GREATER v. HON HARRIS, et al.

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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 GREATER GLENDALE FINANCE, L.L.C., ) ) ) Plaintiff/Appellant,) ) v. ) ) HON. MYRA A. HARRIS, Commissioner) of the Superior Court of the ) State of Arizona, in and for the ) County of Maricopa, ) ) Defendant/Appellee,) ) and ) ) JAMES MUIGA NDEGWA and SUSAN N. ) MUIGA, husband and wife, ) ) Real Parties in Interest ) Appellees.) _________________________________) DIVISION ONE FILED: 4/23/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CV 12-0592 DEPARTMENT B MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure Appeal from the Superior Court in Maricopa County Cause No. CV2012-053052 The Honorable Michael R. McVey, Judge AFFIRMED The Law Office of Scott J. McWilliams, LLC By: Scott J. McWilliams Attorneys for Plaintiff/Appellant Bellah & Associates, PLLC By: Richard Bellah Lisa Tibbedeaux Phoenix Glendale Attorneys for Defendants/Appellees G E M M I L L, Judge ¶1 Appellant Greater Glendale Finance, L.L.C. ( GGF ) appeals the superior court s dismissal of its special action complaint. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 In January 2010, GGF filed a breach of contract action in the Manistee Justice Court against James Ndegwa and Susan N. Muiga ( Ndegwa ) for breach of contract, alleging a deficiency remaining from an automobile financing contract. GGF alleged that Ndegwa became delinquent under the contract in July 2005. On June 14, 2011 the Manistee Justice Court held a trial on the matter and entered a judgment in favor of GGF. ¶3 On Ndegwa timely appealed the decision to superior court. January 17, 2012 Commissioner judgment of the lower court. Myra Harris reversed the Commissioner Harris concluded that GGF s claim was barred by the statute of limitations. 12, 2012 GGF filed a special action in this court. 1 On April This court declined to exercise special action jurisdiction in the matter. 1 GGF acknowledged in its petition for special action to this court that it did not have a further remedy by appeal. Arizona Revised Statutes § 22-375(B) (2013) provides: there shall be no appeal from the judgment of the superior court given in an action appealed from a justice of the peace or a police court. Similarly, Rule 14(b), Superior Court Rules of Civil Appellate Procedure, provides: No further appeal may be taken from a 2 ¶4 GGF subsequently filed a Complaint for Special Action in superior court on May 14, 2012. Commissioner Harris erred in GGF argued principally that applying a de review the decision of the justice court. filed a motion to dismiss GGF s novo to Commissioner Harris complaint, seeking an improper horizontal appeal. 2 standard arguing GGF was Ndegwa, the real party in interest, filed a motion to join Commissioner Harris motion to dismiss. Superior Court Judge Michael motion dismissing GGF s special action. ruling. We have jurisdiction McVey granted the GGF timely appeals this pursuant to Arizona Revised final decision or order of the superior court under these rules, except where the action involves the validity of a tax, impost, assessment, toll, statute or municipal ordinance. 2 Neither party challenged Commissioner Harris standing to file a responsive pleading, and thus the propriety of her appearance in the special action proceeding is not before us. In most special actions, a judicial officer is named as a mere formality and the officer has no valid reason to respond to the special action. See Ariz. R.P. Spec. Act. 2(a); Riley, Hoggatt & Suagee, P.C. v. English, 177 Ariz. 10, 13-14, 864 P.2d 1042, 1045-46 (1993). In some circumstances, however, a judicial officer may appropriately respond. In Hurles v. Superior Court, 174 Ariz. 331, 333, 849 P.2d 1, 3 (App. 1993), we held that: [I]t is proper for a judge named as a respondent in a special action to file a responsive pleading if the purpose of the response is to explain or defend an administrative practice, policy, or local rule, but that it is improper for a judge to respond merely to advocate the correctness of an individual ruling in a single case. 3 Statutes ( A.R.S. ) § 12-121.21(A)(1) (2003) and Ariz. R.P. Spec. Act. 8(a). DISCUSSION ¶5 The only issue on appeal is whether the superior court erred in dismissing GGF s special action complaint. questions of law de novo. § 6, 147 P.3d 1047, We review In re Brittany Y., 214 Ariz. 31, 32, 1048 (App. 2006). Subject matter jurisdiction is a question of law that is reviewed de novo. State v. Dixon, ___ Ariz. ___, ___, § 3, 294 P.3d 157, 158 (App. 2013). ¶6 We conclude that the superior court did not abuse its discretion in dismissing GGF s complaint because the superior court does not have jurisdiction to entertain special actions challenging other superior court rulings. ¶7 The Arizona Constitution and the Arizona Revised Statutes limit the appellate jurisdiction of the superior court. See Ariz. Const. art. 6, § 16 ( The superior court shall have appellate jurisdiction in cases arising in justice and other courts inferior to the superior court as may be provided by law. ); A.R.S. § 12-124(A) (2003) ( The superior court shall have appellate jurisdiction in all actions appealed from justices of the peace, inferior courts, boards and officers . . . . ); A.R.S. § 12-124(B) ( The superior court may issue writs of certiorari to inferior courts, boards or officers to compel a 4 return of their proceedings, examine or try such proceedings and give any judgment or make any order necessary in furtherance of justice. ). superior Arizona court to law rule does on not a grant petition jurisdiction for to special the action challenging a ruling from another superior court judge. See Green v. Thompson, 17 Ariz. App. 587, 591, 499 P.2d 715, 719 (1972). A special action filed in superior court is only proper if the complaint challenges the ruling of an inferior court. See Dunlap v. Superior Court, 169 Ariz. 82, 86, 817 P.2d 27, 31 (App. 1991) (holding superior court may review a special action challenging a ruling from a magistrate, an inferior officer). ¶8 In Green, we addressed whether a superior court judge could review a court commissioner's ruling via a special action petition. 17 Ariz. App. at 588, 499 P.2d at 716. concluded that the authority of a equivalent to a superior court judge. court First, we commissioner is Id. at 590, 499 P.2d at 718; Smoole v. Maricopa Cnty., 177 Ariz. 185, 186, 866 P.2d 167, 168 (Tax Ct. 1993) (confirming a judge pro tem has all the powers of a regularly elected judge ). Next, we reviewed the Arizona law, finding that there is no indication of an intent to give the superior court appellate jurisdiction over its own commissioners. Because the Green, 17 Ariz. App. at 591, 499 P.2d at 719. superior court lacks appellate jurisdiction over superior court judgments, we concluded that power should not be 5 created through the use of special action proceedings. Id. We also noted that [i]f facts justifying and requiring special action relief from the acts of a court commissioner occur, that relief can be obtained from this Court. ¶9 the Id. These principles from Green and Dunlap make clear that superior special court actions rulings. does arising not have from a jurisdiction superior court to entertain commissioner s In this case, GGF s special action complaint requests that the superior court review a final decision from a court commissioner. Arizona law does not authorize the superior court to exercise jurisdiction in such matters. GGF s special action is an unauthorized attempt to seek appellate review in superior court of a final commissioner. The decision superior entered court did by a superior not err in court dismissing GGF s special action complaint. CONCLUSION ¶10 court Because a special action cannot be brought in superior to challenge commissioner, the a ruling superior of court a superior correctly court judge dismissed or this special action. ¶11 Ndegwa requests costs and attorneys fees on appeal. Regarding fees, Arizona Rule of Civil Appellate Procedure ( ARCAP ) 21(c)(1) provides that all claims for attorneys fees must specifically state the statute, 6 rule, decisional law, contract, or other provision authorizing an award of attorneys fees. Ndegwa does not identify any substantive basis for an award of fees and we deny the request. We will, however, award Ndegwa their taxable costs on appeal upon their compliance with ARCAP 21. /s/ _________________________________ JOHN C. GEMMILL, Judge CONCURRING: /s/ _______________________________________ RANDALL M. HOWE, Acting Presiding Judge /s/ _________________________________ LAWRENCE F. WINTHROP, Judge 7

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