Gailey v. Hon Bartlett/Caudill

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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. 31.34 DIVISION ONE FILED: 01/17/2012 RUTH A. WILLINGHAM, CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE LISA GAILEY, ) ) Petitioner, ) ) v. ) ) THE HONORABLE RANDOLPH A. ) BARTLETT, Judge of the SUPERIOR ) COURT OF THE STATE OF ARIZONA, in ) and for the County of MOHAVE, ) ) ) Respondent Judge, ) ) DONALD CAUDILL and BARBARA ) CAUDILL, husband and wife; A TO Z TAX AND BUSINESS SERVICES; MOHAVE ) COUNTY CONSTRUCTION INC.; DANIEL ) BROWN and SANDY BROWN, husband and ) wife, ) ) Real Parties in Interest. ) ) No. 1 CA-SA 11-0300 DEPARTMENT E Mohave County Superior Court No. CV 2010-07021 DECISION ORDER It has come to the attention of the Court, Presiding Judge Diane M. Johnsen and Judges Donn Kessler and Lawrence F. Winthrop, that the Court did not deliver to petitioner a copy of the order dated December 9, 2011, that set certain deadlines for the December 8, 2011, special action. Court erred by dismissing the For that reason, this special action based petitioner s failure to comply with the December 9 order. on No. 1 CA-SA 11-0300 Mohave County Superior Court No. CV 2010-07021 The petition for special action contends the superior court erred by denying the request for change of judge as a matter of right, pursuant to Arizona Rule of Civil Procedure 42(f). Petitioner argues the motion for more definite statement did not result in a ruling 42(f)(1)(D)(ii)(aa), on a contested because she did issue, not pursuant contest to the Rule motion. Without deciding that issue, the Court notes that according to the record, the superior court held at least one scheduled conference that constitutes a waiver of petitioner s right to change of judge as of right. October 14, 2010 (Pet. App. See Minute Entry Order filed 25); Rule 42(f)(1)(D)(ii)(cc). Accordingly, and upon consideration, IT IS ORDERED vacating the Court s prior order dated December 28, 2011, for failure to comply with the December 9 order; IT IS FURTHER ORDERED declining to accept jurisdiction of the petition for special action. IT IS FURTHER ORDERED vacating this Court s previous order requiring the filing and service of a response. 2 No. 1 CA-SA 11-0300 Mohave County Superior Court No. CV 2010-07021 IT IS FURTHER ORDERED directing the clerk of this court to send a copy of this order to the following: Honorable Randolph A. Bartlett Mohave County Superior Court Division II 401 East Spring Street P. O. Box 7000 Kingman, Arizona 86402-7000 Kenneth E. Moyer, Esq. Law Office of Kenneth E. Moyer, PLLC 1845 McCulloch Boulevard, Suite A-10 Lake Havasu City, Arizona 86403 Barry Dale, Esq. 2415 East Camelback Road, Suite 700 Phoenix, Arizona 85016 /s/ DIANE M. JOHNSEN, Presiding Judge 3

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