AZAPP Blog

AZcentral.com reports on Court of Appeals decision regarding redistricting lines.

AZcentral.com is running a story regarding the Court of Appeals' decision to stay Judge Fields' order regarding the 2002 legislature redistricting map.

Court of Appeals Issues Stay in Redistricting Case

AZAPP has learned that the Court of Appeals has issued a stay of Judge Fields' order declaring the independent redistricting lines unconstutitional. More details when they become available.

The Arizona Republic Reports Independent Redistricting Decision Expected Today

A story in the Arizona Republic reports that the Court of Appeals will today decide whether the 2002 independent redistricting map will be used for elections this Fall.

The Arizona Republic Reports Independent Redistricting Decision Expected Today

A story in the Arizona Republic reports that the Court of Appeals will today decide whether the 2002 independent redistricting lines will be used in November's elections.

Case Summaries Issued for Arizona Supreme Court Oral Arguments

The Arizona Supreme Court Staff Attorney's Office has issued summaries of the cases to be argued before the Court today and June 1st. The summaries are prepared solely for educational purposes and should not be considered official commentary by the Court or any member of the Court. Today the Court heard argument in an attorney discipline case and a special action involving the death penalty. (See 5/27 case summaries.) On Tuesday, the Court will hear two more death penalty matters on direct appeal. (See 6/1 case summaries.)

Arizona Supreme Court Issues Minutes: Grants Two Petitions for Review

On May 26th, the Arizona Supreme Court issued its Minutes in two parts A and B. Minutes rule on petitions for review, special actions, requests for attorneys fees, and other matters.

The court granted two petitions for review. One was City of Tucson v. Clear Channel Outdoor Inc., 2 CA-CV 02-0183, involving retroactive application of the two-year statute of limitations governing enforcement actions for outdoor-advertising zoning violations. The Clear Channel decision out of the Division Two was covered in a previous posting. The second Petition granted was a criminal case and is beyond the scope of our blog.

Arizona Supreme Court Declines Review of Same-Sex Marriage Decision.

An article appearing on azcentral.com reports that the Arizona Supreme Court has decided not to review the Court of Appeals' decision regarding same-sex marriage (see today's previous postings).

Additional Article on Same-Sex Marriage Case Pending Before Arizona Supreme Court.

Another article appearing on azcentral.com discusses the same-sex marriage case currently pending before the Arizona Supreme Court (see previous posting).

Arizona Supreme Court Oral Argument Summaries; Article on Today's Determination by Arizona Supreme Court Whether to Review Same-Sex Marriage Case.

The Arizona Supreme Court Staff Attorney's Office has released Oral Argument Summaries describing the cases to be argued this Thursday, May 27, and the following Tuesday, June 1. The summaries are prepared solely for educational purposes and are not official commentary by the Court or any member of the Court. On Thursday, the Court will hear argument in two cases. In Matter of Richard B. Arrotta, the Court will decide whether a disbarred attorney presented sufficient evidence of his rehabilitation to be readmitted to the bar. In McKaney v. Foreman, the Court will decide whether the aggravating circumstances that make the death penalty an available punishment must be supported by a finding of probable cause in the charging document in order that the State may seek the death penalty. The Court will hear two more cases on June 1. In Arizona v. Murdaugh, the Court will decide whether a defendant sentenced to death made a knowing waiver of his Sixth Amendment right to have a jury determine his sentence, and whether reversible error occurred when a judge, rather than a jury, sentenced the defendant to death. In Arizona v. Moody, the Court will decide seventeen issues relating to the trial and death sentence imposed upon the appellant.

An article appearing on azcentral.com discusses the fact that the Arizona Supreme Court will decide today whether to review the Court of Appeals' decision in the same-sex marriage case, which is the subject of previous postings.

Article on Workers' Compensation Decision

An article appearing on azcentral.com discusses Division One's decision in Grammatico v. Industrial Commission, which addressed the constitutionality of a state law denying workers' compensation to employees who test positive for illegal drug use.

Wonders v. Pima County : Division Two upholds the constitutionality of Pima County’s native-plant preservation ordinance

Pima County Ordinance No. 1998-39 requires a landowner seeking to develop certain lands to choose one of three plant preservation methods before developing the land or to obtain a variance from Pima County’s Board of Adjustment. The Wonders, trustees of the Wonders Family Trust—a developer of two subdivisions in Pima County—submitted a plant preservation plan that complied with the Ordinance, and did not seek a variance. The Trust then filed a complaint for inverse condemnation and requested a declaratory judgment that the Ordinance was an unconstitutional taking. The trial court granted summary judgment in favor of Pima County and the Trust appealed.

The court of appeals affirmed. On appeal, the court held that, under the doctrine of primary jurisdiction, the trial court was not required to address the Trust’s claim that the ordinance was unconstitutionally vague because the Trust failed to seek a variance from the Pima County Board of Adjustment. It was within the trial court’s discretion to require the Trust to bring such claims before the Board in the first instance. The court also concluded that the legislature had not manifested a clear intent to preclude local control over native-plant preservation, nor did the Arizona Native Plant Act actually conflict with the ordinance, and that therefore County’s ordinance was not preempted by state law. Finally, the court concluded that the Ordinance was not a regulatory taking nor an exaction of the Trust’s property because it did not deprive the Trust’s land of all economically beneficial use of its property, and because the Trust’s alleged harm did not result from adjudicative action nor required dedication for public use.

Judge Florez authored the opinion; Judges Brammer and Howard concurred.

Article on Appeal Won by Prison Inmate

An article on azcentral.com discusses the winning party in the Reinke v. Alliance Towing decision, covered in a previous posting, who pressed the appeal while a prison inmate in Buckeye.

Article Discusses Burke v. VoiceStream Decision

An article on azcentral.com discusses the Burke v. Voicestream Wireless Corp. decision, which was the subject of a recent posting.

Daystar Investments, L.L.C. v. Maricopa County Treasurer: Division One Holds that County Treasurer was not Bound by Court Order to Deliver Deed when He Believed that Statutory Requirements had Not Been Observed.

A.R.S. 42-18101 authorizes county treasurers to sell tax liens, to secure payment of delinquent taxes on real property. Daystar Investments, L.L.C. purchased a tax lien, and then obtained a default judgment foreclosing the redemption rights of the record owners and ordering the Maricopa County Treasurer to deliver the deed to Daystar. But the Treasurer refused, asserting that, notwithstanding the judgment it had obtained from the court, Daystar had not waited for the statutorily-required period before suing to foreclose the right to redeem. Daystar petitioned the court in the foreclosure action to show cause why the Treasurer should not be held in contempt for refusing to obey the court's order. The parties later stipulated to seek a ruling from the court on the legal question of whether the Treasurer was required to comply with the court's judgment, regardless of his doubts as to the foreclosure's legality. The court found merit in the Treasurer's objection and set aside its judgment. On appeal, Division One first rejected Daystar's argument that the Treasurer lacked standing to challenge the default judgment, stressing that the Treasurer "had an interest in determining his responsibilities under the default judgment and under state law." The Court held that the Treasurer was not bound by the court's order and could legally refuse to deliver the deed in light of his doubts about the default judgment's legality. But the Court disagreed with the trial court's decision to decide the merits of the Treasurer's objection on an incomplete record, and remanded the case for a new determination as to whether the Treasurer's objection was well founded.

The opinion was authored by Judge Norris and joined by Judges Lankford and Sult.

Articles: AZ Supreme Court to Consider Petition to Review Same-Sex Marriage Decision May 25; Discussion of Court's Pleak Decision

An article appearing on azcentral.com notes that the Arizona Supreme Court will at its May 25 conference consider the petition for review filed in the same-sex marriage case. Another article discusses the Court's recent decision in Pleak v. Entrada Property Owners' Association.

Reinke v. Alliance Towing: Division One Holds That A Person May Possess Legal Title To An Automobile Even Though He Has Neither Applied For Nor Received A Certificate Of Title From The Motor Vehicle Division

Dennis Reinke purchased a Corvette and obtained a notarized title document showing him as the buyer, but did not promptly apply for a certificate of title in his name from the Motor Vehicle Division (“MVD”). Approximately one month after purchasing the Corvette, he was arrested. Alliance Towing towed his car from the Circle K parking lot where it had sat for two days. Reinke tried regaining possession of his Corvette by executing a power of attorney that gave an associate “control over all property including automobiles.” When the associate contacted Alliance, it refused to cooperate, telling him that the power of attorney looked like a forgery. Alliance then completed a “Report of Abandoned Vehicle” in which it represented that it had not been contacted by anyone claiming ownership or right of possession to the vehicle, and received an “Abandoned Vehicle Authorization for Transfer of Title” form from the MVD pursuant to which Alliance certified that there had been no contact “made for the return of the vehicle by the owner . . . or any other person having an interest in the vehicle.” Before receiving the Transfer of Title form, Reinke’s attorney contacted Alliance asking it to cooperate in returning the Corvette to him; it again refused.

After Reinke sued, the trial court entered summary judgment in favor of Alliance on the ground that Reinke was not the “owner” of the vehicle because he had neither applied for nor received a certificate of title in his name from the MVD. The Court of Appeals reversed, holding that under the plain language of the controlling statutes, Reinke was the legal owner. A.R.S. § 28-101(36)(a) (now (37)(a)) defines an “owner” of a vehicle as a “person who holds the legal title of a vehicle.” A.R.S. § 28-2058 (A)(1)(a) and (b) provide that a transfer of “title” takes place when the seller “endorse[s]” the certificate of title and “deliver[s]” it to the purchaser along with “delivery” of the vehicle. The Court of Appeals also found a question of fact concerning whether the vehicle had been abandoned both because Reinke had demanded possession of the Corvette pursuant to the power of attorney, and because Alliance was not entitled to any presumption of abandonment under A.R.S § 28-4801 since the vehicle had not been unattended for 72 hours before it was towed from the Circle K parking lot.

Judge Gemmill authored the opinion; Judges Snow and Garbarino concurred.

Bridgestone v. A.P.S. Rent-A-Car: Division Two Strictly Construes Statute Requiring Manufacturer to Indemnify a Seller in Product Liability Cases

A.R.S. § 12-684(A) provides that in a “product liability action where the manufacturer refuses to accept a tender of defense from the seller, the manufacturer shall indemnify the seller for any judgment rendered against the seller.” There are two statutory exceptions: 1) if the seller had knowledge of the defect in the product; or 2) if the seller’s alteration or installation of the product was a substantial cause of the incident. In this case, the trial court held, and Division Two of the Court of Appeals agreed, that Bridgestone, the manufacturer, did not establish either one of these exceptions. Nor did Bridgestone establish an improper tender merely because the defective product was manufactured by its subsidiary.

Bridgestone also argued that courts must follow common law indemnification principles, such as conflict of interest and diligent defense, when applying the statute. While acknowledging that these “defenses” to indemnification would have been available to Bridgestone in this case under the common law, the court strictly construed the statute, noting that the common law defenses were not included in the statutory exceptions. “If the legislature had wanted to include such . . . exception[s], it could and presumably would have done so.” In a similar vein, the court rejected Bridgestone’s argument that it could not be liable to indemnify for defects that occurred after leaving the manufacturer but before reaching the seller. According to Bridgestone, a strict reading of the statute would result in a manufacturer having obligations beyond its primary duty to the person injured by the product. While the court found this argument somewhat persuasive, it ultimately deferred to the legislature to change the statute if it caused unfair results.

Judge Pelander wrote the opinion in which Judges Espinosa and Eckerstrom concurred.

Practice Note: Paragraphs 15 and 16 of the opinion contain a good collection of statutory construction maxims with recent case citations.

Waddell et. al. v. Titan Ins. Co. : Division One holds that an insurer is entitled to challenge the reasonableness of both a default judgment and damages resulting from its insured’s settlement agreement with a Plaintiff

This case arises out of a severe one-car rollover accident, in which the passengers were severely injured. The passengers and the driver had all consumed alcohol, and none were wearing seatbelts. The passengers sued the driver, who was insured by Titan Insurance Company (the “insurer”). The insurer defended its insured unconditionally, but initially refused to settle within the policy limits. When the insurer finally offered a settlement within the policy limits, the offer was refused. The insured entered into a Damron agreement with the plaintiffs, in which he agreed to accept a default judgment and assign his claims against the insurer to plaintiffs. In return, the plaintiffs agreed not to execute the anticipated judgment against the insured. The trial court held a hearing on damages, and the insurer moved to intervene to present evidence on the issues of liability and comparative fault. The trial court held that the hearing was limited to the issue of damages to be awarded. The insurer appealed.

On appeal, the insurer raised the question of whether the Damron agreement was enforceable where the insured offered to settle within the policy limits and defended its insured unconditionally. The Court of Appeals found that the issue had been waived. Next, the Court of Appeals addressed the scope of the damages hearing. It held that, under Morris, the insured is entitled to challenge the reasonableness of a judgment stipulated in a Damron agreement, and that, by extension, both a default judgment and the resulting damages are to be tested for reasonableness. In this case, because the insurer had not amended the pleadings or fully complied with Arizona Rule of Civil Procedure 24(c) when it moved to intervene, the court had discretion to limit the hearing to the issue of damages. Nevertheless, the insurer is entitled to a future hearing to challenge the reasonableness of the default and resulting judgment. The court remanded accordingly.

Judge Gemmill authored the opinion; Judges Garbarino and Patterson concurred.