Opinion
No. 2 CA-CV 2016-0012
02-13-2017
MORLEY WEITZMAN, AN UNMARRIED MAN, Plaintiff/Appellant, v. PIMA COUNTY, A BODY POLITIC, Defendant/Appellee.
COUNSEL Morley J. Weitzman, Tucson In Propria Persona Barbara LaWall, Pima County Attorney By David W. Krula, Deputy County Attorney, Tucson Counsel for Defendant/Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. C20130035
The Honorable Catherine M. Woods, Judge
The Honorable Christopher P. Staring, Judge
AFFIRMED
COUNSEL Morley J. Weitzman, Tucson
In Propria Persona Barbara LaWall, Pima County Attorney
By David W. Krula, Deputy County Attorney, Tucson
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Howard and Chief Judge Eckerstrom concurred. VÁSQUEZ, Judge:
¶1 In this property-tax appeal, Morley Weitzman challenges the trial court's grant of summary judgment in favor of Pima County. He argues that the court's review of the record was incomplete and inaccurate and that the court made various legal errors. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to Weitzman, the party against whom summary judgment was entered. See Aida Renta Trust v. Maricopa Cty., 221 Ariz. 603, ¶ 5, 212 P.3d 941, 946 (App. 2009). However, the material facts are undisputed. In February 2012, the Pima County Assessor mailed Weitzman a notice of value for his residential real property. For tax year 2013, the notice listed a full cash value of $124,500, a limited property value of $114,291, a legal class of 2, and an assessment ratio of sixteen percent.
¶3 The following month, Weitzman filed a petition for review with the assessor. Under the "basis for this petition," Weitzman explained:
Pima County Assessor visited and erroneously assessed the property in November 2011 as Use Code .0910 - Salvage Residential while I was living in the house. The property should be assessed as previously, Use Code 0100 - Residential Site Built Residence with a corresponding ASMT Ratio 10.0 . . . since this property is my primary residence.Under "owner's opinion of value," Weitzman listed $124,500 for full cash value and $114,291 for limited property value—the same as those on the notice. After a field check of the property, the assessor issued a notice of decision recommending "no change" to the notice of value.
¶4 Weitzman next filed an on-the-record appeal before the Arizona State Board of Equalization. He explained that he was "appealing the Assessor's decision to arbitrar[ily] change the Legal Class Status of [his] property from 3 to 2." In August 2012, following a hearing, the board issued a notice of decision in which it changed the classification of the property from legal class 2 to legal class 3 and lowered the assessment ratio from sixteen to ten percent. However, in November 2012, the board issued a "corrected" notice of decision, reverting the property's classification to a legal class 2 and the assessment ratio to sixteen percent, as in the assessor's original notice of value.
¶5 In January 2013, Weitzman filed a complaint in the superior court, appealing "the valuation and classification of his real property." Shortly thereafter, the board issued another "corrected" notice of decision, again changing the classification of the property to legal class 3 and lowering the assessment ratio to ten percent. The county moved to dismiss the complaint, asserting that the board's January 2013 decision granted Weitzman "the relief he seeks . . . in regard to the classification (or assessment ratio)" of the property. The county also maintained that, because Weitzman did not challenge the full cash value or limited property value before the assessor or the board, the trial court lacked jurisdiction over—or Weitzman was otherwise barred from challenging—the valuation of the property. After oral argument, the court denied the motion, reasoning that the facts in the complaint, "however weak or strong they may be, establish the formal sufficiency of the claim for relief."
Weitzman's complaint named the board, the State of Arizona, the Arizona Department of Revenue, and the county as defendants. However, the trial court dismissed the department of revenue, and the parties stipulated to dismiss the board and the state.
¶6 Eleven months later, the county filed a motion for summary judgment, again arguing that the board's January 2013 decision "provided . . . Weitzman with all the relief he had requested." In granting the motion, the trial court explained that, because Weitzman had petitioned the assessor and appealed to the board concerning the legal classification and not the valuation of his property, he had "received all of the relief that he sought." This appeal followed the denial of Weitzman's motion for a new trial. We have jurisdiction pursuant to A.R.S. §§ 12-120.21 and 12-2101(A)(1). Cf. Ariz. Dep't of Revenue v. S. Point Energy Ctr., LLC, 228 Ariz. 436, ¶ 9, 268 P.3d 387, 390 (App. 2011).
Discussion
¶7 In challenging the trial court's grant of summary judgment, Weitzman raises several arguments, claiming the record does not support it and asserting the court committed legal error. Summary judgment is appropriate "if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). We review de novo a grant of summary judgment. Hourani v. Benson Hosp., 211 Ariz. 427, ¶ 13, 122 P.3d 6, 11 (App. 2005).
¶8 Weitzman first argues the trial court erred in granting summary judgment because its decision "was based on an incomplete [and] erroneous" record. Specifically, he points to two documents that did not appear in the superior court clerk's index of record until he requested a correction of the record while this appeal was pending. See Ariz. R. Civ. App. P. 11(g). However, Weitzman's assertion that the court "never saw and/or reviewed" these documents is entirely speculative.
¶9 The purportedly missing documents included "Plaintiff's Separate Statement of Facts in Support of his Response to Motion for Summary Judgment and Plaintiffs Cross-Motion for Partial Summary Judgment on Excessive Valuation and Costs and Attorney's Fees" and "Reply and Objections to Pima County's Statement of Facts in Response to Plaintiff's Cross-Motion for Summary Judgment and Plaintiff's Request for Costs and Attorney's Fees." As the county points out, despite the fact that the documents initially were omitted from the superior court clerk's index of record, the mailing certificates at the end of both documents show that they were "mailed/delivered" to the judge that ruled on the motion for summary judgment the same day that Weitzman contends they were filed with the clerk. And at the hearing on the motion for summary judgment, the judge and the parties discussed Weitzman's affidavit, which was attached to one of those documents—a clear indication that the judge had in fact also received and reviewed the documents.
¶10 In a related argument, Weitzman contends the trial court erred by granting summary judgment because he "presented at least 37 'genuine disputes to material facts' that can be found throughout the record." And based on the record's "numerous errors and document omissions," Weitzman claims the court failed to consider these disputed facts. However, Weitzman did not raise this argument below, and it is therefore waived. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994). In any event, we disagree with Weitzman that he disputed "material facts." The court correctly identified the material facts, which we have outlined above, and Weitzman did not dispute them.
¶11 Weitzman next asserts that the trial court erred in granting summary judgment because it "erroneously and incorrectly read [his] denial to Request for Admission No. 13 as an admission." The county augmented its statement of facts in support of its motion for summary judgment by attaching Weitzman's answers to the county's requests for admission. Weitzman denied Request for Admission No. 13, which read:
[T]he Corrected Notice of Decision with a date of 01/15/13 the Arizona State Board of Equalization issued to Plaintiff Morley Weitzman pertaining to Plaintiff's On the Record "OTR" appeal for tax year 2013 . . . granted all the relief Plaintiff requested in his On the Record "OTR" appeal to the Board by changing the classification from legal class 2 to legal class 3 and changing
the assessment ratio from 16.0% to 10.0%, while leaving the full cash value unchanged from the (notice of value) full cash value of $124,500.Weitzman attached a "Response to Request for Admissions," explaining each of his denials. As to No. 13, he stated: "This was a change in classification only. It did not compensate Plaintiff for his costs and attorney's fees under A.R.S. § 12-348 and was not a binding judicial determination." In granting the motion for summary judgment, the trial court noted, "Request for Admission No. 13, for example, demonstrates that . . . Weitzman has received all of the relief he requested, even when . . . Weitzman's response is considered."
¶12 Based on the trial court's reference to Request for Admission No. 13, Weitzman maintains the court "erroneously read an obvious denial of a fact as an admission and thus erroneously b[]ased his decision . . . on an error." The record belies Weitzman's contention for two reasons. First, Weitzman responded to the county's requests for admission more than forty days after service; therefore, they were deemed admitted. See Ariz. R. Civ. P. 36(a); DeLong v. Merrill, 233 Ariz. 163, ¶ 10, 310 P.3d 39, 42 (App. 2013). Second, in its ruling, the court specifically acknowledged Weitzman's "response" included with his answer to Request for Admission No. 13.
Rule 36(a) was amended effective January 1, 2017. Ariz. Sup. Ct. Order R-16-0010 (Sept. 2, 2016). We cite the version of the rule in effect at the time of this litigation. In relevant part, it provided: "Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within (40) days after service of the request, . . . the party to whom the request is directed serves upon the party requesting the admission a written answer or objection . . . ." Ariz. R. Civ. P. 36(a). Once admitted, the matter is "conclusively established unless the court on motion permits withdrawal or amendment of the admission," Ariz. R. Civ. P. 36(c), neither of which occurred here.
¶13 Weitzman next argues that the trial court erred in granting summary judgment because "it [was] barred by doctrines of 'res judicata,' 'collateral estoppel,' and 'law of the case.'" He explains that "the essence" of the motion for summary judgment was "exactly the same" as the motion to dismiss, which the court had previously denied. We address the applicability of each of the doctrines in turn.
¶14 "Under the doctrine of res judicata, [or claim preclusion,] a judgment 'on the merits' in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action." Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573, 716 P.2d 28, 30 (1986); see Howell v. Hodap, 221 Ariz. 543, n.7, 212 P.3d 881, 884 n.7 (App. 2009). Collateral estoppel, or issue preclusion, on the other hand, applies "when the issue or fact to be litigated was actually litigated in a previous suit, a final judgment was entered, and the party against whom the doctrine is to be invoked had a full opportunity to litigate the matter and actually did litigate it, provided such issue or fact was essential to the prior judgment." Chaney Bldg. Co., 148 Ariz. at 573, 716 P.2d at 30. However, both res judicata and collateral estoppel require a final judgment. Ariz. Downs v. Superior Court, 128 Ariz. 73, 76, 623 P.2d 1229, 1232 (1981). Here, the trial court's denial of the county's motion to dismiss did not resolve the case and, thus, was not a final judgment. Cf. State ex rel. Dep't of Econ. Sec. v. Powers, 184 Ariz. 235, 236, 908 P.2d 49, 50 (App. 1995) (describing denial of motion to dismiss as interlocutory order, not final judgment). Consequently, the doctrines of res judicata and collateral estoppel do not apply.
¶15 "The doctrine referred to as 'law of the case' describes the judicial policy of refusing to reopen questions previously decided in the same case by the same court or a higher appellate court." Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 Ariz. 275, 278, 860 P.2d 1328, 1331 (App. 1993). But "[w]hen, as in this case, we apply the doctrine to decisions of the same court, we treat law of the case as a procedural doctrine rather than as a substantive limitation on the court's power." Id. at 278, 860 P.2d at 1331. The doctrine "does not prevent a judge from reconsidering nonfinal rulings." Zimmerman v. Shakman, 204 Ariz. 231, ¶ 15, 62 P.3d 976, 981 (App. 2003). As we stated above, the trial court's ruling on the county's motion to dismiss was not a final ruling.
¶16 Additionally, as the trial court pointed out, the legal standards for deciding motions to dismiss and motions for summary judgment are different. In deciding a motion to dismiss for failure to state a claim, the court assumes the facts alleged in the complaint are true, and it will not dismiss the action unless it is satisfied that, as a matter of law, the plaintiff would not be entitled to relief under any interpretation of the facts susceptible of proof. See Ariz. R. Civ. P. 12(b)(6); Fid. Sec. Life Ins. Co. v. Ariz. Dep't of Ins., 191 Ariz. 222, ¶ 4, 954 P.2d 580, 582 (1998). Such motions typically are filed in the early stages of a case, and the court considers only the facts alleged in the complaint. See Ariz. R. Civ. P. 12(d). In contrast, summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as matter of law. Ariz. R. Civ. P. 56(a); Hourani, 211 Ariz. 427, ¶ 13, 122 P.3d at 11. And motions for summary judgment generally involve the parties presenting and the court considering additional evidentiary material beyond the allegations in the complaint. Cf. Workman v. Verde Wellness Ctr., Inc., 240 Ariz. 597, ¶ 10, 382 P.3d 812, 816 (App. 2016) (distinguishing motions to dismiss and for summary judgment on basis of matters considered). Consequently, although motions to dismiss and motions for summary judgment may have the same outcome—dismissal of the case—they involve different legal questions, and law of the case does not apply.
¶17 Weitzman lastly contends that the trial court erred in granting summary judgment because the court "applied the wrong law" and the judgment "is not supported by the evidence." Specifically, Weitzman argues that he did not waive his right to challenge the property valuation by failing to raise it before the assessor or the board.
¶18 Our case law is replete with examples of courts deeming arguments waived when they are raised for the first time on appeal. See, e.g., Magma Copper Co. v. Indus. Comm'n, 139 Ariz. 38, 44, 676 P.2d 1096, 1102 (1983); Marquette Venture Partners II, L.P. v. Leonesio, 227 Ariz. 179, ¶ 21, 254 P.3d 418, 423 (App. 2011). The reasoning behind this principle is that the lower courts—or administrative agencies—should "have an opportunity to address all issues on their merits." Cont'l Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382, ¶ 12, 258 P.3d 200, 204 (App. 2011). This reasoning applies equally in a property-tax appeal. Here, Weitzman not only waived any challenge to the assessor's valuation by not raising it at any stage below, he also expressly agreed with that valuation in his petition to the assessor. See Black v. Perkins, 163 Ariz. 292, 293, 787 P.2d 1088, 1089 (App. 1989) ("When the parties have framed the issues for resolution, they may not change them absent an amendment of the pleadings or trial of the issue by consent. A party so bound is often said to have made a judicial admission.").
¶19 Weitzman nevertheless relies on Sempre Ltd. Partnership v. Maricopa County, 225 Ariz. 106, 235 P.3d 259 (App. 2010), to argue that he has a "direct right to appeal" a property valuation to the superior court "at any time." In that case, Sempre filed an action in tax court to challenge the Maricopa County Assessor's valuation of its property. Id. ¶¶ 2-3. The tax court granted the county's motion to dismiss for lack of jurisdiction because Sempre had failed to seek, much less exhaust, its administrative remedies before filing an appeal with the tax court. Id. ¶¶ 3-4. This court, however, reversed the dismissal, concluding that "a taxpayer such as Sempre need not first seek administrative review before filing a direct appeal in the tax court." Id. ¶ 1.
There are two methods of challenging the assessor's valuation or classification of property: administrative review, A.R.S. §§ 42-16051 to 42-16056, and direct appeal to the court, A.R.S. § 42-16201. Under the administrative-review process, a property owner may appeal the assessor's valuation or classification to the State Board of Equalization or superior court. A.R.S. § 42-16056. If the appeal is filed with the board and the owner is dissatisfied with the board's decision, he or she may file an appeal with the superior court. A.R.S. § 42-16168. In the direct-appeal process, a property owner who is not satisfied with the assessor's valuation or calculation may appeal directly to the superior court. A.R.S. § 42-16201.
"A court appeal relating to valuation or classification of property is commenced by filing a notice of appeal with either the tax court or the superior court . . . ." A.R.S. § 42-16207(A).
¶20 The reasoning in Sempre is inapplicable here. Unlike Sempre, Weitzman first sought administrative review before appealing to the superior court. He therefore needed to challenge the assessor's valuation in his petition for review and before the board to preserve the issue on appeal to the superior court. See A.R.S. § 42-16056(D) ("A person shall not raise any issue if the issue was not included in the petition filed under this article.").
¶21 To the extent Weitzman is suggesting he was entitled to bifurcate the issues, raising classification as part of the administrative review and valuation in a direct appeal, we disagree. In Berge Ford, Inc. v. Maricopa County, 172 Ariz. 483, 485, 838 P.2d 822, 824 (Tax Ct. 1992), the tax court determined that a taxpayer cannot appeal valuation and classification independently of the other, thereby preserving the right to file a separate appeal on the other issue. Thus, the trial court properly concluded that Weitzman waived any challenge to the valuation of his property in his appeal of the board's decision. Accordingly, the court did not err in granting summary judgment in favor of the county. See Hourani, 211 Ariz. 427, ¶ 13, 122 P.3d at 11.
In addition, as the county points out, if we treat Weitzman's appeal to the superior court as a direct appeal on valuation, it was untimely. See A.R.S. § 42-16201(A) (property owner must appeal directly to court on or before December 15). Weitzman did not file his complaint in the trial court until January 2013. --------
Attorney Fees
¶22 Weitzman has requested his attorney fees on appeal pursuant to A.R.S. § 12-348. We deny his request because he is not the prevailing party and he is, in any event, self-represented at this stage of the proceedings. Cf. Hunt Inv. Co. v. Eliot, 154 Ariz. 357, 362, 742 P.2d 858, 863 (App. 1987) (self-represented litigant not entitled to attorney fees). Weitzman also appears to be requesting that this court award him the attorney fees and costs he incurred in the trial court, when he was represented by counsel. However, because Weitzman was not the successful party below, the trial court denied his request. On appeal, Weitzman offers no meaningful argument that the court's determination was erroneous. See Ariz. R. Civ. App. P. 13(a)(7). We therefore deem any such argument waived. See Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 2007).
Disposition
¶23 For the foregoing reasons, we affirm.