Folkestad v. Hon herrod/erickson

NOTICE: NOT FOR PUBLICATION.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

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