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Brush Welman2/29/2000
SPECIAL ACTION PROCEEDING
This special action presents the following issue: After an appellate court reverses a trial court ruling and remands a case to the trial court for further proceedings, is a party entitled to a peremptory removal of a judge pursuant to Rule 42(f)(1), Ariz. R. Civ. P., 16 A.R.S., if that party had already exercised the right before the case was appealed? Based on the limitation in A.R.S. ยง 12-411(A) to one change of judge in any action, we conclude that, once a party has exercised the right to a peremptory change of judge, it is not renewed upon remand after appeal.
FACTS AND PROCEDURAL BACKGROUND
Real parties in interest, former and current employees of Brush Wellman and their spouses (plaintiffs), filed complaints against Brush Wellman and other defendants alleging that the employees had contracted chronic beryllium disease, a lung condition, as a result of their exposure to beryllium while working for Brush Wellman. The cases were consolidated and initially assigned to Judge Buchanan. He recused himself, however, and the case was assigned to Judge Tinney. Plaintiffs filed a notice of change of judge pursuant to Rule 42(f)(1), thereby exercising their right to a peremptory change of judge. The case was then assigned to Judge Hannah, who granted Brush Wellman's motion for summary judgment on all claims. Plaintiffs appealed.
We affirmed the trial court's grant of summary judgment on all but the intentional injury claim, which we reversed, concluding that plaintiffs had alleged sufficient facts to state a claim that Brush Wellman had acted knowingly and intentionally. Stoecker v. Brush Wellman, Inc., No. 2 CA-CV 96-0293 (memorandum decision filed March 31, 1998). We also found factual questions pertaining to the statute of limitations issue on that claim. Plaintiffs sought review by the supreme court of our affirmance of summary judgment on their breach of contract claim. The supreme court granted review and held that the exclusivity provision of the Workers' Compensation Act did not bar plaintiffs' claims for breach of contract to pay benefits supplementing workers' compensation. Stoecker v. Brush Wellman, Inc., 194 Ariz. 448, 984 P.2d 534 (1999). The court vacated the inconsistent portions of our decision, reversed the trial court's grant of summary judgment, and remanded the case for further proceedings in that court. Id.
In August 1999, the case was assigned to respondent Judge Lee because Judge Hannah had retired. In September, plaintiffs filed another notice of change of judge pursuant to Rule 42(f)(1), claiming they had "not previously been granted a change of judge as a matter of right in this action." In its opposition to the notice, Brush Wellman contended that plaintiffs already had exercised and been granted a peremptory change of judge. Relying on Rule 42(f)(1)(E) and our decision in Valenzuela v. Brown, 186 Ariz. 105, 919 P.2d 1376 (App. 1996), plaintiffs responded that their rights to a change of judge were renewed when the case was remanded after the appeal to this court and review by the supreme court. Respondent agreed with plaintiffs and honored the notice. The case was then reassigned to Judge Kelly. This special action followed the respondent judge's denial of Brush Wellman's motion for reconsideration.
SPECIAL ACTION JURISDICTION
We agree with Brush Wellman that it has no equally plain, speedy, or adequate remedy by appeal. See Ariz. R. P. Special Actions 1, 17B A.R.S. Challenges to rulings on a peremptory change of judge are appropriately reviewed by special action. See Taliaferro v. Taliaferro, 186 Ariz. 221, 223, 921 P.2d 21, 23 (1996); Valenzuela, 186 Ariz.
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