Arizona Attorney - September 2017

SUPREME COURT CIVIL MAT TERS

An actionable claim for abuse of a vulnerable adult under the Adult Protective Services Act requires proof that: ( 1) a vulnerable adult, ( 2) has suffered an injury, ( 3) caused by abuse, ( 4) from a caregiver. From 2002 to 2017, Arizona courts followed a four-part test for an actionable claim under the Adult Protective Services Act, as set forth in Estate of McGill ex rel. McGill v. Albrecht, 203 Ariz. 525 (2002). That McGill test proved to be difficult to apply. The Court therefore expressly disapproved of the McGill test and instead articulated a different four-part test more firmly rooted in the statutory text of the Act. Delgado v. Manor Care of Tucson AZ LLC, CV-16-0178-PR, 6/20/17.

A patient owes a duty of reasonable care to a caregiver, and the common-law firefighter’s rule does not generally bar caregiver negligence claims. A plaintiff bringing a negligence claim must show, among other things, that the defendant owes a duty of reasonable care to the plaintiff. Under Arizona law, that duty may arise from the direct relationship of the parties. In the context of a patient and a caregiver, the relationship creates a duty of reasonable care between the parties, including a duty of care on the part of the patient. Moreover, a negligence claim brought by a caregiver is not generally barred by the so-called firefighter’s rule, which bars certain negligence claims brought by public-safety employees who are injured while performing the duties of a public-safety professional. Sanders v. Alger, CV-16-0181-PR,

6/1/17.

The $10,000 cap on attorneys’ fees in A.R.S. § 12-348(E) ( 4) does not apply to an attorneys’ fees award under A.R.S. § 12-348.01. A.R.S. § 12-348(E) ( 4) provides for an award of attorneys’ fees “against a city, town or county as provided in this section,” but caps the award at $10,000. A.R.S. § 12-348.01 provides that “[n]otwithstanding [A.R.S. §] 12- 348,” if a county “files a lawsuit against” a state agency, “the court shall award reasonable attorney fees to the successful party in the action.” Nothing in the statutes indicates that the $10,000 cap in § 12-348(E)( 4) applies to awards under § 12-348.01. Mohave County v. Ariz. Dep’t Water Res., 1 CA-CV 16-0259, 6/20/17.

Arizona’s public postsecond-ary schools may not offer resident tuition to students benefiting from the federal Deferred Action for Childhood Arrivals program. The federal government established the Deferred Action for Childhood Arrivals (DACA) program, under which certain people who entered the United States as children are entitled to remain in the United States lawfully. The Maricopa County Community College District offered resident tuition to DACA recipients. Although DACA recipients are considered “lawfully present” for some purposes and are permitted to remain in the United States lawfully, Congress has not defined

COURT OF APPEALS CIVIL MATTERS

Under the doctrine of replacement, a new mortgage retains the priority of a senior mortgage only to the extent new proceeds are used toward repayment of the senior mortgage. In general, an earlier-recorded lien, such as a mortgage or note secured by a deed of trust, has priority over a later-recorded lien. Under the doctrine of replacement, however, a new lien retains the same priority as a senior lien released in the same transaction (i.e., a refinancing) to the extent of the balance owed on the senior lien. Under the doctrine of equitable subrogation, when a new lender applies funds to fully discharge an older loan, the new lender is substituted into the position of the older lender, but only if the more senior loan is fully discharged, or the new lender negotiates a full settlement of the obligation for less than face value. Applying the doctrines together, if a new lender in a refinancing uses proceeds to only partially satisfy another senior loan, such as a pre-existing home-equity loan, and does not otherwise negotiate a settlement of the loan, the new lender would receive the benefit of replacement but not equitable subrogation. As a result, the new lender would not have priority over the non-fully-discharged loan beyond the extent of the balance owed on the original, replaced loan. US Bank NA v. JPMorgan Chase Bank NA, 1 CA-CV 16-0253, 6/29/17.

An action for forcible entry and detainer accrues when a written demand of possession is served. Arizona’s procedure for taking possession of property and evicting persons without a right to

by Eric M. Fraser and Joseph N. Roth (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.

APPELLATE HIGHLIGHTS

Eric M. Fraser and Joseph N. Roth are attorneys at Osborn Maledon PA, where their practices include civil appeals and appellate consulting with trial lawyers. They may be reached at efraser@omlaw.com, jroth@omlaw.com, and are ably assisted with this column by Osborn Maledon PA’s appellate group, which maintains www.omlaw.com/azapp-blog/. AzAPP contributors include Josh Bendor, Hayleigh S. Crawford, William D. Furnish, Randy McDonald, Brian K. Mosley, Jana Sutton and Andrea Taylor.

Patrick C. Coppen is a sole practitioner in Tucson.

James M. Susa is a shareholder in the Tucson office of DeConcini McDonald Yetwin & Lacy PC.

possession is called a forcible entry or detainer. Under A.R.S. § 12- 542( 6), an action for forcible detainer (i.e., eviction) must be brought within two years after the cause of action accrues, and the action accrues “at the commencement of the forcible entry or detainer.” The commencement of a forcible detainer occurs upon service of a written notice demanding possession of the property. Thus, an action for forcible detainer must be brought within two years after service of a written demand for possession. Carrington Mortgage Servs. v. Woods, 1 CA-CV 16-0383,

6/22/17.

A.R.S. § 12-1802( 4) and ( 6) do not bar a suit to enjoin public officers from exceeding their statutory authority or arbitrarily or unreasonably exercising their discretionary authority. Under A.R.S. § 12-1802( 4), a court “shall not” grant an injunction to “ prevent enforcement of a public statute by officers of the law for the public benefit.” And under § 12- 1802( 6) a court “shall not” grant an injunction to “prevent the exercise of a public or private office in a lawful manner.” Although these provisions generally prohibit injunctions of the enforcement of a public statute or the exercise of lawful authority, neither bars a suit seeking an injunction to stop a public official from exceeding the official’s statutory authority. And when the official is exercising a discretionary authority, § 12-1802( 6) does not prohibit a court from enjoining the official from exercising the authority arbitrarily or unreasonably. Boruch v. Arizona, 1 CA-CV