AZAPP is a blog that provides a thorough, up-to-date, and efficient resource to stay abreast of significant developments concerning civil cases in Arizona's appellate courts - the two Divisions of the Arizona Court of Appeals and the Arizona Supreme Court.
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Tuesday, November 30, 2004
Articles: Division One Rulings on Sex Offender and Search Warrant Procedures
An article on azcentral.com summarizes a recent Division One decision in which the Court held that the State is not permitted to procure additional evaluation reports regarding a sexually-violent person’s need for extended detention, following the issuance of a report indicating that the person is not sexually violent, without “necessary and proper justification.” Another article reports on a recent Division One decision holding that under the statute giving the police five days to serve a search warrant after it is issued, the five-day period is measured in calendar days, rather than business days.
An article on azcentral.com summarizes a recent Division One decision in which the Court held that the State is not permitted to procure additional evaluation reports regarding a sexually-violent person’s need for extended detention, following the issuance of a report indicating that the person is not sexually violent, without “necessary and proper justification.” Another article reports on a recent Division One decision holding that under the statute giving the police five days to serve a search warrant after it is issued, the five-day period is measured in calendar days, rather than business days.
Posted by azapp @ Tue, Nov 30, 2004
Arizona v. American Support Foundation: Division One Holds that Tax Protest Materials were Improperly Admitted in Condemnation Proceeding
The State initiated condemnation proceedings against a commercial building to make room for a freeway interchange. The owner had in previous years filed (through an agent) a series of tax protests, in which it took the position that the building was worth less than the value assessed for tax purposes. The owner filed a motion seeking to prevent the State from introducing documents from these tax protests in the condemnation proceeding. The trial court, however, permitted the State to show the jury documentation reflecting the owner’s “statements of value” respecting the building in the tax protests. The owner argued in the condemnation proceeding that the building’s value was actually much greater than was reflected in these “statements of value,” but the jury found the building’s value to be a little more than half the value urged by the owner. Both sides appealed from the judgment awarding damages in that amount. The Court of Appeals held that the trial court had erred in permitting the information from the owner’s tax appeals to be admitted. The Court stressed that the “distinct purposes and processes of the property tax system make valuations prepared for that system unreliable for other purposes.” The Court also noted, however, that it was not creating a per se rule against the admission of such information, and that trial courts have the discretion to admit such evidence “if the proponent of the information can show that the valuations were prepared to show market value as that term is used in condemnation actions or actually reflects the owner’s opinion as to market value for non-tax purposes.”
The parties also required the Court to resolve a dispute over who should pay the property taxes owing on the property for the portion of the year after the State took possession. The State argued that the owner was required to pay these taxes pursuant to A.R.S. 37-804(A). The Court disagreed, noting that the statute referred to taxes that were “unpaid” or “delinquent.” Instead, the Court held, the question of who owed the tax should be resolved by reference to the “basic condemnation concept” of paying the property owner the amount of money necessary to put the owner in as good a position as if the property had not been taken. Thus, the owner could claim in damages any tax payment that it made with respect to periods of time after the State took possession.
The opinion was authored by Judge Irvine and joined by Judges Erlich and Winthrop.
The State initiated condemnation proceedings against a commercial building to make room for a freeway interchange. The owner had in previous years filed (through an agent) a series of tax protests, in which it took the position that the building was worth less than the value assessed for tax purposes. The owner filed a motion seeking to prevent the State from introducing documents from these tax protests in the condemnation proceeding. The trial court, however, permitted the State to show the jury documentation reflecting the owner’s “statements of value” respecting the building in the tax protests. The owner argued in the condemnation proceeding that the building’s value was actually much greater than was reflected in these “statements of value,” but the jury found the building’s value to be a little more than half the value urged by the owner. Both sides appealed from the judgment awarding damages in that amount. The Court of Appeals held that the trial court had erred in permitting the information from the owner’s tax appeals to be admitted. The Court stressed that the “distinct purposes and processes of the property tax system make valuations prepared for that system unreliable for other purposes.” The Court also noted, however, that it was not creating a per se rule against the admission of such information, and that trial courts have the discretion to admit such evidence “if the proponent of the information can show that the valuations were prepared to show market value as that term is used in condemnation actions or actually reflects the owner’s opinion as to market value for non-tax purposes.”
The parties also required the Court to resolve a dispute over who should pay the property taxes owing on the property for the portion of the year after the State took possession. The State argued that the owner was required to pay these taxes pursuant to A.R.S. 37-804(A). The Court disagreed, noting that the statute referred to taxes that were “unpaid” or “delinquent.” Instead, the Court held, the question of who owed the tax should be resolved by reference to the “basic condemnation concept” of paying the property owner the amount of money necessary to put the owner in as good a position as if the property had not been taken. Thus, the owner could claim in damages any tax payment that it made with respect to periods of time after the State took possession.
The opinion was authored by Judge Irvine and joined by Judges Erlich and Winthrop.
Posted by azapp @ Tue, Nov 30, 2004
Additional Briefs for Safeway v. Guerrero Case
Below are links to the two amicus briefs filed in Safeway v. Guerrero, which will be heard by the Supreme Court this Thursday.
AzTLA Amicus Brief
United Policyholders Amicus Brief
Other briefs are available at this previous post. The underlying Division One decision is covered in this previous post.
According to the Oral Argument Schedule, Vice-Chief Justice McGregor will not be sitting in the Safeway case; Judge Pelander of Division Two will be sitting in her stead.
Below are links to the two amicus briefs filed in Safeway v. Guerrero, which will be heard by the Supreme Court this Thursday.
AzTLA Amicus Brief
United Policyholders Amicus Brief
Other briefs are available at this previous post. The underlying Division One decision is covered in this previous post.
According to the Oral Argument Schedule, Vice-Chief Justice McGregor will not be sitting in the Safeway case; Judge Pelander of Division Two will be sitting in her stead.
Posted by azapp @ Tue, Nov 30, 2004
Tuesday, November 23, 2004
Article: Division One holds that Lack of Jury Findings to Support Sentence Enhancement Does not Necessarily Entitle Defendant to Resentencing
An article on azcentral.com reports on Division One's recent decision in State v. Henderson, holding that the lack of jury findings to support a sentence enhancement does not necessarily entitle the defendant to a resentencing. The decision applied the holding and analysis of the U.S. Supreme Court's recent decision in Blakely v. Washington, which held that a defendant's jury-trial rights were violated when his sentence was enhanced based on judge-made findings.
An article on azcentral.com reports on Division One's recent decision in State v. Henderson, holding that the lack of jury findings to support a sentence enhancement does not necessarily entitle the defendant to a resentencing. The decision applied the holding and analysis of the U.S. Supreme Court's recent decision in Blakely v. Washington, which held that a defendant's jury-trial rights were violated when his sentence was enhanced based on judge-made findings.
Posted by azapp @ Tue, Nov 23, 2004
Monday, November 22, 2004
Safeway Ins. v. Guerrero Briefing
Oral argument in the Safeway Ins. v. Guerrero case is scheduled for December 2nd at 9:30 a.m. before the Arizona Supreme Court. The Court has taken review of this Division One decision, covered in a previous post, which held held that an attorney may be held liable for intentional interference with contract if the attorney pursues a Damron/Morris agreement outside the parameters permitted by the Damron/Morris line of cases.
Below are links to the Supreme Court briefing.
Petition for Review
Response to Petition for Review
Petitioner's Supplemental Brief (merits brief)
Respondent's Supplemental Brief (merits brief)
Oral argument in the Safeway Ins. v. Guerrero case is scheduled for December 2nd at 9:30 a.m. before the Arizona Supreme Court. The Court has taken review of this Division One decision, covered in a previous post, which held held that an attorney may be held liable for intentional interference with contract if the attorney pursues a Damron/Morris agreement outside the parameters permitted by the Damron/Morris line of cases.
Below are links to the Supreme Court briefing.
Petition for Review
Response to Petition for Review
Petitioner's Supplemental Brief (merits brief)
Respondent's Supplemental Brief (merits brief)
Posted by azapp @ Mon, Nov 22, 2004
Friday, November 19, 2004
Suit Filed Seeking Expansive Application of Prop. 200
The Arizona Republic reports that Prop. 200 proponents have filed suit seeking to force government agencies to apply Prop. 200 to public benefits beyond welfare, including, public housing, food assistance, college education and employment benefits.
As noted in a previous posting, the Attorney General has opined that Prop. 200 only applies to welfare benefits.
The Arizona Republic reports that Prop. 200 proponents have filed suit seeking to force government agencies to apply Prop. 200 to public benefits beyond welfare, including, public housing, food assistance, college education and employment benefits.
As noted in a previous posting, the Attorney General has opined that Prop. 200 only applies to welfare benefits.
Posted by azapp @ Fri, Nov 19, 2004
Monday, November 15, 2004
Prop 200 Attorney General's Opinion Released
The Attorney General has issued an opinion that"state and local public benefits" under Prop. 200 are those welfare programs under ARS Title 46 that qualify as state and local public benefits under federal law.
The Attorney General has issued a press release regarding the opinion in both English and Spanish.
The Attorney General has issued an opinion that"state and local public benefits" under Prop. 200 are those welfare programs under ARS Title 46 that qualify as state and local public benefits under federal law.
The Attorney General has issued a press release regarding the opinion in both English and Spanish.
Posted by azapp @ Mon, Nov 15, 2004
Thursday, November 4, 2004
Article: Petition to Arizona Supreme Court Regarding Disclipline of Judges
An article appearing on azcentral.com reports that the Maricopa County Attorney's Office has filed a petition in the Arizona Supreme Court seeking broader public disclosure of disciplinary measures taken against judges.
An article appearing on azcentral.com reports that the Maricopa County Attorney's Office has filed a petition in the Arizona Supreme Court seeking broader public disclosure of disciplinary measures taken against judges.
Posted by azapp @ Thu, Nov 4, 2004
Orfaly v. Tucson Symphony Society: Division Two Holds That Labor Agreement Providing For Payment Of Salary Over 26 Equal Pay Periods Does Not Violate A.R.S. 23-351(C) Even Where Work Was Completed After Only 9 Months.
Appellants were salaried musicians for the Tucson Symphony Orchestra. Under their labor agreement with the Symphony, Appellants agreed to be paid their salaries in 26 bi-weekly installments from September 1 to August 31 of each year. The final performances of the symphony seasons in dispute were in May of 2001 and May of 2002. In each year, Appellants were paid in full by the end of August in accordance with the agreement. A.R.S. 23-351(C) requires payment of all wages due up to the payday. Appellants claimed that they were entitled to the balance of their compensation on the payday following the final performance of the season and that the Symphony violated A.R.S. 23-351(C) by following the terms of the agreement. The Superior Court granted summary judgment in favor of the Appellees and awarded them attorney's fees as the prevailing party under A.R.S. 12-341.01.
Division Two noted that the definition of wages in A.R.S. 23-350(5) "is based upon compensation that an employee has a reasonable expectation to be paid." Affirming the Superior Court's summary judgment, the Court of Appeals held that nothing in the language of 23-350(5) or 23-351 prevents parties of relatively equal bargaining power from agreeing to be paid over a 12 month period for work performed over a shorter span of time.
Affirming the award of fees, the Court held that such an award is left to the sound discretion of the trial court and that because a reasonable basis for the fee award was present under the factors announced in Associated Indemnity Corp. v. Warner, 694 P.2d 1181, 1184 (Ariz. 1995), the Superior Court did not abuse its discretion in awarding fees.
Chief Judge Pelander penned the opinion of the Court and was joined by Judges Florez and Espinoza.
Appellants were salaried musicians for the Tucson Symphony Orchestra. Under their labor agreement with the Symphony, Appellants agreed to be paid their salaries in 26 bi-weekly installments from September 1 to August 31 of each year. The final performances of the symphony seasons in dispute were in May of 2001 and May of 2002. In each year, Appellants were paid in full by the end of August in accordance with the agreement. A.R.S. 23-351(C) requires payment of all wages due up to the payday. Appellants claimed that they were entitled to the balance of their compensation on the payday following the final performance of the season and that the Symphony violated A.R.S. 23-351(C) by following the terms of the agreement. The Superior Court granted summary judgment in favor of the Appellees and awarded them attorney's fees as the prevailing party under A.R.S. 12-341.01.
Division Two noted that the definition of wages in A.R.S. 23-350(5) "is based upon compensation that an employee has a reasonable expectation to be paid." Affirming the Superior Court's summary judgment, the Court of Appeals held that nothing in the language of 23-350(5) or 23-351 prevents parties of relatively equal bargaining power from agreeing to be paid over a 12 month period for work performed over a shorter span of time.
Affirming the award of fees, the Court held that such an award is left to the sound discretion of the trial court and that because a reasonable basis for the fee award was present under the factors announced in Associated Indemnity Corp. v. Warner, 694 P.2d 1181, 1184 (Ariz. 1995), the Superior Court did not abuse its discretion in awarding fees.
Chief Judge Pelander penned the opinion of the Court and was joined by Judges Florez and Espinoza.
Posted by azapp @ Thu, Nov 4, 2004
