Kirsten v. Smith

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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 GARRY KIRSTEN; D.C.; SVETLANA PEDENKO, M.D.; QUIRINO VALEROS, M.D.; MICHAEL SHOWAH, D.C.; and MIDTOWN MEDICAL GROUP INC. dba PRIORITY MEDICAL CENTER, ) ) ) ) ) ) Plaintiffs/Appellants/ ) Cross-Appellees, ) ) v. ) ) STEVEN D. SMITH; CAVANAGH LAW ) FIRM; STATE FARM MUTUAL ) AUTOMOBILE INSURANCE COMPANY, ) ) Defendants/Appellees/ ) Cross-Appellants. ) __________________________________) 1 CA-CV 10-0397 DEPARTMENT D DIVISION ONE FILED: 10/25/2011 RUTH A. WILLINGHAM, CLERK BY: DLL MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2008-017811 The Honorable Joseph B. Heilman, Retired Judge VACATED Law Office of Eleanor L. Miller by Eleanor L. Miller Attorneys for Plaintiffs/Appellants/Cross-Appellees Phoenix Steptoe & Johnson LLP by Floyd P. Bienstock Douglas D. Janicik Attorneys for Defendants/Appellees/Cross-Appellants Phoenix P O R T L E Y, Judge ¶1 We are asked to decide whether the trial court erred when it granted a declaratory judgment to Drs. Garry Kirsten, Svetlana Pedenko, Quirino Valeros, employer, Midtown Medical Group, Center (hereinafter collectively Michael Inc. Showah, d/b/a designated and Priority as PMC ) their Medical against Steven D. Smith, Esq., The Cavanagh Law Firm, and State Farm Mutual Automobile designated as Insurance (hereinafter Because Smith ). Company we find collectively there was no justiciable controversy to give the court jurisdiction over the action, we vacate the grant of declaratory relief. FACTS AND PROCEDURAL BACKGROUND ¶2 against PMC filed Smith. a PMC declaratory sought a judgment permanent action in injunction 2008 and a declaration that if any of the doctors or chiropractors then employed by PMC or in the future is listed as an expert in a lawsuit being defended by Smith, the doctors or chiropractors must receive reasonable expert fees for the time they spend responding to discovery, pursuant to Arizona Rule of Civil Procedure 26(b)(4)(A) and (C). ¶3 According to the complaint, the lawsuit was part of a continuing battle reasonable fees depositions. between to its PMC and Smith doctors and over the payment chiropractors of for Some eight years earlier, in Pena v. State Farm 2 Mut. Auto. Ins. Co., 1 Maricopa County Superior Court Cause No. CV-1999-16698, PMC secured a declaratory judgment against Smith which provided, in relevant part: The court hereby declares, pursuant to its authority under A.R.S. § 12-1831, et seq., that when the [P]laintiffs are identified as a party s expert pursuant to Rule 26(b)(4)(A) of the Arizona Rules of Civil Procedure, the Plaintiffs are entitled to reasonable expert fees for the time they spend responding to discovery, including the deposition. The court further declares that, when the [P]laintiffs are not identified as experts by a party pursuant to [R]ule 26(b)(4)(A), and their depositions are noticed as ordinary fact witnesses pursuant to [R]ule 30, they are not entitled to such expert fees. ¶4 Smith complied with the Pena order. After the doctors who were the Pena plaintiffs left the employ of PMC, however, the complaint alleged that, regardless of whether a PMC doctor was listed as a plaintiff s expert, Smith would subpoena the PMC doctor for a deposition with a twelve-dollar check. ¶5 a Smith answered the complaint. motion for summary judgment and PMC subsequently filed Smith dismiss with its response to PMC s motion. filed a motion to PMC argued that the doctrine of offensive collateral estoppel or issue preclusion should apply to Smith. The trial court rejected the collateral 1 Smith and The Cavanagh Law Firm were also defendants in Pena. The plaintiffs, however, were one doctor and two chiropractors who are no longer employed by PMC. 3 estoppel argument, but adopted the Pena ruling and held that, in matters assigned to this division, Defendants . . . are precluded from seeking the issuance of subpoenas for discovery or trial, accompanied by funds which pay only ordinary witness fees, to treating physicians [who] are designated as experts in this case . continued . use . of . The court non-conforming also stated subpoenas . that . . Smith s evince an element of bad faith on the part of Defendants, and . . . might be characterized as harassment of the plaintiffs. awarded denied attorney s the fee fees request and costs after it to PMC, found but that The court subsequently PMC failed to demonstrate that its fees were reasonable. ¶6 PMC filed a notice of appeal, and Smith filed a cross appeal. We Statutes have ( A.R.S. ) jurisdiction section pursuant 12-2101(A)(1) to Arizona Revised and (A)(5)(b) (2011 Ariz. Sess. Laws, ch. 304, § 1 (1st Reg. Sess.)). DISCUSSION 2 ¶7 there The central and only issue we will decide is whether was a justiciable controversy 2 between the parties. Because this case was summarily decided, we review the grant of summary judgment de novo, both as to whether there are any genuine issues of material fact and as to whether the moving party is entitled to judgment as a matter of law. Greenwood v. State, 217 Ariz. 438, 442, § 13, 175 P.3d 687, 691 (App. 2008) (citing Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 482, ¶¶ 13-14, 38 P.3d 12, 20 (2002)). 4 Although Smith argues that there is no justiciable controversy and PMC argues appropriate that for the dispute declaratory evades relief, we review find and no thus is justiciable controversy to give the trial court jurisdiction to resolve the dispute. ¶8 [A] justiciable controversy exists if there is an assertion of a right, status, or legal relation in which the plaintiff has a definite interest and a denial of it by the opposing party. Keggi v. Northbrook Prop. and Cas. Ins. Co., 199 Ariz. 43, 45, ¶ 10, 13 P.3d 785, 787 (App. 2000) (internal quotation marks omitted) (quoting Samaritan Health Servs. v. City of Glendale, 148 Ariz. 394, 395, 714 P.2d 887, 888 (App. 1986). To determine whether the trial court has jurisdiction to resolve the matter, the complaint must set forth sufficient facts to establish that there is a justiciable controversy. Planned Parenthood Ctr. of Tucson, Inc. v. Marks, 17 Ariz. App. 308, 310, 497 P.2d 534, 536 (1972). ¶9 Although the declaratory judgment act is to be liberally interpreted, Keggi, 199 Ariz. at 45, ¶ 10, 13 P.3d at 787, it is not designed to furnish an additional remedy when an adequate one exists. 92 Ariz. 136, 139, Merritt-Chapman & Scott Corp. v. Frazier, 375 P.2d 18, 19-20 (1962) (holding that declaratory relief is inappropriate when the issue presented is already pending in another forum); Land Dep t v. O Toole, 154 5 Ariz. 43, 47, declaratory 739 P.2d relief is theoretical rights. 1360, 1364 (App. 1987). to resolve inappropriate however, may be appropriate abstract proposition if review. 1210, or one future or Hunt v. Richardson, 216 Ariz. 114, 125, ¶¶ 37-38, 163 P.3d 1064, 1075 (App. 2007). importance Moreover, that the is to decide issue capable is of Declaratory relief, a moot one question of or great yet repetition public evading Thomas v. City of Phoenix, 171 Ariz. 69, 74, 828 P.2d 1215 (App. 1991) (internal quotation marks omitted) (citing Contempo-Tempe Mobile Home Owners Ass n v. Steinert, 144 Ariz. 227, 230, 696 P.2d 1376, 1379 (App. 1985)). ¶10 Here, after the complaint identified the parties and recited the Pena order, paragraph nine stated that Dr. Showah had not been served with any subpoena by Smith but could be subpoenaed if and when he is listed as a plaintiff s expert. The next two paragraphs stated that Drs. Kirsten and Pedenko were served in Mendoza v. Hunter, Maricopa County Superior Court Cause No. CV-2007-015673, but that neither doctor received any check with the subpoena and Smith did not comply with Arizona Rule of Civil Procedure 30(a) as to Dr. Pedenko. ¶11 On its face, the complaint does not justiciable issue between Smith and Dr. Showah. allege any The complaint anticipates that there may be a conflict if and when Dr. Showah sees a patient who becomes a plaintiff and Smith wants to depose 6 the doctor. and acts. Declaratory relief cannot anticipate future events See Hunt, 216 Ariz. at 125, ¶ 38, 163 P.3d at 1075. Consequently, there was no justiciable controversy between Dr. Showah and Smith to warrant declaratory relief. ¶12 Similarly, Dr. Valeros is listed in the caption as a plaintiff and identified in an current or former PMC employee. introductory paragraph as a There are no facts alleged in the complaint that would create a justiciable controversy with Smith. In fact, in the rebuttal statement of facts supporting PMC s motion for summary judgment, Dr. Valeros was subpoenaed by Smith in 2006 and the matter was resolved reasonable fees as a listed expert witness. when he received Consequently, there was no justiciable controversy between Valeros and Smith at the time the complaint was filed to warrant declaratory relief. ¶13 Although Drs. Kirsten and Pedenko were subpoenaed in the Mendoza matter, both had, and exercised, a remedy in that case. 3 Dr. Pedenko successfully challenged her subpoena and it was quashed. Dr. Kirsten also challenged his subpoena after he was listed as the plaintiff s expert and Smith was required to pay his reasonable fees. The fact that the doctors had an adequate remedy in the Mendoza forum to challenge the subpoenas, and successfully did so, demonstrates 3 that there was not a The case was settled. A stipulated dismissal was filed on November 6, 2009, and the case was dismissed with prejudice the following month. 7 separate justiciable controversy that warranted the exercise of declaratory relief. ¶14 Finally, there is no allegation in the complaint that PMC has a justiciable dispute with Smith. Although PMC argued in it its motion because for doctors summary in its judgment that employment has eventually an interest leave its employment after receiving subpoenas without a check for their reasonable pursuant fees to when Rule they are 26(b)(4)(C), listed PMC as did an not expert allege witness a legal interest that it can assert which is being denied or can be denied by Smith. Consequently, there is no justiciable controversy between PMC and Smith. ¶15 PMC argues, however, that its disagreement with Smith about the interpretation of Rule 26(b)(4)(C) continues to be repeated and evades review because its doctors and chiropractors have to routinely hire a lawyer to file pleadings to get a superior court to order Smith to pay them reasonable fees when they have been listed as an expert. in Board of Examiners of Plumbers Long ago our supreme court, v. Marchese, stated that whether an appellate court should pass upon the merits of a case which has discretionary. (1937). become 49 Ariz. moot, 350, to a 352-53, great 66 P.2d extent, 1035, is 1037 We have, however, stated that we need not exercise that discretion even if the case is capable of repetition but does 8 not evade review. See Thomas, 171 Ariz. at 74-75, 828 P.2d at 1215-16; Contempo-Tempe Mobile Home Owners Ass n, 144 Ariz. at 230, 696 P.2d at 1379. ¶16 Although it is clear that the issue has been raised with different trial judges or arbitrators since Pena, each PMC doctor or chiropractor served with a subpoena and only a twelvedollar check has a remedy under the Arizona Rules of Civil Procedure if he or she is listed as an expert and files a motion for a protective order. Moreover, as we learned during the appellate PMC oral seeking fees. argument, has always been successful in If, however, a trial court disagreed with the doctor or chiropractor, a petition for special action could be filed because remedy on the appeal. doctor Thus, or chiropractor although the repetition, it does not evade review. does issue not is have any capable of Consequently, because there is a remedy, there is no justiciable controversy to allow the trial court to exercise jurisdiction to grant declaratory relief. ¶17 Because there was no justiciable controversy, summary judgment was improvidently granted and the complaint should have been dismissed as a matter of law. ruling in its entirety. 9 We therefore vacate the ¶18 PMC asks this court for attorneys fees and costs. Because PMC did not prevail, the request is denied. CONCLUSION ¶19 Based on the foregoing, the declaratory judgment is vacated in its entirety. /s/ _____________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ ________________________________ JON W. THOMPSON, Presiding Judge /s/ ________________________________ JOHN C. GEMMILL, Judge 10

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