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Friday, April 30, 2004
Lemons v. Showcase Motors, Inc.: Division One Remands Implied-Warranty Case for Resolution of Factual Issues.
After the dealer refused to take back a defective used vehicle, Terri Lemons sued the dealer for breach of the implied warranty of merchantability under the Magnuson-Moss Warranty Act, 15 U.S.C. 2310. The trial court granted summary judgment to the dealership, finding that the dealer effectively disclaimed the implied warranty by selling the vehicle "as is--not expressly warranted or guaranteed." The Court of Appeals reversed. The Court noted that the Act treats an attempted disclaimer as ineffective when the seller has entered into a written warranty or service contract with the purchaser. Together with her motion for reconsideration in the trial court, Lemons had submitted evidence she first acquired after the briefing of the summary judgment motion indicating that the dealer may have been a party to a service contract she purchased with another company. Because a resolution of this factual dispute was necessary to determine whether summary judgment was appropriate, the Court remanded the case for further inquiry into the issue.
The decision was authored by Judge Thompson and joined by Judges Snow and Gemmill.
Practice Note: Lemons raised a factual point for the first time in her appeal, but the Court refused to consider it, noting that it could not consider "new factual theories" raised for the first time on appeal from summary judgment.
After the dealer refused to take back a defective used vehicle, Terri Lemons sued the dealer for breach of the implied warranty of merchantability under the Magnuson-Moss Warranty Act, 15 U.S.C. 2310. The trial court granted summary judgment to the dealership, finding that the dealer effectively disclaimed the implied warranty by selling the vehicle "as is--not expressly warranted or guaranteed." The Court of Appeals reversed. The Court noted that the Act treats an attempted disclaimer as ineffective when the seller has entered into a written warranty or service contract with the purchaser. Together with her motion for reconsideration in the trial court, Lemons had submitted evidence she first acquired after the briefing of the summary judgment motion indicating that the dealer may have been a party to a service contract she purchased with another company. Because a resolution of this factual dispute was necessary to determine whether summary judgment was appropriate, the Court remanded the case for further inquiry into the issue.
The decision was authored by Judge Thompson and joined by Judges Snow and Gemmill.
Practice Note: Lemons raised a factual point for the first time in her appeal, but the Court refused to consider it, noting that it could not consider "new factual theories" raised for the first time on appeal from summary judgment.
Posted by azapp @ Fri, Apr 30, 2004
Rep. Renzi Supports Splitting the 9th Circuit into Three Pieces
An article on azcentral.com reports that Rick Renzi, who represents Arizona in the U.S. House of Representatives, supports splitting the 9th Circuit into three pieces. Under the proposed restructiring, California, Hawaii, Guam and the Northern Marianas Islands would remain under the jurisdiction of the 9th Circuit, Arizona, Nevada, Idaho and Montana would form a new 12th Circuit, and Alaska, Oregon and Washington would form a new 13th Circuit.
An article on azcentral.com reports that Rick Renzi, who represents Arizona in the U.S. House of Representatives, supports splitting the 9th Circuit into three pieces. Under the proposed restructiring, California, Hawaii, Guam and the Northern Marianas Islands would remain under the jurisdiction of the 9th Circuit, Arizona, Nevada, Idaho and Montana would form a new 12th Circuit, and Alaska, Oregon and Washington would form a new 13th Circuit.
Posted by azapp @ Fri, Apr 30, 2004
Morgan v. Carillon Investments: Court of Appeals Rules that 90-Day Deadline Does Not Apply to Applications to Vacate or Set Aside Arbitration Awards
A.R.S. § 12-1513(A) imposes a ninety-day deadline to file an application to modify or correct an arbitration award. Subsection (C) says that “[a]n application to modify or correct an award may be jointed in the alternative with an application to vacate the award.” The plaintiffs, in this case, filed their application nearly fourteen months after the award was issued. Disagreeing with a 1974 panel of the Court of Appeals and the trial court, this panel of the Court of Appeals ruled that the ninety-day deadline does not apply to applications to vacate or set aside an arbitration award. The panel engaged in a thorough examination of the statutory text and structure and held that applications to vacate or set aside are governed by A.R.S. § 12-1512, which does not include a ninety-day deadline.
The panel was not persuaded that it should come to a different conclusion in order to support a public policy of encouraging the finality of arbitration. Rejecting this as a call to “judicially legislate,” the court declared that the “legislature . . . did not include [the deadline] and we will not ‘interpret’ these statutes to add such a provision.” In addition, the court noted that under A.R.S. § 12-1511, the prevailing party in an arbitration can trigger a twenty-day deadline by filing application to confirm the award in superior court.
Judge Gemmill wrote the opinion, which Judges Snow and Garbarino joined.
A.R.S. § 12-1513(A) imposes a ninety-day deadline to file an application to modify or correct an arbitration award. Subsection (C) says that “[a]n application to modify or correct an award may be jointed in the alternative with an application to vacate the award.” The plaintiffs, in this case, filed their application nearly fourteen months after the award was issued. Disagreeing with a 1974 panel of the Court of Appeals and the trial court, this panel of the Court of Appeals ruled that the ninety-day deadline does not apply to applications to vacate or set aside an arbitration award. The panel engaged in a thorough examination of the statutory text and structure and held that applications to vacate or set aside are governed by A.R.S. § 12-1512, which does not include a ninety-day deadline.
The panel was not persuaded that it should come to a different conclusion in order to support a public policy of encouraging the finality of arbitration. Rejecting this as a call to “judicially legislate,” the court declared that the “legislature . . . did not include [the deadline] and we will not ‘interpret’ these statutes to add such a provision.” In addition, the court noted that under A.R.S. § 12-1511, the prevailing party in an arbitration can trigger a twenty-day deadline by filing application to confirm the award in superior court.
Judge Gemmill wrote the opinion, which Judges Snow and Garbarino joined.
Posted by azapp @ Fri, Apr 30, 2004
Thursday, April 29, 2004
Article on Division One Resisting-Arrest Case
An article on azcentral.com discusses the argument in a case involving a man convicted of assault after a trial at which the jury was informed that he had a prior conviction, but was not informed that the prior conviction arose out of the same incident as the assault.
An article on azcentral.com discusses the argument in a case involving a man convicted of assault after a trial at which the jury was informed that he had a prior conviction, but was not informed that the prior conviction arose out of the same incident as the assault.
Posted by azapp @ Thu, Apr 29, 2004
Ariz. Dept. of Rev. v. Capitol Castings: The Arizona Supreme Court clarifies the appropriate standard for determining the applicability of the tax exemption in A.R.S. § 42-5159(B)
A.R.S. § 42-5159(B)(1) exempts from tax any "machinery or equipment used directly in manufacturing, processing, fabricating . . . or metallurgical operations." Pursuant to this statute, Capitol Castings, a plant that manufactures items used in mining and other industries, claimed as exempt several metal and non-metal products used in its facilities. The Arizona Department of Revenue ("ADOR") contended that most of the products Capitol used were not exempt because they were not "machinery or equipment" as used in the statute.
The dispute resulted in a long procedural embroilment, including two tax court proceedings, a published court of appeals opinion, a responsive legislative amendment, and a second court of appeals decision. The final appellate decision held that the legislative amendment did not alter the first appellate court's determination of the meaning of the phrase "machinery or equipment," and that the items Capitol claimed as tax-exempt were not. Against this background, the Arizona Supreme Court accepted review. Reviewing both the statutory and generally-accepted meanings of the terms "machinery or equipment," as well as the long procedural history of the case, the court determined that the legislative amendment had intended to reverse the first appellate court decision in its entirety, including its interpretation of the meaning of the term "machinery and equipment." The Court held that the legislative amendment had intended to reinstate a functional approach articulated by a prior court of appeals decision in order to determine the exemption status of materials under § 42-5159(B). That approach allowed some items that would normally not be considered "machinery or equipment" to be tax-exempt if they functioned "as a necessary part of an integrated process." The Court adopted this test, and listed a number of factors a court should consider in making this determination.
Ultimately, the Court held that a number of Capitol's items qualified for the exemption, that some did not, and that still others required remand to the tax court to determine whether the exemption applied.
Justice Berch authored the opinion; Chief Justice Jones, Vice Chief Justice McGregor, and Justices Ryan and Hurwitz concurred.
A.R.S. § 42-5159(B)(1) exempts from tax any "machinery or equipment used directly in manufacturing, processing, fabricating . . . or metallurgical operations." Pursuant to this statute, Capitol Castings, a plant that manufactures items used in mining and other industries, claimed as exempt several metal and non-metal products used in its facilities. The Arizona Department of Revenue ("ADOR") contended that most of the products Capitol used were not exempt because they were not "machinery or equipment" as used in the statute.
The dispute resulted in a long procedural embroilment, including two tax court proceedings, a published court of appeals opinion, a responsive legislative amendment, and a second court of appeals decision. The final appellate decision held that the legislative amendment did not alter the first appellate court's determination of the meaning of the phrase "machinery or equipment," and that the items Capitol claimed as tax-exempt were not. Against this background, the Arizona Supreme Court accepted review. Reviewing both the statutory and generally-accepted meanings of the terms "machinery or equipment," as well as the long procedural history of the case, the court determined that the legislative amendment had intended to reverse the first appellate court decision in its entirety, including its interpretation of the meaning of the term "machinery and equipment." The Court held that the legislative amendment had intended to reinstate a functional approach articulated by a prior court of appeals decision in order to determine the exemption status of materials under § 42-5159(B). That approach allowed some items that would normally not be considered "machinery or equipment" to be tax-exempt if they functioned "as a necessary part of an integrated process." The Court adopted this test, and listed a number of factors a court should consider in making this determination.
Ultimately, the Court held that a number of Capitol's items qualified for the exemption, that some did not, and that still others required remand to the tax court to determine whether the exemption applied.
Justice Berch authored the opinion; Chief Justice Jones, Vice Chief Justice McGregor, and Justices Ryan and Hurwitz concurred.
Posted by azapp @ Thu, Apr 29, 2004
Wednesday, April 28, 2004
Case Summaries for Tomorrow’s Oral Arguments Before the Arizona Supreme Court
The Arizona Supreme Court Staff Attorney's Office has issued summaries of the cases to be argued before the Court tomorrow, Thursday, April 29. The summaries are prepared solely for educational purposes and should not be considered official commentary by the Court or any member of the Court. The Court will hear two cases: 1) In re Robert Flemming, involving the question of whether the appellant, who was convicted of sexual conduct with a minor, waived his right to an independent examination into whether he should be transferred to a less restrictive environment or discharged when he waived his right to a hearing; and 2) Zajac v. City of Casa Grande, involving the effect of defects in the notice provided to local landowners of a proposed rezoning.
The Arizona Supreme Court Staff Attorney's Office has issued summaries of the cases to be argued before the Court tomorrow, Thursday, April 29. The summaries are prepared solely for educational purposes and should not be considered official commentary by the Court or any member of the Court. The Court will hear two cases: 1) In re Robert Flemming, involving the question of whether the appellant, who was convicted of sexual conduct with a minor, waived his right to an independent examination into whether he should be transferred to a less restrictive environment or discharged when he waived his right to a hearing; and 2) Zajac v. City of Casa Grande, involving the effect of defects in the notice provided to local landowners of a proposed rezoning.
Posted by azapp @ Wed, Apr 28, 2004
Monday, April 26, 2004
Articles: Division One DUI Sentencing Decision; Division One Hearing at Carl Hayden High School
An article appearing on azcentral.com discusses a recent Division One decision dealing with sentencing in DUI cases. Another article describes Division One's "Connecting with the Community" Program -- the Court holds arguments at area high schools and then discusses the cases, and other issues, with the students.
An article appearing on azcentral.com discusses a recent Division One decision dealing with sentencing in DUI cases. Another article describes Division One's "Connecting with the Community" Program -- the Court holds arguments at area high schools and then discusses the cases, and other issues, with the students.
Posted by azapp @ Mon, Apr 26, 2004
Jangula v. Arizona Property and Casualty Insurance: Division One Holds That the Amount an Insured May Recover From the Arizona Property and Casualty Insurance Guaranty Fund Must Be Reduced by the Amount the Insured Has Recovered From Other Coverage
A.R.S. § 20-661 et. seq. governs the administration of insolvent insurers and establishes a fund (the “Fund”) to help pay their claims. The maximum that can be recovered by an insured from the Fund is $99,900 or the limits of the insured’s policy. Section 20-673(C) sets forth how amounts received by an insured from other policies affect what may be recovered from the Fund. In 1988, the Arizona Supreme Court held that under A.R.S. § 20-673(C) amounts received by an insured from other coverage reduced the amount of the damages that could be claimed from the Fund. Arizona Property and Casualty Insurance Guaranty Fund v. Herder, 156 Ariz. 203, 751 P.2d 519 (1988). But if the total damages as reduced still exceeded the Fund’s maximum obligation, the amount paid by the Fund would not be reduced. Thus under Herder, if the insured received $15,000 on a $150,000 damages claim pursuant to a policy with limits of $100,000, the damage claim would be reduced to $135,000, and the Fund would be required to pay $99,900.
In 1998 the Legislature amended § 20-673(C) by adding that “[a]ny recovery pursuant to this article shall be reduced by the amount of the recovery under the claimant’s insurance policy.” Division One held this amendment changed the statute’s interpretation announced in Herder by requiring the recovery from the Fund to be reduced by any amounts the insured recovers from other coverage. Thus in the case before it the insured’s damages exceeded $115,000, but she had recovered UIM benefits of $15,000 from her own policy. The court held this UIM coverage reduced the amount she could recover from the Fund, limiting her total recovery from the Fund to $84,900 ($99,900 minus $15,000). The court held the statute’s plain language and the principal that a legislative amendment is intended to change existing law supported the court’s interpretation. The court rejected the plaintiff’s arguments to the contrary, including that the legislature did not intend to overrule Herder because it neither acted quickly nor expressly stated its intent to do so.
Judge Gemmill authored the opinion; Judges Thompson and Winthrop concurred.
A.R.S. § 20-661 et. seq. governs the administration of insolvent insurers and establishes a fund (the “Fund”) to help pay their claims. The maximum that can be recovered by an insured from the Fund is $99,900 or the limits of the insured’s policy. Section 20-673(C) sets forth how amounts received by an insured from other policies affect what may be recovered from the Fund. In 1988, the Arizona Supreme Court held that under A.R.S. § 20-673(C) amounts received by an insured from other coverage reduced the amount of the damages that could be claimed from the Fund. Arizona Property and Casualty Insurance Guaranty Fund v. Herder, 156 Ariz. 203, 751 P.2d 519 (1988). But if the total damages as reduced still exceeded the Fund’s maximum obligation, the amount paid by the Fund would not be reduced. Thus under Herder, if the insured received $15,000 on a $150,000 damages claim pursuant to a policy with limits of $100,000, the damage claim would be reduced to $135,000, and the Fund would be required to pay $99,900.
In 1998 the Legislature amended § 20-673(C) by adding that “[a]ny recovery pursuant to this article shall be reduced by the amount of the recovery under the claimant’s insurance policy.” Division One held this amendment changed the statute’s interpretation announced in Herder by requiring the recovery from the Fund to be reduced by any amounts the insured recovers from other coverage. Thus in the case before it the insured’s damages exceeded $115,000, but she had recovered UIM benefits of $15,000 from her own policy. The court held this UIM coverage reduced the amount she could recover from the Fund, limiting her total recovery from the Fund to $84,900 ($99,900 minus $15,000). The court held the statute’s plain language and the principal that a legislative amendment is intended to change existing law supported the court’s interpretation. The court rejected the plaintiff’s arguments to the contrary, including that the legislature did not intend to overrule Herder because it neither acted quickly nor expressly stated its intent to do so.
Judge Gemmill authored the opinion; Judges Thompson and Winthrop concurred.
Posted by azapp @ Mon, Apr 26, 2004
Maycock v. Asilomar Development: Division One Rules in Case of First-Impression that a Prior Owner’s Knowledge of Defects is Imputed to Subsequent Owners for Purposes of Statute of Repose
A.R.S. § 12-552 precludes contract and implied warranty claims against builders filed more than eight years after substantial completion of the improvements unless a latent defect is discovered in the eighth year. If the latent defect is discovered in the eight year, the action must be filed within one year of such discovery. Plaintiffs filed this case against the builder nine years after substantial completion. The trial court dismissed plaintiffs’ contract and warranty claims on summary judgment, finding that prior owner of the home admitted to knowledge of the defect and that his knowledge is imputed to the current owners, thus, defeating any argument that the defect was latent.
The Court of Appeals, Division One held that fact questions precluded summary judgment. The appeals court, however, agreed with the trial court that a prior owner’s knowledge is imputed to later owners (an issue of first-impression in Arizona). According to the court, the plain language of A.R.S. § 12-552 focuses on the discovery of the defect, not on who discovered it. The court was unconvinced that public policy of protecting innocent homebuyers embodied in an Arizona Supreme Court precedent predating enactment of § 12-552 required a different result.
Judge Gemmill wrote the opinion; Judges Thompson and Winthrop concurred.
A.R.S. § 12-552 precludes contract and implied warranty claims against builders filed more than eight years after substantial completion of the improvements unless a latent defect is discovered in the eighth year. If the latent defect is discovered in the eight year, the action must be filed within one year of such discovery. Plaintiffs filed this case against the builder nine years after substantial completion. The trial court dismissed plaintiffs’ contract and warranty claims on summary judgment, finding that prior owner of the home admitted to knowledge of the defect and that his knowledge is imputed to the current owners, thus, defeating any argument that the defect was latent.
The Court of Appeals, Division One held that fact questions precluded summary judgment. The appeals court, however, agreed with the trial court that a prior owner’s knowledge is imputed to later owners (an issue of first-impression in Arizona). According to the court, the plain language of A.R.S. § 12-552 focuses on the discovery of the defect, not on who discovered it. The court was unconvinced that public policy of protecting innocent homebuyers embodied in an Arizona Supreme Court precedent predating enactment of § 12-552 required a different result.
Judge Gemmill wrote the opinion; Judges Thompson and Winthrop concurred.
Posted by azapp @ Mon, Apr 26, 2004
Friday, April 23, 2004
Levinson v. Jarrett: Division One Holds That the Element of Mistake Is Required for an Amended Complaint to “Relate Back” to the Original Complaint Under Rule 15(c)
Plaintiffs filed a wrongful death action against various defendants one month before the statute of limitations ran. Over two months later, Plaintiffs filed an amended complaint naming petitioner, Dr. Levinson, as a defendant. Petitioner filed a motion for summary judgment, arguing that the amended complaint was time barred because the statute of limitations had already run. Plaintiffs contended that their amended complaint related back to the date of the original complaint because it had been served within the period allowed for service of the original complaint. Petitioner contended that, absent mistake, an amendment adding a new party does not relate back under Rule 15(c) of the Arizona Rules of Civil Procedure. The trial court denied the motion, holding that the amended complaint related back under Ritchie v. Grand Canyon Scenic Rides, 165 Ariz. 460, 799 P.2d 801 (1990).
Division One accepted special action jurisdiction in this case, reversed the trial court, and remanded. Judge Barker, writing for a unanimous panel, held that mistake concerning the identify of the proper party must be shown according to the plain language of Rule 15(c). The court of appeals rejected the trial court’s reliance on Ritchie because that opinion did not address the issue of whether an amended complaint adding a party can relate back in the absence of mistake. The court found persuasive three opinions that have construed Rule 15(c) since Ritchie was decided, each of which required “mistake.” The court granted relief to petitioner, finding that there was no showing of any mistake concerning petitioner’s identity as required by Rule 15(c).
Judge Daniel Barker authored the opinion; Judges Patrick Irvine and James Sult concurred.
Plaintiffs filed a wrongful death action against various defendants one month before the statute of limitations ran. Over two months later, Plaintiffs filed an amended complaint naming petitioner, Dr. Levinson, as a defendant. Petitioner filed a motion for summary judgment, arguing that the amended complaint was time barred because the statute of limitations had already run. Plaintiffs contended that their amended complaint related back to the date of the original complaint because it had been served within the period allowed for service of the original complaint. Petitioner contended that, absent mistake, an amendment adding a new party does not relate back under Rule 15(c) of the Arizona Rules of Civil Procedure. The trial court denied the motion, holding that the amended complaint related back under Ritchie v. Grand Canyon Scenic Rides, 165 Ariz. 460, 799 P.2d 801 (1990).
Division One accepted special action jurisdiction in this case, reversed the trial court, and remanded. Judge Barker, writing for a unanimous panel, held that mistake concerning the identify of the proper party must be shown according to the plain language of Rule 15(c). The court of appeals rejected the trial court’s reliance on Ritchie because that opinion did not address the issue of whether an amended complaint adding a party can relate back in the absence of mistake. The court found persuasive three opinions that have construed Rule 15(c) since Ritchie was decided, each of which required “mistake.” The court granted relief to petitioner, finding that there was no showing of any mistake concerning petitioner’s identity as required by Rule 15(c).
Judge Daniel Barker authored the opinion; Judges Patrick Irvine and James Sult concurred.
Posted by azapp @ Fri, Apr 23, 2004
Pleak v. Entrada Property Owners’ Ass’n: Arizona Supreme Court Affirms That Common Law Dedications of Roadway Easements For Public Use Are Viable in Arizona
First American Title Insurance Co. recorded a “Record of Survey” for the Entrada development, which dedicated a roadway easement for public use. Appellees, property owners of an adjoining development, began using the road to access their property. Appellees sought a declaration that there had been a statutory and common law dedication of the roadway easement for public use, as well as an order enjoining interference with public use of the road. Appellants counterclaimed, asking the court to quiet title in the easement as a “private road” and to enjoin the Appellees from using it. The superior court granted partial summary judgment to Appellants and the court of appeals reversed. Appellants petitioned for review contending that (1) paragraph 3956 of the 1901 Territorial Code abrogated common law dedications and (2) this dedication of an easement for public use was not properly accepted.
Justice Hurwitz, writing for a unanimous court, concluded that paragraph 3956 of the 1901 Territorial Code did not abrogate the settled common law allowing private landowners to dedicate roadway easements for public use. Justice Hurwitz further found that there was a valid dedication in this case. An effective dedication requires an offer by the owner of land to dedicate and acceptance by the general public. The parties did not dispute that First American offered to dedicate the land to public use. Appellants, however, disputed the sufficiency of public acceptance, arguing that the general public must actually use a roadway before it is effectively dedicated. The Court rejected this argument and adopted a uniform test for determining whether there has been acceptance of a common law dedication of public space, i.e., the sale of lots referencing a recorded plat containing the dedication constitutes an immediate and irrevocable dedication. In this case, the dedication was effective because the lots in Entrada were sold after recordation of the survey and the conveyance documents specifically referred to the survey.
Affirmed.
Opinion authored by Justice Andrew D. Hurwitz; Justices Charles E. Jones, Rebecca White Berch, and Michael D. Ryan, and Judge John C. Gemmill concurred. Judge Gemmill sat in place of Vice Chief Justice Ruth V. McGregor, who recused herself.
First American Title Insurance Co. recorded a “Record of Survey” for the Entrada development, which dedicated a roadway easement for public use. Appellees, property owners of an adjoining development, began using the road to access their property. Appellees sought a declaration that there had been a statutory and common law dedication of the roadway easement for public use, as well as an order enjoining interference with public use of the road. Appellants counterclaimed, asking the court to quiet title in the easement as a “private road” and to enjoin the Appellees from using it. The superior court granted partial summary judgment to Appellants and the court of appeals reversed. Appellants petitioned for review contending that (1) paragraph 3956 of the 1901 Territorial Code abrogated common law dedications and (2) this dedication of an easement for public use was not properly accepted.
Justice Hurwitz, writing for a unanimous court, concluded that paragraph 3956 of the 1901 Territorial Code did not abrogate the settled common law allowing private landowners to dedicate roadway easements for public use. Justice Hurwitz further found that there was a valid dedication in this case. An effective dedication requires an offer by the owner of land to dedicate and acceptance by the general public. The parties did not dispute that First American offered to dedicate the land to public use. Appellants, however, disputed the sufficiency of public acceptance, arguing that the general public must actually use a roadway before it is effectively dedicated. The Court rejected this argument and adopted a uniform test for determining whether there has been acceptance of a common law dedication of public space, i.e., the sale of lots referencing a recorded plat containing the dedication constitutes an immediate and irrevocable dedication. In this case, the dedication was effective because the lots in Entrada were sold after recordation of the survey and the conveyance documents specifically referred to the survey.
Affirmed.
Opinion authored by Justice Andrew D. Hurwitz; Justices Charles E. Jones, Rebecca White Berch, and Michael D. Ryan, and Judge John C. Gemmill concurred. Judge Gemmill sat in place of Vice Chief Justice Ruth V. McGregor, who recused herself.
Posted by azapp @ Fri, Apr 23, 2004
Wednesday, April 14, 2004
Article on Waterfall, Economidis Decision
An article appearing on azcentral.com discusses the Waterfall, Economidis decision that is the subject of a previous posting.
An article appearing on azcentral.com discusses the Waterfall, Economidis decision that is the subject of a previous posting.
Posted by azapp @ Wed, Apr 14, 2004
Monday, April 12, 2004
Redelsperger v. City of Avondale: Court of Appeals Division One Rules that Conditional Use Permits Are Not Subject to Referendum Power
The Court of Appeals Division One ruled that conditional use permits issued by the City of Avondale are not subject to the people's referendum power because the city does not act in its legislative capacity when granting them. The court noted that while the constitutional power of referendum is broadly construed, it is limited to legislative acts. According to the court, under the City's Zoning Ordinance, the Planning and Zoning Commission "is guided by objective criteria and standards when considering the grant or denial of a conditional use permit." Thus, while the zoning ordinance itself is legislation, "the issuance or denial of a conditional use permit is a mean or method of implementing the general policy already set forth in the Zoning Ordinance." Under the standard set forth in Wennerstrom v. City of Mesa, action on a conditional use permit is administrative in nature and not subject to the referendum power.
Judge Maurice Portley authored the opinion; Judge Thompson and Judge Patterson concurred.
The Court of Appeals Division One ruled that conditional use permits issued by the City of Avondale are not subject to the people's referendum power because the city does not act in its legislative capacity when granting them. The court noted that while the constitutional power of referendum is broadly construed, it is limited to legislative acts. According to the court, under the City's Zoning Ordinance, the Planning and Zoning Commission "is guided by objective criteria and standards when considering the grant or denial of a conditional use permit." Thus, while the zoning ordinance itself is legislation, "the issuance or denial of a conditional use permit is a mean or method of implementing the general policy already set forth in the Zoning Ordinance." Under the standard set forth in Wennerstrom v. City of Mesa, action on a conditional use permit is administrative in nature and not subject to the referendum power.
Judge Maurice Portley authored the opinion; Judge Thompson and Judge Patterson concurred.
Posted by azapp @ Mon, Apr 12, 2004
Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C. v. Pima County: Division Two Limits Award of Attorney’s Fees to Amount Authorized by Express Terms in Contract for Legal Services
Defendant/appellant Pima County (“County”) hired the law firm of Waterfall, Economidis, Caldwell, Hanshaw & Villamana (“Waterfall”), plaintiff/appellee, to represent then Deputy County Attorney Ken Peasley against the state bar’s formal charges. The parties’ written contract limited the amount the County would pay to $25,000 in the absence of further approval by the Pima County Board of Supervisors. When Waterfall’s bill exceeded $25,000, the County proposed an amendment to the Board of Supervisors who rejected the increase. However, Waterfall continued to provide legal services, eventually incurring $130,743.60 of fees and costs beyond the $25,000 the county had paid under the contract. The trial court awarded Waterfall the unpaid fees and costs, ruling that the County had breached its implied covenant of good faith and fair dealing or, alternatively, that the County had been unjustly enriched and was liable under a theory of quantum meruit.
Division Two reversed the award of attorney’s fees and costs on three grounds. First, the court of appeals held that the trial court erred in considering extrinsic evidence to interpret the contract because there was no ambiguity and Waterfall’s “reasonable expectations” as to the terms of its engagement and payment were clearly articulated under the contract. Division Two further held the trial court erred in finding that the County had breached an implied covenant of good faith and fair dealing by refusing to authorize additional funding because such a result was not beyond the contemplation of the parties. The contract clearly put Waterfall on notice of the board’s right to decline to authorize additional funding and did not give Waterfall the right to form any expectations based on verbal assurances or other representations not specified in the contract. Finally, the court of appeals held that the doctrine of unjust enrichment had no application in this case because a specific contract governed the parties’ relationship and the County completed its performance under the contract’s explicit terms.
Judge Eckerstrom authored the opinion; Judge Espinosa and Judge Howard concurred.
Defendant/appellant Pima County (“County”) hired the law firm of Waterfall, Economidis, Caldwell, Hanshaw & Villamana (“Waterfall”), plaintiff/appellee, to represent then Deputy County Attorney Ken Peasley against the state bar’s formal charges. The parties’ written contract limited the amount the County would pay to $25,000 in the absence of further approval by the Pima County Board of Supervisors. When Waterfall’s bill exceeded $25,000, the County proposed an amendment to the Board of Supervisors who rejected the increase. However, Waterfall continued to provide legal services, eventually incurring $130,743.60 of fees and costs beyond the $25,000 the county had paid under the contract. The trial court awarded Waterfall the unpaid fees and costs, ruling that the County had breached its implied covenant of good faith and fair dealing or, alternatively, that the County had been unjustly enriched and was liable under a theory of quantum meruit.
Division Two reversed the award of attorney’s fees and costs on three grounds. First, the court of appeals held that the trial court erred in considering extrinsic evidence to interpret the contract because there was no ambiguity and Waterfall’s “reasonable expectations” as to the terms of its engagement and payment were clearly articulated under the contract. Division Two further held the trial court erred in finding that the County had breached an implied covenant of good faith and fair dealing by refusing to authorize additional funding because such a result was not beyond the contemplation of the parties. The contract clearly put Waterfall on notice of the board’s right to decline to authorize additional funding and did not give Waterfall the right to form any expectations based on verbal assurances or other representations not specified in the contract. Finally, the court of appeals held that the doctrine of unjust enrichment had no application in this case because a specific contract governed the parties’ relationship and the County completed its performance under the contract’s explicit terms.
Judge Eckerstrom authored the opinion; Judge Espinosa and Judge Howard concurred.
Posted by azapp @ Mon, Apr 12, 2004
Thursday, April 8, 2004
Arizona Civil Liberties Union Files Amicus Brief in Gay-Marriage Case Pending in Arizona Supreme Court.
The Arizona Civil Liberties Union has filed an amicus brief in support of the petitioner in the gay-marriage case currently pending in the Arizona Supreme Court, which has been the subject of previous postings. Click here to view the brief.
The Arizona Civil Liberties Union has filed an amicus brief in support of the petitioner in the gay-marriage case currently pending in the Arizona Supreme Court, which has been the subject of previous postings. Click here to view the brief.
Posted by azapp @ Thu, Apr 8, 2004
Wednesday, April 7, 2004
Guenther & Drannan v. Allstate & Gaub: Division Two Holds That Failure to Participate in Good Faith in a Court-Ordered Settlement Conference May Constitute Abuse of Process
Appellants Erika Guenther and Tammie Drannan sued Allstate Insurance Company and Allstate’s attorney, Blaine Gaub, for abuse of process based on Allstate’s company policy of refusing to settle minor-impact, soft-tissue (MIST) claims. Guenther and Drannan argued that Allstate’s policy was designed to deter claimants from litigating their claims by making litigation too costly. Allstate maintained that vigorously defending a claim does not constitute abuse of process. The jury found Allstate liable and awarded compensatory damages, but found in favor of Gaub on the same claim. Allstate filed a motion for Judgment as a Matter of Law (JMOL), which the trial court denied.
Allstate appealed, asserting that the trial court erred in denying its motion for JMOL and that the jury’s verdict in favor of Gaub necessarily exonerated Allstate as well. Division Two upheld the trial court’s denial of Allstate’s motion for JMOL, explaining that a jury reasonably could have concluded that Allstate’s actions were primarily motivated by an intent to use the litigation processes to pursue a corporate policy of deterring future claims rather than by an intent to resolve the underlying dispute. In particular, Allstate’s position and conduct during its mandatory settlement conference evidenced an unwillingness to participate in settlement discussions in good faith. Accordingly, the court held that a reasonable jury could have found that Allstate’s use of the court process so lacked justification as to lose its legitimate function as a reasonably justifiable litigation procedure and that Allstate used that process in a manner that was inconsistent with legitimate litigation goals. Even so, the court upheld the jury’s verdict in favor of Allstate’s attorney, reasoning that the jury verdict could have been based on a finding that only Allstate had acted with an ulterior purpose by adopting the MIST policy and by allowing that policy to direct Gaub’s actions.
The court also affirmed the trial court’s resolution of numerous evidentiary issues.
Judge Peter J. Eckerstrom authored the opinion; Chief Judge Philip G. Espinosa and Presiding Judge John Pelander concurred.
Appellants Erika Guenther and Tammie Drannan sued Allstate Insurance Company and Allstate’s attorney, Blaine Gaub, for abuse of process based on Allstate’s company policy of refusing to settle minor-impact, soft-tissue (MIST) claims. Guenther and Drannan argued that Allstate’s policy was designed to deter claimants from litigating their claims by making litigation too costly. Allstate maintained that vigorously defending a claim does not constitute abuse of process. The jury found Allstate liable and awarded compensatory damages, but found in favor of Gaub on the same claim. Allstate filed a motion for Judgment as a Matter of Law (JMOL), which the trial court denied.
Allstate appealed, asserting that the trial court erred in denying its motion for JMOL and that the jury’s verdict in favor of Gaub necessarily exonerated Allstate as well. Division Two upheld the trial court’s denial of Allstate’s motion for JMOL, explaining that a jury reasonably could have concluded that Allstate’s actions were primarily motivated by an intent to use the litigation processes to pursue a corporate policy of deterring future claims rather than by an intent to resolve the underlying dispute. In particular, Allstate’s position and conduct during its mandatory settlement conference evidenced an unwillingness to participate in settlement discussions in good faith. Accordingly, the court held that a reasonable jury could have found that Allstate’s use of the court process so lacked justification as to lose its legitimate function as a reasonably justifiable litigation procedure and that Allstate used that process in a manner that was inconsistent with legitimate litigation goals. Even so, the court upheld the jury’s verdict in favor of Allstate’s attorney, reasoning that the jury verdict could have been based on a finding that only Allstate had acted with an ulterior purpose by adopting the MIST policy and by allowing that policy to direct Gaub’s actions.
The court also affirmed the trial court’s resolution of numerous evidentiary issues.
Judge Peter J. Eckerstrom authored the opinion; Chief Judge Philip G. Espinosa and Presiding Judge John Pelander concurred.
Posted by azapp @ Wed, Apr 7, 2004
Monday, April 5, 2004
Barrett v. Harris: Division One Holds That Arizona Follows the “Substantial Factor” Test in Determining Proximate Cause, but Finds That it Does Not Apply in This Case
Plaintiffs filed suit against Dr. Harris claiming, among other allegations, that he had caused their baby’s death by failing to advise the mother that the baby would be at risk for respiratory problems if induced prematurely and by instructing the nurse to administer blow-by oxygen. At the close of the Plaintiffs’ case, the trial court granted Dr. Harris’ motion for judgment as a matter of law on these two claims, finding that Plaintiffs had failed to establish proximate causation or, alternatively, that the nurse’s administration of blow-by oxygen was a superseding cause of death.
Judge Timmer, writing for a unanimous panel, affirmed the trial judge’s finding that Plaintiffs had failed to establish proximate cause for both claims. Plaintiffs argued that under Restatement (Second) of Torts § 457, the doctor was liable because he started a chain of events that led to the baby’s death during the neo-natal consultation. Judge Timmer rejected this argument, finding that Plaintiffs provided no evidence that demonstrated that the doctor’s advice proximately caused the baby’s injuries.
With respect to the order to administer blow-by oxygen, Judge Timmer found that the Plaintiffs’ expert’s testimony precluded the trial court’s ruling as a matter of law that the Plaintiffs failed to prove that the doctor’s order fell below the standard of care. Even so, Judge Timmer affirmed the trial court’s ruling because Plaintiffs failed to prove proximate cause on this claim. Plaintiffs contended they did not have to specifically show that the order created a foreseeable risk of injury. Plaintiffs relied on the “substantial factor test” from Restatement § 435, which states that where an actor’s conduct is a substantial factor in bringing about harm to another, lack of foreseeability does not preclude liability. Judge Timmer held that Arizona courts follow the substantial factor test, but found that it did not apply in this case because Plaintiffs failed to present evidence that the injuries that occurred were within the recognizable risks of the procedure used.
Judge Timmer authored the opinion; Judges Thompson and Portley concurred.
Plaintiffs filed suit against Dr. Harris claiming, among other allegations, that he had caused their baby’s death by failing to advise the mother that the baby would be at risk for respiratory problems if induced prematurely and by instructing the nurse to administer blow-by oxygen. At the close of the Plaintiffs’ case, the trial court granted Dr. Harris’ motion for judgment as a matter of law on these two claims, finding that Plaintiffs had failed to establish proximate causation or, alternatively, that the nurse’s administration of blow-by oxygen was a superseding cause of death.
Judge Timmer, writing for a unanimous panel, affirmed the trial judge’s finding that Plaintiffs had failed to establish proximate cause for both claims. Plaintiffs argued that under Restatement (Second) of Torts § 457, the doctor was liable because he started a chain of events that led to the baby’s death during the neo-natal consultation. Judge Timmer rejected this argument, finding that Plaintiffs provided no evidence that demonstrated that the doctor’s advice proximately caused the baby’s injuries.
With respect to the order to administer blow-by oxygen, Judge Timmer found that the Plaintiffs’ expert’s testimony precluded the trial court’s ruling as a matter of law that the Plaintiffs failed to prove that the doctor’s order fell below the standard of care. Even so, Judge Timmer affirmed the trial court’s ruling because Plaintiffs failed to prove proximate cause on this claim. Plaintiffs contended they did not have to specifically show that the order created a foreseeable risk of injury. Plaintiffs relied on the “substantial factor test” from Restatement § 435, which states that where an actor’s conduct is a substantial factor in bringing about harm to another, lack of foreseeability does not preclude liability. Judge Timmer held that Arizona courts follow the substantial factor test, but found that it did not apply in this case because Plaintiffs failed to present evidence that the injuries that occurred were within the recognizable risks of the procedure used.
Judge Timmer authored the opinion; Judges Thompson and Portley concurred.
Posted by azapp @ Mon, Apr 5, 2004
Friday, April 2, 2004
Mitchell v. Gamble: Reaching Issue First Raised at Oral Argument, Division Two Holds that Trial Court Erred in Granting Summary Judgment for Defendant Middle School Students on Injured Teacher's Negligence Claim on Ground that Students were Acting as Teacher's Co-Employees and thus Workers' Compensation Act Barred Tort Recovery.
Two middle school students were pushing a paper cart down a school hallway, after having been asked to do so by a teacher, when the cart struck a door which in turn struck and injured another teacher. The teacher sued the students, alleging that they were pushing the cart in a negligent and reckless manner. The trial court granted summary judgment for the students, holding that the students were "employed" by the school at the time of the accident, and thus Arizona's Workers' Compensation Act, A.R.S. 23-1022(A), barred the teacher's tort claim. (Section 23-1022(A) provides that workers' compensation is the exclusive relief for injuries to an employee caused by a co-employee acting in the scope of employment.) In the trial court, the parties centered their arguments with respect to the students' status as "employees" on the Restatement (Second) of Agency and common-law cases. But then Division Two set the case for oral argument sua sponte and (pursuant to its normal policy) distributed a draft decision to the parties authored by one of the judges on the panel. The draft decision focused on a different legal standard -- the standard set by the workers' compensation statutes. The Court invited the parties to file supplemental briefs after the draft decision was distributed, but they declined the invitation. At the oral argument, however, the parties focused on the statutes discussed in the draft decision, essentially abandoning the Restatement and common-law cases they had focused on earlier.
The Court first briefly disposed of the appellees' earlier argument based on the common-law and Restatement, noting that the "totality of the circumstances" did not indicate that the employees had an employment relationship at the time of the accident. The Court then turned to the statutory argument that the parties first addressed at the oral argument. Acknowledging that arguments raised for the first time at oral argument are normally deemed waived, the Court resolved to consider the argument anyway, for several reasons: (1) the appellees had cited at least one pertinent statute in the lower court, (2) the trial court expressly based its ruling on the workers' compensation statute, (3) the issue was a purely legal one of general statewide interest, and (4) the Court had received "analytical input from the parties" on the issue, and neither party claimed surprise or unfairness. The Court thus addressed the definition of "[e]mployee" set forth in A.R.S. 23-901(6). The record did not establish that the students fit this definition, the Court held, because it did not show that they were actually "appoint[ed]" to act "in the service" of the school district at the time of the accident. The Court accordingly reversed the trial court's grant of summary judgment for the students and remanded the case.
The decision was authored by Judge Pelander and joined by Judge Eckerstrom.
Judge Espinosa dissented, characterizing the majority's opinion as "overly technical," "counterintuitive," and "bad public policy." In his view, the students were effectively "employees" at the time of the accident because they "merely stepped into the shoes of their teacher" when they carried out her command to move the cart.
Two middle school students were pushing a paper cart down a school hallway, after having been asked to do so by a teacher, when the cart struck a door which in turn struck and injured another teacher. The teacher sued the students, alleging that they were pushing the cart in a negligent and reckless manner. The trial court granted summary judgment for the students, holding that the students were "employed" by the school at the time of the accident, and thus Arizona's Workers' Compensation Act, A.R.S. 23-1022(A), barred the teacher's tort claim. (Section 23-1022(A) provides that workers' compensation is the exclusive relief for injuries to an employee caused by a co-employee acting in the scope of employment.) In the trial court, the parties centered their arguments with respect to the students' status as "employees" on the Restatement (Second) of Agency and common-law cases. But then Division Two set the case for oral argument sua sponte and (pursuant to its normal policy) distributed a draft decision to the parties authored by one of the judges on the panel. The draft decision focused on a different legal standard -- the standard set by the workers' compensation statutes. The Court invited the parties to file supplemental briefs after the draft decision was distributed, but they declined the invitation. At the oral argument, however, the parties focused on the statutes discussed in the draft decision, essentially abandoning the Restatement and common-law cases they had focused on earlier.
The Court first briefly disposed of the appellees' earlier argument based on the common-law and Restatement, noting that the "totality of the circumstances" did not indicate that the employees had an employment relationship at the time of the accident. The Court then turned to the statutory argument that the parties first addressed at the oral argument. Acknowledging that arguments raised for the first time at oral argument are normally deemed waived, the Court resolved to consider the argument anyway, for several reasons: (1) the appellees had cited at least one pertinent statute in the lower court, (2) the trial court expressly based its ruling on the workers' compensation statute, (3) the issue was a purely legal one of general statewide interest, and (4) the Court had received "analytical input from the parties" on the issue, and neither party claimed surprise or unfairness. The Court thus addressed the definition of "[e]mployee" set forth in A.R.S. 23-901(6). The record did not establish that the students fit this definition, the Court held, because it did not show that they were actually "appoint[ed]" to act "in the service" of the school district at the time of the accident. The Court accordingly reversed the trial court's grant of summary judgment for the students and remanded the case.
The decision was authored by Judge Pelander and joined by Judge Eckerstrom.
Judge Espinosa dissented, characterizing the majority's opinion as "overly technical," "counterintuitive," and "bad public policy." In his view, the students were effectively "employees" at the time of the accident because they "merely stepped into the shoes of their teacher" when they carried out her command to move the cart.
Posted by azapp @ Fri, Apr 2, 2004
Thursday, April 1, 2004
Burke v. VoiceStream Wireless Corp.: Division One Panel Rules that Restrictive Covenant Prevents Erection Cell Phone Tower Decorated As Church Bell Tower
Plaintiff homeowners sought in trial court to enjoin the erection of a cell phone tower adjacent to a church in their neighborhood. The cell phone tower, which was built over neighbors’ protests, was decorated as a church bell tower with four crosses and three hanging bells. The parties filed cross motions for summary judgment and the trial court ruled that the restrictive covenant, which prohibited structures other than a single-family home and garage on any lot, was ambiguous. Resolving the ambiguity in favor of free use and enjoyment of property, the trial court granted summary judgment to the cell phone company and the church.
On appeal, the court reviewed the language of the restrictive covenant de novo and found that the its plain meaning prohibited the cell phone tower. The court also held that previous violations of the restrictive covenant throughout the subdivision did not constitute a waiver because of a “non-waiver” provision in the restrictive covenant, itself. The cell phone company was precluded from claiming hardship for the cost of removing the tower because it had notice of the restrictive covenant and the neighbors’ objections prior to constructing the tower. The court held that laches would not bar the homeowners from getting relief simply because they had not filed suit to enjoin construction before it began when they had sent a letter putting the cell phone company on notice of their objections.
Judge Gemmill wrote the opinion which Judge Hall and Judge Winthrop joined.
Practice Point: This case was up on cross motions for summary judgment. According to the court, “[w]hen cross-motions for summary judgment have been filed, this court may evaluate the cross-motions and, if appropriate, remand with instructions that judgment be entered in favor of the appellants.” In this case, the court remanded for entry of judgment in favor of the homeowners.
Plaintiff homeowners sought in trial court to enjoin the erection of a cell phone tower adjacent to a church in their neighborhood. The cell phone tower, which was built over neighbors’ protests, was decorated as a church bell tower with four crosses and three hanging bells. The parties filed cross motions for summary judgment and the trial court ruled that the restrictive covenant, which prohibited structures other than a single-family home and garage on any lot, was ambiguous. Resolving the ambiguity in favor of free use and enjoyment of property, the trial court granted summary judgment to the cell phone company and the church.
On appeal, the court reviewed the language of the restrictive covenant de novo and found that the its plain meaning prohibited the cell phone tower. The court also held that previous violations of the restrictive covenant throughout the subdivision did not constitute a waiver because of a “non-waiver” provision in the restrictive covenant, itself. The cell phone company was precluded from claiming hardship for the cost of removing the tower because it had notice of the restrictive covenant and the neighbors’ objections prior to constructing the tower. The court held that laches would not bar the homeowners from getting relief simply because they had not filed suit to enjoin construction before it began when they had sent a letter putting the cell phone company on notice of their objections.
Judge Gemmill wrote the opinion which Judge Hall and Judge Winthrop joined.
Practice Point: This case was up on cross motions for summary judgment. According to the court, “[w]hen cross-motions for summary judgment have been filed, this court may evaluate the cross-motions and, if appropriate, remand with instructions that judgment be entered in favor of the appellants.” In this case, the court remanded for entry of judgment in favor of the homeowners.
Posted by azapp @ Thu, Apr 1, 2004
In the Matter of the Estate of Kathryn W. Gordon: Pierce v. Molet: Division One Holds That “Benefit to the Estate” is a Relevant, but not Dispositive Element of “Good Faith” in an Action for Attorney’s Fees under A.R.S. § 14-3720
A.R.S. § 14-3720 permits a personal representative of a decedent’s estate to be reimbursed attorneys’ fees incurred in prosecuting or defending a claim, even though unsuccessfully, so long as the litigation is undertaken in “good faith.” The issue in this case is whether an additional showing of “benefit to the estate” is also required.
Nancy Molet, personal representative of the Estate of Kathryn W. Gordon, (Appellant) sought reimbursement of the fees she incurred in a dispute with Appellees Pierce, the beneficiaries of the estate, pursuant to A.R.S. § 14-3720. Citing court of appeals caselaw holding that such fees were inappropriate absent a finding that the representative acted for the “benefit of the estate,” appellees argued that the fees should be denied because the services benefited only appellant and not the estate. In response, Appellant contended that, because only a finding of “good faith” is required under A.R.S. §14-3720, the additional finding of “benefit to the estate” was unnecessary. The trial court agreed with the appellees and denied the fee request. Molet appealed.
On appeal, Division One rejected the prior line of cases that imposed “benefit to the estate” as an additional element required to recover attorney fees under the statute. After reviewing Arizona and other Uniform Probate Code states’ case law, the court concluded that the plain meaning of the statute required only a showing of “good faith” and that allegiance to the statute’s plain language trumped principles of stare decisis requiring a showing of “benefit to the estate.” In defining “good faith,” the court also rejected a subjective good faith inquiry in favor of an objective one and defined the scope of the inquiry. The court then harmonized previous case law with legislative intent by finding that “benefit to the estate” is a relevant circumstance in an objective inquiry into the “good faith” intentions of the personal representative. The court remanded the case for an evidentiary hearing on the element of good faith.
Presiding Judge James B. Sult authored the opinion; Judge Sheldon H. Weisberg concurred. Judge Daniel A. Barker wrote a separate concurring opinion.
A.R.S. § 14-3720 permits a personal representative of a decedent’s estate to be reimbursed attorneys’ fees incurred in prosecuting or defending a claim, even though unsuccessfully, so long as the litigation is undertaken in “good faith.” The issue in this case is whether an additional showing of “benefit to the estate” is also required.
Nancy Molet, personal representative of the Estate of Kathryn W. Gordon, (Appellant) sought reimbursement of the fees she incurred in a dispute with Appellees Pierce, the beneficiaries of the estate, pursuant to A.R.S. § 14-3720. Citing court of appeals caselaw holding that such fees were inappropriate absent a finding that the representative acted for the “benefit of the estate,” appellees argued that the fees should be denied because the services benefited only appellant and not the estate. In response, Appellant contended that, because only a finding of “good faith” is required under A.R.S. §14-3720, the additional finding of “benefit to the estate” was unnecessary. The trial court agreed with the appellees and denied the fee request. Molet appealed.
On appeal, Division One rejected the prior line of cases that imposed “benefit to the estate” as an additional element required to recover attorney fees under the statute. After reviewing Arizona and other Uniform Probate Code states’ case law, the court concluded that the plain meaning of the statute required only a showing of “good faith” and that allegiance to the statute’s plain language trumped principles of stare decisis requiring a showing of “benefit to the estate.” In defining “good faith,” the court also rejected a subjective good faith inquiry in favor of an objective one and defined the scope of the inquiry. The court then harmonized previous case law with legislative intent by finding that “benefit to the estate” is a relevant circumstance in an objective inquiry into the “good faith” intentions of the personal representative. The court remanded the case for an evidentiary hearing on the element of good faith.
Presiding Judge James B. Sult authored the opinion; Judge Sheldon H. Weisberg concurred. Judge Daniel A. Barker wrote a separate concurring opinion.
Posted by azapp @ Thu, Apr 1, 2004
