NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

GAICA FLOARE, Plaintiff/Appellee,

v.

PETRE DAMIAN, Defendant/Appellant.

No. 1 CA-CV 13-0349

Appeal from the Superior Court in Maricopa County

No. CV2012-005331

The Honorable J. Richard Gama, Judge

REMANDED 

COUNSEL

Bellah Perez, PLLC, Glendale

By Sheila E. Harmer

Counsel for Plaintiff/Appellee

Florin V. Ivan PC, Glendale

By Florin V. Ivan

Counsel for Defendant/Appellant
FLOARE v. DAMIAN

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Margaret H. Downie joined.

B R O W N, Judge:

¶1 Petre Damian appeals the superior court’s order denying his 

motion to set aside a default judgment entered against him as a result of 

disclosure and discovery violations. Because the record is not clear as to 

whether fault for failure to comply with a discovery order was with 

Damian or his counsel, we remand to the superior court for further 

proceedings. 

BACKGROUND

¶2 On March 26, 2012, Gaica Floare filed a quiet title complaint 

alleging she agreed to pay Damian, her former brother-in-law, $75,000 to 

purchase a property with the understanding that she would own the 

property. Floare alleged further that Damian ignored their agreement by 

taking title to the property in his name. Damian filed an answer on April 

27. On May 4, Floare served Damian with a request for production of 

documents,1 uniform contract interrogatories, non-uniform 

interrogatories, requests for admissions, and a request for entry upon 

land. 

¶3 On June 8, Damian’s counsel, Art Reategui, requested an 

extension to June 29 to respond to the discovery requests, which Floare’s 

attorney agreed to on the condition that Reategui provide Damian’s 

disclosure statement at that time as well. On June 29, at Floare’s request, 

counsel for both parties and Damian met to inspect the property, and at

that time, Reategui informed Floare that he would need more time to 

provide the discovery responses. On July 2, Reategui e-mailed responses 

to the requests for admission, non-uniform interrogatories, and request for 

 1 Floare requested copies of the real estate contract for the purchase 

of the property at issue and a copy of Damian’s bank statement showing 

the deposit of $75,000 made to his account. 
FLOARE v. DAMIAN

Decision of the Court

3

production. Reategui also indicated that the bank statement would be 

forthcoming. On July 31, Floare informed Reategui by letter that despite 

Reategui’s partial compliance with Floare’s request for production, she 

had never received Damian’s disclosure statement, answers to the 

uniform contract interrogatories, or the bank statement information. 

¶4 On August 13, Floare filed a motion for an order compelling 

the missing discovery responses and disclosure statement.2 Floare 

acknowledged recieving Damian’s July 2 discovery responses, but she 

indicated that Damian had failed to provide the information outlined in 

her July 31 letter. Damian did not respond to Floare’s motion to compel 

discovery. The superior court granted the motion on September 19 and

ordered Damian to provide the missing discovery requests and disclosure 

statement no later than October 12. The court also awarded attorneys’ 

fees of $672 to Floare.

¶5 After Damian failed to comply with the court’s order, Floare 

filed a “Motion For Entry Of Default Judgment Or For Alternative 

Sanctions Pursuant to Rule 37(B).”3 Floare asked the court to strike 

Damian’s answer, but noted that “a default judgment should only be 

entered if the non-compliance was due to the willfulness or bad faith of 

the party and not the party’s attorney[,]” and that “[a]n evidentiary 

hearing is required to determine whether the failure to comply was the 

result of the party’s own willfulness or bad faith.” Floare also explained 

that “[a]t the hearing, the Court must make express findings as to (1) 

whether the fault for the violation lies with the party or counsel; (2) 

whether the violation was committed willfully or in bad faith; and (3) 

 2 We note that nothing in the record indicates that Floare’s counsel 

complied with the certification requirement of Arizona Rule of Civil 

Procedure 37(a)(2)(C), which states that “[n]o motion brought under this 

Rule 37 will be considered or scheduled unless a separate statement of 

moving counsel is attached thereto certifying that, after personal 

consultation and good faith efforts to do so, counsel have been unable to 

satisfactorily resolve the matter.” 

3 Rule 37(b) sets forth several non-exclusive orders a court may issue 

in response to a party’s failure to comply with an order to provide 

discovery, ranging from designating certain facts as being established or 

placing limitations on what evidence and claims or defenses the noncomplying party may introduce to the most severe: “rendering a judgment 

by default against the disobedient party[.]” Ariz. R. Civ. P. 37(b)(2)(A-C).
FLOARE v. DAMIAN

Decision of the Court

4

whether the egregiousness of the violation warrants the sanction of a 

default judgment.” 

¶6 Damian did not respond to Floare’s motion. On December 

6, the court ordered the answer stricken and entered default judgment 

against Damian. In doing so, the court reasoned that because Damian 

failed to respond to the motion for default or provide the outstanding 

discovery, his actions “represent[ed] extreme circumstances justifying 

dismissal of the formal Answer.” The court also found that Damian had 

“obstructed the discovery process and failed to participate in this action.”

The court then awarded Floare her attorneys’ fees and costs and entered a 

signed judgment of quiet title on January 29, 2013. 

¶7 Attorney Florin Ivan filed a notice of appearance as “cocounsel” for Damian on February 22. On March 4, he filed a motion to 

vacate the default judgment pursuant to Rules 55(c) and 60(c).4 

Specifically, Ivan argued the default judgment should be set aside because 

striking Damian’s answer as a sanction without first conducting a hearing 

“did not conform with due process.” Additionally, Damian avowed that

(1) he primarily speaks Romanian and that he does not speak or 

understand English except for a few common words; (2) he was not told 

he had to provide information to the court or Floare; and (3) he was 

“shocked” when he found out he lost his property without a court 

hearing. 

¶8 The superior court denied the motion to vacate, finding 

Damian “failed to provide a good cause explanation for his prior failure to 

participate in the discovery of this action; failed to demonstrate a 

meritorious defense; and [had] failed to demonstrate a viable basis for his 

prior non-compliance with [the order to compel].” Damian timely 

appealed from the court’s denial of his motion to vacate. 

DISCUSSION

¶9 We review orders imposing sanctions for disclosure and 

discovery violations for an abuse of discretion. Montgomery Ward & Co., 

Inc. v. Superior Court In & For Cnty. of Maricopa, 176 Ariz. 619, 621, 863 P.2d 

911, 913 (App. 1993).

 4 On the same day, Ivan served Floare with the disclosure statement 

and responses to the outstanding discovery requests. 
FLOARE v. DAMIAN

Decision of the Court

5

¶10 As a threshold matter, Floare argues we should affirm the 

superior court’s ruling because Damian’s motion to vacate was untimely. 

Pursuant to Rule 55(c), an entry of default may be vacated “for good cause 

shown” or in accordance with Rule 60(c). Ariz. R. Civ. P. 55(c). Because 

Arizona law is well-settled that a party may not directly appeal from a 

default judgment; the proper procedure for initiating a challenge to such a 

judgment is by motion under Rule 55(c). Byrer v. A. B. Robbs Trust Co., 105 

Ariz. 457, 458, 466 P.2d 751, 752 (1970). Damian filed his Rule 55(c)

motion just over a month after entry of the judgment; therefore, the

motion was timely filed. 

¶11 Generally, a court has broad discretionary power to impose 

sanctions for noncompliance with court orders compelling discovery and 

disclosure. AG Rancho Equip. Co. v. Massey-Ferguson, Inc., 123 Ariz. 122, 

123, 598 P.2d 100, 101 (1979). And, we follow the general principle that 

neglect of an attorney is attributed to the client. Treadaway v. Meador, 103 

Ariz. 83, 84, 436 P.2d 902, 903 (1968). However, “[w]here the party is not 

guilty of misconduct in the discovery process he should not suffer default 

as a result of his counsel’s guilty conduct.” Robinson v. Higuera, 157 Ariz. 

622, 624, 760 P.2d 622, 624 (App. 1988). A court’s discretion may therefore 

be limited when a party’s “failure to comply . . . [is] due to inability, and 

not to willfulness, bad faith or any fault of petitioner[.]” Birds Int’l Corp. v. 

Arizona Maint. Co., Inc., 135 Ariz. 545, 546, 662 P.2d 1052, 1053 (App. 1983)

(internal quotations omitted); see also Estate of Lewis v. Lewis, 229 Ariz. 316, 

325, ¶ 29, 275 P.3d 615, 624 (App. 2012). Further, based on due process 

considerations, the court’s discretionary power to enter a default as a 

sanction “is more limited than when it employs lesser sanctions.” Lenze v. 

Synthes, Ltd., 160 Ariz. 302, 305, 772 P.2d 1155, 1158 (App. 1989); 

Montgomery Ward, 176 Ariz. at 622, 863 P.2d at 914 (“A party’s right to due 

process limits a trial court’s authority to strike a pleading.”); see also UTotem Store v. Walker, 142 Ariz. 549, 553, 691 P.2d 315, 319 (App. 1984)

(“The law favors resolving a case on the merits rather than by default.”). 

Even so, the trial court’s exercise of discretion “within those limits is 

entitled to deference on appeal.” Lenze, 160 Ariz at 305, 772 P.2d at 1158. 

¶12 Arizona courts have consistently followed the principle that

prior to imposition of a sanction that results in dismissal of a case, a court 

should conduct a hearing to determine (1) whether fault for the violation 

lies with the client or counsel; (2) whether the violation was committed 

willfully or in bad faith; and (3) whether the nature of the violation 

warrants the ultimate sanction of dismissal or some lesser sanction. See 

e.g., Seidman v. Seidman, 222 Ariz. 408, 411, ¶ 20, 215 P.3d 382, 385 (App. 

2009); see also Estate of Lewis, 229 Ariz. at 324, ¶ 20, 275 P.3d at 623; 
FLOARE v. DAMIAN

Decision of the Court

6

Montgomery Ward, 176 Ariz. at 622, 863 P.2d at 914; Lenze, 160 Ariz. at 306, 

772 P.2d at 1159; Birds Int’l, 135 Ariz. at 547, 662 P.2d at 1054. 

¶13 “Although an evidentiary hearing may often be necessary to 

determine whether responsibility for obstructing discovery lies with the 

party or with his counsel, such a hearing is not required when the facts are 

apparent from the record.” Hammoudeh v. Jada, 222 Ariz. 570, 572, ¶ 7, 218 

P.3d 1027, 1029 (App. 2009). Thus, “[d]ue process does not require that a 

hearing be held in every case,” even where “sanctions of dismissal or 

entry of default judgment” are entered. Robinson, 157 Ariz. at 624, 760 

P.2d at 624; see also Marquez v. Ortega, 231 Ariz. 437, 444, ¶ 27, 296 P.3d 

100, 107 (App. 2013) (affirming denial of plaintiff’s motion to extend 

deadline for discovery without a hearing where record was clear that 

plaintiff’s attorneys were at fault and the sanction imposed was not 

tantamount to a dismissal).

¶14 The superior court’s findings here do not offer any 

indication whether Damian or his counsel was responsible for the 

discovery violations. Additionally, nothing in the record suggests why 

Reategui essentially disappeared from the litigation after Floare filed her 

motion to compel. As to Damian, the only information in the record 

relevant to his involvement in the discovery requests is attached to his 

motion to vacate, in which he avowed he was shocked when he found out 

that he was in jeopardy of losing his property and “was not told that [he] 

must provide some information to the Court or [to Floare].” Thus, the 

existing record does not support a finding that Damian was aware of the 

discovery issues, much less that he acted willfully or in bad faith to 

obstruct the process. We therefore conclude that the superior court erred 

in denying the motion to vacate without first conducting a hearing to 

determine responsibility for the disclosure and discovery violations. See 

Lenze, 160 Ariz. at 306, 772 P.2d at 1159 (holding that trial court should 

have held an evidentiary hearing prior to imposing default judgment as a 

sanction);5 cf. Hammoudeh, 222 Ariz. at 572, ¶¶ 7-8, 218 P.3d at 1029

 5 In Lenze, the trial court granted plaintiff’s motion to strike the 

defendant’s answer based on repeated failures to attend scheduled 

depositions. 160 Ariz. at 303-04, 772 P.2d at 1156-57. After default 

judgment was entered, new counsel unsuccessfully moved to set aside the 

default judgment. On appeal, we remanded for an evidentiary hearing 

because the record did not “reveal whether any facts were raised before 

the trial court to indicate whether the failure to comply with the discovery 
FLOARE v. DAMIAN

Decision of the Court

7

(holding that an evidentiary hearing is not necessary when there were 

numerous instances in the record demonstrating that the defendant 

“personally attempted to mislead [the plaintiff] and the court with his 

incomplete discovery responses.”). 

¶15 Floare requests an award of attorneys’ fees on appeal 

pursuant to Arizona Revised Statutes section 12-1103. Because we are 

remanding for further proceedings, the request is denied without 

prejudice. The superior court may consider awarding such fees pending 

the ultimate outcome of the litigation and determination of the successful 

party. 

CONCLUSION

¶16 Based on the foregoing, we conclude that the superior court 

erred in denying Damian’s motion to vacate without conducting a hearing 

to determine responsibility for failure to comply with the discovery order. 

We therefore remand for further proceedings. If the court finds that 

Damian had knowledge of the discovery order and that he willfully or in 

bad faith failed to comply, the default judgment shall remain in effect. See 

Lenze, 160 Ariz. at 306, 772 P.2d at 1159. Alternatively, if the court finds 

that Damian was not at fault, the default judgment shall be vacated and 

consideration of the quiet title dispute shall continue. Id. In such case, the 

court may impose other sanctions it deems appropriate under Rule 37. Id.

 

order was the fault of appellant’s former counsel as opposed to 

appellant.” Id. at 306, 772 P.2d at 1159.