AZAPP Blog

In Re Commitment of Flemming (2/21/06): Division Two Affirms Decision to Stay, Not Dismiss, Civil Commitment of Pedophile Sentenced to Prison Term for Attack on Staff Member While Under Civil Commitment

Fleming, an admitted pedophile, was adjudicated a sexually violent person and was civilly committed for treatment pursuant to A.R.S. § 36-3707(B)(1) of the state Sexually Violent Persons Act (SVPA). While under civil commitment, Flemming attacked a staff member, was convicted of aggravated assault, and was sentenced to serve 3.5 years in prison. The trial court granted the state’s request to stay treatment, evaluation, testing and reporting requirements under the SVPA pending Flemming’s release from prison and return to civil commitment. The court denied a “motion to dismiss” brought by Flemming, who argued that the state’s discontinuance of the services and review procedures provided by statute for civilly committed sex offenders warranted a dismissal of the SVPA proceedings. Flemming appealed.

The Arizona Court of Appeals affirmed. The Court held that the SVPA proceedings remained pending because the criminal conviction and incarceration did not constitute a “discharge” for purposes of terminating the court’s jurisdiction under § 36-3704(D). While not expressly authorized by statute, a stay of the SVPA proceedings and commitment was a necessary and permissible consequence of Flemming’s incarceration. Because the civil commitment was stayed while he served his prison term, Flemming had no “right” to receive the “care, supervision and treatment” or the procedural protections afforded by statute to those who are civilly committed.

Chief Judge Pelander wrote the opinon; Presiding Judge Espinosa and Retired Judge Druke concurred.

Williams v. Baugh (2/20/07): Division Two Holds that ARS 13-807 Does Not Preclude a Defendant From Raising an Affirmative Defense in a Civil Proceeding Arising out of Acts for Which he has been Convicted in a Criminal Case

In 2003, Williams and Baugh had a disagreement in a bar during which Williams threatened Baugh with a knife. Later that night, a friend drove Baugh to Williams' home, where he entered and struck Williams with a gun. Baugh pled guilty to aggravated assault and burglary. Williams then sued Baugh in tort alleging "physical assault and battery." Baugh responded to Williams' motion for summary judgment arguing justification, contributory negligence, and comparative fault. The Superior Court, however, precluded Baugh from raising his justification defense, reasoning that such a defense was precluded by ARS 13-807. Baugh filed an interlocutory appeal.

Division Two first noted that it had jurisdiction under ARS 12-2101(G). On the merits, the Court noted that Section 13-807 prohibits defendants from denying in a civil case "the essential elements" of their criminal conviction. The Court further explained, however, that 13-807 makes no mention of affirmative defenses. Reasoning from the presumption that the legislature is aware of existing statutes when crafting new ones, see Washburn v. Pima County, 81 P.3d 1030, 1035 (App. 2003), the Court held that the legislature cannot be said to have intended to include any affirmative defenses within the class of arguments precluded by Section 13-807 so long as the affirmative defense does not itself contradict the essential elements of the criminal conviction.

The Court found that raising a justification defense in this case does not contradict any essential elements of aggravated assault. The Court also held that neither a defense of contributory negligence or comparative fault principles challenge any of the "essential elements" of aggravated assault. Thus Baugh can properly raise those arguments against liability to Williams.

The Court therefore REVERSED the judgment of the Superior Court. Judge Howard authored the opinion and Judges Pelander and Vasquez joined.

In re Carly Van Dox (2/22/2007): Supreme Court Clarifies the Standard the Disciplinary Commission Must Apply When Reviewing a Hearing Officer’s Findings of Fact

Ms. Van Dox, a licensed realtor, represented the sellers in a real estate transaction in a private mediation, honestly but erroneously believing that her representation of did not constitute the unauthorized practice of law (UPL). The mediation ended without resolving the dispute and the buyers subsequently filed a complaint with the Arizona State Bar. Following an evidentiary hearing, a Hearing Officer concluded that Ms. Van Dox’s actions constituted UPL, and violated ER 5.5 and Supreme Court Rule 31. The Hearing Officer recommended diversion, finding that Ms. Van Dox’s actions were negligent. The State Bar appealed to the Disciplinary Commission, which reversed several of the Hearing Officer’s findings and conclusions and imposed a sanction of censure. This appeal followed.

Justice Berch, writing for a unanimous court, found that the Commission failed to properly defer to the Hearing Officer’s factual findings. The court noted that in “disciplinary proceedings, the Commission must defer to a hearing officer’s factual findings and ‘may not reject the hearing officer’s findings of fact related to discipline unless it determines that the factual findings are clearly erroneous.’” The court further noted that the Commission may not make additional findings of fact in a disciplinary proceeding, as it had done in this case. Applying the clearly erroneous standard, the court determined that the Hearing Officer had not erred in his factual findings. Moreover, the court upheld the Hearing Officer’s legal conclusion that an honest but erroneous belief that one’s actions do not constitute UPL does not constitute a “knowing violation.” Finally, the court determined that an informal reprimand was the appropriate sanction for UPL and failure to timely respond to inquiries from the state bar.

In Re: MH 2006-000749 (2/13/07): Division One Holds That a Patient Has the Power to Waive Attendance at an Involuntary Treatment Hearing, but the Patient’s Waiver Is Ineffective Unless the Superior Court Expressly Finds that it Is Given Knowingly and Intelligently.
A medical doctor and a clinical liaison petitioned the superior court for an involuntary mental health evaluation of Appellant. After Appellant had been evaluated, another medical doctor filed a petition asking that Appellant be compelled to undergo treatment. In Response to the second petition, the trial court issued a “Detention Order for Treatment and Notice,” and set a hearing pursuant to A.R.S. § 36-539 (2003). Under A.R.S. § 36-539(B), “[t]he patient and his attorney shall be present at all hearings . . . .” Accordingly, the Appellant was detained in an annex to the Maricopa Medical Center pending the hearing concerning the court-ordered treatment. After the Appellant did not appear for the May 1 hearing, notwithstanding her detention, the trial court sua sponte called the court’s transportation officer to testify about Appellant’s absence after her court-appointed counsel could not explain Appellant’s absence. The officer conveyed that he had told Appellant she did not have to go to court if she did not want to, but that he was the person who would take her if she wanted to go. Appellant said (twice) that she could not go with him because she did not know him.
The trial court found Appellant had voluntarily waived her presence, explaining that it would not “force a person to come and aggravate any potentially already fragile situation.” Although recognizing that involuntary treatment by court order is “a serious deprivation of liberty,” the Court of Appeals agreed that a patient could – as with most other rights – waive the right to be present at a hearing. The Court of Appeals further explained that “although the words ‘shall be present’ in section 36-539(B) seem to require the patient’s presence at all hearings, because the purpose of the statute is to grant the patient a right, the statutes does not preclude the patient from waiving that right by voluntarily choosing not to appear at a hearing.” The Court further explained that although a patient has the power to waive attendance at an involuntary treatment hearing, the patient’s waiver is ineffective unless the superior court expressly finds that it is given knowingly and intelligently. In this case, the evidence did not support the superior court’s conclusion that Appellant knowingly and intelligently waived her right to be present. The Court of Appeals therefore remanded for a new hearing on that issue.
The decision was authored by Judge Johnsen (her first civil opinion); Judges Timmer and Norris concurred.

Acosta v. Phoenix Indemnity Insurance Company(02/14/07): Division Two Reverses Grant of Summary Judgment in Favor of Insurer in Automobile Accident Case.

After being injured in a car accident while riding as a passenger, Appellant filed a negligence lawsuit against the car’s driver and owner. The driver filed a petition for bankruptcy. Appellant, the driver, and the insurance company then entered into a settlement agreement in which the parties agreed that Appellant would file an action against the insurer for bad faith as though Appellant had obtained a judgment against the driver at a trial on the merits, and after the judgment became final, the driver had assigned his bad faith claims against the insurer to Appellant. Appellant then filed a bad faith claim against the insurer, alleging that the insurer had breached the implied covenant of good faith and fair dealing by failing to settle Appellant’s claim against the driver. The parties filed cross-motions for summary judgment, with the insurer arguing that it could not have settled because the driver had filed a bankruptcy petition. The trial court denied Appellant’s motion and granted the insurer’s motion, finding that the insurer had no duty to solicit a settlement before the driver filed his bankruptcy petition. The court of appeals reversed. The court agreed with the trial court’s view that the evidence showed a high potential that Appellant would have been successful in his negligence action and recovered damages in excess of the policy limit. But the court also found that there was an issue regarding the driver’s non-permissive use of the car, with the insurer initially relying on the driver’s statement that he did not have permission to drive the car, and later changing its position and conceding coverage. The court determined that the case would have to be remanded to the trial court for a determination of when the insurer had changed its position on coverage, which would affect the question of whether the Apellant was estopped from claiming recovery in excess of the policy limits (because the driver had informed the insurer early on that his use of the car was non-permissive.) The court was unconvinced by the insurer’s claim that settlement was impossible because of the automatic bankruptcy stay, noting that the insurer could have agreed to the settlement and then sought bankruptcy court approval before making payments. Accordingly, the court reversed the grant of summary judgment in the insurer’s favor, and remanded the case.

The opinion was authored by Judge Vásquez and joined by Judges Pelander and Howard.

Garcia v. Browning/State (2/9/07): Supreme Court Holds That Changes to the Criminal Code’s Affirmative Defense and Justification Defense Provisions Apply Only to Offenses Occurring on or After Its Effective Date of April 24, 2006.

On December 13, 2004, a Pima County grand jury indicted David Garcia for first degree murder. Garcia subsequently disclosed several justification defenses, including self-defense, third-party defense, and crime prevention. At the time of the offense, A.R.S. § 13-205 (2001) required that a defendant prove any justification defense by a preponderance of the evidence. However, before Garcia’s trial began, the legislature enacted legislation that, among other things, amended A.R.S. §§ 13-103(B) and -205(A) to provide that justification defenses are not affirmative defenses. When the superior court refused to instruct the trial jury using the new version of A.R.S. § 13-205 (Supp. 2006), Garcia filed a special action. The Court of Appeals accepted jurisdiction and held that the new version of A.R.S. § 13-205 applied to Garcia’s trial. Id.
The Supreme Court reversed, emphasizing that absent a clear expression of retroactivity, a newly enacted law applies only prospectively. Although the legislation at issue was enacted pursuant to an emergency clause that stated it would become “operative immediately,” that clause simply meant that the bill would go into effect on the date it is signed by the Governor (instead of ninety days after the end of the legislative session). That language has no effect on whether the bill applies to antecedent events. Although legislation that affects only how the parties prepare for trial and how the trial is conducted may be applied in a trial where the underlying crime or indictment occurred before the new legislation, Arizona cases have consistently held that the date of the offense is the operative event for retroactivity analysis when a new statute regulates primary conduct. In this case, the new legislation does not merely affect the conduct of trial, but rather also regulates primary conduct by declaring that conduct that is justified “does not constitute criminal or wrongful conduct.” Accordingly, the Supreme Court concluded, the change to the criminal code’s affirmative defense and justification defense provisions apply only to offenses occurring on or after its effective date of April 24, 2006.

Judge Ryan wrote the opinion for the unanimous panel.

Hall v. Smith (2/8/07): Division Two Holds That A Defamatory Letter Sent to Parent Corporation of Party to Litigation is Protected By the Absolute Judicial Privilege.

Sandra Smith brought a wrongful termination suit against CIGNA Health Plan of Arizona, Inc. (CIGNA AZ), its Tucson Medical Director, and Mitchell Hall, its Executive Director. After nearly eight years of litigation, Smith sent a letter to Edward Hanway, the CEO of CIGNA Corporation (CIGNA), the parent company of CIGNA AZ outlining her allegations against CIGNA AZ and accusing Hall of, among other things, diverting substantial funds from the company for use in his personal business ventures. Smith suggested that she and Hanway engage in direct negotiations to resolve her claims. After learning of this letter, Hall filed a counterclaim against Smith alleging defamation. Smith ultimately settled her wrongful termination claims shortly before trial, leaving only Hall’s defamation counterclaim for trial. Following a mistrial on the defamation claim, both parties moved for summary judgment. The superior court granted summary judgment in favor of Smith, finding her letter to Hanway covered by the absolute judicial privilege, which protects a litigant and his attorney from suit arising from the publication of otherwise defamatory matter in the context of that litigation. Hall appealed, asserting that the absolute judicial privilege does not apply to defamatory material published to non-parties in the litigation.

Division Two of the Arizona Court of Appeals affirmed, holding that under Arizona law, the absolute judicial privilege applies to communications to non-parties who have a sufficiently close or direct relationship to the proceeding. According to the court, whether a non-party has a sufficiently close or direct relationship to the proceedings to trigger the absolute judicial privilege must be determined on a case-by-case basis. CIGNA, as a separate corporate entity, was clearly not a party to the litigation. However, the court found that CIGNA was directly involved in the Smith-CIGNA AZ litigation. CIGNA selected the Arizona attorneys who represented the defendants in the litigation, and CIGNA employees/attorneys “orchestrat[ed] the defense of Smith’s lawsuit against CIGNA AZ.” Moreover, CIGNA sent several employees to investigate Hall’s alleged embezzlement of corporate funds. Finally, the court noted that the settlement agreement between Smith and CIGNA AZ included language releasing CIGNA from liability. The court found persuasive cases from other jurisdictions applying the privilege to communications with a litigant’s insurer, noting that although the nature of CIGNA’s interests differed somewhat from those of an insurer, its interests and involvement in the litigation were similarly substantial.

Judge Pelander authored the unanimous opinion joined by Presiding Judge Howard and Judge Vasquez.

In Re MH2006-000023 (2/13/07):Division One Holds That 72-Hour Notice Requirement in A.R.S. § 36-536(A), Addressing Involuntary Treatment For Mental Disorders, Must Be Strictly Complied With And Cannot Be Waived.

JB was ordered by the trial court to undergo involuntary inpatient/outpatient mental health treatment after attending a hearing that occurred approximately 42 hours after JB received notice of the hearing. A.R.S. §36-536(A) requires 72 hour notice. JB did not object to the notice she received at the time of her hearing.

JB appealed, asking that the trial court’s order be vacated because she did not receive 72 hour notice. The State conceded that JB did not receive 72 hours notice, but argued that she waived the issue on appeal because she failed to object at the time of the hearing. The State further noted that JB did not argue she was prejudiced by the shorter notice.

The Court of Appeals, Division One, vacated the order, emphasizing that the notice statute declares that “[t]he notice provision of this section cannot be waived.” The court held that this statutory provision against waiver of the 72-hour notice period applies to the hearing itself and to appellate proceedings. “Involuntary treatment by court order is a serious deprivation of liberty, and proceedings that may result in such restraint must provide the prospective patient with appropriate due-process protection.” (citations and internal quotations omitted).

Judge Ehrlich authored the opinion, with Judge Irvine, Presiding Judge, and Judge Pro Tempore Andrew W. Gould concurring.

Picaso v. Tucson Unified School District (2/13/07): Division Two Holds that Mother Who Pleaded Guilty to Misdemeanor Child Abuse for Accidental Death of Her Son and Later Sued for Wrongful Death May Dispute that Her Negligence Was a Cause of the Boy’s Death and May Explain Why She Accepted the Guilty Plea

A fourteen-month-old boy was struck and killed by a school bus in the street in front of his house. His mother (“Mother”) pleaded guilty to misdemeanor child abuse because the boy was outside unsupervised. She and her husband (“Plaintiffs”) later sued the school district for wrongful death. The trial court ruled that evidence of the plea was admissible against Mother, and that A.R.S. § 13-807 precluded Mother from denying that her negligence was a cause of the boy’s death. At trial, the court precluded Mother from presenting evidence explaining why she pleaded guilty, and instructed the jury that Mother’s negligence was a cause of the boy’s death. The jury returned a verdict for the school district. In a motion for a new trial, Plaintiffs argued the court had erred by precluding Mother from presenting evidence denying the elements of the misdemeanor offense or explaining her reasons for pleading guilty. The trial court denied the motion for a new trial, ruling that the evidence was properly precluded under either § 13-807, or under common law claim preclusion, and to prevent “a waste of time or confusion of the issues for the jury.”

The Court of Appeals reversed, finding the trial court erred by precluding Mother from contradicting or explaining her reasons for accepting the guilty plea. Section 13-807 was not applicable by its own terms. The statue precludes a defendant convicted in a criminal proceeding from subsequently denying the essential allegations of the criminal offense in a civil proceeding brought by the state or the victim against the criminal defendant. Here, however, the convicted criminal defendant, Mother, was a plaintiff, not a defendant, in the subsequent civil action.

The court found, as an issue of first impression for Arizona, that a criminal guilty plea does not provide a basis for common law issue preclusion in a subsequent civil suit because the question of guilt is not actually litigated. The court ruled, consistent with the Restatement (Second) of Judgments § 27 cmt. e (1982), that an opposite ruling would, contrary to public policy, discourage plea bargains. The court rejected the claim that its holding was an “open invitation to criminals who plead guilty to sue others for the results of their own crimes” because the guilty plea and surrounding facts remain admissible, and will “prevent recovery” in most situations. Rule 403, Ariz. R. Evid. (allowing exclusion of evidence to prevent a waste of time or confusion of the issues) did not justify the trial court’s ruling to exclude the offered evidence because the issue of whether Mother was a cause of her son’s death was not “collateral,” and because the court had not merely excluded the evidence, but had instructed the jury what to find on that factual issue. Because the trial court’s ruling was broad and was based on preclusion, not on the rules of evidence, no offer of proof was necessary under Rule 103(a)(2), Ariz. R. Evid., to preserve the claim of error.

Presiding Judge Howard wrote the opinion, Judge Pelander and Judge Vásquez concurred.

City of Bisbee v. Arizona Water Co. (2/8/07): Division Two Affirms Courts Have Jurisdiction to Determine Whether a Utility Has a Right to Make Use of a City’s Public Streets and Rights-of-way Without a Proper Franchise and Affirms Grant of Summary Judgment in Favor of City

The City of Bisbee filed a complaint alleging that AWC was operating in the City limits without an approved and ratified franchise from the City. The City subsequently moved for summary judgment claiming that AWC had no legal right to make use of the public streets and rights-of-way in Bisbee, AWC was legally responsible for the relocation costs associated with the City’s sewer improvements, and the broad reservation of rights in the subsurface of certain streets purportedly retained by AWC’s predecessor in interest was void as against public policy. AWC moved to dismiss, arguing that the Arizona Corporation Commission, not the superior court, had jurisdiction to hear the matter. The trial court rejected the jurisdiction argument, granted the City’s motion, and this appeal followed.

Judge Pelander, writing for a unanimous panel, found that the issues raised in the complaint did not fall within the exclusive jurisdiction of the Corporation Commission because AWC had not obtained a proper franchise from City at the time the action was filed. Moreover, the court found that the action did not involve the regulatory authority exclusive to the Commission, but instead concerned the rights and obligations of the parties regarding who should bear costs of relocating equipment. The court rejected AWC’s argument regarding its broad reservation of rights reserving “any land or ground lying below the surface,” finding it was void as against public policy. Additionally, the court found that A.R.S. § 40-283(A) “implies that a franchise from a municipality is necessary to operate in the municipality’s streets,” the City had demanded that AWC obtain the franchise by filing the action, and therefore affirmed that AWC needed to obtain a franchise to continue providing service to the City. Finally, relying on the City’s proper exercise of police power in protecting the public health and welfare, the court affirmed that AWC was obligated to pay relocation costs related to the City’s sewer improvements.

Grace Howard Allen v. ADES and T.S.A (2/8/07):Division Two Holds 2-1 That Judge Abused His Discretion In Denying Maternal Aunt’s Motion To Intervene In Juvenile’s Dependency Proceedings.

T, a minor, was born to Karen and Carl in September 2003. When T was one week old, Karen left T with his maternal uncle, Marlon Allen, and Marlon’s wife, Grace Allen (then Grace Howard). Grace had been Marlon’s “significant other” for 18 years, and Marlon and Grace married during the time they cared for T, sometime in 2004. Grace filed a dependency petition in April 2004, and by July 2004, T’s parents had signed documents consenting to Grace and Marlon’s adoption of T. In August 2004, the juvenile court granted temporary custody of T to Grace and Marlon, who retained temporary custody of him until August 2006.

On August 4, 2006, Grace was taken to the hospital after expressing suicidal ideations and using a large amount of cocaine and alcohol. Grace’s psychological evaluation noted that she “had a history of cocaine use and alcohol use which ha[d] been in remission for many years.” Grace reported she had a long history of depression that had recently worsened. CPS removed T on August 10, 2006, the same day Grace was released.

Real party in interest DES filed a dependency petition alleging no adult in T’s home was appropriately caring for him, and Grace filed a motion to intervene on August 17. Before ruling on Grace’s motion, the respondent judge awarded legal custody of T to ADES and ordered that T remain in the group home. He later denied Grace’s motion to intervene. In September, CPS referred Grace “for a home study” regarding placement for T, but ruled Grace out because she “did not meet the preliminary requirements for placement.” The respondent judge held a permanency hearing on October 6 and ordered ADES to file a motion to terminate the parents’ parental rights. Grace filed a second motion to intervene that day and included with her motion an Arizona Children Association’s adoptive home study that recommended Grace “be certified as acceptable to adopt.” The judge denied Grace’s motion to intervene, and she filed a petition for special action.

Reviewing for abuse of discretion, the Court first noted that Grace sought to intervene pursuant to Ariz. R. Civ. P. 24(b). When determining whether permissive intervention should be granted, the trial court “must first decide whether the statutory conditions promulgated in Rule 24(b)(1) or 24(b)(2) have been satisfied.” Relying on Bechtel v. Rose, 150 Ariz. 68, 722 P.2d 236 (1986) — which allowed a child’s grandparents to intervene in the dependency process because, inter alia, pursuant to statute, grandparents are among those eligible to become guardians of a child found dependent — the court of appeals found that “if a child’s grandparents’ interest . . . is sufficient for Rule 24(b)(2) purposes, so is [Grace’s]. She is T’s maternal aunt and T has been in her custody for most of his life.”

If the conditions of Rule 24(b) are met, then the juvenile court must determine whether the party opposing intervention has made a sufficient showing intervention is not in the child’s best interest. The Court noted the factors laid out in Bechtel relevant to this inquiry, and found that in his minute entry “the bulk of the respondent judge’s comments . . . refer not to the Bechtel factors . . . , but instead to whether T should be placed with [Grace] once Karen and Carl’s parental rights are terminated. A proper inquiry under Bechtel focuses not on the eventual outcome of the proceedings, but rather on the effect intervention may have on the proceedings.” Thus, the Court held, it was improper for the respondent judge to deny Grace’s motion to intervene on the basis that she ultimately may not be awarded permanent custody of T, rather than permitting her to litigate that issue as a party.

Judge Brammer authored the opinion with Judge Eckerstrom concurring; Judge Espinosa dissented.

Osuna v. Wal-Mart Stores, Inc.(2/8/07): Division Two Reaffirms that Court of Appeals Lacks Jurisdiction where Complaint is Voluntarily Dismissed

Plaintiff Osuna sued Wal-Mart for various contract and employment related claims. After amending her complaint to state only claims for unjust enrichment Osuna sought leave to amend her complaint to add other claims. The superior court denied leave to amend. Osuna then moved, pursuant to stipulation with Walmart, to dismiss her unjust enrichment claims. The trial court granted dismissal and entered final judgment for Walmart, from which Osuna appealed.
Division Two, in an opinion by Judge Brammer, dismissed the appeal for lack of jurisdiction. It held that even though final judgment was entered, the dismissal was not, by its terms, a dismissal with prejudice. Therefore no appeal from it can lie. Addressing Osuna's argument that she abandoned her right to refile the action, thus creating appellate jurisdiction, Division Two held that because the complaint was dismissed by stipulation, neither Osuna nor Walmart are "aggrieved parties" and thus neither has a right to appeal.

The Court also declined to exercise discretionary special action jurisdiction finding the issues presented no basis for it.

Judges Eckerstrom and Espinosa Concurred.

Gorney v. Meaney (1/31/2007): Unanimous Division Two Panel Holds that Stringent Expert Witness Pleading Requirements of ARS 12-2603 Contain No Exceptions for Informed Consent Cases

Gorney sued Meaney for medical malpractice stemming from an alleged failure to obtain his informed consent to knee surgery. Gorney then certified that expert testimony was needed to prove his claim and provided an affidavit as required by 12-2603(B). The affidavit simply stated that a doctor must inform a patient of risks of surgery and failure to do so is a breach of the applicable standard of care.

Meaney moved for summary judgment, claiming that the affidavit was deficient under 12-2603, which requires that the affidavit set forth the factual basis for the claim, the breach of duty and the manner in which the breach caused the claimant's damages. The superior court granted Meaney's motion and Gorney appealed.

The appellate court rejected Gorney's contention that informed consent cases need not conform precisely to the requirements of 12-2603 because, by necessity, experts in informed consent cases must rely on the claimant's statement of facts. Gorney argued that such reliance would improperly inject the expert witness into a fact-finding role. The court considered the treatment of expert affidavit requirements of other states, including those like Illinois that have an exception to the more stringent pleading requirements for informed consent cases. The court concluded that an absence of an explicit exception in Arizona's statute doomed Gorney's argument -- informed consent cases, like all other medical malpractice cases in which expert testimony will be offered, must meet the stringent requirements of 12-2603.

Judge Espinoza authored the opinion in which Presiding Judge Eckerstrom and Judge Brammer concurred.

Center Bay Gardens v. City of Tempe (1/30/07): Division One Holds That Adjacent Property Owner Alleged Sufficient Specific Harm Peculiar to Itself and Different From That of the General Public to Have Standing to Challenge a Zoning Decision.

After the City of Tempe approved zoning changes that would allow development of a proposed apartment complex adjacent to three existing apartment complexes owned by various entities (“Center Bay”), Center Bay filed a special action complaint against the City, the City’s Board of Adjustment, and the developer. The property owner (“UMHP”) moved to intervene, and moved to dismiss two of Center Bay’s claims on standing grounds. The trial court granted the motion, and the Court of Appeals affirmed. While the first action was proceeding, UMHP submitted another application to the City for essentially the same development to be completed by a new developer. After the City approved the second application, Center Bay filed another special action. The City and other defendants this time asserted that Center Bay lacked standing to assert any of the claims, and asserted that the prior decision was “law of the case.” The trial court granted a motion to dismiss on the ground that Center Bay’s claimed damages were not specific and could be categorized as generalized economic or aesthetic effects for which standing was not appropriate.
On appeal, the Court of Appeals found the law of the case doctrine inapplicable because the Court’s prior decision did not purport to resolve the standing issue with respect to the new claims. With respect to standing, the Court explained that in Arizona, a person “aggrieved” by a zoning decision of a legislative body or board may appeal that decision by special action to the superior court, but to have standing to bring such an action, a plaintiff must allege “particularized harm” resulting from the decision – an “injury in fact, economic or otherwise.” The damage alleged must be peculiar to the plaintiff or at least more substantial than that suffered by the community at large. The Court held that Center Bay alleged specific harm peculiar to itself and different from that of the general public given that the proposed development project across the street from the presently existing apartment complex came close to tripling the existing density, doubling the existing mass, and dropping previously required landscape specifications. Particularized economic harm, the Court emphasized, may suffice for standing.
The decision was authored by Judge Barker; Judges Snow and Kessler concurred.

Parkinson v. Guadalupe Public Safety Retirement Local Board (1/30/07): Division One Holds that Disability Need Not be the Sole Cause for Resignation of an Applicant Seeking an Accidental-Disability Pension

After suffering a neck injury on the job, the Guadalupe Fire Chief (“Chief”) requested an accidental-disability pension from the Guadalupe Public Safety Retirement Local Board (“Board”) pursuant to the Public Safety Personnel Retirement System, A.R.S. § 38-841 et seq. The Board denied the request, reasoning that the Chief’s injury was not the “sole cause” of his resignation, and citing evidence suggesting that he had received a notice from the Town Manager stating an intent to terminate him for sexually offensive language and conduct. The Chief appealed to the Superior Court, which reversed, rejecting the Board’s factual conclusion that the Chief had actually received the notice as not supported by the record. The Board then appealed to Division One. The Court noted that it could affirm the superior court if that court’s decision was correct for any reason, including a reason that it did not consider. The Court did so, holding that the factual dispute regarding the Chief’s receipt of the notice of intent to terminate was irrelevant, because no law specified that an applicant’s accidental disability must be the sole cause of his resignation. Because the Chief’s unchallenged evidence confirmed that he was eligible for the pension under the statute, he was entitled to receive the pension.

The decision was authored by Judge Erlich and joined by Judge Irvine and Superior Court Judge Barton, sitting by designation.