUSION

¶16           The superior court’s order is affirmed. We deny Plaintiff’s
request for attorneys’ fees and costs, but award Defendants their taxable
costs on appeal, subject to compliance with ARCAP 21.




                            AMY M. WOOD • Clerk of the Court
                            FILED: AA

7      The court had previously warned both parties that “[a] filing without
a sufficient good faith belief in its legal or factual basis puts the signor at
risk for sanctions.” The court also informed Plaintiff that, when appearing
in propia persona, he would be held to the same standards as a lawyer.


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