John C. Gemmill

This case arose from McBride’s wrongful termination lawsuit against KAI, which KAI sought to dismiss on statute-of-limitations grounds. McBride claimed the parties’ attorneys had orally agreed to toll the limitations period during settlement talks and that equitable estoppel barred KAI from asserting the defense. After a bifurcated jury trial on these preliminary issues, the jury found a tolling agreement existed and made advisory findings supporting estoppel, but the trial court rejected the estoppel findings, granted KAI judgment as a matter of law on the tolling agreement, and conditionally ordered a new trial on that issue. On appeal, the Arizona Court of Appeals reversed the JMOL because conflicting evidence allowed a reasonable jury to find a tolling agreement, affirmed the conditional new-trial ruling as within the trial court’s discretion, and upheld the rejection of equitable estoppel because KAI never acknowledged McBride’s claim. The court remanded for further proceedings, including a new trial on whether a tolling agreement existed.

labor & employmentprocedure

The case arose from Melissa Duncan's personal injury lawsuit against George Pop following a 2007 car accident; Pop died before service of process, prompting Duncan to obtain informal appointment of a special administrator in a separate probate proceeding solely to accept service and tender defense to Pop's insurer, Progressive. The superior court granted Progressive's motion to intervene and dismiss under Rule 12(b)(4), finding the special administrator's appointment invalid under A.R.S. § 14-3614(1) because it was not necessary to protect the estate and no general personal representative was appointed. On appeal, the Arizona Court of Appeals vacated the dismissal and remanded, holding that Progressive's challenge constituted an impermissible collateral attack on the probate court's appointment order. The court reasoned that letters of special administration vested the administrator with authority to accept service until terminated or removed, and any challenge to the appointment's validity must occur in the probate proceeding rather than the tort action.

proceduretorts & liability

Fidelity sued its surety bond agent Bondwriter for breach of contract and negligence after Bondwriter mistakenly issued unauthorized performance and payment bonds for a large construction project, leading to claims against the bonds and damages exceeding $511,000. Following a bench trial, the court ruled for Fidelity on both claims but apportioned damages according to comparative fault, holding Bondwriter only five percent responsible and entering judgment for about $25,500. On appeal, the court held that comparative fault principles do not apply to contract claims, affirmed the breach of contract ruling in Fidelity's favor, vacated the damages and attorneys' fees awards, and remanded for a redetermination of damages without fault apportionment.

business & regulatoryprocedure

The case involved Advanced Property Tax Liens, Inc. foreclosing on a tax lien it acquired for unpaid 2003 property taxes on a parcel owned by the Shermans. After APT obtained a default judgment foreclosing the Shermans' redemption rights, the Shermans moved under Arizona Rule of Civil Procedure 60(c) to set aside the judgment, arguing that APT had not complied with the statutory notice requirement before filing suit. The appellate court reversed the denial of the motion, concluding that APT sent its notice of intent to foreclose to an address the Shermans had sold years earlier and therefore failed to satisfy A.R.S. § 42-18202(A), which rendered the default judgment void for lack of authority to proceed.

propertyproceduretaxes

In this case, Melissa Duncan filed a personal injury lawsuit against George Pop for injuries from a 2007 car accident covered by a Progressive insurance policy, but Pop died before service of process could be completed. Duncan obtained an informal appointment of a special administrator in a related probate proceeding for the limited purpose of accepting service on behalf of the estate, which occurred. Progressive intervened and successfully moved to dismiss the action under Rule 12(b)(4) for insufficiency of process, contending that the special administrator appointment was invalid because Pop's heirs had not been notified. The Court of Appeals vacated the dismissal and remanded, reasoning that the motion constituted an impermissible collateral attack on the probate court's order and letters of administration appointing the special administrator.

proceduretorts & liability

North Peak Construction sued Architecture Plus and its principals for breach of implied warranty and negligence after discovering that the architectural plans for a custom home failed to orient the structure to maximize city views as specified by the client, resulting in extra construction costs. The trial court dismissed the implied warranty claim, concluding that the allegations sounded in tort rather than contract and citing precedents like Barmat. On appeal, the court reversed the dismissal, holding that a valid claim for breach of implied warranty exists against design professionals based on the duty to prepare plans with reasonable skill and in conformance with project specifications, as recognized in Donnelly v. Oberg. The decision distinguishes the implied warranty claim from pure negligence and remands for further proceedings while noting that attorneys' fees under A.R.S. § 12-341.01(A) do not apply because the warranty is implied by law.

business & regulatorytorts & liability

In Wickham v. Hopkins, an eighteen-year-old plaintiff sued homeowners after he was seriously injured by a rock thrown during a fight on the street outside their property, following his attendance at an unsupervised party hosted by their minor daughter while they were away. The trial court granted summary judgment to the Hopkinses on claims of negligence, negligent supervision, premises liability, and vicarious liability, and the appellate court affirmed. The court held that the homeowners owed the plaintiff no duty of care once he left the premises, as premises liability rules apply only to injuries occurring on the property and Arizona common law and public policy do not extend a duty to protect social guests from harm caused by third parties after they depart. The opinion reasoned that merely allowing a gathering does not create an unreasonable risk or impose an obligation to safeguard attendees off-site, and duty is a threshold legal question resolved here in favor of the defendants.

torts & liability

The case involved a wrongful death lawsuit filed by Leticia Carnes after her husband was killed in a collision with a vehicle driven by Stephanie Sebastian, a newspaper delivery person for Phoenix Newspapers, Inc. (PNI). Carnes alleged that PNI was vicariously liable under respondeat superior because Sebastian was acting within the scope of her employment at the time of the accident. The trial court granted summary judgment to PNI, and the Arizona Court of Appeals affirmed, holding that the going and coming rule applied since Sebastian had finished her deliveries and was driving home with no ongoing control by PNI over her activities. The court declined to adopt the employee's own conveyance rule as an exception in this tort context, finding no genuine issues of material fact regarding the lack of employer control during the commute.

torts & liabilitylabor & employment

The case involved the State of Arizona appealing the superior court's dismissal of numerous class 1 misdemeanor charges against Donald Stapley for knowingly filing incomplete or false financial disclosure statements as a local public officer. The Court of Appeals affirmed the dismissal. The core reasoning was that the charges depended on violations of financial disclosure standards purportedly adopted by the Maricopa County Board of Supervisors in 1994, but the Board's 1994 minutes action (rescinding a prior resolution and directing an update to forms for compliance with A.R.S. § 38-541 et seq.) did not validly adopt or incorporate the detailed standards required by A.R.S. § 38-545 to support criminal liability under A.R.S. § 38-544, in contrast to the Board's properly documented 1974 resolution.

criminal lawprocedure

The case involved an injured worker who filed a superior court negligence action against his uninsured employer and also pursued a workers' compensation claim processed by the Special Fund. The Special Fund issued a Notice of Determination accepting the claim, which became final after no timely hearing request. Months later, the Special Fund moved to dismiss the claim, arguing that the worker had elected his remedy by filing the court action and thus waived compensation rights under A.R.S. § 23-1024(B). The ALJ denied the motion, concluding the defense was waived because it was not raised before the Notice became final and res judicata. The court affirmed, reasoning that the election of remedies defense is a non-jurisdictional affirmative defense that must be timely asserted prior to finality of a compensability determination.

labor & employmentprocedure

This case involved a former employee's wrongful termination lawsuit against his employer and related parties, where the employer raised a statute of limitations defense and the employee claimed the parties had orally agreed to toll the limitations period during settlement talks. After a bifurcated jury trial on the tolling issue resulted in a verdict for the employee, the trial court granted the employer's renewed motion for judgment as a matter of law (JMOL) and conditionally granted a new trial. The appellate court reversed the JMOL, holding that sufficient evidence supported the jury's finding of a tolling agreement when viewed in the light most favorable to the employee, and that the trial court had improperly weighed credibility and evidence. The court affirmed the conditional new trial grant, explaining that trial judges have broad discretion in such rulings, akin to acting as a thirteenth juror, and may consider factors like the weight of the evidence without the same constraints as on JMOL motions. The matter was remanded for a new trial on the tolling agreement.

labor & employmentprocedure

This case arose from a dispute between the Maricopa County Attorney and the Board of Supervisors over the Board's authority to hire outside counsel to assess potential conflicts of interest involving the County Attorney and to establish separate litigation departments for handling the county's civil legal matters. The County Attorney sought declaratory and injunctive relief to prevent these actions, while the Board counterclaimed that conflicts rendered the County Attorney unavailable. The court held that the Board may retain independent counsel on its own initiative to evaluate conflicts and pursue related declaratory actions, and that it may reassign specific civil cases from the County Attorney when a conflict exists or there is a lack of harmony as recognized in prior precedent. However, the Board generally lacks authority to appoint separate counsel for ongoing day-to-day legal advice or to broadly divest the County Attorney of civil litigation duties. The matter was remanded for further proceedings to apply these standards.

procedurecriminal law

Rigel Corporation, operating as Krispy Kreme in Arizona, challenged an Arizona Tax Court decision finding it liable for transaction privilege taxes on its retail doughnut sales under A.R.S. § 42-5061(A). The company argued it qualified for exemptions as a retailer of food under A.R.S. § 42-5102(A), primarily because most sales were of a dozen or more doughnuts boxed for takeout. The court affirmed the tax court's ruling that Rigel did not meet the statutory criteria for any exemption, as its operations did not satisfy the definitions for qualified retailers or food sales exempt from the tax, and it rejected Rigel's claim regarding the deliberative process privilege for certain Department of Revenue documents, holding that no such privilege exists under Arizona law.

taxesbusiness & regulatory

The case involved the State Compensation Fund of Arizona seeking to intervene in a personal injury lawsuit filed by an injured worker against a tire manufacturer, to protect its workers' compensation lien. The trial court denied intervention, but the appellate court reversed, holding that a 2007 amendment to Arizona Revised Statutes section 23-1023(C) grants workers' compensation carriers the right to intervene at any time in such actions. The court reasoned that applying the amendment to a pending case was not an impermissible retroactive application because it concerned future proceedings, and even if considered retroactive, the right to intervene is procedural rather than substantive.

labor & employmentproceduretorts & liability

Sempre Limited Partnership challenged the Maricopa County Assessor’s valuation of its real property for the 2008 tax year by filing a direct appeal in Arizona Tax Court, without first pursuing administrative review. The tax court dismissed the case for lack of subject matter jurisdiction, finding that administrative remedies under A.R.S. §§ 42-12153 and 42-16051 must be exhausted first. On appeal, the Arizona Court of Appeals reversed, holding that A.R.S. §§ 42-16201(A) and 42-15104 expressly permit a taxpayer to appeal directly to tax court regardless of whether administrative remedies have been pursued. The court reached this conclusion by interpreting the plain language of the statutes together and harmonizing them to give effect to legislative intent. The case was remanded for further proceedings on the merits of the valuation challenge.

taxespropertyprocedure

The case involved Scott Baker suing Dolphin Beach Rental & Management for breach of contract after performing air conditioning repair work in Mexico, which Dolphin terminated. The trial court dismissed the case because Baker lacked an Arizona contractor's license as required by A.R.S. § 32-1153. The appellate court reversed, holding that the statute does not apply to work performed outside Arizona, so no license was needed for work in Mexico, and Baker could proceed with the lawsuit in Arizona court despite negotiations occurring in Arizona and the parties being Arizona residents.

business & regulatoryprocedure

In this case, Dr. Anthony Yeung sued Dr. Zoran Marie for defamation and false light invasion of privacy based on critical statements about Yeung's medical treatment of a patient that Marie included in an independent medical examination report prepared for a private contractual arbitration proceeding involving the patient's insurance claim. The trial court granted summary judgment to Marie, and the Arizona Court of Appeals affirmed. The court held that statements made in connection with the arbitration are protected by the absolute privilege that applies to participants in judicial proceedings. The core reasoning was that the privilege promotes the important social interest of full disclosure of information to decision-makers, and the same rationale and procedural safeguards apply to arbitrations conducted in lieu of court proceedings as to traditional litigation.

proceduretorts & liability

This case involved plaintiffs suing Jiffy Lube for negligence after a car accident, claiming that during an oil change the service provider should have inspected the tires for dangerous tread wear and warned them. The court affirmed summary judgment in favor of Jiffy Lube, holding that the company did not owe a legal duty to perform such an inspection or provide warnings. The reasoning was that Jiffy Lube only agreed to perform the oil change service, which included checking tire pressure but not examining tread wear, and it did not undertake any obligation regarding the tires' condition beyond that limited scope.

torts & liability

This case involved a dispute over whether CMG and its owners, the Lineses, were unjustly enriched by a $25,000 payment that Brian Loiselle made into CMG's bank account. Loiselle believed he was making a short-term loan to CMG based on fabricated emails from a third party, Verderose, who owed money to CMG; in reality, CMG applied the funds to reduce Verderose's debt and later loaned him additional money. The trial court granted summary judgment to the Loiselles on their unjust enrichment claim, awarding $25,000 and holding CMG and the Lineses jointly and severally liable. On appeal, the court affirmed summary judgment for $4,000 in restitution because CMG retained that net amount after its additional loan to Verderose, but it vacated the judgment as to the remaining $21,000 and the Lineses' personal liability due to unresolved factual issues about change of position and alter ego status, remanding for further proceedings.

business & regulatoryproceduretorts & liability

This case concerned whether an employer and its workers' compensation carrier were entitled to reimbursement from Arizona's Special Fund Division for benefits paid to an employee with a preexisting non-industrial impairment (diabetes) who later suffered a compensable industrial injury resulting in permanent impairments to his arm and leg. The Industrial Commission awarded reimbursement, and the Court of Appeals affirmed that decision. The court held that the employee's additional impairments from the single industrial accident were not of the type listed in A.R.S. § 23-1044(B) because multiple scheduled injuries occurring together are treated as unscheduled under established precedent. This interpretation allowed reimbursement under A.R.S. § 23-1065(C), consistent with the statute's purpose of encouraging employment of workers with disabilities.

labor & employment