Kondaur Capital Corp. v. Pinal County

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

KONDAUR CAPITAL CORPORATION,
Plaintiff/Appellant,

v.

PINAL COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF ARIZONA;
AND PAUL R. BABEU, SHERIFF OF PINAL COUNTY,
Defendants/Appellees.

No. 2 CA-CV 2014-0001
Filed June 27, 2014

Appeal from the Superior Court in Pinal County
No. CV201002012
The Honorable Robert Carter Olson, Judge

DISMISSED

COUNSEL

Miles, Bauer, Bergstrom & Winters, LLP, Henderson, Nevada
By Jeremy T. Bergstrom
Counsel for Plaintiff/Appellant

Elardo, Bragg, Appel & Rossi, P.C., Phoenix
By Marc A. Appel
Counsel for Defendants/Appellees
 KONDAUR CAPITAL CORP. v. PINAL CO.
Opinion of the Court

OPINION

Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Eckerstrom concurred.

E S P I N O S A, Judge:

¶1 Kondaur Capital Corporation (Kondaur) seeks review
of a declaratory judgment addressing the manner in which Pinal
County Sheriff Paul Babeu and Pinal County Sheriff’s Department
(collectively, PCSO) enforce writs of restitution issued in connection
with statutory eviction actions. See A.R.S. §§ 12-1178 (addressing
forcible detainer actions), and 33-1377 (addressing special detainer
actions). Because we determine the issues raised by this appeal are
moot, we decline review.

Factual and Procedural Background

¶2 In March 2010, Kondaur purchased a Pinal County
residential property at a trustee’s sale. When the occupants of the
property, Clinton and Catherine White,1 failed to vacate the
premises after service of a written notice and demand to deliver
possession, Kondaur commenced a forcible detainer action against
them in Pinal County Superior Court. On May 28, 2010, judgment
was entered against the Whites, and Kondaur subsequently served
both the judgment and a writ of restitution on PCSO for
enforcement and execution. When PCSO failed to deliver
possession pursuant to the writ after several months, Kondaur
amended its complaint to add a claim for declaratory relief against

1As a result of the trial court’s November 2013 order severing
the forcible detainer action and dismissing Kondaur’s unjust
enrichment claim against the Whites, they are not parties to this
appeal. We have amended the caption to reflect this fact.

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 KONDAUR CAPITAL CORP. v. PINAL CO.
Opinion of the Court

PCSO,2 alleging it had “refused” to return the property to Kondaur.
As a remedy, Kondaur sought “a judicial determination of the
parties[’] rights and duties, and a declaration as to the enforcement
of the Court’s May 28, 2010 Order.”

¶3 Kondaur subsequently filed a motion for summary
judgment in which it argued that PCSO was required to enforce a
writ of restitution “by the end of the following business day after
receiving it absent exigent circumstances,” and further argued that,
as owner of the property, Kondaur was “not required to provide the
former occupant with a moving truck or [other] assistance [in]
moving the former occupant’s personal property.” In a response
and cross-motion for summary judgment, PCSO urged the court to
find that it had at least ten business days to serve and enforce a writ
of restitution and could require the owner of the property to provide
the occupant with assistance in removing the occupant’s personal
property.

¶4 After these issues had been fully briefed, Kondaur filed
a supplemental motion for summary judgment in which it raised
four additional issues concerning eviction procedure, including the
proper method for handling information concerning the occupants’
bankruptcy, the circumstances under which a writ of restitution can
expire, how to obtain a new writ upon expiration and the length of
time occupants can remain in the property after having been served
with a writ of restitution. The trial court entered judgment on
Kondaur’s declaratory judgment claim, citing A.R.S. § 12-1831

2As we noted in dismissing Kondaur’s first appeal for lack of a
final, appealable order, we question the propriety of this procedure
under the Arizona Rules of Real Property Eviction Actions. Those
rules do not appear to contemplate the amendment of a forcible
detainer action to add other types of claims. See Ariz. R. P. Eviction
Actions 2 (“All eviction actions are statutory summary proceedings
and the statutes establishing them govern their scope and
procedure.”); Ariz. R. P. Eviction Actions 8(c) (eviction actions
cannot be consolidated with other types of actions). However, as
resolution of this issue would not affect our result here, we decline
to address it further.

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 KONDAUR CAPITAL CORP. v. PINAL CO.
Opinion of the Court

(Scope of Uniform Declaratory Judgments Act) and Ariz. R. Civ.
P. 57 (Declaratory Judgments), in support of its finding that the
claim was justiciable.3 The court’s ruling addressed the following
seven issues:

Issue 1: Upon proper presentation to
[PCSO] of a writ of restitution, . . . when
must [PCSO] execute a writ of restitution
and remove the occupants from a
residential structure?

Issue 2: Is [PCSO] required to serve a writ
of restitution on a person?

Issue 3: Must [PCSO] serve a writ of
restitution and then give additional time to
the party in possession before transferring
possession?

Issue 4: May [PCSO] require the party
who obtained the writ to provide a moving
truck or storage for the personal property
of the person who is being evicted from a
residence?

Issue 5: Should [PCSO] refuse to enforce a
writ of restitution when informed by a
residential occupant of an automatic
bankruptcy stay from the United States
Bankruptcy Court?

Issue 6: Does a writ of restitution expire?

Issue 7: What is the procedure to obtain a
new writ of restitution?

3The court also cited the parties’ stipulation “that the Court
has jurisdiction to grant declaratory relief on the issues presented.”

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 KONDAUR CAPITAL CORP. v. PINAL CO.
Opinion of the Court

¶5 Kondaur’s first appeal was dismissed by this court for
lack of jurisdiction because its claim for unjust enrichment against
the Whites was still pending at the time the notice of appeal was
filed. Kondaur Capital Corp., No. 2 CA-CV 2012-0004, ¶¶ 1, 8. The
unjust enrichment claim subsequently was dismissed by the trial
court on Kondaur’s motion, and this appeal followed. Although we
generally have jurisdiction to review declaratory judgments
pursuant to A.R.S. §§ 12-1837 and 12-2101(A)(1), we decline to do so
here for reasons set forth below.

Discussion

Standing

¶6 As an initial matter, we address Kondaur’s standing to
seek review of all issues ruled on by the trial court. While Kondaur
acknowledges that the court “agreed with [its] position and granted
the relief requested on some of the issues presented,” it nevertheless
seeks review of “all of the issues considered by the Superior Court.”4
However, appellate jurisdiction is confined to appeals taken by a
“party aggrieved by the judgment.” Ariz. R. Civ. App. P. 1; see also
Chambers v. United Farm Workers Organizing Committee, 25 Ariz. App.
104, 107, 541 P.2d 567, 570 (1975) (“court’s ruling which is favorable
to a party may not be appealed by that party”); Farmers Ins. Grp. v.
Worth Ins. Co., 8 Ariz. App. 69, 71, 443 P.2d 431, 433 (1968) (“It is a
prerequisite to our appellate jurisdiction that the appellant be a
‘party aggrieved’ by the judgment or order.”). And where a lower
court ruling addresses multiple claims for relief, an appellant is only
entitled to appeal from “‘that part of the judgment by which [it] is
aggrieved.’” Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 8, 160 P.3d

4Based on this statement, we presume Kondaur is not seeking
review of Issue 2, which was neither included in its motion for
summary judgment nor addressed at the hearing on that motion. In
any event, that issue has been waived as a result of Kondaur’s
failure to address it herein. See Ariz. R. Civ. App. P. 13(a)(6);
DeElena v. S. Pac. Co., 121 Ariz. 563, 572, 592 P.2d 759, 768 (1979)
(issues not argued on appeal treated as abandoned).

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Opinion of the Court

223, 226 (App. 2007), quoting In re Gubser, 126 Ariz. 303, 306, 614 P.2d
845, 848 (1980).

¶7 Although Kondaur cites Camreta v. Greene, ___ U.S. ___,
131 S. Ct. 2020 (2011), as support for its contention that “a prevailing
party may appeal a Court’s order,” that decision is inapt for several
reasons. Camreta addressed the application of article III of the
United States Constitution and its “case-or-controversy
requirement” to a petition for certiorari filed by defendants who had
lost on the merits but succeeded on their claim of qualified
immunity. Id. at 2028-29. Unlike its federal counterpart, Arizona’s
constitution does not feature a “case-or-controversy” requirement;
rather, the directive to intermediate courts to consider appeals
brought by “aggrieved” parties is rule-based. See Ariz. R. Civ.
App. P. 1. Moreover, the holding in Camreta was expressly confined
to situations in which an immunized party seeks review in the
Supreme Court of a decision finding the party’s conduct had
violated a litigant’s constitutional rights. Id. at 2033 (“Our decision
today does no more than exempt one special category of cases from
our usual rule against considering prevailing parties’ petitions.”). It
therefore has no application to the issue at hand. Finally, the
essence of the Camreta holding—that a litigant who prevailed on one
issue but lost on another may appeal the adverse portion of the
ruling—is entirely consistent with our decision here. We therefore
decline Kondaur’s invitation to expand the scope of our review, and
address only those portions of the ruling wherein the trial court did
not adopt Kondaur’s position—specifically, Issues 1, 5, and 7.

Mootness

¶8 We now consider whether Kondaur’s remaining claims
for declaratory relief were rendered moot by the Whites’ eviction
from the property. Although, as noted above, Arizona courts are
not constitutionally constrained to consider only “cases” or
“controversies,” we typically decline to consider moot or abstract
questions as a matter of judicial restraint. Lana A. v. Woodburn, 211
Ariz. 62, ¶ 9, 116 P.3d 1222, 1225 (App. 2005), citing Fraternal Order of
Police Lodge 2 v. Phoenix Emp. Relations Bd., 133 Ariz. 126, 127, 650
P.2d 428, 429 (1982). As our supreme court has stated: “It is not an
appellate court’s function to declare principles of law which cannot
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Opinion of the Court

have any practical effect in settling the rights of litigants.”
Progressive Specialty Ins. Co. v. Farmers Ins. Co. of Ariz., 143 Ariz. 547,
548, 694 P.2d 835, 836 (App. 1985). Nor is it our role to “act as a
fountain of legal advice.” Contempo-Tempe Mobile Home Owners
Ass’n v. Steinert, 144 Ariz. 227, 229-30, 696 P.2d 1376, 1378-79 (App.
1985). However, we may elect to consider issues that have become
moot “‘if there is either an issue of great public importance or an
issue capable of repetition yet evading review.’” Bank of New York
Mellon v. De Meo, 227 Ariz. 192, ¶ 8, 254 P.3d 1138, 1140 (App. 2011),
quoting Phoenix Newspapers, Inc. v. Molera, 200 Ariz. 457, ¶ 12, 27 P.3d
814, 817 (App. 2001).

¶9 The dispute that prompted Kondaur’s claims against
PCSO was resolved when the Whites were evicted from their home
in July 2011. Indeed, Kondaur acknowledged at oral argument on
its motion for summary judgment that, as a result of the “Whites
hav[ing] been locked out . . . the issues regarding the execution of
the writ” are “moot,” and confirmed that it was “seeking declaratory
judgment not so much for this case, as much as to have guidance for
how the sheriff’s office should be functioning in future cases.” It
nevertheless urges us on appeal to “issue a published opinion
detailing [our] interpretation of . . . Arizona eviction procedures”
and providing “clear direction on how these issues should be dealt
with” because they arise with “frequen[cy] . . . in Arizona.” Given
the undisputed absence of a live controversy, our consideration of
the merits hinges on the application of one of the exceptions to the
mootness doctrine identified above. See, e.g., Contempo-Tempe, 144
Ariz. at 230, 696 P.2d at 1379. We conclude that neither applies here.

¶10 The exception courts have carved out for issues of
“great public importance” typically applies when an “issue . . . will
have broad public impact beyond resolution of the specific case.”
Cardoso v. Soldo, 230 Ariz. 614, ¶ 6, 277 P.3d 811, 814 (App. 2012). We
generally decline to apply this exception where an appellant’s
argument is grounded on events that occurred in the specific case.
Id. Here, despite Kondaur’s attempt to portray the issues raised in
the trial court’s declaratory judgment as broadly relevant, it is
apparent from the ruling that they reflect a complicated progression
of interwoven facts dependent on specific responses to a writ of

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 KONDAUR CAPITAL CORP. v. PINAL CO.
Opinion of the Court

restitution by the occupants of a property and the executing
authority. More importantly, Issues 1, 5, and 7 were resolved
through straightforward application of the statutory language,
confirming that this case is not appropriate for discretionary review
pursuant to the “public importance” exception because it does not
involve a significant question. See London v. Broderick, 206 Ariz. 490,
¶ 7, 80 P.3d 769, 771 (2003) (deciding a moot issue “because the issue
it raises is important”); Big D Constr. Corp. v. Court of Appeals, 163
Ariz. 560, 563, 789 P.2d 1061, 1064 (1990) (courts will consider
“significant questions” pursuant to public importance exception to
mootness doctrine).

¶11 Nor do we find that discretionary review is appropriate
pursuant to the exception applied to issues that are “‘capable of
repetition yet evading review.’” Bank of New York Mellon, 227 Ariz.
192, ¶ 8, 254 P.3d at 1140, quoting Phoenix Newspapers, Inc., 200 Ariz.
457, ¶ 12, 27 P.3d at 817. Although Kondaur cites “ongoing
disputes” with “[PCSO] and other Sheriff Departments” and argues
broadly that “these issues continually arise in Arizona,” it has failed
to identify any other properties it owns or intends to purchase in
Pinal County. Accordingly, there is no support for a conclusion that
the parties’ underlying dispute is “capable of repetition.” See
5 Am. Jur. 2d App. Rev. § 602 (mootness doctrine limited to
situations where same complaining party will be subjected to same
action again); see also Murphy v. Hunt, 455 U.S. 478, 482-83 (1982)
(“capable of repetition yet evading review” exception requires
“reasonable expectation . . . that the same controversy will recur
involving the same complaining party”); Funbus Sys., Inc. v. Cal. Pub.
Utils. Comm’n, 801 F.2d 1120, 1131 (9th Cir. 1986) (exception applies
where “plaintiff can show that he will again be subject to the same
injury” not where “other persons may litigate a similar claim”).

¶12 In any event, Kondaur has not demonstrated that these
issues are likely to evade review if they arise again in the context of
an eviction action. Issues are typically characterized as “evading
review” where time constraints prevent an appeal from being heard.
Compare Cardoso, 230 Ariz. 614, ¶¶ 7-8, 277 P.3d at 814 (declining to
apply exception where challenged order of protection was effective
for one year after service); with KPNX Broad. v. Superior Court, 139

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Ariz. 246, 250, 678 P.2d 431, 435 (1984) (applying exception to case
involving public release of courtroom sketches based on short
duration of criminal trials); Phoenix Newspapers, Inc., 200 Ariz. 457,
¶ 14, 27 P.3d at 817 (claim that newspaper was being denied access
to records could evade review because of short time between
creation of records and public release); State v. Sirny, 160 Ariz. 292,
293, 772 P.2d 1145, 1146 (App. 1989) (considering challenge to statute
authorizing defendant’s expired three month jail sentence based on
“relative brevity of the sentences imposed under the statute”). Here,
more than a year elapsed between the filing of Kondaur’s action
against the Whites and their ultimate eviction from the property.
Had Kondaur moved for preliminary injunctive relief during that
time, see Rule 65, Ariz. R. Civ. P., these issues likely could have been
resolved on appeal before they had become moot, see
§ 12-2101(A)(5)(b) (denial of injunctive relief is appealable order);
Ariz. Citizens Clean Elections Comm’n v. Brain, 233 Ariz. 280, ¶ 9, 311
P.3d 1093, 1097 (App. 2013), review granted in part (Ariz. Nov. 26,
2013). The exception for issues that may evade appellate review is
therefore inapt.

Disposition

¶13 For all of the foregoing reasons, we decline to consider
the issues presented by this appeal, which is hereby dismissed as
moot.

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