AZAPP Blog

Buencamino v. Noftsinger (11/27/2009): Arizona Court of Appeals Division One Holds That Courts Need Address A.R.S. § 25-408(I)’s  Relocation Factors in Child Custody Cases Only if (1) There Is a Written Agreement or Court Order Providing for Custody, or (2) Both Parents Reside in Arizona

The Appellant (“Father”) and Appellee (“Mother”) had a child in 2004.  Mother and Father never married, and the child lived at times with each parent separately or with both parents. In 2006, while the child was living with Father, Mother decided to marry and move to Maryland to be with her new husband. Mother wanted to take the child with her to Maryland, but Father did not agree; Mother moved to Maryland without the child. There was no written agreement regarding custody. Father filed a paternity action. After a trial, the family court entered an order providing for joint custody and equal parenting time. Father appealed, arguing that this was a relocation case and thus the family court should have considered the relocation factors set out in A.R.S. § 25-408(I).

The Arizona Appeals Court affirmed the family court’s order. A.R.S. § 25-408(B) sets out the statutory prerequisites for the application of the statutory relocation factors. The Court held that the plain language of the prerequisites means that a family court must consider the statutory relocation factors only when either (1) there is “a written agreement or court order providing for custody or parenting time by both parents” or (2) both parents reside in Arizona. Since neither prerequisite applied here, the Appeals Court held that the family court was not required to consider the statutory relocation factors.

Judge Gemmill authored the opinion; Judges Weisberg and Orozco concurred.

Tripati v. Forwith (11/3/2009):  Arizona Court of Appeals Division One Holds that an Appellant Must Obtain a Signed Order Denying a Motion for New Trial Before Filing a Notice of Appeal, and that a Motion for New Trial May Extend the Time to File a Notice of Appeal When It is Used to Challenge the Denial of a Rule 60(c) Motion.

Tripati, an inmate, filed a complaint against Corrections staff.  The trial court granted summary judgment against Tripati and the Court of Appeals affirmed.  Six months later, Tripati filed a motion, which the trial court treated as a motion for relief from judgment under Rule 60(c).  In a signed minute entry, the trial court denied Tripati’s Rule 60(c) motion.  Tripati timely filed a motion for new trial pursuant to Rule 59(a), which the trial court also denied in an unsigned minute entry.  Tripati thereafter requested that the trial court issue a signed order denying his motion for new trial, which the trial court denied.  Tripati filed a notice of appeal, but requested that the Appeals court remand for a signed order denying his motion for new trial.  A motions panel of the Appeals Court denied that request.  Prior to considering the merits of Tripati’s appeal, the merits panel addressed whether Tripati needed a signed order denying his Rule 59(a) motion. The merits panel disagreed with the motions panel, concluding that Tripati did need a signed order.  Thus, the merits panel suspended the appeal to give Tripati an opportunity to obtain a signed order.  After Tripati was able to do so, this appeal followed.

First, the Appeals Court, explaining why it disagreed with the motions panel regarding the need for a signed order, held that it does not possess jurisdiction over an appeal from the denial of a motion for new trial until the trial court has issued a signed order reflecting the denial.  An unsigned minute entry is insufficient.  The Court reasoned that a motion for new trial ordinarily tolls the time for filing a notice of appeal until entry of an order granting or denying the motion, and A.R.C.A.P. 9(b) states that entry of an order only occurs when a signed written order is filed with the clerk of court.  Second, the Court held that a motion for new trial may challenge the denial of a Rule 60(c) motion, and that filing such a motion tolls the time for filing a notice of appeal.  Although Tripati’s notice of appeal was, therefore, timely, the Court ultimately affirmed the trial court’s denial of Tripati’s Rule 60(c) and 59(a) motions.

Gersten v. Gersten (11/17/2009):  Division One of the Arizona Court of Appeals Holds That (1) Family Law Procedure Rule 88 Only Requires a Successor Judge to Review Those Portions of the Record Relevant to the Successor Judge’s Rulings, (2) Items Purchased with Funds from the Federal Employees’ Compensation Act are Community Property, and (3) Arizona’s Support Statute No Longer Requires Custody or Guardianship as a Condition of Ordering Support.

After about 30 years of marriage, Charles Gersten (“Husband”) petitioned for divorce from Ethel Gersten (“Wife”).  Judge Gregory Martin presided over a five-day trial and received written closing arguments from the parties, but resigned from the court before ruling on the petition.  Judge Susan Brnovich replaced him and subsequently entered a decree dissolving the parties’ marriage and distributing their assets.

On appeal, Husband contended that Judge Brnovich failed to comply with Arizona Rule of Family Law Procedure 88, which requires a successor judge to certify that she is familiar with the record and that the proceedings can be completed without prejudice to the parties.  This rule, however, only requires a successor judge to review the portions of the record relevant to the new judge’s rulings.  In this case, the Court concluded that the portions of the record reviewed by Judge Brnovich – video recordings of the proceedings, the trial exhibits, the parties’ written closing arguments, and Husband’s proposed findings of facts and conclusions of law – were the only portions relevant to her rulings on family support and allocation of the parties’ property and debt.  Likewise, contrary to Husband’s argument, Judge Brnovich was not required to review the pre-trial proceedings to make her single evidentiary ruling.  On the other hand, the Court agreed with Husband that Judge Brnovich erred by failing to review the pre-trial record before ruling on the propriety of awarding attorneys’ fees because the controlling statute, A.R.S. § 25-324, requires an assessment of the parties’ conduct “throughout the proceedings.”   

Husband also appealed the portion of the property division allocating to Wife a substantial portion of a firearms collection purchased during their marriage.  Husband was disabled shortly after the parties were married and thereafter received federal workers’ compensation benefits.  Husband argued that because the firearms were purchased with his workers’ compensation benefits, which compensated for loss of personal well-being, the entire firearms collection was his separate property. The Court of Appeals rejected this argument, noting that federal workers’ compensation benefits compensate for benefits that are community assets: (1) lost wages, (2) loss of earning capacity, and (3) medical expenses.  As such, the firearms purchased with those benefits were community property subject to division. 

Husband also appealed the trial court’s denial of his request that Wife pay support for the parties’ adult, disabled son who resided with Husband.  Relying on Provinzano v. Provinzano, 116 Ariz. 571, 570 P.2d 513 (App. 1977), the trial court denied Husband’s request because he was not the son’s legal custodian or guardian.  The Court of Appeals reversed this part of the trial court’s order because the support statute, which was amended in 2004, no longer requires a custody or guardianship order before support may be awarded. 

Judge Timmer authored the opinion; Judges Brown and Norris concurred.

Ariz. Dep’t of Revenue v. Central Newspapers, Inc. (11/03/2009):  Arizona Court of Appeals Division One Holds That Federal Law Does Not Prohibit Arizona from Taxing a Non-Arizona Partnership’s Income Derived from Sales in Arizona When the Taxpayer Reporting the Income Has an Independent Nexus to Arizona.

Various subsidiary corporations of Central Newspapers, Inc., owned 13.5 percent of a general partnership based in Washington.  The partnership made sales to Arizona customers, but had no other business activities in Arizona.  Central Newspapers has other subsidiaries that are Arizona corporations.  Between 1995 and 1999, Central Newspapers and its subsidiaries (collectively “CNI”) filed Arizona consolidated corporate income tax returns.  Because CNI conducts multi-state business, Arizona law requires it to allocate and apportion its net income under Arizona’s Uniform Division of Income for Tax Purposes Act (“UDITPA”), A.R.S. §§ 43-1131 to -1150.  Apportionment is done according to a statutory formula under which a taxpayer’s Arizona sales, property, and payroll are compared to the taxpayer’s operations in all states. 

When apportioning its multi-state income, CNI did not include its subsidiaries’ share of the partnership’s Arizona sales in the numerator of the apportionment formula.   After audits of the five tax returns, the Arizona Department of Revenue (“Department”) concluded that the partnership’s Arizona sales should have been included in the formula’s numerator.  CNI protested and appealed to the Arizona State Board of Tax Appeals, which found in CNI’s favor.  The Department successfully appealed to the Arizona tax court and CNI appealed.

In a unanimous opinion, the Arizona Court of Appeals affirmed the Arizona tax court.  The Court explained that when multiple corporations file a “consolidated” return in Arizona, some of the constituent, or “affiliated,” corporations may have no connection to Arizona and would not report income to Arizona but for the parent corporation’s election to file a consolidated return.  In addition, when a group of affiliated corporations choose to file a single consolidated return, Arizona treats the group as a single taxpayer. Among the non-Arizona corporations that reported business income in CNI’s consolidated tax return were the subsidiaries with income from the Washington partnership, including income derived from the partnership’s sales to Arizona customers.

CNI argued that a federal law, 15 U.S.C. § 381, precluded Arizona from taxing the partnership income of the non-Arizona subsidiaries.  The federal law prevents a state from taxing income earned by foreign businesses whose only business activities in the state are “solicitation of sales.”  CNI asserted that the benefit of this federal restriction passed through from the Washington partnership to CNI, thus precluding Arizona from requiring CNI to include the partnership’s Arizona sales income in the numerator of the apportionment formula.

Rejecting CNI’s pass-through argument, the Court held that CNI had to include the partnership’s Arizona sales income in the numerator of the apportionment formula.  The Court reasoned that the federal law did not make the income itself tax exempt; rather, the law limits Arizona’s power to tax a business’s income if that business “does nothing more than solicit sales in Arizona.”  Thus, the relevant question is whether the taxpayer reporting the income has an “independent nexus” with Arizona, and not whether the income by itself derived only from interstate sales.  Because CNI was “independently subject to Arizona” taxing jurisdiction, the federal law does not shield CNI’s share of the Washington partnership’s income from Arizona taxing authority.

Judge Irvine authored the opinion; Judges Winthrop and Hall concurred.

ICA v. Old Rep./Liberty (11/3/2009): Arizona Court of Appeals Division One Holds That Workers’ Compensation Insurance Carriers Do Not Have  to Pay Taxes on the Difference Between a Full Premium and the Reduced Premium Charged for a Deductible Policy

Pursuant to A.R.S. § 23-961(J), workers’ compensation insurance carriers  are required to pay taxes on all premiums “collected or contracted for.” Because the premiums for insurance policies with a deductible are lower, insurance carriers have paid a lower amount of taxes on the premiums from policies with deductibles. The Industrial Commission of Arizona (the “ICA”) filed a declaratory judgment complaint against three insurance carriers, requesting that the superior court require the insurance carriers pay increased taxes for deductible insurance policies. The ICA argued that A.R.S. § 23-963.01(B) required that the insurance carriers be taxed for deductible policies as if the premiums were the same as policies having a deductible. The superior court dismissed the ICA’s complaint for failing to state a claim, and awarded attorneys’ fees for the defendant insurance carriers at the statutory hourly rate of seventy-five dollars. The ICA appealed the dismissal, and Liberty Insurance Corporation cross-appealed, requesting an award of attorneys’ fees higher than the statutory hourly rate. The Arizona Appeals Court affirmed the superior court, stating that “the difference between a full premium and the reduced premium charged for a deductible workers’ compensation insurance policy should not be taxed. . . .” The Court also affirmed the award of attorneys’ fees at the statutory rate, finding that the superior court did not abuse its discretion.

Judge Portley authored the opinion; Judges Johnsen and Barker concurred.

Zeagler v. Buckley (10/27/2009):  Arizona Court of Appeals Division Two Holds that Under A.R.S. § 12-341.01 a Trial Court Can Award the Prevailing Party in a Contract Action Attorney’s Fees Incurred During a Bankruptcy Proceeding that is Intertwined with a Contract Dispute.

Zeagler sued Buckley and others for breach of contract.  Thereafter, Buckley sought bankruptcy protection.  During the pendency of Buckley’s bankruptcy petition, Zeagler conducted discovery on matters relevant to the contract action.  Buckley eventually dismissed her bankruptcy petition, and the contract action resumed in state court.  Following a bench trial, the trial court entered judgment against Buckley.  Zeagler subsequently requested an award of his attorney’s fees, a portion of which Zeagler incurred during the bankruptcy.  Buckley objected, arguing that those fees should not be awarded because they related exclusively to the bankruptcy.  The trial court awarded some of the requested amount.  This appeal followed.

The Arizona Appeals Court held that the trial court correctly awarded the fees despite that they were incurred during a bankruptcy proceeding.  The Court explained that “when two claims are so intertwined as to be indistinguishable, a court has discretion to award attorney fees under § 12-341.01 even though the fees attributable to one of the causes of action would not be recoverable under this statute.”  Because the discovery Zeagler conducted during the bankruptcy proceeding was substantially intertwined with the contract dispute, the trial court did not abuse its discretion in awarding the fees incurred for that discovery.

Judge Espinosa authored the opinion; Judges Howard and Timmer concurred.

Sorokin v. Hon. Arnold/I.T. (10/27/2009): Arizona Court of Appeals Division One Holds That a Screening Agency Only Needs to Attach a County Attorney’s Recommendation to a Petition for Court-Ordered Evaluation if the County Attorney Recommends that No Further Screenings Are Warranted.

A health care screening agency filed a petition seeking court-ordered evaluation of a patient, alleging that the patient was a danger to himself and others. Among the statutory requirements for such petitions is A.R.S. § 36-521(G), which states that if a petition alleges the patient is a danger to others, the screening agency shall contact the county attorney for a review of the petition. The county attorney may make one of three recommendations:  1) “a criminal investigation is warranted;” 2) “the screening agency shall file the petition;” and 3) “no further proceedings are a warranted.”  A.R.S. § 36-521(G)(3) states that “[t]he screening agency shall include such recommendation with the petition if it decides to file the petition with the court.”

The health care screening agency did not attach the county attorney’s recommendation to its petition. The Judge Pro Tempore refused grant the petition, stating that the statutory requirement to attach the county attorney’s recommendation applied regardless of which of the three recommendations were made by the county attorney. The petitioner, the deputy director of the health care screening agency, brought a special action challenging the court’s interpretation of the statute, arguing that the requirement to attach the county attorney’s recommendation applied only when the county attorney recommended that no further proceedings were warranted. The Arizona Appeals Court granted relief to the petitioner, holding that a health care screening agency only needs to attach the county attorney’s recommendation when the county attorney recommends that no further proceedings are warranted.

Judge Timmer authored the opinion; Judges Norris and Orozco concurred.

Lake v. City of Phoenix (10/29/2009): Arizona Supreme Court Holds that Computer Metadata of Public Records That Are Stored in Electronic Format Is Subject to Disclosure Under Public Records Law.

A Phoenix police officer alleging employment discrimination submitted a public records request seeking his supervisor’s notes concerning the officer’s work performance.  After reviewing paper copies of documents produced, the officer requested metadata for certain documents.  Metadata contains information about electronic documents, such as creation dates and access dates.   The City of Phoenix denied the request, contending that metadata is not a public record. 

The police officer filed a special action in Superior Court pursuant to A.R.S. § 39-121.02.  After a hearing, the court denied jurisdiction.  Lake appealed to the Arizona Court of Appeals, which among other actions upheld the City’s refusal to produce the metadata requested.  Lake appealed.

The Arizona Supreme Court granted review and reversed the Court of Appeals decision with respect to the metadata issue.  The Court did not answer whether a public body is required under the state public records laws to maintain documents in their native electronic format.  It held, however, that when a public record is maintained in an electronic format, the metadata embedded in that document also constitutes a public record and is thus subject to disclosure.

The Supreme Court further noted that the Superior Court had erred by denying jurisdiction of the statutory special action.  So long as the special action complied with applicable procedural rules, the Superior Court lacked discretion to deny jurisdiction and was required to decide the case on its merits.

Justice Bales wrote the opinion for the unanimous Court.         

M.D.C. Holdings, Inc. v. Arizona Department of Revenue (10/6/09):  Arizona Court of Appeals Division One Holds that, When Apportioning Arizona Income, the Denominator of the Sales Factor Should Include Only the Net Gains from the Sales of Mortgages and Mortgage Servicing Rights.

MDC was the parent corporation of a group of companies engaged in the construction, sale, and financing of housing.  One of its subsidiaries, HomeAmerican, transferred its mortgages to private investors within fifteen to forty-five days of origination.  HomeAmerican also accumulated mortgage loans and sold them in packages to secondary market investors.  Moreover, MDC sold the right to service the mortgages, either at the time it sold the mortgage or at a later time.  MDC filed its 1996 income tax return on a unitary basis, including HomeAmerican’s income.  On its tax returns, MDC reported the net income from the sale of mortgages and servicing rights, not the gross amounts it received. 

Several years later, MDC sought to change the amount of its multistate income attributable to Arizona by including gross receipts from the sales of mortgages and servicing rights in the denominator of its sales factor.  MDC also argued that the sales of mortgages and servicing rights occurred outside of Arizona and should not have been included in the numerator of the sales factor.  After the Department of Revenue and the Arizona Board of Tax Appeals disallowed the changes, MDC filed an action in the Arizona Tax Court.  The tax court rule in favor of the Department of Revenue and this appeal followed.

The Arizona Appeals Court held that only the net proceeds from selling mortgages and servicing rights should be included in the denominator of the sales factor.  The Court explained that MDC’s primary purpose in selling the mortgages was to recover its principal.  Moreover, MDC included only the net proceeds from mortgage origination, and thus including the gross receipts from the sale of the same mortgages on the secondary market would artificially distort the sales factor by including the principal on only one side of the transaction. 

Lastly, the Appeals Court concluded that the numerator of the Arizona sales factor should not include the net proceeds from the sales of mortgages and servicing rights because MDC incurred the costs of performance in Colorado, not Arizona.  Unless Arizona expressly adopts the Multistate Tax Commission’s regulations, which would look to the physical location of the income producing property, A.R.S. § 43-1147 requires courts to look to where the cost of the income producing activity is incurred.

Judge Irvine authored the opinion; Judges Winthrop and Hall concurred.

Verma v. Stuhr (10/29/2009):  Arizona Court of Appeals Division One  Holds That Under A.R.S. § 33-422 a Buyer May Rescind a Land Purchase Contract If the Seller Has Not Made the Required Disclosures, Subject to the Affirmative Defenses of Waiver, Estoppel, and Laches.

Kuldip and Binu Verma (“Buyers”) entered into contracts with three separate sellers to purchase three parcels of land.  Each of the parcels was located in a federal flood easement, which the Buyers knew within the time allowed for due diligence under the purchase contracts.  The Buyers did not cancel the contracts upon learning of the federal flood easement.  The Buyers did attempt to rescind each of the contracts by invoking A.R.S. § 33-422, which requires a seller to furnish a written affidavit of disclosure to a buyer at least seven days before the property is transferred, specifies the particular disclosures the seller must make, and allows rescission by the buyer within five days of receiving the affidavit.  The trial court entered summary judgment in favor of the Buyers in each case. 

The Court of Appeals first rejected the Sellers’ arguments that A.R.S. § 33-422 did not apply to parcels larger than 160 acres and that the statute was unconstitutional because it was vague and impaired contract rights.  The Court then held that the statute’s disclosure requirements are mandatory.  An erroneous affidavit, however, does not render the seller noncompliant with the statute.  Instead, a buyer may invoke ordinary contract and tort remedies when the buyer is harmed by erroneous disclosures. 

With respect to the first seller, Tilley Farms, the Court concluded that although Tilley Farms had not complied with the statute because its affidavit did not include all of the required disclosures, the Buyers were estopped from rescinding the contract on that basis.  The Buyers’ representative had provided the outdated form to Tilley Farms, and the Buyers formally accepted Tilley Farms’ affidavit and continued with the deal after receiving it.  With respect to the second seller, the Court held that the Buyers had lost their statutory right to rescind the deal because they waited until after the transaction had closed before invoking the right.  Under the statute, the right to rescind is good only for five days after the seller furnishes the affidavit, and the affidavit must be furnished at least seven days before closing.  The right, therefore, does not survive closing.  The Court affirmed the summary judgment in favor of the Buyers on the third deal, however.  In that case, the Buyers had properly exercised the right within the required period.  The Court noted that, contrary to the claims of the Seller, the “right to rescission is not contingent upon the buyer’s prior knowledge or lack of knowledge about any aspect of the property, and its exercise need not be based on the content of any disclosure in the affidavit.”

Judge Swann authored the opinion; Judges Orozco and Irvine concurred.

Minajares v. State of Arizona (10/29/2009): Arizona Court of Appeals Division One Affirms Superior Court’s Correction of a Judgment that Had Already Been Affirmed on Appeal and Holds That the Normal Statutory Interest Rate on a Final Judgment Does Not Apply During the Course of an Appeal Where the Judgment Would be Paid Out of the State Risk Management Revolving Fund

The Appellant brought a tort action against the State of Arizona and others. A jury found in the Appellant’s favor. After the State had unsuccessfully appealed the judgment, it requested the superior court to correct the judgment by reducing the judgment interest rate during the appeal. The superior court granted the request and modified the judgment. The Appellant appealed the corrected judgment, arguing that the judgment could not be altered once the appellate court had rendered its decision. The Appellant also argued that the statute mandating a lower interest rate for payments made out of the state risk management fund did not apply.

The Arizona Appeals Court affirmed the superior court’s order. The Court held that the State’s request to correct the judgment was not barred by res judicata because the Court’s first decision and mandate did not address the question of the proper interest rate, and the parties had never litigated those issues. Because the superior court had not committed clear error, the Court also affirmed the superior court’s finding that the State had not waived its argument regarding the correct interest rate. The Appeals Court held that the superior court’s post-judgment relief was proper under Rule 60(c)(6) Ariz. R. Civ. P., which allows relief from a final judgment for “any other reason justifying relief from the operation of the judgment.” The Court rejected the Appellant’s argument that A.R.S. § 44-1201(A), which sets a default interest rate of ten percent on any indebtedness, was the controlling statute in this case. The Court held that the controlling statute was A.R.S. § 41-622(F), which states that interest on a judgment to be paid out of the State risk management revolving fund “shall accrue at the average yield offered by United States treasury bills during the course of the appeal. . . .”

Judge Norris dissented in part. She felt that the State had waived any argument that it was entitled to the lower interest rate because it had not raised the issue before the superior court entered final judgment in the first appeal.

Judge Weisberg authored the opinion; Judge Downie concurred; Judge Norris dissented in part and concurred in part.

Mousa v. Saba  (10/20/2009):  Arizona Court of Appeals Division One Holds That an Unlicensed Real Estate Broker May Not Recover for Performing Services That Require a Real Estate License, But May Recover in Unjust Enrichment for Non-Broker Services When the Contract Is Not Divisible.

In 2004, Plaintiff Samir Mousa contracted with Defendants Arizona Funds, LLC and its members (collectively “Arizona Funds”) to perform services in connection with the purchase, resale, and management of property in Arizona.  In 2005, Arizona Funds purchased property (“the Property”) through Mousa’s efforts, and later put the Property up for sale.  Arizona Funds granted Mousa a power of attorney to perform services in connection with selling the Property. Mousa managed the Property while it was for sale.  In 2006, Mousa filed suit alleging breach of contract, unjust enrichment, and other claims, claiming that he did not receive compensation for his services.  Arizona Funds moved to dismiss on the ground that the services for which Mousa was seeking compensation required a real estate salesperson’s or broker’s license under A.R.S. § 32-2152, which Mousa did not have.  The trial court granted this motion with respect to Mousa’s claim for a commission on the purchase of the Property, but denied it as to the remainder of his claims.  After discovery, Arizona Funds moved for summary judgment, again arguing that Mousa’s claims were barred because he lacked a real estate license.  The trial court granted the motion, and Mousa timely appealed.

The Arizona Appeals Court affirmed in part and reversed, vacated and remanded in part.  The Court began by explaining that a person engaging in activities requiring a real estate license may only file an action to recover compensation if the complaint alleges that the person was licensed at the time the claim arose.  A.R.S. § 32-2152(A).  Services performed in connection with the purchase or sale of real estate require a real estate license.  See A.R.S. § 32-2101(47).  Services conducted under a “valid power of attorney . . . used for a specific purpose in an isolated transaction and not as a method of conducting a real estate business” and property management services, do not require such a license.  A.R.S. § 32-2121(A)(2), (8). 

Applying these statutes, the Court held that Mousa could not recover for his services related to the purchase and sale of the Property under A.R.S. § 32-2152 because those services required him to have a license under A.R.S. § 32-2101(47).  The Court rejected Mousa’s argument that he was merely a “middleman,” explaining that the statutes do not except a “middleman” whose conduct otherwise requires a license.  The Court also rejected Mousa’s arguments that he did not hold himself out to be a broker and that it is common in Arizona to pay non-licensed real estate consultants, explaining that the plain meaning of the statutes barred recovery.

The Court also held that Mousa could recover for his claims based on his property management services under A.R.S. § 32-2121(A)(8), but not for services performed under the power of attorney because he was conducting a real estate business.  The Court further held that Mousa could not recover under a breach of contract theory because he was unable to prove that Arizona Funds’ promise to pay him for his non-broker services was separate from its promise to pay him for broker services, and the contract was therefore not severable.  Mousa could, however, recover in unjust enrichment.  See Butch Randolph & Assocs., Inc. v. Int’l Fid. Ins. Co., 212 Ariz. 550, 136 P.3d 232 (App. 2006).

Presiding Judge Johnsen authored the opinion; Judges Barker and Portley concurred.