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AZAPP Blog Your resource for news and analysis of cases in Arizona's appellate courts.

AZAPP Blog - 2018

Dec
12
2018

Justice Pelander to retire from the Arizona Supreme Court. (12/11/2018)

News

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Dec
12
2018

Election of new Chief Justice and Vice Chief Justice of the Arizona Supreme Court (11/19/2018)

Justice Brutinel will become Chief Justice and Justice Timmer will become Vice Chief Justice on July 1, 2019.

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Dec
12
2018

Ahmad v. State (11/13/2018)

Arizona Court of Appeals Division One holds that a remittitur order must either state with particularity the trial court’s grounds for granting it or be supported by substantial evidence in the record.

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Dec
10
2018

Waltz Healing Ctr., Inc. v. Ariz. Dep’t of Health Servs. (12/4/2018)

Arizona Court of Appeals Division One holds that an application to register a medical marijuana dispensary must show that the proposed dispensary is, at the time of the application, in compliance with local zoning restrictions.

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Dec
7
2018

Roe v. Austin (11/29/2018)

Arizona Court of Appeals Division Two holds that moving to property, working on the property, and paying for furnishings and finishings on the property is not sufficient to invoke the part-performance exception to the statute of frauds.

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Dec
7
2018

Bank of New York Mellon v. Dodev (11/20/2018)

Arizona Court of Appeals Division One holds that dismissal without prejudice is not a final appealable order that divests superior court of jurisdiction during pendency of appeal and party may file answer without waiving appealability of the superior court’s personal jurisdiction over that party.

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Dec
7
2018

Burns v. City of Tucson (11/23/2018)

Arizona Court of Appeals Division Two holds that Arizona’s relocation-assistance statutes do not provide a private right of action.

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Nov
21
2018

Dupray v. JAI Dining Servs. (Phx.), Inc. (11/15/2018)

Arizona Court of Appeals Division One holds that in some negligence cases, a specific jury instruction on intervening and superseding cause is required.

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Nov
15
2018

Molera v. Reagan (10/26/2018)

Arizona Supreme Court invalidates the Invest in Education Act initiative because the summary description on its signature petitions omits material provisions and creates a significant danger of confusion or unfairness to those who signed the petitions.

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Nov
15
2018

Carey v. Soucy (10/30/2018)

The Arizona Court of Appeals Division One holds that there is no right to a jury trial in garnishment proceedings with respect to whether an assignment would constitute a fraudulent transfer.

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Nov
12
2018

Hoffman v. Reagan (11/1/2018)

Arizona Supreme Court holds that measures referred to the people by the legislature are “acts” subject to the single subject rule, and that a measure which proposes multiple amendments to the same act does not violate the rule.

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Nov
12
2018

City of Tucson v. Tanno (10/10/2018)

Arizona Court of Appeals Division Two holds that, under the project influence doctrine, property owners in eminent domain cases may only present evidence of the effect of the project for which the property is condemned on the value of their property.

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Nov
5
2018

Starr Pass Resort Devs., LLC v. Harrington (10/10/2018)

Arizona Court of Appeals Division Two holds that a party can use property to post a supersedeas bond.

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Oct
23
2018

Doneson v. Farmers Ins. Exch. (10/3/2018)

Arizona Court of Appeals Division Two holds that an insurance policy exclusion for injuries that “require” workers’ compensation benefits applies when the injured party is entitled to such benefits, even if he ultimately repays the benefits.

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Oct
23
2018

Judson C. Ball Revocable Tr. v. Phx. Orchard Grp. I, LP (10/2/2018)

Arizona Court of Appeals Division One holds that to have standing, a plaintiff in a derivative action must continue to possess an interest in the entity on whose behalf it sues throughout the litigation.

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Oct
11
2018

Sherring v. Indus. Comm’n of Ariz. (8/9/2018)

Arizona Court of Appeals Division Two holds that when employment is conditioned on passing a physical examination, and an injury occurs to a prospective employee during the examination, the prospective employee is not entitled to workers’ compensation.

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Oct
5
2018

Administrative update (10/1/2018)

New Division One panels announced.

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Oct
3
2018

Cook v. Grebe (9/11/2018)

Arizona Court of Appeals Division One holds that the prevailing party on a quiet title claim may recover attorneys’ fees regardless of the outcome of other claims in the action.

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Oct
3
2018

Ferrara v. 21st Century N. Am. Ins. Co. (9/10/2018)

Ferrara v. 21st Century N. Am. Ins. Co. (9/10/2018): Arizona Court of Appeals Division Two holds that class certification of putative nationwide class action is precluded on grounds of numerosity, commonality, and typicality where evidence establishes no more than 40 class members, and there are substantial differences in the substantive law of the states where putative class members reside.

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Oct
3
2018

Pinal Cty. v. Fuller (8/28/2018)

Arizona Court of Appeals Division Two holds that an attorney’s signature on a notice of claim filed under A.R.S. § 11-622(A) is not sufficient to satisfy the requirement that the notice of claim be executed under penalty of perjury and that a party must strictly comply with the requirements of § 11-622(A).

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Sep
13
2018

Changes to Rule 7 of the Arizona Rules of Civil Appellate Procedure (8/28/2018)

The Arizona Supreme Court amends the rules for supersedeas bonds effective January 1, 2019.

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Sep
13
2018

Baumgartner v. Timmins (8/30/2018)

Arizona Court of Appeals Division One holds that the prohibition on groundless encumbrances in A.R.S. § 33-420 refers only to documents that assert a non-ownership interest in another person’s real property.

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Sep
13
2018

Glazer v. State (8/21/2018)

Arizona Supreme Court holds that the post-judgment interest rate in A.R.S. § 41-622(F) applies to the full judgment amount paid out of the State’s risk management revolving fund, even if a portion is reimbursable under an insurance policy.

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Sep
10
2018

Tapia v. Indus. Comm’n of Ariz. (8/16/2018)

Arizona Court of Appeals Division Two holds that in evaluating a workers’ compensation claim, a self-insured employer is responsible for its own communications failures.

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Sep
10
2018

Stair v. Maricopa Cty. (9/4/2018)

The Arizona Court of Appeals Division One holds that a criminal statute imposes a duty in tort to a particular plaintiff only when the statute is designed to protect the class of persons that includes the plaintiff against the risk of the type of harm that occurred as a result of its violation.

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Sep
4
2018

Chula Vista Homeowners Ass’n v. Irwin (7/27/2018)

Arizona Court of Appeals Division Two holds that attorneys’ fees awarded under A.R.S. § 33-420(A), which authorizes fees for slander-of-title claims, are not part of damages for purposes of calculating a supersedeas bond.

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Sep
4
2018

Deutsche Bank Nat’l Tr. Co. v. Pheasant Grove LLC (8/23/2018)

Arizona Court of Appeals Division One holds that when a claim for reformation is time-barred, a request for declaratory judgment seeking substantively the same relief as the reformation claim is also time-barred.

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Aug
30
2018

Event Announcement (11/30/2018)

Working with the Arizona Court of Appeals
Join appellate judges, clerks and staff attorneys, and practitioners as they provide advice on litigating appeals.

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Aug
29
2018

Twin City Fire Ins. Co. v. Leija (8/2/2018)

Arizona Supreme Court holds that claimant under Arizona Workers’ Compensation Act is not entitled to post-settlement proceeding to determine employer fault to reduce insurance carrier lien on settlement proceeds, despite precedent stating that lien may not exceed employer’s proportionate share of damages where those damages are fixed by verdict.

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Aug
29
2018

Silver v. Pueblo Del Sol Water Co. (8/9/2018)

The Arizona Supreme Court holds that the Arizona Department of Water Resources is not required to consider unquantified federal reserved water rights when it determines whether a development has an adequate 100-year water supply.

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Aug
29
2018

Ryan v. Napier (8/23/2018)

Arizona Supreme Court holds that an officer’s intentional use of force cannot constitute negligence.

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Aug
20
2018

Gallarzo v. Ariz. Dep’t of Econ. Sec. (7/31/2018)

Arizona Court of Appeals Division One holds that Department of Economic Security violated claimants’ due process rights by delaying transmission of applications for appeal to court.

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Aug
20
2018

Fisher v. USAA Cas. Ins. Co. (8/7/2018)

Arizona Court of Appeals Division One holds that a party who has reason to know of an arbitrator’s possible bias but fails to object during arbitration waives the objection.

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Aug
8
2018

Ibarra v. Indus. Comm’n of Ariz. (7/31/2018)

Arizona Court of Appeals Division One holds that for workers’ compensation claims, an assault between employees “arises out of” employment when the employees have no personal contact outside of work.

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Aug
7
2018

Mertola, LLC v. Santos (7/27/2018)

Arizona Supreme Court holds that, under a credit card contract with an option to accelerate the entire debt upon default, the statute of limitations runs from the date of the first uncured missed payment.

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Jul
27
2018

Kopp v. Physician Grp. of Ariz., Inc. (7/9/2018)

Arizona Supreme Court holds that a stipulated dismissal with prejudice of an agent-surgeon does not preclude a claim against the surgeon’s principal for independent negligence because the surgeon’s negligence was not actually litigated.

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Jul
23
2018

Ruffino v. Lokosky (7/12/2018)

The Arizona Court of Appeals Division One holds that a plaintiff must first attempt to provide notice of a suit via modern means of communication, such as by email, by telephone, or through social media, before seeking to serve process by publication under Rule 4.1(l) of the Arizona Rules of Civil Procedure.

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Jul
23
2018

Whitmer v. Hilton Casitas Homeowners Ass’n (7/10/2018)

Arizona Court of Appeals Division One holds that the superior court, and not the Office of Administrative Hearings, has jurisdiction to enforce an Administrative Law Judge’s order by contempt.

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Jul
13
2018

Am. Furniture Warehouse Co. v. Town of Gilbert (7/10/2018)

Arizona Court of Appeals Division One holds that a municipality does not violate the Takings Clause by imposing a generally applicable legislative fee as a condition of obtaining a land development permit.

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Jul
13
2018

Dunn v. FastMed Urgent Care, P.C. (6/19/2018)

Arizona Court of Appeals Division One holds that an employment agreement with a full integration clause, a covenant not to compete, and a forum selection clause does not supersede a different covenant not to compete and forum selection clause contained in a prior sale agreement between the same parties.

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Jul
13
2018

Kopacz v. Banner Health (7/5/2018)

Arizona Court of Appeals Division One confirms that when a medical malpractice claim accrues for statute-of-limitations purposes does not depend on whether the “unsound mind” tolling exception in A.R.S. § 12-502 applies.

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Jul
6
2018

Normandin v. Encanto Adventures LLC (6/26/2018)

Arizona Court of Appeals Division One upholds the constitutionality of Arizona’s recreational user statute, which limits a landowner’s liability to gross negligence.

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Jul
6
2018

Teufel v. Am. Family Ins. Co. (6/25/2018)

Arizona Supreme Court holds that stand-alone tort claims are not excluded by an insurance policy’s contractual liability exclusion even if a contractual relationship exists between the parties.

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Jul
2
2018

Farmer’s Ins. Exch. v. EcoDry Restoration of Ariz., LLC (6/12/2018)

The Arizona Court of Appeals Division One holds that an insured may assign to a third party its post-loss benefits claim under an indemnity insurance policy without insurer consent, despite the presence of an anti-assignment provision in the policy.

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Jun
20
2018

Event Announcement (6/27/2018)

First Mondays Live Podcast at the Bar Convention

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Jun
20
2018

Loncar v. Ducey (5/22/2018)

Arizona Court of Appeals Division One holds that offering benefits to unmarried same-sex couples but not to unmarried opposite-sex couples is not unconstitutional sex discrimination.

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Jun
13
2018

Gonzalez v. Nguyen (4/12/2018)

Arizona Supreme Court holds that a defendant seeking to set aside a default judgment may rely on the existing record to establish that there is a “meritorious defense” under Rule 60.

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Jun
12
2018

Cincinnati Indemnity Co. v. Sw. Line Constructors Joint Apprenticeship & Training Program (5/31/2018)

Arizona Court of Appeals Division One holds that an injury-causing event is a single “occurrence” when an insurance policy defines “occurrence” as an “accident,” even if multiple negligent acts lead up to the injury-causing event.

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Jun
12
2018

Donovan v. Yavapai Cty. Cmty. Coll. Dist. (5/31/2018)

The Arizona Court of Appeals Division One holds that a notice of claim sent to multiple entities may include a single lump-sum settlement demand.

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Jun
11
2018

Brush & Nib Studio, LC v. City of Phoenix (6/7/2018)

Arizona Court of Appeals Division One holds that a city can lawfully prohibit public accommodations from refusing service based on sexual orientation.

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Jun
7
2018

Hanfelder v. GEICO Indemnity Co. (5/22/2018)

Arizona Court of Appeals Division One holds that insurers must use clear policy language to effectively limit coverage to one underinsurance policy.

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May
30
2018

Griffin Foundation v. Ariz. State Ret. Sys. (5/18/2018)

Arizona Court of Appeals Division One holds that when a business agrees to be a co-employer of workers, the workers are not “leased employees” for purposes of the Arizona State Retirement System.

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May
21
2018

Quiroz v. ALCOA Inc. (5/11/2018)

Arizona Supreme Court holds that an employer who uses asbestos owes no duty of care to members of the public harmed by asbestos residue carried on the work clothes of employees, including employees’ family members. The Court also holds that Arizona will not adopt the duty framework set out in the Third Restatement of Torts.

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May
17
2018

Rasor v. Northwest Hospital, LLC (4/25/2018)

Arizona Court of Appeals Division Two holds that a nurse may provide expert witness testimony on causation in a medical malpractice action.

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May
10
2018

State v. Maricopa Cty. Cmty. Coll. Dist. Bd. (5/1/2018)

Arizona Supreme Court holds that DACA students are ineligible for resident tuition.

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May
4
2018

Freeport Minerals Corp. v. Ariz. Corp. Comm’n (4/5/2018)

Arizona Court of Appeals Division Two holds that the Arizona Corporation Commission’s approval of a rate plan that decreased but did not eliminate subsidies among customer classes was not arbitrary, unlawful, or unsupported by substantial evidence.

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May
1
2018

Administrative update (5/1/2018)

New Division One panels announced.

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Apr
17
2018

Bocchino v. Fountain Shadows Homeowners Ass’n (4/3/2018)

Arizona Court of Appeals Division One holds that homeowners association (“HOA”) may not unilaterally assess attorney fees against homeowner where HOA did not seek attorney fees and no attorney fees were assessed by the court.

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Apr
9
2018

Ansley v. Banner Health Network (4/3/2018)

Arizona Court of Appeals Division One holds that a hospital that accepts payment from AHCCCS on behalf of a patient may not impose a lien on the patient’s tort recovery for the balance between what AHCCCS paid and what the hospital customarily charges.

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Apr
9
2018

Glenn H. v. Hoskins (4/3/2018)

The Arizona Court of Appeals Division One holds that a superior court lacks subject matter jurisdiction to grant ex parte oral requests via an emergency hotline where no complaint or petition has been filed and the procedure has not been specifically authorized by statute or rule.

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Apr
5
2018

Armiros v. Rohr (3/8/2018)

Arizona Court of Appeals Division One holds that a contract is formed when a buyer clicks the “Buy It Now” button on eBay.

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Apr
4
2018

Foor v. Smith (3/6/2018)

Arizona Court of Appeals Division One holds that civil forfeiture actions in municipal court proceedings require the disclosure of exculpatory and impeachment evidence beneficial to the defendant’s case when ordinary discovery procedures are not available.

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Apr
4
2018

Broadband Dynamics, LLC v. SatCom Marketing, Inc (3/1/2018)

Arizona Court of Appeals Division One holds that a party who brings suit to enforce a liquidated damages clause of a contract that also creates an open account must comply with the six-year statute of limitations on written contract claims and not the three-year statute of limitations on open accounts.

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Apr
3
2018

Allen v. Town of Prescott Valley (3/13/2018)

Arizona Court of Appeals Division One holds that a sports team’s $270 fee is a “nominal” fee, not an “admission” fee under A.R.S. § 33-1551, which provides property owners with qualified immunity against claims by recreational users who do not pay an admission fee.

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Apr
2
2018

In re $46,523 in U.S. Currency (2/28/2018)

Arizona Court of Appeals Division Two holds that the state must take additional reasonable steps to provide notice of forfeiture proceedings to a claimant of seized property if the state knows that the claimant did not receive notice.

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Mar
15
2018

Saban Rent-A Car LLC v. Ariz. Dep’t of Revenue (3/13/2018)

Arizona Court of Appeals Division One holds that the tax on rental car businesses that funds the Arizona Tourism and Sports Authority is valid under Article IX, § 14 of the Arizona Constitution and the dormant Commerce Clause implied by the United States Constitution.

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Mar
15
2018

Peterson v. Surprise (2/6/2018)

Arizona Court of Appeals Division One holds that an employee who fails to exhaust administrative remedies under the Arizona Civil Rights Act for a claim of wrongful discharge may not sue for retaliatory discharge under Arizona’s Employment Protection Act.

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Mar
5
2018

City of Tucson v. Sensibar (2/5/2018)

Arizona Court of Appeals Division Two holds that Rule 54 language is not necessary to render a superior court decision final and appealable under A.R.S. § 22-375.

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Mar
5
2018

Butler Law Firm, PLC v. Higgins (2/22/2018)

Arizona Supreme Court holds that the specific venue exceptions for corporations do not apply to an LLC.

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Mar
5
2018

Allstate Prop. & Cas. Ins. Co. v. Watts Water Techs., Inc. (2/6/2018)

Arizona Court of Appeals Division One holds that agreement allowing administrator of arbitration agreement to make rules and regulations for arbitration does not authorize the administrator to alter which claims are subject to mandatory arbitration.

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Mar
5
2018

Doe v. Mahoney (2/6/2018)

Arizona Court of Appeals Division One holds that a defamation plaintiff requesting disclosure of an anonymous defendant’s identity must show that it could survive a motion for summary judgment, setting aside those elements which are dependent on the identity of the speaker.

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Feb
22
2018

KnightBrook Ins. Co. v. Payless Car Rental Sys. Inc. (2/8/2018)

Arizona Supreme Court rejects First Restatement of Restitution § 78 and holds that an indemnity plaintiff is entitled to equitable indemnity only when it discharged an actual obligation owed by an indemnity defendant to a third party.

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Feb
15
2018

Andra R Miller Designs LLC v. US Bank NA (2/13/2018)

Arizona Court of Appeals Division One holds that a creditor may revoke its acceleration of debt by including an acceleration revocation clause in a notice of cancellation of trustee’s sale.

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Feb
15
2018

Levine v. Haralson, Miller, Pitt, Feldman & McNally, P.L.C. (1/25/2018)

Arizona Court of Appeals Division One holds that an attorney who does not have a written fee agreement with his client in a contingency fee case may not recover the value of legal services provided in quantum meruit.

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Feb
13
2018

Phoenix Newspapers, Inc. v. Hon. Otis/Allen (1/23/2018)

The Arizona Court of Appeals Division One holds that a court’s prohibition on media publication of the lead prosecutor’s name during a death penalty trial is an impermissible prior restraint in violation of the First Amendment.

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Feb
12
2018

Zwicky v. Premiere Vacation Collection Owners Association (1/23/2018)

Arizona Court of Appeals Division One holds that a timeshare owner has the statutory right to inspect association records in preparation for a lawsuit.

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Feb
12
2018

Hopi Tribe v. Arizona Snowbowl Resort Ltd. P’ship (2/9/2018)

Arizona Court of Appeals Division One holds that allegations of interference with sites of cultural and religious significance are sufficient allegations of “special injury” to establish a tribe’s standing to bring a public nuisance claim.

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Feb
7
2018

Vanoss v. BHP Copper Inc. (1/8/2018)

Arizona Court of Appeals Division Two holds that a mine owner does not owe a non-delegable duty to the employees of an independent contractor.

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Feb
7
2018

Legacy Foundation Action Fund v. Citizens Clean Elections Commission (1/25/2018)

Arizona Supreme Court holds that a party’s failure to timely file an appeal from an agency decision deprives the appellate court of jurisdiction to hear the appeal, even when the agency’s jurisdiction is challenged.

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Jan
25
2018

News (1/24/2018)

Vice Chief Justice Pelander steps down as Vice Chief; Brutinel to become Vice Chief

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Jan
23
2018

Zubia v. Shapiro (1/12/2018)

Arizona Supreme Court holds that a homeowner who fails to obtain an injunction before a trustee’s sale may not bring a claim for damages that depends on the sale’s invalidity.

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Jan
23
2018

Muscat v. Creative Innervisions, LLC (12/26/2017)

Arizona Court of Appeals Division One holds that a person who has been lawfully incarcerated for a criminal conviction has not suffered a legally cognizable injury for purposes of establishing a negligence claim when the alleged harm flows solely from the incarceration.

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Jan
23
2018

Compassionate Care Dispensary v. Arizona Department of Health Services (1/16/2018)

Arizona Court of Appeals Division One holds that a prospective marijuana dispensary is not required to obtain a conditional use permit to participate in a lottery for a medical marijuana dispensary registration certificate.

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Jan
23
2018

Jackson v. Eagle KMC LLC (1/16/2018)

Arizona Court of Appeals Division One holds that after workers’ compensation has been paid, the law of the state of adjudication and compensation governs subrogation, lien, and assignment rights.

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Jan
16
2018

News (1/16/2018)

Governor Ducey appoints Weinzweig to Court of Appeals

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Jan
16
2018

Rodgers v. Huckleberry (12/14/2017)

Arizona Court of Appeals Division Two holds that a county board of supervisors need not comply with competitive bidding procedures when it leases property pursuant to its economic development authority.

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Jan
9
2018

Lunney v. State (12/7/2017)

Arizona Court of Appeals Division One holds that a state agency must search multiple databases if necessary to adequately respond to a public records request.

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Jan
9
2018

Richardson v. All Services Unlimited, Inc. (12/14/2017)

Arizona Court of Appeals Division One holds that amended complaint adding an additional party relates back to original complaint for purposes of Rule 15(c) where additional party knew or should have known that action would have been asserted against it but for mistake.

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Jan
8
2018

Employment Opportunity (1/8/2018)

Arizona Court of Appeals Division One seeks Criminal Staff Attorney


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