Arizona Points and Authorities
On this page, you will find Arizona Points and Authorities:
“`[A]bandonment,’ as applied to personal property … means the act of voluntarily and intentionally relinquishing a known right….” See Tissicino v. Peterson, 211 Ariz. 416, 420, ¶ 12, 121 P.3d 1286, 1290 (App.2005) (quoting 1 Am.Jur.2d Abandoned, Lost, and Unclaimed Property § 3 (2005)). Strawberry Water Co. v. Paulsen, 220 Ariz. 401, 207 P.3d 654 (App., 2008).
Abuse of Discretion
A court abuses its discretion if there is “no evidence to support its conclusion or the reasons given by the court are clearly untenable, legally incorrect, or amount to a denial of justice.” Searchtoppers.com, L.L.C. v. TrustCash LLC, 231 Ariz. 236, 241, ¶ 20 (App. 2012).
Abuse of Process
The essential elements of a claim for abuse of process are an ulterior purpose and a willful act in the use of judicial process not proper in the regular conduct of the proceeding. Nienstedt v. Wetzel, 133 Ariz. 348, 651 P.2d 876 (App.1982); see also Restatement (Second) of Torts § 682 (1977).
Acceptance of Evidence
A trial court is not “bound to accept as true the [evidence] of disinterested witnesses unless in the whole case there are no circumstances or matters which cast suspicion upon or impair its accuracy.” In re Wainola’s Estate, 79 Ariz. 342, 346, 289 P.2d 692, 695 (1955).
Accord & Satisfaction
An “accord and satisfaction discharges a contractual obligation or cause of action when the parties agree to exchange something of value in resolution of a claim or demand and then perform on that agreement, the accord being the agreement, and the satisfaction its execution or performance.” Best Choice Fund, LLC v. Low & Childers, P.C., 228 Ariz. 502, 510 ¶ 24, 269 P.3d 678, 686 (App. 2011) (quoting Vance v. Hammer, 105 Ariz. 317, 319, 464 P.2d 340, 342 (1970)) (internal quotation marks omitted). The four elements of an accord and satisfaction are (1) proper subject matter, (2) competent parties, (3) assent or meeting of the minds of the parties, and (4) consideration. Vance, supra, 105 Ariz. at 320, 464 P.2d at 343.
“An account stated or “stated account:” signifies an agreed balance between the parties to a settlement; that is, that they have agreed after an investigation of their accounts that a certain balance is due from one to the other. But whether this agreement was express or implied is immaterial so long as it is actual; the agreement itself, and not the manner of reaching it, being the important consideration. Chittenden & Eastman Co. v. Leader Furniture Co., 23 Ariz. 93, 94, 95, 201 P. 843, 844 (1921).” Trimble Cattle Company v. Henry & Horne, 122 Ariz. 44, 47, 592 P.2d 1311 (App. 1979).
Parties to a fiduciary relationship have a right to an accounting. Divizio v. Kewin Enters., Inc., 136 Ariz. 476, 479, 666 P.2d 1085, 1088 (App. 1983). To be subject to court-ordered accounting, a defendant “‘must appear to have been intrusted with property of the plaintiff and, in consequence to have become bound to reveal his dealings with it.’” Mollohan v. Christy, 80 Ariz. 141, 143, 294 P.2d 375, 376-77 (1956) (quoting Reinhard v. Reinhard, 56 N.Y.S.2d 160, 161-62 (N.Y. Sup. Ct. 1945)).
The court’s approval of an accounting generally bars any later action against the trustee on the approved matters. In Matter of Cvr 1997 Irrev. Trust v. Retter, 202 Ariz. 174, 176, ¶ 12, 42 P.3d 605 (App. 2002). “The settlement of a trustee’s account in a court having jurisdiction to settle his accounts renders res judicata matters which were open to dispute, whether or not actually disputed.” Restatement (Second) of Trusts § 220, cmt. a.
Arizona long ago established that the court’s approval of an estate administrator’s accounting bars an attempt to reopen consideration of items presented in the accounting. In re Estate of Thurston, 199 Ariz. 215, 219 16 P.3d 776 (App. 2000) citing In re Sullivan’s Estate, 51 Ariz. 483, 494, 78 P.2d 132, 136-37 (1938). In other words, the judicial settlement of interim accountings “as to persons who receive notice and are subject to the court’s jurisdiction bars subsequent litigation seeking to raise defaults or defects with respect to the matters shown or disclosed.” Estrada v. Arizona Bank, 152 Ariz. 386, 389, 732 P.2d 1124, 1127 (App. 1987).
A.R.S. § 33-401(B) requires all conveyances of real property to be “duly acknowledged.” An acknowledgment generally consists of two parts. First, the grantor acknowledges the conveyance before an official authorized to take acknowledgments and, second, the official certifies the grantor’s acknowledgment. See Lewis v. Herrera, 208 U.S. 309, 315, 28 S. Ct. 412, 413, 52 L. Ed. 506 (1908) (acknowledgment by grantor before authorized official is prerequisite to validity of a deed); L.S. Teller, Annotation, Sufficiency of Certificate of Acknowledgment, 25 A.L.R. 2d 1124 (1956) (acknowledgment authenticates conveyance of property and certificate is an authentication of the acknowledgment by an official).
Acknowledgment of debt
To be effective, an acknowledgment of debt must sufficiently identify the obligation, state an express or implied promise to pay, and contain a direct or implied expression of the “justness” of the debt. Freeman v. Wilson, 107 Ariz. 271, 275-76 (1971); see also De Anza Land & Leisure Corp. v. Raineri, 137 Ariz. 262, 267 (App. 1983) (“It is well established that in order to remove the applicable statute of limitations, ‘there must be both (a) an acknowledgment of the debt, and (b) willingness to pay it.’”) (quoting John W. Masury & Son v. Bisbee Lumber Co., 49 Ariz. 443, 466 (1937)). The exact amount or nature of the debt need not be specified. Bulmer v. Belcher, 22 Ariz. App. 394, 396 (1974). However, the acknowledgment must be made to the creditor, someone acting for the creditor, or to a third person with the intent that it be communicated to the creditor. Id.
A partner acquiesces to an invalid or unauthorized contract, and thereby validates a transaction, by manifesting both knowledge and acceptance of it. See Wash. Nat’l Trust Co. v. W.M. Dary Co., 116 Ariz. 171, 174-75, 568 P.2d 1069, 1072-73 1977).
“Statements in a pleading are admissible against the party making them as proof of facts admitted therein.” Brenteson Wholesale, Inc. v. Ariz. Pub. Serv. Co., 166 Ariz. 519, 522 (App. 1990). As this Court has explained:
The words of a party, like the words of any other witness, are rarely conclusive. They may be disputed as inaccurate by either. To this there are two exceptions. When a party by pleading or stipulation has agreed to a certain set of facts, he may not contradict them. This is a rule not of evidence but of pleading. When the parties have framed the issues for resolution, they may not change them absent an amendment of the pleadings or trial of the issue by consent. A party so bound is often said to have made a judicial admission. Black v. Perkins, 163 Ariz. 292, 293 (App. 1989); see also Armer v. Armer, 105 Ariz. 284, 288 (1970) (party who admitted certain property was community property was precluded “[b]y the pleadings alone” from later objecting to that characterization of the property); Schwartz v. Schwerin, 85 Ariz. 242, 249 (1959) (defendants who did not wish to be bound by answer should have requested leave to amend and, by failing to do so, were bound by answer); Bank of Am. Nat’l Tr. & Sav. Ass’n v. Maricopa Cty., 196 Ariz. 173, 176, ¶ 11 (App. 1999) (“Judicial admissions bind a party in a case to the allegations made in its pleading, absent an amendment to the pleading.”).
“Adverse possession” is “an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” A.R.S. § 12-521(A)(1). “Peaceable possession” is “continuous, and not interrupted by an adverse action to recover the estate.” A.R.S. § 12-521(A)(2).
For possession to be adverse, plaintiff has to show that it was “actual, open and notorious, hostile, under a claim of right and . . . exclusive and continuous” during that time. Lewis v. Pleasant Country, Ltd., 173 Ariz. 186, 189 (App. 1992); A.R.S. § 12-525.
Under the Restatement (Second) of Agency § 1 (1958), “Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” Comment e to that section makes it clear that an attorney is an agent of his or her client. Barmat v. John and Jane Doe Partners AD, 155 Ariz. 515, 747 P.2d 1214 (App. 1986) (overruled on other grounds 155 Ariz. 519, 747 P.2d 1218 (1987)).
Allegations Not Evidence
Allegations in filings are not evidence; they are merely “statements of facts which the pleader must prove unless admitted by the opposing party.” Bank of Yuma v. Arrow Const. Co., 106 Ariz. 582, 585 (1971). Evidence, by contrast, consists of “sworn affidavits, stipulated facts, depositions, and oral testimony.” State v. Grounds, 128 Ariz. 14, 15 (1981) (also noting “[a]argument of counsel is not evidence”).
Whether a contract is ambiguous is a question of law and the mere fact that the parties disagree about its meaning does not, in and of itself, create ambiguity. In re Estate of Lamparella, 210 Ariz. 246, 250 ¶ 21, 109 P.3d 959, 963 (App. 2005).
The word “amend” is defined to mean “formally alter (a statute, constitution, motion, etc.) by striking out, inserting, or substituting words.” Eshel v. Commissioner, 142 T.C. 197, 209 (2014) citing Black’s Law Dictionary 94 (9th ed. 2009).
A party may amend its pleading once, as a matter of course, before a responsive pleading is served. Ariz. R. Civ. P. 15(a). After a responsive pleading is served, the court has discretion whether to grant leave to amend, but will allow amendments liberally. Id.; MacCollum v. Perkinson, 185 Ariz. 179, 185, 913 P.2d 1097, 1103 (App. 1996). A motion to amend should be granted by the court “unless the court finds undue delay in the request, bad faith, undue prejudice, or futility in the amendment.” MacCollum, 185 Ariz. at 185, 913 P.2d at 1103; see also Owen v. Superior Court, 133 Ariz. 75, 79, 649 P.2d 278, 282 (1982).
Where party had ample opportunity to determine facts from public (and corporate) records existed, denial based on lack of information was not made in good faith. Washington Nat. Trust Co. v. W. M. Dary Co., 116 Ariz. 171, 568 P. 2d 1068 (1977).
By statute, an appeal may be taken from “a final judgment entered in an action.” A.R.S. § 12-2101(A)(1) (2016). Consistent with this directive, the Arizona Rules of Civil Procedure describe two types of “final judgments:” (1) a “final judgment as to one or more but fewer than all of the claims or parties,” Ariz. R. Civ. P. 54(b), and (2) a final judgment on “all claims and parties,” Ariz. R. Civ. P. 54(c). The former is appealable “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Ariz. R. Civ. P. 54(b). The latter is appealable when “the court states that no further matters remain pending and that the judgment is entered pursuant to Rule 54(c).” Ariz. R. Civ. P. 54(c); see also Madrid v. Avalon Care Ctr.-Chandler, L.L.C., 236 Ariz. 221, 223-24 ¶ 5 (App. 2014) (requiring Ariz. R. Civ. P. 54(c) statement as a jurisdictional prerequisite for an appeal from a final judgment taken under A.R.S. § 12-2101(A)(1)).
Even if the court’s jurisdiction is unchallenged, the court has an independent duty to examine it in every appeal. See Baker v. Bradley, 231 Ariz. 475, ¶ 8, 296 P.3d 1011, 1014 (App. 2013); see also Grand v. Nacchio, 214 Ariz. 9, ¶ 12, 147 P.3d 763, 769 (App. 2006). Appellate jurisdiction is circumscribed by statute, and the Court of Appeals cannot act where jurisdiction is lacking. See Baker, 231 Ariz. 475, ¶ 8, 296 P.3d at 1015; see also State v. Bayardi, 230 Ariz. 195, ¶ 6, 281 P.3d 1063, 1065 (App. 2012) (“If we decide a case beyond our statutory jurisdiction, the decision is of no force and effect.”).
Once the appellant files a notice of appeal, the appeal is perfected. In re Marriage of Johnson and Gravino, 231 Ariz. 228, 230, ¶ 6, 293 P.3d 504, 506 (App. 2012). See also, Ariz. R. Civ.App. P. 8(a) & cmt.
To be in furtherance of the appeal, the court’s actions need to “aid the appeal.” Whitefield Transp., Inc. v. Brooks, 81 Ariz. 136, 141, 302 P.2d 526, 529 (1956). See also, In re Marriage of Johnson and Gravino, 231 Ariz. 228, ¶ 12, 293 P. 3d 504 (2012) (things that hamper, rather than aid, are not in furtherance of an appeal).
“It is the appellant’s obligation to provide all necessary portions of the record on appeal, including transcripts, and we generally presume that any missing portion of the record will support the trial court’s ruling.” See Bee-Gee, Inc. v. Ariz. Dep’t of Econ. Sec., 142 Ariz. 410, 414, 690 P.2d 129, 133 (App. 1984).
A decision becomes moot for purposes of appeal where as a result of a change of circumstances before the appellate decision, action by the reviewing court would have no effect on the parties. Vinson v. Marton & Associates, 159 Ariz. 1, 4, 764 P.2d 736, 739 (App. 1988) (if reviewing court’s action would have no effect on parties, an issue is moot for purposes of appeal) (citing Ariz. State Bd. of Dirs. for Junior Colls. v. Phoenix Union High Sch. Dist., 102 Ariz. 69, 73, 424 P.2d 819, 823 (1967)); Bank of New York Mellon v. De Meo, 227 Ariz. 192, 194, ¶ 8, 254 P.3d 1138, 1140 (App.2011).
Our supreme court has ruled that a single alleged act of negligence can constitute actionable abuse under APSA so long as the following requirements are met:
the negligent act or acts (1) must arise from the relationship of caregiver and recipient, (2) must be closely connected to that relationship, (3) must be linked to the service the caregiver undertook because of the recipient’s incapacity, and (4) must be related to the problem or problems that caused the incapacity.
Estate of McGill ex rel. McGill v. Albrecht, 203 Ariz. 525, ¶ 16, 57 P.3d 384, 389 (2002). “In determining whether the APSA applies to a claim of negligence, ‘[t]he key fact is . . . the nature of the act and its connection to the relationship between the caregiver and the recipient.’” Equihua, 235 Ariz. 504, ¶ 8, 334 P.3d at 197, quoting In re Estate of Wyatt, 232 Ariz. 506, ¶ 14, 307 P.3d 73, 76 (App. 2014), vacated on other grounds by 235 Ariz. 138, 329 P.3d 1040 (2014).
APSA is violated if it is shown that the person in a position of trust and confidence to the vulnerable adult failed to act for the benefit of the vulnerable adult to the same extent as a trustee, A.R.S. § 46-456(A). Davis v. Zlatos, 211 Ariz. 519, 525, 123 P.3d 1156 (App. 2005).
No right to a jury trial under the Arizona Constitution. In re Estate of Newman, 219 Ariz. 260, 196 P.3d 863 (App. 2008) (holding no jury trial right under the Arizona Constitution for A.R.S. § 46-456 claim).
“a financial exploitation APSA claim survives the death of an incapacitated person.” In re Estate of Wyttenbach, 219 Ariz. 120, ¶ 19, 193 P.3d 814 (App. 2008).
“The APSA does not define “impairment,” so we apply the ordinary meaning of the word. Mid Kansas Fed. Sav. & Loan v. Dynamic Dev. Corp., 167 Ariz. 122, 128, 804 P.2d 1310, 1316 (1991). An “impairment” is something that causes a “decrease in strength, value, amount, or quality.” Websters II, New College Dictionary 553 (Houghton Mifflin Co. 2001). Other definitions have defined impairment in terms of injury, deterioration, or lessening. Webster’s Third New International Dictionary 1131 (Unabridged 1993); see also Oxford English Dictionary (Compact Ed. 1971) (“deterioration; injurious lessening or weakening”).” Davis v. Zlatos, 211 Ariz. 519, 525, 123 P.3d 1156 (App. 2005).
“Arbitrary” means “without adequate determining principle; * * * not governed by any fixed rules or standard.” Cedar Bay Constr., Inc., v. Fremont, 50 Ohio St.3d 19, 22, 552 N.E.2d 202, 205 (1990) citing Black’s Law Dictionary (5th Ed.).
“[T]he fundamental prerequisite to arbitration is the existence of an actual agreement or contract to arbitrate.” Schoneberger v. Oelze, 208 Ariz. 591, 595, ¶ 17, 96 P.3d 1078, 1082 (App. 2004), superseded by statute, 2008 Ariz. Sess. Laws, ch. 247, § 16 (2d Reg. Sess.) (current version at A.R.S. § 14-10205 (2012)). Such an agreement is valid and enforceable “except on a ground that exists at law or in equity for the revocation of a contract.” A.R.S. § 12-3006(A).
In Arizona, courts generally resolve doubts about the arbitrability of disputes in favor of arbitration. See Sun Valley Ranch 308 Ltd. P’ship ex rel. Englewood Properties, Inc. v. Robson, 231 Ariz. 287, 292, ¶ 13, 294 P.3d 125, 130 (App. 2012).
It is a well-settled doctrine under the common law that an agreement to submit all disputes which may arise to arbitration cannot oust the court of jurisdiction. Funk v. Funk, 6 Ariz. App. 527, 529, 434 P.2d 529 (1967); Gates v. Arizona Brewing, 54 Ariz. 266, 95 P.2d 49 (1939).
Argument without evidence is proof of nothing. Teamsters Local Union No. 117 v. Washington Dep’t of Corr., 789 F. 3d 979 (9th Cir. 2015) (“Argument without evidence is hollow rhetoric that cannot defeat summary judgment.”); Commonwealth v. Beaudry, 445 Mass. 577, 579-580 (2005) (parties may not utilize assumption as the basis for argument without evidence to support the argument); In re Etablissements Darty et Fils, 759 F.2d 15, 17-18 (Fed.Cir.1985) (argument without evidence is unpersuasive); Franklin County v. Leisure Properties, Ltd., 430 So.2d 475 (Fla. 1st DCA 1983) (argument without evidence in the record is insufficient); O’Brien v. DiGrazia, 544 F.2d 543, 546 n.3 (1st Cir. 1976) (“when a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist.”).
Arguments Made for First Time in Reply Memoranda
Arguments made for the first time in a reply memorandum should not be considered by the court. Mohave Elec. Co-Op., Inc. v. Byers, 189 Ariz. 292, 313, 942 P.2d 451 (App. 1997) citing State v. Oakley, 180 Ariz. 34, 35, 881 P.2d 366, 368 (App. 1994) (holding a court should not consider arguments made for the first time in a reply memorandum); see also Pima County v. INA/Oldfather 4.7 Acres Trust #2292, 145 Ariz. 179, 182, 700 P.2d 877, 880 (App. 1984).
“Arise” has an ordinary meaning. DBT Yuma, L.L.C. v. Yuma Cty. Airport Auth., 238 Ariz. 394, ¶ 9, 361 P.3d 379, 381 (2015). It generally means “[t]o come into being; originate.” The American Heritage Dictionary 95 (5th ed. 2011); see also Arise, Black’s Law Dictionary (10th ed. 2014) (“To originate; to stem (from).”).
Assumption of Risk
Assumption of risk requires the presence of the following elements: “(1) There must be a risk of harm to plaintiff caused by defendant’s conduct or by the condition of the defendant’s land or chattel; (2) the plaintiff must have actual knowledge of the particular risk and appreciate its magnitude; and (3) the plaintiff must voluntarily choose to enter or remain within the area of the risk under circumstances that manifest his willingness to accept that particular risk.” Hildebrand v. Minyard, 16 Ariz. App. 583, 585, 494 P.2d 1328, 1330 (1972).
“[W]here a party has accomplished the result sought in the litigation, fees should be awarded for time spent even on unsuccessful legal theories.” Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 189, 673 P.2d 927, 933 (App. 1983).
The fact that the amount claimed for attorney’s fees may be in excess of the amount in dispute does not mean they are unreasonable. Wagner v. Casteel, 136 Ariz. 29, 663 P.2d 1020 (App. 1983) ($825.00 in attorney’s fees awarded where disputed amount was $318.81).
“A contractual provision for attorneys’ fees will be enforced according to its terms.” Chase Bank of Ariz. v. Acosta, 179 Ariz. 563, 575 (App. 1994); see also Grubb & Ellis Mgmt. Servs., Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 90 ¶ 26 (App. 2006) (noting that contractual attorneys’ fees provision controls to the exclusion of a statute).
A party that succeeds on a contract claim can recover fees on interwoven claims. Ramsey Air Meds, L.L.C. v. Cutter Aviation, Inc., 198 Ariz. 10, 13 ¶ 17 (App. 2000). Claims are interwoven if they are based on the same set of facts and involve common allegations that require the same factual and legal development. Skydive Ariz., Inc. v. Hogue, 238 Ariz. 357, 369 ¶ 52 (App. 2015). See Hiatt v. Shah, 238 Ariz. 579 ¶ 18 (App. 2015) (“When the contract in question is central to the issues of the case, it will suffice as a basis for a fee award.”) (quoting In re Larry’s Apartment, L.L.C., 249 F.3d 832, 836–37 (9th Cir. 2001)).
A party opposing a fee request does not meet its burden “’merely by asserting broad challenges to the [fee] application.’” In re Indenture of Trust Dated Jan. 13, 1964, 235 Ariz. 40, 53, ¶ 47, 326 P.3d 307, 320 (App.2014) (quoting State ex rel. Corbin v. Tocco, 173 Ariz. 587, 594, 845 P.2d 513, 520 (App.1992). “[a] party challenging the amount of fees requested must provide specific references to the record and specify which amount or items are excessive.” In re Indenture of Trust Dated Jan. 13, 1964, 235 Ariz. 40, ¶ 47, 326 P.3d 307, 319-20 (App. 2014).
A charging lien is an attorney’s lien that attaches after a judgment is obtained in the litigation. See State Farm Mutual Insurance Co. v. St. Joseph’s Hospital, 107 Ariz. 498, 501, 489 P.2d 837, 840 (1971). Only an attorney successful in the litigation will have a fund from which to recover fees. In this case, however, the lien arose prior to judgment. Even if the firm were unsuccessful, the assignment would still be extant. We believe this is a difference without a distinction. As with a charging lien, the firm in this case would only have a fund from which to collect its fees if it were successful in the suit on the note. If unsuccessful, the assignment would be worthless. Skarecky & Horenstein v. 3605 N. 36th St., 170 Ariz. 424, 825 P. 2d 949 (1991). See also See Linder v. Lewis, Roca, Scoville and Beauchamp, 85 Ariz. 118, 333 P.2d 286 (1958); Langerman Law Offices, P.A. v. Glen Eagles at Princess Resort, LLC, 220 Ariz. 252, 254, ¶ 9, 204 P.3d 1101, 1103 (App.2009) (recognizing the general rule that an attorney has priority over the client to funds “created by his efforts”); Holly v. State, 199 Ariz. 358, 360-61, ¶¶ 13-18, 18 P.3d 152, 154-55 (App.2001) (holding that an attorney’s right to payment from a fund created through his efforts has priority over the State’s rights to statutory setoffs for inmate costs).
The attorney-client privilege is codified at A.R.S. § 12-2234.
In Udall, Law of Evidence (3rd ed. 1991), it is written:
The privilege extends only to communications made by the client in confidence for purposes of obtaining legal advice. Ordinarily, the fact of consultation, the identity of the client, the fees charged, the dates and places of consultation, and similar matters are outside the coverage of the privilege. Similarly, if the lawyer is consulted for non-legal advice, communications to him will not be privileged. Finally, the presence of persons unnecessary to the consultation will show that confidentiality was not intended and prevent the privilege from attaching. Udall, supra at §74, pp140-141, copy attached at Tab 5.
In State v. Macumber, 112 Ariz. 569, 571, 544 P.2d 1084 (1976), the Arizona Supreme Court held:
ARS § 13-1802 provides that an attorney shall not be examined as to any communication made to him by his client without the consent of his client. The privilege is that of the client and only he or someone authorized by law to do so on his behalf may claim it. State v. Gause, 107 Ariz. 491, 489 P.2d 830 (1971), vacated on other grounds, 409 U.S. 815, 93 S.Ct. 192, 34 L.Ed.2d 71. However, in the absence of the privileged individual, the privilege may be asserted by another including the trial court itself. McCormick’s Handbook of the Law of Evidence (Cleary, 2nd ed. 1972), § 92.
The privilege does not terminate with death. Udall, supra, at § 91; McCormick, Evidence (1954), § 98. It has been commonly suspended only in cases where the communication would be logically thought to further the interests of the deceased such as a will, Udall, supra, McCormick, supra . . . (Emphasis supplied).
To authenticate a document, photograph, or videotape under Fed. R. Evid. 901(a), courts “do not require absolute certainty in authentication, but rather ‘evidence sufficient to support a finding that the matter in question is what its proponent claims.’” United States v. Mojica, 746 F.2d 242 (5th Cir. 1984) (quoting Rule 901). The government’s “burden of proof for authentication is slight.” Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 927 (3d Cir. 1986); see also Pasquotank Action Council, Inc. v. City of Virginia Beach, 909 F.Supp. 376, 384 (E.D. Va. (1995) (same); United States v. Perez-Montanez, 202 F.3d 434, 440 n.2 (1st Cir. 2000) (only a “‘reasonable likelihood’ that proffered evidence is what it purports to be need to shown to authenticate it.”); United States v. Pluta, 176 F.3d 43, 49 (2d Cir. 1999) (“The burden of authentication does not require proo[f] …. beyond any doubt that the evidence is what it purports to be.”)’ Siam Numhong Products Co. Ltd. V. Eastimpex, 866 F.Supp. 445, 451 (N.D. Cal. 1994) (“The burden of proof for authentication of a document is slight and circumstantial evidence suffices.”).
Authority Not Cited
Failure to provide any legal authority his assertions waives them. See ARCAP 13(a)(7) (stating appellant’s argument for each issue presented for review must contain “citations of legal authorities”); In re U.S. Currency in Amount of $26,980.00, 199 Ariz. 291, 299, ¶ 28, 18 P.3d 85, 93 (App. 2000) (declining to address a “bald assertion [that] is offered without elaboration or citation to any constitutional provisions or legal authority”); Watahomigie v. Ariz. Bd. of Water Quality Appeals, 181 Ariz. 20, 26, 887 P.2d 550, 556 (App. 1994) (declining to consider issues not properly briefed) (citation omitted).
Authority – Persuasive
Arizona courts may look to cases from other jurisdictions as persuasive authority. See, e.g., Baseline Fin. Servs. v. Madison, 229 Ariz. 543, ¶ 13, 278 P.3d 321, 323 (App.2012).
One cannot, however, avoid the consequences of conduct from being expected or intended merely by choosing to ignore that which is obvious. Broderick Inv. Co. v. Hartford Acc. & Indem. Co., 954 F.2d 601 (C.A.10 (Colo.), 1992).
The tort of bad faith arises when an insurance company intentionally denies coverage or delays or fails to fully pay a claim without a reasonable basis for doing so. Nobel v. Nat’l Am. Life Ins. Co., 128 Ariz. 188, 190, 624 P.2d 866, 868 (1981).
Under Arizona law, a bailment is defined, in part, as the bailee having “sole custody and control” of the property in question. Blair v. Saguaro Lake Dev. Co., 17 Ariz. App. 72, 74 (1972) (emphasis added; citation omitted).
To constitute a bailment there must be a delivery by the bailor and acceptance by the bailee of the subject matter of the bailment. It must be placed in the bailee’s possession, actual or constructive. There must be such a full transfer, actual or constructive, of the property to the bailee as to exclude the possession of the owner and all other persons and [g]ive the bailee for the time being the sole custody and control thereof. Blair v. Saguaro Lake Dev. Co., 17 Ariz. App. 72, 74 (1972) (internal citations omitted) (quoting Freeman v. Myers Automobile Service, Co., 40 S.E.2d 365, 366 (N.C. 1946)).
“In a Chapter 7 bankruptcy proceeding, also called a ‘liquidation,’ a bankruptcy trustee immediately gathers up and sells all of a debtor’s nonexempt assets in the estate, using the proceeds to repay creditors in the order of the priority of their claims.” In re Blendheim, 803 F.3d 477, 485 (9th Cir. 2015). After meeting the bankruptcy conditions, the court may discharge certain debts, releasing the debtor from personal liability. Id.; see also 11 U.S.C. § 727(b). Chapter 7 offers debtors the chance to “make a fresh start” with “a clean break” from their financial past. Harris v. Viegelahn, 135 S.Ct. 1829, 1835 (2015).
Alternatively, a Chapter 13 proceeding, or “’reorganization,’ is designed to encourage financially overextended debtors to use current and future income to repay creditors in part, or in whole.” Blendheim, 803 F.3d at 485. The Chapter 13 debtor proposes a plan for the repayment of his debts, In re Schaitz, 913 F.2d 452, 453 (7th Cir. 1990), giving notice of the proposed plan to creditors, who may object. 11 U.S.C. § 1324. Only individual debtors with “regular income” are eligible for Chapter 13 reorganization. 11 U.S.C. §§ 101(30), 109(e). “Unlike Chapter 7 proceedings, where a debtor’s nonexempt assets are sold to pay creditors, Chapter 13 permits debtors to keep assets . . . so long as they make the required payments . . . under their confirmed plan of reorganization.” Blendheim, 803 F.3d at 485.
If the Debtors believe the debt was discharged through their bankruptcy, they may file a proceeding in the Bankruptcy Court to enforce the discharge of the debt against the creditor. See 28 U.S.C. § 157(b)(1) (authorizing bankruptcy courts to “hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11”); 28 U.S.C. § 157(b)(2)(I),(J) (providing that “core” proceedings include determinations as to the “dischargeability of particular debts” and “objections to discharges”); In re Lenke, 249 B.R. 1, 8 (Bankr. Ariz. 2000) (holding that the “Ninth Circuit’s reliance on bankruptcy courts’ ‘plenary’ power over ‘core’ proceedings applies . . . to discharge determinations” under 28 U.S.C. § 157(b)(2)(I) and (J)); In re Pavelich, 229 B.R. 777, 782 (B.A.P. 9th Cir. 1999) (“Regardless of what a state court may do with respect to the personal liability of a discharged debtor, the bankruptcy court has jurisdiction to enforce the statutory discharge injunction.”).
“A bear well painted and drawn to the life is yet the picture of a bear, although the painter may omit to write over it, “this is the bear.” It is no more necessary to put the name of the action in a good declaration than to write Bear over a good picture of that beast.” Prewitt v. Clayton, 5 T.B.Mon. 4, 2 Ky. 4 (App. 1827) cited in Gunnell v. Ariz. Pub. Serv. Co., 202 Ariz. 388, 395, ¶ 26, 46 P.3d 399, 406 (2002).
A trust “beneficiary” is one with a financial interest in the trust. See A.R.S. § 14-10103(2)(a), which defines “beneficiary” as one with “a present or future beneficial interest in a trust, vested or contingent.
Evidence tending to show the motive of a witness to testify is relevant and admissible to show his bias and prejudice as a witness. Rule 608(a), Arizona Rules of Evidence. A witness’ bias and prejudice are legitimate areas of inquiry at trial. State v. Uriarte, 194 Ariz. 275, 280, 981 P.2d 575, 580 (App. 1998); State v. Dunlap, 187 Ariz. 441, 456, 930 P.2d 518, 533 (App. 1996) (holding that improper limitation on a defendant’s right to examine witness’ bias and prejudice was reversible error); accord Barsema v. Susong, 156 Ariz. 309, 751 P.2d 969 (1988) (witness’ bias is relevant evidence).
Breach of Contract
An enforceable contract is formed through an offer, an acceptance, consideration, and sufficient specification of terms. See K-Line Builders, Inc., v. First Fed. Sav. & Loan Ass’n, 139 Ariz. 209, 212, 677 P.2d 1317, 1320 (App. 1983). An offer is “. . . a manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Restatement (Second) of Contracts § 24. An acceptance is “. . . a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.” Restatement (Second) of Contracts § 50. Consideration is a benefit to the promisor or a loss or detriment to the promisee, and there is no consideration for a promise where no benefit is conferred on the promisor or a detriment suffered by the promisee. Federal Rubber Company v. Pruett, 55 Ariz. 76, 98 P.2d 849 (1940). A promise for a promise is adequate consideration. Tucson Federal Savings & Loan Association v. Aetna Investment Corporation, 74 Ariz. 163, 245 P.2d 423 (1952); Lessner Dental Laboratories, Inc. v. Kidney, 16 Ariz. App. 159, 492 P.2d 39 (1971).
Under Arizona law, “the victim of a material or total breach is excused from further performance” under the contract, while “the victim of a minor or partial breach must continue his own performance, while collecting damages for whatever loss the minor breach has caused him.” Zancanaro v. Cross, 85 Ariz. 394, 400, 339 P.2d 746 (1959).
Buffalo the Court
“When counsel represent that something cleanly rejected by the Supreme Court is governing law, then it is appropriate to conclude that counsel are not engaged in trying to change the law; counsel either are trying to buffalo the court or have not done their homework.” Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1082 (7th Cir. 1987).
One who signs a contract without reading it cannot complaint about it. Nanini v. Nanini, 166 Ariz. 287, 291, 802 P.2d 438 (App. 1990) (“[o]ne who has had an opportunity to read a contract before signing, but signs before reading, cannot later plead lack of understanding or that the contract misled him”); Shapiro v. Bache & Co., Inc., 116 Ariz. 325, 328, 569 P.2d 267 (App. 1977) (one cannot be heard to complain that he did not understand a legal document which he signed and which he had an opportunity to read) citing Hofmann Company v. Meisner, 17 Ariz. App. 263, 497 P.2d 83 (1972); Apolito v. Johnson, 3 Ariz. App. 232, 413 P.2d 291 (1966).
Just as a person cannot complain about a contract they sign without reading, a person cannot complain about discovery they chose not to do. A “party cannot complain about a result he caused.” M. Udall & J. Livermore, Law of Evidence § 11 at 11 (2d ed. 1982); State v. Lindsey, 149 Ariz. 472, 477, 720 P.2d 73, 78 (1986). “A batter who is thrown out at first base cannot complain that second base is missing.” St. Joseph’s Hosp. v. Arizona Health Care Cost Containment Sys., 185 Ariz. 309, 312, 916 P.2d 499, 502 (App. 1996).
“Capricious” is defined as “apt to change suddenly; freakish; whimsical; humorsome.” United States v. Carmack, 329 U. S. 230, fn. 14 (1946).
“‘[C]are’ is ‘generally defined as charge, supervision, management: responsibility for or attention to safety and wellbeing.’” In re Estate of Wyatt, 232 Ariz. 506, ¶ 8, 307 P.3d 73, 75 (App.2013).
“Cattle rustlers do not as a rule invite spectators to witness their acts.” Holder v. State, 31 Ariz. 357, 253 P. 629 (1927).
Cause of Action
The United States Supreme Court, in Baltimore Steamship Co. v. Phillips, 274 U.S. 316 (1927) said that a cause of action is a violation of one right by a single legal wrong. In Cope v. Anderson, 331 US 461 (1947), the U.S. Supreme Court said that a “cause of action is the fact or combination of facts which gives rise to a right of action, the existence of which affords a party a right to judicial interference in his behalf. In Unexcelled Chemical Corp. v. U.S., 345 US 59 (1950) the Court said that a “cause of action is created when there is a breach of duty owed the plaintiff.”) See also, Rhodes v. Jones, 351 F. 2d 884 (8th Cir. 1965) (“A “cause of action” is a situation or state of facts which entitles a party to sustain an action and gives him the right to seek judicial interference in his behalf.”).
State courts have similarly defined a cause of action. See Colvig v. RKO General, Inc., 232 Cal. App. 2d 56, 42 Cal. Rptr. 473 (1965) (“The essence of a cause of action is the existence of a primary right and one violation of that right, i.e., it arises out of an antecedent primary right and corresponding duty, and a breach of such primary right and duty by the person upon whom the duty rests.); see also, Tortorello v. Reinfeld, 6 N.J. 58, 65 (1950).
A “claim for relief,” although technically not the same as a “cause of action,” Reese v. De Mund, 74 Ariz. 140, 245 P.2d 284 (1952), is a statement of the facts which demonstrate that the plaintiff is entitled to a remedy for a wrong committed by a defendant. In re Cassidy’s Estate, 77 Ariz. 288, 270 P.2d 1079 (1954).
A “”chattel” is defined as “[m]ovable or transferable property; personal property; esp., a physical object capable of manual delivery and not the subject matter of real property.” Ellsworth Land & Livestock, Inc. v. Bush, 224 Ariz. 542, 233 P.3d 655 ( App.2010) citing Black’s Law Dictionary 251 (8th ed. 2004). A chattel is “moveable personal property.” Strawberry Water Co. V. Paulsen, 220 Ariz. 401, 408, 207 P.3d 654 (App. 2008).
“For a civil conspiracy to occur two or more people must agree to accomplish an unlawful purpose or to accomplish a lawful object by unlawful means, causing damages.” Baker v. Stewart Title & Trust of Phoenix, 197 Ariz. 535, 542, 5 P2d 249, 256 ¶30 (App. 2000) quoting Roland v. Union Hills Country Club, 157 Ariz. 301, 306, 757 P.2d 105, 110 (1988); see also Restatement (Second) of Torts § 876. “A mere agreement to do a wrong imposes no liability; an agreement plus a wrongful act may result in liability.” Baker at 542, 5 P2d at 256 (citations omitted). In short, liability for civil conspiracy requires that two or more individuals agree and thereupon accomplish “an underlying tort which the alleged conspirators agreed to commit.” Id. at 545, 5 P.3d at 259.
A “claim” is defined as including “[t]he assertion of an existing right; any right to payment or to an equitable remedy, even if contingent or provisional.” Black’s Law Dictionary (10th ed. 2014).
The doctrine of claim preclusion, formerly known as res judicata, bars a claim “when a former judgment on the merits was rendered by a court of competent jurisdiction and the matter now in issue between the same parties or their privities was, or might have been, determined in the former action.” Hall v. Lalli, 194 Ariz. 54, ¶7, 977 P.2d 776, 779 (1999); see also Aldrich & Steinberger v. Martin, 172 Ariz. 445, 448, 837 P.2d 1180, 1183 (App. 1992).
Clerk of Court
There is no authority that permits a clerk of the superior court to reject an improperly formatted or deficient pleading. A complaint was “constructively filed” for purposes of the statute of limitations when a party presented it to the clerk of the court, even though the clerk returned it because it was not in the required format. See Rowland v. Kellogg Brown & Root, Inc., 210 Ariz. 530, 534, ¶ 16, 115 P.3d 124, 128 (App. 2005); see also Whittaker Corp. v. Estate of King, 25 Ariz. App. 356, 357, 543 P.2d 477, 478 (1975) (reversing trial court’s order granting motion to dismiss complaint as untimely and holding complaint was constructively filed when first presented to the superior court clerk, even though clerk returned the complaint for failure to comply with a local rule).
One may not close one’s eyes and then complain about that which one cannot see. Keck v. Brookfield, 2 Ariz. App. 424, 409 P. 2d 583 (1965) (“The law does not permit a person to close his eyes to facts that he cannot otherwise fail to see for the purpose of remaining in ignorance of them and thus acquire an unjust advantage”); School District No. 69 of Maricopa County v. Altherr, 10 Ariz. App. 333, 339, 458 P.2d 537, 543 (1969) (one cannot close his eyes to a situation and then be heard to complain); Hansen v. Stoll, 130 Ariz. 454, 636 P.2d 1236 (App. 1981) (“In other words, a person cannot close his eyes to the obvious truth, yet still claim lack of knowledge.”); Rhoads v. Harvey Publications, Inc., 145 Ariz. 142, 700 P.2d 840 (App. 1984) (“A man should not be allowed to close his eyes to facts readily observable by ordinary attention, and maintain for his own advantage the position of ignorance”).
A defendant may prevent a plaintiff from relitigating an issue if “(1) the issue was actually litigated in the previous proceeding, (2) the parties had a full and fair opportunity and motive to litigate the issue, (3) a valid and final decision on the merits was entered, [and] (4) resolution of the issue was essential to the decision.” Campbell v. SZL Props., Ltd., 204 Ariz. 221, 223, ¶ 9, 62 P.3d 966, 968 (App. 2003).
Simply stated, the collateral source rule requires that:
Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable.’ Restatement (Second) of Torts § 902(2) (1979). See also, Michael v. Cole, 122 Ariz. 450, 595 P.2d 995 (1979). Taylor v. Southern Pac. Transp. Co., 130 Ariz. 516, 519, 637 P.2d 726 (1981).
Collusion is an abuse of process. Nelson v. Jacobsen, 669 P.2d 1207 (Utah, 1983) (citing Leigh Furniture & Carpet Co. v. Isom, 657 P.2d at 308-09; W. Prosser, Handbook of the Law of Torts §§ 120, 121 (4th ed. 1971). See also, Carlson v. Zellaha, 240 Neb. 432, 455, 482 N.W. 2d 281, 283 (1992) (citing Dickerman v. Northern Trust Co., 176 U.S. 181, 20 S.Ct. 311, 44 L.Ed. 423 (1900)).
Collusion is an abuse of process: Fickett v. Superior Court of Pima County, 27 Ariz. App. 793, 794-95, 558 P.2d 988, 989-90 (1976); Mustang Equipment, Inc. v. Welch, 115 Ariz. 206, 564 P.2d 895 (1977); Southern Union Co. v. Southwest Gas Corp., 165 F.Supp.2d 1010, 1016 (D.Ariz.2001) (“[A]n attorney may be liable to a third person for acts arising out of the attorney’s representation of a client, if the attorney is guilty of `fraud, collusion, or a malicious or [intentional] tortious act.’”) (quoting Macke Laundry Serv. Ltd. P’ship v. Jetz Serv. Co., 931 S.W.2d 166, 177 (Mo.App.1996)) (citations omitted and alteration in original); Chalpin v. Snyder, 220 Ariz. 413, 207 P.3d 666, (App.2008).
In Arizona there is a presumption of mental competency. Golleher v. Horton, 148 Ariz. 537, 541, 715 P.2d 1225, 1229 (App. 1985); In re Estate of Thomas, 105 Ariz. 186, 189, 461 P.2d 484, 487 (1969), Stewart v. Woodruff, 19 Ariz. App. 190, 194, 505 P.2d 1081, 1085 (1973). However, in order to invalidate an instrument, mental incompetency must exist at the time of the execution of the instrument. See Estate of Vermeersch, 109 Ariz. at 127, 506 P.2d at 258. See also Estate of Head, 94 N.M. at 659, 615 P.2d at 274. In Arizona there is a presumption of competency which continues despite a subsequent period of incompetency since such persons may have lucid intervals. See Estate of Silva, 105 Ariz. 243, 247, 462 P.2d 792, 796 (1969).
Restatement (Second) of Contracts § 224 (1981) provides:
A condition is an event, not certain to occur, which must occur, unless its nonoccurrence is excused, before performance under a contract becomes due.
Consideration is a benefit to the promisor or a loss or detriment to the promisee. K-Line Builders, Inc. v. First Federal Savings & Loan Association, 139 Ariz. 209, 677 P.2d 1317 (App.1983). A.R.S. § 44-121 states that “Every contract in writing imports a consideration.” Dunlap v. Fort Mohave Farms, Inc., 89 Ariz. 387, 363 P.2d 194 (1961).
It is also a general rule that a promise for a promise is adequate consideration. Tucson Federal Savings and Loan Ass’n v. Aetna Investment Corp., 74 Ariz. 163, 245 P.2d 423 (1952); Gertz v. Selin, 11 Ariz. App. 495, 466 P.2d 46 (1970); 17 C.J.S. Contracts § 97; 17 Am.Jur.2d, Contracts § 104.
In civil actions involving a common issue of fact or law, Arizona Rule of Civil Procedure 42(a) permits a court to “order a joint hearing or trial of any or all the matters in issue in the actions.” Arpaio v. Baca, 177 P.3d 312, 217 Ariz. 570 (Ariz. App., 2008).
Constitutional right to retain counsel
The right to counsel in civil matters “includes the right to choose the lawyer who will provide that representation.” Texas Catastrophe Property Ins. Ass’n v. Morales, 975 F.2d 1178 (5th Cir. 1992) (citing McCuin, 714 F.2d at 1257.). See also, Virginia v. Reinhard, 568 F. 3d 110 (4th Cir. 2009).
Due process requires notice and hearing. “What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law.” Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932) (Emphasis added).
Simply put, “[t]he constructive trust, like its counterpart remedies ‘at law,’ is a remedy for unjust enrichment.” 1 Dobbs, Law of Remedies § 4.3(2), p. 597 (2d ed.1993); see Restatement of Restitution: Quasi Contracts and Constructive Trusts § 160, comment a (1936) (Restatement of Restitution). This view is widely and uniformly accepted. Crosby v. Bowater, Inc. Retirement Plan, 382 F.3d 587, 594 (6th Cir.2004) (constructive trust is an equitable remedy, not a claim in its own right); Horattas v. Citigroup Financial Markets Inc., 532 F.Supp.2d 891, 897 (W.D.Mich.2007) (same); In re Amcast Indus. Corp., 365 B.R. 91, 123 (Bankr.S.D.Ohio 2007) (“requests for an accounting and imposition of a constructive trust do not describe independent causes of action”); Gulf States Steel, Inc. v. Lipton, 765 F.Supp. 696, 704 (N.D.Ala.1990) (“the court’s research reveals no case in any jurisdiction [holding] that constructive trust constitutes a cause of action”); Fujisawa Pharmaceutical, Co., Ltd. v. Kapoor, 16 F.Supp.2d 941, 952 (N.D.Ill. 1998) (constructive trust is a remedy, not a claim; remedy may be requested if plaintiff prevails on claims for which constructive trust is appropriate remedy); Radenhausen v. Doss, 819 So.2d 616, 620 (Ala.2001) (“The [defendants] correctly assert that a constructive trust is an equitable remedy; and a request to impose such a trust is not a cause of action that will stand independent of some wrongdoing.”). Nelson v. Nelson, 205 P. 3d 715 (Kan. 2009).
Consumer Fraud Act
A.R.S. § 44-1522 provides a private cause of action for misrepresentations, concealment, or omissions of material fact made “in connection with the sale or advertisement of merchandise.” Dunlap v. Jimmy GMC, 136 Ariz. 338, 342, 666 P.2d 83, 87 (App. 1983) (stating that the Act “provides an injured consumer with an implied private cause of action against a violator of the act”). “Merchandise” is defined as including real estate. A.R.S. § 44-1521(5). “The clear intent of this provision is to protect unwary buyers from unscrupulous sellers.” Sutter Home Winery, Inc. v. Vintage Selections, Ltd., 971 F.2d 401, 407 (9th Cir. 1992). The Act provides a remedy for injured consumers “to counteract the disproportionate bargaining power often present in consumer transactions.” Waste Mfg. & Leasing Corp. v. Hambicki, 183 Ariz. 84, 88, 900 P.2d 1220, 1224 (App. 1995).
“It is a fundamental rule in the interpretation of contracts that the court must ascertain and give effect to the intention of the parties at the time the contract was made if at all possible. Employer’s Liability Assurance Co. v. Lunt, 82 Ariz. 320, 313 P.2d 393 (1957).” Polk v. Koerner, 111 Ariz. 493, 495, 533 P.2d 660 (1975)
“The proper proof is a certified copy of the license, which must have been issued and in effect at the time the contract sued upon was entered into and at the time when the cause of action arose.” Lee v. Molinsky, 77 Ariz. 184, 187, 268 P.2d 975 (1954).
“[P]arties cannot thwart the purposes of Rule 56 by creating issues of fact through affidavits that contradict their own depositions.” Wright v. Hills, 161 Ariz. 583, 588, 780 P.2d 416, 421 (App. 1989). Accordingly, “[a] party’s affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment.” Id. at 587, 780 P.2d at 420. MacLean v. State, 195 Ariz. 235, 986 P.2d 903 (App. 1999). See also, Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990) (stating that affidavits which “tend to contradict the affiant’s sworn testimony at deposition [are] insufficient to withstand a motion for summary judgment.”).
Arizona recognizes equitable contribution. Fischer v. Sommer, 160 Ariz. 530, 774 P.2d 834 (App. 1989); Freeman v. Sorchych, 226 Ariz. 242, 245 P.3d 927 (App. 2011), review denied (Aug. 31, 2011).
Contribution rests not on contract, but on general principles of equity. It is a rule “founded on natural justice, and is recognized in every cultivated system of jurisprudence.” G. Bispham, Principles of Equity (3d ed. 1882) at 397, quoting Chancellor Kent in Cheesebrough v. Millard, 1 Johns Ch. 412. See also 4 Pomeroy’s Equity Jurisprudence § 1418 (contribution rests upon the maxim, Equality is equity); § 1419.
“Control or right to control determines liability.” Tarron v. Bowen Machine & Fabricating, 222 Ariz. 160, 171, 213 P.3d 309 (App. 2009); Lee Moor Contracting Co. v. Blanton, 49 Ariz. 130, 136, 65 P.2d 35, 37-38 (1937) (“Control or right to control determines liability.”).
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