Most of this case against the various public entities is dismissed for failure to comply with the notice of claim statute. (The court tells us the minor plaintiffs were dismissed without prejudice and are not subject to the appeal. Remember a minor’s wrongful death claim is tolled. Porter v. Triad of Ariz., L.P., 203 Ariz. 230 (App. 2002)). The notices did not include sufficient facts as to the liability claims. The notices were identical and include broad statements that the defendants failed “to follow all laws, prevent dangerous conditions, to protect against hazards, not to create a dangerous condition, to warn of dangerous conditions, and to otherwise assure the safety of the Sanchez Family claimants.”  Against the State, the notice states the State Dept. of Liquor Licenses issued a liquor license, and renewed the license “despite it being open and obvious through their advertising and website that Billy Jack’s (the bar) seeks to overserve their customers.” The court holds this notice sufficiently states liability facts only against the State. The court of appeals distinguishes Backus v. State, 220 Ariz. 101 (2009) (“sufficiency of facts” requirement applies to liability but not damages). Nothing new here. (There is also a procedural mess caused by multiple judgments that the court has to sort through.)

The more important issue is whether the State has a duty. The court holds the Arizona statutes governing liquor licenses create a duty. By statute, the State extensively regulates alcohol and can suspend a license. Further, the immunity statute grants qualified immunity for failure to revoke or suspend a permit, license, etc. A.R.S. 12-820.02. Since the immunity applies only to negligence claims, plaintiff can still make a claim for gross negligence. (Rather strange to infer a cause of action from an immunity statute.) This draws a dissent from Judge Eppich. Judge Eppich emphasizes most of these statutes cited by Judge Eckerstrom regulate the conduct of the licensee not the State. The question of duty turns on whether a public agency’s conduct is such that it has endeavored to provide specific protection to a particular person. Here, the class is the general public, and Judge Eppich agrees with the state that the statutory authority is akin to general law enforcement powers, which provide no actionable duty to protect any individual member of the public. We expect to see a petition for review.  

The City of Scottsdale owns several swimming pools. In 2016 Neptune complained the City’s contract with a non-profit group called SAC for operating the swimming leagues should be open for bidding. Neptune asserted SAC was not paying a fair value for the contract and violated the Gift Clause. The City ignored this and renewed a three year contract with SAC thus continuing a 50-year relationship. But as that contract was expiring, the City for the first time issued a Request for Proposal. Neptune and SAC submitted proposals. City employees used a grading matrix and initially said SAC’s proposal scored substantially higher. Not true. The City then said it was a virtual tie and came up with other reasons for awarding the contract once again to SAC. Then when this was questioned, the City cancelled the RFP and stated the City was not required to use the RFP process. Neptune filed suit.

The Arizona Supreme Court holds the Gift Clause does not require competitive bidding or accepting the highest bid although the competitive bid process is a factor as to the market value of the license. The focus is on whether a public entity gets more than it gives. The Gift Clause is violated if the “give” and “get” are grossly disproportionate. Public entities may also consider nonpecuniary factors. “In sum, the Gift Clause serves to check mismanagement of public resources, but it does not require a public entity to maximize profits in every transaction.” Neptune did not prove a violation of the Gift Clause. The Court recognized, however, that failing to follow its own rules and cancelling the RFP may violate the public interest and be an abuse of discretion. The RFP is different from an invitation to bid on a contract where a public entity is required to award a contract “to the lowest responsible and responsive bidder.”  An RFP allows for discretion. While the City was not required to award Neptune the contract, “We conclude that disputed issues of material fact exist as to whether the City acted with a ‘fixed intent’ to award the license to SAC throughout the RFP process and engaged in favoritism by canceling the RFP after Neptune submitted the more advantageous proposal.” The Court runs through a list of questionable actions and remands the case for further consideration.  On remand, the trial court has been given pretty good reasons for finding an abuse of discretion.

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The Arizona Supreme Court starts off 2024 discussing the land use doctrine of “boundary by acquiescence.”  The doctrine applies when there is 1) occupation or possession up to a defined line, 2) mutual acquiescence as to the boundary, and 3) and ten years. The Court adds an additional element requiring the actual boundary must be uncertain or disputed. Anyone claiming “boundary by acquiescence” must prove these elements by clear and convincing evidence.

The parties purchased adjoining parties. The Becks hired a landscaper, and the landscaper did not follow the actual property line but cut the line short. Years later, when the Becks remodeled their backyard they wanted to move their pavers and landscaping out to the actual property line. The Nevilles sought advantage from the earlier mistake. Litigation ensued.  Trial court ruled on summary judgment for the Becks holding the Nevilles did not meet their burden as a matter of law.

Having less confidence in the rule of law, the court of appeals held there were material disputed facts and remanded for trial. 

The Supreme Court reverses the court of appeals. The Becks keep their property as a matter of law.  After discussing the importance of property rights, the Court holds occasionally parking your car on your neighbors’ property is not occupation; the Becks never acquiesced to changing the boundary; and while more than ten years passed, the actual property line was not disputed or uncertain.  The Court then cuts up Neville’s “adverse possession” claim for similar reasons.  The Court unnecessarily includes a picture showing the disputed property, but perhaps the picture reassures hundreds of other property owners.  The Nevilles are ordered to pay the Becks’ attorney’s fees and costs.

Justice Timmer concurs but finds little reason for the Court’s referencing the Constitution, the Declaration of Independence, the Virginia Declaration, and discussing “natural rights.”  We respect her concerns, but if she feels squeamish or skeptical over the history lesson, and these sources do not reflect anchoring principles or a foundation upon which courts should draw, then reason and fully explain why. She has as much ink and paper as she needs and hundreds of articles, books, and authorities to cite.

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