AZAPP Blog - 2021

Purdy v. Metcalf (9/24/2021)

Arizona Court of Appeals Division Two holds that, in a vehicular wrongful death or injury case, the fact that the defendant was using a cell phone while driving at the time of the accident may support a claim for punitive damages if, along with evidence of cell phone use, there is other evidence the driver was consciously pursuing a course of conduct knowing that it creates a substantial risk of significant harm to others.

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Prieve v. Flying Diamond Airpark, LLC (10/13/2021)

The Court of Appeals Division Two holds that deciding whether to clear all vegetation over a large area of land falls outside the “normal day to day management” of a planned community.

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Sun City Home Owners Ass’n v. Ariz. Corp. Comm’n (10/21/2021)

Arizona Supreme Court holds decisions of the Arizona Corporation Commission are not entitled to “extreme deference.”

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Benedict v. Total Transit, Inc. (9/9/2021)

Arizona Court of Appeals Division One holds that an ex-spouse has authority to sue on behalf of minor surviving children.

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Walker v. Lipin (10/6/2021)

Arizona Court of Appeals Division Two holds that the deadline for renewal of judgments previously tolled are not shortened by recent amendments lengthening the statute of limitations for such actions.

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Takieh v. O’Meara (8/10/2021)

Arizona Court of Appeals Division One holds that calling a doctor an “idiot” for missing an “obvious” diagnosis does not support a defamation claim, and that Arizona’s statute protecting the confidentiality of hospital peer-review proceedings does not require production of a privilege log.

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ACLU v. Ariz. Dep. of Child Safety (8/25/2021)

Arizona Supreme Court holds that a party may recover attorneys’ fees in a records request suit under A.R.S. § 39-121.02 when it has “substantially prevailed” by being more successful than not in obtaining records or other relief that was contested by the opposing party before litigation.

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New Division One panels announced (10/6/2021)

The Arizona Court of Appeals Division One released the panel assignments for January 1, 2022 through June 30, 2022.

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Governor Ducey appoints Angela Paton to Division One, Court of Appeals (10/8/2021)

Governor Ducey appointed Angela Paton to Division One of the Arizona Court of Appeals.

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Matthews v. Indus. Comm’n of Ariz. (7/9/2021)

Arizona Court of Appeals Division Two holds that A.R.S. § 23-1043.01(B) is not an unconstitutional limitation of compensable injuries when it provides that workers’ mental injuries must arise from an unexpected, unusual, or extraordinary situation to be compensable.

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Welch v. Cochise Cnty. Bd. of Supervisors (9/2/2021)

Arizona Supreme Court holds that Arizona’s open meeting and conflict-of-interest statutes confer standing on claimants with an interest in preserving transparency and accountability.

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Major v. Coleman (5/5/2021)

Arizona Court of Appeals Division Two holds that superior courts have discretion to retain ancillary jurisdiction to enforce a settlement agreement as part of a stipulation of dismissal.

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S. Ariz. Home Builders Ass’n. v. Town of Marana (8/16/2021)

Arizona Court of Appeals Division Two holds that a municipal development fee on future development does not violate A.R.S. § 9-463.05 simply because the project happens to serve existing development as well.

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Coleman v. Amon (8/17/2021)

Arizona Court of Appeals, Division One, holds that statute prohibiting use of medical provider’s apologetic statement as evidence is constitutional.

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Redgrave v. Ducey (8/19/2021)

The Arizona Supreme Court holds that Arizona has not consented to damages liability for a state agency’s violation of the minimum wage or overtime provisions of the federal Fair Labor Standards Act.

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CVS Pharmacy, Inc. v. Bostwick (9/1/2021)

Arizona Supreme Court holds the exclusive right for a hospital to recover from a third-party tortfeasor is through Arizona’s medical lien statutes and that a pharmacy does not owe a duty to a hospital for direct economic harm caused by the opioid crisis.

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Dinsmoor v. City of Phoenix (8/6/2021)

Arizona Supreme Court holds that, in some circumstances, a school does not owe its students a duty of care after the students leave the school’s custody and control.

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Rizzio v. Surpass Senior Living LLC (8/17/2021)

Arizona Supreme Court holds that an individual’s fee arrangement with their attorney can be considered in determining her ability to financially bear the costs of arbitration.

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Canas v. Bay Ent., LLC (8/26/2021)

Arizona Court of Appeals, Division One, reaffirms common law right of publicity.

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Zambrano v. M & RC II LLC (7/29/2021)

Arizona Court of Appeals, Division One holds that buyers cannot waive the implied warranty of workmanship and habitability, even by contract.

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Maclean v. Newgioco Grp., Inc. (3/16/2021)

Arizona Court of Appeals Division One holds that Rule 55 requires plaintiffs seeking default judgment to serve known attorneys of defendants.

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Starr v. Ariz. Bd. of Fingerprinting (8/5/2021)

Arizona Court of Appeals, Division One, holds that Arizona Board of Fingerprinting has no authority to review classifications of criminal convictions made by Department of Public Safety.

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Turner v. Indus. Comm’n of Ariz. (7/15/2021)

Arizona Court of Appeals holds a workplace accident caused by an employee’s weakened physical condition does not create a viable workers’ compensation claim.

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Sampson v. Surgery Ctr. of Peoria, LLC (7/30/2021)

Arizona Supreme Court holds that a jury in a medical malpractice case may not be left to infer causation without the guidance of expert testimony where the cause of death is disputed and not obvious to an ordinary person.

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Clayton v. West (6/24/2021)

Arizona Supreme Court holds that A.R.S. § 16-341(A) applies to independent presidential electors, but not to independent presidential candidates.

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Specialty Companies Grp., LLC v. Meritage Homes of Ariz., Inc. (8/5/2021)

Arizona Supreme Court holds that an alter-ego claim against a judgment-debtor’s parent corporation is not an action on a judgment and is bound by the limitation period applicable to the cause of action underlying the judgment.

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BMO Harris Bank N.A. v. Espiau (7/13/2021)

Arizona Court of Appeals, Division One, holds that probate non-claim statute does not begin to run until creditor receives notice that strictly complies with A.R.S. 14-3801.

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Governor Ducey appoints Kathryn King to the Supreme Court (7/8/2021)

Governor Ducey appointed Kathryn King to the Arizona Supreme Court.

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Ten Applicants for Vacancy on Arizona Court of Appeals, Division One (7/7/2021)

The Commission on Appellate Court Appointments seeks public input on the ten candidates being considered to fill the vacancy on the Arizona Court of Appeals, Division One, created by the retirement of Judge Lawrence F. Winthrop.

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Mesnard v. Campagnolo (6/30/2021)

Arizona Supreme Court holds that absolute legislative immunity covers an investigative report but not a news release.

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Bridgeman v. Certa (6/15/2021)

Arizona Court of Appeals holds that the superior court’s final decision in a special action challenging an interlocutory ruling by a lower court in a separate proceeding is an appealable order.

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Heaphy v. Willow Canyon Healthcare, Inc. (5/18/2021)

Arizona Court of Appeals Division Two holds that an arbitration agreement signed by an agent acting under the terms of a health care power of attorney does not bind the principal if the arbitration agreement was not within the scope of the agent’s authority to make health care decisions for the principal.

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Seven Nominees for Vacancy on Arizona Supreme Court (5/18/2021)

The Commission on Appellate Court Appointments sent seven nominees to Governor Ducey for consideration to fill the vacancy on the Arizona Supreme Court created by the retirement of Justice Andrew W. Gould.

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World Egg Bank, Inc. v. Nesco Inv., LLC (5/18/2021)

Arizona Court of Appeals holds that where a minority shareholder dissents from the sale of a corporation, the fair value of those shares are determined at the date of the actual sale of the corporate assets.

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Clem v. Pinal Cnty. (5/10/2021)

Arizona Court of Appeals Division Two holds that a grant of qualified immunity to an individual government employee can be issue preclusive in a subsequent negligence action.

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State ex rel. Brnovich v. City of Tucson (4/14/2021)

Arizona Supreme Court holds that cities, not the state, may decide whether municipal elections are held on the same cycle as statewide elections.

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State v. Frye (4/6/2021)

Arizona Court of Appeal Division One holds that a claimant may seek relief from a civil forfeiture judgment by way of Rule of Civil Procedure 60.

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New Division One panels announced (4/5/2021)

The Arizona Court of Appeals Division One released the panel assignments for July 1, 2021 through December 31, 2021.

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Eleven Applicants for Vacancy on Arizona Supreme Court (4/9/2021)

The Commission on Appellate Court Appointments seeks public input on the eleven candidates being considered to fill the vacancy on the Arizona Supreme Court created by the retirement of Justice Andrew W. Gould.

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Town of Florence v. Florence Copper, Inc. (3/23/2021)

Arizona Court of Appeals Division One holds that town may not eliminate vested rights in a contractual development agreement by rezoning the property, when the contract provides that the developer’s assent must be obtained to modify the contractual development agreement.

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Leach v. Hobbs (4/5/2021)

Arizona Supreme Court holds that a petition circulator who de-registers is still subject to subpoena requirements applicable to petition circulators under A.R.S. § 19-118(E).

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Angulo-Murrieta v. City of Yuma (3/30/2021)

Arizona Court of Appeals, Division One, holds that property used to facilitate misdemeanor theft is subject to civil forfeiture.

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Sunland Dairy LLC v. Milky Way Dairy, LLC (3/18/2021)

Arizona Court of Appeals holds that A.R.S. §§ 3-1304 and 3-1307, which provide for treble damages for the conversion of animals, provide private rights of action in addition to criminal liability.

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Sycamore Hills Estates Homeowners Ass’n., Inc. v. Zablotny (1/20/2021)

Arizona Court of Appeals Division Two holds that the superior court has jurisdiction to enter a stipulated judgment that includes relief not requested in the underlying complaint.

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Webster Bank NV v. Mutka (2/9/2021)

Arizona Court of Appeals Division One holds that statute of limitations begins to run when a payment matures under a home equity consumer revolving loan agreement.

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Shepherd v. Costco Wholesale Corp. (3/8/2021)

Arizona Supreme Court holds that a plaintiff is not required to allege bad faith or rebut the good faith presumption in their complaint when asserting a claim of negligent disclosure of medical information and that HIPAA may inform the standard of care in a negligence claim.

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Fid. Nat’l Title Ins. Co. v. Osborn III Partners LLC (3/9/2021)

Arizona Court of Appeals Division One holds Morris agreements apply to title insurance policies.

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Recent Changes at the Arizona Supreme Court Clerk’s Office (3/16/2021)

The Arizona Supreme Court appointed Tracie K. Lindeman Clerk of the Arizona Supreme Court and issued an updated administrative order on the Clerk’s duties and responsibilities.

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Simms v. Ariz. Racing Comm’n (2/23/2021)

Arizona Court of Appeals Division One holds that an interested third party in administrative proceedings has standing to appeal a racing licensing decision as a “person aggrieved.”

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Justice Gould to retire from the Arizona Supreme Court (3/12/2021)

Justice Gould announced that he will retire from the Arizona Supreme Court effective April 1, 2021.

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Roberts v. State (3/2/2021)

Arizona Court of Appeals holds that the Fair Labor Standards Act does not preempt claims for overtime compensation under A.R.S. § 23-392.

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Bridges v. Nationstar Mortg., LLC (1/14/2021)

Arizona Court of Appeals Division One holds that absent an express statement of acceleration in the notice of a trustee’s sale or other evidence of an intent to accelerate, recording a notice of trustee’s sale, by itself, does not accelerate a debt.

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Burns v. Ariz. Pub. Serv. Co. (3/4/2021)

Arizona Court of Appeals holds that a member of the Corporation Commission lacks authority to individually enforce an investigatory subpoena in a ratemaking case over the opposition of the majority of the Commission.

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Rogers v. Mroz (12/8/2020)

Arizona Court of Appeals Division One holds that a political attack ad that states a person “specializes in underage girls and advertises on website linked to sex trafficking” cannot be taken by a reasonable listener as an accusation of a precise and verifiable undisclosed fact that the person was complicit in sexual misconduct with underage girls and was complicit in sex trafficking, and cannot be the subject of a defamation action consistent with the First Amendment.

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France v. Indus. Comm’n of Ariz. (3/2/2021)

Arizona Supreme Court determines that deputy sheriff’s PTSD resulting from a violent encounter while conducting a welfare check is a compensable workers’ compensation claim.

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Apollo Educ. Grp., Inc. v. Nat'l Union Fire Ins. Co., of Pittsburgh, PA (2/17/2021)

Arizona Supreme Court holds that under an insurance policy without a contractual duty to defend, the objective reasonableness of the insurer’s decision to withhold consent is assessed from the perspective of the insurer, not the insured.

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Cavallo v. Phoenix Health Plans (2/23/2021)

Arizona Court of Appeals Division One holds that (1) an insurer can raise a limited contract-based defense to show the elements of insurance bad faith are not met under the circumstances and (2) an erroneous instruction about mitigation damages will not automatically merit reversal when the jury does not reach damages because the defendant is not liable.

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McKenna v. Soto (2/17/2021)

Arizona Supreme Court holds that election petition signatures with incomplete date or address information are valid if they substantially comply with the statutory requirements.

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Remote Appellate Oral Arguments (3/1/2021)

Arizona Attorney article by Eric M. Fraser and Krissa Lanham.

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Schires v. Carlat (2/8/2021)

Arizona Supreme Court holds that the sufficient consideration prong under the Arizona Constitution’s Gift Clause is an objective inquiry, requiring a governmental entity to receive a fair market value return that is proportional to the consideration it paid, without deference to the entity’s assessment of value.

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Dabush v. Seacret Direct LLC (1/8/2021)

Arizona Supreme Court holds that a sublessee does not owe a duty to maintain a common area of a property in a reasonably safe condition when the sublessee makes repairs to the property unrelated to the injury that subsequently occurred.

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Maricopa Cnty v. Rovey (12/29/2020)

Arizona Court of Appeals Division One adopts “easement corollary” to rule of strips and gores for interpretation of real estate conveyances.

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Montano v. Luff (12/21/2020)

Arizona Court of Appeals Division Two holds that no inherent conflict exists between A.R.S. § 12-1176’s right to a jury trial in forcible entry and detainer actions and Ariz. R. Proc. Eviction Act. 11(d)’s allowance for bench trials in cases lacking factual disputes.

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Event Announcement: The Annual State of Courts Program (2/7/2021)

The Appellate Practice Section Educational Program will inform you about the present condition of the Arizona courts and their forthcoming plans.

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Thomas Hudson publishes article on structuring appellate briefs. (1/20/2021)

Article from Journal of Appellate Practice and Process

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State of the Netherlands v. MD Helicopters Inc. (12/30/2020)

Arizona Supreme Court holds that a foreign country’s case law can satisfy Arizona’s reciprocity requirement for the recognition of foreign judgments.

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Governor Ducey appoints Brian Y. Furuya to the Court of Appeals (12/23/2020)

Governor Ducey appointed Brian Y. Furuya to the Arizona Court of Appeals, Division One.

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Event Announcement: A Conversation with Paul Clement (1/8/2021)

The State Bar's Appellate Practice Section is hosting a panel discussion on arguments before the Supreme Court of the United States during the COVID Pandemic by remote video.

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Welch v. Cochise Cnty. Bd. of Supervisors (10/9/2020)

Arizona Court of Appeals Division Two holds that a taxpayer has standing to challenge the violation of open-meeting laws and conflict of interest laws resulting in an illegal appointment and, through the illegal appointment, an illegal expenditure of municipal funds.

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McDaniel v. Payson Healthcare Mgmt., Inc. (10/20/2020)

Arizona Court of Appeals Division Two requires new trial in medical malpractice case, due to trial court errors involving experts.

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