AZAPP Blog

Lips v. Scottsdale Healthcare Corp. ( 8/25/2009): Arizona Court of Appeals Division One Holds That Arizona Law Does Not Recognize an Independent Tort for Intentional or Negligent Spoliation of Evidence in a Medical Products Liability Case.

Surgeons implanted a prosthetic hip into Lips at a Scottsdale Healthcare facility.   A subsequent surgery was later required to remove and replace pieces of the prosthetic.  After the second surgery, a doctor examined the removed parts of the prosthetic and diagnosed a “failed prosthesis.”  Lips requested Scottsdale Healthcare to keep the removed portions of the prosthesis, but Scottsdale Healthcare lost or destroyed the material.  Lips brought suit against the manufacturer of the prosthetic hip and, in agreement with the manufacturer, filed a suit against Scottsdale Healthcare for spoliation of evidence.  The trial court dismissed the claim, finding that Arizona does not recognize an independent tort for spoliation and that any harm was speculative because Lips could use other evidence to prove her case against the manufacturer. 

The Court of Appeals affirmed.  First-party spoliation is spoliation that occurs between the parties of an action; a claim for third-party spoliation is made against a “stranger to the litigation.”  First, the Court held that Lips could not sustain a claim for intentional third-party spoliation.  The Court explained that Arizona had never recognized an independent tort for first- or third-party spoliation.  In addition, the Court reviewed cases from other states and concluded that Lips would not be able to prove a claim of intentional spoliation because Lips lacked evidence that Scottsdale Healthcare intended to disrupt or defeat the claim against the prosthetic manufacturer.  Second, the Court declined to recognize a cause of action for negligent – as opposed to intentional – spoliation, reasoning that it would not make sense to prohibit a claim for intentional spoliation but allow one for negligent spoliation.

Finally, Lips urged the Court to allow a standard negligence or prima facie tort claim to proceed, although she had not argued to the trial court that such a claim was stated in the complaint.  The Court held that Lips waived this argument by failing to assert it in the trial court.

Judge Thompson authored the opinion; Judges Portley and Swann concurred. 

Advanced Cardiac Specialists et al. v. Tri-City Cardiology et al (8/25/2009):  Arizona Court of Appeals Division One Holds that A.R.S. § 32-1451(A) Abrogates Common Law Immunity For Reports Involving Medical Malfeasance And Affirms Dismissal of Defamation Action Brought Against Physician Who Reported Other Physicians to the Arizona Medical Board

Dr. Kaplan filed a complaint to the Arizona Medical Board (AMB) alleging that Doctors Siegal and Garg engaged in unprofessional conduct.  In response to the complaint to the AMB, the respondent-doctors brought an action against Dr. Kaplan for, inter alia, defamation and false light invasion of privacy.  Dr. Kaplan moved for summary judgment, arguing that under A.R.S. § 32-1451(A), he could not be sued for matters reported to the AMB in good faith and that his complaint to the AMB was absolutely privileged under the common law.  The superior court granted the motion.

On de novo review, Division One affirmed.  The court noted that at common law “there [was] an absolute privilege for reports involving professional misconduct in quasi-judicial proceedings.”  A.R.S. § 32-1451(A) abrogated the common law privilege in the context of reports involving medical malfeasance.  The statute creates instead a qualified privilege: “Any person or entity that reports or provides information to the board in good faith is not subject to an action for civil damages . . . .” (emphasis added).  Rejecting one of the Plaintiffs’ arguments, the Court found that the phrase “any person” simply “could not be reduced to any clearer expression” and would include Dr. Kaplan.

Second, Division One found that none of the evidence supplied by Plaintiffs demonstrated that Dr. Kaplan did not make the report in good faith so as to lose the qualified privilege.  To meet this burden, Plaintiffs would have had to produce “clear and convincing evidence that Dr. Kaplan abused the privilege,” i.e. by proving publication with “actual malice’ or by demonstrating “excessive publication.”  Defendants did not produce such evidence; rather, their arguments were premised “on the notion that Dr. Kaplan was required to use reasonable care to investigate the substance of his statements before making them to the AMB.”  But this negligence standard, the court  noted, in inappropriate when a privilege applies. 

Finally, the Court found that the trial court did not err in denying Plaintiffs’ Rule 56(f) request for an additional deposition.  The deposition, while it could have pointed to “additional steps Dr. Kaplan could have taken to investigate the truth of [his statements to the AMB] . . . would not have demonstrated that he abused the privilege.”  Thus, it would not have produced evidence that would raise a “genuine issue of material fact.” 

Judge Swann authored the opinion, with Judge Orozco, Presiding Judge, and Judge Irvine concurring. 

Seidman v. Seidman (8/25/2009):  Arizona Court of Appeals Division One Holds That a Trial Court Must Hold an Evidentiary Hearing Before It Enters a Default Judgment as a Discovery Sanction.

Husband commenced a dissolution proceeding against Wife in 2006.  Wife failed to attend her deposition scheduled for September 13, 2006, and it was rescheduled for November 14.  On November 13, Wife’s counsel informed the court at an emergency hearing that Wife’s doctor signed a letter stating that she was unable to participate in her deposition for medical reasons.  The trial court refused to grant a continuance “absent a detailed, signed letter from her doctor, stating that [her] health is in imminent danger by appearing for the deposition.”  On November 14, Wife’s counsel provided Husband’s counsel a second doctor’s letter stating that Wife suffered from “depression and anxiety” and “may be at risk for her life if she is exposed to a stressful situation.”  On November 17, Husband filed a motion for sanctions for Wife’s failure to attend her deposition and sought a default judgment as a sanction, among other things.  On November 22, the court set the matter for a fifteen-minute “Return Hearing” for December 1, but Wife stipulated and requested that the hearing be vacated. Without holding an evidentiary hearing, the court entered a default judgment against Wife based on its understanding that Wife’s failure to attend her November 14 deposition “was not justified by medical or legal excuse,” Wife had not been forthcoming with her lawyer, and that a hearing was unnecessary because the discovery violation was the fault of Wife, not her lawyer.       

The Arizona Appeals Court reversed and remanded.  The Court first held that Wife did not waive her right to an evidentiary hearing when she stipulated and requested that the December 1 “Return Hearing” be vacated.  It explained that under the Rules of Family Law Procedure a return hearing is not an evidentiary hearing, and therefore Wife could not have waived her right to an evidentiary hearing because the trial court never scheduled one.

Addressing the merits, the Court held that the trial court erred by entering a default judgment against Wife without holding an evidentiary hearing, violating her due process rights.  Citing Zimmerman v. Shakman, 204 Ariz. 231, 62 P.3d 976 (App. 2003), the Court explained that an evidentiary hearing must be held to determine (1) whether the fault for the discovery violation lies with the client or counsel, (2) whether the violation was committed willfully or in bad faith, and (3) whether the egregiousness of the violation warrants the ultimate sanction of dismissal or some lesser sanction.  Because the trial court inferred or assumed the answers to the first two questions without holding an evidentiary hearing, the Court of Appeals held that the record did not support those findings.  Moreover, the trial court failed to make express findings showing that it thoroughly considered whether less severe sanctions would suffice.  Accordingly, the Court reversed and remanded.   

Judge Swann authored the opinion; Presiding Judge Orozco and Judge Irvine concurred. 

Garza v. Swift Transportation Co. (8/24/2009): Arizona Supreme Court Holds That Court of Appeals Lacks Appellate Jurisdiction Over Superior Court Interlocutory Denials of Class Certification for Purported Class Actions.

Plaintiff filed suit and sought certification of a class of individuals who had contracted with a Phoenix trucking company.  The superior court denied class certification and determined that plaintiff's individual claim was subject to compulsory arbitration.  Plaintiff appealed the denial of class certification and the superior court stayed the arbitration.  The court of appeals found appellate jurisdiction under A.R.S. § 12-2101(D) and vacated the superior court’s denial of class certification.

Swift petitioned for review.  The petition did not address the issue of appellate jurisdiction. The Arizona Supreme Court granted review and ordered the parties to submit supplemental briefs on the appellate jurisdiction issue. 

Overruling its decision in Reader v. Magma-Superior Copper Co., 108 Ariz. 186, 187, 494 P.2d 708, 709 (1972), the Supreme Court vacated the court of appeals memorandum decision and held that a plaintiff may not appeal an interlocutory denial of class certification.  Instead, the proper vehicle for such a challenge is by Special Action.

The Court rejected plaintiff’s argument that § 12-2101(D) permitted the appeal as one “from any order affecting a substantial right made in any action when the order in effect determines the action and prevents judgment from which an appeal might be taken.” Plaintiff had argued that this standard was met because the denial of class certification rendered his claim too small to justify the cost of proceeding, thus effectively ending the litigation of his claim.

In Reader, the Arizona Supreme Court affirmed the existence of appellate jurisdiction under § 12-2101(D) to challenge a denial of class certification in a case in which, absent class certification, the plaintiff’s claim would be too small to proceed.  Reader thus adopted a fact-specific approach, recognizing appellate jurisdiction to review interlocutory orders denying class certification if the orders render a case financially non-feasible to pursue.

The Court concluded that Reader should be overturned for three principal reasons.  First, the Reader approach required a fact-specific analysis that created numerous complications, including a need to establish a record on the issue.  Second, the Reader approach created an inconsistency because defendants had no right under § 12-2101(D) to appeal orders granting class certification.  Third, the Reader doctrine was not logically limited to class certification orders, and thus created uncertainty as to whether other non-final orders could be appealed if they could be shown to render a case economically unattractive to a plaintiff.

Justice Ryan authored the opinion for the unanimous Court. 

Brewer v. Burns (8/13/09):  Arizona Supreme Court Holds that the Legislature Must Transmit All Passed Bills to the Governor With No More Delay than is Necessary to Complete Any Ministerial Tasks.

On June 4, 2009, the Arizona Legislature passed a series of appropriations bills.  The leaders of both chambers of the Legislature thereafter signed the bills, but refused to present them to the Governor after she announced her intent to veto them.  The Governor demanded that the Legislature immediately transmit the bills.  After the Legislature refused, the Governor filed a petition for special action with the Arizona Supreme Court, which accepted jurisdiction but ultimately denied the requested relief.

The Arizona Supreme Court first concluded that the case was justiciable.  The Court explained that the case was proper for special action review because it involved a good-faith dispute between coordinate branches of government over their respective lawmaking powers.  The Court also determined that the Governor had standing and that the case was ripe because the Governor alleged that the Legislature’s refusal to present finally passed bills violates the Constitution and undermines her express powers.  Lastly, the Court concluded that the case did not involve a political question because the Constitution did not commit resolution of the issue to another branch of government and the courts are well equipped to resolve the dispute.

Turning to the merits, the Court held that the Legislature must immediately present to the Governor all bills signed into law, allowing only a short time to complete ministerial matters.  The Court reasoned that the Constitution requires all bills to be transmitted “when finally passed,” and that the plain meaning of “when” “signal[s] a point in time related to the occurrence of a specific event” – namely, the final passage of a bill.  Ultimately, however, the Court denied the Governor’s request that the Court order the Legislature to transmit the bills by 5:00 p.m. on June 23, 2009, because the Legislature may have waited to pass the bills had it anticipated the Court’s decision and the Legislature committed to transmit the bills within a week.

Chief Justice Berch concurred in the result, but wrote separately to explain that she would have held, based on the lack of any timing requirement in the Presentment Clause and past practice, that the Legislature need only transmit a passed bill within a reasonable time.

Justice Bales authored the majority opinion; Chief Justice Berch concurred in the result.

ADOA v. Cox (8/17/2009): Division Two of the Arizona Court of Appeals Holds That ADOA May Recover the Full Amount of Medical Costs Provided to Participants Under the State Employee Health Care Plan, but That Recovery Is Limited to the Participant’s Net Recovery From the Third-Party Tortfeasor After Attorneys’ Fees Are Deducted.

The Arizona Department of Administration (“ADOA”) administers a self-insured plan to provide healthcare benefits to state employees and their dependents.  The state plan paid just over $25,000 for the Coxes’ medical treatment following an automobile accident caused by a third party.  The Coxes recovered $30,000 from the third-party tortfeasor and $200,000 from their automobile liability insurance carrier.  ADOA demanded reimbursement of the fees expended for the Coxes’ medical care under A.R.S. § 12-962 and the Coxes refused.  ADOA filed suit.  Both parties moved for summary judgment.  The trial court granted summary judgment in favor of ADOA and against the Coxes, but awarded ADOA just under $2,500 after applying a formula to determine what portion of the $30,000 recovered from the third-party tortfeasor was attributable to medical costs.  The parties cross appealed.  On appeal, ADOA argue that it should have received the full amount it paid for the Coxes’ medical care.  The Coxes argue that ADOA is not entitled to reimbursement at all.

The Arizona Appeals Court affirmed the grant of summary judgment for ADOA and remanded for the trial court to enter an award to ADOA for the full amount of the Coxes’ medical care.  The Court held that ADOA is entitled to reimbursement under A.R.S. § 12-962, rejecting the Coxes’ many arguments to the contrary.  Under A.R.S. § 12‑962, the state can recover the reasonable value of medical care and treatment provided to a person who is injured by a third-party tortfeasor.  The Court reasoned that the ADOA’s payment of the Coxes’ medical bills via the Employee Health Insurance Trust Fund created by A.R.S. § 38-654(A) are payments by the state for purposes of § 12-962.  Moreover, § 12-962 applies to services provided through United Healthcare, the company with which the state contracts for the provision of the medical care.

Addressing the amount of ADOA’s recovery, the Court explained that under § 12‑962(A), ADOA is subrogated to the entire claim against the third-party tortfeasor.  Thus, ADOA is entitled to recover the cost of the medical expenses from the amount the Coxes received from the third-party tortfeasor.  Further, because § 12-962(B) does not speak to apportionment, the trial court should not have apportioned the Coxes’ damages in awarding costs to ADOA.  The Court also reasoned that the Coxes’ attorneys’ fees and costs should be deducted from the amount recovered from the third-party tortfeasor before determining the amount available to reimburse ADOA.  Thus, to the extent that ADOA’s claim for medical expenses exceeds the Coxes’ net recovery, ADOA is limited to the amount of the Coxes’ net recovery.      

Judge Howard authored the opinion, Judges Espinosa and Pelander concurred.

Tripati v. Tucker (7/29/2009): Arizona Court of Appeals Division Two Holds That a Plaintiff Claiming Indigency has the Burden of Proof When a Defendant Challenges Plaintiff’s Status Under A.R.S. § 12-302.

Tripati filed four lawsuits, which the court later consolidated.  Tripati successfully claimed he was indigent and was therefore able to defer the payment of filing fees. The defendants later challenged Tripati’s claims of indigence and, after a hearing on the issue under A.R.S. § 12‑302(G), the court found he was not indigent, revoked Tripati’s fee deferral, and ordered him to pay all filing fees.  Tripati failed to pay the fees, causing the court to dismiss the four cases with prejudice.

In a unanimous decision, the Court of Appeals affirmed.  First, the Court held that the trial court properly placed the burden to prove indigency on Tripati.  The Court explained that, although the statute did not expressly identify which party had the burden of proof at an A.R.S. § 12-302(G) hearing, the statute required Tripati to prove indigency in other circumstances, such as the original claim of indigence.  Because nothing in the statute stated that the burden switches, the Court interpreted the statute to require Tripati to prove his claims of indigence.  Moreover, the Court agreed that Tripati failed to carry his burden because the evidence indicated that he had substantial financial support.

Second, the Court held that the trial court did not err by considering the incomes of Tripati’s relatives or his status as a vexatious litigant.  The Court noted that the statute does not limit what evidence may be considered.  Furthermore, because these were civil cases, the constitutional concerns that limit a court’s ability to consider a criminal defendant’s family members’ incomes were not relevant.  Finally, a court could consider Tripati’s litigious past because it showed that he had financial resources.

Judge Espinosa authored the opinion; Judges Howard and Pelander concurred.

In Re MH (8/6/2009): Arizona Court of Appeals Division One Holds That a Patient in a Hearing for Involuntary Mental Health Treatment Does Not Have a Due Process Right to In-Court Identification.

A petition was filed seeking involuntary medical treatment for a patient diagnosed with schizophrenia.  As required by A.R.S. § 36-539(B), two acquaintances of the patient testified at the hearing regarding the patient’s condition.  The court found that the patient was suffering from a mental illness and ordered that the patient undergo inpatient and outpatient treatment for up to a year. The patient appealed the court’s decision, arguing that her due process rights were violated because no witness identified her during the hearing as the subject of the petition for involuntary treatment.

The Arizona Appeals Court affirmed the treatment order, holding that patients in such hearings do not have a due process right to in-court identification.  The Court stated that the patient’s reliance on a criminal case dealing with in-court identification was inapposite because an action for involuntary mental health treatment is a civil action.  The patient also argued that A.R.S. § 36‑539(B), which requires that two acquaintances of the patient testify at the hearing, implied a requirement for in-court identification. The Court rejected this argument, however, stating that not only could no such requirement be found in the statute or its legislative history, but also that such a reading would be inconsistent with A.R.S. § 36-539(C), which allows courts to conduct a hearing in the absence of the patient and with previous precedent allowing telephonic testimony in such treatment hearings. The Court concluded by pointing out that the patient never asserted that she was not the person who was the subject of the petition, and that there was sufficient evidence for the lower court to find that she was in fact the person who was the subject of the petition.

Judge Johnsen authored the opinion; Judges Kessler and Winthrop concurred.

Keovorabouth v. Ind.Comm’n of Arizona (8/04/09):  Division One Holds That Worker’s Compensation Claimant’s Injuries, Sustained In Car Accident While Traveling to Her Attorney’s Office to Prepare For Her Deposition In a Pending Industrial Commission Proceeding, Did Not Arise Out of Her Employment and Are Non-Compensable

In 2005, Keovorabouth filed a worker’s compensation claim alleging she was injured on the job in May 2005 during her employment with Rockford Corporation.  Wasau Business Insurance, Rockford’s insurer, denied her claim for benefits, in August 2005.  On January 5, 2006, Keovorabouth was scheduled to have her deposition taken by Rockford’s counsel.  En route to her attorney’s office to prepare for the deposition, Keovorabouth was injured in a car accident.  Keovorabouth filed a second worker’s compensation claim against Rockford in December 2006, asserting that her January 5 injury was compensable because it had occurred in the course of satisfying her statutory duty to appear and testify at the deposition as compelled by her employer.  The Administrative Law Judge (ALJ) found that this claim was noncompensable.  Keovorabouth filed a request for review, and the ALJ summarily affirmed the decision.  Keovorabouth filed a special action, and the Court of Appeals took jurisdiction.

Division One affirmed the ALJ’s decision.  The Court noted that compensability requires both legal and medical causation.  The Court agreed with Rockford and Wasau that Keovorabouth had failed to establish legal causation, i.e., the accident arose out of and in the course of Keovorabouth’s employment.  The Court analogized travel for the purpose of attending a deposition to travel for the purpose of attending an IME.  In both instances, the employee is travelling to pursue a worker’s compensation claim against the employer.  Unlike the duty to submit to reasonable medical care, an employee is under no duty to pursue a compensation claim.  Thus, unlike travel for medical treatment, travel to a deposition is not “impliedly authorized by the employer” as part of employment.  Injuries sustained during such travel do not arise out of the scope of employment and are therefore are generally not compensable.

Judge Gemmill authored the decision; Judges Weisberg and Barker concurred.

In Re MH-2008-000867 (7/30/2009): Division One of the Arizona Court of Appeals Holds That Absent a Showing of True Necessity, Based on Unavailability, Telephonic Testimony of a Doctor at a Hearing for Court-Ordered Treatment Violates the Patient’s Rights.    

In a hearing on a Petition for Court-Ordered Treatment of Appellant, one of the testifying doctors testified telephonically.  During his testimony he explained to the trial court that he was attending a mandatory resident training program in Phoenix.  The hearing was held in Mesa.  Appellant objected and asked that the doctor be required to testify in person.  The court denied the request but made no factual findings regarding the doctor’s availability.  The court found by clear and convincing evidence that Appellant was suffering from a mental disorder and ordered treatment.  Appellant timely appealed. 

The Arizona Appeals Court vacated the order of involuntary treatment, holding that the trial court committed reversible error when it permitted one of the testifying doctors to appear telephonically when that doctor was present in the greater metropolitan area where the hearing occurred and the State had not demonstrated that the doctor was unavailable to appear in person. 

Under A.R.S. § 36-539(B), the evidence at a hearing on a petition for court-ordered treatment must include testimony from two witnesses acquainted with the patient at the time of the alleged mental disorder and the testimony of two physicians who performed examinations of the patient.  The Court explained that a two-pronged test is used to determine if telephonic testimony is admissible:  the telephonic testimony must be necessary to further an important public policy, and the reliability of the testimony must otherwise be assured.  The Court found that no question regarding the reliability of the testimony was at issue.  Regarding the necessity of the telephonic appearance, the Court found that the State had not demonstrated, and the trial court had made no factual findings regarding, the unavailability of the testifying doctor.  The Court noted that the right to confrontation in these hearings is “similar” to that under the Confrontation Clause of the United States Constitution.  Accordingly, the Court held, in the absence of a showing of necessity, the telephonic appearance violated Appellant’s rights.   

Judge Orozco authored the opinion, Judges Brown and Norris concurred.

Maleki v. Desert Palms Prof’l Props., L.L.C. (7/28/2009):  Arizona Court of Appeals Division One Holds That an Immaterial Breach of the Lease Did Not Deprive the Tenant of the Power to Renew, Even Though the Tenant Had to Be “In Compliance” with Lease to Renew.

In May 2002, Plaintiff Maleki entered into a five-year commercial lease with Defendant Desert Palms that required him to pay rent, taxes, and fees based on the rentable square footage, which was to be calculated when the lease began.  The lease also gave Maleki a right to renew the lease for an additional five year-term if he was “in compliance” with the lease.  In October 2002, Desert Palms notified Maleki that the rentable space was 1,418 square feet.  In August 2003, however, Desert Palms billed Maleki for 1,474 square feet.  Maleki disputed the increase and for the next three years only paid rent for 1,418 square feet.  In November 2006, Desert Palms informed Maleki that the rentable space was actually 1,466 square feet, and demanded payment of back rent and fees.  That same month, Maleki gave notice of his intent to renew the lease, but Desert Palms rejected his renewal because he failed to “maintain compliance” with the lease by not paying the proper amount of rent. 

Maleki filed a complaint seeking a declaratory judgment, alleged breaches of contract and the duty of good faith and fair dealing, and sought attorneys’ fees under A.R.S. § 12-341.01.  The trial court found that although the rentable space was actually 1,466 square feet, Maleki was in compliance with the lease and could therefore renew because Desert Palms was responsible for his failure to pay the proper amount of rent.  The Court found Maleki liable for $13,912 in back rent, fees and taxes, but found that Desert Palms violated its duty of good faith and fair dealing, and awarded Maleki $105,872.21 in attorneys’ fees.

The Arizona Appeals Court affirmed.  The Court first held that Maleki was in compliance with the lease for purposes of the renewal provision, citing Title Insurance & Guaranty Co. v. Hart, 160 F.2d 961 (9th Cir. 1947) and Foundation Development Corp. v. Loehmann’s Inc., 163 Ariz. 438, 788 P.2d 1189 (1990).  The court explained that because Maleki had faithfully complied with the lease by paying rent and fees based on the 1,418 square foot number originally calculated by Desert Palms, and had only committed an immaterial breach, he could renew. 

The Court next held that there was substantial evidence in the record to support the superior court’s conclusion that Desert Palms breached its duty of good faith and fair dealing.  Finally, the Court upheld the superior court’s award of Maleki’s attorneys’ fees under A.R.S. § 12-341.01 because he was the successful party.

Judge Johnsen authored the opinion; Presiding Judge Swann and Judge Gemmill concurred.

Hurd v. Hurd ( 7/23/2009): Arizona Court of Appeals Division One Holds Award of Sole Custody Appropriate if Court Finds a History of Domestic Violence, but When Deciding Whether Parent May Relocate Children, the Court Must Make Specific Findings Regarding All Relevant Statutory Factors.

The Hurds were married and had three children.  Father allegedly abused Mother and the children.  In 2005, after the parties disputed the care of the children, Mother obtained an Order of Protection to prohibit Father from seeing the children.  Shortly after, Father petitioned for dissolution of the marriage, and asked for joint custody of the three children.  Before the dispute was resolved, Mother lost her job, began living with the children in a shelter, and petitioned to relocate with the children to Wisconsin.  After a trial, the court found that there was a significant history of domestic violence, awarded sole legal custody to Mother, and granted her request to relocate to Wisconsin.  Father appealed.

In a unanimous opinion, the Arizona Court of Appeals affirmed the award of sole custody to Mother, but vacated and remanded the relocation finding.  Generally when custody is contested, A.R.S. § 25-403(A) requires a family court to consider on the record all of the statute’s enumerated factors relevant to the child’s best interest.  Father argued that the court abused its discretion by failing to make on-the-record determinations regarding some of the enumerated factors.  The Court of Appeals disagreed. The Court noted that under A.R.S. § 25-403.03(D), a finding of domestic violence creates a rebuttable presumption that joint custody is not in a child’s best interest.  Because the trial court found that there was domestic violence and “specifically found” that Father did not rebut the presumption against joint custody, the Court held that the trial court did not need to consider each enumerated factor from A.R.S. § 25-403(A).  Furthermore, although there was some conflicting evidence, the Court held that there was enough evidence to support the finding that there was a history of domestic violence.  Thus, the Court affirmed the award of sole custody.

Turning to the relocation decision, the Court held that the trial court failed to satisfy the duty to make findings regarding specific statutory factors related to the relocation and the children’s best interest.  Although the trial court discussed many of the factors on the record, it failed to make specific findings regarding several of them.  Most significantly to the Court, there was no finding regarding how the relocation would affect the needs of the children or their stability.  Thus, the Court of Appeals vacated the relocation decision and remanded the issue back to the trial court. 

Judge Orozco authored the unanimous opinion; Judges Johnsen and Weisberg concurred.

Santa Maria v. Najera  (6/16/2009):  Arizona Court of Appeals Division One Holds that Grant of Partial Summary Judgment is Not Appealable under A.R.S. § 12-2101(F).

Plaintiff Santa Maria filed a complaint, in response to which Defendant Najera answered and counterclaimed.  Thereafter, Najera moved for summary judgment on some of Santa Maria’s claims.  When Santa Maria filed no response to the summary judgment motion, the Superior Court entered partial summary judgment on those claims in favor of Najera.  Santa Maria then filed a Rule 59 motion for new trial as to the claims on which summary judgment was entered against him.  The court denied the Rule 59 motion and Santa Maria appealed that denial.

The Court of Appeals, citing a lack of appellate jurisdiction, dismissed the appeal.  Harmonizing A.R.S. § 12-2101(F), with other authorities discouraging the piecemeal resolution of appeals, the Court explained that an otherwise non-final order, such as the partial summary judgment at issue here, was not rendered appealable simply because Santa Maria filed a Rule 59 motion.  The Court specifically pointed to its prior decision in Mezey v. Fioramonti, 204 Ariz. 599 (App. 2003) disapproved on other grounds by Bilke v. State, 206 Ariz. 462  (2003), as supporting its conclusion that, in the absence of Rule 54(b) language designating the partial summary judgment as final, a grant of partial summary judgment is not appealable under Section 12-2101(F).

Judge Johnsen authored the opinion in which Judge Swann and Judge Norris concurred.

Reid v. Reid (7/28/09):  Division One Vacates Family Court’s Custody Order Because It Did Not Adequately Make Findings Concerning the Factors in A.R.S. § 25-403(B) and Allows Argument on Appeal Not Raised in the Family Court

Father and Mother divorced and Mother obtained sole legal custody of the children.  Father moved to modify the decree to obtain sole legal custody, alleging, inter alia, that Mother failed to address the children’s counseling needs and inappropriately prescribed medication to the oldest child.  A neuropsychiatric evaluation was conducted of the oldest child. After the parties received that evaluation, Mother disclosed she would be calling Dr. Philip Stahl to critique the evaluation.  Father objected to the untimely disclosure of Dr. Stahl, but the court allowed his testimony during the evidentiary hearing.  The Court ruled that Mother would retain sole legal custody of the children.  Father appealed.

Division One addressed first Father’s claim that the trial court abused its discretion in allowing Dr. Stahl to testify.  The Court disagreed, finding that although Mother disclosed Dr. Stahl eight days before the hearing, the late timing was due in part to the late date on which the parties received the custody evaluation.  Also, Father chose not to seek a continuance to depose Dr. Stahl.  The Court noted that in general a trial court’s duty is to hear all competent evidence offered in determining a child’s best interests when making a custody decision. 

The Court went on to hold that the family court erred as a matter of law when it granted custody to Mother without making specific findings on the record about the factors set forth in A.R.S. § 25-403(B).  The Court noted that “we cannot ascertain from the court’s orders and ruling how the court weighed the statutory factors to arrive at its conclusion that Mother should retain sole legal and primary physical custody.”  Mother argued that Father had waived this issue on appeal because he did not raise it in family court.  While acknowledging this general rule, Division One noted that waiver is not an “unalterable rule” and that “mechanically applying waiver principles in this setting . . . involving the mandatory statutory findings of A.R.S. § 25-403 would inappropriately deprive the family court and all parties of the baseline information required for future petitions involving a child’s . . . best interests.” 

Judge Hall dissented on the waiver issue.  He would have held that Father waived the issue by failing to raise it below, reasoning that “the importance of [the statutory] findings is all the more reason why a litigant should be required to first provide the family court an opportunity to correct what is a significant but easily correctable procedural omission before asserting on appeal that the omission constitutes reversible error.”

Judge Winthrop, Presiding Judge, authored the decision, with Judge Irvine concurring.

Pozo Parra v. Continental Tire North America Inc. (7/28/2009): Arizona Court of Appeals Division One Holds that Deference to Plaintiff’s Choice of Forum Precludes Dismissal of Suit on Forum Non Conveniens Grounds Absent Strong Showing of Public and Private Interests Favoring Suit in Alternative Forum.

A faulty tire caused an automobile accident in Sonora, Mexico, resulting in various injuries.  Plaintiffs, including a U.S. citizen and a non-citizen resident, brought suit in Maricopa County against the companies that manufactured and sold the tire.  Defendants moved to dismiss on the grounds of forum non conveniens, contending that the lawsuit’s connection to Arizona was “tenuous” and that Sonora provided a more convenient forum.  The superior court granted the motion and dismissed the complaint.  Plaintiffs appealed.

The Court of Appeals reversed and remanded, holding that the superior court had abused its discretion by giving insufficient weight to the plaintiff’s choice of forum.  To prevail on a motion to dismiss for forum non conveniens, a defendant must demonstrate (1) the existence of an available alternative forum to hear the case, and (2) that the alternative forum is a more convenient place to litigate the case.  A plaintiff’s choice of forum should not be disturbed unless the balance of convenience factors weighs heavily in favor of the alternative forum.   

The appeals court concluded that the defendant failed to prove that Sonora would be a significantly more convenient forum.  Although some potential case witnesses were Mexico residents, none of them had seen the accident occur.  Defendants had not shown that any necessary evidence from any witness in Mexico could not be obtained pursuant to the Hague Convention.  Moreover, the record did not demonstrate that the majority of likely witnesses, including the plaintiffs and the “multitude of witnesses, lay and expert” with information about the manufacture of the tire, would be unavailable to testify in Arizona.  Many of the relevant documents and much of the testimony concerning the tire’s manufacture and design would presumably be in English, and would require translation for a trial in Mexico.  Accordingly, the private interests weighed, if at all, only slightly in favor of the alternative forum.

The public interests, on the other hand, weighed in favor of the Arizona forum.  The tire at issue was sold in Arizona, to an Arizona resident; the accident killed one United States citizen, injured another, and also injured a Mexican citizen residing in the United States.  Little weight could be given to the factor of court congestion in Arizona, because the record did not reveal how quickly the case could be tried in Sonora.

  Judge Johnsen wrote the opinion; Judges Swann and Gemmill concurred.