Opinion
No. 1 CA-CV 15-0291
12-06-2016
POWER ROAD-WILLIAMS FIELD, LLC, an Arizona limited liability company, Plaintiff/Appellant, v. TOWN OF GILBERT, an Arizona municipality; CITY OF MESA, an Arizona municipality; COUNTY OF MARICOPA, a political subdivision of the State of Arizona, Defendants/Appellees.
COUNSEL Francis J. Slavin, P.C., Phoenix By Francis J. Slavin, Daniel J. Slavin Counsel for Plaintiff/Appellant Grasso Law Firm, P.C., Chandler By Robert Grasso, Jr., Kim S. Alvarado Counsel for Defendant/Appellee Town of Gilbert Dickinson Wright PLLC, Phoenix By Gary L. Birnbaum, David J. Ouimette Counsel for Defendant/Appellee City of Mesa Maricopa County Attorney's Office, Phoenix By J. Kenneth Mangum Counsel for Defendant/Appellee Maricopa County
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CV2013-005862
The Honorable James T. Blomo, Judge
AFFIRMED
COUNSEL Francis J. Slavin, P.C., Phoenix
By Francis J. Slavin, Daniel J. Slavin
Counsel for Plaintiff/Appellant Grasso Law Firm, P.C., Chandler
By Robert Grasso, Jr., Kim S. Alvarado
Counsel for Defendant/Appellee Town of Gilbert Dickinson Wright PLLC, Phoenix
By Gary L. Birnbaum, David J. Ouimette
Counsel for Defendant/Appellee City of Mesa Maricopa County Attorney's Office, Phoenix
By J. Kenneth Mangum
Counsel for Defendant/Appellee Maricopa County
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined. SWANN, Judge:
¶1 Appellant Power Road-Williams Field, LLC ("Power") challenges the superior court's ruling that its second lawsuit against the Town of Gilbert, the City of Mesa, and Maricopa County (collectively "Appellees") over construction of an intersection was untimely under A.R.S. § 12-821. For the reasons set forth below, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Several years ago, Appellees undertook a project to widen and improve Power Road between Pecos Road and the San Tan Freeway. Phase III of the project included changes to the intersection of Power Road and Williams Field Road. Power owns approximately 73 acres of land at the northwest corner of that intersection.
¶3 Power objected to Phase III, arguing that Appellees' preferred design for the intersection — the "couplet" design — "would significantly reduce the development potential and economically viable uses of [Power's] Parcel and similar parcels." Power sued Appellees in March 2011 seeking to stop Phase III construction before it began. In that suit, Power alleged that Phase III did not conform with the Town of Gilbert's "General Plan," that Gilbert did not submit the "couplet" design to its municipal planning agency for review as required by A.R.S. § 9-461.07(B), that Appellees failed to enter into an intergovernmental agreement ("IGA") under A.R.S. § 11-952, and that implementing the "couplet" design was an arbitrary and irrational exercise of police power. Power did not seek damages.
¶4 Phase III began in December 2011. Appellees then entered into an IGA for the project, which was recorded on May 10, 2012. Power's counsel received a fully-executed copy of the IGA on May 16, 2012. Approximately two weeks later, the superior court dismissed most of the complaint, finding that Appellees were not required to enter into an IGA. The court then granted summary judgment to Appellees on the remaining claims in January 2013. Power appealed, and we dismissed its appeal as moot. Power Rd.-Williams Field, LLC v. Town of Gilbert, 1 CA-CV 13-0609, 2015 WL 159698 (Ariz. App. Jan. 13, 2015) (hereinafter "Power I"). We noted that Power's only requested relief was to stop the project, but that it failed to request a preliminary injunction or stay, and that construction was already complete. Id. at *2, ¶ 6.
¶5 Power filed this lawsuit on May 15, 2013, alleging negligence and that Appellees' IGA did not comply with A.R.S. § 9-461.11(F) because it lacked, among other things, a method of assuring that property owners were "afforded the opportunity at a public hearing held prior to adoption and implementation of the joint development plan to present information and evidence related to any alleged deprivation of the economically viable use of the property." A.R.S. § 9-461.11(F)(1)(d). Power claimed that the absence of these proceedings reduced the economic value of its land by over $7 million. Power also sought damages under 42 U.S.C. § 1983 for violation of the Fourteenth Amendment's due process requirements. The Town of Gilbert removed the case to the federal district court, which dismissed the federal claims. Power Rd.-Williams Field LLC v. Gilbert, 14 F. Supp. 3d 1304, 1307, 1311-13 (D. Ariz. 2014) (hereinafter "Power II"). The federal court then remanded the action back to the superior court. Id. at 1313.
¶6 The superior court granted summary judgment for Appellees, finding that Power's claims were time-barred under A.R.S. §§ 12-821 and -821.01 because the claims accrued no later than February 2012, when Power knew construction of the "couplet" design was underway. The superior court entered final judgment pursuant to Ariz. R. Civ. P. 54(c), and Power timely appeals.
DISCUSSION
¶7 We review de novo whether summary judgment is warranted, including whether genuine issues of material fact exist and whether the trial court properly applied the law. Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42, 46, ¶ 16 (App. 2010). We construe all facts in favor of Power, the non-moving party. Melendez v. Hallmark Ins. Co., 232 Ariz. 327, 330, ¶ 9 (App. 2013).
¶8 Power filed the current lawsuit on May 15, 2013. The claims are untimely if they accrued before May 15, 2012. See A.R.S. § 12-821. A claim accrues under A.R.S. § 12-821.01(B) "when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage."
¶9 Accrual can be decided as a matter of law if the record shows when the plaintiff was "unquestionably . . . aware of the necessary facts underlying [its] cause of action." Thompson v. Pima County, 226 Ariz. 42, 46-47, ¶ 14 (App. 2010); see also Ins. Co. of N. Am. v. Superior Court (Montiel), 162 Ariz. 499, 502 (App. 1989) (holding that accrual is based on the plaintiff's knowledge of "the facts which give rise to the cause of action, not . . . the legal significance of such facts"), vacated on other grounds, 166 Ariz. 82 (1990). We review de novo the superior court's determination of when Power's claims accrued. Cook v. Town of Pinetop-Lakeside, 232 Ariz. 173, 175, ¶ 10 (App. 2013).
¶10 Power argues its claims did not accrue until its counsel received the fully-executed IGA on May 16, 2012, and discovered its alleged deficiencies. Power seeks a declaratory judgment that Appellees violated § 9-461.11. But even if the IGA was required, Power was aware of any failure to comply with § 9-461.11(F) when construction began without an IGA in place. Power could have tried to halt the project before or shortly after construction began, but it did not. Power I, 2015 WL 159698, at *2, ¶ 6. Therefore, any damages related to the IGA (or its absence) accrued, at the latest, when construction began.
Power's argument can fairly be characterized as a collateral attack on the court's decision in Power I. The missing IGA provisions could only have caused Power's alleged damages if its adoption or implementation were required for this project. The superior court held in Power I that they were not, and the appellate process in that case has ended.
¶11 Even if Appellees were required to comply with § 9-461.11 when they entered into the optional IGA, the record shows none of Power's alleged damages stem from the IGA. Section 9-461.11 only requires that Appellees postpone construction "pending investigation and resolution of the alleged deprivation." A.R.S. § 9-461.11(F)(1)(d). Power does not allege Appellees failed to postpone construction, nor did Power seek an injunction on construction when they filed this case. Power's only monetary damages flow from implementation of the "couplet" design. However, Power admits it knew Appellees intended to proceed with the "couplet" design as early as 2010. See KCI Rest. Mgmt. LLC v. Holm Wright Hyde & Hays PLC, 236 Ariz. 485, 488, ¶ 12 (App. 2014) ("An admission in a pleading can bind a party."). And Power admits it knew construction of the "couplet" design was underway by February 2012. Therefore, Power's claims accrued in February 2012 at the latest. See A.R.S. § 12-821.01(B). The superior court correctly determined that Power's suit was time-barred under § 12-821.
We do not decide if Appellees violated the statute but assume as much for this analysis. See Melendez, 232 Ariz. at 330, ¶ 9. Power admits it attended and spoke at public hearings before Appellees adopted the IGA. Power also gave Appellees estimates of its alleged economic deprivation. We do not decide whether this is sufficient to comply with the requirements of § 9-461.11, but we note that the statute only requires "investigation and resolution." A.R.S. § 9-461.11(F)(1)(d). It does not necessarily require a resolution that satisfies the aggrieved party's alleged deprivation. --------
CONCLUSION
¶12 We affirm the judgment and award Appellees their costs incurred on appeal contingent upon their compliance with ARCAP 21.