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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARIZONA COURT OF APPEALS

DIVISION ONE

PUBLIC STORAGE, INC., Petitioner,

v.

THE HONORABLE JOSEPH R. GEORGINI, Judge of the SUPERIOR 

COURT OF THE STATE OF ARIZONA, in and for the County of PINAL, 

Respondent Judge, 

SALLY SCHNEIDER DUNCAN; DAVID DUNCAN; TIFFANY ROBERTS, 

Real Parties in Interest. 

No. 1 CA-SA 22-0222

Petition for Special Action from the Superior Court in Pinal County

No. CV2020-010440

No. CV2020-010510

The Honorable Joseph R. Georgini, Judge

The Honorable Stephen F. McCarville, Judge (retired)

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Lewis Brisbois Bisgaard & Smith LLP, Phoenix

By Sean P. Healy and Robert C. Ashley

Co-Counsel for Petitioner

FILED 2-9-2023
2

Hagens Berman Sobol Shapiro LLP, Phoenix

By Robert B. Carey, John M. DeStefano, and E. Tory Beardsley

Co-Counsel for Real 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 Duncan

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 BACKGROUND

¶2 Public Storage executed storage unit rental agreements with 

petitioners Sally Schneider Duncan, David Duncan, and Tiffany Roberts 

(“renters”). Each renter agreed to arbitrate claims or disputes arising from

their relationship with Public Storage. After a thief stole property from 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 agreements were void because Public Storage 

fraudulently 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 

Ariz. 15, 21, ¶ 22 (App. 2022). We concluded the superior court erred by 

finding the entire rental agreements void and should have instead 

determined whether the arbitration clauses were void. Id. The superior 

court needed to resolve the parties’ dispute about why the renters agreed 

to arbitration. Id. at 21–22, ¶ 24.

¶4 We also stated the renters preserved the argument that the 

arbitration clauses were void “but only by the thinnest of margins.” Duncan, 
PUBLIC v. HON GEORGINI et al.

Decision of the Court

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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 fraudulently induced the 

renters to agree to arbitration.” Id. at 22, ¶ 25.

¶5 On remand, the renters 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) did 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 review 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 dispute 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] directed 

the superior court to reexamine issues it already decided based on evidence 

it never heard.” Id. at 72, ¶ 19.

¶10 On the other hand, in 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 superior 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 proceedings 
PUBLIC 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 125, ¶ 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 Ariz. at 18, 23, ¶¶ 1, 32. We said

submitting evidence or requesting an evidentiary hearing would be “[t]he 

better practice.” Duncan, 253 Ariz. at 21, ¶ 24. But we did not require the 

court to decide the issue based on new evidence. See id. at 21–22, ¶¶ 22–24;

cf. 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, 253 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 arbitration. Such a proceeding would not amount to a new trial 

under Rule 42.1(e). See Anderson, 212 Ariz. at 126, ¶ 14.

¶13 Because this 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.

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CONCLUSION

¶14 We accept jurisdiction but deny relief.