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Masaryk v. Gama

Court of Appeals of Arizona, First Division

December 10, 2013

LINDA S. MASARYK, Petitioner,
v.
THE HONORABLE J. RICHARD GAMA, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, MENDELSOHN CONSTRUCTION, L.L.C., a limited liability company, Real Party in Interest

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Petition for Special Action from the Superior Court in Maricopa County CV2009-020422 The Honorable, J. Richard Gama Judge

Bluff & Associates, Phoenix By Guy W. Bluff, Bruce A. Smidt Counsel for Petitioner.

Mathew & Associates, Phoenix By Ivan K. Mathew Counsel for Real Party in Interest.

Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge Kent E. Cattani joined.

MEMORANDUM DECISION

John C. Gemmill, Judge

¶1 In this special action proceeding, we accept special action jurisdiction and grant relief in part, as explained herein.

BACKGROUND

¶2 This special action arises out of a contract dispute between Petitioner Linda S. Masaryk and Mendelsohn Construction ("Mendelsohn"). The contract concerns a home that Masaryk hired Mendelsohn to build for her. A sub-contractor initiated litigation and named both Masaryk and Mendelsohn as defendants. Subsequently, both Masaryk and Mendelsohn filed cross-claims against each other.

¶3 Eventually, the trial court granted Mendelsohn summary judgment on its statutory prompt payment claim against Masaryk, awarding over $650, 000 in principal, prejudgment interest, taxable and non-taxable costs, and attorneys' fees. Summary judgment on the claim was certified as final and appealable under Arizona Rule of Civil Procedure 54(b) ("Rule 54(b)"), and Masaryk's appeal of that judgment is pending in this court.

¶4 Meanwhile, the trial court held an evidentiary hearing to determine the amount required for the supersedeas bond that Masaryk must file in accordance with Arizona Rule of Civil Appellate Procedure ("ARCAP") 7 as she appeals the Rule 54(b) judgment against her. Masaryk testified at that hearing, and no other evidence was presented. After considering the evidence presented, the trial court set the supersedeas bond at the full amount of the judgment. Masaryk now brings this special action, presenting two issues: (1) whether the trial court erred by certifying the summary judgment award against her as final under Rule 54(b), and (2) whether the trial court erred by incorrectly applying ARCAP 7(a)(2) ("Rule 7(a)(2)") in setting the supersedeas bond in the amount of the full judgment.

JURISDICTION

¶5 Special action jurisdiction is proper when a party has no "equally plain, speedy, and adequate remedy by appeal." Ariz. R.P. Spec. Act. 1(a). Exercising special action jurisdiction is highly discretionary with the court in which the action is filed. State Compensation Fund of Arizona v. Fink, 224 Ariz. 611, 612, ¶ 4, 233 P.3d 1190, 1191 (App. 2010). Challenges to the setting of a supersedeas bond can be a circumstance where special action jurisdiction is appropriate. See Salt River Sand & Rock Co. v. Dunevant, 222 Ariz. 102, 105-06, ¶ 7, 213 P.3d 251, 254-55 (App. 2009); Bruce Church, Inc. ...


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