COX v. HON ANDERSON/OLSON

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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 DIVISION ONE FILED: 12/4/2012 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE SHERRY COX, now known as Sherry Lund, ) ) ) Petitioner, ) ) v. ) ) THE HONORABLE ARTHUR T. ANDERSON, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, ) ) Respondent Judge, ) ) JEWELS BY G. DARRELL OLSON, INC., ) an Arizona Corporation, ) ) Real Party in Interest. ) __________________________________) 1 CA-SA 12-0249 DEPARTMENT B Maricopa County Superior Court No. CV0000-445923 DECISION ORDER The court, Presiding Judge Maurice Portley and Judges Patricia A. Orozco and Randall M. Howe participating, has considered the petition for special action filed by Sherry Cox, now known as Sherry Lund ( Lund ). we accept court to jurisdiction issue and findings of deny For the following reasons, relief, facts and but order conclusions support the denial of the protective order. the of trial law to PROCEDURAL BACKGROUND The Real Party in Interest, Jewels by G. Darrell Olson, Inc., secured a judgment by default against Lund that was filed on September 6, 1983. the years. The judgment was duly renewed over The Real Party in Interest discovered that Lund had gotten married and served her with a subpoena to appear at an April 19, 2011 debtor s examination. After the Real Party in Interest refused to stipulate to a protective order, Lund filed a motion for a protective order. The motion was denied. Lund then filed this special action. JURISDICTION Special action jurisdiction is discretionary. Rev. Stat. however, a ( A.R.S. ) § party not does 12-120.21(A)(4) have a remedy exercise special action jurisdiction. 8(a). we (West on Ariz. 2012). appeal, If, we can Ariz. R.P. Spec. Act. Discovery matters can be resolved by special action, and assume that post-judgment resolved by special action. discovery matters can also be See, e.g., Am. Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, 511, ¶ 10, 217 P.3d 1212, 1216 (App. 2009). 2 DISCUSSION Lund contends that the trial court abused discretion by denying her motion for protective order. Party in Interest argues that the court did not its The Real abuse its discretion. Post-judgment discovery is governed by Arizona Rule of Civil Procedure ( Rule ) 69. The Rule provides, in relevant part, that the judgment creditor . . . may obtain discovery from any person, including the judgment debtor, in the manner provided in these Rules or otherwise by law. Ariz. R. Civ. P. 69. The reference to other rules in Rule 69 includes the general discovery rule, Rule 26. Although a judgment creditor can use the discovery rules to attempt to collect the judgment, a judgment debtor protective order. can seek to use Rule 26(c) to secure a Rule 26(c) places the burden of proof on the party seeking the protective order. The Rule then provides that [t]he court shall then make findings of fact concerning any relevant factors, and lists three in reaching its decision. Ariz. R. Civ. P 26(c)(2). The Rule concludes by providing that [n]o such findings of fact are needed where the parties have stipulated to such an order or where a motion to intervene and to obtain access to materials subject to a confidentiality order are not opposed. Id. 3 Here, the trial court did not make any findings of fact when it denied the motion for protective order. the court appears has to discretion require that making its decision. to the resolve court the make request, findings of Although the Rule fact in Our understanding of the requirement finds support in the interpretation of Federal Rule of Civil Procedure 26(c). See Marquette Venture Partners II, L.P. v. Leonesio, 227 Ariz. 179, 182 n.6, ¶ 11, 254 P.3d 418, 421 n.6 (App. 2011) (noting that we look to the interpretation of federal rules when those rules are similar to our civil rules). For example, in Chicago Tribune Co. v. Bridgestone/Firestone, Inc., the Tribune was attempting to get the district court to unseal agreed should be sealed. 2001). documents that the parties had 263 F.3d 1304, 1308-09 (11th Cir. The district court ordered the documents to be unsealed but granted a stay pending review. Id. In determining that the denial of a protective order would be reviewed for an abuse of discretion, the circuit court noted that findings of fact made by a [trial] court need to be sufficiently detailed to permit meaningful appellate review. the district court did not Id. at 1314. make any After finding that findings supporting its ruling, the circuit court stated that whether good cause exists for a protective order is a factual matter to be decided by the nature and character of the information 4 in question, this determination, supported by findings of fact, must be conducted upon remand. Id. at 1315. Consequently, in the absence of a stipulation or an unopposed agreement to access material subject to a confidentiality order, Rule 26(c) requires a trial court to make findings of fact in ruling on a protective order. Because the trial court did not make findings of fact in denying the motion, we deny the relief sought, vacate our stay and order the trial court to make its findings of fact to support its decision. The Real Party in Interest has also requested an award of attorney s fees in this matter. In the exercise of our discretion, we deny the request. CONCLUSION Based on the foregoing, we accept jurisdiction but deny relief and order the trial court to make findings of fact in support of its decision. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge 5

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