Ann A. Scott Timmer

The case concerned whether a trial court could hold BMO Harris Bank in civil contempt of a reinstated temporary restraining order that barred trustee's sales of four Sedona properties pending appeal, after BMO canceled original sale notices, issued new ones, and stated its intent to proceed with sales. The appellate court accepted special-action jurisdiction and vacated the contempt finding and sanctions, ruling that the bank had not violated the order because it never conducted a sale and that an expressed future intention to violate an order does not constitute contempt. The court explained that contempt requires clear and convincing proof of disobedience of a specific and definite order, that intentions may change before any violation occurs, and that Arizona and other courts reject any doctrine of anticipatory contempt.

procedureproperty

This case is a wrongful death action brought by Vicki Pounders after her husband Dudley developed mesothelioma allegedly from asbestos exposure while working as a welder at a New Mexico power plant between 1969 and 1983. The trial court ruled that New Mexico substantive law applied under choice-of-law principles and granted summary judgment to defendants under New Mexico’s ten-year statute of repose for claims arising from improvements to real property. The Arizona Court of Appeals affirmed, holding that the place of injury was New Mexico (where exposure occurred) rather than Arizona (where the disease manifested), that New Mexico had the most significant relationship to the occurrence and parties, and that the repose statute therefore barred the claims.

torts & liabilityprocedure

The case concerned whether a juvenile court violated the due process rights of a mentally impaired mother by conducting a hearing to terminate her parental rights to her child without postponing proceedings until she could meaningfully participate or assist counsel. After the mother was found unable to engage due to her condition, the court appointed a guardian ad litem (GAL) for her, allowed a stipulated hearing with only the case manager testifying, and excused the mother from attendance; it then granted severance on grounds of prolonged out-of-home placement and inability to parent. On appeal, the court affirmed the termination order, ruling that the mother's due process rights were protected by the participation of her GAL and counsel, who could act on her behalf, and that the GAL had authority to file the notice of appeal. The decision also clarified the scope of a GAL's role in such proceedings under Arizona statutes and rules.

family lawcivil rightsprocedure

The case involved claims by National Transportation Holding Corporation (and related entity Best Choice Fund) against its former law firm Low & Childers for legal malpractice and breach of contract, and against USA Risk Group for breach of a captive management agreement, arising from the formation, regulatory compliance, and later suspension of an Arizona captive insurance company. The trial court granted summary judgment to both defendants, ruling that the claims against the law firm were barred by the statute of limitations and the claim against USA was barred by a release agreement. The appellate court affirmed summary judgment for the law firm on the ground that the malpractice claims accrued more than two years before the suit was filed, but reversed summary judgment for USA and remanded because factual issues remained regarding an agent's authority to bind the principal to the release.

business & regulatoryproceduretorts & liability

In State v. Stevens, the defendant was convicted of possessing dangerous drugs and drug paraphernalia after a jury trial in which the prosecution introduced evidence that she had repeatedly yelled "search warrant" and objected when police entered her home without a warrant, arguing this showed consciousness of guilt. The Arizona Court of Appeals reversed the drug possession conviction and remanded for a new trial, while affirming the paraphernalia conviction. The court held that, consistent with its prior decision in State v. Palenkas, introducing a defendant's refusal to consent to a warrantless search as substantive evidence of guilt violates due process, even under fundamental error review since no objection was made at trial. The decision distinguished this use of the evidence from permissible purposes like impeachment or rebuttal and noted that the error prejudiced the outcome on the possession charge.

criminal lawprocedurecivil rights

The case involved the City of Mesa denying a permit to Ryan and Laetitia Coleman to open a tattoo parlor in a commercial strip mall, after the city's planning board and council expressed concerns about compatibility with the neighborhood, potential crime, and property values. The Colemans sued, alleging violations of their free speech, equal protection, and due process rights under the Arizona and U.S. Constitutions. The trial court dismissed the complaint, finding the denial a reasonable land-use regulation. The appellate court reversed, holding that obtaining, applying, and operating a tattoo business constitute protected speech under both constitutions, so restrictions require heightened scrutiny, and the complaint stated viable claims that warranted factual development rather than dismissal. The matter was remanded for further proceedings.

free speechcivil rightsbusiness & regulatory

In Costa v. MacKey, the petitioner faced charges of continuous sexual abuse of a child and sought bail after an initial no-bond detention; the superior court deemed the offense bondable but imposed $75 million cash-only bail plus other conditions. Costa petitioned for relief, arguing the bail was unconstitutionally excessive and that the amount required a change of judge for cause due to bias. The appellate court accepted special action jurisdiction and ruled that the bail amount was excessive because it greatly exceeded typical amounts in similar cases, bore no reasonable relation to ensuring appearance or public safety under statutory factors, and effectively denied release. The court further held that the bail ruling alone did not demonstrate judicial bias or prejudice sufficient to mandate a change of judge. Relief was granted by vacating the bail order and remanding for a new determination of an appropriate amount.

criminal lawprocedure

In Chappell v. Wenholz, plaintiffs sued multiple defendants for injuries from a group assault outside a hotel bar, alleging the men acted together in punching and kicking them while they lay on the ground. The trial court granted partial summary judgment to defendant Wenholz on the issue of joint liability, concluding there was no evidence of a conscious agreement to commit an intentional tort under A.R.S. § 12-2506(D)(1). On appeal, the court reversed, ruling that evidence of the group members joining the attack in each other's presence after the initial punch could permit a jury to find an implicit agreement to act in concert and inflict battery. The case was remanded for further proceedings on joint liability.

torts & liabilityprocedure

In Long v. Clark, the Longs brought a quiet title action seeking a prescriptive easement over the Clarks' property, and the superior court granted summary judgment to the Clarks. After the Clarks had tendered a quit claim deed request and five dollars to the Longs before answering, the trial court awarded them attorneys' fees under A.R.S. § 12-1103(B). The Court of Appeals reversed the fee award, holding that the statute authorizes fees only to a party who brings its own action to quiet title by filing a complaint, not to defendants who merely defend against such an action or file an answer. The court rejected waiver and counterclaim arguments, noting that an answer is a defense rather than an independent claim and that the Clarks never filed a counterclaim. The grant of summary judgment to the Clarks was affirmed on other grounds.

propertyprocedure

The case was a breach-of-contract dispute between La Paz County and Yakima Compost Company arising from a 25-year agreement allowing Yakima to receive and solar-dry sewage sludge on county land, with disputes over compliance with bond, closure-plan, and environmental requirements leading to the County's lawsuit and Yakima's counterclaim. A jury found via special interrogatories that the County breached the agreement, Yakima did not materially breach it, and Yakima suffered $9.2 million in damages; the trial court entered judgment for that amount, terminated the contract, granted judgment as a matter of law to surety Lincoln General Insurance Company, and denied the County's post-trial motions. On appeal, the court affirmed, holding that the County had waived its notice-of-claim defense, that sufficient evidence supported the jury's findings on breach and damages, and that the trial court committed no reversible error in its evidentiary or instructional rulings.

business & regulatoryenvironment

This case involved the dissolution of a marriage between Ethel and Charles Gersten, including disputes over property and debt allocation as well as a request for support of a disabled adult child. After the original trial judge resigned, a successor judge reviewed video recordings of the proceedings and issued a decree without recalling witnesses. The court considered whether the successor judge complied with Arizona Rule of Family Law Procedure 88, which requires certification of familiarity with the record and permits recalling witnesses if the electronic record is inadequate. The court affirmed in part and reversed and remanded in part, holding that the successor judge need only review relevant portions of the record and that the video recordings were sufficient for credibility assessments under the rule.

family lawprocedure

This case involved a dispute over the interpretation of A.R.S. § 36-521(G), which requires a health care screening agency to submit petitions for court-ordered mental health evaluations alleging danger to others to the county attorney for review before filing. The superior court denied a petition filed by Dr. Sorokin without a county attorney recommendation attached, interpreting the statute to require attachment of any recommendation made. Dr. Sorokin sought special action relief, arguing the statute only mandated attachment of a recommendation that no further proceedings were warranted. The court of appeals held that screening agencies must attach only a county attorney recommendation under subsection (3) that no further proceedings are warranted, based on the statute's text, legislative intent, and the lack of relevance of other recommendations to the court's evaluation decision.

healthcareprocedure

In this products liability case, Jeff Brethauer sued General Motors after he was ejected from his 1998 Chevrolet pickup truck during a hydroplaning accident and suffered paralyzing injuries, alleging that the truck's windows and driver-side seatbelt were defectively designed and manufactured under strict liability and negligence theories. A jury returned a verdict in favor of GM, and Brethauer appealed, claiming errors in the trial court's evidentiary rulings on seatbelt evidence, jury instructions on design defects, and denial of his punitive damages claim. The Arizona Court of Appeals affirmed the judgment, holding that the trial court did not abuse its discretion in its evidentiary decisions, that the jury was properly instructed on the risk-benefit test for design defects, and that Brethauer failed to show a basis for punitive damages. The court found no misconduct by GM that warranted a mistrial or other relief and concluded that the evidence supported the verdict.

torts & liability

This case involved a dispute in a marital dissolution proceeding over whether a family court could reduce and reallocate temporary spousal maintenance and child support payments for periods before a modification petition was filed. The court had initially ordered $7,500 monthly temporary support without prejudice to later adjustments, then at trial reduced the obligation to $1,826.34 monthly and applied the reduction retroactively by spreading actual payments over a longer timeframe. The appellate court affirmed, holding that A.R.S. § 25-327's restrictions on modifying accrued support and setting effective dates apply only to final decrees, not temporary orders governed by A.R.S. § 25-315, which permits nunc pro tunc modifications without an express good-cause finding in the decree. The court further noted that the husband's inability to pay the original amount provided justification for the adjustment.

family law

This case involved two Virginia-based bail enforcement agents who flew on a Southwest Airlines flight from Baltimore to Phoenix with handguns after receiving authorization from SWA personnel, but were arrested by Phoenix police upon landing when the flight captain raised concerns about their authorization under FAA rules. The agents were charged with federal weapons violations (later dismissed), suffered emotional distress from detention and jail time, and sued SWA for negligence and related claims stemming from the airline's conduct in authorizing the flight and reporting to authorities. A jury found SWA liable and awarded compensatory and punitive damages. On appeal, the court affirmed the liability finding, the compensatory damages, and most procedural rulings but reversed the punitive damages award as unconstitutionally excessive, remanding for entry of a reduced amount.

criminal lawgunstorts & liability

The case concerns the State of Arizona's efforts to obtain and enforce a seizure warrant for Western Union wire transfers of $500 or more sent from twenty-eight other states to specific agent locations in Sonora, Mexico, which the State alleged were traceable to racketeering activities involving human smuggling and narcotics trafficking across the Arizona border. The superior court granted Western Union's motion to quash the warrant (except as to Arizona-originating transfers), ruling that it lacked jurisdiction over out-of-state funds, that probable cause was absent, and that the warrant's execution violated constitutional principles; it also entered a preliminary injunction. On appeal, the court held that the superior court possessed jurisdiction to issue the warrant for the described transfers and that the supporting affidavit established probable cause under Arizona's racketeering and forfeiture statutes without violating the Fourth Amendment or Commerce Clause. The court therefore vacated the quash order and injunction and remanded for further proceedings, while noting limits on overly broad warrants.

criminal lawprocedure

The case concerned whether a homeowners' association's lawsuit against a property owner for breaching deed restrictions on landscaping and debris removal qualified as an action affecting title to real property, which would permit recording a lis pendens under A.R.S. § 12-1191(A). The association had filed the complaint seeking injunctive relief and a potential future lien for cleanup costs if the owner failed to comply, then recorded the lis pendens; the owner responded with a counterclaim for wrongful recording under A.R.S. § 33-420(A). The trial court granted partial summary judgment to the owner, finding the lis pendens improper, and awarded statutory damages plus attorney fees. The appellate court affirmed that the suit did not affect title because it involved only enforcement of maintenance obligations without an existing lien or judgment, but vacated the fee award and remanded for recalculation of only those fees tied to the counterclaim.

propertyprocedure

This case involved whether a subsequent buyer of commercial apartments could sue the general contractor for breach of the implied warranty of workmanship and habitability based on an express assignment of that warranty from the original owner. The trial court granted summary judgment to the contractor, finding that prior precedent (Hayden) prevented extension of the warranty to subsequent purchasers of commercial property without privity. The appeals court reversed, holding that the original owner could validly assign its rights under the implied warranty to the new owner, as such assignments of contract rights are permissible and Hayden did not prohibit them. The matter was remanded for further proceedings.

property

The case concerned which utility should receive a certificate of convenience and necessity from the Arizona Corporation Commission to provide water service to the new Sandia development in Pinal County. Arizona Water Company held existing certificates for nearby areas and sought an extension, while the developer formed Woodruff Water Company to apply for the certificate and integrate it with wastewater services. The Commission awarded the certificate to Woodruff Water after an evidentiary hearing, and the superior court affirmed. The appellate court held that Arizona does not recognize a common-law first-in-the-field doctrine granting existing utilities priority to serve new customers in or near their service areas, and that the record contained sufficient evidence supporting the Commission's choice based on public interest factors such as service integration.

business & regulatory

In this case, a real estate developer sued a surveying and engineering firm for breach of contract and professional negligence after an inaccurate survey caused permitting issues and required redesign costs. The parties' contract contained a limitation-of-liability clause capping the firm's responsibility for its own negligence at the fees actually paid by the developer. The trial court initially deemed the clause unenforceable on public-policy grounds but later granted partial summary judgment enforcing it and limiting damages to approximately $14,000. The appellate court held that Arizona public policy does not bar such clauses in design-professional contracts and that, under Article 18, Section 5 of the Arizona Constitution, a jury must decide whether the clause is enforceable.

business & regulatoryproceduretorts & liability