Opinion
No. 1 CA-CV 14-0466
11-24-2015
HOME BUILDERS ASSOCIATION OF CENTRAL ARIZONA, Plaintiff/Appellant, v. CITY OF SURPRISE, Defendant/Appellee.
COUNSEL Tiffany & Bosco, P.A., Phoenix By William M. Fischbach, Timothy A. LaSota Counsel for Plaintiff/Appellant Holm Wright Hyde & Hays PLC, Phoenix By Kirk H. Hayes, Justin D. Holm Counsel for Defendant/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV 2013-000383
The Honorable Arthur T. Anderson, Judge
REVERSED AND REMANDED
COUNSEL Tiffany & Bosco, P.A., Phoenix
By William M. Fischbach, Timothy A. LaSota
Counsel for Plaintiff/Appellant
Holm Wright Hyde & Hays PLC, Phoenix
By Kirk H. Hayes, Justin D. Holm
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined. THUMMA, Judge:
¶1 Plaintiff Home Builders Association of Central Arizona (Home Builders) appeals from the granting of a motion to dismiss the complaint as time-barred. For the reasons set forth below, the dismissal is reversed and this matter is remanded for further consideration consistent with this decision.
FACTS AND PROCEDURAL HISTORY
In reviewing a motion to dismiss, this court assumes as true the facts in the complaint and views them in the light most favorable to the plaintiff. Mintz v. Bell Atl. Sys. Leasing Int'l, Inc., 183 Ariz. 550, 552 (App. 1995).
¶2 Home Builders is a nonprofit corporation representing "homebuilders in Arizona that have paid and continue to pay" the City of Surprise's assessed development fees. In 2005, the City began building a new city hall complex, funding the project with money from the City's Capital Improvement Project (CIP) fund. In 2009, the City began using development fees, assessed against residential developers when a construction permit is issued, to replace CIP funds used to pay for the complex. See Ariz. Rev. Stat. (A.R.S.) § 9-463.05(A), (B)(10) (2015).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
¶3 Effective January 1, 2012, A.R.S. § 9-463.05 was amended to prohibit the use of development fees for the "[c]onstruction" of "public facilities." A.R.S. § 9-463.05(B)(5)(a); see also S.B. 1525, 50th Leg., 1st Reg. Sess. (Ariz. 2011). This prohibition did not apply to development fees used to "repay debt service obligations" for the construction of public facilities "financed before June 1, 2011." A.R.S. § 9-463.05(R)(1). On May 31, 2011, the City Council passed a resolution declaring the CIP funds used to build the complex were a loan incurred before June 1, 2011.
¶4 On January 14, 2013, Home Builders filed this case. As amended, Home Builders' complaint challenges the City's assessments, alleging those assessments violated A.R.S. § 9-463.05 (as amended effective January 1, 2012) and contains one count seeking declaratory and injunctive relief. The City moved to dismiss, arguing the complaint was time-barred by the one-year statute of limitations. Home Builders argued the complaint was timely filed and, in the alternative, it should be deemed timely under the "continuing violations" doctrine. After briefing and argument, the superior court granted the City's motion, finding Home Builders' complaint was time-barred and rejecting the application of the "continuing violations" doctrine. Home Builders then unsuccessfully moved for a new trial. This court has jurisdiction over Home Builders' timely appeal pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-2101(A)(1) and -120.21(A)(1).
DISCUSSION
¶5 To seek redress for allegedly improper assessments, Home Builders was required to bring this action "within one year after the cause of action accrues and not afterward." A.R.S. § 12-821. Such a cause of action accrues "when a plaintiff discovers or reasonably should have discovered" the harm and its cause. Stulce v. Salt River Project Agr. Imp. & Power Dist., 197 Ariz. 87, 90 ¶ 10 (App. 1999). To prevail on a motion to dismiss, the moving party must establish that the plaintiff would not be entitled to relief under any set of facts susceptible of proof. Fidelity Sec. Life Ins. Co. v. State, 191 Ariz. 222, 224 ¶ 4 (1998). Stated differently, a statute of limitations defense can succeed on a motion to dismiss only "where it conclusively appears from the face of the complaint that the claim is barred." Engle Bros. Inc. v. Superior Court In & For Pima County, 23 Ariz. App. 406, 408 (1975) (citations omitted). In addressing a motion to dismiss, the court assumes as true the facts alleged in the pleading, viewed in a light most favorable to Home Builders. Mintz, 183 Ariz. at 552. This court reviews de novo the grant of a motion to dismiss and when an action accrues. See Blankenbaker v. Marks, 231 Ariz. 575, 577 ¶ 6 (App. 2013); Cook v. Town of Pinetop-Lakeside, 232 Ariz. 173, 175 ¶ 10 (App. 2013).
Although the City argues on appeal that common law and statutory accrual principles differ, the record does not show the City pressed that argument with the superior court, meaning it is waived on appeal. See Continental Lighting & Contracting, Inc. v. Premier Grading & Utilities, LLC, 227 Ariz. 382, 386 ¶ 12 (App. 2011). At oral argument, the City argued Home Builders' cause of action accrued when the City passed the resolution on May 31, 2011. Although it may be that declaratory relief could have been obtained immediately after the passage of that resolution, the City has not shown how Home Builders' cause of action in this case accrued before assessments were imposed. See Canyon del Rio Inv'rs, L.L.C. v. City of Flagstaff, 227 Ariz. 336 (App. 2011). Finally, because no challenge was made regarding Home Builders' standing, any such issue is waived. See, e.g., In re Matter of Pima County Juvenile Severance Action No. S-114487, 179 Ariz. 86, 91 n.3 (1994); State v. B Bar Enters. Inc., 133 Ariz. 99, 101 n.2 (1982).
¶6 Home Builders argues the superior court erred in concluding the complaint was time-barred in its entirety. The minute entry found Home Builders
filed its Complaint on January 14, 2013. [Home Builders'] Amended Complaint does not allege a date after January 14, 2012 on which the City (for the first time post-January 1, 2012) assessed the Fee against one of its members. Thus, it conclusively appears from the face of the Amended Complaint that Plaintiff's claim is barred.The amended complaint relates back to the filing of the original complaint. See Ariz. R. Civ. P. 15(c). Accordingly, to be timely, the cause of action alleged in the amended complaint must have accrued less than one year before January 14, 2013. See A.R.S. § 12-821.
The parties do not dispute that A.R.S. § 12-821 applies. Whether that statute would apply to a party pressing a purely declaratory judgment claim, not based on specific assessments, and seeking purely prospective relief is an issue this court need not, and expressly does not, decide today. Similarly, given the analysis, this court need not, and expressly does not, address Home Builders' application of the "continuing violations" doctrine.
¶7 The appellate record does not provide any date certain when the assessments that provide the basis for Home Builders' challenge were made. Instead, Home Builders alleges that "[t]hroughout 2012 . . ., the City regularly and continuously" made the assessments. Although the superior court correctly found these allegations do not allege a date after January 14, 2012 on which the City (for the first time post-January 1, 2012) imposed an assessment against one of Home Builders' members, these allegations also do not allege a date before January 15, 2012 on which the City did so. Accordingly, from the face of the operative pleading, it is unclear whether Home Builders' challenge, to the extent it relies solely on the first assessment imposed in 2012, was timely or was time-barred. Given this uncertainty, the City did not show that Home Builders is not "entitled to relief under any interpretation of the facts susceptible of proof." Fidelity Sec., 191 Ariz. at 224 ¶ 4.
A document apparently showing information about specific assessments was submitted to the superior court, but then stricken. Accordingly, this court does not consider that document. --------
¶8 Along with this uncertainty, and regardless of whether the first assessment challenged occurred before January 15, 2012, the amended complaint alleges that each assessment is a separate wrong. Specifically, Home Builders alleges that the City made "a new and unlawful" assessment "whenever a construction permit issued for a dwelling unit." Reading the allegations in the light most favorable to Home Builders, Mintz, 183 Ariz. at 552, the complaint was timely to the extent it challenges assessments made on or after January 15, 2012, cf. Floyd v. Donahue, 186 Ariz. 409, 413-14 (App. 1996) (applying two-year limitations period and holding instances of abuse occurring more than two years before filing of complaint were time-barred, but those occurring within two years of filing of complaint were timely). Accordingly, the City has not shown that the operative complaint is time-barred in its entirety; if Home Builders is able to prove that one or more assessments occurred on or after January 15, 2012, Home Builder's cause of action is not time-barred to the extent that it challenges assessment(s) occurring on or after that date. See A.R.S. § 12-821.
CONCLUSION
¶9 The dismissal of Home Builders' action is reversed and this matter is remanded for further consideration consistent with this decision. The City's request for taxable costs on appeal is denied.