Power v. Gilbert ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
POWER ROAD-WILLIAMS FIELD, LLC, an Arizona limited liability
company; GEORGE M. SIEGELE; and KEITH PULVER,
Plaintiffs/Appellants,
v.
TOWN OF GILBERT, an Arizona municipality, and its members of its
counsel acting in their official capacity, JOHN W. LEWIS, JENN
DANIELS, EDDIE COOK, VICTOR PETERSEN, JOHN SENTZ, JORDAN
RAY, and BEN COOPER; CITY OF MESA, an Arizona municipality;
COUNTY OF MARICOPA, a political subdivision of the State of Arizona,
Defendants/Appellees.
No. 1 CA-CV 13-0609
FILED 1-13-2015
Appeal from the Superior Court in Maricopa County
No. CV2011-005700
The Honorable George H. Foster, Jr., Judge
APPEAL DISMISSED AS MOOT
COUNSEL
Francis J. Slavin, P.C., Phoenix
By Francis J. Slavin, Ellen B. Davis
Counsel for Plaintiffs/Appellants
Grasso Law Firm, P.C., Chandler
By Robert Grasso, Jr., Jenny J. Winkler
Counsel for Defendants/Appellees Town of Gilbert and all named Gilbert Officials
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, James Fritz
Counsel for Defendant/Appellee Maricopa County
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Randall M. Howe joined.
P O R T L E Y, Judge:
¶1 Power Road-Williams Field, LLC, an Arizona limited liability
company, George M. Siegele, and Keith Pulver (collectively “Appellants”)
appeal the dismissal of Counts One (failure to conform to the Gilbert
General Plan), Three (failure to enter into an intergovernmental agreement)
and Four (arbitrary and irrational exercise of police powers) of their First
Amended Complaint pursuant to Arizona Rule of Civil Procedure (“Rule”)
12(b)(6) for failure to state a claim, and the summary judgment granted in
favor of the Town of Gilbert, the City of Mesa and Maricopa County
(collectively “Appellees”) as to Count Two (failure to follow statutory
procedures). For the following reasons, we dismiss the appeal.
PROCEDURAL BACKGROUND
¶2 Appellees were engaged in a multi-phased, multi-year project
to widen and improve a ten-mile stretch of Power Road from Baseline Road
to Chandler Heights Road. Appellants disagreed with the Phase III (“the
Project”) design of the multi-phased project, which encompassed the
intersection of Power Road and Williams Field Road. After lobbying
unsuccessfully to persuade Appellees to choose a different design,
Appellants sued seeking to stop the Project. Appellants, however, did not
seek a preliminary injunction or other stay of construction pending the
outcome of the litigation.
¶3 After Appellants were allowed to amend their complaint,
Appellees successfully moved to dismiss three of four counts of the
amended complaint for failing to state a claim for which relief could be
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POWER et al. v. GILBERT et al.
Decision of the Court
granted under Rule 12(b)(6). The parties then filed cross-motions for
summary judgment on the remaining count, and the court subsequently
entered judgment in favor of Appellees. The Project continued during the
course of the litigation and is now complete. Appellants appealed and we
have jurisdiction under Arizona Revised Statutes (“A.R.S.”) section
12-2101(A)(1).1
DISCUSSION
¶4 Appellants, who sought declaratory judgment and injunctive
relief, argue that the trial court erred in granting Appellees’ motion to
dismiss and motion for summary judgment because (1) the Project failed to
conform to the Gilbert General Plan; (2) Appellees failed to comply with the
reviews and reports requirements under A.R.S. § 9-461.01; (3) Appellees
failed to adopt an intergovernmental agreement; and (4) Appellants were
entitled to a trial on their claim for abuse of power. Appellees contend,
however, that this appeal is moot because the Project has been completed.2
We agree.
¶5 Unlike federal courts, our state courts do not have a
“constitutional provision constraining it to consider only cases or
controversies.” Fraternal Order of Police Lodge 2 v. Phoenix Emp. Relations Bd.,
133 Ariz. 126, 127, 650 P.2d 428, 429 (1982) (internal quotation marks
omitted). Our supreme court, however, has consistently held that state
courts will “refrain from considering moot or abstract questions.” Id.
Therefore, we will not decide a question that is unrelated to an actual
controversy or that is rendered moot by a change in circumstances. See id;
Contempo–Tempe Mobile Home Owners Ass’n v. Steinert, 144 Ariz. 227, 229,
696 P.2d 1376, 1378 (App. 1985).
¶6 Here, although Appellants objected to the split alignment
design of the Project, they did not seek a preliminary injunction or any other
stay to stop construction of the Project. As a result, the construction project
with the split alignment continued and is now complete. The Project’s
completion renders this appeal moot because the principal relief sought by
1We cite to the current version of the statute unless otherwise noted.
2 The Project construction began in June 2012 and was completed as of
June 2014. See http://mesaaz.gov/engineering/Projects/PowerRdImpr/
PowerRdImpr.aspx (“Project is complete.”).
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Decision of the Court
Appellants in their amended complaint — to “stop the Project”3 — is no
longer an available remedy. See ASH, Inc. v. Mesa Unified Sch. Dist. No. 4,
138 Ariz. 190, 191-92, 673 P.2d 934, 935-36 (App. 1983) (holding that
plaintiff’s appeal was moot where challenged contract had been fully
performed and plaintiff, in failing to seek any of the available procedural
remedies to stay performance of the contract pending litigation, had not
effectively preserved the issue on appeal); accord W. Sun Contractors Co. v.
Superior Court, 159 Ariz. 223, 227, 766 P.2d 96, 100 (App. 1988) (noting, while
issuing an interlocutory stay and granting expedited consideration of the
merits, that “[b]ecause of the peculiar nature of public contracts the courts
are loath to grant relief where such contracts have been fully performed
[and] . . . if no stay were issued, the completion of the work would moot
any relief”) (internal citations omitted).
¶7 Courts will only grant a declaratory judgment when there is
a justiciable issue between the parties. Thomas v. City of Phoenix, 171 Ariz.
69, 74, 828 P.2d 1210, 1215 (App. 1991). Moreover, Appellants’ failure to
seek to enjoin the construction before it was completed not only moots their
request for injunctive relief, but also their claim for declaratory relief. See
id. (“Courts will not hear cases that seek declaratory judgments that are
advisory or answer moot or abstract questions. Declaratory relief should
be based on an existing state of facts, not facts that may or may not arise in
the future.”) (internal citations omitted).
¶8 We can, however, decide an issue of law despite its mootness
if the matter is of considerable public importance or the principle involved
is a continuing one. State v. Superior Court, 104 Ariz. 440, 441, 454 P.2d 982,
983 (1969). However, we do not find that the circumstances of this case fall
within either exception. Although the issue involved in this case, the split
alignment design, is capable of repetition, we cannot say as a matter of law
that it will evade review. Further, given the completion of the project, the
question involved does not rise to a sufficient level of “public importance”
to be an exception to the mootness doctrine. See Camerena v. Dep’t of Pub.
Welfare, 106 Ariz. 30, 470 P.2d 111 (1970).
3The amended complaint sought the following relief: (1) a declaration that
the split alignment design was arbitrary and capricious, irrational and an
abuse of discretion; (2) an order enjoining the construction and other work
associated with the split alignment design; and (3) attorney’s fees and costs.
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Decision of the Court
CONCLUSION
¶9 Because the Project has been completed, Appellants’ appeal is
moot. Accordingly, we dismiss the appeal.
:ama
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