dissenting in part, concurring in part.
¶ 45 With respect, I dissent from the majority’s resolution of Minjares’ waiver argument. In my view, the State waived any argument it was entitled to a reduction in the interest rate under A.R.S. § 41-622(F) because it failed to raise the applicability of that statute before the superior court entered final judgment in the first appeal. “Waiver is either the express, voluntary, intentional relinquishment of a known right or such conduct as warrants an inference of such an intentional relinquishment.” Am. Cont’l Life Ins. Co. v. Ranier Constr. Co., 125 Ariz. 53, 55, 607 P.2d 372, 374 (1980). Further, “waiver by conduct must be established by evidence of acts inconsistent with an intent to assert the right.” Id. That evidence exists in this case.
¶ 46 Specifically, the State could have raised its right to a lower interest rate under the statute before judgment was entered. Presumably, the State was on notice of the statute before judgment was entered and, presumably, understood it would be entitled to the lower interest rate if it elected to appeal. The State, thus, could have raised and ensured its right to rely on the statute by objecting to the proposed form of judgment Minjares lodged with the court — 36 days before it was entered by the court. It could have asked the court to include a provision in the judgment that, if the State appealed, the interest rate would be modified to accrue on the judgment at the average yield offered by United States treasury bills during the pendency of the appeal, and that upon issuance of the mandate, interest would accrue at the legal rate of 10% per annum. The inclusion of such a provision would have avoided this appeal and its attendant costs to the taxpayers of the State of Arizona.
¶ 47 Although waiver is generally viewed as a question of fact to be determined by the trier of fact, here the facts are uncontroverted. The State could have raised the interest issue before entry of judgment. Accordingly, because it failed to do so, I part company with the majority’s conclusion the State did not waive its right to rely on A.R.S. § 41-622(F) as a matter of law.9
¶ 48 Waiver aside, I agree with the majority’s construction of A.R.S. § 41-622(F).
. Because I believe the State waived its right to rely on this statute, I do not need to address Minjares’ other arguments.