AZAPP Blog - 2020

New Division One panels announced (10/6/2020)

The Arizona Court of Appeals Division One released the panel assignments for January 1, 2021 through June 30, 2021.

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Clayton v. Kenworthy (9/15/2020)

Arizona Court of Appeals Division One holds that a court cannot prohibit the recording of a physical or mental examination under Arizona Rule of Civil Procedure 35.

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Wood v. Nw. Hosp., LLC (8/28/2020)

Arizona Court of Appeals Division Two confirms that the voluntary payment doctrine does not require a payee to have had a claim of right to the payment in question.

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JTF Aviation Holdings Inc. v. CliftonLarsonAllen LLP (9/18/2020)

Arizona Supreme Court holds that contractual time limits on lawsuits do not apply to a third party just because the third party is “closely related” to a contracting party.

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Pro Bono Representation Program Update (8/6/2020)

The Chief Judge of Division One of the Arizona Court of Appeals has expanded the Court of Appeals Pro Bono Representation Program to allow self-represented parties to request that the Court evaluate their appeals to determine whether to place it in the program.

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Eleven Applicants for Vacancy on Arizona Court of Appeals (9/1/2020)

The Commission on Appellate Court Appointments seeks public input on the eleven candidates being considered to fill the vacancy on Division One of the Arizona Court of Appeals created by the retirement of Judge Kenton D. Jones.

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Lohr v. Bolick (9/8/2020)

Arizona Supreme Court holds that, though political candidates usually must list their actual residence address in their nomination paper and petitions, a candidate substantially complied by listing a nearby private mailbox address instead.

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Perdue v. La Rue (9/3/2020)

The Court of Appeals Division One holds that the sham affidavit doctrine bars use of a declaration that contradicts testimony taken in separate litigation.

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Free v. Indus. Comm’n of Ariz. (7/23/2020)

Arizona Court of Appeals Division One holds that an employee’s average monthly wage does not include an unused per diem food allowance.

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Helvetica Servicing, Inc. v. Pasquan (8/3/2020)

Arizona Supreme Court holds that the question of whether a loan is a “construction loan” subject to anti-deficiency protection is a fact question based on a multi-factor test.

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Heritage at Carefree LLC v. Ariz. Dep’t of Health Servs. (7/16/2020)

Arizona Court of Appeals Division One holds that an assisted living facility may not hold a Power of Attorney for a resident or allow an employee or family member to do so.

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Standard Constr. Co. v. State (9/3/2020)

Arizona Court of Appeals Division One holds that when a contractor for a public entity timely exercises its contractual option to require non-binding mediation with a public entity after exhausting its administrative remedies, the time to file a notice of claim is tolled under A.R.S. § 12-821.01(C) until the mediation fails.

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State v. City of Phoenix (8/3/2020)

Arizona Supreme Court holds that the City of Phoenix’s airport trip fees for ride-sharing vehicles do not violate Article 9, Section 25 of the Arizona Constitution, which restricts certain taxes and transaction-based fees on services.

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CK Family Irrevocable Tr. No. 1 v. My Home Grp. Real Estate LLC (7/28/2020)

Arizona Court of Appeals Division One holds that a listing agreement signed by a real estate agent is valid and enforceable even if the designated broker for the agent’s company fails to review and initial the agreement, as required by statute.

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In Re Real Prop. Known as 3567 E. Alvord Rd. (7/16/2020)

Arizona Court of Appeals Division Two holds that a property used in the facilitation of drug sales is subject to forfeiture.

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Powers Reinforcing Fabricators, L.L.C. v. Contes (8/25/2020)

Arizona Court of Appeals Division One holds that a dismissal of an action consolidated with other actions is not always immediately appealable.

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Saguaro Healing LLC v. State (8/20/2020)

Arizona Supreme Court holds that the Arizona Department of Health Services cannot deny a dispensary registration certificate to the only applicant from a county without a dispensary.

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Johnson Utils., L.L.C. v. Ariz. Corp. Comm’n (7/31/2020)

Arizona Supreme Court holds that the Arizona Corporation Commission has constitutional authority to appoint an interim manager of a public service corporation for health and safety purposes.

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McDaniel v. Banes (7/23/2020)

Arizona Court of Appeals Division One holds that the application of the four-year statute of limitations to an amended foreign judgment runs from when it is amended, not when it was originally issued.

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Paulden Indus. LLC v. Big Chino Materials LLC (7/14/2020)

Arizona Court of Appeals Division One holds that when a deed reserves an estate in all minerals for the grantor, and separately allows the grantor to remove sand, stone, rock, and clay as necessary to remove minerals, then sand, stone, rock, and clay are not minerals under the deed.

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Secure Ventures, LLC v. Johnson (5/5/2020)

Arizona Court of Appeals Division One holds that jurisdiction for forcible detainers brought by an owner who acquired title through a trustee’s sale rests solely with superior courts, and not justice courts.

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Ariz. Biltmore Hotel Villas Condos. Ass'n v. Conlon Grp. Ariz., LLC (6/23/2020)

Arizona Court of Appeals Division One defines the limits of the procedural safe harbor in the Arizona Nonprofit Corporation Act (the “Nonprofit Act”) and holds that if a director discloses facts about one transaction, the safe harbor for that transaction does not extend to a later, distinct transaction even if the later transaction has a related subject matter or could loosely be considered a continuation of the earlier transaction.

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Ibarra v. Gastelum (7/23/2020)

Court of Appeals Division One holds that the statutory duty to keep an apartment in a fit and habitable condition does not justify a negligence per se jury instruction.

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Piccioli v. City of Phoenix and AFSCME, AFL-CIO, Local 2384 v. City of Phoenix (7/10/2020)

Arizona Supreme Court confirms that a public retirement plan does not violate common-law or constitutional pension protections by ending a longstanding practice that the plan never authorized in the first place.

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Banner Univ. Med. Ctr. Tucson Campus, LLC v. Gordon (5/29/2020)

Arizona Court of Appeals Division Two holds that plaintiffs are not barred from suing private employers under vicarious liability theories for acts of employees subject to the notice of claim statute, A.R.S. § 12-821.01.

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Torres v. JAI Dining Servs. (Phx.), Inc. (7/16/2020)

Arizona Court of Appeals Division One holds that a dram shop is not liable for injuries that occur after an overserved patron goes home, sleeps, then decides to drive.

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Dinsmoor v. City of Phoenix (6/30/2020)

Arizona Court of Appeals Division One holds that a school district has a duty to protect a student who was shot off campus based on preexisting school-student relationship.

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Cook v. Ryan (6/18/2020)

Arizona Court of Appeals Division One holds that prison disciplinary proceeding comported with due process where prisoner had advanced written notice of disciplinary charges and had opportunity to present written witness statements.

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Heaphy v. Metcalf (6/18/2020)

Arizona Court of Appeals Division Two holds that a plaintiff does not waive privilege as to medical records just because her life expectancy may be relevant to her damages theory.

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Wales v. Ariz. Corp. Comm’n (6/11/2020)

Arizona Court of Appeals Division One holds that the Arizona Corporation Commission’s hearing process does not violate due process.

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Lagerman v. Ariz. State Ret. Sys. (5/14/2020)

Arizona Supreme Court holds that, under the State’s retirement system, an employee is not entitled to receive benefits until after he or she submits a retirement application.

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Event Announcement: Appellate Oral Arguments By Remote Video (6/19/2020)

The State Bar’s Appellate Practice Section is hosting a panel discussion on appellate oral arguments by remote video.

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Humphrey v. State (4/30/2020)

Arizona Court of Appeals Division One held that tort claims were barred by failure to comply with the notice of claim statute, A.R.S. § 12-821.01.

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Enter. Life Ins. Co. v. Ariz. Dep't of Ins. (3/26/2020)

Arizona Court of Appeals Division One holds that A.R.S. § 23-1380 does not authorize the Department of Insurance to require a health insurer to discontinue all coverage when the insurer ceases to offer some coverage.

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The State of the Netherlands v. MD Helicopters Inc. (3/19/2020)

Arizona Court of Appeals Division One holds that judgments secured in Dutch courts could be domesticated under Arizona’s version of the Uniform Foreign-Country Money Judgments Recognition Act, A.R.S. §§ 12-3251 to -3254.

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Varela v. FCA US, LLC (5/5/2020)

Arizona Court of Appeals Division One holds that a tort claim based on a carmaker’s failure to install automatic emergency braking technology is not preempted by the federal government’s decision not to mandate that technology.

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Laveen Meadows Homeowners Ass’n v. Mejia (5/5/2020)

Arizona Court of Appeals Division One holds that the phrase “may be foreclosed” in A.R.S. § 33-1807 refers to the commencement of a civil action seeking foreclosure rather than the issuance of a judgment of foreclosure and, therefore, partial payment of a lien does not entitle one to relief under Arizona Rule of Civil Procedure 60(b).

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New Division One panels announced (4/27/2020)

The Arizona Court of Appeals Division One released the panel assignments for July 1, 2020 through December 31, 2020.

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Morrissey v. Garner (4/21/2020)

Arizona Supreme Court holds that the number of signatures necessary to trigger a recall election is based on how many people voted at the most recent election for the office.

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Goldman v. Sahl (3/5/2020)

Arizona Court of Appeals Division One held that (1) a communication that occurs preliminary to a judicial proceeding may be privileged against defamation claims when the defendant was “seriously considering” commencing litigation or had a good-faith basis to believe someone else was; and (2) Supreme Court Rule 48(l) does not bar abuse of judicial process claims involving a professional-discipline proceeding but the mere submission of a bar complaint that is dismissed without further action is not use of a judicial process for purposes of such a claim.

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Governor Ducey appoints Judge Cynthia Bailey to the Court of Appeals (4/24/2020)

Governor Ducey appointed Judge Cynthia Bailey to the Arizona Court of Appeals, Division One.

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Chung v. Choulet (1/28/2020)

Arizona Court of Appeals Division One holds that courts may only grant a delayed appeal upon a showing of due diligence or extraordinary circumstances.

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Maricopa Cty. v. Rana (2/25/2020)

Arizona Court of Appeals Division One holds that a functional standard applies to the zoning requirement that a group home operate as a “family-like environment,” and also that providing on-site group and individual counseling is a permissible part of the “care, training, or support” allowed in the zoning ordinance.

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Sholem v. Langevin (3/30/2020)

Arizona Supreme Court held that (1) under Arizona Rule of Civil Procedure 4(i), if a plaintiff shows good cause for failing to serve a defendant within ninety days, a court is required to extend the time for service; (2) Rule 4(i) also allows a court, in its discretion, to extend the period for service without a plaintiff showing good cause; and (3) that if the ninety-day period for service has expired, a plaintiff seeking an extension under Rule 4(i) need not show that the delay in service or the delay in requesting an extension was due to excusable neglect, as is required under Arizona Rule of Civil Procedure 6(b)(1)(B).

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Houser v. City of Phoenix (4/9/2020)

Arizona Court of Appeals Division One holds that if a Board of Adjustment authorizes requests for reconsideration and a party seeks reconsideration, the thirty-day clock under A.R.S. § 9-462.06(K) to file a special action challenging a Board of Adjustment’s decisions runs from when the Board acts on the request for reconsideration.

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Arizona Supreme Court to Livestream Remote Oral Arguments (4/9/2020)

The Arizona Supreme Court announced that it will livestream oral arguments being conducted remotely on April 14 and April 16, 2020.

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Brown v. Dembow (2/25/2020)

Arizona Court of Appeals Division One holds that after a Class 6 felony is reduced to a misdemeanor upon completion of probation, the offense cannot be used as impeachment evidence under Rule 609.

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Iverson v. Nava (2/27/2020)

The Arizona Court of Appeals Division One clarifies the scope of courts’ jurisdiction over counterclaims in detainer actions.

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Ansley v. Banner Health Network (3/9/2020)

Arizona Supreme Court holds that a hospital that accepts payment from a state Medicaid agency for a patient may not pursue additional payment by imposing a lien on money owed to the patient by a third party.

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Scott v. Kemp (3/5/2020)

Arizona Court of Appeals Division One holds that non-resident officers, managers, and partners of a nationwide network of skilled-nursing and other long-term care facilities are subject to personal jurisdiction in Arizona.

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Ten Applicants Recommended for Vacancy on Arizona Court of Appeals (3/26/2020)

The Commission on Appellate Court Appointments has recommended ten nominees to Governor Doug Ducey to fill the vacancy on Division One of the Arizona Court of Appeals created by the resignation of Judge Diane Johnsen.

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Division One of the Arizona Court of Appeals Issues New Extension Policy (3/26/2020)

Effective April 1, 2020, the Arizona Court of Appeals, Division One, has enacted a new policy requiring a showing of good cause for all extensions of time, including a first request.

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Specialty Companies Grp. LLC v. Meritage Homes of Ariz. Inc. (2/25/2020)

Arizona Court of Appeals Division One holds that a claim to pierce the corporate veil may be raised in an action on a judgment and that such an action is governed by the limitation period for actions to enforce a judgment.

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Fields v. Elected Officials Ret. Plan (2/6/2020)

Arizona Court of Appeals Division One holds that a party who agrees to pay its attorney only those fees awarded by a court does not become ineligible for a fee award under A.R.S. § 12-341.01.

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Hwal’Bay Ba: J Enters., Inc. v. Jantzen (2/25/2020)

Arizona Supreme Court announces a six-factor test to determine whether a tribal economic entity is an “arm of the tribe” for sovereign immunity purposes.

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France v. Indus. Comm’n of Ariz. (2/18/2020)

Court of Appeals Division One held that, for workers’ compensation purposes, the phrase “unexpected, unusual or extraordinary stress related to employment” means work-related stress that is sufficiently significant and noteworthy to differentiate it from non-compensable, general stress caused by the work regimen.

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Simmons v. Indus. Comm’n of Ariz. (2/7/2020)

Court of Appeals Division Two holds that an administrative law judge erred by applying incorrect “earning capacity disability” legal standard and by failing to determine who had the applicable burden of proof.

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Am. Civil Liberties Union of Ariz. v. Ariz. Dep’t of Child Safety (1/14/2020)

Arizona Court of Appeals Division One holds that a government’s internal confusion is not a sufficient reason to explain a delay in the production of documents in response to a public records request and that a requesting party does not substantially prevail unless the records provided substantially provide the information sought by the underlying requests.

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Seven Applicants for Vacancy on Arizona Court of Appeals (2/7/2020)

The Commission on Appellate Court Appointments seeks public input on the seven candidates being considered to fill the vacancy on Division One of the Arizona Court of Appeals created by the resignation of Judge Diane Johnsen.

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Rizzio v. Surpass Senior Living LLC (1/30/2020)

Arizona Court of Appeals Division One holds that an arbitration agreement requiring one party to bear all costs and fees regardless of who prevails is unconscionable, but the offending provision may be severable.

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Terrell v. Torres (1/23/2020)

The Arizona Supreme Court holds that a couple’s election on an in vitro fertilization consent agreement requires that their cryogenically preserved embryos be donated rather than used by one partner without the express consent of the other.

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Bottomlee v. State (1/28/2020)

Arizona Court of Appeals Division One holds that a state daycare inspector created a special relationship with infants at daycare by issuing an allegedly grossly negligent corrective action plan that lead to an infant’s suffocation.

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AU Enters., Inc. v. Edwards (1/21/2020)

Arizona Court of Appeals Division Two holds that an eviction order is not a final appealable order unless it resolves attorneys’ fees.

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Sun City Home Owners Ass’n v. Ariz. Corp. Comm’n (1/23/2020)

Arizona Court of Appeals Division One upholds constitutionality of Arizona Corporation Commission’s consolidation of rates for five EPCOR Water Arizona, Inc. wastewater districts.

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Williams v. King (1/23/2020)

Arizona Court of Appeals Division One holds that there is no right to a jury trial for a statutory claim that did not exist when the Arizona Constitution was adopted.

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Applications Being Accepted for Vacancy on Court of Appeals, Division One (1/8/2020)

The Commission on Appellate Court Appointments is currently accepting applications for the vacancy on Division One of the Court of Appeals created by the resignation of Judge Diane M. Johnsen.

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Tucson Estates Prop. Owners Ass’n v. Estate of Ross E. Jenkins (11/12/2019)

Arizona Court of Appeals Division Two holds that a trial court may reduce the fees and costs requested in an uncontested fee application when the contract provides for the award of reasonable attorneys’ fees.

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Martin v. Staheli (12/19/2019)

The Court of Appeals Division One held that an injured party’s death does not extinguish a familial consortium claim of a surviving family member.

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Fleming v. Tanner (12/10/2019)

Court of Appeals Division One holds that the statutory interest rate in A.R.S. § 44-1201(A) does not apply to an oral loan that did not anticipate interest.

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Ctr. for Auto Safety v. Goodyear Tire & Rubber Co. (11/26/2019)

Arizona Court of Appeals Division One holds that a court may unseal or expose trade secrets to the public only in extraordinary circumstances.

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