Folkestad v. Hon herrod/erickson

• Court: Court of Appeals of Arizona
• Decided: June 19, 2014
• Docket: 1 CA-SA 14-0105
• Status: Unpublished

Opinion

NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE ARIZONA COURT OF APPEALS DIVISION ONE

BRADLEY J. FOLKESTAD, M.D. and LISA FOLKESTAD, husband and wife; BRADLEY J. FOLKESTAD, M.D., L.T.D., an Arizona professional corporation, Petitioners,

v.

THE HONORABLE MICHAEL J. HERROD, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge,

MARVIN L. ERICKSON, M.D., an individual; DAMIAN J. BASS, M.D., an individual; DANIEL H. HU, M.D., an individual, Real Parties in Interest.

No. 1 CA-SA 14-0105 FILED 06-19-2014

Appeal from the Superior Court in Maricopa County No. CV2008-026970 The Honorable Michael J. Herrod, Judge

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Gillespie Shields & Durrant, Phoenix By Dan M. Durrant Counsel for Petitioner Beus Gilbert PLLC, Phoenix By Leo R. Beus, Thomas A. Connelly, Sarah S. Letzkus Counsel for Real Parties in Interest

DECISION ORDER

Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Kent E. Cattani joined.

N O R R I S, Judge:

¶1 This special action arises out of an order entered by the superior court setting this matter for trial to the court with an advisory jury. The court, Presiding Judge Patricia K. Norris, and Judges Samuel A. Thumma and Kent E. Cattani, participating, has considered the parties written submissions. Because an order denying or granting a jury trial is not separately appealable, see Ariz. Rev. Stat. § 12-2101 (Supp. 2013), a petition for special action is an appropriate method of seeking review. Hoyle v. Superior Court, 161 Ariz. 224, 226, 778 P.2d 259, 261 (App. 1989). Accordingly, we accept jurisdiction but deny relief.

¶2 Even if the court assumes the parties agreed to waive their right to request a jury trial, Arizona Rule of Civil Procedure 39(m) authorizes a superior court in an action not triable of right by a jury to, on its own initiative, try any issue with an advisory jury. Thus, the superior court did not abuse its discretion in setting this matter for trial with an advisory jury. Cf. Ringling Bros. & Barnum & Bailey Combined Shows, Inc. v. Superior Court, 140 Ariz. 38, 42, 680 P.2d 174, 178 (App. 1984) (superior court has discretion to submit jurisdictional issue to advisory jury).

:gsh