Engineers v. Sharpe, No. 13281-PR

CourtSupreme Court of Arizona
Writing for the CourtHOLOHAN; Case; Moeller's; CAMERON
Citation117 Ariz. 413,573 P.2d 487
PartiesJohn Carollo ENGINEERS, Appellant, v. Alfred N. SHARPE, by and through his guardian, Anne M. Sharpe, and Anne M. Sharpe, his wife, Appellees.
Docket NumberNo. 13281-PR
Decision Date21 December 1977

Page 487

573 P.2d 487
117 Ariz. 413
John Carollo ENGINEERS, Appellant,
v.
Alfred N. SHARPE, by and through his guardian, Anne M. Sharpe, and Anne M. Sharpe, his wife, Appellees.
No. 13281-PR.
Supreme Court of Arizona, In Banc.
Dec. 21, 1977.

[117 Ariz. 414]

Page 488

Jennings, Strouss & Salmon by William T. Birmingham and M. Byron Lewis, Phoenix, for appellant.

John A. Beaver and Kenneth Rosengren, Phoenix, for appellees.

HOLOHAN, Justice.

Appellee Alfred N. Sharpe, an employee of Bishop Glass Company, brought suit in the Superior Court against several defendants, including appellant John Carollo Engineers, for injuries sustained in a fall while on the premises of the Marathon Steel Company. Carollo Engineers filed a Motion for Summary Judgment. Judge Williby Case granted the motion of Carollo Engineers, and, on January 13, 1977, a written Judgment was filed with a finding pursuant to 16 A.R.S. Rules of Civil Procedure, rule 54(b), that there was no just cause for delay, and that judgment should be entered forthwith for Carollo Engineers.

Judge Case resigned from the bench on January 15, 1977. On January 26, 1977, Sharpe filed a Motion for Reconsideration. Subsequently, the case was assigned to Judge James Moeller. Judge Moeller heard the Motion for Reconsideration, and he ruled that the motion was to be treated as a Motion for a New Trial under 16 A.R.S. Rules of Civil Procedure, rule 59(a). As thus treated he granted the motion, vacated the summary judgment and reinstated Carollo Engineers as a party defendant. Thereafter, Carollo Engineers appealed.

On May 19, 1977, the Court of Appeals dismissed appellant's appeal. That court held that while plaintiff's Motion for Reconsideration would be treated as a Rule 59 Motion for a New Trial for the purpose of tolling the appeals time, nevertheless, because in fact there had been no trial below, Carollo Engineers had no statutory right to appeal under A.R.S. § 12-2101(F). 1

We granted review because we believe that this case requires the resolution of three issues:

1. Whether a successor trial judge can vacate a final judgment made by his predecessor;

2. Whether a Motion for Reconsideration can be treated by the trial court as a motion included under 16 A.R.S. Rules of Civil Procedure, rule 59(a);

3. Whether the vacation of a summary judgment is an appealable order.

Initially, we must determine whether Judge Moeller had the authority to hear plaintiff's motion. Appellant has argued that our holding in Chanay v. Chittenden, 115 Ariz. 32, 563 P.2d 287 (1977) is relevant here. In Chanay, we criticized the practice of one sitting trial judge redeciding issues dealt with by another sitting trial judge where no additional discovery was had. We believe that Chanay is factually distinguishable from the case at bar.

[117 Ariz. 415]

Page 489

The instant case involves the retirement by resignation of a judge after rendition of a judgment, and the subsequent transfer of the case to a successor for the purpose of hearing post-judgment motions.

We believe that the assignment of the case to Judge Moeller is governed by 16 A.R.S. Rules of Civil Procedure, rule 63, which provides:

Disability of a judge

If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these Rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties. If such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.

(Emphasis added.)

This court discussed a similar issue in Silva v. DeMund, 81 Ariz. 47, 299 P.2d 638 (1956). There the term of office of the prior judge had expired and his successor ruled on post-judgment motions. This court held that under Rule 63, the successor judge had the authority...

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24 practice notes
  • Autonumerics, Inc. v. Bayer Industries, Inc., No. 1
    • United States
    • Court of Appeals of Arizona
    • September 4, 1984
    ...a motion for summary judgment where no new discovery had taken place. Id. at 34, 563 P.2d at 289. See also Engineers v. Sharpe, 117 Ariz. 413, 573 P.2d 487 (1977). Bayer argues that the second motion for summary judgment presented nothing new except a reference to Bayer's admission that unt......
  • Mezey v. Fioramonti, No. 1 CA-CV 02-0040.
    • United States
    • Court of Appeals of Arizona
    • April 3, 2003
    ...a new trial is addressed to a summary judgment, the appeal is authorized instead by A.R.S. § 12-2101(C). Engineers 65 P.3d 988 v. Sharpe, 117 Ariz. 413, 416, 573 P.2d 487, 490 [B]ecause there was, strictly speaking, no trial below, it would strain statutory construction to find that appella......
  • Smith v. Beesley, 2 CA-CV 2009-0175
    • United States
    • Court of Appeals of Arizona
    • January 12, 2011
    ...in the adoption of [Rule 56(d)] to make... a partial summary judgment final and appealable"); see also John Carollo Eng'rs v. Sharpe, 117 Ariz. 413, 414-15, 573 P.2d 487, 488-89 (1977) (acknowledging trial court's authority to vacate summary judgment pursuant to Rule 59(a), Ariz. R. Civ. P.......
  • Smith v. Beesley, No. 2 CA–CV 2009–0175.
    • United States
    • Court of Appeals of Arizona
    • February 10, 2011
    ...in the adoption of [Rule 56(d) ] to make ... a partial summary judgment final and appealable”); see also John Carollo Eng'rs v. Sharpe, 117 Ariz. 413, 414–15, 573 P.2d 487, 488–89 (1977) (acknowledging trial court's authority to vacate summary judgment pursuant to Rule 59(a), Ariz. R. Civ. ......
  • Request a trial to view additional results
24 cases
  • Autonumerics, Inc. v. Bayer Industries, Inc., No. 1
    • United States
    • Court of Appeals of Arizona
    • September 4, 1984
    ...a motion for summary judgment where no new discovery had taken place. Id. at 34, 563 P.2d at 289. See also Engineers v. Sharpe, 117 Ariz. 413, 573 P.2d 487 (1977). Bayer argues that the second motion for summary judgment presented nothing new except a reference to Bayer's admission that unt......
  • Mezey v. Fioramonti, No. 1 CA-CV 02-0040.
    • United States
    • Court of Appeals of Arizona
    • April 3, 2003
    ...a new trial is addressed to a summary judgment, the appeal is authorized instead by A.R.S. § 12-2101(C). Engineers 65 P.3d 988 v. Sharpe, 117 Ariz. 413, 416, 573 P.2d 487, 490 [B]ecause there was, strictly speaking, no trial below, it would strain statutory construction to find that appella......
  • Smith v. Beesley, 2 CA-CV 2009-0175
    • United States
    • Court of Appeals of Arizona
    • January 12, 2011
    ...in the adoption of [Rule 56(d)] to make... a partial summary judgment final and appealable"); see also John Carollo Eng'rs v. Sharpe, 117 Ariz. 413, 414-15, 573 P.2d 487, 488-89 (1977) (acknowledging trial court's authority to vacate summary judgment pursuant to Rule 59(a), Ariz. R. Civ. P.......
  • Smith v. Beesley, No. 2 CA–CV 2009–0175.
    • United States
    • Court of Appeals of Arizona
    • February 10, 2011
    ...in the adoption of [Rule 56(d) ] to make ... a partial summary judgment final and appealable”); see also John Carollo Eng'rs v. Sharpe, 117 Ariz. 413, 414–15, 573 P.2d 487, 488–89 (1977) (acknowledging trial court's authority to vacate summary judgment pursuant to Rule 59(a), Ariz. R. Civ. ......
  • Request a trial to view additional results

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