Levy v. Hon. Eldridge/Englund

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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 ROBERT A. LEVY and PHYLLIS B. LEVY, ) ) ) Petitioners, ) ) v. ) ) THE HONORABLE PATRICK ELDRIDGE, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of Maricopa, ) ) Respondent Judge, ) ) WILLIAM A. ENGLUND, ) ) Real Party in Interest. ) __________________________________) DIVISION ONE FILED: 09/02/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-SA 10-0168 DEPARTMENT E Maricopa County Superior Court No. CV2001-011987 DECISION ORDER This special action was considered by Presiding Judge Sheldon H. Weisberg and Judges Peter B. Swann and Jon W. Thompson during a regularly scheduled conference held on August 31, 2010. After consideration, and for the reasons that follow, it is ordered that the Court of Appeals, in the exercise of its discretion, accepts jurisdiction and denies relief. In this special action, petitioners contend that the trial court did not comply with the mandate that followed our decision in Levy v. Englund, 1 CA-CV 07-0260. In that decision, we ordered that a judgment against the petitioners be reduced from $279,901.00 to a total of $212,481.09 plus any attorney s fees and costs awarded on appeal. We awarded $19,564.50 to respondents on appeal. The parties submitted competing forms of judgment, and the superior court entered judgment in the form proposed by respondents, $19,564.50.1 containing separate awards of $212,481.09 and Petitioners argue that the post-remand judgment failed to comply with the mandate because they had satisfied the earlier, larger judgment and are entitled to a refund of the balance. The specific superior mandate and court s entry appellate of decision judgment is not based on a appealable. Scates v. Ariz. Corp. Comm n, 124 Ariz. 73, 75, 601 P.2d 1357, 1359 (App. 1979). Because petitioners only avenue of review is by special action, we accept jurisdiction. We deny relief, however, for two reasons. First, the judgment that the superior court entered is not defective - it conforms precisely to the terms of the mandate. Second, the record contains nothing from which we can accept at face value petitioners liability to assertion that respondents. they To 1 the have overpaid extent that on their they have We note that, contrary to Ariz. R. Civ. P. 54(a), the judgment contains extensive recitals of pleadings, findings of fact and conclusions of law. This defect in form does not render the judgment ineffective, nor is it important to the issue presented by this special action. 2 overpaid, and respondents do not voluntarily refund the overpayment, petitioners may seek redress in the superior court once the material facts have been established. /s/ ________________________________ Peter B. Swann, Judge 3

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