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.
OPINION
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.
FACTS
AND PROCEDURAL BACKGROUND
¶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).
DISCUSSION
¶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 ...