AZAPP Blog - 2019

Rodgers v. Huckelberry (10/21/2019)

Arizona Court of Appeals Division Two holds that although taxpayers may have standing to challenge a government’s procurement of services, the challenge becomes moot once the services are rendered and the government pays for them.

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Apache Produce Imps., LLC v. Malena Produce, Inc. (9/10/2019)

Court of Appeals Division Two holds that grant of a stay during pendency of preliminary injunction application is an order refusing to grant an injunction subject to appellate jurisdiction under A.R.S. § 12-2101(A)(5)(b), and a superior court abuses its discretion by granting a stay without considering the factors entitling a party to a preliminary injunction.

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Kellin v. Lynch (9/10/2019)

Court of Appeals Division One holds that in some circumstances, a supersedeas bond may include potential attorneys’ fees anticipated on appeal.

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Holcomb v. Ariz. Dep’t of Real Estate (9/17/2019)

Arizona Court of Appeals Division One affirms the revocation of a real estate broker and brokerage’s licenses for failing to maintain and produce important sales transaction records.

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Swain v. Bixby Vill. Golf Course Inc. (9/19/2019)

Arizona Court of Appeals Division One holds that a restrictive covenant may impose an affirmative use requirement on the owner of the burdened property.

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Brush & Nib Studio, LC, v. City of Phoenix (9/16/2019)

Arizona Supreme Court holds that local anti-discrimination public accommodations ordinance cannot be applied to require art studio to create custom wedding invitations celebrating same-sex wedding ceremony in violation of its sincerely held religious belief under article 2, section 6 of the Arizona Constitution and the Free Exercise of Religion Act, A.R.S. § 41-1493.01.

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Governor Ducey appoints Judge David Gass to the Court of Appeals (9/13/2019)

Governor Ducey appointed Maricopa County Superior Court Judge David Gass to the Arizona Court of Appeals, Division One.

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Valdez v. Delgado (9/10/2019)

Arizona Court of Appeals Division One holds that an oral agreement to sell property is enforceable, despite the statutory requirement to put it in writing, if a party acts in a way that makes sense only if the agreement exists.

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Four Candidates Recommended for Vacancy on Arizona Court of Appeals (9/12/2019)

The Commission on Appellate Court Appointments sent four candidates to the Governor for consideration to fill the vacancy on Division One of the Arizona Court of Appeals created by the passing of Judge Jon W. Thompson.

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Court of Appeals, Division One Now Livestreaming Oral Arguments (8/23/2019)

Division One of the Court of Appeals began livestreaming its oral arguments on September 3, 2019.

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Aguirre v. Indus. Comm’n of Ariz. (8/15/2019)

Arizona Supreme Court holds that a claimant before the Industrial Commission does not waive a challenge to the legal sufficiency of an administrative law judge’s findings by failing to specifically raise that issue when requesting administrative review.

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Helvetica Servicing, Inc. v. Pasquan (8/15/2019)

Arizona Court of Appeals Division One holds that the part of a loan used to expand and renovate a home is used for home improvement, not construction, and is therefore not entitled to anti-deficiency protection.

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Governor Ducey appoints Bill Montgomery to the Arizona Supreme Court (9/4/2019)

Governor Ducey appointed Maricopa County Attorney Bill Montgomery to fill a vacancy on the Arizona Supreme Court.

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State v. Ariz. Bd. of Regents (8/20/2019)

In an unpublished opinion, the Arizona Court of Appeals Division One affirmed the Attorney General’s limited authority to initiate civil actions but questioned the narrow interpretation given to the word “prosecute” in Ariz. State Land Dep’t v. McFate, 87 Ariz. 139 (1960).

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Goldberger v. State Farm Fire & Cas. Co. (8/13/2019)

Arizona Court of Appeals Division One holds that property damage caused by feral cats does not fall within the domestic-animal exclusion in an insurance policy.

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Gordon v. Arizona Registrar of Contractors (7/23/2019)

Arizona Court of Appeals Division One holds that a breach of a home warranty contract does not entitle a homeowner to recover from the Residential Contractors’ Recovery Fund.

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Ariz. Chapter Associated Gen. Contractors of Am. v. City of Phoenix (7/24/2019)

Arizona Supreme Court holds that petition circulators for local ballot initiatives may be paid on a per-signature basis.

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Reyes v. Town of Gilbert (7/25/2019)

Arizona Court of Appeals Division One holds that Rule 26.1 does not require disclosure of documents not relevant to any party’s legal theories or defenses.

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Dashi v. Nissan N. Am., Inc. (6/13/2019)

Court of Appeals Division One holds Arizona state law tort claims for manufacture of vehicles without automatic breaking technology are impliedly preempted by National Highway Traffic Safety Administration’s refusal to set formal standards for automatic braking technology.

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JTF Aviation Holdings Inc. v. CliftonLarsonAllen LLP (7/2/2019)

Arizona Court of Appeals Division One holds that under appropriate circumstances, a non-signatory transaction participant may benefit from and be bound by contract terms when the non-signatory is “closely related” to a signatory or the dispute.

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Dignity Health v. Farmers Ins. Co. (6/11/2019)

Arizona Court of Appeals Division One holds that medical payments coverage in a car insurance policy is subject to health care provider liens because it is not health insurance.

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Judge Jon Thompson (7/22/2019)

Arizona Court of Appeals Judge Jon Thompson passed away on July 22, 2019.

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Normandin v. Encanto Adventures, LLC (5/17/2019)

Arizona Supreme Court holds entity that does not control access to recreational land cannot be a manager entitled to immunity under A.R.S. § 33-1551(A).

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In re Sky Harbor Hotel Props. (6/25/2019)

Arizona Supreme Court holds that the manager of a limited liability company owes a common law fiduciary duty to the company, as does a member acting as an agent of the company, but that the company’s operating agreement may eliminate these duties.

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Murro v. Ariz. Dep’t of Health Servs. (6/11/2019)

Arizona Court of Appeals Division One holds that mere “solicitation” to violate a controlled substance law can disqualify a person from being a marijuana dispensary agent.

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Heritage Vill. II Homeowners Ass’n v. Weinberg (5/21/2019)

Arizona Court of Appeals Division One holds that (1) the timeliness of a motion to intervene is measured from when the movant has notice that its interests are not being adequately represented, and (2) the ability to file another lawsuit does not, by itself, preclude intervention.

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Monroe v. Arizona Acreage LLC (5/16/2019)

Court of Appeals Division One holds that: (1) a six-year statute of limitations governs judicial foreclosure; (2) the statute of limitations for enforcement of guaranty, absent agreement to the contrary, is identical to enforcement of the underlying note; and (3) a class action notice with an opportunity to opt out satisfied a deed of trust requirement that majority of lenders initiate default action.

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Applicants for Arizona Court of Appeals, Division One, Vacancy Announced (5/31/2019)

Eleven individuals applied to fill the vacancy on Division One of the Arizona Court of Appeals created by the appointment of Justice Beene to the Arizona Supreme Court.

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Applicants for Arizona Supreme Court Vacancy Announced (5/31/2019)

Eleven individuals applied to fill the vacancy on the Arizona Supreme Court created by Chief Justice Bales’s retirement.

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State v. Mahoney ex rel. Cty. of Maricopa (5/16/2019)

Arizona Court of Appeals Division One holds that a notice of nonparty at fault need not always identify the nonparty’s name or location.

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Shepherd v. Costco Wholesale Corp. (4/30/2019)

Arizona Court of Appeals Division One holds that HIPAA does not preempt a state-law claim for negligent disclosure of healthcare information, but federal requirements may inform the standard of care for such claims.

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Court of Appeals Division One announces new court leadership (5/16/2019)

The Arizona Court of Appeals, Division One, announces the election of new court leadership effective July 1, 2019.

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Dabrowski v. Bartlett (5/7/2019)

Arizona Court of Appeals Division One holds that express easements terminated through merger are not revived through subsequent severance, that the appropriate way to analyze common ownership when two owners are technically different is whether there is effective unified control over the land, and that a private condemnation may be appropriate when a previously reasonable alternative is no longer adequate.

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Morales v. Archibald (4/25/2019)

Arizona Supreme Court holds that challenge to recall petition may be brought only to challenge number of signatures certified and that in a recall petition, the date-and-time-stamped copy of the petition application must accompany the petition signature sheets.

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New Division One panels announced (5/6/2019)

The Arizona Court of Appeals Division One released the panel assignments for September 1, 2019 through December 31, 2019.

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Applications Being Accepted for Current Judicial Vacancies (5/1/2019)

The Commission on Appellate Court Appointments is currently accepting applications for vacancies on the Supreme Court and Division One of the Court of Appeals.

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Meno’s Constr. L.L.C. v. Indus. Comm’n of Ariz. (5/9/2019)

Arizona Court of Appeals Division One holds that in workers’ compensation claims, multiple contractors and subcontractors may share joint liability as direct or statutory employers.

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Ariz. Elec. Power Coop., Inc. v. DJL 2007 LLC (5/9/2019)

Arizona Court of Appeals Division One holds that a private corporation with statutory eminent domain authority only effectuates a taking after the jury determines damages and the corporation pays full compensation based on a valuation date of when payment is made.

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Governor Ducey appoints Judge Beene to the Arizona Supreme Court (4/26/2019)

Governor Ducey appointed Judge James P. Beene to fill a vacancy on the Arizona Supreme Court.

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Supreme Court Report (4/22/2019)

The Supreme Court grants review in two cases during its April conference.

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Duff v. Lee (3/29/2019)

Arizona Court of Appeals Division Two holds that Fast Trial and Alternative Resolution Program is valid even though it conflicts with A.R.S. § 12-133.

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Paradigm DKD Grp., LLC v. Pima Cty. Assessor (3/29/2019)

Arizona Court of Appeals Division Two holds that in an action to compel a response to a public records request, a party may “substantially prevail” for the purposes of attorneys’ fees and costs only to the extent an action is necessary to accomplish the purpose of the original records request.

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Piccioli v. City of Phoenix (4/2/2019)

Arizona Court of Appeals Division One holds that a public pension plan does not violate common-law or constitutional pension protections by terminating a longstanding practice that the terms of the plan never permitted in the first place.

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Ironwood Commons Cmty. Homeowners Ass’n, Inc. v. Randall (4/4/2019)

Arizona Court of Appeals Division One holds that an affidavit of judgment renewal may be filed in the superior court of the county in which the judgment was docketed, even if that is not the county in which the judgment originated.

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Bekelian v. JP Morgan Chase Bank NA (3/19/2019)

Arizona Court of Appeals Division One holds that A.R.S. § 33-812(J) does not impose a 180-day deadline for applying for excess proceeds from trustee’s sale such that a court may not issue an order releasing excess proceeds if it has reason to know of a senior claim to those proceeds.

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Event Announcement: Appellate Pro Bono Opportunities (4/11/2019)

The State Bar’s Appellate Practice Section is hosting a panel discussion on appellate pro bono opportunities, featuring representatives from the U.S. Court of Appeals for the Ninth Circuit, the Arizona Court of Appeals, and the Arizona Attorneys for Criminal Justice.

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Gibson v. Theut (3/12/2019)

Arizona Court of Appeals Division One holds: (1) neither guardian ad litem nor appointed attorney to minor are entitled to absolute judicial immunity; (2) minors have standing to sue for legal malpractice; and (3) government entities may be liable for negligent hiring in appointment of an incompetent legal representative.

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Terrell v. Torres (3/14/2019)

Adopting a “contract approach” for evaluating agreements regarding disposition of cryogenically preserved embryos, the Arizona Court of Appeals Division One rules that an ex-wife can implant embryos over objection of her ex-husband.

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City of Surprise v. Ariz. Corp. Comm’n (3/28/2019)

Arizona Supreme Court holds that the Arizona Corporation Commission lacks authority to regulate municipal condemnations, even when a municipality acquires the assets of a regulated public service corporation through a negotiated or “friendly” condemnation.

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Supreme Court Report (3/5/2019)

The Supreme Court granted review in one case during its March conference.

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Pitts v. Indus. Comm’n of Arizona (3/21/2019)

Arizona Court of Appeals Division One holds that a worker’s compensation claim for PTSD is timely if the claim is filed within one year of diagnosis and there is no evidence that a diagnosis could have been made earlier.

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Harle v. Williams (3/14/2019)

Arizona Court of Appeals Division One holds that a contractual agreement barring a party from executing on the judgment tolls the enforcement period.

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Ansley v. Banner Health Network (3/12/2019)

Arizona Court of Appeals Division One holds that injunctive and declaratory relief are generally available for a claim that federal law preempts the enforcement of a state-law created right.

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Apodaca v. Keeling (3/19/2019)

Arizona Court of Appeals Division One holds that for purposes of Rule 77(h) sanctions in an arbitration appeal, courts must compare whether the total judgment on the trial de novo is 23 percent more favorable than the total arbitration award.

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JH2K I LLC v. Ariz. Dep’t of Health Servs. (3/19/2019)

Arizona Court of Appeals Division One holds that a medical marijuana dispensary must be at least 500 feet from a school’s property line.

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Lagerman v. Ariz. State Retirement Sys. (3/7/2019)

Arizona Court of Appeals Division One holds that a member of the State’s retirement system may not elect a retirement date earlier than the date of the member’s retirement application.

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Brittner v. Lanzilotta (3/12/2019)

Arizona Court of Appeals Division One holds that a court-appointed therapist who provides advice and recommendations to the court is protected by judicial immunity.

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Johnson Utilities LLC v. Ariz. Corp. Comm’n (3/7/2019)

Arizona Court of Appeals Division One holds that Arizona Corporation Commission’s broad ratemaking power under the Arizona Constitution and statutorily delegated power to determine a just remedy for inadequate public utility equipment, facilities, or services allow the Commission to impose an interim manager upon a utility under appropriate circumstances.

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Chief Justice Bales to retire from the Arizona Supreme Court (3/5/2019)

Chief Justice Bales announced that he will retire from the Arizona Supreme Court effective July 31, 2019.

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SK Builders, Inc. v. Smith (1/29/2019)

Arizona Court of Appeals Division Two holds that the Prompt Pay Act’s progress payment provisions do not apply to work performed or materials supplied outside of a 30-day billing cycle.

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Saban Rent-A Car LLC v. Ariz. Dep’t of Revenue (2/25/2019)

Arizona Supreme Court holds that the tax on rental car businesses that funds the Arizona Tourism and Sports Authority does not violate the federal dormant Commerce Clause or Article IX, § 14 of the Arizona Constitution.

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Court of Appeals Division One 2018 Annual Report (3/4/2019)

The Arizona Court of Appeals Division One issued its annual report for 2018.

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New Division One panels announced (3/1/2019)

The Arizona Court of Appeals Division One released the panel assignments for May 1, 2019 through August 31, 2019.

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Meyer v. State (2/5/2019)

Arizona Court of Appeals holds that the Legislature violated the Voter Protection Act when it adopted a law impliedly repealing an initiative measure adopted by Arizona voters.

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Five Nominees Sent to Governor for Justice Pelander’s Vacancy (3/1/2019)

The Commission on Appellate Court Appointments has sent five nominees to Governor Ducey to fill Justice Pelander’s seat on the Arizona Supreme Court.

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Span v. Maricopa Cty. Treasurer (2/19/2019)

Arizona Court of Appeals Division One holds that an unjust enrichment claim is not available when the defendant forwards money received from the plaintiff to a third party under color of law and equitable considerations favor the defendant.

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Supreme Court Report (2/5/2019)

The Supreme Court granted review in three cases during its February conference.

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Event Announcement: The State of the Courts (2/14/2019)

The State Bar’s Appellate Practice Section is hosting a panel discussion on the state of the courts in Arizona featuring the Chief Justice of the Supreme Court and the Chief Judges of both divisions of the Court of Appeals.

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Leach v. Reagan (12/6/2018)

Arizona Supreme Court holds that a person may not sue to invalidate a ballot initiative based on an allegation that the contents of a political action committee’s “statement of organization” failed to comply with A.R.S. § 16-906, and a person may sue based on the validity of any petition signatures, not just those included in the random sample used by the Secretary of State to determine the total number of valid signatures.

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Rohan Mgmt., Inc. v. Jantzen (1/22/2019)

Arizona Court of Appeals Division One holds that in an action for involuntary judicial dissolution of a limited liability company, A.R.S. § 29-785(A) does not limit venue to the county in which the LLC’s known place of business is located.

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Danial v. Indus. Comm’n of Ariz. (1/15/2019)

Arizona Court of Appeals Division One holds that an airport taxicab driver is not an employee of the cab company for workers’ compensation purposes when the airport exercises the most control over the driver’s work.

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Applicants for Arizona Supreme Court Vacancy Announced (1/25/2019)

Thirteen individuals applied to fill the vacancy on the Arizona Supreme Court created by Justice Pelander’s retirement.

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Eleven Applicants to Be Interviewed for Justice Pelander’s Seat (2/6/2019)

On March 1, 2019, the Commission on Appellate Court Appointments will interview eleven applicants for the Arizona Supreme Court vacancy created by Justice Pelander’s retirement.

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Cleckner v. Ariz. Dep’t of Health Servs. (1/10/2019)

Arizona Court of Appeals Division One holds that an agency’s rules limiting the scope of midwifery practice were within the agency’s statutory authority.

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Supreme Court Report (1/22/2019)

The Supreme Court granted review in three cases during its January conference.

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Pro Bono Representation Program Update (1/8/2019)

The Chief Judge of Division One of the Arizona Court of Appeals has appointed two new Pro Bono Attorney Coordinators to recruit and coordinate private volunteer attorneys for the Court of Appeals Pro Bono Program.

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Jackson v. Eagle KMC L.L.C. (1/2/2019)

Arizona Supreme Court holds that after workers’ compensation has been paid under one state’s laws, that state’s laws also govern assignment of rights.

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Pac. W. Bank v. Castleton (12/27/2018)

Arizona Court of Appeals Division One holds that judgment creditor may not attach a judgment lien to homestead property, but instead may execute its judgment only by way of forced sale of the property under A.R.S. § 33-1105.

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Aguirre v. Indus. Comm’n of Ariz. (12/4/2018)

Arizona Court of Appeals Division One holds that Administrative Law Judge’s blanket adoption of insurer’s post-hearing memorandum fails to resolve evidentiary and legal issues regarding worker’s compensation claim and sets aside Industrial Commission Award for failure to make findings with sufficient specificity to permit appellate review.

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Conklin v. Medtronic, Inc. (12/18/2018)

Arizona Supreme Court holds that federal law impliedly preempts a state law failure-to-warn claim predicated on alleged noncompliance with federal reporting requirements.

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Hopi Tribe v. Ariz. Snowbowl Resort Ltd. P’ship (11/29/2018)

Arizona Supreme Court holds that environmental damage to public land with religious, cultural, or emotional significance to the plaintiff is not a special injury for public nuisance purposes.

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Stanwitz v. Reagan (11/27/2018)

Arizona Supreme Court holds that A.R.S. § 19-118(C), which requires petition circulators to appear for trial when subpoenaed, is constitutional both facially and as applied.

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Spooner v. City of Phoenix (11/27/2018)

Court of Appeals Division One holds that qualified immunity shields a law enforcement officer from civil liability for simple negligence arising from investigative police work performed within the scope of the officer’s public duties.

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Upcoming Event (1/10/2019)

The Appellate Practice Section of the State Bar is holding a seminar on amicus briefs on appeal.

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