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Harvey v. Brain

Court of Appeals of Arizona, First Division

December 12, 2013

DR. BRIEN HARVEY and JENANN ISMAEL, husband and wife; DR. BRYAN SHANAHAN, an individual; and DR. BRIAN WILSON and JACQUELYN WILSON, husband and wife, Petitioners,
v.
THE HONORABLE MARK H. BRAIN, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, DR. ROBERT G. GRIEGO, an individual; DR. MICHAEL J. RADCLIFFE, an individual; DR. PHILIP MOOBERRY, an individual; DR. RICHARD SNOW, an individual; DR. ROY DANIELS, an individual; TENADISCHLER, an individual; and TIMOTHY J. STEPHENSON, an individual, Real Parties in Interest, THE ARIZONA DENTAL ASSOCIATION, an Arizona nonprofit corporation, Intervenor.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Petition for Special Action from the Superior Court in Maricopa County No. CV 2010-032594 The Honorable Mark H. Brain, Judge

Smith LC, Scottsdale By Richard R. Thomas, Stephen C. Biggs Counsel for Petitioners

Stinson Morrison Hecker LLP, Phoenix By Michael C. Manning, Larry J. Wulkan Counsel for Real Parties in Interest

Jaburg & Wilk, P.C., Phoenix By Kraig J. Marton, David N. Farren Counsel for Intervenor

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

MEMORANDUM DECISION

MAURICE PORTLEY, PRESIDING JUDGE.

¶1 This special action asks whether the superior court erred by staying trial court proceedings as to Petitioners, the remaining defendants to the underlying action, pending the resolution of the appeal between Plaintiffs and Defendant Arizona Dental Association ("AzDA"). For the reasons that follow, we exercise special action jurisdiction and grant relief to the extent Petitioners are seeking a ruling on their request for permission to file dispositive motions.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Real Parties in Interest/Plaintiffs Dr. Robert Griego, Dr. Michael Radcliffe, Dr. Philip Mooberry, Dr. Richard Snow, Dr. Roy Daniels, Tena Dischler, and Timothy Stephenson sued AzDA and Drs. Brien Harvey, Bryan Shanahan, and Brian Wilson (the "Individual Defendants" or "Petitioners") for defamation, false light, injurious falsehood, intentional interference with business relationships, breach of fiduciary duty and civil conspiracy for their alleged role in the 2010 Delta Dental of Arizona board of directors election that resulted in Plaintiffs being ousted from the board.[1] The superior court subsequently granted the motion for summary judgment filed by AzDA. The court signed and filed a judgment for AzDA and certified that it was a final judgment pursuant to Arizona Rule of Civil Procedure 54(b). Plaintiffs appealed the judgment. [2]

¶3 Plaintiffs filed a motion to stay the superior court proceedings as to Petitioners pending resolution of the appeal, but withdrew it to allow the parties to take some depositions. Plaintiffs also filed a motion for Rule 60(c) relief from judgment. We suspended Plaintiffs' appeal to allow the superior court to consider Plaintiffs' motion, which was denied. Plaintiffs then challenged the denial by filing a notice of appeal. Subsequently, Plaintiffs filed another request for stay of the superior court proceedings. Over the objection of Petitioners, the court granted the stay.

DISCUSSION

A. Jurisdiction

¶4 We have discretion to exercise special action jurisdiction when there is not an "equally plain, speedy, and adequate remedy by appeal." Ariz. R.P. Spec. Act. 1(a); Potter v. Vanderpool, 225 Ariz. 495, 498, ¶ 7, 240 P.3d 1257, 1260 (App. 2010) (finding jurisdiction proper to challenge interlocutory orders). Special action jurisdiction is appropriate when a court stays trial court proceedings pending resolution of an appeal because there is no other method to seek review of the order. Southwe ...


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