Category Archives: Opinions

Fastcase comes to HeinOnline

HeinOnline is now offering free access to federal and state case law through Fastcase. With a Law Library card, patrons can log in to HeinOnline and find case law for federal and state decisions. Federal coverage includes Supreme Court opinions (1754-present), Federal Circuits (1924-present), Board of Tax Appeals (vols. 1-47), Tax Court Memorandum Decisions (vols. 1-59), U.S. Customs Court (vols. 1-70), Board of Immigration Appeals (1996-present), Federal District Courts (1924-present), and Federal Bankruptcy Courts (1 B.R. 1-present).

Find information about Fastcase in Heinonline at http://home.heinonline.org/caselaw/

 

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AZ Supreme Court & COA Div. 1 Opinions

 

ARIZONA SUPREME COURT OPINIONS, MAY 15- JULY 16, 2013

 

CV-12-0349

BRADFORD LUND et al v HON. MYERS et al

Robert M. Brutinel, Author; Rebecca White Berch, Concur, Scott Bales, Concur, John Pelander, Concur, Ann A. Scott Timmer, Concur

 

CR-12-0462

STATE OF ARIZONA v KEVIN OTTAR and RUAN JUNIOR HAMILTON

John Pelander, Author; Rebecca White Berch, Concur, Scott Bales, Concur, Robert M. Brutinel, Concur, Ann A. Scott Timmer, Concur

 

CV-12-0156

RALPH and CAROLEE THOMAS v MONTELUCIA VILLAS

Robert M. Brutinel, Author; Rebecca White Berch, Concur, Scott Bales, Concur, John Pelander, Concur, Ann A. Scott Timmer, Concur

 

CR-10-0307

STATE OF ARIZONA v JOHN VINCENT FITZGERALD

John Pelander, Author; Rebecca White Berch, Concur, Scott Bales, Concur, Robert M. Brutinel, Concur, Ann A. Scott Timmer, Concur

 

CV-12-0402

STATE OF ARIZONA v HON. BUTLER/TYLER B.

Scott Bales, Author; Rebecca White Berch, Concur;  John Pelander, Concur; Robert M. Brutinel, Concur; Ann A. Scott Timmer, Concur; John Pelander, Special Concurrence

 

 

ARIZONA COURT OF APPEALS – DIVISION ONE OPINIONS,  MAY 15- JULY 16, 2013

 

STATE v. BUOT – 1 CA-CR 12-0198

Diane M Johnsen, Author; Patricia K Norris, Concur; Jon W Thompson, Concur

 Whether, under Arizona law, when a defendant is charged with second-degree murder, the superior court must admit evidence of the defendant’s character trait of impulsivity to show that he did not act knowingly or recklessly in causing the death of another.

 

BALESTRIERI v. BALESTRIERI – 1 CA-CV 12-0089

Diane M Johnsen, Author; Samuel A Thumma, Concur; Michael J Brown, Concur

Whether Arizona Rule of Civil Procedure (“Rule”) 54(g)(1), which states that a request for attorney’s fees “shall be made in the pleadings,” precludes an award of fees to a defendant who does not file an answer but instead successfully moves to dismiss a complaint for lack of personal jurisdiction pursuant to Rule 12(b).

 Whether a defendant waives personal jurisdiction by filing a request for attorney’s fees with a Rule 12(b) motion to dismiss for lack of personal jurisdiction.

 Whether a defendant who successfully moves to dismiss for lack of personal jurisdiction wait to request attorney’s fees until after the court has granted the motion.

 

RSP v. FIVE STAR – 1 CA-CV 12-0545

Diane M Johnsen, Author; Samuel A Thumma, Concur; Michael J Brown, Concur

 Whether the Arizona Prompt Payment Act, Arizona Revised Statutes §§ 32-1129, et seq., applies to contracts for the provision of architectural services.

 

STATE v. KENDRICK – 1 CA-CR 11-0849

Patricia K Norris, Author; Andrew W Gould, Concur; Randall M Howe, Concur

Whether a probationer’s unauthorized removal of an electronic monitoring device, required as a condition of probation, constitute escape in violation in of A.R.S.  § 13-2503(A)(2)? 

 

NOLD v. NOLD – 1 CA-CV 12-0214

Patricia A Orozco, Author; Peter B Swann, Concur; Paul F Eckstein, Judge Pro Tempore, Concur

 1.   Whether the family court erred in failing to list the custody factors in Arizona Revised Statute 25-403?

 2.    Whether Father nevertheless waived his objections to the sufficiency of the statutory custody findings by failing to raise this issue in his motion for new trial.

 3.   Whether Father waived his claim for a community property interest in the retirement accounts and life insurance policy by failing to list them in his pre-trial statement.

 4.   Whether the family court erred in finding Father failed to preserve his claim in the retirement accounts and life insurance policy when the retirement accounts were raised in Mother’s pre-trial statement and the family court heard evidence regarding the retirement accounts and life insurance policy.

 

STATE v. BAGGETT – 1 CA-CR 12-0480

Andrew W Gould, Author; Margaret H Downie, Concur; Patricia A Orozco, Concur

 Whether Arizona Revised Statute Section 28-817(A) applies only to bicycles traveling on the roadway at night or whether it also applies to bicycles traveling on a sidewalk at night.

 

STATE v. FRANKLIN – 1 CA-CR 12-0157

Patricia A Orozco, Author; Peter B Swann, Concur; Robert C Houser, Jr, Judge Pro Tempore

 Whether the trial court erred in admitting a victim’s hearsay statements pursuant Arizona Rule of Evidence 804(b)(6), the Forfeiture by Wrongdoing hearsay exception?

 

STATE v. REYES –  1 CA-CR 12-0163

Maurice Portley, Author; Samuel A Thumma, Concur; Donn Kessler, Concur

 Does A.R.S. § 13-610 allow the superior court to order a convicted felon to pay the cost of DNA testing?

 

IN RE MH 2012-002480 – 1 CA-MH 12-0077

Andrew W Gould, Author; Patricia K Norris, Concur; Randall M Howe, Concur

 Whether two witnesses who had no physical, in-person contact with the Appellant for several months prior to her involuntary commitment hearing qualify as “acquaintance witnesses” pursuant to Arizona Revised Statute Section 36-539(B).

 

REECK v. MENDOZA – 1 CA-CV 12-0158

Robert Carter Olson, Judge Pro Tempore, Author; Patricia A Orozco, Concur; Peter B Swann, Concur

 Whether this court has jurisdiction over an appeal when the family court has granted a party attorney fees, but that party has failed to file and serve the required application for attorney fees?

 

ALPHA v. DARTT, et al. – 1 CA-CV 12-0361

Margaret H Downie, Author; Andrew W Gould, Concur; Patricia A Orozco, Concur

 Whether towing companies have a constitutionally protected property interest in remaining on a police department’s towing rotation list if the underlying administrative regulations creating the list have not been established through legislative action?

 

CALVIN B. v. BRITTANY B., G.B. –  1 CA-JV 12-0197

Diane M Johnsen, Author; Peter B Swann, Concur, Randall M Howe, Concur

 Whether the court may grant a private petition to sever a parent’s rights brought by the other parent, when the petitioning parent has persistently interfered with the subject parent’s opportunity to interact with their child.

 

PARKWAY v. ZIVKOVIC – 1 CA-CV 12-0612

Philip Hall, Author; Jon W Thompson, Concur; Kent E Cattani, Concur

 Does a party prospectively waive anti-deficiency protections provided by Arizona Revised Statutes section 33-814(G)?

 

STATE v. WILLIAMS – 1 CA-CR 11-0813

Michael J Brown, Author; Andrew W Gould, Concur; Donn Kessler, Specially Concurring

 

When a jury finds a defendant guilty of felony murder and second-degree murder arising from the death of a single victim, should the trial court vacate the second-degree murder conviction prior to sentencing?

 

MELENDEZ v. HALLMARK – 1 CA-CV 12-0141

Donn Kessler, Author; Michael J Brown, Concur; Andrew W Gould, Dissent

 Does an offer for purposes of Arizona Revised Statutes section 20-259.01 require that premium prices for uninsured and underinsured motorist insurance coverage be presented to the potential insured?

 

CABLE ONE v. ADOR, et al – CA-TX 12-0006

Patricia K Norris, Author; Andrew W Gould, Concur; Randall M Howe, Concur

 Whether a cable company that uses its cable broadband network and Voice over Internet Protocol service to provide its customers with local and long-distance telephone service a “telecommunications company” is subject to central assessment by the Arizona Department of Revenue?

 

STATE v. ARVALLO – 1 CA-CR 11-0193

Peter B Swann, Author; Patricia A Orozco, Concur; Thomas C Kleinschmidt, Judge Pro Tempore, Concur

 When testimony concerning violent behavior prompts a juror to express concerns over his or her anonymity and safety, and the juror expresses a desire to shield such concerns from the defendant, is a mistrial required?

 

HAMM v. RYAN – 1 CA-CV 12-0130

Michael J Brown, Author; Samuel A Thumma, Concur; Diane M Johnsen, Concur

 1.  Whether Arizona Revised Statutes section 41-1604, which authorizes a $25 charge for conducting a background check on any person seeking to visit a prison inmate, is an unconstitutional special law in violation of Article 4, Part 2, Sections 19(9) and (20) of the Arizona Constitution.

 2.  Whether, if construed as a fee, the $25 charge is unconstitutional.

 3.  Whether the $25 charge is an unconstitutional tax.

Constitutionality Decision

Holding Arizona Revised Statutes § 41-1604(B)(3) (imposing a $25 fee for conducting background checks on any person seeking to visit a prison inmate) does not violate  Article 2, Part 2, Section 19 of the Arizona Constitution, which prohibits enactment of special laws.

 

COOK v. PINETOP-LAKESIDE – 1 CA-CV 12-0258

John C Gemmill, Author; Jon W Thompson, Concur; Donn Kessler, Concur

 Does the one-year statute of limitations of Arizona Revised Statutes Section 12-821 run against a plaintiff in possession of property who brings a quiet title action to remove a cloud on the title to his property?

 

STATE v. ANTHONY, et al. – 1 CA-CV 11-0796

Donn Kessler, Author; John C Gemmill, Concur; Jon W Thompson, Concur

 Whether, in a forfeiture case, Arizona Revised Statutes section 13-4311(G) provides a ten-day grace period for the defendants or claimants to file an answer?

 

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U.S. Supreme Court 2012-2013 Slip Opinions

Some recent U.S. Supreme Court decisions have been covered extensively in the media. In the last few days, decisions in U.S. v. Windsor regarding the Defense of Marriage Act, Hollingsworth v. Perry regarding Proposition 8 in California, Shelby County v. Holder regarding the Voting Rights Act of 1965, and Fisher v. University of Texas at Austin regarding race in university admissions are amongst some of the decisions released that have generated a lot of media interest. If you wish to read the opinions of these or any U.S. Supreme Court decisions from the 2012-2013 session, you can find the slip opinions on their website at http://www.supremecourt.gov/opinions/slipopinions.aspx?Term=12.

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