CANALES v. HON. PLANTE/CANALES

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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 MARISOL A. CANALES, ) ) Petitioner, ) ) v. ) ) THE HONORABLE JOHN PAUL PLANTE, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of YUMA, ) ) Respondent Judge, ) ) DAVID R. CANALES, ) ) Real Party in Interest. ) __________________________________) DIVISION ONE FILED: 10/8/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-SA 13-0180 DEPARTMENT A (AUGUST) Yuma County Superior Court No. S1400DO200801189 DECISION ORDER This special action was considered by Presiding Judge Peter B. Swann and Judges Kent E. Cattani and Diane M. Johnsen during a regularly scheduled conference held on August 6, 2013. After consideration, and for the reasons that follow, IT IS ORDERED that the Court of Appeals, in the exercise of its discretion, accepts jurisdiction in this special action and grants relief. We are required to decide whether the superior court abused its discretion by denying the petitionerâ s notice of change of judge under Ariz. R. Civ. P. 42(f)(1). We hold that under the literal terms of Rule 42(f)(1), the petitioner did not waive her 1 CA-SA 13-0180 Page 2 right to notice the currently assigned judge because the judgeâ s previous involvement in the case was limited to ruling on an ex parte application at a time before the judge was permanently assigned to the case. The relevant procedural history is as follows. In December 2009, in Yuma County Superior Court Case No. S1400DO-2008-01189, Commissioner Stocking-Tate entered a decree dissolving the marriage of the petitioner (â Motherâ ) and the real party in interest (â Fatherâ ). obtained an existing case order In August 2010, Mother applied for and of protection number. The judge against who Father granted under the ex the parte application was Judge Plante. In the following years, a series of administrative orders regarding the superior courtâ s case management system resulted in several reassignments of Case No. S1400DO-2008-01189. case was Kenworthy, reassigned then from from Commissioner Judge Kenworthy Stocking-Tate to Judge to The Judge Reeves, and finally from Judge Reeves to Judge Plante starting January 1, 2013. After Judge Plante was assigned, Father filed an ex parte application for temporary restraining orders that would grant him temporary custody of the partiesâ children. Judge Pro Tem Aguirre granted Fatherâ s motion and set the matter for a hearing before Judge Plante. motion requesting The next day, Mother filed an ex parte that the temporary 2 restraining orders be 1 CA-SA 13-0180 Page 3 quashed. Judge Pro Tem Aguirre granted relief to Mother, ordered the children returned to Motherâ s custody, and reset the scheduled hearing. Before the hearing date, Mother sought reassignment of the case from Judge Plante by filing a notice of change of judge as a matter of right. Judge Plante denied Motherâ s notice, holding that she had waived her right to notice him because of his previous involvement in the case. Mother reconsideration and the motion was denied. then moved for She then brought this special action and requested a stay, which we granted. accept jurisdiction because special action provides the We only avenue for relief from the denial of a notice of change of judge, and erroneous. because See the Ariz. superior R.P. courtâ s Spec. Act. ruling 1(a); was plainly Taliaferro v. Taliaferro, 186 Ariz. 221, 223-24, 921 P.2d 21, 23-24 (1996); Amos v. Bowen, 143 Ariz. 324, 327, 693 P.2d 979, 982 (App. 1984). Rule 42(f) governs notices and requests for change of judge in family ARFLP 6; court ARPOP cases and 1(A)(2). in Under protective Rule order proceedings. 42(f)(1)(A), â [i]n any action pending in superior court, except an action pending in the Arizona Tax Court, each side is entitled as a matter of right to a change of one judge and of one court commissioner.â But the right can be waived. Rule 42(f)(1)(D) provides: 3 1 CA-SA 13-0180 Page 4 After a judge is assigned to preside at trial or is otherwise permanently assigned to the action, a party waives the right to change of that judge as a matter of right when: (i) the party agrees to the assignment; or (ii) after notice to the parties (aa) the judge rules on any contested issue; or (bb) the judge grants or denies a motion to dispose of one or more claims or defenses in the action; or (cc) the judge holds a scheduled conference or contested hearing; or (dd) trial commences. Such waiver is to apply only to such assigned judge. â [W]hat the [waiver] rule means is that the right to a peremptory challenge against the trial judge is lost as soon as the parties have reason to know how he feels about any aspect of the merits of the case.â King v. Superior Court (Taber), 108 Ariz. 492, 494, 502 P.2d 529, 531 (1972). The merits of the case â refer[] to significant legal rights as distinguished from technicalities relating to only procedure or form.â Dudley v. Superior Court (Tenka), 123 Ariz. 80, 81-82, 597 P.2d 983, 98485 (1979) (citation omitted). Here, Judge Planteâ s resolution of Motherâ s August 2010 application for an order of protection arguably gave Mother some insight into his views on the merits of the partiesâ ongoing custody disputes. But under the plain terms of Rule 42(f)(1)(D), waiver can occur only â [a]fter a judge is assigned to preside at trial or is otherwise permanently assigned to the action.â Nothing in the record provided to us suggests that 4 1 CA-SA 13-0180 Page 5 Judge Plante presided at a trial or was permanently assigned to the partiesâ case at any point before January 1, 2013. Neither Motherâ s application for order of protection nor Judge Planteâ s resolution of the application changed the caseâ s permanent assignment. To promote efficiency and discourage â judge shopping,â post-decree disputes are considered to be a part of the original action and do not entitle a litigant to refresh his Mahoney, or 108 her rights Ariz. 498, under 500, Rule 502 42(f)(1). P.2d Hofstra 1317, 1319 v. (1972). Logically, this rule includes parentsâ post-decree applications for orders of protection protection proceedings against were each properly other. The conducted order under of the original case number, which case remained at that time assigned to Commissioner Stocking-Tate. the application administrative -- policy protective-order most To be sure, a â newâ judge heard likely designed to applicants. But because ensure because of speedy the a general relief â newâ for judge neither presided over a trial nor was permanently assigned to the case, there was no waiver under Rule 42(f)(1)(D). Cf. Medders v. Conlogue, 208 Ariz. 75, 77-79, ¶¶ 6-12, 90 P.3d 1241, 1243-45 (App. 2004) (holding that criminal defendant did not waive right to notice judge who previously presided over contested release-conditions hearing because at the time of the 5 1 CA-SA 13-0180 Page 6 hearing that judge was not â assignedâ within the meaning of Ariz. R. Crim. P. 10.2(c)(3)). Mother timely exercised her right to a change of judge after Judge Plante was permanently assigned and before he entered any rulings or held any conferences or hearings as the permanently assigned judge. should not have been denied. Her notice of change of judge We therefore grant special action relief and direct that the case be reassigned from Judge Plante. /s/ ___________________________________ PETER B. SWANN, Presiding Judge 6