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Canales v. Plante

Court of Appeals of Arizona, First Division, Department A

October 8, 2013

MARISOL A. CANALES, Petitioner,
v.
THE HONORABLE JOHN PAUL PLANTE, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of YUMA, Respondent Judge, DAVID R. CANALES, Real Party in Interest.

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Yuma County Superior Court No. S1400DO200801189

DECISION ORDER

PETER B. SWANN, Presiding Judge

This special action was considered by Presiding Judge Peter B. Swann and Judges Kent E. Cattani and Diane M. Johnsen during a regularly scheduled conference held on August 6, 2013. After consideration, and for the reasons that follow,

IT IS ORDERED that the Court of Appeals, in the exercise of its discretion, accepts jurisdiction in this special action and grants relief.

We are required to decide whether the superior court abused its discretion by denying the petitioner's notice of change of judge under Ariz. R. Civ. P. 42(f)(1). We hold that under the literal terms of Rule 42(f)(1), the petitioner did not waive her right to notice the currently assigned judge because the judge's previous involvement in the case was limited to ruling on an ex parte application at a time before the judge was permanently assigned to the case.

The relevant procedural history is as follows. In December 2009, in Yuma County Superior Court Case No. S1400DO-2008-01189, Commissioner Stocking-Tate entered a decree dissolving the marriage of the petitioner ("Mother") and the real party in interest ("Father"). In August 2010, Mother applied for and obtained an order of protection against Father under the existing case number. The judge who granted the ex parte application was Judge Plante.

In the following years, a series of administrative orders regarding the superior court's case management system resulted in several reassignments of Case No. S1400DO-2008-01189. The case was reassigned from Commissioner Stocking-Tate to Judge Kenworthy, then from Judge Kenworthy to Judge Reeves, and finally from Judge Reeves to Judge Plante starting January 1, 2013. After Judge Plante was assigned, Father filed an ex parte application for temporary restraining orders that would grant him temporary custody of the parties' children. Judge Pro Tem Aguirre granted Father's motion and set the matter for a hearing before Judge Plante. The next day, Mother filed an ex parte motion requesting that the temporary restraining orders be quashed. Judge Pro Tem Aguirre granted relief to Mother, ordered the children returned to Mother's custody, and reset the scheduled hearing.

Before the hearing date, Mother sought reassignment of the case from Judge Plante by filing a notice of change of judge as a matter of right. Judge Plante denied Mother's notice, holding that she had waived her right to notice him because of his previous involvement in the case. Mother then moved for reconsideration and the motion was denied. She then brought this special action and requested a stay, which we granted. We accept jurisdiction because special action provides the only avenue for relief from the denial of a notice of change of judge, and because the superior court's ruling was plainly erroneous. See Ariz. R.P. Spec. Act. 1(a); Taliaferro v. Taliaferro, 186 Ariz. 221, 223-24, 921 P.2d 21, 23-24 (1996); Amos v. Bowen, 143 Ariz. 324, 327, 693 P.2d 979, 982 (App. 1984).

Rule 42(f) governs notices and requests for change of judge in family court cases and in protective order proceedings. ARFLP 6; ARPOP 1(A)(2). Under Rule 42(f)(1)(A), "[i]n any action pending in superior court, except an action pending in the Arizona Tax Court, each side is entitled as a matter of right to a change of one judge and of one court commissioner." But the right can be waived. Rule 42(f)(1)(D) provides:

After a judge is assigned to preside at trial or is otherwise permanently assigned to the action, a party waives the right to change of that judge as a matter of right when:
(i) the party agrees to the assignment; or (ii) after notice to the parties
(aa) the judge rules on any contested issue; or
(bb)the judge grants or denies a motion to dispose of one or more claims or ...

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