Clark v. Hon. brotherton/clark ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CINDI CLARK, Petitioner,
v.
THE HONORABLE WILLIAM L. BROTHERTON, JR., Judge of the
SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County
of MARICOPA, Respondent Judge,
NATHAN P. CLARK, Real Party in Interest.
No. 1 CA-SA 14-0251
FILED 1-22-2015
Petition for Special Action from the Superior Court in Maricopa County
No. FC2013-008060
The Honorable William L. Brotherton, Judge
RELIEF GRANTED
COUNSEL
Davis Miles McGuire Gardner, PLLC, Tempe
By Douglas C. Gardner
Counsel for Petitioner
Steven M. Ellsworth, PC, Mesa
By Steven M. Ellsworth
Counsel for Real Party in Interest
CLARK v. HON. BROTHERTON/CLARK
Decision of the Court
DECISION ORDER
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined.
C A T T A N I, Judge:
¶1 Cindi Clark seeks special action relief from the superior
court’s order denying her request for change of judge as a matter of right.
Because an order of this type may only be reviewed by special action and
not on direct appeal, see Taliaferro v. Taliaferro, 186 Ariz. 221, 223, 921 P.2d
21, 23 (1996), we previously accepted jurisdiction in an order issued
December 18, 2014. Real Party in Interest Nathan Clark did not file a
response to the petition.
¶2 The underlying case is a dissolution proceeding between
Cindi and Nathan Clark. In mid-2014, the case was set for trial on
September 15. Later, on July 1, Respondent Judge was assigned as trial
judge, 76 days before the then-set trial date. In mid-August, 28 days before
the then-set trial date, the parties stipulated to a continuance, which the
court granted. The order continued trial without setting a new trial date,
and set a status conference for October 27.
¶3 On October 14, before the trial had been reset, Cindi Clark
filed a notice seeking a change of judge as a matter of right. At the status
conference later in October, the court denied Clark’s request for a change of
judge and reset trial for February 3, 2015. This special action followed.
¶4 Under Arizona Rule of Civil Procedure 42(f)(1), “each side is
entitled as a matter of right to a change of one judge.” A notice of change
of judge generally must be filed at least 60 days before the date set for trial;
if a new judge is assigned within 60 days of trial, however, the notice must
be filed within 10 days of the new assignment. Ariz. R. Civ. P. 42(f)(1)(C).
Failure to timely file the notice precludes a peremptory change of judge. Id.
¶5 Here, the 10-day rule is inapplicable because Respondent
Judge was assigned more than 60 days before the September 15 trial date.
Additionally, when Clark filed her notice of change of judge in October, the
trial date had already been continued but had not yet been reset. Although
the notice was not filed prior to the original September trial date, it was
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CLARK v. HON. BROTHERTON/CLARK
Decision of the Court
timely as to the relevant, later trial setting for February 3, 2015. See Dudley
v. Superior Court, 123 Ariz. 80, 82, 597 P.2d 983, 985 (1979) (“We hold that
notice for change of judge is timely if filed twenty [now 60] or more days
prior to the actual trial for the reason that the purpose of the rule is to
provide sufficient time to obtain a new trial judge by the day set for trial if
the original trial judge is disqualified because of an application for change
of judge.”).
¶6 A party may also waive the right to a change of judge as a
matter of right by agreeing to the assignment or if, “after notice to the
parties the judge rules on any contested issue; or the judge grants or denies
a motion to dispose of one or more claims or defenses in the action; or the
judge holds a scheduled conference or contested hearing; or trial
commences.” Ariz. R. Civ. P. 42(f)(1)(D). None of these circumstances
apply here. There is no record that Clark agreed to the assignment, and
Respondent Judge addressed only uncontested matters—such as the
stipulated motion to continue—before Clark’s notice. Moreover, Clark filed
her notice almost two weeks before the October status conference.
¶7 Accordingly, because Clark’s notice was timely filed and
because she did not waive her right to a change of judge as a matter of right,
we grant relief and reverse the decision denying the notice of change of
judge. We deny, however, Clark’s request under A.R.S. § 25-324 for
attorney’s fees incurred in this special action. Given the unique
circumstances of this case, we also deny her request for costs.
:ama
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