Arizona Court of Appeals Division One Holds That a Party Whose Case is Consolidated With Another May Not Exercise a Peremptory Change of Judge if a Party on the Same Side in the Other Case Has Already Exercised a Peremptory Change of Judge.

Petitioner, the son of the decedent in a probate case, exercised a peremptory change of judge pursuant to Rule 42(f)(1), Ariz. R. Civ. P.  In a separate action, Petitioner filed a civil complaint alleging conversion of estate assets.  Over petitioner’s objection, the Superior Court consolidated the probate and civil cases.  Petitioner then sought a change of judge in the consolidated proceeding.  The Superior Court denied the request on the ground that Petitioner had already exercised his “first and only” peremptory challenge as a matter of right.  Petitioner sought special action review.

The Court of Appeals accepted jurisdiction but denied relief and affirmed.  Rule 42(f)(1)(A) provides that “each side” in a superior court action is entitled to one peremptory change of judge.  The rule, however, specifies that “each action, whether single or consolidated, shall be treated as having only two sides” and allows a judge to grant additional peremptory changes of judge only if “two or more parties on [the] side have adverse or hostile interests.”  Because the “adverse or hostile interests” standard was not met, Petitioner’s second peremptory change of judge was properly denied under the plain language of the rule.  Moreover, the rule would prohibit the second peremptory challenge, in the absence of “adverse or hostile interests,” even if the first challenge had been brought by a different party on the same side before the consolidation.

Presiding Judge Johnsen authored the opinion; Judges Winthrop and Norris concurred.