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Thursday, June 28, 2007
Levy v. Alfaro (6/19/07): Division One Holds That the Term Reasonable Expert Witness Fees As Used in ARCP 68(d) Is Not Limited To Fees Paid To Experts For Testifying At Trial.
Levy brought a civil suit against the Alfaros alleging injuries arising from a minor traffic accident. The Alfaros made an offer of judgment pursuant to Ariz. R. Civ. P. Rule 68, which Levy refused. The matter proceeded to trial and the jury returned a verdict in favor of Levy but for less than the offer of judgment. The Alfaros then moved for sanctions pursuant to Rule 68(d). The court granted sanctions, and after offsetting the awards, entered a substantial judgment in favor of the Alfaros and deemed Levy’s judgment satisfied. Levy timely appealed.
On appeal, Levy argued that the language of Rule 68 limits sanctions for expert witness fees to only those fees for time the expert spent testifying at trial. A substantial portion of the sanction against Levy included fees for the time the Alfaros’ expert spent analyzing issues and preparing for trial. The Court of Appeals affirmed, and held that nothing in the plain language of Rule 68(d) provided for such a limitation on sanctions for expert witness fees. The Court found Levy’s citation to Rule 54(f)(2), applicable in medical malpractice cases, and case law interpreting A.R.S. § 12-332(A)(2) unpersuasive.
Judge Barker authored the opinion; Presiding Judge Norris and Judge Thompson concurred.
Levy brought a civil suit against the Alfaros alleging injuries arising from a minor traffic accident. The Alfaros made an offer of judgment pursuant to Ariz. R. Civ. P. Rule 68, which Levy refused. The matter proceeded to trial and the jury returned a verdict in favor of Levy but for less than the offer of judgment. The Alfaros then moved for sanctions pursuant to Rule 68(d). The court granted sanctions, and after offsetting the awards, entered a substantial judgment in favor of the Alfaros and deemed Levy’s judgment satisfied. Levy timely appealed.
On appeal, Levy argued that the language of Rule 68 limits sanctions for expert witness fees to only those fees for time the expert spent testifying at trial. A substantial portion of the sanction against Levy included fees for the time the Alfaros’ expert spent analyzing issues and preparing for trial. The Court of Appeals affirmed, and held that nothing in the plain language of Rule 68(d) provided for such a limitation on sanctions for expert witness fees. The Court found Levy’s citation to Rule 54(f)(2), applicable in medical malpractice cases, and case law interpreting A.R.S. § 12-332(A)(2) unpersuasive.
Judge Barker authored the opinion; Presiding Judge Norris and Judge Thompson concurred.
Posted by azapp @ Thu, Jun 28, 2007
Catrone v. Miles (6/26/2007): Division One Holds That Special Education Records Are Not Protected in Their Entirety by the Medical Records Privilege and Not Protected by an Educational Records or a Special Educational Records Privilege and Must Be Produced if Production Interest “Substantially Outweighs” Confidentiality Interest
Andrew and Stephanie Catrone’s son Patrick experienced health difficulties almost immediately after birth. As a result, Patrick suffered severe and permanent injuries, including impaired cognitive functions, neurobehavorial problems and sensory motor deficits. The Catrones alleged these injuries were caused by negligent medical care and treatment, and sued the hospital and medical professionals who provided care to Patrick.
The defendants sought the special education records for Patrick’s brother Austin to support their theory that Patrick’s impairments were genetic. After the court ordered production of Austin’s redacted special education records, the Catrones filed this special action. The Court accepted special action jurisdiction, noting the issues of first impression and that an appeal would offer no adequate remedy to the prior disclosure of privileged information.
The Court of Appeals affirmed the trial court’s order. Observing that the medical records privilege statute, A.R.S. § 12-2292, protects from disclosure communications “related to physical or mental health” maintained for “purposes of patient diagnosis or treatment,” the court held that special education records, with few exceptions, are not privileged medical records. Though related to the student’s physical or mental health, special education records are maintained for the purposes of developing an education plan, not for diagnosis or treatment.
The Court rejected the Catrones second argument that the records are protected from disclosure by a special education “privileges” created by state and federal statute. After reviewing the relevant state and federal statutes – A.R.S. § 15-541, the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, and the Disabilities Education Act, 20 U.S.C. §§ 1401-1482 – the Court joining other jurisdictions in concluding that although these statutes may create certain confidentiality rights, they do not create an independent privilege for educational records,.
But because these statutes do create an expectation of privacy in the records, the Court also held that confidentiality is a factor to be considered in their discoverability. After applying the traditional relevance standard for discoverability, a court must then determine whether the statutory interest in confidentiality “substantially outweighs” the interest in production, considering a number of specified factors. Applying this test, the Court upheld the production order.
Opinion authored by Judge Barker, with Presiding Judge Norris and Judge Thompson concurring.
Andrew and Stephanie Catrone’s son Patrick experienced health difficulties almost immediately after birth. As a result, Patrick suffered severe and permanent injuries, including impaired cognitive functions, neurobehavorial problems and sensory motor deficits. The Catrones alleged these injuries were caused by negligent medical care and treatment, and sued the hospital and medical professionals who provided care to Patrick.
The defendants sought the special education records for Patrick’s brother Austin to support their theory that Patrick’s impairments were genetic. After the court ordered production of Austin’s redacted special education records, the Catrones filed this special action. The Court accepted special action jurisdiction, noting the issues of first impression and that an appeal would offer no adequate remedy to the prior disclosure of privileged information.
The Court of Appeals affirmed the trial court’s order. Observing that the medical records privilege statute, A.R.S. § 12-2292, protects from disclosure communications “related to physical or mental health” maintained for “purposes of patient diagnosis or treatment,” the court held that special education records, with few exceptions, are not privileged medical records. Though related to the student’s physical or mental health, special education records are maintained for the purposes of developing an education plan, not for diagnosis or treatment.
The Court rejected the Catrones second argument that the records are protected from disclosure by a special education “privileges” created by state and federal statute. After reviewing the relevant state and federal statutes – A.R.S. § 15-541, the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, and the Disabilities Education Act, 20 U.S.C. §§ 1401-1482 – the Court joining other jurisdictions in concluding that although these statutes may create certain confidentiality rights, they do not create an independent privilege for educational records,.
But because these statutes do create an expectation of privacy in the records, the Court also held that confidentiality is a factor to be considered in their discoverability. After applying the traditional relevance standard for discoverability, a court must then determine whether the statutory interest in confidentiality “substantially outweighs” the interest in production, considering a number of specified factors. Applying this test, the Court upheld the production order.
Opinion authored by Judge Barker, with Presiding Judge Norris and Judge Thompson concurring.
Posted by azapp @ Thu, Jun 28, 2007
Harris v. Cochise Health Systems (06/19/2007): A Party Who Has Voluntarily Dismissed Its Amended Complaint with Prejudice Is Not an Aggrieved Party as to its Voluntarily Dismissed Claims For Purposes of Appeal
The trial court twice dismissed Angel Team Home Care’s complaint against Cochise Health Systems and Denise Pederson because Angel Team had not exhausted its administrative remedies and because Angel Team had not provided Pederson sufficient notice of the claims against her. Eventually, Angel Team voluntarily dismissed its second amended complaint with prejudice and appealed the court’s pre-trial rulings.
Division Two affirmed and held that a party can contest only those portions of the trial court’s orders that were decided against them and not any claims that were voluntarily dismissed. The court reasoned that a party has two choices when it believes the trial court has unduly limited its claims: (1) continue to litigate the remaining claims and ultimately appeal all of the rulings; or (2) abandon the surviving claims and immediately appeal the trial court’s adverse rulings.
The Court then considered the appeal as to Angel Team’s involuntarily dismissed contract claims and claims against Pederson. Angel Team argued that it did not need to exhaust administrative remedies because the grievance procedure set forth in statute, regulation, and contract was permissive and not mandatory. The Court held that Angel Team waived this argument when it did not raise it below. The Court declined to exercise its discretion to address the argument despite the waiver because “appellees should not be exposed to the risk that they will revive arguments waived by appellants at the trial court level merely because they have answered those arguments on the merits.”
Lastly, the Court affirmed the dismissal of Angel Team’s complaint against Pederson because Angel Team did not provide her with individualized notice under A.R.S. § 12-821.01 when it served her as the statutory agent of Cochise Health Systems.
Judge Eckerstrom wrote for a unanimous panel that included Judges Cornelio and Miller.
The trial court twice dismissed Angel Team Home Care’s complaint against Cochise Health Systems and Denise Pederson because Angel Team had not exhausted its administrative remedies and because Angel Team had not provided Pederson sufficient notice of the claims against her. Eventually, Angel Team voluntarily dismissed its second amended complaint with prejudice and appealed the court’s pre-trial rulings.
Division Two affirmed and held that a party can contest only those portions of the trial court’s orders that were decided against them and not any claims that were voluntarily dismissed. The court reasoned that a party has two choices when it believes the trial court has unduly limited its claims: (1) continue to litigate the remaining claims and ultimately appeal all of the rulings; or (2) abandon the surviving claims and immediately appeal the trial court’s adverse rulings.
The Court then considered the appeal as to Angel Team’s involuntarily dismissed contract claims and claims against Pederson. Angel Team argued that it did not need to exhaust administrative remedies because the grievance procedure set forth in statute, regulation, and contract was permissive and not mandatory. The Court held that Angel Team waived this argument when it did not raise it below. The Court declined to exercise its discretion to address the argument despite the waiver because “appellees should not be exposed to the risk that they will revive arguments waived by appellants at the trial court level merely because they have answered those arguments on the merits.”
Lastly, the Court affirmed the dismissal of Angel Team’s complaint against Pederson because Angel Team did not provide her with individualized notice under A.R.S. § 12-821.01 when it served her as the statutory agent of Cochise Health Systems.
Judge Eckerstrom wrote for a unanimous panel that included Judges Cornelio and Miller.
Posted by azapp @ Thu, Jun 28, 2007
Wednesday, June 27, 2007
Karbal v. Arizona Department of Revenue (5/24/07): Division One Holds That an Individual Customer Lacks Standing to Challenge Arizona’s “Tourism Tax” on Car and Hotel Room Rentals.
Arizona’s tourism tax statutes, A.R.S. §§ 5-839 and 5-840, impose a transaction privilege tax on car and hotel room rentals. Karbal, a Michigan resident, rented a car and a hotel room while visiting Arizona, paid the Tourism Tax, and then brought suit in the Arizona tax court seeking a refund. The tax court dismissed the suit for failure to file an administrative refund claim, and Karbal timely appealed. On appeal, the Arizona Department of Revenue argued that Karbal lacked standing to challenge the taxes because the Tourism Tax falls on vendors, not their customers. The Court of Appeals agreed, finding that the Tourism Tax is an excise tax, rather than a sales tax, meaning that the tax burden falls directly on the business activity of the vendor and not on the customer. Karbal thus lacked standing to bring the suit because he was not the actual taxpayer. Although, vendors may choose to pass along the costs associated with the Tourism Tax to their customers, nothing in the statutes requires them to do so. More importantly, any refund obtained by Mr. Karbal would belong to the vendors who paid the tax, and nothing in Arizona law would require the vendors to pass along the refund to Mr. Karbal. Thus, a favorable decision would not redress Karbal’s alleged injury.
Judge Portley authored the opinion; Judges Kessler and Irvine concurred.
Arizona’s tourism tax statutes, A.R.S. §§ 5-839 and 5-840, impose a transaction privilege tax on car and hotel room rentals. Karbal, a Michigan resident, rented a car and a hotel room while visiting Arizona, paid the Tourism Tax, and then brought suit in the Arizona tax court seeking a refund. The tax court dismissed the suit for failure to file an administrative refund claim, and Karbal timely appealed. On appeal, the Arizona Department of Revenue argued that Karbal lacked standing to challenge the taxes because the Tourism Tax falls on vendors, not their customers. The Court of Appeals agreed, finding that the Tourism Tax is an excise tax, rather than a sales tax, meaning that the tax burden falls directly on the business activity of the vendor and not on the customer. Karbal thus lacked standing to bring the suit because he was not the actual taxpayer. Although, vendors may choose to pass along the costs associated with the Tourism Tax to their customers, nothing in the statutes requires them to do so. More importantly, any refund obtained by Mr. Karbal would belong to the vendors who paid the tax, and nothing in Arizona law would require the vendors to pass along the refund to Mr. Karbal. Thus, a favorable decision would not redress Karbal’s alleged injury.
Judge Portley authored the opinion; Judges Kessler and Irvine concurred.
Posted by azapp @ Wed, Jun 27, 2007
Cullum v. Cullum (06/19/2007): Division One Holds That Superior Court Can Utilize Maricopa County Superior Court’s Spousal Maintenance Guidelines, Provided That The Court’s Maintenance Award Is Consistent With The Factors Set Forth in A.R.S. § 25-319(B)
Michael (“Husband”) and Tamera (“Wife”) Cullum were married for 17 years. In dissolution proceedings, the court determined that Wife qualified for spousal maintenance pursuant to A.R.S. § 25-319(A)(1) and/or (2). After considering the relevant factors in A.R.S. § 25-319(B), the court awarded Wife $500 per month for seventy-two months. In arriving at the duration and amount of maintenance, the court utilized the Maricopa County Superior Court Spousal Maintenance Guidelines (“Guidelines”).
Husband appealed, arguing that the court erred by relying on the Guidelines rather than the factors set forth in A.R.S. § 25-319. The Court of Appeals disagreed, and held that the court did not abuse its discretion in determining the maintenance award because it “can apply the Guidelines, provided that the factors the court relies on are consistent with A.R.S. § 25-319.” The Court of Appeals found sufficient evidence in the record to determine that the trial court had indeed considered the statutory factors in its maintenance award. Thus, utilizing the Guidelines to obtain a range of duration and amount was not in error.
Judge Kessler authored the opinion; Judges Portley and Irvine concurred.
Michael (“Husband”) and Tamera (“Wife”) Cullum were married for 17 years. In dissolution proceedings, the court determined that Wife qualified for spousal maintenance pursuant to A.R.S. § 25-319(A)(1) and/or (2). After considering the relevant factors in A.R.S. § 25-319(B), the court awarded Wife $500 per month for seventy-two months. In arriving at the duration and amount of maintenance, the court utilized the Maricopa County Superior Court Spousal Maintenance Guidelines (“Guidelines”).
Husband appealed, arguing that the court erred by relying on the Guidelines rather than the factors set forth in A.R.S. § 25-319. The Court of Appeals disagreed, and held that the court did not abuse its discretion in determining the maintenance award because it “can apply the Guidelines, provided that the factors the court relies on are consistent with A.R.S. § 25-319.” The Court of Appeals found sufficient evidence in the record to determine that the trial court had indeed considered the statutory factors in its maintenance award. Thus, utilizing the Guidelines to obtain a range of duration and amount was not in error.
Judge Kessler authored the opinion; Judges Portley and Irvine concurred.
Posted by azapp @ Wed, Jun 27, 2007
Crowell v. Jejna (06/21/2007): Division One Denies Jury Trial for Violation of Municipal Ordinance Regulating Nude Dancing
In this case, Division One reviewed the Superior Court's decision to grant special action jurisdiction but deny relief to Erin Crowell, an "adult service provider" (i.e. an exotic dancer). Crowell was charged with violating various ordinances regulating how and where a dancer may dance nude in an "adult service business." The three charges were all misdemeanors punishable by no more than 6 months imprisonment. Crowell demanded a jury trial in Scottsdale City Court and that court denied her request. Crowell then filed a special action with the Superior Court.
As a procedural matter, Judge Johnsen, for a unanimous panel including Judges Orozco and Snow, first noted that where the Superior Court accepts special action jurisdiction and determines the merits of the petition, the Court of Appeals reviews whether the Superior Court abused its discretion in granting or denying the relief sought.
On the merits, Division One broadly canvassed Arizona law and secondary authorities on the jury trial right and applied the two-step analysis set forth by the Arizona Supreme Court in Derendal v. Griffith, 209 Ariz. 416 (2005). That analysis holds that a jury trial right exists when either: 1) the crime charged has a common-law antecedent that guaranteed a right to a jury trial at the time of statehood; or 2) Art. 2 Sec. 24 of the Arizona Constitution, Arizona's analog to the Sixth Amendment, affords such a right. See Op. at Para. 7, 8. The Court concluded that in this case neither the common law nor the Constitution afforded Crowell a right to a jury trial. Division One thus affirmed.
In this case, Division One reviewed the Superior Court's decision to grant special action jurisdiction but deny relief to Erin Crowell, an "adult service provider" (i.e. an exotic dancer). Crowell was charged with violating various ordinances regulating how and where a dancer may dance nude in an "adult service business." The three charges were all misdemeanors punishable by no more than 6 months imprisonment. Crowell demanded a jury trial in Scottsdale City Court and that court denied her request. Crowell then filed a special action with the Superior Court.
As a procedural matter, Judge Johnsen, for a unanimous panel including Judges Orozco and Snow, first noted that where the Superior Court accepts special action jurisdiction and determines the merits of the petition, the Court of Appeals reviews whether the Superior Court abused its discretion in granting or denying the relief sought.
On the merits, Division One broadly canvassed Arizona law and secondary authorities on the jury trial right and applied the two-step analysis set forth by the Arizona Supreme Court in Derendal v. Griffith, 209 Ariz. 416 (2005). That analysis holds that a jury trial right exists when either: 1) the crime charged has a common-law antecedent that guaranteed a right to a jury trial at the time of statehood; or 2) Art. 2 Sec. 24 of the Arizona Constitution, Arizona's analog to the Sixth Amendment, affords such a right. See Op. at Para. 7, 8. The Court concluded that in this case neither the common law nor the Constitution afforded Crowell a right to a jury trial. Division One thus affirmed.
Posted by azapp @ Wed, Jun 27, 2007
Friday, June 22, 2007
Fushek v. State (6/14/07): Division One Holds that Potential for Mandatory Registration as a Sex Offender Does Not Entitle Defendant to Trial by Jury for Misdemeanors Allegedly Committed With Sexual Motive
Defendant was charged with misdemeanor assault, indecent exposure and contributing to the delinquency of a minor. The charges arose out of Defendant’s service as a Catholic pastor and leader of a church youth organization. Pursuant to A.R.S. § 13-118, the State alleged a sexual motivation with respect to each of the charges. Because of the sexual motive allegations, Defendant may be required to register as a convicted sex offender pursuant to A.R.S. § 13-3821(C) if found guilty. The Justice Court ruled that the indecent exposure count would be tried to a jury, but that the other charges were not jury eligible and would be tried to the judge. Defendant filed a special action in Superior Court requesting a jury trial on all counts in light of the potential consequence of a mandatory sex offender registration. The Superior Court accepted jurisdiction and ruled that Defendant was entitled to a trial by jury on all charges. The State appealed, arguing that Defendant was entitled to a jury trial for the indecent exposure charge only.
The Court of Appeals reversed the Superior Court and held that Defendant was not entitled to a jury trial for the misdemeanor charges of assault and contributing to the delinquency of a minor. The right to trial by jury, as guaranteed by the Arizona Constitution, preserves the right as it existed at the time Arizona adopted its Constitution. Under the first prong of the test established by Derendal v. Griffith, 209 Ariz. 416 (2005), to determine whether Defendant is entitled to a trial by jury, the charges of assault and contributing to the delinquency of a minor do not have jury-eligible common law antecedents. Under the second prong of that test, the charges are not sufficiently serious to give a right to trial by jury because 1) they each carry a maximum jail term of less than six months, and 2) the potential consequence of being forced to register as a sex offender is not “uniformly applied” as contemplated by Derendal because the judge retains discretion whether to order a convicted defendant to register under A.R.S. § 13-3821(C) upon conviction.
Presiding Judge Winthrop wrote the opinion for the panel and was joined by concurring Judges Ehrlich and Weisberg.
Defendant was charged with misdemeanor assault, indecent exposure and contributing to the delinquency of a minor. The charges arose out of Defendant’s service as a Catholic pastor and leader of a church youth organization. Pursuant to A.R.S. § 13-118, the State alleged a sexual motivation with respect to each of the charges. Because of the sexual motive allegations, Defendant may be required to register as a convicted sex offender pursuant to A.R.S. § 13-3821(C) if found guilty. The Justice Court ruled that the indecent exposure count would be tried to a jury, but that the other charges were not jury eligible and would be tried to the judge. Defendant filed a special action in Superior Court requesting a jury trial on all counts in light of the potential consequence of a mandatory sex offender registration. The Superior Court accepted jurisdiction and ruled that Defendant was entitled to a trial by jury on all charges. The State appealed, arguing that Defendant was entitled to a jury trial for the indecent exposure charge only.
The Court of Appeals reversed the Superior Court and held that Defendant was not entitled to a jury trial for the misdemeanor charges of assault and contributing to the delinquency of a minor. The right to trial by jury, as guaranteed by the Arizona Constitution, preserves the right as it existed at the time Arizona adopted its Constitution. Under the first prong of the test established by Derendal v. Griffith, 209 Ariz. 416 (2005), to determine whether Defendant is entitled to a trial by jury, the charges of assault and contributing to the delinquency of a minor do not have jury-eligible common law antecedents. Under the second prong of that test, the charges are not sufficiently serious to give a right to trial by jury because 1) they each carry a maximum jail term of less than six months, and 2) the potential consequence of being forced to register as a sex offender is not “uniformly applied” as contemplated by Derendal because the judge retains discretion whether to order a convicted defendant to register under A.R.S. § 13-3821(C) upon conviction.
Presiding Judge Winthrop wrote the opinion for the panel and was joined by concurring Judges Ehrlich and Weisberg.
Posted by azapp @ Fri, Jun 22, 2007
Sunland Beef Co. v. Indus. Comm'n. of Ariz.(05/29/07): Division One Reaffirms "Positional-Risk" Doctrine for Unexplained Employee Falls
In this Industrial Commission special action, Sunland Beef sought review of the ALJ's award finding a compensable claim for Donald Delaware, a Sunland employee who fell while at work. The ALJ found that Delaware's injuries were the result of an unexplained fall and that therefore the injuries were compensable (i.e. arising out of the employment) under the "positional risk" doctrine. That doctrine provides that an injury arises out of employment if it occurs "in the court of" the employment. Division One, in a unanimous opinion by Judge Gemmill, affirmed.
Division One first noted that the "arising out of" requirement refers to the origin of the injury. See Circle K Store #1131 v. Indus. Comm'n. of Ariz., 165 Ariz. 91, 93-94 (1990). The Court then reaffirmed that Arizona follows the "positional-risk" doctrine in unexplained fall cases. See id. at 95-96. Under that doctrine, if the claimant can show that the injury happened in the course of employment, a presumption arises that the injury is compensable. Op. at Para. 20 citing Circle K, 165 Ariz. at 96. The doctrine is based on the logic that the "claimant would not have been at the place of injury but for the duties of her employment." Id.
Turning to the facts of this case, the court noted that the ALJ concluded this was an unexplained fall and that the record supported that conclusion. Thus, applying the positional-risk doctrine, the Court held that because the fall was unexplained and because it took place in the course of Delaware's employment, the injury was compensable.
Judges Portley and Irvine concurred.
In this Industrial Commission special action, Sunland Beef sought review of the ALJ's award finding a compensable claim for Donald Delaware, a Sunland employee who fell while at work. The ALJ found that Delaware's injuries were the result of an unexplained fall and that therefore the injuries were compensable (i.e. arising out of the employment) under the "positional risk" doctrine. That doctrine provides that an injury arises out of employment if it occurs "in the court of" the employment. Division One, in a unanimous opinion by Judge Gemmill, affirmed.
Division One first noted that the "arising out of" requirement refers to the origin of the injury. See Circle K Store #1131 v. Indus. Comm'n. of Ariz., 165 Ariz. 91, 93-94 (1990). The Court then reaffirmed that Arizona follows the "positional-risk" doctrine in unexplained fall cases. See id. at 95-96. Under that doctrine, if the claimant can show that the injury happened in the course of employment, a presumption arises that the injury is compensable. Op. at Para. 20 citing Circle K, 165 Ariz. at 96. The doctrine is based on the logic that the "claimant would not have been at the place of injury but for the duties of her employment." Id.
Turning to the facts of this case, the court noted that the ALJ concluded this was an unexplained fall and that the record supported that conclusion. Thus, applying the positional-risk doctrine, the Court held that because the fall was unexplained and because it took place in the course of Delaware's employment, the injury was compensable.
Judges Portley and Irvine concurred.
Posted by azapp @ Fri, Jun 22, 2007
Thursday, June 21, 2007
In re Pabst Rodriguez (6/14/07): Division One Holds That Arizona’s “Revocation By Divorce” Statute, A.R.S. § 14-2804, Does Not Apply To An Irrevocable Trust Created For A Spouse, Notwithstanding The Fact That The Marriage Was Void Due To The Spouse’s Concurrent Marriage To Another Woman.
The siblings of the decedent, Kathryn Pabst Rodriguez, sought to preclude her husband, Mauro Rodriguez, from receiving an irrevocable trust created by her will. At the time of the Pabst-Rodriguez marriage, Rodriguez was married to another woman. By the time of appeal, the parties did not dispute that this fact voided the marriage. The probate court acknowledged that A.R.S. § 14-2804 applied only to a decedent’s “revocable” dispositions of property, but nevertheless held that Rodriguez was not entitled to the irrevocable trust because it would be contrary to the legislative intent of section 14-2804 not to revoke a disposition made during a “bigamous” marriage.
The Arizona Court of Appeals reversed. It first rejected Rodriguez’s challenges to personal and subject matter jurisdiction. It held that Rodriguez, his deceased spouse, and her estate, had sufficient contacts with Arizona for the probate court to have exercised jurisdiction, even though the couple resided in Mexico at the time of her death. The court then held that the plain language of A.R.S. § 14-2804 controlled. The statute applied only to “revocable” dispositions. The trust created for Rodriguez became irrevocable at the time of his wife’s death. While the court agreed that the “bigamous” marriage was invalid, the court rejected the argument that the probate court’s declaration of invalidity should relate back to a time before the trust became irrevocable. The court found nothing in the language of the statute, legislative intent, or public policy to support that interpretation.
Judge Norris authored the opinion, which Judges Barker and Thompson joined
The siblings of the decedent, Kathryn Pabst Rodriguez, sought to preclude her husband, Mauro Rodriguez, from receiving an irrevocable trust created by her will. At the time of the Pabst-Rodriguez marriage, Rodriguez was married to another woman. By the time of appeal, the parties did not dispute that this fact voided the marriage. The probate court acknowledged that A.R.S. § 14-2804 applied only to a decedent’s “revocable” dispositions of property, but nevertheless held that Rodriguez was not entitled to the irrevocable trust because it would be contrary to the legislative intent of section 14-2804 not to revoke a disposition made during a “bigamous” marriage.
The Arizona Court of Appeals reversed. It first rejected Rodriguez’s challenges to personal and subject matter jurisdiction. It held that Rodriguez, his deceased spouse, and her estate, had sufficient contacts with Arizona for the probate court to have exercised jurisdiction, even though the couple resided in Mexico at the time of her death. The court then held that the plain language of A.R.S. § 14-2804 controlled. The statute applied only to “revocable” dispositions. The trust created for Rodriguez became irrevocable at the time of his wife’s death. While the court agreed that the “bigamous” marriage was invalid, the court rejected the argument that the probate court’s declaration of invalidity should relate back to a time before the trust became irrevocable. The court found nothing in the language of the statute, legislative intent, or public policy to support that interpretation.
Judge Norris authored the opinion, which Judges Barker and Thompson joined
Posted by azapp @ Thu, Jun 21, 2007
Smyser v. City of Peoria (6/12/07): Division One Affirms That City Providing Emergency Medical Services Is Performing a Governmental Function and Therefore Entitled to Qualified Immunity, But Vacates Award of Rule 68 Sanctions
Smyser, individually and on behalf of her children and the parents of her late husband, filed an action for medical malpractice and wrongful death against the City of Peoria, alleging that the City’s paramedics and EMTs who responded to the husband’s 911 call failed to properly treat his severe asthma attack. Smyser moved for summary judgment on the grounds that
ARS § 9-500.02, which granted immunity to municipalities in providing emergency medical services, was unconstitutional. The trial court found the statute constitutional and, after jury trial on the issue of gross negligence, Smyser appealed.
The court of appeals affirmed the trial court’s ruling that Section 9-500.02(A) is constitutional. The court concluded that in granting immunity to municipalities and towns, Section 9-500.02 does not exceed the legislature’s powers to adopt statutes governing the immunity of the state and its political subdivisions if the public entities and employees, in providing emergency medical services, are acting in a governmental capacity. The court further concluded that the provision of emergency medical services is a governmental -- rather than proprietary -- activity. In addressing a jury instruction challenge brought by Smyser, the court of appeals held that when no evidence shows intentional or bad faith destruction of evidence, a spoliation instruction was not mandatory and that failure to give the instruction was not reversible error. The court of appeals vacated the trial court’s award of sanctions against Smyser pursuant to Arizona Rule of Civil Procedure 68, finding that the City’s unapportioned lump-sum offer of judgment did not comply with Rule 68 because it did not allocate damages among the beneficiaries.
Judge Thompson authored the opinion, joined by Judges Portley and Barker
Smyser, individually and on behalf of her children and the parents of her late husband, filed an action for medical malpractice and wrongful death against the City of Peoria, alleging that the City’s paramedics and EMTs who responded to the husband’s 911 call failed to properly treat his severe asthma attack. Smyser moved for summary judgment on the grounds that
ARS § 9-500.02, which granted immunity to municipalities in providing emergency medical services, was unconstitutional. The trial court found the statute constitutional and, after jury trial on the issue of gross negligence, Smyser appealed.
The court of appeals affirmed the trial court’s ruling that Section 9-500.02(A) is constitutional. The court concluded that in granting immunity to municipalities and towns, Section 9-500.02 does not exceed the legislature’s powers to adopt statutes governing the immunity of the state and its political subdivisions if the public entities and employees, in providing emergency medical services, are acting in a governmental capacity. The court further concluded that the provision of emergency medical services is a governmental -- rather than proprietary -- activity. In addressing a jury instruction challenge brought by Smyser, the court of appeals held that when no evidence shows intentional or bad faith destruction of evidence, a spoliation instruction was not mandatory and that failure to give the instruction was not reversible error. The court of appeals vacated the trial court’s award of sanctions against Smyser pursuant to Arizona Rule of Civil Procedure 68, finding that the City’s unapportioned lump-sum offer of judgment did not comply with Rule 68 because it did not allocate damages among the beneficiaries.
Judge Thompson authored the opinion, joined by Judges Portley and Barker
Posted by azapp @ Thu, Jun 21, 2007
Friday, June 15, 2007
ADOR v. Action Marine, Inc.(06/05/2007): Division One Holds That A.R.S. § 42-5028 Does Not Extend Personal Liability For Unpaid Corporate Transaction Privilege Taxes to Those Corporate Officers Or Directors Whose Corporate Duties Include Remitting Such Taxes to ADOR
The Randalls were the officers and directors of Action Marine, Inc., an Arizona corporation that was eventually liquidated after a Chapter 7 bankruptcy. During the bankruptcy proceedings, ADOR requested that Action Marine file returns for the amount it owed in transaction privilege taxes. After the bankruptcy proceeding, ADOR filed a collection action against both Action Marine and the Randalls individually for their corporation’s unpaid transaction privilege taxes. The Randalls argued they could not be held personally liable for these taxes under A.R.S. § 42-5028 (liability imposed on “persons” who fail to remit additional charges collected to cover their anticipated transaction privilege tax liability).
The tax court granted summary judgment in favor of ADOR, holding that the Randalls “as sole owners, officers and directors of the defunct corporate defendant, are responsible for payment of the subject [tax].” The Randalls unsuccessfully moved for a new trial.
The Court of Appeals, on de novo review, reversed and remanded for further proceedings, framing the issue as whether the term “person,” as defined in A.R.S. § 42-5001(8) and as used in A.R.S. § 42-5028, includes a corporation’s officers or directors. The Court held that “there is no basis to hold that the term ‘person’ . . . encompasses a corporate officer or director, because such office holders were not listed in A.R.S. § 42-5001(8), and because there is no Arizona statute that places an affirmative obligation on such individuals to pay a corporation’s transaction privilege taxes.”
Chief Judge Weisberg authored the opinion, with Judge Hall, Presiding Judge, and Judge Johnsen concurring.
The Randalls were the officers and directors of Action Marine, Inc., an Arizona corporation that was eventually liquidated after a Chapter 7 bankruptcy. During the bankruptcy proceedings, ADOR requested that Action Marine file returns for the amount it owed in transaction privilege taxes. After the bankruptcy proceeding, ADOR filed a collection action against both Action Marine and the Randalls individually for their corporation’s unpaid transaction privilege taxes. The Randalls argued they could not be held personally liable for these taxes under A.R.S. § 42-5028 (liability imposed on “persons” who fail to remit additional charges collected to cover their anticipated transaction privilege tax liability).
The tax court granted summary judgment in favor of ADOR, holding that the Randalls “as sole owners, officers and directors of the defunct corporate defendant, are responsible for payment of the subject [tax].” The Randalls unsuccessfully moved for a new trial.
The Court of Appeals, on de novo review, reversed and remanded for further proceedings, framing the issue as whether the term “person,” as defined in A.R.S. § 42-5001(8) and as used in A.R.S. § 42-5028, includes a corporation’s officers or directors. The Court held that “there is no basis to hold that the term ‘person’ . . . encompasses a corporate officer or director, because such office holders were not listed in A.R.S. § 42-5001(8), and because there is no Arizona statute that places an affirmative obligation on such individuals to pay a corporation’s transaction privilege taxes.”
Chief Judge Weisberg authored the opinion, with Judge Hall, Presiding Judge, and Judge Johnsen concurring.
Posted by azapp @ Fri, Jun 15, 2007
Phoenix Newspapers v. Jane Doe (6/12/07): Division One Holds That a Notice of Claim Is a Public Record.
Phoenix Newspapers, Inc. (“PNI”) filed a special action challenging the trial court’s order that a Notice of Claim filed with a school district is not a public record subject to disclosure under Arizona’s public records law, Arizona Revised Statutes (“A.R.S.”) sections 39-121 to 39-121.03 (2001 and Supp. 2006). The Notice of Claim (“Notice”) was filed on behalf of a minor, Jane Doe (“Doe”), who was the victim of a sexual assault at one of the district’s high schools. The Court of Appeals accepted special action jurisdiction, and “easily” concluded that the Notice of Claim is a public record.
The Court of Appeals further explained that there is a general presumption in favor of disclosure of public records, and that the burden of showing a probability that specific, material harm will result from disclosure (thus justifying an exception to the usual rule of full disclosure), is on the party that seeks non-disclosure rather than on the party that seeks access. In a given case, a party could meet this burden with respect to certain parts of a Notice of Claim and not others. Accordingly, the Court of Appeals remanded to the probate court to conduct an in camera review of the Notice and determine what parts of the Notice, if any, should be redacted because Doe’s specific interests in privacy outweigh the public’s interests in access to public records.
The decision was authored by Judge Irvine; Judges Thompson and Snow concurred.
Phoenix Newspapers, Inc. (“PNI”) filed a special action challenging the trial court’s order that a Notice of Claim filed with a school district is not a public record subject to disclosure under Arizona’s public records law, Arizona Revised Statutes (“A.R.S.”) sections 39-121 to 39-121.03 (2001 and Supp. 2006). The Notice of Claim (“Notice”) was filed on behalf of a minor, Jane Doe (“Doe”), who was the victim of a sexual assault at one of the district’s high schools. The Court of Appeals accepted special action jurisdiction, and “easily” concluded that the Notice of Claim is a public record.
The Court of Appeals further explained that there is a general presumption in favor of disclosure of public records, and that the burden of showing a probability that specific, material harm will result from disclosure (thus justifying an exception to the usual rule of full disclosure), is on the party that seeks non-disclosure rather than on the party that seeks access. In a given case, a party could meet this burden with respect to certain parts of a Notice of Claim and not others. Accordingly, the Court of Appeals remanded to the probate court to conduct an in camera review of the Notice and determine what parts of the Notice, if any, should be redacted because Doe’s specific interests in privacy outweigh the public’s interests in access to public records.
The decision was authored by Judge Irvine; Judges Thompson and Snow concurred.
Posted by azapp @ Fri, Jun 15, 2007
Kohl v. City of Phoenix (6/11/2007): Supreme Court Holds That City Cannot Be Liable for Its Administrative Decision to not Install A Traffic Light At An Intersection.
Klay Kohl was struck and killed by an automobile while crossing a Phoenix intersection. His parents, the petitioners, sued the city claiming that the absence of a traffic light at the intersection caused their child’s death. In the years before the fatal accident the city repeatedly analyzed the intersection as a candidate for a signal using a computer model called SIGWAR that ranks intersections based on six federal criteria for signalization.
The superior court granted summary judgment to the city holding that its decision to use the SIGWAR program was immune from suit under A.R.S. § 12-820.01(A)(2). The Court of Appeals reversed the judgment holding that the City could be liable if its decision to not place a traffic signal at the intersection was a result of faulty data collection or input into the SIGWAR program. On remand, the superior court granted summary judgment to the city holding that any failure to signalize the intersection resulted from the adoption of the SIGWAR program not from any “operational failure.” The Court of Appeals again reversed and remanded. The Supreme Court granted review and vacated the lower court’s decision.
Justice Hurwitz wrote the majority decision in which Justices Berch and Bales joined. The majority first held that the city’s decision to use SIGWAR was “fundamental policymaking” and thus could not form the basis of liability under A.R.S. § 12-820.01(A)(2). The City’s failure to place a signal at the intersection was the product of the city’s immune decision to adopt SIGWAR because: (1) the SIGWAR program never ranked the particular intersection highly enough for it to receive more detailed evaluation from the city’s traffic engineers; and (2) because there was no claim that the city made any operational decision which resulted in the intersection being omitted from list of intersections which received further consideration. See Myers v. City of Tempe, 212 Ariz. 128, 131, 128 P.3d 751, 754 (2006) (holding that decision “follow[ing] automatically” from immune policy decision was also immune).
Chief Justice McGregor wrote a concurring opinion joined by Justice Ryan that supported a broader view of absolute immunity under A.R.S. § 12-820.01(A)(2). Under this analysis, the city’s decision where to install traffic signals is a discretionary governmental decision constituting the determination of fundamental governmental policy and is therefore always immune from suit.
Klay Kohl was struck and killed by an automobile while crossing a Phoenix intersection. His parents, the petitioners, sued the city claiming that the absence of a traffic light at the intersection caused their child’s death. In the years before the fatal accident the city repeatedly analyzed the intersection as a candidate for a signal using a computer model called SIGWAR that ranks intersections based on six federal criteria for signalization.
The superior court granted summary judgment to the city holding that its decision to use the SIGWAR program was immune from suit under A.R.S. § 12-820.01(A)(2). The Court of Appeals reversed the judgment holding that the City could be liable if its decision to not place a traffic signal at the intersection was a result of faulty data collection or input into the SIGWAR program. On remand, the superior court granted summary judgment to the city holding that any failure to signalize the intersection resulted from the adoption of the SIGWAR program not from any “operational failure.” The Court of Appeals again reversed and remanded. The Supreme Court granted review and vacated the lower court’s decision.
Justice Hurwitz wrote the majority decision in which Justices Berch and Bales joined. The majority first held that the city’s decision to use SIGWAR was “fundamental policymaking” and thus could not form the basis of liability under A.R.S. § 12-820.01(A)(2). The City’s failure to place a signal at the intersection was the product of the city’s immune decision to adopt SIGWAR because: (1) the SIGWAR program never ranked the particular intersection highly enough for it to receive more detailed evaluation from the city’s traffic engineers; and (2) because there was no claim that the city made any operational decision which resulted in the intersection being omitted from list of intersections which received further consideration. See Myers v. City of Tempe, 212 Ariz. 128, 131, 128 P.3d 751, 754 (2006) (holding that decision “follow[ing] automatically” from immune policy decision was also immune).
Chief Justice McGregor wrote a concurring opinion joined by Justice Ryan that supported a broader view of absolute immunity under A.R.S. § 12-820.01(A)(2). Under this analysis, the city’s decision where to install traffic signals is a discretionary governmental decision constituting the determination of fundamental governmental policy and is therefore always immune from suit.
Posted by azapp @ Fri, Jun 15, 2007
Friday, June 8, 2007
Roberts v. Robert (5/31/07): Division One Holds That a Decedent’s Heir Has a Right to Redeem a Tax Lien On Decedent’s Real Property, and a Tax Lien Purchaser Must Properly Join and Serve the Heir As a Defendant In a Foreclosure Action In Order to Foreclose the Heir’s Right to Redeem.
Appellees, purchasers of two Arizona real property tax lien certificates, filed suit to foreclose the redemption rights for those tax liens pursuant to A.R.S. § 42-18201. Appellees named as defendants the owner of the property, the Mojave County Treasurer, various fictitious parties, and the “unknown heirs of any of” them “if they be deceased.” While attempting to serve the owner of the property, Appellees learned that the owner was deceased, but a son of the owner, purporting to be in charge of the owner’s estate, accepted service and negotiated to allow default judgment in favor of Appellees. Service on the remaining fictitious and unknown parties was made by publication pursuant to Arizona Rule of Civil Procedure (“ARCP”) 4.2(f) and (g). A year after default judgment was entered, Appellant, claiming also to be a son and an heir of the owner, filed an application for a new trial pursuant to ARCP 59(j). Appellant alleged that as an heir he had a right to redeem the tax liens, and his right could not have been foreclosed by the default judgment because he had not been properly served either in person or by publication. The trial court denied Appellants motion and granted sanctions under ARCP 11 to Appellees.
The Court of Appeals reversed. First, the court held that under clear Arizona law a decedent’s heir has a right to redeem tax liens. A.R.S. § 42-18151 provides that a tax lien may be redeemed by, among others, “the owner” or “any person who has a legal or equitable claim in the property.” Because an heir succeeds to the ownership interest of a decedent by operation of law in Arizona, an heir qualifies to redeem under this statute. As a result, an heir must be joined in an action to foreclose all rights to redeem a tax lien. Appellees argued that they joined Appellant by naming all “unknown heirs” and that Appellant was properly served by publication. The Court of Appeals disagreed. While recognizing that the analysis in these cases is largely driven by the factual circumstances, the court held that a tax lien holder seeking to foreclose redemption rights must at a minimum conduct a diligent search and inquiry to locate heirs. Such an inquiry might include a public record search, and questioning of relatives and friends of the owner. In the present matter, Appellees spoke directly with an individual claiming to be an heir, but failed to ask him whether other heirs might exist, nor did the record contain any evidence of any steps taken by Appellees to locate possible heirs. As a result, Appellees had not met the burden for justifying service by publication.
Presiding Judge Norris authored the unanimous opinion, joined by Judge Barker and Judge Thompson.
Appellees, purchasers of two Arizona real property tax lien certificates, filed suit to foreclose the redemption rights for those tax liens pursuant to A.R.S. § 42-18201. Appellees named as defendants the owner of the property, the Mojave County Treasurer, various fictitious parties, and the “unknown heirs of any of” them “if they be deceased.” While attempting to serve the owner of the property, Appellees learned that the owner was deceased, but a son of the owner, purporting to be in charge of the owner’s estate, accepted service and negotiated to allow default judgment in favor of Appellees. Service on the remaining fictitious and unknown parties was made by publication pursuant to Arizona Rule of Civil Procedure (“ARCP”) 4.2(f) and (g). A year after default judgment was entered, Appellant, claiming also to be a son and an heir of the owner, filed an application for a new trial pursuant to ARCP 59(j). Appellant alleged that as an heir he had a right to redeem the tax liens, and his right could not have been foreclosed by the default judgment because he had not been properly served either in person or by publication. The trial court denied Appellants motion and granted sanctions under ARCP 11 to Appellees.
The Court of Appeals reversed. First, the court held that under clear Arizona law a decedent’s heir has a right to redeem tax liens. A.R.S. § 42-18151 provides that a tax lien may be redeemed by, among others, “the owner” or “any person who has a legal or equitable claim in the property.” Because an heir succeeds to the ownership interest of a decedent by operation of law in Arizona, an heir qualifies to redeem under this statute. As a result, an heir must be joined in an action to foreclose all rights to redeem a tax lien. Appellees argued that they joined Appellant by naming all “unknown heirs” and that Appellant was properly served by publication. The Court of Appeals disagreed. While recognizing that the analysis in these cases is largely driven by the factual circumstances, the court held that a tax lien holder seeking to foreclose redemption rights must at a minimum conduct a diligent search and inquiry to locate heirs. Such an inquiry might include a public record search, and questioning of relatives and friends of the owner. In the present matter, Appellees spoke directly with an individual claiming to be an heir, but failed to ask him whether other heirs might exist, nor did the record contain any evidence of any steps taken by Appellees to locate possible heirs. As a result, Appellees had not met the burden for justifying service by publication.
Presiding Judge Norris authored the unanimous opinion, joined by Judge Barker and Judge Thompson.
Posted by azapp @ Fri, Jun 8, 2007
Estate of Garner v. Schindler (6/07/07): Division One Holds De Facto Officer Doctrine Applies to Judicial Officers Acting Under Color of Defective Appointment
A commissioner acting as a judge pro tempore in the superior court entered a judgment and order in a contested probate matter. Appellant appealed, contending that the judgment and order were void for lack of jurisdiction because the commissioner’s appointment as a judge pro tempore had not been timely approved by the Maricopa County Board of Supervisors, as required by A.R.S. § 12-141. The Estate, in response, claimed that the challenge to the commissioner’s service was waived because it was not raised before the superior court hearing commenced.
The Court of Appeals affirmed the judgment and order. It held that the challenge of the commissioner’s authority, because not timely raised, had been waived. Resolving a question of first impression in Arizona, the Court extended the “de facto officer” doctrine, see Rogers v. Frohmiller, 59 Ariz. 513 (1942), to judicial officers. The doctrine gives validity to actions taken by an officer under color of election or appointment that would otherwise be void because of an unknown defect or irregularity regarding the power of the officer to act. Because the commissioner otherwise met the constitutional requirements of a judge pro tempore, the failure of the statutorily required approval did not result in a jurisdictional error and, thus, appellant could not raise his challenge for the first time on appeal.
Presiding Judge Hall wrote the opinion and was joined by Judges Timmer and Brown.
A commissioner acting as a judge pro tempore in the superior court entered a judgment and order in a contested probate matter. Appellant appealed, contending that the judgment and order were void for lack of jurisdiction because the commissioner’s appointment as a judge pro tempore had not been timely approved by the Maricopa County Board of Supervisors, as required by A.R.S. § 12-141. The Estate, in response, claimed that the challenge to the commissioner’s service was waived because it was not raised before the superior court hearing commenced.
The Court of Appeals affirmed the judgment and order. It held that the challenge of the commissioner’s authority, because not timely raised, had been waived. Resolving a question of first impression in Arizona, the Court extended the “de facto officer” doctrine, see Rogers v. Frohmiller, 59 Ariz. 513 (1942), to judicial officers. The doctrine gives validity to actions taken by an officer under color of election or appointment that would otherwise be void because of an unknown defect or irregularity regarding the power of the officer to act. Because the commissioner otherwise met the constitutional requirements of a judge pro tempore, the failure of the statutorily required approval did not result in a jurisdictional error and, thus, appellant could not raise his challenge for the first time on appeal.
Presiding Judge Hall wrote the opinion and was joined by Judges Timmer and Brown.
Posted by azapp @ Fri, Jun 8, 2007
Burkhamer v. State of Arizona (05/31/07): Split Panel of Division Two Rules Appeal Untimely Because Post-Judgment Motion Failed to Extend Time under ARCAP 9(a).
The superior court entered judgment against Plaintiff Burkhamer in his wrongful death suit against the State, ruling that his notice of claim was not properly filed because it had been filed via facsimile. In this bound-to-stir-controversy decision, Division Two dismissed Burkhamer's appeal finding that the appellate court was without jurisdiction.
Four days after the superior court entered judgment against him, on January 30, Burkhamer filed in that court an "Objection to Defendant's Final Judgment and Order Dismissing Claim" which argued that the superior court's judgment was "overbroad." The Objection cited no rule of civil procedure or other authority allowing it to be filed. The superior court, though, set oral argument on it. On May 22, the superior court denied the motion and objection to the judgment. Then on June 19, Burkhamer filed his notice of appeal.
Writing for a 2-1 majority, Chief Judge Pelander was joined by Judge Howard and he first noted the well-established rule that the need to timely perfect an appeal is jurisdictional. See Edwards v. Young, 107 Ariz. 283, 284 (1971). Judge Pelander then continued that Burkhamer's Objection was not "one of the motions enumerated in ARCAP 9(b)." Op. at Para. 12. Citing and quoting Farmers Ins. Co. v. Vagnozzi, 132 Ariz. 219, 221 (1982), the majority stated that in order for the time to file an appeal to be extended, a motion "must both refer to rule 59 as authority for the motion and describe the grounds set forth in that rule." Op. at Para. 15, quoting Vagnozzi, 132 Ariz. at 221. Thus, because Burkhamer's Objection did not cite Rule 59 and because the trial court did not state that it was treating the Objection as coming under Rule 59, the Majority held that the appeal was untimely and had to be dismissed. In reaching that conclusion, the majority also noted that it was unpersuaded by the argument, relying on Sanders v. Foley, 190 Ariz. 182 (App. 1987), that the trial court's consideration of the merits sufficed to demonstrate its treatment of the Objection as a Rule 59 motion.
Dissenting, Judge Vasquez wrote that Vagnozzi did not compel the outcome reached by the majority, nor did the other cases it relied on. Judge Vasquez framed the issue in this case as "whether a party's filing could have been treated as a Rule 59(l) motion to alter or amend the judgment." Dissenting Op. at Para. 39. He continued that a Rule 59(l) motion need not comply with the same specificity requirements as a motion under Rule 59(a) "because the scope of the remedies associated with" each motion is so different. Id. at Para. 40. Particularly, he wrote that Rule 59(l) "provides only for altering or amending a judgment, clearly a less extreme remedy than vacating a judgment [under Rule 59(a)]...." Id.
Judge Vasquez noted that the fact that the superior court treated the Objection on its merits instead of dismissing it outright "supports an inference that the court decided the objection on its merits." Id. at 41. He concluded by writing that the majority needlessly placed form over substance in dismissing the appeal. He would have found the failure to explicitly cite Rule 59(l) a harmless and non-prejudicial error and would have reached the merits.
PRACTICE POINTERS: 1) Considering the superior court's ruling on the propriety of serving a notice of claim under ARS 12-821.01 via fax, counsel should serve these notices using the traditional means authorized by Rule 4 until the issue is authoritatively decided by the appellate courts; 2) Counsel filing post-judgment motions must be on their guard to explicitly invoke one of the grounds listed under ARCAP 9(b) to ensure that their time to file an appeal is extended.
The superior court entered judgment against Plaintiff Burkhamer in his wrongful death suit against the State, ruling that his notice of claim was not properly filed because it had been filed via facsimile. In this bound-to-stir-controversy decision, Division Two dismissed Burkhamer's appeal finding that the appellate court was without jurisdiction.
Four days after the superior court entered judgment against him, on January 30, Burkhamer filed in that court an "Objection to Defendant's Final Judgment and Order Dismissing Claim" which argued that the superior court's judgment was "overbroad." The Objection cited no rule of civil procedure or other authority allowing it to be filed. The superior court, though, set oral argument on it. On May 22, the superior court denied the motion and objection to the judgment. Then on June 19, Burkhamer filed his notice of appeal.
Writing for a 2-1 majority, Chief Judge Pelander was joined by Judge Howard and he first noted the well-established rule that the need to timely perfect an appeal is jurisdictional. See Edwards v. Young, 107 Ariz. 283, 284 (1971). Judge Pelander then continued that Burkhamer's Objection was not "one of the motions enumerated in ARCAP 9(b)." Op. at Para. 12. Citing and quoting Farmers Ins. Co. v. Vagnozzi, 132 Ariz. 219, 221 (1982), the majority stated that in order for the time to file an appeal to be extended, a motion "must both refer to rule 59 as authority for the motion and describe the grounds set forth in that rule." Op. at Para. 15, quoting Vagnozzi, 132 Ariz. at 221. Thus, because Burkhamer's Objection did not cite Rule 59 and because the trial court did not state that it was treating the Objection as coming under Rule 59, the Majority held that the appeal was untimely and had to be dismissed. In reaching that conclusion, the majority also noted that it was unpersuaded by the argument, relying on Sanders v. Foley, 190 Ariz. 182 (App. 1987), that the trial court's consideration of the merits sufficed to demonstrate its treatment of the Objection as a Rule 59 motion.
Dissenting, Judge Vasquez wrote that Vagnozzi did not compel the outcome reached by the majority, nor did the other cases it relied on. Judge Vasquez framed the issue in this case as "whether a party's filing could have been treated as a Rule 59(l) motion to alter or amend the judgment." Dissenting Op. at Para. 39. He continued that a Rule 59(l) motion need not comply with the same specificity requirements as a motion under Rule 59(a) "because the scope of the remedies associated with" each motion is so different. Id. at Para. 40. Particularly, he wrote that Rule 59(l) "provides only for altering or amending a judgment, clearly a less extreme remedy than vacating a judgment [under Rule 59(a)]...." Id.
Judge Vasquez noted that the fact that the superior court treated the Objection on its merits instead of dismissing it outright "supports an inference that the court decided the objection on its merits." Id. at 41. He concluded by writing that the majority needlessly placed form over substance in dismissing the appeal. He would have found the failure to explicitly cite Rule 59(l) a harmless and non-prejudicial error and would have reached the merits.
PRACTICE POINTERS: 1) Considering the superior court's ruling on the propriety of serving a notice of claim under ARS 12-821.01 via fax, counsel should serve these notices using the traditional means authorized by Rule 4 until the issue is authoritatively decided by the appellate courts; 2) Counsel filing post-judgment motions must be on their guard to explicitly invoke one of the grounds listed under ARCAP 9(b) to ensure that their time to file an appeal is extended.
Posted by azapp @ Fri, Jun 8, 2007
Dawson v. Withycombe (06/05/07): Division One Vacates Opinion Regarding Director Liability on Theories of Principal-Agency Liability for Fraud, Aiding and Abetting, Conspiracy, and Constructive Fraud Should Not Have Been Presented
Plaintiff Dawson loaned money to Futech, which went bankrupt before it repaid the loan. Plaintiff had relied on misrepresentations made to him by board members Goett and Rosepink. Plaintiff filed suit against Defendant Turner, a member of Futech’s board and Defendant Withycombe, another large investor in the company. Following rulings on various motions for summary judgment and for judgment as a matter of law, the claims that went to the jury were (1) fraud by misrepresentation, on theories of agency, aiding and abetting, and conspiracy and (2) constructive fraud. The jury found that Defendants were liable for the improper actions or inactions of board members Goett and Rosepink on a principal-agency theory; Defendant Withycombe had conspired with board members Rosepink and Goett to harm Plaintiff; and Defendants were each 35 percent at fault for aiding and abetting fraudulent misrepresentation and 40 percent at fault for constructive fraud.
Judge Kessler, writing for a unanimous panel, first found that there was sufficient evidence in the record to support the finding of an underlying misrepresentation by board member Goett, which formed the basis of Plaintiff’s claims against Defendants. The court remanded for a new trial on the principal-agency liability for fraud, finding that Plaintiff must present evidence of a “personal agency relationship” between the primary tortfeasors on the one hand, and Defendants on the other hand, beyond the mere delegation of board functions to Goett in his role as CEO.
The court found that judgment as a matter of law should have been entered in favor of Defendants on the theories of aiding and abetting, conspiracy, and constructive fraud. Specifically, the court found that the evidence of Defendants’ “actual awareness” of the underlying fraudulent scheme was insufficient to establish liability for aiding and abetting. The court further found there was no clear and convincing evidence of an actual “conspiratorial agreement” by Withycombe and Goett that fraud should be committed. Finally, with respect to constructive fraud, the court found that Defendants failed to preserve any objection to the jury instruction, but concluded that there was insufficient evidence that Plaintiff had reasonably relied on any duties allegedly owed to him by Defendants.
The court affirmed the trial court’s summary judgment decisions on negligence, finding that Defendants did not owe Plaintiff any personal duty as a potential creditor. The court also affirmed that prejudgment interest should accrue from the date the complaint was filed; the due date on the loan contract had no bearing on the calculation of prejudgment interest on the tort action.
Judge Kessler authored the opinion; Judges Portley and Irvine joined.
Plaintiff Dawson loaned money to Futech, which went bankrupt before it repaid the loan. Plaintiff had relied on misrepresentations made to him by board members Goett and Rosepink. Plaintiff filed suit against Defendant Turner, a member of Futech’s board and Defendant Withycombe, another large investor in the company. Following rulings on various motions for summary judgment and for judgment as a matter of law, the claims that went to the jury were (1) fraud by misrepresentation, on theories of agency, aiding and abetting, and conspiracy and (2) constructive fraud. The jury found that Defendants were liable for the improper actions or inactions of board members Goett and Rosepink on a principal-agency theory; Defendant Withycombe had conspired with board members Rosepink and Goett to harm Plaintiff; and Defendants were each 35 percent at fault for aiding and abetting fraudulent misrepresentation and 40 percent at fault for constructive fraud.
Judge Kessler, writing for a unanimous panel, first found that there was sufficient evidence in the record to support the finding of an underlying misrepresentation by board member Goett, which formed the basis of Plaintiff’s claims against Defendants. The court remanded for a new trial on the principal-agency liability for fraud, finding that Plaintiff must present evidence of a “personal agency relationship” between the primary tortfeasors on the one hand, and Defendants on the other hand, beyond the mere delegation of board functions to Goett in his role as CEO.
The court found that judgment as a matter of law should have been entered in favor of Defendants on the theories of aiding and abetting, conspiracy, and constructive fraud. Specifically, the court found that the evidence of Defendants’ “actual awareness” of the underlying fraudulent scheme was insufficient to establish liability for aiding and abetting. The court further found there was no clear and convincing evidence of an actual “conspiratorial agreement” by Withycombe and Goett that fraud should be committed. Finally, with respect to constructive fraud, the court found that Defendants failed to preserve any objection to the jury instruction, but concluded that there was insufficient evidence that Plaintiff had reasonably relied on any duties allegedly owed to him by Defendants.
The court affirmed the trial court’s summary judgment decisions on negligence, finding that Defendants did not owe Plaintiff any personal duty as a potential creditor. The court also affirmed that prejudgment interest should accrue from the date the complaint was filed; the due date on the loan contract had no bearing on the calculation of prejudgment interest on the tort action.
Judge Kessler authored the opinion; Judges Portley and Irvine joined.
Posted by azapp @ Fri, Jun 8, 2007
In Re Estate of Goldman (05/30/07): Division Two Holds That An Estate Should Be Valued, For Abatement Purposes, Not As a Fixed Amount At Date of Death, But As Finally Distributed From The Estate
Elliot Goldman passed away in 1995, and his brother Jay Goldman was appointed personal representative. The first article of Elliot’s will provided that all expenses of his last illness and funeral, costs of administration, and estate and inheritance taxes were to be paid from the residue of his estate. Article four of the will created trusts for each of Elliot’s two children and also included several specific bequests. Article five of the will made devises to several charitable organizations, including the Jewish Community Foundation of Southern Arizona. The first and fourth article payments, which the will directed to be made before the fifth article devises, exhausted the estate’s assets as originally valued at the time of Elliot’s death. However, in 2003, the estate’s real property was appraised again, and an increase in its value resulted in an estate balance of $1,844,650.64 as of November 2004. From Elliot’s death to November 2004, Jay made payments to all of the fifth article devisees other than the Foundation, evidently because he had “concerns about the ability of the Foundation to accomplish the goals [Eliot had] intended.”
The Foundation petitioned the probate court for an order to show cause seeking payment of the devise to it. The trial court found that the devise to the Foundation had not abated and granted the Foundation summary judgment. In so holding, the court found that “abatement of devises under a will is applied to the value of the estate at the time of distributions, not to the value of the estate as determined at date of death.” Jay appealed, arguing that date of death values are considered in determining whether abatement occurs.
The Court of Appeals affirmed the trial court, holding as a matter of first impression that abatement occurs or does not occur based on the value of the assets as finally distributed from the estate. The Court found various provisions of the Probate Code instructive in reaching its conclusion that “a decedent’s estate is not fixed at the time of his or her death, but rather, includes property existing at that time and throughout the administration of the estate.” The Court rejected Jay’s policy argument that a date-of-distribution valuation rule for abatement purposes would create a conflict between a personal representative’s duty to unabated beneficiaries (whose interests would often be best served by a prompt disposition of estate assets) and abated beneficiaries (whose devises might not abate if disposition of the estate were delayed in the hopes that, over time, the estate’s value would increase sufficiently to cover their interests).
Chief Judge Pelander authored the opinion, with Judge Howard, Presiding Judge, and Judge Vasquez concurring.
Elliot Goldman passed away in 1995, and his brother Jay Goldman was appointed personal representative. The first article of Elliot’s will provided that all expenses of his last illness and funeral, costs of administration, and estate and inheritance taxes were to be paid from the residue of his estate. Article four of the will created trusts for each of Elliot’s two children and also included several specific bequests. Article five of the will made devises to several charitable organizations, including the Jewish Community Foundation of Southern Arizona. The first and fourth article payments, which the will directed to be made before the fifth article devises, exhausted the estate’s assets as originally valued at the time of Elliot’s death. However, in 2003, the estate’s real property was appraised again, and an increase in its value resulted in an estate balance of $1,844,650.64 as of November 2004. From Elliot’s death to November 2004, Jay made payments to all of the fifth article devisees other than the Foundation, evidently because he had “concerns about the ability of the Foundation to accomplish the goals [Eliot had] intended.”
The Foundation petitioned the probate court for an order to show cause seeking payment of the devise to it. The trial court found that the devise to the Foundation had not abated and granted the Foundation summary judgment. In so holding, the court found that “abatement of devises under a will is applied to the value of the estate at the time of distributions, not to the value of the estate as determined at date of death.” Jay appealed, arguing that date of death values are considered in determining whether abatement occurs.
The Court of Appeals affirmed the trial court, holding as a matter of first impression that abatement occurs or does not occur based on the value of the assets as finally distributed from the estate. The Court found various provisions of the Probate Code instructive in reaching its conclusion that “a decedent’s estate is not fixed at the time of his or her death, but rather, includes property existing at that time and throughout the administration of the estate.” The Court rejected Jay’s policy argument that a date-of-distribution valuation rule for abatement purposes would create a conflict between a personal representative’s duty to unabated beneficiaries (whose interests would often be best served by a prompt disposition of estate assets) and abated beneficiaries (whose devises might not abate if disposition of the estate were delayed in the hopes that, over time, the estate’s value would increase sufficiently to cover their interests).
Chief Judge Pelander authored the opinion, with Judge Howard, Presiding Judge, and Judge Vasquez concurring.
Posted by azapp @ Fri, Jun 8, 2007
Friday, June 1, 2007
Salt River Project Agricultural Improvement and Power District v. Miller Park, L.L.C. (5/15/07): Division One Holds That Superior Court Did Not Abuse Its Discretion In Barring Use of Tax Protest Material To Impeach a Property Owner in a Condemnation Case, and That Sanctions Under Rule 68 May Be Awarded in Condemnation Cases.
SRP filed suit seeking to condemn real property owned by Miller Park. Prior to trial, Miller Park moved in limine to exclude evidence regarding Miller Park’s protest of the county assessor’s determination of “full cash value” of its property for tax purposes. SRP sought to introduce such evidence to impeach a Miller Park representative’s testimony as to the value of the property for condemnation purposes. The trial court granted Miller Park’s motion over SRP’s objection and the case proceeded to trial. Following a jury award favorable to Miller Park, SRP timely appealed.
On appeal, SRP argued that a property owner’s prior statement of value made for tax purposes is per se admissible to impeach the owner in a condemnation action if the owner testifies at trial regarding value. The court of appeals disagreed. The court explained that Arizona law takes different approaches to valuing property for tax and condemnation purposes. The former requires a determination of market value limited to present usage of the property, while the latter requires a determination of the property’s market value based on its highest and best use. As a result, an owner’s valuation prepared for tax purposes may not be relevant for impeachment in a condemnation proceeding. The court recognized that there may be instances in which such evidence could have impeachment value, but such determinations are left to the trial court’s discretion. In the present matter, where Miller Park had almost no participation in the preparation of the tax protest valuation, the trial court did not abuse its discretion in excluding such evidence.
Miller Park cross-appealed arguing that the superior court should have awarded it sanctions under Rule 68 because it obtained a judgment well in excess of an offer of judgment it made to SRP. SRP asserted that Rule 68 sanctions could not be awarded in condemnation proceedings because the Rule had been pre-empted by A.R.S. § 12-1128 (Supp. 2006). That statute grants a court discretion to award costs and jury fees in condemnation cases except in certain circumstances. SRP argued that the mandatory sanctions required by Rule 68 contravene the discretionary sanctions provided by the statute. Citing Pima County v. Hogan, 197 Ariz. 138, 3 P.3d 1058 (App. 1999), SRP argued that Rule 68 is inapplicable to all condemnation proceedings. Without commenting on the correctness of Hogan, the court of appeals disagreed, holding that Hogan was not controlling because that case dealt with a situation where Rule 68 and the statute were in direct conflict. The case at bar presents no such conflict. Because Miller Park recovered a verdict in excess of its offer of judgment, it became entitled to an award of costs under both the statute and the rule.
Presiding Judge Norris authored the unanimous opinion, joined by Judge Barker and Judge Thompson.
SRP filed suit seeking to condemn real property owned by Miller Park. Prior to trial, Miller Park moved in limine to exclude evidence regarding Miller Park’s protest of the county assessor’s determination of “full cash value” of its property for tax purposes. SRP sought to introduce such evidence to impeach a Miller Park representative’s testimony as to the value of the property for condemnation purposes. The trial court granted Miller Park’s motion over SRP’s objection and the case proceeded to trial. Following a jury award favorable to Miller Park, SRP timely appealed.
On appeal, SRP argued that a property owner’s prior statement of value made for tax purposes is per se admissible to impeach the owner in a condemnation action if the owner testifies at trial regarding value. The court of appeals disagreed. The court explained that Arizona law takes different approaches to valuing property for tax and condemnation purposes. The former requires a determination of market value limited to present usage of the property, while the latter requires a determination of the property’s market value based on its highest and best use. As a result, an owner’s valuation prepared for tax purposes may not be relevant for impeachment in a condemnation proceeding. The court recognized that there may be instances in which such evidence could have impeachment value, but such determinations are left to the trial court’s discretion. In the present matter, where Miller Park had almost no participation in the preparation of the tax protest valuation, the trial court did not abuse its discretion in excluding such evidence.
Miller Park cross-appealed arguing that the superior court should have awarded it sanctions under Rule 68 because it obtained a judgment well in excess of an offer of judgment it made to SRP. SRP asserted that Rule 68 sanctions could not be awarded in condemnation proceedings because the Rule had been pre-empted by A.R.S. § 12-1128 (Supp. 2006). That statute grants a court discretion to award costs and jury fees in condemnation cases except in certain circumstances. SRP argued that the mandatory sanctions required by Rule 68 contravene the discretionary sanctions provided by the statute. Citing Pima County v. Hogan, 197 Ariz. 138, 3 P.3d 1058 (App. 1999), SRP argued that Rule 68 is inapplicable to all condemnation proceedings. Without commenting on the correctness of Hogan, the court of appeals disagreed, holding that Hogan was not controlling because that case dealt with a situation where Rule 68 and the statute were in direct conflict. The case at bar presents no such conflict. Because Miller Park recovered a verdict in excess of its offer of judgment, it became entitled to an award of costs under both the statute and the rule.
Presiding Judge Norris authored the unanimous opinion, joined by Judge Barker and Judge Thompson.
Posted by azapp @ Fri, Jun 1, 2007
Breitbart-Napp v. Napp (5/24/07): Division One Holds that Superior Court Could Reopen Divorce Decree to Determine Whether Further Relief Under Rule 60 Was Appropriate.
In connection with a complicated divorce proceeding involving numerous business interests, the parties’ dissolution decree incorporated a negotiated property settlement agreement to “be signed by the parties.” Husband and Wife subsequently executed the Property Settlement Agreement (“PSA”), but Wife expressed concerns about the agreement based on alleged disclosure violations she learned about after negotiating the PSA. When executing the PSA, she expressly noted that her signature “shall not constitute [a] waiv[er of] my Rule 60(c) rights concerning Husband’s Rule 26.1 violation regarding this agreement.”
Wife subsequently moved for relief under Rule 60(c), which relief the trial court granted. On appeal, Husband argued that the trial court could not relieve a party pursuant to Rule 60(c) from a property settlement agreement that has not merged into the divorce decree issued by the court. The Court of Appeals framed the issue more narrowly: whether Rule 60(c)(3) can be utilized to allow the court to reopen the approval it has given to a non-merged settlement agreement pursuant to A.R.S. § 25-317(B) (2007). After a lengthy analysis, the Court of Appeals held that whether merged or incorporated by reference, a party could reopen a property settlement agreement under Rule 60(c) because in either case the decree must expressly refer to the court’s approval of the property disposition, and it is that term of the decree – the court’s approval – that is being reopened.
The Court further explained that the rule announced in Norwest Bank (Minnesota), N.A. v. Symington, 197 Ariz. 181, 187, ¶ 26, 3 P.3d 1101, 1107 (App. 2000) – that Rule 60(c)(3) does not require a showing that the outcome of the case would have been different but for the nondisclosure – applies to nondisclosure cases generally, not just to cases involving a judgment on the merits.
The Court further held that the trial court abused its discretion in awarding Wife attorneys’ fees under A.R.S. § 25-324. That statute does not establish a prevailing party standard for awarding fees and costs, but rather requires the court to determine the parties’ financial status. The court awarded fees in July 2005, more than three years after Wife’s last affidavit of financial information and eight months after Husband’s last financial affidavit, which failed to provide the trial court an adequate basis for the award.
The decision was authored by Judge Barker; Judges Portley and Ehrlich concurred.
In connection with a complicated divorce proceeding involving numerous business interests, the parties’ dissolution decree incorporated a negotiated property settlement agreement to “be signed by the parties.” Husband and Wife subsequently executed the Property Settlement Agreement (“PSA”), but Wife expressed concerns about the agreement based on alleged disclosure violations she learned about after negotiating the PSA. When executing the PSA, she expressly noted that her signature “shall not constitute [a] waiv[er of] my Rule 60(c) rights concerning Husband’s Rule 26.1 violation regarding this agreement.”
Wife subsequently moved for relief under Rule 60(c), which relief the trial court granted. On appeal, Husband argued that the trial court could not relieve a party pursuant to Rule 60(c) from a property settlement agreement that has not merged into the divorce decree issued by the court. The Court of Appeals framed the issue more narrowly: whether Rule 60(c)(3) can be utilized to allow the court to reopen the approval it has given to a non-merged settlement agreement pursuant to A.R.S. § 25-317(B) (2007). After a lengthy analysis, the Court of Appeals held that whether merged or incorporated by reference, a party could reopen a property settlement agreement under Rule 60(c) because in either case the decree must expressly refer to the court’s approval of the property disposition, and it is that term of the decree – the court’s approval – that is being reopened.
The Court further explained that the rule announced in Norwest Bank (Minnesota), N.A. v. Symington, 197 Ariz. 181, 187, ¶ 26, 3 P.3d 1101, 1107 (App. 2000) – that Rule 60(c)(3) does not require a showing that the outcome of the case would have been different but for the nondisclosure – applies to nondisclosure cases generally, not just to cases involving a judgment on the merits.
The Court further held that the trial court abused its discretion in awarding Wife attorneys’ fees under A.R.S. § 25-324. That statute does not establish a prevailing party standard for awarding fees and costs, but rather requires the court to determine the parties’ financial status. The court awarded fees in July 2005, more than three years after Wife’s last affidavit of financial information and eight months after Husband’s last financial affidavit, which failed to provide the trial court an adequate basis for the award.
The decision was authored by Judge Barker; Judges Portley and Ehrlich concurred.
Posted by azapp @ Fri, Jun 1, 2007
Home Builders Association of Central Arizona v. City of Maricopa(5/18/2007): Division Two Holds That The City of Maricopa Is Bound By Development Agreements Which Preclude It from Imposing Development Fees on Builders.
Pinal County entered into development agreements with homebuilders that required improvement of particular public infrastructure but did not impose any development fees. The agreements provided that the rights it established would run with the property and the agreement itself would bind the County, the developers and their respective successors and assigns. When the city of Maricopa was incorporated, its boundary included property subject to these pre-existing development agreements. Pursuant to an ordinance Maricopa adopted roughly two years after incorporation, the city attempted to assess development fees on the lots subject to the Pinal County development agreements. The developers brought a declaratory judgment action against the city, and, after a bench trial, the superior court ruled that the agreements were binding on Maricopa. This appeal followed.
Judge Howard, writing for a unanimous panel, held that Pinal County had the statutory authority to enter the development agreements under A.R.S. § 11-1101(B), that the agreements were binding on Maricopa because Maricopa was Pinal County’s successor in interest under A.R.S. § 11-1101(E), and therefore Maricopa could not assess development fees on the property subject to the agreements.
Judge Howard authored the opinion; Judges Pelander and Vasquez concurred.
Pinal County entered into development agreements with homebuilders that required improvement of particular public infrastructure but did not impose any development fees. The agreements provided that the rights it established would run with the property and the agreement itself would bind the County, the developers and their respective successors and assigns. When the city of Maricopa was incorporated, its boundary included property subject to these pre-existing development agreements. Pursuant to an ordinance Maricopa adopted roughly two years after incorporation, the city attempted to assess development fees on the lots subject to the Pinal County development agreements. The developers brought a declaratory judgment action against the city, and, after a bench trial, the superior court ruled that the agreements were binding on Maricopa. This appeal followed.
Judge Howard, writing for a unanimous panel, held that Pinal County had the statutory authority to enter the development agreements under A.R.S. § 11-1101(B), that the agreements were binding on Maricopa because Maricopa was Pinal County’s successor in interest under A.R.S. § 11-1101(E), and therefore Maricopa could not assess development fees on the property subject to the agreements.
Judge Howard authored the opinion; Judges Pelander and Vasquez concurred.
Posted by azapp @ Fri, Jun 1, 2007
Girouard v. Skyline Steel, Inc. (5/24/07): Division One Holds That Evidence of Manner of Death is Admissible to Prove Damages in Wrongful Death Claim But Only Insofar as Relevant to the Survivor’s Own Mental Anguish
In a wrongful death trial limited to the issue of damages, Defendant filed a motion in limine to preclude evidence regarding the manner of death of the decedent, who was burned beyond recognition in a car crash. Despite Plaintiff’s claim that the evidence was relevant to Plaintiff’s own suffering resulting from the horrific death of his son, the trial court ruled to preclude the evidence and denied Plaintiff’s motion to reconsider. The jury awarded Plaintiff $250,000 in damages. Defendant requested an award of costs stemming from a joint offer of judgment under Rule 68(d), Ariz. R. Civ. P. The trial court entered judgment and awarded costs, finding that the offer of judgment did not need to be apportioned under the circumstances. Plaintiff appealed the preclusion of evidence and the award of costs under Rule 68(d).
The Court of Appeals reversed and remanded for a new trial, finding that the trial court erred by precluding evidence of the manner of death insofar as it was relevant to Plaintiff’s own mental anguish resulting from the death. The evidence was properly excludable to the extent that it bore relevance only to the pain and suffering of the decedent, which are not compensable in a wrongful death action. Addressing the award of costs as an issue that might arise again on remand, the Court held that the non-apportioned joint offer from both defendants did not preclude an award of costs under Rule 68(d). Failure to apportion liability between the defendants did not prohibit Plaintiff from making a meaningful choice between accepting the offer or proceeding to trial because the claim was brought against both defendants on a theory of joint and several liability, and because one defendant admitted liability.
Judge Kessler wrote the opinion for the panel; Judges Snow and Barker concurred.
In a wrongful death trial limited to the issue of damages, Defendant filed a motion in limine to preclude evidence regarding the manner of death of the decedent, who was burned beyond recognition in a car crash. Despite Plaintiff’s claim that the evidence was relevant to Plaintiff’s own suffering resulting from the horrific death of his son, the trial court ruled to preclude the evidence and denied Plaintiff’s motion to reconsider. The jury awarded Plaintiff $250,000 in damages. Defendant requested an award of costs stemming from a joint offer of judgment under Rule 68(d), Ariz. R. Civ. P. The trial court entered judgment and awarded costs, finding that the offer of judgment did not need to be apportioned under the circumstances. Plaintiff appealed the preclusion of evidence and the award of costs under Rule 68(d).
The Court of Appeals reversed and remanded for a new trial, finding that the trial court erred by precluding evidence of the manner of death insofar as it was relevant to Plaintiff’s own mental anguish resulting from the death. The evidence was properly excludable to the extent that it bore relevance only to the pain and suffering of the decedent, which are not compensable in a wrongful death action. Addressing the award of costs as an issue that might arise again on remand, the Court held that the non-apportioned joint offer from both defendants did not preclude an award of costs under Rule 68(d). Failure to apportion liability between the defendants did not prohibit Plaintiff from making a meaningful choice between accepting the offer or proceeding to trial because the claim was brought against both defendants on a theory of joint and several liability, and because one defendant admitted liability.
Judge Kessler wrote the opinion for the panel; Judges Snow and Barker concurred.
Posted by azapp @ Fri, Jun 1, 2007
Airfreight Express Ltd. V. Evergreen Air Center, Inc. (5/21/07): Division Two Finds That Doctrine of Claim Preclusion Does Not Bar Party From Asserting Claims Dismissed Without Prejudice in Previous Action and That Party Could Not Challenge Sufficiency of Declarations on Appeal When It Failed to Move to Strike Declarations Below
Airfreight Express Ltd. (“AFX”) and Evergreen entered into a settlement agreement to settle a dispute that arose under the parties’ aircraft maintenance agreement. AFX filed suit against Evergreen asserting multiple claims, including breach of both agreements. Evergreen counterclaimed for fraud, unjust enrichment, and breach of contract. Upon Evergreen’s motion to dismiss, the trial court dismissed AFX’s claims without prejudice and Evergreen prevailed on its breach of contract counterclaim after a bench trial. AFX filed the instant action within a week of the trial court’s ruling on Evergreen’s breach of contract counterclaim, alleging many of the same claims it had alleged in the first action, plus rescission of the settlement agreement on the basis of fraud, bad faith, duress, and a lack of consideration. Evergreen filed a motion to dismiss the claims raised in the second action, arguing that the doctrine of claim preclusion barred AFX’s claims. The trial court dismissed all but AFX’s claim for breach of the settlement agreement. Evergreen then filed a motion for summary judgment asserting the maintenance and settlement agreements barred AFX’s claim for lost profits caused by Evergreen’s alleged delay in completing aircraft repairs. The trial court granted the motion solely on the issue of the timely completion of the repair of the aircraft. The court entered a stipulated judgment agreed upon by the parties and this appeal followed.
The court of appeals found that the judgment in Evergreen’s favor in the first action did not bar AFX’s claims under the doctrine claim preclusion because the trial court had granted Evergreen’s motion to dismiss and dismissed AFX’s complaint without prejudice before entering judgment in the first action. Moreover, the doctrine of claim preclusion did not bar AFX from asserting claims in the second action that had been alleged as affirmative defenses in the prior action because affirmative defenses are not claims. The court noted that issue preclusion may have applied in this case, but Evergreen had waived issue preclusion by not raising it as a defense in its motion to dismiss and not asserting it on appeal as a valid basis for grant of that motion.
The court of appeals further found that the trial court erred in granting Evergreen’s motion for summary judgment, which had argued that the limitations of damages clause in the maintenance clause prevented AFX from recovering lost profits caused by an alleged delay in repairing the aircraft. The court adopted the rule that “A party may contract to limit liability in damages for nonperformance of promises…. Such a provision is not effective, however, if that party acts fraudulently or in bad faith.” AFX had presented signed but undated declarations, which alleged that Evergreen acted in bad faith so that its sister company could steal AFX’s business. The court noted that Evergreen had not moved to strike the declarations and therefore had waived on appeal any argument about their sufficiency. Based on the information found in the declarations, the court of appeals found that AFX had presented sufficient facts to preclude summary judgment on whether Evergreen performed the contract in bad faith.
Judge Brammer authored the opinion, joined by Judges Eckerstrom and Espinosa.
Airfreight Express Ltd. (“AFX”) and Evergreen entered into a settlement agreement to settle a dispute that arose under the parties’ aircraft maintenance agreement. AFX filed suit against Evergreen asserting multiple claims, including breach of both agreements. Evergreen counterclaimed for fraud, unjust enrichment, and breach of contract. Upon Evergreen’s motion to dismiss, the trial court dismissed AFX’s claims without prejudice and Evergreen prevailed on its breach of contract counterclaim after a bench trial. AFX filed the instant action within a week of the trial court’s ruling on Evergreen’s breach of contract counterclaim, alleging many of the same claims it had alleged in the first action, plus rescission of the settlement agreement on the basis of fraud, bad faith, duress, and a lack of consideration. Evergreen filed a motion to dismiss the claims raised in the second action, arguing that the doctrine of claim preclusion barred AFX’s claims. The trial court dismissed all but AFX’s claim for breach of the settlement agreement. Evergreen then filed a motion for summary judgment asserting the maintenance and settlement agreements barred AFX’s claim for lost profits caused by Evergreen’s alleged delay in completing aircraft repairs. The trial court granted the motion solely on the issue of the timely completion of the repair of the aircraft. The court entered a stipulated judgment agreed upon by the parties and this appeal followed.
The court of appeals found that the judgment in Evergreen’s favor in the first action did not bar AFX’s claims under the doctrine claim preclusion because the trial court had granted Evergreen’s motion to dismiss and dismissed AFX’s complaint without prejudice before entering judgment in the first action. Moreover, the doctrine of claim preclusion did not bar AFX from asserting claims in the second action that had been alleged as affirmative defenses in the prior action because affirmative defenses are not claims. The court noted that issue preclusion may have applied in this case, but Evergreen had waived issue preclusion by not raising it as a defense in its motion to dismiss and not asserting it on appeal as a valid basis for grant of that motion.
The court of appeals further found that the trial court erred in granting Evergreen’s motion for summary judgment, which had argued that the limitations of damages clause in the maintenance clause prevented AFX from recovering lost profits caused by an alleged delay in repairing the aircraft. The court adopted the rule that “A party may contract to limit liability in damages for nonperformance of promises…. Such a provision is not effective, however, if that party acts fraudulently or in bad faith.” AFX had presented signed but undated declarations, which alleged that Evergreen acted in bad faith so that its sister company could steal AFX’s business. The court noted that Evergreen had not moved to strike the declarations and therefore had waived on appeal any argument about their sufficiency. Based on the information found in the declarations, the court of appeals found that AFX had presented sufficient facts to preclude summary judgment on whether Evergreen performed the contract in bad faith.
Judge Brammer authored the opinion, joined by Judges Eckerstrom and Espinosa.
Posted by azapp @ Fri, Jun 1, 2007
