Patricia DUNN, By and Through her Guardian and conservator, Daniel DUNN; Daniel Dunn, individually; Raymond S. Elliott, M.D.; Gynecology & Obstetrics of Mesa, Ltd., Petitioners, v. SUPERIOR COURT OF the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Frederick J. Martone, a judge thereof, Respondent Judge, SAMARITAN HEALTH SERVICE, dba Desert Samaritan Hospital & Health Center; and Anca Maras, Real Parties in Interest.
No. 1 CA-SA 88-275.
Court of Appeals of Arizona, Division 1, Department A.
April 20, 1989.
772 P.2d 1164
Plaintiffs acknowledge that a lawyer‘s admissions during trial may generally be used against the client. State v. Adams, 1 Ariz.App. 153, 155, 400 P.2d 360, 363 (1965). They assert, however, that the statements in question were merely cumulative because the City cross-examined the Copelands at Trial 2 about their own statements at Trial 1.
Plaintiffs are correct that “it is not prejudicial error to refuse to permit [the introduction of evidence] ... where the whole subject has been fully developed by other evidence.” Daru v. Martin, 89 Ariz. 373, 384, 363 P.2d 61, 69 (1961). Defendants, however, dispute plaintiffs’ claim that this evidence would have been cumulative and unnecessary. To the contrary, the defendants assert that the Copelands did not make similar statements in Trial 1, and that such impeachment was only available through the statements of Mr. Allen.
We are unable to determine whether Mr. Allen‘s statements were rendered cumulative by the testimony of the Copelands, as defendants have failed to provide this court with a transcript of that testimony. If the record does not include the relevant transcript, the court must “assume that the evidence supports the trial judge‘s determinations.” A.D.R. Development Co. v. Greater Arizona Sav. and Loan Ass‘n, 15 Ariz.App. 266, 267, 488 P.2d 471, 472 (1971). Here, defendants have furnished only two pages from Mr. Allen‘s closing argument in Trial 1 and a brief excerpt from the transcript of the present trial. In the excerpt of the present trial, the court explained its refusal to admit the statements as follows:
I ... think it brings in extraneous issues as we get down to it. What we get down to is this jury not hearing the evidence that that jury received in front of it when they heard the statements. So we get into a lot of explanation of what these various statements meant. In the interest of economy, I‘m just not going to permit it.
The objection to your questioning any witnesses about Mr. Allen‘s statement is sustained.
Having considered the limited trial transcript provided, we find nothing to persuade us the trial court abused its discretion by this ruling.
4. Conclusion:
For the reasons set forth in this opinion the judgment of the trial court is affirmed.
KLEINSCHMIDT, P.J., and GRANT, J., concur.
Lewis and Roca by John P. Frank, Robert J. Tolman, Foster Robberson, and Roger W. Kaufman, Phoenix, for real party in interest, Samaritan Health Service.
Snell & Wilmer by Lonnie J. Williams, Jr., Stephen M. Hopkins and Patrick G. Byrne, Phoenix, for real party in interest, Anca Maras, M.D.
OPINION
JACOBSON, Judge.
In this special action, petitioners seek review of an order entered by the civil presiding judge of the superior court dishonoring their notice of change of judge as untimely, and refusing to reassign their case for trial to the stipulated judge, as required by
Background
Petitioners are plaintiffs, and real parties in interest are defendants, in the underlying personal injury suit in superior court. Trial in this matter had been set for January 9, 1989, before the Honorable Joseph D. Howe. The parties agree that, at a status conference on November 3, 1988, they discussed with Judge Howe the possibility of utilizing a settlement conference to dispose of this case. Judge Howe advised counsel that he could not act as both trial judge and settlement judge. Judge Howe asked if any party had a notice of change of judge remaining; when plaintiffs’ counsel indicated that he did, Judge Howe indicated that he would honor such a request. Judge Howe memorialized this conversation in his minute entry as follows: “He [plaintiffs’ counsel] asks if I am serious about honoring a notice of change of judge; I say yes, unless there is objection, in which case the matter comes back to me for decision, and if there is waiver the notice will be of no avail.”
A week later, on November 10, 1988, exactly sixty days prior to the scheduled trial date, the court and counsel met to further discuss the possibility of a settlement conference. Judge Howe‘s minute
Court and Counsel meet, intending informally to discuss settlement formats. The following are considered:
- A preliminary position statement by each party to be submitted to the others.
- Conference attended by all parties personally ... to discuss settlement possibilities with this judge.
- Same as # 2, except to a person other than the judge of this division.
- A conference in which each party sets forth confidentially, to this judge or to another person, its position of maximum extension toward settlement. This format might include:
....
d. understanding that if the conference includes this judge, he may disqualify from hearing trial, with the possible concomitant resulting loss of the Jan. 9, 1989, trial date; alternatively, the parties might agree in advance whether this judge should disqualify [himself].
On November 17, 1988, the parties stipulated that Judge Howe would be the settlement judge, and that in the event settlement failed Judge Nastro would be assigned as the trial judge. Judge Howe apparently rejected this stipulation.
The court and counsel met next on November 23, 1988; the parties agree that, at that time, forty-seven days before trial, Judge Howe again said that he would honor a change of judge if one were filed.
On December 1, 1988, forty days prior to trial, plaintiffs’ counsel filed a notice of change of judge. That same day, the parties filed the following stipulation:
The parties to this action, pursuant to
Rule 42(f) of the Arizona Rules of Civil Procedure , hereby stipulate that upon the plaintiffs’ exercise of their right to a change of judge, the action shall be re-assigned and transferred to the Honorable Daniel E. Nastro, who has advised all counsel that he is willing to have this action assigned to him, pursuant toRule 42(f)(1)(F) of the Arizona Rules of Civil Procedure .
Judge Howe, on December 1, 1988, acknowledged by minute entry that a notice of change of judge had been filed by plaintiffs, and ordered the case transferred to the civil presiding judge for reassignment to another division.
The following day, the Honorable Frederick J. Martone, who was then civil presiding judge of the Maricopa County Superior Court, entered his order dishonoring plaintiffs’ notice of change of judge as untimely, and transferred the case back to Judge Howe for trial.
Petitioners filed this special action, seeking relief from Judge Martone‘s refusal to honor both their notice of change of judge and their stipulation to reassign the case to Judge Nastro.
Appearance by Respondent Judge
Real parties in interest Samaritan Health Service and Anca Maras, M.D., have joined in petitioners’ contentions that Judge Martone exceeded his authority as civil presiding judge by refusing to honor plaintiffs’ notice of change of judge and the parties’ stipulation to an assigned judge. The adverse parties in the underlying action therefore are in agreement that special action jurisdiction is appropriate and that relief should be granted. The only opposition to the petition is a letter from Judge Martone, mailed to this court on January 6, 1989, seven days beyond the allowable response time. Petitioners have requested in their reply that Judge Martone‘s response be stricken.
The Arizona Supreme Court has held that a respondent judge has the right to appear and defend in a special action in which he is named. Fenton v. Howard, 118 Ariz. 119, 575 P.2d 318 (1978). This precedent has been criticized as creating the potential of allowing “the impartial dispenser of justice” to take an adversarial role in the action, when he should have no interest in the outcome of the litigation. State ex rel. Dean v. City Court, 123 Ariz. 189, 191, 598 P.2d 1008, 1010 (App.1979).
Notice of Change of Judge
1. Change as a matter of right.
A. Nature of proceedings. In any action pending in superior court, each side is entitled as a matter of right to a change of one judge.... A party wishing to exercise his right to change of judge shall file a “Notice of Change of Judge.”
...
C. Time. Failure to file a timely notice precludes change of judge as a matter of right. A notice is timely filed if filed sixty (60) or more days before the date set for trial....
In this case, Judge Howe honored petitioners’ notice of change of judge by issuing the following order on December 1, 1988:
A Notice of Change of Judge having been filed by Plaintiff,
IT IS ORDERED transferring the above-entitled cause to the Civil Presiding Judge for reassignment to another Division.
For whatever reasons, which may have included the fact that he had previously assured the parties less than sixty days prior to trial that he would honor such a notice, Judge Howe did not dishonor the notice as untimely, nor was the notice challenged by any of the opposing parties as untimely. Rather, the civil presiding judge apparently decided to raise the timeliness issue on his own motion, as reflected in Judge Martone‘s order of December 2, 1988:
The court has before it Judge Howe‘s minute order of December 1, 1988 transferring this action to us for reassignment. However, a review of the file indicates that plaintiff‘s notice of change of judge was submitted on December 1, 1988. The trial in this action is set for January 9, 1989. Under
Petitioners argue that the civil presiding judge exceeded his authority by dishonoring the notice, thereby in effect over
Under
In our opinion, a civil presiding judge does not obtain additional judicial authority to overrule a trial judge‘s decision by nature of his administrative powers. See Fraternal Order of Police, Lodge 2 v. Superior Court, 122 Ariz. 563, 565, 596 P.2d 701, 703 (1979) (superior court judge has no jurisdiction to review or change previous ruling of another superior court judge). The presiding judge is “responsible for the day-to-day administrative operation of the court.” Rule 1.3, Local Rules, Maricopa County Superior Court. This responsibility includes the authority to make permanent assignment of a case to one judge. Rule VII, Uniform Rules of Practice for the Superior Court. However, the assignment authority of the presiding judge does not include the power to exercise a “horizontal appeal” and overrule a fellow judge on decisions of substance such as the timeliness of a change of judge. See
At this point it is appropriate to comment on the position taken by the dissent both as to the facts and the law. First, the dissent appears to glean from the record that the motive of the parties in seeking a change of judge in this matter was simply a subterfuge to obtain a continuance of a trial date for which they were not prepared. While admittedly, abuses of
Second, the dissent treats the question of whether the notice of the change of judge was timely as simply a matter of counting days, a ministerial calendaring function. As previously pointed out, Judge Howe could have properly determined that his previous order had lulled counsel into believing that a notice of change of judge would be honored even though technically untimely. This is exactly how Judge Howe properly resolved this factual issue, by accepting the change of judge. See Hendrickson v. Superior Court, supra, (notice may be timely even though filed after the expiration of time to file has expired, if facts giving rise to the notice were acquired after expiration of normal time period.) The dissent‘s assertion that Judge Howe lacks judicial authority to make this determination is without support. Thus, one person‘s “ministerial calendaring function” becomes another person‘s “horizontal appeal.”
This brings us to the main point of divergence between the majority and dissent. The dissent takes the position that, even in the absence of additional facts, one superior court judge may overrule another superior court judge on the same issue in the same case. In doing so it relies upon lan
As to the Hendrickson language, it is clear that “judge presiding” does not refer to the presiding judge of a multi-judge county but to the judge presiding over the matter in the first instance. This is so, for the order being reviewed in Hendrickson was from Cochise County which in 1958 had only one judge.
Whatever may have been the force of the court of appeals decisions, the latest pronouncement on this subject is from the Arizona Supreme Court in Fraternal Order of Police v. Superior Court, 122 Ariz. 563, 596 P.2d 701 (1979) which stated:
The petitioner contends that the respondent judge had no jurisdiction to issue an injunction forbidding the holding of an election for determination of an employee bargaining representative. Any action taken by the respondent judge would be in conflict with the previous rulings of Judge LaPrade. We agree.
The respondent judge, in effect, was acting as a reviewing court of a judge on the same court. He had no jurisdiction to review or change the judgment of a judge with identical jurisdiction.
Id. at 565, 596 P.2d 701 (emphasis added).
We therefore hold that Judge Martone abused his discretion and acted in excess of his authority in dishonoring the notice of change of judge as untimely filed. In his administrative capacity as presiding judge, he was required to reassign the case upon transfer from the trial judge. We therefore vacate his order reassigning the case to Judge Howe.
Stipulation to Assigned Judge
Petitioners next argue that Judge Martone also exceeded his authority in refusing to assign the case to Judge Nastro as the stipulated trial judge as required by
Assignment of action. At the time of the filing of a notice of change of judge, the parties shall inform the court in writing if they have agreed upon a judge who is available and is willing to have the action assigned to him. An agreement of all parties upon such judge shall be honored and shall preclude further changes of judge as a matter of right unless the judge agreed upon becomes unavailable....
Our supreme court has held that the “clear and unambiguous” language of this rule is mandatory, and that once such a stipulation has been filed, a presiding judge “has no discretion but to honor it.” City of Tucson v. Birdsall, 109 Ariz. 581, 582, 514 P.2d 714, 715 (1973).
Because the presiding judge had no authority to dishonor the notice of change of judge, his administrative authority upon receiving the stipulation was limited to reassigning the case to Judge Nastro in accordance with the stipulation. His reassignment of the case to Judge Howe was an abuse of discretion for failure to honor the stipulation.
In City of Tucson v. Birdsall, the supreme court remedied a similar problem by ordering the presiding judge to reassign the matter to the stipulated trial judge pursuant to
We have before us several affidavits of counsel, attesting that Judge Nastro initially agreed to accept the matter for trial prior to the stipulation of all counsel, and has reconfirmed his willingness to act as trial judge even after the filing of this special action. On the other hand, Judge
If Judge Howe disqualifies himself, Judge Schneider [the current presiding judge] would then reassign the action to some other judge in the Civil Department on a random basis. The members of the Civil Department have been encouraged not to indicate their ability and willingness to accept a case on a notice within the meaning of
Rule 42(f)(1)(F), Ariz.R.Civ.P. , in order to discourage forum shopping.
The “encouragement” referred to by Judge Martone is obviously intended to circumvent the workings of a mandatory procedural rule. However, even in the absence of such a policy we recognize that a factual conflict exists on the record presented to us. We cannot determine, on this record, if Judge Nastro actually indicated that he “is available and is willing to have the action assigned to him,” in accordance with
If Judge Nastro indicates that the assertions of his availability and willingness contained in the stipulation are true, then the presiding judge has no discretion but to assign the case to Judge Nastro. If Judge Nastro indicates that he is not either available or willing to have the action assigned to him, the presiding judge must assign the case according to the provisions of
If a judge to whom an action has been assigned by agreement later becomes unavailable because of a change of calendar assignment, death, illness or other legal incapacity, the parties shall be restored to their several positions and rights under this rule as they existed immediately before the assignment of the action to such judge.
As a final matter, we note that our disposition here may affect the internal policies and administrative practices now utilized in the Maricopa County Superior Court. We recognize, as did the supreme court in City of Tucson v. Birdsall and the dissent here, the practical problems in docketing and budgeting that may be inherent in allowing parties to stipulate to a desired trial judge, especially in complex litigation. However, we are, as was the supreme court, “constrained to hold that the Rule is clear and unambiguous.” Birdsall, 109 Ariz. at 582, 514 P.2d at 714. If the rule is unworkable and plays havoc with the superior court‘s administrative system, the remedy is to seek a rule change, not to develop administrative practices and policies which circumvent the rule.
Based on the foregoing, we grant special action relief and vacate the presiding judge‘s order reassigning the case to Judge Howe. We remand this matter to superior court for further proceedings consistent with this opinion. The stay previously entered in this matter is dissolved.
BROOKS, J., concurs.
GERBER, Judge, dissenting.
I dissent for reasons that follow.
This case presents unusual circumstances in a number of respects. In the first place, all adversaries in this special action appear before this court in total agreement, even to the point of echoing each other‘s off-the-record recollections of unrecorded communications with various judges. This court is thus deprived of any opposing authority or argument. Although the stated dispute is about
These same adversaries argue in concert that Judge Howe had informally accepted an oral notice of change of judge as early as the second week in November, 1988. The record does not harmonize with this chorus. Judge Howe would not have honored the December 1 change of judge notice if he had accepted an earlier one. There is no showing of any compliance with
These adversaries all admit that the December 1 change of judge notice was untimely because filed less than 60 days prior to trial as required by
Even if one assumes that Judge Howe created the impression he would honor an untimely notice, the fact remains that he lacked authority to honor an untimely notice. Honoring a “technically untimely” notice does not transform that notice into a timely one. Hendrickson only permits a late notice to be considered timely when it is based on facts discovered after the expiration of the time period. 85 Ariz. at 12, 330 P.2d at 508-09. In the present case, counsel did not acquire any facts giving rise to the notice after the expiration of the notice period; to the contrary, the discussion on November 3 and November 10, 1988 about honoring a notice occurred before expiration of the time period. Counsel simply let the time expire, and with it, Judge Howe‘s authority to grant the notice. In Fendler v. Phoenix Newspapers, Inc., 130 Ariz. 475, 636 P.2d 1257 (App.1981), this court rejected an assertion that a trial court has authority to honor an informal, untimely notice:
... we address appellant‘s argument that the trial judge should have recused herself “when asked to do so.” The record reflects no notice for change of judge either as a matter of right pursuant to
Rule 42(f)(1) or for cause pursuant toRule 42(f)(2) , Arizona Rules of Civil Procedure. The right to apply for a change of judge for cause is waived if not timely filed.
Id. at 481, 636 P.2d at 1263 (emphasis added).
Central to the concurring arguments of counsel is the assertion that Judge Martone should not have “overruled” Judge Howe‘s honoring of the December 1 notice. Again, this court is not presented with any contrary authority. I dissent here because I do not see Judge Martone‘s minute entry order transferring the case back to Judge Howe as an “overruling” of Judge Howe but simply as a reassignment back to Judge Howe after a clearly untimely and thus ineffective notice. In Rules 2.7 and 3.1(b) of the Local Rules of Maricopa County, I find authority for a presiding judge to make such ministerial case assignments and reassignments as necessary for efficient case processing. True, Guberman does authorize the noticed judge to determine the validity of the notice; Guberman, however, also says, in a portion not quoted by concurring counsel:
We find that
Rule 42(f) is not clear in this regard.Rule 42(f)(3) makes it clear that the effort to disqualify a judge to whom a case has been assigned must be by a timely application and if the application is not timely, or if there has been a waiver, then that judge has not been disqualified.
19 Ariz.App. at 593, 509 P.2d at 724 (emphasis added). Thus, while Guberman approved referring the matter back to the noticed judge to determine the validity of the notice, there is nothing “clear” in that opinion or in
Presiding judges appear to have such supervisory authority.
Whenever two or more parties on a side have adverse or hostile interests, the presiding judge may allow additional changes of judges as a matter of right....
(emphasis added).
The arguments of these concurring adversaries overlook language in analogous situations which supports the civil presiding judge‘s authority to “preside.” For example, in Hendrickson, the court makes the following observation about determination of timeliness of an affidavit of bias and prejudice:
... the legal sufficiency and timeliness of an affidavit must be determined by the judge presiding or one to whom the matter may be assigned for that purpose.
85 Ariz. at 13, 330 P.2d at 509 (emphasis added). The civil presiding judge is at least implicitly one to whom the matter of counting days is assigned.
A presiding judge has analogous authority in ruling upon notices of change of judge on the basis of bias and prejudice and on transferring “last day” criminal matters. Similarly, the court administrator‘s office regularly issues calendaring orders and inactive calendar dismissals which are frequently altered by one or more superior court judges. A presiding judge‘s review of notices of change of judge is a ministerial calendaring function oriented toward efficient case management and docket control. To deny such authority in the face of a patently untimely notice leads to the result, among others, that a noticed judge has unfettered authority to indulge invalid notices to reduce caseload—hardly a procedure insuring judicial accountability. Admittedly, there is no evidence of any such improper motive in this case, but it has surfaced elsewhere.
Rather than an “appellate” decision overruling Judge Howe on a matter of “substance,” Judge Martone‘s minute entry of December 2, 1988 appears simply as a reassignment back to Judge Howe after a patently untimely and thus invalid notice. No case explicitly undermines this procedure. In Fraternal Order, cited by the majority, the Supreme Court vacated a court order purporting to enjoin an employee relations board from conducting a representation
Other cases acknowledge the authority of a superior court judge even to “overrule” decisions by judicial colleagues. I do not advocate such “overruling.” My point is that if Arizona jurisprudence allows occasional “overruling” on substantive points, then a fortiori it allows correction of counting errors. For example, Williams v. Garrett, 4 Ariz. App. 7, 9, 417 P.2d 378, 380 (1966) states:
Decisions generally acknowledge and we are in agreement that “... a trial judge has ‘power’ to vacate, modify, contravene, or depart from the ruling or order of another in the same case, whatever may be the consequences of his so doing.”
There the court adds pointedly that the function of a court of appeals is to “not interfere ... unless there has been an abuse of discretion,” which I submit can hardly lie in dishonoring a notice invalid on its face. Id. In addition, State ex rel. Herman v. Hague, 10 Ariz.App. 404, 459 P.2d 321 (1969) upheld a trial judge overruling another trial judge‘s invalid order on trial severance, indicating that such overruling was appropriate when the prior ruling was manifestly invalid. Such approximates the situation here, for the December 1 notice was manifestly untimely. If such substantive “overruling” is permitted, a mere counting error ought to be even more subject to administrative correction.
I concur with the majority regarding the re-assignment of the case if the notice must be honored. The internal practice in Maricopa County Superior Court has been to discourage judges from agreeing to take cases on the basis of stipulation of counsel because it encourages forum shopping and shifts caseloads beyond the control of the presiding judge and the court administrator. Birdsall and the explicit language of
Kevin RASHLEY, Plaintiff-Appellant, v. Dan WILCOX and Jane Doe Wilcox, Mike Eustice and Jane Doe Eustice, dba Verde Valley Development, Defendants-Appellees.
No. 1 CA-CIV 9792.
Court of Appeals of Arizona, Division 1, Department D.
April 27, 1989.
772 P.2d 1174
Ernesto R. Castro, Cottonwood, and Jerry L. Smith, Flagstaff, for plaintiff-appellant.
James A. Simmons, Prescott, for defendants-appellees.
OPINION
FIDEL, Presiding Judge.
Defendants Dan Wilcox and Mike Eustice do business as Verde Valley Development (VVD). In 1985, acting as its own general contractor and building on land that it owned, VVD constructed the Mountain View Villa Apartments in Yavapai County. It hired various subcontractors and directly employed day laborers for cleanup work. Rick Florida, doing business as Florida Painting, was hired as the painting subcontractor. Plaintiff was employed by Florida as a painter‘s helper. While stepping on one of several loose boards laid across second-story floor joists, plaintiff fell and was injured. The record does not show who placed the loose planks across the second-floor joists. The evidence indicates, however, that they were used by workers of various subcontractors as a makeshift scaffolding and walkway. Defendants, who were on-site supervisors, knew how workers used the planks.