IN THE

Court of Appeals

DIVISION ONE FILED: 10/5/16

AMY M. WOOD,
CLERK BY:

STATE OF ARIZONA
DIVISION ONE

ADVOCATES FOR AMERICAN DISABLED

INDIVIDUALS,
Petitioner,
v.
THE HONORABLE DAVID M. TALAMANTE,
Judge of the SUPERIOR COURT OF
THE STATE OF ARIZONA, in and for
the County of MARICOPA,
Respondent Judge,
1639 40TH STREET LLC,
Real Party in Interest.

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Court of Appeals
Division One
No. 1 CA-SA 16-0206

RB

Maricopa County
Superior Court
No. CV2016-090506

ORDER RE: ACCEPTING JURISDICTION; DENYING RELIEF OF SPECIAL

ACTION
The court, Presiding Judge Kent E. Cattani and Judges

Lawrence

F. Winthrop and Kenton D. Jones participating, has considered the

petition for special action filed by Advocates for American Disabled
Individuals (Petitioner) challenging denial of Petitioners Notice
of Change of Judge as a Matter of Right, filed pursuant to Rule 42(f)
(1), Ariz. R. Civ. P.

The court has also considered the

response and

reply memoranda filed in this matter.

Petitioner has no equally plain, speedy, and adequate remedy by
appeal.

See Ariz. R.P. Spec. Act. 1(a); Taliaferro v. Taliaferro,

186 Ariz. 221, 223-24, 921 P.2d 21, 23-24 (1996).

Accordingly,

[i]t

is appropriate that we accept jurisdiction of this special action

because the denial of a peremptory request for a change of judge is
properly reviewed only by special action. Smith v. Mitchell, 214
Ariz.

78,

79,

2,

148

P.3d

1151,

1152

Taliaferro, 186 Ariz. at 223, 921 P.2d at 23).

(App.

2006)

(citing

A notice of change of judge is ineffective if filed within

three (3) days of a scheduled proceeding unless the parties have
received less than five (5) days notice of that proceeding or the
assignment

of

the

judge.

Ariz.

R.

Civ.

P.

42(f)(1)(C).

Petitioners notice was filed August 22, 2016 within three days of
the scheduled August 25, 2016 status conference. Further, the record
provided this court indicates the courts judicial assistant e-mailed
the parties notice of the August 25 status conference on August 17,
2016 more than five days before that proceeding.
record

does

not

indicate

Petitioners

notice

of

Because the

change

of

judge

complied with Rule 42(f)(1)(C), Petitioners notice was ineffective.

Moreover,

this

court

will

affirm

the

superior

court

if

its

determination is correct for any reason, notwithstanding whether that

reason

was

expressly

relied

upon

by

the

court.

State

ex

rel.

Montgomery v. Mathis, 231 Ariz. 103, 109, 17, 290 P.3d 1226, 1232
(App. 2012) (citation omitted).

Accordingly,

IT IS ORDERED that, in the exercise of its discretion, the Court

of Appeals accepts jurisdiction of this petition for special action.
IT IS FURTHER ORDERED denying Petitioners request for relief.
/s/
KENT E. CATTANI, Presiding Judge
To:
Dennis I Wilenchik
Lawrence J Felder
John D Wilenchik
Brian Hembd
Scott F Frerichs
Lindsay G Leavitt
Hon David M Talamante
Paul N Watkins
Matthew DuMee
Brunn W Roysden III
Evan G Daniels
Oramel H Skinner
John R Heyhoe-Griffiths
Peter Strojnik

Hon Michael K Jeanes