Walters v. Hon. Budoff/Winkler
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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 DIVISION ONE FILED: 01/28/2010 PHILIP G. URRY,CLERK BY: GH ) 1 CA-SA 09-0317 CARRIE L. WALTERS, M.D., a single ) woman, ) DEPARTMENT B ) Petitioner, ) DECISION ORDER ) v. ) ) THE HONORABLE ROBERT BUDOFF, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, ) ) Respondent Judge, ) ) LOIS WINKLER, on her own behalf, ) ) Real Party in Interest. ) ) ) The court, Presiding Judge Patricia K. Norris, and Judges Daniel A. Barker and Peter B. Swann, has considered Petitioner Carrie L. Walters Petition for Special Action, the Response, and Reply. Petitioner raises three issues with regard to this case. She contests requiring the trial production of court s Dr. orders Walters with regard medical to: (1) records, (2) requiring Dr. Walters to submit to a Rule 35 examination, and (3) requiring production of Dr. Walters income tax returns. 1 CA-SA 09-0317 As to issues (1) and (2), the documents at issue, with limited exception, have already been produced thus obviating the need for special action review. Accordingly, IT IS ORDERED declining jurisdiction. As to issue (3), IT IS ORDERED accepting jurisdiction and granting relief. Winkler asserts that because she made detailed factual allegations in her amended complaint, there is no need for her to present evidence establishing a prima facie case based on admissible evidence that entitles damages claim submitted to a jury. order must be based on a prima her to have the punitive We disagree. The court s facie case established by evidence, not allegations. As stated in Larriva v. Montiel, 143 Ariz. 23, 24, 691 P.2d 735, 736 (App. 1984), there must be prima facie proof of a defendant s liability for punitive damages before his wealth or financial condition may be discovered. For instance, if a motion for partial summary judgment was brought and denied, this would constitute a prima facie case for punitive damages. There are many other ways a prima facie case may be established. Id. Accordingly, IT IS ORDERED vacating the trial court s order as to the production of income tax records without prejudice to the reissuance of the order in the event Winkler establishes a prima 2 1 CA-SA 09-0317 facie case entitling her to have the issue of punitive damages submitted to a jury. /s/ _____________________________ DANIEL A. BARKER, Judge 3
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