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Thursday, September 27, 2007
Arizona Supreme Court Minutes:
The Arizona Supreme Court granted review in 5 cases:
1. D JERE' WEBB v VICTORIA GITTLEN et al
2. JEAN CUNDIFF v STATE FARM MUTUAL AUTO INSURANCE
3. PICASO v TUCSON UNIFIED SCHOOL DISTRICT
4. STATE OF ARIZONA v GARY EDWARD COX
5. DONALD W. SR/ROBIN C. v ADES/DONALD W. JR
The Arizona Supreme Court granted review in 5 cases:
1. D JERE' WEBB v VICTORIA GITTLEN et al
2. JEAN CUNDIFF v STATE FARM MUTUAL AUTO INSURANCE
3. PICASO v TUCSON UNIFIED SCHOOL DISTRICT
4. STATE OF ARIZONA v GARY EDWARD COX
5. DONALD W. SR/ROBIN C. v ADES/DONALD W. JR
Posted by azapp @ Thu, Sep 27, 2007
PF Chang’s v Indus. Comm’n of Ariz. (08/16/2007): Arizona Court of Appeals Division One Applies “Friction and Strain” Rule to Affirm Industrial Commision Award of Compensation for Injury From Workplace Assault
PF Chang’s, a restaurant, appealed from the ICA’s finding of a compensable claim in favor of Ngok Wau Lau, a former PF Chang’s cook who was assaulted and injured by a supervisor following a workplace disagreement. On appeal PF Chang’s argued that the ALJ erred in holding that the assault was anything but “purely personal” (and thus did not arise out of Lau’s employment).
To be compensable, an injury must both arise out of and be sustained in the course of employment. A.R.S. § 23-1021(A) (2005). The Court of Appeals explained that assault-related injuries are generally compensable when the altercation arises out of a work-related dispute. Moreover, under the “friction and strain rule,” even if the subject of the dispute is unrelated to the work, the assault is compensable if the work of the participants brought them together and created the relations and conditions which resulted in the clash. The Arizona appeals court adopted the “friction and restraint” rule, rejected P.F. Chang’s argument, and held that because the assault arose out of “the friction and strain” of employment, the ALJ properly awarded a compensable claim.
Judge Thompson authored the opinion; Judges Irvine and Snow concurred.
PF Chang’s, a restaurant, appealed from the ICA’s finding of a compensable claim in favor of Ngok Wau Lau, a former PF Chang’s cook who was assaulted and injured by a supervisor following a workplace disagreement. On appeal PF Chang’s argued that the ALJ erred in holding that the assault was anything but “purely personal” (and thus did not arise out of Lau’s employment).
To be compensable, an injury must both arise out of and be sustained in the course of employment. A.R.S. § 23-1021(A) (2005). The Court of Appeals explained that assault-related injuries are generally compensable when the altercation arises out of a work-related dispute. Moreover, under the “friction and strain rule,” even if the subject of the dispute is unrelated to the work, the assault is compensable if the work of the participants brought them together and created the relations and conditions which resulted in the clash. The Arizona appeals court adopted the “friction and restraint” rule, rejected P.F. Chang’s argument, and held that because the assault arose out of “the friction and strain” of employment, the ALJ properly awarded a compensable claim.
Judge Thompson authored the opinion; Judges Irvine and Snow concurred.
Posted by azapp @ Thu, Sep 27, 2007
Wednesday, September 26, 2007
City of Chandler v. Arizona Department of Transportation (9/18/2007): Arizona Court of Appeals Division One Holds that Utility Relocation Reimbursement Statute, A.R.S. § 28-7156, Does Not Require the Department of Transportation to Reimburse Cities For Relocation of Utility Lines Necessitated by State Highway Construction.
During the construction of the Santan Freeway, several water and sewer utility lines owned by Chandler were relocated. Chandler paid for the relocation, but sought reimbursement from Arizona Department of Transportation, asserting a prior rights claim and a statutory reimbursement claim under A.R.S. § 28-7156. The trial court found that § 28-7156 required ADOT to reimburse Chandler; ADOT appealed.
The Arizona Appeals Court vacated the trial court’s grant of summary judgment in Chandler’s favor, finding that the trial court had erroneously interpreted the utility relocation reimbursement statute. Section 28-7156 provides, in relevant part, that ADOT “may authorize reimbursement to a city, town or county” for the cost of relocation. Under the plain language, ADOT had discretion, but was not obligated, to reimburse localities for utility relocation. The Court rejected Chandler’s argument that it should construe “may authorize” as mandatory under Brooke v. Moore, 60 Ariz. 551,(1943) (in certain contexts “may” means “shall”). Unlike in Brooke, where the Tax Commission’s denial of a permit for horse and dog-racing was arbitrary, capricious and in contravention of the public interest, ADOT’s exercise of discretion to deny reimbursement to Chandler was neither arbitrary nor capricious and the denial was in the best interest of the State.
Opinion authored by Judge Snow, with Presiding Judge Winthrop and Judge Weisberg concurring.
During the construction of the Santan Freeway, several water and sewer utility lines owned by Chandler were relocated. Chandler paid for the relocation, but sought reimbursement from Arizona Department of Transportation, asserting a prior rights claim and a statutory reimbursement claim under A.R.S. § 28-7156. The trial court found that § 28-7156 required ADOT to reimburse Chandler; ADOT appealed.
The Arizona Appeals Court vacated the trial court’s grant of summary judgment in Chandler’s favor, finding that the trial court had erroneously interpreted the utility relocation reimbursement statute. Section 28-7156 provides, in relevant part, that ADOT “may authorize reimbursement to a city, town or county” for the cost of relocation. Under the plain language, ADOT had discretion, but was not obligated, to reimburse localities for utility relocation. The Court rejected Chandler’s argument that it should construe “may authorize” as mandatory under Brooke v. Moore, 60 Ariz. 551,(1943) (in certain contexts “may” means “shall”). Unlike in Brooke, where the Tax Commission’s denial of a permit for horse and dog-racing was arbitrary, capricious and in contravention of the public interest, ADOT’s exercise of discretion to deny reimbursement to Chandler was neither arbitrary nor capricious and the denial was in the best interest of the State.
Opinion authored by Judge Snow, with Presiding Judge Winthrop and Judge Weisberg concurring.
Posted by azapp @ Wed, Sep 26, 2007
Tuesday, September 18, 2007
Leathers v. Leathers (9/13/2007): Arizona Court Of Appeals Division One Holds That The Trial Court Erred In Its Divorce Decree By Miscalculating Spousal Maintenance And Awarding A Life Insurance Policy And Attorneys’ Fee In Favor Of The Wife, But The Trial Court Correctly Divided The Community Assets And Debts.
Mr. and Mrs. Leathers filed for divorce after forty-plus years of marriage. It was “undisputed that, throughout the marriage, husband was the bread-winner and wife was primarily a homemaker and stay-at-home mother.” The trial court ruled for Mrs. Leathers with respect to “spousal maintenance, a life insurance policy on husband’s life, attorneys’ fees, and the distribution of assets and debts . . . .” Mr. Leathers appealed.
The Arizona Court of Appeals reversed in part and affirmed in part. First, it held that, while spousal maintenance was warranted, the trial court improperly calculated Mr. Leathers’ actual income when determining the amount of maintenance. Moreover, as part of Mrs. Leathers’ spousal maintenance, the trial court awarded her half of Mr. Leathers’ anticipated social security benefits. The trial court erred by failing to offset that amount by Mrs. Leathers’ own anticipated social security benefits. Second, it concluded that Mrs. Leathers failed to raise the life insurance policy issue in a timely manner pursuant to Rule 16(d) of the Arizona Rules of Civil Procedure, which requires that contested issues of fact and law appear in the joint pretrial statement. Third, it reversed and remanded the award of attorneys’ fees in light of its holdings in favor of Mr. Leathers. Finally, it affirmed the trial court’s distribution of community assets and debts.
Judge Thompson authored the opinion; Judges Portley and Winthrop concurred.
Mr. and Mrs. Leathers filed for divorce after forty-plus years of marriage. It was “undisputed that, throughout the marriage, husband was the bread-winner and wife was primarily a homemaker and stay-at-home mother.” The trial court ruled for Mrs. Leathers with respect to “spousal maintenance, a life insurance policy on husband’s life, attorneys’ fees, and the distribution of assets and debts . . . .” Mr. Leathers appealed.
The Arizona Court of Appeals reversed in part and affirmed in part. First, it held that, while spousal maintenance was warranted, the trial court improperly calculated Mr. Leathers’ actual income when determining the amount of maintenance. Moreover, as part of Mrs. Leathers’ spousal maintenance, the trial court awarded her half of Mr. Leathers’ anticipated social security benefits. The trial court erred by failing to offset that amount by Mrs. Leathers’ own anticipated social security benefits. Second, it concluded that Mrs. Leathers failed to raise the life insurance policy issue in a timely manner pursuant to Rule 16(d) of the Arizona Rules of Civil Procedure, which requires that contested issues of fact and law appear in the joint pretrial statement. Third, it reversed and remanded the award of attorneys’ fees in light of its holdings in favor of Mr. Leathers. Finally, it affirmed the trial court’s distribution of community assets and debts.
Judge Thompson authored the opinion; Judges Portley and Winthrop concurred.
Posted by azapp @ Tue, Sep 18, 2007
Thursday, September 13, 2007
La Canada Hills Limited Partnership v. Kite (9/10/2007): Arizona Court of Appeals Division Two Holds That Statute of Limitations Governing Settlement of a Partnership Account (Not Statute of Limitations for Action on a Debt Based on Written Contract), Applies to a Claim Seeking a Declaratory Judgment Regarding a Limited Partners’ Failure to Make Payments to a Limited Partnership
Defendant purchased an interest in a limited partnership pursuant to a subscription agreement, but stopped making the required payments in 1993. The partners voted to dissolve the partnership in 2005. The partnership sued Defendant for declaratory relief and for breach of contract stemming from her breach of the subscription agreement between 1993 and 1995. The trial court granted Defendant’s motion for summary judgment, finding that both claims were barred by A.R.S. § 12-548 (six-year statute of limitations for action for debt based on a written contract). The partnership appealed.
The Arizona Appeals Court upheld the dismissal of the breach of contract claim but reversed the dismissal of the claim for declaratory relief. The claim for declaratory judgment was similar in substance, timing and purpose to an accounting action for settlement of a partnership account. Thus, A.R.S. § 12-544(2) is the applicable statute of limitations, and provides that the cause of action did not accrue until the cessation of partnership dealings. The applicable four-year limitations period therefore had not expired. The breach of contract claim, however, accrued when the partnership became aware of Defendant’s failure to make the required payments in 1993. The trial court therefore did not err in finding this claim barred by A.R.S. § 12-548.
Presiding Judge Eckerstrom wrote the opinion; Judges Espinosa and Vásquez concurred.
Defendant purchased an interest in a limited partnership pursuant to a subscription agreement, but stopped making the required payments in 1993. The partners voted to dissolve the partnership in 2005. The partnership sued Defendant for declaratory relief and for breach of contract stemming from her breach of the subscription agreement between 1993 and 1995. The trial court granted Defendant’s motion for summary judgment, finding that both claims were barred by A.R.S. § 12-548 (six-year statute of limitations for action for debt based on a written contract). The partnership appealed.
The Arizona Appeals Court upheld the dismissal of the breach of contract claim but reversed the dismissal of the claim for declaratory relief. The claim for declaratory judgment was similar in substance, timing and purpose to an accounting action for settlement of a partnership account. Thus, A.R.S. § 12-544(2) is the applicable statute of limitations, and provides that the cause of action did not accrue until the cessation of partnership dealings. The applicable four-year limitations period therefore had not expired. The breach of contract claim, however, accrued when the partnership became aware of Defendant’s failure to make the required payments in 1993. The trial court therefore did not err in finding this claim barred by A.R.S. § 12-548.
Presiding Judge Eckerstrom wrote the opinion; Judges Espinosa and Vásquez concurred.
Posted by azapp @ Thu, Sep 13, 2007
Webb v. Omni Block, Inc. (9/6/2007): Arizona Court of Appeals Division One Holds Expert Testimony on Apportionment of Fault Is Inadmissible Under Rule 704
Plaintiffs were homeowners who sued Omni Block and others when they discovered failures in the block and related products in their home. The jury found for the Webbs, but found Omni only 6% at fault. Omni and the Webbs requested fees and costs under A.R.S. 12-341.01, and the Court awarded fees and costs to the Webbs. Omni appealed and the Webbs cross-appealed.
The Webbs’ cross-appeal challenged the trial court’s decision, under Rule 704, to admit expert testimony on the degree of fault, of a homeowner who acts as his own general contractor, as the Webbs did here. The Court of Appeals held that the expert’s testimony invaded the province of the jury and was inadmissible. Specifically, the Court noted that the testimony as to the percentages of fault among various parties constituted legal conclusions that are barred by Rule 704. The Court further held that such error was not harmless.
The Court reversed the judgment of the trial court and awarded the Webbs their costs and fees on appeal.
Judge Weisberg authored the opinion in which Judges Winthrop and Ehrlich joined.
Plaintiffs were homeowners who sued Omni Block and others when they discovered failures in the block and related products in their home. The jury found for the Webbs, but found Omni only 6% at fault. Omni and the Webbs requested fees and costs under A.R.S. 12-341.01, and the Court awarded fees and costs to the Webbs. Omni appealed and the Webbs cross-appealed.
The Webbs’ cross-appeal challenged the trial court’s decision, under Rule 704, to admit expert testimony on the degree of fault, of a homeowner who acts as his own general contractor, as the Webbs did here. The Court of Appeals held that the expert’s testimony invaded the province of the jury and was inadmissible. Specifically, the Court noted that the testimony as to the percentages of fault among various parties constituted legal conclusions that are barred by Rule 704. The Court further held that such error was not harmless.
The Court reversed the judgment of the trial court and awarded the Webbs their costs and fees on appeal.
Judge Weisberg authored the opinion in which Judges Winthrop and Ehrlich joined.
Posted by azapp @ Thu, Sep 13, 2007
Friday, September 7, 2007
Save Our Valley Association v. A.C.C. and Salt River Project(8/16/07): Arizona Court of Appeals Division One Holds That Statute Relating to the Issuance of a Certificate of Environmental Compatibility Does Not Provide an Independent Avenue for Seeking Judicial Review of a Decision of the Arizona Corporation Commission.
Save Our Valley Association (“Save”) is a citizens’ and homeowners’ committee that opposed the proposed siting of an SRP powerline. After the Arizona Powerplant and Transmission Line Siting Committee (“Committee”) approved the siting opposed by Save, Save appealed to the Arizona Corporation Commission (“ACC”). On August 24, the ACC ruled, rejecting the appeal. On September 22, Save asked for reconsideration under ARS 40-360.07(c). The ACC took no action and Save filed its complaint in Superior Court.
ACC moved for judgment on the pleadings, contending that Save’s rehearing request was untimely under ARS 40-253. The Superior Court granted judgment for ACC and Save appealed.
The Arizona Appellate Court held that a party cannot challenge an order or decision of the Commission in court unless a timely application for rehearing has been previously filed with the Commission. The court ruled that the specific provisions of the line-siting statute, A.R.S. § 40-360.07(C) (relating to the issuance of a certificate of environmental compatibility), have not explicitly or implicitly replaced the requirement under A.R.S. § 40-253 to file, within 20 days, an application for rehearing prior to filing an action for review of an ACC decision in the superior court.
Judge Brown authored the opinion; Judges Hall and Timmer concurred.
Save Our Valley Association (“Save”) is a citizens’ and homeowners’ committee that opposed the proposed siting of an SRP powerline. After the Arizona Powerplant and Transmission Line Siting Committee (“Committee”) approved the siting opposed by Save, Save appealed to the Arizona Corporation Commission (“ACC”). On August 24, the ACC ruled, rejecting the appeal. On September 22, Save asked for reconsideration under ARS 40-360.07(c). The ACC took no action and Save filed its complaint in Superior Court.
ACC moved for judgment on the pleadings, contending that Save’s rehearing request was untimely under ARS 40-253. The Superior Court granted judgment for ACC and Save appealed.
The Arizona Appellate Court held that a party cannot challenge an order or decision of the Commission in court unless a timely application for rehearing has been previously filed with the Commission. The court ruled that the specific provisions of the line-siting statute, A.R.S. § 40-360.07(C) (relating to the issuance of a certificate of environmental compatibility), have not explicitly or implicitly replaced the requirement under A.R.S. § 40-253 to file, within 20 days, an application for rehearing prior to filing an action for review of an ACC decision in the superior court.
Judge Brown authored the opinion; Judges Hall and Timmer concurred.
Posted by azapp @ Fri, Sep 7, 2007
Kaman Aerospace Corp. v. Arizona Board of Regents (8/23/2007): Division Two Holds That Contract Modifications Agreed to by University of Arizona Engineers, Not Authorized by the University of Arizona Board of Regents, Are Unenforceable.
The University of Arizona’s astronomy department has a research wing called Steward Observatory. The Observatory has a mirror laboratory, and the Arizona Board of Regents (“ABOR”) entered into a contract with Lockheed Martin for ABOR to design, develop, and assemble a "collimator," a machine described at trial as a "telescope working in reverse." ABOR partnered with Kaman on the project. ABOR would provide the mirrors, and Kaman was responsible for providing the support and control components of the collimator. Kaman and ABOR entered into a written contract with a fixed price. The contract contained a statement of work describing the tasks Kaman was to perform, as well as "billing milestones" for when Kaman was to be compensated for various tasks.
A dispute ultimately developed wherein ABOR rejected several of the modifications that Kaman claimed were enforceable modifications to the statement of work, for which Kaman was entitled to compensation. After a trial, the jury returned a verdict in favor of Kaman. ABOR appealed, claiming that the trial court erred when it denied ABOR's motions for judgment as a matter of law because Kaman failed to prove an authorized signatory had executed contract modifications on ABOR's behalf.
On de novo review, Division Two agreed, holding that the modifications entered into by unauthorized personnel (including some Steward Observatory engineers) were not binding on ABOR, since the University had designated nine officers "as authorized signatories to execute contracts . . . on behalf of the University of Arizona and ABOR."
The Court noted that anyone entering into an arrangement with the government takes the risk of having accurately ascertained that one who purports to act for the government stays within the bounds of that authority. In connection with contract modifications that included cost changes, until an ABOR officer with contracting authority executed a document embodying both the contract change and its cost, ABOR was not bound. The Court also held that course of conduct by unauthorized state officials cannot bind the state.
ABOR also argued that in the event the Court found judgment was improperly entered for Kaman on Kaman’s breach of contract claim, the Court should direct the trial court to enter judgment for ABOR’s counterclaim for breach of contract. The Court declined to do so, noting that ABOR’s argument on this point was “underdeveloped.” The verdict in favor of Kaman on ABOR’s breach of contract claim was a general one, and the Court’s finding that no authorized agent ever bound ABOR to the modifications “does not necessarily preclude the jury’s factual finding on a separate cause of action that Kaman did not breach the contract.” Because the jury could have concluded ABOR had not proved Kaman breached the contract, that ABOR had itself breached the contract, or could have been unpersuaded by ABOR’s damages evidence, either alternatively or collectively, the Court affirmed the trial court’s denial of ABOR’s motion for a new trial solely as to damages on its counterclaim.
Judge Brammer authored the opinion; Judges Howard and Pelander concurred.
The University of Arizona’s astronomy department has a research wing called Steward Observatory. The Observatory has a mirror laboratory, and the Arizona Board of Regents (“ABOR”) entered into a contract with Lockheed Martin for ABOR to design, develop, and assemble a "collimator," a machine described at trial as a "telescope working in reverse." ABOR partnered with Kaman on the project. ABOR would provide the mirrors, and Kaman was responsible for providing the support and control components of the collimator. Kaman and ABOR entered into a written contract with a fixed price. The contract contained a statement of work describing the tasks Kaman was to perform, as well as "billing milestones" for when Kaman was to be compensated for various tasks.
A dispute ultimately developed wherein ABOR rejected several of the modifications that Kaman claimed were enforceable modifications to the statement of work, for which Kaman was entitled to compensation. After a trial, the jury returned a verdict in favor of Kaman. ABOR appealed, claiming that the trial court erred when it denied ABOR's motions for judgment as a matter of law because Kaman failed to prove an authorized signatory had executed contract modifications on ABOR's behalf.
On de novo review, Division Two agreed, holding that the modifications entered into by unauthorized personnel (including some Steward Observatory engineers) were not binding on ABOR, since the University had designated nine officers "as authorized signatories to execute contracts . . . on behalf of the University of Arizona and ABOR."
The Court noted that anyone entering into an arrangement with the government takes the risk of having accurately ascertained that one who purports to act for the government stays within the bounds of that authority. In connection with contract modifications that included cost changes, until an ABOR officer with contracting authority executed a document embodying both the contract change and its cost, ABOR was not bound. The Court also held that course of conduct by unauthorized state officials cannot bind the state.
ABOR also argued that in the event the Court found judgment was improperly entered for Kaman on Kaman’s breach of contract claim, the Court should direct the trial court to enter judgment for ABOR’s counterclaim for breach of contract. The Court declined to do so, noting that ABOR’s argument on this point was “underdeveloped.” The verdict in favor of Kaman on ABOR’s breach of contract claim was a general one, and the Court’s finding that no authorized agent ever bound ABOR to the modifications “does not necessarily preclude the jury’s factual finding on a separate cause of action that Kaman did not breach the contract.” Because the jury could have concluded ABOR had not proved Kaman breached the contract, that ABOR had itself breached the contract, or could have been unpersuaded by ABOR’s damages evidence, either alternatively or collectively, the Court affirmed the trial court’s denial of ABOR’s motion for a new trial solely as to damages on its counterclaim.
Judge Brammer authored the opinion; Judges Howard and Pelander concurred.
Posted by azapp @ Fri, Sep 7, 2007
