Kaufman v. AZ Vet Board

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DAVID KAUFMAN, ) ) Plaintiff/Appellant, ) ) v. ) ) ARIZONA STATE VETERINARY MEDICAL ) EXAMINING BOARD, a Regulatory ) Board of the State of Arizona; ) and WILLIAM LANGHOFER, ) ) Defendants/Appellees. ) ) DIVISION ONE FILED: 04-20-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 09-0094 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court of Maricopa County Cause No. LC2008-000482-001 DT The Honorable Robert C. Houser, Judge AFFIRMED Blake D. Gunn Attorney for Appellant Beaugureau, Hancock, Stoll & Schwartz, P.C. By David L. Stoll and Terrance L. Sims and W. Reed Campbell Attorneys for Appellee Langhofer Terry Goddard, Attorney General By Keely Verstegen, Assistant Attorney General Attorneys for Appellee Board Mesa Phoenix Phoenix T H O M P S O N, Judge ¶1 Appellant David Kaufman (Kaufman) appeals from the superior court's order dismissing his civil complaint seeking review of The Arizona State Veterinary Medical Examining Board's (the Board) entry of a consent William Langhofer (Langhofer). decree against veterinarian For the following reasons, we affirm the decision of the superior court. ¶2 In arising out "Salty." 2007, of Kaufman filed Langhofer's a complaint treatment of his with the Board scarlet macaw Kaufman alleged that Langhofer failed to diagnose and treat a heart condition which led to Salty's death. The Board resolved the complaint by entering into a consent agreement with Langhofer, and finding that Langhofer failed to keep proper records. Langhofer was placed on probation for a year, was required to complete additional continuing education, and was required to pay a $250.00 civil penalty. Kaufman requested a rehearing of the Board's decision, but the Board determined that Kaufman lacked standing to request a rehearing. ¶3 Kaufman filed a complaint in superior court seeking review of the Board's decision. issued a minute entry order The superior court sua sponte stating that it would dismiss Kaufman's complaint with prejudice unless he could show that he was a named party to the Board's proceeding against Langhofer. 2 Kaufman, the Board, and Langhofer briefed the issue of Kaufman's standing to seek judicial review of the Board's decision. The Board and Langhofer moved to dismiss Kaufman's complaint. ¶4 that The trial court granted the motions to dismiss, ruling Kaufman Board. ¶5 was not a party to Kaufman timely appealed. the proceedings before the We have jurisdiction. The right to appeal from an administrative decision exists by statute and is limited to the terms of the statute. Guminski v. Ariz. State Vet. Med. Examining Bd., 201 Ariz. 180, 181, 182, ¶ 8, 33 P.3d 514, 516 (App. 2001). On review, the superior court is limited to addressing claims of parties who were parties of record in the proceedings below. Stat. (A.R.S.) § 12-908 (2007). Ariz. Rev. The statute provides: Parties In an action to review a final decision of an administrative agency, the agency and all persons, other than the plaintiff, who are parties of record in the proceedings shall be made defendants. Id. A.R.S. § 32-2234 (G) (2007) further provides that "any party aggrieved by a final order or decision of the [Arizona State Veterinary Medical Examining] board may appeal to the superior court." (Emphasis added.) ¶6 This court has previously held that the complainant is not a party to an administrative action. Twin Peaks Constr. Inc. of Nev. v. Weatherguard Metal Constr., Inc., 214 Ariz. 476, 478, ¶ 9, 154 P.3d 378, 380 (App. 2007). 3 In determining that Kaufman was not a party aggrieved by the Board's decision, the superior court ruled: Kaufman is not a party to the Consent Agreement, is not subject to the Consent Agreement's obligations and is not denied a benefit or right under the Consent Agreement. Kaufman has no direct stake in the outcome of the proceedings. Moreover, he is not left without a remedy. If dissatisfied, he can file a civil action against Langhofer, which it appears he already has done. See CV2007-091294. In the circumstances of this case, it cannot be said that the Board's action in entering into the Consent Agreement with Langhofer imposes a substantial burden on Kaufman or denies him a personal or property right. The most that can be said is that Kaufman does not agree with the Board's resolution of this matter. Without minimizing Kaufman's sense of frustration and loss, his disagreement is not sufficient to make Kaufman a "party aggrieved" and, therefore, entitled to appeal from the Board's actions under A.R.S. § 32-2234(G). ¶7 We find no error. Kaufman was not a party to the administrative proceeding despite the fact that he filed the complaint and participated in the Board's proceedings as a witness. Kaufman's remedy for the wrongful acts in which he alleged Langhofer engaged was to file a civil action against Langhofer, and he did so. The superior court properly dismissed Kaufman's attempted appeal from the consent decree entered into by the Board and Langhofer. 4 ¶8 For the foregoing reasons, the decision of the superior court dismissing Kaufman's complaint in this matter is affirmed. /s/ __________________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ______________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ ______________________________________ DIANE M. JOHNSEN, Judge 5

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