James D. Hathaway

This case involved a lawsuit by Larry and Gina Linch against their medical providers (Thomas-Davis Medical Centers and psychologists Sutherland and MacGregor) and the providers' law firm (Snell & Wilmer) for damages arising from the release of the Linches' confidential psychological records. The records were seized pursuant to a search warrant issued in a criminal investigation of Larry Linch for domestic violence; the providers initially resisted a grand jury subpoena but complied with the warrant after it was issued, and the court later ordered the records released. The trial court granted summary judgment to the defendants, and the Court of Appeals affirmed, holding that a search warrant must be obeyed even if it seeks privileged material, that the psychologist-client privilege (treated like the attorney-client privilege) does not prevent such a seizure, and that the providers were protected by a statutory presumption of good faith in disclosure that the plaintiffs did not rebut. The court also found no abuse of discretion in the denial of leave to amend the complaint to add RICO claims.

criminal lawprocedurehealthcaretorts & liability

This case was a wrongful death lawsuit brought against First Interstate Bank after a customer was murdered by Patrick Slay during an ATM robbery at the bank. The bank moved to designate Slay as a non-party at fault under Arizona's comparative fault statute, A.R.S. § 12-2506, but the trial court granted the plaintiffs' motion to strike the designation. The appellate court reversed, holding that the statute permits allocation of fault between a negligent defendant and a non-party who commits an intentional criminal act. The court reasoned that the statute's broad language requiring consideration of the fault of all persons who contributed to the injury is unambiguous and encompasses intentional conduct, consistent with the legislative goal of several liability based on each party's percentage of fault.

criminal lawtorts & liability

The case involved a juvenile who was adjudicated delinquent for armed robbery and committed by the juvenile court to the Arizona Department of Juvenile Corrections for a minimum of two years in secure care under a 1994 amendment to A.R.S. § 8-241 allowing courts to set minimum periods. The minor appealed, claiming the amendment's application violated the prohibition on ex post facto laws because it allegedly permitted greater punishment than existed at the time of the offense, and that denial of credit for pre-adjudication time served in detention violated equal protection. The court affirmed the disposition, holding that the statute applied to commitments on or after September 30, 1995, did not increase the maximum possible commitment period (which remains until age 18), and that juveniles committed to juvenile facilities are not similarly situated to adults for purposes of credit on indeterminate periods. The court rejected both constitutional claims and upheld the order.

criminal lawfamily law

The case concerned a mechanic's lien filed by Sunstate Equipment Corp. against the Guarriellos' residence after the company rented equipment to their contractor, who failed to pay. The trial court granted summary judgment to the Guarriellos under A.R.S. § 33-420(A), awarding $5,000 in damages plus attorney fees, and denied their request for additional damages under subsection (C). The Court of Appeals affirmed the summary judgment, holding that Sunstate could not validly record the lien because there was no written contract with the owner-occupants as required by § 33-1002(B) and that Sunstate bore the burden of verifying the owners' status before filing. It reversed on the cross-appeal, ruling that the statute allowed cumulative penalties under both subsections when Sunstate refused to release the lien after written demand.

property

In State v. Muniz-Caudillo, the defendant was tried and convicted in his absence by a jury on charges of unlawful offer to sell a narcotic drug, unlawful possession of a narcotic drug, possession of a deadly weapon during a felony drug offense, and conspiracy to commit a class two felony. After his arrest nearly a year later, he received concurrent prison sentences and appealed on the ground that the trial court abused its discretion by finding he had voluntarily waived his right to be present at trial. The appellate court affirmed the convictions and sentences, holding that the defendant had been personally warned that proceedings could continue in his absence, failed to appear at the pretrial conference where the trial date was set, and did not contact counsel or pretrial services to learn the status of his case. Under Arizona Rule of Criminal Procedure 9.1, these facts supported an inference of voluntary absence that the defendant did not rebut.

criminal lawprocedure

The case involved Phoenix Newspapers, Inc. petitioning for access to foster parent licensing records held by the Arizona Department of Economic Security. The trial court allowed PNI to view the files but required redaction of foster parents' personally identifiable information such as names, addresses, and Social Security numbers. On appeal, the court affirmed the redaction order, concluding that foster parents are "applicants" under A.R.S. § 41-1959(A), rendering their personal information confidential. The court reasoned that the statute's confidentiality rules apply to licensing applicants and take precedence over general public records disclosure statutes, even after legislative amendments addressing child protective services.

free speechfamily lawprocedure

The case involved Fred Roscoe's appeal of his convictions for two counts of aggravated assault on police officers, disorderly conduct, and resisting arrest arising from two separate incidents in which he fought with officers responding to reports of domestic disputes. The Arizona Court of Appeals affirmed the convictions, rejecting arguments that the trial court erred by excluding evidence of prior violent acts by the officers, denying discovery of internal affairs records, refusing a requested jury interrogatory on physical injury, denying pretrial interviews of the officers, and rejecting a proposed jury instruction clarifying resisting arrest. The court reasoned that character evidence of the officers was inadmissible without a showing that Roscoe knew of their prior acts, that prior complaints could not be used to prove conduct on a specific occasion, that aggravated assault on a peace officer is a felony regardless of injury, that the Victim's Bill of Rights protected the officers from compelled interviews, and that the requested instruction was an improper comment on the evidence.

criminal lawprocedure

The case involved Malcolm Henry Tabor's appeal of his first-degree burglary conviction following a jury trial, with the published portion addressing the denial of his motion for a directed verdict. Tabor argued that he had merely possessed weapons as stolen loot rather than being armed with them during the burglary, relying on prior case law interpreting an older version of the statute. The court upheld the trial court's ruling and affirmed the conviction, noting that the Arizona legislature amended A.R.S. § 13-1508(A) in 1988 to replace the "armed with" requirement with "knowingly possess," thereby superseding earlier interpretations. Substantial evidence established that Tabor possessed a pistol, pellet rifle, and Ninja swords during the burglary.

criminal law

In State v. Carbajal, the defendant entered a plea agreement to three counts of attempted child molestation, all classified as dangerous crimes against children, with the agreement specifying that two counts would involve prison time and one would allow lifetime probation. The trial court initially imposed concurrent ten-year sentences but vacated them after realizing that A.R.S. § 13-604.01 required consecutive sentences, which had not been disclosed at the plea hearing; the defendant then declined to withdraw his plea and received consecutive eight-year mitigated terms. On appeal, the court affirmed the judgment, ruling that double jeopardy does not apply to resentencing in noncapital cases, that the original sentence was illegal because it deviated from mandatory statutory requirements, and that procedural rules allowing correction of unlawful sentences within sixty days permitted the adjustment even if it resulted in a longer total term.

criminal lawprocedure

The case was a legal malpractice action brought by clients against the law firm Winston and Strawn, Cole and Dietz, based on an associate's conduct in matters ending by 1989; after the New York suit was dismissed on forum non conveniens grounds with an agreement to refile in Arizona, the Arizona trial court dismissed the suit against the firm alone because a partnership is not a suable entity under common law and A.R.S. § 29-213, and the statute of limitations barred adding the individual partners. The Court of Appeals reversed the dismissal. It held that Ariz. R. Civ. P. 17(j) expressly allows a partnership to sue or be sued in its own name, that the Uniform Partnership Act provisions (including A.R.S. §§ 29-209, 29-213, and 29-215) make the partnership liable for a partner's acts in the ordinary course of business with partners jointly and severally responsible for that liability, and that failure to name the partners did not prevent proceeding against the firm itself.

proceduretorts & liability

This case involved a dispute over a commercial lease for theater space in Tucson, where tenant Anthony Terry claimed he was not obligated to pay pass-through charges for real estate tax increases, insurance premiums, and common area maintenance under his original lease with the prior landlord. After Gaslight Square Associates purchased the property and demanded those payments, Terry paid under protest and later sued for reimbursement of over $100,000, while the landlord counterclaimed on separate leases. The jury awarded Terry $80,881 on the original lease (offset by findings on the other leases), and the trial court denied the landlord's motions for directed verdict and judgment NOV. On appeal, the court affirmed, holding that the lease provisions were subject to parol evidence showing the parties' intent not to enforce the pass-throughs and that the fixed rent increases covered those costs, with no reversible errors in the jury instructions or evidence rulings.

propertybusiness & regulatory

This case involved a dispute within the Madison School District governing board over Procedure KLD-R, a policy adopted to review complaints about board members in executive session and potentially impose public censure. One board member, Carolyne Berry, sued for injunctive relief after the board refused to repeal the policy, arguing it exceeded the board's powers. The trial court granted summary judgment and a permanent injunction barring enforcement, which the appellate court affirmed as modified by striking overly broad language prohibiting actions "in any other fashion." The court held that school districts possess only powers expressly or impliedly granted by the legislature under Title 15 and related statutes, with no authority for internal investigations or censure of members, and that implementation would cause irreparable harm to an elected official's reputation. The decision rested on de novo review of statutory interpretation and abuse-of-discretion review of the injunction, while rejecting First Amendment challenges to the relief granted.

procedurefree speech

This case involved a material supplier, Trio Forest Products, seeking payment under a general contractor's surety bond for materials supplied on a public bridge project after the original subcontractor defaulted and its surety took over completion through a subsidiary. The trial court granted summary judgment to the general contractor and its surety, finding the supplier too remote in the contractual chain to recover under Arizona's Little Miller Act. The appellate court reversed, holding that the Act protects such suppliers based on the functional relationship between the parties rather than strict privity, especially where proper preliminary notice was given and the general contractor treated the completing entity as its subcontractor. The court emphasized the Act's purpose to ensure payment for labor and materials on public projects where liens are unavailable.

business & regulatory

This case involved a wrongful death lawsuit brought by the parents of a college student who fell to her death from a moving train during a tour to Mexico organized and sold by the defendant travel agency, Cerkvenik-Anderson Travel (doing business as College Tours). The trial court had granted summary judgment to the agency on the ground that it owed no duty of care to the decedent regarding the tour's safety, but the appeals court reversed that ruling. The court held that travel agents and tour operators act as agents for their clients and therefore owe duties to exercise reasonable care for safety, to disclose known material risks such as prior deaths on the same train route, and to avoid misrepresentations. The court affirmed the denial of summary judgment on the agency's alternative defense based on a liability waiver/release signed by the student, finding that the release's validity depended on unresolved factual issues about whether the agency had fulfilled its disclosure obligations. The decision turned on established principles of agency and tort law rather than the specific facts of the accident itself.

torts & liabilityprocedure

This case is a product liability action in which plaintiff Richard Jimenez was injured when a disk sander he bought at Sears shattered, leading to a jury verdict in his favor. Sears appealed, arguing that the trial court erred by refusing a comparative fault instruction under A.R.S. § 12-2506, by not ordering a new trial for juror misconduct, and by excluding evidence of the sander's safety history. The court reversed and remanded for a new trial, holding that the legislature's adoption of comparative fault altered the prior all-or-nothing misuse defense under A.R.S. § 12-683(3), so the jury should have been allowed to apportion fault if the plaintiff's misuse was a concurrent proximate cause. The court did not reach the juror misconduct issue but found the trial court also erred in excluding the safety history evidence because the defendant's detailed offer of proof met the standards from Jones v. Pak-Mor Mfg. Co.

torts & liabilityprocedure

In this case, a passenger injured when a rented golf cart ran a stop sign on a course crossing public roads sued the driver and the operators (SCV and Del Webb), who had included cart use in green fees without registering or insuring the carts under Arizona’s rented vehicle statute. The trial court granted summary judgment imposing joint and several liability on the operators for the passenger’s damages. The appellate court affirmed, holding that the statute applied because the carts were operated on highways (defined to include the crossed roads), were not among the listed exemptions from registration, and lacked the required liability insurance.

torts & liabilitybusiness & regulatory

This case involved a lawsuit by the Morton family against Maricopa County alleging negligence by the Sheriff's Office in failing to identify the skeletal remains of their murdered son Guy, who disappeared in 1975, and by the Medical Examiner's Office in incinerating those remains in 1984 without identification. After a jury awarded the family nearly $1 million in damages, the county appealed, challenging the sufficiency of evidence for negligence, the verdict, and the damages amount. The court affirmed liability against the county solely for the Medical Examiner's negligence toward the parents, holding that the office had a duty to handle remains respectfully and preserve them as evidence in homicide cases, but found no actionable negligence by the Sheriff's Office and no claims for the siblings. It reversed the damages award because they could not be allocated between the two offices and remanded for a new trial limited to damages for the parents.

torts & liabilityprocedure

This case involved a boundary dispute between neighboring homeowners over a three-foot-wide strip of land that the Inchs had used for parking their cars for decades. The McPhersons sought to quiet title after a survey revealed the strip was on their property, while the Inchs claimed a prescriptive easement based on long-term open use. The trial court awarded the Inchs a prescriptive easement for parking but also permitted them to build a block wall on the land. On appeal, the court affirmed the easement, finding sufficient evidence of adverse, continuous, and exclusive use for the statutory period, but vacated the wall order because it exceeded the scope of the established use. The court rejected the McPhersons' constitutional due process claim, noting no state action was involved.

property

The case involved a defendant convicted by jury of unlawful production of marijuana weighing eight pounds or more, after police discovered approximately ten pounds of plants in his home via a search warrant based on tips, utility records, and infrared surveillance. The trial court barred his proposed medical necessity defense for the production charge, ruling it unavailable under Arizona law despite allowing it for a related possession charge, and the defendant was sentenced to a mitigated prison term. On appeal, the court affirmed the conviction, holding that the legislature had abrogated common-law defenses like medical necessity in the criminal code through A.R.S. § 13-103 and by classifying marijuana as a Schedule I substance with strict controls, and that jury instructions adequately covered the weight element despite no explicit objection. The court also rejected claims of procedural error in handling the state's motion and found no constitutional right to present the defense.

criminal law

This case involved an employee who was fired by Southern Pacific Transportation Company and sued, claiming an oral employment contract that guaranteed continued work until he reached retirement age and qualified for pension benefits. After the employee's deposition revealed the alleged terms of the unwritten agreement, the employer moved for summary judgment on the ground that the contract was unenforceable under Arizona's Statute of Frauds because it could not be performed within one year. The trial court granted the motion, and the Court of Appeals affirmed, holding that a fixed-term employment agreement extending beyond one year falls within the statute even if it might end early due to death or other events, distinguishing such contracts from at-will employment arrangements. The court also rejected arguments that the statute-of-frauds defense was waived, that promissory estoppel applied, or that the attorney-fee award was improper.

labor & employmentprocedure