AZAPP Blog

The Supreme Court adopted new rules for petitions for review and motions for reconsideration that replaced the page limitation with a word count.  In the civil rule, the amendment inadvertently left in a reference to the old “12 page” page limit.  The Supreme Court has issued a corrective order correcting this oversight.  So, as we thought previously, petitions for review and responses should not exceed 3500 words.  To review the corrective order, click here.

The Supreme Court issued an amended opinion in City of Phoenix v Hon. Fields/Perez

Mayer Unified School District v. Winkelman ( 2/13/2009):  Arizona Supreme Court Holds That Claims for Compensation for Easements Across School Trust Lands Are Barred by the Statute of Limitations

The Arizona-New Mexico Enabling Act of 1910 granted approximately ten million acres of land to the State of Arizona to be held in trust to support public schools.  From 1929 to 1967, the State Land Commissioner, who administers the trust, conveyed more than nine hundred easements to government entities for public use, but received no consideration.  In 1967, the United States Supreme Court held that the Enabling Act requires the trust to be compensated for such easements.  Lassen v. Ariz. ex rel. Ariz. Highway Dep’t, 385 U.S. 458, 469 & n.22 (1967).

On June 4, 2003, counsel for two school districts sent a letter to the State Land Commissioner regarding the nine hundred uncompensated easements.  After discussions failed to resolve the districts’ concerns, they filed suit on October 15, 2004.  Easement holders, who were joined as defendants, moved to dismiss the suit on various grounds.   

The parties to the action (and the Court) agreed that the suit was governed by a one-year statute of limitations.  See A.R.S. § 12-821.  The Court concluded that the districts’ claim accrued in 1967, when the United States Supreme Court’s decision in Lassen put beneficiaries of the land trust on constructive notice of claims regarding the easements.  The Court rejected the districts’ argument that the State Land Commissioner has a continuing duty to remedy the violation of the Enabling Act.  Thus, the Court concluded, the districts’ claim was barred by the statute of limitations. 

Vice Chief Justice Berch authored the opinion. 

Justice Hurwitz concurred in part with Justice Berch’s opinion and concurred in the result.  He objected, however, to the Court’s conclusion that the districts’ claim accrued when the U.S. Supreme Court’s issued Lassen.  According to Justice Hurwitz, that reasoning was unnecessary to the Court’s holding because the districts were clearly on notice of their claim when their attorney sent a letter to the State Land Commissioner on June 4, 2003.  Because they filed suit more than one year later, their claim was barred by the statute of limitations. 

Sharpe v. AHCCCS (2/3/2009): Arizona Court of Appeals Division One Holds Dentures Are Medically Necessary Under AHCCCS When Dentist Determines Patient Has Inability to Chew Food.

Due to the rampant decay of her teeth, Bridget Sharpe’s dentist requested that AHCCCS approve the removal of all of her teeth and provide her with dentures.  AHCCCS approved the removal of her teeth, but denied her dentures, because under AHCCCS regulations dentures are only “medically necessary” if there is a medical need beyond the inability to chew.  The Superior Court affirmed AHCCCS’s position and denied Sharpe dentures.

The Court of Appeals reversed and remanded with an order that Sharpe was entitled to dentures.  While the Court noted that it gives great weight to an agency’s interpretation of a statute, it also noted that an administrative rule cannot be inconsistent with or contrary to the statute it seeks to effectuate.   The Court also reaffirmed that AHCCCS’s rule-making authority did not allow it to eliminate coverage for an entire group of patients that would otherwise be covered.

The statute at issue, A.R.S. § 36-2907(A)(6), states that AHCCCS contractors “shall provide” “dentures ordered by a dentist” if they are “medically necessary.”  The AHCCCS director interpreted this statute by rule to require that a primary care provider, as opposed to a dentist acting alone, determine that dentures are necessary for the patient.  A.A.C. R9-22-201.  The Court held the statute specifically provided for “dentures ordered by a dentist.”  Therefore, the Court found AHCCCS’s rule requiring a primary care provider, as opposed to a dentist, to determine that dentures are necessary is invalid as inconsistent with § 36-2907(A)(6).

 In addition, the AHCCCS director promulgated another rule that dentures are only “medically necessary” if there is a medical need for the dentures beyond the inability to chew.  Medical Policy 310.  The Court found this rule to be absurd, as the plain purpose of providing dentures is to restore the ability to chew to those who have lost their teeth.  Accordingly, the Court also found this rule to be invalid as inconsistent with § 36-2907(A)(6). 

Judge Barker authored the opinion, with Presiding Judge Brown and Judge McVey concurring.

Duwyenie v. Moran (2/11/2009): Arizona Court of Appeals Division Two Holds that Arizona Superior Court Has Jurisdiction Over Child Custody Dispute Despite that Child Has Been Removed From State by Non-Custodial Parent and is the Subject of a Pending Custody Proceeding in an Out-of-State Tribal Court

Father and Mother had a child out of wedlock, living in Globe, Arizona.  Father was an enrolled member of the Rosebud Sioux Tribe in South Dakota; Mother was an enrolled member of the San Carlos Apache Tribe in Arizona.  Following the parents’ separation, Father removed the child without permission to South Dakota and initiated a custody proceeding in the Rosebud Sioux Tribal Court.  San Carlos Apache Tribe filed a petition for an intertribal judicial conference with the Rosebud Sioux, proposing that both tribes abstain from jurisdiction so that the custody dispute could proceed in Gila County Superior Court in Arizona.  The Rosebud Sioux Tribal Court initially dismissed the proceeding before it, but later reinstated the case.  In violation of a Rosebud Sioux Tribal Court order, Mother removed the child back to Arizona and initiated a custody proceeding in Gila County Superior Court.  The Superior Court accepted jurisdiction and entered a stipulated order determining paternity, child custody, access and child support.   Under the stipulated order, Father’s visitation rights were contingent on his posting a $20,000 bond.  Father appealed.

The Court of Appeals affirmed the Superior Court judgment, finding that the Arizona court had jurisdiction.  Under Arizona’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), A.R.S. §§ 25-1001 et seq., Arizona had jurisdiction over the custody dispute because the child had lived in Arizona before the child’s unauthorized removal by Father, who did not have legal custody.  To allow Father’s removal of the child to defeat jurisdiction in Arizona would defeat a key purpose of UCCJEA to deter child abductions.  Because Arizona was the child’s home state, the Rosebud Sioux Tribal Court did not have proper jurisdiction over the custody dispute, and thus the first-in-time filing and pendency of the matter in that tribal court did not defeat jurisdiction by the Arizona Superior Court. 

The Court of Appeals rejected as waived Father’s claim that the Superior Court abused its discretion by requiring Father to post a bond as a condition to exercising his visitation rights.  Because Father had stipulated to the entry of the order and did not contest that provision to the trial court, his appeal of that issue was waived.  The appellate court awarded Mother her reasonable attorneys’ fees and costs on appeal.

Judge Vásquez authored the opinion; Judges Eckerstrom and Brammer concurred.

Share AzAPP Posts!   You now have the capability to easily share AzApp posts with others.  By clicking on the “share this” link at the bottom of each post, you may share the post with an email recipient or share it via a social network.

McMurray v. Dream Catcher USA, Inc. (1/30/09): Division Two Holds That a Seller May Only Be a “Successful Party” Under the Purchaser Dwelling Actions Act After a Final Judgment.

In 2003, the McMurrays hired Dream Catcher USA to build them a home.  After several construction problems, the McMurrays filed a complaint with the Arizona Registrar of Contractors in 2006, alleging multiple construction defects.  Dream Catcher subsequently attempted to repair the defects, but apparently did not correct all of them.  Following these repairs, the McMurrays’ construction expert discovered additional defects, prompting the McMurrays to file an amended complaint with the Registrar.  In February 2007, the McMurrays filed suit under the Purchaser Dwelling Actions Act (“Act”), A.R.S. §§ 12-1361 to -1366.  Dream Catcher moved to dismiss the McMurrays’ claims because they did not satisfy the Act’s requirement to provide Dream Catcher with notice and an opportunity to repair.  The court dismissed the action without prejudice, and required each party to bear its own costs and fees.  Dream Catcher appealed the denial of its fees and the McMurrays’ cross-appealed the dismissal.

Judge Vázquez, writing for a unanimous court, affirmed the denial of Dream Catcher’s request for fees and dismissed the McMurrays’ cross-appeal for lack of jurisdiction.  Because the superior court dismissed the claims without prejudice, the Court held that the dismissal was not a final order and therefore the cross-appeal was not suitable for appellate jurisdiction. 

Turning to the question of Dream Catcher’s fees, the Court held that Dream Catcher was not entitled to fees because it was not the “successful party.”  The Act provides for an award of attorney fees to the successful party in a contested dwelling action.  The Act requires a home-seller to respond to a purchaser’s notice of defects by making an offer to repair, replace, or monetarily compensate for alleged defects.  If the purchaser rejects the seller’s offer, but “the judgment finally obtained” is less than the offer, then the Act defines the seller as the “successful party.”  The Court construed the Act to mean that a party can only become the “successful party” upon a final resolution of the purchaser’s claim.  Thus, because the court’s dismissal was not a final judgment, Dream Catcher could not be a “successful party” under the Act.

Judge Vázquez authored the opinion; Judges Eckerstrom and Brammer concurred.

League of Arizona Cities and Towns v. Martin ( 2/3/2009):  Arizona Supreme Court Holds That a Statutory Measure Requiring Incorporated Cities and Town to Deposit Money into the State General Fund Is Not an Appropriation That May Be Included in the General Appropriations Bill.

The general appropriations bill for the 2008-2009 fiscal year included a provision that required incorporated cities and towns to pay approximately $18 million dollars into the state general fund before the end of the fiscal year.  The League of Arizona Cities and Towns, on behalf of its members, raised with the Governor its concern that the provision violates Arizona Constitution Article 4, Part 2, Section 20, which limits what may be included in the general appropriations bill.  Discussions with the Governor did not resolve the issue, and the League brought a special action in the Arizona Supreme Court.  The Court accepted jurisdiction and granted relief, agreeing with the League that the provision is unconstitutional.

The Court held that the provision did not meet the definition of an “appropriation” for purposes of Article 4, Part 2, Section 20, which requires (1) a “certain sum”; (2) a “specified object”; and (3) the “authority to spend.”  The Court pointed to Rios v. Symington, 172 Ariz. 3, 833 P.2d 20 (1992), in which it concluded that a transfer from a special fund into the state general fund, which has the effect of reducing a prior appropriation for the special fund, is also an appropriation.  In this case, although the provision met the “certain sum” requirement, the legislature did not identify any prior appropriation set aside for cities and towns that would be reduced by the challenged provision. 

Before addressing the merits of the League’s challenge, the Court treated at some length the Governor’s argument that the Court should decline jurisdiction based on the equitable doctrine of laches.  It rejected her claim that a delay in filing an action could deprive the Court of jurisdiction, but conceded that an unreasonable and prejudicial delay might factor into the Court’s decision whether to take the case. 

The Court concluded that any delay in filing this suit was neither unreasonable nor prejudicial.  The four-month delay was not unreasonable because, the Court said, seven months remained in the fiscal year when the League filed suit, and five months remained as of the date of its opinion.  The Court also disagreed with the Governor’s claim that the four-month delay caused prejudice by imposing a burden on the state budget process.  The approximately $18 million to be paid into the state general fund represented only a small fraction of the state deficit, reportedly $1.6 billion as of the date of the Court’s opinion.  In addition, an alternative remedy is available to make up the short-fall caused by the Court’s rejection of the provision:  the legislature may reduce or eliminate as-yet-undistributed payments due to cities and towns under the Urban Revenue Sharing Fund, A.R.S. § 43-206.    

Vice Chief Justice Berch authored the opinion for a unanimous Court.

Justice Bales wrote a concurring opinion, in which Justice Hurwitz joined, explaining that the challenge by the cities and towns was not barred by laches because the legislature has sufficient time left in the fiscal year to adjust the budget in response to the Court’s opinion without affecting other recipients of appropriations.  Although a four-month filing delay might otherwise be unreasonable in the context of state budget measures, this case presents unique circumstances that allow the legislature to reach the same result while avoiding the constitutional pitfall identified by the League.  Adhering to the Arizona Constitution’s prohibition against including provisions other than “appropriations” in the general appropriations bill, although the same end can be achieved through separate measures, “not only honors the language of Article 4, Part 2, Section 20 of the constitution, but also promotes accountability and transparency in the state’s budgeting process.”

Tilley v. Delci  (01/29/2009):  Arizona Court of Appeals Division One Holds That Summary Judgment is Not a Sanction.  Less than a month before the statute of limitations expired, Jerry Tilley (“Tilley”) filed a negligence action against Benjamin Albert Delci (“Delci”) and Delci’s employer arising out of an automobile accident.  Delci answered and served an initial disclosure statement and written discovery requests on Tilley.  Tilley, however, failed to serve initial disclosures and failed to respond to Delci’s written discovery requests for more than ten months, despite numerous extensions and a court order requiring him to do so.  Ultimately, Delci filed a motion to dismiss for failure to prosecute and a motion for summary judgment.  The day before oral argument on Delci’s motions, Tilley served a disclosure statement and discovery responses on Delci.  The next day, Tilley filed a cursory response to the pending motions stating that he had submitted the required disclosures and discovery responses.  Tilley did not attach either his disclosure statement or his discovery responses to this filing. 

Following oral argument, the court denied Delci’s motion to dismiss but ordered Tilley to file a proper response to the motion for summary judgment within ten days.  In response to the court’s order, Tilley filed three documents, none of which constituted a proper response to Delci’s summary judgment motion.  Once again, the trial court ordered Tilley to file and serve a proper response to the motion for summary judgment within thirty days.  Tilley failed to comply.  Thus, following a second oral argument, the trial court granted Delci’s motion for summary judgment, finding that Tilley failed to submit anything that could create a genuine issue of material fact.  Tilley moved for reconsideration, attaching for the first time his discovery responses.  The superior court denied the motion for reconsideration and Tilley timely appealed.

On appeal, Tilley argued that the summary judgment entered against him constituted an inappropriate discovery sanction.  As such, Tilley claimed that the court should have conducted an evidentiary hearing to determine whether he or his counsel was at fault and should have considered less drastic sanctions.  The Court of Appeals rejected this argument as a conflation of a litigant’s discovery and disclosure obligations with the requirements of Rule 56.  Summary judgment is not a sanction, but a final judgment on the merits.  In this case, the trial court properly held that Tilley had failed to submit any evidence creating a genuine issue of material fact.  Without deciding whether the trial court was obligated to independently search the record for evidence of a material factual dispute, the Court held that no such search was possible here because the trial court simply had no evidence before it.  Finally, because summary judgment is a final judgment on the merits and not a discovery sanction, the Court rejected Tilley’s argument that the Arizona “savings statute” set forth in A.R.S. § 12-504 permitted him to re-file his Complaint despite the fact that the statute of limitations for Tilley’s claims had run.

Judge Downie authored the opinion; Presiding Judge Brown and Judge Barker concurred.

Pride of San Juan, Inc. v. Pratt (1/29/2009): Arizona Court of Appeals Division One Holds that a Principal is Vicariously Liable for the Negligence of an Independent Contractor Crop Duster Because Crop Dusting Remains an Inherently Dangerous Activity Despite Safety Improvements

Defendant hired an independent contractor for aerial application of pesticides to her broccoli field.  The pesticides contaminated crops on an adjacent field owned by Plaintiff, who sued Defendant and the crop duster.  Defendant moved for summary judgment on Plaintiff’s claim that Defendant was vicariously liable for the negligence of the crop duster, an independent contractor.  The trial court denied the motion on the ground that, pursuant to the Arizona Supreme Court’s decision in S.A. Gerrard Co., Inc. v. Fricker, 42 Ariz. 503 (1933), crop dusting is an inherently dangerous activity, such that vicarious liability applies.  On this same basis, the trial court later entered judgment for Plaintiff, ruling as a matter of law that Defendant was vicariously liable for the fault of the crop-duster independent contractor.  Defendant appealed.

The Court of Appeals affirmed.  An activity is inherently dangerous if (1) the risk of harm cannot be eliminated through the exercise of reasonable care; and (2) the risk is to the person, land or chattels of another.  If the risk is one that can be recognized in advance, the activity is inherently dangerous if the risk of harm is either inherent in the nature of the activity or is a risk normally expected in doing the task. 

The Court of Appeals reviewed expert witness evidence concerning safety improvements to crop-dusting practices.  The Court concluded that technological advances had lessened, but not eliminated, the inherent risks of damage from chemicals drifting to adjacent property.  Because the expert evidence relied upon for summary judgment briefing did not support a conclusion that the risks inherent in crop dusting can be eliminated with reasonable care, the Court concluded that crop dusting remains an inherently dangerous activity for purposes of vicarious liability.

Judge Norris drafted the opinion; Judges Kessler and Gemmill concurred.

Bilke v. State (1/29/2009):  Arizona Court of Appeals Division One Holds That an Individual Who Prevails in an Action Against the State or a Political Subdivision to Compel Compliance with a Statutory Obligation is Entitled to Recover Attorneys’ Fees Under A.R.S. § 12-2030(A), Even if the Action is Not Formally Entitled “Mandamus.” 

Plaintiffs, current and former inmates of the State of Arizona, filed suit to recover “minimum wage” for certain work performed while incarcerated.  Certain inmates prevailed, but judgment was entered in favor of the State against the other inmates.   Plaintiffs sought attorney’s fees, claiming that they were the prevailing parties because certain inmates were awarded recoveries on their minimum wage claim.  The trial court denied Plaintiffs’ request, and they appealed.

The Arizona Appeals Court reversed and remanded.  It determined that Plaintiffs were entitled to recover attorneys’ fees under A.R.S. 12 § 2030(A), explaining that a plaintiff is entitled to attorneys’ fees under that section if it “(1) prevailed on the merits (2) in a civil action (3) filed against the State or a political subdivision of the State (4) to compel a State officer or any officer of any political subdivision to perform a duty imposed by law.”  The Court further explained that an action need not be formally entitled “mandamus” in order for § 2030 to apply, despite the fact that the section is contained within an article pertaining to the legal remedy of mandamus and its heading includes the phrase “[m]andamus action,”.

The Court held that the Plaintiffs who prevailed were entitled to fees under § 12-2030 because they prevailed on the merits of a civil action against the State and political subdivisions to compel State officers to perform a duty imposed by law.  Plaintiffs sought to compel compliance with A.R.S. § 31-254(A) and § 41-1623(E), which required the State to pay inmates minimum wage under certain circumstances.  Because the trial court ruled that the State had failed to satisfy its statutorily-required obligation, the Plaintiffs’ action was not an ordinary action to recover damages for breach of contract or personal injuries, but instead was one to compel the State to perform a duty imposed by law.  

Judge Gemmill authored the opinion; Presiding Judge Norris concurred and Judge Kessler concurred.

Bogard v. Cannon & Wendt Electric Co., Inc. (1/27/09): Arizona Court of Appeals Division One Holds That Reversal on Appeal of A Summary Judgment Motion That is Limited to the Specific Issues Raised in the Motion is Not A General Reversal Without Instructions; On Remand, A New Trial Court Judge Has no Jurisdiction to Reconsider Rulings Not Addressed in the Appeal.  

After the Equal Employment Opportunity Commission (“EEOC”) found that reasonable cause existed to believe that Bogard had been discriminated against on the basis of her gender by her employer, Cannon & Wendt Electric Company (“C&W”), and had been retaliated against in violation of Title VII of the Civil Rights Act of 1964, Bogard filed suit against her employer for gender discrimination and retaliation.  She requested compensatory, punitive and emotional distress damages.

C&W moved for summary judgment on the discrimination and retaliation claims, and argued that Bogard should not be able to recover for emotional distress damages or punitive damages.  The trial court granted summary judgment on the discrimination claim, emotional distress damages claim and punitive damages claim.  The court determined that with respect to the discrimination claim, the EEOC determinations were not admissible evidence of alleged discrimination and could not be use to prove discrimination. The trial court denied summary judgment on the retaliation claim but found that Bogard had failed to mitigate her damages.  The remainder of the case was set for trial. Before the scheduled trial date, the trial court issued a minute entry granting summary judgment on the remaining retaliation claims. Bogard’s claims were dismissed with prejudice.

Bogard appealed.  On appeal, the Arizona Appeals Court vacated the summary judgment with respect to the discrimination claim and remanded to the trial court so that it could provide further explanation regarding its determination that the EEOC findings were inadmissible in accordance with Arizona Supreme Court Case, Shotwell v. Donahoe.  The Appeals Court reversed the summary judgment on the retaliation claim and remanded for further proceedings.

On remand, the case was reassigned to a new trial judge who set the case for trial.  C&W filed a motion in limine seeking exclusion of evidence and argument regarding emotional distress damages, punitive damages, damages that were not mitigated, and the EEOC’s reasonable cause determinations, arguing that the prior trial court ruling on damages became the law of the case when Bogard did not challenge it on appeal.  The trial court denied this motion, taking the position that the court of appeals opinion was one without instructions which therefore restored the parties to the same position as if the judgment had not been rendered. Upon conclusion of the jury trial, the trial court granted C&W’s motion for directed verdict with respect to punitive damages.  The jury returned a verdict in favor of Bogard.  Judgment was entered awarding Bogard $300,000 in mental pain and suffering and $10,000 in lost wages.  The judgment also included attorneys’ fees and costs.

C&W appealed, arguing that the trial court erred by (1) permitting evidence on Bogard’s emotional distress and unmitigated damages; (2) failing to follow the appeals court mandate re the EEOC reasonable cause determinations; and (3) awarding Bogard attorneys’ fees despite deficiencies in her fees application.

The Arizona Appeals Court affirmed the trial court’s ruling with regard to Bogard’s substantive claims and the award of attorneys’ fees but vacated the portion of the judgment awarding damages for mental pain and suffering, and modified the portion of the judgment awarding her lost wages to reflect the reduced amount.

With regard to the damages claim, the Court of Appeals explained that Bogard did not appeal the original trial court’s damages ruling and the appeals decision was limited to the discrimination and retaliation claims raised in the appeal.  The decision was not a general reversal without instructions as the second trial court believed.  Thus, when the original trial court entered judgment, the damages ruling became final and appealable, and the trial court on remand had no jurisdiction to review or change the judgment. 

With regard to the trial court’s ruling regarding the admissibility of the EEOC reasonable cause determinations, the Court of Appeals determined that the trial court had considered the EEOC’s determination within the framework set forth in Shotwell and therefore following the appellate court’s mandate. The Court explained that because the Shotwell decision was handed down after the original trial court’s ruling on the admissibility of the EEOC determinations, the trial court on remand was justified in reconsidering this ruling. 

The court of appeals found that the trial court did not abuse its discretion in awarding attorneys’ fees.

Judge Thompson drafted the opinion; Judges Johnsen and Hall concurred.