Thomas Brooks

Mission Insurance Company sued Cash, Sullivan & Cross and its agent for misrepresentations that allegedly caused Mission to issue an insurance policy and pay over $3 million on a claim. After the case was placed on the inactive calendar and delayed by an injunction from a separate receivership proceeding, Mission's attorney failed to seek relief from the injunction or otherwise prosecute the action, leading to dismissal without prejudice for lack of prosecution in March 1989. Mission moved for relief from judgment under Arizona Rule of Civil Procedure 60(c)(6) and alternatively for permission to refile under the savings statute, A.R.S. § 12-504, but the trial court denied both motions, citing the absence of extraordinary circumstances and Mission's prolonged failure to pursue its claim. The Court of Appeals affirmed, holding that the trial court did not abuse its discretion in denying relief.

procedurebusiness & regulatory

In Ammer v. Arizona Water Co., the Ammers sought a prescriptive easement over a portion of land owned by Arizona Water Company that they and their lessees had used as a parking lot since 1971, after AWC fenced the area and counterclaimed for trespass and to quiet title. The trial court granted summary judgment to AWC, finding that the Ammers had not shown the required ten years of continuous exclusive possession. The appellate court reversed and remanded, holding that exclusive possession is not an element of a prescriptive easement claim and that the Ammers should have the opportunity to present evidence on whether successive periods of use could be tacked based on privity of estate. The opinion clarified that the rules for adverse possession do not fully apply to easements by prescription, particularly regarding exclusivity.

property

The case involved Harvey and Anna Marie Blutreich seeking a declaratory judgment against Liberty Mutual Insurance Company regarding the extent of coverage obligations under the underinsured motorist provision of their automobile policy following a 1982 accident in Arizona. The trial court entered judgment for the insurer, ruling that the six-year statute of limitations for contract actions barred the claim because it began to run on the date of the accident. On appeal, the court reversed and remanded, holding that the limitations period instead begins only upon an event constituting a breach by the insurer, such as its refusal to pay disputed benefits, consistent with general contract law principles applied to uninsured and underinsured motorist claims.

proceduretorts & liability

This case involved an Arizona workers' compensation claimant who suffered a lower back injury in 1984 while employed by one company, had that claim closed without permanent impairment, and then experienced a second back injury in 1986 while working for a different employer. The claimant filed both a petition to reopen the first claim and a new injury claim, which were consolidated before the Industrial Commission. The administrative law judge initially granted reopening and denied the new injury claim, but after appellate review the court applied the successive injury doctrine, determining that the second injury qualified as a new compensable event and that the remedies were mutually exclusive when both were actively pursued. The court affirmed the award granting the new injury claim while denying reopening, reasoning that when a claimant pursues both alternatives in a consolidated proceeding the successive injury doctrine governs to prevent double recovery for the same condition.

labor & employment

The case involved the state's appeal from the dismissal with prejudice of a second indictment charging Frank Robert Marquess with manslaughter and endangerment arising from a fatal motor vehicle accident. After the initial indictment was dismissed without prejudice and converted to with prejudice when the state failed to refile within thirty days, the state obtained a new indictment based on the same charges. The trial court granted the defendant's motion to dismiss the new indictment, and the appellate court affirmed, holding that the prior dismissal order became a final judgment barring refiling even without an explicit finding that the interests of justice required dismissal with prejudice under Arizona Rule of Criminal Procedure 16.5(d), as such a finding could be presumed from the circumstances. The court rejected jurisdictional challenges and concluded that further prosecution was precluded once the order was not timely challenged.

criminal lawprocedure

In State v. Takacs, the state appealed the trial court's dismissal of an indictment charging defendants with multiple counts of promoting gambling under A.R.S. section 13-3303, based on the court's finding that the statute and its exceptions for amusement and social gambling were unconstitutionally vague due to undefined phrases such as 'control to any material degree,' 'conducted as a business,' and 'compete on equal terms.' The Arizona Court of Appeals reversed, holding that the statute is not unconstitutionally vague. The court reasoned that due process does not require absolute precision in drafting, that there is a strong presumption of constitutionality for legislative enactments, and that a statute is not vague merely because certain terms are undefined or susceptible to multiple interpretations, as long as it provides fair notice and adequate standards for enforcement.

criminal law

This case involved a libel lawsuit filed by William Heuisler against Phoenix Newspapers, Inc. and its publisher after articles reported on Heuisler's prior military court-martials, a 1980 conviction for disorderly conduct stemming from an assault charge, and his failure to disclose the conviction on his private investigator's license renewal. Heuisler had been nominated for a state position by Governor Evan Mecham, making him a public figure. The trial court granted summary judgment to the defendants, and the Court of Appeals affirmed, holding that Heuisler failed to present evidence of actual malice as required for public figures under libel law and that the statements were substantially true or non-actionable. The court also affirmed the denial of attorney's fees to the defendants.

free speechtorts & liability

This case is a multi-claim dispute between a plumbing and HVAC subcontractor (Egan-Ryan) and a commercial property developer (Cardón Meadows) arising from several construction contracts for shell buildings and tenant improvements across eight Phoenix-area complexes. After Cardón Meadows fell behind on payments, Egan-Ryan sued for breach of contract, open account, quantum meruit, and foreclosure of approximately 77 mechanic’s liens totaling over $450,000; Cardón Meadows countersued for interference with contractual relations, recording false liens, breach of contract, and slander of title. The trial court entered partial summary judgment for Egan-Ryan on its contract claim ($449,235.05 plus interest and fees) and dismissed two of the false-lien counterclaims, then certified those rulings as final under Ariz. R. Civ. P. 54(b). On appeal, the court examined its jurisdiction over the certified judgments and cross-appeal, the timeliness of the liens measured from completion of the shell buildings versus later tenant suites under A.R.S. § 33-993, and the sufficiency of the evidence supporting summary judgment, ultimately affirming the trial court’s disposition of the certified claims while remanding unresolved portions of the litigation.

business & regulatorypropertyprocedure

In State v. King, the defendant appealed his conviction for robbery, a nondangerous repetitive class 4 felony, after a jury trial, and the resulting presumptive six-year prison sentence ordered to run consecutively to any future sentence from a pending probation revocation in another county. The court addressed two issues: whether the trial court erred in denying a jury instruction on theft as a lesser-included offense of robbery, and whether it erred in imposing a consecutive sentence to a term not yet imposed. The court affirmed the conviction, finding that the evidence from the victims and investigating officer supported only a robbery charge involving threats or force, so no theft instruction was required under precedents like State v. Celaya and State v. Leon. However, it remanded for resentencing because Arizona statutes, including A.R.S. § 13-708, authorize consecutive sentences only to existing terms, not future ones, as the latter create implementation problems and limit judicial discretion.

criminal lawprocedure

The case involved Carl Bailey, who was convicted by a jury of four counts of child molestation and one count of child abuse based on evidence that he touched the genitals and breasts of juvenile female victims. Prior to trial, the court admitted testimony about other similar uncharged acts after a psychologist testified that the defendant had an emotional propensity to commit sexually aberrant acts. On appeal, the sole issue was whether the psychologist's testimony was sufficient to establish the foundation for admitting the other acts evidence, or whether only a medical doctor could provide such testimony. The court ruled that licensed psychologists are competent to offer this testimony under Arizona statutes that authorize them to diagnose mental health conditions, and it affirmed the convictions and consecutive sentences totaling 127 years.

criminal lawprocedure

This case is an appeal from an Arizona trial court decree dissolving the marriage of Linda and John Elliott, focusing on the awards of child support and spousal maintenance. The appellate court held that the trial court's findings of fact were insufficient under Rule 52(a) of the Arizona Rules of Civil Procedure because they failed to address all statutory factors under A.R.S. sections 25-320(A) and 25-319 or provide a mathematical basis for the $2,000 monthly awards. The core reasoning is that such findings on ultimate facts, including the parties' standard of living, earning capacities, and contributions to the marriage, are required to enable meaningful appellate review of whether the awards complied with the guidelines and statutes.

family lawprocedure

The case involved Westmoor Electric, Inc., which had subcontracted work to Western Communications, Inc. (WCI) and received notices from both WCI and its secured lender, Independent National Bank, directing that payments on the contract be made directly to the bank after WCI defaulted on a loan. Despite the notices, Westmoor continued making payments to WCI and later completed the work itself after WCI abandoned the project, incurring extra costs. The bank sued Westmoor for the amounts it had been directed to pay, and the trial court granted summary judgment to the bank. The appellate court reversed, holding that under Arizona's version of UCC section 47-9318, the bank's claim as assignee was subject to any claims or defenses Westmoor could assert against WCI arising from their contract, including setoffs for breaches that occurred after the assignment notice, and that material factual disputes existed as to whether Westmoor ultimately owed the bank anything.

business & regulatoryprocedure

In State v. Altamirano, the defendant was charged with sexual abuse and second-degree burglary after fondling his 15-year-old daughter in their shared home while intoxicated. He entered a plea agreement dismissing the sexual abuse count and reducing the burglary charge to attempted burglary in the second degree, leading to probation and jail time. On appeal, the court held there was no factual basis for the attempted burglary plea because the current statute requires entering or remaining unlawfully in a residential structure, and the defendant had an absolute right to be in his own home. The court distinguished prior case law under an older burglary statute that did not require unlawful entry and reversed the conviction, remanding with instructions to vacate the plea and reinstate the original sexual abuse charge.

criminal law

In State v. Ruelas, the defendant was convicted of manslaughter after stabbing the victim during a fight outside an ex-girlfriend's home, which he claimed was in self-defense. On appeal, he argued that the trial court erred by refusing to instruct the jury on negligent homicide as a lesser included offense, by giving unclear or repudiated instructions on the burden of proof for self-defense, and by rulings on hearsay, impeachment, and alternate juror selection. The Arizona Court of Appeals affirmed the conviction, holding that the evidence did not support a negligent homicide instruction because the sole defense presented was self-defense and that the self-defense instructions, when read as a whole, correctly placed the burden on the state. The court rejected the other claims of error as well.

criminal lawprocedure

In Griffith v. Faltz, a visitor to a condominium complex sued the president of the homeowners’ association after his vehicle was towed from a parking space inside the complex, claiming tortious interference with chattels and property damage. The trial court granted summary judgment to the defendant, ruling that Arizona Revised Statutes section 33-1251(A) required the action to be brought against the association rather than an individual unit owner. The appellate court reversed this decision, holding that the statute does not bar suits against individuals for their own allegedly tortious conduct. The court reasoned that the provision, based on the Uniform Condominium Act, aims to avoid naming all unit owners in suits against the association and does not alter the general principle that agents remain liable for their personal torts.

propertytorts & liability

The case involved a dispute between the sellers (the Stapleys) and the buyer (ABL) of a warehouse over whether the buyer owed rent for its partial possession of the property from November 1985 until the sale closed in January 1986. The parties had no express agreement for rent, and the buyer took possession under an executory purchase contract that eventually closed. A jury awarded the sellers back rent, but the appellate court reversed, holding that the doctrine of equitable conversion precluded recovery because the buyer was not a tenant and the purchase price included consideration for occupancy. The court also ruled that A.R.S. section 12-1271 did not authorize rent recovery under these facts, as the sellers were not entitled to rent and the buyer had not wrongfully refused possession. The matter was remanded with directions to enter judgment for the buyer.

property

The case involved a negligence lawsuit by the Udy family against the owners of a mobile home park after their young child was struck by a vehicle on an adjacent busy street. The parents had requested but were denied permission to erect a fence around their lot due to park rules, which they claimed would have prevented the accident. The trial court granted summary judgment to the defendants, but the Court of Appeals reversed, holding that the landlord had a duty to exercise reasonable care over the use of the premises to protect minor tenants from external dangers, and whether that duty was breached was a factual question for a jury rather than a matter of law.

torts & liabilityproperty

This case involved an appeal from a juvenile court order terminating a father's parental rights to his daughter on grounds of willful abuse, based on his prior general court-martial conviction for rape, sodomy, and related sexual offenses against the child. The father challenged the termination on due process grounds, arguing that admitting a transcript of the child's prior court-martial testimony (with cross-examination) without requiring her to testify live at the severance hearing violated his rights to confrontation, and he also disputed findings about his military sentence. The Department of Economic Security cross-appealed on sentencing issues. The court affirmed the termination order as modified, holding that the child was unavailable as a witness due to expert testimony on the significant emotional harm and therapeutic regression that testifying would likely cause, that the transcript was reliable and admissible under state rules and statutes allowing out-of-court statements in such proceedings, and that the father's constitutional rights were adequately protected by the prior opportunity for cross-examination and the balancing of interests. The decision rested solely on the willful abuse allegation after dismissing the other statutory grounds tied to the fluctuating military sentence.

family lawprocedure

In State v. Thomason, the defendant was charged with first-degree murder after shooting a business associate during a confrontation at a construction company's premises and was convicted by a jury of the lesser offense of second-degree murder with an aggravated sentence of eighteen years. On appeal, the sole issue was whether the trial court erred in refusing to instruct the jury on the crime-prevention justification defense under A.R.S. § 13-411, which permits the use of deadly force to prevent certain enumerated crimes including aggravated assault. The court held that the instruction was properly refused because the statute's application is limited by its legislative purpose to situations involving the protection of a home, its contents, or residents therein, and the facts here involved a commercial worksite with no such connection. The court reasoned that construing the statute in light of the accompanying policy statement avoids overlap with self-defense provisions and aligns with the legislature's intent to safeguard residential sanctity.

criminal law

The case involved a defendant who pled guilty to second-degree burglary, a class 3 felony, and was initially placed on intensive probation despite being statutorily ineligible, as Arizona law at the time limited that disposition to defendants convicted of class 4, 5, or 6 felonies. After discovering the error, the trial court vacated the probation order under Rule 24.3 of the Arizona Rules of Criminal Procedure and imposed the minimum prison term of 3.75 years. The defendant appealed, arguing that the court lacked authority to eliminate probation entirely since he remained eligible for regular probation. The appellate court affirmed the sentence, reasoning that the original intensive probation order was an unlawful sentence because intensive probation is a distinct statutory disposition rather than a modifiable condition, and Rule 24.3 expressly permits correction of such unlawful sentences within 60 days.

criminal lawprocedure