NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEAL S

D IVISION O NE

PUBLIC STORAGE, INC.
, P etitioner
,

v.

THE HONORABLE JOSEPH R. GEORGINI , Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA , in and for the County of P INAL , Respondent Judge
,
SALLY SCHNEIDER DUNCAN; DAVID DUNCAN; TIFFANY ROBERTS
, Real Parties in Interest.

N o . 1 CA

- SA 22

- 0 222

Petition for Special Action from the Superior Court in Pinal County No. CV 2020

- 010440 No. CV2020

- 010510 The Honorable Joseph R. Georgini
, Judge The Honorable Stephen F. McCarville, Judge (retired)

JURISDICTION ACCEPTED ; RELIEF DENIED

COUNSE L
Lewis Brisbois Bisgaard & Smith LLP , Phoenix By Sean P. Healy and Robert C. Ashley Co

- Counsel for Petitioner FILED 2-9-20232

Hagens Berman Sobol Shapiro LLP
, Phoenix By Robert B. Carey , John M. DeStefano, and E. Tory Beardsley C o

- Co unsel for Re al Party in Interest Tiffany Roberts

Osborn Maledon PA, Phoenix By Geoffrey M.T. Sturr Counsel for Real Parties in Interest Sally Schneider Duncan and David Dun can

MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision , in which Presiding Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.

M c M U R D I E , Judge:

¶1 Public Storage, Inc. petitions for special action and seeks reversal of the superior court’s denial of its notice of change of judge under Arizona Rule of Civil Procedure Rule 42.1(e). We grant review but deny relief.

FACTS AND PROCEDURAL BACK G ROUND

¶2 Public Storage executed storage unit rental agreements with
p etitioners Sally Schneider Duncan , David Duncan
, and Tiffany Roberts (“ r enters”). Each rent er agreed to arbitrate claims or disputes arising from the ir relationship with Public Storage. After a thief stole property fro m their units , the renters sued Public Storage

. Public Storage moved to dismiss and compel arbitration. The superior court denied Public Storage ’s motion , finding that the rental agreement s were void because Public Storage fra udulently induced the renters to enter them. Public Storage appealed.

¶3 On appeal, this court held that the superior court’s ruling conflicted with the separability doctrine. Duncan v. Public Storage , Inc. , 253 A r iz. 15, 21 , ¶ 22 (App. 2022). We concluded the superior court erre d by finding the entire rental agreement s void and should have instead determined whether the arbitration clause s w ere void. Id. The superior court needed to resolve the parties’ dispute a bout why the renters agreed
to arbitration. Id. at 21

– 22 , ¶ 24.

¶4 We also s tated the renters preserved the argument that the arbitration clause s w ere void “but only by the thinnest of margins.” Duncan ,PUBLIC v. HON GEORGINI et al. Decision of the Court

3 253 Ariz. at 21, ¶ 24. We noted
, “[t]he better practice is to submit evidence or to request an evidentiary hearing.” Id. We remanded for the superior court to determine “whether Public Storage f raudulently induced the renters to agree to arbitration.” Id. at 22, ¶ 25.

¶5 On remand, the rent ers requested an evidentiary hearing on the issue

. In response , Public Storage filed a notice of change of judge as of right , citing Rule 42.1(e). After the parties fully briefed the issue, the superior court denied Public Storage’s motion for a change of judge. The court found that Rule 42.1(e) d id not apply because “no new trial was ordered ” by the appellate court.

¶6 Public Storage petitioned for special action. We accept jurisdiction because “the issue here is solely a question of law” and “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 (App. 2006).

DISCUSSION

¶7 “We re view the denial of a change of judge as of right for an abuse of discretion , but [we] review the court’s interpretation of [Rule 42.1(e) 

### ] de novo .” Smith , 214 Ariz. at 80, ¶ 5.

¶8 “In actions remanded from an appellate court, the right to a change of judge is renewed . . . if the appellate decision requires a new trial” and if the party requesting a change of judge has not already exercised this right. Ariz. R. Civ. P. 42.1(e). Public Storage has not previously exercised this right. The parties dis pute whether this court’s directions on remand “require[] a new trial” under Rule 42.1(e).

¶9 Rule 42.1(e) “turns on what the superior court must do after the appeal . . . to resolve the error.” Coffee v. Ryan

- Touhill
, 247 Ariz. 68, 73, ¶ 22 (App. 2019). In Coffee
, this court remanded a superior court order and directed the superior court to conduct an evidentiary hearing and redetermine the issue

. Id. at 70

– 71, ¶ 8. The decision renewed the petitioner’s “right to change trial judges under 42.1(e) because [it] direct ed the superior court to reexamine issue s it already decided based on evidence it never heard.” Id. at 72, ¶ 19.

¶10 On the other hand, i n Anderson v. Contes
, the appellate court’s remand did not renew the right to a new judge because the appellate court did not order the superio r court to revisit issues based on new evidence

. 212 Ariz. 122, 125

– 26 , ¶¶ 9, 14 (App. 2006). Rather, the court remanded for “further proceedings” that were merely a “continuation of the proceedingsPUBLIC v. HON GEORGINI et al. Decision of the Court

4 already held .” Id. at 125, ¶ 9

. Because the court’s “remand was based on the insufficiency of the trial court’s explanations, and not the insufficiency of the evidence
, ” the appellate decision did not require a new trial

. Id. at 126, ¶ 14.

¶11 “[O]ur appellate courts have frequently exercised [the power to remand ] for further proceedings that do not require complete retrial of an issue but are more limited in focus, such as . . . an application of the correct legal standard based on the evidence already received.” Anderson
, 212 Ariz. at 12 5 , ¶ 10. Holding the court failed to apply the separability doctrine, we vacated and remanded the denial of Public Storage’s motion to compel arbitration so that the superior court could examine whether the rental agreements’ arbitration clauses, rather than the entire rental agreements, were enforceable

. Duncan , 253 A riz. at 1 8
, 23, ¶ ¶ 1, 32. We said submitting evidence or requesting an evidentiary hearing would be “[t]he better pr actice

. ” Duncan , 253 Ariz. at 2 1 , ¶ 24 . But we did not require the court to decide the issue based on new evidence. See id. at 21

– 22, ¶¶ 22

– 24;

c f. Coffee v. Ryan

- Touhill
, No. 1 CA

- SA 18

- 0217, 2018 WL 5117110, at *5 , ¶ 22 (“[W]e remand for the superior court to conduct an appropriate evidentiary hearing.”).

¶12 Though admittedly by thin margins, the renters sufficiently preserved the arbitration clause issue for this court to recommend, rather than require, that evidence be presented

. See Duncan , 25 3 Ariz. at 22, ¶ 24. Because we did not require new evidence on remand, this suggests the superior court could resolve the identified error by clarifying its findings and explaining whether Public Storage fraudulently induced the renters to agree to arbitr ation. Such a proceeding would not amount to a new trial under Rule 42.1(e). See Anderson , 212 Ariz. at 126, ¶ 1 4.

¶13 Because t his court did not “require [] ” a new trial on remand
, Public Storage is not entitled to a change of judge. See Ariz. R. Civ. P. 42.1(e) (1) ( On remand, “the right to a change of judge is renewed . . . if the appellate decision requires a new trial.” ). Thus, the superior court did not abuse its discretion by denying Public Storage’s motion for a change of judge.PUBLIC v. HON GEORGINI et al. Decision of the Court

5 CONCLUSION

¶14 We accep t jurisdiction but deny relief.