Peter B. Swann

In Alosi v. Hewitt, Joseph Alosi sued Audrey Fuller and related companies after Fuller negligently collided with his motorcycle while driving a company-owned car on personal and business errands; Alosi later sought to add William Hewitt (Fuller's romantic partner and owner of the companies) as a defendant under Arizona's family purpose doctrine and an agency/respondeat superior theory. The trial court denied leave to amend on the family purpose claim, allowed the agency claim to proceed, and later granted Hewitt summary judgment on that claim. The Court of Appeals affirmed, holding that Hewitt and Fuller did not qualify as a "family" under the doctrine because they were co-equal romantic partners with shared vehicle access rather than a head-of-household arrangement, and that no vicarious liability arose from their personal relationship or her employment even though she was running errands at Hewitt's request. The court therefore upheld judgment in Hewitt's favor.

family lawtorts & liability

This case arose from a judicial foreclosure on a Paradise Valley home owned by Kelly and Michael Pasquan as community property. After Helvetica Servicing obtained a foreclosure judgment and bought the property at a sheriff’s sale for $400,000, Michael requested a fair-market-value determination under A.R.S. § 12-1566(C) to reduce any deficiency; Kelly later attempted to assign her statutory redemption rights to Ronald Gold so he could redeem the property. The central issue was whether one judgment debtor’s FMV application eliminated the co-debtor’s separate right to redeem. The Arizona Court of Appeals held that A.R.S. § 12-1566(C) extinguishes all redemption rights once any debtor seeks an FMV determination, because the statute substitutes a court-determined fair market value for the sale price when calculating deficiency credits for all jointly and severally liable parties. The court therefore affirmed the dismissal of Gold’s quiet-title action, noting that the redemption right exists to protect against an unfairly low sale price rather than to permit a debtor to retain or reacquire the home.

propertyprocedurefamily law

The case concerned whether Sedona's 2008 Short-Term Vacation Rental Enforcement Ordinance, which made short-term rentals of residential property a misdemeanor, triggered compensation obligations under Arizona's Private Property Rights Protection Act (A.R.S. §§ 12-1131 to 12-1138) by reducing property owners' preexisting rights to use and sell their land. The trial court granted summary judgment to the City, finding the Ordinance exempt from the Act because its stated purpose was to protect public health and safety. The Court of Appeals reversed, holding that a government entity claiming the Act's public-health-and-safety exemption must present evidence that this was the law's principal purpose rather than relying on its declared intent alone, and that the Act applies to any post-2006 expansion of preexisting land-use restrictions. The court remanded for an evidentiary hearing on the Ordinance's actual primary purpose and on whether the owner's option agreements had already been prohibited under the 1995 land-development code.

propertybusiness & regulatorycriminal law

In Higginbotham v. AN Motors of Scottsdale, the plaintiff sued a parts-delivery driver’s employer and staffing agency for negligence and wrongful death after the driver struck the plaintiff and his wife with his vehicle, killing the wife and injuring the plaintiff. The superior court granted summary judgment to the defendants, holding that the driver was not acting within the course and scope of his employment at the time of the accident because he was off-duty during a gap between scheduled delivery runs. The Arizona Court of Appeals vacated the judgment and remanded the case, ruling that whether an employee remains within the scope of employment during an authorized refreshment break is generally a question of fact. The court reasoned that Arizona precedent recognizes such breaks as potentially incidental to employment when they occur within authorized time and space limits and the employer retains some right of control, and that genuine factual disputes existed here about the driver’s status during the interval before his next required check-in.

labor & employmenttorts & liability

In BNSF Railway Co. v. Buttrick, BNSF challenged a trial court's protective order issued in Roy Crain's Federal Employers’ Liability Act lawsuit, which barred the railroad from requesting medical notices that Crain was obligated to provide under the Collective Bargaining Agreement (CBA) between his union and BNSF, and from disciplining him for noncompliance via a scheduled CBA hearing. The Arizona Court of Appeals vacated the order, holding that the trial court exceeded its jurisdiction. The court explained that the CBA proceeding—conducted under the Railway Labor Act to address potential employee misconduct—was an independent, parallel process outside the state court's authority, and the trial court's power to regulate discovery in the FELA case did not permit it to interfere with BNSF's separate contractual rights to obtain work-related medical information. The opinion emphasized that each forum could manage its own proceedings without encroaching on the other.

labor & employmentproceduretorts & liability

The case involved Burlingame Industries appealing a personal property tax valuation directly to the tax court after a miscommunication with the Maricopa County Assessor prevented a timely administrative appeal to a board of equalization. The tax court dismissed the appeal for lack of jurisdiction, holding that exhaustion of administrative remedies was required. The appeals court reversed, ruling that A.R.S. §§ 42-15104(2) and 42-16201 create a direct statutory right to appeal personal property valuations to the tax court as an alternative to administrative review. The core reasoning was that the plain language of these statutes permits judicial appeal regardless of whether administrative remedies have been exhausted, consistent with prior precedent applying the same provisions to real property, and that related procedural statutes do not eliminate this direct option.

taxespropertyprocedure

This case concerned whether four Arizona statutes regulating the performance of abortions violated the equal protection or privacy clauses of the Arizona Constitution. Planned Parenthood Arizona challenged provisions in A.R.S. §§ 36-2152 through -2155, including requirements for in-person physician counseling and notarized parental consent, and obtained a preliminary injunction from the trial court. The appellate court reversed the injunction, holding that the statutes would satisfy federal constitutional standards and that the Arizona Constitution affords no greater protection for abortion rights than the federal constitution with respect to these regulations. The court also partially reversed the trial court's denial of intervention motions by the Speaker of the House and other parties.

abortion

This case involved Linda Figueroa appealing the denial of unemployment benefits by the Arizona Department of Economic Security, which determined she had voluntarily quit her job as a child-care center director without good cause following a dispute over a performance bonus. The court reversed the Appeals Board's decision and remanded the case, concluding that Figueroa was terminated by her employer rather than having quit. The reasoning centered on the employer's failure to meet its burden of proving a voluntary quit, as conflicting testimony showed that the employer changed the locks and treated her as terminated before any clear resignation occurred, and her statements were conditional and ambiguous.

labor & employmentprocedure

In this guardianship proceeding involving Bradford Lund, attorneys issued a records subpoena to a court-appointed expert witness who had complained about its burden, prompting the trial court to sua sponte quash the subpoena and order a show-cause hearing on sanctions. At the hearing, the court found the subpoena abusive and harassing, then held an attorney in contempt and ordered him confined after he declined to answer questions that would breach attorney-client privilege under a common interest agreement, resulting in the attorney being handcuffed in court. Several attorneys subject to the sanctions order sought special action relief. The appellate court accepted jurisdiction and granted relief, holding that the trial court's actions constituted a clear abuse of discretion because attorneys asserting a colorable privilege claim are entitled to due process before sanctions like confinement are imposed. The court vacated the contempt finding and all sanctions.

procedurefamily law

The case involved homeowner John Hogan's lawsuit against Long Beach Mortgage Company, Washington Mutual Bank, and JPMorgan Chase Bank to halt a non-judicial trustee's sale of his property after default on a loan secured by a deed of trust. Hogan sought an accounting, declaratory relief, damages, and an injunction, primarily arguing that the banks failed to prove they held or were entitled to enforce the promissory note under Arizona's Uniform Commercial Code. The trial court dismissed the amended complaint, and the Arizona Court of Appeals affirmed. The court held that claims based on note ownership or holder status do not apply to deeds of trust, which are governed by separate statutes allowing foreclosure without such proof, and that other claims were either improperly asserted or lacked merit under Arizona law.

propertyprocedure

The case involved Kailash P. Bhatt, who was convicted of defrauding secured creditors under Arizona statutes after he advertised and attempted to sell upgraded cabinets, countertops, and appliances from a residential property subject to a mortgage held by PHH Mortgage Corporation while facing foreclosure. Bhatt appealed, arguing insufficient evidence of a completed sale or intent to hinder the security interest, legal impossibility, and that the relevant statutes were unconstitutionally vague. The court affirmed the conviction and sentence, finding that the jury had sufficient evidence of Bhatt's knowing actions and intent to reduce the property's value, that the transaction qualified as a sale under the statute, and that the definitions of security interest in A.R.S. §§ 13-2201 and 13-2204 were clear and not vague. The court rejected claims that Title 47, chapter 9 lacked a required definition, noting that the criminal statutes provided their own consistent definition of security interest.

criminal lawproperty

In State v. Gamez, the defendant appealed his convictions for sexual conduct with a minor, unlawful imprisonment, resisting arrest, and aggravated assault, arguing that the trial court erred by precluding him from asserting an affirmative defense that he believed the 13-year-old victim was 18 years old. The Arizona Court of Appeals affirmed the convictions, holding that A.R.S. § 13-1405 requires the state to prove the victim's age as an element of the offense but does not require proof of the defendant's knowledge of that age, and that the statute is constitutional on its face and as applied. The court reasoned that the legislature had not provided a mistake-of-age defense for victims under 15, unlike for older minors under related provisions, and that the state's burden to establish the victim's actual age satisfied due process requirements.

criminal law

Canyon Del Rio Investors sued the City of Flagstaff for declaratory judgment and damages arising from a zoning dispute, claiming that city ordinances and the 1991 Land Development Code prevented feasible development of property purchased in 2002 and conflicted with an earlier state land use plan. The superior court dismissed the claims as barred by the statute of limitations. The court of appeals reversed, holding that damage claims do not accrue and the limitations period does not begin until the plaintiff exhausts available administrative remedies such as obtaining a final decision from the Development Review Board and pursuing appeals. It further held that declaratory judgment claims may be filed earlier but likewise are not subject to a running limitations period until exhaustion occurs, and that while 42 U.S.C. § 1983 claims do not require exhaustion, an as-applied zoning challenge still needs a final government decision.

propertyprocedurecivil rights

This case involved Nome Edonna's lawsuit against the Heckmans for the wrongful death of his biological father, Edward Hintz, who died in a car accident. Edonna had been adopted by his stepfather as a child, with Edward's consent. The superior court allowed the claim to proceed, finding Edonna had standing as a child under the wrongful death statute. On appeal, the court reversed, holding that under A.R.S. § 8-117(B), the adoption fully severed the legal parent-child relationship, depriving Edonna of the status of "child" required to bring a wrongful death action under A.R.S. § 12-612. The decision was based on statutory interpretation prioritizing the broad language severing all rights and obligations from the prior parent-child relationship.

family lawtorts & liability

In Cosper v. Rea, a personal injury plaintiff appealed an adverse compulsory arbitration award in a car accident case and later disclosed an expert witness and report during the post-appeal discovery period. The trial court struck the disclosure, ruling that Rule 77(g) required all witnesses to be identified at the time of the appeal and that good cause was needed for any supplements. The Court of Appeals accepted special action jurisdiction to interpret the rule and held that Rule 77(g)(3) expressly permits supplemental disclosures under the ordinary discovery rules for 80 days after the appeal filing, without a good-cause showing, so long as the disclosure is seasonable and in good faith and any prejudice can be cured by lesser means than preclusion. The court therefore granted relief and vacated the order striking the expert.

proceduretorts & liability

The case concerned whether Arizona courts could assert personal jurisdiction over three Missouri wives in a business dispute lawsuit brought by Arizona plaintiffs against their Missouri-resident husbands for alleged misrepresentations in a commercial agreement. The trial court had denied the wives' motions to dismiss, finding jurisdiction based on the husbands' contacts and Missouri's tenancy-by-the-entirety property rules. The Court of Appeals accepted special action review and held that jurisdiction was lacking because the wives had no personal contacts with Arizona and Missouri law does not recognize a marital community or create vicarious liability or agency from the marital relationship alone. The court distinguished its prior precedent from community-property states and concluded that unilateral spousal activity cannot satisfy due process minimum contacts requirements.

procedurefamily law

In this construction defect class action, homeowners sued a developer for breaches of contract and implied warranties related to defects in over 400 homes, leading the developer and its direct insurers to enter a Morris agreement stipulating to an $8.475 million judgment, paying only $375,000, and assigning claims against subcontractors and their non-participating insurers (NPIs) to the plaintiffs. The NPIs intervened and moved for summary judgment, arguing the agreement breached the developer's duty of cooperation under the insurance policies by failing to provide required notice and improperly shifting liability. The court held that Morris agreements are invalid when they allow an insured and primary insurer to avoid paying policy limits and pass excess liability to other insurers, affirming summary judgment for the NPIs on that basis. It also vacated the award of attorney fees against the homeowners, finding it an abuse of discretion in these circumstances.

proceduretorts & liabilitybusiness & regulatory

The case involved a dispute among shareholders and directors of Corvallas Development Corporation over the development of Arizona real estate, specifically whether defendants misappropriated a corporate opportunity by developing the Merrill Ranch property without the plaintiff. Plaintiff brought claims for breach of fiduciary duty, fraudulent conveyance, and accounting. The trial court awarded defendants attorneys' fees under A.R.S. § 12-341.01(A) after granting summary judgment in their favor. The Court of Appeals vacated the fee award, holding that the claims did not arise out of a contract because the duties at issue were imposed by law rather than by any express or implied promise between the parties.

business & regulatoryproceduretorts & liability

This case involved Rodolfo Chavez's appeal of his conviction for Possession of Dangerous Drugs for Sale after police found methamphetamine, packaging materials, cash, and two cell phones during a traffic stop. The trial court overruled Chavez's hearsay objection and allowed an officer to read six incoming text messages requesting drug purchases. The appellate court affirmed the conviction and sentence, holding that the messages were not hearsay because they were offered only as circumstantial evidence that Chavez had drugs available for sale, not to prove the truth of the senders' assertions. The court noted that the messages supported an inference that multiple people believed Chavez was selling drugs.

criminal lawprocedure

In Keefer v. Keefer, the case concerned whether excess SSDI benefits paid to a child due to the father's disability could offset the father's court-ordered share of the child's unreimbursed medical expenses. The family court had ruled that such excess benefits could not be applied to the father's 70% obligation for those expenses beyond satisfying the monthly child support amount. The Arizona Court of Appeals reversed, holding that unreimbursed medical expenses qualify as part of the total child support obligation under state statute and guidelines, and that excess SSDI payments from the disabled parent may be credited against that parent's proportional share of current unreimbursed medical costs.

family law