Norman v. Hon. Jones/Fitzsimmons
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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: 06-15-2010 PHILIP G. URRY,CLERK BY: GH PAUL C. NORMAN and JANE DOE ) No. 1 CA-SA 10-0095 NORMAN, as natural persons; PAUL ) C. NORMAN REVOCABLE LIVING TRUST, ) DEPARTMENT E ) Petitioner, ) Yavapai County ) Superior Court v. ) No. V1300CV820090222 ) THE HONORABLE KENTON D. JONES, ) (Not for Publication Judge of the SUPERIOR COURT OF ) Rule 28, Arizona Rules of THE STATE OF ARIZONA, in and for ) Civil Appellate Procedure) the County of YAVAPAI, ) ) Respondent Judge, ) ) DECISION ORDER HUGH and BERTHICA FITZSIMONS, ) husband and wife; REAL ESTATE ) EXCELLENCE, INC., d/b/a RMA) SEDONA; PHILIP TATUM, its ) designated broker; BRUCE TOBIAS, ) sales agent; KELLY HOME ) INSPECTION, L.L.C., a purported ) Arizona limited liability ) company, ) ) Real Parties in Interest. ) ) The court, Presiding Judge Diane Johnsen and Judges Patrick Irvine and Philip Hall, has considered Petitioners Petition for Special Action, Real Parties in Interest Fitzsimons Response to Petition, and Petitioners Reply. As Real Parties concede, a litigant that contends the superior court erred by denying a notice of change of judge pursuant to Arizona Rule of Civil Procedure 42(f) may obtain review of that decision only by way of special action. Taliaferro v. Taliaferro, 186 Ariz. 221, 223, 921 P.2d 21, 23 (1996). By order dated July 8, 2009, the superior court set oral argument 2009. on Petitioners Motion to Dismiss for November 18, We have the benefit of a transcript of the proceeding that occurred on November 18. At the outset of that proceeding, the superior court informed the parties of the various filings it had received and noted that it additional filing and possibly others. anticipated at least one The court then asked the parties whether they would . . . rather go ahead with the oral argument today or whether the argument should be until after all anticipated filings had been filed. continued One of the parties suggested that in order to decide whether to go forward with oral argument, the court would need to rule on whether it would allow supplemental briefing. At that point, the court indicated that it was inclined to put off considering the motion to dismiss until it had received all the respective filings: I do think it would be so fraught with potential rule violations to try and be very, you know, circumspect about what we may be able to handle today in light of not even having pleadings in front of us. I 2 think every bit of that really does a disservice to the clients if in fact this court then can t look at those in some sort of a process-oriented fashion and be able to attribute, I m kind of overstating this a bit, but to be able to attribute value as appropriate to each pleading as it s reviewed. When one of the parties then noted that depending on the nature of the filings, the court might need to consider the Rule 12(b) motion pursuant to Rule 56, the court responded, And we are truly engaging in a dissociative intellectual discussion for me right now, because I truly don t know what the attachments are. The court then invited other counsel to comment. At that, there was discussion about stipulating to allowing defendants answers to the initial complaint to stand as responses to an amended complaint. that the Immediately thereafter, one of the parties noted parties had agreed to mediate the matter. The discussion thereafter concerned the mediation and the court s decision to continue oral argument on the motion to dismiss pending the mediation. Several months later, after the mediation failed, Petitioners filed a notice of change of judge pursuant to Rule 42(f)(1). After Real Parties objected, the superior court denied the request for change, reasoning that what occurred on November 18, 2009 was a scheduled conference that acted as a waiver pursuant to Rule 42(f)(1)(D)(ii). 3 As relevant to the petition, Rule 42(f)(1)(D)(ii) precludes a party from exercising an of-right change of judge when . . . (ii) after notice to the parties . . . (cc) the judge holds a scheduled conference or contested hearing. We review the denial of a Rule 42(f)(1) notice for an abuse of discretion, but we review de novo the superior court s interpretation of the rule. Anderson v. Contes, 212 Ariz. 122, 124, ΒΆ 5, 128 P.3d 239, 241 (App. 2006). We hold the proceeding that occurred on November 18, 2009 was not a scheduled conference within the meaning of Rule 42(f). The order the court issued scheduling the proceeding announced that oral argument on the motion to dismiss would be held on that date; it said nothing indicating the court would hold a conference of any nature on that date. Scheduled in this context means plan[ned] for a certain date, Webster s Unabridged Dictionary 1713 Random House (2001), or an event place[d] or include[d] in a schedule, New World Dictionary 1272 (2d November coll. 18 was ed. a 1980). Assuming conference, it that was what not occurred a on scheduled conference because it was not planned (scheduled) in advance. Moreover, although an oral argument had been scheduled for November 18, as the superior court impliedly contested hearing took place on that day. concluded, no Instead, as related above, the court learned the parties had filed and were expected 4 to file additional additional filings papers were relating expected, to and the motion. because Because the parties informed the court they had agreed to participate in mediation, the oral argument was put off. As the superior court later observed, the Court directed that the mediation be pursued and that the pending motions, and argument thereon, be held in abeyance until mediation had been completed. Real Parties argue that because the hearing scheduled for November 18 evolved into a conference, the waiver provision of Rule 42(f)(1)(D)(ii)(cc) effectively construe was the a rule applies scheduled in because what conference. that fashion. But Because occurred we cannot subpart D distinguishes between a scheduled conference and a contested hearing, we will not interpret it to encompass a scheduled-butaborted contested hearing that on the spur of the moment turns into a conference. As we held in Williams v. Superior Court, 190 Ariz. 80, 83, 945 P.2d 391, 394 (App. 1997), the concept of notice is fundamental to Rule 42(f)(1) s waiver provisions. Because a conference was not noticed (scheduled) for November 18, the fact that the proceeding that occurred on that day may have turned into a conference does not bring it within the waiver provisions of Rule 42(f)(1)(D)(ii). Real Parties also argue that Petitioners right to a change of judge under these circumstances 5 should not turn on the fortuity of the court s decision (which it appears no party had suggested or advocated prior to the hearing) to continue the oral argument pending the mediation. Rule controls. when the hearing. judge Again, the language of the Pursuant to subpart D(ii)(cc), waiver occurs holds a scheduled conference or contested If a conference or a hearing is scheduled but for any reason is not held, waiver does not occur. Accordingly, IT IS ORDERED accepting jurisdiction of the petition for special action; IT IS FURTHER ORDERED granting relief by vacating the superior court s order dated April 28, 2010 and directing the court to grant Petitioner s Notice of Change of Judge pursuant to Arizona Rule of Civil Procedure 42(f)(1); IT IS FURTHER ORDERED denying Real Parties request for attorney s fees. /s/______________________________ DIANE M. JOHNSEN, Presiding Judge 6
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