The Judicial Nomination
Statute Is Unconstitutional.
Arizona’s Constitution requires
the Commission on Appellate
Court Appointments to submit
“not less than three” nominees for
a judicial vacancy to the governor.
Ariz. Const. art. 6, §§ 36-37.
The legislature recently enacted
H.B. 2600, which requires the
Commission to submit “at least
five” nominees to the governor,
unless an applicant is rejected
by a two-thirds vote. H.B. 2600
directly conflicts with Arizona’s
Constitution. The requirement
to submit at least five nominees
fundamentally changes the selection process set forth in the
Constitution, which requires nomination of no fewer than three.
Dobson v. Arizona, CV-13-0225-
SA, 9/13/13.
COURT OF APPEALS CIVIL MATTERS
Negligence Claims Are
Barred When Title
Commitment Fails to Disclose
Encumbrances, but a
Continuation of Insurance
Provision in a Title Policy Does
Not Preclude a Claim for
Damages Made After the
Property Is Sold. A.R.S. § 20-
1562 makes a clear distinction
between “abstract of title,” which
is intended to be relied upon, and
a “title commitment,” which is
merely a description of the condi-
tions under which the title compa-
ny will issue a title insurance policy.
By statute, the title commitment is
not a representation that the title is
unencumbered, but rather a prom-
ise to issue a policy indemnifying
the buyer for any encumbrances
the title company failed to discov-
er. Consequently, a party may not
assert a negligence claim against a
title company for failure to include
an encumbrance in the title com-
mitment. A “continuation of cov-
erage” clause in a title policy does
not put a restriction on when
a party may assert a claim under
the title policy, but rather only on
the date when the policy would
indemnify for a claimed injury.
Consequently, a title claim may be
made after the insured property is
sold. Centennial Dev. Group, LLC
v. Lawyer’s Title Ins. Corp., 1 CA-
CV 12-0080, 9/19/13.
Determinations of a Board
of Directors of a County
Improvement District Made at a
Hearing Held Pursuant to
A.R.S. § 48-924(D) Are Quasi-Judicial and Have Preclusive
Effect. The statute governing
county improvement districts
authorizes a district’s board of
directors to conduct a hearing if a
contractor’s work “is not prosecuted with diligence.” A.R.S. § 48-
924(D). At the hearing, a board
“may prescribe such terms and conditions as it deems proper before
permitting the contractor to continue with the work” or may “hold
the contractor in default and make
demand on the surety.” A board’s
determinations are “final and conclusive” and “may be reviewed only
by a special action.” An adjudicative
determination by an administrative
tribunal is entitled to the same res
judicata effect as a judgment of
a court if it entails the essential
elements of adjudication. A. Miner
Contracting, Inc. v. Toho-Tolani
County Improvement Dist., 1 CA-CV 10-0665, 9/19/13.
Parties Cannot Contractually
Waive Their Statutory Rights to
a Judicial Determination of a
Property’s Fair Market Value
Under A.R.S. § 33-814(A).
Arizona’s Enabling Act requires
that any sale or lease of trust lands
be made to the highest and best
bidder at a public auction. This
requirement is incorporated into
the Arizona Constitution. A disposition that is not made in substantial conformity with this requirement is null and void. Arizona’s
statutory process for awarding state
SUPREME COURT CIVIL MATTERS
Legislature’s Budget Measure
Violated Voter Protection Act by
Repealing or Amending Voter-Approved Statute Requiring
Certain Increases to School
Funding. Article 4, Part 1, Section
1( 1) of the Arizona Constitution
reserves for the people the “power
to propose laws and amendments
to the constitution and to enact or
reject such laws and amendments
at the polls, independently of the
legislature.” The people exercise
this power through the initiative
and referendum process. Under the
Voter Protection Act (“VPA”), the
legislature may not repeal a voter-approved law and may only amend
the law if it “furthers the purposes”
of the law and receives a three-fourths super-majority vote in the
legislature. ARIZ. CONST. art. 4, pt.
1, § 1( 6), ( 14). Public schools
receive funding based on a statutory formula which includes calculation of a “revenue control limit.”
The “revenue control limit” consists of the “base level” support for
each school and the “
transportation support level.” In 2000, voters
approved Proposition 301. Among
other things, Prop 301 required
the legislature to make annual inflation adjustments to “increase the
base level or other components of
the revenue control limit” by certain amounts. Proposition 301/
§ 15-901.01 is constitutional as
there is nothing in the constitution
that would preclude the voters
from enacting such a provision.
H.B. 2008 also implicitly repealed
or amended § 15-901.01 because
the two provisions could not “be
harmonized.” H.B. 2008 violates
the VPA. Cave Creek Unified
Sch. Dist. v. Ducey, CV-13-0039-
PR, 9/26/13.
APPELLATE HIGHLIGHTS
by Thomas L. Hudson (civil), Patrick C. Coppen (criminal), and James M. Susa (tax). Family Law summaries are prepared by the Case Law
Update Committee of the Family Law Section of the State Bar of Arizona.
trust lands in Arizona complies
with the Enabling Act. Those procedures satisfy the Act’s highest and
best bidder requirement under the
Enabling Act because they include
an assessment of who is willing
to pay the highest rent. WildEarth
Guardians, Inc. v. Knight, 1 CA-CV 12-0338, 9/12/13.
A Creditor May Sue a
Guarantor Without a Prior
Trustee’s Sale, and Arizona’s
Anti-Deficiency Statute Only
Applies After a Trustee’s Sale of
a Qualifying Property Under
A.R.S. § 33-814(G). A.R.S. § 33-
814(B) provides that any action
must be brought within 90 days of
a trustee’s sale. However, because
§ 33-814(C) provides that the
balance due on a contract may be
enforced “in an action regardless
of whether a trustee’s sale is held,”
it is not necessary for a creditor to
first hold a trustee’s sale. Under
Arizona’s anti-deficiency statute,
A.R.S. § 33-814(G), a creditor can
elect to forgo foreclosure and sue
directly on the note, except in certain cases involving mortgages and
deeds of trust. The statute does not
apply to a lender who has not foreclosed on qualifying collateral. First
Credit Union v. Courtney, 2 CA-CV 2013-0005, 9/12/13.
When a Patient Gives
Informed Consent to a Medical
Procedure, the Patient May Not
Assert a Claim for Medical
Battery Based on the Doctor’s
Failure to Disclose Information
Unrelated to the Procedure.
Although claims involving lack of
consent, i.e., the doctor’s failure to
operate within the limits of the
patient’s consent, may be brought
as battery actions, true “informed
consent” claims, i.e., those involving the doctor’s obligation to
provide information, must be
brought as negligence actions.
Consequently, if a patient consents
to a medical procedure that is fully
explained, a claim that the doctor
should have disclosed his drug
dependency may only be pursued
under a negligence theory. Rice v.
Brakel, 2 CA-CV 2012-0118,
9/12/13.
Thomas L. Hudson is a member at Osborn Maledon PA, where his practice focuses
on civil appeals and appellate consulting with trial lawyers. He can be reached at
thudson@omlaw.com, and is ably assisted with this column by Osborn Maledon PA’s
appellate group, which maintains azapp.com. AzAPP contributors include Sharad H.
Desai, Chelsea S. Durkin, Joshua Ernst, Eric M. Fraser, Brandon A. Hale,
Shane M. Ham, Kathleen E. Brody, Grace E. Rebling, James K. Rogers and
Joseph N. Roth.
Patrick C. Coppen is a sole practitioner in Tucson.
James M. Susa is with Snell & Wilmer LLP in Tucson.