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Feb. 24, 2026 Get Citation Alerts Download PDF Add Note

Total Renal v. Hon moskowitz/brackman

Court of Appeals of Arizona

• Citations: None known
• Docket Number: 1 CA-SA 24-0241

• Precedential Status: Non-Precedential

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (26.3K)

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Combined Opinion

                        by Brian Y. Furuya

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TOTAL RENAL CARE, INC., d/b/a
DESERT MOUNTAIN DIALYSIS CENTER, Petitioner,

v.

THE HONORABLE FRANK W. MOSKOWITZ, Judge of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
Maricopa, Respondent Judge,

MELISSA BRACKMAN, the surviving wife, in her own right and on
behalf of all statutory beneficiaries, and as Personal Representative of the
ESTATE OF CHAD OWEN BRACKMAN, deceased, Real Parties
in Interest.

No. 1 CA-SA 24-0241
FILED 02-24-2026

Appeal from the Superior Court in Maricopa County
No. CV2023-052656
The Honorable Frank W. Moskowitz, Judge

SPECIAL ACTION JURISDICTION ACCEPTED; RELIEF GRANTED
TOTAL RENAL v. HON MOSKOWITZ/BRACKMAN
Decision of the Court

COUNSEL

Jones, Skelton & Hochuli, P.L.C., Phoenix
By David S. Cohen, Rita J. Bustos
Counsel for Petitioner Total Renal Care, Inc.

Coury, Krolls, Dean & DaPena, P.C., Phoenix
By Renee M. Coury, Brianna M. Quinn
Counsel for Petitioner Shefali Gupta, M.D.

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Appellate Counsel for Real Parties in Interest

Anapol Weiss, Scottsdale
By Larry E. Coben, JoAnn Niemi
Counsel for Real Parties in Interest Brackman

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which Judge
James B. Morse Jr. and Vice Chief Judge David D. Weinzweig joined. Judge
Morse also delivered a special concurrence.

F U R U Y A, Judge:

¶1 Total Renal Care, Inc. d/b/a Desert Mountain Dialysis Center
(the “Clinic”) seeks special action review of the superior court’s order
compelling discovery.1

¶2 This case calls upon us to decide whether medical providers
that have never undertaken to provide any services for a non-patient third
party nevertheless owe a duty to that third party when that third party is
struck and killed by the medical provider’s patient with her car after the
patient left the medical provider’s facility. As ordered by our supreme

1 Defendant Shefali Gupta, M.D. joined the Clinic’s petition for special
action and its reply in support thereof.

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TOTAL RENAL v. HON MOSKOWITZ/BRACKMAN
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court, we reconsider our prior decision. We accept special action
jurisdiction and grant relief.

FACTS AND PROCEDURAL HISTORY

¶3 This special action stems from a wrongful death suit brought
against the Clinic by Melissa Brackman (“Plaintiff”) after the death of her
husband. The Clinic has no direct relationship with the decedent. Rather,
the Clinic treated dialysis patient Julia Contreras-Gonzalez immediately
prior to the car accident that killed Plaintiff’s husband. Plaintiff alleges the
Clinic caused the accident by negligently releasing Contreras-Gonzalez to
drive while impaired after treatment.

¶4 The Clinic moved to dismiss the suit, arguing it owed
Plaintiff’s husband no duty due to a lack of a direct relationship between
them. Plaintiff then requested that the Clinic’s motion to dismiss be
converted into a motion for summary judgment and requested relief
pursuant to Arizona Rule of Civil Procedure 56(d) to allow for discovery
into the Clinic’s duty of care under Restatement (Second) of Torts § 324A
(“Liability to Third Person for Negligent Performance of Undertaking”).
The court agreed with Plaintiff and ordered that discovery proceed as to
the question of whether and how the Clinic assumed a duty by taking
charge of Contreras-Gonzalez. Thereafter, the Clinic petitioned for special
action relief.

¶5 We declined special action jurisdiction on November 13, 2024,
but our supreme court vacated the initial order and remanded the cause to
us “for reconsideration in light of the Restatement (Second) of Torts § 324A
as set forth in Dabush v. Seacret Direct, LLC, 250 Ariz. 264, 272–73 (2021), and
Collette v. Tolleson Unified School District No. 214, 203 Ariz. 359 (App. 2003).”
Total Renal v. Moskowitz/Brackman, CV-24-0294-PR, 2025 WL 1021587, at *1
(Ariz. Apr. 2, 2025). We requested additional briefing and now decide the
case as follows.

DISCUSSION

I. We Accept Special Action Jurisdiction.

¶6 We may exercise special action jurisdiction when a petitioner
lacks a remedy by appeal that is “equally plain, speedy, and adequate.”
Ariz. R.P. Spec. Act. 12(a). The decision of whether to grant special action
jurisdiction “is ‘highly discretionary,’” Yauck v. W. Town Bank & Tr., 259
Ariz. 481, 485 ¶ 12 (App. 2025), “unless a statute or an order requires the
court to accept jurisdiction[,]” Ariz. R.P. Spec. Act. 12(a).

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TOTAL RENAL v. HON MOSKOWITZ/BRACKMAN
Decision of the Court

¶7 Here, our supreme court ordered us to re-examine this special
action petition, so we accept jurisdiction. Id.

II. As a Matter of Law, the Clinic Did Not Voluntarily Assume a Duty
to the Decedent Under Restatement (Second) of Torts Section 324A
(“Section 324A”) as applied by Collette and Dabush.

¶8 A plaintiff must prove four elements to prevail on an ordinary
negligence claim: (1) the defendant had a duty to conform to a certain
standard of care, (2) the defendant breached that duty, (3) a causal
connection existed between the defendant’s conduct and the resulting
injury, and (4) damages occurred. Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9
(2007).

¶9 The plaintiff bears the burden of establishing a legal duty,
which is a threshold issue in maintaining any negligence claim. Quiroz v.
ALOCA Inc., 243 Ariz. 560, 563–64 ¶¶ 2, 7 (2018). Whether a duty exists is a
question of law, “determined before the case-specific facts are considered.”
Id. at 564 ¶ 7 (quoting Gipson, 214 Ariz. at 145 ¶ 21). A legal duty arises
when there is a special relationship between parties. Id. at 563, 565 ¶¶ 2, 14.
A legal duty may also be based on public policy, which arises from Arizona
state statutes, federal statutes, or the common law. Id. at 565 ¶¶ 14–15. We
review a superior court’s determination of whether a duty exists de novo.
Id. at 564 ¶ 7.

¶10 Here, Plaintiff argues that Section 324A creates a duty in this
case, and therefore discovery is needed on this issue. The Clinic responds
that Section 324A does not apply to pre-existing duties and the Clinic did
not assume a duty to the decedent. The Clinic contends that all facts
necessary to determine the issue are present, the facts demonstrate the
Clinic owed no duty to the Plaintiff’s husband, and therefore the case
should be dismissed. We address the issue of duty under Section 324A as
follows.

¶11 “Arizona has adopted Restatement (Second) of Torts § 324A
with respect to a negligent undertaking (or assumed duty).” Dabush, 250
Ariz. at 272 ¶ 36. Section 324A provides that:

One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of a third person or his things, is subject to liability to the
third person for physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if

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TOTAL RENAL v. HON MOSKOWITZ/BRACKMAN
Decision of the Court

(a) his failure to exercise reasonable care increases the risk of such
harm, or

(b) he has undertaken to perform a duty owed by the other to the
third person, or

(c) the harm is suffered because of reliance of the other or the third
person upon the undertaking.

¶12 Collette and Dabush apply this section, so we re-examine this
special action in light of these two cases.

A. The Clinic had a pre-existing duty to its patient under the
doctor-patient special relationship and therefore did not
voluntarily assume a duty under Section 324A, as described
in Collette.

¶13 In Collette, plaintiffs brought suit against a school district
when they were injured in a car accident by students who had driven off
campus during their lunch hour in violation of the District’s modified
closed-campus policy. 203 Ariz. at 830–31 ¶¶ 3–5. The modified closed-
campus policy allowed certain students to leave campus at lunch with their
parents’ permission. Id. at 830 ¶ 4. The Collette plaintiffs argued that the
District’s policy meant the District assumed a duty to protect the general
public from the negligent driving of students who left campus, as set forth
in Section 324A. Id. at 831, 835 ¶¶ 8, 31. But we held that Section 324A did
not apply because the section “operates to create a duty from a voluntary
undertaking by one who otherwise has no duty to act.” Id. at 836 ¶ 32 (emphasis
added). And “[t]he District’s duty in promulgating and enforcing a
modified closed-campus policy for its students was not voluntarily
assumed, but already existing.” Id. Therefore, Section 324A was not
applicable. Id.

¶14 Here, the Clinic already had an existing duty under the
doctor-patient special relationship to its patient Contreras-Gonzalez. See,
e.g., Stanley v. McCarver, 208 Ariz. 219, 223 ¶ 12 (2004) (observing that
Arizona courts have accepted “the sufficiency of the [doctor-patient]
relationship as a basis for imposing a duty”). The Clinic had a duty to
Contreras-Gonzalez while she was in its care, maybe even to monitor her
ability to drive safely. But any duty to monitor, as a part of the Clinic’s pre-
existing duty to its patient, did not extend beyond Contreras-Gonzalez to
unknown third parties. Instead, it related exclusively to Contreras-
Gonzalez’s own safety. And similar to the pre-existing duty the District had
to its students in Collette, because the doctor-patient duty between the Clinic

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TOTAL RENAL v. HON MOSKOWITZ/BRACKMAN
Decision of the Court

and Contreras-Gonzalez was pre-existing, the Clinic cannot be said to have
voluntarily assumed a duty to the decedent (a third party) on the facts here.
As a result, Section 324A does not apply here.

B. Plaintiff has not shown that the Clinic undertook services
for the purpose of protecting the decedent, or any other
third-party, as required by Dabush.

¶15 In Dabush, a plaintiff was injured after falling through a
skylight on the roof of a multi-tenant commercial building. 250 Ariz. at 266
¶ 1. The Dabush plaintiff sued two sublessees of the building, claiming they
were possessors of the roof and therefore owed him a duty to maintain the
roof in a safe condition. Id. Dabush asserted that the defendants, by
conducting repairs to the roof and other sections of the building, had
assumed a duty of care regarding the condition of the roof under Section
324A. Id. at 272 ¶ 36.

¶16 The Dabush court stated “an assumed duty is limited to the
extent of the specific undertaking[,]” id. at 272 ¶ 38, thereby narrowing
application of Section 324A. The Dabush court further limited Section 324A
by explaining that “the scope of any assumed duty must be limited to the
performance of the service undertaken and can be no broader than the
undertaking actually assumed.” Id. at 273 ¶ 38 (citation modified). Further,
“the nature of the services undertaken must be for the specific purpose of
protecting a third party (or their things) from harm” to establish
assumption of a duty under Section 324A. Id. at 273 ¶ 39 (citations omitted).
Because the Dabush plaintiff failed to present evidence showing that the
defendants had assumed a duty to protect him from harm, the supreme
court held that the plaintiff could not show that the sublessee defendants
had assumed a duty under Section 324A. Id. at 273 ¶ 40.

¶17 So too here, Plaintiff has not presented evidence that the
Clinic assumed a duty for the specific purpose of protecting the decedent
from harm. Any such assumed duty must be express and specific to the
party, as required by Dabush. Id. at 272–73 ¶¶ 37, 39. Nothing in the
pleadings allege anything related to the assumption of duty specific to the
decedent. The pleadings do not suggest that the services undertaken by the
Clinic to care for Contreras-Gonzalez were performed for the specific
purpose of protecting any third party from harm, let alone the decedent.
Thus, the pleadings do not indicate that the Clinic assumed a duty to
protect the decedent from harm, and the Plaintiff cannot show that the
Clinic assumed a duty under Section 324A.

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TOTAL RENAL v. HON MOSKOWITZ/BRACKMAN
Decision of the Court

¶18 The court erred in denying the motion to dismiss and
ordering discovery. No discovery is warranted on the issue. Therefore, we
vacate the court’s order denying the motion to dismiss and its order for
further discovery. We remand with instructions for the court to enter an
order granting the Clinic’s motion and dismissing the case.

CONCLUSION

¶19 We accept jurisdiction and grant relief.

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TOTAL RENAL v. HON MOSKOWITZ/BRACKMAN
Decision of the Court

M O R S E, Judge, specially concurring:

¶20 I agree with the decision on the merits. I also acknowledge
that our supreme court can, pursuant to RPSA 12(a), direct us to exercise
special-action jurisdiction without finding that we abused our discretion in
declining jurisdiction. I write separately, however, to emphasize that our
initial decision to decline special-action jurisdiction was consistent with
both Arizona’s special-action rules and long-established special-action
jurisprudence.

¶21 The decision “[w]hether to accept jurisdiction of an appellate
special action is within the court’s discretion, unless a statute or an order
requires the court to accept jurisdiction.” RSPA 12(a). The special-action
rules provide that special-action jurisdiction is appropriate only when the
petitioner has no plain, speedy, and adequate remedy through appeal.
RPSA 2(b)(2); 12(a). To assist us in exercising our discretion, the rules
provide factors to “determine whether there is no ‘plain, adequate and
speedy remedy.’” RPSA 12 cmt. (2025). Thus, the new special-action rules
provide that the foundational issue in deciding to exercise special-action
jurisdiction is whether there is an equally plain, speedy, and adequate
remedy by appeal.

¶22 Fortunately, the special-action rules provide guidance to help
determine when a remedy by way of appeal meets those criteria. One factor
that supports the exercise of discretion to accept special-action jurisdiction
is “efficient management of the case, other than issues presented by
ordinary dispositive motion practice.” RPSA 12(b)(7). The clear implication
is that efficient case management is not a factor favoring jurisdiction if the
underlying issue involves “ordinary dispositive motion practice.” This is
later confirmed by the statement that decisions involving “Rules 12(b)(6),
12(c), or 56 of the Rules of Civil Procedure, or Rules 29(a)(6) or 79 of the
Rules of Family Law Procedure” are an explicit factor against exercising
special-action jurisdiction. RPSA 12(c)(2).

¶23 The special-action rules are consistent with long-standing
caselaw recognizing that “[s]pecial actions may not be used as a substitute
for an appeal.” Jordan v. Rea, 221 Ariz. 581, 586, ¶ 8 (App. 2009) (citing Neely
v. Rodriguez, 165 Ariz. 74, 76 (1990) (affirming the “strong Arizona policy
against using extraordinary writs as substitutes for appeals”)). A remedy
by appeal is sufficient even if a party must continue with the litigation. See
Caruso v. Superior Court, 100 Ariz. 167, 171 (1966) (“Of course, there is
expense and delay in being put to a trial and then an appeal. But these facts
alone will not justify issuing the writ.”); Neary v. Frantz, 141 Ariz. 171, 177

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Decision of the Court

(App. 1984) (finding special-action relief was not warranted because a
“remedy does not become inadequate merely because more time would
transpire by pursuing a conventional action”) (citing Rhodes v. Clark, 92
Ariz. 31, 38 (1962)). And, as our supreme court has noted, there are sound
reasons to avoid special-action review of interlocutory orders before final
judgment. See Citizen Publ’g Co. v. Miller, 210 Ariz. 513, 516, ¶ 7 (2005)
(explaining that the approach promotes judicial efficiency, avoids
piecemeal appeals, and respects the trial court’s role).

¶24 For those reasons, our courts have long adhered to the general
policy of declining special-action jurisdiction over denials of dispositive
motions. E.g., id. (“It follows that we will rarely review the court of appeals’
discretionary refusal to accept jurisdiction of a special action challenging
the denial of a motion to dismiss or motion for summary judgment.”); Florez
v. Sargeant, 185 Ariz. 521, 524 (1996) (“We acknowledge that special action
relief from the denial of summary judgment is almost always
inappropriate.”); United States v. Superior Court, 144 Ariz. 265, 269 (1985)
(“[B]ecause relief by special action is largely discretionary, we follow a
general policy of declining jurisdiction when relief by special action is
sought to obtain review of orders denying motions to dismiss or for
summary judgment.”). As noted above, the RPSA factors disfavoring
special-action jurisdiction for dispositive-motion issues are consistent with
this body of case law.

¶25 Of course, if a special-action petition presents issues of
statewide importance or questions of first impression, we can exercise our
discretion to accept special-action jurisdiction. See, e.g., Phoenix Union High
Sch. Dist. No. 210 v. Sinclair, ___ Ariz. __, __ ¶¶ 6, 26, 572 P.3d 80, 82–83
(2025) (exercising special-action jurisdiction because an issue was one of
first impression and statewide importance); CVS Pharmacy, Inc. v. Bostwick,
251 Ariz. 511, ¶ 9 (2021) (exercising special-action jurisdiction because the
case involved “issues of statewide importance” related to massive opioid-
liability litigation). But any case in which our court interprets a law, rule, or
common-law doctrine could have statewide importance. That is the very
nature of precedent. See, e.g., Torres v. JAI Dining Services (Phoenix), Inc., 256
Ariz. 212, 215–18, ¶¶ 8–18 (2023) (discussing the role of precedent in
developing the common law); see also Gilpin v. Harris, 258 Ariz. 61, 63, ¶ 5
(2024) (accepting special-action jurisdiction to decide whether a guilty-
except insane verdict allowed a crime victim to seek restitution); Sholem v.
Gass, 248 Ariz. 281, 285, 287–88, ¶¶ 7, 26–28 (2020) (exercising special-action
jurisdiction to resolve conflicts in the Arizona Rules of Civil Procedure).
While the special-action rules note “statewide importance” and “issues of
first impression” as factors for exercising special-action jurisdiction, the

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TOTAL RENAL v. HON MOSKOWITZ/BRACKMAN
Decision of the Court

rules also provide that any of those “factors support but do not require
accepting jurisdiction.” RPSA 12(b). If we have discretion to exercise or
decline our special-action jurisdiction, we may decline jurisdiction even in
cases of first impression or statewide importance, especially when the
petitioner has a remedy by way of appeal.

¶26 That is why I am puzzled by the supreme court’s decision to
vacate our order declining jurisdiction and direct us, without explanation,
to decide this case.2 As outlined above, supra ¶¶ 4–6, this case involves the
trial court’s decision to deny a motion to dismiss and allow limited
discovery on the issue of duty. This type of case—vehicle-accident
litigation—does not appear to present the kind of circumstances that would
mandate deviating from the general rule against special-action review of
dispositive motions. See, e.g., Harris v. Warner, 255 Ariz. 29, 31–32, ¶ 7 (2023)
(accepting special-action jurisdiction in a politically charged defamation
case where “denying Petitioners’ motion to dismiss” was “an issue of
statewide importance”); CVS Pharmacy, Inc., 251 Ariz. at 515, ¶ 9 (granting
special-action jurisdiction to decide what duty pharmacies may owe
regarding the distribution of opioids). Although duty is generally a
question of law, it may rest on disputed facts that require development of
the record. See Perez v. Circle K Convenience Stores, Inc., 259 Ariz. 221, 228, ¶
20 (2025) (“sometimes certain antecedent facts must be considered in
determining whether a duty exists”); cf. also Dobson v. State ex rel., Comm’n
on App. Ct. Appointments, 233 Ariz. 119, 121, ¶ 7 (2013) (noting that special-
action jurisdiction is not appropriate to resolve disputed facts). Moreover,
our courts have long said that “special action relief is inappropriate for
resolving discovery disputes,” that do not involve privilege. Yuma Reg’l
Med. Ctr. v. Superior Court, 175 Ariz. 72, 74 (App. 1993); see, e.g., Jolly v.
Superior Court of Pinal Cnty., 112 Ariz. 186, 188 (1975) (stating that special-
action relief over discovery issues “shall be exercised only in ‘rare’ cases, as
a matter of sound discretion according to the nature and circumstances of
the case”).

¶27 While I am happy to follow our supreme court’s direction and
address the merits of this petition, I do not interpret the supreme court’s
directive to mean that we abused our discretion in declining jurisdiction.

2 And a small handful of other recent cases. See Kuerschner v.
Kuerschner, CV 25-3034-PR, 2026 WL 384157 (Feb. 11, 2026) (decision order);
State v. Greene, CR 25-0190-PR, 2025 WL 2606156 (Sept. 9, 2025) (decision
order); Cervantes v. State, CR 25-0204-PR (Nov. 25, 2025), 2025 WL 3301142
(decision order).

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TOTAL RENAL v. HON MOSKOWITZ/BRACKMAN
Decision of the Court

When our decision is supported by the factors outlined in RPSA 12(c), we
may decide to decline jurisdiction.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

11