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Althaus v. Cornelio12/12/2002
This petition for special action arises from an attorney malpr actice action filed by real party in interest Penn-America Insurance Company against petitioners (collectively, Althaus). Althaus previously repr esented Penn-America's insured, Pena Blanca Lake Resort, Inc., in a wrongful death action brought by Peter and Rita Wolfe for the death of their minor son.
In this petition for special action, Althaus contends the respondent judge err ed in two respects: (1) in denying Althaus's motion for summary judgment, in which Althaus had contended the attorney malpractice action was time barred, and (2) in granting Penn-America's cross-motion for summary judgment, thereby striking Althaus's statute of limitations defense, particularly, without permitting Althaus to depose, as he had requested, various persons who had been involved in the wrongful death action or whose affidavits Penn-America had submitted in support of its cross-motion.
The respondent judge's order is not appealable, and Althaus has no equally plain, speedy, and adequate remedy by appeal. See Ariz. R. P. Special Actions 1, 17B A. R. S. In addition, the issues raised involve mixed questions of fact and law that appear to be of first impression in Arizona, and addressing them now will serve the interests of judicial economy. See Montano v. Browning, 202 Ariz. 544, 2, 48 P.3d 494, (App. 2002); Harris Trust Bank v. Superior Court, 188 Ar iz. 159, 162, 933 P.2d 1227, 1230 (App. 1996). Therefore, we accept jurisdiction of the special action.
On the merits, we conclude that the respondent judge did not abuse his discretion or otherwise err in denying Althaus's motion for summary judgment, at least at this juncture. See Ariz. R. P. Special Actions 3(c). But we further conclude that the respondent judge did abuse his discretion in granting Penn-America's cr oss-motion for summary judgment and striking Althaus's limitations defense. See Files v. Bernal, 200 Ar iz. 64, , 22 P. 3d 57, 2 (App. 2001) (" court abuses its discretion where the record fails to provide substantial support for its decision or the court commits an error of law in reaching the decision. "). Genuine issues of material fact preclude that ruling, and Althaus's request for further discovery bearing on the limitations issue is warranted. See Ariz. R. Civ. P . 56(f), 16 A.R. S., Pt. 2. Although future discovery may affect final disposition of the limitations defense, neither the record nor applicable law supports a finding as a matter of law that Penn-America timely filed its malpractice action. Accordingly, we grant relief by vacating that portion of the respondent judge's order of June 19, 2002, that granted Penn-America's cross-motion and struck Althaus's defense.
BACKGROUND
With respect to Penn-America's cross-motion, we view the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, here, Althaus. See Walk v. Ring, 202 Ar iz. 310, , 44 P. 3d 990, 3 (2002). So viewed, the record r eflects that, on June 3, 1999, counsel for the Wolfes and several newly retained attorneys for Penn-America met and reached a settlement of approximately $2.6 million in the wrongful death action. That case previously had been tried to a jury, which had returned a net ver dict of approximately $6. 5 million in favor of the Wolfes and against Pena Blanca on May 13, 1999. As of June 3, however , the verdict had not yet been reduced to judgment. On June 4, counsel in the wrongful death action informed the trial court in that case that "the parties ha reached a stipulation as to settlement terms" and would be "filing the Stipulation with the Court after approval by the Bankruptcy Court"
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