Gregory Real v. Keegan ( 2021 )


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  •                       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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    GREGORY REAL ESTATE AND
    MANAGEMENT LLC, Plaintiff/Appellant,
    v.
    MILES M. KEEGAN, et al., Defendants/Appellees.
    No. 1 CA-CV 20-0419
    FILED 03-30-2021
    Appeal from the Superior Court in Maricopa County
    No. CV2020-007629
    The Honorable Christopher A. Coury, Judge
    APPEAL DISMISSED AS MOOT
    COUNSEL
    Law Office of Brian K. Stanley, Phoenix
    By Brian K. Stanley
    Counsel for Plaintiff/Appellant
    Snell & Wilmer L.L.P., Phoenix
    By Brett W. Johnson, Colin P. Ahler, Tracy A. Olson, Ian R. Joyce
    Co-Counsel for Defendant/Appellee Governor Douglas A. Ducey
    Arizona Governor’s Office, Phoenix
    By Anni L. Foster, Nicole Ong Colyer
    Co-Counsel for Defendant/Appellee Governor Douglas A. Ducey
    GREGORY REAL v. KEEGAN, et al.
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge David B. Gass delivered the decision of the Court, in which
    Judge Michael J. Brown and Judge David D. Weinzweig joined.
    G A S S, Judge:
    ¶1            Gregory Real Estate and Management LLC brings this appeal
    challenging the constitutionality of Executive Orders 2020-14 and 2020-49,
    issued by Governor Douglas Ducey, which restrict enforcement of certain
    residential evictions. We dismiss the appeal as moot because the executive
    orders have expired and “our action as a reviewing court will have no effect
    on the parties.” See Cardoso v. Soldo, 
    230 Ariz. 614
    , 617, ¶ 5 (App. 2012).
    FACTUAL AND PROCEDURAL HISTORY
    ¶2             In March 2020, the Governor issued Executive Order 2020-14
    (the first order), temporarily delaying enforcement of residential eviction
    actions under specific conditions. As relevant here, the first order granted
    eviction relief to tenants who could show they “suffered a substantial loss
    of income” because of the COVID-19 pandemic. See Exec. Order No. 2020-
    14. On its face, the first order expired in July 2020. 
    Id.
     Shortly before the first
    order was to expire, the Governor issued Executive Order 2020-49 (the
    second order) extending the eviction moratorium until October 31, 2020.
    The Governor has not extended the eviction moratorium further, and both
    orders now have lapsed.
    ¶3             In May 2020, Gregory brought an eviction action in
    Hassayampa Justice Court. After a trial, the justice court issued a judgment
    awarding Gregory “immediate possession of the subject premises,” and
    $3,954.80 in past-due rent and fees. When the tenants did not surrender the
    property, Gregory sought a writ of restitution. Following arguments, the
    justice court found the tenants had shown “a significant loss of income due
    to Covid-19 in accordance with” the first order. Accordingly, the justice
    court stayed the writ “until the last day of the [first] order . . . or until the
    [tenants’] income has been restored, whichever comes first.” The stay
    explicitly ordered execution of the writ “on the earlier possible date.”
    ¶4           On July 2, 2020, Gregory filed a special action in the superior
    court challenging the first order’s constitutionality and seeking an order
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    GREGORY REAL v. KEEGAN, et al.
    Decision of the Court
    compelling the justice court to “forthwith issue and deliver to the Constable
    of their precinct . . . the writ of restitution.” On July 22, 2020, the superior
    court entered judgment rejecting each of Gregory’s constitutional
    challenges. Gregory timely appealed. This court has jurisdiction under
    article VI, section 9, of the Arizona Constitution, A.R.S. § 12-2101.A.1, and
    Ariz. R.P. Spec. Act. 8(a).
    ANALYSIS
    ¶5             On appeal, Gregory asks this court to vacate the superior
    court’s judgment and direct the justice court to lift its stay and issue the writ
    of restitution. But that relief is no longer necessary—the justice court’s stay
    expired on its own terms on October 31, 2020.
    ¶6             “A question is moot if it seeks to determine an abstract
    problem which does not arise upon existing facts or rights.” Mueller v. City
    of Phoenix ex rel. Phx. Bd. of Adjustment II, 
    102 Ariz. 575
    , 583 (1967). Long-
    standing Arizona Supreme Court precedent directs courts to “refrain from
    considering” such questions unless they raise an issue “of great public
    importance or one which is likely to recur.” See Fraternal Ord. of Police Lodge
    2 v. Phx. Emp. Rels. Bd., 
    133 Ariz. 126
    , 127 (1982). Gregory’s reply brief
    invites this court to exercise our discretion and apply these exceptions to
    reach the merits of its appeal. We decline the invitation.
    ¶7             Though we recognize the potential interest in the issues raised
    by Gregory’s appeal, “[i]t is not an appellate court’s function to declare
    principles of law which cannot have any practical effect in settling the rights
    of litigants.” See Progressive Specialty Ins. Co. v. Farmers Ins. Co. of Ariz., 
    143 Ariz. 547
    , 548 (App. 1985). “Nor [does this court] act as a fountain of legal
    advice.” Contempo–Tempe Mobile Home Owners Ass’n v. Steinert, 
    144 Ariz. 227
    , 229 (App. 1985). The executive orders Gregory challenges expired long
    ago. So too the justice court’s stay. Put simply, the passage of time has given
    Gregory the relief it sought by court order.
    ¶8             Further, “nothing in the record before us suggests” the
    Governor will issue a third eviction moratorium. See Cardoso, 230 Ariz. at
    617, ¶ 8. In fact, there is no reason for the Governor to take such action. The
    Centers for Disease Control has issued its own independent, eviction
    moratorium. See 
    86 Fed. Reg. 8020
    -01 (Feb. 3, 2021). And the trend in
    Arizona has been to lift, rather than reimpose, limitations. See Exec. Order
    No. 2021-06 (rescinding several COVID-19 based restrictions).
    ¶9          Finally, judicial restraint is fundamental when—as here—any
    opinion by this court could unnecessarily constrain another branch of
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    GREGORY REAL v. KEEGAN, et al.
    Decision of the Court
    government in areas of public policy. See Ariz. Const. art. III (“[E]xcept as
    provided in this constitution, such departments shall be separate and
    distinct, and no one of such departments shall exercise the powers properly
    belonging to either of the others.”).
    ATTORNEY FEES ON APPEAL
    ¶10           Gregory seeks its attorney fees and costs on appeal under
    Arizona Rule of Procedure for Special Actions 4(g) and ARCAP 21. Because
    the appeal is moot, we exercise our discretion and deny the request.
    CONCLUSION
    ¶11           Gregory’s appeal is dismissed as moot.
    AMY M. WOOD • Clerk of the Court
    FILED:    HB
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