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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Thursday, January 27, 2005
Arizona Supreme Court Cases to be Argued February 10
The Arizona Supreme Court Staff Attorney's Office has issued summaries of the cases to be argued on February 10. The Court will hear argument in two cases: (1) Fernandez v. Nissan North America et al., involving the question of whether a plaintiff lacking standing to press claims against particular automobile manufacturers can nevertheless allege class action claims against these manufacturers, and (2) Roseberry v. Arizona, a death-penalty appeal raising a number of issues, including whether application of the new death penalty statute violated the Ex Post Facto Clause, whether the trial court erred in allowing jurors with general objections to the death penalty to be stricken, and whether the evidence was sufficient to support the "pecuniary gain" aggravator.
The Arizona Supreme Court Staff Attorney's Office has issued summaries of the cases to be argued on February 10. The Court will hear argument in two cases: (1) Fernandez v. Nissan North America et al., involving the question of whether a plaintiff lacking standing to press claims against particular automobile manufacturers can nevertheless allege class action claims against these manufacturers, and (2) Roseberry v. Arizona, a death-penalty appeal raising a number of issues, including whether application of the new death penalty statute violated the Ex Post Facto Clause, whether the trial court erred in allowing jurors with general objections to the death penalty to be stricken, and whether the evidence was sufficient to support the "pecuniary gain" aggravator.
Posted date: Thu, Jan 27, 2005
Hayden Business Center Condominiums Ass'n v. Pegasus Development Corp.: Division One Holds that Implied Warranty of Good Workmanship Claim Does Not Extend to Subsequent Purchasers of Commercial Buildings.
An implied warranty of good workmanship claim is a contract claim, and thus generally only the parties to a contract may bring such a claim. But there are exceptions to this limitation. One exception that the Arizona Supreme Court has recognized permits subsequent purchasers of homes to bring such implied warranty claims against the entity that manufactured the homes. This exception is based on public policy considerations, including the relative unsophistication of homebuyers as compared to homebuilders and the increasing mobility of families. In this case, however, the Court of Appeals was asked to extend this exception to subsequent purchasers of commercial buildings. The Court declined to do so, reasoning that the same public policy factors are not present with respect to commercial properties, becuase there is not generally a "gross disparity in sophistication" between buyers and sellers of commercial properties, and because commercial buildings "generally are not mass-produced." The Court accordingly affirmed the trial court's grant of summary judgment against the Hayden Business Center Condominiums Association (the Association), the assignee of the claims of various subsequent purchasers of commercial property that Pegasus Development Corporation (Pegasus) helped to build. The Court also affirmed the trial court's denial of the Association's motion to amend its complaint to add a negligence claim against Pegasus, holding that a negligence claim was barred by precedent establishing that a purchaser of property can sue only in contract for economic harm arising out of defective construction.
The opinion was authored by Judge Thompson and joined by Judges Gemmill and Irvine.
An implied warranty of good workmanship claim is a contract claim, and thus generally only the parties to a contract may bring such a claim. But there are exceptions to this limitation. One exception that the Arizona Supreme Court has recognized permits subsequent purchasers of homes to bring such implied warranty claims against the entity that manufactured the homes. This exception is based on public policy considerations, including the relative unsophistication of homebuyers as compared to homebuilders and the increasing mobility of families. In this case, however, the Court of Appeals was asked to extend this exception to subsequent purchasers of commercial buildings. The Court declined to do so, reasoning that the same public policy factors are not present with respect to commercial properties, becuase there is not generally a "gross disparity in sophistication" between buyers and sellers of commercial properties, and because commercial buildings "generally are not mass-produced." The Court accordingly affirmed the trial court's grant of summary judgment against the Hayden Business Center Condominiums Association (the Association), the assignee of the claims of various subsequent purchasers of commercial property that Pegasus Development Corporation (Pegasus) helped to build. The Court also affirmed the trial court's denial of the Association's motion to amend its complaint to add a negligence claim against Pegasus, holding that a negligence claim was barred by precedent establishing that a purchaser of property can sue only in contract for economic harm arising out of defective construction.
The opinion was authored by Judge Thompson and joined by Judges Gemmill and Irvine.
Posted date: Thu, Jan 27, 2005
Monday, January 24, 2005
Bill Introduced to Raise Mandatory Judicial Retirement Age to 75
A concurrent resolution, SCR 1013, has been introduced in the State Senate, which would raise the mandatory judicial retirement age from 70 to 75 years of age.
Notably, Chief Justice Jones will reach the mandatory retirement age of 70 in June of 2005.
If the concurrent resolution passes, it will need to be approved by the voters in the 2006 general election before taking effect.
A concurrent resolution, SCR 1013, has been introduced in the State Senate, which would raise the mandatory judicial retirement age from 70 to 75 years of age.
Notably, Chief Justice Jones will reach the mandatory retirement age of 70 in June of 2005.
If the concurrent resolution passes, it will need to be approved by the voters in the 2006 general election before taking effect.
Posted date: Mon, Jan 24, 2005
Thursday, January 20, 2005
Cook v. Cook: Division One Holds Arizona Law Governs Substantive Boundaries of Marriage, even where Marriage was Performed Out-of-State
Husband (Appellant) and Wife (Appellee) are first cousins. They were married in Virginia in 1984 and moved to Arizona in 1989.
In 1997, Husband filed a petition for dissolution, which was granted. Before the Court of Appeals, Husband challenged the trial court's jurisdiction to issue the decree of dissolution on the ground that there was no valid marriage.
The Cooks' marriage between first cousins was in 1984 (and continues to be today) legal under the laws of Virginia. Before 1996, Arizona law provided that marriages valid in the state where they were solemnized were valid in Arizona. Ariz. Code of 1939 Sec. 63-108 (currently codified as A.R.S. Sec. 25-112(A)). In 1996, the Arizona Legislature amended Sec. 25-112(A) to add the phrase "except marriages that are void and prohibited by Sec. 25-101." Section 25-101, in place since 1962, has always prohibited marriage between first cousins.
The Court of Appeals first considered whether the validity of the Cook's marriage should be determined under the law of Virginia or the law of Arizona. The Court first noted that Arizona generally follows the rule that the lex loci where the marriage was contracted determines its validity. The Court went on to state, though, that Arizona has always said that "the power to define a valid marriage is vested in this state's legislature and not in the legislature (or judiciary) of another state nor in the judiciary of this state." Quoting Horton v. Horton, 22 Ariz. 490, 495-96 (1921). The Court thus reasoned that in the absence of constitutional concerns dictating a contrary result, the parameters of marriage in Arizona are determined by the people, either through the legislature or through direct mandate.
In reaching this conclusion, the Court specifically distinguished Arizona law from that of the Restatement (Second) of Conflict of Laws which, in Section 283, directs courts to evaluate the validity of a marriage under the law of the state with which the spouses and the marriage had "the most significant relationship... at the time of the marriage." The Court based its distinction on the fact that the Restatement view calls for consideration of the public policy of the state in which the marriage was contracted. Seizing on the importance of public policy to the Restatement view, the Court of Appeals reaffirmed the principle set out in Horton that the Arizona legislature is, subject to constitutional constraints, free to ignore the public policies of other states in determining the best such policies for Arizona. The Court then cited previous Arizona cases as establishing the principle that where the legislature has clearly spoken on a subject, its words constitute the state's public policy on that subject. Taken together, the foregoing principles led to the Court's holding that Arizona law governs the validity of the Cook's marriage as "Arizona should not be held hostage to the policies of another state on a subject so vital as who may or may not marry."
The Court next analyzed the validity of the marriage under Arizona law. The 1996 amendments to A.R.S. Sec. 25-112(A) prohibit the recognition of out-of-state marriages between people who would not be permitted to marry in Arizona. Before continuing, it should be noted that the Court specifically declined to consider the Federal constitutional issues raised by this law, deeming them waived in this case. The Court first noted Arizona's longstanding rule that legislation may not retroactively disturb vested rights. The Court first concluded that marriage is a substantive, rather than a procedural, right. Then, by analogy to property rights and with discussion of complementary principles of community property law, the Court concluded that the marriage right vests at the time of the marriage. In this case, then, because the parties: were validly married in the state in which the marriage was contracted and resided in Arizona for a period of time in which their marriage was authorized by Arizona law, their rights to have the marriage recognized was a vested one.
As a final matter, the court concluded that its prospective construction of the 1996 amendments avoided any constitutional questions as to the amendments' potentially impermissible retroactive effect.
Judge Barker authored the opinion. Judges Portley and Thompson joined.
Husband (Appellant) and Wife (Appellee) are first cousins. They were married in Virginia in 1984 and moved to Arizona in 1989.
In 1997, Husband filed a petition for dissolution, which was granted. Before the Court of Appeals, Husband challenged the trial court's jurisdiction to issue the decree of dissolution on the ground that there was no valid marriage.
The Cooks' marriage between first cousins was in 1984 (and continues to be today) legal under the laws of Virginia. Before 1996, Arizona law provided that marriages valid in the state where they were solemnized were valid in Arizona. Ariz. Code of 1939 Sec. 63-108 (currently codified as A.R.S. Sec. 25-112(A)). In 1996, the Arizona Legislature amended Sec. 25-112(A) to add the phrase "except marriages that are void and prohibited by Sec. 25-101." Section 25-101, in place since 1962, has always prohibited marriage between first cousins.
The Court of Appeals first considered whether the validity of the Cook's marriage should be determined under the law of Virginia or the law of Arizona. The Court first noted that Arizona generally follows the rule that the lex loci where the marriage was contracted determines its validity. The Court went on to state, though, that Arizona has always said that "the power to define a valid marriage is vested in this state's legislature and not in the legislature (or judiciary) of another state nor in the judiciary of this state." Quoting Horton v. Horton, 22 Ariz. 490, 495-96 (1921). The Court thus reasoned that in the absence of constitutional concerns dictating a contrary result, the parameters of marriage in Arizona are determined by the people, either through the legislature or through direct mandate.
In reaching this conclusion, the Court specifically distinguished Arizona law from that of the Restatement (Second) of Conflict of Laws which, in Section 283, directs courts to evaluate the validity of a marriage under the law of the state with which the spouses and the marriage had "the most significant relationship... at the time of the marriage." The Court based its distinction on the fact that the Restatement view calls for consideration of the public policy of the state in which the marriage was contracted. Seizing on the importance of public policy to the Restatement view, the Court of Appeals reaffirmed the principle set out in Horton that the Arizona legislature is, subject to constitutional constraints, free to ignore the public policies of other states in determining the best such policies for Arizona. The Court then cited previous Arizona cases as establishing the principle that where the legislature has clearly spoken on a subject, its words constitute the state's public policy on that subject. Taken together, the foregoing principles led to the Court's holding that Arizona law governs the validity of the Cook's marriage as "Arizona should not be held hostage to the policies of another state on a subject so vital as who may or may not marry."
The Court next analyzed the validity of the marriage under Arizona law. The 1996 amendments to A.R.S. Sec. 25-112(A) prohibit the recognition of out-of-state marriages between people who would not be permitted to marry in Arizona. Before continuing, it should be noted that the Court specifically declined to consider the Federal constitutional issues raised by this law, deeming them waived in this case. The Court first noted Arizona's longstanding rule that legislation may not retroactively disturb vested rights. The Court first concluded that marriage is a substantive, rather than a procedural, right. Then, by analogy to property rights and with discussion of complementary principles of community property law, the Court concluded that the marriage right vests at the time of the marriage. In this case, then, because the parties: were validly married in the state in which the marriage was contracted and resided in Arizona for a period of time in which their marriage was authorized by Arizona law, their rights to have the marriage recognized was a vested one.
As a final matter, the court concluded that its prospective construction of the 1996 amendments avoided any constitutional questions as to the amendments' potentially impermissible retroactive effect.
Judge Barker authored the opinion. Judges Portley and Thompson joined.
Posted date: Thu, Jan 20, 2005
Miller v. Hehlen: Division Two Panel Upholds Trial Court’s Grant of Summary Judgment in Favor of Former Employee in Employment Contract Case
Miller operated an H&R Block franchise until the franchise agreement was terminated in April 2001. Miller employed Hehlen at the franchise through Spring 2001. At the beginning of each tax season, Hehlen and Miller executed a form employment agreement supplied by H&R Block. The agreement was between “William Hehlen” and “Margaret Miller, doing business as H&R Block.” Hehlen began working elsewhere shortly after Miller’s franchise was terminated. He contacted customers using a customer list he obtained from Miller after his employment had ended, allegedly in breach of noncompetition provision and other covenants in the employment contract. Miller sued, alleging breach of contract, misappropriation of trade secrets, conversion, tortious interference with a business expectancy, and defamation.
In deciding the breach of contract claim, the court of appeals found that Miller had no right to enforce the employment agreement because her franchise had been terminated and she no longer did business as “H&R Block.” The court found that if Miller wanted the relevant provisions of the employment agreement to apply to her personally, she should have required Hehlen to execute an addendum or amendment to that effect. The court further found there was no assignment between Miller’s former H&R Block franchise and Miller’s subsequent business, MJM & Associates.
The court of appeals found that the customer list at issue did not constitute a “trade secret” under A.R.S. § 44-401. The court further found that Hehlen did not use improper means to acquire the customer list because Miller had given it to him after his employment had ended. Given that Hehlen did not act improperly in calling the customers on the list he received from Miller, the intentional interference with a business relationship claim also failed. The court also rejected Miller’s conversion claim, finding that Miller had failed to establish that (1) the customer list constituted tangible property or intangible property merged with a document or (2) Hehlen had intended to or had done anything with the customer list that was inconsistent with Miller’s rights. Finally, the court found that Miller had failed to present any evidence to controvert Hehlen’s testimony that he did not defame Miller.
Judge Pelander authored the opinion; Judges Flórez and Espinosa joined.
Miller operated an H&R Block franchise until the franchise agreement was terminated in April 2001. Miller employed Hehlen at the franchise through Spring 2001. At the beginning of each tax season, Hehlen and Miller executed a form employment agreement supplied by H&R Block. The agreement was between “William Hehlen” and “Margaret Miller, doing business as H&R Block.” Hehlen began working elsewhere shortly after Miller’s franchise was terminated. He contacted customers using a customer list he obtained from Miller after his employment had ended, allegedly in breach of noncompetition provision and other covenants in the employment contract. Miller sued, alleging breach of contract, misappropriation of trade secrets, conversion, tortious interference with a business expectancy, and defamation.
In deciding the breach of contract claim, the court of appeals found that Miller had no right to enforce the employment agreement because her franchise had been terminated and she no longer did business as “H&R Block.” The court found that if Miller wanted the relevant provisions of the employment agreement to apply to her personally, she should have required Hehlen to execute an addendum or amendment to that effect. The court further found there was no assignment between Miller’s former H&R Block franchise and Miller’s subsequent business, MJM & Associates.
The court of appeals found that the customer list at issue did not constitute a “trade secret” under A.R.S. § 44-401. The court further found that Hehlen did not use improper means to acquire the customer list because Miller had given it to him after his employment had ended. Given that Hehlen did not act improperly in calling the customers on the list he received from Miller, the intentional interference with a business relationship claim also failed. The court also rejected Miller’s conversion claim, finding that Miller had failed to establish that (1) the customer list constituted tangible property or intangible property merged with a document or (2) Hehlen had intended to or had done anything with the customer list that was inconsistent with Miller’s rights. Finally, the court found that Miller had failed to present any evidence to controvert Hehlen’s testimony that he did not defame Miller.
Judge Pelander authored the opinion; Judges Flórez and Espinosa joined.
Posted date: Thu, Jan 20, 2005
Wednesday, January 5, 2005
Arizona Supreme Court Issues Minutes
The Arizona Supreme Court has issued its minutes for January 4, 2005, in two parts, Part A and Part B. The Court ruled on two special action petitions, denying both. The Court ruled on 45 petitions for review, granting 4. The Court granted review in the following cases that were subject of previous postings: Bennett v. Brownlow, Morgan v. Carrillon Investments, and Ry-Tan Construction v. Washington Elementary.
The Arizona Supreme Court has issued its minutes for January 4, 2005, in two parts, Part A and Part B. The Court ruled on two special action petitions, denying both. The Court ruled on 45 petitions for review, granting 4. The Court granted review in the following cases that were subject of previous postings: Bennett v. Brownlow, Morgan v. Carrillon Investments, and Ry-Tan Construction v. Washington Elementary.
