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Span v. Maricopa County Treasurer

Court of Appeals of Arizona, First Division

February 19, 2019

PETE SPAN, Plaintiff/Appellant,

          Appeal from the Superior Court in Maricopa County No. CV2008-007180 The Honorable James T. Blomo, Judge, Retired

          Law Office of Brian K. Stanley, Tempe By Brian K. Stanley Counsel for Plaintiff/Appellant

          Maricopa County Attorney's Office, Phoenix By D. Chad McBride, Charles Trullinger Counsel for Defendant/Appellee

          Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Kent E. Cattani joined. Judge Jennifer M. Perkins concurred in part and dissented in part.


          JOHNSEN, JUDGE

         ¶1 Pete Span failed to pay taxes assessed against property he owned in Maricopa County. The purchaser of the resulting tax lien eventually filed to foreclose the lien. Notified of the pending action, Span paid $102, 989.94 to redeem the lien, and Maricopa County forwarded the money to the purchaser of the lien. This court later ruled the lien had expired before the purchaser filed to foreclose. At issue now is an unjust-enrichment claim Span filed against the County to recover the amount he paid to redeem the lien. The superior court entered summary judgment against him. We affirm.


         ¶2 After Span failed to pay property taxes due on his property for 1993, Maricopa County sold a tax lien on the property at auction in 1995. The County Treasurer issued a certificate of purchase to the buyer of the lien (the "CP holder"), which later paid taxes due on the property for 1994, 1995 and 1996. The CP holder, a profit-sharing plan, filed a complaint to foreclose its tax lien on February 9, 2007. The foreclosure complaint properly named Span and the County as defendants, and the CP holder served the defendants by publication. The complaint alleged that on January 3, 2007, the CP holder had sent Span notice by certified mail of its intent to foreclose. See Ariz. Rev. Stat. ("A.R.S.") § 42-18202(A) (2019) (holder of certificate must give notice by certified mail to property owner at least 30 days before filing a foreclosure complaint).[1]

         ¶3 On March 12, 2007, the County Treasurer sent Span a form letter apparently triggered by the filing of the foreclosure complaint. The letter listed the amounts the CP holder had paid and stated: "This statement shows the amount due and payable in order to redeem your property. To remove these tax liens, please return this statement with your payment . . . ." Span paid the County Treasurer the redemption amount of $102, 989.94 on March 30. On appeal, he argues he made his payment "under protest," and our record contains a one-page screenshot of a document from the County Treasurer's Office dated March 30, 2007, that states, "paid under protest for 10 yr exp. statute." The County Treasurer forwarded Span's payment to the CP holder, and the superior court dismissed the foreclosure action on April 20, 2007.

         ¶4 Span did not respond to the foreclosure complaint before it was dismissed, nor did he move to enjoin the foreclosure. Instead, on May 7 he filed a document titled "Special Appearance Request for Clarification of the Court's Order, and Request for Tolling the Time & Additional Time to File an Answer and File a Counter-Claim, Etc." In that filing, Span asserted that the court had dismissed the foreclosure complaint without his knowledge or consent and argued he had a right to file a counterclaim against the CP holder and the County. There was no response to Span's filing, and the superior court made no further rulings in the matter.

         ¶5 The following year, Span filed a complaint against the County, the County Treasurer and others (but, notably, not the CP holder). Span alleged that the lien had expired before the CP holder filed for foreclosure and that the County had improperly required him to redeem the expired lien. He alleged breaches of contract and fiduciary duty, negligence, violation of statutory and constitutional rights, and unjust enrichment. As damages, he sought recovery of what he paid to redeem the lien, plus interest, and $500, 000 "or more" for asserted violations of his constitutional rights.

         ¶6 The superior court entered judgment for the defendants on all claims and also found Span had not timely served two individual defendants, including the Maricopa County Treasurer. On appeal, this court reversed, holding the lien had expired by statute in 2005, as Span had argued. Span v. Maricopa County Treasurer, 1 CA-CV 12-0771, 2014 WL 1233463, at *4, ¶ 14 (App. Mar. 25, 2014) (mem. decision); see also A.R.S. § 42-18208(A) (2019). The court also concluded, however, that Span had waived any challenge to the dismissal of his claims against the individual defendants by failing to raise that ruling on appeal. Id. at *1, ¶ 1, n.1.

         ¶7 On remand, the parties filed cross-motions for summary judgment. The County pointed out that it did not possess Span's redemption payment, having forwarded it to the CP holder. The County further argued the CP holder had given Span 30 days' notice of the foreclosure action so that he could have challenged the validity of the lien in that matter before he paid to redeem it. Span, meanwhile, sought summary judgment that the Treasurer was still a party to the case.

         ¶8 The superior court granted the County's motion for summary judgment, finding that under Fridena v. Maricopa County, 18 Ariz.App. 527 (1972), Span had no claim against the County, and denied Span's cross-motion for summary judgment regarding the Treasurer. Span timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2019) and -2101(A)(1) (2019).


         ¶9 Summary judgment is proper "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). On appeal from entry of summary judgment, we review questions of law de novo and consider the evidence and all reasonable inferences in the light most favorable to the non-moving party. Lennar Corp. v. Transamerica Ins. Co., 227 Ariz. 238, 242, ¶ 7 (App. 2011). A. Respondeat Superior and Unjust Enrichment.

         ¶10 The County urges us to affirm the judgment under Fridena, which addressed a county's liability based on respondeat superior for the conduct of a county official. See 18 Ariz.App. at 528-29. But Span's unjust enrichment claim is based at least in part on actions by the County - its receipt of and failure to return money that Span argues belongs to him -and not solely on the actions of a County employee or official. Because Span's claim ...

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