 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Blankenbaker v. Jonovich9/3/2002
to Jonovich.
Dr. Blankenbaker next contends that the superior court abused its discretion in denying his motion to strike footnote six from Jonovich's reply in connection with the motion for summary judgment. The footnote alleged that Dr. Blankenbaker had filed several other lawsuits, numerous complaints with the Board of Chiropractic, and "approximately ten Bar Complaints against this firm." The footnote also alleged that none of the complaints had been found meritorious, implied that Dr. Blankenbaker was engaging in the "sport" of "practicing law full time," and stated that his conduct was oppressive and over-reaching and that his request for Rule 11 sanctions was "frivolous." Dr. Blankenbaker contends that the superior court erred in refusing to strike footnote six.
The superior court may strike from a pleading "any redundant, immaterial, impertinent, or scandalous matter." Ariz. R. Civ. P. 12(f). Motions to strike are not favored, however, and matters "'should not be stricken from a pleading unless it is clear that [they] can have no possible relation to the subject matter of the litigation' and the movant can show he is prejudiced by the allegations." Stone v. Arizona Hwy. Comm'n, 93 Ariz. 384, 395, 381 P.2d 107, 114 (1963) (citations omitted) (overruled in part on other grounds by Grimm v. Arizona Bd. Of Pardons & Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977)).
The allegations that Dr. Blankenbaker had filed numerous other lawsuits, board complaints, and bar complaints against Jonovich's attorneys, were arguably relevant. Dr. Blankenbaker had sought Rule 11 sanctions and Jonovich contended that the motion was motivated by something other than a good faith belief that frivolous pleadings had been filed in bad faith. Moreover, Dr. Blankenbaker had stated in his response to Jonovich's motion for summary judgment that "Jonovich's attorney and he have been involved in other litigation and the instant motion is part of a vendetta Jonovich's attorney has against him." Thus, Dr. Blankenbaker first mentioned the unrelated litigation and the motivations for it. While the existence of the numerous lawsuits and complaints was irrelevant to the issue whether the lien was valid, we presume that the superior court considered the information only in relation to the matter to which it was relevant. See Beville v. Allen, 28 Ariz. 397, 402-03, 237 P. 184, 185-86 (1925) (presume trial court considers evidence only for permissible purpose). Accordingly, we find no prejudice from footnote six that would have compelled the superior court to strike it.
Accordingly, we reverse the superior court's summary judgment in favor of Jonovich and remand for further proceedings consistent with this decision. We reverse the court's award of costs and attorneys' fees in favor of Jonovich and we affirm the court's denial of Dr. Blankenbaker's motion to strike. Dr. Blankenbaker is entitled to an award of costs on appeal, upon his compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCURRING:
ANN A. SCOTT TIMMER, Presiding Judge
SUSAN A. EHRLICH, Judge
Page 1 2 3 Arizona Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|