Pima County v. Hogan

3 P.3d 1058, 197 Ariz. 138, 309 Ariz. Adv. Rep. 20, 1999 Ariz. App. LEXIS 212

• Court: Court of Appeals of Arizona
• Decided: November 30, 1999
• Docket: 2 CA-CV 99-0065
• Status: Published

Opinions

OPINION

BRAMMER, Presiding Judge.

¶ 1 Pima County (the County) appeals the trial court’s order denying its request for sanctions against appellee Jerome Hogan under Rule 68, Ariz. R. Civ. P., 16 A.R.S., after a bench trial in this eminent domain action. The County contends that the trial court erred when it found that Rule 68 did not apply to eminent domain proceedings, relying instead on A.R.S. § 12-1128. We affirm.

Facts and Procedural Background

¶ 2 The County brought this eminent domain action against Hogan pursuant to A.R.S. § 12-1116 for road construction. Before trial, the County filed an offer of judgment pursuant to Rule 68 in the amount of $30,000, plus taxable costs. Hogan moved to strike the offer on the ground that Rule 68 does not apply to eminent domain proceedings. The parties stipulated that the court would not rule on that motion until after the trial.

¶3 Following a bench trial, the court awarded Hogan $27,890 for the parcel condemned, plus taxable costs. The County then moved, pursuant to Rule 68, for sanctions in the form of compensation for its expert witness and double its taxable costs because the award was more favorable to it than its pretrial offer. Applying § 12-1128, rather than Rule 68, the trial court denied the County’s motion. This appeal followed.

Discussion

¶4 Rule 68(a) provides that a party may offer to allow judgment to be entered for or against that party in a certain amount. If the opposing party rejects the offer and the judgment ultimately obtained “is equal to, or more favorable to the offeror than, the offer, the offeree must pay, as a sanction, those reasonable expert witness fees and double the taxable costs of the offeror, ... incurred after the making of the offer.” Ariz. R. Civ. P. 68(d). The County argues that Rule 68, which applies to civil actions generally, applies to eminent domain proceedings as well because the purpose of the rule, which is to encourage settlement, is equally applicable to eminent domain actions. The County argues this is so despite the apparent conflict between the rule and § 12-1128, a statute that specifically applies to eminent domain actions. We review this issue of law de novo. Wersch v. Radnor/Landgrant — A Phoenix Partnership, 192 Ariz. 99, 961 P.2d 1047 (App.1997).

¶ 5 Section 12-1128 provides as follows:

Costs and jury fees

A. Costs may be allowed or not, and if allowed may be apportioned between the parties on the same or adverse sides, in the discretion of the court.

B. The jury fee may be assessed or not against the plaintiff, in the discretion of the court. If jury fees are so assessed, they shall be calculated in the same manner and amounts as in other civil actions and the plaintiff shall pay such fee to the clerk of the court for transmittal to the county treasurer who shall dispose such monies in the same manner as the disposition of other jury fees.

C. In an action for condemnation of property by or on behalf of an educational, reformatory or penal institution of the state, if the board or officers having charge of the institution, prior to commencement of the action or proceeding, tender to the owner of the property such sum of money as the board or officers deem the reasonable value of the property, and the owner refuses to accept it and transfer the property, then all costs and expenses of the action or proceeding shall be taxed against the owner unless the sum of money assessed in the judgment as the value of the property and compensation to be paid therefor is greater than the amount so tendered.

The statute mandates cost shifting between the parties only in those circumstances described in subsection (C). In all other circumstances, the court has discretion to apportion costs based on factors such as the degree of the property owner’s success or failure at trial, and whether the property owner was reasonable or frivolous in asserting a claim for greater compensation. See City of Phoenix v. Mori, 182 Ariz. 612, 898 P.2d 990 (App.1995). Presumably, the purpose of the provision, like the purpose behind the rule, is to encourage settlement. See Wersch. Noting this apparent similarity of purposes, the County argues that application of Rule 68 to eminent domain proceedings would not conflict with the statute. Additionally, citing Rules 1 and 81, Ariz. R. Civ. P., 16 A.R.S., the County contends that Rule 68 applies to all civil proceedings, and therefore to eminent domain proceedings as well.

¶ 6 In its order, the trial court analyzed the problem as follows:

A.R.S. § 12-1128 applies specifically to eminent domain proceedings and provides for sanctions against the owner of property when the owner refuses an offer made on behalf of an educational, reformatory, or penal institution of the state. A.R.S. § 12-1128 provides for the award of all the costs and expenses to the offeror. Rule 68 sanctions provide for the award of expenses and double the taxable costs of the offeror to be paid by the offeree. Comparatively then, Rule 68 is the more onerous of the two provisions. Under the County’s theory that Rule 68 applies to condemnation cases, the following two scenarios are possible, both of which render the substantive statute meaningless.

First, if Rule 68 applies to all condemnation cases except for the condemnation cases falling under A.R.S. § 12-1128(0, then this statute could theoretically cushion certain owners of property from full Rule 68 sanctions (double costs and expert witness fees) when the clear intent of this statute is to penalize those certain property owners under special situations, i.e., when their property is needed for institutions that the state deems of higher priority than others. A reading of A.R.S. § 12-1128 in this manner would be illogical and would seem to fly in the face of the [legislature’s] intent.

Conversely, if this Court found that Rule 68 applies to all condemnation cases, then A.R.S. § 12-1128 would be rendered void and meaningless. This would be an inappropriate attempt by the Court to exercise legislative function.

The court determined that application of Rule 68 to condemnation cases would render meaningless § 12-1128, a specific, substantive statute.

¶7 We must first decide whether there is a conflict between the statute and the rule, recognizing that we attempt to harmonize the two if possible. Drozda v. McComas, 181 Ariz. 82, 887 P.2d 612 (App.1994); Phoenix of Hartford, Inc. v. Harmony Restaurants, Inc., 114 Ariz. 257, 560 P.2d 441 (App.1977). Under § 12-1128(A), a court has broad discretion to award costs among the parties, and therefore may, but need not, award costs to a party who rejected an offer of judgment and did no better after a trial. Rule 68, however, mandates the shifting of costs to the offeror under such circumstances and would require it here. Further, although this case does not involve an institution covered by § 12-1128(C), we agree with the trial court that applying Rule 68 to condemnation cases could yield incongruous results. Given the direct conflict between the statute and rule, it appears they cannot be harmonized. Thus, we must decide which of the two applies to eminent domain proceedings.

¶ 8 The Arizona Supreme Court has the power to promulgate rules of procedure. Ariz. Const, art. VI, § 5(5). When a statute conflicts with a procedural rule on a procedural matter, the rule controls. See State ex rel. Napolitano v. Brown, 194 Ariz. 340, 982 P.2d 815 (1999); Pompa v. Superior Court, 187 Ariz. 531, 931 P.2d 431 (App.1997). Matters of substantive law, however, are controlled by statute or constitutional law. The distinction between procedural and substantive law is often difficult to discern. “[Substantive law is that part of the law which creates, defines and regulates rights; whereas the [procedural] law is that which prescribes the method of enforcing the right or obtaining redress for its invasion.” State v. Birmingham, 96 Ariz. 109, 110, 392 P.2d 775, 776 (1964).

¶ 9 The federal and Arizona constitutions preclude the taking of private property for public use without just compensation, which compensation shall be determined by a jury unless that right is waived. U.S. Const, amend. V; Ariz. Const, art. II, § 17. Although the apportionment of costs appears, on the surface, to be procedural, it affects a substantive right in eminent domain cases. Requiring the property owner to pay the condemnor’s costs pursuant to Rule 68 arguably reduces the amount of “just compensation” to which the landowner is constitutionally entitled.¹ See Grand River Dam Authority v. Jarvis, 124 F.2d 914 (10th Cir.1942) (finding that reason for rale requiring condemnor to pay costs of original condemnation proceeding is that to impose costs upon the landowner would violate the constitutional requirement of just compensation); City of Anchorage v. Scavenius, 539 P.2d 1169, 1175-76 (Alaska 1975) (refusing to apply Alaska version of Rule 68 because requiring property owner to risk payment of substantial expenses to secure award “would so chill the right to secure just compensation as to nullify the effectiveness of the constitutional provisions”); City of Los Angeles v. Ricards, 10 Cal.3d 385, 110 Cal.Rptr. 489, 515 P.2d 585, 588 (1973) (finding trial court’s discretion to apportion costs limited by landowner’s constitutional right to “full compensation for their property”);² see generally 1A Nichols on Eminent Domain § 4.109 (Julius L. Sackman, 3d ed.1999). Because this is an area of substantive law, a procedural rale cannot abridge the substantive right of just compensation. See Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 937 P.2d 353 (App.1996) (procedural rales cannot abridge substantive rights). Mandatory cost allocation in eminent domain proceedings pursuant to Rule 68 implicates a substantive, constitutional right. Therefore, the rale, which conflicts with the statute, does not apply.

¶ 10 The legislature, in determining how just compensation is to be determined, has prescribed limited circumstances in which cost shifting is mandatory, those actions in which the condemnor is “an educational, reformatory or penal institution.” § 12-1128(C). This action does not fall into any of these categories. Only § 12-1128(A) could apply here. The county is not, however, challenging whether the trial court abused its discretion under § 12-1128(A). Because neither party has challenged the constitutionality of the statute, we need not decide whether the limited cost shifting allowed by the legislature passes constitutional muster. We simply hold that any cost shifting must be accomplished substantively, and not pursuant to a procedural rale.

Conclusion

¶ 11 The trial court did not err in refusing to apply Rule 68. We therefore affirm the trial court’s order denying the County’s request for sanctions.

CONCURRING: M. JAN FLÓREZ, Judge.

1 . This can be seen from the facts of this case. In comparison to the $27,890 awarded in compensation, the county requested over $10,000 in sanctions under Rule 68.

2 . We have often relied on California jurisprudence in eminent domain cases. In 1914 Arizona adopted a constitutional " just compensation' clause essentially indistinguishable” from that of California. City of Phoenix v. Mori, 182 Ariz. 612, 614, 898 P.2d 990, 992 (App.1995); see also Viliborghi v. Prescott School Dist. No. 1, 55 Ariz. 230, 100 P.2d 178 (1940) (relying on California authority due to similarity of eminent domain statutes); Flood Control Dist. of Maricopa County v. Hing, 147 Ariz. 292, 709 P.2d 1351 (App.1985). The dissent notes Mori’s reliance on California law as an illustration of the constitutionality of sanctions against landowners. We simply note that California does not allow plaintiffs, presumably governmental agencies, in eminent domain cases to use offers of judgment to impose sanctions on the opposing party. See Cal. Civ. P.Code § 998(d) and (g) (West 1980).