IN THE
SUPREME COURT OF THE STATE OF ARIZONA
CITY OF PHOENIX, A MUNICIPAL CORPORATION,
Plaintiff/Appellee,
v.
JOHN E. GARRETSON, AS TRUSTEE OF THE EMERY E. OLDAKER TRUST, DATED
JULY 30, 1966; JOHN E. GARRETSON, AN UNMARRIED MAN,
Defendant/Appellant.
No. CV-13-0181-PR
Filed April 17, 2014
Appeal from the Superior Court in Maricopa County
The Honorable John A. Buttrick, Judge
No. CV2007-004793
REVERSED AND REMANDED
Opinion of the Court of Appeals, Division One
232 Ariz. 115, 302 P.3d 640 (App. 2013)
VACATED
COUNSEL:
Charles K. Ayers (argued) and Stephanie Heizer, Ayers & Brown PC,
Phoenix, for City of Phoenix
Dale S. Zeitlin (argued), Zeitlin & Zeitlin PC, Phoenix, for John E.
Garretson and John E. Garretson, as Trustee of the Emery E. Oldaker Trust
Barbara Lawall, Pima County Attorney, Regina L. Nassen and Andrew L.
Flagg, Deputy Pima County Attorneys, Tucson, for Amicus Curiae Pima
County
William F. Bock, League of Arizona Cities and Towns, Phoenix, for
Amicus Curiae League of Arizona Cities and Towns
CITY OF PHOENIX V. GARRETSON
Opinion of the Court
Thomas C. Horne, Attorney General, Robert L. Ellman, Solicitor General,
Joe Acosta, Jr. (argued), and Bryan B. Perry, Assistant Attorneys General,
Transportation Section, Phoenix, for Amicus Curiae Arizona Department
of Transportation on behalf of John Halikowski, Director
JUSTICE PELANDER authored the opinion of the Court, in which CHIEF
JUSTICE BERCH, JUSTICE BRUTINEL, JUSTICE TIMMER, AND JUDGE
HOWARD* joined.
JUSTICE PELANDER, opinion of the Court:
¶1 The issue in this case is whether a property owner may be
entitled to compensation if the government, in the exercise of its police
power, eliminates the owner’s established access to an abutting roadway.
We hold that under those circumstances an owner may claim
compensable damage to private property within the meaning of Article 2,
Section 17 of the Arizona Constitution, even if other streets provide access
to the property.
I.
¶2 The superior court granted the City of Phoenix’s motion for
partial summary judgment. We therefore view the facts in the light most
favorable to John Garretson, the non-moving party. Gipson v. Kasey, 214
Ariz. 141, 142 ¶ 2, 150 P.3d 228, 229 (2007).
¶3 Garretson owns a parcel of real property in downtown
Phoenix that abuts Jefferson Street to the north, First Street to the east,
Madison Street to the south, and another parcel to the west. In 2006, the
City started installing light rail tracks along the south side of Jefferson
Street abutting the north side of Garretson’s property. As part of the
installation, the City erected a permanent concrete barrier between the
south side of the tracks and Garretson’s property. This barrier blocked
two driveways that provided vehicular access from Jefferson Street to
*Vice Chief Justice Scott Bales recused himself from this case. Pursuant to
Article 6, Section 3 of the Arizona Constitution, the Honorable Joseph W.
Howard, Chief Judge of the Arizona Court of Appeals, Division Two, was
designated to sit in this matter.
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CITY OF PHOENIX V. GARRETSON
Opinion of the Court
Garretson’s property. The property, however, still has access via Madison
Street.
¶4 After the City finished the project, it filed an eminent
domain action to determine the compensation owed to Garretson for a
temporary construction easement he granted the City for the purpose of
installing the tracks. Garretson counterclaimed, seeking damages for his
permanent loss of access to Jefferson Street. The City moved for partial
summary judgment on that claim. The superior court granted the motion,
ruling that a property owner is not entitled to compensation for loss of
access if he retains “free and convenient access” to the property.
¶5 The court of appeals vacated that ruling, holding that “when
the government eliminates a property owner’s established access to an
abutting street and the owner retains access from another street, the
owner is not necessarily foreclosed from obtaining compensation for
damages to the property under the Arizona Constitution.” City of Phoenix
v. Garretson, 232 Ariz. 115, 118 ¶ 10, 302 P.3d 640, 643 (App. 2013). After
summarizing pertinent Arizona cases, id. at 118–21 ¶¶ 13–24, 302 P.3d at
643–46, the court identified a “common thread”: “the government may
not completely remove or substantially impair a property’s existing access
to an abutting roadway without providing just compensation to the
owner.” Id. at 121 ¶ 25, 302 P.3d at 646. The court also ruled that
governmental police powers do not provide “an unqualified right to
destroy or substantially impair access without paying just compensation.”
Id. at 122 ¶ 26, 302 P.3d at 647.
¶6 We granted the City’s petition for review because the legal
issues raised regarding private property rights and governmental police
power are likely to recur and are of statewide importance. We have
jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and
A.R.S. § 12-120.24.
II.
¶7 The Arizona Constitution provides that “[n]o private
property shall be taken or damaged for public or private use without just
compensation having first been made.” Ariz. Const. art. 2, § 17. Because
the City did not permanently take any of Garretson’s land, this case does
not involve a “taking” or “severance damages” as traditionally
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CITY OF PHOENIX V. GARRETSON
Opinion of the Court
understood in eminent domain or inverse condemnation actions. Rather,
this case concerns the damages provision of Article 2, Section 17; the issue
is whether the City’s elimination of Garretson’s preexisting access to
Jefferson Street constitutes damage to his private property, supporting a
claim for just compensation.
A.
¶8 We do not write on a blank slate, but our prior cases are
somewhat difficult to reconcile. Although the court of appeals accurately
traced this state’s jurisprudence, three cases in particular warrant
discussion.
¶9 In State ex rel. Morrison v. Thelberg, the landowners’ property
abutted a conventional highway that the state converted to a controlled-
access highway with a slightly raised frontage road.1 87 Ariz. 318, 321, 350
P.2d 988, 989–90 (1960). Before the conversion, the landowners had
“direct and unlimited access” to the conventional highway from their
abutting property. Id. After the conversion, the landowners retained
unlimited access, but only to the frontage road rather than the main
highway. See id.
¶10 Overruling earlier cases, this Court held that “an abutting
property owner to a highway has an easement of ingress and egress to
and from his property which constitutes a property right” protected by
Article 2, Section 17. Id. at 324, 350 P.2d at 991. We further held that the
state must compensate landowners when that right of access is “taken
away or destroyed or substantially impaired.” Id. Applying that rule to
the facts, we concluded that the landowners’ access to the new controlled-
access highway had been substantially impaired by the conversion and
upheld the trial court’s damage award. Id. at 325–26, 350 P.2d at 992–93.
Because we allowed compensation for that impairment, we implicitly
1 In this opinion, we do not use the terms “highway,” “road,”
“street,” and “roadway” in any technical or statutorily defined way, see
A.R.S. § 28-101(13), (50), (52); rather, we use them generically and
interchangeably, as differentiated from a freeway or other “controlled-
access” or “limited-access highway,” where ingress and egress are
permitted only at certain government designated points. See State ex rel.
Herman v. Schaffer, 105 Ariz. 478, 480, 467 P.2d 66, 68 (1970).
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Opinion of the Court
found a property right to directly access a particular road, even when
existing access points to and from the property are undisturbed.
¶11 We followed Thelberg’s principles in State ex rel. Herman v.
Wilson, upholding a compensation award when the government
destroyed a property owner’s access to an abutting road and did not
replace it with a frontage road or otherwise. 103 Ariz. 194, 197, 438 P.2d
760, 763 (1968). In Wilson, we recognized that, in the interest of public
safety, the government may limit “direct access to a public highway,” as
long as the alternative route “is not unreasonably circuitous.” Id. After
observing that “the substitute access road” in that case was “unreasonably
circuitous,” id., we held more broadly, “consistent with our former
decisions, that the complete destruction of direct access to a public
highway constitutes a damaging of property within the meaning of
[Article 2, Section 17].” Id.
¶12 In dissent, Chief Justice McFarland found our earlier cases
“simply not suitable for . . . super-highways.” Id. at 200, 438 P.2d at 766
(McFarland, C.J., dissenting). In that new context, he urged
reconsideration of “our past decisions on the question of compensation for
impaired access.” Id. Chief Justice McFarland asserted that the majority
misapplied Thelberg, which “did not intend to change the rules previously
established and to include elements of damage not otherwise
compensable.” Id. at 201–02, 438 P.2d at 767–68; see also Defnet Land & Inv.
Co. v. State ex rel. Herman (Defnet I), 103 Ariz. 388, 391–92, 442 P.2d 835,
838–39 (1968) (McFarland, C.J., specially concurring) (reiterating his view
that prior cases should not apply to controlled-access highway cases).
¶13 A decade after Thelberg and just two years after Wilson,
Justice McFarland authored the Court’s unanimous opinion in State ex rel.
Herman v. Schaffer, 105 Ariz. 478, 467 P.2d 66 (1970), the facts of which are
very similar to Thelberg’s. In Schaffer, the landowners’ properties abutted a
divided highway, and each landowner “had direct access to both the
northbound and southbound lanes of traffic.” Id. at 479, 467 P.2d at 67.
The state converted the divided highway into Interstate 10, after which the
landowners retained the same access they previously had, except that the
access was to a frontage road that led to I-10, rather than to the freeway
itself. Id. The landowners sought compensation because the state’s
conversion project deprived them of direct access to a divided highway.
Id.
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CITY OF PHOENIX V. GARRETSON
Opinion of the Court
¶14 We rejected the landowners’ argument, holding that “direct
access to a highway is not a private property right within the
contemplation of Article 2, Section 17 of the Arizona Constitution.” Id. at
481, 467 P.2d at 69. Writing for the Court, and consistent with his dissent
in Wilson, Justice McFarland focused on the novelty of controlled-access
highways and the state’s need to adequately regulate access for safety
reasons. See, e.g., id. at 480–81, 467 P.2d at 68–69. The Court framed the
“unreasonably circuitous” test, alluded to in Wilson, as relating to
controlled-access highways.2 Id. at 481, 467 P.2d at 69 (precluding
compensation if “the ingress and egress to the limited-access highway as
provided by a frontage road [is] not so circuitous as to be unreasonable”)
(emphasis added).
¶15 In adopting and applying the “unreasonably circuitous” test
in Schaffer, this Court recognized that the government may regulate traffic
and maintain safety through its police powers. We cited examples of
routine exercises of police power, including “prohibiting left turns,
prescribing one-way traffic, prohibiting access or crossovers between
separate traffic lanes, prohibiting or regulating parking, and restricting the
speed, weight, size and character of vehicles allowed on certain
highways.” Id. at 483, 467 P.2d at 71 (quoting Ray v. State Highway
Comm’n, 410 P.2d 278, 287 (Kan. 1966) (Fatzer, J., concurring)). We
concluded that, like those types of changes that do not result in
compensable harm to abutting landowners, creating a controlled-access
freeway system and regulating “high-speed traffic by limiting access” are
also noncompensable governmental actions. Id.
¶16 A landowner, we observed, “has never had a property right
in the traffic, great or small, on the highway, nor a right to recover
damages for a decrease in value of her premises by reason of the diversion
of traffic away from her property.” Id. at 483, 467 P.2d at 71 (quoting State
ex rel. State Highway Comm’n v. Meier, 388 S.W.2d 855, 857 (Mo. 1965)).
Because the controlled-access highway conversion left the landowners
2 Given that emphasis, the court of appeals in this case
understandably viewed Schaffer’s “unreasonably circuitous” test as limited
to cases involving “whether access to controlled-access highways has been
substantially impaired.” Garretson, 232 Ariz. at 123 ¶ 31, 302 P.3d at 648.
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CITY OF PHOENIX V. GARRETSON
Opinion of the Court
with the same access they had before the conversion, they could not
obtain compensation for the loss of “direct access to the mainstream of
traffic.” Id. at 479, 467 P.2d at 67; see also id. at 486, 467 P.2d at 74 (finding
landowners’ “limitation of access” claim not compensable when their
access to I-10 via remaining frontage road “was not unreasonably
circuitous”).
B.
¶17 Taken together, Thelberg, Wilson, and Schaffer direct whether
landowners may have a compensable claim for damage to a property right
caused by roadway alterations when no physical property is taken. A
landowner’s preexisting means “of ingress and egress to and from his
property . . . constitutes a property right,” the taking or damaging of
which may require compensation under Article 2, Section 17. Thelberg, 87
Ariz. at 324, 350 P.2d at 991; see also Wilson, 103 Ariz. at 197, 438 P.2d at
763. That property right, however, is not taken or damaged when the
government alters a highway but leaves existing access points unchanged,
unless the access to the roadway system is “unreasonably circuitous.”
Schaffer, 105 Ariz. at 484–85, 467 P.2d at 72–73.
¶18 This rule does not undermine the government’s broad
authority to regulate traffic and maintain safety through its police power.
In general, governmental entities may alter highways without
compensating landowners whose property is devalued by various
roadway projects and traffic flow changes. See id. “[N]ot all . . . damage
resulting from a highway improvement [is] compensable.” Rayburn v.
State ex rel. Willey, 93 Ariz. 54, 57, 378 P.2d 496, 498 (1963). Thus, a
property owner is not entitled to compensation simply because changes in
the type, features, or traffic flow of an abutting roadway, or the
construction of a new road, reduce his property’s value. Stated
differently, there is no constitutionally protected right of access to a
particular roadway, nor does a landowner’s entitlement to compensation
hinge on the nature or characterization of the old or new roadway.
¶19 Governmental police powers, however, are not unlimited,
and their exercise does not automatically preclude compensation. When
an alteration destroys or substantially impairs a preexisting right of
access, the affected landowner may be entitled to compensation, even
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CITY OF PHOENIX V. GARRETSON
Opinion of the Court
though the alteration is permissible as an exercise of the police power. See
Thelberg, 87 Ariz. at 324, 351 P.2d at 991.
¶20 In clarifying the rule announced today, we find persuasive
City of Wichita v. McDonald’s Corp., 971 P.2d 1189 (Kan. 1999).3 In that case,
the Kansas Supreme Court distinguished between impairment of a “right
of access” and “regulation of traffic flow.” Id. at 1197. “Right of access”
refers to the “common-law right of access from the landowner’s property
to abutting public roads.” Id. A government generally owes
compensation when it takes or destroys the landowner’s right of access,
but not when a project results merely in regulating or reducing traffic
flow. Id. For example, the court concluded, “where a new highway is
constructed, moved, or traffic is re-routed,” landowners are generally not
entitled to compensation even if they are “adversely affected by the
changes.” Id.
¶21 Based on that distinction, the Kansas court ruled that a
landowner was not entitled to compensation when the City of Wichita
converted an abutting road from a four-lane divided highway to a six-lane
highway but did not affect the landowner’s access. Id. at 1198. The court
characterized the case as involving the city’s “regulation of traffic flow”
rather than impairment of a “right of access,” because the landowner
retained the four access points along the abutting road that had existed
before the alteration. Id. Thus, the landowner was not entitled to
compensation. Id.
¶22 Consistent with the Kansas court’s distinction, we conclude
that this case involves Garretson’s right of access, not merely a police-
power regulation of traffic flow, as the City argues. The City completely
eliminated Garretson’s preexisting access to Jefferson Street, leaving him
with no means of ingress or egress to that street or any replacement
roadway in that location. Under these circumstances, he has a claim for
compensation under the Arizona Constitution.
3 Notably, in Schaffer this Court drew heavily from Kansas case law.
Schaffer, 105 Ariz. at 481–84, 467 P.2d at 69–72.
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CITY OF PHOENIX V. GARRETSON
Opinion of the Court
C.
¶23 Despite Garretson’s loss of all direct access to Jefferson Street
and the north side of his property, the City and several governmental
amici argue that he is not entitled to compensation because he has other
ways to get to that street that are not “unreasonably circuitous,” as
described in Schaffer. In light of Schaffer’s express holding that “direct
access to a highway is not a private property right within the
contemplation of Article 2, Section 17 of the Arizona Constitution,” 105
Ariz. at 481, 467 P.2d at 69, this argument might seem persuasive. But
contrary to the City’s position, we view Schaffer as refining, rather than
revoking, our prior cases in an attempt to mesh results that admittedly
seem inconsistent.
¶24 Contrary to the City’s assertion, Schaffer did not overrule
Thelberg, and indeed it cited Thelberg and Wilson without questioning
either. See Schaffer, 105 Ariz. at 485, 467 P.2d at 73 (quoting Wilson’s
holding without disavowing it, and citing with approval Thelberg’s
discussion of the proper measure of damages). But the results in Thelberg
and Schaffer are difficult to reconcile. Under a strict application of
Thelberg’s rule, see supra ¶ 10, the landowners in Schaffer would have
prevailed on their right of access claim because in both cases the
landowners’ damages stemmed from impaired access to the new
controlled-access highway. Id. at 479, 467 P.2d at 67; Thelberg, 87 Ariz. at
326, 350 P.2d at 992–93. And conversely, had the rule in Schaffer applied in
Thelberg, the result in Thelberg might have been different. Schaffer, then,
necessarily rejected Thelberg only to the extent Thelberg found that
impairing direct access to a particular highway is compensable, even if
preexisting access points remained undisturbed. The inconsistency of
results in Thelberg and Schaffer, however, does not mean that the latter
overruled the former entirely.
¶25 In concluding that the principles announced in Thelberg
survive Schaffer, we observe that just two years before he authored
Schaffer, Justice McFarland dissented in Wilson and called for reevaluating,
not overruling, cases like Thelberg “when applied to the new type of high-
speed limited-access highways now being built.” Wilson, 103 Ariz. at 200,
438 P.2d at 766 (McFarland, C.J., dissenting). Additionally, some of the
same justices who joined in Schaffer also joined in Thelberg and Wilson.
Given that fact, the absence of any suggestion in Schaffer that Thelberg was
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CITY OF PHOENIX V. GARRETSON
Opinion of the Court
overruled, and the lack of any dissenting or specially concurring opinion
in Schaffer, it is unlikely that the Court in Schaffer intended to implicitly
overrule Thelberg and Wilson. Rather, Schaffer achieved exactly what
Justice McFarland sought to accomplish in his Wilson dissent—a
reconsideration of how Thelberg’s principles should apply in the modern
era of controlled-access highways.
¶26 Schaffer is best viewed as a case that corrected course on how
the law should apply to a controlled-access highway conversion when the
landowner’s preexisting means of ingress and egress are neither destroyed
nor substantially impaired. Thelberg announced the general rule that a
landowner’s right to access abutting roads is a constitutionally protected
property right, the destruction or substantial impairment of which is
compensable. 87 Ariz. at 324, 350 P.2d at 991. Thelberg, however,
incorrectly applied that rule to a landowner who did not lose any access to
an abutting road but rather sought compensation for his inability to
directly access a newly built controlled-access highway. Schaffer corrected
Thelberg’s misapplication of the general rule, concluding instead that a
landowner has no “direct-access right” to a newly built controlled-access
highway unless the remaining access is “unreasonably circuitous.”
Schaffer, 105 Ariz. at 484, 485, 467 P.2d at 72, 73.
¶27 Likewise, Wilson’s mention of the “unreasonably circuitous”
test is confusing and unnecessary because there, as in this case, the
government project completely eliminated the landowner’s preexisting
access. Wilson, 103 Ariz. at 197, 438 P.2d at 763. The “unreasonably
circuitous” test applies only when a property owner claims that the
government project substantially impairs access.
¶28 In sum, the rules set forth in Thelberg and its progeny,
including Schaffer, remain good law.4 Consistent with our prior cases, we
4 The progression of the Defnet case is consistent with our view that
Thelberg and its progeny survive Schaffer. In Defnet I, decided pre-Schaffer,
landowners lost direct access to Route 66 as a result of the state
constructing Interstate 40. 103 Ariz. at 391, 442 P.2d at 838. We remanded
the case to the trial court in part because the state’s appraisers did not
adequately consider the property’s loss of direct access, as required by
Thelberg. Id. On retrial, the jury awarded damages for that loss, and the
court of appeals affirmed the award post-Schaffer. Defnet Land & Inv. Co. v.
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Opinion of the Court
hold that a property owner is entitled to compensation if the government
either completely eliminates or substantially impairs the owner’s access to
an abutting road and thereby causes the property’s fair market value to
decrease. As noted above, however, a landowner who claims or
establishes only substantial impairment is not entitled to compensation
unless the remaining access is unreasonably circuitous.
D.
¶29 In arguing that Garretson is not entitled to compensation,
the City relies heavily on two court of appeals’ cases: Tucson Title Ins. Co.
v. State ex rel. Herman, 15 Ariz. App. 452, 489 P.2d 299 (1971), and City of
Phoenix v. Wade, 5 Ariz. App. 505, 428 P.2d 450 (1967). But in both Wade
and Tucson Title, the landowners retained the access they had before the
government projects. See Wade, 5 Ariz. App. at 509, 428 P.2d at 454
(holding that because a “curb cut [was] sufficient” in providing the
landowners access to a driveway they previously could use, “the
landowners’ right[] to ingress and egress was not materially impaired or
destroyed”); Tucson Title Ins. Co., 15 Ariz. App. at 456, 489 P.2d at 303 (“In
the ‘after situation’ El Toro Road will pass under the new highway, thus
giving the land the same access and mode of travel on El Toro as existed
in the ‘before situation.’”). Consistent with those cases and with Schaffer,
we agree that when a road alteration leaves existing access untouched, a
landowner is not entitled to compensation based solely on a
reconfiguration of the roadway system or the reduction or other change of
traffic flow in the area. But in contrast to Wade and Tucson Title, the City
completely eliminated Garretson’s preexisting access to Jefferson Street
and left him with no means of ingress or egress on that side of his
property.
¶30 The City also argues that Garretson is not entitled to
compensation because his property is not land-locked, and he has
reasonable alternative means of access to the roadway system, including
Jefferson Street. In Thelberg, however, we explicitly found that “[o]ther
means of access may mitigate damages, but does not constitute a defense
State ex rel. Herman (Defnet II), 14 Ariz. App. 96, 103, 480 P.2d 1013, 1020
(1971). Had Schaffer overruled Thelberg, the court of appeals in Defnet II
could not have affirmed because the jury’s award in Defnet II was based in
part on Thelberg’s rule that loss of direct access is compensable.
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Opinion of the Court
to the action.” 87 Ariz. at 325, 350 P.2d at 992 (internal citation omitted).
We reaffirm that principle here. The availability of other means of access
in a case such as this is relevant only to the measure of damages.
E.
¶31 We next address the City’s argument, based on Wade, that in
cases such as this trial courts, in their “gatekeeper function,” must always
preliminarily determine as a matter of law whether the government’s
action caused a material impairment of access. See Wade, 5 Ariz. App. at
509, 428 P.2d at 454 (stating that “[t]he trial court must rule as a matter of
law whether the interference of access constitutes destruction or material
impairment”). That contention misses the mark because this case involves
the City’s elimination, not material impairment, of preexisting access. In
addition, Wade was decided before Schaffer, in which we stated that
whether a property’s remaining access is unreasonable “is a question to be
resolved by the trier of fact in the first instance.” Schaffer, 105 Ariz. at 484,
467 P.2d at 72.
¶32 Thus, Schaffer implicitly rejected the notion that liability in
cases such as this is always a legal question. Moreover, determining
liability as a matter of law in Wade was appropriate because the facts there
were undisputed; the landowners previously had used a driveway to
access the abutting street, and after the government project they retained
that same access. Wade, 5 Ariz. App. at 507–08, 428 P.2d at 452–53.
Similarly, when, as here, no genuine issue of material fact exists on
whether the landowner’s access has been eliminated, the liability question
may be resolved as a matter of law.
¶33 The parties agree that Garretson previously had two points
of direct access to Jefferson Street that the City completely eliminated.
The parties dispute only the legal issue of whether Garretson may be
entitled to compensation based on his loss of access, an issue we have
resolved in his favor. Under these circumstances, there is no need to
litigate or resolve whether Garretson’s access has been substantially
impaired or whether his remaining access is unreasonably circuitous.
Rather, the only pertinent question remaining is whether Garretson’s
complete loss of access to Jefferson Street decreased the fair market value
of his property, a factual issue on which we express no opinion. See
Thelberg, 87 Ariz. at 325, 350 P.2d at 992 (explaining the amount of
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Opinion of the Court
compensation as the “difference in the value of the remaining property
before and after the access thereto has been destroyed or impaired”); Pima
County v. Bilby, 87 Ariz. 366, 373, 351 P.2d 647, 651 (1960) (recognizing that
the property owner must prove to the trier of fact the loss of value).
¶34 As the court of appeals correctly noted, however, Garretson
did not cross-move for partial summary judgment on the issue of liability.
Garretson, 232 Ariz. at 117 ¶ 10 n.7, 302 P.3d at 642 n.7. Nonetheless,
because the City is not entitled to judgment as a matter of law on that
issue, see Ariz. R. Civ. P. 56(a), the superior court erred in entering partial
summary judgment in its favor.
III.
¶35 We reverse the superior court’s grant of partial summary
judgment in favor of the City, vacate the court of appeals’ opinion, and
remand the case to the superior court for further proceedings consistent
with this opinion.
13