Higgins v. Hon. Burke/Warne
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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 DENNIS D. HIGGINS and SANDRA K. HIGGINS, 13248 North 80th Place, Scottsdale, Arizona 85260, Petitioners, v. THE HONORABLE EDWARD O. BURKE, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, WARNE INVESTMENTS, LTD., an Arizona corporation, Real Party in Interest. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 04-21-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-SA 10-0060 DEPARTMENT B Maricopa County Superior Court No. CV 2004-014521 DECISION ORDER JURISDICTION ACCEPTED; RELIEF DENIED In this special action, petitioners Dennis D. and Sandra K. Higgins ask us to reverse an order entered by the superior court denying their motion to dismiss for failure to prosecute and misrepresentation. Because the Higginses have no adequate remedy by appeal from such an order, Cf. Francini v. Phoenix Newspapers, Inc., 188 Ariz. 576, 584, 937 P.2d 1382, 1390 (App. 1996), The Judges Court, Daniel accepts A. special Presiding Barker Patricia Peter B. jurisdiction action and Judge but K. Swann Norris and participating, denies the specific relief requested; petitioners, however, may submit a judgment on the mandate as discussed below. This special action arises out of this court s opinion in this case, Warne Investments, Ltd. v. Higgins, 219 Ariz. 186, 195 P.3d 645 (App. 2008), and our issuance of the mandate in accordance with that opinion. As we explained in our opinion, the real party in interest, Warne Investments, Ltd. ( Warne ) sued the Higginses and Bridge Info Tech, Inc., a business entity associated with the Higginses, asserting claims for successor corporate liability, breach of the Uniform Fraudulent Transfer Act ( UFTA ), doctrine. and liability under the corporate trust fund For the reasons set forth in our opinion, we affirmed the judgment entered by the superior court against Bridge Info Tech, Inc. on the successor corporate liability and UFTA claims, id. at 191, ¶ 15, 194, ¶ 29, 195 P.3d at 650, 653, and the judgment entered by the superior court against the Higginses personally under the trust fund doctrine. P.3d at 655. Although we did not Id. at 196, ¶ 42, 195 specify the date of the superior court judgment we affirmed on appeal, the record before us reflects this judgment was entered by the superior court on March 9, 2006. We reversed, however, the superior court judgment against the Higginses for personal liability under the successor liability doctrine and the UFTA. 199, ¶ 59, 195 P.3d at 655, 658. 2 Id. at 196, ¶ 43, The record before us reflects the judgment we reversed had superior court on May 9, 2006. court issued the mandate been entered separately by the In due course, the clerk of this which COMMANDED that such proceedings be had in said cause as shall be required to comply with the decision of this court . . . . After issuance of our mandate, Warne evidently began to enforce the judgment, and unfortunately, in doing so referred to the May 9, 2006 judgment. Of course, the only judgment Warne was entitled to enforce was the March 9, 2006 judgment as this court had reversed the May 9, 2006 judgment. Subsequently, the Higginses filed a motion to dismiss for failure to prosecute and misrepresentation asserting Warne had failed to prosecute and comply with Local Rules of Practice of the Superior Court for Maricopa County 2.3(b) and 3.6(a)(1). The superior court denied the Higginses motion to dismiss stating there s nothing left to prosecute. We agree with the superior court s interpretation of the local rules. Rule 2.3(b) only applies if a case is remanded by the appellate court for a new trial. rule, Rule 3.6(a)(1) states a case Consistent with that shall be dismissed for failure to prosecute if there is a noncompliance with Rule 2.3 within two months after the date of the filing of the mandate of the appellate court. any issue. Here, we did not remand for a new trial on Instead, we affirmed the March 9, 2006 judgment and reversed the May 9, 2006 judgment. therefore, correct in determining The superior court was, further unnecessary to comply with our opinion. 3 proceedings were Although the superior court was and is not required to initiate any proceedings to comply with our opinion, the Higginses may request the superior court enter a judgment on the mandate reflecting (1) they prosecuted a timely appeal from the judgment entered by that court on May 9, 2006, and (2) on April 15, 2008, this court filed Warne Investments, Ltd. v. Higgins, No. 1 CA-CV 06-0410 (App. 2008), and reversed the superior court s May 9, 2006 judgment. For the foregoing reasons, we deny the relief requested by the Higginses. /s/ ___________________________________ PATRICIA K. NORRIS, Presiding Judge 4
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