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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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/arizona/1216911.json b/arizona/1216911.json
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--- /dev/null
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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.\"}"
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diff --git a/arizona/1217983.json b/arizona/1217983.json
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+"{\"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.\"}"
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diff --git a/arizona/1223294.json b/arizona/1223294.json
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+"{\"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.\\\"\"}"
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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.\"}"
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+"{\"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).\"}"
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+"{\"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.\"}"
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+"{\"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.\\\"\"}"
\ No newline at end of file
diff --git a/arizona/1237958.json b/arizona/1237958.json
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+"{\"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.\"}"
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+"{\"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.\"}"
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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.\"}"
\ No newline at end of file
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+"{\"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.\"}"
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diff --git a/arizona/1251005.json b/arizona/1251005.json
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index 0000000000000000000000000000000000000000..4a9f0a6ad4c07e6f17407933847ad48f6796e286
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@@ -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.\"}"
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+"{\"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.\"}"
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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.\"}"
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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.\"}"
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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).\"}"
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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).\"}"
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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.\"}"
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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.\\\"\"}"
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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.\"}"
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@@ -0,0 +1 @@
+"{\"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.\"}"
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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.\"}"
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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).\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
\ No newline at end of file
diff --git a/arizona/1546309.json b/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\"}"
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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).\"}"
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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)).\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
\ No newline at end of file
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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.\"}"
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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.\"}"
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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.\\\"\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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+"{\"id\": \"391883\", \"name\": \"In re the Marriage of: Ann L. GEROW, Petitioner-Appellee, v. Bruce E. COVILL, Respondent-Appellant\", \"name_abbreviation\": \"Marriage of Gerow v. Covill\", \"decision_date\": \"1998-04-09\", \"docket_number\": \"No. 1CA-CV 97-0187\", \"first_page\": \"9\", \"last_page\": \"19\", \"citations\": \"192 Ariz. 9\", \"volume\": \"192\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:39:48.524136+00:00\", \"provenance\": \"CAP\", \"judges\": \"GARBARINO and GRANT, JJ., concur.\", \"parties\": \"In re the Marriage of: Ann L. GEROW, Petitioner-Appellee, v. Bruce E. COVILL, Respondent-Appellant.\", \"head_matter\": \"960 P.2d 55\\nIn re the Marriage of: Ann L. GEROW, Petitioner-Appellee, v. Bruce E. COVILL, Respondent-Appellant.\\nNo. 1CA-CV 97-0187.\\nCourt of Appeals of Arizona, Division 1, Department C.\\nApril 9, 1998.\\nRedesignated as Opinion and Publication ordered May 5, 1998.\\nAs Amended Aug. 26, 1998.\\nBryan Cave, LLP by Neil Vincent Wake, and Jensen & Kelley, P.A. by Robert A. Jensen, Phoenix, for Petitioner-Appellee.\\nMariscal, Weeks, Mcintyre & Friedlander, P.A. by Michael S. Rubin, Robert L. Schwartz, Phoenix, for Respondent-Appellant.\", \"word_count\": \"5408\", \"char_count\": \"33026\", \"text\": \"OPINION\\nLANKFORD, Presiding Judge.\\n\\u00b6 1 Bruce E. Covill (\\\"Husband\\\") appeals from that part of a domestic relations judgment pertaining to Cyber Publishing, Inc. (\\\"Cyber\\\"). The trial court found that Husband had fraudulently conveyed his consulting business. The court accordingly awarded Ann L. Gerow (\\\"Wife\\\") a fifty percent ownership of that business, Cyber.\\n\\u00b62 The facts are as follows. Husband and Wife married in 1974. Twenty years later, in May 1994, Wife filed a petition for dissolution.\\n\\u00b6 3 At the time of filing, Husband was self-employed as an independent consultant working with information systems and information delivery, with a focus on electronic media. He worked primarily with the travel industry. By August 1994, Husband was involved in a new business entity, Cyber.\\n\\u00b6 4 Cyber began as the result of conversations among Husband and his brother and sister-in-law, Jeff and Ann Covill. Cyber was to produce electronic brochures for businesses interested in having a presence on the Internet. Husband was named the president and a director of the company and was responsible for the day-to-day management of company affairs. Incorporation occurred in August 1994, with Ann Covill listed as the sole shareholder. She had contributed $2500 for start-up costs. No shareholder, officer, director or employee of Cyber has ever contributed any further capital.\\n\\u00b6 5 Shortly after incorporation, Wife learned of Cyber when she found the incorporation papers in Husband's office in their shared home. Husband disclosed information about Cyber to Wife in a letter sent a few weeks later.\\n\\u00b6 6 Two of the four clients Husband had worked with in his independent consulting business in recent years became Cyber's major clients. Cyber provided Internet services for both companies, The Hotel Industry Switch Company (\\\"THISCO\\\") and Best Western International.\\n\\u00b67 Though he had maintained his sole proprietorship through the first few months of Cyber's existence, Husband had ceased his business completely and worked solely for Cyber by February 1995. His salary was increased from $2500 per month to $10,000 per month and he received a $30,000 bonus in 1994. Husband received no designated payment for any intangible assets he brought to Cyber from his sole proprietorship, such as goodwill or a client list.\\n\\u00b6 8 In the joint pretrial statement, Wife raised the issue of the true ownership of Cyber. She claimed that instead of merely being an employee of the company, Husband actually was an owner. She sought equitable distribution of Cyber as a community asset. The joint pretrial statement was filed June 7, 1995. Though the trial had originally been set to begin in July 1995, it was continued and began September 21, 1995, and concluded on January 17, 1996, after a total of nine trial days.\\n\\u00b6 9 The parties submitted their proposed findings of fact and conclusions of law. Husband objected to Wife's proposed findings and conclusions. The court adopted substantially all of Wife's proposals, but later acknowledged that it had not considered the objections. Implicit in Rule 3.7(c), Rules of the Superior Court of Maricopa County, is that the court will consider the objections before entertaining findings and conclusions. However, the objections here generally related to the sufficiency of the evidence. Such concerns may be and indeed were in this case addressed in a motion for new trial. Sufficiency of the evidence objections can be made even when not raised as objections to proposed findings and conclusions. Ariz. R. Civ. P. 52(b). Therefore, though it may have been error to fail to consider the objections, the error is harmless because any substantive errors in the findings and conclusions were raised by motion for new trial and have been preserved for appeal.\\n\\u00b6 10 The court made extensive findings of fact. It stated that it disbelieved Husband's statement that he was financially unable to start Cyber himself in light of his historical six-figure income and the expenditure of \\\"tens of thousands of dollars\\\" in gifts and loans to a female friend. The court saw the incorporation of Cyber as an attempt to \\\"remove the business and its asset from the marital community.\\\" The court also found that all of Cyber's revenue-producing clients were either prior clients of Husband's or derived from his prior business contacts, which had developed during the marriage. The court noted that Cyber had been \\\"remarkably successful and highly lucrative for a start-up business.\\\" The court also found that Husband had breached a fiduciary duty owed to Wife by \\\"permitting his sole proprietorship to be incorporated and wholly owned by his sister-in-law.\\\"\\n\\u00b6 11 As a result of these findings, the court ordered in its judgment and decree that:\\n[A]s between petitioner and respondent, petitioner is and shall be the owner of one-half of the capital stock in Cyber Publishing, Inc. Upon resolution, whether by consent or by adjudication, as against Ann Covill that the stock ostensibly in her name is in fact owned by husband or the marital community of husband and wife, the ownership of the stock on the books and records of Cyber Publishing, Inc. shall also be changed to reflect wife's one-half ownership interest as provided hereon.\\nThe court denied Husband's motion for new trial.\\n\\u00b6'12 Husband advances eight contentions on appeal. They are as follows:\\n1. Because the court awarded Wife one-half of Cyber stock, but ordered a stock ownership record change reflecting that award only after the issue of Husband's ownership was decided as against Ann Covill, the judgment is conditional and therefore void.\\n2. Wife failed to join indispensable parties \\u2014 Ann Covill and Cyber \\u2014 in the divorce proceedings.\\n3. The evidence does not support the trial court's finding that Husband transferred community property to Cyber.\\n4. The decree violates Husband's constitutional right against indentured servitude.\\n5. No fraudulent conveyance was shown because the necessary elements were not proven by clear and convincing evidence.\\n6. The court erred in finding that Husband owed Wife a fiduciary duty and that Husband breached that duty.\\n7. Wife did not properly and timely disclose and raise the issues concerning the formation of Cyber.\\n8. Pursuant to Arizona Civil Appellate Procedure Rule 21(c), Husband is entitled to attorneys' fees.\\n\\u00b6 13 We have jurisdiction over this appeal pursuant to Arizona Revised Statutes Annotated (\\\"A.R.S.\\\") sections 12-120.21(A)(1), 12-2101(B), and 12-2101(F)(1). On appeal, we view the evidence in the light most favorable to the prevailing party and affirm if any evidence supports the judgment. Paul Schoonover, Inc. v. Ram Constr., Inc., 129 Ariz. 204, 205, 630 P.2d 27, 28 (1981). We are not bound, however, by the trial court's decisions on questions of law. Premier Fin. Servs. v. Citibank (Arizona), 185 Ariz. 80, 87, 912 P.2d 1309, 1316 (App.1995).\\n\\u00b6 14 The first issue is Husband's allegation that the judgment is void because it is conditional. The trial court stated that \\\"os between petitioner and respondent, petitioner is and shall be the owner of one-half of the capital stock in Cyber Publishing, Inc.\\\" (Emphasis added). The court then stated that change would be later reflected on Cyber's books only after the ownership of the stock was decided. Husband asserts that the unsettled ownership issues against Ann Covill, the record owner of Cyber's stock, make the judgment between Husband and Wife conditional and therefore, void.\\n\\u00b6 15 While conditional judgments are generally void, there are exceptions to this rule. Peterson v. Overson, 52 Ariz. 203, 205, 79 P.2d 958, 959 (1938). One exception is an alternative or conditional judgment that \\\"is of such a nature that it may be determined therefrom definitely what rights and obligations pertain to the respective parties.\\\" Id. at 206, 79 P.2d at 959. Here, the rights and obligations of Husband and Wife may be determined with such certainty. As between them, Wife has a right to one-half of the value of that portion of Cyber determined to be Husband's. Husband has the obligation to release that amount to Wife. The domestic relations court made the assumption that his actual ownership was one hundred percent, but recognized that his ownership as against Ann Covill would be determined separately. The contingency, the Husband's ownership, does not change the rights and obligations between the spouses.\\n\\u00b6 16 Equitable judgments constitute another exception. Wright v. Mayberry, 158 Ariz. 387, 389, 762 P.2d 1341, 1343 (App.1988) (recognizing equitable exceptions to the rule); 49 C.J.S. Judgments \\u00a7 83 (1997). A domestic relations court sits in equity. Guzman v. Guzman, 175 Ariz. 183,188, 854 P.2d 1169, 1174 (App.1993). 'When a court of equity renders a conditional decree . [i]t is simply adjusting the equities between the parties and granting to one or the other certain relief to which the litigants may be entitled....\\\" Mason v. Ellison, 63 Ariz. 196, 203, 160 P.2d 326, 329 (1945); see also In re Marriage of Zeliadt, 390 N.W.2d 117, 120 (Iowa 1986) (\\\"The court sitting in equity has the power and flexibility to impose equitable terms upon parties as conditions of granting equitable relief.\\\"). Here, the domestic relations court merely used its power as an equity court to \\\"adapt[ ] its relief and mold[] its decree[] to satisfy the requirements of the case and to conserve the equities of the parties.... \\\" Mason, 63 Ariz. at 203, 160 P.2d at 329 (citation omitted).\\n\\u00b6 17 Though Husband cited Peterson and Wright in support of his contention that all conditional judgments are void, both cases recognize exceptions to the general rule. Husband also cites Weiner v. Ash, 157 Ariz. 232, 756 P.2d 329 (App.1988), a case in law and not in equity. In Weiner, the court found that where the award appeared to be based on the possibility that that defendant might again seek to kill the plaintiff and it would be for any future damage that might result from that occurrence, the judgment was void as \\\"an actual award of compensation for probable future damages.\\\" Id. at 235, 756 P.2d at 332. The contingencies involved a speculative future event and the amount of damages from that event. In the present action, the amount of damages has already been established and the ownership of Cyber will be decided in Maricopa County cause number CV 96-13730.\\n\\u00b6 18 The second issue raised by Husband is Wife's failure to join as parties Cyber and Ann Covill. Cyber is not directly interested in who owns its stock and thus in the change wrought by the divorce court. Husband does not argue otherwise. We do not address this point any further.\\n\\u00b6 19 However, Husband does assert that Ann Covill is an indispensable party because she is the alleged third party in the fraudulent conveyance and as such, he implies, Wife could not obtain an effective judgment in Ann Covill's absence. The indispensability of parties is a question of law. Connolly v. Great Basin Ins. Co., 6 Ariz.App. 280, 285, 431 P.2d 921, 926 (1967). We review questions of law de novo. See Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 114, 412 P.2d 47, 51 (1966). We note that though this issue was not raised below, the defense of failure to join is not waivable and may be raised for the first time at the appellate level. City of Flagstaff v. Babbitt, 8 Ariz.App. 123, 127, 443 P.2d 938, 942 (1968).\\n\\u00b6 20 Ann Covill could have been joined pursuant to Arizona Civil Procedure Rule 20. Additionally, A.R.S. section 25-314(D) allows the court to join parties \\\"necessary for the exercise of its authority.\\\" Roden v. Roden, 190 Ariz. 407, 409, 949 P.2d 67, 69 (App.1997), permits the dissolution court to decide related matters. However, Ann Covill was not an indispensable party, without whom the action could not proceed.\\n\\u00b621 The court decides who is an indispensable party after it finds that the party is necessary but cannot be joined. Ariz. R. Civ. P. 19(b). A necessary party is: (1) one in whose absence complete relief is not possible among those already parties, or (2) one whose interests would be impaired or impeded by a judgment, or (3) one whose absence would leave those already parties subject to multiple or inconsistent obligations. Ariz. R. Civ. P. 19(a). The court also considers possible resulting prejudice and adequacy of remedy before determining indispensability.\\n\\u00b6 22 Ann Covill is not an indispensable party. If an action is brought for a wrongful transfer of real or personal property and it is possible to fashion relief which does not adversely affect the transferee's interest, the transferee need not be joined in an action for a judgment of damages against the defendant. 3A James W. Moore et al., Moore's Federal Practice \\u00b6 19.09[5] at 19-186 (2d ed.1985); see also Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105 (2d Cir.1953) (holding that when a plaintiff seeks damages only against the defendant who transferred the property and not against the party in possession, the possessing party is not indispensable). The \\\"present holder of legal title to property alleged to have been transferred fraudulently is [not] indispensable if . the relief sought against the defendant does not injuriously affect the absent transferee's title.\\\" Moore, supra at 19-188.\\n\\u00b6 23 The court was able to fashion relief despite Ann Covill's absence. The court, pursuant to A.R.S. section 25-318, decided a claim between the spouses. It awarded Wife an interest against Husband without affecting any rights Ann Covill may have. Ann Covill is not an indispensable party.\\n\\u00b6 24 The third issue raised by Husband is that the evidence does not support the trial court's finding that Husband transferred community property to Cyber. Reviewing the sufficiency of evidence, we will not reweigh the evidence; we determine only if substantial evidence supported the court's action. Rowe v. Rowe, 154 Ariz. 616, 620, 744 P.2d 717, 721 (App.1987). Absent clear error, we are bound by the trial court's findings. Aztec Film Productions v. Tucson Gas & Elec. Co., 11 Ariz.App. 241, 243, 463 P.2d 547, 549 (1969). In this case, we look to see if the evidence supports the existence and transfer of a community asset.\\n\\u00b6 25 Husband argues that though the trial court found that his \\\"contacts,\\\" \\\"expertise,\\\" and \\\"knowledge\\\" were the assets transferred to the corporation, these are not community assets. Actually, the court never stated specifically that these were the community assets removed by Husband, and indeed the court was never precise in its description. However, the court recognized that intangible assets were involved. Because Husband received a substantial salary and bonuses, he was compensated for his labor and the expertise and knowledge he employed in his work. Wife has not attempted to take any portion of Husband's income. As long as he is compensated for those intangibles, the corporation does not retain them as its own assets.\\n\\u00b626 Other intangible assets may constitute community property. For example, the \\\"goodwill\\\" developed in connection with Husband's sole proprietorship during the marriage is considered a community asset. See Mitchell v. Mitchell, 152 Ariz. 317, 320, 732 P.2d 208, 211 (1987). Goodwill is defined as an intangible asset that is \\\"an element responsible for profits in a business.\\\" Wisner v. Wisner, 129 Ariz. 333, 337, 631 P.2d 115, 119 (App.1981) (citation omitted). Goodwill may also be defined as one's reputation. Id. A spouse has a claim for a share of goodwill as a community asset:\\nUnder the principles of community property law, the wife, by virtue of her position as wife, made to that value [goodwill] the same contribution as does a wife to any of the husband's earnings and accumulations during marriage. She is as much entitled to be recompensed for that contribution as if it were represented by the increased value of stock in a family business.\\n152 Ariz. at 320, 732 P.2d at 211 (citation omitted).\\n\\u00b627 Husband cannot change the community nature of the goodwill asset by merely changing the form of its ownership through incorporation. Rowe, 154 Ariz. at 619, 744 P.2d at 720. The goodwill created was due to Husband's labors expended during marriage and the community is entitled to the asset he created. See Garrett v. Garrett, 140 Ariz. 564, 568, 683 P.2d 1166, 1170 (App.1983).\\n\\u00b6 28 Wife has asked for and received only a portion of those community assets developed during the marriage and transferred to Cyber for no consideration. Because Husband concedes that Cyber well compensated him for his labor, the award of Cyber stock necessarily represents a division of the capital of Cyber and not an award based on the value of Husband's labor.\\n\\u00b629 The evidence supports the court's decision. All of the revenue-producing clients of Cyber were developed through Husband's previous clientele and associations acquired during the marriage. Cyber, was conceived of and developed by Husband during the marriage. Negotiations for one of the Cyber contracts were undertaken by Husband during his sole proprietorship before Cyber's incorporation. If Husband had incorporated Cyber, instead of allowing Ann Covill to do so, Cyber would have been a community asset and subject to asset distribution pursuant to the dissolution.\\n\\u00b6 30 Husband cites a number of cases in support of his contention that no community asset was created or transferred. While the cases he cites find no community property in professional licenses or degrees, in post-dissolution separate earnings, or in contingent fees paid after dissolution, Husband overlooks that the cases do recognize goodwill as a community asset. See, e.g., Wisner, 129 Ariz. 333, 631 P.2d 115 (holding that a professional degree or license is separate property but professional goodwill of a business earned during marriage is community property); Koelsch v. Koelsch, 148 Ariz. 176, 181, 713 P.2d 1234, 1239 (1986) (holding that post-dissolution earnings or benefits are separate property, but those earnings and/or retirement benefits earned during marriage are community property); Miller v. Miller, 140 Ariz. 520, 523, 683 P.2d 319, 322 (App.1984) (holding similar to Koelsch); Garrett, 140 Ariz. 564, 683 P.2d 1166 (holding that the portion of contingent fee earned during marriage is community property though any portion earned post-dissolution is separate property). We hold that the trial court properly found and distributed a community asset.\\n\\u00b631 As his fourth issue, Husband claims the trial court's award violated his constitutional right against indentured servitude. He contends that the court improperly conveyed an interest in his post-dissolution income and earning potential. This argument ignores the nature of the relief awarded. Wife has been awarded only half of the stock, representing her portion of an intangible asset, goodwill, created during the marriage. She received no portion of Husband's future income.\\n\\u00b632 The fifth issue is Husband's claim that the elements of fraudulent conveyance were not sufficiently proven. We review the evidence in a light most favorable to supporting the trial court's judgment. Premier Fin. Servs., 185 Ariz. at 85, 912 P.2d at 1314.\\n1\\u00cd 33 Fraudulent conveyance may be shown by clear and satisfactory evidence of an \\\"actual intent to hinder, delay or defraud any creditor of the debtor\\\" or of a debtor receiving no reasonable consideration for a transfer or obligation under certain circumstances. A.R.S. \\u00a7 44-1004(A)(l); see Sackin v. Kersting, 105 Ariz. 464, 465, 466 P.2d 758, 759 (1970); Transamerica Ins. Co. v. Trout, 145 Ariz. 355, 360, 701 P.2d 851, 856 (App.1985). Actual intent may be shown by direct proof or by circumstantial evidence from which actual intent may be reasonably inferred. Benge, 151 Ariz. at 223, 726 P.2d at 1092; Premier Fin. Servs., 185 Ariz. at 85, 912 P.2d at 1314. The statute provides a non-exclusive list of factors to consider when determining if actual intent to hinder, delay or defraud exists. A.R.S. \\u00a7 44-1004. No further evidence of the common law elements of fraud are needed once actual intent is shown. See Benge, 151 Ariz. at 223, 726 P.2d at 1092.\\n\\u00b634 Though Husband reviews seven of the \\\"badges of fraud\\\" in an attempt to show that they were not proven by clear and convincing evidence, he fails to realize that the badges are merely \\\"signs or marks of fraud\\\" from which intent may be inferred, and are not required elements. Torosian v. Paulos, 82 Ariz. 304, 312, 313 P.2d 382, 388 (1957); A.R.S. \\u00a7 44-1004. \\\"[T]hey are facts having a tendency to show the existence of fraud, although their value as evidence is relative and not absolute . Often a single one of them may establish and stamp a transaction as fraudulent. When, however, several are found in the same transaction, strong, clear evidence will be required to repel the conclusion of fraudulent intent.\\\" Torosian, 82 Ariz. at 312, 313 P.2d at 388; see also Cashion Gin Co. v. Kulikov, 1 Ariz.App. 90, 97, 399 P.2d 711, 718 (1965) (recognizing that one or two badges of fraud may be sufficient to prove fraudulent conveyance).\\n\\u00b6 35 In responding to the badges of fraud found by the court, Husband relies heavily on his assertion that no asset was ever transferred. As discussed above, however, the trial court properly found that an asset was transferred.\\n\\u00b636 The following discussion considers the pertinent \\\"badges of fraud.\\\" One, Husband transferred the goodwill of his sole proprietorship to an insider, a family member. Two, he retained control of the asset by retaining substantive control of Cyber. Three, the transfer was concealed until Wife discovered the incorporation papers. Four, before the transfer was made, Husband had already become a party to a legal action, the dissolution. Five, Husband transferred all or substantially all of his sole proprietorship's assets. By the time the sole proprietorship ceased operation, no further assets remained. Six, no payment was ever made for the goodwill Husband brought to Cyber. We hold that Husband's actual intent to hinder, delay or defraud Wife could be reasonably inferred from the presence of these factors, which sufficiently supports a finding of fraudulent conveyance.\\n\\u00b6 37 Husband contends, as his sixth issue, that the court erred when it found that Husband owed Wife a fiduciary duty and that the duty was breached. Whether a duty exists is a question of law, so we review it de novo. See Tovrea Land & Cattle Co., 100 Ariz. at 114, 412 P.2d at-51.\\n\\u00b638 Husband concedes that a fiduciary duty exists between spouses, but he contends that duty ceases upon notice of intent to dissolve the marriage. He cites Applebaum v. Applebaum, 93 Nev. 382, 566 P.2d 85, 87 (1977), in which the court, confronted with the settlement negotiations between divorcing spouses, found that continued shared residence or the absence of animosity did not create a fiduciary duty between the parties. Unlike the present action, the court addressed only the existence of a fiduciary duty in settlement negotiations between the spouses who continue to reside together amicably during dissolution proceedings. This narrow holding may not be extended to cover the question of a continuing fiduciary duty between spouses regarding the transfer of community assets to outside parties before termination of the marriage.\\n\\u00b6 39 More on point, though, are the cases Wife cites. In Smith v. Smith, 124 Idaho 431, 860 P.2d 634, 643 (1993), the Idaho Supreme Court held that the fiduciary duty of spouses does not cease until termination of the marriage. In Smith, the husband had earned approximately $94,000 in fees during the marriage but settled for considerably less than half that amount, thereby depriving the community of an asset. In In re Marriage of Modnick, 33 Cal.3d 897, 191 Cal. Rptr. 629, 663 P.2d 187, 191 (1983), the California Supreme Court recognized the confidential and fiduciary relationship between spouses and found that the duty continues until dissolution and property distribution are complete. In that case, the court found a breach of fiduciary duty where the husband had concealed bank accounts to which he had contributed during the marriage. Though Husband here asserts that no assets were concealed, the effect of removal or concealment of marital assets is the same.\\n\\u00b640 Agreeing with the Idaho and California courts, we hold that a fiduciary relationship between spouses does exist with respect to community assets until the marriage is terminated. Removal of community assets without spousal notice and/or approval can constitute a breach of that duty. Here, Husband removed a community asset, the goodwill of the sole proprietorship, from the marital community without notice to Wife. He gifted that community property asset to an outside party, though the marital community was never compensated for its loss. The trial court had evidence from which it could conclude that Husband breached his fiduciary duty to Wife.\\n\\u00b6 41 The seventh issue is Husband's allegation that Wife did not properly and timely disclose and raise the issues concerning the formation of Cyber in the trial court. Arizona Civil Procedure Rule 26.1 states that information regarding legal theories on which claims are based must be disclosed within 30 days of their discovery and no later than 60 days before trial, unless the court grants more time. Because the court has discretion to consider prejudice to either side from the inclusion or exclusion of the claim as well as the parties' actions and diligence (General Motors Corp. v. Arizona Dep't of Revenue, 189 Ariz. 86, 99, 938 P.2d 481, 494 (App.1996)), we review the court's decision to allow Wife to raise the issue for abuse of discretion only. See id.\\n\\u00b642 The rules regarding disclosure are born out of a policy that the facts and issues to be litigated must be fairly exposed, as should be witnesses and exhibits. Bryan v. Riddel, 178 Ariz. 472, 477, 875 P.2d 131, 136 (1994). The purpose of the disclosure rule is give to the parties \\\"a reasonable opportunity to prepare for trial or settlement \\u2014 n\\u00f3thing more, nothing less\\\" (id. at 476 n. 5, 875 P.2d at 135 n. 5) and to \\\"maximize the likelihood of a decision on the merits.\\\" Allstate Ins. Co. v. O'Toole, 182 Ariz. 284, 287, 896 P.2d 254, 257 (1995). The rule should be applied with common sense to promote that end, rather than being used as a technical weapon by opposing counsel. Id.\\n\\u00b643 Keeping the purpose of Rule 26.1 in mind, we find no abuse of discretion by the trial court. Though the pretrial statement and memorandum raising the issue of fraudulent conveyance would have been late had the trial been held as originally planned, the continuance gave Husband more than 60 days to prepare his response at trial. Indeed, he declined a further continuance offered to him. The purpose of Rule 26.1 was .fulfilled because Husband had adequate notice and time to prepare.\\n\\u00b6 44 The last issue is Husband's request for attorneys' fees pursuant to Rule 21(c), Ariz. Civ.App. R. Wife also requests attorneys' fees under A.R.S. sections 12-341.01(0) and 12-349 for a groundless or bad faith claim made without substantial justification, and under the domestic relations statute, A.R.S. section 25-324.\\n\\u00b645 Husband cites Arizona Civil Appellate Rule 21(c) and Nelson v. Nelson, 164 Ariz. 135, 138, 791 P.2d 661, 664 (App.1990), in support of his claim for attorneys' fees. The Nelson court relied on A.R.S. section 25-324, which gives the court the discretion to award attorneys' fees after considering the financial resources of each party. Husband provides no information about the financial resources of either party nor does he provide evidence supporting his claim for fees. We decline to award Husband's attorneys' fees.\\n\\u00b6 46 Wife contends that she is entitled to attorneys' fees due to Husband's groundless and/or bad faith appeal. A.R.S. \\u00a7 12-341.01(0). Additionally, she contends that a groundless or bad faith claim also subjects Husband to an award of her attorneys' fees under A.R.S. section 12-349(A), as a claim without substantial justification. She also requests attorney's fees on this appeal under A.R.S. section 25-324. Attorneys' fee awards under this statute are based on the financial positions of the parties. The trial court did not find that either parties' financial resources warranted such an award, and neither party contends on appeal that the court's decision was erroneous or that there has been any change in their respective financial positions since then. We do not believe that the appeal warrants attorneys' fees due either to financial need or as a sanction, and accordingly deny this request.\\n\\u00b6 47 For these reasons, the judgment of the superior court is affirmed.\\nGARBARINO and GRANT, JJ., concur.\\n. The remaining two clients Husband previously worked for are no longer in business.\\n. Though the decree language states that the award is fifty percent of Cyber's stock, both parties conceded at oral argument that the award would actually be fifty percent of Husband's Cyber stock.\\n. See also Ward v. Blair, 231 Ky. 96, 21 S.W.2d 123 (1929) (affirming a judgment made subject to future adjudication on the rights of a non-party third party).\\n. Husband does not argue that Ann Covill was indispensable due merely to her status as the putative sole shareholder of Cyber.\\n. Rule 19(b) states:\\nIf a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include:\\nfirst, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties;\\nsecond, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measure, the prejudice can be lessened or avoided;\\nthird, whether a judgment rendered in the person's absence will be adequate;\\nfourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.\\n(Format altered).\\n. During oral argument on appeal, Husband argued that the trial court could not distribute property on which no value had been placed. This argument fails to recognize the court's broad discretion in apportioning community assets as the court sees fit. Neal v. Neal, 116 Ariz. 590, 594, 570 P.2d 758, 762 (1977). We see no absolute need to value an asset if it may otherwise be distributed proportionately between spouses.\\nHusband advanced a related contention during oral argument for the first time. Husband contended that the court did not have the power to award Wife any portion of the stock. Instead, he argued the court was limited to awarding monetary compensation for that portion of the stock determined to be Wife's. Again, this ignores the well-established discretionary power of the court. Id.\\n. The capital of Cyber may include not only the goodwill contributed by Husband, but also the cash contributed by Covill and the goodwill developed by Cyber. However, Husband does not contend that these considerations render the award of one-half of the stock excessive.\\n. Husband actually begins his argument by saying that the nine elements of fraud must be proven by clear and convincing evidence in order to prove fraudulent conveyance.\\nWhile Husband is correct that the nine elements must be proven by clear and convincing evidence to prove fraud (Poley v. Bender, 87 Ariz. 35, 39, 347 P.2d 696, 698 (1959)), he is incorrect in applying the rules of common law fraud to a fraudulent conveyance. Though clear and convincing evidence of fraudulent conveyance is required, proof of the nine elements of common law fraud is not required. Linder v. Lewis, Roca, Scoville & Beauchamp, 85 Ariz. 118, 124, 333 P.2d 286, 290 (1958); In re Marriage of Benge, 151 Ariz. 219, 223, 726 P.2d 1088, 1092 (App.1986); see A.R.S. \\u00a7 44-1004.\\n. Husband also argued for the first time in oral argument before this Court that Wife did not timely disclose that she would ask the court to award actual stock instead of monetary compensation. Husband claims that he was surprised and prejudiced by the court's decision to do so. But again, Husband overlooks the court's discretionary power in community property distribution (Neal, 116 Ariz. at 594, 570 P.2d at 762). We see no abuse of that discretion and no prejudice.\"}"
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+"{\"id\": \"4042461\", \"name\": \"Meyer TURKEN; Kenneth D. Cheuvront; James Iannuzo; Justin Shafer; Zul Gillani; and Kathy Rowe, Plaintiffs/Appellants/Cross-Appellees, v. Phil GORDON, in his official capacity as Mayor of the City of Phoenix; Dave Siebert, in his official capacity as member of the Phoenix City Council and Vice Mayor; Peggy Neely, in her official capacity as member of the Phoenix City Council; Peggy Bilsten, in her official capacity as member of the Phoenix City Council; Tom Simplot, in his official capacity as member of the Phoenix City Council; Claude Mattox, in his official capacity as member of the Phoenix City Council; Greg Stanton, in his official capacity as member of the Phoenix City Council; Michael Johnson, in his official capacity as member of the Phoenix City Council; Frank Fairbanks, in his official capacity as City Manager of the City of Phoenix; and City of Phoenix, Defendants/Appellees, and NPP CityNorth, L.L.C., Intervenor/Defendant-Appellee/Cross-Appellant\", \"name_abbreviation\": \"Turken v. Gordon\", \"decision_date\": \"2008-12-23\", \"docket_number\": \"No. 1 CA-CV 08-0310\", \"first_page\": \"456\", \"last_page\": \"472\", \"citations\": \"220 Ariz. 456\", \"volume\": \"220\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T01:03:46.003815+00:00\", \"provenance\": \"CAP\", \"judges\": \"CONCURRING: LAWRENCE F. WINTHROP, Presiding Judge and PHILIP HALL, Judge.\", \"parties\": \"Meyer TURKEN; Kenneth D. Cheuvront; James Iannuzo; Justin Shafer; Zul Gillani; and Kathy Rowe, Plaintiffs/Appellants/Cross-Appellees, v. Phil GORDON, in his official capacity as Mayor of the City of Phoenix; Dave Siebert, in his official capacity as member of the Phoenix City Council and Vice Mayor; Peggy Neely, in her official capacity as member of the Phoenix City Council; Peggy Bilsten, in her official capacity as member of the Phoenix City Council; Tom Simplot, in his official capacity as member of the Phoenix City Council; Claude Mattox, in his official capacity as member of the Phoenix City Council; Greg Stanton, in his official capacity as member of the Phoenix City Council; Michael Johnson, in his official capacity as member of the Phoenix City Council; Frank Fairbanks, in his official capacity as City Manager of the City of Phoenix; and City of Phoenix, Defendants/Appellees, and NPP CityNorth, L.L.C., Intervenor/Defendant-Appellee/Cross-Appellant.\", \"head_matter\": \"207 P.3d 709\\nMeyer TURKEN; Kenneth D. Cheuvront; James Iannuzo; Justin Shafer; Zul Gillani; and Kathy Rowe, Plaintiffs/Appellants/Cross-Appellees, v. Phil GORDON, in his official capacity as Mayor of the City of Phoenix; Dave Siebert, in his official capacity as member of the Phoenix City Council and Vice Mayor; Peggy Neely, in her official capacity as member of the Phoenix City Council; Peggy Bilsten, in her official capacity as member of the Phoenix City Council; Tom Simplot, in his official capacity as member of the Phoenix City Council; Claude Mattox, in his official capacity as member of the Phoenix City Council; Greg Stanton, in his official capacity as member of the Phoenix City Council; Michael Johnson, in his official capacity as member of the Phoenix City Council; Frank Fairbanks, in his official capacity as City Manager of the City of Phoenix; and City of Phoenix, Defendants/Appellees, and NPP CityNorth, L.L.C., Intervenor/Defendant-Appellee/Cross-Appellant.\\nNo. 1 CA-CV 08-0310.\\nCourt of Appeals of Arizona, Division 1, Department C.\\nDec. 23, 2008.\\nReview Granted June 1, 2009.\\nScharf-Norton Center for Constitutional Litigation, Goldwater Institute by Clint Bol- ick, Carrie Ann Sitren, Phoenix, Attorneys for Plaintiffs/Appellants/Cross-Appellees.\\nFennemore Craig by Timothy Berg, Andrew M. Federhar, Theresa Dwyer-Feder-har, Scott J. Shelley, and Gary Verburg, City Attorney, Phoenix, Attorneys for Defendants/Appellees City of Phoenix.\\nGammage & Burnham, P.L.C. by Lisa T. Hauser, Cameron C. Artigue, Heather J. Boysel, Phoenix, Attorneys for Interve-nor/Defendant-Appellee/Cross-Appellant NPP CityNorth, L.L.C.\\nMohr, Hackett, Pederson, Blakely & Randolph, P.C. by Gregory W. Falls, Phoenix, Attorneys for National Federation of Independent Business Small Business Legal Center Amicus Curiae.\", \"word_count\": \"10059\", \"char_count\": \"62048\", \"text\": \"OPINION\\nIRVINE, Judge.\\n\\u00b6 1 Meyer Turken and several other taxpayers and business owners (\\\"Appellants\\\") appeal from a superior court judgment declaring that an agreement entered into between the City of Phoenix (\\\"City\\\") and NPP CityNorth, L.L.C. (\\\"CityNorth\\\") did not violate several provisions of the Arizona Constitution. CityNorth filed a cross-appeal, arguing that Appellants lacked standing to challenge the City's actions. We find that the payments to CityNorth are prohibited by the Gift Clause of the Arizona Constitution, except for the payments made to set aside 200 \\\"park and ride\\\" parking spaces. Therefore, we reverse the judgment in part, affirm it in part, and remand to the trial court for further proceedings.\\nFACTS AND PROCEDURAL HISTORY\\n\\u00b6 2 CityNorth is a 144-aere, mixed-use development located in the Desert Ridge master-planned community. Desert Ridge was developed on a 99-year ground lease of state trust land near- the Pima Freeway (Highway 101) and 56th Street in the City. The new development is designed to provide a critical mass of employment, shopping, residential, and recreational activities in a single densely developed project that will accommodate the City's growing population. CityNorth informed the City that it could not develop the project as planned without financial support from the City, and requested that the City provide support sufficient to help bring about the project.\\n\\u00b6 3 The City responded by committing to provide funds to the project through what it described as a parking space development and use agreement (\\\"Agreement\\\") with City-North. As stated by the City in its brief: \\\"the City made this commitment to induce the Developer to build the development on a schedule and at a level that is more advantageous to the City than some other, differently configured project.\\\" By doing so, the City hoped to create a revenue stream for City-North that would assure that the project included a large retail component so that the City could capture and maximize retail sales tax revenues. The City was concerned that if the retail component were not built, the upscale retail tenants may have located in Scottsdale, resulting in less sales tax revenue for the City, including taxes on sales to the City's own residents. By the time negotiations between the City and CityNorth were underway, the major infrastructure for the area had already been constructed, so the City could not provide indirect assistance to the project by committing to build public roads, water or sewer lines, or other major off-project infrastructure.\\n\\u00b6 4 In March 2007, the City adopted Ordinance No. S-33743 (\\\"Ordinance\\\"), which made certain findings pursuant to Arizona Revised Statutes (\\\"A.R.S.\\\") section 9-500.11 (2008). The Ordinance also authorized the City to enter into the Agreement with City-North. Tracking the terms of the statute, the Ordinance found that the development project would raise more revenue for the City than the total the City would have to pay, and that in the absence of the Agreement the project would not locate in the City in the same time, place, or manner. Pursuant to the Ordinance and A.R.S. \\u00a7 9-500.11 the City could not enter into the Agreement until the findings of the City were verified by an independent third party. The City hired an economic consulting firm to verify its findings.\\n\\u00b6 5 In particular the Ordinance contained the following terms and conditions:\\nA. Developer shall dedicate a minimum number of spaces in the parking structures to be constructed at the Project for long term use exclusively by the general public at no charge.\\nB. The City's payments under the Agreement will not begin until approximately 1,200,000 square feet of retail space has been completed and the Project is open for business.\\nC. The City's use payments will be calculated based upon market rates for the long-term use of the public parking, wdrich shall be prepaid in annual installments over a period not to exceed 11 years, 3 months or until the City has paid a total of $97,400,000, whichever first occurs.\\nD. The amount of each annual prepayment installment shall equal 50% of the sales tax actually collected by the City from the retail portion of the Project, subject to the foregoing limitation on the total amount of the City's payment obligation and the maximum payment period.\\nE. The Agreement may contain such other terms and conditions deemed necessary or appropriate.\\nPhoenix, Ariz., Ordinance S-33743 (March 5, 2007). The City and CityNorth executed the Agreement consistent with the Ordinance, specifying- that CityNorth will grant the City 3,180 parking spaces within garages, including at least 200 parking spaces to be designated for public transportation or carpool riders. The grant is to last for a period of 45 years and allows the parking spaces to be open for use by the general public. Neither CityNorth nor the City may charge the general public for any use of the parking spaces pursuant to the Agreement. The Agreement specifies that the City's use of the parking-places is nonexclusive, because there may be times when guests, customers, employees, vendors, and suppliers of the shopping center will occupy all of the spaces. The Agreement also provides that CityNorth has the right to change which spaces are designated for City use.\\n\\u00b6 6 The Agreement states that the payments by the City were calculated based upon market rates for the long term use of structured public parking over forty-five years. The payments are to be made annually at an amount equal to fifty percent of the eligible privilege taxes as defined in the Agreement, but cannot exceed the $97,400,000 specified in the Ordinance. Eligible privilege taxes are defined as \\\"the construction transaction privilege taxes and privilege taxes received by the City directly related to the business activities of amusement, commercial property rental, hotels and motels, job printing, publishing, rental of tangible personal property, residential property rental, restaurants and bars, retail sales, and use taxes collected from those improvements, as defined by Chapter 14 of the Code of the City of Phoenix.\\\" The City' estimates that it will collect approximately $1 billion in taxes from businesses at the project over the 99-year term of the lease of state trust land.\\n\\u00b6 7 Appellants are taxpayers and business owners that either do business or reside in the City of Phoenix. Appellants filed suit in superior court seeking to enjoin the City from making the payments provided for in the Ordinance and Agreement, arguing that they violated the Arizona Constitution. Specifically, Appellants argued violations of Article 2, \\u00a7 13 (\\\"Equal Privileges and Immunities Clause\\\"), Article 4, pt. 2, \\u00a7 19 (\\\"Special Law Clause\\\"), and Article 9, \\u00a7 7 (\\\"Gift Clause\\\") of the Arizona Constitution. The superior court rejected each of these challenges. Consequently, the superior court granted summary judgment to the City and CityNorth, and denied the Appellant's motion for summary judgment. In a separate argument, CityNorth asserted that Appellants lacked standing to challenge the Ordinance and Agreement. The trial court did not address the standing issue, apparently considering it unnecessary to do so in light of its rejection of Appellants' substantive arguments.\\n\\u00b6 8 In rejecting Appellants' Gift Clause argument, the superior court determined that the Agreement served various public purposes, including: the creation, retention, and expansion of retail uses and employment in the community; the stimulation of economic development in Phoenix; the genera tion of substantial additional sales tax revenues; the creation of significant, free public parking, which will encourage the use of public transportation; and the development of an urban core that will reduce congestion, traffic, and pollution. The court ruled that \\\"taken individually, any of the stated benefits standing alone would likely qualify as a public purpose. Taken together, they undoubtedly do.\\\" The court went on to conclude that there was adequate consideration in the Agreement between CityNorth and the City. The court found that under the Agreement, the City will pay the developer one dollar for every two dollars that the City receives in sales taxes from the project. The court then concluded that the \\\"consideration being paid by the public can never exceed the value to be received by the public, much less far exceed it.\\\" Because the court determined that the project would produce millions of dollars in sales taxes, the court concluded that there was adequate consideration for the Agreement. Therefore, the court concluded the agreement satisfied the Gift Clause.\\n\\u00b6 9 On appeal, Appellants challenge the trial court's ruling that the Agreement does not violate the Gift Clause. In a cross-appeal, CityNorth reasserts its argument that Appellants have no standing.\\nDISCUSSION\\nI. Standing.\\n1110 CityNorth argues that Appellants lack standing to challenge the constitutionality of the City's actions. CityNorth argues that Appellants fail to show that they will pay any taxes at the CityNorth development, that they will pay higher taxes at their current locations, or that the City will suffer a pecuniary loss from the challenged transaction. Consequently, CityNorth urges that Appellants do not have standing in this case.\\n\\u00b6 11 As a matter of sound judicial policy, courts require persons seeking redress to first establish standing, especially in actions in which constitutional relief is sought against the government. Bennett v. Napoli-tano, 206 Ariz. 520, 524, \\u00b6 16, 81 P.3d 311, 315 (2003). \\\"To gain standing to bring an action, a plaintiff must allege a distinct and palpable injury.\\\" Sears v. Hull, 192 Ariz. 65, 69, \\u00b6 16, 961 P.2d 1013, 1017 (1998). \\\"An allegation of generalized harm that is shared alike by all or a large class of citizens generally is not sufficient to confer standing.\\\" Id.\\n\\u00b6 12 Nevertheless, our supreme court has long-recognized that taxpayers may challenge a legislative act that expends monies for an unconstitutional purpose. Ethington v. Wright, 66 Ariz. 382, 386-87, 189 P.2d 209, 212 (1948); see also Napolitano, 206 Ariz. at 527, \\u00b6 30, 81 P.3d at 318. Because Appellants are Phoenix taxpayers and business owners who are challenging a City act that expends monies for an allegedly unconstitutional purpose, we conclude that they have standing in this instance.\\nII. The Arizona Gift Clause.\\n\\u00b6 13 We begin our analysis with the language of the Gift Clause, which provides:\\nNeither the state, nor any county, city, town, municipality, or other subdivision of the state shall ever give or loan its credit in the aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association, or corporation, or become a subscriber to, or a shareholder in, any company or corporation, or become a joint owner with any person, company, or corporation, except as to such ownerships as may accrue to the state by operation or ' provision of law or as authorized by law solely for investment of the monies in the various funds of the state.\\nAriz. Const, art. 9, \\u00a7 7. The provision was originally adopted as part of a \\\"variety of individual measures [to ensure], that the players in the economy were on a level field, and that government would not unfairly favor particular enterprises or individuals.\\\" John D. Leshy, The Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, 96 (1988). The section has remained unchanged since statehood, except for the addition in 1998 of the final clause authorizing investment of state funds in equity securities. 1999 Ariz. Sess. Laws Vol. 2, Election Results Proposition 102, pp.1928-31 (reflecting the adoption by the voters of Proposition 102 at the November 2, 1998 general election). As recently as 2004, voters rejected an attempt to amend the Gift Clause to allow governmental entities to acquire ownerships and securities in consideration for the license or transfer of technology or intellectual property created or acquired by the universities. See Ariz. Const, art. 9, \\u00a7 7, historical and statutory notes (Supp.2008) (rejecting Proposition 102, based on Laws 2003, H.C.R. 2028).\\n\\u00b6 14 Our supreme court has recognized several purposes of the Gift Clause. First, \\\"to avoid the 'depletion of the public treasury or inflation of the public debt by engagement in nonpublic enterprise.' \\\" Kromko v. Ariz. Bd. of Regents, 149 Ariz. 319, 320, 718 P.2d 478, 479 (1986) (quoting Town of Gila Bend v. Walled Lake Door Co., 107 Ariz. 545, 549, 490 P.2d 551, 555 (1971)). Next, \\\"[pjublic funds are to be expended only for 'public purposes' and cannot be used to foster or promote the purely private or personal interests of any individual.\\\" Id. at 321, 718 P.2d at 480 (emphasis omitted).\\n\\u00b6 15 Early in our history, our supreme court explained the background for the Gift Clause:\\nIt represents the reaction of public opinion to the orgies of extravagant dissipation of public funds by counties, townships, cities, and towns in aid of the construction of railways, canals, and other like undertakings during the half century preceding 1880, and it was designed primarily to prevent the use of public funds raised by general taxation in aid of enterprises apparently devoted to quasi public purposes, but actually engaged in private business.\\nDay v. Buckeye Water Conservation & Drainage Dist., 28 Ariz. 466, 473, 237 P. 636, 638 (1925) (quoting Thaanum v. Bynum Irr. Dist., 72 Mont. 221, 232 P. 528, 530 (1925)); see also State v. Nw. Mut. Ins. Co., 86 Ariz. 50, 53, 340 P.2d 200, 201 (1959) (quoting same language). More recently, the court has stated:\\nThe constitutional prohibition was intended to prevent governmental bodies from depleting the public treasury by giving advantages to special interests or by engaging in non-public enterprises. Of course, either objective may be violated by a transaction even though that transaction has surface indicia of public purpose. The reality of the transaction both in terms of purpose and consideration must be considered. A panoptie view of the facts of each transaction is required.\\nWistuber v. Paradise Valley Unified Sch. Dist., 141 Ariz. 346, 349, 687 P.2d 354, 357 (1984) (citations omitted); see Webster's Third New International Dictionary 1631 (2002) (\\\"panoptic . 1: comprising all in one view: all-seeing . 2: permitting everything to be seen\\\"). Although we are deferential to legislative findings, \\\"we must not merely rubber-stamp the legislature's decision.\\\" Ariz. Ctr. for Law in the Pub. Int. v. Hassell, 172 Ariz. 356, 369, 837 P.2d 158, 171 (App.1991).\\n\\u00b6 16 Our courts have applied the Gift Clause in a variety of cases over the years, none of which is exactly on point with this transaction. Most Gift Clause challenges to governmental actions have been rejected, but enough have been sustained to show that the clause has force. Decisions by this court and our supreme court rejecting Gift Clause challenges to governmental actions fall into several categories. First, the Gift Clause is satisfied when the expenditures improve, assist, or define government operations and administration. Within this category, we include cases upholding pension benefits and compensation for services rendered because of the public purpose of maintaining and recruiting a valuable workforce.\\n\\u00b6 17 Second, expenditures to promote the health and welfare of citizens will not constitute donations or subsidies, \\\"even though the effect is felt by a given class more than by the community at large.\\\" Within this category of promoting health and welfare, a line of cases has upheld transactions in which government has sought to effeetively privatize, in whole or in part, the operation of hospitals.\\n\\u00b6 18 The supreme court has also rejected several challenges to government actions because there was no transfer of public funds or property, and thus no donation or grant under the Gift Clause. Government ownership or control of property has been cited on several occasions as evidence that there is no Gift Clause violation.\\n\\u00b6 19 Not every payment or conveyance has been upheld. In some cases, the courts have found that a transfer of money or property amounted to a donation or grant that did not serve a public purpose. Other cases have found the consideration given in return for the government's funds or property to be inadequate.\\n\\u00b6 20 Our supreme court has recognized that by adopting the Gift Clause the drafters of our constitution \\\"never thought that the state and local governments should be prohibited from dealing with private enterprises, as, for instance, in acquiring goods and services required to furnish and sustain governmental functions.\\\" Nw. Mut., 86 Ariz. at 53, 340 P.2d at 202; see also City of Tombstone v. Macia, 30 Ariz. 218, 224, 245 P. 677, 680 (1926) (\\\"It should be noted that the existence of an element of business profit is not sufficient to determine whether the proposed activity is for a public purpose or not.\\\"). Without such transactions it would be difficult for government to hire employees, buy or lease land, purchase supplies, or engage in countless other everyday transactions. Consequently, government entities are given considerable discretion in carrying out their functions, because strict judicial oversight regarding whether too high a price is being paid for supplies or a better deal could be found somewhere else would constitute a deterrent to entering into any transaction. The Gift Clause is not intended to reach so far.\\n\\u00b6 21 At one point, a decision by this court held that if a transaction served a public purpose, the transaction would not violate the Gift Clause because the public benefits would constitute valid and valuable consideration. Heiner, 21 Ariz.App. at 64, 515 P.2d at 361. Another panel of this court disa greed with this analysis, holding that because a private entity \\\"uses public funds or property for a 'public purpose' is not sufficient, in and of itself, to remove that use from the provisions\\\" of the Gift Clause. Pilot Properties, 22 Ariz.App. at 362, 527 P.2d at 521. Disagreeing with Heiner, Pilot Properties held that an additional factor to be considered was what the public body received in return from the private party. We concluded that if the consideration received is inadequate, a gift or donation may exist. Id. at 363, 527 P.2d at 522.\\n1122 The supreme court resolved the conflict between the two court of appeals decisions in Wistuber, where it specifically adopted the rule expressed in Pilot Properties. Wistuber, 141 Ariz. at 348, 687 P.2d at 356. Wistuber involved a school district's agreement with its local teachers' association in which the district released the association president from teaching duties, but continued to pay a portion of the president's salary. Id. In return, the president agreed to pursue a number of activities and undertake duties that inured to the direct benefit of the district, i.e. attend school board meetings as spokesperson for the teachers, assist teachers in their awareness of procedures, assist in the process of grievances, appoint teachers to district committees, confer with district administrators on areas of concern, etc. Id. The court found that the services performed by the president on behalf of the association aided the district in performing its obligations, and therefore served a public purpose. Id. at 349-50, 687 P.2d at 357-58.\\n\\u00b6 23 The court also held, however, that merely finding a valid public purpose for an expenditure is not enough to satisfy the Gift Clause. Courts must also look to the adequacy of the \\\"public benefit to be obtained from the private entity as consideration for the payment or conveyance from a public body.\\\" Id. at 349, 687 P.2d at 357. \\\"[I]n reviewing such questions, the courts must not be overly technical and must give appropriate deference to the findings of the governmental body.\\\" Id. The court found that the substantial duties imposed on the association president were not disproportionate to the modest sums paid by the district, so the challengers failed to meet their burden of proof. Id. at 350, 687 P.2d at 358. Consequently, the court concluded that the Gift Clause was not violated \\\"because (1) the agreement serves a public purpose and (2) there is neither a donation nor subsidy to a private association.\\\" Id. at 348, 687 P.2d at 356.\\n\\u00b6 24 Thus, applying Wistuber, transactions that directly benefit a private party may be permitted so long as the \\\"public benefit to be obtained from the private entity as consideration for the payment or conveyance from a public body\\\" is not \\\"far exceeded by the consideration being paid by the public.\\\" Id. at 349, 687 P.2d at 357. Simple examples of such transactions include purchases of supplies, land, or services that will be used by the government to carry out a public purpose. If the value of what is given by the government does not far exceed the value of what is given back by the other party to the contract, the payment will not be an improper donation.\\n\\u00b6 25 Quoting this court's decision in Maricopa County v. State, Appellees argue that Wistuber established a two-prong test for reviewing transactions under the Gift Clause: \\\"[A] use of public money or property will not violate the Gift Clause if, taking a 'panoptic' view of the transaction in question, a court concludes that (1) the use is for a public purpose, and (2) the value of the public money or property is not so much greater than the value of the benefit received by the public that the exchange of the one for the other is disproportionate.\\\" 187 Ariz. at 279-80, 928 P.2d at 703-04, citing Wistuber, 141 Ariz. at 349, 687 P.2d at 357. Appellants agree with this test, but add, citing Kromko and pre-Wistuber cases, that the Gift Clause must be applied to prevent public funds from being used \\\"to foster or promote the purely private or personal interests of any individual.\\\" Kromko 149 Ariz. at 321, 718 P.2d at 480. The City and CityNorth disagree, arguing that Wistuber established a definitive and exclusive test that makes any earlier cases or other factors irrelevant.\\n\\u00b6 26 Initially, we reject the argument that we should not look to pre-Wistuber cases for guidance in interpreting the Gift Clause. We do not read Wistuber as representing a change in the supreme court's Gift Clause jurisprudence, but simply a clarification of the factors to be considered. Consequently, until expressly overruled, the supreme court's other opinions interpreting the Gift Clause are highly instructive. Moreover, we cannot ignore Kromko, which was decided after Wistuber. In Kromko, the supreme court cited several pre-Wistuber eases as authority for its analysis. Given that the supreme court itself continues to look to its previous decisions for guidance, we see no reason not to do the same.\\n\\u00b6 27 This leads us to the two-prong test the parties assert was established in Wistu-ber. We recognize that this court has described Wistuber as setting out this test. Nevertheless, upon careful re-reading of the opinion in Wistuber, and the supreme court's later opinion in Kromko, we conclude that the supreme court itself did not adopt that test. As noted above, in Wistuber the supreme court based its ultimate holding that there was no Gift Clause violation on its conclusion that (1) there was a public purpose and (2) there was neither a donation nor subsidy to a private party. It used virtually the same language in Kromko to describe its holding. In each ease, the supreme court analyzed the presence or absence of consideration as a factor in determining that there was no donation or subsidy, but nothing in either opinion indicates an intention to limit the relevant factors to public purpose and consideration.\\n\\u00b6 28 In Wistuber, the supreme court determined that there was no unconstitutional donation or subsidy because it found the school district received adequate consideration for the small amount it paid to the teachers' association president. In that context, consideration was the deciding factor. We do not, however, read the Wistuber discussion of consideration as defining the exclusive way to determine if a payment is a donation or subsidy. Specifically, we see no intent to preclude considering whether the payments to a private party unduly promote private interests. In Wistuber, there was simply no need to analyze whether the payments promoted private interests because it was apparent that they did not. The payments made to the president of the teachers' association allowed the president to engage in school-related activities instead of being in a classroom. There was no evidence that either the president or the association was engaged in business activities unrelated to the school district. Indeed, the entire purpose of the association was to relate to the district on behalf of the teachers. Under these circumstances, public purpose and consideration were the deciding factors.\\n\\u00b6 29 The supreme court's analysis in Kromko shows that in a different case public purpose and consideration are not the exclusive factors; the extent to which private interests are implicated must also be considered. Kromko addressed the legality of a lease between the Arizona Board of Regents (\\\"Board\\\") and a nonprofit corporation formed by the Board to take over operations of the University of Arizona Hospital. Kromko, 149 Ariz. 319, 718 P.2d at 478. After discussing the purposes of the Gift Clause, the court found that the operation of a hospital by a nonprofit corporation served a public purpose, citing a statute that specifically allowed such a lease. Id. at 321, 718 P.2d at 480. The court then analyzed whether any \\\"private or personal interests of any individual\\\" would be served by the operation of the hospital. Id. The court considered the corporate structure of the corporation, the fact that it was required to obtain Board approval for many of its operations, and its obligation to report to the Board. Id. The court explained:\\nMost importantly, however, no earnings of the nonprofit corporation, other than rea sonable compensation for services, shall be distributed to the corporation's members, directors or officers. Moreover, upon dissolution or liquidation, all net assets of the nonprofit corporation shall revert to the Board or its successors.\\nIn other words, UMCC is an independent corporation, free to operate in a competitive market without the normal constraints usually placed on the state. Nevertheless, its operations are still subject to the control and supervision of public officials. Hence, we believe the fear of private gain or exploitation of public funds envisioned by the drafters of our constitution is ab-sent____\\nId. In effect, the court reviewed the means chosen to carry out the public purpose and found they did not violate the Gift Clause because no \\\"private or personal interests of any individual\\\" would be served.\\n\\u00b6 30 Only after reaching this conclusion did the court in Kromko move on to analyze whether there was adequate consideration, and in this discussion it cited Wistuber for the first time. The court found that the consideration was adequate because of a statutory presumption that the property was transferred for fair value and the evidence showed that the Board received substantial monetary and some nonpecuniary benefits. Id. at 322, 718 P.2d at 481. In light of all these factors, the court concluded that \\\"the agreement (1) serves a statutorily recognized public purpose, and (2) constitutes neither a donation nor a subsidy to a private corporation,\\\" so there was no violation of the Gift Clause. Id.\\n\\u00b6 31 In light of Wistuber and Kromko, we believe that public purpose and consideration are factors to be considered in applying the Gift Clause, but we agree with Appellants that we must also consider whether any private or personal interests are being served by the transaction. Taking all of these factors into account not only firmly anchors our analysis in the actual holdings of Wistuber and Kromko, but it is consistent with the language of the Gift Clause, which specifically prohibits \\\"any donation or grant, by subsidy or otherwise, to any individual, association, or corporation.\\\" Considering each of these factors is also consistent with the purposes of the Gift Clause expressed by our supreme court, which include not only avoiding depletion of the public treasury, but also avoiding the promotion of purely private interests of a private entity. Thus, it is appropriate for Gift Clause purposes to look at not only the purpose of the expenditure and what the public body receives in return, but how the purpose is carried out.\\n\\u00b6 32 Therefore, we conclude that Wistuber did not adopt the definitive two-prong test upon which the parties seek to rely. To the extent that some of our cases interpreted Wistuber as creating a test that measured only public purpose and consideration, those interpretations were based on a misreading of the supreme court's opinions.\\n\\u00b6 33 Thus, as directed by the supreme court, we must consider the realities of the transaction to determine if the means chosen by a public body to achieve a public purpose violate the Gift Clause by unduly pi'omoting private interests. We do so by considering several questions about the disputed transaction. Is money paid or property transferred to a private enterprise? What is the direct object of the public payment, not just its indirect effects? Are the claimed benefits merely the result of private activities, or do they directly result from the government's actions? Does the public expenditure purchase property that will be owned or controlled by the government? Do the funds provide a public service, or employ staff or agents who provide such a service? Do the payments pay a private party to engage in private business? The answers to these questions will inform our analysis regarding whether any private or personal interests of any individual are being served, which, as shown by our supreme court in Kromko, is a question that we must address in addition to public purpose and consideration.\\n\\u00b6 34 With this general framework in mind, we now turn to the specifics of the Agreement. Appellees argue at least five public purposes are served by the Agreement between the City and CityNorth;\\n\\u2022 Creation, retention, and expansion of retail uses and employment in the community;\\n\\u2022 Development of an urban core to reduce congestion, traffic, and pollution;\\n\\u2022 Stimulation of economic development in the City;\\n\\u2022 Generation of substantial additional sales tax revenues; and\\n\\u2022 Creation of significant free public parking, including a park and ride facility to encourage the use of public transportation.\\n\\u00b6 35 The City asserts that under the Agreement it will never pay more than the 2007 market rate for the parking. Moreover, the City's obligation to make any payments is contingent on the construction of at least eighty-five percent of the 1.2 million square feet of retail space at CityNorth and parking garages with at least 3,180 spaces for public use. Only after the required construction is complete will the City begin making payments equal to fifty percent of the sales taxes actually collected by the City from the City-North project. The City will make such payments for no more than eleven years and three months, or until the total payments reach $97.4 million, whichever occurs first.\\n\\u00b6 36 Appellants assert that the Agreement does not serve a public purpose for Gift Clause purposes. They argue the payments are simply a massive subsidy given to a private business owner to construct a private shopping center, as well as a parking garage that will serve retail businesses and their patrons. They acknowledge that the development will provide benefits to the community, but argue that those benefits cannot justify a grant or donation that is prohibited by the Gift Clause.\\n\\u00b6 37 Appellees argue that determining whether the Agreement serves a public purpose is simple because a state statute specifically authorizes the Agreement. Appellees cite A.R.S. \\u00a7 9-500.11, which was enacted in 2005 to authorize retail development sales tax agreements that allowed tax revenues to be paid to developers. Citing several court decisions that relied on statutes to find a proper public purpose, they argue compliance with the statute should equate to serving a public purpose. While we recognize that furthering public policies contained in statutes is relevant to Gift Clause analysis, we do not find it conclusive here. First, legislative policy regarding tax agreements is not consistent. In 2007, the legislature enacted A.R.S. \\u00a7 42-6010 (Supp.2008), which substantially limited the use of such agreements. Although not applicable to the Agreement at issue here, that statute makes it difficult to discern a strong statutory policy applicable to this Agreement. Second, a statute cannot authorize a violation of the Gift Clause. As our supreme court has stated: \\\"The legislature cannot by legislation destroy the constitutional limits on its authority.\\\" San Carlos Apache Tribe v. Superior Court, 193 Ariz. 195, 215, \\u00b6 52, 972 P.2d 179, 199 (1999). Under these circumstances, compliance with A.R.S. \\u00a7 9-500.11 does not establish compliance with the Gift Clause.\\n\\u00b6 38 Therefore, we first consider the Appellees' assertion that obtaining the use of parking spaces satisfies the Gift Clause by creating significant, free public parking, including a park and ride facility to encourage the use of public transportation. Appellants concede that the 200 parking spaces set aside for park and ride users are for a valid public purpose. These spaces will be used by passengers of a City sponsored public transit system. We agree that this use qualifies as a valid public purpose, and we find no improper promotion of private interests with respect to those spaces.\\n\\u00b6 39 Appellants do not seriously dispute that the market rate assumed for purposes of calculating the payments to CityNorth reflects fair value for the 200 spaces, so there appears to be adequate consideration for what the City is paying. Therefore, we conclude that Appellants have failed to meet their burden of proof that the Gift Clause has been violated by the Agreement's provisions for payments relating to the 200 park and ride spaces. Consequently, the City can make payments to CityNorth equal to the value of the 200 spaces set aside for park and ride use. See Agreement \\u00b6 49(b) (providing for reduction in number of City Spaces made available if City not obligated to pay the full amount specified in the Agreement).\\n\\u00b6 40 This leaves us with the remaining 2,980 parking spaces that the City asserts it has obtained for free use by the public. The Agreement gives the City the right to use the spaces and to make them available to the public on a nonexclusive basis. Use is limited to passenger vehicles and the City acknowledges that CityNorth's customers may from time-to-time occupy all the spaces. Neither the City nor CityNorth can charge the public for the use of the spaces. The Developer also retains the right to relocate any City space, prohibit overnight use, prohibit vehicles other than passenger vehicles, and permit the use of earpool spaces by the general public except on weekdays from 5 a.m. to 7 p.m.\\n\\u00b6 41 Looking at the realities of this transaction, we conclude that the payments by the City are not intended to obtain parking spaces for direct use by the City. The City is not seeking parking for its own employees, or for persons doing business with the City. The parking will be used by others engaging in their own private activities. Consequently, the transaction does not fall into the category of ordinary business transactions in which our sole concern is that the value given does not far exceed the value obtained in return. Therefore, we must look beyond the \\\"surface indicia of public purpose.\\\" Wistu-ber, 141 Ariz. at 349, 687 P.2d at 357.\\n\\u00b642 Appellees argue that providing free public parking is a direct public purpose, but under these circumstances we cannot agree. Simply asserting that payments are made to obtain \\\"public parking\\\" does not mean the payments serve a public purpose. We must look at who will actually use the parking spaces and for what reasons. In this case, the \\\"public\\\" that will use the spaces are actually the private customers of CityNorth, who will be parking their cars so that they can do business with CityNorth's retail tenants. There will be no direct benefit to the City from its payments for parking, yet those payments will plainly \\\"foster or promote the purely private or personal interests\\\" of the customers. We reach the same conclusion if we view the payments as assisting City-North's efforts to attract customers or tenants. The payments directly promote City-North's private purposes, with only indirect benefits to the City. Under these circumstances, the parking provisions of the Agreement unduly promote private interests and violate the Gift Clause.\\n\\u00b6 43 Appellees argue, however, that there is no Gift Clause violation because Appellants have conceded that there would be no violation if the City itself owned the parking garage. They argue that the form of ownership of the parking should not matter, so this concession should be controlling. The trial court agreed, concluding that ownership should not be conclusive because the City had the power to lease property under A.R.S. \\u00a7 9-241 (2008). We disagree. First, the Agreement is not a lease. The City obtains no exclusive rights to the parking spaces and it is apparent that all parties intend the spaces to be used by CityNorth customers.\\n\\u00b6 44 Moreover, ownership of pz'opezty by the public is highly significant for Gift Clause purposes. The Gift Clause specifically prohibits a \\\"donation or grant.\\\" This language applies to transactions in which the public conveys money or property to someone, not transactions whez-e nothing is transfen-ed. Thei-e is no gift of the original purchase price or eonstnzetion costs if the result is public ownership, because the public body still owns what it paid for. As discussed in Pilot Properties, allowing the use of public property without adequate consideration may raise its own Gift Clause issues, but that is a separate question from whether original construction costs constitute a donation or subsidy. Here, unlike Walled Lake Door Co., Kromko, or Pilot Properties, where the public maintained ownership or contz'ol of its propez'ty, the City has not puz-chased or z'etained an ownership interest or control over any parking stz'ucture. It has simply made payments to pzwide a revenue stz-eam for CityNorth to pay for its parking structures.\\n\\u00b6 45 We now addz'ess the other listed puz'poses. These purposes are related, so we consider them togethez-. These puz-poses include pz*omoting econoznic development, retail uses, employment, an urban core, an incz-eased tax base, and zelated benefits. We agree that these are laudable goals that the City znay puz-sue. Nevertheless, each is an indirect benefit to the public, not a direct z'esult of the City's payments to CityNoz'th. Therefore, we must again examine them in moz-e detail than we would an ordinaz-y business transaction in which the City directly obtains something in z-eturn for its payments. We begin by z-eiterating that the City will not own the shopping center, nor will it be used to provide City services. The payments will fund the eonstz'uction of a venue for pz'ivate business activities, and the benefits to the public will be filtered through the opez-ation and success of those pz'ivate activities.\\n\\u00b6 46 As previously discussed, the Gift Clause was intended to \\\"protect against the 'extravagant dissipation of public funds' by government in subsidizing private enterprises such as railroad and canal building in the guise of 'public interest.' \\\" Kotterman, 193 Ariz. at 288, \\u00b6 52, 972 P.2d at 621. No doubt the public officials who sought to spend public funds to ensure the construction of railroads and similar developments also were sincerely motivated by goals such as promoting economic development and enhancing the tax base. Here, Appellees make the same arguments to justify providing $97.4 million of public funds to a private party to build a shopping center. Under these circumstances, we think these payments are exactly what the Gift Clause was intended to prohibit. To find that the Agreement in this case satisfies the Gift Clause would be the equivalent of finding that subsidizing railroads and canals for the purpose of economic development was constitutional. Considering the well-established purposes of the Gift Clause, we cannot read it so broadly.\\n\\u00b6 47 Appellees implicitly argue that the public benefits flowing from the Agreement are so substantial that we should assume the Gift Clause is satisfied. We reject such an assumption. Just as Wistuber held that consideration cannot be assumed from a public purpose, we conclude that compliance with the Gift Clause cannot be assumed because the indirect public benefits may be substantial. Promoting economic development, increased employment, an urban core, and an enhanced tax base are legitimate purposes for the City to pursue, but we must also examine the means by which the City seeks to further those purposes. Even if the potential benefits are great, they are not sufficient to overcome the prohibition in the Gift Clause against donations or subsidies to private persons.\\n\\u00b6 48 As a final point regarding the Gift Clause, we recognize that the City has structured the Agreement in a way that prevents it from losing money. Its payment obligations are contingent on the project being built and generating tax revenue, and cannot exceed fifty percent of what the City receives. We see parallels between this arrangement and cases in which revenue bonds were challenged as violating the debt limitations of our constitution. As we discussed in Long v. Napolitano, 203 Ariz. 247, 260-66, 53 P.3d 172, 185-91 (App.2002), the Arizona Constitution significantly limits the state from incurring debts that become general obligations of the government. Nevertheless, obligations may be incurred if the source of funds for repayment is limited to a special fund, which may include taxes directly related to the project funded by the debt. Id. at 264, \\u00b6 62-65, 53 P.3d at 189. In this case, the City has essentially created a special fund from the tax revenues derived from the project, and the payments to CityNorth may only be made from that fund.\\n\\u00b6 49 If the purposes of the debt limitations and the Gift Clause were the same, we might be persuaded that this structure satisfies the Gift Clause, just as the special fund structure selves to satisfy the debt limitation. The arrangement plainly addresses the purpose of the Gift Clause relating to preventing the depletion of the public treasury or inflation of the public debt. Kromko, 149 Ariz. at 320, 718 P.2d at 479. As we read the Agreement, neither of these results can happen because the payments are limited to fifty percent of receipts and will not begin until the shopping center is operational.\\n\\u00b650 Nevertheless, as we have discussed, the Gift Clause requires that we also examine whether any \\\"private or personal interests of any individual\\\" are seived by a transaction. Id. at 321, 718 P.2d at 480. This analysis ensures that \\\"[p]ublic funds are to be expended only for 'public purposes' and cannot be used to foster or promote the purely private or personal interests of any individual.\\\" Id. This purpose is not met merely because the City's payments are limited to half of the amount it collects. We must also consider how the funds are used. As discussed above, the funds go directly to CityNorth for private purposes. The Agree ment is well-structured to prevent a loss to the City. Nevertheless, it does not satisfy the Gift Clause merely because there cannot be such a loss.\\n\\u00b6 51 In summary, we conclude that the Agreement violates the Gift Clause of the Arizona Constitution, except insofar as it provides for payments in exchange for park and ride parking spaces. We affirm the trial court's judgment that the Agreement is valid with respect to the park and ride spaces, reverse the judgment finding the payments under the Agreement to be valid in all other respects, and remand to the trial court to enter judgment for the Appellants.\\n\\u00b6 52 The City requests attorneys' fees under A.R.S. \\u00a7 12-341.01 (2003). The City is not the prevailing party, so we deny its request. Appellants request attorneys' fees pursuant to AR.S. \\u00a7 12-348 (2003) and the private attorney general doctrine. None of the subsections of \\u00a7 12-348 appear to apply to an action against a city under these circumstances, so we deny fees under that statute. In the exercise of our discretion, we grant Appellants reasonable attorneys' fees under the private attorney general doctrine, and their costs under A.R.S. \\u00a7 12-341 (2003), upon their compliance with the procedures outlined in Rule 21, Ariz.R.Civ.App.P.\\nCONCLUSION\\n\\u00b6 53 We affirm the judgment in part, reverse it in part, and remand to the trial court for further actions consistent with this opinion.\\nCONCURRING: LAWRENCE F. WINTHROP, Presiding Judge and PHILIP HALL, Judge.\\n. Appellants also challenge the trial court's rulings regarding the Equal Privileges and Immunity Clause and Special Law Clause of the Arizona Constitution. Because we find the Gift Clause issue dispositive, we do not address those arguments.\\n. See generally, Nicholas J. Wallwork and Alice S. Wallwork, Protecting Public Funds: A History of Enforcement of the Arizona Constitution's Prohibition Against Improper Private Benefit from Public Funds, 25 Ariz. St. L.J. 349 (1993); David E. Pinsky, State Constitutional Limitations on Public Industrial Financing: An Historical and Economic Approach, 111 U. Pa. L.Rev. 265 (1963). We have also examined the records of the constitutional convention, but the recorded discussions dealt only with the procedures associated with adopting the provision, not its substance. See John S. Goff, The Records of the Arizona Constitutional Convention of 1910, 86, 485-89 (1990).\\n. See Wistuber, 141 Ariz. at 348-50, 687 P.2d at 356-58 (holding that a collective bargaining agreement between a school district and teachers' association, which released the association president from the duty to teach, was valid because the services performed by the president aided the district in performing its obligations); Schrey v. Allison Steel Mfg. Co., 75 Ariz. 282, 288, 255 P.2d 604, 608 (1953) (upholding five percent preference granted to contractors who had paid county and state taxes for two years immediately preceding making a bid); City of Glendale v. White, 67 Ariz. 231, 235, 238, 240, 194 P.2d 435, 438, 440, 441 (1948) (holding that payment of dues for a municipal league was for a public purpose when the league fostered the adoption of sound methods of municipal government, administration, and conduct of municipal affairs among other things); Udall v. State Loan Bd., 35 Ariz. 1, 5-12, 273 P. 721, 723-25 (1929) (permitting the state to discharge a moral obligation against it based on equity and justice, even though the claim was not legally enforceable); Fairfield v. Huntington, 23 Ariz. 528, 531-41, 205 P. 814, 815-18 (1922) (same); see also State v. Heinze, 196 Ariz. 126, 129-30, \\u00b6 12-15, 993 P.2d 1090, 1093-94 (App.1999) (finding that there was a reasonable argument that an employee committed wrongful acts within the scope of his employment; expenditure of public funds to defend him was not prohibited); Maricopa County v. State, 187 Ariz. 275, 279-81, 928 P.2d 699, 703-05 (App.1996) (finding that a modification to procedures for claiming agricultural tax classification for prior years served the public purpose of protecting farmland from disproportionate lax bills).\\n. See Rochlin v. State, 112 Ariz. 171, 177, 540 P.2d 643, 649 (1975) (holding that pension plans are not gifts, but part of the contemplated compensation for employee services); Yeazell v. Copins, 98 Ariz. 109, 113, 402 P.2d 541, 544 (1965) (holding that a pension is not a gratuity or gift when the pension provision is part of a statute that contemplated the pension as part of the compensation for services rendered); McClead v. Pima County, 174 Ariz. 348, 358-59, 849 P.2d 1378, 1388-89 (App.1992) (holding that post-retirement benefit increases serves several public purposes, i.e. to protect the economic security of retired public servants and serve as a recruiting inducement for prospective employees); Fund Manager, Pub. Safety Pers. Ret. Sys. v. Corbin, 161 Ariz. 348, 363, 778 P.2d 1244, 1259 (App.1988) (holding that amendment to statute exempting contracts for goods and sendees retroactively from requirements of procurement code did not constitute making of donation), aff'd 161 Ariz. 364, 778 P.2d 1260 (1989); Burke v. Ariz. State Ret. Sys., 152 Ariz. 323, 326, 732 P.2d 214, 217 (App.1986) (holding that pension plans for public employees are for a public benefit).\\n. Humphrey v. City of Phoenix, 55 Ariz. 374, 387, 102 P.2d 82, 87 (1940) (holding that slum clearance projects are adopted for self-protection against crime and disease, and that money spent for these purposes is for the public good and welfare); see also Indus. Dev. Authority of the County of Pinal v. Nelson, 109 Ariz. 368, 374, 509 P.2d 705, 711 (1973) (holding that revenue bonds sold to fund pollution control facilities were for the public purpose of protecting the health of citizens by preventing or limiting air, water, and other forms of pollution); Walled Lake Door Co., 107 Ariz. at 550, 490 P.2d at 556 (holding that supplying water for fire suppression preserved and protected lives and property and was a public purpose); City of Phoenix v. Superior Court, 65 Ariz. 139, 144, 175 P.2d 811, 814 (1946) (holding that the erection of temporary housing for war veterans and their families through expenditure of municipal funds was spent to prevent crime and disease and was for a public good and general welfare).\\n. Kromko, 149 Ariz. at 321, 718 P.2d at 480 (holding that leasing property to a non-profit hospital for $10 a year serves the public good and general welfare and is therefore a public purpose); S. Side Dist. Hosp. v. Hartman, 62 Ariz. 67, 71-72, 153 P.2d 537, 538-39 (1944) (upholding city's lease of property to nonprofit corporation to operate a hospital for a nominal rent); see also Heiner v. City of Mesa, 21 Ariz. App. 58, 64, 515 P.2d 355, 361 (App.1973) (holding that transfer of real estate on which hospital was located was for the public good and general welfare; rationale confined to its facts in Wistu-ber).\\n. Kotterman v. Killian, 193 Ariz. 273, 288, \\u00b6 52, 972 P.2d 606, 621 (1999) (holding income tax credit is not a gift); State v. Roseberry, 37 Ariz. 78, 88, 289 P. 515, 519 (1930) (finding garnishment of state employee would not involve public funds).\\n. Kromko, 149 Ariz. at 322, 718 P.2d at 481; Walled Lake Door Co., 107 Ariz. at 549, 490 P.2d at 555.\\n. See Graham County v. Dowell, 50 Ariz. 221, 226, 71 P.2d 1019, 1021 (1937) (holding that expenditure of .stale money on a road that was never established as a stale or county highway amounted to an expenditure on a private right of way and therefore a gift); Puterbaugh v. Gila County, 45 Ariz. 557, 564, 46 P.2d 1064, 1067 (1935) (holding that statute, which relieved persons of reimbursement payments they were legally obligated to make to the slate, amounted to a gift); Duke v. Yavapai County, 24 Ariz. 567, 573, 211 P. 862, 864 (1923) (holding that money which had been paid by the purchaser of certain properly at a tax sale, in reliance on the statement of certain officials of the county that litle to the property purchased was good, created no legal or moral obligation on the county to return the money paid when the title was found to be no good); Rowlands v. State Loan Bd. of Ariz., 24 Ariz. 116, 123, 207 P. 359, 361 (1922) (holding that a statute, which relieved mortgagors of duty to pay government for no other reason than the inability of the mortgagor to pay, was a gift in violation of the Gift Clause).\\n. Hassell, 172 Ariz. at 370, 837 P.2d at 172 (holding that statute, which relinquished state's interest in riverbed lands claimed by state under public trust doctrine, was a gift without adequate consideration); City of Tempe v. Pilot Properties, Inc., 22 Ariz.App. 356, 527 P.2d 515 (1974) (holding a valid public purpose exists when a city transfers land for the construction of a baseball stadium that will become city property, but finding an issue of fact existed as to ihe adequacy of the consideration).\\n. See Valley Nat. Bank of Phoenix v. First Nat. Bank of Holbrook, 83 Ariz. 286, 296, 320 P.2d 689, 695 (1958) (rejecting the argument that bank deposits by a government are prohibited extensions of credit under the Gift Clause because in a strict legal sense a deposit of public funds constitutes a loan and indirectly aids and benefits the depository).\\n. The Arizona Constitution expressly includes the public purpose doctrine as a general prerequisite to any expenditure of tax revenues. Ariz. Const., art. 9, \\u00a7 1 (staling that \\\"all taxes . shall be levied and collected for public purposes only\\\"). In applying this provision soon after statehood, our supreme court found it necessary to ask: \\\"What is, and what is not, a public purpose?\\\" Macia, 30 Ariz. at 222, 245 P. at 679. After citing numerous examples, the court found itself unable to give an exact answer.\\nThe question of what is a public purpose is a changing question, changing to suit industrial inventions and developments and to meet new social conditions. Law is not a fixed and rigid system but develops, a living thing, as the industrial and social elements which form it make their impelling growth.\\nId. at 226, 245 P. at 680; see also Wistuber, 141 Ariz. at 348, 687 P.2d at 356 (\\\"|T]he term 'public purpose' is incapable of exact definition and changes to meet new developments and conditions of times.\\\"); White, 67 Ariz. at 236, 194 P.2d at 439 (noting that because the term public pur pose is incapable of exact definition, it is better \\\"elucidated by examples.\\\").\\n. In Kotterman, the supreme court rejected the argument that a tax credit was an unconstitutional gift. Citing Wistuber, its analysis stated in part: \\\"We have upheld giving when the state action served a public purpose and adequate consideration was provided for the public benefit conferred.\\\" 193 Ariz. at 288, \\u00b6 51, 972 P.2d at 621. In light of the more complete analysis in Wistuber and Kromko, we do not read this as expressing an intention by the supreme court to foreclose analysis of whether a transaction unduly promotes private interests.\\n. The prohibitions in the Gift Clause against loaning of credit or the owning of stock in a private company also limit how the government goes about its business, not simply whether the ultimate purpose sought to be accomplished is appropriate or a transaction results in significant benefits to the public.\\n. This does not mean, however, that the analysis or results in those cases were incorrect. Just as in Wistuber, considering public purpose and consideration may have been all that was necessary to decide the case. Nevertheless, in cases in which payments are to be made to private persons lor private ends, we take a broader view. In such cases we must also consider whether any \\\"private or personal interests of any individual\\\" are being served by a transaction.\\n. Interpretations of other states' versions of gift clauses, and the more general requirement that public funds only be spent to serve a public purpose, have varied significantly depending upon the specific language at issue and its history. See generally Thaddeus L. Pitney, Loans, and Takings, and Buildings \\u2014 Oh My!: A Necessary Difference Between Public Purpose and Public Use in Economic Development, 56 Syracuse L.Rev. 321 (2006); Richard Briffault, The Disfavored Constitution: State Fiscal Limits and State Constitutional Law, 34 Rutgers L.J. 907 (2003); Nick Beermann, Legal Mechanisms of Public-Private Partnerships: Promoting Economic Development or Benefiting Corporate Welfare?, 23 Seattle U.L.Rev. 175 (1999); Dale F. Rubin, Public Purpose in the Northwest: A Sinkhole of Judicial Interpretation \\u2014 The Case for Alternatives in the Deliveiy of Public Services and the Granting of Subsidies, 32 Idaho L.Rev. 417 (1996); David D. Marlin, Washington State Constitutional Limitations on Gifting of Funds to Private Enterprise: A Need for Reform, 20 Seattle U.L.Rev. 199 (1996); Dale F. Rubin, The Public Pays, the Corporation Profits: The Emasculation of the Public Purpose Doctrine and a Not-for-Profit Solution, 28 U. Rich. L.Rev. 1311 (1994); Dale F. Rubin, Constitutional Aid Limitation Provisions and the Public Purpose Doctrine, 12 St. Louis U. Pub.L.Rev. 143 (1993); see also Encouragement or promotion of indusliy not in the nature of public utility, carried on by private enterprise, as public purpose for which tax may be imposed or public money appropriated, 112 A.L.R. 571 (1938 and supplements).\\n. We also note that in 2006 the voters of Arizona adopted legislation limiting the use of eminent domain to situations where the properly is taken for \\\"public use,\\\" and defining \\\"public use\\\" to exclude \\\"the public benefits of economic development, including an increase in tax base, tax revenues, employment or general economic health.\\\" A.R.S. \\u00a7 12-1136(5)(b) (Supp.2008), as adopted by Proposition 207 (November 7, 2006). The constitutional standards regarding eminent domain differ from those applicable to the Gift Clause so this legislation is not directly applicable here, but Proposition 207 shows that there is no consensus regarding the public policy surrounding the use of public resources to encourage economic development or increase the tax base. See also Bailey v. Myers, 206 Ariz. 224, 227-31, \\u00b6 10-26, 76 P.3d 898, 901-05 (App.2003) (explaining factors to consider in defining public use).\\n. Both the City and CityNorth cite Bishop v. City of Burlington, 246 Wis.2d 879, 631 N.W.2d 656 (App.2001), for the proposition that providing parking is a public purpose. We find Bishop distinguishable. The case involved a transfer of a parking lot to a merchant as part of a downtown redevelopment plan. The court found the transaction also included the \\\"significant and direct benefit\\\" to the city of a conveyance of a separate piece of property as consideration, and the predominant goal of the transfer was redeveloping a deteriorating section of downtown. Moreover, no constitutional gift clause was at issue; the court applied the more general public purpose doctrine. Because our Gift Clause has its own history and purposes, cases interpreting only the more general public purpose requirement must be relied upon with caution. Finally, even the court in Bishop recognized that more than a simple assertion of public purpose is required: \\\"We are mindful that in reviewing the public purpose of a conveyance, the benefits must be direct and not remote and safeguards must be in place to ensure that the benefit is accomplished.\\\" Id. at 664.\\n. Public ownership also provides a degree of accountability. Records regarding the revenues and expenses associated with a publicly-owned garage would be available for public inspection and evaluation.\\n. We recognize that the payments will be made after most of the development is built, so City-North will not use the funds to pay for construe tion. Nevertheless, because it is clear that the payments under the Agreement are intended to fund the construction of part of the development, we do not find the timing of the payments to be controlling.\\n. Because our decision is based on who receives the funds and what they are used for, we in no way address tax incentives that may directly serve a public purpose. See e.g., A.R.S. \\u00a7 42-6010(D)(3), (4), (5), (6) (defining lax incentives for redevelopment, reimbursement for public infrastructure, preserving historical buildings, and environmental cleanup).\"}"
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+"{\"id\": \"4045918\", \"name\": \"The STATE of Arizona, Appellee, v. Phillip Jaime ARAGON, Appellant\", \"name_abbreviation\": \"State v. Aragon\", \"decision_date\": \"2009-05-26\", \"docket_number\": \"No. 2 CA-CR 2008-0149\", \"first_page\": \"88\", \"last_page\": \"92\", \"citations\": \"221 Ariz. 88\", \"volume\": \"221\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T23:45:52.498849+00:00\", \"provenance\": \"CAP\", \"judges\": \"CONCURRING: PETER J. ECKERSTROM, Presiding Judge and J. WILLIAM BRAMMER, JR., Judge.\", \"parties\": \"The STATE of Arizona, Appellee, v. Phillip Jaime ARAGON, Appellant.\", \"head_matter\": \"210 P.3d 1259\\nThe STATE of Arizona, Appellee, v. Phillip Jaime ARAGON, Appellant.\\nNo. 2 CA-CR 2008-0149.\\nCourt of Appeals of Arizona, Division 2, Department B.\\nMay 26, 2009.\\nTerry Goddard, Arizona Attorney General By Kent E. Cattani and Kathryn A. Dams-tra, Tucson, Attorneys for Appellee.\\nRobert J. Hirsh, Pima County Public Defender, By Kristine Maish, Tucson, Attorneys for Appellant.\", \"word_count\": \"1914\", \"char_count\": \"11657\", \"text\": \"V\\u00c1SQUEZ, Judge.\\n\\u00b6 1 After a jury trial, Phillip Aragon was convicted of two counts of aggravated driving under the influence of an intoxicant (DUI) while his driver's license was suspended, and one count of aggravated DUI with a minor present. The trial court sentenced him to enhanced, substantially mitigated prison terms of six years for each of the first two counts, and an enhanced, mitigated term of three years for the third count, all to be served concurrently. On appeal, Aragon argues the court abused its discretion in denying his motion for a continuance to substitute his privately retained counsel for appointed counsel. For the reasons discussed below, we reverse Aragon's convictions and sentences and remand for a new trial.\\nFactual and Procedural Background\\n\\u00b6 2 Because this case involves a purely legal question, we include only those facts necessary for an understanding of the issue presented. A Pima County grand jury indicted Aragon on the above charges and trial was set for March 11, 2008. On March 5, Aragon's appointed counsel moved for a continuance so that Mark Bockel, a private attorney Aragon wished to retain, could \\\"file a Notice of Appearance, and have enough time to prepare for trial.\\\" The same day, the court issued a ruling denying the motion \\\"[bjecause the trial deadline in this case pursuant to Rule 8[, Ariz. R.Crim. P.,] expires March 17, and because defendant has expressed his wish to hire different counsel less than a week before trial.\\\"\\n\\u00b6 3 Bockel appeared at the status conference held two days later and asked the trial court if it was \\\"going to entertain [him] substituting in.\\\" The court again declined to continue the trial, citing both the short time before trial and the Rule 8 deadline. In an apparent reference to Rule 6.3(e), Ariz. R.Crim. P., the court further asserted that \\\"the criminal rules state that if substitute counsel is to come in, they have to be prepared to go to trial on the date set.\\\" The court also engaged in a lengthy colloquy with Aragon and appointed counsel, apparently aimed at establishing that appointed counsel was \\\"a very experienced criminal lawyer\\\" who was \\\"fully prepared to go to trial\\\" and would thus provide Aragon with adequate representation. Nonetheless, Aragon continued to express his wish to substitute Bockel. Aragon identified \\\"a communication issue\\\" with appointed counsel and explained that, although he had been in touch with Bockel since his arrest, he had not asked for Bockel to be substituted earlier because he \\\"didn't have funds to hire him.\\\" The trial proceeded with appointed counsel, and Aragon was convicted and sentenced as noted above. This appeal followed.\\nDiscussion\\n\\u00b6 4 Aragon argues the trial court violated his right to counsel of choice by denying his request for a continuance to substitute Bockel for appointed counsel. \\\"[A]n indigent criminal defendant possesses rights under the Sixth Amendment [of the United States Constitution] and Article 2, Section 24 [of the Arizona Constitution], to choose representation by non-publicly funded private counsel....\\\" Robinson v. Hotham, 211 Ariz. 165, \\u00b6 16, 118 P.3d 1129, 1133 (App.2005); see United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). \\\"We review the court's interpretation of a constitutional right de novo as an issue of law.\\\" Hotham, 211 Ariz. 165, \\u00b6 9, 118 P.3d at 1132.\\n\\u00b6 5 A trial court has \\\"wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar.\\\" Gonzalez-Lopez, 548 U.S. at 152, 126 S.Ct. 2557 (citation omitted). But an \\\"unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' \\\" violates a defendant's right to counsel of choice. See Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). \\\"Whether an accused's constitutional rights are violated by the denial of a request for a continuance [to substitute private counsel of the defendant's choice] depends on the circumstances present in the particular case.\\\" State v. Hein, 138 Ariz. 360, 369, 674 P.2d 1358, 1367 (1983). On review, we consider such factors as\\nwhether other continuances were granted; whether the defendant had other competent counsel prepared to try the ease; the convenience or inconvenience to the litigants, counsel, witnesses, and the court; the length of the requested delay; the complexity of the case; and whether the requested delay was for legitimate reasons or was merely dilatory.\\nId. Thus, our supreme court has upheld decisions by trial courts to compel defendants to proceed with appointed counsel where trial had already been postponed twice and a continuance was requested only after the jury had been empaneled, State v. Miller, 111 Ariz. 321, 322, 529 P.2d 220, 221 (1974), and where a codefendant was \\\"ready and 'anxious' to go to trial\\\" and \\\"a great burden\\\" would have been placed on out-of-state witnesses by any delay, Hein, 138 Ariz. at 369, 674 P.2d at 1367.\\n\\u00b6 6 Here, it is undisputed that Aragon had legitimate reasons for his request and had neither sought nor been granted any prior continuances. The state does not argue the case was particularly complex or dispute Aragon's assertion that \\\"all of the witnesses . were law enforcement personnel . or law enforcement-related professionals, who routinely juggle their calendars to accommodate court appearances.\\\" Nor does this case involve a victim anxious for a resolution. And, although appointed counsel was apparently competent and prepared to try the ease, this alone could not justify the court's denial of Aragon's request for a continuance to allow him to be represented by Boekel. See Gonzalez-Lopez, 548 U.S. at 148, 126 S.Ct. 2557. (\\\"Deprivation of the right is 'complete' when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received.\\\").\\n\\u00b6 7 The trial court erred in relying on Rule 8, a rule intended to guarantee defendants a speedy trial, as a basis to deny Aragon a continuance so he could be represented by his counsel of choice. See State v. Ferguson, 120 Ariz. 345, 347, 586 P.2d 190, 192 (1978) (\\\"The pimpose of Rule 8 is to insure that a criminal defendant is not forgotten while the orderly administration of justice swirls around him on all sides but leaving him untouched.\\\"). Rule 8.4(a) expressly excludes \\\"[djelays occasioned by or on behalf of the defendant\\\" from \\\"the computation of the time limits\\\" under the rule. Thus, the court's concern that any such continuance would violate \\\"the law ['s] require[ment] that [Aragon's] trial occur within so many days\\\" was misplaced. Moreover, there is no authority to support the court's apparent belief that a first request for a continuance made five or six days before trial is inherently unreasonable.\\n\\u00b6 8 To the extent the court also based its decision on appointed counsel's failure to file a motion to withdraw pursuant to Rule 6.3(c), we note that this rule, like Rule 8, is primarily intended to protect the rights of defendants. See Riley, Hoggatt & Suagee, P.C. v. Riley, 165 Ariz. 138, 140, 796 P.2d 940, 942 (1990) (\\\"[I]n the absence of any showing of prejudice to the defendant or to the judicial process, a motion to withdraw [made prior to trial] should be granted.\\\"). Furthermore, the situation here did not involve counsel's seeking to withdraw of his own volition but, rather, the defendant himself seeking to substitute retained counsel. See State v. Paris-Sheldon, 214 Ariz. 500, \\u00b6 16, 154 P.3d 1046, 1052 (App.2007) (distinguishing the two circumstances). In any event, we will not \\\"elevat[e a] technical requirement above [Aragon\\u00e9s right to counsel of his choice.\\\" See State v. Coghill, 216 Ariz. 578, \\u00b6 44, 169 P.3d 942, 953 (App.2007).\\n\\u00b6 9 We thus conclude the trial court's denial of a continuance here constituted an \\\"unreasoning and arbitrary\\\" adherence to its schedule without due regard for Aragon's legitimate request to exercise his right to the counsel of his choice. See Morris, 461 U.S. at 11-12, 103 S.Ct. 1610. Aragon did not expressly invoke the Sixth Amendment in requesting a continuance for the purpose of substituting counsel. But because \\\"erroneous deprivation of the right to counsel of choice, 'with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error'\\\" and thus cannot be waived, we must reverse Ara-gon's convictions and sentences. See Gonzalez-Lopez, 548 U.S. at 150, 126 S.Ct. 2557, quoting Sullivan v. Louisiana, 508 U.S. 275, 282, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).\\nDisposition\\n\\u00b6 10 For the reasons stated, we reverse Aragon's convictions and sentences and remand for a new trial.\\nCONCURRING: PETER J. ECKERSTROM, Presiding Judge and J. WILLIAM BRAMMER, JR., Judge.\\n. Aragon was also charged with child abuse, but that charge was dismissed before trial on the state's motion.\\n. We note that Hein differs from the present case to the extent the defendant there sought to be represented by a particular attorney from the law firm he had retained. 138 Ariz. at 370, 674 P.2d at 1368. As our supreme court noted, \\\"[E]m-ployment of one member of a law firm is employment of the firm, unless there is a special understanding to the contrary.\\\" Id.\\n. Bockel did not specify the length of the delay necessary for him to prepare for trial, and the court dismissed his request for a continuance without questioning him on this point. But, to the extent the state argues this supports the court's decision to deny a continuance, we note persuasive authority suggests that, \\\"[w]hen a motion for a continuance . implicates a defendant's Sixth Amendment right to counsel,\\\" the onus is on the court to create a record of its reasons for the denial. United States v. Garrett, 179 F.3d 1143, 1147 (9th Cir.1999).\\n. We acknowledge that in Gonzalez-Lopez, the government conceded the defendant's right to counsel of choice had been erroneously denied; thus, the Court did not address that issue. However, in the present case, a finding that there was no error based on the fact Aragon had other competent counsel prepared to try the case would be inconsistent with Gonzalez-Lopez's holding that \\\"it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation\\\" when the right has been wrongfully denied. See Gonzalez-Lopez, 548 U.S. at 148, 126 S.Ct. 2557.\\n. Thus, the trial court was given no assistance either in identifying the substantial nature of the right involved or in creating a record to support its denial of a continuance pursuant to Hein, 138 Ariz. at 369, 674 P.2d at 1367. We do not suggest that the denial of a defendant's first motion for a continuance, requested to substitute counsel of choice, would necessarily violate his Sixth Amendment right in every case. However, here, we cannot find otherwise absent any record indicating how the delay would impinge on \\\" 'the efficient and effective administration of justice.' \\\" See id. at 368, 674 P.2d at 1366, quoting United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1214 (3rd Cir.1969).\"}"
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+"{\"id\": \"4052373\", \"name\": \"Maria A. MINJARES, a single woman, Plaintiff-Appellant, v. STATE of Arizona, Defendant-Appellee\", \"name_abbreviation\": \"Minjares v. State\", \"decision_date\": \"2009-10-29\", \"docket_number\": \"No. 1 CA-CV 08-0713\", \"first_page\": \"54\", \"last_page\": \"64\", \"citations\": \"223 Ariz. 54\", \"volume\": \"223\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T17:52:26.796234+00:00\", \"provenance\": \"CAP\", \"judges\": \"CONCURRING: MARGARET H. DOWNIE, Judge.\", \"parties\": \"Maria A. MINJARES, a single woman, Plaintiff-Appellant, v. STATE of Arizona, Defendant-Appellee.\", \"head_matter\": \"219 P.3d 264\\nMaria A. MINJARES, a single woman, Plaintiff-Appellant, v. STATE of Arizona, Defendant-Appellee.\\nNo. 1 CA-CV 08-0713.\\nCourt of Appeals of Arizona, Division 1, Department B.\\nOct. 29, 2009.\\nTerry Goddard, Attorney General and Fred M. Zeder, Assistant Attorney General, Phoenix, Attorneys for Appellee.\\nTerry H. Pillinger, P.C. by Terry H. Pillinger and Richard A. Cruz, P.C., by Richard A. Cruz, Phoenix, Attorneys for Appellant.\", \"word_count\": \"6362\", \"char_count\": \"37403\", \"text\": \"OPINION\\nWEISBERG, Judge.\\n\\u00b6 1 Maria A Minjares brought a tort action against the State of Arizona, the City of Kingman, and others. After the jury found in Minjares' favor, the State unsuccessfully appealed from the superior court's judgment dismissing Kingman from the action. Following that appeal and at the State's request, the superior court corrected its previously entered judgment in Minjares' favor by reducing the interest rate payable during the pendency of the appeal. Minjares now appeals from that corrected judgment and asserts that the interest rate could not be altered once this court had issued its appellate decision. She also contends that Arizona Revised Statutes (\\\"A.R.S.\\\") section 41-622(F) (2004), which the State argues requires this judgment to accrue interest at a reduced rate during the pendency of the appeal, does not apply under these circumstances. However, for reasons that follow, we affirm the superi- or court's order.\\nBACKGROUND\\n\\u00b62 In July 2003, Minjares was severely injured in a collision with another vehicle at an intersection in Kingman, Arizona. Because the State maintained control of that intersection, Minjares filed suit against the State as well as against Mohave County, Kingman, and the driver of the other vehicle. Mohave County was dismissed from the action before trial began. During trial, the superior court both granted Kingman's motion for judgment as a matter of law because Kingman had not exercised control over the intersection and dismissed the action against the City with prejudice. Also during trial, the defendant driver and Minjares settled their dispute. The jury's verdict, filed on September 11, 2006, found the State thirty-three percent at fault for the accident and found Minjares' damages to be $3.1 million. On October 19, 2006, the court entered a signed judgment ordering the State to pay Minjares $1,023,000.00 \\\"with interest at the rate of 10% from September 11, 2006[per] annum until this judgment is paid in full together with taxable costs.\\\"\\n\\u00b6 3 On November 11, 2006, the State filed a notice of appeal to challenge the judgment in favor of Kingman but did not raise any issue related to the interest rate portion of the judgment. This court affirmed the judgment in Kingman's favor on February 14, 2008 and issued our mandate on April 21, 2008.\\n\\u00b6 4 On April 15, 2008, shortly before issuance of our mandate, and again shortly afterward, the State filed motions asking the superior court to correct the judgment. It asked the court to specify that the ten percent interest rate applied from the date judgment had been entered until the date on which the State had filed its notice of appeal and commenced again after remand from the Court of Appeals. But, it asserted that during the pendency of the appeal, A.R.S. \\u00a7 41-622(F) required that the interest rate be reduced to the average yield offered by United States treasury bills. The State cited Arizona Rule of Civil Procedure (\\\"Rule\\\") 60(a) and (b) as authority to correct an erroneous judgment. It also noted two errors in the signed judgment: one awarding interest from the date of the jury's verdict instead of from the date of entry of the judgment, and a second awarding interest at ten percent even after the State filed its notice of appeal.\\n\\u00b6 5 In response, Minjares argued that the court lacked authority to alter the judgment following the mandate of this court. She also contended that the State had waived any error by failing to object to or to challenge the form of judgment and by failing to raise the issue in the appeal. In addition, Minjares asserted that A.R.S. \\u00a7 41-622(F) was an accounting statute that merely set the interest rate a borrowing government department paid to reimburse the risk management fund when the fund has been exhausted, but that it did not exempt the State from the usual interest rate provided by A.R.S. \\u00a7 44-1201(A). Finally, Minjares contended that Rule 60(c)(1) was the proper basis for the State's motion, rather than Rule 60(a),(b)(2), or (c)(6), but that more than six months had elapsed, thus eliminating the possibility of Rule 60(c)(1) relief.\\n\\u00b6 6 While the State's motions were pending, on May 8, 2008, Minjares accepted the State's principal payment of $1,047,132.12, which included her costs but no interest on the judgment.\\n\\u00b6 7 In ruling on the motions, the superior court rejected Minjares' waiver argument because when it had entered judgment, no one knew whether the State would appeal or how long an appeal might take, and yet until the court signed the judgment, the State could not appeal at all. The court also reasoned that although the State had not raised the issue in its appeal, no one knew when the appellate court mandate would issue, and in any event, the mandate would not specify an interest rate. Thus, the court concluded that \\u00a7 41-622(F) required the procedure the State had utilized to correct the judgment.\\n\\u00b6 8 The court also observed that until 1993, AR.S. \\u00a7 41-622(F) had provided that if the funds in the risk management revolving fund were exhausted and the legislature was not in session, \\\"any final judgment [would] accrue interest at the legal rate and . be payable upon appropriation in the next succeeding [legislative] session.\\\" The statute assumed that any judgment would be paid immediately and would accrue interest only if the legislature were not in session, but it did not envision that the State might delay payment due to the filing of an appeal.\\n\\u00b6 9 After revision in 1993, however, the statute deleted the words, \\\"at the legal rate,\\\" and expressly anticipated delay in payment due to an appeal. Moreover, the House bill that revised the statute was entitled \\\"State Government-Risk Management-Interest on Judgments.\\\" Thus, the interest rate applied to the \\\"judgment amount\\\" and not, as Minjares had suggested, to \\\"borrowing to cover the judgment amount.\\\" In addition, neither version of the statute implied that the treasury bill-based interest rate was a rate that applied only to intergovernmental transfers. Thus, the treasury bill-based rate of interest was to be paid to a successful plaintiff during the time a ease was on appeal. Finally, because the statute did not specify otherwise, the court concluded that the regular statutory rate of ten percent applied before the filing of the notice of appeal and after the return of the appellate mandate.\\n\\u00b6 10 The court entered a corrected judgment in August 2008 awarding ten percent interest from October 19, 2006 until November 11, 2006; 4.1495 percent interest from November 11, 2006 until April 21, 2008 when our mandate issued; and thereafter ten percent interest until paid.\\n\\u00b6 11 Minjares timely appealed. She contends that res judicata and waiver prevented the superior court from altering the interest rate on a final judgment that this court has affirmed on appeal. She also asserts that A.R.S. \\u00a7 41-622(F) does not apply to the interest rate on a judgment in her favor when the State is the appealing party.\\nDISCUSSION\\nImpact of Res Judicata\\n\\u00b6 12 Whether res judicata applies in particular circumstances is a question of law that we review de novo. See Campbell v. SZL Props., Ltd., 204 Ariz. 221, 223, \\u00b6 8, 62 P.3d 966, 968 (App.2003); Better Homes Constr., Inc. v. Goldwater, 203 Ariz. 295, 298, \\u00b6 10, 53 P.3d 1139, 1142 (App.2002).\\n\\u00b6 13 Minjares argues that once this court issued a mandate affirming the superior court judgment, the judgment became final and should have been regarded as binding or res judicata by the superior court. For support, she cites Tovrea v. Superior Court, 101 Ariz. 295, 297, 419 P.2d 79, 81 (1966). That case held that a trial court could not ignore the supreme court's mandate, which had awarded costs to the prevailing party, but was \\\"absolutely bound by the decision and mandate.\\\" Id. Neither our appellate decision nor our mandate, however, addressed the question of the proper interest rate or specified a rate. Our decision merely affirmed dismissal of Kingman as a party, leaving the State as the only government entity liable to Minjares. Unlike the court in Tovrea, the superior court did not violate or contradict any specific directions in our mandate when it reduced the interest rate on the judgment for a specific time period.\\n\\u00b6 14 In contending that res judicata bars alteration of the judgment, Minjares does not indicate whether she is referring to either issue or claim preclusion. Issue preclusion prevents a party from relitigating an issue that was actually litigated in a prior proceeding if the parties had a full opportunity and motive to litigate it, resolution of the issue was essential to the decision, a final resolution on the merits resulted, and there is common identity of the parties. Campbell, 204 Ariz. at 223, \\u00b6 9, 62 P.3d at 968. The issue of the correct rate of interest on Minjares' judgment was never litigated in her suit against the various defendants, so we cannot agree that the State attempted to relitigate that issue when it sought to amend the judgment.\\n\\u00b6 15 Under the doctrine of claim preclusion, a final judgment binds the parties and their privies \\\"when a former judgment on the merits was rendered by a court of competent jurisdiction and the matter now in issue between the same parties or their privities was, or might have been determined in the former action. \\\" Hall v. Lalli, 194 Ariz. 54, 57, \\u00b6 7, 977 P.2d 776, 779 (1999) (emphasis added). However, for the reasons discussed in \\u00b6 18-19 below, there have been no prior proceedings between these parties that resulted in a final judgment and in which the issue of the proper application of A.R.S. \\u00a7 41-622(F) either was or could have been litigated. Therefore, neither issue nor claim preclusion barred the superior court from considering the State's request for Rule 60 relief or deprived the court of the authority to act on the State's motion.\\nApplication of Waiver\\n\\u00b6 16 Minjares additionally contends that the State waived the argument that it was entitled to a reduction in the interest rate by failing to raise that issue either before the superior court's entry of final judgment or in its appeal. She also asserts that she was left with a \\\"false impression\\\" that the judgment would accrue interest at ten percent during the appeal and that her misunderstanding caused unspecified prejudice during the appeal.\\n\\u00b6 17 Waiver generally requires a finding of intentional relinquishment of a known right or of conduct that would warrant such an inference. Am. Cont'l Life Ins. Co. v. Ranier Constr. Co., 125 Ariz. 53, 55, 607 P.2d 372, 374 (1980). A claim of waiver based on conduct, i.e., the State's failure to challenge the interest rate stated in the judgment, must include evidence of acts inconsistent with the intent to assert a right. Id. \\\"A clear showing of intent to waive is required for waiver of rights.\\\" Goglia v. Bodnar, 156 Ariz. 12, 19, 749 P.2d 921, 928 (App.1987). Waiver also generally is a question of fact, and in this case, the superior court's finding binds this court unless we conclude that the finding is clearly errone ous. Id.; see also Chaney Bldg. Co. v. Sunnyside Sch. Dist. No. 12, 147 Ariz. 270, 273, 709 P.2d 904, 907 (App.1985); Concannon v. Yewell, 16 Ariz.App. 320, 321, 493 P.2d 122, 123 (1972).\\n\\u00b6 18 The State concedes that at the moment the superior court entered judgment, AR.S. \\u00a7 44-1201(A) governed the judgment and set ten percent as the proper interest rate. It argues, however, that it could not have waived its right to a reduced amount of interest because that right did not come into existence until the State filed its notice of appeal. It also contends that when it filed the notice of appeal, the interest rate on the judgment merely became potentially subject to change because if the State had won the appeal, the judgment might have been vacated resulting in no interest. Moreover, the State asserts that although it lost the appeal, no one could calculate the precise interest rate to apply to the judgment during the appellate process until this court issued its mandate on a specific date. Thus, the State contends that it moved to correct the judgment \\\"as soon as it was feasible to do so.\\\" The State finally notes that it could not have sought correction of the judgment as part of its appeal because that would have constituted an attempt to raise an issue not previously litigated in the trial court.\\n\\u00b6 19 We do not decide whether, if we had been the fact finder, we would have found no waiver by the State. In this case, we cannot say that the superior court committed clear error in finding that the State had not knowingly and intentionally waived its right to request a reduced interest rate during the pendency of the appeal. Of course, the State was not even potentially entitled to a reduction until it filed the notice of appeal. And although the State might have been better advised to have alerted Minjares and the trial court to the possibility that it would request correction of the judgment to reflect the treasury bill-based interest rate pursuant to A.R.S. \\u00a7 41-622(F), Minjares cites no statute or rule that requires the State to provide advance notice of that possibility. Here, the State acted promptly after we issued our appellate decision by requesting a modified interest rate once the time period of the appeal had become finite and the rate could be calculated.\\nThe Superior Court's Authority to Grant Rule 60 Relief\\n\\u00b6 20 Minjares additionally argues that Rule 60 does not allow the State to seek an amended judgment after an appeal has ended and the mandate has issued and thus that the superior court abused its discretion by granting relief. See Birt v. Birt, 208 Ariz. 546, 549, \\u00b6 9, 96 P.3d 544, 547 (App.2004) (we review denial of Rule 60(c) relief for abuse of discretion). Nevertheless, the State points out that our supreme court has approved the grant of post-judgment relief by a trial court even after that court had entered a judgment as directed by an appellate court mandate. US W. Commc'ns v. Ariz. Dep't of Revenue, 199 Ariz. 101, 104, \\u00b6 11, 14 P.3d 292, 295 (2000). US West overturned the prior rule that one seeking post-judgment relief under Rule 60 first had to obtain permission from the appellate court and a recall of the mandate. In US West, the plaintiff cited Rule 60(e)(1), (c)(2), and (c)(6) as grounds for its request. Id. at 102, \\u00b6 3, 14 P.3d at 293.\\n\\u00b6 21 Here, the State initially relied upon Rule 60(a) (clerical mistakes in judgments arising from oversight or omission) and 60(b)(2) (correction of a mistake, misealeula tion or misrecital of a sum of money). In its reply to its renewed motion for relief and to Minj ares' argument that its motion was untimely, however, the State argued that the court could treat the motion as one brought under Rule 60(c)(6) and find extraordinary circumstances of hardship or injustice.\\n\\u00b6 22 In light of US West, the superior court did not err in concluding that it had authority to consider the State's request for Rule 60 relief even after this court had reached a final decision and issued our mandate. As our supreme court recognized, trial courts are quite capable of resolving questions posed by Rule 60 motions. Id. at 104, \\u00b6 8, 14 P.3d at 295. Accordingly, the superi- or court did not lack authority to reconsider the previously signed judgment simply because this court had affirmed that judgment on grounds unrelated to the applicable interest rate.\\n\\u00b6 23 Rule 60(a) allows the court to correct clerical mistakes arising from oversight or omission. When the court initially entered judgment, however, ten percent interest as stated in the judgment was not a mistake. The judgment became potentially incorrect, under the State's theory, when it filed the notice of appeal; the judgment actually became incorrect once the State lost the appeal and this court issued a mandate affirming the judgment, concluding the appellate process.\\n\\u00b624 We have held that \\\"[t]he power to correct clerical error does not extend to the changing of a judgment, order, or decree which was entered as the court intended.\\\" Ace Automotive Prods., Inc. v. Van Duyne, 156 Ariz. 140, 142-43, 750 P.2d 898, 900-01 (App.1987). In Ace Automotive, the trial court intended to enter judgment on a promissory note in an amount that the defendants later challenged as incorrect. On appeal, we held that the error \\\"was not clerical but judgmental, and [that] defendants' failure to object at trial preelude[d] correction on appeal.\\\" Id. at 143, 750 P.2d at 901.\\n\\u00b6 25 Similarly, we have held that Rule 60(a) \\\"authorizes the correction of 'clerical' errors \\u2014 to show what the court actually decided but did not correctly represent in the written judgment; it may not be used to correct 'judicial errors' \\u2014 to supply something that the court could have decided, but did not.\\\" Egan-Ryan Mech. Co. v. Cardon Meadows Dev. Corp., 169 Ariz. 161, 166, 818 P.2d 146, 151 (App.1990). There, omission of language in a judgment disposing of two counts of a counterclaim was not a \\\"clerical error,\\\" and thus the trial court could not amend its prior judgment. Id.\\n\\u00b6 26 Here, the judgment specified that interest at the rate of ten percent would accrue from September 11, 2006 until paid in full. The State does not assert that the judgment failed to represent what the court actually decided or what the parties intended. The omission of a proviso that, if the State appealed, the interest rate would be modified to the average interest of treasury bills during the pendency of the appeal, was not a clerical error. Instead, after it lost the appeal, the State asked the superior court to reach a legal conclusion that A.R.S. \\u00a7 41-622(F) applied to this case and required revision of the interest rate. This does not constitute correction of a clerical error and is not authorized by Rule 60(a).\\n\\u00b6 27 Rule 60(b)(2) provides that if \\\"there is a mistake, miscalculation or misrecital of a sum of money . and there is among the records of the action a verdict or instrument of writing whereby such judgment may be safely corrected, the court shall on application and after notice, correct the judgment accordingly.\\\" The State has never alleged that among the records of this action was a pre-judgment writing that showed a basis for correcting the judgment. Thus, Rule 60(b)(2) does not allow the relief granted here.\\n\\u00b628 Finally, we turn to Rule 60(c)(6) because we will affirm the superior court's ruling if it was correct for any reason. Ruesga v. Kindred Nursing Ctrs., L.L.C., 215 Ariz. 589, 597, \\u00b6 27, 161 P.3d 1253, 1261 (App. 2007). Rule 60(c)(6) states, \\\"[o]n motion and upon such terms as are just the court may relieve a party . from a final judgment . for . (6) any other reason justifying relief from the operation of judgment.\\\" To obtain such relief, the reason \\\"must not be one of the reasons set forth in the five preceding clauses [of Rule 60(e) and] . the 'other reason' advanced must be one that justifies relief.\\\" Webb v. Erickson, 134 Ariz. 182, 186, 655 P.2d 6, 10 (1982) (citations omitted). Furthermore, this Rule authorizes relief only when the interest in according finality of judgments is outweighed by \\\"extraordinary circumstances of hardship or injustice.\\\" Id. at 187, 655 P.2d at 11. See also Panzino v. City of Phoenix, 196 Ariz. 442, 445, \\u00b6 6, 999 P.2d 198, 201 (2000).\\n\\u00b629 We have observed that \\\"the precise scope of Rule 60(c) relief defies neat encapsulation, . [but] is primarily intended to allow relief from judgments that, although perhaps legally faultless, are unjust because of extraordinary circumstances that cannot be remedied by legal review.\\\" Tippit v. Lahr, 132 Ariz. 406, 408-09, 646 P.2d 291, 293-94 (App.1982). Here, the judgment was correct when entered but became legally incorrect if, as the State asserted, the appeal caused the judgment to become subject to a different interest rate and required calculation based on the precise time period consumed by the appellate process.\\n\\u00b6 30 Although not directly on point, Birt is instructive. There, a divorce decree equitably divided the parties' debts and assets. 208 Ariz. at 548, \\u00b6 2, 96 P.3d at 546. When the time for appeal had passed, the husband filed a petition in bankruptcy and obtained discharge of several debts incurred during the marriage and for which the wife also was responsible. Id. at \\u00b65. The wife then moved to set aside the decree because the discharge potentially would render her solely liable for the community debts. Id. at 549, \\u00b6 7, 96 P.3d at 547. We concluded that Rule 60(c)(6) authorized relief to rectify the resulting but unanticipated post-decree inequity. Id. at 556, \\u00b6 37, 96 P.3d at 554.\\n\\u00b6 31 As in Birt, when the superior court entered judgment, the court and the parties apparently had not considered the possibility that subsequent events would significantly alter the propriety of that judgment. Yet, the husband in Birt had a right to file a petition in bankruptcy, and his success or failure in obtaining discharge could not be known until the bankruptcy court ruled on his petition. Likewise, the State had a right to appeal from this judgment, and its success or failure could not be known until we issued our ruling.\\n\\u00b6 32 Therefore, we find no abuse of discretion in the superior court's grant of relief, although we conclude that Rule 60(c)(6) is the appropriate basis for its action. In doing so, we reject Minjares' contention that the State's motion was untimely. Rule 60(c)(6) requires only that a party file a motion within a \\\"reasonable\\\" time of discovery of a basis for relief. Once we filed our opinion and the mandate issued, the appeal ended and its duration became finite. The State moved to correct the judgment within two months of our decision and a week before issuance of the mandate. Its request was timely.\\nThe Statutory Scheme\\n\\u00b6 33 We now turn to the question of whether AR.S. \\u00a7 41-622(F) applies to this case. It is well established that when parties have not agreed otherwise, a statute may control the interest rate applied to a judgment resolving their dispute. McBride v. Superior Court (Maricopa County), 130 Ariz. 193, 194, 635 P.2d 178, 179 (1981). Whether the legislature intended this statute to override \\u00a7 44-1201(A), which generally governs interest on a final judgment, presents a question of law subject to de novo review. See Jenkins v. Hale, 218 Ariz. 561, 563, \\u00b6 10, 190 P.3d 175, 177 (2008) (statutory interpretation is a legal question).\\n\\u00b6 34 Normally, we regard a statute's plain language as the best indicator of its intended meaning, and we attempt to give effect to that meaning. Mathews ex rel. Mathews v. Life Care Ctrs. Of Am., Inc., 217 Ariz. 606, 608, \\u00b6 6, 177 P.3d 867, 869 (App. 2008) (citations omitted). If statutory language is unclear, we may consider not only \\\"the statutory scheme as a whole . [but] its context, subject matter, historical background, effects and consequences, and spirit and purpose.\\\" Id. We also may consider a title to aid in interpretation. State v. Barnett, 142 Ariz. 592, 597, 691 P.2d 683, 688 (1984).\\n\\u00b6 35 In moving to correct the judgment, the State asserted that \\u00a7 41-622(F) applied and that, because the judgment would be paid out of the risk management revolving fund, during the pendency of an appeal interest on such a judgment would accrue based on the average yield of United States' treasury bills. To better understand the interplay of the statutes at issue here, we consider each one in context.\\n\\u00b6 36 Title 44 governs \\\"Trade and Commerce,\\\" and chapter 9 is entitled \\\"Trade Practices Generally.\\\" Article 1 is entitled \\\"Miscellaneous Provisions Relating to Loans.\\\" The first statute, AR.S. \\u00a7 44-1201(A), states: \\\"Interest on any loan, indebtedness, judgment or other obligation shall be at the rate of ten per cent per annum, unless a different rate is contracted for in writing, in which event any rate of interest may be agreed to.\\\" The statute appears to have broad application but is silent regarding the impact of the appellate process on the stated interest rate.\\n\\u00b6 37 Title 41 deals with State Government. Chapter 3.1 covers \\\"Risk Management,\\\" and Article 1 of the chapter is entitled, \\\"Insurance; Uninsured Losses.\\\" Section 41-621(A) (2004) relates to insurance, and subsections (1), (3), and (7) direct the department of administration (\\\"DOA\\\") to obtain insurance against loss on such things as state-owned buildings; departments, agencies, officers, agents, and employees; and the \\\"[djesign and construction of . roads.\\\" Subsection E provides that DOA \\\"shall provide for state self-insurance for losses arising out of state property, liability or workers' compensation claims prescribed by subsection A\\\" Subsection M generally requires the Attorney General to defend the State and its departments, and subsection N allows \\\"elaim[s] for liability damages\\\" to be settled under various circumstances by the director of DOA, the attorney general, and the joint legislative budget committee.\\n\\u00b6 38 Section 41-622 is entitled: \\\"Risk management revolving fund; construction insurance fund; self-insured losses and administrative costs; budget requests.\\\" Subsection A mandates creation of these two funds \\\"for the purchase of insurance, risk management services ., [and] payment of self-insured losses pursuant to \\u00a7 41-621, subsections A, B, C, D and E.\\\" Subsection D requires DOA annually to present \\\"a budget request based on the actuarial needs for liability losses, workers' compensation liability losses, property losses and risk management administrative costs.\\\" It also mandates that the budget specify an amount to be charged to each entity and that each pay its proportionate share of the insurance/self-insurance costs.\\n\\u00b6 39 Before 1993, Subsection F stated that if either of the revolving funds\\nis projected to be exhausted while the legislature is in session, a special appropriation may be requested by the [DOA] for monies to meet the needs of the funds. If the funds are exhausted at a time when the legislature is not in session, any final judgment shall accrue interest at the legal rate and shall be payable upon appropriation in the next succeeding regular session of the legislature.\\n(Emphasis added.) See 1992 Ariz. Sess. Laws, Ch. 312 \\u00a7 12 (2nd Reg. Sess). When the legislature amended this subsection, it deleted the words \\\"at the legal rate\\\" in the above statute and added the following:\\nInterest on any judgment against this state paid for out of the risk management revolving fund shall accrue at the average yield offered by United States treasury bills during the course of the appeal and shall be paid in accordance with this section. If the appeal is lost by this state, the judgment amount plus interest at the rate prescribed in this subsection shall be paid.\\nSee 1993 Ariz. Sess. Laws, Ch. 71, \\u00a7 3 (1st Reg. Sess.).\\n\\u00b6 40 Furthermore, the House bill summary stated:\\nCurrently, judgments against the state which are under appeal accrue interest at the legal rate of 10% until the case is resolved through the appeals process. HB 2106 instead requires that the interest rate on any judgment against the State accrue at the average yield offered by U.S. Treasury Bills during the period in which the judgment is under appeal.\\n(Bill Summary for H.B. 2106 for House Committees on Government Operations and Banking and Insurance, Feb. 17,1993).\\nThe Senate Fact Sheet stated in part: Currently, judgments under appeal by the state accrue interest at a rate of 10% until the ease is resolved through the judicial process. H.B. 2106 changes this fixed interest rate to the average yield of U.S. Treasury Bills during the period in which the judgment is under appeal.\\n(Minutes of Senate Committee on Government, Fact Sheet for H.B. 2106, Mar. 18, 1993).\\n\\u00b6 41 From the plain language of the statute and this history, the legislature clearly intended that when a judgment against the State would be paid from the risk management revolving fund, the normal statutory interest rate would not apply if there was an appeal; and in the event of an appeal, the legislature intended to substitute a new, treasury bill-based interest rate during the time encompassed by the appeal. The parties do not dispute that the judgment here was to be paid out of the risk management revolving fund. Accordingly, we uphold the superior court's interpretation of the statute and its conclusion that the statute applied to these circumstances and required correction of the judgment to provide for the treasury bill-based interest rate during the pendency of the appeal.\\n\\u00b6 42 In light of our interpretation of \\u00a7 41-622(F), we are unpersuaded by Minjares' contention that the statute does not expressly exempt the State from the ten percent rate in A.R.S. \\u00a7 44-1201 and thus that the two statutes conflict. If two statutes appear to conflict, and one is more recent and specific, it usually will override the more general statute. In re Estate of Winn, 214 Ariz. 149, 152, \\u00b6 16, 150 P.3d 236, 239 (2007). Section 44-1201, as revised in 1969, applies to all judgments unless the parties otherwise agree; \\u00a7 41-622(F), as modified in 1993, specifies an interest rate during the pendency of an appeal only for judgments against the State that will be paid out of one of the revolving funds. It is both more recent and more specific than \\u00a7 44-1201(A), and the legislature was aware of that statute when it revised \\u00a7 41-622(F). Accordingly, \\u00a7 41-622(F) controls.\\n\\u00b6 43 Similarly, we reject Minjares' argument that \\u00a7 41-622(F) simply specifies an interest rate the liable department owes when it repays the revolving fund. This interpretation is neither supported by the statutory language that it applies to \\\"any judgment\\\" against the State paid out of the revolving fund nor is it supported by the relevant legislative history. Instead, the history reveals that the legislators were fully cognizant of the general ten percent rate and wished to \\\"change[ ] this fixed interest rate to the average yield of U.S. Treasury Bills during the period in which the judgment is under appeal.\\\" Accordingly, A.R.S. \\u00a7 41-622(F) governs the interest rate applicable during the State's appeal from a judgment to be paid from the revolving fund.\\nCONCLUSION\\n\\u00b6 44 For the foregoing reasons, we uphold the superior court's conclusion that it had authority to grant the State's request for a corrected judgment and the subsequent judgment awarding interest based on the average yield of United States Treasury bills during the pendency of the appeal.\\nCONCURRING: MARGARET H. DOWNIE, Judge.\\n. A.R.S. \\u00a7 41-622(F) reads in part: \\\"Interest on any judgment against this state paid for out of the risk management revolving fund shall accrue at the average yield offered by United States treasury bills during the course of the appeal and shall be paid in accordance with this section. If the appeal is lost by this state, the judgment amount plus interest at the rate prescribed in this subsection shall be paid.\\\"\\n. Although Minjares has challenged application of \\u00a7 41-622(F) to her judgment, she has not challenged the dates asserted by the State and accepted by the superior court during which the reduced interest rate would apply if the statute governs. Therefore for purposes of this appeal, we also accept those dates.\\n. In a recent case dealing with notices of claim against a government entity, our supreme court found waiver as a matter of law \\\"from the extensive litigation record.\\\" City of Phoenix v. Fields, 219 Ariz. 568, 575, \\u00b6 32, 201 P.3d 529, 536 (2009). In Fields, the court held that because \\\"a government entity may entirely avoid litigating the merits of a claim with a successful notice of claim statute defense, waiver of that defense should be found\\\", id. at \\u00b6 30, when that entity had actively litigated the merits for nearly five years before challenging the adequacy of the notices of claim. Id. at \\u00b6 30-31. Similarly, in Jones v. Cochise County, 218 Ariz. 372, 380, \\u00b628, 187 P.3d 97, 105 (App.2008), we held that when facts showing waiver are undisputed, occurred during the litigation, and are unrelated to the facts of the claim, an appellate court may resolve waiver as a matter of law. In both cases, the plaintiffs faced total denial of relief after an extended time in which the defendant had not identified possible defects in the notices of claim. Minjares will not suffer complete deprivation of her judgment or of interest on it but only a reduction.\\n. Minjares argued that Rule 60(b)(2) could not apply because there was no newly discovered evidence that could not have been discovered in time to move for a new trial. However, that ground is found in Rule 60(c)(2), not 60(b)(2).\\n. In contrast to \\u00a7 4I-622(F), A.R.S. \\u00a7 41-622.01 (2004) creates a \\\"permanent special risk revolving fund . for . administering joint insurance purchase, self-insurance, or pooled retention plans for contractors of this state prescribed by \\u00a7 41-621, subsection C.\\\" It provides that \\\"[i]f the revolving fund is projected to be exhausted the board of trustees shall make a special assessment on all members . to meet the needs of the fund. If the monies . are exhausted a final claim settlement of judgment shall accrue interest at the legal rate and is payable on receipt of allocated income from members of the pool.\\\" \\u00a7 41-622.01(C) (emphasis added).\\n. Despite our conclusion, in the future when a judgment has been entered against the State and will be paid out of the risk management revolving fund, we strongly urge the parties to acknowledge in the judgment the possibility that A.R.S. \\u00a7 41-622(F) may supplant the normal statutory interest rate during the pendency of an appeal. Had the State objected to the form of judgment on the ground that if it appealed and lost \\u00a7 41-622(F) would apply, the superior court could have ruled upon the question. Then, either party could have challenged an unfavorable ruling and obtained a resolution by this court in the first appeal, obviating the expense and delay that has resulted from this second appeal.\\n. Minjares also contends that A.R.S. \\u00a7 41-622(D) provides guidance, but that subsection does not address the interest rate applicable to a judgment on appeal and is not relevant.\\n. Minjares argues for the first time in her reply brief that A.R.S. \\u00a7 41 \\u2014 622(F) applies to a judgment entered against the State when the legislature is not in session. We decline to consider arguments first raised in a reply brief. Romero v. Sw. Ambulance, 211 Ariz. 200, 204 n. 3, \\u00b6 7, 119 P.3d 467, 471 n. 3 (App.2005).\"}"
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+"{\"id\": \"4057343\", \"name\": \"ESTATE OF Timothy MAUDSLEY; Patrick Maudsley and Keady Maudsley, husband and wife; and personal representatives of the Estate of Timothy Maudsley, Plaintiffs/Appellants, v. META SERVICES, INC., an Arizona corporation; ValueOptions, Inc., a business entity; Carlos Orestes Andarsio, M.D. and Jane Doe Andarsio, husband and wife; Bill G. Sbiliris, M.D. and Jane Doe Sbiliris, husband and wife, Defendants/Appellees\", \"name_abbreviation\": \"Estate of Maudsley v. Meta Services, Inc.\", \"decision_date\": \"2011-06-23\", \"docket_number\": \"No. 1 CA-CV 10-0494\", \"first_page\": \"430\", \"last_page\": \"438\", \"citations\": \"227 Ariz. 430\", \"volume\": \"227\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T01:03:45.382017+00:00\", \"provenance\": \"CAP\", \"judges\": \"CONCURRING: JOHN C. GEMMILL and PATRICIA A. OROZCO, Judges.\", \"parties\": \"ESTATE OF Timothy MAUDSLEY; Patrick Maudsley and Keady Maudsley, husband and wife; and personal representatives of the Estate of Timothy Maudsley, Plaintiffs/Appellants, v. META SERVICES, INC., an Arizona corporation; ValueOptions, Inc., a business entity; Carlos Orestes Andarsio, M.D. and Jane Doe Andarsio, husband and wife; Bill G. Sbiliris, M.D. and Jane Doe Sbiliris, husband and wife, Defendants/Appellees.\", \"head_matter\": \"258 P.3d 248\\nESTATE OF Timothy MAUDSLEY; Patrick Maudsley and Keady Maudsley, husband and wife; and personal representatives of the Estate of Timothy Maudsley, Plaintiffs/Appellants, v. META SERVICES, INC., an Arizona corporation; ValueOptions, Inc., a business entity; Carlos Orestes Andarsio, M.D. and Jane Doe Andarsio, husband and wife; Bill G. Sbiliris, M.D. and Jane Doe Sbiliris, husband and wife, Defendants/Appellees.\\nNo. 1 CA-CV 10-0494.\\nCourt of Appeals of Arizona, Division 1, Department D.\\nJune 23, 2011.\\nLaw Offices of David J. Don, PLLC By David J. Don, Phoenix, Co-Counsel for Plaintiffs/Appellants.\\nLaw Offices of Gregory C. Tishkoff, PLC By Gregory C. Tishkoff, Mesa, Co-Counsel for Plaintiffs/Appellants.\\nUdall, Shumway & Lyons, PLC By H. Miche\\u00e1l Wright and Lincoln M. Wright, Mesa, Co-Counsel for Plaintiffs/Appellants.\\nRenaud Cook Drury Mesaros, PA By Carol M. Romano, and Kevin R. Myer, Phoenix, Attorneys for Defendant/Appellee Meta Services, Inc.\\nClark Hill PLC By Russell A. Kolsrud, Mark S. Sifferman and Duncan J. Stoutner, Scottsdale, Attorneys for Defendants/Appel-lees ValueOptions, Inc., Carlos Orestes An-darsio, M.D., and Bill G. Sbiliris, M.D.\", \"word_count\": \"4328\", \"char_count\": \"27083\", \"text\": \"OPINION\\nNORRIS, Judge.\\n\\u00b6 1 This appeal arises from summary judgment dismissing negligence and wrongful death claims filed by the Estate of Timothy Maudsley against the operators of a psychiatric care facility, Meta Services, Inc. and Va-lueOptions, Inc., and two psychiatrists employed by ValueOptions, Carlos Andarsio, M.D., and Bill Sbiliris, M.D. The Estate argues the superior court should not have granted summary judgment to defendants because, contrary to its ruling, defendants owed a duty of reasonable care to Maudsley, who was mentally ill. We agree with the Estate. First, defendants owed Maudsley a duty of reasonable care based on public policy as reflected by Arizona statutes that authorize and, in some cases, require mental health screening, evaluation, and treatment of mentally ill individuals such as Maudsley. Second and alternatively, defendants owed a duty of reasonable care to Maudsley if he had a doctor-patient relationship with them. Because the parties presented conflicting evidence as to whether such a relationship existed, the court should not have granted summary judgment in defendants' favor on that issue. Accordingly, we reverse and remand for further proceedings consistent with this opinion.\\nFACTS AND PROCEDURAL BACKGROUND\\n\\u00b6 2 On April 26, 2005, at 1:03 p.m., a Va-lueOptions psychiatrist filed a Petition for Court-Ordered Evaluation with the superior court to require Maudsley, who was already a ValueOptions patient, to submit to inpatient psychiatric evaluation because of a mental disorder that rendered him \\\"[pjersistently or acutely disabled.\\\" The psychiatrist attached to the petition an Application for Involuntary Evaluation from Maudsley's mother. In the application, Maudsley's mother stated her son suffered from \\\"impaired judgment, doesn't understand [the] importance of medication [and] treatment, [and] walked away from [a] residential treatment facility and psychiatric recovery center.\\\" The psychiatrist also attached a Pre-Petition Screening Report by Maudsley's ValueOptions case manager that stated, \\\"Given Client[']s current behaviors and continued refusal to accept voluntary evaluation, and the continued increase in symptoms, it appears Court Ordered Evaluation may be necessary.\\\"\\n\\u00b6 3 Twenty-one minutes after the psychiatrist filed the petition, Arizona State University police received a call about a suspicious person on the Tempe campus. An officer spoke with the person, who turned out to be Maudsley, who said he was mentally ill and would like some help. The officer noticed Maudsley had a swollen ankle and was having difficulty walking. Police called CARE 7, a crisis care organization, which sent C.J. to speak with Maudsley.\\n\\u00b6 4 C.J. arrived and spoke with Maudsley, who told her he was a ValueOptions patient. C.J. called the ValueOptions Crisis Line and, according to her report written two days later, in which she refers to herself as \\\"CARE 7,\\\" she was told to take Maudsley to the Psychiatric Recovery Center (\\\"PRC\\\").\\nCARE 7 was told that [Maudsley's] parents were involved, along with Value Options, in a petition hearing that morning and that he would probably end up at Desert Vista. CARE 7 asked the Value Options case manager several times what needed to be communicated when Tim was taken to META CARE 7 agreed to mention the petition hearing and the Value Options connection to the intake personnel at META CARE 7 was told they would automatically call Value Options for information.\\n\\u00b6 5 C.J. referred to PRC as \\\"META\\\" because PRC was \\\"licensed and operated by\\\" Meta. Under a contract between ValueOp-tions and Meta, the psychiatrists at PRC worked for ValueOptions, while the PRC support staff worked for Meta. The PRC medical director, Dr. Sbiliris, worked for Va-lueOptions and supervised the psychiatrists but did not supervise the support staff. At the time, ValueOptions was the Regional Behavioral Health Authority (\\\"RBHA\\\") for Maricopa County and contracted with the State of Arizona to provide behavioral health services to certain qualified individuals in Maricopa County.\\n\\u00b6 6 Consistent with what ValueOptions told her, C.J. transported Maudsley to PRC and told the receptionist and another employee that Maudsley was a ValueOptions patient with a pending petition for court-ordered evaluation. Because Maudsley did not want to write, C.J. \\\"fill[ed] out the papers for admission.\\\" According to C.J., Maudsley 'Vas being fully cooperative\\\" and was \\\"fine\\\" with being at PRC. C.J. repeated to Dr. Andarsio what she had told the receptionist and the other employee. According to C.J.'s written report, Dr. Andarsio\\nmet with CARE 7 and after hearing the information that Value Options relayed said the information was sufficient for intake. [Dr. Andarsio] signed the encounter sheet as the \\\"Agency accepting client\\\" and said CARE 7 was released. When CARE 7 left the premises Tim was standing outside the door to the waiting room and the intake personnel was aware of where he was because they were just inside the door and saw him walk out. CARE 7 reminded Tim that intake would be right with him and not to leave.\\n\\u00b6 7 Dr. Andarsio spoke to Maudsley and asked him about his ankle injury, if he was \\\"hearing any voices,\\\" \\\"if he was thinking that people could read his thoughts,\\\" \\\"whether he thought people put thoughts into his mind and take thoughts out of his mind,\\\" \\\"if he was at risk of hurting himself,\\\" and \\\"if he was at risk of hurting anybody else.\\\" After speaking with him, Dr. Andarsio \\\"was impressed with\\\" Maudsley's \\\"disorganized thought process,\\\" which Dr. Andarsio equated to a \\\"chronic psychotic condition.\\\" Dr. Andarsio asked Maudsley if he would go to the emergency room to have his ankle treated and then come back to PRC. Dr. Andarsio said Maudsley told him he would return. At Dr. Andarsio's \\\"request,\\\" a Meta employee pushed Maudsley in a wheelchair across the parking lot to Maricopa Medical Center, where the emergency room admitted him. Maudsley left the waiting room before being treated.\\n\\u00b6 8 That night, a witness saw Maudsley \\\"jumping up and down\\\" and \\\"causing a scene\\\" near a Phoenix intersection. Mauds-ley attempted to cross the street against the stoplight and a car hit him. He sustained severe injuries and died ten months later from complications from those injuries.\\n\\u00b6 9 After the Estate sued Meta, ValueOp-tions, Dr. Andarsio, and Dr. Sbiliris for negligence and wrongful death, the Estate deposed C.J. and Dr. Andarsio. Their testimony differed in significant respects. C.J. testified she told the receptionist, the other employee, and Dr. Andarsio that Maudsley was a ValueOptions patient with a petition for court-ordered evaluation. C.J. also testified that, based on Dr. Andarsio telling her he had \\\"all the information that [he] need[ed]\\\" and her prior encounters with PRC, she assumed Maudsley would be admitted to PRC. Dr. Andarsio, however, testified he was \\\"not aware\\\" Maudsley was a ValueOptions patient and was \\\"not informed\\\" a petition had been filed for Maudsley. Dr. Andarsio testified he knew only that Maudsley was \\\"a voluntary patient.\\\" When asked whether he had assumed Maudsley was at PRC for a psychiatric evaluation, Dr. Andarsio said he did not \\\"really know how to answer that question, other than the fact that he arrived at PRC and I asked him a series of questions.\\\"\\n\\u00b6 10 Subsequently, the superior court granted summary judgment to Meta, Va-lueOptions, and Drs. Andarsio and Sbiliris, ruling they did not owe Maudsley a duty of reasonable care. The Estate timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (\\\"A.R.S.\\\") section 12-2101(B) (2003).\\nDISCUSSION\\n\\u00b6 11 The Estate argues the superior court should not have granted summary judgment to defendants because they owed Maudsley a duty of care based on statutes and the existence of a doctor-patient relationship. We agree in part. First, defendants owed Maudsley a duty of reasonable care based on considerations of public policy as shown through Arizona statutes. Second, even if public policy as reflected by state statutes does not support recognition of a duty of care, a duty of care existed if Maudsley had a doctor-patient relationship with defendants. Because the parties presented conflicting evidence on whether such a relationship existed, a factfinder needed to decide this preliminary fact question. Thus, the superior court should not have granted summary judgment.\\nI. Preliminary Matters\\n\\u00b6 12 First, although the superior court's ruling granting summary judgment mentioned breach, it was premised on the absence of duty. Viewed in context, the superior court's reference to breach appears incidental; indeed, the Estate and defendants have focused their appellate arguments on duty. Thus, in our view, duty is the only issue properly before us and the only issue we address.\\n\\u00b6 13 Second, ValueOptions and Meta argue we should affirm summary judgment in their favor because the Estate failed to present evidence showing they had proximately caused Maudsley's death. We disagree. In an affidavit, the Estate's standard-of-care expert, Jack Potts, M.D., stated Maudsley's death was the \\\"predictable result of several obvious failures of his mental health care providers,\\\" such as failing to log in all patients at PRC and failing to safely transfer patients for medical clearance. This affidavit sufficiently raised genuine issues of material fact as to proximate cause. See Stearman v. Miranda, 97 Ariz. 55, 59, 396 P.2d 622, 625 (1964) (generally, proximate cause is to be decided by the factfinder).\\n\\u00b6 14 Third, the record contains little information about the relationship between Meta and ValueOptions. Indeed, in moving for summary judgment, neither Meta nor Va-lueOptions provided the court with any details regarding their relationship other than those recited above. See supra \\u00b6 5. Neither argued it could not be liable because it was subject to a different duty of care than the other, or to no duty of care because of their contractual relationship, or even that the other was responsible for Maudsley's care. Dr. Sbiliris did, however, argue he could not be liable because he never interacted with Maudsley\\u2014an issue we consider separately. See infra \\u00b6 26-27. It is clear from the record that, regardless of the contractual relationship, ValueOptions and Meta operated PRC in tandem and PRC provided psychiatric services. As a result, and given the state of the record, we treat all defendants collectively in this decision.\\nII. Duty Based on Considerations of Public Policy\\n\\u00b6 15 \\\"To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages.\\\" Gipson v. Kasey, 214 Ariz. 141, 143, \\u00b6 9, 150 P.3d 228, 230 (2007). In Gipson, the Arizona Supreme Court held an employee who gave prescription drugs to a co-worker owed a duty of care to the co-worker\\u2014who later died from a drug overdose\\u2014based on public policy reflected by criminal statutes that prohibited the distribution of prescription drugs to those not covered by the prescription. Id. at 146, \\u00b6 26, 150 P.3d at 233. The court considered two possible bases for a duty: (1) the relationship between the parties and (2) public policy considerations. Id. at 144-46, \\u00b6 18-26,150 P.3d at 231-33. The court expressly rejected foreseeability as a factor in determining duty. Id. at 144, \\u00b6 15, 150 P.3d at 231. Although duties of care can arise from special relationships, the court explained duty is a legal matter, not a factual one, and determinations of duty should not be based on a \\\"fact-specific analysis\\\" of the relationship between the parties. Id. at 145, \\u00b6 20-21, 150 P.3d at 232. Public policy may be found in state statutes and the common law. Id. at 146 n.4, \\u00b6 24, 150 P.3d at 233 n.4.\\n\\u00b6 16 We consider the relationship between the parties subsequently, see infra \\u00b6 23-25, but first we consider whether public policy created a duty. In Gipson, the court analyzed criminal statutes to find a duty of care. 214 Ariz. at 146, \\u00b6 26, 150 P.3d at 233. Here, we analyze Arizona's mental health statutes to determine whether they provide a basis for a duty of care.\\n\\u00b6 17 In 1974, the Arizona Legislature enacted the Mental Health Services Act. 1974 Ariz. Sess. Laws, eh. 185, \\u00a7 2 (2d Reg. Sess.) (codified at AR.S. \\u00a7 36-501 to -591 (1974)). The Act thoroughly revamped Arizona law on civil commitment of the mentally ill. Daniel W. Shuman, Kenney F. Heg-land & David B. Wexler, Arizona's Mental Health Services Act: An Overview and an Analysis of Proposed Amendments, 19 Ariz. L. Rev. 313, 313 (1977) [hereinafter Overview ]; see In re Pinal Cnty. Mental Health No. MH-201000029, 225 Ariz. 500, 503, \\u00b6 13, 240 P.3d 1262, 1265 (App.2010) (\\\"The new law implemented a package of reforms aimed at clarifying and enforcing patients' rights, preventing involuntary psycho-surgeries, and generally protecting patients from abuse and medical neglect.\\\" (footnotes omitted)). Among many other significant changes, the revision required pre-petition screening at designated agencies before a court-ordered commitment hearing and encouraged the use of voluntary admission for treatment instead of the involuntary commitment process. Overview at 315-25. Although the legislature has amended and revised the Act since its passage, the focus on (1) initial screening of proposed patients before evaluation and treatment, and (2) voluntary, rather than involuntary, treatment has never wavered. The current statutes reflect this focus and demonstrate Arizona's public policy in favor of providing appropriate screening, evaluation, and treatment of individuals who arrive at psychiatric facilities that provide mental health services under the Act, such as PRC.\\n\\u00b6 18 The Arizona Department of Health Services supervises the delivery of mental health care under the statutory scheme. See Arnold v. Ariz. Dep't of Health Servs., 160 Ariz. 593, 599, 775 P.2d 521, 527 (1989). The Department contracts with RBHAs to deliver mental health care throughout the state. A.R.S. \\u00a7 36-3401(4), (8) (2009); see Arnold, 160 Ariz. at 609-10, 775 P.2d at 537-38 (Arizona's statutory scheme shows the legislature aimed to provide a continuum of effective mental health services in a timely fashion to those in need).\\n\\u00b6 19 With this general background in mind, we look more specifically to the mental health statutes to determine whether, as a matter of public policy, they provide a basis for a duty of care. Under A.R.S. \\u00a7 36-518(A) (2009), a person may voluntarily seek mental health treatment. \\\"The agency to which the person applies may accept and admit the person if the medical director of the agency or the admitting officer believes that the person needs evaluation or will benefit from care and treatment . \\\" A.R.S. \\u00a7 36-518(A). Further, under A.R.S. \\u00a7 36-520(A) (2009), a \\\"responsible individual\\\" can apply for involuntary evaluation and treatment of another. If the applicant \\\"presents\\\" the person who is the subject of the application for involuntary evaluation and treatment to a screening agency, the agency must conduct a pre-petition screening examination. A.R.S. \\u00a7 36-520(E). A pre-petition screening examination includes \\\"an interview, if possible, with the proposed patient. The purpose of the interview with the proposed patient is to assess the problem, explain the application and, when indicated, attempt to persuade the proposed patient to receive, on a voluntary basis, evaluation or other services.\\\" A.R.S. \\u00a7 36-501(34) (Supp.2010). Thus, whether people are seeking treatment voluntarily or others are seeking treatment for them, Arizona law requires initial screening to determine whether people need further evaluation and treatment, and, if they do, that they receive it.\\n\\u00b6 20 Similarly, under AR.S. \\u00a7 36-526(A) (2009), \\\"an evaluation agency shall perform an examination\\\" of a person \\\"[u]pon presentation of the person for emergency admission.\\\" The person may be admitted on an emergency basis without court action if \\\"there is reasonable cause to believe that the person, as a result of a mental disorder, is a danger to self or others, and that during the time necessary to complete the prepetition screening procedures . the person is likely without immediate hospitalization\\\" to suffer serious haim or seriously harm someone else. AR.S. \\u00a7 36-526(A). Additionally, counties, which ordinarily contract for the provision of mental health services, are required to \\\"provide screening or evaluation\\\" \\\"[u]pon a request made by a resident of the county.\\\" AR.S. \\u00a7 36-545.06 (2009). These statutes demonstrate that if a person seeks mental health services from a mental health facility operating under the Act, the facility must screen and, in some eases, evaluate and treat that person.\\n\\u00b6 21 These statutes, thus, reflect a public policy that imposes obligations on entities that screen, evaluate, and treat the mentally ill pursuant to the Act. In recognition of this public policy, we hold defendants owed Maudsley a duty of reasonable care based on Arizona statutes that authorize, and in some cases require, mental health screening, evaluation, and treatment of individuals who may be in need of mental health services. See Arnold, 160 Ariz. at 609-10, 775 P.2d at 537-38. What is required to satisfy the duty of reasonable care \\\"depend[s] upon the facts of each case,\\\" Stanley v. McCarver, 208 Ariz. 219, 224, \\u00b6 16, 92 P.3d 849, 854 (2004), and whether a duty is breached is an issue of fact normally reserved for the jury. See Gipson, 214 Ariz. at 143, \\u00b6 9-10, 150 P.3d at 230. Here, defendants may not have breached the duty of care they owed Maudsley, but that will need to be decided by the finder of fact.\\n\\u00b6 22 Defendants argue the public policy reflected by the mental health statutes does not support a duty and instead demonstrates that \\\"persons receiving outpatient behavioral health services possess the same civil rights as any other person in society, including the right to refuse evaluation or treatment.\\\" We acknowledge the statutory scheme \\\"provides a series of procedural safeguards to ensure that court-ordered mental health evaluations are not conducted indiscriminately,\\\" In re MH 2008-000028, 221 Ariz. 277, 281, \\u00b6 16, 211 P.3d 1261, 1265 (App.2009), but the issue of whether a patient seeks help voluntarily or involuntarily is a red herring. The issue is duty of care, which is a legal issue to be decided as a matter of law. We hold, as a matter of law, defendants owed Maudsley a duty of reasonable care based on the Arizona statutes that impose obligations on entities licensed to screen, evaluate, and treat the mentally ill.\\nIII. Traditional Doctor-Patient Relationship\\n\\u00b6 23 The Estate also argues defendants accepted Maudsley as a patient and thus owed him a duty of care. Diggs v. Ariz. Cardiologists, Ltd., 198 Ariz. 198, 201, \\u00b6 14, 8 P.3d 386, 389 (App.2000) (\\\"an express contractual physician-patient relationship clearly gives rise to a duty to the patient\\\"). Meta and ValueOptions disagree\\u2014Meta argues it never accepted Maudsley as a patient and ValueOptions asserts Maudsley was simply \\\"voluntary.\\\" Whether a duty existed is a question of law, Gipson, 214 Ariz. at 143, \\u00b6 9, 150 P.3d at 230, but \\\"the existence of a duty may depend on preliminary questions that must be determined by a fact finder.\\\" Diggs, 198 Ariz. at 200, \\u00b6 11, 8 P.3d at 388. If preliminary facts are in dispute, summary judgment should not be entered. Id.\\n\\u00b6 24 Here, a preliminary question of fact exists as to whether Maudsley's interactions with PRC staff and Dr. Andarsio created a doctor-patient relationship that would give rise to a duty of care. C.J. completed paperwork for Maudsley at PRC and testified, consistent with her contemporaneous written report, Dr. Andarsio told her she had provided information sufficient for intake, and thus she assumed, based on what he had told her and her prior experiences with PRC, Mauds-ley would be admitted. Additionally, Dr. Andarsio signed CARE 7's \\\"Client Encounter Form\\\" as the \\\"Agency accepting client,\\\" and a \\\"decision letter\\\" written by ValueOp-tions after receiving a request for a grievance investigation stated \\\"[C.J.] stated PRC staff assured her Mr. Maudsley would be admitted.\\\" (Emphasis added.) The Va-lueOptions letter also stated: \\\"The ValueOp-tions clinical team did not contact PRC to confirm Mr. Maudsley had been admitted. Instead, they relied solely on [C.J.] to facilitate Mr. Maudsley['s] admittance for care.\\\" (Emphasis added.)\\n\\u00b6 25 Although Meta and ValueOptions employees disputed the existence of a doctor-patient relationship, whether Meta and Va-lueOptions owed Maudsley a duty of care arising out of such a relationship depended on whether such a relationship factually existed. The superior court was not in a position to determine whether Meta and Va-lueOptions's involvement with Maudsley at PRC gave rise to a duty of care until the finder of fact determined the preliminary question of whether a doctor-patient relationship existed. Thus, the superior court should not have granted summary judgment.\\nIV. Dr. Sbiliris\\n\\u00b6 26 On appeal, the Estate argues Dr. Sbiliris failed to supervise and ensure proper policies were in place and followed. In response, Dr. Sbiliris argues the Estate did not raise this argument below and no other basis exists for his liability. We disagree; the Estate preserved the issue, albeit barely, through Dr. Potts's affidavit, which stated \\\"Dr. Sbiliris had a supervisor role to ensure that polie[i]es and procedures were in place and followed at the PRC.\\\"\\n\\u00b6 27 Because Dr. Sbiliris had supervisory capacity over ValueOptions psychiatrists, including Dr. Andarsio, a duty based on public policy or a doctor-patient relationship could extend to him. Cf. Purcell v. Zimbelman, 18 Ariz.App. 75, 81, 500 P.2d 335, 341 (1972) (hospital could be liable for independent contractor doctor's negligence because \\\"hospital had assumed the duty of supervising the competence of its staff doctors\\\").\\nCONCLUSION\\n\\u00b6 28 For the foregoing reasons, we reverse summary judgment in favor of defendants and remand for further proceedings consistent with this opinion.\\nCONCURRING: JOHN C. GEMMILL and PATRICIA A. OROZCO, Judges.\\n. During her deposition, C.J. did not remember the name of the psychiatrist she spoke to, but this psychiatrist was referred to as \\\"Dr. Andarsio\\\" in the deposition and, in his deposition, Dr. Andar-sio confirmed he was the psychiatrist involved in the encounter with C.J.\\n. Although the Arizona Legislature amended certain statutes cited in this decision after Maudsley was injured, the revisions are immaterial. Thus, we cite to the current versions of these statutes.\\n. The Estate also argues defendants owed Maudsley a duty arising out of an undertaking to provide services to a non-patient. In light of our holding that defendants owed Maudsley a duty based on statutes, we do not consider this argument.\\n. We review de novo the superior court's entry of summary judgment and view the evidence in the light most favorable to the Estate. Brookover v. Roberts Enters., Inc., 215 Ariz. 52, 55, \\u00b6 8, 156 P.3d 1157, 1160 (App.2007). If an issue of material fact exists, summary judgment is not appropriate. Orme Sch. v. Reeves, 166 Ariz. 301, 309-10, 802 P.2d 1000, 1008-09 (1990). \\\"Whether a legal duty exists is a question of law that we review de novo.\\\" Clark v. New Magma Irrigation & Drainage Dist., 208 Ariz. 246, 248, II 8, 92 P.3d 876, 878 (App.2004).\\n. In their answering briefs on appeal, ValueOp-tions mentioned breach in a sentence and Meta did not mention breach at all. ValueOptions's passing reference to breach failed to preserve the issue on appeal. Additionally, the record reflects a triable issue of fact existed regarding whether Dr. Andarsio breached the standard of care in his questioning of Maudsley at PRC.\\n. We note ValueOptions argued that insofar as the Estate's claims against it \\\"pertain[ed] to policies,\\\" Meta had \\\"drafted and issued the PRC policies\\\" and thus ValueOptions could sustain no liability from such policies.\\n. On remand, Meta and ValueOptions will be free to present to the superior court additional evidence and details about their relationship and to assert any defenses to the Estate's claims that arise out of that relationship or their different roles at PRC.\\n. The Petition for Court-Ordered Evaluation filed on Maudsley's behalf did not contend there was reasonable cause to believe he was a danger to self or others.\\n. Although it may be argued Gipsons direction to avoid \\\"fact-specific analysis\\\" in analyzing whether a duty existed, 214 Ariz. at 145, \\u00b6 21, 150 P.3d at 232, abrogated the rule that a factfinder may need to decide preliminary issues of fact before a court can find whether a duty existed, we do not think Gipson went that far. Gipson recognized that special relationships can give rise to duties, id. at \\u00b6 19 (listing relationships that can give rise to duty, including landowner-invitee, tavern owner-patron, and special relationships in Restatement (Second) of Torts \\u00a7 315 (1965)), so whether a special relationship actually existed in a particular instance\\u2014such as the case of a doctor-patient relationship created through admission to a medical facility'\\u2014may be a factual question a factfinder must decide before a court can analyze duty.\\n. Meta and ValueOptions employees repeatedly asserted Maudsley was never admitted and was simply \\\"voluntary.\\\" Dr. Andarsio testified Maudsley was not admitted as a patient because he had not \\\"gone through an admission process\\\" and had not \\\"signed a consent for treatment.\\\"\\n. Any possible liability for Dr. Sbiliris must be premised on supervision because it is undisputed he never had any contact with Maudsley.\"}"
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+"{\"id\": \"4061556\", \"name\": \"STATE of Arizona, Plaintiff/Appellee, v. The Honorable Marianne T. BAYARDI, Judge of the Phoenix Municipal Court, Respondent Judge, Joseph W. Fannin, Real Party in Interest/Appellant\", \"name_abbreviation\": \"State v. Bayardi\", \"decision_date\": \"2012-08-09\", \"docket_number\": \"No. 1 CA-CV 11-0615\", \"first_page\": \"195\", \"last_page\": \"201\", \"citations\": \"230 Ariz. 195\", \"volume\": \"230\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T19:09:07.076251+00:00\", \"provenance\": \"CAP\", \"judges\": \"CONCURRING: DIANE M. JOHNSEN, Presiding Judge.\", \"parties\": \"STATE of Arizona, Plaintiff/Appellee, v. The Honorable Marianne T. BAYARDI, Judge of the Phoenix Municipal Court, Respondent Judge, Joseph W. Fannin, Real Party in Interest/Appellant.\", \"head_matter\": \"281 P.3d 1063\\nSTATE of Arizona, Plaintiff/Appellee, v. The Honorable Marianne T. BAYARDI, Judge of the Phoenix Municipal Court, Respondent Judge, Joseph W. Fannin, Real Party in Interest/Appellant.\\nNo. 1 CA-CV 11-0615.\\nCourt of Appeals of Arizona, Division 1, Department B.\\nAug. 9, 2012.\\nAaron J. Carreon-Ainsa, Phoenix City Prosecutor by Samuel K. Lesley, Assistant City Prosecutor, Phoenix, Attorneys for Plaintiff/Appellee.\\nGallagher & Kennedy PA by Barry D. Mitchell, Flynn Patrick Carey, Phoenix, Attorneys for Real Party in Interest/Appellant.\\nCity of Phoenix Public Defender\\u2019s Office by Laurie A. Herman, Phoenix, Attorney for Amicus Curiae.\", \"word_count\": \"3419\", \"char_count\": \"20884\", \"text\": \"OPINION\\nTHUMMA, Judge.\\n\\u00b6 1 Defendant Joseph W. Fannin is charged in municipal court with driving with an impermissible drug in his body in violation of Arizona Revised Statutes (\\\"A.R.S.\\\") section 28-1381(A)(3) (West 2012). Fannin challenges the superior court's holding that A.R.S. \\u00a7 28-1381(D) creates an affirmative defense requiring him to prove by a preponderance of the evidence that he was using the drug as prescribed by a medical practitioner. For the following reasons, we accept jurisdiction and deny relief.\\nFACTUAL AND PROCEDURAL HISTORY\\n\\u00b6 2 The State has charged Fannin with two counts of driving under the influence. Count 1. which is not at issue here, alleges Fannin drove while impaired to the slightest degree in violation of A.R.S. \\u00a7 28-1381(A)(1). Count II, which is at issue here, alleges Fannin drove with an impermissible drug or its metabolite in his body in violation of A.R.S. \\u00a7 28-1381(A)(3).\\n\\u00b6 3 Under 28-1381(D), a defendant \\\"is not guilty\\\" of a 28-1381(A)(3) charge if the defendant was \\\"using a drug, as prescribed by a medical practitioner.\\\" Before the municipal court, Fannin argued 28-1381(D) establishes a justification defense requiring the State to prove beyond a reasonable doubt that he was not using prescription drags as prescribed by a medical practitioner. Fannin submitted a jury instruction for Count II requiring the State to prove that \\\"[t]he defendant was not taking the Methadone, Klo-nopin or Ritalin as prescribed by a licensed medical practitioner.\\\" The State objected, arguing 28-1381(D) is an affirmative defense requiring Fannin to prove by a preponderance of the evidence that he was using prescription drags as prescribed.\\n\\u00b6 4 The municipal court found 28-1381(D) is a justification defense and not an affirmative defense. The court found Fannin has the burden to make a prima facie showing that he was using prescription drugs as prescribed and, if such a showing is made, the State would have \\\"the burden of proving beyond a reasonable doubt that [Fannin] did not take the medication in accordance with a valid prescription.\\\"\\n\\u00b6 5 The State challenged the municipal court's ruling by filing a special action petition with the superior court. The superior court accepted jurisdiction and granted relief, holding 28-1381(D) is an affirmative defense. Fannin appeals from the superior court's decision.\\nDISCUSSION\\nI. Jurisdiction\\n\\u00b6 6 Our appellate jurisdiction is purely statutory. Ariz. Const. Art. VI \\u00a7 9; Hall Family Props., Ltd. v. Gosnell Dev. Corp., 185 Ariz. 382, 386, 916 P.2d 1098, 1102 (App.1995). If we decide a case beyond our statutory jurisdiction, the decision is of no force and effect. State v. Avila, 147 Ariz. 330, 334, 710 P.2d 440, 444 (1985). We have an independent duty to determine whether we have jurisdiction. Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App.1997).\\n\\u00b6 7 Both parties summarily state that appellate jurisdiction is proper pursuant to A.R.S. \\u00a7 12-2101(A)(1) & (4). It is not clear, however, that we have appellate jurisdiction over the superior court's minute entry. Without deciding that issue, we elect to exercise special action jurisdiction. It does not appear that either party has \\\"an equally plain, speedy, and adequate remedy by appeal.\\\" Ariz. R.P. Spec. Act. 1(a). Moreover, the issue presented is of statewide impor tance and has yet to be resolved in any appellate decision. See State ex rel. Romley v. Martin, 203 Ariz. 46, 47, \\u00b6 4, 49 P.3d 1142, 1143 (App.2002); see also Danielson v. Evans, 201 Ariz. 401, 411, \\u00b6 35, 36 P.3d 749, 759 (App.2001) (after finding appellate jurisdiction lacking, court sua sponte accepted special action jurisdiction). Accordingly, in our discretion, we exercise special action jurisdiction. See A.R.S. \\u00a7 12-120.21(A)(4); Ariz. R.P. Spec. Act. 1(a).\\nII. Statutory Construction\\na. Statutory Overview\\n\\u00b6 8 It a misdemeanor \\\"for a person to drive or be in actual physical control of a vehicle . [wjhile there is any drug defined in [A.R.S.] \\u00a7 13-3401 or its metabolite in the person's body.\\\" A.R.S. \\u00a7 28-1381(A)(3). Actual impairment is not required; driving with any deteetible amount of any prohibited drug or its metabolite in the driver's body is a violation. Id,.; see also State v. Hammonds, 192 Ariz. 528, 530-32, 968 P.2d 601, 603-05 (App.1998) (describing scope and purpose of statutory predecessor); State v. Phillips, 178 Ariz. 368, 370-72, 873 P.2d 706, 708-10 (App.1994) (same).\\n\\u00b6 9 \\\"Any drug\\\" includes dozens of substances in three categories, ranging from methamphetamine to prescription drugs. See A.R.S. \\u00a7 13-3401(6) (\\\"Dangerous drug[s]\\\"); (20) (\\\"Narcotic drugs\\\") and (28) (\\\"Prescription-only drug[s]\\\"). The State need not show use of illegal drugs or abuse of prescription drugs to prove a violation. See A.R.S. \\u00a7 28-1381(A)(3). Guilt may be established by proving \\\"any drug\\\" listed in 13-3401 or its metabolite was in a driver's body.\\n\\u00b6 10 Section 28-1381(D) provides a narrow safe harbor for a defendant charged with violating 28-1381(A)(3). \\\"A person using a drug as prescribed by a medical practitioner licensed pursuant to [A.R.S. T]itle 32, [C]hapter 7 [podiatrist], 11 [dentist], 13 [medical doctor] or 17 [osteopath] is not guilty of violating\\\" 28-1381(A)(3). A.R.S. \\u00a7 28-1381(D). We are asked to decide whether 28-1381(D) is an affirmative defense, a justification defense or a defense that denies an element of the charge or responsibility.\\n\\u00b6 11 Fannin argues 28-1381(D) is a defense denying an element of the charge or responsibility as well as a justification defense or \\\"akin to a justification\\\" defense. Accordingly, Fannin claims the State has the burden to prove \\\"beyond a reasonable doubt that the defendant did not act with justification.\\\" A.R.S. \\u00a7 13-205(A). The State argues 28-1381(D) is an affirmative defense, meaning Fannin has the burden to prove \\\"by a preponderance of the evidence\\\" that he did not abuse prescription drugs. Id. Applying a de novo standard of review, we hold the superior court properly found 28-1381(D) is an affirmative defense requiring a defendant to prove by a preponderance of the evidence that he or she did not abuse prescription drugs.\\nb. Statutory Construction Principles\\n\\u00b6 12 \\\"Our primary goal in construing a statute is to determine and give effect to the intent of the legislature.\\\" State v. Barraza, 209 Ariz. 441, 444, \\u00b6 10, 104 P.3d 172, 175 (App.2005). We look first and foremost to the language of the statute as the best evidence of the legislature's intent, and we will ascribe the plain meaning to that language unless the context suggests otherwise. See Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996). \\\"If ambiguity exists, we apply secondary principles of statutory construction and consider other relevant information, including the history, context, and spirit and purpose of the law, to glean legislative intent.\\\" Vicari v. Lake Havasu City, 222 Ariz. 218, 222, \\u00b6 13, 213 P.3d 367, 371 (App.2009) (citations omitted).\\nc. Statutory Defenses Applicable to Criminal Charges\\n\\u00b6 13 Defenses to criminal charges under Arizona law are statutory. A.R.S. \\u00a7 13-103(A); State v. Cotton, 197 Ariz. 584, 587 n. 1, 5 P.3d 918, 921 n. 1 (App.2000) (noting 13- 103 \\\"abolish[ed] common law defenses\\\"). Arizona's Criminal Code (A.R.S. Title 13) contains three types of defenses: (1) affirmative defenses (defenses \\\"that attempt[] to excuse the criminal actions of the accused\\\"); (2) justification defenses (\\\"conduct that, if not justified, would constitute an offense but, if justified, does not constitute criminal or wrongful conduct\\\"); and (3) defenses that deny an element of the charge or responsibility (\\\"any defense that either denies an element of the offense charged or denies responsibility, including alibi, misidentification or lack of intent\\\"). A.R.S. \\u00a7 13-103(B), 205(A). These three types of defenses are mutually exclusive. A.R.S. \\u00a7 13-103(B) (\\\"Affirmative defense does not include any justification defense . or any defense that either denies an element of the offense charged or denies responsibility!)]\\\"), 205(A) (\\\"Justification defenses . are not affirmative defenses.\\\"). Accordingly, if a defense does not deny an element or responsibility and is not a justification defense, it is an affirmative defense. A.R.S. \\u00a7 13-103(B). Analysis of these defenses shows that 28-1381(D) is an affirmative defense.\\ni. Defenses Denying an Element or Responsibility\\n\\u00b6 14 A defense \\\"that either denies an element of the offense charged or denies responsibility, including alibi, misidentification or lack of intent,\\\" A.R.S. \\u00a7 13-103(B), asserts the State has failed to prove an element of a charged offense by proof beyond a reasonable doubt. See, e.g., State v. Rodriguez, 192 Ariz. 58, 63, \\u00b6 25, 961 P.2d 1006, 1011 (1998) (\\\"A defendant is not required to prove an alibi; rather, the jury must acquit a defendant if the alibi evidence raises a reasonable doubt about whether the defendant committed the crime.\\\"); State v. Rutledge, 205 Ariz. 7, 10, \\u00b6 11, 66 P.3d 50, 53 (2003) (similar for misidentification). Fannin does not argue here that 28-1381(D) constitutes an element of an offense under 28-1381(A)(3). Nor does the language of 28-1381(D) negate an element of such a charged offense. See Recommended Arizona Jury Instructions (Criminal) Statutory Instruction 28.1381(A)(3) (3d ed. 2010). Because successful invocation of 28-1381(D) does not turn on whether the State has proven the elements of a 28-1381(A)(3) charge beyond a reasonable doubt, we conclude 28-1381(D) is not a defense denying an element or responsibility within the meaning of A.R.S. \\u00a7 13-103.\\nii. Justification Defenses\\n\\u00b6 15 \\\"Justification defenses describe conduct that, if not justified, would constitute an offense but, if justified, does not constitute criminal or wrongful conduct.\\\" A.R.S \\u00a7 13-205(A). Fannin first argues the \\\"is not guilty\\\" language in 28-1381(D) shows the provision is a justification defense or \\\"akin to a justification defense.\\\" We disagree. When asserted successfully, each of the three types of defenses in the Criminal Code result in a \\\"not guilty\\\" verdict. Accordingly, the \\\"is not guilty\\\" language merely describes the result that can be obtained, not the type of defense 28-1381(D) represents.\\n\\u00b6 16 Prior to 2006, the burden and standard of proof for justification and affirmative defenses were identical: \\\"[e]xcept as otherwise provided by law, a defendant shall prove any affirmative defense raised by a preponderance of the evidence, including any justification defense under [C]hapter 4 of' Title 13. A.R.S. \\u00a7 13-205(A) (2005). In 2006, the legislature amended this provision to provide that, for those justification defenses, the State must prove beyond a reasonable doubt that the defendant did not act with justification. See 2006 Reg. Sess. S.B. 1145 (currently codified at A.R.S. \\u00a7 13-205(A)). In doing so, the legislature did not designate 28-1381(D) a justification defense. See Final Amended Ariz. Sen. F. Sheet, 2006 Reg. Sess. S.B. 1145 (discussing justification defenses under Chapter 4 of Title 13, which do not contain or refer to 28-1381(D)).\\n\\u00b6 17 Although Fannin relies on comments made to lawmakers by a non-legislator when 28-1381(D) was amended in 2009, such statements are of little value. See Hayes v. Continental Ins. Co., 178 Ariz. 264, 269-70, 872 P.2d 668, 673-74 (1994) (\\\"When seeking to ascertain the intent of legislators, courts normally give little or no weight to comments made at committee hearings by nonlegisla-tors.\\\"); see also Sempre Ltd. P'ship v. Mari-copa County, 225 Ariz. 106, 111, \\u00b6 20-22, 235 P.3d 259, 264 (App.2010) (citing Hayes ). The 2009 amendment added the word \\\"as\\\" so that 28-1381(D) begins \\\"A person using a drug, as prescribed .\\\" 2009 1st Reg. Sess. S.B. 1003 Ch. 124. The non-legislator's statement, as reflected in Senate minutes, supports Fannin's argument that the State has the burden to prove a driver was not using prescription drags as prescribed for a 28-1381(A)(3) charge. There is, however, no indication the statement was adopted by the Senate, let alone the House of Representatives and the Governor. Even more critically, the 2009 amendment did not designate 28 \\u2014 1381(D) a justification defense.\\n\\u00b6 18 The Criminal Code indicates justification defenses are limited to those listed in Chapter 4 of Title 13. See, e.g., A.R.S. \\u00a7 13-103(B) (referencing \\\"any justification defense pursuant to [C]hapter 4\\\"), 13-205(A) (similar). The justification defenses in Chapter 4 address duress, necessity and when a person is allowed to use force against another. See A.R.S. \\u00a7 13-401 to -412. By contrast, 28-1381(D) offers an exception to being found guilty under 28-1381(A)(3) when a defendant takes medication as prescribed. Section 28-1381(D) is vastly different in focus and scope than any of the Chapter 4 justification defenses in the Criminal Code.\\n\\u00b6 19 Moreover, Chapter 4 justification defenses only apply to charges under the Criminal Code; they do not apply to the Title 28 charges Fannin is facing. See State v. Fell, 203 Ariz. 186, 189, \\u00b6 13, 52 P.3d 218, 221 (App.2002) (\\\"[T]he legislature has not seen fit to extend [Chapter 4] justification defenses, including the necessity defense, to Title 28 offenses.\\\"). The parties do not cite, and we have not found, any Arizona ease recognizing any justification defense outside of Chapter 4 of the Criminal Code or any justification defense applicable to any charge made outside of the Criminal Code. See also id. at 189, \\u00b6 12, 52 P.3d at 221 (noting defendant did \\\"not cite, nor have we found, any Arizona case in which a justification defense has been used to defend against a non-Title 13 [Criminal Code] charge.\\\"). For these reasons, we conclude 28-1381(D) is not a justification defense.\\niii. Affirmative Defenses\\n\\u00b6 20 An affirmative defense is \\\"a defense that is offered and that attempts to excuse the criminal actions of the accused.\\\" A.R.S. \\u00a7 13-103(B). On its face, 28-1381(D) excuses otherwise criminal conduct by a defendant. When the requisite facts are established, 28-1381(D) provides that a defendant who violates 28-1381(A)(3) is excused from that violation and found \\\"not guilty.\\\" That is precisely what an affirmative defense does. See A.R.S. \\u00a7 13-103(B).\\n\\u00b6 21 Unlike justification defenses, affirmative defenses may be found outside of the Criminal Code. See A.R.S. \\u00a7 13-103(A) (affirmative defenses may be contained in the Criminal Code \\\"or under another statute or ordinance\\\"). By this express statutory directive, affirmative defenses may apply to Title 28 offenses like the 28-1381(A)(3) charge Fannin is facing.\\n\\u00b6 22 Finally, 28-1381(D) is an exception appearing in a different subsection than 28-1381(A)(3). A defendant \\\"who relies upon an exception to a criminal statute made by a proviso or distinct clause has the burden of establishing and showing that she comes within the exception.\\\" In re Appeal in Maricopa County Juvenile Action No. JT9065297, 181 Ariz. 69, 82, 887 P.2d 599, 612 (App.1994) (citing cases); see also State v. Jung, 19 Ariz.App. 257, 262, 506 P.2d 648, 653 (1973) (\\\"[T]he state is not required to [prove] negative statutory exceptions \\u2014 such exception is a matter of defense where it is not an ingredient of the offense.\\\"); accord Hammonds, 192 Ariz. at 532, \\u00b6 12, 968 P.2d at 605 (noting, in dicta, statutory predecessor to 28-1381(D) \\\"is an affirmative defense to a charge of driving with a drug or metabolite in the body.\\\"). For all of these reasons, we hold 28-1381(D) is an affirmative defense.\\nCONCLUSION\\n\\u00b6 23 Given the language of A.R.S. \\u00a7 28-1381(D), the limited nature of justification defenses in Chapter 4 and the other relevant statutory definitions in the Criminal Code, we hold 28-1381(D) is an affirmative defense. The superior court properly found 28-1381(D) sets forth an affirmative defense, requiring Fannin to prove by a preponderance of the evidence that he used prescription drugs as prescribed by a licensed medical practitioner. Accordingly, although we accept jurisdiction, we deny relief.\\nCONCURRING: DIANE M. JOHNSEN, Presiding Judge.\\n. Absent material revisions, we cite the current Westlaw version of applicable statutes.\\n. \\\"A person using a drug as prescribed by a medical practitioner licensed pursuant to title 32, chapter 7, 11, 13 or 17 is not guilty of violating subsection A, paragraph 3 of this section.\\\" A.R.S. \\u00a7 28-1381(D).\\n. Although the parties also cite Arizona Rules Of Procedure for Special Actions 8(a), that rule cannot expand appellate jurisdiction beyond any statutory grant. See Avila, 147 Ariz. at 334, 710 P.2d at 444.\\n. No judgment was entered by the superior court. See A.R.S. \\u00a7 12-2101 (A)(1) (authorizing appeal '[fjrom a final judgment entered in a[] . special proceeding commenced in a superior court\\\"); (A)(4) (authorizing appeal from final order \\\"after judgment\\\"). The superior court's minute entry discusses what should happen at trial \\\"if [Fannin] chooses to use the defense provided\\\" in 28 \\u2014 1381 (D), but does not finally decide the case or any claim or defense. Accordingly, it is unclear whether the minute entry is an appealable \\\"final order affecting a substantial right made in a special proceeding.\\\" A.R.S. \\u00a7 12-2101 (A)(4); see also In re Approximately $50,000.00 In U.S. Currency, 196 Ariz. 626, 628, \\u00b6 5, 2 P.3d 1271, 1273 (App.2000) (construing predecessor statute; noting \\\"final order is one that disposes of the case, leaving no question open for the court's determination\\\") (citing McAlister v. Citibank (Arizona), 171 Ariz. 207, 829 P.2d 1253 (1992)). Finally, even after entry of judgment by the municipal court, neither party would have an appeal to this court as of right. A.R.S. \\u00a7 22-375(A).\\n. The record indicates the City of Phoenix alone prosecuted nearly 650 charges under 28-1381(A)(3) in the twelve months ending May 1, 2011, each of which could implicate 28-1381(D).\\n. We reject Fannin's contention that justification defenses and defenses that deny an essential element or responsibility are one type of defense, not two. By statute, these defenses are separated by the disjunctive \\\"or,\\\" meaning they are two separate types of defenses. A.R.S. \\u00a7 13-103(B).\\n. The \\\"denies responsibility\\\" examples in 13-103(B) are not exclusive. Lack of a \\\"voluntary act\\\" and \\\"mere presence\\\" are other potential defenses denying responsibility. See A.R.S. \\u00a7 13-201 (proof of \\\"voluntary act\\\" is a \\\"minimum requirement for criminal liability\\\"); State v. Noriega, 187 Ariz. 282, 284-87, 928 P.2d 706, 708-11 (App.1996) (discussing \\\"mere presence doctrine\\\"). Each of these \\\"denies responsibility\\\" defenses asserts the State failed to prove a required element of a charged offense by proof beyond a reasonable doubt, not (as Fannin argues) that a defendant simply is not responsible for his or her actions.\\n. Fannin cites comments from this same non-legislator addressing 1992 amendments to 28-1381(D). Those statements were ambiguous at best, predate the 2006 amendments to 13-205 and are entitled to no weight. Hayes, 178 Ariz. at 269-70, 872 P.2d at 673-74.\"}"
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+"{\"id\": \"4211153\", \"name\": \"The STATE of Arizona, Appellee, v. Demetrio MADRID, Appellant\", \"name_abbreviation\": \"State v. Madrid\", \"decision_date\": \"1970-04-28\", \"docket_number\": \"No. 2017\", \"first_page\": \"534\", \"last_page\": \"537\", \"citations\": \"105 Ariz. 534\", \"volume\": \"105\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:03:45.407605+00:00\", \"provenance\": \"CAP\", \"judges\": \"UDALL and HAYS, JJ., concur.\", \"parties\": \"The STATE of Arizona, Appellee, v. Demetrio MADRID, Appellant.\", \"head_matter\": \"468 P.2d 561\\nThe STATE of Arizona, Appellee, v. Demetrio MADRID, Appellant.\\nNo. 2017.\\nSupreme Court of Arizona, In Division.\\nApril 28, 1970.\\nGary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., for appellee.\\nRobert Wertsching, Phoenix, for appellant.\", \"word_count\": \"1521\", \"char_count\": \"9402\", \"text\": \"McFarland, justice:\\nAppellant Demetrio Madrid, hereinafter referred to as the defendant, was tried and convicted on the first count for burglary in the first degree, and assault with a deadly weapon on the second count, and was sen-' tenced to serve fifteen to twenty years in the Arizona State Penitentiary on each count, to run concurrently. From his conviction and sentence he appeals.\\nDefendant was represented throughout all the proceedings by the office of the Public Defender. On the day fixed for trial \\u2014 August 26, 1968 \\u2014 after several prior postponements, the defendant personally asked for a continuance, and requested substitution of counsel. He expressed extreme dissatisfaction with the several attorneys who had worked on his case, and he was of the opinion that he would not receive proper representation from anyone in the Public Defender's office. The County Attorney strenuously objected, and understandably so, since he was prepared for trial and had his witnesses present.\\nThe defendant not only moved for substitution of attorneys, but also requested that Henry Florence, Esq., a member of the Bar in private practice, be appointed to represent him. It is needless for our purpose here to embark upon a discussion as to whether an indigent defendant's right to counsel extends to the point that he may hand-pick an assigned attorney, because the court granted Madrid's motion. Fol lowing is a portion of the trial judge's oral -decision:\\n\\\"We will, therefore, unless you provide your own attorney, relieve the Public Defender's Office from further responsibility, and appoint counsel from the list available here in Maricopa County of practicing attorneys. At your request, we will first attempt to ascertain whether Mr. Florence is willing to represent you as the appointed attorney. If not, we will then appoint one of the others from the list which you have heard.\\\"\\nApparently Mr. Florence was willing ;td undertake Madrid's defense because by.minute entry of the same day, August 26, the court formally appointed him attorney for the defendant, and relieved the Public Defender from all further responsibility. However, two days later the Public Defender filed a motion for reconsideration of the court's order \\u2014 and requested that the Public Defender be re-appointed as Madrid's attorney. Why the Defender would seek to regain a recalcitrant, dissatisfied client does not appear in the record. In any case, on September 18, 1968, after a hearing, and over the objections of Madrid, the court granted the Public Defender's motion. At the subsequent trial the Public Defender did represent Madrid, although the defendant continued his objection to the arrangement. On this appeal he is represented by assigned counsel other than the Public Defender.\\nMadrid's newly-appointed attorney did not participate in the proceedings on the Public Defender's motion, choosing to leave the entire matter to the discretion of the court. However, the County Attorney actively joined the Public Defender in urging the court to grant the motion. It is understandable that the State should oppose the original motion for substitution and the resulting continuance, since it was prepared to try the case on that date. But for the. prosecution to participate in the selection or rejection of its opposing counsel. jg unseemly if . fop no. other reason than the distasteful impression which could be conveyed.\\nThe record shows that a copy of the motion for re-examination and determination of counsel was mailed to Henry Florence, defendant's attorney of record; however, it does not show whether he was notified of the date of the hearing. Both the Public Defender and the County Attorney appeared in support of the motion, but Defendant's attorney was not present at the hearing, as is shown by the record:\\n\\\"THE COURT: The record indicates that Mr. Florence was appointed, and I assumed he would be speaking for the Defendant in relation to this motion also. Have you had any contact with him?\\n\\\"MR. NICHOLLS: I haWt had any contact with Mr. Florence\\n\\\"THE COURT: Does he have any intention of being here ?\\n\\\"M\\u00cdL CRAMPTON: Your Honor, I have spoken very briefly with Mr. Florence, and it' was his position that he would wait until alter, the result' .of \\\"this motion, and he was not particularly interested in participating in this proceedings.\\n\\\"THE COURT: Is the Defendant present ?\\n\\\"MR. NICHOLLS: Yes, the Defendant is present.\\n\\\"THE COURT: Very well. We'll hear such matters as you wish to present.\\\"\\nThe defendant was thereafter sworn and testified in his own behalf, setting forth his reasons why the motion should not be granted. The question of representation of counsel at critical stages of a proceeding is a constitutional right. In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the Court stated:\\n\\\"As early as Powell v. Alabama, supra, [287 U.S. 45, 77 L.Ed. 158, 53 S.Ct. 55, 84 A.L.R. 527] we recognized that the period from arraignment to trial was 'perhaps the most critical period of the proceedings\\nThe court in the instant case should have required the presence of the defendant's attorney of record before proceeding. However, in the instant case we do not need to reach the constitutional question of whether the hearing without representation was a violation of the 14th Amendment to the Constitution of the United States, because the proceeding was a nullity.\\nIn Smith v. Superior Court, 68 Cal.2d 547, 440 P.2d 65, in an analagous situation to that presented here, it was held that the dismissal of assigned counsel over the objection of the defendant was beyond both the statutory and inherent powers of the court. In coming to this conclusion, the court said:\\n\\\"Nevertheless we must consider whether a court-appointed counsel may be dismissed, over the defendant's objection, in circumstances in which a retained counsel could not be removed. A superficial response is that the defendant does not pay his fee, and hence has no ground to complain as long as the attorney currently handling his case is competent. But the attorney-client relationship is not that elementary: it involves not just the causal assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney. This is particularly essential, of course, when the attorney is defending the client's life or liberty. Furthermore, the relationship is independent of the source of compensation, for an attorney's responsibility is to the person he has undertaken to represent rather than to the individual or agency which pays for the service. (See generally, California Criminal Law Practice (Const.Ed.Bar 1964), \\u00a7 1.46, pp. 38-39.) It follows that once counsel is appointed to represent an indigent defendant, whether it be the public defender or a volunteer private attorney, the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted and invidious discrimination arising merely from the poverty of the accused.\\\"\\nWe are sure there would have been no doubt as to the outcome here had Mr. Florence been \\\"newly retained\\\" counsel rather than \\\"newly assigned.\\\"\\nFurthermore, as we previously said, it is the opinion of this Court that the entire proceeding was void, and the court had no jurisdiction to entertain the Public Defender's motion. On August 26, the Public Defender was officially dismissed from the case, and the newly-appointed attorney was substituted. The rule is stated in 7 C.J.S. Attorney and Client \\u00a7 124, as follows:\\n\\\"The effect of a substitution is to preclude the original attorney from acting further in the cause, and to vest in the substituted attorney all the rights and powers, and to impose on him all the duties, of his predecessor.\\\"\\nThus, on August 28, the Public Defender was not a party to the proceedings, nor an attorney of record, and thereby had no standing to make the motion. In effect, the motion was a nullity, and the order based thereon was an excess of the court's jurisdiction. Union Carbide Corporation v. Filtrol Corporation, 278 F.Supp. 553, 557 (D.C.Cal.); Chase v. Superior Court, 210 Cal.App.2d 872, 27 Cal.Rptr. 383; Mar-shank v. Superior Court, 180 Cal.App.2d 602, 4 Cal.Rptr. 593; Lavaysse v. Superior Court, 63 Cal.App.2d 223, 146 P.2d 686. Therefore, the re-appointment of the Public Defender was invalid. Mr. Florence was, and is, the attorney of record for Madrid, and all the proceedings which followed his appointment, and in which he did not participate, must be invalidated.\\nWe cannot speculate that the outcome of the trial would have been .any different had the assigned counsel participated. Nor do we imply' any criticism of the Public Defender, \\u2022 particularly under the difficult circumstances of dealing with an uncooperative client.\\nBecause of our disposition of this matter, it is unnecessary to consider the defendant's other contentions on this appeal.\\nReversed and remanded for a new trial.\\nUDALL and HAYS, JJ., concur.\"}"
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+"{\"id\": \"4212277\", \"name\": \"STATE of Arizona, Appellee, v. Gaspar V. PEREDA, Appellant\", \"name_abbreviation\": \"State v. Pereda\", \"decision_date\": \"1974-12-13\", \"docket_number\": \"No. 2844\", \"first_page\": \"344\", \"last_page\": \"347\", \"citations\": \"111 Ariz. 344\", \"volume\": \"111\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T17:49:21.830710+00:00\", \"provenance\": \"CAP\", \"judges\": \"HAYS, C. J., CAMERON, V. C. J., and LOCKWOOD and HOLOHAN, JJ., concur.\", \"parties\": \"STATE of Arizona, Appellee, v. Gaspar V. PEREDA, Appellant.\", \"head_matter\": \"529 P.2d 695\\nSTATE of Arizona, Appellee, v. Gaspar V. PEREDA, Appellant.\\nNo. 2844.\\nSupreme Court of Arizona, In Banc.\\nDec. 13, 1974.\\nGary K. Nelson, Former Atty. Gen. by Frank T. Galati, Asst. Atty. Gen., N. Warner Lee, Atty. Gen., Phoenix, for appellee. Paul Hunter, Yuma, for appellant.\", \"word_count\": \"1464\", \"char_count\": \"8721\", \"text\": \"STRUCKMEYER, Justice.\\nAppellant, Gaspar Pereda, was convicted of kidnapping in violation of A.R.S. \\u00a7 13-491 by jury of the Superior Court of Yuma County, and appeals.\\nThose facts necessary for the determination of this appeal establish that a complaint was filed charging Pereda with kidnapping and that a preliminary hearing was held thereon at which Pereda was held to answer to the Superior Court. The victim of the alleged kidnapping was one Mike Brader. He was the State's principal witness at the preliminary hearing. Brad-er did not testify in person at the trial. In lieu thereof, his testimony at the preliminary hearing was read to the jury, over the objection of appellant.\\nWhile there are other grounds of appeal, we think they need not be answered, since it is our conclusion that the court erred in admitting Brader's preliminary hearing testimony and that, consequently, a new trial must be ordered.\\n' Both the Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, and Article II, \\u00a7 24 of the Arizona Constitution guarantee a defendant the right to confront his accusers and witnesses at trial. This guarantee assures the accused of the opportunity\\n\\\"not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 [411] (1895).\\\" Barber v. Page, 390 U.S. 719, 721, 88 S. Ct. 1318, 1320, 20 L.Ed.2d 255, 258 (1968).\\nBarber v. Page recognized the traditional exception to the rule of confrontation at trial in a situation where an unavailable witness has previously given testimony at a judicial proceeding subject to cross-examination and Arizona has also recognized this exception. 17 A.R.S., Rules of Criminal Procedure (1956), Rule 30, provided:\\n\\\"B. When a witness has been examined as provided in Rule 23 and his testimony-taken as provided in Rule 28, such testimony may be admitted in evidence if for any reason the testimony of the witness cannot be obtained at the trial and the court is satisfied that the inability to procure such testimony is not due to the fault of the party offering it.\\\" (Emphasis supplied)\\nThe inquiry in the present case is whether the inability to procure the witness Brader's testimony- was due to the fault of the State. This Court has announced that \\\" it must be made to appear by competent evidence that such witness is either dead or beyond the jurisdiction of the court,\\\" Valuenzuela v. State, 30 Ariz. 458, 461, 248 P. 36, 37 (1926). Furthermore, such evidence must establish that the witness had been subpoenaed and his nonappearance at the trial was in no way the fault of the State, State v. Dixon, 107 Ariz. 415, 489 P.2d 225 (1971). If a witness cannot be served by subpoena, it then becomes a matter within the sound discretion of the trial court to determine whether a sufficient effort has been made to place the witness under subpoena. State v. Owens, 103 Ariz. 541, 447 P.2d 233 (1968).\\nIn Owens, w\\u00e9 commented that although the evidence that the witness was beyond the jurisdiction of the court was slight, it was still sufficient to sustain the-discretion of the trial court. We are compelled, however, to regard the factual evidence of a good faith attempt and failure to subpoena a witness in Owens, as the outer limit of a court's discretionary judgment. In that case, the witness Graves, an itinerant laborer, had recently been released from custody following a mistrial in a proceeding in which he and Owens had been co-defendants. A subpoena was issued and given to a detective sergeant of the Yuma Police Department who twice visited the area where Graves was known to live, although he had no fixed abode. The subpoena was then turned over to a Yuma County Deputy Sheriff who again visited the area, talked to a number of people and concluded that Graves had left town, probably for California. The fact that Graves was an itinerant worker with no fixed place of abode, no place of business, and a suspected accomplice recently released from custody, gave credence to the trial court's conclusion that he had probably left the area. These facts coupled with the efforts of the police and sheriff's department personnel to personally serve the subpoena indicated that the trial court had not abused its discretion in concluding that a good faith effort had been made by the State to subpoena Graves and that he was unavailable as a witness.\\nIn the instant case, no such effort is apparent. Evidence of the State's efforts to subpoena Brader consisted of the testimony of Willfred Bouley, an agent of the Department of Public Safety, and James Clark, a Deputy County Attorney. In sharp contrast to the efforts made to secure the witness in Owens, Clark testified that in this case subpoenas were sent to every county in Arizona except Maricopa, even though he knew that the witness had a known address in Maricopa County, maintained a one-half interest in a business there, and had been previously served with a subpoena there. Clark explained that the State's failure to send a subpoena to the Sheriff of Maricopa County was due to their belief that agent Bouley could best serve the subpoena and that also there was a clerical error in the Yuma County Attorney's Office.\\nBouley testified that his efforts to serve Brader consisted solely of a series of thirteen telephone conversations with Brader's parents and two telephone conversations with Brader. Bouley did not go to the parents' house in Maricopa County, even though the subpoena listed the house as Brader's address. In addition, Bouley made no attempt to determine whether Brader had a public utility hookup or telephone service. Nor did Bouley visit Brader's place of business, also within Maricopa County. Both Clark and Bouley testified that they were sure the witness was in fact residing in Maricopa County.\\nBerger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969), is a case very similar to the instant one. In Berger, the Supreme Court held that a kidnapping conviction must be reversed where the absent victim did not personally testify but his testimony given at the preliminary hearing was read into the record. No subpoena was served; the state investigator merely telephoned the witness' relatives and employer and determined from their responses that the witness was outside California. In the instant case, no attempt was made to contact the witness Brader at his place of employment; an infirmity beyond those noted in Berger which otherwise parallel the efforts to secure the witness noted in this case.\\nWe find, as revealed in the record, that the State's attempts to locate Brader and serve him with a subpoena' fall far short of the requisite steps necessary to sustain the trial court's finding of a good faith effort.\\nNor are we impressed with the State's argument that a previous subpoena for Brader, addressed to the Maricopa County Sheriff's Office, had been issued and not served. This subpoena was not filed with the Clerk of the Superior Court of Yuma County until April 25, 1973, the day after the trial. The letter attached to the subpoena contains six handwritten dates, followed by the initials of some unknown person, with the inscription \\\"returned unserved \\u2014 no one home at this location.\\\" We do not consider that this letter is evidence of a good faith attempt to locate the witness. Valuenzuela, supra, stated that such effort \\\"must be shown by relevant and competent evidence.\\\"\\nIn Inspiration Consolidated Copper Co. v. Bryan, 31 Ariz. 302, 311, 252 P. 1012, 1015-1016 (1927), we said:\\n\\\" such preliminary proof should be made by witnesses testifying in the trial, and confronted and cross-examined by the opposite party. The decision must necessarily be based on the evidence appearing before the court at the time .\\\"\\nThe subpoena and letter, with its cryptic dates and initials, filed on April 25, 1973, were clearly not competent evidence to support the court's finding that the inability to locate the witness was not the fault of the State.\\nReversed and remanded for new trial.\\nHAYS, C. J., CAMERON, V. C. J., and LOCKWOOD and HOLOHAN, JJ., concur.\"}"
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+"{\"id\": \"4214128\", \"name\": \"MIDLAND-ROSS CORPORATION, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, and Leonard Fimbres, Respondents\", \"name_abbreviation\": \"Midland-Ross Corp. v. Industrial Commission\", \"decision_date\": \"1971-07-15\", \"docket_number\": \"No. 10268-PR\", \"first_page\": \"311\", \"last_page\": \"314\", \"citations\": \"107 Ariz. 311\", \"volume\": \"107\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T23:34:49.417455+00:00\", \"provenance\": \"CAP\", \"judges\": \"HAYS, V. C. J., and UDALL and LOCKWOOD, JJ., concur.\", \"parties\": \"MIDLAND-ROSS CORPORATION, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, and Leonard Fimbres, Respondents.\", \"head_matter\": \"486 P.2d 793\\nMIDLAND-ROSS CORPORATION, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, and Leonard Fimbres, Respondents.\\nNo. 10268-PR.\\nSupreme Court of Arizona, In Banc.\\nJuly 15, 1971.\\nJohn S. Schaper, Phoenix for petitioner.\\nMeadow, Thrasher & Zalut, Phoenix, for respondent Fimbres.\\nDonald L. Cross, Chief Counsel, Phoenix, for respondent Industrial Commission.\", \"word_count\": \"1734\", \"char_count\": \"10404\", \"text\": \"STRUCKMEYER, Chief Justice.\\nThis case is before us on a petition to review a decision of the Court of Appeals, 13 Ariz.App. 237, 475 P.2d 527. Opinion of the Court of Appeals vacated; award of the Industrial Commission affirmed.\\nAn employee of the Midland-Ross Corporation, Leonard Fimbres, suffered a compensable injury on December 2, 1965. Later he underwent surgery for a spinal fusion and the removal of a herniated disc. After his condition stabilized, the Commission found that he had a 10% physical functional disability, and ordered him to try to find and keep a job. He returned to his former job as a production welder at his former wage, and performed his duties satisfactorily for several months. During that time he endured a great deal of pain, and a fellow worker did much of the lifting for him. But when he attempted to lift a casting on which he was working, he became totally disabled again for a short period of time.\\nA hearing was held by the Commission for the purpose of making \\\"inquiry concerning applicant's earning capacity as affected, if any, by his accepted industrial injury of December 2, 1965.\\\" Due notice was given to the self-insured employer, whose counsel attended the hearing and subjected the employee and each of his witnesses to vigorous cross-examination.\\nThe doctor testified that lifting castings weighing from 15 to 50 pounds, and repeated bending to pick them up from the floor, made the job unsuitable and improper in view of the operation the employee had undergone. He suggested lighter work or an assistant to do the lifting. He also thought that the problem might be solved by vocational rehabilitation of the employee so that he could qualify for work that required no lifting or bending. Claimant, acting under his doctor's advice, had enrolled in a TV repair course at Maricopa Technical College prior to the hearing. While attending school there, he did part-time bartending on weekends, and drove a light delivery truck for an electronic parts distributor.\\nAt the hearing, the employer, although fully advised of its purpose, introduced no evidence regarding possible jobs available to the employee. At the conclusion of the hearing, when the referee announced that the case would be considered submitted, the employer still offered no evidence of job opportunities, and did not ask for addition al time to submit evidence contradicting Fimbres' testimony.\\nThis last hearing was held on August 20, 1969. The Commission made its findings and award on September 26, 1969, which were that the employee had a 52.8% loss of earnings and that he should receive $185.40 per month compensation until further order of the Commission. The award also ordered the employer to pay the back compensation due, but unpaid, since September, 1967.\\nThe employer filed a Petition for Hearing on the grounds that the employee was able to earn more than the earnings used by the Commission to determine loss of earning power because he had not actively sought full-time employment in the open labor market, and that evidence should be introduced regarding the actual earning power of the employee. Meanwhile, both parties agreed on a lump sum settlement of $6,500. This was acceptable to the employer, since it was much less than the award. The Commission, however, refused to sanction the settlement.\\nIn response to the employer's Petition for Hearing, the referee wrote to counsel on January 14, 1970, as follows:\\n\\\"It is not my desire to foreclose the presentation of further evidence if justified under all of the circumstances. However, I do not feel that it would be fair to applicant to prolong final action if further hearing would result only in rehashing matters already brought out in evidence. I would appreciate your advising me of the witnesses you wish to subpoena indicating what they will testify to, in order that I may decide course of action that would be appropriate. Since it appears that applicant is capable of doing light welding work, perhaps counsel might ascertain what a reasonable wage would be in this employment with limited bending and stooping and weight lifting.\\\"\\nInstead of accepting the referee's suggestion, counsel wrote the referee a three-page letter arguing the legal aspects of the case. The only responsive part is the following :\\n\\\"However, the carrier feels that it would be better for the commission to consider evidence of the availability of work in the open labor market and the potential earnings therefrom in this case, rather than to calculate an earning capacity loss based upon income from a job which does not represent claimant's employability in the open market. It is the desire of the carrier to present expert testimony in that regard. I would anticipate that this testimony would be presented by Mr. Beeman, or by some person having similar qualification in the Maricopa County area in the field of job analysis and opportunities.\\\"\\nThe referee considered the reply to be too vague to comply with the Commission's Rule 38(C) requiring an application for a rehearing to set out in detail the nature of the evidence, the names and addresses of the witnesses to be called, the exhibits to be offered, and a full statement why such material could not have been introduced prior to the award. He therefore recommended that the petition be denied, and the Commission denied it. This appeal followed.\\nThe employer first contends there is a presumption from the employee's return to, and satisfactory performance of, his job, that there was no loss of earning capacity. He also contends that there is insufficient evidence to overcome that presumption. As to this, in Maness v. Industrial Commission, 102 Ariz. 557, 434 P.2d 643, we indicated that there is such a presumption where the return to work is under normal conditions. However, in the instant case, the return to work was accompanied by almost constant pain and a co-employee did much of the lifting. Moreover, the employee's doctor advised against a continuance of these conditions of labor. The presumption must retire in the face of positive evidence. In Maness, the Commission specifically found that the pain \\u00e1nd suffering of the employee, upon return to work, was not severe enough to reduce his earning capacity. In the instant case, there is no such finding. All evidence in the record supports the opposite conclusion.\\nIt is argued that the Workmen's Compensation laws are not designed to pay for pain and suffering. This, of course, is true, in the sense that one who returns to work after an accident,' and is able to work without pain, will not receive compensation for the pain he underwent while lie was disabled. But that principle does not mean that a man is bound to his job under circumstances that his work becomes intolerable. The evidence in this case is more than adequate to prove that- a continuance in the employee's job was both painful and might involve further injury.\\nThe employer's second contention is that even though the employee could not continue in the same job, it was improper to consider his wages at part-time work while going to school as a proper figure to compare with his former wage in ascertaining wage loss from the injury. As the employer puts it, the employee is not entitled to disability benefits when he voluntarily \\\"takes himself out of the labor market to pursue an educational program.\\\" We agree with the principle as a generality, but not with its application to this employee. The evidence is uncontradicted that his departure from the labor market was not voluntary and that if permitted to complete another year of the TV repair course, his earnings would probably exceed what he had previously earned. This would end the claim for continuing benefits. If we assume that the claimant could continue as a welder, working only part time without an assistant, or with an assistant, his earnings would necessarily be reduced to some extent. There is, of course, no evidence that work of such a nature was available. In part, the employer indicated that it was to this point it desired to offer evidence on rehearing. This brings us to the final contention of the employer.\\nThe employer complains that he was was prevented from offering such evidence. We do not consider that its position is well taken. The employer made no attempt to offer any evidence at the hearing held for that specific purpose. He attended that hearing and took an active part in it. He did not ask for time to produce such evidence. He chose to wait until the decision was rendered. Not until after the case was decided did he ask to reopen for the purpose of introducing evidence that there were jobs in Phoenix that would pay more than the employee was earning while attending classes. The Commission's refusal to reopen was justified. The record shows that the employee had not received any compensation since 1967 and that the volume of the Commission's business is large. The hearing requested by the employer could take months before the opportunity for another hearing occurred. Where a party does not act with diligence to elicit the truth, he may properly be denied the opportunity later.\\nSince there was no evidence as the record now stands of loss of earnings, except for the evidence which the employee introduced, the Commission's findings and award are eminently correct. Should the employer comply with the award and pay the employee the compensation which is in arrears, it may at some future time file for a reopening as to future loss of earnings. Evidence may then be offered to show that conditions have changed and so prove that the earnings loss as set by the award is not a fair measure. This, however, does not affect the award up to the time of such new hearing.\\nOpinion of the Court of Appeals vacated. The findings and award of the Industrial Commission are affirmed.\\nHAYS, V. C. J., and UDALL and LOCKWOOD, JJ., concur.\\nNOTE: Justice JAMES DUKE CAMERON did not participate in the determination of this matter.\"}"
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diff --git a/arizona/4816992.json b/arizona/4816992.json
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+"{\"id\": \"4816992\", \"name\": \"HORACE P. MERRILL, Appellant, v. PETER GORDON, Appellee\", \"name_abbreviation\": \"Merrill v. Gordon\", \"decision_date\": \"1914-05-06\", \"docket_number\": \"Civil No. 1362\", \"first_page\": \"521\", \"last_page\": \"533\", \"citations\": \"15 Ariz. 521\", \"volume\": \"15\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:22:59.805591+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HORACE P. MERRILL, Appellant, v. PETER GORDON, Appellee.\", \"head_matter\": \"[Civil No. 1362.\\nFiled May 6, 1914.]\\n[140 Pac. 496.]\\nHORACE P. MERRILL, Appellant, v. PETER GORDON, Appellee.\\n1. Landlord and Tenant\\u2014Agreement for Lease\\u2014Action for Damages.\\u2014For breach of an agreement for a lease, a party may either treat the agreement as rescinded and sue for damages, or treat the contract as continuing and sue for speeifie performance, or repudiate the contract and sue for recovery of any advance payments made.\\n2. Landlord and Tenant\\u2014Establishment of Relation\\u2014Execution of Lease.\\u2014It is only where a lease has actually been made that the relation of landlord and tenant is established.\\n3. Landlord and Tenant\\u2014Withholding Possession\\u2014Ejectment.\\u2014 When the relation of landlord and tenant exists, the lessee may maintain ejectment against any person, including the lessor, who wrongfully withholds possession of the demised premises.\\n[For what property, or invasion of possession, ejectment is maintainable, see note in 116 Am. St. Rep. 568.]\\n4. Landlord and Tenant\\u2014Liability for Rent\\u2014Possession.\\u2014Delivery of possession of the demised premises by the lessor to the lessee is necessary to the lessee\\u2019s obligation to pay rent; and the rule is the same whether the lessor refuses or is unable to give possession.\\n5. Payment\\u2014Recovery\\u2014Voluntary Payment.\\u2014Plaintiff, after an agreement with defendant for a lease if he should purchase the stock of the then lessee, pending negotiations for such purchase, sent to defendant the amount of the advance payments, and thereafter, pending, and apparently in aid of his suit against the former lessee and the purchaser of his stock for possession of the store under his alleged lease from defendant, and upon advice of counsel that it was necessary to do so in order to maintain that suit, sent the rental each month for more than a year, specifying it as rental for each month, amounting in all to $2,240. Defendant denied any lease, offered to hold the money for plaintiff, or to return it to him, and, after plaintiff\\u2019s negotiation for the purchase of the stoek fell through, and after his own sale and conveyance of the premises, cashed the checks. Held, in an action to recover such payments, that, as plaintiff voluntarily paid the money with a full knowledge of all the facts, though no obligation thereto existed, he could not recover; defendant\\u2019s statement, on demand for repay ment, that he owed plaintiff being immaterial as a conclusion of law, and without consideration.\\n6. Payment\\u2014Question for Jury\\u2014Voluntary Payment.\\u2014Whether a payment was made voluntarily or not is a question of law, where the facts are undisputed.\\n[As to recovery of money voluntarily paid, see note in 94 Am. St. Eep. 408.]\\nAPPEAL from a judgment of the Superior Court of the County of Cochise. Fred Sutter, Judge.\\nJudgment reversed, with directions to dismiss complaint.\\nThe facts are stated in the opinion.\\nMr. John B. Wright, for Appellant.\\nMr. J. E. Morrison, Messrs. Doan & Doan, and Mr. Robert E. Morrison, for Appellee.\", \"word_count\": \"4966\", \"char_count\": \"28469\", \"text\": \"ROSS, J.\\nThe appellee was the plaintiff below, and the appellant was the defendant. The suit was instituted by plaintiff to recover of defendant the sum of $2,240, claimed to be owing upon the following remarkable state of facts:\\nDefendant, who resides at Benson, Cochise county, was the owner of a store building in Jerome, Yavapai county. One Lubin, a dry-goods merchant, had been his tenant for a number of years. Plaintiff, Gordon, who was Lubin's brother in law, had been in the latter's employ as a- clerk in and about his mercantile business. About the 7th of March, 1911, while defendant was visiting in Jerome, Lubin informed him that he had sold, or was about to sell, his business to plaintiff, and requested defendant to make a lease of store building to Gordon. Plaintiff also talked with defendant of his purchase or proposed purchase of stock of goods, and of a lease of the store building. Lubin and defendant testified that the latter agreed to lease the building to anyone to whom a sale was made. Plaintiff testified that defendant agreed to lease building to him. As to length and terms of lease, it was agreed that plaintiff should make, in writing, his proposition to defendant, which he did on March 9, 1911, by mailing his proposition to defendant at Benson. Receiving no response from defendant, Merrill, on March 21st plaintiff wired him: \\\"About to close deal with Lubin. ITow about lease?\\\" De fendant answered message on same day by wire, stating that plaintiff could have building on same terms as Lubin had had it, but rejecting plaintiff's proposition of the 9th, stating that he was writing explanation. On same day, March 21st, defendant wrote plaintiff a proposition of lease for a term of \\\"one, two or three years\\\" at $140 per month, to be secured by bond, or, in lieu of a bond, the payment of \\\"the last three months' rent in advance; that is, $420.00.\\\" This proposition was received by plaintiff at Jerome on March 24th, whereupon he deposited with the Branch Bank of Jerome the sum of $420, with instructions. The bank on same day wired defendant that plaintiff had made deposit, with instruction to credit his account upon receipt of three year lease. March 27th plaintiff wired defendant of his acceptance of lease, as proposed in letter of the 21st, and that he had made deposit of $420 in bank to his credit. March 28th defendant wrote plaintiff: \\\"I received the wire from the bank regarding the deposit of $420.00 made by you for lease, but I have not accepted it yet, and no lease has been made with anyone. You can leave the deposit there until this row is settled, or you can draw it down. Better leave it there, as I think you and Lubin can get together and patch up the trouble, and then I will give you the lease on terms mentioned. . . . Now, Gordon, if Lubin says it is all right to lease to you, or if he quits business or refuses to lease the place on the terms that you offer to lease it, then I will lease to you, you come right after him, but not before him as long as he treats me right. .\\\" March 31st plaintiff wrote defendant insisting that his acceptance of offer of March 21st entitled him to a lease, and stated that he had employed attorneys to enforce agreement.\\nThe negotiations between Lubin and plaintiff came to naught, and some time in April, 1911, Lubin sold his stock to Brockway & Jones, who took possession of stock and buildings, and continued to hold same.\\nOn April 15th, the day he claimed his lease commenced, plaintiff secured from the bank a cashier's check payable to his order for $560, being the deposit for last three months, and the rent for month from April 15th to May 15th, and, without indorsing the same, sent it to defendant. The same action was taken with reference to rent of next two months. July 15, 1911, defendant mailed these three checks to bank, and \\u2022asked what indorsement the hank would require to have the cheeks cashed and placed to his credit in that bank. The bank called plaintiff's attention to this communication, whereupon plaintiff indorsed the checks, and caused his attorney to return them to defendant. On July 24th defendant wrote plaintiff's attorney acknowledging receipt of cashier's checks indorsed to him, for a total sum of $980, and in this letter he said: \\\" I hereby notify you and Peter Gordon that I absolutely refuse to accept these checks as payments for any rents, or as payments on any lease that Gordon may claim on my property, and I unconditionally and absolutely repudiate and refuse to acknowledge that Peter Gordon has any lease or any right to occupy my store building in Jerome. . I will take care of this money for Gordon, and hold it subject to his order, if he wishes me to do so, otherwise I will return it.\\\" The plaintiff's attorney, in a letter dated August 23d, inclosing rent for month ending September 15th, answered the above letter as follows: \\\"You stated that you will take care of the money for Gordon, and hold it subject to his order. May advise that this information came quite awhile after you had accepted the money, and also that any money which belongs to Mr. Gordon can be taken care of by himself. At no time has he indicated that he desires you to look after his money for him.\\\" Plaintiff continued to send checks covering monthly rental until April 16, 1912, and while defendant received the checks, he made no acknowledgment of same after his letter of July 24, 1911. There were fourteen of these checks; thirteen were cashed by defendant on March 25, 1912, and the other one on its receipt soon thereafter.\\nUpon the above facts and some other facts disclosed in the trial, the plaintiff filed a complaint alleging an agreement for a lease, the payment of $420 as assurance that he intended to comply with the terms of the contract, the further payment of $140 per month for thirteen month's from April 15, 1911, the defendant's failure to execute a lease to him, or to give possession, the sale of property by defendant after he had received the sum of $2,240, and his inability by reason thereof to make lease or deliver possession, and demand for repayment, stating, as a reason why he should recover, \\\"that the plaintiff has received no consideration or anything of value from defendant for sums of money so paid.\\\"\\nThe defendant in his answer admits receiving the sum sued for, and that he has failed and refused to return it, and that he has sold and conveyed the property, and cannot execute and deliver any lease or leasehold rights therein to plaintiff or anyone else. As a further answer, he sets forth the facts practically as we have given them, with the explanation that, at the time he wrote proposition of lease on March 21, 1911, he believed that plaintiff had purchased the Lubin stock of goods, and that he first learned on March 24th that the deal between plaintiff and Lubin had been declared off; that his proposition of lease was conditioned upon Lubin's selling to plaintiff, and that he so notified plaintiff upon learning the facts; that on the first day of May, 1911, the plaintiff -instituted an action in the courts of Yavapai county against Lubin and Brockway & Jones, to whom Lubin had in the meantime sold his stock of merchandise, for the possession of the store building, alleging a lease of said property from defendant, beginning April 15, 1911, and that the litigation was pending until October 7, 1912, when it was finally determined against plaintiff; that, pending the litigation in the Yavapai county courts, plaintiff continued to remit to him drafts each month for the payment of rental; \\\"that defendant refused to accept \\u2022any moneys under such alleged lease, and on several occasions had returned to plaintiff the $420 and other monthly payments, with full explanation of the entire situation; that, notwithstanding the above facts, the plaintiff voluntarily would return drafts to defendant and insist that defendant accept the same; that the same were paid by plaintiff to defendant under no mistake of facts by plaintiff whatever, but that the same were voluntary payments made by plaintiff to defendant without fraud, duress or extortion, and with a full knowledge of the facts.\\\"\\nA jury trial was had. The evidence submitted to the jury consisted of what we have detailed above; the statement by defendant that he did not repay that $2,240 \\\"because he did not believe plaintiff could collect it from him, and that the consideration plaintiff received therefor was the right to sue Lubin\\\" for possession of building; and the testimony of plaintiff that he_kept paying defendant lease money pending his suit against Lubin and Brockway & Jones, being advised by his attorney that it was necessary to do so in order successfully to maintain that suit. Practically the only conflict of the evidence arose over what was said by defendant to plaintiff when the latter went to Benson to try to collect the demand. Plaintiff testified that defendant then said to him: \\\"Yes; I know I owe it to you, but I may beat you out of it.\\\" Defendant, when asked if that statement was true, said: \\\"Nothing was said about beating him out of his money at all.\\\" \\\"He said that he would give me six months' time, and I says to him\\u2014he said he would give me six months ' time if I would give him security, and I didn't want to give him a decided answer then.\\\"\\nThe verdict of the jury was against the defendant for the full amount of demand, upon which judgment was entered in favor of plaintiff.\\nThe defendant complains of the judgment for two reasons: (1) That the complaint and all of the evidence show that the plaintiff voluntarily paid the money sued for with a full knowledge of all the facts, and that therefore the complaint does not state a cause of action, nor do the facts make out a case in which he should be permitted to recover; (2) that the court erred in submitting the case to the jury and in its instructions to the jury.\\nGiving full force and effect to all the negotiations between plaintiff and defendant concerning the lease of store building, the most that can be made of it is that it amounted to an agreement for a lease only.\\nProceeding upon the theory that it was nothing more than an agreement for a lease, and that is the theory of the complaint, for a breach of such agreement the plaintiff's remedies were to treat the contract as rescinded and sue for damages, or to treat the contract as continuing and sue for its specific performance. If the terms of the agreement called for any assurance money or any rent money in advance and as a condition of executing the lease, it was incumbent upon plaintiff to make such payment, or make a legal tender thereof. Having done as much, he was in a position entitling him to prosecute either of the above-named remedies, upon a refusal of the defendant to perform his part of the agreement, or, in lieu thereof, if he so chose, he could repudiate the contract and sue in assumpsit to recover advance payments.\\nIt is only where a lease has actually been executed that the relation of landlord and tenant is established. When that relation exists, and \\\"possession of the demised premises is withheld from the lessee, he may maintain an action of ejectment against any person, including the lessor, who so wrongfully withholds the possession from him; or, if possession is withheld by the lessor, or one claiming under him, the lessee may, at his option, repudiate the contract, or bring an action for damages against the lessor for a breach of his agreement. ' ' 24 Cyc. 1051.\\nAt all events, \\\"delivery of possession of the demised premises by the lessor to the lessee is necessary to the obligation to the latter to pay rent; and the rule is the same whether the lessor refuses or is unable to give possession.\\\" 24 Cyc. 1145; Sullivan v. Schmitt, 93 App. Div. 469, 87 N. Y. Supp. 714; Smith v. Barber, 96 App. Div. 236, 89 N. Y. Supp. 317.\\nThe plaintiff was not in possession, he had no lease, and could not maintain a suit for possession, he was under no obligation to pay rent; yet, notwithstanding he was fully informed as to all these facts, and was charged with knowledge of their legal effect, he voluntarily and persistently continued to press upon defendant the assurance money of $420 and the monthly rental for thirteen months against defendant's repeated refusals and protests. These payments (except the assurance money) were made as the rental for the current months from April 15, 1911, to May 15, 1912, and, should the plaintiff have succeeded in obtaining possession of premises as the result of his suit in the Yavapai county courts, or otherwise, these payments could not have been applied in satisfaction of rental for any other months. The plaintiff had directed their application to the payment of the rental for these particular months. What was his purpose in making the payments? Surely not with the idea of recovering the money in case he obtained possession of premises, nor, in that event, of applying the payments on future rent. Plaintiff says he kept on paying rent pending his suit for possession, \\\"being advised by his attorney that it was necessary to do so in order successfully to maintain his suit. ' ' The rental money was therefore avowedly paid in aid of his suit against Lubin, Brockway and Jones for possession of premises. The facts as to the assurance money are in the same situation. Defendant refused not once, but several times, to accept it, going so far as to return the check covering this item, with others for rent, two or three times. He held the cheeks until March 25, 1912, before he cashed them, on which date he cashed thirteen of them, and even after that plaintiff sent him a check for the rent for the month from April 15 to May 15, 1912. _ '\\nClearly, every dollar of this money was paid by plaintiff to defendant without any consideration whatever, and it is equally as clear that it was voluntarily paid with a full knowledge of all the facts. In 2 Parsons on Contracts, ninth edition, section 14, the author says: \\\"When the consideration appears to be valuable and sufficient, but turns out to be wholly false or a mere nullity, or where it may have been actually good, but, before any part of the contract has been performed by either party, and before any benefit has been derived from it to the party paying or depositing money for such consideration, the consideration wholly fails, there a promise resting on this consideration is no longer obligatory, and the party paying or depositing money upon it can recover it back. . . . While it is true that a failure of consideration is a good ground for the recovery of the money paid, it is a familiar and well-settled principle of law that, where a person with full knowledge of all the circumstances pays money voluntarily, and without compulsion or duress of persons or goods, he shall not afterward recover back the money so paid. But money paid by a mistake of fact which causes an unfounded belief of a liability to pay may generally be recovered back, even if the mistake arises from negligence; but not if the mistake affects only the motives of the party in paying the money, and not his obligation.\\\"\\nIn this case the consideration, neither in fact nor law, had the appearance of being \\\"valuable and sufficient,\\\" but was purely and simply in all its aspects voluntary, and against the protest and renunciation of right by defendant was paid to him.\\nCopper Belle Min. Co. v. Gleeson, 14 Ariz. 548, 134 Pac. 285, was a suit by the company in assumpsit for money had and received. After reciting the facts in the ease, Chief Jus tice FRANKLIN said: \\\"With full knowledge of all the facts, without any instrumentality upon the part of Gleeson influencing its action, but in opposition to his wishes, it paid the redemption money into the hands of the sheriff, and took its chances in a lawsuit to quiet title to the property. True, in the action it subsequently brought for such purpose, Gleeson was successful in maintaining the Fitzinauriee location, but that is a matter which the redemptioner should have considered before it parted with the money and took just the title and interest which the San Remo Copper Mining Company had. If the matter turned out very differently from what was expected, the miscalculation is not such a mistake, either of fact or of law, within the meaning of the equitable doctrine, as entitles the disappointed party to any relief. The appellant was in a position to calculate the chances, and it certainly assumed the risks.\\\" In that case we placed this court in the ranks of the great majority of the courts of this country, and held that a voluntary payment with full knowledge of the facts, in the absence of fraud, duress or coercion, could not be recovered back.\\nThe defendant, in his letter of July 24, 1911, acknowledging the receipt of $980, refused unconditionally to accept the same as payment for rent or as payment on'any lease, and said: \\\"I will take care of this money for Gordon and hold it subject to his order, if he wishes me to do so; otherwise I will return it.\\\" Had plaintiff accepted the offer of defendant to act as accommodation bailee or depository of the moneys that were being forced upon him, his action for money had and received probably could be maintained (27 Cyc. 867), in the absence of simulation or fraud between the plaintiff and defendant for the purpose of ousting Lubin, Brockway and Jones from premises, in which ease the courts would refuse aid to both of the wrongdoers, for such they would have been. The plaintiff, however, flatly and most forcibly refused the offer of defendant in this language: \\\"Any money which belongs to Mr. Gordon can be taken care of by himself. At no time has he indicated that he desires you to look after his money for him.\\\" Plaintiff disclaimed ownership of the moneys he was sending defendant, and asserted his ability to care for his own, and rejected the good offices of defendant as keeper for his use and benefit of the very sums that he now sues for as owner. Not only that, hut the plaintiff renounced ownership of several months' rental thereafter; for month after month he mailed checks to defendant, accompanying each check with language like this: \\\"I am sending you check for $140.00 rent for your building for month ending September 15th\\\"-\\u2014thus freely, voluntarily and forcibly making the payments and directing their application to particularly named months. What was defendant to do in the circumstances ? He had returned several cheeks several times, only to have them sent back to him. He was forbidden to hold them for plaintiff, and was told to apply them for rent of his building. If plaintiff insisted on playing the game against the protest of the defendant, we conclude it was because he was willing to take \\\"a long chance\\\" at getting even with his brother in law, Lubin, for success in his litigation for the possession of the building would have forced Lubin to sell him his stock of merchandise or \\\"be left out in the rain,\\\" or he might have reasoned that his litigious efforts would force a surrender of the building and a sacrifice sale of stock. Whatever his motive, whether in aid of his suit for possession of premises, or to drive a bargain with his brother in law, the bald fact remains that he made the payments of his own free will and with a full knowledge of all the facts.\\nThe plaintiff testified that defendant, some time after all the money had been paid to him, and after he had spent it, admitted an indebtedness in these words: \\\"Yes; I know I owe it to you, but may beat you out of it.\\\" Defendant, in his testimony, denied saying that he might beat plaintiff out of it, but does not deny admitting that he owed it to plaintiff. Grant that defendant said to plaintiff, upon being asked for a return of the money, \\\"Yes; I know I owe it to you,\\\" that of itself would not establish the relation of creditor and debtor. Defendant might have believed that he owed the plaintiff, but his belief would not make it so. It was merely his conelnsion from the facts\\u2014an expression of his opinion. If defendant had said, \\\"I know,I do not owe it to you,\\\" it would have been merely his opinion or conclusion. In neither case would his opinion or conclusion be of any probative value, except as supported by the detailed statement of the facts upon which it was based.\\nEven a gift inter vivos irrevocably invests title in the donee. 22 Cyc. 1212. The donee might, on being asked for the return of a perfected gift, under the generous influence of the situation, acknowledge that he owed the donor, but such acknowledgment would be without consideration and unenforceable. The donee of a perfected gift is the absolute owner of it, and as much so against the donor as all the rest of the world. If that is true of gifts, a fortiori voluntary payments with a full knowledge of all the facts, as in this case, irrevocably vest title of the property in the payee. He becomes the absolute owner against the payer, and as much so as against all the rest of the world. His statement, \\\"I know I owe it to you, ' ' was therefore not only his conclusion, but, if considered as an admission of a fact, it was without consideration and not enforceable.\\nThe writer hereof desires to state that he has found the solution of the controverted question a most difficult problem, largely because he was disinclined to solve it according to the standard of rules that have been adopted in solving similar problems by practically all the courts of this land. It seemed that defendant was getting something for nothing. At first glance the imprecation contained in the first sentence of plaintiff's brief, wherein it is said: \\\"Voluntary payment is so repugnant to justice and right and honesty as between man and man, ' ' seemed justified. Indeed, if the plaintiff was here asking relief by guardian, we conceive it should be granted.\\nWe have always understood the law to be that persons under no legal disability, as a general rule, have power to do as they wish with their own. They may enter into contracts; they may give away their substance; they may spend it for mere baubles; they may exchange it for high and riotous living ; it may go to satisfy vanity or pride or ambition; and the courts are helpless to say nay or to control their freedom of action in those respects. Courts are not instituted to control and supervise the private dealings of persons compos mentis who are upon an equal footing and labor under no restraint of person, property, or mind, such as fraud, duress, coercion, or extortion. Freedom of contract and freedom in the use and disposition of one's own are no less sacred than freedom of speech. If defendant had offered the plaintiff the sole and exclusive easement of the skies of Arizona in perpetuity for aerial navigation for $2,240, and the plaintiff, with full knowledge of the facts, had accepted the proposition and paid the price voluntarily, the courts could not aid in its recovery, unless suit for its recovery should be prosecuted by his guardian.\\nThe general rule as to voluntary payments is stated in 30 Cye. 1298, as follows: \\\"Except where otherwise provided by statute, a party cannot by direct action or by way of setoff or counterclaim recover money voluntarily paid with a full knowledge of all the facts, and without any fraud, duress or extortion, although no obligation to make such payment existed.\\\" And this is the rule adopted by the English courts, the federal courts, and all the state courts, except the states of Georgia and Kentucky. To cite individual cases upholding the doctrine announced would be an easy matter, but would serve no useful purpose, and only extend the length of this opinion, already too long.\\nThere were no material facts in dispute, and therefore no questions for a jury to decide. \\\"Whether a payment was made voluntarily or not is a question of law, where the facts are undisputed.\\\" Eslow v. City, 153 Mich. 720, 22 L. R. A., N. S., 872, 117 N. W. 328.\\nWithout deciding whether the complaint states facts sufficient to constitute a cause of action in assumpsit for money had and received, it is clear to our minds that the plaintiff's evidence failed to sustain such action.\\nWe think we should state that the attorneys who appear for plaintiff on this appeal had no part in getting the plaintiff in the predicament disclosed by this record. Their reliance here for relief was necessarily upon a failure of consideration and the ignoring of the doctrine of voluntary payment with full knowledge of the facts. To' uphold their position would be to say that ignorance of the law alone excuses. As we said in Copper Belle Mining Co. v. Gleeson, supra, quoting from Pomeroy, Equity Jurisprudence: \\\"The administration of justice, the law itself as a practical system of the regulation of human conduct, requires that some fundamental assumptions should be made as postulates. The most important of all these is the assumption that all persons of sound and mature mind are presumed to know the law. If ignorance of the law were generally allowed to be pleaded, there would he no security of legal rights, no certainty in judicial investigations, no finality of litigation. ' '\\nJudgment is reversed, with directions to dismiss complaint.\\nFRANKLIN, C. J., and CUNNINGHAM, J., concur.\\nNOTE.\\u2014As to the implied duty of a lessor to put the lessee in possession of leased premises, see notes in 9 L. E. A., N. S., 1127, and 21 X. E. A., N. S., 239.\"}"
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+"{\"id\": \"4825067\", \"name\": \"JOHN H. GANNON, Appellant, v. J. P. HOHUSEN, C. H. BAYLESS and C. F. RICHARDSON, Members of the Board of Supervisors of Pima County, Territory of Arizona, and G. L. SMITH, County Superintendent of Roads of Said County, Appellees\", \"name_abbreviation\": \"Gannon v. Hohusen\", \"decision_date\": \"1913-05-21\", \"docket_number\": \"Civil No. 1254\", \"first_page\": \"523\", \"last_page\": \"527\", \"citations\": \"14 Ariz. 523\", \"volume\": \"14\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T21:43:10.363758+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN H. GANNON, Appellant, v. J. P. HOHUSEN, C. H. BAYLESS and C. F. RICHARDSON, Members of the Board of Supervisors of Pima County, Territory of Arizona, and G. L. SMITH, County Superintendent of Roads of Said County, Appellees.\", \"head_matter\": \"[Civil No. 1254.\\nFiled May 21, 1913.]\\n[132 Pac. 566.]\\nJOHN H. GANNON, Appellant, v. J. P. HOHUSEN, C. H. BAYLESS and C. F. RICHARDSON, Members of the Board of Supervisors of Pima County, Territory of Arizona, and G. L. SMITH, County Superintendent of Roads of Said County, Appellees.\\n1. Appeal and Error\\u2014Questions Reviewable\\u2014Immaterial Rulings. Where the complaint, in an action against a county hoard of supervisors and the superintendent of roads as officers and individuals for injury to land in opening a road, alleged the invalidity of the order laying out the road, and the answer merely alleged that the road was opened at the request of plaintiff and pursuant to contract made between plaintiff and the board of supervisors, rulings having reference solely to the procedure before the board of supervisors were on immaterial issues and would not be reviewed on appeal.\\n2. Counties \\u2014 Contracts \\u2014 Power of Board of Supervisors. \\u2014 The board of supervisors of a county may make certain contracts for the county, but the county is the contracting party, and the board is the mere agency through which the county acts.\\n3. Counties \\u2014 Board of Supervisors \\u2014 Civil Liability. \\u2014 The county board of supervisors possesses concurrent jurisdiction with the superior court in laying out a publie road, and the members thereof are not civilly liable for injury arising from erroneous orders made by the board in laying out and opening a public road.\\nAPPEAL from a judgment of the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.\\nAffirmed.\\nThe facts are stated in the opinion.\\nMr. Tom K. Richey, for Appellant.\\nMr. G. P. Bullard, Attorney General, for Appellees.\", \"word_count\": \"1634\", \"char_count\": \"9477\", \"text\": \"CUNNINGHAM, J.\\nThis action was commenced by the appellant against the defendants to recover damages alleged to have been suffered by appellant from -the opening of a new road over the homestead claim of appellant. The defendants J. P. Hohusen, C. H. Bayless and C. F. Richardson are alleged to be members of the board of supervisors of Pima .county; and defendant G. L. Smith is alleged to be the county superintendent of roads in said Pima county. It is alleged that the board of supervisors and county superintendent of roads opened up the road, acting under a void order of the board, and opened the road on a line different from the line designated in that order, and in so opening the road plaintiff's fence was torn down and removed, and plaintiff was dispossessed of a strip of land, and the timber and other growth on his lands were cut and removed; all of which resulted in damages to the plaintiff in the sum of $300. The relief demanded is the possession of the land appropriated, damages and costs, and an order restraining defendants and any other persons from asserting any easements over, or other right in, plaintiff's land, and general equitable relief.\\nDefendants admit they hold the official positions alleged^ deny plaintiff's ownership of the land; admit making the orders, matters and things leading up to and including the opening of the road; and as new matter allege that the road was so opened at the request of, and on the proposal from, and in pursuance to an agreement with, the plaintiff. It is averred that the board, pursuant to such agreement and request, \\\"did construct the road and declare the same to be for the public benefit\\\"; and they deny that plaintiff was damaged thereby. They further answer, denying each and every allegation contained in the complaint. The cause was tried to the court without a jury, and a judgment was rendered \\\"that plaintiff take nothing by his action,\\\" and that defendants recover costs.\\nPlaintiff made a motion for a new trial upon the grounds that the court erred in rejecting evidence offered by plaintiff tending to show that the residence of the signers of the initial road petition was within the corporate limits of the city of Tucson, and that the court erred in ruling that persons who pay a property tax are road taxpayers so as to qualify such persons to sign a valid petition to lay out and open a public road, and in ruling that section 6 of chapter 63 of the Laws of Arizona of 1909, providing for road taxes, is a valid law, and in ruling that the burden of proof was on plaintiff, under the pleadings, to prove by a preponderance of evidence, or at all, that the road was not opened upon the proper line. The motion was denied, and the plaintiff gave notice of appeal from such order refusing a new trial, and perfected such appeal by filing an affidavit in lieu of a bond. The appellant assigns error upon all grounds alleged for a new trial, except the last mentioned.\\nThe evidence offered and rejected and the order of the court complained of in the motion for a new trial and in the assignments of error, all bear upon the question whether the board of supervisors had acquired jurisdiction of the subject matter, authorizing the board to make the orders laying out and opening the road in question. The plaintiff has endeavored to assert a cause of action against the defendants as officers and as individuals for an injury to Ms lands and in Ms complaint has anticipated the defendants wiE justify their action in the premises by pleading an order of the board of supervisors of the county, laying out a public road over the premises, and setting forth the fact that the appraisers reported no damages suffered by appellant; and, to meet that defense, plaintiff has in his complaint included matters in reply thereto, asserting that such orders and proceedings by the board are void for want of jurisdiction and without effect as a defense to this action. The confusion arises from the fact that the defendants did not assert the defense anticipated, but they defended upon the grounds that the plaintiff requested, proposed and agreed that the road of a certain width and length upon a certain line be laid out and opened under certain conditions, and that all these conditions were met by the board in pursuance of the request, proposition and agreement.\\nThe special answer raised a question of estoppel by contract, and did not rely upon the procedure before the board of supervisors to open the road in exercise of the powers of eminent domain, specially vested in the board by paragraph 3972, Revised Statutes of Arizona of 1901. The defendants did not attempt to rely upon the validity of the orders of the board to justify their actions opening the road. The procedure of the board leading up to and making the orders complained of was not put in issue; neither were the orders made controverted. The special defense set forth in the answer in effect confessed and avoided the allegations of the complaint. The answer alleges that the road was opened by the defendants at the request of the plaintiff and pursuant to a contract made between the plaintiff and the board of supervisors. It further alleges that defendants constructed the road \\\"and declared the same to be for the public benefit.\\\" They deny that plaintiff has suffered any damages from the acts of the defendants in the premises. The issues raised by the pleadings are whether the parties contracted to open and construct the road on the line it was actually opened and constructed; and, if so, has such contract been performed according to its terms? The question whether the board of supervisors, as such board, has the power to make a contract to lay out and construct a public road under the circumstances in this case is not raised; nor is such question decided. We specifically reserve the decision of such question until it is before us. The defendants, as individuals, certainly have the right to make such a contract, and we are considering this case upon that theory.\\nThe board of supervisors may make certain contracts for their county, but in such case the county is the contracting party, and the board is the instrumentality through which the county must act. The county is'not a party to this action, and therefore the defendants, members of the board of supervisors, must be considered as present in their individual capacity.\\nNo civil liability would arise against the members of the board of supervisors for injury arising from erroneous orders made by the board of supervisors laying out and opening a new public road. In so acting the board is a tribunal possessing concurrent jurisdiction with the superior court over the subject matter; and the members of the board are no more liable to a civil action for errors committed in the disposition of such matter, than the judge of the superior court would be liable for an error of judgment in a like case prosecuted under title 21, Revised Statutes of Arizona of 1901. Everett v. Board of Supervisors, 93 Iowa, 721, 61 N. W. 1062.\\nNo errors are assigned upon the rulings of the court relating to the issues in the ease. The matters complained of have reference solely to the procedure before the board of supervisors under paragraph 3972, Revised Statutes of Arizona of 1901, and therefore bear upon immaterial issues. The rulings of the court complained of could work no injury to the appel-' lant. We have found no reversible error in the record, and the appellant has pointed out none.\\nTherefore the order refusing a new trial is affirmed.\\nFRANKLIN, C. J., and ROSS, J., concur.\\nNOTE.\\u2014As io the liability of county boards and officers for misfeasance or nonfeasance in connection with streets and roads, see note in 95 Am. St. Kep. 81.\"}"
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+"{\"id\": \"4914176\", \"name\": \"SUPERIOR & PITTSBURG COPPER COMPANY, a Corporation, Appellant, v. FRANK TOMICH, Sometimes Known as FRANK THOMAS, Appellee\", \"name_abbreviation\": \"Superior & Pittsburg Copper Co. v. Tomich\", \"decision_date\": \"1917-07-02\", \"docket_number\": \"Civil No. 1535\", \"first_page\": \"182\", \"last_page\": \"193\", \"citations\": \"19 Ariz. 182\", \"volume\": \"19\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T19:22:09.441736+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SUPERIOR & PITTSBURG COPPER COMPANY, a Corporation, Appellant, v. FRANK TOMICH, Sometimes Known as FRANK THOMAS, Appellee.\", \"head_matter\": \"[Civil No. 1535.\\nFiled July 2, 1917.]\\n[165 Pac. 1101.]\\n[Dissenting Opinion of ROSS, J., 165 Pac. 1185.]\\nSUPERIOR & PITTSBURG COPPER COMPANY, a Corporation, Appellant, v. FRANK TOMICH, Sometimes Known as FRANK THOMAS, Appellee.\\n1. Constitutional Law \\u2014 Master and Servant \\u2014 Employers' Liability Act \\u2014 Validity.\\u2014Employers\\u2019 liability law (Civ. Code 1913, tit. 14, c. 6), being a valid exeTcise of the state\\u2019s police power, does not violate Constitution of the United States, Amendment 14, prohibiting any state from depriving any person of life, liberty, or property without due process of law or denying to any person the equal protection of the laws.\\n8. Constitutional Law \\u2014 Employers\\u2019 Liability Act \\u2014 Validity.\\u2014Employers\\u2019 liability law does not conflict with Constitution, article 18, section 5, providing that the defense of contributory negligence shall, in all cases be a question of fact, such constitutional provision merely requiring the submission of the question of contributory negligence in eases where such defense is allowed.\\n3. Master and Servant \\u2014 Employers\\u2019 Liability Act \\u2014 Validity.\\u2014Employers\\u2019 Liability Act is not invalid as violating Constitution, article 18, section 7, commanding the legislature to enact an employers\\u2019 liability law, but limiting liability to all cases in whieh death or injury shall not have been caused by the negligence of the employee killed or injured, the statute by its terms allowing an apportionment of damages where the injured employee has been guilty of contributory negligence.\\n4. Master and Servant \\u2014 Employers\\u2019 Liability Act \\u2014 Defenses.\\u2014 Since the Employers\\u2019 Liability Act provides that nothing less than the sole negligence of the employee injured will bar an action for damages, an answer, setting up plaintiff\\u2019s contributory negligence as a complete and not a partial bar, constitutes no defense.\\n5. Damages \\u2014 Personal Injuries \\u2014 Excessiveness.\\u2014Eight thousand dollars held not an excessive verdict under the Employers\\u2019 Liability Act, where the employee\\u2019s hand was crushed, exposing the nerves and necessitating amputation of three fingers.\\n[As to damages recoverable under federal Employers\\u2019 Liability Act, see note in Ann. Cas. 1914C, 181.]\\n6- Appeal and Error \\u2014 Beview\\u2014Harmless Error. \\u2014 In an action under the Employers\\u2019 Liability Act, the action of the court in allowing jurymen to question witnesses held harmless error.\\n7. Appeal and Error \\u2014 Preservation of Exceptions \\u2014 Failure to Object. \\u2014 In an action for personal injuries under the Employers\\u2019 Liability Act, failure to object to questions asked by the jurors as indicating prejudice precluded such matter from being urged on appeal.\\nAPPEAL from a judgment of the Superior Court of the county of Cochise. Alfred C. Lockwood, Judge.\\nAffirmed.\\nSTATEMENT OP PACTS BY THE COURT.\\nThe appellee was employed by the appellant in the underground workings of its mines in Cochise county. The appellee\\u2019s duties required him to load, push on a track, and unload ore ears. The place for the performance of such duties was on the 900-foot level of the mine. The track was laid through a drift from the point of loading the cars to a point of unloading the ores into a chute. The appellee was an experienced car man\\u00bf accustomed to such work in other mines. When the car had received its load of about 2,000 pounds weight, the appellee was required to start the car moving on the track, and control its movements until the chute was reached. Timbers were so placed about the chute as to facilitate the unloading or dumping of the load. On November 9, 1914, and a few hours after appellee had first commenced his labors in the said drift, he started a loaded car from the point of loading along the track toward the chute, and, following the car with his right hand holding the top of the rear end of the car as it moved over the track by gravity, appellee stumbled over something on the floor or slipped on the track or on the ground, and was thrown to the ground, but continued to hold to the rear end of the ore car as it moved toward the chute. So holding to the car, the car struck the obstructions about the chute with such force that the fastenings on the doors of the car released, and the car ended over so that three fingers on appellee\\u2019s right hand were caught between the rear end of the ear which he was holding and a cross timber about the chute. The fingers were lacerated, crushed, and bruised so that they were amputated about the first joints of each finger. The said surgical operation was done at the appellant\\u2019s hospital department, and when the wounds healed the nerves were left so exposed as to be sensitive and tender and causing suffering, and a further ampu tation of the fingers is required to relieve such condition. The appellee commenced this action to recover damages for his said injuries, basing his cause of action on the employers\\u2019 liability law (chapter 6, tit. 14, Civil Code Ariz. 1913) and upon negligence. The cause of action founded upon negligence was expressly waived and abandoned by plaintiff upon the trial. The defendant demurred to the complaint upon the ground that the employers\\u2019 liability law and the constitutional mandate, in obedience to which such statute was enacted, are both void because they are contrary to and contravene the Fourteenth Amendment to the Constitution of the United States, in that they deprive the defendant of its property without due process of law, and deny to it the equal protection of the law, by subjecting it to unlimited liability for damages for personal injuries suffered by its employees without any fault or negligence on its part, and because such statute attempts to give plaintiff the right to recover damages of defendant notwithstanding the injuries for which such damages are claimed were contributed to and in part caused by plaintiff\\u2019s own negligence, and attempts to deprive the defendant of the right to wholly defeat this action by interposing the defense of contributory negligence. The defendant alleges that the damages, if any, resulted wholly from plaintiff\\u2019s neglect and carelessness, and his failure to use any care or caution in his own behalf at the time and place of the alleged injury. The further- defense is that the plaintiff contributed to the injury by his own negligence, in that at the time of its occurrence the plaintiff was giving no attention, or insufficient attention, to his duties, and failed to push the ear in the proper manner or place his hands on the car in the proper position, and other like failures are alleged.\\nThe court overruled the demurrers, and the cause was tried to a jury. The jury returned a verdict against the defendant for the sum of $8,000. Judgment followed the verdict. The defendant appeals from the judgment and from an order refusing a new trial.\\nMessrs. Knapp & d\\u2019Autremont and Mr. H. E. Pickett, for Appellant.\\nMr. Fred Sutter and Mr. J. T. Kingsbury, for Appellee.\", \"word_count\": \"4556\", \"char_count\": \"27240\", \"text\": \"CUNNINGHAM, J.\\n(After Stating the Facts as Above).\\u2014 The appellant assigns as error the overruling of its demurrers to the complaint for the reason both chapter 6, title 14, of the Revised Statutes of Arizona of 1913, Civil Code, upon which the action is based, and the constitutional mandate, section 7 of article 18 of the state Constitution, in obedience to which said chapter 6 was enacted, violate section 1 of the Fourteenth Amendment to the Constitution of the United States, in that the employers' liability law, said chapter 6, title 14, attempts to deprive the defendant of its property without due process of law by imposing unlimited liability on it as an employer for personal injuries sustained by an employee while in its employ in cases where defendant has been guilty of no fault, want of care, or neglect of duty; and because the employers' liability law contravenes and is in violation of sections 5 and 7 of article 18 of the Constitution of the state of Arizona, in that said statute attempts to give plaintiff the right to recover judgment for personal injuries notwithstanding the injuries for which the judgment is sought were contributed to and in part caused by plaintiff's negligence, and attempts to deprive defendant of' the right to wholly defeat this action by showing that said injuries were contributed to and in part caused by plaintiff's own negligence.\\nThe questions of the constitutional validity of the employers ' liability law are raised in a number of different objections. The defendant assigns as error the admission and rejection of evidence and misconduct of the trial judge during the trial of the cause, working a prejudice and resulting in an excessive verdict.\\nThe appellant groups the assignments of error under four divisions covering the points of law raised in the cause: First, the employers' liability law, chapter 6, title 14, under which the action is brought, is unconstitutional and void; second, that the plaintiff failed to make out a case warranting recovery under the employers' liability law; third, error in admitting and excluding evidence and in giving instructions, and, fourth, an excessive verdict.\\nUnder the first division the case of Inspiration Consolidated Copper Co. v. Mendez, ante, p. 151, 166 Pac. 278, on the authority of New York C. R. Co. v. White, 243 U. S. 188, 61 L. Ed. 667, 37 Sup. Ct. Rep. 247, holds to the opinion that the employers' liability law is valid within the police powers of the state, and does not come into conflict with the Fourteenth Amendment of the Constitution of the United States; and that such liability law is a valid, subsisting enactment and is a law of the state of Arizona.\\nAppellant contends that chapter 6 of title 14 is void, for the reason its terms conflict with sections 5 and 7 of article 18 of the state Constitution. Section 5 is that:\\n\\\"The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury. ' '\\nThis section does not restrict the power of the legislature to modify or abolish the defense of contributory negligence. The restriction contained in the section is clear that no law shall be enacted which attempts to make the defenses of contributory negligence or assumption of risk, when interposed, determinable by the courts as matters of law, but such defenses are made to depend upon facts when they are properly interposable, and, interposed, they are required to be established by a preponderance of the evidence to the satisfaction of the jury. Whether the plaintiff's negligence contributed to the wrong, or whether the plaintiff assumed the risk and danger from which the wrong arose, must be determined as a fact from the evidence by the jury.\\nSection 7 commands the legislature to enact an employers' liability law, by the terms of which any employer shall be liable for the death or injury of workmen employed in all hazardous occupations named, and any other industry designated by the legislature, whenever such death or injury is caused by any accident due to a condition or conditions of such occupation, except when such death or injury has been caused by the negligence of the employee killed or injured. The only restriction placed upon the legislative power in carrying out said constitutional mandate found in the section of the Constitution is the exception, viz.:\\nLiability is incurred \\\"in all eases in which such death or injury of such employee shall not have been caused by the negligence of the employee killed or injured.\\\"\\nIn all other cases the legislative power is unlimited by said section 7.\\nA careful examination of chapter 6 of title 14 discloses no violation of such limitation on the power of the legislature. The exception is carefully preserved in paragraph 3154 of the statute. If the injury resulted from an accident arising out of and in the course of labor, service, and employment in a hazardous occupation, and was due to a condition, or conditions, of such occupation or employment, and was not caused by the negligence of the employee the liability to damages exists. If, however, the injury was caused by negligence to which the injured workman contributed, the liability of the employer remains to an amount of the full damages, less the amount of damages attributable to the employee's negligence. In other words, the damages are to be apportioned to the parties, employer and employee, as the negligence, attributable to the one is to the negligence attributable to the other. Paragraph 3159, Civil Code of Arizona 1913. \\\"The fact [appearing] that the employee may have been guilty of con-tributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee, ' ' are the words of the statute. The statute is in full harmony with the constitutional mandate and with its restriction.\\nThe defendant set forth in its answer the contributory negligence of the plaintiff, consisting of the manner in which the plaintiff was performing his duties at the time of the accident, but defendant's answer does not set forth any claim for a reduction of damages by reason of such negligence, but claims such contributory negligence as a complete, not a partial, defense to the action. The answer is evidently interposed upon the theory of the common-law rule of contributory negligence in bar of the cause of action. Under the provisions of chapter 6, supra, nothing less than the sole negligence of the employee injured will bar an action based on the statute for damages. Negligence of the employee contributing to the injury may serve to reduce the amount of the recovery, but will not bar recovery.\\nThe defendant, having in its answer admitted that its negligence in part was the cause of the damages, by setting forth a charge of contributory negligence against the plaintiff, authorized a verdict against defendant in any event. The matters left open for inquiry were the amount of the damages the plaintiff was entitled to recover as measured by the allegations of the complaint and the evidence, and whether the accident was due to a condition or conditions of the employment and sueh as is unavoidable.\\nThe appellant complains that the amount of damages found is excessive and out of all proportion to the nature, extent, and seriousness of the injury, to the loss of time, wages, or future earning capacity, to the amount necessary to effect a recovery, to his station in life, and to his pain and suffering. No complaint is made that the evidence does not sustain the verdict. The specific complaints are made that the jury asked questions of witnesses during the progress of the trial; and the members of the jury were permitted to and did examine the plaintiff's injured hand, and touched and pressed his wounded fingers, and the members of the jury were thereby prejudiced, which prejudice resulted in a verdict for excessive damages.\\nWith regard to the first complaint made, the abstract of record discloses that counsel for defendant invited the jury to ask questions of witness Massey. Thereafter the jurors freely asked questions of other witnesses. The record discloses no objection was offered by the defendant to any question asked by any juror of any witness. The practice of allowing attorneys, parties, the judge, and jurors to examine witnesses in a disorderly manner has a tendency to break down the decorum becoming the sanctity of a trial, and should be discouraged. The proper dignity of the court requires orderly procedure in a trial of a cause to be strictly observed. The liberty or property of litigants is involved in the result of every lawsuit, and the trial of such rights may result in tragedy to some interested human being. Certainly a tragedy results from error committed, never comedy. The purpose of a lawsuit is to determine the exact rights of the parties thereto and enforce such exact rights: The wisdom of ages of experience has served to teach our profession that the observance of the prescribed rules of procedure more nearly discover the exact rights of parties than haphazard, disorderly procedure. Not every departure from orderly trial procedure justifies a reviewing court in reversing a judgment because of irregular trial procedure. The irregular procedure must have prejudiced the rights of the party complaining before' an appellate court is justified in disturbing a judgment. We-must presume that no harm befell the defendant by reason of the many questions asked the witnesses on this trial, for the reason the defendant first invited the ashing of the questions, and at no time during the trial objected to that form of procedure.\\nThe appellant contends that the questions asked the witnesses by the jurors conclusively indicate a prejudice against this defendant, inducing an excessive verdict for damages. The nature of the questions called for answers giving information covering a wide field of inquiry, and were not confined to testimony bearing upon the amount of damages. The questions were largely confined to detail matters connected with the knowledge of the witness with regard to which he had testified, the credibility of the witness, and his means of knowledge of the matter with respect to which he gave testimony. The jurors had a very good reason to test the witness' means of knowledge of these matters and the test given indicates no prejudice against defendant. This particular matter was not insisted upon as a ground for a new trial, and is first raised on this appeal. For that reason the objection must be overruled. The verdict does not conclusively appear to have been reached through prejudice and bias, nor induced by passion and prejudice.\\nThe appellant contends that by permitting the jurors to examine plaintiff's wounded hand and fingers, and during such examination to squeeze and press his hand for the purpose of discovering the present sensitive condition of the fingers, was error, and resulted in causing the jury to return a verdict for excessive damages. The appellant nowhere contends that the evidence thus gained by the jury was false. If as a fact the plaintiff's wounds remained sensitive and prevented plaintiff from earning a living, and the jury ascertained that fact from personal physical examinations and by experimenting with the wound, no harm resulted to appellant simply by the use of the means complained of in arriving at the fact. Appellant did not object to the examinations when being made by the jury, and cannot now complain of the character of the evidence used to establish the fact.\\nWhile the record discloses many departures from the ideal trial of a lawsuit, these departures were consented to, acquiesced in, submitted to, or indulged, by appellant without objection, and do not appear affirmatively upon the record to have worked a prejudice to appellant's rights. The verdict returned is large in amount, but that matter lay with the jury. No question is made that the verdict is not sustained hy substantial evidence.\\nUpon the whole ease I am of the opinion the record contains no reversible error. Consequently the judgment must be affirmed.\"}"
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+"{\"id\": \"4931231\", \"name\": \"JUAN APODACA and FELIX GRIEGO, Appellants, v. STATE, Respondent\", \"name_abbreviation\": \"Apodaca v. State\", \"decision_date\": \"1920-02-25\", \"docket_number\": \"Criminal No. 472\", \"first_page\": \"273\", \"last_page\": \"282\", \"citations\": \"21 Ariz. 273\", \"volume\": \"21\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T20:25:58.329672+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JUAN APODACA and FELIX GRIEGO, Appellants, v. STATE, Respondent.\", \"head_matter\": \"[Criminal No. 472.\\nFiled February 25, 1920.]\\n[187 Pac. 581.]\\nJUAN APODACA and FELIX GRIEGO, Appellants, v. STATE, Respondent.\\n1. Criminal Law \\u2014 Refusal to Instruct to Acquit if Reasonable Doubt as to Whether Defendant or Some Other Person was Guilty is Error. \\u2014 In a murder prosecution against two soldiers for killing a dealer in intoxicating liquors in a house of ill repute conducted by a colored woman who claimed to be the only eyewitness, the crime being denied by defendants, it was error to refuse to instruct that, if the evidence pointed as clearly to some other person or persons as having committed the crime as to defendants, or if there was a reasonable doubt as to whether defendants or some other persons were guilty, defendants should be acquitted, notwithstanding other instructions given.\\n1. For authorities discussing various phases of instructions on question of reasonable doubt, see note in 48 Am. St. Rep. 566.\\n2. Criminal Law \\u2014 Refusal to Instruct That Good Character may Raise Reasonable Doubt is Error. \\u2014 It likewise was error to refuse to instruct that proof of good character in connection with all the other evidence may generate a reasonable doubt which entitles defendants to aequittal, even though without such proof of good character the jury would convict, notwithstanding other instructions given.\\nAPPEAL from a judgment of the Superior Court of the County of Yavapai. John J. Sweeney, Judge.\\nReversed and remanded.\\nMessrs. Favour & Cornick, for Appellants.\\nMr. Wiley E. Jones, Attorney General, Mr. Clyde M. Gandy, Mr. Louis B. Whitney, Mr. Alexander B. Baker and Mr. F. J. K. McBride, Assistant Attorneys General, for the State.-\", \"word_count\": \"2726\", \"char_count\": \"15852\", \"text\": \"CUNNINGHAM, C. J.\\nThe appellants are soldiers. Pfior to December, 1918, they were stationed at Whipple Barracks, an army post adjoining Prescott. At about said date the duties assigned to them were what is known as \\\"kitchen police.\\\" About 3 o'clock in the afternoon of the last Sunday in December, 1918 (December 29th), these appellants went from the post to the city of Prescott and returned to the post at 10:30 the same evening. On that night, December 29, 1918, Manuel Gonzales was killed by having been beaten to death with blunt instruments. The homicide was committed at the house of a colored woman, Nellie Campbell, the place .being one of ill repute. The body of Gonzales was thrown into a shed or coal-house on the rear of the Nellie Campbell lot. On the night of the said 29th of December the defendants visited the Nellie Campbell house. While they were there a fight occurred in the house between Apodaca and Manuel Baca, another soldier of the post. Griego also participated in the fight, either as helping Apodaca or in trying to separate the two. Baca was bruised and Ms head was cut, his wounds bleeding profusely. His wounds were treated at the post.\\nThe defendants reached the post shortly after Baca got there, and they were present and assisted in dressing Baca's wounds. During the fight in which Baca took part the furniture in the house was disarranged. A dispute exists with regard to whether or not the deceased, Gonzales, participated in the fight. Nellie Campbell made irreconcilable, conflicting statements at different times as to the time of night the fight took place at her house. On the trial she fixed the time at 8 P. M. At the inquest on the body of Gonzales she fixed the time at midnight or a little later, and at another occasion she fixed the time at a different, intermediate hour.\\nI shall briefly set forth the testimony for the purpose of considering the instructions requested and refused.\\nNellie Campbell testified that the fight started between Apodaca and Gonzales over a charge that Gonzales had taken money from Apodaca's pocket while Apodaca was in a drunken stupor, lying on a bed; that, when the fight started, defendant Griego came to Apodaca's assistance against Gonzales. Thereupon Baca attempted to stop the fight. He was hit over the head with a slop jar, withdrew from the fight, and left the house. This witness testifies that the lamp was knocked over at' the beginning of the fight; that the defendants forced Gonzales from the front room, where the fight started, into the back room, thence to the back yard; that they used a broom and a hammer and a club with which to strike and beat him, and they kicked him with their heavy shoes. When he ceased to fight in the back yard, after the defendants beat him, they took up the body and threw it in the shed. Witness saw the fight in the back yard while looking through a hole in the fence. When the body had been disposed of, the defendants left through the front door. The witness also left and went to her mother's house. She stopped for a short time outside of a saloon on the way home, met the defendants at the creek, and arrived at her mother's house a little after 1 o'clock, or a little after 10:30 P. M., according to her conflicting statements.\\nThe defendants positively deny that Gonzales was at the Nellie Campbell house while they were there. They testify that Apodaca and Baca fought at the Nellie Campbell house, that Griego separated them, and they deny that any person participated in a fight with them other than Baca. They deny that they ever heard of Gonzales until they were charged with his death. It is undisputed that they \\\"checked in\\\" at the post before 11 o 'clock December 29th.\\nIt is conceded that the three soldiers and Nellie Campbell indulged in drinking intoxicating liquor of some kind prior to the fight between Apodaca and Baca. The facts are clearly established by the evidence that snow began- to fall about 11 o'clock on the night in question, and on the morning following the ground was covered with snow to a depth of four or inore inches; that the frozen body of Gonzales was found in the shed after Nellie Campbell had reported to the local authorities of its being there. A broom, a hammer, a club and other instruments were found in the rooms and in the back yard, all of which instruments appeared to have blood on them. The rooms gave evidence of a fierce struggle, and much blood was about the furniture and on the floor.\\nThe body of Gonzales was clad only in underclothes, and shoes were on the feet; the trousers were about the feet. The skull was literally crushed, and the body was bruised and lacerated in a great many places. After the snow melted patches that seemed to be blood stains were observed in the back yard, and a bloody sweater with snow on it was found in a cellar under the Nellie Campbell house. Witnesses who lived about fifty or seventy-five yards from the Campbell house heard a shot at that house on the night of December 29th about midnight, and saw a number of persons who seemed to be Mexicans about the front of the Nellie Campbell house, acting in an excited manner. Gonzales was engaged in the business of disposing of intoxicating liquors \\u2014 in the business commonly known as \\\"bootlegging.\\\"\\nThe appellants denied that they ever saw Gonzales; denied that he participated in any fight with them or with either of them; explained the circumstances of their visit at the Nellie Campbell house, the camera that they left there, the blood stains found on their clothes, and all other circumstances tending to connect them or either of them with the Gonzales killing. They introduced testimony establishing their good character, and such good character is not disputed. With the exception of the testimony of Nellie Campbell, who claimed to have witnessed the homicide, all of the testimony and circumstances point with equal certainty to others as they point to the defendants as the criminals. The defendants' testimony and the evidence furnished by physical facts with other testimony are consistent with the defendants' innocence and contradict Nellie Campbell's testimony to the effect that she saw the defendants kill Gonzales.\\nFrom all of the testimony, as this record presents it to us, the whole question on the trial turned on the inquiry whether or not the appellants were actually present and killed Gonzales. The testimony of an eye-witness, as snch witness claims to have been, was squarely met by the denials of the two defendants, corroborated in great detail by many facts and circumstances. Nellie Campbell attempts to explain the evidence of a bullet hole in her door as having been made on Christmas day about noon by one Lee Overton, a jealous lover, at a time when others were present, including Louis Barbar, and fche denied that a shot was fired in her house on the night of December 29th.\\nThe defendants were convicted of manslaughter, and they have assigned a great number of errors alleged to have been committed at the trial. We shall not discuss all of these assignments, as a .large number of them have no application to a charge of manslaughter, but apply only to murder charges.\\nWe will consider the assignments alleging error upon the grounds that the court refused instructions No. 12 and No. 20, requested in writing by the defendants.\\nBequest No. 12 is as follows:\\n\\\"The court instructs the jury that the defendants, Griego, and Apodaca, are the only persons on trial before you for this alleged offense, and that if you find from a consideration of all the evidence that it points as clearly to some other person or persons as having committed the crime in question as it does to the defendants, or if, after a fair and full consideration of all the evidence, the jury entertain a reasonable doubt as to whether the said defendants or some other persons are the guilty parties, then it is your duty to acquit the defendants.\\\"\\nAn instruction to the same effect and almost in the identical words was refused in People v. Hemple, 4 Cal. App. 120, 130, 87 Pac. 227, 231. The court of vappeals of California there said:\\n\\\"A defendant is entitled to have an instruction given when it announces the law responsive to every element of his defense shown by the evidence. The defendant testified to circumstances and facts that stand undisputed which showed that other persons than himself had opportunities of . . . committing the crime. . I think that under the facts appearing in this case this instruction should have been given, and it was prejudicial error to have refused it.\\\"\\nThe facts in the case at hand present a more telling call for such instruction to be given than is shown in the opinion in the Semple case, supra.\\nBequest No. 20, also refused, is as follows:\\n\\\"The court instructs the jury that proof of good character in connection with all the other evidence may generate a reasonable doubt, which entitles the defendants to an acquittal, even though without such proof of good character the jury would convict.\\\"\\nThis is a near copy of an instruction refused and assigned as error in Bryant v. State, 116 Ala. 446, 23 South. 40. The same had been theretofore approved by the Supreme Court in Newsom v. State, 107 Ala. 133, 18 South. 206, and in Goldsmith's case, 105 Ala. 9, 16 South. 933. The ruling was again recognized as correct in Taylor v. State, 149 Ala. 32, 42 South. 996.\\nEarly in the Alabama court the law on this subject was stated in the case of Felix v. State, 18 Ala. 720. The court adopted as the correct rule the following from Boscoe's Criminal Evidence (1846 ed.), 97, as follows:\\n\\\"That the good character of the party accused, satisfactorily established by competent witnesses is an ingredient which ought always to be submitted to the consideration of the jury, together with the other facts and circumstances of the case. The nature of the charge and the evidence by which it is supported will often render such ingredient of little or no avail; but the moije correct course seems to be, not in any case to withdraw it from consideration, but to leave the jury to form their conclusion upon the whole of the evidence whether an individual whose character was previously unblemished, has or has not com mitted the particular crime for which he is called upon to answer.\\\"\\nThe court says, following the quotation from Boscoe:\\n' ' We_ think this places the rule upon sensible and intelligible ground, and we feel no hesitation in adopting it.\\\"\\nThere are cases where the testimony adduced for and against the accused is nearly balanced in which good character may be very important to a man's defense. He may show that, notwithstanding suspicious circumstances tending to connect him with the commission of an offense, he is of perfectly good character in the neighborhood in which he resides and where he is known, and that may be sufficient to exonerate him.\\nThe respondent contends that the instructions of the court covered fully the rule laid down in request No. 20, and for that reason the refusal of such request did not prejudice the defendants. The court instructed the jury that they should take evidence of good reputation into consideration with all the other evidence\\n\\\"in determining the question of the guilt or innocence of the defendants, or the degree of guilt, if he should be guilty of any degree of the offense charged in the information. Good reputation is not a defense of a charge of crime.- If one is actually [guilty] of the commission of a crime, the fact that he has a good reputation is no justification or excuse for the killing, but it is evidence to be considered by you for determining whether or not he is guilty of the crime charged in the information or of any degree of that crime. ' '\\nThis instruction has nothing to recommend it. It is confusing, and leaves evidence of good reputation of no weight in cases where one is \\\"actually guilty of the commission of a crime.\\\" This confused in struction makes the giving of request No. 20 the more imperative.\\nThe following was given on this subject: The court called attention to the fact that the defendants had introduced evidence \\\"tending to show their good character for peace and quiet.\\\" The Attorney General argues that this charge covers request No. 20. The court instructs:\\n\\\"If the evidence convinces you beyond a reasonable doubt of defendants' guilt, you should so find, notwithstanding their good character in that behalf; but if, in the present case, the good character of the defendants for peace and quietness is proven to your satisfaction, then such facts are to be kept in view by you in connection with all the other evidence in the case in all your deliberations, and if, after a consideration of all the evidence in the >case, including that bearing upon the good character of the defendants, the jury entertains a reasonable doubt as to the defendants' guilt, then I charge you that it is your duty to find the defendants not guilty.\\\"\\nThis instruction seems to intend to throw the .evidence of good character into the scales on the side of the prosecution; \\\"if, after a consideration of all the evidence in the cas\\u00e9, . . . [still] the jury entertains a reasonable doubt,\\\" they must acquit; if, after having considered the evidence of good character, they entertain a reasonable doubt. The instruction certainly does not inform the jury that good character in connection with all the other testimony may generate a reasonable doubt, and therefore entitle the defendants to an acquittal.\\nThe instructions given on the subject of good character do not correctly state the law on that subject, and are calculated to confuse the jury. The instruction refused does state the correct rule, and the evidence in this case presents a contingency for the application of the rule and the giving of such instruction.\\n\\u2022 Upon the whole record, in view of the unsatisfactory state of the evidence, the judgment of conviction must he reversed, and the cause remanded for a new trial. It is not our purpose to notice other alleged errors, because upon another trial such errors, if any, will be avoided.\\nReversed and remanded.\\nROSS and BAKER, JJ., concur.\"}"
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+"{\"id\": \"493252\", \"name\": \"STATE of Arizona, Appellee, v. Robert LEE, Appellant\", \"name_abbreviation\": \"State v. Lee\", \"decision_date\": \"1998-05-28\", \"docket_number\": \"No. CR-97-0100-PR\", \"first_page\": \"542\", \"last_page\": \"550\", \"citations\": \"191 Ariz. 542\", \"volume\": \"191\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:04:25.456927+00:00\", \"provenance\": \"CAP\", \"judges\": \"FELDMAN and MOELLER, JJ., concur.\", \"parties\": \"STATE of Arizona, Appellee, v. Robert LEE, Appellant.\", \"head_matter\": \"959 P.2d 799\\nSTATE of Arizona, Appellee, v. Robert LEE, Appellant.\\nNo. CR-97-0100-PR.\\nSupreme Court of Arizona, En Banc.\\nMay 28, 1998.\\nGrant Woods, Attorney General by J.D. Nielsen, Assistant Attorney General, Phoenix, for Appellee.\\nDean W. Trebeseh, Maricopa County Public Defender by Terry J. Adams, Deputy Public Defender, Phoenix, for Appellant.\", \"word_count\": \"4554\", \"char_count\": \"27679\", \"text\": \"OPINION\\nZLAKET, Chief Justice.\\n\\u00b6 1 Shortly before midnight on October 21, 1994, Robert Lee entered Terminal 3 at Phoenix Sky Harbor Airport carrying a fairly new, hard-sided suitcase. He stopped a few feet in front of the American Trans Air ticket counter and put the bag down. Moments later, Myrtis Harrison hurried into the terminal, walked directly to the counter, and purchased two tickets on a flight leaving within minutes for Chicago. Lee joined Harrison at the counter, setting the suitcase on the luggage stand.\\n\\u00b6 2 An undercover officer with the Phoenix Commercial Drug Interdiction Unit noticed Lee's entrance into the terminal. The officer watched him for a few minutes and, when the suitcase had been checked and placed on the baggage conveyor, contacted another narcotics agent who had a dog trained to detect drugs. In the baggage area, the dog \\\"alerted\\\" to the suitcase. The detectives then seized the luggage and arrested both Lee and Harrison near the ticket counter. Harrison had in her possession the baggage claim check, and Lee had keys in his pocket that fit the luggage. After obtaining a search warrant, police opened the suitcase. Inside, along with a garment bag holding Harrison's clothing, were six heat-sealed plastic packages containing four kilograms of marijuana.\\n\\u00b63 Harrison and Lee were each charged with possession for sale of marijuana weighing four pounds or more, and transportation for sale of marijuana weighing over two pounds, both class 2 felonies. Early in the proceedings, the state and the defendants agreed to a severance. Judge Peter D'Angelo granted their stipulated motion. About six months later, Harrison reversed her position and moved to consolidate the cases. The state , opposed the motion because it had already offered Lee a plea agreement, the terms of which would have allowed him to plead guilty to a class 4 felony provided he testified at Harrison's trial. The state indicated that it would likely withdraw the plea offer if the motion to consolidate was granted. Judge D'Angelo denied the motion.\\n\\u00b6 4 A few weeks later, on the eve of jury selection in Harrison's trial, Judge Paul Katz on his own initiative ordered the cases reconsolidated. The state withdrew Lee's plea offer and the defendants were tried together. The jury acquitted Harrison, but found Lee guilty on both counts. The court of appeals affirmed by memorandum decision.\\nCONSOLIDATION\\n\\u00b6 5 Defendant claims that the trial court erred when it consolidated these cases because it interfered with a pending plea offer. We examine the record for a clear abuse of discretion. See State v. Kinkade, 140 Ariz. 91, 93, 680 P.2d 801, 803 (1984).\\n\\u00b6 6 Defendants may be joined \\\"by the court or upon motion of either party, provided that the ends of justice will not be defeated thereby.\\\" Ariz. R.Crim. P. 13.3(c) (emphasis added). Lee argues that following consolidation, the state no longer had any incentive to plea bargain and he was unfairly deprived of the opportunity to obtain a favorable deal. We observe, however, that a defendant is not entitled to a plea offer as a matter of right. See State v. Morse, 127 Ariz. 25, 31, 617 P.2d 1141, 1147 (1980). Plea bargaining is nothing more than a pragmatic tool for enhancing judicial economy, conserving state resources, and promoting justice. See id. at 32, 617 P.2d at 1148.\\n\\u00b6 7 While the state and a defendant may negotiate over \\\"any aspect\\\" of a case, including sentencing, the trial court ultimately has authority to approve or reject a bargain in the interests of justice. See Ariz. R.Crim. P. 17.4(d). Such a decision falls within the judge's sound discretion, and wide latitude is permitted in this regard. See State v. De Nistor, 143 Ariz. 407, 411, 694 P.2d 237, 241 (1985).\\n\\u00b6 8 The transcript of the pretrial hearing, in which Judge Katz raised reconsolidation on his own initiative, shows that he knew of the state's plea offer and recognized that if the cases were joined for trial, Lee would likely refuse to testify in order to avoid incriminating himself. He stated:\\nThe State should either enter a plea agreement with Mr. Lee or it shouldn't____if the State feels that its case against Mr. Lee is weak or deficient or the State feels that he is the less culpable defendant, if it in good faith believes that the plea agreement [that] has been offered to him . is appropriate, it ought to be entered on the record of this court or the State is free to withdraw from it or Mr. Lee is free to withdraw from it.\\n\\u00b6 9 The record indicates that Judge Katz complied with Rule 13.3(c). He reviewed the complete file, weighed the evidence advanced at the hearing, and considered the arguments of counsel. In the end, the judge found no \\\"real articulable reason\\\" or \\\"legal ground\\\" to maintain separate trials other than the creation of a favorable environment for Lee's plea agreement. We find no abuse of discretion.\\nDRUG COURIER PROFILE TESTIMONY\\n\\u00b6 10 Defendant further asserts that the trial court erred in admitting drug courier profile testimony as substantive evidence of guilt. A drug courier profile is a loose assortment of general, often contradictory, characteristics and behaviors used by police officers to explain their reasons for stopping and questioning persons about possible illegal drug activity. See Mark J. Kadish, The Drug Courier Profile: In Planes, Trains, and Automobiles; And Now in the Jury Box, 46 Am. U.L.Rev. 747, 748 (1997). No nationally recognized profile exists, and law enforcement agencies, even individual officers, develop their own \\\"profiles\\\" based on experience. See id. Courts commonly describe drug courier profiles as an \\\"informal compilation of characteristics\\\" or an \\\"abstract of characteristics\\\" typically displayed by persons trafficking in illegal drugs. See Reid v. Georgia, 448 U.S. 438, 440-41, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980); Florida v. Royer, 460 U.S. 491, 493, 103 S.Ct. 1319, 1322, 75 L.Ed.2d 229 (1983).\\n\\u00b6 11 Generally, such profile evidence is offered in the context of suppression and probable cause hearings, where law enforcement's justification for a stop, arrest, or confiscation is at issue. See, e.g., Royer, 460 U.S. at 502, 103 S.Ct. at 1326 (noting that mannerisms and other characteristics matching a \\\"drug courier profile\\\" may be sufficient grounds for a brief investigative police stop). Increasingly, however, profiles have been used for other purposes: (1) as background for a police stop and search, see United States v. Gomez-Norena, 908 F.2d 497, 501 (9th Cir.1990) (finding no error in using a drug courier profile to provide jurors with a full portrayal of events surrounding arrest); (2) as foundation for expert opinions, see United States v. Webb, 115 F.3d 711, 715 (9th Cir.1997) (permitting drug courier profile testimony of police expert to assist jury in understanding why a person would conceal a weapon in the engine of a car); (3) to explain a method of operation, see United States v. Cordoba, 104 F.3d 225, 230 (9th Cir.1996) (approving the use of drug courier profile testimony to \\\"assist the jury in understanding modus operand! in a complex criminal ease\\\"); and (4) as rebuttal evidence, see United States v. Beltran-Rios, 878 F.2d 1208, 1213 (9th Cir.1989) (\\\"The Government may introduce profile testimony . only to rebut specific attempts by the defense to suggest innocence based on the particular characteristics described in the profile.\\\").\\n\\u00b6 12 Notwithstanding these exceptions, a significant majority of jurisdictions have condemned the use of drug courier profile evidence as substantive proof of guilt. See State v. Walker, 181 Ariz. 475, 481, 891 P.2d 942, 948 (App.1995) (citing cases from the Fourth, Fifth, Eighth, Ninth, and Eleventh federal circuits, as well as various state courts). We agree with this position. As our court of appeals has stated in the context of car thefts, the \\\"use of profile evidence to indicate guilt . creates too high a risk that a defendant will be convicted not for what he did but for what others are doing.\\\" State v. Cifuentes, 171 Ariz. 257, 257, 830 P.2d 469, 469 (App.1991). This observation is particularly relevant to the case before us.\\n\\u00b6 13 To obtain a conviction of possession or transportation for sale, the state had to prove that the defendant knew there was marijuana in the suitcase. See A.R.S. \\u00a7 13-3405(A)(2)(\\\"A person shall not knowingly possess marijuana for sale.\\\"); A.R.S. \\u00a7 13-3405(A)(4)(\\\"A person shall not knowingly transport for sale, import into this state or offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer marijuana.\\\"). Under Arizona law and the jury instructions here, \\\"knowingly\\\" means having an awareness or belief of the conduct at issue. A.R.S. \\u00a7 13 \\u2014 105(9)(b) (West Supp. 1996) (formerly \\u00a7 13 \\u2014 105(6)(b)). In attempting to prove such knowledge, the prosecutor elicited testimony from Officer Galbari, who said that she stopped Lee and Harrison because they were toting a \\\"large hard-sided plastic suitcase,\\\" were taking the \\\"last flight out to Chicago,\\\" a \\\"very high demand area for the shipment of illegal drugs from Arizona,\\\" and \\\"in my experience working at the airport for four years and contacting people that do have illegal drugs with them, they more often then not check in extremely late for their departing flights.\\\" The dog's positive alert subsequently supported the officer's suspicions.\\n\\u00b6 14 The attorneys for both Harrison and Lee objected to the testimony and later moved to strike it. The state argued that the evidence was necessary to meet its burden of proof. Because this was a transportation and possession for sale case, it said,\\nwe have the right to show drug courier activities and how consistent this was with them____ Part of their knowledge would go to the fact that their actions are consistent with drug couriers and drug activities. And they do have knowledge of it because their actions are consistent with it.\\nThe fault in this reasoning lies in the assumption that because someone shares characteristics \\u2014 -many of them innocent and commonplace \\u2014 with a certain type of offender, that individual must also possess the same criminal culpability.\\n\\u00b6 15 The trial judge might have salvaged the situation at this point by striking the testimony. Instead, he allowed the line of questioning to continue, permitting the state to introduce concepts such as \\\"demand\\\" cities (away from the borders where illegal drugs are highly coveted) and \\\"source\\\" cities (such as Phoenix, with easy access to Mexican suppliers).\\n\\u00b6 16 Matters only worsened when Harrison's counsel began his cross-examination of Officer Galbari: \\\"Well, let's go over your courier profile that you were talking about earlier.\\\" Harrison's attorney then pursued at length the factors that the officer had relied on to make the arrest. He explored the significance of hard versus soft-sided luggage, the lack of identification on the bag, the time of day of the flight, destination and departure cities, the gender and age of the typical courier, and other patterns of behavior. Counsel's apparent purpose was to undermine the reliability of this type of information, but in emphasizing it he effectively encouraged the jurors to mentally compare the defendant's actions with the profile being discussed.\\n\\u00b6 17 The following day, the judge heard argument on motions to strike the testimony or declare a mistrial. He ultimately found no error in admitting the evidence. For the remainder of the trial, the courier profile theme became a steady refrain, in direct testimony, cross-examination, and closing argument.\\n\\u00b6 18 We find that at least by the time of Officer Galbari's cross-examination, the prejudicial effect of the drug courier profile was apparent. This evidence, however, should not have been admitted in the first instance since its only purpose was to suggest that because the aecuseds' behavior was consistent with that of known drug couriers, they likewise must have been couriers. It makes no difference to our conclusion that counsel for the co-defendant' contributed to the harm. Neither is the state's justification for offering the evidence of any convincing import. By the time of trial, the reasons for the arresting officers' suspicions were no longer relevant. This was not a suppression hearing, nor was there an unresolved issue of probable cause. The state had to prove beyond a reasonable doubt defendants' awareness or belief as to the possession and transportation for sale of marijuana. Such an element could not be supplied by means of a drug courier profile. To hold otherwise would open the door to all sorts of \\\"profiles\\\" developed by individual law enforcement officers in various settings, both in and out of drug enforcement. Guilt by association with certain \\\"characteristics\\\" is .the obvious danger of such a scenario, and easily explains why the \\\"split of authority\\\" noted by the dissent is so lopsided in favor of the stance we take today.\\n\\u00b6 19 As noted above, there may be situations in which drug courier profile evidence has significance beyond the mere suggestion that because an accused's conduct is similar to that of other proven violators, he too must be guilty. This is not one of those situations. Moreover, we do not agree with the court of appeals or our dissenting colleagues that the admission of this evidence was harmless. For such a conclusion to stand, we would have to find \\\"beyond a reasonable doubt, that the error did not contribute to or affect the verdict.\\\" State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993); see also State v. McVay, 127 Ariz. 450, 453, 622 P.2d 9, 12 (1980). Here, there were two defendants but only one suitcase. No fingerprints were found inside the luggage, no one testified to having seen the drugs packed, and no other evidence was introduced linking either defendant directly to the contents of the suitcase. Consequently, the profile testimony might well have weighed heavily in the jury's evaluation of the knowledge issue. From our vantage point, it cannot be said beyond a reasonable doubt that this evidence did not affect the verdict.\\n\\u00b620 The trial judge obviously attempted to repair the damage with the following instruction:\\nEvidence of other investigations by the police officers involved in this case and evidence regarding the basis for their suspicions of the defendants has been admitted into evidence in this case. Such evidence is not to be considered by you to prove the character of the defendants or to show that they committed the offenses charged. It may, however, be considered by you regarding the police investigation techniques utilized in this case.\\nThis charge, however, failed to specifically identify the drug courier testimony as that which the jury was prohibited from considering. Moreover, we conclude that it was inadequate to obviate the risk of prejudice. See State v. Grannis, 183 Ariz. 52, 58, 900 P.2d 1, 7 (1995) (citing State v. Runningeagle, 176 Ariz. 59, 68, 859 P.2d 169, 178 (1993)).\\n\\u00b6 21 The dissenters claim to find support for their harmless error analysis in United States v. Lui, 941 F.2d 844 (9th Cir.1991). We respectfully disagree. The evidence of guilt in Lai was much stronger than in this case. In the first place, Lui was alone. Moreover, he had arrived in Los Angeles from Hong Kong following a ten day stop in Taiwan and two days in Korea. He was being checked through international customs when the inspector denoted some degree of nervousness. But that was not all. Even though Lui told the inspector he had come to the United States to show jade figurine samples to a relative, he had not claimed them on his customs declaration. He thereafter identified his own bags. He never asserted that anyone else owned or had access to them. Behind false siding, the customs inspector found over twelve kilograms of nearly 96 percent pure heroin.\\n\\u00b6 22 The independent evidence of guilt in the Seventh Circuit case cited by the dissent, United States v. Foster, 939 F.2d 445 (7th Cir.1991), was even more overwhelming. In any event, none of the federal eases referred to, directly or indirectly, are binding on us. They may be helpful in providing guidance, but that is all. We deal here exclusively with a matter of state law.\\nSEVERANCE\\n\\u00b6 23 Both defense counsel moved for severance on more than one occasion during the trial. Defendant Lee contends a severance was required once it became apparent that he and Harrison were offering \\\"antagonistic defenses.\\\" State v. Cruz, 137 Ariz. 541, 545, 672 P.2d 470, 474 (1983) (holding that the trial judge must sever when defenses are so antagonistic as to be mutually exclusive). While the record suggests that the parties' defenses were mutually exclusive and antagonistic, each side implying the other had secreted the drugs in the suitcase, we need not decide this issue in view of our disposition on other grounds.\\nDISPOSITION\\n\\u00b624 Because drug courier profile testimony was improperly admitted as substantive proof of guilt, and we cannot say that this error was harmless, we reverse and remand for a new trial.\\nFELDMAN and MOELLER, JJ., concur.\"}"
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+"{\"id\": \"4942079\", \"name\": \"G. F. McFADDEN, Appellant, v. ELLA McFADDEN, Appellee\", \"name_abbreviation\": \"McFadden v. McFadden\", \"decision_date\": \"1921-03-30\", \"docket_number\": \"Civil No. 1866\", \"first_page\": \"246\", \"last_page\": \"253\", \"citations\": \"22 Ariz. 246\", \"volume\": \"22\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T23:14:33.875996+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"G. F. McFADDEN, Appellant, v. ELLA McFADDEN, Appellee.\", \"head_matter\": \"[Civil No. 1866.\\nFiled March 30, 1921.]\\n[196 Pac. 452.]\\nG. F. McFADDEN, Appellant, v. ELLA McFADDEN, Appellee.\\n1. Tbial \\u2014 Minute Entry not \\u201cFindings\\u201d of Fact Required by Statute. \\u2014 The minute entry is not findings of the eourt within the meaning of Civil Code of 1913, paragraph 528, which mates it the duty of the court to make written findings of fact, stating the facts found by the court and the conclusions of law separately, the minute entry being only evidence that the court ordered a judgment, the terms thereof to be ascertained when it was written up and signed by the eourt.\\n2. Judgment \\u2014 To Prevail Over Conflicting Minute Entry. \\u2014 Where there is a conflict between entry made by the' clerk in the minutes and the solemn judgment of the eourt, the terms of the latter should be given force and effect rather than those of the former.\\n3. Divorce \\u2014 Child's Age, Health, and Sex Material in Determining Custody. \\u2014 On divorce, in determining who should have custody of a child, the court should choose the one most suitably fitted to assume and properly discharge the parental care that the child\\u2019s age, sex, health, training, and education demand; the child's welfare being the paramount consideration.\\n3. On effect of provision in deeree of divorce or separation on right of parent to custody of child, see note in 41 L. R. A. (N. S.) 597.\\n4. Divorce \\u2014 Custody of Child of Tender Years Awarded the Mother on Divorce. \\u2014 On divorce the custody of a child of tender years needing a mother\\u2019s care and attention, all other things being equal, will be awarded to its mother.\\n5. Divorce \\u2014 Court Need not Davor Successful Party in Dividing Property. \\u2014 Civil Code of 1913, paragraph 3862,, as amended by Laws of 1919, chapter 65, relating to the division of property on divorce, does not require the court to favor the party succeeding, but leaves the whole matter open to inquiry and investigation, and gives the court a freedom controlled only by its sense of justice and right, and where wife originally contributed $1,300 and husband $200 to community, it cannot be said that the court erred in awarding $4,500 to wife and $1,000 to husband; the wife also being awarded custody of a minor child.\\n6. Divorce \\u2014 Allowing Alimony to Wife, Who was in the Wrong, Largely Discretionary. \\u2014 The general rule under Civil Code of 1913, paragraph 3869, is that where a divorce is granted because of the wrongful conduct of the wife, she should not be given permanent alimony, but this rule has its exceptions, and whether it should be followed or not in a given case is left largely to the discretion of the trial court.\\n7. Divorce \\u2014 Father Should be Permitted to Visit Child Whose Custody was Awarded Wife. \\u2014 Decree of divorce; granted husband by reason of desertion of wife and awarding custody of a child of tender years to the wife, should provide that the father might see or visit the child at seasonable and proper times.\\n6. Eight of wife to alimony where divorce is granted against her, note, 20 Ann. Cas. 24; Ann. Cas. 1915C, 1254.\\nAPPEAL from a judgment of the Superior Court of the County of Maricopa. P. H. Lyman, Judge.\\nModified and affirmed.\\nMessrs. Hayes & Allee, for Appellant.\\nMr. Gr. W. Silverthorn, for Appellee.\", \"word_count\": \"2474\", \"char_count\": \"14259\", \"text\": \"ROSS, C. J\\nAppellee filed lier complaint against appellant, charging Mm with cruelty and failure to provide; asked for a dissolution of the marriage re lation, for a division of the community property, the custody of the four year,old child \\u2014 issue of said marriage \\u2014 and for the sum of fifty dollars per month for the support of herself and - child.\\nAppellant denied the charges of cruelty and failure to provide, and by way of cross-complaint, claimed the right to a divorce from the appellee on the grounds of willful desertion; asked for a division of the community property, and that he be given the custody of the minor child.\\nUpon the date set for trial, appellee failed to put in an appearance, either personally or by attorney; and such inattention not being shown to be excusable, at the request of appellant, the court proceeded to hear the evidence of appellant in support of his cross-complaint.\\nThe admissions in the pleadings and the evidence presented, in brief, the following facts: That appellee and appellant were married in the year 1911 at Frederickstown, Missouri. At the time appellee had thirteen hundred dollars and the appellant had two hundred dollars. These sums were invested in different enterprises, and, with the joint labors and efforts of both of them, grew until in 1917 their total amounted to some seven thousand dollars. In October, 1917, they removed to Mesa, Arizona, where they were residing at the time of the institution of the suit. At Mesa they bought a home, paying therefor seventeen hundred and fifty dollars. . The rest of the community property consisted of an automobile, household furniture, a cow, some chickens, three hundred and forty-four dollars in cash, and notes on parties living in Missouri for the sum of twenty-five hundred dollars.'\\nFrom a reading of the evidence as it is written out, it is difficult to say who, or whether either one of the parties, is seriously at fault. \\\"While all the witnesses were appellant's, and there were several of them, there is no direct word of accusation Qr condemnation of the appellee. They likewise vouch for the good behavior, industry, and kindliness of the appellant.\\nAfter holding the case under advisement some ninety days, the court rendered its decree. In the minute entry it is recited that\\u2014\\nThe court \\\"finds that the defendant [appellant] is entitled to the relief prayed for in his cross-complaint; and it is ordered that a judgment be entered herein for the defendant in accordance with such findings, which said judgment, when signed by the court, shall be entered in the judgment-book.\\\"\\nOn the same date the court signed a formal judgment in which the marriage bonds were dissolved upon the evidence in support of the cross-complaint for desertion. The appellee was given the custody of the minor child. It was decreed that appellee be \\\"awarded as and for her separate property, and freed from all claims of defendant, as permanent alimony and as her share of the community property,\\\" the home at Mesa, Arizona, notes for the sum of twenty-five hundred dollars, certain household furniture, and one cow; that the appellant be awarded one automobile, chickens, furniture, and three hundred and forty-four dollars in cash.\\nThe first assignment appellant makes is that the decree of the court was entirely inconsistent with and contradictory of the findings and order for judgment, and he argues that the findings and the order for judgment should prevail over the formal judgment and decree signed by the judge.\\nThat there is conflict, between the minute entry and the formal judgment is plain to be seen. We think, however, appellant, when he designates the minute entry as the findings of the court, is in error. When a case is tried by the court, the statute (paragraph 528, Civ. Code) makes it the duty of the court, at the request of either party, to make written findings of fact, stating the facts found by the court and the conclusions of law - separately. The minute entry is not in conformity with this statute; it being the record kept by the clerk only. There are no written findings of fact by the court on file in the record. At most, we think the minute entry is evidence that the court ordered a judgment, the terms thereof to be ascertained when it was written up and signed by the court.\\nMoreover, we think, in conformity with the rule in at least one jurisdiction, that where there is conflict between the entry made by the clerk in the minutes and the solemn judgment of the court, the terms of the latter should be given force and effect, rather than of the former. Gould v. Austin, 52 Wash. 457, 100 Pac. 1029; Landry v. Seattle Ry. Co., 100 Wash. 453, 171 Pac. 231.\\nIt is nest contended by the appellant that the decree in awarding the custody of the child to appellee, and in awarding her permanent alimony, and in the division of the community property, was - not sustained by the evidence, and is contrary to law. As to the fitness and ability of the parents to have and care for the minor child, it cannot be said, as we read the cold record, that the evidence preponderates either way. The child, a boy, is of very tender years, and should have, if possible, the care and affection .of his mother. This fact, doubtless, had weight with the court in awarding his custody. The court also had the advantage of seeing- and observing the appellant, his manner and demeanor, and may have concluded therefrom that he was not the proper person to have the child. While the evidence shows the mother to be in delicate health, it also shows the father to be \\\"suffering from tuberculosis.\\\"\\nNaturally, the claims of the father and mother to the custody of their offspring are equal when shorn of every other consideration than parenthood, and as long as the marriage status is maintained the law recognizes these natural claims. When, however, the heads of the family disagree and apply to the courts for a dissolution of the marriage relation, and it is no longer possible for the child to have their joint aid, comfort, and support, but that of only one of them, the courts invariably should choose the one most suitably fitted to assume and properly discharge the parental care that the child's age, sex, health, training, and education demand. The latter's welfare then becomes the paramount consideration. 19 C. J. 344, \\u00a7 797. We are not able to say from the record that the court improperly exercised its judgment and discretion in the present case in awarding the custody of the child to the mother. The rule seems to be if the child is of tender years, needing a mother's care and attention, all other things being equal, preference should be given her in its award (14 Cyc. 807; 19 C. J. 345, \\u00a7 799; 9 R. C. L. 476), and this rule is sometimes followed, even though she is not the prevailing party in the suit for divorce, if the court is satisfied it is for the best interests of the child; that always being the paramount consideration. 19 C. J. 345, \\u00a7 800.\\nThe statute (paragraph 3862, Civ. Code), as amended by chapter 65, Laws of 1919, makes it the duty of the court, before pronouncing a decree of divorce, to take evidence of the property and estates of the parties, and to divide the same between the parties \\\"as to the court shall seem just and right, having due regard for the rights of each party and their children, if any.\\\" This provision of the law was observed in the trial of this case. In making the division the court favored the wife and mother by de creeing to her considerably more of the property than to the husband and father, but in doing so he doubtless took into consideration that she had contributed to the original capital the major portion of the funds, and also that she, in all probability, would bear most, if not all, the burden of educating and caring for the minor child.\\nThe statute does not require the court to favor the party succeeding in the divorce suit, but leaves the whole matter open to inquiry and investigation, and gives the court a freedom controlled only by the court's sense of \\\"justice and right,\\\" after familiarizing himself with the parties' respective contributions in labor and capital, and their immediate and prospective needs and burdens and deserts. The appellee's contribution was originally thirteen hundred dollars and the appellant's two hundred dollars. The award in the judgment was about four thousand five hundred dollars to appellee,- and about one thousand dollars to appellant, which is not much out of proportion to their contributions.\\nIt is evident from the language employed in the decree that the court intended to divide the community property as authorized by the above statute, and also \\\"in addition to the division of the common property . . . direct the husband to pay to the wife such amounts as may be necessary for the support and maintenance of the wife\\\" and minor child, \\\"said amount to be paid in one sum,\\\" as provided in paragraph 3869 of the Civil Code, as her apportionment is described in the decree \\\"as permanent alimony and as her share of the community property.\\\"\\nThe general rule is that where a divorce is granted because of the wrongful conduct of the wife, she should not be given permanent alimony. 19 C. J. 244, \\u00a7 568. Paragraph 3869 of the Civil Code, concerning permanent alimony, does not so provide, but courts of other states with similar statutes have so stated the rale. We approve the rale as a wholesome one, founded upon a wise public policy; but to give it uniform application would often result in great injustice, so it has its exceptions, and whether it should be followed or not in a given case is left largely to the discretion of the trial court. Each case is a problem in itself that must be solved according to its own facts and circumstances, and the solution by the trial court will not ordinarily be disturbed unless clearly or palpably erroneous.\\nWhat amount of the award to the appellee was estimated as permanent alimony we have no means of ascertaining, as it is not stated in the decree. As we have seen, the division could well have been made in the proportions in the decree solely under the community property statute without any apparent injustice to appellant. In such circumstances, even though it should be granted that under the facts of this case appellee was not entitled to any allowance as permanent alimony as snch, appellant could not complain; the division as made being justified under the community property statute.\\nThe decree does not provide that the father may see or visit the child, and in that respect we think it should be modified and in all other respects affirmed.\\nThe cause is remanded, with directions to the trial court to modify said judgment so as to permit the father, at seasonable and proper times, to visit his child, the said right of visitation to be fixed and determined according to the facts and circumstances as they may appear.\\nIt is also directed that each party shall pay his own costs.\\nBAKER and McALISTER, JJ., concur.\"}"
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+"{\"id\": \"4972578\", \"name\": \"MARYLAND CASUALTY COMPANY, a Corporation, Appellant, v. W. O. SWEEK, Appellee\", \"name_abbreviation\": \"Maryland Casualty Co. v. Sweek\", \"decision_date\": \"1925-05-22\", \"docket_number\": \"Civil No. 2244\", \"first_page\": \"258\", \"last_page\": \"263\", \"citations\": \"28 Ariz. 258\", \"volume\": \"28\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T19:34:13.197575+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARYLAND CASUALTY COMPANY, a Corporation, Appellant, v. W. O. SWEEK, Appellee.\", \"head_matter\": \"Civil No. 2244.\\nFiled May 22, 1925.]\\n[236 Pac. 720.]\\nMARYLAND CASUALTY COMPANY, a Corporation, Appellant, v. W. O. SWEEK, Appellee.\\nMr. B. E. Marks, for Appellant.\\nMessrs. Baker & Whitney, for Appellee.\", \"word_count\": \"1109\", \"char_count\": \"6532\", \"text\": \"LOCKWOOD, J.\\nW. O. Sweek, hereinafter called plaintiff, brought suit against the Maryland Casualty Company, a corporation and Troy A. Hamm, herein after called defendants, for professional services which he claimed to have rendered defendant Hamm at the special instance and request of both defendants,' and for which they promised to pay the reasonable value of such services, which plaintiff alleged to be Four Hundred and Seventy-four Dollars ($474.00). Defendant company filed a general demurrer and an answer, the material allegations of which read as follows:\\n\\\"II. Answering paragraph II of said complaint, the defendant alleges that it did authorize the plaintiff to perform an operation upon the defendant Troy A. Hamm, and that it agreed to pay therefor the sum of one hundred and fifty ($150.00) dollars, and no more, and plaintiff agreed to perform said opera-tion for said sum of one hundred and fifty ($150.00) dollars. And this defendant does now tender to the plaintiff and delivers to the clerk of this court for the benefit of the plaintiff, said sum of one hundred and fifty ($150.00) dollars.\\n\\\"III. This defendant denies that it requested or authorized any other or future services to be rendered by the plaintiff for said defendant Troy A. Hamm, than in the foregoing paragraph is alleged.\\n\\\"IV. This defendant denies that it promised and agreed to pay the plaintiff for any services and labors other than above admitted and in any greater sum or amount than in this amended answer is tendered.'\\n\\\"V. This defendant having no information upon which to base either an admission or denial, neither admits or denies that the services and labors alleged to have been performed by the plaintiff for the defendant Troy A. Hamm are reasonably worth the sum of four hundred and seventy-four ($474.00) dollars, but in this behalf this defendant alleges that in so far as it is concerned it agreed to pay to plaintiff for that certain operation performed by plaintiff upon said Troy A. Hamm the sum of one hundred and fifty ($150.00) dollars, and no more.\\n\\\"VI. This defendant denies each and every allegation in plaintiff's complaint contained not herein specifically admitted.\\\"\\nTlie case was tried to a jury, which returned a verdict of Four Hundred Dollars ($400.00) in favor of plaintiff. The usual motion for a new trial being denied, defendant company appealed.\\nThe first alleged error is that the court instructed the jury there was no denial the services were worth the sum set up in the complaint. Paragraph V of the answer states that defendant neither admits or denies the value of the alleged services, on the ground of lack of knowledge. It is contended, however, by defendants that the general denial is sufficient to cover that point. \\\"Whether or not in the face of the special allegation this be true, since the court instructed the jury that, notwithstanding there was no specific denial of the value, it was for the plaintiff to prove such value by the evidence, we do not think the jury could have been misled. The amount of the verdict itself shows clearly they realized the value of the services depended on the evidence, and not on any alleged admission in the answer. Had they construed the court's instruction to mean that the defendants admitted the value of the services, their verdict would have been for the full amount.\\nThe second assignment, to the effect that the statement, \\\"the employment is admitted, that is the general employment, to treat Troy A. Hamm,\\\" was an instruction that defendant admitted the full scope of the employment as alleged in the complaint, cannot be sustained when taken into consideration with all the instructions, although standing alone it would be misleading. As we have often held, instructions must be considered as a whole, and common sense in so doing is attributed to the jury. We think the jury must have considered the words \\\"general employment\\\" meant merely, when taken into consideration with all the evidence and the other instructions, that plaintiff was employed by defendant company to treat Hamm, which, of course, was true. The instruction was not happily worded, but we do not think it misled the jury.\\nThe answer complained of in assignment of error No. 3 was a natural and legitimate one in response to a question asked on cross-examination, and counsel, whose question brought forth the answer, may not now complain thereof.\\nThe fifth and sixth assignments go to the weight and sufficiency of the evidence and we can only say, since there was a conflict therein, the verdict of the jury is conclusive on that issue.\\nIt was clearly error, however, to allow the testimony of Dr. Tuthill on direct examination, as to what he charged for similar operations, to stand. Seasonable value is proved by the general customary charges for similar services, and not by what some particular person charges, and the witness stated he did not know the general custom. But, should the case be reversed for this reason? Appellate courts are becoming more and more reluctant, and we think properly, to reverse a case for error in procedure, which did not affect the result. If the evidence as to the value of the services had been in conflict, we might assume the error complained of had some effect, but none of the witnesses fixed the value of the services at less than the amount of the verdict, while some of them were considerably higher. Dr. Tut-hill's figure was the highest of all, but the jury did not accept it. Under these circumstances we do not think the erroneous admission of the testimony affected the result. The case was tried on the issue of whether or not there was a specific agreement for a definite sum to be paid. So far as the extent of services is concerned, the only witness for defendant company stated, \\\"I expect a physician should treat a man for what is wrong with him.\\\" The jury, on a direct conflict of evidence and on instructions which placed that issue clearly before them, found there was no agreement as to the price. Plaintiff was therefore entitled to recover on a quantum meruit, and the decision of the jury, as to the value of the service, was sustained by the evidence.\\nThere being no error of sufficient gravity to warrant a reversal in the record, the judgment is affirmed.\\nMcALISTER, O. J., and ROSS, J., concur.\"}"
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+"{\"id\": \"4986086\", \"name\": \"In the Matter of the Application of HERMAN LEWKOWITZ for a Writ of Habeas Corpus. HERMAN LEWKOWITZ, Petitioner, v. JERRY SULLIVAN, Sheriff of Maricopa County, State of Arizona, Respondent\", \"name_abbreviation\": \"Lewkowitz v. Sullivan\", \"decision_date\": \"1927-07-06\", \"docket_number\": \"Civil No. 2655\", \"first_page\": \"317\", \"last_page\": \"318\", \"citations\": \"32 Ariz. 317\", \"volume\": \"32\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:13:30.052401+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Application of HERMAN LEWKOWITZ for a Writ of Habeas Corpus. HERMAN LEWKOWITZ, Petitioner, v. JERRY SULLIVAN, Sheriff of Maricopa County, State of Arizona, Respondent.\", \"head_matter\": \"[Civil No. 2655.\\nFiled July 6, 1927.]\\n[257 Pac. 989.]\\nIn the Matter of the Application of HERMAN LEWKOWITZ for a Writ of Habeas Corpus. HERMAN LEWKOWITZ, Petitioner, v. JERRY SULLIVAN, Sheriff of Maricopa County, State of Arizona, Respondent.\\nMessrs. Alexander B. Baker, Edw. J. Flanigan, Thos. W. Nealon, Thos. J. Croaff, Joseph W. Conway, J. B. Zaversack, Henry H. Miller, Joseph E.\\nMorrison, Lin H. Orme, Jr., Gene S. Cunningham, Chas. A. Carson, Jr., A. T. La Prade, Hess Seaman, H. M. Van Denburgh, Joseph M. Holub and Thos. A. Flynn, for Petitioner.\\nMr. Geo. T. Wilson, County Attorney, and Mr. Benton Dick, Assistant County Attorney, and Messrs. F. C. Struckmeyer, F. H. Lyman and J. L. Gust, of counsel, for Respondent.\", \"word_count\": \"172\", \"char_count\": \"1020\", \"text\": \"McALISTER, J.\\nThis is a proceeding similar in all respects to that of Eotvard G. Spealcman v. Jerry Sullivan, Sheriff, just decided, ante, p. 307, 257 Pac. 986, and upon the authority of that case the petitioner herein, Herman Lewkowitz, is discharged.\\nROSS, C. J., and LOCKWOOD, J., concur.\"}"
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+"{\"id\": \"4987170\", \"name\": \"PHILIP BUNTMAN and GEORGE O. FORD, Appellants, v. THE CITY OF PHOENIX, a Municipal Corporation, and FRANK A. JEFFERSON, LUKE W. HENDERSON, J. A. R. IRVINE, CHARLES E. MORTON, and A. L. BOEHMER, as Members of the City Commission of the City of Phoenix, Appellees\", \"name_abbreviation\": \"Buntman v. City of Phoenix\", \"decision_date\": \"1927-04-18\", \"docket_number\": \"Civil No. 2620\", \"first_page\": \"18\", \"last_page\": \"29\", \"citations\": \"32 Ariz. 18\", \"volume\": \"32\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:13:30.052401+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"PHILIP BUNTMAN and GEORGE O. FORD, Appellants, v. THE CITY OF PHOENIX, a Municipal Corporation, and FRANK A. JEFFERSON, LUKE W. HENDERSON, J. A. R. IRVINE, CHARLES E. MORTON, and A. L. BOEHMER, as Members of the City Commission of the City of Phoenix, Appellees.\", \"head_matter\": \"[Civil No. 2620.\\nFiled April 18, 1927.]\\n[255 Pac. 490.]\\nPHILIP BUNTMAN and GEORGE O. FORD, Appellants, v. THE CITY OF PHOENIX, a Municipal Corporation, and FRANK A. JEFFERSON, LUKE W. HENDERSON, J. A. R. IRVINE, CHARLES E. MORTON, and A. L. BOEHMER, as Members of the City Commission of the City of Phoenix, Appellees.\\nMr. Will E. Ryan, Mr. Eobert McMurchie and Messrs. Stockton & Perry, for Appellants.\\nMr. W. L. Barnum and Mr. James E. Nelson, for Appellees.\", \"word_count\": \"3236\", \"char_count\": \"19172\", \"text\": \"LOCKWOOD, J.\\nPhilip Bnntman and George O. Ford, hereinafter called plaintiffs, applied to the superior court of Maricopa county for an injunction for bidding the city of Phoenix, a municipal corporation, hereinafter called the city, and its commissioners, from holding an election for the purpose of submitting to the taxpaying qualified electors of said city the question of whether or not it should issue $750,000 of its serial bonds for the purpose of the reconstruction and rehabilitation of the street railway system, which was then and is now owned and operated by the city. Plaintiffs, after the formal necessary allegations of such an action, set up as the vital point of their complaint that the city was without power or authority to issue such bonds, for the reason\\u2014\\n\\\"that the amount of the taxable property in said city of Phoenix, as ascertained by the last assessment for city purposes, is the sum of $49,870,521; that the present outstanding indebtedness of said city of Phoenix is $3,742,500; that said indebtedness is in excess of four per centum of said taxable property; and that said city of Phoenix is without power or authority and is forbidden by section 8, article 9, of the Constitution of Arizona, to become indebted to an amount in excess of four per centum of such taxable property for the purpose set out in this question so by said defendants proposed to be voted on at said special election for the purpose in said question stated. .\\\"\\nDefendants filed a general demurrer to the complaint, which the court, after considering the matter, sustained, and plaintiffs having elected to stand upon their complaint, judgment was rendered that the action be dismissed, and the matter is now before us for review on plaintiffs' appeal.\\nThere are two questions of law involved: First, whether or not the city of Phoenix is forbidden by the Constitution of the state of Arizona from incurring an indebtedness of the character and amount which it is proposed to authorize as aforesaid; and, second, even if it is not expressly so forbidden, has it affirmative authority granted whereby it may proceed to issue bonds for such purpose? We will consider these questions in their order.\\nSection 8, article 9, of the Constitution of Arizona, as originally adopted read as follows:\\n\\\"Sec. 8. No county, city, town, school district, or other municipal corporation shall for any purpose become indebted in any manner to an amount exceed- - ing four per centum of the taxable property in such 8 county, city, town, school district, or other municipal corporation, without the assent of a majority of the property taxpayers, who must also in all respects be qualified electors, therein voting at an election provided by law to be held for that purpose, the value of the taxable property therein to be ascertained by the last assessment for state and county purposes, previous to incurring such indebtedness; except, that in incorporated cities and towns assessments shall be taken from the last assessment for city or town purposes; provided, further, 'that any incorporated city or town, with such assent, may be allowed to become indebted to a larger amount, but not exceeding five per centum additional, for supplying such city or town with water, artificial light, or sewers, when the works for supplying such water, light or sewers are or shall be owned and controlled by the municipality.'\\\"\\nIn 1912 this was amended by adding after the second semicolon the following words:\\n\\\"Provided, that under no circumstances shall any county or school district become indebted to an amount exceeding ten per centum of such taxable property, as shown by the last assessment roll thereof,\\\"\\n\\u2014and changing the words \\\"five per centum\\\" in the last proviso of the original section to the words \\\"fifteen per centum,\\\" and, as so amended, the section is at present a part of the Constitution.\\nProvisions similar in character, though differing in language, are found in almost all state Constitu tions, and their purpose is always the same, to limit the amount of indebtedness which a municipality might otherwise incur through the acts of a corrupt or ignorant governing body, or the negligence and lack of farsightedness of the taxpayers themselves. JBut, as no two Constitutions have exactly the same language, the specific interpretation will depend upon the general principles of reason applied to the particular proviso.\\nOur constitutional provision above quoted is reasonably susceptible of two constructions. The first is that the municipality may incur an indebtedness up to four per cent of its assessed valuation for any legitimate city purpose; that all indebtedness of every nature, however incurred, must be charged against the four per cent until that limit is reached; and that so long as the total indebtedness of all classes amounts to four per cent, no increase can be had for any purpose whatever, except for water, artificial light and sewers, and for them only of an additional fifteen per cent and by the assent of the taxpaying electors, thus making the maximum indebtedness for all purposes nineteen per cent of the assessed valuation. A somewhat similar constitutional provision was before the Supreme Court of Montana in the ease of Butler v. Andrus, 35 Mont. 575, 90 Pac. 785, and the construction above set forth followed.\\nThe second is that, while the indebtedness of the city can in no case exceed a total of nineteen per cent it is divided into two separate classes, and the class into which any particular indebtedness must fall is determined by two things \\u2014 the manner in which it is incurred, and the purpose thereof; that all expenditures for water, light and sewers, authorized by a vote of the taxpaying electors, fall into the fifteen per cent class under all circumstances; that only expenditures which do not possess these two character istics are charged to the four per cent class; and that these two separate classes may fluctuate up and down, the one independent of the other, with the sole limitation that the one must not at any one time exceed four per cent while the maximum of the other is fifteen. The Supreme Court of the state of Washington has taken this view of a constitutional limitation of this class in the case of Austin v. City of Seattle, 2 Wash. 667, 27 Pac. 557.\\nWe are of the opinion that the latter construction is more consonant with reason and the presumable spirit and purpose of our Constitution. The construction first set forth would mean that, should a city incur an indebtedness of four per cent for the special enterprises set forth in the second proviso, it could never become indebted for any other legitimate municipal purpose unless and until the total indebtedness, including that for water, light, and sewer, was reduced below the four per cent. Such a construction would greatly limit and hamper our municipalities in the performance of their legitimate duties. A municipal water plant alone will generally cost more than four per cent of the assessed valuation of a city. That this was realized by the people is shown by the fact that the five per cent additional allowed by the original Constitution was promptly raised to fifteen per cent. If we are to construe section 8, supra, in accordance with the first theory, it would mean, in effect, that a city which put in a municipal water plant by that act surrendered the privilege of becoming indebted for any other purpose except lights and sewers; that parks, libraries, sanitary and police protection, and matters of similar nature could only be taken care of out of the current revenue. A city might have incurred an indebtedness up to the four per cent limit for general purposes, and thereafter have voted bonds for a water plant for fifteen per cent additional. By careful economy it might have used its current revenues to pay off the original bond issue for general purposes, with the idea that it would then be able to proceed with other needed municipal improvements, and still retain its total indebtedness within the nineteen per cent provided by the Constitution. But when it attempted to issue new bonds under such a theory it would be told that the water bonds, which, under the express provisions of the Constitution, were \\\"additional\\\" to the four per cent limit, and not originally included therein, had now by the mere fact of the reduction of the other indebtedness been automatically carried over into the first class and that it could incur no new indebtedness whatever for anything but water, light, and sewers until not only the original bonds issued under the four per cent clause for general purposes, but the vast majority of those issued under the fifteen per cent proviso for the special enterprises had been retired.\\nWe do not think that such a construction is correct, and we hold, therefore, in accordance with the views expressed in Austin v. City of Seattle, supra, that section 8 of article 9, when applied to municipalities, means that bonds issued by virtue of the proviso allowing such municipalities, with the assent of the taxpaying electors, to become indebted for the special purposes of water, artificial light and sewers, are not to be considered or counted when the question to be determined is whether or not a city has incurred an indebtedness in excess of the general four per cent limitation of the section. Since the complaint of plaintiffs does not disclose whether the indebtedness which it sets up comes within the fifteen per cent or the four per cent proviso of section 8, supra, as we have construed it, it did not show on its face a violation by the city of the constitutional limitation placed on its indebtedness.\\nThe second question is, Admitting for the sake of argument the city was not forbidden by the Constitution to issue the bonds in question, was it nevertheless authorized by law to do so? It is an accepted proposition of law that municipal corporations have no rights, powers or privileges not expressly conferred upon them by law or reasonably implied from their express powers, and in case such as this it is unquestionably necessary that the city be affirmatively authorized by law to issue the bonds. Does such authority exist? Article 13 of the Constitution deals with the organization of municipal corporations. Therein it is provided that any city containing a population of 3,500 \\\"may frame a charter for its own government consistent with, and subject to, the Constitution and the laws of the state .\\\" (section 2), and that when said charter is approved by the qualified electors of the city and by the Governor of the state, it shall become the organic law of the city. Said article 13 also provides in section 5 thereof:\\n\\\"Every municipal corporation within this state shall have the right to engage in any business or enterprise which may be engaged in by a person, firm, or corporation by virtue of a franchise from said municipal corporation.\\\"\\nThe city adopted a charter in pursuance of the foregoing provisions, which was duly approved by the Governor, and is still in force. In said charter it was provided that the city should have the right:\\n\\\"To acquire by purchase, condemnation, or otherwise, and to establish, maintain, equip, own, and operate telephone and telegraph systems, cable, electric, or other railways and transportation service of any kind. . . .\\n\\\"To borrow money for any of the purposes for which the city is authorized to provide for the carrying out any of the powers which the city is authorized to enjoy and exercise\\\", and to issue bonds therefor; providing that in the procedure for the creation and issuance of such bonded indebtedness the general laws of the state of Arizona, in force at the time such proceedings are taken, shall be observed and followed.\\\"\\n\\\"We have held, in the case of Schultz v. City of Phoenix, 18 Ariz. 35, 156 Pac. 75, construing this charter:\\n\\\"A city charter enacted by the voters of the municipality is as much a law as if it were enacted by the Legislature. ' '\\nA somewhat similar provision of the Colorado Constitution has been before the Supreme Court of that state in City and County of Denver v. Hallett, 34 Colo. 393, 83 Pac. 1066, in which case the court said:\\n\\\"The purpose of the twentieth article was to grant home rule to Denver and the other municipalities of the state, and it was intended to enlarge the powers beyond those usually granted by the Legislature; and so it was declared in the article that until the adoption of a new charter by the people, the charter as it then existed should be the charter of the municipality, and further that the people of Denver shall always have the exclusive power of making, altering, revising or amending their charter; and further that the charter, when adopted by the people, should be the organic law of the municipality and should supersede all other charters. It was intended to confer not only the powers specially mentioned, but to bestow upon the people of Denver every power possessed by the Legislature in the malting of a charter for Denver.\\\" (Italics ours.)\\nThe above provisions in the charter of the city are therefore equivalent to an act of the legislature granting the powers set forth therein.\\nIt is true, we held the provision of the Constitution authorizing cities and counties to engage in business was not self-executing, and that it required legislation before it could be put into effect. Bone v. Bowen, 20 Ariz. 592, 185 Pac. 133. The charter of the city of Phoenix, however, has supplied this necessary legislation, and the city is therefore fully and completely authorized to own, maintain and operate an electric street railway, to borrow money for that purpose, and to issue bonds therefor; the only limitation being that in the procedure for the creation of the debt and issuance of bonds the general laws of the state of Arizona should govern.\\nChapter 2 of title 52, Eevised Statutes of Arizona of 1913, Civil Code, deals with the question of municipal indebtedness, and we therefore turn to it to see what is required of the city when it attempts to issue bonds under its charter for the maintenance of its municipally owned and operated street railway. The first part of the chapter deals with the method of issuing bonds in excess of the four per cent limit, and so does not of itself apply to a bond issue which must be within that limit. Paragraph 5285 of said chapter, however, reads in part as follows:\\n\\\"Nothing in this chapter contained shall be construed to prevent any county, school district, city, town, or other municipal corporation from creating an indebtedness not exceeding four per centum of the value of the taxable property in such county, school district, city, town, or other municipal corporation; provided, that if such county, school district, city, town or other municipal corporation shall desire to fund such indebtedness by the issuance of bonds therefor, said bonds shall be issued in all respects in conformity with the provisions of this chapter, and, provided, further, that it will not be necessary to hold the election required to be held herein; provided, that bonds may be issued under the provisions of this chapter, for the construction and reconstruc tion of roads, bridges and highways; for the construction of public buildings, and for any other lawful or necessary purpose. The enumeration of the above mentioned purposes shall not be deemed as restrictive of the right to issue bonds for other purposes, but rather in furtherance thereof. .\\\"\\nThis paragraph has been before us for construction in the case of Board of Supervisors v. Hawkins, 16 Ariz. 16, 140 Pac. 821. In discussing the paragraph we said:\\n\\\"When it is considered that chapter 2 throughout treats of the creation of indebtedness by municipalities and the method and manner of evidencing such indebtedness as it is incurred, it may be that it was intended that the expression 'that if such county . . . shall desire to fund such indebtedness by the issuance of bonds therefor' should be construed to mean that bonds could be issued as the original or first evidence of the liability incurred and not the funding of a floating or outstanding debt.\\\"\\nThe court held, however, that it was not necessary to determine whether the first part of the paragraph applied for the reason that the last part expressly allowed bonds of the character in question in that case to be issued when authorized by an election. As will be seen, in addition to the provision for refunding, the paragraph states:\\n\\\"That bonds may be issued, under the provisions of this chapter for the construction and reconstruction of roads, bridges, and highways; for the construction of public buildings, and for any other lawful or necessary purpose. The enumeration of the above-mentioned purposes shall not be deemed as restrictive of the right to issue bonds for other purposes, but rather in furtherance thereof.\\\" (Italics ours.)\\nBonds of the character in question herein being for a lawful purpose, as we have shown above, the general provisions of chapter 2, title 52, supra, fur nish a legal and complete method whereby the city can issue them. To sum np, we hold (1) that, under section 8, article 9, Constitution of Arizona, in determining whether or not a municipality has incurred an indebtedness in excess of four per centum of its assessed valuation any indebtedness incurred for water, artificial lights and sewer, by and with the assent of a majority of the qualified electors who are property taxpayers, should not be considered; (2) that the city of Phoenix, by virtue of article 13 of the Constitution of Arizona and its charter duly adopted in pursuance thereof, is authorized to own, maintain and operate a street railway, and to borrow money and issue bonds for such purpose, so long as its total indebtedness computed as above set forth does not exceed fopr per centum of its assessed valuation; and (3) that, since the charter of the city of Phoenix has provided that bonds issued by the city shall be issued as provided by the general laws of the state of Arizona, the proper procedure to be followed is that set forth in the provisions of title 52 of said Civil Code of 1913.\\nSince plaintiffs' complaint failed to show affirmatively that the four per cent limit of indebtedness would be exceeded by the issuance of the bonds in question, and, since it does show affirmatively that the election against which an injunction was sought has been called in full conformity with the law if such limit is not exceeded, the trial court properly sustained the demurrer, and rendered judgment dismissing the action.\\nJudgment affirmed.\\nROSS, C. J., and McALISTER, J., concur.\"}"
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+"{\"id\": \"5011682\", \"name\": \"GEORGE ROSS, Appellant, v. L. A. CLARK and ETTA CLARK, His Wife, Appellees\", \"name_abbreviation\": \"Ross v. Clark\", \"decision_date\": \"1929-02-12\", \"docket_number\": \"Civil No. 2752\", \"first_page\": \"60\", \"last_page\": \"69\", \"citations\": \"35 Ariz. 60\", \"volume\": \"35\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T21:49:18.691634+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GEORGE ROSS, Appellant, v. L. A. CLARK and ETTA CLARK, His Wife, Appellees.\", \"head_matter\": \"[Civil No. 2752.\\nFiled February 12, 1929.]\\n[274 Pac. 639.]\\nGEORGE ROSS, Appellant, v. L. A. CLARK and ETTA CLARK, His Wife, Appellees.\\nSee Appeal and Error, 4 C. J., see. 2846, p. 869, n. 96, sec. 2847, p. 873, n. 23, see. 3139, p. 1139, n. 78, see. 3170, p. 1159, n. 39.\\nDamages, 17 C. J., sec. 268, p. 970, n. 79, see. 293, p. 994, n. 93, see. 457, p. 1117, n. 16.\\nMessrs. Sloan, Holton, McKesson & Scott and Mr. J. E. Bussell, for Appellant.\\nMessrs. Anderson & Grale, for Appellees.\", \"word_count\": \"2620\", \"char_count\": \"15054\", \"text\": \"ROSS, J.\\nThis is an action for damages for personal injuries growing out of an automobile collision that occurred on the streets of Prescott, on July 2d, 1928, during the Frontier Celebration.\\nDefendant, Boss, was a licensed taxicab driver, and at the time was engaged in taking persons to and from the fair grounds, where the celebration was being held. The plaintiffs, husband and wife, with the husband at the steering wheel of their automobile, late in the afternoon of that day, were driving north on the right side of the street, towards the fair grounds, and defendant, as it is alleged, in an intoxicated condition, was returning from the fair grounds, driving at a speed of fifty to sixty miles an hour, when he lost control of his ear and wantonly, culpably, and with utter disregard of the consequences to the life and limb of plaintiffs, and while their car was on the proper or right side of the street, crashed into and collided with the automobile of plaintiffs,\\n\\\"thereby throwing and hurling plaintiff, Etta Clark, through the windshield thereof, severely cutting, bruising and injuring her on and about her face, head, arms and body; and inflicting divers severe wounds and injuries upon her; and thereby throwing and hurling plaintiff, L. A. Clark, upon and against the steering wheel of plaintiffs' said automobile inflicting serious bruises and injuries upon his chest and lungs.\\n\\\"That at the time of said accident and collision plaintiff, Etta Clark, was sick and afflicted with tuberculosis, and that the severe physical shock attendant upon said collision has caused said disease to become more active and virulent, and has rendered her sick, sore and incapacitated, and has deprived her of a large part of the benefit of medical care, treatment and rest, and has caused plaintiffs to expend and incur large sums of money for further care and treatment rendered necessary by said collision and physical shock.\\\"\\nActual damages of $15,000 and punitive of $5,000 were prayed for.\\nPlaintiffs had a verdict for $12,000 actual and $3,000 punitive damages.\\nA motion for a new trial was overruled and judgment entered for the above amounts.\\nOn this appeal the issue of negligence is not contested, the defendant admitting that the finding of the jury thereon is sufficiently supported by the evidence and is final on that issue. But he does con tend: (1) That the damages of $12,000 are excessive and appear to have been given under the influence of passion and prejudice; (2) that there is an entire want of competent evidence supporting a verdict for $12,000 actual damages; (3) that there is no testimony from which the jury was warranted in awarding future damages, the evidence thereon being entirely speculative; (4) that the evidence does not warrant a verdict for punitive damages; and (5) that the court misdirected the jury as to the law of the case.\\nThe facts gleaned from the evidence bearing upon the issues raised by these assignments are as follows: Plaintiff Etta Clark was suffering with tuberculosis, and some two months before the accident, upon the advice of her physician in California, with her husband removed to Arizona in search of relief. They first went to Flagstaff, but on account of the high altitude were advised by a local physician to go to Prescott, where they arrived about one month prior to the accident. At Prescott plaintiff Etta Clark secured the services of Dr. John W. Flinn, a tuberculosis specialist, who examined her on June 6, 1927, | and found that she was suffering with tuberculosis, |j which he described as a low-grade active disease. He| directed her to go to bed and remain there, which she did for one month. On the date of the accident she and her husband had gone for a ride, that being the first time she had been out of bed from the date of her arrival in Prescott. It was testified by both the plaintiffs that Mrs. Clark was thrown forward, breaking the windshield of their car; that her forehead, nose and chin were cut and lacerated; that her eyes were black and swollen shut for several days; that she had bruises on her body, chest, and legs; that within an hour of the accident Dr. Southworth treated her at her home and made no further calls, and was consulted at his office by her husband only twice there after; that she visited Dr. Yount and was treated by him a mouth after the accident.\\nDrs. B. M. Looney and J. H. Allen, under an appointment by the court, examined the plaintiff Etta Clark a few days before the trial, and the diagnoses of these two physicians, made at the same time, are practically identical. Dr. Looney testified that at the time of the examination she was inclined to be hysterical; that this was manifested by marked twitching of the body and face, a tremulous voice, and crying; that he found a marked erythema, or a redness of the skin; that she was a well-developed and well-nourished woman; that her chest expansion was full and clear on both sides; that there was a marked fibrous or old tuberculosis scar on the upper part of both arms (probably meaning lungs); a few moist rales (meaning wheezing); that her pulse was 134 (normal 72); temperature 99.8 (normal 98.6); blood pressure 148 (normal 120 to 123). As to subjective symptoms, he said that she complained of severe pains and tenderness above the eighth or tenth dorsal vetebra, about the middle of the back. His diagnosis was [chronic pulmonary tuberculosis, probably active, in \\u00a1both lungs, and traumatic neurosis \\u2014 a condition due to trauma. As to the permanency of her nervous condition, Dr. Looney testified:\\n\\\"Q. Is such a-condition, Doctor, a permanent condition, probably? A. That is hard to say.\\n\\\"Q. What would you say, Doctor? A. I don't know. Sometimes it is; sometimes it is not.\\n\\\"Q. You find it-very pronounced now? A. I found it very pronounced as I stated there in my report.\\\"\\nAnd Dr. Allen said: \\\"Q. And in your opinion that will exist for how long-, Doctor? A. Well I don't believe anyone can say exactly how long' \\u2014 the probabilities are that it will continue for some length of time \\u2014an indefinite period.\\\"\\nIn Angnst plaintiffs motored to Los Angeles, driving to Needles, California, the -first day, and completing the trip the next. They spent ahont six weeks in California and returned to Prescott October 9th, driving to Blythe, California, the first day, and the third day to Prescott. Plaintiff Etta Clark saw Dr. Thompson, who had known her all her life and who was her doctor before she came to Arizona, just one time during her six weeks' visit in California.\\nPlaintiff Etta Clark was nursed and cared for by her husband, both before and after the accident. He testified that his time was worth one hundred dollars a month for about four months' service subsequent to her injury.\\nThere was no evidence offered as to the value of the services of physicians.\\nThe husband, L. A. Clark, was hut slightly injured. He was not prevented thereby from performing his usual work and received no professional services on account of his injuries.\\nThe only special damages proved were for the services of the husband in nursing his wife after the accident for a period of approximately four months at one hundred dollars a month. Making due allowance for this item as a legitimate charge, leaves $11,600 to compensate the plaintiffs for their injuries. The complaint does not apportion the damages claimed, nor does the verdict. It cannot be ascertained from these, or the evidence or the instructions, what amount of the verdict was intended to be awarded the husband or what part of the damages was intended to compensate the wife. The husband's injuries were very slight and ephemeral. He was entitled to some damages, hut only enough to compensate him, for his injuries. Five thousand eight hundred dollars or one-half the verdict after deducting the special damages, would he an outrageous amount for the injuries to the husband. He lost no time from.his usual work. He had no treatment from any doctor. There is nothing of record indicating that his injuries were permanent. What part of the lump sum the jury may have figured was to compensate the husband, and what part to compensate the wife, cannot be known. If they figured that the plaintiffs were entitled to the same damages because of the relation of husband and wife, and not on the basis of the injuries sustained, they clearly misconceived the legal effect of the evidence. The statement of counsel for plaintiffs in his brief explains the verdict in these words:\\n\\\"Possibly, if defendant had requested either an instruction or a special interrogatory- that the jury apportion the damages between the plaintiffs in the amount that they deemed just and reasonable, that they would probably have given more to Mrs. Clark than to him,- but in the absence of such a request, cmd in the face of the pleadings and' the proof, the presumption is that it is m equal amounts to both of the plaintiffs.\\\" (Italics ours.)\\nThis theory of accounting for so large a verdict is one explanation, and perhaps the only reasonable one that is possible. The injuries to the wife were quite severe, and we think it may fairly be inferred from the evidence that the traumatic neurosis with which she was affected was the result of the injuries and shock she received in the accident, and as a consequence thereof that the disease she had was aggravated ; but whether such deleterious effects are permanent or not was left, by the physicians who examined her under the order of the court, in doubt. They said, in effect, that they did not know how long her nervous condition would last. Neither was willing to state that her nervous condition was permanent. The implication from this testimony is that it would in time disappear. The medical and surgical treatment of the wife after the accident were very meager for one seriously and permanently injured. Also, her ability to travel long distances by automobile is very significant.\\nWe realize that a jury's verdict ought not to be vacated or the amount thereof reduced except for the most cogent reasons. The rule here and elsewhere is that the verdict will be left undisturbed if reasonably supported by the evidence, when the trial is free from error. There is no absolute fixed legal rule of compensation in actions of this kind, and as a reviewing court we feel we ought not to interfere with the verdict unless it clearly appears that the jury has mistakenly applied the wrong principles in estimating the damages, or was actuated by improper motives or bias indicating passion or prejudice. This is because in actions for personal injuries the law does not attempt to fix precise rules for the measure of the damages, but leaves their assessment to the good sense and unbiased judgment of the jury. We would not feel justified in disturbing- the verdict for mere excess; but where, because of the way the issues were made up.and the case was tried and submitted, it is reasonably certain that the excess was the result of a misconception by the jury of the principles of law governing in the estimate of damages, we think justice requires that we exercise our right to correct the error, so far as we can, by directing a remittitur of the excess. This doctrine is not new in this jurisdiction. In the very early case of Southern Pacific Co. v. Tomlinson, 4 Ariz. 126, 33 Pac. 710, the court ordered a remittitur because it appeared the jury had adopted a too liberal view of the damages, and the rule there announced has been followed since. Gila Valley etc. Ry. Co. v. Hall, 13 Ariz. 270, 112 Pac. 845 ; Verde etc. Ry. Co. v. Stevenson, 22 Ariz. 188, 196 Pac. 164. It might have been through a mis.conception of the legal effect of the evidence, or it might have been through sympathy, but it seems certain the jury was extremely liberal in assessing damages, especially so when it appears that one of the plaintiffs has shown himself entitled to little more than nominal damages.\\nAs to the punitive damages, we do not think them too large, nor do we think them unjustified by the facts. \\\"Punitive damages\\\" are not intended to remunerate the injured party for the damages he may have sustained. They are not to compensate; they are the penalty the law inflicts for gross, wanton, and culpable negligence, and are allowed as a warning or as an example to defendants and others. Because they are an example as to what the law will do for such conduct when it results in injury to the person or property of others, they are sometimes called exemplary damages. 8 R. C. L. 581, \\u00a7 129; 17 C. J. 714, \\u00a7 40.\\nThe evidence as to defendant's condition at the time is in dispute. He and several others testified that he was sober and had not indulged, while a number, among them his passengers at the time of the accident, testified that his breath smelled strongly of liquor and that he was drunk. The jury must have believed that he was intoxicated. The evidence tends to show he was driving at a reckless speed, with little control of his car. The traffic at the place and time was heavy, and for safety to himself and others demanded careful driving. It is made a criminal offense for a person to drive an automobile on the public highways of this state while in an intoxicated condition. The jury fixed the defendant's penalty pretty high, but we think the example and warning to drunken or intoxicated operators of automobiles just and wholesome, and that it should not he disturbed by us.\\nThe exception to the court's instruction is that it authorized the jury to assess future damages in the absence of any evidence to support it. In the first place, the instruction did not tell the jury that they could consider future pain and suffering or loss; but, if it had, we think it would not have been improper under the evidence. The injuries were not shown to be permanent. The evidence does show, however, that Etta Clark had not fully recovered from them and would not for some indefinite time. 17 C. 762, \\u00a794.\\nWe conclude that, if $1,000 actual damages be allowed to the husband and $6,000 to the wife on account of injuries sustained, they will be amply compensated.\\nThe judgment is that, if the plaintiffs within twenty days from the date hereof shall file a remittitur of $5,000, judgment will be entered against the defendant and his sureties on appeal for the remainder of the judgment appealed from, to wit, $10,000 with costs in the trial and this court; otherwise, let the judgment be reversed and the cause remanded for a new trial.\\nLOCKWOOD, C. J., and McALISTER, J., concur.\"}"
\ No newline at end of file
diff --git a/arizona/5023399.json b/arizona/5023399.json
new file mode 100644
index 0000000000000000000000000000000000000000..78a0dbe6062edfba06c555adb651bd5429172769
--- /dev/null
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+"{\"id\": \"5023399\", \"name\": \"WILLARD L. FOGAL, Appellant, v. STATE, Respondent\", \"name_abbreviation\": \"Fogal v. State\", \"decision_date\": \"1931-10-15\", \"docket_number\": \"Criminal No. 747\", \"first_page\": \"57\", \"last_page\": \"57\", \"citations\": \"39 Ariz. 57\", \"volume\": \"39\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T23:51:27.259882+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WILLARD L. FOGAL, Appellant, v. STATE, Respondent.\", \"head_matter\": \"[Criminal No. 747.\\nFiled October 15, 1931.]\\n[3 Pac. (2d) 1053.]\\nWILLARD L. FOGAL, Appellant, v. STATE, Respondent.\\nMr. M. C. Burk, for Appellant.\\nThe Attorney General, for the State.\", \"word_count\": \"78\", \"char_count\": \"448\", \"text\": \"PEE CTJEIAM.\\nThis and case No. 746, Fogal v. State, ante, p. 55, 3 Pac. (2d) 1053, just decided, were both service station holdups, occurring in Phoenix only two days apart. What we have said in case No. 746 applies equally as well to this case. Judgment affirmed.\"}"
\ No newline at end of file
diff --git a/arizona/5024130.json b/arizona/5024130.json
new file mode 100644
index 0000000000000000000000000000000000000000..440f6d579d744d5b9021f1e90e025da5df5dd834
--- /dev/null
+++ b/arizona/5024130.json
@@ -0,0 +1 @@
+"{\"id\": \"5024130\", \"name\": \"L. B. FLOYD and MAELDA J. FLOYD, Appellants, v. GEORGE D. HORNBECK and MARY E. HORNBECK, Appellees\", \"name_abbreviation\": \"Floyd v. Hornbeck\", \"decision_date\": \"1931-11-09\", \"docket_number\": \"Civil No. 3049\", \"first_page\": \"178\", \"last_page\": \"182\", \"citations\": \"39 Ariz. 178\", \"volume\": \"39\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T23:51:27.259882+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"L. B. FLOYD and MAELDA J. FLOYD, Appellants, v. GEORGE D. HORNBECK and MARY E. HORNBECK, Appellees.\", \"head_matter\": \"[Civil No. 3049.\\nFiled November 9, 1931.]\\n[4 Pac. (2d) 908.]\\nL. B. FLOYD and MAELDA J. FLOYD, Appellants, v. GEORGE D. HORNBECK and MARY E. HORNBECK, Appellees.\\nMr. Y. L. Hash, for Appellants.\\nMr. John C. Lee and Mr. Lemuel P. Mathews, for Appellees.\", \"word_count\": \"1261\", \"char_count\": \"7405\", \"text\": \"LOCKWOOD, J.\\nGeorge Hornbeck and Mary E. Hornbeck, his wife, hereinafter called plaintiffs, brought suit in the superior court of Maricopa county against L. B. Floyd and Maelda Floyd, his wife, hereinafter called defendants, setting up in substance that they were the owners in fee simple of certain real estate situated in Maricopa county; that they had entered into a written agreement with defendants for the exchange of said real estate for lands alleged by defendants to be owned by the latter; that the exchange was conditioned upon certain representations made by defendants as to their land; that the plaintiffs discovered such lands to be not as represented, and therefore refused to execute the contract, but that defendants had recorded the contract of exchange so that it created a cloud on- the title of plaintiffs. The prayer for relief was that defendants give up said contract to be canceled, and that it be satisfied of record.\\nDefendants demurred generally to the complaint, and answered admitting the execution of the contract, but claiming that the property owned by them was exactly as represented, and that, by virtue of the agreement, defendants were the owners of the land described in the complaint and entitled to the possession thereof, and praying that plaintiffs take nothing by reason of their complaint. They further filed a cross-complaint setting up the contract, alleging that they had offered to perform their obligations thereunder, and asking for a judgment decreeing specific performance thereof. Plaintiffs demurred to the answer and to the cross-complaint, and replied, alleging particularly that defendants could not perform their agreement on account of failure of title. The demurrer to the cross-complaint was sustained, but'the demurrers to the complaint and answer were overruled, and the case was tried before the court. Cer tain findings of fact were made, and upon them judgment was rendered in favor of plaintiffs, quieting title to the premises as described, and from said judgment and the order denying the motion for a new trial this appeal has been taken.\\nThere are four assignments of error which we consider in their order. The first is that the court erred in overruling the demurrer to plaintiffs' complaint. It is defendants' contention that the complaint does not set up sufficiently that plaintiffs were the owners of the property and entitled to the possession thereof. The allegation is that plaintiffs are the \\\"owners in fee simple,\\\" which we think sufficient to sustain an action to quiet title under our statute, since neither possession nor right to possession is required, as under the old rule. Section 4356, Rev. Code 1928; Chuk v. Katich, 27 Ariz. 182, 231 Pac. 923; Bishop v. Perrin, 4 Ariz. 190, 35 Pac. 1059.\\nThe second assignment is that the court erred in sustaining plaintiffs' demurrer to defendants ' cross-complaint. The minute entries do not show the ground upon which it was sustained, but it is apparently agreed by the parties that it was because the trial court held a cross-complaint for specific performance of a contract is not proper in an action to quiet title as against the same contract. If such be the ground upon which the demurrer to the cross-complaint was sustained, we are of the opinion the trial court erred therein. It is very generally held that in an action of ejectment, where the defendant relies on a contract for the conveyance of the land, he may set up such a contract in a cross-complaint, and sue for specific performance. Travelers' Ins. Co. v. Walker, 77 Minn. 438, 80 N. W. 618; Dale v. Hunneman, 12 Neb. 221, 10 N. W. 711. And we see no reason why, under our very liberal statutes regarding pleadings, 'the same rule should not prevail when the complaint is to quiet the title or to remove a cloud thereon.\\nThe third assignment is that the court could not grant any relief under the prayer of plaintiffs' complaint. It appears from the minute entries that the complaint was amended after the close of 'the evidence. In the absence of a showing in the record as to the nature of the amendment, and following our rule that every intendment is in support of the judgment, we must presume' such amendment made 'the pleadings conform with the proof offered, and the relief granted. Kinney v. Neis, 14 Ariz. 318, 127 Pac. 719; Martin v. Bankers' Trust Co., 18 Ariz. 55, Ann. Cas. 1918E 1240, 156 Pac. 87.\\nThe fourth assignment is that the findings of fact in the decree precluded the court from holding as a matter of law that the'title was an absolute one in plaintiffs as against defendants. Since the reporter's transcript is not before us, we must assume the findings are supported by the evidence. Scott v. Hurley, 6 Ariz. 85, 53 Pac. 578; Wooster v. Scorse, 16 Ariz. 11, 140 Pac. 819; Frame v. Mahoney, 21 Ariz. 282, 187 Pac. 584. These findings were in substance as follows :\\nPlaintiffs and defendants entered into an agreement for the exchange of the' lands referred to in the pleadings in this action on May 1,1929, but the former refused to perform their part of the agreement. Thereafter defendants herein sued plaintiffs for specific performance, and at the trial of such suit on November 2, 1929, it appeared by defendants' own testimony that they were not then vested with title to the land they had agreed to convey, but that it was in one C. W. Hubbard and wife, and for that reason they were not in a position to perform their part of the agreement. On November 5, 1929, this suit was filed by plaintiffs, seeking to remove 'the cloud on the title, and thereafter and not until December 16, 1929, did defendants secure title to the premises which they had agreed to convey, and for the first time were able to perform their part of the contract. The trial court further found they had delayed an unreasonable time in securing such title, and that plaintiffs had repudiated the contract before it was so secured by defendants.\\nWe are of the opinion that on 'these' findings plaintiffs were entitled as a matter of law to a judgment quieting their title in the premises in question. Because of the findings, notwithstanding the error of the trial court in sustaining the demurrer to def end-ants ' cross-complaint, we think the case should not be reversed. The issue attempted to be' raised by the cross-complaint and necessary to sustain it was fully presented to the trial court on the answer, and determined against defendants. The facts essential to such determination are matters of record, and could not be changed upon a new trial. Such being the situation, it would be a mere waste of time and money to reverse the case with directions to overrule the demurrer to the cross-complaint and retry the action when the ultimate judgment could be none other than the one which was actually rendered. We' think this a proper case for the application of section 22 of article 6 of the Constitution. Since upon the whole case it appears that substantial justice has been done, we decline to reverse it because of the technical error in the proceedings above referred to.\\nJudgment affirmed.\\nMoALISTER, C. J., and ROSS, J., concur.\"}"
\ No newline at end of file
diff --git a/arizona/5042575.json b/arizona/5042575.json
new file mode 100644
index 0000000000000000000000000000000000000000..3485ebf7f500662251b9e80e1ba79c9472572869
--- /dev/null
+++ b/arizona/5042575.json
@@ -0,0 +1 @@
+"{\"id\": \"5042575\", \"name\": \"SIX COMPANIES, INC., Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, R. B. SIMS, WILLIAM E. HUNTER and CHARLES HARTMAN, as Members of The Industrial Commission of Arizona, and MIKE RYAN, Respondents\", \"name_abbreviation\": \"Six Companies, Inc. v. Industrial Commission\", \"decision_date\": \"1933-01-23\", \"docket_number\": \"Civil No. 3257\", \"first_page\": \"373\", \"last_page\": \"376\", \"citations\": \"41 Ariz. 373\", \"volume\": \"41\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T21:51:50.095391+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SIX COMPANIES, INC., Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, R. B. SIMS, WILLIAM E. HUNTER and CHARLES HARTMAN, as Members of The Industrial Commission of Arizona, and MIKE RYAN, Respondents.\", \"head_matter\": \"[Civil No. 3257.\\nFiled January 23, 1933.]\\n[18 Pac. (2d) 915.]\\nSIX COMPANIES, INC., Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, R. B. SIMS, WILLIAM E. HUNTER and CHARLES HARTMAN, as Members of The Industrial Commission of Arizona, and MIKE RYAN, Respondents.\\nMessrs. Thelin & Marrin, Messrs. Moore & Shimmel and Mr. A. R. Lynch, for Petitioner.\\nMr. Burt H. Clingan (Mr. Emil Wachtel, of Counsel), for Respondent Commission.\", \"word_count\": \"852\", \"char_count\": \"5074\", \"text\": \"ROSS, C. J.\\nWe think the rule announced in Six Companies, Inc., v. Industrial Commission et al., ante, p. 366, 18 Pac. (2d) 913, is controlling.\\nIn the present case the employee, Mike Ryan, on January 30, 1932, while working for the Six Companies, Inc., sustained fractures of the fibula of both legs. He was cared for in the company's hospital at Boulder City, Nevada, by the company's doctors until about April 12th, when he was discharged and returned to work for the company at his former wage of $8 per day, or $240 per month. The company's doctors ' reports; on the date of his resumption of work were that he \\\"still has some weakness in left foot\\\" but no permanent disability.\\nUpon the unverified reports of the company's doctors the commission awarded the employee temporary disability compensation in the sum of $374, which was paid. The commission further found that the employee's injuries also caused a permanent partial disability entitling him to compensation in the sum of $120 monthly for two and one-half months. Upon a rehearing the commission affirmed this award and the company brought the case 'to this court for review. At the rehearing, the only additional evidence produced was the unverified reports of Drs. A. M. Tuthill and A. G. Kingsley. These reports are\\u00bb as follows:\\nDr. Tuthill (June 6th):\\n\\\"Examination of Mr. Mike Ryan, an employee of Six Companies, Inc., who sustained fractures of both fibula January 30, '32, shows in the right leg double fractures of the right fibula. Both these fractures have united in good position.\\n\\\"The left leg shows a single fracture of the left fibula; also united in good position.\\n\\\"In my opinion there will be no permanent disability on account of any of these fractures.\\\"\\nDr. Kingsley (June 6th):\\n\\\"Fracture of lower right leg in midportion four years ago. . . . Second finger of the right hand amputated in 1916. No sickness or rheumatism. . . .\\n\\\"Present Complaint:\\n\\\"States legs gave him no trouble while he was doing light work, though not as strong as formerly.\\n\\\"Right Leg:\\n\\\"Shows evidence of old fracture in midportion of tibia and fibula which has firmly united, but not\\\" in good position. There is also a simple fracture in the lower third of fibula, occurring a't the time of recent injury (Jan. 30, '32), which is now united in good position with no excess bone callus. There is some interference with the weight hearing axis in this foot, hut probably from previous accident. That in the fibula is not in any way contributory.\\n\\\"Left Leg:\\n\\\"Shows evidence of fracture in lower third of fibula with somewhat excess bone callus. Union seems to be firm, but there is some interference with the weight bearing axis of the foot.\\n\\\"X-Bay:\\n\\\"Shows the fractures as before noted \\u2014 that in the right fibula in perfect position with good union. Fracture in left fibula shows evidence of comminution with fair union, but with outward displacement of upper fragment.\\n\\\"Opinion:\\n\\\"The fracture of the right fibula is certainly not producing any disability. That in the left is probably producing some discomfort and if contributing to the interference of the weight bearing axis, probably is productive of a small amount of disability. ' '\\nAs we read these reports, the employee sustained no permanent disability whatever on January 30, 1932. Dr. Tuthill states so unequivocally, and Dr. Kingsley is quite as positive so far as the right fibula is concerned. He says: ' ' The left is probably producing some discomfort . . . probably is productive of a small amount of disability.\\\" He speaks of a present disability, not permanent or future disability. Dr. Kingsley is the regular physician for the Industrial Commission and doubtless understands the meaning of the terms used to describe \\\"temporary\\\" and \\\"permanent\\\" disability and knows the difference between these terms.\\nNotwithstanding the absence of any evidence showing the injuries sustained by the employee on January 30th to be permanent, the Commission proceeded under (o) and (u) of subdivision (C) of section 1438, Revised Code of 1928, to assess 5 per cent, of the complete loss of the use of his leg or legs as compensation for the partial loss of the use of such member or members. Before the Commission has the power' and right to make an award under (o) and (u), supra, it is essential that it be shown by competent evidence: (1) That the employee has suffered a partial loss of the use of his leg or legs, and (2) the percentage or proportion such loss bears to the complete loss of the use of such member or members. There is no evidence of either of these.\\nThe award is set aside.\\nLOCKWOOD and McALISTER, JJ., concur.\"}"
\ No newline at end of file
diff --git a/arizona/5100703.json b/arizona/5100703.json
new file mode 100644
index 0000000000000000000000000000000000000000..f7e79a56f6c4ce4a6f9e370473b664e2a689939a
--- /dev/null
+++ b/arizona/5100703.json
@@ -0,0 +1 @@
+"{\"id\": \"5100703\", \"name\": \"WOOD'S PHARMACY, INC., a Corporation, C. M. WOOD, MRS. R. T. FRANKLIN, D. S. DUNCAN, JOHN DOE, RICHARD ROE and MARY MOE, Appellants, v. J. C. KENTON, Appellee\", \"name_abbreviation\": \"Wood's Pharmacy, Inc. v. Kenton\", \"decision_date\": \"1937-06-07\", \"docket_number\": \"Civil No. 3818\", \"first_page\": \"53\", \"last_page\": \"58\", \"citations\": \"50 Ariz. 53\", \"volume\": \"50\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T17:27:26.095956+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WOOD\\u2019S PHARMACY, INC., a Corporation, C. M. WOOD, MRS. R. T. FRANKLIN, D. S. DUNCAN, JOHN DOE, RICHARD ROE and MARY MOE, Appellants, v. J. C. KENTON, Appellee.\", \"head_matter\": \"[Civil No. 3818.\\nFiled June 7, 1937.]\\n[68 Pac. (2d) 705.]\\nWOOD\\u2019S PHARMACY, INC., a Corporation, C. M. WOOD, MRS. R. T. FRANKLIN, D. S. DUNCAN, JOHN DOE, RICHARD ROE and MARY MOE, Appellants, v. J. C. KENTON, Appellee.\\nMr. George D. Locke and Mr. J. Bolivar Sumter, for Appellants.\\nMessrs. Lynch and Herring, for Appellee.\", \"word_count\": \"1574\", \"char_count\": \"8849\", \"text\": \"LOCKWOOD, J.\\nThis is an appeal from an order of the superior court of Maricopa county entered nunc pro tunc July 20, 1936, for the purpose of correcting a minute entry of March 31st. The record shows that J. C. Kenton, hereinafter called plaintiff, filed a certain action in the superior court of Maricopa county against Wood's Pharmacy, Inc., a corporation, and others, hereinafter called defendants. After various preliminary pleas were disposed of, a hearing was had on July 8, 1935, on a motion to show cause why an audit should not be made. After considerable evidence was introduced on this motion, the court took the matter under advisement, and no further proceedings were had until March 31, 1936, when the following order was made:\\n\\\"Comes now the plaintiff appearing by counsel, Lynch & Herring by A. R. Lynch. Thereupon, it is ordered this cause is dismissed with prejudice on motion of counsel for the plaintiff.\\\"\\nThereafter, and on April 29th the plaintiff filed the following motion:\\n\\\"That an order be issued amending according to truth and justice that order entered on the records of the clerk of the superior court on March 31, 1936, in the above entitled and numbered cause which now reads, 'dismissed with prejudice on motion of the plaintiff,' and that the said order be amended and changed nunc pro tunc to read, 'dismissed without prejudice on motion of the plaintiff. '\\n\\\"In support of this motion your petitioner states, that on the 31st day of March 1936, A. R. Lynch, one of the attorneys for the plaintiff in the above entitled and numbered cause appeared before the court and under section 3813, R. O. A. 1928, requested the court to enter an order dismissing the above entitled action. That through inadvertence or mistake the clerk of the said court caused the order to be entered as it now stands in the records of the clerk of the superior court as above set out. That the motion to dismiss is made under section 3813, R. C. A. 1928, and was not intended at that time or at any time to be a dismissal of the action prejudicing the plaintiff's right to file over or to begin an action seeking relief ag'ainst the defendants at a later date.\\\"\\nThe court, on May 11th, took evidence on the motion to correct as above set forth, and on July 20th entered the following order:\\n\\\"It is hereby ordered granting motion of plaintiff to correct the record so that the minute entry of March 31, 1936 shall read, 'Order this cause dismissed without prejudice, on motion of plaintiff,' instead of 'with prejudice.' \\\"\\nIt is from this last order that the appeal is taken.\\nThe question before us is the nature of a nunc pro tunc order, and whether the record shows that the order of July 20th was correct. We have had the question of nunc pro tunc orders before us in several cases, the first case being Southern Pac. Company v. Pender, 14 Ariz. 573, 134 Pac. 289. Therein we said:\\n\\\"The office of a nunc pro tunc entry is not to make an order now for then, but to enter now for then an order previously made. Klein v. Southern Pac. Co., (C. C.) 140 Fed. 213; Lombard v. Wade, 37 Or. 426, 61 Pac. 856.\\\"\\nThe matter again came up in Rae v. Brunswick Tire Corp., 45 Ariz. 135, 40 Pac. (2d) 976, 979, under circumstances very similar to those involved in the present case, the particular issue involved therein also being the correction of an order of dismissal. In that case we said:\\n\\\"The purpose of such an order is to make the record speak the truth and the power to do so is inherent in the court, but in the exercise thereof the court may not do more than make its records correspond to the actual facts; it cannot under the guise of amending a minute entry correct any judicial error it may have made, or cause an order or judgment that was never in fact made to be placed of record. In other words, the office of a nunc pro tunc order is to record now for then what actually did occur.\\\"\\nAnd we held that the record in that case showed 'sufficiently that the nunc pro tunc order was properly made. The matter again was under consideration in American Surety Co. of New York v. Mosher, 48 Ariz. 552, 64 Pac. (2d) 1025, 1030, and we said:\\n\\\"The object of an order nunc pro tunc is not the rendering of a new judgment and the ascertainment and determination of new rights, but is only the placing in proper form on the record the judgment that had been previously actually rendered, in order that the record may speak the truth so as to make it show what the judicial action really was. Its office is not to supply omitted action by the court, but to furnish the record of an action really had, where its recording was omitted through inadvertence or mistake. ' '\\nIn that case the question was raised as to whether a nunc pro tunc order could be based on the personal recollection of the court, or must be founded upon some written memorandum in the case and- among the files of the court, and we held that either was sufficient.\\nThe question then is whether there is sufficient evidence in the record to show that the court, as a matter of fact, on March 31, 1936, did order the action \\\"dismissed without prejudice,\\\" whereas the clerk inadvertently, in entering the order on the minutes, made it to read, \\\"dismissed with prejudice.\\\" We think the reporter's transcript of the hearing on the motion is decisive on this point. Mr. A. R. Lynch, of counsel for plaintiff, the attorney who requested the dismissal, testified as follows, when asked as to what the original order made by the court actually was:\\n\\\"I wanted the order to read what the order Avas Avhen it was made. The words 'with prejudice' or 'without prejudice' were not mentioned by the court, Avere not mentioned by me, and were not mentioned by the clerk, and where the clerk got them, I don't know. ' '\\nThe trial judge said:\\n\\\"As far as the court is concerned, I am sure that T neither directed an order with or without prejudice. I most certainly would not have directed it without prejudice, or with prejudice, I should say, unless I thoroughly understood that to be the desire, because I realize the significance of that.\\\"\\nThe clerk who actually made the order had no independent recollection as to the language used. We think the statement of the trial judge to the effect that he was sure he did not direct the order either \\\"with or without prejudice,\\\" when coupled Avith the statement of the counsel Avho asked the order that the words \\\"with prejudice\\\" or \\\"without prejudice\\\" were not mentioned by the court, the clerk, or himself, is conclusive to the effect that the order actually given on March 11th was merely that the case should be dismissed, without the addition of the words \\\"Avith prejudice\\\" or \\\"without prejudice.\\\" There is nothing in the record to contradict or even question these statements. It is obvious, therefore, that the order of July 20th directing the correction of the order of March 31st by striking therefrom the words \\\"with prejudice\\\" and inserting the words \\\"without prejudice\\\" was partially correct and partially incorrect. The trial court very properly struck the words \\\"Avith prejudice,\\\" but, on his own statement, had no right to include in the nunc pro tunc order the words \\\"without prejudice.\\\" The order should have read, in substance, \\\"the minute entry of March 31, 1936, is corrected to read, 'order this case dismissed on motion of the plaintiff.' \\\"\\nThe transcript also shows that after Mr. Lynch and the trial judge had made their statements in regard to what actually occurred, Mr. Herring, of counsel for plaintiff, evidently realized that a nunc pro order of the nature he desired could not properly be made, and therefore moved to amend his petition so that instead of being a request for a nunc pro tunc order, which, under the evidence, could not be made as he desired, it was one that an amendment of the order of March 31st should be made, dismissing the case \\\"without prejudice.\\\"\\nSince the six-month period allowed for the amendment of an order made inadvertently had not yet expired, it would have been quite proper for the court to vacate the order of March 31st, and enter an amended order as of July 20th, dismissing the action without prejudice. Section 3859, Rev. Code 1928. But it could not enter a nunc pro tunc order showing that on March 31st an order was made which, according to all the evidence, was not made.\\nThe order appealed from is set aside, and the case remanded with instructions to the trial court to proceed as law and justice may require.\\nMcALISTER, C. J., and ROSS, J., concur.\"}"
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diff --git a/arizona/5122425.json b/arizona/5122425.json
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+"{\"id\": \"5122425\", \"name\": \"SOUTHERN PACIFIC COMPANY, a Corporation, Appellant, v. WILLIAM B. BUNTIN, Appellee\", \"name_abbreviation\": \"Southern Pacific Co. v. Buntin\", \"decision_date\": \"1939-10-09\", \"docket_number\": \"Civil No. 4052\", \"first_page\": \"180\", \"last_page\": \"188\", \"citations\": \"54 Ariz. 180\", \"volume\": \"54\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:08:57.831605+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SOUTHERN PACIFIC COMPANY, a Corporation, Appellant, v. WILLIAM B. BUNTIN, Appellee.\", \"head_matter\": \"[Civil No. 4052.\\nFiled October 9, 1939.]\\n[94 Pac. (2d) 639.]\\nSOUTHERN PACIFIC COMPANY, a Corporation, Appellant, v. WILLIAM B. BUNTIN, Appellee.\\nMessrs. Knapp, Boyle & Thompson, for Appellant.\\nMessrs. Krucker & Fowler, for Appellee.\", \"word_count\": \"2443\", \"char_count\": \"13677\", \"text\": \"LOCKWOOD, J.\\n\\u2014 William B. Buntin, hereinafter called plaintiff, brought suit against the Southern Pacific Company, hereinafter called defendant, to recover damages for personal injuries alleged by plaintiff to have been sustained as the result of negligence of defendant. The case was tried to a jury which rendered a verdict in favor of plaintiff, and thereafter this appeal was taken.\\nThe second amended complaint, on which the case was tried, may be summarized as follows: The plaintiff was a traveler on a train operated by defendant, his destination being Tucson, Arizona. The train arrived in Tucson about 3:30 A. M. December 19th, and the defendant, instead of discharging him at the usual place where passengers alighted, discharged and set him down from the train at an undetermined distance west of the station platform, at a place which was not suitable, proper nor safe. No lights were maintained there, and plaintiff was not notified, when he was so discharged, of the location of the station. After being discharged, plaintiff began wandering around trying to find the station, and continued to search for it for some time, and while he was so engaged, and without any warning signal being given by defendant, a switch engine operated by it struck plaintiff, by reason of which he was severely injured. Plaintiff further sets up that he\\n\\\"was suffering from permanently impaired vision which amounted to almost total blindness in both eyes; that he was of the age of sixty-five and in a precarious and feeble state of health, all of which things the defendant, its agents and employees, knew when they discharged him as a passenger.\\\"\\nThe answer of the defendant is a general denial and an allegation that the plaintiff was guilty of contributory negligence.\\nIf it is necessary in the further course of the opinion, we shall elaborate upon the pleadings, but this states substantially the issues at the time of the trial.\\nThe evidence, considered in the strongest manner in favor of plaintiff, shows the following facts: At the time of the accident he was a retired physician, about sixty-five years of age, in somewhat infirm health. He was suffering from a progressive atrophy of the optic nerve and his sight was extremely poor, though he was able to distinguish light from darkness, and under a proper light could determine the outline of most near objects, but he was totally incapable of moving safely about in semi-darkness without assistance. The employees of defendant, who were on the train with plaintiff, noticed when he was about to get off the train that he seemed like a man who had just awakened from sleep, but none of them had any knowledge of his deficiency of vision, nor does the evidence show there was anything about his conduct which would lead them to believe that there was anything wrong with his eyesight, or that he was not able to care for himself as well as the ordinary man of that age. When the train reached Tucson, plaintiff was asleep. No distinct announcement was made to the passengers in general, when the train stopped, that it had reached that city, and after a ten minutes wait it was about to resume progress. Just before it started the porter's attention was called to plaintiff by a passenger, and he was awakened. Before he could alight, the train started, but was stopped within less than two car lengths, and plaintiff was assisted to alight by the porter, a brakeman and the conductor. The train then proceeded on its way. Up to the time the train finally left, plaintiff had in no manner been injured. The place where he was put off from the train was less than two hundred feet from the place where it had stopped originally, the exact distance being nowhere shown by the testimony. At this place there was a hard gravel surface, which was commonly used by passers-by as a walk, lying between passenger tracks numbers 1 and 2, the latter being the closest to the station. In order to reach the main door of the station, it was necessary to step across track 2 and walk towards the east between four hundred fifty and five hundred feet along a regular walk, part graveled and part asphalt. For a time not less than ten nor more than thirty minutes after the train left, the space in front of and near the station was brilliantly lighted by flood lights, so that a man with normal eyesight would have no difficulty in seeing where the station was, and proceeding there without any danger to himself. At the end of this time, the flood lights in front of the station were turned off. The plaintiff, due to the condition of his eyesight, was not sure in which direction the station was, although he said that he did not see some high-up lights somewhere south of the railroad. He walked up and down between the tracks, occasionally sitting down on his suitcase to rest. Along about five or five-thirty in the morning a switch engine operated by defendant was working on the tracks near the station. One of the brakemen noticed plaintiff in the space between tracks 1 and 2, and shortly thereafter the switch engine, which was coming east on track 2, struck plaintiff and knocked him to the ground, as a result of which he received the injuries complained of.\\nThere are three assignments of error, but we think it necessary to consider only subdivision (b) of the second assignment, which is that the court erred in giving the following instruction to the jury:\\n\\\"If you believe from the preponderance of the evidence in this case that Doctor Buntin was suffering from some physical disability, such as blindness, feebleness, or any other condition, and if you further believe that the employees of the railroad company at the time that they discharged him as a passenger at Tucson had known, or by the use of ordinary care should have known, of such disability, then I charge you that the railroad company's employees were under the duty to assist Doctor Buntin and warn him when he was discharged, and if such failure to assist and to warn him was the direct cause of his injuries, then the railroad company may be held liable.\\\" (Italics ours.)\\nIt is urged by defendant that this instruction is erroneous, in that there was no evidence whatever that the defendant or any of its employees knew of the plaintiff's bad eyesight, and further that it imposed upon defendant and its employees the duty of ascertaining whether plaintiff suffered from any disability, and the nature and extent' of the disability.\\nWe have examined all of the authorities bearing on this question cited by plaintiff and defendant, and in addition thereto all that we could discover bearing in any way upon the question of the duty of a common carrier to passengers who are abnormal by reason of any physical or mental disability. We find that there is a practical unanimity of opinion as to what this duty is. We think an excellent definition of negligence is the following:\\n\\\" . . . negligence is the omission to do something which a reasonably prudent man, guided by those considerations which usually regulate the conduct of human affairs, would do; or is the doing of something which a prudent and reasonable man, guided by those same considerations would not do; it is not intrinsic or absolute, but is always relative to the surrounding circumstances of time, place and persons.\\\"\\nAtchison, Topeka & Santa Fe Ry. Co. v. France, (Ariz.) 94 Pac. (2d) 434, just decided but not yet reported [in State report].\\nThe question then is as to how the duty imposed upon a defendant may be modified by the surrounding circumstances of time, place and persons. So far as the manner in which the duty of a common carrier to passengers is modified by the physical or mental condition of the passengers is concerned, there are three principles pertinent to the present case.\\nIf the carrier is guilty of an act of negligence which injures a passenger, and such injury is aggravated by said abnormal physical or mental condition, the carrier is responsible to the full extent of the injury, notwithstanding it had no knowledge of the abnormal condition. St. Louis S. W. Ry. Co. of Texas v. Ferguson, 26 Tex. Civ. App. 460, 64 S. W. 797; East Line & R. R. Ry. Co. v. Rushing, 69 Tex. 306, 6 S. W. 834; Brown v. Chicago, Milwaukee & St. P. Ry. Co., 54 Wis. 342, 11 N. W. 356, 911, 41 Am. Rep. 41; Dickinson v. Bryant, 69 Okl. 297, 172 Pac. 432, L. R. A. 1918E 978; Cassels v. City of Seattle, 195 Wash. 433, 81 Pac. (2d) 275; Jordan v. City of Seattle, 30 Wash. 298, 70 Pac. 743.\\nIf the carrier knows the passenger to be abnormal, either physically or mentally, it is then bound to give such higher degree of care for the safety of that person as his infirmity requires, and a failure to do so is negligence, even if the conduct of the carrier would not be negligence towards the normal person. Morarity v. Durham Traction Co., 154 N. C. 586, 70 S. E. 938; Junkermcmn v. Tilyou Realty Co., 213 N. Y. 404, 108 N. E. 190, L. R. A. 1915F 700; Nelson v. Great Northern Ry. Co., 52 Minn. 276, 53 N. W. 1129; Benson v. Northland Transp. Co., 200 Minn. 445, 274 N. W. 532; Mitchell v. Des Moines City Ry. Co., 161 Iowa 100, 141 N. W. 43; Bennett v. Seattle Elec. Co., 56 Wash. 407, 105 Pac. 825.\\nBut if the carrier does not know of the abnormality, it owes no more care to the abnormal than it would to a normal passenger, and it is under no duty of making an investigation to determine the condition of the passenger. Welsh v. Spokane & I. E. R. Co., 91 Wash. 260, 157 Pac. 679, L. R. A. 1916F 484; Scott v. Union Pac. R. Co., 99 Neb. 97, 155 N. W. 217; Cent. of Georgia Ry. Co. v. Carlisle, 2 Ala. App. 514, 56 So. 737; Sullivan v. Seattle Elec. Co., 51 Wash. 71, 97 Pac. 1109, 130 Am. St. Rep. 1082; Pullman Palace-Car Co. v. Barker, 4 Colo. 344, 34 Am. Rep. 89, 22 Pac. St. Rep. 344. The leading case on this last point is Illinois Cent. R. Co. v. Cruse, 123 Ky. 463, 96 S. W. 821, 823, 8 L. R. A. (N. S.) 299, 13 Ann. Cas. 593. Therein the court said:\\n\\\" . . . We think, however, if a passenger is in need of special assistance, either from sickness or other misfortune, and this fact is known to the employ\\u00e9s of the carrier, it is their duty to render it; but they are not required to anticipate such wants or needs. The trial court therefore erred by inserting into the instructions given to the jury the idea that it was incumbent upon the employ\\u00e9s of the appellant to observe the condition of the passengers in order to see whether or not they needed assistance. This thought is embraced in the use of the expression 'or was apparent' in the instructions after stating the duty of the em ploy\\u00e9s of appellant if appellee's feebleness was known to them. As said before, if the employes of the railroad knew that the appellee was in feeble health, and needed assistance, it was their duty to render her such reasonable help as lay in their power in order that she might alight from the car in safety. Bnt they owed her no duty of observation, to ascertain her condition, and, therefore, the expression 'or was apparent' should have been omitted. Nor was it the duty of the appellant to have its platform or station so lighted that the plaintiff might clearly see the steps and platform. All that was required of it was to have its steps and platform so reasonably lighted that the ordinary traveler could see sufficiently to alight in safety. The eyes of appellee might have been dim or weak from age or infirmity, and, although the steps and platform were sufficiently lighted to enable the average passenger to alight in safety, they may not have been so lighted as to enable her so to do. ' '\\nThis case, so far as we know, has never been seriously criticized, nor the doctrine laid down therein repudiated, and it has been quoted approvingly in many cases besides those above cited. Gulf, C. & S. F. Ry. Co. v. Garner, 52 Tex. Civ. App. 387, 115 S. W. 273; Louisville & N. R. Co. v. Bowman, 208 Ky. 39, 270 S. W. 471; Louisville & N. R. Co. v. Dyer, 152 Ky. 264, 153 S. W. 194, 48 L. R. A. (N. S.) 816; Richardson v. Augusta & A. Ry. Co., 79 S. C. 535, 61 S. E. 83.\\nThere is not a scintilla of evidence that the defendant ever knew that there was the slightest degree of impediment in the eyesight of the plaintiff, and all of the evidence is conclusive to the effect that if he had been of normal eyesight the place where he was put off from the train was reasonably safe for him, and that he could easily have proceeded to the station which, at the time he left the train, was brilliantly lighted so that any normal person could, and would, have seen where it was and how to reach there safely. It is true that the defendant's employees knew that plaintiff was an elderly man, and that when he left the train he was not fully awake, but these matters in no way contributed to his injuries. If that had been all that was the matter with him, he could, should, and doubtless would, easily have reached the station without injury. Certainly, he would not have been in the position in which he was when he was injured by the switch engine.\\nUnder all the circumstances of the case, it was prejudicial error to give the instruction complained of, as it incorrectly stated the law on a vital is&ue. We need not consider the other assignments of error.\\nThe judgment of the superior court is reversed, and the case remanded for a new trial in accordance with the principles laid down herein.\\nROSS, C. J., and MoALISTER, J., concur.\"}"
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diff --git a/arizona/5131013.json b/arizona/5131013.json
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+"{\"id\": \"5131013\", \"name\": \"SIMS PRINTING COMPANY, a Corporation, Appellant, v. JAMES H. KERBY and MARYLAND CASUALTY COMPANY, a Corporate Surety Company, Appellees\", \"name_abbreviation\": \"Sims Printing Co. v. Kerby\", \"decision_date\": \"1940-10-07\", \"docket_number\": \"Civil No. 4245\", \"first_page\": \"130\", \"last_page\": \"138\", \"citations\": \"56 Ariz. 130\", \"volume\": \"56\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:28:09.923678+00:00\", \"provenance\": \"CAP\", \"judges\": \"ROSS, C. J., and McALISTEB, J., concur.\", \"parties\": \"SIMS PRINTING COMPANY, a Corporation, Appellant, v. JAMES H. KERBY and MARYLAND CASUALTY COMPANY, a Corporate Surety Company, Appellees.\", \"head_matter\": \"[Civil No. 4245.\\nFiled October 7, 1940.]\\n[106 Pac. (2d) 197.]\\nSIMS PRINTING COMPANY, a Corporation, Appellant, v. JAMES H. KERBY and MARYLAND CASUALTY COMPANY, a Corporate Surety Company, Appellees.\\nMr. P. H. Brooks, for Appellant.\\nMr. E. G. Frazier and Mr. M. C. Burk, for Defendant James H. Kerby.\\nMessrs. Stahl & Murphy, for Defendant Maryland Casualty Company.\", \"word_count\": \"2140\", \"char_count\": \"12149\", \"text\": \"LOCKWOOD, J.\\nSims Printing Company, a corporation, hereinafter called plaintiff, brought suit against James H. Kerby, hereinafter called defendant, and Maryland Casualty Company, a corporate surety company, hereinafter called surety, to recover the sum of $1,846.20, being the amount expended by plaintiff in connection with a certain contract entered into by it with defendant in his official capacity as Secretary of State of the state of Arizona. Defendant and the surety demurred to the complaint and the demurrer being sustained, plaintiff elected to stand upon its complaint, whereupon judgment was rendered in favor of defendant and the surety, and this appeal is before us.\\nThis action arose out of the situation set forth in the case of Sims Printing Co. v. Frohmiller, 54 Ariz. 64, 92 Pac. (2d) 334. We take judicial notice of all other proceedings in this court and the record therein. Stewart v. Phoenix Nat. Bank, 49 Ariz. 34, 64 Pac. (2d) 101; Engle v. Clark, 53 Ariz. 472, 90 Pac. (2d) 994. The statement of facts is, therefore, based both on the record in this case and that in Sims Printing Co. v. Frohmiller, supra.\\nIn 1938 defendant was the Secretary of State of the state of Arizona. Under the law it was his duty to cause the publication of a pamphlet setting forth the initiative and referendum measures to be submitted to the voters at the regular general election in that year. Section 1746, Rev. Code 1928, as amended by chap. 62, Sess. Laws of 1935. He entered into a contract with plaintiff to do this work, and when the copy for the pamphlet was submitted to it, defendant included therein one amendment to the Constitution, and two initiative measures that had been proposed by the people during the year 1936, but which had not been submitted at the general election held in that year, for reasons which are set forth in Kerby v. Griffin, 48 Ariz. 434, 62 Pac. (2d) 1131. The auditor refused to approve any payment to plaintiff for the seventeen pages which contained the measures last referred to, and the matter was brought before us in Sims Printing Co. v. Frohmiller, supra. Therein we held that it was improper to include such measures in a publicity pamphlet setting forth the measures to be submitted at the 1938 regular general election, and sustained the conduct of the auditor in refusing to approve a claim therefor against the state. In that opinion we said [54 Ariz. 64, 92 Pac. (2d) 335]:\\n\\\" . We conclude that the constitution means what it says and that the secretary of state was without power or authority to submit the 1936 proposed legislation by the people at the 1938 regular general election, and therefore he had no right to incur the expense for the publication of such proposed legislation.\\n\\\" . . . But the claim here was not authorized or permitted. Its incurrence by the secretary can find no sanction anywhere. It is too bad that the plaintiff should have rendered valuable service and not be recompensed therefor. The remedy open to plaintiff, if it has one at all, is against the person who procured the publishing of the 1936 items in the publicity pamphlet for 1938.\\\" (Italics ours.)\\nIt was doubtless upon the language contained in the last quotation that this present action was based. The general rule of law governing the present situation is well stated in the case of Sanborn v. Neal, 4 Minn. 126, 4 Gil. 83, 77 Am. Dec. 502, as follows:\\n\\\"When public agents, in good faith, contract with parties having full knowledge of the extent of their authority, or who have equal means of knowledge with themselves, they do not become individually liable, unless the intent to incur a personal responsibility is clearly expressed, although it should be found that through ignorance of the law they may have exceeded their authority. In the whole list of cases cited to this point, there is not a reason given for this doctrine which does not apply with full force to Trustees of school districts and all other officers acting on behalf of the public, whether they act for the public at large, or that portion only embraced in a particular district. In this as in all other cases, the intention of the parties governs, and when a person, known to be a public officer, contracts with reference to the public matters committed to his charge, he is presumed to act in his official capacity only, although the contract may not in terms allude to the character in which he acts, unless the officer by unmistakable language assumes a personal liability, or is guilty of fraud or misrepresentation. Being a public agent with his powers and duties prescribed by law, the extent of his powers are presumed to be as well known to all with whom he contracts as to himself. When therefore there is no want of good faith, a party contracts with such an officer with his eyes open, and has no one to blame if it should afterwards appear that the officer had not the author ity which it was supposed he had. Were the rule otherwise, few persons of responsibility would be found willing to serve the public in that large class of offices, which requires a sacrifice of time and perhaps money, but affords neither honor nor profit to the incumbent. Where one acts as the agent of a private person, the rule is different. There the authority is known only to the agent and his principal. He is therefore, with reason, held personally responsible, if he fails to bind his principal, because he is bound to know the extent of his authority, while the party with whom he contracts is not presumed to know anything concerning it.\\\" (Italics ours.)\\nThis rule has been followed in many cases, and we think it is not open to serious question. Lauderdale County v. City of Memphis, 167 Tenn. 493, 71 S. W. (2d) 686; Warters v. Boswell, 152 Tenn. 476, 279 S. W. 793; Henry v. Henry, 73 Neb. 746, 103 N. W. 441, 107 N. W. 789; Scheiber v. Von Arx, 87 Minn. 298, 92 N. W. 3.\\nThe complaint in the present action shows that it was drawn by a pleader who had full knowledge of the rule of law just stated, and it is apparent that he has endeavored to bring it within the rule. The precise question is whether he has done so.\\nWe first consider the status of the surety. It is made a party on the theory that the conduct of defendant was a violation of his official bond, and that under such circumstances the surety is liable therefor. The condition of defendant's bond is as follows: \\\"that the principal will well, truly, and faithfully perform all official duties then required, or as may be imposed on him, by law.\\\" Section 71, Rev. Code 1928. If the condition of the bond is violated any person injured or aggrieved by the wrongful act or default of the officer in his official capacity may sue on the bond in his own name. Section 75, Rev. Code 1928. We have held in the case of Weidler v. Arizona Power Co., 39 Ariz. 390, 7 Pac. (2d) 241, 243, that all persons \\u00e1re bound at their peril to know the law and the limitations, powers and duties of public officers, and that one may not recover on the bond of such officer for an act which was beyond his official powers. Plaintiff was bound to know that defendant had no right or authority under any provision of law, in his- capacity as Secretary of State, to have printed in the publicity pamphlet of 1938 measures which could not be submitted that year. This being the case, his action in ordering the printing was not one in the performance of an official duty. In the Weidler case, supra, we laid down the vital test as follows:\\n\\\" 'When an officer acts in the performance of his duty, and, so acting, acts to the hurt or annoyance of a third party or an innocent party, he is nevertheless acting in virtue of his office. That is to say, if his office gives him authority to act, he is acting in virtue of his office, although, in the performance of a specific duty he improperly exercises his authority.' (Italics ours.)\\\" Greenius v. American Surety Co., 92 Wash. 401, 159 Pac. 384, L. R. A. 1917F 1134.\\nApplying this principle to the case at bar, if the law had authorized defendant to have the 1936 measures printed in the pamphlet of 1938, and he had done so in a negligent or careless manner, he would have been liable on his official bond for failure to perform his duty properly, but since he had no authority whatever to include these measures in the publicity pamphlet of 1938, his act in contracting to have this done was not an official one, and he is not liable in a suit on his official bond for such act. It, therefore, follows that under no circumstances could the surety be liable on the bond.\\nWe consider next the liability of defendant in his private capacity. There are three factual situations which may have existed. Both plaintiff and defendant may have believed in good faith, knowing all the facts of the case, that the latter had a right as a matter of law to enter into the contract on behalf of the state. Under the rule above stated, if both parties acted in good faith, with a full knowledge of the facts but were mistaken as to the law, there is no personal liability of the defendant. Or, it may be that both parties acted with full knowledge of the facts but in bad faith, knowing the law to be against them, but believing that they could \\\"put over something\\\" on the auditor. . In such a case, they are in pari delicto, and plaintiff may not recover from defendant. On the other hand, it may be that defendant deliberately and intentionally misled plaintiff as to the fact that part of the copy covered the 1936 measures, and the plaintiff printed that portion of the pamphlet relying upon the statements or acts of defendant, and believing in good faith that what it printed was part of the 1938 measures. In the latter case, an action for fraud would lie against defendant. Upon examining the complaint, it is apparent that there was an attempt upon the part of the pleader to bring it within the latter principle, for it alleges: \\\"defendant Kerby knowingly, wrongfully and without authority at law, and without the knowledge of plaintiff, included one proposed constitutional amendment and two initiative measures which were filed in the office of Secretary of State in July, 1936, and should have been presented to the voters at the 1936 general election.\\\" We have stated the necessary elements of actionable fraud in the case of Moore v. Meyers, 31 Ariz. 347, 253 Pac. 626, 628, as follows:\\n\\\" . . . (1) A representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; (9) his consequent and proximate injury. 26 C. J. 1062. If these factors all appear, a cause of action for fraud will unquestionably exist.\\\"\\nLet us examine the complaint to see whether these elements appear sufficiently therein. It is not necessary to set it forth in full as it is somewhat lengthy. While specific and precise allegations of all the essential elements of actionable fraud are not set forth therein, and it was undoubtedly subject to a motion to make more definite and certain, yet we think that proof of all the matters alleged in the complaint would be sufficient to justify a jury in concluding that the essential elements of fraud did exist, and the complaint is not subject to a general demurrer as against defendant.\\nThe judgment of the superior court is reversed, with instructions to overrule the general demurrer of defendant Kerby, with leave to both parties to file such further pleadings as may be advisable under the general principles set forth in this opinion.\\nROSS, C. J., and McALISTEB, J., concur.\"}"
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+"{\"id\": \"5145315\", \"name\": \"BOARD OF SUPERVISORS OF YUMA COUNTY, STATE OF ARIZONA, and M. N. FORMAN, GEORGE HAGELY and FRANK GANDOLFO, constituting the members of said Board of Supervisors; and THE BOARD OF DIRECTORS OF THE GILA VALLEY POWER DISTRICT, and IKE PROEBSTEL, L. REITMAN, WAYNE T. WRIGHT, L. C. SPAIN and H. J. WOODHOUSE, constituting the members of the Board of Directors of the Gila Valley Power District, Appellants, v. MINERS AND MERCHANTS BANK, BISBEE, ARIZONA, a Corporation, Appellee\", \"name_abbreviation\": \"Board of Supervisors v. Miners & Merchants Bank\", \"decision_date\": \"1942-10-19\", \"docket_number\": \"Civil No. 4472\", \"first_page\": \"460\", \"last_page\": \"472\", \"citations\": \"59 Ariz. 460\", \"volume\": \"59\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:55:20.576176+00:00\", \"provenance\": \"CAP\", \"judges\": \"McALISTEE and EOSS, JJ., concur.\", \"parties\": \"BOARD OF SUPERVISORS OF YUMA COUNTY, STATE OF ARIZONA, and M. N. FORMAN, GEORGE HAGELY and FRANK GANDOLFO, constituting the members of said Board of Supervisors; and THE BOARD OF DIRECTORS OF THE GILA VALLEY POWER DISTRICT, and IKE PROEBSTEL, L. REITMAN, WAYNE T. WRIGHT, L. C. SPAIN and H. J. WOODHOUSE, constituting the members of the Board of Directors of the Gila Valley Power District, Appellants, v. MINERS AND MERCHANTS BANK, BISBEE, ARIZONA, a Corporation, Appellee.\", \"head_matter\": \"[Civil No. 4472.\\nFiled October 19, 1942.]\\n[130 Pac. (2d) 43.]\\nBOARD OF SUPERVISORS OF YUMA COUNTY, STATE OF ARIZONA, and M. N. FORMAN, GEORGE HAGELY and FRANK GANDOLFO, constituting the members of said Board of Supervisors; and THE BOARD OF DIRECTORS OF THE GILA VALLEY POWER DISTRICT, and IKE PROEBSTEL, L. REITMAN, WAYNE T. WRIGHT, L. C. SPAIN and H. J. WOODHOUSE, constituting the members of the Board of Directors of the Gila Valley Power District, Appellants, v. MINERS AND MERCHANTS BANK, BISBEE, ARIZONA, a Corporation, Appellee.\\nMr. R. C. Bennett, and Messrs. Moeur & Moeur, for Appellant Board of Directors.\\nMr. Peter C. Byrne, for Appellant Board of Supervisors.\\nMr. R. N. Campbell, for Appellee.\", \"word_count\": \"3454\", \"char_count\": \"19775\", \"text\": \"LOCKWOOD, C. J.\\n\\u2014 Miners and Merchants Bank, a corporation, plaintiff, filed a petition for a writ of mandamus against the board of supervisors of Yuma county, called the supervisors, and the board of directors of the Gila Valley Power District, called the directors, seeking to compel them to include in the budget of the district certain items. An alternative writ was issued and after a motion to quash and dismiss the petition was denied, the case was heard on its merits before the court without a jury, after which the alternative writ was made peremptory, and this appeal was taken.\\nThe factual situation on most points is not in serious dispute, and may be stated as follows: The district is a power district organized and existing under the provisions of chapter 173 of the Session Laws of 1919. In 1925 it issued $255,500 in bonds, under the provisions of chapter 173, supra. Sections 21 and 22 of said chapter read, so far as material, as follows:\\n\\\"Section 21. Said bonds and the interest thereon, shall be paid by revenue derived from an annual as sessment and levy of taxes upon the real property of the district, and the real property of the district shall be and remain liable to taxation for such payments. Any tract or tracts of land in any district, upon payment made at any time before the maturity of said bonds, of the proportion of the bonded indebtedness of said district which the acreage of said tract or tracts of land bears to the total bonded acreage of said district together with interest on said amount up to the next following interest paying day, shall be released and discharged from further tax levy for the payment of the principal and interest of the bonded indebtedness of the district then existing, except as in this otherwise provided for said tract or tracts of land shall be held liable for assessment and levy for all other obligations of the district, in event of default at maturity of any of said bonds, said lands shall be held liable for that proportion of the defaulted bonded indebtedness which the acreage of said tract or tracts of land bear to the total bonded indebtedness of the district.\\n\\\"It shall be the duty of the board of directors on or before June 1st, of each year, to make estimates of the amount of money required to meet the obligations of the district for the next fiscal year including maturing bonds and interest, maintenance, operating and current expenses, together with such additional amount, as may be necessary to meet any deficiency in the payment of said items incurred during the previous year, and to provide funds for tax sale purchases of delinquent district lands; such estimates shall be fully itemized so as to show amounts required for each of the specified funds into which the money of the district is divided by the treasurer, and the total amount of such itemized estimates, entering such estimates in full upon the records of the district and transmit a certified copy thereof to the board of supervisors of each county in which any lands of such district are located, together with a certified copy showing the total number of acres of taxable lands of such district and description of such portions thereof as are situated in each of the counties respectively, and shall include therein all lands within the boundaries of such district, except such as have been excluded by orders made in pursuance of this act.\\n\\\"Section 22. It shall be the duty of the board of supervisors of the county in which is located the office of any power district, immediately upon the receipt of the returns of the total assessment of said district, and upon the receipt of the certificate of the board of directors certifying the total amount of money required to be raised as herein provided, to fix the rate of levy necessary to provide the amount of money required to pay the interest and principal of the bonds of said district as the same shall become due, also, to fix the rate necessary to provide the amount of money required for any other purposes as in this chapter provided, and which are to be raised by the levy of assessments upon the real property of said district, . . . The rate of levy necessary to raise the required amount of money on the assessed valuation of the property of said district shall be increased fifteen per cent, to cover delinquencies. . . . All taxes or assessments levied under this chapter are special taxes and shall be liens upon the lands against which they are assessed, and, whenever the full title to any land within the district is acquired under the public land laws, from the state or the United States, the amounts of any and all taxes in this chapter provided for, which have been levied against said land and which remain unpaid, shall become immediately due and be collected in the same manner as other delimquent [delinquent] taxes are collected; provided that all of the burdens, obligations, liabilities and liens existing against other lands, in private ownership, embraced within such district, by reason of the organization of such district, or in any wise connected with, incident to, or arising from or by reason of the existence of such district, or any obligations thereof, are hereby declared to be and by operation of law, are extended with full force, power and effect to and upon any and all lands possessed and held by virtue of a certificate of purchase issued by the State Land Department of the State of Arizona.\\n\\\"Should the hoard of directors neglect, fail or refuse to provide the estimates and certificates as the basis for levy and collection of taxes at any time, the board of supervisors shall make such levy in such amount as they may deem sufficient for the purpose of the district for any fiscal year. Such board of supervisors, upon the request of any person holding any fully matured unpaid and undisputed evidence of district indebtedness, shall make such levy of taxes upon the taxable property of the district as will provide for the payment of such indebtedness of the district held by such person and such other indebtedness as shown by such person to exist, and levies so made shall be collected and enforced in the same manner as regular assessments and tax levies for district purposes.\\n\\\"Should the directors of the district, any board of supervisors, or officer of any board, or any county assessor or tax officer of any county neglect or refuse to perform such official acts as may be necessary to give effect and create lien of taxes, and collection of taxes, under the provisions of this act required to be assessed, levied and collected, any person holding evidence of any matured, unpaid and indebtedness of the district, may compel the doing of any such official act and acts by writ of mandamus, in application for which may be joined as defendants all directors, board and officers whose neglect, failure or refusal may be the cause of complaint, and the court in any such writ may make such order as will give the party complaining full relief.\\\"\\nIn 1928 the then board of directors of the district adopted a resolution to the effect that there should be an annual levy in the sum of $14,704 for a sinking fund to pay the principal of said bonds when and as due. Pursuant to the provisions of section 21, supra, the directors prepared a budget for the fiscal year commencing July 1, 1941, and, in certifying the total number of acres of taxable lands of the district as required by law, included some thirty thousand acres of land, the title to which had passed to the state of Arizona through sale for delinquent taxes, and nearly four thousand acres of land which had paid its proportion of the bonded indebtedness, as provided in section 21, supra. At the time the budget was thus prepared there was due and unpaid interest on said bonds of over $100,000, though taxes had been levied in previous years in an amount sufficient to pay them, but these taxes were unpaid and delinquent. No estimate was made in the budget for the payment of this indebtedness, nor was any estimate made for a sinking fund, as provided by resolution of the directors in 1928. The supervisors were requested by plaintiff to add to the budget as submitted by the directors an amount sufficient to pay the delinquent taxes aforesaid, and the amount required by the resolution of the directors in 1928 for a sinking fund, and to make the levy for the total budget only against the lands not owned by the state of Arizona which had not paid their proportion of the bonded indebtedness, under section 21, supra, as aforesaid. This the supervisors declined to do, and made their levy in accordance with the budget as made by the directors and on all the lands certified in the district, including state lands and those which had paid their proportion of the bonded indebtedness.\\nUpon the hearing, the court granted all the prayers of the petition and ordered the supervisors to make a levy for an amount including all of the delinquent interest and sinking fund aforesaid, and that such levy be made only upon the lands of the district remaining after the state lands and those which had paid out, as aforesaid, were deducted.\\nThe first question which we consider is whether the court erred in failing to quash the writ and dismiss the petition on the ground that mandamus did not lie under the facts as stated in the petition. It is urged (a) that no timely demand was made upon the di rectors for the budgetary relief sought, (b) that plaintiff did not show an interest in the subject matter which entitled it to ask for relief, (c) that there was no allegation that the taxes theretofore levied for the delinquent interest were uncollectible, and (d) that the resolution of the board of directors in regard to a sinking fund in 1928 was not binding on later directors.\\nThe motion to quash made in the court below did not include the grounds set forth in (a), (b) and (d), and these points were not urged in the trial court. We think, therefore, they fall under the well known rule that questions which were not presented to the trial court may not be raised for the first time on appeal. City of of Glendale v. Coquat, 46 Ariz. 478, 52 Pac. (2d) 1178, 102 A. L. R. 837. Even, however, if they were properly raised here, we think that so far as (a) is concerned, section 22, supra, which expressly authorizes the bringing of mandamus proceedings, does not require as a condition precedent that any demand to correct the estimate and certificate be made upon the board of directors of a district. All that is necessary is that the directors have failed to perform their statutory duty.\\nApparently (b) is based upon the claim that it does not appear just how great an interest plaintiff had in the subject matter of the action. It is admitted that plaintiff was the owner of some of the bonds upon which interest was delinquent, and this clearly brings it within the statute. It is not merely the large bondholder who is protected, but the small one as well.\\nSo far as (d) is concerned, plaintiff has practically admitted in its brief that it is not entitled to have a levy made for a sinking fund because the action of the directors in 1928 was not binding on the present board. The mere fact, however, that more relief is prayed for in the petition for mandamus than can properly be granted, does not require that the writ be quashed, if any of the relief asked for is proper. Miners & Merchants Bank v. Herron, 46 Ariz. 71, 47 Pac. (2d) 430; State v. Jessup & Moore Paper Co., 1 Boyce, Del., 379, 77 Atl. 16, 30 L. R. A., (N. S.) 290.\\nThis leaves for consideration (c), which is that there was no allegation that the taxes theretofore levied for the delinquent interest were uncollectible. We consider then the law upon this subject.\\nPlaintiff relies upon the following portion of section 21, supra:\\n\\\"It shall be the duty of the board of directors on or before June 1st, of each year, to make estimates of the amount of money required to meet the obligations of the district for the next fiscal year including maturing bonds and interest, maintenance, operating and current expenses, together with such additional amount, as may he necessary to meet any deficiency in the payment of said items incurred during the previous year, . . . .\\\" (Italics ours.)\\nAnd it is urged that the italicized phrase requires that when any interest for previous years is unpaid, another levy must be made to cover such delinquent payment.\\nThe supervisors and directors rely upon our decision in Miners & Merchants Bank v. Herron, supra [46 Ariz. 71, 47 Pac. (2d) 434], wherein the court said:\\n\\\"In the absence of an affirmative allegation or showing of the improbability of collecting the delinquent taxes because of dereliction of duty by the taxing officers, or other good and sufficient reason, we think plaintiff's right is very doubtful, that it certainly is not clear, and that in such circumstances the writ should not issue. It is on the plaintiff to show his right to the writ, not on the defendant to show he has no clear right to it. The burden of alleging and proving the right is up to him who asserts it.\\\"\\nWe think that principle applies to the present situation. If a second levy is made, as requested by plaintiff, and thereafter the delinquent taxes are collected, as presumably they will be either by voluntary payment or sale of the property affected thereby, there would be a double taxation for a single purpose. We think, therefore, that unless it appears the strong probability is that the delinquent taxes will not and cannot be collected, mandamus should not be issued to compel a second levy for the purpose for which the delinquent taxes were assessed.\\nWhat is the showing made as to their uncollectibility f These delinquent taxes, according to the record, were levied upon all of the lands of the district, regardless of whether such lands had paid out, under section 21, supra, or were held by the state of Arizona under tax deeds following the sale for delinquent taxes. We think that if a levy is made against lands which are not subject to taxation for that purpose, it may certainly be assumed that such levy is uncollectible.\\nSo far as lands which had passed to the state by virtue of a tax deed are concerned, we think there can be no question. Paragraph 4845, R. C. S. A. 1913, expressly provides that the only method of divesting a tax lien is by payment of the tax or sale for delinquent taxes. There has been no change in this rule except that a third method of foreclosure of a mortgage to the state was added in 1931. Laws 1931, c. 103. State v. Martin, ante, p. 438, 130 Pac. (2d) 48. Under our tax sale procedure, after the period of redemption has expired and a deed has finally issued to the purchaser, all previous tax liens are wiped out and the land is in no manner subject thereto. The Constitution of Arizona expressly provides that the property of the state is not subject to any form of taxation. Sec. 2, Art. 9, Const, of Arizona. So long, therefore, as the land is owned by the state after tax deed is issued it is not subject to taxation for district purposes, and the tax lien for taxes thereon previously existing for those purposes is wiped out. We think, therefore, that so far as such lands are concerned the taxes which had been levied thereon are uncollectible.\\nSo far as the lands which had paid out their bonded indebtedness are concerned, section 21, supra, expressly says they \\\" shall be released and discharged from further tax levy\\\"'except under certain circumstances which had not arisen at the time this proceeding was started. If, therefore, any of the delinquent taxes had been levied against any of such classes of lands, they were obviously uncollectible, and the directors and the supervisors were required to make an additional levy to cover such delinquent taxes. The amended petition alleges that much of the delinquent taxes were on state lands, but it does not show how much of the unpaid delinquent interest was represented by the uncollectible tax thereon, or on lands which had been paid out, and how much was represented by taxes which are still a valid lien upon lands of the district subject thereto, and, therefore, presumably collectible. We think that while a motion to make the complaint more definite and certain as to the amount of taxes uncollectible for these reasons and for which, therefore, a new levy should have been made, would have been proper, the trial court properly refused to quash the writ and dismiss the action.\\nThe next question is as to whether the court properly rendered its judgment. In view of what we have already said, it is obvious that the judgment, so far as it commanded the supervisors and the directors to add to the budget the amount provided for as a sinking fund in the resolution of May 12, 1928, was improper, and that since the record does not show how much of the delinquent interest was uncollectible, under the rule above set forth that portion of the judgment directing a levy to be made for all such delinquent interest cannot stand. Since, however, there is one other important question raised, which will necessarily need determination if the case be sent back to the trial court for further action, we discuss it also.\\nIt is whether the supervisors are without jurisdiction to budget for a power district except upon the total failure of the board of directors to make any budget for the district. The duty of the supervisors in these premises is covered by the provisions of section 22, supra. An examination thereof satisfies us that if any person to whom the district is legally indebted shows that a levy has not been made in the budget of the district of taxes to provide for the payment of his indebtedness, or that levies previously made are uncollectible, it is the duty of the supervisors to make provision therefor, and for all other indebtedness in the same situation, and this right and duty applies to an insufficient budget as well as to a condition when no budget at all was made.\\nThere are other matters raised, but in view of what we have said we think it unnecessary to discuss them.\\nUpon the whole issue we hold, therefore, that upon a showing that there was any \\\"fully matured unpaid and undisputed evidence of district indebtedness,\\\" it was the duty of the supervisors, in case such indebtedness was not provided for in the budget submitted by the district, or by taxes previously levied and which were not shown to be uncollectible, to correct the budget by making a levy to provide for such indebtedness, and further that the levy for such indebtedness should be made only against the property in the district which was subject for taxation tberefor under the views expressed herein.\\nThe judgment of the superior court of Yuma county is reversed and the case remanded for further proceedings under this opinion, with leave to both parties to amend their pleadings, and to offer such further evidence as may be proper in support of such pleadings.\\nMcALISTEE and EOSS, JJ., concur.\"}"
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+"{\"id\": \"5173853\", \"name\": \"CROZIER v. FROHMILLER et al.\", \"name_abbreviation\": \"Crozier v. Frohmiller\", \"decision_date\": \"1947-04-14\", \"docket_number\": \"No. 4864\", \"first_page\": \"296\", \"last_page\": \"300\", \"citations\": \"65 Ariz. 296\", \"volume\": \"65\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:22:37.014943+00:00\", \"provenance\": \"CAP\", \"judges\": \". STANFORD, C. J., and UDALL, J., concur.\", \"parties\": \"CROZIER v. FROHMILLER et al.\", \"head_matter\": \"179 P.2d 445\\nCROZIER v. FROHMILLER et al.\\nNo. 4864.\\nSupreme Court of Arizona.\\nApril 14, 1947.\\nP. H. Brooks, of Winslow, for appellant.\\nT. G. McKesson and T. P. Riordan, both of Phoenix, for appellee James H. Kerby.\\nSnell, Strouss & Wilmer, of Phoenix, for appellee Ana Frohmiller.\\nCunningham & Carson, of Phoenix, for appellee Wm. M. Cox.\\nStahl & Murphy, of Phoenix, for appellee Maryland Casualty Co.\\nMoore, Romley & Roca, of Phoenix, for appellee Metropolitan Casualty Ins. Co. of New York.\\nKramer, Morrison, Roche & Perry, of Phoenix, for appellee Fidelity & Deposit Co. of Maryland.\", \"word_count\": \"1566\", \"char_count\": \"9849\", \"text\": \"WINDES, Superior Judge.\\nThis is a suit by the appellant, a taxpayer, hereafter designated plaintiff, against the appellees, Secretary of State, et ah, hereafter designated defendants. The facts are not in dispute. In the year 1933 the legislature made a lump sum appropriation for the Office of Secretary of State for the fiscal years 1933-34 and 1934-35 in the aggregate amount of $44,458, for salaries and wages; for printing session laws; for operation; for initiative and referendum expense. Defendant James H. Kerby, the then secretary of state, used the entire appropriation with the exception of a small item of $48.20 for purposes other than those designated in the appropriation for initiative and referendum expense, and spent for the latter item the additional sum of $59,794.41. Defendant State Auditor approved the claims and defendant Cox, the then State Treasurer, paid the same with state funds. The action is to recover the amount expended over and above the appropriation upon the ground it was an illegal expenditure of public funds without legislative appropriation. The lower court rendered a summary judgment against the plaintiff.\\nThe issue of law is clear-cut. Plaintiff contends that since there was no legislative appropriation for the expenditures, they were without authority of law and he should recover. Defendants contend that since the Constitution itself, art. 4, pt. 1, \\u00a7 1, requires the secretary of state to perform the duties for which the expenditures were made, there was no necessity for legislative appropriation. In other words, defendants' position is that since the Constitution requires the secretary of state to perform the duties, it was in law a constitutional appropriation to the extent of the necessary expense in carrying out such duties.\\nAppellant cites numerous provisions of our statutes concerning the expenditure of public funds and the necessity for a legislative appropriation in order to incur a public obligation. The provisions of our Financial Code or any other enactment have no bearing upon the problem. If the Constitution in legal effect directs the expenditure, there is nothing the legislature can do, or omit to do, to prevent it. We therefore confine ourselves to the constitutional question.\\nArticle 4, part 1, section 1, Arizona Constitution, provides in substance as follows: That the people reserve the right to enact and reject laws independently of the legislature and at their option to approve or reject any legislative act; that any measure or constitutional amendment proposed under the initiative and any measure to which the referendum is applied shall be referred to a vote of the qualified electors; that the legislature .shall not repeal nor amend a measure approved by the electors; that initiative and referendum petitions be filed, prescribing the contents thereof; directs the secretary of state to cause these measures to be placed upon the official ballot in such manner that the electors may express their approval or disapproval; directs that the text of all measures shall be published as proposed amendments to the Constitution; and directs that the entire section shall in all respects be self-executing. Article 21, section 1, Arizona Constitution, concerning the publication of constitutional amendments- so far as applicable herein reads:'\\n\\\" ' * Until a method of publicity is otherwise provided by law, the secretary of state shall have such proposed amendment or amendments published for a period of at least ninety days previous to the date of said election in at least one newspaper in every county of the state in which a newspaper shall be published, in such manner as may be prescribed- by law. \\\"\\nIt is crystal clear that in adopting the foregoing provisions of our Constitution the people of this state meant to reserve to themselves without the possibility of legislative interference the supreme power in legislative matters, and meant that the legislature occupy a secondary position in this field of government. It was never intended that the legislature be given the power, directly or indirectly, by action .or inaction, to hamper or shackle the people in the exercise of such a vital right. So fearful were the people that this right to supervise the activities of the legislature might in some way be impeded they provided in the Constitution machinery sufficient to exercise the right without legislation, and in addition expressly directed that these provisions should he self-executing. Consequently they are self-executing. ' It would be possible to submit measures to the voters without enabling legislation unless perchance it is necessary that the legislature appropriate the funds to bear the cost of such submission. If a legislative appropriation be necessary, potentially the will of the people could be defeated in this important matter. It would be relegated to the status of a mere moral force. The Consti tution does not say this supreme right of legislation shall be exercised if the legislature chooses to make an adequate appropriation. It says the people shall have the right independently of the legislature, and this means independently of legislative action or inaction. There is no implied proviso that this right shall be exercised provided the legislature sees fit to appropriate sufficient funds to pay the cost thereof. The legislature could not interfere with these matters by direct legislation, and what it cannot do directly it cannot do indirectly. State et al. v. Yums, Irr. District, 55 Ariz. 178, 99 P.2d 704. If there be an evil resulting from this situation the remedy must be something other than choking the life from the constitutional right to use independently the initiative and referendum.'\\nAppellant cites the case of Kerby v. Griffin, 48 Ariz. 434, 62 P.2d 1131. There is dictum in that case indicating that the court assumed no publicity of initiative and referendum matters could be paid with public funds without a legislative appropriation. Therein the court said that the State Auditor is permitted to audit and allow claims against the state for which the legislature has appropriated money, and not otherwise. This rule is not without exception. In fact, this court has heretofore held that the Auditor must allow claims without legislative appropriation if the Constitution in legal effect imposes the obligation to pay the same. Windes v. Frohmiller, 38 Ariz. 557, 3 P.2d 275.\\nIn Kerby v. Griffin, supra, the court did not have before it for consideration or decision the question as to whether the expenditure could have been made without legislative appropriation.\\nIt may be that the secretary of state spent more than was necessary to perform his constitutional duties, but that question is not before the court for decision. Considering the history of prior appropriations to this office, however, it does appear that the appropriation was entirely inadequate for the secretary to pay the usual expenses of operating his office, and also cause proper publicity to be given such measures as was required by law.\\nThe position herein taken is not without judicial sanction. The State of North Dakota in passing on the same question and with substantially the same constitutional provisions stated:\\n\\\"The provision by its terms is made self-executing, and, hence, given the force and effect of a positive, active rule of action. The provision further restricts legislative power; it gives to the lawmakers only power to enact laws to facilitate the operation of the constitutional provision, and specifically deprives them of power to enact any law 'to hamper, restrict or impair the exercise of the rights' reserved to the people in the provision. Hence, if the Legislative Assembly had enacted any legislation which would have interfered with the performance by the secretary of state of the duty enjoined upon him by the constitution al provision, such legislative enactment would have been a mere nullity. It is apparent that the secretary of state cannot perform the duty enjoined upon him by the provisions of the Constitution without incurring the expense incident to the publication and mailing of the publicity pamphlet. If the Legislative Assembly could prevent the secretary of state from performing this duty by failing or refusing to appropriate funds for the prescribed constitutional purpose, it could, in effect, nullify the constitutional mandate. We are of the opinion that it was the intention of the people as evidenced by this constitutional provision that the secretary of state should perform all the functions prescribed, without legislative interference, and' that the cost incident to the publication and distribution of the publicity pamphlet is a proper expenditure to be defrayed out of the state treasury, upon bills audited by the state auditing board, even though the Legislative Assembly has made no specific appropriation for the purpose.\\\" State ex rel. Byrne, Secretary of State, v. Baker, State Auditor, 65 N.D. 190, 262 N.W. 183, 184.\\nJudgment affirmed.\\n. STANFORD, C. J., and UDALL, J., concur.\\nLA PRADE, J., having disqualified himself, the Honorable DUDLEY W. WINDES, Judge of Superior Court of Maricopa County, was called to sit in his stead.\"}"
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+"{\"id\": \"5380775\", \"name\": \"C. D. PUTNAM et al., Appellees, v. MICHAEL KENNEDY, Appellant\", \"name_abbreviation\": \"Putnam v. Kennedy\", \"decision_date\": \"1889-02-15\", \"docket_number\": \"Civil No. 258\", \"first_page\": \"139\", \"last_page\": \"139\", \"citations\": \"3 Ariz. 139\", \"volume\": \"3\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:28:40.599779+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"C. D. PUTNAM et al., Appellees, v. MICHAEL KENNEDY, Appellant.\", \"head_matter\": \"[Civil No. 258.]\\nC. D. PUTNAM et al., Appellees, v. MICHAEL KENNEDY, Appellant.\\nAPPEAL from the District Court of the Second Judicial District in and for the County of Pinal.\\nNo appearances of record.\\nFebruary 15, 1889.\", \"word_count\": \"38\", \"char_count\": \"230\", \"text\": \"Affirmed.\"}"
\ No newline at end of file
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+"{\"id\": \"5755886\", \"name\": \"IB PROPERTY HOLDINGS, LLC, a Delaware limited liability company, Plaintiff/Appellee, v. RANCHO DEL MAR APARTMENTS LIMITED PARTNERSHIP, an Arizona limited partnership; and M.P.I. General II, Inc., an Arizona corporation, Defendants/Appellants\", \"name_abbreviation\": \"IB Property Holdings, LLC v. Rancho Del Mar Apartments Ltd. Partnership\", \"decision_date\": \"2011-08-23\", \"docket_number\": \"No. 2 CA-CV 2011-0030\", \"first_page\": \"61\", \"last_page\": \"69\", \"citations\": \"228 Ariz. 61\", \"volume\": \"228\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T01:37:03.862654+00:00\", \"provenance\": \"CAP\", \"judges\": \"CONCURRING: JOSEPH W. HOWARD, Chief Judge and PETER J. ECKERSTROM, Presiding Judge.\", \"parties\": \"IB PROPERTY HOLDINGS, LLC, a Delaware limited liability company, Plaintiff/Appellee, v. RANCHO DEL MAR APARTMENTS LIMITED PARTNERSHIP, an Arizona limited partnership; and M.P.I. General II, Inc., an Arizona corporation, Defendants/Appellants.\", \"head_matter\": \"263 P.3d 69\\nIB PROPERTY HOLDINGS, LLC, a Delaware limited liability company, Plaintiff/Appellee, v. RANCHO DEL MAR APARTMENTS LIMITED PARTNERSHIP, an Arizona limited partnership; and M.P.I. General II, Inc., an Arizona corporation, Defendants/Appellants.\\nNo. 2 CA-CV 2011-0030.\\nCourt of Appeals of Arizona, Division 2, Department A.\\nAug. 23, 2011.\\nGust Rosenfeld P.L.C. By Matthew D. Bedwell, Phoenix, Attorneys for Plaintiff/Ap-pellee.\\nSherman & Howard L.L.C. By David A. Weatherwax, Dewain D. Fox, Phoenix, Attorneys for Defendants/Appellants.\", \"word_count\": \"4414\", \"char_count\": \"26839\", \"text\": \"OPINION\\nBRAMMER, Judge.\\n\\u00b6 1 Rancho Del Mar Apartments Limited Partnership (Rancho) and M.P.I. General II, Inc. (MPI) (collectively referred to herein as Rancho) appeal from the trial court's order granting a preliminary injunction against it in favor of IB Property Holdings, LLC (IB) and the court's denial of Rancho's motion to dissolve the injunction. Rancho argues the court erred by applying the wrong standard when determining whether to issue the preliminary injunction, by finding IB would suffer irreparable harm if the injunction was not granted, and by finding IB had a strong likelihood of success at trial. We affirm.\\nFactual and Procedural Background\\n\\u00b6 2 We view the facts in the light most favorable to upholding the trial court's ruling. Smith v. Beesley, 226 Ariz. 313, \\u00b6 3, 247 P.3d 548, 551 (App.2011). This case involves a dispute about an easement among owners of a three-phase apartment complex. David Case and Mark Breen own equal shares of MPI. MPI is the operating general partner of Rancho, which owns Phase I of the complex. IB took title to Phase II following a trustee sale after Phase II's previous owner, Del Moral Limited Partnership (Del Moral), which Case owned in part, defaulted on loan obligations it had secured with a deed of trust on Phase II. Las Mon-ta\\u00f1as Village Limited Partnership, also affiliated with Case, owns Phase III. Prior to Del Moral's default, all three phases of the apartment complex were treated as a single entity operating under shared use agreements.\\n\\u00b6 3 In 1991, Rancho granted an easement to Del Moral's predecessor, Resolution Trust Corporation (RTC). Case and Breen were involved in negotiating and executing the easement. Del Moral paid for the construction of a security gate at the main Campbell Avenue entrance to the project and also constructed a gate across the easement, obstructing access to Bilby Road. The Bilby Road gate remained locked from its construction until IB opened it after it took title to Phase II. Rancho relocked the gate, and IB reopened it. After IB opened the gate for a second time, Rancho closed the gate again and constructed a fence completely blocking access to Bilby Road.\\n\\u00b6 4 IB filed a complaint seeking injunctive relief and damages after Rancho built the fence, accompanied by a motion for a temporary restraining order to enjoin Rancho from blocking the easement. The parties stipulated to vacating the temporary restraining order hearing and agreed to an evidentiary hearing on IB's request for a preliminary injunction. At the conclusion of the hearing, the trial court granted the preliminary injunction. Rancho then filed a motion for reconsideration limited to the issue of irreparable harm and requesting in the alternative a stay pending appeal, which the court denied. The court signed an amended order granting the preliminary injunction. Rancho filed a motion to dissolve the preliminary injunction pursuant to Rule 65(c), Ariz. R. Civ. P., which the court denied. This appeal followed. We have jurisdiction pursuant to A.R.S. \\u00a7 12-2101(A)(5)(b).\\nDiscussion\\n\\u00b6 5 \\\"Granting or denying a preliminary injunction is within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of that discretion.\\\" Valley Med. Specialists v. Farber, 194 Ariz. 363, \\u00b6 9, 982 P.2d 1277, 1280 (1999). We defer to the court's factual findings unless clearly erroneous, but review its legal conclusions de novo. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, \\u00b6 9, 156 P.3d 1149, 1152 (App.2007).\\nThe Shoen Standard for Preliminary In-junctive Relief\\n\\u00b6 6 Rancho argues the trial court erred when it utilized the standard for granting preliminary injunctive relief established by Division One of this court in Shoen v. Shoen, 167 Ariz. 58, 63, 804 P.2d 787, 792 (App.1990). The court in Shoen adopted a Ninth Circuit standard the United States Supreme Court subsequently overturned in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20-21, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), and Rancho urges us to follow the more stringent standard Winter announced. As a preliminary matter, although the court in Shoen cited both federal and state law as authority for the standard it ultimately adopted, it did not suggest Arizona either should or would follow federal rather than state precedent as that law developed. 167 Ariz. at 63, 804 P.2d at 792. To the extent Rancho suggests we should do so now, we decline the invitation.\\n\\u00b6 7 Although Rancho contends Arizona courts \\\"have long followed the same standard\\\" as federal courts when considering whether to issue preliminary injunctions, it offers no authority supporting its suggestion that we should reject Arizona's established standard in the face of the developed conflicting federal law. Our supreme court adopted the Shoen standard in Smith v. Arizona Citizens Clean Elections Commission, 212 Ariz. 407, \\u00b6 10, 132 P.3d 1187, 1190-91 (2006), as have we, see Kromko v. City of Tucson, 202 Ariz. 499, \\u00b6 3, 47 P.3d 1137, 1139 (App.2002), and we are bound to follow decisions of our supreme court, Green v. Lisa Frank, Inc., 221 Ariz. 138, \\u00b6 13, 211 P.3d 16, 23 (App. 2009). Our court of appeals has continued to employ the Shoen standard since Winter was decided. See Ariz. Ass'n of Providers for Persons with Disabilities v. State, 223 Ariz. 6, \\u00b6 12, 219 P.3d 216, 222 (App.2009); see also White v. Greater Ariz. Bicycling Ass'n, 216 Ariz. 133, \\u00b6 14, 163 P.3d 1083, 1087-88 (App.2007) (we consider decisions of coordinate courts highly persuasive and binding). The Shoen standard thus remains the law in Arizona, and the trial court did not err in applying it here.\\n\\u00b68 Additionally, the distinction Rancho urges here does not affect the outcome in this ease. The relevant difference between the Winter and Shoen standards is that Winter requires the party seeking an injunction to demonstrate that irreparable injury is likely, rather than merely possible. See Winter, 555 U.S. at 22, 129 S.Ct. 365. Here, although Rancho argues the trial court found irreparable harm was only \\\"possible,\\\" in its final amended order granting the injunction the court indeed found \\\"[IB] will suffer irreparable injury if an injunction is not granted.\\\" A finding that irreparable injury will occur plainly satisfies a requirement that irreparable injury be likely.\\nEvidence of Irreparable Harm\\n\\u00b6 9 Rancho argues the trial court erred in granting, and then failing to dissolve, the preliminary injunction because IB had failed to show a likelihood of irreparable harm. The party seeking a preliminary injunction must establish:\\n1) A strong likelihood that he will succeed at trial on the merits;\\n2) The possibility of irreparable injury to him not remediable by damages if the requested relief is not granted;\\n3) A balance of hardships favors himself; and\\n4) Public policy favors the injunction.\\nShoen, 167 Ariz. at 63, 804 P.2d at 792. The court found as to factors (3) and (4) \\\"the harm to [IB] if the injunction is not granted outweighs the harm to [Rancho] if the injunction is granted\\\" and \\\"public policy favors enforcement of the easement contract\\\"; Ran-cho does not challenge those findings on appeal. The court also found:\\n[IB] will suffer irreparable injury if an injunction is not granted because the lack of access to Bilby will reduce occupancy of [IB]'s property, cause loss of income and loss of value of the property at a time when [IB] is seeking buyers for the property, and the amount of loss will be difficult to measure with reasonable certainty.\\nRancho contends this finding was not supported by the evidence because IB's alleged injury \\\"is remediable by damages\\\" and monetary damages are adequate as a matter of law.\\n\\u00b6 10 As Shoen provides, the party seeking an injunction must show a possibility of irreparable injury \\\"not remediable by damages.\\\" 167 Ariz. at 63, 804 P.2d at 792. Monetary damages may provide an adequate remedy at law. See Cracchiolo v. State, 135 Ariz. 243, 247, 660 P.2d 494, 498 (App.1983). However, where a loss is uncertain, monetary damages may be inadequate. See Phoenix Orthopaedic Surgeons, Ltd. v. Peairs, 164 Ariz. 54, 59, 790 P.2d 752, 757 (App.1989), overruled on other grounds by Farber, 194 Ariz. 363, 982 P.2d 1277. To determine whether damages would be an adequate remedy at law, the court should consider \\\"the difficulty of proving damages with reasonable certainty.\\\" Restatement (Second) of Contracts \\u00a7 360 (1981); see also Restatement \\u00a7 352 (damages not recoverable for loss beyond amount established with reasonable certainty); Restatement \\u00a7 360 emt. b (damages inadequate remedy if injured party can prove some but not all loss); Har-alson v. Fisher Surveying, Inc., 201 Ariz. 1, \\u00b6 35, 31 P.3d 114, 121 (2001) (McGregor, J., concurring in part and dissenting in part) (Arizona courts generally apply law of the Restatement absent Arizona law to contrary).\\n\\u00b6 11 Rancho argues IB's injury is remediable by damages because its complaint alleged it had suffered monetary damages \\\"in an amount to be proven at trial\\\" and did not allege that the full amount of its damages would be difficult to calculate. However, even if some damages may be proved and recovered, injunctive relief may be appropriate if those damages are inadequate to address the full harm suffered. See Peairs, 164 Ariz. at 59, 790 P.2d at 757.\\n\\u00b6 12 Rancho also challenges the trial court's implicit conclusion that potential monetary damages would be too uncertain to compensate IB adequately. IB's real estate broker, Arthur Wadlund, testified the value of the property would increase if access to and from Phase II was made available to Bilby Road because it would improve the access for Phase II's prospective tenants. Equitable relief may be appropriate to prevent a loss of potential customers. See, e.g., Restatement (Second) of Contracts \\u00a7 360 emt. b (breach of covenant not to compete causes \\\"the loss of customers of an unascer-tainable number\\\"); Restatement (Second) of Torts \\u00a7 944 (1979) emt. d (estimate of business diverted via unfair competition \\\"necessarily contains a high degree of conjecture\\\").\\n\\u00b6 13 Rancho suggests Wadlund's testimony implied it would be \\\"possible\\\" to calculate IB's alleged damages, but he had not attempted to do so. To the contrary, Wadlund testified there was \\\"probably a way to estimate\\\" the harm, but that \\\"[i]t would be pretty speculative to figure out.\\\" Whether Wadlund had attempted to calculate such an estimate is irrelevant to his opinion that any results would have been speculative. \\\"We will not substitute our judgment for that of the trier of fact on matters pertaining to the credibility and weight of expert testimony.\\\" Nordstrom, Inc. v. Maricopa County, 207 Ariz. 553, \\u00b6 24, 88 P.3d 1165, 1171 (App.2004); see also Ariz. R. Civ. P. 52(a) (we give due regard to trial court's opportunity to judge witness credibility). The trial court's finding that IB would suffer irreparable injury if an injunction was not granted was supported by the evidence and was not \\\"clearly erroneous.\\\" See Farber, 194 Ariz. 363, \\u00b6 9, 982 P.2d at 1280.\\n\\u00b6 14 Rancho further contends IB suffered no harm from the Bilby gate because there is access to Phase II via a southern entrance from Campbell Avenue that does not lead traffic through Rancho's property. Rancho does not allege Wadlund was unaware of this entrance; in fact, he acknowledged there was access to the property from Campbell Avenue. Nonetheless, he opined that being able to access Phase II from Bilby Road would increase its value. Neither does Rancho contest that Phase II does not abut Campbell Avenue. And testimony from other witnesses revealed the southern entrance from Campbell Avenue leads traffic through a small residential street unsuitable for access to a large apartment complex. Therefore, the trial court's determination that IB would be harmed by the lack of access from Bilby Road, regardless of access from Campbell Avenue, is supported by the evidence. See Nordstrom, Inc., 207 Ariz. 553, \\u00b6 24, 88 P.3d at 1171.\\nLikelihood of Success on the Merits\\n\\u00b6 15 Rancho also argues the trial court erred in concluding IB had a strong likelihood of success on the merits because the court incorrectly determined parol evidence of the parties' intent as to the scope of the easement was inadmissible. It insists the parties intended the easement would be limited to emergency vehicle use only. Rancho also argues the court erred by ignoring evidence the easement had been modified or terminated by abandonment, waiver, and es-toppel.\\nParol Evidence\\n\\u00b6 16 Principles of contract interpretation apply to easements. See, e.g., State v. Mabery Ranch, Co., 216 Ariz. 233, \\u00b6 28, 165 P.3d 211, 219 (App.2007) (applying rules of contract interpretation to easement agreement). The parol evidence rule prohibits the admission of extrinsic evidence to vary or contradict the terms of a contract, although such evidence is admissible to interpret them. Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 152, 854 P.2d 1134, 1138 (1993). A court must consider the evidence, but need admit it only when the contract language is \\\"reasonably susceptible\\\" to the interpretation offered by the proponent, and then only to determine the parties' intended meaning. Id. at 154, 854 P.2d at 1140. \\\"When 'the provisions of the contract are plain and unambiguous upon their face, they must be applied as written, and the court will not pervert or do violence to the language used, or expand it beyond its plain and ordi nary meaning or add something to the contract which the parties have not put there.' \\\" Employers Mut. Cas. Co. v. DGG & CAR, Inc., 218 Ariz. 262, \\u00b6 24, 183 P.3d 513, 518 (2008), quoting D.M.AF.B. Fed. Credit Union v. Employers Mut. Liab. Ins. Co. of Wis., 96 Ariz. 399, 403, 396 P.2d 20, 23 (1964).\\n\\u00b6 17 The easement states:\\nGrantor hereby grants and conveys to Grantee and its successors and assigns a[ ] pedestrian and passenger vehicle easement over entranceways and vehicle driveways located on Phase I . as they may exist from time to time, for the purposes of providing pedestrian ingress and egress and passenger vehicle ingress and egress to and from Phase II \\u2014 III, all as hereinafter limited.\\nRancho notes the easement also declares \\\"[i]t is the intention of the parties that they grant each other reciprocal easements for the sole purpose of limited ingress and egress upon the terms, provisions, conditions, and covenants contained in th[e] agreement.\\\" This provision, Rancho contends, clearly indicates the scope of the easement is reasonably susceptible to the interpretation it offers because the easement was intended to be \\\"limited,\\\" and that limitation was for emergency vehicle access only.\\n\\u00b6 18 Rancho points to evidence in the record that it asserts demonstrates the true intent of the parties. In their affidavits, Case and Breen declared that when the easement was granted the parties intended that, if an access point was constructed from the complex to Bilby Road, access would be blocked by a locked gate and be limited to emergency vehicle use only. They also noted that if Bilby Road had been intended to provide access to and from Phase II, there would have been no reason for the easement providing access to Campbell Avenue. Breen further stated that in his discussions with RTC he made it \\\"absolutely clear\\\" that, for safety and security reasons, if Rancho was to provide the easement it would require the right to control access over Phase I so there would never be public access from the complex onto Bilby Road; he stated RTC understood and accepted that limitation.\\n\\u00b6 19 Additionally, Case and Breen declared that when Del Moral acquired Phase II it understood and agreed access to Bilby Road was limited to emergency vehicles. They also stated Del Moral had constructed the security gate to limit access to emergency vehicles only, and the gate had been locked as soon as it was constructed and had remained locked. Further, they averred that when Phase II was constructed, although Del Moral had moved several roads, the map to the easement had not been changed; Del Moral had not built a road on the northern portion of the easement, instead constructing a maintenance building there. Rancho and Del Moral also had agreed public access to the complex would be through a security gate on Campbell Avenue built by Del Moral. Last, Case declared that when Del Moral refinanced Phase II he told a bank representative the gate was locked permanently, used only for emergency vehicles, and gave the representative a copy of the residential lease then in effect, which stated the gate was considered to be access for emergency vehicles.\\n\\u00b6 20 The parol evidence rule renders inadmissible the evidence Rancho offers because it is offered solely to vary or contradict the plain meaning of the easement, not to interpret one of its terms. See Taylor, 175 Ariz. at 152, 854 P.2d at 1138. The proffered evidence merely seeks to supplant the terms \\\"pedestrian\\\" and \\\"passenger vehicle\\\" with the term \\\"emergency vehicle.\\\" Although we first must consider Case and Breen's affidavits and their \\\"allegations made . as to the appropriate interpretation of the [easement] in light of the extrinsic evidence\\\" offered, we also must consider the language of the wilting to determine if it is reasonably susceptible to the suggested interpretation. Long v. City of Glendale, 208 Ariz. 319, \\u00b6 28, 93 P.3d 519, 528 (App.2004). The only argument Rancho offers indicating the easement's language suggests it is reasonably susceptible to another meaning is the provision of the easement stating it is for \\\"limited ingress and egress.\\\" However, the limitation referred to is clear \\u2014 the easement is limited by \\\"the terms, provisions, conditions, and covenants contained in th[e] agreement,\\\" none of which limit the easement to emergency vehicle use only. And Rancho has offered no explana tion why a reciprocal easement that permitted access to emergency vehicles only would have been either necessary or desired by RTC.\\n\\u00b621 Here, no interpretation of the easement is required because the meaning of its terms is clear. Even in light of the evidence Rancho proffered, the contract language is not \\\"reasonably susceptible\\\" to the interpretation it offered. Thus the evidence cannot be admitted to determine the parties' intended meaning. See id. \\u00b6 29. Moreover, \\\"one cannot claim that one is 'interpreting' a written clause with extrinsic evidence if the resulting 'interpretation' unavoidably changes the meaning of the writing.\\\" Id. \\u00b6 34. And although Rancho contends the trial court \\\"could not resist the temptation to interpret the language in the Easement according to how it understood the words,\\\" the words \\\"pedestrian\\\" and \\\"passenger vehicle\\\" require no interpretation. \\\"At what point [the court] stops 'listening to testimony that white is black and that a dollar is fifty cents is a matter for sound judicial discretion and common sense.' \\\" Taylor, 175 Ariz. at 153, 854 P.2d at 1139, quoting 6 Arthur L. Corbin, Corbin on Contracts \\u00a7 579, at 127 (interim ed.2002). Therefore, the court did not err in refusing to admit the proffered extrinsic evidence and in concluding the parties \\\"would be bound by the written agreement.\\\"\\nAbandonment, Waiver, Estoppel\\n\\u00b622 Rancho also argues the trial court erred in determining there was a strong likelihood IB would succeed on the merits because the court failed to consider \\\"substantial evidence of abandonment, waiver and estoppel.\\\" Although the court's ruling did not address those arguments explicitly, it stated it had \\\"considered everything,\\\" including the arguments made by counsel, and we will uphold the court's ruling if any construction of the evidence supports it. See Spaulding v. Pouliot, 218 Ariz. 196, \\u00b6 8, 181 P.3d 243, 246 (App.2008).\\n\\u00b6 23 \\\"The law is well-settled that the owner of an easement created by express grant is under no duty to make use of the easement in order to retain his entitlement.\\\" Squaw Peak Cmty. Covenant Church of Phoenix v. Anozira Dev., Inc., 149 Ariz. 409, 414, 719 P.2d 295, 300 (App.1986). Abandonment of an easement requires the intent to abandon coupled with an act or a failure to act that carries out the intent to abandon. City of Tucson v. Koerber, 82 Ariz. 347, 356, 313 P.2d 411, 418 (1957). And waiver is the \\\"voluntary and intentional relinquishment of a known right\\\" or conduct warranting an inference that such a right has been relinquished. Id. Abandonment and waiver both \\\"require the concurrence of act and intent.\\\" Id. \\\"Estoppel arises where one with knowledge of the facts has acted in a particular manner so that he ought not to be allowed to assert a position inconsistent with his former acts to the prejudice of others who have relied thereon.\\\" Id.\\n\\u00b6 24 Rancho notes Del Moral constructed the gate prohibiting public access to Bilby Road. Additionally, the gate was locked as soon as it was constructed and remained locked. And Del Moi'al constructed a maintenance building on the original easement and funded the Campbell Avenue security gate providing the only public access to the complex. Rancho alleges it relied on those actions of Del Moral because it would not have allowed changes to the development plan or the construction of the maintenance building, and would not have entered into a shared use agreement with Del Moral had Del Moral not agreed the gate would remain locked permanently. At the hearing, Ran-cho's counsel clarified that its allegation was that the easement had been abandoned only as to public access from Bilby Road.\\n\\u00b6 25 On the record before us, the evidence adequately supports the trial court's ruling. The court could have found IB's predecessor did not intend to abandon or waive its rights permanently to public access over its easement when it installed a gate that could be unlocked and opened. See Restatement (Third) of Property (Servitudes) \\u00a7 7.4 cmts. a, c (2000) (\\\"abandonment is difficult to establish\\\" and, if servitude benefit substantially enhances dominant estate's value, abandonment \\\"should never be found in the absence of unequivocal evidence that the beneficiary intended to extinguish it permanently\\\"); see also Squaw Peak, 149 Ariz. at 414, 719 P.2d at 300 (gate does not restrict passage in manner of permanent structure because it \\\"may be opened or closed\\\"). And subsequent non-use is not enough for a finding of abandonment or waiver. See Squaw Peak, 149 Ariz. at 414, 719 P.2d at 300. Similarly, we are not persuaded that IB's predecessors \\\"acted in a particular manner so that [IB] ought not to be allowed to assert a position inconsistent with . former acts to the prejudice of others who have relied thereon.\\\" Koerber, 82 Ariz. at 356, 313 P.2d at 418. Detrimental reliance requires more than Rancho's assertions that it would have done some things differently had it known Del Moral or its successors would attempt to enforce the easement as written. See La-Bombard v. Samaritan Health Sys., 195 Ariz. 543, \\u00b6 12, 991 P.2d 246, 250 (App.1998) (claim for estoppel requires detrimental reliance which requires showing of injury or prejudice because action taken in reliance). Therefore, because Rancho has not established the easement was terminated or modified, and because the extrinsic evidence it offers is inadmissible under the parol evidence rule, the trial court did not err in determining IB had a strong likelihood of success on the merits of its claim.\\nDisposition\\n\\u00b6 26 For the foregoing reasons, we affirm.\\nCONCURRING: JOSEPH W. HOWARD, Chief Judge and PETER J. ECKERSTROM, Presiding Judge.\\n. The easement states:\\nGrantor hereby grants and conveys to Grantee and its successors and assigns a[] pedestrian and passenger vehicle easement over entrance-ways and vehicle driveways located on Phase I . as they may exist from time to time, for the purposes of providing pedestrian ingress and egress and passenger vehicle ingress and egress to and from Phase II \\u2014 III, all as hereinafter limited.\\n. The easement was amended in 1993 and 1995 in ways not material to our analysis.\\n. Rancho cites out-of-state cases to argue purely economic injuries are inappropriate for injunc-tive relief. However, it cites no binding authority in support of its position, and we find none.\\n. Rancho also notes IB's motion for a temporary restraining order did not allege IB was unable to quantify its damages. To the extent Rancho argues IB waived this argument below or on appeal by not raising it properly in the trial court, we disagree; IB raised the issue in its reply below, the parties addressed it at the hearing without objection, and the court had an opportunity to address the issue on its merits. See Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, \\u00b6 17, 158 P.3d 232, 238-39 (App.2007); see also Ariz. R. Civ. P. 15(b) (issues tried by implied consent of parties treated as raised in pleadings).\\n' Rancho contends IB has not suffered any injury from lack of access to Bilby Road because it successfully has attracted potential purchasers, and any occupancy problems were caused by poor management, not by the Bilby gate. But it fails to explain how either of these facts, even were they established as true, would eliminate any additional harm IB has suffered or will suffer as a result of its lack of access to Bilby Road.\\n. Rancho also challenges the testimony of other witnesses regarding the effect of the gate on the value of the property. Because we already have determined sufficient evidence supports the trial court's finding of irreparable harm, we do not reach this argument.\\n. Rancho also alleges Wadlund previously stated in an email that Campbell Avenue was preferable to Bilby Road for leasing purposes. However, the email's next sentence makes clear Wadlund was discussing preferred access for the entire complex \\u2014 not only for Phase II. He states, \\\"That being said, one option to a new buyer is to divorce themselves from phases [I] and [III] and run a stand alone property.\\\"\\n. Rancho also challenges the trial court's statement, made at the hearing on the motion to dissolve, that Phase II is unique property. We do not address this issue because the court's determination that IB would suffer irreparable harm is supported by other evidence.\"}"
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+"{\"id\": \"587004\", \"name\": \"STATE of Arizona, Appellee, v. William E. (Earl) BUTRICK, Appellant\", \"name_abbreviation\": \"State v. Butrick\", \"decision_date\": \"1976-12-28\", \"docket_number\": \"No. 3653\", \"first_page\": \"563\", \"last_page\": \"567\", \"citations\": \"113 Ariz. 563\", \"volume\": \"113\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T19:57:55.624723+00:00\", \"provenance\": \"CAP\", \"judges\": \"CAMERON, C. J., STRUCKMEYER, V. C. J., and HOLOHAN and GORDON, JJ., concurring.\", \"parties\": \"STATE of Arizona, Appellee, v. William E. (Earl) BUTRICK, Appellant.\", \"head_matter\": \"558 P.2d 908\\nSTATE of Arizona, Appellee, v. William E. (Earl) BUTRICK, Appellant.\\nNo. 3653.\\nSupreme Court of Arizona, En Banc.\\nDec. 28, 1976.\\nBruce E. Babbitt, Atty. Gen., by William J. Schafer, III, and Lynn Hamilton, Asst. Attys. Gen., Phoenix, for appellee.\\nRoss P. Lee, Maricopa County Public Defender, by Terry J. Adams, Deputy Public Defender, Phoenix, for appellant.\", \"word_count\": \"2111\", \"char_count\": \"12080\", \"text\": \"HAYS, Justice.\\nAppellant William E. Butrick was charged by information with aggravated assault while armed with a gun or deadly weapon in violation of A.R.S. \\u00a7 13-241 and 13-245(A) and (C). After trial without a jury, the court convicted appellant of exhibiting a deadly weapon other than in self-defense, a violation of A.R.S. \\u00a7 13-916, suspended imposition of the sentence and placed him on five years probation. From this conviction and sentence Butrick appeals. We have jurisdiction pursuant to 17A A.R.S. Supreme Court Rules, rule 47(e)(5).\\nThe facts out of which this conviction and sentence arose were in great dispute at trial, but apparently began when the Phoenix police were called to the scene of a domestic quarrel at appellant's home. There is no question that appellant had in his possession a machete knife sometime while the police were present in his home. The testimony of defense and state witnesses, however, differed considerably as to how appellant handled that knife and himself during the incident. The trial judge apparently felt there was reasonable doubt with regard to the elements of aggravated assault and, instead, convicted the appellant of what he believed was a lesser included offense, exhibiting a deadly weapon other than in self-defense.\\nA motion to suppress certain evidence was made by defense and a hearing thereon was scheduled for the morning of the trial. Many of the defense and state witnesses testified at that hearing. After the hearing was completed the record reveals an off-the-record discussion, a recess at 3:15 p. m., and a recommencement of the proceedings at 3:20 p. m.\\nAt this point, the following exchange took place:\\n\\\"PROSECUTOR: This is Officer Boynton. I take it we're at the point where we're starting the trial. This is my first witness.\\nCall Officer Boynton to the stand please.\\\"\\nThe officer took the stand, a few preliminary questions were asked, then the following occurred:\\n\\\"THE COURT: Claire brought to my attention the fact that we don't have a waiver of a trial by jury form.\\n\\\"DEFENSE COUNSEL: Okay that's, I believe, correct, your Honor. Perhaps we should\\u2014\\n\\\"THE CLERK: Do you want a form?\\n\\\"DEFENSE COUNSEL: Yeah.\\n\\\"PROSECUTOR: Judge, do you want me to go ahead or wait?\\n\\\"THE COURT: You can go ahead, I guess.\\\"\\nThe prosecutor did, then, proceed with the questioning of his witness.\\nThis is the only mention, before or during the trial, of a waiver of jury by the appellant. The hearing and trial were completed in one day, October 16, 1975. On October 20, 1975, the parties returned to the court for closing arguments. At this time, the following exchange took place:\\n\\\"THE COURT: . Mr. Butrick, you were here one day last week and had a trial to the Court, as I recall. At the time the trial began, you understood there was no jury involved; is that correct?\\n\\\"THE DEFENDANT: Yes, sir.\\n\\\"THE COURT: And you had never seen a jury sit in; is that right?\\n\\\"THE DEFENDANT: Right.\\n\\\"THE COURT: So you knew you were being tried without a jury, did you?\\n\\\"THE DEFENDANT: Yes, sir.\\n\\\"THE COURT: And that was what you wanted?\\n\\\"THE DEFENDANT: Yes, sir.\\n\\\"THE COURT: And you agreed to that; is that correct?\\n\\\"THE DEFENDANT: Yes, sir.\\n\\\"THE COURT: Had anybody tried to force you to give up your right to a trial by jury?\\n\\\"THE DEFENDANT: No, sir.\\n\\\"THE COURT: Had anybody made promises to you of anything at all to get you to give your right to trial by jury up?\\n\\\"THE DEFENDANT: No, sir.\\n\\\"THE COURT: A thing that should have been done but wasn't done, and that's my fault as much as anybody else's. I guess several of us share in the fault, but at least a share of it is mine. I should have gotten you to sign this Waiver of a Trial by Jury. Did you sign it? I guess you did, didn't you?\\n\\\"THE DEFENDANT: Yeah. I signed it; that's my signature.\\n\\\"THE COURT: And that was on 10/16/75. Apparently the only thing that wasn't done is I didn't accept it and approve it.\\n\\\"DEFENSE COUNSEL: That's right.\\n\\\"THE COURT: At this time I approve it and find it knowingly, voluntarily and intelligently made.\\\"\\nThe waiver form was filed, and a minute order issued on October 20, 1975 purported to make this entire portion of the record a \\\"nunc pro tunc\\\" entry.\\nAppellant raises two issues on appeal:\\n1. Was 17 A.R.S. Rules of Criminal Procedure, rule 18.1(b) violated by the approval of the waiver after trial, and the manner in which it was taken?\\n2. Did the trial court err in convicting appellant of an offense which is not a lesser included offense of A.R.S. \\u00a7 13-245?\\nEX POST FACTO APPROVAL OF WAIVER\\nThe right to a jury trial is a fundamental right secured to all persons accused of a crime by the Sixth Amendment of the United States Constitution and, in Arizona, by Article 2, \\u00a7 23 and 24 of the Arizona Constitution. It is a right that may be waived, however, when the waiver is volun tarily and intelligently made by the accused. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930); State v. Durham, 111 Ariz. 19, 523 P.2d 47 (1974).\\nWaiver of this right in Arizona is governed by 17 A.R.S. Rules of Criminal Procedure, rule 18.1(b), which says,\\n\\\"The defendant may waive his right to trial by jury with consent of the prosecution and the court.\\n(1) Voluntariness. Before accepting a waiver the court shall address the defendant personally, advise him of his right to a jury trial and ascertain that the waiver is knowing, voluntary and intelligent.\\n(2) Form of waiver. A waiver . under this rule shall be made in writing or in open court on the record.\\nIn State v. Crowley, 111 Ariz. 308, 528 P.2d 834 (1974), this court held that a trial record must affirmatively show a defendant knows he is giving up his or her right to a jury trial when it is waived, and a signed document with a simple recital that his or her rights have been discussed with defense counsel is insufficient to meet the requirement of an affirmative showing.\\nIn Crowley, supra, however, we were concerned not with just a waiver of a jury, but with the waiver of a jury and a submission of the entire question of guilt or innocence to the court based only on the preliminary hearing transcript. There we were talking about the defendant doing something tantamount to pleading guilty, and, in view thereof, determined that the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), should apply to the situation.\\nIn the case before us, we have several factual differences from Crowley, supra. To begin with, the waiver of the jury is not tantamount to a plea of guilty. That is abundantly clear from the fact that a trial with the taking of testimony was had.\\nSecondly, in Crowley, supra, the form waiver signed simply recited that the defendant had \\\"fully discussed all legal questions and constitutional rights with his attorney.\\\" In the instant case, the waiver form signed by the appellant on the day the trial began, advised him of his right to a jury trial and explained what the right meant and what a jury was. It was not just a recital that the defendant discussed and understood his right to a jury trial; it laid out his right, what is meant and that its waiver meant a judge would decide his guilt or innocence.\\nAlso, in Crowley, supra, even though it was determined that the proper procedure had not been followed for determining whether the waivers were knowing, voluntary and intelligent, we remanded the case for an ex post facto determination thereof. In effect, we approved there the procedure followed in the case before us: a determination, after the rights were given up, of whether they were forsaken in accordance with due process of law.\\nFurther, our rule 18.1(b)(2) specifically says the waiver may be made in writing or in open court. We do wish to clarify, at this juncture, any apparent ambiguity between our rule 18.1(b)(1) and 18.1(b)(2). Although the defendant's waiver may be either written or oral, pursuant to 18.-1(b)(2), the court must always address the defendant personally, pursuant to 18.1(b)(1) to ascertain \\\"that the waiver is knowing, voluntary and intelligent.\\\"\\nWhether there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case. Adams v. United States, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942); State v. Smith, 112 Ariz. 321, 541 P.2d 918 (1975). We find that upon the unique circumstances of this case, the waiver of the right to a trial by jury was knowing, voluntary and intelligent and although the trial judge fulfilled his obligation under rule 18.1(b)(1) somewhat belated ly, he did fulfill it. We also find that the manner in which he did it was sufficient. It is obvious from appellant's answers to the court's inquiry, quoted herein, that he knowingly, voluntarily and intelligently waived a jury, with the assistance of counsel.\\nERRONEOUS CONVICTION\\nAppellant was informed against for a violation of A.R.S. \\u00a7 13-241 and \\u00a7 13-245(A)(7) and (C). He was convicted of a violation of A.R.S. \\u00a7 13-916.\\nThe test in Arizona for determining whether one offense is a lesser included of a greater offense is whether the greater offense is one that cannot be committed without necessarily committing the lesser. State v. Westbrook, 79 Ariz. 116, 285 P.2d 161 (1954); State v. Woody, 108 Ariz. 284, 496 P.2d 584 (1972).\\nThe elements of aggravated assault under \\u00a7 13-245 combine the elements of that statute plus those of \\u00a7 13-241(A). They are, in connection with the charges herein, (1) an unlawful attempt, (2) coupled with present ability, (3) to commit a physical injury on another person, (4) whom the offender knows, or has reason to know, is a peace officer [\\u00a7 13-245(A)(7)] or (1) an unlawful attempt, (2) coupled with present ability, (3) to commit a physical injury on another person, (4) armed with a gun or other deadly weapon [\\u00a7 13 \\u2014 245(C)].\\nThe elements of \\u00a7 13-916 are, (1) drawing or exhibiting a deadly weapon in a threatening manner, (2) in the presence of another, (3) not in self-defense.\\nObviously the element of drawing or exhibiting a deadly weapon is not an element of \\u00a7 13-245(A)(7). It is also not an element of \\u00a7 13-245(C), in view of our opinion in State v. Herkshan, 105 Ariz. 394, 465 P.2d 587 (1970), wherein we held that the weapon need not be actually revealed during the assault in order to obtain a conviction under this section of our criminal laws.\\nIt is possible, therefore, to commit the offense of aggravated assault under \\u00a7 13-245 without committing the offense of exhibiting a deadly weapon under \\u00a7 13-916. Consequently, \\u00a7 13-916 is not a lesser included offense of \\u00a7 13-245.\\nNot having been given the requisite notice required by due process to defend against the charge for which he was convicted, appellant's conviction cannot stand. For this reason we must reverse.\\nSince the failure of the trier of fact to find appellant guilty of the original charge amounts to an acquittal thereof, re-indictment on that charge or any lesser included offense thereof is constitutionally prohibited by the double jeopardy it would impose. We see no constitutional infirmity, however, in a proper indictment or information against appellant for a violation of A.R.S. \\u00a7 13-916, giving him the requisite notice denied him in this proceeding.\\nWe therefore reverse the conviction without prejudice to the State if it wishes to file the appropriate charge.\\nCAMERON, C. J., STRUCKMEYER, V. C. J., and HOLOHAN and GORDON, JJ., concurring.\\nThe pertinent clause read: \\\"I understand that 1 am entitled to a trial by jury on these charges, and that the right to jury means the right to have my guilt or innocence decided by a group of ordinary people whose decision must be unanimous.\\\"\"}"
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+"{\"id\": \"615130\", \"name\": \"CITY OF BISBEE, a municipal corporation of the State of Arizona, Appellant, v. E. T. WILLIAMS, Treasurer of the State of Arizona, Appellee\", \"name_abbreviation\": \"City of Bisbee v. Williams\", \"decision_date\": \"1957-11-05\", \"docket_number\": \"No. 6364\", \"first_page\": \"141\", \"last_page\": \"148\", \"citations\": \"83 Ariz. 141\", \"volume\": \"83\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:36:22.743941+00:00\", \"provenance\": \"CAP\", \"judges\": \"UDALL, C. J., and PHELPS, WINDES and STRUCKMEYER, JJ., concur.\", \"parties\": \"CITY OF BISBEE, a municipal corporation of the State of Arizona, Appellant, v. E. T. WILLIAMS, Treasurer of the State of Arizona, Appellee.\", \"head_matter\": \"317 P.2d 567\\nCITY OF BISBEE, a municipal corporation of the State of Arizona, Appellant, v. E. T. WILLIAMS, Treasurer of the State of Arizona, Appellee.\\nNo. 6364.\\nSupreme Court of Arizona.\\nNov. 5, 1957.\\nJames F. McNulty, Jr., Bisbee, for appellant.\\nRobert Morrison, Atty. Gen., and James H. Green, Jr., First Asst. Atty. Gen., for appellee.\", \"word_count\": \"2727\", \"char_count\": \"16101\", \"text\": \"CHARLES P. ELMER, Superior Court Judge.\\nThis is an action for declaratory judgment brought by the City of Bisbee, a municipal corporation, through its mayor and common council, as plaintiffs, against the Arizona Tax Commission, the individual members comprising said Commission, and E. T. Williams in his capacity as the then treasurer of the State of Arizona, as defendants.\\nAn interpretation of five or at the most six words found in what is commonly referred to as the Arizona privilege sales tax law was sought by the city. A judgment sustaining the city's viewpoint would have the effect of materially increasing its share of such tax. When the action was commenced, section 73-1322, A.C.A.1939, as amended, 1952 Cum.Supp., was in effect, and the controversial phrase therein was \\\"the most recent United States census \\\". In the enactment of the Arizona Revised Statutes of 1956 the legislature, in section 42-1341, substituted the word \\\"federal\\\" for the words \\\"United States\\\" thus making the controversial phrase read \\\"the most recent federal census \\\".\\nThe city contends that the phrase quoted refers to any census taken under the auspices of the federal government, including but not limiting same to a federal decennial census, whereas the state treasurer contends that \\\"the most recent federal census\\\" means only a federal decennial census.\\nThe case was tried to the court without a jury on an agreed statement of facts. The parties stipulated that the city was polled for purposes of the 1950 federal decennial census when its population was at an extremely low ebb, the mine which is its principal industry being then shut down and the military installation at nearby Fort Huachuca then being almost totally inoperative; since the taking of the 1950 census the mine and smelter have reopened and Fort Huachuca activated as a sizeable military installation, resulting in an increase in population entirely out of proportion to what might be considered a normal growth. It was agreed that if a special census of Bisbee were taken during 1955, when the action was filed, it would show the population of the city had materi ally increased since the last decennial census; that the taking of a special census by the Bureau of the Census, United States Department of Commerce, was authorized by the federal statutes; that the city proposed to cause such a census to be taken by that bureau at the city's expense, and, finally, that the Arizona tax commission and the state treasurer fully comply with the provisions of the privilege sales tax law with respect to the payment of ten percent of such revenues to the various municipalities of the State of Arizona.\\nSection 73-1322, A.C.A.1939, as amended, 1952 Cum.Supp., contains the following pertinent provisions:\\n\\\"The state treasurer of the state of Arizona shall pay ten percent (10%) of the privilege tax collected under the Excise Revenue Act of 1935, or any amendment or modification thereof to the various municipalities of the state of Arizona in proportion to their population, as shown by the most recent United, States census, to be used by said municipalities for any municipal purpose.\\\" (Emphasis supplied.)\\nThis provision appears in the Arizona Revised Statutes of 1956 as a portion of section 42-1341 and is the same in substance.\\nAs hereinabove indicated, it was and is the contention of the city that the census referred to in the law meant any federal census, either the decennial or the special, authorized by 13 U.S.C.A. \\u00a7 8 (formerly section 218 this title) ; that the current census which the city proposed to have made thereunder is the one that should upon certification to him be used by the state treasurer in his payment to the city of its proportionate share of the funds available under said privilege sales tax law. The state treasurer, on the other hand, argues that only the most recent United States decennial census may be used as the basis for the apportionment among the several municipalities of the state; that if it were permissible to take such censuses piecemeal it is apparent that, as a matter of self-interest and self-protection, each and every municipality in the state would be required to cause a federal count of its inhabitants to be made each time another municipality chose to have one made in order to retain its just share of the tax.\\nThe trial court carefully considered the stipulated facts in this case and through presentation of the applicable law, as submitted by the parties, and in a very well-reasoned memorandum opinion concluded the real meaning and purpose of the law is and was that on a given date and time a federal census should be taken of all the participating municipalities and on that basis a proportionate distribution of the funds available should be made. Its judgment therefore was in favor of the state treasurer's contention and against that of the city, and, after the overruling of motion for new trial, this appeal was taken.\\nThere is hut one assignment of error and that is that the trial court misinterpreted the law and that its judgment, therefore, is contrary to law. We agree.\\nWhile the desirability of the utilization by the state treasurer of a fixed base, such as the most recent decennial census, in his allocations to the several municipalities of the state of their proportion of this tax is apparent, we cannot substitute our judgment for that of the people who adopted this initiated measure and say as a matter of law that the \\\"most recent\\\" census must mean the \\\"most recent decennial\\\" census. Had it been intended that only the decennial census be utilized, it would have been very easy for the framers of the legislation to have said so. Nor can we see that there is any distinction to be drawn between the use of the words \\\"United States\\\" as found in the 1952 code supplement and the word \\\"federal\\\" substituted therefor in the 1956 revised statutes. We hold that the expressions \\\"United States census\\\" and \\\"federal census\\\" as here used are synonymous.\\nSo far as uniformity in apportionment is concerned, the city has incorporated in its closing brief much data as to population changes in a number of Arizona municipalities, and other evidence of departures from the 1950 United States decennial census which it says have been made by the-state treasurer .from year to year for the the past six years, which have from time to time changed the percentage of the whole to which the several cities are entitled. Such, for example, as an increase in the population of Phoenix from 106,818 in 1950 to 142,972 in 1956, brought about by annexations, with an increase in its share of the sales tax from 34.738% of the whole in 1951 to 37.605% thereof in 1956. But as these statistics were not included in the agreed statement of facts, we consider only that portion of the alleged facts which show that since the 1950 census three new cities have been incorporated in Arizona which the state treasurer has recognized as being entitled to participate in distribution of the fund, it having been stipulated, as heretofore stated, that he had fully observed the requirements of the law in so doing. We hold the court might properly take judicial notice of the incorporation of new cities but it could not consider the additional factors set up in the brief. Of course, it becomes obvious that when additional cities are permitted to participate in the fund on the basis of their population as shown by the 1950 or any other federal census, the percentage of the participation of all other cities in the fund is necessarily affected thereby.\\nThe word \\\"census\\\" comes from the Latin verb \\\"censo\\\", meaning \\\"to count or to reckon\\\". Most if not all of the states have statutes classifying cities and towns on the basis of population; providing quotas for the issuance of licenses; creation of judicial districts, and the like, based on population. Population is usually determined as the result of a census and it is true in the United States when one speaks of \\\"the census\\\" the term has come to be understood as meaning the United States decennial census.\\nHistorically, in the Roman language census meant \\\"a numbering of the people\\\". Webster says that census is \\\"an official enumeration of the population of a country, or of a city or other administrative district.\\\" Judicially it has been defined as \\\" a finding of the population and not an estimate .\\\" State ex rel. Reynolds v. Jost, 265 Mo. 51, 175 S.W. 591, 597.\\nIn the case of State ex rel. Morrison v. Nabours, 79 Ariz. 240, 286 P.2d 752, 754, we were called upon to determine whether or not the legislature had the power to enact legislation arbitrarily fixing the population of a county for the purpose of authorizing additional judgeships when the constitutional provision whereunder same was adopted called for \\\"a census enumeration\\\". We said:\\n\\\"The legislature can only authorize additional judges in the event a county has the requisite population measured by a census enumeration. This necessarily prohibits the legislature from making such determination by any : other method.\\\"\\nThe case of State ex rel. Morrison v. Thomas, 80 Ariz. 327, 297 P.2d 624, 628, involved an interpretation of our liquor licensing statutes, which set up a quota system for the issuance of certain types of licenses, based on population, and provides :\\n\\\"The population of a county shall be deemed to be its population (as) last determined by the bureau of the census, less the number of Indian wards of the United States residing therein, as shown by such census.\\\"\\nThis court in that case held that an enumeration such as there presented did not meet the requirements of our statute but did say that \\\"nothing in this opinion should be construed to prohibit the use of figures resulting from the taking of a census by the Bureau of the Census at times other than every ten years.\\\"\\nThe decision of the Ohio Supreme Court in State ex rel. Brubaker v. Brown, 163 Ohio St. 241, 126 N.E.2d 439, 441, raised an issue very similar to the one presented here. It appears therefrom that the Village of Kettering, Ohio, caused a special census of its inhabitants to be taken pursuant to the federal law hereinbefore cited. The purpose thereof was to determine whether or not the village had, in truth, a population greater than 5,000. That fact, if established, would have advanced the community from the village class to the status of a city and municipal corporation. The census revealed a population in excess of 5,000 and the village requested the Secretary of State to issue a proclamation, as required by law, naming the village a municipal corporation. The secretary refused to do this and a mandamus proceeding was brought against him. The court stated the issue as follows:\\n\\\"The question to be decided is whether an enumeration of the inhabitants of a village at a particular time, made by the Bureau of the Census of the United States Department of Commerce at the request of that village and pursuant to a contract between that village and the Department of Commerce, is included within the meaning of the words, 'any federal census/ \\u00bb\\nThe court in discussing the federal statute, being the identical law relied upon by the city in the case now before us, held:\\n\\\"Since this 'census' was taken by the federal government pursuant to federal laws authorizing its taking, it was obviously a 'federal census.' \\\"\\nThe court cited In re Cleveland's Claim, 72 Okl. 279, 180 P. 852, 855, and City of Compton v. Adams, 33 Cal.2d 596, 203 P.2d 745, 746.\\nPerhaps the most pertinent decision found to support our views in this case is that of City of Compton v. Adams, supra. That case concerns a special census taken in the City of Compton at its request and under the supervision of the United States Bureau of the Census. The census proved the city had a population in excess of 40,000, which fact in turn permitted the city to have established within it a municipal court. The court there said, \\\"section 11 of article VI of the Constitution provides that such a court may be established in a chartered city 'containing a population of more than forty thousand inhabitants, as ascertained by the last preceding census taken under the authority of the Congress of the United States'(Emphasis supplied.)\\nAn ordinance was drawn and passed by the city council of the City of Compton to call for a special election on the subject of the municipal court. The treasurer of the City of Compton refused to pay costs for publishing the said ordinance. This case then came to court when the City of Compton and the local newspaper brought an action to compel the city treasurer to pay the costs of publishing the ordinance. The court stated the entire issue in a single sentence :\\n\\\"The question presented is whether the 1948 census is 'the last preceding census taken under the authority of the Congress of the United States' within the meaning of section 11 of article VI.\\\"\\nIn determining the issue the court said:\\n\\\"The requirement that the population of a City be ascertained by reference to a United States census was apparently adopted so that it could be definitely established, by reference to an official report, whether a city could establish a municipal court, and the 1948 census fulfills this purpose, since it was officially taken and the result was officially announced and certified by the Director of the Bureau.\\n\\\"Section 11 of article VI does not require that the census taken under authority of Congress be the decennial census '\\nThe state treasurer has cited several cases and advanced a number of propositions of law in support of his contentions and it must be said there is some force to his arguments. However, a careful reading of such decisions and legal propositions convinces us they are either distinguishable or have no application here. For example, from the case of Sproul v. State ex rel. Smith, 153 Fla. 892, 16 So.2d 109, 110, it appears that a special census had been taken of two counties to ascertain the population for the purpose of determining whether that judicial circuit was entitled to an additional judge. After determining that the population was greater than that established at the last United States decennial census, an attempt was made to increase the tax on liquor licenses in accordance with the increased population. Florida law provides for a decennial state census and the liquor license tax was dependent upon the population \\\"according to the latest state or federal census.\\\" F.S.A. \\u00a7 561.34. The Florida court said that the legislature \\\"had in mind the regular federal census which is taken every ten years.\\\" But it then went on to decide:\\n\\\"It is conceded by counsel for both parties to this case that the two special acts adopted at the 1943 session of the legislature for the purpose of determining the population of Palm Beach and Broward counties and authorizing the appointment of an additional circuit judge were entirely sufficient to accomplish their purpose. But neither one of these special statutes had anything to do with taxation and the census taken in pursuance of one of them was not the kind of census which the legislature had in mind when it adopted the Beverage Act of 1935;\\nThe judgment of the lower court is reversed with directions to enter judgment for the plaintiff, City of Bisbee, in accordance with, the views expressed herein.\\nJudgment reversed with directions.\\nUDALL, C. J., and PHELPS, WINDES and STRUCKMEYER, JJ., concur.\\nJOHNSON, J., did not participate in the determination of this matter.\\nNote. The late Justice Arthur T. La Prade was ill when this case was orally argued, and Honorable Charles P. Elmer, Judge of the Superior Court of Mohave County, was called to sit in his stead.\"}"
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diff --git a/arizona/623725.json b/arizona/623725.json
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+"{\"id\": \"623725\", \"name\": \"R. R. DAVIDSON, as Zoning Inspector for the County of Maricopa, Arizona, a Body Politic, Appellant, v. ALL STATE MATERIALS CO., Inc., and J. M. Krumtum dba Construction Equipment Rentals and Materials of Phoenix, also known as Pacific Sand and Gravel Co., Appellees\", \"name_abbreviation\": \"Davidson v. All State Materials Co.\", \"decision_date\": \"1966-11-03\", \"docket_number\": \"No. 8159\", \"first_page\": \"375\", \"last_page\": \"376\", \"citations\": \"101 Ariz. 375\", \"volume\": \"101\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T19:09:08.900111+00:00\", \"provenance\": \"CAP\", \"judges\": \"BERNSTEIN, V. C. J, and McFARLAND, J., concur.\", \"parties\": \"R. R. DAVIDSON, as Zoning Inspector for the County of Maricopa, Arizona, a Body Politic, Appellant, v. ALL STATE MATERIALS CO., Inc., and J. M. Krumtum dba Construction Equipment Rentals and Materials of Phoenix, also known as Pacific Sand and Gravel Co., Appellees.\", \"head_matter\": \"419 P.2d 732\\nR. R. DAVIDSON, as Zoning Inspector for the County of Maricopa, Arizona, a Body Politic, Appellant, v. ALL STATE MATERIALS CO., Inc., and J. M. Krumtum dba Construction Equipment Rentals and Materials of Phoenix, also known as Pacific Sand and Gravel Co., Appellees.\\nNo. 8159.\\nSupreme Court of Arizona. In Division.\\nNov. 3, 1966.\\nLaurence H. Whitlow, Phoenix, for appellant.\\nOtto H. Linsenmeyer, Richard J. Herbert, Phoenix, for appellees.\", \"word_count\": \"444\", \"char_count\": \"2716\", \"text\": \"STRUCKMEYER, Chief Justice.\\nThis action was commenced by R. R. Davidson as the Chief Zoning Inspector for Maricopa County, Arizona, against All State Materials Co., Inc., and another. Its purpose was to obtain an injunction to prevent All State from -operating an asphalt manufacturing plant in an area zoned and classified by county ordinance as \\\"Rural\\\". From an order dismissing Davidson's complaint, this appeal has been perfected.\\nA brief statement of the relevant facts makes it plain why this cause must be reversed.\\nDefendant All State did not answer Davidson's complaint on the merits but filed a motion to dismiss the complaint on the grounds that the zoning ordinance which was purportedly violated was a nullity for failure to comply with the enabling legislation, A.R.S. \\u00a7 11-801 through 11-830. Manifestly, defendant's motion was not within the stated grounds for a motion to dismiss. Rule 12(b), Rules of Civil Procedure, 16 A.R.S.\\nHowever, at the argument on the motion to dismiss, some statements were made by counsel which, had they been established by evidence in the case, might have some relevancy in the ultimate disposition of the action. We have said before that a \\\"court should not grant a motion to dismiss unless it appears certain that the plaintiff would be entitled to no relief under any state of facts which is susceptible of proof under the claim as stated.\\\" Long v. Arizona Portland Cement Co., 89 Ariz. 366, 362 P.2d 741. While a motion to dismiss may, under certain circumstances, be treated as a motion for a summary judgment, all parties must be given a reasonable opportunity to present facts pertinent to a determination under Rule 56, Rules of Civil Procedure, supra. See Rule 12(b), Rules of Civil Procedure, supra.\\nThere was before the trial court no fact, either by deposition, affidavit or by stipulation from which the court below could determine that the county ordinance in its adoption did not comply with the conditions required by the Arizona Legislature. Neither was the county ordinance before the court nor the purported comprehensive plan upon which, by statute, the ordinance must be based.\\nThe judgment is reversed with directions to reinstate the complaint.\\nBERNSTEIN, V. C. J, and McFARLAND, J., concur.\"}"
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diff --git a/arizona/626715.json b/arizona/626715.json
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+"{\"id\": \"626715\", \"name\": \"James P. ENGLISH, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, and Phelps Dodge Corporation, Defendant-Employer, Respondents\", \"name_abbreviation\": \"English v. Industrial Commission\", \"decision_date\": \"1954-10-04\", \"docket_number\": \"No. 5816\", \"first_page\": \"12\", \"last_page\": \"16\", \"citations\": \"78 Ariz. 12\", \"volume\": \"78\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:51:41.817953+00:00\", \"provenance\": \"CAP\", \"judges\": \"PHELPS, C. J., and STANFORD and LA PRADE, JJ., concur.\", \"parties\": \"James P. ENGLISH, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, and Phelps Dodge Corporation, Defendant-Employer, Respondents.\", \"head_matter\": \"274 P.2d 588\\nJames P. ENGLISH, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, and Phelps Dodge Corporation, Defendant-Employer, Respondents.\\nNo. 5816.\\nSupreme Court of Arizona.\\nOct. 4, 1954.\\nRichey & Herring, Tucson, for petitioner.\\nJohn R. Franks and Robert E. Yount, Phoenix, for respondent Industrial Commission.\\nEvans, Hull, Kitchel & Jenckes, Phoenix, for respondent Phelps Dodge Corp.\", \"word_count\": \"1723\", \"char_count\": \"10389\", \"text\": \"WINDES, Justice.\\nIn September, 1944, James P. English, petitioner herein, after physical examination including x-ray of the chest was employed as a welder by the Phelps Dodge Corporation, respondent-employer. There was evidence which would support the contention of petitioner that about April 6, 1945, while welding a patch on the \\\"acid roasters\\\", he was exposed to certain irritating gases resulting in his becoming ill, spitting and coughing blood and experiencing pains in his chest and joints. On April 14, 1945, after physical examination including chest X-ray he was advised he had not suffered an industrial accident and was ordered back to work and continued such employment until April 30, 1945, when he quit and went to work on a ranch. Thereafter, he was employed as a welder by another employer, but his health progressively deteriorated. He claimed to believe he was suffering from tuberculosis until April, 1950, at which time he learned to the contrary and in May, 1950, filed claim with the Industrial Commission of Arizona for compensation on the ground that the inhalation of gases in April, 1945, was the cause or contributing cause of his present disabled condition.\\nOriginally, the commission refused to accept jurisdiction because the application was not filed within one year from the date of injury as required by section 56-967, A.C. A. 1939. Following certiorari to the commission this court held that an employee was not bound by the one-year limitation when in the exercise of reasonable care he was unable to make a correct diagnosis of his injury and sent the matter back to the commission for determination whether on hearing he could free himself from such limitation. English v. Industrial Commission, 73 Ariz. 86, 237 P.2d 815. Such hearing was held, resulting in an award that the claim was unenforceable because not filed within one year as required by the aforesaid statute and that petitioner had not suffered any injury by accident arising out of and in the course of his employment. We issued certiorari.\\nAs grounds for setting the award aside, petitioner contends: (1) that English v. Industrial Commission, supra, is the law of the case, and that the commission ignored the facts as established by the testimony of petitioner and further ignored the opinions of doctors as to medical facts; (2) that petitioner was denied due process of law in that the commission did not have before it for consideration the report of the commission's referee prior to making the award; and (3) that the award is not supported by the evidence.\\nThe contention that the former case of English v. Industrial Commission is the law of the case is entirely without merit as even a cursory reading thereof will demonstrate. That the referee's report was not considered by the commission is refuted by the commission on rehearing wherein it finds that the report was before it at all times during its consideration of the cause. Petitioner presents nothing that would warrant this court in determining that the commission deliberately and falsely made this finding. We will not fuithei consider this matter.\\nThere is .thus left, for consideration only the question of whether the award is sup.ported by any substantial evidence and whether, the commission ignored established .'facts. .\\nIn January, 1952, the commission ordered petitioner to report to Tucson, Arizona, for examination and investigation, including hospitalization if necessary. Five doctors conducted the investigation which included a consideration of the alleged history of )the accident and examination of x-ray pictures. These doctors were of the view there was a causal connection between the inhalation of gas and petitioner's present disability. At the request of respondent-employer, the petitioner was personally examined by Dr. Melick. Drs. Kennedy and Watkins examined the following x-rays: the two heretofore mentioned as taken in 1944 and 1945, and three taken on March 3, 1950, January 11, 1952 and March 7, 1952, respectively. The latter two doctors rendered reports of their analysis thereof.\\nDr. Melick reports an examination of the patient and the history of the case as reflected in the Industrial Commission file and an examination of the x-rays and concludes his report as follows:\\n\\\"The. report by Dr. Kennedy indicates that there were definite abnor-. mal changes present in both the right . and. left- lungs of .this individual in September of 1944, some seven months .before the .patient was exposed to the-. yellow smoke. This. finding leaves a very definite doubt in my mind that he was in perfectly good health at the time he was exposed to the smoke. Such being the case, I believe this individual has exhibited the type of progressive pulmonary change that I would expect in an individual who is afflicted (as the x-ray of 1944 reveals) with a combination of emphysema and bronchiectasis. I furthermore do not feel that his exposure to the smoke, as related in the history, has any direct relationship with his present condition.I think his present condition is one of natural progression of his pulmonary disease, and any irritation he might have suffered as a result of exposure to smoke was of a temporary nature only.\\\"\\nLater, Dr. Melick filed another report which indicates that the x-ray of 1945 was not examined by him originally, and after stating another review of the voluminous, file and the x-rays, he concludes:\\n\\\"A review of the one additional x-ray that I did not see at my first examination of the file and x-rays on this man indicates to me that the film of April, 1945, is quite comparable to the film of September, 1944. I believe both of these chest films are abnormal. However, I think in order to complete the record this film of April 13,- 1945, should be read by Dr. Kennedy (who-gave the reading \\u2022 bn the x-rays primarily) so that we may have his interpretation for the record.\\\"\\nSubsequent to these reports Drs. Melick and Watkins were summoned to testify and were thoroughly examined by counsel. While counsel for petitioner argues extensively with Dr. Melick concerning the true facts, a hypothetical question assuming all possible facts in favor of petitioner was submitted requesting an answer as to whether in his opinion, based on such assumptions, there was a connection between the inhalation of gases and the patient's present disability. Dr. Melick's answer was as follows:\\n\\\"The only way to go about it is this:\\nIf we assume this man was perfectly well when he went to work; if we assume that he had got an injurious dose of noxious fumes and was immediately thereafter disabled and remained permanently disabled thereafter, then I say Yes, it was absolutely due to the fumes he inhaled, but the clinical evidence shows that he was not well before he went to work, the x-rays prove that. Secondly, the x-rays also prove that subsequent to the inhalation of thqse noxious fumes he did not give x-ray evidence as he should have given at the end of ten, days that would, indicate that he had inhaled noxious fumes and the subsequent course of this has indicated that it is one of progression, an emphysematous chest that I would expect from a man that had emphysema and had nothing to do with noxious fumes at all.\\\"\\nThe 'effect of Dr. Watkins' testimony was that whatever petitioner inhaled, any damage resulting therefrom would be temporary. The doctor said that before petitioner went to work he had emphysema which would eventually break him whether he inhaled irritants or not. He further testified:\\n\\\"Q. And if he did have an acute bronchitis and thereafter his physical condition immediately began to get worse until within a year he is in the condition approximately unable to work, approximately in the condition he is in now, it has been worse for a year or so, wouldn't the exposure to the gas and wouldn't the bronchitis have anything to do with it? A. It would have a temporary aggravation if he inhaled that irritant and if it irritated him, enough to give him a bronchitis but I can't see how that would disable him.\\\"\\n*\\n\\\"Q. And this exposure to gas and the resultant description of what happened to him, the symptoms he had, would that be enough to set in motion this incipient disability so that thereafter he would be disabled? A. I don't think the comparison of those film's would bear that out. \\\" *\\n\\\"Q. Suppose in the' year that followed this exposure to gas this man lost considerable weight, became a sick man, was unable to work at heavy work, what would you say then, if he was your patient and you were seeing him every week or so ? A. I would tell him that gas didn't have anything to do with his illness, that he had a progressive emphysema and forget the gas, if he was my private patient.\\n\\\"Q. You would? A. Yes.\\n\\\"Q. You would say the exposure to gas had nothing to do with it. A. Nothing more than a temporary symptom which would not have any permanent damaging eifect on him. \\\"\\nThe effect of the foregoing testimony is that the petitioner at the time of his employment was suffering from a lung ailment, to wit: emphysema, and his present disability is by reason of a progressive worsening of that condition, unaffected by the inhalation of gas in 1945. This renders legal the commission's finding there was no causal relation between the alleged inhalation of irritants and his present disability and supports the finding that petitioner had not suffered an injury by accident arising out of and in the course of his employment.\\nThis being the situation, whether the commission correctly decided that petitioner's claim was unenforceable because not filed within a year becomes of no consequence.\\nAward affirmed.\\nPHELPS, C. J., and STANFORD and LA PRADE, JJ., concur.\"}"
\ No newline at end of file
diff --git a/arizona/631102.json b/arizona/631102.json
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--- /dev/null
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+"{\"id\": \"631102\", \"name\": \"The STATE of Arizona, Appellee, v. Richard McFALL, Appellant\", \"name_abbreviation\": \"State v. McFall\", \"decision_date\": \"1968-04-17\", \"docket_number\": \"No. 9062-PR\", \"first_page\": \"234\", \"last_page\": \"239\", \"citations\": \"103 Ariz. 234\", \"volume\": \"103\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T23:31:04.840513+00:00\", \"provenance\": \"CAP\", \"judges\": \"McFARLAND, C. J., and BERNSTEIN and LOCKWOOD, JJ., concur.\", \"parties\": \"The STATE of Arizona, Appellee, v. Richard McFALL, Appellant.\", \"head_matter\": \"439 P.2d 805\\nThe STATE of Arizona, Appellee, v. Richard McFALL, Appellant.\\nNo. 9062-PR.\\nSupreme Court of Arizona, In Banc.\\nApril 17, 1968.\\nDarrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., Phoenix, William J. Schafer, III, Pima County Attorney, Tucson, for appellee.\\nClampitt, Videen & Berlat, Tucson, for appellant.\", \"word_count\": \"2617\", \"char_count\": \"15209\", \"text\": \"STRUCKMEYER, Justice.\\nRichard McFall was indicted, tried and convicted on five counts of obtaining narcotics by forgery of prescriptions, A.R.S. \\u00a7 36-1017, as amended by Laws of 1963, Ch. 59. The Court of Appeals affirmed the convictions. Opinion 5 Ariz.App. 539, 428 P.2d 1013 vacated.\\nDefendant McFall urges that his statements made to the arresting officers and a written statement in his handwriting, a duplicate of the forged prescriptions, were involuntary. He testified that he was a narcotic user and when arrested had in his possession some narcotic \\\"tablets and pills\\\". Then:\\n\\\"Q Did you feel that you needed to use some of the tablets ?\\n\\\"A Yes.\\n\\\"Q When you were arrested did you inform the officers of this fact?\\n\\\"A Yes. I requested some of the tablets.\\n\\\"Q Did you believe they were going to let you have some of them ?\\n\\\"A At the time that I asked for the tablets, we were \\u2014 the second time \\u2014 the first time I asked for them was when we were in the car, the second time I asked for my tablets was at the office in the police intelligence unit, and they told me that that matter would be discussed after we had taken care of the business at hand, going through the search and their asking questions of me.\\n\\\"Q Did this conversation take place before you filled out the prescription form?\\n\\\"A Yes. \\\"\\nPolice officers Jack Hitchcock and Robert J. Grant arrested the defendant and interrogated him at the police station. At the trial both responded in the negative to the leading question of whether there were any threats or promises of reward made. However, both testified on cross-examination that while they did not recall the defendant asking for drugs, it was possible that he did. Officer Grant, on cross-examination:\\n\\\"Q Did he ask permission to use any of the drugs in your presence down at the police station?\\n\\\"A Not that I recall.\\n\\\"Q Is it possible that he could have?\\n\\\"A It's possible.\\\"\\nOfficer Hitchcock, on cross-examination:\\n\\\"Q Now, at the police station did Mr. McFall request to use some pills or tablets ?\\n\\\"A I don't recall him requesting that, no, sir.\\n\\\"Q Could it have been possible?\\n\\\"A Possible, yes, sir.\\\"\\nAn answer by a witness that he does not remember whether an event occurred is not a denial that the event did not occur. Such an answer does not contradict the defendant's positive assertion that when he asked for the tablets the officers replied, \\\"that matter would be discussed after we had taken care of the business at hand The defendant's testimony is unimpeached, either by the officers' testimony or other testimony or circumstances in the case. It should have been accepted at face value.\\nA confession to be free and voluntary within the meaning of the Fifth Amendment to the Constitution of the United States must not have been obtained by \\\" 'any direct or implied promises, however slight.' \\\" Malloy v. Hogan, 378 U.S. 1 at p. 7, 84 S.Ct. 1489 at p. 1493, 12 L.Ed.2d 653. There was, in the instant case, a clear insinuation that defendant might be given drugs implied from the fact that he was led to believe his request would be considered later. It became the immediate duty of the officers to tell him, plainly, and unequivocally, that they would not give him any of the drugs taken from his possession at the time of arrest. Because they did not give him an unequivocal refusal, a forthright rejection, he was left with some hope of obtaining drugs if he cooperated. That defendant, as he testified, \\\"might be reading something, speaking truthfully, something into there that wasn't there,\\\" is not relevant to this determination. The hope of reward was there, induced by the equivocal answer.\\nMoreover, the fact that defendant was not actually suffering acute withdrawal symptoms is of little significance. An addict lives with the certain knowledge that the time must inevitably come when another \\\"shot\\\" or more drugs must be taken and, in dreadful anticipation of that time, must necessarily prepare for it. We are constrained to say that a trial judge can only meaningfully implement the decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, at the state level if he realistically and objectively appraises the possible compulsive circumstances surrounding the procurement of a confession. For the foregoing reason, it is our view that this cause must be reversed for a new .trial.\\nThere are other claims of error which we reject. Defendant asserts that his arrest was made without probable cause. A.R.S. \\u00a7 13-1403, as amended, provides:\\n\\\"A peace officer may, without a warrant, arrest a person:\\n*\\n\\\"3. When a felony has in fact been committed, and he has probable cause to believe that the person to be arrested has committed it.\\\"\\nPrior to the time of the defendant's apprehension on December 14, 1965, the arresting officer determined that narcotics had been obtained by forged prescriptions. Defendant had been identified by two druggists as the person who presented prescriptions at their stores, and the license number of defendant's car had been supplied by one of the druggists. On the strength of this information the officers had probable cause to believe that defendant had forged the prescriptions. The .arrest was legal. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; State v. Musgrove, 2 Ariz.App. 505, 410 P.2d 127. The search and seizure were clearly incidental to a lawful arrest, Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed. 2d 726; State v. Musgrove, supra; State v. Randall, 94 Ariz. 417, 385 P.2d 709, and defendant's motion to suppress was properly denied.\\nDefendant complains of the modification by the trial judge of two of his requested instructions by the addition of the words \\\"or deceive.\\\" For example, in defendant's requested instruction No. 8:\\n\\\"Thus in the crime of forgery, a necessary element is the existence in the mind of the perpetrator of the specific intent to defraud or deceive, and unless such intent so exists that crime is not committed.\\\" (Emphasis supplied.)\\nAs an abstract proposition, defendant is correct. The crime of forgery is defined in A.R.S. \\u00a7 13-421.\\n\\\"A. A person is guilty of forgery who, with intent to defraud:\\n\\\"1. Signs the name of another person, _\\u00bb\\nThe mens rea must include the intent to defraud. An intent to deceive is not alone sufficient to constitute the crime.\\nHowever, we do not think that under A.R.S. \\u00a7 36-1017, the offense here charged, the forgery referred to is the same statutory forgery defined in A.R.S. \\u00a7 13-421. A.R.S. \\u00a7 36-1017, as amended, provides:\\n\\\"A. No person shall obtain or attempt to obtain a narcotic drug, or procure or attempt to procure the administration of a narcotic drug by:\\njj\\u00ed 5\\u00a1S # \\u2021\\n\\\"2. The forgery or alteration of a prescription or of any written order.\\\"\\nAs stated, forgery in the criminal law and as a prohibited act requires an unlawful intent to defraud and the crime does not exist unless the act of forging is accompanied by the criminal intent. State v. Maxwell, 95 Ariz. 396, 391 P.2d 560. While Webster's Third International Dictionary defines forgery as the \\\"crime of falsely and with fraudulent intent making or altering a writing\\\" etc., it also defines forgery as \\\"something produced by forging, fabricating or counterfeiting.\\\" It is in this latter sense, we think, that the statute \\u00a7 36-1017 uses the word \\\"forgery.\\\"\\nExamination of the statute establishes that the act prohibited is obtaining narcotics by a forged or altered prescription. If an intent to defraud is to be implied, the statute would take on an unreasonable and absurd meaning; that is, the crime prohibited is either obtaining narcotics with the intent to defraud by forging a prescription or obtaining narcotics by forging a prescription with intent to defraud. Courts will not place an absurd and unreasonable construction on statutes. City of Phoenix v. Superior Court in and for Maricopa County, 101 Ariz. 265, 419 P.2d 49; State Board of Dispensing Opticians v. Schwab, 93 Ariz. 328, 380 P.2d 784; Local 266, Intern. Broth, of Elec. Workers, A. F. of L. v. Salt River Project Agri. Imp. and Power Dist., 78 Ariz. 30, 275 P.2d 393. By requiring an intent to defraud to accompany the act of fabricating or counterfeiting, the statute is deprived of all virility since manifestly no person can be pointed to who is defrauded or who the legislature believed could be defrauded.\\nWe conclude that the court erred in instructing the jury as to the elements of the crime of forgery because thereby it implied that the word \\\"forgery\\\" as used in \\u00a7 36-1017 required a \\\"specific intent to defraud.\\\" Since the court erred in this respect, it likewise erred in adding the words \\\"or deceive\\\" for neither is essential to complete the offense prohibited by the statute. However, the error is one which plainly imposed a greater burden of proof upon the State than is required, and, accordingly, we hold that it was not prejudicial and therefore not reversible error.\\nFinally, defendant complains that the introduction into evidence of State's exhibit No. 9, a narcotics kit, found in the possession of defendant was error as having no materiality to the issues of the crimes charged. Possession of the narcotic kit tends to connect the defendant with the offenses charged because of the high degree of probability that a narcotic user would be likely to forge narcotic prescriptions to obtain a supply.\\nInasmuch as this cause must be reversed for the reason previously set forth, we find it unnecessary to discuss the claimed failure to establish Pima County as the venue of the offense.\\nJudgment reversed.\\nMcFARLAND, C. J., and BERNSTEIN and LOCKWOOD, JJ., concur.\"}"
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diff --git a/arizona/631149.json b/arizona/631149.json
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+"{\"id\": \"631149\", \"name\": \"STATE of Arizona, Appellee, v. Simon A. RIVERA, Appellant\", \"name_abbreviation\": \"State v. Rivera\", \"decision_date\": \"1968-09-25\", \"docket_number\": \"No. 1735\", \"first_page\": \"458\", \"last_page\": \"461\", \"citations\": \"103 Ariz. 458\", \"volume\": \"103\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T23:31:04.840513+00:00\", \"provenance\": \"CAP\", \"judges\": \"McFARLAND, C. J., UDALL, V. C. J., and STRUCKMEYER and BERNSTEIN, JJ., concur.\", \"parties\": \"STATE of Arizona, Appellee, v. Simon A. RIVERA, Appellant.\", \"head_matter\": \"445 P.2d 434\\nSTATE of Arizona, Appellee, v. Simon A. RIVERA, Appellant.\\nNo. 1735.\\nSupreme Court of Arizona. In Bane.\\nSept. 25, 1968.\\nGary K. Nelson, Atty. Gen., Darrell F. Smith, Former Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.\\nClampitt, Videen & Berlat, by Garven W. Videen, Tucson, for appellant.\", \"word_count\": \"1264\", \"char_count\": \"7687\", \"text\": \"LOCKWOOD, Justice.\\nAppellant was charged with two counts of administering a narcotic to a minor \\u2014 a violation of A.R.S. \\u00a7 36-1002.03. Following a trial by jury in the Superior Court of Pima County, appellant was adjudged guilty on both counts and was sentenced to serve consecutively two terms of not less than eight years nor more than ten years in the Arizona State Prison. From the verdicts, sentences and the denial of his motion for a new trial, appellant brings this appeal. He makes numerous assignments of error, which will be set forth below. The evidence taken in a light most favorable to the State, is the following.\\nThe State charged in the information that Simon Arnold Rivera had administered heroin to Carlotta Vasquez Silvas, a minor, on two occasions, August 16 and August 18, 1965. At trial, Carlotta testified that on both occasions appellant and she had gone to a vacant house in the City of Tucson where appellant mixed a powder with water in a spoon, heated the mixture, placed cotton in the spoon, and used an eyedropper and needle to draw up the mixture, then gave both of them a \\\"fix\\\". She testified that following both such \\\"fixes\\\", her mouth was dry, her nose itched, and her eyes felt heavy. Carlotta further testified that she did not know what the powder was, but on one occasion appellant had called it \\\"carga\\\". A State's witness testified that the word carga was the Mexican slang word for heroin.\\nThe State introduced into evidence, for illustrative purposes only, a small folded paper containing heroin, and Carlotta was asked whether the paper she saw appellant use was like, or similar to the exhibit. Carlotta stated that she did not see the paper but the powder was similar in color to that contained in the paper. Also, a handkerchief allegedly used as a tourniquet by appellant on the two occasions was introduced into evidence. An expert witness for the State gave his opinion that, based upon the facts heretofore set forth, the appellant had administered heroin to Carlotta Silvas.\\nAppellant contends that the State has failed to prove the corpus delicti; namely, the State did not introduce into evidence the substance which had been administered to Carlotta, and therefore, the court committed reversible error by admitting into evidence, for illustrative purposes only, the paper containing heroin. It is further asserted that the paper of heroin and handkerchief were irrelevant and immaterial as evidence, and unduly inflammatory and prejudicial. Appellant contends that the jury was permitted to engage in the mere conjecture that he had administered heroin to Carlotta Silvas.\\nIn State v. Valenzuela, 101 Ariz. 230, 418 P.2d 386 (1966), the defendant, a minor, had been charged with five counts of administering a narcotic drug to a minor [A.R.S. \\u00a7 36-1002.04]. The minor recipient of the drug was Carlotta Silvas. The State introduced into evidence a paper containing heroin for illustrative purposes only, and an expert gave his opinion that the defendant had administered heroin to Carlotta Silvas. In sustaining the verdict, we stated:\\n\\\" [T]he issue is whether the defendant administered the narcotic drug, heroin, to the prosecutrix. A sample of the actual drug which was alleged to have been administered to Miss Silvas by the defendant was not in evidence. However, there is no reason why this crime could not be proven by circumstantial evidence just as any other crime. (Citation.) However, in this case the state introduced both direct and circumstantial evidence sufficient for the jury to find that in fact the defendant had administered heroin to the prosecutrix.\\\" 101 Ariz. at 232, 418 P.2d at 388.\\nThe corpus delicti of a crime may be proved by direct as well as circumstantial evidence. State v. Stewart, 231 Iowa 585, 1 N.W.2d 626 (1942); People v. Wetzel, 198 Cal.App.2d 541, 17 Cal.Rptr. 879 (1961). We hold that it was not error to admit the evidence for illustrative purposes, and find that the complained of evidence was material and relevant in the proof of the corpus delicti. We further find that the corpus delicti has been proved here.\\nAppellant next contends that it was error to permit Carlotta Silvas to testify that appellant gave himself a shot, or \\\"fix\\\", before administering the drug to her on each occasion. While it is true that felonious acts not supported by a conviction are not admissible for the purpose of proving the particular unlawful act charged, nevertheless the court properly admitted the testimony, for such evidence was so blended and connected with the crime of which appellant was charged that proof of one incidentally explained the circumstances of the other. See State v. Hardin, 99 Ariz. 56, 406 P.2d 406 (1965); State v. Tynes, 95 Ariz. 251, 389 P.2d 125 (1964).\\nOn the second day of trial, appellant presented to the court two local newspaper articles which referred to the testimony of Carlotta Silvas in appellant's prosecution and related it to testimony which she had previously given in the trial of Peter Munoz Valenzuela wherein Valenzuela had been convicted of a similar crime. Valenzuela's case has been previously discussed, supra. In that respect, appellant argued that the jurors would be biased and prejudiced if they had read the articles. The court asked the jurors whether any of them had read all or parts of the articles. Three jurors acknowledged that they had; the court questioned each of the three whether they could render a fair and impartial verdict based only upon the evidence introduced in court and all affirmed that they could. The court was satisfied that the appellant would receive a fair and impartial trial, and appellant's motion for a mistrial was denied. Appellant asserts, however, that neither the questioning of the jurors nor the cautioning statements from the bench were sufficient to alleviate the prejudicial effect the articles had upon the proceedings. We have examined the transcript and two newspaper articles and finding no prejudice resulted to appellant, hold that the court properly denied appellant's motion for a mistrial.\\nAppellant also contends that the court committed reversible error by failing to give an instruction that Carlotta Silvas was an accomplice, and that her testimony, if uncorroborated, would be insufficient to support a verdict of guilty.\\nA witness may be an accomplice if he can be informed against for the same crime of which the defendant is accused. State v. Valenzuela, 101 Ariz. 230, 418 P.2d 386 (1966). Section 13-136 A.R.S. (1956) provides that no conviction shall be had on the testimony of an accomplice unless the accomplice is corroborated by independent evidence which tends to connect the defendant with commission of the offense. Here, Carlotta Silvas, a minor, could not be informed against for a violation of \\u00a7 36-1002.03 A.R.S. \\u2014 administering a narcotic to a minor \\u2014 for the language is clear that only adults can be charged for violations of this statute. We hold, therefore, that the court properly refused to give the requested instruction.\\nHaving examined the record in this case, and finding the appellant's assignments of error not supported by sufficient evidence to warrant a reversal, we hereby affirm the conviction and sentences rendered by the superior court.\\nMcFARLAND, C. J., UDALL, V. C. J., and STRUCKMEYER and BERNSTEIN, JJ., concur.\"}"
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+"{\"id\": \"637216\", \"name\": \"STATE of Arizona, Appellee, v. William Reed ANDERSON, Appellant\", \"name_abbreviation\": \"State v. Anderson\", \"decision_date\": \"1964-06-04\", \"docket_number\": \"No. 1341\", \"first_page\": \"123\", \"last_page\": \"132\", \"citations\": \"96 Ariz. 123\", \"volume\": \"96\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T17:08:41.701557+00:00\", \"provenance\": \"CAP\", \"judges\": \"UDALL, C. J., LOCKWOOD, V. C. J., and STRUCKMEYER and BERNSTEIN, JJ., concurring.\", \"parties\": \"STATE of Arizona, Appellee, v. William Reed ANDERSON, Appellant.\", \"head_matter\": \"392 P.2d 784\\nSTATE of Arizona, Appellee, v. William Reed ANDERSON, Appellant.\\nNo. 1341.\\nSupreme Court of Arizona. En Banc.\\nJune 4, 1964\\nRehearing Denied June 23, 1964.\\nRoss /tnderson, Phoenix, for appellant.\\nRobert W. Pickrell, Atty. Gen., Merton E. Marks, Asst. Atty. Gen., for appellee.\", \"word_count\": \"3564\", \"char_count\": \"21231\", \"text\": \"JENNINGS, Justice.\\nWilliam Reed Anderson, appellant herein,, was informed against for violation of A. R.S. \\u00a7 13-391, par. 3, a misdemeanor, i. e.,, attempting to assist the escape of a prisoner incarcerated in the Maricopa County jail upon a charge of a felony. Appellant pleaded guilty and was thereafter adjudged guilty and sentenced to serve a term of eighteen (18) months in the Maricopa County jail. From the conviction and sentence, he appeals.\\nWe will direct our attention to the following questions: Was there a constitutional requirement that legal counsel be appointed to represent appellant under the circumstances of this case ?; and if so, was such requirement satisfied?\\nAppellant appeared without counsel at his arraignment in the Superior Court of Maricopa County on February 1st, 1963. The minute entry of that date reflects that the trial court found appellant to be without funds to employ legal counsel. The court advised appellant that the law did not permit the appointment of counsel upon a charge of a misdemeanor. The minute entry then states \\\"defendant then waives the reading of the Information and pleads guilty to the charge, because of no counsel to represent him.\\\" (Emphasis ours.)\\nOn the same date appellant stated he probably would be able to obtain counsel if his bond were reduced. The court, treating this request as a motion for reduction of bond, assigned the matter to a special proceeding court, continued the arraignment to February 8th, and allowed appellant to withdraw his plea of guilty. The motion to reduce the bond was heard and denied on February 5th, 1963. On February 8th, appellant withdrew his plea of not guilty and again entered a plea of guilty to the Information. Appellant was not represented by counsel at this time.\\nThe date for sentencing was set for February 15th, 1963. At that time, appellant appeared still in custody and without counsel. The court \\\"interrogated\\\" appellant and thereafter requested Mr. Robert Welliever to counsel with him whereupon the court recessed. The court reconvened and the record shows that Mr. Welliever counseled with appellant, and was thereupon released from any further responsibility in the matter. The sentencing was continued to February 21st.\\nAt the new sentencing time, appellant was present without counsel. The trial court thereupon adjudged him guilty. Thereafter, appellant initiated appeal proceedings and appellate counsel was appointed to represent him. At all proceedings, save the final sentencing, the county attorney was represented.\\nWas the superior court required by virtue of the due process clause of the Fourteenth Amendment of the United States Constitution to appoint counsel for appellant under the circumstances of this case? To answer this question we must examine the recent decision of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and the historical background leading up to this landmark case.\\nClarence Gideon, an indigent, was charged with a state noncapital felony. He appeared in court without funds and without a lawyer and asked the court to appoint counsel for him. The court refused this request on the ground that under Florida law the only time the court could appoint counsel to represent a defendant was when that person was charged with a capital offense. Gideon thereupon conducted his own defense. The jury returned a verdict of guilty and a sentence of five years in the state prison was imposed. Later Gideon filed a petition for a writ of habeas corpus in the Florida Supreme Court but was denied all relief.\\nUpon granting certiorari, the United States Supreme Court specifically requested counsel to discuss in their briefs and oral arguments the following: \\\"Should this Court's holding in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 be reconsidered?\\\" The Court expressly overruled Betts v. Brady and held that the Sixth Amendment's guarantee of counsel was one of those provisions of the Bill of Rights fundamental and essential to a fair trial, made obligatory on the states by the Fourteenth Amendment, and that an indigent defendant in a criminal prosecution in a state court has the right to have counsel appointed for him.\\nThe law in the federal courts prior to Gideon was as follows: The Sixth Amendment to the Federal Constitution expressly provided that \\\"In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense.\\\" (Emphasis ours.) In 1938, the Supreme Court, in a case involving a felony-charge, ruled that the Sixth Amendment withheld from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he had or waived the assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. Mr. Justice Black, speaking for the court, stated at p. 462 of 304 U.S., at p. 1022 of 58 S.Ct., at p. 1465 of 82 L.Ed.:\\n\\\" This (right to counsel) is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. \\\"\\nAgain at pp. 467-468 of 304 U.S., at p. 1024 of 58 S.Ct., at p. 1468 of 82 L.Ed., he said:\\n\\\" Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty. If the accused is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. \\\"\\nThe Johnson rule was followed in the cases of Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830, and. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, rehearing denied 315 U.S. 827, 62 S.Ct. 629, 637, two cases, 86 L.Ed. 1222. Subsequently, Rule 44 of the Federal Rules of Criminal Procedure was enacted to codify the existing law as enunciated in these three cases. The Supreme Court had not, before Gideon,'decided whether the Johnson rule was applicable to cases involving a charge of a misdemeanor.\\nWhat was the situation in the state courts prior to Gideon? The defendants had to rely upon the due process clause of the Fourteenth Amendment for their constitutional right to assigned counsel.\\nIn the case of Hurtado v. California, 110 U.S. 516, 4 S.Ct. Ill, 28 L.Ed. 232, the appellant asked the Court to rule that the due process of law clause of the Fourteenth Amendment required the states to provide criminal indictments by grand jury as was required in federal courts pursuant to the mandate of the Fifth Amendment. The Court held in effect that since no part of the Fifth Amendment could be regarded as superfluous, the term \\\"due process of law\\\" as used in that amendment was not intended to include the institution and procedure of a grand jury in any case; and that the same phrase, employed in the Fourteenth Amendment was to be interpreted as having been used in the same sense and with no greater extent; and that if it had been the purpose of that Amendment to perpetuate the institution of the grand jury in the states, it would have embodied, as did the Fifth Amendment, an express declaration to that effect.\\nOne could make this same argument with respect to the incorporation of the Sixth Amendment's right to counsel into the due process clause of the Fourteenth Amendment. The extreme Hurtado rule, however, has been relaxed in later cases.\\nThe Court, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932) had before it the question whether, under the circumstances of that case, the defendants were denied the right of counsel, and if so, whether such denial infringed the due process clause of the Fourteenth Amendment. The Court noted the Hurtado rule but cited cases which laid down exceptions thereto. They said in effect that the Hurtado rule was an aid to construction and in some instances would be conclusive, but that it had to yield to more compelling considerations whenever such considerations existed. The Court went on to say at pp. 67, 68 of 287 U.S., at p. 63 of 53 S.Ct., at pp. 169 and 170 of 77 L.Ed.:\\n\\\" The fact that the right involved is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions' (citing case) is obviously one of those compelling considerations which must prevail in determining whether it is embraced within the due process clause of the Fourteenth Amendment, although it be specifically dealt with in another part of the Federal Constitution. While the question has never been categorically determined by this court, a consideration of the nature of the right and a review of the expressions of this and other courts makes it clear that the right to the aid of counsel is of this fundamental character.\\\" (Emphasis ours.)\\nThe Court held that in a state capital case, where the defendant was unable to employ counsel, and was incapable adequately of making his own defense because of ignorance, feeblemindedness, illiteracy or the like, it was the duty of the court, whether requested or not, to assign counsel as a necessary requisite of due process of law; and that such duty was not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.\\nAlthough the Court restricted its holding to the facts involved, nevertheless, as Mr. Justice Clark pointed out in his concurring opinion in Gideon, the law evolved thereafter so that in all state capital cases the accused had the right to assigned counsel by virtue of the Fourteenth Amendment.\\nIn 1942 the Court had before it the case of Betts v. Brady, supra. Betts was an indigent indicted for a non-capital felony. His request for legal assistance was denied on the ground that such assistance was available only to those accused of committing a capital felony. Such denial was approved by the State supreme court and on certiorari the United States Supreme Court affirmed. The question which the Court had to decide was: Whether due process of law demands that in every criminal case, whatever the circumstances, a state must furnish counsel to an indigent defendant. Is the furnishing of counsel in all cases whatever dictated by natural, inherent, and fundamental principles of fairness?\\nAfter reviewing many authorities, the Court concluded that appointment of counsel was not a fundamental right, essential to a fair trial but that on the contrary, the matter had generally been deemed one of legislative policy. The Court further stated at p. 471 of 316 U.S., at p. 1261 of 62 S.Ct., at pp. 1606, 1607 of 86 L.Ed.:\\n\\\"In the light of this evidence we are unable to say that the concept of due process incorporated in the Fourteenth Amendment obligates the states, whatever may be their own views, to furnish counsel in every such case. Every court has power, if it deems proper, to , appoint counsel where that course seems to be required in the interest of fairness.\\\"\\nThe Court, rather than extend the Powell rule, adopted the \\\"ad hoc\\\" approach:\\n\\\" Asserted denial (of due process) is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.\\\" p. 462 of 316 U.S., p. 1256 of 62 S.Ct, p. 1602 of 86 L.Ed.\\nThe majority feared that if the rule as asserted were made obligatory upon the states, it would impose a requirement without distinction between criminal charges of different magnitude or in respect of courts of varying jurisdiction. They quoted Hon. Carroll T. Bond, Chief Judge of the Court of Appeals of Maryland, to the effect that:\\n\\\" 'Charges of small crimes tried before justices of the peace and capital charges tried in the higher courts would equally require the appointment of counsel. Presumably it would be argued that trials in the Traffic Court would require it.' \\\" p. 473 of 316 U.S., p. 1261 of 62 S.Ct., p. 1607 of 86 L.Ed.\\nThe Court concluded by saying:\\n\\\" while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel.\\\" p. 473 of 316 U.S., p. 1262 of 62 S.Ct., p. 1607 of 86 L.Ed.\\nMr. Justice Black wrote a vigorous dissent wherein he stated \\\"I believe that the Fourteenth Amendment made the sixth [Amendment] applicable to the states.\\\"\\nThen the landmark Gideon decision was handed down in 1963. The Court in that case stated at p. 342, of 372 U.S., at p. 795 of 83 S.Ct., at p. 804 of 9 L.Ed.2d:\\n\\\"We accept Betts v. Brady's assumption, based as it was on our prior cases, that a provision of the Bill of Rights which is 'fundamental and essential to a fair trial' is made obligatory upon the States by the Fourteenth Amendment. We think the Court in Betts was wrong, however, in concluding that the Sixth Amendment's guarantee of counsel is not one of these fundamental rights.\\\" (Emphasis ours.)\\nAt pp. 343, 344, 345 of 372 U.S., at pp. 796, 797 of 83 S.Ct., at pp. 805, 806 of 9 L. Ed.2d, the Court further stated:\\n\\\" The fact is that in deciding as it did \\u2014 that 'appointment of counsel is not a fundamental right, essential to a fair trial' \\u2014 the Court in Betts v. Brady made an abrupt break with its own zvell-considered precedents. The Court in Betts v. Brady departed from the sound wisdom upon which the Court's holding in Powell v. Alabama rested.\\\" (Emphasis ours.)\\nIn view of the foregoing, there is no question in our minds but that the Sixth Amendment's guarantee of right to counsel is carried full sweep to the states by the due process clause of the Fourteenth Amendment.\\nRule 163 of the Arizona Rules of Criminal Procedure, 17 A.R.S. provides that the trial court shall assign counsel to represent indigents accused of a felony. Does Gideon require that counsel be appointed to represent appellant under the circumstances of this case? We think so.\\nIn Patterson v. State, 227 Md. 194, 175 A.2d 746, the defendant was convicted upon misdemeanor counts having a maximum potential penalty of one thousand dollars fine or two years imprisonment. The lower court refused to appoint counsel on the ground that the charges involved were not \\\"serious\\\" within the statutory definition and the State Supreme Court affirmed this refusal. On certiorari, Patterson v. Warden, Maryland Penitentiary, 372 U.S. 776, 83 S.Ct. 1103, 10 L.Ed.2d 137, the judgment was vacated and the case remanded for further consideration in light of Gideon. Upon remand the judgment of conviction was reversed and the case sent to the Criminal Court of Baltimore for a new trial and further proceedings in conformity with Gideon. Patterson v. State, 231 Md. 509, 191 A.2d 237.\\nIn view of the Patterson cases, we believe that Gideon requires state courts to appoint counsel for indigents accused of a misdemeanor which falls in the category of a \\\"serious offense\\\" and we so hold. The superior court must determine whether the misdemeanor charged is a \\\"serious offense\\\" under the particular circumstances. Some of the factors to be considered in making this determination are the nature of the offense, the extent of the potential penalty, and the complexity of the case. The fact that the maximum potential penalty in the instant case is a fine not exceeding one thousand dollars and imprisonment in the county jail for not to exceed two years is sufficient to warrant placing this crime in the \\\"serious\\\" category. Patterson v. Warden, Maryland Penitentiary supra.\\nWas the constitutional requirement satisfied under the circumstances? Appellee contends that appellant voluntarily pleaded guilty, thereby waiving the assistance of counsel; that notwithstanding this, the requirement of right to counsel was satisfied by the brief consultation appellant had with Mr. Welliever at the time of sentencing. These contentions are without merit.\\nThe courts indulge every reasonable presumption against waiver of fundamental constitutional rights, and we do not presume acquiescence in the loss of fundamental rights. Johnson v. Zerbst, supra. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused. Johnson v. Zerbst, supra.\\nIn the instant case there definitely was no intelligent waiver. Appellant was told he could not have counsel appointed to represent him whereupon he pleaded guilty \\\"because of no counsel to represent him.\\\" Thereafter appellant attempted to acquire counsel via the bond reduction route but his motion to reduce the bond being denied, he again entered a plea of guilty. The trial court denied appellant his constitutional right to appointed counsel.\\nIn answer to appellee's contention that the constitutional requirement was satisfied by the brief consultation with Welliever at the sentencing time, we hold that the constitutional requirement of right to counsel must be satisfied at least at the arraignment stage. We need not now decide whether the requirement must be satisfied at an earlier stage in the proceedings.\\nOur reasons for this holding are the following: The accused must make his plea at arraignment. 17 A.R.S. R.Crim. Proc. 160. The importance of counsel at the pleading stage is indicated by the statement of the court in Evans v. Rives, 75 U.S.App.D.C. 242, 126 F.2d 633, 637:\\n\\\"It is important to an accused, in determining in what manner he may properly meet a charge and before a decision as to the nature of his plea, to have the advice of counsel concerning, for example, the sufficiency of the indictment, the possible existence of a defense or bar under facts known to the accused but the legal import of which he may not know, the nature of the penalty provided for the offense charged, and the probable extent to which it will be imposed, under the facts involved, in the event of a plea of guilty.\\\"\\nThe effect of a plea of guilty is the same as if the defendant had been tried before a jury and had been found guilty upon evidence covering all material facts. State v. Buckmaster, 94 Ariz. 314, 383 P.2d 869. Furthermore, a plea of guilty may not be withdrawn except in the discretion of the trial judge and his discretion will not be overridden unless there is a clear abuse thereof. State v. Wilson, 95 Ariz. 372, 390 P.2d 903, No. 1331. The arraignment is a critical stage of the proceedings in Arizona and a denial of counsel here will be considered a deprivation of a constitutional right. Accord, Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114.\\nSince we are reversing this cause we deem it unnecessary to discuss the other assignments of error.\\nJudgment reversed and cause remanded for proceedings not inconsistent herewith.\\nUDALL, C. J., LOCKWOOD, V. C. J., and STRUCKMEYER and BERNSTEIN, JJ., concurring.\\n. \\\"If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceedings unless he elects to proceed without counsel or is able to obtain counsel.\\\"\\n. E. g., Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138 (speech and press) ; Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (religion); De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278 (assembly); Shelton v. Tucker, 364 U.S. 479, 486, 488, 81 S.Ct. 247, 251, 252, 5 L.Ed.2d 231 (association) ; Chicago, B. & Q. It. Co. v. City of Chicago, 166 U.S. 226, 235-241, 17 S.Ct. 581, 584^586, 41 L.Ed. 979 (taking of private property for public use without just compensation); Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (unreasonable searches and seizures); Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 75S (cruel and unusual punishment).\\n. 372 U.S. 335, 347, 349, 83 S.Ct. 792, 798, 799, 9 L.Ed.2d 799, S07, 80S.\\n. Betts v. Brady was decided after the Johnson, Walker and Glasser cases referred to supra.\\n. 316 U.S. 455, 474, 62 S.Ct. 1252, 1262, 86 L.Ed. 1595, 1607, 1608. Mr. Justice Douglas, also of tlio Gideon court, joined in this dissent.\"}"
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+"{\"id\": \"639057\", \"name\": \"CITY OF PHOENIX, a municipal corporation; Jack Williams, Mayor of the City of Phoenix; Val A. Cordova, Dr. Joseph M. Greer, G. Wesley Johnson, David P. Jones, Faith I. North and Clarence H. Shivvers, Councilmen of the City of Phoenix; John W. Beatty, Planning Director of the City of Phoenix, and F. C. Hurst, Building Inspector of the City of Phoenix, Appellants, v. Paul FEHLNER and Pola Fehlner, his wife; Jerry G. Kastner and Anita D. Kastner, his wife; Clarence L. Ashcraft; L. F. Mills and Thelma S. Mills, his wife; Byron Simonson and Meryl Simonson, his wife; Harry S. Gill and Naomi LaVerne, Gill, his wife; Howard E. Clements and Louella Clements, his wife; William M. Billings; Mary F. Mullen, a widow et al., Appellees\", \"name_abbreviation\": \"City of Phoenix v. Fehlner\", \"decision_date\": \"1961-07-13\", \"docket_number\": \"No. 6648\", \"first_page\": \"13\", \"last_page\": \"27\", \"citations\": \"90 Ariz. 13\", \"volume\": \"90\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:51:36.878868+00:00\", \"provenance\": \"CAP\", \"judges\": \"LOCKWOOD, J., and PORTER MUR-RY, Superior Court Judge, concurring.\", \"parties\": \"CITY OF PHOENIX, a municipal corporation; Jack Williams, Mayor of the City of Phoenix; Val A. Cordova, Dr. Joseph M. Greer, G. Wesley Johnson, David P. Jones, Faith I. North and Clarence H. Shivvers, Councilmen of the City of Phoenix; John W. Beatty, Planning Director of the City of Phoenix, and F. C. Hurst, Building Inspector of the City of Phoenix, Appellants, v. Paul FEHLNER and Pola Fehlner, his wife; Jerry G. Kastner and Anita D. Kastner, his wife; Clarence L. Ashcraft; L. F. Mills and Thelma S. Mills, his wife; Byron Simonson and Meryl Simonson, his wife; Harry S. Gill and Naomi LaVerne, Gill, his wife; Howard E. Clements and Louella Clements, his wife; William M. Billings; Mary F. Mullen, a widow et al., Appellees.\", \"head_matter\": \"363 P.2d 607\\nCITY OF PHOENIX, a municipal corporation; Jack Williams, Mayor of the City of Phoenix; Val A. Cordova, Dr. Joseph M. Greer, G. Wesley Johnson, David P. Jones, Faith I. North and Clarence H. Shivvers, Councilmen of the City of Phoenix; John W. Beatty, Planning Director of the City of Phoenix, and F. C. Hurst, Building Inspector of the City of Phoenix, Appellants, v. Paul FEHLNER and Pola Fehlner, his wife; Jerry G. Kastner and Anita D. Kastner, his wife; Clarence L. Ashcraft; L. F. Mills and Thelma S. Mills, his wife; Byron Simonson and Meryl Simonson, his wife; Harry S. Gill and Naomi LaVerne, Gill, his wife; Howard E. Clements and Louella Clements, his wife; William M. Billings; Mary F. Mullen, a widow et al., Appellees.\\nNo. 6648.\\nSupreme Court of Arizona. En Banc.\\nJuly 13, 1961.\\nRehearing Denied Oct. 10, 1961.\\nWilliam C. Eliot, City Atty., Merle L. Hanson, Anis Mitchell and Charles A. Filler, Asst. City Attys., Phoenix, for appellants.\\nGorodezky, Mitchell & Stuart, Phoenix, for appellees.\", \"word_count\": \"5968\", \"char_count\": \"36299\", \"text\": \"UDALL, Justice.\\nThis case involves a challenge to the Zoning Ordinance of the City of Phoenix, as applied to the properties fronting on Thomas Road from 25th Place to 28th Street. The trial court held that the ordinance as applied to'these properties was unconstitutional. The,, defendant City of Phoenix has appealed from that judgment.\\nOn April 19, 1955, the City of Phoenix annexed an area containing approximately 4.9 square miles of which the parcels herein question were only a small fraction. After extensive study the planning and zoning department of the city prepared a tentative zoning map which it presented to the zoning board. The zoning board then held extensive public hearings and after some adjustments in the tentative plan based on-the objections of property holders and information gathered at the hearings the zoning board submitted to the city council' a comprehensive zoning plan for the entire area. The council held further hearings, and made some additional changes, them enacted the plan as modified which is Ordinance G-133. The objections of the parties to this action-were fully considered at the hearings held by the city council and its zoning agencies.\\nAt the time of annexation the two and one-half block-long strip in issue was occupied primarily by residential uses although it was a somewhat mixed area. The map of existing uses offered in evidence shows that the north side of Thomas from 26th Street to 28th Street was entirely residential except for one small contractor's office and a Dairy Queen ice-cream stand. The other half block of the north side from 25th Place to 26th Street was vacant except for a small office on the northwest corner of 26th and Thomas. On the south side of Thomas from 25th Place to 28th Street one half the property was devoted to residential uses while the remaining part was primarily devoted to orange groves or other undeveloped areas. Only one parcel of land had any commercial development.\\nA summary of existing uses indicates that it is mixed with residential clearly predominating over all other uses combined, followed by undeveloped and agricultural uses with only minor commercial use. The properties extending north and south from Thomas Road (those abutting the disputed lots) to a depth of several blocks are clearly residential in use except for some farming or vacant uses on the south.\\nFurther complicating the factual situation at the time of annexation and the passage of Zoning Ordinance G-133 was the fact that Maricopa County had imposed on the disputed strip of two and one-half blocks along Thomas Road a hodgepodge of zoning which included some four or five different classifications which led the trial judge to say, among other things:\\n\\\"I don't know of a case that I have examined that would permit such zoning as this. The courts have said time and time again this spot zoning cannot be supported.\\n. *\\n\\\"I can't imagine the people sitting by and letting this happen.\\\"\\nIt further appears that the Maricopa County Zoning ordinance covering this area at the time of annexation subsequently was declared void by this court for fundamental error in its attempted enactment. Hart v. Bayless Investment & Trading Co., 86 Ariz. 379, 346 P.2d 1101. Thus by decree'of this court there was legally no existing ordinance covering this property at the time of annexation.\\nConfronted with the foregoing factual situation the City of Phoenix passed Zoning' Ordinance G-133 which made classifications designed to harmonize this area with its master plan while at the same time conforming as nearly as possible, without being guilty of illegal spot zoning, to the existing use of the area. The strip in question was just part of a larger section of the newly annexed area which was zoned R-5. This classification permits the broadest range of uses of any of the residential classifications. In addition to ordinary residential uses, it permits, among others, some office buildings, drive-in theaters, hotels, motels, trailer courts, hospitals and similar charitable institutions. In fact, even though the area zoned R-5 was substantially developed at the time G-133 was passed, there were only three out of approximately thirty of the lots in question which were then being used commercially and they were granted nonconforming use permits.\\nIt is significant to note that Thomas Road is one of the arterial streets which, according to the traffic map in evidence, carry substantially larger volumes of traffic than other streets lying between the arteries. The maps in evidence show that the entire northeast quadrant of the city is served by a grid of arteries generally about eight blocks apart and running both north-south and east-west. The zoning and existing use maps in evidence show that with very little exception the zoning and uses between arterial streets is limited to the more restrictive residential uses, principally R-l and R-2. At the same time and with commendable consistency the zoning along the arterial streets is distributed in regular patterns between R-5, which is the least restrictive of the residential uses arid different only in a limited degree from the more restrictive commercial uses, and the most restrictive type commercial uses, C-l and C-2. Some of the properties fronting on arterial streets are, however, zoned for the more restrictive residential uses including R-l. There are only one or two instances where parcels are zoned either R-5 or C-l or C-2 which do not front on an arterial street.\\nThe pattern of distribution between R-5 and the commercial zones is substantially this: at and near the intersection of arterial streets on the arterial grid the properties \\u00e1re zoned for commercial use and between those intersections ~ are located the R-5 zones. When the fact is borne in mind that R-5 is next to C-l on a continuum of zoning classifications which includes ten different zones the sense of the zoning pattern becomes more clear even to persons not trained in the science of zoning who must rely on the cold appellate record for their information.\\nIt is especially significant that the-maps in evidence show that the zoning of the parcels in dispute is fully consistent with the patterns established throughout an infinitely larger area of the city. Even more significant is the fact that Thomas Road itself from Central Avenue to 56th Street ( a distance of fifty-six blocks) is zoned predominantly for R-5 use. Along this entire distance the only departure from R-5 zoning is for some small strips of R-l (most restrictive residential use) and some (much less than half the properties fronting on Thomas Road) commercial zoning at the intersections of the arterial grid.\\nWe think that even a superficial look at the exhibits in evidence completely rids the zoning here employed of any stain of possible spot zoning so frequently condemned by the courts. We cannot see that strip zoning as here employed is subject to condemnation. It follows a sensible pattern and to condemn it would be to condemn as well the application of commercial zoning to this area which is the alternative zoning which the complaining property holders contend should be employed rather than R-5.\\nThe problem of what constitutes an appropriate zone is primarily for the legislature. It is not the prerogative of the courts to substitute their judgment for that of the body which our system of government vests with primary responsibility for determining how best to serve public health, safety and welfare. The only role which the courts can properly play in the decision making once the properly constituted legislative body has spoken is to insure that the legislature has not exceeded the broad bounds set by the constitutions of the State and of the United States. As recently as 1954 the Supreme Court of the United States indicated in a unanimous decision that the limits within which the legislative judgment on public welfare must be left free are broad indeed. The court said:\\n\\\"The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.\\nIn the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them.\\\" Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102-103, 99 L.Ed. 27, 38.\\nWhile the Supreme Court in the Berman case was dealing with the Due Process Clause of the Fifth Amendment which restricts federal action we think for the purposes here under consideration that the Due Process Clause of the Fourteenth Amendment is no more restrictive of state action when exercising its police power to promote the general welfare. See State ex rel. Saveland Park Holding Corp. v. Wieland, 269 Wis. 262, 69 N.W.2d 217.\\nThe concept that a man owns his property from the center of the earth to the limits of the sky to use as suits his own fancy is not now and has not ever been entirely true. The doctrine of nuisance which has always been a restriction on land use is as ancient as the title to any land in this country. Of course in the beginning it dealt only with the more gross and obvious kinds of nuisance. But urban disease like disease of the body has been subjected to much more sophisticated examination in recent years. Now the germ theory of urban diseases such as slums, blight and others is well established. Where once the thought of an injection with a needle to prevent smallpox would have horrified even the most sophisticated in society we now accept it as a matter of course and may constitutionally compel every citizen to submit to the treatment in the interest of the general welfare. To suggest otherwise would be laughable in our times. The fact that a similar development in the treatment of urban diseases has been much slower cannot in any way justify us in drawing constitutional limits which prevent the discovery and application of preventative medicine to this kind of public disease. Its very complexity suggests the need for a broad range within which to operate. If in our comparatively virgin state we can prevent the laying of the first brick of a ghastly slum like those which have ulcerated great urban centers elsewhere we should consider the cost of some experimentation a matter of small import indeed.\\nThe persons who own property fronting on Thomas Road have no right to indiscriminately ignore the impact of their development on the properties adjacent to them. The zoning employed gives them great latitude to fix their own course of development but according to the lengthy testimony of those who are qualified in zoning the negative limits placed on that choice are necessary to prevent the creeping development of undesirable conditions which ultimately would cast a burden on all the property holders in the community. We think the limits set do not transcend the bounds of constitutionality.\\nThere is a presumption that a zoning ordinance is valid. McCarthy v. City of Manhattan Beach, 41 Cal.2d 879, 264 P.2d 932; Standard Oil Co. v. City of Tallahassee, 5 Cir., 183 F.2d 410; 8 McQuillin, Municipal Corporations (3rd Ed.) \\u00a7 25.295. The party objecting to the ordinance has the burden of showing the unconstitutionality of the ordinance. We said in City of Tucson v. Arizona Mortuary, 34 Ariz. 495, 506-507, 272 P. 923, 927:\\n\\\"It therefore appears that the highest authority in the land has held that ordinances dividing cities into districts on the basis of whether they are residential or business and limiting the use of real estate within these various districts to certain purposes are to be sustained in principle, it being necessary in order that they be declared unconstitutional that it affirmatively appear the restriction is clearly arbitrary and unreasonable, and has not any substantial relation to the public health, safety, morals, or general welfare.\\\" (Emphasis supplied.)\\nThe rule set forth in that case is by- no means novel. We said in Edwards v. State Board of Barber Examiners, 72 Ariz. 108, 112-113, 231 P.2d 450, 452;\\n\\\" ' [Wjhere an enactment bears any reasonable relationship to the end sought the courts may not substitute their judgment for the judgment of the legislature.' And again stating antithetically: 'Hence the rule which is of universal acceptance that the courts will acquiesce in the legislative determination of all matters of fact unless it is clearly erroneous, arbitrary and wholly unwarranted.'\\n\\\"With these statements of the law we are in accord.\\\"\\nWe are of the opinion that the objecting property holders completely failed to show that G-133 was clearly arbitrary and unreasonable and that it has no substantial relation to the public health, safety, morals, and general welfare. They nowhere contend that their properties are not reasonably usable for the purposes permitted under R-5 zoning. They offer, however, proof that their properties would be more valuable under commercial zoning, especially in view of the amount of traffic along Thomas, and that the natural development of the area was toward commercial use.\\nThe mere loss of value has long been rejected as a basis for avoiding a zoning statute. City of Tucson v. Arizona Mortuary, supra. Nonconfiscatory financial loss where the property can be reasonably used for the purpose for which zoned is not, as a matter of law, sufficient to permit the courts to hold the ordinance unconstitutional.\\n\\\"To sustain an attack upon the , validity of the ordinance an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions upon his property preclude its use for any purpose to which it is reasonably adapted.\\\"\\nArverne Bay Const. Co. v. Thatcher, 278 N.Y. 222, 226, 15 N.E.2d 587, 589, 117 A.L.R. 1110. See also City of Tucson v. Arizona Mortuary, supra. The fact that the property is reasonably useable for the purposes for which zoned is sufficient to establish that this ordinance was not confiscatory. In addition, even if taken in the light most favorable to the property holders the evidence shows at most that the properties would be 50% less valuable for uses permitted under G-133 than for commercial use. On its face this is not a sufficient difference for the court to say that it is confiscatory and thus a taking without due process of law. So far as we can determine all that line of cases holding zoning ordinances to be confiscatory show a loss considerably in excess of that shown in this case, or that the property was unusable as zoned. Several cases have sustained ordinances where property devaluations were considerably greater than in this case. See, e. g., Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; Brae Burn, Inc. v. City of Bloomfield Hills, 350 Mich. 425, 86 N.W.2d 166.\\nEven if the evidence shows conclusively that the natural development of this section would be toward commercial use it is not for the courts to say that zoning which prevents such development is unconstitutional. We said in City of Tucson v. Arizona Mortuary, supra, 34 Ariz. at page 508, 272 P. at page 927:\\n\\\"To hold that for zoning purposes a district could not be classified as residential merely because a few isolated business houses had been already established therein would practically prohibit the exercise of the right of zoning. As we have seen by the foregoing quotations from the Euclid case, neither the mere fact that the natural development of a district was toward industrial enterprise and that the normal and reasonably to be expected future use of certain property was for industry and trade purposes, nor the fact that property, if used for business purposes, would be of more value than if used for residential, will justify a court in finding unconstitutional an ordinance which checks or defeats such development or diverts it to another district.\\\"\\nNot only have the property holders failed to show affirmatively that the ordinance is unreasonable and arbitrary and that it bears no proper relation to the police power of the state but in addition it affirmatively appears in the record for the city that the ordinance complied as nearly as possible to the existing uses of the area. It further appears that the city's experts testified that commercial zoning in this area would create additional traffic hazards which clearly relate this ordinance to the police power over safety.\\nThe most that can be said for the property holders' case is that it might be said upon the record that the reasonableness of the ordinance and its relationship to the police power are fairly debatable. The law is well settled that where there is any reasonable doubt as to the validity of the ordinance the court will not substitute its opinion for that of the legislative body. Price v. Schwafel, 92 Cal.App.2d 77, 206 P.2d 683; Willett & Crane, Inc. v. City of Palos Verdes Estates, 96 Cal.App.2d 757, 216 P.2d 85; Mallory v. Town of West Hartford, 138 Conn. 497, 86 A.2d 668.\\nThe property holders did not rely entirely on their attempt to carry the burden of showing affirmatively the unconstitutionality of G-133. They contend that in this case G-133 constitutes a change of an existing zoning ordinance and that therefore the burden of proof shifts to the city to prove affirmatively that there has been a change of circumstances justifying such a change. Whatever the rule may be which applies to change or amendment of existing ordinances that rule can have no application in this case where, as we have already noted, there was no lawful zoning ordinance in effect as to this property at the time of its annexation and the passage of G-133.\\nIn light of our determination of the issues in this case we hold that the trial court err ed in holding that G-133 as applied to these properties was unconstitutional. The judgment of the trial court is therefore reversed.\\nLOCKWOOD, J., and PORTER MUR-RY, Superior Court Judge, concurring.\\nBERNSTEIN, V. C. J., having announced his disqualification, the Honorable PORTER MURRY, Judge of Superior Court, Greenlee County, was called to sit in his stead.\"}"
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+"{\"id\": \"643110\", \"name\": \"In the Matter of Roy Lee DODD, Petitioner, v. L. C. \\\"Cal\\\" BOIES, Sheriff of Maricopa County, Arizona, Respondent\", \"name_abbreviation\": \"Dodd v. Boies\", \"decision_date\": \"1960-11-13\", \"docket_number\": \"No. 7178\", \"first_page\": \"401\", \"last_page\": \"409\", \"citations\": \"88 Ariz. 401\", \"volume\": \"88\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T21:42:54.543446+00:00\", \"provenance\": \"CAP\", \"judges\": \"STRUCKMEYER, C. J., and LESHER, J., concur.\", \"parties\": \"In the Matter of Roy Lee DODD, Petitioner, v. L. C. \\u201cCal\\u201d BOIES, Sheriff of Maricopa County, Arizona, Respondent.\", \"head_matter\": \"357 P.2d 144\\nIn the Matter of Roy Lee DODD, Petitioner, v. L. C. \\u201cCal\\u201d BOIES, Sheriff of Maricopa County, Arizona, Respondent.\\nNo. 7178.\\nSupreme Court of Arizona.\\nNov. 13, 1960.\\nGibson & Gibson, Phoenix, for petitioner.\\nCharles C. Stidham, County Atty., Phoenix, Darrell F. Smith, Deputy County Atty., Mesa, for respondent.\", \"word_count\": \"3267\", \"char_count\": \"18852\", \"text\": \"BERNSTEIN, Justice.\\nThis is an original petition for a writ of habeas corpus to obtain the release of petitioner from the Maricopa County jail, where he is being held, without bail, for trial.\\nThe principal issue before the Court is whether the evidence adduced at the preliminary hearing justified the magistrate in concluding there was \\\"probable cause\\\" that petitioner was guilty of the offense with which he was charged. Under our statutes, 17 A.R.S. Rules of Criminal Procedure, Rule 33, and \\u00a7 13-2012, the magistrate shall hold a defendant for trial if he has no jurisdiction, and if he concludes upon preliminary hearing there is probable cause that defendant is guilty of the offense charged. He is also required to discharge defendant if he finds such probable cause does not exist. This Court recently stated, in discussing the function of the magistrate, that:\\n\\\" a magistrate conducting a preliminary hearing should be mindful that his duty is not to determine the ultimate guilt or innocence of a defendant, or determine the degree of the crime charged, but only to determine whether there is probable cause to believe defendant guilty of the offense charged, and leave to the trial tribunal the final determination of the application of the law to the facts and leave to the jury the question as to whether defendant is guilty of the offense charged or of an included offense.\\\" Application of Williams, 85 Ariz. 109, 117-118, 333 P.2d 280, 285-286.\\nThe record discloses that about 1:30 A.M. on the morning of June 11, 1960, petitioner approached Jesse Williams and asked him for a gun. Williams told petitioner that he did not have a gun, but that Leonard Phillips had one. Petitioner then asked Williams to get the gun from Phillips and shortly thereafter, Phillips returned with a gun which he gave to the codefendant, Melvin Dixon. Thereupon the petitioner, Williams, Phillips, and Dixon went beside the fire house where Dixon test-fired the gun. After the gun was test-fired, the group walked over to the Oasis Cafe. Williams testified that a short time later, while he was talking with his cousin in front of the Broadway Cafe, he heard a shot, and as he ran, he saw upon looking into the Broadway Cafe, the victim clutching a chair, the codefendant Melvin Dixon standing up, and petitioner sitting down in a booth.\\nPetitioner is here charged with first-degree murder under A.R.S. \\u00a7 13-451, \\u00a7 13-452, and \\u00a7 13-453. The State concedes petitioner did not do the actual killing. It is the State's position, however, that petitioner \\\"aided and abetted\\\" codefendant, thus rendering himself a \\\"principal\\\" to the crime within the meaning of A.R.S. \\u00a7 13-139, which provides:\\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 and abet in its commission, or, not being present, have advised and encouraged its commission are principals in any crime so committed.\\\"\\nThere is a serious question as to whether the magistrate was justified in deciding there existed probable cause that petitioner aided and abetted, especially in view of this Court's statement as to what acts are necessary to render one a principal.\\n\\\"The 'aiding' or 'abetting' contemplated by the statute is some positive act in aid of the commission of the offense\\u2014a force physical or moral joined with that of the perpetrator in producing it. The aider or abettor must stand in the same relation to the crime as the criminal, approach it from the same angle, touch it at the same point. \\\" State v. Martin, 74 Ariz. 145, 151, 245 P.2d 411, 414 citing for the quoted proposition Baumgartner v. State, 20 Ariz. 157, 178 P. 30.\\nOur cases and statute make it clear that in order to be guilty as a principal, one must possess criminal intent. A.R.S. \\u00a7 13\\u2014131; Acker v. State, 26 Ariz. 372, 379, 226 P. 199, 201.\\nThe crux of the problem depends upon what is meant by the phrase \\\"probable cause\\\". It has been held in order for a magistrate properly to conclude there is \\\"probable cause\\\" defendant committed the offense for which he is charged, there must be \\\" more evidence for, (rather) than against\\\", defendant's guilt, Davis v. Superior Court, 175 Cal.App.2d 8, 22-23, 345 P.2d 513, 522, and there must exist \\\"such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused.\\\" Davis v. Superior Court, supra (emphasis supplied); People v. Nagle, 25 Cal.2d 216, 222, 153 P.2d 344, 347. Thus, although the State need not, at a preliminary hearing, present as much proof as would be required to sustain a conviction (People v. Nagle, supra), it must do more than create a mere suspicion that defendant is guilty of the offense for which he is charged.\\nThe only evidence to link petitioner with codefendant Dixon is the testimony indicating at about 1:30 A.M. he (petitioner) told the witness Williams, Dixon \\\"would give me $2 for the gun\\\"; that he was present, along with Williams and Leonard Phillips, when Dixon test-fired' the gun behind the fire station, and he was seen at about 2:00 A.M., immediately after the shooting, sitting down in a booth in the Broadway Cafe. There is no evidence showing petitioner had been with codefendant Dixon prior to petitioner's conversation with the witness Williams, nor is there any evidence demonstrating petitioner accompanied Dixon when the latter entered the Broadway Cafe with gun in hand. Most significant, there is no direct evidence to indicate petitioner was aware of the purpose for which Dixon later used the gun, if such a purpose even existed at the time the request was made.\\nThe basis, therefore, for concluding there is \\\"probable cause\\\" petitioner aided and abetted codefendant Dixon in the murder of Stewart, rests squarely on the inferences that, at the moment petitioner told Williams to get a gun for Dixon who would pay $2 for it, he was fully aware of and acting in concert with Dixon's criminal intent, and that Dixon harbored such an intent at the time petitioner approached Williams.\\nIt is well established \\\"purely speculative inferences or conclusions do not constitute substantial evidence\\\", Lemons v. Holland, 205 Or. 163, 199, 284 P.2d 1041, 286 P.2d 656, 657, and \\\"an inference cannot stand in the face of another inference equally reasonable.\\\" Commercial Standard Ins. Co. v. Gordon's Transports, 6 Cir., 154 F.2d 390, 394; Stambaugh v. Hayes, 44 N.M. 443, 103 P.2d 640, 645; Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 339-340, 53 S.Ct. 391, 77 L.Ed. 819; Burdick v. Bongard, 256 Minn. 24, 28, 96 N.W.2d 868, 872. It appears to us the evidence adduced at the preliminary hearing is susceptible of a multitude of inferences, equally as reasonable as the one drawn by the magistrate below, and the choice of the inference drawn by him must have depended upon speculation. For example, we think it reasonable to infer petitioner was unaware of Dixon's plan (if such existed) when the former asked Williams to get a gun, and petitioner was getting the gun for Dixon because the latter was in fear of Stewart, the eventual victim; or petitioner was getting the gun to protect himself in what is admittedly a rough district. The character of the neighborhood in which the events occurred render several inferences plausible which might not, in a different locale, be at all sound.\\nWhere the evidence is as wholly inconclusive as we see it, it is impossible for us, in good conscience, to agree the magistrate was justified in concluding there existed \\\"probable cause\\\" to believe that petitioner was guilty of the offense for which he was charged. It does not appear that, at the preliminary hearing, there was more evidence for, rather than against, petitioner's guilt, or that the facts could lead a man of ordinary caution to conscientiously entertain a strong suspicion of Dodd's guilt.\\nWrit granted.\\nSTRUCKMEYER, C. J., and LESHER, J., concur.\"}"
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+"{\"id\": \"644015\", \"name\": \"STATE of Arizona, Plaintiff, v. Ray WACKER, Defendant\", \"name_abbreviation\": \"State v. Wacker\", \"decision_date\": \"1959-10-07\", \"docket_number\": \"No. 1144\", \"first_page\": \"247\", \"last_page\": \"253\", \"citations\": \"86 Ariz. 247\", \"volume\": \"86\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:18:35.504966+00:00\", \"provenance\": \"CAP\", \"judges\": \"PHELPS, C. J., and UDALL, JOHNSON and BERNSTEIN, JJ., concur.\", \"parties\": \"STATE of Arizona, Plaintiff, v. Ray WACKER, Defendant.\", \"head_matter\": \"344 P.2d 1004\\nSTATE of Arizona, Plaintiff, v. Ray WACKER, Defendant.\\nNo. 1144.\\nSupreme Court of Arizona.\\nOct. 7, 1959.\\nWade Church, Atty. Gen., H. B. Daniels, Asst. Atty. Gen., T. J. Mahoney, County Atty., Florence, for plaintiff.\\nEllis & Cox, Eloy, and Richard G. Clem-ans, Casa Grande, for defendant.\", \"word_count\": \"1942\", \"char_count\": \"11891\", \"text\": \"STRUCKMEYER, Justice.\\nRay Waclcer was informed against by the county attorney of Pinal County, Arizona, for wilfully failing to comply with the provisions of Amended Crop Regulation No. 7 of the Arizona Commission of Agriculture and Horticulture, a regulation designed to suppress and eradicate an insect pest known as the Pink Bollworm of Cotton. The defendant was specifically charged with failing after harvest to have crop remnants remaining in his cotton field shredded, chopped or cut and plowed under to the depth of four inches or more, a misdemeanor. On motion to quash the information, the trial court certified certain questions to this court, of which those deemed necessary to a proper resolution of the motion will be considered.\\nQuestion No. I\\n\\\"Is the delegation of Tower and Authority' as set forth in Sec. 3-103 of Title 3, Chapter 1, of the Agricultural Administration Act, A.R.S., 1956, unconstitutional as being a delegation of legislative power to an administrative agency, without a statement of policy, guides, limitations or restraint ?\\\"\\nThis question is directed to subsection 2, A.R.S. \\u00a7 3-103, which provides:\\n\\\"The commission may (2) Make and enforce all rules, regulations and orders necessary to prevent introduction of a crop pest or disease into the state, and to prevent propagation or dissemination of a crop pest or disease from one locality to another within this state, and to control, eradicate or to suppress a crop pest or disease.\\\"\\nThe question of proper standards to restrict the sphere of action of administrative agencies has twice been extensively considered in recent decisions of this court, with opposing results. In State v. Marana Plantations, 75 Ariz. 111, 252 P.2d 87, 90, we held invalid a statute which permitted the State Board of Health to enact rules to \\\"regulate sanitation and sanitary practices in the interests of public health\\\" and to \\\"protect and promote the public health and prevent disability and mortality\\\" as being a complete delegation of legislative power. The statute neither designated a specific evil toward which it was directed nor defined the course of conduct which was to be followed by the administrative agency. No determination of fact was required upon which the law was dependent for its operation prior to adoption of regulatory measures. No attempt was made to limit the area within which the Board's power was to operate. We further said:\\n\\\" It may safely be said that a statute which gives unlimited regulatory power to a commission, board or agency with no prescribed restraints nor criterion nor guide to its action offends the Constitution as a delegation of legislative power. The board must be corralled in some reasonable degree and must not be permitted to range at large and determine for itself the conditions under which a law should exist and pass the law it thinks appropriate.\\\" 75 Ariz. 111, 252 P.2d 87, 89.\\nOn the other hand, in Southwest Engineering Co. v. Ernst, 79 Ariz. 403, 291 P. 2d 764, we upheld the constitutionality of those sections of the groundwater code which required, upon a finding by the State Land Commissioner of a critical groundwater condition, a declaration of a critical groundwater area and then the drilling of further irrigation wells was by operation of law forbidden. We held that the legislature might condition the operation of a statute upon an administrative finding of an ultimate fact as long as an adequate guide for determining that fact was provided.\\nIn the instant case, the Act in question is more nearly comparable to the Ernst case. The legislature has defined by A.R.S. \\u00a7 3-201, crop diseases and crop pests:\\n\\\" 2. 'Crop diseases' includes all fungus, bacteria, virus or other organism of any kind and any unknown cause which is or may be found to be injurious, or likely to be or to become injurious to any domesticated or cultivated plant, or to the product of any such plant.\\n\\\"3. 'Crop pests' includes all insects, mites, spiders and other animal organisms found injurious, or likely to become injurious, to any domesticated, cultivated, native or wild plant, or to the product of any such plant.\\\"\\nIt thus becomes the duty of the Commission to make and enforce rules, regulations and orders necessary to prevent the introduction, propagation or dissemination and to control, eradicate or suppress only those pests and diseases which are found to be injurious or likely to become injurious to plants or their products.\\nA.R.S. \\u00a7 3-207 and- 3-208 further circumscribe the actions of the Commission and the State Entomologist in that the State Entomologist, prior to calling a hearing before the Commission, must believe-that \\\" a pest or disease \\\"\\u2022 menaces or threatens serious injury to the' horticultural or agricultural industry of this, state \\\" and the Commission must, find that such a menace exists. The Criterion, guide or standard upon which the law is to operate is the determination that a. crop disease or crop pest is not only injurious to plants and their products, but' that the disease or pest is such as to-menace or threaten serious injury to the: horticultural or agricultural industries.\\nA further question concerns the sufficiency of the standard to legally circumscribe the regulation-making power of the* Commission. We said in Haggard v. Industrial Commission, 71 Ariz. 91, 223 P.2d 915, that the extent and character of the.rules and regulations authorized to be-adopted by the legislature must be fixed ini accordance with common sense and the inherent necessities of governmental coordination. We also said in the Ernst case,, supra, 291 P.2d at page 775, that it is not. necessary for the legislature to lay down in: advance an exact mathematical formula, to which the administrative agency must adhere, for circumstances may vary which would serve to defeat the purpose of the-legislative enactment.\\nIn the Mara\\u00f1a case, the legislative enactment required only that the rules and' regulations of the State Board of Health bepromotive of public health. Here, by con trast, subsection 2, A.R.S. \\u00a7 3-103, supra, requires that the rules and regulations must be such as are necessary to prevent the introduction of a crop pest or disease in the state and to prevent propagation or dissemination from one locality to another. The governing standard established by the legislature is that of necessity. We recognize that the word \\\"necessity\\\" is not subject to precise definition and is not one which is susceptible to exact mathematical formula in advance. But here the circum.stances for the control, suppression and eradication of crop pests and diseases quite obviously vary from disease to disease, and pest to pest, even from locality to locality, .so that it is plainly impossible for the legislature to designate a precise rule of conduct in advance of administrative determination.\\nA contention similar to the argument presented was made in Carstens v. De Sellem, 82 Wash. 643, 144 P. 934, 937. To this argument, the Supreme Court of Washington said:\\n\\\" It is impracticable, if not impossible, for the lawmaking power to foreknow and specifically enumerate all contagious diseases and pests that may arise affecting the horticultural industry of the state. To meet the necessities caused by new diseases as they may occur, and prevent their spread, matters purely administrative may be left to administrative officers. If this were not so, the lives and property of the people might frequently be placed in jeopardy by the occurrence of some new contagion which the lawmaking branch of the government had not foreseen.\\\"\\nLaws somewhat similar to the one here under consideration have been upheld on the theory that the power to make rules is not exclusively legislative but essentially administrative and necessary to the complete administration of the law. Richardson v. Baldwin, 124 Fla. 233, 168 So. 255. And cf. Irvine v. Citrus Pest Dist. No. 2, 62 Cal.App.2d 378, 144 P.2d 857.\\nAs stated, the defendant, Ray Wacker, has been charged with the violation of the regulation requiring those in affected areas to have crop remnants after harvest remaining in the cotton fields shredded, chopped, and cut and plowed under to the depth of four inches or more. Such a requirement has been held constitutional where enacted by a legislature, Van Gunten v. Worthley, 25 Ohio App. 486, 159 N.E. 326, and within the power of an administrative body to promulgate. Wallace v. Feehan, 206 Ind. 522, 190 N.E. 438. Accordingly, we hold that the answer to the first question is in the negative.\\nCertified Question No. 2 is directed at the delegation of authority to the State Entomologist. Since the defendant, Ray Wacker, was charged with violation of a crop regulation adopted by the Arizona Commission of Agriculture and Horticulture, the question is purely hypothetical and will therefore not be answered. Certified Question No. 3 has not been argued by either party and accordingly we assume that it has been abandoned and therefore it will not be answered. Certified Question No. 4 was not argued by either party and accordingly we assume that it has been abandoned and therefore it will not be answered. We note that counsel for both parties have substituted and argued a different question from that certified by the court below. Neither counsel for the state nor defendant have authority by court rule or by statute to substitute a different question for that certified by the trial court. Two further questions are certified:\\nQuestion No. 5\\n\\\"Is the 'Notice of Adoption of Rules' filed November 21, 1958, in the office of the Secretary of State invalid as being in violation of Title 41, Chapter 6, Section 41-1004, in that said document was signed only by the State Entomologist as follows:\\n\\\"Arizona Commission of\\nAgriculture and Horticulture\\n\\\"(Name of Agency)\\n\\\"/s/ W. T. Mendenhall\\n\\\"(Signature of Officer)\\n\\\"State Entomologist\\n\\\"(Title of Officer)\\nQuestion No. 6\\n\\\"Is the regulation in question invalid as being in violation of Title 41, Chapter 6, Section 41-1005, in that there apparently is no certified copy of the rule adopted on file with the Secretary of State, certified by a member of the Commission of Agriculture and Horticulture.\\\"\\nBy A.R.S. \\u00a7 41-1004, every rule adopted by an agency shall be certified and filed with the office of the Secretary of State, or it shall be of no force or effect. By section 41-1005, no rule adopted or promulgated by an agency shall become effective until a certified copy has been filed in the office of the Secretary of State with certain exceptions not here material.\\nIt manifestly appears from the record before us, verified by an examination of the original in the Secretary of State's office, that although the Rule here in question was deposited and filed with the Secretary of State, it does not bear any certification whatsoever that it is a true and correct copy of the Rules promulgated by the Commission. Obviously, this does not constitute a compliance with the statutes, supra, and hence, the promulgated regulations are of no force or effect.\\nUnder the Administrative Review Act, the legislature has not spelled out what officer of any agency should sign the certification but undoubtedly it was contemplated that some officer in authority in- the Department (such as the chairman, secretary, or other qualified person) should certify that the Rule filed was a true copy thereof.\\nThis pronouncement constitutes a sufficient answer to both questions 5 and 6.\\nPHELPS, C. J., and UDALL, JOHNSON and BERNSTEIN, JJ., concur.\"}"
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+"{\"id\": \"650875\", \"name\": \"H. A. HARMAN and C. O. Byrd, Appellants, v. A. R. BYRD, Jr., and Helene K. Byrd, his wife; J. H. Byrd and Dian Byrd, his wife; Byrd Investment Company, a corporation; and A. R. Byrd, Jr., and J. H. Byrd, general partners of Byrd Mining Company, a limited partnership, Appellees\", \"name_abbreviation\": \"Harman v. Byrd\", \"decision_date\": \"1956-05-01\", \"docket_number\": \"No. 6033\", \"first_page\": \"266\", \"last_page\": \"275\", \"citations\": \"80 Ariz. 266\", \"volume\": \"80\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T23:49:17.530746+00:00\", \"provenance\": \"CAP\", \"judges\": \"LA PRADE, C. J., and WINDES, PHELPS and STRUCKMEYER, JJ., concur.\", \"parties\": \"H. A. HARMAN and C. O. Byrd, Appellants, v. A. R. BYRD, Jr., and Helene K. Byrd, his wife; J. H. Byrd and Dian Byrd, his wife; Byrd Investment Company, a corporation; and A. R. Byrd, Jr., and J. H. Byrd, general partners of Byrd Mining Company, a limited partnership, Appellees.\", \"head_matter\": \"296 P.2d 717\\nH. A. HARMAN and C. O. Byrd, Appellants, v. A. R. BYRD, Jr., and Helene K. Byrd, his wife; J. H. Byrd and Dian Byrd, his wife; Byrd Investment Company, a corporation; and A. R. Byrd, Jr., and J. H. Byrd, general partners of Byrd Mining Company, a limited partnership, Appellees.\\nNo. 6033.\\nSupreme Court of Arizona.\\nMay 1, 1956.\\nBoyle, Bilby, Thompson & Shoenhair, and Richard B. Evans, Tucson, for appellants.\\nUdall & Udall, Tucson, for appellees.\", \"word_count\": \"3504\", \"char_count\": \"20030\", \"text\": \"ELMER, Superior Court Judge.\\nAppellants, plaintiffs in the court below, filed an action against the appellees, defendants below, for an accounting, sought as the result of a joint venture which existed between them involving the operation of a group of mining claims in the Patagonia Mining District of Santa Cruz County, Arizona, known and referred to as the Duquesne Mine. Defendants filed their answer to the complaint, denying that plaintiffs were entitled to an accounting and set up the affirmative defense of compromise and settlement, and also filed their counterclaim, demanding an accounting. The issue of compromise and settlement was tried to the court without a jury. No findings and conclusions were demanded and the court, determining that defendants had satisfactorily established the defense of compromise and settlement, rendered judgment dismissing the complaint, with prejudice; dismissing the counterclaim, with prejudice; and awarding defendants their costs. Motion for new trial was made and denied. The appeal is from the judgment.\\nThe plaintiffs have assailed the judgment as not being justified by the evidence, contrary to the evidence and contrary to law. In order, therefore, to have an understanding of the dispute between the parties, it is necessary to review the evidence, which, because of its many ramifications, we set forth rather extensively in narrative formj substantially as follows:\\nPlaintiff C. O. Byrd and defendants A. R. Byrd, Jr. and J. H. Byrd are brothers, all of advanced years. Prior to October, 1944, defendant A. R. Byrd, Jr., owned a 70% interest in the Duquesne Mine, a group of some 76 claims. He assigned certain percentages of his interest to othei's of his family. The remaining 30% of the Duquesne was acquired by the plaintiffs in October, 1944; thereafter the properties were operated as a joint mining venture between the plaintiffs and defendant A. R. Byrd, Jr., acting on his own behalf and on behalf of the various members of the family, other than plaintiff C. O. Byrd. This continued until September 30, 1945, when a limited partnership called the Byrd Mining Com pany was organized and took over the 70% interest previously held by said A. R.'Byrd, Jr., and the joint venture continued between the plaintiffs and the defendant Byrd Mining Company, until May 6, 1946, at which time the Byrd Investment Company, a corporation, was formed and the limited partnership transferred its 70% interest to the corporation. The joint venture continued from that date between plaintiffs and the defendant corporation until May 21, 1951, at which time the Duquesne Mine and the Pride of the West Mine, which will be hereinafter mentioned, were transferred by lease and option contract to one James P. Nash.\\nIn November, 1945, plaintiff C. O. Byrd acquired title to the Pride of the West group of mining claims, which group was entirely surrounded by the Duquesne properties. In January, 1946, plaintiff C. O. Byrd offered in writing to- sell to defendant A. R. Byrd, Jr., a 70% interest in the Pride of the West claims for $1,500. This offer was accepted and he was paid $250 cash and the balance was evidenced by the promissory note of the Byrd Investment Company in the principal amount of $1,250, due on July 2, 1947, with interest thereon from date until paid at the rate of 6% per annum. On September 23, 1947, defendants paid $250 in cash on this note, and an additional $300 in cash on December 20, 1947. The contract provided that plaintiff C. O. Byrd would retain all royalties from ores produced and-shipped from the property to and including August 1, 1946; after that date defendant A. R. Byrd, Jr., was to receive 70% thereof and plaintiff C. O. Byrd the remaining 30%. It further provided that the seller would make and deliver a deed to the buyer, conveying the 70% interest, at any time on request. None was ever given or requested, but from August 1, 1946, until sometime in early 1948, when the mine ceased operating, the royalties from the operations were divided, as agreed. Operations were resumed by plaintiff C. O. Byrd, through a lessee, about July, 1948, and the shipments from the Pride of the West were made in said plaintiff's name; no royalties therefrom were paid to defendants. Defendant A. R. Byrd, Jr., complained of this to his brother C. O. Byrd about September, 1948, at which time C. O. Byrd advised A. R. Byrd, J-r., that he had defaulted on his agreement and had no further interest in the Pride of the West group. Thereafter C. O. Byrd continued to make shipments from this property in his own name and never made any accounting to anyone for any of the ores so shipped. It should be noted in passing no provision was made in the contract for a default or foreclosure, nor was such achieved by any legal proceeding. It also seems appropriate to observe here that at no time did the plaintiff Harman have any interest in the Pride of the West group.\\nThe evidence shows that plaintiff C. O. Byrd has a home on the mine, in which he resided. His brothers, defendants herein, resided in Tucson, where the office of their Company was maintained. Throughout the operations of the Duquesne Mine defendant A. R. Byrd, Jr., had charge thereof on behalf of the litigants; the books and records were kept at the Company offices in Tucson, proceeds from operations were received and banked there under his immediate supervision, although it does appear there were times when plaintiff C. O. Byrd either had the power to countersign their bank checks or to independently draw them. In any event, a dispute arose between the parties as early as 1946 concerning the handling of the Duquesne Mine funds, complaint being made by plaintiffs that the bookkeeping was improperly done; that Duquesne Mine funds were being improperly diverted to other enterprises in which the defendant brothers were interested and in which plaintiffs had no interest; and that funds were not being properly disbursed. An audit was made of the books by a Texas auditor selected by plaintiffs which showed defendants to be indebted to plaintiffs in the approximate sum of $13,000, which audit was promptly challenged by defendants as being inaccurate because, as they say, C. O. Byrd had changed the check stubs and that the auditor had, in accordance with his instructions, treated all money paid to him as receivables and not as money paid to him and his co-plaintiff. Defendants claimed a true audit would show plaintiffs indebted to them in the amount of approximately $20,000. A second audit was made by the same auditor as late as 1950 which showed about $30,000 owing plaintiffs, which audit was again disputed for like reasons. Defendants admitted this dispute continued right up to a short time before the deal with Nash, and plaintiffs, of course, contend it still continues.\\nThe negotiations with Nash for the sale of the Duquesne Mine extended over a period of several months, commencing in January, 1951. The agreed price for the Duquesne Mine was $200,000, with down payment of $60,000 in cash, but when Nash learned that the Pride of the West group was not included in the offer, his interest waned. C. O. Byrd had originally refused to permit the Pride of the West to go in on the deal, but finally did agree to include it. The contention of defendants and their evidence is that this was brought about in the following manner:\\nDefendant A. R. Byrd testified that a. short time prior to the sale to Nash, he called his brother, plaintiff C. O. Byrd outside of the office of the Byrd Investment Company in Tucson and informed him that he had been authorized by the'stockholders, of that corporation to make him (C. O. Byrd) a proposal in complete settlement of all claims he asserted against them, or any of them. He offered to forego any claim, they had to royalties collected by C. O. Byrd from the Pride of the West operation, the evidence of defendants showing that the 70% interest in the royalties claimed by them amounted to about $4,500. He further offered that if plaintiff C. O. Byrd would sell the Pride of the West group to Nash for $10,000, they would also forego any \\u2022claim which they might have or assert to their alleged 70% interest as owners therein. A. R. Byrd testified that in return C. O. Byrd was \\\"to settle all controversy and all \\u2022claims of every kind against any of us or against the company\\\", and further testified in effect that C. O. Byrd accepted this proposal.\\nDefendants contend that by reason of the above conversation a compromise and settlement agreement was thereby made. Corroborative evidence came from the lips of J. H. Byrd and Fred W. Fickett, an attorney. J. H. Byrd testified that he was not present at the meeting outside the office but lie was inside and that when they came bade in \\\"they agreed they had made a settlement\\\". Mr. Fickett, the only stockholder of defendant corporation other than family members, testified that after the contract was signed in his office, with all parties present except plaintiff Harman, Mr. Nash wanted to know who the $60,000 should be made payable to; that it was agreed it would be made to Fickett; that he had been handed a list of disbursements which the parties had instructed him to make therefrom, which included a $7,000 payment to \\\"be made to him on account of moneys he had loaned the defendants, secured by a mortgage on their interest in the Duquesne Mine; that at about that same time C. O. Byrd asked to be informed as to what the money was to be spent for, and, when shown the list, he objected to his bearing any part of the Fickett payment from his share; that thereupon the witness, with C. O. Byrd and A. R. Byrd, Jr., repaired to another room in his office, where C. O. Byrd was reminded he had previously seen the disbursement list, which included the $7,000 for Fickett, and had approved it; that his 30% of the $7,000 was only $2,100, whereupon he suggested the matter be arbitrated, and the brothers agreed another brother, Edward, could arbitrate it if he would; that Fickett then inquired whether or not this was their agreement, and C. O. Byrd stated to A. R. Byrd, Jr., \\\"well, let's let Ed arbitrate all of our differences.\\\" Thereupon, Fickett quoted A. R. Byrd as saying:\\n\\\" 'All of our other differences have been settled; we have given you the Pride of the West and waived our claim to it and you have taken it in settlement of all our differences and if our differences aren't settled, we are not going through with the Nash deal and if the Nash deal goes through it goes through on that basis and is that O.K.', and C. O. said 'It is O.K.'.\\\"\\nC. O. Byrd has denied that the conversation outside the office ever took place; he has denied the testimony of his brother J. H. Byrd as to his coming back into the office and stating, in effect, that the differences had been settled; he testified in effect that as to the statement which Fickett heard A. R. Byrd make ended with A. R. Byrd, Jr., saying \\\"we will call the Nash deal off\\\" and that his answering O.K. meant that he was agreeable to calling the deal off. He has denied that there was ever any compromise and settlement effected.\\nThe brother Edward refused to arbitrate the differences over the $2,100 and this sum was eventually paid by Fickett to the defendants.\\nIt is to be here observed that subsequent to the closing of the Nash deal C. O. Byrd continued to demand a settlement; that A. R. Byrd, Jr., wrote him a number of letters, admitted in evidence, which indicate a desire to compose differences, refer to questions which A. R. Byrd, Jr., desired the auditor to answer before he could give C. O. Byrd a reply, and fail to mention that a compromise was effected at the time of the sale to Nash. It is further to be noted that at no time did the directors or stockholders of Byrd Investment Company adopt a resolution with respect to the compromise said to have been effected by A. R. Byrd until June 2, 1954, the day before the trial, when the directors adopted a resolution ratifying the act.\\nAs hereinbefore stated, the appellant Harman was a partner with appellant C. O. Byrd in the 30% interest in the Duquesne Mine; he had no interest in the Pride of the West and received no part of the sale price thereof. In 1947 he informed appellees he had given Duane Bird, an attorney in Nogales (not related to the parties herein), full power of attorney to act for him in all matters pertaining to the management of the Duquesne Mine. There is no evidence to show Mr. Bird ever accepted the appointment or had any dealings whatever with the parties to this action.\\nIt is admitted that Harman had given C. O. Byrd a deed to his interest in the Duquesne Mine some year and a half prior to the Nash sale and C. O. Byrd testified that he was fully authorized to represent the Harman interest; Mr. Harman lived in Texas, C. O. Byrd at the mine and throughout their partnership in the Duquesne C. O. Byrd had been the active partner, acting on behalf of both of them. Mr. Harman did not execute the contract with Mr. Nash;. C. O. Byrd placed his deed from Harman of record just in time to consummate the Nash deal.\\nThere are three assignments of error, the first of which is that there was no corroboration of the compromise and settlement agreement; that the evidence thereof was. contradicted and was wholly insufficient to. support the judgment. Plaintiffs urge the proposition of law that a party who relies, upon a compromise and settlement agreement must prove its existence by a preponderance of the evidence and that the- uncorroborated testimony of one party, contradicted by the other, is insufficient.\\nWe are of the view that there was ample corroboration of an agreement of compromise from the testimony of Fickett and J. H. Byrd, heretofore related. This being so it is unnecessary to discuss or rule upon the proposition as to whether in this jurisdiction it is or is not the law that such corroboration is necessary.\\nThe second assignment is that there was no evidence that plaintiff Harman at any time entered into an agreement of compromise and settlement; that he at any time authorized his co-plaintiff, C. O. Byrd, to enter into any such an agreement on his behalf or that he is bound by any agreement that may have been made. The proposition of law urged in support of this assignment is that no person can be bound by an agreement of compromise and settlement if he is not a party thereto.\\nThe problems presented by this assignment are:\\n(1) Whether the agency of C. O. Byrd to act for Harman was established by his (Byrd's) testimony and the surrounding facts and circumstances; and\\n(2) Whether there was any consideration passing to Harman as a result of the compromise agreement.\\nIt is argued that Harman had no interest whatsoever in the Pride of the West group; that even admitting for the purpose of argument that C. O. Byrd had made a settlement, the only consideration exchanged had application to differences between C. O. Byrd and his brothers because the only forbearance of defendants was to surrender their claim to royalties from the Pride of the West Mine retained by C. O. Byrd and their surrender of their alleged 70% ownership interest in that group, by permitting C. O. Byrd alone to retain all of the $10,000 purchase price thereof which Nash agreed to pay. Plaintiffs point out that as early as 1946 Harman had complained of the handling of the funds from operations of the Duquesne Mine by the defendants and had gone so far as to appoint Duane Bird to act for him.\\nWe have already decided, in the case of Daly v. Williams, 78 Ariz. 382, 280 P.2d 701, that when the fact of agency rests in parol, it may be established on a trial by the testimony of the agent himself, and that while the agent's extrajudicial statements are not admissible to prove the fact of his agency, such fact may, when it rests in parol, be established on the trial by his testimony. As hereinbefore set forth, C. O. Byrd testified he was fully authorized to bind Harman; the latter had deeded his interest in the Duquesne Mine to C. O. Byrd a long time prior to the Nash deal. C. O. Byrd testified he was holding it for Harman's benefit. This evidence justified the trial court in finding that Harman had authorized C. O. Byrd to act for him concerning all his interest resulting from his dealings with the Duquesne Mine.\\nAs to a lack of consideration flowing to Harman, it must be remembered that these litigants had been at odds for some years. The opportunity to conclude these differences was presented when Nash contracted to buy both properties, the Duquesne Mine being included therein at a price of $200,000. If, despite his deed to C. O. Byrd, Harman still owned his 15% interest in the Duquesne Mine, his gross share of the price would be $30,000. The necessity of selling the mine to permit the owners to realize something therefrom was apparently impelling. The evidence indicates that the operations of the joint venture on the Duquesne Mine had resulted in failure; at the time of the contract with Nash numerous and sizeable debts were unpaid and Government liens had been filed they had only a few days to settle. From the foregoing it appears that the trial court was warranted in ruling that Harman received the benefit from a sale of the Duquesne Mine and this was sufficient consideration for the settlement agreement so far as Harman's interests were concerned.\\nThe third and last assignment of error is that the trial court erred in entering judgment for the defendants for the reason there was no sufficient consideration for the alleged agreement of compromise and settlement, in that any claim defendants made to the Pride of the West Mine was baseless, not made in good faith, and without foundation in law and in equity.\\nThe proposition of law relied on by plaintiffs is that unless there is a bona fide dispute upon which to base a valid compromise, the claim falls within the class of baseless claims and does not constitute a valuable consideration sufficient to support an agreement of compromise and settlement. We agree with this legal proposition and have so held in Brecht v. Hammons, 35 Ariz. 383, 278 P. 381. But it is our view that the trial court could well find there was a bona fide dispute between C. O. Byrd and the defendants with regard to the Pride of the West Mine. C. O. Byrd pursued no legal remedy whatever to terminate the contract he made with his brother for the sale of the 70% interest in that property. While it is true the note evidencing a portion of the purchase price was not paid in cash, nothing was ever done by C. O. Byrd to legally collect it, nor was anything legally done by him to terminate the defendants' right to receive royalties from ore production from that property. There was nothing in the contract for the sale of the 70% interest to A. R. Byrd, Jr., which provided for a forfeiture in the event of nonpayment of the purchase price or any other breach. While C. O. Byrd might have prevailed in an action for rescission, he did not have the right to arbitrarily declare a forfeiture and the claim of the defendants was not, therefore, a baseless claim.\\nWe have carefully considered all of the record in this case and finding no error therein, the judgment of the trial court is affirmed.\\nLA PRADE, C. J., and WINDES, PHELPS and STRUCKMEYER, JJ., concur.\\nUDALL, J., having disqualified himself, the Honorable CHARLES P. ELMER, Judge of the Superior Court of Mohave County, participated in his stead in the determination of this appeal.\"}"
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+"{\"id\": \"650911\", \"name\": \"Marshall L. MITCHELL and Pearl M. Mitchell, husband and wife, Appellants, v. Magnus EMBLADE, Appellee\", \"name_abbreviation\": \"Mitchell v. Emblade\", \"decision_date\": \"1956-06-26\", \"docket_number\": \"No. 6094\", \"first_page\": \"398\", \"last_page\": \"405\", \"citations\": \"80 Ariz. 398\", \"volume\": \"80\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T23:49:17.530746+00:00\", \"provenance\": \"CAP\", \"judges\": \"LA PRADE, C. J., and UDALL, PHELPS and STRUCKMeYeR, JJ., concur.\", \"parties\": \"Marshall L. MITCHELL and Pearl M. Mitchell, husband and wife, Appellants, v. Magnus EMBLADE, Appellee.\", \"head_matter\": \"298 P.2d 1034\\nMarshall L. MITCHELL and Pearl M. Mitchell, husband and wife, Appellants, v. Magnus EMBLADE, Appellee.\\nNo. 6094.\\nSupreme Court of Arizona.\\nJune 26, 1956.\\nShimmel, Hill & Cavanagh, Phoenix, and Westover & Mansfield, Yuma, for appellants.\\nRolle, Jones & Pace, Yuma, for appellee-\", \"word_count\": \"2550\", \"char_count\": \"15051\", \"text\": \"WINDES, Justice.\\nMagnus Emblade brought suit against Marshall L. Mitchell and Pearl M-Mitchell, husband and wife, seeking damages resulting from the collision between a motorcycle operated by plaintiff and an automobile driven by defendant Pearl M. Mitchell. The collision occurred on 4th Avenue (Highway 80) between 14th and 15th Streets in Yuma, Arizona, on March 12, 1954. Mrs. Mitchell, while proceeding north on 4th Avenue, attempted to make a left turn into a driveway leading to a parking area near her husband's place of work and in so doing collided with plaintiff who was proceeding south. The basis of plaintiff's suit is the alleged negligence of Mrs. Mitchell in the operation of her automobile. Defendants claimed contributory negligence on the part of the plaintiff. The matter was tried to a jury which returned a verdict in favor of plaintiff in the sum of $15,000. From this verdict and judgment entered thereon and denial of motion for new trial defendants appeal.\\nAt the trial plaintiff testified he was driving at a speed of approximately 30 miles per hour and that on the west side of 4th Avenue between 12th and 13th Streets (approximately two blocks from the scene of the accident) there was a highway sign designating the speed limit to be 35 miles per hour. The evidence was in conflict as to the existence of the sign at this location. Plaintiff also testified that on the west side of 4th Avenue at 8th Street there was a 25-mile per hour sign for southbound traffic and a like sign on the east side of 4th Avenue at 16th Street for northbound traffic. Over defendants' objection the court admitted in evidence an ordinance of the City of Yuma passed in 1946 and a resolution of the state highway commission adopted in 1948 fixing a maximum speed limit in the area where the accident occurred at 35 miles per hour. The resolution was apparently adopted under the power given the highway commission by section 59-105(6), A.C.A.1939 [A.R.S. \\u00a7 18-106, subd. 7], to\\n\\\"exercise complete and exclusive control and jurisdiction of the state highways, and prescribe such rules and regulations to govern the use of all state highways as it may deem necessary for public safety and convenience 3)\\nThe undisputed evidence shows this area to be a business district as defined by section 66-151q, 1952 Supp., A.C.A.1939 (A. R. S.1956, \\u00a7 28-107).\\nDefendants' contention in the trial court and in this court is that the legislature in 1950 enacted a highway code which established a maximum speed limit of 25 miles per hour in business districts and this law operated to supersede the prior ordinance and the highway commission resolution. At the times the ordinance and resolution were passed and adopted, the statutes fixed the maximum speed limit in business districts at 20 miles per hour, section 66-101, A.C.A.1939, and gave local authorities power to increase this maximum. Section 66-102, A.C.A.1939. By the new act passed in 1950 these sections were repealed and a maximum limit of 25 miles per hour provided for business districts, section 66-157a, 1952 Supp., A.C.A.1939 (A.R.S.1956, \\u00a7 28-701), and local authorities with the approval of the highway commission were given the power to increase this limit. Section 66-158a, 1952 Supp., A.C.A.1939 (A.R. S. 1956, \\u00a7 28-703). The new statute like wise changed the definition of business districts. Section 66-151q, 1952 Supp., A.C.A. 1939 (A.R.S.1956, \\u00a7 28-107).\\nIt is our view that the later law changing the definition of business districts and changing speed limits would operate to render inoperative and ineffective the prior ordinance and resolution. A statute passed by the legislature which is in conflict with a prior ordinance prevails over the ordinance, as well as over any resolution of the highway commission. Harshaw v. Kansas City Public Service Co., 154 Kan. 481, 119 P.2d 459; Pleasant Grove City v. Lindsay, 41 Utah 154, 125 P. 389. Cf. Clayton v. State, 38 Ariz. 135, 297 P. 1037. The legal speed limit in the area was an important question. The judge gave no instruction on this subject except to tell the jury no person shall drive at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. The documents cannot be used to establish a 35-mile speed limit in the business district where this accident occurred. The. plaintiff testified he was driving about 30 miles per hour. In effect the jury was told by the admission of these documents that this was a legal rate of speed in accordance with established municipal law and legal action by the highway commission. The jury might well say that whether the 35-mile sign existed, it was reasonable and prudent to drive at not to exceed the 35-mile limit designated in the ordinance and resolution. Their admission was prejudicial to the defendants on the question of contributory negligence.\\nSince the case must be retried for this error, we will pass upon the other claimed errors for the guidance of the trial court. The defendants asked and the trial court refused two instructions: one proposing to tell the jury that where no special hazards existed the lawful speed in a business or residential district was 25 miles per hour; and the other submitting to the jury the question of fact whether the area was a business district and, if such be the case, that the speed limit was 25 miles per hour. Although the undisputed evidence established that this was a business district, the first instruction was incorrect if there was a 35-mile sign on plaintiff's side of the road between 12th and 13th Streets. It was correct only in the event the sign was not there. Speed highway signs are for the purpose of advising the driving public and a driver is entitled to rely on their authenticity. He cannot be expected nor required to investigate and determine whether such signs are placed there in the regular course of legal procedure. Comfort v. Penner, 166 Wash. 177, 6 P.2d 604; Wood v. Chicago, Milwaukee, St. Paul & Pacific R. Co., 45 Wash.2d 601, 277 P.2d 345, 283 P.2d 688. He has a right to presume it was legally placed. In the event there be any legal irregularity in establishing such signs, absent other conditions amounting to negligent speed, he cannot be held negligent for having violated the speed limit so long as he complied with the requirement of the sign. Wood v. Chicago, Milwaukee, St. Paul & Pacific R. Co., supra; Clinkscales v. Carver, 22 Cal.2d 72, 136 P.2d 777. If there was a sign advising plaintiff that the speed limit was 35 miles per hour, he cannot be held to be negligent merely for driving 30 miles an hour. If there was no sign, the speed limit by statute was 25 miles per hour and driving 30 miles per hour was negligence per se; and if this contributed to the accident, plaintiff could not recover. The instruction submitted to the court did not provide for the existence or nonexistence of the 35-mile speed limit sign and were therefore properly refused.\\nDefendants suggest that even if the instructions submitted on speed were erroneous, it was the obligation of the court to give a correct instruction. The court did advise the jury that the speed must be such as is prudent under the conditions. This is a correct abstract statement of the law. If the defendants desired a more explicit instruction, it was their obligation to submit a correct one applicable to the possible facts. Southern Arizona Freight Lines v. Jackson, 48 Ariz. 509, 63 P.2d 193; Kinman v. Grousky, 46 Ariz. 191, 49 P.2d 624.\\nThe defendants requested an instruction that damages for medical expenses and pain and suffering were not subject to income taxes and that, in the event the jury found for the plaintiff, it could take into consideration this fact in fixing the amount of plaintiff's damages. The court refused the instruction and error is assigned.\\nThis is a question of recent origin. Only a few jurisdictions have passed thereon. In Missouri such an instruction was held proper. Dempsey v. Thompson, 363 Mo. 339, 251 S.W.2d 42. The appellate court of Illinois followed the Dempsey case in Hall v. Chicago & N. W. Ry. Co., 349 Ill.App. 175, 110 N.E.2d 654. That case was taken to the supreme court of Illinois, Hall v. Chicago & Northwestern Railway Company, 5 Ill.2d 135, 125 N.E.2d 77, 85, which reversed the appellate court, stating:\\n\\\"Further, the jury was correctly instructed on the measure of damages, being told specifically the elements that they should consider in awarding damages. Hence, unless it be assumed that they might not follow the instructions, there could be no purpose in mentioning anything about the award not being subject to Federal income tax. However, by the very nature of the jury system this court cannot indulge the presumption that juries do not follow the instructions of the courts. The Supreme Court of the United States, in Wilkerson v. McCarthy, 336 U.S. 53 at page 62, 69 S.Ct. 413 at page 418, 93 L.Ed. 497, said: 'Courts should not assume .that in determining those questions of negligence juries will fall short of a fair performance of their constitu tional function. In rejecting a contention that juries could be expected to determine certain disputed questions on whim, this Court, speaking through Mr. Justice Holmes, said: \\\"But it must be assumed that the constitutional tribunal does its duty, and finds facts only because they are proved.\\\" [Citing case.]' It may be conceded that the possibility of harm exists if the jury is left uninformed on this matter; on the other hand, it is conceivable that the plaintiff could be prejudiced if they were told of this law. In either case, however, the possibility is speculative and conjectural, and such being the case, it is better to instruct the jury on the proper measure of damage and then rely on the presumption that they will properly fulfill their duty by following said instructions.\\n\\\"It does not necessarily follow that the argument is proper because it correctly states the law. For if the defendant's argument is proper on the basis that it tells the jury what the law is then what objection can there be for plaintiff's counsel to state that the expense of trial is not provided for in the instruction concerning damages, that the cost of medical witnesses is not paid by the defendant, that the expense of taking depositions, as well as court reporting at the trial, must be borne by the individual litigants, that the fees of plaintiff's attorney are not recognized as an element, that the defendant can deduct any award it pays from its income and excess profits tax return and that the amounts of awards are allowed as expenses in providing for increasing railroad fares?\\\"\\nTexas by way of dictum approved the Dempsey case. Texas & N. O. R. Co. v. Pool, Tex.Civ.App., 263 S.W.2d 582. When the question came before the same court for legitimate decision, it reversed its original dictum. Missouri-Kansas-Texas R. Co. of Texas v. McFerrin, Tex.Civ.App., 279 S.W.2d 410, 419. The Texas court of civil appeals sustained the trial court in refusing such an instruction and said:\\n\\\"It assumes that the jury will not confine itself to the evidence nor the court's charge but will consider and take into account matters not mentioned therein. This is to assume that there will be misconduct on the part of the jury, an assumption in which we cannot indulge. There was no necessity for the jury to be informed regarding the income tax law in order to properly answer the damage issues and we believe there was no error in refusing to give the requested charge.\\\"\\nThe court of appeals of Ohio affirmed the trial court's refusal to give such an instruction upon the ground that it was instructing on a matter not pertinent to the issues and would complicate the trial by requiring an intricate discussion of tax and nontax liabilities. Maus v. New York, Chicago & St. Louis Railroad Co., Ohio App., 128 N.E.2d 166. Indiana could find no reason to disapprove the Dempsey case but stated that the only prejudice which could result was an excessive verdict and, since the verdict was not excessive, the trial court would not be reversed for failing to give such an instruction. Highshew v. Kushto, Ind.App., 131 N.E.2d 652.\\nReviewing the courts that have passed upon this question, we are of the view that Illinois, Texas and Ohio are correct in requiring that the case be tried \\u00bbon the issues and presented to the jury with a correct measure of damages, of which the incident of income tax has no part. We would prefer to assume that the jurors to the best of their ability will follow the instructions given and will not depart from the issues and the law as announced.\\nPlaintiff alleged that as a result of the accident he was incapacitated to the extent he was unable to care for his business and his earnings were thereby reduced. As proof on this issue the court over objection permitted the plaintiff to testify that from January 1 to December 8, 1954, when the plaintiff sold the business, he sustained a loss of $3429.75. It developed that this information was gained from the accountant employed by the plaintiff who prepared from the books a profit and loss statement. The plaintiff did not keep the books and had no knowledge concerning bookkeeping. It is apparent, therefore, that the plaintiff was in effect testifying to the contents of the books of account and not from any knowledge of his own independent of what was reflected in the books. After thi\\\"s situation was developed, defendants moved to strike plaintiff's testimony. An adverse ruling from the trial court is assigned as error.\\nThe best evidence of what the books reflect are the books and the entries therein. When the books exist, one having no independent knowledge of the facts related therein cannot establish such facts by oral testimony. 32 C.J.S., Evidence, \\u00a7 792 d, p. 720. The court should have stricken this oral testimony and required the plaintiff to submit the primary evidence avail- able to prove no profits if the fact existed or the testimony of a competent witness who has examined and is familiar with the contents of the books.\\nDefendant placed in evidence the profit and loss statement. Included therein under \\\"Expenses\\\" is an item of $546.40 for legal fees. Defendants offered to prove that this item was not a business expense, but was for litigation not connected with operation of the business. The court refused to allow the proof. This was error. If the item was beyond the sphere of plaintiff's business operation, it had no bearing on the question of his decreased earning capacity.\\nJudgment reversed with directions for new trial.\\nLA PRADE, C. J., and UDALL, PHELPS and STRUCKMeYeR, JJ., concur.\"}"
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+"{\"id\": \"651653\", \"name\": \"Donald H. TENNENT and Eleanor J. Tennent, husband and wife, Appellants, v. Steve LEARY, d/b/a Steve Leary Co., James Kesicki and Wanda Kesicki, husband and wife, Appellees\", \"name_abbreviation\": \"Tennent v. Leary\", \"decision_date\": \"1957-03-26\", \"docket_number\": \"No. 6229\", \"first_page\": \"67\", \"last_page\": \"75\", \"citations\": \"82 Ariz. 67\", \"volume\": \"82\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T22:34:33.925445+00:00\", \"provenance\": \"CAP\", \"judges\": \"WINDES and STRUCKMEYER, JJ., concur.\", \"parties\": \"Donald H. TENNENT and Eleanor J. Tennent, husband and wife, Appellants, v. Steve LEARY, d/b/a Steve Leary Co., James Kesicki and Wanda Kesicki, husband and wife, Appellees.\", \"head_matter\": \"308 P.2d 693\\nDonald H. TENNENT and Eleanor J. Tennent, husband and wife, Appellants, v. Steve LEARY, d/b/a Steve Leary Co., James Kesicki and Wanda Kesicki, husband and wife, Appellees.\\nNo. 6229.\\nSupreme Court of Arizona.\\nMarch 26, 1957.\\nArthur Goldbaum and Jo Ann D. Diamos, Tucson, for appellants.\\nJohn W. Ross and Paul J. Cella, Tucson, for appellees.\", \"word_count\": \"3062\", \"char_count\": \"17752\", \"text\": \"PHELPS, Justice.\\nThis is an action to recover the sum of $1,500 earnest money paid to Leary by plaintiff Tennent in a real estate transaction wherein Tennent and his wife submitted to Leary, a real estate broker, a written offer to purchase a residence listed for sale with him by one James C. Kesicki. Both Kesicki and Leary were made party-defendants. The court entered judgment for defendants from which plaintiff appeals. The parties will be hereinafter designated by their last names.\\nThe evidence does not disclose the sale price for which the property was listed with Leary but the testimony of Kesicki justifies the inference that it was listed at $17,500. Tennent's offer, which was made in writing, was for the sum of $17,000, upon the condition that Kesicki, at his expense, would install a new 5,000 C.F.M. cooler with water pump and run a gas line ready for meter hook-up. This offer was executed on November 17, 1953 following a visit by Tennent and wife to the premises involved on November 15 or 16, at which Leary was holding an open-house for the purpose of contacting prospective purchasers.\\nMrs. Cameron, a licensed real estate agent, working for Leary, met the Tennents while they were visiting the premises involved. On November 17, at about 11 o'clock at night, the Tennents executed the written offer here involved and delivered it to Leary, together with their check for $1500 as earnest money.\\nOn the next morning, November 18, Mrs. Cameron presented the offer to Mr. Kesicki for acceptance and he endorsed on the back thereof the following:\\n\\\"November 18, 1954\\n\\\"We agree to the sale of the above-described property at the above terms except for the following: We will install a new cooler of not less than 5000 C.F.M. and water cooler at purchasers' expense. Purchaser to pay for cooler at cost price to builder $170.00 approximately.\\\"\\nThereafter on the same day Tennent was informed by a message sent to his home by Mrs. Cameron that his presence was desired at Leary's office concerning developments relative to his offer to purchase the Kesicki property.\\nHe went to the office at 2:00 or 3:00 o'clock p. m. on the 18th. He was then informed by Mrs. Cameron that Mr. Kesicki had rejected his offer and had made a counter-offer as above set forth. After discussing the matter for a few minutes they then went into Leary's office, where, among other things, the following respective statements were made:\\nMrs. Cameron testified that:\\n\\\"Mr. Leary told Capt. Tennent that I (Mrs. Cameron) would go back as soon as Capt. Tennent\\u2014 * . * _ * I would go back to Mr.- Kesicki and I would keep on working and trying to get the house for him since he wanted it, at his own terms, and that means including a cooler.\\\"\\nShe stated that as Capt. Tennent was leaving the office he picked up all four copies of his written offer of purchase and,\\n\\\" said he would show all of the papers to the lawyer, and that he would get in touch with us in an hour.\\\"\\n\\\"Yes, Mr. Leary said (to Tennent) it was all right for Capt. Tennent to take all of the copies of the offer, and I (Mrs. Cameron) said that if I were going to go back to Mr. Kesicki and get his signature I would need the original copy, So I took the original copy out of the batch and handed them back, handed the papers back to Capt. Tennent.\\\" ;\\nMr. Leary told Capt. Tennent his lawyer would find nothing wrong with the papers ;\\n\\\"Q. Capt. Tennent heard you state that you were going back to see Mr. Kesicki, did he? A. Yes, he did.\\n\\\"Q. He was present at the time?\\nA. He was present.\\n\\\"Q. Did he object or tell you not to go back to Mr. Kesicki ? A. He never said not to go back\\\".\\nShe also testified that he never told her to go back. In other words, he never said to go back to Kesicki and he never told her not to go back although he knew she was going to go back and try to persuade Kesicki to accept Tennent's original offer. Mrs. Cameron further testified that:\\n\\\" Mr. Leary told him (Tennent) that he would wait for an hour for his call, and if there was nothing wrong, I could go back to Mr. Kesicki and start working on the deal again, trying to get him the house.\\\"\\nAnd that as Tennent was about to leave Leary got up:\\n\\\" and asked Capt. Tennent if he wanted his check back, if he wanted his money back.\\\"\\nShe was then asked:\\n\\\"Q. And what did Capt. Tennent say to that? A. Capt. Tennent said no, he didn't want the check back, he liked the property and wanted the property.\\\"\\nBoth Leary and Capt. Tennent corroborated this last statement.\\nLeary testified with respect to this last incident as follows:\\n\\\"Q. As you approached the door and he was leaving, was anything in particular said regarding the check? A. The check we \\u2014 at the time that I offered him that check back we stood up and were \\u2014 and he was going out, and I said to him, 'Capt. Tennent, do you want your check back?' 'Oh, no,' he says, T want the property'. (Leary replied) 'Okay we will get it for you or try' \\\".\\nWhen Tennent was asked if Leary had made these statements in his presence his answer was: \\\"I don't remember him saying that\\\".\\nThus we have the positive testimony of both Leary and Cameron, plus the corroborative testimony of Mrs. Coutlee, an employee in Leary's office, who testified as follows:\\n\\\"Well, just as Capt. Tennent was fixing to leave the office Mr. Leary asked him if he wanted his check back and he said, no.\\\"\\nWhen asked what else he said, she replied:\\n\\\"He said he would let him (Leary) know in about an hour, he would call him back, and if he \\u2014 and as he went out the door Mrs. Cameron said to him, 'well' she says, 'I will go back and see if I can't get this on the original deal and get the Kesickis to accept the original proposition' \\\".\\nMrs. Cameron testified she waited until \\\"much later\\\" before resubmitting the original offer to Kesicki and finally got his acceptance in writing.\\nThe testimony concerning the school situation was that when Tennent informed Leary that Mrs. Tennent was unhappy about available transportation to the school, Leary then and there phoned the superintendent or proper official of the school and was informed that the authorities would route the bus one block closer to the premises. Mrs. Tennent was then sitting outside Leary's office in the Tennent car. Tennent, so far as the record discloses, made no suggestion that this was not satisfactory to him or that he would bring Mrs. Tennent inside the office to express her position in the matter. On the same occasion, at the request of Tennent, Leary procured the consent of the mortgagee to extend the mortgage against the home from fifteen years to a twenty-year period.\\nIn summary, Tennent's refusal to accept the check stating he didn't want it; that he wanted the property; that he liked the property; and his statement that he wanted to take the written offers to his attorney for him to look over them; Mr. Leary's statement that it was all right for him to do so; that he would find nothing wrong with them; Tennent's statement that he would let them hear from him in an hour and being advised that unless they heard from him within an hour they would resubmit his original offer to Kesicki and seek to procure his acceptance, in the absence of a statement from Tennent directing them not to do so until further advice from him, we believe when considered together is clearly susceptible of the interpretation given it by the trial court.\\nIn order to more accurately state our holding in the case relative to the Statute of Frauds, as evidenced in our opinion handed down December 13, 1956 and reported in 304 P.2d 384, we are revising our original opinion as follows:\\nCounsel for appellant assigns as error that the authorization of the agent to resubmit Tennent's written offer of purchase, had to be in writing. So far as material here the written contract provides as follows:\\n\\\"11-17-54\\n\\\"The undersigned purchaser hereby agrees to purchase the above described property at the price and under the terms and conditions herein set forth. Agent is hereby given 2 days to obtain the seller's acceptance hereof during which period this offer is irrevocable and upon such acceptance this instrument becomes a binding contract on the purchaser's part. In the event of any default on the purchaser's part, all sums paid by the purchaser shall be forfeited as liquidated damages or, at seller's option, this agreement may be enforced by specific performance or other appropriate remedy.\\nDonald H. Tennent Eleanor J. Tennent\\\" Purchaser\\nThat Kesicki's counter-offer to Tennent's offer to purchase his property was in law a rejection of Tennent's offer there can be no doubt. Hargrave v. Heard Inv. Co., 56 Ariz. 77, 80, 105 P.2d 520. This did not, however, affect in anywise Tennent's written authorization to Leary to continue to negotiate with Kesicki for the purchase of said property upon the terms of his written offer. The counter-offer of Kesicki had no more legal effect upon Leary's authority to continue, for a period of two days, to procure the acceptance of Tennent's offer than if Kesicki had simply said: \\\"I will not accept $17,000 for my property.\\\" Certainly no one would argue that such a statement whether oral or in writing, would revoke Leary's written authority to continue to urge Kesicki to accept Tennent's written offer, or that the original written offer could not again be resubmitted. There could not possibly be any legal efficacy in requiring the same offer to be rewritten before submitted as counsel seems to argue.\\nAs above indicated the original offer of purchase by Tennent was in writing, and in that offer there was contained a provision which gave Leary two days in which to obtain Kesicki's acceptance thereof. It further provided that during such time the offer was irrevocable. This constituted an agreement with Leary that his authority to close the sale with Kesicki was binding upon Tennent for a period of two days without power of revocation. Leary's efforts to procure Kasicki's acceptance, his securing at Tennent's request, to have the mortgage upon said property extended from fifteen to twenty years, and his efforts in procuring the rerouting of the school bus to pass closer to the property was adequate consideration to support such agreement. He actually procured the acceptance in one day.\\nIn addition to the above written authorization by Tennent for Leary to continue as his agent in his efforts to procure said property, we set forth in our original opinion in this case, supra, acts, conduct and statements of Tennent to Leary and Mrs. Cameron and their responses thereto which we believe, clearly supported the trial court's judgment in which it necessarily found that it was Tennent's intention to be bound by said written agreement with Leary and to have his written offer resubmitted to Kesicki. Both the authority of the agent to resubmit and the offer to purchase as resubmitted, and the acceptance by Kesicki being in writing, the contention that it violates the Statute of Frauds is without merit.\\nWe do not believe there is any merit to appellant's contention that Kesicki should have been required to offset the amount subsequently received from the property a few weeks thereafter when sold to another purchaser. The contract between Tennent and Kesicki provided that in the event the purchaser defaulted in his performance the earnest money should be forfeited to Kesicki as liquidated damages, and it further provided that in the event of such default and forfeiture, Kesicki was to pay to Leary 50% of said earnest money, or $750, as commission, leaving for Kesicki the same amount.\\nWe find the rule to be that although forfeitures are not favored in the law, if the agreement is that such forfeiture was intended as liquidated damages, such contract relating thereto, will be enforced unless the amount agreed to be forfeited would be so grossly excessive as to be entirely disproportionate to any possible loss that might have been contemplated, so that to enforce it would shock the conscience of the court. Armstrong v. Irwin, 26 Ariz. 1, at page 9, 221 P. 222, 32 A.L.R. 609; Jacobson v. Swan, 3 Utah 2d 59, 278 P.2d 294, 298; 15 Am.Jur., Damages, Sections 248, 249.\\nAs above pointed out Kesicki was obligated to pay Leary $750 of the $1,500.. He later sold the property for $500 less than Tennent offered to pay for it and he was unquestionably required to pay another commission for that sale. Hence, the forfeiture is not only not disproportionate to the loss sustained by Kesicki but does not fully compensate for his actual Out of pocket expense.\\nJudgment affirmed.\\nWINDES and STRUCKMEYER, JJ., concur.\"}"
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+"{\"id\": \"713812\", \"name\": \"STATE of Arizona, Appellee, v. Roger Lynn SMITH, Appellant\", \"name_abbreviation\": \"State v. Smith\", \"decision_date\": \"1983-05-23\", \"docket_number\": \"No. 5566\", \"first_page\": \"273\", \"last_page\": \"280\", \"citations\": \"136 Ariz. 273\", \"volume\": \"136\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:56:48.547558+00:00\", \"provenance\": \"CAP\", \"judges\": \"HOLOHAN, C.J., GORDON, V.C.J., and CAMERON and FELDMAN, JJ., concur.\", \"parties\": \"STATE of Arizona, Appellee, v. Roger Lynn SMITH, Appellant.\", \"head_matter\": \"665 P.2d 995\\nSTATE of Arizona, Appellee, v. Roger Lynn SMITH, Appellant.\\nNo. 5566.\\nSupreme Court of Arizona, En Banc.\\nMay 23, 1983.\\nRobert K. Corbin, Atty. Gen. by William J. Schafer, III, Jack Roberts and Jessica Gifford, Asst. Attys. Gen., Phoenix, for appellee.\\nJames H. Kemper, Phoenix, for appellant.\", \"word_count\": \"3807\", \"char_count\": \"22897\", \"text\": \"HAYS, Justice.\\nAt about 10 o'clock on the morning of June 6, 1981 Roger Lynn Smith arrived at the Farmer's Liquor Store on South Central Avenue and Southern in Phoenix. He was with the Abila brothers, who had given him a ride as he hitchhiked to Phoenix; they rode in a car owned by one of the Abilas. Smith entered the store with a loaded sawed-off 20-gauge shotgun, took $158 from the cash register, and killed the clerk, Herman Helfand, with a single shot to the right temple. Smith then returned to the Abila vehicle and the three left the neighborhood.\\nShortly after 5:00 in the evening on June 6,1981 Officer Arthur Scott, of the Phoenix Police Department, and his partner, Reserve Officer Crosley, received an emergency call on their patrol car radio. The call reported a white male wearing blue jeans and no shirt who was \\\"threatening\\\" in the neighborhood of 30th Avenue and Sherman with a sawed-off shotgun. Scott and Crosley responded to the call and when they arrived they found Smith (who fit the description broadcast), the two Abilas and the Abilas' car which had become stuck in a hole in the dirt lot at the southeast corner of 30th and Sherman.\\nSmith was in the driver's seat of the car, turned to his left so that both feet were on the ground outside the open driver's door. His right arm was hanging by his side, with his hand in front of the seat, as Scott drove up. The Abila brothers were both outside the vehicle and Scott ordered all three to the rear of the car. Smith got out of the car and complied, leaving the driver's door open. At least two other police officers arrived on the scene immediately after Scott and Crosley, so Scott ordered one of them, Officer Mientel, to pat down all three men for weapons. Mientel found and retrieved ten rounds of 20-gauge shotgun ammunition from the pockets of Smith's jeans.\\nAs Mientel began the pat-down search of the three men, Scott looked in the open door and saw the barrel of a shotgun on the floor of the car immediately beneath the front edge of the seat Smith had occupied. Upon seeing the shotgun barrel, Scott looked up and to the rear of the car in time to see Mientel taking shotgun shells out of Smith's pockets. Scott directed Mientel to handcuff Smith and seized the sawed-off shotgun from the car. Smith was then arrested for possession of a prohibited weapon, and booked into the Maricopa County jail. Within days he was re-arrested at the jail for the murder of Herman Helfand.\\nSmith was tried separately from the Abilas upon stipulation of counsel for the state and for the appellant. The trial to a jury on one count of first degree murder and one count of armed robbery began on March 15, 1982. After a mistrial, a second jury was selected and heard the evidence beginning on March 17, 1982. They rendered their verdicts of guilty on March 22,1982. Smith was sentenced to 15 years in prison for armed robbery and, for murder, the court sentenced appellant to death after an aggravation/mitigation hearing. He appeals to this court his convictions and the death sentence imposed in Count I.\\nWe have jurisdiction pursuant to A.R.S. \\u00a7 13-4031 and \\u00a7 13-4035, and Ariz.Const. art. 6, \\u00a7 5(3), to review the record of this prosecution and the imposition of the death sentence.\\nThe parties have posed these seven issues on appeal:\\n1. Was it reversible error for the trial court to deny appellant's motion to suppress the shotgun ammunition seized from his person pursuant to a pat-down search?\\n2. Was it reversible error to permit the jury to hear testimony on the character and family life of the victim?\\n3. Was it reversible error to submit only guilty and not guilty forms of verdict on the first degree murder charge?\\n4. Was it fundamental error to allow the prosecutor to argue crime statistics to the jury when those statistics were not in evidence?\\n5. Is Arizona's death penalty statute unconstitutional because it deprives the jury of any participation in the sentencing procedure?\\n6. Is Arizona's death penalty statute unconstitutional because it allows the court discretion to ignore matters offered in mitigation?\\n7. Is Arizona's death penalty statute unconstitutional because it gives the trial court inadequate guidance in the balancing of aggravating and mitigating circumstances?\\nBecause we remand this matter for resentencing, we have not considered the remaining issue briefed in this court concerning the trial court's finding of one aggravating circumstance.\\nI. SUPPRESSION OF EVIDENCE\\nAppellant's first contention is that the trial court committed error when it denied his motion to preclude the use of the shotgun ammunition as evidence. His motion argued that the search of his person which produced this evidence was not supported by probable cause and could not be justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).\\nPreliminarily, it is noted that the standard we apply in reviewing a trial court's ruling on a motion to suppress is \\\"clear and manifest error,\\\" and we will not disturb such a ruling absent error of that degree. State v. Williams, 132 Ariz. 153, 644 P.2d 889 (1982). Moreover, we will view the facts in a light most favorable to sustaining the trial court's ruling. State v. Warren, 124 Ariz. 279, 603 P.2d 550 (App.1979).\\nPolice may detain persons for investigation in circumstances which do not provide probable cause to arrest. When an officer is justified in believing that the detainee is armed, he may perform a pat-down search for weapons in the interest of safety. Finally, if a pat-down search produces an indication that the detainee has a weapon on his person, or what might be a weapon, the officer may retrieve it by reaching into or beneath the subject's clothing. Terry v. Ohio, supra.\\nAppellant and the state agree that Officer Scott was justified in detaining Smith, and we agree as well. Smith fit the description of a man that Scott had been told was at that location, dressed as Smith was and in possession of an illegal lethal weapon. Further, we agree with the parties that Scott was justified by these circumstances in having Smith patted down for weapons. Finally, we find that the police reasonably decided to inspect the contents of Smith's pockets which were bulging with shotgun ammunition. The police radio call had told both officers they might confront a shotgun, and therefore the search for and seizure of the shotgun shells was justified under Terry. Because we find that the shotgun rounds were legally seized, we hold that it was not error to deny appellant's motion to suppress.\\nII. TESTIMONY ON CHARACTER OF VICTIM\\nAppellant contends that it was error to allow the jury to hear testimony from Peter Soliotis, the victim's work supervisor, about the work habits, character and family life of the victim, Herman Helfand. Specifically, he complains of this exchange:\\n[By Mr. Hotham', for the state]\\n\\\"Q. How old was Herman?\\n\\\"A. Herman was in his last 50's.\\n\\\"Q. And what type of worker was he?\\n\\\"A. He was very conscientious.\\n\\\"Q. What type of man?\\n\\\"MR. SACKS: I'll object, Your Honor. I think that is not probative and serves no function other than to create sympathy for someone that is already deceased which we all agree with.\\n\\\"THE COURT: Overruled.\\nBriefly, sir, just\\u2014\\n\\\"THE WITNESS: Herman was a very likable person. He was family oriented, took his wife out to dinner, took her flowers whenever there was a sidewalk florist in the area, cared for his family and kids. He was a very, a beautiful person.\\\"\\nIn determining relevancy and admissibility of evidence, the trial judge has considerable discretion. State v. Starks, 122 Ariz. 531, 534, 596 P.2d 366, 369 (1979). \\\" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\\\" 17A A.R.S. Rules of Evid., rule 401. \\\"Evidence is relevant if it has any basis in reason to prove a material fact in issue.\\\" State v. Kennedy, 122 Ariz. 22, 26, 592 P.2d 1288, 1292 (App. 1979).\\nUnder these well-established principles, it seems clear that witness Soliotis' testimony concerning the character of the deceased victim was irrelevant. Evidence which is not relevant is not admissible. 17A A.R.S. Rules of Evid., rule 402. Accordingly, we hold that it was error to overrule appellant's objection to the prosecutor's question.\\nNevertheless, all errors do not require reversal because not all errors are unfairly prejudicial. \\\"If it can be said that the error, beyond a reasonable doubt, had no influence on the verdict of the jury, then we will not reverse.\\\" State v. McVay, 127 Ariz. 450, 453, 622 P.2d 9, 12 (1980). Here, appellant confessed his guilt to at least one cellmate who testified at the trial. Smith was found in possession of the murder weapon and ammunition similar to the round that caused the fatal wound. Additionally, his palm print was found inside the store where the homicide occurred. On these facts, we find beyond a reasonable doubt that Mr. Soliotis' brief description of the victim's family life did not influence the verdict. Accordingly, we hold that the error was nonprejudicial.\\nIII. FORMS OF VERDICT\\nAppellant has urged that it was fundamental error for the trial court to present the jury with only two forms of verdict on the first degree homicide charge. The jury had the choice of finding Smith either guilty or not guilty of first degree murder. The indictment charged him with either premeditated murder or felony murder.\\nSmith contends that the forms of verdict presented to his jury denied the right to a unanimous jury verdict as guaranteed by Arizona Constitution, article 2, \\u00a7 23, because the jurors could not vote on the question of his guilt as to either premeditated murder or felony murder. According to appellant, the defect in this procedure is that he could be convicted of first degree murder even though the jury could not unanimously agree on what kind of first degree murder he committed.\\nWe have considered and rejected this line of reasoning in recent decisions, holding that an accused is not entitled to a unanimous verdict on the precise manner in which the crime was committed. State v. Encinas, 132 Ariz. 493, 496, 647 P.2d 624, 627 (1982).\\nIV. CRIME STATISTICS\\nAppellant contends further that it was fundamental error to allow the prosecutor, in closing argument, to present the jury with crime statistics which have no basis in the evidence. These are the remarks of which he complains:\\n\\\"There were over 125 people killed in our community last year. All of these deaths were very tragic, but none more senseless than this killing. In the United States alone last year, one person was killed every 20 minutes, 72 lives taken every day. And again last year, Phoenix was among the top ten in the most violent cities in America.\\\"\\nWe agree that these statements constitute improper argument, because they allude to numerous facts not in evidence. State v. Williams, 107 Ariz. 262, 265, 485 P.2d 832, 835 (1971). Nevertheless, we do not believe this is reversible error. In the first place, we note that defense counsel made no objection to these remarks. Ordinarily, this failure to object precludes raising the purported error on appeal. State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 1214, 1217 (1981). By failing to make a timely, specific objection to the prosecutor's remarks, appellant waived this issue on appeal unless the error was fundamental.\\nIn the past we have held fundamental error to be \\\"such error as goes to the foundation of the case, or takes from the defendant a right essential to his defense\\\". State v. Gamble, 111 Ariz. 25, 26, 523 P.2d 53, 54 (1974). We hold that this argument was error, but it did not rise to the level of fundamental error. Accordingly, and due to trial counsel's failure to object, the error has been waived and we decline to consider it further.\\nV. CONSTITUTIONALITY OF THE DEATH PENALTY STATUTE\\nA. No Jury Role in Imposition of Death Penalty\\nSmith has advanced the argument that the procedure on sentencing set out in A.R.S. \\u00a7 13-703 denied him his sixth and fourteenth amendment rights to a jury determination of the facts. He contends that in his case the death penalty was imposed after a factual determination, by the court alone, that this murder was committed for pecuniary gain. The defect in that procedure, in appellant's view, is that motive (whether the accused had an expectation of pecuniary gain) is a fact about the crime rather than about the defendant and, as such, is a fact that should be found by the jury.\\nWe do not agree, and we believe that Smith's reliance on State v. Quinn, 50 Or. App. 383, 623 P.2d 630 (1981), is misplaced. Quinn was sentenced to die after a jury convicted him of murder. Because of a peculiar chronology of constitutional and statutory revisions, at the time of Quinn's conviction Oregon's murder statute did not distinguish between purposeful, deliberate, premeditated murder (first degree murder) and purposeful murder committed without deliberation (second degree murder). Oregon's old criminal code had drawn that traditional distinction during that state's previous death penalty era (1920-1964). However, the Oregon criminal code had been revised in 1971 while there was no death penalty in Oregon so that there was a single form of murder in the code when Quinn was convicted.\\nWhen Oregon's voters, by a 1978 initiative and referendum, reinstated the death penalty, they did so by enacting the sentencing statute codified as Oregon Revised Statutes \\u00a7 163.116. Subsection (1) of ORS \\u00a7 163.116 provided for a post-trial hearing procedure before the court. Subsection (2) listed the circumstances to be considered and which, if found affirmatively, required a death sentence under subsection (4).\\nOne of the circumstances listed in ORS \\u00a7 163.116(2) is the issue, in the words of the statute:\\n\\\"(a) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;\\\" (Emphasis added).\\nThe Oregon Supreme Court held that the effect of the new sentencing statute was to reestablish a crime of deliberate first degree murder punishable by death. Because of this finding that deliberate murder was a different crime than murder, the court went on to hold that the procedure whereby the court, after the verdict, found a greater culpable mental state than the jury found and imposed an enhanced sentence had deprived Quinn of his right to a jury trial. Accordingly, the court set aside the death sentence and remanded for imposition of a new sentence.\\nSmith's case is distinguishable from Quinn's. In the case at bar, a jury, not the court, convicted the appellant of first degree murder and not the court. The court passed sentence on Smith after following the procedure set out in A.R.S. \\u00a7 13-703. While the trial court made various findings of fact pursuant to the statute, including a finding that this homicide was committed for pecuniary gain, none of these findings were elements of the crime of which Smith stands convicted. This is the primary distinction between the Quinn case and appellant's.\\nAdditionally, we have repeatedly rejected the argument that the sentencing procedure of A.R.S. \\u00a7 13-703 violates a defendant's right to a trial by jury. State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, 15 (1983). We decline to change that position because of the distinction between this case and State v. Quinn, supra, and, further, because of the continuing vitality of the authority upon which our earlier holdings are premised. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).\\nB. Matters Offered in Mitigation\\nAppellant argues that our death penalty statute violates the eighth and fourteenth amendments because it allows a judge to disregard factors which should be considered in mitigation. In a recent opinion of this court we made it clear that a sentencing judge is not free, as appellant contends, to disregard anything as a mitigating factor. In State v. McMurtrey, 664 P.2d 637 (1983) we explained: \\\"The trial court is not required to find a mitigating circumstance; nor is it required to make a statement that none has been found. The trial court must, however, consider the evidence.\\\" (citation omitted). Id. at 646.\\nC. Guidance in Balancing Aggravating and Mitigating Factors\\nSmith has also argued that our death penalty statute violates the eighth and fourteenth amendments because it offers no guidance in balancing aggravating and mitigating circumstances. This contention has been considered and rejected by this court. State v. Ortiz, 131 Ariz. 195, 206, 639 P.2d 1020, 1031 (1982). Arizona Revised Statutes \\u00a7 13-703 was drafted to guide the sentencing court's discretion and we contin ue to believe that goal is constitutionally achieved by the procedure used in appellant's case.\\nVI. INEFFECTIVE ASSISTANCE OF COUNSEL\\nPursuant to A.R.S. \\u00a7 13-4035 we have reviewed the entire record for fundamental error. We therefore consider the question of whether Smith was denied effective assistance of counsel by virtue of his reliance on his trial counsel's advice (1) not to discuss the facts of these crimes with the presentence investigator and (2) not to present any mitigation evidence at the presentence hearing. We understand that the basis of this advice to Smith was counsel's belief that incriminating statements his client might make would later be admissible against him if he should win a new trial. It is clear that Smith received bad legal advice, since a defendant's statements made in connection with the preparation of the presentence report are not admissible at any new trial. 17 A.R.S. Rules of Criminal Procedure, rule 26.6(d)(2). It is also clear from the defendant's statements to the trial judge in open court, as well as the statement to the probation officer recorded in the presentence report, that Smith relied on this bad advice. We would expect that a man on trial for his life would rely on the advice of the person who defended him, and we believe that Smith's reliance was reasonable. However, two well-established points of law and two additional factual circumstances are material to this inquiry.\\nFirst, the legal standard by which we measure the effectiveness of counsel in a criminal trial is \\\"whether under the circumstances the attorney showed at least minimal competence in representing the criminal defendant.\\\" State v. Watson, 134 Ariz. 1, 4, 653 P.2d 351, 354 (1982). Second, our death penalty statute requires the imposition of capital punishment when even one aggravating circumstance is proven, if no mitigating circumstance is found \\\"sufficiently substantial to call for leniency.\\\" A.R.S. \\u00a7 13-703(E).\\nThe two additional facts are, first, that the state pleaded and proved aggravation under A.R.S. \\u00a7 13-703(F)(2) (previous conviction of a felony involving the use or threat of violence). This was done with testimony and certified documentary evidence of a 1976 conviction for kidnapping in Tennessee. Imposition of the death penalty was thus assured unless the defendant bore his burden of showing mitigation sufficiently substantial to call for leniency. The second additional fact is that some information was offered in mitigation by avowals of defense counsel during his argument to the court; i.e., the statements defendant said he would make about the events and the killing had he not believed that he would be compromising his fifth amendment privilege by offering his own statement as to mitigating circumstances.\\nIt is our opinion that this convergence of legal and factual circumstances produced a presentence hearing at which defendant was denied effective assistance of counsel. First, by the time of the presentence hearing Smith's counsel knew from the state's sentencing memorandum that they proposed, and would be allowed, to prove the kidnapping conviction by testimony and documentary evidence. Presumably, counsel knew (1) that proof of a single aggravating factor, absent sufficient mitigation, mandates the death penalty, and (2) that rule 26.6(d)(2) protects the accused against self-incrimination. Nevertheless, and knowing of defendant's assertion that he did not intentionally shoot Herman Helfand, counsel advised Smith not to discuss the facts with the investigating probation officer. This insured that the result of the sentencing proceedings was a foregone conclusion, and that the result would be the worst possible outcome for his client.\\nWe do not believe that advising a client incorrectly about the black letter Rules of Criminal Procedure, especially in a matter of life and death, can be called minimally competent representation. We hold, therefore, that the denial of Smith's right to effective assistance of counsel was fundamental error, taking from him a right essential to his defense. State v. Gamble, supra. Further, we hold that the error was not harmless since it appears from the record that the sentencing court may not have considered circumstances that could have been weighed in mitigation. State v. McMurtrey, supra.\\nFor that reason we remand for a new presentence investigation and hearing. The defendant will be given an opportunity to relate his version of the facts to the probation officer. It is, of course, for the sentencing judge to assess the credibility and sufficiency of that information. We remand because we believe that, in fairness, we must afford each person convicted of first degree murder the opportunity to meet his burden of establishing mitigation, assisted by minimally competent counsel.\\nVII. AGGRAVATING AND MITIGATING CIRCUMSTANCES\\nBecause we remand, we do not here review the trial court's findings as to aggravation and mitigation.\\nLikewise, because we are-remanding this case to the trial court, this opinion does not contain the proportionality review required by our decision in State v. Richmond, 114 Ariz. 186, 560 P.2d 41, cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1011 (1976). We will undertake these two tasks when we review the sentence after remand if a sentence of death is imposed.\\nJudgments of convictions are affirmed. Sentence on robbery count is affirmed. Sentence of death vacated on the conviction of first degree murder and the cause is remanded for resentencing in accordance with this opinion.\\nHOLOHAN, C.J., GORDON, V.C.J., and CAMERON and FELDMAN, JJ., concur.\\n. ORS \\u00a7 163.116 was repealed in 1981. 1981 Or.Laws, ch. 873 \\u00a7 9.\"}"
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+"{\"id\": \"720083\", \"name\": \"The ESTES COMPANY and Estes Homes, a partnership consisting of the Estes Co., and Shedco, Inc.; the Estes Co., a partnership, consisting of We 7, Inc.; Shedco, Inc., a corporation; We 7, Inc., a corporation, Defendants-Appellants, v. AZTEC CONSTRUCTION, INC., an Arizona corporation, Defendant-Appellee\", \"name_abbreviation\": \"Estes Co. v. Aztec Construction, Inc.\", \"decision_date\": \"1983-08-30\", \"docket_number\": \"No. 1 CA-CIV 5862\", \"first_page\": \"166\", \"last_page\": \"170\", \"citations\": \"139 Ariz. 166\", \"volume\": \"139\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T21:49:10.758142+00:00\", \"provenance\": \"CAP\", \"judges\": \"CORCORAN and KLEINSCHMIDT, JJ., concur.\", \"parties\": \"The ESTES COMPANY and Estes Homes, a partnership consisting of the Estes Co., and Shedco, Inc.; the Estes Co., a partnership, consisting of We 7, Inc.; Shedco, Inc., a corporation; We 7, Inc., a corporation, Defendants-Appellants, v. AZTEC CONSTRUCTION, INC., an Arizona corporation, Defendant-Appellee.\", \"head_matter\": \"677 P.2d 939\\nThe ESTES COMPANY and Estes Homes, a partnership consisting of the Estes Co., and Shedco, Inc.; the Estes Co., a partnership, consisting of We 7, Inc.; Shedco, Inc., a corporation; We 7, Inc., a corporation, Defendants-Appellants, v. AZTEC CONSTRUCTION, INC., an Arizona corporation, Defendant-Appellee.\\nNo. 1 CA-CIV 5862.\\nCourt of Appeals of Arizona, Division 1, Department A.\\nAug. 30, 1983.\\nReconsideration Denied Oct. 6, 1983.\\nReview Denied Feb. 7, 1984.\\nGust, Rosenfeld, Divelbess & Henderson by Richard A. Segal, Phoenix, for defendant-appellant Estes Co.\\nLewis & Roca by Judith E. Sirkis, Phoenix, for defendant-appellee.\", \"word_count\": \"2063\", \"char_count\": \"13023\", \"text\": \"OPINION\\nCONTRERAS, Judge.\\nCross-claimant the Estes Company appeals from the judgment denying its cross-claim for indemnity and the denial of its motion for a new trial on the cross-claim. We reverse and remand with directions to enter judgment for Estes on its cross-claim.\\nNATURE OF CASE\\nThe parties to this appeal were defendants in a wrongful death action. Based upon an indemnity agreement The Estes Company, the general contractor, filed a cross-claim seeking indemnity from Aztec Construction Company, a subcontractor.\\nBefore the trial on the principal claim, the defendants agreed that the trial judge could, without jury and based upon the evidence presented, decide the cross-claim following a jury verdict. The trial resulted in a verdict in favor of the plaintiffs and a judgment that both defendants were negligent. Following the trial, the trial judge, in denying the claim for indemnification, stated in a minute entry:\\n[t]he Court does not believe that the contract itself sufficiently demonstrates that the parties intended that Estes would be indemnified for its own negligent actions which may have related to the trenching operation.\\nThe Court, in addition, does not believe that . a common law right to indemnification [exists]. Estes knew of the open trench, it knew of the hazards of trenching (as evidenced by signs erected at other points on the project), and it knew or should have known that no warnings or special precautions were being taken with regard to the trench. It also knew children played in the area. Its acquiescence in the continuation of the condition constitutes active negligence.\\nThe judgment on the verdict in favor of the plaintiffs has been compromised and paid, with each of the parties to this appeal paying one-half of the agreed amount, and reserving their rights as to indemnity. This appeal is from the portion of the judgment entered on October 21, 1980, which found in favor of Aztec on the cross-claim for indemnification and from the order of January 12, 1981, which denied the motion for a new trial on the cross-claim.\\nFACTUAL BACKGROUND\\nOn Sunday, December 10, 1978, at a subdivision construction site in northwest Phoenix, two boys died as a result of the collapse of a sewer trench in which they were playing. The trench was being dug by Aztec Construction Company pursuant to its subcontract with Estes Company. Aztec followed a process of digging the trench, laying pipe and filling the trench. The subcontract provides, in pertinent part, that \\\"[subcontractor shall protect and indemnify [contractor from any claims, liability, or losses suffered by anyone wholly or partially through the negligence of [subcontractor or any of its agents or employees.\\\"\\nThe principal activity of the general contractor was to coordinate the work of its subcontractors. Estes' construction superintendent, Robert Stewart, visited the site daily to check on the progress of the project including the excavation and to see if there were any problems. He testified at trial that Estes recognized a general duty of safety over the total site and had posted signs at the north end of the construction area where model homes were located and in the area where the streets came to an end.\\nCity of Phoenix inspectors regularly inspected the project to ensure compliance with the approved plans and specifications and the Maricopa Association of Governments (\\\"MAG\\\") specifications. The City of Phoenix has authority to correct conditions that are unsafe. There is no evidence that the project was cited for any code violations or that the excavation was not in accordance with industry-wide procedures. The evidence shows that the trench was being dug with a trenching machine, but that shoring was to be used in the trench when pipe was being laid. In addition, even though the open trench was not fenced, barricaded, or marked by warning signs, there is no evidence that this was in violation of applicable codes or general construction practice. Aztec, as a subcontractor determined the type of equipment to be used and the manner in which the excavation was to be performed.\\nINDEMNITY PROVISION IN THE CONTRACT\\nA. The Effect of the Indemnity Provision\\nThe trial court, in denying Estes' cross-claim, reasoned that the contract between Estes as general contractor and Aztec as a subcontractor did not sufficiently demonstrate that the parties intended that Estes would be indemnified for its own negligent actions which may have related to the trenching operation. We disagree.\\nThe parties expressly contracted with respect to the duty to indemnify and the extent of that duty must be determined from the contract. Rossmoor Sanitation, Inc. v. Pylon, Inc., 13 Cal.3d 622, 119 Cal. Rptr. 449, 532 P.2d 97 (1975). The test in construing indemnity contracts is:\\n[Wjhether or not, considering all of the relational circumstances, the indemnitee reasonably expected as part of his \\\"bargain with the indemnitor that the duty he failed to perform and on which his liability to plaintiff is predicated would be performed by the indemnitor. Then, of course, as between themselves, the indemnitee should be relieved of responsibility for his breach of duty vis-a-vis plaintiff since the indemnitor's obligation to indemnify in that situation would clearly have been within the parties' contemplated bargain.\\nDoloughty v. Blanchard Constr. Co., 139 N.J.Super. 110, 352 A.2d 613, 620 (1976). See also General Accident Fire & Life Assurance Cory. v. Traders Furniture Co., 1 Ariz.App. 203, 401 P.2d 157 (1965). Furthermore, a general principle of contract law is that where parties bind themselves by a lawful contract and the terms of the contract are clear and unambiguous, a court must give effect to the contract as written. Isaak v. Massachusetts Indemn. Life Ins. Co., 127 Ariz. 581, 623 P.2d 11 (1981); Dutch Inns of America, Inc. v. Horizon Corp., 18 Ariz.App. 116, 500 P.2d 901 (1972). Where a subcontractor expressly agrees to indemnify the general contractor, he will be bound by the clear terms of his undertaking. See Annot. 143 A.L.R. 312 (1943).\\nThe indemnity provision in this construction contract states that Aztec will indemnify Estes \\\"from any claims, liability or losses suffered by anyone wholly or partially through the negligence of [subcontractor.\\\" The clause does not specifically address what effect the indemnitee's negligence will have on the indemnitor's obligation to indemnify and, therefore is regarded as a \\\"general\\\" indemnity agree ment. Rossmoor, Gonzales v. R.J. Novick Constr. Co., Inc., 20 Cal.3d 798, 144 Cal. Rptr. 408, 575 P.2d 1190 (1978). It is well established in Arizona that under a general indemnity agreement an indemnitee is entitled to indemnification for a loss resulting in part from an indemnitee's passive negligence, but not active negligence. Busy Bee Buffet v. Ferrell, 82 Ariz. 192, 310 P.2d 817 (1957); Transcon Lines v. Barnes, 17 Ariz.App. 428, 498 P.2d 502 (1972). See also Annot. 27 A.L.R.3d 663 (1969); Booth-Kelly Lumber Co. v. Southern Pacific Co., 183 F.2d 902 (9th Cir. 1950); Morgan v. Stubblefield, 6 Cal.3d 606, 100 Cal.Rptr. 1, 493 P.2d 465 (1972).\\nTherefore, and in conformance with established law, we find that the terms of the indemnity provision are clear and unequivocal and sufficiently demonstrate that the parties intended that Estes would be indemnified notwithstanding its own passive negligence. We next consider the question of whether Estes' negligence was active or passive.\\nB. Estes' Negligence Was Not Active\\nThe trial court concluded that Estes was actively negligent because it acquiesced in a condition which was a hazard. We disagree with this conclusion.\\nGenerally, active negligence is found if an indemnitee has personally participated in an affirmative act of negligence, was connected with negligent acts or omissions by knowledge or acquiescence, or has failed to perform a precise duty which the indemnitee had agreed to perform. On the other hand, passive negligence is found in mere nonfeasance, such as the failure to discover a dangerous condition, perform a duty imposed by law, or take adequate precautions against certain hazards inherent in employment. Busy Bee Buffet; Transcon Lines v. Barnes; Rossmoor; Gonzales. See also 41 Am. Jur.2d Indemnity \\u00a7 17 (1968); Restatement of Restitution \\u00a7 95 (1937); Garbincius v. Boston Edison Co., 621 F.2d 1171 (1st Cir. 1980).\\nWhether conduct constitutes active or passive negligence depends upon the circumstances of a given case. Gonzales. As stated in Busy Bee Buffet, in order to find active negligence there must be some active participation in the wrong which was the immediate cause of the injury. Here, the immediate cause of the deaths of the two children was the collapse of the trench while they were in it. The only evidence presented which would sustain a finding that the excavation presented a peculiar risk of such harm was that Aztec used equipment or techniques which were improper for the type of soil in which the excavation was being performed. In this regard, plaintiffs presented evidence that Aztec was negligent in using a trenching machine rather than a backhoe. Plaintiffs' expert testified that a backhoe slopes the walls of the trench to minimize the chance of cave-ins. There was additional testimony that the soil in this area was not appropriate for trenching machines and that a backhoe should have been used. But Estes did not actively participate in the trenching operation. Furthermore, there is no evidence that Estes knew or should have known of any danger created by Aztec's use of a trenching machine rather than a backhoe.\\nEstes, as general contractor, was responsible only for the general supervision and coordination of the construction of the residential project. Aztec, as a subcontractor, determined the type of excavation equipment to be used and the manner in which the excavation was performed. It is true that Estes, in recognizing a duty to the public to warn that construction was underway, posted signs to that effect. However, it is our opinion that Estes' responsibility to supervise the construction of the residential development and the posting of notice signs is not, without more, the type of affirmative act which connotes active, as opposed to passive, negligence.\\nSignificantly, the trial court did not find that the actions or conduct of Estes were affirmative acts of negligence. Rather, the trial court concluded that Estes was actively negligent because it acquiesced in the continuation of a hazardous condition. We disagree with this conclusion of the trial court. The act of trench digging, unlike blasting operations, cannot be regarded as a hazardous condition or as an inherently dangerous activity. Significantly, there was no evidence that the City of Phoenix had cited Aztec for any code violations in its excavation operations. And more significantly, there was no evidence that Aztec was conducting the trenching operation in violation of any governmental rules or regulations or contrary to industry-accepted practices. It is merely speculative that a hazardous condition existed and, therefore, there is no reasonable basis for the court's conclusion that Estes was actively negligent because it acquiesced in the continuation of a hazardous condition. Rather, and again we reiterate, the cause of the children's deaths was the collapse of the trench which the jury, based upon the evidence presented, could conclude was due to Aztec's selected technique of excavation. If a potentially dangerous condition was created, it was the activity of Aztec and not Estes which caused this condition to exist. Mere nonfeasance on the part of Estes in failing to discover a dangerous or a potentially dangerous condition arising from the manner in which the work was being performed by Aztec the subcontractor is passive negligence, and will not preclude indemnity under a general indemnity provision. Busy Bee Buffet; Thornton; Rossmoor; Gonzales; Garbincius.\\nCONCLUSION\\nBecause the contract contains a general indemnification provision and the mere nonfeasance of Estes constitutes passive negligence, we conclude that the trial court erred in denying Estes' cross-claim for indemnification. Accordingly, we reverse and remand with directions to enter judgment for Estes on its cross-claim.\\nCORCORAN and KLEINSCHMIDT, JJ., concur.\"}"
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+"{\"id\": \"732427\", \"name\": \"The STATE of Arizona, Appellee, v. Jeffrey Allen BROWN, Appellant\", \"name_abbreviation\": \"State v. Brown\", \"decision_date\": \"2003-03-19\", \"docket_number\": \"No. 2 CA-CR 2001-0343\", \"first_page\": \"405\", \"last_page\": \"412\", \"citations\": \"204 Ariz. 405\", \"volume\": \"204\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Court of Appeals\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:46:18.103983+00:00\", \"provenance\": \"CAP\", \"judges\": \"PELANDER, Presiding Judge, concurring.\", \"parties\": \"The STATE of Arizona, Appellee, v. Jeffrey Allen BROWN, Appellant.\", \"head_matter\": \"64 P.3d 847\\nThe STATE of Arizona, Appellee, v. Jeffrey Allen BROWN, Appellant.\\nNo. 2 CA-CR 2001-0343.\\nCourt of Appeals of Arizona, Division 2, Department B.\\nMarch 19, 2003.\\nAs Corrected April 16, 2003.\\nTerry Goddard, Arizona Attorney General, By Randall M. Howe and Katia Mehu, Phoenix, for Appellee.\\nR. Lamar Couser, Tucson, for Appellant.\", \"word_count\": \"3854\", \"char_count\": \"23530\", \"text\": \"OPINION\\nDRUKE, J. (Retired).\\n\\u00b6 1 A jury found Jeffrey Allen Brown guilty of shoplifting, a class four felony. The trial court then conducted a bench trial on the state's allegation of prior conviction and found that Brown had been previously convicted of manslaughter, which enhanced the sentencing range for the shoplifting offense pursuant to A.R.S. \\u00a7 13-604. As a result, the trial court sentenced him to an aggravated, six-year prison term. On appeal, Brown raises two issues: whether the time limits of Rule 8.2, Ariz. R.Crim. P., 16A A.R.S., apply to the trial of an allegation of prior conviction and whether the trial court erred in refusing to give a lesser-included offense jury instruction. Because these issues present questions of law, we review them de novo. State v. Gross, 201 Ariz. 41, 31 P.3d 815 (App.2001); State v. Carrasco, 201 Ariz. 220, 33 P.3d 791 (App.2001). Finding no reversible error, we affirm Brown's conviction and sentence.\\nRule 8.2\\n\\u00b6 2 Brown first argues that the trial court erred in conducting the bench trial on the allegation of prior conviction beyond the time limits of Rule 8.2. At a pretrial conference on July 10, 2000, defense counsel told the court that those time limits would expire on August 16. Brown's jury trial took place on August 7 and 8, but the bench trial occurred on August 21, five days after the time limits had expired. Brown claims this delay violated the requirements of Rule 19.1(b)(2), Ariz. R.Crim. P., 17 A.R.S., and thus violated the Rule 8.2 time limits. We disagree.\\n\\u00b63 The relevant part of Rule 19.1(b)(2) states that, if the jury returns a guilty verdict, \\\"the issue of the prior conviction shall then be tried, unless the defendant has admitted the prior conviction.\\\" Brown contends the word \\\"then\\\" means that a prior conviction trial must occur \\\"immediately after the verdict of guilty.\\\" We need not decide this issue, however, because the record shows that Brown admitted the prior conviction while testifying at trial. When asked by his attorney whether he had \\\"a prior felony conviction from Salt Lake County in Utah Cause No. 941901628 that [h]as a date of conviction of April 11, 1995,\\\" Brown answered, \\\"That's correct.\\\" This admission satisfied the express exception in Rule 19.1(b)(2) and made the subsequent bench trial on the prior conviction unnecessary.\\n\\u00b6 4 The trial court thought otherwise, however, stating that it needed to set a bench trial on the prior conviction allegation \\\"because [the state] still needfed] to prove some additional elements for use of the prior for enhancement purposes.\\\" But, in State v. Seymour, 101 Ariz. 498, 500, 421 P.2d 517, 519 (1966), our supreme court observed that a defendant's admission during trial \\\"is surely the sti'ongest evidence available to prove a prior conviction . [because] there is no danger that an accused will falsely testify that he has been previously convicted.\\\" The court commented that, under such circumstances, \\\"the production of other evidence by the State to show the previous conviction would . [be] an idle formality.\\\" Id. Then, in State v. McMurry, 20 Ariz.App. 415, 513 P.2d 953 (1973), Division One of this court addressed whether a defendant's admission was sufficient to establish a prior felony conviction for enhancement purposes. Relying on Seymour and Rule 19.1(b)(2), Division One found that McMurry's admission during trial that he had a prior theft conviction was \\\"sufficient to support the increased sentence imposed\\\" by the trial court. McMurry, 20 Ariz.App. at 422, 513 P.2d at 960.\\n\\u00b6 5 We likewise find that Brown's admission during trial of his prior felony conviction was sufficient for the trial court to impose an enhanced sentence pursuant to \\u00a7 13-604. And, although Brown did not admit that the prior conviction was for manslaughter, he admitted sufficient facts for the trial court to easily determine that the admitted prior felony conviction and the one set forth in the allegation of prior conviction were one and the same.\\n\\u00b6 6 Moreover, even if we assume, as Brown claims, that the Rule 8.2 time limits apply to the trial of an allegation of prior conviction, the record shows he had advised the trial court that those limits would expire on August 16, yet failed to object to the court's scheduling the prior conviction trial five days beyond that date. Under such circumstances and, again, assuming Rule 8.2 applies, Brown thus waived any claim that the rule was violated. \\\"[A] defendant may not complain of a Rule 8 violation for the first time after the verdict and on appeal.\\\" State v. Swensrud, 168 Ariz. 21, 22, 810 P.2d 1028, 1029 (1991).\\nLesser-included Offense Instruction\\n\\u00b6 7 Brown next argues that the trial court erroneously refused his request to instruct the jury that \\\"simple\\\" shoplifting under A.R.S. \\u00a7 13-1805(A) is a lesser-included offense of \\\"aggravated\\\" shoplifting under \\u00a7 13-1805(1). We review a trial court's deni al of a requested jury instruction for an abuse of discretion. State v. Bolton, 182 Ariz. 290, 896 P.2d 830 (1995). A trial court must give a lesser-included offense instruction if an offense is, in fact, a lesser-included offense of another, and the evidence supports giving the lesser-included instruction. Ariz. R.Crim. P. 23.3, 17 A.R.S.; State v. Miranda, 200 Ariz. 67, 22 P.3d 506 (2001).\\n\\u00b6 8 The evidence here showed that Brown entered a Target store with a shopping bag, placed a videocassette recorder (VCR) in the bag, and left the store without paying for the VCR. Brown testified that, although he had entered the store intending \\\"to take something and try to sell it\\\" to buy insulin for the diabetic episode he was experiencing, he was homeless and had been using the bag to \\\"carry [his] clothing and [his] food,\\\" but not \\\"to facilitate or to assist [him] in doing the shoplift.\\\"\\n\\u00b6 9 The indictment charged Brown with class four shoplifting under \\u00a7 13-1805(1). The relevant part of \\u00a7 13-1805(A) defines shoplifting as follows:\\nA person commits shoplifting if, while in an establishment in which merchandise is displayed for sale, such person knowingly obtains such goods of another with the intent to deprive that person of such goods by:\\n1. Removing any of the goods from the immediate display or from any other place within the establishment without paying the purchase price____\\n\\u00b6 10 Subsection G of the statute makes shoplifting a class one misdemeanor if the property has a value of $250 or less, a class six felony if the property is a firearm or has a value of more than $250 but not more than $2,000, and a class five felony if the property has a value of more than $2,000 or has been taken \\\"during any continuing criminal episode regardless of the value.\\\"\\n\\u00b6 11 Subsection I of the statute, the subsection at issue here, makes shoplifting a class four felony if the person \\\"who commits shoplifting . has previously committed or been convicted within the past five years of two or more offenses involving burglary, shoplifting, robbery or theft or who in the course of shoplifting entered the mercantile establishment with an artifice, instrument, container, device or other article that was intended to facilitate shoplifting.\\\" At trial, the state claimed that Brown had violated the facilitation portion of subsection I rather than the prior conviction portion.\\n\\u00b6 12 While settling jury instructions in the trial court, Brown argued that, by adding subsection I to \\u00a7 13-1805, the legislature created a new, substantive offense of \\\"aggravated\\\" shoplifting and requested that the court first instruct the jury on \\\"aggravated shoplifting and then further instruct them on the necessarily included offense of shoplifting.\\\" The court refused the request, reasoning that the facilitation portion of subsection I was an \\\"enhancement or classification\\\" provision and did not create a new, substantive offense. The court thus instructed the jury on the applicable elements of shoplifting under \\u00a7 13-1805(A) and included on the verdict form an interrogatory on whether the state had proven beyond a reasonable doubt that Brown had entered the store \\\"with an artifice, instrument, container, device or article that was intended to facilitate the shoplifting.\\\" The court further instructed the jurors that, if they found Brown not guilty of shoplifting, they need \\\"not go any further\\\" but, if they found him guilty of the offense, they needed \\\"to go one additional step\\\" and consider the interrogatory. The jury found Brown guilty of shoplifting and answered the interrogatory in the affirmative.\\n\\u00b6 13 Brown maintains that the facilitation portion of \\u00a7 13-1805(1) creates the substantive offense of aggravated shoplifting, not merely a different classification of the offense. The state responds that \\u00a7 13-1805 creates but a single crime with various provisions for classifying its seriousness and is thus analogous to our theft statute, A.R.S. \\u00a7 13-1802. In support, the state cites several cases so interpreting \\u00a7 13-1802. As the state points out, these cases generally hold that \\u00a7 13-1802 creates \\\"a single crime of 'theft,' combining or merging the common law crimes of larceny, fraud, embezzlement, obtaining money by false pretenses, and other similar offenses.\\\" State v. Tramble, 144 Ariz. 48, 52, 695 P.2d 737, 741 (1985); see also State v. Wolter, 197 Ariz. 190, \\u00b6 8, 3 P.3d 1110, \\u00b6 8 (App.2000) (A.R.S. \\u00a7 13-1801 and 13-1802 \\\"are related statutes that constitute one law\\\"); State v. Winter, 146 Ariz. 461, 706 P.2d 1228 (App.1985) (theft is single offense under \\u00a7 13-1802); State v. Brokaw, 134 Ariz. 532, 658 P.2d 185 (App.1982) (\\u00a7 13-1802 defines single crime of theft). In addition, our supreme court has similarly held that the kidnapping statute, A.R.S. \\u00a7 13-1304, defines \\\"a single crime known as kidnapping.\\\" State v. Eagle, 196 Ariz. 188, \\u00b6 10, 994 P.2d 395, \\u00b6 10 (2000).\\n\\u00b6 14 As the state also points out, this court specifically stated in Brokaw that a lesser-included offense analysis cannot\\nproperly be applied to our current theft statute, A.R.S. \\u00a7 13-1802. That statute does not create separate offenses having the value of the stolen property or services as the distinguishing element. Instead, it defines a single crime, theft, and provides that the classification of the offense for punishment purposes is to be determined by the value of the stolen property or services.\\n134 Ariz. at 535, 658 P.2d at 188. And, in Eagle, the supreme court stated that subsection B of the kidnapping statute, \\u00a7 13-1304, \\\"deals with factors that could change the classification [of the offense] and thus alter a defendant's [punishment] exposure, but the elements of the crime remain the same.\\\" 196 Ariz. 188, \\u00b6 10, 994 P.2d 395, \\u00b6 10.\\n\\u00b6 15 From this body of case law, the state argues that \\u00a7 13-1805 likewise \\\"defines a single crime, shoplifting, and provides that the classification of the offense, for punishment purposes, is to be determined by value, prior convictions, and the methodology used to facilitate the offense.\\\"\\n\\u00b6 16 When interpreting a statute, we seek \\\"to determine and give effect to the legislature's intent.\\\" State v. Affordable Bail Bonds, 198 Ariz. 34, \\u00b6 13, 6 P.3d 339, \\u00b6 13 (App.2000); see also State v. Reynolds, 170 Ariz. 233, 823 P.2d 681 (1992) (statutory interpretation requires court to discern legislative intent). The best source of that intent is the statutory language itself. State Compensation Fund v. Mar Pac Helicopter Corp., 156 Ariz. 348, 752 P.2d 1 (App.1987). Accordingly, we must give meaning to each word or phrase so that none \\\"is rendered superfluous, void, contradictory or insignificant.\\\" State v. Superior Court, 113 Ariz. 248, 249, 550 P.2d 626, 627 (1976); see also Fraternal Order of Eagles, Inc. v. City of Tucson, 168 Ariz. 598, 816 P.2d 255 (App. 1991) (statutes construed to give effect to every word); Weitekamp v. Fireman's Fund Ins. Co., 147 Ariz. 274, 709 P.2d 908 (App. 1985) (each word or phrase of statute given meaning).\\n\\u00b6 17 Here, the facilitation portion of \\u00a7 13-1805(1) expressly requires that, when the person entered the store to commit shoplifting, he or she \\\"intended\\\" to use \\\"an artifice, instrument, container, device or other article\\\" to facilitate the offense. The facilitation portion of the statute thus differs from the prior conviction portion of \\u00a7 13-1805(1) as well as the classification provisions of \\u00a7 13-1805(G) and the theft statute, \\u00a7 13-1802(E), none of which includes the word \\\"intended.\\\" Because we must give meaning to the word \\\"intended\\\" in the facilitation portion of \\u00a7 13-1805(1), Superior Court, we conclude that, before a person may be convicted of the class four offense of \\\"facilitated shoplifting,\\\" the state must not only prove the elements of shoplifting, as defined by \\u00a7 13-1805(A), but the additional element that the person entered the store with something he or she intended to facilitate the shoplifting.\\n\\u00b6 18 At one time, two forms of intent were recognized in Arizona, general intent and specific intent.\\nIn crimes of general intent, the party is presumed to have the requisite criminal intent from the commission of the crime itself. Specific intent, however, is an additional mental element to certain crimes, . [such as] assault with intent to commit murder which requires a specific intent . to commit a murder, in addition to a general intent to commit assault.\\nState v. Jamison, 110 Ariz. 245, 248, 517 P.2d 1241, 1244 (1974); see also State v. Bell, 113 Ariz. 279, 551 P.2d 548 (1976); State v. Miller, 123 Ariz. 491, 600 P.2d 1123 (App.1979). Consequently, certain crimes required proof of and instruction on the specific intent necessary to commit the crime. Miller (attempt requires evidence of specific intent to commit substantive offense); State v. Price, 123 Ariz. 197, 598 P.2d 1016 (App.) (trial court must instruct that aiding and abetting requires proof defendant intended to help commit crime), aff'd in part and rev'd in part, 123 Ariz. 166, 598 P.2d 985 (1979); State v. Foster, 121 Ariz. 287, 589 P.2d 1319 (App.1978) (state has burden of proving specific intent to defraud business establishment).\\n\\u00b6 19 But, under our current criminal code, we no longer distinguish between general and specific intent crimes. See State v. Bridgeforth, 156 Ariz. 60, 62, 750 P.2d 3, 5 (1988) (1978 code abandoned use of terms \\\"specific intent\\\" and \\\"general intent\\\"); State v. Robles, 128 Ariz. 89, 623 P.2d 1245 (App. 1980) (specific and general intent labels no longer applicable). Instead, A.R.S. \\u00a7 13-105(9) defines four culpable mental states: \\\"intentionally, knowingly, recklessly or with criminal negligence.\\\" These mental states \\\"replace all previous mental states used in our criminal laws.\\\" Bridgeforth, 156 Ariz. at 62, 750 P.2d at 5; see also Robles (same). The legislature, however, need not prescribe a culpable mental state in defining a crime. See A.R.S. \\u00a7 13-202(B); State v. Thompson, 138 Ariz. 341, 674 P.2d 895 (App.1983). But if the legislature does so, that mental state becomes an element of the offense to be proved by the state. See generally \\u00a7 13-202; Bridgeforth (charge of scheme or artifice to defraud requires state to prove defendant knowingly obtained benefit by false pretense and intended to defraud others); State v. Routhier, 137 Ariz. 90, 669 P.2d 68 (1983) (conviction for attempted murder requires evidence showing intent to commit crime).\\n\\u00b6 20 For the crime of shoplifting, the legislature has prescribed two different mental states. Under \\u00a7 13-1805(A), a person commits shoplifting if, while in a store displaying goods for sale, the person \\\"knowingly obtains such goods of another with the intent to deprive that person of such goods\\\" by one of the means listed in the statute. The legislature has thus prescribed the mental states of \\\"knowingly\\\" and \\\"with the intent to\\\" as elements of the crime, both of which the state must prove for a conviction. Similarly, because the legislature has prescribed the mental state of \\\"intended\\\" in the facilitation portion of \\u00a7 13-1805(1), the state must prove that mental state to obtain a conviction for facilitated shoplifting.\\n\\u00b6 21 The question remains, however, whether shoplifting under \\u00a7 13-1805(A) is a lesser-ineluded offense of facilitated shoplifting under \\u00a7 13-1805(1). \\\"A lesserineluded offense is one 'composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one.\\\"' Miranda, 200 Ariz. 67, \\u00b6 2, 22 P.3d 506, \\u00b6 2, quoting State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983). The offense is also lesser included \\\"when the charging document describes the lesser offense even though the lesser offense would not always form a constituent part of the greater offense.\\\" State v. Hurley, 197 Ariz. 400, \\u00b6 13, 4 P.3d 455, \\u00b6 13 (App.2000). Put another way, a court must ascertain \\\"whether the greater offense, as described by a statute or as charged, can be committed without necessarily committing the lesser offense.\\\" State v. Ennis, 142 Ariz. 311, 314, 689 P.2d 570, 573 (App.1984); see also State v. Chabolla-Hinojosa, 192 Ariz. 360, 965 P.2d 94 (App.1998). And, conversely, it must also be shown \\\"that the lesser cannot be committed without always satisfying the corresponding elements of the greater.\\\" In re Victoria K., 198 Ariz. 527, \\u00b6 17, 11 P.3d 1066, \\u00b6 17 (App.2000).\\n\\u00b622 That is the case here. A person cannot commit the class four offense of facilitated shoplifting under \\u00a7 13-1805(1) without necessarily committing the lesser offense of shoplifting under \\u00a7 13-1805(A). The lan guage of \\u00a7 13-1805(1) itself makes this clear. As noted above, the statute states that a \\\"person who commits shoplifting and . who in the course of shoplifting\\\" enters the store with something he or she intends to facilitate the shoplifting is guilty of a class four felony. In other words, this language makes the commission of shoplifting a necessary element of facilitated shoplifting, and thus, a person cannot commit the greater offense of facilitated shoplifting without necessarily committing the lesser offense of shoplifting. On the other hand, the person cannot commit the lesser offense of shoplifting -without satisfying all but one element of the greater offense of facilitated shoplifting, namely, that the person entered the store with something he or she intended to facilitate the shoplifting.\\n\\u00b6 23 Accordingly, in this case, Brown was entitled to his requested lesser-included offense instruction because shoplifting \\\"is in fact a lesser-included offense to [facilitated shoplifting] and . the evidence supported] the giving of the lesser-included instruction.\\\" Miranda, 200 Ariz. 67, \\u00b6 2, 22 P.3d 506, \\u00b6 2. Brown admitted he had intended to take the VCR and sell it to buy insulin, but denied he had entered the store intending to use the bag in which he carried his food and clothing to facilitate his shoplifting. The trial court thus erred in refusing the requested instruction. That error, however, did not prejudice Brown and does not require reversal of his conviction. State v. Rosas-Hernandez, 202 Ariz. 212, 42 P.3d 1177 (App.2002) (trial court's failure to give instruction not reversible error unless defendant prejudiced).\\n\\u00b624 In State v. LeBlanc, 186 Ariz. 437, 440, 924 P.2d 441, 444 (1996), the supreme court directed trial courts to \\\"give a 'reasonable efforts' instruction in every criminal case involving lesser-included offenses.\\\" That instruction permits jurors to consider a lesser offense \\\"if, after full and careful consideration of the evidence, they are unable to reach agreement with respect to the [greater offense because they] . either (1) find[ ] the defendant not guilty on the greater charge, or (2) after reasonable efforts cannot agree whether to acquit or convict on that charge.\\\" Id. at 438, 924 P.2d at 442.\\n\\u00b6 25 In this case, however, the trial court instructed the jurors to first consider the lesser offense of shoplifting and, only if they found Brown guilty of that offense, were they to then consider the interrogatory on the greater offense of facilitated shoplifting. Although this instruction reversed the procedural order of the instruction approved in LeBlanc, we find no substantive difference between the two. Both inform jurors that the greater offense includes a lesser offense and that they may find a defendant guilty of the lesser offense without also finding the defendant guilty of the greater offense. Both thus give the defendant an opportunity to argue, as Brown did here, that even though the state might have proven the lesser offense beyond a reasonable doubt, it had failed to so prove the greater offense. Accordingly, although we agree with Brown that the facilitation portion of \\u00a7 13-1805(1) creates a greater offense to the lesser offense of shoplifting under \\u00a7 13-1805(A) and that he was entitled to the lesser-included offense instruction prescribed by LeBlanc, we conclude that the trial court's instruction and interrogatory neither prejudiced Brown nor resulted in reversible error.\\n\\u00b626 We therefore affirm Brown's conviction and sentence.\\nPELANDER, Presiding Judge, concurring.\\n. 1993 Ariz. Sess. Laws, ch. 255, \\u00a7 32.\\n. Section 13-105(9)(a), A.R.S., provides that \\\" '[\\u00a1Intentionally' or 'with the intent to' means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct.\\\" We believe this definition includes the word \\\"intended.\\\"\"}"
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+"{\"id\": \"735446\", \"name\": \"STATE of Arizona, Appellee, v. David DeROSIER, Appellant\", \"name_abbreviation\": \"State v. DeRosier\", \"decision_date\": \"1982-07-29\", \"docket_number\": \"No. 5488-PR\", \"first_page\": \"154\", \"last_page\": \"157\", \"citations\": \"133 Ariz. 154\", \"volume\": \"133\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:21:19.108893+00:00\", \"provenance\": \"CAP\", \"judges\": \"HOLOHAN, C.J., GORDON, V.C.J., and CAMERON and FELDMAN, JJ., concur.\", \"parties\": \"STATE of Arizona, Appellee, v. David DeROSIER, Appellant.\", \"head_matter\": \"650 P.2d 456\\nSTATE of Arizona, Appellee, v. David DeROSIER, Appellant.\\nNo. 5488-PR.\\nSupreme Court of Arizona, En Banc.\\nJuly 29, 1982.\\nRehearing Denied Sept. 14, 1982.\\nRobert K. Corbin, Atty. Gen. by William J. Schafer, III, and Diane M. Ramsey, Asst. Attys. Gen., Phoenix, for appellee.\\nFrederic J. Dardis, Pima County Public Defender by Frank P. Leto, Asst. Public Defender, Tucson, for appellant.\", \"word_count\": \"984\", \"char_count\": \"5911\", \"text\": \"HAYS, Justice.\\nAfter a jury trial, David DeRosier was found guilty of violating A.R.S. \\u00a7 36-1002, possession of a narcotic drug. He was sentenced to four years probation.\\nIn a memorandum decision the Court of Appeals reversed and remanded. After rehearing was denied, both parties filed timely petitions for review which we granted. We take jurisdiction pursuant to A.R.S. \\u00a7 12-120.24 and 17 A.R.S. Rules of Criminal Procedure, rule 31.19. Decision of the Court of Appeals is vacated. Judgment of the trial court is affirmed.\\nTwo issues are presented by this case. First, did the trial court err in refusing to suppress evidence seized during a warrant-less search? Second, did the trial court err in instructing the jury that intoxication is not a defense to illegal possession of a narcotic drug?\\nOn August 29, 1980, after working outside all day, appellant entered a Tucson pizza parlor. He became intoxicated and passed out at his table. The restaurant manager summoned the police when he could not awaken appellant. Police officers aroused appellant and escorted him outside. He was told that the manager did not want him inside the restaurant.\\nDespite this admonition, appellant later went back inside the restaurant. He claimed he was looking for his cigarettes. The police officers observed appellant reenter the restaurant, then exit the restaurant under the manager's firm grasp. The officers arrested appellant for trespass. A subsequent search of appellant produced a small vial of cocaine.\\nAt trial, appellant stated that two strangers had approached him in the restaurant. They wanted to sell him drugs or to trade the drugs for pizza. He told them he was not interested and asked them to leave. One of the strangers was still at the table when appellant passed out. Appellant claims he had never seen the vial before the officer took it out of his pocket.\\nThe trial court refused to suppress the evidence of the cocaine. Over appellant's objection, the trial court instructed the jury that intoxication was not a defense to illegal possession of a narcotic drug.\\nSEARCH\\nAppellant contends the trial court erred in failing to suppress evidence of the cocaine because it was taken in a warrantless search. The trial court found that the officer personally observed appellant committing a misdemeanor, i.e., criminal trespass in the third degree, A.R.S. \\u00a7 13-1502. The officer was justified in arresting appellant in accordance with A.R.S. \\u00a7 13-3883(2), State v. Nixon, 102 Ariz. 20, 423 P.2d 718 (1967); State v. DeWoody, 122 Ariz. 481, 595 P.2d 1026 (App. 1979).\\nIt is well established that a police officer may make a full search of a person incident to a lawful custodial arrest. State v. Myers, 117 Ariz. 79, 89, 570 P.2d 1252, 1262 (1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978); State v. Susko, 114 Ariz. 547, 549, 562 P.2d 720, 722 (1977). The search here was pursuant to a lawful arrest. The officer was free to seize any criminal evidence. State v. Jackson, 112 Ariz. 149, 539 P.2d 906 (1975). We find no error.\\nJURY INSTRUCTION\\nAppellant contends the trial court erred in instructing the jury that intoxication is not a defense to the charge of unlawful possession of a narcotic drug. Appellant asserts that the cited authority for this instruction, A.R.S. \\u00a7 13-503, is unconstitutional. We held to the contrary in State v. Ramos, 133 Ariz. 4, 648 P.2d 119 (1982). The offense of possession of a narcotic substance requires the mental state of \\\"knowingly.\\\" Under the Ramos rationale the court was correct in refusing to give an instruction which would allow the jury to consider appellant's intoxication in determining his culpable mental state.\\nWhile the instruction given did not follow the wording of A.R.S. \\u00a7 13-503, we do not believe the jury was misled as to the law. The jury was additionally instructed that possession of a narcotic drug has three elements: one, the defendant must know he possessed a substance; two, the defendant must know that the substance is a narcotic drug, and three, the defendant must possess a usable amount of the narcotic drug. Further, the jury was instructed that the state must prove each element of the offense beyond a reasonable doubt. In light of all the instructions given, we find the jury was properly instructed on the law.\\nJudgment of the trial court affirmed.\\nHOLOHAN, C.J., GORDON, V.C.J., and CAMERON and FELDMAN, JJ., concur.\\n. A.R.S. \\u00a7 13-1502(A) provides:\\nA. A person commits criminal trespass in the third degree by:\\n1. Knowingly entering or remaining unlawfully on any real property after a reasonable request to leave by the owner or any other person having lawful control over such property, or reasonable notice prohibiting entry.\\n. A.R.S. \\u00a7 13-3883(2) provides:\\nA peace officer may, without a warrant, arrest a person:\\n2. When 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.\\n. A.R.S. \\u00a7 13-503 provides:\\nNo act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but when the actual existence of the culpable mental state of intentionally or with the intent to is a necessary element to constitute any particular species or degree of offense, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the culpable mental state with which he committed the act.\"}"
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+"{\"id\": \"737417\", \"name\": \"Thomas MAGANAS and Jane Doe Maganas, his wife, Defendants-Appellees, v. Porter NORTHROUP and Edith Northroup, his wife; and Transamerica Title Insurance Company of California, a California corporation, Defendants-Appellants\", \"name_abbreviation\": \"Maganas v. Northroup\", \"decision_date\": \"1983-05-04\", \"docket_number\": \"No. 16282-PR\", \"first_page\": \"573\", \"last_page\": \"577\", \"citations\": \"135 Ariz. 573\", \"volume\": \"135\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:28:30.614805+00:00\", \"provenance\": \"CAP\", \"judges\": \"GORDON, V.C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.\", \"parties\": \"Thomas MAGANAS and Jane Doe Maganas, his wife, Defendants-Appellees, v. Porter NORTHROUP and Edith Northroup, his wife; and Transamerica Title Insurance Company of California, a California corporation, Defendants-Appellants.\", \"head_matter\": \"663 P.2d 565\\nThomas MAGANAS and Jane Doe Maganas, his wife, Defendants-Appellees, v. Porter NORTHROUP and Edith Northroup, his wife; and Transamerica Title Insurance Company of California, a California corporation, Defendants-Appellants.\\nNo. 16282-PR.\\nSupreme Court of Arizona, En Banc.\\nMay 4, 1983.\\nRubin, Rubin & Cronin by Richard J. Rubin, Phoenix, for defendants-appellees.\\nJennings, Strouss & Salmon by Lee E. Esch, Phoenix, for defendants-appellants.\", \"word_count\": \"2415\", \"char_count\": \"14920\", \"text\": \"HOLOHAN, Chief Justice.\\nThis is the second occasion that the present case has been before this court. See Maganas v. Northroup, 112 Ariz. 46, 537 P.2d 595 (1975).\\nThe trial court in this matter initially granted appellants' Northroup and Transamerica Title Insurance Co., motion for summary judgment against appellee Maganas on grounds that appellee was not a licensed real estate broker or salesman in Arizona and, hence, barred by statute from collecting a real estate commission. Maganas appealed. We acquired jurisdiction of the appeal and vacated the summary judgment holding that the transaction was one for the sale of stock, not real estate, and that the sale was exempt from the Securities Act as an isolated sale by the bona fide owner pursuant to A.R.S. \\u00a7 44-1844(3). See Maganas v. Northroup, supra. Appellee, thus, was not barred from collecting a commission because of noncompliance with the licensing provisions of Arizona's Securities Act.\\nAfter remand to the Superior Court the parties submitted the issues to the trial court on a set of stipulated facts. The trial court entered judgment in favor of Maganas and against appellants, Northroup and Transamerica Title Insurance Co. (hereinafter Transamerica). The Northroups and Transamerica appealed, and the Court of Appeals reversed the trial court's judgment. We granted the petition of Maganas for review. The memorandum decision of the Court of Appeals is vacated, Maganas v. Northroup, No. 1 CA-CIV 5401, filed Sept. 23, 1982.\\nThe facts essential to the resolution of this case are that Porter and Edith Northroup, licensed Arizona real estate brokers, held a listing from Mary Martori for property called the \\\"Mary E\\\" Ranch. Mary Martori was the sole stockholder of the Fred G. Hilvert Co., Inc., the corporate owner of the ranch. The Northroups contacted D.C. McCredie, a California real estate broker, and his licensed salesman, Maganas, to assist in finding a purchaser. Any commission received from the sale was to be split one-third to Northroup and two-thirds to McCredie. In addition, there was an agreement that McCredie's two-thirds share was to be split 60% to appellee and 40% to McCredie.\\nMaganas secured a purchaser for the stock of the Fred G. Hilvert Co., Inc. As a result, an escrow was established with Transamerica which provided that the buyer, Kerr, would purchase all of the stock of the Hilvert Corporation, whose sole asset was the \\\"Mary E\\\" ranch.\\nThe escrow instructions provided for a broker's commission of $62,500.00. Edith Northroup, the Arizona broker, signed the escrow instructions on behalf of herself and as agent for McCredie and Maganas. Paragraph 56 of the escrow instructions provided:\\n\\\"Edith Northroup, by execution hereof, acknowledges that she, on behalf of herself, D.C. McCredie and Thomas McGannis [sic] has agreed to accept the sum of $62,500.00 as and for payment in full for all fees and commissions due solely from Seller by reason of their activities in connection with the purchase and sale of stock of the Fred G. Hilvert Co., Inc. and the Mary E. Ranch, and that payment shall be made by Seller as follows:\\n'(a) cash upon close hereof in the sum of $25,000.00,\\n'(b) a percentage of all amounts only and as received by the Seller on account of payment made on the primary note delivered by the Buyer, pursuant to paragraph 47(a) hereof, . . \\\"'\\nPursuant to the terms of the escrow, $25,-000 in cash was deposited with Transamerica as the amount of commission then due.\\nBefore disbursement could be made, Kerr, the buyer, filed suit, claiming that Maganas owed him money for costs incurred in negotiating the purchase. Kerr later agreed to a partial disbursement of the commission. Acting on amended escrow instructions, issued by Northroup and approved by McCredie, Transamerica distributed $8,333.34 to Northroup and $11,-833.33 to McCredie. This amendment was made without the knowledge or consent of Maganas. After the disbursements there remained $4,833.34. Transamerica was allowed to interplead that amount and Maganas successfully moved for summary judgment with respect to those funds.\\nAppellee also filed the current action against Northroup, McCredie and Transamerica, alleging generally that he was deprived of a substantial portion of his commission when Transamerica acted on a change of instructions from McCredie and Northroup which excluded him.\\nAppellee obtained a default judgment against McCredie in the amount of $9,167 actual damages and $9,000 for punitive damages. McCredie subsequently filed a petition for bankruptcy and was discharged.\\nAfter the case was submitted on the stipulated facts, the trial court entered judgment in favor of appellee finding that the escrow instructions named Maganas as a third party beneficiary of the contract between the buyer and seller and the Arizona brokers (Edith and Porter Northroup). In its formal judgment the trial court found:\\n\\\"1. That the transaction was a securities transaction, exempt under A.R.S. Section 44-1844(3) and that Maganas was therefore not excluded from receiving a commission on this transaction.\\n2. That Transamerica Title Insurance Company owed a duty to carry out the escrow instructions and breached its duty when it accepted a change of instructions from McCredie and Northroup which excluded Maganas.\\n3. That both the Northroups and Transamerica Title Insurance Company are liable for this breach of contract in the sum of $10,000.00, plus interest at the rate of six percent (6%) per annum from the date the escrow was paid less a credit of $4,073.34 which sum was paid to Maganas, plus six percent (6%) per annum on that sum from that date.\\n4. That there is no basis for a finding of punitive damages and the same are denied.\\\"\\nThe first issue raised on appeal is whether the trial court erred in finding that appellee was a third party beneficiary of the escrow agreement.\\nWhether a third-party is merely an incidental beneficiary, or one for whose express benefit the contract was entered into and therefore one who can maintain an action on the contract, is always a question of construction. Irwin v. Murphey, 81 Ariz. 148, 302 P.2d 534 (1956). The construction of the contract is a question of law for the court. Hadley v. Southwest Properties, Inc., 116 Ariz. 503, 570 P.2d 190 (1977).\\nIn its minute entry of January 4, 1980, the trial court found:\\n\\\"The escrow instructions provide that he [appellee], as a third party beneficiary of a contract between a buyer and seller in Arizona, and the two participating brokers, would receive part of the commission. Mrs. Northroup signed those es crow instructions for herself as the Arizona broker, McCredie, the California broker, and Maganas, the California salesman. Transamerica accepted those instructions and had a duty to carry them out. This duty was breached when it accepted a change of instructions from McCredie and Northroup which excluded Maganas. This was a clear breach of Northroup's and Transamerica's contractual duties.... \\\"\\nThere is ample evidence in the record to support the trial court's conclusion that Maganas was a third party beneficiary. On its face the contract indicates the parties' intent to recognize the appellant as a direct beneficiary of the escrow agreement. Paragraph 56 of the escrow instructions specifically named the appellee as one entitled to share in the commission of $62,500. It provided that Edith Northroup, the Arizona broker, would accept disbursement of the commission individually and as agent for Maganas and McCredie. The contract manifests the parties' intent to confer a direct benefit on Maganas. The trial court was correct in holding Maganas was a third-party beneficiary of the escrow agreement and hence entitled to maintain an action on the contract.\\nThe second issue presented for review is whether the trial court erred in finding Transamerica liable for negligent breach of the escrow agreement.\\nMaganas contends that Transamerica violated its fiduciary duty as escrow agent when it accepted amended escrow instructions from Northroup which changed the method of disbursement of the commission without his consent.\\nThe relationship of the escrow agent to the parties to the escrow is one of trust and confidence. Tucson Title Insurance Co. v. D'Ascoli, 94 Ariz. 230, 383 P.2d 119 (1963). The escrow relationship gives rise to two distinct fiduciary duties. The first is the escrow agent's duty of strict compliance. An escrow agent's duty to its respective principals is to act in strict accordance with the terms of the escrow agreement. Malta v. Phoenix Title & Trust Co., 76 Ariz. 116, 259 P.2d 554 (1953). Deviation from those terms without the mutual consent of the parties concerned will subject the agent to liability for damages caused by such deviation. Tuscon Title Insurance Co. v. D'Ascoli, supra. The second duty incident to the escrow relationship is the escrow agent's duty to disclose known fraud. Recently, in Berry v. McLeod, 124 Ariz. 346, 604 P.2d 610 (1979), we held:\\n\\\"Generally, there is no duty to disclose information received by an escrow agent unless such a duty is required by the terms of the agreement, but we hold that there is an exception to the foregoing rule when the escrow agent knows that a fraud is being committed on a party to an escrow and the failure of the escrow agent to disclose the information of the fraud will assist in accomplishing the fraud; under such conditions the escrow agent has a duty to disclose the facts actually known.\\\" 124 Ariz. at 352, 604 P.2d at 616, emphasis in original.\\nMaganas does not argue, nor does the record reveal, that Transamerica violated any specific term of the escrow agreement. Transamerica's transgression, if any, lies in its acceptance of amended escrow instructions from Northroup which changed the method of disbursement of the commission without the knowledge or consent of Maganas.\\nThe question becomes whether Transamerica's acceptance of amended escrow instructions was a deviation from the terms of the escrow so as to constitute a breach of its duty of strict compliance. We answer the question in the negative.\\nThe record reveals that the amendment was executed without Maganas' signature or consent. The record also reveals, however, that the appellee appointed Edith Northroup as his agent to represent him in the execution of the escrow documents. She signed the escrow agreement on his behalf. And, under the escrow instructions, she was to receive the entire broker's commission on behalf of herself and as agent for Maganas and McCredie. Maganas specifically clothed Northroup with authority to act on his behalf with respect to his share of the broker's commission. As we stated in Brutinel v. Nygren, 17 Ariz. 491, 154 P. 1042 (1916):\\n\\\"So far as the authority of an agent involves the rights of innocent third persons, who have relied upon the character bestowed upon the agent, the principal is bound equally by the authority which he actually gives and by that which by his own act he appears to give, and this is true, whether we call the agency a special or a general one.\\\" 17 Ariz. at 498, 154 P. at 1045.\\nTransamerica was not obligated to obtain appellee's consent to the amended instructions, since the amendment was submitted and executed by his own agent. Nor was Transamerica obligated to question Northroup's authority to amend the escrow and direct payment of a portion of the commission to someone other than herself, since the original escrow instructions gave her authority to receive the entire commission. We find therefore that Transamerica did not breach its duty of strict compliance.\\nWe are also unable to find Transamerica liable under the disclosure rule announced in Berry v. McLeod, supra. In Berry, we held that an escrow agent's duties extend beyond the express instructions in an escrow agreement where the escrow agent's failure to disclose a fraud will assist the perpetration of the fraud. That duty to disclose information not required by the escrow agreement exists only when the agent \\\"knows that a fraud is being committed on a party to an escrow.\\\" Berry v. McLeod, supra, (emphasis in original). The stipulated facts are insufficient to support a conclusion that Transamerica knew of any fraud. The appellee appointed Northroup as his agent to represent him in the execution of the escrow documents. Transamerica was entitled to rely on Northroup's authority to act on Maganas' behalf with respect to the commission.\\nThe final issue raised on appeal is whether there is sufficient evidence in the record to support the trial court's finding that appellee was entitled to 60% of McCredie's two-thirds share of the commission.\\nIn their stipulation of facts submitted to the trial court, the parties incorporated by reference facts found in this courts previous opinion.\\n\\\"19. The Az.S.Ct. acquired jurisdiction over the appeal pursuant to 17(a) A.R.S., S.Ct. Rule 47(E)(5), and on June 26, 1975, filed the formal written opinion reversing the summary judgment entered by the Honorable Philip W. Marquardt of April 20, 1972. The parties have agreed that the Court may consider such pleadings as it deems relevant and the formal written opinions of the Court of Appeals and the Supreme Court in connection with its deliberations and determination of the issues herein.\\\" Stip. of Facts, No. 109 in instruments of record on appeal.\\nIn our previous opinion in this litigation we stated:\\n\\\"The escrow instructions also provided for a commission of $62,500.00 to be divided, one-third to the Northroups and the remaining two-thirds to be paid 40% to McCredie and 60% to Maganas.\\\" Maganas v. Northroup, 112 Ariz. at 47, 537 P.2d at 596.\\nParties to litigation are bound by their stipulations unless relieved therefrom by the court. See Industrial Park Corp. v. U.S.I.F. Palo Verde Corp., 19 Ariz.App. 342, 507 P.2d 681 (1973).\\nThe record supports the conclusion that Northroup was aware of McCredie's and Maganas' method of sharing the commission. She acted as agent for them in the execution of the escrow documents. When she instructed Transamerica to pay the entire two-thirds to McCredie without securing the consent of Maganas, she failed to live up to the requirements of her agency and is liable in damages.\\nAccordingly, we affirm the judgment of the trial court against Edith Northroup, but we reverse the judgment against Transamerica.\\nGORDON, V.C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.\"}"
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+"{\"id\": \"737538\", \"name\": \"STATE of Arizona, Appellee, v. Genaro CELAYA, Appellant\", \"name_abbreviation\": \"State v. Celaya\", \"decision_date\": \"1983-01-17\", \"docket_number\": \"No. 5288\", \"first_page\": \"248\", \"last_page\": \"257\", \"citations\": \"135 Ariz. 248\", \"volume\": \"135\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T18:28:30.614805+00:00\", \"provenance\": \"CAP\", \"judges\": \"HOLOHAN, C.J., GORDON, Y.C.J., and CAMERON and FELDMAN, JJ., concur.\", \"parties\": \"STATE of Arizona, Appellee, v. Genaro CELAYA, Appellant.\", \"head_matter\": \"660 P.2d 849\\nSTATE of Arizona, Appellee, v. Genaro CELAYA, Appellant.\\nNo. 5288.\\nSupreme Court of Arizona, En Banc.\\nJan. 17, 1983.\\nRehearing Denied March 15, 1983.\\nRobert K. Corbin, Atty. Gen. by William J. Schafer III, and David R. Cole, Asst. Attys. Gen., Phoenix, for appellee.\\nFrederic J. Dardis, Pima County Public Defender by Lawrence H. Fleischman, Asst. Public Defender, Tucson, for appellant.\", \"word_count\": \"4513\", \"char_count\": \"27064\", \"text\": \"HAYS, Justice.\\nJerry Celaya was convicted of armed robbery, A.R.S. \\u00a7 13-1904, and first degree felony-murder, A.R.S. \\u00a7 13 \\u2014 1105(A)(2). He was sentenced to life on the murder charge and to a concurrent term of ten and one-half years for the robbery. We have jurisdiction of the appeal pursuant to Ariz. Const, art. 6 \\u00a7 5 and A.R.S. \\u00a7 13-4031.\\nOn November 30, 1979, Jerry Celaya and John Walker, an undercover narcotics agent with the Department of Public Safety (DPS), met at the Tucson airport to conduct a sale of cocaine. After the purported exchange of drugs took place, the appellant shot and killed John Walker.\\nAt trial, the appellant presented evidence that he was a long-time informant for various law-enforcement agencies concerned with narcotics. His story is that several years ago he met a Mexican drug dealer in connection with his informant activities for the Federal Drug Enforcement Administration. Celaya began hearing persistent rumors that the Mexican dealer wanted to kill him. Fearing for his life, Celaya eventually formulated a plan whereby he would pretend to sell drugs but would instead steal the money from the drug purchaser and use it to bribe Mexican officials to arrest the Mexican drug dealer.\\nJohn Walker heard through another informant working for DPS that Celaya sought a purchaser of cocaine. He planned to go undercover and pose as a buyer in order to arrest Celaya in the act of selling drugs. On the agreed-upon day, the two men met at the Tucson airport where DPS agents had taken up surveillance. The agents watched as Celaya took a bag from Walker's car, put it in his own vehicle, took a rectangular bag from his trunk and carried it to Walker's car. Celaya's container of \\\"drugs\\\" that he delivered to Walker held only clothes and old shoes. Appellant then reached in and snatched the keys from Walker's car ignition. At this point the shooting of Walker occurred.\\nWhen the officers reached the car, they found Walker, his arm limp by his side, clutching his gun, safety released, cocked and a full magazine and an unfired round in the chamber. At trial the state attempt ed to prove that Walker drew his weapon after he was shot. Celaya testified that, after snatching the car keys, he saw Walker pull his gun and heard a clicking sound. Only then, claims Celaya, did he draw his own gun and shoot Walker in self-defense. Celaya then ran to his own car where he was apprehended.\\nOn appeal Celaya asserts seven issues:\\n1. Did the trial court err in rejecting appellant's lesser-included theft instruction?\\n2. Did the trial court err in rejecting appellant's self-defense instructions?\\n3. Did the trial court err in rejecting appellant's requested instructions on the defense of apparent authority?\\n4. Did the trial court err in rejecting appellant's requested instructions on the lesser-included offenses for homicide?\\n5. Did the trial court err in denying appellant's motion to dismiss for failure by the state to comply with disclosure of requested exculpatory evidence?\\n6. Was evidence of appellant's prior bad acts improperly admitted?\\n7. Did the giving of the state's \\\"flight\\\" instruction constitute an unconstitutional comment on the evidence?\\nI. INSTRUCTION ON THEFT\\nA. Is Theft a Lesser-included Offense of Robbery?\\nThe jury convicted the defendant of armed robbery and first degree murder under the felony-murder statute. Celaya argues that he was at most guilty of theft, not robbery, and that the trial court erred by refusing to charge the jury on the crime of theft. The appellant objected at trial and sufficiently preserved the record.\\nRule 23.3, Rules of Criminal Procedure, 17 A.R.S., requires that a lesser-included offense be submitted to the jury:\\n\\\"Forms of verdicts shall be submitted to the jury for all offenses necessarily included in the offense charged, .\\\"\\nAn instruction on a lesser-included offense is proper under Rule 23.3 if the crime is a lesser-included offense to the one charged and if the evidence otherwise supports the giving of the instruction. State v. Dugan, 125 Ariz. 194, 195, 608 P.2d 771, 772 (1980). To constitute a lesser-included offense, the offense must be composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one. State v. Malloy, 131 Ariz. 125, 639 P.2d 315 (1981).\\nWhether theft is a lesser-included offense of robbery under the new criminal code is an issue of first impression to this court. It is well established that under the old criminal code theft was a lesser-included offense. State v. Dugan, supra. Recently, in State v. Yarbrough, 131 Ariz. 70, 73, 638 P.2d 737, 740 (App.1981), the Arizona Court of Appeals held that theft is a lesser-included offense of robbery under the new code. The court reasoned that robbery as defined under the new code \\\"necessarily includes an exercise of control over property as contemplated by the definition of theft in A.R.S. \\u00a7 13-1802(A)(1)\\\" because \\\"one cannot take property without exercising control over it.\\\"\\nAfter reviewing the cases, we find the reasoning of Yarbrough persuasive and hold that theft as defined in A.R.S. \\u00a7 13-1802(A)(1) is a lesser-included offense of robbery, A.R.S. \\u00a7 13-1902. The state argues that theft is not a lesser-included offense because there is a mens rea for theft not present in robbery. However, A.R.S. \\u00a7 13-202(B) prescribes that an appropriate mental state will be judicially read into statutes which \\\"necessarily involve\\\" a culpable mental state. It is clear that specific intent is an element of robbery. State v. Broadfoot, 115 Ariz. 537, 566 P.2d 685 (1977).\\nB. Does the Evidence Support the Giving of a Theft Instruction?\\nWe now consider whether on the evidence introduced at trial the jury could rationally find that the state failed to prove an element of the greater offense. That element must be required to convict of the greater, but not of the lesser offense, it must necessarily distinguish the greater from the lesser, State v. Dugan, supra, 125 Ariz. at 195, 608 P.2d at 773, and it must be in dispute. State v. Yarbrough, supra, 131 Ariz. at 73, 638 P.2d at 740. If the jury could rationally find that the state failed to prove that the taking of property was accomplished by force, but did in fact prove all the other elements, the jury could return a guilty verdict for theft.\\nAppellant and the state present two conflicting versions of the shooting. According to Celaya, the victim voluntarily gave the money to the appellant who carried the money bag to his own vehicle where he placed it on the front seat prior to returning to the victim's car. Statements by a witness corroborate this contention.\\nThe state argues that under no version of the facts could the jury have found that appellant did not employ force in order to obtain or retain control of Walker's money. California, cited as authority by the state, has adopted the minority rule that any force used prior to the escape of a robber to a place of temporary safety elevates the crime from theft to robbery. People v. Anderson, 64 Cal.2d 633, 51 Cal.Rptr. 238, 414 P.2d 366 (1966). This is not the law in Arizona. Arizona Revised Statutes \\u00a7 13-1902 requires that the element of force be found to have been used to either take the property or to resist the retaking of the property. However, robbery is not committed when the thief has gained peaceable possession of the property and uses no violence except to resist arrest or effect his escape. See Bauer v. State of Arizona, 45 Ariz. 358, 43 P.2d 203 (1935).\\nState v. Rodriquez, 125 Ariz. 319, 320, 609 P.2d 589, 590 (App.1980) cited by the state, explains a crucial concept regarding the taking of property by force. The case involves a drug transaction where one of the parties was an undercover narcotics agent. The agent gave the defendant $83,-000 so that the defendant could count it as a preface to the drug transaction. After counting it, the defendant threatened the agent with a gun in order to keep the money in his possession. In response to the defendant's appeal that since he took the money without the use of force his conduct was theft and not robbery, the court noted there is a distinction between possession and custody. Although the defendant had custody of the money, the narcotics agent did not relinquish possession or control of the money until he felt he was going to be shot. Since control (as contrasted with custody) of the money was obtained by force, a robbery occurred.\\nIf the jury believed Celaya's version of the facts, they could rationally find that he gained control of Walker's money without threat of force and that the taking of the money was complete when Celaya put the bag in his own car. The state attempted to argue in closing at trial that, even if there was no robbery of the money, at least there was a robbery of the car keys. Although the state does not address this in its appellate brief, we mention it here for purposes of remand. Again we find that the jury could rationally believe that Celaya snatched the car keys without force and that the resulting homicide of Walker occurred after the taking of the car keys was complete. Since the evidence before the jury would have supported a conviction of theft and an acquittal of robbery, Celaya was entitled to the requested lesser-included instruction.\\nC. Was the Defendant Prejudiced by the Failure to Give the Theft Instruction?\\nThe state argues that the appellant was not prejudiced by the failure to instruct the jury on theft since the court did instruct the jury that: \\\"If you find that the defendant committed a theft rather than a robbery, then you must find him not guilty of both murder and robbery,\\\" and defined theft for them. The United States Supreme Court has stated that the jury's option of refusing to return any verdict at all, thus causing a mistrial, is not an adequate substitute for proper instructions on lesser-included offenses. The option of convicting on a lesser-included offense affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal and ensures the defendant the full benefit of the reasonable-doubt standard. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Where a defense theory is reasonably supported by the evidence, it is reversible error not to give it, and the court should have submitted forms of verdict covering theft. State v. Govorko, 23 Ariz.App. 380, 533 P.2d 688 (1975).\\nWe hold that the appellant was prejudiced by the trial court's failure to charge the jury on theft. We reverse appellant's robbery conviction. Because appellant's first degree murder conviction under A.R.S. \\u00a7 13-1105(A)(2), felony-murder, was predicated on appellant's having committed robbery, we also reverse the murder conviction.\\nII. INSTRUCTIONS ON SELF-DEFENSE\\nThe trial court rejected appellant's requested instructions on self-defense stating that self-defense is not an available plea to one charged under the felony-murder statute. Celaya argues that the failure to give the instructions violated his fifth-, sixth-, eighth-, and fourteenth-amendment rights. His first contention is that the preclusion of the plea of self-defense establishes a rule of law whereby a police officer may commit murder upon a person involved in a felony. This, Celaya asserts, denies him due process of law. We find no merit to this argument for several reasons.\\nIt is appellant's position that Walker drew his weapon and unsuccessfully tried to fire it prior to any suggestion of physical force by Celaya. Celaya's defense is that Walker, a police officer, was attempting to arrest him but exceeded the amount of physical force allowed by law by not announcing his authority and purpose. Celaya argues that he was therefore justified in protecting himself under A.R.S. \\u00a7 13-404(BX2).\\nAppellant's reading of the statute is incorrect. Arizona Revised Statutes \\u00a7 13-404(B)(2) justifies one's use of force to resist an arrest \\\"that the person knows or should know is being made by a peace officer . \\\" if that officer is using force in excess of that allowed by law. By his own testimony, Celaya did not know Walker was a peace officer. Whether Walker exceeded the amount of physical force necessary to effect an arrest is not a relevant subject of inquiry.\\nThe general rule in homicide cases is that the plea of self-defense is not available to one who is at fault in provoking the difficulty that resulted in homicide. State v. Moore, 112 Ariz. 271, 540 P.2d 1252 (1975). Where it is uncontroverted that the accused was at fault in provoking the difficulty which necessitated the defensive use of force, the court should refuse to instruct on self-defense. State v. Williams, 132 Ariz. 153, 156, 644 P.2d 889, 892 (1982). The evidence in this case conflicts as to who provoked the violence. Appellant contends that Walker was the aggressor, while the state claims that Walker reflexively drew his gun after he was shot. Since evidence was presented to corroborate both stories, the issue of provocation is not uncontroverted.\\nThe inferences and conclusions to be drawn from the respective versions of the facts are intricately woven together. At issue is not whether a homicide occurred during the commission of a felony, but rather, whether a robbery occurred so as to invoke the felony-murder rule. Having decided above that Celaya is entitled to have his version of the facts presented to the jury, i.e., that he committed theft not robbery, we must also hold that the jury be instructed on self-defense in connection with the robbery charge.\\nHowever, the facts compel us to hold that the jury not be instructed on self-defense in connection with the felony-murder charge. If the jury finds that a robbery was committed, they must then decide whether Walker was killed during the commission of or flight from the felony so as to trigger the felony-murder rule. State v. Jimenez, 130 Ariz. 138, 634 P.2d 950 (1981). Because the killing of Walker is the element of force which here distinguishes between robbery and theft, the evidence will not support a plea of self-defense. \\\"When the felony is so entwined with the murder that it is part of that murder we will not hold a stopwatch on the events or artificially break down the actions of the defendant into separate components in order to avoid the clear intent of the legislature in enacting the felony-murder rule.\\\" State v. Richmond, 114 Ariz. 186, 190, 560 P.2d 41, 45 (1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977).\\n\\\"[A] person engaged in the commission of the crime of robbery which calls into action defensive forces against him the activity of which results in the death of a human being is guilty of murder in the first degree.\\\" State v. Howes, 109 Ariz. 255, 257, 508 P.2d 331, 333 (1973), quoting from State v. Hitchcock, 87 Ariz. 277, 350 P.2d 681 (1960). In a felony-murder prosecution, a person who is found by the jury to be engaged in an attempted robbery must be considered the initial aggressor; it is immaterial whether the victim of the robbery or the defendant fired first. People v. Guraj, 105 Misc.2d 176, 431 N.Y.S.2d 925 (1980). \\\"[T]he accused cannot set up in his own defense a necessity which he brought upon himself.\\\" State v. Jones, 95 Ariz. 4, 8, 385 P.2d 1019, 1021 (1963),\\nAppellant incorrectly asserts that State v. Clayton, 109 Ariz. 587, 514 P.2d 720 (1973), entitles one who provokes an incident, charged with felony-murder, to self-defense instructions. The defense theory in Clayton was that the defendant had completed the crime of burglary and was attempting to surrender when the victim shot at him. Because the victim in Clayton was not killed during the defendant's commission of or flight from the felony, the defendant's act of homicide was arguably outside the scope of the felony-murder rule and instructions on self-defense were properly submitted to the jury.\\nCelaya's defense does not fall under the Clayton rule; he does not argue that the felony was completed before Walker was killed. Celaya consistently argued that no felony occurred but rather, a theft. We hold that on remand, instructions on self-defense should not be given to the jury in connection with the felony-murder charge. This resolution, in light of the fact that Celaya may argue his version of the facts to the jury, guarantees due process to the appellant.\\nCelaya next contends that the \\\"strained application\\\" of the felony-murder rule to this case violates the eighth amendment because the punishment disproportionately exceeds that which is retributively justified. It is clear from the above discussion that, if the jury finds that a robbery occurred, the application of the felony-murder rule will not be \\\"strained.\\\" This is precisely the type of case the legislature intended the statute to govern. State v. Richmond, supra.\\nFinally, Celaya asserts that any substantive rule of law which provides for a conclusive presumption of mens rea is subject to constitutional scrutiny. Many courts have entertained the constitutionality of the felony-murder doctrine. We quote from State v. Goodseal, 220 Kan. 487, 553 P.2d 279, 286 (1976), wherein they said: \\\"The felony-murder rule, designed as it is to protect human life, represents sound public policy, is reasonably related to the end sought to be accomplished and is not constitutionally impermissible.\\\"\\nIII. INSTRUCTIONS ON THE DEFENSE OF APPARENT AUTHORITY\\nAt trial, appellant introduced much evidence pertaining to his past informant activities with various law-enforcement agencies in support of his theory that he had the \\\"apparent authority\\\" to devise a scheme to rid himself of the threat of the Mexican drug dealer. At the end of the trial, the court rejected appellant's proposed instructions setting forth this theory; appellant now claims error in that rejection.\\nAppellant cites United States v. Barker, 546 F.2d 940 (D.C.Cir.1976), in support of his \\\"apparent authority\\\" defense. Barker, a case which arose out of the Watergate scandal, carved out a very limited exception to the general rule that a mistake of law will not excuse the commission of an offense. The Barker defendants successfully argued on appeal that they be allowed a defense based upon their good faith, reasonable reliance on E. Howard Hunt's apparent authority to break into a room and steal copies of medical records.\\nWe have held that it is no defense that a person did not know his act was unlawful or that he believed it to be lawful. State v. Morse, 127 Ariz. 25, 617 P.2d 1141 (1980). A.R.S. \\u00a7 13-204(B). The facts of this case do not compel us to create an exception to this rule. Unlike Barker, Celaya was not ordered by anyone to meet Walker at the Tucson airport to take his money, nor does he so contend. Celaya admits he devised the scheme on his own. His personal belief that it was proper to bend the law when engaged in narcotics enforcement is not analogous to Barker wherein that court recognized that \\\"in certain situations there is an overriding societal interest in having individuals rely on the authoritative pronouncements of officials whose decisions we wish to see respected.\\\" United States v. Barker, supra, 546 F.2d at 947.\\nIV. INSTRUCTIONS ON THE LESSER-INCLUDED HOMICIDE OFFENSES\\nAppellant contends that the trial court's refusal to instruct the jury on the lesser-included offenses for homicide was error and that it violated his due process rights under Beck v. Alabama, supra. First, we note that there is no lesser-included homicide offense of the crime of felony-murder and failure to instruct thereon does not constitute error. State v. Arias, 131 Ariz. 441, 641 P.2d 1285 (1982).\\nIn a potential death penalty case, the court has a duty to instruct on every degree of homicide embraced in the information and supported by the evidence. State v. Dalglish, 131 Ariz. 133, 639 P.2d 323 (1982). But where the sole defense is self-defense so that the evidence requires either conviction or acquittal, any instruction on any other grade would be impermissible. State v. Jones, 109 Ariz. 80, 505 P.2d 251 (1973).\\nThe only theory offered by the appellant and supported by the evidence is that Celaya killed Walker in self-defense. The trial court did not err in refusing to instruct the jury on the lesser-included homicide offenses.\\nV. DISCLOSURE OF EVIDENCE\\nAppellant claims the state has failed to comply with Brady requirements for disclosure of exculpatory evidence crucial to their defense of apparent authority. While admitting that he does not know if the evidence exists, appellant asserts that if it does exist, it is extremely important to the defenses advanced. We have reviewed the record and find nothing to indicate that such Brady material exists; we cannot entertain an issue based upon a mere suspicion of the appellant. Furthermore, the issue is moot in light of our holding that the defense of apparent authority is inapplicable under Arizona law.\\nVI. ADMISSION OF EVIDENCE OF PRIOR BAD ACTS\\nAppellant objects to two instances where evidence relating to prior bad acts was admitted. Prior to trial, Celaya made a motion to preclude the introduction of prior bad acts. The court accordingly ordered the state not to introduce such evidence without first raising its admissibility and method of proof with the court. Contrary to this order, one of the state's witnesses told the jury that Celaya had once been a narcotics violator. Celaya immediately objected and moved for mistrial.\\nTestimony regarding prior offenses may come into evidence only in certain circumstances. 17A A.R.S., Arizona Rules of Evidence, rule 404(b). The testimony here is not relevant under rule 404(b), State v. Holsinger, 124 Ariz. 18, 601 P.2d 1054 (1979), nor under rule 404(a)(1), to impeach the defendant's character. While we certainly do not condone a direct violation of a court order, we hold that Celaya was not prejudiced by this testimony. Appellant himself freely testified about his involvement in the transportation and distribution of marijuana in 1973.\\nDuring the cross-examination of a drug-enforcement agent, the state elicited the agent's observation that drug informants were \\\"crooks\\\" and \\\"criminal elements.\\\" Appellant moved for a mistrial on the ground that the prosecutor insinuated by his questions that Celaya was a crook. Appellant now submits reversible error was committed.\\nThe record does not indicate for what purpose the prosecutor sought this testimony. A mistrial or reversal is warranted only if it appears reasonably possible that error might have materially influenced the jury. State v. Grier, 129 Ariz. 279, 630 P.2d 575 (App.1981).\\nThe state contends that the term \\\"crook\\\" was used throughout the trial to refer to an individual suspected of criminal activity and that the prosecutor was referring to informants in general. A review of the dialogue indicates that any reference that Celaya was a crook was tenuous at most and harmless in light of appellant's own testimony concerning his past participation in criminal activity.\\nVII. FLIGHT INSTRUCTION\\nAppellant objects to the following jury instruction on the ground that it constitutes unconstitutional comment on the evidence in violation of the Arizona Constitution, article VI, section 27:\\n\\\"Running away or hiding after a crime has been committed does not itself prove guilt. You may consider any evidence of the defendant's running away or hiding together with all the other evidence.\\\"\\nAfter Walker was shot, appellant ran to his car where several agents converged on him before he could drive away. Appellant testified at trial that he had intended to drive to a nearby DEA office to summon medical aid for the victim. Appellant argues that the jury instruction presumes he did in fact flee from the scene of the crime.\\nWe have held that such a jury instruction on flight does not constitute comment on the evidence. State v. Hatton, 116 Ariz. 142, 568 P.2d 1040 (1977). Merely leaving the scene of a crime is not evidence of flight; before flight instructions can be given, there must be evidence of open flight, as upon pursuit, or concealment, and the manner of leaving the scene must reveal a consciousness of guilt. State v. Clark, 126 Ariz. 428, 616 P.2d 888, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). Running, rather than walking from the scene of a crime may provide evidence of a guilty conscience. State v. Lujan, 124 Ariz. 365, 604 P.2d 629 (1979).\\nThere is sufficient evidence of open flight upon pursuit by Celaya from the scene of the homicide to warrant the giving of the flight instruction. The instruction is sufficiently conditional to allow the jury to decide whether appellant's precipitous exist from the area was in search of medical aid or 'whether 'it was an attempt to escape. Furthermore, the jury was instructed to disregard any instructions which they found not to apply after they had determined the facts. We hold the trial court did not err in giving the flight instruction.\\nWe have reviewed the record for fundamental error pursuant to A.R.S. \\u00a7 13-4035(B) and find none.\\nThe judgment of conviction is reversed and the case is remanded.\\nHOLOHAN, C.J., GORDON, Y.C.J., and CAMERON and FELDMAN, JJ., concur.\\n. Dugan states that the words \\\"necessarily included\\\" are not synonymous with the words \\\"lesser included\\\" and indicates that the latter refers to the relationship of two crimes because of a similarity in their legal elements, whereas the former refers to the relationship which exists because of the evidence in a given case. The two-part test required for an instruction to be proper under Rule 23.3 contemplates this distinction.\\n. Theft is defined in the new code at A.R.S. \\u00a7 13-1802(A)(1): \\\"A person commits theft if, without lawful authority, such person knowingly: (1) Controls property of another with the intent to deprive him of such property; .\\\"\\n. Arizona Revised Statutes \\u00a7 13-1902(A) provides: \\\"A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining the property.\\\" Arizona Revised Statutes \\u00a7 13-1904 provides: \\\"A. A person commits armed robbery if in the course of committing robbery as defined in \\u00a7 13-1902, such person or his accomplice: 1. Is armed with a deadly weapon; or 2. Uses or threatens to use a deadly weapon or dangerous instrument . \\\"\"}"
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+"{\"id\": \"739656\", \"name\": \"STATE of Arizona, Appellee, v. James WESLEY, aka Curtis Simmons, Appellant\", \"name_abbreviation\": \"State v. Wesley\", \"decision_date\": \"1982-01-15\", \"docket_number\": \"No. 5236\", \"first_page\": \"246\", \"last_page\": \"249\", \"citations\": \"131 Ariz. 246\", \"volume\": \"131\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-10T19:08:45.071312+00:00\", \"provenance\": \"CAP\", \"judges\": \"GORDON, V. C. J., and STRUCKMEYER, HAYS and CAMERON, JJ., concur.\", \"parties\": \"STATE of Arizona, Appellee, v. James WESLEY, aka Curtis Simmons, Appellant.\", \"head_matter\": \"640 P.2d 177\\nSTATE of Arizona, Appellee, v. James WESLEY, aka Curtis Simmons, Appellant.\\nNo. 5236.\\nSupreme Court of Arizona, En Banc.\\nJan. 15, 1982.\\nRobert K. Corbin, Atty. Gen. by William J. Schafer, III, Gerald R. Grant, Asst. At-tys. Gen., Phoenix, for appellee.\\nRoss P. Lee, Maricopa County Public Defender by Charles R. Krull, Deputy Public Defender, Phoenix, for appellant.\", \"word_count\": \"1498\", \"char_count\": \"9175\", \"text\": \"HOLOHAN, Chief Justice.\\nAppellant, James Wesley aka Curtis Simmons, was convicted of attempted robbery after he entered a guilty plea pursuant to a plea agreement. Appellant challenged that conviction and we assumed jurisdiction pursuant to Rule 47(e)(5), Rules of Supreme Court, 17A A.R.S.\\nThe pertinent facts are as follows: Appellant was charged with attempted robbery to which he pled not guilty. After the preliminary hearing a plea agreement was reached whereby appellant agreed to plead guilty to attempted robbery in exchange for the state's withdrawal of an allegation of prior conviction. The plea agreement also contained a stipulation that appellant would receive a sentence no greater than two years in the custody of the Department of Corrections.\\nThe court questioned appellant and determined that he knowingly, voluntarily, and intelligently entered his plea of guilty. The court accepted appellant's plea and sentenced him to confinement for two years with credit for time served. The sentence was ordered to run consecutive to any prison time imposed upon appellant because of a revocation of parole.\\nAppellant challenges the sentence and the conviction as being based upon an invalid guilty plea and as contrary to his plea agreement. Appellant raises three issues for determination on appeal:\\nI. Did the trial court's failure to advise appellant' of the possibility of consecutive sentences render appellant's plea of guilty unintelligent?\\nII. Was appellant's sentence contrary to the stipulation contained in the plea agreement?\\nIII. Did the trial court properly determine the voluntariness of appellant's guilty plea?\\nCONSECUTIVE SENTENCES\\nRule 17.2(b), Rules of Criminal Procedure, 17 A.R.S. requires the court to determine, before accepting a guilty plea, that the defendant understands the nature and range of possible sentence he could receive, including any statutory \\\"special conditions regarding sentence.\\\" Appellant argues that his guilty plea was not intelligently made because the trial court did not advise him of the possibility that his sentence could be ordered to run consecutive to a sentence he was already serving on parole.\\nWe have held that the possibility of receiving consecutive sentences is not a \\\"special condition regarding sentence\\\" contemplated by Rule 17.2(b). State v. Gordon, 125 Ariz. 425, 610 P.2d 59 (1980). Neither is that possibility a consequence that must be disclosed to the defendant under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). State v. Gordon, supra; State v. Defoy, 109 Ariz. 159, 506 P.2d 1053 (1973); State v. Young, 106 Ariz. 589, 480 P.2d 345 (1971); State v. Tritle, 16 Ariz. App. 45, 490 P.2d 1173 (1971). There is no constitutional right to receive concurrent sentences for two separate offenses. State v. Young, supra. Furthermore, we are of the opinion that the requirements of Rule 17.2(b) as well as those of Boykin do not apply to a consequence so obvious as separate punishments for separate crimes. Appellant must be presumed to have been aware of the possibility of consecutive sentencing. State v. Young, supra; see State v. McCallister, 107 Ariz. 143, 483 P.2d 558 (1971). We note that the ninth circuit is in accord with our holding that a trial court is not required to advise a defendant of the possibility of consecutive sentences before accepting his plea of guilty. United States v. Hamilton, 568 F.2d 1302 (9th Cir. 1978), cert. denied, 436 U.S. 944, 98 S.Ct. 2846, 56 L.Ed.2d 785 (1978); Johnson v. United States, 460 F.2d 1203 (9th Cir. 1972), cert. denied, 409 U.S. 873, 93 S.Ct. 206, 34 L.Ed.2d 125 (1972).\\nPLEA AGREEMENT\\nAs part of the plea agreement the parties stipulated that appellant would receive a sentence no greater than two years in the custody of the Department of Corrections. Appellant argues that by ordering the sentence to run consecutive to any prison time he might receive as a result of a parole violation proceeding, the court sentenced him contrary to the plea agreement without affording him an opportunity to withdraw his plea pursuant to Rule 17.4, Rules of Criminal Procedure, 17 A.R.S.\\nDuring the proceedings the court explained to appellant various sentencing possibilities and concepts. Within the explanation was the following exchange.\\nTHE COURT: Do you understand that under this agreement I have the discretion to decide whether or not you will go to prison for a maximum of two years which would begin as of the date you went to jail, which was about three months ago?\\nMR. SIMMONS: Yes, a little over, I believe it was four.\\nTHE COURT: Whatever it was, that would be the date your prison term would start. (R.T. of 6/26/80 at 4.)\\nAppellant contends that the quoted material illustrates that all the parties understood the agreement to mean appellant would be in prison for no longer than two years from the date he was initially incarcerated for the offense. We cannot adopt appellant's interpretation of the exchange. The court made it clear immediately following the quoted exchange that the sentencing decision would not be made until the presentence investigation had been conducted. The context of the conversation reveals that the court was merely explaining the concept of credit given against a sentence for time already served rather than expounding its interpretation of the plea agreement. There is no indication that the trial judge was aware of the fact that the defendant was on parole.\\nWe believe appellant received exactly the sentence he bargained for, that is, not longer than two years incarceration for the offense to which he pied guilty. That the sentence was ordered to commence upon the end of a prior sentence appellant was then serving did not constitute an enlargement of either sentence. The plea agreement was identified by the instant cause number and dealt only with the charge of attempted robbery. If the parties had intended the stipulated sentence to encompass matters outside of that charge, they could have so stated. The sentence is not contrary to the plea agreement.\\nVOLUNTARINESS OF PLEA\\nThe trial court did not specifically inform appellant that by pleading guilty he gave up his right to confront and cross-examine witnesses, his right to remain silent and be presumed innocent, or his right to plead not guilty. Appellant contends that the court failed to question appellant directly to establish that the plea was not the result of force, threats, or promises.\\nWe have repeatedly held that if it can be ascertained from an examination of the record that the defendant was aware of his rights, the judge's error in not advising him thereof shall be regarded as technical rather than reversible. State v. Levario, 118 Ariz. 426, 577 P.2d 712 (1978); State v. Rios, 113 Ariz. 30, 545 P.2d 954 (1976); State v. Tiznado, 112 Ariz. 156, 540 P.2d 122 (1975).\\nIn the instant case the record includes the plea agreement signed by appellant and his attorney. The agreement contains a paragraph, which appellant individually initialled, setting forth the constitutional rights of which appellant claims he was not made aware. The transcript of appellant's hearing reveals that the court did, in fact, ascertain that appellant had read and signed the plea agreement, reviewed it with his attorney, and understood that he was waiving the listed constitutional rights. Furthermore, defense counsel signed an avowal in the plea agreement that he had discussed the case in detail with his client and advised him of his constitutional rights and all defenses.\\nWe think it clear from the record that appellant was informed of and voluntarily waived his rights of confrontation and cross-examination, and his rights to remain silent and be presumed innocent.\\nThe record shows that appellant initially entered a plea of not guilty and subsequently changed his plea as a result of the plea agreement. Such a showing conclusively demonstrates appellant's knowledge of the right to plead not guilty. State v. Wilson, 131 Ariz. 96, 638 P.2d 1342, (1981); State v. Lopez, 27 Ariz.App. 626, 557 P.2d 558 (1976).\\nFinally, we disagree with appellant's contention that the court failed to establish that his plea was not the result of force, threats, or promises. In the absence of any indication in the record or allegation by appellant that such force, threats, or promises existed, the trial court's repeated questioning of appellant as to whether he entered the plea of his own free will is sufficient to show the voluntary nature of the plea.\\nHaving examined the record and determined that a factual basis for the plea of guilty exists, and having held the plea to have been voluntarily made, we affirm the judgment and sentence of the trial court.\\nGORDON, V. C. J., and STRUCKMEYER, HAYS and CAMERON, JJ., concur.\"}"
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+"{\"id\": \"806832\", \"name\": \"HOME BUILDERS ASSOCIATION OF CENTRAL ARIZONA, a non-profit Arizona corporation; for and on behalf of all similarly situated; Grupe Development Co., Inc., and Arizona corporation; Knoell Bros. Construction, Inc., an Arizona corporation; Marlborough Development Corporation, an Arizona corporation, Plaintiffs-Appellees, v. CITY OF SCOTTSDALE, a municipal corporation, Herbert R. Drink-Water, Rene Wendell, James D. Bruner, Kathryn Campana, Myron R. Deibel, William Soderquist, and Bill Walton, members of the City Council of the City of Scottsdale, Defendants-Appellants\", \"name_abbreviation\": \"Home Builders Ass'n v. City of Scottsdale\", \"decision_date\": \"1997-01-07\", \"docket_number\": \"No. CV-95-0160-PR\", \"first_page\": \"479\", \"last_page\": \"487\", \"citations\": \"187 Ariz. 479\", \"volume\": \"187\", \"reporter\": \"Arizona Reports\", \"court\": \"Arizona Supreme Court\", \"jurisdiction\": \"Arizona\", \"last_updated\": \"2021-08-11T00:20:20.806847+00:00\", \"provenance\": \"CAP\", \"judges\": \"FELDMAN, C.J., ZLAKET, V.C.J., and MOELLER and MARTONE, JJ., concur.\", \"parties\": \"HOME BUILDERS ASSOCIATION OF CENTRAL ARIZONA, a non-profit Arizona corporation; for and on behalf of all similarly situated; Grupe Development Co., Inc., and Arizona corporation; Knoell Bros. Construction, Inc., an Arizona corporation; Marlborough Development Corporation, an Arizona corporation, Plaintiffs-Appellees, v. CITY OF SCOTTSDALE, a municipal corporation, Herbert R. Drink-Water, Rene Wendell, James D. Bruner, Kathryn Campana, Myron R. Deibel, William Soderquist, and Bill Walton, members of the City Council of the City of Scottsdale, Defendants-Appellants.\", \"head_matter\": \"930 P.2d 993\\nHOME BUILDERS ASSOCIATION OF CENTRAL ARIZONA, a non-profit Arizona corporation; for and on behalf of all similarly situated; Grupe Development Co., Inc., and Arizona corporation; Knoell Bros. Construction, Inc., an Arizona corporation; Marlborough Development Corporation, an Arizona corporation, Plaintiffs-Appellees, v. CITY OF SCOTTSDALE, a municipal corporation, Herbert R. Drink-Water, Rene Wendell, James D. Bruner, Kathryn Campana, Myron R. Deibel, William Soderquist, and Bill Walton, members of the City Council of the City of Scottsdale, Defendants-Appellants.\\nNo. CV-95-0160-PR.\\nSupreme Court of Arizona, En Banc.\\nJan. 7, 1997.\\nCarmichael & Powell, P.C. by Ronald W. Carmichael, Sid A. Horwitz, Brian A. Hatch, Claudia J. Resnick, Phoenix, for Plaintiffs/Appellees.\\nLieberman, Dodge, Sendrow & Gerding, Ltd. by Marc R. Lieberman, Susan G. Sendrow, Phoenix, and Fredda J. Bisman, Scottsdale City Attorney by Barbara R. Goldberg, Scottsdale, for Defendants/Appellants.\\nSnell & Wilmer by Regina L. Nassen, Clague A. Van Slyke, Tucson, for Amicus Curiae. Southern Arizona Home Builders Association.\\nShelley & Bethea by J. LaMar Shelley, Mesa, for Amicus Curiae League of Arizona Cities and Towns.\", \"word_count\": \"4876\", \"char_count\": \"29690\", \"text\": \"OPINION\\nCHARLES E. ARES, Judge Pro Tem.\\nDriven by the Groundwater Management Act of 1980 to drastically reduce its dependence on underground water, the City of Scottsdale imposed a water resources development fee on all new realty developments. The Home Builders Association of Central Arizona (HBA), some of whose members paid the fee under protest, challenged in superior court the fee's validity under Arizona's enabling act, A.R.S. \\u00a7 9-468.05. The trial court declared the fee invalid on the ground that Scottsdale's plans to acquire new water were too speculative to confer a beneficial use on the developer, as required by the statute.\\nThe court of appeals reversed that decision because the trial judge had failed to accord proper deference to the Scottsdale city council's legislative decision to adopt the fee. The court held the development fee was entitled to a presumption of validity and that the HBA had not proven that the city's decision was arbitrary. Home Builders Ass'n v. City of Scottsdale, 179 Ariz. 5, 13, 875 P.2d 1310, 1318 (App.1993) (Home Builders I).\\n. This court granted review but remanded the case for reconsideration in light of the recent United States Supreme Court decision in Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). On reconsideration, the court of appeals reaffirmed its initial decision, holding that Dolan did not dictate a different result. Home Builders Ass'n v. City of Scottsdale, 183 Ariz. 243, 902 P.2d 1347 (App.1995) (Home Builders II).\\nThe case is now before us on petition for review. We must determine the validity of the city's development fee under A.R.S. \\u00a7 9-463.05 and in light of the takings law of the United States. We hold Scottsdale's fee valid.\\nI. FACTUAL BACKGROUND OF THE SCOTTSDALE FEE\\nThe Groundwater Management Act of 1980, A.R.S. \\u00a7 45-401 to 704 (1987 & Supp.), requires municipalities to reduce their dependence on groundwater by achieving safe yield \\u2014 a balance between the amount of underground water pumped out of the aquifers and the amount naturally and artificially recharged. Because Scottsdale has a contract to receive surface water from the Central Arizona Project (CAP), it is statutorily deemed to have an assured water supply; however, by the year 2001 the city must demonstrate to the state director of water resources that in fact it has sufficient water supplies to meet its developing needs for 100 years. (This deadline has now been moved to January 1, 1998. A.R.S. \\u00a7 45-576(E).) Before adopting the development fee at issue here, the city undertook a detailed study of the water resources needed to comply with the Groundwater Management Act. The study, 'Water Resources Plan 1985,\\\" concluded that Scottsdale clearly lacks sufficient water for the future. It also found that Scottsdale would need to raise capital to acquire new supplies of surface water and to construct a system to transport that water.\\nAnticipating the need for more water, Scottsdale had already purchased Planet Ranch and its surface water rights in the Bill Williams River in La Paz and Mohave Counties. City planners proposed that water from Planet Ranch be brought to the city through a canal system tied to the CAP. Planet Ranch cost more than $11 million, and the cost of carrying the water to the CAP aqueduct was estimated at $18 million more. In addition, the water resources plan pro posed the city increase its recharge capacity by constructing Water Factory 21, an advanced effluent treatment plant that would produce potable water. Other sources of surface water such as the purchase or lease of water rights from various native American tribes were also outlined in the plan.\\nTo assist in accumulating capital, the plan proposed the adoption of a development fee for all new real estate developments. The city council adopted Ordinance No.1940, imposing a fee of $1,000 per single family residence, $600 per apartment unit, and $2,000 per acre foot of estimated water consumption for other new uses. The fees are imposed as a condition on the approval of new developments.\\nII. STATUTORY VALIDITY OF SCOTTSDALE FEE\\nA. Trial Court Findings\\nHBA challenged the Scottsdale fee for failing to meet the requirements of the enabling statute:\\nA.R.S. \\u00a7 9-463.05. Development fees; imposition by cities and towns\\nA. A municipality may assess development fees to offset costs to the municipality associated with providing necessary public services to a development.\\nB. Development fees assessed by a municipality under this section are subject to the following requirements:\\n1. Development fees shall result in a beneficial use to the development.\\n2. Monies received from development fees assessed pursuant to this section shall be placed in a separate fund and accounted for separately and may only be used for the purposes authorized by this section. Interest earned on monies in the separate fund shall be credited to the fund.\\n3. The schedule for payment of fees shall be provided by the municipality. The municipality shall provide a credit toward the payment of a development fee for the required dedication of public sites and improvements provided by the developer for which that development fee is assessed. The developer of residential dwelling units shall be required to pay development fees when construction permits for the dwelling units are issued.\\n4. The amount of any development fees assessed pursuant to this section must bear a reasonable relationship to the burden imposed upon the municipality to provide additional necessary public services to the development. The municipality, in determining the extent of the burden imposed by the development, shall consider, among other things, the contribution made or to be made in the future in cash by taxes, fees or assessments by the property owner towards the capital costs of the necessary public service covered by the development fee.\\n5. If development fees are assessed by a municipality, such fees shall be assessed in a non-discriminatory manner.\\n(Emphasis added.)\\nHBA's principal witness was Leonard Dueker, the director of the city's Water Resources Department and author of 'Water Resources Plan 1985,\\\" who testified in detail about the city's need for new water and its plans to obtain it. Taken as a whole, the evidence overwhelmingly supported the city's decision that it needed more water. The trial court found HBA failed to prove Scottsdale had an adequate water supply for the foreseeable future. The court also found the city reasonably could have concluded that it needed to acquire new water resources. Findings of Fact Nos. 10 and 11. The trial court held, as a matter of law, the enactment of the development fee in this case was a legislative decision within the discretion of the city council. Conclusion of Law No. 4. Despite that conclusion, the court held any benefit to the developers who were assessed the fee was too remote in time and speculative in nature to satisfy the benefit criterion of \\u00a7 9-463.05(B)(l). Finding of Fact No. 13, Conclusion of Law No. 6. The record discloses that the trial judge's conclusion in this respect was based on Dueker's testimony that it was possible Planet Ranch water might never be brought to Scottsdale if an alternative source of water were developed. At the time of trial, Scottsdale was exploring the possibility of obtaining surface water from the San Carlos Apache Tribe; in addition, no specific plans for building the canal system to carry Planet Ranch water to Scottsdale had yet been developed. Testimony indicated that if San Carlos water could be obtained, Scottsdale might try to sell Planet Ranch to the U.S. Fish and Wildlife Service or the Bureau of Land Management.\\nB. Presumption of Validity of Legislative Actions\\nWe agree with the court of appeals that the trial judge committed error. The adoption of Ordinance No.1940 was a legislative act that came to the court cloaked with a presumption of validity. City of Phoenix v. Fehlner, 90 Ariz. 13, 17, 363 P.2d 607, 609 (1961). Land use regulations of general application will be overturned by the courts only if a challenger shows the restrictions to be arbitrary and without a rational relation to a legitimate state interest. Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926); Cardon Oil Co. v. City of Phoenix, 122 Ariz. 102, 104, 593 P.2d 656, 658 (1979); see also Edwards v. State Bd. of Barber Examiners, 72 Ariz. 108, 112-13, 231 P.2d 450, 452 (1951). Development or impact fees are presumed valid as exercises by legislative bodies of the power to regulate land use.\\nIt is important to recognize just what the presumption means. It means, first, that the factual underpinning for the city council's decision, i.e., that the city needed more water, must stand unless shown to be without factual support. Clearly, HBA failed to make that showing. Second, the presumption also means that the wisdom of Scottsdale's choice of methods of meeting its water needs is a legislative, not a judicial, question. The purchase of Planet Ranch may not have been, as HBA has asserted, a wise one, but that question is not for this or any other court. Arizona Downs v. Arizona Horsemen's Foundation, 130 Ariz. 550, 556-57, 637 P.2d 1053, 1059-60 (1981); see also Rochlin v. State, 112 Ariz. 171, 174, 540 P.2d 643, 646 (1975). The only issue finally before the trial court, aside possibly from the reasonableness of the fee, was whether the fee conferred a benefit as required by the statute.\\nWe have difficulty understanding this question to be an open one of fact. Scottsdale needs more water. If it does not get it before the deadline for reaching safe yield, it must stop approving new development. Both state zoning laws and the Groundwater Code prohibit the approval of a subdivision plat unless it is supported by a certificate of an assured water supply. See A.R.S. \\u00a7 9-463.05(1), 45-576(B). The fee will be used to acquire new water supplies, and the city will be able to move toward its goal of demonstrating an assured 100-year water supply. Developers who pay the fee and thus contribute to the capital needed for water surely will receive a benefit from the city's ability to approve new developments. Without the assurance of a water supply, developers would be unable to develop and market their land.\\nC. Concreteness of Benefit Conferred\\nThe real fault with Scottsdale's fee, as found by the trial court, was not its failure to confer a benefit in fact but that the means chosen by the city were not sufficiently concrete and immediate to satisfy the requirement of \\u00a7 9 \\u2014 463.05.\\n1. Deference to Legislative Decisions\\nThis was error in two respects. First, it led the court into the realm of legislative choices. When the court required assurance that whatever plans Scottsdale had developed at the time of adopting the fee would actually be followed, it undertook to test the wisdom and practicability of the city's legislative decisions. There was no evidence that the plans were a sham or inherently improbable, just that they might, in a search for economy, be changed. Scottsdale was dealing with a complex, ever-changing problem in predicting future growth and water needs. The city's decision to impose a development fee to be used to acquire the water needed to meet future needs was based on substantial evidence. Onee plausible plans for acquiring that water had been adopted, whether to persist in those plans over the several years the project would require is surely a legislative, not judicial, decision. Courts must accord municipalities considerable deference and upset their legis lative decisions only if they are shown to be arbitrary and without factual justification.\\n2. Beneficial Use/Benefit Conferred\\nSecond, the trial court's finding that the Scottsdale plan was too amorphous and speculative rested on an unarticulated but erroneous construction of \\u00a7 9-463.05. The trial court implied that the statute requires plans more mature and \\\"locked in\\\" than Scottsdale's were. Such a reading of the statute was incorrect.\\nWhere the language of a statute is clear and unambiguous, courts are not warranted in reading into the law words the legislature did not choose to include. Mid Kansas Fed. Savings & Loan Ass'n v. Dynamic Dev. Corp., 167 Ariz. 122, 128, 804 P.2d 1310, 1316 (1991). The plain language of \\u00a7 9-463.05 contains no such requirement as the trial judge imposed here. It simply requires that the fee confer a beneficial use on the developer.\\n3. Development Fees\\nA development or impact fee is not a special assessment levied on a landowner whose property is immediately benefitted by access to such public improvements as sidewalks, sewers, and water works. In those cases, the legislature has required \\\"preliminary plans that show the location and the type and character of the proposed improvements and estimates of the cost and expenses,\\\" as a basis for calculating the precise amount of the assessment. A.R.S. \\u00a7 48-577; see also Home Builders Ass'n v. Riddel, 109 Ariz. 404, 407, 510 P.2d 376, 379 (1973). With this more restrictive legislation already in place, the legislature adopted the development fee statute without such limiting language. The omission seems to us significant. Interestingly, when the proposal to authorize development fees was first introduced in the Arizona Senate as Senate Bill 1197, it required a development fee to confer a direct benefit on the developer. That term was dropped from the bill before final passage. Quite clearly, the legislature did not intend to require development fees to rest on such concrete plans as are mandated for special assessments.\\nWe also believe that a requirement such as the one the trial judge read into the statute would be incompatible with the nature of the development fee and would thwart the apparent purpose of the legislature. Development or impact fees are designed to assist in raising the capital necessary to meet needs that surely will arise in the foreseeable future but whose precise details may not at the outset be quite clear. To require more fixed and certain plans would make it difficult, if not impossible, to prepare in advance for the consequences of continued growth.\\nD. Determining the Benefit\\nNevertheless, \\u00a7 9-463.05 requires that the fee result in a benefit to the developer, and because the term is not self-defining, courts must necessarily pour content into it. That content must be derived, however, from the legislature's intent, as faithfully as the courts can determine it. Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991). State courts had developed a fairly large body of law regarding the validity of development or impact fees by the time \\u00a7 9 \\u2014 463.05 was adopted. See generally Brian W. Blaesser & Christine M. Kutopp, Impact Fees: The \\\"Second Generation,'' 38 Wash. U.J. Urb. & Contemp. L. 55 (1990); Julian C. Juergensmeyer & Robert M. Blake, Impact Fees: An Answer to Local Governments' Capital Funding Dilemma, 9 Fla. St. U.L. Rev. 415 (1981). Read together, the state cases have produced a widely accepted standard for assessing the validity of these fees. See, e.g., Collis v. City of Bloomington, 310 Minn. 5, 246 N.W.2d 19 (1976); College Station v. Turtle Rock Corp., 680 S.W.2d 802 (Tex.1984); Jordan v. Village of Menomonee Falls, 28 Wis.2d 608, 137 N.W.2d 442 (1965). That standard requires first that the exaction imposed on the developer be factually related to the need for public services created by the proposed development. Second, the nature and extent of the exaction must bear a reasonable relationship to that portion of the public burden created by the proposed development. Jordan, 137 N.W.2d at 447-49. This test, only slightly modified, was adopted by the Supreme Court as the standard required by the Takings Clause of the Fifth Amendment. Dolan, 512 U.S. at 390, 114 S.Ct. at 2319 (1994).\\n1. Statutory Development Fees\\nUnder the Arizona statute, a development fee can only be imposed to help pay the costs of providing public services to a proposed development. The fees are rationally related to a need created by the development; when they are spent to provide the needed services, the developer benefits. Our legislature adopted \\u00a7 9-463.05 in light of the law developed by state courts. As the court of appeals noted in this case, the statute tracks the elements of the predominant state standard. Home Builders I, 179 Ariz. at 9, 875 P.2d at 1314. The benefit criterion of \\u00a7 9-463.05 is explicit and requires the fee to bear a reasonable relationship \\\"to the community burden.\\\"\\nAn examination of cases applying what is sometimes called the dual nexus test reveals that development fees have been upheld where they are imposed to finance public improvements the need for which will arise in the foreseeable, though not immediate, future. Jordan, 137 N.W.2d at 446-47 (schools, parks and recreation needs); Collis, 310 Minn. 5, 246 N.W.2d 19 (parks and playgrounds); Call v. City of West Jordan, 606 P.2d 217 (Utah 1979) (flood control, parks and recreational facilities).\\nIn none of these cases was the benefit to the developer limited to concrete plans for specific developments. In Call, for example, the Utah Supreme Court dealt with a municipal requirement that subdividers dedicate seven percent of each subdivision, or its cash equivalent, for flood control, parks, and recreation facilities. Even though the relevant statute permitted the fees to be deposited in the general fund and did not require their expenditure to benefit the affected subdivision alone, the court upheld the exaction because the flexibility required for planning for the expansion of a city militated against more stringent controls on the city's discretion in using the funds. The court assumed that the funds, as a public trust, would be used for the purposes for which the fees were imposed, but it declined to read into the statute greater limitations than the legislature had expressed. Call, 606 P.2d at 220.\\nThere is nothing in the history of development fees in state courts to suggest that our legislature intended, by its use of the term \\\"beneficial use,\\\" to require the benefit to be based on \\\"locked in\\\" or unchangeable plans. Scottsdale is faced with a long term, complex series of projects designed to meet the requirements of the Groundwater Management Act. We would be reluctant to deprive the city of the flexibility needed to deal with these projects unless the legislature made it clear that it intended no such flexibility. Given the plain language of \\u00a7 9-463.05, we hold it has not done so.\\n2. Segregation of Fees\\nThe trial judge may have been concerned that a broad reading of the benefit criterion might tempt a city to use the development fee as an unequal tax for the benefit of its general treasury. The very terms of the statute guard against that possibility. They require the fees to be segregated and used only for the purpose for which they were imposed. \\u00a7 9-463.05(B)(2). We are sensitive to the need to ensure that development fees are not used to impose on developers a burden all the taxpayers of a city should bear equally. The value of land a developer seeks to develop will be enhanced by the acquisition of water that is essential to new development. The developer thus receives a special benefit in new public services, and \\u00a7 9-463.05 ensures that he will pay his fair share of its capital cost. See generally Hollywood, Inc. v. Broward County, 431 So.2d 606 (Fla.App.1983).\\nWe hold that \\u00a7 9-463.05 requires that when a municipality, in its legislative discretion, decides that new developments will require additional public services, it need only develop such plans as will indicate a good faith intent to use development fees to provide those services within a reasonable time. It is clear that Scottsdale's fee meets this standard.\\nIII. REASONABLE RELATIONSHIP\\nHaving found that the trial court erred as to the benefit, the court of appeals remanded the case for a determination whether the fee bore a reasonable relationship to the burden placed on the city. After careful consideration of the record, we conclude that the reasonableness of the fee was not in issue before the trial court and that remand is unwarranted.\\nHBA had the burden of showing that Scottsdale's fee bore no reasonable relationship to the public burden created by the proposed development. The only evidence it offered on this question came in Dueker's testimony about the formula by which the fee was calculated and the data on which the fee rested. See Exhibit 33, \\\"Water Resources Plan 1985\\\"; Testimony of Leonard Dueker, Reporter's Transcript (R.T.), Sept. 30, 1991, at 84. Using the costs of various alternatives, the city water staff calculated that the approximate capital cost of acquiring and bringing an acre foot of new water to Scottsdale was between $2,000 and $2,500. Historical data showed that a single family dwelling in Scottsdale uses about one-half an acre foot per year and that apartments use about three-tenths of an acre foot per year. The development fee was therefore set at $1,000 for single family dwellings, $600 per unit for apartment dwellings and $2,000 per estimated acre foot of consumption by other uses. HBA did not offer any other evidence on the reasonableness of the fee or actually challenge the amount of the fee. Instead, its attack was simply that Scottsdale's plans were too amorphous. Moreover, before the end of the trial, the judge indicated that he had no concern with the reasonableness issue. He specifically ruled that \\\"the two issues to be determined by trial are 1) the future need for water supply and 2) benefit to the developer.\\\" Minute Entry, Oct. 2, 1991. Before the city rested, its counsel raised the question whether it should call an economist to testify to the reasonableness of the fee. The judge made it quite clear that he viewed such testimony as irrelevant to any issue then before him. Counsel for HBA, in somewhat elliptical terms, agreed. As a result, Scottsdale rested without offering such evidence. R.T., Oct. 3, 1991, at 44-47. Although it is true the judge later concluded the Scottsdale fee \\\"is excessive on new development,\\\" it is apparent this conclusion flowed from his erroneous finding that the fee conferred no benefit on developers. See Conclusion of Law No. 9. In his view, any fee that conferred no benefit would, by definition, be excessive.\\nFinally, at oral argument, counsel for HBA assured this court that the amount of the fee was not in issue. Under these circumstances, we see no justification for remanding for further consideration.\\nIV. IMPACT OF DOLAN\\nThis case was tried as though the only issue involved was whether the fee met statutory requirements. The court of appeals held that it did. On remand after the Supreme Court's decision in Dolan, the court concluded that Dolan did not dictate a different result. Home Builders II, 183 Ariz. 243, 902 P.2d 1347. We agree, but our reasoning is somewhat different.\\nThe Supreme Court, in Dolan, dealt with an individually tailored demand that the landowner dedicate a certain portion of her property to the city for flood control and a pedestrian/bike path as a condition of approving a building permit. The Court granted certiorari to determine \\\"the required degree of connection between the ex-actions imposed by the city and the projected impacts of the proposed development.\\\" Dolan, 512 U.S. at 374, 114 S.Ct. at 2312. Adopting the predominant test developed by the state courts, the Supreme Court held that the exaction must bear a roughly proportional relationship to the community burden created by the proposed development. \\\"Roughly proportional\\\" is actually a term substituted for \\\"reasonable relationship\\\" to avoid confusion with \\\"rational basis\\\" as a standard of scrutiny. Id. at 390, 114 S.Ct. at 2319. The Court also held that in the case of an adjudicative decision demanding dedication of particular property, as distinguished from a legislative decision, the burden shifts to the city to justify its exaction. Id. at 391 n. 8, 114 S.Ct. at 2320 n. 8.\\nWe agree with the court of appeals that Dolan is inapplicable to this case for two reasons. In light of our holding that the reasonableness of the amount of the Scotts dale fee was not raised in the trial court, whether that fee is roughly proportional to the burden imposed on the community was likewise not in question. HBA did not argue that there was no reasonable relationship between the amount of the fee and the community burden as required by the statute. There was, therefore, no occasion to apply the Dolan test in this case.\\nEven if the issue of reasonableness had been before the trial court, we agree with the court of appeals that Dolan is distinguishable. In Dolan, the Chief Justice was careful to point out that the case involved a city's adjudicative decision to impose a condition tailored to the particular circumstances of an individual case. Id. Because the Scottsdale case involves a generally applicable legislative decision by the city, the court of appeals thought Dolan did not apply. We agree, though the question has not been settled by the Supreme Court. See Parking Ass'n v. City of Atlanta, 264 Ga. 764, 450 S.E.2d 200 (1994), cert. denied, \\u2014 U.S. -, -, 115 S.Ct. 2268, 2269, 132 L.Ed.2d 273 (1995) (Thomas, J., dissenting). We note, however, that there may be good reason to distinguish the Dolan adjudicative decision from the Scottsdale legislative one. Ehrlich v. City of Culver City, 12 Cal.4th 854, 50 Cal.Rptr.2d 242, 911 P.2d 429 (1996), cert. denied, \\u2014 U.S. -, 117 S.Ct. 299, 136 L.Ed.2d 218 (1996), dramatically illustrates the differences between the two exactions. In Ehrlich, the city had imposed an individually tailored $280,000 mitigation fee as a condition of approving a rezoning request. On remand from the United States Supreme Court for reconsideration in light of Dolan, the California Supreme Court held the record insufficient to show that the fee was roughly proportional to the public burden of replacing recreational facilities that would be lost as a result of rezoning Ehrlich's property. The California court suggested that the Dolan analysis applied to cases of regulatory leveraging that occur when the landowner must bargain for approval of a particular use of its land. Id. 50 Cal.Rptr.2d at 251, 911 P.2d at 438. The risk of that sort of leveraging does not exist when the exaction is embodied in a generally applicable legislative decision.\\nDolan may also be distinguished from our case on another ground. There, the city demanded that Mrs. Dolan cede a part of her property to the city, a particularly invasive form of land regulation that the court believed justified increased judicial protection for the landowner. Here, Scottsdale seeks to impose a fee, a considerably more benign form of regulation. See Commercial Builders v. Sacramento, 941 F.2d 872 (9th Cir. 1991).\\nThe Supreme Court's opinions in Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), and Dolan have occasioned a great deal of speculation whether ultimately the Court will hold that the Takings Clause demands a higher degree of scrutiny than has traditionally been applied in land regulation cases. See Jonathan M. Block, Limiting the Use of Heightened Scrutiny to Land-Use Exactions, 71 N.Y.U. L. Rev. 1021, 1024 n.154 (1996). Nothing in the Court's opinions requires us to plunge into the thicket of the levels of scrutiny in this case.\\nThe relationship of the fee to the burden and the appropriate standard of review were not in issue here. Even if they were, the Dolan standard of rough proportionality is already applicable in Arizona through the reasonable relationship requirement of \\u00a7 9-463.05(B)(4). For all these reasons, Dolan did not require the court of appeals to decide the case differently.\\nV. DISPOSITION\\nWe approve the court of appeals' opinion except as it remanded the case to the trial court for further proceedings. We reverse the trial court's judgment and remand the case with directions to enter judgment for the City of Scottsdale.\\nFELDMAN, C.J., ZLAKET, V.C.J., and MOELLER and MARTONE, JJ., concur.\\nROBERT J. CORCORAN, J., (retired) did not participate in this matter; pursuant to Ariz. Const, art. VI, \\u00a7 3, CHARLES E. ARES, Judge Pro Tem., Arizona Court of Appeals, Division Two, was designated to sit in his stead.\"}"
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