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arizona/1213795.json

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+"{\"id\": \"1213795\", \"name\": \"STATE COMPENSATION FUND and Waco Equipment Company, Inc., Petitioners, v. Dolores J. FOUGHTY, Respondent Claimant, The INDUSTRIAL COMMISSION of Arizona, Respondent\", \"name_abbreviation\": \"State Compensation Fund v. Foughty\", \"decision_date\": \"1970-11-19\", \"docket_number\": \"No. 1 CA-IC 472\", \"first_page\": \"381\", \"last_page\": \"386\", \"citations\": \"13 Ariz. App. 381\", \"volume\": \"13\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T17:42:21.290500+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONOFRIO, P. J., concurs.\", \"parties\": \"STATE COMPENSATION FUND and Waco Equipment Company, Inc., Petitioners, v. Dolores J. FOUGHTY, Respondent Claimant, The INDUSTRIAL COMMISSION of Arizona, Respondent.\", \"head_matter\": \"476 P.2d 902\\nSTATE COMPENSATION FUND and Waco Equipment Company, Inc., Petitioners, v. Dolores J. FOUGHTY, Respondent Claimant, The INDUSTRIAL COMMISSION of Arizona, Respondent.\\nNo. 1 CA-IC 472.\\nCourt of Appeals of Arizona, Division 1, Department A.\\nNov. 19, 1970.\\nRehearing Denied Dec. 10, 1970.\\nReview Denied Jan. 26, 1971.\\nRobert K. Park, Chief Counsel, State Compensation Fund, by Harlan J. Cross-man, Phoenix, for petitioners.\\nDonald L. Cross, Phoenix, Chief Counsel, The Industrial Commission of Arizona, for respondent.\\nWalter F. Kessler, Phoenix, for respondent-claimant.\", \"word_count\": \"2824\", \"char_count\": \"16772\", \"text\": \"STEVENS, Judge.\\nThe issue before this Court is whether misrepresentations as to religious beliefs, the falsity of which are discovered after a marriage ceremony, can be such an impediment to the marriage as to constitute grounds for annulment.\\nIn this opinion we will refer to Dolores J. Foughty as the widow or as the claimant. The claimant and Roy Foughty were joined in marriage on 18 June 1947. Two children were born of this union. Roy Foughty died on 31 August 1963 as the result of an industrial accident. An award was entered in favor of the claimant, who was then his surviving widow, and in favor of the minor children. This award was entered on 7 October 1963. A portion of the evidence submitted in support of the award established that the marriage was performed by a pastor of the Lutheran Church.\\nThe claimant and one Rhodes were the parties to a marriage ceremony performed on 8 February 1967 in the American Lutheran Church by a pastor of the church. The claimant promptly advised the Commission as to the marriage ceremony, the advice including a copy of the marriage certificate. On 9 March 1967 the Commission entered its supplemental award granting the claimant \\\"two years compensation in one sum\\\" pursuant to A.R.S. \\u00a7 23-1046 (A) (2).\\nThe record is silent as to the period of time that the claimant and Rhodes lived together as husband and wife. For a time, after the marriage ceremony, the compensation checks for the Foughty minor children were sent to the claimant's address in the State of Maryland. On 12 August 1968 the claimant requested that her address be changed to Glendale, Arizona.\\nThe claimant filed an action for annulment in the Superior Court for Maricopa County on 26 December 1968. Therein Rhodes was named as the defendant. The record before the Commission discloses service of process upon Rhodes and the entry of his default. The record discloses that the claimant was sworn and testified in support of her complaint on 3 April 1969 and that on that date a decree of annulment was signed. The decree was filed with the Clerk of the Superior Court the following day.\\nThereafter the claimant pursued the course of action before the Industrial Commission which was necessary to secure the restoration of her widow's benefits. By this time the procedural aspects of the matter were controlled by the amendments to the Workmen's Compensation Law which became effective 1 January 1969.\\nA hearing officer conducted the hearing. The claimant and her counsel were present. The Fund was represented. The Fund offered into evidence a certified copy of the records of the annulment proceedings in the Superior Court for Maricopa County. Based upon these records the Fund urged, and it now urges, that the decree of annulment was void as a matter of law and that the decree was therefore subject to collateral attack. The hearing officer ruled in favor of the claimant. The Fund sought a review by the Commission. The Commission affirmed the hearing officer and the matter was brought to this Court for review by certiorari.\\nThe Arizona statutes on the subject of annulment are concise and consist of but one section, A.R.S. \\u00a7 25-301, which we quote:\\n\\\"Superior courts may dissolve a marriage, and may adjudge a marriage to be null and void when the cause alleged constitutes an impediment rendering the marriage void.\\\" (Emphasis Added)\\nThe Arizona cases in relation to the right of a widow who has remarried to seek restoration of her widow's benefits after a decree of annulment are:\\nSouthern Pacific Company v. Industrial Commission of Arizona, 54 Ariz. 1, 91 P. 2d 700 (1939);\\nHallford v. Industrial Commission of Arizona, 63 Ariz. 40, 159 P.2d 305 (1945) ; and\\nState Compensation Fund v. Reed, 12 Ariz.App. 317, 470 P.2d 465 (1970) (review denied). We quote first from the Southern Pacific case:\\n\\\"We hold, therefore, that when a widow who is entitled to compensation under the Arizona law has remarried and received a lump settlement of the award, a legal annulment of the marriage will entitle her to have the original award reinstated upon tendering back the amount she has received as lump settlement.\\\" 54 Ariz. at page 6, 91 P.2d at 702.\\n*\\n\\\"Marriage is almost universally said by the authorities to be a 'civil contract,' but this language is perhaps, strictly speaking, inaccurate. It may more properly be defined as a status created by and based upon a civil contract. Hilton v. Roylance, 25 Utah 129, 69 P. 660, 58 L.R.A. 723, 95 Am.St.Rep. 821; 38 C.J. 1273, and cases cited. Since it is founded upon contract the question of whether the status actually exists depends upon the rules governing the making of the contract. Two of the essentials of a valid contract are that the parties have capacity to enter into it, and that they actually consent thereto and these principles apply to the contract upon which marriage is based. It, therefore, follows logically that if a marriage contract, though proper in form, is entered into by parties who have not the capacity to consent thereto or who, for some reason or another, have consented in form but not in fact, the marriage contract may be set aside like any other one, on the ground that the essentials are lacking.\\\" 54 Ariz. at page 8, 91 P.2d at 703.\\n*\\n\\\"It is also plain that the legislature then did not intend to use the word 'void' in the annulment statute in its strict sense, but rather meant 'voidable,' 54 Ariz. at page 11, 91 P.2d at 704.\\nIn the Hallford case the claimed ground for an annulment was fraud and misrep reservation as to the new husband's financial condition. In that case our Supreme Court stated:\\n\\\" Unless the judgment is void, it is binding upon the commission and may not be attacked collaterally. On the other hand, a void judgment is no judgment at all and may be attacked in a collateral proceeding. This court has repeatedly stated that three elements must occur or a judgment is void upon its face, and hence subject to be attacked at any time. These elements are (1) jurisdiction of the subject matter of the case, (2) of the persons involved in the litigation, and (3) to render the particular judgment given.\\\" 63 Ariz. at page 42, 159 P.2d at 306.\\n\\\"In the case at bar there is no dispute as to the facts. The defendant failed to appear or defend. The judgment discloses that it is based upon the facts alleged in the complaint.\\n\\n\\\"No facts are set out in the complaint or found in the judgment of any impediment which renders the marriage contract between the petitioner and Williams void.\\\" 63 Ariz. at page 43, 159 P.2d at 306.\\n\\\" here the fraud or misrepresentation alleged was not of such a character as goes to the very essence of the marriage relation so as to be in effect an impediment to the contract.\\\" 63 Ariz. at page 44, 159 P.2d at 307.\\nIn our Reed case the new husband secured the decree of annulment which was based upon allegations which the former widow admitted to be true. The basis of the new husband's complaint was that at the time of the marriage the former widow had no intention of accepting the responsibility for the care of the new husband's minor child. Thus she had that state of mind when she applied to the Industrial Commission for the two-year lump sum payment. In the opinion of the majority in the case now under consideration, the estoppel feature of the Reed case is of controlling significance. We do not have that feature in our current matter. In our current matter the former widow is the innocent party.\\nWhat then is the situation before us? We quote from two paragraphs of the complaint in annulment:\\n\\\"II\\n\\\"That on or about February 8, 1968, the parties entered into a purported marriage relationship in Arlington, Virginia; but no children have been born as issue of this marriage;\\n\\\"III\\n\\\"That sometime following the marriage ceremony it first became known to the Plaintiff that the Defendant professed atheistic principles, including the theory that he was GOD himself; that prior to the marriage ceremony, and during the courtship period, the Defendant represented himself to be a religious man, a Christian such as the Plaintiff, and a believer in the theological ideals of Christianity and the accepted Christian version of the Supreme Deity; that this and other material and gross misrepresentations on the part of the Defendant which first became known to the Plaintiff subsequent to the marriage ceremony were and are of such magnitude as to constitute an impediment to the purported marriage, to the extent that had such later-discovered facts been known to the Plaintiff such marriage ceremony would never have occurred, there being no meeting of the minds; that the said purported marriage is, therefore, a nullity and void ab initio;\\\"\\nThe decree of annulment, as a predicate therefor, recited, among other things:\\n\\\"Evidence having been presented to the Court in support of the Complaint, and good cause appearing therefor, *\\nIt will be remembered that the complaint in the Superior Court alleged \\\" that this and other material and gross misrepresentations on the part of the De fendant were and are of such magnitude as to constitute an impediment to the purported marriage to the extent that had such later-discovered facts been known to the Plaintiff such marriage ceremony would not have occurred, there being no meeting of the minds .\\\" Prior to the hearing the Claims Examiner Supervisor wrote to the claimant's attorney stating in part:\\n\\\"Before referring the matter for decision, it will be necessary that we be advised of the grounds on which the annulment was granted,\\\"\\nto which counsel replied,\\n\\\"Please be advised that the Superior Court, in granting the judgment of annulment, did not make a finding as to the specific grounds for granting the annulment. However we did allege and prove gross fraud and misrepresentation in the enticement into the marriage, which the defendant never intended to consummate.\\\"\\nAgain we note that the claimant was not called by the Fund at the hearing held by the hearing officer, she having been eligiible to be called had the Fund so desired. We do not know the nature and extent of the evidence which the claimant presented to the Superior Court in support of her allegations.\\nThe Fund had the burden of proof in its effort to sustain its collateral attack.\\nWe note that in the Southern Pacific case the Supreme Court pointed out that the basis upon which the decree of annulment was sought had one time been grounds for annulment and by an amendment of the statute those grounds had been removed as grounds for annulment and had been made grounds for a divorce. We do not find the same situation in the case before us. A.R.S. \\u00a7 25-312 which sets forth the grounds for divorce does not embrace the fact situation which we now have before us. We do not intend to imply, and we refrain from expressing an opinion on the proposition, that a statutory ground for divorce excludes that state of facts from being a valid basis for an annulment.\\nWe hold that the complaint in the Superior Court alleged facts upon which an annulment may be predicated. We have not been cited to cases which are expressly in point on either side of this issue. We hold that a person who entertains deep religious convictions and who goes through a marriage ceremony performed by a pastor of her church then believing that her new spouse is of like religious convictions and shortly thereafter learns the falsity thereof has established a sufficient absence of mutuality to render the marriage void, or at least voidable, by reason of the absence of a meeting of the minds.\\nThe award is affirmed.\\nDONOFRIO, P. J., concurs.\"}"

arizona/1213845.json

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+"{\"id\": \"1213845\", \"name\": \"Ronald WILTBANK, Appellant, v. LYMAN WATER COMPANY, Appellee\", \"name_abbreviation\": \"Wiltbank v. Lyman Water Co.\", \"decision_date\": \"1970-12-10\", \"docket_number\": \"No. 1 CA-CIV 1240\", \"first_page\": \"485\", \"last_page\": \"493\", \"citations\": \"13 Ariz. App. 485\", \"volume\": \"13\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T17:42:21.290500+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONOFRIO, P. J., and STEVENS, J., concur.\", \"parties\": \"Ronald WILTBANK, Appellant, v. LYMAN WATER COMPANY, Appellee.\", \"head_matter\": \"477 P.2d 771\\nRonald WILTBANK, Appellant, v. LYMAN WATER COMPANY, Appellee.\\nNo. 1 CA-CIV 1240.\\nCourt of Appeals of Arizona, Division 1, Department A.\\nDec. 10, 1970.\\nReliearing Denied Jan. 12, 1971.\\nReview Granted Feb. 16, 1971.\\nBlake, Colter & Flickinger, by James H. Colter, Phoenix, for appellant.\\nEarl Platt, St. Johns, for appellee.\", \"word_count\": \"4420\", \"char_count\": \"25404\", \"text\": \"FREY, Judge of the Superior Court.\\nThe appellant-plaintiff in this case Ronald Wiltbank brought an action in trespass for flooding of his lands caused by the appellee-defendant Lyman Water Company backing up water by means of their dam. Plaintiff sought an injunction to restrain the defendant water company from any further flooding of plaintiff's land and asks damages for ruin done to the land. After a successful motion for change of venue from Apache County, trial was held in Navajo County on the issues of the case. Plaintiff rested and moved for a directed verdict which was denied. Defendant moved for a directed verdict which was granted.\\nPlaintiff brings this appeal from an order denying a new trial. The appellee asserts in his brief that the appeal is not timely. The denial of a motion for new trial is an appealable order. A.R.S. \\u00a7 12-2101, subsec. F, par. 1. On June 10, 1969, the trial court entered a minute entry order denying the motion for new trial. On that date the order was not in appealable form. Rules 54(a) and 58(a), Rules of Civil Procedure, 16 A.R.S. The formal written order denying the motion for new trial was signed on July 23, 1969, and it was filed two days later. The order denying the motion for new trial was then in appealable form. The notice of appeal was filed September 8, 1969. We hold that the appeal was timely.\\nTo be determined is whether as a matter of law under the undisputed facts of the case, the directed verdict was properly granted. Before going into the legal issues of the case, a brief summary of the pertinent facts should be stated.\\nThe defendant's predecessors obtained a so called easement or right-of-way for a reservoir and water system upon public lands by filing a right-of-way map and an application with the Department of Interi- or in 1914. This was approved in the same year pursuant to provisions of the Act of March 3, 1891 (26 Stat. 1095) and Sec. 2 of the Act, May 11, 1898 (30 Stat. 404). In 1915 the newly constructed dam, seventy feet high, was washed away before proof of construction was accepted by the Department of the Interior. Reconstruction of the dam took several years and proof of construction was filed with and accepted by the Department of the Interior on May 20, 1923. The second dam was only sixty feet high, but the spillways remained at the same level as they were originally constructed, thus the dam would create a reservoir of 1535 acres in area and would hold 35,690 acre-feet of water as allowed by the so called reservoir right-of-way. In 1924 plaintiff's predecessor, Jesus Moreno, began to homestead the subject property and in 1928, he acquired a patent to the land allegedly damaged by floodings. The Deed to said land contained following language :\\n\\\"NOW KNOW YE, that this is, therefore, granted by the UNITED STATES unto the claimant the tract of land above described; TO HAVE AND TO HOLD the said tract of land, with the appurte nances thereof, unto the said claimant and to the heirs and assigns of the said claimant forever; subject to any vested and accrued water rights for mining, agricultural, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such water rights, as may be recognized and acknowledged by the local customs, laws and decisions of courts; and there is reserved from the lands hereby granted a right of way thereon for ditches or canals constructed by the authority of the United States.\\\"\\n\\u2022 In 1931 at the request of the Arizona State Engineer the spillway was lowered eight feet and widened. This lowering of the spillway reduced the reservoir capacity to 21,000 acre-feet. In 1948 and 1949 the dam was raised ten feet and the spillway was raised 6.8 feet; this allowed about 30,000 acre-feet to be stored. If the spillway were to be raised another 1.2 feet an additional 6,000 acre-feet could be stored in keeping with the so called easement.\\nThe defendant's position is that he holds a written \\\"easement\\\" to flood the subject land (over 29 acres). Defendant also claims that as to any land not covered by the easement but which is flooded, he has a prescriptive right going back for more than 10 years.\\nThe appellant in this case asks the court to determine the nature of appellee's easement on or claim to the appellant's land; to determine whether as a matter of law forfeiture or abandonment of rights is a jury question, whether there were issues to be decided from the evidence and to determine as a matter of law whether there was loss of water rights and whether the easement in question may he perpetuated by illegal means.\\nThe court can best resolve these issues by determining what rights plaintiff Wilt-bank has in or to the subject land and whether as a matter of law there was an abandonment or forfeiture of the easement.\\nThe questions presented involve United \\u2022States conveyances, and land transactions and therefore the issues are Federal in scope and we should look to decisions interpreting the applicable Federal laws and principles.\\nIn determining whether there is right to inundate appellant's land under the \\\"easement\\\" the court must- determine its nature. The defendant water company does not have an easement as the term is commonly understood; it has a limited fee which is a creation of the Congress of the United States. The limited fee has several definite characteristics. It is a right to use the surface of the land for a specific purpose.' Such land has definite boundaries which must be recorded with the Federal Government. The limited fee cannot be conveyed to be used for any purpose other than that specified in the grant and cannot be taken by adverse possession for any other purpose. If the limited fee is abandoned or forfeited it can only be by virtue of Federal statute or regulation and the fee reverts back to the United States. The limited fee owner has a superior right to the surface of the land against anyone else. The limited fee is used for railroads, pipelines, power plants, irrigation ditches and reservoirs, canals, etc.; for authority as to the foregoing conclusions, see 43 U. S.C.A. Sections 881 through 971, chapters 21 & 22.\\nThe concept of a limited fee such as was recognized when the U. S. Supreme Court stated in regard to a railway right-of-way: \\\"But, if it may not be insisted that the fee was granted, surely more than an ordinary easement was granted, \\u2014 one having the attributes of the fee, perpetuity and exclusive use and possession; also the remedies of the fee, and, like it, corporeal, not incorporeal, property.\\\" New Mexico v. United States Trust Co., (1898) 172 U.S. 171, 19 S.Ct. 128 at 133, 43 L.Ed. 407. The court in the New Mexico case, supra, goes on to point out that the mere fact the railroad does not use all its right-of-way or even a great part of it, does not amount to -abandonment so long as part of it is used. This , result comes about because the rail roud has superior possession to the surface of the limited fee in a permanent manner. The subservient owner has no right to the surface but may have a right to the minerals underground so long as it does not interfere with the limited fee holder.\\nIn the case at bar the appellee water company is entitled to have free unobstructed use of the subject land when it needs it for its proper use just as the railroad is entitled to have its right-of-way clear when it needs it. New Mexico v. United States Trust Co., cited above. Since the water company did not need plaintiff's land, the plaintiff was entitled to use it for a purpose not inconsistent with Lyman Water Company's superior right. Anything placed on the subject property is placed there at the owner's peril subject to the limited fee; i.e., Moreno's house.\\nThe United States Supreme Court has further stated that a railroad has a limited fee in effect so long as it uses the fee for the purpose intended. The railroad cannot alienate its limited fee in direct conflict with the purpose for which the fee was granted, and adverse possession cannot be used to acquire part of the right-of-way in direct conflict with congressional mandate. To allow adverse possession to apply would allow by indirection that which can't be done directly (sale of the right-of-way for other than railway purposes). Northern Pacific Railway Company v. Townsend, (1908) 190 U.S. 267, 23 S.Ct. 671, 47 L.Ed. 1044. New Mexico v. United States Trust Co., (1898) 172 U.S. 171, 19 S.Ct. 128, 43 L.Ed. 407.\\nIn the case of United States v. Michigan, (1904) 190 U.S. 379, 23 S.Ct. 742, 47 L.Ed. 1103, the State of Michigan built a canal for shipping and acquired a limited fee from the United States for that purpose only. The State acquired 750,000 acres of land to sell to pay for construction of the canal. The State used the surplus money for other purposes and the Supreme Court stated that the land was granted for a specific purpose. The Court analogized it to a trust. The Court said that if the money was put to any other' purpose the lands would revert. In the above case the court, construing an 1852 Act, states:\\n\\\"The act does not grant an absolute estate in fee simple in the land covered by this right of way. It was in effect a grant upon condition for a special purpose; that is, in trust for use for the purposes of a canal, and for no other. The state had no power to alien it and none to put it to any other use or purpose. Such a grant creates a trust, at least by implication.\\\" United States v. Michigan, 190 U.S. 379 at 398, 23 S.Ct. 742 at 748.\\nThe Court then goes on to liken this trust to a fee limited as stated in Northern P. R. Co. v. Townsend, cited supra.\\nIn 1915 the Supreme Court citing many of the above cited cases stated:\\n\\\"The right of way granted by this and similar acts is neither a mere easement, not a fee simple absolute, but a limited fee, made on an implied condition of reverter in the event that the company ceases to use or retain the land for the purposes for which it is granted, and carries with it the incidents and remedies usually attending the fee.\\\" Rio Grande Western Ry. v. Stringham (1915) 239 U.S. 44, 47, 36 S.Ct. 5 at 6, 60 L.Ed. 136.\\nIn 1921 the Supreme Court of the United States cited the above language as applying to canals, ditches and reservoirs. Kern River Co. v. United States (1921) 257 U.S. 147 at 152, 42 S.Ct. 60 at 62, 66 L.Ed. 175.\\nThe water rights involved in this case are not separate and distinct from the reservoir rights but are in fact part of the limited fee. The United States Government when it granted the reservoir rights which are part of the limited fee, granted the fee holder rights to enough water to .fill the reservoir to its maximum height and to keep it filled if possible. Other people with prior water rights of course can enforce them against the defendant. What the Department of the Interior did in this case was to grant Lyman Water Company's predecessor water rights enough to use the fee. There is direct evidence of this in Jesus Moreno patent deed or document which states that Moreno takes the land \\\" subject to any vested and accrued water rights for agricultural or other purposes and rights to ditches, and reservoirs used in connection with such water rights, as may be recognized and acknowledged by the local custom, laws and decisions of courts; \\\"\\nThis exception in the patent document clearly shows that the water rights and the reservoir were granted together in limited fee. To hold otherwise would bring about an absurd result, assuming the reservoir limited fee reverted back to the Federal Government. The limited fee would return to the government only in part since it would only get the right to the reservoir back, but no means to use it and the plaintiff could defeat Congress and the Department of the Interior by claiming the water rights were abandoned. In short the Federal Government would be denied its reverter of the whole thing it conveyed. The Department of the Interior conveyed the water rights as part of the limited fee subject to the customs, laws and decisions of courts at the time of vesting, and law later developed would have no effect upon the property rights of the limited fee so to defeat the purposes of Congress under the 1891 Act.\\nIn construing the rights of the plaintiff Ronald Wiltbank to the subject property, his rights can be no better than the original homesteader, Jesus Moreno. As we have previously pointed out, Moreno took the property \\\" subject to any vested and accrued water rights, for mining, agricultural, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such water rights as may be recognized and acknowledged by the local customs, laws and decisions of courts; and there is reserved from the lands hereby granted a right-of-way thereon for ditches or canals constructed by the authority of the United States.\\\" (emphasis supplied)\\nWe hold, therefore, that the reservoir and necessary water rights, making up the limited fee, granted to the reservoir owner and successors, were never conveyed to Jesus Moreno nor in any way limited by the grant to Moreno because they were excepted from the patent document. In addition there was a reservation of ditches and canals and inferentially reservoirs, United States v. Big Horn Land and Cattle Co. (8 Cir., 1927) 17 F.2d 357, to be built under the authority of the United States. This language in fact and at law precludes the plaintiff Wiltbank from claiming the surface of his land as against the defendant herein.\\n\\\"A reservation, strictly speaking, is a clause in a deed creating or reserving something out of the thing granted that was not in existence before, while an exception is something existing before as a part of the thing granted, and which is excepted from the operation of the conveyance. Donnell v. Otts (Tex.Civ.App.) 230 S.W. 864; Stanton v. [T.L.] Herbert & Sons, 141 Tenn. 440, 211 S.W. 353; 8 Ruling Case Law, \\u00a7 146 par. 1088.\\nTo express it differently, a 'reservation' in a deed creates a new condition, arising from the taking back of something out of that which is granted, and an 'exception' is of some part of the estate not granted at all. The former relates to a new thing or condition created, which had not previously existed independent of the fee, while the latter in effect relates to and recognizes previously existing conditions qualifying or limiting the title of the grantor in the thing.\\\" Elkins v. Townsend (D.C.1960) 182 F.Supp. 861 at 872, citing United Gas Public Service Co. v. Roy, La.App.1933, 147 So. 705, 706. The Elkins case presents a comprehensive discussion of the problem.\\nObviously' the Lyman Lake limited fee was excepted from the Patent, since the government recognizing it had no rights in contravention of this limited fee, could not convey what it did not have. But the United States further reserved future limited fees to the plaintiff's entire land so that it may be inundated with water if the need be.\\nThe problem with the appellant's theory of his case is that it has no foundation in Federal law and is in conflict with cited cases of the Supreme Court of the United States.\\nWe hold further than any forfeiture or abandonment is strictly an issue between the defendant Lyman Water Company as limited fee holder and the United States as grantor with reverter rights. If the United States has a right to enforce its reverter and does not do so, a volunteer has no right in equity to enforce it. Mr. Wiltbank is a volunteer as far as the legal relationship between the Government and the limited fee holder is concerned.\\nIt has been held that a failure to construct a required ditch, canal or reservoir within the legal time period does not ipso facto divest the limited fee holder of the fee and if there is to be forfeiture under an act of Congress, the forfeiture must be enforced in a judicial proceeding or by the provisions of an act of Congress. United States v. Whitney, (C.C., 1910) 176 F. 593, Carns v. Idaho-Iowa Lateral & Reservoir Co. (1921) 34 Idaho 330, 202 P. 1071. The Attorney General of the United States has the authority to enforce the reverter rights through forfeiture for non-use of the limited fee. Kern River Co. v. United States (1921) 257 U.S. 147, 42 S.Ct. 60, 66 L.Ed. 175; 43 U.S.C.A. 948.\\nUnder present day law no right-of-way is cancelled unless there is a specific administrative order to cancel, 43 C.F.R. Section 2234.1-5. But the right of reverter under this section is still vested in the United States.\\nThe appellant makes much of 43 C.F.R. 2234.1-4(b) (2) \\\"Non construction, abandonment or nonuse. Unless otherwise provided by law, rights-of-way are subject to cancellation by the authorized officer for failure to construct within the period allowed and for abandonment on non-use.\\\" The point, the appellant misses is that the section applies to rights-of-ways acquired under these regulations promulgated during the 1960's and cannot be applied retroactively back to 1920. Further the phrase, \\\"Unless otherwise provided by law \\\" protects the regulation against conflicts with acts of Congress and Supreme Court decisions.\\nThe appellant urges that he would proceed with the forfeiture but as pointed out before he has no standing concerning the limited fee which is conclusively binding on the United States by its approval of proof of construction and its acceptance by the Department of the Interior.\\nThe following quotation from Uhrig v. Crane Creek Irr. Dist. (1927) 44 Idaho 779, 260 P. 428, states a concise answer to the appellant's objections to the appellee's rights in Lyman Lake:\\n\\\"Appellant contends that the right conferred by the foregoing statute is one in present\\u00ed, subject to forfeiture for failure to complete the work within five years after location of the reservoir but to be effectual the default must be followed by a declaration of forfeiture which can only be made by an act of Congress or in an appropriate judicial proceeding. Carns v. Idaho-Iowa Lateral & Reservoir Co., 34 Idaho 330, 202 P. 1071; United States v. Whitney (C C) 176 F. 593.\\n\\\"The grant vested in defendants' predecessors the right of way for the reservoir, subject to the right of forfeiture for failure to complete the work within five years, and, although the work was not completed until long after the five years had passed (in fact, the five years had passed before plaintiff made his homestead filing), yet, no action having ever been taken to declare the forfeiture, their rights were never lost. The reser voir was approved March 8, 1923j and such approval, not attacked for fraud or imposition, is conclusive as against appellant. Hurst v. Idaho-Iowa Lateral & Reservoir Co., 42 Idaho 436, 246 P. 23. When the plaintiff received his patent he received no paramount right as against the defendants' claim; the \\\"land in question was conveyed to him subject to vested and accrued water rights and rights of way for ditches and reservoirs.\\\"\\n\\\"The act of granting the right of way for ditches and reservoirs contains many provisions that are analogous to those found in the Act of March 3, 1875, which is the act granting rights of way to railroads, and in construing the act of 1875 it has been uniformly held that the grant of the right of way for a railroad through public lands is made upon the implied condition that the right of way be used for railroad purposes only, and the right of the company are limited to such uses, and the purpose cannot be defeated by voluntary alienation of title or by abandoning the possession to an adverse claimant. Northern Pac. R. Co. v. uTownsend, 190 U.S. 267, 23 S.Ct. 671, 47 L.Ed. 1044; H. A. & L. D. Holland Co. v. N. P. R. Co. (C.C.A.9) 214 F. 920.\\\"\\nIn the present case the defendant's position is even stronger,' since the plaintiff's predecessor started homesteading after the Secretary of the Interior accepted the certificate of construction of the dam which would retain the amount of water called for by the limited fee.\\nThe appellant Wiltbank, makes much of the lowering of the spillway in 1931 and that the present spillway though higher than in 1931 is lower than the maximum limits called for in the fee. It must be remembered that the 1535 acre reservoir is not broken into units as far as Lyman Water Co., is concerned. It has one limited fee for the whole 1535 acres. Fences cannot affect defendant's rights, since the fee has the priority use of the surface. Obviously a reservoir is not going to be up to full capacity at all times since its purpose is to store water in times of great rainfall to be used later.\\nThe defendant water company did not abandon the limited fee on the subject property either because of lowered spillway or reduced rainfall. The defendant having one limited fee over all the 1535 acres, use of part of the area protects the right to use the other parts of the fee when he uses part of it continuously. New Mexico v. United States Trust Co., 172 U.S. 171, 19 S.Ct. 128, 43 L.Ed. 407.\\nAppellant's argument that the \\\"easement\\\" was abandoned or forfeited to him as it concerns his property has no basis in law, because his use would be in direct conflict with the idea that the limited fee cannot be alienated for a different purpose or taken by adverse possession.\\nThe appellant further argues that in 1949 the appellee water company raised the spillways illegally and therefore cannot claim the additional water level. The whole area in the limited fee is presumed necessary for the purpose for which use of the land was granted. Northern Pacific R. Co. v. Townsend, supra. We have stated that there is one limited fee of 1535 acres and that the fee holder need not use the whole thing at one time, but may from time to time use more or less of the area, therefore the illegality, if any, regarding the manner of construction of the dam or spillways has no effect one way or the other on the right to use the 1535 acre reservoir. New Mexico v. United States Trust Co., 172 U.S. 171, 19 S.Ct. 128, 43 L.Ed. 407. The State cannot take away the limited fee from the fee holder and thereby wipe out the Federal Government's revert-er, since the limited fee is a creation of Congress. Kern River Co. v. United States, (1921) 257 U.S. 147, 42 S.Ct. 60, 66 L.Ed. 175.\\nThe plaintiff cites Gila Water Co. v. Green, 29 Ariz. 304, 241 P. 307 (1925) as some authority that there can be a forfeiture to a land patent holder and he infers that this case infers that the government need not be a party. A close reading of the briefs, abstract of record and transcript in the Green case all indicate several material differences in the fact situation as compared to the present case. But, since the Supreme Court of Arizona had to determine the case on the facts in that case and the law presented, except from Whitney v. United States, no other case cited herein and decided before 1925 was cited to the Arizona Supreme Court in the Green case. Had either party cited these cases the decision would probably have been different.\\nThe appellant cites Hurst v. Idaho-Iowa Lateral and Reservoir Co., (1921) 34 Idaho 342, 202 P. 1068 to support his position on reversion and forfeiture. However, in a later case involving the same parties and fact situation, the Idaho Supreme Court held that the patent owner could not seek a forfeiture except for fraud or imposition, once the Secretary of the Interior accepts the application and map subject to the condition subsequent. Hurst v. Idaho-Iowa Lateral Reservoir Co., (1926) 42 Idaho 436, 246 P. 23. Therefore it follows that once the construction is accepted the patentee would be further barred from raising an issue of forfeiture.\\nSince the Federal Courts will not grant a forfeiture except by provision of Congress and forfeitures are not favored when against public interest, and there being no reason for forfeiture in this present case, this issue of the plaintiff has, as a matter of law, no basis in this case.\\nFurther, the only forfeitures which seem to have been sought in the Federal Courts are for noncompletion of construction or no construction ever started on reservoir sites. Kern River Co. v. United States, cited supra. United States v. Beaver Irr. Land & Power Co. (8 Cir., 1927) 21 F.2d 1001. Union Land & Stock Co. v. United States (9 Cir., 1919) 257 F. 635; United States v. Big Horn Land & Cattle Co. (8 Cir., 1927) 17 F.2d 357. Based on the discussion above and the fact that holdings of the United States Supreme Court and inferior Federal Courts are binding on this court, and since, the present case concerns federally granted rights in land, creations of Congress, this court holds that the trial judge was correct in granting the defendant a directed verdict at the close of the plaintiff's case.\\nThe Judgment is affirmed.\\nDONOFRIO, P. J., and STEVENS, J., concur.\\nNOTE: The Honorable JAMES DUKE CAMERON having requested that he be relieved from the consideration of this appeal, the Honorable WILLIAM C. FREY, Judge of the Superior Court, was called to sit in his stead.\"}"

arizona/1216875.json

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+"{\"id\": \"1216875\", \"name\": \"Alan T. O'BRIEN, Appellant, v. SCOTTSDALE DISCOUNT CORPORATION and Schenectady Discount Corporation, Appellees\", \"name_abbreviation\": \"O'Brien v. Scottsdale Discount Corp.\", \"decision_date\": \"1971-03-18\", \"docket_number\": \"No. 2 CA-CIV 932\", \"first_page\": \"224\", \"last_page\": \"228\", \"citations\": \"14 Ariz. App. 224\", \"volume\": \"14\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:36:09.296548+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Alan T. O\\u2019BRIEN, Appellant, v. SCOTTSDALE DISCOUNT CORPORATION and Schenectady Discount Corporation, Appellees.\", \"head_matter\": \"482 P.2d 473\\nAlan T. O\\u2019BRIEN, Appellant, v. SCOTTSDALE DISCOUNT CORPORATION and Schenectady Discount Corporation, Appellees.\\nNo. 2 CA-CIV 932.\\nCourt of Appeals of Arizona, Division 2.\\nMarch 18, 1971.\\nRehearing Denied April 20, 1971.\\nStuart Herzog, Tucson, for appellant.\\n\\u25a0 Shimmel, Hill & Bishop, P. C., by James B. Rolle III, Phoenix, for appellees.\", \"word_count\": \"1906\", \"char_count\": \"11448\", \"text\": \"KRUCKER, Chief Judge.\\nThis appeal is from the granting of a summary judgment by the trial court in favor of the appellees (defendants below) on appellees' motion. The parties will hereinafter be referred to as they appeared below; that is, plaintiff and defendants. The basis upon which the trial court ruled was that it found that the complaint filed in the instant case was a cause of action which should have been presented by a counterclaim in an earlier proceeding, filed in 1966 in Maricopa County by the defendants against the plaintiff, and was therefore barred as res judicata as a compulsory counterclaim under Rule 13(a), as amended, Rules of Civil Procedure, 16 A. R.S. The Maricopa County proceeding will hereinafter be referred to as the earlier case; the subject of this appeal, as the instant case.\\nThe factual background of the situation at bar is that the plaintiff was' in the mobile home sales business in 1964 and 1965 in Tucson, Arizona. The defendants financed certain aspects of this operation, including floor plan financing of, the plaintiff's merchandise before he sold it and retail financing by buying the retail installment contracts the plaintiff obtained upon sales of mobile homes. The plaintiff signed personal guarantees of the retail installment contracts to the defendants.\\nThe earlier action was filed by the defendant Scottsdale in Maricopa County against the plaintiff for, among other things, the plaintiff's failure to pay a balance due ($4,911) on two inventory trust receipts, given to defendant Scottsdale by the plaintiff as a part of the floor plan financing referred to above. This earlier action was filed October 11, 1966, and the answer was filed November 2, 1966. Judgment for the amount of $4,911 was entered against plaintiff on June 26, 1969, after a trial without a jury on June 17, 1969; interest on this amount was granted from October 11, 1966.\\nThe instant complaint alleges, among other things, that the defendants failed to pay approximately $27,000 due plaintiff under retail installment contracts assigned to Scottsdale; that plaintiff had guaranteed certain retail installment contracts assigned to Scottsdale in return for Scottsdale's agreement to provide accurate credit evaluations, to collect the contracts diligently, and to preserve properly all rights under the contracts (defendants deny agreeing to these three alleged agreements) ; that the defendants hold certain funds as security for these guarantees, and since defendants have breached the agreements (which they deny making), these funds should be released to the plaintiff, the guarantees can-celled and punitive damages should be awarded plaintiff; that defendants are trustees of these funds for the benefit of the plaintiff and have breached their fiduciary relationship by using the funds to their (the defendants') benefit to the end that a court-administered trust of the funds should be set up and punitive damages should be awarded to plaintiff; and, finally, that improper handling of repossessions and resales by defendants occurred and the profits from these resales are due the plaintiff. The plaintiff served interrogatories on the defendants and took depositions of the president of Schenectady and the manager of the Scottsdale office of Schenectady, which was doing business as Scottsdale Discount.\\nThe defendants filed a motion for summary judgment, supported by the affidavit of the president of Schenectady. Defendants attached as exhibits to this affidavit, and incorporated by reference, the complaint, answer and judgment in the earlier case. An opposition, supported by the affidavit of plaintiff, was filed by the plaintiff.\\nThe trial court granted summary judgment on the basis that all the matters in the complaint in the instant case were compulsory counterclaims under Rule 13(a), supra, in the earlier Maricopa County proceeding (as urged in defendants' motion) and, therefore, should have been asserted by plaintiff in that action, stating that the doctrine of res judicata was applicable and citing Biaett v. Phoenix Title & Trust Co., 70 Ariz. 164, 217 P.2d 923 (1950), and Technical Air Products, Inc. v. Sheridan Gray, Inc., 103 Ariz. 450, 445 P.2d 426 (1968). The trial court expressly found that:\\n\\\" the plaintiff's claims arose out of the same transaction as were [sic] involved in Maricopa County Cause Number 190032, that they did not require the presence of the parties who are not or could not be before the Court, that they were not the subject of any other pending action, and that they were in existence at the time of the commencement of Cause Number 190032 in the Superior Court of Arizona, Maricopa County.\\\"\\nThe only question here is whether or not the record before us shows the complaint in the instant action consists of matters which were compusory counterclaims, which should have been raised in the earlier case. If so, we must affirm the trial court's granting of summary judgment against the plaintiff.\\nRule 13(a), supra, reads as follows:\\n\\\"Compulsory counterclaims. A pleading shall state as a counterclaim any claim which at any [sic] time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its ad judication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.\\\"\\nThe policy behind this rule is the avoidance of \\\"multiplicity of actions and to achieve resolution in a single lawsuit of all disputes arising out of common matters.\\\" Southern Construction Co. Inc. v. Pickard, 371 U.S. 57, 83 S.Ct. 108, 9 L.Ed.2d 31 (1962) ; Biaett v. Phoenix Title & Trust Co., supra.\\nThe plaintiff urges that the trial court erred for a number of reasons in ruling that the complaint in the case at bar was the subject of a compulsory counterclaim under Rule 13(a), supra, but, in view of the disposition we make of this appeal, we need not consider these contentions. Suffice it to say that the record here fairly supports all of the findings of the trial court, save one. This is to say that the plaintiff's claims here appear to have arisen out of the same transaction as the matters in the earlier case and that there seems to be a logical relationship between the matters in the earlier case and the instant case. Technical Air Products, Inc. v. Sheridan-Gray, Inc., supra. Further, there is no problem or dispute here as to either the presence or jurisdiction of parties and none as to the pendency of another action.\\nThe deficiency in the record in the case before us is the absence of any indication as to the maturity of the plaintiff's claims at the time of the earlier proceeding. The general rule is that to be the subject of the compulsory counterclaim rules a claim must be mature. Local 499, IBEW v. Iowa Power & Light Co., 224 F.Supp. 731 (S.D.Iowa 1964) ; 1A Barron & Holtzoff, Federal Practice and Procedure \\u00a7 394 (Wright Ed. 1960) ; 3 Moore's Federal Practice para. 13.14 (2d ed. 1968). The most similar case we have found to the one before us is New Britain Machine Co. v. Yeo, 358 F.2d 397 (6th Cir. 1966). In that case the court held that even a partially matured claim was subject to foreclosure under the compusory counterclaim rule since any part of the claim which was matured at the time of the earlier case could have been filed as a counterclaim, and then supplemental pleadings under Federal Rules of Civil Procedure 13(e) could be filed as the claims fully matured. The problem before us is the lack of anything from which it can be determined that any or all of the claims presented in the case at bar had matured at the time the plaintiff here served his pleading in the earlier case. In fact, the record here does not even reveal the date on which the plaintiff effected such service. Upon determination of that date, the trial court must undertake to determine the maturity of the plaintiff's claims in the instant case at such time. Of course, if part or all of any of these separate claims had matured, then each respective claim (which had in part or in whole matured) would be foreclosed under the authority of the New Britain Machine case.\\nIn granting a' motion for sum.mary judgment, the trial court must determine that no genuine issue as to any material fact exists. Rule 56(c), as amended, Rules of Civil Procedure, 16 A.R.S.; Hoopes v. Lamb, 102 Ariz. 335, 429 P.2d 447 (1967). In ruling on a motion for . summary judgment, the trial court may look to the pleadings, depositions, and affidavits. Knight v. DeMarcus, 102 Ariz. 105, 425 P.2d 837 (1967). We have looked to these portions of the record before us and conclude that the absence of either pleading, deposition, affidavit or answers to interrogatories, with regard to the maturity of .the plaintiff's claims, in relation to the time of service of the pleading of the instant plaintiff in the earlier case, results in the existence of a genuine issue of material fact. If there is the slightest doubt as' to whether there is an issue of fact, .this doubt should be resolved in favor of a trial on the merits. Rodgers v. Ray, 10 Ariz.App. 119, 457 P.2d 281 (1969). Such a doubt, at least, exists here.\\nReversed and remanded for proceedings not inconsistent with this opinion.\\n. HATHAWAY and HOWARD, JJ\\\" concur.\\n. Scottsdale Discount Corporation was a wholly-owned subsidiary of Sehneetady Discount Corporation at the time of the original financial dealings here, but Scottsdale has since dissolved and its assets were acquired by Sehneetady, which is a New York corporation qualified to do business in Arizona. That is, plaintiff made the agreements described herein with - Scottsdale, but Sehneetady held them at ' the time of the instant action.\\n. Certain class action counts, not material to this appeal, were dismissed by the trial court.\\n. Dealer Reserve and Special Holdback accounts.\\n. Clearly, the word \\\"any\\\", where it appears the second time in this rule, should be \\\"the\\\". This appears to be a codifier's mistake and will be treated as such by this court. Otherwise, this rule is the same as Federal Rules of Civil Procedure 13(a).\\n. While the question does not appear to have been passed upon previously, it would seem that elementary fairness would limit the application of tbe compulsory counterclaim rule to claims which were in part or in whole matured, and the maturity of which either was known, should have been known, or was fairly discoverable, by the pleader against whom this rule is to be applied (plaintiff here) on the date of the service of this pleader's pleading in the earlier action. We would so limit any application of this rule.\"}"

arizona/1216911.json

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+"{\"id\": \"1216911\", \"name\": \"UNIVERSAL UNDERWRITERS INSURANCE COMPANY, a corporation, Appellant, v. ALLSTATE INSURANCE COMPANY, a corporation, Appellee\", \"name_abbreviation\": \"Universal Underwriters Insurance v. Allstate Insurance\", \"decision_date\": \"1971-03-31\", \"docket_number\": \"No. 1 CA-CIV 1319\", \"first_page\": \"304\", \"last_page\": \"305\", \"citations\": \"14 Ariz. App. 304\", \"volume\": \"14\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:36:09.296548+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNIVERSAL UNDERWRITERS INSURANCE COMPANY, a corporation, Appellant, v. ALLSTATE INSURANCE COMPANY, a corporation, Appellee.\", \"head_matter\": \"483 P.2d 45\\nUNIVERSAL UNDERWRITERS INSURANCE COMPANY, a corporation, Appellant, v. ALLSTATE INSURANCE COMPANY, a corporation, Appellee.\\nNo. 1 CA-CIV 1319.\\nCourt of Appeals of Arizona, Division 1, Department B.\\nMarch 31, 1971.\\nRehearing Denied April 16, 1971.\\nReview Denied May 19, 1971.\\nGust, Rosenfeld & Divelbess by Richard A. Segal, Phoenix, for appellant.\\nMoore, Romley, Kaplan, Robbins & Green by Craig R. Kepner, Phoenix, for appellee.\", \"word_count\": \"957\", \"char_count\": \"6052\", \"text\": \"EUBANK, Judge.\\nThis is a controversy between an insurer of \\\"garage operations\\\" and an automobile liability insurer of a customer of the garage over which had the primary duty to defend against and satisfy a personal injury claim which arose when an employee of the garage drove the customer's car into the injured person, who was on a public right of way adjacent to the garage. An \\\"excess\\\" insurance clause applicable to the garage coverage and the decision of our Supreme Court in Universal Underwriters Ins. Co. v. Dairyland Mutual Ins. Co., 102 Ariz. 518, 433 P.2d 966 (1968), dictate our holding that the customer's automobile liability insurer had the primary liability.\\nThe case was submitted to the trial court on stipulated facts. Briefly, the instrumentality of injury was an automobile owned by A. G. Bingham. Bingham left the car with Rudolph Chevrolet for repairs. One Lester Geisler, an employee of Rudolph Chevrolet, who was operating the car with Bingham's consent and \\\"for the purpose of garage operations\\\", drove it into the claimant, Jeanette Trader, who was on a public right-of-way next to the garage.\\nAt the time of the accident the Bingham automobile was an insured vehicle under an owner's policy of automobile liability insurance issued to Bingham by the appellee Allstate Insurance Company. There was also in force at the time of the accident a \\\"Comprehensive Liability Policy (General Automobile)\\\" issued to Rudolph Chevrolet by the appellant, Universal Underwriters Insurance Company. This latter policy covered, among other risks, injuries resulting from the use of an automobile in \\\"garage operations\\\". In an \\\"Other Insurance\\\" clause, however, the policy provides that\\n\\\" the insurance under this policy with respect to loss arising out of the use of any non-owned automobile shall be excess insurance over any other valid and collectible insurance.\\\"\\nJeanette Trader brought an action against Bingham, Rudolph Chevrolet, its employee Geisler, and others, to recover for her injuries. The appellant Universal Underwriters assumed defense of the claim after the appellee Allstate declined to accept that responsibility. Jeanette Trader eventually recovered judgment in the amount of $6,284.04 against Rudolph Chevrolet and Lester Geisler, which judgment was satisfied by Universal Underwriters. Universal Underwriters seeks by this litigation to vindicate its excess coverage clause and shift the loss to Allstate as the primarily liable insurer. On cross motions for summary judgment, the trial judge rejected Universal Underwriters' position and entered judgment in favor of Allstate.\\nIn our view, the substantially identical case of Universal Underwriters Ins. Co. v. Dairyland Mutual Ins. Co., supra, hereinafter referred to as \\\"the cited case\\\", is controlling in favor of Universal Underwriters' position here. Here, as in the cited case, the controversy was between a garage insurer and a customer's carrier. Here, as in the cited case, the policy insuring the garage had an excess clause. The Supreme Court in the cited case made reference to the mandatory coverage which the customer's policy granted the garage employee as a permissive user under the line of cases commencing with Jenkins v. Mayflower Insurance Exchange, 93 Ariz. 287, 380 P.2d 145 (1963), and upheld the right of the garage insurer to limit its exposure by means of an excess clause on the basis of fundamental principles of contract law set forth in both the cited case and in the simultaneously rendered decision in Dairyland Mutual Ins. Co. v. Andersen, 102 Ariz. 515, 433 P.2d 963 (1967). The latter case is also closely identifiable to the case at bar.\\nIn arriving at its decision in the cited case, the Supreme Court noted that there was no conflict between the excess clause in the Universal Underwriters policy, there under consideration, and any valid clause in the customer's policy. In that connection, the present appellee, Allstate, concedes that a clause in its policy purporting to exclude coverage for \\\"automobile business\\\" use such as servicing and repairing is invalid under the holding in Jenkins v. Mayflower Insurance Exchange, supra.\\nAppellee argues that the cited case is inapplicable because, although the claimant was on a public way, the accident occurred on the garage \\\"premises\\\" as defined in the Universal Underwriters policy now before us. We fail to see that this circumstance renders the excess clause inoperative. The rider insuring \\\"garage operations\\\" is expressly made subject to \\\" all the terms and conditions of the policy \\\", and in the absence of manifest contrary intent the entire policy is to be construed in a manner which will give effect to all of its provisions. 1 Couch on Insurance 2d, \\u00a7 15.30, 15.43, pp. 701, 726 (1959). We find nothing in any provision called to our attention which deprives the excess clause of its effect.\\nAppellee argues that it was the obvious intent of the Universal Underwriters policy insuring \\\"garage operations\\\" to cover the accident in question, and that it was manifestly not the intent of the customer's policy to cover such accidents. The short answer is that the much-reaffirmed holding of the Jenkins case operates without regard to a motor vehicle insurer's intent, and that our Supreme Court has refused to \\\"en-graft exceptions\\\" upon the Jenkins rule. Dairyland Mutual Ins. Co. v. Andersen, supra.\\nThere being no factual matters in dispute, the judgment of the Superior Court is reversed and the cause is remanded for entry of judgment in favor of appellant.\\nJACOBSON, P. J., and HAIRE, J., concur.\"}"

arizona/1217983.json

@@ -0,0 +1 @@
+"{\"id\": \"1217983\", \"name\": \"The STATE of Arizona, Appellee, v. Reynaldo R. MARTINEZ, Appellant\", \"name_abbreviation\": \"State v. Martinez\", \"decision_date\": \"1973-04-05\", \"docket_number\": \"No. 1 CA-CR 495\", \"first_page\": \"417\", \"last_page\": \"418\", \"citations\": \"19 Ariz. App. 417\", \"volume\": \"19\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:49:01.943345+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONOFRIO, P. J., and STEVENS, J., concur.\", \"parties\": \"The STATE of Arizona, Appellee, v. Reynaldo R. MARTINEZ, Appellant.\", \"head_matter\": \"508 P.2d 82\\nThe STATE of Arizona, Appellee, v. Reynaldo R. MARTINEZ, Appellant.\\nNo. 1 CA-CR 495.\\nCourt of Appeals of Arizona, Division 1, Department A.\\nApril 5, 1973.\\nRehearing Denied May 17, 1973.\\nReview Denied July 10, 1973.\\nGary K. Nelson, Atty. Gen., by William J. Schafer, III, Chief Counsel, Crim. Div., Phoenix, for appellee.\\nRoss P. Lee, Maricopa County Public Defender, by James H. Kemper, Deputy Public Defender, Phoenix, for appellant.\", \"word_count\": \"539\", \"char_count\": \"3192\", \"text\": \"OGG, Judge.\\nWe are asked to decide under the facts in this case if the defendant was denied the effective assistance of counsel in violation of his rights under the Sixth Amendment to the United States Constitution.\\nOn November 26, 1969 the defendant was convicted in Maricopa County of two felony charges: Attempted Burglary and Possession of a Narcotic Drug. Imposition of sentence was suspended on each charge for a period of three years. On March 13, 1972 a hearing was held and defendant's probation on both cases was revoked. At this hearing the defendant admitted he had violated the terms of his probation by continuing his use of heroin and by committing a first degree burglary to which charge he had entered a plea of guilty on January 24, 1972.\\nThe record discloses that he was represented by two attorneys at this revocation hearing and that neither made any statements that were reported in the record. The defendant now alleges that this silence by his attorneys was proof that he did not have adequate representation.\\nThe charge of inadequate representation can only prevail when it is shown that the proceedings were a farce or a sham. State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966).\\nAn excellent discussion on the art of advocacy was set forth in the case of United States v. Stoecker, 216 F.2d 51, 52 (C.A.7, 1954) :\\n\\\"Advocacy is a skill and art; easy to criticize, difficult to fairly appraise. Indeed, a post-mortem of criminal trials, selected at random, would undoubtedly reveal flaws of varying magnitude in the trial techniques of respected members of the bar. Our profession is one in which hindsight is a meager measure of counsel's competency. Trial strategy is seldom viewed with a uniform eye.\\\"\\nBoth of the attorneys representing the defendant are experienced, respected members of the Arizona Bar and in reading the transcript it appears they deemed it wise, in view of the overwhelming evidence against the defendant, to remain silent. We can only comment that in some cases the wisest trial tactic is to keep quiet and that this sometimes brilliant tactic is the hardest to learn and practice. We refuse to equate silence with incompetence. There is no evidence here that the defendant's two attorneys were incompetent or that the proceedings at the revocation were a farce or sham.\\nThis case was argued by the Office of the Public Defender of Maricopa County in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969).\\nUnder the requirements of A.R.S. \\u00a7 13-1715, we have examined the record for fundamental error and find none.\\nThe sentences of the trial court are affirmed.\\nDONOFRIO, P. J., and STEVENS, J., concur.\"}"

arizona/1223294.json

@@ -0,0 +1 @@
+"{\"id\": \"1223294\", \"name\": \"James B. JEFFRIES, Appellant, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF PHOENIX, a corporation, Appellee\", \"name_abbreviation\": \"Jeffries v. First Federal Savings & Loan Ass'n\", \"decision_date\": \"1971-10-27\", \"docket_number\": \"No. 1 CA-CIV 1317\", \"first_page\": \"507\", \"last_page\": \"511\", \"citations\": \"15 Ariz. App. 507\", \"volume\": \"15\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:51:10.859888+00:00\", \"provenance\": \"CAP\", \"judges\": \"STEVENS, P. J., and DONOFRIO, J., concur.\", \"parties\": \"James B. JEFFRIES, Appellant, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF PHOENIX, a corporation, Appellee.\", \"head_matter\": \"489 P.2d 1209\\nJames B. JEFFRIES, Appellant, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF PHOENIX, a corporation, Appellee.\\nNo. 1 CA-CIV 1317.\\nCourt of Appeals of Arizona, Division 1, Department A.\\nOct. 27. 1971.\\nPhilip T. Goldstein, Ltd. by Philip T. Goldstein, Phoenix, for appellant.\\nJennings, Strouss & Salmon by Timothy W. Barton, and Michael L. Rubin, Phoenix, for appellee.\", \"word_count\": \"2148\", \"char_count\": \"13132\", \"text\": \"CASE, Judge.\\nThis is an appeal from a judgment of the trial court, sitting without a jury, in favor of appellee First Federal Savings and Loan Association, defendant therein. The parties will be referred to herein as they appeared in the trial court.\\nThe facts necessary for a determination of the issues on appeal are as follows :\\nIn June of 1967, plaintiff Jeffries went to a branch office of defendant in Phoenix for the purpose of purchasing savings certificates. He talked to Joseph Rice, the branch manager, and told him that he desired to purchase five $15,000.00 certificates. He gave Rice five cashier's checks totaling $70,100.00. He claimed to have also given Rice $4,900.00 cash which Rice denied. These certificates were printed and contained certain blank spaces for insertion of the name of the owner, the face amount, the date of maturity and the date of issuance. After completing these certificates, each in the face amount of $15,-000.00, Rice signed each one and delivered them to the plaintiff who left the office. The plaintiff had advised Rice that he was not to be contacted by First Federal in connection with these certificates; that First Federal was to treat this account as a \\\"no correspondence\\\" account; that First Federal was to use its office address as plaintiff's mailing address; and that it was to retain all dividends and hold all tax notices in connection with the certificates.\\nShortly after the plaintiff had departed, Rice determined that a mistake had occurred in the preparation of one of the certificates in that he had issued a $15,000.00 certificate but had received only $10,100.-00. The evidence indicates that no one at First Federal attempted to contact plaintiff to explain the mistake.\\nApproximately a year later, plaintiff returned to the office for the purpose of collecting the interest which had accumulated on the certificates. Upon ascertaining that he was being paid a lower rate of interest on one of the five certificates, he inquired of the then manager as to the reason. The manager was apparently unable to explain the discrepancy. Plaintiff then left the office, returning several days later and presented the certificates for payment. The defendant accepted four certificates but refused to honor the fifth one, advising the plaintiff that a mistake had been made in the preparation of one of the certificates. Plaintiff thereafter instituted the present action praying for judgment against First Federal in the sum of $15,000.00, together with interest at the rate of five and one-quarter percent until paid. The trial court entered judgment against First Federal for only the sum of $10,100.00, together with interest, from which judgment plaintiff has taken this appeal.\\nPlaintiff raises eight issues which we will discuss in the order presented.\\n1. Does an Answer which Pleads Partial Failure of Consideration Require a Verification Pursuant to Rule 9(i), Arizona Rules of Civil Procedure?\\nPlaintiff's unverified complaint alleged in part:\\n\\\"That on or about June 28, 1967, defendant, in consideration of the sum of Fif teen Thousand Dollars ($15,000.00) then paid to defendant by plaintiff, issued a certificate known as a Savings Certificate, a copy of which is attached hereto marked Exhibit 'A' and made a part hereof, of defendant, whereby defendant agreed to pay said amount of Fifteen Thousand Dollars ($15,000.00) on or before December 28, 1967, or thereafter, on the return of said certificate, properly delivered and presented to defendant, with interest on the principal amount at the rate of five and one-quarter percent (5*4%) per annum.\\\"\\nto which allegation defendant answered:\\n\\\"Defendant denies the allegations contained in paragraph III of plaintiff's complaint; defendant affirmatively alleges that the savings certificate upon which plaintiff bases his claim was issued on or about the 28th day of July, 1967 to the plaintiff upon the payment to this defendant of the sum of $10,100.00; that said savings certificate was issued in the amount of $15,000.00 by mistake and as to any excess above the consideration paid for the same, to-wit, the sum of $4,900.00, it is without consideration.\\\"\\nThe answer was not verified. Plaintiff argues that Rule 9(i) of the Arizona Rules of Civil Procedure, 16 A.R.S. requires the verification of defendant's answer and that as a consequence the trial court should have granted plaintiff's motion to strike and/or motion for judgment on the pleadings. While we do not condone the failure to comply with our rules of civil procedure we do not agree with plaintiff's argument. As our Supreme Court pointed out in the case of Colboch v. Aviation Credit Corporation, 64 Ariz. 88, 94, 166 P.2d 584, 588 (1946) :\\n\\\"Causes should be determined on their merits rather than upon matters of procedure. Mendez v. Moya, 54 Ariz. 44, 91 P.2d 870. The rules are designed to afford parties speedy trials upon the merits, and should not be construed to deprive parties from presenting their defenses.\\\"\\nThe record reflects that on October 18, 1968, defendant answered certain interrogatories, under oath, dealing with the consideration or lack thereof, for the issuance of the savings certificate in question herein. On August 27, 1969, plaintiff filed his motion to strike and/or motion for judgment on the pleadings which was denied. The pretrial statement of August 29, 1969, stated that the contested issue of fact was:\\n\\\"Whether the plaintiff paid to the defendant in connection with the issuance of savings certificate No. 17-15462 (Account No. 17-8-458) the sum of $15,000.-00 or the sum of $10,100.00.\\\"\\nWe believe that the purpose of the rule was amply satisfied by defendant and that plaintiff suffered no prejudice by defendant's failure to verify its answer.\\n2. A. Does an Answer Affirmatively Pleading Mistake Have to be Verified Pursuant to Rule 11(c) of the Arizona Rules of Civil Procedure?\\nB. May Evidence be Properly Introduced Over Objection When an Answer Fails to Affirmatively Plead Mistake with Particularity ?\\nPlaintiff next urges that defendant's answer which plead \\\"mistake\\\" should have been verified pursuant to Rule 11(c), Ariz.R.Civ.P., and lacking this verification, the trial court erred in permitting the introduction of parol evidence to show mistake. We do not agree. Rule 11(c) of the Arizona Rules of Civil Procedure provides as follows:\\n\\\"When equitable relief is demanded, and the party demanding such relief makes oath that the allegations of the complaint, counterclaim, cross-claim, or third-party claim are true in substance and in fact, the responsive pleading of the opposite party shall be under oath\\nThe meaning of the rule is patently clear. The complaint filed by plaintiff herein does not seek equitable relief nor was it verified.\\nWith reference to plaintiff's contention regarding the admission of parol evidence to establish \\\"mistake\\\", the record reflects that shortly after the filing of defendant's answer, it answered certain interrogatories submitted by plaintiff requesting that it state each evidentiary fact upon which it relied to support its allegation that the savings certificate was mistakingly issued in the amount of $15,000.00. This was done by defendant in some detail. It is quite apparent that surprise could not be claimed by plaintiff in connection with the facts upon which defendant based its defense of mistake.\\n3. Did the Trial Court have Sufficient Evidence Before it to Reform the Savings Certificate on the Ground of Mutual or Unilateral Mistake on the Part of Defendant and Fraud or Inequitable Conduct on the Part of Defendant ?\\nThere is no question but that the law in Arizona, with reference to reformation, provides that where a mistake is relied upon as a ground for the reformation of a written instrument, the mistake must be mutual or if it is a unilateral mistake of one of the parties, the other party must be guilty of fraud, inequitable conduct or imposition. Korrick v. Tuller, 42 Ariz. 493, 27 P.2d 529 (1933).\\nDefendant's answer alleged in part:\\n\\\" that said savings certificate was issued in the amount of $15,000.00 by mistake \\\"\\nPlaintiff argues that defendant, having never claimed that plaintiff was guilty of fraud or inequitable conduct, based its entire case for reformation upon mutual mistake when there was no evidence in support thereof. We do not agree.\\nThe trial court found in paragraph 3 of its Conclusions of Law:\\n\\\"The evidence presented by the defendant established that the typewritten portion of Savings Certificate No. 17-15462 (Savings Account No. 17-8-458), which states 'FIFTEEN THOUSAND AND NO/100THS DOLLARS' was the result of an error on the part of the person who prepared the savings certificate.\\\"\\nObviously, the court did not specifically find mutual mistake. However, it did reform the certificate to read $10,100.00. Our Supreme Court has held that in the absence of a finding of fact upon a vital issue on appeal it will presume that such findings were made by the trial court as are necessary to support its judgment if there is evidence in the record to sustain such presumed findings. Leigh v. Loyd, 74 Ariz. 84, 244 P.2d 356 (1952) ; King Realty, Inc. v. Grantwood Cemeteries, Inc., 4 Ariz.App. 76, 417 P.2d 710 (1966). An examination of the evidence in this case clearly indicates that there was more than ample evidence before the court to sustain an implied finding of mutual mistake. We do not deem it necessary that this evidence be set forth in toto. Suffice it to say that the evidence discloses that defendant received only $10,-100.00 for the certificate.\\n4. Does Laches Preclude the Granting of Equitable Relief ?\\nPlaintiff next argues that since defendant did not act with reasonable diligence and promptness in advising plaintiff of the mistake in connection with the preparation of the savings certificate that it is therefore barred in seeking reformation, urging that this delay somehow prejudiced plaintiff in proving that he had paid the additional sum of $4,900.00. Again, we do not agree. Our Supreme Court in the case of Felix v. Superior Court of Pima County, 92 Ariz. 247, 375 P.2d 730 (1962), has stated that laches is not merely a question of the passage of time but also involves an intervening change of position of one of the parties which would render it inequitable to grant relief to the other party. Plaintiff has shown no intervening change of position. It is also interesting to note that plaintiff left explicit instructions with First Federal that he was not to be contacted by them for any r\\u00e9ason in connection with these certificates.\\n5. A. Is a Savings Certificate, Like a Certificate of Deposit, an Instrument in Writing Evidencing a Transaction Between a Purchaser and a Financial Institution and Therefore Subject to the Same Principles of Law as Applicable to Other Written Instruments ?\\nB. Does the Parol Evidence Rule Bar the Admission of Evidence in Explanation of an Instrument Clear on its Face or is Such Evidence Proper Which Shows or Tends to Show that a Mistake Occurred in the Preparation of a Savings Certificate?\\nPlaintiff and defendant concur that a depositor in a federal association is not a creditor of the association as is the depositor in a bank and that a savings certificate is nothing more than a certificate evidencing ownership of a share interest. 12 C.F.R. \\u00a7 545.2(b) (Rev.1971). Plaintiff, however, urges that by virtue of the contractual nature of the relationship between a corporation and its stockholders that the savings certificate in issue herein is the complete contract between the parties and that as a result it must be construed under the same rules of law applicable to all written contracts. We do not agree. Our Supreme Court in the case of Hook v. Hoffman, 16 Ariz. 540, 147 P. 722 (1915), held that a stock certificate is not the stock itself but is simply written evidence of the ownership of stock. In the case at bar, the evidence established that plaintiff owned a share interest in defendant to the extent of only $10,100.00 and that inasmuch as the certificate is not binding relative to the interest of the stockholder, parol evidence is obviously admissable to explain or to set forth the actual interest owned by plaintiff. The certificate itself provides upon its face that it is subject to the charter and by-laws of defendant, the rules and regulations of the Federal Savings and Loan System and the laws of the United States. Plaintiff attempts to compare a savings certificate to a certificate of deposit. Inasmuch as a certificate of deposit gives rise to a debtor-creditor relationship, there can be no analogy.\\nThe judgment of the trial court is affirmed.\\nSTEVENS, P. J., and DONOFRIO, J., concur.\"}"

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+"{\"id\": \"1234483\", \"name\": \"CASHION GIN COMPANY, an Arizona Corporation, Appellant, v. Alex A. KULIKOV and Frances Kulikov, his wife, Roy A. Kulikov, also known as Roy A. Kulikoff, a bachelor, W. W. Valor and Mary Valor, his wife, Appellees\", \"name_abbreviation\": \"Cashion Gin Co. v. Kulikov\", \"decision_date\": \"1965-03-09\", \"docket_number\": \"No. 1 CA-CIV 4\", \"first_page\": \"90\", \"last_page\": \"98\", \"citations\": \"1 Ariz. App. 90\", \"volume\": \"1\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T20:06:45.784723+00:00\", \"provenance\": \"CAP\", \"judges\": \"CAMERON and DONOFRIO, JJ., concurring.\", \"parties\": \"CASHION GIN COMPANY, an Arizona Corporation, Appellant, v. Alex A. KULIKOV and Frances Kulikov, his wife, Roy A. Kulikov, also known as Roy A. Kulikoff, a bachelor, W. W. Valor and Mary Valor, his wife, Appellees.\", \"head_matter\": \"399 P.2d 711\\nCASHION GIN COMPANY, an Arizona Corporation, Appellant, v. Alex A. KULIKOV and Frances Kulikov, his wife, Roy A. Kulikov, also known as Roy A. Kulikoff, a bachelor, W. W. Valor and Mary Valor, his wife, Appellees.\\nNo. 1 CA-CIV 4.\\nCourt of Appeals of Arizona.\\nMarch 9, 1965.\\nKenneth Biaett, Phoenix, for appellant.\\nKramer, Roche, Burch & Streich, by Daniel Cracchiolo and Mark I. Harrison, Phoenix, for appellees W. W. Valor and Mary Valor, his wife.\\nThis appeal was filed with the Arizona Supreme Court and assigned that Court\\u2019s Number 7399. The matter was referred to this Court pursuant to Section 12-120.23 A.R.S.\", \"word_count\": \"4555\", \"char_count\": \"26264\", \"text\": \"STEVENS, Chief Judge.\\nThis case relates to a claimed fraudulent conveyance within the purview of Arizona Uniform Fraudulent Conveyance Act. The pertinent parts of the act are set forth in the footnote. 23The case was tried to the court sitting with a jury. At the close of the plaintiff's case the court directed a verdict against the plaintiff and in favor of the defendants appearing in the trial court. This appeal followed.\\nCashion Gin Company, the plaintiff-appellant, loans money to finance the growing of cotton. Alex A. Kulikov and Frances Kulikov, his wife, were cotton growers and residents of Arizona. They borrowed money from the Cashion Gin to finance the growing of cotton on land which they were buying on contract being the land which is the subject of this suit. At the time in question the land had not been fully paid for. The purchase contract was properly recorded. The deed which was to be delivered and recorded upon the making of the final payment under the contract was held in escrow by the collection agent.\\nIn 1951 Stewart (not a party to the suit) sold the land in question to Sanders (not a party) by contract. Stewart thereafter transferred his seller's interest to Campbell (not a party) who in turn transferred the same interest to Bell (not a party). On February 20, 1956 Sanders entered into a contract to sell the buyer's interest to Mr. and Mrs. Kulikov and later Sanders transferred the balance of Sanders' equity to Bell. On January 10, 1958 the principal unpaid balance in relation to the contract obligation of Mr. and Mrs. Kulikov was $6,-405.00.\\nRoy A. Kulikov is the bachelor brother of Alex A. Kulikov. Mary Valor is the sister of Alex A. Kulikov and of Roy A. Kulikov and the wife of W. W. Valor.\\nBy this action, which was filed on. May 29, 1959, Cashion Gin seeks to set aside the transfer of the buyers equity from Mr. and Mrs. Alex A. Kulikov to Roy A. Kulikov as well as a later transfer from Roy A. Kulikov to Mr. and Mrs. Valor. The buyers equity under such a contract is capable of legal transfer and no legal issue is presented in relation to the fact of the technical legal capacity of a buyer to transfer such equity.\\nIn the trial court Mr. and Mrs. Alex A. Kulikov filed their answer which was verified by Alex A. Kulikov. The file before this Court reflects that Roy A. Kulikov was served and that his default was entered. The record does not disclose that he was present in court at the time of trial. He is not a party to this appeal. This Court expresses no opinion as to the legal effect of the service of process or as to the legal effect of this opinion in relation to Roy A. Kulikov.\\nMr. and Mrs. Valor, through the services of their attorneys, filed their answer and contested the case in the trial court. Mary Valor was personally present at the trial. At the trial Mr. and Mrs. Alex A. Kulikov were represented by their attorneys. The record implies that neither Mr. nor Mrs. Alex A. Kulikov was personally present at the trial.\\nAfter the trial court directed the verdict against the plaintiff, judgment was entered thereon.\\nJudgment was also rendered in favor of Maricopa County and against Cashion Gin for jury fees. Cashion Gin then gave timely notice of appeal and served the same upon the trial court attorneys of record for Mr. and Mrs. Alex A. Kulikov and upon the attorneys for Mr. and Mrs. Valor. The Cashion Gin opening brief on the appeal was served upon the same attorneys. No brief was filed on behalf of Mr. and Mrs. Kulikov. Mr. and Mrs. Valor joined issue on the appeal. Under the circumstances of this case the unexplained failure of Mr. and Mrs. Alex A. Kulikov to participate in the appeal constitutes a confession of error. Mower v. Street, 79 Ariz. 282, 288 P.2d 495 (1955).\\nThe controversy between Cashion Gin and Mr. and Mrs. Valor differs to some degree from the controversy between Cashion Gin and the defendants named Kulikov. Mr. and Mrs. Valor do not concede that the transfer from Mr. and Mrs. Alex A. Kulikov to Roy A. Kulikov comes within the purview of the Arizona Fraudulent Conveyance Act and they urge that even if it did, the estate which Mr. and Mrs. Valor acquired in the land cannot be attacked. The Valors urge that they paid a fair consideration and that they bought without actual fraudulent intent and without knowledge of any facts which would put them on notice as to any imperfection in the title which Roy A. Kulikov transferred to them. Cashion Gin urges that the position of Mr. and Mrs. Valor is not sustained by the evidence, that at least there is a jury question as to Mr. and Mrs. Valor and that the Valors can retain the property or an interest therein only as security for repayment pursuant to the provisions of Sub-section B of Sec. 44 \\u2014 1009. Cashion Gin urges that it did prove a fraudulent conveyance from Mr. and Mrs. Alex A. Kulikov to Roy A. Kulikov or that at least Cashion Gin made out a prima facie case good as against a directed verdict and sufficient to require that the case be submitted to the jury. Therefore, it becomes essential to examine the claimed fraudulent conveyance from Mr. and Mrs. Alex A. Kulikov to Roy A. Kulikov before we can examine the position of Mr. and Mrs. Valor.\\n- The trial raised several interesting evidentiary problems. The'briefs of Cashion Gin question some of the trial court's rulings upon evidence. These rulings are not presented in such manner as to call for a decision by this Court in relation to the rulings. This decision is written based upon the matters which were received in evidence. The issues cannot be discussed without reference to the rulings. All matters in relation to rulings upon evidence are reserved for the consideration of the trial court upon the re-trial of this cause.\\nIn late 1956 Alex A. Kulikov negotiated with Cashion Gin for a loan to finance the growing of the 1957 cotton crop on the land in question. In this connection Mr. and Mrs. Alex A. Kulikov executed two promissory notes, one on January 14, 1957 for $22,400 and one on May 8, 1957 for $6,125.-00. At the time of the execution of the January 14th promissory note, they also executed a crop and chattel mortgage. These notes were in turn negotiated to a bank by Cashion Gin by which negotiation funds became available to Cashion Gin to finance the crop.\\nIn late 1957 before the returns on the cotton crop financed by the above notes and mortgage were all computed and at a time when it could not be ascertained with certainty whether or not the 1957 crop would pay out, Alex A. Kulikov and Cashion Gin again talked about financing the cotton crop for the next year, the same to be planted on the same land being the land in question. These discussions proceeded into February and March of 1958 and the matter of a loan was finally approved about mid March 1958.\\nThe 1957 cotton crop did not pay out and some time after the mid March 1958 approval for the new financing, Cashion Gin filed suit to collect the unpaid balance in relation to the 1957 crop, this being Civil Cause No. 99266. Cause No. 99266 was tried and on May 27, 1959 a judgment was entered in favor of Cashion Gin for principal, interest and attorneys fees in the overall sum of $20,450.34. In 1959, credits were applied to this judgment and at the time of trial on Ju\\u00f1e 1, 1961,' the unpaid balance on the judgment including interest, was the sum of $18,746.95.\\n. Going back to the financing of the 1958 crop, there was a loan application which was executed on February 27, 1958. The testimony established that loan applications are used in connection with the negotiating of the promissory notes in the matter of securing the money necessary for the financing of the crop. The typed loan application signed by Mr. and Mrs. Alex A. Kulikov was offered in evidence and an objection thereto was sustained. During the loan negotiations the fact of Mr. and Mrs. Alex A. Kulikov's ownership of the land in question as well as the indebtedness against it was discussed. The evidence disclosed that on March 19, 1958 a note for tlie 1958 financing was signed by Mr. and Mrs. Alex A. Kulikov. The note was offered in evidence and an objection thereto, was sustained.\\nWithout the knowledge of Cashion Gin and on January 30, 1958 Mr. and Mrs. Alex A. Kulikov opened an escrow wherein they were the sellers and Roy A. Kulikov was the buyer of the property in question. The. escrow recited a purchase price of $13,740 of which $6,405 was to be paid by assuming the outstanding balance on the contract. $7,335 was recited as having been paid directly to the seller. On March 24, 1958 Mr. and Mrs. Alex A. Kulikov acknowledged their signatures before a Notary Public on an escrow document designated as an assignment of their interest in the contract pursuant to which they were buying the property. In the mean time, and by quit claim deed, dated and recorded on March 21, 1958, Mr. and Mrs. Alex A. Kulikov quit claimed their interest in the property to. Roy A. Kulikov. The County Recorder was directed to mail the recorded document to an address in Tolleson, Arizona. When certain escrow and title fees were paid, the escrow was closed and a deed, which was one of the escrow documents, acknowledged on March 24, 1958 was recorded on April 9, 1958 with instruc tions to the County Recorder to send the recorded instrument to Roy A. Kulikov at a California address. It is interesting to note that in the escrow file there is correspondence from the escrow holder to Roy A. Kulikov under date of March 21, 1958 which refers to a judgment of record against Mr. and Mrs. Alex A. Kulikov with Roy A. Kulikov's reply under date of April 2, 1958 to the effect that the title could show the judgment as an exception. The file is silent as to any suggestion as to a price adjustment.\\nIn relation to the discussions leading up to the execution of the 1958 loan application and the subsequent promissory note, there was testimony which was not stricken that Mr. Alex A. Kulikov told Cashion Gin that the value of the land in question was $120,-000. The testimony indicated that this figure was also inserted by Mr. Alex A. Kulikov in his longhand preliminary draft of the loan application. These longhand notes were transcribed by a Cashion Gin secretary and after Mr. and Mrs. Alex A. Kulikov signed the document so typed, the original notes were destroyed. It was this typed document which was offered into evidence and to which the objection was sustained as above noted.\\nTwo appraisers testified as to the fair market value of the land as of the time of the 1958 loan. One fixed the fair market value of $75,000 and the other at $78,750.\\nThe evidence indicated that after the recording of the deeds to Roy A. Kulikov, the defendant Alex A. Kulikov remained in possession of the land at least until April 1958.\\nOn June 12, 1958 an escrow was opened with another title company wherein Roy A. Kulikov was the seller and Mr. and Mrs. Valor were the buyers, the escrow file reflecting a sale price of $18,000. We need not recite the details of this transaction. The original escrow instruction^ contemplate a June 20,1958 closing date. The agreement of sale was not recorded until January 30, 1959 and the deed arising out Of the escrow was not recorded until March 19, 1959. Mrs. Valor testified that the money was in fact paid by them and that the source of the funds was one or another form of savings. She further testified that they knew not that Alex A. Kulikov had ever held an interest in this land and that they knew not of any transaction between Mr. and Mrs. Alex A. Kulikov and Roy A. Kulikov. This evidence relates to Section 44 \\u2014 1009B, but is not a complete defense in the event that Cashion Gin establishes a conveyance in fraud of creditors between Mr. and Mrs. Alex A. Kulikov and Roy A. Kulikov.\\nThere was evidence as to other debts owed by Mr. and Mrs. Alex A. Kulikov and evidence as to some additional assets owned by them, the net effect of which was that there was insufficient property owned by them to pay all these debts after they had divested themselves in the interest of the property in question. There was evidence that Cashion Gin learned of the transfer from Alex A. Kulikov to Roy A. Kulikov some two or three months after the fact of recording. The record implies that Cashion Gin learned of the Roy A. Kulikov \\u2014 Valor transaction hut the date of the acquisition of that knowledge was not established.\\nCashion Gin negotiated the 1958 note to a bank. Notwithstanding these transactions, Cashion Gin continued to pay persons who furnished the necessities for the growing and maturing of the cotton crop, continuing to make such payments after learning of the transfer to Roy A. Kulikov, possibly after learning of the fact of a claimed interest by the Valors. Cashion Gin urges that it was its contract obligation to continue to finance the growing crop both in relation to the loan from the bank and in relation to the fact that persons furnishing necessities for the maturing of the crop relied upon Cashion Gin to complete the contract.\\nWith these showings the plaintiff rested its case. The defendants moved to amend their answer to setup an estoppel and the motion was granted. The trial court was not required to and did not make any specific findings. In our opinion the evidence presented was not sufficient to sustain the defense of estoppel. The tests for estoppel have been discussed by the Arizona Supreme Court. In Holmes v. Graves, 83 Ariz. 174, 177, 318 P.2d 354, 356 (1957) the Court stated that there are three elements to an estoppel.\\n\\\"It has three elements. First, acts inconsistent with the claim afterwards relied on; second, action by the adverse party on the faith of such conduct; third, injury to the adverse party resulting from the repudiation of such conduct.\\\"\\nIn Knight v. Rice, 83 Ariz. 379, 382, 321 P. 2d 1037, 1038 (1958) the court quoted an earlier Arizona case as follows:\\n\\\" ' The essential elements of estoppel are that plaintiff, with knowledge of the facts, must have asserted a particular right inconsistent with that asserted in the instant action, to the prejudice of another who has relied upon his first conduct. ' \\\"\\nThe Court is faced with the answers to the following questions:\\nWas the evidence which was received by the trial court sufficient to make out a prima facie case of a fraudulent conveyance from Mr. and Mrs. Kulikov to Roy A. Kulikov applying the tests set forth in the Arizona Fraudulent Conveyance Act?\\nIf there was sufficient evidence and even though the trial court was of the opinion that the evidence did not establish a prima facie case of a fraudulent conveyance from Roy A. Kulikov to Mr. and Mrs. Valor, was the evidence such that it was not appropriate to direct a verdict in favor of Mr. and Mrs. Valor?\\nWere there sufficient facts presented to the trial court to require that the trial court submit the case to a jury even though this is an equity case?\\nThese questions are answered in the affirmative.\\nIn the trial of a case under the Fraudulent Conveyance Act, it is not necessary for the plaintiff to prove actual fraud, the plaintiff need not prove the traditional nine elements of actual fraud. If actual fraud is shown, the plaintiff may have the advantage thereof. Linder v. Lewis, et al., 85 Ariz. 118, 124, 333 P.2d 286 (1958). In the event that the plaintiff proves a fraudulent conveyance within the meaning of the Act in relation to the conveyance or transfer from Mr. and Mrs. Alex A. Kulikov to Roy A. Kulikov then Sec. 44-1009B grants the plaintiff some relief as against Mr. and Mrs. Valor. In the event that the initial creditors \\u2014 grantors, here Mr. and Mrs. Alex A. Kulikov, absent themselves from the trial, is the plaintiff precluded from introducing evidence which evidence is within the plaintiff's knowledge and which evidence would be admissible as against the initial alleged fraudulent grantor and which evidence is hearsay as to Mr. and Mrs. Valor, the subsequent grantees? We have not been cited cases on this matter nor have we found any directly in point. It is our opinion that the answer to this last question must be in the negative. To hold otherwise would be to place it within the power of the original fraudulent grantee to negate the right of recovery by the defrauded creditor thereby rendering the provisions of Sec. 44-1009 B impotent and of no value. These observations are important to the re-trial of this cause.\\nThe attorneys for Mr. and Mrs. Valor objected to expert opinion relative to fair market value urging that the question of fair market value is not the ultimate test. It is true that fair market value is not the ultimate test. The statute used the terms \\\"fair salable value\\\", \\\"fair equivalent therefore\\\" and \\\"fair consideration\\\". As pointed out in the opinion in Neal v. Clark, 75 Ariz. 91, 94, 251 P.2d 903 (1952) the matter of money consideration and its relation to fair market value is not the only consideration, there can be others as well. Many of these matters are defensive matters once a prima facie case has been shown. Evidence of fair market value is important to give the jury a basis upon which it can determine the fact question relative to the statutory tests above quoted. The attorneys also objected to the use of fair market value urging that the test as to fair market value in relation to condemnation was not the same test as to fair market value in relation to the case under consideration. This Court knows of no distinction which can be drawn to the effect that there are several definitions of fair market value depending upon the nature of the case to be tried.\\nIn the case now under consideration, Cashion Gin does not rely upon actual fraud but relies upon the statute and urges that the evidence discloses numerous \\\"badges of fraud\\\". The Arizona Supreme Court has given consideration to badges of fraud. References are found in the following cases: Ollason v. Glasscock, 26 Ariz. 193, 224 P. 284 (1924); Torosian v. Paulos, 82 Ariz. 304, 312, 313 P.2d 382 (1957); and Linder. In Torosian, the Arizona Supreme Court stated that one or a combination of two or more badges of fraud may be sufficient. This Court does not attempt to list all of the fact situations which can be classified as badges of fraud and cites only as examples \\u2022of badges of fraud the following:\\n24 Am.Jur. \\u2014 Fraudulent Conveyances Section 14, Pages 173 and 174 \\\"C. INDICIA OR BADGES OF FRAUD\\n\\\"\\u00a7 14. Generally. \\u2014 Certain circumstances have come to be recognized as indicia or \\\"badges\\\" of fraud; and proof thereof has a more or less well defined evidentiary force or effect. The evidentiary effect of circumstances of this character depends upon the showing as to whether a satisfactory explanation thereof has been presented. The facts which are recognized indicia of fraud are numerous, the most important being the insolvency of indebtedness of the transferrer, lack of consideration for the conveyance, retention by the debtor of possession of the property, relationship between the transferrer and the transferee, the reservation of benefit to the transferrer, the pendency or threat of litigation, secrecy or concealment, and the transfer of the debtor's entire estate.\\\"\\nThe brief of the appellant refers to additional badges of fraud:\\n\\\"Conduct of transfer not in usual course of business. 37 C.J.S. Fraudulent Conveyances. Section 83, page 925. Transfers to persons having no apparent use for the property. 37 C.J.S. Fraudulent conveyances, Section 96, page 930.\\\"\\nThese listings are intended only to be illustrative. We do not urge that they are all inclusive. The descriptive language may vary. The actual application of the badges of fraud is to be applied on the re-trial of the case. It is the opinion of this Court that the record reflects sufficient badges of fraud to present a prima facie case requiring that the motion for directed verdict be denied.\\nIn equity cases as in law cases where there are fact issues, the parties are entitled to a jury consideration. Security Trust & Savings Bank v. McClure, 29 Ariz. 325, 241 P. 515 (1925) ; Light v. Chandler Improvement, 33 Ariz. 101, 261 P. 969, 57 A.L.R. 107 (1928) ; and Haynie v. Taylor, 69 Ariz. 339, 213 P.2d 684 (1950).\\nThis is true even though thereafter in an equity case the court is not required to follow the findings or recommendations of the jury. Security Trust and Light.\\nWe are of the opinion that the record discloses a prima facie case of a fraudulent conveyance under the statute being that conveyance from Mr. and Mrs. Kulikov to Roy A. Kulikov. We are of the opinion that there are at least fact issues as to the circumstances surrounding the purchase by Mr. and Mrs. Valor and that even should they be found to have paid a fair consideration without knowledge of any fraud, they should not have been granted a directed verdict, for in doing so, the plaintiff was deprived of its rights under Section 44-1009 B.\\nThe trial court was in error in directing a verdict both as to Mr. and Mrs. Kulikov and as to Mr. and Mrs. Valor. This cause is reversed and remanded for a new trial consistent with this opinion. The matter of the assessment of jury fees in relation to the first trial shall abide the outcome of the second trial.\\nCAMERON and DONOFRIO, JJ., concurring.\\n. Arizona Revised Statutes \\u04a4 44r-1001 Definition of terms In this article:\\n1. \\\"Assets\\\" of a debtor means property not exempt from liability for his debts. To the extent that any property is liable for any debts of the debtor, such property shall be included in his assets.\\n2. \\\"Conveyance\\\" includes every payment of money, assignment, release, transfer, lease, mortgage or pledge of tangible or intangible property, and also the creation of any lien or incumbrance.\\n3. \\\"Creditor\\\" is a person having any claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent.\\n4. \\\"Debt\\\" includes any legal liability, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent.\\n\\u00a7 4A-1002 Insolvency:\\nA. A person is insolvent when the present fair salable value of his assets is less than the amount that will be required to pay his probable liability on his existing debts as they become absolute and matured.\\n\\u00a7 44^-1003 Pair consideration:\\nPair consideration is given for property, or obligation:\\n1. When in exchange for such property, or obligation, as a fair equivalent therefor, and in good faith, property is con veyed or an antecedent debt is satisfied, or\\n2. When such property, or obligation is received in good faith to secure a present advance or antecedent debt in amount not disproportionately small as compared with the value of the property, or obligation obtained.\\n\\u00a7 44-1004 Conveyances by insolvent: Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation, is incurred without a fair consideration.\\n\\u00a7 44^-1006 Conveyances by a person about to incur debts:\\nEvery conveyance made and every obligation incurred without fair consideration when the person making the conveyance or entering into the obligation intends or believes that he will incur debts beyond his ability to pay as they mature, is fraudulent as to both present and future creditors.\\n\\u00a7 44^-1007 Conveyance made with intent to defraud:\\nEvery conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors.\\n\\u00a7 44-1009 Rights of creditors whose claims have matured:\\nA. Where a conveyance or obligation is fraudulent as to a creditor, such creditor, when his claim has matured, may, as against any person except a purchaser for fair consideration without knowledge of the fraud at the time of the purchase, or one who has derived title immediately or mediately from such a purchaser:\\n1. Have the conveyance set aside or obligation annulled to the extent necessary to satisfy his claim, or\\n2. Disregard the conveyance and attach or levy execution upon the property conveyed.\\nB. A purchaser who without actual fraudulent intent has given less than a fair consideration for the conveyance or obligation, may retain the property or obligation as security for repayment.\\n\\u00a7 44r-1010 Rights of creditors whose claims have not matured:\\nWhere a conveyance made or obligation incurred is fraudulent as to a creditor whose claim has not matured he may proceed in a court of competent jurisdiction against any person against whom he could have proceeded had his claim matured, and the court may:\\n1. Restrain the defendant from disposing of his property,\\n2. Appoint a receiver to take charge of the property,\\n3. Set aside the conveyance or annul the obligation, or\\n4. Make any order which the circumstances of the case may require.\\n\\u00a7 4r4-1011 Oases not provided for in this article:\\nIn any case not provided for in this article the rules of law and equity including the law merchant, and in particular the rules relating to the law of principal and agent, and the effect of fraud, misrepresentation, duress or coercion, mistake, bankruptcy or other invalidating cause shall govern.\\n\\u00a7 44-1012 Construction of article:\\nThis article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.\\n\\u00a7 44^1013 Name of article:\\nThis article may be cited as the Uniform Fraudulent Conveyance Act.\\\"\"}"

arizona/1236499.json

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+"{\"id\": \"1236499\", \"name\": \"Frank Henry McCUE, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, and the Arizona State Guard and Detective Agency, Respondents\", \"name_abbreviation\": \"McCue v. Industrial Commission\", \"decision_date\": \"1967-03-09\", \"docket_number\": \"No. 1 CA-IC 110\", \"first_page\": \"194\", \"last_page\": \"197\", \"citations\": \"5 Ariz. App. 194\", \"volume\": \"5\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:53:08.588259+00:00\", \"provenance\": \"CAP\", \"judges\": \"CAMERON, C. J., and DONOFRIO, J., concur.\", \"parties\": \"Frank Henry McCUE, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, and the Arizona State Guard and Detective Agency, Respondents.\", \"head_matter\": \"424 P.2d 842\\nFrank Henry McCUE, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, and the Arizona State Guard and Detective Agency, Respondents.\\nNo. 1 CA-IC 110.\\nCourt of Appeals of Arizona.\\nMarch 9, 1967.\\nRobert J. Spillman, Phoenix, for petitioner.\\nRobert K. Park, Chief Counsel, by Noel J. R. Levy, for respondent Industrial Commission of Arizona.\", \"word_count\": \"1568\", \"char_count\": \"9004\", \"text\": \"STEVENS, Judge.\\nThis case is before the Court of Appeals by writ of certiorari granted on application of the petitioner, Frank Henry McCue, to review the lawfulness of an award and findings of The Industrial Commission.\\nThe primary matter for our consideration is whether the evidence supports the findings and award that the petitioner did not sustain an accident arising out of and in the course of his employment.\\nPetitioner was employed by The Arizona State Guard and Detective Agency as a security guard. He was working at the Valley National Bank Operations Center adjacent to the Black Canyon Highway. On 19 May 1965, petitioner was working the shift from midnight to 8:00 a.m. At approximately 3 o'clock a.m. he was struck by a car and injured while crossing the southbound access lane to the Black Canyon Freeway. There had been a two-car collision in the northbound lane of the Freeway shortly before the accident in which petitioner was injured took place. A crowd of employees from the Bank Operations Center had crossed the access road to look at the accident.\\nThe Commission issued an award of noncompensable claim. The petitioner protested this and filed a petition for rehearing, and as a result, a hearing was held 28 February 1966. The petitioner testified as a witness at the hearing. He stated that because of his injuries he was unable to remember the nature and extent of all the events that took place in the early morning of 19 May 1965. He said it was not his practice to go out onto the street to investigate automobile accidents, and that in the past when he had gone off the Bank property onto the access road or south of the canal, he had done so for the purpose of investigating the activities of persons or vehicles he had observed in that vicinity; and, that this type of investigation was part of his duty as a security officer for the Bank Operations Center. The petitioner was asked whether or not he had been instructed to go off the property to investigate incidents of this type and he replied that he had not been specifically instructed to do so, but his instructions were to handle the situation at his discretion, and that \\\"naturally I assumed that it is part of the area of the bank, and when anything looks like it might need [sic] a security reason we go out there and investigate it.\\\" He testified that he had previously had occasion to make an investigation of boys running from the Valley Bank Operations Center parking lot to the canal road, and on that occasion, after telephoning to the city police, he followed the boys off the Bank property in an attempt to see if they had stolen something from one of the cars in the parking lot.\\nThe petitioner's immediate supervisor, Patrick Ganser, testified. He stated that he was with The Arizona State Guard and Detective Agency, and was in charge of bank security. Mr. Ganser said that he instructed petitioner and the other security guard employees as to the nature and extent of their duties. He testified that he also discussed the security measures with Mr. MacAllan, the manager of the Valley Bank Operations Center. He said that in his instructions to his employees, he gave them instructions as to certain circumstances when it would be necessary for them to go off the property they were guarding to fully perform their duties. He stated that the Guard and Detective Agency has a set of rules as to \\\"any surrounding security measure, anything pertaining to the bank like people on the road that they have to investigate or cars that they are to investigate and find out the reason for these people being there and if they have any business with the bank.\\\" Mr. Ganser made it clear that it was not their employees' j ob to accost anyone on the public highway, or to investigate accidents occurring on the public highway, but he emphasized that the job of their guards was the security of the Bank's buildings. Mr. Ganser concluded that in his professional opinion the petitioner had been acting in the line of duty on the evening the accident occurred.\\nWilliam MacAllan, vice president and manager of the Valley National Bank Operations Center, also testified. He stated that the computer center contained equipment of great value, and the peripheral equipment which goes with it, which performs the Bank's proof and bookkeeping function. He testified that the Bank has a working arrangement with The Arizona State Guard and Detective Agency. He said he had discussed security measures with Mr. Ganser of that organization. Mr. MacAllan testified that from his understanding of the working arrangement with the Guard and Detective Agency, and from his experience as manager of the Operations Center, in his opinion it would be appropriate for one of the security guards to investigate persons or automobiles which were actually off the property of the Bank, and specifically on the access road to the Black Canyon Highway. He stated that they would expect their security guard to \\\"investigate anything that might have to do with the security of the building.\\\" He also said he could think of \\\"a lot of things that might occur around the building or in front of the building that might have something to do with the security within.\\\" He was asked whether or not it was true that the employees of the Guard and Detective Agency were given considerable discretion as to what incidents they felt merited such investigation, and he answered, \\\"yes, we leave that up to them.\\\" On cross-examination, Mr. MacAllan was asked to describe briefly the duties of a security guard such as the petitioner. He stated that a part of the duties was for him to make rounds and punch the time clock as he makes his rounds. Another duty, he said, is to look for fires, within and without the building, and also to look for vandals, or anything that has to do with the security of the building. Mr. MacAllan stated, \\\"one of the things that we are afraid of is someone could take a shot at the building and cripple our equipment if they ever hit it with a bullet, for instance.\\\" One of the employees of the bank, Sharon Gilbert, testified that she was present outside the Valley National Bank Operations Center at the time the accident occurred on the Black Canyon Highway, and until after the petitioner had been struck by the automobile. She was on her lunch break at the time. She stated that at least five or six employees of the Bank had left the Bank premises and were standing by the fence adjacent to the Black Canyon Highway, looking down at the accident which had occurred there. She said that at the time the petitioner was injured, she was standing at the fence with a man who was a stranger to her, and was not to her knowledge an employee of the Bank. She said she had seen the petitioner go hack into the Operation Center, then return in the direction of the place where she was standing. She stated she did not see him in the instant prior to his accident, but that when he was hit by the car he was thrown by the impact and landed at her feet.\\nThe Commission made the following findings based upon this evidence before them:\\n\\\"1. At the time of applicant's accident he was not performing any services for or on behalf of his employer.\\n\\\"2. At the time of said accident, applicant was not at a place required of or reasonably expected or contemplated in connection with his duties.\\n\\\"3. Observing and/or investigating an accident on the Black Canyon Freeway is not related nor incidental to matters affecting the security of the premises.\\n\\\"4. Applicant did not sustain injury by accident arising out of and in the course of his employment.\\\"\\nWe have previously stated:\\n\\\"The test as to whether specific activities are considered to be within the scope of employment or purely personal activities is the reasonableness of such activities. If the activity is found to be reasonable 'the risk inherent in such activity is an incident of his employment'.\\\" Charles v. Industrial Commission, 2 Ariz.App. 202, 407 P.2d 391 (1965).\\nWe have examined the entire record in this case, and it is the opinion of this Court that the only reasonable interpretation which can be made therefrom i.s that the petitioner was within the scope of his employment when he was injured, and that his injury arose out of and in the course of his employment.\\nThe responsibility of this Court is to either affirm or set aside the award. A.R.S. Section 23-951, subsec. D. In view of the conclusions which we have reached that the award must be set aside, we do not deem it necessary to consider other matters presented to us by the petitioner.\\nCAMERON, C. J., and DONOFRIO, J., concur.\"}"

arizona/1236981.json

@@ -0,0 +1 @@
+"{\"id\": \"1236981\", \"name\": \"The STATE of Arizona, Appellee, v. Angel Junior GONZALES, Appellant\", \"name_abbreviation\": \"State v. Gonzales\", \"decision_date\": \"1976-07-27\", \"docket_number\": \"No. 1 CA-CR 1580\", \"first_page\": \"308\", \"last_page\": \"309\", \"citations\": \"27 Ariz. App. 308\", \"volume\": \"27\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:06:30.321804+00:00\", \"provenance\": \"CAP\", \"judges\": \"HOWARD, C. J., and HATHAWAY, J., concur.\", \"parties\": \"The STATE of Arizona, Appellee, v. Angel Junior GONZALES, Appellant.\", \"head_matter\": \"554 P.2d 904\\nThe STATE of Arizona, Appellee, v. Angel Junior GONZALES, Appellant.\\nNo. 1 CA-CR 1580.\\nCourt of Appeals of Arizona, Division 1.\\nJuly 27, 1976.\\nRehearing Denied Aug. 31, 1976.\\nReview Denied Sept. 28, 1976.\\nBruce E. Babbitt, Atty. Gen., by William J. Schafer, III, and Cleon M. Duke, Asst. Attys. Gen., Phoenix, for appellee.\\nRoss P. Lee, Maricopa County Public Defender, by Edmund T. Allen III, Deputy Public Defender, Phoenix, for appellant.\", \"word_count\": \"469\", \"char_count\": \"2841\", \"text\": \"OPINION\\nKRUCKER, Judge.\\nAppellant was charged with operating a motor vehicle while under the influence of intoxicating liquor, said offense being committed while his driver's license was suspended, in violation of A.R.S. \\u00a7 28-692 and 28-692.02.\\nThe case was submitted to the court on the basis of the preliminary hearing transcript and the departmental report. Appellant was found not guilty of driving while intoxicated and guilty of driving with a suspended license in violation of A.R.S. \\u00a7 28-1203. He advances two grounds for reversal :\\n1. The court erred in not granting his motion to dismiss.\\n2. The court erred in finding him guilty under A.R.S. \\u00a7 28-1203.\\nWe find no merit in either argument.\\nAs to the motion to dismiss for violation of the speedy trial rule, the violation was waived by appellant's failure to timely assert it. State v. Lee, 25 Ariz.App. 220, 542 P.2d 413 (1975).\\nAppellant contends that A.R.S. \\u00a7 28-692.02 refers only to \\\"a suspension of the type of suspension that is covered in \\u00a7 28-473.\\\" In other words, it is his position that suspension of a driver's license pursuant to the Financial Responsibility Act, A. R.S. \\u00a7 28-1101, et seq., cannot be the basis for a violation under A.R.S. \\u00a7 28-692.02. He cites no authority for his position and we reject it. The language of A.R.S. \\u00a7 28-692.02 makes no distinction as to the basis for suspension of the driver's license and we decline to read into the statute, as appellant would have us do, the requirement that the license had been suspended because of driving violations. The statutory language is clear and expresses a legislative intent to punish more severely persons whose licenses have been suspended, for whatever reason, and who drive a vehicle while intoxicated during the suspension period.\\nAppellant's conviction of an offense different from that with which he was charged was proper if it was an included offense. The test for determining whether an offense is included in another is whether the offense charged cannot be committed without necessarily committing the included offense. State v. Thorn-brugh, 24 Ariz.App. 573, 540 P.2d 192 (1975). Appellant's conviction of operating a motor vehicle while his license was suspended meets this test.\\nAffirmed.\\nHOWARD, C. J., and HATHAWAY, J., concur.\\nNOTE: This cause was decided J>y the Judges of Division Two as authorized by A.R.S. \\u00a7 12-120(E).\"}"

arizona/1237877.json

@@ -0,0 +1 @@
+"{\"id\": \"1237877\", \"name\": \"James R. HENDERSON and Margaret B. Henderson, his wife, Appellants, v. LAS CRUCES PRODUCTION CREDIT ASSOCIATION, Luther M. Duke and Kathryn Duke, his wife, Joseph R. Vallee and Kathryn M. Vallee, his wife, E. H. Shumway and Lola M. Shumway, his wife, L. D. Shumway, and Transamerica Title Insurance Company, formerly Phoenix Title and Trust Company, Appellees\", \"name_abbreviation\": \"Henderson v. Las Cruces Production Credit Ass'n\", \"decision_date\": \"1967-12-14\", \"docket_number\": \"No. 1 CA-CIV 482\", \"first_page\": \"549\", \"last_page\": \"556\", \"citations\": \"6 Ariz. App. 549\", \"volume\": \"6\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:49:43.321703+00:00\", \"provenance\": \"CAP\", \"judges\": \"CAMERON, C. J., and DONOFRIO, J., concur.\", \"parties\": \"James R. HENDERSON and Margaret B. Henderson, his wife, Appellants, v. LAS CRUCES PRODUCTION CREDIT ASSOCIATION, Luther M. Duke and Kathryn Duke, his wife, Joseph R. Vallee and Kathryn M. Vallee, his wife, E. H. Shumway and Lola M. Shumway, his wife, L. D. Shumway, and Transamerica Title Insurance Company, formerly Phoenix Title and Trust Company, Appellees.\", \"head_matter\": \"435 P.2d 56\\nJames R. HENDERSON and Margaret B. Henderson, his wife, Appellants, v. LAS CRUCES PRODUCTION CREDIT ASSOCIATION, Luther M. Duke and Kathryn Duke, his wife, Joseph R. Vallee and Kathryn M. Vallee, his wife, E. H. Shumway and Lola M. Shumway, his wife, L. D. Shumway, and Transamerica Title Insurance Company, formerly Phoenix Title and Trust Company, Appellees.\\nNo. 1 CA-CIV 482.\\nCourt of Appeals of Arizona. Division 1.\\nDec. 14, 1967.\\nRehearing Denied Jan. 17, 1968.\\nReview Denied March 5, 1968.\\nDivelbiss & Gage, Phoenix, for appellants.\\nO\\u2019Connor, Cavanagh, Anderson, Westover, Killingsworth, & Beshears, by Thomas A. McGuire, Phoenix, John P. Otto, Alamagordo, N. M., James T. Martin, Jr., Las Cruces, N. M., for appellee, Las Cruces Production Credit Association.\\nMarks & Marks, by Royal D. Marks, Phoenix, for appellee, Transamerica Title Ins. Co.\", \"word_count\": \"4211\", \"char_count\": \"25214\", \"text\": \"STEVENS, Judge,\\nThis appeal involves a contest between a creditor of the seller of real estate by a recorded real estate agreement, the creditor having served a writ of garnishment upon an escrow holder, and a grantee-assignee of the seller. Both claim to be entitled to receive the installment payments thereafter due under the agreement of sale. The identification of the parties and the chronology of events are important.\\n' The Las Cruces Production Credit Association is a New Mexico Corporation and was the plaintiff in an action filed in the Superior Court for Maricopa County being the action out of which this appeal arose. This party will be referred to as Las Cruces.\\nMr. and Mrs. Duke were judgment debtors in a New Mexico judgment wherein Las Cruces was the judgment creditor. They will collectively be referred to as Duke. Duke sold land located in Gila County, Arizona to the Vallees and to the Shumways, who are collectively hereinafter referred to as Vallee-Shumway. The abstract of record and the briefs of the parties in connection with this appeal were served upon Duke and upon Vallee-Shumway. None of these parties to the Superior Court action, all of whom were named in the notice of appeal, have appeared in this Court in relation to this appeal. Although the record discloses that during the progress of the case Mr. Duke died and Mrs. Duke qualified as the executrix of his estate, the names will be carried forward herein merely under the designation of Duke.\\nThe appellee, Transamerica Title Insurance Company, was formerly the Phoenix Title and Trust Company, and will hereinafter be referred to as Transamerica even though portions of the transactions which are vital to the consideration of this opinion occurred during the time that the business of this corporation was transacted under the name of Phoenix Title and Trust Company.\\nThe appellants, Mr. and Mrs. Henderson, will be collectively referred to as Henderson.\\nUnder date of 15 February 1963, Duke as seller and Vallee-Shumway as buyer, executed escrow instructions in the Phoenix office of Transamerica and these instructions were assigned No. 597290. The Phoenix office is located in Maricopa County, Arizona of which Phoenix is the County seat. The escrow related to real property located in Gila County, Arizona of which Globe is the County seat. There Is evidence in the file that Transamerica also maintained an office in Globe, Arizona. Under the same date the same parties entered into a formal written agreement, the agreement and the escrow instructions relating to the same piece of property. The agreement was recorded in the office of the County Recorder of Gila County on 7 March 1963 in Docket 147 beginning at Page 379. The escrow instructions were not recorded. The agreement contains some references to Transamerica, these being in the printed portion of the agreement as distinguished from the typed portion of the agreement. The agreement makes reference to an escrow. The agreement is silent as to the escrow number and it is silent as to the Transamerica office wherein the escrow was established. The escrow instructions incorporate the agreement by reference but the agreement does not purport to incorporate the escrow instructions. The terms of payment in the two documents are not identical in language, the difference not being material in connection with the issues before us.\\nThe agreement recited the consideration. The buyers were to take specified action to secure the relase of three identified recorded mortgages. The agreement did not require that the released documents be submitted to Transamerica. A Transamerica escrow with a number differing from the escrow now in question, was expressly can-celled by the agreement. Reference was made to the Flake-Porter Agreement, an agreement relating to a grazing permit on the premises involved in this transaction, recognizing that certain credits might arise therefrom, these to be handled without reference to the escrow. The agreement 'provided that in the event that there were credits arising from the cancellation of the Flake-Porter contract, these could be deducted from the first installment which was to be paid under the agreement which is now before this Court. The printed portion of the agreement contains a fire insurance requirement and we are not advised as to whether the property was improved. If this is an applicable part of the agreement, the requirement specified that the insurance policy be deposited with Transamerica.\\nIn addition to the various obligations imposed upon the respective parties, the agreement recited a cash consideration in the sum of $32,000 with a recitation that $10,000 thereof \\\"has been deposited in escrow by the Buyers to the credit of the Sellers\\\". In relation to the unpaid balance of $22,000 the agreement specified:\\n\\\"The Buyers shall pay to the Sellers the sum of Twenty-two Thousand and no/100 Dollars ($22,000.00), without interest, provided the same is paid to the Sellers on or before November 1st, 1964. In the event all is not paid by November 1st, 1964, the Buyers shall then pay to the Sellers the sum of Seven Thousand, Three Hundred and Thirty-three and no/100 Dollars ($7,333.00) to apply against the principal balance, and the remaining unpaid balance shall then commence bearing interest at the rate of six per cent (6%) per annum and shall thereafter be paid one-half (1/2) of principal plus accrued interest, on November 1st, 1965, and the balance of principal, plus accrued interest, on November 1st, 1966.\\\"\\nIt is interesting to note that the escrow instructions provide:\\n\\\"BALANCE OF_$22,000.00\\nEvidenced by Agreement for sale Payable as follows: SEE OVER\\\"\\n\\\"FUTURE PAYMENTS UNDER AGREEMENT FOR SALE . TO BE PAID TO seller herein\\\"\\nThe schedule of payments indicated by the \\\"SEE OVER\\\" reference is silent as to any requirement that the payments be made through Transamerica. The escrow instructions contain an acceleration clause in the event of a transfer of interest by the buyer which clause does not appear in the agreement.\\nThe agreement contained two printed par-' agraphs which are strongly urged upon this Court.\\n\\\"The Warranty Deed of Seller conveying the herein described property to Buyer, subject to liens, encumbrances, reservations, restrictions and exceptions affecting the title to said property has been delivered in escrow with the Phoenix Title and Trust Company, and shall, as provided by the escrow instructions given to said company, be delivered to Buyer upon fulfullment of Buyer's obligation to Seller under the terms of this agreement.\\nl$i \\u00cdJ\\u00cd \\u00cd\\u00a1C \\u00edf\\u00ed i|i\\n\\\"No transfer or assignment of any rights hereunder shall be made by anyone having an interest herein, unless made in such manner and accompanied by such deeds and other instruments as shall be required by the Phoenix Title and Trust Company, nor until its regular escrow fee and other costs including its charge for the issuance of a new Title Insurance Policy shall have been fully paid, and all instruments deposited in escrow with it.\\\"\\nThere is reference in the escrow instructions which might imply that payments _ could be made through Transamerica in that these instructions provided: i\\n\\\"ANNUAL COLLECTION CHARGES assumed as is\\nFollowed by an \\\"X\\\" under the column heading \\\"Buyer\\\", indicating buyer's obligation to pay these charges in the event that money is paid through a Transamerica escrow.\\nThe issues in the Superior Court were determined based upon carefully documented adverse motions for summary judgment and the record does not disclose any actual knowledge of the terms of the escrow instructions other than the knowledge enjoyed by Transamerica and the signatories thereto, Duke and Vallee-Shumway. In our opinion, the escrow instructions were a private document and not a public record.\\nOn 12 April 1963, Las Cruces filed a suit in the Superior Court for Maricopa County wherein the Dukes were the defendants basing its claim for relief upon the New Mexico judgment. In proper time, a default judgment was entered in favor of Las Cruces, this judgment having been entered on 23 May 1963, in the sum of $16,805.19, plus interest. There is no contest as to the validity of this judgment. On 10 June 1963, Las Cruces caused a writ of garnishment to issue naming therein seven banks and six title companies including Transamerica. In connection with the motions for summary judgment, Transamerica attached as an exhibit its office copy of the writ of garnishment which was served upon it and it is interesting to note that this copy disclosed a list of no less than 14 different offices as well as several departments of the company, all in Maricopa County. There were checked off before the answer to the writ of garnishment was filed. The Transamerica answer to the writ of garnishment was filed on 20 June 1963 and recited in part:\\n\\\"That the garnishee-defendant, PHOENIX TITLE AND TRUST COMPANY, a corporation Is holding for collection, under its Escrow No. 597290, a contract of sale under which contract the defendants, LUTHER M. DUKE and KATHRYN DUKE, his wife, sold certain real property to JOSEPH R. VALLEE, et ah, and under which contract the sellers, LUTHER M. DUKE and KATHRYN DUKE, his wife, are to receive a total amount of $22,000.00 in annual payments of $7,333.00 beginning November 1, 1964, with interest at the rate of 6% per annum\\nThereafter judgment was entered against Transamerica on its answer in garnishment in the amount of the Las Cruces\\u2014Duke judgment, with interest as provided in said judgment. The judgment against Transamerica as garnishee recites:\\n\\\" until the total of such indebtedness shall be paid out of Escrow No. 597290 held by the defendant-garnishee' Phoenix Title & Trust Company, as such funds under the above numbered escrow shall come into the possession of defendant-garnishee pursuant to Escrow No. 579290, and not otherwise.\\\"\\nIt is clear from the language of the judgment that Transamerica's liability was limited to the funds which it actually received in escrow. This judgment was prepared on the legal paper of the attorneys for Las Cruces and we must presume knowledge as to its content. The judgment was signed on 23 August 1963 and filed with the Clerk of the Court three days later.\\nTransamerica did not notify Duke, the seller or Vallee-Shumway the buyer, with reference to the garnishment, the answer or the judgment of 23 August 1963. Las Cruces took no steps to notify the parties to the agreement until September 1965, as more particularly appears later in this opinion.\\nOn 20 June 1963, Duke assigned all of their interests in the payment due in November 1964 to Thorne, not a party to this action.\\nOn 2 August 1963, Duke sold and assigned to Henderson the installments coming due in November 1965 and November 1966. In addition to the assignment, Duke executed a warranty deed to Henderson describing the real property in question. Both of these documents were recorded in the office of the County Recorder of Gila County on 6 August 1963. The assignment recited a consideration of $12,727; it briefly described the agreement and the County wherein it was recorded; it did not make express reference to the book and page of the recording of the agreement.\\nIn March 1965, Las Cruces caused a writ of execution to issue based upon the Las Cruces\\u2014Transamerica garnishment judgment. Pursuant to this writ the Sheriff of Maricopa Cotinty sold the agreement to Las Cruces for $14,242.10 establishing a deficiency judgment in the sum of $4,379.24, which deficiency included an interest item in the sum of $1,697.31. Thereafter, and for the first time, an effort was made to advise the buyers as to the Las Cruces claim to the proceeds of the agreement. This action was taken on 23 September 1965 when writs of garnishment addressed to Vallee-Shumway were issued. They filed a joint answer in garnishment disclosing the June 1963 Duke\\u2014Thorne agreement and the August 1963 Duke\\u2014Henderson agreement. Val-lee-Shumway by their answers expressed a willingness to pay the unpaid portion of the agreement to whomsoever was entitled to the money. On 4 November 1965, Vallee-Shumway paid the sum of $8,213.67 into the office of the Clerk of the Superior Court the receipt for this sum being a part of the record on appeal.\\nOn 2 December 1965, Henderson took their first steps toward intervention which was eventually granted. On 13 January 1966, Duke filed their disclaimer reciting both the Thorne and Henderson transactions and asserting that the Dukes no longer claimed an interest. Thereafter, Las Cruces and Henderson filed their respective motions for summary judgment. The trial court granted the Las Cruces motion and denied the Henderson motion. An appropriate formal written judgment was signed and filed and this appeal followed. After the giving of the notice of appeal, Transamerica was granted leave to pay into the office of the Clerk of the Superior Court those monies held by it in relation to this transaction. The amount is not specified in the order nor is the Clerk's receipt for the sum so deposited a part of the file forwarded to this Court and this Court is not informed as to the date or amount of the deposit.\\nThe first issue to be disposed of is the sufficiency of the Henderson supersedeas bond.\\nRule 73 (k) (2) of the Rules of Civil Procedure, 16 A.R.S., under circumstances specified in the Rule, permits a supersedeas bond in a sum less than the full amount of the judgment. Hackin v. Superior Court, 102 Ariz. 93, 425 P.2d 420 (1967). The trial court fixed the supersedeas bond in the sum of $2,000.00. The Hendersons secured a court order authorizing them to place with the Clerk of the Superior Court a savings passbook with a Savings and Loan Association wherein the balance was $2,-000.00. The savings and loan association was not permitted to disburse these funds without the authority of the Clerk of the Superior Court. Notice of this action was given to all parties. A.R.S. Section 7-107 is as follows:\\n\\\"7-107. Sufficiency of bond; objection\\nIn an action or proceeding in a state court, when a bond is required or permitted to be given, the adverse party may object to its sufficiency at any time within three days after receiving notice of giving the bond, by serving the adverse party, or the officer who takes the bond, with a written notice that he does not accept the bond. A failure to serve the notice shall be deemed an acceptance of the bond, and the officer taking it shall be exonerated from liability.\\\"\\nNo objections were filed until the matter reached the Court of Appeals and we hold the bond to be valid and sufficient.\\nThe record discloses an absence of conflict as to the facts necessary for the determination as to whether Las Cruces or Henderson is entitled to the proceeds from the agreement. This Court is not informed as to the actual dollar amount of these proceeds which are available. When a record is presented to an appellate court which leaves no question of fact to be determined and only a question of law to be determined, this Court may direct the entry of the judgment which should have been entered in the trial court. A.R.S. \\u00a7 12-2103; State of Arizona ex rel. Conway v. State Land Department, 62 Ariz. 248, 156 P.2d 901 (1945).\\nCivil Rule 56(d) authorizes the entry of partial summary judgments as well as total summary judgments. It is our opinion that we may direct the entry of a partial summary judgment in relation to the party entitled to the proceeds, leaving for deter mination by the trial court the dollar amount which is available.\\nIt must be noted that the issues which are presented to us are framed between Las Cruces, which bases its claim on a writ of garnishment, and an execution sale, and Hendersons who base their claim on an assignment and a warranty deed. The sellers have disclaimed any further interest. Val-lee-Shumway, the buyers, do not urge that they have been damaged. Transamerica seeks to uphold its view as to the sanctity of the agreement and the escrow instructions. Transamerica does not urge that it has been damaged. Under these circumstances, the issues before us are limited to our consideration of the respective rights of Las Cruces and Henderson based upon the record.\\nThe appellees urge that the Duke-Henderson assignment is not that type of document which may be recorded. They further urge that even though the County Recorder of Gila County performed all of the steps essential to recording, no legal notice of its contents was given to the public or to the appellees. We need not answer this contention in view of the recording of the Duke-Henderson warranty deed, a matter which we will treat later in this opinion. The escrow instructions were not acknowledged, a requirement in connection with recording, and no effort was made to record .them. A.R.S. Section 33-411, subsec. B, specifies:\\n\\\"B. An instrument shall not be deemed lawfully recorded unless it has been previously acknowledged in the manner prescribed in this chapter except in the case of master mortgages as provided in \\u00a7 33-415.\\\"\\nA.R.S. Section 33^415 authorizes the recording of master mortgages and Subsection C thereof specifies:\\n\\\"C. Thereafter any provisions of a recorded master mortgage may be included for any and all purposes in a mortgage by reference therein to any of such provisions without setting them forth in full, if the master mortgage is of record in the county in which the mortgage adopting or including by reference any provisions thereof is recorded.\\\"\\nWe hold that even had the properly recorded agreement between Duke and Vallee-Shumway referred to the Transamerica escrow by number and by the office of the company wherein the escrow instructions were of record, a person searching the recorded title would not thereby have had legal notice as to its contents. As before stated, the escrow instructions were a private record maintained in an office of a private business corporation and they are not subject to inspection as a matter of right by any curious person who wished to see them. Public records are subject to that inspection. A person searching the title to real property located in Gila County has the right to find all public records in Gila County with limited exceptions. One exception would be the official probate file in a probate relating to real property in more than one county. Even in this situation the probate file is a public record subj ect to the inspection of the curious as well as those with an actual interest in the property.\\nWe have pointed out the content of the escrow instructions only for the reason that had they been examined by Henderson, they would not have disclosed an obligation on the part of Vallee-Shumway to make the payments called for in the Duke agreement through a Transamerica escrow.\\nThere are two Arizona cases which are cited by all parties to this appeal, Sabin v. Rauch, 75 Ariz. 275, 255 P.2d 206 (1953) and Weir v. Galbraith, 92 Ariz. 279, 376 P. 2d 396 (1962). The appellees urge that these cases require an affirmance of the trial court. We do not agree.\\nOne issue in Sabin was the sellers demand for specific performance in an action between the parties to the agreement. The buyer defended on the basis that the seller could not deliver a merchantable title. This fact situation is vastly different from the position of the parties in the cause now under consideration. In Sabin, in addition to the agreement which was the subject of the request for specific performance, there were two additional agreements of sale in the chain of title, the sellers interest in one having been transferred to Raney and the sellers interest In the other having been transferred to Glick. These transfers had been effected by joint tenancy deeds. In relation to the transfer of the sellers interest in the earlier agreements the Supreme Court stated on page 279 of the Arizona Reports, 255 P.2d on page 208 :\\n\\\"It appears from the Stone and Hill contracts that the Phoenix Title and Trust Company is the escrow agent in both of these transactions; that the balances due thereunder are to be paid to it, and that deeds from Stone and Hill have been delivered to the escrow agent for delivery to the purchasers therein when such balances are paid.\\\"\\nThis situation does not appear in the cause now under consideration. On page 280 of the Arizona Reports, 255 P.2d on page 208 the Supreme Court further stated:\\n\\\"Raney and Glick by virtue of their joint tenancy deeds are no doubt entitled to receive these payments\\nThus we see that by the warranty deed from Duke-Henderson assignment. It is for this came entitled to the future payments under the agreement even in the absence of the Duke-Henderson assignment. It is for this reason that we have heretofore stated that we need not decide the contentions of the appellees that the Duke-Henderson assignment was not a document which could be recorded and that the placing of the same in the records of the Gila County recorder was not notice of its contents.\\nThe Weir case involves the garnishment of a title company in relation to an agreement of sale of real property. The writ was directed not only to the title company but also to all persons interested in the agreement of sale. It was pointed out by counsel that on page 287 of the Arizona Reports, 376 P.2d on page 401 referring to the agreement for the sale of real property, the Supreme Court stated: \\\"It is in the usual form\\\". Earlier in the opinion on page 282 of the Arizona Reports, 376 P.2d on page 398 the Supreme Court stated:\\n\\\"This contract was placed with the Arizona Title Guarantee and Trust Company for collection and all payments were made to that company.\\\" '\\nThe reply brief of the appellants quotes the evidence in the Weir case as follows:\\n\\\"$19,000.00 to be paid to Arizona Title Guarantee & Trust Company for the benefit of the Seller as follows:\\\"\\nOn oral argument of the case now under consideration one of the attorneys for the appellees acknowledged that this was an accurate quotation. Thus from the evidence before the Court in Weir, and from the language of the opinion, we note a fact situation which differs materially from the case now under consideration. The agreement before us required the buyer to pay the seller, as did the escrow instructions, and a fair reading of the agreement did not place a person searching the records in Gila County on notice that the payments were required to be made through a Transamerica escrow. Apparently, Duke did not so understand the agreement for Duke sold a fractional interest to Thorne and the balance to Henderson.\\nThe appellants do not quarrel with the rule in Weir relative to the obligation of Transamerica to hold payments received under the agreement, if and when received, holding them subject to the writ of garnishment, the agreement containing a buyers absolute and not a conditional obligation to pay.\\nWe come then to the consideration of the above quoted printed portion of the agreement beginning with the words \\\"No transfer or assignment of any rights hereunder\\\" and ending with the words, \\\"all instruments deposited in escrow with it\\\". This paragraph is not urged by the seller or by the buyer. This paragraph protects Transamerica from a transferee's demand for the title policy which was purchased in connection with the escrow for the benefit of the original buyer. We hold that under the posture of this case, the Hendersons were within their rights when they purchased the sellers' remaining interest in the agreement and that they acquired title to that remaining interest.\\nThis case is reversed with instructions to enter judgment granting the Henderson motion for summary judgment, a judgment which will establish that the Hendersons are entitled to the proceeds from the last two installments of the agreement. This entitlement is subject to the garnishees answer fees heretofore allowed, and to the fees which have been earned by Transamerica in connection with its handling of the transaction. The trial court is directed to ascertain the sum of money available to the Hendersons, incorporating the same in the judgment heretofore directed, together with all orders and directives necessary and proper for the payment of such judgment to the Hendersons.\\nCAMERON, C. J., and DONOFRIO, J., concur.\"}"

arizona/1237913.json

@@ -0,0 +1 @@
+"{\"id\": \"1237913\", \"name\": \"The STATE of Arizona, Appellee, v. John Leroy JONES and Marshall L. Mount, Appellants\", \"name_abbreviation\": \"State v. Jones\", \"decision_date\": \"1967-06-20\", \"docket_number\": \"No. 2 CA-CR 66\", \"first_page\": \"26\", \"last_page\": \"29\", \"citations\": \"6 Ariz. App. 26\", \"volume\": \"6\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:49:43.321703+00:00\", \"provenance\": \"CAP\", \"judges\": \"MOLLOY and KRUCKER, JJ., concur.\", \"parties\": \"The STATE of Arizona, Appellee, v. John Leroy JONES and Marshall L. Mount, Appellants.\", \"head_matter\": \"429 P.2d 518\\nThe STATE of Arizona, Appellee, v. John Leroy JONES and Marshall L. Mount, Appellants.\\nNo. 2 CA-CR 66.\\nCourt of Appeals of Arizona.\\nJune 20, 1967.\\nDarrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., Phoenix, for appellee.\\nWilliam L. Berlat, Tucson, for appellant Jones.\\nAnthony B. Ching, Tucson, for appellant Mount.\", \"word_count\": \"1470\", \"char_count\": \"8570\", \"text\": \"HATHAWAY, Chief Judge.\\nThe appellants were jointly convicted \\u2022of first degree burglary and appeal therefrom.\\nSometime after the cause had been submitted to the jury for deliberation, the foreman informed the bailiff that the jury wished to rehear testimony of key witnesses .and one of the defendants. The trial judge was not present. The request was sub\\u2022mitted to another judge, who rejected it, \\\"because of the nature of the request, and 'lie not being the trial judge.\\\"\\nUpon the refusal of their request, the jury returned to deliberate. They later found both defendants guilty of first degree burglary. Each was given two years probation.\\nBoth defendants appeal from the trial \\u2022court's denial of their motion for a new trial \\u2022on the ground that the trial court erred in \\u2022denying the jury's request for testimony to be read as provided by Rule 281 of the Rules of Criminal Procedure of the State of Arizona, 17 A.R.S.; the defendant Mount also appeals from the trial court's \\u2022denial of his motion for a new trial on the ground that there was insufficient evidence to prove that he was an accomplice to defendant Jones.\\nWe hold that it was reversible error, where, in the absence of the presiding trial judge, the jury's request for pertinent testimony to be read to them was denied by a non-presiding judge, unfamiliar with the case. Rule 281 of the Arizona Rules of Criminal Procedure reads:\\n\\\"After the jurors have retired to consider their verdict, if they desire additional instruction upon any point of law arising in the action or to have any testimony about which they are in doubt or disagreement read to them, they shall upon their request be conducted into the courtroom by the officer who has them in charge and the court shall give them such additional instructions or shall order such testimony read to them. \\\"\\nThis rule, or a close facsimile, is adopted in most of the states. Although worded in mandatory form, most courts have treated it as discretionary and we believe this is the better view. The trial judge being totally familiar with the case is in the best position to control the regular procedure of the trial and to avoid time wasted through unnecessary reading of hundreds of pages of testimony to the jury and any undue prejudice which may result by the reading of any testimony. State v. Rubaka, 82 Conn. 59, 72 A. 566, 569 (1909); Bonner v. State, 82 Okl.Cr. 381, 170 P.2d 1020 (1946); and, LaMonte v. State, 145 So.2d 889 (Fla.App.1962).\\nThe Oklahoma Supreme Court, having various opportunities to rule on this point, has very cogently resolved these cases in accord with the general rule stated above. In Raab v. State, 62 Okl.Cr. 361, 71 P.2d 773 at page 780 (1937), the court said:\\n\\\" one of the greatest duties and responsibilities is the right of the defendant to have the judge before whom he is tried personally present to meet any emergency that may arise during the deliberation of his case. Often information is desired by the jury, testimony to be read, or additional instructions to be given. If the judge is not personally present, the jury may, in order not to inconvenience its own members, or not to inconvenience the judge decide that it will not have the testimony read, or the question asked, or the instructions explained; thus the right of the party being tried will not be fully protected as the law contemplates.\\\"\\nSee also 23 C.J.S. Criminal Law \\u00a7 972, p. 882; and, Grant v. State, Okl.Cr., 385 P.2d 925, 926 (1963).\\nIn dealing with the sub-issue, whether another judge could properly deny this request by the jury in the absence of the presiding trial judge, we conclude that this procedure was improper and constituted reversible error. The defendant in a criminal case, especially where a felony is involved, has the right to have the same judge continue throughout the entire proceedings against him. 23 C.J.S. Criminal Law \\u00a7 972, p. 884. In the few cases where a substitute judge has been permitted to enter a case after the proceedings have already begun the courts have been very cautious to note that this will only be permitted where the substitute judge becomes completely familiar with the entire case. State v. McCray, 189 Iowa 1239, 179 N.W. 627 (1920).\\nIn the instant case there is nothing in the record which would indicate that the judge who rejected the request of the jury was familiar with the case in any way whatsoever. His basis for the rejection of the request (\\\"because of the nature of the request, and he not being the trial judge\\\") indicates that he was not familiar with the case.\\nAlthough at times the above rules may prove inconvenient to the trial court judge, it is nonetheless his duty, upon undertaking to preside at a criminal trial, to remain in control of the cause until final disposition. In the instant case the trial court judge's absence upon the request by the jury to rehear pertinent testimony constituted a loss of control by him of the proceedings. Had he been present or available he may have allowed the hearing of the requested testimony. The parties are entitled to unfettered collaboration between the judge and the jury within their respective spheres.\\n\\\" it has been held that if such absence results in loss of personal control and supervision of the case, it is. ground for a new trial regardless of the question of prejudice, and although no objection is made at the time 24 C.J.S. Criminal Law \\u00a7 1434, p. 37.\\nSee also People v. Parisi, 276 N.Y. 97, 11 N.E.2d 554 (1937).\\nOn the issue whether Mount was an-accomplice, we find competent and substantial evidence supporting the verdict. The-evidence showed that the defendants were-observed by Hugh Downs, owner and operator of Cactus Bowl, to have arrived at the parking lot of Cactus Bowl in an automobile with three others. Downs saw the-latter three get out of the car and go into the liquor store. Soon thereafter both defendants were seen getting out of the car and splitting up, each proceeding down separate rows of cars in the lot, checking- and searching the cars. Each defendant, was witnessed by Downs, who was watching from the roof of the Cactus Bowl, to' have searched about eight cars. Then-Jones was seen to enter the 1958 Pontiac- and remove some clothing therefrom. A whistle was then heard, the origin of which is unknown, and both defendants-hurriedly returned to the car in which they had arrived. When the other three had' returned from the liquor store, Hugh Downs arrested all five of the group. Clothing, belonging to the owner of the-1958 Pontiac, in question, was found by Downs outside of and on the ground near the car in which the defendants had ar-' rived.\\nThe defendant Mount urges that no evidence was presented showing any prior conversations between Jones and himself concerning a plan to burglarize any car in the parking lot and that since the two defendants did not work side-by-side in going through the various cars, then as a matter of law the court must have found that there was insubstantial evidence to prove that he was an accomplice to Jones. However, the jury, being the finder of fact could choose to believe from the above evidence that the defendant Mount aided and abetted Jones in burglarizing the cars. See State v. Roberts, 85 Ariz. 252, 336 P.2d 151 (1959); State v. Holliday, 92 Ariz. 168, 375 P.2d 370 (1962); State v. Beardon, 99 Ariz. 1, 405 P.2d 885 (1965); and, State v. Villegas, 101 Ariz. 465, 420 P.2d 940 (1966).\\nReversed and new trial ordered.\\nMOLLOY and KRUCKER, JJ., concur.\\n. In Henderson v. State, 95 Okl.Cr. 342, 246 P.2d 393, (1952) the court reversed a conviction of manslaughter where the trial court judge, upon becoming sick, delegated the duty of receiving the verdict to another judge. The court held that the duty of receiving the verdict is a judicial act which cannot be delegated, and a verdict so received is void. See also Allen v. State, 13 Okl.Cr. 533, 165 P. 745, L.R.A.1917E, 1085 (1917).\\n. A.R.S. \\u00a7 13-139\\n\\\"All persons concerned in the commission of a crime whether it is a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid or' abet in its commission are principals in any crime so committed.\\\"\"}"

arizona/1237958.json

@@ -0,0 +1 @@
+"{\"id\": \"1237958\", \"name\": \"Orme LEWIS and J. Leslie Hansen, Appellants, v. BOARD OF ADJUSTMENTS OF the CITY OF PHOENIX, Arizona, Appellee\", \"name_abbreviation\": \"Lewis v. Board of Adjustments\", \"decision_date\": \"1967-11-20\", \"docket_number\": \"1 CA-CIV 451\", \"first_page\": \"494\", \"last_page\": \"497\", \"citations\": \"6 Ariz. App. 494\", \"volume\": \"6\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:49:43.321703+00:00\", \"provenance\": \"CAP\", \"judges\": \"CAMERON, C. J., and DONOFRIO, J., concur.\", \"parties\": \"Orme LEWIS and J. Leslie Hansen, Appellants, v. BOARD OF ADJUSTMENTS OF the CITY OF PHOENIX, Arizona, Appellee.\", \"head_matter\": \"433 P.2d 811\\nOrme LEWIS and J. Leslie Hansen, Appellants, v. BOARD OF ADJUSTMENTS OF the CITY OF PHOENIX, Arizona, Appellee.\\n1 CA-CIV 451.\\nCourt of Appeals of Arizona.\\nNov. 20, 1967.\\nRehearing Denied Dec. 11, 19671\\nReview Denied Jan. 16, 1968.\\nLewis, Roca, Beauchamp & Linton, by-James Moeller, Phoenix, for appellants.\\nRobert J. Backstein, City Atty., City of Phoenix, by David M. Lurie and Donald L_ Lindholm, Asst. City Attys., for appellee..\", \"word_count\": \"1076\", \"char_count\": \"6593\", \"text\": \"STEVENS, Judge.\\nThis Court is asked to review the judgment of the trial court which affirmed', the action of the Board of Adjustments-, of the City of Phoenix in a zoning matter. The Board of Adjustments reversed, the decision of the Zoning Inspections Supervisor. The Zoning Inspections Supervisor had held that the use of the property in question was not a legal non-conforming\\\" use.\\nThe property in question, together with, surrounding property, was annexed by the-City of Phoenix on 1 March 1960. At the-time of annexation, the Zoning Ordinance: of Maricopa County was in effect. The Maricopa County Zoning for the annexed property was \\\"Rural\\\".\\nThe general area under consideration is land adjacent to 32nd Street and south of Baseline Road. Navarro owned 665 acres, the northerly boundary of which was Baseline, the easterly boundary of which was 32nd Street and the southerly boundary of which was the Highline Canal. This canal runs generally East Northeast to West Southwest. Navarro grew citrus on his land and also maintained his home thereon.\\nAt the time of annexation, Mrs. Roberson owned a triangular parcel of approximately three acres bounded on the north by the canal and on the east by 32nd Street. The appellant Lewis owned desert acreage south of the canal and west of 32nd Street. The Lewis land adjoined the Roberson land. The appellant Hansen owned acreage the northerly boundary of which was the High-line Canal and the westerly boundary of which was 32nd Street. Hansen maintained his home on this land. The Hansen driveway entered 32nd Street approximately opposite the Roberson property. It is the Roberson property, together with an additional one acre which is referred to in this opinion as the property in question.\\nPrior to annexation, Navarro maintained and stored farm equipment on his 665 acres. This equipment was used for his own tillage and for some custom tillage. After annexation the City of Phoenix rezoned the area south of the canal in a residential classification designated as Rl-6. Parties to this appeal assume that the City Zoning became effective on 13 June 1961 although a City Zoning employee testified in the hearing before the Board of Adjustments that the zoning became effective 1 January 1962.\\nPhoenix Ordinance No. G-449 was the general Zoning Ordinance which was amended by adding the zoning in question. Section 106 of this ordinance related to non-conforming uses of annexed property. This section recognized that there could be uses at the time of annexation which were not in conformity with City Zoning and a continuation of that use was authorized by the following language contained in Section .106:\\n\\\" such use or such location or erection shall be deemed to be a non-conforming use, and may continue in the manner and to the extent that it existed or was being used at the time of such enactment or amendment\\nSubsection C of Section 106 authorized a continuance of County zoning in newly annexed areas until the City had rezoned after annexation.\\nNavarro purchased the property in question on 20 October 1960 after annexation and before City zoning.\\nIn 1965, a protest with reference to Navarro's use of the property in question was lodged with the Zoning Inspectors Supervisor of the City of Phoenix who, after investigation, rendered a decision that the use was not a legal non-conforming use. Navarro appealed to the Board of Adjustments. A very limited issue was presented to the Board of Adjustments. We can best state that issue by quoting from the appeal document.\\n\\\"Appeal, from decision of Bldg. Inspection that a non-conforming use (storage of farm equipment) has not been established on this parcel.\\\"\\nAt the Board of Adjustments hearing on 12 January 1966, evidence both pro and con was introduced as to the date of the inception of Navarro's use of the property in question and the nature and extent of that use. The only evidence before us as to limits of use permitted under Maricopa County Rural Zoning classification is the testimony of a Zoning Department employee.\\n\\\"Chairman: Rural zoning\\u2014would that permit the storage of farm equipment ?\\n\\\"Mr. Pineda: For personal use, yes.\\n\\\"Chairman: For personal use. Any other questions by Board members?\\\"\\nThe Board of Adjustments reversed the decision of the Zoning Inspectors Super visor and thereby found that a non-conforming use had been established.\\nPursuant to A.R.S. Section 9-465, subsec. E, which-reads in part as follows:\\n\\\"A person aggrieved by a decision of the board, may, ' * within thirty days after the filing of the decision in the office of the board, petition a writ of certiorari for review of the board's decision the court on final hearing may reverse or affirm, wholly or partly, or may modify the decision reviewed.\\\",\\nHansen and Lewis secured a writ of certiorari for a review by the Superior Court. It should be noted that the authority of the Superior Court is much broader under Section 9-465, subsec. E than is the grant of authority under general Arizona statutes relating to writs of certiorari which are found in A.R.S. Section 12-2001 and subsequent sections.\\nWe hold that there was sufficient evidence to warrant a finding that Navarro had established a legal non-conforming use on the property in question prior to the advent of City Zoning. In our opinion the matter which was presented to the Board of Adjustments would not require a decision as to whether Navarro's use exceeded those uses permitted by a non-conforming use. We expressly reserve the question as to whether Navarro's use encompassed uses which were not permissible under a nonconforming use.\\nAffirmed. ing and later acquired jurisdiction of same juvenile in delinquency proceeding, ex parte custodial orders subsequently rendered in divorce action and hearings conducted, and proposed to be conducted in divorce action to determine custodial matters affecting child were, and would be, so long as juvenile proceedings remained open, beyond jurisdiction of the divorce court and prohibition was proper remedy. Ariz. Const, art. 6, \\u00a7 15; A.R.S. \\u00a7 8-202.\\nCAMERON, C. J., and DONOFRIO, J., concur.\"}"

arizona/1238908.json

@@ -0,0 +1 @@
+"{\"id\": \"1238908\", \"name\": \"Raymond COOK and Maxine Cook, husband and wife, Appellants, v. William COOK, a minor, by his guardian ad litem, Richard Cook, Appellee\", \"name_abbreviation\": \"Cook v. Cook\", \"decision_date\": \"1976-03-18\", \"docket_number\": \"No. 1 CA-CIV 2755\", \"first_page\": \"163\", \"last_page\": \"170\", \"citations\": \"26 Ariz. App. 163\", \"volume\": \"26\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:53:59.853518+00:00\", \"provenance\": \"CAP\", \"judges\": \"JACOBSON, P. J., and WREN, J., concur.\", \"parties\": \"Raymond COOK and Maxine Cook, husband and wife, Appellants, v. William COOK, a minor, by his guardian ad litem, Richard Cook, Appellee.\", \"head_matter\": \"1547 P.2d 15\\nRaymond COOK and Maxine Cook, husband and wife, Appellants, v. William COOK, a minor, by his guardian ad litem, Richard Cook, Appellee.\\nNo. 1 CA-CIV 2755.\\nCourt of Appeals of Arizona, Division 1, Department B.\\nMarch 18, 1976.\\nRehearing Denied April 22, 1976.\\nReview Denied May 18, 1976.\\nJennings, Strouss & Salmon by Stephen A. Myers, Gary G. Keltner, Phoenix, for appellants.\\nStrong & Pugh by William K. Strong, Phoenix, for appellee.\", \"word_count\": \"3570\", \"char_count\": \"21562\", \"text\": \"OPINION\\nSCHROEDER, Judge.\\nThis is an appeal from a partial summary judgment in favor of the plaintiff on the issue of liability in a negligence action. It presents a threshold question as to the appealability of such an interlocutory judgment under A.R.S. \\u00a7 12-2101 (G).\\nThe case arises out of a motor vehicle accident in which the appellee, William Cook, the plaintiff below, was injured. At the time of the accident, plaintiff was a passenger in a vehicle driven by his grandfather, appellant Raymond Cook, and the accident occurred when Raymond Cook's vehicle collided in an intersection with a vehicle driven by Stan Naisbitt. Appellee William Cook sued appellants Raymond Cook, his wife, and Naisbitt for negligence.\\nAppellee, based upon the deposition of appellant Raymond Cook, moved for partial summary judgment against defendants Cook on liability. This motion was granted, and the trial court in a signed written \\\"judgment\\\" also made express findings, pursuant to Rule 54(b) of the Arizona Rules of Civil Procedure, directing that judgment be entered and determining that there appeared no just reason for delay in entering the judgment.\\nAppellants have appealed the granting of the partial summary judgment. Following filing of briefs on the merits on the appeal, appellee moved to dismiss the appeal for lack of jurisdiction. Appellee argues that this partial summary judgment on liability is merely an interlocutory order and is not appealable because it does not dispose of the entire claim of the plaintiff against the defendants Cook. There remains the issue of damages.\\nWe agree with the appellee that the judgment here cannot be considered a final judgment as to the Cooks, since it settles only the question of liability and not the amount of damages. We also agree that the insertion of 54(b) determinations in an order which was otherwise substantively unappealable under our law cannot make the order appealable. The question then becomes whether, under Arizona law, a partial summary judgment in favor of a plaintiff on liability can be an appealable order.\\nGenerally, the law in Arizona and throughout the United States favors limiting the right of appeal to review of final decisions and not of interlocutory orders. Our Arizona Supreme Court has stated the general rule that a \\\"judgment or de cree is not final which settles the cause as to a part only of the defendants\\\" and has stated that the purpose of partial summary judgment is to eliminate issues, but not to create delay and waste by necessitating piecemeal appeals. Ingalls v. Neidlinger, 70 Ariz. 40, 44, 216 P.2d 387, 389 (1950).\\nOur appeals statute, A.R.S. \\u00a7 12-2101, however, has certain exceptions to that general rule. One of those exceptions is contained in A.R.S. \\u00a7 12-2101 (G) which provides that an appeal may be taken \\\"[f]rom an interlocutory judgment which determines the rights of the parties and directs an accounting or other proceeding to determine the amount of the recovery.\\\" (Emphasis added). The issue here is whether this partial summary judgment entered against defendants Cook is such an appealable interlocutory judgment.\\nA.R.S. \\u00a7 12-2101 (G) has not had an extensive history in the Arizona appellate courts, and we are aware, of no decisions in other jurisdictions construing a similar statute. In Bolon v. Pennington, 3 Ariz. App. 433, 415 P.2d 148 (1966), Division 2 of this court held that an order setting aside a default and ordering an accounting was not appealable because it did not decide the merits of the controversy and, therefore, did not determine the \\\"rights of the parties.\\\" Tucson Telco Federal Credit Union v. Bowser, 6 Ariz.App. 10, 429 P.2d 502, opn. supp., rehearing denied, 6 Ariz.App. 190, 431 P.2d 85 (1967), also decided by Division 2, involved an alleged wrongful repossession of an automobile. Partial summary judgment had been entered for the plaintiff determining that there had been a wrongful repossession. The defendant appealed before there had been any determination of damages. The Court, in its supplemental opinion, held that that partial summary judgment did not fall within A.R.S. \\u00a7 12-2101 (G). Its holding rested upon the fact that a claim for punitive damages was involved, and, therefore, unresolved questions remained as to the nature of the conduct of the defendant.\\nAfter Telco, Division 2 decided Cordova v. City of Tucson, 15 Ariz.App. 469, 489 P. 2d 727 (1971). That-was a condemnation case in which the trial court had entered a judgment that the city was entitled to take the property, and that the only remaining issue was the amount of compensation. The Court dismissed the appeal holding that condemnation orders are not appealable, and that in condemnation cases an appeal must await final judgment. The holding in Cordova was approved by our Supreme Court in Rogers v. Salt River Project Agricultural Improvement & Power Dist., 110 Ariz. 279, 517 P.2d 1275 (1974), a case similarly holding on general condemnation law principles that a condemnation order is not appealable.\\nThese Arizona cases do not deal directly with appealability under A.R.S. \\u00a7 12-2101 (G) after a favorable liability determination for the plaintiff in a bifurcated trial or, as here, partial summary judgment for plaintiff in a negligence action. Appellant urges that the plain language of the statute makes this signed partial summary judgment on liability appealable, since the statute provides for interlocutory appeal where there has been a judgment which \\\"determines the rights of the parties and directs an accounting or other proceeding to determine the amount of recovery.\\\"\\nAppellee, however, in his motion to dismiss the appeal, would strictly limit the type of actions to which that language applies to those cases in which there remain only equitable proceedings to determine the amount of recovery. He argues that it should not apply where, as here, there is a remaining trial for damages. Appellee asks us to apply the ejusdem generis rule to limit the type of proceedings in which appeals should be allowed.\\nWe cannot accept the narrow interpretation which appellee urges. In the first place, we are unable to identify any substantial number of traditionally equitable proceedings for determining recovery apart from an accounting. Secondly, A.R.S. \\u00a7 12-2101 separately provides for interlocutory appeal in other selected types of traditionally equitable remedies. See A.R.S. \\u00a7 12-2101 (F)(2) (injunctions) and \\u00a7 12-2101(H) (partitions). Finally, in view of the abolition of separate courts of equity and law and the abolition of distinctions between law and equity in the Rules of Civil Procedure, this statute should not be construed on the basis of historical considerations which are becoming increasingly outmoded. In Arizona, the movement to abolish artificial distinctions between law and equity has roots which antedate statehood:\\n\\\"As we have no courts of equity nor of law in this territory, and as the legislature has for a long time strenuously sought to abolish the distinction in procedure between 'equity' and 'law,' the courts and the bar should dismiss from their minds the idea of 'suits in equity' or 'actions at law,' so far as they tend to preserve that distinction. Our statute denominates all proceedings in courts of justice whereby a civil remedy for a wrong is sought, except in some special proceedings, civil suits. The courts and bar have clung so tenaciously to the observance of the distinction that in many instances the plain administration of justice has been thwarted.\\\" Rees v. Rhodes, 3 Ariz. 235, 237, 73 P. 446 (1890).\\nMoreover, appellate review may be highly desirable in some interlocutory liability determinations, as for example in cases where a serious question exists as to liability, and a lengthy and possibly unnecessary trial of damages might be averted by interlocutory review. We note also that Arizona, unlike the federal court system, has no statutory provision permitting the trial court to certify questions in civil cases to the appellate court for interlocutory appellate review. See 28 U.S.C, \\u00a7 1292(b).\\nNevertheless, we are unable to adopt the full force of the appellant's position here, which would be to permit an appeal from every signed order of partial summary judgment on liability. We believe that such a result would be contrary to the spirit of our court's holdings in Telco, supra, and Rogers, supra, and contrary to the general policy of avoiding piecemeal appeals as enunciated in Ingalls v. Neidlinger, supra. We doubt that an ordinary partial summary judgment on liability in and of itself, without some indication of finality on the liability issue, should be considered a judgment \\\"determining the rights of the parties\\\", within the meaning of A.R.S. \\u00a7 12-2101 (G). This is because the court retains jurisdiction to modify any interlocutory order at any time prior to final judgment. See Coffman v. Federal Laboratories, Inc., 171 F.2d 94, 98 (3rd Cir. 1948), cert. denied 336 U.S. 913, 69 S.Ct. 603, 93 L.Ed. 1076 (1949); Gerstle v. Gamble-Skogmo, Inc., 298 F.Supp. 66 (E.D.N.Y.1969); Wright and Miller, Federal Practice & Procedure, Civil \\u00a7 2737, pp. 680-81.\\nIn addition, we wish to avoid the possible uncertainty which might flow from such a broad holding. We should not encourage filing of premature appeals where there is a serious question as to whether there has been an interlocutory \\\"determination of the rights of the parties\\\" or whether the only remaining issue is in fact the \\\"amount of recovery.\\\" We are also troubled by possible disputes over whether a defendant who fails to take an interlocutory appeal thereafter loses his right to question the liability determination.\\nWe hold therefore that, under the language of A.R.S. \\u00a7 12-2101 (G), a summary judgment in favor of a plaintiff on a question of liability can be appealable. We further hold that the particular language of this statute requires that the interlocutory judgment, in order to be appealable, must in reality reflect a final \\\"determination of the rights of the parties\\\" with respect to liability, and a determination that the only question remaining to be resolved is the \\\"amount of recovery.\\\" To fulfill these requirements, the summary judgment appealed from must not only be signed by the judge, as required by Rule 58, Arizona Rules of Civil Procedure, but must also contain some additional express language indicating finality.\\nIn the instant case, the trial court has made an express detemination that the partial summary judgment is a final determination on the question of liability by including the language required by Rule 54(b) for appeal in multiple party cases. Rule 54(b), of course, is not by its express terms applicable to appealability under \\u00a7 12-2101 (G). Nevertheless, the Court here has expressly directed the judgment be entered and has found that no just reason for delay in entering the judgment exists. It has, therefore, indicated the finality of the judgment on the liability issue.\\nIn order to avoid confusion by the creation of overly rigid formal requirements, we believe that in any case in which the provisions of A.R.S. \\u00a7 12-2101 (G) might apply, the inclusion in the interlocutory judgment of language similar to that provided in Rule 54(b) should be a sufficient indication of the court's determination that the disposition of the liability question is final and that the only matter remaining is the question of damages. The trial court should, however, exercise its sound discretion in such certifications in order to avoid hardship, delay and unnecessary appeals.\\nIn sum, if an interlocutory judgment with respect to liability does not contain either language similar to that provided in Rule 54(b) or other express language indicating that the judgment is a determination of the rights of the parties and that the only issue remaining is the amount of recovery, then the interlocutory judgment should not be appealable.\\nIn the instant case, the interlocutory judgment contained language of finality in accordance with Rule 54(b) and is, therefore, appealable. Accordingly, the motion to dismiss the appeal in the case is denied and we reach the merits of the appeal.\\nThe trial court entered summary judgment on liability against the defendants Cook and in favor of the plaintiff on the basis of the deposition of the defendant Raymond Cook. He stated that when he approached the intersection just before the collision, he saw a stop sign, but he pro ceeded into the intersection. He also testified in his deposition that there was apparently construction in progress at the intersection, and that a ditch with a ridge at least partially blocked his vision. The collision with the Naisbitt car occurred in the middle of the intersection.\\nAppellee moved for summary judgment on the ground that since, by the deposition, the appellant Raymond Cook had admitted that he had seen a stop sign and had failed to stop, his action was negligence per se. The appellants filed no written response to the motion, nor did they offer any controverting evidence by way of affidavit or otherwise. Appellants now challenge* the granting of plaintiff's motion for partial summary judgment.\\nAppellants argue that the defendant Cook's failure to stop for the stop sign in this case cannot be considered negligence per se because the plaintiff did not show that the stop sign was in its proper place. They rely upon the provisions of A.R.S. \\u00a7 28-644(B), which provides in relevant part:\\n\\\"B. No provision of this chapter for which signs are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official sign is not in proper position and sufficiently legible to be. seen by an ordinarily observant person.\\\"\\nThe deposition of Mr. Cook, however, does not contain any showing that the stop sign was in an improper place or that it was insufficiently legible to be seen. The most that Mr. Cook was able to say was that the sign \\\"wasn't sitting in the normal place,\\\" and that it \\\"was kind of back behind the ditch bank.\\\" He did not describe with any particularity how, if at all, the stop sign was improper, and in fact he was unable to describe exactly where it was positioned. Rule 56(e) of the Rules of Civil Procedure requires in part:\\n\\\"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his . pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.\\\" (Emphasis supplied).\\nIn view of Mr. Cook's admission that he did see the sign but failed to stop, and in view of the total lack of any evidence that the sign was not in the proper position as required by any pertinent regulations, we must agree with the trial court that there was no material issue of fact with respect to the proper positioning of the sign so as to bring into play the provisions of A.R.S. \\u00a7 28-644(B).\\nAppellants argue that it was the burden of plaintiff in his case in chief to show that the sign was in the proper position, and that absent proof in the nature of measurements showing that the exact position of the sign was in accordance with applicable regulations, the plaintiff has not demonstrated the requisite elements of negligence. We cannot agree that any such affirmative burden rests on the plaintiff in a negligence action when, as here, it is uncontroverted that defendant saw the sign and there is no showing by the defendant that the sign was improperly placed. We decline to hold that in every case in which a defendant fails to stop at a stop sign, the plaintiff must as an element of his claim establish that the stop sign was in the \\\"proper position\\\" at the time of the accident. Such a burden is far heavier than anything suggested in A.R.S. \\u00a7 28-644(B). The presumption at law is that, public officials correctly perform their express duties. Cagle v. Home Insurance Co., 14 Ariz.App. 360, 366, 483 P.2d 592, 598 (1971). At the very least, it is incumbent upon the defendant in such a case to come forward with some evidence of improper placement before a material question of fact is created.\\nAppellants further argue that there are material questions of fact with respect to whether the failure to heed the stop sign was the proximate cause of the accident. Appellees suggest that the negligence of Mr. Naisbitt, or the obstruction of the view by the ridge of earth, may have been intervening causes of the accident. We see nothing in this record sufficient to create a material question as to these matters. Again, once the plaintiff established the defendant's negligence, it was incumbent upon the defendant in responding to the motion for summary judgment to submit some evidence sufficient to create a material question of fact. See Nyberg v. Salt River Project Agricultural Improvement & Power District, 91 Ariz. 397, 372 P.2d 727 (1962) ; Siner v. Stewart, 9 Ariz.App. 101, 449 P.2d 635 (1969).\\nAppellant also urges that it was improper to grant partial summary judgment against Mrs. Cook. However, Mr. Cook's deposition establishes that the appellants, Mr. and Mrs. Cook, had been married for many years, and that the collision occurred while they were returning from a family excursion. There was no contrary showing. The activity out of which the negligence arose, therefore, was for the benefit of the community, and the community is liable for the negligent conduct of the husband. See Hays v. Richardson, 95 Ariz. 64, 386 P.2d 791 (1963); Reckart v. Avra Valley Air, Inc., 19 Ariz.App. 538, 509 P.2d 231 (1973).\\nFinally, appellants contend that plaintiff may have been contributorily negligent in failing to wear a seat belt. Contributory negligence is, of course, a defense which must be affirmatively pleaded. Rule 8(d), Arizona Rules of Civil Procedure. The record in this case reflects that the defense was not raised in the answer. A motion to amend the answer was offered but was then withdrawn prior to the entry of judgment in this case. Accordingly, since the defense was never pleaded, there is no question properly before us with respect to its applicability in this case.\\nThe judgment is affirmed.\\nJACOBSON, P. J., and WREN, J., concur.\\n. The signed partial summary judgment entered by the court provided as follows:\\n\\\"A Motion for Partial Summary Judgment having been regularly made by the plaintiff in this case, now, after due deliberation and consideration of the premises, having found that there is no genuine issue as to any material fact with respect to the liability of defendants COOK to be submitted, and having concluded that said plaintiff is entitled to Partial Judgment as a matter of law.\\n\\\"IT IS ORDERED, ADJUDGED AND DECREED\\n\\\"1. That the Motion for Partial Summary Judgment of the plaintiff be, and the same is hereby granted and that Partial Judgment be entered herein in said plaintiff's favor and against the defendants COOK on the issue of liability;\\n\\\"2. That this Judgment is specifically entered pursuant to Rule 54(b) of the Arizona Rules of Civil Procedure, and it is hereby directed that said Judgment be so entered, no just reason appearing for delay in entering this Judgment.\\\"\\n. We have discovered two cases in which our courts have held orders appealable under A.R.S. \\u00a7 12-2101 (G). In Miller v. Superior Court, 88 Ariz. 349, 356 P.2d 699 (1960), our Supreme Court held that an order re-, moving a trustee was appealable either under the provisions of A.R.S. \\u00a7 12-2101 (G) or under A.R.S. \\u00a7 12-2101(E) relating to appeal from \\\"a final order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment.\\\" The court also cited general principles applicable to the appealability of orders removing a trustee. Schultz v. Hinshaw, 20 Ariz.App. 524, 514 P.2d 277 (1973), involved a breach of contract action in which the trial court had entered an interlocutory order declaring the relationship of the parties and directing an accounting. The court held the order was appealable under A.R.S. \\u00a7 12-2101 (G).\\n. In Arizona, apart from the exceptions listed in this \\u00a7 12-2101, of which subparagraph (G) is an example, and apart from the limited questions which can be presented on special action where review is discretionary with the appellate court, interlocutory appellate review is not available in civil cases.\\n. These are the sorts of problems which plagued our courts in multiple party and multiple claim cases prior to the adoption of the present Rule 54(b). See generally 10 Wright & Miller \\u00a7 2653.\\n. We reiterate that the mere inclusion of such language in an otherwise substantively unappealable interlocutory order cannot make that order appealable. For example, an order denying partial summary judgment on liability is not appealable under our statutes. See Safeway Stores, Inc. v. Maricopa County Superior Court, 19 Ariz.App. 210, 505 P.2d 1383 (1973). No language in the trial court's order of denial can make it so.\"}"

arizona/1245452.json

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+"{\"id\": \"1245452\", \"name\": \"STATE of Arizona, Appellee, v. Terry James ELIASON, Appellant\", \"name_abbreviation\": \"State v. Eliason\", \"decision_date\": \"1976-01-08\", \"docket_number\": \"No. 1 CA-CR 1095\", \"first_page\": \"523\", \"last_page\": \"529\", \"citations\": \"25 Ariz. App. 523\", \"volume\": \"25\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T23:15:41.923086+00:00\", \"provenance\": \"CAP\", \"judges\": \"JACOBSON, P. J., and EUBANK, J\\u201e concur.\", \"parties\": \"STATE of Arizona, Appellee, v. Terry James ELIASON, Appellant.\", \"head_matter\": \"544 P.2d 1124\\nSTATE of Arizona, Appellee, v. Terry James ELIASON, Appellant.\\nNo. 1 CA-CR 1095.\\nCourt of Appeals of Arizona, Division 1, Department B.\\nJan. 8, 1976.\\nBruce E. Babbitt, Atty. Gen., by William J. Schafer, III, Chief Counsel, Crim. Div., and Stanley L. Patchell, Asst. Attys. Gen., Phoenix, for appellee.\\nRoss P. Lee, Maricopa County Public Defender by Rudolph J. Gerber, Deputy Public Defender, Phoenix, for appellant.\", \"word_count\": \"2913\", \"char_count\": \"17567\", \"text\": \"OPINION\\nHAIRE, Chief Judge, Division 1.\\nPursuant to A.R.S. \\u00a7 13-621 the defendant was convicted of receiving stolen property, and was placed on probation for five years. One of the conditions of probation was that he serve one year in the county jail. He has filed this appeal, contending that the evidence which led to his conviction was inadmissible because it was obtained as a result of an unlawful search and seizure.\\nThe defendant filed a motion to suppress which was submitted to the trial court on the record made at defendant's preliminary hearing. At a motion to reconsider the denial of the motion to suppress, it was stipulated that if the trial court should uphold its original denial of defendant's motion, then defendant's guilt or innocence should be determined from the preliminary hearing record and the police reports. The facts pertinent to defendant's contention that his initial detention and subsequent search were violative of his Fourth Amendment rights are as follows.\\nOn July 16, 1974, at 3:00 a. m., as Phoenix police officer Willard Reger pulled into the parking lot of a convenience market located at 9019 North 19th Avenue, he observed a man standing in the shadows near the. building. Officer Reger recognized this man and thought that there was a traffic warrant outstanding against him. He also observed the defendant who was standing inside the store at the counter. The officer noted the license of a vehicle parked in the lot and observed both men run to the car and leave the lot in such a manner that the vehicle's tires made a screeching noise. The officer went into the store to determine whether a robbery had occurred. He observed that the clerk was all right, and in response to his inquiry the clerk informed him that the man the officer had seen standing at the counter had offered the clerk a turquoise ring in exchange for an after-hours sale of a six-pack of beer. The defendant had told the clerk that the ring was worth $20, but the clerk said he believed it to be much more valuable. These observations, combined with the officer's knowledge of recent turquoise jewel thefts in the area, caused him to pursue the vehicle.\\nThe officer stopped the pursued vehicle on Dunlap Avenue, several blocks from the store. At that time both occupants quickly got out of the car and approached him. He ordered them to place their hands in view and had them stand near a block wall. The officer then shined his flashlight into their vehicle to determine whether it contained other occupants. While looking into the car, he observed two wristwatches and a jewelry case between the front seats.\\nThe officer then approached the occupants to discuss their actions at the store. He observed that the defendant, who was shirtless, was wearing several items of tur quoise jewelry, including a necklace. He questioned the defendant's companion about the transaction at the convenience market and was informed they were only trying to make a purchase. They were then read their Miranda rights by the officer. Pursuant to subsequent questioning, the defendant's companion produced the turquoise ring from his pocket that had been used in the attempt to purchase beer at the market and told the officer he had purchased it for $20. The officer then requested the keys to the vehicle. Defendant refused and both men were placed in the police vehicle. The officer went to defendant's vehicle, opened the driver's door and observed the keys in the ignition. He also observed various items of jewelry in the car and then proceeded to open the trunk which contained numerous items of turquoise jewelry.\\nDefendant's argument that the initial detention was unreasonable is without merit. The facts observed by the officer and information related to him by the store clerk clearly gave rise to a rational and reasonable suspicion on his part that criminal activity might be afoot. Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Ruiz, 19 Ariz.App. 84, 504 P.2d 1307 (1973); State v. Baltier, 17 Ariz.App. 441, 498 P.2d 515 (1972). The reasonableness of the governmental invasion of the citizen's personal security is the central inquiry in an investigatory stop such as this, State v. Ruiz, supra. The observed behavior of the defendant and his companion, coupled with the officer's information concerning the ring and his knowledge of recent turquoise jewel thefts, is clearly sufficient to furnish a rational foundation for the initial detention.\\nDefendant next argues that the search of his car was unlawful because not made upon probable cause. While warrantless searches of automobiles are more readily upheld than similar searches of homes, offices or buildings, because of the mobility of automobiles, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Benge, 110 Ariz. 473, 520 P.2d 843 (1974), such searches, nevertheless, must be supported by probable cause. An officer has probable cause to make a warrantless search of a vehicle when he has a reasonable belief, arising out of circumstances known to him, that the vehicle contains contraband. Chambers v. Maroney, supra; State v. Lawson, 107 Ariz. 603, 491 P.2d 457 (1971); State v. Williamson, 20 Ariz.App. 397, 513 P.2d 686 (1973). Here, there is substantial evidence supporting the trial court's conclusion that Officer Reger had probable cause to believe, prior to beginning his warrantless search, that he would find contraband from a recent jewel theft. Immediately after stopping defendant's vehicle the officer observed a jewelry box and wristwatches in the vehicle. He observed defendant wearing numerous articles of turquoise Indian jewelry and was given a suspicious explanation as to the acquisition of the ring in light of the clerk's evaluation of the ring. These additional facts which became known to the officer after the stop, coupled with his previous observations of the defendant and his companion at the store, the information obtained from the store clerk, and the officer's knowledge of recent turquoise burglaries created a substantial evidentiary basis in support of the trial court's determination that probable cause for the search existed. When the trial court's determination is supported by substantial evidence, this Court will not substitute its evaluation of the evidence in an attempt to reach or justify a different conclusion. Compare State v. Ballinger, 19 Ariz.App. 32, 504 P.2d 955 (1973); State v. McMann, 3 Ariz.App. 111, 412 P.2d 286 (1966); Burke v. Superior Court in and for the County of Sonoma, 39 Cal.App.3d 28, 113 Cal.Rptr. 801 (1974); with Navajo Freight Lines, Inc. v. Liberty Mutual Ins. Co., 12 Ariz.App. 424, 471 P.2d 309 (1970). We therefore hold that the trial court properly denied defendant's motion to suppress and that therefore, the evidence which led to his conviction was properly-admitted.\\nUnder A.R.S. \\u00a7 13-1715, this Court is required to search the record for fundamental error, regardless of defendant's failure to object at trial or to raise the issue on appeal. State v. Mendiola, 112 Ariz. 165, 540 P.2d 131 (1975); State v. Hanley, 108 Ariz. 144, 493 P.2d 1201 (1972); State v. James, 10 Ariz.App. 394, 459 P.2d 121 (1969). Reversal is required where the fundamental error was prejudicial to the defendant. State v. Anderson, 110 Ariz. 238, 517 P.2d 508 (1973); State v. Mendiola, supra. After reviewing the record, it is evident that there were two instances in which fundamental error may have occurred. As a result we are confronted by two issues. First, following the defendant's request for submission of the issue of guilt based upon the preliminary hearing transcript and police report, did the defendant comprehend the significance of the submission, and knowingly waive his rights? Second, was the judgment rendered absent evidence in the record of one of the elements of the offense of felonious receipt or purchase of stolen property? Both the St\\u00e1te and the appellant, at the request of the court, have filed supplemental memoranda on these issues.\\nIn State v. Crowley, 111 Ariz. 308, 528 P.2d 834 (1974), the Supreme Court, faced with a defendant who had also submitted the issue of guilt based upon the preliminary hearing record, stated that:\\n\\\"The trial court must determine, and the record must reflect, that the defendant understood the significance and consequences of submitting the case on the basis of the preliminary hearing transcript. It must affirmatively appear in the record that the defendant knew that he was giving up the right to trial by jury, to testify in his own behalf, to call any witnesses, or to offer any further evidence. The record must reflect that the defendant understood that the whole issue of his guilt or innocence of the offense charged was to be made upon the preliminary hearing transcript.\\\" 528 P.2d at 837.\\nThe Supreme Court declared that the defendant-Crowley's signing of a document entitled \\\"WAIVER OF RIGHT TO TRIAL BY JURY AND AGREEMENT TO SUBMIT CASE ON TRANSCRIPT\\\" was not sufficient, in and of itself, to indicate a knowledgeable waiver of those rights enumerated by the court.\\nThis Court has concluded that the following dialogue between the trial judge and defendant, which occurred subsequent to the defendant's request for submission, when coupled with his signing of a document similar to that signed by the defendant in Crowley, indicates that the defendant did knowingly waive his rights:\\n\\\"THE COURT: . . . your lawyer mentioned to me that there was a possibility that we would not have a trial in the traditional way that a person thinks about a trial, a courtroom and a jury and witnesses and that kind of thing, but instead would submit the matter to me, based upon the information in the preliminary hearing and also some of the police reports and that would be done now, But it would depend on how I ruled on the point of law on the motion that your attorney was making in your behalf.\\n\\\"Do you understand that ?\\n\\\"DEFENDANT ELIASON: Yes.\\n\\\"THE COURT: Do you agree to do that? Does that\\u2014\\n\\\"DEFENDANT ELISON: That sounds satisfactory.\\n\\\"THE COURT: Is that agreeable with you?\\n\\\"DEFENDANT ELIASON: Yes.\\n\\\"THE COURT: Is that satisfactory to you?\\n\\\"DEFENDANT ELIASON: Uh-huh.\\n\\\"THE COURT: Is there anything that you do not understand that I have mentioned to you?\\n\\\"DEFENDANT ELIASON: No.\\n\\\"THE COURT: Do you have any question at all about what I am discussing with you ?\\n\\\"DEFENDANT ELIASON: No.\\n\\\"THE COURT: . I would read the transcript and the documents and the police reports and determine from those things alone your guilt or innocence.\\n\\\"Do you understand that, sir ?\\n\\\"DEFENDANT ELIASON: Yes.\\n\\\"THE COURT: And you are willing to do that ?\\n\\\"DEFENDANT ELIASON: Yes, I am.\\n\\\"THE COURT: And that's what you want to do ?\\n\\\"DEFENDANT ELIASON: Uh-huh.\\\"\\nWhile the trial court, in addressing the defendant, did not mention individually each right and await the defendant's reply, such a litany is not required. A common sense approach in making the determination of a knowledgeable waiver is sometimes superi- or to the adherence to an inflexible incantation which, as past experience has shown, all too often encourages form over substance.\\nConsidering next the question of whether the evidence supports the conviction, we have concluded that the conviction was rendered without any supporting evidence relating to an essential element of the crime, and that this was prejudicial error.\\nIn its supplemental memorandum dealing with this issue, the State, citing State v. Crowley, supra, and State v. Hendi\\u00f3la, supra, contends that when the issue of guilt is submitted to the trial court based upon a preliminary hearing transcript, the defendant may preserve on appeal the issue of sufficiency of the evidence only if initially raised before the trial court. The State maintains that having failed to raise this point at the trial level, the defendant is now estopped from having the issue considered on appeal. Neither Crowley nor People v. Levey, 8 Cal.3d 648, 105 Cal.Rptr. 516, 504 P.2d 452 (1973), relied upon in Crowley, addressed the issue of whether the question of the sufficiency of the evidence could be raised for the first time on appeal when the defendant had submitted the issue of his guilt based upon a preliminary hearing transcript. The cases in California dealing with this issue, decided after Levey, leave little doubt but that sufficiency of the evidence- can be raised on appeal. See, People v. Martin, 9 Cal.3d 687, 108 Cal.Rptr. 809, 511 P.2d 1161 (1973). Bunnell v. Superior Court of Santa Clara County, 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086 (1975). With respect to a suggestion by the State that the sufficiency of the evidence could not be raised on appeal, the Hartin court stated:\\n\\\"We have never held, however, that a submission on the transcript constitutes a waiver of the right to challenge on appeal the sufficiency of the evidence in support of a conviction.\\n\\\"The rationale upon which we have held that a defendant who enters a guilty plea waives his right to an appellate. challenge based on insufficiency of the evidence, [citations omitted] follows from the defendant's implied admission that the People have established or can establish every element of the charged offense, thus obviating the need for the People to come forward with any evidence. [Citations omitted]. There is no rationale, however, which warrants the finding of an implied admission of the existence of each element of a charged crime merely because the accused agrees to a determination by the court as to the existence of such elements on the evidence presented earlier at a preliminary hearing.\\n\\n\\\"Whenever a defendant waives trial and submits his guilt or innocence on the transcript \\u00f3f a preliminary hearing the trial court must weigh the evidence con tained in the transcript a.nd convict only if, in view of all matters properly contained therein, it is persuaded beyond a reasonable doubt of the defendant's guilt. In view of the foregoing it is clear that Prizant, by submitting the question of his guilt on the transcripts of the preliminary hearing, cannot be held to have waived his right to challenge the sufficiency of the evidence on appeal.\\\" 108 Cal.Rptr. at 813, 511 P.2d at 1165, 1166. (Emphasis in original).\\nThe logic and reasoning of the above language is sound and therefore we adopt it as our own.\\nThe complaint filed against the defendant alleged only a felonious receipt or purchase of stolen property. Section 13-621A, 5 A.R.S., reads as follows:\\n\\\"A person who, for his own gain, or to prevent the owner from again possessing the property, buys, conceals or receives personal- property, knowing or having reason to believe that the property is stolen, is guilty of a misdemeanor, if the value of the property bought, concealed or received is less than one hundred dollars, and is guilty of a felony if the value of the property bought, concealed or received is one hundred dollars or more.\\\" (Emphasis added).\\nOne of the elements of this crime is that the property, which the person was charged with receiving, have a value equivalent to or greater than $100. Although containing evidence on the remaining elements, the record upon which the verdict was based is void of evidence establishing the value of the merchandise the appellant was convicted of receiving. At the preliminary hearing, the owner of the stolen jewelry identified the jewelry found in defendant's possession as a portion of the jewelry stolen from the owner's store. However he did not testify as to the value of any of the identified jewelry. One of the police reports does contain an inventory of the articles stolen from the owner's store. However, there is no testimony connecting any of the jewelry admitted into evidence with the inventory list. Moreover, the description of the items located on the inventory of stolen jewelry is insufficient to link that jewelry to the jewelry which the defendant was convicted of receiving. A conviction in which there is an absence of evidence on an essential element of the crime cannot stand. State v. Bollander, 110 Ariz. 84, 515 P.2d 329 (1973).\\nWhile the evidence was insufficient to render a guilty verdict for the felonious receipt of stolen property, the evidence was more than adequate to find the defendant guilty of a misdemeanor for the receipt of stolen property. It is well settled that this Court, upon a finding of insufficiency of the evidence, may modify the judgment to conform to the evidence under circumstances such as are presented here. State v. Torres, 109 Ariz. 421, 510 P.2d 737 (1973); State v. Quila, 108 Ariz. 488, 502 P.2d 525 (1972); State v. Dixon, 107 Ariz. 415, 489 P.2d 225 (1971); State v. Hunter, 102 Ariz. 472, 433 P.2d 22 (1967); State v. Rowland, 12 Ariz.App. 437, 471 P.2d 322 (1970).\\nTherefore, the sentence is set aside, the judgment of conviction is modified to conform to the evidence, and the matter remanded to the trial court for sentencing for the receipt or purchase of stolen property, a misdemeanor.\\nJACOBSON, P. J., and EUBANK, J\\\" concur.\"}"

arizona/1248900.json

@@ -0,0 +1 @@
+"{\"id\": \"1248900\", \"name\": \"Carl W. SELBY, Appellant, v. Howard H. KARMAN and Geraldine Karman, his wife, Appellees\", \"name_abbreviation\": \"Selby v. Karman\", \"decision_date\": \"1973-07-02\", \"docket_number\": \"No. 2 CA-CIV 1355\", \"first_page\": \"206\", \"last_page\": \"208\", \"citations\": \"20 Ariz. App. 206\", \"volume\": \"20\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T21:40:40.385168+00:00\", \"provenance\": \"CAP\", \"judges\": \"HATHAWAY, C. J., and HOWARD, J., concur.\", \"parties\": \"Carl W. SELBY, Appellant, v. Howard H. KARMAN and Geraldine Karman, his wife, Appellees.\", \"head_matter\": \"511 P.2d 650\\nCarl W. SELBY, Appellant, v. Howard H. KARMAN and Geraldine Karman, his wife, Appellees.\\nNo. 2 CA-CIV 1355.\\nCourt of Appeals of Arizona, Division 2.\\nJuly 2, 1973.\\nRehearing Denied July 25, 1973.\\nReview Granted Sept. 25, 1973.\\nOtto H. Linsenmeyer and Frank E. Dickey, Jr., Phoenix, for appellant.\\nBrowder & Gillenwater, P. C., by Powell B. Gillenwater and Robert W. Browder, Phoenix, for appellees.\", \"word_count\": \"861\", \"char_count\": \"5103\", \"text\": \"KRUCKER, Judge.\\nThis is an appeal by Carl W. Selby, plaintiff below, from a summary judgment in a personal injury action in favor of appellees, Howard H. and Geraldine Karman, defendants below. The action, filed September 21, 1971, arose out of an accident which occurred September 3, 1969. In a motion for summary judgment, defendants raised the two-year statute of limitations for an action for personal injuries, A.R.S. \\u00a7 12-542, as amended. *Plaintiff claimed that the defendants had been outside the State of Arizona and out of the United States for a total of 52 days during the two-year period and he relies on the so-called \\\"tolling statute,\\\" A.R.S. \\u00a7 12 \\u2014 SOI. The 52-day period was established by answers to interrogatories by the defendant, Howard A. Karman.\\nThe facts concerning the limitation question are not in dispute. It must be noted, however, that Mr. and Mrs. Karman have been actual bona fide residents of the State of Arizona at all times and that their absences from the jurisdiction were only temporary ones for vacation or business purposes. They did maintain their home and residence in Arizona at all times.\\nThe affidavit filed by the plaintiff in opposition to the defendants' motion for summary judgment stated:\\n\\\" . . . your affiant states that he did not know the whereabouts of the defendants, and was only told that they were on vacation at the time in question.\\nUnder Rule 8(d), Rules of Civil Procedure, 16 A.R.S., the statute of limitations is an affirmative defense. As such, the burden of proof as to the statute is upon the defendants. Having demonstrated to the trial court that the complaint was filed more than two years after the cause of action accrued, the burden of proving that the statute was tolled rested upon the plaintiff. Dean v. Novak, 360 S.W.2d 714 (Mo.1962); Anderson v. Wise, 345 S.W.2d 803 (Tex.Civ.App. 1961); 54 C.J.S. Limitations of Actions \\u00a7 388 at 527.\\nThe purpose of statutory provisions tolling the running of the statute of limitations during the absence or non-residence of the defendant is to prevent the defendant from defeating the plaintiff's claim by merely absenting himself from the state or taking up residence elsewhere for the period of limitations. Although there are cases to the contrary, we believe that the purpose of the tolling statute can still be served by adopting what we believe to be the better view epitamized by Summerrise v. Stephens, 75 Wash.2d 808, 454 P.2d 224 (1969). Thus, where, notwithstanding such absence or nonresidence, process could have been served in the state or under a long-arm statute to enable the plaintiff to institute an action upon his claim, the period of the defendant's absence from the state shall not be excluded from the period of limitation and the statute continues to run during such absence.\\nTurning our attention to the plaintiff's affidavit, does it carry the burden of establishing the avoidance of the limitations statute? We think not. Under Rule 4(d), Rules of Civil Procedure, 16 A.R.S., in personam jurisdiction can be had by leaving a copy of the summons and complaint at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Mayhew v. McDougall, 16 Ariz.App. 125, 491 P.2d 848 (1971).\\nIt was incumbent upon plaintiff to show that in personam jurisdiction could not be had in the State of Arizona or by the use of our long-arm statute, Rule 4(e)(2), Rules of Civil Procedure, 16 A.R.S. Although the affidavit might marginally be considered as sufficient on a motion for summary judgment on the issue of amenability to service under the long-arm statute, it does not show that service could not have been accomplished under Rule 4(d), Rules of Civil Procedure, 16 A.R.S.\\nJudgment affirmed.\\nHATHAWAY, C. J., and HOWARD, J., concur.\\n. A.R.S. \\u00a7 12-542, as amended, states:\\n\\\"A. Except as provided in subsection B, there shall be commenced and prosecuted within two years after the cause of action accrues, and not afterward, the following actions:\\n1. For injuries done to the person of another.\\\"\\n. A.R.S. \\u00a7 12-501, states :\\n\\\"When a person against whom there is a cause of action is without the state at the time the cause of action accrues or at any time during which the action might have been maintained, such action may be brought against the person after his return to the state. The time of such person's absence shall not be counted or taken as a part of the time limited by the provisions of this chapter.\\\"\\n. See cases annotated, 94 A.L.R. 485, 486; 119 A.L.R. 859, 861.\\n. See cases annotated, 94 A.L.R. 485, 486, 488; 119 A.L.R. 859, 860; 51 Am.Jur.2d Limitations of Actions \\u00a7 161.\"}"

arizona/1251005.json

@@ -0,0 +1 @@
+"{\"id\": \"1251005\", \"name\": \"Frank GOURDIN and Carmen E. Gourdin, husband and wife, Appellants, v. MARYLAND CASUALTY COMPANY, a corporation, Appellee\", \"name_abbreviation\": \"Gourdin v. Maryland Casualty Co.\", \"decision_date\": \"1973-11-19\", \"docket_number\": \"No. 2 CA-CIV 1375\", \"first_page\": \"92\", \"last_page\": \"93\", \"citations\": \"21 Ariz. App. 92\", \"volume\": \"21\", \"reporter\": \"Arizona Appeals Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:57:14.941920+00:00\", \"provenance\": \"CAP\", \"judges\": \"KRUCKER, J. and JACK G. MARKS, Superior Court Judge, concur.\", \"parties\": \"Frank GOURDIN and Carmen E. Gourdin, husband and wife, Appellants, v. MARYLAND CASUALTY COMPANY, a corporation, Appellee.\", \"head_matter\": \"515 P.2d 1190\\nFrank GOURDIN and Carmen E. Gourdin, husband and wife, Appellants, v. MARYLAND CASUALTY COMPANY, a corporation, Appellee.\\nNo. 2 CA-CIV 1375.\\nCourt of Appeals of Arizona, Division 2.\\nNov. 19, 1973.\\nJames F. Haythornewhite and Kerry A. McDonald, Nogales, for appellants.\\nHarley T. Morris, Nogales, Johnson, Hayes & Dowdall, Ltd., by Anthony D. Terry, Tucson, for appellee.\", \"word_count\": \"589\", \"char_count\": \"3590\", \"text\": \"OPINION\\nHOWARD, Judge.\\nIn October of 1965 and prior thereto, appellant Frank Gourdin embezzled funds from one or both of his employers, Ocean Gardens Products, Inc., and Oceanic Sales Corporation. Appellant's employers were insured by the appellee insurance company against loss resulting from wrongful acts of their employees. On July 22, 1966, the ap-pellee remitted a check for $920 to Ocean Gardens Products, Inc., under the terms of its insurance policy.\\nThis action was commenced on March 20, 1970 by the appellee against appellants for the collection of the $920. Appellants raised the defense of the statute of limitations under A.R.S. \\u00a7 12-542 which provided:\\n\\\"There shall be commenced and prosecuted within two years after the cause of action accrues, and not afterward, the following actions:\\n1. For injuries done to the person of another.\\n2. For injuries done to the person of another when death ensues from such injuries, which action shall be considered as accruing at the death of the party injured.\\n3. For trespass for injury done to the estate or the property of another.\\n4. For taking or carrying away the goods and chattels of another.\\n5. For detaining the personal property of another and for converting such property to one's own use.\\n6. For forcible entry or forcible detain-er, which action shall be considered as accruing at the commencement of the forcible entry or detainer.\\\"\\nThe trial court rejected this defense on the grounds that A.R.S. \\u00a7 12-548 was the applicable statute. A.R.S. \\u00a7 12-548 provided :\\n\\\"An action for debt where indebtedness is evidenced by or founded upon a contract in writing executed within the state shall be commenced and prosecuted within six years after the cause \\u2022 of action accrues, and not afterward.\\\"\\nThe trial court entered judgment for the appellee.\\nWe find that the trial court erred in its determination of the applicable statute and, accordingly, we must reverse.\\nBy virtue of the terms, of the policy of insurance the appellee stepped into the shoes of its insureds. It succeeded to any cause of action that the employers had against appellants.\\nWhatever period of limitation was applicable to the insured passed by subrogation to the appellee, who, by reason of such subrogation is put in the place of the party to whose rights it is subrogated. Automobile Insurance Company of Hartford v. Union Oil Company, 85 Cal.App.2d 302, 193 P.2d 48 (1948).\\nThe insured's cause of action against appellants was for conversion and fell within the two-year period prescribed by A.R.S. \\u00a7 12-542(5). Having stepped into its insured's shoes, appellee was also subject to the same period of limitations. Appellee's cause of action was not for \\\"subrogation\\\" and was not evidenced by or founded upon a contract in writing. It was founded upon a tort, conversion.\\nThe judgment is reversed and the trial court is ordered to enter judgment in favor of the appellants and against the appellee.\\nKRUCKER, J. and JACK G. MARKS, Superior Court Judge, concur.\\nNOTE: Judge JAMES D. HATHAWAY having requested that he be relieved from consideration of this matter, Judge JACK G. MARKS was called to sit in his stead and participate in the determination of this decision.\"}"

arizona/12573877.json

@@ -0,0 +1 @@
+"{\"id\": \"12573877\", \"name\": \"Evelyn Lee SPOONER, Plaintiff/Appellant, v. CITY OF PHOENIX, et al., Defendants/Appellees.\", \"name_abbreviation\": \"Spooner v. City of Phx.\", \"decision_date\": \"2018-11-27\", \"docket_number\": \"No. 1 CA-CV 17-0500\", \"first_page\": \"462\", \"last_page\": \"468\", \"citations\": \"435 P.3d 462\", \"volume\": \"435\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Court of Appeals of Arizona, Division 1\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-27T21:04:16.902165+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Evelyn Lee SPOONER, Plaintiff/Appellant,\\nv.\\nCITY OF PHOENIX, et al., Defendants/Appellees.\", \"head_matter\": \"Evelyn Lee SPOONER, Plaintiff/Appellant,\\nv.\\nCITY OF PHOENIX, et al., Defendants/Appellees.\\nNo. 1 CA-CV 17-0500\\nCourt of Appeals of Arizona, Division 1.\\nFILED November 27, 2018\\nDebus Kazan & Westerhausen, Ltd., Phoenix, By Tracey Westerhausen, Larry L. Debus, Gregory M. Zamora, Counsel for Plaintiff/Appellant\\nBurch & Cracchiolo, Phoenix, By Melissa Iyer Julian, Counsel for Defendants/Appellees\\nPresiding Judge Kenton D. Jones delivered the Opinion of the Court, in which Vice Chief Judge Peter B. Swann and Judge David D. Weinzweig joined.\", \"word_count\": \"2495\", \"char_count\": \"15481\", \"text\": \"JONES, Judge:\\n\\u00b6 1 Evelyn Spooner appeals from a judgment entered in favor of the City of Phoenix and Toni Brown (collectively, the City) on her civil claims arising from a purported wrongful arrest. Spooner argues the trial court erred by precluding her from using Brown's grand jury testimony to impeach Brown's credibility at trial and directing a verdict on her simple negligence claim. We affirm the preclusion of Brown's grand jury testimony and hold that a law enforcement officer is not subject to civil liability for simple negligence arising from an investigation into criminal activity. Accordingly, we affirm the judgment.\\nFACTS AND PROCEDURAL HISTORY\\n\\u00b6 2 In 2009, Brown, a detective with the Phoenix Police Department, began investigating Spooner's financial relationship with ninety-five-year-old Mary B. At a 2011 grand jury proceeding, Brown testified about her investigation, and the grand jury indicted Spooner for three counts of theft from a vulnerable adult and one count of unlawful use of a power of attorney. The State later dismissed the criminal charges, and Spooner then filed suit against the City asserting purported constitutional violations, simple negligence, gross negligence, intentional infliction of emotional distress, and malicious arrest. Spooner supported these claims with allegations that Brown lied to the grand jury, withheld exculpatory evidence, and failed to properly investigate Spooner's relationship with Mary.\\n\\u00b6 3 After the close of evidence in an eight-day civil jury trial, the trial court entered judgment as a matter of law in the City's favor on Spooner's claims for simple negligence, malicious arrest, and constitutional violations. The jury then found for the City on the claims for gross negligence and intentional infliction of emotional distress. Spooner timely appealed the final judgment, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) \\u00a7 12-120.21(A)(1) and -2101(A)(1).\\nDISCUSSION\\nI. The Trial Court Acted Within its Discretion in Excluding Brown's Grand Jury Testimony for Use as Impeachment Evidence.\\n\\u00b6 4 At oral argument on appeal, Spooner conceded that grand jury witnesses enjoy absolute immunity for claims arising from their testimony. See Green Acres Tr. v. London , 141 Ariz. 609, 613, 688 P.2d 617, 621 (1984) ; see also Rehberg v. Paulk , 566 U.S. 356, 369, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012). She argues, however, that the trial court deprived her of due process when it precluded her use of Brown's grand jury testimony for impeachment purposes at trial. The court precluded the testimony after finding both: (1) that \\\"allowing introduction of the grand jury testimony . would effectively operate to circumvent the absolute immunity of [a grand jury] witness,\\\" and (2) that the probative value of the testimony was substantially outweighed by the danger of unfair prejudice and confusion of the issues-namely, \\\"the appropriate scope of the use of the grand jury testimony relative to the remaining liability claims.\\\"\\n\\u00b6 5 Spooner argues that evidence of Brown's purported false testimony to the grand jury is relevant to Brown's credibility, relying upon Marshall v. Randall , 719 F.3d 113, 116-18 (2d Cir.2013) (finding, under the Federal Rules of Evidence, no abuse of discretion in the admission of grand jury testimony to impeach law enforcement officers defending 42 U.S.C. \\u00a7 1983 claims arising out of purportedly false testimony where there was \\\"no potential for jury confusion\\\"). We do not reach the general issue of admissibility, however, because we find no error in the exclusion of the evidence under Rule 403. Even relevant evidence is subject to exclusion \\\"if its probative value is substantially outweighed by a danger of . unfair prejudice, confusing the issues, [or] misleading the jury.\\\" Ariz. R. Evid. 403. \\\"Because 'probative value' and 'the danger of unfair prejudice' are not easily quantifiable factors, we accord substantial discretion to the trial court in the Rule 403 weighing process.\\\" Hudgins v. Sw. Airlines, Co. , 221 Ariz. 472, 481, \\u00b6 13, 212 P.3d 810, 819 (App. 2009) (citing State v. Gibson , 202 Ariz. 321, 324, \\u00b6 17, 44 P.3d 1001, 1004 (2002) ). The decision to preclude impeachment evidence is likewise reviewed for an abuse of discretion. See Gasiorowski v. Hose , 182 Ariz. 376, 382, 897 P.2d 678, 684 (App. 1994) (citing Selby v. Savard , 134 Ariz. 222, 227, 655 P.2d 342, 347 (1982) ).\\n\\u00b6 6 The record reflects that the trial court carefully considered the scope and purpose of absolute immunity in judicial proceedings, including warnings from both the U.S. Supreme Court and this Court against allowing parties to \\\"circumvent\\\" absolute witness immunity \\\"by using evidence of the witness'[s] testimony to support any . claim concerning the initiation or maintenance of a prosecution.\\\" Rehberg , 566 U.S. at 369, 132 S.Ct. 1497 ; accord Sobol v. Alarcon , 212 Ariz. 315, 318, \\u00b6 11, 131 P.3d 487, 490 (App. 2006) (\\\"[I]t is necessary that the propriety of [a witness's] conduct not be inquired into indirectly by either court or jury in civil proceedings brought against them for misconduct in their position.\\\") (quotation omitted). The court also reasonably determined introduction of grand jury testimony was unfairly prejudicial and likely to confuse the jury because it would constitute direct evidence of purported misconduct for which the City was absolutely immune. We find no abuse of discretion or due process violation here.\\nII. The Trial Court Properly Entered Judgment as a Matter of Law for the City on the Simple Negligence Claim.\\n\\u00b6 7 Spooner argues the trial court erred when it entered judgment for the City upon Spooner's claim for simple negligence. We review the entry of judgment as a matter of law de novo , \\\"viewing the evidence and reasonable inferences in the light most favorable to the nonmoving party.\\\" SWC Baseline & Crismon Inv'rs, L.L.C. v. Augusta Ranch Ltd. P'ship , 228 Ariz. 271, 292, \\u00b6 93, 265 P.3d 1070, 1091 (App. 2011) (citing Shoen v. Shoen , 191 Ariz. 64, 65, 952 P.2d 302, 303 (App. 1997) ). We likewise review the existence and scope of qualified immunity de novo . See Ochser v. Funk , 228 Ariz. 365, 369, \\u00b6 11, 266 P.3d 1061. 1065 (2011) (citation omitted). We will affirm the judgment if it is correct for any reason. Walter v. Simmons , 169 Ariz. 229, 240 n.9, 818 P.2d 214, 225 n.9 (App. 1991).\\n\\u00b6 8 As a general rule, public entities and public employees are subject to tort liability for their negligence. See Ryan v. State , 134 Ariz. 308, 309-10, 656 P.2d 597, 598-99 (1982) (\\\"[T]he parameters of duty owed by the state will ordinarily be coextensive with those owed by others.\\\") (citing Stone v. Ariz. Highway Comm'n , 93 Ariz. 384, 392, 381 P.2d 107 (1963) ), superseded by statute on other grounds as stated in Tucson Unified Sch. Dist. v. Owens-Corning Fiberglas Corp. , 174 Ariz. 336, 339, 849 P.2d 790, 793 (1993) ; see also Hogue v. City of Phoenix , 240 Ariz. 277, 280, \\u00b6 9, 378 P.3d 720, 723 (App. 2016) (citing Greenwood v. State , 217 Ariz. 438, 442, \\u00b6 14, 175 P.3d 687, 691 (App. 2008) ). Although our supreme court recognized the abolition of general sovereign immunity in Ryan , it nonetheless \\\"hasten[ed] to point out that certain areas of immunity must remain.\\\" 134 Ariz. at 309-10, 656 P.2d at 599. Some remaining areas of immunity are prescribed by statute within Arizona's Governmental Tort Claims Act, see, e.g., A.R.S. \\u00a7 12-820.02, but the legislature has directed that its statutory grant of immunity for certain acts \\\"shall not be construed to affect, alter or otherwise modify any other rules of tort immunity regarding public entities and public officers as developed at common law.\\\" See A.R.S. \\u00a7 12-820.05(A) ; see also Clouse ex rel. Clouse v. State , 199 Ariz. 196, 203, \\u00b6 27, 16 P.3d 757, 764 (2001) (acknowledging that common law immunity principles apply in the absence of statutory direction) (citations omitted).\\n\\u00b6 9 Common law qualified immunity generally provides public officials, including police officers, limited protection from liability when \\\"performing an act that inherently requires judgment or discretion.\\\" Chamberlain v. Mathis , 151 Ariz. 551, 555, 558, 729 P.2d 905, 909, 912 (1986) (applying the Ryan principles in concluding a state employee is protected by qualified immunity for discretionary acts); see also Portonova v. Wilkinson , 128 Ariz. 501, 503, 627 P.2d 232, 234 (1981) (\\\"It has been recognized that in Arizona a police officer acting within the scope of his authority has at least a conditional immunity from civil liability.\\\") (citing Patterson v. City of Phoenix , 103 Ariz. 64, 70-71, 436 P.2d 613, 619-20(1968) ); Restatement (Second) of Torts \\u00a7 895D (1979) (\\\"A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if . he is [otherwise] immune because [he is] engaged in the exercise of a discretionary function.\\\"); id. at cmt. h (explaining no immunity attaches to a ministerial act \\\"carr[ied] out [on] the orders of others or . [done] with little choice as to when, where, how or under what circumstances\\\"). This accommodation for discretionary acts exists because \\\"officials should not err always on the side of caution\\\" for fear of being sued. State v. Superior Court (Donaldson) , 185 Ariz. 47, 50, 912 P.2d 51, 54 (App. 1996) (quoting Hunter v. Bryant , 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) ); see also Restatement (Second) of Torts \\u00a7 895D cmt. b (\\\"The basis of the immunity has been not so much a desire to protect an erring officer as it has been a recognition of the need of preserving independence of action without deterrence or intimidation by the fear of personal liability and vexatious suits.\\\"). The doctrine thus \\\" 'gives ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law.' \\\" Donaldson , 185 Ariz. at 50, 912 P.2d at 54 (quoting Hunter , 502 U.S. at 229, 112 S.Ct. 534 ).\\n\\u00b6 10 If qualified immunity applies, a public official performing a discretionary act \\\"within the scope of [her] public duties\\\" may be liable only if she \\\"knew or should have known that [s]he was acting in violation of established law or acted in reckless disregard of whether h[er] activities would deprive another person of their rights.\\\" Chamberlain , 151 Ariz. at 558, 729 P.2d at 912 ; see also Grimm v. Ariz. Bd. of Pardons & Paroles , 115 Ariz. 260, 267-68, 564 P.2d 1227, 1235 (1977) (holding that members of the Arizona Board of Pardons and Paroles were liable \\\"only for the grossly negligent or reckless release of a highly dangerous prisoner\\\" but enjoyed \\\"freedom from suit for reasonable decisions\\\"). A public official's conscious disregard of the law or the rights of others constitutes gross negligence, see Noriega v. Town of Miami , 243 Ariz. 320, 328, \\u00b6 35-36, 407 P.3d 92, 100 (App. 2017) (citations omitted), and she remains liable for such conduct, Chamberlain , 151 Ariz. at 558, 729 P.2d at 912. But a public official performing a discretionary act encompassed within her public duties is shielded from liability for simple negligence. See Chamberlain , 151 Ariz. at 558, 729 P.2d at 912.\\n\\u00b6 11 Criminal investigations involve the exercise of personal deliberation and individual professional judgment that necessarily reflect the facts of a given situation. By its very nature, investigative police work is discretionary and appropriate for exemption from suit for simple negligence. See Walls v. Ariz. Dep't of Pub. Safety , 170 Ariz. 591, 594, 826 P.2d 1217, 1220 (App. 1991) (acknowledging that decisions to investigate a crime or arrest a suspect \\\"involve a judgment by a police officer\\\"). Moreover:\\nThe public has a vital stake in the active investigation and prosecution of crime. Police officers and other investigative agents must make quick and important decisions as to the course an investigation shall take. Their judgment will not always be right; but to assure continued vigorous police work, those charged with that duty should not be liable for mere negligence.\\nLanderos , 171 Ariz. at 475, 831 P.2d at 851 (quoting Smith v. State , 324 N.W.2d 299, 301 (Iowa 1982) ); see also Everitt v. Gen. Elec. Co. , 156 N.H. 202, 932 A.2d 831, 844 (2007) (\\\"[L]aw enforcement by its nature is susceptible to provoking the hostilities and hindsight second-guessing by those directly interacting with police as well as by the citizenry at large.... The public simply cannot afford for those individuals charged with securing and preserving community safety to have their judgment shaded out of fear of subsequent lawsuits.\\\"). Accordingly, we conclude that public policy mandates that investigative police work, performed in the scope of an officer's public duty, is a discretionary act subject to qualified immunity.\\n\\u00b6 12 Here, Spooner alleged Brown acted either intentionally or negligently to effectuate Spooner's arrest without the requisite probable cause. To the extent these actions violate clearly established law or reflect a reckless disregard of Spooner's rights, they are afforded no protection. The trial court properly permitted Spooner to proceed on these claims and properly instructed the jury that it could find in Spooner's favor if she proved gross negligence. But to the extent Brown's actions reflect the legitimate exercise of professional judgment, they are discretionary and protected by qualified immunity. Thus, the court rightfully entered judgment as a matter of law in the City's favor on the claim for simple negligence.\\nCONCLUSION\\n\\u00b6 13 The judgment in favor of the City is affirmed. As the prevailing party, the City is entitled to its costs incurred on appeal upon compliance with ARCAP 21(b).\\nSpooner also alleged the City did not properly supervise and train its employees to prevent wrongful arrests, but she did not advance this theory at trial.\\nAbsent material changes from the relevant date, we cite a statute's current version.\\nAlthough Spooner suggests the grand jury testimony could have been admitted with a limiting instruction regarding its proper purpose, rather than excluded altogether, she did not request this remedy at trial and therefore waived her right to assert error on this basis. Cf. State v. Mott , 187 Ariz. 536, 546, 931 P.2d 1046, 1056 (1997).\\nSpooner cites Austin v. City of Scottsdale , 140 Ariz. 579, 684 P.2d 151 (1984) ; Hutcherson v. City of Phoenix , 188 Ariz. 183, 933 P.2d 1251 (App. 1996), reversed on other grounds , 192 Ariz. 51, 961 P.2d 449 (1998) ; and Landeros v. City of Tucson , 171 Ariz. 474, 831 P.2d 850 (App. 1992), to support her argument that the City may be liable for simple negligence. None of these cases squarely discuss whether a law enforcement officer enjoys qualified immunity for discretionary decisions made in the course of a criminal investigation, and we do not find them instructive.\"}"

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+"{\"id\": \"1455175\", \"name\": \"STATE of Arizona, Appellant, v. Steven FELD, Larry Chabler, Appellees\", \"name_abbreviation\": \"State v. Feld\", \"decision_date\": \"1987-08-04\", \"docket_number\": \"No. 1 CA-CR 9471\", \"first_page\": \"88\", \"last_page\": \"98\", \"citations\": \"155 Ariz. 88\", \"volume\": \"155\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T20:24:30.065671+00:00\", \"provenance\": \"CAP\", \"judges\": \"EUBANK and FROEB, JJ., concur.\", \"parties\": \"STATE of Arizona, Appellant, v. Steven FELD, Larry Chabler, Appellees.\", \"head_matter\": \"745 P.2d 146\\nSTATE of Arizona, Appellant, v. Steven FELD, Larry Chabler, Appellees.\\nNo. 1 CA-CR 9471.\\nCourt of Appeals of Arizona, Division 1, Department C.\\nAug. 4, 1987.\\nReview Denied Dec. 1, 1987.\\nThomas E. Collins, Maricopa Co. Atty. by H. Allen Gerhardt, Randy H. Wakefield, Deputy Co. Attys., Phoenix, for appellant State.\\nRichard J. Hertzberg, Phoenix, for appellees Feld and Chabler.\\nRobert K. Corbin, Atty. Gen. by Patrick M. Murphy, Chief Counsel, Financial Fraud Div., Katrin M. Nelson, John B. Shadegg, Joseph M. Hennelly, Jr., Asst. Attys. Gen., Phoenix, amicus curiae.\", \"word_count\": \"5172\", \"char_count\": \"32686\", \"text\": \"OPINION\\nCORCORAN, Judge.\\nDefendants Steven Feld and Larry Chabler were charged by Count I of the criminal indictment with conducting an illegal enterprise through racketeering. The other three counts of the indictment alleged the exhibition of obscene films by various combinations of the individual defendants and a corporate defendant, C.A.T., Inc., dba Erotica Motel. Defendants Feld and Chabler moved to dismiss Count I and the trial court granted the motion and the state appealed. See A.R.S. \\u00a7 13-4032(1); Litak v. Scott, 138 Ariz. 599, 676 P.2d 631 (1984). C.A.T., Inc. is not a party to this appeal. Defendants moved to delay trial of the other counts pending resolution of this appeal. The motion was granted. We vacate the order of dismissal and reinstate Count I.\\nThe trial court explained its reasoning for granting the motion to dismiss, which we summarize as follows:\\n1. The pre-conviction remedies of A.R.S. \\u00a7 13-2314(C) constitute impermissible prior restraints on protected expression when employed in RICO/obscenity prosecutions.\\n2. Similarly, the post-conviction remedies of \\u00a7 13-2314(D) are generally inappropriate for application in obscenity cases.\\n3. To try to interpret \\u00a7 13-2314(B), (C) and (D) in such a way as to render them constitutional would require a tortuous interpretation which would not reflect the legislature's intent.\\n4. The civil burden of proof made applicable by \\u00a7 13-2314(F) further complicates the constitutional problems of the remedies.\\n5. Once the civil remedies of \\u00a7 13-2314 have been made inapplicable to obscenity prosecutions, to allow the use of obscenity as a predicate offense for racketeering makes no sense, because the only remaining effect is to convert conduct that is a class 6 felony under A.R.S. \\u00a7 13-3502 into a class 3 felony under \\u00a7 13-2312, which cannot be the legislative intent in making obscenity a predicate offense under the RICO statutes.\\nThe issue presented is whether the trial court erred by finding that the Arizona organized crime and fraud statutes (RICO), A.R.S. \\u00a7 13-2301 et seq., are unconstitutional as applied to obscenity proceedings, and by granting defendants' motion to dismiss Count I. RICO is an acronym for the federal Racketeer Influenced and Corrupt Organizations statutes, 18 U.S.C. \\u00a7 1961 et seq., upon which the Arizona racketeering statutes are based. See A.R.S. \\u00a7 13-2312 to -2315, Historical Notes; Baines v. Superior Court, 142 Ariz. 145, 148, 688 P.2d 1037, 1040 (App.1984).\\nUnder RICO,\\n[\\\"racketeering\\\" means any act, including any preparatory or completed offense, committed for financial gain, which is chargeable or indictable under the laws of the state in which the act occurred . and punishable by imprisonment for more than one year, regardless of whether such act is charged or indicted, involving: . [o]bscenity.\\nA.R.S. \\u00a7 13-2301(D)(4). A.R.S. \\u00a7 13-3501(2) defines an item as obscene when: (a) the \\\"average person, applying contemporary state standards, would find that the item, taken as a whole, appeals to the prurient interest; . (b) [such person] would find that the item depicts or describes, in a patently offensive way, sexual activity; . [and] (c) [t]he item, taken as a whole, lacks serious literary, artistic, political or scientific value.\\\"\\nThe state argues that the remedies set forth in A.R.S. \\u00a7 13-2314 are constitutional on their face, and if not, must be interpreted in such a way as to be constitutional, if possible. The state also urges that even if some remedies are unconstitutional, the trial court was not justified in finding that obscenity could not be used as a predicate offense under the RICO statutes. Defendants urge that the majority of the prejudgment and post-judgment RICO remedies are unconstitutional as applied to obsceni ty, and that it makes little sense for the court to try to save any of the provisions once the unconstitutional portions thereof are excised. Defendants also argue that the crime of illegally conducting an enterprise through obscenity is unconstitutionally vague.\\nWe need not here recount the long history of the law dealing with obscenity. See State ex rel. Collins v. Superior Court [Scott], Ariz., No. 17962-SA (1986). In general, publications are presumed to be protected from governmental interference pursuant to the first amendment of the United States Constitution. Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). Obscenity is not within the area of constitutionally protected speech or press and may therefore be regulated by the State. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); State v. Book-Cellar, Inc., 139 Ariz. 525, 679 P.2d 548 (App.1984). However, \\\"[w]hile obscenity is not constitutionally protected, the procedure by which we determine what is obscene, unprotected speech directly implicates the first amendment because the threat of criminal prosecution chills freedom of expression.\\\" State ex rel. Collins v. Superior Court [Scott], (dissent). The line between protected and unprotected speech is finely drawn and requires the use of sensitive tools to discern and enforce the boundary. E.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). The legislature, by making obscenity a predicate offense under the racketeering statute, has called into question the constitutionality of some portions of RICO when applied to obscenity because the remedies which are appropriate to other RICO criminal offenses are unconstitutionally overbroad in the obscenity area when applied to protected speech as opposed to unprotected obscenity.\\nNevertheless, courts strive to save statutes which may be interpreted to be constitutional. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985); State ex rel. Kidwell v. U.S. Mktg., Inc., 102 Idaho 451, 631 P.2d 622 (1981), appeal dismissed, 455 U.S. 1009, 102 S.Ct. 1649, 71 L.Ed.2d 878 (1982). Thus, in interpreting Arizona statutes dealing with obscenity this court has, when possible, given the questioned statute a constitutional construction. Book-Cellar, 139 Ariz. at 528, 679 P.2d at 551. Our duty is to uphold statutes, even if they are not artfully drawn. Id. By adding obscenity as a predicate offense in \\u00a7 13-2301, the legislature manifested an intent that where obscenity is connected to racketeering, it needs to be dealt with in the racketeering statutes, rather than solely through the obscenity statutes, A.R.S. \\u00a7 13-3501 et seq., or nuisance statutes, A.R.S. \\u00a7 12-811 et seq. We therefore strive to interpret the questioned statutes to effect that intent, to the extent that is constitutionally permissible.\\n1. Standing\\nInitially, we must determine whether defendants have standing to challenge the constitutionality of RICO as applied to obscenity charges.\\nThe state asserts that it will not attempt to seize items or close businesses before trial, but will only request orders necessary to maintain the status quo. Thus, it might be argued that defendants have no standing to contest what the state might do. Although the state in its original brief \\\"submits it would be a waste of judicial economy to decide this case on the basis that the trial court's ruling was premature,\\\" and that \\\"the state agrees that the trial court's ruling should be considered on appeal in its entirety,\\\" in its supplemental brief, the state argues that defendants cannot challenge the facial validity of the statute because defendants' activities are clearly obscene. We disagree.\\nFirst, even if the items for which defendants are prosecuted are clearly obscene, we must presume that the other activities of defendants are protected activity. The possible chilling effect of the RICO remedies on presumptively protected activities and the fact that defendants are being prosecuted and could be subject to any of the remedies set forth in \\u00a7 13-2314 entitles them to contest the constitutionality of \\u00a7 13-2314 and requires the court to do a facial analysis of the statute before prosecution proceeds. Polykoff v. Collins, 816 F.2d 1326 (9th Cir.1987); J-R Dist., Inc. v. Eikenberry, 725 F.2d 482 (9th Cir.1984), rev'd on other grounds sub nom. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). See also State v. Tocco, 1 CA-CR 7480, slip op. at 4 (Ariz.App. Dec. 2, 1986), review pending in CR-87-0032-PR (April 7, 1987); Western Business Sys., Inc. v. Slaton, 492 F.Supp. 513 (N.D.Ga.1980). As stated in the dissent in State v. Superior Court. \\\"The threat of unbridled and unhindered criminal prosecution is bound to have a chilling effect upon publishers, libraries, motion picture exhibitors and the like.\\\" Moreover, our consideration of \\u00a7 13-2314 indicates grave constitutional problems which would plague RICO obscenity prosecutions and affect protected activities without judicial guidance as to what constitutional limits must be placed on such prosecutions.\\n2. Vagueness\\nSection 13-2312(B), under which defendants were charged, provides:\\nA person commits illegally conducting an enterprise if such person is employed or associated with any enterprise and conducts or participates in the conduct of such enterprise's affairs through racketeering [i.e., obscenity].\\nSection 13-2312(C) makes that act a class 3 felony. We reject defendants' argument that illegally conducting an enterprise through obscenity is an unconstitutionally vague offense. The basic test for determining whether a statute is unconstitutionally vague is whether the offense is defined in terms that people of average intelligence can understand, since no one may be required, at the risk of his liberty, to speculate as to the meaning of a penal statute. State v. Serrano, 145 Ariz. 498, 702 P.2d 1343 (App.1985).\\nIn Tocco, the defendant argued that the crime of leading organized crime, as set forth in A.R.S. \\u00a7 13-2308, was unconstitutionally vague. This court held that\\nA commonsense reading of the statute demonstrates a legislative intent to punish only those individuals who cooperate with a combination of individuals or businesses with the intent to assist them in violating Arizona's felony statutes on a continuing basis. The statute does not reach any constitutionally protected conduct and its proscriptions are easily understood by persons of ordinary intelligence.\\nSlip op. at 9. The court concluded that the crime of leading organized crime was not unconstitutionally vague. Slip op. at 13.\\nIn Baines v. Superior Court, 142 Ariz. 145, 688 P.2d 1037 (App.1984), Division Two of this court stated that the essential elements of illegally conducting an enterprise are:\\n(1) defendant was employed by or associated with the enterprise;\\n(2) that he conducted or participated in the conduct of the affairs of the enterprise;\\n(3) that he conducted or participated in the conduct of the affairs of the enterprise through racketeering (i.e., through the commission of at least one predicate offense).\\n142 Ariz. at 149, 688 P.2d at 1041. Here the predicate offense of obscenity is referable to the Arizona obscenity statutes, A.R. S. \\u00a7 13-3501 et seq. The definition of racketeering requires that the crime be for financial gain and punishable by imprisonment for more than one year. A.R.S. \\u00a7 13-2301(D)(4). Further, \\u00a7 13-2312(C) requires a knowing violation. The scienter requirement increases the notice to defendant that his conduct is prohibited and prevents arbitrary and discriminatory enforcement. Tocco, slip op. at 13. Thus, we find that \\u00a7 13-2312(B) is not void for vagueness.\\nIn Tocco, this court distinguished Ohio's organized crime statute which was struck down in State v. Young, 62 Ohio St.2d 370, 406 N.E.2d 499, cert. denied, 449 U.S. 905, 101 S.Ct. 281, 66 L.Ed.2d 137 (1980). Defendants have extensively cited Young in support of their vagueness argument. The Arizona statutes do not suffer from the deficiency of the Ohio statute because they do not punish a person who pursues legal activities. Tocco, slip op. at 8. Section 13-2312(B) makes conduct through an enterprise illegal only if it is \\\"through racketeering.\\\" Thus, a defendant is criminally liable in a RICO obscenity prosecution only if he has committed an underlying felony obscenity crime.\\n3. RICO Applied in Obscenity Cases\\nA more difficult question is presented by the application of the RICO remedies in criminal obscenity prosecutions. The only opinion directly considering the constitutionality of applying RICO remedies in obscenity prosecutions is 4447 Corp. v. Goldsmith, 479 N.E.2d 578 (Ind.App.1985), vacated, 504 N.E.2d 559 (Ind.1987). While the Indiana Supreme Court vacated the intermediate appellate court's opinion in AAAI Corp., we discuss the court of appeals' decision because we find it more comprehensive and persuasive than the Indiana Supreme Court's reversal of that decision.\\nIndiana Code Ann. \\u00a7 34-4-30.5-2 & -3 provides that after the trial court finds by a preponderance of the evidence that a RICO violation has occurred, it may: (1) order divestiture of a defendant's interest in the business; (2) prohibit defendant from future activities or investments; (3) order dissolution or reorganization of the enterprise; (4) suspend or revoke licenses, permits, or corporate charters; (5) order forfeiture of property; or (6) make any other order deemed appropriate. The trial court in AAAI' Corp. ordered the padlocking of a bookstore which had not yet opened, and later ordered that the prosecution could padlock three operating bookstores and seize their contents. The police proceeded to seize and cart away the entire contents of the three bookstores.\\nIn AAAI Corp., the intermediate appellate court invalidated the statutes as applied to obscenity on these grounds: (1) as an impermissible prior restraint; (2) for failure to comply with procedural safeguards; and (3) for failure to employ means that are less restrictive of free expression for regulation of materials presumptively protected by the first amendment. 479 N.E.2d at 585. That court, however, primarily relied on the theory that the statutes were facially invalid as applied to obscenity because they constituted impermissible prior restraints on protected speech and press. Id. A clearly impermissible prior restraint was found because the state had padlocked stores and seized books, magazines, films, and other store property, only a small part of which had been alleged to be obscene. Id. at 586. The court was especially concerned that the state's pre-conviction actions had effectively prevented the circulation of presumptively protected materials.\\nThe court also was concerned with the potential post-conviction remedy of forfeiture of defendants' real and personal property, including their inventory. The forfeiture remedy extended to presumptively protected materials, and was thus over-broad and facially invalid as a prior restraint. The court rejected the argument that the forfeiture sanctions were not prior restraints, but were merely punishment for criminal offenses, and concluded that forfeiture of licenses or charters were impermissible prior restraints, and noted that the RICO statute:\\nmay indeed curb the availability of obscenity but cuts a broad swath into the realm of protected expression as well. The consequent overbreadth of these measures with their attendant chilling effect on the exercise of First Amendment rights renders the entire scheme constitutionally invalid. We therefore hold that the injunctive remedies of IC 34-4-30.5-2, and the seizure and forfeiture sanctions of IC 34-30.5-3.-4, constitute facially unconstitutional prior restraints in their application to the predicate offense of obscenity.\\n479 N.E.2d at 592.\\nThe Indiana Supreme Court vacated the court of appeals' decision and held that the Indiana RICO statutes as they pertain to the predicate offense of obscenity do not violate the first and fourteenth amendments to the United States Constitution. The court decided that the RICO remedies were instituted in an attempt to compel the forfeiture of the proceeds of alleged racketeering activity and not to restrain the future distribution of expressive materials.\\nWe believe the court of appeals' decision and the dissent in the Indiana Supreme Court are better reasoned than the majority opinion from the supreme court. The dissenter stated his \\\"agreement with the thoughtful and thorough opinion\\\" of the court of appeals. Nevertheless, we disagree with the all-or-nothing results of both opinions, invalidating the entire statute or validating it in its entirety, as will be shown below. In interpreting Arizona statutes dealing with obscenity, this court has, when possible, given the questioned statute a constitutional construction. Book-Cellar.\\n4. Pre-Judgment Remedies\\nWith the Indiana courts' opinions in mind, we examine the Arizona statutes. A.R.S. \\u00a7 13-2313 provides that during the pendency of a RICO criminal proceeding pursuant to \\u00a7 13-2312 the superior court may issue an order pursuant to \\u00a7 13-2314(B), (C) which provides:\\nB. The superior court has jurisdiction to prevent, restrain, and remedy racketeering as defined by \\u00a7 13-2301, subsection D, paragraph 4 or a violation of \\u00a7 13-2312 after making provision for the rights of all innocent persons affected by such violation and after hearing or trial, as appropriate, by issuing appropriate orders.\\nC. Prior to a determination of liability such orders may include, but are not limited to, entering restraining orders or prohibitions or taking such other actions, including the acceptance of satisfactory performance bonds, the creation of receiverships and the enforcement of constructive trusts, in connection with any property or other interest subject to damages, forfeiture or other remedies or restraints pursuant to this section as the court deems proper.\\nThe state argues that the statutory preconviction remedies \\\"do not provide for penalties prior to conviction, but rather only permit a court to preserve the status quo during the pendency of the proceedings.\\\" Defendants urge that the statutory scheme for pre-conviction remedies is unconstitutional because it restricts constitutionally protected activities and materials.\\nSection 13-2314(B) merely gives the court jurisdiction to prevent, restrain, or remedy racketeering by issuing appropriate orders, after consideration for the rights of all innocent persons affected by such violation and after a hearing or trial. We find no problem with this very general provision. Injunctions or restraining orders must comply with rule 65(h), Arizona Rules of Civil Procedure. Book-Cellar. Moreover, all orders under \\u00a7 13-2314(B) would be subject to the limitations stated hereinafter.\\nNext, we consider the statutory preconviction remedies set forth in \\u00a7 13-2314(C). That section sets forth permissible orders, including, but not limited to, restraining orders or prohibitions, including the acceptance of performance bonds for property subject to damages or forfeiture. The state argues that the purpose of \\u00a7 13-2314(B) is merely to preserve the status quo. One primary and legitimate purpose of a predetermination order would be to ensure that a copy of an allegedly obscene book or movie is available as evidence. Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); City of Phoenix v. Ellwest Stereo Theater, 21 Ariz.App. 611, 522 P.2d 567 (1974). Also, the court could take measures to ensure that a defendant would not conceal or dispose of the profits made from the sale of obscene items which would properly be subject to post-conviction seizure. While the court could restrain a defendant from moving inventory in its entirety, it could not interfere with continued exhibitions or sales. Book-Cellar, Any order requiring action such as forfeiting any property of the business, forfeiting a defendant's interest therein, or closing the business, prior to determination of liability, would be an impermissible prior restraint. Moreover, a preliminary order may not do what a post-conviction order may not do, as we shall discuss. Given these limitations, \\u00a7 13-2314(0) is constitutional.\\n5. Post-Judgment Remedies\\nWe turn now to the post-conviction remedies listed under \\u00a7 13-2314(D), which states:\\nD. Following a determination of liability such orders may include, but are not limited to:\\n1. Ordering any person to divest himself of any interest, direct or indirect, in any enterprise.\\n2. Imposing reasonable restrictions on the future activities or investments of any person, including prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect the laws of this state, to the extent the constitutions of the United States and this state permit.\\n3. Ordering dissolution or reorganization of any enterprise.\\n4. Ordering the payment of treble damages to those persons injured by racketeering as defined in \\u00a7 13-2301, subsection D, paragraph 4 or a violation of \\u00a7 13-2312.\\n5. Ordering the payment of all costs and expenses of the prosecution and investigation of any offense included in the definition of racketeering in \\u00a7 13-2301, subsection D, paragraph 4 or a violation of \\u00a7 13-2312, civil and criminal, including reasonable attorney fees, to be paid to the general fund of the state or county which brings the action.\\n6. Forfeiture to the general fund of the state or county as appropriate to the extent not already ordered to be paid in other damages:\\n(a) Any property or other interest acquired or maintained by a person in violation of \\u00a7 13-2312.\\n(b) Any interest in, security of, claims against or property, office, title, license or contractual right of any kind affording a source of influence over any enterprise or other property which a person has acquired or maintained an interest in or control of, conducted or participated in the conduct of in violation of \\u00a7 13-2312.\\n(c) All proceeds traceable to an offense included in the definition of racketeering in \\u00a7 13-2301, subsection D, paragraph 4 and all monies, negotiable instruments, securities, property and other things of value used or intended to be used to facilitate commission of the offense.\\n7. Payment to the general fund of the state or county as appropriate of an amount equal to the gain that was acquired or maintained through an offense included in the definition of racketeering in \\u00a7 13-2301, subsection D, paragraph 4 or a violation of \\u00a7 13-2312 or that any person is liable for under this section.\\nThe state argues that any order pursuant to \\u00a7 13-2314(D) is permissible because the defendants have been found guilty of the crime of obscenity and may be punished accordingly.\\nSubsections (D)(1), (2) and (3) are virtually identical to the Indiana statutory provisions held valid by the Indiana Supreme Court in 4447 Corp. We agree with the reasoning of the Indiana Court of Appeals in 4447 Corp., 479 N.E.2d 578 (Ind. App.1985), and with the dissent in 4447 Corp., 504 N.E.2d 559 (Ind.1987), that these sanctions act as a prior restraint upon the sale of privileged matter, and that the effect of the restraint is to close bookstores and theatres. The sanctions restrict future, presumptively protected speech, rather than punishing the distribution of unprotected speech in the past. 479 N.E.2d at 591 (Ind.App.). To cite an example posed by defendants, under subsection (D)(1), the owners of bookstores which are not known as \\\"adult\\\" or sexually-oriented bookstores could be ordered to divest themselves of any interest in their stores if one store sold a magazine which is adjudged obscene. See Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.1980). Alternatively, under subsection (D)(3), the court could dissolve or reorganize the business. Without question, such action would constitute an impermissible prior restraint on protected activities.\\nSubsection (D)(4) is not applicable to this criminal action because there is no injured person. It apparently creates a private cause of action or right to restitution with treble damages for persons injured through obscenity. State v. Henderson, 149 Ariz. 254, 717 P.2d 933 (App.1986). An award thereunder would not appear to constitute an impermissible prior restraint, any more than would a fine imposed on the defendant, a remedy which has been held not to constitute a prior restraint in Polykoff v. Collins, 596 F.Supp. 584 (D.Ariz.1984), aff'd, 816 F.2d 1326 (9th Cir.1987).\\nSimilarly, subsection (D)(5), allowing a state or county general fund to be reimbursed for the cost of prosecuting a defendant, is not facially invalid because it does not single out protected interests, but rather applies in all RICO criminal actions and is in the nature of a fine. Minneapolis Star & Trib. Co. v. Minnesota Comm'r of Rev., 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983); Polykoff. Selling obscene matter is a crime, and the defendants can reasonably be required to reimburse the state or county for costs of prosecution.\\nThe remedy in subsection (D)(6) \\u2014forfeiture of interests or proceeds\\u2014is proper to the extent that the obscene materials themselves, or proceeds from materials determined to be obscene, may be seized. State v. A Motion Picture Entitled \\\"The Bet,\\\" 219 Kan. 64, 547 P.2d 760 (1976); United States v. Zang, 703 F.2d 1186 (10th Cir.1982). Also, as held in Western Business Systems, items of the enterprise could be forfeited if they were gains from other racketeering activity. Racketeering proceeds cannot be laundered merely by being invested in bookstores. 4447 Corp., 504 N.E.2d 559 (Ind.1987).\\nOn the other hand, profits from the sales of protected materials\\u2014i.e., items not adjudged obscene\\u2014could not be seized. J-R Distributors, 725 F.2d at 494, rev'd on other grounds sub nom., Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). Also, an order could not forbid the sale of items not yet determined to be obscene. Universal Amusement Co., Inc. v. Vance, 587 F.2d 159 (5th Cir.1978), aff'd, 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980). Moreover, the court could not order the seizure of bookshelves, cash registers, or similar items. Book-Cellar, 139 Ariz. at 533, 679 P.2d at 556.\\nSubsection (D)(7), allowing payment to a general fund of an amount equal to the \\\"gain\\\" acquired through the obscenity offense, is constitutional for the reasons just stated. The provisions for forfeiture under A.R.S. \\u00a7 13-2314(F) are similarly limited as stated above. We note that \\u00a7 13-2314(F)(3) is unconstitutional to any extent that it purports to allow seizure of property used to facilitate an offense where that property is not itself contraband, or traceable to racketeering proceeds. United States v. Zang; Book-Cellar.\\nThe last question facing us is whether, having found some of the RICO remedies unconstitutional as applied to obscenity proceedings, we must declare the entire RICO scheme unconstitutional if applied to obscenity prosecutions. Defendants argue that to leave obscenity as a predicate offense without leaving all of the RICO remedies intact frustrates legislative intent. They argue that the only effect of the partial validation is to elevate a class 6 felony under \\u00a7 13-35023 to a class felony under \\u00a7 13-2312(C). They submit that the eviscerated version of the statute as applied to obscenity would add nothing to the prosecutorial tools now offered by Arizona obscenity statutes and the provisions of the criminal code. The trial court adopted this reasoning. We disagree.\\nFirst, we have not found all the \\u00a7 13-2314 remedies unconstitutional as applied to obscenity cases. The legislature desired to reach obscenity through the RICO statutes to the extent constitutionally allowed. Where an obscenity statute is in part constitutional and in part unconstitutional, if the parts may stand independently of one another, that which is constitutional may stand, while that which is unconstitutional will be rejected. Spokane Arcade.\\nSecond, the legislature, by making obscenity a predicate offense for RICO, and thus punishable as a class 3 felony under \\u00a7 13-2312, has created a different crime than that set forth in \\u00a7 13-3502. As noted herein, there are several elements to the crime of illegally conducting an enterprise through obscenity. Commission of the obscenity offense itself is only one element of that crime. Racketeering organizations can operate through the sale of obscenity just as they operate through any other illegal activity proscribed by \\u00a7 13-2301. The crime of obscenity may be punished because obscenity itself is not protected by the first amendment. Correspondingly, conducting an illegal enterprise dealing in obscenity is punishable as a greater offense than the lesser crime of obscenity, just as the RICO statutes make many other crimes more serious when effected through racketeering.\\n6. Conclusion\\nIn conclusion, we have construed the RICO statutes as they relate to a criminal prosecution involving obscenity, such that they pass constitutional muster and do not have a chilling effect on protected rights. The state's remedies against obscenity under RICO are more limited than the state's remedies against other forms of racketeering activity. These limits are required by the federal and state constitutional rights regarding freedom of speech and press. The state can no more expect to reach protected interests by means of the RICO statutes than it could by means of moral nuisance or obscenity statutes. Book-Cellar; City of Phoenix v. Fine, 4 Ariz.App. 303, 420 P.2d 26 (1966). As stated in the dissent in State ex rel. Collins v. Superior Court [Scott]: \\\"Abhorrence of obscenity does not outweigh our duty to uphold the constitutional rights of free speech and free press.\\\"\\nSince we conclude that the trial court erred in declaring that obscenity could not be used as a predicate offense for RICO prosecutions, we vacate the trial court's order granting the motion to dismiss Count I of the indictment and remand for further proceedings consistent with this opinion.\\nEUBANK and FROEB, JJ., concur.\\n. The United States Supreme Court's opinion in Pope v. Illinois, \\u2014 U.S. -, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987), does not affect our statute. In Pope, the court reaffirmed the tripartite test for judging whether material is obscene, as articulated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The court noted that Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977), held that\\n[T]he first and second prongs of the Miller test\\u2014appeal to prurient interest and patent offensiveness\\u2014are issues of fact for the jury to determine applying contemporary community standards.\\n[As to Miller's third prong], [t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.\\n\\u2014 U.S. at -, 107 S.Ct. at 1920-21, 95 L.Ed.2d at 445. Thus, the third prong of A.R.S. \\u00a7 13-3501(2) must be analyzed according to this reasonable person standard, which is entirely consistent with the language in our statute.\\n. In Western Business Sys., Inc. v. Slaton, 492 F.Supp. 513, 514 (N.D.Ga.1980), plaintiffs asked the trial court to enjoin possible prospective prosecutions using obscenity as a predicate offense for RICO violations. They argued that forfeiture of property acquired with racketeering proceeds acted as a prior restraint on presumptively protected materials. The court held that there was no first amendment problem because the defendants were not entitled to retain racketeering proceeds, nor were they entitled to property acquired by racketeering proceeds, even if that property consisted of books. The court ruled that denial of the injunction was proper because there was no irreparable harm or likelihood of success on the merits of plaintiffs' claim.\\n. A.R.S. \\u00a7 13-3502 has recently been amended so that a violation is a class 5 felony. Laws 1986, ch. 411, \\u00a7 2.\"}"

arizona/1457040.json

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+"{\"id\": \"1457040\", \"name\": \"The STATE of Arizona, Appellee, v. O'Dell MADISON, Appellant\", \"name_abbreviation\": \"State v. Madison\", \"decision_date\": \"1977-01-07\", \"docket_number\": \"No. 3624\", \"first_page\": \"221\", \"last_page\": \"226\", \"citations\": \"114 Ariz. 221\", \"volume\": \"114\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:51:24.650723+00:00\", \"provenance\": \"CAP\", \"judges\": \"STRUCKMEYER, Y. C. J., and HAYS, HOLOHAN and GORDON, JJ., concur.\", \"parties\": \"The STATE of Arizona, Appellee, v. O\\u2019Dell MADISON, Appellant.\", \"head_matter\": \"560 P.2d 405\\nThe STATE of Arizona, Appellee, v. O\\u2019Dell MADISON, Appellant.\\nNo. 3624.\\nSupreme Court of Arizona, In Banc.\\nJan. 7, 1977.\\nBruce E. Babbitt, Atty. Gen. by William J. Schafer, III and Thomas G. Bakker, Asst. Attys. Gen., Phoenix, for appellee.\\nWestover, Choules, Shadle & Bowen, P. C. by Allen J. Clark, Yuma, for appellant.\", \"word_count\": \"2788\", \"char_count\": \"16017\", \"text\": \"CAMERON, Chief Justice.\\nThe defendant, O'Dell Madison, appeals from a jury verdict and judgment of guilt to first degree burglary and grand theft, A.R.S. \\u00a7 13-302 and \\u00a7 13-663, with a prior conviction, A.R.S. \\u00a7 13-1649(A)(1). Sentence was imposed at not less than 12 years nor more than 15 years for the burglary; and not less than 10 years nor more than 12 years for the grand theft, said sentences to run concurrently. This court has jurisdiction pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S.\\nThe issues are:\\n1. Was the defendant twice placed in jeopardy where the trial court sua sponte declared a mistrial over the defendant's objection following a jury verdict of guilt and the defendant was thereafter retried?\\n2. Did the trial court's remarks to the prospective jury panel prejudice the defendant?\\n3. Did the State prove the elements of the crime?\\n4. Was the defendant denied a speedy trial?\\nThe pertinent facts are as follows. By indictment the defendant was charged with committing: burglary and grand theft of the Western Auto Store on 18 April 1975; burglary and grand theft of R\\u00e1seos Dry Goods Store on 12 May 1975; burglary and grand theft of Western Auto on 20 May 1975. The alleged crimes all occurred in Yuma, Arizona. There was, in addition, one count of receiving stolen property. Trial was set for 10 July 1975. Three days before trial the State filed an addendum to the indictment alleging a prior conviction for first degree burglary. The defendant admitted the prior conviction at trial outside the presence of the jury. The jury returned verdicts of guilty to the charge of burglary and of grand theft of Western Auto on 18 April 1975. The defendant received directed verdicts or acquittals on the remaining counts.\\nOn the day set for sentencing, 21 July 1975, the trial court realized that the defendant, who had been tried and convicted by an eight person jury, was, in fact, entitled to have been tried by a twelve person jury under Arizona Constitution and statute and the following transpired:\\n\\\"THE COURT: There is a matter that has just occurred to me. The case was tried by eight jurors, the initial trial proceeding, the trial, of course, proceeding on the various counts that were charged standing by themselves, none of the counts could carry a sentence in excess of 15 years.\\n\\\"MR. CLARK: It just occurred to me what you are getting at, Your Honor.\\n\\\"THE COURT: And I do not subscribe to the theory that simply because he could be convicted, could have been convicted in this case of various crimes which you total them up and consecutive sentences were run without the prior being considered could have exceeded 30 years. I don't know what your attitude is on that, Mr. Clark or Mr. Nelson, but it just doesn't make sense to me that we have to try every person with 12 jurors simply because of the possibilities. I am concerned though with the fact that we did proceed to trial with a prior conviction, on a prior conviction with only eight jurors and nobody raised the question.\\nI didn't even think about it until now which leaves me in the position of thinking that it would be improper to sentence Mr. Madison on the basis of a prior conviction.\\n\\\"MR. CLARK: I would\\u2014I would take that position. I'm a little bit embarrassed that Your Honor is taking over my job.\\n\\\"THE COURT: No more than I am.\\n\\\"MR. CLARK: I didn't think about that, but there's no question that the prior makes it a life end offense which means Mr. Madison was entitled to 12 jurors and I'm sure that Mr. Madison would want to appeal the matter if he did receive something in excess of that figure at this point in time.\\n\\\"THE COURT: The prior conviction requires that he be sentenced\\u2014since the prior, conviction was first degree burglary which is punishable in excess of five years it would require that he be resentenced to not less than ten years and there isn't any maximum stated thereon; consequently, it would seem to me that even though we tried him on the basis o\\u00ed a prior conviction, Mr. Nelson, there is no way that this Court could validly sentence him on the basis of a prior conviction under the circumstances.\\\"\\nAnd:\\n\\\"THE COURT: Number 7797, the State of Arizona versus O'Dell Madison. This matter was continued to this hour having previously been called for the purpose of pronouncement of judgment and sentence at which time I made the observation that we tried the case with eight jurors as opposed to 12, the prior being alleged, we ought to have tried the ease with 12 jurors, at least in my opinion.\\nNow, gentlemen, on my own motion I am declaring a mistrial as to all counts with which Mr. Madison was charged and the matter will be reset for trial on all counts within 60 days of today's date.\\nThe matter will be set down for trial on Wednesday, September 10, 1975, at 9:30. Is there anything further or record either of you gentlemen wish to make at this time?\\n\\\"MR. CLARK: Yes, Your Honor. I'm going to oppose the mistrial primarily upon the grounds that my client has been found not guilty of five of the seven counts with which he was originally charged and I feel that he would be wrongfully placed in jeopardy really as regards all the charges that were brought against him. That's all I have.\\n\\\"THE COURT: Anything, Mr. Nelson?\\n\\\"MR. NELSON: For the record, Your Honor, the State would also oppose the mistrial. We would not set forth any reasons.\\n\\\"THE COURT: I can't satisfy anyone. Well, gentlemen, my ruling will stand. I think it's fundamental that Mr. Madison should have been tried by 12 persons instead of merely eight. I have no question in my mind that he can be tried at least on the counts he was found guilty of, if not all.\\\"\\nThe defendant was retried 19 September 1975 on the charge of burglary and of grand theft of Western Auto on 18 April 1975, the charges for which he was previously convicted, and was again found guilty as to both. The defendant was not retried on the five charges for which he was previously acquitted.\\nDOUBLE JEOPARDY\\nThe issue here is whether a defendant may be retried consonant with the prohibition against double jeopardy of the Fifth Amendment and Arizona Constitution, Art. 2, \\u00a7 10, where the trial court sua sponte declares a mistrial over the defendant's objection, after the jury verdict but before the judgment and sentence.\\nThe United States Supreme Court has consistently followed the approach first announced in United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824) concerning the double jeopardy clause in the context of a declaration of mistrial over the defendant's objection. Perez, supra, states that the trial court is vested with authority to declare a mistrial, and the defendant may be retried consistently with the Fifth Amendment where, taking all circumstances in account, the court finds that \\\"there is a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated.\\\" 9 Wheat, at 580, 6 L.Ed. at 165. The court must scrupulously exercise its sound discretion in determining that the ends of public justice would not be served by a continuation of the proceedings. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).\\nWhile the Supreme Court has emphasized that their double jeopardy decisions are considered \\\"on the particular facts and thus escape meaningful categorization,\\\" Illinois v. Somerville, 410 U.S. 458 at 464, 93 S.Ct. 1066 at 1070, 35 L.Ed.2d 425 at 431 (1973), we think that the circumstances of the instant case can be analogized to previous decisions, summarized by Mr. Justice Rehn quist in Illinois v. Somerville, supra, involving a declaration of mistrial due to some type of serious error in the proceedings. In United States v. Perez, supra, the court held that \\\"manifest necessity\\\" justified the discharge of jurors unable to reach a verdict and therefore the double jeopardy clause did not bar retrial. Retrial was permitted in Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894), where a mistrial was declared after the trial judge learned that one of the jurors had been a member of the grand jury that indicted the defendant, and in Lovato v. New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244 (1916), where after the first jury had been empaneled and sworn they were discharged after the State discovered that the defendant had not pled to the indictment. In Illinois v. Somerville, supra, the respondent was indicted for theft. After the jury was sworn in, the prosecutor realized that the indictment was fatally deficient under Illinois law in that it did not allege an essential element of the crime charged. Such defect could not be waived by the respondent's failure to object and could have been asserted on appeal or in a post-conviction proceeding to overturn a final judgment of conviction. The trial court concluded that further proceedings under the indictment would be useless and ordered a mistrial over the defendant's objection. Justice Rehnquist concluded that in light of the Illinois criminal procedural rules the declaration of a mistrial was manifestly necessary and was not an abuse of the trial court's discretion. He noted:\\n\\\"A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial. If an error would make reversal on appeal a certainty, it would not serve 'the ends of public justice' to require that the Government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court.\\\" 410 U.S. at 464, 93 S.Ct. at 1070, 35 L.Ed.2d at 431.\\nTurning to the facts of the instant case, the defendant faced a potential sentence of not less than ten years to life because of the admitted prior felony conviction. A.R.S. \\u00a7 13-1649(A)(1). Only eight jurors were empaneled at the first trial, although Arizona Constitution, Art. 2, \\u00a7 23 reads:\\n\\\"The right of trial by jury shall remain inviolate. Juries in criminal cases in which a sentence of death or imprisonment for thirty years or more is authorized by law shall consist of twelve persons. In all criminal cases the unanimous consent of the jurors shall be necessary to render a verdict. In all other cases, the number of jurors, not less than six, and the number required to render a verdict, shall be specified by law.\\\"\\nAnd our statute reads as follows:\\n\\\"A. A jury for trial of a criminal case in which a sentence of death or imprisonment for thirty years or more is authorized by law shall consist of twelve persons, and the concurrence of all shall be necessary to render a verdict.\\n*\\n\\\"E. The parties in a civil case, and the parties with the consent of the court in a criminal case, may waive trial by jury, or at any time before a verdict is returned consent to try the case with or receive a verdict concurred in by a lesser number of jurors than that specified above.\\\" A.R.S. \\u00a7 21-102(A) and (E).\\nHad the trial judge not declared a mistrial and had proceeded to sentence the defendant \\\"reversal on appeal [would have been] a certainty.\\\" Illinois v. Somerville, supra; Porter v. Superior Court, 104 Ariz. 36, 448 P.2d 92 (1968). By declaring a mistrial and ordering retrial with a twelve person jury even after the jury had returned a verdict, Houp v. State of Nebraska, 427 F.2d 254 (8th Cir. 1970), the court prevented a possible reversal on appeal and corrected the error and afforded the defendant a second opportunity to defend against the charge.\\nWe note also that even if the trial court was in error in granting a mistrial, we see no prejudice to the defendant. By the trial court's ruling, the defendant received a new trial which he might not have otherwise been entitled to. If the court was in error, there certainly was no prejudice to the defendant.\\nREMARKS OF THE TRIAL COURT\\nA different judge presided over the second trial. The State was proceeding only on the two counts of which the defendant had been convicted at the first trial. In his introductory remarks to the prospective jury panel the judge stated:\\n\\\"By an Indictment returned in this court by the Grand Jury the defendant is charged with various criminal offenses. He now, of course, is before the court for the purpose of being tried upon these offenses.\\\"\\nShortly thereafter the judge said:\\n\\\"Are any of you ladies and gentlemen involved or connected in any way with R\\u00e1seos?\\\"\\nAt this point the prosecutor and defense counsel approached the bench and a discussion was held off the record. The court then stated to the jury panel:\\n\\\"I made a mistake, ladies and gentlemen, R\\u00e1seos is not involved in the case in any way. It's only the Western Auto Store.\\\"\\nDuring the recess which followed, the defense counsel motioned for a mistrial on the basis that the above remarks had implicated the defendant in other offenses to his prejudice. The court denied the motion. When the twelve jurors were empaneled and sworn, the court stated:\\n\\\"Ladies and gentlemen, as you heard the court state a few moments ago, and as you will hear the clerk read in a few moments, the defendant, O'Dell Madison, was charged with two offenses. One is burglary. The other is grand theft.\\\"\\nWe do not believe the defendant was prejudiced in any way by these remarks. The jury could have easily ascribed the reference to \\\"R\\u00e1seos\\\" as a mere oversight on the court's part. Any error was cured by the court's immediate correction. Any potential prejudice resulting from the inadvertent reference to the defendant's being charged with \\\"various criminal offenses\\\" was dissipated, we think, when the court later clarified the phrase before the empaneled jury to mean that the defendant was charged with burglary and grand theft. State v. Foster, 83 N.M. 128, 489 P.2d 408 (1971); McCracken v. State, 431 P.2d 513 (Alaska 1967).\\nDID THE STATE PROVE THE ELEMENTS OF THE CRIME?\\nDefendant contends that the State did not prove the elements of the crime of grand theft because of the failure to show that the property belonged to another.\\nTheft is the \\\"felonious stealing, taking, carrying, leading or driving away the personal property of another.\\\" A.R.S. \\u00a7 13-661(A)(1). The evidence indicates that the property was taken from Western Auto and defendant stated in his brief:\\n\\\"Clearly, Western Auto is not a person. If the indictment had charged Western Auto, a corporation, and proof had been presented that it in fact was a corporation element of possession or ownership would have been proven since a corporation is in fact a person under the law. However, no evidence was presented at trial that Western Auto is a corporation. Further no evidence was presented as to who owned Western Auto.\\\"\\nIf this be a valid objection, the testimony indicates that Western Auto was, in fact, identified as a corporation:\\n\\\"Q Mr. Garcia, who owns the store?\\n\\\"A The store is owned by the Western Auto Company.\\\"\\nWe find no error.\\nSPEEDY TRIAL\\nThe defendant contends that he was denied a speedy trial upon retrial under Rule 8.2(b), Arizona Rules of Criminal Procedure (1973), because of the delay occasioned by the mistrial. Since we have found that it was manifestly necessary for the trial court to declare a mistrial, Rule 8.2(d) applies. Rule 8.2(d) provides that a trial ordered after a mistrial shall commence within 60 days of the entry of the order of the court. The order for mistrial was entered 21 July 1975. The defendant was retried on 19 September 1975, the 60th day under the rule. We find no error.\\nJudgment affirmed.\\nSTRUCKMEYER, Y. C. J., and HAYS, HOLOHAN and GORDON, JJ., concur.\"}"

arizona/1457124.json

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+"{\"id\": \"1457124\", \"name\": \"The STATE of Arizona, Appellee, v. Jose Manuel GARCIA, Appellant\", \"name_abbreviation\": \"State v. Garcia\", \"decision_date\": \"1977-02-16\", \"docket_number\": \"No. 3626\", \"first_page\": \"317\", \"last_page\": \"321\", \"citations\": \"114 Ariz. 317\", \"volume\": \"114\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:51:24.650723+00:00\", \"provenance\": \"CAP\", \"judges\": \"STRUCKMEYER, V. C. J., and HAYS, HOLOHAN and GORDON, JJ., concur.\", \"parties\": \"The STATE of Arizona, Appellee, v. Jose Manuel GARCIA, Appellant.\", \"head_matter\": \"560 P.2d 1224\\nThe STATE of Arizona, Appellee, v. Jose Manuel GARCIA, Appellant.\\nNo. 3626.\\nSupreme Court of Arizona, In Banc.\\nFeb. 16, 1977.\\nBruce E. Babbitt, Atty. Gen., by William J. Schafer, III, and Galen H. Wilkes, Asst. Attys. Gen., Phoenix, for appellee.\\nRoss P. Lee, Maricopa County Public Defender, by Edmund T. Allen, III, Deputy Public Defender, Phoenix, for appellant.\", \"word_count\": \"2005\", \"char_count\": \"11507\", \"text\": \"CAMERON, Chief Justice.\\nThe defendant, Jose Manuel Garcia, appeals from a jury verdict and judgment of guilt to the crime of assault with a deadly weapon, A.R.S. \\u00a7 13-249(B), and a sentence of not less than five years nor more than six years in the Arizona State Prison.\\nWe have jurisdiction pursuant to Rule 47(e)(5), 17A A.R.S., Arizona Supreme Court Rules.\\nThe defendant raises six issues on appeal. We feel, however, that we need consider only three:\\n1. Was it error to sentence the defendant under A.R.S. \\u00a7 13-249(B) rather than A.R.S. \\u00a7 13-249(A)?\\n2. Did the court properly instruct the jury on the issue of self-defense?\\n7. Did the court err in denying defendant's motion for change of judge?\\nAt approximately 11:00 on the evening of 3 July 1975, Roy Aguilar, age 16, his brother Oscar, and a friend named Charles Seitz were standing in the front yard of a residence located in the 4000 block of West Topeka, in Maricopa County. The defendant Jose Garcia drove by. With him as passengers were three of his brothers, Manuel, Andy and Danny Garcia, and a companion named Bill Bodine. Oscar Aguilar called out in recognition and Jose Garcia stopped. The two groups began to engage in some bantering. At one point one of Jose Garcia's younger brothers opened the car door and vomited near Roy Aguilar, who was leaning against the vehicle. The testimony indicated that earlier the Garcias and Bodine had been at a drive-in where they consumed a 12-pack of beer. Roy Aguilar remarked \\\"What's he throwing up on, dope?\\\" Jose Garcia got out of the car and strode up to Roy, saying repeatedly \\\"Are you looking for a fight?\\\" Roy, who had homemade nunchakus (ch\\u00ednese fighting sticks) slung over his shoulder, laughed in response. At this point the testimony conflicts. Roy Aguilar, Oscar Aguilar and Charles Seitz testified that Jose Garcia punched Roy in the mouth and stabbed him in the abdomen with a switchblade knife, and then Roy hit Jose over the head with the nunchakus, which in fact broke after the blow. Jose Garcia testified that he merely pushed Roy, whereupon Roy struck Jose with the nunchakus and Jose pulled out his switchblade knife and stabbed Roy in self-defense.\\nAfter this initial exchange of blows, the Garcias and Bodine piled out of the car and began to fight with Roy, who was flailing away with his broken nunchakus. Oscar Aguilar joined in the fracas. Roy Aguilar broke away and went a few feet into a shallow ditch where he stumbled over an abandoned bicycle. The Garcias and Bodine caught up to him and Jose Garcia stabbed him twice deeply in the chest and slashed him while the others pummeled away. Roy again broke loose and staggered up the driveway, Jose and Manny Garcia in pursuit. He collapsed against a parked car. He later testified that Jose and Manny punched him some more and then one of them declared \\\"This is what you get for messing with the Garcias.\\\"\\nRoy Aguilar sustained seven to eight knife wounds. The switchblade knife used in the assault was never recovered. The defendant testified that it had a three inch blade but the surgeon who treated Roy testified that one of the stab wounds was four to five inches in depth.\\nWAS IT ERROR TO SENTENCE THE DEFENDANT UNDER \\u00a7 13-249(B)?\\nThe defendant argues that he should have been sentenced under A.R.S. \\u00a7 13-249(A) instead of A.R.S. \\u00a7 13-249(B). De fendant s argument is two-prong. First, he argues that the information charging him with assault with a deadly weapon gave no notice that he was to be prosecuted under the enhanced punishment provisions of subsection B of A.R.S. \\u00a7 13-249. Second, that the \\\"or other deadly weapon\\\" language of subsection B does not encompass a knife. As to the second contention, State v. Williams, 110 Ariz. 104, 515 P.2d 849 (1973) held that a knife is a deadly weapon for the purposes of subsection B of A.R.S. \\u00a7 13-249 and is dispositive of defendant's argument. As to defendant's first contention, that the court erred in sentencing the defendant under subsection B of A.R.S. \\u00a7 13-249, we must look to the statute and the information to see if the defendant was put on notice that he would receive the enhanced punishment A.R.S. \\u00a7 13-249(B) imposes. The statute states:\\n\\u04a4 13-249. Assault with a deadly weapon or force; punishment\\n\\\"A. A person who commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury, shall be punished by imprisonment in the state prison for not less than one nor more than ten years, by a fine not exceeding five thousand dollars, or both.\\n\\\"B. A crime as prescribed by the terms of subsection A, committed by a person armed with a gun or other deadly weapon, is punishable by imprisonment in the state prison, for the first offense, for not less than five years, for a second offense, not less than ten years, for a third or subsequent offense, not less than twenty years nor more than life imprisonment, and in no case, except for first offense committed by a person armed with a deadly weapon other than a gun, shall the person convicted be eligible for suspension or commutation of sentence, probation, pardon or parole until such person has served the minimum sentence imposed.\\\" (emphasis supplied)\\nThe information charging the defendant with assault with a deadly weapon read in part:\\n\\\"IN THE NAME AND BY THE AUTHORITY OF THE STATE OF ARIZONA, JOSE MANUEL GARCIA is accused this 16th day of July, 1975, by the County Attorney of Maricopa County, State of Arizona, by this Information, of the crime of ASSAULT WITH A DEADLY WEAPON, a felony, committed as follows, to-wit:\\n\\\"The said JOSE MANUEL GARCIA, on or about the 3rd day of July, 1975, and before the filing of this Information at and in the County of Maricopa, State of Arizona, while armed with a gun or deadly weapon, assaulted Roy Aguilar, with a deadly weapon or instrument, to-wit: a knife, all in violation of A.R.S. \\u00a7 13-249 (emphasis added)\\nThe facts of the case can support a conviction under either subsections A or B. The information is confusing in that it merely uses the statute number (\\u00a7 13-249) and does not indicate subsection A or B and uses language peculiar to subsections A and B. The phrase \\\"gun or deadly weapon\\\" naturally draws the reader's (and the defendant's) attention to subsection B. See State v. Adrian, 24 Ariz.App. 344, 538 P.2d 773 (1975). However, the phrase \\\"deadly weapon or instrument\\\" is peculiar to subsection A and it is not unreasonable that a defendant could believe that he was being charged under subsection A and not subsection B. We have previously stated in a similar situation:\\n\\\"Neither by specific language in the information nor by the section number of \\u00a7 13-249 A.R.S. was the defendant or his attorney put on notice that he was to be convicted of the greater offense under subsection B rather than the lesser offense under subsection A. From the facts the defendant could have been convicted under either subsection A or B as the facts support such a conviction. In the instant case we believe that the State should have charged under subsection B if it wanted a conviction under subsection B. Having failed to do so, we feel that subsection A should apply.\\\" State v. Cas taneda, 111 Ariz. 264, 268, 528 P.2d 608, 612 (1974).\\nWe therefore hold that it was error to sentence defendant under subsection B rather than subsection A.\\nSELF-DEFENSE INSTRUCTIONS\\nDefendant raised the issue of self-defense and asked for an instruction based upon a prior Arizona case which reads:\\n\\\"Although self-defense has been classified as an 'affirmative plea' of the defendant (Judd v. State, 41 Ariz. 176, 193, 16 P.2d 720), that has been held not to mean that the defendant has the burden to prove that plea by a preponderance of evidence, or otherwise, (citations omitted) The State's burden to prove beyond a reasonable doubt that the defendant committed the crime goes to the whole case, including the plea or justification based on self-defense.\\n\\\"As was stated in Spence v. Territory, supra [13 Ariz. 20, 108 P. 229], the defendant's burden with respect to his plea of self-defense extends\\n'no further than to raise in the minds of the jury a reasonable doubt as to whether his act was justifiable.' (13 Ariz. at page 25, 108 P. at page 229.)\\\"\\nEverett v. State, 88 Ariz. 293, 296-97, 356 P.2d 394, 397 (1960).\\nThe court refused to give the instruction.\\nWe have read the instructions as a whole and while the jury was extensively instructed as to burden of proof, we do not believe the jury was sufficiently instructed as to the burden placed on the State once the issue of self-defense was raised by the defendant.\\nThe trial court was in error in refusing to give defendant's requested instruction on the burden of proof required of the State when the issue of self-defense had been properly raised.\\nDENIAL OF MOTION FOR CHANGE OF JUDGE\\nOn 15 January 1976, the trial judge sentenced the defendant to not less than five years in the Arizona State Prison. The defendant then filed a motion for modification of sentence along with a companion motion for change of judge for cause under Rule 10.1, Arizona Rules of Criminal Procedure (1973). The basis for the latter motion was that a fair and impartial hearing on modification of sentence could not be had by reason of the alleged prejudice exhibited by the judge against the defendant.\\nRule 10.1 provides for change of judge for cause as distinguished from Rule 10.2, change of judge upon request. Change of judge under Rule 10.2 must be made before the judge has made a decision in the matter. State v. Smith, 111 Ariz. 149, 526 P.2d 392 (1974).\\nA motion for change of judge for cause pursuant to Rule 10.1 may be made when the cause is discovered even if the judge has ruled in the matter. Subsection (b) of Rule 10.1 reads as follows:\\n\\\"b. Procedure. Within 10 days after discovery that grounds exist for change of judge a party may file a motion verified by affidavit of the moving party and alleging specifically the grounds for the change. No event occurring before the discovery shall constitute a waiver of rights to change of judge for cause.\\\"\\nSection (c) requires the matter be heard by another judge\\nThe defendant contends that the judge erred in ruling on the motion for change of judge instead of transferring the case to the presiding judge in accordance with Rule 10.1. We agree.\\nRule 10.1 requires the presiding judge to provide a hearing on the motion before a judge other than the judge challenged. The trial judge had no jurisdiction to rule on the defendant's motion.\\nThe matter is remanded for a new trial based upon the error in instructing the jury on the burden of proof where the issue is self-defense. Should the matter be assigned to the same trial judge, defendant may reassert his previous motion for change of judge pursuant to Rules 10.1 and 10.4, as well as 10.2, Arizona Rules of Criminal Procedure. The prosecution may amend the information to give notice to the defendant under which subsection of A.R.S. \\u00a7 13-249 the State is proceeding.\\nSTRUCKMEYER, V. C. J., and HAYS, HOLOHAN and GORDON, JJ., concur.\"}"

arizona/1459082.json

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+"{\"id\": \"1459082\", \"name\": \"STATE of Arizona, ex rel. Charles L. MILLER, Director, Department of Transportation, Petitioner, v. Honorable Charles A. FILLER, Judge of the Superior Court of Maricopa County, Arizona, Respondent. TITLE USA (formerly U.S. Life Title Company of Arizona), an Arizona corporation, as Trustee under Trust No. 1036; Paloma Corporation; Hunt-Stephens Investments; Paul A. Hope, as Trustee of the William Herbert Hunt Trust Estate; A. Paul Stephens, Sr.; A. Paul Stephens, Jr.; Elizabeth Jane Stephens; Skunk Creek Properties, Inc.; Arrowhead Plaza Partners; Lawyers Title of Arizona, as Trustee of Trust No. 1378; Circle K Corporation; Southwest Savings; First Interstate Bank; Security Pacific Bank; Doris F. White; and Estate of E. Brooke White, Real Parties in Interest. TITLE USA (formerly U.S. Life Title Company of Arizona), an Arizona corporation, as Trustee under Trust No. 1036; Paloma Corporation; Hunt-Stephens Investments; Paul A. Hope, as Trustee of the William Herbert Hunt Trust Estate; A. Paul Stephens, Sr.; A. Paul Stephens, Jr.; Elizabeth Jane Stephens; Skunk Creek Properties, Inc.; Arrowhead Plaza Partners; Lawyers Title of Arizona, as Trustee of Trust No. 1378; Circle K Corporation; Southwest Savings; First Interstate Bank; Security Pacific Bank; Doris F. White; and Estate of E. Brooke White, Petitioners, v. Honorable Charles A. FILLER, Judge of the Superior Court of Maricopa County, Arizona, Respondent. STATE of Arizona, ex rel. Charles L. MILLER, Director, Department of Transportation, Real Party in Interest\", \"name_abbreviation\": \"State ex rel. Miller v. Filler\", \"decision_date\": \"1991-03-21\", \"docket_number\": \"Nos. CV-90-0320-SA, CV-90-0319-SA\", \"first_page\": \"147\", \"last_page\": \"153\", \"citations\": \"168 Ariz. 147\", \"volume\": \"168\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:52:10.305930+00:00\", \"provenance\": \"CAP\", \"judges\": \"GORDON, C.J., FELDMAN, V.C.J., and CAMERON and MOELLER, JJ\\u201e concur.\", \"parties\": \"STATE of Arizona, ex rel. Charles L. MILLER, Director, Department of Transportation, Petitioner, v. Honorable Charles A. FILLER, Judge of the Superior Court of Maricopa County, Arizona, Respondent. TITLE USA (formerly U.S. Life Title Company of Arizona), an Arizona corporation, as Trustee under Trust No. 1036; Paloma Corporation; Hunt-Stephens Investments; Paul A. Hope, as Trustee of the William Herbert Hunt Trust Estate; A. Paul Stephens, Sr.; A. Paul Stephens, Jr.; Elizabeth Jane Stephens; Skunk Creek Properties, Inc.; Arrowhead Plaza Partners; Lawyers Title of Arizona, as Trustee of Trust No. 1378; Circle K Corporation; Southwest Savings; First Interstate Bank; Security Pacific Bank; Doris F. White; and Estate of E. Brooke White, Real Parties in Interest. TITLE USA (formerly U.S. Life Title Company of Arizona), an Arizona corporation, as Trustee under Trust No. 1036; Paloma Corporation; Hunt-Stephens Investments; Paul A. Hope, as Trustee of the William Herbert Hunt Trust Estate; A. Paul Stephens, Sr.; A. Paul Stephens, Jr.; Elizabeth Jane Stephens; Skunk Creek Properties, Inc.; Arrowhead Plaza Partners; Lawyers Title of Arizona, as Trustee of Trust No. 1378; Circle K Corporation; Southwest Savings; First Interstate Bank; Security Pacific Bank; Doris F. White; and Estate of E. Brooke White, Petitioners, v. Honorable Charles A. FILLER, Judge of the Superior Court of Maricopa County, Arizona, Respondent. STATE of Arizona, ex rel. Charles L. MILLER, Director, Department of Transportation, Real Party in Interest.\", \"head_matter\": \"812 P.2d 620\\nSTATE of Arizona, ex rel. Charles L. MILLER, Director, Department of Transportation, Petitioner, v. Honorable Charles A. FILLER, Judge of the Superior Court of Maricopa County, Arizona, Respondent. TITLE USA (formerly U.S. Life Title Company of Arizona), an Arizona corporation, as Trustee under Trust No. 1036; Paloma Corporation; Hunt-Stephens Investments; Paul A. Hope, as Trustee of the William Herbert Hunt Trust Estate; A. Paul Stephens, Sr.; A. Paul Stephens, Jr.; Elizabeth Jane Stephens; Skunk Creek Properties, Inc.; Arrowhead Plaza Partners; Lawyers Title of Arizona, as Trustee of Trust No. 1378; Circle K Corporation; Southwest Savings; First Interstate Bank; Security Pacific Bank; Doris F. White; and Estate of E. Brooke White, Real Parties in Interest. TITLE USA (formerly U.S. Life Title Company of Arizona), an Arizona corporation, as Trustee under Trust No. 1036; Paloma Corporation; Hunt-Stephens Investments; Paul A. Hope, as Trustee of the William Herbert Hunt Trust Estate; A. Paul Stephens, Sr.; A. Paul Stephens, Jr.; Elizabeth Jane Stephens; Skunk Creek Properties, Inc.; Arrowhead Plaza Partners; Lawyers Title of Arizona, as Trustee of Trust No. 1378; Circle K Corporation; Southwest Savings; First Interstate Bank; Security Pacific Bank; Doris F. White; and Estate of E. Brooke White, Petitioners, v. Honorable Charles A. FILLER, Judge of the Superior Court of Maricopa County, Arizona, Respondent. STATE of Arizona, ex rel. Charles L. MILLER, Director, Department of Transportation, Real Party in Interest.\\nNos. CV-90-0320-SA, CV-90-0319-SA.\\nSupreme Court of Arizona, En Banc.\\nMarch 21, 1991.\\nReconsideration Denied May 21, 1991.\\nRobert K. Corbin, Atty. Gen. by James R. Redpath, Joe Acosta, Jr., Laurie Woodall, Phoenix, for the State.\\nSacks, Tierney, Kasen & Kerrick, P.A. by Robert V. Kerrick, Jean W. Rice, Leslie A. McCarthy, Phoenix, for Title USA, et al.\", \"word_count\": \"3490\", \"char_count\": \"21717\", \"text\": \"OPINION\\nCORCORAN, Justice.\\nIn this consolidation of two special action petitions, we address whether the trier of fact in a condemnation proceeding may consider the effect of construction delay on a property's market value when determining severance damages and special benefits. This issue arises in connection with eminent domain proceedings initiated for construction of the Outer Loop Freeway in the Phoenix area. Charles L. Miller, Director of the Arizona Department of Transportation (DOT), filed a special action petition against the respondent judge and several condemnees, asserting that the trial court had improperly ruled that a jury in a condemnation case may consider evidence of construction delay in measuring special benefits to property partially taken to accommodate the freeway. Title USA and other condemnees (collectively, Title USA) also filed a special action petition, arguing in contrast that the trial court's ruling was incorrect because it prohibited the jury from also considering construction delay for purposes of severance damages.\\nDOT's exercise of eminent domain against the condemnees in these proceedings is the largest in Arizona history and will result in at least 9 separate condemnation trials in which construction delay may be at issue. Therefore, pursuant to Ariz. Const. art. 6, \\u00a7 5(1) and 5(3), and rule 7(c), Arizona Rules of Procedure for Special Actions, we accept jurisdiction of both petitions to resolve this question.\\nFacts and Procedural History\\nThe condemnation proceeding from which these special actions arise is the first in a series of trials concerning property taken to facilitate construction of the northwest section of the Outer Loop Freeway. This action involves the partial taking of two commercially-zoned parcels of land owned by Title USA and located within the Arrowhead Ranch development in Glendale.\\nAt issue is the proper method for measuring just compensation for Title USA. Before trial, DOT moved to prevent Title USA from introducing evidence that delay in constructing the freeway would diminish the market value of its remaining property. DOT argued that any \\\"after\\\" valuation of the property must assume that the freeway was completed and fully operational immediately after the taking. In response, Title USA argued that, although proximity to a freeway interchange might eventually ben efit the remaining property, the market value after the taking actually decreased because the portion of the freeway adjacent to the land would not operate at maximum capacity for approximately 6 to 9 years after the date of the property's valuation.\\nThe trial court denied DOT's motion in limine and ruled that Title USA's appraisers could testify regarding the effects of delay on both severance damages and special benefits. DOT filed a special action petition with the court of appeals challenging the trial court's ruling, but the appellate court refused to stay the trial pending disposition of the special action request.\\nAfter opening arguments, the trial court sua sponte reversed its ruling on DOT's motion and prohibited any testimony concerning construction delay. In response to Title USA's request for reconsideration, the trial court amended its ruling to allow Title USA to cross-examine DOT's appraisers concerning the effect of construction delay on special benefits, but prohibiting the introduction of evidence concerning the effect of construction delay on severance damages. The trial court then granted a mistrial because of the prejudicial effects to the parties of its reversal on the construction delay issue, and it continued the condemnation proceeding to allow the court of appeals to rule on DOT's special action request. The court of appeals, however, declined jurisdiction. Both Title USA and DOT then submitted special action petitions to this court.\\nDiscussion\\nI. Just Compensation\\nThe Arizona Constitution prohibits the taking of private property without just compensation to the owner. Ariz.Const. art. 2, \\u00a7 17. \\\"Just compensation\\\" implies the full monetary equivalent of the loss sustained by the owner whose land the government has taken or damaged. See United States v. Miller, 317 U.S. 369, 373, 63 S.Ct. 276, 279, 87 L.Ed. 336 (1943) (decided under the fifth amendment to the United States Constitution, which provides: \\\"nor shall private property be taken for public use, without just compensation\\\"); see also 3 J. Sackman, Nichols' The Law of Eminent Domain \\u00a7 8.6, at 8-119 (rev. 3d ed.1990) (hereafter Nichols). The purpose of just compensation is to place the property owner in the position he or she would have occupied had no taking occurred. See Defnet Land & Inv. Co. v. State ex rel. Herman [I], 103 Ariz. 388, 389-90, 442 P.2d 835, 836-37 (1968); see also Miller, 317 U.S. at 373, 63 S.Ct. at 279-80; Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78 L.Ed. 1236 (1934).\\nIn determining just compensation in a partial taking case, Arizona courts consider (1) the market value of the property actually taken by the condemnation and (2) the diminution in the remaining property's market value caused by the taking. See Suffield v. State, 92 Ariz. 152, 156, 375 P.2d 263, 266 (1962); see generally Note, Eminent Domain: Admissibility of Planned Uses for Condemnation Valuation, 25 Ariz.L.Rev. 761 (1983). This formula is codified by A.R.S. \\u00a7 12-1122(A). Severance damages, the second element in the just compensation formula, are offset by any special benefits the remaining prop erty receives because of the proposed improvement, see A.R.S. \\u00a7 12-1122(A)(3), and are measured by the difference between the fair market value of the remaining property before and after the taking. See Haney v. City of Tucson, 13 Ariz.App. 296, 297, 475 P.2d 955, 956 (1970). \\\"Fair market value\\\" is the highest price the property will bring if offered for sale on the open market, allowing for reasonable time to find a purchaser knowing all uses and purposes to which the property is adapted and for which it is capable. Mandl v. City of Phoenix, 41 Ariz. 351, 354, 18 P.2d 271, 272 (1933).\\nIn this case, therefore, the State must compensate Title USA not only for the land taken to accommodate the freeway, but also for the corresponding reduction in the value of the remaining commercially-zoned property. The date of valuation is the date of summons, February 13, 1987, see A.R.S. \\u00a7 12-1123(A), and in determining severance damages, we measure the property's \\\"before\\\" value by its fair market value on that date. The parties disagree, however, on the proper method for measuring the remaining property's \\\"after\\\" value.\\nII. A.R.S. \\u00a7 12-1122 and Construction Delay\\nIn its petition, DOT asserts that \\u00a7 12-1122(A) requires the jury to measure both severance damages and special benefits by applying the fiction that the freeway was completed and fully operational immediately following the taking. In other words, DOT argues that the statute's reference to damages caused by \\\"construction of the improvement in the manner proposed by the plaintiff\\\" indicates that severance damages and special benefits reflect only the impact of the completed project on the remaining property's fair market value, not unavoidable incidental factors such as extended construction delay. Accordingly, under DOT's analysis, Title USA may not introduce evidence of the effects of construction delay on the market value of its remaining property.\\nDOT relies on language in Defnet Land & Inv. Co. v. State ex rel. Herman [II], which states that a parcel's \\\"after\\\" value is \\\"the value of the remainder after the strip of land is taken off and after the construction of the improvements.\\\" 14 Ariz.App. 96, 102, 480 P.2d 1013, 1019 (1971) (emphasis added); see also Mastick v. State, 118 Ariz. 366, 370, 576 P.2d 1366, 1370 (App. 1978) (damages \\\"measured by the difference between the value of the remainder before and after the taking and construction\\\") (emphasis added). DOT also claims that People by Department of Public Works v. Schultz Co., 123 Cal.App.2d 925, 268 P.2d 117 (1954), the \\\"leading California case\\\" on this subject, requires the jury to determine severance damages and special benefits by assuming that the proposed improvement is immediately completed. Because the Arizona legislature adopted A.R.S. \\u00a7 12-1122 from California, this court has held that California law is very persuasive when interpreting our condemnation statute. Viliborghi v. Prescott School Dist., 55 Ariz. 230, 232, 100 P.2d 178, 179 (1940).\\nIn Schultz, the California Public Works Department sought to condemn highway frontage necessary for freeway expansion and construction. At trial, the property owner offered a jury instruction that severance damages must be measured by conditions existing on the date the State filed the complaint, but without considering when or whether the freeway would ever be constructed. Applying a statute identical to A.R.S. \\u00a7 12-1122, the California court rejected the proposed instruction and held that the statute required the jury to assume that the improvement was completed. 123 Cal.App.2d at 933, 268 P.2d at 123.\\nWe do not believe, however, that Defnet and Schultz are dispositive in this case. The predominant concern in any condemnation taking is the constitutional requirement that the property owner receive just compensation. Any damage award, regardless of the formula by which it is obtained, must satisfy that requirement. As the Arizona Court of Appeals has held:\\nThe Constitution, both State and Federal, requires \\\"just compensation\\\". This Court holds that in meeting this test the trial court must use the measure of damages [that] is most appropriate under the circumstances to insure fair compensation to the landowner whose property rights are taken. The constitutional test makes it mandatory upon the trial court to determine what is fair and just compensation, and to use this method or formula to arrive at [the] amount of damages.\\nState ex rel. Herman v. Southern Pac. Co., 8 Ariz.App. 238, 242, 445 P.2d 186, 190 (1968).\\nThus, although the compensation formula applied in Defnet and Schultz may have been the \\\"most appropriate\\\" under the circumstances of those cases, the true issue in this case is whether, to ensure just compensation, Title USA must be allowed to offer evidence of the effect construction delay will have on the market value of its property remaining after the taking. We conclude that it must be allowed to present that evidence.\\nIII. Market Value and Construction Delay\\nA leading eminent domain treatise states:\\nWhere a partial taking is effected by eminent domain, the general rule is that any element of damage which results in a diminution of value of the remainder area is a factor which must be considered. The different elements of damage to remaining land recoverable when part of a tract is taken are as numerous as the possible forms of injury. The mere fact that injuries will be temporary and incident to the period of construction only is no ground for disallowing recovery, since a purchaser might pay less if he knew such injuries were to be inflicted.\\nNichols \\u00a7 14.08, at 14-187 through -190.\\nConsistent with this approach, the Arizona Court of Appeals has held that any factor bearing on the market value of a retained parcel is admissible. State ex rel. Miller v. J.R. Norton Co., 158 Ariz. 50, 52, 760 P.2d 1099, 1101 (App.1988); accord San Diego Gas & Elec. Co. v. Daley, 205 Cal.App.3d 1334, 1345, 253 Cal.Rptr. 144, 150 (1988) (condemnee should be compensated for any characteristic of the project that causes an adverse impact on the fair market value of the remainder). For example, in Moschetti v. City of Tucson, the court of appeals held admissible evidence of a possible rezoning of a residential parcel into commercial property and the effect of that prospect on the land's market value. The court concluded that evidence having \\\"a material bearing on market value should be admissible, without regard to whether it relates to an eventuality that might or might not occur in the 'near' or more 'distant' future, as long as the prospect of the event has substantial present influence on market value.\\\" 9 Ariz.App. 108, 113, 449 P.2d 945, 950 (1969) (emphasis added).\\nThe 6 to 9 year construction delay in this case could have a substantial present influence on the property's market value. A potential purchaser today conceivably will pay less for commercial property adjacent to a freeway that will not be fully constructed for several years than he or she will pay for comparable property at an interchange that is completed and functioning. In other words, the delay places a cloud upon the property that may reduce its appeal to prospective buyers, potentially lowering the property's market value, and thereby creating a real and present injury. See City of Salinas v. Homer, 106 Cal.App.3d 307, 165 Cal.Rptr. 65 (1980) (property owners awarded damages because they would be required to advise potential purchasers that the city owned a strip of land that, in the future, it could use for purposes other than underground utilities).\\nFor example, prior to the taking in this case, the Circle K Corporation held a lease from Title USA on the property adjacent to the freeway. Assuming that Circle K exercised the lease's extension options, the agreement would have provided Title USA with $90,000 income per year for 30 years. According to Title USA, however, Circle K canceled the lease, pursuant to its terms, because it concluded that construction delay would diminish the location's profitability. Although the finder of fact must determine what weight to give this evidence when measuring damages, we have held that rental income is a proper element to consider when valuing property because it affects the price a willing buyer would pay and a willing seller would accept. See Stockholders & Spouses of Carioca Co. v. Superior Court, 141 Ariz. 506, 509, 687 P.2d 1261, 1264 (1984); see also State v. Hollis, 93 Ariz. 200, 204, 379 P.2d 750, 752 (1963). Thus, to preclude Title USA from offering evidence of the impact of construction delay on market value would ignore our responsibility in condemnation proceedings \\\"to bring the values of the real-world market place into the courtroom.\\\" See Moschetti, 9 Ariz.App. at 112-13, 449 P.2d at 949-50.\\nFor the same reason, we do not believe that \\u00a7 12-1122(A) requires a different outcome. Arbitrary application of a statute is not required when it would result in unjust compensation to the property owner. Uvodich v. Board of Regents, 9 Ariz.App. 400, 406, 453 P.2d 229, 235 (1969) (discussing \\u00a7 12-1123's requirement that property be valued as of the date of summons).\\nDevelopments in California's eminent domain law since Schultz aptly illustrate the potential for unjust compensation if we were to apply the Defnet/Schultz rule by rote in this case. In 1975, the California legislature replaced the statute at issue in Schultz with more comprehensive eminent domain legislation. In particular, \\u00a7 1263.440 was added to the California Code of Civil Procedure to remedy the injustice occasioned by the Schultz holding. It provides:\\nThe amount of any damage to the remainder and any benefit to the remainder shall reflect any delay in the time when the damage or benefit caused by the construction and use of the project in the manner proposed by the plaintiff will actually be realized.\\nCal.Civ.Proc.Code \\u00a7 1263.440(a) (Deering 1981) (emphasis added). In its comment to the statute, the Law Revision Commission expressly repudiated the indiscriminate approach to compensation applied in Schultz:\\nIt has been held that damage and benefit must be based on the assumption that the improvement is completed. See, e.g., People v. Schultz____ Subdivision (a) alters this rule and requires that compensation for damage to the remainder (and the amount of benefit offset) be computed in a manner that will take into account any delay in the accrual of the damage and benefit under the project as proposed.\\nAlthough we must evaluate a Statute similar to California law prior to 1975, we do not believe that we must arbitrarily apply the rule in Defnet simply for consistency's sake. We are governed foremost by the Constitution, and the Constitution requires just compensation. To ensure just compensation, we believe that Title USA must be allowed to present evidence of the impact of construction delay on the property's market value.\\nWe caution, however, that we hold only that construction delay may be compensable. The ultimate determination is for the trier of fact in each case. The key consideration is whether and to what extent the delay affects market value. If, as is quite usual, the construction delay unavoidably associated with a project does not affect the property's value, that delay is irrelevant for purposes of severance damages and special benefits. \\\"Just compensation\\\" requires only that the State remedy real damages resulting from the taking, not imagined harms or dubious attempts to inflate condemnation awards. As noted in Nichols: \\\"Damages alleged to flow from the taking of part of a tract are not allowed if they can have no effect on present market value. Thus, damages that are too contingent, speculative and remote to affect the present market value need not be considered.\\\" 4A Nichols \\u00a7 14.09, at 14-241.\\nConclusion\\nWe therefore hold that, if construction delay is so significant that it reasonably can be expected to affect the property's market value as of the date of valuation, the trier of fact may consider that delay in determining severance damages, if any, and special benefits, if any. Accordingly, Title USA's request for special action relief is granted and DOT's request is denied.\\nGORDON, C.J., FELDMAN, V.C.J., and CAMERON and MOELLER, JJ\\\" concur.\\n. Section 12-1122 provides in part:\\nA. The court or jury shall ascertain and assess:\\n1. The value of the property sought to be condemned____\\n2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by the plaintiff.\\n3. How much the portion not sought to be condemned and each estate or interest therein will be benefited separately, if at all, by construction of the improvement proposed by the plaintiff.\\nB. As far as practicable, compensation shall be assessed for each source of damage separately.\\n. In Uvodich, the court noted that \\u00a7 12-1123's selection of the summons date as the measuring date for the property's market value need not be applied when it will result in unjust compensation. The potential for unjust compensation is particularly high in cases, like Uvodich, in which the property's decreased value is directly attributable to the taking itself, a phenomenon known as \\\"condemnation blight.\\\" See 7A Nichols \\u00a7 14.02. Condemnation blight situations, much like the situation we address in this case, often raise issues that require additional effort to ensure just compensation. In this vein, our legislature recently has amended A.R.S. \\u00a7 28-1865, concerning the purchase, sale, or condemnation of land for transportation purposes, to read:\\nIn acquiring property for transportation purposes pursuant to this section, when determining the market value of the property to be taken and the market value of the remainder, if any, in the before condition, a decrease or increase in the market value of the real property prior to the date of valuation caused by the public project for which the property is to be acquired or by the likelihood that the property would be acquired for the project shall be disregarded.\\nA.R.S. \\u00a7 28-1865(L).\"}"

arizona/1460838.json

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+"{\"id\": \"1460838\", \"name\": \"KABUTO INTERNATIONAL PHOENIX, INC. v. ARIZONA DEPARTMENT OF REVENUE; Maricopa County\", \"name_abbreviation\": \"Kabuto International Phoenix, Inc. v. Arizona Department of Revenue\", \"decision_date\": \"1994-05-03\", \"docket_number\": \"No. TX 92-00974\", \"first_page\": \"392\", \"last_page\": \"394\", \"citations\": \"178 Ariz. 392\", \"volume\": \"178\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Tax Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:25:53.220434+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"KABUTO INTERNATIONAL PHOENIX, INC. v. ARIZONA DEPARTMENT OF REVENUE; Maricopa County.\", \"head_matter\": \"873 P.2d 1314\\nKABUTO INTERNATIONAL PHOENIX, INC. v. ARIZONA DEPARTMENT OF REVENUE; Maricopa County.\\nNo. TX 92-00974.\\nTax Court of Arizona.\\nMay 3, 1994.\\nJohn A. Swain, Phoenix, for plaintiff.\\nMichael L. Kempner, Atty. Gen., Phoenix, Helm & Kyle by John D. Helm, Tempe, for defendant.\", \"word_count\": \"1047\", \"char_count\": \"6272\", \"text\": \"OPINION\\nSCHAFER, Judge.\\nThe issue in this case is whether a \\\"counterclaim\\\" by a county under A.R.S. \\u00a7 42-178 is an independent action that may stand on its own when the tax valuation appeal to which it was made is dismissed.\\nThe taxpayer, Kabuto International Phoenix, Inc., owner of the Wigwam Inn, filed this appeal challenging the assessments on its hotel and golf course properties. Maricopa County and the Arizona Department of Revenue answered the appeal, contending that the assessments were correct. Maricopa County also contended that the statute regulating the valuation of golf courses, A.R.S. \\u00a7 42-146, was unconstitutional. A few weeks later, at the prompting of the parties, the Court issued what amounted to an advisory minute entry informing the parties that it felt section 42-146 was unconstitutional. The County then asked the Court to continue this case on the inactive calendar. Kabuto opposed that and asked that the case be dismissed under Rule 41 of the Arizona Rules of Civil Procedure. The County then moved to amend the answer to the appeal to allow it to counterclaim for an increase in the assessor's valuation (A.R.S. \\u00a7 42-178).\\nThe Court continued the case on the inactive calendar and denied Kabuto's motion to dismiss under Rule 41. It did not, however, rule on the County's motion to amend the answer. Kabuto then filed a \\\"Motion For Dismissal With Prejudice.\\\" It noted that its earlier motion to dismiss did not request that the dismissal be with prejudice and, to clear up any misconception about that prior motion, it was now moving again for dismissal, with prejudice, and also moving to amend the earlier motion to clarify that it too requested a dismissal with prejudice. To make its point even clearer, a week later Kabuto filed a \\\"Notice Of Withdrawal Of Plaintiffs Motion For Dismissal With Prejudice\\\" asking the Court to rule on one of its requests for dismissal. The County (and the Department) opposes dismissal. Its most cogent argument is bound up with its motion to amend\\u2014if that motion is granted, then the County has successfully pleaded a self-sustaining claim for an increase (a counterclaim), and no motion to dismiss by the plaintiff should defeat that. The Court believes this case (and its companion case) must be dismissed, even if it were to grant the County's motion to amend. Here is why:\\nWhen a taxpayer files a valuation appeal to the Tax Court, A.R.S. \\u00a7 42-178(0 allows either the named county or the Department of Revenue to \\\"request,\\\" in its \\\"response\\\" to the appeal, an increase in the full cash value of the subject property. Section 42-178(0 does not denominate the request or response by the County an appeal, affirmative defense or counterclaim. Nor does the statute define \\\"request\\\" or \\\"response.\\\"\\nThe County claims that once a taxpayer files an appeal, section 42-178(0 provides the County with an independent cause of action sufficient to constitute a counterclaim for an increase in the property's valuation. By its arguments the County invites this Court to find that the terms \\\"response\\\" and \\\"request\\\" as used in section 42-178(C) are synonymous with \\\"counterclaim.\\\" The Court declines the invitation.\\nWhen interpreting a statute, this Court will examine the language to be interpreted. When that language expresses a clear unequivocal standard, the Court will interpret the statute accordingly, and look no further for guidance. Rio Rico Properties v. Santa Cruz County, 172 Ariz. 80, 834 P.2d 166 (Tax 1992). Unless the context of the statute requires otherwise, terms should be given their ordinary meaning. State Tax Commission v. Peck, 106 Ariz. 394, 476 P.2d 849 (1970); see also Jim Click Ford, Inc. v. City of Tucson, 133 Ariz. 97, 649 P.2d 714 (App.1982).\\nThe term \\\"response\\\" means nothing more than \\\"[a]n answer, a reply.\\\" The Compact Edition of the Oxford English Dictionary 2514 (1971). \\\"Request\\\" means \\\"to express a wish or desire to have.\\\" Id. at 2503. Thus, by the plain language of the statute, the County is simply allowed to answer or reply to the taxpayer's appeal and to express its desire to have the full cash value increased.\\nOn the other hand,\\n\\\"[a] counterclaim is a purely statutory remedy and was not known to the common law. The term is a general and comprehensive one and may be defined as a cause of action in favor of defendant upon which he might have sued the plaintiff and recovered judgment in a separate action.\\\"\\nValley Gin Co. v. McCarthy, 56 Ariz. 181, 187, 106 P.2d 504, 507 (1940). It is an independent claim. Id. Clearly, section 42-178(C) cannot be read to grant the County an independent claim for an increase in value. Until the legislature provides the County with a statutory right to appeal a value to this Court or provides a specific statutory basis for a counterclaim, the County has no independent counterclaim. The County cannot transform its request for a higher value into a counterclaim simply by calling it a \\\"counterclaim.\\\"\\nIn view of this ruling, the Court denies the County's request for an expedited pretrial conference. The Court will not issue its minute entry of November 12, 1993 as an opinion. And the Court declines to impose conditions [see Rule 41(a)(2)] upon the dismissal of Kabuto's appeal.\\nCONCLUSION\\nThe County's motion to amend its answer to include a \\\"counterclaim\\\" is denied. Even if this Court were to grant the County's motion, it would still grant Kabuto's motion to dismiss the action with prejudice and dismiss this entire action (complaint and \\\"counterclaim\\\") because, once the complaint is dismissed, the \\\"counterclaim\\\" cannot stand on its own.\\nTT IS ORDERED denying the County's motion to amend its answer to the complaint.\\nIT IS ORDERED granting Kabuto's motion to dismiss with prejudice.\\nIT IS ORDERED dismissing this action (complaint and \\\"counterclaim\\\") with prejudice.\\nThis opinion is not a final, appealable judgment; other orders will follow. See Devenir Associates v. City of Phoenix, 169 Ariz. 500, 821 P.2d 161 (1991).\"}"

arizona/1460873.json

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+"{\"id\": \"1460873\", \"name\": \"Travis WARD, a single man; Kevin M. Doyle, a single man; and Richard Rowe and Linda Rowe, husband and wife, Appellants, v. STATE of Arizona, Appellee\", \"name_abbreviation\": \"Ward v. State\", \"decision_date\": \"1993-08-19\", \"docket_number\": \"No. 1 CA-CV 91-0494\", \"first_page\": \"164\", \"last_page\": \"170\", \"citations\": \"178 Ariz. 164\", \"volume\": \"178\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:25:53.220434+00:00\", \"provenance\": \"CAP\", \"judges\": \"CONTRERAS, P.J., and GARBARINO, J., concur.\", \"parties\": \"Travis WARD, a single man; Kevin M. Doyle, a single man; and Richard Rowe and Linda Rowe, husband and wife, Appellants, v. STATE of Arizona, Appellee.\", \"head_matter\": \"871 P.2d 711\\nTravis WARD, a single man; Kevin M. Doyle, a single man; and Richard Rowe and Linda Rowe, husband and wife, Appellants, v. STATE of Arizona, Appellee.\\nNo. 1 CA-CV 91-0494.\\nCourt of Appeals of Arizona, Division 1, Department A.\\nAug. 19, 1993.\\nReview Granted May 3, 1994.\\nLangerman, Begam, Lewis & Marks, P.A. by Robert G. Begam, Cora Perez, Phoenix, for appellants Doyle and Ward.\\nFeder Law Offices by Harold Feder, Phoenix, for appellants Rowe.\\nHarry P. Friedlander, Scottsdale, for appellant Metz.\\nBeer, Toone & Ryan, P.C. by Thomas L. Toone, Michael C. Sheedy, Phoenix, for appellee State of Arizona.\", \"word_count\": \"3112\", \"char_count\": \"18980\", \"text\": \"OPINION\\nVOSS, Judge.\\nINTRODUCTION\\nThe appellants were injured in a boating accident on Apache Lake in the Tonto National Forest. They sued the state alleging it was negligent in failing to mark a peninsula of land with which they collided. The superior court granted the state summary judgment, ruling it immune under the recreational use statute, Ariz.Rev.Stat.Ann. (\\\"A.R.S.\\\") \\u00a7 38-1551. We affirm this ruling and hold that the recreational use statute as it applies to the State of Arizona does not violate the \\\"abrogation clause\\\" of art. 18, \\u00a7 6 of the Arizona Constitution.\\nFACTS AND PROCEDURAL HISTORY\\nApache Lake lies in the Tonto National Forest, an area administered by the Department of Agriculture, United States Forest Service. In 1973 the Tonto National Forest Service and the Arizona Game and Fish Commission (\\\"Commission\\\") entered into a Memorandum of Understanding under which the Commission agreed to undertake an \\\"aids to navigation\\\" program on the lake. Under the terms of the memorandum, the state was required to implement aids to navigation such as buoys or other fixed objects.\\nAfter dark on the evening of May 29,1988, the appellants were passengers in a power boat on Apache Lake. The pilot of the boat set course for Apache Lake Marina, which they could see because of its bright lights. Between the boat and the marina lay \\\"Jack's Point,\\\" a rocky peninsula. The marina's lights reached the boat through a \\\"saddle\\\" in Jack's Point and the boaters could not see the peninsula. The boat crashed into the peninsula, seriously injuring the appellants.\\nThe appellants sued the state and Apache Lake Marina, alleging negligence. The state filed a motion for summary judgment asserting, as an absolute defense, the recreational use statute. The superior court granted the motion and entered a final judgment. The appellants timely appealed.\\nDISCUSSION\\nOn appeal, the appellants raise the following issues:\\n(1) whether the recreational use statute applies;\\n(2) whether the state is an \\\"occupant\\\" for purposes of the recreational use statute; and\\n(3) whether the recreational use statute violates the Arizona Constitution by abrogating a common law cause of action.\\n1. APPLICATION OF THE RECREATIONAL USE STATUTE\\nIn 1983 the legislature enacted the recreational use statute:\\n\\u00a7 33-1551. Duty of owner, lessee or occupant of premises to recreational users; liability; definitions\\nA. An owner, lessee or occupant of premises does not:\\n1. Owe any duty to a recreational user to keep the premises safe for such use.\\n2. Extend any assurance to a recreational user through the act of giving permission to enter the premises that the premises are safe for such entry or use.\\n3. Incur liability for any injury to persons or property caused by any act of a recreational user.\\nB. As used in this section:\\n1. \\\"Premises\\\" means agricultural, range, mining or forest lands, and any other similar lands which by agreement are made available to a recreational user, and any building or structure on such lands.\\n2. \\\"Recreational user\\\" means a person to whom permission has been granted or implied without the payment of an admission fee or other consideration to enter upon premises to hunt, fish, trap, camp, hike, ride, swim or engage in similar recreational pursuits. The purchase of a state hunting, trapping or fishing license is not the payment of an admission fee or other consideration as provided in this section.\\nC. This section does not limit the liability which otherwise exists for maintaining an attractive nuisance, or for wilful or mali cious failure to guard or warn against a dangerous condition, use or activity.\\nA.R.S. \\u00a7 33-1551.\\nA. Apache Lake as a \\\"Premises\\\"\\nThe appellants make several arguments why the recreational use statute does not apply to Apache Lake in Tonto National Forest. They first contend that the statute simply does not apply to public lands. They contend that the legislative purpose behind the statute was primarily to encourage private landowners to permit recreational user access to property which would otherwise not be available to them. They note that the legislature was concerned with promoting the use of \\\"vast areas of land not now being used for recreational purposes.\\\" Walker v. City of Scottsdale, 163 Ariz. 206, 208, 786 P.2d 1057, 1059 (App.1989).\\nThe appellants also contend that the statute came from the model act, whose purpose is \\\"to encourage availability of private lands by limiting the liability of owners to situations in which they are compensated for the use of their property and to those in which injury results from malicious or willful acts of the owner.\\\" Public Recreation on Private Lands: Limitations on Liability, Suggested State Legislation, Vol. XXIV, p. 150 (1965).\\nWhile the purpose behind both Arizona's recreational use statute and the model act may be to encourage recreational use on private lands, that alone does not answer the question. We must look at the language of the statute. Arizona State Bd. of Accountancy v. Keebler, 115 Ariz. 239, 240, 564 P.2d 928, 929 (App.1977). Nothing in the recreational use statute limits it to private lands. In fact, there is an indication that it applies to public as well as private lands. The act states that \\\"[t]he purchase of a state hunting, trapping or fishing license is not the payment of an admission fee or other consideration as provided in this section.\\\" A.R.S. \\u00a7 33-1551(B)(2). If the statute were intended to apply only to private lands, this language would be superfluous and we must avoid statutory constructions that make parts of a statute superfluous. Weitekamp v. Fireman's Fund Ins. Co., 147 Ariz. 274, 275, 709 P.2d 908, 909 (App.1985). Finally, applying the statute to public lands does not detract from the stated purpose of opening up private lands; rather, the- statement seems simply to paint with a broader brush.\\nMoreover, the argument that since Tonto National Forest was already open to the public, the recreational use statute does not apply to it is rejected. A hypothetical involving two neighboring farmers illustrates how this would lead to absurd results. Farmer A always allowed the public to use her land for hunting. Farmer B, fearing liability, prevented such use on his land. The passage of the recreational use statute allayed Farmer B's worries and he now allows hunting on his property. But under the appellants' logic, Farmer A is not protected by the statute because her land was already open to public use. We cannot adopt statutory interpretations that are absurd. City of Phoenix v. Superior Court, 144 Ariz. 172, 177, 696 P.2d 724, 729 (App.1985).\\nThe appellants cite cases from other jurisdictions that have held their recreational use statutes inapplicable to government defendants. In Hovet v. City of Bagley, 325 N.W.2d 813, 815-16 (Minn.1982), the court relied on the title of the act and its codified statement of purpose to reach its conclusion that the recreational use statute was intended to apply to private lands rather than the city. The act encompassing the recreational use statute was entitled, \\\"An act relating to public recreational use of privately owned land____\\\" Id. at 815. The statute's purpose was to \\\"Promote the use of privately owned lands____\\\" Id.\\nThe court in Borgen v. Fort Pitt Museum Associates, Inc., 83 Pa.Cmwlth. 207, 477 A.2d 36, 39 (1984), held that commonwealth lands are always acquired, and usually held, for public use and the legislature did not intend that the recreational use statute encourage public use of lands already put to that use.\\nWe find these cases unpersuasive. Application of the statute to public lands does not contravene the statute's purpose to open private lands. Rather, it promotes a more uniform application. In addition, as we will discuss in this opinion, we do not believe that, just because the state is protected by one immunity, the legislature intended it not to be protected by another. Finally, none of the cases addresses the aspect of the Arizona statute that provides that the \\\"purchase of a state hunting, trapping or fishing license is not the payment of an admission fee or other consideration as provided in this section.\\\" A.R.S. \\u00a7 33\\u20141551(B)(2).\\nThe appellants further argue that the recreational use statute cannot apply to Apache Lake, or any other body of water, because a lake is not included in the definition of \\\"premises\\\" as provided in A.R.S. \\u00a7 33-1551:\\nagricultural, range, mining or forest lands, and any other similar lands which by agreement are made available to a recreational user, and any building or structure on such lands.\\nWe agree with the trial court which rejected this argument, noting that \\\"the definition of recreational user includes uses such as fishing, swimming or similar recreational pursuits which clearly contemplate that bodies of water, such as a lake within the premises, are included as premises.\\\"\\nWe hold that AR.S. \\u00a7 33-1551 was meant to apply to public, as well as private lands. Furthermore, it applies to bodies of water located on the \\\"premises\\\" in question.\\nB. Other Immunities\\nThe appellants next argue that other immunities granted the state show a legislative intent to preclude it from being protected by the recreational use statute. They argue that by adopting A.R.S. \\u00a7 12-820 et seq., \\\"the legislature granted immunity to the State for certain acts of negligence; accordingly, there was no reason to include the State within the immunity granted by A.R.S. \\u00a7 33-1551.\\\" Surely the appellants cannot mean that the state does not need the absolute immunity provided by the recreational use statute because it could assert absolute immunity under AR.S. \\u00a7 12-820.01. The mere fact that the state is entitled to immunity in some situations (e.g., under A.R.S. \\u00a7 12-820.01) does not preclude the legislature from including it in immunity granted in other situations (e.g., under the recreational use statute). The legislature clearly addressed different situations in the two statutes. Under A.R.S. \\u00a7 12-820.01, the legislature protected the state from liability for \\\"acts and omissions of its employees constituting: 1) the exercise of a judicial or legislative function; or 2) the exercise of an administrative function involving the determination of fundamental governmental policy.\\\" Under the recreational use statute, the legislature has protected the state from liability to recreational users on its premises.\\n2. IS THE STATE AN OCCUPANT?\\nThe appellants next argue that, if the recreational use statute applies to public lands and lakes, the state does not fall under the recreational use statute's protection because the state is not \\\"[a]n owner, lessee or occupant of premises____\\\" The state concedes it neither owned nor leased Apache Lake or Tonto National Forest. It argues that its \\\"aids to navigation\\\" program makes it an \\\"occupant\\\" and cites Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193 (7th Cir.1987) in support of that argument. We find that ease persuasive and adopt its reasoning here.\\nThe plaintiff in Sno Eagles was hurt when the snowmobile she was riding collided with an automobile on National Forest Service land at a point where a snowmobile trail crossed a private driveway. Id. at 1193-94. Two volunteer non-profit snowmobile clubs actively maintained the trail. Id. at 1194. The Sno Eagles Snowmobile Club, Inc., planned and constructed it and Headwaters Trails, Inc., groomed it. Id. Sno Eagles had partially marked it with signs. Id. The accident site was unmarked because Sno Eagles had run out of signs. Id.\\nSimilar to the Arizona recreational use statute, the Wisconsin recreational use statute, Wis.Stat. \\u00a7 29.68, applies to \\\"[a]n owner, lessee or occupant____\\\" Id. The court stated the term \\\"occupant\\\" connotes some \\\"degree of permanence in the occupancy, not merely one who is using the property----\\\" Id. at 1197 (quoting Labree v. Millville Mfg., Inc., 195 N.J.Super. 575, 481 A.2d 286, 291 (N. J.App.1984)). It held that the snowmobile clubs' ongoing trail maintenance programs gave the requisite degree of permanence. Id. at 1197. The court noted that generally accepted definitions of occupant applied to the case:\\n[T]he trial judge examined two accepted and well recognized sources in finding that \\\"occupy and occupant include persons who, while not owners or tenants, have the actual use of land.\\\" The court further stated that:\\nWhile \\\"occupant\\\" includes definitions of owner and lessee, it also means one who has the actual use of property without legal title, dominion or tenancy. In order to give meaning to \\\"occupant\\\" the term should be interpreted to encompass a resident of land who is more transient\\nthan either a lessee or an owner----\\nSno Eagles and Headwaters occupy the land to the extent of constructing and grooming snowmobile trails.\\nWe agree____ If we were to circumscribe and interpret \\\"occupant\\\" as one in actual possession or exclusive control the term would be indistinguishable from owner.\\nId. at 1197-98.\\nThe reasoning of Sno Eagles is appropriate here. Like the defendants in that case, the State of Arizona occupies Apache Lake, under its aids to navigation program, with \\\"a degree of permanence.\\\" The aids to navigation program is very similar to the defendants' programs in Sno Eagles. We hold that the state is an \\\"occupant\\\" of Apache Lake for recreational use statute purposes.\\n3. CONSTITUTIONALITY OF THE RECREATIONAL USE STATUTE\\nFinally, the appellants argue that the recreational use statute violates the \\\"abrogation clause\\\" of the Arizona Constitution:\\nThe right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.\\nAriz. Const., art. 18, \\u00a7 6. Under this provision the legislature may regulate a right of action but may not destroy it. Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 18, 730 P.2d 186, 195 (1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 527 (1987). To differentiate between valid regulation and invalid abrogation, the courts \\\"determine] whether a purported legislative regulation leaves those claiming injury a reasonable possibility of obtaining legal redress.\\\" Id. \\\"[The legislature] may not, under the guise of 'regulation,' so affect the fundamental right to sue for damages as to effectively deprive the claimant of the ability to bring the action.\\\" Id. (quoting Barrio v. San Manuel Div. Hospital, Magma Copper Co., 143 Ariz. 101, 106, 692 P.2d 280, 285 (1984)).\\nThe abrogation clause of art. 18, \\u00a7 6 protects all actions recognized at common law when the state constitution was adopted in 1912. Bryant v. Continental Conveyor Equip. Co., 156 Ariz. 193, 195, 751 P.2d 509, 511 (1988). However, the protection does not extend to causes of action not recognized at common law. Id.\\nAppellants argue that the recreational use statute abrogates a cause of action for negligence against a landowner, except where the landowner received some considerations from the invitee. They contend that they were invitees and at common law, the landowner was under an affirmative duty to \\\"use reasonable care to make the premises safe for use by invitees.\\\" We disagree.\\nThe recreational use statute does not abrogate a cause of action against the state because it could not have been liable under the common law in 1912. \\\"It is well settled by the great weight of authority that the state, in consequence of its sovereignty, is immune from prosecution in the courts and from liability to respond in damages for negligence, except in cases where it has expressly waived immunity or assumed liability by Constitutional or legislative enactment.\\\" State v. Sharp, 21 Ariz. 424, 426, 189 P. 631 (1920). Appellants, however, contend that sovereign immunity was not recognized in Arizona until 1920 when the Supreme Court decided Sharp. They further contend that paragraph 1971 of the Civil Code of 1913 established a law that the state could be sued for negligence:\\nAll persons who have, or who shall hereafter have claims on contract or for negligence against the state, which have been disallowed, are hereby authorized, on the terms and conditions herein contained, to bring suit thereon against the state in any of the courts of this state of competent jurisdiction, and prosecute the same to final judgment. The rules and practice in civil cases shall apply to such suits except as herein otherwise provided.\\nCivil Code of 1913, \\u00b6 1971. This identical question was addressed in Sharp. Id. at 426-28, 189 P at 631. There the court held that based on cases construing paragraph 1971, it did not enlarge the liability of the state. Id. at 428, 189 P. at 632. The court stated:\\n[N]o cause of action was created that did not theretofore exist; that the effect of the act was merely to give a remedy to enforce a liability, the state submitting itself to the jurisdiction of the court subject to its right to impose any lawful defense. Immunity from action is one thing; immunity from liability is another; hence the state does not waive its immunity from liability for the negligence of its agents, servants or employees by a statute conferring jurisdiction only upon the court.\\nId.\\nAppellants further argue that Sharp recognized that sovereign immunity is not \\\"immunity from an action,\\\" rather it is \\\"immunity from liability\\\" and therefore, under Sharp, a plaintiff can still sue the state and at that time the state may raise sovereign immunity as a defense. In essence, the recreational use statute abrogates a plaintiffs right to bring the action in the first place against the state. We find the argument to be without merit. The state could claim immunity at common law and it has a right to do so now. The cause of action of negligence against the state has not been abrogated.\\nAppellants finally argue that assuming the recreational use statute is constitutional as to the state, it is unconstitutional as to a private landowner, and therefore the statute is facially invalid. The issue of whether a private landowner can be sued under the recreational use statute is not before us today and we will not address it. Today, we hold the recreational use statute, A.R.S. \\u00a7 33-1551, does not violate art. 18, \\u00a7 6 of the Arizona Constitution as it applies to the state.\\nFor the foregoing reasons the judgment is affirmed.\\nCONTRERAS, P.J., and GARBARINO, J., concur.\"}"

arizona/1467859.json

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+"{\"id\": \"1467859\", \"name\": \"MVC CONSTRUCTION, INC., an Arizona corporation, Plaintiff-Appellant, v. Kevin D. TREADWAY; Registrar of Contractors, Defendants-Appellees\", \"name_abbreviation\": \"MVC Construction, Inc. v. Treadway\", \"decision_date\": \"1995-06-27\", \"docket_number\": \"No. 1 CA-CV 92-0489\", \"first_page\": \"615\", \"last_page\": \"621\", \"citations\": \"182 Ariz. 615\", \"volume\": \"182\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T20:03:54.585708+00:00\", \"provenance\": \"CAP\", \"judges\": \"GRANT, P.J., and LEVI RAY HAIRE, Judge , concur.\", \"parties\": \"MVC CONSTRUCTION, INC., an Arizona corporation, Plaintiff-Appellant, v. Kevin D. TREADWAY; Registrar of Contractors, Defendants-Appellees.\", \"head_matter\": \"898 P.2d 993\\nMVC CONSTRUCTION, INC., an Arizona corporation, Plaintiff-Appellant, v. Kevin D. TREADWAY; Registrar of Contractors, Defendants-Appellees.\\nNo. 1 CA-CV 92-0489.\\nCourt of Appeals of Arizona, Division 1, Department B.\\nJune 27, 1995.\\nMorrison & Hecker by Steven H. Williams and Norling, Perry, Pierson & Kolsrud, P.L.C. by Darrell E. Davis, Phoenix, for appellant.\\nGrant Woods, Atty. Gen. by Montgomery Lee, Asst. Atty. Gen., Phoenix, for appellee Registrar of Contractors.\\nKevin D. Treadway, Flagstaff, in pro. per.\\n. Retired Judge Levi Ray Haire was authorized to participate in this appeal by order of the Chief Justice of the Arizona Supreme Court pursuant to Arizona Const, art. VI, section 20 and A.R.S. section 38-813 (1985).\", \"word_count\": \"3278\", \"char_count\": \"19799\", \"text\": \"OPINION\\nBARRY C. SCHNEIDER, Judge\\nThis appeal is from a judgment denying an award of attorneys' fees to the prevailing party in a superior court review of an administrative decision and order. The primary issue is whether the Registrar of Contractors (\\\"Registrar\\\") lost its nominal party status and thus was subject to an award of attorneys' fees against it when it filed an answer containing denials and affirmative defenses and allegations, but did not otherwise participate in the action.\\nWe hold that the Registrar did not lose its nominal party status by filing such an answer to the complaint. We also hold that the trial court did not err in declining to award fees against the homeowner, but that it did err in failing to award appellant its costs.\\nFACTS AND PROCEDURAL HISTORY\\nThe driveway slab at appellee Kevin D. Treadway's (\\\"Treadway\\\") new residence in Flagstaff \\\"heaved\\\" during winter months. Treadway filed a complaint with the Registrar against appellant MVC Construction, Inc. (\\\"MVC\\\"), the concrete subcontractor that installed the driveway slab. After a hearing, the Registrar ruled in Treadway's favor and ordered MVC to remove and replace the driveway slab. MVC filed a motion for rehearing, which the Registrar d\\u00e9nied..\\nMVC appealed to the superior court. Treadway did not file an answer to MVC's complaint. The Registrar filed an answer in which it: (1) admitted some of the allegations of the complaint; (2) denied that its decision was contrary to law and that MVC was harmed by the decision; (3) alleged that the decision of the Registrar was adequately supported by the record and thus that MVC was not entitled to a trial de novo; and (4) alleged that the Registrar's decision and order were not arbitrary, capricious, irrational, illegal, unsupported by law or evidence, or an abuse of discretion. The answer requested an order dismissing MVC's complaint with prejudice and affirming the decision and order of the Registrar.\\nMVC filed an opening brief, and Treadway filed a response. The Registrar neither filed a brief nor participated in oral argument. The superior court ruled in favor of MVC and reversed the Registrar's decision.\\nMVC applied for an award of attorneys' fees from the Registrar pursuant to Ariz. Rev.Stat.Ann. (\\\"A.R.S.\\\") section 12-348. It argued that because the Registrar filed an answer in which it took a position regarding the action, the Registrar was not a nominal party and thus was not exempted from paying MVC's attorneys' fees. MVC asked the court to award fees against Treadway for pursuit of a claim lacking merit if the court declined to award fees against the Registrar. The Registrar responded that it was not subject to paying fees if it simply answered the complaint and certified the record.\\nThe trial court declined to award MVC attorneys' fees against either the Registrar or Treadway. No reason was stated concerning the denial against Treadway, the trial court found that the Registrar was a nominal party in the case and that it lacked any pecuniary or proprietary stake in the outcome of the action. The court noted that the Registrar's answer containing a general denial and certification of the record placed the superior court in the posture where it could conduct the review called for in A.R.S. section 12-910. At that point, stated the court, the Registrar could adopt a passive or nominal role, or it could begin active prosecution of the appeal.\\nThe court entered final judgment in favor of MVC and awarded no costs or fees. MVC timely appealed from the portion of the judgment that declined to award costs or attorneys' fees to MVC.\\nDISCUSSION\\nA. Request for Fees Against the Registrar\\nThe Arizona legislature has provided for awards of fees against the state in AR.S. section 12-348, which reads at subsection (A)(2) as follows:\\nA. In addition to any costs which are awarded as prescribed by statute, a court shall award fees and other expenses to any party other than this state or a city, town or county which prevails by an adjudication on the merits in any of the following:\\n2. A court proceeding to review a state agency decision, pursuant to chapter 7, article 6 of this title, or any other statute authorizing judicial review of agency decisions.\\nThe legislature's use of the words \\\"shall award fees\\\" in section 12-348(A) as well as the legislative history as described in Mountain States Tel. & Tel. Co. v. Corporation Commission, 160 Ariz. 350, 361, 773 P.2d 455, 466 (1989), indicate that the legislature intended to make such an award mandatory. Estate of Walton, 164 Ariz. 498, 501, 794 P.2d 131, 134 (1990). A party is entitled to an award of attorney fees if it prevails by an adjudication on the merits in a court proceeding to review a state agency decision unless another provision of the statute applies to prevent such an award. See Mountain States, 160 Ariz. at 361; 773 P.2d at 466. That other provision, argues the Registrar, is subsection (H)(4) of 12-348 which provides that the statute does not apply to \\\"proceedings in which the state or a city, town or county is a nominal party.\\\" The court below found that the Registrar was a nominal party and thus that MVC was not entitled to an attorneys' fees award.\\nMVC argues that the Registrar was not a nominal party because in its answer it denied that its decision was contrary to law or harmed MVC. MVC further argues that the Registrar lost any nominal party status when it took the position that its decision was adequately supported by the record and that MVC thus was not entitled to a trial de novo. Such action, argues MVC, constitutes more than passive conduct typically associated with a nominal party.. The affirmative allegations of the answer to the effect that its decision was not arbitrary are not positions required by law to be taken by the Registrar and, thus, argues MVC, put the Registrar in a non-nominal party category.\\nIn an action to review a final decision of an administrative agency, the agency must be made a defendant. A.R.S. \\u00a7 12-908. Thus, MVC had to name the Registrar as a defendant in MVC's action for review of the Registrar's decision and order. MVC acknowledges that, pursuant to A.R.S. section 12-909(B), the Registrar must \\\"file an answer which shall contain the original or a certified copy of the portion of the record designated in the complaint.\\\" MVC argues, however, that to preserve its nominal party status, the Registrar had to file a \\\"no position\\\" answer. According to MVC, once the Registrar took a position in the answer, it lost its status as a nominal party.\\nThe two leading Arizona cases which have examined when a state administrative agency is a nominal party in litigation for purposes of A.R.S. section 12-348(H)(4) \\u00e1re Cortaro Water Users' Ass'n v. Steiner, 148 Ariz. 314, 714 P.2d 807 (1986) and Mission Hardwood Co. v. Registrar of Contractors, 149 Ariz. 12, 716 P.2d 73 (App.1986). Neither of these cases is controlling in the present case.\\nIn Cortaro, the court held that A.R.S. section 12-348(A)(3) authorized an award of attorneys' fees against the Arizona Department of Water Resources, which was a party on appeal pursuant to A.R.S. section 12-908, where the department actively participated at each level of the proceedings. The Cortero court noted that \\\"[t]he nominal party exclusion can logically attach to review at the superior court level as long as the agency simply certifies the record and answers the complaint.\\\" 148 Ariz. at 318, 714 P.2d at 811. The court explained that while in most cases an agency need not take an advocate's position in the review, the agency was entitled to advocate a position rather than simply certifying the record. Id. If it did so, the court pointed out, the agency would be responsible for the prevailing party's attorneys' fees if the agency's position was unsuccessful. Id. Because the Department of Water Resources took an active part in the superior court proceedings, appealed to the court of appeals, and petitioned the supreme court for review, the Cortaro court held that it had lost its nominal party status. Id.\\nIn Mission Hardwood Co., the Court of Appeals held that the Registrar adopted the role of an advocate in the appeal to the superior court and thus ceased to be a nominal party and lost its statutory protection against paying Mission Hardwood's attorneys' fees. In the superior court proceedings in Mission Hardwood,\\nthe Registrar answered Mission's complaint not by merely filing the record, but by responding to each allegation in Mission's complaint and requesting, among other things, that the superior court deny Mission's request for a trial de novo; it filed a seven-page response requesting denial of Mission's motion to supplement the record with additional evidence, and it appeared at the oral argument, concerning Mission's motion to supplement; it requested written memoranda and oral argument; it filed a twelve-page response defending its decision regarding the suspension of Mission's license, and it appeared at that oral argument; and it filed a five-page objection to the form of judgment and application for attorneys' fees.\\n149 Ariz. at 16-17, 716 P.2d at 77-78. In view of this active role, the Mission Hardwood court held that the superior court properly awarded attorneys' fees against the Registrar. Id. at 17, 716 P.2d at 78.\\nCortaro and Mission Hardwood leave unanswered the question of whether an agency that only asserts affirmative defenses and allegations in its answer adopts the role of an advocate and thus forfeits its nominal party status. As MVC points out, the Mission Hardwood court listed as an example of the Registrar's active role the fact that the Registrar answered Mission's complaint by responding to each allegation of the complaint and requesting that the trial court deny Mission's request for a trial de novo. However, the court also listed six other instances of the Registrar's involvement in the proceedings; thus, we cannot infer that the filing of the answer alone was a sufficient basis for the Mission Hardwood court's finding that the Registrar adopted the role of an advocate.\\nIn the ease before us, MVC demanded a trial de novo on the grounds that the proceedings before the Registrar were recorded on tapes of such poor quality that complete and accurate transcription of the tapes was not possible and that it was impossible to obtain a full and complete record of the agency proceedings. The Registrar answered that MVC was not entitled to a trial de novo because the decision was adequately supported by the record and the transcript of the proceedings, which were mechanically recorded. We believe that this assertion of the answer comports with the Registrar's duty to file an answer containing the portion of the record designated in the complaint. In other words, as part of the Registrar's duty to convey the record to the superior court, it is proper for it to describe the adequacy of the record. Such an . assertion does not constitute adopting the role of an advocate.\\nAt argument, MVC pointed out that the Court of Appeals, in International Brotherhood of Electrical Workers, Local Union 640 v. Kayetan, 119 Ariz. 508, 510, 581 P.2d 1158, 1160 (App.1978), noted that the role of the agency-defendant in superior court proceedings may be a passive one because \\\"the Administrative Review Act contemplates that the role of the administrative agency as a party defendant in the superior court proceedings may be simply that of certifying its record to the superior court in order for the court to conduct the review contemplated by AR.S. \\u00a7 12-910.\\\" MVC apparently would have us conclude from this dictum that the Registrar was not obligated to file an answer. We disagree. A.R.S. section 12-909(B), as previously noted, obligates the agency to file an answer. The Kayetan court was not determining whether the Registrar of Contractors was a nominal party but instead considered whether the contractor was an indispensable party. Kayetan leaves open the opportunity for an agency to merely certify the record without taking a position in the answer. However, nothing in the statement indicates that filing a typical answer would cause the agency to lose its nominal party status.\\nIf the legislature had intended that the Registrar merely certify the record to the superior court, it would not have said that the \\\"administrative agency shall file an answer____\\\" If the legislature had intended that the agency file an answer only in superi- or court reviews in which the agency expected to take an active advocate's role, the legislature could have provided for the filing of an answer only in those instances. However, the legislature provided that in all such administrative ruling appeals, the agency shall file an answer.\\nThe nature of an answer is to admit or deny the allegations of the complaint and assert defenses. See Ariz.R.Civ.P. 8(b). We do not presume that the legislature had anything else in mind when it drafted A.R.S. section 12-909(B) to require state agencies to file ansjvers in actions to review agency decisions. Thus, nothing in A.R.S. section 12-909(B) indicates that an agency becomes an advocate in an action to review an administrative decision when it files a typical answer in accordance with this statute. It would indeed be anomalous for the legislature to require state agencies to file a pleading that in its typical form would automatically subject the agencies to awards of attorneys' fees against them.\\nIn the case below, the Registrar did not participate in the proceedings other than by filing an answer and certifying the record. It did not file a brief regarding its administrative decision nor did it participate in the oral argument regarding the decision. It did nothing to cause it to lose its nominal party status pursuant to Cortaro and Mission Hardwood. Therefore, the trial court correctly denied MVC an award of fees against the Registrar.\\nB. Request for Fees Against Treadway\\nMVC argues that if it cannot recover fees against the Registrar, it should be able to recover fees against Treadway pursuant to AR.S. section 12-848 or 12-841.01. We do not agree. First, A.R.S. section 12-348 provides for an award only against the state or other governmental entity. Although the language of the statute itself may not be clear on this point, a portion of the title of the statute reads \\\"Award of fees and other expenses against the state or a city, town or county.\\\" More significantly, the legislative findings and purpose of section 12-348 provide:\\nA. The legislature finds that certain individuals, partnerships, corporations and labor or other organizations may be deterred from seeking review of or defending against unreasonable governmental action because of the expense involved in securing the vindication of their rights. The economic deterrents to contesting governmental action are magnified in these cases by the disparity between the resources and expertise of these individuals and their government.\\nB. The purpose of this section is to reduce the deterrents and the disparity by entitling prevailing parties to recover an award of reasonable attorney fees, expert witness fees and other costs against the state.\\nLaws 1981, ch. 208, \\u00a7 1 (emphasis added). Thus, the legislature has specified that awards of fees under section 12-348 are to be against the state or other government entities, not against individuals involved in the proceedings. Accordingly, MVC may not recover fees against Treadway under section 12-348.\\nMVC argues that A.R.S. section 12-341.01(A) provides another basis for an award of fees against Treadway. In considering this argument, we first note that MVC barely raised this argument below. It did not seek fees against Treadway under section 12-341.01(A) in its application for fees. Its only request was in oral argument on the application when MVC's attorney merely stated, \\\"And also under A.R.S. section 12-341.01, this would be something having its genesis in contract, which is a contested action____\\\" We question whether this comment is adequate to raise A.R.S. section 12-341.01 as a ground for an award of fees without prejudicing Treadway.\\nSection 12-341.01(A) provides that \\\"[i]n any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney's fees.\\\" We note that section 12-341.01 does not provide for a monetary award of attorney's fees but rather merely gives the trial court the discretion to make such an award.\\nIf we assume that Appellant sufficiently raised this issue in superior court, and further assume, for purposes of this appeal, that this was an action arising out of contract, we find no abuse in the trial court exercising its discretion in refusing to award attorneys' fees against Treadway.\\nC. Request for Award of Costs\\nMVC argues that the trial court erred in declining to award it costs in the amount of $205.60. We agree. The awarding of costs to the successful party in a civil action is mandatory under A.R.S. section 12-341. Trollope v. Koerner, 21 Ariz.App. 43, 47, 515 P.2d 340, 344 (1973). Taxable costs in the amount of $205.60 were established by affidavit. Where there is more than one losing parly in an action, each party is liable jointly and severally for the total costs. Welch v. McClure, 123 Ariz. 161, 165, 598 P.2d 980, 984 (1979). Therefore, we remand to the trial court for entry of an award of costs in the amount of $205.60, in favor of MVC and against the Registrar and Tread-way jointly and severally. In all other respects, we affirm the trial court.\\nD. Request for Fees and Costs on Appeal\\nMVC requests an award of attorneys' fees on appeal. Because it has not substantially prevailed on appeal we deny this request. Because the Registrar and Treadway have substantially prevailed on appeal, we award them their costs.\\nGRANT, P.J., and LEVI RAY HAIRE, Judge , concur.\\nThe Honorable Barry C. Schneider, Judge of a court of record, was authorized to participate in this matter by the Chief Justice of the Arizona Supreme Court, pursuant to Arizona Const, art. VI, section 31.\\n. A state agency party that does not act as an advocate on the merits of the litigation may nevertheless be subject to paying the prevailing party's fees pursuant to A.R.S. section 12-348 if the agency has any pecuniary or proprietary stake in the outcome of the action. See Kadish v. Arizona State Land Dept., 177 Ariz. 322, 868 P.2d 335 (App.1993); Bromley Group, Ltd. v. Arizona Dep't. of Revenue, 170 Ariz. 532, 826 P.2d 1158 (App.1991). However, there is no assertion here that the Registrar had any pecuniary or proprietary stake in the outcome of MVC's appeal to the superior court.\\n. The Arizona Supreme Court in New Pueblo Constructors, Inc. v. State, 144 Ariz. 95, 112, 696 P.2d 185, 202 (1985), noted about the legislature's statement of intent concerning A.R.S. section 12-348 that \\\"[t]his legislative declaration warrants special consideration because express legislative findings are quite rare in Arizona.\\\"\"}"

arizona/1502939.json

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+"{\"id\": \"1502939\", \"name\": \"Jerald G. OSBORN and Jamlong Osborn, his wife, Plaintiffs/Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant/Appellee\", \"name_abbreviation\": \"Osborn v. Liberty Mutual Insurance\", \"decision_date\": \"1986-03-14\", \"docket_number\": \"No. 2 CA-CIV 5659\", \"first_page\": \"18\", \"last_page\": \"20\", \"citations\": \"151 Ariz. 18\", \"volume\": \"151\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:40:24.310879+00:00\", \"provenance\": \"CAP\", \"judges\": \"LIVERMORE, P.J., and LACAGNINA, J., concur.\", \"parties\": \"Jerald G. OSBORN and Jamlong Osborn, his wife, Plaintiffs/Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant/Appellee.\", \"head_matter\": \"725 P.2d 725\\nJerald G. OSBORN and Jamlong Osborn, his wife, Plaintiffs/Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant/Appellee.\\nNo. 2 CA-CIV 5659.\\nCourt of Appeals of Arizona, Division 2, Department B.\\nMarch 14, 1986.\\nReview Denied Sept. 16, 1986.\\nHendrickson & Fuller by Richard T. Fuller, Mesa, for plaintiffs/appellants.\\nO\\u2019Connor, Cavanagh, Anderson, West-over, Killingsworth & Beshears, P.C. by Scott E. Boehm and Lawrence H. Lieberman, Phoenix, for defendant/appellee.\", \"word_count\": \"1199\", \"char_count\": \"7587\", \"text\": \"BIRDSALL, Judge.\\nThis appeal is from a judgment in favor of the appellee, Liberty Mutual Insurance Co., entered notwithstanding a jury verdict for $68,000 in favor of the appellants, Jerald G. Osborn and wife Jamlung Osborn. The jury verdict was returned on the negligence count of the appellants' complaint. The jury found that Liberty was negligent in its furnishing of medical care and treatment to the appellant, Jerald. Liberty was obligated to provide Jerald care and treatment because of an injury he sustained while driving a truck for his contract employer North American Van Lines (NAVL). The accident resulting in his injury occurred in Iowa when a strong wind literally blew his truck off the interstate highway. His injuries were compensable under Indiana workmen's compensation, and such a claim was made and approved. Liberty was the compensation carrier for NAVL. Because Jerald was an Arizona resident, his medical treatment was transferred to Arizona after his release from the Nebraska hospital where he was first treated. It is this Arizona treatment and care which he claimed was negligently provided by Liberty.\\nThe appellant's complaint also alleged bad faith by Liberty, but the jury found against him by separate verdict. No issue of bad faith is presented in this appeal. Originally two physicians were also named as defendants in the trial court. A medical liability review panel unanimously found in their favor, however, and the trial court summarily dismissed them because Jerald was unable to produce any evidence that their services fell below any medical standard of care.\\nThe trial court granted Liberty's motion for judgment n.o.v. because of the opinion of Division One of our court in Sandoval v. Salt River Project, 117 Ariz. 209, 571 P.2d 706 (App.1977). That discussion was rendered before the decision in Quiles v. Heflin Steel Supply Co., 145 Ariz. 73, 699 P.2d 1304 (App.1985), which held that rights as between worker, employer, and employer's insurance carrier, or worker and carrier, were governed by California law and not that of Arizona. In Quiles, compensation had been claimed and allowed in California, and the court held that the compensation scheme of that state applied. The appellee, Liberty, now urges that Quiles is the first and best reason to affirm the trial court in the instant case. It contends that because Indiana workmen's compensation law makes the rights and remedies granted therein to the employee exclusive, Jerald could not pursue his tort action in Arizona. We agree and affirm.\\nWe rely first upon the following provisions of .the Indiana Code:\\n\\\"22-3-6-1. Definitions \\u2014 In IC-22-3-2 through IC-22-3-6, unless the context otherwise requires:\\n(a) 'Employer' includes the state and any political subdivision, any municipal corporation within the state, any individual, firm, association or corporation or the receiver or the trustee of the same, or the legal representatives of a deceased person, using the services of another for pay. If the employer is insured, the term includes his insurer so far as applicable.\\n22-3-2-5. Insurance by employers\\u2014 carrying risk without insurance \\u2014 establishment of program of self insurance\\u2014\\n(a) Every employer who is bound by the compensation provisions of [the workmen's compensation act] . shall insure the payment of compensation to his employees and their dependents in the manner hereinafter provided . and while such insurance remains in force, he or those conducting his business and his workmen's compensation insurance carrier shall be liable to any employee and his dependents for personal injury or death by accident arising out of and in the course of employment only to the extent and in the manner herein specified. 22-3-2-6. Rights and remedies of employee exclusive\\u2014\\nThe rights and remedies granted to an employee subject to [the workmen's compensation act] on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, common law or otherwise, on account of such injury or death____\\\"\\nWe also find that Indiana Code 22-3-3-4 requires the employer to furnish medical, surgical, hospital, and nursing services necessary to treat the employee's injury. This section also provides for application to the industrial board to secure such services and for further services to limit or reduce the amount and extent of an employee's impairment. The same code section further provides that if, because of the employer's failure to so provide such necessary services, another physician treats or other such services are provided, the reasonable cost thereof shall, subject to the approval of the industrial board, be paid by the employer.\\nWe are also persuaded by decisions of the Indiana appellate courts that Indiana law makes the industrial board the exclusive arbiter of claims like the appellant's. McLaughlin v. American Oil Co., 181 Ind. App. 356, 391 N.E.2d 864 (1979), and the earlier decision of Burkhart v. Wells Electronics, 139 Ind.App. 658, 215 N.E.2d 879 (1966) both hold that an independent suit is barred by the Workmen's Compensation Act if the injury arose out of and in the course of employment. The appellant's injury did so arise. He accepted both compensation and medical treatment for it. His claim, and the evidence supporting it, was that Liberty refused to allow or authorize treatment by a different physician and that the physicians, care, and treatment that were provided were inadequate. As a result, the appellant claimed, and his only evidence showed, that his injuries were aggravated and prolonged. The damages thus caused were additional pain and suffering, medical expenses, and loss of wages due to inability to return to work sooner. These claims and damages all relate to his accident and all are within the jurisdiction of the Indiana Industrial Board. See also Baker v. American States Insurance Co., \\u2014 Ind.App.\\u2014, 428 N.E.2d 1342 (1981) and Cunningham v. Aluminum Co. of America, Inc.,\\u2014Ind.App.\\u2014, 417 N.E.2d 1186 (1981). The right of an employee to maintain an action for negligence against a workmen's compensation carrier is the subject of an annotation in 93 A.L.R.2d 598 (1964). A case directly on point from another jurisdiction is Nation v. Certain Feed Corp., 84 Cal.App.3rd 813, 149 Cal.Rptr. 62 (1978).\\nWe find it unnecessary to answer other issues presented in the briefs since we find the foregoing dispositive of this appeal. The trial court properly granted the motion for judgment n.o.v.\\nAffirmed.\\nLIVERMORE, P.J., and LACAGNINA, J., concur.\\n. The appellee contends, for example, that if we were required to follow Arizona law, we would reach the same result, citing Sandoval, supra. Such an analysis would also require us to consider the majority and dissenting opinions in Franks v. USF & G, 149 Ariz. 291, 718 P.2d 193 (1985). Even though the claim considered there was bad faith, a theory rejected by the jury in the instant case, much of the reasoning in Franks is relevant, particularly that found in the dissent.\"}"

arizona/1502972.json

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+"{\"id\": \"1502972\", \"name\": \"William JOLLY; and Jolly Realty and Investment Co., an Arizona corporation, Plaintiffs-Appellants, v. KENT REALTY, INC., a corporation; Rosemary Kent, Trustee under the Kent Family Trust; W.R. Kent, an unmarried man as his sole and separate property, Vernon F. Edwards, an unmarried man as his sole and separate property; Cyril E. Tammage, and Janie C. Tammage, husband and wife; and Janus Poppe and Karen Poppe, husband and wife, Defendants-Appellees\", \"name_abbreviation\": \"Jolly v. Kent Realty, Inc.\", \"decision_date\": \"1986-06-19\", \"docket_number\": \"No. 1 CA-CIV 8386\", \"first_page\": \"506\", \"last_page\": \"513\", \"citations\": \"151 Ariz. 506\", \"volume\": \"151\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:40:24.310879+00:00\", \"provenance\": \"CAP\", \"judges\": \"GRANT, P.J., and MINKER, J., concur.\", \"parties\": \"William JOLLY; and Jolly Realty and Investment Co., an Arizona corporation, Plaintiffs-Appellants, v. KENT REALTY, INC., a corporation; Rosemary Kent, Trustee under the Kent Family Trust; W.R. Kent, an unmarried man as his sole and separate property, Vernon F. Edwards, an unmarried man as his sole and separate property; Cyril E. Tammage, and Janie C. Tammage, husband and wife; and Janus Poppe and Karen Poppe, husband and wife, Defendants-Appellees.\", \"head_matter\": \"729 P.2d 310\\nWilliam JOLLY; and Jolly Realty and Investment Co., an Arizona corporation, Plaintiffs-Appellants, v. KENT REALTY, INC., a corporation; Rosemary Kent, Trustee under the Kent Family Trust; W.R. Kent, an unmarried man as his sole and separate property, Vernon F. Edwards, an unmarried man as his sole and separate property; Cyril E. Tammage, and Janie C. Tammage, husband and wife; and Janus Poppe and Karen Poppe, husband and wife, Defendants-Appellees.\\nNo. 1 CA-CIV 8386.\\nCourt of Appeals of Arizona, Division 1, Department D.\\nJune 19, 1986.\\nWilliam F. Behrens, Phoenix, for plaintiffs-appellants.\\nSternberg, Sternberg & Rubin by Mitchell Reichman, Phoenix, for defendants-appellees.\", \"word_count\": \"4183\", \"char_count\": \"26110\", \"text\": \"BROOKS, Judge.\\nIn this case the plaintiffs William Jolly and Jolly Realty and Investment Co. appeal the trial court's judgment dismissing their complaint for specific performance of an alleged agreement to sell real property and for recovery of a real estate broker's commission. Because matters outside the pleadings were presented to and not excluded by the trial court, we view the judgment as one of summary judgment pursuant to Rule 56, Arizona Rules of Civil Procedure. See Rule 12(b), Arizona Rules of Civil Procedure. The appeal presents for our consideration the following issues: (1) whether the trial court erred in holding that the documents that formed the alleged contract were improperly signed and did not satisfy the statute of frauds, A.R.S. \\u00a7 44-101, and (2) whether the trial court properly rendered judgment for defendants on the principle that one co-tenant may not bind other co-tenants under the circumstances of this case.\\nThe record reveals the following facts. Defendants acquired ownership of an apartment complex in Phoenix through an agreement for the sale of real property executed in January of 1979. Under the sale agreement the defendants each received undivided interests in the property in varying percentages. At or around the time the sale agreement was executed, defendants entered into an agreement among themselves entitled \\\"Joint Venture Agreement.\\\" This agreement recited that it was \\\"one between co-investors (joint venturers) and not between partners.\\\" Each co-investor was to own a percentage of the joint venture equal to his or her percentage ownership in the property being purchased. Under the heading \\\"Objectives\\\" the agreement provided:\\nThe objective of the joint venture is to acquire, hold and manage, sell or exchange apartment investments to secure maximum appreciation, tax shelter, income and return for monies invested consistent with good business practices and changing economic conditions.\\nThe agreement provided that if an investor desired to sell his or her share of the investment, the remaining investors would have priority in purchasing it. The agreement further contemplated that the net income from the investment, after any necessary contributions to a $5,000 contingency reserve account and payment of current expenses, would be distributed to the joint venturers according to their percentage of ownership. The agreement also provided that defendant Kent Realty Company would manage the property for the joint venture in exchange for 5% of the gross income from the investment. Under the heading of \\\"Investment Decisions,\\\" the agreement further provided:\\nDecisions affecting the future worth of the investment, expenditures other than normal expenses and such other decisions as is deemed important by any of the joint venturers shall be referred to the entire group for consideration. Decisions will then be made with each investor casting the number of votes equal to his percentage of ownership. All decisions made in this manner must be supported by a 51% or more majority vote.\\nThe agreement also required the joint venturers to contribute any additional funds \\\"required for any purpose in furtherance of the joint venture that are in excess of the initial capital contributions by the investors and the amount accumulated in the CONTINGENCY RESERVES\\\" in the same proportions as their percentages of ownership. The agreement also provided that death of any investor would not dissolve the joint venture, and that the joint venture would continue \\\"without interruption with the executor or administrator of the decedent's estate replacing the decedent.\\\"\\nIn January and February of 1984, plaintiff William Jolly and defendant William Kent, nominally acting for \\\"Kent Realty, Inc., etc.,\\\" engaged in negotiations whereby Jolly sought to buy the joint venture property on behalf of \\\"Sunny Hills Assoc., a General Partnership to be formed and/or Nominees or assignees].\\\" Jeffrey Jacobs, a real estate broker, participated in the negotiations on Jolly's behalf. Jolly's affidavit stated in part:\\nAffiant has likewise ascertained from Mr. Jeff Jacobs, one of the brokers in connection with the transaction, that Mr. Kent likewise told him that he (Mr. Kent) and his co-tenants were partners; that he and his ex-wife (Rosemary Kent) together control 65% of the partnership; that 51% is all they need; that hence he (Mr. Kent) did not need the other partners' approval; and that they have a partnership agreement.\\nIn his own affidavit Kent stated that he always referred to his \\\"co-tenants-in-common\\\" as \\\"partners,\\\" and that when he used the term \\\"partner\\\" he was referring to his co-investors in the subject property. He stated:\\nThose references in which it is alleged that I used the term \\\"partnership\\\" and \\\"partnership agreement\\\" I was referring to the Joint Venture Agreement attached hereto. There is no other written agreement between the co-investors for the subject property.\\nOn January 24, 1984, Jolly submitted to Kent a written offer to buy the property ' for $900,000. The offer was submitted on a printed form \\\"Real Estate Purchase Contract and Receipt for Deposit,\\\" and included a typewritten addendum with additional provisions. Kent did not execute this document. Instead, on January 25, 1984 he submitted a written counteroffer on a printed form \\\"Supplement to Real Estate Purchase and Receipt for Deposit.\\\" Kent's signature on the \\\"Supplement\\\" appeared on a signature line for \\\"Seller\\\" under the printed words: \\\"The undersigned acknowledge receipt of a copy hereof and authorize Broker to deliver a signed copy to Buyer.\\\"\\nJolly did not execute the \\\"Supplement\\\" of January 25, 1984, but rather submitted to Kent a counteroffer on another \\\"Supplement\\\" form dated February 1, 1984. Jolly executed this counteroffer on a signature line for \\\"Buyer\\\" under the printed words: \\\"The undersigned acknowledge receipt of a copy hereof and authorize Broker to deliver a signed copy to Seller.\\\"\\nKent did not execute this counteroffer, and instead submitted another counteroffer to Jolly on a \\\"Supplement\\\" form dated February 2, 1984. The handwritten portion of this document stated in part as follows:\\nLet this serve as a Counter Offer to the Counter Offer by the buyer dated February 1,1984 which was a Counter Offer to the Counter Offer signed and dated by the Seller, January 25, 1984 which was a Counter Offer to the Real Estate Purchase Contract dated January 24, 1984.\\n\\nThis Counteroffer must be accepted by Saturday, February 4, 1984, 5 p.m. MST. All other terms and conditions of the Real Estate Purchase Contract, including the addendum, and its counteroffers shall remain in full force and effect.\\nAs on Kent's earlier counteroffer of January 25, 1984, Kent's signature appeared under printed language stating: \\\"The undersigned acknowledge receipt of a copy hereof and authorize Broker to deliver a signed copy to Buyer.\\\"\\nImmediately below Kent's signature, the \\\"Supplement\\\" form contained printed language which stated as follows:\\nAbove modifications or additions are approved and accepted.\\nThe undersigned acknowledge receipt of a copy hereof and authorize Broker to deliver a signed copy to Seller.\\nJolly signed in the space indicated for \\\"Buyer\\\" under this language and added the date of February 3,1984. The \\\"Supplement\\\" form also included the following provision under the \\\"Buyer\\\" signature line: FINAL ACCEPTANCE BY SELLER:\\nDated_\\nThe above counteroffer by buyer(s) is approved and accepted. The undersigned acknowledge receipt of a copy hereof and authorize Broker to deliver a copy to Buyer.\\nX_ X_\\nSeller Seller\\nThis provision was left blank.\\nAfter Jolly signed the \\\"Supplement\\\" form on February 3, 1984, Kent signed and delivered to Jolly a handwritten sheet containing the \\\"rent roll\\\" for the apartment complex and stating:\\nPlease permit Bill Jolly or Jeff Jacobs to check old utility bills for my property located at 927 W. Cheryl and 10,001-10,-033 Phoenix.\\nOn February 8, 1984 Jolly opened an escrow at Western Title Agency. On that same day, Jolly, Kent and two others made a partial inspection of the apartment complex. On February 13, 1984, Kent told Jolly over the telephone that \\\"said realty was in a partnership and that he needed to obtain the partners' approval for the sale.\\\" According to plaintiffs' complaint, defendant Kent Realty, Inc. later halted Jolly's performance under the alleged contract, and despite Jolly's demands, failed and refused to perform.\\nPlaintiffs commenced the instant action on March 22, 1984. Defendants moved to dismiss. Both sides later submitted affidavits and documents in support of their positions. By minute entry of January 7, 1985, the trial court ruled:\\nThere being no sale documents properly signed by the Plaintiff, Defendants' Motion to Dismiss is granted.\\nPlaintiffs thereafter moved for reconsideration. The trial court denied that motion in a minute entry ruling dated March 1, 1985, stating:\\nThe Court has indeed reconsidered and now reaffirms the prior dismissal of this matter for the dual reasons that the documents in question were improperly signed and thus do not satisfy the Statute of Frauds and for the further reason that one co-tenant may not bind other co-tenants under these circumstances.\\nA formal order and judgment of dismissal with prejudice was entered on March 1, 1985, and plaintiffs brought this appeal. We have jurisdiction pursuant to A.R.S. \\u00a7 12-2101(B).\\nPlaintiffs first argue that the trial court erred in holding as a matter of law that there was no sale document properly signed by plaintiff Jolly. Defendants do not respond directly to this argument, and instead contend that the trial court's ruling must be affirmed because defendant Kent Realty, Inc. never signed the \\\"Final Acceptance by Seller\\\" space on the \\\"Supplement\\\" of February 2, 1984, and that no enforceable contract was ever formed. In our opinion the trial court's ruling was wrong on either theory. A.R.S. \\u00a7 44-101 provides in pertinent part:\\nNo action shall be brought in any court in the following cases unless the promise or agreement upon which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged, or by some person by him thereunto lawfully authorized:\\n\\n6. Upon an agreement for leasing for a longer period than one year, or for the sale of real property or an interest therein. Such agreement, if made by an agent of the party sought to be charged, is invalid unless the authority of the agent is in writing, subscribed by the party sought to be charged.\\nIn Shreeve v. Greer, 65 Ariz. 35, 173 P.2d 641 (1946), Shreeve owned real property which Melvin Greer and Byron Heap and their wives sought to purchase. The writing in question was a contract in the form of a receipt which only Shreeve and Byron Heap signed. Shreeve later refused to sell. Appealing from a decree of specific performance rendered by the trial court, Shreeve argued in the Arizona Supreme Court that the writing was inadequate under the predecessor to A.R.S. \\u00a7 44-101(6) because neither Mrs. Heap nor Greer nor Greer's wife had signed it. The court stated:\\nWe cannot see the applicability of this section to the facts here under consideration. The party here sought to be charged was the seller. She is the person who signed the memorandum. A contract in the form of a receipt is binding and will take the transaction out of the statute of frauds, and will support specific performance. Finn v. Goldstein, 201 Cal. 605, .258 P. 85 [1927].\\n65 Ariz. at 39, 173 P.2d at.644. In this case it is defendants and not plaintiff Jolly who are the \\\"partpes] to be charged----\\\" Accordingly, Jolly's asserted failure to properly execute the \\\"Supplement\\\" signed by Kent on February 2, 1984 did not negate its sufficiency as a \\\"memorandum\\\" within A.R.S. \\u00a7 44-101.\\nWe are also of the opinion that the trial court erred to the extent it held that the signature of defendant Kent Realty, Inc. on the \\\"Supplement\\\" was such that it could not have given rise to an enforceable contract. The \\\"Supplement\\\" was prepared by or on behalf of defendant Kent Realty, Inc. Its handwritten provisions specifically designated it as a counteroffer to Jolly's counteroffer of February 1, 1984 and required that it be \\\"accepted\\\" by 5:00 p.m. on February 4, 1984. Immediately following the handwritten provisions appeared printed language which stated: \\\"The undersigned acknowledge receipt of a copy hereof and authorize Broker to deliver a signed copy to Buyer.\\\" Defendant William Kent signed the document and dated it February 2, 1984 on blanks provided for those purposes directly under the quoted language. In our opinion, when defendant Kent signed the document, it constituted an unconditional counteroffer to form a contract on the terms stated therein.\\nDirectly below Kent's signature appeared the following printed language:\\nAbove modifications or additions are approved and accepted.\\nThe undersigned acknowledge receipt of a copy hereof and authorize Broker to deliver a signed copy to Seller.\\nRight below this language, plaintiff Jolly signed and dated the \\\"Supplement\\\" on spaces provided for those purposes. In our opinion, Jolly's signature on the \\\"Supplement\\\" constituted an acceptance of the counteroffer. Leaving aside for the moment the question of whether defendant Kent Realty, Inc. had legal authority to enter into a sale contract that bound the remaining defendants, Jolly's signature was the last step needed for the formation of a contract.\\nDefendants nevertheless argue that Kent's signature was only \\\"for the limited purpose of acknowledging receipt and authorizing delivery\\\" of the document, and that because the parties never reached the \\\"final acceptance stage of the negotia tions,\\\" no enforceable contract was ever executed. This argument fundamentally misreads the clear purpose of the printed form the parties used in this case. For ease of reference, we recapitulate the printed signature provisions of the \\\"Supplement\\\" as follows:\\nThe undersigned acknowledge receipt of a copy hereof and authorize Broker to deliver a signed copy to Buyer.\\nDated_X_X_\\nSeller Seller\\nAbove modifications are approved and accepted.\\nThe undersigned acknowledge receipt of a copy hereof and authorize Broker to deliver a signed copy to Seller.\\nDated_X_X_\\nBuyer Buyer\\nFINAL ACCEPTANCE BY SELLER:\\nDated_\\nThe above counter offer by Buyer(s) is approved and accepted. The undersigned acknowledge receipt of a copy hereof and authorize Broker to deliver a copy to Buyer.\\nX_ X_\\nSeller Seller\\nAs we read it, the \\\"Supplement to Real Estate Purchase Contract and Receipt for Deposit\\\" was designed to be used either to convey a prospective seller's counteroffer to his prospective buyer, or to convey a prospective buyer's counteroffer to his prospective seller. Where the form is used as a counteroffer from prospective buyer to prospective seller, the prospective buyer signs and dates his counteroffer on the signature line for \\\"Buyer\\\" under the language \\\"the undersigned acknowledge receipt of a copy hereof and authorize Broker to deliver a signed copy to Seller.\\\" If the prospective seller determines to accept the prospective buyer's counteroffer, he signs and dates the document on the lines provided under the words \\\"Final Acceptance by Seller.\\\" In this situation, the \\\"Seller\\\" signature lines that appear above the signature lines for \\\"Buyer\\\" are superfluous and would be left blank.\\nWhere the form is used to convey a counteroffer from a prospective seller to a prospective buyer, however, as occurred here, it is the provision beginning with \\\"Final Acceptance by Seller\\\" that would be left blank as unnecessary. In that instance the prospective seller would sign and date his counteroffer on the signature lines for \\\"Seller\\\" under the language \\\"The undersigned acknowledge a receipt of a copy hereof and authorize Broker to deliver a signed copy to Buyer.\\\" If the prospective buyer determined to accept the counteroffer, he would sign and date the document in the spaces provided under the following language:\\nAbove modifications or additions are approved and accepted.\\nThe undersigned acknowledge receipt of a copy hereof and authorize Broker to deliver a signed copy to Seller.\\nContrary to defendants' argument, in this situation the contract is complete when the prospective buyer signs the document. Accordingly, defendant Kent Realty's failure to sign the \\\"Supplement\\\" in this case under the \\\"Final Acceptance by Seller\\\" language below the \\\"Buyer\\\" signature lines did not prevent the formation of a contract.\\nWe next consider the question of whether the trial court erred in dismissing plaintiffs' action on the ground that one co-tenant cannot bind his other co-tenants to a contract to sell jointly owned property under the circumstances of this case. We acknowledge the general proposition that a tenant-in-common cannot convey away or alienate the interest of another co-tenant unless he is clearly and properly authorized to do so. Monaghan v. Barnes, 48 Ariz. 213, 61 P.2d 158 (1936); Beckstrom v. Beckstrom, 578 P.2d 520 (Utah 1978); 86 C.J.S. Tenancy in Common \\u00a7 119 (1954). Defendant Kent Realty, Inc. thus had no power to bind the remaining defendants to a contract to sell the real property based solely on its status as their co-tenant.\\nPlaintiffs nevertheless argue that defendant Kent Realty, Inc. had authority to enter into the contract on behalf of the remaining defendants independent of its status as their co-tenant. In support of this argument plaintiffs cite defendant William Kent's statement to broker Jeffrey Jacobs and others that he had authority to act on behalf of his \\\"partners.\\\" In the same vein, plaintiffs assert that in connection with the transaction at issue Kent consistently behaved as if he had such authority. It is clear, however, that Kent's own statements and behavior were insufficient as a matter of law to demonstrate the required authority. It is well settled that the declarations of an agent are insufficient to establish the fact or extent of his authority. See Bank of America, National Trust and Savings Association v. Barnett, 87 Ariz. 96, 348 P.2d 296 (1960); Hudlow v. American Estate Life Insurance Co., 22 Ariz.App. 246, 526 P.2d 770 (1974); Phoenix Western Holding Corporation v. Gleeson, 18 Ariz.App. 60, 500 P.2d 320 (1972). Moreover, despite several opportunities to do so, plaintiffs produced no evidence that defendant Kent Realty, Inc. had express, implied or apparent authority to act for the remaining defendants in selling the subject property. See generally Restatement (Second) of Agency \\u00a7 7, 8, 26, 27 and 49 (1958).\\nPlaintiffs also contend that defendant Kent Realty, Inc. had the power to bind the remaining defendants to the sale contract pursuant to A.R.S. \\u00a7 29-209(A) and 29-210(D). A.R.S. \\u00a7 29-210(D) provides:\\nWhere the title to real property is in the name of one or more or all the partners, or in a third person in trust for the partnership, a conveyance executed by a partner in the partnership name, or in his own name, passes the equitable interest of the partnership, provided the act is one within the authority of the partner under the provisions of subsection (A), of \\u00a7 29-209.\\nA.R.S. \\u00a7 29-209 provides in pertinent part:\\nA. Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership, unless the partner so. acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority.\\nB. An act of a partner which is not apparently for the carrying on of the business of the partnership in the usual way does not bind the partnership unless authorized by the other partners.\\nIf a partner's act in selling partnership real property constitutes \\\"apparently carrying on in the usual way the business of the partnership,\\\" the provisions of A.R.S. \\u00a7 29-209(A) (Uniform Partnership Act \\u00a7 9(1)) supersede the requirement of the statute of frauds (A.R.S. \\u00a7 44-101) that the partner have written authority to do so. Ball v. Carlson, 641 P.2d 303 (Colo.App.1981); Ellis v. Mihelis, 60 Cal.2d 206, 32 Cal.Rptr. 415, 384 P.2d 7 (1963). If the sale of partnership real property does not constitute \\\"apparently carrying on in the usual way the business of the partnership,\\\" however, the selling partner does not bind the partnership absent written authority executed by the remaining partners. Feingold v. Davis, 444 Pa. 339, 282 A.2d 291 (1971); Ellis v. Mihelis, supra.\\nFor the purpose of examining plaintiffs' contention that defendant Kent Realty, Inc. had the power to bind the other defendants under A.R.S. \\u00a7 29-209(A), we will assume that the joint venture agreement of January, 1979 established a partnership relationship among the defendants. Defendant Kent Realty, Inc. had no written authority from its partners to sell the real property in question. Kent Realty's agreement to sell the property to plaintiffs accordingly bound the partners only if Kent Realty was \\\"apparently carrying on in the usual way the business of the partnership\\\" in entering into that agreement. Plaintiffs argue that it was, citing the provision of the joint venture agreement that the joint venture's \\\"objectives\\\" included selling or exchanging apartment investments. We disagree. Although the joint venture agreement clearly contemplated that the joint venture's business activities might include the selling or exchanging of apartment investments, plaintiffs offered no evidence in the trial court that such activity was in fact a \\\"usual\\\" occurrence in the course of the joint venture's actual business operation. The only indication in the record on this point is actually to the contrary \\u2014 the joint venture was formed in January of 1979 concurrently with the joint venturers' purchase of a particular apartment complex, and the joint venture continued to hold and operate the same apartment complex through the negotiations that generated this litigation. We accordingly conclude as a matter of law that defendant Kent Realty's actions did not constitute \\\"apparently carrying on in the usual way the business of the partnership,\\\" and that its defendant partners were not bound under A.R.S. \\u00a7 29-209(A) and 29-210(D) to sell their property in accordance with the contract between Kent Realty and plaintiff Jolly. Cf. Macy v. Oswald, 198 Pa.Super. 435, 182 A.2d 94 (1962) (partner cannot validly dispose of capital assets which are not partnership's stock-in-trade without consent of his co-partner). Accord Matter of Verrazzano Towers, Inc., 10 B.R. 387 (E.D.N.Y.1981); Ditzel v. Kent. 131 Mont. 129, 308 P.2d 628 (1957); Petrikis v. Hanges, 111 Cal.App.2d 734, 245 P.2d 39 (1952). See also Owens v. Palos Verdes Monaco, 142 Cal.App.3d 855, 191 Cal.Rptr. 381 (1983).\\nDefendants have requested an award of attorney's fees on appeal pursuant to Rule 21(c)(1), Arizona Rules of Civil Appellate Procedure. In our discretion under A.R.S. \\u00a7 12-341.01(A) we deny the request.\\nAffirmed.\\nGRANT, P.J., and MINKER, J., concur.\\nNOTE: The Honorable ALLEN G. MINK-ER, Greenlee County Superior Court Judge, was authorized to participate by the Chief Justice of the Arizona Supreme Court pursuant to Arizona Const, art. VI, \\u00a7 3.\\n. The percentage interests assigned to each defendant were as follows: Kent Realty, Inc.\\u2014 35%; Rosemary Manion \\u2014 17.5%; W.R. Kent\\u2014 15%; Vernon F. Edwards \\u2014 12.5%; Cyril E. and Janie C. Tammage \\u2014 10%; Janus and Karen Poppe \\u2014 10%.\\n. This form is identified as \\\"Form No. 6\\\" of the \\\"Arizona Association of REALTORS,\\\" copyright 1983.\\n. This form is identified as \\\"Form No. 2\\\" of the \\\"Arizona Association of REALTORS,\\\" copyright 1976, 1979, 1980 and 1982.\\n. The fundamental requisites of a partnership are intention, co-ownership of business, community of interest, and community of power in administration. Myrland v. Myrland, 19 Ariz. App. 498, 508 P.2d 757 (1973). See A.R.S. \\u00a7 29-206, 29-207. The essential elements of a partnership may be established by demonstrating the existence of an agreement between the putative partners to work together to acquire property for their joint benefit and to divide all the profits made therefrom equally. Fernandez v. Garza, 88 Ariz. 214, 354 P.2d 260 (1960). See Mercer v. Vinson, 85 Ariz. 280, 336 P.2d 854 (1959); Tafoya v. Trisler, 8 Ariz.App. 250, 445 P.2d 452 (1968). A joint venture differs from a partnership principally because it is usually limited to a single transaction. Rubi v. Transamerica Title Insurance Co., 131 Ariz. 403, 641 P.2d 891 (App.1981). A joint venture requires an agreement, a common purpose, a community of interest, and an equal right of control. Sparks v. Republic National Life Insurance Co., 132 Ariz. 529, 647 P.2d 1127 (1982); West v. Soto, 85 Ariz. 255, 336 P.2d 153 (1959); Ellingson v. Sloan, 22 Ariz.App. 383, 527 P.2d 1100 (1974).\\n. The provision of the joint venture agreement concerning \\\"investment decisions\\\" could not be construed as written authority for the sale absent evidence that the joint venturers had specifically approved it \\\"by a 51% or more majority vote.\\\" Plaintiffs offered no such evidence in the trial court.\"}"

arizona/1505958.json

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+"{\"id\": \"1505958\", \"name\": \"In the Matter of the Guardianship and Conservatorship of Leonard F. MONTI, Sr., an Adult, Respondent-Appellee, v. Leonard F. MONTI, Jr., Petitioner-Appellant\", \"name_abbreviation\": \"Guardianship of Monti v. Monti\", \"decision_date\": \"1996-09-12\", \"docket_number\": \"Nos. 1 CA-CV 95-0302, 1 CA-CV 95-0540\", \"first_page\": \"432\", \"last_page\": \"436\", \"citations\": \"186 Ariz. 432\", \"volume\": \"186\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T02:11:07.854643+00:00\", \"provenance\": \"CAP\", \"judges\": \"TOCI, P.J., and PATTERSON, J., concur.\", \"parties\": \"In the Matter of the Guardianship and Conservatorship of Leonard F. MONTI, Sr., an Adult, Respondent-Appellee, v. Leonard F. MONTI, Jr., Petitioner-Appellant.\", \"head_matter\": \"924 P.2d 122\\nIn the Matter of the Guardianship and Conservatorship of Leonard F. MONTI, Sr., an Adult, Respondent-Appellee, v. Leonard F. MONTI, Jr., Petitioner-Appellant.\\nNos. 1 CA-CV 95-0302, 1 CA-CV 95-0540.\\nCourt of Appeals of Arizona, Division 1, Department A.\\nSept. 12, 1996.\\nRenaud, Cook & Drury, P.A. by J. Gordon Cook, Richard N. Crenshaw, Diana L. Clarke, Phoenix, for Petitioner-Appellant.\\nBurch & Cracchiolo, P.A by Daryl D. . Manhart, Thomas A. Longfellow, Guadalupe Iniguez, Phoenix, for Respondent-Appellee Leonard F. Monti, Sr.\\nBernstein & Appel by Marlene Appel, Phoenix, for Respondent-Appellee Michael L. Monti.\\nO\\u2019Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Leigh A. Kay-lor, Phoenix, for Respondent-Appellee Shirley L. Monti.\", \"word_count\": \"2490\", \"char_count\": \"15185\", \"text\": \"OPINION\\nNOYES, Judge.\\nThe question is whether the trial court had jurisdiction to award attorneys' fees pursuant to A.R.S. section 12-349(A)(1) (1992) after entry of final judgment. Declining to follow Hamm v. Y & M Enterprises, Inc., 157 Ariz. 336, 757 P.2d 612 (App.1988), we hold that the rule announced in Mark Lighting Fixture Co. v. General Electric Supply Co., 155 Ariz. 27, 745 P.2d 85 (1987), governs all claims for attorneys' fees in Arizona, unless a rule of procedure or a statute otherwise provides. Applying the Mark Lighting rule here, we conclude that the trial court lacked jurisdiction for two post-judgment awards of attorneys' fees.\\nI\\nIn November 1994, Appellant Leonard F. Monti, Jr. filed one petition for temporary conservatorship and another for appointment of a conservator and guardian for his father, Appellee Leonard F. Monti, Sr. At the first hearing, the trial court consolidated the petitions, directed a verdict for Appellee, and dismissed the petitions. Final judgment was entered on January 27, 1995, prior to any ruling on Appellee's motion for attorneys' fees, which had been filed on January 26.\\nAppellee's motion requested an award of attorneys' fees and costs pursuant to Rule 11, Arizona Rules of Civil Procedure (\\\"Rule\\\"), and A.R.S. sections 12-341.01(0) (1992) and 12-349(A)(1) and (2). In summary, Appel- lee's motion alleged that Appellant's lawsuit constituted harassment, was groundless, and was not made in good faith. Appellant denied the allegations and also argued that Appellee's claim for fees was precluded by entry of final judgment.\\nAfter a hearing, the trial court denied preclusion, made findings, and awarded Appellee attorneys' fees and costs pursuant to section 12-349(A)(1), which is directed at one who \\\"[bjrings or defends a claim without substantial justification.\\\" On May 9 the trial court entered judgment against Appellant for nearly $32,000 in attorneys' fees and costs. Appellant objected to the form of judgment and moved for clarification. The trial court denied relief and, in a judgment entered on July 19, sanctioned Appellant with an additional $1,585 in attorneys' fees. Appellant appealed all three judgments. One of the appeals was too late.\\nRule 9(a), Arizona Rules of Civil Appellate Procedure, provides that: \\\"A notice of appeal . shall be filed with the clerk of the superi- or court not later than 30 days after the entry of the judgment from which the appeal is taken, unless a different time is provided by law.\\\" On May 30 Appellant filed a notice of appeal from both the January 27 judgment of dismissal (the \\\"merits\\\" appeal) and the May 9 sanctions judgment. On August 17 Appellant filed a notice of appeal from the July 19 sanctions judgment.\\nAfter this Court consolidated the appeals, Appellee moved to dismiss the \\\"merits\\\" appeal on grounds that the May notice of appeal was untimely regarding the January judgment. A panel of this Court agreed, and it dismissed the \\\"merits\\\" appeal in September 1995, explaining, in part, that:\\nA claim for attorneys' fees is not a separate claim for purposes of determining the finality of a judgment. See Title Insurance Company of Minnesota v. Acumen Trading Co., 121 Ariz. 525, 591 P.2d 1302 (1979). Accordingly, appellant's failure to file a notice of appeal not later than thirty days [from] the judgment denying a temporary conservatorship and denying the petition for appointment of a conservator and guardian was untimely and this court lacks jurisdiction over that judgment.\\nHaving obtained dismissal of Appellant's \\\"merits\\\" appeal on grounds that attorneys' fees were not a separate claim and the January judgment was final, Appellee now argues that attorneys' fees were a separate claim which the trial court had jurisdiction to decide after entering the January final judgment. We conclude that, because final judgment on the merits was entered in January, the trial court lacked jurisdiction to award attorneys' fees in May and July. We have jurisdiction of this appeal pursuant to AR.S. sections 12-2101(J) (1994) and 12-120.21(A)(1) (1992).\\nII\\nUnlike similar rules and statutes in other jurisdictions, Rule 11, section 12-341.01 and section 12-349 do not specify whether an attorneys' fees award must be included in the final judgment. See, e.g., Baker v. Williams Bros., Inc., 601 So.2d 110, 111-12 (Ala.Civ. App.1992); Northwest Wholesale Lumber, Inc. v. Anderson, 191 Wis.2d 278, 528 N.W.2d 502, 504, 508 (App.1995). Unlike similar rules and statutes in other jurisdictions, those in Arizona do not specify when a motion for attorneys' fees must be filed in relation to entry of final judgment. Compare A.R.S. \\u00a7 12-349 with Ga.Code Ann. \\u00a7 9-15-14(e) (Supp.1996) (motion may be made during action, and not later than 45 days after judgment) and Idaho Code \\u00a7 12-123(2)(a) (1990) (21 days) and Ohio Rev.Code Ann. \\u00a7 2323.51(B)(1) (1995) (21 days) and D.Conn.L.R. 9(f) (30 days) and D.Md.R. 109 (14 days).\\nMany courts treat motions for attorneys' fees as independent claims which are collateral to a decision on the merits. E.g., Budi-nich v. Becton Dickinson & Co., 486 U.S. 196, 202-03, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988) (holding that \\\"a decision on the merits is a 'final decision' for purposes of [filing an appeal pursuant to 28 U.S.C.] \\u00a7 1291 whether or not there remains for adjudication a request for attorney's fees attributable to the case\\\"); United States v. RG & B Contractors, Inc., 21 F.3d 952, 955 (9th Cir.1994); Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 98 (3d Cir.1988). The Ninth Circuit, for example, holds that attorneys' fees claims are collateral to the merits, that Rule 59 does not apply, and that the timeliness of a motion for attorneys' fees is within the discretion of the trial court. See Drucker v. O'Brien's Moving and Storage Inc., 963 F.2d 1171, 1174 (9th Cir.1992); Community Elec. Serv. v. National Elec. Contractors Ass'n, Inc., 869 F.2d 1235, 1242 (9th Cir.), cert. denied, 493 U.S. 891, 110 S.Ct. 236, 107 L.Ed.2d 187 (1989).\\nThe Arizona Rules of Civil Procedure do not address attorneys' fees issues in relation to entry of final judgment on the merits. The only Arizona procedural rule on the subject is Maricopa County Superior Court Local Rule 3.7(e)(4), which provides, in part, that \\\"formal judgment on the merits of an action shall be delayed until determination of the issue of attorneys' fees.\\\" This rule is not controlling here, for it applies only to \\\"successful party\\\" claims pursuant to A.R.S. section 12-341.0KA). See Local Rule 3.7(e)(1). This Local Rule, however, is consistent with Arizona's common law.\\nThe Arizona Supreme Court has held that, if a final judgment on the merits does not include an award of attorneys' fees pursuant to A.R.S. section 12-341.01(A), the party seeking those fees must file a motion for new trial or motion to alter or amend the judgment. Mark Lighting, 155 Ariz. at 31, 745 P.2d at 89; Title Ins. Co. of Minnesota v. Acumen Trading Co., 121 Ariz. 525, 526-27, 591 P.2d 1302, 1303-04 (1979). The motion must be filed within fifteen days after entry of final judgment. Mark Lighting, 155 Ariz. at 31, 745 P.2d at 89; see also Rule 59 (Z). If the motion is not timely filed, the trial court does not have jurisdiction to decide it. Mark Lighting, 155 Ariz. at 32, 745 P.2d at 90. Appellee did not comply with the Mark Lighting rule.\\nAppellee argues that we should follow Hamm v. Y & M Enterprises, in which Division Two of this Court found that, unlike the section 12-341.01 (A) \\\"successful party\\\" attorneys' fees award in Mark Lighting, an award under section 12-349(A)(3) \\\"is not linked to a decision on the merits\\\" and the trial court therefore had jurisdiction to make that award after entry of final judgment. See 157 Ariz. at 338, 757 P.2d at 614. Section 12-349(A)(3) is directed at one who \\\"unreasonably expands or delays the proceeding.\\\" In theory, one could violate this subsection while prevailing on the merits, and one could receive attorneys' fees under this subsection without prevailing on the merits. Such theory is inapplicable to Appellee.\\nAn essential element of all Appellee's claims for attorneys' fees is that Appellant's claims for relief were \\\"groundless.\\\" See Rule 11; A.R.S. \\u00a7 12-341.01(0, -349(A)(1), (F). A party whose claim is groundless cannot prevail on the merits, for a groundless claim has no merit. Only the party who prevails on the merits can seriously argue that the other's claim was groundless. A trial court cannot make a finding of \\\"ground-lessness,\\\" nor can an appellate court review such a finding, without considering the merits of the challenged claim. See generally, A.R.S. \\u00a7 12-350. In other words, Appellee's \\\"groundless-litigation\\\" claims for attorneys' fees are just as \\\"linked\\\" to a decision on the merits as are \\\"successful party\\\" claims pursuant to section 12-341.01(A).\\nTo provide a jurisdictional basis for Appel-lee's claims for attorneys' fees, then, the Hamm rule must be extended to apply to merit-linked claims. But doing that would ignore the not-merit-linked rationale that was Hamm's only reason for not following the Mark Lighting rule. Rather than cloud this situation further by extending or distinguishing Hamm, we think it best to respectfully reject Hamm and to clearly hold that Mark Lighting states the general rule for attorneys' fees claims in Arizona.\\n\\\"The time of appealability, having jurisdictional consequences, should above all be clear.\\\" Budinich, 486 U.S. at 202, 108 S.Ct. at 1722. So long as Hamm and Mark Lighting co-exist, both the time of appealability and the time for resolving attorneys' fees claims are unclear in Arizona, as evidenced by what happened in this case. Whether Mark Lighting states a better rule than Hamm can be debated, but either one will work, and either one will provide the neces sary clarity once it is recognized as the Arizona rule.\\nThe Arizona Supreme Court adopted the Mark Lighting rule several years ago, and it has worked well regarding Arizona's most-frequently-invoked attorneys' fees statute, AR.S. section 12.341.01(A). The Arizona bench and bar are accustomed to resolving attorneys' fees issues prior to entry of final judgment and there is much to commend such a practice, for it facilitates timely trial court resolution of all matters and results in one final judgment from which any appeal must be taken.\\nWe hold that the Mark Lighting rule governs all claims for attorneys' fees in Arizona, unless a rule of procedure or a statute otherwise provides.\\nIll\\nThe trial court's January 27, 1995, judgment of dismissal was a final judgment. See Theriault v. Scottsdale Enters., 157 Ariz. 77, 78, 754 P.2d 1352, 1353 (App.1987). The final judgment was entered while Appellee's motion for attorneys' fees was pending. When the final judgment did not address the motion, the motion was considered denied by operation of law. State v. Hill, 174 Ariz. 313, 323, 848 P.2d 1375, 1385, cert. denied, 510 U.S. 898, 114 S.Ct. 268, 126 L.Ed.2d 219 (1993). Appellee did not file a motion to amend the January judgment.\\nBecause the January final judgment was not amended, the trial court lacked jurisdiction to enter May and July judgments awarding attorneys' fees. Because we decide the appeal on jurisdictional grounds, we do not address Appellant's arguments that the trial court clearly abused its discretion in sanctioning Appellant.\\nThe judgments of May 9 and July 19,1995, are reversed.\\nTOCI, P.J., and PATTERSON, J., concur.\\n. Rule 11(a) Signing of pleadings, Motions and Other Papers; Sanctions\\n. The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation____\\n\\u00a7 12-341.01 Recovery of Attorney's Fees\\nC. Reasonable attorney's fees shall be awarded by the court in any contested action upon clear and convincing evidence that the claim or defense constitutes harassment, is groundless and not made in good faith____\\n\\u00a7 12-349 Unjustified actions; attorney fees, expenses and double damages; exceptions; definition\\nA. Except as otherwise provided by and not inconsistent with another statute, in any civil action commenced or appealed in a court of record in this state, the court shall assess reasonable attorney fees, expenses and, at the court's discretion, double damages of not to exceed five thousand dollars against an attorney or party, including this state and political subdivisions of this state, if the attorney or party does any of the following:\\n1. Brings or defends a claim without substantial justification.\\n2. Brings or defends a claim solely or primarily for delay or harassment.\\n3. Unreasonably expands or delays the proceeding.\\n4. Engages in abuse of discovery.\\nF. In this section, 'without substantial justification' means that the claim or defense constitutes harassment, is groundless, and is not made in good faith.\\n\\u00a7 12-350 Determination of award; reasons; factors\\nIn awarding attorney fees pursuant to \\u00a7 12-349, the court shall set forth the specific reasons for the award and may include the following factors, as relevant, in its consideration:\\n1. The extent of any effort made to determine the validity of a claim before the claim was asserted.\\n2. The extent of any effort made after the commencement of an action to reduce the number of claims or defenses being asserted or to dismiss claims or defenses found not to be valid.\\n3. The availability of facts to assist a party in determining the validity of a claim or defense.\\n4. The relative financial positions of the parties involved.\\n5. Whether the action was prosecuted or defended, in whole or in part, in bad faith.\\n6. Whether issues of fact determinative of the validity of a party's claim or defense were reasonably in conflict.\\n7. The extent to which the party prevailed with respect to the amount and number of claims in controversy.\\n8. The amount and conditions of any offer of judgment or settlement as related to the amount and conditions of the ultimate relief granted by the court.\"}"

arizona/1526690.json

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+"{\"id\": \"1526690\", \"name\": \"Inger GARCIA, surviving parent and personal representative of the Estate of Patrict J. Sedivy, Deceased, Plaintiff-Appellant, v. STATE of Arizona, a body politic; James G. Ricketts and Jane Doe Ricketts, husband and wife; Donald B. Wawrzaszek and Jane Doe Wawrzaszek, husband and wife; Alfred Grijalva and Jane Doe Grijalva, husband and wife, Defendants-Appellees\", \"name_abbreviation\": \"Garcia v. State\", \"decision_date\": \"1988-04-05\", \"docket_number\": \"No. 1 CA-CIV 9416\", \"first_page\": \"487\", \"last_page\": \"493\", \"citations\": \"159 Ariz. 487\", \"volume\": \"159\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T19:37:16.249398+00:00\", \"provenance\": \"CAP\", \"judges\": \"FROEB, P.J., and MATHESON, J. Pro Tem., concur.\", \"parties\": \"Inger GARCIA, surviving parent and personal representative of the Estate of Patrict J. Sedivy, Deceased, Plaintiff-Appellant, v. STATE of Arizona, a body politic; James G. Ricketts and Jane Doe Ricketts, husband and wife; Donald B. Wawrzaszek and Jane Doe Wawrzaszek, husband and wife; Alfred Grijalva and Jane Doe Grijalva, husband and wife, Defendants-Appellees.\", \"head_matter\": \"768 P.2d 649\\nInger GARCIA, surviving parent and personal representative of the Estate of Patrict J. Sedivy, Deceased, Plaintiff-Appellant, v. STATE of Arizona, a body politic; James G. Ricketts and Jane Doe Ricketts, husband and wife; Donald B. Wawrzaszek and Jane Doe Wawrzaszek, husband and wife; Alfred Grijalva and Jane Doe Grijalva, husband and wife, Defendants-Appellees.\\nNo. 1 CA-CIV 9416.\\nCourt of Appeals of Arizona, Division 1, Department D.\\nApril 5, 1988.\\nReview Dismissed March 16, 1989.\\nHaralson, Kinerk & Morey, P.C. by Dale Haralson, Denneen L. Peterson, Gregory G. Walsey, Tucson, for plaintiff-appellant.\\nRobert K. Corbin, Atty. Gen. by James R. Rummage, Judith Abramsohn, Asst. At-tys. Gen., Phoenix, for defendants-appel-lees.\", \"word_count\": \"4046\", \"char_count\": \"23914\", \"text\": \"OPINION\\nCONTRERAS, Judge.\\nThis is an appeal from the trial court's order dismissing Count II of appellant's complaint in favor of appellee (State of Arizona). Count II was a claim for violation of civil rights brought pursuant to 42 U.S.C. \\u00a7 1983. Section 1983 authorizes the maintenance of a legal action against every \\\"person\\\" who, under color of law, deprives another of any rights, privileges, or immunities secured by the Constitution and federal laws. In its motion to dismiss, the state argued that it could not be sued under 42 U.S.C. \\u00a7 1983 because it is not a \\\"person\\\" within the meaning of that federal statute. The trial court granted the state's motion on .the basis that in St. Mary's Hospital and Health Center v. State, 150 Ariz. 8, 11, 721 P.2d 666, 669 (App.1986) Division Two of this court held that a state is not a \\\"person\\\" within the meaning of \\u00a7 1983. We find ourselves in agreement with Division Two's conclusion and hold that a state is not a \\\"person\\\" within the meaning of 42 U.S.C. \\u00a7 1983.\\nAppellant, Inger Garcia, as the surviving parent and personal representative of the estate of Patrick J. Sedivy, filed a civil action seeking damages for the wrongful death of her son. She named the State of Arizona and various officials or employees of the Arizona State Prison and their wives as defendants, and alleged the following in her complaint: (1) Patrick J. Sedivy was incarcerated in the Arizona State Prison in Florence, Arizona beginning in 1981; (2) after his incarceration, Sedivy began to exhibit extreme psychotic behavior, including unsuccessful suicide attempts; (3) the defendants failed or refused (a) to provide medical treatment for Sedivy's mental illness, (b) to adequately supervise him, (c) to formulate and implement adequate standards for the care and treatment of prisoners, and (d) to protect him from assailants during his incarceration; and (4) as a result, Sedivy either set himself on fire or was set on fire by an unknown person at the prison on August 28, 1984, and, on August 29, 1984, died from the injuries he sustained.\\nAppellant's complaint listed two distinct and separate causes of action against the various defendants. Count I was a claim for common-law negligence. Count II was a claim for violation of civil rights under 42 U.S.C. \\u00a7 1983 for which attorney's fees are authorized to a successful litigant under 42 U.S.C. \\u00a7 1988. In this appeal, we are faced with and address only the propriety of the trial court's order dismissing Count II as against appellee State of Arizona on the basis that a state is not a person within the meaning of \\u00a7 1983.\\nAppellant contends that the St. Mary's decision, relied on by the trial court, in turn relied on authorities that either do not support the proposition or are of questionable validity. She points out that Challenge, Inc. v. State ex rel. Corbin, 138 Ariz. 200, 673 P.2d 944 (App.1983), a case decided by this division prior to the St. Mary's decision and cited in St. Mary's, discussed whether a state is a \\\"person\\\" within the meaning of 42 U.S.C. \\u00a7 1983, but left that issue undecided. In Challenge we noted that the parties were in disagreement whether the United States Supreme Court in Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) had held that a state is not a \\\"person\\\" under \\u00a7 1983 or had merely held that \\u00a7 1983 does not abrogate a state's eleventh amendment immunity from suits in federal courts. In Challenge we acknowledge that the Supreme Court has not resolved how Quern should be interpreted and that there is respectable supporting authority on both sides. Because another issue in Challenge was dispositive, we then expressly declined to resolve the issue of whether the state was a \\\"person\\\" under \\u00a7 1983, referring to it as a \\\"knotty question of federal law.\\\" Challenge, 138 Ariz. at 202-03, 673 P.2d at 947.\\nWe are unable to determine whether Division Two was presented with the full range of arguments on this issue when it held in St. Mary's that the state is not a \\\"person\\\" under \\u00a7 1983. The rationale for reaching this conclusion is not stated in the opinion. Instead, the court cited Challenge and Quern, supra to support its holding. For these reasons we find it appropriate at this time to discuss and scrutinize the divergent lines of authority on this issue to determine which is the better reasoned.\\nThe issue of whether a state or any of its agencies is a \\\"person\\\" within the meaning of \\u00a7 1983 has been debated extensively in both state and federal courts. This issue has spawned divergent opinions in the courts because the United States Supreme Court has never expressly ruled on it, but instead has ruled on related issues. In doing so, the Supreme Court has included language in its opinions that other courts have interpreted in different ways to reach differing results on the issue of whether the state is a \\\"person\\\" within \\u00a7 1983. The two major United States Supreme Court cases that other courts have focused upon in reaching their determinations of this issue are Monell v. New York City Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and Quern, supra.\\nIn Monell, the Court was asked by petitioners to find that the City of New York and its agencies were subject to suit in federal court under \\u00a7 1983. The eleventh amendment to the United States Constitution, which grants states immunity from suits brought in federal courts by their own citizens and citizens of other states, presented no barrier to suit since it was already well established that local governmental units do not occupy the same position as the states for purposes of the eleventh amendment. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). The obstacle to suit was whether the city and its agencies constitute \\\"persons\\\" within the meaning of \\u00a7 1983. The Supreme Court had previously ruled in Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492, 505 (1961) that \\\"Congress did not undertake to bring municipal corporations within the ambit of [\\u00a7 1983].\\\" In Monell, however, after extensively analyzing the legislative history of the Civil Rights Act of 1871, from which \\u00a7 1983 was derived, the Court, in an opinion written by Justice Brennan, concluded that Congress did intend municipalities and other local governmental units to be included among the \\\"persons\\\" to whom \\u00a7 1983 applies and overruled that portion of Monroe v. Pape, that held to the contrary.\\nThe Monell Court expressly stated in a footnote to the opinion that its holding was \\\"limited to local government units which are not considered part of the State for Eleventh Amendment purposes.\\\" Monell, 436 U.S. at 690, n. 54, 98 S.Ct. at 2035, n. 54, 56 L.Ed.2d at 635, n. 54. Even so, some courts, reasoning that it would be inconsistent to regard municipalities and states as different under \\u00a7 1983, have held that states are \\\"persons\\\" based on Monell and therefore are subject to suit except to the extent of their eleventh amendment immunity. See, e.g., Atchison v. Nelson, 460 F.Supp. 1102, 1107 (D.Wyo.1978). Other courts have held that states are not \\\"persons\\\" under \\u00a7 1983 based on the fact that Monell restricted its holding to municipalities. See, e.g., Clark v. Michigan, 498 F.Supp. 159, 161 (E.D.Mich.1980).\\nThe Supreme Court's decision in Quern, handed down the year after Monell, added more fuel to the already flaming debate over whether Congress intended states to be \\\"persons\\\" amenable to suit under \\u00a7 1983. Quern was a sequel to the case of Edelman v. Jordan, supra. The Edelman case had been a class action brought pursuant to \\u00a7 1983 against state officials who were administering joint federal-state programs of aid. The district court had not only granted declaratory and injunctive relief to the class, but also had made a retroactive award of benefits requiring payment of funds from the state treasury. The court of appeals had affirmed the district court's judgment in Jordan v. Weaver, 472 F.2d 985 (7th Cir.1973). The Supreme Court found the award of prospective relief to be appropriate pursuant to Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), in which the Supreme Court held that the eleventh amendment does not bar an action in the federal courts brought to enjoin a state official from enforcing a statute claiming to violate the United States Constitution. Edelman, 415 U.S. at 663-64, 94 S.Ct. at 1356, 39 L.Ed.2d at 673. However, the court struck down the retroactive award as being in violation of the eleventh amendment, holding:\\nBut it has not heretofore been suggested that \\u00a7 1983 was intended to create a waiver of a State's Eleventh Amendment immunity merely because an action could be brought under that section against state officers, rather than against the State itself. Though a \\u00a7 1983 action may be instituted by public aid recipients such as respondent, a federal court's remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief, Ex parte Young, supra, and may not include a retroactive award which requires the payment of funds from the state treasury, Ford Motor Co. v. Department of Treasury, [323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945)], supra.\\nEdelman, 415 U.S. at 675-77, 94 S.Ct. at 1362, 39 L.Ed.2d at 680-81.\\nIn Quern, the respondents, in arguing on behalf of the class, suggested to the Court that its decision in Edelman had been eviscerated by later decisions such as Monell. The Court disagreed, pointing out that its holding in Monell had been limited to local government units, which are not considered part of the state for eleventh amendment purposes, and stating that \\\"our Eleventh Amendment decisions subsequent to Edel-man and to Monell have cast no doubt on our holding in Edelman.\\\" Quern, 440 U.S. at 338, 99 S.Ct. at 1144, 59 L.Ed.2d at 365.\\nThe Quern decision contains a vigorous debate between Justice Rehnquist, writing for the seven member majority, and Justice Brennan, concurring separately, over whether the Congress that passed the Civil Rights Act of 1871 intended to subject the states to liability under 42 U.S.C. \\u00a7 1983. Justice Brennan pointed out that the court in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), held that Congress, in determining what is appropriate legislation for the purposes of enforcing the provisions of the fourteenth amendment, may abrogate the eleventh amendment immunity and allow private suits against states. Quern, 440 U.S. at 350, 99 S.Ct. at 1150, 59 L.Ed.2d at 373. Brennan then quoted from much of the same legislative history that had been examined in Mo-nell. He expressed his opinion that if the issue of whether Congress had intended the state to be a \\\"person\\\" within \\u00a7 1983 were to be decided, states should be \\\"persons\\\" for the same reason that municipali ties were found to be \\\"persons\\\" in Monell. Quern, 440 U.S. at 357, 99 S.Ct. at 1154, 59 L.Ed.2d at 377.\\nJustice Rehnquist, however, found the sources cited by Justice Brennan to be \\\"slender 'evidence' that Congress intended by the general language of \\u00a7 1983 to override the traditional sovereign immunity of the states.\\\" Quern, 440 U.S. at 341, 99 S.Ct. at 1145, 59 L.Ed.2d at 367. Among the many remarks made by Justice Rehnquist on this subject, he stated:\\n[Njeither logic, the circumstances Surrounding the adoption of the Fourteenth Amendment, nor the legislative history of the 1871 Act compels, or even warrants, a leap from this proposition to the conclusion that Congress intended by the general language of the Act to overturn the constitutionally guaranteed immunity of the several States.\\nId. at 342, 99 S.Ct. at 1146, 59 L.Ed.2d at 367 (footnote omitted). Justice Rehnquist also remarked that in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), the \\\"Court rejected a similar attempt to interpret the word 'person' in \\u00a7 1983 as a withdrawal of the historic immunity of state legislators.\\\" Quern, 440 U.S. at 342-43, 99 S.Ct. at 1146, 59 L.Ed.2d at 368. Rehnquist went on to couch his holding in Quern in terms of the eleventh amendment. He held that Congress had not intended for \\u00a7 1983 to abrogate eleventh amendment immunity. His holding contains no reference to whether Congress also did not intend a state to be a \\\"person\\\" pursuant to \\u00a7 1983. Id. at 333-45, 99 S.Ct. at 1141-47, 59 L.Ed.2d at 362-69.\\nJustice Brennan, however, indicated that the majority had by its decision concluded, although in dicta, that a state is not a \\\"person\\\" for purposes of \\u00a7 1983. Id. at 350-66, 99 S.Ct. at 1150-58, 59 L.Ed.2d at 372-82. He reasoned that if Congress had intended the states to be \\\"persons\\\" for \\u00a7 1983 purposes, the states' immunity under the eleventh amendment would be abrogated by this statute. Id.\\nSince the eleventh amendment protects states from suits only in federal courts and only if they have not consented to suit, the issue of whether the state is a \\\"person\\\" within \\u00a7 1983 becomes relevant when suit is brought in state court, such as we find in the case before us, or when the state has consented to suit in the federal courts. The clear majority of jurisdictions that have considered the issue have held that a state is not a \\\"person\\\" within \\u00a7 1983. Decisions from state courts, including Division Two of this court, holding with the majority include the following: St. Mary's Hospital and Health Center v. State, supra; State v. Green, 633 P.2d 1381 (Alaska 1981); Pyne v. Meese, 172 Cal.App.3d 392, 218 Cal.Rptr. 87 (1985); Burke v. Morgan, C.A. No. 85C-JA-95 (Del.Super.Ct. Jan. 22, 1987) [Available on WESTLAW, 1987 WL 6453]; Arney v. Dep't of Natural Resources, 448 So.2d 1041, 1045 (Fla.App. 1 Dist.1983); Merritt for Merritt v. State, 108 Idaho 20, 696 P.2d 871 (1985); Woodbridge v. Worcester State Hosp., 384 Mass. 38, 423 N.E.2d 782 (1981); Will v. Dep't of Civil Serv., 145 Mich.App. 214, 377 N.W.2d 826 (1985); Bird v. Dep't of Public Safety, 375 N.W.2d 36 (Minn.App.1985); Shaw v. City of St. Louis, 664 S.W.2d 572 (Mo.App. 1983), cert. denied, 469 U.S. 849, 105 S.Ct. 165, 83 L.Ed.2d 101; Marx v. Cuomo, 128 A.D.2d 965, 513 N.Y.S.2d 285 (Sup.Ct.App. Div.1987); Edgar v. State, 92 Wash.2d 217, 595 P.2d 534 (1979), cert. denied, 444 U.S. 1077, 100 S.Ct. 1026, 62 L.Ed.2d 760; Boldt v. State, 101 Wis.2d 566, 305 N.W.2d 133 (1981), cert. denied, 454 U.S. 973, 102 S.Ct. 524, 70 L.Ed.2d 393.\\nIn our opinion many of the cases that hold a state is not a person pursuant to \\u00a7 1983 are of little analytical value because they summarily conclude that the state is not a person without providing any rationale or by merely stating that Quern so holds. It is unclear whether some courts have distinguished between the eleventh \\u2022 amendment immunity issue and the issue of whether the state is a \\\"person.\\\"\\nSeveral of the cases, however, show a more reasoned approach in reaching this same conclusion. They acknowledge that Quern does not expressly hold that the state is not a person but conclude that Quern should be interpreted as so holding or that, at least without further clarification from the Supreme Court, a state's liability for damages under \\u00a7 1983 should not depend on whether suit is brought in state or federal court. See, e.g., State v. Green, 633 P.2d at 1382; Burke v. Morgan, No. 85C-JA-95 (Del.C.A. Jan. 22, 1987) (slip opinion); Merritt for Merritt v. State, 696 P.2d at 877; Woodbridge v. Worcester State Hospital, 384 Mass. at 44-5, n. 7, 423 N.E.2d at 786, n. 7; Will v. Department of Civil Service, 145 Mich. App. at 224, 377 N.W.2d at 830-31; Edgar v. State, 92 Wash.2d at 221, 595 P.2d at 537.\\nAfter studying the majority opinion and Justice Brennan's concurring opinion in Quern, we too conclude that Quern should be interpreted as impliedly holding that states are not \\\"persons\\\" within \\u00a7 1983 for the following reason. It is well settled that Congress has the authority to abrogate eleventh amendment immunity when it finds this to be necessary to enforce the fourteenth amendment. Fitzpatrick, 427 U.S. at 456, 96 S.Ct. at 2671, 49 L.Ed.2d at 621. In Monell, the Supreme Court examined the legislative history upon which \\u00a7 1983 was based, and concluded that Congress intended municipalities to be \\\"persons\\\" within \\u00a7 1983. The majority in Quern looked at that same legislative history and found nothing to indicate that Congress intended to abrogate eleventh amendment immunity of the states. If the legislative history showed that Congress intended states to be \\\"persons,\\\" this would provide strong evidence that Congress also intended to abrogate eleventh amendment immunity. Yet, rather than find strong evidence, the Quern majority expressly found the evidence shown in the legislative history to be very weak in establishing congressional intent to abrogate eleventh amendment immunity. In the absence of clarification or a definitive pronouncement from the Supreme Court, we must conclude from this, as Justice Brennan did, that the majority in Quern impliedly also held that states are not \\\"persons\\\" within \\u00a7 1983.\\nWe have also examined federal cases holding that the state is a \\\"person\\\" within \\u00a7 1983. We find the reasoning of these cases to be flawed. The appellant relies heavily on Marrapese v. Rhode Island, 500 F.Supp. 1207 (D.R.I.1980), which has often been followed by other courts that have reached the conclusion that the state is a \\\"person\\\" within \\u00a7 1983. See, e.g., Della Grotta v. Rhode Island, 781 F.2d 343 (1st Cir.1986); Irwin v. Calhoun, 522 F.Supp. 576 (D.Mass.1981). The court in Mar-rapese began by reasoning that since the majority in Quern did not expressly state that the term \\\"person\\\" did not include states, it left the question open. It then determined that for the same reasons the Court in Monell found, from legislative history, that municipalities were \\\"persons,\\\" states were also \\\"persons\\\" within \\u00a7 1983. Marrapese, 500 F.Supp. at 1210-12. We reject this approach since, in our opinion, it fails to take into proper account the debate in Quern between Justices Rehnquist and Brennan over the meaning and significance of this legislative history.\\nAppellant also relies on Harris v. Arizona Board of Regents, 528 F.Supp. 987 (D.Ariz.1981). Harris rejected any interpretation of Quern as holding that states and state agencies are not \\u00a7 1983 \\\"persons,\\\" pointing out that the majority opinion in Quern states \\\"that its decision did not 'render \\u00a7 1983 meaningless insofar as States are concerned. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).' \\\" Harris, 528 F.Supp. at 992, citing Quern, 440 U.S. at 345, 99 S.Ct. at 1147, 59 L.Ed.2d at 369. The Harris court concluded that \\\"the plain inference to be drawn from the Court's statement in reference to Ex parte Young is that States and state agencies are not removed from the class of \\u00a7 1983 'persons' simply because they may be able to raise an Eleventh Amendment defense.\\\" Harris, 528 F.Supp. at 992. Having reached this conclusion, the Harris court found states to be \\\"persons,\\\" believing Monell would lead to this conclusion. Harris, 528 F.Supp. at 992.\\nWe believe the Harris court improperly interpreted the reference in Quern to the fact that the Quern opinion would not render \\u00a7 1983 meaningless as to the states. This statement and the reference to Ex parte Young obviously point out that it is still possible to obtain prospective relief aimed at the state through suit against state officials carrying out state policies and laws. However, we do not find it reasonable to interpret this language as leaving open the possibility that states are \\\"persons\\\" within \\u00a7 1983 so that they would be liable in damages. The statement simply does not touch on this issue.\\nAppellant also points out that in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court considered a case in which a \\u00a7 1983 suit had been brought against a state. It does not appear, though, that any issue was raised contesting whether the state was a \\\"person\\\" within \\u00a7 1983. Therefore, this case provides no authority on that particular issue.\\nWe have found that a few state courts, in addition to the federal decisions previously discussed, have concluded that states are \\\"persons\\\" within \\u00a7 1983. Uberoi v. Univ. of Colorado, 713 P.2d 894 (Colo. 1986); Stanton v. Godfrey, 415 N.E.2d 103 (Ind.App.1981); Gumbhir v. Kansas State Bd. of Pharmacy, 231 Kan. 507, 646 P.2d 1078 (1982) cert. denied, 459 U.S. 1103, 103 S.Ct. 724, 74 L.Ed.2d 950; Ramah Navajo School Bd. v. Bureau of Revenue, 104 N.M. 302, 720 P.2d 1243 (App.1986), cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373. Our review discloses that these cases either ignore Quern and reach their conclusions based on Monell or find the state to be a \\\"person\\\" solely where prospective injunctive relief is sought, which is not a consideration in the case before us. We find nothing in these cases to dissuade us from concluding that Quern should be interpreted as holding that states are not \\\"persons\\\" within \\u00a7 1983.\\nWe affirm the decision of the trial court dismissing the claim against the State of Arizona brought pursuant to 42 U.S.C. \\u00a7 1983. In so doing, we expressly hold that a state is not a \\\"person\\\" within the meaning of 42 U.S.C. .\\u00a7 1983.\\nFROEB, P.J., and MATHESON, J. Pro Tem., concur.\\nNote-. The Honorable ALAN A. MATHESON, Judge Pro Tempore, has been authorized to participate in this matter by the Chief Justice of the Arizona Supreme Court, pursuant to Ariz. Const. art. VI, \\u00a7 3 and A.R.S. \\u00a7 12-145 and 12-147.\\n. 42 U.S.C. \\u00a7 1983 reads in pertinent part:\\nEvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.\\n. The eleventh amendment by its terms does not bar suits against a state by its own citizens, but the United States Supreme Court has consistently held that an unconsenting state is immune from suits brought in federal courts by her own citizens as well as those by citizens of another state. See, e.g., Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).\\n. Other panels of the Michigan appellate court have taken a different approach from that taken in Will, but have reached the same conclusion that a cause of action against the state had not been stated. These panels found that states were \\\"persons\\\" within \\u00a7 1983 but that Congress did not intend to abrogate a state's sovereign immunity against its will by permitting \\u00a7 1983 suits in state courts while barring them in federal courts. See Lowery v. Dep't of Corrections, 146 Mich.App. 342, 380 N.W.2d 99 (1985); Kar-chefske v. Dep't of Mental Health, 143 Mich.App. 1, 371 N.W.2d 876 (1985).\"}"

arizona/1528619.json

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+"{\"id\": \"1528619\", \"name\": \"Alfred LANDEROS, a single man, Plaintiff/Appellant, v. The CITY OF TUCSON, a municipal corporation; the Tucson Police Department; and Detective Joe Godoy, an officer of the Tucson Police Department, Defendants/Appellees\", \"name_abbreviation\": \"Landeros v. City of Tucson\", \"decision_date\": \"1992-02-20\", \"docket_number\": \"No. 2 CA-CV 91-0212\", \"first_page\": \"474\", \"last_page\": \"476\", \"citations\": \"171 Ariz. 474\", \"volume\": \"171\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:44:24.104783+00:00\", \"provenance\": \"CAP\", \"judges\": \"LIVERMORE, C.J., and LACAGNINA, P.J., concur.\", \"parties\": \"Alfred LANDEROS, a single man, Plaintiff/Appellant, v. The CITY OF TUCSON, a municipal corporation; the Tucson Police Department; and Detective Joe Godoy, an officer of the Tucson Police Department, Defendants/Appellees.\", \"head_matter\": \"831 P.2d 850\\nAlfred LANDEROS, a single man, Plaintiff/Appellant, v. The CITY OF TUCSON, a municipal corporation; the Tucson Police Department; and Detective Joe Godoy, an officer of the Tucson Police Department, Defendants/Appellees.\\nNo. 2 CA-CV 91-0212.\\nCourt of Appeals of Arizona, Division 2, Department A.\\nFeb. 20, 1992.\\nReview Denied July 7, 1992.\\nParrish & Vingelli by Richard Parrish and Peter A. Matiatos, Tucson, for plaintiff/appellant.\\nMesch, Clark & Rothschild, P.C. by Richard Davis and Craig C. Cameron, Tucson, for defendants/appellees.\", \"word_count\": \"771\", \"char_count\": \"4704\", \"text\": \"OPINION\\nHOWARD, Judge.\\nThis is an appeal from the granting of a motion for summary judgment in favor of appellees. We affirm.\\nOn August 27, 1989, Michael Landeros, appellant's cousin, and Victor Foley were shot and killed in an apartment in Tucson belonging to appellant. Immediately before the shootings, at least four people were inside the apartment: appellant, Michael, Louis J. Felix and Felix's girlfriend Mary Ann Machado. At approximately 10 p.m., just before appellant and Louis were about to \\\"do two papers of heroin,\\\" Foley and Ray Bryant arrived at appellant's apartment. Several weapons were discharged, which resulted in the deaths of Foley and Michael Landeros. Appellant admitted shooting Bryant after appellant chased the fleeing Bryant and took Bryant's gun away from him.\\nDetective Joe Godoy of the Tucson Police Department was assigned to the case as the lead detective. During the investigation, Fred Gust at the Adobe Mountain School contacted Godoy and informed him that a juvenile in custody at the Adobe Mountain facility had information about the shooting. Godoy determined from Gust that the juvenile was not at the Adobe Mountain School when the shooting took place and then Godoy interviewed the juvenile. The juvenile stated that he was present in the apartment at the time of the shooting. He described the apartment in detail and gave specific facts which indicated personal knowledge.\\nBased on the juvenile's information, Godoy and assistant county attorney Tom Zawada went to a grand jury and obtained an indictment against appellant. On April 27, 1990, appellant was arrested and placed in jail. It was later discovered that the juvenile was in custody at the Pima County Juvenile Detention Center at the time of the murders. The information that the juvenile gave Godoy and subsequently told the grand jury was not based on personal knowledge, but on hearsay. The charges against appellant were dismissed without prejudice and he was released from jail.\\nThis suit was subsequently filed by appellant charging that Godoy was negligent in failing to ascertain that the juvenile was in detention at the time he claimed to have been a witness to the shootings.\\nIt would appear that in Arizona the city may be liable if its police officers are grossly negligent in their investigation of a crime which results in an arrest. See Cullison v. City of Peoria, 120 Ariz. 165, 584 P.2d 1156 (1978) (police were not guilty of gross negligence in relying on the identification of an eyewitness). For appellant to raise sufficient material facts to rebut appellees' motion for summary judgment, he was required to show that Godoy's conduct \\\"was outside the duty and standard of care required of him in that [he] had reason to believe the information on which [he] based [the] arrest . was not trustworthy.\\\" 120 Ariz. at 167, 584 P.2d at 1158. As the court stated in Cullison,\\nwanton (or gross) negligence is highly potent, and when it is present it fairly proclaims itself in no uncertain terms. It is \\\"in the air,\\\" so to speak. It is flagrant and evinces a lawless and destructive spirit.\\nId. at 169, 584 P.2d at 1160. As in Cullison, no such showing was made here.\\nAs far as simple negligence is concerned, we believe the public interest mandates a rejection of such a tort. We agree with the following statement in Smith v. State, 324 N.W.2d 299, 301 (Iowa 1982):\\nThe public has a vital stake in the active investigation and prosecution of crime. Police officers and other investigative agents must make quick and important decisions as to the course an investigation shall take. Their judgment will not always be right; but to assure continued vigorous police work, those charged with that duty should not be liable for mere negligence.\\nEven if we were to hold that Arizona would recognize simple negligence in the investigation of a crime as a tort, appellant has offered no evidence which shows that Godoy had reason to believe that the juvenile was not trustworthy. Since there was no showing of negligence on the part of Godoy, a claim of negligence will not lie.\\nAffirmed.\\nLIVERMORE, C.J., and LACAGNINA, P.J., concur.\"}"

arizona/1534234.json

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+"{\"id\": \"1534234\", \"name\": \"The STATE of Arizona, Appellee, v. Wyman HARNEY, Appellant\", \"name_abbreviation\": \"State v. Harney\", \"decision_date\": \"1981-01-29\", \"docket_number\": \"No. 2 CA-CR 2049\", \"first_page\": \"355\", \"last_page\": \"357\", \"citations\": \"128 Ariz. 355\", \"volume\": \"128\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T21:46:02.416547+00:00\", \"provenance\": \"CAP\", \"judges\": \"HOWARD and BIRDSALL, JJ., concur.\", \"parties\": \"The STATE of Arizona, Appellee, v. Wyman HARNEY, Appellant.\", \"head_matter\": \"625 P.2d 944\\nThe STATE of Arizona, Appellee, v. Wyman HARNEY, Appellant.\\nNo. 2 CA-CR 2049.\\nCourt of Appeals of Arizona, Division 2.\\nJan. 29, 1981.\\nRobert K. Corbin, Atty. Gen. by William J. Schafer, III, and Jack Roberts, Asst. Attys. Gen., Phoenix, for appellee.\\nRobert Duber, II, Globe, for appellant.\", \"word_count\": \"1081\", \"char_count\": \"6777\", \"text\": \"OPINION\\nHATHAWAY, Chief Judge.\\nDefendant was tried to a jury and found not guilty of aggravated assault and guilty of resisting arrest. He was sentenced to three years' probation. One term of probation was that defendant serve 12 months \\\"flat time\\\" in jail without credit for pretrial incarceration.\\nThe questions raised on appeal are:\\n1. Does the evidence of defendant's intoxication preclude the finding that he acted \\\"intentionally\\\" as required by A.R.S. Sec. 13-2508?\\n2. Does the evidence show the defendant resisted arrest in violation of A.R.S. Sec. 13-2508?\\n3. Where the punishment imposed upon the defendant by probation effectively imposes a greater burden than imprisonment under a sentence, has he been denied due process of law and is the punishment excessive?\\nAround noon on December 29, 1979, defendant entered a Circle K market in Globe. The clerks observed that he appeared to be drunk and wandered aimlessly about the premises, mumbling and causing a disturbance. Globe police officer Phelan responded to a call for assistance. Phelan, a uniformed officer who had some months previously been kicked by the defendant during a similar encounter, approached defendant and said, \\\"Mr. Harney, let's go outside.\\\" Defendant threw his hat on the floor, assumed a typical boxer stance, and began jabbing at Officer Phelan. Defendant was told, \\\"Mr. Harney, put your hat on, let's go outside.\\\" Defendant continued in his sparring stance and was told, \\\"You got a choice. You either go outside on your own free will or you're going to go to jail.\\\" Defendant continued his combative posture and refused to leave. The officer retreated to a position near the door and ordered defendant out the door. Defendant then walked out the door and stopped outside, maintaining the fighting stance and preventing Phelan from going out. Officer Phelan went out another door to his car and radioed for assistance. He then told defendant, \\\"Mr. Harney, I'm placing you under arrest.\\\" Defendant again removed his hat and resumed his boxing stance, and chanted incoherently, \\\"like a war chant or Indian chant.\\\" Phelan testified that he was unable to arrest defendant and feared physical injury if he pressed too close. When assistance arrived, Phelan and another officer forcibly took defendant, who continued to resist, into custody.\\nDefendant was convicted under A.R.S. Sec. 13-2508, which provided at the time of the offense:\\n\\\"A. A person commits resisting arrest by intentionally preventing a person reasonably known to him to be a peace officer, acting under color of such peace officer's official authority, from effecting an arrest by:\\n1. Using or threatening to use physical force against the peace officer . \\\"\\nINTOXICATION\\nDefendant contends that he could not have intentionally resisted arrest because his intoxication precluded intentional action. The question was properly before the jury. A.R.S. Sec. 13-503; State v. Lawrence, 123 Ariz. 301, 599 P.2d 754 (1979). Ample evidence supported the jury's conclusion that he acted intentionally. Immediately when Officer Phelan arrived, defendant apparently registered alarm and exclaimed, \\\"Oh no.\\\" He sparred and jabbed with sufficient ability that the police officer thought it wise to avoid a close encounter. Both officers stated that they did not believe defendant was drunk.\\nPREVENTING ARREST\\nThe defense contends that Officer Phelan was not deprived of power to arrest, nor kept from arresting defendant, arguing that under Arizona law an arrest is effected whenever defendant's freedom of movement is restricted. We do not agree. The cases cited by the defendant, including State v. Green, 111 Ariz. 444, 532 P.2d 506 (1975), and State v. Vaughn, 12 Ariz.App. 442, 471 P.2d 744 (1970), deal with searches pursuant to a lawful arrest and are inapposite to the question of resistance sufficient to prevent an arrest. The evidence is uncontradicted that Officer Phelan was physically resisted by the defendant and was thus prevented from carrying out the arrest. That the defendant was subdued and did not escape when assistance arrived does not detract from the earlier episode. Phelan was not required to attempt unsuccessfully to subdue defendant singlehandedly to invoke the resisting arrest statute. He had previously dealt with the defendant under similar circumstances and testified that he did not believe that he could have arrested defendant without assistance. It appears that he exercised sound discretion in his handling of the situation and defendant is not entitled to claim that greater initial force should have been exercised. A.R.S. Sec. 13-3881(A) states: \\\"An arrest is made by an actual restraint of the person to be arrested, or by his submission to the custody of the person making the arrest.\\\" Actual restraint of the defendant was not attainable in the instant case without assistance and was prevented by the defendant's resistance.\\nEXCESSIVE INCARCERATION\\nDefendant was given three years' probation, 12 months of which were to be spent in the Gila County jail as \\\"flat time\\\" without credit for time served. The court also ordered the probation department to review the case and report at the end of six months from the date of sentencing, \\\"as to whether sentence should not be modified at that time.\\\"\\nDefendant complains that he was not given credit for 97 days pretrial imprisonment for a case (Cause No. 6789-A) which was dismissed before the present charge was brought. That cause was not before the court and was immaterial to sentencing in this case. In addition, defendant had been incarcerated for 87 days on the instant resisting arrest and aggravated assault charges before sentencing. He contends that had he been sentenced to imprisonment for the presumptive sentence for resisting arrest, 1.5 years, the trial court would have had to give him credit for his pretrial confinement in the county jail pursuant to A.R.S. Sec. 13-709(B). Consequently, he argues, he would have received various other credits which would have entitled him to an absolute release in less than the 12 months he must serve as a condition of probation. We do not agree. Defendant's calculations are based upon a faulty premise, that there were no aggravating circumstances which would merit the imposition of more than the presumptive sentence. The presentence report discloses pri- or criminal conduct which belies defendant's assumption.\\nJudgment and sentence are affirmed.\\nHOWARD and BIRDSALL, JJ., concur.\"}"

arizona/1539351.json

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+"{\"id\": \"1539351\", \"name\": \"ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Delaware corporation, Black Mesa Pipeline, Inc., a Delaware corporation; Mountain States Telephone and Telegraph Company, and El Paso Natural Gas Company, a Delaware corporation, Plaintiffs-Appellants, v. ARIZONA DEPARTMENT OF REVENUE; Coconino County and Williams Hospital District, a special taxing district, Defendants-Appellees\", \"name_abbreviation\": \"Atchison, Topeka & Santa Fe Railway Co. v. Arizona Department of Revenue\", \"decision_date\": \"1989-09-05\", \"docket_number\": \"No. 1 CA-CV 88-367\", \"first_page\": \"127\", \"last_page\": \"138\", \"citations\": \"162 Ariz. 127\", \"volume\": \"162\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T19:01:50.030260+00:00\", \"provenance\": \"CAP\", \"judges\": \"GRANT, P.J., and FIDEL, J., concur.\", \"parties\": \"ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Delaware corporation, Black Mesa Pipeline, Inc., a Delaware corporation; Mountain States Telephone and Telegraph Company, and El Paso Natural Gas Company, a Delaware corporation, Plaintiffs-Appellants, v. ARIZONA DEPARTMENT OF REVENUE; Coconino County and Williams Hospital District, a special taxing district, Defendants-Appellees.\", \"head_matter\": \"781 P.2d 605\\nATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Delaware corporation, Black Mesa Pipeline, Inc., a Delaware corporation; Mountain States Telephone and Telegraph Company, and El Paso Natural Gas Company, a Delaware corporation, Plaintiffs-Appellants, v. ARIZONA DEPARTMENT OF REVENUE; Coconino County and Williams Hospital District, a special taxing district, Defendants-Appellees.\\nNo. 1 CA-CV 88-367.\\nCourt of Appeals of Arizona, Division 1, Department D.\\nSept. 5, 1989.\\nReconsideration Denied Nov. 2, 1989.\\nFennemore Craig, P.C. by Paul J. Mooney and Ren R. Hayhurst, Phoenix, for appellants Atchison, Topeka & Santa Fe Ry. Co., Black Mesa Pipeline, Inc. and Mountain States Tel. & Tel. Co.\\nSnell & Wilmer by Stephen A. Thomas, Tucson, for appellant El Paso Natural Gas.\\nGust, Rosenfeld, and Henderson by Fred H. Rosenfeld and Joe R. Purcell, Phoenix, for appellee Williams Hosp. Dist.\\nJohn Verkamp, County Atty. by Terence C. Hance, Chief Deputy Atty., Flagstaff, for appellee Coconino County.\\nRobert K. Corbin, Atty. Gen. by Toni McClory and Michael G. Prost, Asst. Attys. Gen., Phoenix, for appellee Arizona Dept, of Revenue.\", \"word_count\": \"7093\", \"char_count\": \"43694\", \"text\": \"OPINION\\nCONTRERAS, Judge.\\nIn this civil appeal, this court considers the validity of a secondary property tax levied by the appellee Williams Hospital District pursuant to A.R.S. \\u00a7 48-1907(6). We conclude that because the district did not \\\"operate\\\" the hospital facility as required by \\u00a7 48-1907(6), the tax levied against the appellant real property owners was illegal. We therefore reverse the decision of the trial court upholding the validity of the tax and remand for further proceedings consistent with this opinion.\\nFACTS AND PROCEDURAL HISTORY\\nThe pertinent facts are not in dispute. In 1943, the Williams Hospital Board was incorporated to operate a health care facility in the Williams area. Construction of a hospital began in August 1948 and was financed with private funds and a $50,000 bond election. The hospital was dedicated on May 12, 1950.\\nThe hospital had financial problems from the outset. From 1950 through 1970, the hospital provided only acute care services. In 1970, the hospital converted sixteen beds to long-term care to increase occupancy and revenues. In 1972, however, the hospital ceased providing long-term care, and reconverted to acute care beds only. In 1972, the city of Williams, which had operated the hospital since 1950, attempted to lease the hospital to a Flagstaff physician to resolve its financial problems. No agreement was reached, and in April of 1973, the hospital was closed and not reopened until the following October.\\nIn early 1974, the Williams Hospital District (the district) was formed. At that time, the district incurred a bonded indebtedness of $500,000, including $250,000 to purchase the hospital from the city of Williams, and $250,000 to remodel it. In 1974, the total indebtedness was $887,700 including interest. The outstanding bonds require annual principal and interest payments of $49,000 through June of 1994.\\nFrom April 15, 1974, through August of 1986, the district leased the hospital to various organizations, but no lessee was able to operate it at a profit. On May 13, 1975, the city of Williams imposed a one percent sales tax to subsidize the hospital's operating costs and allow it to remain open. The city has supplemented its initial subsidy with additional funds at various times as needed. In 1979, the Northern Arizona Health Systems Agency investigated the hospital's financial condition and advised the city that the hospital was losing money despite an annual subsidy which exceeded $150,000. In early 1986, the hospital stopped providing 24-hour service due to financial pressure.\\nOn July 1, 1986, Samaritan Health Services, Inc. (Samaritan), which is not a party to this litigation, entered into a management agreement with the Williams Hospital District. On July 3, 1986, the district proposed the levy of a secondary tax pursuant to A.R.S. \\u00a7 48-1907(6) in order to subsidize the hospital's operating expenses. The district's voters approved that tax on August 5, 1986. On August 29, 1986, the hospital again commenced to operate on a 24-hour basis. In fiscal year 1986-87, revenues collected from the secondary property tax provided about forty percent of the district's $150,000 budget.\\nThe management agreement between Samaritan and the district provides that the district is to lease the hospital to Samaritan for the one-year period beginning July 1, 1986 for rent of $1 per year. The agreement provides for renewal for two additional one-year periods upon mutual agreement of the parties. It further provides that the district, Samaritan, and the city of Williams agree that their relationship is that of independent contractors rather than employees, principals, agents or joint venturers. The agreement provides in part:\\n3. MANAGEMENT OF THE WILLIAMS FACILITY. DISTRICT hereby retains SAMARITAN and SAMARITAN agrees to supervise, operate and manage the Williams facility subject to the terms and conditions set forth in this agreement. SAMARITAN shall be responsible for the operation and management of the Williams facility including the establishment and implementation of the facility's policies and standards affecting operation, services, maintenance, and pricing.\\n3.1 Management Fee. SAMARITAN shall be paid a management fee by DISTRICT for the supervision, operation and management of the Williams facility. This fee shall amount to forty thousand dollars ($40,000) per year. The fee shall be paid at a monthly rate of three thousand thirty-four dollars ($3,334) [sic] per month payable on the first of each month beginning on July 1, 1986. The management fee will be renegotiated on a yearly basis. DISTRICT and SAMARITAN further agree that all net profits will be allocated equally between DISTRICT and SAMARITAN during the calendar months such profit or revenue is obtained.\\nThe agreement further provides:\\n3.4 Employees. Effective July 1, 1986, DISTRICT shall cease any further relationship it has directly or indirectly with each non-physician employee of the Williams facility. SAMARITAN shall staff the Williams facility with qualified personnel of SAMARITAN'S sole choosing, at such level of compensation and benefits as may be negotiated between the parties. It is anticipated that SAMARITAN will rehire those past employees of the Williams facility at salaries and wage levels currently experienced. All employees hired by SAMARITAN will receive SAMARITAN benefit packages, modified as necessary to be consistent with the employees' past benefits. Every effort will be made to hire existing Williams facility personnel, although SAMARITAN reserves the right of final selection of personnel.\\n3.5 Medical Staff. Effective July 1, 1986, DISTRICT shall cease any further relationship it has directly or indirectly with each physician providing coverage for the Williams facility. SAMARITAN shall forthwith enter into such arrangements as it deems advisable with physicians to provide coverage for the Williams facility. SAMARITAN'S board of directors, in all instances, may, for good cause, limit or deny any physician, surgeon or dentist the privilege to practice in the Williams facility.\\nThe management agreement also requires Samaritan to indemnify the district for any claims or liabilities arising out of or connected with the use or operation of the hospital or the services provided by the employees of the hospital.\\nAppellants commenced two separate actions in October of 1987 to challenge the legality of the district's 1986 and 1987 secondary property taxes levied pursuant to A.R.S. \\u00a7 48-1907(6). Appellants also requested awards of attorney's fees against the appellee Arizona Department of Revenue under A.R.S. \\u00a7 12-348. The two actions were consolidated by stipulation of the parties. Appellants filed separate motions for summary judgment. The district opposed those motions and filed its own cross-motion for summary judgment. Co-conino County joined in the district's response to appellants' motions for summary judgment, but not in the district's cross-motion for summary judgment.\\nThe trial court denied appellants' motions for summary judgment, but granted the district's motion, although it failed to state its reasons for doing so. The trial court accordingly did not reach the question of whether appellants could recover their attorney's fees from the Department of Revenue under A.R.S. \\u00a7 12-348. This timely appeal followed entry of formal judgment in accordance with the trial court's ruling.\\nTHE PARTIES' CONTENTIONS\\nThe provisions of A.R.S. \\u00a7 48-1907, 48-1910, and 48-1911 are at the heart of this appeal. Section 48-1907 provides in pertinent part:\\nA hospital district may:\\n5. Provide for the operation and maintenance of a hospital or combined hospital and ambulance service owned by the district. If the hospital district provides for the operation of an ambulance service, ambulance services shall be provided to all areas within the district.\\n6. Impose a secondary property tax on all taxable property within the district for the purpose of funding the operation and maintenance of a hospital or combined hospital and ambulance service that is owned and operated by the district or to pay costs of an ambulance service contract entered into pursuant to this section. The amount of the levy necessary for the operation and maintenance of the ambulance service shall be separately stated in the levy. Prior to the initial imposition of such a tax a majority of the qualified electors voting in a regular or special election must approve such initial imposition. The continued imposition of such a tax must be approved by a majority of the qualified electors voting in a regular or special election at least every five years from the date of the initial imposition.\\nSection 48-1910 provides:\\nThe board of directors may purchase surgical instruments, hospital equipment, ambulance equipment and other property and supplies necessary for equipping a hospital or combined hospital and ambulance service, except that the board shall not purchase, rent or contract for the use of aircraft. The board may purchase real property, and erect or rent and equip buildings or rooms necessary for the hospital. The board of directors shall lease the hospital as provided by \\u00a7 48-1911, provided however that when any bonded indebtedness of the district has been paid the board of directors may lease the hospital and its equipment to any person or corporation for the purpose of conducting a health care facility upon such terms and conditions as the board of directors of the district deems to be beneficial to the hospital district.\\nSection 48-1911 provides:\\nA. A lease of the hospital and its equipment, executed by the board of directors of the district, shall:\\n1. Contain terms and provisions necessary to assure compliance by the district with the provisions of the federal act and any amendments thereto.\\n2. Extend for a term to be determined by the board, but not less than five nor more than ten years.\\n3. Be executed to a corporation not for pecuniary profit, duly organized under the laws of this state for the purpose of conducting a hospital.\\n4. Provide for a rental upon terms and in an amount which will provide a fair return to the district on its investment, be sufficient to meet the payments of principal and interest of bonds issued under this article, and provide amounts necessary to meet the expenses of the district.\\nB. If a lessee of the hospital and its equipment fails to make the payment of rental required by the lease, the board of directors of the district shall forthwith cancel the lease for such failure. If then unable to release the hospital and its equipment to a lessee under the provisions of this article at a rental qualified sufficient to meet the payments of principal and interest on any bonds issued by the district and to provide the amounts necessary to meet expenses of the district, the board shall, at public auction, offer to lease the hospital and its equipment to the highest responsible and qualified bidder for such term as the board prescribes, and shall lease the hospital and its equipment to the bidder who bids the highest rental for the prescribed period.\\nC. Notice of the auction shall be given in a newspaper as provided by \\u00a7 48-1902 at least once each week for four weeks immediately preceding the auction.\\nNoting that the Williams Hospital District has outstanding bonded indebtedness, appellants contend that under the third sentence of A.R.S. \\u00a7 48-1910, the district's board is required to lease the hospital in accordance with the terms of \\u00a7 48-1911(A). Appellants assert that the district's management agreement with Samaritan fails to comply with \\u00a7 48-1911(A) because it: 1) extends for a term of less than five years, and 2) does not require Samaritan to pay a rental sufficient to meet payments on the district's bonded indebtedness, meet the district's expenses, and provide a fair return to the district on its investment. Because the record establishes that the hospital has never been and cannot be leased in compliance with A.R.S. \\u00a7 48-1911(A) or (B), appellants argue that the hospital must be closed, and that the trial court erred in failing to so declare.\\nIn response, Williams Hospital District and Coconino County (hereinafter \\\"appel-lees\\\") urge that the third sentence of \\u00a7 48-1910 should be interpreted to mean that the district becomes free to lease the hospital outside the strictures of \\u00a7 48-1911(A) as soon as it has paid some portion of its total bonded indebtedness. Appellees note that by 1986, the district had made numerous payments toward its bonded indebtedness. They therefore argue that the district was not required to comply with A.R.S. \\u00a7 48-1911(A) in leasing the hospital to Samaritan. Appellees also urge that the auction procedure provided by subsection (B) of \\u00a7 48-1911 never applied in this case because the hospital was never previously leased under subsection (A) to a lessee who later defaulted on its rental payments.\\nThe third sentence of A.R.S. \\u00a7 48-1910 was added by Laws 1981, ch. 219, \\u00a7 1. In that same year, hospital districts were authorized for the first time to impose secondary property taxes \\\"for the purpose of funding the operation and maintenance of a hospital that is owned and operated by the district.\\\" Laws 1981, ch. 229. Both sides acknowledge that as of 1981, it was'clear under Roberts v. Spray, 71 Ariz. 60, 223 P.2d 808 (1950), that hospital districts had no statutory authority to operate hospitals and could only lease them as provided by the statutory provisions now in effect as A.R.S. \\u00a7 48-1911.\\nFrom this point the parties' positions diverge. Appellants contend that by adding to \\u00a7 48-1910 the language \\\"[t]he board of directors shall lease the hospital as provided by [\\u00a7 48-1911] .\\\" in 1981, the legislature must have intended to clarify and limit the scope of hospital districts' new power to impose secondary property taxes under its contemporaneous amendment of the predecessor to \\u00a7 48-1907(5) and (6). Appellants reason that a hospital district may impose a secondary property tax under A.R.S. \\u00a7 48-1907(6) to fund the operation and maintenance of its hospital only if the district has no outstanding bonded indebtedness and it is not required under \\u00a7 48-1910 to lease its hospital pursuant to \\u00a7 48-1911. Because the Williams Hospital District had outstanding bonded indebtedness, appellants argue that it therefore had no authority to impose a secondary tax under \\u00a7 48-1907(6).\\nAppellants argue alternatively that even without considering the effect of \\u00a7 48-1910, a district may impose a secondary property tax under \\u00a7 48-1907(6) only if it \\\"operates\\\" its hospital. Appellants contend that because it is Samaritan that \\\"operates\\\" the district's hospital, the district is without authority to impose a secondary property tax under \\u00a7 48-1907(6).\\nAppellees offer a radically different interpretation of the 1981 amendments to A.R.S. \\u00a7 48-1907(5) and (6) and 48-1910. They urge that the 1981 addition to \\u00a7 48-1910 of the language \\\"[t]he board of directors shall lease the hospital----\\\" was entirely superfluous in view of Roberts v. Spray, supra. They also contend that the 1981 amendments to the predecessors of \\u00a7 48-1907 and 48-1910 directly contradict one another, and must be construed to allow a hospital district to levy a secondary property tax under \\u00a7 48-1907(6) whenever there is no qualifying lessee available to lease the hospital in accordance with \\u00a7 48-1911 and the district's voters approve imposition of the tax.\\nConcerning the interpretation of A.R.S. \\u00a7 48-1907(6) standing alone, appellees note that Laws 1984, ch. 106, \\u00a7 1 amended the first sentence of that subsection to provide:\\nA hospital district may: . (6) Impose a secondary property tax on all taxable property within the district for the purpose of funding the operation and maintenance of a hospital or combined hospital and ambulance service that is owned and operated by the district or to pay costs of an ambulance service contract entered into pursuant to this section.\\n(Amendment indicated by underlining). Applying the \\\"rule of the last antecedent,\\\" appellees assert that this amendment eliminated the requirement that the \\\"hospital\\\" be \\\"owned and operated by the district,\\\" and made that requirement applicable only to a \\\"combined hospital and ambulance service,\\\" which the Williams Hospital District does not provide. Alternatively, appellees contend that if \\u00a7 48-1907(6) requires a hospital district to \\\"operate\\\" its hospital before it may impose a secondary property tax, Williams Hospital District is fully in compliance with that requirement. They urge that a hospital district can operate and maintain its hospital through an independent contractor as well as through employees or agents. Appellees assert that the management agreement between Samaritan and the district is not a true lease, and that under it Samaritan is strictly a managing agent for the true operator of the hospital, the district.\\nANALYSIS\\nA number of settled principles guide our interpretation of the applicable statutes in this case. We are bound to construe statutes \\\"liberally . to effect their objects and to promote justice.\\\" A.R.S. \\u00a7 1-211(B). See State Farm Auto. Ins. Co. v. Dressler, 153 Ariz. 527, 531, 738 P.2d 1134, 1138 (App.1987). The primary principle in statutory interpretation is to determine and give effect to the legislative intent behind the statute. To discover that intent, the appellate court may consider the context of the statute, the language used, the subject matter, the historical background, the effects and consequences, and the spirit and purpose of the law. Martin v. Martin, 156 Ariz. 452, 457, 752 P.2d 1038, 1043 (1988); Calvert v. Farmers Ins. Co. of Arizona, 144 Ariz. 291, 294, 697 P.2d 684, 687 (1985); Arizona Newspapers Ass'n, Inc. v. Superior Court, 143 Ariz. 560, 562, 694 P.2d 1174, 1176 (1985). Further, unless it is plain that a different meaning was intended, words used in a statute are to be accorded their usual and commonly understood meaning. Kilpa-trick v. Superior Court, 105 Ariz. 413, 421, 466 P.2d 18, 26 (1970). To determine and give effect to the legislative intent, a court may also consider the title or preamble of a statute. Sullivan v. Green Mfg. Co., 118 Ariz. 181, 185, 575 P.2d 811, 815 (App.1977).\\nStatutes that relate to the same person or thing and have similar purposes are referred to as being in pari materia. Statutes in pari materia must be read together, and all parts of the law on the same subject must be given effect if possible. Collins v. Stockwell, 137 Ariz. 416, 419, 671 P.2d 394, 397 (1983). This principle applies with peculiar force when the statutes in question are adopted at the same session of the legislature. State v. Jaastad, 43 Ariz. 458, 462, 32 P.2d 799, 803 (1934). While ambiguous tax statutes should be liberally construed in favor of the taxpayer and strictly construed against the state, that rule must give way if it produces a result contrary to the evident legislative intent. Department of Revenue v. Southern Union Gas Co., 119 Ariz. 512, 514, 582 P.2d 158, 160 (1978). Similarly, statutes are not to be interpreted woodenly and without regard for their aim, and if a literal interpretation of statutory language leads to an absurd result, the court has a duty to construe it, if possible, so that it is reasonable and workable. State Farm Auto. Ins. Co. v. Dressler, 153 Ariz. at 531, 738 P.2d at 1138. In interpreting statutes, it is the spirit of the law that prevails. Id.\\nWe first review the history leading up to the 1981 amendments to the predecessors of A.R.S. \\u00a7 48-1907(6) and 48-1910. As originally enacted by Laws 1949, ch. 27, \\u00a7 7, the remote predecessor of \\u00a7 48-1907 and 48-1911 provided:\\nThe board of directors shall lease the hospital and its equipment for such term or period as it shall deem reasonable but not less than five (5) nor more than ten (10) years to a corporation not for pecuniary profit duly organized under the laws of the state of Arizona for the purpose of conducting a hospital; provided that the rental to be received upon such lease shall be upon such terms as will provide a fair return to the district on its investment and shall be sufficient to meet the payments of principal and interest of any bonds issued under the terms of this act, and such amounts as may be necessary to meet the expenses of the district.\\nArizona Code Annotated \\u00a7 68-1408(e)(l).\\nIn 1956, A.C.A. \\u00a7 68-1408(a) through (d) were codified as A.R.S. \\u00a7 36-1237, the predecessor of current \\u00a7 48-1907. At the same time, subsection (e)(1) of A.C.A. \\u00a7 68-1408 was codified as A.R.S. \\u00a7 36-1241(A), (B) and (C) (now A.R.S. \\u00a7 48-1911(A), (B) and (C)), with one notable change: the language \\\"[t]he board of directors shall lease the hospital and its equipment .\\\" in the first clause became \\\"[a] lease of the hospital and its equipment, executed by the board of directors of the district, shall____\\\" A.R.S. \\u00a7 48-1911(A). In view of our supreme court's earlier decision in Roberts v. Spray, 71 Ariz. 60, 223 P.2d 808 (1950), the omission of the mandatory lease language from the 1956 codification had no substantive effect because Roberts had already established that a hospital district had no authority to do anything with its hospital other than lease it in compliance with the provisions of what is now A.R.S. \\u00a7 48-1911.\\nIn its 1981 session, our legislature made two significant amendments to A.R.S. \\u00a7 36-1237 and 36-1240, the immediate predecessors of current A.R.S. \\u00a7 48-1907 and 48-1910. Laws 1981, ch. 229 was entitled:\\nAn Act relating to public health and safety; prescribing powers of hospital dis trict; providing for imposition of a secondary property tax under certain conditions, and amending \\u00a7 36-1237 and 36-1244, Arizona Revised Statutes.\\nSection 1 of ch. 229 added a new subsection (5) to A.R.S. \\u00a7 36-1237, which provided:\\nA hospital district may:\\n5. Provide for the operation and maintenance of a hospital owned by the district, and impose a secondary property tax on all taxable property within the district for the purpose of funding the operation and maintenance of a hospital that is owned and operated by the district. Prior to the initial imposition of such a tax a majority of the qualified electors voting in a regular or special election must approve such initial imposition. The continued imposition of such a tax must be approved by a majority of the qualified electors voting in a regular or special election at least every five years from the date of the initial imposition.\\nAt the same time, the legislature enacted ch. 219, which was entitled:\\nAn Act relating to health; providing procedure for board of directors of hospital district to lease hospital; providing exception to procedure for leasing hospital; providing that hospital may be used as health care facility under certain conditions, and amending \\u00a7 36-1240, Arizona Revised Statutes.\\nSection 1 of ch. 219 amended \\u00a7 36-1240 to add the underlined language:\\nThe board of directors may purchase surgical instruments, hospital equipment and other property and supplies necessary for equipping a hospital. The board may purchase real property, and erect or rent and equip buildings or rooms necessary for the hospital. The board of directors shall lease the hospital as provided by \\u00a7 36-1241 [\\u00a7 48-1911] provided however that when any bonded indebtedness of the district has been paid the board of directors may lease the hospital and its equipment to any person or corporation for the purpose of conducting a health care facility upon such terms and conditions as the board of directors of the district deems to be beneficial to the hospital district.\\nChapters 229 and 219 of Laws 1981 were both passed by the Senate and the House on April 24, 1981 and approved by the Governor on April 27, 1981. 1981 Journal of the Senate, at 959, 976-77.\\nBased in part on the legislative history preceding the 1981 amendments, and in part on the language of the amendments themselves, we interpret the legislative intent behind those amendments differently from both appellants and appellees. As we have noted, prior to the 1981 amendments, a hospital district's only option was to lease its hospital as provided by the predecessor to A.R.S. \\u00a7 48-1911 because, under Roberts v. Spray, a hospital district could not operate its own hospital. Then, in 1981, through Laws 1981, ch. 229, the Arizona Legislature for the first time gave hospital districts statutory authority to operate their own hospitals and impose secondary property taxes to fund their operation and maintenance. Concurrently, through Laws 1981, ch. 219, the Arizona Legislature also added the third sentence of current A.R.S. \\u00a7 48-1910, which appellants now argue imposes on hospital districts a mandatory obligation to lease their hospitals in accordance with A.R.S. \\u00a7 48-1911 if they have outstanding bonded indebtedness.\\nDespite the arguably absolute language of that amendment (\\\"[t]he board of directors shall lease the hospital as provided by [\\u00a7 48-1911], provided however . \\\"), we think it highly unlikely that the legislature intended to impose a mandatory leasing requirement on hospital districts with bonded indebtedness at the same time it authorized all hospital districts, in unqualified terms, to operate their own hospitals and impose secondary property taxes for their support. We think it far more likely that the 1981 addition of the third sentence of A.R.S. \\u00a7 48-1910 was instead intended to serve a more limited function.\\nWe note that from the very beginning, hospital districts were granted the power to \\\"[p]urchase, receive, have, take, hold, lease, use and enjoy property of every kind and description within the limits of the district, and control, dispose of, convey, encumber and create leasehold interests in such property for the benefit of the district.\\\" A.R.S. \\u00a7 48-1907(3) (emphasis added). As previously noted, prior to the 1981 amendments, no hospital district, whether or not it had outstanding bonded indebtedness, could do anything with its hospital other than lease it according to the prescribed conditions of A.R.S. \\u00a7 48-1911 and its predecessors. Against that background, and in view of the contemporaneous amendment to \\u00a7 48-1907, we believe that the purpose of the 1981 amendment to \\u00a7 48-1910 was not to reimpose an overriding mandatory leasing requirement on hospital districts with bonded indebtedness, but rather, to free hospital districts that had no bonded indebtedness from the mandatory provisions to which \\u00a7 48-1911 and Roberts v. Spray formerly subjected any hospital district's lease.\\nThe legislature appears to have accomplished this purpose in two stages. First, it stated that if a hospital district with bonded indebtedness chose to exercise its authority under \\u00a7 48-1907(3) to lease its hospital instead of its new authority under \\u00a7 48-1907(5) and (6) to operate the hospital on its own, then \\\"[a] lease of the hospital and its equipment\\\" would still have to comply with A.R.S. \\u00a7 48-1911, as under pream-endment law. Second, in the proviso to the 1981 language amending \\u00a7 48-1910, the legislature set forth the core provision of the amendment: if a hospital district had no bonded indebtedness, it was now empowered to lease its hospital without regard to the strictures of \\u00a7 48-1911, and could include in the lease any terms its board deemed beneficial to the district.\\nA number of considerations support the foregoing interpretation of the seemingly contradictory 1981 amendments to \\u00a7 48-1907 and 48-1910. As we have noted, on the same day it added the language in question to \\u00a7 48-1910, the legislature added unqualified language that allowed hospital districts to operate their own hospitals for the first time. A.R.S. \\u00a7 48-1907(5) and (6). The fact that these amendments were added on the same day, strongly suggests that the legislature intended to grant this authority to hospital districts as a new and independent alternative to their formerly exclusive authority to lease their hospitals. In addition, the title to Laws 1981, ch. 219, which amended \\u00a7 48-1910, described the function of the amending language as \\\"providing procedure for board of directors of hospital district to lease hospital; providing exception to procedure for leasing hospital;\\\" (emphasis added). This description plainly does not suggest an intention to impose a mandatory leasing requirement, and instead signals an intent merely to regulate the manner in which a district may exercise its leasing authority under \\u00a7 48-1907(3), assuming it chooses to do so at all.\\nFurther, \\u00a7 48-1907, as amended in 1981, does not condition the exercise of a hospital district's new authority to operate its hospital, and levy a secondary property tax for that purpose, on the district's freedom from bonded indebtedness. It conditions that authority only on initial approval and periodic reapproval by a majority of the district's qualified electors. Similarly, the 1981 amendment to \\u00a7 48-1910 focuses exclusively on the conditions and terms under which a hospital district may lease its hospital, and does not purport to condition a district's right to operate its hospital under \\u00a7 48-1907(5) and (6) on payment of its bonded indebtedness.\\nFinally, as amended in 1981, \\u00a7 48-1907(5) and (6) obviously presuppose that the hospital in question is not producing enough income to make possible a lease in compliance with \\u00a7 48-1911, but instead, needs additional subsidization to continue operation. In contrast, the 1981 amendment to \\u00a7 48-1910, which expressly incorporates the requirements of \\u00a7 48-1911, presupposes a hospital that is a going concern. This strongly indicates that amended \\u00a7 48-1907(5) and (6) and 48-1910 were intended to establish two mutually exclusive approaches to be followed under different sets of circumstances. Accordingly, we hold that any hospital district, whether or not it has outstanding bonded indebted ness, may impose a secondary property tax without regard to \\u00a7 48-1910, provided it complies with \\u00a7 48-1907(6).\\nAs amended in 1984, \\u00a7 48-1907(6) states:\\nA hospital district may:\\n6. Impose a secondary property tax on all taxable property within the district for the purpose of funding the operation and maintenance of a hospital or combined hospital and ambulance service that is owned and operated by the district or to pay costs of an ambulance service contract entered into pursuant to this section.\\n(Amendments indicated by underlining.). Appellees contend that the 1984 amendment to A.R.S. \\u00a7 48-1907(6) operated to remove from that section the implicit requirement that a hospital district \\\"operate\\\" its hospital as a condition precedent to its power to impose a secondary property tax to fund the hospital's operation and maintenance. We disagree.\\nIt is clear from the pre-amendment language that the district could only impose a secondary property tax to fund the operation and maintenance of a hospital if it owned and operated the facility. It is also evident that the only purpose of the 1984 amendments to the first sentence of subsection (6) was to include within the permissible purposes for which a secondary property tax could be imposed the funding of an ambulance service contract or a combined hospital and ambulance service. Further, the location within that sentence in which the legislature inserted the words \\\"or combined hospital and ambulance service\\\" quite obviously demonstrates that it intended both the term \\\"hospital\\\" and the new term \\\"combined hospital and ambulance service\\\" to be modified by the phrase \\\"that is owned and operated by the district.\\\" As appellants correctly note, the rule of the last antecedent on which appellees rely is inapplicable if the context or clear meaning of the statute dictates otherwise. Tanner Cos. v. Arizona State Land Dep't, 142 Ariz. 183, 189, 688 P.2d 1075, 1081 (App. 1984). The import of the 1984 amendment to \\u00a7 48-1907(6) is clear, therefore, the rule of the last antecedent is inapposite here.\\nState v. Laemoa, 20 Or.App. 516, 533 P.2d 370 (1975), on which appellees rely, is distinguishable. In that case the Oregon Criminal Abandonment Statute applied to the \\\"parent, lawful guardian or other person lawfully charged with the care and custody of a child____\\\" Id. at 518, 533 P.2d at 372. The defendant was the parent of the child in question, and she was charged with abandonment under the statute. She argued that the indictment did not adequately state an offense because it did not allege that she was \\\"lawfully charged with the care and custody\\\" of the child. Id. Applying the rule of the last antecedent, the court held that that phrase applied only to the term \\\"other person,\\\" and that the indictment's allegation that defendant was the child's \\\"parent\\\" was sufficient. Id. at 518-19, 333 P.2d at 372-73. Unlike the situation in Laemoa, both the context of the language in \\u00a7 48-1907(6) and the manner in which it was amended in 1984 militate strongly against application of the rule of the last antecedent here. Accordingly, the Williams Hospital District had authority under \\u00a7 48-1907(6) to impose a secondary property tax to fund the operation and maintenance of the hospital only if the district actually \\\"operated\\\" the facility.\\nContrary to the district's argument, the provisions of its management agreement with Samaritan directly contradict the view that the district actually operates the hospital facility. Under Paragraph 3 of the agreement, the district expressly retains Samaritan to \\\"supervise, operate and manage\\\" the Williams facility, and Samaritan is responsible \\\"for the operation and management of the Williams facility including the establishment and implementation of the facility's policies and standards af fecting operation, services, maintenance, and pricing.\\\" Under Paragraph 3.1, Samaritan receives a $40,000 annual management fee for supervising, operating, and managing the Williams Hospital facility. The agreement also provides that Samaritan is to staff the hospital with qualified non-physician personnel of its own choosing who are all to be employees of Samaritan. Similarly, it is Samaritan that is to enter into \\\"such arrangements as it deems advisable with physicians to provide coverage for the Williams facility.\\\" Further, Samaritan is an independent contractor, not the district's agent, and Samaritan is required to indemnify the district against any liabilities arising out of the use or operation of the Williams Hospital facility.\\nThe district's contention that it actually \\\"operates\\\" the Williams facility is, in short, untenable. The district has pointed to nothing in the record in support of its contention. The district certainly owns the Williams facility, but it is exclusively operated by Samaritan. Accordingly, we conclude that the district lacked authority under A.R.S. \\u00a7 48-1907(6) to impose a secondary property tax to fund the operation and maintenance of the Williams Hospital.\\nATTORNEY'S FEES\\nAppellants brought the consolidated actions under authority of A.R.S. \\u00a7 42-204(C), which provides in part:\\nWithin one year after payment of the first installment of the tax, an action may be maintained to recover any tax illegally collected, and if the tax due is determined to be less than the amount paid, the excess shall be refunded in the manner provided by this title.\\nSubsection (D) of that section provides: \\\"The department shall be a party to any action brought pursuant to this section.\\\" Appellants joined the Arizona Department of Revenue as a defendant in these actions as required by \\u00a7 42-204(D). In both actions, appellants sought to recover their attorney's fees from the Department of Revenue pursuant to A.R.S. \\u00a7 12-348(A)(2), which provides:\\nA. In addition to any costs which are awarded as prescribed by statute, a court shall award fees and other expenses to any party other than this state or a city, town or county which prevails by an adjudication on the merits in any of the following:\\n2. A civil action brought by the party against the state, a city or town to challenge the assessment or collection of taxes.\\nBecause appellants lost in the trial court, the trial court did not consider whether attorney's fees were awardable against the Department of Revenue under this statute.\\nIn their joint opening brief, appellants urge that in the event this court reverses the trial court's rulings on appellants' claims for relief, these eases should be remanded to allow the trial court to consider and rule on appellants' claims for attorney's fees incurred in the lower court and on appeal. In its answering brief, however, the Department of Revenue notes that under Rule 21(c), Arizona Rules of Civil Appellate Procedure, and Lacer v. Navajo County, 141 Ariz. 392, 687 P.2d 400 (App.1984), this court may award attorney's fees for work done in the trial court where the losing party in the trial court prevails on appeal, and therefore urges that we address the question of whether the Department of Revenue may be liable for an award of fees under A.R.S. \\u00a7 12-348(A)(2).\\nThe department argues that it never took a position on the merits adverse to appellants in the trial court on appellants' claims against the Williams Hospital District, and, in fact, took no position at all except to disclaim liability for attorney's fees. The department also urges that \\u00a7 12-348 is inapplicable to this case because subsection (G)(4) provides:\\nThis section does not:\\nApply to . proceedings in which the state or a city, town or county is a nominal party.\\nIn their separate reply brief on the attorney's fees issues, appellants Santa Fe, Black Mesa Pipeline, and Mountain States Telephone (\\\"fees appellants\\\") note that \\u00a7 12-348(A)(2) allows awards of attorney's fees only against cities, towns, and the state, and not against counties or special taxing districts like the Williams Hospital District. The \\\"fees appellants\\\" contend that the Department of Revenue's status as an \\\"indispensable\\\" party to this action compensates for the absence of authority in \\u00a7 12-348(A)(2) for awards of attorney's fees in tax matters against counties, and therefore allows taxpayers who would otherwise seek recovery of fees against a county to recover their fees against the state. The \\\"fees appellants\\\" urge that it would be unfair to make taxpayers bear the costs of their own fees for overturning an illegal tax, and that the Department of Revenue is best able to pay those fees.\\nThe \\\"fees appellants\\\" also contend that the Department of Revenue is not a \\\"nominal\\\" party under A.R.S. \\u00a7 12-348(G)(4) because it has a real and substantial interest in the outcome of this case as the overall administrator of Arizona's property tax laws. They further argue that it would contravene the legislative intent behind A.R.S. \\u00a7 12-348(A)(2) if the Department of Revenue were allowed to control a taxpayer's ability to recover attorney's fees in a property tax challenge case by deciding after the action is commenced whether or not to take a position on the merits. The fees appellants also contend that Cortaro Water Users' Ass'n v. Steiner, 148 Ariz. 314, 714 P.2d 807 (1986), and Mission Hardwood Co. v. Registrar of Contractors, 149 Ariz. 12, 716 P.2d 73 (App.1986), are inapplicable because the instant case does not involve a judicial review of an agency's quasi-judicial decision.\\nWe conclude that the Department of Revenue is exempt from liability for attorney's fees in this case pursuant to A.R.S. \\u00a7 12-348(G)(4). The \\\"fees appellants\\\" correctly note that Cortaro and Mission Hardwood arose in the context of judicial reviews of agency decisions in which attorney's fees were sought against the agencies pursuant to A.R.S. \\u00a7 12-348(A)(3). In neither case, however, was the court's rationale limited to considerations peculiar to subsection (A)(3). In our view, both cases stand for the proposition that a state agency's status as a \\\"nominal\\\" party under A.R.S. \\u00a7 12-348(G)(4) depends on whether it adopts the role of an advocate on the merits of the litigation.\\nIn this case, the Department of Revenue carefully avoided taking any position on the merits either in the trial court or on appeal. Therefore, the department was purely a nominal party within the meaning of A.R.S. \\u00a7 12-348(G)(4), and fees cannot be awarded against it. Division Two of this court recently reached the same conclusion in a similar case. See Arizona Tax Research Ass'n v. Maricopa County, 162 Ariz. 94, 781 P.2d 71 (1989). The \\\"fees appellants\\\" public policy objections to this result are in reality arguments against the wisdom of A.R.S. \\u00a7 12-348(G)(4), and should be directed to the legislature.\\nReversed and remanded for proceedings consistent with this opinion.\\nGRANT, P.J., and FIDEL, J., concur.\\n. Former \\u00a7 36-1231 through 36-1249, governing hospital districts, were renumbered as A.R.S. \\u00a7 48-1901 through 48-1919 by Laws 1985, ch. 190, \\u00a7 14. For clarity we refer to the relevant provisions by their current numbers wherever possible.\\n. Appellants also assert that the Williams Hospital District is using \\u00a7 48-1907(6) revenues to cover payments on its bonded indebtedness and capital expenditures in addition to expenses of operating and maintaining the hospital. The record before us, however, does not indicate to what extent the district's bond installments and capital expenditures were covered by \\u00a7 48-1907(6) revenues and how much, if any, was instead covered by taxes levied pursuant to A.R.S. \\u00a7 48-1912(B) and 48-1914(B). In any event, we need not reach this question in view of our disposition of this appeal, infra.\\n. The remainder of subsection (e)(1) consisted of provisions substantially equivalent to those now contained in A.R.S. \\u00a7 48-1911(B) and (C), quoted supra, at 608-609. A.C.A. \\u00a7 68-1409, later codified as A.R.S. \\u00a7 36-1240, became the first sentence of current A.R.S. \\u00a7 48-1910, quoted supra, at 608.\\n. We hold that any hospital district may impose a secondary property tax so long as the district complies with the provisions of \\u00a7 48-1907(6). Therefore, we proceed to determine whether the Williams Hospital District has complied with the statutory requirements in imposing the tax at issue in this case. Accordingly, we render no opinion on whether the lease executed between the district and Samaritan complies with the terms of \\u00a7 48-1911.\\n. Appellants Santa Fe, Black Mesa, and Mountain States Telephone pressed their claim for an award of attorney's fees in their motion for summary judgment below, but appellant El Paso Natural Gas did not.\"}"

arizona/1543339.json

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+"{\"id\": \"1543339\", \"name\": \"THE LONDON, PARIS, AND AMERICAN BANK, LIMITED, et al., Plaintiffs and Appellants, v. D. A. ABRAMS et al., Defendants and Appellees\", \"name_abbreviation\": \"London, Paris, & American Bank, Ltd. v. Abrams\", \"decision_date\": \"1898-06-11\", \"docket_number\": \"Civil No. 605\", \"first_page\": \"87\", \"last_page\": \"91\", \"citations\": \"6 Ariz. 87\", \"volume\": \"6\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T19:02:32.668413+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE LONDON, PARIS, AND AMERICAN BANK, LIMITED, et al., Plaintiffs and Appellants, v. D. A. ABRAMS et al., Defendants and Appellees.\", \"head_matter\": \"[Civil No. 605.\\nFiled June 11, 1898.]\\n[53 Pac. 588.]\\nTHE LONDON, PARIS, AND AMERICAN BANK, LIMITED, et al., Plaintiffs and Appellants, v. D. A. ABRAMS et al., Defendants and Appellees.\\n1. Appeal and Error \\u2014 Intervention \\u2014 Allowance Discretionary\\u2014 Will not Be Reviewed\\u2014Bev. Stats. Ariz. 1887, Par. 656, Cited. \\u2014Where plaintiffs and interveners are asserting claims to the same fund in the hands of defendant, an order permitting such intervention is a matter so entirely within the discretion of the trial court that the exercise of that discretion cannot be reviewed here. Statute, supra, cited.\\n'2. Actions \\u2014 Consolidation oe\\u2014 Discretionary \\u2014 Bev. Stats. Ariz. 1887, Pars. 727, 918, Construed..\\u2014Where two suits are instituted by different plaintiffs against the same defendant they are not authorized to be consolidated by the literal construction of paragraph 918, supra, providing for consolidation of suits \\u201cby the same plaintiff against the same defendant\\u201d or \\u201cby the same plaintiff against several defendants,\\u201d but where they relate to the same subject-matter, and plaintiffs in one, on their own motion, become interveners in the other, an order directing the cases to be tried together was within the discretion conferred by paragraph 727, supra, which provides that \\u201cthe court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties the court shall order them to be brought in.\\u201d\\n3. Appeal and Error\\u2014Beoord\\u2014Beview\\u2014Evidence.\\u2014Where the mutilated, interlined, and disfigured transcript shows the evidence in support of the appellants\\u2019 complaint to be meager, unsatisfactory, and to a considerable extent incompetent, this court will not reverse the judgment on the ground that it is not sustained by the evidence.\\nAPPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. A. C. Baker, Judge.\\nAffirmed.\\nThe facts are stated in the opinion.\\nJ. M. Damron, and Joseph H. Kibbey, for Appellants.\\nMillay & Bennett, for Appellees.\", \"word_count\": \"1856\", \"char_count\": \"11059\", \"text\": \"DAVIS, J.\\nThis is a consolidation of two separate actions, originally instituted in the district court of Maricopa County, and tried therein as one cause. The London, Paris, and American Bank, Limited, et ah, brought a suit (No. 2,769) against D. A. Abrams, as assignee of the Bank of Tempe, substantially alleging in their amended complaint, filed December 30,1896, that between the seventeenth and twenty-second days, of May, 1894, they intrusted to said bank for collection certain notes and claims, amounting in the aggregate to the sum of $1,326.75; that the bank collected said notes and claims, commingled the proceeds thereof with its own funds, paid out the same in the usual course of its business, and failed to pay over any part thereof to the appellants; that at the time of making said collections the Bank of Tempe was insolvent, and knew the fact, and on the twenty-third day of May, 1894,' made an assignment of all its real and personal property to the said D. A. Abrams, for the benefit of its creditors; that the said Abrams qualified and took possession of the assets of the-bank, which consisted of $53.15 in cash and other personal property; that the said assignee has converted the property so assigned to him into money, and now has in his hands, after-paying all expenses of the administration of said trust, the sum of $1,279.76; that the claims of these appellants have been duly presented to, and allowed by, said assignee, and payment demanded, but that payment thereof has been refused; that other creditors of said assignor bank have presented claims which have been allowed amounting to the sum of $12,996.04. As further disclosed by-the amended complaint, it was sought by those appellants who had joined as plaintiffs therein to have an equitable preference declared in their favor against the fund of $1,279.76 remaining in the hands, of the assignee, and to obtain an order for the payment to them of said residue, to the exclusion of all other creditors of said assignor. An answer was filed in the suit by the assignee, Abrams, simply alleging that the liabilities to the general creditors of said bank yet remained unpaid, that they were necessary parties, and asking that the suit abate. There was also filed an agreed statement of facts, signed by the counsel for plaintiffs and defendant. The record shows that subsequently, on January 6, 1897, leave was granted to R. B. Curley and other general creditors, claiming to represent $6,104.04 of allowed claims, to intervene in said suit, and on January 8, 1897, their complaint in intervention was filed, in which they specifically deny all those facts alleged in the amended complaint upon which the plaintiffs rely for preference over the general creditors, deny that the fund in the hands of the assignee is impressed with any trust in favor of plaintiffs, and allege that the statement of facts was executed without their consent and against their interest, and that the same is untrue. There is a further averment that the assignee has been acting as such for the period of two years and eight months, during which time he has made no report whatever to the court; and the interveners ask that the assignee be required to make a full report of his administration of said trust, and, upon approval thereof, that he be ordered to distribute all funds remaining in his hands equally among all creditors, in proportion to their several claims. A demurrer and motion to this intervention were respectively overruled and denied. On January 9,1897, the New York Life Insurance Company also commenced an action (No. 2,783) against D. A. Abrams, as assignee of the Bank of Tempe; its complaint making all necessary and formal averments, and charging that at the said company's request the said bank had on May 15, 1894, collected for it the sum of $345.50, and failed to remit the same, and asking that said assignee be required to pay said amount out of the assets remaining in his hands. On the same day the assignee, Abrams, filed an answer to this complaint, admitting the allegations thereof, but alleging and setting forth in detail all other claims which had been presented to and allowed by him, that he was in doubt as to the manner in which he should distribute the assets of the insolvent bank, and asking the direction of the court therein. The record shows that on January 15, 1897, the London, Paris, and American Bank, Limited, and others (being the parties plaintiff in case No. 2,769) filed a motion in case No. 2,783, representing that they had an interest in the subject-matter of the latter action, and invoking permission to intervene and make a defense therein; that on January 25, 1897, the motion was allowed and said leave granted; and that on January 30, 1897, the said parties filed an answer in said case No. 2,783. The record further shows that by order of the court, made January 25, 1897, said causes Nos. 2,769 and 2,783 were directed to be consolidated and tried together; that they were so tried and submitted to the court on April 3, 1897, without the intervention of a jury, whereupon the .court found that the plaintiffs in the said consolidated causes were not entitled to any preference over the interveners, the general creditors of the Bank of Tempe, nor over ,each other, and rendered judgment that the assignee make a complete report of his administration of said trust, and, upon the approval of his report by the court, that he distribute the funds remaining in his hands, pro rata, among all creditors of said bank, without any preference. From this judgment the plaintiffs in said consolidated causes are the appellants.\\nThe questions presented by the record for our consideration are three: 1. Did the court err in permitting the general creditors to intervene in case No. 2,769? 2. Did the court err in its order directing that the two cases be consolidated and tried together? 3. Is the judgment sustained by the evidence ?\\nUpon the first proposition we think there is manifestly hut little ground for controversy. The Territorial Code of Civil Procedure provides that \\\"any person who has an interest in the subject-matter of the suit which can be affected by the judgment may, on leave of the court or judge, intervene in such suit or proceeding at any time before the trial.\\\" Rev. Stats., par. 656. The plaintiffs and interveners were asserting claim to the same fund, and the matter was so entirely within the discretion of the court that the exercise of that discretion cannot be reviewed here.\\nThe second question, we think, also involves a matter largely of the court's discretion. The two actions, it is true, are not such as are authorized to be consolidated, by the literal construction of paragraph 918 of the Revised Statutes. They are not suits \\\"by the same plaintiff against the same defendant\\\" nor \\\"by the same plaintiff against several defendants.\\\" They are cases, however, which relate to the same subject-matter, and before trial, as the record shows, the plaintiffs in the one, upon their own motion, became interveners in the other. We consider that the order directing the cases to be tried together was fairly within the discretion conferred by paragraph 727 of the Revised Statutes, which provides that \\\"the court may determine any controversy be tween parties before it, when it can be done without prejudice to the rights of others or by saving their rights; but \\u2022when a complete determination of the controversy cannot be had without the presence of other parties, the court shall order them to be brought in. ' '\\nIn the final proposition we can see no ground for reversal. An examination of the mutilated, interlined, and disfigured transcript shows the evidence in support of the material allegations of the appellants' complaints to be meager, unsatisfactory, and to a considerable extent incompetent. It may reasonably be questioned whether there is any proof whatever that the Bank of Tempe received these claims for collection, or that it made the collection thereof, or that the proceeds, if collected, were ever placed with the other funds of the bank. There is no testimony covering these points from any person who transmitted the claims or from any officer or employee of the bank. Only two witnesses were examined on the trial,\\u2014the assignee and' his clerk. The former's testimony was limited to a statement that the latter had been attending to the details of the management of the property and assets of the bank. The testimony of the clerk, in so far as it related to material points, was vague, indefinite, and based solely upon entries found in books from the bank which had come into the assignee's possession. In this state of the evidence, we cannot say that the judgment is not sustained. \\\"We find no error in the record, and the judgment is affirmed.\\nStreet, C. J., Sloan, J., and Doan, J., concur.\"}"

arizona/1546309.json

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+"{\"id\": \"1546309\", \"name\": \"HAYDEN PARTNERS LIMITED PARTNERSHIP, an Arizona limited partnership, Plaintiff-Appellant, v. MARICOPA COUNTY, a political subdivision of the State of Arizona; and the Department of Revenue of the State of Arizona, Defendants-Appellees\", \"name_abbreviation\": \"Hayden Partners Ltd. Partnership v. Maricopa County\", \"decision_date\": \"1990-10-04\", \"docket_number\": \"No. 1 CA-TX 89-007\", \"first_page\": \"121\", \"last_page\": \"126\", \"citations\": \"166 Ariz. 121\", \"volume\": \"166\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:56:40.776110+00:00\", \"provenance\": \"CAP\", \"judges\": \"JACOBSON, P.J., and GERBER, J., concur.\", \"parties\": \"HAYDEN PARTNERS LIMITED PARTNERSHIP, an Arizona limited partnership, Plaintiff-Appellant, v. MARICOPA COUNTY, a political subdivision of the State of Arizona; and the Department of Revenue of the State of Arizona, Defendants-Appellees.\", \"head_matter\": \"800 P.2d 987\\nHAYDEN PARTNERS LIMITED PARTNERSHIP, an Arizona limited partnership, Plaintiff-Appellant, v. MARICOPA COUNTY, a political subdivision of the State of Arizona; and the Department of Revenue of the State of Arizona, Defendants-Appellees.\\nNo. 1 CA-TX 89-007.\\nCourt of Appeals of Arizona, Division 1, Department T.\\nOct. 4, 1990.\\nNearhood & Associates, P.C. by James R. Nearhood, Phoenix, for plaintiff-appellant.\\nRobert K. Corbin, Atty. Gen. by Jack B. Schiffman, John William Ranby and Sandra B. Kelley, Asst. Attys. Gen., Phoenix, for defendants-appellees.\", \"word_count\": \"2935\", \"char_count\": \"18870\", \"text\": \"OPINION\\nFIDEL, Judge.\\nThe appellant, the developer of a partially completed and partially sold residential subdivision, appeals the trial court's determination that c\\u00e9rtain subdivision property still owned by the developer was properly classified as class four undetermined usage property rather than class five residential property for the 1986 tax year. We consider three types of property: (1) unsold residential lots containing completed or partially completed residences; (2) common area tracts on which a swimming pool and ramada or landscaping had been completed; and (3) residential lots on which the developer had completed landscaping, grading, paving, and utility installations, but had not yet started to build houses. We conclude that all three types of property were objectively committed to a residential end use and that a class five designation was improperly denied.\\nFACTS\\nA parcel of approximately nine acres in Scottsdale, Arizona, is the subject of this case. When the taxpayer, Hayden Partners Limited Partnership, acquired the parcel in June 1980, there were no streets, curbs, sidewalks, utility connections, or structures on it.\\nHayden Partners undertook to develop the parcel as a residential subdivision and, on June 16, 1983, recorded a subdivision plat. The subdivision, named \\\"Villa Antano,\\\" consisted of seventy-seven residential lots and eight common area tracts. Hayden Partners began grading and leveling the property in July 1983, and commenced adding utilities, streets, curbs, and sidewalks the following month.\\nIn September 1983, Hayden Partners recorded a declaration of covenants, conditions, and restrictions for Villa Antano that restricted the property exclusively to single family residential use. The common areas and facilities are limited to use by Villa Antano residents and their guests and invitees.\\nAs of January 1, 1986, the eight common area tracts were fully landscaped. A swimming pool and ramada had been installed on one of them; paving, curbs, sidewalks, gutters, water lines, sewer lines, gas lines, electric lines, telephone lines, grading, and landscaping for the rest of the subdivision were complete. The forty-three (of seventy-seven) residential lots that had been sold contained fully completed residences and were classified as class five property (\\\"used for residential purposes\\\") within A.R.S. \\u00a7 42-162(A)(5) (Supp. 1989).\\nOn January 1, 1986, Hayden Partners retained ownership of the eight common area tracts and of the thirty-four unsold residential lots. Fourteen of these lots contained fully or partially completed residences; the remaining twenty lots were vacant. The Assessor classified nine of the lots containing fully or partially completed residences as class five residential property. This classification is uncontested. The subject of this appeal is the class four undetermined usage designation given to the remaining five fully or partially completed lots, the eight common area tracts, and the twenty vacant lots.\\nIn a property tax appeal in the superior court, Hayden Partners contested the class four classification of the disputed properties. It contended that these parcels should be classified as class five property pursuant to A.R.S. \\u00a7 42-136(A) and (B)(1980) [now A.R.S. \\u00a7 42-162(A) and (B) (Supp.1989) ] because their use or intended use was residential. The matter was presented on cross-motions for summary judgment, and the trial court granted summary judgment for the Department of Revenue (Department), holding:\\nthat the phrase \\\"intended use\\\" contained in subsection B of A.R.S. \\u00a7 42-162 refers to a use to be made of the subject property by the person owning the property on the classification date, and does not refer to a use which may be made of the property by a person who may buy that property after the classification date.\\nThe trial court made findings pursuant to Ariz.R.Civ.P. 54(b), and entered a formal judgment in accordance with its ruling. Hayden Partners timely appealed. We have jurisdiction pursuant to A.R.S. \\u00a7 12-2101(B) (Supp.1989), and the appeal is assigned to Department T, the tax department of this court, pursuant to A.R.S. \\u00a7 12-170(C) (Supp.1989).\\nCLASSIFICATION OF UNSOLD AND PARTIALLY COMPLETED RESIDENCES\\nWe first consider the classification of the five lots in Villa Antano that contained partially completed or completed but unsold residences as of January 1, 1986. Section 42-162(B) provides that \\\"partially completed or vacant improvements shall be classified according to their intended use.\\\" A.R.S. \\u00a7 42-162(B). The parties agree that the classification of these lots is covered by \\u00a7 42-162(B), but dispute the meaning of that statute's reference to \\\"intended use.\\\"\\nThe Department argues that the statute refers to the use that the owner-taxpayer, in this case a developer, intends to make of its vacant and partially completed improvements. The Department emphasizes that Hayden Partners did not intend to reside in the Villa Antano parcels in 1986; it owned them to develop and sell them. As this intended use was not residential, according to the Department, the property could not properly be placed within class five.\\nHayden Partners argues to the contrary that the term \\\"intended use\\\" refers to the end use of property under development and that this use should be determined according to objective physical facts. Hayden Partners relies on County of Maricopa v. North Central Dev. Co., 115 Ariz. 540, 544-45, 566 P.2d 688, 692-93 (App.1977) (partially completed office building held \\\"devoted to commercial use\\\" within former A.R.S. \\u00a7 42-136(A)(3)), and Arizona Department of Revenue v. Cyprus-Bagdad Copper Co., 122 Ariz. 505, 508, 596 P.2d 31, 34 (1979) (partially completed ore reduction mill properly classified as property of a producing mine within former A.R.S. \\u00a7 42-136(A)(l) rather than commercial or industrial property under former \\u00a7 42-136(A)(3)).\\nWe find Hayden Partners' analysis correct. Nothing in A.R.S. \\u00a7 42-162(B) supports the Department's view that the legislature intended partially completed or vacant improvements to be classified based on the transient mental states of their current owners. The Department seeks support, but finds none, in A.R.S. \\u00a7 42-221(B) (Supp.1989) (county assessor must determine names of all persons owning, claiming, or having possession or control of property subject to taxation by January 1 of each year). Although that section understandably requires taxing authorities to maintain records of current ownership, it provides no assistance in deciding whether, under A.R.S. \\u00a7 42-162(B), the intended usage of partially completed or vacant improvements should be decided by reference to the motivating purpose of the current owner or by reference to the property's objective improvement toward a determinable end use.\\nThe Department's argument is likewise unsupported by its reference to A.R.S. \\u00a7 42-141(A)(5) (Supp.1989) (\\\"In the standard appraisal methods and techniques adopted [by the Department], current usage shall be included in the formula for reaching a determination of full-cash value.\\\"). That section concerns valuation in accordance with current usage; section 162(B) concerns classification in accordance with intended use. The former gives no guidance in deciding whether intended use under the latter is decided by a subjective or an objective standard.\\nThe Department additionally relies upon a case that interprets \\u00a7 42-141(A)(5) (the valuation in light of current usage section), but the case, to the extent that it is pertinent at all, is more helpful to the taxpayer than to the Department. In Stewart Title and Trust Co. v. Pima County, 156 Ariz. 236, 751 P.2d 552 (App.1987), taxpayers sought to preserve a beneficial agricultural designation for land that they had purchased for investment, and they established to the satisfaction of the trial court that, despite their investment purpose, they were devoting the land to current uses that met departmental criteria for agricultural designation. 156 Ariz. at 239, 240, 751 P.2d at 555, 556. On appeal by the taxing authorities, Division 2 of this court held that these objective criteria, rather than the owners' subjective intentions, determined the valuation of the land. 156 Ariz. at 243, 751 P.2d at 559. Stewart Title concerns the current usage of land in use, not the intended usage of land under development; thus, it is of little assistance in deciding this case. Yet it demonstrates that current usage determinations under the state tax statutes are made by reference to objective, not subjective, criteria.\\nWe find a similar focus proper under A.R.S. \\u00a7 42-162(B) when we consider the historical context of its adoption. That section was added to the property tax classification scheme in the wake of the trial court's decision in County of Maricopa v. North Central Dev. Co., 115 Ariz. 540, 566 P.2d 688 (App.1977). When North Central was decided, the tax classification statutes made no provision for partially improved property. 115 Ariz. at 542-43, 544, 566 P.2d. at 690-91, 692. The developer-taxpayers in that case challenged the reclassification of their partially completed commercial buildings from class four undetermined use to class three commercial use; they argued that such property could not be classified as devoted to a use until improvements were complete. 115 Ariz. at 544, 566 P.2d at 692. The trial court ruled in the developer's favor. Although this court eventually reversed the trial court's ruling, the Arizona legislature first responded by adding \\u00a7 162(B) to the tax classification scheme. The evident legislative purpose was to ensure classification of partially improved property according to its objectively ascertainable end use.\\nOur opinion is bolstered by examining the perverse results that would follow from the Department's interpretation of A.R.S. \\u00a7 42-162(B). Suppose that a residence were vacated by its owner-mortgagor and acquired by the mortgagee through deed in lieu of foreclosure and that the mortgagee listed the property to be sold. Under the Department's analysis, the home would lose its entitlement to a class five designation while resting vacant on the market, because the mortgagee would own the property to sell and not to live in. Similarly, a newly built but vacant office building, placed by its developer for sale, would qualify for class four undetermined rather than class three commercial status until acquired by an owner that intended to put it to commercial use. We do not believe that the legislature intended such results when it adopted A.R.S. \\u00a7 42-162(B).\\nThe Department argues, however, that, though a vacant or partially completed residence might ultimately warrant a class five (\\\"used for residential purposes\\\") designation under A.R.S. \\u00a7 42-162(A)(5), it might instead warrant a class six designation under A.R.S. \\u00a7 42-162(A)(6) as property \\\"devoted to use as leased or rented property solely for residential purposes.\\\" When it cannot be known in advance whether a partially completed or vacant residence is intended for rental or owner-occupancy, the Department argues, the intended usage is too undefined for any designation but class four (property not included in classes one, two, three, five, or six).\\nAgain we disagree. There may be some vacant or partially completed dwellings that are peculiarly designed or adapted to residential rental usage and not to owner occupancy. In the absence of such evidence, however, we conclude that a vacant or partially completed dwelling should be designated within the more general category of property \\\"intended\\\" to be \\\"used for residential purposes\\\" within the meaning of A.R.S. \\u00a7 42-162(A)(5) and (B). Once occupied, the residence should be reclassified as class six property if and when it becomes \\\"devoted to use as leased or rented property solely for residential purposes.\\\" A.R.S. \\u00a7 42-162(A)(6).\\nTo summarize, we conclude that where, as here, property has been manifestly improved toward a determinable residential end use, but where the improvements remain vacant or only partially complete, the \\\"intended use\\\" of those improvements under \\u00a7 42-162(B) is determined by an objective, functional standard and not by reference to the motivating purpose of the current owner. We add that this interpretation is consistent with the Department's own articulated policy. In discussion of vacant residential lots owned by a developer, the Department informed the trial court: \\\"The Department's policy and position is that the classification will change from class four to class five residential when construction begins on a residential structure.\\\"\\nCLASSIFICATION OF COMMON AREA TRACTS\\nThe question whether the common areas in Villa Antano were properly classified as class five property turns on whether they were \\\"used for residential purposes .\\\" within A.R.S. \\u00a7 42-162(A)(5) as of January 1, 1986. Clearly, these areas were not intended for residential construction; the statute, however, does not require that class five property be \\\"used as a residence\\\" but rather that it be \\\"used for residential purposes.\\\" On the facts before us, such a purpose for the eight common area tracts is clear. The Declaration filed by the developer restricted the entirety of Villa Antano to single-family residential use. As of January 1, 1986, the majority of the lots had already been sold to residential owners, and the common area tracts were used by and restricted to the use of Villa Antano residents and their guests. These tracts were thus integrated into a subdivision uncontestably committed to single-family residential use and, in our opinion, undergoing use \\\"for residential purposes\\\" within the meaning of A.R.S. \\u00a7 42-162(A)(5).\\nCLASSIFICATION OF VACANT RESIDENTIAL LOTS\\nIt cannot similarly be said that the twenty vacant lots in Villa Antano were being \\\"used for residential purposes\\\" as of January 1,1986. Although these lots were intended for residential construction, such construction had not started, and they were not undergoing usage for residential purposes. Hayden Partners argues, however, that these lots still qualify as \\\"vacant improvements\\\" under A.R.S. \\u00a7 42-162(B) and warrant a class five designation in accordance with their objectively demonstrable intended residential use. Citing provisions of the Department of Revenue's Land Manual and Assessment Practices Manual, Hayden Partners argues that the Department interprets \\\"improvements\\\" to include such \\\"off-site improvements\\\" as grading, sewers, compacting, landscaping, and utility lines. Because all of the vacant residential lots had undergone improvement of this nature, Hayden Partners argues, those lots should be treated as partially completed improvements intended for residential usage within the meaning of A.R.S. \\u00a7 42-162(B).\\nWe conclude with Hayden Partners that the term \\\"improvements\\\" in A.R.S. \\u00a7 42-162(B) does not restrictively refer to buildings or structures. Had the legislature intended to so restrict that statute, it would have employed those more specific terms. We further agree that, pursuant to A.R.S. \\u00a7 42-162(B), vacant lots that have undergone such \\\"off-site improvements\\\" as these should be classified as class five residential property where clear and objective indicia demonstrate that the property is intended for residential use.\\nThe Department argues that this holding might allow land developers who intend to develop non-residential properties to reap a tax windfall by purchasing land, filing a residential plat for it, putting in minor off-site improvements, and so achieving a beneficial class five assessment. We agree that indulgence of that subterfuge would disserve the public interest and the intent of A.R.S. \\u00a7 42-162(B). Our holding, however, does not go so far. Considered in isolation, the mere addition of a road or a sewer line or the filing of a plat might leave intended use ambiguous, and entitlement to residential classification would not be shown. That, however, is not the case before us. The vacant lots in Villa Antano\\n1. had undergone offsite improvements consistent with residential use;\\n2. were residentially earmarked by the plat and by the declarations filed by the developer; and\\n3. were surrounded by lots \\u2014 the majority of lots within the subdivision \\u2014 already containing occupied or completed residences.\\nIt is the totality of these circumstances that establishes the intended residential use of the vacant Villa Antano lots. In the absence of any evidence of a contrary intended usage, we conclude that they qualify as class five property.\\nCONCLUSION\\nHayden Partners has established its entitlement to a class five designation to all of the properties disputed in this appeal.\\nPursuant to A.R.S. \\u00a7 12-348 (Supp.1989), Hayden Partners has requested an award of attorneys' fees incurred in the Superior Court and on appeal. We grant the request. See A.R.S. \\u00a7 12-348(A)(2). Hayden Partners may establish the amount of its award by complying with Rule 21, Arizona Rules of Civil Appellate Procedure.\\nWe reverse the contrary judgment of the trial court and remand for proceedings consistent with this opinion.\\nJACOBSON, P.J., and GERBER, J., concur.\\n. The classification of property determines the calculation of its assessed valuation. A.R.S. \\u00a7 42-227(A)(Supp.l989). Class four property, property of undetermined use, is assessed at sixteen percent of its full cash value. Class five property, property used for residential purposes, is assessed at ten percent of its full cash value. A.R.S. \\u00a7 42-227(A)(4), (5). The classification assigned to a particular parcel has significant taxation consequences to its owner, because the amount of the owner's tax is determined by applying the tax rate against the property's assessed valuation. Hibbs v. Chandler Ginning Co., 164 Ariz. 11, 790 P.2d 297, 298 n. 1 (App. 1990).\\n. Hayden Partners cites, for example, the Arizona Department of Revenue Land Manual, which defines \\\"improvements\\\" as \\\"Buildings and other relatively permanent structures or developments located upon or attached to the land.\\\" Arizona Department of Revenue Land Manual 102 (1984) (emphasis added). This manual discusses improvements as including not only buildings and other structures, but also sewers, drains, landscaping, and similar works. Id\"}"

arizona/1546342.json

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+"{\"id\": \"1546342\", \"name\": \"STATE of Arizona, Appellee, v. Christopher Reed KEMPTON, Appellant\", \"name_abbreviation\": \"State v. Kempton\", \"decision_date\": \"1990-07-19\", \"docket_number\": \"No. 1 CA-CR 89-494\", \"first_page\": \"392\", \"last_page\": \"398\", \"citations\": \"166 Ariz. 392\", \"volume\": \"166\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:56:40.776110+00:00\", \"provenance\": \"CAP\", \"judges\": \"EHRLICH and KLEINSCHMIDT, JJ., concur.\", \"parties\": \"STATE of Arizona, Appellee, v. Christopher Reed KEMPTON, Appellant.\", \"head_matter\": \"803 P.2d 113\\nSTATE of Arizona, Appellee, v. Christopher Reed KEMPTON, Appellant.\\nNo. 1 CA-CR 89-494.\\nCourt of Appeals of Arizona, Division 1, Department A.\\nJuly 19, 1990.\\nReconsideration Denied Aug. 30, 1990.\\nReview Denied Jan. 23, 1991.\\nEobert K. Corbin, Atty. Gen. by Jessica Gifford Funkhouser, Chief Counsel, Crim. Div., and Mark E. Dwyer, Asst. Atty. Gen., Phoenix, and David S. Ellsworth, Yuma Co. Atty. by Philip Hall, Chief Deputy Co. Atty., Yuma, for appellee.\\nSuciu, Donovan & Schmitt by Michael J. Donovan, Yuma, for appellant.\", \"word_count\": \"3676\", \"char_count\": \"21939\", \"text\": \"OPINION\\nCLABOENE, Presiding Judge.\\nThe defendant was arrested and charged with possession of cocaine, marijuana and drug paraphernalia. Before trial, he moved to suppress evidence seized during the search of his vehicle, and to exclude statements he made to the police officers during and following the search. The trial court denied the motion after an evidentiary hearing. The evidence and statements were subsequently admitted during his trial. The jury found the defendant guilty of possession of cocaine and drug paraphernalia. The court placed the defendant on supervised probation for three years. The defendant timely appealed. In his appeal, the defendant challenges the legality of the police action in stopping and searching his truck. Because we find that the police were not justified in stopping the defendant and searching his truck without first obtaining a warrant, we reverse and remand for further proceedings.\\nFACTS\\nThe following events occurred in the small community of Somerton, Arizona, which is a few miles south of Yuma, Arizona. On December 15, 1988, at approximately 12:30 a.m., Agent Daniel Nordell, a member of a drug enforcement task force called Southwest Border Alliance, received information from a \\\"confidential reliable informant.\\\" The informant told Agent Nordell that the defendant had offered to sell the informant cocaine during the day of December 14, 1988. The informant stated that he had seen the cocaine in defendant's 1985 white Toyota truck. The infor mant also told Agent Nordell that the defendant would have the cocaine in his truck when he went to work the following morning. Although the informant did not refer to any specific amount, it was clear to Agent Nordell that it was a small amount of cocaine.\\nAgent Nordell relayed all of this information to Agent Juan Hoke, another member of the task force, immediately after the informant's phone call. At that time, Agents Nordell and Hoke discussed the need for a search warrant, but they decided not to get one. Agent Nordell testified about their conversation:\\nQ. Dan, you and Hoke talked about whether or not a search warrant would be required in this case when you talked to him? Right?\\nA. We discussed the idea of a search warrant briefly.\\nQ. And the decision was made that you were not going to get a search warrant between you and Hoke? Right?\\nA. Right.\\nQ. And that conversation was when you spoke with Hoke the night before between the hours of twelve and one?\\nA. Again, I am not real sure about the times, right now, but it was during the only discussion we had prior to the stop of Mr. Kempton.\\nQ. Now, concerning your discussion with Hoke about the search warrant, in this case you are not processing \\u2014 at least were at that time feeling that you were dealing with a relatively small amount of narcotics, someone who was referred to as a relatively small dealer, and you felt you had enough probable cause and decided to just stop and check his vehicle? Right?\\nA. Basically.\\nQ. And you discussed with me the thought processes behind that on the twenty eighth of February? Right?\\nA. Yes, sir.\\nQ. And you told me that, when you get a report that here is a vehicle out running around, that one of your reliable informants has seen some narcotics in, and you haven't been able to get a registration check to the vehicle, if we find that vehicle, we will stop it, and the person will be asked if he will let you take a look, and you said it's always nicer to get a consent search than to have to do it the hard way? We always ask them if they mind if we search? Did that about cover it?\\nA. It was in response of [sic] your statement about Mr. Kempton giving a consent of the vehicle, yes.\\nQ. But you were giving a general view of how you handled it there? Right?\\nA. I was responding that we always ask for a search of the vehicle.\\nAgent Hoke testified that between 12:30 a.m. and approximately 7:00 a.m., there were three magistrates available in the area to issue a search warrant and that a warrant could have been obtained in an hour or less. When Agent Hoke was asked if he had thought about getting a search warrant after the search had occurred, he responded, \\\"No. I had no \\u2014 I did not think of getting a search warrant prior nor after.\\\"\\nAt 7:00 a.m. on December 15, Agent Hoke watched the defendant leave his residence for work in the white Toyota truck described by the informant. Agent Hoke was acquainted with the defendant and was familiar with the truck. He contacted Officer White of the Somerton Police Department and asked Officer White to stop the defendant's truck and \\\"make it look like a traffic stop.\\\" Based on Agent Hoke's instruction, Officer White turned on his overhead emergency lights and followed the normal police procedure for stopping a vehicle. Officer White testified that the defendant had not committed a traffic violation, and that the defendant was not under the influence of drugs or alcohol at the time of the stop. The traffic stop was made solely on the orders of Agent Hoke who had told Officer White that he, Hoke, had probable cause to believe that the defendant had drugs in the truck.\\nOfficer White asked the defendant to step out of the truck. When the defendant asked Officer White why he was being stopped, Officer White responded that Agent Hoke wanted to speak to him regarding possession of illegal drugs. Agent Hoke immediately arrived and advised the defendant that he had probable cause to believe that the defendant was in possession of illegal drugs.\\nAgent Hoke asked the defendant if he would mind emptying his pockets. The defendant did so, but no narcotics were found. Agent Hoke then asked for permission to look in the defendant's vehicle. The defendant replied, \\\"Go ahead. You are not going to find nothing.\\\"\\nUpon inspecting the truck, Agent Hoke found four burnt marijuana cigarettes in the ashtray. The defendant was placed under arrest and advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant stated that he understood his rights and did not mind answering questions. Agent Hoke asked the defendant about the marijuana cigarettes, and he admitted that they were his.\\nAgent Hoke then went back into the truck, searched, and found a small vial containing a powder-like substance which he suspected was cocaine. The defendant stated that he knew what was in the vial, but denied knowing how it got in his truck.\\nAfter the arrest, the defendant was taken to the Somerton Police Department. He was not handcuffed. He was allowed to smoke and to make as many phone calls as he wanted. During this period, an officer assigned to watch the defendant asked him if he knew what was in the vial. The defendant responded that he knew the vial contained cocaine because he had tasted it, that the cocaine was not his, and that he did know that it was in the truck.\\nDuring the search of the defendant's truck at the police station, the officers found a small straw with white residue along with a straight razor blade. The defendant later signed a statement admitting that the marijuana cigarettes were his and that the cocaine had been left in his truck.\\nDISCUSSION\\nThe defendant contends that the stop and search of his vehicle were illegal and that the evidence discovered as a result of that search should have been suppressed. He argues further that the statements made after the search should have been suppressed because they were the \\\"fruits\\\" of the illegal stop and search of the defendant's vehicle.\\nThe state's position is that since the agents had a reasonable suspicion that the defendant's vehicle contained narcotics, they could stop the vehicle to inquire whether the driver would consent to a search of the car.\\nWe must answer two questions. First, were the defendant's fourth amendment rights violated when the agents, who had approximately six and one-half hours to obtain a warrant, made a warrantless stop of the defendant's truck based solely on reliable information from an informant that the defendant's truck contained illegal contraband? And second, if such a stop was a fourth amendment violation, was a subsequent \\\"consent search\\\" of the defendant's person and truck valid?\\nTHE WARRANTLESS STOP\\nThe starting point of this inquiry is the fourth amendment to the federal constitution. The basic constitutional rule is that a search or seizure is per se unreasonable unless it is supported by a warrant or falls within one of the few specifically established and well-delineated exceptions to the constitutional warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). See also Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971); State v. Sardo, 112 Ariz. 509, 513, 543 P.2d 1138, 1142 (1975). These exceptions must be narrowly tailored to the circumstances that justify their creation. Florida v. Royer, 460 U.S. 491, 499-500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983); Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); Terry v. Ohio, 392 U.S. 1, 19, 25-26, 88 S.Ct. 1868, 1878-79, 1882, 20 L.Ed.2d 889 (1968). If special circumstances exist, the resulting search or seizure must occur only at the time in which those circumstances are present, and must be as short in duration as possible. See Coolidge, 403 U.S. at 458-64, 91 S.Ct. at 2033-37; Royer, 460 U.S. at 500, 103 S.Ct. at 1325. See also Terry, 392 U.S. at 25-26, 88 S.Ct. at 1882-1883.\\nOne of the exceptions to the warrant requirement is based, in part, upon the impracticability of obtaining a warrant to search an automobile. Carroll v. United States, 267 U.S. 132, 159-60, 45 S.Ct. 280, 287, 69 L.Ed. 543 (1925). In Carroll, the Court recognized that, because of the nature of an automobile in transit, an immediate intrusion may be necessary if police officers are to secure the illicit substance. United States v. Ross, 456 U.S. 798, 806-07, 102 S.Ct. 2157, 2163, 72 L.Ed.2d 572 (1982) (citing Carroll, 267 U.S. at 153, 45 S.Ct. at 285). The Court held that a warrantless search of an automobile is legal if probable cause exists to believe \\\"that an automobile or other vehicle contains that which by law is subject to seizure and destruction.\\\" Carroll, 267 U.S. at 149, 45 S.Ct. at 284. See also State v. Axley, 132 Ariz. 383, 390-91, 646 P.2d 268, 275-76 (1982).\\nThe reason for carefully-crafted exceptions to the warrant requirement is found in the purpose of the fourth amendment. Prior review by a detached and neutral magistrate before the issuance of a search warrant limits the power held by executive officers over the individual citizen and prevents unjustified searches from occurring at all. United States v. United States Dist. Court, 407 U.S. 297, 317, 92 S.Ct. 2125, 2136-37, 32 L.Ed.2d 752 (1972). Furthermore, it helps \\\"prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure.\\\" United States v. Martinez-Fuerte, 428 U.S. 543, 565, 96 S.Ct. 3074, 3086, 49 L.Ed.2d 1116 (1976). We must keep firmly in place the principle that police whenever practicable must obtain advance judicial approval of searches and seizures through the warrant process. See, e.g., Katz, 389 U.S. at 356-57, 88 S.Ct. at 514; Chapman v. United States, 365 U.S. 610, 613-17, 81 S.Ct. 776, 778-80, 5 L.Ed.2d 828 (1961).\\nThe exigencies which create the automobile exception are the lack of time to get a warrant and the mobility of the vehicle. Coolidge, 403 U.S. at 459-65, 91 5. Ct. at 2034-37. See also Axley, 132 Ariz. at 391, 646 P.2d at 276. Those exigencies were not present in this case. The officers had six and one-half hours to obtain a - /arrant without any apparent fear that the truck would flee the jurisdiction. They knew the defendant, where he lived, the vehicle that he drove, and the place where he worked. The information provided to the officers suggested, in fact, that the defendant would remain in Somerton. There was no reason to stop the defendant except to ask for his consent to search his truck on the grounds that the agents believed that they had probable cause that the defendant possessed illegal drugs. Any one of three magistrates could have issued a warrant in less than an hour if there was probable cause to support such a warrant. The only reasons the agents gave for not obtaining a warrant were that the amount of cocaine was small, that the defendant was not a major dealer, and that \\\"it's always nicer to get a consent search than to have to do it the hard way.\\\" The ease and importance of obtaining a search warrant undercuts the justification for warrantless searches based on exigent circumstances.\\nThe record reflects that stopping a vehicle and asking for consent to search was not an unusual procedure for these agents. If the request for permission to search was denied, then the police would determine if it was practical to get a warrant.\\nThe general rule requires a warrant before a search or seizure can occur unless one of the narrow exceptions to the warrant requirement applies. Police may conduct a warrantless search and seizure of a vehicle when they are confronted by emergencies and exigencies which do not allow time to allow a judicial officer to evaluate and act upon applications for a warrant supported by probable cause. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1982, 26 L.Ed.2d 419 (1970). See also Axley, 132 Ariz. at 391, 646 P.2d at 276 (1982).\\nBecause Agent Hoke and Officer White had ample time to obtain a warrant, we find that they were not justified in stopping and searching the defendant without first obtaining a warrant.\\nCONSENT TO SEARCH\\nThe position of the state, however, goes further. Even if the stop was not legal, says the state, the consent to search given by the defendant was voluntary and no arrest occurred until contraband was discovered as a result of the voluntary consensual search. Therefore, the evidence was admissible. This is not the law as applied to these facts.\\nImmediately after the defendant was stopped by Officer White and told to get out of his vehicle, Agent Hoke arrived on the scene. He told the defendant that he had probable cause to believe that the defendant was in possession of illegal drugs, and asked the defendant if he could look in his truck. The defendant had no objection.\\nEven if we assume that the consent to search by the defendant was voluntary, the evidence found as a result of that consent must be suppressed if the unconstitutional conduct in stopping the vehicle is not sufficiently attenuated from the subsequent seizure. Brown v. Illinois, 422 U.S. 590, 602-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975). See also Dunaway v. New York, 442 U.S. 200, 216, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979); United States v. Taheri, 648 F.2d 598, 601 (9th Cir.1981). In other words, the unconstitutional acts of an officer taint a consensual search unless there are sufficient intervening circumstances between the unlawful conduct and the consent to truly show that it was voluntary.\\nAlthough Brown dealt with the exclusion of a defendant's statements, it applies equally to contraband revealed by the consent search. Taheri, 648 F.2d at 601. The reason for the rule is to make sure that there is no causal connection between the unconstitutional conduct and the consent to search or the giving of inculpatory statements. When the connection between the unconstitutional conduct and the search is close, not only is the exclusion of the evidence more likely to deter similar police action, but the use of such evidence is more likely to compromise the integrity of the system. As a result, Brown requires us to review three factors in analyzing the circumstances surrounding the consent: First, the \\\"temporal proximity\\\" of the unconstitutional conduct and the consent; second, the presence of any intervening circumstances; and finally, the purpose and flagrancy of the official misconduct. The first two certainly deal with causal remoteness, and the last deals with broad general policy which would justify the exclusion of the evidence. See United States v. Johnson, 626 F.2d 753, 758 (9th Cir. 1980), aff'd, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).\\nUnder this analysis, because the search occurred almost immediately after Officer White stopped the defendant, there was temporal proximity between the unconstitutional conduct and the consent. There were no intervening circumstances between the police conduct and the consent. In addition, the misconduct by the police was clear. Agent Nordell felt that since the defendant was a \\\"small dealer\\\" with a small amount of contraband, the effort of obtaining a warrant was not palatable. Agent Hoke, when asked, simply did not even think about a warrant. The stop was made to obtain a consent search, and for no other reason. This type of conduct is exactly what the exclusionary rule was designed to deter. When police purposely effect an illegal detention in the hope that a consent search or custodial interrogation will yield incriminating evidence and statements, the exclusionary rationale is especially compelling. See United States v. Perez-Esparza, 609 F.2d 1284, 1289-90 (9th Cir.1979).\\nTherefore, we hold that the defendant was unconstitutionally detained without a warrant and that the consent search and the statement made to the officers were not sufficiently attenuated to prevent the exclusion of the evidence.\\nWe reverse and remand for further proceedings consistent with this opinion.\\nEHRLICH and KLEINSCHMIDT, JJ., concur.\\n. The court dismissed the charge of possession of marijuana due to insufficient quantity.\\n. The facts in this record do not support an argument under the rationale of pretextual searches. See United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir.1988). There was no pretext of any kind by White when he stopped Kempton's vehicle.\\n. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. Amend. IV.\\n. Although mobility of the automobile, as reflected in Carroll, was the original reason for the exception, later cases dealing with other aspects of warrantless searches have observed that the expectation of privacy is less in automobiles than in a home or office. California v. Carney, 471 U.S. 386, 393-94, 105 S.Ct. 2066, 2070-71, 85 L.Ed.2d 406 (1985); South Dakota v. Opperman, 428 U.S. 364, 367-69, 96 S.Ct. 3092, 3096-97, 49 L.Ed.2d 1000 (1976). See also United States v. Chadwick, 433 U.S. 1, 12-13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977). The facts here do not require us to examine the application of this reasoning.\\n. Justice Jackson, writing for the Court in Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948), stated: The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers____\\n. \\\"In lieu of a written affidavit, the magistrate may take an oral statement under oath which shall be recorded on tape____ The statement may be given in person to the magistrate, or by telephone, radio, or other means of electronic communication. This statement shall be deemed to be an affidavit for the purposes of the issuance of a search warrant.\\\" A.R.S. \\u00a7 13-3914(C). See State v. Hadd, 127 Ariz. 270, 619 P.2d 1047 (1980).\\n. The following comment is important when discussing the degree of exigency of the circumstances that compel warrantless conduct:\\nThe availability of a search warrant via telephone or other electronic means obviates much of the claimed exigency justification for a warrantless search for objects____ Administrative obstacles heretofore cited for not securing a search warrant by appearing before a magistrate must now be examined in a different light. Such factors as the distance from a magistrate, the time required to appear before a magistrate, the normal business hours of a magistrate, the inconvenience of securing and dispatching additional agents to appear before a magistrate are now less determinative in justifying the exception. A magistrate, and a search warrant, can be as close as the nearest telephone or mobile radio. The mobility, and thus the risk of loss, of the object to be searched and property to be seized is reduced in importance.\\nMarke, Telephonic Search Warrants: A New Equation for Exigent Circumstances, 27 Clev.St. L.Rev. 35, 38 (1978).\"}"

arizona/1548067.json

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+"{\"id\": \"1548067\", \"name\": \"Victor G. AVILA, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Gary E. Donahoe, a judge thereof, Respondent Judge. Dorna Esther BUNG, individually; and Dorna Esther Bung dba Dee's Flowers and Gifts, an Arizona corporation, Real Parties in Interest\", \"name_abbreviation\": \"Avila v. Superior Court\", \"decision_date\": \"1991-08-29\", \"docket_number\": \"No. 1 CA-SA 91-082\", \"first_page\": \"49\", \"last_page\": \"52\", \"citations\": \"169 Ariz. 49\", \"volume\": \"169\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T20:48:56.751295+00:00\", \"provenance\": \"CAP\", \"judges\": \"BROOKS, P.J., and CONTRERAS, J., concur.\", \"parties\": \"Victor G. AVILA, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Gary E. Donahoe, a judge thereof, Respondent Judge. Dorna Esther BUNG, individually; and Dorna Esther Bung dba Dee\\u2019s Flowers and Gifts, an Arizona corporation, Real Parties in Interest.\", \"head_matter\": \"816 P.2d 946\\nVictor G. AVILA, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Gary E. Donahoe, a judge thereof, Respondent Judge. Dorna Esther BUNG, individually; and Dorna Esther Bung dba Dee\\u2019s Flowers and Gifts, an Arizona corporation, Real Parties in Interest.\\nNo. 1 CA-SA 91-082.\\nCourt of Appeals of Arizona, Division 1, Department A.\\nAug. 29, 1991.\\nDouglass & Ferrarino by Bedford Douglass, Jr., Mesa, for petitioner.\\nBurrell, Seletos & Tinsley by Ernest D. Tinsley, Phoenix, for real parties in interest.\", \"word_count\": \"2150\", \"char_count\": \"13787\", \"text\": \"OPINION\\nJACOBSON, Judge.\\nPetitioner is the plaintiff in a personal injury suit that includes a claim for loss of earning capacity. The trial court has granted defendant's motion to compel plaintiff to be examined by a vocational rehabilitation specialist, pursuant to Rule 35, Arizona Rules of Civil Procedure. The issue presented is whether a vocational rehabilitation examination, performed by a specialist who is concededly not a physician, is authorized within the scope of Rule 35.\\nFacts and Procedural History\\nOn November 20, 1989, plaintiff filed a negligence complaint against respondent Bung individually and doing business as Dee's Flowers and Gifts (defendant), alleging personal injury and loss of earning capacity as a result of an automobile accident. The prayer requested, among other things, special damages for \\\"loss of earnings, past and future,\\\" and for \\\"loss of earning power.\\\"\\nDuring the course of discovery it became apparent that the lost wages claim would be the predominant damages sought. De fendant notes that, although plaintiff's medical bills total about $10,000, plaintiff alleges his lost earnings will exceed $200,-000.\\nOn January 19, 1991, defendant filed a Motion for Independent Examination, requesting \\\"an order requiring Plaintiff to submit to an examination by a qualified vocational rehabilitation specialist and his consultants in order that Defendant might obtain an independent opinion with respect to the issue of Plaintiff's ability to work.\\\" Defendant alleged that pretrial discovery established that plaintiff intended to present evidence from a vocational rehabilitation specialist that plaintiff is no longer able to work in his former profession, as a carpenter. Defendant requested that plaintiff be ordered to undergo similar testing, to be administered by defendant's vocational rehabilitation specialist, including \\\"certain psychological and mental testing . and . physical testing, including range of motion,\\\" administered by defendant's specialist. The motion did not establish that defendant's specialist was a physician, or give any other information regarding his qualifications. Defendant urged the court to issue the order on the basis of its authority to order a party \\\"to submit to a physical or mental examination by a physician\\\" under Rule 35.\\nPlaintiff opposed the motion, arguing first that Rule 35 authorizes examinations only by physicians; second, that defendant had not shown good cause for the exam because defendant had other discovery devices available to obtain the information necessary for his specialist to render an opinion on plaintiff's ability to work; and third, by pointing out that the discovery period had ended under the local rules. Defendant argued that the court's broad authority to order discovery should be invoked in order for the defendant to be able \\\"to put on a defense concerning Plaintiff's claim of future lost wages.\\\"\\nAfter oral argument on the motion, the trial court granted defendant's motion, ordered plaintiff to appear before defendant's vocational rehabilitation specialist, ordered that defendant make the results available to plaintiff after the examination, and to make the specialist available for deposition if requested by plaintiff. Plaintiff filed this special action from that order.\\nSpecial Action Jurisdiction\\nOrders compelling discovery are interlocutory in nature and thus are not appealable. However, if plaintiff is wrongly compelled to submit to an examination the trial court was not authorized to order, the damage will have been done and cannot be remedied by an appeal. Other courts have concluded that the ability of a trial court to coerce a party to submit to a vocational examination and interview, without the presence of counsel, is a serious question of law that is likely to escape resolution if review is delayed. E.g., Acosta v. Tenneco Oil Co., 913 F.2d 205, 208 (5th Cir.1990). Moreover, courts have historically utilized the common law extraordinary writs to review orders compelling medical examinations. See, e.g., Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) (granting mandamus); Martin v. Superior Court, 104 Ariz. 268, 451 P.2d 597 (1969) (granting writ of certiorari); Pedro v. Glenn, 8 Ariz.App. 332, 446 P.2d 31 (1968) (application for writ of certiorari or writ of prohibition is proper procedure to seek review of order compelling examination). Therefore, special action is an especially appropriate vehicle for such review. See Rule 1(a), Rules of Procedure for Special Actions. Additionally, this is a pure issue of law, and a case of first impression in Arizona. E.g., Mullet v. Miller, 168 Ariz. 594, 816 P.2d 251 (App.1991). In the exercise of our discretion, we accept special action jurisdiction in this case.\\nMerits\\nRule 35(a), Arizona Rules of Civil Procedure, provides:\\nWhen the mental or physical condition . of a party . is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician____ The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.\\n(Emphasis added.) This rule is substantially the same as the federal rule, except that the federal rule has been amended to specifically authorize examination by a psychologist as well as a physician. Rule 35, Federal Rules of Civil Procedure, as amended by Act of Nov. 18, 1988, Pub.L. 100-690, Title VII, \\u00a7 7047(b), 102 Stat. 4401. Prior to this amendment, most federal courts held that Federal Rule 35 authorized an examination only by a licensed physician. See 8 C. Wright & A. Miller, Federal Practice & Procedure \\u00a7 2235 at 293 (Supp.1991). Thus, the rule did not authorize a trial court to compel an examination by a licensed psychologist. See, e.g., Landry v. Green Bay & Western R.R. Co., 121 F.R.D. 400 (E.D.Wis.1988).\\nSince the amendment, the commentators have agreed that the scope of the rule is limited to examinations conducted by a physician or a psychologist, and does not include examinations by a vocational rehabilitation expert who is not licensed in either of those disciplines. 4A Moore's Federal Practice \\u00b6 35.03[3] at 35-17 (1991) (\\\"A Rule 35 examination must be conducted by a physician or a psychologist____ The rule does not, however, permit a court to order an examination to be conducted by someone who is not a physician or a licensed psychologist.\\\"); Wright & Miller, supra (\\\"The rule does not authorize examination by a vocational rehabilitation expert.\\\")\\nThe weight of federal case law agrees with the commentators by excluding a vocational rehabilitationist from the scope of Rule 35 as a matter of law when there is no showing that the examiner is either a physician or a psychologist. See Acosta, supra, and district court cases cited therein.\\nThe policy reasons given for this narrow reading of Rule 35 are persuasive. First, the language of the rule itself specifically limits its application to physicians. See, e.g., Landry, 121 F.R.D. at 401 (\\\"Rule 35's language is self-limiting and cannot be expanded to include examination by non-physicians.\\\") The court's license to broadly interpret discovery rules \\\"does not give courts the authority to substantially expand a rule's scope, insert new language, or create new provisions out of whole cloth____ The rule clearly does not permit a physician or 'any other qualified health professional with appropriate training and experience' to perform the examination.\\\" Comastro v. Tourtelot, 118 F.R.D. 442, 443 (N.D.Ill.1987) (interpreting Federal Rule 35 prior to its 1988 amendment to exclude psychologists). As one court reasoned:\\nGiven the myriad of possible backgrounds \\u2014 clinical, behavioral, or educational psychology; counseling or vocational experts; and degrees ranging from a bachelor's to a Ph.D. \\u2014 expanding Rule 35 would put courts in the difficult business of determining whether a particular individual has received sufficient training to conduct a highly intrusive examination into a party's private life. The current rule obviates the need for additional inquiry and effectively relies upon the clearly defined, rigorous training program provided to [physicians] in medical school and residency programs.\\nId. at 443 n. 1.\\nA second reason for excluding a vocational rehabilitation examination from the scope of Rule 35 is because of the unique nature of the examination contemplated by that rule:\\nAny type of physical or mental examination entails an invasion of personal priva cy, but Rule 35 was adopted because \\\"the need for such examinations in the interest of truth and justice\\\" outweighs the consideration of personal privacy interests____ Concern for the protection of personal privacy is evident in the fact that the rule is limited in scope. It specifically and guardedly limits its applicability to an examination by a physician in cases where the physical or mental condition of a party is in controversy.\\nAcocella v. Montauk Oil Transp. Corp., 614 F.Supp. 1437, 1439 (S.D.N.Y.1985) (citation omitted). Furthermore, parties undergoing physical or mental examinations pursuant to Rule 35 are not entitled to presence of counsel. Pedro, supra. Rule 35 thus provides the only discovery mechanism that enables a party to obtain \\\"unsupervised interrogation,\\\" through a potentially intrusive procedure, of its opponent by its own agent. Acosta, 913 F.2d at 210. Because of this unique situation, the rule contains a specific \\\"good cause\\\" requirement, above and beyond the general relevancy standard imposed by Rule 26(b) for discovery in general, that must be established to compel an examination under Rule 35. Id.\\nSeveral courts have found that this \\\"good cause\\\" requirement is simply not established by the need for the opinion of an independent vocational rehabilitation specialist. For example, if a plaintiff has already been examined by a vocational rehabilitation specialist, a defendant may obtain the results of the examination and provide them to its own expert. Defendant may also depose the plaintiff, depose the plaintiff's expert, and impeach either or both of them with the opinion of its own expert; additionally, defendant may compel examination of plaintiff by a licensed physician, and make the results of that examination available to its vocational rehabilitation specialist. See Acosta, 913 F.2d at 210; Soudelier, 116 F.R.D. at 430.\\nThe facts before us support a reading of Rule 35 that excludes this examination. Defendant has not indicated that his expert's qualifications meet those imposed by the rule, and has not established the good cause required to obtain such an examination even by such a qualified expert. As plaintiff pointed out in his response to defendant's motion for an independent examination:\\nThe defendant, of course, has other discovery devices available to him. He can take the plaintiff's deposition, and in fact has done so. He can send out interrogatories to be answered by the plaintiff, and in fact has done so. He can obtain disclosure of plaintiff's relevant medical records, and in fact has done so. He could have obtained a medical examination of the plaintiff's physical condition. Defendant, in other words, has adequate means to obtain whatever information is necessary to prepare his occupational expert to render an opinion.\\nWe give great weight to the federal interpretation of analogous procedural rules. Edwards v. Young, 107 Ariz. 283, 284, 486 P.2d 181, 182 (1971). Under federal law, three requirements are necessary for a court to order a Rule 35 examination: (1) the party's physical or mental condition must be in controversy; (2) the expert must meet the professional qualifications required; and (3) good cause must be shown. Acosta, 913 F.2d at 208. In this case, although plaintiff's ability to work is clearly at issue, the other two requirements have not been met. The trial court abused its discretion in ordering plaintiff to undergo an examination by a vocational rehabilitation specialist.\\nThe trial court's order granting defendant's motion for an independent examination by a vocational specialist is vacated. In the exercise of our discretion, we deny plaintiff's request for attorneys' fees.\\nBROOKS, P.J., and CONTRERAS, J., concur.\\n. Although contrary cases exist, we find them either distinguishable or unpersuasive. See, e.g., Massey v. Manitowoc Co., 101 F.R.D. 304, 307 (E.D.Pa.1983) (allowing vocational interview by licensed psychologist because rigorous licensing qualifications required in Pennsylvania provide \\\"the necessary safeguards for preventing any abuse of Rule 35,\\\" and allowing plaintiff to be accompanied by a representative); Anson v. Fickel, 110 F.R.D. 184 (N.D.Ind.1986) (following Massey to allow a licensed clinical psychologist to perform a mental exam); Lee v. Gulf Fleet Marine Corp., 110 F.R.D. 307 (E.D.La. 1986) (holding that Rule 35 did not apply to vocational rehabilitation examination; later \\\"overruled\\\" in Soudelier v. Tug Nan Servs., Inc., 116 F.R.D. 429 (E.D.La.1987)).\"}"

arizona/1551555.json

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+"{\"id\": \"1551555\", \"name\": \"JESSE R. PEARCE, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent\", \"name_abbreviation\": \"Pearce v. Territory of Arizona\", \"decision_date\": \"1910-04-02\", \"docket_number\": \"Criminal No. 282\", \"first_page\": \"268\", \"last_page\": \"268\", \"citations\": \"13 Ariz. 268\", \"volume\": \"13\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T21:56:20.594774+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JESSE R. PEARCE, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent.\", \"head_matter\": \"[Criminal No. 282.\\nFiled April 2, 1910.]\\n[108 Pac. 1134.]\\nJESSE R. PEARCE, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent.\\nAPPEAL from a judgment of the District Court of the Third Judicial District, in and for Maricopa County. Edward Kent, Judge.\\nAffirmed.\", \"word_count\": \"94\", \"char_count\": \"572\", \"text\": \"PER CURIAM.\\nAppellant was convicted of murder of the second degree, and appeals. He has made no appearance by counsel, but, as required by the statute, we have carefully examined the record. We find no error therein, and therefore affirm the judgment of the district court.\\nKENT, C. J., not sitting.\"}"

arizona/1591974.json

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+"{\"id\": \"1591974\", \"name\": \"STATE of Arizona, Appellee, v. Larry Lawrence ROWE, Appellant\", \"name_abbreviation\": \"State v. Rowe\", \"decision_date\": \"1977-09-07\", \"docket_number\": \"No. 3650\", \"first_page\": \"283\", \"last_page\": \"285\", \"citations\": \"116 Ariz. 283\", \"volume\": \"116\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:51:40.517329+00:00\", \"provenance\": \"CAP\", \"judges\": \"CAMERON, C. J., STRUCKMEYER, V. C. J., and HAYS and HOLOHAN, JJ., concur.\", \"parties\": \"STATE of Arizona, Appellee, v. Larry Lawrence ROWE, Appellant.\", \"head_matter\": \"569 P.2d 225\\nSTATE of Arizona, Appellee, v. Larry Lawrence ROWE, Appellant.\\nNo. 3650.\\nSupreme Court of Arizona, In Banc.\\nSept. 7, 1977.\\nBruce E. Babbitt, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Crane McClennen, Asst. Attys. Gen., Phoenix, for appellee.\\nRoss P. Lee, Maricopa County Public Defender, Garth V. Smith, Deputy Public Defender, Phoenix, for appellant.\", \"word_count\": \"936\", \"char_count\": \"5856\", \"text\": \"GORDON, Justice:\\nIn April, 1971 appellant was convicted of second degree burglary, a charge to which he had pled guilty. His sentence was suspended for five years, with probation imposed. In June, 1975 appellant pled guilty to a charge of possession of marijuana. Five years probation was imposed for this offense as well. In February, 1976, both probations were revoked. Revocation stemmed from appellant's failure to remain at a prescribed drug rehabilitation program, and from his failure to notify the probation officer of his whereabouts. The trial court sentenced appellant to four to five years for the burglary charge, and from one to ten years for the possession charge. The sentences were to be served consecutively. Appeal was taken from the probation revocation and imposition of those sentences, with two issues addressed to this Court: (1) Did the sentences stem, unlawfully, from appellant's violation of probation rather than from punishment for the original charges? And (2) Did the sentences imposed exceed the statutory maximum? We take jurisdiction pursuant to 17A A.R.S. Sup.Ct. Rules, rule 47(e). The orders revoking probation and the sentences imposed are affirmed as modified herein.\\nThe first issue relates to whether the trial judge gave appellant a harsher sentence because appellant had violated probation than the trial judge would have given appellant for the offense alone. Viewing the facts in a light most favorable to upholding the trial court's actions, State v. Childs, 113 Ariz. 318, 553 P.2d 1192 (1976), we assume that the sentence imposed was not the product of motivations amounting to an abuse of discretion. See State v. Helmick, 112 Ariz. 166, 540 P.2d 638 (1975).\\nA trial judge who'revokes probation must impose a sentence because of the original offense; the sentencing court is without authority to impose punishment for violation of probation alone. See State v. Pietsch, 109 Ariz. 261, 508 P.2d 337 (1973); and State v. Crowder, 103 Ariz. 264, 440 P.2d 29 (1968). However, the discretion which exists at the time a sentence is imposed for the original offense embraces consideration of the fact that defendant failed to avail himself of the opportunity to reform, State v. Robbins, 110 Ariz. 284, 518 P.2d 107 (1974); as well as the nature and circumstances of the crime charged; the moral character and past conduct of the defendant, and his or her general background. State v. Quintana, 92 Ariz. 308, 376 P.2d 773 (1962); State v. Schlarp, 25 Ariz.App. 85, 541 P.2d 411 (1975).\\nThe sentencing proceeding is not a trial in the ordinary sense of the word, and the court \\\"may consider many matters not admissible on the issue of guilt or innocence.\\\" Quintana, supra, 92 Ariz. at 312, 376 P.2d at 775-76, citing State v. Levice, 59 Ariz. 472, 130 P.2d 53 (1942). According to A.R.S. \\u00a7 13-302, the maximum prison sentence allowable for second degree burglary is five years. Appellant was sentenced to serve four to five years for this conviction. The sentence imposed for possession of marijuana, one to ten years, was also within limits set by the Legislature, A.R.S. \\u00a7 36-1002.-05(A).\\nAlthough the judge's comments at sentencing indicate she was concerned with appellant's violations of probation, this was not an improper consideration on her part. Each sentence was imposed for the original offense, but appellant's behavior subsequent to that offense was nevertheless germane to the sentencing court's determination. Two crimes were committed; two sentences were imposed. Subject to the problems discussed further on, the consecutive imposition of those sentences was within the sentencing court's discretion, and no reversible error was committed thereby.\\nThe second issue raised by appellant is whether the sentence imposed, when added to pre-sentence incarceration served, exceeds the permissible statutory maximum. Appellant spent 99 days in jail at various times relating to the burglary charge. He later spent one day in jail when initially arrested for possession of marijuana. Additionally, appellant served 33 days as a condition of probation granted on the marijuana charge, and the trial judge specifically took the day served into consideration at that time.\\nCredit for time served as a condition of probation, and the time served credited by the sentencing judge against such probation, were both resolved contrary to appellant's position in State v. Fuentes, 26 Ariz. App. 444, 549 P.2d 224 (1976), aff'd, 113 Ariz. 285, 551 P.2d 554 (1976). Appellee, State of Arizona, concedes that appellant is entitled to credit for 99 days appellant served when charged with burglary. See Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); Fuentes, supra. The only issue before this Court is how to apply credit. While appellee appears to raise a question relating to propriety of credit against the maximum rather than the minimum sentence imposed, we are not persuaded by the distinction. We conclude that the commencement date of appellant's sentence in No. CR-66511 December 6, 1975, must be calculated to begin 99 days sooner. A.R.S. \\u00a7 13-1717. The issuance of the mandate in this case will constitute a formal modification of the burglary sentence imposed.\\nThe burglary sentence is modified and the order revoking probation, No. CR-66511, is affirmed. Order revoking probation and sentence in CR-85982 affirmed.\\nCAMERON, C. J., STRUCKMEYER, V. C. J., and HAYS and HOLOHAN, JJ., concur.\"}"

arizona/1593925.json

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+"{\"id\": \"1593925\", \"name\": \"Gilberto S. LEON and Mary G. Leon, Appellants, v. Julia M. BYUS, Widow of George A. Byus, Jr., as Personal Representative of the Estate of George A. Byus, Jr., Appellee\", \"name_abbreviation\": \"Leon v. Byus\", \"decision_date\": \"1977-04-14\", \"docket_number\": \"No. 2 CA-CIV 2350\", \"first_page\": \"451\", \"last_page\": \"454\", \"citations\": \"115 Ariz. 451\", \"volume\": \"115\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T23:57:59.616199+00:00\", \"provenance\": \"CAP\", \"judges\": \"HATHAWAY and RICHMOND, JJ., concur.\", \"parties\": \"Gilberto S. LEON and Mary G. Leon, Appellants, v. Julia M. BYUS, Widow of George A. Byus, Jr., as Personal Representative of the Estate of George A. Byus, Jr., Appellee.\", \"head_matter\": \"565 P.2d 1312\\nGilberto S. LEON and Mary G. Leon, Appellants, v. Julia M. BYUS, Widow of George A. Byus, Jr., as Personal Representative of the Estate of George A. Byus, Jr., Appellee.\\nNo. 2 CA-CIV 2350.\\nCourt of Appeals of Arizona, Division 2.\\nApril 14, 1977.\\nMiller, Pitt & Feldman, P. C. by Carter Morey, Tucson, for appellants.\\nGerald Sweeney, Tucson, for appellee.\", \"word_count\": \"1028\", \"char_count\": \"6054\", \"text\": \"OPINION\\nHOWARD, Chief Judge.\\nAppellants, the defendants below, bring this appeal to challenge the trial court's judgment that they should be removed from possession of a piece of real property which the court found belonged to appellee, plaintiff below.\\nThe applicable facts are as follows: On May 15, 1953, the appellants and appellee entered into a contract for the sale of real estate. The contract provided that appellants pay a total of $6,150.29 for the residential property, assuming payments on a first mortgage in the amount of $2,454.77, on a second mortgage in the amount of $1,250.00 and pay the remaining balance on the contract in monthly installments beginning June 15, 1953. Appellants made payments on the first mortgage to Tucson Federal Savings and Loan Association until the mortgage was satisfied in June 1962. They also made approximately eight payments on the second mortgage and that mortgage obligation was settled by compromise in December 1967. Appellants also made some payments on the contract debt to the appellee after May 1953 and before the spring of 1954. The last payment on the contract was made by appellants to appellee sometime in the spring or summer of 1954, no payment having been made on the con tract since that time. Mr. Leon, informed appellee's husband that he could not make the payments on the property at that time. The appellants occupied the house continuously since May 1953, have paid the property taxes continuously since 1953 and made improvements to the property.\\nIn May 1974, appellee filed suit against appellants seeking to terminate their interest .in the property and to remove them from possession. Appellants asserted the statute of limitations under A.R.S. \\u00a7 12-526 as a defense to the claim as well as laches and filed a counterclaim in adverse possession. Appellants on appeal claim the trial court erred since appellee's claim was barred by the statute of limitations or by laches and that they were entitled to judgment as a matter of law. We do not agree.\\nA.R.S. \\u00a7 12-526 mandates that the person in possession of the real property for the statutory period express an \\\"adverse\\\" interest. \\\"Adverse\\\" or \\\"hostile\\\" as applied to possession of realty does not connote ill will or evil intent, but merely a showing that the one in possession of the land claims exclusive rights thereto and denies by word or act the owner's title. Tenney v. Luplow, 103 Ariz. 363, 442 P.2d 107 (1968); Rorebeck v. Christe, 1 Ariz.App. 1, 398 P.2d 678 (1965). As a general rule, a possession in its inception permissive, or otherwise not hostile, does not become hostile without a clear disclaimer of the true owner's title and a claim of adverse right brought home to him. Gospel Echos Chapel, Inc. v. Wadsworth, 19 Ariz.App. 382, 507 P.2d 994 (1973). The trial record does not show a definite disclaimer of appellee's rights in the property. There was testimony Mr. Leon had suffered a work-related injury in 1954 and had told appellee's husband that he had no money to pay him then; and that appellee's husband told him he could hold off since he was not pressed for the money and could wait. Mr. Leon also testified that he attempted to mortgage the property in 1974 and that some of the proceeds he would have obtained from the mortgage loan would have gone towards paying off the contract with appellee. The testimony shows that appellants were never in adverse possession of the property since they were permitted to stay there without paying, and never asserted any adverse right to the property, but rather always recognized their interest as subservient to that of appellee.\\nAppellants' other claim is that laches bars the action which was filed more than twenty years after the default originated. Laches requires a lack of diligence on the part of the plaintiff and injury or prejudice to the defendant due to such lack of diligence. Financial Associates, Inc. v. R & R Realty Co., 25 Ariz.App. 530, 544 P.2d 1131 (1976); Longshaw v. Corbitt, 4 Ariz. App. 408, 420 P.2d 980 (1966); Decker v. Hendricks, 97 Ariz. 36, 396 P.2d 609 (1964). Mere passage of time is not prejudice. Weller v. Weller, 14 Ariz.App. 42, 480 P.2d 379 (1971). Appellants argue that they have paid the property taxes for the twenty-year period and have made improvements to the property. The fact that the tax payments were made is not the sort of prejudice envisioned by the doctrine of laches. They lived in the home for twenty years, in effect rent free, and the fact that they made the tax payments is not \\\"prejudicial\\\". Laches deals with the situation where the rights of third persons are involved and the situation has materially changed for the defendant due to plaintiff's delay in asserting his rights. Payment of the taxes has not created such a situation. However, the argument with regard to the improvements is more noteworthy. As stated in 27 Am.Jur.2d, Equity \\u00a7 171:\\n\\\"Where the suit has arisen out of a sale or conveyance of real estate, the issue as to prejudice vel non may be determined in view of a showing as to whether the value of the property in dispute has changed during the period of the complainant's default. If the value of the land has not materially changed, it may be concluded that the defense of laches is not established, [footnotes omitted]\\\"\\nHowever, the testimony before us shows that the premises were purchased in 1954 for $6,150.29 and appellants testified that the market value of the property in 1975 was less than $6,000 despite the improvements alleged to have been made. We do not believe that the defense of laches was adequately shown to bar the claim.\\nJudgment affirmed.\\nHATHAWAY and RICHMOND, JJ., concur.\"}"

arizona/1595485.json

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+"{\"id\": \"1595485\", \"name\": \"The STATE of Arizona, Appellee, v. Michael James MULALLEY, Appellant\", \"name_abbreviation\": \"State v. Mulalley\", \"decision_date\": \"1980-09-11\", \"docket_number\": \"No. 4750\", \"first_page\": \"92\", \"last_page\": \"98\", \"citations\": \"127 Ariz. 92\", \"volume\": \"127\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:02:36.282088+00:00\", \"provenance\": \"CAP\", \"judges\": \"STRUCKMEYER, C. J., HOLOHAN, V. C. J., and HAYS and GORDON, JJ., concur.\", \"parties\": \"The STATE of Arizona, Appellee, v. Michael James MULALLEY, Appellant.\", \"head_matter\": \"618 P.2d 586\\nThe STATE of Arizona, Appellee, v. Michael James MULALLEY, Appellant.\\nNo. 4750.\\nSupreme Court' of the State of Arizona, In Banc.\\nSept. 11, 1980.\\nRobert K. Corbin, Atty. Gen. by William J. Schafer, III, and Gerald R. Grant, Asst. Attys. Gen., Phoenix, for appellee.\\nJ. Douglas McVay, Phoenix, for appellant.\", \"word_count\": \"3125\", \"char_count\": \"18830\", \"text\": \"CAMERON, Justice.\\nOn 23 July 1979, defendant Michael James Mulalley was convicted by a jury of two violations of A.R.S. \\u00a7 13-1206, dangerous or deadly assault by a prisoner. Immediately after the guilty verdicts, the trial court followed the mandatory sentencing provision of A.R.S. \\u00a7 13-1206 and sentenced Mulalley to two life terms. As required by the statute, these sentences were made to run consecutively to each other and to all other sentences the defendant was then serving. Mulalley now appeals both conviction and sentence. We have jurisdiction pursuant to A.R.S. \\u00a7 13-4031.\\nThe defendant raises three issues on appeal:\\n1. Did the trial court err in refusing to grant defendant's motion for mistrial on the basis of the inadmissibility of evidence of the charge for which the defendant was being tried at the trial in which the assault occurred?\\n2. Was the sentence imposed upon the defendant cruel and unusual, in violation of the Eighth Amendment of the United States Constitution and Article 2, Section 15 of the Arizona Constitution?\\n3. Does A.R.S. \\u00a7 13-1206 violate the equal protection clause of the Fourteenth Amendment to the Constitution of the United States?\\nThe following facts are necessary to a resolution of these issues. On 23 January 1979, some six months prior to trial in the instant case, Mulalley was on trial in Mari-copa County Superior Court for an unrelated felony. Shortly after a guilty verdict was pronounced, the defendant, who had been seated with his lawyer at a table in front of the judge's bench, jumped up from this table and ran toward an exit door behind the bench. Deputy Sheriff Nibouar, who had been seated behind the defendant and his lawyer, immediately pursued Mulal-ley. The defendant grabbed Court Clerk Cari Faust by the hair and pulled her out of her chair and onto the floor. With his other hand, Mulalley groped among the papers on Faust's desk, where he found a pair of heavy, pointed desk scissors. He brandished the scissors at Nibouar. Nibouar backstepped to avoid being hit, tripped, and fell. When he recovered his footing, Nibo-uar faced Mulalley, who threatened to harm Faust if Nibouar came nearer. Nibouar jumped Mulalley, disarmed him and flattened him over Faust's desk. She moved away, and, with the assistance of two jurors and a county attorney, Deputy Nibouar restrained Mulalley in leg irons and handcuffs. In the scuffle, Nibouar suffered a small wound in the web of his hand which did not require medical attention. Clerk Faust's wounds consisted of scratches on her face, small cuts on her left forearm, and bruises on her back.\\nAt Mulalley's trial on the charge of dangerous assault by a prisoner, the State called as witnesses Deputy Nibouar, Clerk Faust, jurors James Sears and J. M. Bennett, and Deputy County Attorney Michael Donovan. All of these witnesses had personally observed or had been involved in the events which formed the basis for the charge. In addition, the State introduced photographic evidence of Nibouar's and Faust's injuries and the scissors Mulalley seized from Faust's desk. From jury verdicts and judgments of guilt and sentencing thereon, Mulalley appeals.\\nDENIAL OF MISTRIAL\\nThrough the testimony of Nibouar, Faust, Sears, and Donovan, the State established that the alleged assault had taken place while Mulalley was in court for trial on some unspecified criminal charge. During direct examination of the last prosecution witness, J. M. Bennett, the jury heard the following testimony:\\n\\\"Q Directing your attention to January 23 of this year, at that time were you serving as a juror in Maricopa County Superior Court?\\n\\\"A Yes, I was.\\n\\\"Q Do you recall where you were on that date in your juror duties, where you were located in the court building?\\n\\\"A Yes, I was in the fifth seat from the back row.\\n\\\"Q Do you recall where that courtroom was?\\n\\\"A Yes. It was on this wing on the far side.\\n\\\"Q At that time in your juror duties, could you tell us what type of proceedings you were involved in?\\n\\\"A There was a rape case, assault and battery.\\n\\\"Q Do you recall the name of the person who was involved in that trial?\\n\\\"A Yes, I do.\\n\\\"Q Could you tell us what that name was, please?\\n\\\"A Michael James Mulalley.\\\"\\nFollowing this testimony, the defense made a motion for mistrial, out of the jury's hearing. Both the defense and the court clearly accepted the prosecutor's avowal that he had not intended for Bennett to refer to the crimes for which Mulalley was on trial in January. After a recess to consider the defense motion, the trial court ruled that Bennett's testimony concerning the nature of the January charges was inadmissible. The court ordered the testimony stricken from the record and instructed the jury to disregard Bennett's comments \\\"with regard to what the charges were or the crimes were that were involved in the previous trial.\\\" The court denied the defense motion for a mistrial.\\nThe defendant argues that reference to the nature of the crimes for which he was being tried in January was so prejudicial that it necessitated a mistrial. The State argues that the reference was admissible and therefore could not serve as grounds for mistrial.\\nWe agree with the trial court that testimony concerning the charge for which the defendant was previously tried was error. State v. Tuell, 112 Ariz. 340, 541 P.2d 1142 (1975); State v. Moore, 108 Ariz. 215, 495 P.2d 445 (1972). It was proper to inform the jury that the assault was committed while the defendant was in court for another offense. A recognized exception to the general rule that evidence of other crimes is not admissible in the trial of a separate and distinct crime is the \\\"complete story exception.\\\" State v. Myers, 117 Ariz. 79, 570 P.2d 1252 (1977). The jury does not need to know, however, the nature of the offense. In the instant case, the jury could have decided that he was a rapist and have convicted him for the crime charged on lesser evidence than they might normally require. The trial court was correct in striking the comment and instructing the jury to disregard it. State v. Greer, 118 Ariz. 349, 576 P.2d 1004 (App.1978).\\nWe believe, however, that even if we were to hold that the error was not cured by the trial court's striking of the evidence and instructing the jury to disregard the statement, we need not reverse. Given the overwhelming and uncontroverted evidence against the defendant, we find that the error was not prejudicial and that the jury, beyond a reasonable doubt, would still have found the defendant guilty even if the prejudicial testimony had not been heard. Although we find error, we do not need to reverse. State v. Sustaita, 119 Ariz. 583, 583 P.2d 239 (1978).\\nCRUEL AND UNUSUAL PUNISHMENT\\nThe defendant challenges the constitutionality of A.R.S. \\u00a7 13-1206 on the grounds that the statute mandates a cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States and Article 2, Section 15 of the Arizona Constitution. Our statute reads:\\n\\\"Dangerous or deadly assault by prisoner \\\"A person, while in the custody of the department of corrections, a law enforcement agency or county or city jail, who commits an assault using or exhibiting a deadly weapon or dangerous instrument or who intentionally or knowingly inflicts serious physical injury upon another person is guilty of a felony and upon conviction shall be sentenced to life imprisonment and shall not be eligible for suspension or commutation of sentence, probation, parole or release on any other basis until such person has served not less than twenty-five years. A sentence imposed pursuant to this section shall be consecutive to any other sentence presently being served or imposed upon the defendant.\\\" A.R.S. \\u00a7 13-1206.\\nCourts first look to the statute in determining whether a sentence is excessive. It has been stated, as to sentencing, the\\n\\\"function of the legislature is primary, its exercise fortified by presumptions of right and legality, and is not to be interfered with lightly, nor by any judicial conception of wisdom or propriety.\\\" Weems v. United States, 217 U.S. 349, 379, 30 S.Ct. 544, 554, 54 L.Ed. 793, 803 (1910).\\nThis principle of judicial restraint means that, in the vast majority of cases, we will not disturb a sentence which is within the statutory limits. See, e. g., State v. Pacheco, 121 Ariz. 88, 588 P.2d 830 (1978); McKellar v. Arizona State Department of Corrections, 115 Ariz. 591, 566 P.2d 1337 (1977); State v. Stadie, 112 Ariz. 196, 540 P.2d 668 (1975), cert. den. 425 U.S. 974, 96 S.Ct. 2174, 48 L.Ed.2d 798 (1977). See also Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).\\nThe fact that a sentence is prescribed by statute, however, \\\"does not conclusively establish the punishment's constitutionality, for the Eighth Amendment is a limitation on both legislative and judicial action.\\\" Ralph v. Warden, 438 F.2d 786, 788-89 (4th Cir. 1970), cert. den. 408 U.S. 942, 92 S.Ct. 2846, 33 L.Ed.2d 766 (1972). We have said that this court might\\n\\\"find a particular penalty so severe as to shock the conscience of society and require a holding that it violates the constitutional mandate. Such holdings will have to be made on a case-by-case approach which will conform to the general mores of society at the time of the decisions.\\\" State v. Davis, 108 Ariz. 335, 337, 498 P.2d 202, 204 (1972). See also, Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958).\\nAs Davis, supra, suggests, in order to find a statutorily mandated sentence cruel and unusual, we must determine, not whether it offends our own perceptions of decency, but whether it offends those of contemporary society. See Downey v. Perini, 518 F.2d 1288 (6th Cir.) vacated mem. 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975). \\\"[T]he moral sense of the community\\\" may be shocked when a punishment is overly severe or otherwise not \\\"proportionate to the type of crime.\\\" State v. Taylor, 82 Ariz. 289, 294, 312 P.2d 162, 166 (1957). Accord, United States v. Washington, 578 F.2d 256 (9th Cir. 1978); State v. Frietas, -Haw.-, 602 P.2d 914 (1979); Norris v. State, Ind., 394 N.E.2d 144 (1979); Workman v. Commonwealth, 429 S.W.2d 374 (Ky. 1968); Commonwealth v. Jackson, 369 Mass. 904, 344 N.E.2d 166 (1976).\\nIn evaluating the proportionality of a criminal sanction, we will consider not only the nature of the crime and of the offender, Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), cert. den. 415 U.S. 938, 94 S.Ct. 1454, 39 L.Ed.2d 495 (1974); In re Lynch, 8 Cal.3d 410, 503 P.2d 921, 105 Cal.Rptr. 217 (1972); People v. Broadie, 37 N.Y.2d 100, 332 N.E.2d 338, 371 N.Y.S.2d 471 (1975), but we will compare it with punishments for the same crime in other jurisdictions and for other crimes within our own jurisdiction. Because the \\\"enactments of legislative bodies serve as some index of community standards and values,\\\" Carmona v. Ward, 436 F.Supp. 1153, 1165 (S.D. N.Y.1977), rev'd on other grounds, 576 F.2d 405 (2nd Cir. 1978), cert. den. 439 U.S. 1091, 99 S.Ct. 874, 59 L.Ed.2d 58 (1979), they help give objective content to the \\\"conscience of society.\\\" In comparing the sentence actually imposed with sanctions provided in other jurisdictions, we do not, of course, seek to conform our statutes \\\"to the 'majority rule' or the least common denominator of penalties nationwide.\\\" People v. Williams, 101 Cal.App.3d 711, 724, 161 Cal.Rptr. 830, 837 (1980). See also Rummel v. Estelle, supra. Rather we seek evidence of what sanctions are currently considered acceptable in our society for the crime committed.\\nOur survey of other jurisdictions shows that five states would mandate a life sentence upon conviction for the assault at issue here; Colorado, one of the five, would require that the sentence be served consecutively and without parole. We note manda-toriness does not in itself constitute cruel and unusual punishment, where the term given is not unacceptably disproportionate. United States v. Chow, 398 F.2d 596 (2nd Cir. 1968); State v. Williams, 115 Ariz. 288, 564 P.2d 1255 (App.1977); Commonwealth v. Jackson, supra. Six more states authorize a maximum life sentence. Nebraska provides a 50 year maximum; Mississippi, a 30 year maximum; and Rhode Island, a 25 year maximum. Georgia mandates 20 years without parole, and Oklahoma mandates the same term, with parole a possibility.\\nThus, while the life sentences required by A.R.S. \\u00a7 13-1206 would not be imposed in a majority of jurisdictions, it is considered proportionate in at least a dozen states. We do not believe that the sanction applied to Mulalley was so disproportionate as to shock \\\"the general mores of society.\\\" State v. Davis, supra, 108 Ariz. at 337, 498 P.2d at 204.\\nOur survey of this state's criminal code shows that our legislature has provided a mandatory life sentence for only two crimes: the form of assault of which Mulal-ley was convicted, A.R.S. \\u00a7 13-1206, and first degree murder, A.R.S. \\u00a7 13-703. While the life term for murder is imposed without possibility of parole for twenty-five years, A.R.S. \\u00a7 13-703, it may be less severe than that mandated by A.R.S. \\u00a7 13-1206, because it may be commuted and because it may be served concurrently. A.R.S. \\u00a7 13-1206 requires that sentences pursuant to that section be served consecutively, and it precludes commutation.\\nIt also appears that a number of crimes that appear to us to be similar in gravity to dangerous assault by a prisoner are punished substantially less severely by our criminal code. Thus, Class 2 felonies for which the presumptive sentence is seven years and the range of permissible sentences is 5.25 to 14 years, A.R.S. \\u00a7 13-701, include the following: second degree murder, A.R.S. \\u00a7 13-1104; kidnapping, A.R.S. \\u00a7 13-1304; sexual assault (rape), A.R.S. \\u00a7 13-1406; first degree burglary (deadly weapon), A.R.S. \\u00a7 13-1508; arson of an occupied structure, A.R.S. \\u00a7 13-1704; and armed robbery, A.R.S. \\u00a7 13-1904, and if A.R.S. \\u00a7 13-1206 did not exist, Mulalley could have been sentenced within a range of 20-40 years, two-thirds of the sentence to be served before he could be eligible for release on any basis. This range is based on the legislated punishment for aggravated assault, A.R.S. \\u00a7 13-1204, enhanced by the dangerous and repetitive offender provision, A.R.S. \\u00a7 13-604.\\nWhile it is true that A.R.S. \\u00a7 13-1206 mandates the most severe prison sentence available in our criminal code, that no other conduct not involving homicide requires a life sentence and equally grave crimes are punished less severely, and that a substantially similar and possibly more dangerous crime is punished much less severely, it does not follow that A.R.S. \\u00a7 13-1206 violates the federal and state constitutions. Dispro-portionality\\n\\\"is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty 'out of all proportion to the offense.' \\\" In re Lynch, supra, 8 Cal.3d at 423-24, 503 P.2d at 930, 105 Cal.Rptr. at 226.\\nConsidering the gravity of the offense proscribed in A.R.S. \\u00a7 13-1206, and the severity with which a number of our sister states would punish one in the defendant's situation, we find that the life sentence mandated by the statute is not so disproportionate as to violate the prohibitions against cruel and unusual punishment in our state and federal constitutions.\\nWe note, however, that the judge sentenced the defendant to two terms of life imprisonment to be served consecutively. Our general \\\"enhancement statute\\\" states:\\n\\\"Convictions for two or more offenses not committed on the same occasion but consolidated for trial purposes, may, at the discretion of the state, be counted as pri- or convictions for purposes of this section. Convictions for two or more offenses committed on the same occasion shall be counted as only one conviction for purposes of this section.\\\" A.R.S. \\u00a7 13-604(H).\\nWere these separate offenses occurring at different times, we would hold that the court was correct in sentencing the defendant to two consecutive life sentences. While admittedly not strictly on point, we believe that A.R.S. \\u00a7 13-604(H) indicates the intention of the legislature that \\\"spree offenders\\\" are to be treated differently. We believe the trial court erred in its belief that the two life sentences, based upon two crimes \\\"committed upon the same occasion,\\\" had to be consecutive. The defendant will therefore have to be resentenced to two life sentences to be served concurrently but consecutive to any other sentences imposed.\\nEQUAL PROTECTION\\nThe defendant also argues that A.R.S. \\u00a7 13-1206 violates the equal protection of the laws guaranteed him by the Fourteenth Amendment to the United States Constitution because it arbitrarily mandates a life sentence for a class of persons which the state has no rational basis to differentiate from other lawbreakers.\\nThe class defined by the statute is made up of persons who commit dangerous or deadly assaults while in custody. In order to invalidate this legislative classification, we must find that it bears no rational relationship to a legitimate purpose. Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974). See also State v. Gray, 122 Ariz. 445, 595 P.2d 990 (1979).\\nThe state certainly has a legitimate interest in protecting others, including persons who are employed or incarcerated by law enforcement and corrections agencies, from dangerous assaults by those in custody. It is not irrational to believe that this type of conduct should be severely punished. Such beliefs have prompted legislatures to provide extra penalties for violent crimes committed by those in custody. People v. Gardner, 56 Cal.App.3d 91, 128 Cal. Rptr. 101 (1976). We find that A.R.S. \\u00a7 13-1206 does not violate the defendant's Fourteenth Amendment equal protection rights by being arbitrary or capricious.\\nThe defendant's convictions are hereby affirmed, and the matter is remanded for resentencing within 60 days from the issuance of the mandate in this case and in accordance with this opinion.\\nSTRUCKMEYER, C. J., HOLOHAN, V. C. J., and HAYS and GORDON, JJ., concur.\"}"

arizona/1598728.json

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+"{\"id\": \"1598728\", \"name\": \"STATE of Arizona, Petitioner, v. The Honorable J. Richard HANNAH, Judge of the Superior Court, Division Twelve, in and for the County of Pima, State of Arizona, Respondent, and O'Neal Harris, Real Party in Interest\", \"name_abbreviation\": \"State v. Hannah\", \"decision_date\": \"1980-09-10\", \"docket_number\": \"No. 14869-PR\", \"first_page\": \"575\", \"last_page\": \"577\", \"citations\": \"126 Ariz. 575\", \"volume\": \"126\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:28:10.794207+00:00\", \"provenance\": \"CAP\", \"judges\": \"STRUCKMEYER, C. J., HOLOHAN, Y. C. J., and HAYS and GORDON, JJ., concur.\", \"parties\": \"STATE of Arizona, Petitioner, v. The Honorable J. Richard HANNAH, Judge of the Superior Court, Division Twelve, in and for the County of Pima, State of Arizona, Respondent, and O\\u2019Neal Harris, Real Party in Interest.\", \"head_matter\": \"617 P.2d 527\\nSTATE of Arizona, Petitioner, v. The Honorable J. Richard HANNAH, Judge of the Superior Court, Division Twelve, in and for the County of Pima, State of Arizona, Respondent, and O\\u2019Neal Harris, Real Party in Interest.\\nNo. 14869-PR.\\nSupreme Court of Arizona, In Banc.\\nSept. 10, 1980.\\nStephen D. Neely, Pima County Atty., by D. Jesse Smith, Deputy County Atty., Tucson, for respondent.\\nArmand S\\u00e1lese, Tucson, for real party in interest.\", \"word_count\": \"1268\", \"char_count\": \"7665\", \"text\": \"CAMERON, Justice.\\nWe granted this petition for review of a decision and opinion of the Court of Appeals, Division Two, State v. Hannah, 126 Ariz. 578, 617 P.2d 530 (App.1980). We have jurisdiction pursuant to A.R.S. \\u00a7 12\\u2014120.24 and Rule 31.19, Arizona Rules of Criminal Procedure, 17 A.R.S.\\nWe must answer only one question: May a prior felony conviction be used for enhanced punishment pursuant to A.R.S. \\u00a7 13-604(B), if the prior conviction is obtained after the commission of the principal offense?\\nThe facts necessary for a disposition of this matter on appeal are as follows. Defendant O'Neal Harris was charged with three Class 2 felonies, all alleged to have been committed on 10 August 1979. At the time of these offenses, defendant had previously committed four forgeries on 2 and 3 November 1978, but he was not convicted of these offenses until 22 October 1979. The county attorney timely alleged these offenses as prior convictions prior to trial. The trial court dismissed these allegations on the ground that prior convictions may only enhance punishment when the conviction of the prior offense occurs prior to the commission of the principal offense.\\nThe State sought and was granted relief by the Court of Appeals in a special action which vacated the trial court's order dismissing the allegation of prior convictions. Defendant petitioned this court to review the decision of the Court of Appeals. We granted the petition in order to settle the law which has become confused as a result of the adoption of the new criminal code which became effective 1 October 1978.\\nA.R.S. \\u00a7 13-604 provides for the enhanced punishment of dangerous and repetitive offenders. Paragraph B reads:\\n\\\"B. Except as provided in subsection G of this section, a person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of a class 2 or 3 felony, whether a completed or preparatory offense and who has previously been convicted of any felony shall be sentenced to imprisonment for not less than the sentence and not more than three times the sentence authorized by \\u00a7 13-701 for the offense for which the person currently stands convicted, and shall not be eligible for suspension or commutation of sentence, probation, pardon or parole or release on any other basis until not less than two-thirds of the sentence imposed by the court has been served. Upon imposing a sentence pursuant to this subsection the court shall impose as a presumptive term three-fourths of the median of the allowable range. The presumptive term may be mitigated or aggravated within the range prescribed under this subsection pursuant to the terms of \\u00a7 13-702, subsections C, D and E.\\\" (emphasis supplied)\\nAs Harris' principal offenses are Class 2 felonies, and the prior convictions are felonies, A.R.S. \\u00a7 13-604(B) governs his sentencing.\\nIt is noted that A.R.S. \\u00a7 13-604 covers many aspects of the sentencing of the persistent and repetitive offender. \\u00a7 13-604(A), for example, is both an enhanced punishment section as well as a statute of limitations (10 years), on the use of prior offenses in sentencing. \\u00a7 13-604 is not a true recidivist statute as that term is commonly understood. Recidivist statutes have usually been construed to mean that the defendant must have been convicted of the crime before the second crime was committed in order for the statute to apply. See Annotation, 24 A.L.R.2d 1247. The purpose of such recidivist statutes is to deter crime by serving as a warning to first offenders and to encourage their reformation. Our state legislature has clearly indicated that it was concerned not only with deterring the commission of crime, but also with punishing the persistent or repetitive offender regardless of when the defendant committed the other offense. The statute, \\u00a7 13-604(B), refers to prior convictions and not prior offenses. So long as the defendant was convicted of the other offense before the conviction in the principal offense, the enhanced punishment provisions of \\u00a7 13-604(B) are applicable. In fact, subsection H of \\u00a7 13-604 makes it clear that conviction of the other offense need not occur prior to the commission of the principal offense:\\n\\\"H. Convictions for two or more offenses not committed on the same occasion but consolidated for trial purposes, may, at the discretion of the state, be counted as prior convictions for purposes of this section. Convictions for two or more offenses committed on the same occasion shall be counted as only one conviction for purposes of this section.\\\"\\nDefendant argues that this statute should be construed to mean that when two offenses are consolidated for trial, their convictions may be counted as separate prior convictions for enhancement of later crimes. We disagree. Subsection H excludes the \\\"spree offender\\\" who commits more than one crime in a connected series of events \\\"on the same occasion,\\\" but includes successive but separate crimes even though the defendant could be convicted of both in a single trial. The Comment to \\u00a7 703(F), now \\u00a7 604(H), supports this interpretation:\\n\\\"Section 703 replaces A.R.S. \\u00a7 13-1649 and 13-1650.\\n\\\"The code seeks to strengthen the sanctions of the criminal justice 'system' by isolating the dangerous and repetitive criminal for longer periods of incarceration. For example, if the offender commits two robberies on two different days and the felonies are consolidated for trial, a conviction for the first robbery may be used to invoke the provisions of \\u00a7 703 in the event the felon is convicted on the second count. However, if the offender commits a robbery, and in order to escape he or she kidnaps the victim, a consolidation of the two felonies with a conviction on the robbery would not subject this 'spree offender' to the provisions of \\u00a7 703 in the event of his conviction for the kidnapping. \\\" Arizona Criminal Code Commission, Arizona Revised Criminal Code \\u00a7 703, at 96-97 (1975). (emphasis supplied)\\nSection 604(B) does not require that the conviction of the prior offense precede the commission of the principal offense. \\u00a7 604(B) merely requires a defendant to have \\\"previously been convicted.\\\" Defendant, however, relies on our prior case of State v. Lopez, 120 Ariz. 607, 587 P.2d 1184 (1978), to support his position that the prior conviction must be obtained before the commission of the second offense in order to be used to enhance the punishment for the second crime. We disagree.\\nThe statute at issue in Lopez, supra, was quite different from the one we consider here. Former A.R.S. \\u00a7 13-1649(A) stated:\\n\\\"[a] person who, having been previously convicted commits any crime after such conviction, shall be punished upon conviction of such subsequent offense as follows \\\" (emphasis supplied)\\nIt clearly provided that the second offense must occur after the conviction upon the first offense. The present statute is not so restricted.\\nWe affirm the decision of the. Court of Appeals. The order of the trial court dismissing the allegation of prior conviction is set aside, and the matter is remanded for further proceedings consistent with this opinion.\\nSTRUCKMEYER, C. J., HOLOHAN, Y. C. J., and HAYS and GORDON, JJ., concur.\"}"

arizona/1598763.json

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+"{\"id\": \"1598763\", \"name\": \"VALLEY VENDORS CORPORATION, an Arizona Corporation, Plaintiff-Appellant, v. CITY OF PHOENIX, a Municipal Corporation, Defendant-Appellee\", \"name_abbreviation\": \"Valley Vendors Corp. v. City of Phoenix\", \"decision_date\": \"1980-07-29\", \"docket_number\": \"No. 1 CA-CIV 4250\", \"first_page\": \"491\", \"last_page\": \"495\", \"citations\": \"126 Ariz. 491\", \"volume\": \"126\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:28:10.794207+00:00\", \"provenance\": \"CAP\", \"judges\": \"HAIRE and JACOBSON, JJ., concur.\", \"parties\": \"VALLEY VENDORS CORPORATION, an Arizona Corporation, Plaintiff-Appellant, v. CITY OF PHOENIX, a Municipal Corporation, Defendant-Appellee.\", \"head_matter\": \"616 P.2d 951\\nVALLEY VENDORS CORPORATION, an Arizona Corporation, Plaintiff-Appellant, v. CITY OF PHOENIX, a Municipal Corporation, Defendant-Appellee.\\nNo. 1 CA-CIV 4250.\\nCourt of Appeals of Arizona, Division 1, Department C.\\nJuly 29, 1980.\\nRehearing Denied Sept. 4, 1980.\\nReview Denied Sept. 23, 1980.\\nTaylor & Petica, P. C. by Ron Petica, Scottsdale, for plaintiff-appellant.\\nAndy Baumert, City Atty., and Philip M. Haggerty, Asst. City Atty., Phoenix, for defendant-appellee.\", \"word_count\": \"2062\", \"char_count\": \"12889\", \"text\": \"OPINION\\nCONTRERAS, Judge.\\nThis is an appeal from a judgment dismissing appellant's complaint filed against the City of Phoenix. The complaint alleged a discriminatory assessment of sales and use taxes and double taxation. We conclude that appellant did not exhaust its administrative remedies prior to filing suit against the City in superior court and, for this reason, the trial court properly dismissed the complaint.\\nAppellant is a Phoenix business that sells various items, such as food, beverages and cigarettes through coin-operated vending machines. An audit conducted by the City Treasurer concluded that appellant was liable to the City for $8,087.08 in taxes. In a formal assessment letter, appellant was advised of the liability and told that it could either pay the tax or pay it under protest and request a hearing to challenge the assessment. Following a meeting among appellant, its accountant, the City Treasurer, the City Auditor and others, appellant's assessment was reduced to $5,091.82. A hand-delivered letter of May 28, 1977, advised appellant of this decision and again informed appellant of various administrative remedies available to it. The following day, May 24, the City was served with the complaint, which had been filed on May 17. The complaint, in three counts, sought: (1) that the sales tax assessment against appellant be declared void, illegal and unconstitutional, and asked the court to enjoin its assessment; (2) that such assessment be declared void as an illegal and unconstitutional tax on a tax and enjoined; and (3) that the assessment of the City's use tax be declared void, illegal unconstitutional and enjoined.\\nThe City requested, and received, additional time within which to respond and filed a Motion to Dismiss the Complaint. The Motion was based on two grounds: (1) the unavailability of injunctive or declaratory relief against the assessment or collection of taxes, and (2) the trial court's lack of jurisdiction in light of appellant's failure to exhaust its administrative remedies. The Motion was granted without discussion by the court and judgment entered. This appeal followed.\\nSection 14-29 of the Phoenix City Code provides a procedure for a taxpayer to challenge his assessment. A taxpayer may appeal an assessment by filing a petition for a hearing with the City Auditor within 30 days after receiving a formal assessment notice. \\\"The petition shall set forth the reasons why such hearing, correction or re-determination should be granted and the amount in which the tax (penalty or interest, or both) should be reduced. The City Auditor shall promptly consider the petition and shall grant a hearing, if requested.\\\" Id At the hearing, the taxpayer may be represented by counsel and has the right to present witnesses and evidence on his behalf. Phoenix City Code \\u00a7 14-29(g) further provides in part:\\nAfter payment of any tax, penalty or interest under protest verified by oath, a taxpayer may bring action against the Collector in the Superior Court of the County of Maricopa for the recovery of the tax, interest or penalty so paid under protest. The action shall not be commenced more than twenty days after the order or decision of the hearing officer or designee is received by the petitioner, and failure to bring the action within such twenty days shall constitute a waiver of the protest and a waiver of all claims against the City arising from the alleged illegality in the tax, penalties and interest so paid. No grounds of illegality of the tax shall be considered by the court other than those set forth in the petition filed with the City Auditor, but payments of taxes made under protest subsequent to the original protested item and prior to filing the action within the twenty days may be included or incorporated into the same action.\\nUnder normal circumstances, the provisions of section 14-29 must be followed before an action can be brought in superior court. See Univar Corp. v. Phoenix, 122 Ariz. 220, 594 P.2d 86 (1979). Appellant chose not to comply with section 14-29 prior to filing its suit and contends that it was not required to exhaust these available administrative remedies.\\nAppellant first argues that it is exempt from the general rule requiring exhaustion of administrative remedies because it was lulled into a belief that administrative review would not be required. This assertion is based on the affidavit of Mr. Art Kaufman, president of Valley Vendors Corporation, which stated, in part:\\nOn May 11, 1977, he [Kaufman] and Clark Wellever, a Valley Vendors employee, had a hearing with the City Treasurer, City Auditor, City Auditor's Supervisor, and another individual who at this time he does not recall, wherein he (Kaufman) advised the City he did not agree with the assessments, and intended to institute suit to oppose them in their entirety. The City Treasurer thereafter stated or clearly indicated to him at that time that no further administrative hearings nor payment in advance would be necessary if such suit was instituted.\\nAn affidavit was filed by the City Treasurer that denied making this representation.\\nAppellant has not directed our attention to any authority for the proposition that the City Treasurer has the power to waive the codified law of the City of Phoenix. We have reviewed the City Code and can find no grant of such authority. Section 14-29(c) does allow the City Auditor to extend, in his discretion, the time for filing a petition for a hearing. Beyond this, the Code is explicit in requiring that there be compliance with its established administrative procedures. For these reasons, we reject appellant's \\\"lulling\\\" argument.\\nAppellant next contends that it was not required to follow the city's administrative procedures because such procedures may be avoided, and judicial relief immediately sought, when a taxpayer complains of a taxing authority's discriminatory practices and when administrative procedures are inadequate. Appellant's contention is based on our supreme court's decision in Southern Pacific Co. v. Cochise County, 92 Ariz. 395, 377 P.2d 770 (1963). In Southern Pacific, the plaintiff sued to recover taxes paid under protest and sought to enjoin future discriminatory assessments arising from the county's alleged systematic underevaluation practices. The county argued that Southern Pacific's claims were beyond the scope of its exclusive statutory appeal remedy. This remedy was limited to a determination by the superior court of the taxpayer's property value. See A.R.S. \\u00a7 42\\u2014146 (1956) (amended 1967). The court held that where the issue to be tried \\u2014 that is, the taxing authority's asserted discrimination in the assessment of properties \\u2014 was not included within the framework of the statutory appeal procedures, the taxpayer was entitled to seek relief in an original superior court action. The supreme court's holding was based on its earlier decision in McCiuskey v. Sparks, 80 Ariz. 15, 291 P.2d 791 (1955). There the court was also faced with a taxpayer alleging discriminatory taxation practices and a statutory appeal procedure that limited the issues appealable to the full cash value of the property assessed and the tax to be paid. The court held that the statutory appeal remedy, Arizona Code Annot. \\u00a7 73-110, 73-419 (1939) was \\\"no remedy at all\\\" because the issues concerning the alleged discrimination could not be tried and decided under that statute. Id. at 19, 29 P.2d at 793. Based on Southern Pacific and McCluskey, appellant's argum\\u00e9nt is as follows: section 14-29(g) of the Phoenix City Code limits the issues placed before the superior court to those raised in the taxpayer's petition for a hearing; the administrative procedures were neither intended to adjudicate nor is the hearing officer capable of deciding the complex constitutional issues raised in appellant's complaint; therefore, because such issues could not be introduced into the administrative process, they are precluded from being claimed in an appeal, to superior court; this being the case, appellant is left without a forum in which its claims may be heard and, accordingly, appellant should be allowed to maintain an original action in superior court. Although appellant's argument is grounded upon seemingly sound logic, it contains a fatally false assumption \\u2014 that is, that the hearing procedures do not include adjudicating the issues presented by appellant.\\nAppellant's statements that the City's tax hearings are an improper forum for its constitutional claims and that the hearing officer is unqualified to hear these claims is no more than a bald assertion that is wholly unsupported by the record or legal authority. Section 14-29 contains no language limiting the nature of the issues that may be heard by the hearing officer. The basic issue to be tried is whether the taxpayer has been illegally taxed. See Phoenix City Code \\u00a7 14-29(g), (e). The questions included within this issue can be wide-ranging and could very well include constitutional challenges. For this reason, appellant's reliance upon Southern Pacific and McCluskey is misplaced. In these two cases, the issues that could be presented on appeal to the superior court were so limited that the taxpayer was left without a remedy for any other question he might raise. Under section 14-29, however, there is no limitation upon the grounds that the taxpayer may present to reduce or correct his assessment. As long as he asserts these grounds in the petition, they are preserved for an action in superior court. Phoenix City Code \\u00a7 14-29(g>; Univar Corp. v. City of Phoenix, supra.\\nWe acknowledge that, under certain circumstances, the exhaustion of remedies rule is inappropriate. See Univar Corp. v. City of Phoenix, supra. \\\"These are cases in which the remedy is permissive under the authorizing statute; in which jurisdiction of the agency is being contested; in which the agency's expertise is unnecessary; or in which irreparable harm will be caused if the rule is followed.\\\", id. 122 Ariz. at 224, 594 P.2d at 90; see Campbell v. Chatwin, 102 Ariz. 251,428 P.2d 108 (1967), or when there is no clearly ascertainable administrative remedy. Burnkrant v. Saggau, 12 Ariz. App. 310, 470 P.2d 115 (1970). The only exception which seems to support appellant's argument is when the agency's expertise is unnecessary. But, such exception falls short in the present case. Appellant's complaint raises issues going to the manner and amounts in which the City assessed its taxes against appellant and other taxpayers. Analysis and determination of these issues would seem particularly suited to examination by administrative tax specialists. The supreme court's explanation of the reason for requiring a taxpayer to exhaust the remedies of the state's Employment Security Commission in Mountain View Pioneer Hospital v. Employment Security Commission, 107 Ariz. 81, 482 P.2d 448 (1971), aptly describes our reasoning in this case: \\\"The main purpose in requiring an administrative hearing is to remove the onus of a great volume of complicated tax cases from unnecessary judicial review and to initially place them before a specialized tribunal trained to handle such matters.\\\" Id. at 85, 482 P.2d at 452.\\nBecause we decide that the trial court properly declined to exercise its jurisdiction to hear appellant's complaint, we need not pass upon the issues appellant raises regarding whether it could ask the trial court to grant declaratory and injunctive relief. Appellant also asserts that section 14-29 of the Phoenix City Code is unconstitutional. This assertion is unsupported by argument or citation of legal authority. We therefore treat this issue as abandoned. See Modular Systems, Inc. v. Naisbitt, 114 Ariz. 582, 562 P.2d 1080 (App. 1977).\\nThe appellee has made a request for an assessment of attorney's fees for a frivolous appeal pursuant to A.R.S. \\u00a7 12-2106 and rule 25 of the Arizona Rules of Civil Appellate Procedure. We deny this request. In view of the fact that the questions raised by appellant were ones upon which reasonable persons could differ, we cannot say that appellant's appeal was frivolous or taken solely for the purposes of delay. See Barrett v. Melton, 112 Ariz. 605, 545 P.2d 421 (1976).\\nWe conclude that the trial court's dismissal of appellant's complaint was proper and, therefore, affirm the judgment.\\nHAIRE and JACOBSON, JJ., concur.\"}"

arizona/1600718.json

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+"{\"id\": \"1600718\", \"name\": \"D. E. S. YOUTH CONSERVATION CORPS, Petitioner-Employer, State Compensation Fund, Petitioner-Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, David W. Soto, Respondent-Employee\", \"name_abbreviation\": \"D. E. S. Youth Conservation Corps. v. Industrial Commission\", \"decision_date\": \"1981-05-07\", \"docket_number\": \"No. 1 CA-IC 2449\", \"first_page\": \"235\", \"last_page\": \"238\", \"citations\": \"129 Ariz. 235\", \"volume\": \"129\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T01:58:27.693882+00:00\", \"provenance\": \"CAP\", \"judges\": \"WREN and FROEB, JJ., concur.\", \"parties\": \"D. E. S. YOUTH CONSERVATION CORPS, Petitioner-Employer, State Compensation Fund, Petitioner-Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, David W. Soto, Respondent-Employee.\", \"head_matter\": \"630 P.2d 58\\nD. E. S. YOUTH CONSERVATION CORPS, Petitioner-Employer, State Compensation Fund, Petitioner-Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, David W. Soto, Respondent-Employee.\\nNo. 1 CA-IC 2449.\\nCourt of Appeals of Arizona, Division 1.\\nMay 7, 1981.\\nRehearing Denied June 12, 1981.\\nReview Denied June 30, 1981.\\nState Compensation Fund, Robert K. Park, Chief Counsel by John R. Greer, Phoenix, for petitioner-employer and petitioner-carrier.\\nCalvin Harris, Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.\\nChris T. Johnson, P. C. by Dennis R. Kurth, Terrence Kurth, Phoenix, for respondent-employee.\", \"word_count\": \"1420\", \"char_count\": \"8843\", \"text\": \"OPINION\\nO'CONNOR, Presiding Judge.\\nPetitioners, D. E. S. Youth Conservation Corps (YCC) and the State Compensation Fund, have brought this Industrial Commission special action to challenge an award finding compensable an injury sustained by respondent employee while he was using a pocket knife during his leisure time at the Youth Conservation Corps residence facilities. We agree that the injury has not been shown to have a relationship to his employment with YCC and, therefore, set aside the award.\\nThe Youth Conservation Corps program requires its employees to live in residence at the camp facilities while employed in the program. They are on call 24 hours a day. Duties of the employment include clearing and cleaning desert areas, removing or pruning desert growth, and other similar functions. Employees are not expected or permitted to have knives or pocket knives in their possession.\\nThe parties agree that on August 7,1978, the 18-year-old respondent was using some off-duty time to cut a hole in a leather knife case with his own pocket knife, intending to hang the rattles from a rattlesnake on the case. The blade accidentally closed, injuring his right little finger. The tip of the finger eventually required amputation.\\nRespondent filed a workmen's compensation claim for benefits, which was denied by the carrier. After respondent requested a hearing, a formal hearing was conducted before an administrative law judge of the Industrial Commission. In an award entered May 15,1980, the hearing judge found the injury compensable. After the award was affirmed on administrative review, petitioner brought this Industrial Commission special action.\\nThere is no question that respondent was required to live at the YCC camp during his employment, bringing Arizona's \\\"bunkhouse rule\\\" into play. Gaona v. Industrial Commission, 128 Ariz. 445, 626 P.2d 609 (1981). To be compensable under the workmen's compensation statutes, the injury must both arise out of and be in the course of the employment. A.R.S. \\u00a7 23-1021(A). \\\"[T]he words 'in the course of' . refer to the time, place and circumstances under which [the injury] occurred.\\\" Goodyear Aircraft Corp. v. Gilbert, 65 Ariz. 379, 383, 181 P.2d 624, 626 (1947). The \\\"bunkhouse rule\\\" means that an injury suffered while the employee is reasonably using the employer's housing is within the course of the employment, even if the injury occurs during off-duty hours. Gaona v. Industrial Commission, supra. The cases which have developed the \\\"bunkhouse rule\\\" have been predicated upon fact situations involving a reasonable use of the employer's premises, thereby insuring the required relationship between the injury and the employment.\\nIn Johnson v. Arizona Highway Dep't, 78 Ariz. 415, 281 P.2d 123 (1955) the decedent was required to live in a \\\"small, cheaply-constructed\\\" house heated by an oil stove while employed by the highway department in a remote area. When fire broke out while the employee was sleeping, causing his death, the court found an employment relationship between the required housing facilities and the employee's death; therefore, the widow's claim was compensable.\\nIn Hunley v. Industrial Commission, 113 Ariz. 187, 549 P.2d 159 (1976), the employee slipped on the ice on her day off while outside the residence in which it was found she was required by circumstances to live as part of her employment at a retail store at the south rim of the Grand Canyon. Finding the injury compensable, the Hunley court summarized:\\nWe think this case is embraced within the concept of what is commonly known as the \\\"bunkhouse rule.\\\" The bunkhouse rule is an extension of the general rule that where an employee is injured on the employer's premises he is entitled to compensation for the injuries if they were received during a reasonable and anticipative use of the premises. Argonaut Insurance Co. v. Workmen's Compensation Appeals Board, 55 Cal.Rptr. 810, 247 Cal.App.2d 669 (1967). Where an employee is required to live on the employer's premises, injury suffered by the employee while making a reasonable use of the employer's premises is incurred in the course of employment although the injury is received during the employee's leisure time. Johnson v. Arizona Highway Department, 78 Ariz. 415, 281 P.2d 123 (1955). [emphases added]\\nId. at 188, 549 P.2d at 160.\\nWe do not believe that the \\\"bunkhouse rule\\\" was intended to have so broad a scope as to include within the ambit of workmen's compensation all conceivable injuries suffered on the employer's premises, no matter how unrelated to any use of the premises such injuries might be.\\nIn this case, respondent injured himself while engaged in a purely personal activity, namely using his own pocket knife which the employer's policy forbade him to have. The activity of the respondent employee did not benefit the employer beyond the general improvement of the employee's morale. See generally 1A A. Larson, The Law of Workmen's Compensation \\u00a7 20, 22 (1979).\\nIn workmen's compensation cases not involving the \\\"bunkhouse rule,\\\" injuries caused by strictly personal activities unrelated to the employment and of no benefit to the employer beyond improvement of employee health and morale have been held non-compensable. Anderson Clayton & Co. v. Industrial Commission, 125 Ariz. 39, 607 P.2d 22 (App.1979); see also Gonzales v. Industrial Commission, 23 Ariz.App. 179, 531 P.2d 555 (1975). We hold that where there is no causal relationship between a reasonable use of the residential premises and the injury, the \\\"bunkhouse rule\\\" should not operate to make compensable those injuries which occur on the premises but which would otherwise not be compensable because of their strictly personal nature.\\nRespondent has argued that the injury in this case arose out of a \\\"reasonable use of the premises\\\" because the activity was a reasonable use of enforced leisure time. We disagree for two reasons. First, the injury here did not arise out of the use of the premises or out of any condition or element of the premises or the surrounding area, but rather arose out of the purely personal use of respondent's own knife. Second, the use of the knife cannot be said to be reasonable when possession of such an instrument was forbidden by the employer. See Martin v. Bonclarken Assembly, 296 N.C. 540, 251 S.E.2d 403 (1979), in which decedent, a young resort employee, drowned while swimming in a lake during his lunch hour. The claimants argued that it was reasonable and natural that a young boy would swim at lunchtime to cool off after a hot morning mowing lawns. The court disagreed and denied compensation, finding that the risk was foreign to the employment since the employer's rules barred use of the lake during the lunch hour because the lifeguard was absent during that period.\\nIn reaching our conclusion, we are further guided by analogy to cases which have held that injuries that arise from strictly personal activities are not compensable even though the individual was on 24-hour call. Peetz v. Industrial Commission, 124 Ariz. 324, 604 P.2d 255 (1979) (injury incurred by off-duty police officer on 24-hour call while demonstrating to wife the safety mechanism of gun he was required to carry held not compensable); Loveless v. Industrial Commission, 6 Ariz.App. 345, 432 P.2d 600 (1967) (watchman on 24-hour duty did not sustain compensable injury when he was accidentally shot by his son who was returning a borrowed gun which had been supplied to watchman by his employer).\\nFinally, we cannot agree with the hearing judge's finding number 7 in which judicial notice is taken that boys in remote areas are likely to carry knives. In this case, there was uncontroverted evidence that the employer had forbidden the possession of such an instrument. Under these circumstances, it certainly cannot be said that the likelihood that respondent would possess a pocket knife was a proper subject for judicial notice. Vigue v. Noyes, 113 Ariz. 237, 550 P.2d 234 (1976); Arizona Title Ins. & Trust Co. v. Realty Investment Co., 6 Ariz.App. 180, 430 P.2d 934 (1967).\\nFor the reasons given above, the award is set aside.\\nWREN and FROEB, JJ., concur.\"}"

arizona/1600753.json

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+"{\"id\": \"1600753\", \"name\": \"STATE of Arizona, Appellee, v. Rick MILLER, Appellant\", \"name_abbreviation\": \"State v. Miller\", \"decision_date\": \"1981-07-17\", \"docket_number\": \"No. 5000\", \"first_page\": \"465\", \"last_page\": \"470\", \"citations\": \"129 Ariz. 465\", \"volume\": \"129\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T01:58:27.693882+00:00\", \"provenance\": \"CAP\", \"judges\": \"STRUCKMEYER, C.J., HOLOHAN, V. C. J., and HAYS and CAMERON, JJ., concur.\", \"parties\": \"STATE of Arizona, Appellee, v. Rick MILLER, Appellant.\", \"head_matter\": \"632 P.2d 552\\nSTATE of Arizona, Appellee, v. Rick MILLER, Appellant.\\nNo. 5000.\\nSupreme Court of Arizona, In Banc.\\nJuly 17, 1981.\\nRobert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Criminal Division, Diane M. Ramsey, Barbara A. Jarrett, Asst. Atty. Gen., Phoenix, for appellee.\\nRichard S. Oseran, Pima County Public Defender, Allen G. Minker, Asst. Public Defender, Tucson, for appellant.\", \"word_count\": \"2744\", \"char_count\": \"15831\", \"text\": \"GORDON, Justice:\\nAppellant Miller was indicted on September 10,1975, on six counts of burglary, child molestation, and obstructing justice. He was tried and convicted on Counts I and II, after those charges were severed from the remaining counts, and sentenced to the Arizona State Prison for not less than four nor more than five years on Count I and for not less than twenty years nor more than life on Count II. He filed a timely notice of appeal to the Court of Appeals, which affirmed the trial court. State v. Miller, 115 Ariz. 279, 564 P.2d 1246 (App. 1977). Petition for review by the Arizona Supreme Court was denied May 10, 1977.\\nOn March 26, 1980, appellant filed a petition for postconviction relief relying on State v. Canedo, 125 Ariz. 197, 608 P.2d 774 (1980), requesting the right to file a delayed appeal on the ground that the Court of Appeals' decision affirming the trial court conviction was void due to lack of jurisdiction. The Pima County Superior Court treated the petition as a motion to permit delayed appeal and granted the motion on May 8, 1980, allowing appellant to file a notice of appeal to the Arizona Supreme Court.\\nInitially, we hold that the Pima County Superior Court correctly granted appellant's motion for delayed appeal pursuant to Ca\\u00f1edo, supra. Accordingly, the opinion of the Court of Appeals, 115 Ariz. 279, 564 P.2d 1246 (App. 1977), is vacated as void for lack of jurisdiction. Taking jurisdiction of Miller's appeal pursuant to A.R.S. Const. Art. 6, \\u00a7 5(3), and A.R.S. \\u00a7 13-4031, we affirm the judgment of guilt and sentence of the trial court.\\nAppellant raises two issues for our consideration. The first is whether the trial court erred in admitting evidence of a prior similar incident or, in the alternative, whether the trial court erred in denying appellant's motion for a new trial after he was subsequently acquitted following a tri-. al for that prior incident.\\nCounts I and II of appellant's six count indictment charged him with the commission of burglary and child molestation on August 31, 1975. Counts III and IV charged him with the commission of a separate but similar incident of burglary and child molestation on August 17, 1975. Appellant filed a pre-trial motion to exclude evidence of the.prior incident of August 17, 1975, at his trial for the incident of August 31, 1975. This motion was denied and evidence of the prior incident\\u00bb was admitted.\\nEvidence of prior bad acts is usually inadmissible, State v. Rose, 121 Ariz. 131, 589 P.2d 5 (1978). It may, however, be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, Rule 404(b), 17A A.R.S. Rules of Evidence, if the prior bad acts are not too misleading or prejudicial, Rose, supra.\\nWe held in Rose that \\\"the trial judge has wide discretion as to the admissibility of prior acts.\\\" 121 Ariz. at 136, 589 P.2d at 10. The trial judge in the case at bar ruled that evidence of the events of August 17, 1975, were admissible \\\"either or both on the issues of identity, and of propensity.\\\" We need not reach the question whether the disputed evidence was admissible to prove \\\"emotional propensity for sexual aberration,\\\" see State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973), because we find it was properly admitted to prove identity. See Rule 404(b), supra.\\nThe victim of the child molestation for which appellant was on trial was unable to positively identify the man who had molested her, either from photographs shown her by the police or in person at trial. Substantial fingerprint evidence was introduced at trial to establish appellant's presence in and around the victim's home, including evidence of appellant's fingerprints on the open window through which the intruder had entered. The state, however, might have felt the need to introduce stronger proof of appellant's identity as the perpetrator of the crime.\\nThe victim of the earlier incident had been able to pick out appellant's photograph from a group shown her by police and identified appellant at trial as \\\"resembling\\\" the man who had leaned through her window and molested her. The state may have believed that her testimony would tend to compensate for the later victim's inability to identify appellant as her offender and thus would be relevant to show appellant's identity as the perpetrator of the crime for which he was being tried.\\nState v. Jackson, 124 Ariz. 202, 603 P.2d 94 (1979), set out the test for admitting evidence of prior bad acts to prove identity: there must be similarities between the offenses in those important aspects where normally differences would be expected to be found. Both the similarities and the differences between the acts should be considered in determining admissibility. Jackson, supra.\\nThe two incidents under consideration here are similar in that they occurred at about the same time of day, between 2:00 a.m. and 4:00 a.m., to children of the same sex, female, who were about the same age. At the time of trial, one girl was nine and the other was eleven. In both occurrences, a man described by each girl as being around 50 years old and slightly overweight, having short hair and wearing gray clothes, broke into a residence through a window through which he would have been able to see the victim sleeping near the window with another female child of about the same age. In each case there was some illumination in the room in which the children were sleeping from a light in an adjacent room. In each case the child victim was awakened by the male intruder and told to be quiet. The man then put his hand on the lower part of the child's body and fondled her. Both incidents occurred within the same neighborhood in Tucson and close in time, one happening on August 17, 1975, and the other on August 31, 1975.\\nIn comparison to the similarities, the differences seem relatively insignificant. In the August 31st incident for which appellant was being tried, the intruder was lying next to the victim when she woke up. The child described the event at trial in the following words:\\n\\\"Well, I tried to get up to go get my mom. And he showed me a fist and told me just to be quiet and lie down again. And then he pulled down the bottoms of my underwear and he rubbed his tongue about my uretha. So I hit Sara [the child sleeping next to her] real hard in the stomach and then he got up and left.\\\"\\nIn the August 17th incident, the intruder leaned through a window which he had opened and awakened the victim by poking her in the back. The child described the event at trial in these words:\\n\\\"Q. Now, when the man leaned in and poked you, you woke up at that time?\\n\\\"A. Yes.\\n\\\"Q. Did the man say anything to you at the time?\\n\\\"A. Yes, he said, shush, don't make a move, don't say anything.\\n\\\"Q. And then what happened?\\n\\\"A. Well, then he reached up my nightie and he started feeling around my bottom.\\n\\\"Q. All right. Did he touch you around the bottom?\\n\\\"A. Yes.\\n\\\"Q. Tell us what he did, okay?\\n\\\"A.- Well, he touched around it, and I sat up and I said, 'Please, mister, don't.' And he said, shush, don't make a move, don't say anything. Then \\u2014 then he licked his fingers.\\n\\\"Q. After he touched your bottom?\\n\\\"A. Yes.\\n\\\"Q. And then what happened ?\\n\\\"A Then he \\u2014 then he leaned up against our bushes and then he said, 'Do you see this?' and his fly was open.\\n\\\"Q. Did you say anything at that time?\\n\\\"A. Yes, I said no, I don't want to, and I ran for mom and dad.\\\"\\nWe feel that the similarities between the important aspects of these two offenses outweigh the differences.\\nAnother requirement for the admissibility of evidence of a prior bad act is that the evidence as to its commission and as to its commission by the defendant must be sufficient to take the prior act to the jury. State v. Jerousek, 121 Ariz. 420, 590 P.2d 1366 (1979). A review of the record persuades us that that requirement was met in this case. We hold, therefore, that the trial judge did not abuse his discretion by admitting evidence of the prior similar bad act on August 17, 1975, at appellant's trial for the incident on August 31, 1975.\\nFollowing appellant's conviction on Counts I and II, he was acquitted in a separate trial on Counts III and IV. In a motion for new trial on Counts I and II, he argued that his subsequent acquittal on Counts III and IV should make the evidence regarding the latter counts retroactively inadmissible at his earlier trial. Appellant based his argument on State v. Little, 87 Ariz. 295, 350 P.2d 756 (1960), which held that evidence of prior offenses of which defendant had been acquitted was inadmissible.\\nThe Little Court concluded that the fact of an acquittal, \\\"when added to the tendency of such evidence to prove defendant's bad character and criminal propensities, lower[ed] the scale to the side of inadmissibility of such evidence.\\\" Id. at 307, 350 P.2d at 763. Although the Court found the factors leading to its conclusion not subject to precise articulation, it noted two points. First, the evidence of the former offense would tend to become remote, speculative and confusing because it would have to be interpreted in the context of the record and verdict of the former trial, due to the doctrines of res judicata or collateral estoppel. Second, allowing evidence of the prior offense to prove the defendant's guilt would require a defendant to refute his commission of that prior offense for a second time, a requirement which should be prevented by a verdict of acquittal.\\nIn Little, the acquittal on charges of the prior bad act came before the trial at which evidence of that act was used. The above factors are not present in the case before us, where the acquittal occurred after the trial at which evidence of the prior acts was introduced. The evidence did not have to be interpreted in light of a prior determination, nor was the defendant required to answer a second time for charges on which he had been acquitted.\\nAs a general rule, in furtherance of final judgments, the admissibility of evidence must be determined at the time of trial, not at some indefinite time after-wards. Appellant relies on State v. Kiser, 111 Ariz. 316, 529 P.2d 215 (1974), to argue that because the state introduced evidence of another offense at his trial, later vindication of defendant on that charge renders his conviction void. Kiser addressed the narrow issue of the effect of using a prior felony conviction, on appeal at the time of trial, to impeach a defendant who had taken the stand to testify. This Supreme Court held that a prosecutor who uses such a prior felony conviction does so at his own risk, because if the conviction is later reversed by an appellate court and no new trial is held, the trial court would be required to grant a new trial. The Court based its holding on its view that \\\"[i]t is as if the prior felony conviction had never occurred\\\" once it is reversed, 111 Ariz. at 317, 529 P.2d at 216.\\nKiser's holding regarding use of a prior felony conviction to impeach is inapposite to use of prior bad acts to show identity. Admissibility of a prior bad act does not depend on a defendant's conviction for that act. There simply must be sufficient evidence of the commission of the act by the defendant to go to the jury. An acquittal on charges of prior bad acts does not necessarily mean there was insufficient evidence of those acts to go to the jury. We have stated above that the sufficiency of evidence standard was satisfied at defendant's trial. Appellant's subsequent acquittal on Counts III and IV did not, therefore, require a new trial to be granted him on Counts I and II.\\nThe second issue which appellant raises is that the trial court erred in denying his motion to suppress photograph and fingerprint evidence resulting from his arrest under the following city ordinance:\\n\\\"A person is guilty of loitering when he:\\n\\n\\\"(4) Loiters or remains in or about a school, not having any reason or relationship involving custody of or responsibility for a pupil or student, or any other specific, legitimate reason for being there, and not having written permission from anyone authorized to grant the same.\\\"\\nTuscon, Ariz., Code \\u00a7 11-33 (1953).\\nAppellant first argues he should have been \\\"field released\\\" under A.R.S. \\u00a7 13 \\u2014 1422 because the authorization for his arrest came from A.R.S. \\u00a7 13-1403(4), which he claims requires such a release. A.R.S. \\u00a7 13-1403 provides: \\\"A peace officer may, without a warrant, arrest a person: (4) [w]hen he has probable cause to believe a misdemeanor has been committed and probable cause to believe the person to be arrested has committed the offense. The person so arrested shall be released in conformity with the provisions of \\u00a7 13\\u2014 1422.\\\" A.R.S. \\u00a7 13-1422 allows a person arrested for a misdemeanor to be released from custody without being taken to the police station.\\nWe believe that appellant's arrest was also authorized under A.R.S. \\u00a7 13-1403(2) which contains no reference to the \\\"field release\\\" provisions of A.R.S. \\u00a7 13-1422. A.R.S. \\u00a7 13-1403(2) empowers a peace officer to arrest a person without a warrant \\\"[wjhen he has probable cause to believe a misdemeanor has been committed in his presence and probable cause to believe the person to be arrested has committed the offense.\\\" As shown below, the record contains sufficient evidence to support a finding that the arresting officer had probable cause to believe appellant had committed, in the officer's presence, the misdemeanor of \\\"loiterpng] or remainpng] in or about a school.\\\" Accordingly, we find that the photograph and fingerprint evidence was not obtained in violation of a right on defendant's part to \\\"field release.\\\"\\nAppellant's second argument, that there was no probable cause to support his arrest for \\\"loiterpng] in or about a school,\\\" is based on the trial judge's finding that \\\"there is no evidence to indicate that the Defendant was anywhere other than on a city street prior to and at the time of his arrest.\\\" Because loitering either in or about a school is prohibited by Tucson, Ariz., Code \\u00a7 11-33(4), we feel the ordinance is broad enough to proscribe loitering on a city street adjacent to the school.\\nThe officer who arrested appellant had received information that a yellow vehicle with a certain license plate was following children to school. Upon arriving at a street adjacent to the school, the officer observed a yellow car with appellant sitting behind the wheel leaning out toward two females around ten to twelve years of age standing next to the car. As the officer approached the car, it \\\"took off.\\\" The officer turned on his lights and siren and pursued the car. After some distance, appellant pulled over. He first denied being in the area and talking to the young females. He later, changed his story but \\\"couldn't give [the officer] any explanation at all why he was even around the school or talking with the females.\\\" Under these circumstances, we feel the officer had probable cause to arrest appellant for violating Tucson, Ariz., Code \\u00a7 11-33(4).\\nThe opinion of the Court of Appeals, 115 Ariz. 279, 564 P.2d 1246 (App. 1977) is vacated. The judgment and sentence of the trial court are affirmed.\\nSTRUCKMEYER, C.J., HOLOHAN, V. C. J., and HAYS and CAMERON, JJ., concur.\\n. The criminal code sections referred to in this paragraph and the following one are from former Title 13, repealed effective October 1, 1978.\"}"

arizona/1604539.json

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+"{\"id\": \"1604539\", \"name\": \"STATE of Arizona, Appellee, v. Michael Ray DeCOE, Appellant\", \"name_abbreviation\": \"State v. DeCoe\", \"decision_date\": \"1978-04-24\", \"docket_number\": \"No. 4160\", \"first_page\": \"502\", \"last_page\": \"504\", \"citations\": \"118 Ariz. 502\", \"volume\": \"118\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:00:31.790657+00:00\", \"provenance\": \"CAP\", \"judges\": \"CAMERON, C. J., STRUCKMEYER, V. C. J., and HAYS, and HOLOHAN, JJ., concurring.\", \"parties\": \"STATE of Arizona, Appellee, v. Michael Ray DeCOE, Appellant.\", \"head_matter\": \"578 P.2d 181\\nSTATE of Arizona, Appellee, v. Michael Ray DeCOE, Appellant.\\nNo. 4160.\\nSupreme Court of Arizona, In Banc.\\nApril 24, 1978.\\nJohn A. LaSota, Jr., Atty. Gen., Bruce E. Babbitt, Former Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Crane McClennen, Asst. Attys. Gen., Phoenix, for appellee.\\nRoss P. Lee, Maricopa County Public Defender, Terry J. Adams, Deputy Public Defender, Phoenix, for appellant.\", \"word_count\": \"659\", \"char_count\": \"3870\", \"text\": \"GORDON, Justice:\\nMichael Ray DeCoe pled guilty to second degree murder, and received a sentence of 15 to 35 years in the Arizona State Penitentiary. Subsequently he filed this appeal, and we have taken jurisdiction pursuant to 17A A.R.S. Rules of the Supreme Court, Rule 47(e).\\nTwo issues have been raised:\\n(1) Whether appellant was properly informed of the nature of the charge?\\n(2) Whether an adequate factual basis existed for the guilty plea.\\nRelying on Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), appellant asserts he was not adequately informed of intent being a necessary element for second degree murder. During the plea hearing, the court addressed appellant:\\n\\\"Mr. DeCoe, if this were to go to trial, you would have the right to defend the case by saying you were insane at the time of the act, and also you have the right of self defense, if you're not pleading guilty to the fact that you murdered this man with malice. In other words, this was conceived in your mind that you decided to kill him, and you did kill him, and there was no provocation that led to the killing. Otherwise, I can't accept your plea\\\".\\nWe believe this explanation adequately satisfies the requirements of Henderson v. Morgan, supra.\\nNext, appellant contends the record contains an insufficient fact basis to support his guilty plea. Prior to accepting a plea of guilty, the court need only ascertain the existence of \\\"strong evidence\\\" of guilt. It is not necessary to find a defendant guilty beyond a reasonable doubt. State v. Norris, 113 Ariz. 558, 558 P.2d 903 (1976); North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).\\nAlthough appellant claimed he shot the victim in self-defense, the record indicates the following events occurred on the day of the crime. Appellant and the victim had been living together in the victim's apartment. The two argued on the day of the shooting, and the victim left the apartment. Before the victim returned, appellant went into the bedroom, picked up a handgun and loaded it. When the victim returned, the argument continued and appellant fired a shot at the victim, but missed. According to appellant, the victim then walked into the bedroom and brought out a rifle. He sat down, laying the rifle on the floor nearby. Appellant claims the victim started to bend over, as if to reach for the rifle, so appellant shot him.\\nAccording to the state, the physical evidence contradicts appellant's version of the shooting. The rifle was found in its sheath in the bedroom where the victim's son had placed it on the prior evening. The fatal shot entered the victim's right chest and exited behind his left armpit. This fact, and the photographs of the victim taken at the scene of the crime demonstrate that the victim was sitting back on the couch, rather than leaning forward. His left leg was crossed over the right; he had one arm up on the couch and was holding a cigarette in the other hand. Together with appellant's admission that he fired the shot, this evidence formed an adequate basis for the acceptance of appellant's guilty plea to the charge of second degree murder, which has been defined as an unlawful killing with no considerable provocation. State v. Sehantz, 98 Ariz. 200, 403 P.2d 521 (1965); See North Carolina v. Alford, supra.\\nJudgment of the superior court affirmed.\\nCAMERON, C. J., STRUCKMEYER, V. C. J., and HAYS, and HOLOHAN, JJ., concurring.\"}"

arizona/1604572.json

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+"{\"id\": \"1604572\", \"name\": \"Vernard HODGES, Appellant, v. Mary E. HODGES, Appellee\", \"name_abbreviation\": \"Hodges v. Hodges\", \"decision_date\": \"1978-02-15\", \"docket_number\": \"No. 2 CA-CIV 2608\", \"first_page\": \"572\", \"last_page\": \"577\", \"citations\": \"118 Ariz. 572\", \"volume\": \"118\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:00:31.790657+00:00\", \"provenance\": \"CAP\", \"judges\": \"RICHMOND, C. J., and HOWARD, J., concur.\", \"parties\": \"Vernard HODGES, Appellant, v. Mary E. HODGES, Appellee.\", \"head_matter\": \"578 P.2d 1001\\nVernard HODGES, Appellant, v. Mary E. HODGES, Appellee.\\nNo. 2 CA-CIV 2608.\\nCourt of Appeals of Arizona, Division 2.\\nFeb. 15, 1978.\\nRehearing Denied March 21, 1978.\\nReview Denied April 18, 1978.\\nMetcalf & Halladay, P.C. by Michael B. Halladay, Tucson, for appellant.\\nMichael J. Vingelli, Tucson, Michael F. Rollins, Certified Law Student under Rule 28(e), for appellee.\", \"word_count\": \"2670\", \"char_count\": \"16424\", \"text\": \"OPINION\\nHATHAWAY, Judge.\\nThe question presented by this appeal is whether the annulment of a later marriage results in the revival of the prior husband's obligation to provide spousal maintenance under a decree of dissolution. Appellee Mary Hodges and appellant Vernard Hodges were married on May 4,1960, and sixteen years later on April 29,1976, their marriage was dissolved in Pima County Superior Court. Appellee was awarded custody of their only child, a fourteen year old daughter, and appellant was ordered to pay child support. The decree of dissolution also provided that \\\"Vernard Hodges is ordered to pay as and for spousal maintenance the sum of Two Hundred Twenty Dollars and no/100 ($220.00) per month . and continuing until further Order of this Court\\nOn August 9,1976, appellee married John Pfrimmer. Upon her subsequent complaint against Pfrimmer in superior court, however, this marriage was annulled on October 18,1976. Appellant had made no spousal maintenance payments since July 1976. Following the annulment, appellee requested that he again begin to make payments, but he refused. On January 19, 1977, she filed a petition for an order to show cause re: arrearages, requesting judgment for delinquent spousal maintenance payments and attorney's fees. A hearing was held on the petition and on the cross motions for summary judgment. This appeal challenges the denial of appellant's and the granting of appellee's motion for summary judgment.\\nThe court awarded judgment against appellant in the sum of $1,540.00 for spousal maintenance due from August 1976 through February 1977, and in the sum of $250.00 for attorney's fees. The court found:\\n\\\". . no Arizona law which is controlling in this fact situation . This court believes that since this is an action in equity, and since there has been no showing made as to why the spousal maintenance payments should be terminated or reduced other than the marriage and subsequent annulment, that the equities are with the petitioner and against the respondent. This holding does not preclude the respondent from moving this court to modify the spousal maintenance provisions in the decree at some subsequent date should there be sufficient change in circumstances as to either party.\\\"\\nA.R.S. \\u00a7 25-327(B) provides:\\n\\\"Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.\\\"\\nThe word \\\"remarriage\\\" is not defined in the statute. We must, therefore, determine whether appellee's marriage to Pfrimmer, later annulled, comes within the meaning of \\\"remarriage\\\" in A.R.S. \\u00a7 25- 327(B) terminating appellant's obligation to pay spousal maintenance. Appellee contends that \\\"remarriage\\\" is not, as here, a void marriage which may be annulled, but is a valid marriage which gives rise to a status. Appellant's position is that appellee's marriage to Pfrimmer was merely voidable and \\\"remarriage\\\" includes this kind of ceremonial marriage.\\nA.R.S. \\u00a7 25-301 sets out the grounds for annulment:\\n\\\"Superior courts may dissolve a marriage, and may adjudge a marriage to be null and void when the cause alleged constitutes an impediment rendering the marriage void.\\\"\\nThe word \\\"void\\\" as used in our annulment statute refers to \\\"voidable\\\" marriages, which are subject to ratification or disaffirmance by the injured party, as well as \\\"void\\\" marriages, which are incapable of ratification. Southern Pacific Company v. Industrial Commission, 54 Ariz. 1, 91 P.2d 700 (1939), overruled on other grounds, Means v. Industrial Commission, 110 Ariz. 72, 515 P.2d 29 (1973). Any grounds rendering the marriage void or voidable should be available to grant an annulment of marriage under A.R.S. \\u00a7 25-301. Means v. Industrial Commission, supra.\\nIn its decree the court declared appellee's marriage to Pfrimmer \\\". . . void, and of no force, form or effect whatsoever.\\\" Since appellee's complaint for annulment is not included in the record, we do not know what grounds the court had for granting her relief. On this record, we do not conclude, because the court declared the marriage \\\"void\\\" under the annulment statute, that it may not have been referring to a voidable marriage.\\nIt has been stated generally that an annulment decree \\\"relates back\\\" to destroy a marriage from the beginning. This doctrine is a legal fiction fashioned by the courts to promote justice. Gaines v. Jacob-sen, 308 N.Y. 218, 124 N.E.2d 290 (1954). If the \\\"relation back\\\" theory is given strict application, as appellee contends it should be, then her marriage to Pfrimmer never existed, she has not remarried as A.R.S. \\u00a7 25-327(B) contemplates, and she would remain entitled to the maintenance payments provided in the decree of dissolution. However, this theory has not been applied by the courts remorselessly. Robbins v. Robbins, 343 Mass. 247, 178 N.E.2d 281 (1961). It is sometimes given effect and sometimes ignored, as the purposes of justice are deemed to require. Sefton v. Sefton, 45 Cal.2d 872, 291 P.2d 439 (1955); Gaines v. Jacobsen, supra. Courts have been particularly wary of applying the \\\"relation back\\\" fiction where it might adversely affect the rights of innocent third parties. Berkely v. Berkely, 269 Cal.App.2d 872, 75 Cal.Rptr. 294 (1969); Sefton v. Sefton, supra.\\nAppellee urges that reference to Arizona law in the area of workmen's compensation supports her position. It has been held that the annulment of a second marriage reinstates a widow's right to death benefits under A.R.S. \\u00a7 23-1046(A)(2), upon tendering back the amounts she has received as lump settlement. United States Fidelity and Guaranty Company v. Industrial Commission, 25 Ariz.App. 244, 542 P.2d 825 (1975); Means v. Industrial Commission, supra; Southern Pacific Company v. Industrial Commission, supra. Appellee relies on the following interpretation of \\\"marriage\\\" in an Indiana workmen's compensation statute: \\\"Giving the provision referred to a broad and liberal construction, as we must, a marriage, within the meaning of the statute, is not a void or voidable marriage which may at once be annulled, but a valid and subsisting marriage.\\\" (Emphasis ours) Eureka Block Coal Co. v. Wells, 83 Ind.App. 181, 147 N.E. 811 at 812 (1925), quoted in Southern Pacific Company v. Industrial Commission, supra.\\nIt is axiomatic workmen's compensation law that the statutes are to be liberally construed to effect their purpose of placing the burden of death and injury upon industry. Coca-Cola Bottling Company of Tucson v. Industrial Commission, 23 Ariz.App. 496, 534 P.2d 304 (1975); Pottinger v. Industrial Commission, 22 Ariz.App. 389, 527 P.2d 1232 (1975). A.R.S. \\u00a7 23-1046(A)(2) says nothing about any number of economic factors which might be considered, if ability to provide and support were the criteria, but they are not. United States Fidelity and Guaranty Company v. Industrial Commission, supra. By contrast, an award of maintenance under A.R.S. \\u00a7 25-319 may be made only upon a finding that the spouse seeking maintenance lacks sufficient property to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment or is the custodian of a child who requires his or her presence at home. Fye v. Zigoures, 114 Ariz. 579, 562 P.2d 1077 (App.1977).\\nThere is a manifest difference between a spousal maintenance paying former husband and the Industrial Commission administering workmen's compensation law. See Folsom v. Pearsall, 245 F.2d 562 (9th Cir. 1957); Flaxman v. Flaxman, 57 N.J. 458, 273 A.2d 567 (1971). It is clear that the factors which may lead to a holding that an annulment decree \\\"relates back\\\" to revive a right to death benefits may not be relevant where the issue is whether an annulment decree \\\"relates back\\\" to revive a right to spousal maintenance. See Nott v. Flemming, 272 F.2d 380 (2nd Cir. 1959).\\nThe revival of alimony following annulment of a remarriage has been considered in a number of jurisdictions with various results predicated upon differing rationales. Annot., 45 A.L.R.3d 1033 (1972). Some courts have rested their decisions on whether the marriage was void or voidable. Where void remarriages are involved the majority rule is the alimony requirement is not cut off. De Wall v. Rhoderick, 258 Iowa 433, 138 N.W.2d 124 (1965); Johnson County National Bank and Trust Company v. Bach, 189 Kan. 291, 369 P.2d 231 (1962); Cecil v. Cecil, 11 Utah 2d 155, 356 P.2d 279 (1960); Boiteau v. Boiteau, 227 Minn. 26, 33 N.W.2d 703 (1948). Many courts have rejected the \\\"relation back\\\" doctrine and deny recovery to the wife when her second marriage is merely voidable. Flaxman v. Flaxman, supra; Chavez v. Chavez, 82 N.M. 624, 485 P.2d 735 (1971); Bridges v. Bridges, 217 So.2d 281 (Miss.1968). Most states do not have a statute, similar to A.R.S. \\u00a7 25-327(B), providing for termination of maintenance as a matter of law. As a result, decisions from other states are concerned with the effect of the annulled remarriage as a \\\"changed circumstance\\\" between the divorced parties or with the interpretation of an agreement, incorporated in a divorce decree, according to the parties' intentions. These decisions, therefore, are of illustrative value only. See Berkely v. Berkely, supra.\\nA significant minority of courts have abandoned the void-voidable distinction altogether, and refuse the wife recovery, even where her second marriage is void rather than merely voidable, and even in the absence of legislation authorizing an alimony award after a judgment of annulment. Holding that a ceremonial marriage should be deemed sufficient as a matter of law to cut off alimony, these decisions are based both on statutory interpretation, in those jurisdictions where by statute the alimony obligation terminates upon remarriage, Fry v. Fry, 5 Cal.App.3d 169, 85 Cal.Rptr. 126 (1970); Berkely v. Berkely, supra; Torgan v. Torgan, 159 Colo. 93, 410 P.2d 167 (1966); Keeney v. Keeney, 211 La. 585, 30 So.2d 549 (1947); and on policy grounds, Denberg v. Frischman, 24 A.D.2d 100, 264 N.Y.S.2d 114 (1965), cert. den. 385 U.S. 884,87 S.Ct. 176, 17 L.Ed.2d 111 (1966).\\nThe following reasons have been advanced for refusing to revive the husband's obligations. The grounds for annulment will likely be known by and be of concern to only the individual parties involved. The wife would thus have the option to annul or ratify a voidable marriage. The marriage might continue indefinitely. \\\"The former husband's affairs should not be left in limbo subject to the conduct of parties to a relationship of which he has no part.\\\" Flaxman v. Flaxman, supra, 273 A.2d 567 at 570. Moreover, he would not be a party to any annulment proceedings which did occur. His obligations should not be determined by circumstances over which he has little or no knowledge or control. He is entitled to rely upon his wife's apparent marital status after a new marriage ceremony and thereafter to reorder his personal and financial affairs. Berkely v. Berkely, supra; Keeney v. Keeney, supra. The freedom from the obligation to pay alimony may lead him to change his mode of living or even to remarry and establish a new family. Denberg v. Frischman, supra. If \\\"remarriage\\\" referred only to a valid second marriage, the husband would be placed in the untenable position of never being certain that the financial responsibility for his former wife would not shift back to him. Flaxman v. Flaxman, supra; Keeney v. Keeney, supra.\\nThe wife also has the option, in many cases, of obtaining an annulment or a divorce from the second husband. In Arizona, the fact that a dissolution of marriage could be granted under A.R.S. \\u00a7 25-312 should not preclude the granting of a valid decree of annulment. Means v. Industrial Commission, supra. If alimony could be revived by annulling the second marriage, the wife could choose between two sources of support. A divorce could lead to alimony from the second husband while an annulment could reinstate alimony from the first. Although the former husband is innocent of any wrongdoing, and the wife may be so, \\\". . .it accords with the policy of the law to look less favorably upon the more active of two innocent parties when by reason of such activity a loss is sustained as the result of the misconduct of a stranger.\\\" Sefton v. Sefton, supra, 291 P.2d 439 at 442.\\nFinally, if the argument that a former husband is liable for his wife's support because no duty to support flows from the annulled marriage is carried to its logical conclusion, she would be entitled to alimony for the period during which she had lived with her second husband. \\\"Such a conclusion in our opinion would be repugnant to public policy and good morals.\\\" Keeney v. Keeney, supra, 30 So.2d 549 at 551; Sleicher v. Sleicher, 251 N.Y. 366, 167 N.E. 501 (1929). Such a result was reached by the court in the instant case. Appellant's obligation to pay maintenance was reinstated for a period including the two months appellee was \\\"married\\\" to Pfrimmer. In Arizona, there is no statutory basis for an award of maintenance in an annulment proceeding.\\nWhile recognizing that there is a strong policy of insuring to a wife a legal right to support, these courts treat a divorcee \\\". . . as a responsible person who must be held to her decision, presumably relied upon by others, to terminate her right to support from a former husband.\\\" Berkely v. Berkely, supra, 75 Cal.Rptr. 294 at 296; Herscher v. Herscher, 51 Misc.2d 921, 274 N.Y.S.2d 295 (1966). A.R.S. \\u00a7 25-327(B) expresses the clear intent that when support needs cease by virtue of death or remarriage, the obligation to support should also cease. Upon remarriage, the wife obtains a new source of support. However, termination of this marriage, on divorce or death of her husband, does not reinstate support from the first husband merely because support is unavailable from the second husband. There is \\\". . no sound reason for treating an annulment any differently from a divorce or death in this regard.\\\" Flaxman v. Flaxman, supra, 273 A.2d 567 at 570; Gaines v. Jacobsen, supra.\\nUpon review of the decisions in this area, we find ourselves in agreement with the foregoing policy considerations against reviving a maintenance obligation. Even though equitable in nature, divorce actions in Arizona are statutory, the courts having only those powers specifically conferred by statute. Saxon v. Riddel, 16 Ariz. App. 325, 493 P.2d 127 (1972); Rodieck v. Rodieck, 9 Ariz.App. 213, 450 P.2d 725 (1969). We hold that appellant's obligation to pay spousal maintenance was terminated under A.R.S. \\u00a7 25-327(B) and therefore the court was without jurisdiction to order the obligation reinstated. Appellant's motion for summary judgment should have been granted.\\nAppellant also questions the trial court's order that he pay appellee's attorney's fees. A.R.S. \\u00a7 25-324 authorizes a court \\\". . . from time to time, after considering the financial resources of both parties,\\\" to award costs, including attorney's fees. This decision lies within the sound discretion of the court. Rowe v. Rowe, 117 Ariz. 474, 573 P.2d 874 (filed January 5, 1978); Burkhardt v. Burkhardt, 109 Ariz. 419, 510 P.2d 735 (1973). Even though he prevails on appeal, appellant has failed to demonstrate an abuse of discretion. We affirm the award of attorney's fees.\\nWe affirm the part of the judgment awarding attorney's fees to appellee and reverse as to the award of $1,540.00 for maintenance and arrearages.\\nRICHMOND, C. J., and HOWARD, J., concur.\\n. \\u04a4 23-1046. Death benefits\\nA. In case of an injury causing death, the compensation therefor shall be known as a death benefit, and shall be payable in the amount, for the period, and to and for the benefit of the persons following:\\n2. To the surviving spouse, if there is no child, thirty-five per cent of the average wage of the deceased, to be paid until such spouse's death or remarriage, with two years' compensation in one sum upon remarriage.\\\"\"}"

arizona/1606447.json

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+"{\"id\": \"1606447\", \"name\": \"The STATE of Arizona, Appellee, v. Robert Allen GORDON, Appellant\", \"name_abbreviation\": \"State v. Gordon\", \"decision_date\": \"1978-03-30\", \"docket_number\": \"No. 2 CA-CR 1222\", \"first_page\": \"182\", \"last_page\": \"184\", \"citations\": \"120 Ariz. 182\", \"volume\": \"120\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:45:47.667580+00:00\", \"provenance\": \"CAP\", \"judges\": \"HOWARD and HATHAWAY, JJ., concur.\", \"parties\": \"The STATE of Arizona, Appellee, v. Robert Allen GORDON, Appellant.\", \"head_matter\": \"584 P.2d 1173\\nThe STATE of Arizona, Appellee, v. Robert Allen GORDON, Appellant.\\nNo. 2 CA-CR 1222.\\nCourt of Appeals of Arizona, Division Two.\\nMarch 30, 1978.\\nRehearing Denied May 17, 1978.\\nReview Granted June 13, 1978.\\nStephen D. Neely, Pima County Atty. by D. Jesse Smith, Deputy County Atty., Tucson, for appellee.\\nJohn M. Neis, Pima County Public Defender by Michael P. Roca, Asst. Public Defender, Tucson, for appellant.\", \"word_count\": \"766\", \"char_count\": \"4441\", \"text\": \"OPINION\\nRICHMOND, Chief Judge.\\nThis is an appeal from a judgment of guilty of assault with a deadly weapon and a sentence thereon of not less than five nor more than 15 years in the Arizona State Prison. Appellant raises only one issue: should the court have granted his motion for a judgment of acquittal for lack of substantial evidence of an attempt to commit a physical injury on the victim?\\nAssault is an offer to use force to injure another. State v. Parker, 116 Ariz. 3, 567 P.2d 319 (1977). The victim testified that appellant came up to the driver's door of her car, held a knife to the back of her neck and told her to move over. Appellant's conduct constituted an assault. Use of the knife made it an assault with a deadly weapon. State v. Garcia, 114 Ariz. 317, 560 P.2d 1224 (1977). The crime does not demand a stringent concept of intent to do harm when obviously deadly weapons are involved. See State v. Seebold, 111 Ariz. 423, 531 P.2d 1130 (1975).\\nAlthough we affirm the conviction, the sentence is vacated. A.R.S. \\u00a7 13-249 provides:\\n\\\"A. A person who commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury, shall be punished by imprisonment in the state prison for not less than one nor more than ten years, by a fine not exceeding five thousand dollars, or both. \\\"B. A crime as prescribed by the terms of subsection A, committed by a person armed with a gun or other deadly weapon, is punishable by imprisonment in the state prison, for the first offense, for not less than five years, for a second offense, not less than ten years, for a third or subsequent offense, not less than twenty years nor more than life imprisonment, and in no case, except for first offense committed by a person armed with a deadly weapon other than a gun, shall the person convicted be eligible for suspension or commutation of sentence, probation, pardon or parole until such person has served the minimum sentence imposed.\\\"\\nThe indictment adequately informed appellant that he was to be prosecuted under both subsections, including the enhanced punishment provisions of subsection B. Cf., State v. Garcia, supra. The verdict rendered by the jury, however, reads as follows:\\n\\\"We, the Jury, duly empaneled and sworn in the above entitled action, upon our oaths, do find the defendant Robert Allen Gordon guilty of the crime of Assault With a Deadly Weapon, to wit: A knife.\\\"\\nThe jury was not asked to determine whether the crime was committed by a person armed with a deadly weapon. There was evidence from which it might have found otherwise. The purpose of the increased penalty under subsection B of \\u00a7 13-249 is to deter criminals from carrying weapons which have the potential of inflicting death. State v. Church, 109 Ariz. 39, 504 P.2d 940 (1973). Such conduct is a proper subject for increased punishment. State v. Corrao, 115 Ariz. 55, 563 P.2d 310 (App.1977). It was fundamental error to impose such punishment, however, without a factual determination that appellant was guilty of the conduct for which it was imposed. In that respect, we disagree with the holding of Division One of this court in State v. Kidd, 116 Ariz. 479, 569 P.2d 1377 (App.1977), and respectfully decline to follow it.\\nThe judgment is affirmed. The sentence, being in excess of the penalty provided under A.R.S. \\u00a7 13-249(A), is vacated and the case remanded for resentencing under that subsection.\\nHOWARD and HATHAWAY, JJ., concur.\\n. \\u00a7 13-241. Definition of assault and battery\\nA. An assault is an unlawful attempt, coupled with a present ability, to commit a physical injury on the person of another.\\n. Appellant's companions testified that he was hitchhiking, and one of them testified the knife was already in the vehicle when they picked him up. Appellant testified they were drinking heavily and the next thing he remembered was being in a police car. He denied owning the knife or any recollection of seeing it on the night in question.\"}"

arizona/162875.json

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+"{\"id\": \"162875\", \"name\": \"Hiroyoshi CHO and Ryuko Cho, Plaintiffs, Judgment Creditors-Appellees, v. AMERICAN BONDING COMPANY, Defendant, Judgment Debtor-Appellant\", \"name_abbreviation\": \"Cho v. American Bonding Co.\", \"decision_date\": \"1997-09-18\", \"docket_number\": \"No. 1 CA-CV 97-0004\", \"first_page\": \"593\", \"last_page\": \"600\", \"citations\": \"190 Ariz. 593\", \"volume\": \"190\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:28:21.358562+00:00\", \"provenance\": \"CAP\", \"judges\": \"PATTERSON and NOYES, JJ., concur.\", \"parties\": \"Hiroyoshi CHO and Ryuko Cho, Plaintiffs, Judgment Creditors-Appellees, v. AMERICAN BONDING COMPANY, Defendant, Judgment Debtor-Appellant.\", \"head_matter\": \"951 P.2d 468\\nHiroyoshi CHO and Ryuko Cho, Plaintiffs, Judgment Creditors-Appellees, v. AMERICAN BONDING COMPANY, Defendant, Judgment Debtor-Appellant.\\nNo. 1 CA-CV 97-0004.\\nCourt of Appeals of Arizona, Division 1, Department E.\\nSept. 18, 1997.\\nReview Denied Feb. 18, 1998.\\nLee, Stegall & Katz, P.C. by Philip B. Whitaker, Phoenix, and Bays, Deaver, Hiatt, Lung & Rose by Harvey J. Lung, Honolulu, HI, for Plaintiffs, Judgment Creditors-Appellees.\\nGuttilla & Murphy, P.C. by Nicholas C. Guttilla and Victoria Gruver, Phoenix, for Defendant, Judgment Debtor-Appellant.\\nMcGregor, J., did not participate in the determination of this matter.\", \"word_count\": \"4392\", \"char_count\": \"27095\", \"text\": \"OPINION\\nTHOMPSON, Presiding Judge.\\nAppellees obtained a judgment in Hawaii that resulted from the confirmation of an arbitration award concerning the breach of a construction contract. Appellant, which is the contractor's surety, was in receivership in Arizona when the judgment was entered in Hawaii. When appellees attempted to domesticate their judgment in Arizona, appellant moved to vacate it on the grounds that the confirmation of an arbitration award is not entitled to full faith and credit and the Hawaii judgment is invalid because it was entered during the time that all proceedings against appellant were stayed by the Arizona receivership court.\\nWe hold that the judgment obtained in Hawaii is entitled to full faith and credit in Arizona. We further conclude that the judgment is not invalid.\\nFACTS AND PROCEDURAL HISTORY\\nEarl T. Yonemura dba E.T. Yonemura General Building Contractor, Ltd. (Yonemura) contracted to build a house for Hiroyoshi Cho and Ryuko Cho in Honolulu. American Bonding Company (ABC) was the surety for Yonemura. Problems arose during construction, and in August 1993, the Chos filed a demand for arbitration in Hawaii with the American Arbitration Association (AAA).\\nBefore an arbitration hearing was held, the Chos, Yonemura, and ABC mediated their dispute under the auspices of AAA. As a result of the mediation, in April 1994, the parties entered into a settlement agreement under which Yonemura and ABC agreed to certain terms and conditions concerning completion of the Chos' residence.\\nIn September 1994, the Chos filed a demand for arbitration, alleging that Yonemura and ABC had breached the settlement agreement. The Chos, Yonemura, and ABC appeared at an arbitration hearing on November 18, 1994. Due to an illness suffered by Yonemura, the arbitration was suspended after one day and rescheduled for February 1995. However, the arbitration panel eventually continued the hearing when ABC took over construction of the residence and anticipated completing construction by March 1, 1995.\\nIn the meantime, in early February, an order appointing a receiver to rehabilitate ABC was entered in the Maricopa County Superior Court (superior court). The order also granted a 120-day injunction, providing that:\\n[E]xeept by leave of this Court, during the pendency of the Receivership order herein, the Defendant and all customers, principals, investors, creditors, stockholders, lessors, and other persons except for the Receiver, seeking to establish or enforce any claim, right or interest against or on behalf of ABC, and all others acting for or on behalf of such persons including attorneys, trustees, agents, sheriffs, constables, marshals, and other officers and their deputies and their respective attorneys, servants, agents, employees, be and hereby are enjoined from:\\n1. Commencing, prosecuting, continuing or enforcing any claim, suit or proceeding against ABC or against any of its assets for a period of one-hundred twenty days (120) from the entry of this Order \\u2014\\nThe arbitration was continued to July 3, 1995. On May 31, the superior court continued the injunction and stay indefinitely. ABC submitted to the arbitrators a motion to stay arbitration, and the Chos opposed the motion. Based on two recent rulings of the First Circuit Court of Hawaii (circuit court), the arbitrators denied the motion, reasoning that (1) the Arizona court did not have jurisdiction over the parties, therefore, granting the motion to stay was not a matter of full faith and credit but rather one of comity which could be refused, (2) no judgment had been entered against ABC, and (3) any request for a stay must be brought by the receiver rather than ABC.\\nThe arbitration hearing proceeded as scheduled on July 3 \\u2014 8. Yonemura was represented by counsel at the hearing, but ABC was neither present nor represented at the hearing. The arbitrators issued a partial final decision and award on September 1, 1995. The award was in favor of the Chos and against Yonemura and ABC, jointly and severally, in the amount of $550,193. The award was served on ABC.\\nThe Chos filed a motion to confirm and enter judgment upon the arbitrator's decision and award in the circuit court. Yonemura moved the court to vacate the decision and award; ABC joined in the motion. Yonemura argued that the arbitration panel exceeded its powers, was guilty of misconduct, entered only a partial award, failed to grant Yonemura a full and fair hearing, and improperly rendered the award against an individual who was not a party to the construction contract. Neither Yonemura nor ABC argued that the arbitrators had erred in denying ABC's motion to stay the arbitration pending the receivership.\\nThe circuit court denied the motion to vacate the arbitrators' decision and award and entered an order confirming the decision and award and entering judgment on it. Yonemura appealed from the judgment, but the Supreme Court of Hawaii dismissed the appeal on the ground that the notice of appeal was untimely. ABC did not appeal the judgment.\\nThe Chos filed in the superior court an exemplification of the order confirming the arbitration award and entering judgment along with a notice of filing of the foreign judgment. The receiver of ABC filed a motion to vacate the Hawaii judgment or, alternatively, to stay enforcement of the judgment. The receiver argued that the Arizona court need not apply full faith and credit to the Hawaii judgment because the arbitration award and judgment were entered in violation of the Arizona court's injunction in the receivership proceeding. The judgment domestication proceeding was transferred to the superior court judge who was overseeing the receivership of ABC.\\nThe superior court denied the motion to vacate the judgment, but stayed enforcement of the judgment pending further decision by the court in the receivership proceedings. The receiver for ABC timely appealed from the order denying the motion to vacate the judgment.\\nDISCUSSION\\nA. Full Faith and Credit\\nFor its first issue on appeal, ABC argues that confirmation of an arbitration award is not a judicial proceeding entitled to full faith and credit. It contends that because the Hawaii court that reviewed the arbitration award was precluded by statute from exam ining the merits of the dispute, the judicial confirmation cannot have preclusive effect.\\nThe Full Faith and Credit Clause of the United States Constitution reads: \\\"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.\\\" U.S. Const. art. IV, \\u00a7 1. The enabling statute, 28 U.S.C. \\u00a7 1738, provides:\\nSuch . records and judicial proceedings [of any State, Territory or Possession of the United States] . shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.\\nThus, in practice, the Full Faith and Credit Clause and the statute that implements it require a validly rendered judgment of the court of one state to be given the same validity and effect in every other state as it has in the state rendering it. Morris v. Jones, 329 U.S. 545, 547, 67 S.Ct. 451, 453-54, 91 L.Ed. 488 (1947); Lofts v. Maricopa County Superior Court, 140 Ariz. 407, 410, 682 P.2d 412, 415 (1984). This requirement is effectuated when a state recognizes a sister state's final judgment as binding and conclusive. Fremont Indem. Co. v. Industrial Comm'n, 144 Ariz. 339, 342, 697 P.2d 1089, 1092 (1985).\\nIn this appeal, we consider whether the trial court properly denied ABC's motion to vacate the Hawaii judgment, thus giving full faith and credit to a judgment that resulted from the confirmation of an arbitration award. An unreviewed arbitration is not a judicial proceeding and full faith and credit is not statutorily required as to a resultant award. See McDonald v. City of West Branch, Mich., 466 U.S. 284, 288-89, 104 S.Ct. 1799, 1801-03, 80 L.Ed.2d 302 (1984); Caldeira v. County of Kauai, 866 F.2d 1175 (9th Cir.1989), cert. denied, 493 U.S. 817, 110 S.Ct. 69, 107 L.Ed.2d 36 (1989). However, where an arbitration award is reviewed in state court, the federal courts and courts of other states are required to give the same effect to the resulting state court judgment as it would have in the rendering state's own courts. Caldeira, 866 F.2d at 1178; see also, Ryan v. City of Shawnee, 13 F.3d 345, 347 (10th Cir.1993) (while other jurisdictions may generally give preclusive effect to a judgment confirming arbitration awards when such judgments are res judicata in the issuing jurisdiction, full faith and credit here denied to arbitration decision which merely addressed procedural due process matters without addressing substantive merits of firefighter's federal discrimination claims); see generally Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 381, 105 S.Ct. 1327, 1332, 84 L.Ed.2d 274 (1985) (same preclusive effect of full faith and credit afforded to arbitrated Title VII claims given to arbitrated federal antitrust claims) (citing Kremer v. Chemical Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982)).\\nABC argues that the Hawaii circuit court decision confirming the arbitration award does not have preclusive effect because the parties did not have an opportunity to deal with the merits of the dispute in the judicial confirmation proceedings. The court in Caldeira considered this argument, applying the state law and policies of Hawaii.\\nThe Caldeira court went through a three-step analysis before determining, under Hawaii law, that the arbitration award in question should be given preclusive effect. 866 F.2d at 1179. That court found the issues and parties at arbitration were the same and it could not be \\\"seriously contested that the state court's confirmation of the arbitrator's award was anything but a final judgment on the merits.\\\" Id. at 1179. It noted that under Hawaii statutes, confirmation of an arbitration decision constituted an entry of judgment which has the same force and effect as a judgment in an action. Id. (citing Haw.Rev.Stat. (H.R.S.) \\u00a7 658-12 and 658-14).\\nIn addition, the Caldeira court considered whether Caldeira had a \\\"full and fair opportunity\\\" to litigate his claim in the state proceedings. Id. at 1180. It found the minimal procedural requirements of due process were satisfied because Caldeira was represented by counsel during the two-day arbitration hearing and submitted documentary exhibits, called witnesses, and testified on his own behalf. Id. He also actively participated in the state court confirmation proceedings both in writing and at oral argument. Id. Thus, the Caldeira court held that the state court's confirmation of the arbitration award was entitled to full faith and credit and barred his civil rights action in federal court.\\nABC points out that the federal district court in Lum v. City and County of Honolulu, 728 F.Supp. 1452 (D.Hawai'i 1989), declined to apply Caldeira for the reason that \\\"the court in Caldeira apparently believed that the plaintiff was afforded some review of the merits of the arbitrator's decision,\\\" while Lum did not receive any judicial consideration of the merits of the arbitrator's decision. The Lum court pointed out that H.R.S. \\u00a7 658-8 provided that the circuit court \\\"shall\\\" grant an order confirming an arbitration award when the prevailing party merely demonstrates that the award has not been vacated or modified pursuant to \\u00a7 658-9 or 658-10. 728 F.Supp. at 1456. Neither of those sections permits the circuit court to review the merits of the arbitrator's decision; \\u00a7 658-9 allows a party to move to vacate an award for reasons such as corruption, fraud, or undue means in the procurement of the award; evident partiality or corruption in the arbitrators; arbitrator misconduct by which the rights of the party were prejudiced; or the arbitrators exceeded their powers. Id. Section 658-10 allows the court to modify or correct an award where there is a miscalculation or mistaken description, the arbitrators awarded upon a matter not submitted to them, or the award is imperfect in a matter of form. Id.\\nThe Lum court noted that under these statutes, judicial reversal of an award was not permitted even if the arbitrator may have erred in applying the law, finding the facts, or entering an award that is contrary to the evidence. Id. Thus, it reasoned that because Lum had been unable to obtain any judicial review of the merits of the arbitration award, he was not precluded from litigating the merits of his Title VII claim in federal court. Id. at 1460-61. It also based its decision on the fact that the Supreme Court had consistently held that an arbitration proceeding is an inadequate forum for the resolution of statutory and constitutional rights. Id. at 1459.\\nWe conclude that Lum and the other cases on which ABC relies \\u2014 Ryan v. Shawnee, 13 F.3d 345 (10th Cir.1993); Jalil v. Avdel Corp., 873 F.2d 701 (3d Cir.1989), cert. denied, 493 U.S. 1023, 110 S.Ct. 725, 107 L.Ed.2d 745 (1990); Kirk v. Board of Educ. of Bremen Community High School Dist., No. 228, Cook County, Ill., 811 F.2d 347 (7th Cir.1987); and Bottini v. Sadore Management Corp., 764 F.2d 116 (2d Cir.1985) \\u2014 are not controlling on the instant facts. All of those cases involve Title VII claims and questions of whether arbitration under collective bargaining agreements could preclude an employee's federal discrimination claim. While the Supreme Court has ruled that arbitration as provided for by collective bargaining agreements is inadequate for resolving federal statutory and constitutional rights, it has not addressed whether full faith and credit should apply to contract claims fully and fairly litigated on the merits in a consensual arbitration. See Lum, 728 F.Supp. at 1459 (citing McDonald, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 and Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)).\\nCourts may require judicial review of the merits of an arbitration award before allowing the judgment to preclude litigation of a statutory employment discrimination claim. See Ryan, 13 F.3d at 348. The same pre cautions are unnecessary in the context of a fully and fairly litigated construction contract dispute.\\nThe McDonald Court noted the difference between arbitrations involving contract matters and those concerning alleged violations of statutory and constitutional rights when it commented:\\n[Although arbitration is well suited to resolving contractual disputes, our decisions in Barrentine [v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981)] and Gardner-Denver compel the conclusion that it cannot provide an adequate substitute for a judicial proceeding in protecting the federal statutory and constitutional rights that \\u00a7 1983 is designed to safeguard.\\n466 U.S. at 290, 104 S.Ct. at 1803. Thus, the Supreme Court indicated that arbitration of commercial contract disputes is an adequate substitute for a judicial proceeding on the merits, and is entitled to full faith and credit.\\nFurthermore, Hawaii state courts have consistently expressed strong support for resolution of commercial disputes by arbitration; they note that the proclaimed public policy is to encourage arbitration as a means of settling differences without litigation. See, e.g., Association of Owners of Kukui Plaza v. Swinerton & Walberg Co., 68 Haw. 98, 705 P.2d 28, 35 (1985) (arbitration under construction contract); Gadd v. Kelley, 66 Haw. 431, 667 P.2d 251, 255 (1983) (arbitration of lease dispute). Given this philosophy and the Hawaii statutory scheme that makes the confirmation of an arbitration award an enforceable judgment, we find no indication that the judgment against Yonemura and ABC would not be enforced in Hawaii.\\nAs noted above, the application of the Full Faith and Credit Clause requires that a judgment of a Hawaii court be given the same validity and effect in Arizona as it would have in Hawaii. We believe the judgment at issue would be enforced in Hawaii.\\nAccordingly, following Caldeira, we conclude that the Hawaii judgment against Yonemura and ABC is entitled to full faith and credit in Arizona. ABC appeared at the arbitration proceeding in November 1994. Although ABC did not appear for the arbitration proceeding on July 3 \\u2014 8, Yonemura did appear and was represented by counsel. The contract in dispute was with Yonemura, and he was in the best position to defend his work under the contract. Further, ABC has not alleged that its rights were not adequately protected by Yonemura in the arbitration proceedings.\\nThe two arbitrators produced an eleven-page decision and award that contains extensive findings and conclusions. Yonemura moved to vacate the arbitration award, raising eight statutory grounds, and ABC joined in the motion. Yonemura also filed a memorandum in opposition to the Chos' motion to confirm the award. A hearing was held on both motions in the Hawaii circuit court at which both ABC and Yonemura appeared. In denying the motion to vacate the award, the court found in part that Yonemura was individually liable because he was a party to the settlement agreement, that the arbitration panel had not abused its discretion in denying a request for continuance, and that the panel decided all issues submitted to it in the arbitration proceeding and the parties had an opportunity to present evidence, briefing and argument. Yonemura filed an untimely appeal from the award confirmation and judgment, and ABC did not appeal.\\nABC had a full and fair opportunity to defend against the Chos' claims. Under Hawaii law, the state court's confirmation of the arbitrator's award constituted a final judgment on the merits. See Caldeira, 866 F.2d at 1179. Therefore, the Hawaii judgment against Yonemura and ABC is entitled to full faith and credit in Arizona, and we accordingly affirm the trial court's denial of ABC's motion to vacate the judgment.\\nB. Effect of Violation of Injunction\\nFor its second issue, in what appears to be an alternative argument, ABC argues that if the Hawaii judgment is not entitled to full faith and credit in Arizona, the trial court erred in refusing to vacate the judgment because it was obtained in violation of an Arizona receivership court order enjoining the pursuit of claims against ABC. As this issue is posed, we need not consider it because we have held that the judgment is entitled to full faith and credit in Arizona. However, because ABC's argument also goes to the validity of the judgment, we address it.\\nA foreign judgment may be attacked if the rendering court lacked jurisdiction over the person or subject matter, the judgment was obtained through lack of due process or was the result of extrinsic fraud, or the judgment was invalid or unenforceable. Pioneer Fed. Sav. Bank v. Driver, 166 Ariz. 585, 588, 804 P.2d 118, 121 (App.1990). ABC seems to be arguing that the judgment is invalid or unenforceable because it was entered in violation of the receivership court injunction.\\nThis situation is addressed in Morris v. Jones, 329 U.S. 545, 67 S.Ct. 451, 91 L.Ed. 488 (1947). There, Chicago Lloyds, an unincorporated association, was authorized to transact an insurance business in Illinois, and it qualified to do business in Missouri. Morris sued Chicago Lloyds in Missouri for malicious prosecution and false arrest. Before judgment was obtained in Missouri, Chicago Lloyds went into liquidation in Illinois, and the Illinois court issued an order staying suits against it. Morris had notice of the stay but continued to prosecute his action in Missouri; Chicago Lloyds withdrew from the suit and did not defend it. Morris received a judgment in Missouri and filed an exemplified copy of it as proof of his claim in the Illinois proceedings. The Illinois court disallowed the claim even though Morris contended that its allowance was required by the Full Faith and Credit Clause.\\nIn considering the case, the United States Supreme Court noted that proof and allowance of claims were distinct from distribution because they did not deal directly with any property. Morris, 329 U.S. at 549, 67 S.Ct. at 455. The Court explained, \\\"[t]he establishment of the existence and amount of a claim against the debtor in no way disturbs the possession of the liquidation court, in no way affects title to the property, and does not necessarily involve a determination of what priority the claim should have.\\\" Id. The Morris Court further noted that the obligation to receive a judgment in evidence in the liquidation proceedings was no more derogatory than the obligation to receive in evidence a promissory note or other admissible evidence of debt. Id. at 550, 67 S.Ct. at 455.\\nConsidering the argument that Morris would not have been able to pursue his action in Illinois once the stay had been entered, the Court stated that \\\"[t]he full faith and credit to which a judgment is entitled is the credit which it has in the State from which it is taken, not the credit that under other circumstances and conditions it might have had.\\\" Morris, 329 U.S. at 551, 67 S.Ct. at 456. Accordingly, the Court concluded that the Missouri judgment was final and conclusive in all courts under the Full Faith and Credit Clause and thus that the nature and amount of Morris' claim could not be challenged or retried in the Illinois proceedings. Id. at 552, 67 S.Ct. at 456-57. Responding to the argument that the Illinois stay order should have been given full faith and credit by the Missouri court, the Court noted that the place to raise that defense was in the Missouri proceedings. Id.\\nAlthough the issue addressed in Morris has not been directly decided in Arizona, this court has noted that \\\"when a creditor's suit is pending in another state at the time the debtor's receiver is appointed, that suit may still be prosecuted to judgment, and a judgment so obtained will establish the rightful amount of the receivership demand.\\\" Academy Life Ins. Co. v. Odiorne, 165 Ariz. 188, 192, 797 P.2d 727, 731 (App.1990) (citing Fletcher Cyc. Corp. \\u00a7 7800 (1989)).\\nIn light of Morris, we conclude that the continuation of the arbitration and confirmation proceedings against Yonemura and ABC in Hawaii after the issuance of the injunction and stay order in Arizona did not render the resulting judgment invalid. The purpose of the Hawaii proceedings was to establish the Chos' breach of contract claim against Yonemura and determine the amount of their damages. This judgment could then be used to establish the amount of the Chos' demand in the receivership proceedings. The place to raise the defense of the injunction and stay was in Hawaii; although ABC raised the issue before the arbitrators, it did not challenge their decision in the court confirmation proceedings. Thus, under Morris, ABC may not challenge in Arizona the validi ty of the Hawaii judgment on the basis of the violation of the stay order.\\nIn summary, we conclude that the superior court did not err in denying ABC's motion to vacate the Hawaii judgment.\\nC. Attorneys' Fees Request\\nThe Chos request an award of attorneys' fees incurred in this appeal pursuant to A.R.S. \\u00a7 12-1514. This statute allows the court to award costs and disbursements incurred in seeking the confirmation, modification, or correction of an arbitration award, judgment or decree. It does not apply here because this appeal involves domestication of a foreign judgment that resulted from an arbitration award rather than confirmation of the award. Therefore, we deny the fee request.\\nPATTERSON and NOYES, JJ., concur.\\n. H.R.S. \\u00a7 658-12 provides:\\nUpon the granting of an order, confirming, modifying, or correcting an award, the same shall be filed in the office of the clerk of the circuit court and this shall constitute the entry of judgment. An appeal may be taken from such judgment as hereinafter set forth. H.R.S. \\u00a7 658-14 reads:\\nThe judgment entered in accordance with section 658-12 has the same force and effect, in all respects as, and is subject to all the provisions of law relating to, \\u00e1 judgment in an action; and it may be enforced, as if it had been rendered in an action in the court in which it is entered.\\n. But the arbitration in Ryan never reached the issue raised by Ryan's racial discrimination claim and so whether judicial review was limited or not, the judicial affirmation of the arbitrator's finding of procedural violations in Ryan's case could not preclude Ryan's pursuit of his substantive discrimination claim. See Matusik v. Arizona Public Serv. Co., 141 Ariz. 1, 3, 684 P.2d 882, 884 (App.1984) (prior judgment is conclusive only as to issues actually decided, or which could have been decided). \\\"An arbitrator may not have the authority to enforce \\u00a7 1983.\\\" McDonald, 466 U.S. at 290, 104 S.Ct. at 1803. Thus, the Ryan result is explainable solely by reference to the law of finality of judgments.\\n. The Supreme Court noted that Congress intended \\u00a7 1983 actions to be judicially enforced. McDonald, 466 U.S. at 290, 104 S.Ct. at 1803. Conversely, commercial disputes are subject to arbitration only pursuant to the parties' agreement, which reflects an intent that such disputes be arbitrarily resolved. See, e.g., Ariz.Rev.Stat. Ann. \\u00a7 12-1501, et seq.\\n. The Court also cited the fact that \\\"the union has exclusive control\\\" of an employee's grievance in the type of arbitration involved in McDonald as \\\"an additional reason why arbitration is an inadequate substitute for judicial proceedings.\\\" 466 U.S. at 291, 104 S.Ct. at 1803. In a commercial setting, as here, the parties themselves control how their claims are presented in arbitration.\\n. In the motion to vacate filed in the confirmation proceedings, Yonemura, joined by ABC, charged that the arbitrators violated H.R.S. \\u00a7 658-9(3) by failing to postpone the hearings despite good cause. They argued that, \\\"[i]n the meantime, [ABC] was placed in receivership. [ABC] requested a postponement until certain receivership issues were resolved. The Panel denied ABC's request____ As a result, ABC was without funds to pay counsel and ABC was unrepresented at the hearing.\\\" In our view, this argument does not constitute an argument that the Arizona court's injunction and stay order prevented the arbitration proceeding from continuing.\"}"

arizona/1969444.json

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+"{\"id\": \"1969444\", \"name\": \"DANIEL JOHNSON et al., Respondents, v. JOHN McLAUGHLIN et al., Appellants\", \"name_abbreviation\": \"Johnson v. McLaughlin\", \"decision_date\": \"1884-05\", \"docket_number\": \"\", \"first_page\": \"493\", \"last_page\": \"503\", \"citations\": \"1 Ariz. 493\", \"volume\": \"1\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T21:07:29.601012+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"DANIEL JOHNSON et al., Respondents, v. JOHN McLAUGHLIN et al., Appellants.\", \"head_matter\": \"DANIEL JOHNSON et al., Respondents, v. JOHN McLAUGHLIN et al., Appellants.\\nLaws of United States Relating to Acquisition of Title to Mineral Lands on the public domain are paramount, and the laws of a state or territory, so far as they conflict therewith, are entirely nugatory.\\nLocation of Mining Claim Recorded in Strict Compliance with Laws of United States and of the territory of Arizona, in. the recorder\\u2019s office of the proper county, is valid, although not recorded with, nor examined by, the local district recorder, in compliance with the local regulations of the mining district.\\nFailure to Comply with Local Rf.gulations of Mining District does not Work Forfeiture of a prior location, unless such regulations prescribe a forfeiture as the penalty of their non-observance.\\nAppeal from the district court of the first judicial district, \\u25a0county of Pima. The opinion states the facts.\\nBen, Morgan, for the appellants.\\nThe only point in this case is whether the right to a mine once acquired by complete compliance with the laws of the United States and of this territory can be taken away by reason of tbe omission to comply with a district regulation to which no penalty is attached. In other words, whether the discoverer of a ledge, after marking it upon the ground by monuments, so that his claim may be readily traced, and placing written notices upon the monuments defining the extent of the claim, can be divested of his property and possession because of non-compliance with a district law which serves no useful end or purpose. The revised statutes of the United States, section 2324, provide that \\u201call records of mining claims hereafter made shall contain the names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim.\\u201d The party who makes the record is the recorder. Suppose he should omit any of the above requisites, would the locator lose his rights, and if so, upon what theory ? It will be observed that what the locator is compelled to do is entirely different from the duties of the recorder. The only object of a record under the law is to give notice of the ownership of the claim. Prior to the enactment of that law, it was for the double purpose of giving notice and of' preventing a swinging of the claim.\\nIn the case of the Golden Fleece Co. v. Cable Con. Co,, 12 Nev. 330, the court say: \\u201cThe requirements of the law as to what the record shall show are evidently designed to fix the locus of the claim, in order to prevent floating. But the monuments defining the claim on the ground answer this purpose better than the record, and if they are to be erected in the beginning, there can be but little use ever to make a record.\\u201d\\nIn this ease Johnson went upon the ground located as the \\u201cBed Top,\\u201d with its locus fixed, as the court finds, by seven monuments, with the notice upon it, and seen by him, and proceeded to locate the identical claim for the reason, as he says: \\u201cThe notice had run out fifteen days; it had been subject to re-location for fifteen days.\\u201d The court finds that under the district laws, \\u201cthe recorder is prohibited from recording the claim (if he finds a prior valid claim thereto,\\u201d so that when he went upon the \\u201cBed Top \\u201d claim he was confronted with an insuperable obstacle to1 the record of the Montreal. The \\u201cBed Top\\u201d was already a valid location under the United States laws.\\nForfeiture is a question of fact, and the doctrine is laid down in the following cases: McGarrity v. Byington, 12 Cal. 426; Colman v. Clements, 23 Id. 245; Bell v. Bed Rock T. & M. Co., 36 Id. 214. Abandonment is a question of fact resting upon the intent of the parties. It would be absurd to urge estoppel.\\nJEarll and Smith, for the respondents.\\nCounsel for appellant assume that the point presented by the record in this case is \\u201cwhether the right to a mining claim once attached can be taken away by reason of noncompliance with the law of the district.\\u201d In this position counsel is in error. He fails to make the distinction existing between a right attached^, and a forfeiture of such right by reason of subsequent non-compliance with some rule of the mining district in which the claim is situated, the observance of which is necessary to the right of continued possession. The real point involved is, can any one qualified to occupy and possess the mineral lands of the United States, attain the full right to hold the same except under-compliance with the acts of congress in relation thereto, and. such other laws of the territory, and of the mining district in which such lands are situated, as are not repugnant to the laws of the United States ?\\nIt will not be questioned that the miners of a mining district have the right to establish rules and regulations concerning the location and occupation of the mineral lands of the United States, and that such rules have the force of law when not inconsistent with the laws of the United States. U. S. K... S., secs. 2322, 2324; see also Comp. Laws, 512, sec. 1.\\nIt is made imperative by the rules of Smith\\u2019s mining district, that all mining claims located In that district shall be recorded in the mining records of the district within thirty days after the same are located. The observance of this rule is made a condition precedent to the right to hold a mining claim, and without complying with the rule the right to hold possession is not attained; it has not attached.\\nThe reason of this rule is so apparent that its discussion is unnecessary. It is obvious that its enforcement is as-necessary as any other act of location required by the laws of the United States. Each act required to be done, when performed, operates as matter of notice of the right to occupy, and that it is a valid claim.\\nThe record in this case shows that appellants did not do \\u2022any work upon the claim in controversy until after the entry thereon by respondents, and while respondents were in possession, and had the right of possession. The location of appellants was not valid\\u2014no right by them had been acquired. . Hot having complied with the law of location, the claim was open to entry and occupation.\\nIt is the policy of the government to have\\u201d the mineral lands occupied and worked, and not taken and held for mere speculative purposes; and those who will not abide by the law governing this license must give way to those who will comply with its plain and liberal provisions.\\n\\u201cThe mining laws of the United States recognize and sanction the custom among the miners of organized mining \\u25a0districts, to adopt local laws or rules governing the location, recording, and working of claims, not in conflict with the state or federal legislation.\\u201d Golden Fleece v. Cable Con. M. Co., 12 Hev. 312.\\n\\u201cIn order to secure the right of possession to a mining claim, there must be a compliance, not only with the laws of the United States, but also with such local regulations of the mining district as are not in conflict therewith.\\u201d Gleeson v. Martin White M. Co., 13 Nev. 442.\\n\\u201cThe rules and customs which point out the manner of locating mining ground are conditions precedent which must be substantially complied with.\\u201d\\n\\u201c The rules and customs of the miners in a particular district are laws, and constitute the American common law on mining the precious metals.\\u201d King v. Edwards, 1 Mont. 235.\\n\\u201cThe right to occupy, explore, and extract the precious minerals in the mineral lands of the United States becomes vested in the party who locates these lands according to the local rules and customs of the mining district in which they are situated.\\u201d Robertson v. Smith, 1 Mont. 410.\\nTo enable a party to maintain a right to a mining claim after the right is acquired, it is ifecessary that the party continue substantially to comply with the mining rules and customs established and in force in the district where the claim is situated. Strang v. Ryan, 46 Cal. 33.\\nWe hold that appellants at the time of the entry of re spondents upon the mining claim set out in this action had not acquired a right to the possession, because they had not complied with the law concerning location and occupancy: but simply for the sake of argument let us accept the theory of counsel for appellants, and admit that, at a time prior to the entry of respondents, appellants had attained the right to occupy; and admit still further, that the rule making a record of the notice in the district is a condition subsequent, and relates only to the right of continued occupancy. Even in that view of the case, we hold that such right was lost by reason of non-compliance with the law requiring the recording of the notice of location in the district.\\n\\u201c The rules and customs of miners, that require locators to do a certain amount of work upon their claims, are conditions subsequent, and the law presumes that such locators forfeit their rights to possess and mine the same by a failure to comply therewith, although no penalty is specified in such rules and customs.\\u201d King v. Edwards, 1 Mont. 235.\\n\\u201cA right to hold and work a mining claim when acquired may be lost by a failure or neglect to comply with the rules and regulations of the miners relative to the acquisition and tenure of claims in force in the bar or diggings where the claim is located; and if such rules and regulations are not complied with by those holding claims in the district, the ground becomes once more open to the occupation of the nest comer.\\u201d St. John v. Kidd, 26 Cal. 263.\\nIt will be observed by the following decisions of the general land office that there is perfect accord in that department of government with the judicial determinations hereinbefore referred to.\\n\\u201cThe mining laws of the United States recognize and sanction the custom among the miners of organized mining districts to adopt local laws or rules governing the location, recording, and working of claims, not in conflict with the state or federal legislation.\\u201d\\n\\u201cThe rules and customs which point out the manner of locating mining ground are conditions precedent which must be substantially complied with.\\u201d Mineral Lands, 418.\\n-In order to secure the right of possession to a mining claim there must be a compliance not only with the laws of the United States, but also with such local regulations of the mining district as are not in conflict therewith.\\u201d 8 Land Owner, 60.\\n. \\u201cThe right to occupy, explore, and extract the precious minerals in the mineral lands of the United States, becomes vested in the party who locates these lands according to the local rules and customs of the mining district in which they are situated.\\u201d\\n\\u201c To enable a party to maintain a right to a mining claim after the right is acquired, it is necessary that the party continue substantially to comply with the mining rules and customs established and in force in the district where the claim is situated.\\u201d Mineral Laws, 418. \\u2019\\nWe respectfully submit that the judgment of the court below is sustained by the law and evidence, and should be affirmed.\", \"word_count\": \"3856\", \"char_count\": \"22179\", \"text\": \"By Court,\\nFrench, J.:\\nThis action was heard before the district judge, without a jury, and full findings of fact filed.\\nHo exceptions were taken, nor any objections made to said findings by either party. The judgment was for the plaintiffs.\\nA motion for a new trial was made by the defendants, on the grounds of insufficiency of the evidence to justify the decision and judgment, and that the same were against law, which motion was denied, and this appeal is from both the judgment and order denying a new trial. On its first hearing in this court the judgment and order denying a new trial were reversed, and the cause ordered remanded for a new trial. On the announcement of which decision both parties expressed a wish for judgment upon the findings, without a new trial. Upon petition a rehearing was granted, and upon such rehearing questions of law on the findings only were discussed.\\nThe defendants located the claim in controversy on the twenty-first day of June, and recorded the same on the fifth day of July, in the recorder's office of the proper county.\\nThe plaintiffs located the same ground on the fifth day of August, and recorded the same with the district recorder on the sixth of August, and with the county recorder on the fourteenth of August, all of said acts being in the months of June, July, and August, 1879.\\nThe defendants' location and record being thus clearly first in priority, the only question in the case is, Did the defendants lose their right by failure to comply with the local requirement to record with the local district recorder, and to procure the district recorder to go upon the ground to' examine the same ?\\nThe sixth finding is as follows: \\\"That at the times of the respective locations of said premises, all the parties to this action were, and ever since have been, qualified to enter upon and explore the mineral lands of the United States, and locate, occupy, and purchase the same under the provisions of the laws of the United States; and the said defendants, and the said Daniel Johnson, in their respective locations of the premises, complied with the requirements of the laws of the United States and of this territory, and the rules and regulations of the said mining district, except the failure on the part of the defendants to file and record their location in the office of the recorder of said mining district, and their failure to procure the recorder of said district to go upon and examine the location as required by the local rules and regulations of said district.\\nThe court finds (sixth finding) that said defendants, in their location of the premises, complied with the requirements of the laws of the United States, and of this territory, and the rules and regulations of the mining district, except in this respect.\\nThe right to a mining claim rests: 1. On the laws of the United States; 2. On the laws of the state or territory; and 8. On the regulations of the mining district wherein the same is located.\\nBy the express provisions of the United States statutes these regulations must not conflict with either the laws of the United States or the laws of the state or territory in which the district is situated.\\nThe laws of the United States are of course paramount. The laws of either state or territory must not conflict with those of the United States, and so far as they do they are entirely nugatory to the extent of said conflict.\\nThe more distinctly these classes of provisions are preserved, the more certain and easy are the rules of decision upon the aggregate provisions of all of them. It is not proposed here to discuss generally, or even to enter upon the inquiry how, or how far legislative acts of state or territory may go upon the same subject-matter contained ifl the acts of congress, or how far local regulations may trench upon both United States and state or territorial provisions without legally conflicting with the paramount provisions. It is apparent that while the United States laws remain intact, a uniform basis is presented to the courts of ail the mineral portion of the country for decision.\\nThe legislature of a neighboring territory recently passed an act providing that the one hundred dollars' worth of labor or improvements on a mining claim which, by United States statutes, and entirely uniform decisions of all the courts, including the United States supreme court, may be made at any time during the year\\u2014must be made during the first month of the year.\\nThis is indirectly in the nature of an amendment to the United States statute. The same reasoning applies to attempted changes in the provisions of state or territorial acts by local rules and regulations.\\nIn view of the great magnitude of mining interests; the rules of decision as to title should be as certain as possible.\\nThe respondents in this case earnestly urge that appellants never attained a full title to the ground in controversy.\\nThe district regulation as to recording is in writing, and reads as follows: \\\"Section 2. All claims shall be recorded within thirty days after the location.\\\" Trans., folio 94.\\nThe right of appellant, whatever it was up to the expiration of these thirty days, can not be questioned.\\nUnder the sixth finding, hereinbefore cited in full, the right of appellants was perfect up to this time; and this brings us back to the only question in the case, did the appellants lose their right by failing to bring the district recorder upon the ground, etc., and recording their claim with the district recorder? By the local regulations this district recorder is required to go upon the ground to inspect it, and \\\"is inhibited from recording the claim if he finds a prior valid claim thereto.\\\" (Bindings of fact, transcript, folio 19.) What is a valid claim is a question of law. On the sixth day of August the district recorder, with one of the respondents herein, visited the ground and apparently decided this legal question in favor of the respondents.\\nThe appellants had already, on the twelfth day of July preceding, filed and recorded their claim with the county recorder. The territorial laws give sixty days in which to record these claims.\\nThe laws of the territory require all the claims of this kind (lode claims) to be filed and recorded in the office of the county recorder of the county in which such claims are situate, and give, as before stated, sixty days to make such filing and record after their location.\\nBut aside from all these questions, should the right of a party who has complied, in all respects, with the laws of the United States and the territory, and the rules and regulations of the mining districts, except in the particular before mentioned, be taken away for failure to comply with a district regulation which- provides no penalty or forfeiture for its non-observance ?\\nAt a time when the right to mining claims rested mainly on local rules, and before the existence of many of the present federal laws upon the subject, the supreme court of California, in McGarrity v. Byington, 12 Cal. 431, said: \\\"The failure to comply with any one of the mining rules and regulations of the camp is not a forfeiture of title. It would be enough to hold the forfeiture as a result of the non-compliance with such of them as make a non-compliance a cause of forfeiture.\\\"\\nIn Bell v. Bed Rock T. & M. Co., 36 Cal. 219, Mr. Justice Sanderson, speaking for the court, says: \\\"The objection taken to this instruction is that it directs the jury to find for the defendant, if they find from the evidence that the plaintiffs had failed to comply with certain mining rules and regulations without accompanying the same with a further charge, as to whether those rules and regulations declared a forfeiture as the result of such non-compliance. The failure of a party to comply with a mining rule or regulation can not work a forfeiture unless the rule itself so provides. There may be rules and regulations which do not provide that a failure to comply with their provisions shall work a forfeiture. If so, \\u00e1 failure will not work a forfeiture.\\\"\\nThe same doctrine is announced in English v. Johnson, 17 Cal. 118; Mr. Justice Baldwin delivering the opinion, and Mr. Chief Justice Field concurring. It has also been uniformly held by the supreme court of California, that abandonment of a mining claim may be proved under the general issue, but that forfeiture must be pleaded. Dutch Flat Water Co. v. Mooney, 12 Cal. 534; Wiseman v. McNulty, 25 Id. 230; Morenhaut v. Wilson, 52 Id. 263.\\nThe .forfeiture mentioned in these decisions is not the common-law forfeiture, but a mining-claim forfeiture, that is, the loss of the right, previously acquired, to hold and work a mining claim.\\nIt is worthy of remark that this line of decision occurred in California during the existence of the following statute: \\\"In actions respecting mining claims, proof shall be admitted of the customs, usages, or regulations established and enforced at the bar or digging embracing such claims, and such customs, usages, or regulations, when not in conflict with the constitution and laws of this state, shall govern the decision of the action.\\\" Act, sec. 621, p. 2. The above enactment makes no mention of federal constitution or laws, and some have inferred that no federal laws concerning these public mineral lands then existed. This is not the case-\\u2014the United States government simply forbore to enforce the laws and rights of the United States then existing as to these lands. It is also probable that the doctrine of state ownership of the mines, then extensively entertained, but long since entirely abandoned, had more or less to do with the terms of this enactment.\\nIt was made applicable to trials in justices' courts.\\nIt may be reasonably questioned whether the concluding words \\\"shall govern the decision of the action\\\" is a proper provision.\\nThe decision of all cases, it would seem, should be governed by all the law applicable thereto and all the legal evidence in the case. Gradually the courts of California adopted the principles of this enactment, and the courts and many of the legislatures of other mining states and territories recognized them to a greater or less extent, and finally the congress of the United States recognized and adopted them.\\nThe decisive character of the California enactment makes the decisions of her courts the more cogent, so far as denying forfeiture under said local regulations is concerned.\\nThe rule as to forfeiture above recited, to wit: that the prior locator shall not lose his right by failure to comply with a local regulation unless such regulation prescribes a forfeiture as a penalty of its non-observance, has been criticised in some instances, and in King v. Edwards, 1 Mont. 235, disapproved; but it has been recognized as a safe and conservative rule of decision in the nisi prius courts of this territory, tending to the permanence and security of mining titles, and we are not prepared to reject it in the present case.\\nJudgment and order reversed, and court below directed to enter judgment on the finding for appellants.\\nPlNNEY, J., concurred.\"}"

arizona/3236041.json

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+"{\"id\": \"3236041\", \"name\": \"STATE of Arizona, Appellee, v. Shawn Ryan GRELL, Appellant\", \"name_abbreviation\": \"State v. Grell\", \"decision_date\": \"2006-06-06\", \"docket_number\": \"No. CR-01-0275-AP\", \"first_page\": \"516\", \"last_page\": \"534\", \"citations\": \"212 Ariz. 516\", \"volume\": \"212\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T19:59:17.242417+00:00\", \"provenance\": \"CAP\", \"judges\": \"CONCURRING: RUTH V. McGREGOR, Chief Justice, MICHAEL D. RYAN, Justice and SHELDON H. WEISBERG, Judge.\", \"parties\": \"STATE of Arizona, Appellee, v. Shawn Ryan GRELL, Appellant.\", \"head_matter\": \"135 P.3d 696\\nSTATE of Arizona, Appellee, v. Shawn Ryan GRELL, Appellant.\\nNo. CR-01-0275-AP.\\nSupreme Court of Arizona, En Banc.\\nJune 6, 2006.\\nTerry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Phoenix, Amy S. Pignatella Cain, Assistant Attorney General, Tucson, Attorneys for the State of Arizona.\\nJames J. Haas, Maricopa County Public Defender by James R. Rummage, Deputy Public Defender, Phoenix, Attorneys for Shawn Ryan Grell.\\nPursuant to Article 6, Section 3 of the Arizona Constitution, the Honorable Sheldon H. Weisberg, Chief Judge of the Arizona Court of Appeals, Division One, was designated to sit in this matter.\", \"word_count\": \"11808\", \"char_count\": \"73110\", \"text\": \"OPINION\\nBERCH, Vice Chief Justice.\\n\\u00b6 1 Appellant Shawn Grell was convicted of first degree murder in 2000 following a bench trial on stipulated facts. After an aggravation and mitigation hearing, the judge sentenced Grell to death. While Grell prepared his direct appeal, the United States Supreme Court decided eases that held (1) that juries must find the aggravating factors that allow the imposition of a sentence of death, Ring v. Arizona (Ring II), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and (2) that mentally retarded defendants may not be executed, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In addition to raising sentencing issues under Ring, Grell claimed on appeal that, under Atkins, his mental retardation should preclude a death sentence in his case. In lieu of reviewing Grell's sentence for harmless error, this court ordered the trial court to reexamine the issue of Grell's mental retardation, applying the standards articulated in Atkins. State v. Grell (Grell I), 205 Ariz. 57, 63, \\u00b6 41, 66 P.3d 1234, 1240 (2003). On February 2, 2005, the trial court held another hearing and issued its ruling finding no mental retardation.\\n\\u00b6 2 For the appeal, this court ordered the parties to combine briefings on both the sentencing issues and the mental retardation issues. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes (\\\"A.R.S.\\\") section 13-4031 (2001). We affirm the trial court's finding that Grell did not prove mental retardation, but remand the case for jury sentencing.\\nI. FACTS\\n\\u00b6 3 On December 2, 1999, Shawn Grell picked up his two-year-old daughter, Kristen, from daycare. They drove around for several hours, during which time Grell bought a plastic gas can and gasoline. He then drove to a deserted area in Mesa, put his sleeping daughter on the ground, poured gasoline on her, and lit her on fire. She awoke and stumbled several feet while engulfed in flames before eventually succumbing to the smoke and flames. Grell drove to a nearby convenience store to buy beer. He told the clerk he had seen some kids set a dog on fire in a vacant lot. After driving around for several hours, Grell called the police and turned himself in at five o'clock the next morning. He later held a press conference at which he admitted killing his daughter.\\n\\u00b64 Grell was charged with first degree murder and child abuse. He waived a jury trial and instead the parties submitted to the trial judge a twenty-page narrative with forty-four attachments to serve as a basis for determining guilt. In September 2000, the judge convicted Grell of first degree murder, but acquitted him of child abuse.\\n\\u00b6 5 Grell agreed to the admission of the documents at the sentencing hearing, but attempted to preserve his right to a jury trial on sentencing issues by the following language: \\\"This stipulation shall in no way constitute a waiver of any rights the defendant may have to have a jury empanelled to determine the existence or absence of any aggravating and or mitigating circumstances.\\\" When Grell specifically requested that a jury be empanelled for the sentencing proceeding, however, the motion was denied.\\nA. Original Sentencing\\n\\u00b6 6 The combined aggravation and penalty phase hearing held in June 2001 included testimony from mental health experts, law enforcement officers, a burn injury expert, and Grell's sister. The State asserted three statutory aggravating factors: that Grell had previously been convicted of a serious offense; that the crime was committed in an especially heinous, cruel, or depraved manner; and that the victim was younger than fifteen years of age. See A.R.S. \\u00a7 13-703(F)(2), (F)(6), (F)(9) (1999). The trial court found all three.\\n\\u00b6 7 The prior serious offense was a 1996 conviction for robbery. See A.R.S. \\u00a7 13-703(H) (1999) (identifying robbery as a \\\"serious offense\\\" for purposes of use as a death penalty aggravator). That Kristen was younger than fifteen at the time of the crime was proven by a birth certificate showing her 1997 birthdate, which established that she was two years old at the time of her death.\\n\\u00b68 Citing the facts that Kristen was conscious when set on fire, that she had to have suffered immense physical pain, and that Grell should have foreseen the pain she would suffer, the court also found the crime \\\"especially cruel.\\\" In addition, while acknowledging that only a finding of cruelty was necessary to satisfy the \\u00a7 13-703(F)(6) aggravating factor, the court also found the crime heinous and depraved. The court cited the following factors in making these findings: (1) the crime was senseless; (2) the victim was helpless; (3) the victim was the defendant's own child; (4) the method of killing ensured that the victim would suffer \\\"unimaginable pain\\\"; (5) the method ensured that the body would be disfigured; and (6) the defendant made comments to a convenience store clerk after the murder about seeing a dog set on fire. The court stated that these facts satisfied the test set forth in State v. Gretzler, 135 Ariz. 42, 659 P.2d 1 (1983), and concluded that the manner of killing, in addition to being cruel, was also heinous and depraved.\\n\\u00b6 9 In mitigation, Grell alleged the statutory mitigating circumstance of mental impairment, see A.R.S. \\u00a7 13 \\u2014 703(G)(1), as well as non-statutory mitigators of mental retardation, learning disabilities, difficult childhood, and remorse. Much of the evidence at the hearing centered on Grell's claims of mental impairment, mental retardation, and a cognitive disorder caused by brain damage.\\n\\u00b6 10 Drs. Globus and Wicks testified for the defense and Drs. Mayberg and Scialli testified for the State. On the issues of mental impairment and brain damage, Dr. Globus testified that he initially diagnosed Grell with brain damage before having a PET scan done and before having Dr. Wicks do a blind neuropsychological evaluation of Grell. Dr. Globus is not certified to read PET scans, and those who prepared the report for him did not testify, facts noted by the court in its sentencing decision. Dr. Mayberg, the State's neuropsychologist who is qualified to read PET scans, testified that Grell's PET scan showed no brain damage. Dr. Scialli testified that he found no evidence of a cognitive disorder caused by brain damage, but instead diagnosed Grell as having only an anti-social personality disorder.\\n\\u00b6 11 The trial court ultimately found \\\"no credible evidence\\\" that Grell suffered from brain damage. The court instead accepted Dr. Scialli's diagnosis that Grell suffered from an anti-social personality disorder, symptoms of which include acting impulsively and using poor judgment.\\n\\u00b6 12 Drs. Globus and Wicks also testified regarding Grell's mental retardation, as did Dr. Scialli. The court acknowledged Grell's low IQ scores, ranging from 65 to 74, but weighted more heavily Dr. Scialli's testimony that Grell had adequate adaptive skills. In addition, the trial court observed that no one before Drs. Globus and Wicks had ever diagnosed Grell as having mental retardation and that Grell had demonstrated good adaptive skills by maintaining a false identity in order to be charged as a juvenile after he was arrested for robbery in 1996 when he was twenty years old.\\n\\u00b6 13 Finding no mitigation sufficiently substantial to call for leniency, the judge sentenced Grell to death.\\nB. First Appeal\\n\\u00b6 14 An automatic notice of appeal was filed. While the parties prepared for oral arguments, the United States Supreme Court handed down opinions in Atkins, 536 U.S. at 304, 122 S.Ct. 2242, and Ring II, 536 U.S. at 584, 122 S.Ct. 2428. This case was consolidated with other capital cases pending on direct appeal at the time for the purpose of deciding common Ring issues. State v. Ring (Ring III), 204 Ariz. 534, 65 P.3d 915 (2003). This court issued a decision in Grell I without considering the sentencing issues. 205 Ariz. at 60, \\u00b6 25, 66 P.3d at 1237.\\n\\u00b6 15 In Grell I, 205 Ariz. at 58, \\u00b6 2, 66 P.3d at 1235, this court addressed Grell's trial issue and affirmed his conviction, but remanded the matter to the trial court for a reevaluation of Grell's mental retardation claim in light of Atkins. The trial court had evaluated the mental retardation evidence as a mitigating factor rather than as a complete bar to execution. This court suggested that, on remand, the trial judge should apply A.R.S. \\u00a7 13-703.02 as a guide in future proceedings to ascertain the existence of mental retardation. Id. at 64, \\u00b6 42, 66 P.3d at 1241.\\nC. Remand for Mental Retardation Hearing\\n\\u00b6 16 Attempting to follow the procedures in A.R.S. \\u00a7 13-703.02, the trial judge first suggested appointing a \\\"pre-screening expert\\\" to test Grell's IQ. Rather than subjecting Grell to additional testing, the State and the defense stipulated that Grell's IQ was less than 70 and that further IQ testing was unnecessary.\\n\\u00b6 17 Before the mental retardation hearing, the parties briefed and argued the issue of burden of proof. The statute places the burden on the defendant to prove mental retardation by clear and convincing evidence. A.R.S. \\u00a7 13-703.02(G). Grell argued, however, that because mental retardation serves as a constitutional bar to execution, the standard should be no higher than a preponderance of the evidence. Rejecting Grell's claim, the trial court required Grell to prove mental retardation by clear and convincing evidence.\\n\\u00b6 18 During preparations for the hearing on remand, a new defense expert, Dr. Denis W. Keyes, interviewed Grell. The State requested that Grell also submit to examination by its new expert, Dr. Dan Martel. Before Dr. Keyes completed his report and before meeting with Dr. Martel, Grell told his attorneys he was \\\"not willing to cooperate any further with any of our experts or investigators.\\\" Shortly thereafter, Dr. Keyes completed his report, which concludes that Grell has mental retardation.\\n\\u00b6 19 After receiving Grell's written refusal to be examined, the State moved to \\\"Pre elude Defendant's Additional Mental Health Professional.\\\" The defense, which did not yet have Dr. Keyes' report, did not respond to the motion. As a result of these circumstances, the trial court granted the State's motion to preclude Dr. Keyes from testifying. After receiving Dr. Keyes' report, the defense filed a Motion to Reconsider, which was denied.\\n\\u00b6 20 Following the motion and Grell's refusal to cooperate, each side determined that it had no additional evidence to present and would rely on the evidence presented at the June 2001 hearing. The court held oral argument on December 7, 2004, at which each side argued from the same documents and the same testimony to the same judge as in the first hearing. Quoting extensively from the record and noting that it had previously found the State's experts more persuasive, the trial court found nothing \\\"to change its mind\\\" and concluded that Grell had failed to satisfy his burden of proving mental retardation by clear and convincing evidence.\\nII. Discussion\\nA. The Burden of Proof and Standard for Proving Mental Retardation\\n\\u00b6 21 Grell's major argument on this appeal is that the trial court used a flawed process in finding that he does not have mental retardation. He raises three challenges to the process: First, the State should bear the burden of proving lack of retardation to a jury beyond a reasonable doubt. Second, if the defendant must bear the burden of proof, the standard should be no higher than a preponderance of the evidence; the statutory requirement of clear and convincing evidence is unconstitutionally high. Third, the process should be bifurcated, with both a pretrial hearing before a judge to determine, under Atkins, whether mental retardation should bar the defendant's execution and, should the judge not find mental retardation, a jury component in which the jury must find, beyond a reasonable doubt, that the defendant does not have mental retardation.\\n\\u00b622 Grell's challenges raise issues of constitutional law and statutory construction, which we review de novo. State v. Moody, 208 Ariz. 424, 445, \\u00b6 62, 94 P.3d 1119, 1140 (2004). In analyzing statutes, however, we begin by assuming the statute is constitutional. State v. Casey, 205 Ariz. 359, 362, \\u00b6 11, 71 P.3d 351, 354 (2003).\\n1. Imposing burden on defendant to prove mental retardation\\n\\u00b623 For the hearing to determine whether Grell has mental retardation, this court instructed the trial court to apply the procedures in A.R.S. \\u00a7 13-703.02 \\\"insofar as is practical in the post-trial posture of this case.\\\" Grell I, 205 Ariz. at 64, \\u00b6 42, 66 P.3d at 1241. The statute places on \\\"the defendant . the burden of proving mental retardation by clear and convincing evidence\\\" in the pretrial hearing. A.R.S. \\u00a7 13-703.02(G). If the defendant's IQ is 65 or lower, a rebut-table presumption of mental retardation arises. Id. Because the parties here stipulated that Grell's IQ falls between 65 and 70, the trial court accordingly placed the burden on him to prove by clear and convincing evidence that mental retardation renders him ineligible for execution. Grell argues that if the defendant must bear the burden at all, the standard should be to prove retardation by no more than a preponderance of the evidence.\\n\\u00b624 This issue reaches our court because in Atkins, the Supreme Court declined to specify the procedures that states should use to identify mentally retarded individuals, deferring to the states to develop appropriate procedures. Atkins, 536 U.S. at 317, 122 S.Ct. 2242. The Court did so in part in acknowledgement of the lack of consensus regarding which defendants have mental retardation:\\nTo the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded____Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), with regard to insanity, \\\"we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.\\\" Id. at 405, 416-417, 477 U.S. 399,106 S.Ct. 2595, 91 L.Ed.2d 335.\\nAtkins, 536 U.S. at 317, 122 S.Ct. 2242. Although left to the states, the procedures developed must comport with the Constitution.\\n\\u00b625 The Supreme Court has confirmed that states may \\\" 'regulate the procedures under which [their] laws are carried out, including the burden of producing evidence and the burden of persuasion,' and [their] decision[s] in this regard [are] not subject to proscription under the Due Process Clause unless '[they] offend[ ] some principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental' \\\" Patterson v. New York, 432 U.S. 197, 201-02, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (quoting Speiser v. Randall, 357 U.S. 513, 523, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958)); see also Medina v. California, 505 U.S. 437, 445, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (calling Patterson the \\\"proper analytical approach\\\" in evaluating burdens of proof). Grell claims that imposing the burden on a defendant to prove mental retardation by clear and convincing evidence does offend deeply rooted principles.\\n\\u00b6 26 Grell initially argues that the burden on the issue of mental retardation should not fall on the defendant at all, but rather should be borne by the State. We disagree that the Constitution requires the prosecution to bear this burden. The Supreme Court has held that a state may require that the defendant prove affirmative defenses. E.g., Patterson, 432 U.S. at 206, 97 S.Ct. 2319 (requiring the defendant to prove extreme emotional disturbance); Martin v. Ohio, 480 U.S. 228, 236, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987) (requiring the defendant to prove self defense). Proof of mental retardation is like proof of an affirmative defense in that it serves to relieve or mitigate a defendant's criminal responsibility, and as with affirmative defenses, the evidence of retardation will lie largely within the possession and control of the defendant.\\n\\u00b627 Because the defendant has superior access to the evidence to prove his mental condition, it is not inappropriate to place the burden on him to do so. See Medina, 505 U.S. at 455, 112 S.Ct. 2572 (O'Connor, J., concurring); cf. Patterson, 432 U.S. at 206, 97 S.Ct. 2319 (to same effect). A critical component of proof of mental retardation is onset before age eighteen. The defendant has better information regarding his condition and superior access to friends and family who knew him before he turned eighteen. Moreover, a defendant has significant motivation to attempt to score poorly on an IQ test, a low score on which triggers a claim of mental retardation. See A.R.S. \\u00a7 13-703.02(B). Such evidence lies within the defendant's control and may prove difficult for the state to rebut.\\n\\u00b628 New Jersey is the only state, as of this writing, to place the burden of disproving mental retardation on the state. State v. Jimenez, 380 N.J.Super. 1, 880 A.2d 468, 484 (2005). It did so because state law developed under the Ring/Apprendi line of cases treats certain statutory \\\"capital triggers\\\" like aggravating factors that the state must prove to a jury beyond a reasonable doubt. Id. at 482-84 (discussing the implications of Ring II, 536 U.S. at 584, 122 S.Ct. 2428, and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). The court in Jimenez held that mental retardation was essentially such a \\\"capital trigger,\\\" which under New Jersey law the state must prove beyond a reasonable doubt. 880 A.2d at 484. Because, however, the absence of mental retardation is neither an aggravating factor nor an element of the capital offense under Arizona law, the rationale supporting the result in Jimenez does not apply here.\\n\\u00b629 We find no constitutional bar to imposing the burden of proving mental retardation on the defendant.\\n2. Imposition of the \\\"clear and convincing evidence\\\" standard\\n\\u00b6 30 Citing Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), Grell asserts the unconstitutionality of requiring him to prove mental retardation by clear and convincing evidence. In Cooper, the Court, having already declared that the defendant must bear the burden of proving competency to stand trial, id. at 355, 116 S.Ct. 1373, held that the defendant may not be forced to prove his competency by clear and convincing evidence. Id. at 369, 116 S.Ct. 1373. The Court evaluated the right not to be tried while incompetent and weighed the impact of its loss on the defendant to determine the appropriate standard of proof. Id. at 354, 364, 116 S.Ct. 1373. The Court observed that the right not to be tried if incompetent is a fundamental \\\"principle of justice [so] rooted in the traditions and conscience of our people\\\" that its violation \\\"threatens . the basic fairness of the trial itself.\\\" Id. at 364,116 S.Ct. 1373.\\n\\u00b6 31 Furthermore, the Court reasoned, the heightened standard of proof affected only those defendants who could prove they were incompetent, but could not do so by clear and convincing evidence. Id. at 366-67, 116 S.Ct. 1373. The higher standard affected those defendants' only opportunity to contest competency, creating a grave risk of violating their right not to be tried while incompetent. Id. The Court concluded that the defendants' interest outweighed the government's lesser interest in trying a probably incompetent defendant. Id. The Court also noted that forty-six other state jurisdictions used a lower standard of proof, showing consensus that Oklahoma's higher standard was unnecessary to serve the state's needs and inappropriate in light of the importance of the right. Id. at 361-62, 116 S.Ct. 1373. The Court therefore held that due process limits the burden on the defendant to prove competency to stand trial by a standard no higher than preponderance of the evidence. Id. at 368-69,116 S.Ct. 1373.\\n\\u00b6 32 As was the Court in Cooper, we have been asked to assess the statutory imposition of a clear and convincing evidence standard in a situation in which a preponderance standard would be permissible. Although the right not to be executed if mentally retarded is of recent vintage, it \\u2014 like the right not to stand trial if incompetent \\u2014 is a constitutional right based on modern consensus and historical views regarding the propriety of executing those who may be \\\"less morally culpable\\\" because of their reduced mental capacity. See Atkins, 536 U.S. at 320-21, 122 S.Ct. 2242. We also note that, following Atkins, all but one jurisdiction that has chosen a burden has chosen preponderance of the evidence. We might have done so as well, were there no Arizona statute already in place. The question before us, however, is whether the standard chosen by the legislature to protect admittedly important state interests can withstand constitutional scrutiny.\\n\\u00b6 33 The statutory scheme enacted by the Arizona legislature does not merely prohibit execution of the mentally retarded. It provides a detailed, bifurcated process that requires a pretrial hearing at which a defendant may attempt to show, by clear and convincing evidence, that he has mental retardation; if he fails to make that showing, the defendant may still present mental retardation evidence to the jury in mitigation of his sentence. A.R.S. \\u00a7 13-703.02. The statutory process gives the defendant with an IQ of 75 or below the opportunity to be examined by at least two psychological experts to determine his IQ. A.R.S. \\u00a7 13-703.02(B), (D). Those with at least one full-scale IQ test result of 70 or below proceed for further evaluation and an evidentiary hearing. A.R.S. \\u00a7 13-703.02(F), (G). Although the defendant bears the ultimate burden to prove mental retardation, the statute creates a rebuttable presumption of mental retardation if the defendant's IQ is 65 or below. A.R.S. \\u00a7 13-703.02(G).\\n\\u00b6 34 The Arizona statute sets up a process similar to that used in Colorado and Indiana, and courts in both those states have evaluated the constitutionality of requiring a defendant to prove mental retardation by clear and convincing evidence. Compare People v. Vasquez, 84 P.3d 1019 (Colo.2004) (approving use of clear and convincing standard in a pretrial hearing), with Pruitt v. State, 834 N.E.2d 90 (Ind.2005) (finding a clear and convincing standard unconstitutional). Grell and our dissenting colleague rely heavily on analysis from Cooper that also formed the basis of the Pruitt opinion. They argue that the definitive inquiry is the assessment of the relative risks faced by the parties: the defendant's risk of death compared to the state's minimal interest in executing a defendant who will otherwise go to prison for life.\\n\\u00b6 35 With respect to statutes like those in Arizona, Indiana, and Colorado, however, Grell overstates his case. As the Colorado Supreme Court stressed in Vasquez, the defendant's risk at a pretrial hearing is not death, but a capital trial. 84 P.3d at 1023. By creating a pretrial process, the legislature provided a way for mentally retarded defendants to avoid the burden of a capital trial and the risk of imposition of the capital penalty. All defendants who do not prove mental retardation at the pretrial hearing retain the ability to present mental retardation evidence to the jury under a preponderance standard in the penalty phase of the trial. That opportunity reduces the ultimate risk they face from an adverse determination in the pretrial mental retardation hearing.\\n\\u00b6 36 The court in Pruitt acknowledged but rejected the argument that the defendant's ability to argue mental retardation evidence in mitigation to the jury under a preponderance of the evidence standard adequately safeguards the defendant's rights. It reasoned that \\\"[mjentally retarded defendants in the aggregate face a special risk of wrongful execution.\\\" 834 N.E.2d at 103 (quoting Atkins, 536 U.S. at 321, 122 S.Ct. 2242). Although the acknowledged risk that the Pruitt court identifies may justify barring the execution of the mentally retarded, it does not suggest the need for any particular procedure to ascertain mental retardation. Under Arizona's statutory procedure, these defendants about whom there is consensus against execution will be screened out at the pretrial stage. Given that fact, we cannot say that those unable to establish retardation by clear and convincing evidence face such a severe risk at sentencing that they may not constitutionally be put through the capital trial process.\\n\\u00b6 37 Although the Court in Atkins clearly announced that states may not execute the mentally retarded, it recognized that people may disagree over which individuals in fact have mental retardation. 536 U.S. at 317, 122 S.Ct. 2242. Before Atkins, states had already begun to develop their own procedures, and had drawn in different places the line for establishing the mental retardation that would bar execution. Knowing this, the Court explicitly left the procedure for determining mental retardation to the states. Id. State procedures must ensure that those about whom there is national consensus are protected from execution, but left states otherwise free to craft their laws for determining which defendants meet the consensus standard. By providing differing procedures based on the defendant's IQ, Arizona law reflects this concept. Those with IQ scores of 65 or below face a comparatively lower bar, while those whose IQ scores suggest greater intelligence must go to greater lengths to prove their mental retardation. The legislature placed a heavier burden on those who do not fall within the group about whom there is national consensus regarding their right not to be executed. The procedure occurs early in the capital process and removes defendants found to have mental retardation from exposure to a capital trial and hence to a sentence of death. See A.R.S. \\u00a7 13-703.02(0), (F), (G). The application of Arizona's tiered procedure does not deprive Grell of a right rooted in fundamental justice.\\n\\u00b6 38 Finally, in response to the reliance of the defendant and our dissenting colleague on the analysis in Cooper, 517 U.S. at 348, 116 S.Ct. 1373, we note the significant differences between the right not to be tried while incompetent and the right not to be executed if mentally retarded. First, a defendant found incompetent to stand trial is protected from having to submit to trial on any charges unless he is restored to competency. See id. A defendant deemed to have mental retardation, however, is not shielded from trial. See Atkins, 536 U.S. at 318,122 S.Ct. 2242. Despite the risks that a mentally retarded defendant might not present well to a jury, such a defendant can be tried, found guilty, and sentenced to any statutory criminal penalty other than death. This legal distinction suggests that mental retardation differs constitutionally from incompetence to stand trial.\\n\\u00b639 The second distinction relates to the risk of malingering. A defendant who successfully feigns incompetence to stand trial will not have to submit to trial at that time. Generally, however, such a defendant is sent to a mental health facility for treatment and further examination of his competency. See Ariz. R.Crim. P. 11.5(b)(2)(i). Most often, the defendant is either restored to competency or discovered to be malingering. In the event of either occurrence, the defendant is subject to trial and punishment, including the death penalty, if appropriate. On the other hand, once a court determines that a defendant has mental retardation, that defendant may never suffer the punishment of execution, even if he is later discovered to have been malingering. These concerns support the heightened standard that the legislature has imposed to protect the interests of Arizona citizens.\\n\\u00b640 A better comparison lies between claims of mental retardation as a bar to execution and claims of mental incompetence as a bar to execution. The defendant asserting the latter claim is also subject to a clear and convincing evidence burden of proof. See A.R.S. \\u00a7 13-4022(F) (clear and convincing burden of proof); Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (holding that the Eighth Amendment prohibits states from \\\"inflicting the penalty of death upon a prisoner who is insane\\\"). We are aware of no case finding it violative of the Constitution to require a defendant to prove incompetence to be executed by clear and convincing evidence.\\n\\u00b641 In sum, we conclude that requiring the defendant to prove mental retardation by clear and convincing evidence in the initial retardation hearing does not violate constitutional standards.\\n3. Jury determination of mental retardation\\n\\u00b642 Grell argues that, under Ring, the jury must find beyond a reasonable doubt that the defendant does not have mental retardation before it may impose a sentence of death. Furthermore, he argues, the process should be bifurcated: a judge should make a preliminary finding on mental retardation, and if the judge finds the defendant death-eligible, the state still must prove a defendant's lack of mental retardation beyond a reasonable doubt to the jury.\\n\\u00b6 43 Ring and Apprendi require that a jury find all functional elements of a crime and all non-admitted facts except prior convictions that increase the sentence above the presumptive sentence. See Apprendi, 530 U.S. at 489,120 S.Ct. 2348. Although mental retardation does indeed involve fact-finding, it is not the functional equivalent of an element of the crime. It has nothing to do with the acts that make up the crime itself or the defendant's mental state while committing the crime, facts the state traditionally must prove. As a result, Ring does not require that a jury find the absence of mental retardation. See Arbelaez v. State, 898 So.2d 25, 43 (Fla.2005); Ex parte Briseno, 135 S.W.3d 1, 10 (Tex.Crim.App.2004); Winston v. Commonwealth, 268 Va. 564, 604 S.E.2d 21, 50 (2004) .\\n\\u00b644 Nor is the absence of retardation a fact that increases the available penalty. See Apprendi, 530 U.S. at 490 n. 16, 120 S.Ct. 2348; see also United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) . The finding that a defendant does not have mental retardation \\\"neither expos[es] the defendant to a deprivation of liberty greater than that authorized by the verdict according to statute, nor . impostes] upon the defendant a greater stigma than that accompanying the jury verdict alone.\\\" Bowling v. Commonwealth, 163 S.W.3d 361, 379 (Ky.2005); see also Head v. Hill, 277 Ga. 255, 587 S.E.2d 613, 619-20 (2003); Russell v. State, 849 So.2d 95, 147-48 (Miss.2003); State v. Flores, 135 N.M. 759, 93 P.3d 1264, 1267 (2004); State v. Laney, 367 S.C. 639, 627 S.E.2d 726, 731 (2006); Howell v. State, 151 S.W.3d 450, 467 (Tenn.2004). Thus nothing in the Apprendi line of cases requires that a jury find the absence of mental retardation beyond a reasonable doubt.\\n\\u00b6 45 The Supreme Court itself has signaled that a jury need not decide the issue of mental retardation. When the Ninth Circuit suspended federal habeas proceedings in Schriro v. Smith and ordered a state jury trial on the issue of mental retardation, the Supreme Court summarily reversed the decision, implicitly rejecting the conclusion that Atkins requires a jury trial. \\u2014 U.S.-, -, 126 S.Ct. 7, 9, 163 L.Ed.2d 6 (2005) (per curiam). The defendant in Schriro had argued that he suffered from mental retardation and could not be executed. Id. at 8. Observing that Arizona and many states had adopted procedures for adjudicating the mental retardation question, the Court said, \\\"While those measures might, in their application, be subject to constitutional challenge, Arizona had not even had a chance to apply its chosen procedures when the Ninth Circuit preemptively imposed its jury trial condition.\\\" Id. at 9. Although we hesitate to read too much into the summary reversal, we draw from it a suggestion that a jury trial is not required.\\n\\u00b6 46 Grell also compares the mental retardation finding to Enmund/Tison findings, arguing that both are findings of fact that should be made by the jury beyond a reasonable doubt. See Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). The analysis fails for two reasons. First, the Supreme Court has held that Enmund/Tison findings, that a defendant actually killed or intended to kill, need not be made by a jury. See Cabana v. Bullock, 474 U.S. 376, 385-86, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), abrogated on other grounds by Pope v. Illinois, 481 U.S. 497, 503 n. 7, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987). The Court's reasoning \\u2014 that Enmund/Tison findings serve to disqualify an otherwise seemingly death-eligible defendant from death \\u2014 suggests that that part of the opinion will survive Apprendi, because the findings mitigate rather than aggravate a potential sentence. Id.; see also Ring III, 204 Ariz. at 564, \\u00b6 100, 65 P.3d at 945 (concluding that Cabana survives Apprendi because it involves an Eighth Amendment proportionality analysis, traditionally done by a trial judge). Similarly, mental retardation serves to exclude a defendant from eligibility for the death penalty; its absence does not render an otherwise ineligible defendant eligible for the death penalty.\\n\\u00b6 47 Second, Enmund/Tison findings lend themselves more logically to proof beyond a reasonable doubt than does proof of mental retardation. Enmund/Tison findings are based on evidence of participation in the crime and intent. Mental retardation, on the other hand, requires evaluation of the defendant's past and present mental functioning, using documentation and evidence largely within the control of the defendant. Placing the burden on the prosecution to prove lack of retardation beyond a reasonable doubt would require it to prove a negative against a party with a motive to misrepresent his mental health and his past. The burden on the prosecution would be almost impossibly high.\\n\\u00b648 Grell argues not only that the jury should hear the mental retardation evidence in mitigation, but also that it should decide whether mental retardation should serve as a bar to execution following an initial determination by the trial judge on that issue. Because Atkins left the procedure for determining mental retardation to the states, such a procedure would not be prohibited; but neither is it required. Indeed, the statute already requires that both the judge and jury evaluate mental retardation before a sentence of death may be imposed. The judge hears mental retardation evidence as a legal bar to execution and the jury hears it for mitigation purposes.\\n\\u00b649 Grell acknowledges that having the jury serve as the only arbiter of mental retardation is not wise. The difficulties a mentally retarded person may have in testifying, communicating, and expressing remorse may negatively influence the jury. That factor formed an explicit basis of the Supreme Court's prohibition on execution of the mentally retarded. See Atkins, 536 U.S. at 320-21, 122 S.Ct. 2242. But because the statute requires an initial judicial determination, Grell's concern is ameliorated. The trial court did not err in determining that a jury need not determine mental retardation as a bar to execution.\\nB. Preclusion of Testimony from Defense Expert Dr. Keyes\\n\\u00b6 50 Defense counsel protests the exclusion of his third mental health expert as an unnecessarily harsh penalty for Grell's refusal to cooperate with the State's third mental health expert. \\\"Whether to preclude . a witness's testimony lies within the discretion of the trial court.\\\" Moody, 208 Ariz. at 457, \\u00b6 135, 94 P.3d at 1152. We will not reverse a sanction unless the trial court has abused its discretion. Id.\\n\\u00b651 The State moved to preclude Dr. Keyes from testifying about Grell's adaptive abilities after Grell refused to cooperate with the State's new mental health expert. Relying on State v. Druke, 143 Ariz. 314, 693 P.2d 969 (App.1984), and State v. Schackart, 175 Ariz. 494, 858 P.2d 639 (1993), the trial court granted the State's unopposed motion. Concluding that it would be unfair to the State to allow the new defense expert when the State's new expert could not examine Grell, the court also denied the defense Motion to Reconsider, filed after Dr. Keyes filed a report concluding that Grell has mental retardation.\\n\\u00b6 52 Defense counsel argues that Drake, Schackart, and cases relating to insanity experts should not control Grell's case because mental retardation differs from insanity or impulsive behavior. Mental retardation, by definition, must exist before age eighteen. Grell argues that his current mental condition is therefore of only limited relevance. The State's expert, Dr. Scialli, stated as much in his testimony. Grell also emphasizes the difference between requiring the State to face a defense expert with no expert of its own, and having it face three defense experts with two experts of its own. The latter situation, he argues, does not prejudice the State's case.\\n\\u00b6 53 While it may be true that an expert could have evaluated Grell's adaptive skills without interviewing him, the controlling statute defines mental retardation as including current impairment in adaptive ability. See A.R.S. \\u00a7 13-703.02(K). Assessments based on recent interviews of the defendant are thus persuasive. Accordingly, the trial judge has discretion to preclude mental health experts as a sanction for the defendant's refusal to cooperate with interviews and testing. Phillips v. Araneta, 208 Ariz. 280, 285, \\u00b6 15, 93 P.3d 480, 485 (2004). Although such a sanction weighs especially heavily in a capital case, faced with the State's reduced ability to rebut Dr. Keyes' assessment of Grell's current functioning, the judge did not abuse her discretion by precluding Dr. Keyes' testimony.\\nC. Denial of Motion to Strike Testimony of Dr. Scialli\\n\\u00b6 54 The defense argues that Dr. Scialli is not a qualified expert under A.R.S. \\u00a7 13-703.02, the pretrial screening statute the trial court was attempting to follow, and his testimony, should therefore have been precluded.\\n\\u00b6 55 Whether a statute applies in a particular situation is a question of law, which we review de novo. Schoneberger v. Oelze, 208 Ariz. 591, 594, \\u00b6 12, 96 P.3d 1078, 1081 (App.2004). We review the decision to admit or exclude evidence for abuse of discretion. State v. Aguilar, 209 Ariz. 40, 49, \\u00b6 29, 97 P.3d 865,874 (2004).\\n\\u00b6 56 Section 13-703.02(K)(3) defines a \\\"psychological expert\\\" as \\\"a psychologist licensed pursuant to title 32, chapter 19.1 with at least two years' experience in the testing, evaluation and diagnosis of mental retardation.\\\" Dr. Scialli is a psychiatrist, not a psychologist. The record shows that he has had training in mental retardation for a child psychiatry fellowship, has been a consultant with several government agencies, has \\\"evaluated and consulted on\\\" children with mental retardation for Child Protective Services, and has been the acting medical director for the Division of Developmental Disabilities, the agency responsible for the care of mentally retarded children and adults.\\n\\u00b657 This court in Grell I acknowledged that A.R.S. \\u00a7 13-703.02 should be applied to the hearing on remand only \\\"insofar as is practical.\\\" The trial court reasonably concluded that it was not practicable to apply the statute on this issue. The State hired Dr. Scialli before it could possibly have known the yet-unpassed statute's requirements for qualifications of experts. In addition, Dr. Scialli appears to be qualified to diagnose and discuss retardation issues. Indeed, the defense relies on his testimony to support its own points about the diagnosis of retardation. And precluding Dr. Scialli's testimony would have left the State without an expert on mental retardation. His qualifications in this instance bear on the weight of his testimony, not its admissibility. The court did not abuse its discretion by allowing Dr. Scialli to testify.\\nD. Error in Finding that Grell Did Not Prove Mental Retardation\\n\\u00b6 58 The defense asserts that the trial court erred in concluding that Grell does not have mental retardation and requests that we review that ruling. The decision was based largely on expert testimony; the trial court determined that the State's expert was more credible. \\\"The trial judge has broad discretion in determining the weight and credibility given to mental health evidence.\\\" State v. Doerr, 193 Ariz. 56, 69, \\u00b6 64, 969 P.2d 1168, 1181 (1998). 'We defer to the trial court's factual findings that are supported by the record and not clearly erroneous.\\\" State v. Rosengren, 199 Ariz. 112, 116, \\u00b6 9, 14 P.3d 303, 307 (App.2000).\\n\\u00b6 59 Because the parties stipulated that Grell had a low IQ before age eighteen, the only issue in the hearing on remand was his adaptive functioning. Under Arizona law, the adaptive functioning component of a mental retardation diagnosis requires \\\"significant impairment\\\" in \\\"the effectiveness or degree to which the defendant meets the standards of personal independence and social responsibility expected of the defendant's age and cultural group.\\\" A.R.S. \\u00a7 13-703.02(K)(1), (K)(2).\\n\\u00b6 60 Defense counsel relied primarily on school and juvenile detention records to highlight examples of poor academic and social behavior. He argued that school and detention workers did not diagnose students based on the DSM-IV, and thus the fact that no one had diagnosed Grell as having mental retardation did not establish the absence of that condition. He urged the court to find deficits in the areas listed in the DSM-IV.\\n\\u00b6 61 The State countered with three main themes: no doctor before defense expert Dr. Globus had ever diagnosed Grell as having mental retardation; behaving badly does not necessarily indicate adaptive deficits; and Grell can behave himself when he wants to do so. The State relied on the Vineland Scale as the only test administered to Grell as a youth that would reveal retardation. The score on that scale was low-average, assessing his intelligence as being only a year younger than his chronological age at the time. After moving to Arizona, five psychiatric reports all showed Grell to have a personality or conduct disorder, but none indicated mental retardation. Several school documents literally say that Grell demonstrated \\\"good adaptive skills.\\\" The State also highlighted a ruse Grell concocted about his life following an arrest for robbery in 1996. Although he was twenty at the time, Grell claimed to be a juvenile named Michael Prentice and described a background different from his own in a number of respects. Grell maintained the ruse for more than six months through repeated contacts with the justice system.\\n\\u00b6 62 The defense claims to have clearly shown that Grell has deficits in two of the eleven areas listed in the DSM-IV and therefore has mental retardation. The DSM-IV definition of mental retardation, however, while similar in overall meaning, is not the same as the statutory definition. See A.R.S. \\u00a7 13-703.02(K). The statute requires an overall assessment of the defendant's ability to meet society's expectations of him. It does not require a finding of mental retardation based solely on proof of specific deficits or deficits in only two areas.\\n\\u00b6 63 Reasonable minds may differ as to how to interpret the evidence presented. The evidence does, however, support a finding that Grell was able to function at a level higher than that of \\\"significant impairment.\\\" The trial judge's conclusion was reasonably supported by evidence. The trial court did not clearly err in finding that Grell failed to prove mental retardation by clear and convincing evidence.\\nE. Entitlement to Jury Sentencing\\n\\u00b6 64 Grell argues that he is entitled to jury sentencing by the terms of his trial-by-submission agreement. He asserts that he \\\"agreed to a trial by submission in exchange for preserving his claim that the United States Constitution entitled him to a jury determination of aggravation or mitigation at the sentencing phase.\\\" The cover statement of the stipulation states: \\\"This stipulation shall in no way constitute a waiver of any rights the defendant may have to have a jury empanelled to determine the existence or absence of any aggravating and or mitigating circumstances.\\\"\\n\\u00b6 65 The State acknowledges that Grell attempted to preserve his right to a jury trial for sentencing. It argues, however, that Grell preserved only any \\\"right [he] may have\\\" to a jury sentencing, not an absolute right to such a proceeding. Under Ring, the State thus maintains, Grell has a right to a jury sentencing only if the judicial sentencing was not harmless error.\\n\\u00b6 66 While that may be one way to interpret the jury sentencing provision, Grell clearly believed that the stipulation would entitle him to a jury trial on aggravating facts if the Ring challenge was successful. When the parties signed the agreement in September 2000, Apprendi had just been decided. Its reasoning suggested that Arizona's judge-sentencing system was unconstitutional. Grell's stipulation was thus not a meaningless reservation of a pipe-dream right. Moreover, because Grell admitted the act of killing his daughter, the sentencing hearing held increased significance as his only chance to avoid a sentence of death. He waived his right to a jury trial on the guilt-phase issues at least in part based on assurances that he would retain his right to be sentenced by a jury.\\n\\u00b6 67 We find that the agreement entitles Grell to a jury sentencing. We therefore vacate the sentence of death and remand for a sentencing proceeding in accordance with A.R.S. \\u00a7 13-703 and 13-703.01 (Supp.2002).\\nF. Other Issues\\n\\u00b6 68 Grell raised several other issues, all of which are rendered moot by the remand for resentencing. We therefore decline to address them.\\nIII. Conclusion\\n\\u00b6 69 We affirm the trial court's determination that Grell does not have mental retardation. Because we conclude that the State is bound by its agreement to afford a jury trial on sentencing, we vacate Grell's death sentence and remand the case for resentencing in accordance with A.R.S. \\u00a7 13-703 and 13-703.01.\\nCONCURRING: RUTH V. McGREGOR, Chief Justice, MICHAEL D. RYAN, Justice and SHELDON H. WEISBERG, Judge.\\n. A more complete account of the crime appears in Grell I, 205 Ariz. at 58-59, \\u00b6 3-15, 66 P.3d at 1235-36.\\n. The \\\"heinous, cruel, or depraved\\\" aggravator is written in the disjunctive and the state need prove only one of the three conditions to trigger application of the aggravating circumstance. State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983). Heinousness and depravity are, however, frequently analyzed together as both involve the defendant's mental state. Id.\\n. The trial court's Special Verdict does not explain the import of this factor, but we infer from the subsequent citation to Gretzler that the judge meant that the defendant relished his crime. See Gretzler, 135 Ariz. at 52, 659 P.2d at 11.\\n. The court did not state its criteria for determining mental retardation, but the discussion of IQ scores and adaptive skills covers two of the three factors cited by the Supreme Court in Atkins and this court in Grell I as useful in determining the existence of mental retardation: low IQ, poor adaptive skills, and onset before age eighteen. The criteria are based on the Diagnostic Criteria for Mental Retardation, Diagnostic & Statistical Manual of Mental Disorders (4th ed. 1994) (\\\"DSM-IV\\\") and are substantially consistent with the statutory definition in A.R.S. \\u00a7 13-703.02(K)(2) (2002), which was enacted after Grell's sentencing.\\n. Section 13-703.02, enacted before Atkins issued but after Grell's sentencing, defines the pretrial process for evaluating mental retardation in capital cases. First, the trial judge appoints a pre-screening expert to administer an IQ test to the defendant. A.R.S. \\u00a7 13-703.02(B). If the resulting score is 75 or below, the judge picks one expert nominated by each party, or one jointly nominated expert, to test the defendant again. A.R.S. \\u00a7 13-703.02(D). If any test result is 70 or below, the court conducts a hearing at which the defendant must prove by clear and convincing evidence that he has \\\"significantly subaverage general intellectual functioning [an IQ of 70 or lower], existing concurrently with significant impairment in adaptive behavior, where the onset of the foregoing conditions occurred before the defendant reached the age of eighteen.\\\" A.R.S. \\u00a7 13-703.02(G), (K). If the court finds that the defendant's IQ is 65 or below, a rebuttable presumption of mental retardation arises. A.R.S. \\u00a7 13-703.02(G). If the court does not find mental retardation, the defense may still argue the issue to the jury as a mitigating factor. A.R.S. \\u00a7 13-703.02(H).\\n. The statute currently provides for a bifurcated process, see supra note 5, but the jury hears the mental retardation evidence only as a mitigating factor. See A.R.S. \\u00a7 13-703.02(H).\\n. The following statutes, passed in 2003 after Atkins, impose a preponderance standard: Cal.Penal Code \\u00a7 1369 (West, Westlaw through 2006 Sess.); Idaho Code Ann. \\u00a7 19-2515A (Westlaw through 2005 Sess.); 725 111. Comp. Stat. Ann. 5/114-15 (West, Westlaw through 2005 Sess.); Nev.Rev.Stat. Ann. \\u00a7 174.098 (West, Westlaw through 2005 Sess.); Utah Code Ann. \\u00a7 77-15a-104 (West, Westlaw through 2005 2d Sess.); Va.Code Ann. \\u00a7 19.2-264.3:1.1 (West, Westlaw through 2005 Sess.). The following cases, from jurisdictions in which no statute sets a burden, set preponderance as the appropriate standard: State v. Williams, 831 So.2d 835, 860 (La.2002); Russell v. State, 849 So.2d 95, 148 (Miss.2003); State v. Lott, 97 Ohio St.3d 303, 779 N.E.2d 1011, 1015 (2002); Commonwealth v. Mitchell, 576 Pa. 258, 839 A.2d 202, 211 n. 8 (2003); Franklin v. Maynard, 356 S.C. 276, 588 S.E.2d 604, 606 (2003); Ex parte Briseno, 135 S.W.3d 1, 12 (Tex.Crim.App.2004).\\nDelaware, which passed its statute within a month of Atkins, is the lone exception. Del.Code Ann. Tit. 11, \\u00a7 4209 (West, Westlaw through 2005 Sess.) (imposing a clear and convincing burden). Of the eighteen states that had statutes in place before Atkins, thirteen states use the preponderance standard. See Atkins, 536 U.S. at 314-15 & nn. 12-15, 122 S.Ct. 2242.\\n. By selecting an IQ of 65 as the number that gives rise to the presumption of retardation\\u2014 which presumption assumes the existence of \\\"significantly subaverage general intellectual functioning,\\\" concurrent \\\"significant impairment in adaptive behavior,\\\" and onset before age eighteen, A.R.S. \\u00a7 13-703.02(K)(2) \\u2014 the legislature has given added protection to those defendants whom the DSM-IV would define as having \\\"mild\\\" mental retardation. DSM-IV 42-43.\\n. A Georgia statute requires the defendant to establish mental retardation by proof beyond a reasonable doubt, a burden that the Georgia Supreme Court has twice upheld. See Head v. Hill, 277 Ga. 255, 587 S.E.2d 613, 621 (2003) (post-Atkins case analyzing Georgia Code Annotated \\u00a7 17-7-131 (West, Westlaw through 2005 Special Sess.)); Mosher v. State, 268 Ga. 555, 491 S.E.2d 348 (1997) (pre-Atkins case). Because the procedure under the Georgia statute differs substantially from that under the Arizona statute, however, we do not rely on the analysis in Head and Mosher. In those cases, the Georgia Supreme Court found the twin requirements that the defendant need only demonstrate incompetence to stand trial by a preponderance of the evidence and may prove mental retardation to a jury by proof beyond a reasonable doubt sufficient to safeguard mentally retarded persons against the special risks of trial to which they are subject. Head, 587 S.E.2d at 622. Arizona's safeguards are, if anything, more protective of the rights of the defendant than are Georgia's.\\n. Grell's risk at this post-trial proceeding was of course different, but the outcome is functionally the same because he retains the right to present the evidence of mental retardation to the jury in mitigation. See infra \\u00b6 64-67.\\n. Section 32-2071 requires a \\\"doctoral degree\\\" from an accredited program in any of several areas of psychology. The program must include hundreds of hours of supervised training. A.R.S. \\u00a7 32-2071(D). Among the required subjects of study are \\\"interviewing and the administration^ scoring and interpretation of psychological test batteries for the diagnosis of cognitive abilities and personality functioning.\\\" A.R.S. \\u00a7 32-2071(A)(4)(g). Psychiatrists have medical training and receive an M.D. rather than a Ph.D.\\n. The DSM-IV instructs that poor adaptive skills exist when there are deficits in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.\"}"

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+"{\"id\": \"3425609\", \"name\": \"Hal OWENS, a married man dealing with his sole and separate property, Plaintiff/Counterdefendant/Appellee, v. M.E. SCHEPP LIMITED PARTNERSHIP, an Arizona limited partnership, Defendant/Counterclaimant/Appellant\", \"name_abbreviation\": \"Owens v. M.E. Schepp Ltd. Partnership\", \"decision_date\": \"2008-05-08\", \"docket_number\": \"No. CV-07-0349-PR\", \"first_page\": \"222\", \"last_page\": \"231\", \"citations\": \"218 Ariz. 222\", \"volume\": \"218\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:30:15.726024+00:00\", \"provenance\": \"CAP\", \"judges\": \"CONCURRING: RUTH V. McGREGOR, Chief Justice, REBECCA WHITE BERCH, Vice Chief Justice, MICHAEL D. RYAN and W. SCOTT BALES, Justices.\", \"parties\": \"Hal OWENS, a married man dealing with his sole and separate property, Plaintiff/Counterdefendant/Appellee, v. M.E. SCHEPP LIMITED PARTNERSHIP, an Arizona limited partnership, Defendant/Counterclaimant/Appellant.\", \"head_matter\": \"182 P.3d 664\\nHal OWENS, a married man dealing with his sole and separate property, Plaintiff/Counterdefendant/Appellee, v. M.E. SCHEPP LIMITED PARTNERSHIP, an Arizona limited partnership, Defendant/Counterclaimant/Appellant.\\nNo. CV-07-0349-PR.\\nSupreme Court of Arizona, En Banc.\\nMay 8, 2008.\\nPerkins Coie Brown & Bain, P.A., by Jordan Green, Steven J. Monde, Phoenix, Attorneys for Hal Owens.\\nMcCabe O\\u2019Donnell, P.A., by Joseph I. McCabe, Clifford J. Roth, Phoenix, Attorneys for M.E. Schepp Limited Partnership.\", \"word_count\": \"4762\", \"char_count\": \"28926\", \"text\": \"OPINION\\nHURWITZ, Justice.\\n\\u00b6 1 This case involves a dispute about the partition of land held by family members as tenants in common. The issue for decision is whether an alleged oral partition agreement was removed from the statute of frauds by part performance.\\nI.\\n\\u00b6 2 Hal Owens and the M.E. Schepp Limited Partnership (\\\"the Partnership\\\") own land at Missouri Avenue and 22nd Street in Phoenix (\\\"the Parcel\\\") as tenants in common. The Parcel consists of Lots 17 and 18, which are vacant, and Lot 20, which is improved. Owens owns an undivided two-thirds interest; the Partnership has the remaining third. Thomas Schepp, Owens's cousin, has lived in a house on Lot 20 since 1990; a guest house on that lot is rented to third parties. Thomas and his brother Rex Schepp manage the Partnership.\\n\\u00b63 Owens filed this suit in May 2005, seeking to partition the Parcel pursuant to Arizona Revised Statutes (\\\"A.R.S.\\\") \\u00a7 12-1211 to -1225 (2003). The Partnership counterclaimed, contending that statutory partition was inappropriate because the parties had entered into an oral voluntary partition agreement; the counterclaim sought specific performance of that agreement.\\n\\u00b64 Owens moved for partial summary judgment, asserting that the alleged voluntary partition agreement did not exist, but that even if it did, it was unenforceable under the statute of fi'auds, A.R.S. \\u00a7 44-101(6) (2003). The superior court granted the motion, ruling that there was no partition agreement. The court ordered the appointment of three commissioners to partition the Parcel. See A.R.S. \\u00a7 12-1215(B).\\n\\u00b6 5 A divided court of appeals reversed. Owens v. M.E. Schepp Ltd. P'ship, 216 Ariz. 273, 165 P.3d 674 (App.2007). The court of appeals first found a genuine issue of material fact as to whether the parties had entered into an oral voluntary partition agreement. Id. at 279 \\u00b6 27, 165 P.3d at 680. Turning to Owens's statute of fi'auds arguments, the court held that a voluntary partition agreement falls within the statute of frauds. Id. at 280- 81 \\u00b6 29-33, 165 P.3d at 681-82. The court then concluded that no writing satisfied the statute. Id. at 281 \\u00b6 34-36, 165 P.3d at 682. It held, however, that the summary judgment was erroneous because the Partnership had produced sufficient evidence of part performance to take the contract out of the statute of frauds and that this issue should have been submitted to a jury. Id. at 281- 84 \\u00b6 37-42, 165 P.3d at 682-85. The dissenting judge found the alleged acts of part performance insufficient as a matter of law to avoid the statute of frauds. Id. at 284-86 \\u00b6 44-50, 165 P.3d at 685-87 (Timmer, J., dissenting).\\n\\u00b6 6 We granted review to consider the question that divided the court of appeals: Do the alleged acts of part performance remove the oral partition agreement from the statute of frauds? We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. \\u00a7 12-120.24 (2003).\\nII.\\n\\u00b6 7 Our consideration of the issue before us centers on the alleged acts of part performance. We review the facts in the light most favorable to the Partnership, the party against whom summary judgment was entered. See Myers v. City of Tempe, 212 Ariz. 128, 130 \\u00b6 7, 128 P.3d 751, 753 (2006).\\nA.\\n\\u00b6 8 On June 18, 2004, the City of Phoenix issued a citation requiring cleanup of vegeta tion on the Parcel. The Schepp brothers and Owens met in early July to discuss the citation. At that meeting, Owens proposed removing trees along Missouri Avenue, the northern boundary of Lots 17 and 18; the Schepps objected, fearing complaints from neighbors. The parties eventually agreed to partition the Parcel, with the Partnership taking Lot 20 and Owens taking Lots 17 and 18. Because of its improvements, Lot 20 is arguably the most valuable of the three, so Owens claimed that the suggested partition should involve an equalization payment to him from the Partnership. No agreement was reached concerning a payment, but the Schepps understood that Owens might reiterate such a demand in the future.\\n\\u00b6 9 Later in July, a contractor hired by Owens began the tree removal. Thomas Schepp confronted Owens and objected. Owens responded that Lots 17 and 18 belonged to him and that the decision to remove the trees was therefore his alone. After Owens reaffirmed that a partition agreement had been reached at the earlier meeting, Thomas withdrew his objection.\\n\\u00b6 10 The Partnership later paid $16,600, one-third of the cost of the tree removal, directly to the landscaping contractor. The Partnership claims the payment was an installment on any equalization due Owens under the oral partition agreement.\\nB.\\n\\u00b6 11 The Partnership contended below that the oral partition agreement was removed from the statute of frauds because of two acts of part performance: (1) Thomas Schepp's withdrawal of his objections to the tree removal, and (2) the payment to the contractor. The court of appeals panel unanimously agreed that alleged acts of part performance must be \\\"unequivocally referable\\\" to an alleged contract in order to remove the agreement from the statute of frauds. Owens, 216 Ariz. at 282 \\u00b638, 165 P.3d at 683 (majority opinion); id. at 284 \\u00b6 44, 165 P.3d at 685 (dissenting opinion).\\n\\u00b6 12 The judges of the court of appeals parted company, however, on whether the two acts described above met this test. The majority believed that the Partnership's explanation that the two acts were undertaken in reliance on the partition agreement created an issue of fact as to part performance. Id. at 282-83 \\u00b6 39, 165 P.3d at 683-84. The dissenting opinion, on the other hand, maintained that a court can look only to the conduct itself when determining whether an act is unequivocally referable to an oral contract, not to a party's explanations of the acts. Id. at 284 \\u00b6 45,165 P.3d at 685.\\nC.\\n\\u00b6 13 The Arizona statute of frauds states, in relevant part:\\nNo action shall be brought in any court in the following cases unless the promise or agreement upon which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged, or by some person by him thereunto lawfully authorized:\\nUpon an agreement . for the sale of real property or an interest therein.\\nA.R.S. \\u00a7 44-101(6). The court of appeals held, and the parties do not dispute, that an oral partition agreement among tenants in common is \\\"for the sale of real property\\\" and thus within the scope of \\u00a7 44-101(6). See Owens, 216 Ariz. at 281 \\u00b6 33, 165 P.3d at 682; see also Restatement (Second) of Contracts \\u00a7 128(2) (1981) (\\\"A contract by joint tenants or tenants in common to partition land into separate tracts for each tenant is within the Statute of Frauds.\\\"). Nor does Owens contest the holding below that the superior court erred by granting summary judgment as to the existence of an oral partition contract. We therefore assume that such an agreement exists.\\n\\u00b6 14 The statute of frauds is by its terms absolute, providing that \\\"[n]o action\\\" can be brought on oral contracts for the conveyance of land. Atizona courts, however, have long recognized limited exceptions to the statute. See, e.g., Latimer v. Hamill, 5 Ariz. 274, 277-78, 52 P. 364, 366 (1898) (characterizing the part performance exception as \\\"too well settled to require citations of authority\\\"). The cases reason that because the statute is intended to prevent fraud, specific performance of an oral contract is sometimes required to prevent the statute from becoming \\\"an instrument by which fraud is perpetrated.\\\" Trollope v. Koerner, 106 Ariz. 10, 16, 470 P.2d 91, 97 (1970).\\n\\u00b6 15 The \\\"part performance\\\" exception to the statute of frauds is grounded in the equitable principle of estoppel. Gene Hancock Constr. Co. v. Kempton & Snedigar Dairy, 20 Ariz.App. 122, 125, 510 P.2d 752, 755 (1973), disavowed on other grounds by Gibson v. Parker Trust, 22 Ariz.App. 342, 345, 527 P.2d 301, 304 (1974); 4 Caroline N. Brown, Corbin on Contracts \\u00a7 18.1, at 501 & nn. 11-12 (rev. ed.1997); Restatement (Second) of Contracts \\u00a7 129 reporter's note. The label \\\"part performance\\\" is in some ways a misnomer: the relevant acts need not be required by the oral agreement, but rather must be undertaken in reliance on the agreement. Restatement (Second) of Contracts \\u00a7 129 cmt. a; 4 Corbin on Contracts \\u00a7 18.7, at 513-14; Restatement (First) of Contracts \\u00a7 197 cmt. b (1932).\\n\\u00b6 16 In addition to providing an equitable basis for ordering specific performance, acts of part performance serve an important evidentiary function \\u2014 they excuse the writing required by the statute because they provide convincing proof that the contract exists. See Restatement (Second) of Contracts \\u00a7 129 cmt. b; 4 Corbin on Contracts \\u00a7 18.11, at 521. So that this exception does not swallow the rule, the acts of part performance take an alleged contract outside the statute only if they cannot be explained in the absence of the contract. See Gene Hancock, 20 Ariz. App. at 125, 510 P.2d at 755; In re Marriage of Benson, 36 Cal.4th 1096, 32 Cal.Rptr.3d 471, 116 P.3d 1152, 1160 (2005); Glazer v. Dress Bam, Inc., 274 Conn. 33, 873 A.2d 929, 951 (2005); Martin v. Scholl, 678 P.2d 274, 276-78 (Utah 1983). Judge Cardozo eloquently described the part performance exception more than eighty years ago:\\nThere must be performance \\\"unequivocally referable\\\" to the agreement, performance which alone and without the aid of words of promise is unintelligible or at least extraordinary unless as an incident of ownership, assured, if not existing.\\nWhat is done must itself supply the key to what is promised. It is not enough that what is promised may give significance to what is done.\\nBurns v. McCormick, 233 N.Y. 230, 135 N.E. 273, 273 (1922). Cardozo illustrated the point with two scenarios:\\nThe housekeeper who abandons other prospects of establishment in life and renders service without pay upon the oral promise of her employer to give her a life estate in land must find her remedy in an action to recover the value of the service. Her conduct, separated from the promise, is not significant of ownership, either present or prospective. On the other hand, the buyer who not only pays the price, but possesses and improves his acre, may have relief in equity without producing a conveyance. His conduct is itself the symptom of a promise that a conveyance will be made.\\nId. at 273-74 (citations omitted).\\n\\u00b6 17 The Bums reasoning is reflected in the First Restatement of Contracts, which recognized the part performance exception only when the purchaser \\\"makes valuable improvements on the land\\\" or \\\"takes possession . and also pays a portion or all of the purchase price.\\\" Restatement (First) of Contracts \\u00a7 197. See Condon v. Ariz. Hous. Corp., 63 Ariz. 125, 133, 160 P.2d 342, 346 (1945) (applying First Restatement).\\n\\u00b6 18 The Second Restatement, adopted in 1981, relies expressly on principles of estoppel, and thus provides a broader formulation of the part performance rule:\\nA contract for the transfer of an interest in land may be specifically enforced notwithstanding failure to comply with the Statute of Frauds if it is established that the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement.\\nRestatement (Second) of Contracts \\u00a7 129. Under \\u00a7 129, acts other than undertaking improvements, paying the purchase price, and taking possession can be considered as part performance. Id. \\u00a7 129 cmt. d. But the Second Restatement does not abandon the traditional requirement that the acts of part performance be \\\"unequivocally referable\\\" to the alleged agreement. Id. The modern ease law thus requires that any alleged act of part performance be consistent only with the existence of a contract and inconsistent with other explanations such as ongoing negotiations, Glazer, 873 A.2d at 950-51, or an existing relationship between the parties, Nelson v. Miller, 479 So.2d 1225, 1226 (Ala.1985) (tenants in common and brother-sister); Sword v. Sweet, 140 Idaho 242, 92 P.3d 492, 500 (2004) (husband-wife); Player v. Chandler, 299 S.C. 101, 382 S.E.2d 891, 894 (1989) (landlord-tenant); Martin, 678 P.2d at 279 (employer-employee). If the alleged acts do not conclusively establish that a contract exists, reliance upon them would circumvent the evidentiary function of the statute.\\nD.\\n\\u00b6 19 The court of appeals held that the Partnership's withdrawal of its objection to the tree removal and its payment of one-third of the landscaping contractor's bill raised a triable issue of fact about part performance. We disagree. Neither act is \\\"unequivocally referable\\\" to the alleged contract, or put differently, neither act is \\\"of such character as not to be reasonably explicable on other grounds.\\\" 4 Corbin on Contracts \\u00a7 18.23, at 564; see also Verzier v. Convard, 75 Conn. 1, 52 A. 255, 257 (1902) (stating that part performance must consist of acts that \\\"cannot, in the ordinary course of human conduct, be accounted for in any other manner than as having been done in pursuance of a contract\\\" (citing John N. Pomeroy, Specific Performance of Contracts \\u00a7 108, at 154 (2d ed. 1897))).\\n\\u00b6 20 The payment to the contractor is not convincing evidence of an agreement to partition, let alone \\\"unequivocally referable\\\" to such a contract. Given that the Partnership had a one-third interest in the Parcel, its payment of one-third of the contractor's bill is more consistent with the continued existence of the co-tenancy than with an agreement to partition. See 20 Am.Jm.2d, Cotenancy & Joint Ownership \\u00a7 64, at 157-58 (2d ed.1995) (noting general rule that tenants in common share financial responsibility for maintenance of property in proportion to then* interests). Indeed, had the parties actually agreed to partition the Parcel, the Partnership would have had no financial responsibility for tree removal on Lots 17 and 18.\\n\\u00b6 21 Similarly, the withdrawal of objections to the tree removal, while perhaps more probative of an agreement to partition, is also consistent with a number of other scenarios, including continued co-tenancy, cf. Jackson v. Low Cost Auto Parts, Inc., 25 Ariz.App. 515, 516, 544 P.2d 1116, 1117 (1976) (noting right of tenant in common to use and enjoy the entire property \\\"as if he were the sole owner, provided his actions do not prejudice the use and enjoyment of the property by the other co-owner\\\"), or ongoing negotiations about partition. Once again, if, as the Partnership contends, Lots 17 and 18 had already been promised to Owens, it is difficult to understand why Thomas Schepp felt he could object to, let alone prevent, Owens's actions.\\n\\u00b622 The Partnership argues, however, that because Thomas Schepp's affidavit must be taken as true for purposes of summary judgment, his explanations for the acts also must be accepted. It follows, the Part nership argues, that the alleged acts of part performance were unequivocally referable to the partition contract because Schepp claims the contract was the only reason for these acts.\\n\\u00b6 23 This argument fails. The issue is not whether a court must take as true assertions in an affidavit of a party opposing a summary judgment motion. Rather, we must decide whether Schepp's explanations, even if assumed true, can be used to satisfy the part performance rule as a matter of evidence. We hold that these explanations are not relevant. Under Cardozo's classic formulation, the alleged part performance must be \\\"alone and without the aid of words of promise . unintelligible or at least extraordinary unless as an incident of ownership.\\\" Bums, 135 N.E. at 273. The Partnership's perceived need to explain why the acts were undertaken suggests that each act does not, in Cardozo's words, \\\"itself supply the key to what is promised.\\\" Id.\\n\\u00b6 24 The statute of frauds enacts a clear legislative prohibition against enforcement of an oral agreement for the conveyance of land. The requirement that the alleged acts of part performance be unequivocally referable to the alleged contract assures that only in rare circumstances will courts exempt oral agreements from the plain terms of the statute. See Coleman v. Coleman, 48 Ariz. 337, 344, 61 P.2d 441, 444 (1936) (stating the statute of frauds \\\"prevent[s] existing estates in land from being upset by parol evidence\\\"). The statutory policy would be severely compromised if the statute of frauds could be avoided whenever a plaintiff claimed that he undertook any act in reliance on an alleged agreement. If such were the case, the part performance exception would virtually swallow the rule.\\nE.\\n\\u00b625 The Partnership also relies on Restatement (Second) of Contracts \\u00a7 128(2), which provides:\\nA contract by joint tenants or tenants in common to partition land into separate tracts for each tenant is within the Statute of Frauds but becomes enforceable notwithstanding the Statute as to each tract when possession of it is taken in severalty in accordance with the agreement.\\nThe Partnership asserts that \\u00a7 128(2) is satisfied because the parties took possession of separate tracts of the Parcel in severalty. In support of that argument, the Partnership claims that after the parties agreed to partition, in addition to removing the trees from Lots 17 and 18, Owens installed fencing and other improvements on these lots, brought horses onto the lots, and regularly trimmed weeds and grass on the two lots, while Thomas Schepp continued to reside on Lot 20.\\n\\u00b6 26 In some cases, evidence that tenants in common took exclusive possession of divided portions of a tract can provide compelling evidence that an oral partition agreement exists. But such is not the case here. Thomas Schepp resided on Lot 20 for some fourteen years before the alleged partition agreement; his continued residence is thus as consistent with continuation of the status quo as with the alleged agreement. Similarly, Owens's alleged acts are consistent with his right to use the Parcel and improve the property as a tenant in common. Nor does the record suggest that any co-tenant was excluded from any portion of the Parcel after the alleged agreement. Therefore, neither party's alleged acts of possession are unequivocally referable to the alleged contract.\\nIII.\\n\\u00b627 For the reasons above, the court of appeals erred in concluding that the alleged acts of part performance took the oral partition agreement outside the statute of frauds. The Partnership contends, nonetheless, that the partial summary judgment should be vacated on a ground not addressed by the court of appeals in light of its decision to remand this case for trial. The Partnership argues that the trial court abused its discretion in denying its motion to continue the summary judgment proceedings until it could depose Owens and examine his documents. See Ariz. R. Civ. P. 56(f) (providing that the superior court may refuse an application for summary judgment when the opposing party cannot for reasons stated by affidavit present facts essential to the opposition).\\n\\u00b6 28 The superior court did not abuse its discretion in refusing to allow the requested document discovery. Under \\u00a7 129, a party seeking equitable enforcement of an oral contract to convey land must show he acted to his detriment in reliance on the alleged agreement. See Rentz v. Grant, 934 So.2d 368, 372, 374-75 (Ala.2006). Only the Partnership's own actions, not those of Owens, can show the required detrimental reliance. The Partnership could not have relied on actions or statements of Owens about which it was unaware. Further document discovery therefore could not have aided the Partnership in proving part performance.\\n\\u00b6 29 The Partnership's request to depose Owens presents a more difficult issue. An admission under oath by the party opposing enforcement of an oral contract that the contract exists can take the agreement outside of the statute of frauds. See 4 Corbin on Contracts \\u00a7 14.2, at 175-80; see also Restatement (Second) of Contracts \\u00a7 129 cmt. d. The judicial admission exception is a \\\"common-sense recognition that if the defendant admitted in a pleading that he had made a contract with the plaintiff, the purpose of the statute of frauds \\u2014 protection against fraudulent or otherwise false contractual claims\\u2014 was fulfilled.\\\" DF Activities Corp. v. Brown, 851 F.2d 920, 923 (7th Cir.1988) (Posner, J.).\\n\\u00b6 30 Under the facts of this case, the superior court did not abuse its discretion in refusing to continue the summary judgment motion to allow Owens's deposition. Owens's verified complaint seeking statutory partition asserted, under penalty of perjury, that \\\"[t]he parties have been unable to agree on partition in accordance with their respective interests.\\\" More importantly, Owens specifically denied the existence of the alleged contract in his verified reply to the Partnership's counterclaim, stating under penalty of perjury that he \\\"particularly and specifically\\\" denied \\\"the allegations . wherein it is claimed that the parties entered into a 'Partition Agreement.'\\\" The reply later states, again under penalty of perjury, that \\\"[t]he alleged 'Partition Agreement' referenced in the Counterclaim does not exist.\\\" Thus, the gist of the motion for continuance was the Partnership's hope that Owens would disavow these verified statements in his deposition.\\n\\u00b631 The United States Court of Appeals for the Seventh Circuit has addressed a virtually identical situation. In DF Activities, the plaintiff sought to enforce an oral contract for the sale of goods. 851 F.2d at 921. The defendant moved to dismiss under the statute of frauds and appended to her motion an affidavit denying the existence of any contract. Id. The district court granted the motion to dismiss. Id. at 922. On appeal, the plaintiff cited Uniform Commercial Code \\u00a7 2-201(3), which exempts a contract for the sale of goods from the statute of frauds when \\\"the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made,\\\" and argued that the trial court had erred by refusing to allow the deposition of the defendant. Id. at 922.\\n\\u00b632 The Seventh Circuit nonetheless affirmed. Id. at 924. It noted that further discovery might well be appropriate if there were \\\"a bare motion to dismiss, or an answer, with no evidentiary materials,\\\" because under such circumstances \\\"the possibility remains a live one that, if asked under oath whether a contract had been made, the defendant would admit it had been.\\\" Id. at 922. But when the defendant already has sworn under oath that no contract exists, \\\"a plaintiff in a suit on a contract within the statute of frauds should not be allowed to resist a motion to dismiss . by arguing that his luck may improve in discovery.\\\" Id. at 923. To hold otherwise would \\\"invite the unedifying form of discovery in which the examining lawyer tries to put words in the witness's mouth and construe them as admissions.\\\" Id. Indeed, if such discovery were required, \\\"the statute of frauds becomes a defense of meager value,\\\" id., and its purpose of avoiding litigation over whether a contract exists would be undermined.\\n\\u00b6 33 In this case, Owens unequivocally and repeatedly denied under oath that the contract existed. See Ariz. R. Civ. P. 80(i). (treating statements made under penalty of perjury as if made under oath). Under these circumstances, the superior court did not abuse its discretion by refusing to allow further discovery on the bare hope that Owens would disavow these statements if deposed.\\nIV.\\n\\u00b6 34 Finally, the Partnership argues that, even if statutory partition is warranted, the superior court erred by not instructing the commissioners that they could issue a report awarding Lot 20 to the Partnership and Lots 17 and 18 to Owens, with any disparity in values offset by an equalization payment. The superior court did not include such an instruction in its order appointing the commissioners, but took no express position on the authority of the commissioners to so recommend. The court of appeals did not address this issue in light of its decision to vacate the order requiring statutory partition.\\n\\u00b6 35 The superior court did not err in refusing to give the requested instruction to the commissioners. \\\"[P]artition is a statutory procedure and, absent an agreement between the parties to voluntarily divide the property, any remedy must comply with the statutory scheme.\\\" Cohen v. Frey, 215 Ariz. 62, 65 \\u00b6 6, 157 P.3d 482, 485 (App.2007). Our statutes authorize commissioners to make a report to the court either dividing the subject property equitably, A.R.S. \\u00a7 12-1216, or, if such a division is not possible, recommending sale of the property, id. \\u00a7 12-1218(A). The statutes do not contemplate that in those cases in which the commissioners conclude that the property cannot be divided equitably, they instead propose an equalization payment. See 59A Am.Jur.2d, Partition \\u00a7 181, at 107 (2d ed. 1987) (\\\"[I]n the absence of a statute, it appears that such power does not reside in the commissioners in a partition proceeding.\\\").\\n\\u00b636 Because the Partnership argues only that the superior court should have instructed the commissioners to arrive at an equalization payment, we need not decide today whether the court itself has such equitable power. We note, however, that when commissioners conclude that an equitable division is not possible, they must report their reasons for so concluding to the superior court. A.R.S. \\u00a7 12-1218(A). That report will necessarily include their evaluation of the Parcel as a whole and their conclusions as to why the Parcel cannot practically be divided in a manner giving each co-tenant his respective interest. Any party may file objections to such a report and is thereafter entitled to a hearing before the superior court. Id. \\u00a7 12-1219. If the commissioners conclude that an equitable division of the Parcel is impossible, the Partnership can raise its arguments concerning the court's power to order an equalization payment at that time and any decision will be subject to appellate review on a full record.\\nV.\\n\\u00b6 37 For the foregoing reasons, we vacate the opinion of the court of appeals and affirm the judgment of the superior court. This case is remanded to the superior court for further proceedings consistent with this opinion.\\nCONCURRING: RUTH V. McGREGOR, Chief Justice, REBECCA WHITE BERCH, Vice Chief Justice, MICHAEL D. RYAN and W. SCOTT BALES, Justices.\\n. After the tree removal, the parties unsuccessfully attempted to agree upon an equalization payment. Owens sought $233,333 and an access easement to Lots 17 and 18. The Partnership proposed a division with no payment or easement.\\n. The Second Restatement also stresses a principle noted in our cases: The part performance exception, grounded in principles of equity, should not be invoked unless necessary to avoid injustice. See Remele v. Hamilton, 78 Ariz. 45, 49, 275 P.2d 403, 406 (1954); Haynie v. Taylor, 69 Ariz. 339, 346, 213 P.2d 684, 689 (1950).\\n. Typically, forbearance to act carries less evidentiary value in showing part performance than an affirmative act because inaction can easily be ascribed to reasons other than a contract. See, e.g., Martin, 678 P.2d at 279; Beall v. Beall, 291 Md. 224, 434 A.2d 1015, 1020 (1981).\\n. A similar rule appears in Restatement (First) of Contracts! 196(2).\\n. Given our conclusion that the parties' acts did not take the alleged contract outside the statute of frauds, we need not consider whether, in light of the statutory partition remedy, \\\"injustice can be avoided only by specific enforcement.\\\" Restatement of Contracts (Second) ! 129. See n. 2, supra.\\n. For obvious reasons, the exception applies only when the alleged admission occurs during a judicial proceeding. If the plaintiff's statement that the defendant had admitted to the contract outside of court were allowed to circumvent the statute of frauds, the statute would have no force at all.\\n. The dissenting judge in DF Activities agreed that a trial judge would not abuse his discretion in denying further discovery in light of a defendant's express sworn denial of a contract. 851 F.2d at 924-25 (Flaum, J., dissenting). He thought, however, that the defendant's affidavit in that case did not contain a \\\"blanket denial'' of the contract's existence. Id. at 925.\"}"