Title 12 — Courts and Civil Proceedings

Chapter 1 Courts of Record

Article 1 The Supreme Court

§ 12-101 Justices; number; term; election

The supreme court shall consist of seven justices. The term of office of each justice shall be six years and shall take effect on the first Monday in January of the year in which it begins. Justices shall be elected at the general election next preceding the expiration of a term of office.

§ 12-102 Jurisdiction and duties; court appointments; contract and volunteer service providers; background investigations; fingerprinting

A. The supreme court shall discharge the duties imposed and exercise the jurisdiction conferred by the constitution and by law.

B. As a condition of appointment to any paid position in the judicial department that is defined as a noncriminal justice agency under federal law, including nomination for judicial office by the commissions on appellate and trial court appointments pursuant to article VI, sections 37 and 41, Constitution of Arizona, the court shall require each applicant to furnish a full set of fingerprints to enable the court to conduct a criminal background investigation to determine the suitability of the applicant. The court shall submit the completed applicant fingerprint card to the department of public safety. The applicant shall bear the cost of obtaining the applicant's criminal history record information. The cost shall not exceed the actual cost of obtaining the applicant's criminal history record information. Applicant criminal history records checks shall be conducted pursuant to section 41-1750 and Public Law 92-544. The department of public safety is authorized to exchange the submitted applicant fingerprint card information with the federal bureau of investigation for a national criminal history records check.

C. The court may require each person who provides contract or volunteer services in the judicial department that is defined as a noncriminal justice agency under federal law to furnish a full set of fingerprints to enable the court to conduct a criminal background investigation. The court shall submit the person's completed fingerprint card to the department of public safety. The person shall bear the cost of obtaining the person's criminal history record information. The cost shall not exceed the actual cost of obtaining the person's criminal history record information. Criminal history records checks shall be conducted pursuant to section 41-1750 and Public Law 92-544. The department of public safety is authorized to exchange the person's submitted fingerprint card information with the federal bureau of investigation for a national criminal history records check.

§ 12-102.01 Criminal case processing and enforcement improvement fund

A. The criminal case processing and enforcement improvement fund is established consisting of monies appropriated to the fund. The purpose of the fund is to improve the processing of criminal cases in the superior court and the justice courts and the enforcement of court orders, including the collection of court ordered fees, fines, penalties, assessments, sanctions and forfeitures.

B. The supreme court shall administer the fund. The supreme court shall allocate monies in the fund to counties for the planning and implementation of collaborative projects that are designed to improve the processing of criminal cases and the enforcement of court orders, including the collection of court ordered fees, fines, penalties, assessments, sanctions and forfeitures. At a minimum, each project shall involve the county attorney, county public defender, county legal defender, county contract indigent defense counsel, superior court, clerk of the superior court, county manager and justice courts in the county. Additional criminal justice entities may also be included in the project.

C. To be eligible for funding, pursuant to this section, a county shall submit to the supreme court a plan that demonstrates how the county attorney, county public defender, county legal defender, county contract indigent defense counsel, superior court including the clerk of the superior court, justice courts and other identified criminal justice entities will work together collaboratively to both:

1. Identify current problems with criminal case processing and the enforcement of court orders, including the collection of court ordered fees, fines, penalties, assessments, sanctions and forfeitures.

2. Identify possible solutions and efficiencies to improve the case processing time and the enforcement of court orders, including the collection of court ordered fees, fines, penalties, assessments, sanctions and forfeitures.

D. By January 8 of each year, the supreme court shall report to the governor, the legislature, each county board of supervisors, the joint legislative budget committee and the Arizona criminal justice commission on the progress of the criminal case processing projects and the enforcement of court orders, including the collection of court ordered fees, fines, penalties, assessments, sanctions and forfeitures. The county attorney, indigent defense counsel and county board of supervisors in each county and the attorney general shall assist the supreme court in preparing the report by providing information relevant to the report. This information may be combined into one report with the information required pursuant to section 12-102.02, subsection D.

E. All monies distributed or spent from the fund shall be used to supplement, not supplant, funding at the level provided in fiscal year 1997-1998 by the counties and the state to improve the processing of criminal cases and the enforcement of court orders, including the collection of court ordered fees, fines, penalties, assessments, sanctions and forfeitures.

F. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations and are subject to legislative appropriation.

G. On notice from the supreme court, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

§ 12-102.02 State aid to the courts fund

A. The state aid to the courts fund is established consisting of monies appropriated to the fund and monies allocated pursuant to section 41-2421, subsections B and J. The purpose of the fund is to provide state aid to the superior court, including the clerk of the superior court, and justice courts for the processing of criminal cases.

B. The supreme court shall administer the fund. The supreme court shall allocate monies in the fund to the superior court, including the clerk of the court, and the justice courts in each county according to the following composite index formula:

1. The three year average of the total felony filings in the superior court in the county, divided by the statewide three year average of the total felony filings in the superior court.

2. The county population, as adopted by the department of economic security, divided by the statewide population, as adopted by the department of economic security.

3. The sum of paragraphs 1 and 2 divided by two equals the composite index.

4. The composite index for each county shall be used as the multiplier against the total funds appropriated from the state general fund and other monies distributed to the fund pursuant to section 41-2421.

C. The presiding judge of the superior court in each county, in coordination with the chairman of the county board of supervisors or the chairman's designee, the clerk of the superior court, the presiding justice of the peace and an elected justice of the peace of the county shall submit a plan to the supreme court that details how the funds allocated to the county pursuant to this section will be used and how the plan will assist the county in improving criminal case processing. The presiding judge of the superior court, the chairman of the board of supervisors or the chairman's designee, the clerk of the superior court, the presiding justice of the peace and an elected justice of the peace shall sign the plan and shall indicate their endorsement of the plan as submitted or shall outline their disagreement with any provisions of the plan. The supreme court may approve the plan or require changes to the plan in order to achieve the goal of improved criminal case processing.

D. By January 8, 2001 and every year thereafter by January 8, the supreme court shall report to the governor, the legislature, the joint legislative budget committee, each county board of supervisors and the Arizona criminal justice commission on the expenditure of the fund monies for the prior fiscal year and on the progress made in achieving the goal of improved criminal case processing. This information may be combined into one report with the information required pursuant to section 12-102.01, subsection D.

E. All monies spent or distributed from the fund shall be used to supplement, not supplant, funding at the level provided in fiscal year 1997-1998 by the counties for the processing of criminal cases in the superior court, including the office of the clerk of the superior court, and justice courts.

F. Monies in the state aid to the courts fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations and monies allocated pursuant to section 41-2421, subsections B and J are subject to legislative appropriation. Any state general fund monies appropriated to the fund may be spent without further legislative appropriation.

G. On notice from the supreme court, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

§ 12-102.03 Local courts assistance fund

A. The local courts assistance fund is established consisting of monies allocated to the fund pursuant to section 41-2421, subsections E and G. The purpose of the fund is to provide state aid to the superior court, including the clerk of the court and the justice courts in each county for the processing of criminal cases.

B. The plan required pursuant to section 12-102.02, subsection C, shall include the planned expenditure of monies received pursuant to this section. This plan must be approved by the supreme court prior to the expenditure of such monies.

C. The county treasurer shall invest monies in the fund. Interest earned on fund monies shall be deposited in the fund.

D. All monies distributed or spent from the fund shall be used to supplement, not supplant, funding at the level provided in fiscal year 1997-1998 by the counties for the processing of criminal cases.

§ 12-102.04 Fleet management; vehicle replacement rate; state court fleet operations and replacement fund; exemption

A. The supreme court may lease or purchase motor vehicles for use by court personnel in conducting business activities in furtherance of the supreme court's administrative supervision over all courts of this state, including the provision of adult and juvenile probation services. The supreme court is exempt from title 38, chapter 3, article 10 relating to vehicle markings.

B. The supreme court shall recover all costs for fleet operation services. The supreme court shall pay from available monies the cost of fleet operation services and replacements at a rate that is similar to the rate established by the director of the department of transportation pursuant to section 28-472, subsection E, including a separate vehicle replacement rate for motor vehicle replacements. The supreme court shall deposit, pursuant to sections 35-146 and 35-147, monies received for fleet operation services and vehicle replacement in the state court fleet operations and replacement fund established by subsection C of this section.

C. The state court fleet operations and replacement fund is established consisting of the proceeds from sales of the supreme court's surplus motor vehicles, monies received pursuant to subsection B of this section and legislative appropriations. The fund is a special state fund pursuant to section 35-142, subsection A, paragraph 8. The supreme court shall administer the fund. Monies in the fund do not revert to the state general fund, are continuously appropriated and are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

§ 12-103 Seal

The supreme court shall have a seal as devised and adopted by the judges of the court. The seal shall be kept by the clerk of the court.

§ 12-104 Affixing of seal

A. The seal of the supreme court need not be affixed to any proceedings in the court except a summons, writ or authentication of a copy of a record or proceedings of the court or its officers for the purpose of record or evidence in another court or place.

B. The seal may be affixed by impressing it on the paper or on a substance attached to the paper and capable of receiving the impression.

§ 12-105 Days for transaction of business

The supreme court shall at all times be open for transaction of business except on nonjudicial days.

§ 12-106 Salary of justices

Each justice of the supreme court shall receive an annual salary pursuant to section 41-1904.

§ 12-107 Publication of opinions

The supreme court and, pursuant to section 12-120.07, the court of appeals shall publish their opinions as soon as practicable after they are announced. The opinions shall be published in suitable volumes which shall contain appropriate headnotes, tables of cases reported, and tables of statutes cited and construed. Each volume shall also contain a digest of the law in the reported cases and the words and phrases construed. The volumes shall, with the approval of the court, be printed and bound.

§ 12-108 Reports of decisions; publication; distribution

A. The supreme court may contract with the person who agrees to publish and sell the report of decisions on terms most advantageous to the state. The contractor shall agree to publish at the contract price the number of volumes as the supreme court may require.

B. Any entity may request from the contractor any number of volumes, which shall be published and delivered at the contract price to be paid for by the requesting entity.

C. Volumes that are delivered to a person on account of the office held by that person remain the property of this state and shall have stamped or written on them the name of the office and shall be kept for the use of the office.

§ 12-109 Rules and administrative orders of pleading, practice and procedure; adoption; prohibitions; electronic signatures; distribution

A. The supreme court, by rules or administrative orders, shall regulate pleading, practice and procedure in judicial proceedings in all courts of this state to simplify pleading, practice and procedure and promote speedy determination of litigation on its merits.

B. The rules and administrative orders shall not do any of the following:

1. Abridge, enlarge or modify substantive rights of a litigant.

2. Abridge, enlarge or modify statutory, contractual or common law real property rights or questions of substantive law.

C. The court may allow documents that require a sworn written declaration, verification, certificate, statement, oath or affidavit to be signed with an electronic signature.

D. The supreme court shall print and distribute the rules and administrative orders to all members of the state bar and to all other persons who apply.

E. The rules shall not become effective until sixty days after distribution.

§ 12-110 Advisory board; objections to rules

A. The state bar, or a representative group selected by the bar, shall act as an advisory board and shall either voluntarily or upon request of a majority of the judges of the supreme court, consult with, recommend to or advise the court on any matter dealt with or proposed to be dealt with in the rules.

B. Any member of the state bar or a private citizen may object in writing to a rule or part thereof and may request changes. The court shall consider the objections and requests as advice and information only and may act thereon at its discretion.

§ 12-111 Statutes as rules of court

All statutes relating to pleading, practice and procedure shall be deemed rules of court and shall remain in effect as such until modified or suspended by rules promulgated by the supreme court.

§ 12-112 Education program for justices and magistrates

The supreme court shall establish a program of continuing education for justices of the peace and magistrates. The program shall include such courses of study as the supreme court deems necessary or desirable.

§ 12-112.01 Education programs; state agency license requirements; state bar members; certified legal document preparers; definition

A. The supreme court shall provide that if a member of the state bar or a certified legal document preparer attends a continuing education program and earns continuing education credit to fulfill a state agency license renewal requirement, the state bar member or certified legal document preparer shall also earn credit for the member's or document preparer's annual continuing legal education activity requirement for the continuing education program to fulfill the state agency license renewal requirement if that continuing education program does all of the following:

1. Consists of an organized program of learning.

2. Deals with matters directly related to the law.

3. Follows an agenda.

4. Is accompanied by substantive or practical written materials or exercises.

B. For the purposes of this section, "state agency license renewal requirement" means an amount of continuing education that a person must obtain in order to satisfy a requirement imposed by law to maintain or renew a professional license issued by an agency, board, commission or department of this state.

§ 12-113 Judicial collection enhancement fund; purpose; administration; report; definition

A. A judicial collection enhancement fund is established consisting of monies received from:

1. The time payment fee established in section 12-116.

2. The surcharge paid by a person attending a court ordered diversion program pursuant to section 12-114.

3. Monies deposited in the fund pursuant to section 12-114.01, section 12-119.01, subsection B, paragraph 1, section 12-120.31, subsection D, paragraph 1, section 12-284.03, subsection A, paragraph 7, section 22-281, subsection C, paragraph 1, section 22-404, subsection C, paragraph 1 and section 41-178.

4. Electronic filing and access fees collected pursuant to sections 12-119.02 and 12-120.31.

B. Courts wishing to receive monies from the judicial collection enhancement fund shall submit a plan to the supreme court. Subject to legislative appropriation, the fund monies shall be used according to plans approved by the supreme court to train court personnel, improve, maintain and enhance the ability to collect and manage monies assessed or received by the courts, including restitution, child support, fines and civil penalties, to improve court automation, to improve case processing or the administration of justice and for probation services.

C. The supreme court shall administer the fund and may expend monies in the fund, subject to legislative appropriation, for local, regional or statewide projects. The supreme court may directly provide or contract for services consistent with the purposes of the fund. Monies from the fund shall supplement monies already provided to local courts for purposes consistent with the purposes of the fund.

D. By January 8 of each year, the supreme court shall report to the governor and the legislature, for the prior fiscal year, the total monies collected, the amount spent and for what purposes, including an exact explanation of funds defined as administration of the fund, the amount remaining in the fund and the number of employees who are paid from the fund and their job descriptions. The report shall also detail the progress made in improving the ability of the courts to collect monies.

E. On notice from the supreme court, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

F. After the court determines the amount due, the court shall transmit to the county treasurer each month the fees collected pursuant to section 12-116, except that municipal courts shall transmit to the city treasurer each month the fees so collected.

G. The county or city treasurer shall transmit to the state treasurer on or before the fifteenth day of each month the fees collected pursuant to subsection F of this section for deposit in the judicial collection enhancement fund.

H. For the purposes of this article, "court authorized diversion program" means a program in which an individual who is charged with a civil or criminal traffic offense or any other criminal offense is not prosecuted for the offense on the successful completion of an authorized diversion program. Successful completion of a defensive driving school program resulting in dismissal of a civil or criminal traffic offense is considered a court authorized diversion program under this section.

§ 12-114 Surcharge on court authorized diversion programs for traffic offenses; deposit

A. If a court authorizes individuals charged with civil or criminal traffic offenses to attend a court authorized diversion program, including a defensive driving school program, it shall require the assessment of a nine dollar surcharge on the fees charged by the court authorized diversion programs. The surcharge applies to every individual who attends a court authorized diversion program, including an individual who holds a commercial driver license.

B. A court or a court authorized diversion program shall collect the nine dollar surcharge and remit the surcharge to the supreme court which shall deposit, pursuant to sections 35-146 and 35-147, five dollars of the surcharge in the judicial collection enhancement fund and the remaining four dollars in the peace officer training equipment fund established by section 41-1731.

§ 12-114.01 Probation assessment; deposit

A. Except as provided in section 12-269, in addition to any other penalty, fine, fee, surcharge or assessment authorized by law, a person shall pay an assessment of twenty dollars on conviction for a criminal offense or a finding of responsibility for a civil traffic violation, for a violation of any local ordinance relating to the stopping, standing or operation of a vehicle, except parking violations, or for a violation of the game and fish statutes in title 17.

B. The monies collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the judicial collection enhancement fund established by section 12-113 to be used to supplement monies currently used for the salaries of adult and juvenile probation and surveillance officers and for support of programs and services of the superior court adult and juvenile probation departments.

C. The court may mitigate all or part of the assessment in the same manner and subject to the same limitations included in the mitigation of a fine in section 13-825, subsection B.

§ 12-115 Additional filing, appearance and answer or response fees; deposit

(Rpld. 1/1/31)

A. In addition to any other assessment authorized by law, the supreme court shall establish an additional fee on each filing, appearance and answer or response fee charged by a clerk of the superior court.

B. The clerk shall collect the additional fee and monthly remit the additional fees to the county treasurer. The county treasurer shall transmit the fees to the state treasurer on or before the fifteenth day of each month for deposit, pursuant to sections 35-146 and 35-147, in the fair jury improvement fund established by section 21-222. The state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

C. The additional fee may be deferred or waived pursuant to sections 12-302 and 12-304.

D. In establishing the additional fees under subsection A of this section, the supreme court may designate by rule that the additional fees not be imposed on filings in types of cases that involve minimal use of court resources, that are not afforded the opportunity for a trial by jury or that do not involve the use of digital evidence.

§ 12-116 Time payment fee

A. In addition to any other assessment authorized by law, a fee of $20 shall be assessed on each person who pays a court ordered penalty, fine or sanction on a time payment basis, including parking penalties and restitution. The fee may not be assessed on a penalty, fine or sanction that is ordered by the court pursuant to title 8. A time payment basis shall be any penalty, fine or sanction not paid in full on the date the court imposed the fine, penalty or sanction. Notwithstanding any other law, the time payment fee shall be collected first after restitution. A judge may not waive or suspend a time payment fee.

B. $11 of the time payment fee shall be deposited, pursuant to sections 35-146 and 35-147, in the judicial collection enhancement fund established by section 12-113. $2 of the time payment fee shall be deposited, pursuant to sections 35-146 and 35-147, in the judicial collection enhancement fund and shall be allocated by the supreme court to the public defender training fund established by section 12-117. $7 of the time payment fee shall be kept by the court imposing the fee to be used by the court to improve, maintain and enhance the ability to collect and manage monies assessed or received by the courts, to improve court automation and to improve case processing or the administration of justice. For amounts over an amount determined by the supreme court, the court shall submit a plan to the supreme court that must be approved by the supreme court before the court spends such monies. If the proposed project was described in the information technology strategic plan submitted by the court and approved by the supreme court, including the proposed budget for the project, the project may proceed without further approval of the supreme court. In the case of the superior court, the presiding judge and clerk of the superior court must agree on the project or it shall be submitted to and approved by the supreme court.

§ 12-116.01 Surcharges; remittance reports; fund deposits

A. In addition to any penalty provided by law, a surcharge shall be levied in an amount of forty-two percent on every fine, penalty and forfeiture imposed and collected by the courts for criminal offenses and any civil penalty imposed and collected for a civil traffic violation and fine, penalty or forfeiture for a violation of the motor vehicle statutes, for any local ordinance relating to the stopping, standing or operation of a vehicle or for a violation of the game and fish statutes in title 17.

B. In addition to any penalty provided by law, a surcharge shall be levied in an amount of seven percent on every fine, penalty and forfeiture imposed and collected by the courts for criminal offenses and any civil penalty imposed and collected for a civil traffic violation and fine, penalty or forfeiture for a violation of the motor vehicle statutes, for any local ordinance relating to the stopping, standing or operation of a vehicle or for a violation of the game and fish statutes in title 17.

C. In addition to any penalty provided by law, a surcharge shall be levied in an amount of six percent, on every fine, penalty and forfeiture imposed and collected by the courts for criminal offenses and any civil penalty imposed and collected for a civil traffic violation and fine, penalty or forfeiture for a violation of the motor vehicle statutes, for any local ordinance relating to the stopping, standing or operation of a vehicle or for a violation of the game and fish statutes in title 17.

D. If any deposit of bail or bond or deposit for an alleged civil traffic violation is to be made for a violation, the court shall require a sufficient amount to include the surcharge prescribed in this section for forfeited bail, bond or deposit. If bail, bond or deposit is forfeited, the court shall transmit the amount of the surcharge pursuant to subsection G of this section. If bail, bond or deposit is returned, the surcharge made pursuant to this article shall also be returned.

E. After addition of the surcharge, the courts may round the total amount due to the nearest one-quarter dollar.

F. The surcharge imposed by this section shall be applied to the base fine, civil penalty or forfeiture and not to any other surcharge imposed.

G. After a determination by the court of the amount due, the court shall transmit, on the last day of each month, the surcharges collected pursuant to subsections A, B, C and D of this section and a remittance report of the fines, civil penalties, assessments and surcharges collected pursuant to subsections A, B, C and D of this section to the county treasurer, except that municipal courts shall transmit the surcharges and the remittance report of the fines, civil penalties, assessments and surcharges to the city treasurer.

H. The appropriate authorities specified in subsection G of this section shall transmit the surcharge prescribed in subsection A of this section and the remittance report as required in subsection G of this section to the state treasurer on or before the fifteenth day of each month for deposit in the criminal justice enhancement fund established by section 41-2401.

I. The appropriate authorities specified in subsection G of this section shall transmit the seven percent surcharge prescribed in subsection B of this section and the remittance report as required in subsection G of this section to the state treasurer on or before the fifteenth day of each month for allocation pursuant to section 41-2421, subsection J.

J. The appropriate authorities specified in subsection G of this section shall transmit the surcharge prescribed in subsection C of this section and the remittance report as required in subsection G of this section to the state treasurer on or before the fifteenth day of each month for deposit in the department of public safety forensics fund established by section 41-1730.

K. Partial payments of the amount due shall be transmitted as prescribed in subsections G, H, I and J of this section and shall be divided according to the proportion that the civil penalty, fine, bail or bond and the surcharge represent of the total amount due.

§ 12-116.02 Additional surcharges; fund deposits

A. In addition to any penalty provided by law, a surcharge shall be levied in an amount of thirteen percent on every fine, penalty and forfeiture imposed and collected by the courts for criminal offenses and civil penalties imposed and collected for a civil traffic violation and fine, penalty or forfeiture for a violation of the motor vehicle statutes, for a violation of any local ordinance relating to the stopping, standing or operation of a vehicle or for a violation of the game and fish statutes in title 17.

B. If any deposit of bail or bond or deposit for an alleged civil traffic violation is to be made for a violation, the court shall require a sufficient amount to include the surcharge prescribed in this section for forfeited bail, bond or deposit. If bail, bond or deposit is forfeited, the court shall transmit the amount of the surcharge pursuant to subsection E of this section. If bail, bond or deposit is returned, the surcharge made pursuant to this article shall also be returned.

C. After addition of the surcharge, the courts may round the total amount due to the nearest one-quarter dollar.

D. The surcharge imposed by this section shall be applied to the base fine, civil penalty or forfeiture and not to any other surcharge imposed.

E. After a determination by the court of the amount due, the court shall transmit, on the last day of each month, the surcharges collected pursuant to subsections A and B of this section and a remittance report of the fines, civil penalties, assessments and surcharges collected pursuant to subsections A and B of this section to the county treasurer, except that municipal courts shall transmit the surcharges and the remittance report of the fines, civil penalties, assessments and surcharges to the city treasurer.

F. The appropriate authorities prescribed in subsection E of this section shall transmit the thirteen percent surcharge as required in subsection A of this section to the state treasurer on or before the fifteenth day of each month for deposit in the medical services enhancement fund established by section 36-2219.01.

G. Partial payments of the amount due shall be transmitted as required in subsections E and F of this section and shall be divided according to the proportion that the civil penalty, fine, bail or bond and the surcharge represent of the total amount due.

§ 12-116.03 Collection agencies

A court may contract with public agencies or private entities to assist in collecting fines, fees, penalties, costs, surcharges, restitution and assessments that remain unpaid. The court may add to any underlying amount owed reasonable costs charged by the contracting agency or entity.

§ 12-116.04 Assessment; law enforcement officer equipment; gang and immigration intelligence team enforcement mission

A. In addition to any other penalty assessment provided by law, a penalty assessment shall be levied in an amount of thirteen dollars on every fine, penalty and forfeiture imposed and collected by the courts for criminal offenses and any civil penalty imposed and collected for a civil traffic violation and fine, penalty or forfeiture for a violation of the motor vehicle statutes, for any local ordinance relating to the stopping, standing or operation of a vehicle or for a violation of the game and fish statutes in title 17.

B. The court shall transmit the assessments collected pursuant to this section and a remittance report of the fines, civil penalties and assessments collected pursuant to this section to the county treasurer, except that municipal courts shall transmit the assessments and the remittance report of the fines, civil penalties and assessments to the city treasurer.

C. The city or county treasurer shall transmit eight dollars of the assessment and the remittance report to the state treasurer. The state treasurer shall deposit four dollars of the assessment in the public safety equipment fund established by section 41-1723 and the remaining four dollars of the assessment in the gang and immigration intelligence team enforcement mission border security and law enforcement subaccount established by section 41-1724.

D. The city or county treasurer shall transmit four dollars of the assessment and the remittance report to the agency that investigated the offense or issued the citation to be used to supplement, not supplant, monies available for officer safety equipment.

E. The city treasurer shall transmit one dollar of the assessment and the remittance report to the county treasurer. The county treasurer shall transmit one dollar of the assessment and any monies received from the city treasurer pursuant to this subsection to the following entities to be used to improve, maintain and enhance the ability to collect and manage monies assessed or received by the courts, to improve court automation and to improve case processing or the administration of justice:

1. In a county with a population of less than two million persons, to the justice courts, distributed proportionally based on the judicial productivity credits calculated pursuant to section 22-125.

2. In a county with a population of two million persons or more, to the justice court administration.

§ 12-116.05 Address confidentiality program assessment

A. In addition to any other penalty, fine, fee or assessment authorized by law, a person who is convicted of an offense included in title 13, chapter 14 or 35.1, stalking pursuant to section 13-2923 or a domestic violence offense pursuant to section 13-3601 shall pay an assessment of fifty dollars. The court may waive all or a portion of the assessment if the court finds that the defendant is unable to pay all or any portion of the assessment.

B. The city or county treasurer shall transmit ninety-five per cent of the monies collected pursuant to subsection A of this section to the state treasurer for deposit in the address confidentiality program fund established by section 41-169. The clerk of the court shall retain five per cent of the monies collected pursuant to subsection A of this section for administrative costs.

§ 12-116.06 Assessment for family offenses, harassment and stalking

In addition to any other penalty, fine, fee or assessment authorized by law, a person who is convicted of a violation of section 13-2921, 13-2921.01 or 13-2923 or an offense listed in title 13, chapter 36 shall pay an additional assessment of fifty dollars to be deposited by the state treasurer in the domestic violence services fund established by section 36-3002. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

§ 12-116.07 Assessments for dangerous crimes against children and sexual offenses

A. In addition to any other assessment or restitution, if a person is convicted of a dangerous crime against children as defined in section 13-705 or a violation of section 13-1404, 13-1405, 13-1406 or 13-3212, the court shall order the person to pay an assessment of $500. The assessment shall not be waived and is not subject to a surcharge.

B. The court shall transmit the monies collected pursuant to this section to the county treasurer for the purpose of defraying the cost of investigations pursuant to section 13-1414.

§ 12-116.08 Penalty assessment; victims' rights; fund deposits

A. In addition to any other penalty assessment provided by law, a penalty assessment shall be levied in an amount of nine dollars on every fine, penalty and forfeiture imposed and collected by the courts for criminal offenses and any civil penalty imposed and collected for a civil traffic violation and fine, penalty or forfeiture for a violation of the motor vehicle statutes, for any local ordinance relating to the stopping, standing or operation of a vehicle or for a violation of the game and fish statutes in title 17.

B. The court shall transmit the assessments collected pursuant to this section and a remittance report of the fines, civil penalties and assessments collected to the county treasurer, except that municipal courts shall transmit the assessments and the remittance report of the fines, civil penalties and assessments to the city or town treasurer.

C. The city, town or county treasurer shall transmit the assessments and the remittance report to the state treasurer. The state treasurer shall deposit 62.4 percent of the assessments in the victims' rights fund established by section 41-191.08 and the remaining 37.6 percent of the assessments in the victim compensation and assistance fund established by section 41-2407.

§ 12-116.09 Assessment; victims' rights enforcement

A. In addition to any other penalty assessment provided by law, a penalty assessment shall be levied in an amount of $4 on every fine, penalty and forfeiture imposed and collected by the courts for criminal offenses and any civil penalty imposed and collected for a civil traffic violation and fine, penalty or forfeiture for a violation of the motor vehicle statutes, for any local ordinance relating to the stopping, standing or operation of a vehicle or for a violation of the game and fish statutes in title 17.

B. The court shall transmit the assessments collected pursuant to this section and a remittance report of the fines, civil penalties and assessments collected pursuant to this section to the county treasurer, except that municipal courts shall transmit the assessments and the remittance report of the fines, civil penalties and assessments to the city or town treasurer.

C. The city, town or county treasurer shall transmit the assessments and the remittance report to the state treasurer. The state treasurer shall deposit the assessments in the victims' rights enforcement fund established by section 41-1727.

§ 12-116.10 Assessment; peace officer training equipment fund

A. In addition to any other penalty assessment provided by law, a penalty assessment shall be levied in an amount of four dollars on every civil penalty imposed and collected for a civil traffic violation and fine, penalty or forfeiture for a criminal violation of the motor vehicle statutes or for any local ordinance relating to the stopping, standing or operation of a vehicle.

B. The court shall transmit the assessments collected pursuant to this section and a remittance report of the fines, civil penalties and forfeitures collected pursuant to this section to the county treasurer, except that municipal courts shall transmit the assessments and the remittance report of the fines, civil penalties and forfeitures to the city or town treasurer.

C. The city, town or county treasurer shall transmit the assessment and the remittance report to the state treasurer. The state treasurer shall deposit the assessment in the peace officer training equipment fund established by section 41-1731.

D. The court may mitigate all or part of the assessment in the same manner and subject to the same limitations in the mitigation of a fine in section 13-825, subsection B.

§ 12-116.11 Assessment; drag racing prevention enforcement fund

A. In addition to any other penalty assessment provided by law, a penalty assessment shall be levied in an amount of $1,000 on every fine, penalty and forfeiture imposed and collected by the courts for a violation of section 28-708.

B. The court shall transmit the assessments collected pursuant to this section to the county treasurer, except that municipal courts shall transmit the assessments to the city or town treasurer.

C. The city, town or county treasurer shall transmit the assessments to the state treasurer. The state treasurer shall deposit the assessments in the drag racing prevention enforcement fund established by section 28-603.

§ 12-116.12 Penalty fee; first responder's supplemental death benefit

(Caution: 1998 Prop 105 applies; Rpld. 1/1/33)

A. Beginning from and after June 30, 2025, in addition to any other penalty, fine, fee, surcharge or assessment authorized by law, a person shall pay a penalty fee of $20 on every conviction for a criminal offense.

B. The court shall transmit the penalty fee collected pursuant to this section to the county treasurer, except that municipal courts shall transmit the penalty fee to the city or town treasurer.

C. The city, town or county treasurer shall transmit the penalty fees to the state treasurer. The state treasurer shall deposit the penalty fees, pursuant to sections 35-146 and 35-147, in the state supplemental benefit fund established by section 38-1173.

D. The court may not waive or mitigate the penalty fee.

§ 12-117 Public defender training fund; appropriation

A. The public defender training fund is established consisting of monies allocated to the fund pursuant to section 12-116. The supreme court shall administer the fund.

B. Each month the supreme court shall deposit in the fund the monies collected for the fund. All monies deposited in the fund are continuously appropriated to the supreme court for distribution to each county public defender as provided in subsection C of this section.

C. The allocation of monies collected shall be made to each county public defender office in proportion to the number of felony cases assigned to that office in the last fiscal year.

D. Monies received shall be used exclusively for the purpose of public defender training. Each public defender office receiving training fund monies shall submit to the supreme court an annual report of all financial receipts and expenditures from the training fund.

§ 12-117.01 General adjudication personnel and support fund; exemption; purposes; joint legislative budget committee review

A. The general adjudication personnel and support fund is established consisting of monies appropriated by the legislature. The supreme court shall administer the fund. Monies in the fund are continuously appropriated and are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

B. Monies in the fund shall be used by both:

1. The supreme court to provide additional full-time personnel for the general adjudication as prescribed in section 45-252, subsection D and to provide case management and other support equipment, services and personnel.

2. The department of water resources for additional full-time personnel and other equipment and services related to the general adjudication.

C. For fiscal years 2021-2022 and 2022-2023, before any monies are spent from the fund, the supreme court and the department of water resources shall submit an expenditure plan to the joint legislative budget committee. The chairperson of the joint legislative budget committee shall determine whether the submitted plan requires review before the full committee.

§ 12-118 Use of credit cards by courts; definition

A. A court may accept a credit card, debit card, charge card, electronic transfer or other means as approved by the supreme court or the presiding judge for the payment of any monies payable to the court including but not limited to filing fees, bonds, fines, fees, sanctions, penalties, surcharges, assessments and restitution.

B. The court may impose a convenience fee for payment made pursuant to this section.

C. For the purposes of this section, "convenience fee" means an additional fee that is imposed by the court or an authorized agent for the acceptance of monies pursuant to subsection A of this section.

§ 12-119 Facilities management

The supreme court may obtain operational and maintenance assistance from the department of administration and security assistance from the department of public safety for any supreme court facility or may employ personnel or contract for outside services for the operation, maintenance and security of such facility. The supreme court and division one of the court of appeals shall be housed in the Arizona courts building. For the purposes of this section, security does not mean security services related to building operation and maintenance functions provided by the department of administration.

§ 12-119.01 Supreme court fees; distribution

A. Except as otherwise provided by law, fees for the supreme court shall be established and classified as follows:

Class Description Fee

A Initial case filing fee

Petitions for review

and cross petitions for

Review $ 140.00

Direct appeals and cross

appeal appellant 140.00

Special actions petitioner 140.00

B Subsequent case filing fee

Intervenors direct appeals

and special action $ 70.00

Direct appeals appellee 70.00

Special actions respondent 70.00

Response to petition

for review 70.00

E Minimum clerk fee

Certifications alone $ 17.00

Certificate of good standing

Certificates 17.00

F Per page fee

Copies - each page $ .50

G Special fees

New and duplicate certificates $ 35.00

B. The clerk of the supreme court shall deposit, pursuant to sections 35-146 and 35-147, all of the monies collected pursuant to subsection A of this section as follows:

1. 27.78 per cent in the judicial collection enhancement fund established by section 12-113.

2. 26.00 per cent with the state treasurer for transmission to the elected officials' retirement plan fund established by section 38-802. The monies shall be transmitted by the state treasurer to the fund pursuant to section 38-810.

3. 46.22 per cent in the state general fund.

C. The supreme court may increase the class A and B fees prescribed in subsection A of this section.

§ 12-119.02 Electronic filing and access; fee

A. The supreme court may provide for the electronic filing of documents and electronic access to court records, pursuant to rules adopted by the court.

B. The court may impose a fee of not more than one hundred dollars per year for an annual on-line access subscription plus a fee of not more than two dollars per minute for on-line access to court records.

C. All monies collected pursuant to subsection B of this section shall be deposited, pursuant to sections 35-146 and 35-147, in the judicial collection enhancement fund established by section 12-113.

D. All filings made electronically pursuant to this section are subject to the fees established pursuant to section 12-119.01.

§ 12-119.03 Performance audit; supreme court administration and programs; hearing

The auditor general shall conduct a performance audit, as defined in section 41-1278, of the administrative office of the courts at the request of the joint legislative audit committee that is established pursuant to section 41-1279. The auditor general shall limit the performance audit to the administration and operation of the supreme court and to those programs and funds that are administered by the supreme court. The auditor general shall submit copies of the performance audit to the president of the senate, the speaker of the house of representatives and the chairpersons of the senate judiciary committee and the house of representatives judiciary committee, or their successor committees. The senate and house of representatives judiciary committees shall meet jointly and hold a hearing on the audit.

§ 12-119.04 Evaluation of superior court commissioners

A. The supreme court shall adopt and administer for all superior court commissioners in counties having a population of two hundred fifty thousand persons or more a process, established by court rules, for evaluating superior court commissioner performance. The rules shall include written performance standards and performance reviews that survey opinions of persons who have knowledge of the superior court commissioner's performance.

B. The public shall be afforded a full and fair opportunity for participation in the evaluation process through public hearings, dissemination of evaluation reports and any other methods as the court deems advisable. The supreme court shall publish and maintain current and previous evaluation reports on its website.

§ 12-119.05 Post of duty; supreme court justice

The designated post of duty of a justice of the supreme court who resides outside of Maricopa county shall be deemed to be the justice's place of permanent physical residence at the time of the justice's appointment.

Article 1.1 Court of Appeals

§ 12-120 Creation of court of appeals; court of record; composition; sessions

A. A court of appeals is established and constitutes a single court and such court shall be a court of record.

B. The court of appeals shall be divided into two divisions which shall be designated as division 1 and division 2. Division 1 shall have nineteen judges, consisting of the chief judge and six departments of three judges each, denominated, respectively, department A, department B, department C, department D, department E and department F. Division 2 shall have nine judges, consisting of three departments of three judges each, denominated, respectively, department A, department B and department C.

C. Division 1 shall consist of the counties of Maricopa, Yuma, La Paz, Mohave, Coconino, Yavapai, Navajo and Apache.

D. Division 2 shall consist of the counties of Pima, Pinal, Cochise, Santa Cruz, Greenlee, Graham and Gila.

E. The sessions of divisions 1 and 2 shall be held in Phoenix and Tucson, respectively. Sessions may be held at places other than Phoenix or Tucson when in the opinion of a majority of the judges of a division or department the public interest so requires. The judges of the respective divisions and departments may hold sessions in either division and shall do so when directed by the chief justice of the supreme court. Each judge of the court of appeals may participate in matters pending before a different division or department. A matter may be transferred between divisions in order to equalize caseloads and for the best use of judicial resources.

F. Not more than three judges of the court of appeals, including superior court judges and retired judges sitting with the court, shall hear and determine a matter and render a decision, and a majority of two of the three judges shall be sufficient to render a decision.

§ 12-120.01 Qualifications of judges; terms; ballots; vacancies

A. A judge of the court of appeals shall be:

1. Not less than thirty years of age.

2. Of good moral character.

3. A qualified elector of the county of his residence, and a resident of such county for not less than three years next preceding taking office.

4. A resident of the division in which he is elected.

5. Admitted to the practice of law in the state of Arizona for not less than five years next preceding taking office.

6. A resident of Arizona for not less than five years next preceding taking office.

B. Except for the initial term, each judge shall hold office for a term of six years to commence on the first Monday in January following his retention election and until his successor is appointed and qualified. Each judge shall be appointed by the governor and serve an initial term pursuant to article VI, section 37, Constitution of Arizona.

§ 12-120.02 Election of judges

A. In division 1, of the nineteen judges, ten of the judges shall be residents of and elected for retention from Maricopa county, five of the judges shall be residents of the remaining counties in the division and shall be elected for retention by the voters of the counties in division 1, excluding Maricopa county, and four of the judges shall be at-large judges and be residents of any county in the division. If an at-large judge is a resident of Maricopa county, the judge shall be elected for retention by the voters of Maricopa county. If an at-large judge is not a resident of Maricopa county, the judge shall be elected for retention by the voters of the counties in division 1, excluding Maricopa county.

B. In division 2, of the nine judges, four of the judges shall be residents of and elected from Pima county, two of the judges shall be residents of the remaining counties in the division and shall be elected by the voters of the counties in division 2, excluding Pima county, and three of the judges shall be at-large judges and be residents of any county in the division. If an at-large judge is a resident of Pima county, the judge shall be elected for retention by the voters of Pima county. If an at-large judge is not a resident of Pima county, the judge shall be elected for retention by the voters of the counties in division 2, excluding Pima county.

§ 12-120.03 Salary of judges

Each judge of the court of appeals shall receive an annual salary pursuant to section 41-1904.

§ 12-120.04 Chief judge; duties

A. The chief judge of each division shall be elected annually by the members of the division. The chief judge may be a member of any department of the division. The chief judge shall serve in such capacity until his successor has been elected as provided by this section.

B. The chief judge shall exercise administrative supervision over the division in which he serves, shall have such other duties as may be provided by rules of the supreme court and shall apportion the business to the departments in such manner as to equalize the distribution of business among them.

C. The chief judge may, and upon direction by the chief justice of the supreme court shall, designate one department to hear and determine all reviews authorized by the provisions of section 23-951. Such designated department may also hear and determine other matters assigned to it by the chief judge.

D. In the absence of the chief judge from the place at which the court is held, or his inability to act, the other judges shall select one of their own number to perform the duties and exercise the powers of the chief judge during such absence or inability to act.

E. The judges of each department shall periodically select a presiding judge and a member to act as the presiding judge to perform the duties and exercise the powers of the presiding judge during the absence or inability to act of the presiding judge.

F. The chief judge of division 2 shall be eligible to be the presiding judge of a department.

G. The chief judge of division 1 shall designate one department to hear and determine all appeals authorized by section 12-170. This department may also hear and determine other matters assigned to it by the chief judge.

§ 12-120.05 Seal; affixing of seal

A. The court of appeals shall have a seal which shall be kept by the clerk of each division.

B. The seal of the court of appeals need not be affixed to any proceedings in the court except a summons, writ or authentication of a copy of a record or proceedings of the court or its officers for the purpose of record or evidence in another court or place.

C. The seal may be affixed by impressing it on the paper or on a substance attached to the paper and capable of receiving an impression.

§ 12-120.06 Days for transaction of business

The court of appeals shall at all times be open for transaction of business except on nonjudicial days.

§ 12-120.07 Opinions; publication

A. The chief judge shall assign three of the judges to each department, and such assignment may be changed by him from time to time. Each of the departments shall have the power to hear and determine causes and all questions arising therein. The presence of three judges shall be necessary to transact any business in either of the departments; except such as may be done in chambers and except as may be otherwise permitted by law. The opinions of a division or of a department of the court of appeals shall be in writing, the grounds stated, and shall be concurred in by a majority of a department if heard by a department or of the division if heard by the division. An opinion of a division or a department of a division shall be the opinion of the court of appeals.

B. The opinions of the court of appeals shall be published and distributed in the same manner as provided for the publication and distribution of opinions of the supreme court.

C. Not later than sixty days preceding the regular primary election for the retention of an appellate court judge, the commission on judicial performance review shall prepare and publish on its website a list of the decisions of that appellate court judge including the decision's official citation and an electronic copy of the entire text of the decision.

§ 12-120.08 Appointment of clerk; oath; compensation

A. Each division shall appoint a clerk of the court and other required personnel, all of whom shall serve at the pleasure of the court.

B. The clerk of each division shall, before entering on the duties of his office, take the oath of office.

C. The clerk and other personnel shall receive compensation as determined pursuant to section 38-611.

§ 12-120.09 Duties of clerk; records; certified copies

A. The clerk of each division shall:

1. Issue writs and processes of the court.

2. Enter, under the direction of the court, all orders, judgments and decrees required to be entered, the title of each action, the date of filing it in the court of appeals, and a memorandum of all subsequent proceedings, with the date and the fees charged.

3. Keep such other records and perform such other duties as required by law or the court.

B. The clerk shall furnish a certified copy of any record or proceeding of the court on receiving the fee for the copy, except that no fee shall be required from state or other public officers whose duties require such certified copy.

C. The clerk of each division of the court of appeals may destroy or provide for the destruction of all documents, records, instruments, books, papers, depositions, exhibits and transcripts in any action or proceeding in the court of appeals, or otherwise filed or deposited in the clerk's custody pursuant to rules established by the supreme court.

D. A photographic or electronic reproduction or image of any of the records described in this section, which has been certified by the person in charge of such reproduction as being an exact replica of the original, shall be received in evidence in all courts, and in hearings before any officer, board or commission having jurisdiction or authority to conduct such hearings, in like manner as the original.

E. The clerk shall notify the director of the Arizona state library, archives and public records of records designated for destruction pursuant to court rules. The state library, during the time prescribed by court rule, may review and inspect these records. During this time period, the state library may remove any of these records for storage and retrieval.

§ 12-120.10 Post of duty

The designated post of duty of judges of the court of appeals who are elected by the voters of the counties in division one, excluding Maricopa county, and in division two, excluding Pima county, as prescribed by the terms of section 12-120.02, shall be deemed to be their place of physical residence.

Article 1.2 Jurisdiction and Venue

§ 12-120.21 Jurisdiction and venue

A. The court of appeals shall have:

1. Appellate jurisdiction in all actions and proceedings originating in or permitted by law to be appealed from the superior court, except criminal actions involving crimes for which a sentence of death has actually been imposed.

2. Jurisdiction to issue writs of certiorari to review the lawfulness of awards of the industrial commission and to enter judgment affirming or setting aside the awards.

3. Jurisdiction to issue injunctions and other writs and orders necessary and proper to the complete exercise of its appellate jurisdiction.

4. Jurisdiction to hear and determine petitions for special actions brought pursuant to the rules of procedure for special actions, without regard to its appellate jurisdiction.

B. A case or appeal of which the court of appeals has jurisdiction in an action or proceeding originating in or permitted by law to be appealed from the superior court in a county shall be brought or filed in the division which contains that county. An application for a writ of certiorari to review the lawfulness of an award of the industrial commission shall be brought in division 1.

§ 12-120.22 Appeals; transfer of case, appeal or petition for a writ

A. Appeals to the court of appeals shall be taken from the superior court in the manner prescribed for appeals to the supreme court and within like time.

B. No case, appeal or petition for a writ brought in the supreme court or court of appeals shall be dismissed for the reason only that it was not brought in the proper court or division, but it shall be transferred to the proper court or division.

§ 12-120.23 Transfer of case and appeal by the supreme court

The supreme court may transfer to the court of appeals for decision a case or appeal pending before the supreme court if the case or appeal is within the jurisdiction of the court of appeals.

§ 12-120.24 Rehearing review by supreme court; issuance of mandate

A party against whom a decision has been rendered or against whom a motion for dismissal of the action has been granted in the court of appeals may file in such court a motion for rehearing after the rendition of the decision or order of dismissal, setting forth with particularity the reasons why he believes the decision or order of dismissal erroneous. The opposite party may file his response to such motion. If the motion is denied, and the party against whom the decision or order has been rendered desires a further review by the supreme court, he shall serve upon the opposite party and file with the clerk of the division a statement that he desires such review. The clerk of the division shall thereupon transmit the record in the case to the clerk of the supreme court. The supreme court shall either grant or deny the request for review. No further briefs or oral argument shall be filed or had unless the supreme court so directs. If no request for review by the supreme court has been filed, or upon the receipt from the clerk of the supreme court of notification that the request for review has been denied, the clerk of the division shall, if the matter has been decided by formal opinion, issue the mandate of the court of appeals, if no written formal opinion has been rendered then by certified copy of the order of the court.

Article 1.3 Fees and Costs

§ 12-120.31 Fees and costs; distribution

A. Fees and costs in the court of appeals shall be the same as supreme court fees and costs pursuant to section 12-119.01.

B. Fees charged by the court of appeals for electronic filing of documents and electronic access shall be the same amount as fees charged by the supreme court and are subject to the provisions of section 12-119.02.

C. The court of appeals shall retain 8.36 per cent of all of the monies it collects monthly pursuant to subsection A of this section. The retained monies shall be used to improve, maintain and enhance the ability to collect and manage monies assessed or received by the court, to improve court automation and to improve case processing or the administration of justice. The clerk of the court of appeals shall submit a plan to the supreme court that the supreme court shall approve before the court spends the retained monies.

D. Excluding the monies that are retained pursuant to subsection C of this section, the clerk of the court of appeals shall deposit, pursuant to sections 35-146 and 35-147, all monies collected pursuant to subsection A of this section as follows:

1. 19.42 per cent in the judicial collection enhancement fund established by section 12-113.

2. 26.00 per cent with the state treasurer for transmission to the elected officials' retirement plan fund established by section 38-802. The monies shall be transmitted by the state treasurer to the fund pursuant to section 38-810.

3. 46.22 per cent in the state general fund.

§ 12-120.32 Additional fees

A. No additional fees shall be charged when an appeal or petition for a writ is transferred to another court.

B. The filing fees required under section 12-119.01 for petitions for review of a decision of the court of appeals, cross petitions for review and responses to petitions for review shall be paid at the time of filing pursuant to the rules of civil appellate procedure. A party who files a cross petition for review shall not pay a subsequent filing fee for a response. A party who fails to file a response or who fails to appear in the proceeding shall not be charged a fee and shall not be entitled to be heard. No fee may be charged for filing a special action or a response to a special action arising out of a criminal case if the defendant has been declared indigent by the trial court.

Article 2 The Superior Court

§ 12-121 Number of judges; petition for approval of additional judges; additional method

A. In each county of the state there shall be a superior court for which at least one judge shall be elected. In each county having a census enumeration greater than thirty thousand inhabitants, and upon petition by the board of supervisors of such county to the governor and his approval thereof, there shall be an additional judge of the superior court for each thirty thousand inhabitants, or majority fraction thereof, or the additional judge of the superior court may be authorized, based on the procedure prescribed by the terms of subsections B and C.

B. Upon petition by the board of supervisors of a county to the governor and his approval thereof, there shall be an additional judge of the superior court provided that the board of supervisors has determined, as prescribed in subsection C, that the county has acquired since the last census enumeration the required number of inhabitants for an additional judge as provided in subsection A.

C. The determination of the board of supervisors shall be based on, but not limited to, recent estimates of population, if any, of any area within the county issued by the bureau of the census, auto registrations, nonagricultural employment, gross utility revenues and retail sales.

D. Additional judges authorized by the terms of this section shall be appointed or elected as provided by law.

§ 12-122 General power of superior court

The superior court, in addition to the powers conferred by constitution, rule or statute, may proceed according to the common law.

§ 12-123 Jurisdiction and powers

A. The superior court shall have original and concurrent jurisdiction as conferred by the constitution, and concurrent jurisdiction with justices of the peace of misdemeanors where the penalty does not exceed a fine of two thousand five hundred dollars or imprisonment for six months.

B. The court, and the judges thereof, shall have all powers and may issue all writs necessary to the complete exercise of its jurisdiction.

§ 12-124 Appellate jurisdiction; issuance of writs

A. The superior court shall have appellate jurisdiction in all actions appealed from justices of the peace, inferior courts, boards and officers from which appeals may, by law, be taken.

B. The superior court may issue writs of certiorari to inferior courts, boards or officers to compel a return of their proceedings, examine or try such proceedings and give any judgment or make any order necessary in furtherance of justice.

C. The superior court may issue writs of prohibition or other remedial writs necessary to carry out its powers.

§ 12-125 Procedure for appeal when not prescribed

When the right of appeal to the superior court from an officer, board or commission is provided by law, but the manner of taking the appeal and the procedure thereon is not prescribed, the laws relating to taking appeals from courts of justices of the peace shall apply insofar as conformable.

§ 12-126 Seal; affixing of seal

A. The superior court shall have a seal which shall be the vignette of Abraham Lincoln with the words "seal of the superior court of the state of Arizona in and for the county of ____________" surrounding the vignette. The seal shall be kept by the clerk of the court.

B. The seal of the superior court need not be affixed to any proceedings in the court except a summons or writ, the proof of a will, the appointment of an executor, administrator or guardian, or the authentication of a copy of a record or proceedings of the court or its officers for the purpose of record or evidence in another court or place.

C. The seal may be affixed by impressing it on the paper or on a substance attached to the paper, and capable of receiving the impression.

§ 12-127 Days for transaction of business; exceptions

A. The superior court shall at all times be open for transaction of business except on nonjudicial days. The superior court shall not transact business on a legal holiday except:

1. To give, on its request, instructions to a jury deliberating on its verdict.

2. To receive a verdict or discharge a jury.

3. For the exercise of the powers of a magistrate in a criminal action or in a proceeding of a criminal nature.

B. Writs of injunction, attachment, garnishment, replevin and prohibition may be issued and served on any day.

C. With the approval of the presiding judge of the county, business shall be transacted in the division of the superior court of that county on the second Monday in October if the board of supervisors designates the Friday after the fourth Thursday in November a legal holiday in place of the second Monday in October.

D. A division of the superior court shall not be open for the transaction of business on the Friday after the fourth Thursday in November if the division of the superior court of that county is open for the transaction of business on the second Monday in October pursuant to subsection C of this section.

§ 12-128 Salary of judges; payment by state and counties

Judges of the superior court shall each receive an annual salary pursuant to section 41-1904, which is payable one-half by this state and one-half by the counties respectively, except that in counties with a population of more than two million persons, in:

1. Fiscal year 2010-2011 through fiscal year 2018-2019, the county shall pay one hundred percent of the annual salary.

2. Fiscal year 2019-2020, the county shall pay seventy-five percent of the annual salary and this state shall pay twenty-five percent of the annual salary.

3. Fiscal year 2020-2021 and each fiscal year thereafter, the county shall pay fifty percent of the annual salary and this state shall pay fifty percent of the annual salary.

§ 12-128.01 Receipt of salary by judges and commissioners; affidavit; pending and undetermined causes; violation; classification

A. A superior court judge or commissioner shall not receive his salary unless such judge or commissioner either certifies that no cause before such judge or commissioner remains pending and undetermined for sixty days after it has been submitted for decision or there is submitted by the chief justice of the Arizona supreme court a certification that such superior court judge or commissioner has had a physical disability during the preceding sixty days or that good and sufficient cause exists to excuse the application of this section to particularly identified litigation then pending.

B. Any certification submitted by the chief justice pursuant to subsection A shall set forth in detail the nature and duration of the physical disability involved or the reason why subsection A should not apply to the specified pending litigation.

C. Any person who issues or causes to be issued any check, warrant or payment to a judge or commissioner knowing that, pursuant to this section, such judge or commissioner should not receive his salary is guilty of a class 3 misdemeanor.

§ 12-129 Expenses of judge sitting in other county or supreme court

A. When a judge of the superior court in any county is called into another county by the superior judge thereof, or by the governor, to hold court or preside over any proceeding, the judge shall be paid a per diem subsistence allowance pursuant to section 38-624 by the county into which the judge is called. The board of supervisors shall pay the per diem amount only on the order of the presiding judge of the court in which the legal proceedings are held.

B. The expenses of superior court judges called to sit with the supreme court shall be paid from the general fund of the state.

§ 12-130 Place of holding court; accommodations

A. The regular sessions of the superior court shall be held at the county seat and at such other places within the county authorized by the county board of supervisors.

B. If a room for holding the court is not provided by the county, together with attendants, fuel, lights and supplies suitable and sufficient for the transaction of business, the court may direct the sheriff to provide them and the expenses shall be a county charge.

C. In addition to regular sessions, sessions of the superior court may be held at places other than the county seat or other place within the county authorized by the board of supervisors when in the opinion of the judge or judges of such court in any county the public interest so requires, provided facilities are available for such sessions.

§ 12-131 Commission on trial court appointments; notification; appointment of nonattorney member; time limits

A. At least ninety days before a term of a nonattorney member on a commission on trial court appointments expires the commission shall notify the member of the board of supervisors from the district in which the vacancy will occur of that vacancy.

B. Pursuant to article VI, section 41, Constitution of Arizona at least ninety days before a term of a nonattorney member on a commission on trial court appointments expires or within twenty-one days of a vacancy occurring for a nonattorney member on the commission for trial court appointments, the member of the board of supervisors from the district in which the vacancy has occurred shall appoint a nominating committee of seven members who reside in the district, not more than four of whom may be from the same political party. The makeup of the nominating committee shall to the extent feasible, reflect the diversity of the population of the district. Nominating committee members shall not be attorneys and shall not hold any governmental office, elective or appointive, for profit.

C. The nominating committee, within twenty days after being appointed, shall provide public notice that a vacancy exists and shall solicit applications.

D. The nominating committee, within sixty days after providing public notice that a vacancy exists, shall review the applications and forward to the governor all applications along with the committee's recommendations for appointment.

E. Pursuant to section 38-211, the governor may appoint a nonattorney member to a commission on trial court appointments without being forwarded an application from a nominating committee if any of the following applies:

1. A member of the board of supervisors does not appoint a nominating committee within twenty-one days of a vacancy occurring for a nonattorney member on the commission on trial court appointments.

2. The nominating committee does not provide public notice that a vacancy exists on the commission on trial court appointments within twenty days of appointment.

3. The nominating committee does not forward all applications to the governor within sixty days of providing public notice that a vacancy exists.

§ 12-132 Regional mental health courts; establishment; authority to adjudicate

A. In counties that have a population of less than two hundred fifty thousand persons the presiding judges of the superior court may agree to establish a regional mental health court. A superior court judge of a court that participates in a regional mental health court may refer a case to the regional mental health court. A judicial officer in a county that participates in a regional mental health court has the authority to adjudicate a case referred to a regional mental health court.

B. The originating court shall notify the prosecutor of any criminal case referred to the mental health court.

§ 12-133 Arbitration of claims; agreement of reference; arbitration award; powers of arbitrators; compensation of arbitrators; appeals; deposits; costs

A. The superior court, by rule of court, shall do both of the following:

1. Establish jurisdictional limits of not to exceed sixty-five thousand dollars for submission of disputes to arbitration.

2. Require arbitration in all cases which are filed in superior court in which the court finds or the parties agree that the amount in controversy does not exceed the jurisdictional limit.

B. The court may waive the arbitration requirement on a showing of good cause if all parties file a written stipulation waiving the arbitration requirement.

C. The court shall maintain a list of qualified persons within its jurisdiction who have agreed to serve as arbitrators, subject to the right of each person to refuse to serve in a particular assigned case and subject further to the right of any party to show good cause why an appointed arbitrator should not serve in a particular assigned case. The court rules shall provide that the case subject to arbitration shall be assigned for hearing to a panel of three arbitrators, or in the alternative, to a single arbitrator, each of whom shall be selected by the court.

D. Regardless of whether or not suit has been filed, any case may be referred to arbitration by an agreement of reference signed by the parties or their respective counsel for both sides in the case. The agreement of reference shall define the issues involved for determination in the arbitration proceeding and may also contain stipulations with respect to agreed facts, issues or defenses. In such cases, the agreement of reference shall take the place of the pleadings in the case and shall be filed of record.

E. The arbitration award shall be in writing, signed by a majority of the arbitrators and filed with the court. The court shall enter the award in its record of judgments. The award has the effect of a judgment on the parties unless reversed on appeal.

F. The arbitrators shall administer oaths or affirmations and conduct the hearings pursuant to court rule. The clerk of the superior court shall issue subpoenas, which are enforceable as provided by law.

G. Each arbitrator shall be paid a reasonable sum, not to exceed one hundred forty dollars per day, to be specified by the rules of the appointing court, for each day necessarily expended by the arbitrator in the hearing and determination of the case. The compensation of the arbitrators shall be paid by the county, in which the court has jurisdiction, from its general revenues and shall not be taxed as costs.

H. Any party to the arbitration proceeding may appeal from the arbitration award to the court in which the award is entered by filing, within the time limited by rule of court, a demand for trial de novo on law and fact.

I. On appeal, at the time of filing the demand for trial de novo, and as a condition of filing, the appellant shall deposit a sum equal to the total compensation of the arbitrators, but not exceeding ten per cent of the amount in controversy, which sum shall be deposited with the county. If the court finds that the appellant is unable to make the deposit by reason of lack of funds, the court shall allow the filing of the appeal without the deposit. On motion of the appellant within thirty days after the judgment on the trial de novo, the deposit shall be refunded to the appellant if the judgment on the trial de novo is at least twenty-three per cent more favorable than the monetary relief or other type of relief granted by the arbitration award. If the judgment on trial de novo is not at least twenty-three per cent more favorable than the monetary relief or other type of relief granted by the arbitration award, the court, on its own motion or on motion of the appellee within thirty days after the judgment on the trial de novo, shall order that the deposit be used to pay, or that the appellant pay if the deposit is insufficient, the following costs and fees, unless the court finds on motion that the imposition of the costs and fees would create such a substantial economic hardship as not to be in the interest of justice:

1. To the county, the compensation actually paid to the arbitrator.

2. To the appellee, those costs taxable in any civil action and reasonable attorney fees as determined by the trial judge for services necessitated by the appeal.

3. Reasonable expert witness fees that are incurred by the appellee in connection with the appeal.

J. If the court does not provide an order for the disposition of the deposit required by subsection I of this section within ninety days after the final disposition of the trial de novo, the clerk of the court shall transfer the deposit to the county general fund in an amount not to exceed the deposit but sufficient to reimburse the county for the compensation actually paid to the arbitrator and shall refund any balance of the deposit to the appellant.

K. An arbitrator is personally immune from suit with respect to all acts done and actions taken in furtherance of the purposes of this section.

L. The jurisdictional limit under subsection A, paragraph 1 of this section does not apply to arbitration that is conducted under an alternative dispute resolution program approved by the supreme court.

§ 12-134 Mediation; fee

A. A court may refer cases to mediation and other alternative dispute resolution procedures to promote the resolution of cases filed in the court.

B. The board of supervisors in each county, in cooperation with the presiding judge of the superior court in the county, may establish a reasonable fee for alternative dispute resolution services provided by the court in the county. If a judicial officer provides the alternative dispute resolution services, a fee shall not be imposed. The superior court in each county shall transmit the fees collected pursuant to this section to the county treasurer for deposit in the local alternative dispute resolution fund established pursuant to section 12-135.01.

§ 12-135 Alternative dispute resolution fund

A. The alternative dispute resolution fund is established consisting of monies deposited in the fund pursuant to section 12-284.03, subsection A, paragraph 5, section 22-281, subsection C, paragraph 2 and section 41-178.

B. Courts wishing to participate in the alternative dispute resolution program may apply to the supreme court for funding. The supreme court shall administer the fund and may expend monies in the fund for local, regional or statewide projects that establish, maintain, improve or enhance alternative dispute resolution programs.

C. On notice from the supreme court, the state treasurer shall invest and divest monies in the alternative dispute resolution fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

D. Monies from the alternative dispute resolution fund that are provided to local courts shall be used to supplement, not supplant, local funding that would otherwise be made available for alternative dispute resolution programs.

E. The supreme court shall use monies that are deposited in the fund pursuant to section 12-284.03, subsection A, paragraph 5 to implement, administer and fund alternative dispute resolution programs for the superior court in the counties that apply for funding.

F. The supreme court shall use monies that are deposited in the fund pursuant to section 22-281, subsection C, paragraph 2 to implement, administer and fund alternative dispute resolution programs for justice courts that apply for funding.

G. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

§ 12-135.01 Local alternative dispute resolution fund; report

A. If an alternative dispute resolution fee is established pursuant to section 12-134, the county treasurer shall establish a local alternative dispute resolution fund. The superior court shall transmit monthly to the county treasurer for deposit in the local alternative dispute resolution fund all fees that are collected pursuant to section 12-134.

B. The presiding judge of the superior court shall administer the fund and may expend monies in the fund to establish, maintain, evaluate and enhance programs that are developed pursuant to sections 12-133 and 12-134. The county treasurer shall disburse monies from the fund only at the direction of the presiding judge of the superior court.

C. On notice from the presiding judge of the superior court, the county treasurer shall invest and divest monies in the fund, and monies earned from investments shall be credited to the fund.

D. Monies in the fund shall be used to supplement, not supplant, funding that would otherwise be made available for alternative dispute resolution programs.

E. On or before January 10 of each year, the county treasurer shall submit an annual report to the presiding judge of the superior court indicating the total amount of monies in the local alternative dispute resolution fund.

§ 12-136 Tribal courts; involuntary commitment orders; recognition

A. Notwithstanding any law to the contrary, an involuntary commitment order of an Arizona tribal court filed with the clerk of the superior court shall be recognized and is enforceable by any court of record in this state, subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of the court. The Arizona supreme court may adopt rules regarding recognition of tribal court involuntary commitment orders. The state, through the attorney general, shall be given notice of the filing at the time the commitment order is filed and shall have five days from receipt of the written notice of the filing of the order to appear as a party and respond. A patient committed to a mental health treatment facility under this section is subject to the jurisdiction of the state.

B. Decisions regarding discharge or release of a patient committed pursuant to subsection A of this section shall be made by the facility providing involuntary treatment. Ten days before discharge or release, the mental health treatment facility shall notify the tribal court that issued the involuntary commitment order of the facility's intention to discharge or release a patient. Any necessary outpatient follow-up and transportation of the patient to the jurisdiction of the tribal court, within the time set forth in the notice, shall be provided for in an intergovernmental agreement between the tribe and the Arizona health care cost containment system.

C. A mental health treatment facility may admit a patient for involuntary treatment pending the filing of a tribal court's involuntary commitment order with the clerk of the superior court pursuant to subsection A of this section. The mental health treatment facility must discharge the patient if the tribal court order is not filed with the clerk of the superior court by the close of business on the next day that the court is open after the admission of the patient unless that day is a tribal holiday in which case the tribal court order must be filed with the clerk of the superior court by the close of business on the following day. If the patient is discharged pursuant to this subsection, the patient shall be transported to the jurisdiction of the tribal court in the same manner provided in subsection B of this section.

§ 12-137 Civil case assignment

A. The assignment of a civil case to a superior court judge in a county with a population of more than one million persons must be done by either automated means or a formula that is approved by the supreme court and must be done in a blind manner. In an emergency matter or when a judge who is assigned to a case becomes unavailable, the superior court must assign a judge in a blind manner, except that the superior court may account for judicial availability. The superior court may deviate from a blind assignment protocol to ensure that cases are assigned to appropriate specialty courts for tax, complex, commercial and water rights cases.

B. A judge may not select a case for assignment to the judge. A judge may not refuse to accept an assigned case unless good cause exists or a court rule or ethical consideration requires or allows for refusal.

Article 3 Judges Pro Tempore

§ 12-141 Appointment of judges pro tempore

Upon request of the presiding judge of the superior court in any county the chief justice of the state supreme court may appoint judges pro tempore of the superior court for such county in the manner provided by this article and subject to the approval of the board of supervisors of the county.

§ 12-142 Qualifications of judge pro tempore; residence; salary; exclusion from retirement provisions

A. A judge pro tempore of the superior court shall be:

1. Not less than thirty years of age.

2. Of good moral character.

3. Admitted to the practice of law in this state for not less than five years next preceding his appointment.

4. A resident of this state for not less than five years next preceding his appointment.

B. A judge pro tempore may be appointed to serve in the county of his residence or in a county of which he is not a resident.

C. The salary of a judge pro tempore shall be paid for the period of the appointment based on an annual salary equal to that of a superior court judge. A judge pro tempore may agree in advance to donate any or all of his services.

D. Judges pro tempore are not subject to any provision of law relating to the retirement of judges.

§ 12-143 Payment of salaries and other expenses; providing facilities; judicial employees

A. The salary of a judge pro tempore shall be paid one-half by the state and one-half by the county to which such judge is assigned.

B. The sessions of the superior court presided over by a judge pro tempore shall be held wherever the county board of supervisors may direct, if approved by the chief justice of the supreme court. The expense for the court and other required facilities such as attendants, judicial employees, fuel, lights and supplies suitable and sufficient for the transaction of business shall be provided by the county.

C. Assignment of judicial employees to the court over which a judge pro tempore presides, such as any deputy clerk of the court, certified superior court reporter, bailiff, interpreter and adult probation officer, shall be made by the county.

§ 12-144 Limitations; term; reappointment; extension of duties; powers and duties

A. The chief justice of the supreme court may appoint a judge pro tempore of the superior court for a county pursuant to section 12-141 without regard to the number of judges that are prescribed by section 12-121.

B. The term of a judge pro tempore may be for any period of time not to exceed twelve months for any one term. The chief justice may reappoint a person who was previously appointed as a judge pro tempore. The chief justice may at any time terminate the term of a judge pro tempore.

C. The judicial powers and duties of a judge pro tempore shall extend beyond the period of the judge pro tempore's appointment for the purpose of hearing and determining any proceeding necessary to a final determination of a cause heard by the judge in whole or in part during the period of the judge's appointment.

D. The powers and duties of a judge pro tempore of the superior court are the same as are provided for superior court judges in article 2 of this chapter.

§ 12-145 Appointment of judges pro tempore of the court of appeals

Upon request of the chief judge of a division of the court of appeals, the chief justice of the state supreme court may appoint judges pro tempore of the court of appeals for such division in the manner prescribed by this article, subject to the availability of appropriated funds.

§ 12-146 Qualifications of court of appeals judge pro tempore; residence; salary; exclusion from retirement provisions

A. A judge pro tempore of the court of appeals shall be:

1. Not less than thirty years of age.

2. Of good moral character.

3. Admitted to the practice of law in this state for not less than five years next preceding his appointment.

4. A resident of this state for not less than five years next preceding his appointment.

B. A judge pro tempore may be appointed to serve in the division of his residence or in a division of which he is not a resident.

C. The salary of a judge pro tempore shall be paid for the period of his appointment based on an annual salary equal to that of a judge of the court of appeals. A judge pro tempore may agree in advance to donate any or all of his services.

D. Judges pro tempore are not subject to any provision of law relating to the retirement of judges.

§ 12-147 Limitations; term; reappointment; extension of duties; powers and duties

A. The chief justice of the state supreme court may appoint a judge pro tempore for a division of the court of appeals as provided for in section 12-145 without regard to the number of judges prescribed by section 12-120, subsection B.

B. The term of a judge pro tempore may be for any period of time not to exceed six months for any one term, and a person previously appointed as judge pro tempore may be reappointed by the chief justice. The chief justice may at any time terminate the term of a judge pro tempore.

C. The judicial powers and duties of a judge pro tempore shall extend beyond the period of his appointment for the purpose of hearing and determining any proceeding necessary to a final determination of a cause heard by him in whole or in part during the period of his appointment.

D. The powers and duties of a judge pro tempore of the court of appeals are the same as are provided for court of appeals judges in article 1.1 of this chapter, relating to the court of appeals.

Article 4 Tax Court

§ 12-161 Definition of tax court

A. In this chapter, unless the context otherwise requires, "tax court" means the tax department of the superior court in Maricopa county when exercising the original jurisdiction of the superior court over cases of equity and at law which involve the legality of any tax, impost or assessment.

B. This court shall be known as the Arizona tax court.

§ 12-162 Administration of the tax court; principal office; travel expenses; facilities; employees

A. The tax court is under the administrative supervision of the presiding judge of the superior court in Maricopa county, who shall establish the personnel and budget requirements of the principal office of the court.

B. The principal office of the tax court is at the superior court in Maricopa county, which county shall fund the personnel and budget requirements of the principal office as determined by the presiding judge.

C. The tax court may hold hearings in any county seat to provide a reasonable opportunity for taxpayers to appear before the court. If the court holds hearings in any county other than the county in which the principal office is located, the travel and per diem expenses of the tax judge and tax court staff shall be paid by the county in which the tax court is sitting.

D. If holding court in any county other than the county in which the principal office is located, the county in which the tax court is sitting shall provide reasonable access to existing facilities for the hearing and trial of tax cases in accordance with section 12-130 and guidelines approved by the supreme court.

E. The clerk of the tax court shall be a deputy clerk of the superior court.

§ 12-163 Assignment to tax court

A. Except as provided in subsection B of this section, if it appears from the pleadings or other pleadings filed with the superior court that an action involves the imposition, assessment or collection of a tax, including all questions of law and fact relating to disputes about taxes, or the providing of tax decisions, arising under title 5, chapter 1, 2, 3 or 4, title 23, chapter 4 or 6 or title 20, 28, 42, 43 or 48, or disputes between political subdivisions of this state regarding taxes, except for criminal cases which involve any of the foregoing, the presiding judge of the superior court shall assign the action to the tax court. Actions involving appeals to the superior court concerning taxes imposed or collected by local jurisdictions shall also be assigned by the presiding judge to the tax court.

B. An action involving the imposition, assessment or collection of a tax, including questions of law or fact relating to a dispute about taxes, arising under title 42, chapters 11 through 16 may be filed in either the tax court or the superior court.

C. The supreme court shall adopt rules regarding the identification and assignment of actions to the tax court including a requirement that any action involving matters to be assigned to the tax court under subsection A of this section be identified as a tax court matter at the time of filing, by captioning the pleading "in the Arizona tax court".

D. If any order not amounting to a judgment has been entered by the superior court prior to assignment of the matter to the tax court, the tax court, on application of any party or on its own motion within thirty days after the assignment, may reconsider any order so entered.

§ 12-164 Qualifications and assignment of tax judge; qualifications and appointments of judges pro tempore and commissioners assigned to the tax court

A. A judge of the tax court shall be a superior court judge who has been duly selected as provided by law and assigned to the tax court by the presiding judge of the superior court in Maricopa county.

B. In addition to the qualifications prescribed by law for a superior court judge, a judge of the tax court shall demonstrate a willingness to specialize in tax cases and a willingness to serve as a tax judge for at least two years or the remainder of his current term of office, whichever is less.

C. In addition to the qualifications set forth in section 12-142, a judge pro tempore appointed to serve in the tax court by the chief justice of the supreme court pursuant to section 12-141 shall qualify under minimum standards of experience and education in tax law established by the supreme court.

D. In addition to the qualifications set forth in section 12-211, a court commissioner appointed to serve in the tax court by the presiding judge of Maricopa county pursuant to section 12-213 shall qualify under minimum standards of experience and education in tax law established by the supreme court.

§ 12-165 Venue; change of judge

A. All actions involving disputes arising under the jurisdiction of the tax court shall be brought in the superior court in Maricopa county.

B. Except for actions that involve disputes about taxes arising under title 42, chapters 11 through 16, an action involving a tax, impost or assessment that is filed in another county shall be transferred to the tax court.

C. A change of judge in the tax court shall be granted only for cause as prescribed in section 12-409. If a party to an action described by section 12-163, subsection B, exercises its right to a change of judge, the action shall not be reassigned to the tax court.

§ 12-166 Commencement of proceedings

Except as provided in this article, proceedings in the tax court shall be governed by the rules of civil procedure in the superior court.

§ 12-167 Filing fees; filing by mail

A. Except as provided in subsection B of this section, the filing and appearance fees in the tax court are the same as the statutory fees in the superior court and are subject to the same exemptions provided by law for this state or a county, city, town or political subdivision.

B. The filing and appearance fees for small claims actions in the tax court are established pursuant to section 12-284 and are subject to the same exemptions provided by law for this state or a county, city, town or political subdivision. If the tax judge determines that a small claims action should be heard as a regular tax court case, the judge shall require the parties to pay the full fees prescribed in subsection A of this section less any filing and appearance fees already paid.

C. Actions filed in the tax court are subject to all fees for the services and in the amounts prescribed in section 12-284 for the clerk of the superior court.

D. Filings with the tax court may be made by mail. If a pleading is filed by mail, the date of the postmark is the date of filing.

§ 12-168 Proceedings

A. Proceedings before the court are original, independent proceedings and shall be tried de novo.

B. If an action is an appeal from an order or determination of an administrative agency, the action shall be an original proceeding in the nature of a suit to set aside the order or determination.

§ 12-169 Rules of procedure; reporting

A. The superior court in Maricopa county may adopt rules of procedure and practice for the tax court if supplemental rules to the existing rules of civil procedure for the superior court and the uniform rules of practice of the superior court are needed to simplify procedures and pleadings in the tax court. All rules of the tax court shall be approved by the supreme court.

B. All proceedings before the tax court, except small claims proceedings, shall be officially reported unless this requirement is waived by the parties with the consent of the tax judge.

§ 12-170 Decisions; judgment; appeal

A. The tax court, except when it is sitting as a small claims tax court, shall render its decision in writing and, on its own motion or at the request of a party, include a concise statement of the facts found and the conclusions of law reached by the court.

B. In its judgment the court shall grant the relief, invoke the remedies and issue any orders which are appropriate to its decision.

C. The judgment is final unless within thirty days after the entry of the judgment a notice of appeal is filed with the clerk of the tax court. The appeal shall be heard by a department of division 1 of the court of appeals designated by the chief judge of the division pursuant to section 12-120.04.

§ 12-171 Publication of decisions

Decisions of the tax court that the court finds are of general public interest, other than decisions relating to ad valorem property tax, shall be published and distributed in the same manner as provided for the publication and distribution of the opinions of the supreme court.

§ 12-172 Small claims procedures; election; judge

A. A taxpayer may elect to use simplified, small claims procedures in the following cases:

1. Disputes concerning the valuation or classification of property in which the property is class three property as described in section 42-12003 or in which the full cash value of all real or personal property does not exceed two million dollars. If the case under this paragraph is based on the income approach to value, the taxpayer shall comply with section 42-16052 no later than ten business days before the hearing.

2. Disputes concerning all other taxes in which the amount of the taxes, interest at the time of assessment and penalties in dispute is less than five thousand dollars.

B. A taxpayer elects to use small claims procedures by indicating in the caption of the complaint that the matter is a small claims procedure in the tax court.

C. The judge or a commissioner of the tax court shall hear small claims cases.

§ 12-173 Notice; dismissal; removal

A. After the taxpayer makes an election to use small claims procedures, the applicable state or local taxing authority shall be notified and provided a copy of the complaint by mail by the clerk of the tax court and becomes a party to the small claims case after receiving the notice.

B. A taxpayer may dismiss a small claims case before the entry of judgment by notifying the clerk of the tax court in writing. A dismissal by the taxpayer is with prejudice.

C. The judge or commissioner may reclassify a small claims procedure as a regular tax court case if the requirements of section 12-172 are not met.

§ 12-174 Hearing; representation; no appeal right

A. A small claims hearing shall be informal and the judge or commissioner may hear any testimony and receive any evidence necessary for a just and equitable determination of the case. All testimony shall be given under oath.

B. A party in a small claims case may appear on his own behalf or may be represented by an attorney licensed in this state or any other person the court allows to participate in the hearing.

C. The judgment in a small claims case in the tax court is conclusive on all parties and shall not be appealed. The judgment may include any orders necessary to effectuate the judgment but shall not be considered as judicial precedent or be given any effect in any other proceeding.

Chapter 2 Judicial Officers and Employees

Article 1 Clerk of the Supreme Court

§ 12-201 Oath; office; deputies

A. The clerk of the supreme court shall, before entering on the duties of his office, take the oath of office.

B. The clerk shall keep his office at the capitol, and may appoint deputies.

§ 12-202 Duties; record of proceedings; certified copies

A. The clerk shall:

1. Attend sessions of the court.

2. Issue writs and processes of the court.

3. Enter, under the direction of the court, all orders, judgments and decrees required to be entered, the title of each action, the date of filing it in the supreme court, and a memorandum of all subsequent proceedings, with the date and the fees charged.

4. Keep such other records and perform such other duties as required by law or the court.

B. The record of the proceedings of the court shall be read, corrected and signed by the chief justice.

C. The clerk shall furnish a certified copy of any record or proceeding of the court on receiving the fee therefor, except no fee shall be required from state or other public officers whose duties require such certified copy.

§ 12-202.01 Preservation and destruction of records

A. The clerk of the supreme court may destroy or provide for the destruction of all documents, records, instruments, books, papers, depositions, exhibits and transcripts in any action or proceeding in the supreme court, or otherwise filed or deposited in the clerk's custody pursuant to rules adopted by the supreme court.

B. A photographic or electronic reproduction or image of any of the records described in this section, which has been certified by the person in charge of such reproduction as being an exact replica of the original, shall be received in evidence in all courts, and in hearings before any officer, board or commission having jurisdiction or authority to conduct such hearings, in like manner as the original.

C. The clerk shall notify the director of the Arizona state library, archives and public records of records designated for destruction pursuant to court rules. The state library, during the time prescribed by court rule, may review and inspect these records. During this time period, the state library may remove any of these records for storage and retrieval.

§ 12-203 Salary of clerk and deputy; administrative director

The clerk of the supreme court, the deputy clerk and the administrative director of the supreme court shall receive compensation as determined pursuant to section 38-611.

Article 2 Court Commissioner

§ 12-211 Appointment; qualifications and residence

A. Each judge of the superior court may appoint a court commissioner.

B. To be eligible to serve as a court commissioner a person shall be a United States citizen and a resident of the county in which appointed. He shall reside at the county seat or at such other city or town within the jurisdiction of the judge making the appointment as may be designated by the judge.

§ 12-212 Powers; compensation

A. The court commissioner may:

1. In the absence or inability to act of the judge appointing him, hear and determine ex parte motions for orders and writs, except orders for injunctions.

2. Take proof and report his conclusions upon any matter of fact, other than an issue of fact raised by the pleadings, on which information is required by the court. Either party may object to the report within five days after receiving written notice that it has been filed.

3. Take and approve bonds and undertakings in actions or proceedings in the court and examine the sureties thereon.

4. Administer oaths and take affidavits and depositions in any action or proceeding whatever.

5. Take acknowledgments and proof of deeds and other instruments requiring proof or acknowledgment under the laws of the state.

6. Charge and collect the same fees for performance of official acts as notaries public for like services.

7. Adopt an official seal upon which is engraved the words "court commissioner,...... (insert name of county) county, Arizona" and authenticate official acts with his seal.

8. Enter judgments pursuant to section 23-737.01.

B. When the court commissioner performs services in place of the judge of the superior court he shall be paid such amount as the court determines to be reasonable, considering the services performed. The state and county shall each pay one-half of the amount.

§ 12-213 Commissioners in certain counties; appointment; powers and duties; salary

A. In counties having three or more superior court judges, the presiding judge may appoint court commissioners to serve at his pleasure who shall have such powers and duties as shall be provided by statute or by rule of the supreme court, save and except such commissioners are expressly prohibited, except in default hearings, from making any ex parte orders which would deprive any person or persons from custody of their child or children, or change of counsel of attorneys, or deprive any person of the person's liberty, or deprive any person or entity from the person's or entity's property or the use thereof, or any injunctive relief.

B. Commissioners appointed under subsection A shall receive an annual salary set by the presiding judge which may not exceed ninety per cent of the salary of a judge of the superior court. The commissioner's salary shall be a county charge. An appointed commissioner shall be admitted to the practice of law in and a resident of this state for five years next preceding taking office.

Article 3 Court Reporter

§ 12-221 Appointment and oath

Each judge of the superior court shall appoint a court reporter. Before entering upon his duties, the court reporter shall take and subscribe the official oath to be administered by the judge of the court.

§ 12-223 Attendance at and report of proceedings; sale of transcripts

A. The court reporter shall attend court during the hearing of all matters before it unless excused by the judge. He shall make stenographic notes of all oral proceedings before the court, but unless requested by court or counsel, he need not make stenographic notes of arguments of counsel to a jury, nor of argument of counsel to the court in the absence of a jury.

B. Upon payment or tender of the fees therefor, he shall furnish to any person a typewritten transcript of all or any part of the proceedings reported by him, and upon request, certify that such transcript is a correct and complete statement of such proceedings.

§ 12-224 Salary; fees for transcripts; free transcripts; office supplies

A. The salary of the court reporter shall be fixed by the presiding judge of the court, with the approval of the board of supervisors of the county, and shall be paid by the county.

B. The reporter shall receive from a party ordering an appeal transcript, two dollars fifty cents per page for the original, and thirty cents per page for each copy if ordered at the same time and by the same party.

C. The reporter, when requested in advance, shall furnish free of charge to the county attorney or the attorney general a copy of the transcript of testimony when a transcript is made on an appeal in a criminal case, and to the attorney general when the state is a party.

D. The reporter, when requested, shall furnish at county expense to the county attorney or the attorney general a copy of the transcript of testimony of any proceeding held in the superior court when the state or an instrumentality thereof is ordered to provide such transcripts by a federal court in a habeas corpus proceeding in the federal courts or when ordered by the Arizona supreme court to provide such transcripts in a habeas corpus proceeding in state court.

E. The necessary supplies for conduct of the office of reporter shall be furnished by the county.

§ 12-225 Appointment of deputies; compensation

A. The court reporter may employ deputies who shall be compensated by him.

B. When the reporter is prevented from performing his duties because of absence on public business, or when more than one judge is holding court at the same time in the county or any division thereof, the reporter may appoint a deputy to perform the services of reporter during the period and at the compensation the judge provides by order. Such compensation shall be a county charge.

Article 4 Bailiff

§ 12-231 Appointment and duties

Each judge of the superior court may appoint such bailiffs as necessary to insure orderly transaction of the business of the court. The appointing judge shall prescribe the duties of the bailiff.

Article 5 Interpreter

§ 12-241 Appointment; court attendance

The court may when necessary appoint interpreters, who may be summoned in the same manner as witnesses, and shall be subject to the same penalties for disobedience.

§ 12-242 Interpreters for deaf persons; proceedings; definitions

A. The court shall in any civil or criminal case or grand jury proceeding in which a deaf person is party to such action, either as a witness, complainant, defendant or attorney, appoint a qualified interpreter to interpret the proceedings to the deaf person, to interpret the deaf person's testimony or statements and to interpret preparations with the deaf person's attorney.

B. A department, board, commission, agency or licensing authority of this state or a political subdivision of this state shall, in any proceeding before such department, board, commission, agency or licensing authority in which a deaf person is a principal party of interest or witness, appoint a qualified interpreter to interpret the proceedings to the deaf person and to interpret the deaf person's testimony or statements.

C. If a person known or ascertained to be deaf is arrested and taken into custody for any alleged violation of a criminal law of this state, the arresting officer, the officer's superiors or the court shall procure a qualified interpreter in order to properly interpret any of the following:

1. Warnings of the person's constitutional privilege against self-incrimination as it relates to custodial interrogation.

2. Interrogation of the deaf person.

3. The deaf person's statements.

D. If a juvenile whose parent or parents are deaf is brought before a court for any reason, the court shall appoint a qualified interpreter to interpret the proceedings and testimony for the deaf parent or parents and to interpret any statements or testimony the deaf parent or parents may be called upon to give to the court.

E. If a communication made by a deaf person through an interpreter is privileged, the privilege extends also to the interpreter.

F. If the interpreter or the deaf person determines that effective communication is not occurring the court or appointing authority shall permit the interpreter or the deaf person to nominate a qualified intermediary interpreter to provide interpreting services between the deaf person and the appointed interpreter during proceedings.

G. A deaf person entitled to the services of an interpreter under this section may knowingly and intelligently waive these services. A deaf person who has waived an interpreter under this subsection may provide an interpreter at the deaf person's own expense.

H. As used in this section:

1. "Deaf person" means a person whose hearing impairment is so significant that the individual is impaired in processing linguistic information through hearing.

2. "Qualified interpreter" means a person who has a valid license of competency authorized by the commission for the deaf and the hard of hearing.

Article 6 Adult Probation Officer

§ 12-251 Adult probation officers and support staff; appointment; qualifications

A. The presiding judge of the superior court in each county shall appoint a chief adult probation officer who shall serve at the pleasure of the presiding judge. Such chief adult probation officer, with the approval of the presiding judge of the superior court, shall appoint such deputy adult probation officers and support staff as are necessary to provide presentence investigations and supervision services to the court. Presentence investigations and probation services may be provided to the justice courts in each county for persons who are convicted of violating section 28-1381 or 28-1382 or title 13, chapter 14, 35.1 or 36 and who are placed on supervised probation by the court. Presentence investigations and supervised probation services may be provided by a county probation office to a municipal court through an intergovernmental agreement entered into by the respective county and municipality. On approval of the presiding judge and in accordance with policies and procedures developed by the supreme court, the presiding judge of the superior court may direct that presentence investigations and supervised probation services be provided for other persons if a risk of violence exists or if it would be in the best interest of justice. Those deputy adult probation officers engaged in case supervision shall supervise no more than an average of sixty-five adults who reside in the county on probation to the court. Such deputy adult probation officers shall hold office under rules and procedures established by the supreme court.

B. Each adult probation officer appointed pursuant to subsection A of this section shall give bond in the principal amount to be fixed by the court and approved by the judge making the appointment, conditioned upon the faithful performance by such officer of the officer's official duties and the payment of all monies coming into the officer's possession as such officer to the person, officer or body entitled to receive the monies. Any adult probation officer covered by a blanket faithful performance bond payable to the county or covered by state risk management shall be deemed to be in compliance with this section.

C. Probation department personnel shall qualify under minimum standards of experience and education established by the supreme court. Such standards may differ for counties of less than three hundred thousand persons from counties with three hundred thousand persons or more. Notwithstanding section 12-265, any additional salary costs that might be required as a result of the adoption of minimum salary standards by the supreme court may be paid by funds made available to the probation department pursuant to sections 12-267 and 12-268 or by the supreme court.

D. Presently appointed adult probation officers who qualify under subsection C of this section shall be retained in their position as long as they are qualified.

§ 12-252 Salaries and expenses

A. The salary ranges of the adult probation department personnel shall be fixed by the board of supervisors on recommendation of the presiding judge of the superior court. Adult probation department personnel shall be hired pursuant to the rules and procedures approved by the supreme court.

B. The expenses and allowances of the adult probation officers incurred in performance of their duty or in the execution of the orders of the court shall, when approved by the presiding judge of the superior court, be paid in the amounts provided in sections 38-623 and 38-624 in accordance with the approved expenditure plan pursuant to section 12-267, subsection B.

§ 12-253 Powers and duties

The adult probation officer shall:

1. Make and file a complete record of persons placed under suspended sentence by the court, and of all reports made to the officer in writing or in person, in accordance with the conditions imposed by the court.

2. Exercise general supervision and observation over persons under suspended sentence and supervision pursuant to section 13-3994, subject to control and direction by the court.

3. Serve warrants, make arrests and bring persons before the court who are under suspended sentences. The officer has the authority of a peace officer in the performance of the officer's duties.

4. Investigate cases referred to the officer for investigation by the court in which the officer is serving and report to the court. In an investigation for a presentence report, the adult probation officer shall promptly inquire into the circumstances of the offense, the convicted person's history of delinquency or criminality, social history, employment history, family situation, economic status, including the ability to contribute to reimbursement for the costs of the person's legal defense pursuant to section 11-584, education and personal habits. The presentence report shall contain a recommendation by the officer regarding contribution by the convicted person toward the costs of legal defense pursuant to section 11-584. The officer shall also promptly inquire into the physical, emotional and financial impact of the offense on the victim and the emotional and financial impact of the offense on the immediate family of the victim and shall notify the victim or the immediate family of the victim of the right to appear personally or by counsel at any aggravation or mitigation proceeding.

5. Secure and keep a complete identification record of every person released under a suspended sentence and a written statement of the conditions of the suspension.

6. Obtain and assemble information concerning the conduct of persons placed under suspended sentence and report the information to the court.

7. Bring defaulting probationers into court when in the probation officer's judgment the conduct of the probationer justifies the court to revoke suspension of the sentence.

8. Monitor the payment of restitution.

§ 12-254 Chief adult probation officer; duties; other officers' duties

A. In each county having a chief adult probation officer, such officer, with the approval of the presiding judge, shall:

1. Establish organizational and operational procedures for the deputy adult probation officers of the county.

2. Direct the work and activities of the deputy adult probation officers of the county.

3. Supply such information as may be requested by the state department of corrections pursuant to section 41-1604, subsection A, paragraph 6.

4. Perform other duties assigned by the presiding judge, which duties may include serving as a juvenile probation officer, if such officer meets the minimum qualification prescribed by section 8-203, subsection C.

B. In a county having no chief probation officer the adult probation officer shall supply the information required by subsection A, paragraph 3 of this section.

§ 12-255 Private enterprise probation services

Nothing in this article prevents a presiding judge of the superior court in a county from entering into agreements with private enterprises to provide supervision and counseling services for persons placed on probation in the county.

§ 12-256 Probation officers; enforcement of pretrial release conditions

An adult probation officer may serve warrants, make arrests and bring persons who are subject to the supervision of pretrial services and who are alleged to have violated a condition of pretrial release before the court. A probation officer enforcing pretrial release conditions has the authority of a peace officer in the performance of the officer's duties.

Article 6.1 Adult Surveillance Officers

§ 12-259 Adult surveillance officers; appointment; qualifications; salaries; expenses

A. Adult surveillance officers shall be appointed and shall qualify pursuant to section 12-251.

B. Adult surveillance officers shall be hired, salary ranges shall be fixed and expenses and allowances shall be paid pursuant to section 12-252.

§ 12-259.01 Powers and duties

An adult surveillance officer shall:

1. Have the authority of a peace officer in the performance of the officer's duties.

2. Under the direction of the chief probation officer:

(a) Exercise supervision and observation over persons who are sentenced to probation, including:

(i) Visual contact with each probationer.

(ii) Contact with the probationer's employer and family.

(b) Report to the court if the probationer engages in conduct constituting an offense.

(c) Monitor the payment of restitution and probation fees and bring before the court any probationer who fails to pay restitution or fees.

(d) Serve warrants, make arrests and bring before the court persons who are under suspended sentence or who have violated the terms of probation.

3. Obtain and assemble information concerning the conduct of persons who are sentenced to probation, including weekly arrest records, and report the information to the court.

4. Bring a defaulting probationer into court if, in the judgment of the adult probation officer, the probationer's conduct justifies revoking probation.

5. Secure and keep a complete identification record of each supervised person and a written statement of the conditions of the person's probation.

6. Perform any other responsibilities that are required by the terms and conditions imposed by the court.

Article 7 State Aid for Probation Services

§ 12-261 Administration

The state supreme court shall carry out the provisions of this article.

§ 12-262 Submission of plan; use of funds; report

A. The presiding judge of the superior court in each county desiring to improve, maintain or expand juvenile probation services, or to achieve or maintain the average adult probation case supervision requirement prescribed in section 12-251, may prepare a plan in accordance with guidelines issued by the supreme court. The plan shall be submitted to the state supreme court. The supreme court guidelines shall require that the plan include:

1. That funds received under this article shall be used primarily for payment of salaries of probation officers supervising adults or juveniles on probation to the superior, justice or municipal court.

2. That the funds provided by the state for this purpose will be used to supplement county funds provided for probation services.

3. The proposed budget necessary to implement the plan, including the amount currently budgeted for that county's probation program.

B. If a county is subject to section 12-269, the following apply:

1. Beginning in fiscal year 2006-2007, the county's contribution to the hospitalization and medical care of the indigent sick, to the nonfederal portion of providing long-term care and for the administrative costs of implementing sections 36-2901.01 and 36-2901.04 shall be reduced pursuant to section 11-292, subsection Q.

2. The economic estimates commission shall increase the county's base expenditure limit beginning in the fiscal year that the county assumes funding responsibility pursuant to section 41-563, subsection D.

C. The supreme court shall report to the joint legislative budget committee all amounts provided to any county pursuant to this article for adult probation services or juvenile probation services.

§ 12-263 Approval and revocation of plans

The supreme court shall have the authority to reject any plan submitted pursuant to section 12-262. Upon approval of a plan submitted, the supreme court shall enter into a funding agreement with the county and shall make payments to the county as necessary to carry out the agreement.

§ 12-264 Continued allocation of funds

By May 31 and December 31 of each year, each presiding judge of the superior court operating a program under this article shall submit to the supreme court an evaluation report describing the program and its accomplishments. If, in the judgment of the court, the program is successful or has shown reasonable promise of being successful, the court may continue such funding. If the program has not shown reasonable success as agreed to in the funding agreement, the court shall require submission of a new plan or modification of the existing plan as a condition of continued funding.

§ 12-265 Allocation of funds; prohibition

A. Any county operating a program under this article shall receive a base amount of twenty thousand dollars from the funds appropriated annually for the purpose of carrying out this article. The remainder of any appropriated funds, excluding funds appropriated for administration, shall be made available to each participating county based upon the supreme court's determination of the need for and probable effectiveness of each plan submitted pursuant to this article. The supreme court shall allocate such funds available according to this section.

B. Funds apportioned to each county shall be distributed within the county between the adult and juvenile probation departments in proportion to the adult and juvenile populations of that county based on the most recently available census figures from the department of economic security or may be distributed on any other basis approved by both the juvenile and adult probation departments of such counties and by the supreme court.

C. State funds awarded to any county under this article must be utilized to improve, maintain or expand existing juvenile probation programs or to achieve or maintain the average adult probation case supervision requirement prescribed in section 12-251. No state funds may be used to increase any salaries funded under current county probation programs.

§ 12-266 Administrative personnel

The supreme court may employ such personnel as it deems necessary to carry out the duties of this article.

§ 12-267 Adult probation services fund; accounts; expenditure plan; use

A. The board of supervisors shall designate a chief fiscal officer who shall establish and administer an adult probation services fund consisting of:

1. County general fund appropriations for adult probation.

2. State appropriations for adult probation including:

(a) Monies for adult probation officers authorized by article 6 of this chapter.

(b) Monies for state aid for adult probation services authorized by this article.

(c) Monies for adult community punishment programs established pursuant to article 11 of this chapter.

(d) Monies for adult intensive probation pursuant to title 13, chapter 9.

3. Probation fees collected pursuant to section 13-901 and section 13-902, subsection G.

4. Federal monies provided for adult probation.

5. Adult probation monies from any other source.

B. The chief fiscal officer shall establish and maintain separate accounts in the fund showing receipts and expenditures of monies from each source listed in subsection A of this section. The presiding judge of the superior court shall annually present to the board of supervisors for approval a detailed expenditure plan for the adult probation services fund accounts. Any modifications to the expenditure plan affecting state appropriations shall be made in accordance with the rules and procedures established by the supreme court. Any modifications to the expenditure plan affecting county appropriated funds shall be made in accordance with the policies established by the county. The chief fiscal officer shall disburse monies from the fund accounts only at the direction of the presiding judge of the superior court. The chief fiscal officer of each county, on or before August 31 of each year for the preceding fiscal year, shall submit an annual report to the supreme court showing the total amount of receipts and expenditures in each account of the adult probation services fund.

C. The state monies in the adult probation services fund, and probation fees collected pursuant to section 13-901 and section 13-902, subsection G, shall be used in accordance with guidelines established by the supreme court or the granting authority.

D. State monies expended from the adult probation services fund shall be used to supplement, not supplant, county appropriations for the superior court adult probation department.

E. Monies in the adult probation services fund shall be used to pay the annual assessment on member states of the interstate compact for the supervision of adult offenders established in section 31-467, article X, subsection B.

F. County monies in the adult probation services fund shall be used in accordance with the fiscal policies and procedures established by the board of supervisors.

G. The administrative office of the courts shall periodically charge each local probation fees account an amount established annually by the supreme court to cover a proportional share of the cost of monitoring devices required pursuant to section 13-902, subsection G consistent with guidelines established to implement section 13-902, subsection G.

H. The administrative office of the courts shall charge annually the local probation fees account of each county an amount that is established annually by the administrative office of the courts to reflect each county's portion of the superior court risk management premium that is allocated to the judiciary.

§ 12-268 Juvenile probation fund; annual report; use

A. The board of supervisors shall designate a chief fiscal officer who shall establish and administer a juvenile probation fund consisting of:

1. County general fund appropriations for juvenile probation.

2. Court information cost monies received pursuant to section 8-134, subsection L.

3. State appropriations for juvenile probation, except monies in the juvenile probation services fund established by section 8-322 and except monies in the court appointed special advocate and vulnerable persons fund established by section 8-524, but including:

(a) Monies for juvenile probation officers authorized by section 8-203.

(b) Monies for state aid for juvenile probation services authorized by this article.

(c) Monies for family counseling services established by title 8, chapter 2, article 5.

(d) Monies for juvenile intensive probation services established by title 8, chapter 3, article 4.

4. Federal monies provided for juvenile probation services.

5. Juvenile probation monies from any other source.

B. The chief fiscal officer shall establish and maintain separate accounts in the fund showing receipts and expenditures of monies from each source listed in subsection A of this section. The presiding juvenile judge of the superior court shall annually present to the board of supervisors for approval a detailed expenditure plan for the juvenile probation services fund accounts. Any modifications to the expenditure plan affecting state appropriations shall be made in accordance with the rules and procedures established by the supreme court. Any modifications to the expenditure plan affecting county appropriated funds shall be made in accordance with the policies established by the county. The chief fiscal officer shall disburse monies from the fund accounts only at the direction of the presiding juvenile judge of the superior court. The chief fiscal officer, on or before August 31 of each year for the preceding fiscal year, shall submit an annual report to the supreme court showing the total amount of receipts and expenditures in each account of the juvenile probation services fund.

C. The state monies in the juvenile probation services fund shall be used in accordance with guidelines established by the supreme court or the granting authority.

D. State monies expended from the juvenile probation services fund shall be used to supplement, not supplant, county appropriations for the superior court juvenile probation department.

E. County monies in the juvenile probation services fund shall be used in accordance with the fiscal policies and procedures established by the board of supervisors.

§ 12-269 Probation funding; counties with a population of two million or more persons; assessment; support

A. The administrative office of the courts shall not disburse any direct state aid for probation services monies, including motor pool costs, that are appropriated for juvenile intensive probation services pursuant to section 8-353, state aid for probation services pursuant to section 12-262, adult intensive probation pursuant to title 13, chapter 9 and community punishment programs pursuant to article 11 of this chapter to a county with a population of two million or more persons.

B. A county with a population of two million or more persons shall maintain probation standards that are otherwise prescribed by law, except that the probation ratios and team compositions that are listed in sections 8-203, 8-353, 12-251 and 13-916 do not apply. The county shall maintain appropriate ratios of officers to probationers consistent with evidence based practices in differentiated case management and shall annually report its performance to the chief justice of the Arizona supreme court, the speaker of the house of representatives and the president of the senate on or before October 1 of each year. The annual report shall include, for each probation program, the rate of successful completion of probation, the rate of new felony convictions and the rate of commitment to the state department of corrections or the department of juvenile corrections.

C. In lieu of the assessment prescribed in section 12-114.01 and in addition to any other penalty, fine, fee surcharge or assessment authorized by law, a person shall pay a probation assessment in an amount determined by a county with a population of two million or more persons on every conviction for a criminal offense or a finding of responsibility for a civil traffic violation, for a violation of any local ordinance relating to the stopping, standing or operation of a vehicle, except parking violations, or for a violation of the game and fish statutes in title 17.

D. The monies collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the adult probation services fund established by section 12-267 or in the juvenile probation fund established by section 12-268 in such proportion as determined by the board of supervisors.

E. For the purposes of sections 12-267 and 12-268, in a county with a population of two million or more persons, probation fees under section 13-901 and probation assessments under this section are not state appropriations.

F. Notwithstanding any other provision of this section, the administrative office of the courts shall provide centralized support services to all counties from monies that are provided for probation programs.

§ 12-270 Probation success incentive payments and grants; baseline calculations; annual reports; definitions

A. The administrative office of the courts, in consultation with each county's adult probation department, shall calculate a county probation success incentive payment for each county for the most recently completed fiscal year. Each county's probation success incentive payment equals the number of probationers successfully prevented from entering prison, compared to the county-specific historical baselines calculated in subsection G, paragraph 1 of this section multiplied by fifty percent of the marginal cost of incarceration as required by subsection F of this section. The administrative office of the courts shall calculate a statewide probation success incentive grant payment that equals the number of probationers successfully prevented from entering prison statewide, compared to the statewide historical baseline calculated in subsection G, paragraph 1 of this section multiplied by twenty-five percent of the marginal cost of incarceration as required by subsection F of this section. Subject to legislative appropriation, the administrative office of the courts shall proportionately allocate the county probation success incentive payments to each county based on the specific calculations made pursuant to subsection G of this section. Subject to legislative appropriation, the administrative office of the courts shall deposit the statewide probation success incentive grant payment in a subaccount established by the administrative office of the courts for the purpose of recidivism reduction and improving probation services.

B. Each county shall use its probation success incentive payment and any monies received from a statewide probation success incentive grant to improve supervision and rehabilitative services for probationers, including any of the following:

1. Implementing and expanding evidence-based practices for risk and needs assessments for individualized programming.

2. Implementing and expanding intermediate sanctions, including mandatory community restitution, home detention, day reporting, restorative justice programs and work furlough programs.

3. Expanding the availability of evidence-based practices for rehabilitation programs, including drug and alcohol treatment, mental health treatment, anger management, cognitive behavior programs and job training and employment services.

4. Recognizing and rewarding probation officers in adult probation departments whose work has advanced the implementation of evidence-based practices or who have contributed to the probation department's recidivism reduction efforts.

5. Paying for continuing education and training that focuses on evidence-based practices for probation officers or probation staff, or both.

6. Evaluating the effectiveness of rehabilitation and supervision programs and ensuring program fidelity.

C. The administrative office of the courts shall allocate county probation success incentive payments to each county for distribution to the county's adult probation department to implement the programs prescribed in subsection B of this section. A board that includes the chief probation officer from each county shall determine the distribution of statewide probation success incentive grant monies. A county's chief probation officer must be recused in a vote that may award a grant to the chief probation officer's probation department. The county and statewide probation success incentive payments allocated pursuant to this section shall be used to supplement, not supplant, any other state or county appropriation for the adult probation department.

D. For any county or statewide probation success incentive payments allocated or grants awarded to a county, the county shall distribute the allocated monies to its adult probation department, which must use the monies for improving probation services and recidivism reduction funding activities prescribed in subsection B of this section. In the county's discretion, the county may retain up to fifteen percent of the allocated monies for administrative and data collection purposes.

E. In any fiscal year in which a county receives incentive payments or grants, the monies shall be made available to the county's adult probation department to implement probation programming within sixty days after the allocation of those monies. The county adult probation department shall maintain a complete and accurate accounting of all monies received pursuant to this section.

F. At the end of each fiscal year, the director of the state department of corrections shall calculate the marginal cost of incarceration for that fiscal year and provide that information to the administrative office of the courts. The calculation shall take into consideration factors such as the average length of stay in prison and variable corrections costs, including health care services, food and clothing.

G. At the end of each fiscal year, the administrative office of the courts shall gather data on, calculate and report the following for each fiscal year:

1. The probation failure rate for this state and each county. To make this calculation, the baseline probation failure rate equals the average number of adult probationers who failed to successfully complete a term of probation during fiscal years 2007-2008, 2014-2015 and 2018-2019, as a percentage of the average number of probationers who successfully completed a term of probation during that same time period. When calculating probation failure, if a person on probation spends fewer than fourteen days in detention, that person's detention is not a probation failure. For the purposes of calculating the probation failure rate and the baseline probation failure rate, the number of adult probationers who failed to successfully complete a term of probation includes the following:

(a) A probationer whose probation was revoked for a new crime or technical violation.

(b) A probationer whose whereabouts are unknown and for whom an arrest warrant was issued during the fiscal year.

(c) A probationer whose probation is terminated on serving a sentence in a county jail in lieu of probation revocation for a new crime or technical violation.

2. An estimate of the number of adult probationers this state and each county successfully prevented from failing probation. This estimate is calculated based on the reduction in the probation failure rate as calculated annually pursuant to the baseline probation failure rate calculated pursuant to paragraph 1 of this subsection. In making this estimate, the administrative office of the courts, in consultation with the adult probation department, shall adjust the calculations to account for changes in the adult probation caseload in the most recent completed fiscal year as compared to the adult probation population during fiscal years 2007-2008, 2014-2015 and 2018-2019.

3. The current total population of probationers for the last three years per county as of the date of the required report.

H. If data of sufficient quality and of the types required by this section are not available, the administrative office of the courts shall use the best available data to estimate probation success rates using a methodology that is as consistent with that described in this section as is reasonably possible.

I. The administrative office of the courts shall include an estimate of the total monies to be held and administered in the following fiscal year as part of the judiciary's proposed budget.

J. Each county board of supervisors shall periodically provide oversight regarding the allocation of incentive payment grants to the specific departments that are tasked with administering the probation programming to ensure that disbursed monies are appropriately used as specified in subsection B of this section.

K. Each adult probation department shall define and track specific outcome-based measures, including all of the following:

1. The percentage of probationers who are supervised in accordance with evidence-based practices.

2. The specific supervision policies, procedures, programs and practices that were eliminated.

3. The percentage of probationers who successfully complete the period of supervision.

4. The number of probation absconders who are located each year and the disposition of these cases.

5. The amount of monies received by each adult probation department.

L. On or before December 31, 2022 and annually thereafter, each adult probation department that receives incentive payments or grants pursuant to this section shall submit a written report to the administrative office of the courts and the county board of supervisors that accounts for incentive payments received and grants awarded and that evaluates the effectiveness of the program.

M. On or before July 1, 2023 and annually thereafter, the administrative office of the courts shall submit to the governor, the speaker of the house of representatives, the president of the senate and the joint legislative budget committee a comprehensive report on the implementation of this section. The report must include all of the following information:

1. The effectiveness of programs based on the reports of performance-based outcome measures required in subsection K of this section.

2. The percentage of adult probationers whose supervision was revoked for the year that the report is being made.

3. The percentage of probationers who were convicted of criminal offenses during the probationer's term of supervision for the year that the report is being made.

4. The impact of the incentive payments allocated pursuant to this section to enhance public safety by:

(a) Reducing the percentage and the number of probationers whose supervision was revoked for the year the report is being made for violations or new convictions.

(b) Reducing the number of probationers who return to prison or jail or who abscond from probation for the year that the report is being made.

5. Any recommendations regarding resource allocations or additional collaboration with other state, regional, federal or local entities for improvements made pursuant to this section.

6. The number of probationers whose supervision was revoked solely for a violation of the terms of probation and the number of probationers whose supervision was revoked because of the commission of a new offense.

N. For the purposes of this section:

1. "Baseline probation failure rate" means the average of the probation failure rates for fiscal years 2007-2008, 2014-2015 and 2018-2019. Each fiscal year's failure rate is the quotient of the number of persons on probation who failed to successfully complete the person's term of probation that is divided by the total number of persons on probation and that is calculated on a statewide basis and for each county.

2. "Evidence-based practices" means supervision policies, procedures, programs and practices demonstrated by scientific research to reduce recidivism among persons on probation.

3. "Marginal cost of incarceration" means the sum of all short-term variable costs associated with incarcerating a person in a state department of corrections facility and includes only those correctional costs that marginally change in proportion to the inmate population of a facility.

4. "Probation programming" means all programs established pursuant to title 13, chapter 9 and consists of a system of probation supervision services dedicated to all of the following goals:

(a) Enhancing public safety through managing and reducing offender risk while a probationer is under supervision and on reentry from prison into the community.

(b) Providing a range of supervision tools, sanctions and services that are applied to probationers based on a risk or needs assessment, or both, to reduce criminal conduct and promote individualized behavioral change that results in reducing recidivism and promoting successful reintegration into the community.

(c) Maximizing offender restitution, reconciliation and restorative services to crime victims, when applicable.

(d) Holding probationers accountable for successful compliance with applicable court orders and conditions of probation.

(e) Improving public safety outcomes for a person who is placed on probation after an offense, as measured by the person's successful completion of probation and commensurate reduction in the rate of probationers returning to prison as a result of a revocation or conviction of a new offense.

Article 8 Clerk of Superior Court

§ 12-281 Oath; bond; salary; annual increase; prohibition

A. The clerk of the superior court shall take the oath of office and give a bond in the sum of $5,000 conditioned on the faithful performance of the duties of that office and the payment of all monies to the person entitled to receive them. The bond is subject to approval by the presiding superior court judge.

B. Beginning January 1, 2023, in counties with a population of five hundred thousand or more persons, the annual salary of the clerk of the superior court is $96,600 until modified.

C. Beginning January 1, 2023, in counties with a population of less than five hundred thousand persons, the annual salary of the clerk of the superior court is $83,800 until modified.

D. The annual salary of the clerk of the superior court that is established by subsections B and C of this section shall be reviewed by the commission on salaries for elective state officers pursuant to section 41-1903.

E. The clerk of the superior court and the clerk's deputies are prohibited from practicing law or forming a partnership with an attorney-at-law. This subsection does not prohibit the clerk or the clerk's employees from providing to the public, including litigants, information regarding documents routinely filed with the clerk.

§ 12-282 Custody of records filed; purging; destruction; microphotography; electronic imaging; evidence; withdrawal of voucher; exemption; child support information

A. The clerk shall keep custody in the clerk's county, and shall take charge of and safely keep and dispose of according to court rules all records which may be filed or deposited in custody.

B. The clerk may destroy all documents, records, instruments, books, papers, depositions, exhibits and transcripts in any action or proceeding in the superior court, or otherwise filed or deposited in custody pursuant to rules established by the supreme court.

C. The clerk shall notify the director of the Arizona state library, archives and public records of records designated for destruction and shall provide these records to the director pursuant to court rules.

D. A photographic or electronic reproduction or image of any of the records described in this section, which has been certified by the clerk in charge of such reproduction or imaging as being an exact replica of the original, shall be received in evidence in all courts, and in hearings before any officer, board or commission having jurisdiction or authority to conduct such hearings, in like manner as the original. A state or local agency shall accept any of the records under this subsection as a registration of a record or a procedure if the agency receives the record from the clerk of the superior court through electronic transmission and the electronically reproduced document states that the copy received is a full, true and correct copy of the original on file with the clerk of the court.

E. Any voucher filed in support of an account by a trustee, a personal representative or any litigant may be withdrawn if a certified copy is retained on file. Pursuant to court rules the clerk may destroy the voucher or, if requested to do so, may deliver the voucher to the trustee, personal representative or litigant. No notification is necessary prior to destruction of such vouchers.

F. Records destroyed pursuant to section 8-349 are exempt from this section.

G. The clerk shall provide information on both parents and each child in a child support case to the child support case registry established pursuant to section 46-442. The information shall be in a format prescribed by the department of economic security and shall include the following:

1. The full name of each parent and child.

2. The social security number or any other uniform identification numbers of each parent and child.

3. The date of birth of each parent and child.

4. Any case identification number.

5. Any other information required by the United States secretary of health and human services.

H. The clerk shall provide the information required in subsection G of this section for child support cases with a support order established, modified or registered in this state on or after October 1, 1998. The clerk shall provide the information to the child support case registry established pursuant to section 46-442 within ten days after the order is entered or the information is updated. The information shall be provided by electronic, magnetic or other means as prescribed by the department of economic security.

§ 12-283 Powers and duties

A. The clerk, in addition to the other duties prescribed by law or rule of court, shall:

1. Attend each session of the court held in the county.

2. Keep a list of fees charged in actions.

3. Keep records required by law or rule of court.

4. On or before January 15 of each year, compile a report on the number of civil actions that are filed in the superior court pursuant to section 12-514 and the age of the plaintiff in each case. The clerk shall submit the report to the governor and the legislature and provide a copy of this report to the secretary of state.

B. The clerk may provide a consumer reporting agency as defined in section 44-1691 with a copy of:

1. A court order obligating a person to pay child support or spousal maintenance.

2. An order for assignment under section 25-323 or 25-504.

C. A clerk who provides the information in subsection B of this section to a consumer reporting agency shall also provide the information to the child support enforcement administration in the department of economic security.

D. The clerk, in accordance with procedures established by the board of supervisors, may appoint deputies, clerks and assistants necessary to conduct the affairs of the office of the clerk. The appointments shall be in writing. The clerk shall be the appointing authority and shall administer and supervise all employees of the clerk's office.

E. The clerk shall submit an annual budget request, which shall be coordinated with the presiding judge, to the county board of supervisors. The clerk shall be responsible for the funds appropriated by the board to the clerk.

F. The clerk shall maintain and provide access to court records in accordance with applicable law or rule of court. The clerk shall keep a docket in the form and style as prescribed by the supreme court.

G. The clerk is responsible for the operations of the clerk's office.

H. The clerk may provide programs to assist in the enforcement of child support, spousal maintenance and parenting time and in the establishment and modification of child support.

I. The clerk shall compile and publish electronically all superior court criminal case minute entries, except as otherwise prohibited by law. At a minimum, the information shall be arranged or searchable by the case name, the case number and the name of the judge or commissioner.

§ 12-284 Fees

A. Except as otherwise provided by law, the clerk of the superior court shall receive fees classified as follows:

Class Description Fee

A Initial case filing fee

Tax case $ 188.00

Filing complaint, notice of appeal

under section 12-904 or petition 188.00

Filing intervenor 188.00

Additional plaintiffs 188.00

Filing foreign judgment 188.00

Ownership of real property becomes an

issue plaintiff 188.00

Appellant

(except under sections 12-1809 and 13-3602) 188.00

Change of venue to this county 188.00

Petition for change of name 188.00

Filing a process server application 188.00

B Subsequent case filing fee

Filing answer, notice of appearance

under section 12-907 or initial appearance $ 100.00

Additional defendants 100.00

Notice of appeal to appellate courts

(except under section 12-2107) 100.00

Cross-appeal by appellee (except under section

12-2107) 100.00

Ownership of real property becomes an

issue defendant 100.00

Jurisdiction exceeded appellee

(within 20 days of filing) 100.00

Response to show cause that does one or more

of the following:

1. Requests affirmative relief or

counterrelief

2. Attacks the sufficiency of process

or the proceedings

3. Takes other affirmative action 100.00

C Initial case filing fee

Filing petition for annulment $ 149.00

Filing for dissolution/legal separation petition 149.00

Petition in formal testacy or appointment

proceeding 149.00

Application for informal probate or informal

appointment 149.00

Petition for supervised administration petition

to appoint guardian 149.00

Petition to appoint conservator or make other

protective order 149.00

Opposing petition in testacy or appointment

proceedings or appointment of guardian or

conservator 149.00

Single estate application or petition under

title 14, chapter 3, section 14-3938 149.00

Domestic relations case for which a fee is not

specifically prescribed 149.00

D Subsequent case filing fee

Filing answer to annulment $ 74.00

Filing for dissolution/legal separation answer 74.00

Any person opposing contested petition if no

prior payment made 74.00

Postadjudication petitions in

domestic relations cases 74.00

Postjudgment activities in probate cases 74.00

E Minimum clerk fee

Filing power of attorney $ 30.00

Change of venue to another county transmittal

fee 30.00

Change of venue to another county pursuant to

section 12-404 transmittal fee 30.00

Filing transcript and docketing judgment from

any courts 30.00

Issuance of writs of: attachment, execution,

possession, restitution, prohibition and

enforcement of order of judgment-garnishment 30.00

Certified copy or abstract of marriage

application or license 30.00

Certificate of correctness of copy of record 30.00

Justice of peace certificate 30.00

Each certificate of clerk to any matter in

clerk's record not specifically provided 30.00

Filing any paper or performing any act for which

a fee is not specifically prescribed 30.00

Subpoena - (civil) 30.00

Research in locating a document (per year or

source researched) 30.00

Exemplification (per certification) 30.00

Authentication (per certification) 30.00

Seal a court file 30.00

Reopen a sealed court file 30.00

Retrieve bank records 30.00

Reel of film alpha index per year (plus per

page fee below) 30.00

Payment history report 30.00

Certification under one document certification 30.00

Civil traffic appeal 30.00

F Per page fee

Making copies (on appeal and on request)

per page $ .50

Making extra copies per page .50

Making photographic or photostatic copies

per page .50

Comparison fee of papers furnished by applicant

per page .50

Alpha index per page .50

G Special fees

Small claim tax case $ 24.00

Marriage license and return of a

marriage license 83.00

Postage and handling 7.00

Notary services 7.00

Stop payment on check 16.00

B. The clerk of the superior court shall receive the fees prescribed in subsection A of this section for the following services:

1. Making copies of papers and records required to be made by the clerk on appeal, and copies of papers and records in the clerk's office made on request in other cases, for each legal size page of original.

2. Making extra copies of the papers and records mentioned in paragraph 1 of this subsection, required or requested for each page of copy of such papers and records.

3. In a clerk's office, in which a photographic or photostatic method of recording is used or is available for use in cooperation with other public offices, preparing copies enumerated in paragraphs 1 and 2 of this subsection for each page of copy or fraction of a page of copy. Portions of several pages of records may be combined in one page of copy. The clerk may prepare an abstract of marriage in lieu of a reproduction of the recorded marriage license. The fee shall apply to matters whether recorded in such office by longhand, typing, electronic, photographic or photostatic methods. The fees for copies are exclusive of the fees for certification or authentication.

4. Issuing a certificate as to official capacity of a justice of the peace and affixing a seal to the certificate.

5. Each subpoena issued in a civil proceeding or filing any paper or performing any act for which a fee is not specifically prescribed by law, but the clerk shall not charge for the clerk's services in administering the oath in connection with any affidavit, petition, letters or other pleading or document that, after administration of the oath, is promptly filed by the clerk and becomes a part of a case or matter of record in the office of the clerk.

C. In addition to the fees required by subsection A of this section, the clerk shall charge and collect a surcharge of fifteen dollars for each filing of a postadjudication petition in a domestic relations case for which a fee presently is charged under class D in subsection A of this section. The surcharge shall be used exclusively to fund domestic relations education and mediation programs established pursuant to section 25-413. Each month the clerk shall transmit the monies the clerk collects pursuant to this subsection to the county treasurer for deposit in the domestic relations education and mediation fund established by section 25-413.

D. Excluding the monies that are collected pursuant to subsection C of this section, each month the clerk shall transmit seventy-five percent of the monies collected for subsequent case filing fees for postadjudication petitions in domestic relations cases under class D in subsection A of this section to the county treasurer for deposit in the expedited child support and parenting time fund established pursuant to section 25-412. The remaining twenty-five percent of the monies collected pursuant to this subsection shall be distributed pursuant to section 12-284.03.

E. At the commencement of each action for annulment, dissolution of marriage, legal separation, maternity or paternity, the petitioner shall pay to the clerk of the court the initial case filing fee for the action provided in subsection A of this section. At the time of filing a response, the respondent shall pay to the clerk of the court the subsequent case filing fee for the action provided in subsection A of this section. In each county where the superior court has established a conciliation court, the petitioner and respondent shall each pay to the clerk a sixty-five dollar fee. The monies from the additional fee shall be used to carry out the purposes of the conciliation court pursuant to title 25, chapter 3, article 7.

F. In garnishment matters:

1. A fee shall not be charged for filing an affidavit seeking only the release of exempt wages.

2. A fee shall not be charged for filing a garnishee's answer, for filing a judgment against the garnishee or for the issuance or return of process incident to such a judgment.

3. For any contest relating to or any controversion of a garnishment matter, unless the contesting party has paid an appearance fee in that cause, the required appearance fee shall be paid, except that the garnishee shall not pay a clerk's fee.

G. A person who is cited to appear and defend an order to show cause shall not be charged an appearance fee. The person may stipulate to or consent to the entry of an order without the payment of an appearance fee. An appearance fee shall be paid if the person is present in person or by an attorney and does one or more of the following:

1. Requests affirmative relief or counterrelief.

2. Attacks the sufficiency of process or the proceedings.

3. Takes other affirmative action.

H. A petitioner shall not be charged a fee for requesting an order of protection pursuant to section 13-3602 or an injunction against harassment pursuant to section 12-1809. A defendant shall not be charged an answer fee in an order of protection action if the defendant requests a hearing pursuant to section 13-3602, subsection L or in an injunction against harassment action if the defendant requests a hearing pursuant to section 12-1809, subsection H.

I. A person who files a registrar's order pursuant to section 32-1166.06 shall not be charged a fee.

J. The clerk of the court shall charge and collect a forty-six dollar filing fee for a petition for emancipation of a minor filed pursuant to chapter 15 of this title. Each month the clerk shall transmit the monies the clerk collects pursuant to this subsection to the county treasurer for deposit in the emancipation administrative costs fund established by section 12-2456.

K. Except for monies that are collected pursuant to subsections C, D, E and J of this section, the clerk of the superior court shall transmit monthly to the county treasurer all monies collected pursuant to this section for distribution or deposit pursuant to section 12-284.03.

L. The supreme court may increase the fees prescribed in subsection A of this section in an amount not to exceed the percent of change in the average consumer price index as published by the United States department of labor, bureau of labor statistics between that figure for the latest calendar year and the calendar year in which the last fee increase occurred.

§ 12-284.01 Document and digital evidence storage and retrieval conversion fund; purposes

A. The document and digital evidence storage and retrieval conversion fund for the clerk of the superior court is established consisting of monies received pursuant to subsection C of this section.

B. The clerk of the superior court shall administer the fund. The clerk, in coordination with the presiding judge, shall expend monies in the fund subject to approval by the county board of supervisors for the following purposes:

1. To defray the cost of maintaining the clerk's document storage and retrieval system and to convert to micrographics or computer automation.

2. To manage and store digital evidence and to facilitate the display of evidence to the jury and court at a trial and related proceedings.

C. In addition to the filing or appearance fee charged pursuant to chapter 3, article 2 of this title or section 12-1705, the presiding judge of the superior court may assess each person required to pay a filing or appearance fee under such article or sections an additional fee of not more than $15. All monies received from the additional fee pursuant to this subsection shall be transmitted to the county treasurer and placed in the document and digital evidence storage and retrieval conversion fund for the clerk of the superior court.

D. The clerk shall annually submit to the presiding judge the amount of projected revenues to be raised for the document and digital evidence storage and retrieval conversion fund pursuant to this section. If projected revenues of the fund are deemed insufficient to pay for conversion costs, fund monies may accumulate until sufficient monies are available in the fund.

§ 12-284.03 Distribution of fees

A. Excluding the monies that are kept by the court pursuant to subsection B of this section, the county treasurer shall transmit, distribute or deposit all monies received from the clerk of the superior court pursuant to section 12-284, subsection K as follows:

1. 1.20 percent to the state treasurer for deposit in the resource center fund established by and for the purposes of section 41-2402, subsection G.

2. 8.18 percent to the state treasurer for deposit in the domestic violence services fund established by section 36-3002.

3. 1.78 percent to the state treasurer for deposit in the child abuse prevention fund established by section 8-550.01.

4. In the county law library fund established by section 12-305, either:

(a) 7.02 percent if the county treasurer is serving in a county with a population of more than five hundred thousand persons.

(b) 14.09 percent if the county treasurer is serving in a county with a population of five hundred thousand persons or less.

5. 0.32 percent to the state treasurer for deposit in the alternative dispute resolution fund established by section 12-135.

6. To the elected officials' retirement plan fund established by section 38-802, either of the following percentages, which shall be distributed to the fund pursuant to section 38-810:

(a) 21.91 percent if the county treasurer is serving in a county with a population of more than five hundred thousand persons.

(b) 14.09 percent if the county treasurer is serving in a county with a population of five hundred thousand persons or less.

7. 17.62 percent to the state treasurer for deposit in the judicial collection enhancement fund established by section 12-113.

8. 0.24 percent to the state treasurer for deposit in the confidential intermediary and fiduciary fund established by section 8-135.

9. In the county general fund, the following percentages:

(a) 28.81 percent if the county treasurer is serving in a county with a population of more than five hundred thousand persons.

(b) 29.56 percent if the county treasurer is serving in a county with a population of five hundred thousand persons or less.

10. 6.00 percent to the elected officials' retirement plan fund established by section 38-802 for the purpose of funding a portion of the employers' contributions required pursuant to section 38-810.

B. 6.92 percent of the monies transmitted, distributed or deposited pursuant to subsection A of this section shall be kept and used by the court collecting the fees in the same manner as the seven dollars of the time payment fee prescribed by section 12-116, subsection B.

§ 12-285 Refusal of clerk to disburse fine or forfeiture; classification

A clerk of the superior court who receives a fine or forfeiture and knowingly fails or refuses to pay or disburse it according to law within thirty days after receipt thereof, is guilty of a class 2 misdemeanor.

§ 12-286 Investment of deposits; definition

A. The clerk of the superior court may invest monies received in trust in interest bearing savings accounts or certificates of deposit in banks or savings and loan associations doing business in this state whose accounts are insured by the federal deposit insurance corporation or the federal savings and loan insurance corporation. Deposits in excess of the insured amount shall be secured by the depository as prescribed in section 35-323.

B. Interest earned on investments made pursuant to this section shall be deposited in the county general fund.

C. The clerk of the superior court shall establish an accounting system for all monies received in trust which are invested in interest bearing savings accounts or certificates of deposits pursuant to this section.

D. If the county has established a county attorney victim compensation fund pursuant to section 11-538, on the fifteenth day of each month the clerk of the superior court shall transmit seventy-five per cent of the interest earned on restitution monies that are received in trust as prescribed by subsection F, paragraph 4 of this section and that accumulated in the previous month and seventy-five per cent of the interest earned on juvenile restitution monies that are received in trust as prescribed by subsection F, paragraph 5 of this section and that accumulated in the previous month to the county treasurer for deposit in the county attorney victim compensation fund.

E. If the county has established a clerk of the superior court victim location fund pursuant to section 12-287, on the fifteenth day of each month the clerk of the superior court shall transmit twenty-five per cent of the interest earned on restitution monies that are received in trust as prescribed by subsection F, paragraph 4 of this section and that accumulated in the previous month and twenty-five per cent of the interest earned on juvenile restitution monies that are received in trust as prescribed by subsection F, paragraph 5 of this section and that accumulated in the previous month to the county treasurer for deposit in the clerk of the superior court victim location fund.

F. In this section, "monies received in trust" means monies received in a fiduciary capacity by the clerk including all of the following:

1. Civil trust monies.

2. Dissolution sale of proceeds monies.

3. Probate and guardianship trust monies.

4. Criminal bonds and restitution.

5. Juvenile restitution.

6. Habeas corpus trust monies.

7. Mental incompetent trust monies.

8. Adoption trust monies.

9. Condemnation bonds.

10. Support monies.

§ 12-287 Clerk of the superior court victim location fund; exemption from lapsing

A. The board of supervisors may establish a clerk of the superior court victim location fund in the county treasury consisting of monies that are distributed pursuant to section 12-286, subsection E. The clerk of the superior court in cooperation with the board of supervisors shall administer the fund.

B. The clerk of the superior court shall use monies in the fund to either:

1. Locate victims of crime whose restitution monies are being held by the clerk of the superior court.

2. Notify the county treasurer in writing to transfer monies from the fund to the county attorney victim compensation fund.

C. The clerk of the superior court shall annually submit to the board of supervisors the fund balance and the amount of revenues that the clerk projects will be available in the fund for the next fiscal year.

D. Monies in the fund shall be used to supplement, not supplant, monies that would otherwise be allocated to the clerk for the purpose of locating victims of crime.

E. Any monies in the fund remaining unexpended and unencumbered at the end of the fiscal year do not revert to the county general fund.

§ 12-288 Removal of debts from accounting system

The clerk of the superior court may remove from the clerk's accounting system all or part of any debt due to the clerk as prescribed by section 12-284, subsection A if the clerk does all of the following:

1. Bills the debtor at least four times.

2. Submits the debt for collection to a collection agency licensed pursuant to title 32, chapter 9 and waits at least one year while the agency attempts collection.

3. Reports the debt to a credit bureau.

4. Notifies the department of revenue of the debt pursuant to section 42-1122.

5. Sends to the administrator of the funds or account prescribed in section 12-284.03 a written report of all of the debts proposed to be removed from the clerk's accounting system. The clerk shall send the report by certified mail. The report shall include all of the following:

(a) The amount of the debt and the date it was incurred.

(b) The name of the debtor.

(c) The reason for proposing the removal.

6. Waits thirty days from the date the clerk sends the report pursuant to paragraph 5 of this section and does not receive an objection from the administrator of the funds or account prescribed in section 12-284.03.

§ 12-289 Spousal maintenance enforcement enhancement fund; surcharge

A. The spousal maintenance enforcement enhancement fund is established for the clerk of the superior court consisting of monies received pursuant to subsection B of this section. The clerk of the superior court shall administer the fund. Subject to the approval of the board of supervisors and in coordination with the presiding judge, the clerk shall spend monies in the fund to enhance enforcement of spousal maintenance orders.

B. In addition to the fees required by section 12-284, subsection A, the clerk shall charge and collect a surcharge of five dollars for each filing of a petition or an answer for annulment, dissolution of marriage or legal separation. The clerk shall use this surcharge only for the purposes prescribed in this section.

§ 12-290 Peace officer identifying information; superior court records; confidentiality; definitions

A. A peace officer who believes that the life or safety of the officer or another person is in danger and that restricting access to the officer's personal identifying information will serve to reduce the danger may request that the general public be prohibited from accessing superior court records maintained by the clerk of the superior court that contain the peace officer's personal identifying information.

B. A peace officer may request this action by filing an affidavit in each case in the superior court of the county that contains the personal identifying information requesting that the court order the general public be prohibited from accessing records that contain the personal identifying information. Each affidavit shall contain the officer's personal identifying information and any other information required by the court.

C. To prevent multiple filings, a peace officer shall deliver the affidavit to the peace officer's commanding officer, or the commanding officer's designee, who shall file the affidavits at one time. In the absence of an affidavit that contains a request for immediate action and that is supported by facts justifying an earlier presentation, the commanding officer, or the commanding officer's designee, shall not file affidavits more often than quarterly.

D. If the court finds that the life or safety of the officer or another person is in danger and that restricting access to records that contain the officer's personal identifying information will serve to reduce the danger the court shall grant the petition and restrict access as necessary.

E. The supreme court shall adopt rules to implement this section.

F. For the purposes of this section:

1. "Peace officer":

(a) Has the same meaning prescribed in section 1-215.

(b) Includes a federal law enforcement officer or agent who resides in this state and who has the power to make arrests pursuant to federal law.

2. "Personal identifying information" means the officer's residential address, telephone number and contact information as stated in the records.

Article 10 Family Law Referee

§ 12-298 Appointment of family law referee or court commissioner; compensation; qualifications; duties; powers; procedures

A. Notwithstanding section 12-213 family law referees or court commissioners shall be appointed by the presiding judge of the superior court in each county to provide for the expeditious establishment and enforcement of support orders brought pursuant to title 25, chapter 5, article 1 and chapter 9, article 10 of this title and actions that are additionally brought pursuant to the Arizona state plan for support collection under the requirements of title IV-D of the social security act (42 United States Code section 651). Family law referees or court commissioners need not be appointed in counties which have received expedited process waivers pursuant to 42 United States Code section 666 (a)(2).

B. Reasonable compensation for family law referees shall be fixed by the presiding judge.

C. The family law referees or court commissioners shall conduct hearings in assigned matters dealing with the establishment and enforcement of support obligations brought under the Arizona state plan for support collection pursuant to the requirements of title IV-D of the social security act (42 United States Code section 651). The powers of a family law referee are those granted to a master under rule 53, Arizona rules of civil procedure. Court commissioners shall have authority to hear and determine matters arising under this subsection or subsection A of this section in addition to the powers granted to court commissioners under rules of the supreme court.

D. The family law referee shall prepare a report on the matters submitted to him consisting of written findings and recommendations. The family law referee shall not ordinarily be required to file with his report a transcript of the proceedings but shall make sufficient findings of fact in his report to justify the recommendations made to the court. The family law referee shall file the report with the clerk of the court along with the original exhibits. The clerk shall provide a copy of the report to all parties.

E. The family law referee may make recommendations of a reasonable amount of child support, using factual findings and applicable support guidelines. The family law referee may make findings regarding support arrearages owed. The family law referee may make recommendations regarding the method and manner of payment, imposition of assignment of earnings or periodic entitlements, or other matters or remedies involved in the establishment or enforcement of support obligations. Unless objection is timely made, the court may accept the family law referee's findings and recommendations and make its order in accordance with them.

F. Either party may file written objections to the findings and recommendations of the family law referee within fifteen days after being served with them. The objecting party shall provide notice for a hearing on the objection as prescribed in rule 6(c), Arizona rules of civil procedure. The court shall accept the findings of fact of the family law referee unless they are clearly erroneous. The court, after a hearing, may adopt the report, modify it in whole or in part, receive further evidence or recommit it with instructions.

G. If a party does not appear before the family law referee after appropriate service, the family law referee may proceed ex parte or may cause a notice to be served on that party of the intent to recommend judgment on the pleadings. Service of such notice shall be by regular mail to the last known address of the party and is deemed complete on mailing. The notice shall advise the nonappearing party that he has fifteen days from the date of mailing to appear or otherwise object to entry of judgment on the pleadings. The court may enter judgment on the pleadings on recommendation of the family law referee if the party does not appear within fifteen days after notice.

Article 11 Community Punishment Program

§ 12-299 Definitions

In this article, unless the context otherwise requires:

1. "Advisory committee" means a local community punishment advisory committee appointed by the presiding judge of the superior court.

2. "Application process and procedures" means the criteria and guidelines developed by the supreme court for establishing community punishment plans, granting monies for programs authorized by this article and monitoring and reviewing programs funded under this article.

3. "Community punishment" means programs for persons placed on supervised probation or intensive probation which are established pursuant to this article and provide for increased conditions of probation and community based programs and services that emphasize supervision, surveillance, control, public protection, community work service, restitution and victims' rights and that provide opportunities for rehabilitation and treatment.

4. "Community punishment plan" means a document which is prepared by the presiding judge of the superior court and submitted to the supreme court pursuant to the requirements set forth in the application process and procedures.

5. "Private human services agency" means a nonprofit or for profit organization which provides treatment, housing or other services to individuals, families or groups.

6. "Renovation" means the repair, remodeling, alteration or expansion of existing buildings or structures to make them habitable or suitable for program operations. Renovation includes the acquisition and installation of necessary initial equipment.

§ 12-299.01 Submission of plan; use of monies; prohibitions

A. Subject to available monies, the supreme court shall allocate monies to the superior court in a participating county to establish and operate community punishment programs.

B. The presiding judge of the superior court in each county desiring to participate in the community punishment program prescribed in this article may prepare a plan pursuant to guidelines issued by the supreme court. The plan shall be submitted to the supreme court. The supreme court guidelines shall require that the plan include programs and services which:

1. Enhance the adult probation services system by developing additional probation conditions, programs and services for offenders placed on supervised probation and intensive probation.

2. Provide programs, services and increased supervision, surveillance and control to special probation populations.

3. Promote accountability of offenders to their local community by requiring financial restitution to victims of crimes or community work service to local governments and community agencies.

4. Reduce the number of felony offenders committed by the superior court to county jails by ordering strict terms of control, supervision and correctional treatment as conditions of supervised probation and intensive probation.

5. Maintain safe and cost effective community punishment programs which emphasize supervision, surveillance and control of offenders.

6. Encourage the involvement of local officials and interested citizens in developing local community punishment programs.

7. Promote the development of community punishment programs and services which are tailored to the specific needs of the superior court in each participating county.

C. The plan shall include a proposed budget necessary to implement and operate the plan. All monies provided shall be used to supplement monies currently used for community based sentencing and adult probation programs and services.

D. Monies may be used to develop or expand the range of community punishment programs and services at the local level. Programs and services may include the following:

1. Noncustodial programs and services which involve supervision and surveillance but do not involve housing the offender in a jail or residential facility. Examples include community work service supervision, victim restitution supervision, house arrest, electronic monitoring, victim-offender reconciliation or mediation, alcohol or drug abuse outpatient treatment and psychological or psychiatric counseling.

2. Community residential programs which involve supervision in a residential setting. Examples include restitution centers, halfway houses, detoxification centers, inpatient drug or alcohol treatment and emergency shelters.

3. Individualized services which evaluate the special needs of the population served under this article. Services to the court to assist in the evaluation and screening of eligible offenders may include purchasing psychological, medical, educational or vocational services, drug or alcohol urine screening and a plan for diagnostic evaluations of specific clients. Other services which may be purchased on an individualized basis include job training, alcohol or drug counseling, individual or family counseling, literacy training and education, high school equivalency and transportation subsidies. These services are intended to supplement and enhance the local adult probation system and to enable felony offenders to be treated near their homes.

E. Community punishment monies may be used to implement victims' rights programs and services, case classification and supervision strategies by funding additional probation officers to personally interview victims and witnesses, conduct presentence investigations and supervise reduced case loads of select felony offenders.

F. Community punishment monies may be used to acquire, renovate and operate community based facilities established to provide the programs and services set forth in subsections B and D.

G. The presiding judge of the superior court may enter into agreements with qualified private human services agencies for the provision of any or all of these programs and services.

H. Private human service agencies shall not use these monies to supplant existing monies from this state or the local government for existing community sentencing programs and services.

I. Monies shall not be used for the construction, renovation or operation of county or municipal jails.

§ 12-299.02 Community punishment advisory committee; duties

A. In the discretion of the presiding judge of the superior court, a community punishment advisory committee may be appointed before submitting a plan under this article.

B. If a community punishment advisory committee is appointed pursuant to this article, the advisory committee shall:

1. Be composed of at least five members, not more than one-half of whom shall be appointed from the disciplines of law enforcement, corrections, education, mental health, victim services, social services or probation and at least one-half of whom shall be other citizens having an interest in and knowledge of the criminal justice system.

2. Have a chairman and vice-chairman appointed by the presiding judge of the superior court.

3. Operate subject to guidelines and procedures established by the supreme court.

C. The advisory committee shall perform the following duties:

1. Assess community-wide sentencing needs and advise the presiding judge regarding specific programs and services.

2. Review the proposed local plan and make recommendations to the presiding judge.

3. Monitor the effectiveness of local community punishment programs and services and advise the presiding judge regarding needed modifications.

4. Inform and educate the general public regarding the need for community punishment programs.

5. Make a report on a periodic basis to the presiding judge on the status and effectiveness of community punishment programs and services.

D. An advisory committee initially established pursuant to this article shall receive an orientation developed and conducted by the presiding judge with the assistance of the supreme court and the adult probation department.

E. The chief adult probation officer shall provide staff assistance to the advisory committee.

§ 12-299.03 Duties of the supreme court; evaluation

A. The supreme court shall:

1. Implement and administer the community punishment program.

2. Adopt necessary guidelines, rules, standards and policies to implement this article.

3. Facilitate the development of local plans.

4. Develop and implement an application process and procedures.

5. Review and approve plans and budgets.

6. Allocate funding.

7. Provide statewide training and technical assistance to the superior court, adult probation departments and advisory committees regarding community punishment.

8. Conduct an evaluation of all programs on a periodic basis to ensure program accountability. The evaluation report shall include information for the superior court in each participating county on the number of offenders serving suspended sentences on probation and intensive probation, the average cost per offender, the amount of restitution, fines and fees paid, the number of community restitution hours contributed by offenders and the number of offenders who have successfully completed terms of probation. The supreme court shall submit the report to the governor, the speaker of the house of representatives and the president of the senate and shall provide a copy of this report to the secretary of state. The supreme court may contract with a private consultant to prepare this evaluation report. Beginning July 1, 2011, the report shall be submitted electronically.

B. The supreme court may contract directly with private human service agencies to develop, implement and operate community punishment programs.

§ 12-299.04 Budget requests

The presiding judge of the superior court shall annually submit a proposed budget for the following fiscal year for the community punishment program to the supreme court. The supreme court shall review and analyze each county budget and include the requests in its annual budget request along with costs necessary for the supreme court to administer the program.

§ 12-299.05 Administrative personnel

The supreme court may employ such personnel as it deems necessary to carry out this article.

Article 12 Court Security Officers

§ 12-299.10 Court security officers; certification; powers and duties

A. Each court may use certified court security officers to ensure the safety of judicial branch employees and facilities. A certified court security officer must be an employee of the judicial branch. The supreme court shall certify court security officers.

B. A certified court security officer, in the performance of the officer's duties, may do all of the following:

1. With reasonable cause, detain a person on the premises for a reasonable time to contact a law enforcement officer and maintain the safety and well-being of a person who is in a judicial branch facility, on judicial branch grounds or where a court is convening.

2. Refuse to allow a weapon or unlawful material in a judicial branch facility, on judicial branch grounds or where a court is convening.

3. Respond to threats to and emergencies involving a judicial branch employee in a judicial branch facility, on judicial branch grounds or where a court is convening.

4. Receive information from a law enforcement agency regarding threats to a judicial branch facility or judicial branch grounds or to a judicial branch employee.

C. A certified court security officer is not eligible for enrollment in the retirement plans established by title 38, chapter 5, article 4, 4.1, 4.2 or 6 due solely to employment as a certified court security officer.

Chapter 3 Fees and Costs

Article 1 Fees in General

§ 12-301 Time of payment of fees; effect of failure to collect; alternative payment methods

A. All fees are payable at the time the service is rendered, unless otherwise provided by law. An officer may refuse to perform any service in any action or proceeding, criminal proceedings excepted, until the fees are paid.

B. Failure to collect the fee shall not affect the validity of the act or service.

C. The court may allow fees to be paid by alternative methods, including credit cards, charge cards, debit cards and electronic funds transfers.

D. No court shall either impose or collect a fee for filing an answer to a complaint for forcible entry or detainer.

§ 12-302 Extension of time for payment of fees and costs; relief from default for nonpayment; deferral or waiver of court fees and costs; definitions

A. The court or any judge may for good cause shown extend the time for paying any court fees and costs required by law or may relieve against a default caused by nonpayment of a fee within the time provided by law, but no fees paid shall be refunded.

B. The supreme court shall adopt forms and procedures for deferral or waiver of court fees and costs.

C. Except as provided in subsection E of this section, the court shall grant an application for deferral of court fees and costs if the applicant establishes by affidavit, including supporting documentation, that the applicant either:

1. Is receiving benefits pursuant to one or more of the following programs:

(a) The temporary assistance for needy families program established by section 403 of title 4 of the social security act as it exists after August 21, 1996.

(b) The food stamp program (7 United States Code sections 2011 through 2029).

2. Is receiving benefits pursuant to the supplemental security income program (42 United States Code sections 1381 through 1385).

3. Has an income that is insufficient or barely sufficient to meet the daily essentials of life and that includes no allotment that could be budgeted for the fees and costs that are required to gain access to the court. In considering insufficient income pursuant to this paragraph, the court may consider the following as evidence of insufficient income:

(a) The applicant has a gross income that as computed on a monthly basis is one hundred fifty percent or less of the current poverty level established by the United States department of health and human services. Gross monthly income includes the applicant's share of community property income.

(b) The applicant's income is considered to be sufficient, but the applicant provides proof of extraordinary expenses, including medical expenses, costs of care for elderly family members or family members with disabilities or other expenses that are deemed extraordinary, that reduce the applicant's gross monthly income to at or below one hundred fifty percent of the current poverty level established by the United States department of health and human services.

D. On proof that the applicant is permanently unable to pay fees or costs, the court shall waive them. For the purposes of this subsection, "permanently unable to pay" means the applicant's income and liquid assets are insufficient or barely sufficient to meet the daily essentials of life and the income and liquid assets are unlikely to change in the foreseeable future.

E. Except in cases of dissolution of marriage, legal separation, annulment or establishment, enforcement or modification of child support, and notwithstanding subsection A of this section or chapter 9, article 4 of this title, if the applicant is an inmate who is confined to a correctional facility operated by the state department of corrections and who initiates a civil action or proceeding, the inmate is responsible for the full payment of actual court fees and costs. On filing the civil action or proceeding, the clerk of the court shall assess and, when monies exist, collect as a partial payment of any court fees and costs required by law a first time payment of twenty percent. Thereafter the state department of corrections shall withhold twenty percent of all deposits into the prisoner's spendable account administered by the department until the actual court fees and costs are collected in full. The state department of corrections shall annually forward any monies withheld to the clerk of the court of each court of jurisdiction before January 31. If a prisoner is released before the full fees and costs are collected, the state department of corrections shall forward the amount of fees and costs collected through the date of the prisoner's release. The clerk of the court of each court of jurisdiction is responsible for sending the state department of corrections a copy of the order mandating the amount of fees and costs to be paid. This subsection does not prohibit an applicant from filing a civil action or proceeding if the applicant is unable to pay the filing fees.

F. At the time an applicant signs and submits the application for deferral to the court, the applicant shall acknowledge under oath and sign a consent to judgment. By signing the consent to judgment, the applicant consents to judgment being entered against the applicant for all fees and costs that are deferred but that remain unpaid after thirty calendar days following the entry of final judgment or order. A consent judgment may be entered against the applicant unless one of the following applies:

1. The applicant has an established schedule of payment in effect and is current with payments.

2. A supplemental application for further deferral or waiver has been filed and is pending.

3. In response to a supplemental application, the court orders that the fees and costs be further deferred or waived.

4. Within twenty days of the date the court denies the supplemental application, the applicant either pays the fees or requests a hearing on the court's final order denying further deferral or waiver. If the applicant requests a hearing, the court shall not enter a consent judgment unless a hearing is held, further deferral or waiver is denied and payment has not been made within the time prescribed by the court.

G. An applicant who is granted a deferral or waiver or a party to the action who knows of any change in the financial circumstances of the applicant shall promptly notify the court of the change in the applicant's financial circumstances during the pendency of the action that affects the applicant's ability to pay court fees and costs. If within ten days after notice and a hearing the court determines that the applicant's financial circumstances have changed and that the applicant no longer meets the eligibility requirements of this section, the court shall order the applicant to pay the deferred or waived fees and costs.

H. The following court fees and costs may be deferred or waived, except that the county shall pay the fees and costs in paragraphs 6 and 7 of this subsection on the granting of an application for deferral or waiver and an applicant who has been granted a deferral shall reimburse the county for the fees and costs in paragraphs 6 and 7 of this subsection:

1. Filing fees.

2. Fees for issuance of either a summons or subpoena.

3. Fees for obtaining one certified copy of a temporary order in a domestic relations case.

4. Fees for obtaining one certified copy of a final order, judgment or decree in all civil proceedings.

5. Sheriff, marshal, constable and law enforcement fees for service of process if any of the following applies:

(a) The applicant established by affidavit that the applicant has attempted without success to obtain voluntary acceptance of service of process.

(b) The applicant's attempt to obtain voluntary acceptance of service of process would be futile or dangerous.

(c) An order of protection or an injunction against harassment in favor of the applicant and against the party sought to be served exists and is enforceable.

6. The fee for service by publication if service is required by law and if the applicant establishes by affidavit specific facts to show that the applicant has exercised due diligence in attempting to locate the person to be served and has been unable to do so.

7. Court reporter's fees for the preparation of court transcripts if the court reporter is employed by the court.

8. Appeal preparation and filing fees at all levels of appeal and photocopy fees for the preparation of the record on appeal pursuant to sections 12-119.01, 12-120.31 and 12-2107 and section 12-284, subsection A.

I. If the case is appealed, the initial deferral or waiver remains in effect unless there is a change in the applicant's financial circumstances. If a case is appealed an applicant may be required to submit to the appellate court a new application for a deferral or waiver of the court fees and costs.

J. If a judgment is rendered for court fees and costs, the court fees and costs deferred but unpaid and the expenses paid by the county under this section shall be included in the judgment and shall be paid directly to the clerk of the court by the party against whom the court fees and costs were assessed.

K. A waiver of court fees or costs shall not be granted for:

1. Matters that are filed as class actions pursuant to rule 23 of the Arizona rules of civil procedure.

2. Civil actions other than cases of dissolution of marriage, legal separation, annulment or establishment, enforcement or modification of child support that are filed by persons who at the time of filing the application are incarcerated as a result of a felony conviction in an out-of-state correctional facility or in a jail waiting to be transported to a state department of corrections facility.

3. Civil actions other than cases of dissolution of marriage, legal separation, annulment or establishment, enforcement or modification of child support filed by a pro se litigant who has been previously declared a vexatious litigant by any court.

L. This section does not limit the court's discretion in deferring, waiving or ordering the county to pay any fees and costs as may be necessary and appropriate.

M. If an applicant who is granted a deferral or waiver is found to be a vexatious litigant by any court during the pendency of the action, the court shall order the applicant to pay the deferred or waived fees and costs.

N. For the purposes of this section:

1. "Deferral" means either postponement of an obligation to pay fees or establishment of a schedule for payment of fees.

2. "Further deferral" means the establishment of a schedule for payment of fees.

§ 12-303 Witness fees and mileage

A material witness attending the trial of a civil action shall be paid twelve dollars for each day's attendance to and including the time it was necessary for him to leave his residence and go to the place of trial and his discharge as a witness. The witness shall also be paid mileage at the rate of twenty cents for each mile actually and necessarily traveled from his place of residence in the state of Arizona to the place of trial, to be computed one way only.

§ 12-304 Exemption of state, county, city, town or political subdivision of a county from court fees

No court fees shall be charged:

1. The state, a county, a city, a town or a political subdivision of a county.

2. A commission, board or department of the state, a county, a city, a town or a political subdivision of a county.

3. An official of the state, county, city, town or political subdivision of a county, who is a party to an action in his official capacity.

§ 12-305 County law library fund

A. A county law library fund is established in each county consisting of monies received pursuant to section 12-284.03, subsection A, paragraph 4 and section 41-178.

B. The county law library fund shall be used for the purposes of enhancing legal research capabilities in the county law library and shall be under the direction of a judge of the superior court in the county. The board of supervisors shall disburse monies from the fund only on the order of the presiding judge of the superior court.

C. If the balance in the county law library fund exceeds three thousand dollars at the close of the fiscal year, the board of supervisors by resolution adopted by vote of the members, and with the concurrence of the judge of the superior court in the county, may transfer the surplus of the fund in excess of three thousand dollars to a building repair fund. Monies so transferred shall be expended only for additions, alterations and repairs to the courthouse. The expenditures are subject to title 41, chapter 23.

Article 2 Fees in the Superior Court

§ 12-311 Filing, appearance, judgment and decree fees

At the commencement of each action or proceeding, except as otherwise provided by law, the plaintiff shall pay to the clerk of the superior court a fee pursuant to section 12-284. The defendant, on his appearance, shall pay to the clerk a fee pursuant to section 12-284. Each defendant appearing by different counsel than his codefendant or codefendants, and answering separately, shall also pay a fee pursuant to section 12-284. Such fees shall include all fees to be paid, exclusive of fees for copies and for certifying.

§ 12-312 Fees for intervenors and new parties

A. A person intervening in a civil action in the superior court shall pay the same fees required to be paid by a plaintiff.

B. A person brought in as a party plaintiff or defendant by either party to an action or by order of the court shall pay the fee of a plaintiff or a defendant, as the case may be, as provided in section 12-284.

§ 12-313 Probate conservatorship, guardianship and fiduciary fees

A. A fee established pursuant to section 12-284 shall be paid by the petitioner to the clerk of the superior court on filing any of the following:

1. A petition in a formal testacy or appointment proceeding,

2. An application for informal probate or informal appointment,

3. A petition for supervised administration,

4. A petition to appoint a guardian,

5. A petition to appoint a conservator or make other protective order.

B. If the same person petitions for special letters as well as for general letters in a single estate, he shall pay only one fee. If in a single estate the same person files an application or petition under title 14, chapter 3 and a subsequent petition under the same chapter a fee established pursuant to section 12-284 shall be paid for each such filing. If a petition to appoint a guardian also requests appointment of a conservator or other protective order, only one fee shall be due for the filing. If the public fiduciary is the petitioner, the fee shall not be required to be paid on filing any of the petitions or applications for a protective order, except that such fee shall be paid by the public fiduciary out of any assets of each such estate prior to his discharge at the termination of such estate.

C. Any person opposing a petition in a testacy or appointment proceeding or appointment of a guardian or conservator shall pay a fee established pursuant to section 12-284 to the clerk. Every person opposing such contest, unless he has previously paid a clerk's fee in the matter, shall pay a fee established pursuant to section 12-284 to the clerk. The provisions of sections 12-311 and 12-312 in relation to several persons appearing by the same attorney are applicable to this section.

§ 12-314 Prohibition upon rule allowing tax, charge or allowance

The superior court shall make no rule imposing a tax or charge upon a legal proceeding or make an allowance to any officer for services.

Article 3 Fees in the Supreme Court

§ 12-321 Appeals or original applications

A. On appeal from the judgment or order of the superior court in a civil action, the appellant, at the time of filing the index of record on appeal, shall pay to the clerk of the supreme court a fee pursuant to section 12-119.01. Within ten days after filing such record the appellee shall pay to the clerk of the supreme court a fee pursuant to section 12-119.01, which shall be in full for all fees except those allowed by law.

B. An applicant for a writ of mandamus, certiorari, quo warranto or other writ within the original jurisdiction of the supreme court, except a writ of habeas corpus, shall pay the clerk a fee pursuant to section 12-119.01 at the time of filing the petition or application. Any party opposing the issuance of such writ shall pay the clerk a fee pursuant to section 12-119.01.

§ 12-322 Notice of prepayment; effect of failure to pay

A. The clerk of the supreme court, upon receipt of the index of record on an appeal, shall notify the appellant or the appellant's attorney that the record has been received and will be filed upon payment of the fee provided in section 12-321. If the fee is not paid within ten days after receiving notice, the appeal shall be deemed abandoned and the record returned to the court from which it came, and the judgment may be enforced as if no appeal had been taken.

B. The clerk, in like manner, shall notify the appellee or the appellee's attorney of the time of filing the index of record, and unless the fee provided in section 12-321 is paid within ten days after the filing, the appellee shall not be entitled to be heard.

§ 12-323 Certificate of admission to the practice of law; certified copies of papers; background investigation

A. The clerk of the supreme court shall receive the following fees:

1. For each certificate of admission to the practice of law, a fee pursuant to section 12-119.01.

2. For each certified copy of any record, any opinion of court or any paper or proceedings, for each folio, a fee pursuant to section 12-119.01.

B. The supreme court shall require each person who applies for certification or licensure to practice law to furnish a full set of fingerprints to enable a criminal background investigation to be conducted to determine the suitability of the applicant. The completed applicant fingerprint card shall be submitted with the fee prescribed in section 41-1750 to the department of public safety. The applicant shall bear the cost of obtaining the applicant's criminal history record information. The cost shall not exceed the actual cost of obtaining the applicant's criminal history record information. Applicant criminal history records checks shall be conducted pursuant to section 41-1750 and Public Law 92-544. The department of public safety is authorized to exchange the submitted applicant fingerprint card information with the federal bureau of investigation for a national criminal history records check.

Article 4 Costs Defined

§ 12-331 Taxable costs in supreme court

Costs in the supreme court shall include:

1. The amount paid to the clerk of that court.

2. The amount paid to the clerk of the superior court for certified copies of the record and for transmitting it.

3. The cost of printing or typing the abstract of record and briefs.

4. The amount paid for the transcript of the notes of the reporter of the superior court.

5. Such other disbursements as may have been incurred pursuant to an order of the court or agreement of the parties.

§ 12-332 Taxable costs and jury fee in superior court

A. Costs in the superior court include:

1. Fees of officers and witnesses.

2. Cost of taking depositions.

3. Compensation of referees.

4. Cost of certified copies of papers or records.

5. Sums paid a surety company for executing any bond or other obligation therein, not exceeding, however, one per cent on the amount of the liability on the bond or other obligation during each year it was in force.

6. Other disbursements that are made or incurred pursuant to an order or agreement of the parties.

B. A jury fee shall also be included in the judgment and taxed as costs and shall be fixed by the court at the time the judgment is given. The jury fee shall include the cost of reimbursement for juror travel expenses. The jury fee shall be paid to the clerk of the court for transmittal to the county treasurer who shall dispose of it as other similar money is disposed of. An action to collect jury fees shall be commenced:

1. Only if the judgment fixing the jury fees is recorded in the office of the county recorder not later than thirty days after the judgment is rendered.

2. At any time after the date of the recording of the judgment fixing the jury fees and the judgment does not expire until it is paid in full.

C. The court may at any time for good cause shown relieve a person from payment of a jury fee if the court believes that such relief is proper.

§ 12-333 Disallowance as costs of charge for unrequired papers

A copy of a paper not required by law to be copied shall not be allowed and taxed as costs. If a party or attorney takes out copies of any pleadings or papers in an action, it shall be at his own expense, and a charge for the copies shall not be allowed as costs.

Article 5 Recovery of Costs

§ 12-341 Recovery of costs

The successful party to a civil action shall recover from his adversary all costs expended or incurred therein unless otherwise provided by law.

§ 12-341.01 Recovery of attorney fees

A. In any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney fees. If a written settlement offer is rejected and the judgment finally obtained is equal to or more favorable to the offeror than an offer made in writing to settle any contested action arising out of a contract, the offeror is deemed to be the successful party from the date of the offer and the court may award the successful party reasonable attorney fees. This section shall not be construed as altering, prohibiting or restricting present or future contracts or statutes that may provide for attorney fees.

B. The award of reasonable attorney fees pursuant to this section should be made to mitigate the burden of the expense of litigation to establish a just claim or a just defense. It need not equal or relate to the attorney fees actually paid or contracted, but the award may not exceed the amount paid or agreed to be paid.

C. The court and not a jury shall award reasonable attorney fees under this section.

§ 12-341.02 Recovery of legal document preparation fees

The court may award to the prevailing party the cost of document preparation if prepared by a legal document preparer who is certified by the supreme court. The party seeking recovery will file a sworn affidavit of costs with the court.

§ 12-342 Costs on appeal

A. On an appeal by the party against whom judgment was given in the court below, if the judgment of the appellate court is against him, but for a lesser amount, he shall recover costs in the appellate court, but shall be adjudged to pay costs in the court below. If the judgment of the appellate court is against him for the same or a greater amount than in the court below, the adverse party shall recover costs in both courts.

B. On an appeal by the party in whose favor judgment was given in the court below, if the judgment of the appellate court is in his favor for a greater amount, he shall recover costs in both courts. If judgment of the appellate court is in his favor but for the same or less amount than in the court below, he shall recover costs in the court below and pay costs in the court above.

§ 12-343 Costs of new trial, arrest of judgment or insufficient pleadings

A. The costs of a new trial may either abide the result of the action or may be taxed against the party to whom a new trial is granted, as may be adjudged by the court at the time of granting a new trial.

B. When a judgment is arrested or a verdict set aside because of insufficiency of the pleadings of the party in whose favor the verdict or judgment was rendered, the costs thereof shall be taxed against the party whose pleadings were adjudged insufficient.

§ 12-344 Costs upon splitting of action

Where a plaintiff brings in the same court several actions against the same defendant for claims which should have been joined, he shall recover the costs of one action only, and the costs of the other actions shall be adjudged against him unless sufficient reasons appear to the court for instituting several actions.

§ 12-345 Exemption of state, county, city, town or political subdivision of a county from court fees

No court costs shall be charged:

1. The state, a county, a city, a town or a political subdivision of a county.

2. A commission, board or department of the state, a county, a city, a town or a political subdivision of a county.

3. An official of the state, county, city, town or political subdivision of a county, who is a party to an action in his official capacity.

§ 12-346 Statement of costs; service and objections

A. The party in whose favor judgment is rendered and who claims costs shall file a verified statement of his costs and serve a copy thereof on the opposing party. The statement shall be filed and served within ten days after judgment, unless for good cause shown the time is extended by the court.

B. At any time within five days after receipt of the copy of the statement of costs, the opposing party may file objections to the statement, serving a copy thereof on the party claiming such costs. The court shall pass upon the objections and by its order correct the statement of costs to the extent that it requires correction.

§ 12-347 Inclusion of costs and interest in judgment

The clerk of the court shall include in the judgment entered by him the costs and interest on the verdict from the time it was rendered.

§ 12-348 Award of fees and other expenses against the state or a city, town or county; reduction or denial of award; application; basis for amount of award; source of award; definitions

A. In addition to any costs that are awarded as prescribed by statute, a court shall award fees and other expenses to any party other than this state or a city, town or county that prevails by an adjudication on the merits in any of the following:

1. A civil action brought by this state or a city, town or county against the party.

2. A court proceeding to review a state agency decision pursuant to chapter 7, article 6 of this title or any other statute authorizing judicial review of agency, city, town or county decisions. A licensee that prevails in an appeal of an agency's final decision following a conference pursuant to section 41-1092.08, subsection I is entitled to recover reasonable attorney fees and costs incurred during all stages of the proceeding.

3. A proceeding pursuant to section 41-1034.

4. A special action proceeding brought by the party to challenge an action by this state or a city, town or county against the party.

5. An appeal by this state to a court of law from a decision of the personnel board under title 41, chapter 4, article 6.

6. A civil action brought by the party to challenge the seizure and sale of personal property by this state or a city, town or county.

7. A civil action brought by the party to challenge a rule, decision, guideline, enforcement policy or procedure of a state agency or commission that is statutorily exempt from the rulemaking requirements of title 41, chapter 6 on the grounds that the rule, decision, guideline, enforcement policy or procedure is not authorized by statute or violates the Constitution of the United States or this state.

B. In addition to any costs that are awarded as prescribed by statute, except as provided in subsection C of this section, a court may award fees and other expenses to any party, other than this state or a city, town or county, that prevails by an adjudication on the merits in an action brought by the party against this state or a city, town or county challenging:

1. The assessment, collection or refund of taxes or in an action brought by this state or a city, town or county against the party to enforce the assessment or collection of taxes or the denial of a refund.

2. The adequacy or regularity of notice of delinquent taxes.

3. The regularity of sales of property for delinquent taxes.

C. The court in its discretion may deny the award provided for in this section or may reduce the award if it finds that any of the following applies:

1. During the course of the proceeding the prevailing party unduly and unreasonably protracted the final resolution of the matter.

2. The reason that the party other than this state or a city, town or county has prevailed is an intervening change in the applicable law.

3. The prevailing party refused an offer of civil settlement that was at least as favorable to the party as the relief ultimately granted.

D. A party may apply pursuant to the applicable procedural rules for an award of attorney fees and other expenses authorized under this section and shall include as part of the application evidence of the party's eligibility for the award and the amount sought, including an itemized statement from the attorneys and experts stating the actual time expended in representing the party and the rate at which the fees were computed.

E. The court shall base any award of fees as provided in this section on prevailing market rates for the kind and quality of the services furnished, except that:

1. The award of attorney fees may not exceed the amount that the prevailing party has paid or agreed to pay the attorney or a maximum amount of $350 per hour.

2. An award of fees against this state or a city, town or county shall not exceed $125,000 for fees incurred at each level of judicial appeal.

3. For each calendar year beginning from and after December 31, 2015, the attorney general shall adjust the income dollar amounts for maximum awards made pursuant to subsection B of this section according to the average annual change in the metropolitan Phoenix consumer price index published by the United States bureau of labor statistics. The revised dollar amounts shall be raised to the nearest whole dollar. The income dollar amounts may not be revised below the amounts prescribed in the prior calendar year.

F. The particular state agency over which a party prevails shall pay the fees and expenses awarded as provided in this section from any monies appropriated to the agency for that purpose. If no agency is involved or if an agency fails or refuses to pay fees and other expenses within thirty days after demand by a person who has received an award pursuant to this section, and if no further review or appeals of the award are pending, the person may file a claim for the fees and other expenses with the department of administration, which shall pay the claim within thirty days, in the same manner as an uninsured property loss under title 41, chapter 3.1, article 1. If, at the time the agency failed or refused to pay the award, it had appropriated monies either designated or assignable for the purpose of paying awards, the legislature shall reduce the agency's operating appropriation for the following year by the amount of the award and shall appropriate the amount of the reduction to the department of administration as reimbursement for the loss.

G. A city, town or county shall pay fees and expenses awarded as provided in this section within thirty days after demand by a party who has received an award if no further review or appeal of the award is pending.

H. This section does not:

1. Apply to an action arising from a proceeding before this state or a city, town or county in which the role of this state or a city, town or county was to determine the eligibility or entitlement of an individual to a monetary benefit or its equivalent, to adjudicate a dispute or issue between private parties or to establish or fix a rate.

2. Apply to proceedings brought by this state pursuant to title 13 or 28.

3. Entitle a party to obtain fees and other expenses incurred in making an application for an award pursuant to this section for fees and other expenses.

4. Apply to proceedings involving eminent domain, foreclosure, collection of judgment debts or proceedings in which this state or a city, town or county is a nominal party.

5. Personally obligate any officer or employee of this state or a city, town or county for the payment of an award entered under this section.

6. Apply, except as provided in subsection A, paragraph 5 of this section, to proceedings involving the personnel board under title 41, chapter 4, article 6.

7. Apply to proceedings brought by a city, town or county pursuant to title 13 or 28.

8. Apply to proceedings brought by a city, town or county on collection of taxes or pursuant to traffic ordinances or to criminal proceedings brought by a city, town or county on ordinances that contain a criminal penalty or fine for violations of those ordinances.

I. For the purposes of this section:

1. "Fees and other expenses" means the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test or project that the court finds to be directly related to and necessary for the presentation of the party's case and reasonable and necessary attorney fees, and in the case of an action to review an agency decision pursuant to subsection A, paragraph 2 of this section, all fees and other expenses that are incurred in the proceedings in which the decision was rendered.

2. "Licensee" has the same meaning prescribed in section 41-1092.

3. "Party" means an individual, partnership, corporation, limited liability company, limited liability partnership, association or public or private organization.

4. "State" means this state and any agency, officer, department, board or commission of this state.

5. "Taxes" includes all taxes and related levies and assessments addressed in section 12-163.

§ 12-348.01 Recovery of attorney fees; governmental entities

Notwithstanding section 12-348, in addition to any costs that are awarded by statute, if an agency, department, board or commission of this state, a city, town or county, governmental officer acting in the officer's official capacity or an association whose membership is primarily composed of governmental entities files a lawsuit against this state, or an agency, department, board or commission of this state, a city, town or county, governmental officer acting in the officer's official capacity or an association whose membership is primarily composed of governmental entities, the court shall award reasonable attorney fees to the successful party in the action.

§ 12-349 Unjustified actions; attorney fees, expenses and double damages; exceptions; definition

A. Except as otherwise provided by and not inconsistent with another statute, in any civil action commenced or appealed in a court of record in this state, the court shall assess reasonable attorney fees, expenses and, at the court's discretion, double damages of not to exceed five thousand dollars against an attorney or party, including this state and political subdivisions of this state, if the attorney or party does any of the following:

1. Brings or defends a claim without substantial justification.

2. Brings or defends a claim solely or primarily for delay or harassment.

3. Unreasonably expands or delays the proceeding.

4. Engages in abuse of discovery.

B. The court may allocate the payment of attorney fees among the offending attorneys and parties, jointly or severally, and may assess separate amounts against an offending attorney or party.

C. Attorney fees shall not be assessed if after filing an action a voluntary dismissal is filed for any claim or defense within a reasonable time after the attorney or party filing the dismissal knew or reasonably should have known that the claim or defense was without substantial justification.

D. This section does not apply to the adjudication of civil traffic violations or to any proceedings brought by this state pursuant to title 13.

E. Notwithstanding any other law, this state and political subdivisions of this state may be awarded attorney fees pursuant to this section.

F. For the purposes of this section, "without substantial justification" means that the claim or defense is groundless and is not made in good faith.

§ 12-350 Determination of award; reasons; factors

In awarding attorney fees pursuant to section 12-349, the court shall set forth the specific reasons for the award and may include the following factors, as relevant, in its consideration:

1. The extent of any effort made to determine the validity of a claim before the claim was asserted.

2. The extent of any effort made after the commencement of an action to reduce the number of claims or defenses being asserted or to dismiss claims or defenses found not to be valid.

3. The availability of facts to assist a party in determining the validity of a claim or defense.

4. The relative financial positions of the parties involved.

5. Whether the action was prosecuted or defended, in whole or in part, in bad faith.

6. Whether issues of fact determinative of the validity of a party's claim or defense were reasonably in conflict.

7. The extent to which the party prevailed with respect to the amount and number of claims in controversy.

8. The amount and conditions of any offer of judgment or settlement as related to the amount and conditions of the ultimate relief granted by the court.

§ 12-351 Costs of compliance with subpoena for production of documentary evidence; payment by requesting party; definitions

A. All reasonable costs incurred in a civil action by a witness who is not a party to the action with respect to the production of documents pursuant to a subpoena for the production of documentary evidence shall be charged against the party requesting the subpoena if the witness submits an itemized statement to the requesting party stating the reproduction and clerical costs incurred by the witness.

B. If a subpoena is served to compel the production of documents and is subsequently withdrawn, quashed, modified or limited other than by the witness, the witness is entitled to reimbursement pursuant to subsection A of this section for all reasonable costs incurred in compliance with the subpoena to the time that the requesting party has notified the witness that the subpoena has been withdrawn, quashed, modified or limited.

C. The requesting party is not required to pay the reasonable costs before the documents are available for delivery pursuant to the subpoena. The witness may demand payment of the reasonable costs simultaneously with actual delivery of the subpoenaed documents.

D. The requesting party may petition the court in which the action is pending to recover from the witness all or a part of the costs paid to the witness or to reduce all or a part of the costs charged by the witness pursuant to this section if these costs were excessive.

E. If the personal attendance of the witness is not required, the witness may only receive payment pursuant to this section.

F. For the purposes of this section:

1. "Reasonable costs" means twenty-five cents for each page of standard reproduction of documents and the actual costs for reproduction of documents that require special processing plus the reasonable clerical costs incurred in locating and making the documents available billed at the rate of twenty-five dollars per hour per person.

2. "Requesting party" means a party requesting issuance of a subpoena for production of documentary evidence.

3. "Witness" means a person who is directed to produce documents by a subpoena for the production of documentary evidence.

§ 12-352 Medical malpractice judgments; payment of interest; definition

A. Notwithstanding any law to the contrary, in a contested action arising out of a medical malpractice claim the court shall award the payment of interest to the prevailing party at a rate that is equal to one percentage point above the federal postjudgment interest rate in effect on the date judgment is entered. Interest shall only accrue from and after the date judgment is entered until the judgment is paid. If the judgment is reversed or otherwise set aside, no interest shall be paid. The rate for calculating interest that accrues from and after the date judgment is entered shall be adjusted on June 30 and December 31 of each year to equal one percentage point above the federal postjudgment interest rate in effect on the date of adjustment until the judgment is paid. The interest rate specified for purposes of this section shall not exceed nine per cent. Interest shall accrue at each adjusted rate only until the next adjustment. The adjusted interest rate shall not be applied to any preceding six-month period.

B. For the purposes of this section, "federal postjudgment interest rate" means the interest rate established for the federal court system pursuant to 28 United States Code section 1961, as amended.

§ 12-353 Recovery of costs; attorney discipline investigations; definition

A. In an attorney discipline matter, if an attorney who is the subject of the charge prevails, in addition to any costs that are awarded by statute, the state bar of Arizona is responsible to the attorney for any attorney fees and court costs. Court costs include the cost of all stages of the investigation and discipline process and, if applicable, any court litigation and appeal.

B. For the purposes of this section, "attorney discipline matter" means any charge that is not dismissed by the state bar of Arizona before final disposition of the complaint by the presiding disciplinary judge or the supreme court.

Chapter 4 Venue and Change of Venue or Judge

Article 1 In General

§ 12-401 Venue

No person shall be sued out of the county in which such person resides, except:

1. When a defendant or all of several defendants reside without the state or their residence is unknown, the action may be brought in the county in which the plaintiff resides.

2. A married person may be sued in the county in which such person's spouse resides unless such spouse is living separate and apart from the defendant.

3. Transient persons may be sued in any county in which found.

4. Persons who have contracted a debt or obligation in one county and thereafter remove to another county may be sued in either county.

5. Persons who have contracted in writing to perform an obligation in one county may be sued in such county or where they reside.

6. Persons who have contracted a debt or obligation without the state may be sued in any county in which found.

7. When there are several defendants residing in different counties, action may be brought in the county in which any of the defendants reside.

8. Actions against personal representatives, administrators, guardians and conservators as such, to establish a money demand against the estate represented by them, shall be brought in the county in which the estate is being administered.

9. In cases of fraud and defalcation of public officers action may be brought in the county in which the fraud was committed or the defalcation occurred, or in which the defendant or any of several defendants reside or may be found.

10. When the foundation of the action is a crime, offense or trespass for which an action in damages may lie, the action may be brought in the county in which the crime, offense or trespass was committed or in the county in which the defendant or any of the several defendants reside or may be found, but any action for damages against the editor, proprietor or publisher of a newspaper or periodical published in the state for publication of an alleged libelous statement shall be brought in the county in which the principal publication office of the newspaper or periodical is located or in the county where the plaintiff resided at the time of publication of such statement.

11. Actions for the recovery of personal property may be brought in the county in which the property may be or in which the defendant or any of several defendants may be found.

12. Actions for the recovery of real property, for damages thereto, for rents, profits, use and occupation thereof, for partition thereof, to quiet title thereto, to remove a cloud or incumbrance on the title thereto, to foreclose mortgages and other liens thereon, to prevent or stay waste or injuries thereto, and all other actions concerning real property, shall be brought in the county in which the real property or a part thereof is located.

13. Actions for dissolution of marriage or legal separation shall be brought in the county in which a petitioner is residing at the time the action is filed.

14. Actions to enjoin execution of judgments or to stay proceedings in any action shall be brought in the county in which the judgment was rendered or the action is pending.

15. Actions against counties shall be brought in the county sued unless several counties are defendants, when it may be brought in any one of the counties.

16. Actions against public officers shall be brought in the county in which the officer, or one of several officers, holds office.

17. Actions on behalf of the state shall be brought in the county in which the seat of government is located.

18. Actions against railroad companies, insurance companies, telegraph or telephone companies, joint stock companies and other corporations may be brought in any county in which the cause of action, or a part thereof, arose, or in the county in which defendant has an agent or representative, owns property or conducts any business.

19. Where part of a river, watercourse, highway, road or street is the boundary line between two counties, the courts of each of the counties shall have concurrent jurisdiction in actions over such parts of the river, watercourse, highway, road or street.

§ 12-402 Venue of actions commenced after organization of new county

All actions and proceedings, civil and criminal, commenced after the organization of a new county or a county with changed boundaries, shall be begun and proceeded with therein if it would have been the proper county in which to institute the action or proceeding had it been organized before the cause for the proceedings arose.

§ 12-403 Transfer of action to new county

All actions and proceedings, civil and criminal, pending at the time of the organization of a new county or the changing of county boundaries, if such action or proceeding should have been instituted in the new or changed county had it been organized before the institution thereof, shall be transferred to the new or changed county, and filed, docketed and proceeded with in like courts, or before like officers of the new county. The original papers shall be sent and transferred to the new or changed county, together with authenticated transcripts of the proceedings had therein up to the time of the transfer, and the courts and officers of the new or changed county shall have the same jurisdiction in, and power over, the actions and proceedings as they would have, had they been originally begun in or before them. Any failure or defect in a transcript or the authentication thereof, or transfer, may be cured at any time.

§ 12-404 Action brought in wrong county; jurisdiction; application for transfer; hearing

A. If an action is not brought in the proper county, the court shall nevertheless have jurisdiction and may hear and determine the action unless the defendant, before expiration of the time allowed to answer, files with the clerk of the court in which the action is brought an affidavit of the defendant, his agent or attorney, stating that the county in which the action is brought is not the proper county and stating the county of the defendant's residence, and praying that the action be transferred to the proper county.

B. A copy of the affidavit shall be served upon plaintiff, and unless the affidavit is controverted under oath, within five days after service, the court shall order the action transferred to the proper county.

C. If the affidavit is controverted, the court shall hear the issue thus presented and shall order the action retained in the court in which it is brought, or transferred to the proper county.

§ 12-405 Change of venue by consent

A superior court may, upon written consent of the parties or their attorneys filed in an action, by an order entered on the minutes, transfer the action for trial to the superior court of another county.

§ 12-406 Change of venue for cause; grounds; bond; appeal

A. If either party to a civil action pending in the superior court, after answer has been filed, files an affidavit in the action alleging any of the grounds specified in subsection B and gives five days notice to the opposite party, the venue may be changed as provided in section 12-407.

B. Grounds which may be alleged as provided in subsection A for change of venue are:

1. That there exists in the county where the action is pending so great a prejudice against the party requesting a change of venue that he cannot obtain a fair and impartial trial.

2. That the convenience of witnesses and the ends of justice would be promoted by the change.

3. That there is other good and sufficient cause, to be determined by the court.

C. The party applying for the change of venue shall at the time of application file a bond to be approved by the judge of the court conditioned that he will pay all costs that may be adjudged against him in the action if the application is granted. The truth and sufficiency of the grounds shall be determined by the court, but a decision thereon refusing the change may be assigned as error on appeal.

§ 12-407 Order for change of venue; transmittal of papers; payment of fees and costs; effect of failure to pay

A. If a change of venue is ordered, the court shall transfer the action to the most convenient adjoining county, unless the parties agree to some other county in which case the court shall transfer the action to the agreed upon county.

B. The clerk shall promptly transmit the papers and transcript of the proceedings in the action to the clerk of the court to which the venue is changed. Except as provided in subsection E of this section, the party applying for the change of venue shall pay a transmittal fee established pursuant to section 12-284 within twenty days after the order directing the change. If payment is not timely made, the application for change of venue and the order for change of venue shall be deemed abandoned. If the change is abandoned, the action shall proceed as if the order for change of venue had not been made.

C. On payment by the party applying for a change of venue of the fee required on the filing of a complaint, the clerk of the court to which the action is transferred shall docket the action in its order. The action shall be tried or otherwise disposed of as if it had originated in that court.

D. Except as provided in subsection E of this section, failure to pay the fee as required in subsection C of this section within thirty days from the date the new court receives the file shall be deemed an abandonment. The clerk of the court to which the action was transferred shall promptly transmit all papers to the court in which the action originated, and the action shall be disposed of as if no change of venue had been granted.

E. If a change of venue is ordered pursuant to section 12-404, the plaintiff shall pay the transmittal fee established pursuant to section 12-284 within twenty days after the order directing the change and, within thirty days from the date the new court receives the file, the plaintiff shall pay to the clerk of the court to which the action is transferred the fee required on the filing of a complaint as provided in subsection C of this section. If the plaintiff fails to timely pay either the transmittal fee or the filing fee in the county to which the action is transferred, the court shall dismiss the case without prejudice.

§ 12-408 Procedure for change of venue when county is a party

A. In a civil action pending in the superior court in a county where the county is a party, the opposite party is entitled to a change of venue to some other county without making an affidavit therefor.

B. The party applying for the change of venue shall pay the cost thereof and give a bond to the opposite party as in other cases.

§ 12-409 Change of judge; grounds; affidavit

A. If either party to a civil action in a superior court files an affidavit alleging any of the grounds specified in subsection B, the judge shall at once transfer the action to another division of the court if there is more than one division, or shall request a judge of the superior court of another county to preside at the trial of the action.

B. Grounds which may be alleged as provided in subsection A for change of judge are:

1. That the judge has been engaged as counsel in the action prior to appointment or election as judge.

2. That the judge is otherwise interested in the action.

3. That the judge is of kin or related to either party to the action.

4. That the judge is a material witness in the action.

5. That the party filing the affidavit has cause to believe and does believe that on account of the bias, prejudice, or interest of the judge he cannot obtain a fair and impartial trial.

§ 12-410 Punishment for contempt for filing affidavit for change of judge prohibited

No judge or court shall punish for contempt any one making, filing or presenting the affidavit provided for by section 12-409, or any motion founded thereon.

§ 12-411 Limitation on changes of venue or judge; selection of county or judge

A. Not more than one change of venue or one change of judge may be granted in any action, but each party shall be heard to urge his objections to a county or judge in the first instance.

B. A change of venue or judge shall be to the most convenient county, or judge, to which the objections of the parties do not apply or are least applicable.

C. If the parties agree upon a county or judge, such county or judge shall be selected.

Chapter 5 Limitations of Actions

Article 1 General Provisions

§ 12-501 Effect of absence from state

When a person against whom there is a cause of action is without the state at the time the cause of action accrues or at any time during which the action might have been maintained, such action may be brought against the person after his return to the state. The time of such person's absence shall not be counted or taken as a part of the time limited by the provisions of this chapter.

§ 12-502 Effect of minority or insanity

If a person entitled to bring an action other than those set forth in article 2 of this chapter is at the time the cause of action accrues either under eighteen years of age or of unsound mind, the period of such disability shall not be deemed a portion of the period limited for commencement of the action. Such person shall have the same time after removal of the disability which is allowed to others.

§ 12-503 Tacking of disabilities prohibited

The period of limitation shall not be extended by the connection of one disability with another. When the law of limitation begins to run it shall continue to run notwithstanding a supervening disability of the party entitled to sue or liable to be sued.

§ 12-504 Saving of action timely commenced; defense or counterclaim; improper plaintiff; applicability

A. If an action is commenced within the time limited for the action, and the action is terminated in any manner other than by abatement, voluntary dismissal, dismissal for lack of prosecution or a final judgment on the merits, the plaintiff, or a successor or personal representative, may commence a new action for the same cause after the expiration of the time so limited and within six months after such termination. If an action timely commenced is terminated by abatement, voluntary dismissal by order of the court or dismissal for lack of prosecution, the court in its discretion may provide a period for commencement of a new action for the same cause, although the time otherwise limited for commencement has expired. Such period shall not exceed six months from the date of termination.

B. The provisions of subsection A apply to judgments on appeal. The date of issuance of the mandate by the appellate court constitutes the date of termination of the action for the purposes of computing the time limited for commencement of the new action.

C. If a new action on the same cause of action is commenced by the plaintiff, his successor or his personal representative, the assertion of any cause of action or defense by the defendant in the new action is timely if it was or could have been timely asserted in the prior action.

D. If an action timely commenced is dismissed because the named plaintiff is not the proper party to bring the action, the provisions of this section apply to an action subsequently brought by the proper party, provided that the dismissed action was sufficient to put the defendant on notice of the claim sought to be asserted.

E. The provisions of this section are applicable to actions terminated by orders of dismissal entered on or after the effective date of this section.

§ 12-505 Effect of statute changing limitation

A. An action barred by pre-existing law is not revived by amendment of such law enlarging the time in which such action may be commenced.

B. If an action is not barred by pre-existing law, the time fixed in an amendment of such law shall govern the limitation of the action.

C. If an amendment of pre-existing law shortens the time of limitation fixed in the pre-existing law so that an action under pre-existing law would be barred when the amendment takes effect, such action may be brought within one year from the time the new law takes effect, and not afterward.

§ 12-506 Action barred by foreign statute of limitation, bankruptcy or insolvency

A. No action shall be maintained against a person removing to this state from another state or foreign country to recover upon an action which was barred by the law of limitations of the state or country from which he migrated.

B. No action shall be brought to recover money from an immigrant who was released from its payment by the bankruptcy or insolvency laws of the state or country from which he migrated.

§ 12-507 Action against person removing to this state

No demand against a person who removes to this state, incurred prior to his removal, shall be barred by the statute of limitation until he has resided in this state one year, unless barred at the time of his removal to this state by the laws of the state or country from which he migrated.

§ 12-508 Effect of acknowledgment upon barred action

When an action is barred by limitation no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the action out of the operation of the law, unless the acknowledgment is in writing and signed by the party to be charged thereby.

§ 12-509 Presumption of death from five year absence; restoration of estate recovered upon presumption

A. A person absenting himself from the place of his last domicile for five years successively shall be presumed dead in any action wherein his death comes in question, unless proof is made that he was alive within that time.

B. Except as otherwise provided in section 14-3412, if in a subsequent action the person presumed, under subsection A, to be dead is proved to be living, the estate shall be restored to him and he may moreover demand and recover the rents and profits of the estate during the time that he has been deprived thereof, with interest.

§ 12-510 Exemption of state from limitations

Except as provided in section 12-529, the state shall not be barred by the limitations of actions prescribed in this chapter.

§ 12-511 Civil action arising from criminal conduct; definitions

A. Notwithstanding sections 12-505 and 12-542, if a defendant is charged by a criminal complaint or indictment the statute of limitations for any civil cause of action that is brought by a victim against the defendant for criminal conduct against the victim is extended for one year from the final disposition of the criminal proceedings, regardless of whether the defendant is convicted of criminal conduct against the victim.

B. There is no duty under a policy of insurance to defend or indemnify for any loss resulting from criminal conduct if the civil action is not commenced within the time period that would be applicable without any tolling or extension of the statute of limitations pursuant to this section.

C. This section does not toll or extend any statute of limitations applicable to a civil cause of action brought against the employer or former employer of any defendant who is subject to this section.

D. This section does not shorten any other applicable tolling provisions.

E. In any action brought pursuant to this section, the standard of proof is by the preponderance of the evidence.

F. This section applies to all cases in which the victim files a civil action within one year after the final disposition of the defendant's criminal proceedings, regardless of when the defendant committed the criminal conduct.

G. For the purposes of this section:

1. "Civil cause of action" means any civil claim that the victim could have brought against the defendant for criminal conduct committed against the victim regardless of whether any of these incidents was criminally prosecuted.

2. "Criminal conduct":

(a) Means any act, including all preparatory offenses, in violation of section 13-1103, 13-1104, 13-1105, 13-1202, 13-1203, 13-1204, 13-1208, 13-1304, 13-1404, 13-1405, 13-1406, 13-1410, 13-1417, 13-2314.04, 13-2915, 13-2916, 13-2921, 13-2921.01, 13-3019, 13-3552, 13-3553, 13-3554, 13-3601 or 13-3601.02.

(b) Includes any act involving sexual assault of a spouse that was committed before the effective date of this amendment to this section.

3. "Defendant" means a natural person.

4. "Final disposition" has the same meaning prescribed in sections 8-382 and 13-4401.

5. "Victim" has the same meaning prescribed in sections 8-382 and 13-4401.

§ 12-512 Punitive damages awards; illegal aliens

A person who is present in this state in violation of federal immigration law related to improper entry by an alien shall not be awarded punitive damages in any action in any court in this state.

§ 12-513 Civil action arising from unlawful mutilation; statute of limitation; treble damages

A. Notwithstanding sections 12-505, 12-511 and 12-542, an action for the recovery of damages based on the commission against the plaintiff of an act in violation of section 13-1214 or 13-3620 if the violation involved the failure to report unlawful mutilation shall be commenced not later than ten years from the date the plaintiff turns eighteen years of age or six years after the effective date of this section, whichever is longer.

B. If judgment is entered for the plaintiff, the court shall award the plaintiff treble damages, costs and reasonable attorney fees.

§ 12-514 Civil action arising from sexual conduct or sexual contact committed against a minor; failure to report; statute of limitations; definitions

A. Notwithstanding sections 12-505, 12-511 and 12-542, an action for the recovery of damages that is based on either of the following shall be commenced within twelve years after the plaintiff reaches eighteen years of age and not afterward:

1. An injury that a minor suffers as a result of another person's negligent or intentional act if that act is a cause of sexual conduct or sexual contact committed against the minor.

2. The failure to report pursuant to section 13-3620 sexual conduct or sexual contact committed against a minor.

B. For the purposes of this section:

1. "Person" means an individual, the United States, this state or a public or private corporation, local government unit, public agency, partnership, association, firm, trust or estate or any other legal entity.

2. "Sexual conduct" means sexual conduct as proscribed by section 13-1405.

3. "Sexual contact" has the same meaning prescribed in section 13-1401.

§ 12-515 Emergency declaration for a public health pandemic; immunity from liability; burden of proof; presumption; applicability; definition

A. If the governor declares a state of emergency for a public health pandemic pursuant to title 26, chapter 2, a person or provider that acts in good faith to protect a customer, student, tenant, volunteer, patient, guest or neighbor or the public from injury from the public health pandemic is not liable for damages in any civil action for any injury, death or loss to person or property that is based on a claim that the person or provider failed to protect the customer, student, tenant, volunteer, patient, guest, neighbor or public from the effects of the public health pandemic unless it is proven by clear and convincing evidence that the person or provider failed to act or acted and the failure to act or action was due to that person's or provider's wilful misconduct or gross negligence. A person or provider is presumed to have acted in good faith if the person or provider adopted and implemented reasonable policies related to the public health pandemic.

B. This section applies to all claims that are filed before or after September 29, 2021 for an act or omission by a person or provider that occurred on or after March 11, 2020 and that relates to a public health pandemic that is the subject of the state of emergency declared by the governor.

C. This section does not apply to any claim that is subject to title 23, chapter 6.

D. For the purposes of this section, "provider" means any of the following:

1. A person who furnishes consumer or business goods or services or entertainment.

2. An educational institution or district.

3. A school district or charter school.

4. A property owner, property manager or property lessor or lessee.

5. A nonprofit organization.

6. A religious institution.

7. This state or an agency or instrumentality of this state.

8. A local government or political subdivision of this state, including a department, agency or commission of a local government or political subdivision of this state.

9. A service provider as defined in section 36-551.

10. A health professional as defined in section 32-3201, including a person who is supervised by the health professional in the course of providing health care services.

11. A health care institution as defined in section 36-401.

§ 12-516 Emergency declaration for a public health pandemic; immunity from liability for health professionals or health care institutions; burden of proof; presumption; applicability; definitions

A. If the governor declares a state of emergency for a public health pandemic pursuant to title 26, chapter 2, a health professional or health care institution that acts in good faith is not liable for damages in any civil action for an injury or death that is alleged to be caused by the health professional's or health care institution's action or omission while providing health care services in support of this state's response to the state of emergency declared by the governor unless it is proven by clear and convincing evidence that the health professional or health care institution failed to act or acted and the failure to act or action was due to that health professional's or health care institution's wilful misconduct or gross negligence.

B. Subsection A of this section applies to any action or omission that is alleged to have occurred during a person's screening, assessment, diagnosis or treatment and that is related to the public health pandemic that is the subject of the state of emergency or any action or omission that occurs in the course of providing a person with health care services and that is unrelated to the public health pandemic that is the subject of the state of emergency if the health professional's or health care institution's action or omission was in good faith support of this state's response to the state of emergency, including any of the following:

1. Delaying or canceling a procedure that the health professional determined in good faith was a nonurgent or elective dental, medical or surgical procedure.

2. Providing nursing care or procedures.

3. Altering a person's diagnosis or treatment in response to an order, directive or guideline that is issued by the federal government, this state or a local government.

4. An act or omission undertaken by a health professional or health care institution because of a lack of staffing, facilities, equipment, supplies or other resources that are attributable to the state of emergency and that render the health professional or health care institution unable to provide the level or manner of care to a person that otherwise would have been required in the absence of the state of emergency.

C. A health professional or health care institution is presumed to have acted in good faith if the health professional or health care institution relied on and reasonably attempted to comply with applicable published guidance relating to the public health pandemic that was issued by a federal or state agency. This subsection does not prohibit a party from introducing any other evidence that proves the health professional or health care institution acted in good faith.

D. In the case of a claim against a nursing care institution or residential care institution, where the care in question did not directly relate to the public health pandemic, the burden is on the facility to prove that the act or omission was a direct result of having to provide care to patients needing treatment for the pandemic or due to limitations in equipment, supplies or staff caused by the pandemic.

E. This section applies to all claims that are filed before or after September 29, 2021 for an act or omission by a person that occurred on or after March 11, 2020 and that relates to a public health pandemic that is the subject of the state of emergency declared by the governor.

F. This section does not apply to any claim that is subject to title 23, chapter 6.

G. For the purposes of this section:

1. "Health care institution" has the same meaning prescribed in section 36-401 and includes an ambulance service as defined in section 36-2201.

2. "Health professional" has the same meaning prescribed in section 32-3201 and includes an ambulance attendant as defined in section 36-2201.

Article 2 Real Actions

§ 12-521 Definitions

A. In this article, unless the context otherwise requires:

1. "Adverse possession" means an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.

2. "Peaceable possession" means possession which is continuous, and not interrupted by an adverse action to recover the estate.

3. "Real property" includes mines and mining claims.

B. "Peaceable and adverse possession" need not be continued in the same person, but when held by different persons successively there must be a privity of estate between them.

§ 12-522 Real property claimed only by right of possession; two year limitation

When a party in possession claims real property by right of possession only, actions to recover possession from him shall be commenced within two years after the cause of action accrues and not afterward. In such actions defendant is not required to show title or color of title from and under the sovereignty of the soil as against the plaintiff who shows no better right.

§ 12-523 Real property in adverse possession under title or color of title; three year limitation

A. An action to recover real property from a person in peaceable and adverse possession under title or color of title shall be commenced within three years after the cause of action accrues, and not afterward.

B. "Title" means a regular chain of transfer from or under sovereignty of the soil. "Color of title" means a consecutive chain of such transfer down to the person in possession without being regular, as if one or more of the memorials or muniments is not recorded or not duly recorded or is only in writing, or such like defect as does not extend to or include the want of intrinsic fairness and honesty, or when the party in possession holds the real property by a land warrant or land scrip, with a chain of transfer down to him in possession.

§ 12-524 City lot claimed under recorded deed; five year limitation

An action to recover a lot located in a city or town from a person having a recorded deed therefor, who claims ownership and has paid the taxes thereon, shall be brought within five years after the cause of action accrues, and not afterward, provided that the person against whom the action is brought, by himself or his grantors, has claimed ownership thereof and has paid the taxes thereon for at least five consecutive years next preceding the commencement of such action.

§ 12-525 Real property in adverse possession and use under duly recorded deed with possessor paying taxes; five year limitation; exception

A. An action to recover real property from a person in peaceable and adverse possession, and cultivating, using or enjoying the property, and paying taxes thereon, and claiming under a deed or deeds duly recorded, shall be commenced within five years after the cause of action accrues, and not afterward.

B. This section shall not apply to anyone in possession of land, who in the absence of this section would claim title through a forged deed, and no one claiming under a forged deed or a deed executed under a forged power of attorney shall be allowed the benefits of this section.

§ 12-526 Real property in adverse possession and use by possessor; ten year limitation; limit of area; fixing of boundaries under duly recorded memorandum of title

A. A person who has a cause of action for recovery of any lands, tenements or hereditaments from a person having peaceable and adverse possession thereof, cultivating, using and enjoying such property, shall commence an action therefor within ten years after the cause of action accrues, and not afterward.

B. The peaceable and adverse possession referred to in subsection A shall not embrace more than one hundred and sixty acres, including the improvements or the number of acres actually enclosed if less than one hundred and sixty acres is so enclosed, but when such adverse possession is taken and held under some written memorandum of title other than a deed which fixes the boundaries of the possessor's claim and is duly recorded, such possession shall be construed to be coextensive with the boundaries specified in such instrument.

§ 12-527 Effect of limitation on title

When an action for recovery of real property is barred by any provision of this article, the person who pleads and is entitled to the bar shall be held to have full title precluding all claims.

§ 12-528 Persons under disability

A. If a person entitled to commence an action for recovery of real property, or to make any defense founded on the title to real property, is at the time the adverse possession commences or the title first descends under eighteen years of age or of unsound mind, the period of such disability shall not be deemed a portion of the time limited for bringing such action or making such defense. Such person shall have the same time, after the removal of the disability, which is allowed to others.

B. If a person entitled to commence an action for recovery of real property, or to make any defense founded on the title to real property, is at the time the adverse possession commences or the title first descends imprisoned, the period of such disability shall exist only until such imprisoned person discovers the right to bring the action or make the defense or with the exercise of reasonable diligence should have discovered the right to bring the action or make the defense, whichever occurs first, and such person shall have the same time after the disability ceases to exist which is allowed to others.

§ 12-529 Defenses available for certain actions by the state or person claiming through the state

Any action brought by this state or any person claiming through this state for lands, or for the rents or profits from lands, based on a claim of navigability of any watercourse, as defined in section 37-1101, except the Colorado river, is subject to all legal and equitable defenses which would be available if the claimant were not this state or a private person or political subdivision of this state claiming through this state.

§ 12-530 Home inspector liability; four year limitation

A homeowner who has a cause of action for damages against a home inspector who is certified pursuant to title 32, chapter 1 shall commence the action within four years after the cause of action accrues.

§ 12-531 Real estate appraiser liability; four-year limitation; exception; definition

A. A person who has a cause of action for damages against a real estate appraiser for malpractice, negligence, an error, a mistake, an omission or a breach in connection with a real estate appraisal or an appraisal-related service, whether based in contract or tort, shall commence the action before the earlier of:

1. The expiration of the applicable statute of limitations for the type of claim that is being pursued if the length of time after the report date to the expiration of the statute of limitations does not exceed four years. For the purposes of this paragraph, "report date" means the date on which the real estate appraisal giving rise to the action was completed or should have been completed.

2. Four years after the date on which the appraisal-related service giving rise to the action was performed or should have been performed.

B. The statute of limitations prescribed in subsection A of this section does not apply to a claim that alleges that an appraiser knowingly and intentionally committed fraud or knowingly and intentionally made a gross misrepresentation when performing a real estate appraisal or when providing an appraisal-related service.

C. For the purposes of this section, "real estate appraiser" means any of the following:

1. A state-licensed appraiser.

2. A state-certified residential appraiser.

3. A state-certified general appraiser.

4. A state-registered trainee appraiser.

5. Any agent, employee, employer or firm of a person who is listed in paragraph 1, 2, 3, or 4 of this subsection.

Article 3 Personal Actions

§ 12-541 Malicious prosecution; false imprisonment; libel or slander; seduction or breach of promise of marriage; breach of employment contract; wrongful termination; liability created by statute; one year limitation

There shall be commenced and prosecuted within one year after the cause of action accrues, and not afterward, the following actions:

1. For malicious prosecution, or for false imprisonment, or for injuries done to the character or reputation of another by libel or slander.

2. For damages for seduction or breach of promise of marriage.

3. For breach of an oral or written employment contract including contract actions based on employee handbooks or policy manuals that do not specify a time period in which to bring an action.

4. For damages for wrongful termination.

5. Upon a liability created by statute, other than a penalty or forfeiture.

§ 12-542 Injury to person; injury when death ensues; injury to property; conversion of property; forcible entry and forcible detainer; two year limitation

Except as provided in section 12-551 there shall be commenced and prosecuted within two years after the cause of action accrues, and not afterward, the following actions:

1. For injuries done to the person of another including causes of action for medical malpractice as defined in section 12-561.

2. For injuries done to the person of another when death ensues from such injuries, which action shall be considered as accruing at the death of the party injured.

3. For trespass for injury done to the estate or the property of another.

4. For taking or carrying away the goods and chattels of another.

5. For detaining the personal property of another and for converting such property to one's own use.

6. For forcible entry or forcible detainer, which action shall be considered as accruing at the commencement of the forcible entry or detainer.

§ 12-543 Oral debt; stated or open account; relief on ground of fraud or mistake; three year limitation

There shall be commenced and prosecuted within three years after the cause of action accrues, and not afterward, the following actions:

1. For debt where the indebtedness is not evidenced by a contract in writing.

2. Upon stated or open accounts other than such mutual and current accounts as concern the trade of merchandise between merchant and merchant, their factors or agents, but no item of a stated or open account shall be barred so long as any item thereof has been incurred within three years immediately prior to the bringing of an action thereon.

3. For relief on the ground of fraud or mistake, which cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.

§ 12-544 Bond to convey realty; partnership account; account between merchants; judgment or instrument given or made without the state; four year limitation

There shall be commenced and prosecuted within four years after the cause of action accrues, and not afterward, the following actions:

1. For the penalty or for damages on the penal clause of a bond to convey real property.

2. By one partner against his copartner for a settlement of the partnership account, or upon mutual and current accounts concerning the trade of merchandise between merchant and merchant, their factors or agents, and the cause of action shall be considered as having accrued upon a cessation of the dealings in which they were interested together.

3. Upon a judgment or decree of a court rendered without the state, or upon an instrument in writing executed without the state. This paragraph does not apply to a judgment for support, as defined in section 25-500, and to associated costs and attorney fees.

4. An action arising under the provisions of title 47, chapter 2, for breach of any contract of sale, which action shall be governed by section 47-2725, notwithstanding any other provision of this section or of section 12-543 or 12-548.

§ 12-545 Bond of personal representative or guardian; four year limitation

An action on the bond of an executor, administrator or guardian shall be commenced and prosecuted within four years after the death, resignation, removal or discharge of such executor, administrator or guardian, and not afterward.

§ 12-546 Specific performance of contract to convey realty; four year limitation

An action for specific performance of a contract for the conveyance of real property shall be commenced within four years after the cause of action accrues, and not afterward.

§ 12-547 Failure to make return on execution; five year limitation

When execution has issued and no return is made thereon, the party in whose favor the execution was issued may proceed against the sheriff or other officer and his sureties for not making return within five years from the day on which it was returnable, and not afterward.

§ 12-548 Contract in writing for debt; six year limitation; choice of law

A. An action for debt shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward, if the indebtedness is evidenced by or founded on either of the following:

1. A contract in writing that is executed in this state.

2. A credit card as defined in section 13-2101, paragraph 3, subdivision (a).

B. If there is a conflict between another jurisdiction and this state relating to the statute of limitations for a debt action as described in subsection A of this section, this section applies.

§ 12-549 Foreign judgment

An action upon a judgment or decree rendered in another state or foreign country shall be barred if by the laws of such state or country such action would there be barred and the judgment or decree is incapable of being otherwise enforced there.

§ 12-550 General limitation

Actions other than for recovery of real property for which no limitation is otherwise prescribed shall be brought within four years after the cause of action accrues, and not afterward.

§ 12-551 Product liability

A product liability action as defined in section 12-681 shall be commenced and prosecuted within the period prescribed in section 12-542, except that no product liability action may be commenced and prosecuted if the cause of action accrues more than twelve years after the product was first sold for use or consumption, unless the cause of action is based upon the negligence of the manufacturer or seller or a breach of an express warranty provided by the manufacturer or seller.

§ 12-552 Actions involving development of real property design, engineering and construction of improvements

A. Notwithstanding any other statute, an action or arbitration based in contract may not be instituted or maintained against a person who develops or develops and sells real property, or performs or furnishes the design, specifications, surveying, planning, supervision, testing, construction or observation of construction of an improvement to real property more than eight years after substantial completion of the improvement to real property.

B. Notwithstanding any other statute, a municipality or a county may not institute or maintain an action or arbitration against a person who develops or develops and sells real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, construction or observation of construction of an improvement to real property that is dedicated to the municipality or county more than eight years after the improvement to real property has been accepted by the municipality or county for ownership, operation and maintenance if the action or arbitration is based on either:

1. A municipal or county code, ordinance or other legal requirement.

2. A permit that is required as a condition of development.

C. The limitations of subsection B of this section do not apply to an action or arbitration that is based on a claim of a wilful, reckless or concealed violation of a municipal or county requirement.

D. Subsection B of this section does not limit any immunity or defense that is available to a municipality or county pursuant to chapter 7, article 2 of this title.

E. Notwithstanding subsection A or B of this section, in the case of injury to real property or an improvement to real property, if the injury occurred during the eighth year after the substantial completion or, in the case of a latent defect, was not discovered until the eighth year after substantial completion, an action to recover damages for injury to the real property may be brought within one year after the date on which the injury to real property or an improvement to real property occurred or a latent defect was discovered, but an action may not be brought more than nine years after the substantial completion of the improvement.

F. The limitations in subsections A, B and E of this section include any action based on implied warranty arising out of the contract or the construction, including implied warranties of habitability, fitness or workmanship.

G. This section does not apply to actions for personal injury or death or shorten the period of warranty provided in an express written warranty.

H. For the purposes of subsections A, E and F of this section, an improvement to real property is considered substantially complete when any of the following first occurs:

1. It is first used by the owner or occupant of the improvement.

2. It is first available for use after having been completed according to the contract or agreement covering the improvement, including agreed changes to the contract or agreement.

3. Final inspection, if required, by the governmental body that issued the building permit for the improvement.

I. In this section an action based in contract is an action based on a written real estate contract, sales agreement, construction agreement, conveyance or written agreement for construction or for the services set forth in subsection A of this section. This section does not extend the period prescribed by the laws of this state for bringing any action. If a shorter period of limitation is prescribed for a specific action, the shorter period governs.

J. With respect to an improvement to real property that was substantially complete on or before September 15, 1989, the eight and nine-year periods established in subsections A and E of this section shall begin to run on September 15, 1989. Notwithstanding the provisions of subsection H of this section and section 12-505, subsection A, this subsection applies to claims that accrued before May 14, 1992.

§ 12-553 Limited liability of equine owners and owners of equine facilities; exception; definitions

A. An equine owner or an agent of an equine owner who regardless of consideration allows another person to take control of an equine is not liable for an injury to or the death of the person if:

1. The person has taken control of the equine from the owner or agent when the injury or death occurs.

2. The person or the parent or legal guardian of the person if the person is under eighteen years of age has signed a release before taking control of the equine.

3. The owner or agent has properly installed suitable tack or equipment or the person has personally tacked the equine with tack the person owned, leased or borrowed. If the person has personally tacked the equine, the person assumes full responsibility for the suitability, installation and condition of the tack.

4. The owner or agent assigns the person to a suitable equine based on a reasonable interpretation of the person's representation of his skills, health and experience with and knowledge of equines.

B. Subsection A does not apply to an equine owner or agent of the equine owner who is grossly negligent or commits wilful, wanton or intentional acts or omissions.

C. An owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine with or without the owner's permission is not liable for injury to or death of the equine or the rider or handler.

D. Subsection C does not apply to an owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine if either of the following applies:

1. The owner, lessor or agent knows or should know that a hazardous condition exists and the owner, lessor or agent fails to disclose the hazardous condition to a rider or handler of an equine.

2. The owner, lessor or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.

E. As used in this section:

1. "Equine" means a horse, pony, mule, donkey or ass.

2. "Release" means a document that a person signs before taking control of an equine from the owner or owner's agent and that acknowledges that the person is aware of the inherent risks associated with equine activities, is willing and able to accept full responsibility for his own safety and welfare and releases the equine owner or agent from liability unless the equine owner or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.

§ 12-554 Limited liability; baseball facilities; definitions

A. An owner is not liable for injuries to spectators who are struck by baseballs, baseball bats or other equipment used by players during a baseball game unless the owner either:

1. Does not provide protective seating that is reasonably sufficient to satisfy expected requests.

2. Intentionally injures a spectator.

B. This section does not prevent or limit the liability of an owner who fails to maintain the premises of the baseball stadium in a reasonably safe condition.

C. This section does not create an independent duty of care for a registered design professional or licensed contractor.

D. A registered design professional or a licensed contractor who is involved in the design, construction or operation of the facility is not liable for injuries to spectators who are struck by baseballs, baseball bats or other equipment used by players during a baseball game unless a registered design professional or a licensed contractor either:

1. Does not provide for protective seating that is reasonably sufficient to satisfy expected requests.

2. Intentionally injures a spectator.

E. This section does not prevent or limit liability of a registered design professional or a licensed contractor who fails to design, construct or operate the premises of the baseball stadium in a reasonably safe condition or manner.

F. As used in this section:

1. "Baseball game" means an amateur or professional baseball game, whether for exhibition or competition. Baseball game includes pregame and postgame activities regardless of the time of day when the game is played.

2. "Owner" means a person, city, town, county, special district, limited liability company, school district, community college district, college or university that is in lawful possession and control of a baseball team or facility in which baseball games are played. Owner includes an employee or agent of the owner.

3. "Protective seating" means either:

(a) An area in which a screen to prevent a ball or bat from entering the seating area exists between the spectator and the playing field.

(b) An area that is reasonably safe for the avoidance of injuries from baseballs, baseball bats or other equipment used by players during a baseball game.

4. "Spectator" means a person who is present at a baseball game for the purpose of observing the game, whether or not the person pays an admission fee or is compensated to observe the game.

§ 12-555 Uninsured and underinsured motorist coverage; claims; time limits

A. An insurer is not liable for uninsured motorist coverage benefits unless the person making the claim gives written notice to the insurer of the person's intent to pursue the claim against the uninsured motorist portion of a motor vehicle policy within three years after the date of the accident that caused the bodily injury, except that a person may make an uninsured motorist claim within three years after the earliest of the following:

1. The date the person knew that the tortfeasor was uninsured.

2. The date the person knows or should have known that coverage was denied by the tortfeasor's insurer.

3. The date the person knows or should have known of the insolvency of the tortfeasor's insurer.

B. An insurer is not liable for underinsured motorist coverage benefits unless the person making the claim gives written notice to the insurer of the person's intent to pursue the claim against the underinsured motorist portion of a motor vehicle policy within three years after the date of the accident that caused the bodily injury and the person has made a claim with the tortfeasor's insurer or filed an action against the tortfeasor within the time limits prescribed by section 12-542 or within the corresponding limitation period provided under the law of the location where the accident occurred. Notwithstanding this subsection, a person may make an underinsured motorist claim within three years after the date the person knows or should have known that the tortfeasor has insufficient liability insurance to cover the person's injuries.

C. If settlement of an uninsured or underinsured motorist claim is not reached:

1. The insurer shall provide written notice to the person at the last known address on record with the insurer by first class mail, within two years after receiving the written notice prescribed in subsection A or B of this section, that the person must request arbitration or file suit pursuant to the terms of the insurance contract within three years after providing the written notice prescribed in subsection A or B of this section or the insurer is not liable for uninsured motorist coverage benefits or underinsured motorist coverage benefits.

2. A person shall request arbitration or file suit pursuant to the terms of the insurance contract within three years after providing the written notice prescribed in subsection A or B of this section. If the person does not comply with this paragraph, the insurer is not liable for uninsured motorist coverage benefits or underinsured motorist coverage benefits.

D. An insurer shall bring an action for subrogation and reimbursement pursuant to section 20-259.01 within two years after the date the insurer first makes payment to the insured under the uninsured motorist coverage.

§ 12-556 Limited liability; closed-course motor sport facility owners, lessors and operators; definitions

A. A person who operates a closed-course motor sport facility may require a nongeneral spectator to sign a motor sport liability release form as a condition of admission into any nongeneral spectator area of the facility. A person or entity that owns, leases or operates a closed-course motor sport facility or that sponsors the motor sport event is not liable for an injury to or the death of a nongeneral spectator, unless the injury or death is a direct result of intentional misconduct or gross negligence, if the nongeneral spectator both:

1. Signed a motor sport liability release form.

2. Was injured within a nongeneral spectator area during the period of time covered by the motor sport liability release form.

B. A motor sport liability release form shall be in at least eight point type. More than one person may sign a motor sport liability release form if the release form appears on each page or side of a page that is signed.

C. For the purposes of this section:

1. "Closed-course motor sport facility" means a closed-course speedway or racetrack that is designed and intended for motor vehicle competition, exhibitions of speed or other forms of recreation involving the use of motor vehicles.

2. "Motor vehicle" means an automobile, motorcycle or other vehicle that is propelled by power, other than muscular power, that is used to transport persons and that operates within the confines of a closed-course motor sport track.

3. "Nongeneral spectator" means an event participant or attendee who seeks admission into the nongeneral spectator area.

4. "Nongeneral spectator area" means a posted area within a closed-course motor sport facility to which all of the following apply:

(a) Admission to the area is conditioned on signing a motor sport liability release form.

(b) The area is intended for event participants.

(c) The area excludes the general spectator area. For the purposes of this subdivision, "general Spectator area" means an area within a closed-course motor sport facility that is open to the general public, whether or not admission is charged, and to which the general public has unrestricted access, including grandstands and other general admission seating or viewing areas.

5. "Posted" means a nongeneral spectator area:

(a) That is enclosed by a fence or wall at least six feet high in all areas where nonparticipants may gain entry and at least three feet high in any other area.

(b) In which signs with lettering at least four inches high reading "nongeneral spectator area" are displayed not more than five hundred feet from the entrance to the nongeneral spectator area and at each entrance to the nongeneral spectator area.

6. "Release" means a document that a nongeneral spectator signs before entering a nongeneral spectator area in a closed-course motor sport facility and that acknowledges that the nongeneral spectator is aware of the inherent risks associated with the nongeneral spectator's activities, is willing and able to accept full responsibility for the spectator's own safety and welfare and releases the owner or entity that owns, leases or operates the facility or that sponsors the motor sport event from liability pursuant to subsection A.

§ 12-557 Possessors of land; limited liability for trespasser harm

A. A possessor of real property, including an owner, easement holder, lessee, renter or other occupant, does not owe a duty of care to a trespasser except to refrain from causing intentional, wilful or wanton injury.

B. This section does not establish or increase the liability of any possessor of real property and does not affect any immunities from or defenses to liability established by statute or available at common law to which a possessor of real property may be entitled.

§ 12-558 Liability release agreement; space flight activities; definitions

A. A space flight entity may enter into a liability release agreement with a space flight participant or crew to limit the entity's civil liability for a space flight participant's or crew's injury that arises out of space flight activities.

B. The liability release agreement is valid and enforceable.

C. For the purposes of this section:

1. "Crew" means an employee of a space flight entity or a space flight entity contractor, licensee or agent who performs space flight activities.

2. "Launch" means a placement or attempted placement of a launch vehicle and any spacecraft, payload, crew or space flight participant in a flight path targeted to exceed an altitude of sixty thousand feet, a suborbital trajectory, earth orbit or outer space, including activities involved in the preparation of a launch vehicle or spacecraft for launch.

3. "Launch vehicle" means a vehicle and its stages or components that are designed to operate in or place spacecraft, if any, in a suborbital trajectory, earth orbit or outer space.

4. "Reentry" means a return or attempted return to earth of a launch vehicle, a reentry vehicle and the spacecraft, payload, crew or space flight participant from a suborbital trajectory, earth orbit or outer space and includes activities involved in the recovery of a launch vehicle, reentry vehicle or spacecraft.

5. "Spacecraft" means any object and its components that are designed to be launched for operations in a suborbital trajectory, in earth orbit or in outer space and includes a satellite, a payload, an object carrying crew or a space flight participant and any subcomponents of the launch vehicle or reentry vehicle that are specifically designed or adapted for that object.

6. "Space flight activities" means activities and training in any phase of preparing for and undertaking space flight, including:

(a) The research, development, testing or manufacturing of a launch vehicle, reentry vehicle or spacecraft.

(b) The preparation of a launch vehicle, reentry vehicle, payload, spacecraft, crew or space flight participant for launch, space flight and reentry.

(c) The conduct of the launch.

(d) Conduct occurring between the launch and reentry.

(e) The preparation of a launch vehicle, reentry vehicle, payload, spacecraft, crew or space flight participant for reentry.

(f) The conduct of reentry and descent.

(g) The conduct of the landing.

(h) The conduct of postlanding recovery of a launch vehicle, reentry vehicle, payload, spacecraft, crew or space flight participant.

7. "Space flight entity" means a person that conducts space flight activities and that has obtained the appropriate federal aviation administration license or other authorization, including safety approval and a payload determination, and includes any of the following:

(a) A manufacturer or supplier of components, services, spacecrafts, launch vehicles or reentry vehicles used by the entity and reviewed by the federal aviation administration as part of issuing the license or other authorization.

(b) An employee, officer, director, owner, stockholder, member, manager, advisor or partner of the entity, manufacturer or supplier.

(c) An owner or lessor of real property where space flight activities are conducted, including a municipality, county or political subdivision of this state with a contractual relationship with a space flight entity.

(d) A municipality, county, economic development organization or other political subdivision in the territory or extraterritorial jurisdiction in which space flight activities are conducted.

8. "Space flight participant" means an individual who is not crew and who participates in space flight activities.

9. "Space flight participant's injury" means an injury sustained by a space flight participant and includes bodily injury, emotional distress, death, disability, property damage or any other loss arising from the individual's participation in space flight activities.

§ 12-558.01 Actions related to the lawful discharge of a firearm; burden of proof; attorney fees and costs

A. Notwithstanding any other law, the otherwise lawful discharge of a firearm or air gun or the use of archery equipment may not be enjoined except by:

1. An action maintained by the attorney general to abate a public nuisance pursuant to section 13-2917.

2. A private nuisance cause of action or an action based on negligence that is filed by a person who is occupying a permanent residence that is located within one-fourth mile of the location of the discharge or use.

B. The burden of proof is clear and convincing evidence in an action that is filed pursuant to subsection A of this section or in an action for damages that is based on negligence in the otherwise lawful discharge of a firearm or air gun or the use of archery equipment on a private lot or parcel of land that is not open to the public on a commercial or membership basis and that is filed by a person who was not lawfully present at the same private lot or parcel of land at the time that the alleged discharge occurred.

C. The prevailing party in an action filed pursuant to this section, except an officer or entity of this state, shall recover reasonable attorney fees and costs.

D. In an action alleging damages from the loss of property value due to the otherwise lawful discharge of a firearm or air gun or the use of archery equipment on a private lot or parcel of land that belongs to another person, the lost value shall be proven by clear and convincing evidence.

§ 12-558.02 Limited liability; removing minor or confined animal from motor vehicle; definition

A. A person who uses reasonable force to enter a locked and unattended motor vehicle to remove a minor or confined domestic animal is not liable for any damages in a civil action if all of the following apply:

1. The person has a good faith belief that the minor or confined domestic animal is in imminent danger of suffering physical injury or death unless the minor or domestic animal is removed from the motor vehicle.

2. The person determines that the motor vehicle is locked or there is no reasonable manner in which the person can remove the minor or domestic animal from the vehicle.

3. Before entering the motor vehicle, the person notifies a peace officer, emergency medical service provider or first responder or an animal control enforcement agency or deputy, if appropriate, of the minor or confined domestic animal.

4. The person does not use more force than is necessary under the circumstances to enter the motor vehicle and remove the minor or domestic animal from the vehicle.

5. The person remains with the minor or domestic animal until the person who is contacted as prescribed in paragraph 3 of this subsection arrives at the motor vehicle.

B. A person is not immune from civil liability if the person fails to abide by any of the provisions of subsection A of this section and commits any unnecessary or malicious damage to the motor vehicle.

C. For the purposes of this section, "domestic animal" means a dog, a cat or another animal that is domesticated and kept as a household pet.

§ 12-558.03 Limited liability; employer hiring or contracting with ex-offenders; exclusions; definitions

A. An employer is not liable for hiring an employee or contracting with an independent contractor who has previously been convicted of a criminal offense.

B. In a negligent hiring action that is filed against an employer for the acts of an employee or independent contractor and that is based on a theory of liability other than as described in subsection A of this section, the fact that the employee or independent contractor was previously convicted of a criminal offense before the employee's employment or independent contractor's contractual obligation began with the employer may not be introduced into evidence.

C. This section does not preclude an existing cause of action for the failure of an employer to provide adequate supervision of an employee or independent contractor, except that the fact that the employee or independent contractor has previously been convicted of a criminal offense may be introduced into evidence if the employer knew of the conviction or was grossly negligent in not knowing of the conviction and the conviction was directly related to the nature of the employee's or independent contractor's work and the conduct that gave rise to the alleged injury that is the basis of the cause of action.

D. The protections provided to an employer pursuant to this section do not apply in a cause of action based on any of the following:

1. The misuse of monies or property of a person other than the employer by an employee or independent contractor if, on the date that the employee was hired or the independent contractor entered into a contract with the employer, the employee or independent contractor had previously been convicted of an offense that includes fraud or the misuse of monies or property as an element of the offense, and it was foreseeable that the position for which the employee was hired or the independent contractor entered into a contract with the employer would involve discharging a fiduciary responsibility in the management of monies or property.

2. The misappropriation of monies by an employee or independent contractor if the employee was hired or the independent contractor entered into a contract with the employer as an attorney and, on the date that the employee was hired or the independent contractor entered into a contract with the employer, the employee or independent contractor had previously been convicted of an offense that includes fraud or the misuse of monies or property as an element of the offense.

3. A violent offense or the improper use of excessive force by an employee or independent contractor if the employee was hired or the independent contractor entered into a contract with the employer as a law enforcement officer or security guard.

E. This section does not establish a cause of action for the negligent hiring of or contracting with an ex-offender in factual situations that are not specifically included in this section. In making a determination whether liability exists in a cause of action, the court may not presume that, because facts are not specifically included in this section, there is a legislative intent to extend liability in such cases where it is not already established.

F. For the purposes of this section:

1. "Criminal offense" or "offense" means any criminal offense except violent offenses and sexual offenses.

2. "Employer" means an employer, general contractor, premises owner or other third party.

Article 4 Successor Asbestos-Related Liability

§ 12-559 Definitions

In this article, unless the context otherwise requires:

1. "Asbestos claim" means any claim, wherever or whenever made, for damages, losses, indemnification, contribution or other relief arising out of, based on or in any way related to asbestos including:

(a) The health effects of exposure to asbestos including a claim for:

(i) Personal injury or death.

(ii) Mental or emotional injury.

(iii) Risk of disease or other injury.

(iv) The costs of medical monitoring or surveillance.

(b) Any claim made by or on behalf of any person exposed to asbestos or a representative or a spouse, parent, child or other relative of the person.

(c) Any claim for damage or loss caused by the installation, presence, or removal of asbestos.

2. "Corporation" means a corporation for profit, including a domestic corporation organized under the laws of this state or a foreign corporation organized under laws other than the laws of this state.

3. "Successor" means a corporation that assumes or incurs or has assumed or incurred successor asbestos-related liabilities, that is a successor and that became a successor before January 1, 1972 or is any of that successor corporation's successors.

4. "Successor asbestos-related liabilities" means any liabilities, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or nonaccrued, liquidated or nonliquidated or due or to become due, that are related in any way to asbestos claims and that were assumed or incurred by a corporation as a result of or in connection with a merger or consolidation, or the plan of merger or consolidation related to the merger or consolidation with or into another corporation, or that are related in any way to asbestos claims based on the exercise of control or the ownership of stock of the corporation before the merger or consolidation. Successor asbestos-related liabilities includes liabilities that, after the time of the merger or consolidation for which the fair market value of total gross assets is determined pursuant to section 12-559.02, were or are paid or otherwise discharged, or committed to be paid or otherwise discharged, by or on behalf of the corporation, by a successor of the corporation or by or on behalf of a transferor, in connection with settlements, judgments or other discharges in this state or another jurisdiction.

5. "Transferor" means a corporation from which successor asbestos-related liabilities are or were assumed or incurred.

§ 12-559.01 Asbestos-related actions; successor corporation liability; applicability

A. Except as provided in subsection B of this section, the cumulative successor asbestos-related liabilities of a successor corporation are limited to the fair market value of the total gross assets of the transferor determined as of the time of the merger or consolidation. The successor corporation does not have responsibility for successor asbestos-related liabilities in excess of this limitation.

B. If the transferor assumed or incurred successor asbestos-related liabilities in connection with a prior merger or consolidation with a prior transferor, the fair market value of the total assets of the prior transferor determined as of the time of the earlier merger or consolidation shall be substituted for the limitation under subsection A of this section to determine the limitation of liability of a successor corporation.

C. This section does not apply to any of the following:

1. Workers' compensation benefits paid by or on behalf of an employer to an employee pursuant to title 23, chapter 6 or a comparable workers' compensation law of another jurisdiction.

2. Any claim against a corporation that does not constitute a successor asbestos-related liability.

3. Any obligation under the national labor relations act or under any collective bargaining agreement.

4. A successor that, after a merger or consolidation, continued in the business of mining asbestos or in the business of selling or distributing asbestos fibers or in the business of manufacturing, distributing, removing or installing asbestos-containing products that were the same or substantially the same as those products previously manufactured, distributed, removed or installed by the transferor.

§ 12-559.02 Establishing the fair market value of total gross assets

A. To determine the limitation pursuant to section 12-559.01, a successor corporation may establish the fair market value of total gross assets through any method reasonable under the circumstances, including either of the following:

1. By reference to the going concern value of the assets or to the purchase price attributable to or paid for the assets in an arms length transaction.

2. In the absence of other readily available information from which the fair market value can be determined, by reference to the value of the assets recorded on a balance sheet.

B. Total gross assets include intangible assets.

C. To the extent total gross assets include any liability insurance that was issued to the transferor whose assets are being valued for the purposes of this section, the applicability, terms, conditions and limits of that insurance are not affected by this section, and this section does not affect the rights and obligations of an insurer, transferor or successor under any insurance contract and any related agreements, including preenactment settlements resolving coverage-related disputes, or the rights of an insurer to seek payment for applicable deductibles, retrospective premiums or self-insured retentions or to seek contribution from a successor for uninsured or self-insured periods or periods where insurance is uncollectible or otherwise unavailable. Notwithstanding this subsection, to the extent that total gross assets include liability insurance, a settlement of a dispute concerning that liability insurance coverage that is entered into by a transferor or successor with the insurers of the transferor before the effective date of this section determines the total coverage of that liability insurance to be included in the calculation of the transferor's total gross assets.

§ 12-559.03 Adjustment of the fair market value of total gross assets

A. Except as provided in subsections B, C and D of this section, the fair market value of total gross assets at the time of the merger or consolidation shall increase annually at a rate equal to the sum of the following:

1. The prime rate as listed in the first edition of the wall street journal published for each calendar year since the merger or consolidation, unless the prime rate is not published in that edition of the wall street journal, in which case any reasonable determination of the prime rate on the first day of the year may be used.

2. One per cent.

B. The rate found in subsection A of this section shall not be compounded.

C. The adjustment of the fair market value of total gross assets shall continue as provided in subsection A of this section until the date the adjusted value is first exceeded by the cumulative amounts of successor asbestos-related liabilities that are paid or committed to be paid by or on behalf of the successor corporation or a predecessor or by or on behalf of a transferor after the time of the merger or consolidation for which the fair market value of total gross assets is determined.

D. No adjustment of the fair market value of total gross assets shall be applied to any liability insurance that may be included in the total gross assets pursuant to section 12-559.02, subsection C.

Chapter 5.1 Actions Relating to Health Care

Article 1 General Provisions

§ 12-561 Definitions

In this chapter, unless the context otherwise requires:

1. "Licensed health care provider" means both:

(a) A person, corporation or institution licensed or certified by the state to provide health care, medical services, nursing services or other health-related services and includes the officers, employees and agents thereof working under the supervision of such person, corporation or institution in providing such health care, medical services, nursing services or other health-related services.

(b) A federally licensed, regulated or registered blood bank, blood center or plasma center collecting, processing or distributing whole human blood, blood components, plasma, blood fractions or blood derivatives for use by a licensed health care provider and includes the officers, employees and agents working under the supervision of the blood bank, blood center or plasma center.

2. "Medical malpractice action" or "cause of action for medical malpractice" means an action for injury or death against a licensed health care provider based upon such provider's alleged negligence, misconduct, errors or omissions, or breach of contract in the rendering of health care, medical services, nursing services or other health-related services or for the rendering of such health care, medical services, nursing services or other health-related services, without express or implied consent including an action based upon the alleged negligence, misconduct, errors or omissions or breach of contract in collecting, processing or distributing whole human blood, blood components, plasma, blood fractions or blood derivatives.

§ 12-562 Medical malpractice actions; grounds

A. A medical malpractice action shall not be brought against a licensed health care provider except upon the grounds set forth in section 12-561.

B. A medical malpractice action brought against a licensed health care provider shall not be based upon assault and battery.

C. A medical malpractice action based upon breach of contract for professional services shall not be brought unless such contract is in writing.

D. A medical malpractice action brought against a physician licensed pursuant to title 32, chapter 13 or 17, a podiatrist licensed pursuant to title 32, chapter 7, a registered nurse practitioner licensed pursuant to title 32, chapter 15 or a physician assistant licensed pursuant to title 32, chapter 25 regarding services provided within that person's scope of practice shall not be based on the neglect, abuse or exploitation of a vulnerable adult, except as provided in section 46-455.

§ 12-563 Necessary elements of proof

Both of the following shall be necessary elements of proof that injury resulted from the failure of a health care provider to follow the accepted standard of care:

1. The health care provider failed to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances.

2. Such failure was a proximate cause of the injury.

§ 12-564 Qualified immunity; students; duty of care

A. A student who is in an educational or training program of a certified, accredited or state approved postsecondary institution that prepares students for licensing as a health care provider is not liable in a medical malpractice action for injury that occurs during or as a result of care that is provided while the student is in the program and under the supervision of a licensed health care provider unless gross negligence is established by clear and convincing evidence.

B. A student who is in an educational or training program of a certified, accredited or state approved postsecondary institution that prepares students for licensing as a health care provider does not owe an independent duty of care to a patient if the student is participating in patient care under the supervision of a licensed health care provider.

C. This section does not eliminate any responsibility of the supervising licensed health care provider for the student's actions.

§ 12-565 Health care actions; collateral source evidence

A. In any medical malpractice action against a licensed health care provider, the defendant may introduce evidence of any amount or other benefit which is or will be payable as a benefit to the plaintiff as a result of the injury or death pursuant to the United States social security act, any state or federal workers' compensation act, any disability, health, sickness, life, income-disability or accident insurance that provides health benefits or income-disability coverage and any other contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of income-disability or medical, hospital, dental or other health care services to establish that any cost, expense, or loss claimed by the plaintiff as a result of the injury or death is subject to reimbursement or indemnification from such collateral sources. Where the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure his right to any such benefits or that recovery from the defendant is subject to a lien or that a provider of such collateral benefits has a statutory right of recovery against the plaintiff as reimbursement for such benefits or that the provider of such benefits has a right of subrogation to the rights of the plaintiff in the medical malpractice action.

B. Evidence introduced pursuant to this section shall be admissible for the purpose of considering the damages claimed by the plaintiff and shall be accorded such weight as the trier of the facts chooses to give it.

C. Unless otherwise expressly permitted to do so by statute, no provider of collateral benefits, as described in subsection A, shall recover any amount against the plaintiff as reimbursement for such benefits nor shall such provider be subrogated to the rights of the plaintiff.

§ 12-566 Health care actions; complaint; specific amount of damages not to be stated

In any medical malpractice action against a licensed health care provider, no dollar amount or figure shall be included in the complaint, but the complaint may include a statement reciting that the minimum jurisdictional amount established for filing the action is satisfied.

§ 12-567 Civil fertility fraud; liability; statute of limitations; definitions

A. A woman who gives birth to a child after being treated for infertility by a physician, the spouse of the woman, the surviving spouse of the woman or the child born as a result of the actions of a physician described in this section may bring an action against a licensed health care provider who knowingly or intentionally treated the woman for infertility by using the licensed health care provider's own spermatozoon or ovum without the patient's informed written consent to treatment using that spermatozoon or ovum.

B. A donor of human reproductive material may bring an action against a licensed health care provider who treats a patient for infertility by using human reproductive material donated by the donor and who knows or reasonably should have known that the donor's human reproductive material was used either:

1. Without the donor's consent.

2. In a manner or to an extent other than that to which the donor consented.

C. A plaintiff who prevails in an action under this section is entitled to reasonable attorney fees, the costs of the fertility treatment if the action is brought under subsection A of this section, and either:

1. Compensatory and punitive damages.

2. Liquidated damages of $10,000.

D. A person who brings an action under subsection A of this section has a separate cause of action for each child born as the result of the fraudulent fertility treatment. A person who brings an action under subsection B of this section has a separate cause of action for each individual who received fertility treatment with the donor's human reproductive material.

E. Notwithstanding any other law and except as provided in subsection F of this section, an action for civil fertility fraud must be commenced not later than:

1. Ten years after the eighteenth birthday of the child.

2. If paragraph 1 of this subsection does not apply, twenty years after the procedure was performed.

F. An action for civil fertility fraud that would otherwise be barred under subsection E of this section may be commenced not later than five years after the earliest of the date that:

1. The person first discovers evidence sufficient to bring an action against the defendant through DNA analysis.

2. The person first becomes aware of the existence of a recording that provides evidence sufficient to bring an action against the defendant.

3. The defendant confesses to the offense.

G. For the purposes of this section:

1. "Human reproductive material" means a human spermatozoon or ovum or a human organism at any stage of development from fertilized ovum to embryo.

2. "Physician" means a person who is licensed pursuant to title 32, chapter 13 or 17.

§ 12-568 Review of attorneys' fees in health care actions; guidelines

A. The court shall, at the request of any party in any action under this chapter, determine the reasonableness of each party's attorneys' fees. The court shall take into consideration the following:

1. The time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal services properly.

2. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.

3. The fee customarily charged in the locality for similar legal services.

4. The amount involved and the results obtained.

5. The time limitations imposed by the client or by the circumstances.

6. The nature and length of the professional relationship with the client.

7. The experience, reputation and ability of the lawyer or lawyers performing the services.

8. Whether the fee is fixed or contingent.

B. In the event that any party requests a determination of the reasonableness of a party's attorneys' fees pursuant to subsection A, the court shall complete such determination within twenty days of the request.

§ 12-569 Non-admissibility of certain types of evidence relating to professional liability insurance

During the trial of a medical malpractice action against a licensed health care provider or during the course of any hearing or review conducted pursuant to section 12-567, evidence that any party or that any witness testifying in such trial, hearing, or review proceeding has been or is covered by a professional liability insurance policy issued by a health care insurer established pursuant to title 20, chapter 7, article 2 or that such party or witness has a financial interest in the operation of such a health care insurer arising as a result of the ownership of stock, a policy or policies of insurance, notes, including contributed surplus notes, any other evidence of indebtedness, or otherwise, shall not be received in evidence for any purpose.

§ 12-570 Malpractice settlement or award reporting; civil penalty; definition

A. If a medical malpractice action or an action brought under section 46-455 against a nursing care institution is settled or a court enters a monetary judgment:

1. The professional liability insurers shall provide the defendant's health profession regulatory board with all information required to be filed with the national practitioner data bank pursuant to Public Law 99-660. In the case of an action brought under section 46-455 against a nursing care institution, the information shall be provided to the department of health services.

2. The plaintiff's attorney shall provide the defendant's health profession regulatory board, or, in the case of an action brought against a nursing care institution, the department of health services, with the notice described in subsection B of this section, a copy of the complaint and a copy of either the agreed terms of settlement or the judgment. The attorney shall provide this notice and these documents within thirty days after a settlement is reached or a judgment is entered.

B. The notice required by subsection A of this section shall contain the following information:

1. The name and address of each defendant.

2. The name, date of birth and address of each plaintiff.

3. The date and location of the occurrence which created the claim.

4. A statement specifying the nature of the occurrence resulting in the malpractice action.

5. A copy of all expert witness depositions, a transcript of all expert witness court testimony or a written evaluation of the case by an expert witness.

C. The notice required by subsection A of this section is not discoverable and not admissible as evidence.

D. An attorney who does not supply the information required by subsections A and B of this section within thirty days after the notice of settlement or judgment is due under subsection A of this section is subject to a civil penalty of five hundred dollars.

E. A confidentiality clause in a settlement agreement does not apply to the reporting requirements of this section.

F. For the purposes of this section, "health profession regulatory board" has the same meaning prescribed in section 32-3201.

§ 12-571 Qualified immunity; health professionals; nonprofit clinics; previously owned prescription eyeglasses

A. A health professional as defined in section 32-3201 or a health professional who meets the requirements of section 32-3217 and who provides medical, optometric or dental treatment, care or screening within the scope of the health professional's certificate or license at a nonprofit clinic where neither the professional nor the nonprofit clinic receives compensation for any treatment, care or screening provided at the nonprofit clinic is not liable in a medical malpractice action, unless the health professional was grossly negligent. For the purposes of this subsection, "nonprofit clinic" includes a clinic, an office, a homeless or other shelter, a health or screening fair or any other setting where treatment, care or screening is provided at no cost to the patient.

B. A health professional who, within the professional's scope of practice, provides previously owned prescription eyeglasses free of charge through a charitable, nonprofit or fraternal organization is not liable for an injury to the recipient if the recipient or the recipient's parent or legal guardian has signed a medical malpractice release form and the injury is not a direct result of the health professional's intentional misconduct or gross negligence. For the purposes of this subsection, "medical malpractice release form" means a document that the recipient or the recipient's parent or legal guardian signs before the recipient receives eyeglasses pursuant to this subsection to acknowledge that the eyeglasses were not made specifically for the recipient and to accept full responsibility for the recipient's eye safety.

§ 12-572 Burden of proof for treatment in emergency departments or rendered by on-call providers

A. Unless the elements of proof contained in section 12-563 are established by clear and convincing evidence, a health professional as defined in section 32-3201 who provides or who is consulted to provide services to a patient of a licensed hospital in compliance with the emergency medical treatment and labor act (P.L. 99-272; 100 Stat. 164; 42 United States Code section 1395dd) or as a result of a disaster is not liable for any civil or other damages as a result of any act or omission.

B. Unless the elements of proof contained in section 12-563 are established by clear and convincing evidence regarding the acts or omissions of a licensed hospital or its agents and employees in cases that are covered by subsection A of this section, the hospital is not liable for any civil or other damages as a result of any act or omission.

§ 12-573 Limited liability for treatment related to delivery of infants; exception; definition

A. Unless the elements of proof contained in section 12-563 are established by clear and convincing evidence, a physician licensed to practice pursuant to title 32, chapter 13 or 17 is not liable to the pregnant female patient, the child or children delivered or their families for medical malpractice related to labor or delivery rendered on an emergency basis if the patient was not previously treated for the pregnancy by the physician, by a physician in a group practice with the physician or by a physician, physician assistant or certified nurse midwife with whom the physician has an agreement to attend the labor and delivery of the patient.

B. Unless the elements of proof contained in section 12-563 are established by clear and convincing evidence regarding the acts or omissions of a licensed health care facility or its employees in cases that are covered by subsection A of this section, the health care facility is not liable to the female patient, the child or children delivered or their families for medical malpractice related to labor or delivery.

C. This section does not apply to treatment that is rendered in connection with labor and delivery if the patient has been seen regularly by or under the direction of a licensed health care provider or a licensed physician from whom the patient's medical information is immediately available to the physicians attending the patient during labor and delivery.

D. For the purposes of this section, "emergency" means when labor has begun or a condition exists requiring the delivery of the child or children.

Article 2 Periodic Payments

§ 12-581 Definitions

In this article, unless the context otherwise requires:

1. "Bodily injury" means bodily harm, sickness, disease or emotional or mental distress, including death resulting from any of these conditions at any time, sustained by a person.

2. "Claimant" means a person suffering bodily injury, a person claiming on behalf of or as a result of bodily injury to another person, the representative of the estate of a deceased person or a beneficiary of a wrongful death action.

3. "Costs of health care" means medical, custodial, rehabilitative and related expenses.

4. "Economic loss" means pecuniary harm for which damages are recoverable.

5. "Future damages" means economic loss and noneconomic loss arising from bodily injury that accrues after trial of a claim under this article.

6. "Noneconomic loss" means nonpecuniary harm for which damages are recoverable but does not include punitive or exemplary damages.

7. "Past damages" means economic loss and noneconomic loss arising from bodily injury that have accrued before a claim is tried under this article, including punitive or exemplary damages.

8. "Qualified insurer" means an insurer, self-insurer, plan or arrangement approved by the director of the department of insurance and financial institutions.

§ 12-582 Election of periodic payments

A. This article applies to any trial involving a claim for future damages arising out of a medical malpractice action. Any party may elect to receive or pay future damages for economic losses in periodic installments in accordance with this article.

B. The election shall be made pursuant to court rule. Any objection to the election shall be made pursuant to court rule.

C. An election filed by a party claiming or responding to a claim for future damages is effective unless an objecting party shows good cause pursuant to section 12-583 why the trial or arbitration of a claim affecting the party should not be conducted under this article.

D. If an effective election is on file at the commencement of trial, all claims, including third party claims, counterclaims and claims consolidated for trial shall be tried under this article unless the court finds that a separate trial or other proceeding should be held on some or all of the claims that are not the subject of the election.

E. An effective election may be withdrawn only by consent of all parties to the claim to which the election relates.

§ 12-583 Good cause hearing

A. In a hearing held to determine whether good cause exists not to try a claim under this article, the court shall consider the circumstances of the parties and all relevant factors, including, but not limited to:

1. Whether the risk that a lump sum award would be dissipated is insignificant.

2. Whether the amount of future damages is too small or the time over which the payments would be made is too short or the economic savings are not such as to warrant payment in periodic installments.

3. Whether a party responding to a claim for future damages is unable to fund a periodic installment judgment.

B. If the objecting party fails to establish by clear and convincing evidence that good cause exists not to try a claim under this article, the court shall overrule the objection to the election.

C. If the court finds that good cause exists not to try a claim under this article, the court shall set forth in the record the reasons for the finding.

§ 12-584 Special findings; future damages

A. If liability is found in a trial conducted under this article, the trier of fact shall make separate findings for each claimant specifying the amount of any:

1. Past damages in a lump sum.

2. Future damages for noneconomic loss in a lump sum.

3. Future damages and the periods over which they will accrue, on an annual basis, for each of the following types:

(a) Costs of health care.

(b) Other economic loss.

B. The findings for future costs of health care of an injured claimant shall reflect the costs and losses during each year the trier of fact finds the claimant will sustain those costs and losses. The findings for other future economic loss of an injured claimant shall be based on the losses that the claimant or beneficiary will sustain over the period of time the claimant or the deceased would have lived but for the bodily injury on which the claim is based.

C. The trier of fact may find that future costs of health care will continue for the duration of the claimant's life, in which case it is not necessary to decide how long the claimant will live. If the trier of fact so finds, the trier of fact shall determine the costs of health care the claimant will incur each year while living.

§ 12-585 Evidence of future damages

A. The calculation for all future economic damages shall reflect future changes in earning power or the purchasing power of the dollar. Future damages shall not be discounted to present value, except pursuant to section 12-589.

B. Unless the court otherwise directs or the parties otherwise agree, the annual amounts for future damages shall be prorated and paid at one month intervals during the year due. Each payment is payable on the first day of the month following its accrual.

§ 12-586 Entering a judgment for future damages

A. If special findings for future damages are made, the court shall enter judgment pursuant to the following procedures:

1. The court shall apply to the findings of past and future damages any applicable rules of law in calculating the respective amounts of past and future damages each claimant is entitled to recover and each party is obligated to pay.

2. The court shall specify payment of attorney fees and litigation expenses separately from the periodic installments payable to the claimant pursuant to any agreement entered into between the claimant and his attorney. Under a percentage attorney fee contract, unless the contract specifies otherwise, the portion of the fee applicable to the recovery of the periodic installments of future damages is computed by multiplying the fee percentage times the cost of an annuity which would satisfy the funding requirements under sections 12-587 and 12-588.

B. A reduction in installments of future damages made pursuant to this section for payment of attorney's fees shall reduce proportionally all periodic installments for future damages.

C. The court shall enter judgment in lump sum for past damages and for any future damages payable in lump sum or otherwise under this section. The court shall also enter judgment for the payment in periodic installments of the remaining amounts of future damages, without reduction to present value. The periodic installments shall be set forth in the judgment in a schedule that shows the annual amount due in each year the trier of fact has found that losses will accrue. If a finding has been made that costs of health care will continue for the duration of the claimant's life, the judgment shall set forth the finding and the amount of those annual losses.

§ 12-587 Funding judgments for periodic installments

A. Each party liable for all or a portion of a judgment containing periodic installments shall provide funding, separately or jointly, for the unpaid installments in a form prescribed in section 12-588. The funding shall be provided not later than the date the judgment is subject to execution or not later than thirty days after the judgment is entered, whichever is later, unless it is superseded or the power to execute on the judgment is otherwise suspended.

B. A liability insurer having a contractual obligation or a person adjudged to have an obligation to pay all or part of a judgment entered for periodic installments is obligated to provide funding to the extent of the contractual or adjudged obligation. In determining if a judgment containing periodic installments for future damages exceeds limits under a liability insurance policy, the installments for future damages in the judgment shall be discounted to present value under section 12-589 to compute the lump sum value. The lump sum value or the cost of an annuity which would satisfy the funding requirement for installments of future damages, whichever is less, must be added to the total of any lump sum damages contained in the judgment for each claimant. The amount so computed shall be compared to applicable limits under the policy.

C. A judgment creditor or successor in interest and any party having rights under subsection E of this section may at any time subsequent to the judgment request the court to find that funding was not provided or maintained with regard to a judgment obligation owing to the requesting party. If the court finds that such funding as required by the judgment was not provided, the court shall order that funding be provided within the time ordered by the court. If such funding as required by the judgment is not provided within the time specified by the court, the court shall compute the lump sum equivalent of the obligation under section 12-589 and enter a judgment for that amount in favor of the requesting party.

D. If a person who is the only person liable for a portion of a judgment for periodic installments fails to provide or maintain funding, the right to a lump sum judgment under subsection C of this section applies only against that person and the portion of the judgment owed.

E. If more than one person is liable for all or a portion of periodic installments ordered by the judgment, and the required funding is provided by one or more but fewer than all of the persons liable, those providing funding may bring an action to satisfy or protect rights of reimbursement from a person not providing funding. If a person who has provided funding seeks to enforce rights for funding against a nonfunding person, the court may order the nonfunding person to indemnify those providing funding for a proportionate share of the cost of the funding provided or of the cost of an annuity as provided in section 12-588 which would satisfy the funding requirement.

F. If funding approved by the court has been provided, the judgment debtor on whose behalf the funding is provided is discharged and any lien against the judgment debtor is released. A liability insurer providing funding that meets the requirements of section 12-588 on behalf of a judgment debtor, to the extent it is obligated to do so under any applicable liability insurance contract, is deemed to have satisfied its duty to pay damages.

G. The court in which a trial is conducted under this article shall retain jurisdiction to enforce the provisions of this section if a judgment for periodic installments is entered.

§ 12-588 Form of funding

A. Funding authorized or required for payment of a judgment for periodic installments shall be approved by the court as sufficient to guarantee financial solvency and be in one or more of the following forms:

1. An annuity contract issued by one or more qualified insurers.

2. An agreement by one or more qualified insurers to fund the judgment.

3. Any other form of funding which the court approves and to which the claimant consents.

B. Funding under this section qualifies as a required supersedeas bond.

C. In the event of a qualified assignment under section 130 of the internal revenue code of 1986, as amended, the qualified assignee and any qualified insurer shall be jointly and severally liable but the qualified insurer's obligation shall be the primary obligation.

§ 12-589 Discounting future damages to present value

A. If future damages are ordered to be paid in advance of the period to which they apply, the court shall compute the present value of the future payments by discounting each remaining annual payment by a rate of interest equal to the interest rate of the most recent issue of fifty-two week United States treasury bills sold before the date damages are discounted.

B. To compute the present value of a lifetime award of future damages pursuant to section 12-584, subsection C, the duration of the term of payments shall be the life expectancy of the claimant at the time the computation is made prescribed by the race neutral life expectancy table for the appropriate sex in the current population survey collected by the bureau of the census for the bureau of labor statistics of the United States department of labor.

§ 12-590 Effect of death on periodic installments

A. The liability for payment of periodic installments for costs of health care not yet due at the death of the person entitled to receive the benefits terminates on the death of the person. Liability for payment of any other installments or portions of installments not yet due at the death of the person entitled to receive them terminates, except as provided in subsections B and C.

B. If, in an action for wrongful death, a judgment for periodic installments provides payments to more than one person and one or more but fewer than all of them die, the surviving beneficiaries are entitled to shares proportionate to their shares in the periodic installments not yet paid to the deceased beneficiary or beneficiaries. The surviving beneficiaries are not entitled to receive payments beyond the periods specified for such beneficiaries in the judgment.

C. If, in an action other than for wrongful death, a judgment for periodic installments is entered and a person entitled to receive benefits for economic losses other than for costs of health care under the judgment dies, any periodic installments not yet due at the person's death shall be paid to a beneficiary designated in writing by the deceased or, in the absence of such a designation, to the estate of the deceased.

§ 12-591 Assignment of periodic installments

An assignment of or an agreement to assign any right to periodic installments for future damages is not enforceable except for:

1. The payment of alimony, maintenance, spousal support or child support.

2. The costs of products, services or accommodations provided or to be provided by the assignee for health care.

3. Attorney fees and other litigation expenses incurred in obtaining or enforcing the judgment.

§ 12-592 Exemption of benefits

Periodic installments for future damages for loss of earnings or loss of support for beneficiaries of a judgment entered in a wrongful death action are exempt from garnishment, attachment, execution and any other process or claim to the extent wages or earnings are exempt under any applicable law. Periodic installments for all other future damages are exempt under garnishment, attachment, execution and any other process or claim except to the extent they may be assigned pursuant to section 12-591.

§ 12-593 Duties of the director of the department of insurance and financial institutions and insurance companies

A. The director of the department of insurance and financial institutions shall adopt rules:

1. For determining which insurers and assignees are financially qualified to provide and maintain the funding required under this article and to be designated as qualified insurers.

2. To require insurers to provide and maintain funding under section 12-587 if required by court order.

3. For publishing and revising a list of persons who have been designated by the director as qualified insurers.

B. The director shall annually review and evaluate the effectiveness of the system of periodic payments. If pursuant to such review and evaluation, the director determines that the system of periodic payments is effectively reducing the cost of medical malpractice tort claims for bodily injury, the director shall order appropriate actuarially justified rate adjustments based on those findings.

C. In order to qualify under this section, an insurance company shall:

1. Have at least an "A+" (superior) rating and a financial size category of VIII in the current edition of Best insurance reports as published by A. M. Best company.

2. Have no more than one ratio falling outside the usual range according to the current ratio published by the national association of insurance commissioners insurance regulatory information system.

3. Be licensed to do business in a state that has an applicable insurance guaranty fund of at least $100,000.

4. Meet any other standards that the director deems necessary to assure that funding will be provided and maintained. A qualified insurer may be a subsidiary of a parent insurance company if the parent insurance company qualifies as a qualified insurer and guarantees the obligation of the subsidiary.

§ 12-594 Arbitration and settlement agreements

A. This article also applies to claims for bodily injury arising out of medical malpractice that are subject to arbitration either by law or if the parties have agreed to its application by contract.

B. Parties to an action on any claim for bodily injury arising out of medical malpractice may file with the clerk of the court in which the action is pending, or, if none is pending, with the clerk of a court of competent jurisdiction over the claim, a settlement agreement for future damages payable in periodic installments. The settlement agreement may provide that one or more sections of this article apply to it.

Chapter 6 Special Actions and Proceedings by Individual Persons

Article 1 Change of Name

§ 12-601 Application; venue; judgment; sealing of record

A. A person who desires to change the person's name and to adopt another name may file an application in the superior court in the county of the person's residence, setting forth reasons for the change of name and the name the person wishes to adopt. The court may enter judgment that the adopted name of the party be substituted for the original name. The court shall consider the criteria under subsection C of this section in determining whether to enter judgment that the adopted name of the party be substituted for the original name.

B. The parent, guardian ad litem or next friend of a minor may file an application for change of the name of the minor in the county of the minor's residence. The court shall consider the best interests of the minor and the criteria that apply to the minor under subsection C of this section in determining whether to enter judgment that the name of the minor be changed.

C. A person who files an application for change of name shall indicate under penalty of perjury:

1. If the person has been convicted of a felony.

2. If felony charges are pending in any jurisdiction against the person for any offense under title 13, chapter 18, 20, 21, 22, 23 or 27 or any other offense involving false statements or misrepresentations about the person's identity.

3. If the person is knowingly changing the person's name to that of another individual for the purpose of committing or furthering the commission of any offense under title 13, chapter 18, 20, 21, 22, 23 or 27 or any other offense involving false statements.

4. The person is making the application solely for the best interest of the person.

5. The person acknowledges that the change of name will not release the person from any obligations incurred or harm any rights of property or actions in the original name.

D. Notwithstanding any law to the contrary, a victim as defined in section 13-4401 or a prosecutor has standing to contest any legal name change at any time before the entry of judgment or up to one year after entry of judgment.

E. On entering a conviction for an offense under title 13, chapter 18, 20, 21, 22, 23 or 27 or any other offense involving false statements or misrepresentations about the person's identity, the superior court may enter an order setting aside a change of name judgment or deny any pending application.

F. On request of a person who files an application for a change of name, the court may seal the change of name application and judgment. The information in the application and judgment shall not be disclosed and is not a public record. A person who obtained a judgment on or after January 1, 2009 may request that the court seal the application and judgment pursuant to this subsection. For the purposes of this subsection, "person" means a person who is protected under an order of protection or injunction against harassment or a person who is the victim of an offense involving stalking as prescribed in section 13-2923 or an offense committed in another jurisdiction that if committed in this state would be a violation or attempted violation of section 13-2923.

§ 12-602 Notice of application; effect of change on rights and obligations

A. If upon the filing of the application for change of name the court deems it proper that notice be given, it may order that notice of the application be given by publication or by service upon any party interested.

B. The change of name shall not operate to release the person from any obligations which he has incurred or is under by the original name, or defeat or destroy any rights of property or action which he had in his original name.

Article 2 Death by Wrongful Act

§ 12-611 Liability

When death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to murder in the first or second degree or manslaughter.

§ 12-612 Parties plaintiff; recovery; distribution; disqualification

A. An action for wrongful death shall be brought by and in the name of the surviving husband or wife, child, parent or guardian, or personal representative of the deceased person for and on behalf of the surviving husband or wife, children or parents, or if none of these survive, on behalf of the decedent's estate.

B. Either parent may maintain the action for the death of a child, and the guardian may maintain the action for the death of the guardian's ward.

C. The amount recovered in an action for wrongful death shall be distributed to the parties provided for in subsection A of this section in proportion to their damages, and if recovery is on behalf of the decedent's estate the amount shall be an asset of the estate.

D. If any party listed in subsection A of this section is found guilty of or guilty except insane for, or pled guilty or no contest to, a violation of section 13-3623 involving the death of the child decedent or a violation of section 13-1103, 13-1104 or 13-1105 involving the death of the decedent, the party is deemed to have predeceased the decedent and is disqualified from recovering wrongful death benefits. This subsection applies to a person who is found guilty of or guilty except insane for, or pled guilty or no contest to, an offense committed in another jurisdiction that has the same elements of an offense listed in this subsection and that if committed in this state would be a violation of any of the offenses listed in this subsection.

E. For the purposes of subsection A of this section, "personal representative" includes any person to whom letters testamentary or of administration are granted by competent authority under the laws of this or any other state. The personal representative may maintain the action for wrongful death without the issuance of further letters or any other requirement or authorization of law.

§ 12-613 Measure of damages; nonliability for debts of decedent

In an action for wrongful death, the jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover, and also having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default. The amount recovered in such action shall not be subject to debts or liabilities of the deceased, unless the action is brought on behalf of the decedent's estate.

Article 3 Establishing Identity

§ 12-621 Procedure to establish identity of persons

A. When a person desires to establish his identity or fix his birthright and parentage, or both, he may file in the superior court in the county where his residence is maintained an application setting forth his reasons for desiring to establish his identity, birthright or parentage. The court may, after hearing the application, enter judgment establishing identity or birthright and parentage, or both, of such person.

B. The parent, guardian ad litem or next friend of a minor may file such application in the county where the minor's residence is maintained.

§ 12-622 Notice of hearing; effect of establishing identity

A. Upon filing the application provided for in section 12-621, if the court deems it proper that notice be given of the hearing on the application, it may order that notice be given by publication or by service upon the parties interested.

B. The identity, birthright and parentage, or both, when established, if different than the party was reputed to have, shall not operate to relieve him from any obligation incurred or assumed under the former identity.

Article 4 Motor Vehicle Subleasing

§ 12-631 Definitions

In this article, unless the context otherwise requires:

1. "Buyer" means a person who buys or hires a motor vehicle under a retail installment contract.

2. "Direct loan agreement" means an agreement between a lender and a purchaser by which the lender has advanced monies pursuant to a loan secured by a motor vehicle which the purchaser has purchased.

3. "Lease contract" means a contract for or in contemplation of the lease for the use of a motor vehicle, and the purchase of services incidental to the lease, by a natural person for a term exceeding four months primarily for personal, family, household, business or commercial purposes, whether or not it is agreed that the lessee bears the risk of the motor vehicle's depreciation.

4. "Lessee" includes a bailee and means a natural person who leases, offers to lease or is offered the lease of a motor vehicle under a lease contract.

5. "Lessor" includes a bailor and means a person who is engaged in the business of leasing, offering to lease or arranging the lease of a motor vehicle under a lease contract.

6. "Motor vehicle" means a motor vehicle which is required to be registered under title 28, chapter 7.

7. "Purchaser" has the same meaning prescribed in section 47-1201.

8. "Retail installment contract" has the same meaning prescribed in section 44-281 and includes the sale of a motor vehicle between a buyer and a seller primarily for business or commercial purposes.

9. "Secured party" has the same meaning prescribed in section 47-9102.

10. "Security agreement" has the same meaning prescribed in section 47-9102.

11. "Security interest" has the same meaning prescribed in section 47-1201.

12. "Seller" means a person engaged in the business of selling or leasing motor vehicles under a retail installment contract.

§ 12-632 Unlawful motor vehicle subleasing; civil action; exemption

A. One or more of the following persons who suffer any damage proximately resulting from one or more acts of unlawful subleasing of a motor vehicle pursuant to section 13-3717 may bring an action against the person who has engaged in those acts:

1. A seller or any other secured party under a retail installment contract or a security agreement.

2. A lender under a direct loan agreement.

3. A lessor under a lease contract.

4. A buyer under a retail installment contract.

5. A purchaser under a direct loan agreement, an agreement which provides for a security interest or an agreement which is equivalent to these types of agreements.

6. A lessee under a lease contract.

7. An actual or purported transferee or assignee of any right or interest of a buyer, purchaser or lessee.

B. The court in an action under subsection A of this section may award actual damages, equitable relief, including an injunction and restitution of monies and property, punitive damages, reasonable attorney fees and costs, and any other relief which the court deems proper.

C. The rights and remedies provided in this section are in addition to any other rights and remedies provided by law.

D. This section does not apply to the subleasing of a motor vehicle with a gross weight, as defined in section 28-5431, of more than ten thousand pounds.

Article 5 Injury to Child or Ward

§ 12-641 Persons who may maintain action for injury to child or ward

Either parent may maintain an action for the injury of a child, and a guardian may maintain an action for the injury of his ward.

Article 6 Libel, Slander, and Invasion of Privacy

§ 12-651 Uniform single publication act

A. No person shall have more than one cause of action for damages for libel, slander, invasion of privacy or any other tort founded upon a single publication, exhibition or utterance, such as any one edition of a newspaper, book or magazine, any one presentation to an audience, any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.

B. A judgment in any jurisdiction for or against the plaintiff upon the substantive merits of any action for damages founded upon a single publication, exhibition or utterance as described in subsection A shall bar any other action for damages by the same plaintiff against the same defendant founded upon the same publication, exhibition or utterance.

C. This section shall be so interpreted as to effectuate its purpose to make uniform the law of those states or jurisdictions which enact it.

D. This section may be cited as the uniform single publication act.

E. This section shall not be retroactive as to causes of action existing on July 1, 1953.

§ 12-652 Liability of radio or television station owner or agent for defamation published or uttered over station or network

A. The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of the owner, licensee or operator, shall not be liable for damages for a defamatory statement published or uttered in or as a part of a visual or sound radio broadcast by one other than the owner, licensee or operator, or agent or employee thereof, unless it is alleged and proved by the complaining party that the owner, licensee, operator or agent or employee has failed to exercise due care to prevent publication or utterance of the statement in the broadcast. The exercise of due care shall be construed to include a bona fide compliance with federal law or regulations of a federal regulatory agency.

B. An owner, licensee or operator, or the agents or employees of such owner, licensee or operator of a station or network of stations shall not be liable for damages for defamatory statements published or uttered over the facilities of such station or network by or on behalf of a candidate for public office.

C. In an action for damages for a defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, the complaining party shall be allowed only the actual damages alleged and proved.

§ 12-653 Nonliability for publication made at instance of public officer acting in compliance with law

An action for damages shall not lie against the editor, publisher, or proprietor of a newspaper or periodical for publication of a report, proceedings or other matter published at the instance of a public officer acting in compliance with law.

Article 6.1 Libel and Slander Correction and Resulting Damages

§ 12-653.01 Definitions

In this article, unless the context otherwise requires:

1. "Actual malice" means that state of mind arising from personal spite, hatred, or ill will toward the plaintiff, but such a state of mind occasioned by a good faith belief on the part of the defendant in the truth of the libelous publication or broadcast at the time it is published or broadcast shall not constitute actual malice.

2. "Exemplary damages" means damages which may, in the discretion of the court or jury, be recovered in addition to general and special damages for the sake of example and by way of punishing a defendant who has made the publication or broadcast with actual malice.

3. "General damages" means damages for loss of reputation.

4. "Magazine" or "newspaper" means any publication which may be mailed at the second-class rates established by the United States post office.

5. "Special damages" means all damages which the plaintiff alleges and proves he has suffered in respect only to his property, business, trade, profession or occupation.

§ 12-653.02 Failure to demand or publish or broadcast correction; publication with actual malice; damages; service of demand

In an action for damages for the publication of a libel in a newspaper or magazine, or of a slander by radio or television broadcast, the plaintiff shall recover no more than special damages unless a correction is demanded and not published or broadcast, unless the plaintiff shall prove the publication or broadcast was made with actual malice. The plaintiff shall serve upon the publisher at the place of publication, or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. The notice and demand shall be served within twenty days after actual knowledge of the plaintiff of the publication or broadcast of the statements claimed to be libelous.

§ 12-653.03 Failure to publish or broadcast correction; recovery of special and exemplary damages; malice

If a correction is demanded within the period prescribed by section 12-653.02, and is not published or broadcast in substantially as conspicuous a manner in the newspaper or magazine, or on the radio or television broadcasting station, as the statements claimed to be libelous, in a regular issue thereof published or broadcast within three weeks after service, plaintiff, if he pleads and proves the notice, demand and failure to correct, and if his cause of action is maintained, may recover general, special and exemplary damages subject to applicable rules of law governing such damages in this jurisdiction, but no exemplary damages may be recovered unless the plaintiff proves that defendant made the publication or broadcast with actual malice and then only in the discretion of the court or jury.

§ 12-653.04 Publication or broadcast of correction prior to demand

A correction published or broadcast in substantially as conspicuous a manner in the newspaper or magazine, or on the radio or television broadcasting station, as the statements claimed in the complaint to be libelous, prior to receipt of a demand therefor, shall be of the same force and effect as though the correction had been published or broadcast within three weeks after a demand therefor.

§ 12-653.05 Exception

The provisions of this article shall not apply to any publication or broadcast made within thirty days preceding any election, if such publication or broadcast is designed to in any way influence the results of such election.

Article 7 Torts of Minors

§ 12-661 Liabilities of parents or legal guardians for malicious or wilful misconduct of minors

A. Any act of malicious or wilful misconduct of a minor which results in any injury to the person or property of another, to include theft or shoplifting, shall be imputed to the parents or legal guardian having custody or control of the minor whether or not such parents or guardian could have anticipated the misconduct for all purposes of civil damages, and such parents or guardian having custody or control shall be jointly and severally liable with such minor for any actual damages resulting from such malicious or wilful misconduct.

B. The joint and several liability of one or both parents or legal guardian having custody or control of a minor under this section shall not exceed ten thousand dollars for each tort of the minor. The liability imposed by this section is in addition to any liability otherwise imposed by law.

C. Notwithstanding any law to the contrary, nothing in this section limits the right of an insurer to exclude coverage for the acts of a minor imputed to his parent or legal guardian pursuant to this section.

Article 8 Insufficient Funds Check

§ 12-671 Drawing check or draft on no account or insufficient account with intent to defraud; civil action; definition of credit; prima facie evidence

A. A person who, for himself or for another, with intent to defraud, makes, draws, utters or delivers to another person or persons a check or draft on a bank or depositary for payment of money, knowing at the time of such making, drawing, uttering or delivery, that he or his principal does not have an account or does not have sufficient funds in, or credit with, such bank or depositary to meet the check or draft in full upon presentation, shall be liable to the holder of such check or draft for twice the amount of such check or draft or fifty dollars, whichever is greater, together with costs and reasonable attorney's fees as allowed by the court on the basis of time and effort expended by such attorney on behalf of plaintiff.

B. The word "credit" as used in this section shall be construed to be an express agreement with the bank or depositary for payment of the check or draft.

C. Proof that, at the time of presentment, the maker, issuer or drawer did not have sufficient funds with the bank or depositary, and that he failed within twelve days after receiving notice of nonpayment or dishonor to pay the check or draft is prima facie evidence of intent to defraud.

D. Where a check, draft or order is protested, on the ground of insufficiency of funds or credit, the notice of formal protest thereof shall be admissible as proof of presentation, nonpayment and protest and shall be prima facie evidence of the insufficiency of funds or credit with the bank or depositary, or person, or firm or corporation.

E. "Notice", as used in this section, means notice given to the person entitled thereto, either in person, or in writing. Such notice in writing shall be given by certified mail, return receipt requested, to the person at his address as it appears on such check or draft.

F. Nothing in this section shall be applicable to any criminal case or affect eligibility or terms of probation.

Article 9 Product Liability

§ 12-681 Definitions

In this article, unless the context otherwise requires:

1. "Defective and unreasonably dangerous" does not include a food product that is otherwise fit for human consumption and nourishment.

2. "Food product" means any product that is grown, prepared, provided, served or sold and that is primarily intended for human consumption and nourishment.

3. "Manufacturer" means a person or entity that designs, assembles, fabricates, produces, constructs or otherwise prepares a product or component part of a product before its sale to a user or consumer, including a seller owned in whole or significant part by the manufacturer or a seller owning the manufacturer in whole or significant part.

4. "Product" means the individual product or any component part of the product that is the subject of a product liability action.

5. "Product liability action" means any action brought against a manufacturer or seller of a product for damages for bodily injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, sale, use or consumption of any product, the failure to warn or protect against a danger or hazard in the use or misuse of the product or the failure to provide proper instructions for the use or consumption of any product.

6. "Product safety analysis or review" means any investigation, inquiry, review, evaluation or other means by which a person or entity seeks to determine, calculate, predict, estimate, evaluate or report the safety or health effects of the use of any of its products, systems, services or processes. Product safety analysis or review includes an analysis or review by a component manufacturer of the safety and health effects of component parts in end products. A product safety analysis or review may be conducted by employees of the person or entity or by consultants engaged specifically to perform the analysis or review.

7. "Reasonable remedial measures" means actions taken as a result of a product safety analysis or review and intended to improve the safety of products, systems, services or processes or to lessen the likelihood of a safety-related accident. These actions include:

(a) Modifications to the product, system, service or process.

(b) Changes in quality assurance procedures or policies.

(c) Modifications made to the design or method of manufacturing, to manufacturing equipment or to the testing of the product, system, service or process.

(d) Changes or additions to training programs or safety education programs.

(e) Personnel or human resources measures related to the product, system, service or process.

(f) The use or modification of warnings, notices or changes to owner manuals and related materials.

(g) The recall of products.

8. "Reasonably foreseeable alteration, modification, use or consumption" means an alteration, modification, use or consumption of the product that would be expected of an ordinary and prudent purchaser, user or consumer and that an ordinary and prudent manufacturer should have anticipated.

9. "Seller" means a person or entity, including a wholesaler, distributor, retailer or lessor, that is engaged in the business of leasing any product or selling any product for resale, use or consumption.

10. "State of the art" means the technical, mechanical and scientific knowledge of manufacturing, designing, testing or labeling the same or similar products that was in existence and reasonably feasible for use at the time of manufacture.

§ 12-682 Limitation

The previously existing common law of products liability is modified only to the extent specifically stated in this article and section 12-551.

§ 12-683 Affirmative defenses

In any product liability action, a defendant shall not be liable if the defendant proves that any of the following applies:

1. The defect in the product is alleged to result from inadequate design or fabrication, and if the plans or designs for the product or the methods and techniques of manufacturing, inspecting, testing and labeling the product conformed with the state of the art at the time the product was first sold by the defendant.

2. The proximate cause of the incident giving rise to the action was an alteration or modification of the product that was not reasonably foreseeable, made by a person other than the defendant and subsequent to the time the product was first sold by the defendant.

3. The proximate cause of the incident giving rise to the action was a use or consumption of the product that was for a purpose, in a manner or in an activity other than that which was reasonably foreseeable or was contrary to any express and adequate instructions or warnings appearing on or attached to the product or on its original container or wrapping, if the intended consumer knew or with the exercise of reasonable and diligent care should have known of such instructions or warnings.

4. The proximate cause of the incident or incidents giving rise to the action was the repeated consumption of a food product that is not defective and unreasonably dangerous if consumed in reasonable quantities.

§ 12-684 Indemnification; tender of defense; execution

A. In any product liability action where the manufacturer refuses to accept a tender of defense from the seller, the manufacturer shall indemnify the seller for any judgment rendered against the seller and shall also reimburse the seller for reasonable attorneys' fees and costs incurred by the seller in defending such action, unless either paragraph 1 or 2 applies:

1. The seller had knowledge of the defect in the product.

2. The seller altered, modified or installed the product, and such alteration, modification or installation was a substantial cause of the incident giving rise to the action, was not authorized or requested by the manufacturer and was not performed in compliance with the directions or specifications of the manufacturer.

B. If a judgment is rendered in favor of the plaintiff and a seller is granted indemnity against a manufacturer, the plaintiff shall first attempt to satisfy the judgment by levying execution upon the manufacturer in this state or in the state where the manufacturer's principal place of business is located and by making demand upon any liability insurance carrier of the manufacturer whose identity is known to plaintiff before attempting to collect the judgment from the seller or the seller's liability insurance carrier. The return of a writ of execution partially or wholly unsatisfied or the failure of the manufacturer's insurance carrier to pay the judgment upon demand shall be deemed full compliance with the plaintiff's obligation to attempt to collect from the manufacturer.

C. In any product liability action the manufacturer of the product shall be indemnified by the seller of the product for any judgment rendered against the manufacturer and shall also reimburse the manufacturer for reasonable attorneys' fees and costs incurred in defending such action, if the seller provided the plans or specifications for the manufacture or preparation of the product and such plans or specifications were a substantial cause of the product's alleged defect and if the product was manufactured in compliance with and according to the plans or specifications of the seller. If a judgment is rendered in favor of the plaintiff and a manufacturer is granted indemnity against a seller, the plaintiff shall first attempt to satisfy the judgment by levying execution upon the seller in this state or in the state where the seller's principal place of business is located and by making demand upon any liability insurance carrier of the seller whose identity is known to plaintiff before attempting to collect the judgment from the manufacturer or manufacturer's liability insurance carrier. The return of a writ of execution partially or wholly unsatisfied or the failure of the seller's insurance carrier to pay the judgment upon demand shall be deemed full compliance with the plaintiff's obligation to attempt to collect from the seller. The provisions of this subsection shall not apply if the manufacturer had knowledge or with the exercise of reasonable and diligent care should have had knowledge of the defect in the product.

§ 12-685 Contents of complaint; amount of recovery

In any product liability action no dollar amount or figure shall be included in the complaint. The complaint shall pray for such damages as are reasonable in the premises. The complaint shall include a statement reciting that the jurisdictional amount established for filing the action is satisfied.

§ 12-686 Inadmissible evidence

In any product liability action, the following shall not be admissible as direct evidence of a defect:

1. Evidence of advancements or changes in the state of the art subsequent to the time the product was first sold by the defendant.

2. Evidence of any change made in the warnings, design or methods of manufacturing or testing the product or any similar product subsequent to the time the product was first sold by the defendant.

§ 12-687 Reasonable remedial measures; cause of action; punitive damages

If a person or entity conducts a product safety analysis or review and, as a result, takes reasonable remedial measures, the following shall apply to a product liability action brought against the person or entity:

1. The plaintiff may not use the product safety analysis or review or the reasonable remedial measures to prove negligence, that the product was defective or unreasonably dangerous, or other culpable conduct in a product liability action. However, the plaintiff may use the product safety analysis or review or reasonable remedial measures for other purposes, such as proving feasibility of precautionary measures, impeachment or to controvert any position taken by a defendant in litigation which is inconsistent with the contents of the product safety analysis or review or reasonable remedial measures.

2. This subsection does not prevent a plaintiff in a product liability action from proving negligence, that the product was defective or unreasonably dangerous, or other culpable conduct by other independent evidence or sources, even if such evidence or sources are mentioned or included in the product safety analysis or review or reasonable remedial measures.

3. The plaintiff may not use the product safety analysis or review or the reasonable remedial measures to prove conduct that would subject the person or entity that caused the product safety analysis or review to be performed to punitive or exemplary damages, unless the plaintiff establishes that the analysis or review, or the reasonable remedial measures, were undertaken in bad faith or solely for the purpose of affecting the litigation instituted by the plaintiff.

4. The existence and contents of a product safety analysis or review and any resulting reasonable remedial measures are discoverable and subject to disclosure in a product liability action unless otherwise privileged. However, a portion of a product safety analysis or review may be designated and maintained as confidential and protected from public disclosure pursuant to applicable rules of civil procedures if the portion involves trade secrets as defined in section 44-401, proprietary material or competitively sensitive information. Any dispute as to confidentiality shall be determined by a court following an in camera review of the portion of the analysis or review in question.

§ 12-688 Duty to warn; food products

There is no duty to warn a purchaser, user or consumer or any other person, regardless of age, that the consumption of a food product that is not defective and unreasonably dangerous may cause health problems if consumed excessively.

§ 12-689 Exemption from punitive or exemplary damages; applicability; definitions

A. A manufacturer, service provider or seller is not liable for exemplary or punitive damages if any of the following applies:

1. The product alleged to have caused the harm was designed, manufactured, packaged, labeled, sold or represented in relevant and material respects according to the terms of an approval, conditional approval, clearance, license or similar determination of a government agency.

2. The product, activity or service complied with all statutes of this state or the United States or standards, rules, regulations, orders or other actions of a government agency pursuant to statutory authority that are relevant and material to the event or risk allegedly causing the harm and the product, activity or service complied at the time the product left the control of the manufacturer or seller.

3. The act or transaction forming the basis of the claim involves terms of service, contract provisions, representations or other practices authorized by, or in compliance with, the rules, regulations, standards or orders of, or a statute administered by, a government agency.

B. This section does not apply if the claimant establishes that the manufacturer, service provider or seller, at any time before the activity or event that allegedly caused the harm, did any of the following:

1. Sold the product, activity or service after the effective date of a final order of a government agency to remove the product from the market, to withdraw its approval of the product, activity or service or to substantially alter its terms of approval of the product, activity or service in a manner that would have avoided the claimant's alleged injury. For the purposes of this paragraph and paragraph 4 of this subsection, a product, activity or service is sold when it is delivered or provided to the end user, even if payment is not made until later.

2. Intentionally, and in violation of applicable regulations as determined by final action of the government agency, withheld from or misrepresented to the government agency information material to the approval or maintaining of approval of the product, activity or service, and the information is relevant to the harm that the claimant allegedly suffered.

3. Made an illegal payment to an official or employee of a government agency for the purpose of securing or maintaining approval of the product, activity or service.

4. After the product was sold or the service was provided, a government agency found that the manufacturer, service provider or seller knowingly violated applicable regulations requiring the reporting to that government agency of risks of harm and the unreported information was material and relevant to the harm that the claimant allegedly suffered.

C. This section shall not be construed to do any of the following:

1. Expand the authority of any state agency or state agent to adopt or promulgate standards or regulations where no such authority previously existed.

2. Reduce the scope of any limitation on liability based on compliance with the rules or regulations of a government agency applicable to a specific act, transaction, person or industry.

3. Affect the liability of a service provider based on rates filed with and reviewed or approved by a government agency.

D. For the purposes of this section:

1. "Activity" means an action, pattern of operation or practice that is regulated, approved, licensed or otherwise required by a government agency.

2. "Government agency" means this state or the United States or any agency of this state or the United States or any entity vested with the authority of this state or the United States to issue rules, regulations, orders or standards concerning the design, manufacture, packaging, labeling or advertising of a product or activity or the provision of a service.

3. "Manufacturer" means any person who is engaged in a business to produce, create, make or construct any product or component part of a product and who does either of the following:

(a) Designs, manufactures or formulates the product or component part of the product.

(b) Engages another person to design, manufacture or formulate the product or component part of the product.

4. "Product" means any object possessing intrinsic value, capable of delivery either as an assembled whole or as a component part or parts and produced for introduction into trade or commerce.

5. "Seller" means a person who in the course of a business conducted for that purpose does either of the following:

(a) Sells, distributes, rents, leases, prepares, blends, packages, labels or otherwise is involved in placing a product, activity or service in the stream of commerce.

(b) Installs, repairs, refurbishes, reconditions or maintains a product.

6. "Service" means all actions that are engaged in for other persons for a consideration, which actions involve predominantly the performance of a service as distinguished from manufacture or sale of a product and that are regulated, approved or licensed by a government agency.

§ 12-690 Duty of care; admissibility of evidence in certain motor vehicle accidents; definition

A. In any civil action where a covered motor vehicle is involved in an accident, there is no obligation or duty of care for an owner, lessor or operator of the covered motor vehicle, or for a person renting or leasing the covered motor vehicle to another person, to retrofit the covered motor vehicle with component parts or optional equipment, or to have selected component parts or optional equipment to be included on the covered motor vehicle, if such parts or equipment were not required by the federal motor vehicle safety standards under 49 Code of Federal Regulations part 571 applicable when the covered motor vehicle was manufactured or first sold. Evidence related to such an alleged obligation or duty is inadmissible.

B. This section does not apply if the owner, lessor or operator of the covered motor vehicle, or the person renting or leasing the covered motor vehicle to another person, fails to comply with a law or regulation issued after the covered motor vehicle was manufactured or first sold requiring a mandatory recall or retrofit of the covered motor vehicle.

C. For the purposes of this section, "covered motor vehicle" means a motor vehicle for which the owner's liability for an accident is governed by 49 United States Code section 30106.

Article 10 Shoplifting

§ 12-691 Civil liability for shoplifting; adult; emancipated minor

An adult or emancipated minor who commits shoplifting as defined by section 13-1805 is civilly liable to the owner of the obtained goods for all of the following:

1. A penalty in the amount of the retail value of the obtained goods.

2. For an adult, an additional penalty of at least two hundred fifty dollars but not more than two hundred fifty dollars plus the actual damages to the owner.

3. For an emancipated minor, an additional penalty of at least one hundred dollars but not more than one hundred dollars plus the actual damages to the owner.

§ 12-692 Shoplifting by unemancipated minor; liability of parent or guardian; foster parents

A. The parents or legal guardians having custody or control of an unemancipated minor who commits shoplifting as defined by section 13-1805 are civilly liable to the owner of the obtained goods for all of the following:

1. A penalty in the amount of the retail value of the obtained goods.

2. An additional penalty of not less than one hundred dollars nor more than one hundred dollars plus the actual damages to the owner.

B. Foster parents are not liable under subsection A of this section for the acts of children placed with them pursuant to title 8, chapter 4, article 4 or 5.

§ 12-693 Conviction for shoplifting; admissibility

A conviction for shoplifting under section 13-1805 is not required to maintain an action pursuant to this article. An adjudication of not guilty of violation of section 13-1805 is admissible in an action for civil liability under sections 12-691 and 12-692. A person convicted for shoplifting under section 13-1805 is precluded from subsequently denying the essential allegations of the offense in any action pursuant to this article. For the purposes of this section, a conviction may result from a verdict or a plea including a no contest plea.

§ 12-694 Bringing action; court

An action for recovery of damages under this article may be brought in any court of competent jurisdiction, including the small claims division of a justice court, if the total actual damages and penalties do not exceed the jurisdictional limit of the court.

Article 11 Drugs and Pharmaceuticals

§ 12-701 Drugs; exemplary or punitive damages; definition

A. The manufacturer or seller of a drug is not liable for exemplary or punitive damages if the drug alleged to cause the harm either:

1. Was manufactured and labeled in relevant and material respects in accordance with the terms of an approval or license issued by the federal food and drug administration under the food, drug and cosmetic act (21 United States Code section 301, et seq.) or the public health service act (42 United States Code section 201, et seq.) or

2. Is generally recognized as safe and effective pursuant to conditions established by the federal food and drug administration and applicable regulations, including packaging and labeling regulations.

B. Subsection A does not apply if the plaintiff proves, by clear and convincing evidence, that the defendant, either before or after making the drug available for public use, knowingly, in violation of applicable federal food and drug administration regulations, withheld from or misrepresented to the administration information known to be material and relevant to the harm which the plaintiff allegedly suffered.

C. In this section, "drug" means the same as provided in section 201(g)(1) of the federal food, drug and cosmetic act (21 United States Code section 321(g)(1)).

Article 12 Miscellaneous

§ 12-711 Affirmative defense; limitation

In any civil action, the finder of fact may find the defendant not liable if the defendant proves that the claimant or, if the claimant is an heir or the estate of a deceased person, the decedent was under the influence of an intoxicating liquor or a drug and as a result of that influence the claimant or decedent was at least fifty per cent responsible for the accident or event that caused the claimant's or decedent's harm.

§ 12-712 Affirmative defense; limitation; criminal act

A. In any civil action, the finder of fact may find the defendant not liable if the defendant proves that the claimant or, if the claimant is an heir or the estate of a deceased person, the decedent was attempting to commit, committing or immediately fleeing from a felony criminal act and as a result of that act, attempted act or flight the claimant or decedent was at least fifty per cent responsible for the accident or event that caused the claimant's or decedent's harm.

B. In any civil action, the finder of fact may find the defendant not liable if the defendant proves that the defendant did not act intentionally and that the claimant or, if the claimant is an heir or the estate of a deceased person, the decedent was attempting to commit, committing or immediately fleeing from a misdemeanor criminal act and as a result of that act, attempted act or flight the claimant or decedent was at least fifty per cent responsible for the accident or event that caused the claimant's or decedent's harm.

C. Notwithstanding subsection A or B of this section, in any civil action, the finder of fact may find the defendant not liable if the defendant proves that the defendant did not act intentionally and that the claimant or, if the claimant is an heir or the estate of a deceased person, the decedent was attempting to commit, committing or immediately fleeing from an act in violation of section 13-1802, subsection A, paragraph 7 or 8 and, as a result of that act, attempted act or flight, the claimant or decedent was in any way responsible for the accident or event that caused the claimant's or decedent's harm.

§ 12-713 Providers of emergency services; civil liability

In the provision of 911 services, a person, a provider as defined in section 42-5251 or a public entity or any employee of the public entity is not liable for damages in any civil action for injuries, death or loss to a person or property that are incurred by any person with respect to all decisions made and actions or omissions taken that are based on good faith implementation except in the cases of wanton or wilful misconduct, regardless of technology platform including a public safety radio communications network, that receives, develops, collects or processes information for the service's location information databases, relays, transfers, operates, maintains or provides emergency notification services or system capabilities, or provides emergency communications or services for ambulances, police and fire departments or other public safety entities.

§ 12-714 Actions against firearm manufacturers; prohibition; findings; definitions

A. A political subdivision of this state shall not commence a qualified civil liability action in any Arizona court.

B. The legislature finds that:

1. The citizens of this state have the right, under the second amendment to the United States Constitution and article 2, section 26 of the Arizona Constitution, to keep and bear arms.

2. Lawsuits have been commenced against the manufacturers, distributors, dealers and importers of nondefective firearms for the harm caused by the misuse of firearms by third parties, including criminals.

3. Businesses in the United States that are engaged in the lawful sale to the public of firearms or ammunition are not, and should not be liable for the harm caused by those who unlawfully misuse firearms or ammunition.

4. The possibility of imposing liability on an entire industry for harm that is the sole responsibility of others is an abuse of the legal system, threatens the diminution of a basic constitutional right and constitutes an unreasonable burden on the free enterprise system.

5. The liability actions commenced by political subdivisions are based on theories without foundation in the common law and American jurisprudence. Such an expansion of liability would constitute a deprivation of the rights, privileges and immunities guaranteed to citizens of this state under both the Constitution of Arizona and the United States Constitution.

C. As used in this section:

1. "Manufacturer" means, with respect to a qualified product:

(a) A person who is engaged in a business to import, make, produce, create or assemble a qualified product and who designs or formulates, or has engaged another person to design or formulate, a qualified product.

(b) A seller of a qualified product, but only with respect to an aspect of the product that is made or affected when the seller makes, produces, creates or assembles and designs or formulates an aspect of the product made by another person.

(c) Any seller of a qualified product who represents to a user of a qualified product that the seller is a manufacturer of the qualified product.

2. "Qualified civil liability action" means a civil action brought by a political subdivision against a manufacturer or seller of a qualified product or a trade association, for damages resulting from the criminal or unlawful misuse of a qualified product by a third party. Qualified civil liability action does not include an action brought against a transferor convicted under 18 United States Code section 924(h) or section 13-3102, subsection A, paragraph 14, by a party directly harmed by the conduct of which the transferee is convicted.

3. "Qualified product" means a nondefective firearm as defined in 18 United States Code section 921(a)(3) or nondefective ammunition as defined in 18 United States Code section 921(a)(17), or a component part of a firearm or ammunition, that has been shipped or transported in interstate or foreign commerce.

4. "Seller" means, with respect to a qualified product, a person who either:

(a) In the course of a business conducted for that purpose sells, distributes, rents, leases, prepares, blends, packages, labels or otherwise is involved in placing a qualified product in the stream of commerce.

(b) Installs, repairs, refurbishes, reconditions or maintains an aspect of a qualified product that is alleged to have resulted in damages.

5. "Trade association" means any association or business organization, whether or not incorporated under federal or state law, two or more members of which are manufacturers or sellers of a qualified product.

§ 12-715 Donation of fire or emergency medical services equipment; exemption from civil liability; definition

A. A person, a public entity or any other legal entity that makes a good faith donation of used or excess fire control, fire rescue or emergency medical services equipment to a fire department, fire district or volunteer fire department and that at the time of making the donation believes that the equipment is serviceable is not liable for damages in any civil action for any injury or death due to the condition of the equipment unless the injury or death is a direct result of the intentional misconduct, gross or ordinary negligence of the donor. This subsection also applies to equipment that is acquired through the federal excess personal property program established by the federal property and administrative services act of 1949 (P.L. 81-152; 63 Stat. 377; 40 United States Code section 483).

B. A fire department, fire district or volunteer fire department that in good faith receives a donation of serviceable fire control, fire rescue or emergency medical services equipment and that at the time of the donation reasonably believes that the equipment is serviceable is not liable for damages in any civil action for any injury or death due to the condition of the equipment unless the injury or death is a direct result of the intentional misconduct or gross negligence of the fire department, fire district or volunteer fire department. After placing the donated equipment into service, a fire department, fire district or volunteer fire department shall maintain the donated equipment in a safe and serviceable manner.

C. For the purposes of this section, "fire control, fire rescue or emergency medical services equipment" means any vehicle, fire fighting tool, protective clothing, breathing apparatus and other supplies and tools that are used in fire fighting, fire rescue or emergency medical services.

§ 12-716 Injury during criminal acts; civil actions; presumptions; definitions

A. If the court finds by a preponderance of the evidence that a plaintiff is harmed while the plaintiff is attempting to commit, committing or fleeing after having committed or attempted to commit a felony criminal act or if a person intentionally or knowingly caused temporary but substantial disfigurement or temporary but substantial impairment of any body organ or part or a fracture of any body part of another person, the following presumptions apply to any civil liability action or claim:

1. A victim or peace officer is presumed to be acting reasonably if the victim or peace officer threatens to use or uses physical force or deadly physical force or a police tool product to either:

(a) Protect himself or another person against another person's use or attempted use of physical force or deadly physical force.

(b) Effect an arrest or prevent or assist in preventing a plaintiff's escape.

2. This state or a political subdivision of this state is presumed to have reasonably hired and trained its peace officers to use physical force or deadly physical force if a peace officer threatens to use or uses physical force or deadly physical force to either:

(a) Protect himself or another person against another person's use or attempted use of physical force or deadly physical force.

(b) Effect an arrest or prevent or assist in preventing a plaintiff's escape.

3. The police tool product that caused the physical harm and any accompanying warning or instruction are presumed not to be defective and the manufacturer of police tools is presumed not to be negligent if, before the sale by the manufacturer, the product either:

(a) Conforms with the generally recognized state of the art applicable to the safety and warnings of the product at the time the product was designed, manufactured, packaged and labeled.

(b) Complies with any applicable code, standard, regulation or specification that is established, adopted, promulgated or approved by the United States or this state or any agency of the United States or this state.

B. If a party files a motion to dismiss or a motion for summary judgment pursuant to this section and the court grants the motion, the court shall award the moving party costs and attorney fees.

C. For the purposes of this section:

1. "Costs" means all costs that are reasonably incurred in connection with the motion, including filing fees, record preparation and document copying fees, time away from employment, expert witness fees, travel expenses and any other costs that the court deems appropriate.

2. "Plaintiff" includes the heir or estate of a deceased person who was attempting to commit, committing or fleeing after having committed or attempting to commit a felony or misdemeanor criminal act or was under the influence of an intoxicating liquor or a drug.

3. "Police tool product" means any weapon, safety equipment or product that is used by law enforcement.

§ 12-717 Liquefied petroleum gas provider; liability; definitions

A. In any civil action against a liquefied petroleum gas provider for civil or other damages, the liquefied petroleum gas provider is liable only for the amount of damages that are in proportion to the liquefied petroleum gas provider's percentage of fault and is not liable for the amount of damages allocated to fault attributed to either:

1. An alteration or modification of liquefied petroleum gas equipment that was not reasonably foreseeable, that was made by a person other than the liquefied petroleum gas provider and that could not have been discovered by the liquefied petroleum gas provider in the exercise of reasonable care.

2. The use of liquefied petroleum gas equipment in a manner or for a purpose other than that for which the liquefied petroleum gas equipment was intended to be used or could reasonably have been foreseen to be used, if the liquefied petroleum gas provider or the liquefied petroleum gas equipment manufacturer has taken reasonable steps to warn the ultimate consumer of the hazards associated with foreseeable misuses of the gas equipment.

B. This section does not affect, modify or eliminate the liability of a liquefied petroleum gas equipment manufacturer or its employees or agents under any legal claim, including product liability claims.

C. For the purposes of this section:

1. "Liquefied petroleum gas equipment" means a liquefied petroleum gas appliance or other liquefied petroleum gas equipment.

2. "Liquefied petroleum gas provider" means any person or entity engaged in the business of supplying, handling, transporting or selling at retail liquefied petroleum gas, but does not include a liquefied petroleum gas equipment manufacturer.

§ 12-718 Emergency aid involving liquefied petroleum gas; exemption from civil liability

A. A person who has knowledge and training in the storage, handling, transportation, operation and utilization of liquefied petroleum gas is not liable in any civil action for any damages that occur as a result of providing assistance without remuneration, on the request of any peace officer, fire company or department, first aid, rescue or emergency squad or other governmental agency or entity, in an accident or other emergency situation that involves the use, handling, transportation, transmission or storage of liquefied petroleum gas if the person was conscripted at the scene as a true volunteer.

B. This section does not apply to a person who causes the accident or emergency situation or whose wilful, wanton or grossly negligent act or omission in response to the accident or emergency situation causes damage or for any vicarious liability.

§ 12-719 Civil liability; wrongful birth or life claims; applicability

A. A person is not liable for damages in any civil action for wrongful birth based on a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.

B. A person is not liable for damages in any civil action for wrongful life based on a claim that, but for an act or omission of the defendant, the person bringing the action would not or should not have been born.

C. This section applies to any claim regardless of whether the child is born healthy or with a birth defect or other adverse medical condition.

D. This section does not apply to any civil action for damages for an intentional or grossly negligent act or omission, including an act or omission that violates a criminal law.

§ 12-720 Nondisclosure agreements; applicability; use of public monies; definitions

A. The terms of a nondisclosure agreement may not be used to prohibit a party to the agreement from doing any of the following in relation to a violation or an alleged violation of title 13, chapter 14 or 35:

1. Responding to a peace officer's or a prosecutor's inquiry.

2. Making a statement not initiated by that party in a criminal proceeding.

B. An act that is allowed by subsection A of this section may not be used to avoid or invalidate a party's right to consideration under the contract or to require the return of consideration that has already been provided to the party.

C. This section may not be used as authority to enforce a nondisclosure agreement.

D. Public monies may not be used as consideration in exchange for a nondisclosure agreement that is related to an allegation of or attempted sexual assault or sexual harassment.

E. For the purposes of this section:

1. "Criminal proceeding" includes a grand jury, pretrial interview, deposition, hearing, trial and sentencing proceeding pursuant to criminal law.

2. "Nondisclosure agreement" means a confidentiality agreement or contract provision that prohibits the disclosure of information by a party to the contract.

§ 12-721 Prohibited commencement of qualified civil liability actions; firearm manufacturers and sellers; applicability; attorney fees and costs; definitions

A. A person may not commence a qualified civil liability action.

B. This section does not prohibit a person who is under seventeen years of age from recovering damages pursuant to a civil action authorized by a federal or state law described in subsection C, paragraph 4, subdivision (c), item (i), (ii), (iii), (iv) or (v) of this section.

C. The prevailing party in an action filed pursuant to this section shall recover reasonable attorney fees and costs.

D. For the purposes of this section:

1. "Engaged in the business" means any of the following:

(a) As applied to a manufacturer of firearms, a person that devotes time, attention and labor to manufacturing firearms as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the manufactured firearms.

(b) As applied to a manufacturer of ammunition, a person that devotes time, attention and labor to manufacturing ammunition as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the manufactured ammunition.

(c) As applied to a dealer in firearms, as defined in 18 United States Code section 921(a)(11)(A), a person that devotes time, attention and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms but does not include a person who makes occasional sales, exchanges or purchases of firearms for the enhancement of a personal collection or for a hobby or who sells all or part of the person's personal collection of firearms.

(d) As applied to a dealer in firearms, as defined in 18 United States Code section 921(a)(11)(B), a person that devotes time, attention and labor to engaging in the activity as a regular course of trade or business with the principal objective of livelihood and profit but does not include a person who makes occasional repairs of firearms or who occasionally fits special barrels, stocks or trigger mechanisms to firearms.

(e) As applied to an importer of firearms, a person that devotes time, attention and labor to importing firearms as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the imported firearms.

(f) As applied to an importer of ammunition, a person that devotes time, attention and labor to importing ammunition as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the imported ammunition.

2. "Manufacturer" means, with respect to a qualified product, a person that is engaged in the business of manufacturing the product in interstate or foreign commerce and that is licensed to engage in business.

3. "Negligent entrustment" means supplying a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.

4. "Qualified civil liability action" means a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product or a trade association for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, penalties or other relief resulting from the criminal or unlawful misuse of a qualified product by the person or a third party. Qualified civil liability action does not include:

(a) An action brought against a transferor convicted under 18 United States Code section 924(h) or section 13-3102, subsection A, paragraph 14 by a party directly harmed by the conduct of which the transferee is convicted.

(b) An action brought against a seller for negligent entrustment or negligence per se.

(c) An action in which a manufacturer or seller of a qualified product knowingly violated a state or federal law applicable to the sale of the qualified product and the violation was a proximate cause of the harm for which relief is sought, including any of the following:

(i) Any case in which the manufacturer or seller knowingly made any false entry in or failed to make appropriate entry in any record required to be kept under federal or state law with respect to the qualified product or aided, abetted or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product.

(ii) Any case in which the manufacturer or seller aided, abetted or conspired with any other person to sell or otherwise dispose of a qualified product, knowing or having reasonable cause to believe that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under 18 United States Code section 922(g) or (n).

(iii) An action for breach of contract or warranty in connection with the purchase of the qualified product.

(iv) An action for death, physical injury or property damage resulting directly from a defect in the design or manufacture of the qualified product, when used as intended or in a reasonably foreseeable manner, except that if the discharge of the qualified product was caused by a volitional act that constituted a criminal offense, the act is considered the sole proximate cause of any resulting death, personal injury or property damage.

(v) An action or proceeding commenced by the United States attorney general to enforce 18 United States Code chapter 44 or 26 United States Code chapter 53.

5. "Qualified product" means a firearm as defined in 18 United States Code section 921(a)(3)(A) or (B), including an antique firearm as defined in 18 United States Code section 921(a)(16) or ammunition as defined in 18 United States Code section 921(a)(17)(A) or a component part of a firearm or ammunition, that has been shipped or transported in interstate or foreign commerce.

6. "Seller" means, with respect to a qualified product, any of the following:

(a) An importer as defined in 18 United States Code section 921(a)(9) that is engaged in the business as an importer in interstate or foreign commerce and that is licensed to engage in business as an importer under 18 United States Code chapter 44.

(b) A dealer as defined in 18 United States Code section 921(a)(11) that is engaged in the business as a dealer in interstate or foreign commerce and that is licensed to engage in business as a dealer under 18 United States Code chapter 44.

(c) A person that is engaged in the business of selling ammunition as defined in 18 United States Code section 921(a)(17)(A) in interstate or foreign commerce at the wholesale or retail level.

7. "Trade association" means any corporation, unincorporated association, federation, business league or professional or business organization that is all of the following:

(a) Not organized or operated for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual.

(b) Is an organization described in 26 United States Code section 501(c)(6) and is exempt from tax under 26 United States Code section 501(a).

(c) Two or more members of which are manufacturers or sellers of a qualified product.

8. "With the principal objective of livelihood and profit" means the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain as opposed to other intents, including improving or liquidating a personal firearms collection.

§ 12-722 Trafficking of persons; civil liability; applicability; remedies; joint and several liability; definitions

A. A person who engages in the trafficking of a person or who intentionally or knowingly benefits from participating in a venture that traffics another person is liable to the person trafficked for damages that arise from the trafficking of that person by the person or venture.

B. It is not a defense to liability under this section that the person was acquitted or has not been prosecuted for or convicted of an offense included in title 13 or has been convicted of a different offense, or of a different type or class of offense, for the conduct that is alleged to give rise to liability under this section.

C. This section applies to any legal entity that is governed by title 10 or 29.

D. Notwithstanding titles 10 and 29, if a legal entity is found responsible pursuant to this section, a shareholder, member or partner of that entity is jointly and severally liable with the entity to the person trafficked for damages that arise from the trafficking of that person if the person demonstrates that the shareholder, member or partner caused the entity to be used to traffic that person for the direct personal benefit of the shareholder, member or partner.

E. A claimant who prevails under this section:

1. Shall be awarded actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown, court costs and reasonable attorney fees.

2. In addition to an award under paragraph 1 of this subsection, may recover exemplary damages.

F. The rights and remedies provided in this section supplement any other rights and remedies provided by law, including common law rights.

G. A person who engages in the trafficking of a person or who intentionally or knowingly benefits from participating in a venture that traffics another person and is found responsible under this section or other law for any amount of damages arising from the trafficking is jointly liable with any other person found to be liable for the entire amount of damages arising from the trafficking.

H. For the purposes of this section:

1. "Person" has the same meaning prescribed in section 13-105.

2. "Traffics another person" or "trafficking of a person" means conduct that constitutes an offense under section 13-1306, 13-1307, 13-1308, 13-3206 or 13-3212.

Article 13 Interception or Disclosure of Wire, Oral or Electronic Communications

§ 12-731 Recovery of civil damages

A. Except as provided in title 13, chapter 30, any person whose wire, oral or electronic communication is intentionally intercepted, disclosed or used in violation of title 13, chapter 30 may bring a civil action to recover from the person or entity that engaged in the violation the following:

1. Such preliminary and other equitable or declaratory relief as may be appropriate.

2. Damages in an amount that is the greater of either:

(a) The sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation.

(b) Statutory damages of one hundred dollars a day for each day of the violation.

(c) Statutory damages of ten thousand dollars.

3. Punitive damages in appropriate cases.

4. Reasonable attorney fees and other reasonable costs of litigation.

B. A civil action under this section may not be commenced later than one year after the date upon which the plaintiff first has a reasonable opportunity to discover the violation.

Article 14 Unauthorized Disclosure of Intimate Images

§ 12-741 Unauthorized disclosure of intimate images; civil action; exceptions; confidential information form; remedies; statute of limitations; definitions

A. A person is liable in a civil action for intentionally disclosing or threatening to disclose an intimate image of another individual if the depicted individual suffers harm from the disclosure or threatened disclosure and the person knew or should have known all of the following:

1. The depicted individual did not consent to the disclosure.

2. The intimate image was private.

3. The depicted individual was identifiable from the image itself or from information that is displayed in connection with the image.

B. Evidence that the depicted individual consented to the creation of the image or that the depicted individual previously consented to the disclosure of the image does not by itself establish that the depicted individual consented to the disclosure of the intimate image or that the depicted individual lacked a reasonable expectation of privacy.

C. A depicted individual who does not consent to the specific sexual activities or state of nudity depicted in an intimate image of the individual retains a reasonable expectation of privacy even if the image was created when the depicted individual was in a public place.

D. Notwithstanding subsection A of this section, a person is not liable under this section if the person proves that disclosing or threatening to disclose the intimate image was any of the following:

1. Made in good faith in any of the following:

(a) Law enforcement.

(b) A legal proceeding.

(c) Medical education or treatment.

2. Made in good faith in reporting or investigating any of the following:

(a) Unlawful conduct.

(b) Unsolicited and unwelcome conduct.

3. Related to a matter of public concern or public interest.

4. Reasonably intended to assist the depicted individual.

5. Made by a parent, legal guardian or individual with legal custody of a child and the depicted individual is the child unless the image is disclosed with the intent to harm the depicted individual.

E. Subsection D of this section does not apply if the plaintiff proves the disclosure was prohibited by law or made for the purpose of sexual arousal, sexual gratification, humiliation, degradation or monetary or commercial gain.

F. Disclosing or threatening to disclose an intimate image is not a matter of public concern or public interest solely because the depicted individual is a public figure.

G. If the plaintiff files with the court and serves on the defendant a confidential information form that includes the excluded or redacted plaintiff's name and other identifying characteristics, the court may exclude or redact from all pleadings and documents filed in the action other identifying characteristics of the plaintiff. The court may make further orders as necessary to protect the identity and privacy of a plaintiff.

H. The prevailing plaintiff may recover:

1. The greater of:

(a) Economic and noneconomic damages that are proximately caused by the defendant's disclosure or threatened disclosure, including damages for emotional distress whether or not accompanied by other damages.

(b) Statutory damages of not more than $10,000 against each defendant found liable under this section for all of the defendant's disclosures and threatened disclosures that the plaintiff knew or reasonably should have known when filing the action or that became known during the pendency of the action. In determining the amount of statutory damages under this subdivision, consideration must be given to the age of the parties at the time of the disclosure or threatened disclosure, the number of disclosures or threatened disclosures made by the defendant, the breadth of distribution of the image by the defendant and other exacerbating or mitigating factors.

2. An amount equal to any monetary gain made by the defendant from disclosing or threatening to disclose the intimate image.

3. Punitive damages.

4. Reasonable attorney fees and costs.

5. Additional relief, including injunctive relief.

I. A civil action for an unauthorized disclosure may not be brought later than four years after the date that the disclosure was discovered or should have been discovered with the exercise of reasonable diligence except that a threat to disclose may not be brought later than four years after the date of the threat to disclose.

J. In a civil action brought by a depicted individual who was a minor on the date of the disclosure or threat to disclose, the time specified in subsection I of this section does not begin to run until the depicted individual attains the age of majority.

K. For the purposes of this section:

1. "Consent" means affirmative, conscious and voluntary authorization by an individual with legal capacity to give authorization.

2. "Depicted individual" means an individual whose body is shown in whole or in part in an intimate image.

3. "Disclose" or "disclosure" means to display, distribute, publish, advertise or offer.

4. "Harm" includes physical harm, economic harm and emotional distress whether or not accompanied by physical or economic harm.

5. "Intimate image" means a photograph, film, videotape, digital recording or other similar medium that shows a state of nudity or specific sexual activities.

6. "Private" means either of the following:

(a) Created or obtained under circumstances in which a depicted individual had a reasonable expectation of privacy.

(b) Made accessible through theft, bribery, extortion, fraud, false pretenses, voyeurism or exceeding authorized access to an account, message, file, device, resource or property.

7. "Specific sexual activities" has the same meaning prescribed in section 11-811.

8. "State of nudity" has the same meaning prescribed in section 11-811, subsection E, paragraph 14, subdivision (a).

Article 15 Public Participation in Government

§ 12-751 Strategic actions against public participation; motion to dismiss or quash; definitions

A. In any legal action that involves a person's lawful exercise of the right of petition, the right of speech, the freedom of the press, the right to freely associate or the right to peaceably assemble pursuant to the United States Constitution or Arizona Constitution, the person other than a state actor or an intervenor may file a motion to dismiss or quash the action under this section.

B. A person who files a motion pursuant to subsection A of this section has the burden of establishing prima facie proof that the legal action was substantially motivated by a desire to deter, retaliate against or prevent the lawful exercise of a constitutional right. The moving person may submit evidence based on the record, a sworn affidavit or other evidence that is submitted with the motion to dismiss or quash. A party is not required to file a response to a motion filed pursuant to subsection A of this section unless and until the court finds that the moving party has established the prima facie proof and orders the party to file a response. The court shall grant the motion unless one of the following applies:

1. If the responding party is a state actor, the responding party shows that the legal action on which the motion is based is justified by clearly established law and that the responding party did not act in order to deter, prevent or retaliate against the moving party's exercise of constitutional rights. A state actor may satisfy the requirements of this paragraph by doing any of the following:

(a) Establishing that the person who initiated and conducted an investigation that resulted in the legal action and that made the decision to pursue the legal action was unaware of the movant's lawful exercise of the constitutional right.

(b) Establishing that the state actor has a consistent practice of pursuing similar legal actions against similarly situated persons who did not lawfully exercise constitutional rights.

(c) Producing any other evidence that the court finds sufficient.

2. If the responding party is not a state actor, the responding party shows that the legal action on which the motion is based is justified by existing law or supported by a reasonable argument for extending or modifying existing law.

C. In making its determination, the court shall conduct an evidentiary hearing or consider the pleadings and supporting and opposing affidavits stating facts on which the liability, defense or action is based.

D. The motion to dismiss or quash may be filed within sixty days after the service of the complaint or other document on which the motion is based or, in the court's discretion, at any later time on terms that the court deems proper, including a later time after there is actual notice of a party's misconduct. If the court finds that prima facie proof has been established as prescribed in subsection B of this section, the court, if possible, shall conduct an expedited hearing on the motion.

E. Unless a court rule specifically provides otherwise, all discovery proceedings in the action shall be stayed on a finding of prima facie proof as prescribed in subsection B of this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. Notwithstanding this subsection, the court, on noticed motion and for good cause shown, may order that specified discovery be conducted.

F. If the court grants the motion to dismiss or quash, the court may award the moving party costs and reasonable attorney fees, including those incurred for the motion. If the court finds that a motion to dismiss or quash is frivolous or solely intended to delay, the court shall award costs and reasonable attorney fees to the prevailing party on the motion. For the purposes of this subsection, "costs" means all costs that are reasonably incurred and includes filing fees, record preparation and document copying fees, documented time away from employment to confer with counsel or attend case related proceedings, expert witness fees, travel expenses and any other costs that the court deems appropriate.

G. If the court denies the motion to dismiss or quash, the denial and the court's findings in support of the denial are not admissible in evidence at any later stage of the case, or in any subsequent action, and the burden of proof or degree of proof that is otherwise applicable is not affected by the findings in any later stage of the case or in any subsequent proceeding.

H. If the court determines that the moving party has established prima facie proof as prescribed in subsection B of this section, an order granting or denying a motion filed pursuant to this section is appealable pursuant to section 12-2101.

I. This article does not:

1. Affect, limit or preclude the right of the moving party to any remedy otherwise authorized by law.

2. Create any privileges or immunities or otherwise affect, limit or preclude any privileges or immunities authorized by law.

3. Limit or preclude a legislative or executive body or a public agency from enforcing the rules of procedure and rules of order of the body or agency.

J. For the purposes of this section:

1. "Legal action":

(a) Means any of the following:

(i) Any civil action, claim, cross-claim or counterclaim for damages other than nominal damages.

(ii) Any criminal prosecution, except for a drug trafficking offense included in title 13, chapter 34 or 34.1, a riot or a serious offense or violent or aggravated felony as defined in section 13-706.

(iii) Any written investigative demand pursuant to section 38-431.06 or other compulsory legal process or any regulatory or administrative action by a state actor.

(b) Does not include a motion filed pursuant to subsection A of this section.

2. "State actor" means any of the following:

(a) This state and any county, city, town or political subdivision of this state.

(b) Any branch, department, board, bureau, commission, council or committee of an entity included in subdivision (a) of this paragraph.

(c) Any officer, employee or other agent of an entity included in subdivision (a) of this paragraph who is acting in the officer's, employee's or agent's official capacity.

Article 16 Right of Publicity

§ 12-761 Right of publicity; unauthorized use of the name, portrait or picture of a soldier; exceptions; definition

A. The right to control and to choose whether and how to use a soldier's name, portrait or picture for commercial purposes is recognized as each soldier's right of publicity.

B. A person is liable for using the name, portrait or picture of any soldier without having obtained prior consent to the use by the soldier or by the soldier's spouse, immediate family member, trustee if the soldier is a minor or legally designated representative if the person uses the name, portrait or picture for any of the following purposes:

1. Advertising for the sale of any goods, wares or merchandise.

2. Soliciting patronage for any business.

3. Receiving consideration for the sale of any goods, wares or merchandise.

C. A person who uses the name, portrait or picture of a soldier for a prohibited purpose without prior consent from the soldier or a person who may enforce the soldier's rights and remedies is subject to the following:

1. Injunctive relief to prevent or restrain the unauthorized use.

2. Treble damages.

3. Punitive or exemplary damages.

4. Attorney fees and costs.

D. In calculating damages, any profits from the unauthorized use that are attributable to that use shall be taken into account.

E. The rights and remedies provided in this section supplement any other rights and remedies provided by law, including the common law right of privacy.

F. Any claim for relief that is requested pursuant to this section shall be brought within five years after the unauthorized publication.

G. The right of publicity is a property right that survives a soldier's death. On the soldier's death, only the following individuals may enforce the soldier's rights and remedies in the following order:

1. The soldier's legally designated representative.

2. The soldier's spouse.

3. The soldier's parents.

4. The soldier's children.

5. The soldier's grandchildren.

H. This section does not apply to the following:

1. The use of a soldier's name, portrait or picture in an attempt to portray, describe or impersonate that soldier in a live performance, a single and original work of fine art, a play, book, article, musical work or film or on radio, television or other audio or audiovisual work if the performance, musical work, play, book, article or film does not itself constitute a commercial advertisement for any goods, wares or merchandise.

2. The use of a soldier's name, portrait or picture for noncommercial purposes, including any news, public affairs or sports broadcast or account.

3. The use of a soldier's name in truthfully identifying the soldier as the author of a particular work or program or as the performer in a particular performance.

4. Any promotional materials, advertisements or commercial announcements for a use described in paragraph 1, 2 or 3 of this subsection.

5. The use of photographs, video recordings and images by a person, firm or corporation practicing the profession of photography to exhibit, in or about the professional photographer's place of business or portfolio, specimens of the professional photographer's work, unless the exhibition is continued by the professional photographer after written notice objecting to the exhibition by the portrayed soldier or a person who may enforce the soldier's rights and remedies.

6. A soldier's picture or portrait that is not facially identifiable.

7. A photograph of a monument or a memorial that is placed on any goods, wares or merchandise.

I. For the purposes of this section, "soldier" means any active duty member or former member of the armed forces of the United States, including any member who was killed in the line of duty.

Article 17 Declaration of Innocence

§ 12-771 Factual innocence; judicial determination; procedure; definition

A. A person, or a prosecuting agency on behalf of the person, may petition the superior court for a judicial determination of the person's factual innocence if as a result of the person’s personal identifying information being taken, the person's name was either:

1. Used by another person who was arrested, cited or charged with a criminal offense.

2. Entered as of record in a judgment of guilt in a criminal case.

B. The petition shall be filed in the superior court in the county in which the arrest was made, the citation was issued or the charge was filed.

C. If the charge was filed in a justice of the peace court or municipal court the justice of the peace or presiding officer of a municipal court shall transmit all papers in the case, a copy of all proceedings as shown by the docket and all orders entered in the action to the clerk of the superior court of the county.

D. If no charge was filed the petition shall be served on the arresting or citing law enforcement agency.

E. If a charge was filed:

1. The petition, if filed by the person, shall be served on the prosecuting agency and, if applicable, a copy of the petition shall be provided to the defense attorney.

2. The prosecuting agency, on the filing of the petition, shall provide notice to all victims pursuant to section 13-4440.

F. The court may conduct a hearing to determine the person's factual innocence.

G. If the court finds by clear and convincing evidence that the person's name was used as set forth in subsection A of this section the court shall find the person factually innocent of the offense.

H. On a finding of factual innocence the court shall notify the following, if applicable:

1. The person.

2. The prosecuting agency.

3. The law enforcement agency.

4. The defense attorney.

I. The court shall consider a person or party's request to expedite the judicial determination.

J. Nothing in this section shall delay a proceeding or in any other manner affect a criminal case.

K. For the purposes of this section, "personal identifying information" has the same meaning prescribed in section 13-2001.

§ 12-772 Factual improper party status; judicial determination; procedure; definition

A. A person, or a party to the action on behalf of the person, may petition the superior court for a judicial determination of the person's factual improper party status if as a result of the person's personal identifying information being taken the person's name was entered as of record in a civil action or judgment.

B. The petition shall be filed in the superior court in the county in which the civil action was filed.

C. If the civil action was filed in a justice of the peace court, the justice of the peace shall make a certified copy of all docket entries and the record of the proceedings in the action and transmit it together with a certified copy of the bill of costs and the original papers in the action to the clerk of the superior court.

D. The petitioner shall serve the petition on all parties.

E. The court may conduct a hearing to determine the person's factual improper party status.

F. If the court finds by clear and convincing evidence that the person is not a proper party to the civil action or judgment as a result of the person's personal identifying information being taken the court shall find the person a factual improper party in that civil action or judgment.

G. The court shall notify the person and all parties of the court's finding.

H. The court shall consider a person or party's request to expedite the judicial determination.

I. For the purposes of this section, "personal identifying information" has the same meaning prescribed in section 13-2001.

§ 12-773 Factual innocence; factual improper party; other remedies

A. A proceeding pursuant to this article is in addition to any other procedure or remedy available to a victim of identity theft.

B. No person or creditor may require a victim of identity theft to file a petition pursuant to this article.

Article 18 Firearms Storage and Transportation

§ 12-781 Transportation or storage of firearms; motor vehicles; applicability

A. A property owner, tenant, public or private employer or business entity shall not establish, maintain or enforce a policy or rule that prohibits a person from lawfully transporting or lawfully storing any firearm that is both:

1. In the person's locked and privately owned motor vehicle or in a locked compartment on the person's privately owned motorcycle.

2. Not visible from the outside of the motor vehicle or motorcycle.

B. Any policy or rule that is established or maintained or the attempted enforcement of any policy or rule that is in violation of subsection A is contrary to public policy, is null and void and does not have legal force or effect.

C. This section does not apply if:

1. The possession of the firearm is prohibited by federal or state law.

2. The motor vehicle is owned or leased by a public or private employer or business entity and is used by an employee in the course of the employment, unless the employee is required to store or transport a firearm in the official discharge of the employee's duties or if the public or private employer or business entity consents to the transportation or storage of the firearm.

3. The property owner, tenant, public or private employer or business entity provides a parking lot, parking garage or other area designated for parking motor vehicles, that:

(a) Is secured by a fence or other physical barrier.

(b) Limits access by a guard or other security measure.

(c) Provides temporary and secure firearm storage. The storage shall be monitored and readily accessible on entry into the premises and allow for the immediate retrieval of the firearm on exit from the premises.

4. The property owner's, tenant's, public or private employer's or business entity's compliance with this section necessitates the violation of another applicable federal or state law or regulation.

5. The property owner, tenant, public or private employer or business entity is a nuclear generating station that provides a secured and gated or fenced parking lot, parking garage or other area designated for parking motor vehicles and provides temporary and secure firearm storage. The storage shall be readily accessible on entry into the premises and allow for the immediate retrieval of the firearm on exit from the premises.

6. The parking lot, parking garage or other area designated for parking motor vehicles is on an owner occupied single family detached residence or a tenant occupied single family detached residence.

7. The property owner, tenant, public or private employer or business entity is a current United States department of defense contractor and the property is located in whole or in part on a United States military base or a United States military installation. If any part of the property is not located on the United States military base or United States military installation, the property shall be contiguous with the base or installation.

8. The property owner, tenant, public or private employer or business entity provides alternative parking in a location reasonably proximate to the primary parking area for individuals who desire to transport or store a firearm in the individual's motor vehicle and does not charge an extra fee for such parking.

Article 19 Asbestos Exposure Related Personal Injury Claims

§ 12-782 Asbestos exposure related claims; disclosures; discovery; mandatory claims; stay of proceedings; assignment of rights and claims; remedies; definitions

A. In any action involving a personal injury claim, within forty-five days after July 3, 2015 for pending personal injury claims in which the defendant's answer has been filed or within forty-five days after the filing of the defendant's answer in a lawsuit involving a personal injury claim, whichever is later, the plaintiff shall provide to all parties a sworn statement identifying each personal injury claim that the plaintiff has filed or reasonably anticipates filing against an asbestos trust. The statement for each claim shall include the name, address and contact information for the asbestos trust, the amount claimed by the plaintiff, the date that the plaintiff filed the claim, the disposition of the claim and whether there has been a request to defer, delay, suspend or toll the claim against the asbestos trust.

B. In any action involving a personal injury claim, within sixty days after July 3, 2015 for pending personal injury claims in which the defendant's answer has been filed or within sixty days after the filing of the defendant's answer in a lawsuit involving a personal injury claim, whichever is later, the plaintiff shall provide to all parties all of the following:

1. For each personal injury claim that the plaintiff has filed against an asbestos trust, a copy of the final executed proof of claim, all trust documents, including trust claims materials, trust governance documents, any documents reflecting the current status of the claim and, if the claim is settled, all documents relating to the settlement of the claim.

2. A list of each personal injury claim that the plaintiff reasonably anticipates filing against an asbestos trust, including the name, address, and contact information for the asbestos trust and the amount that the plaintiff anticipates claiming against the asbestos trust.

C. The plaintiff shall supplement the information and materials that are provided under subsections A and B of this section within thirty days after the plaintiff files an additional claim or receives additional information or documents related to any claim that the plaintiff makes against an asbestos trust.

D. If the plaintiff identifies any asbestos trusts pursuant to subsection B, paragraph 2 of this section, the court shall stay all proceedings until the plaintiff files a claim against the asbestos trust and provides to the court and to all parties in the personal injury action a copy of the final executed proof of claim and all other trust claims materials relevant to each claim the plaintiff has against each asbestos trust identified pursuant to subsection B, paragraph 2 of this section. The plaintiff shall disclose whether there has been a request to defer, delay, suspend or toll the claim against any asbestos trust.

E. To the extent permitted by court rule, in a personal injury claim action, trust claims materials and trust governance documents are admissible in evidence. Claims of privilege do not apply to trust claims materials or trust governance documents.

F. A defendant in a personal injury claim may seek discovery against an asbestos trust identified under subsections A, B, C, H, I, J, K and L of this section. The plaintiff may not claim privilege or confidentiality to bar discovery and the plaintiff shall provide consents or other expression of permission that may be required by the asbestos trust to release information and materials sought by the defendant.

G. A court may not schedule a trial in a personal injury claim action until at least one hundred eighty days after the plaintiff makes the disclosures required by subsections A, B and C of this section.

H. If any defendant identifies an asbestos trust not named by the plaintiff against which the defendant reasonably believes the plaintiff should file a claim, on motion by the defendant, the court shall determine whether to order the plaintiff to file a claim against the asbestos trust. For each asbestos trust a defendant identifies, the defendant shall produce or describe the evidence required to file a valid claim with the asbestos trust and the amount of money the asbestos trust should pay for the plaintiff's claim.

I. The court shall establish a deadline for filing a motion under subsection H of this section. Any deadline that is established pursuant to this subsection must afford the parties an adequate opportunity to investigate the defendant's claims.

J. If the court orders the plaintiff to file a claim with the asbestos trust, the court shall stay the immediate action until the plaintiff swears or affirms that the plaintiff has filed the claim against the asbestos trust and the plaintiff provides to the court and to all parties a final executed proof of claim and all other trust claims materials relevant to each claim the plaintiff has against an asbestos trust.

K. The court may allow additional time for discovery or may stay the proceedings for other good cause shown.

L. Not less than thirty days before trial, the court shall direct the parties to enter into the record a trust claims document that identifies each personal injury claim the plaintiff has made against an asbestos trust.

M. A plaintiff's submission of a claim to an asbestos trust and related trust claims materials may be considered by a jury or other trier of fact to determine liability and apportion fault in a personal injury claim and shall be sufficient to support a jury finding that the plaintiff has been exposed to products for which the asbestos trust was established to provide compensation and that the exposure may be a substantial factor in causing the plaintiff's injury that is at issue in the personal injury claim. If a plaintiff in a personal injury claim proceeds to trial before one or more of the claims against an asbestos trust is resolved and subsequently receives compensation from an asbestos trust, the amount of the compensation shall be credited against any judgment entered against any defendant found to be at fault in the action to the extent that the compensation amount exceeds the fault apportioned to the asbestos trust by the jury or other fact finder. If multiple defendants are found liable for damages, the court shall distribute the amount of the setoff or credit proportionally according to the liability of each defendant.

N. A plaintiff who fails to timely provide all of the information required under subsections A, B, C, H, I, J, K and L of this section is subject to sections 12-349 and 12-3201 and any other sanction that the court orders.

O. Nothing in this section requires disclosure of information or documents that either:

1. Is the subject of a binding contractual confidentiality clause in effect prior to July 3, 2015.

2. Is restricted from disclosure by federal law or court order.

P. For the purposes of this section:

1. "Asbestos trust" means a trust, qualified settlement fund, compensation fund or claims facility that is created as a result of an administrative or legal action, bankruptcy, agreement or other settlement or pursuant to 11 United States Code section 524(g) and that is intended to provide compensation to claimants alleging personal injury claims as a result of harm, also potentially compensable in the immediate action, for which the entity creating the trust, qualified settlement fund, compensation fund or claims facility is alleged to be responsible.

2. "Personal injury claim" means any claim for damages, loss, indemnification, contribution, restitution or other relief, including punitive damages, that is related to bodily injury or another harm, including loss of consortium, society or companionship, loss of support, personal injury or death, mental or emotional injury, risk or fear of disease or other injury or costs of medical monitoring or surveillance and that is allegedly caused by or related to the claimant's exposure to asbestos, and includes a claim made by or on behalf of the person who claims the injury or harm or by or on behalf of the person's representative, spouse, parent, minor child or other relative. Personal injury claim does not include a claim for compensatory benefits pursuant to workers' compensation or veterans benefits.

3. "Trust claims materials" means all documents and information relevant or related to a pending or potential claim against an asbestos trust and includes claims forms and supplementary materials, proofs of claim, affidavits, depositions and trial testimony, work history and medical and health records.

4. "Trust governance document" means any document that determines eligibility and payment levels, including claims payment matrices, trust distribution procedures or plans for reorganization, for an asbestos trust.

§ 12-783 Asbestos personal injury claim; sworn statement; required information; dismissal; definition

A. In any action involving a personal injury claim arising from exposure to asbestos and in addition to any requirements for asbestos exposure related claims prescribed in section 12-782, a plaintiff shall file a sworn statement within forty-five days after any asbestos action is filed. The sworn statement shall specify the facts that provide the basis for each claim against each defendant and shall include all of the following with specificity:

1. The name, address, date of birth, marital status, occupation, smoking history, current and past worksites and current and past employers for the exposed person and any person through whom the exposed person was exposed to asbestos.

2. Each person who is knowledgeable regarding the plaintiff's exposures.

3. Each asbestos-containing product to which the person was exposed or the other person was exposed if exposure was through another person.

4. The identity of the manufacturer or seller of the specific asbestos product for each exposure.

5. The specific location and manner of each exposure, including for any person through whom the exposed person was exposed to asbestos.

6. The beginning and ending dates of each exposure and the frequency of each exposure including for any person through whom the exposed person was exposed to asbestos.

7. The specific asbestos-related disease claimed to exist.

8. Any supporting documentation relating to the information required by this subsection.

B. A plaintiff has a continuing duty to supplement the information that is required to be disclosed pursuant to subsection A of this section.

C. On motion by a defendant, the court shall dismiss a plaintiff's claim without prejudice as to any defendant whose product or premises is not identified in the required disclosures set forth in subsection A of this section.

D. On motion by a defendant, the court shall dismiss a plaintiff's claim without prejudice as to all defendants if the plaintiff fails to comply with the requirements of this section.

E. For the purposes of this section, "personal injury claim" has the same meaning prescribed in section 12-782.

Chapter 7 Special Actions and Proceedings in Which the State Is a Party

Article 1 Abatement of Bawdy Houses

§ 12-801 General definitions

In this article, unless the context otherwise requires:

1. "Person" means individuals, corporations, associations, partnerships, trustees, lessees, agents and assignees.

2. "Building" means and includes so much of any building or structure of any kind as is or may be entered through the same outside entrance.

§ 12-802 Abatement of certain nuisances

Every building or place used for the purpose of lewdness, assignation or prostitution and every building or place wherein or upon which acts of lewdness, assignation or prostitution are held or occur, is a nuisance which shall be enjoined, abated and prevented as provided by this article whether it is a public or private nuisance.

§ 12-803 Parties and scope of action

If there is reason to believe that a nuisance as defined in section 12-802 is kept, maintained or exists in any county or city and county, the county attorney of the county in the name of the people of the state or the city attorney of the city in the name of the people of the state shall, or any citizen of the state resident within the county or city and county in this citizen's own name may, maintain an action to abate and prevent the nuisance and to enjoin perpetually the person or persons conducting or maintaining the nuisance, and the owner, lessee or agent of the building or place in or upon which the nuisance exists from directly or indirectly maintaining or permitting the nuisance.

§ 12-804 Temporary injunction; affidavit and verified complaint

A. If existence of a nuisance as defined in section 12-802 is shown in the action to the satisfaction of the court or judge either by verified complaint or affidavit, the court or judge shall make a temporary restraining order to abate and prevent continuance or recurrence of the nuisance.

B. The complaint in the action shall be verified unless filed by the county attorney or the city attorney.

§ 12-805 Precedence of action; reputation of place as evidence; dismissal; substitution of plaintiffs; costs

A. When the action described in section 12-803 is filed, it shall have precedence over all actions except criminal proceedings, election contests and hearings on injunctions.

B. In the action, evidence of the general reputation of the building or place shall be admissible for the purpose of proving existence of the nuisance.

C. If the complaint is filed by a citizen, it shall not be dismissed by plaintiff or for want of prosecution except upon a sworn statement made by plaintiff and his attorney, if any, setting forth the reasons why the action should be dismissed. The dismissal may be ordered by the court.

D. In case of failure to prosecute the action with reasonable diligence, or at the request of plaintiff, the court, in its discretion, may substitute any citizen consenting thereto for plaintiff.

E. If the action is brought by a citizen and the court finds there was no reasonable ground or cause for the action, costs shall be taxed against the citizen.

§ 12-806 Order of abatement; custody of building; fees for closing of premises and sale of movable property

A. If the existence of the nuisance is established in an action as provided in this article, an order of abatement shall be entered as a part of the judgment in the action.

B. The order shall direct:

1. Removal from the building or place of all fixtures, musical instruments and movable property used in conducting, maintaining, aiding or abetting the nuisance.

2. Sale of such fixtures, musical instruments and movable property in the manner provided for sale of chattels under execution.

3. The effectual closing of the building or place to use for any purpose.

4. Keeping such building or place so closed for a period of one year unless released as provided in section 12-808.

C. While the order remains in effect as to closing and the provisions of section 12-808 are not availed of or complied with, the building or place shall be in custody of the court.

D. For removing and selling the movable property, the officer shall be entitled to charge and receive the same fees as for levying upon and selling like property on execution.

E. For closing the premises and keeping them closed, a reasonable sum shall be allowed by the court.

§ 12-807 Application of proceeds of sale; sale of building to make up deficiency

A. The proceeds of sale of the property shall be applied in the following order:

1. To the fees and costs of the removal and sale.

2. To the allowances and costs of closing and keeping the building or place closed.

3. To the payment of plaintiff's costs in the action.

4. The balance, if any, shall be paid to the owner of the property sold.

B. If the proceeds of the sale do not fully discharge all the costs, fees and allowances, the building and place shall then also be sold under execution issued upon order of the court or judge and the proceeds of the sale applied in like manner.

§ 12-808 Release of property; bond and conditions; exception

A. If the owner of the building or place has not been guilty of contempt of court in the proceedings, and appears and pays all costs, fees and allowances, which are a lien on the building or place, and files a bond in the full value of the property as ascertained by the court, with sureties to be approved by the court or judge, conditioned that he will immediately abate any such nuisance that may exist at the building or place and prevent the nuisance from being established or kept at the building or place within a period of one year thereafter, the court or judge may, if satisfied of the owner's good faith, order the premises closed under the order of abatement to be delivered to the owner, and the order of abatement cancelled so far as it relates to the property.

B. The release of the property under this section shall not release it from any judgment, lien, penalty or liability to which it is subject by law.

§ 12-809 Contempt fine as lien on premises; execution

When an act or acts constituting a contempt have been committed upon a place or building and the owner of an interest therein has been found guilty of such contempt and a fine imposed, the fine shall be a lien upon the place or building to the extent of the interest therein of the person fined. The lien shall be enforceable and collectible by execution issued by order of the court.

§ 12-810 Violation as contempt; classification

A violation or disobedience of either an injunction or order expressly provided for by this article shall be punished as a class 2 misdemeanor.

Article 1.1 Obscene Movie and Obscene Pictorial Publication Abatement

§ 12-811 Definitions

In this article, unless the context otherwise requires:

1. "Motion picture film" means any film or plate negative, film or plate positive, film or tape designed to be projected on a screen for exhibition, or films, glass slides or transparencies, either in negative or positive form, designed for exhibition by projection on a screen.

2. "Nuisance" means any place for the sale or exhibition of obscene motion picture films or pictorial publications.

3. "Obscene motion picture film or obscene pictorial publication" means any motion picture, film, video reproduction or pictorial publication which would constitute an obscene item as defined in section 13-3501.

4. "Person" means any individual, association, partnership, corporation, trustee, lessee, agent or assignee.

5. "Pictorial publication" means any book, magazine or pamphlet containing one or more drawings, pictures, photographs or illustrations.

6. "Place" means any building, enclosure or any separate part or portion thereof whether permanent or not or the ground itself.

§ 12-812 Nuisance

A. Any person who maintains, establishes or conducts a nuisance, or aids or abets therein, and the agent or lessee of any interest in any such nuisance together with the persons in control of any such nuisance by any such agent or lessee can be enjoined from maintaining a nuisance pursuant to this article.

B. Upon receiving notice pursuant to section 12-814, such persons are deemed to have knowledge of the nuisance and are liable for its maintenance.

§ 12-813 Abatement of nuisance

If a nuisance exists, the attorney general, the county attorney of the county in which such nuisance exists or the city attorney of the city in which such nuisance exists may bring an action in the name of the state to abate such nuisance and to enjoin the person maintaining the nuisance from further maintenance.

§ 12-814 Procedure in injunction action

A. An action instituted pursuant to section 12-813 shall be brought in the superior court of the county in which the property is located. At the commencement of the action a verified complaint alleging the facts constituting the nuisance shall be filed in the office of the clerk of the court.

B. After the filing of the complaint, application for a preliminary injunction may be made to the court which shall grant a hearing within twenty days after the filing. Where such application for a preliminary injunction is made, the court may, on application of the complainant, issue an ex parte restraining order, restraining the defendant from removing or in any manner interfering with any obscene motion picture film or obscene pictorial publication or other item directly related to the conduct or maintenance of the place where such nuisance is alleged to exist and which is alleged in the complaint to constitute a nuisance until further order of the court. The restraining order may be served by handing to and leaving a copy of such order with the manager or person in charge of such place. Any violation of such restraining order is a contempt of court.

C. A copy of the complaint, together with a notice of the time and place of the hearing of the application for a preliminary injunction shall be served upon the defendant at least fifteen days before such hearing.

D. Before or after the commencement of the hearing of an application for a preliminary injunction, the court on application of the defendant, may order that the trial of the action on the merits be advanced and consolidated with the hearing on the application for a preliminary injunction. Evidence which would be admissible at trial shall become a part of the record and need not be reintroduced at the trial.

E. If upon hearing the allegations of the petition it appears to the court that there is sufficient evidence to establish that a nuisance as alleged in the complaint exists and that the plaintiff is likely to prevail at the trial on the merits, the court shall issue a preliminary injunction without additional bond restraining the defendant from continuing the nuisance. Such order shall also continue in effect for such further period of the restraining order if already issued, or, if not issued, it shall include an order restraining for such period the removal or interference with any obscene motion picture film or obscene pictorial publication or other item directly related to the obscene motion picture film or obscene pictorial publication including, but not limited to, promotional material for such film or publication and printing plates used to print such publication.

§ 12-815 Priority of action; evidence; costs

A. An action instituted pursuant to this article shall have precedence over all other cases except criminal actions, election contests, injunctions, habeas corpus proceedings, temporary restraining orders and juvenile proceedings.

B. If the existence of the nuisance is established upon the trial, a judgment shall be entered which shall enjoin the defendant from further maintaining the nuisance at the place complained of and the defendant from maintaining such nuisance elsewhere. Such judgment shall also provide that the defendant reimburse the plaintiff for the plaintiff's expenses in bringing the action, including attorney's fees and court costs.

§ 12-816 Content of judgment and order

If the existence of a nuisance is admitted or established in an action pursuant to this article, an order of abatement shall be entered as a part of the judgment in the case. The order of abatement shall direct the removal from the place of the motion picture or pictorial publication found to be obscene and items directly related to such motion picture film or pictorial publication and shall direct the sheriff of the county in which the action was brought to seize and destroy such film, publication and other items directly related to such film or publication including, but not limited to, promotional material for such film or publication and printing plates used to print the publication.

§ 12-817 Civil penalty; forfeiture; accounting

A. Obscene motion picture films and obscene pictorial publications pursuant to this article are contraband and are not subject to any property rights.

B. Any and all monies received in payment for obtaining or viewing any obscene motion picture films and obscene pictorial publications are subject to forfeiture to the county in which the abatement action is brought as restitution for damages done to the public welfare, public health and public morals. Such monies may be traced to and shall be recoverable from those persons as set forth in section 12-812 who have knowledge of the nuisance, from and after the issuance of a preliminary injunction against the conduct of such persons pursuant to section 12-814.

C. Upon the issuance of a judgment pursuant to section 12-815, subsection B, the defendants named in such judgment shall make an accounting of all monies received by them in payment for obtaining or viewing obscene motion picture films or obscene pictorial publications subject to such judgment.

§ 12-818 Petition by commercial operators or qualified electors for action

If the attorney general, a county attorney or a city attorney receives a petition alleging the existence of a nuisance subject to the provisions of this article and determines that there are reasonable grounds to believe that such a nuisance exists, an action to abate such nuisance shall be brought forthwith. Such petition may be signed by only persons who operate commercial enterprises within a one-half mile radius of the location of the alleged nuisance or who are qualified electors whose voting address is within a one-half mile radius of the location of the alleged nuisance. Such petition must be signed by at least one hundred of the persons eligible to sign or fifty per cent of the persons eligible to sign, whichever is greater.

Article 2 Actions Against Public Entities or Public Employees

§ 12-820 Definitions

In this article, unless the context otherwise requires:

1. "Employee" includes an officer, director, employee or servant, whether or not compensated or part time, who is authorized to perform any act or service, except that employee does not include an independent contractor. Employee includes noncompensated members of advisory boards appointed as provided by law and leased employees.

2. "Injury" means death, injury to a person, damage to or loss of property or any other injury that a person may suffer that would be actionable if inflicted by a private person.

3. "Leased employee" means a person providing services to a public entity under a lease agreement and is not an independent contractor or temporary employee.

4. "Maintenance" means the establishment or continuation in existence of facilities, highways, roads, streets, bridges or rights-of-way by a public entity and does not mean or refer to ordinary repair or upkeep.

5. "Prisoner" means a person incarcerated while awaiting sentence or while serving a sentence imposed by a court of law.

6. "Public employee" means an employee of a public entity.

7. "Public entity" includes this state and any political subdivision of this state.

8. "State" means this state and any state agency, board, commission or department.

§ 12-820.01 Absolute immunity

A. A public entity shall not be liable for acts and omissions of its employees constituting either of the following:

1. The exercise of a judicial or legislative function.

2. The exercise of an administrative function involving the determination of fundamental governmental policy.

B. The determination of a fundamental governmental policy involves the exercise of discretion and shall include, but is not limited to:

1. A determination of whether to seek or whether to provide the resources necessary for any of the following:

(a) The purchase of equipment.

(b) The construction or maintenance of facilities.

(c) The hiring of personnel.

(d) The provision of governmental services.

2. A determination of whether and how to spend existing resources, including those allocated for equipment, facilities and personnel.

3. The licensing and regulation of any profession or occupation.

4. The establishment, implementation and enforcement of minimum safety standards for light rail transit systems.

§ 12-820.02 Qualified immunity

A. Unless a public employee acting within the scope of the public employee's employment intended to cause injury or was grossly negligent, neither a public entity nor a public employee is liable for:

1. The failure to make an arrest or the failure to retain an arrested person in custody.

2. An injury caused by an escaping or escaped prisoner or a youth committed to the department of juvenile corrections.

3. An injury resulting from the probation, community supervision or discharge of a prisoner or a youth committed to the department of juvenile corrections, from the terms and conditions of the prisoner's or youth's probation or community supervision or from the revocation of the prisoner's or youth's probation, community supervision or conditional release under the jurisdiction of the superior court.

4. An injury caused by a prisoner to any other prisoner or an injury caused by a youth committed to the department of juvenile corrections to any other committed youth.

5. The issuance of or failure to revoke or suspend any permit, license, certificate, approval, order or similar authorization for which absolute immunity is not provided pursuant to section 12-820.01.

6. The failure to discover violations of any provision of law when inspections are done of property other than property owned by the public entity in question.

7. An injury to the driver of a motor vehicle that is attributable to the violation by the driver of section 28-693, 28-1381 or 28-1382.

8. The failure to prevent the sale or transfer of a handgun to a person whose receipt or possession of the handgun is unlawful under any federal law or any law of this state.

9. Preventing the sale or transfer of a handgun to a person who may lawfully receive or possess a handgun.

10. The failure to detain a juvenile taken into temporary custody or arrested for a criminal offense or delinquent or incorrigible act in the appropriate detention facility, jail or lockup described in section 8-305.

11. An injury caused by a peace officer if the injury was caused by any act or omission while rendering emergency care at the scene of an emergency occurrence.

B. The qualified immunity provided in this section applies to a public entity or public employee if the injury or damage was caused by a contractor's employee or a contractor of a public entity acting within the scope of the contract. The qualified immunity provided in this section does not apply to the contractor or the contractor's employee.

§ 12-820.03 Affirmative defense; resolution by trial

A. A public entity or a public employee is not liable for an injury arising out of a plan or design for construction or maintenance of or improvement to transportation facilities, including highways, roads, streets, bridges or rights-of-way, if the plan or design is prepared in conformance with generally accepted engineering or design standards in effect at the time of the preparation of the plan or design and the public entity or public employee gives to the public a reasonably adequate warning of any unreasonably dangerous condition.

B. If a genuine issue of material fact exists as to whether the public entity or public employee has met the requirements of subsection A of this section, the issue shall be resolved by a trial before and separate and apart from a trial on damages.

§ 12-820.04 Punitive and exemplary damages; immunity

Neither a public entity nor a public employee acting within the scope of his employment is liable for punitive or exemplary damages.

§ 12-820.05 Other immunities

(Eff. until 1/1/28)

A. Except as specifically provided in this article, this article does not affect, alter or otherwise modify any other rules of tort immunity regarding public entities and public officers as developed at common law and as established under the statutes and the constitution of this state.

B. A public entity is not liable for losses that arise out of and are directly attributable to an act or omission determined by a court to be a criminal felony by a public employee unless the public entity knew of the public employee's propensity for that action. This subsection does not apply to acts or omissions arising out of either of the following:

1. The operation or use of a motor vehicle.

2. A sexual offense if the victim is a minor or a child with a disability as defined in section 15-761 and either of the following conditions exist:

(a) The public entity was in violation of a statutory duty relating to obtaining information regarding the background of employees.

(b) The public entity or public employee had a statutory duty to report and failed to do so.

C. A public entity is not liable for damages as a result of an injury caused by any act or omission by a public officer who renders emergency care gratuitously and in good faith in a public building, at a public gathering on the grounds of a public building or at the scene of an emergency occurrence or as the result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person, unless the public officer, while rendering the emergency care, is guilty of gross negligence.

§ 12-820.05 (Version 2) Other immunities

(Eff. 1/1/28)

A. Except as specifically provided in this article, this article does not affect, alter or otherwise modify any other rules of tort immunity regarding public entities and public officers as developed at common law and as established under the statutes and the constitution of this state.

B. A public entity is not liable for losses that arise out of and are directly attributable to an act or omission determined by a court to be a criminal felony by a public employee unless the public entity knew of the public employee's propensity for that action. This subsection does not apply to acts or omissions arising out of the operation or use of a motor vehicle.

C. A public entity is not liable for damages as a result of an injury caused by any act or omission by a public officer who renders emergency care gratuitously and in good faith in a public building, at a public gathering on the grounds of a public building or at the scene of an emergency occurrence or as the result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person, unless the public officer, while rendering the emergency care, is guilty of gross negligence.

§ 12-820.08 Potable water systems; standard of care

With regard to actions for personal injury arising out of the use or consumption of water, water shall be deemed reasonably safe and fit for consumption and use if it complies with the more stringent of the primary maximum contaminant levels that are established either pursuant to title 49, chapter 2, article 9, or to the safe drinking water act (P.L. 93-523; 83 Stat. 1666; 42 United States Code section 201).

§ 12-820.09 Transportation, distribution or use of remediated water; definitions

A. For a personal injury or property damage action that arises out of the transportation, distribution or use of remediated water, remediated water is deemed reasonably safe and fit for consumption and use and the provider or user is deemed to have acted reasonably if any of the following applies:

1. The remediated water complies with applicable state or federal standards.

2. The remediation has been conducted pursuant to an approved remedial action plan under the water quality assurance revolving fund program established pursuant to title 49, chapter 2, article 5.

3. The remediation has been conducted pursuant to an approved consent decree under the comprehensive environmental response, compensation, and liability act of 1980, as amended (P.L. 96-510; 94 Stat. 2767; 42 United States Code sections 9601 through 9657).

B. For purposes of this section:

1. "Provider" means an owner or operator of a constructed water conveyance system that conveys water for industrial, municipal, agricultural or irrigation purposes.

2. "User" means an entity that accepts remediated water and uses that water for industrial, municipal, agricultural or irrigation purposes.

§ 12-820.10 Unmanned aircraft operator; immunity; definitions

A. A public entity or public employee is not liable to an unmanned aircraft operator for any injury to personal property caused by a peace officer intercepting, capturing, disabling, shooting, destroying or otherwise rendering inoperative an unmanned aircraft within fifteen miles of this state's international border if the peace officer had reasonable suspicion that the unmanned aircraft was being used to commit a violation of title 13, chapter 23, 34 or 34.1.

B. For the purposes of this section:

1. "Unmanned aircraft" has the same meaning prescribed in section 13-3729.

2. "Unmanned aircraft operator":

(a) Means a person who operates an unmanned aircraft.

(b) Includes the owner of an unmanned aircraft and any person or group of persons acting in concert with the person who operates the unmanned aircraft.

§ 12-821 General limitation; public employee

All actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not afterward.

§ 12-821.01 Authorization of claim against public entity, public school or public employee

A. Persons who have claims against a public entity, public school or a public employee shall file claims with the person or persons authorized to accept service for the public entity, public school or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues. The claim shall contain facts sufficient to permit the public entity, public school or public employee to understand the basis on which liability is claimed. The claim shall also contain a specific amount for which the claim can be settled and the facts supporting that amount. Any claim that is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon.

B. For the purposes of this section, a cause of action accrues when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage.

C. Notwithstanding subsection A, any claim that must be submitted to a binding or nonbinding dispute resolution process or an administrative claims process or review process pursuant to a statute, ordinance, resolution, administrative or governmental rule or regulation, or contractual term shall not accrue for the purposes of this section until all such procedures, processes or remedies have been exhausted. The time in which to give notice of a potential claim and to sue on the claim shall run from the date on which a final decision or notice of disposition is issued in an alternative dispute resolution procedure, administrative claim process or review process. This subsection does not prevent the parties to any contract from agreeing to extend the time for filing such notice of claim.

D. Notwithstanding subsection A, a minor or an insane or incompetent person may file a claim within one hundred eighty days after the disability ceases.

E. A claim against a public entity or public employee filed pursuant to this section is deemed denied sixty days after the filing of the claim unless the claimant is advised of the denial in writing before the expiration of sixty days.

F. This section applies to all causes of action that accrue on or after July 17, 1994.

G. If a genuine issue of material fact exists as to whether the requirements of this section have been complied with, the issue shall be resolved before a trial on the merits and at the earliest possible time.

H. This section does not apply to any claim for just compensation pursuant to chapter 8, article 2.1 of this title.

§ 12-822 Change of venue

A. Service of summons in an action against any public entity or public employee involving acts that are alleged to have occurred within the scope of the public employee's employment shall be made pursuant to Arizona rules of civil procedure.

B. In an action against this state upon written demand of the attorney general, made at or before the time of answering, served upon the opposing party and filed with the court where the action is pending, the place of trial of any such action shall be changed to Maricopa county.

§ 12-823 Judgment for plaintiff; amount; interest and costs

If judgment is rendered for the plaintiff, it shall be for the amount actually due from the public entity to the plaintiff, with legal interest thereon from the time the obligation accrued and with court costs.

§ 12-826 Report of judgments to legislature by governor; payment

A. The governor shall report to the legislature at each session judgments rendered against the state, and not theretofore reported.

B. The director of the department of administration shall draw his warrant for payment of the judgment upon presentation to him of an authenticated copy of the judgment together with the approval of the judgment by the attorney general.

C. The director of the department of administration shall not draw the warrant until an appropriation therefor is made by the legislature.

Article 4 Contempt of Court

§ 12-861 Criminal contempt defined

A person who wilfully disobeys a lawful writ, process, order or judgment of a superior court by doing an act or thing therein or thereby forbidden, if the act or thing done also constitutes a criminal offense, shall be proceeded against for contempt as provided in sections 12-862 and 12-863.

§ 12-862 Order to show cause; service; return; attachment of person or sequestration of property

A. When it appears to the superior court by the return of a proper officer on lawful process, or upon affidavit of some credible person, or by information filed by the county attorney, that there is reasonable ground to believe that a person is guilty of the disobedience described in section 12-861, the court may order the person so charged to show cause at the time and place the court directs why he should not be punished for such disobedience.

B. The order, with a copy of the affidavit or information, shall be served upon the person charged within sufficient time to enable him to prepare and make return to the order, and if by the return the alleged contempt is not purged, a trial shall be directed at a time fixed by the court.

C. If the person allegedly in contempt fails or refuses to make return to the order, a warrant of arrest may issue directing the sheriff or any constable of the county where the person charged resides or may be found, to arrest him and bring him before the court at a time and place directed by the court, and such person may be required to give bail for his attendance at the trial and his submission to final judgment of the court.

D. If accused is a corporation, an attachment for sequestration of its property may be issued upon refusal or failure to answer.

§ 12-863 Trial; classification; appeal

A. The trial as provided in section 12-862 may be by the court, or, upon demand of the person allegedly in contempt, shall be by a jury as upon a trial for a misdemeanor.

B. Any person found in contempt is guilty of a class 2 misdemeanor.

C. The fine shall be paid to the clerk of the court, or to the party injured by the act constituting the contempt, or may be apportioned where more than one party is damaged.

D. An appeal may be taken as in criminal cases and the appeal shall stay execution of the sentence and the person found guilty of contempt, if sentenced to imprisonment, shall be admitted to bail.

§ 12-864 Direct or constructive contempts; punishment

Contempts committed in the presence of the court or so near thereto as to obstruct the administration of justice, and contempts committed by failure to obey a lawful writ, process, order, judgment of the court, and all other contempts not specifically embraced within this article may be punished in conformity to the practice and usage of the common law.

§ 12-864.01 Proof of contempt of court

A. If a person is ordered to pay child support and there is proof that the person has failed to comply with the order together with proof that the order was made and was filed and served on that person or proof that the person was present in court at the time the order was made, then the court may presume that the person is in contempt of court.

B. The respondent may affirmatively defend and prove that the respondent is unable to comply with the court order.

C. A person found in contempt of court pursuant to this section has the burden to prove by a preponderance of the evidence that the person is unable to purge the contempt order as prescribed by the court.

§ 12-865 One year limitation on contempt proceeding; contempt proceeding no bar to criminal prosecution

A. No proceeding for contempt shall be instituted against any person unless begun within one year from the date of the act complained of.

B. The proceeding for contempt or a satisfied judgment thereon shall not bar a criminal prosecution for the same act.

Article 5 Escheat

§ 12-881 Conditions under which property escheats

If the owner of property, without devise thereof and having no heirs, is absent from his domicile for five years successively and is not known to exist, the estate shall escheat to and vest in the state.

§ 12-882 Duty of department of revenue regarding escheats; complaint and parties

A. When the director of the department of revenue has reason to believe that property or estate has escheated to the state, he shall file a complaint in behalf of the state in the superior court of the county where such property or some part thereof is situated, setting forth:

1. A description of the property or estate.

2. The name of the person last lawfully seized or possessed thereof.

3. The names of tenants or persons in actual possession, if any, and the names of persons claiming the property or estate, if any are known to claim it.

4. The facts and circumstances in consequence of which such property or estate is claimed to have escheated.

5. A prayer for a writ of possession for the property or estate in behalf of the state.

B. The tenants or persons in actual possession of the property or estate, and the persons claiming it, or any right, title or interest therein, shall be named parties defendant in the complaint.

§ 12-883 Summons; service and publication

Upon filing of the complaint described in section 12-882, a summons shall issue, service thereof shall be made and the summons shall also be published in a newspaper in the manner and for the time provided for the service of summons in a civil action by publication, and the action shall proceed as other civil actions.

§ 12-884 Judgment and costs

A. If upon the trial it appears that the state has good title to all or any part of the property or estate described in the complaint, judgment shall be given that the state is seized or possessed thereof. A judgment for the state shall contain a description of the property and shall vest the title thereof in the state.

B. If it appears that the state has no title, judgment shall be rendered dismissing the action, and the court may award costs to defendant.

§ 12-885 Seizure and sale of escheated property; disposal of proceeds; exception

A. A writ shall be issued to the sheriff or a constable of the county where the property is situated, commanding the sheriff or constable to seize the property vested in the state.

B. Except for personal property transferred to the Arizona state library, archives and public records under section 41-151.21, the officer shall dispose of the property at public auction in the manner provided by law for sale of property under execution. The proceeds of the sale shall be paid to the department of revenue and deposited, pursuant to sections 35-146 and 35-147, into a clearing account from which payment of claims for the proceeds may be made. The proceeds shall remain in the clearing account for twelve months and then shall be credited to the permanent state school fund.

C. The director of the department of revenue shall keep accounts and records of all such proceeds paid into the clearing account and of all such lands vested in the state.

§ 12-886 Claim by heir, devisee or owner of proceeds from sale of escheated property

If a person appears and claims any of the proceeds from the sale of escheated property as an heir or devisee, or as the owner who was absent for five years, he may file a claim to the proceeds with the department of revenue on a form prescribed by the department. A person has seven years from the time of sale of the escheated property to file a claim with the department of revenue for the proceeds.

§ 12-887 Determination of claims; appeal

A. The department of revenue shall consider any claim filed under section 12-886 and may hold a hearing and receive evidence concerning it. If a hearing is held, the department of revenue shall prepare a finding and a decision in writing on each claim filed, stating the substance of any evidence heard by the department and the reasons for its decision. The decision is a public record.

B. If the claim is allowed, the department shall make payment immediately.

C. Any person aggrieved by a decision of the department of revenue or on whose claim the department has failed to act within ninety days after the filing of the claim may commence an action in the superior court to establish the claim. The proceeding shall be brought within ninety days after the decision of the department or within one hundred eighty days from the filing of the claim if the department fails to act.

§ 12-888 Concurrent authority of the department of revenue

A. The department of revenue shall have concurrent authority with the department of law as prescribed by subsection C of section 41-193.

B. The department of revenue shall institute investigations for discovery of property which may have escheated or would escheat to the state, and for such purpose, through the department of law, may require any person before the superior court to answer investigations, produce books and render accounts relating to the property. The director of the department of revenue, through the department of law, may institute action in the superior court of the county in which the property is located for recovery of escheats.

§ 12-889 Escheated property; rules and regulations; salary

A. The department of revenue shall administer the provisions of this article.

B. The department of revenue may promulgate necessary rules and regulations to carry out the provisions of this article.

§ 12-890 Agreement to recover property

A. A written, signed agreement to pay for the recovery or for assistance in the recovery of property under this article is unenforceable if the fee or payment agreed on exceeds thirty per cent of the value of the recoverable property.

B. Nothing in this section shall be construed to prevent an owner from asserting, at any time, that a written, signed agreement to recover property is based on excessive or unjust consideration.

Article 6 Judicial Review of Administrative Decisions

§ 12-901 Definitions

In this article, unless the context otherwise requires:

1. "Administrative agency" or "agency" means every agency, board, commission, department or officer authorized by law to exercise rule-making powers or to adjudicate contested cases, whether created by constitutional provision or legislative enactment. Except as provided in section 33-1905, administrative agency or agency does not include an agency in the judicial or legislative departments of the state government, any political subdivision or municipal corporation or any agency of a political subdivision or municipal corporation.

2. "Administrative decision" or "decision" means any decision, order or determination of an administrative agency that is rendered in a case, that affects the legal rights, duties or privileges of persons and that terminates the proceeding before the administrative agency. In all cases in which a statute or a rule of the administrative agency requires or permits an application for a rehearing or other method of administrative review, and an application for a rehearing or review is made, no administrative decision of such agency is final as to the party applying for the rehearing or review until the rehearing or review is denied or the decision on rehearing or review is rendered. Administrative decision or decision does not include either:

(a) Rules, standards or statements of policy of general application issued by an administrative agency to implement, interpret or make specific the legislation enforced or administered by it unless the rule, standard or statement of policy is involved in a proceeding before the agency and its applicability or validity is in issue in the proceeding.

(b) Rules concerning the internal management of the agency and not affecting private rights or interests.

§ 12-902 Scope of article

A. This article applies to and governs:

1. Every action to judicially review a final decision of an administrative agency except public welfare decisions pursuant to title 46, or if the act creating or conferring power on an agency or a separate act provides for judicial review of the agency decisions and prescribes a definite procedure for the review.

2. An action to review the decision at an administrative hearing as otherwise provided by statute.

B. Unless review is sought of an administrative decision within the time and in the manner provided in this article, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of the decision. If under the terms of the law governing procedure before an agency an administrative decision becomes final because of failure to file any document in the nature of an objection, protest, petition for hearing or application for administrative review within the time allowed by the law, the decision is not subject to judicial review under the provisions of this article except for the purpose of questioning the jurisdiction of the administrative agency over the person or subject matter.

§ 12-903 Power of supreme court to make procedural rules

The supreme court may make rules of pleading, practice and procedure supplementary to but not inconsistent with the provisions of this article, and to amend such rules, for the purpose of making this article effective for the convenient administration of justice, and simplifying procedure so far as it affects judicial review of administrative decisions.

§ 12-904 Commencement of action; transmission of record

A. An action to review a final administrative decision shall be commenced by filing a notice of appeal within thirty-five days from the date when a copy of the decision sought to be reviewed is served upon the party affected. The method of service of the decision shall be as provided by law governing procedure before the administrative agency, or by a rule of the agency made pursuant to law, but if no method is provided a decision shall be deemed to have been served when personally delivered or mailed by certified mail to the party affected at the party's last known residence or place of business. Service is complete on personal service or five days after the date that the final administrative decision is mailed to the party's last known address. The notice of appeal shall identify the final administrative decision sought to be reviewed and include a statement of the issues presented for review. The statement of an issue presented for review is deemed to include every subsidiary issue fairly comprised in the statement.

B. Within ten days after filing a notice of appeal pursuant to this article, the party seeking judicial review shall file a notice of the action with the office of administrative hearings or the agency that conducted the hearing, and the office of administrative hearings or the agency that conducted the hearing shall transmit the record to the superior court. The record shall consist of the following:

1. The original agency action from which review is sought.

2. Any motions, memoranda or other documents submitted by the parties to the appeal.

3. Any exhibits admitted as evidence at the administrative hearing.

4. The decision by the administrative law judge and any revisions or modifications to the decision.

5. A copy of the transcript of the administrative hearing, if the party seeking judicial review desires a transcript to be included in the record and provides for preparation of the transcript at the party's own expense. Any other party may have a transcript included in the record by filing a notice with the office of administrative hearings or the agency that conducted the hearing within ten days after receiving notice of the notice of appeal and providing for preparation of the transcript at the party's own expense.

§ 12-905 Jurisdiction and venue

A. Jurisdiction to review final administrative decisions is vested in the superior court.

B. If the venue of the action to review a final administrative decision is expressly prescribed in the statute under authority of which the decision was made, such venue shall control, but if the venue is not prescribed, an action to review a final administrative decision may be commenced in the superior court of any county in which any of the following conditions obtains:

1. Any part of the hearing or proceeding culminating in the decision of the administrative agency was held.

2. Any part of the subject matter involved is situated.

3. Any part of the transaction giving rise to the proceedings before the agency occurred.

§ 12-906 Service of process

In an action to review the decision of an administrative agency, a copy of the notice of appeal shall be served pursuant to rule 4 of the rules of civil procedure, on the agency at its principal office and on all other parties to the proceeding before the agency.

§ 12-907 Appearance of parties to the appeal

Within twenty days after service of the notice of appeal, the appellee agency and all other appellees shall file a notice of appearance in response to the notice of appeal. All subsequent filings shall be made as provided by section 12-914.

§ 12-908 Parties

A. In an action to review a final decision of an administrative agency, the agency and all persons, other than the appellant, who are parties of record in the proceedings may appear in the proceedings before the superior court as appellees.

B. If the administrative hearing is held before the office of administrative hearings, the office of administrative hearings is not a party of record in the proceedings and is not to be named as a party in the notice of appeal or to appear as a party in the appellate proceedings before the court unless otherwise required by law or order of the court. For the purposes of this section, the office of administrative hearings includes the director of the office of administrative hearings and the administrative law judge.

§ 12-909 Pleadings and record on review

A. The notice of appeal shall contain a statement of the findings and decision or part of the findings and decision sought to be reviewed.

B. Notwithstanding section 12-904, subsection B, by order of the court or by stipulation of all parties to the action, the record may be shortened or supplemented.

C. If the cause is remanded to the administrative agency and a review thereafter is sought of the administrative decision, the original and supplemental record, or so much thereof as is determined by court order or stipulation of all the parties, shall constitute the record on review.

§ 12-910 Scope of review

A. An action to review a final administrative decision shall be heard and determined with convenient speed. If requested by a party to an action within thirty days after filing a notice of appeal, the court shall hold an evidentiary hearing, including testimony and argument, to the extent necessary to make the determination required by subsection F of this section. The court may hear testimony from witnesses who testified at the administrative hearing and witnesses who were not called to testify at the administrative hearing.

B. Relevant and admissible exhibits and testimony that were not offered during the administrative hearing shall be admitted, and objections that a party failed to make to evidence offered at the administrative hearing shall be considered, unless either of the following is true:

1. The exhibit, testimony or objection was withheld for purposes of delay, harassment or other improper purpose.

2. Allowing admission of the exhibit or testimony or consideration of the objection would cause substantial prejudice to another party.

C. For review of final administrative decisions of agencies that are exempt from sections 41-1092.03, 41-1092.04, 41-1092.05, 41-1092.06, 41-1092.07, 41-1092.08, 41-1092.09, 41-1092.10, and 41-1092.11, pursuant to section 41-1092.02, the trial shall be de novo if trial de novo is demanded in the notice of appeal or motion of an appellee other than the agency and if a hearing was not held by the agency or the proceedings before the agency were not stenographically reported or mechanically recorded so that a transcript might be made. On demand of any party, if a trial de novo is available under this section, it may be with a jury, except that a trial of an administrative decision under section 25-522 shall be to the court.

D. For review of final administrative decisions of agencies that regulate a profession or occupation pursuant to title 32, title 36, chapter 4, article 6, title 36, chapter 6, article 7 or title 36, chapter 17, the trial shall be de novo if trial de novo is demanded in the notice of appeal or motion of an appellee other than the agency.

E. The record in the superior court shall consist of the record of the administrative proceeding, and the record of any evidentiary hearing, or the record of the trial de novo.

F. After reviewing the administrative record and supplementing evidence presented at the evidentiary hearing, the court may affirm, reverse, modify or vacate and remand the agency action. The court shall affirm the agency action unless the court concludes that the agency's action is contrary to law, is not supported by substantial evidence, is arbitrary and capricious or is an abuse of discretion. In a proceeding brought by or against the regulated party, the court shall decide all questions of law, including the interpretation of a constitutional or statutory provision or a rule adopted by an agency, without deference to any previous determination that may have been made on the question by the agency. In a proceeding brought by or against the regulated party, the court shall decide all questions of fact without deference to any previous determination that may have been made on the question by the agency. Notwithstanding any other law, this subsection applies in any action for judicial review of any agency action that is authorized by law.

G. Notwithstanding subsection F of this section, if the action arises out of title 20, chapter 15, article 2, the court shall affirm the agency action unless after reviewing the administrative record and supplementing evidence presented at the evidentiary hearing the court concludes that the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion.

H. This section does not apply to any agency action pursuant to title 40, chapter 2, article 5 or 6.2.

§ 12-911 Powers of superior court

A. The superior court may:

1. With or without bond, unless required by the statute under authority of which the administrative decision was entered, and before or after the filing of the notice of appearance, stay the decision in whole or in part pending final disposition of the case, after notice to the agency and for good cause shown, except that the court shall not stay an administrative decision wherein unemployment compensation benefits have been allowed to a claimant pursuant to title 23, chapter 4.

2. Make any order that it deems proper for the amendment, completion or filing of the record of the proceedings of the administrative agency.

3. Allow substitution of parties by reason of marriage, death, bankruptcy, assignment or other cause.

4. Dismiss parties or realign parties appellant and appellee.

5. Modify, affirm or reverse the decision in whole or in part.

6. Specify questions or matters requiring further hearing or proceedings and give other proper instructions.

7. When a hearing has been held by the agency, remand for the purpose of taking additional evidence when from the state of the record of the administrative agency or otherwise it appears that such action is just.

8. In the case of affirmance or partial affirmance of an administrative decision requiring payment of money, enter judgment for the amount justified by the record and for costs, on which execution may issue.

B. Technical errors in the proceedings before the administrative agency or its failure to observe technical rules of evidence shall not constitute grounds for reversal of the decision, unless it appears to the superior court that the error or failure affected the rights of a party and resulted in injustice to him.

C. On motion of a party before rendition of judgment, the superior court shall make findings of fact and state conclusions of law on which its judgment is based.

§ 12-912 Costs

Costs may be awarded to the appellee agency if a judgment adverse to the appellant is rendered. Such costs may be awarded in an amount deemed reasonable by the superior court, based on the expense the appellee agency has incurred in preparing the record of the proceedings before judicial review.

§ 12-913 Appellate review

The final decision, order, judgment or decree of the superior court entered in an action to review a decision of an administrative agency may be appealed to the supreme court.

§ 12-914 Rules of procedure

A. Where applicable, the rules of procedure for judicial review of administrative decisions in superior courts, including rules relating to appeals to the supreme court, shall apply to all proceedings except as otherwise provided in this article, except in cases in which the superior court has conducted a trial de novo pursuant to section 12-910.

B. The rules of civil procedure apply to all proceedings in which the superior court orders a trial de novo pursuant to section 12-910.

Article 6.1 Right of Intervention

§ 12-921 Proceedings involving initiative or referendum measures; standing to intervene; attorney fees or costs

A. In any proceeding in which the constitutionality, legality or application of a law that was enacted through an initiative is at issue, the official initiative proponent, whether an individual, a group of individuals or an organization, that wishes to defend the law shall have the right to intervene as a party and is deemed to have proper standing in the matter.

B. In any proceeding in which the constitutionality, legality or application of a law that was enacted through a referendum is at issue, the legislator who was the first prime sponsor of the referendum and who wishes to defend the law shall have the right to intervene as a party and is deemed to have proper standing in the matter.

C. The only objection that may be raised to a motion to intervene as of right pursuant to this section is that the proposed intervenor does not have a good faith intention to defend the law. Any party or proposed intervenor may raise this objection.

D. A party who intervenes to defend a law pursuant to this section is not liable for attorney fees or costs of any party who is challenging the constitutionality, legality or application of the law.

Article 7 Stay of Proceedings Under Statute or Order Claimed Unconstitutional

§ 12-931 Proceeding in state court; stay, hearing and precedence of appeal

A. When a proceeding is begun in a court in this state for the purpose of enforcing a statute of the state or an administrative order of a board, commission, or other agency of the state, and in defense thereto the assertion is made that the statute or administrative order is unconstitutional and invalid, the court in which the defensive proceeding is begun may grant a stay of all other proceedings under the statute or order by any state officer or officers pending determination of such defensive proceeding.

B. The defensive proceeding, and an appeal therefrom, shall be given precedence, and expedited in every way, and shall be assigned for hearing at the earliest practicable day.

§ 12-932 Proceeding in federal court; jurisdiction of state court; stay, notice and precedence of appeal

A. When an action praying for a preliminary injunction is begun in a federal district court to restrain an official or officials of this state from enforcing or administering a statute or administrative order of this state, or to set aside or enjoin such statute or administrative order, any defendant in the action, or the attorney general of the state, may bring an action to enforce the statute or order in the superior court of the state at any time before final hearing on the application for an injunction in the action in the federal court, and jurisdiction is conferred upon the superior court of this state, and on the supreme court on appeal, to entertain such action.

B. The superior court shall, when the action is brought, grant a stay of proceedings by any state officer or officers under such statute or order, pending determination of the action in the courts of the state and the superior court shall, upon the bringing of such action therein, at once cause a notice thereof, together with a copy of the stay order, to be filed in the federal district court in which the action was originally begun.

C. The action in the superior court, and an appeal therefrom, shall be given precedence, expedited in every way, and shall be assigned for hearing at the earliest practicable day.

Article 8 Unclaimed Property in Hands of Public Agency

§ 12-940 Definitions

In this article, unless the context otherwise requires:

1. "Dispose" means the transfer of property by its return to the owner, sale, conversion or destruction or by any other means of disposal.

2. "Evidence" means property that is held for possible presentation in a judicial or administrative proceeding to establish the truth or falsity of an alleged matter of fact.

3. "Found property" means recovered, lost, surrendered, abandoned or otherwise received property that is turned over to a public agency where the owner may or may not be known and that is not classified as evidence.

4. "Property" means any item, including currency, that is held for safekeeping or as evidence or found property or that has been abandoned, unclaimed or awarded by the court.

5. "Property value" means the reasonable value of the property in its present condition.

6. "Safekeeping" means storage of an asset or item of value by a public agency that is not classified as evidence and that belongs to a known individual.

§ 12-941 Disposal of certain unclaimed property in the custody of a state, county, city or town agency

A. A state, county, city or town agency shall dispose of all property that was used as evidence and that remains unclaimed in the hands of the agency, after final disposition of the cause in which so used, or that was seized by a peace officer as being used unlawfully or for an unlawful purpose and that was held unclaimed from the date of seizure, or that came into the hands of the agency as unclaimed or contraband. A law enforcement agency may retain and use those items that have a useful value to that law enforcement agency.

B. Found property turned over to a state, county, city or town agency may be returned to the person who found and turned it over if all of the following conditions apply:

1. The property is not contraband or a firearm.

2. The property remains unclaimed for thirty days after reasonable efforts have been made to locate and notify the owner.

3. The person who found and turned over the property is not a public officer or employee of the federal, a state or a local government who found the property in the course of performing the duties of the office or employment.

C. If United States currency is delivered to the proper agency pursuant to subsection A of this section, it shall be deposited in the general fund of the state, county, city or town, as the case may be.

D. A record of all transactions shall be maintained for at least twenty-four months.

§ 12-942 Disposal of property unclaimed for thirty days

A. If property described in section 12-941 is not claimed and taken away by the owner within thirty days after the time it has been delivered to the agency pursuant to section 12-941, the agency may at any time thereafter proceed to dispose of it in the manner provided in this article.

B. If property described in section 12-941 is not claimed by the finder within thirty days after notice to the finder that the property is available to claim, the agency may at any time thereafter proceed to dispose of it in the manner provided in this article.

§ 12-943 Authorized dispositions

All property that is described in section 12-941 and that is in the possession of a state, county, city or town agency may only be disposed of pursuant to this article.

§ 12-944 Owner receipt; publication of property valued at more than one hundred fifty dollars

A. If an agency takes any property from a person, the agency shall provide the person with a detailed receipt for the property. The receipt shall contain a notice to the person on how to retrieve the property from the agency.

B. If the owner of found property that has a value of more than one hundred fifty dollars is not known, the agency holding the property shall publish or post a notice containing a description of the property before the final disposal of the property.

§ 12-945 Sale of property

A. If after thirty days' notice has been given the owner or person entitled to the property has not taken it away, the property may be sold. The proceeds shall be paid to the general fund of the jurisdiction from which the unclaimed property was received.

B. Notwithstanding subsection A of this section, if the property is a firearm, the agency shall sell the firearm to any business that is authorized to receive and dispose of the firearm under federal and state law and that shall sell the firearm to the public according to federal and state law, unless the firearm is otherwise prohibited from being sold under federal and state law. A law enforcement agency may trade a firearm that it has retained to a federal firearms licensed business for ammunition, weapons, equipment or other materials to be exclusively used for law enforcement purposes.

Article 9 Medical Care Cost Recovery

§ 12-961 Definitions

In this article, unless the context otherwise requires:

1. "Medical care and treatment" includes hospital, medical, psychological, surgical and dental care, ambulance services, prostheses, medical appliances and supplies, pharmaceutical supplies, occupational therapy and physical therapy.

2. "Third person" includes any governmental entity, corporation, company, partnership, firm, association, society and a natural person.

§ 12-962 Recovery of cost of medical care

A. If this state or any of its political subdivisions provides medical care and treatment to a person who is injured or suffers from a disease under circumstances creating tort liability upon a third person, the state or political subdivision, either jointly or severally, may recover from the third person or the injured or diseased person the reasonable value of the medical care and treatment. To the extent of this right, this state or a political subdivision is subrogated to the injured or diseased person or the person's guardian, personal representative, estate, dependents or survivors with reference to any right or claim they might have against the third person. The head of the department or agency furnishing the medical care or treatment may require the injured or diseased person or the person's guardian, personal representative, estate, dependents or survivors to assign the claim or cause of action against the third person to the extent of the reasonable value of the medical care or treatment.

B. To enforce this right, the state or political subdivision may do the following:

1. Intervene or join in any action or proceeding brought by the injured or diseased person or the person's guardian, personal representative, estate, dependents or survivors against the third person who is liable for the injury or disease.

2. If an action or proceeding is not brought by the injured or diseased person, or the person's guardian, personal representative, estate, dependents or survivors within six months after the first day on which the medical care and treatment were furnished, institute and prosecute legal proceedings against the third person who is liable for the injury or disease for which the medical care and treatment were furnished. The action or proceeding may be brought in state or federal court, either in the name of the state or political subdivision, or in the name of the injured or diseased person or the person's guardian, personal representative, estate, dependents or survivors, or in conjunction with the injured or diseased person or the person's guardian, personal representative, estate, dependents or survivors.

3. Recover the cost of care from the injured or diseased person or the person's estate to the extent that such person has received money in settlement of the claim or satisfaction of a judgment against the third party.

C. If an action or proceeding is brought in the name of the state or political subdivision pursuant to subsection B, paragraph 2, the injured or diseased person or the person's guardian, personal representative, estate, dependents or survivors shall not be required to join the action or proceeding.

§ 12-963 Compromise or waiver of claim

A. This state or any of its political subdivisions required by law to furnish medical care and treatment may either:

1. Compromise, or settle and execute a release of, any claim which it has pursuant to section 12-962.

2. Waive any claim it has pursuant to section 12-962 in whole or in part either for its convenience or if it determines that collection would result in undue hardship upon the person who suffered the injury or disease resulting in care and treatment.

B. Actions taken by this state or a political subdivision in connection with the rights afforded under this article shall not operate to deny the injured or diseased person any recovery for that portion of his damage not covered by this article. A release executed by the state or any of its political subdivisions shall not release a third party from any claims of the injured or diseased person except that the third party shall be entitled to offset amounts paid to the state or political subdivision if such expenses are included in the claim of the injured or diseased person.

§ 12-964 Limitation

This article does not affect any other provision of law providing for recovery by this state or any of its political subdivisions of the cost of care and treatment described in section 12-962.

Article 10 Liability for Emergency Services

§ 12-971 Definitions

In this article, unless the context otherwise requires:

1. "Extraordinary emergency services" means:

(a) The actual and related costs of additional police, fire fighting, public works, paramedic and medical personnel utilized other than those who are normally on duty; and

(b) The actual costs of rented or leased equipment reasonably needed by the state or political subdivision in responding to the emergency; and

(c) The actual or replacement costs of chemicals or disposable materials utilized in responding to the emergency; and

(d) Costs incurred in the evacuation or reasonable temporary housing of persons displaced from their property by the emergency.

2. "Hazardous material" means a substance which has been determined by the United States department of transportation under title 49, Code of Federal Regulations, to be capable of posing an unreasonable risk to health, safety and property if transported in commerce.

3. "Hazardous substance" means a material, and its mixtures or solutions, which has been determined by the United States department of transportation under title 49, Code of Federal Regulations, to be capable of posing an unreasonable risk to health, safety and property if transported in commerce.

4. "Hazardous waste" means any material that is subject to the hazardous waste manifest of the department of health services or the United States environmental protection agency.

§ 12-972 Liability for emergency services

A. A person is liable to this state or a political subdivision of this state for extraordinary emergency services which are reasonably required as a result of the person's negligence or intentional misconduct in the use, storage or transportation of hazardous materials, hazardous substances or hazardous waste.

B. The provisions of this article shall not be construed as to limit the liability of any person under other provisions of law.

Article 11 Actions Against Volunteers

§ 12-981 Definitions

In this article, unless the context otherwise requires:

1. "Governmental entity" means a county, municipality, school district, chartered unit or subdivision, a governmental unit or other special district or similar entity or any association, authority, board, commission, division, office, officer, task force or other agency of this state.

2. "Hospital" means a health care facility, whether organized for profit or not, which provides medical services, nursing services, health screening services, other health-related services or supervisory care services.

3. "Nonprofit corporation" means a corporation that is exempt from taxation pursuant to section 501(a) of the internal revenue code.

4. "Nonprofit organization" means an organization that is exempt from taxation pursuant to section 501(c) of the internal revenue code.

5. "Volunteer" means a person who performs services for a nonprofit corporation or nonprofit organization, hospital or governmental entity without compensation other than reimbursement of actual expenses incurred. The term includes a volunteer who serves as a director, officer, trustee or direct service volunteer.

§ 12-982 Qualified immunity; insurance coverage

A. A volunteer is immune from civil liability in any action based on an act or omission of a volunteer resulting in damage or injury if:

1. The volunteer acted in good faith and within the scope of the volunteer's official functions and duties for a nonprofit corporation or nonprofit organization, hospital or governmental entity.

2. The damage or injury was not caused by wilful, wanton or grossly negligent misconduct by the volunteer.

B. Notwithstanding subsection A of this section, in any suit against a nonprofit corporation or nonprofit organization, hospital or governmental entity for civil damages based on the negligent act or omission of a volunteer, proof that the act or omission was within the scope of the volunteer's official functions and duties is sufficient to establish the vicarious liability, if any, of the organization.

C. A motor vehicle liability policy, as defined in section 28-4001, which provides coverage to the operator of a motor vehicle is subject to the following provisions which need not be contained in the policy. The liability of the insurance carrier with respect to the insured and any other person using the vehicle with the express or implied permission of the insured shall extend to provide excess coverage for a nonprofit corporation or nonprofit organization for the acts of the operator in operating a motor vehicle at all times when the operator is acting as a volunteer for that nonprofit corporation or nonprofit organization.

Article 12 Abatement of Crime Property

§ 12-991 Nuisance; applicability; residential property used for crime; action to abate and prevent; notice; definitions

A. Residential property that is regularly used in the commission of a crime is a nuisance, and the criminal activity causing the nuisance shall be enjoined, abated and prevented.

B. If there is reason to believe that a nuisance as described in subsection A of this section exists, the attorney general, the county attorney, the city attorney, an association of homeowners or property owners established by a recorded contract or other declaration, including a condominium association as defined in section 33-1202 and a planned community association as defined in section 33-1802, or a resident of a county or city who is affected by the nuisance may bring an action in superior court against the owner, the owner's managing agent or any other party responsible for the property to abate and prevent the criminal activity.

C. The court shall not assess a civil penalty against any person unless that person knew or had reason to know of the criminal activity.

D. An injunction that is ordered pursuant to this article shall be necessary to protect the health and safety of the public or prevent further criminal activity.

E. An order shall not affect the owner's interest in the property unless all of the following apply:

1. The owner is a defendant in the action.

2. The owner knew of the criminal activity.

3. The owner failed to take reasonable, legally available actions to abate the nuisance.

F. If the owner, the owner's managing agent or the party responsible for the property knows or has reason to know of the criminal activity and fails to take reasonable, legally available actions to abate the nuisance, a governmental authority may abate the nuisance. The court may assess the owner for the cost of abating the nuisance. On recording with the county recorder in the county in which the property is located, the assessment is prior to all other liens, obligations or encumbrances except for prior recorded mortgages, restitution liens, child support liens and general tax liens. A city, town or county may bring an action to enforce the assessment in the superior court in the county in which the property is located.

G. For purposes of this section, an owner, the owner's managing agent or the party responsible for the property is deemed to know or have reason to know of the nuisance if the owner, the owner's managing agent or the party responsible for the property has received notice from a governmental authority of documented reports of criminal offenses occurring on the residential property.

H. A law enforcement agency, a city attorney, a county attorney, the attorney general or any other person who is at least twenty-one years of age may serve the notice provided for in subsection G of this section, either personally or by certified mail. If personal service or service by certified mail cannot be completed or the address of the person to be notified is unknown, notice may be served by publishing the notice three times within ten consecutive days in a newspaper of general circulation in the county in which the property is located. In all cases a copy of the notice shall be posted on the premises where the nuisance exists.

I. The notice shall be printed in at least twelve-point type in substantially the following form:

Notice

This is formal notice that the property at (insert address and unit number if applicable) has had (insert number of) arrests or (insert number of) documented reports of alleged criminal activity and is considered a nuisance under section 12-991, Arizona Revised Statutes. A copy of the police report numbers is attached. Police reports are available at (insert applicable police agency).

Within five business days you must begin to take action that is legally available to you to abate the nuisance from the property. If you fail to do so, a restraining order to abate and prevent continuing or recurring criminal activity will be pursued.

If you fail to cooperate to abate the nuisance, the appropriate authorities will abate the nuisance and their costs will be a lien on the property.

You may contact (local agency) in order to obtain information on how to abate the nuisance.

J. For the purposes of this article:

1. "Owner" means a person or persons or a legal entity listed as the current title holder as recorded in the official records of the county recorder in the county in which the title is recorded.

2. "Owner's managing agent" means a person, corporation, partnership or limited liability company that is authorized by the owner to operate and manage the property.

§ 12-992 Residential property nuisances; temporary restraining order; notice; hearing; costs

A. If the existence of a nuisance on a residential property as described in section 12-991 is shown in the action to the satisfaction of the court either by verified complaint or affidavit and the court finds that the owner, the owner's managing agent or the party responsible for the property knew or had reason to know of the criminal activity and failed to take reasonable, legally available actions to abate the nuisance, the court shall enter a temporary restraining order to abate and prevent continuance or recurrence of the criminal activity. The court may issue any other order that is reasonably necessary to abate the criminal activity. The complaint shall be verified unless it is filed by the attorney general or a county or city attorney.

B. Notice of the entry of a restraining order, copies of the restraining order and the complaint, and notice of an opportunity for a hearing shall be served on the defendant named in the action or on the statutory agent, if applicable. Service shall be made pursuant to section 12-991.

C. Notice of the entry of a restraining order, copies of the restraining order and the complaint, and a notice of the possibility of a hearing shall be served on any legal occupant whom the plaintiff believes may claim an interest related to the property that is the subject of the action. Notice may be served personally, by first class mail or by posting on the occupant's door. The name of the legal occupant is not required to be included on the notice.

D. The notice required by subsection C of this section of the possibility of a hearing shall be printed in at least twelve point type in substantially the following form:

Notice

A notice of a nuisance action has been delivered to your property owner or managing agent (landlord). A copy of that notice is attached. If your property owner or managing agent does not remedy the problem, the appropriate government authority is authorized to abate, or end, the nuisance. This could include a closing order that may require you to move out and remove all your belongings. If you do not exercise your right to appear in the case, you may lose your right to contest a closing order or present other concerns.

You may request the court, the name of which is on the attached notice, to permit you to appear in the action.

E. Any action filed pursuant to this article shall not be stayed or dismissed due to the failure to serve notice pursuant to subsection C of this section if a good faith attempt is made to serve the notice.

F. A person who is directed to abate criminal activity pursuant to a temporary restraining order issued pursuant to subsection A of this section may request a hearing within ten days after receiving the notice. If a hearing is requested, the person shall file a verified answer to the complaint with the request for a hearing and shall serve notice of the request on the plaintiff. The temporary restraining order remains in effect until the hearing is completed.

G. A hearing shall be scheduled within ten days after a verified answer and request for a hearing is filed. The court may order any discovery that it considers to be reasonably necessary and appropriate.

H. Any legal occupant who claims an interest related to the property that is the subject of the action and who is so situated that the disposition of the action may as a practical matter impair or impede the person's ability to protect that interest shall be permitted to intervene in the action.

I. At the hearing, evidence of the general reputation of the property, building or place is admissible for the purpose of proving the existence of the nuisance.

J. If at the hearing the court determines that reasonable grounds exist to believe that a nuisance, as described in section 12-991, exists, the court shall issue a permanent injunction abating the criminal activity and may do any of the following:

1. Issue any other order that is reasonably necessary to abate the criminal activity, including orders to pay damages.

2. Award expenses incurred in abating the nuisance, including the costs of investigation and enforcement of the restraining order, temporary injunction or permanent injunction, the costs of compensation for a temporary receiver, the expenditures incurred by a temporary receiver and reasonable attorney fees.

3. Order a civil penalty of not more than ten thousand dollars.

4. Order the appointment of a temporary receiver pursuant to section 12-996.

5. Issue a closing order pursuant to section 12-997.

K. If an answer to the complaint is not filed or a hearing is not requested, the allegations are deemed to be admitted. The court shall enter judgment for the plaintiff and shall issue a permanent injunction abating the criminal activity.

L. On entry of a second or subsequent injunction under this section within a three year period, the court may order the property owner to pay three times the costs of the abatement. For the purposes of this subsection, "costs" includes all of the costs provided for in subsection J of this section.

M. The court shall terminate a restraining order and dismiss the complaint that was issued solely based on criminal activity committed by a tenant if the defendant attempts a forcible entry and detainer action against the tenant, unless the court finds that the defendant prosecuted the forcible entry and detainer action in bad faith.

§ 12-993 Precedence of action; resident actions; costs

A. An action that is filed pursuant to section 12-991 or 12-998 has precedence in the trial courts over all actions except juvenile proceedings, criminal proceedings, election contests and hearings on injunctions.

B. If the action is brought by a resident and the court finds that there was no reasonable basis for bringing the action, the court may assess costs and reasonable attorney fees against the resident. If the court determines that reasonable grounds do exist and issues a final judgment in favor of the plaintiff, the court may assess costs and reasonable attorney fees against the defendant.

§ 12-994 Violation; classification

A. A person who intentionally or knowingly violates or disobeys a temporary restraining order, a preliminary injunction, a permanent injunction or any other order issued by the court pursuant to section 12-992 is guilty of a class 5 felony.

B. A person who intentionally or knowingly violates or disobeys a temporary restraining order, a preliminary injunction, a permanent injunction or any other order issued pursuant to section 12-998 or 12-999 is guilty of a class 6 felony.

C. This section does not prevent the court from issuing any other order to enforce a temporary restraining order, a preliminary injunction, a permanent injunction or any other order issued pursuant to this article.

§ 12-995 Recording notice of action; subsequent acquisition of property

A. The plaintiff in an action brought pursuant to section 12-991 shall file a notice of the abatement action in the office of the recorder of the county in which the property that is the subject of the action is located. The notice shall state the following:

1. The name of the parties.

2. A legal description of the property.

3. The superior court case number of the action.

B. The recorder shall file, record and index the notice under the names of the parties to the action.

C. After the notice of abatement is recorded, both of the following apply:

1. A person who acquires the property that is the subject of the action is deemed to have notice of the action.

2. Any sale or other transfer of the property that is the subject of the action does not terminate the action. The action continues against subsequent owners, and the owners are bound by the terms and conditions of any order issued by the court in the abatement action.

D. The sale or other transfer to a third party of the property that is the subject of the action does not render moot an action or proceeding that is brought pursuant to this article.

§ 12-996 Appointment of temporary receiver; term; duties; accounting

A. In any judicial proceeding brought under sections 12-991 and 12-992, if the court determines that a nuisance exists and that the appointment of a temporary receiver is necessary to abate the nuisance or to otherwise enforce any order issued by the court, the court, on its own motion or on the motion of any party, may order the appointment of a temporary receiver to manage or operate the premises for as long as the court deems necessary to abate the nuisance. The court shall not appoint a temporary receiver for a term of more than one year.

B. A temporary receiver who is appointed pursuant to subsection A of this section either shall be a real estate licensee specializing in property management or an attorney specializing in real estate law and shall swear or affirm to faithfully and fairly discharge the receiver's duties. The court may require the temporary receiver to post a bond in an amount fixed by the court.

C. The court shall determine the following:

1. The management duties of the receiver.

2. The amount of compensation to be paid to the receiver.

3. The method of payment.

4. The payment periods.

D. The temporary receiver shall continue to manage the property during the pendency of any appeal or until relieved by the court. The court may remove a temporary receiver on its own motion or on the motion of any party or the temporary receiver.

E. The temporary receiver may do any of the following:

1. Take control of the property.

2. Pay the mortgage on the property if there are sufficient monies derived from the income of the property to do so.

3. Collect rents due on the property.

4. Make or have made any repairs that are necessary to bring the property into compliance with any statute or ordinance.

5. Make payments that are necessary for the maintenance or restoration of utilities to the property.

6. Purchase materials that are necessary to make repairs.

7. Renew, terminate or modify existing rental contracts and leases as provided by law.

8. Enter into new rental contracts and leases.

9. Affirm, renew or terminate an existing insurance contract that covers the property as provided by law.

10. Enter into a new contract that provides insurance coverage on the property.

11. Hire security or other personnel that are necessary for the safe and proper operation and maintenance of the property.

12. Prosecute or defend suits that flow from the management of the property and retain counsel.

13. Exercise all other authority that an owner of the property would have except the authority to sell the property.

F. Before the receiver spends monies in excess of ten thousand dollars the court and the party who is responsible for the payment of the temporary receiver's expenditures shall approve the expenditure of those monies.

G. The costs of compensation to and expenditures by the temporary receiver shall be paid in the following order of priority:

1. From the income that is derived from the property and that is available after all taxes and mortgages are satisfied.

2. From monies that are collected pursuant to a court order issued pursuant to section 12-992 for the compensation and expenditure costs of a temporary receiver.

3. By the party who requested the appointment of the temporary receiver.

H. On filing with the county recorder of the county in which the property is located, a lien is created in favor of the party other than the defendant who pays the temporary receiver's costs of compensation and expenditures. The lien is prior to all other liens, obligations or encumbrances except for prior recorded mortgages, restitution liens, child support liens and general tax liens.

I. On the completion of the receivership, the temporary receiver shall file with the court a full accounting of all costs and expenses incurred and all income received during the course of the receivership.

J. On finding that the appointment of a temporary receiver is no longer warranted, the court on its own motion or the motion of any party may terminate the temporary receivership.

§ 12-997 Closing orders; enforcement; notice; moving assistance; violation; classification

A. In any judicial proceeding brought under sections 12-991 and 12-992, the court, on its own motion or on the motion of any party, may issue an order to close all or part of the premises involved if the court finds both of the following:

1. A nuisance exists.

2. The public health, safety or welfare immediately requires the closing.

B. A closing order shall both:

1. Direct the actions that are necessary to physically secure the premises or part of the premises that is closed against use for any purpose.

2. Restrain the defendant and any other person from removing or in any manner interfering with the furniture, fixtures and movable or personal property on or within the premises that constitute the nuisance, except as otherwise provided in this section.

C. On order of the court, the local law enforcement agency shall enforce a closing order. The law enforcement officer who serves a temporary closing order shall allow the owner of any personal property twenty-four hours to remove the property.

D. On service of the closing order and unless otherwise ordered by the court, the law enforcement officer who serves the order shall demand all persons who are present on the premises to be closed to immediately vacate the premises or part of the premises affected by the order. The agency closing the premises shall securely lock the premises or part of the premises to be closed and shall hold all of the keys to the premises.

E. If the premises that constitute a nuisance include multiple residences or dwellings, the court shall limit the closing order to that portion of the entire premises that is necessary to abate the nuisance and to prevent the recurrence of the nuisance.

F. On service of a closing order, the law enforcement officer shall post both of the following in a conspicuous place or on one or more of the principal doors at entrances to the premises:

1. A copy of the order.

2. A written notice that states that the entire premises or part of the premises has been closed by court order. The notice shall contain the heading "closed by court order" in block lettering of sufficient size to be observed by any person who intends or is likely to enter the premises. The notice shall also include the date of the order, the court that issued the order and the name of the office or agency that posted the notice.

G. In addition to any other relief authorized by this article, the court may order a defendant who knew or had reason to know of the nuisance and who failed to take reasonable and legally available actions to abate the nuisance to provide refunds of any deposits and reasonable moving assistance to any tenant who is ordered to vacate the premises if the court determines that the tenant was not involved in any event constituting the nuisance and did not knowingly aid in the commission of any such event. The court shall determine the amount of moving expenses.

H. If the court orders refunds of any deposits and moving assistance pursuant to subsection G of this section and the defendant fails to comply with the order, a lien for the amount of court ordered moving expenses may be filed against the defendant with the county recorder of the county in which the property is located. The lien is prior and superior to all other liens, obligations or encumbrances except for liens under section 12-991 or 12-996, prior recorded mortgages, restitution liens, child support liens and general tax liens.

I. If after a hearing the court on its own motion or the motion of any party finds that any of the criteria for issuing the closing order no longer exists, the court shall terminate the closing order.

J. A person who without lawful authority removes or mutilates an order or notice posted pursuant to this section is guilty of a class 1 misdemeanor.

§ 12-998 Nuisance; commercial buildings used for crime; action to abate and prevent

A. The use of a commercial building or place regularly used in the commission of a crime is a nuisance and the criminal activity causing the nuisance shall be enjoined, abated and prevented and damages may be recovered.

B. If there is reason to believe that a nuisance as described in subsection A exists, the attorney general, the county attorney, the city attorney or a resident of a county or city who is affected by the nuisance may bring an action in superior court to abate and prevent the criminal activity, except that:

1. The court shall not assess a civil penalty against any person unless that person knew of the unlawful acts.

2. The court shall not enter an order of closure.

3. The injunction shall be necessary to protect the health and safety of the public or to prevent further criminal activity.

4. The order shall not affect the owner's interest in the building or place used for the criminal activity.

§ 12-999 Commercial property nuisances; temporary restraining order; notice; hearing

A. If the existence of a nuisance on commercial property as described in section 12-998 is shown in the action to the satisfaction of the court either by verified complaint or affidavit, the court shall enter a temporary restraining order to abate and prevent continuance or recurrence of the criminal activity. The complaint shall be verified unless it is filed by the attorney general or a county or city attorney.

B. Notice of the entry of a temporary restraining order, copies of the temporary restraining order and the complaint and notice of an opportunity for a hearing shall be served on the defendant named in the action. Service shall be made pursuant to the Arizona rules of civil procedure.

C. A person who is directed to abate criminal activity pursuant to a temporary restraining order issued pursuant to subsection A of this section may request a hearing within ten days after receiving the notice. A verified answer to the complaint shall be filed with the request for a hearing. If a hearing is requested, notice of the request shall be served on the plaintiff. The temporary restraining order remains in effect until the hearing is completed.

D. If at the hearing the court determines that reasonable grounds exist to believe that a nuisance, as described in section 12-998, subsection A, exists, the court shall issue a permanent injunction abating the criminal activity and may issue any other order that is reasonably necessary to abate the criminal activity, including damages. If the court determines that reasonable grounds do not exist to believe that a nuisance exists, the court shall dismiss the action and terminate the temporary restraining order.

E. A hearing on an action under this section shall be set within thirty days after the request is filed or after a verified answer to the complaint is filed if a temporary restraining order has not been issued. Before the hearing, the court may order any discovery that the court considers to be reasonably necessary and appropriate.

F. If a hearing is not requested, the court shall issue a permanent injunction abating the criminal activity.

Article 13 Liability for Animal Rescue Costs

§ 12-1011 Liability for animal rescue costs

An owner is liable to this state or a political subdivision of this state for the expenses incurred by this state or a political subdivision of this state in rescuing animals that belong to the owner if the animals have been cruelly treated or neglected and the owner has been convicted of a violation of section 13-2910.

Chapter 8 Special Actions and Proceedings Relating to Property

Article 1 Action to Quiet Title

§ 12-1101 Parties; claim; service on attorney general

A. An action to determine and quiet title to real property may be brought by any one having or claiming an interest therein, whether in or out of possession, against any person or the state when such person or the state claims an estate or interest in the real property which is adverse to the party bringing the action.

B. When the state is made defendant a copy of the summons and complaint shall be served upon the attorney general.

§ 12-1102 Complaint

The complaint shall:

1. Be under oath.

2. Set forth generally the nature and extent of plaintiff's estate.

3. Describe the premises.

4. State that plaintiff is credibly informed and believes defendant makes some claim adverse to plaintiff. When the state is made defendant, the complaint shall set forth with particularity or on information or belief the claim of the state adverse to plaintiff.

5. Pray for establishment of plaintiff's estate and that defendant be barred and forever estopped from having or claiming any right or title to the premises adverse to plaintiff.

§ 12-1103 Disclaimer of interest and recovery of costs; request for quit claim deed; disclaimer of interest by state

A. If defendant, other than the state, appears and disclaims all right and title adverse to plaintiff, he shall recover his costs.

B. If a party, twenty days prior to bringing the action to quiet title to real property, requests the person, other than the state, holding an apparent adverse interest or right therein to execute a quit claim deed thereto, and also tenders to him five dollars for execution and delivery of the deed, and if such person refuses or neglects to comply, the filing of a disclaimer of interest or right shall not avoid the costs and the court may allow plaintiff, in addition to the ordinary costs, an attorney's fee to be fixed by the court.

C. If, after appropriate investigation, it appears to the attorney general that the state claims no right or title to the property adverse to plaintiff, he may file a disclaimer of right and title.

§ 12-1104 Allegation of lien or interest claimed by adverse party; jurisdiction of court to enter decree

A. In an action to quiet title to real property, if the complaint sets forth that any person or the state has or claims an interest in or a lien upon the property, and that the interest or lien or the remedy for enforcement thereof is barred by limitation, or that plaintiff would have a defense by reason of limitation to an action to enforce the interest or lien against the real property, the court shall hear evidence thereon.

B. If it is proved that the interest or lien or the remedy for enforcement thereof is barred by limitation, or that plaintiff would have a defense by reason of limitation to an action to enforce the interest or lien against the real property, the court shall have jurisdiction to enter judgment and plaintiff shall be entitled to judgment barring and forever estopping assertion of the interest or lien in or to or upon the real property adverse to plaintiff.

Article 2 Eminent Domain

§ 12-1111 Purposes for which eminent domain may be exercised

Subject to the provisions of this title, the right of eminent domain may be exercised by the state, a county, city, town, village, or political subdivision, or by a person, for the following uses:

1. All public uses authorized by the government of the United States.

2. Buildings and grounds for any public use of the state and all other public uses authorized by the legislature.

3. Buildings and grounds for the use of a county, city, town or school district.

4. Canals, aqueducts, flumes, ditches or pipes, for conducting water for the use of the inhabitants or for drainage of a county, city, town or village.

5. Raising the banks of streams, removing obstructions therefrom, or widening, deepening or straightening their channels.

6. Roads, streets and alleys, and all other public uses for the benefit of a county, city, town or village, or the inhabitants thereof, which is authorized by the legislature. The method of apportioning and collecting the costs of the improvements authorized by paragraphs 3, 4, 5 and 6 shall be as provided in the law by which they are authorized.

7. Wharves, docks, piers, chutes, booms, ferries, bridges, toll roads, byroads, plank and turnpike roads and highways.

8. Steam, horse, mule, electric and cable railroads or railways.

9. Telegraph and telephone lines and conduits for public communication.

10. Electric light and power transmission lines, pipe lines used for supplying gas, and all transportation, transmission and intercommunication facilities of public service agencies.

11. Aviation fields.

12. Reservoirs, canals, ditches, flumes, aqueducts and pipes, for the use of a county, city, town or village, or its inhabitants, or for public transportation for supplying mines and other industrial enterprises, farms and farm neighborhoods with water for irrigation, domestic and other needful purposes, and for generating electricity.

13. Draining and reclaiming lands, and for floating logs and lumber on nonnavigable streams.

14. Roads, tunnels, ditches, flumes, pipes and dumping places for working mines, and outlets, natural or otherwise, for the flow, deposit or conduct of tailings or refuse matter from mines, and an occupancy in common by the owners or possessors of different mines, or any place for the flow, deposit or conduct of tailings or refuse matter from their several mines.

15. Byroads leading from highways to residences and farms.

16. Private canals, ditches, flumes, aqueducts and pipes for conducting water from natural water courses or bodies or from public sources where the lands to be irrigated are not directly reached by such natural water course or public sources.

17. Pipe lines to carry petroleum, petroleum products or any other liquid.

18. Rights of way, station grounds, pits, yards, sidetracks and other necessary facilities for railways.

§ 12-1112 Prerequisites to taking property by condemnation

Except as provided by section 28-7102, before property may be taken, it shall appear that:

1. The use to which the property is to be applied is a use authorized by law.

2. The taking is necessary to such use.

3. If the property is already appropriated to some public use, the public use to which it is to be applied is a more necessary public use.

§ 12-1113 Estates in land subject to condemnation

The interests, estates and rights in lands subject to be taken for public use, are:

1. A fee simple, when taken for public buildings or grounds or for permanent buildings, for use in connection with a right-of-way or for an outlet for the flow or a place for the deposit of tailings or refuse from a mine or for irrigating ditches. A leasehold interest in a building may be taken only if the underlying property is taken in fee title or easement.

2. An easement when taken for any use other than those set forth in paragraph 1.

3. A right of entry on and occupation of lands, and the right to take from the lands earth, gravel, stone, trees and timber necessary for a public use.

4. A use in the water of a stream, river or spring.

§ 12-1114 Private property subject to condemnation

Private property which may be taken includes:

1. All real property belonging to any person, including any and all water and water rights for the irrigation of any land condemned, belonging to or used in connection with the land for the irrigation thereof, with right of way for the water or water rights condemned through irrigating canals and ditches leading to the land condemned.

2. Lands belonging to the state, or to any county, city, town or village, not appropriated to some public use.

3. Property appropriated to public use.

4. Franchises for toll roads, toll bridges, and ferries, and all other franchises, but such franchises shall not be taken unless for free highways, railroads or other more necessary public uses.

5. All rights of way through canyons, passes or defiles, and all rights of way for any and all purposes mentioned in paragraph 2 of section 12-1111, and any and all structures and improvements thereon, and the lands held or used in connection therewith, intersected by any other right of way or improvements or structures thereon, which shall also be subject to a limited use in common with the owner thereof when necessary, but such uses, crossings, intersections and connections shall be made in the manner most compatible with the greatest public benefit and least private injury.

6. All classes of private property not enumerated, including property for use in water or water rights, taken for public use when the taking is authorized by law.

§ 12-1114.01 Property of the United States subject to condemnation; duty of attorney general to file action; exclusions

A. Property that may be taken under this article includes property possessed by the United States government unless:

1. The property was acquired by the federal government with the consent of the legislature pursuant to article I, section 8, clause 17, Constitution of the United States.

2. The property consists of Indian lands owned or held by a federally recognized Indian tribe, nation, band or community as reservation lands, allotment lands or sovereign or proprietary lands or in any other capacity.

B. This state shall be the plaintiff described in this article in an action to condemn property described in subsection A. This state is not responsible for legal actions filed by other persons or entities.

C. The attorney general shall file eminent domain actions with the consent of the United States government on property described in subsection A:

1. That facilitate this state's ability to manage, or provide access to, or increase the profitability of, the lands owned or held in trust by this state for the benefit of public schools and other institutions of this state consistent with this state's fiduciary responsibilities toward the beneficiaries of the trust lands.

2. For a public use that increases the ability of this state to generate revenue.

D. This section does not apply with respect to:

1. Property held by the United States for the benefit, including water rights, of a federal reclamation project or managed by a political subdivision of this state, or a special taxing district organized under title 48.

2. Property on which permanent improvements are constructed or that is legally encumbered.

§ 12-1115 Right of state to enter and survey property for public use

A. Where land is required for public use, the state, or its agents in charge of such use, may survey and locate the land, but it shall be located in the manner which will be most compatible with the greatest public good and the least private injury.

B. The land may be entered upon to make examinations, surveys and maps thereof, and the entry constitutes no cause of action in favor of the owners of the land, except for injuries resulting from negligence, wantonness or malice.

C. A person seeking to acquire property for any of the public uses authorized by this title is an agent of the state.

§ 12-1116 Actions for condemnation; immediate possession; money deposit

A. All actions for condemnation shall be brought as other civil actions in the superior court in the county in which the property is located except that, at least twenty days before filing an action for condemnation of property or any interest in property, the plaintiff shall deliver to the property owner of record and as a courtesy to the sole lessee of record, if applicable, according to the records of the county recorder in the county in which the property is located:

1. A written offer to purchase the property or interest in the property and to pay just compensation for the property or interest in the property and for any compensable damages to any remaining property. The offer must constitute the plaintiff's estimate of just compensation. The offer may be made subject to any lessees of record or any lessees who may claim a compensable interest. The offer does not impose an obligation on the plaintiff to provide a written offer to purchase the lessee's interest.

2. One or more appraisals that support the amount of the proposed compensation.

B. Except for special taxing districts formed pursuant to title 48, chapter 17, if no lease is recorded or if more than one lease is recorded for the property with the county recorder of the county in which the property is located, at least twenty days before filing an action for condemnation of property or any interest in property, the plaintiff shall provide notice of the offer and appraisal to the party having a plain and obvious commercial ownership or operational interest in substantial improvements on the property by posting the notice in plain sight at the property that may be subject to condemnation.

C. For special taxing districts formed pursuant to title 48, chapter 17, if more than one lease is recorded for the property with the county recorder of the county in which the property is located, at least twenty days before filing an action for condemnation of property or any interest in property, the plaintiff shall provide notice of the offer and appraisal by delivering to all property interest holders of record the notice that an offer has been made and an appraisal has been conducted. The notice does not apply to lessees of record if the lease or other written agreement governing the interest holder's rights in the property provides that the property interest holder would not be entitled to condemnation proceeds.

D. If a lessee that is not noted in the record of the county recorder and has a commercial ownership or operational interest in substantial improvements on the property requests a copy of the offer and appraisal the plaintiff shall promptly comply with the request on presentation of documentation by the lessee of the lessee's interest in the property.

E. At the time of filing the complaint, or at any time after filing the complaint, the plaintiff may apply to the court for an order permitting the plaintiff to take possession of and use the property sought to be condemned for the purpose prayed for.

F. The superior court may waive the requirements of subsection A, B, C or D of this section if the court determines that the plaintiff will suffer immediate and irreparable harm that outweighs the property owner's or lessee's interest.

G. On filing the application, the court shall set a time for a hearing. Notice shall be served on the parties in interest by personal service within the state, or by publication if without the state, in any manner as the court directs.

H. On the day of the hearing, if it appears that the use for which the property is sought to be condemned is a necessary use, the court shall receive evidence as to the probable damages to each owner, possessor or person having an interest in each parcel of land sought to be condemned and of any unpaid property taxes that have been levied, including penalties and interest, on the property sought to be condemned and may direct that on a deposit of money, on direct payment to each owner, possessor or person having an interest in each parcel, or if the condemnor is the state or a county, city, town or political subdivision of this state, on posting a bond in a form to be approved by the court, the plaintiff shall be let into the possession and full use of the parcels of land, as described in the order, for the purposes specified in the order.

I. The plaintiff may deposit the money or bond with the clerk of the court or the state treasurer. The money or bond may be held for the use and benefit of each person having an interest in each parcel of land sought to be condemned, subject to final judgment after trial of the action, and may be held also as a fund to pay any further damages and costs recovered in the proceedings and any unpaid property taxes that were levied as of the date of the order for immediate possession, including penalties and interest, on the property sought to be condemned, as well as all damages sustained by the defendant if for any cause the property is not finally taken for public use. The deposit of the money or bond shall not discharge the plaintiff from liability to maintain the fund in full, but it shall remain deposited for all accidents, defalcations or other contingencies, as between the parties to the proceedings, at the risk of the plaintiff, until the compensation or damage is finally settled by judicial determination, and the court awards such part of the money or bond as shall be determined to the defendant, or until the clerk or the state treasurer is ordered by the court to disburse it. The clerk of the court or the state treasurer is liable to the plaintiff for the deposit or bond if it is lost or abstracted.

J. If the plaintiff elects to deposit the money or bond in the state treasury, the state treasurer shall receive the money or bond and return a receipt for the money or bond to the court, and the state treasurer shall safely keep the deposit in a special fund to be entered on the state treasurer's books as the condemnation fund. The state treasurer shall invest and divest monies in the condemnation fund as provided by section 35-313, and monies earned from investment shall be credited to the fund. The state treasurer shall disburse the money deposited and, if necessary, convert the investments to cash for the purpose of making the disbursements or forfeit the bond as the court may direct pursuant to its judgment. After satisfaction of the judgment in a condemnation action and payment of any unpaid property taxes that were levied as of the date of the order for immediate possession, including penalties and interest, on the property sought to be condemned, the excess, if any, of the deposit made regarding the action, including monies earned by the investment and reinvestment of the deposit, shall be returned by the state treasurer to the plaintiff by a warrant that the department of administration shall issue upon direction of the state treasurer after having received a certified copy of the judgment and without regard to provisions requiring the filing of a claim against the state. Any monies remaining in the condemnation fund at the end of the fiscal year do not revert to the state general fund.

K. If the plaintiff elects to deposit the money or bond with the clerk of the court, the clerk shall receive the money or bond and return a receipt for the money or bond to the court, and the clerk is liable to the plaintiff if the money or bond is lost or abstracted. The clerk shall disburse the money or forfeit the bond as the court may direct pursuant to its judgment. Any money remaining in a deposit after the judgment of the court and all unpaid property taxes that were levied as of the date of the order for immediate possession, including penalties and interest, have been fully paid shall be returned by the clerk to the plaintiff.

L. On application by any party, the court may order that money deposited with the clerk of the court or the state treasurer be paid to any owner, possessor or person having an interest in any parcel.

M. Subject to court approval, the parties may also stipulate any of the following with any owner, occupant or possessor of any parcel:

1. To the amount of money that the plaintiff may deposit with the clerk of the court or with the state treasurer for any owner, occupant or possessor of any parcel.

2. To the amount of direct payment to any owner, occupant or possessor of any parcel.

3. To the payment of money deposited with the clerk of the court or the state treasurer to any owner, occupant or possessor of any parcel.

4. For the release of any bond on payment to any owner, occupant or possessor of any parcel.

N. A person in interest for whom a deposit has been made pursuant to stipulation for the person's withdrawal is entitled to interest on the amount that the person is allowed to withdraw from the date the order for immediate possession is signed by the court pursuant to subsection C of this section until the date of withdrawal. This person is also entitled to interest on that portion of the final judgment, exclusive of costs allowed by the court, that exceeds the amount that is deposited for the person's withdrawal from the date the order for immediate possession is signed by the court until the judgment is paid. If the amount that is withdrawn by any defendant exceeds the amount of the final judgment awarded the defendant inclusive of costs allowed by the court and any unpaid property taxes that were levied as of the date of the order for immediate possession, including penalties and interest, on the property sought to be condemned, the defendant withdrawing the funds immediately shall repay to the plaintiff the excess, with legal interest from the date of withdrawal to the date of repayment, except that the amount that is necessary to pay any unpaid property taxes that were levied as of the date of the order for immediate possession, including penalties and interest, on the property shall be paid to the county treasurer of the county in which the property sought to be condemned is located.

O. Any stipulation that is made or any evidence that is introduced pursuant to this section shall not be introduced in evidence or used to the prejudice of any party in interest on the trial of the action.

§ 12-1117 Complaint

The complaint shall set forth:

1. The name of the person asserting the public use for which the property is sought, as plaintiff.

2. The names of all owners and claimants of the property, if known, or a statement that they are unknown, as defendants.

3. A statement of the right of plaintiff.

4. If a right of way for a road, ditch, canal or other purpose is sought, the location and general route, accompanied with a map thereof.

5. A description of each piece of land sought to be taken, and whether the land includes the whole or only a part of an entire parcel or tract.

§ 12-1118 Joint or separate actions; consolidation

A. All parcels lying in the county, and required for the same public use, may be included in the same or separate proceedings, at the election of plaintiff, but the court may consolidate or separate them for convenience of the parties.

B. When application for condemnation of a right of way for sewage disposal, or to obtain water, is made on behalf of a settlement, village or an unincorporated town, the board of supervisors of the county may be the plaintiff.

§ 12-1119 Summons; contents; service

A. The clerk shall issue a summons containing:

1. The names of the parties.

2. A general description of the whole property.

3. A statement of the public use for which it is sought.

4. A reference to the complaint for descriptions of the respective parcels.

5. Notice to defendants to appear and show cause why the property described should not be condemned as prayed for in the complaint.

B. The summons in all other particulars shall be as provided in civil actions, and shall be served in like manner.

§ 12-1120 Right to defend action

All persons occupying, or having or claiming an interest in any of the property described in the complaint, or in the damages for the taking thereof, though not named, may appear, plead and defend in respect to his property or interest, or that claimed by him, as if named in the complaint.

§ 12-1121 Powers of court; precedence

A. The court may determine and regulate the place and manner of making connections and crossings or of enjoying the common use mentioned in paragraph 14 of section 12-1111. It shall hear and determine all adverse or conflicting claims to the property sought to be condemned and the claim of damages therefor, and shall determine the respective rights of different parties seeking condemnation of the same property.

B. The court in which any action brought under articles 2 and 3 of this chapter is pending shall, at the request of any party, give the action precedence over other civil actions.

§ 12-1122 Ascertainment and assessment of value, damages and benefits

A. The court or jury shall ascertain and assess:

1. The value of the property sought to be condemned and all improvements on the property pertaining to the realty, and of each and every separate estate or interest in the property, and if it consists of different parcels, the value of each parcel and each estate or interest in the parcel separately.

2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages that will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by the plaintiff.

3. How much the portion not sought to be condemned and each estate or interest in the portion will be benefited separately, if at all, by construction of the improvement proposed by the plaintiff. If the benefit is equal to the damages assessed under paragraph 2 of this subsection, the owner of the parcel shall be allowed no compensation except for the value of the portion taken, but if the benefit is less than the damages so assessed, the benefit shall be deducted from the damages, and the remainder shall be the only damages allowed in addition to the value.

4. If the property sought to be condemned is for a railroad, the cost of good and sufficient fences along the line of the railroad, and the cost of cattle guards where fences may cross the line of the railroad.

B. As far as practicable, compensation shall be assessed for each source of damage separately.

C. Value shall be determined by ascertaining the most probable price estimated in terms of cash in United States dollars or comparable market financial arrangements that the property would bring if exposed for sale in the open market, with reasonable time allowed in which to find a purchaser, buying with knowledge of all of the uses and purposes to which it was adapted and for which it was capable.

D. For the purpose of assessing compensation and damages with respect to property sought to be condemned by this state for transportation purposes, in addition to subsections A and B of this section, the court or a jury shall assess compensation and damages pursuant to sections 28-7091 and 28-7097.

§ 12-1123 Accrual of right to compensation and damages; limitation

A. For the purpose of assessing compensation and damages, the right to compensation and damages shall be deemed to accrue at the date of the summons, and its actual value at that date shall be the measure of compensation and damages.

B. If there is an order for immediate possession before the final judgment, the compensation and damages awarded shall draw interest from the date the order is entered by the court. If the defendant is allowed to withdraw money deposited by the plaintiff pursuant to section 12-1116, subsection M, the defendant is entitled to interest on the money that the defendant is allowed to withdraw from the date the order for immediate possession is signed by the court until the date of the withdrawal.

C. No improvements placed upon the property subsequent to the date of service of the summons shall be included in the assessment of compensation or damages.

D. If an order is made letting plaintiff into possession before the recording of the final order of condemnation, the plaintiff shall record the order in the office of the county recorder of the county or counties in which the property is located and on the recording so much of the defendant's property as is affected by the order shall immediately be granted tax exempt status for future tax rolls and any unpaid property taxes that have been levied, including penalties and interest, on the property shall be paid to the county treasurer in the county in which the property is located pursuant to section 12-1116.

§ 12-1124 Payment of compensation; effect of failure to pay

Payment of compensation and damages may be made to a defendant or defendants entitled thereto, or the money may be deposited in court and distributed to the defendant or defendants entitled thereto. At the time the money is paid or deposited, all unpaid property taxes which were levied as of the date of the order for immediate possession, including penalties and interest, that are due on the property condemned shall be paid to the county treasurer in the county in which the condemned property is located. If the money is not so paid or deposited, the defendant or defendants or the county treasurer may have execution as in civil actions, and if the money cannot be collected on execution, the court, upon a showing to that effect, shall set aside and annul the entire proceedings, and restore possession of the property to defendant or defendants, if possession has been taken by plaintiff.

§ 12-1125 Payment of damages in proceedings by railroad

A. If the property sought to be condemned is for a railroad, plaintiff shall, within thirty days after final judgment, pay the sum assessed, but may, before payment, elect to build fences and cattle guards. If plaintiff so elects, he shall execute and deliver to defendant a bond, with sureties to be approved by the court, in double the assessed cost thereof conditioned that plaintiff will build the fences and cattle guards within eighteen months from the time the railroad is built on the land taken, and if bond is given, plaintiff shall not be required to pay the cost of the fences and cattle guards to defendant.

B. In an action on the bond reasonable attorney's fees, in addition to all damages, may be recovered.

§ 12-1126 Final order of condemnation; recording; vesting of property

A. When the final judgment has been satisfied and all unpaid property taxes which were levied as of the date of the order for immediate possession, including penalties and interest, on the property that is the subject of the condemnation action have been paid, the court shall make a final order of condemnation, describing the property condemned and the purposes of the condemnation.

B. A copy of the order shall be recorded in the office of the county recorder of the county or counties in which the property is located, and thereupon the property described shall vest in plaintiff for the purposes therein specified.

§ 12-1127 Possession by plaintiff after judgment or pending appeal; receipt of payment as abandonment; custody of money paid into court; costs of new trial

A. At any time after judgment is entered, or pending an appeal from the judgment to the supreme court, when plaintiff has paid into court for defendant or defendants the full amount of the judgment, and such other amounts as required by the court as a fund to pay further damages and costs which may be recovered in the proceedings, as well as all damages that may be sustained by defendant or defendants if for any cause the property is not finally taken for public use, the superior court in which the action was tried may, upon notice of not less than ten days, authorize plaintiff, if already in possession, to continue therein, or if not, then to take possession of and use the property until final conclusion of the litigation, and may, if necessary, stay all actions and proceedings against plaintiff on account thereof.

B. The defendant or defendants who are entitled to the money paid into court upon any judgment may demand and receive the money at any time thereafter upon an order of the court. The court shall, upon application, order the money so paid into court delivered to the party entitled thereto upon his filing either a satisfaction of the judgment or a receipt for the money, and an abandonment of all defenses to the action or proceeding except as to the amount of damages to which he may be entitled if a new trial is granted. Such payment shall be deemed an abandonment of all defenses, except the party's claim for greater compensation.

C. The money paid into court on final judgment may be placed by order of court in the custody of the clerk or state treasurer to be held or disbursed upon order of court, and plaintiff and such officers shall be subject to the same responsibility, liabilities and restrictions with respect thereto as provided in this article when money is paid into court by plaintiff upon application for possession before trial.

D. When a new trial is granted upon application of a defendant, and he fails upon the trial to obtain greater compensation than was allowed upon the first trial, the costs of the new trial shall be taxed against him.

§ 12-1128 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.

§ 12-1129 Dismissal of condemnation action; litigation expenses

A. If a plaintiff causes a condemnation action under this article to be dismissed without prejudice before payment of the compensation and damages awarded the defendant by the court or jury, the plaintiff shall not initiate any eminent domain proceeding with respect to the same property for the same or a related project for at least two years after the date of the verdict or judgment.

B. The court having jurisdiction of a condemnation action under this article shall award the owner with any right to, title to or interest in the property that is the subject of the action an amount that will reimburse the owner for the owner's reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of the condemnation proceeding if either of the following occurs:

1. The final judgment is that the plaintiff cannot acquire the real property by condemnation.

2. The proceeding is abandoned on a motion by the plaintiff.

C. If the proceeding is dismissed on a motion by the plaintiff because the parties have agreed to settle the matter out of court, both parties shall pay their own costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees unless otherwise specified by the parties in the settlement agreement.

§ 12-1130 Fees and expenses; appraisal; relocation benefits; applicability

A. In a proposed condemnation action if an owner-occupant of a residential property disagrees with the offer and appraisal, the owner-occupant may obtain a second appraisal from an appraiser who is on the approved list that is maintained by the governmental entity and the governmental entity shall pay for the second appraisal.

B. Before filing an eminent domain action, the governmental entity shall provide to the owner-occupant all appraisals of the property that the governmental entity obtains.

C. Any governmental entity that acquires owner-occupied residential property by condemnation or threat of condemnation shall provide the owner-occupant with a determination of relocation benefits in an amount that allows the owner-occupant to purchase a comparable replacement dwelling as provided under applicable relocation law.

D. In a condemnation action to acquire owner-occupied residential property, the court may award fees and other expenses to any party other than this state or a city, town or county or any other political subdivision of this state. In making the determination, the court may consider the amount of the difference between the final offer and the compensation awarded, the percentage of the difference between the final offer and the award and any other factors the court deems appropriate. For the purposes of this subsection, "fees and other expenses" means the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test or project that the court finds to be directly related to and necessary for the presentation of the party's case and reasonable and necessary attorney fees.

E. This section does not apply to actions for acquisition of property for public safety, transportation, flood control or utility purposes.

Article 2.1 Private Property Rights Protection Act

§ 12-1131 Property may be taken only for public use consistent with this article

(Caution: 1998 Prop. 105 applies)

Eminent domain may be exercised only if the use of eminent domain is authorized by this state, whether by statute or otherwise, and for a public use as defined by this article.

§ 12-1132 Burden of proof

(Caution: 1998 Prop. 105 applies)

A. In all eminent domain actions the judiciary shall comply with the state constitution's mandate that whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public.

B. In any eminent domain action for the purpose of slum clearance and redevelopment, this state or a political subdivision of this state shall establish by clear and convincing evidence that each parcel is necessary to eliminate a direct threat to public health or safety caused by the property in its current condition, including the removal of structures that are beyond repair or unfit for human habitation or use, or to acquire abandoned property and that no reasonable alternative to condemnation exists.

§ 12-1133 Just compensation; slum clearance and redevelopment

(Caution: 1998 Prop. 105 applies)

In any eminent domain action for the purpose of slum clearance and redevelopment, if private property consisting of an individual's principal residence is taken, the occupants shall be provided a comparable replacement dwelling that is decent, safe, and sanitary as defined in the state and federal relocation laws, section 11-961 et seq. and 42 USC 4601 et seq., and the regulations promulgated thereunder. At the owner's election, if monetary compensation is desired in lieu of a replacement dwelling, the amount of just compensation that is made and determined for that taking shall not be less than the sum of money that would be necessary to purchase a comparable replacement dwelling that is decent, safe, and sanitary as defined in the state and federal relocation laws and regulations.

§ 12-1134 Diminution in value; just compensation

(Caution: 1998 Prop. 105 applies)

A. If the existing rights to use, divide, sell or possess private real property are reduced by the enactment or applicability of any land use law enacted after the date the property is transferred to the owner and such action reduces the fair market value of the property the owner is entitled to just compensation from this state or the political subdivision of this state that enacted the land use law.

B. This section does not apply to land use laws that:

1. Limit or prohibit a use or division of real property for the protection of the public's health and safety, including rules and regulations relating to fire and building codes, health and sanitation, transportation or traffic control, solid or hazardous waste, and pollution control;

2. Limit or prohibit the use or division of real property commonly and historically recognized as a public nuisance under common law;

3. Are required by federal law;

4. Limit or prohibit the use or division of a property for the purpose of housing sex offenders, selling illegal drugs, liquor control, or pornography, obscenity, nude or topless dancing, and other adult oriented businesses if the land use laws are consistent with the constitutions of this state and the United States;

5. Establish locations for utility facilities;

6. Do not directly regulate an owner's land; or

7. Were enacted before the effective date of this section.

C. This state or the political subdivision of this state that enacted the land use law has the burden of demonstrating that the land use law is exempt pursuant to subsection B.

D. The owner shall not be required to first submit a land use application to remove, modify, vary or otherwise alter the application of the land use law to the owner's property as a prerequisite to demanding or receiving just compensation pursuant to this section.

E. If a land use law continues to apply to private real property more than ninety days after the owner of the property makes a written demand in a specific amount for just compensation to this state or the political subdivision of this state that enacted the land use law, the owner has a cause of action for just compensation in a court in the county in which the property is located, unless this state or political subdivision of this state and the owner reach an agreement on the amount of just compensation to be paid, or unless this state or political subdivision of this state amends, repeals, or issues to the landowner a binding waiver of enforcement of the land use law on the owner's specific parcel.

F. Any demand for landowner relief or any waiver that is granted in lieu of compensation runs with the land.

G. An action for just compensation based on diminution in value must be made or forever barred within three years of the effective date of the land use law, or of the first date the reduction of the existing rights to use, divide, sell or possess property applies to the owner's parcel, whichever is later.

H. The remedy created by this section is in addition to any other remedy that is provided by the laws and constitution of this state or the United States and is not intended to modify or replace any other remedy.

I. Nothing in this section prohibits this state or any political subdivision of this state from reaching an agreement with a private property owner to waive a claim for diminution in value regarding any proposed action by this state or a political subdivision of this state or action requested by the property owner.

§ 12-1135 Attorney fees and costs

(Caution: 1998 Prop. 105 applies)

A. A property owner is not liable to this state or any political subdivision of this state for attorney fees or costs in any eminent domain action or in any action for diminution in value.

B. A property owner shall be awarded reasonable attorney fees, costs and expenses in every eminent domain action in which the taking is found to be not for a public use.

C. In any eminent domain action for the purpose of slum clearance and redevelopment, a property owner shall be awarded reasonable attorney fees in every case in which the final amount offered by the municipality was less than the amount ascertained by a jury or the court if a jury is waived by the property owner.

D. A prevailing plaintiff in an action for just compensation that is based on diminution in value pursuant to section 12-1134 may be awarded costs, expenses and reasonable attorney fees.

§ 12-1136 Definitions

(Caution: 1998 Prop. 105 applies)

In this article, unless the context otherwise requires:

1. "Fair market value" means the most likely price estimated in terms of money which the land would bring if exposed for sale in the open market, with reasonable time allowed in which to find a purchaser, buying with knowledge of all the uses and purposes to which it is adapted and for which it is capable.

2. "Just compensation" for purposes of an action for diminution in value means the sum of money that is equal to the reduction in fair market value of the property resulting from the enactment of the land use law as of the date of enactment of the land use law.

3. "Land use law" means any statute, rule, ordinance, resolution or law enacted by this state or a political subdivision of this state that regulates the use or division of land or any interest in land or that regulates accepted farming or forestry practices.

4. "Owner" means the holder of fee title to the subject real property.

5. "Public use":

(a) Means any of the following:

(i) The possession, occupation, and enjoyment of the land by the general public, or by public agencies;

(ii) The use of land for the creation or functioning of utilities;

(iii) The acquisition of property to eliminate a direct threat to public health or safety caused by the property in its current condition, including the removal of a structure that is beyond repair or unfit for human habitation or use; or

(iv) The acquisition of abandoned property.

(b) Does not include the public benefits of economic development, including an increase in tax base, tax revenues, employment or general economic health.

6. "Taken" and "taking" mean the transfer of ownership or use from a private property owner to this state or a political subdivision of this state or to any person other than this state or a political subdivision of this state.

§ 12-1137 Applicability

(Caution: 1998 Prop. 105 applies)

If a conflict between this article and any other law arises, this article controls.

§ 12-1138 Severability

(Caution: 1998 Prop. 105 applies)

If any provision of this act or its application to any person or circumstance is held invalid that invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

Article 3 Eminent Domain for Public Works

§ 12-1141 Definitions

In this article, unless the context otherwise requires:

1. "Authorized corporation" means a corporation or association engaged or about to engage in a public works project, as defined in this article, for a public use, but the construction of the public works project and its conduct thereafter by the corporation or association is subject to regulation or supervision by a federal agency, as defined in this article, or a state public body, as defined in this article, whether by virtue of an agreement, provision of law or otherwise.

2. "Court" means the court in which jurisdiction over proceedings under this article is vested by the provisions of section 12-1142.

3. "Federal agency" means the United States, the federal emergency administration of public works or any other agency or instrumentality, corporate or otherwise, of the United States.

4. "Plaintiff" means the person by whom proceedings for acquisition of real property, as defined in this article, are instituted pursuant to the provisions of section 12-1142.

5. "Public works project" means a work or undertaking which is financed in whole or in part by a federal agency, as defined in this article, or by a state public body, as defined in this article.

6. "Real property," "property" or "land" means all lands, including improvements and fixtures thereon, lands under water, all easements and hereditaments, corporeal or incorporeal, and every estate, interest and right, legal or equitable, in lands or water, and all rights, interests, privileges, easements, encumbrances and franchises relating thereto, including terms for years and liens of judgment, mortgage or otherwise.

7. "State public body" means the state or a county, city, town, municipal corporation, authority or any other subdivision, agency or instrumentality thereof, corporate or otherwise.

§ 12-1142 Agencies qualified to institute proceedings; jurisdiction of court; right of plaintiff to enter upon land

A. A federal agency, state public body or authorized corporation may institute condemnation proceedings under this article for acquisition of real property necessary for a public works project. The proceedings may be instituted in the superior court in a county in which any part of the real property or the proposed public works project is located, and they shall be entitled to precedence over other civil actions.

B. The plaintiff may enter upon the real property proposed to be acquired for the purpose of making a survey thereof, or posting any notice thereon required by this article. The survey and posting of notice shall be done in such manner as will cause the least possible inconvenience to the owners of the property.

§ 12-1143 Complaint

A proceeding under this article may be instituted by filing a complaint which shall be sufficient if it sets forth:

1. The name of plaintiff.

2. A description of the property, sufficient for identification thereof, to which there may be attached a plat or map thereof.

3. A statement that the acquisition of the property by plaintiff is necessary for a public works project and a brief general description of the public works project.

4. A statement that the action is instituted under this article.

5. An appropriate prayer for relief.

§ 12-1144 Inclusion of separate parcels in single action

Any number of parcels of land, whether owned by the same or different persons and whether contiguous or not, may be included and condemned in one action, if the parcels are to be used for a single public works project.

§ 12-1145 Notice of proceedings; effect of filing notice

A. Notice of the action shall be given by one publication in a newspaper having a general circulation in each county in which any part of the property sought to be condemned is located. The notice shall be published at least twenty and not more than thirty days prior to the date set for the hearing on the validity of the proceedings. The notice shall be in substantially the following form:

"TO WHOM IT MAY CONCERN:

Notice is hereby given that _______________ (here insert name of plaintiff) has filed a complaint in the above court under the laws relating to the condemnation of real property for public works projects to acquire by condemnation for _________________ (here give brief general description of the public works project for which the land is sought to be acquired), the following described land:

(Here describe the land sufficiently for identification thereof. The description may be by a plat or map.)

Notice is further given that on ____________ (here insert date of hearing, which must be at least twenty days and not more than thirty days after the date of publication) there will be a hearing in this court, at the opening thereof, for the following purposes:

1. To determine the validity of the action and the right of plaintiff, if it so elects, to take title to and possession of such property prior to final judgment, as authorized by section 12-1155, and any persons having an interest in or lien upon the above described property shall be deemed to have waived their rights thereafter to object to the court's decision with respect to such issue, unless prior to that date they have filed in writing with the clerk of the court their objection thereto.

2. To consider the appointment of a special master to determine the compensation to be awarded for such property and the persons entitled thereto, unless written demand for a jury is filed with the court before the date of hearing, in which event the compensation to be awarded to the person filing such demand shall be ascertained by jury trial and not by special master.

3. Fixing the date and place at which the special master will hear and determine the compensation to be paid for such property and the person entitled thereto.

Notice is further given that all claims or demands for compensation because of the taking and condemnation of such property shall be filed with the above court before _____________ (here insert a date fifteen days after the date above specified for the court hearing), or the compensation will be deemed waived.

Dated the _________________ day of ___________________

---

Clerk of the court"

B. Notice of the action shall also be given:

1. By posting a copy of the notice in conspicuous places on the real property sought to be condemned.

2. By filing a copy of the notice in the office of the clerk of the court in which such proceedings are pending.

3. By filing, in the same manner as lis pendens is filed, a copy of the notice in the office of the county recorder in each county in which any part of the real property is located.

C. The publication, posting and filing shall constitute legal and sufficient notice of the action to all persons having any interest in or lien upon the property described in the notice. Filing of the notice in the office of the county recorder shall be constructive notice of the proceedings to all persons who subsequently acquired an interest in or lien upon the property, and plaintiff shall take all property condemned under this article free of the claims of such persons.

§ 12-1146 Waiver of certain rights by persons in interest; determination of issues; judgment on issues; appointment of guardian ad litem

A. All persons who have not filed written objections with the court prior to the time of the hearing specified in the notice prescribed by section 12-1145, shall be deemed to have waived the right to file objections as to the sufficiency and validity of the complaint, the action and the relief sought thereby, and of the right of plaintiff to take title and possession prior to final judgment, as authorized by section 12-1155. All persons who have not filed with the clerk of the court prior to the date of hearing specified in the notice prescribed in section 12-1145, written demand for trial by jury as to the amount of compensation to be awarded shall be deemed to have waived the right.

B. The court, at the time specified in the notice, after hearing and determining all issues of fact and law raised by the objections which have been filed, shall enter a final judgment with respect to such issues, and thereafter there shall remain for determination only the amount of the compensation to be paid and the persons entitled thereto.

C. If an infant or other person under legal disability does not appear in the proceedings by his duly authorized legal representative, the court shall appoint a guardian ad litem to represent such person's interest in the proceedings before the special master appointed as provided by section 12-1147.

§ 12-1147 Special master; duties; qualifications; compensation; oath; limitation upon powers

A. The court, at the time of the hearing, shall appoint a special master to fix the amount of damages and compensation for the taking and condemnation of the property described in the complaint, to determine the persons entitled thereto and to report such facts to the court.

B. The special master shall be a disinterested person not related to anyone having an interest in or lien upon the property sought to be condemned. The compensation of the special master shall not exceed fifteen dollars per day plus travel and subsistence expenses.

C. The special master immediately after appointment shall subscribe to an oath that to the best of his ability he will truly find and return the compensation for the taking and condemnation of the property and the persons entitled thereto.

D. This section and the succeeding sections of this article pertaining to the appointment, duties and powers of, and proceedings before, a special master shall not apply to any person who has filed a written demand for trial by jury as to the amount of compensation. The rights of such person as to the amount of compensation shall be determined by jury trial and not by the special master.

§ 12-1148 Notice of hearing by special master

A. Immediately after being appointed and taking the oath, the special master shall send notice by registered mail to all persons who have appeared in the action, or to their attorneys of record, and to all others having any interest in or lien upon the real property sought to be condemned, as shown by the records of the office of the county recorder, and to guardians ad litem appointed pursuant to the provisions of section 12-1146. The notice shall be addressed to such persons at their respective last known addresses and shall be substantially in the following form:

"IN THE COURT FOR THE OF

TO WHOM IT MAY CONCERN:

Notice is hereby given that (here insert name of plaintiff) has filed a complaint in the above court to acquire by condemnation under the laws relating to the condemnation of real property for public works projects for (here give a brief general description of the public works project for which the land is sought to be acquired), the following described land: (Here describe the land sufficiently for the identification thereof. The description may be by a plat or map).

All persons having an interest in or lien upon the above described property, for which compensation will be demanded, are hereby notified that all claims or demands for compensation by reason of the taking and condemnation of such property shall be filed in writing with said court before (here insert date at least fifteen days after the date set for the court hearing in the notice specified in section 12-1145), and shall be deemed waived unless so filed, and that on a hearing will be held by the special master at (insert time and place fixed by the court for such hearing) with respect to the amount of compensation to be paid for the property sought to be condemned, and the persons entitled thereto.

Dated day of

Special master appointed by the court."

B. The special master shall also cause a copy of the notice to be posted in conspicuous places on the property sought to be condemned.

§ 12-1149 Hearing by special master

A. After notice by mailing and posting has been given as provided by section 12-1148, the special master, on the date for hearing specified in the notice, shall proceed immediately to hear and determine the question of just compensation for the taking and condemnation of the property and the persons entitled to the compensation.

B. The special master may issue subpoenas, administer oaths to witnesses, receive evidence and have it recorded.

§ 12-1150 Admissibility of certain evidence before special master; effect of increased property value upon award

A. For the purpose of determining the value of the real property sought to be condemned and fixing just compensation therefor, the following evidence, in addition to other evidence which is relevant, material and competent, shall be admitted and considered relevant, material and competent by the special master:

1. Evidence that a building or improvement is unsafe or unsanitary or a public nuisance, or is in a state of disrepair, and of the cost to correct the condition, even though no action has been taken by local authorities to remedy the condition.

2. Evidence that any public body of the state, charged with the duty of abating or requiring the correction of nuisances or like conditions, or demolishing unsafe or unsanitary structures, issued an order directing the abatement or correction of such conditions existing with respect to the building or improvement or the demolition of the building or improvement, and of the cost which compliance with the order would entail.

3. Evidence of the last assessed valuation of the property for purposes of taxation and of affidavits or tax return made by the owner in connection with such assessment which reflect the value of the property, and income tax returns of the owner disclosing amounts deducted on account of obsolescence or depreciation of the property.

4. Evidence that the buildings and improvements are being used for illegal purposes or are so overcrowded as to be dangerous or injurious to the health, safety, morals or welfare of the occupants thereof, and the extent to which the rentals from such buildings or improvements are enhanced by reason of such use.

5. Evidence of the price and other terms upon a sale or the rent reserved and other terms of a lease or tenancy relating to the property or to similar property in the vicinity when the sale or leasing occurred or the tenancy existed within a reasonable time of the hearing.

B. The award of compensation shall not be increased by reason of an increase in the value of the property resulting from the public works project to be placed thereon.

C. No allowance shall be made for improvements begun on property after publication of the notice specified in section 12-1145, except upon good cause being shown.

§ 12-1151 Limitation on time for filing report of special master

The report of the special master shall be filed with the clerk of the court in which the action is pending within thirty days after the date of the master taking the oath, unless further time is granted by the court. The court shall grant additional time for filing the report only on a showing that the report cannot, with due diligence, be prepared within the time fixed.

§ 12-1152 Notice of filing report and of hearing objections to report; waiver of right to object

Upon filing the report by the special master, the court, without delay, shall fix a date for hearing objections filed thereto. Notice that the report has been filed, that all objections thereto shall be filed with the court within ten days after the date of mailing the notice, and that the court has fixed a certain date, which shall be stated therein, for the hearing of such objections, shall be given by sending a copy of the notice by registered mail to all persons who have appeared in the action, or their attorneys of record, at their last known addresses. After ten days subsequent to mailing the notice, all objections to the report shall be deemed waived by all persons who have not filed written objections with the court.

§ 12-1153 Final judgment; hearing objections to findings or report; proceedings upon rejection of report; vesting of property

A. If no objections are filed to the special master's report, the court, but only on motion of plaintiff unless title to the property has vested in plaintiff, shall enter a final judgment fixing the compensation to be paid for the property and the persons entitled thereto. If objections are filed to the special master's report, the court on the date specified in the notice provided for by section 12-1152, shall hear and determine such questions of law and fact as are raised by the exceptions, and may approve, disapprove or modify the special master's findings or may reject the special master's report in its entirety.

B. If the special master's report is rejected in its entirety, the court shall at once appoint another special master in the same manner the first special master was appointed, and he shall have the same powers and duties as the special master first appointed, except that notice of the time for filing claims and the hearing thereon may be given by registered mail to all persons who have appeared in the proceedings, or their attorneys of record, at their last known addresses, and no other notice shall be necessary.

C. If the court approves the special master's report with or without modifications, the court, but only on motion of plaintiff unless title to the property has previously vested in plaintiff, shall enter a final judgment fixing the compensation to be paid for the property and the persons entitled thereto.

D. If title to the property has not previously been vested in plaintiff, the title and right to possession of the property shall vest in plaintiff immediately upon entry of the final judgment and upon deposit in court by plaintiff of the amount of the judgment fixed by the court as the compensation for such property. Upon entry of the judgment and vesting of title, the court shall designate the day, not exceeding thirty days thereafter except upon good cause shown, on which the parties in possession of the property shall be required to surrender possession to plaintiff.

§ 12-1154 Filing certified copy of judgment

A. Upon rendition of final judgment vesting title in plaintiff, the clerk of the court shall make and certify, under the seal of the court a copy or copies of the judgment, which shall be recorded in the office of the county recorder, and the recording shall constitute notice to all persons of the contents thereof.

B. A copy of the judgment certified by the clerk of the court shall be admissible in evidence in any judicial proceedings.

§ 12-1155 Application by plaintiff to take possession; notice of hearing; money deposit; bond in lieu of deposit; judgment for deficiency

A. The plaintiff may at any time after determination of the issues as provided in section 12-1146, if the court at such time found that the use for which the property is sought to be condemned is a necessary use, make application to the court for an order permitting plaintiff to take possession of and use the property sought to be condemned for the purposes prayed for.

B. Upon filing the application a time for the hearing thereof shall be fixed and notice thereof served upon the parties in interest by personal service within the state, or by publication if they reside without the state, in such manner as the court may direct.

C. On the day of the hearing, the court shall receive evidence as to the probable damages to each owner, possessor or person having an interest in each parcel of real property sought to be condemned, and may direct that upon a deposit of money equal to the amount of such probable damage so found to each person in interest, plaintiff shall be let into the possession and full use of the parcels of real property as described in the order for the purposes therein specified.

D. Monies so paid shall be deposited with the clerk of the court, and held by him to the use and benefit of each person having an interest in each parcel of real property sought to be condemned, subject to final judgment upon trial of the action, and held also as a fund to pay any further damages and costs recovered in the action as well as all damages sustained by defendant if for any cause the property is not finally taken for public use. The clerk of the court shall be liable to plaintiff for the deposit.

E. The parties may stipulate as to the amount of deposit, or for a bond from plaintiff in lieu of the deposit. The stipulation or evidence of the deposit shall not be introduced in evidence or used to the prejudice of any party in interest on the trial of the action.

F. The ultimate amount of compensation shall be fixed in the manner specified in this article. If the amount fixed exceeds the amount deposited by plaintiff, the court shall enter judgment against plaintiff in the amount of the deficiency, together with interest at the rate of six per cent per annum on the deficiency, from the date of the order of the court permitting plaintiff to take possession as provided by this section, but subject to abatement for use, income, rents or profits derived from the property by the owner thereof subsequent to the date of the order. The court shall order plaintiff to deposit the amount of the deficiency in court for the use and benefit of the person entitled thereto.

§ 12-1156 Right to dismiss

At any time prior to vesting title to the property in the plaintiff, the plaintiff may withdraw or dismiss the plaintiff's complaint with respect to any or all the property described in the complaint, except that if the plaintiff causes the complaint to be dismissed without prejudice before payment of the compensation and damages awarded the defendant by the court or jury, the plaintiff shall not initiate any eminent domain proceeding with respect to the same property for the same or a related project for at least two years after the date of the verdict or judgment.

§ 12-1157 Effect of vesting of title

Upon vesting of title to any property in plaintiff, all the right, title and interest of all persons having an interest therein or lien thereupon shall be divested immediately, and such persons thereafter shall be entitled only to receive compensation for the property.

§ 12-1158 Effect of payment into court; security; disbursement

A. The payment into court by plaintiff of the amount of the judgment, or the deposit in court of the amount fixed and determined as provided in section 12-1155, shall be deemed a payment or deposit of money for the use of the persons entitled thereto. The payment or deposit shall constitute a payment to the persons entitled thereto to the extent of the monies so paid or deposited in the court.

B. Any such payment shall be as valid and effectual in all respects as if made by plaintiff directly to the person entitled thereto, or in the case of a person under legal disability, as if made to his guardian, whether or not:

1. Such person or his whereabouts is known or unknown.

2. Such person is under a legal disability.

3. There are adverse or conflicting claims to such awards.

C. The money paid into court shall be secured in the manner directed by the court, and shall be paid to the persons found entitled thereto as provided by the final judgment of the court.

§ 12-1159 Action to recover award paid to wrong person

If an award is paid to a person not entitled thereto, the sole recourse of the person entitled to the award is against the person to whom it has been paid. In such event the person entitled to the award may bring an action to recover the award, with interest and costs, as money had and received to his use by the person to whom the award was paid.

§ 12-1160 Appeal; stay of proceedings; bond

A. Any time within thirty days from filing an interlocutory or final order or judgment by the court, any person or persons of record in the action who have filed exceptions at any stage of the action within the time and in the manner specified, may appeal therefrom, but only with respect to those questions or issues which were raised by the exceptions.

B. The taking of an appeal shall not operate to stay the action, except when the person or persons appealing have obtained a stay of execution of the judgment or order appealed from. In such event the proceedings shall be stayed only with respect to the person or persons appealing and as to their respective interests in the action. Upon taking an appeal, the action shall be deemed severed as to the person or persons appealing and their respective interests in the action.

C. An interlocutory or final order or judgment shall be final and conclusive upon all persons affected thereby who have not appealed within the time prescribed by this section.

D. Any plaintiff, other than a corporation authorized to transact business in this state, may appeal without giving bond, but any other person or persons appealing shall give bond with good and sufficient surety to be approved by the court, conditioned that the party appealing will pay all costs taxed against such party on the appeal.

§ 12-1161 Costs

If plaintiff, prior to making the award, has tendered to an interested person for his real property, or deposited in court for the property, an amount which the interested person refused to accept or agree to as just compensation, all costs shall be assessed against such person if the amount tendered or deposited is equal to or in excess of the award fixed or confirmed by the court with respect to such parcel of real property.

§ 12-1162 Supplemental nature of article; procedure

A. The powers conferred by this article shall be additional and supplemental to and not in substitution for the power conferred by any other law. No other law pertaining to eminent domain is repealed by this article in whole or in part. Eminent domain may be exercised under this article even though another law may provide for the exercise thereof for like purposes, and shall be operative without regard to the requirements, restrictions or procedural provisions of any other law.

B. Procedure not prescribed in this article shall be the procedure otherwise prescribed by law of the state.

Article 4 Forcible Entry and Detainer

§ 12-1171 Acts which constitute forcible entry or detainer

A person is guilty of forcible entry and detainer, or of forcible detainer, as the case may be, if he:

1. Makes an entry into any lands, tenements or other real property, except in cases where entry is given by law.

2. Makes such an entry by force.

3. Wilfully and without force holds over any lands, tenements or other real property after termination of the time for which such lands, tenements or other real property were let to him or to the person under whom he claims, after demand made in writing for the possession thereof by the person entitled to such possession.

§ 12-1172 Definition of forcible entry

A "forcible entry," or an entry where entry is not given by law within the meaning of this article, is:

1. An entry without the consent of the person having the actual possession.

2. As to a landlord, an entry upon the possession of his tenant at will or by sufferance, whether with or without the tenant's consent.

§ 12-1173 Definition of forcible detainer; substitution of parties

There is a forcible detainer if:

1. A tenant at will or by sufferance or a tenant from month to month or a lesser period whose tenancy has been terminated retains possession after his tenancy has been terminated or after he receives written demand of possession by the landlord.

2. The tenant of a person who has made a forcible entry refuses for five days after written demand to give possession to the person upon whose possession the forcible entry was made.

3. A person who has made a forcible entry upon the possession of one who acquired such possession by forcible entry refuses for five days after written demand to give possession to the person upon whose possession the first forcible entry was made.

4. A person who has made a forcible entry upon the possession of a tenant for a term refuses to deliver possession to the landlord for five days after written demand, after the term expires. If the term expires while a writ of forcible entry applied for by the tenant is pending, the landlord may, at his own cost and for his own benefit, prosecute it in the name of the tenant.

§ 12-1173.01 Additional definition of forcible detainer

A. In addition to other persons enumerated in this article, a person in any of the following cases who retains possession of any land, tenements or other real property after he receives written demand of possession may be removed through an action for forcible detainer filed with the clerk of the superior court in accordance with this article:

1. If the property has been sold through the foreclosure of a mortgage, deed of trust or contract for conveyance of real property pursuant to title 33, chapter 6, article 2.

2. If the property has been sold through a trustee's sale under a deed of trust pursuant to title 33, chapter 6.1.

3. If the property has been forfeited through a contract for conveyance of real property pursuant to title 33, chapter 6, article 3.

4. If the property has been sold by virtue of an execution and the title has been duly transferred.

5. If the property has been sold by the owner and the title has been duly transferred.

B. The remedies provided by this section do not affect the rights of persons in possession under a lease or other possessory right which is superior to the interest sold, forfeited or executed upon.

C. The remedies provided by this section are in addition to and do not preclude any other remedy granted by law.

§ 12-1174 Immateriality of time possession obtained by tenant

It is not material whether a tenant received possession from his landlord or became his tenant after obtaining possession.

§ 12-1175 Complaint and answer; service and return; notice and pleading requirements

A. When a party aggrieved files a complaint of forcible entry or forcible detainer, in writing and under oath, with the clerk of the superior court or a justice of the peace, summons shall issue no later than the next judicial day.

B. The complaint shall contain a description of the premises of which possession is claimed in sufficient detail to identify them and shall also state the facts that entitle the plaintiff to possession and authorize the action.

C. The summons shall be served at least two days before the return day, and return made thereof on the day assigned for trial.

D. Notwithstanding any other law, an agency of this state and an individual court may not adopt or enforce a rule or policy that requires a mandatory or technical form for providing notice or for pleadings in an action for forcible entry or forcible or special detainer. The form of any notice or pleading that meets statutory requirements for content and formatting of a notice or pleading is sufficient to provide notice and to pursue an action for forcible entry or forcible or special detainer.

§ 12-1176 Demand for jury; trial procedure

A. If a jury trial is requested by the plaintiff, the court shall grant the request. If the proceeding is in the superior court, the jury shall consist of eight persons, and if the proceeding is in the justice court, the jury shall consist of six persons. The trial date shall be no more than five judicial days after the aggrieved party files the complaint.

B. If the plaintiff does not request a jury, the defendant may do so on appearing and the request shall be granted.

C. The action shall be docketed and tried as other civil actions.

§ 12-1177 Trial and issue; postponement of trial

A. On the trial of an action of forcible entry or forcible detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into.

B. If a jury is demanded, it shall return a verdict of guilty or not guilty of the charge as stated in the complaint. If a jury is not demanded the action shall be tried by the court.

C. For good cause shown, supported by affidavit, the trial may be postponed for a time not to exceed three calendar days in a justice court or ten calendar days in the superior court.

§ 12-1178 Judgment; writ of restitution; limitation on issuance; criminal violation; notice

A. If the defendant is found guilty of forcible entry and detainer or forcible detainer, the court shall give judgment for the plaintiff for restitution of the premises, for all charges stated in the rental agreement and for damages, attorney fees, court and other costs and, at the plaintiff's option, all rent found to be due and unpaid through the periodic rental period, as described in section 33-1314, subsection C, as provided for in the rental agreement, and shall grant a writ of restitution. The person designated by the judge to prepare the judgment shall ensure that the defendant's social security number is not contained on the judgment.

B. If the defendant is found not guilty of forcible entry and detainer or forcible detainer, judgment shall be given for the defendant against the plaintiff for damages, attorney fees and court and other costs, and if it appears that the plaintiff has acquired possession of the premises since commencement of the action, a writ of restitution shall issue in favor of the defendant.

C. No writ of restitution shall issue until the expiration of five calendar days after the rendition of judgment. The writ of restitution shall be enforced as promptly and expeditiously as possible. The issuance or enforcement of a writ of restitution shall not be suspended, delayed or otherwise affected by the filing of a motion to set aside or vacate the judgment or similar motion unless a judge finds good cause.

D. A defendant who is lawfully served with a writ of restitution and who remains in or returns to the dwelling unit, as defined in section 33-1310, or remains on or returns to the mobile home space, as defined in section 33-1409, or the recreational vehicle space, as defined in section 33-2102, without the express permission of the owner of the property or the person with lawful control of the property commits criminal trespass in the third degree pursuant to section 13-1502.

E. If the defendant is found guilty of forcible entry and detainer or forcible detainer, the court shall give the defendant notice that a defendant who is lawfully served with a writ of restitution and who remains in or returns to the dwelling unit or remains on or returns to the mobile home space or the recreational vehicle space without the express permission of the owner of the property or the person with lawful control of the property commits criminal trespass in the third degree pursuant to section 13-1502.

§ 12-1179 Appeal to superior court; notice; bond

A. Either party may appeal from a justice court to the superior court in the county in which the judgment is given by giving notice as in other civil actions within five calendar days after rendition of the judgment pursuant to this section. The appeal shall be filed in accordance with this section, and the time to appeal shall not be extended or otherwise affected by the filing of a motion to set aside or vacate the judgment or similar motion.

B. A party seeking to appeal a judgment shall file with the notice of appeal a bond for costs on appeal. The justice of the peace shall set the bond in an amount sufficient to cover the costs on appeal. The bond shall be payable to the clerk of the justice court. If a party is unable to file a bond for costs on appeal, the party shall file with the justice court a notice of appeal along with an affidavit stating that the party is unable to give bond for costs on appeal and the reasons therefor. Within five court days after the filing of the affidavit, any other party may file, in the justice court, objections to the affidavit. The justice of the peace shall hold a hearing on the affidavit and objections within five court days thereafter. If the justice court sustains the objections, the appellant shall file, within five court days thereafter, a bond for costs on appeal as provided for in this section or in such lesser amount as ordered by the justice court.

C. A party seeking to appeal a judgment may stay the execution of either the judgment for possession or any judgment for money damages by filing a supersedeas bond. The justice court shall hold a hearing on the motion within five court days after the parties advise the justice court of their failure to stipulate on the amount of the bond. The stay is effective when the supersedeas bond or bonds are filed.

D. The party seeking to stay the execution of the judgment for possession shall file a supersedeas bond in the amount of rent accruing from the date of the judgment until the next periodic rental date, together with costs and attorney fees, if any. The tenant shall pay to the clerk of the justice court, on or before each periodic rental due date during the pendency of the appeal, the amount of rent due under the terms of the lease or rental agreement. Such amounts shall be made payable by the justice court to the owner, landlord or agent as they accrue to satisfy the amount of periodic rent due under the lease or rental agreement. In all cases where the rent due under the terms of the lease or rental agreement is paid through the justice court as set forth in this subsection, the order of the court may include a one-time handling fee in the amount of ten dollars to be paid by the party seeking to stay the execution of the judgment for possession. In no event shall the amounts paid per month exceed the amount of monthly rent charged by the owner for the premises. If the tenant raises habitability as provided for in sections 33-1324 and 33-1364 as an affirmative defense to the nonpayment of rent or the tenant has filed a counterclaim asserting a habitability issue, the justice court shall retain all money paid under this subsection pending a final judgment.

E. If during the pendency of the appeal the party seeking to stay the execution of the judgment for possession fails to pay the rent on the periodic rental due date, the party in whose favor a judgment for possession was issued may move the justice court to lift the stay of the execution of the judgment for possession. The justice court shall hear the motion to lift the stay of the execution of the judgment for possession and release accrued monies, if any, within five court days from the failure of the party to pay the periodic rent due under the terms of the lease or rental agreement. If the judgment appealed from involves a finding of a material and irreparable breach pursuant to section 33-1368 or section 33-1476, subsection D, paragraph 3 the justice court shall treat it as an emergency matter and conduct a hearing on a motion to lift the stay of execution of the writ of restitution within three days. If the third day is a Saturday, Sunday or other legal holiday, the hearing shall be held on the next day thereafter.

F. The party seeking to stay the execution of the judgment for money damages shall file a supersedeas bond in the amount of the judgment, together with costs and attorney fees, if any. The amount of the bond shall be fixed by the court and payable to the clerk of the justice court.

§ 12-1180 Stay of proceedings on judgment; record on appeal

When the appeal bond is filed and approved, the justice of the peace shall stay further proceedings on the judgment and immediately prepare a list of all entries on the justice's docket in the action and transmit it, together with all the original papers, to the clerk of the superior court of the county in which the trial was had.

§ 12-1181 Trial and judgment on appeal; writ of restitution

A. On trial of the action in the superior court, appellee, if out of possession and the right of possession is adjudged to him, shall be entitled to damages for withholding possession of the premises during pendency of the appeal and the court shall also render judgment in favor of appellee and against appellant and the sureties on his bond for damages proved and costs.

B. The writ of restitution or execution shall be issued by the clerk of the superior court and shall be executed by the sheriff or constable as in other actions.

§ 12-1182 Appeal to supreme court; stay and bond

A. In a forcible entry or forcible detainer action originally commenced in the superior court, an appeal may be taken to the supreme court as in other civil actions.

B. The appeal, if taken by the party in possession of the premises, shall not stay execution of the judgment unless the superior court so orders, and appellant shall file a bond in an amount fixed and approved by the court, conditioned that appellant will prosecute the appeal to effect and will pay the rental value of the premises pending the appeal and all damages, costs, and rent adjudged against him by the superior court or the supreme court.

§ 12-1183 Proceedings no bar to certain actions

The proceedings under a forcible entry or forcible detainer shall not bar an action for trespass, damages, waste, rent or mesne profits.

Article 5 Lis Pendens

§ 12-1191 Notice of pendency of action affecting title to real property; filing; constructive notice to purchaser or encumbrancer; release of notice of pendency of action; failure to issue release; liability

A. In an action affecting title to real property, the plaintiff at the time of filing the complaint, or thereafter, and the defendant at the time of filing the defendant's pleading when affirmative relief is claimed in such pleading, or thereafter, may file in the office of the recorder of the county in which the property is situated a notice of the pendency of the action or defense. In any action to foreclose a mechanics' or materialmen's lien pursuant to title 33, chapter 7, article 6, the lien claimant shall file a notice of pendency of action as prescribed by section 33-998 within five days of filing the action or raising the defense. The notice shall contain the names of the parties, the object of the action or affirmative defense, the relief demanded and a description of the property affected.

B. The recorder shall file the notice and record and index it in the names of the parties to the action, and thereafter a purchaser or encumbrancer of the property affected shall be held to have constructive notice of the pendency of the action and the claims therein made except as prescribed in subsection D of this section.

C. If a notice of pendency of action has been recorded pursuant to this section and the action is dismissed without prejudice for lack of prosecution, the plaintiff or plaintiffs of the action, within thirty days after such dismissal, shall issue to the defendant of the action a release of the notice of pendency of action. Such release shall be in the form of a recordable document. Failure to grant such release shall subject the person filing the notice of action or defense to liability in the amount of one thousand dollars and also to liability for actual damages.

D. After the withdrawal or release of a notice of pendency of action or recordation of a certified copy of an order expunging a notice of pendency of action and before the recordation of a certified copy of the judgment or decree in the action, the following apply:

1. The notice of pendency of action and any of the information derived from the notice does not constitute actual or constructive notice of any of the matters contained in the notice or any matters related to the action.

2. The notice of pendency of action and any of the information derived from the notice does not create a duty of inquiry in any person dealing thereafter with the affected property.

3. Except for a person who is a nonfictitious party to the action at the time of recording the notice of withdrawal, the release of the notice of pendency of action or the order expunging the notice of pendency of action, a person shall not be deemed to have actual knowledge of the action, any of the matters contained in the notice or any matters related to the action, if both of the following apply:

(a) That person for valuable consideration becomes a purchaser, transferee, mortgagee or other encumbrancer of any interest in the real property that is subject to the action.

(b) That person acquires that interest by a conveyance that is recorded after the notice of withdrawal or release or order of expungement and before the recording of a certified copy of a judgment or decree issued in the action.

4. A person described in paragraph 3 shall not be deemed to have notice of the action or notice of any matters related to the action even if the person has actual knowledge of the action or matter and regardless of when or how that knowledge was acquired.

Article 6 Opening Private Way of Necessity

§ 12-1201 Private way of necessity defined

"Private way of necessity" as used in this article means right of way on, over, across, or through the land of another for means of ingress and egress, and the construction and maintenance thereon of roads, overhead transmission lines, pole lines, power lines, canals, ditches, flumes, shafts, tunnels, pipe lines, drains, including, but not limited to, embankments, diversion dams, dikes, ditches, canals, flumes and levees for the purpose of removing water from land or preventing accumulation of water on land, and tramways, including, but not limited to, aerial tramways and industrial railroads, for mining, milling, lumbering, agricultural, domestic or sanitary purposes.

§ 12-1202 Right to private way of necessity; limitation

A. An owner of or a person entitled to the beneficial use of land, mines or mining claims and structures thereon, which is so situated with respect to the land of another that it is necessary for its proper use and enjoyment to have and maintain a private way of necessity over, across, through, and on the premises, may condemn and take lands of another, sufficient in area for the construction and maintenance of the private way of necessity.

B. If the condemnation is upon, over, or affects the range lands of another, the area condemned shall be strictly defined, and livestock driven upon or over the private way shall be accompanied by and under the control of sufficient drivers or herders to confine the livestock to the condemned area, and the livestock shall be so confined to that area and kept moving directly across the property condemned until they have been completely removed from the condemned area.

§ 12-1203 Violation; classification

A person violating the provisions of section 12-1202 is guilty of a petty offense and shall be liable to the injured person for any damages incurred.

Article 7 Partition

§ 12-1211 Compelling partition; complaint

A. The owner or claimant of real property or any interest therein may compel a partition of the property between him and other owners or claimants by filing a complaint in the superior court of the county in which the property, or a portion thereof, is situated.

B. The complaint shall state:

1. The names and residences, if known, of each of the owners or claimants.

2. The share or interest which plaintiff and the owners or claimants own or claim, so far as known to plaintiff.

3. A description of the real property to identify it and its estimated value.

§ 12-1212 Unknown owner; notice and service by publication; protection of rights in decree

A. If plaintiff makes affidavit that an undivided portion of the land described in the complaint is owned by some person unknown to affiant, a summons shall be issued to the unknown owner. The summons shall contain a brief statement of the nature of the action and a description of the interest of the unknown owner, and shall command him to appear and answer as in ordinary cases.

B. The summons shall be served by publication in some newspaper in the county where the summons issues, if a newspaper is published in the county. If no newspaper is published in the county, publication shall be made in the nearest county in which a newspaper is published, for four successive weeks.

C. If no appearance is entered within the time set forth in the summons, the court shall proceed as in other cases where service is made by publication.

D. The court shall in its decree protect the rights of the unknown owner.

§ 12-1213 Hearing and issues

Upon the hearing the court shall determine the share or interest in the property sought to be divided of each of the owners or claimants, and all questions affecting the title thereto, or any part thereof.

§ 12-1214 Abstract of title; inspection; cost

A. If it is necessary to have an abstract of title of the property to be partitioned, plaintiff may procure one before commencing the action and may in his complaint state that he has done so and that the abstract is subject to inspection and use of all parties to the action, and designate a place where it will be kept for inspection. Otherwise the court may, upon application of any one of the parties, authorize such party to procure an abstract which when made shall be kept at some place designated by the court for inspection and use of all parties, any of whom may make a copy thereof.

B. The expense reasonably incurred in procuring an abstract shall be allowed to the party incurring it, with interest.

§ 12-1215 Entry and contents of judgment; appointment of commissioners; surveyor

A. The court shall enter a judgment directing that partition of the real property be made in accordance with the shares or interests of the parties entitled thereto and specifying the share or interest of each party.

B. The court shall appoint three or more disinterested persons commissioners to make the partition in accordance with the judgment. The clerk of the court shall forthwith notify the commissioners of their appointment, and shall deliver to one of them a certified copy of the judgment of partition.

C. The court may also appoint a surveyor to assist the commissioners in making the partition.

§ 12-1216 Duties of commissioners

The commissioners or a majority of them shall partition the property in accordance with the judgment. They may cause the property to be surveyed into several tracts. They shall divide the property into as many shares as there are persons entitled thereto, each share to contain one or more tracts as the commissioners deem proper, having due regard in the division to the situation, quantity and advantages of each share so that the shares are equal in value as nearly as possible, in proportion to the interests of the parties. The commissioners shall then proceed by lot and set apart to each of the parties entitled one of the shares as determined by the judgment of the court.

§ 12-1217 Report of commissioners

A. When the partition is completed, the commissioners shall report in writing and under oath to the court. The report shall set forth:

1. A description of the real property divided.

2. The several tracts or parcels into which the real property was divided by them, describing particularly each of such tracts or parcels.

3. The number of shares, the land which constitutes each share, and the estimated value of each share.

4. The allotment of each share.

B. The report shall be accompanied by such field notes and maps as are necessary to make it intelligible.

§ 12-1218 Report of commissioners when property incapable of fair division; sale; distribution of proceeds

A. If the commissioners are of the opinion that fair and equitable division of the property or any part thereof cannot be made, they shall report such opinion to the court, stating their reasons therefor, and if the court approves such report, it shall order a sale of the property which is incapable of partition.

B. If on the trial of the action, it appears to the court that fair partition of the property cannot be made without depreciating the value thereof, or that for any reason a sale is more beneficial to the parties or any of them, it shall in the first instance, enter a judgment directing that the real property be sold.

C. The court shall appoint a commissioner to make the sale provided by subsection B and return the proceeds into court to be divided between the persons entitled thereto according to their respective interests. Such commissioner shall sell the real property in the time and manner, and after notice, as directed by the court.

D. The purchaser shall, on production of his deed, be entitled to a writ of assistance to be issued by the clerk, commanding the sheriff or a constable of the county to put him in possession.

§ 12-1219 Objection to commissioner's report; hearing

Any party may file objections to any report of the commissioners in partition, and a hearing of the objections shall be had as in other cases. If the report is found erroneous in a material respect, or unequal and unjust, it shall be rejected and other commissioners shall be appointed by the court and the same proceedings had as in the first instance.

§ 12-1220 Partition involving future estates; title of property after partition

A. When a partition is made between an owner who holds an estate for a term of years or for life with others who hold equal or greater estates, the partition shall not be prejudicial to those entitled to the reversion or remainder of such estates.

B. Each party to whom a share is allotted shall hold the share in severalty under the same conditions and covenants that it was held before partition was made, and no warranty, lease or right whatsoever shall be impaired or affected by the partition.

§ 12-1221 Effect of judgment confirming report of commissioners

The judgment of the court which confirms the report of partition shall vest in each party to whom a share is allotted the title to such share as against the other parties to the partition, their heirs, executors, administrators or assigns, as fully and effectually as the deed of the parties could vest the property and shall have the same force and effect as a warranty deed of conveyance from such other parties and each of them.

§ 12-1222 Partition of personal property; parties

Part owners of personal property may be compelled to make partition between them by an action for partition commenced in the court having jurisdiction of the value of such property in the same manner as other civil actions are commenced. The several owners or claimants of such property shall be summoned as in other actions of partition. The separate value of each article of the personal property shall be ascertained and an allotment in kind made to each owner as he is entitled.

§ 12-1223 Writ of possession or sale of personal property

A. When a partition in kind of personal property is ordered, a writ shall be issued in accordance with the judgment, commanding the sheriff or a constable of the county where the property is located to put the parties forthwith in possession of the property allotted.

B. When the property will not admit of an equitable partition, the court shall ascertain the proportion to which each owner is entitled and shall order that the property be sold. An execution shall be issued to the sheriff or constable of the county where the property is located, describing the property and commanding the officer to sell it as in cases of execution and pay over the proceeds of sale to the parties entitled thereto in the proportion ascertained by judgment of the court.

§ 12-1224 Proceedings not exclusive; rules of procedure

A. The provisions of this article shall not preclude partition in any other manner authorized by law.

B. The rules of pleading and procedure which govern other civil actions shall govern actions for partition when not in conflict with the proceedings provided by this article.

§ 12-1225 Compensation of commissioners and surveyor

A. The commissioners in partition and the surveyor shall be paid such sum per day for each day they are engaged in making and returning the partition as the court deems reasonable, considering the services rendered, and the compensation allowed shall be taxed and collected as costs of the action.

B. The court shall adjudge the costs to be paid by each party to whom a share has been allotted in proportion to the value of such share.

Article 8 Receivership

§ 12-1241 Power of superior court to appoint receiver

The superior court or a judge thereof may appoint a receiver to protect and preserve property or the rights of parties therein, even if the action includes no other claim for relief.

§ 12-1242 Application for appointment of receiver; verification; service; notice of hearing; restraining order pending hearing

An application for the appointment of a receiver shall be in writing, supported by affidavit and served upon the adverse party, together with reasonable notice of the time of hearing. The adverse party may file counteraffidavits, and the counteraffidavits, with such testimony as the court admits, shall be considered on hearing the application. The court may restrain the adverse party from removing, secreting or otherwise disposing of the property to the injury of the applicant, pending hearing the application for appointment of a receiver.

Article 9 Recovery of Real Property

§ 12-1251 Right of recovery; procedure

A. A person having a valid subsisting interest in real property and a right to immediate possession thereof may recover the property by action against any person acting as owner, landlord or tenant of the property claimed.

B. The action shall be commenced and prosecuted as other civil actions.

C. The heirs or devisees may themselves, or jointly with the personal representative, maintain an action for possession of the real property, or to quiet title thereto against any person except the personal representative.

D. An action involving title or right to possession of real property belonging to the estate of decedent may be brought by or against the personal representative without joining the heirs.

§ 12-1252 Title of plaintiff; joint owners; proof

A. The plaintiff must recover on the strength of his own title.

B. In an action by a tenant in common or joint tenant against his cotenant, plaintiff shall show, in addition to his evidence of right, that the defendant either denied plaintiff's right or did some act amounting to such denial.

§ 12-1253 Defendant as tenant; substitution of landlord; notice of action

A. If upon answer of defendant it appears that defendant claims only as a tenant, the answer shall also state the name and residence of the landlord. In such case, the landlord may be substituted by service of summons upon him and the judgment shall also be conclusive against the tenant.

B. A person acquiring title to land or an interest therein after commencement of the action shall take subject to notice of and without prejudice to the rights of the parties providing notice of lis pendens is filed in the manner and at the time provided for in section 12-1191.

§ 12-1254 Survey; order; service of order

The court on motion and after notice to the opposite party may grant an order allowing the party applying therefor to enter upon the land in controversy and make a survey for purposes of the action. The order shall describe the property, and a copy of the order shall be served upon the owner or person in occupancy.

§ 12-1255 Verdict

A. The verdict may specify the extent and quantity of plaintiff's estate and the premises to which he is entitled by metes and bounds or other sufficient description.

B. A general verdict in favor of plaintiff without specifications entitles plaintiff to the quantity of interest or estate in the premises as set forth and described in the complaint.

§ 12-1256 Damages; limitation; set-off

A. If the interest of plaintiff expires before the time in which he may be put in possession, he shall obtain judgment for damages only.

B. The plaintiff shall not recover for the use and occupation of the premises for more than five years prior to commencement of the action.

C. When plaintiff is entitled to damages for withholding, using or injuring the property, defendant may set off the value of permanent improvements made thereon to the extent of the damages.

§ 12-1257 Liability of tenant

A tenant in possession in good faith, under a lease or license from another, is not liable beyond the rent in arrears at the time the action is brought, and that which afterward accrues during continuance of his possession.

§ 12-1258 Allegation of growing crops; stay of execution; bond and conditions

If defendant alleges that he has a crop sowed, planted or growing on the premises, the judge or jury, finding for plaintiff, and also finding that fact, shall further find the value of the premises from the date of the trial until February 1 next succeeding. No execution for possession shall be issued until that time if the defendant executes, with surety to be approved by the clerk of the court, a bond in double such amount to plaintiff, conditioned to pay at such date the sum so assessed, and if not paid at maturity the court shall enter judgment upon the bond.

§ 12-1259 Judgment for plaintiff for rental value from time of judgment to delivery of possession

A. When plaintiff shows himself entitled to immediate possession of the premises, judgment shall be entered accordingly.

B. The plaintiff may also, on motion and ten days notice in writing, have judgment for the rent or rental value of the premises which accrues after judgment and before delivery of possession, unless judgment is stayed on appeal and bond given to suspend the judgment, in which event the motion may be made after affirmance of the judgment.

Article 10 Recovery of Rent or for Use of Real Property

§ 12-1271 Action to recover rent or to recover for use of real property

A person entitled thereto may bring an action for and recover rent, or a fair and reasonable satisfaction for the use and occupation of real property in the following cases:

1. When rent is due and in arrears on a lease.

2. When lands are held and occupied without a special agreement for rent, or when a tenant remains in possession after termination of his right of possession.

3. When possession is obtained under a written or oral agreement for the purchase of premises, and before deed is given, the right to possession is terminated by forfeiture or in compliance with the agreement, and possession is wrongfully refused or neglected to be given on demand made by the party entitled thereto.

4. When land is sold under a judgment of court and deed is issued, if the party to such judgment or a person under him wrongfully refuses or neglects to surrender possession of the land after demand by the person entitled to possession.

Article 11 Redemption

§ 12-1281 Parties entitled to redeem property

Property sold subject to redemption, or any part sold separately, may be redeemed by the following persons or their successors in interest:

1. The judgment debtor or his successor in interest in the whole or any part of the property.

2. A creditor having a lien by judgment or mortgage on the property sold, or on some share or part thereof, subsequent to that on which the property was sold.

§ 12-1282 Time for redemption

A. The judgment debtor or his successors in interest may redeem at any time within thirty days after the date of the sale if the court determined as part of the judgment under which the sale was made that the property was both abandoned and not used primarily for agricultural or grazing purposes.

B. The judgment debtor or his successor in interest may redeem at any time within six months after the date of the sale except when the court has made the determinations as provided in subsection A.

C. If the redemption as provided in subsection A or B is not made, the senior creditor having a lien, legal or equitable, upon the premises sold, or any part thereof, subsequent to the judgment under which the sale was made, may redeem within five days after expiration of the applicable period provided in subsection A or B, and each subsequent creditor having a lien in succession, according to priority of liens, within five days after the time allowed the prior lienholder, respectively, may redeem by paying the amount for which the property was sold and all liens prior to his own held by the person from whom redemption is made, together with the eight per cent added to the amount as provided in section 12-1285.

§ 12-1283 Redemption upon foreclosure

A. In sales upon foreclosure of mortgages or other liens the same periods of redemption as provided in section 12-1282 shall be allowed.

B. If no redemption is made by the mortgagor or his successor in interest, creditors having liens upon the premises sold or any part thereof subsequent to the lien so foreclosed may redeem within the times and in the order and manner specified in section 12-1282.

§ 12-1284 Notice of redemption by subsequent lienholder

To entitle a subsequent lienholder to redeem he shall, within the applicable period of redemption as provided in section 12-1282, file with the county recorder of the county in which the sale is made a notice in writing stating that he intends to redeem and specifying his lien and the amount thereof and its order of priority, and shall deliver a copy thereof to the sheriff of the county.

§ 12-1285 Amounts payable upon redemption

A. In redeeming property the judgment debtor shall pay the amount of the purchase price with eight per cent added thereto, together with the amount of any assessments or taxes which the purchaser has lawfully paid thereon after purchase, and interest on such amount.

B. Each subsequent redemptioner shall pay the aggregate of such amounts plus the amount of the lien thereon of the ones who may have redeemed the property theretofore. If the purchaser is also a creditor having a prior lien to that of the redemptioner, other than the judgment lien, the redemptioner shall pay, in addition, the amount of such creditor's lien with interest. The payments may be made to the officer who made the sale.

§ 12-1286 Execution and delivery of deed by sheriff

A. At the expiration of all the applicable periods of redemption as provided in section 12-1282, and not sooner, upon receipt of the sheriff's original certificate of sale, the sheriff shall execute and deliver a deed to the property sold to the purchaser at the sale, or in case redemption is made by a redemptioner, to the last redemptioner redeeming the property.

B. Within thirty days after the date of execution of the deed, the sheriff shall execute to the purchaser or redemptioner a duplicate original sheriff's deed and record the original sheriff's deed in the office of the county recorder for the county in which the property is located. In every sheriff's deed in which the grantee, purchaser or redemptioner is subject to regulation pursuant to title 6, 10 or 29, or would be subject to regulation pursuant to title 6, 10 or 29 if doing business in this state, the grantee's, purchaser's or redemptioner's name and address and the state in which the grantee, purchaser or redemptioner is incorporated, organized, licensed, chartered or registered shall be set forth fully, together with the name of the country under which the grantee, purchaser or redemptioner is chartered or formed. The information provided by the redemptioner or purchaser is not subject to verification and the sheriff is not responsible for authenticity of the information. The validity of any deed shall not be affected by any failure to comply with the requirements set forth in this subsection.

§ 12-1287 Delivery and service of papers by redeeming creditor

A. A redeeming creditor shall deliver to the officer or person from whom he seeks to redeem and serve with his notice to the sheriff:

1. A copy of the docket of the judgment under which he claims the right to redeem, certified by the clerk of the court where the judgment is docketed, or if he redeems a mortgage or other lien, a copy of the record thereof, certified by the recorder.

2. A copy of any assignment necessary to establish his claim verified by the affidavit of himself or a subscribing witness thereto.

3. An affidavit showing the amount actually due on the lien.

B. Service of the papers specified in subsection A shall be made upon the party from whom the redemption is sought as service of summons is made in civil actions.

§ 12-1288 Right to rents and profits; accounting and action

A. The purchaser, from the time of the sale until redemption, and a creditor from the time of his redemption until another redemption, is entitled to receive from the tenant in possession the rents of the property sold or the value of the use and occupation thereof. When the rents or profits have been received by the purchaser or prior redemptioner, preceding redemption, the amount thereof shall be a credit upon the redemption money to be paid.

B. If the redemptioner or judgment debtor, before expiration of the time allowed for redemption, demands, in writing, of the purchaser or prior redemptioner a written and certified statement of the amounts of the rents and profits thus received, the period for redemption is extended five days after the sworn statement is given.

C. If the purchaser or prior redemptioner, for a period of one month after demand fails or refuses to give the statement as provided in subsection B, the redemptioner or debtor may bring an action to compel an accounting and disclosure of the rents and profits, and the right of redemption is extended until fifteen days from and after the final determination of the action.

§ 12-1289 Restraint of waste during redemption period; acts not constituting waste

A. Until expiration of the time allowed for redemption, the court may with or without notice, on application of the purchaser or the judgment creditor, restrain the commission of waste on the property.

B. It is not waste:

1. For the person in possession of the property at the time of sale or entitled to possession afterward, during the period allowed for redemption to continue to use it in the same manner in which it was previously used.

2. For the person in possession of the property, while he occupies the property to make necessary repairs on the buildings thereon and to use wood and timber on the property for such repairs or for fuel for domestic purposes.

Article 12 Replevin

§ 12-1301 Affidavit to obtain possession

If a plaintiff claims in his complaint the possession of specific personal property, he may at any time after complying with the provisions of chapter 14 of this title and before rendition of judgment file an affidavit showing:

1. That he is the owner of the property claimed, sufficiently describing it, or is lawfully entitled to its possession.

2. That the property is wrongfully detained by the defendant.

3. The actual value of the property and that it has not been seized under any process, execution, or attachment against the property of the plaintiff, or, if so seized, that it is by statute exempt from such seizure.

§ 12-1302 Order for taking property

After the provisions of chapter 14 of this title are complied with and upon filing of the affidavit prescribed in section 12-1301, the superior court judge or justice of the peace shall make an order requiring the sheriff, or if in a justice court the constable, to take the property specified in the affidavit from the defendant and deliver it to the plaintiff.

§ 12-1303 Bond; amount and conditions

The officer shall not take the property until plaintiff executes and delivers to him a bond payable to the defendant, in an amount not less than double the value of the property as stated in the affidavit, conditioned that plaintiff will prosecute the action to effect and without delay, and for the return of the property to defendant if return thereof is adjudged, and in default of such delivery that plaintiff will pay the assessed value of the property and all damages for its taking and detention, and costs in the action, including reasonable attorney's fees.

§ 12-1304 Execution of order for delivery to claimant; redelivery bond

The officer, after delivery to him of the bond provided in section 12-1303, shall take the property and deliver it to plaintiff unless the defendant, within two days after the taking, executes and delivers to the officer a bond payable to plaintiff in an amount not less than double the value of the property as stated in the affidavit of plaintiff, conditioned that defendant will deliver such property to plaintiff if delivery is adjudged, and in default of delivery will pay the assessed value of the property and all damage for injuries to the property and for its taking or detention, and costs in the action and reasonable attorney's fees.

§ 12-1305 Filing of bonds

The bonds taken by the officer relating to the claim and delivery of personal property shall be filed with the clerk within five days next after they are taken, and with a justice of the peace in three days.

§ 12-1306 Defect in bond; retaking of property

If it appears to the court at any time before trial that either of the bonds is not good and sufficient, it shall order the party to give a new bond with good and sufficient sureties within such time as the court directs. Upon failure of the party to comply with the order, the court shall order that the officer retake the property and deliver it to the other party, and the action shall then proceed as if such bond had not been filed.

§ 12-1307 Verdicts in actions to recover specific personal property

In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or if the defendant by his answer claims a return thereof, the jury, if its verdict is in favor of the plaintiff, or if its verdict is in favor of the defendant and it also finds that defendant is entitled to have the property returned to him, it shall determine the value of the property and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the taking or detention of such property.

§ 12-1308 Finding for defendant; judgment; election to take value or property

A. If the defendant alleges that he is the owner of the property, is entitled to its possession and demands its return, and if on the trial it is found that he is its owner and that he was at the time the action was brought entitled to its possession, then on the trial the value of the property replevied shall be found, together with any damage the defendant has suffered for the wrongful seizure of the property, and judgment shall be against the plaintiff claimant and the sureties on the replevin bond for the value of the property, the damages and costs of the action and reasonable attorney's fees. The judgment shall also be for the return of the property to the adverse party at a time and place specified.

B. The defendant shall elect whether he will take the property itself or the amount found as the value of the property. The election shall be made in order to permit the plaintiff a reasonable time before the time specified in the judgment for delivery of the property. The election may be made in open court, or by an instrument in writing filed in the action.

§ 12-1309 Finding for defendant; property not in possession of plaintiff; judgment

If at the time of trial the plaintiff is not in possession of the property, or it is not under his control, and the finding is for the defendant, then the alternative judgment shall not be given but only judgment for the value of the property, the damages suffered by its seizure, costs in the action and reasonable attorney's fees. The judgment shall be against the plaintiff and the sureties on his bond.

§ 12-1310 Finding for plaintiff; property in possession of defendant; election to take value or property

If judgment is against the defendant and at the time thereof he is in possession of the property by reason of the redelivery bond, the judgment shall be against the defendant and the sureties on his bond for the value of the property, the damages for its detention and costs, and for the return of the property to the plaintiff at a time and place therein named, and upon the same terms and conditions the plaintiff shall be given the same election as is given heretofore in this article to a prevailing defendant.

§ 12-1311 Failure to deliver property; election by prevailing party

If the party adjudged to return the property fails so to do at the time and place adjudged, unless by the election he is allowed to retain it, then the party in default shall be adjudged in contempt of the court and shall continue in contempt until he delivers the property as adjudged if the property is in his possession or under his control. The party entitled to the property may at his option abandon the property and collect the assessed value thereof.

§ 12-1312 Vesting of title to property

When the party elects to take the money judgment, the title, by reason of the election, shall at once vest in the other party to the extent of the interest, claim and title of the party electing to take the money judgment.

§ 12-1313 Exoneration and liability of officer on bonds

A. After execution of any bond taken by virtue of this article, the parties to the action shall be barred from any right of action against the officer for seizure and delivery of the property.

B. If the officer fails to take or return a bond as required by law, or if the bond taken is adjudged insufficient after it is taken and is not made sufficient, he and his sureties shall be liable to the party injured for all damages sustained by the injured party.

§ 12-1314 Execution issuable for delivery of property; procedure

A. An execution may issue for the delivery of personal property to the sheriff or any constable of the county where the property is located and shall require him to deliver possession of the property, sufficiently describing it, to the party entitled thereto.

B. The execution shall be governed by the rules governing execution in ordinary cases so far as they are applicable.

Article 13 Trial of Title to Personal Property Under Levy

§ 12-1331 Claim of property levied upon; bond

A. When a sheriff or other officer levies a writ of execution, attachment, replevin or similar writ upon personal property and such property or any part thereof is claimed by a person who is not a party to the writ, such person may present a written claim thereto, under oath, to the officer who made the levy, stating that the claim is made in good faith.

B. A person presenting a written claim as provided in subsection A shall also execute and deliver to the officer a bond to be approved by the officer, payable to the plaintiff in the writ, for an amount equal to double the value of the property so claimed, the value to be assessed by the officer.

§ 12-1332 Conditions of bond

The bond shall be conditioned that if the person making the claim fails to establish his right to the property, he will return it to the officer in as good condition as he received it and will pay the reasonable value of the use, hire, increase and profits thereof from the date of the bond, or, if he fails so to return the property and pay for its use, he will pay the plaintiff in the writ the value of the property with legal interest thereon from the date of the bond and will also pay all damages and costs that are awarded against him.

§ 12-1333 Delivery of property to claimant; return of claim and bond

A. The officer receiving the claim and bond shall deliver the property so claimed to the person claiming it.

B. If the writ under which the levy is made is issued by a justice of the peace or court of the county where the levy is made, the officer shall endorse on the writ that the claim has been made and bond given, stating by whom, and shall endorse on the bond the value of the property as assessed by him and forthwith return the claim and bond to the justice or court having jurisdiction to try the claim.

C. If the writ is issued by a justice of the peace or court of a county other than that in which the levy is made, the officer shall endorse on the bond the value of the property as assessed by him, and forthwith return the claim and bond, with a copy of the writ, to the justice or court of the county in which the levy is made having jurisdiction according to the value of the property as assessed by the officer.

§ 12-1334 Endorsement on writ and return

The officer taking the bond shall endorse on the original writ that the claim has been made and bond given, stating by whom, the names of the sureties and to what justice or court the bond has been returned, and he shall forthwith return the original writ to the justice or court from which it issued.

§ 12-1335 Jurisdiction of trial; docketing of action

A. When the assessed value of the property does not exceed two hundred dollars, the writ shall be returned to a justice of the peace for trial. When the assessed value is more than two hundred dollars the claim and bond shall be returned for trial to the superior court having jurisdiction of the claim.

B. When the claim and bond are returned, the clerk of the court or justice of the peace shall docket them in the name of the plaintiff in the writ as plaintiff, and the claimant of the property as defendant.

§ 12-1336 Direction of issue

Within twenty days after docketing the matter, the court shall direct that an issue be made up in writing between the parties and tried as in other cases. The issue shall consist of a brief statement of the authority and right by which plaintiff seeks to subject the property levied on to his execution and of the nature of the claim of defendant thereto.

§ 12-1337 Judgment by default

A. If plaintiff appears and defendant fails to appear or neglects or refuses to join issue within such time as the court prescribes, plaintiff shall be given judgment by default.

B. If defendant appears and plaintiff fails to appear or neglects or refuses to tender issues within such time as the court prescribes, defendant shall be given judgment by default.

§ 12-1338 Trial and burden of proof

A. The proceedings on the trial shall be as in other cases before such courts, as nearly as practicable.

B. If the property was taken from possession of the claimant, the burden of proof shall be on plaintiff. If it was taken from possession of defendant in the writ or any other person than claimant the burden of proof shall be on claimant.

§ 12-1339 Judgment; limitation on time for issuance of execution

A. If claimant fails to establish his right, judgment shall be given against him and his sureties for the value of the property, with legal interest thereon from the date of the bond and for ten per cent damages. When the value is greater than the amount claimed under the writ by virtue of which the property was levied upon, the damages shall be on the amount due under the writ.

B. On such judgment no execution shall issue for ten days.

§ 12-1340 Satisfaction of judgment by claimant

If within ten days from the giving of judgment against claimant, he returns the property in as good condition as he received it, and pays interest, damages and costs, such delivery and payment shall operate as satisfaction of the judgment.

§ 12-1341 Release of officer; other levies

A. A claim made to property under this article shall operate as a release of all damages by claimant against the officer who levied upon the property.

B. Proceedings for the trial of the right of property shall not prevent plaintiff in the writ from having a levy made upon other property of defendant in the writ.

Article 14 Purchaser Dwelling Actions

§ 12-1361 Definitions

In this article, unless the context otherwise requires:

1. "Association" means either of the following:

(a) The unit owners' association organized under section 33-1241.

(b) A nonprofit corporation or unincorporated association of owners created pursuant to a declaration to own and operate portions of a planned community and which has the power under the declaration to assess association members to pay the costs and expenses incurred in the performance of the association's obligations under the declaration.

2. "Community documents" means the declaration, bylaws, articles of incorporation, if any, and rules, if any.

3. "Construction codes" means the building, plumbing, electrical, fire, mechanical or other codes or ordinances, including the international residential code however denominated, as adopted, amended and enforced by the city, town or county in which the dwelling is located.

4. "Construction defect" means a material deficiency in the design, construction, manufacture, repair, alteration, remodeling or landscaping of a dwelling that is the result of one of the following:

(a) A violation of construction codes applicable to the construction of the dwelling.

(b) The use of defective materials, products, components or equipment in the design, construction, manufacture, repair, alteration, remodeling or landscaping of the dwelling.

(c) The failure to adhere to generally accepted workmanship standards in the community.

5. "Construction professional" means an architect, contractor, subcontractor, developer, builder, builder vendor, supplier, engineer or inspector performing or furnishing the design, supervision, inspection, construction or observation of the construction of any improvement to real property.

6. "Dwelling" means a single or multifamily unit designed for residential use and common areas and improvements that are owned or maintained by an association or by members of an association. A dwelling includes the systems, other components and improvements that are part of a single or multifamily unit at the time of construction.

7. "Dwelling action" means any action involving a construction defect brought by a purchaser against the seller of a dwelling arising out of or related to the design, construction, condition or sale of the dwelling.

8. "Material deficiency" means a deficiency that actually impairs the structural integrity, the functionality or the appearance of the dwelling at the time of the claim, or is reasonably likely to actually impair the structural integrity, the functionality or the appearance of the dwelling in the foreseeable future if not repaired or replaced.

9. "Purchaser" means any person or entity who files a dwelling action.

10. "Seller" means any person, firm, partnership, corporation, association or other organization that is engaged in the business of designing, constructing or selling dwellings, including construction professionals. Seller does not include a real estate broker or real estate salesperson as defined in section 32-2101 who provides services in connection with the resale of a dwelling following its initial sale.

§ 12-1362 Dwelling action; notice of intent to repair or replace; jurisdictional prerequisite; insurance; bifurcated trial; legislative intent

A. Except with respect to claims for alleged construction defects involving an immediate threat to the life or safety of persons occupying or visiting the dwelling, a purchaser must first comply with this article before filing a dwelling action.

B. A seller and the seller's construction professional who receive a written notice of claim pursuant to section 12-1363 have a right pursuant to section 12-1363 to repair or replace any alleged construction defects after sending or delivering to the purchaser a written notice of intent to repair or replace the alleged construction defects. The seller and the seller's construction professional do not need to repair or replace all of the alleged construction defects. A purchaser may not file a dwelling action until the seller and the seller's construction professional have completed all intended repairs and replacements of the alleged construction defects.

C. If a seller or a seller's construction professional presents a notice received pursuant to section 12-1363 to an insurer that has issued an insurance policy to the seller or the seller's construction professional that covers the seller's or the seller's construction professional's liability arising out of a construction defect or the design, construction or sale of the property that is the subject of the notice, the insurer must treat the notice as a notice of a claim subject to the terms and conditions of the policy of insurance. An insurer must work cooperatively and in good faith with the insured seller or the seller's construction professional within the time frames specified in this article to effectuate the purpose of this article. This subsection does not affect the coverage available under the policy of insurance or create a cause of action against an insurer whose actions were reasonable under the circumstances, notwithstanding its inability to comply with the time frames specified in section 12-1363.

D. Subject to Arizona rules of court, the identified construction professionals shall be joined as third-party defendants, if feasible. Subject to Arizona rules of court, for each construction defect found to exist, the trier of fact in any dwelling action filed pursuant to this article shall first determine if a construction defect exists and the amount of damages caused by the defect and identify each seller or construction professional whose conduct, whether by action or omission, may have caused, in whole or in part, any construction defect. The purchaser has the burden of proof to demonstrate the existence of a construction defect and the amount of the damages caused by the construction defect. The trier of fact shall thereafter determine the relative degree of fault of any defendant or third-party defendant. The trier of fact shall allocate the pro rata share of liability based on relative degree of fault. The seller has the burden to prove the pro rata share of liability of any third-party defendant. The determination of whether a construction defect exists, the amount of damages caused by the construction defect and who may have caused, in whole or in part, the construction defect shall be bifurcated from and take place in a separate phase of the trial or alternative dispute resolution process from the determination of the relative degree of fault of any defendant or third-party defendant, unless the court finds that bifurcation is not appropriate.

E. The legislature finds and determines that given the complexity and multiparty nature of dwelling actions, it is important to provide a streamlined process for the resolution of construction defect claims and indemnification claims between the seller and the construction professionals that is efficient, economical and convenient for the parties involved. The legislature further finds and determines that for the majority of dwelling actions, bifurcation of the issues of the existence of a defect and causation from the issue of apportionment of fault is more efficient, fair and convenient for the parties. It is the legislature's intent that the bifurcation process prescribed in subsection D of this section does not alter the seller's liability under the seller's implied warranty to the purchaser. It is the legislature's intent that the bifurcation process prescribed in subsection D of this section be used and that the issues of existence of a construction defect, damages, causation and apportionment of fault be tried in one trial unless the court finds that the circumstances of the particular case at issue render bifurcation inappropriate.

§ 12-1363 Notice and right to repair or replace; tolling of time limits; admissible evidence; definition

A. Before filing a dwelling action, the purchaser shall give written notice by certified mail, return receipt requested, to the seller specifying in reasonable detail the basis of the dwelling action. A seller who receives notice under this subsection shall promptly forward a copy of the notice to the last known address of each construction professional who the seller reasonably believes is responsible for an alleged defect that is specified in the notice. The seller's notice to each construction professional may be delivered by electronic means.

B. After receipt of the notice described in subsection A of this section, the seller and the seller's construction professional may inspect the dwelling to determine the nature and cause of the alleged construction defects and the nature and extent of any repairs or replacements necessary to remedy the alleged construction defects. The purchaser shall ensure that the dwelling is made available for inspection not later than ten days after the purchaser receives the seller's and the seller's construction professional's request for an inspection. The seller and the seller's construction professional shall provide reasonable notice to the purchaser before conducting the inspection. The inspection shall be conducted at a reasonable time. The seller and the seller's construction professional may use reasonable measures, including testing, to determine the nature and cause of the alleged construction defects and the nature and extent of any repairs or replacements necessary to remedy the alleged construction defects. If the seller or the seller's construction professional conduct testing pursuant to this subsection, the seller or the seller's construction professional shall restore the dwelling to its condition before the testing.

C. Within sixty days after receipt of the notice described in subsection A of this section, the seller shall send to the purchaser a good faith written response to the purchaser's notice by certified mail, return receipt requested. The response may include the seller's and the seller's construction professional's notice of intent to repair or replace any alleged construction defects, to have the alleged construction defects repaired or replaced at the seller's or seller's construction professional's expense or to provide monetary compensation to the purchaser. The written notice of intent to repair or replace shall describe in reasonable detail all repairs or replacements that the seller and the seller's construction professional intend to make or provide to the dwelling and a reasonable estimate of the date by which the repairs or replacements will be made. This subsection does not prohibit the seller from offering monetary compensation or other consideration instead of or in addition to a repair or replacement. The purchaser may accept or reject an offer of monetary compensation or other consideration, other than repair or replacement and, if rejected, may proceed with a dwelling action on completion of any repairs or replacements the seller and the seller's construction professional intend to make or provide. The parties may negotiate for a release if an offer involving monetary compensation or other consideration is accepted.

D. If the seller does not provide a written response to the purchaser's notice within sixty days, the purchaser may file a dwelling action.

E. If the response provided pursuant to subsection C of this section includes a notice of intent to repair or replace the alleged construction defects, the purchaser shall allow the seller and the seller's construction professional a reasonable opportunity to repair or replace the alleged construction defects or cause the alleged construction defects to be repaired or replaced pursuant to the following:

1. The purchaser and the seller or the seller's construction professional shall coordinate repairs or replacements within thirty days after the seller's notice of intent to repair or replace was sent pursuant to subsection C of this section. If requested by the purchaser, repair or replacement of alleged construction defects undertaken by the seller shall be performed by a construction professional selected by the seller and consented to by the purchaser, whose consent shall not be unreasonably withheld, that was not involved in the construction or design of the dwelling. A contractor or subcontractor that was not involved in the construction or design of the dwelling and that performs any repair or replacement of the alleged construction defect pursuant to this section is liable only to the seller or purchaser who contracted for the contractor's or subcontractor's services for the contractor's or subcontractor's scope of work and that contractor or subcontractor may be named in an amended notice pursuant to subsection I of this section or in the corresponding dwelling action.

2. Repairs or replacements shall begin as agreed by the purchaser and the seller or the seller's construction professional, with reasonable efforts to begin repairs or replacements within thirty-five days after the seller's notice of intent to repair or replace was sent pursuant to subsection C of this section. If a permit is required to perform the repair or replacement, reasonable efforts shall be made to begin repairs or replacements within ten days after receipt of the permit or thirty-five days after the seller's notice of intent to repair or replace was sent pursuant to subsection C of this section, whichever is later.

3. All repairs or replacements shall be completed using reasonable care under the circumstances and within a commercially reasonable time frame considering the nature of the repair or replacement, any access issues or unforeseen events that are not caused by the seller or the seller's construction professional.

4. The purchaser shall provide reasonable access for the repairs or replacements.

5. The seller is not entitled to a release or waiver solely in exchange for any repair or replacement made pursuant to this subsection, except that the purchaser and seller may negotiate a release or waiver in exchange for monetary compensation or other consideration.

6. At the conclusion of any repairs or replacements, the purchaser may commence a dwelling action or, if the contract for the sale of the dwelling or the community documents contain a commercially reasonable alternative dispute resolution procedure that complies with section 12-1366, subsection C, may initiate the dispute resolution process including any claim for inadequate repair or replacement.

F. During the notice and repair or replacement process, and for thirty days after substantial completion of the repair or replacement, the statute of limitations and statute of repose, including section 12-552, applicable to the purchaser, including any construction professional involved in the construction or design, are tolled as to the seller and the seller's construction professional who were involved in the construction or design of the dwelling for all alleged construction defects described in reasonable detail in the written notice sent to the seller pursuant to subsection A of this section.

G. The statute of limitations and statute of repose, including section 12-552, that apply to the seller's claim for indemnity or contribution against any construction professional is tolled from the date the seller receives the notice required by this section until nine months after the purchaser's service of the civil complaint or arbitration demand on the seller.

H. All parties' conduct during the repair or replacement process prescribed in subsections B, C, D and E of this section may be introduced in any subsequent dwelling action. Any repair or replacement efforts undertaken by the seller or the seller's construction professional are not considered settlement communications or offers of settlement and are admissible in evidence.

I. A purchaser may amend the notice provided pursuant to subsection A of this section to include alleged construction defects identified in good faith after submission of the original notice. The seller and the seller's construction professional shall have a reasonable period of time to conduct an inspection, if requested, and thereafter the parties shall comply with the requirements of subsections B, C, D and E of this section for the additional alleged construction defects identified in reasonable detail in the notice.

J. Subject to Arizona rules of court, during the pendency of a dwelling action the purchaser may supplement the list of alleged construction defects to include additional alleged construction defects identified in good faith after filing of the original dwelling action that have been identified in reasonable detail as required by this section. The court shall provide the seller and the seller's construction professional a reasonable amount of time to inspect the dwelling to determine the nature and cause of the additional alleged construction defects and the nature and extent of any repairs or replacements necessary to remedy the additional alleged construction defects and, on request of the seller or the seller's construction professional, sufficient time to repair or replace the additional alleged construction defects. The parties shall comply with the requirements of subsections B, C, D and E of this section for the additional alleged construction defects identified in reasonable detail in the notice.

K. The service of an amended notice identifying in reasonable detail the alleged construction defects during the pendency of a dwelling action shall relate back to the original notice of alleged construction defects for the purpose of tolling applicable statutes of limitations and statutes of repose, including section 12-552.

L. By written agreement of the seller and purchaser, the time periods provided in this section may be extended.

M. For the sale of a dwelling that occurs within the statutory period set forth in section 12-552, the escrow agent, as defined in section 6-801, shall provide notice to the purchaser of the provisions of this section and sections 12-1361 and 12-1362. This subsection does not create a fiduciary duty or provide any person or entity with a private right or cause of action or administrative action.

N. A purchaser who files a contested dwelling action under this article must file an affidavit with the purchaser's complaint, under penalty of perjury, that the purchaser has read the entire complaint, agrees with all of the allegations and facts contained in the complaint and, unless authorized by statute or rule, is not receiving and has not been promised anything of value in exchange for filing the dwelling action.

O. If the seller does not comply with the requirements of this section and the failure is not due to any fault of the purchaser or as a result of an unforeseen condition, including an unforeseen weather condition or government delay, the purchaser may commence a dwelling action.

P. If the purchaser fails to comply with the requirements of this section before bringing a dwelling action, the dwelling action shall be dismissed. If the dwelling action is dismissed after the statute of limitations or statute of repose, including section 12-552, applicable to the purchaser, any subsequent dwelling action brought by the purchaser is time barred as to the seller and the seller's construction professional involved in the construction or design of the dwelling.

Q. For the purposes of this section, "reasonable detail" includes all of the following:

1. An itemized list that describes each alleged construction defect with sufficient detail to allow the seller or seller's construction professional to identify the alleged construction defect.

2. The location that each alleged construction defect has been observed by the purchaser in each dwelling that is the subject of the notice.

3. The impairment to the dwelling that has occurred as a result of each of the alleged construction defects or is reasonably likely to occur if the alleged construction defects are not repaired or replaced.

4. The street address for each dwelling that is the subject of the notice.

§ 12-1364 Dwelling actions; contested issues; attorney fees and taxable costs; expert witness fees; definitions

A. In a contested dwelling action, the court or tribunal may award the prevailing party with respect to a contested issue reasonable attorney fees and taxable costs. A purchaser is deemed the prevailing party with respect to a contested issue if the relief obtained by the purchaser for that contested issue, exclusive of any fees and taxable costs, is more favorable than the repairs or replacements and offers made by the seller before the purchaser filed a dwelling action pursuant to section 12-1363. The seller is deemed the prevailing party with respect to a contested issue if the relief obtained by the purchaser for that contested issue, exclusive of any fees and taxable costs, is not more favorable than the repairs or replacements and offers made by the seller before the purchaser filed a dwelling action pursuant to section 12-1363.

B. An award of attorney fees pursuant to this section is limited to the amount of fees actually and reasonably incurred with respect to the contested issue for which the party has been deemed the prevailing party. In determining whether the fees actually incurred with respect to a contested issue are reasonable, the court or tribunal shall consider all of the following:

1. The repairs, replacements or offers made by the seller, if any, before the purchaser filed the dwelling action pursuant to section 12-1363.

2. The purchaser's response to the seller's repairs, replacements or offers made or proposed, if any, before the purchaser filed the dwelling action pursuant to section 12-1363.

3. The relation between the fees incurred over the duration of the dwelling action and the value of the relief obtained with respect to the contested issue.

4. The amount of fees incurred in responding to any unsuccessful motions, claims and defenses during the duration of the dwelling action.

C. This section does not alter, prohibit or restrict present or future contracts that may provide for attorney fees or expert witness fees.

D. Notwithstanding any other law, in a contested dwelling action that involves a single purchaser, the court or tribunal may award the prevailing party with respect to the contested issue reasonable expert witness fees. The determination of the prevailing party and the reasonableness of the expert witness fees shall be made using the same criteria used in determining the award of attorney fees pursuant to subsections A and B of this section. This subsection does not apply to a dwelling action that involves more than one purchaser or an action that is consolidated with any other dwelling action. The expert witness fees prescribed in this subsection are in addition to the taxable costs authorized by section 12-332.

E. For the purposes of this section:

1. "Contested issue" means an issue that relates to an alleged construction defect and that is contested by a purchaser following the conclusion of the repair and replacement procedures prescribed in section 12-1363.

2. "Purchaser" means any person or entity, including the current owner of the dwelling, who files a dwelling action during the time period described in section 12-552.

§ 12-1365 Notification; right to file a complaint with the registrar of contractors

A. A written contract for the sale of a newly constructed dwelling between a buyer of a newly constructed dwelling and the seller responsible for the original construction of the dwelling shall contain, or provide separate notice of, the following provision:

Under Arizona Revised Statutes section 32-1155, a buyer of a dwelling has the right to file a written complaint against the homebuilder with the Arizona registrar of contractors within two years after the close of escrow or actual occupancy, whichever occurs first, for the commission of an act in violation of Arizona Revised Statutes section 32-1154, subsection A.

B. The notice required in subsection A of this section shall be prominently displayed and appear in at least ten point bold type.

C. The buyer of the dwelling is not deemed to have received the notice required pursuant to subsection A of this section unless the buyer initials the notice provision.

§ 12-1366 Applicability; claims and actions

A. This article does not apply:

1. To personal injury claims.

2. To death claims.

3. To claims for damage to property other than a dwelling.

4. To common law fraud claims.

5. To proceedings brought pursuant to title 32, chapter 10.

6. To claims solely seeking recovery of monies expended for repairs to alleged defects that have been repaired by the purchaser.

B. A dwelling action brought by an association is also subject to title 33, chapter 18.

C. After the repair or replacement process has been completed as prescribed by section 12-1363, this article does not affect either party's ability to enforce any commercially reasonable alternative dispute resolution procedures contained in the contract for the sale of the dwelling or an association's community documents. The seller's election to enforce any commercially reasonable alternative dispute resolution procedures contained in the contract for the sale of the dwelling or an association's community documents does not negate, abridge or otherwise reduce the seller's right to repair or replace any alleged construction defects pursuant to section 12-1363. If the contract for the sale of a dwelling contains the procedures, the procedures shall conspicuously appear in the contract in bold and capital letters and a disclosure statement in at least twelve-point font, bold and capital letters shall appear on the face of the contract and shall describe the location of the alternative dispute resolution procedures within the contract.

Chapter 9 Special Actions and Proceedings to Enforce Claims or Judgments

Article 1 Arbitration

§ 12-1501 Validity of arbitration agreement

A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.

§ 12-1502 Proceedings to compel or stay arbitration

A. On application of a party showing an agreement described in section 12-1501, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party. Otherwise, the application shall be denied.

B. On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.

C. If an issue referable to arbitration under the alleged agreement is involved in an action or proceeding pending in a court having jurisdiction to hear applications under subsection A of this section, the application shall be made therein. Otherwise and subject to section 12-2101, the application may be made in any court of competent jurisdiction.

D. Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.

E. An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

§ 12-1503 Appointment of arbitrators by court

If the arbitration agreement provides a method of appointment of arbitrators, this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails or is unable to act and his successor has not been duly appointed, the court on application of a party shall appoint one or more arbitrators. An arbitrator so appointed has all the powers of one specifically named in the agreement.

§ 12-1504 Majority action by arbitrators

The powers of the arbitrators may be exercised by a majority unless otherwise provided by the agreement or by this article.

§ 12-1505 Hearing

Unless otherwise provided by the agreement:

1. The arbitrators shall appoint a time and place for the hearing and cause notification to the parties to be served personally or by registered mail not less than five days before the hearing. Appearance at the hearing waives such notice. The arbitrators may adjourn the hearing from time to time as necessary and, on request of a party and for good cause, or upon their own motion, may postpone the hearing to a time not later than the date fixed by the agreement for making the award unless the parties consent to a later date. The arbitrators may hear and determine the controversy upon the evidence produced notwithstanding the failure of a party duly notified to appear. The court on application may direct the arbitrators to proceed promptly with the hearing and determination of the controversy.

2. The parties are entitled to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing.

3. The hearing shall be conducted by all the arbitrators but a majority may determine any question and render a final award. If, during the course of the hearing, an arbitrator for any reason ceases to act, the remaining arbitrator or arbitrators appointed to act as neutrals may continue with the hearing and determination of the controversy.

§ 12-1506 Representation by attorney

A party has the right to be represented by an attorney at any proceeding or hearing under this article. A waiver thereof prior to the proceeding or hearing is ineffective.

§ 12-1507 Witnesses; subpoenas; depositions

A. The arbitrators may cause to be issued subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence, and shall have the power to administer oaths. Subpoenas so issued shall be served, and, upon application to the court by a party or the arbitrators, enforced, in the manner provided by law for the service and enforcement of subpoenas in a civil action.

B. On application of a party and for use as evidence, the arbitrators may permit a deposition to be taken, in the manner and upon the terms designated by the arbitrators, of a witness who cannot be subpoenaed or is unable to attend the hearing.

C. All provisions of law compelling a person under subpoena to testify are applicable.

D. Fees for attendance as a witness shall be the same as for a witness in the superior courts of the state of Arizona.

§ 12-1508 Award

A. The award shall be in writing and signed by arbitrators joining in the award. The arbitrators shall deliver a copy to each party personally or by registered mail, or as provided in the agreement.

B. An award shall be made within the time fixed therefor by the agreement or, if not so fixed, within such time as the court orders on application of a party. The parties may extend the time in writing either before or after the expiration thereof. A party waives the objection that an award was not made within the time required unless he notifies the arbitrators of his objection prior to the delivery of the award to him.

§ 12-1509 Change of award by arbitrators

On application of a party or, if an application to the court is pending under sections 12-1511, 12-1512, or 12-1513, on submission to the arbitrators by the court under such conditions as the court may order, the arbitrators may modify or correct the award upon the grounds stated in paragraphs 1 and 3 of subsection A of section 12-1513, or for the purpose of clarifying the award. The application shall be made within twenty days after delivery of the award to the applicant. Written notice thereof shall be given forthwith to the opposing party, stating he must serve his objections thereto, if any, within ten days from the notice. The award so modified or corrected is subject to the provisions of sections 12-1511, 12-1512 and 12-1513.

§ 12-1510 Fees and expenses of arbitration

Unless otherwise provided in the agreement to arbitrate, the arbitrators' expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.

§ 12-1511 Confirmation of an award

A party seeking confirmation of an award shall file and serve an application therefor in the same manner in which complaints are filed and served in civil actions. Upon the expiration of twenty days from service of the application, which shall be made upon the party against whom the award has been made, the court shall enter judgment upon the award unless opposition is made in accordance with section 12-1512.

§ 12-1512 Opposition to an award

A. Upon filing of a pleading in opposition to an award, and upon an adequate showing in support thereof, the court shall decline to confirm and award and enter judgment thereon where:

1. The award was procured by corruption, fraud or other undue means;

2. There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;

3. The arbitrators exceeded their powers;

4. The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section 12-1505, as to prejudice substantially the rights of a party; or

5. There was no arbitration agreement and the issue was not adversely determined in proceedings under section 12-1502 and the adverse party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.

B. In declining to confirm an award on grounds other than stated in paragraph 5 of subsection A the court may order a rehearing before new arbitrators chosen as provided in the agreement, or in the absence thereof, by the court in accordance with section 12-1503, or if the court declines to confirm the award on grounds set forth in paragraphs 3 and 4 of subsection A the court may order a rehearing before the arbitrators who made the award or their successors appointed in accordance with section 12-1503. The time within which the agreement requires the award to be made is applicable to the rehearing and commences from the date of the order.

§ 12-1513 Modification or correction of award

A. Upon application made within ninety days after delivery of a copy of the award to the applicant, if judgment has not been entered thereon, the court shall modify or correct the award where:

1. There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;

2. The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or

3. The award is imperfect in a matter of form, not affecting the merits of the controversy.

B. If the application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as made.

C. An application to modify or correct an award may be joined in the alternative with an application to vacate the award.

D. After judgment, the award shall be subject to the powers of the court in the same manner as any other judgment which may be subject to review under rule 60(c) of the rules of civil procedure.

§ 12-1514 Judgment or decree on award

Upon the granting of an order confirming, modifying or correcting an award, judgment or decree shall be entered in confirmity therewith and be enforced as any other judgment or decree. Costs of the application and of the proceedings subsequent thereto, and disbursements may be awarded by the court.

§ 12-1515 Applications to court

Except as otherwise provided, an application to the court under this article shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in an action.

§ 12-1516 Court; jurisdiction and venue

The term "court", as used in this article, means the superior courts of the state of Arizona, and venue of the appropriate superior court shall be determined as in any other civil action. The initial application having been made to a court of appropriate venue, all subsequent applications shall be made to the same court unless that court otherwise directs.

§ 12-1517 Limited effect of article

This article shall have no application to arbitration agreements between employers and employees or their respective representatives.

§ 12-1518 State and political subdivisions; use of arbitration

A. In the discretion of any state agency, board or commission or any political subdivision of this state, the services of the American arbitration association, or any other similar body, may be used as provided by this article. Any agreement to make use of arbitration shall be made either at the time of entering into a contract or by written mutual agreement at a subsequent time prior to the filing of any civil action.

B. Notwithstanding subsection A of this section, a state agency, board or commission shall include an agreement to make use of arbitration in all contracts which are subject to mandatory arbitration pursuant to rules adopted under section 12-133.

C. Notwithstanding subsection A or B of this section, a state agency, board or commission shall include an agreement to make use of arbitration as provided in this article in public works contracts if the amount in controversy is less than one hundred thousand dollars.

Article 2 Attachment

§ 12-1521 Attachment of property of defendant

A plaintiff, after complying with the provisions of chapter 14 of this title, may in the following cases have the property of the defendant attached as security for satisfaction of any judgment which may be recovered, unless the defendant gives security to pay such judgment:

1. In an action upon a contract, express or implied, for payment of money which is not fully secured by real or personal property, or, if originally so secured, the value of such security has, without any act of the plaintiff or the person to whom the security was given, substantially diminished below the balance owed.

2. When an action is pending for damages and the defendant is about to dispose of or remove his property beyond the jurisdiction of the court in which the action is pending.

3. In an action for damages or upon contract, express or implied, against a defendant not residing in this state or a foreign corporation doing business in this state.

4. In an action upon a judgment of any state.

§ 12-1522 Affidavit for issuance of writ of attachment

The clerk or justice of the peace, after complying with the provisions of chapter 14 of this title, shall issue the writ of attachment upon receiving an affidavit by or on behalf of plaintiff, showing any one or more of the requirements for a writ of attachment as set forth in section 12-1521.

§ 12-1523 Issuance of writ for debt or demand not due; affidavit; trial; judgment

A. After entry of an order pursuant to the requirements of chapter 14 of this title, a writ of attachment may issue although the plaintiff's debt or demand is not due, but final judgment shall not be rendered against the defendant until the debt or demand is due.

B. To obtain an attachment for a debt or demand not due, the plaintiff may file with the clerk or justice of the peace a complaint and shall file an affidavit showing:

1. That the defendant is indebted to the plaintiff upon a contract, express or implied, for the direct payment of money, stating the amount, and that the debt is not due.

2. That such contract was made or is payable in this state.

3. That payment of the debt has not been secured by a mortgage, pledge or lien.

4. The character of the debt sued for.

5. That there are no legal setoffs or counterclaims against the debt.

6. That the defendant is about to remove permanently from the state and has refused to secure the debt, or that he has secreted his property for the purpose of defrauding his creditors, or that he is about to remove his property from the state without leaving sufficient property remaining for payment of his debts, or that he has disposed of his property wholly or in part with intent to defraud his creditors, or that he is about to dispose of his property with intent to defraud his creditors.

C. The affidavit shall further state that the attachment is not sued out for the purpose of injuring or harassing the defendant and that the plaintiff will probably lose his debt unless the attachment is issued.

D. The facts set forth in the affidavit filed under this section may be denied by the defendant, and the issue so formed shall be tried as other questions of fact.

E. If judgment is for the defendant, the court shall fix and include in the judgment a reasonable attorney's fee and shall enter judgment therefor against the sureties upon the attachment bond.

§ 12-1524 Attachment bond of plaintiff

Before issuance of a writ of attachment, plaintiff shall execute and file a bond payable to defendant in an amount not less than the amount for which action is brought, to be approved by the officer issuing the writ, conditioned that plaintiff will prosecute his action to effect and will pay all damages and costs as may be sustained by defendant by reason of the wrongful obtaining of the attachment.

§ 12-1525 Quashing of writ; criteria of validity of affidavit and bond

A. Every attachment issued without the affidavit and bond shall be quashed on motion of defendant.

B. The affidavit and bond shall not be void for want of form if they contain all essential matters.

§ 12-1526 Issuance of writ; contents

After compliance with the provisions of chapter 14 of this title and upon the execution and filing of the affidavit and bond, the superior court judge or justice of the peace shall immediately issue a writ of attachment directed to the sheriff or any constable of any county where property of defendant is supposed to be, commanding him to attach so much of the property as will be sufficient to satisfy the demand of plaintiff and the probable costs of the action.

§ 12-1528 Issuance of writ to several counties; form of writ; delivery for service

A. Several writs of attachment may, at the option of plaintiff, be issued at the same time or in succession and sent to different counties until sufficient property is attached to satisfy the writ.

B. The writ may be in the following form:

"The State of Arizona.

"To the sheriff or any constable of ___________________ county, greeting:

"We command that you attach forthwith so much property of C. D., if to be found in your county, as is of value sufficient to make the sum of _____________ dollars, and the probable costs of the action, to satisfy the demand of A. B., and that you keep and secure in your hands the property so attached, unless replevied, so that such property may be liable to further proceedings thereon, to be had before the court, and that you make return of this writ showing how you have executed it."

C. The writ shall be dated and attested as other writs, and may be delivered by the issuing officer to the sheriff or a constable, or he may deliver it to the plaintiff for that purpose.

§ 12-1529 Execution of writ; indemnity bond for attaching officer

A. The officer receiving the writ shall immediately execute it by levying upon so much property of defendant subject to levy under the writ and found within his county as is sufficient to satisfy the writ.

B. The officer shall levy the writ at his own risk, but he may require the plaintiff in attachment to execute and deliver to him a bond of indemnity to secure him if it should afterward appear that the property levied upon does not belong to defendant.

§ 12-1530 Levy of writ; attachment of real or personal property

A. The writ of attachment shall be levied in the same manner as a writ of execution.

B. When real property is attached the officer shall also serve a copy of the writ upon the defendant whose property is attached as a summons is served in a civil action, and make return thereof. If the officer is unable to serve the writ upon defendant, he shall post the writ in a conspicuous place upon the property and so make his return.

C. When personal property is attached the property shall remain in the custody of the officer until final judgment, unless taken from his custody as provided by law.

D. In the execution of a writ, the officer may enter on the lands, and into the residence or other building owned, occupied or controlled by the defendant.

§ 12-1531 Return of writ; duties of officer; further return

A. An officer executing a writ of attachment shall return the writ with his action endorsed thereon or attached thereto and signed by him, to the court from which it issued within thirty days after date of the levy.

B. The return shall describe the property attached with sufficient certainty to identify it and shall state when it was attached and whether any personal property attached still remains in his custody, and if not, the disposition made of the property.

C. When personal property has been replevied the officer shall deliver the replevin bond to the clerk or justice to be filed in the action.

D. When the property levied on is claimed, replevied or sold after the return, the officer shall immediately make a further return to the clerk or justice of the peace showing the disposition of the property.

§ 12-1532 Levy of attachment as lien on property; satisfaction of lien

A. The levy of the writ of attachment upon any property of defendant subject thereto is a lien from the date of the levy on the real property and on such personal property as remains in the custody of the attaching officer and on the proceeds of such personal property as is sold.

B. If plaintiff is given judgment, the court shall in the judgment order the proceeds of the personal property, if sold, to be applied to satisfaction of the judgment, and order the sale of the personal property remaining in the custody of the officer and of the real property levied on to satisfy the judgment, and the clerk of the court or justice of the peace shall issue special execution therefor.

§ 12-1533 Attachment of perishable property; sale; procedure

A. When personal property which has been attached is not claimed or replevied, the court or justice of the peace out of whose court the writ was issued may order it to be sold, when it appears that the property is in danger of serious and immediate waste or decay, or that keeping it until trial will result in such expense or deterioration in value as greatly to lessen the amount likely to be realized therefrom.

B. In ascertaining whether the property is in danger of serious and immediate waste or decay or that keeping of the property until trial will result in such expense or deterioration in value as greatly to lessen the amount likely to be realized therefrom, the court or justice of the peace may require or dispense with notice to the parties and may act upon such information, by affidavit, certificate of the attaching officer or other proof, as appears sufficient to protect the interest of the parties.

C. The sale shall be conducted in the same manner as sales of personal property under execution, except as to time of advertisement, which may be fixed by the court or justice of the peace for a shorter period.

§ 12-1534 Disposition of proceeds of sale of perishable property; report of sale

The proceeds of the sale as provided in section 12-1533 shall, within five days after the sale, be paid by the officer making the sale to the clerk of the court or justice of the peace, accompanied by a statement in writing and signed by such officer, to be filed in the action, stating the time and place of sale, the name of the purchaser and the amount received with an itemized account of the expense of sale.

§ 12-1535 Preservation of personal property under attachment

If personal property in custody of an officer under a writ of attachment is not replevied, claimed or sold, the court or justice of the peace may make such order for its preservation or use as appears to be to the interest of the parties.

§ 12-1536 Replevin of attached property by defendant; bond

At any time before judgment, if the property is not previously claimed or sold, defendant may replevy the property or any part thereof by giving bond to be approved by the officer who levied the writ, payable to plaintiff in double the amount of plaintiff's debt, or, at defendant's option, for the value of the property replevied as estimated by such officer, conditioned that defendant will satisfy the judgment which may be rendered in the action, or will pay the estimated value of the property with lawful interest thereon from the date of the bond.

§ 12-1537 Restoration of property or exoneration of bond; levy on exempt property

A. If the attachment is vacated or if the judgment is for defendant, the court shall order the property restored to defendant or exonerate the claim or replevin bond.

B. When any property claimed to be exempt is levied upon, defendant may, any time after such levy, apply to the court for vacation of such levy. If it appears to the court that the property so levied upon was exempt, the court shall order the levy vacated and the property returned to defendant.

§ 12-1538 Judgment where personal property replevied

When personal property under attachment has been replevied, the judgment shall also be against defendant and the sureties on his replevin bond for the amount of the judgment, interest and costs, or for the value of the property replevied and interest according to the terms of the bond.

§ 12-1539 Veterans disability benefits; exemption from seizure

A. Notwithstanding section 12-1521, federal disability benefits awarded to veterans for service-connected disabilities pursuant to 38 United States Code chapter 11:

1. Are exempt from the claim of creditors.

2. Are not subject to attachment, levy or seizure under any legal or equitable process, as provided by federal law.

3. May not be awarded to any other person.

B. This section does not apply to that portion of service-connected disability benefits that is subject to child and spousal support enforcement under 42 United States Code section 659(h)(1)(A)(ii)(V).

Article 3 Execution of Judgments

§ 12-1551 Issuance of writ of execution; limitation; renewal; death of judgment debtor; applicability

A. The party in whose favor a judgment is given, at any time within ten years after entry of the judgment and within ten years after any renewal of the judgment either by affidavit or by an action brought on it, may have a writ of execution or other process issued for its enforcement.

B. An execution or other process shall not be issued on a judgment after the expiration of ten years from the date of its entry unless the judgment is renewed by affidavit or process pursuant to section 12-1612 or an action is brought on it within ten years after the date of the entry of the judgment or of its renewal.

C. The court shall not issue a writ of execution after the death of the judgment debtor unless it is for the recovery of real or personal property or enforcement of a lien.

D. This section applies to:

1. All judgments that were entered on or after August 3, 2013.

2. All judgments that were entered on or before August 2, 2013 and that were renewed on or before August 2, 2018, except that a writ of execution or other process may not be issued for a judgment entered on or before August 2, 2013 that was not renewed on or before August 2, 2018.

E. This section does not apply to:

1. Criminal restitution orders entered pursuant to section 13-805.

2. Written judgments and orders for child support and spousal maintenance and to associated costs and attorney fees.

3. Civil judgments obtained by this state that are either of the following:

(a) Entered on or after September 13, 2013.

(b) Entered before September 13, 2013 and that were current and collectable under the laws applicable on September 13, 2013.

4. Judgments directing the sale of property pursuant to title 42, chapter 18, article 6.

§ 12-1552 Types of executions; form

A. Executions are either general or special.

1. A general execution is one which commands the officer to whom it is addressed to make the amount of the judgment out of property of the judgment debtor without specifying the particular property.

2. A special execution is one which commands the officer to whom it is addressed to sell certain specific property, or to deliver certain specific real or personal property to the party adjudged to be entitled thereto.

B. All executions shall be issued in the name of the state, signed by the clerk and sealed with the seal of the court, directed to the sheriff or other officer of the county where service is to be made, and shall refer to the judgment, the court where entered and the date of entry.

§ 12-1553 General execution

A general execution shall state the amount of the judgment and costs and the amount due thereon, and shall require the officer:

1. If the execution is against the property of the judgment debtor, to satisfy the judgment, with interest, out of the personal property of the debtor, and if sufficient personal property cannot be found, then out of his real property.

2. If the judgment is a lien upon real property, then to satisfy the judgment out of the real property belonging to the judgment debtor on the day when the judgment became a lien or at any time thereafter, but if the execution is issued to a county or from the court of a county other than the one in which the judgment was given, on the day when the judgment was docketed in the office of the clerk of the superior court of such county.

3. If the execution is against real or personal property in possession of heirs, devisees, legatees, tenants or trustees, to satisfy the judgment out of such property.

§ 12-1554 Special execution

A special execution shall set forth in substance the portions of the judgment which command the sale or delivery of specific property and the amount of costs or damages, if any, and shall require the officer:

1. If the judgment directs the sale of specific real or personal property, to make sale of such property as directed in the judgment.

2. If the judgment is for the delivery of possession of real or personal property, to deliver possession of the property to the party entitled thereto, and at the same time to satisfy any costs, damages, rents, or profits given by the same judgment, out of the personal property of the person against whom the judgment was given, and the value of the property for which judgment was given shall be specified in the officer's return if a delivery cannot be had. If sufficient personal property cannot be found, the judgment shall be satisfied out of the real property as in the case of a general execution.

§ 12-1555 Return of execution

A. An execution shall be made returnable to the clerk of the court issuing it at any time not less than ten nor more than ninety days after its receipt by the officer to whom directed.

B. When the execution is returned the clerk shall note in the proper docket the amount made by the officer, and to whom paid, and attach the execution to the record of the proceedings.

§ 12-1556 Judgment requiring performance of other acts; service

When a judgment requires the performance of any act other than is designated in the preceding sections of this article, a certified copy of the judgment shall be served upon the party against whom the judgment was given, or upon the person required by the judgment or by law to obey it. Obedience thereto may be enforced by the court by the power to punish for contempt.

§ 12-1557 Issuance of writ to several counties

A. A general execution may be issued to the sheriff of any county in the state, and executions may be issued at the same time, or different times, to different counties.

B. A special execution requiring sale of specific property, or delivery of real or personal property shall be issued to the sheriff of the county where the property, or some part thereof, is situated.

§ 12-1558 Property subject to execution

A. All property, real and personal, not exempt by law, and all property and rights of property seized and held under attachment or garnishment in an action, are liable to execution.

B. Shares and interests in a corporation, and debts and credits, choses in action, and all other property, or any interest therein, legal or equitable, not capable of manual delivery, may be levied upon and sold under execution.

§ 12-1559 Levy of writ of execution; real property; personal property; livestock; shares of stock; partnership interests

The officer to whom the writ is directed shall make the levy as follows:

1. To levy on real estate it is sufficient that the officer endorse the levy on the writ of execution and record with the county recorder of the county where the real property is situated a copy of the writ with the endorsement of levy thereon.

2. To levy on personal property the officer shall take possession when the defendant in execution is entitled to the possession. When the defendant in execution has an interest in personal property but is not entitled to possession of the property, a levy shall be made by giving notice of the levy to the person who is entitled to possession, or to one of them when there are several.

3. To levy upon livestock running at large on a range and which cannot be herded or penned without great inconvenience and expense, it is sufficient that the officer designate, by reasonable estimate, the number of animals, describing them by their marks and brands or either. Such levy shall be made in the presence of two or more persons, and notice of the levy shall be given in writing to the owner or his herder or agent, if residing within the county and known to the officer making the levy. A copy of the writ and the return shall be recorded by the officer with the county recorder of the county where the levy is made.

4. To levy on personal property which, by reason of its bulk or other cause, cannot be immediately removed, it is sufficient that the officer, within three days after the levy, record with the county recorder of the county in which the property is located a certified copy of the execution and of the return of the levy thereon.

5. To levy on the stock of a corporation the officer shall proceed as provided in section 47-8112.

6. To levy on the interest of a partner in partnership property the officer shall leave notice with one or more of the partners or with a clerk of the partnership.

§ 12-1560 New trial after service by publication; superseding judgment

A. When judgment has been rendered on service by publication, and defendant has not appeared, a new trial may be granted upon application of defendant for good cause shown by affidavit, made within one year after rendition of judgment.

B. Execution of the judgment shall not be stayed unless defendant gives bond, approved by the clerk of the superior court, in double the amount of the judgment or value of the property adjudged, payable to plaintiff in the judgment, conditioned that the party will prosecute the application for new trial to effect, and will satisfy such judgment as may be rendered by the court against him.

C. When property has been sold under the judgment and execution before the process was stayed, defendant, if he defeats plaintiff's action, shall not recover the property so sold, but shall have judgment against plaintiff in the judgment for the proceeds of the sale.

§ 12-1561 Judgment creditor having prior lien

If a party recovering judgment has a lien on any property by mortgage or otherwise, or by levy of any writ of attachment or garnishment, no further levy upon such property is necessary, and it may be sold without further levy.

§ 12-1562 Duties of officer in execution; disposition of proceeds; rights of judgment debtor

A. An officer shall execute a general execution against the property of a judgment debtor by levying on a sufficient amount of property, if there is a sufficient amount of such property, and collecting or selling the things in action and selling the other property and paying to the judgment creditor or his attorney so much of the proceeds as will satisfy the judgment. Any excess in the proceeds over the judgment and costs shall be returned to the judgment debtor unless otherwise directed by an order of the court.

B. A judgment debtor may point out to the levying officer the property he desires to be levied on, and if the officer deems it sufficient to satisfy the execution, he shall make levy on no other property.

C. An officer shall execute the special execution by selling the property directed to be sold, or delivering the property directed to be delivered, as directed in the judgment, and by enforcing the collection of damages and costs as in a general execution.

§ 12-1563 Impeding recovery by action or judgment of personal property; classification

A person against whom an action is pending or against whom a judgment has been rendered for the recovery of personal property who knowingly conceals, sells or disposes of such property with intent to hinder or delay execution of the judgment, or with like intent removes the property from the county in which it is located at the time of the commencement of the action or the rendition of judgment, is guilty of a class 6 felony.

§ 12-1564 Indemnification of officer for levy; recovery of costs

If there is a reasonable doubt about the equity interest of a judgment debtor in any property or the liability for the seizure of the property on execution, the officer may require sufficient security from the judgment creditor to indemnify the officer. If security is not provided, the officer is not liable for failing to levy on the property. If the judgment creditor deposits sufficient security to indemnify the officer taking the property, he shall recover from the judgment debtor, together with the costs of the execution, the reasonable costs of the indemnity deposited.

§ 12-1565 Storage of levied property; costs

A. After the officer has completed his levy on the personal property of the judgment debtor, the officer shall secure the property until it is sold. The officer may store the property in a facility operated by the county for this purpose or in a private facility selected by the judgment creditor or the officer or both.

B. The judgment creditor is responsible for paying all costs incurred in transporting and storing the levied property. If the judgment creditor refuses or fails to pay any costs associated with the levy of the property, the officer is not liable for failing to execute the process. The costs incurred by the judgment creditor shall be added to the amount due on the execution and are a part of the execution for the purposes of this article.

§ 12-1566 Execution upon judgments for debts secured by real property; fair market value; hearing; redemption rights; guarantees; applicability

A. This section applies to execution upon real property under a judgment obtained pursuant to section 33-725 or obtained pursuant to section 33-814 or obtained against a guarantor or any other person directly, indirectly or contingently liable on a debt for which a judgment under section 33-725 or 33-814 may be obtained.

B. Any sale of real property under this section shall be a credit on the amount of the judgment in the amount of either the fair market value of the real property determined under subsection C of this section or the sales price of the real property at a sheriff's sale, whichever is greater.

C. Any judgment debtor against whom a judgment has been entered pursuant to section 33-725 or 33-814 may, not later than thirty days after sale of the real property, file a written application with the court for determination of the fair market value of the real property which has been sold. Notice of filing the application and of the hearing shall be given to all parties to the action. The fair market value shall be determined by the court at a priority hearing which shall be held upon such evidence as the court may allow. The court shall issue an order crediting the amount due on the judgment with the greater of the sales price or the fair market value of the real property. Fair market value shall mean the most probable price, as of the date of the execution sale, in cash, or in terms equivalent to cash, or in other precisely revealed terms, after deduction of prior liens and encumbrances with interest to the date of sale, for which the real property or interest therein would sell after reasonable exposure in the market under conditions requisite to a fair sale, with the buyer and seller each acting prudently, knowledgeably and for self-interest, and assuming that neither is under duress. If an application has been filed, there shall be no right to redemption as to the real property sold as provided in sections 12-1281, 12-1282 and 12-1283, except creditors having a junior lien to the lien foreclosed may redeem by five day successive periods as provided in section 12-1282, subsection C, commencing sixty days after the sale of the real property. The redemption price shall be calculated on the sales price of the real property.

D. Except when the primary residence has been given as security pursuant to a mortgage or deed of trust, no primary residence occupied by a judgment debtor covered by subsection A of this section may be sold under execution until all other sales under execution of real property of the judgment debtor in this state have been held and, if timely requested, the hearing pursuant to subsection C of this section has been held. The judgment debtor, within thirty days after entry of judgment, may file with the court a certified list and legal description of the debtor's real property within thirty days after entry of the judgment. This subsection shall not apply to any real property which the judgment holder does not have actual knowledge of at the time of entry of judgment or real property not listed on a certified list filed by the judgment debtor. This subsection shall not require the judgment holder to sell real property which the judgment holder has released from the judgment lien.

E. The obligation of a guarantor may be enforced without regard to this section in accordance with the terms and conditions of the contract between the lender and the guarantor in an action independent of any other action or judgment. A guarantor of the debt or any other person directly, indirectly or contingently liable for the debt who is not a judgment debtor in an action for foreclosure of a mortgage or deed of trust or an action for deficiency judgment shall receive the same credit as the judgment debtor receives pursuant to this section or section 33-814.

F. This section shall not abate, suspend or bar the right of the holder of a debt secured by real property to abandon and release the lien on the real property which secures the debt and proceed against any borrower or guarantor. Abandonment and release shall be evidenced by a recorded release of the lien.

G. This section shall not abate, suspend or bar any action of the holder of the judgment to realize upon or satisfy the judgment from personal property of a judgment debtor or guarantor or any other person directly, indirectly or contingently liable for the debt.

H. The sheriff's deed given pursuant to a sale held under execution or a trustee's deed upon sale under power of sale shall constitute conclusive evidence of the meeting of such requirements in favor of purchasers or encumbrancers for value and without actual notice that any requirements of this section have not been met.

I. For the purposes of subsection D of this section:

1. "Primary residence" means a real property of two and one-half acres or less which is limited to and utilized for either a single one-family or a single two-family dwelling.

2. "Real property of the judgment debtor" means only real property or an interest therein of the judgment debtor at the time of entry of judgment.

§ 12-1567 Satisfaction of judgment; superior court; filing procedures; hearing; bond

A. The prevailing party shall file a satisfaction of judgment in the superior court within forty days after a judgment has been paid in full.

B. If the prevailing party fails to file a satisfaction of judgment or cannot be located after the opposing party has exercised due diligence in attempting to locate the prevailing party, the opposing party may file a motion to compel satisfaction of the judgment. The opposing party shall include with the motion to compel satisfaction of the judgment an affidavit that evidences proof of payment and, if necessary, the due diligence that was performed in attempting to locate the prevailing party. If the motion is granted, the judgment is deemed satisfied.

C. A judge may hold a hearing on the motion to compel satisfaction of the judgment.

D. A judge may compel the moving party to post a bond with the court in the amount of the judgment.

Article 4 Garnishment of Monies or Property

§ 12-1570 Definitions

In this article, unless the context otherwise requires:

1. "Deliver" means any of the following:

(a) To hand deliver.

(b) To mail by regular first class mail to the address which the sender determines through reasonable good faith efforts to be best calculated to reach the recipient in a timely manner.

(c) To serve on a party pursuant to the rules of civil procedure applicable to a summons.

2. "Exempt monies or property" means monies or property that, pursuant to a state or federal law, is not subject to judicial process, including execution, attachment, garnishment, replevin, sale or any final process issued from any court or any other judicial remedy provided for the collection of debts.

3. "Good faith" means honesty in fact in the conduct or transaction concerned.

4. "Judgment creditor" means a person or entity that has a money judgment or an order for support of a person that is due and unpaid or an order pursuant to chapter 14 of this title allowing him to garnish monies, personal property or shares of stock before final judgment on the underlying action.

5. "Judgment debtor" means a person or entity against which a money judgment has been awarded or against which an order for support of a person is due and unpaid or against which an order pursuant to chapter 14 of this title has been entered.

6. "Monies" includes cash, credit and accounts, but does not include earnings as defined in section 12-1598, paragraph 4.

7. "Nonexempt monies or property" means monies or property which are not restricted by law from judicial process.

8. "Personal property" means all property and interests to which a security interest may be perfected pursuant to title 47, chapter 9, except accounts.

9. "Receipt" means actually received.

§ 12-1570.01 Scope of article

A. The provisions of this article are applicable to garnishments of any of the following:

1. Indebtedness owed to a judgment debtor by a garnishee for monies which are not earnings as defined in section 12-1598, paragraph 4.

2. Monies held by a garnishee on behalf of a judgment debtor.

3. Personal property of a judgment debtor that is in the possession of a garnishee.

4. Shares and securities of a corporation or a proprietary interest in a corporation belonging to a judgment debtor, if the garnishee is a corporation.

B. The provisions of this article are not applicable to indebtedness owed to a judgment debtor by a garnishee for monies which are earnings as defined in section 12-1598, paragraph 4.

§ 12-1571 Issuance of writ

A. The clerk of the court or justice of the peace shall issue writs of garnishment, returnable to their respective courts, upon the filing of the application required by section 12-1572 and the bond required by section 12-1573.

B. City and town magistrates may issue writs of garnishment, which are returnable to their respective courts, for nonpayment of any monies payable to the court including but not limited to bonds, fines, fees, sanctions, penalties, surcharges, assessments and restitution imposed in their courts on the filing of the application required by section 12-1572 and the bond required by section 12-1573. A political subdivision or court is considered a judgment creditor for purposes of garnishment.

C. The writ may issue to the judgment creditor as garnishee for property of the judgment debtor in possession of the judgment creditor or a third party.

§ 12-1572 Application for writ of garnishment for monies or property

A writ of garnishment shall be issued pursuant to this article after the judgment creditor or a person on the judgment creditor's behalf makes an application in writing. The application shall contain the following:

1. A statement that the applicant is a judgment creditor.

2. A statement that the applicant has good reason to believe one of the following:

(a) That the garnishee is indebted to the judgment debtor for monies that are not earnings.

(b) That the garnishee is holding nonexempt monies on behalf of the judgment debtor.

(c) That the garnishee has in the garnishee's possession nonexempt personal property belonging to the judgment debtor.

(d) That the garnishee is a corporation and the judgment debtor is the owner of shares in the corporation, or has a proprietary interest in the corporation.

3. The amount of the outstanding balance due on the underlying judgment, together with interest, accrued attorney fees, including fees for the garnishment, if allowed by the judgment or contract and accrued allowable costs, on the date the application is made, and the rate at which interest accrues on that judgment, or if no judgment has been entered, the amount of money damages requested in the judgment creditor's complaint.

4. The address of the garnishee.

§ 12-1573 Bond amount and conditions

If a garnishment is requested and no judgment has been entered, a writ shall not be issued until the judgment creditor executes and delivers to the court a bond payable to the judgment debtor in the amount of the debt claimed therein, conditioned that the judgment creditor will prosecute the action to effect and if return of the property is ordered he will, without delay, return the property together with reasonable interest, damages resulting from its taking and detention, costs and reasonable attorney fees in the action to the judgment debtor.

§ 12-1574 Issuance, service and return of writ; notice to debtor

A. When the judgment creditor has complied with the applicable provisions of sections 12-1572 and 12-1573, the clerk, justice of the peace or city or town magistrate shall issue a writ of garnishment of monies or property and a summons commanding the garnishee to appear before the court out of which the writ issued within the time specified in the writ to answer the writ.

B. The writ shall state:

1. The amount of the outstanding balance due on the judgment, including accrued attorney fees, interest and allowable costs, as of the date of the issuance of the writ, and the rate at which interest accrues on that judgment.

2. The name and address of the garnishee or the garnishee's authorized agent.

3. The name and address of the judgment creditor and the judgment creditor's attorney, if applicable.

4. The last mailing address of the judgment debtor known to the judgment creditor.

C. The judgment creditor, in the manner required for a summons by rules of the court in civil matters or by certified mail, return receipt requested, shall serve on the garnishee two copies of the summons and writ of garnishment, a copy of the underlying judgment, four copies of the answer form, two copies of the notice to judgment debtor and request for hearing form and one copy of the instructions to garnishee provided for in section 12-1596. If served by certified mail, the effective date of service is the date of receipt by the garnishee.

D. Within three days, not including weekends and holidays, the garnishee shall deliver to the judgment debtor a copy of the summons and writ of garnishment, a copy of the underlying judgment and the notice to judgment debtor and request for hearing form.

§ 12-1577 Service of writ on branch of financial institution

A. Monies owing to a judgment debtor by a banking corporation or association, savings bank, savings and loan association, credit union, trust company or title insurance company, maintaining branch offices, or credits or other effects belonging to a judgment debtor and in the possession of or under the control of the banking corporation or association, savings bank, savings and loan association, credit union, trust company or title insurance company, may be levied on by serving a copy of the writ of garnishment on the manager or other officer of the banking corporation or association, savings bank, savings and loan association, credit union, trust company or title insurance company, at any office or branch where service is made. No garnishment shall be effective as to any debt owing by the banking corporation or association, savings bank, savings and loan association, credit union, trust company or title insurance company, if the account evidencing the indebtedness is carried at an office or branch other than the office or branch named in the writ and at which service is made or as to any credits or other effects in its possession or under its control at any other office or branch, unless the service of the writ is accompanied by a cash tender of $25 to the garnishee as costs for the search. On the payment of the search fee the writ shall be effective as to any debt owing by the banking corporation or association, savings bank, savings and loan association, credit union, trust company or title insurance company.

B. Notwithstanding subsection A of this section, service of a writ of garnishment on any banking corporation or association, savings bank, savings and loan association or credit union may also be made by certified mail, return receipt requested, at the garnishee's regular place of business, or to the garnishee's statutory agent or at a location that is designated by the garnishee. If served by certified mail, the effective date of service is the date of receipt by the garnishee or the garnishee's statutory agent.

§ 12-1578 Limitations on transfers by garnishee after service; replevin by judgment debtor

A. From and after the service of all of the documents required to be served pursuant to section 12-1574 the garnishee shall not pay to the judgment debtor any monies or deliver to him any personal property which is not exempt, and the garnishee, if a corporation in which the judgment debtor is alleged to be the owner of shares or to have an interest, shall not permit or recognize any sale or transfer of the judgment debtor's shares or interest, if it is within the legal power of the garnishee to do so. Any such payment, delivery, sale or transfer is void and of no effect as to so much of the monies, personal property, shares or interest as is necessary to satisfy the judgment creditor's demand, except that this provision shall not void or impair the rights of a bona fide transferee, for value and without notice of the garnishment, of negotiable instruments, documents of title, corporate stock or securities, or other documents or instruments which embody legal rights transferable only by transfer of the documents or instruments themselves, unless the document or instrument is held by the garnishee at the time of service of the writ of garnishment.

B. A financial institution shall not withhold from the judgment debtor the amount set forth as exempt pursuant to section 33-1126, subsection A, paragraph 9, unless ordered by the court to do so after a hearing pursuant to section 12-1580.

C. The judgment debtor may at any time before judgment replevy any property garnished by giving bond to be approved and filed in the action by the officer who issued the writ of garnishment, in double the amount of the judgment creditor's debt, or, at the judgment debtor's option, by giving bond for the value of the property garnished as determined by the court, justice of the peace or city or town magistrate, and conditioned upon the payment of any judgment that may be given against the garnishee in the action or for payment of the value of the property garnished.

D. When the judgment debtor gives bond, he may make any defense which the garnishee could make in such action.

E. If judgment is given in favor of the judgment creditor it shall be against the judgment debtor and the sureties on the replevin bond for the amount of such judgment.

§ 12-1578.01 Time for answer

The writ, whether issued in the superior court, the justice court or the municipal court, shall require the garnishee to answer within ten days after being served with the writ.

§ 12-1579 Answer of garnishee

A. The answer of the garnishee shall be under oath, in writing and signed by him, and shall make true answers to the writ. If a partnership is the judgment debtor, or if there are more judgment debtors than one, the garnishee shall answer as to the partnership and as to each judgment debtor named in the writ.

B. The answer of any garnishee, including a corporate garnishee, may be filed by the garnishee without representation by an attorney.

C. At the time of filing the answer, the garnishee shall deliver a copy of the answer to the judgment debtor and the judgment creditor or the judgment creditor's attorney, if applicable.

D. The answer of the garnishee shall set forth the following:

1. Whether the garnishee was indebted to or otherwise in possession of monies of the judgment debtor at the time the writ was served.

2. The total amount of indebtedness or monies in possession of the garnishee at the time the writ was served.

3. The amount of indebtedness or monies withheld by the garnishee pursuant to the writ.

4. The amount of indebtedness or monies not withheld by the garnishee, and the reason for not withholding.

5. Whether the garnishee was in possession of personal property of the judgment debtor at the time the writ was served.

6. A description of each item, or group of items, of personal property of the judgment debtor in the garnishee's possession at the time the writ was served.

7. A list of the personal property withheld by the garnishee pursuant to the writ.

8. What other person or entity, within his knowledge, is indebted to the judgment debtor or in possession of personal property of the judgment debtor.

9. Whether the garnishee is a corporation in which the judgment debtor owns shares of stock or some other interest.

10. A statement of the number and types of shares owned by the judgment debtor and a description of any other interest the judgment debtor owns in the garnishee corporation as of the date the writ was served, as shown on the corporation's records.

11. The name, address and telephone number of the garnishee.

12. The date and manner of delivery to the judgment debtor of a copy of the writ and the notice to judgment debtor.

13. The date and manner of delivery of a copy of the answer to the judgment creditor and judgment debtor.

§ 12-1580 Objection to garnishment or answer; hearing

A. A party who has an objection to the writ of garnishment, the answer of the garnishee or the amount held by the garnishee or a party claiming an exemption from garnishment, not later than ten days after the receipt of the answer, may file a written objection and request for hearing. Copies of the objection shall be delivered to all parties to the writ at the time of filing the request for hearing form.

B. The hearing on an objection to the writ, answer or amount on a claim of exemption shall be commenced within five days after the request, not including weekends and holidays, but may be continued for good cause on terms the court deems appropriate after due consideration of the importance of the judgment debtor's rights and the need for a speedy determination. Good cause includes a situation in which the objection raised at the hearing is different from that set forth in the request for hearing. The hearing shall not be held later than ten days from the date of the request unless the request for a continuance is made by the judgment debtor.

C. A party requesting a hearing pursuant to this section is required to state the grounds for his objection in writing, but the objecting party is not limited to those written objections at the hearing conducted pursuant to this section.

D. The court shall notify the parties of the date and time of the hearing at least two days, not including weekends and holidays, before the date of the hearing.

E. The prevailing party may be awarded costs and attorney fees in a reasonable amount determined by the court. The award of attorney fees that are incurred due to the objection shall not be assessed against nor is it chargeable to the judgment debtor, unless the judgment debtor is found to have objected to the writ solely for the purpose of delay or to harass the judgment creditor.

§ 12-1581 Discharge of garnishee

A. If it appears from the answer of the garnishee that he did not owe nonexempt monies to the judgment debtor when the writ was served on him or that he did not have in his possession any nonexempt personal property of the judgment debtor when the writ was served, and if no written objection to the answer is timely filed, the court shall enter judgment discharging the garnishee.

B. When the garnishee is a corporation in which the judgment debtor is alleged to be the owner of shares of stock or an interest, if the answer shows that the judgment debtor is not and was not when the writ was served the owner of any shares or interest and if no written objection is timely filed, the court shall enter judgment discharging the garnishee.

§ 12-1582 Notice to garnishee of dismissal; hearing on costs and attorney's fee

Actions in garnishment in which an answer has been filed by a garnishee shall not be dismissed except upon notice to the garnishee and an opportunity to be heard upon the question of allowance of garnishee's costs and attorney's fee.

§ 12-1583 Judgment by default against garnishee

If a garnishee fails to answer within the time specified in the writ, the judgment creditor for whom the writ has been issued may petition the court for the issuance of an order requiring the garnishee to appear before the court at a time and place specified in the order to answer the writ or to file and serve a copy of the answer on the judgment creditor for whom the writ has been issued, or on his attorney if the party is represented by counsel, at least five days before the appearance date. If the garnishee fails to appear or file and serve the answer after the service of the order requiring the appearance in person or answer upon the garnishee, the court may, after judgment has been rendered against the judgment debtor, render judgment by default against the garnishee for the full amount of the judgment against the judgment debtor. The court may award a reasonable attorney's fee to the judgment creditor for whom the writ was issued and against the garnishee if the writ was not answered within the time specified in the writ and a petition requiring the garnishee to appear or answer was filed as provided in this section.

§ 12-1584 Judgment against garnishee; objection; hearing

A. In a garnishment of monies or indebtedness, if the answer shows that the garnishee was indebted to the judgment debtor at the time of service of the writ, and no objection to the writ or answer is timely filed, on application by the judgment creditor the court shall enter judgment on the writ against the garnishee for the amount of the nonexempt monies of the judgment debtor owed or held by the garnishee at the time of service of the writ.

B. If a timely objection is filed the court, after hearing evidence and argument, shall determine whether the writ is valid against the judgment debtor, what amount is presently due and owing on the underlying judgment and what amount of nonexempt monies, if any, the garnishee was holding for or owed to the judgment debtor at the time the writ was served, and the court shall enter judgment on the writ against the garnishee for that amount or enter an order discharging the garnishee if no nonexempt monies are determined owing.

C. The judgment creditor shall deliver a copy of the judgment on the writ against the garnishee to the garnishee and the judgment debtor, and on receipt of a copy of the judgment entered by the court the garnishee shall immediately transfer the adjudged nonexempt monies to the judgment creditor.

D. A judgment pursuant to subsection A or B shall not be for more than the amount of the outstanding balance of the underlying judgment, including accrued interest and costs and attorney fees, if awarded.

E. The court, sitting without a jury, shall decide all issues of fact and law.

§ 12-1585 Order regarding personal property subject to garnishment; objection; hearing

A. If the answer shows that the garnishee was holding personal property of the judgment debtor at the time the writ was served, and no objection to the writ or answer is timely filed, on application by the judgment creditor the court shall enter an order on the writ against the garnishee to hold the nonexempt personal property of the judgment debtor held by the garnishee when the writ was served pending service of a writ of special execution pursuant to section 12-1554.

B. If a timely objection is filed the court, after hearing evidence and argument, shall determine whether the writ is valid against the judgment debtor, what amount is presently due and owing on the underlying judgment and what amount of nonexempt personal property of the judgment debtor, if any, the garnishee was holding at the time the writ was served, and the court shall enter an order on the writ against the garnishee to hold the nonexempt personal property or enter an order discharging the garnishee if no nonexempt personal property is determined to be held by the garnishee.

C. The judgment creditor shall deliver a copy of the order on the writ to the garnishee and the judgment debtor.

D. An order entered pursuant to subsection A or B of this section shall not order more property held than is reasonably necessary to satisfy the amount of the outstanding balance of the underlying judgment, together with accrued interest and costs and attorney fees, if awarded.

E. An order entered pursuant to subsection A or B of this section shall order the garnishee to hold the adjudged nonexempt personal property from the judgment debtor and to deliver the property to the sheriff or any constable presenting a writ of general execution or special execution based on the underlying judgment. The court may order the judgment debtor or the garnishee, or both, to execute and deliver to the sheriff or constable such instruments or documents as are within the legal power of the judgment debtor or garnishee to execute and to deliver. To effectuate the execution and delivery, the court may order a garnishee corporation to issue and deliver unissued stock or securities of the corporation owned by the judgment debtor.

F. If no writ of special execution is served on the garnishee by the sheriff or constable within ninety days after the entry of the order pursuant to subsection A or B of this section, the order on the writ expires, the garnishee has no further obligation on the writ and the garnishee is no longer restricted from transferring the nonexempt personal property to the judgment debtor.

§ 12-1587 Discharge of garnishee if judgment or order not obtained within ninety days; exceptions

If no judgment or order is entered against the garnishee within ninety days after the filing of the garnishee's answer, any monies, property, shares or other interest held by the garnishee pursuant to the writ shall be released to the judgment debtor, and the garnishee shall be discharged on the writ and fully and completely released from any further liability to the judgment creditor with respect to the property released pursuant to this section. This section is not applicable if either party has filed a written objection pursuant to section 12-1580, nor to monies or property held for a trustee in bankruptcy if the judgment debtor has filed bankruptcy, nor to monies or property held under provisional remedies pursuant to chapter 14 of this title.

§ 12-1588 Answer disclosing shares of stock; judgment and sale

A. If the garnishee is a corporation and it appears from the answer or otherwise that the judgment debtor is or was when the writ of garnishment was served the owner of any shares of stock in the corporation, or of any interest therein, the court shall give judgment ordering the sale under execution in favor of the judgment creditor against the judgment debtor of such shares or interest of the judgment debtor, or so much thereof as is necessary to satisfy the execution.

B. The sale shall be conducted as other sales of personal property under execution, and the officer making the sale shall execute a transfer of the shares or interest to the purchaser, briefly reciting the judgment under which they were sold.

C. The sale shall pass to the purchaser all the right, title and interest which the judgment debtor had in the shares of stock, or in the corporation, and the officers of the corporation shall enter the sale and transfer on the books of the corporation as if they had been made by the judgment debtor.

§ 12-1591 Taxing costs

A. When the garnishee is discharged on the garnishee's answer, the cost of the proceeding, including reasonable compensation to the garnishee, shall be taxed against the judgment creditor.

B. When there is no written objection to the answer of the garnishee and the garnishee is held on the garnishee's answer, the attorney fees that are allowed by section 12-1572, paragraph 3 and costs as provided in subsection A of this section shall be taxed against the judgment debtor.

C. Where the answer is objected to in writing the attorney fees and costs shall abide the issue.

§ 12-1592 Obedience of garnishee to judgment as bar

It shall be a sufficient answer to any claim of the judgment debtor against the garnishee founded on any indebtedness of the garnishee, or on the possession by him of any property, or if the garnishee is a corporation in which the judgment debtor was the owner of shares of stock or other interest in the corporation, for the garnishee to show that the indebtedness has been paid, that the property has been delivered or that the shares of stock or other interest has been sold under judgment of the court in accordance with the provisions of this article.

§ 12-1593 Contempt proceedings

A. If the judgment creditor fails to comply with any duty imposed upon him by this article, the court shall, upon petition of any party to the proceedings affected by such failure and after notice, hold a hearing to determine whether such failure to comply, if any, was occasioned by mistake, inadvertence or excusable neglect. If the court determines that any failure to comply was not the result of mistake, inadvertence or excusable neglect, the court shall find the judgment creditor in contempt and shall award the petitioner all of the following:

1. An amount to compensate for actual losses, if any, caused by the failure to comply.

2. Reasonable attorney fees, if the petitioner was represented by an attorney at such hearing.

3. Court costs.

4. An additional amount of not less than one hundred nor more than one thousand dollars.

B. If a bank, savings and loan association or credit union refuses to keep free from a writ of garnishment a total of one hundred fifty dollars in one or more of the accounts subject to the writ for each judgment debtor who has an interest in the account, or if a garnishee fails after a written notice and a thirty day grace period to comply with the terms of a judgment or order entered pursuant to section 12-1584 or 12-1585, unless that judgment or order is stayed or has expired, the judgment debtor may petition the court for relief. The court shall, after notice, hold a hearing to determine if such refusal or failure, if any, was wilful or the result of gross negligence. If the court determines that the refusal or failure was wilful or the result of gross negligence the court shall find the bank, savings and loan association, credit union or other garnishee in contempt and shall award the judgment debtor all of the following:

1. An amount to compensate for actual losses, if any, caused by the refusal or failure.

2. Reasonable attorney fees, if the judgment debtor was represented by an attorney at such hearing.

3. Court costs. The court may award the judgment debtor an additional amount of not to exceed four hundred dollars.

C. If a garnishee fails, after a written notice and a thirty day grace period, to comply with the terms of a judgment or order entered pursuant to section 12-1584 or 12-1585, unless that judgment or order is stayed or has expired, the judgment creditor may petition the court for relief. The court shall, after notice, hold a hearing to determine if such failure, if any, was wilful or the result of gross negligence. If the court determines that the failure was wilful or the result of gross negligence, the court shall find the garnishee in contempt and shall award the judgment creditor all of the following:

1. An amount to compensate for actual losses, if any, caused by the failure.

2. Reasonable attorney fees, if the judgment creditor was represented by an attorney at such hearing.

3. Court costs. The court may award the judgment creditor an additional amount of not to exceed four hundred dollars.

D. If after conducting a hearing required by subsection A, B or C of this section, the court determines that a petition filed pursuant to subsection A, B or C of this section is without merit, the court may award reasonable attorney fees to any party adversely affected by the petition, if the party adversely affected was represented by an attorney at such hearing.

E. A party may request the court to order the relief set forth in subsection A, B, C or D of this section in the case which is the basis of the garnishment.

F. This section does not restrict a party from pursuing any common law remedies.

§ 12-1595 Garnishment of bank account in names of two or more persons; bond of judgment creditor

A. A bank deposit made in the names of two or more persons shall be subject to garnishment.

B. The answering garnishee shall, upon service of the writ, impound all funds then present in the bank account, and shall promptly notify each person who appears from the business records of the garnishee to have an interest in such bank account in addition to the judgment debtor that such account has been impounded, the name of the judgment creditor and judgment debtor and the court in which the action is pending as stated on the writ. The notice may be made personally or by registered mail, postage prepaid, addressed to each such person at his last known address as reflected by the business records of the garnishee.

C. The answer of the garnishee, in such case, shall state under oath the names of all persons who appear from the business records of the garnishee to have an interest in the bank account in addition to the judgment debtor. Upon the filing of the answer the court shall join all persons who appear to have an interest in the bank account in addition to the judgment debtor, as reflected by the answer of garnishee, and shall proceed to a determination of the interest of the judgment debtor therein.

D. Upon entry of an order based upon such proceeding all impounded funds, except those of the judgment debtor, shall be released by the garnishee. The matter shall otherwise proceed as in any other garnishment action.

E. All persons whose funds are impounded under the provisions of this section shall, together with the judgment debtor, be considered to be joint and several obligees of the bond provided for by section 12-1573, but the liability of the sureties on such bond shall be limited to the amount of the penal sum named in the bond.

§ 12-1596 Forms

A. The court, justice of the peace or city or town magistrate shall provide to the parties, at no charge, copies of the following documents required to be delivered pursuant to section 12-1574:

1. The notice to judgment debtor and request for hearing form.

2. The answer form.

3. The instructions to garnishee.

B. The notice to judgment debtor and request for hearing form shall be in a form prescribed by the supreme court and shall contain at least the following:

1. An explanation of the judgment debtor's rights and responsibilities relating to the garnishment procedure, including information concerning:

(a) Exemption rights.

(b) Grounds for objecting to the writ.

(c) The objection and hearing procedures.

2. A form on which the judgment debtor may request a hearing.

C. The notice to judgment debtor and request for hearing form prescribed by the supreme court shall be in substantially the following form:

Notice to judgment debtor or defendant

(Non-earnings)

You are hereby notified that this court has issued an order in the above case in favor of the judgment creditor in this proceeding, directing that some of your money, property or corporate shares or interest be used to satisfy some of your debt to the judgment creditor. The order was issued to enforce the judgment creditor's judgment, support order or provisional remedy order against you that was obtained in (the name of court) in (case number) on (date). A copy of the judgment or order is attached.

The law provides that monies from certain benefits or in certain amounts are free from the claims of creditors even if deposited in a bank, savings and loan association or credit union. Some examples of exempt monies appear later in this notice. The law also provides that certain personal property is exempt from the claims of creditors. Some examples of exempt property appear later in this notice.

Within ten days after being served with the writ of garnishment the garnishee who is holding your money or personal property is required to mail or deliver to you his answer stating what money or personal property he is withholding from you for the judgment creditor pursuant to the writ.

You may object to the garnishment or file a claim of exemption by requesting a hearing with this court, if you believe any of the following is true:

1. The judgment creditor does not have a valid provisional remedy order or support order or judgment against you or that the debt or judgment has been paid in full.

2. Some or all of the monies which are being withheld by the garnishee may be exempt monies. Examples of exempt monies are:

(a) One hundred fifty dollars in a bank, savings and loan association or credit union account. (Three hundred dollars for married account holders.)

(b) Temporary assistance for needy families.

(c) Supplemental security income (SSI).

(d) Social security benefits (SSA).

(e) United States department of veterans affairs benefits (VA).

(f) Certain pension benefits and retirement funds.

(g) Workers' compensation benefits.

(h) Some insurance proceeds.

Other state and federal exemptions may apply. Certain exemptions may not apply to support orders or to the collection of taxes. An attorney can assist you in determining what monies are exempt.

3. Some or all of the personal property being withheld by the garnishee may be exempt property. Examples of exempt personal property are:

(a) Household goods, furniture and appliances.

(b) Up to one thousand five hundred dollars equity value for each owner of a car or truck. (Three thousand dollars equity value if the owner has a physical disability.)

(c) Wearing apparel, musical instruments, televisions or stereos and other personal items.

(d) Tools and equipment used in a commercial activity, trade, business or profession.

These exemptions are limited in statute by description and dollar value. An attorney can assist you in determining what personal property is exempt.

4. More than fifteen days have passed since the garnishee was served with the writ and you have not yet received the garnishee's answer.

5. You otherwise disagree with the answer of the garnishee. To request a hearing, deliver the request for hearing form appearing below, or a substantially similar form, to the court clerk's office. At the same time, you must mail or deliver a copy (photocopy or handwritten copy) of the request for hearing to the judgment creditor and the garnishee at the address stated in the writ. If you do not deliver the request for hearing form to this court within ten days after the date you receive the answer of garnishee, your request for hearing will be denied, unless a good reason for the delay, acceptable to the court, is shown.

If you request a hearing it will be held no later than five days, not including weekends and holidays, after your request is received by the court. If appropriate, you may request a hearing before the garnishee files his answer.

The court will notify you and the other parties of the time and date of the hearing. You may attend the hearing with or without an attorney.

Request for hearing

I request a hearing to object to the garnishment or claim exempt monies because:

_______ 1. The judgment is not valid.

_______ 2. The judgment has been paid.

_______ 3. Exempt monies are being garnished:

_______ (a) One hundred fifty dollars in a bank, savings and loan association or credit union.

_______ (b) Temporary assistance for needy families, social security benefits, supplemental security income or United States department of veterans affairs benefits.

_______ (c) Other pension or retirement benefits.

_______ (d) Workers' compensation or other insurance benefits.

_______ (e) Other _______________________________.

_______ 4. Exempt personal property is being garnished:

_______ (a) Household goods, furnishings or appliances.

_______ (b) Motor vehicle equity under one thousand five hundred dollars or three thousand dollars, if applicable.

_______ (c) Personal items.

_______ (d) Tools and equipment of a trade.

_______ (e) Other _____________________________.

_______ 5. No answer has been received within fifteen days.

_______ 6. The answer of the garnishee is incorrect.

_______ 7. Other __________________________________.

---

Date

---

Name (print)

---

Signature

---

Address

---

City, state, zip code

---

Telephone number

Warning: To request a hearing, this document, or one similar, must be received by this court within ten days after your receipt of the answer of garnishee, unless good reason for the delay is shown.

D. At the top of the first page of the notice to judgment debtor and request for hearing form described in subsections B and C of this section, a Spanish translation shall be printed of the following language:

The court has issued an order requiring the garnishee to deliver money or property it owes you to the judgment creditor because of the judgment he has against you. In some circumstances your money or property is protected by law from being taken. This is explained in the notice. A Spanish translation of that notice can be obtained from the court.

E. The answer form shall be in a form prescribed by the supreme court and shall require at a minimum that the answer of the garnishee set forth those items required to be set forth pursuant to section 12-1579, subsection D.

F. The instructions to garnishee shall be in a form prescribed by the supreme court and shall contain at a minimum:

1. An explanation of the garnishee's responsibilities relating to the garnishment procedure, including instructions for the proper completion of the required forms.

2. A notice to the garnishee concerning the provisions of sections 12-1583 and 12-1593.

G. A party to a garnishment proceeding may use documents other than those provided pursuant to subsection A of this section, if such documents are substantially similar to those prescribed by the supreme court pursuant to this section.

§ 12-1597 Mailing; receipt; presumptions

A. For the purposes of this article, it is presumed that a document has been received five days after it is mailed as provided in section 12-1570, paragraph 1, subdivision (b).

B. For the purposes of the article, if a party to the garnishment action mails a document to the address contained in the writ or to the most recent address contained in the party's records, it is presumed that the party has complied with the good faith requirement of section 12-1570, paragraph 1, subdivision (b).

C. For the purposes of this article, delivery as defined by section 12-1570, paragraph 1, subdivision (b) shall not be deemed service by mail.

Article 4.1 Garnishment of Earnings

§ 12-1598 Definitions

In this article, unless the context otherwise requires:

1. "Debt scheduling" means counseling and assistance provided to persons by a qualified debt counseling organization if:

(a) The counseling and assistance are manifested by a written agreement.

(b) The persons pay that portion of their income that has been determined to not be required to make payments for support of a person or to maintain health or the essentials of life.

(c) The payments are made to the qualified debt counseling organization until the debts are fully satisfied.

(d) The debts are determined as follows:

(i) The creditors are notified by the qualified debt counseling organization of the person's intent to participate in debt scheduling and of their opportunity to object to the participation within fifteen days after receiving the notice.

(ii) A creditor not so notified is not subject to the agreement.

(iii) A creditor who timely objects, in writing, is not subject to the agreement.

(iv) A creditor who does not timely respond to the notice, in writing, is subject to the agreement.

(e) The agreement is terminated on the occurrence of any of the following:

(i) Agreement of the parties.

(ii) Payment in full.

(iii) Death of the persons.

(iv) Filing of a voluntary or involuntary petition in bankruptcy.

(v) Failure to pay, within fifteen days of its due date, any payment due under the agreement.

2. "Deliver" means any of the following:

(a) To hand deliver.

(b) To mail by regular first class mail to the address which the sender determines through reasonable good faith efforts to be best calculated to reach the recipient in a timely manner.

(c) To serve on a party pursuant to the rules of civil procedure applicable to service of a summons.

3. "Disposable earnings" means that amount remaining from the gross earnings for a pay period after the deductions required by state and federal law.

4. "Earnings" means compensation paid or payable for personal services, whether these payments are called wages, salary, commission, bonus or otherwise. Earnings include periodic payments pursuant to a pension or retirement program.

5. "Effective agreement" means an agreement under which no act of termination has occurred.

6. "Exempt earnings" means those earnings or that portion of earnings which pursuant to state or federal law is not subject to judicial process including garnishment.

7. "Good faith" means honesty in fact in the conduct or transaction concerned.

8. "Judgment creditor" means a party who has a money judgment or an order for support of a person that is due and unpaid.

9. "Judgment debtor" means a party against whom a money judgment or order for support of a person has been awarded.

10. "Nonexempt earnings" means those earnings or that portion of earnings which is subject to judicial process including garnishment.

11. "Payday" means the fixed, regular day for payment of wages designated by an employer pursuant to section 23-351.

12. "Qualified debt counseling organization" means a nonprofit corporation authorized to do business in this state for the purpose of counseling persons with respect to their financial obligations and assisting them in dealing with their creditors.

13. "Receipt" means actually received.

§ 12-1598.01 Scope of article

A. The provisions of this article are applicable to indebtedness owed to a judgment debtor by a garnishee for monies which are earnings as defined in section 12-1598, paragraph 4. Earnings become monies, as defined in section 12-1570, paragraph 6, upon their disbursement by the employer to or for the account of the employee, except disbursements into a pension or retirement fund.

B. The provisions of this article are not applicable to garnishments of:

1. Indebtedness owed to a judgment debtor by a garnishee for amounts which are not earnings as defined in section 12-1598, paragraph 4.

2. Monies held by a garnishee on behalf of a judgment debtor.

3. Personal property of a judgment debtor that is in the possession of a garnishee.

4. Shares or securities of a corporation or a proprietary interest in a corporation belonging to a judgment debtor, if the garnishee is a corporation.

§ 12-1598.02 Grounds for issuance of writ of garnishment of earnings

The clerk of the court, justice of the peace or city or town magistrate shall issue writs of garnishments of earnings, returnable to that court, only in cases in which a party to that action is a judgment creditor. The city or town magistrate shall issue writs of garnishment only for nonpayment of fines, fees, sanctions and restitution imposed in that court.

§ 12-1598.03 Application for writ of garnishment for earnings

A writ of garnishment shall be issued pursuant to this article after the judgment creditor or a person on the judgment creditor's behalf makes an application in writing. The application shall state the following:

1. That the judgment creditor is a party in an action to whom a money judgment has been awarded.

2. That the judgment creditor has made demand on the judgment debtor for payment of the amount adjudged due, but the judgment debtor has not paid that amount and the judgment debtor has not agreed and continued to pay the nonexempt portion of the judgment debtor wages until the judgment is satisfied.

3. The amount of the outstanding balance due on the judgment on the date that the application is made, together with interest, accrued attorney fees, including fees for the garnishment, if allowed by the judgment or contract and allowable costs, is that amount stated on the application.

4. That the garnishee is believed to be an employer of the judgment debtor or otherwise owes or will owe to the judgment debtor disposable earnings.

5. The name and address of the garnishee or the garnishee's authorized agent.

6. That the judgment creditor has not received notice of the judgment debtor's intent to enter into an agreement for debt scheduling with a qualified debt counseling organization or, if such a notice has been received, that the judgment creditor timely objected, in writing, to the judgment debtor's participation in such an agreement or that the judgment creditor has been notified that the agreement is no longer effective.

§ 12-1598.04 Issuance of writ of garnishment for earnings; service and return of writ; lien on nonexempt earnings

A. If a party in an action has been awarded a money judgment and has submitted the application provided for in section 12-1598.03, the clerk, justice of the peace or city or town magistrate shall immediately issue a writ and summons of garnishment directed to the sheriff, the constable or any officer authorized by law to serve process in the county where the garnishee is alleged to be which commands him to immediately summon the garnishee to appear before the court out of which the writ issued within the time specified in the writ to answer the writ.

B. The writ shall state:

1. The amount of the outstanding balance due on the judgment, including accrued interest, attorney fees and allowable costs, as of the date of the issuance of the writ, and the rate at which interest accrues on that judgment.

2. The name and address of the garnishee or his authorized agent.

3. The name and address of the judgment creditor and his attorney, if applicable.

4. The last mailing address of the judgment debtor known to the judgment creditor.

C. The judgment creditor, in the manner required for a summons by rules of the court in civil matters, shall serve on the garnishee two copies of the writ of garnishment and summons, a copy of the underlying judgment, four copies of the answer form, two copies of the notice to judgment debtor and request for hearing form, two copies of the instructions to garnishee and four copies of the nonexempt earnings statement provided for in section 12-1598.16.

D. The judgment creditor shall deliver to the judgment debtor a copy of the writ and the initial notice to judgment debtor and request for hearing form within three days, not including weekends and holidays, after service of the summons and writ of garnishment on the garnishee. The judgment creditor shall certify in writing to the court the date and manner of delivery.

E. The caption of pleadings in connection with a writ of garnishment shall identify which party is the judgment creditor, using that term, and which party is the judgment debtor, using that term, in addition to other party designations already in the caption.

§ 12-1598.05 Initial lien

A. The writ is a lien on the nonexempt earnings of the judgment debtor from the date of service of the writ until any one of the following occurs:

1. An order of continuing lien is entered.

2. If no order is entered for a period of forty-five days after the date of the filing of the answer.

3. The writ is quashed, released or becomes ineffective as a result of the circumstances set forth in section 12-1598.10, subsection D.

B. The garnishee shall not remit any withheld earnings to the judgment creditor until an order of the court has been entered pursuant to section 12-1598.10.

C. The garnishee is not liable to the judgment creditor for failing to withhold earnings from a judgment debtor if those earnings were paid to the judgment debtor on a payday falling within three days, not including weekends and holidays, after the date of the service of the writ.

§ 12-1598.06 Time for answer

The writ, whether issued in the superior court, the justice court or the municipal court, shall require the garnishee to answer within ten days from service of the writ.

§ 12-1598.07 Objection to garnishment, answer or nonexempt earnings statement; hearing

A. A party who has an objection to the writ of garnishment, the answer of garnishee or a nonexempt earnings statement may file a written objection and request for hearing on a form similar to those set forth in section 12-1598.16. The hearing must be requested no later than ten days after receipt of the answer or nonexempt earnings statement objected to unless good cause for filing the request later is shown. At the time of filing the request for hearing form, the party filing the objection shall deliver a copy of the form to all parties to the writ.

B. The hearing on an objection to the writ, answer or amount withheld or on a claim of exemption shall be commenced within ten days after receipt of the request by the court but may be continued for good cause on terms the court deems appropriate after due consideration of the importance of the judgment debtor's rights and the need for a speedy determination. Good cause includes a situation in which the objection raised at the hearing is different from that set forth in the request for hearing form. The hearing shall not be held later than fifteen days after the date the request was received by the court unless the request for a continuance is made by the judgment debtor.

C. A party requesting a hearing pursuant to this section is required to state the grounds for the party's objection in writing, but the objecting party is not limited to those written objections at the hearing conducted pursuant to this section.

D. The court shall notify the parties of the date and time of the hearing at least two days, not including weekends and holidays, before the date of the hearing.

E. The prevailing party may be awarded costs and attorney fees in a reasonable amount determined by the court. An award of attorney fees that are incurred due to the objection shall not be assessed against nor is it chargeable to the judgment debtor unless the judgment debtor is found to have objected solely for the purpose of delay or to harass the judgment creditor.

§ 12-1598.08 Answer of garnishee to writ of garnishment of earnings; filing; delivery; notice

A. The answer of the garnishee shall be under oath, in writing and signed by him and shall make true answers to the writ. If there are more judgment debtors than one, the garnishee shall answer as to each judgment debtor named in the writ. The answer of any garnishee, including a corporate garnishee, may be filed by the garnishee without representation of an attorney.

B. The answer of the garnishee shall set forth the following:

1. Whether the judgment debtor was employed by the garnishee on the date the writ was served.

2. Whether the garnishee anticipates owing earnings within sixty days after the date of service of the writ.

3. If the garnishee is unable to determine the identity of the judgment debtor after making a good faith effort to do so, a statement of the effort made and reasons for such inability.

4. The dates of the next two paydays occurring after the date of service of the writ.

5. The pay period of the judgment debtor, whether weekly, biweekly, semimonthly, monthly or another specified period.

6. The amount of the outstanding judgment now due and owing as stated in the writ.

7. Whether the judgment debtor is subject to an existing wage assignment, garnishment or levy, and if so, the name, address and telephone number of that judgment creditor.

8. The name, address and telephone number of the garnishee.

9. The date and manner of delivery of a copy of the answer to the judgment debtor and judgment creditor.

C. The garnishee shall deliver a copy of the answer to the judgment creditor or the judgment creditor's attorney, if applicable. At the same time the garnishee shall deliver a copy of the answer and a copy of the notice to judgment debtor and request for hearing form to the judgment debtor. The garnishee shall state the time and manner of delivery in the answer.

§ 12-1598.09 Discharge of garnishee

If it appears from the answer of the garnishee that he did not employ the judgment debtor at the time the writ was served, would not owe earnings to the judgment debtor within sixty days after service of the writ on the garnishee or the garnishee was unable to determine the identity of the judgment debtor after making a good faith effort to do so, and if no written objection is timely filed, the court shall enter judgment discharging the garnishee.

§ 12-1598.10 Continuing lien on earnings; order

(L21, Ch. 306, sec. 8)

A. If it appears from the answer of the garnishee that the judgment debtor was an employee of the garnishee, or that the garnishee otherwise owed earnings to the judgment debtor when the writ was served, or earnings would be owed within sixty days thereafter and there is no timely written objection to the writ or the answer of the garnishee filed, on application by the judgment creditor the court shall order that the nonexempt earnings, if any, withheld by the garnishee after service of the writ be transferred to the judgment creditor who is entitled to such monies subject to the judgment debtor's right to objection and hearing pursuant to this article. The court shall further order that the garnishment is a continuing lien against the nonexempt earnings of the judgment debtor.

B. If a timely objection is filed the court shall conduct a hearing pursuant to section 12-1598.07 and shall make the following determinations:

1. Whether the writ is valid against the judgment debtor.

2. The amount outstanding on the judgment at the time the writ was served, plus accruing attorney fees and costs.

3. Whether the judgment debtor was employed by the garnishee at the time the writ was served.

4. Whether earnings were owed or would be owed by the garnishee to the judgment debtor within sixty days after the service of the writ.

5. Whether the debt was, at the time of service of the writ, subject to an effective agreement for debt scheduling between the judgment debtor and a qualified debt counseling organization.

C. If the court makes an affirmative determination under subsection B, paragraph 1 of this section and subsection B, paragraph 3 or 4 of this section and determines that the debt was not, at the time of service of the writ, subject to an effective agreement between the judgment debtor and a qualified debt counseling organization, the court shall order that the nonexempt earnings, if any, withheld by the garnishee after service of the writ be transferred to the judgment creditor and further order that the garnishment is a continuing lien against the nonexempt earnings of the judgment debtor. Otherwise the court shall order the garnishee discharged from the writ.

D. A continuing lien ordered pursuant to this section is invalid and of no force and effect on the occurrence of any of the following conditions:

1. The underlying judgment is satisfied in full, is vacated or expires.

2. The judgment debtor leaves the garnishee's employ for more than sixty days or, if the judgment debtor is an employee of a school district, a charter school, the Arizona state schools for the deaf and the blind or an accommodation school and the judgment debtor is subject to an employment contract that specifies that paydays are restricted to the school year, for more than ninety days.

3. The judgment creditor releases the garnishment.

4. The proceedings are stayed by a court of competent jurisdiction, including the United States bankruptcy court.

5. The judgment debtor has not earned any nonexempt earnings for at least sixty days or, if the judgment debtor is an employee of a school district, a charter school, the Arizona state schools for the deaf and the blind or an accommodation school and the judgment debtor is subject to an employment contract that specifies that paydays are restricted to the school year, for at least ninety days.

6. The court orders that the garnishment be quashed.

E. If no objections are filed to the answer of the garnishee and an order of continuing lien is not entered within forty-five days after the filing of the answer of the garnishee, any earnings held by the garnishee shall be released to the judgment debtor and the garnishee shall be discharged from any liability on the garnishment.

F. If at the hearing the court determines that the judgment debtor is subject to the twenty-five percent maximum disposable earnings provision under section 33-1131, subsection B and based on clear and convincing evidence that the judgment debtor or the judgment debtor's family would suffer extreme economic hardship as a result of the garnishment, the court may reduce the amount of nonexempt earnings withheld under a continuing lien ordered pursuant to this section from the twenty-five percent to not less than fifteen percent.

G. A court order entered pursuant to this section if recorded does not constitute a lien against real property pursuant to section 33-961.

H. The court, sitting without a jury, shall decide all issues of fact and law.

§ 12-1598.10 (Version 2) Continuing lien on earnings; order

(2022 Prop. 209; Caution: 1998 Prop. 105 applies)

A. If it appears from the answer of the garnishee that the judgment debtor was an employee of the garnishee, or that the garnishee otherwise owed earnings to the judgment debtor when the writ was served, or earnings would be owed within sixty days thereafter and there is no timely written objection to the writ or the answer of the garnishee filed, on application by the judgment creditor the court shall order that the nonexempt earnings, if any, withheld by the garnishee after service of the writ be transferred to the judgment creditor who is entitled to such monies subject to the judgment debtor's right to objection and hearing pursuant to this article. The court shall further order that the garnishment is a continuing lien against the nonexempt earnings of the judgment debtor.

B. If a timely objection is filed the court shall conduct a hearing pursuant to section 12-1598.07 and shall make the following determinations:

1. Whether the writ is valid against the judgment debtor.

2. The amount outstanding on the judgment at the time the writ was served, plus accruing costs.

3. Whether the judgment debtor was employed by the garnishee at the time the writ was served.

4. Whether earnings were owed or would be owed by the garnishee to the judgment debtor within sixty days after the service of the writ.

5. Whether the debt was, at the time of service of the writ, subject to an effective agreement for debt scheduling between the judgment debtor and a qualified debt counseling organization.

C. If the court makes an affirmative determination under subsection B, paragraph 1 of this section and subsection B, paragraph 3 or 4 of this section and determines that the debt was not, at the time of service of the writ, subject to an effective agreement between the judgment debtor and a qualified debt counseling organization, the court shall order that the nonexempt earnings, if any, withheld by the garnishee after service of the writ be transferred to the judgment creditor and further order that the garnishment is a continuing lien against the nonexempt earnings of the judgment debtor. Otherwise the court shall order the garnishee discharged from the writ.

D. A continuing lien ordered pursuant to this section is invalid and of no force and effect on the occurrence of any of the following conditions:

1. The underlying judgment is satisfied in full, is vacated or expires.

2. The judgment debtor leaves the garnishee's employ for more than sixty days or, if the judgment debtor is an employee of a school district, a charter school, the Arizona state schools for the deaf and the blind or an accommodation school and the judgment debtor is subject to an employment contract that specifies that paydays are restricted to the school year, for more than ninety days.

3. The judgment creditor releases the garnishment.

4. The proceedings are stayed by a court of competent jurisdiction, including the United States bankruptcy court.

5. The judgment debtor has not earned any nonexempt earnings for at least sixty days or, if the judgment debtor is an employee of a school district, a charter school, the Arizona state schools for the deaf and the blind or an accommodation school and the judgment debtor is subject to an employment contract that specifies that paydays are restricted to the school year, for at least ninety days.

6. The court orders that the garnishment be quashed.

E. If no objections are filed to the answer of the garnishee and an order of continuing lien is not entered within forty-five days after the filing of the answer of the garnishee, any earnings held by the garnishee shall be released to the judgment debtor and the garnishee shall be discharged from any liability on the garnishment.

F. If at the hearing the court determines that the judgment debtor is subject to the ten percent maximum disposable earnings provision under section 33-1131, subsection B and based on clear and convincing evidence that the judgment debtor or the judgment debtor's family would suffer extreme economic hardship as a result of the garnishment, the court may reduce the amount of nonexempt earnings withheld under a continuing lien ordered pursuant to this section from the ten percent to not less than five percent.

G. A court order entered pursuant to this section if recorded does not constitute a lien against real property pursuant to section 33-961.

H. The court, sitting without a jury, shall decide all issues of fact and law.

§ 12-1598.11 Continuing lien procedure; nonexempt earnings statement

A. An order of continuing lien on nonexempt earnings entered pursuant to this article requires the garnishee to continue to withhold the nonexempt earnings of the judgment debtor for as long as the continuing lien remains in effect.

B. Beginning with the pay period during which the writ was served, and while the continuing lien remains in effect, for each pay period the garnishee shall do the following:

1. Complete the nonexempt earnings statement.

2. Deliver the nonexempt earnings statement to the judgment debtor with his exempt earnings for that pay period.

3. At the same time deliver a copy of the nonexempt earnings statement to the judgment creditor or his attorney.

C. After the entry of an order of continuing lien pursuant to section 12-1598.10, and for each pay period thereafter, the garnishee shall deliver the nonexempt earnings to the judgment creditor or his attorney, together with the nonexempt earnings statement.

D. Neither the original nor a copy of the nonexempt earnings statement shall be filed with the court unless an objection to the amount withheld, if any, is timely filed by a party.

E. The judgment creditor shall deliver to the garnishee sufficient copies of the appropriate nonexempt earnings statement and request for hearing forms so that the garnishee is able to comply with the requirements of this section, unless the judgment creditor is advised that the garnishee will supply his own forms.

§ 12-1598.12 Reporting by judgment creditor

A. Except as provided in subsection B of this section, as long as the order of continuing lien is in effect the judgment creditor shall issue a report in writing to the garnishee and the judgment debtor within twenty-one days after the end of each calendar quarter.

B. The judgment creditor shall report in writing to the garnishee and judgment debtor within twenty-one days after payment is received from the garnishee reducing the outstanding balance on the judgment to $500 or less and within the first ten days of each calendar month thereafter until the judgment is satisfied.

C. The reports required in subsections A and B of this section shall contain the following:

1. The beginning and ending date of the reporting period for that report. The beginning date of the first reporting period is the date the writ was served.

2. The date and amount of each payment received during the reporting period.

3. The total amount credited to the judgment balance for that reporting period.

4. The interest, attorney fees and costs accrued during that reporting period.

5. The total outstanding balance due on the judgment as of the ending date of the reporting period.

D. It is the obligation of the judgment creditor to take reasonable action to ensure that the garnishee does not withhold more nonexempt earnings of the judgment debtor than are necessary to satisfy the underlying judgment. Reasonable action includes at least written notice directed to the garnishee or the garnishee's authorized representative if the balance due on the judgment is less than double the amount of nonexempt earnings received in the preceding two pay periods. The judgment creditor shall instruct the garnishee to cease withholding earnings after the full amount of the judgment has been paid to the judgment creditor or when the judgment creditor has been notified that sufficient monies have been withheld to satisfy the underlying judgment.

E. Immediately after the underlying judgment is satisfied or expires, the judgment creditor shall file with the clerk of the court a satisfaction or release of the writ and shall deliver a copy of that satisfaction or release to the garnishee, the judgment debtor and any creditor who has delivered a written request for such a notice to the judgment creditor or the judgment creditor's attorney.

§ 12-1598.13 Contempt proceedings; default of garnishee

A. If the judgment creditor fails to comply with any duty imposed upon him by this article, the court shall, upon petition of any party to the proceedings affected by such failure and after notice, hold a hearing to determine whether such failure to comply, if any, was occasioned by mistake, inadvertence or excusable neglect. If the court determines that any failure to comply was not the result of mistake, inadvertence or excusable neglect, the court shall find the judgment creditor in contempt and shall award the petitioner all of the following:

1. An amount to compensate for actual losses, if any, caused by the failure to comply.

2. Reasonable attorney fees, if the petitioner was represented by an attorney at such hearing.

3. Court costs.

4. An additional amount of not less than one hundred nor more than one thousand dollars.

B. If a garnishee fails after written notice to deliver nonexempt earnings to the judgment creditor within thirty days after the ending date of the pay period, or fails after written notice to deliver the nonexempt earnings statement to the judgment debtor with the exempt earnings, the judgment debtor may petition the court for relief. The court shall, after notice, hold a hearing to determine if such failure, if any, was wilful or the result of gross negligence. If the court determines that the failure was wilful or the result of gross negligence, the court shall find the garnishee in contempt and shall award the judgment debtor all of the following:

1. An amount to compensate for actual losses, if any, caused by the failure to comply.

2. Reasonable attorney fees, if the judgment debtor was represented by an attorney at such hearing.

3. Court costs. The court may award the judgment debtor an additional amount not to exceed four hundred dollars.

C. While an order of continuing lien pursuant to section 12-1598.10 is in effect, if the garnishee fails to deliver to the judgment creditor the nonexempt earnings of the judgment debtor, if any, and the copy of the nonexempt earnings statement within fourteen days of the end of the pertinent pay period, and the judgment creditor thereafter delivers a written demand for the nonexempt earnings and statement, and the garnishee does not comply within fourteen days of the receipt of the written demand, the judgment creditor may petition the court for relief. The court shall, after notice, hold a hearing to determine whether the failure to comply with the written demand within fourteen days of receipt, if any, was wilful or the result of gross negligence. If the court determines that the failure was wilful or the result of gross negligence, the court shall find the garnishee in contempt and shall award the judgment creditor all of the following:

1. An amount to compensate for actual losses, if any, caused by the failure to comply.

2. Reasonable attorney fees, if the judgment creditor was represented by an attorney at such hearing.

3. Court costs. The court may award the judgment creditor an additional amount not to exceed four hundred dollars.

D. If after conducting a hearing required by subsection A, B or C of this section, the court determines that a petition filed pursuant to subsection A, B or C of this section is without merit, the court may award reasonable attorney fees to any party adversely affected by the petition, if the party adversely affected was represented by an attorney at such hearing.

E. A party may request the court to order the relief set forth in subsection A, B, C or D of this section in the case which is the basis of the garnishment.

F. This section does not restrict a party from pursuing any common law remedies.

G. The garnishee may conclusively rely on and is not liable to the judgment debtor for acting in reliance on the validity and authenticity of a garnishment which is regular on its face.

H. If a garnishee fails to answer within the time specified in the writ, the party for whom the writ has been issued may petition the court for the issuance of an order requiring the garnishee to appear before the court at a time and place specified in the order to answer the writ or to file and serve a copy of the answer on the party for whom the writ has been issued, or on his attorney if the party is represented by counsel, at least five days before the appearance date. If the garnishee fails to appear or file and serve the answer after the service of the order requiring the appearance in person or answer on the garnishee, the court may render judgment by default against the garnishee for the full amount of the judgment against the judgment debtor. The court may award a reasonable attorney's fee to the party for whom the writ was issued and against the garnishee if the writ was not answered within the time specified in the writ and a petition requiring the garnishee to appear or answer was filed as provided in this section.

§ 12-1598.14 Priority

A. Except as provided in subsections B and C, conflicting wage garnishments and levies rank according to priority in time of service.

B. Garnishments, levies and wage assignments which are not for the support of a person are inferior to wage assignments for the support of a person. Garnishments which are not for the support of a person and levies are inferior to garnishments for the support of a person.

C. If a judgment debtor's earnings become subject to more than one writ of garnishment pursuant to this article, and because of the application of the priorities set forth in subsections A and B a judgment creditor recovers no nonexempt earnings for two consecutive paydays, the lien on earnings of such judgment creditor is invalid and of no force and effect, and the garnishee shall notify the judgment creditor accordingly.

§ 12-1598.15 Taxing costs

A. If the garnishee is discharged on the garnishee's answer, the cost of the proceeding, including reasonable compensation to the garnishee, shall be taxed against the judgment creditor.

B. If there is no written objection to the answer of the garnishee and the garnishee is held on the garnishee's answer, the attorney fees that are allowed by section 12-1598.03, paragraph 3 and costs as provided in subsection A of this section shall be taxed against the judgment debtor.

C. If the answer or nonexempt earnings statement is objected to in writing the attorney fees and costs shall abide the issue.

D. If no objection is filed to the answer of the garnishee, the costs provided in subsections A and B of this section shall not exceed $50 excluding costs of service and the cost of issuance of the writ.

E. While a continuing lien is in effect the garnishee may deduct from the nonexempt earnings of the judgment debtor the amount of $5 each pay period as a fee for preparing and delivering the nonexempt earnings statement. If there were not sufficient nonexempt earnings to collect this fee, and an amount arising from this fee remains owing when the writ becomes invalid or is released, the amount is chargeable against the judgment creditor and not the judgment debtor.

§ 12-1598.16 Forms

A. The court, justice of the peace or city or town magistrate shall provide to the parties, at no charge, copies of the following documents:

1. The initial notice to judgment debtor and request for hearing form required to be delivered pursuant to section 12-1598.04.

2. The notice to judgment debtor and request for hearing form required to be delivered pursuant to section 12-1598.08.

3. The answer form required to be delivered pursuant to sections 12-1598.04 and 12-1598.08.

4. The instructions to garnishee required to be delivered pursuant to section 12-1598.04.

5. The nonexempt earnings statement required to be delivered pursuant to section 12-1598.11.

B. The initial notice to judgment debtor and request for hearing form shall be in a form prescribed by the supreme court and shall contain at a minimum the following:

1. An explanation of the judgment debtor's rights and responsibilities relating to the garnishment procedure, including information concerning:

(a) Exemption rights.

(b) Grounds for objecting to the writ.

(c) The objection and hearing procedures.

2. A form on which the judgment debtor may request a hearing.

C. The initial notice to judgment debtor and request for hearing form prescribed by the supreme court shall be in substantially the following form:

Initial notice to judgment debtor

To collect his judgment against you the judgment creditor has asked this court to issue a writ of garnishment (see copy of writ attached). Information about the judgment and the name and address of the judgment creditor and garnishee are stated in the writ and the copy of the judgment, which is attached.

The writ of garnishment is a court order requiring the garnishee to withhold a certain amount from your earnings and to continue to withhold a portion of your earnings until the judgment is satisfied or the writ is quashed by the court or released by the judgment creditor.

The law provides that a certain amount of each paycheck or other earnings is exempt from collection by a writ of garnishment. In some cases of very low income no amount can be garnished except for an order for support of a person. Different exemption rights may apply to the collection of taxes.

Within ten days after the date the garnishee was served with the writ of garnishment, he is required to deliver to you the following documents:

1. Answer of garnishee.

2. Notice to judgment debtor, which explains your rights and the procedures in the garnishment process.

3. Request for hearing form, which you can use to request a hearing if you believe that the amount withheld from your earnings is greater than the law allows or that the garnishment is invalid.

On each normal payday you should receive some earnings (paycheck) for the amount the garnishee calculates is protected by law. That calculation is made on a nonexempt earnings statement, a copy of which should accompany your paycheck. If the judgment creditor's debt is subject to an effective agreement for debt scheduling between you and a qualified debt counseling organization and if you do not receive a paycheck, or if a copy of the nonexempt earnings statement does not accompany your paycheck, you may request a hearing.

To request a hearing for the reasons described above, fill out the attached request for hearing form and deliver it to this court's clerk's office. At the same time you must deliver a copy (photocopy or handwritten) of the request for hearing to the garnishee and to the judgment creditor, or his attorney, at the address stated on the writ of garnishment.

You will also be given an opportunity to request a hearing after you receive the answer of garnishee. A request for hearing can be made no later than ten days after you receive the answer of garnishee, unless good cause is shown why the request was filed later.

If you request a hearing, the court or justice of the peace will set the hearing within ten days of the date you submitted your request for hearing, and the court will notify you, the judgment creditor and the garnishee of the date, time and place of the hearing.

Request for hearing

I request a hearing because:

_____ On my normal payday I received no earnings (paycheck).

_____ A copy of the nonexempt earnings statement did not accompany my paycheck.

_____ The judgment creditor does not have a valid judgment against me or that judgment has been paid in full.

_____ My employer has not delivered to me the notice to judgment debtor answer of garnishee (employer) and request for hearing forms within fifteen days.

_____ The debt of the judgment creditor is subject to an effective agreement for debt scheduling between me and a qualified debt counseling organization.

Dated: ___________________________________

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Name (print)

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Signature

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Address

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City, state, zip code

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Telephone number

D. At the top of the first page of the initial notice to judgment debtor described in subsections C and E of this section a Spanish translation shall be printed of the language below:

The court has issued an order for your employer to take part of your salary and pay your creditor until the judgment against you is paid off. According to the law, your creditor has a right to only part of your salary. Below there is an explanation of your rights. A written Spanish translation of the notice below can be obtained at the court.

E. The notice to judgment debtor and request for hearing form shall be in a form prescribed by the supreme court and shall contain at a minimum the following:

1. An explanation of the judgment debtor's rights and responsibilities relating to the garnishment procedure, including information concerning:

(a) Exemption rights.

(b) Grounds for objecting to the writ.

(c) The objection and hearing procedures.

2. A form on which the judgment debtor may request a hearing.

F. The notice to judgment debtor and request for hearing form prescribed by the supreme court shall be in substantially the following form:

Notice to judgment debtor

This is your second notice that a writ of garnishment has been issued in this case. The writ is a court order requiring the garnishee to withhold a certain amount from your earnings and to continue to withhold a portion of your earnings until the judgment is satisfied or the writ is quashed.

The law provides that a certain amount of each paycheck or other periodic earnings is exempt from collection by a writ of garnishment. In some cases of very low income no amount can be garnished except for an order for support of a person.

If you believe that too much of your earnings have been withheld from your paycheck or that no amount should be withheld you may request a hearing before this court. Among the reasons for requesting a hearing are:

1. The judgment creditor does not have a valid judgment against you or the judgment has been paid in full.

2. The garnishee's answer is incorrect.

3. Your earnings are already subject to a writ of garnishment or are subject to a court ordered assignment for payment of support.

4. The judgment creditor's debt is subject to an effective agreement for debt scheduling between you and a qualified debt counseling organization.

To request a hearing, deliver the request for hearing form appearing below, or a substantially similar form, to the clerk of this court or the justice of the peace. You must mail or deliver a copy of the request for hearing to the garnishee and to the judgment creditor or his attorney at the address on the writ of garnishment.

If you do not deliver the request for hearing form to this court within ten days after the date you receive this notice and the answer of the garnishee, your request for hearing will be denied, unless good cause for the delay is shown. You must check a box or state your reasons for disputing the claim in the space provided on the form.

If you request a hearing, it will be conducted no later than ten days after your request is received by the court. The court will send you notice of the date, time and place.

The nonexempt portion of your earnings will continue to be withheld by the garnishee and delivered to the judgment creditor until the judgment is paid in full, or the garnishment is ordered to stop. Whether or not you request a hearing at this time, if you believe too much money is withheld from your earnings pursuant to this garnishment at some time in the future, you will have the same opportunity to request a hearing at that time.

Request for hearing

I request a hearing because:

_____ The judgment creditor does not have a valid judgment against me.

_____ The judgment has been paid in full.

_____ The garnishee's answer is incorrect.

_____ My earnings are already subject to a writ of garnishment or court ordered assignment for payment of support.

_____ Other: ___________________________________________________________.

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Name (print)

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Signature

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Address

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City, state, zip code

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Telephone number

Warning: You waive your right to a hearing on the monies withheld in this pay period unless you file this request for hearing within ten days after receiving the garnishee's answer or show good cause for filing the request late.

G. The answer form shall be in a form prescribed by the supreme court and shall require at a minimum that the answer of the garnishee set forth those items required to be set forth pursuant to section 12-1598.08, subsection B.

H. The instructions to garnishee shall be in a form prescribed by the supreme court and shall contain at a minimum:

1. An explanation of the garnishee's responsibilities relating to the garnishment procedure, including instructions for the proper completion of the required forms and statements.

2. A notice to the garnishee concerning the provisions of section 12-1598.13.

I. The nonexempt earnings statement shall be in a form prescribed by the supreme court and shall contain at a minimum:

1. A formula for the calculation of the nonexempt earnings of a judgment debtor, pursuant to applicable state and federal law.

2. A form on which the judgment debtor may request a hearing.

J. The nonexempt earnings statement shall be in a form prescribed by the supreme court, and for an underlying judgment that is not based on an order for support of a person shall be in substantially the following form:

Nonexempt earnings statement

(Judgment not for support)

Pay period __________________ to ____________________

(beginning date) (ending date)

(answer all pertinent questions)

| 1. The judgment debtor | yes no | | --- | --- | | is an employee or is otherwise owed earnings. If the answer is "no", give the judgment debtor's last date of employment by your firm or the last date for which earnings are owed. | 1. __________________ (date) | | 2. For the earnings of the judgment debtor for this pay period enter all of the following: | | | (a) Gross earnings. | 2.(a) _______________ | | (b) Disposable earnings (gross earnings minus deductions required by law). | 2.(b) _______________ | | (c) Enter twenty-five per cent of line 2(b). | 2.(c) _______________ | | 3. The current federal minimum wage is $_____ per hour. Enter one of the following using an appropriate pay period: weekly (thirty times minimum wage), biweekly (sixty times minimum wage), semimonthly (sixty-five times minimum wage), monthly (one hundred thirty times minimum wage). | 3. __________________ | | 4. Subtract line 3 from line 2(b) and enter. | 4. __________________ | | 5. Enter line 2(c) or line 4, whichever is smaller. | 5. __________________ | | 6. Enter the amount withheld from the judgment debtor's earnings because of a court ordered assignment for support of a person or a garnishment or levy for the collection of taxes. | 6. __________________ | | 7. Subtract line 6 from line 5 and enter here. This is the amount of nonexempt earnings you are to withhold and forward to the judgment creditor with this statement. | 7. __________________ |

Dated: _____________________________

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Garnishee's name

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Address

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City, state, zip code

Request for hearing

If you believe that the amount of your nonexempt earnings has been incorrectly calculated for this pay period or that no amount should be withheld because the garnishment or underlying judgment is invalid, satisfied or superseded, you may request a hearing within ten days after receiving the attached nonexempt earnings statement by completing the form below and delivering the request for hearing to the court or justice of the peace. You must deliver a copy of your request for hearing to the judgment creditor and the garnishee.

The court will notify you and the other parties of the date and time for the hearing. A hearing will be set within ten days of your request.

I request a hearing for the following reason:

_____ The nonexempt earnings statement is incorrectly filled out.

_____ Other: ___________________________________________________________.

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Name (print)

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Signature

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Address

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City, state, zip code

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Telephone number

K. The nonexempt earnings statement prescribed by the supreme court for an underlying judgment that is based on an order for support of a person shall be in substantially the following form:

Nonexempt earnings statement

(Judgment for support)

Pay period __________________ to ____________________

(beginning date) (ending date)

(answer all pertinent questions)

| 1. The judgment debtor | yes no | | --- | --- | | is an employee or is otherwise owed earnings. If the answer is "no", give the judgment debtor's last date of employment by your firm or the last date for which earnings were owed. | 1. __________________ (date) | | 2. For the earnings of the judgment debtor for this pay period enter all of the following: (a) Gross earnings. | 2.(a) _______________ | | (b) Disposable earnings (gross earnings minus deductions required by law). | 2.(b) _______________ | | (c) Enter fifty per cent of line 2(b). | 2.(c) _______________ | | 3. Enter the amount withheld from the judgment debtor's earnings because of a court ordered assignment for the support of a person or a garnishment or levy for the collection of taxes. | 3. __________________ | | 4. Subtract line 3 from line 2(c) and enter here. This is the amount of nonexempt earnings you are to withhold and forward to the judgment creditor with this statement. | 4. __________________ |

Dated: _____________________________

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Garnishee's name (print)

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Address

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City, state, zip code

Request for hearing

If you believe that the amount of your nonexempt earnings has been incorrectly calculated for this pay period or that no amount should be withheld because the garnishment or underlying judgment is invalid, satisfied or superseded, you may request a hearing within ten days after receiving the attached nonexempt earnings statement by completing the form below and delivering the request for hearing to the court or justice of the peace. Deliver a copy of your request for hearing to the judgment creditor and the garnishee.

The court will notify you and the other parties of the date and time for the hearing. A hearing will be set within ten days after your request.

I request a hearing for the following reason:

_____ The nonexempt earnings statement is incorrectly filled out.

_____ Other: ___________________________________________________________.

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Name (print)

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Signature

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Address

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City, state, zip code

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Telephone number

L. The nonexempt earnings statement prescribed by the supreme court for an underlying judgment that is based on a judgment for collection of taxes shall be in substantially the following form:

Nonexempt earnings statement

(Judgment for collection of taxes)

Pay period __________________ to ____________________

(beginning date) (ending date)

(answer all pertinent questions)

| 1. The judgment debtor | yes no | | --- | --- | | is an employee or is otherwise owed earnings. If the answer is "no", give the judgment debtor's last date of employment by your firm or the last date for which earnings were owed. | 1. __________________ (date) | | 2. For the earnings of the judgment debtor for this pay period enter all of the following: (a) Gross earnings. | 2.(a) _______________ | | (b) Deductions required by law. | 2.(b) _______________ | | (c) Net disposable income subtract line (b) from line (a). | 2.(c) _______________ | | (d) Enter amounts withheld pursuant to a garnishment or court ordered assignment for collection of support of a person. | 2.(d) _______________ | | (e) Enter amounts withheld pursuant to a garnishment or levy served before this garnishment that was not for support of a person. | 2.(e) _______________ | | (f) Add lines (d) and (e). | 2.(f) _______________ | | (g) Subtract line (f) from line (c). This is the amount you are to withhold and forward to the judgment creditor with this statement. | 2.(g) _______________ |

Dated: _____________________________

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Garnishee's name (print)

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Address

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City, state, zip code

Request for hearing

If you believe that the amount of your nonexempt earnings has been incorrectly calculated for this pay period or that no amount should be withheld because the garnishment or underlying judgment is invalid, satisfied or superseded, you may request a hearing within ten days after receiving the attached nonexempt earnings statement by completing the form below and delivering the request for hearing to the court or justice of the peace. Deliver a copy of your request for hearing to the judgment creditor and the garnishee.

The court will notify you and the other parties of the date and time for the hearing. A hearing will be set within ten days after your request.

I request a hearing for the following reason:

_____ The nonexempt earnings statement is incorrectly filled out.

_____ Other: __________________________________________________________.

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Name (print)

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Signature

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Address

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City, state, zip code

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Telephone number

M. A party to a garnishment proceeding may use documents other than those provided pursuant to subsection A of this section, provided that such documents are substantially similar to those prescribed by the supreme court pursuant to this section.

§ 12-1598.17 Mailing; receipt; presumptions

A. For the purposes of this article, it is presumed that a document has been received five days after it is mailed as provided in section 12-1598, paragraph 2, subdivision (b).

B. For the purposes of this article, if a party to the garnishment action mails a document to the address contained in the writ or to the most recent address contained in the party's records, it is presumed that the party has complied with the good faith requirement of section 12-1598, paragraph 2, subdivision (b).

C. For the purposes of this article, delivery as defined by section 12-1598, paragraph 2, subdivision (b) shall not be deemed service by mail.

Article 5 Garnishment of Salaries and Wages of Public Officers and Employees

§ 12-1601 Salaries subject to garnishment

The salaries of officers, deputies, clerks and employees of the state or its political subdivisions shall be subject to garnishment as provided in this article, and such garnishment shall not be construed as against public policy.

§ 12-1602 Service of writ and answer

A. For state employees who are not employees of a state university, the writ of garnishment shall be served upon the assistant director for finance in the department of administration in garnishment of state salaries or wages. For state employees who are employed by a university the writ of garnishment shall be served upon the chief disbursing officer of the appropriate state university in garnishment of state salaries or wages paid by the university.

B. For employees of counties in this state, the writ of garnishment shall be served on the clerk of the board of supervisors in garnishment of county salaries or wages. For employees of all other political subdivisions of the state, the writ of garnishment shall be served upon a designated chief disbursing officer of the political subdivision in garnishment of salaries or wages paid by such political subdivisions.

C. If the state is named as garnishee, the attorney general shall answer the writ. If a county or other political subdivision is named as garnishee, its legal representative shall answer the writ.

§ 12-1603 Procedure

The procedure relating generally to garnishment including the time to answer is applicable to garnishments pursuant to section 12-1601, except that no default judgment as provided in section 12-1583 may be entered against the state.

§ 12-1604 Liability of officer for failure to perform duties

An officer whose duties are prescribed in this article shall be liable on his official bond to a party aggrieved for failure to perform the duties prescribed by this article.

Article 6 Renewal of Judgment

§ 12-1611 Renewal by action

A judgment may be renewed by action thereon at any time within ten years after the date of the judgment, except that an action may not be brought to renew a judgment entered on or before August 2, 2013 that was not renewed on or before August 2, 2018.

§ 12-1612 Renewal by affidavit

A. A judgment for the payment of money that has been entered and docketed in the civil docket or civil order book of the United States district court or superior court, whether originally rendered by it or entered on a transcript of judgment from another court, or recorded with the county recorder, may be renewed by filing an affidavit for renewal with the clerk of the proper court, except that an affidavit for renewal may not be filed to renew a judgment entered on or before August 2, 2013 unless that judgment was renewed on or before August 2, 2018.

B. The judgment creditor or the judgment creditor's personal representative or assignee, within ninety days preceding the expiration of ten years from the date of entry of such judgment, may make and file an affidavit, known as a renewal affidavit, entitled as in the action setting forth:

1. The names of the parties, the name of the court in which docketed, if recorded the name of the county in which recorded, the date and amount of the judgment, if recorded, the number and page of the book in which recorded by the county recorder, the name of the owner of the judgment, and the owner's source and succession of title, if not the judgment creditor.

2. That no execution is anywhere outstanding and unreturned on the judgment, or if any execution is outstanding, that fact shall be stated.

3. The date and amount of all payments on the judgment and that all payments have been duly credited on the judgment.

4. That there are no setoffs or counterclaims in favor of the judgment debtor, and if a counterclaim or setoff does exist in favor of the judgment debtor, the amount thereof, if certain, or, if the counterclaim or setoff is unsettled or undetermined, a statement that when it is settled or determined by action or otherwise, it may be allowed as a payment or credit on the judgment.

5. The exact amount due on the judgment after allowing all setoffs and counterclaims known to affiant, and other facts or circumstances necessary to a complete disclosure as to the exact condition of the judgment.

C. If the judgment was docketed by the clerk of the court on a certified copy from any other court and subsequently an abstract recorded with the county recorder, the affidavit, in addition to the foregoing, shall set forth a statement of each county in which such transcript has been docketed and abstract recorded. The affidavit shall be verified positively by the person making it, and not on information and belief.

D. The filing of the affidavit in the office of the clerk of the court where the judgment is entered and docketed shall renew and revive the judgment to the extent of the balance shown due in the affidavit. An order of the court, or other action by a judge, is not necessary to complete the renewal.

E. Additional and successive renewal affidavits as provided for in subsection B of this section may be made and filed within ninety days of expiration of ten years from the date of the filing of a prior renewal affidavit.

F. Recorded judgments that have been timely renewed by a renewal affidavit and successive affidavits, even if such successive affidavits were not authorized by prior law, may be renewed as provided in this section if the prior renewal affidavits were filed within ninety days from the expiration of each successive ten year period.

§ 12-1613 Docketing and recording affidavit of renewal; effect

A. The clerk shall docket the affidavit of renewal in the proper docket and shall enter in the proper docket forthwith, after the statement of the original judgment, the date and fact of the renewal, and the amount for which the judgment is renewed.

B. The entry and docketing of the affidavit by the clerk shall renew the judgment for a period of ten years from the time of docketing. An order of the court, or other action by a judge, is not necessary to complete the renewal.

C. No lien on or against the real property of the judgment debtor shall be continued by an affidavit of renewal until a copy of the affidavit, certified by the clerk of the court, is recorded in the office of the county recorder.

D. From and after recordation of the copy of the affidavit of renewal, certified by the clerk of the court, the judgment shall be a lien to the extent of the balance shown in the affidavit of renewal against all real property of the judgment debtor, except such as is exempt from execution, including interest in the homestead, for a period of ten years from the date of docketing the affidavit of renewal with the clerk.

E. A copy of the renewal affidavit and of the docket entries thereon, certified by the clerk of the court wherein they are filed, may be docketed in any other county of the state in which a transcript of the original judgment was filed, and a copy of the renewal affidavit may be recorded with the county recorder of any county wherein the original judgment has been previously filed or docketed or wherein the judgment creditor desires the judgment to become a lien on real property of the judgment debtor.

Article 7 Sales Under Execution

§ 12-1621 Notice of sale; perishable, personal and real property; posting, publication and place of sale

A. Notice of sale under execution shall be made as follows:

1. For the sale of perishable personal property, written notice of the time and place of sale shall be posted in three public places, two of which shall be in the precinct and one at or near the door of the courthouse of the county in which the sale is to take place, for such period of time before the sale as is reasonable, considering the character and condition of the property.

2. For the sale of personal property other than that which is perishable, a posting similar to that provided in paragraph 1 of this subsection shall be made for not less than ten days successively before the day of sale.

3. For the sale of real property, notice shall be given by posting notices for not less than fifteen days successively before the day of sale in three public places in the county, one of which shall be at or near the courthouse door, and publishing a copy thereof in a newspaper for three weeks before the day of sale.

B. The notices shall note the judgment, parties, amount and court in which the judgment was rendered, and particularly describe the property to be sold, and, for real property to be sold, shall include the legal description of the property and the street address if any, or identifiable location of the property. Failure to accurately describe within any such notice either the street address or the identifiable location of the real property to be sold shall not be grounds for invalidating any such sale if the correct legal description of the real property to be sold was noted. A notice for sale of real property required by subsection A, paragraph 3 shall include a notice in substantially the following form:

Notice to Judgment Debtor

Title 33, chapter 8, article 1 of the Arizona Revised Statutes, may permit you to protect your residence from certain types of legal process through the homestead exemption.

If you are in doubt as to your rights, you should obtain legal advice.

C. Real property shall be sold at or near the courthouse door of the county where the property is situated. Personal property shall be sold on the premises where it is taken in execution, at the courthouse door of the county or at some other place more convenient for exhibiting the property to purchasers if necessitated by the nature of the property.

§ 12-1622 Procedure in selling property under execution

A. All sales under execution shall be made at public auction to the highest bidder, between the hours of ten a.m. and four p.m.

B. After sufficient property has been sold to satisfy the judgment and costs, no more shall be sold.

C. No person making the sale shall become a purchaser or be interested in such sales.

D. When the sale is of personal property capable of immediate delivery, the property shall be within view and shall be sold in parcels so as to bring the highest price and the judgment debtor or creditor may direct the selling officer in such cases.

E. Partnership interests and interests in personal property without right to exclusive possession may be sold without the presence or the delivery of the property.

F. When the sale is of property too bulky to be taken into immediate possession, or of livestock running at large on a range, it is not necessary that such property or any part thereof be present at the place of sale, and the purchaser at the sale may take the property or gather and pen the stock and select therefrom the number purchased by him.

G. When the sale is of real property, consisting of lands that may be sold in parcels, it may be sold separately at direction of the judgment debtor, who shall have the option of designating the order in which parcels shall be sold.

H. When property is held in common, the interest of the judgment debtor shall be sold as a whole.

I. Shares of stock in a corporation may be sold as other personal property capable of manual delivery is sold subject to the provisions of section 47-8113.

§ 12-1623 Postponement of sale

The officer may postpone the sale from time to time by continuing the posting and publication of the notice until the day to which the sale is postponed, and appending at the foot thereof upon each successive postponement the following:

"The above sale is postponed until the _________________ day of ______, 19, at ________ o'clock ____ m. ______________________ (name and official title)."

§ 12-1624 Liability of bidder for failure to pay; resale and recovery of loss and costs

If the purchaser at the sale under execution does not pay the full bid price and statutory fees within five working days after the sale, the officer shall immediately offer the property to the second highest bidder who may, at his option, purchase the property at his bid. If the second highest bidder does not pay the full bid price, as bid by that bidder, and statutory fees within five working days after the property has been offered to him by the officer, or if there is no second bidder, the property may be resold by a new execution sale. If the second highest bidder elects not to purchase the property, or if there is no second bidder, the original purchaser shall be liable to any person who suffers loss or expenses, including attorney's fees, occasioned by his failure to pay the bid price. The five day deadline set forth herein may be extended if agreed upon in writing by the officer conducting the sale.

§ 12-1625 Delivery of property and certificate of sale

When the purchaser of personal property capable of manual delivery pays the purchase money, the officer shall deliver the property and if desired, execute and deliver to the purchaser a certificate of sale. If personal property not capable of manual delivery or which may be sold without the presence or delivery of the property, the officer making the sale shall execute and deliver to the purchaser a certificate of sale. The certificates convey to the purchaser all the right which the debtor had in the property on the day the levy was made.

§ 12-1626 Sale of real property and rights of purchaser; delivery and recording of certificate of sale

A. Upon a sale of real property, the purchaser is substituted to and acquires all the right, title, interest and claim of the judgment debtor thereto.

B. When the estate is less than a leasehold of two years unexpired time, the sale is absolute. In all other cases, including sales under order of court in foreclosure suits, the property is subject to redemption.

C. The officer shall give to the purchaser a certificate of sale, setting forth a full description of the real property sold, the price bid and paid for each parcel if sold in lots or parcels and whether subject to redemption or not.

D. A duplicate of the certificate shall be recorded by the officer in the office of the county recorder.

Article 8 Supplemental Proceedings

§ 12-1631 Order for appearance of debtor; limitation

A. When a judgment has been entered and docketed, the judgment creditor, at any time may:

1. Have an order from the court requiring the judgment debtor to appear and answer concerning his property before the court or a referee, at a time and place specified in the order.

2. Have a subpoena issued compelling the judgment debtor to appear for deposition upon oral examination and answer concerning his property at a time and place specified in the subpoena.

B. No judgment debtor shall be required to attend out of the county in which he resides.

§ 12-1632 Disclosure of property; execution

A. After issuing an execution and upon proof by affidavit or otherwise, if it appears to the court that a judgment debtor has property which he unjustly refuses to apply toward satisfaction of the judgment, the court may order the judgment debtor to appear at a specified time and place before the court or a referee, to answer concerning the failure to apply such property to satisfy the judgment.

B. Such proceedings may thereupon be had for application of the property of the judgment debtor toward satisfaction of the judgment as are provided upon return of an execution.

§ 12-1633 Payment to officer by third party; discharge; citation to third party

A. After issuance of an execution, any person indebted to the judgment debtor may pay to the officer holding the writ the amount of his debt or so much thereof as is necessary to satisfy the execution. The officer's receipt shall be a sufficient discharge for the amount so paid.

B. If it appears to the court, by affidavit or otherwise, that any person has property of the judgment debtor or is indebted to him in an amount exceeding fifty dollars, the court may order such person to appear at a specified time and place, before it or a referee, and answer concerning such indebtedness.

§ 12-1634 Attendance of witnesses; application of property toward satisfaction of judgment

A. Witnesses may be required to appear and testify before the court or referee upon any proceeding under this article as upon trial of an action.

B. The court may order any property of the judgment debtor not exempt from execution, in the hands of any person or due the judgment debtor, to be applied toward satisfaction of the judgment.

§ 12-1635 Action by judgment creditors

A. If it appears that a person alleged to have property of the judgment debtor or to be indebted to him claims an interest in the property adverse to the judgment debtor or denies the debt, the court may order the judgment creditor to institute an action for recovery of such interest or debt and forbid any disposition of the interest or debt until an action can be commenced and prosecuted to judgment.

B. The execution creditors may also proceed against defendant therein and other parties, by original complaint, to obtain satisfaction of their executions after they have been returned unsatisfied in whole or in part.

Article 9 Suretyship

§ 12-1641 Action by creditor; failure to bring action and effect

Any person bound as surety upon a contract for payment of money or performance of an act, when the right of action has accrued, may require, by notice in writing, the creditor or obligee forthwith to bring an action upon the contract. If the creditor or obligee, not being under legal disability, fails to bring the action within sixty days after receiving the notice, and prosecute it to judgment and execution, the surety giving the notice shall be discharged from all liability thereon.

§ 12-1642 Determination of issue between principal and surety; finding for surety and order of levy

A. When an action is brought against two or more defendants upon a contract, and one or more of the defendants are surety for the others, the surety may cause the issue of suretyship between the defendants to be tried and determined at any time before the trial, but such proceedings shall not delay the action of the plaintiff.

B. If the issue is determined in favor of the surety, the court shall order the sheriff to levy the execution first upon the property of the principal which is subject to execution and situate in the county in which the judgment was rendered before a levy is made upon the property of the surety, if enough property of the principal is found as in the opinion of the sheriff or constable is sufficient to make the amount of the execution, otherwise the levy shall be made on so much property of the principal as is found, if any, and upon so much of the property of the surety as is necessary to make the amount of the execution. The clerk shall make a memorandum of such order on the execution.

§ 12-1643 Subrogation of surety to rights of judgment creditor; execution against debtor

A. When a person who is surety on an undertaking is compelled to pay a judgment or part thereof, or makes a payment upon a judgment by reason of suretyship, such judgment shall not be discharged by such payment but shall remain in force for the use of the surety and shall be considered as assigned to the surety together with all rights of the creditor thereunder to the extent of the payment made by the surety, and interest thereon.

B. The surety may have execution issued on the judgment in the name of the creditor for use of such surety against the principal debtor for the full amount of the payment, interest thereon, and all costs.

C. The execution shall be issued upon the application of the surety to the clerk or court, and shall be levied, collected and returned as in other cases.

§ 12-1644 Issuance of execution for repayment and contribution

If there is more than one surety and one or more of them has failed to pay his proportionate part of the judgment, execution may issue, as provided in section 12-1643, against the principal for the use of the surety who has paid more than his proportionate part for the whole amount paid by him, and interest thereon, and also against his cosureties for their proportionate parts of the excess paid by him, and interest thereon.

§ 12-1645 Issuance of execution against principal by officer paying judgment

If a sheriff or other officer is compelled to pay a judgment or a part thereof by reason of a default of such officer, except for failing to pay over any money collected or for wasting property levied on, the sheriff or other officer may have execution therefor against the principal defendant in such judgment as provided in the case of a surety.

§ 12-1646 Extension of remedy

The remedy provided in this article for sureties extends to endorsers, guarantors, drawers of bills which have been accepted, and every other suretyship, whether created by express contract or operation of law.

Article 11 Revised Uniform Enforcement of Foreign Judgments Act

§ 12-1701 Definition

In this article, unless the context otherwise requires: "Foreign judgment" means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.

§ 12-1702 Filing and status of foreign judgments

A copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this state may be filed in the office of the clerk of any superior court of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the superior court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a superior court of this state and may be enforced or satisfied in like manner.

§ 12-1703 Notice of filing

A. At the time of the filing of the foreign judgment, the judgment creditor or the judgment creditor's lawyer shall make and file with the clerk of the superior court an affidavit setting forth the name and last known post office address of the judgment debtor, and the judgment creditor.

B. Promptly upon the filing of the foreign judgment and the affidavit, the judgment creditor shall mail notice of the filing of the foreign judgment and a copy of the foreign judgment to the judgment debtor at the address given and shall file proof of mailing with the clerk. The notice shall include the name and post office address of the judgment creditor and the judgment creditor's attorney, if any, in this state.

§ 12-1704 Stay of enforcement of judgment

A. If the judgment debtor shows the superior court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered.

B. If the judgment debtor shows the superior court any ground upon which enforcement of a judgment of any superior court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state.

C. No execution or other process for enforcement of a foreign judgment filed under section 12-1702 shall issue until twenty days after the date the judgment creditor mails the notice of filing of the foreign judgment and files proof of mailing with the clerk as required under section 12-1703.

§ 12-1705 Filing fees

Any person filing a foreign judgment shall pay to the clerk a fee pursuant to section 12-284. Fees for docketing, transcription or other enforcement proceedings shall be as provided for judgments of the superior court.

§ 12-1706 Other rights of enforcement

The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this article remains unimpaired.

§ 12-1707 Uniformity of interpretation

This article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

§ 12-1708 Short title

This article may be cited as the uniform enforcement of foreign judgments act.

Article 12 Monetary Judgment Awards to Prisoners

§ 12-1721 Monetary judgment awarded to prisoners; outstanding restitution and incarceration costs

A. In any civil action, a monetary judgment may not be paid to a person who is or was previously incarcerated in the state department of corrections before all restitution and incarceration costs owed by the person are paid if the monetary judgment is against this state, a political subdivision of this state, any prison, jail or correctional facility or any officer or agent of a prison, jail or correctional facility. If the monetary judgment is not sufficient to pay both restitution and incarceration costs that are owed, the monetary judgment must first be used to pay any outstanding restitution and a portion of any remaining balance may be set off and used to pay outstanding incarceration costs pursuant to section 31-238.

B. If the victim was ordered by the court to receive restitution through the clerk of the superior court, this state, the political subdivision of this state or the prison, jail or correctional facility that was ordered to satisfy the monetary judgment shall transfer enough of the monetary judgment to pay the remaining balance of the restitution order to the clerk of the superior court for distribution to the victim.

C. If money is transferred to a clerk of the superior court pursuant to subsection B of this section, this state, the political subdivision of this state or the prison, jail or correctional facility must also provide the clerk with the following information at the time of the transfer:

1. A copy of the monetary judgment.

2. The defendant's name and the case number of each case where restitution is owed.

3. The name and address of the transferring entity.

Chapter 10 Miscellaneous Special Actions and Proceedings

Article 1 Injunctions

§ 12-1801 Granting of injunctions; grounds

Judges of the superior court may grant writs of injunction:

1. When it appears that the party applying for the writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant.

2. When, pending litigation, it appears that a party is doing some act respecting the subject of litigation, or threatens or is about to do some act, or is procuring or suffering some act to be done, in violation of the rights of the applicant, which would tend to render the judgment ineffectual.

3. In all other cases when applicant is entitled to an injunction under the principles of equity.

§ 12-1802 Prohibition upon granting injunctions for certain purposes

An injunction shall not be granted:

1. To stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless the restraint is necessary to prevent a multiplicity of such proceedings.

2. To stay proceedings in a court of the United States.

3. To stay proceedings in another state upon a judgment of a court of that state.

4. To prevent enforcement of a public statute by officers of the law for the public benefit.

5. To prevent breach of a contract, the performance of which would not be specifically enforced.

6. To prevent the exercise of a public or private office in a lawful manner by the person in possession.

7. To prevent a legislative act by a municipal corporation.

§ 12-1803 Times at which injunction may be granted; verified complaint required; service of copy of complaint or affidavits

A. An injunction may be granted at the time of commencing the action upon the complaint, and at any time afterward before judgment upon affidavits. The complaint or the affidavits shall set forth sufficient grounds therefor.

B. An injunction shall not be granted on the complaint unless it is verified by the oath of the plaintiff that he has read the complaint, or heard the complaint read, knows the contents thereof, and that it is true of his own knowledge, except the matters stated therein on information and belief, and that as to those matters, he believes the complaint to be true.

C. A copy of the complaint, or, when granted upon affidavit, a copy of the affidavit, shall be served with the injunction.

§ 12-1804 Notice of hearing on injunction; service upon adverse party

The notice, together with a copy of the complaint or affidavits upon which the application is based, shall be served upon the parties sought to be enjoined.

§ 12-1805 Limitations on injunction to stay judgment or proceedings at law

An injunction shall not be granted to stay any judgment or proceedings at law, except so much of the recovery or cause of action as plaintiff in the complaint shows himself equitably entitled to be relieved against, and so much as will cover the costs.

§ 12-1806 Limitations on injunction to stay execution on judgments

A. An injunction to stay an execution upon a valid and subsisting judgment shall not be granted after expiration of one year from the rendition of the judgment, unless it appears that an application for the injunction has been delayed in consequence of the fraud or false promises of the party recovering the judgment, practiced or made at the time of, or after rendition of the judgment, or unless for some equitable matter or defense arising after rendition of such judgment.

B. If the applicant was absent from the state at the time the judgment was rendered, and was unable to apply for the injunction within the time provided in subsection A, of this section, the injunction may be granted at any time within two years from rendition of the judgment.

§ 12-1807 Preliminary injunction, injunction or temporary restraining order against working lode, placer or mining claim; prohibition; exception

A. An injunction against the working and mining of a lode, placer or mining claim shall not be granted without notice to the opposite party, and, except as provided in subsection B, no preliminary injunction or temporary restraining order shall be issued to prevent the working or mining pending hearing of the application for the injunction.

B. If a person unlawfully enters upon a mineral claim or lease with the intent to explore, hold, work or take minerals from the claim or lease, the owner of the claim or lease may apply to the superior court in the county in which the claim or lease is located for a preliminary injunction or temporary restraining order. Prior to the issuance of a preliminary injunction or temporary restraining order, the court shall determine that the applicant is legally entitled to the claim or lease.

§ 12-1808 Injunction between parties to labor dispute; conditions requisite to issuance; limitations

A. A preliminary injunction or temporary restraining order shall not be granted between employer and employee, or between employees, or between persons employed and persons seeking employment, involving or arising from a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property or to a property right of the party making the application and when there is no adequate remedy at law for the injury. The property or property right shall be described with particularity in the application.

B. The preliminary injunction or temporary restraining order as provided for in subsection A shall not prohibit any person from:

1. Terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do.

2. Attending at or near a house or place where any person resides or works, or carries on business, or happens to be, for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or to abstain from working.

3. Ceasing to patronize or to employ any party to such dispute or from recommending, advising, or persuading others by peaceful means to do so.

4. Paying or giving to or withholding from any person engaged in such dispute any strike benefits or other monies or things of value.

5. Peaceably assembling at any place in a lawful manner and for lawful purposes.

6. Doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto.

§ 12-1809 Injunction against harassment; petition; venue; fees; notices; enforcement; definition

A. A person may file a verified petition with a magistrate, justice of the peace or superior court judge for an injunction prohibiting harassment. If the person is a minor, the parent, legal guardian or person who has legal custody of the minor shall file the petition unless the court determines otherwise. The petition shall name the parent, guardian or custodian as the plaintiff, and the minor is a specifically designated person for the purposes of subsection F of this section. If a person is either temporarily or permanently unable to request an injunction, a third party may request an injunction on behalf of the plaintiff. After the request, the judicial officer shall determine if the third party is an appropriate requesting party for the plaintiff. Notwithstanding the location of the plaintiff or defendant, any court in this state may issue or enforce an injunction against harassment.

B. An injunction against harassment shall not be granted:

1. Unless the party who requests the injunction files a written verified petition for injunction.

2. Against a person who is less than twelve years of age unless the injunction is granted by the juvenile division of the superior court.

3. Against more than one defendant.

C. The petition shall state all of the following:

1. The name of the plaintiff. The plaintiff's address and contact information shall be disclosed to the court for purposes of service and notification. The address and contact information shall not be listed on the petition. Whether or not the court issues an injunction against harassment, the plaintiff's address and contact information shall be maintained in a separate document or automated database and is not subject to release or disclosure by the court or any form of public access except as ordered by the court.

2. The name and address, if known, of the defendant.

3. A specific statement showing events and dates of the acts constituting the alleged harassment.

4. The name of the court in which there was or is any prior or pending proceeding or order concerning the conduct that is sought to be restrained.

5. The relief requested.

D. A fee shall not be charged for filing a petition under this section. Fees for service of process may be deferred or waived under any rule or law applicable to civil actions, except that fees for service of process shall not be charged if the petition arises out of sexual violence as defined in section 23-371. The court shall advise a plaintiff that the plaintiff may be eligible for the deferral or waiver of these fees at the time the plaintiff files a petition. The court shall not require the plaintiff to perform community restitution as a condition of the waiver or deferral of fees for service of process. A law enforcement agency or constable shall not require the advance payment of fees for service of process of injunctions against harassment. If the court does not waive the fees, the serving agency may assess the actual fees against the plaintiff. On request of the plaintiff, an injunction against harassment that is issued by a municipal court may be served by the police agency for that city if the defendant can be served within the city. If the defendant cannot be served within the city, the police agency in the city in which the defendant can be served may serve the injunction. On request of the plaintiff, each injunction against harassment that is issued by a justice of the peace shall be served by the constable for that jurisdiction if the defendant can be served within the jurisdiction. If the defendant cannot be served within that jurisdiction, the constable in the jurisdiction in which the defendant can be served shall serve the injunction. On request of the plaintiff, an injunction against harassment that is issued by a superior court judge or commissioner may be served by the sheriff of the county. If the defendant cannot be served within that jurisdiction, the sheriff in the jurisdiction in which the defendant can be served may serve the order. The court shall provide, without charge, forms for purposes of this section for assisting parties without counsel.

E. The court shall review the petition, any other pleadings on file and any evidence offered by the plaintiff, including any evidence of harassment by electronic contact or communication, to determine whether the injunction requested should issue without a further hearing. Rules 65(a)(1) and 65(e) of the Arizona rules of civil procedure do not apply to injunctions that are requested pursuant to this section. If the court finds reasonable evidence of harassment of the plaintiff by the defendant during the year preceding the filing of the petition or that good cause exists to believe that great or irreparable harm would result to the plaintiff if the injunction is not granted before the defendant or the defendant's attorney can be heard in opposition and the court finds specific facts attesting to the plaintiff's efforts to give notice to the defendant or reasons supporting the plaintiff's claim that notice should not be given, the court shall issue an injunction as provided in subsection F of this section. If the court denies the requested relief, it may schedule a further hearing within ten days with reasonable notice to the defendant. For the purposes of determining the one-year period, any time that the defendant has been incarcerated or out of this state shall not be counted.

F. If the court issues an injunction, the court may do any of the following:

1. Enjoin the defendant from committing a violation of one or more acts of harassment.

2. Restrain the defendant from contacting the plaintiff or other specifically designated persons and from coming near the residence, place of employment or school of the plaintiff or other specifically designated locations or persons.

3. Grant relief necessary for the protection of the alleged victim and other specifically designated persons proper under the circumstances.

G. The court shall not grant a mutual injunction against harassment. If opposing parties separately file verified petitions for an injunction against harassment, the courts after consultation between the judicial officers involved may consolidate the petitions of the opposing parties for hearing. This does not prohibit a court from issuing cross injunctions against harassment.

H. At any time during the period during which the injunction is in effect, the defendant is entitled to one hearing on written request. A fee may not be charged for requesting a hearing. A hearing that is requested by a defendant shall be held within ten days from the date requested unless the court finds compelling reasons to continue the hearing. The hearing shall be held at the earliest possible time. An ex parte injunction that is issued under this section shall state on its face that the defendant is entitled to a hearing on written request and shall include the name and address of the judicial office where the request may be filed. After the hearing, the court may modify, quash or continue the injunction.

I. The injunction shall include the following statement:

Warning

This is an official court order. If you disobey this order, you may be arrested and prosecuted for the crime of interfering with judicial proceedings and any other crime you may have committed in disobeying this order.

J. An injunction that is not served on the defendant within one year after the date that the injunction is issued expires. The injunction is effective on the defendant on service of a copy of the injunction and petition and expires one year after service on the defendant. A modified injunction is effective on service and expires one year after service of the initial injunction and petition.

K. A supplemental information form that is used solely for the purposes of service of process on the defendant and that contains information provided by the plaintiff is confidential.

L. Each affidavit, declaration, acceptance or return of service shall be filed as soon as practicable but not later than seventy-two hours, excluding weekends and holidays, with the clerk of the issuing court or as otherwise required by court rule. This filing shall be completed in person, electronically or by fax.

M. The supreme court shall maintain a central repository for injunctions. Within twenty-four hours after the affidavit, declaration, acceptance or return of service has been filed, excluding weekends and holidays, the court from which the injunction or any modified injunction was issued shall enter the order and proof of service into the supreme court's central repository for injunctions. The supreme court shall register the injunction with the national crime information center. The effectiveness of an injunction does not depend on its registration, and for enforcement purposes pursuant to section 13-2810, a copy of an injunction, whether or not registered, is presumed to be a valid existing order of the court for a period of one year from the date of service of the injunction on the defendant.

N. A peace officer, with or without a warrant, may arrest a person if the peace officer has probable cause to believe that the person has violated section 13-2810 by disobeying or resisting an injunction that is issued pursuant to this section, whether or not the violation occurred in the presence of the officer. The provisions for release under section 13-3903 do not apply to an arrest made pursuant to this subsection. A person who is arrested pursuant to this subsection may be released from custody in accordance with the Arizona rules of criminal procedure or any other applicable statute. An order for release, with or without an appearance bond, shall include pretrial release conditions that are necessary to provide for the protection of the alleged victim and other specifically designated persons and may provide for additional conditions that the court deems appropriate, including participation in any counseling programs available to the defendant.

O. If a peace officer responds to a call alleging that harassment has been or may be committed, the officer shall inform in writing any alleged or potential victim of the procedures and resources available for the protection of the victim including:

1. An injunction pursuant to this section.

2. The emergency telephone number for the local police agency.

3. Telephone numbers for emergency services in the local community.

P. The remedies provided in this section for enforcement of the orders of the court are in addition to any other civil and criminal remedies available. The municipal court and the justice court may hear and decide all matters arising pursuant to this section. After a hearing with notice to the affected party, the court may enter an order requiring any party to pay the costs of the action, including reasonable attorney fees, if any. An order that is entered by a justice court or municipal court after a hearing pursuant to this section may be appealed to the superior court as provided in title 22, chapter 2, article 4, section 22-425, subsection B and the superior court rules of civil appellate procedure without regard to an amount in controversy. A fee may not be charged to either party for filing an appeal.

Q. A peace officer who makes an arrest pursuant to this section is not civilly or criminally liable for the arrest if the officer acts on probable cause and without malice. A peace officer is not civilly liable for noncompliance with subsection O of this section.

R. This section does not apply to preliminary injunctions issued pursuant to an action for dissolution of marriage or legal separation or for protective orders against domestic violence.

S. In addition to the persons who are authorized to serve process pursuant to rule 4(d), Arizona rules of civil procedure, a peace officer or a correctional officer as defined in section 41-1661 who is acting in the officer's official capacity may serve an injunction against harassment that is issued pursuant to this section.

T. For the purposes of this section, "harassment":

1. Means either of the following:

(a) A series of acts over any period of time that is directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed or harassed and the conduct in fact seriously alarms, annoys or harasses the person and serves no legitimate purpose.

(b) One or more acts of sexual violence as defined in section 23-371.

2. Includes unlawful picketing, trespassory assembly, unlawful mass assembly, concerted interference with lawful exercise of business activity and engaging in a secondary boycott as defined in section 23-1321 and defamation in violation of section 23-1325.

§ 12-1810 Injunction against workplace harassment; definitions

A. An employer or an authorized agent of an employer may file a written verified petition with a magistrate, justice of the peace or superior court judge for an injunction prohibiting workplace harassment.

B. The court shall not grant an injunction against workplace harassment against either:

1. A person who is under twelve years of age unless the injunction is granted by the juvenile division of the superior court.

2. More than one defendant.

C. The petition shall state all of the following:

1. The name of the employer.

2. The name and address, if known, of the defendant.

3. A specific statement showing the events and dates of the acts that constitute harassment toward the employer or any person who enters the employer's property or who is performing official work duties.

D. The filing fee for a petition that is filed pursuant to this section is established pursuant to sections 12-284, 22-281 and 22-404.

E. The court shall review the petition and any evidence offered by the employer to determine whether to issue the injunction without further hearing. Rules 65(a)(1) and 65(e) of the Arizona rules of civil procedure do not apply to injunctions requested pursuant to this section. If the court finds reasonable evidence of workplace harassment by the defendant or that good cause exists to believe that great or irreparable harm would result to the employer or any other person who enters the employer's property or who is performing official work duties or if the injunction is not granted before the defendant or the defendant's attorney can be heard in opposition and the court finds specific facts that attest to the employer's efforts to give notice to the defendant or reasons supporting the employer's claim that notice should not be given, the court shall issue an injunction pursuant to subsection F of this section. If the court denies the requested relief, the court may schedule a further hearing within ten days with reasonable notice to the defendant.

F. If the court grants an injunction against workplace harassment, the court may do any of the following:

1. Restrain the defendant from coming near the employer's property or place of business and restrain the defendant from contacting the employer or other person while that person is on or at the employer's property or place of business or is performing official work duties.

2. Grant any other relief necessary for the protection of the employer, the workplace, the employer's employees or any other person who is on or at the employer's property or place of business or who is performing official work duties.

G. If the court issues an ex parte injunction pursuant to this section, the injunction shall state on its face that the defendant is entitled to a hearing on written request and shall include the name and address of the judicial office in which the request may be filed. At any time during the period that the injunction is in effect, the defendant may request a hearing. The court shall hold the hearing within ten days after the date of the written request unless the court finds compelling reasons to continue the hearing. The hearing shall be held at the earliest possible time. After the hearing, the court may modify, quash or continue the injunction.

H. An injunction against workplace harassment that is issued pursuant to this section shall include the following statement:

Warning

This is an official court order. If you disobey this order, you may be arrested and prosecuted for the crime of interfering with judicial proceedings and any other crime you may have committed in disobeying this order.

I. An injunction that is not served on the defendant within one year after the date that the injunction is issued expires. The injunction is effective on the defendant on service of a copy of the injunction and petition and expires one year after service on the defendant. A modified injunction is effective on service and expires one year after service of the initial injunction and petition.

J. A supplemental information form that is used solely for the purposes of service of process on the defendant and that contains information provided by the plaintiff is confidential.

K. Each affidavit, declaration, acceptance or return of service shall be filed as soon as practicable but not later than seventy-two hours, excluding weekends and holidays, with the clerk of the issuing court or as otherwise required by court rule. The filing shall be completed in person, electronically or by fax.

L. The supreme court shall maintain a central repository for injunctions. Within twenty-four hours after the affidavit, declaration, acceptance or return of service has been filed, excluding weekends and holidays, the court that issued the injunction shall enter the order and proof of service into the supreme court's central repository for injunctions. The supreme court shall register a copy of the injunction and a copy of the affidavit of service of process or acceptance of service with the national crime information center. The effectiveness of an injunction does not depend on the injunction's registration, and for enforcement purposes pursuant to section 13-2810, a copy of an injunction, whether or not registered, is presumed to be a valid existing order of the court for one year after the date on which the defendant was served. Any changes or modifications to the injunction are effective on entry by the court and shall be registered with the clerk of the issuing court, or as otherwise required by court rule, within twenty-four hours after the entry, excluding weekends and holidays.

M. This section does not:

1. Expand, diminish, alter or modify the duty of an employer to provide a safe workplace for its employees and other persons.

2. Permit a court to issue a temporary restraining order or injunction that prohibits speech or other activities that are constitutionally protected or otherwise protected by law, including actions involving organized labor disputes that do not involve unlawful picketing, trespassory assembly, unlawful mass assembly, concerted interference with lawful exercise of business activity and engaging in a secondary boycott as defined in section 23-1321, defamation in violation of section 23-1325 or any actual or threatened misrepresentation, fraud, duress, violence or breach of the peace.

3. Preclude either party from being represented by private counsel or appearing on the party's own behalf.

N. When the employer has knowledge that a specific person or persons are the target of harassment as defined by this section, the employer shall make a good faith effort to provide notice to the person or persons that the employer intends to petition the court for an injunction against workplace harassment.

O. Whether or not a violation occurs in the presence of a peace officer, a peace officer, with or without a warrant, may arrest a person if the peace officer has probable cause to believe that the person has violated section 13-2810 by disobeying or resisting an injunction that was issued pursuant to this section. The release provisions under section 13-3903 do not apply to an arrest made pursuant to this subsection. A person who is arrested pursuant to this subsection may be released from custody pursuant to the Arizona rules of criminal procedure or any applicable statute. The court shall include in an order for release any pretrial release conditions that the court deems appropriate.

P. The remedies under this section for the enforcement of protection orders are in addition to any other civil and criminal remedies that are available. The municipal court and the justice court may hear and decide all matters arising pursuant to this section. On notice to the affected party and after a hearing, the court may enter an order that requires any party to pay the costs of the action, including reasonable attorney fees. A party may appeal an order entered by a justice court or municipal court pursuant to section 22-261 or 22-425 and the superior court rules of civil appellate procedure without regard to an amount in controversy.

Q. A peace officer who makes an arrest pursuant to this section is immune from civil or criminal liability if the officer acts on probable cause.

R. An employer is immune from civil liability for seeking or failing to seek an injunction under this section unless the employer is seeking an injunction primarily to accomplish a purpose for which the injunction was not designed. Any action or statement by an employer under this section shall not be deemed an admission by the employer of any fact. An action or statement by an employer under this section may be used for impeachment purposes.

S. In addition to the persons who are authorized to serve process pursuant to rule 4(d), Arizona rules of civil procedure, a peace officer may serve an injunction against workplace harassment pursuant to this section.

T. For the purposes of this section:

1. "Employer" means an individual, partnership, association or corporation or a person or group of persons who act, directly or indirectly, on behalf of or in the interest of an employer and with the consent of the employer. Employer includes this state, a political subdivision of this state and any school district or other special district.

2. "Harassment" means a single threat or act of physical harm or damage or a series of acts over any period of time that would cause a reasonable person to be seriously alarmed or annoyed and includes unlawful picketing, trespassory assembly, unlawful mass assembly, concerted interference with lawful exercise of business activity and engaging in a secondary boycott as defined in section 23-1321 and defamation in violation of section 23-1325.

Article 2 Uniform Declaratory Judgments Act

§ 12-1831 Scope

Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.

§ 12-1832 Power to construe, etc.

Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.

§ 12-1833 Before breach

A contract may be construed either before or after there has been a breach thereof.

§ 12-1834 Personal representatives, etc.; declaration of rights

Any person interested as or through a personal representative, administrator, trustee, guardian, conservator or other fiduciary, creditor, devisee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, ward, or insolvent, may have a declaration of rights or legal relations in respect to any of the following:

1. To ascertain any class of creditors, devisees, heirs or others; or

2. To direct the personal representatives, administrators, trustees, guardians or conservators to do or abstain from doing any particular act in their fiduciary capacity; or

3. To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.

§ 12-1835 Enumeration not exclusive

The enumeration in sections 12-1832, 12-1833 and 12-1834 does not limit or restrict the exercise of the general powers conferred in section 12-1831, in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.

§ 12-1836 Discretionary

The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.

§ 12-1837 Review

All orders, judgments and decrees under this article may be reviewed as other orders, judgments and decrees.

§ 12-1838 Supplemental relief

Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by complaint or appropriate pleading to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.

§ 12-1839 Jury trial

When a proceeding under this article involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

§ 12-1840 Costs

In any proceeding under this article the court may make such award of costs as may seem equitable and just.

§ 12-1841 Parties; notice of claim of unconstitutionality

A. When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding that involves the validity of a municipal ordinance or franchise, such municipality shall be made a party and shall be entitled to be heard. In any proceeding in which a state statute, ordinance, franchise or rule is alleged to be unconstitutional, the attorney general and the speaker of the house of representatives and the president of the senate shall be served with a copy of the pleading, motion or document containing the allegation at the same time the other parties in the action are served and shall be entitled to be heard.

B. If a pleading, motion or document containing the allegation is served on the attorney general and the speaker of the house of representatives and the president of the senate pursuant to subsection A, a notice of claim of unconstitutionality shall be attached to the pleading, motion or document as the cover page and shall state the following information:

1. The name, address and telephone number of the attorney for the party alleging that a state law is unconstitutional or the name, address and telephone number of the party if the party is not represented by an attorney.

2. The case name, court name, caption and case number of the proceeding.

3. A brief statement of the basis for the claim of unconstitutionality.

4. A brief description of the proceeding, with copies of any court orders in the proceeding if the claim of unconstitutionality is asserted in a pleading, motion or document other than the pleading, motion or document that initiated the proceeding.

5. The date, time, location, judge and subject of the next hearing in the proceeding, if any.

C. If the attorney general or the speaker of the house of representatives and the president of the senate are not served in a timely manner with notice pursuant to subsection A, on motion by the attorney general, the speaker of the house of representatives or the president of the senate the court shall vacate any finding of unconstitutionality and shall give the attorney general, the speaker of the house of representatives or the president of the senate a reasonable opportunity to prepare and be heard.

D. This section shall not be construed to compel the attorney general, the speaker of the house of representatives or the president of the senate to intervene as a party in any proceeding or to permit them to be named as defendants in a proceeding. The attorney general, the speaker of the house of representatives or the president of the senate, in the party's discretion, may intervene as a party, may file briefs in the matter or may choose not to participate in a proceeding that is subject to the notice requirements of this section.

§ 12-1842 Construction

This article is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.

§ 12-1843 Words construed

The word "person" wherever used in this article shall be construed to mean any person, partnership, joint stock company, unincorporated association, or society, or municipal or other corporation of any character whatsoever.

§ 12-1844 Provisions severable

The several sections and provisions of this article except sections 12-1831 and 12-1832, are hereby declared independent and severable, and the invalidity, if any, of any part or feature thereof shall not affect or render the remainder of the article invalid or inoperative.

§ 12-1845 Uniformity of interpretation

This article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees.

§ 12-1846 Short title

This article may be cited as the uniform declaratory judgments act.

Article 3 Certification of Questions of Law Act

§ 12-1861 Supreme court; questions of law certified by other courts

The supreme court may answer questions of law certified to it by the supreme court of the United States, a court of appeals of the United States, a United States district court or a tribal court when requested by the certifying court if there are involved in any proceedings before the certifying court questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court and the intermediate appellate courts of this state.

§ 12-1862 Invocation of proceedings

This article may be invoked by an order of any of the courts referred to in section 12-1861 on the court's own motion.

§ 12-1863 Certification order; contents

A certification order shall set forth both of the following:

1. The questions of law to be answered.

2. A statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose.

§ 12-1864 Preparation and transmission of certification order

A. The certification order shall be prepared by the certifying court, signed by the judge presiding at the hearing and forwarded to the supreme court by the clerk of the certifying court under its official seal.

B. The supreme court may require the original or copies of all or of any portion of the record before the certifying court to be filed with the certification order, if, in the opinion of the supreme court, the record or portion of the record may be necessary in answering the questions.

§ 12-1865 Fees and costs

Fees and costs shall be the same as in civil appeals docketed before the supreme court and shall be equally divided between the parties unless otherwise ordered by the certifying court in its order of certification.

§ 12-1866 Proceedings in the supreme court

Proceedings in the supreme court shall be those provided in rules adopted by it and statutes governing briefs and arguments.

§ 12-1867 Opinion of supreme court

The written opinion of the supreme court stating the law governing the questions certified shall be sent by the clerk under the seal of the supreme court to the certifying court and to the parties.

Article 4 Class Actions

§ 12-1871 Determination of maintainability

A. After the commencement of an action that is brought as a class action and after a hearing, the court shall determine by order whether the action is to be maintained as a class action. The court may condition, alter, amend or withdraw its order at any time before the decision on the merits.

B. If the court finds that an action should be maintained as a class action, the court shall certify the action in writing, shall set forth its reasons as to why the action should be maintained as a class action and shall describe all evidence in support of its determination.

§ 12-1872 Court orders

In the conduct of class actions, the court may make orders that:

1. Determine the course of the proceedings or that prescribe measures to prevent undue repetition or complication in the presentation of evidence or argument.

2. For the protection of the class members or for the fair conduct of the action, require that notice be given in any manner the court directs to some or all of the members of any step in the action, of the proposed entry of judgment or of the opportunity of members to signify whether they consider the representation to be fair and adequate, to intervene and present claims and defenses or otherwise to come into the action.

3. Impose conditions on the representative parties or on intervenors.

4. Require that the pleadings be amended to eliminate allegations as to representation of absent persons and that the action proceed accordingly.

5. Deal with similar procedural matters.

6. Combine with any other appropriate pretrial order.

§ 12-1873 Appeals; stay

A. The court's certification or refusal to certify a class action is appealable in the same manner as a final order or judgment.

B. If an appeal is filed pursuant to this section, all discovery and other proceedings shall be stayed except that on motion of a party, the court may permit discovery proceedings to continue during the pendency of the appeal.

C. An appeal filed pursuant to subsection A of this section shall be entitled to preference.

Chapter 11 Extraordinary Legal Remedies

Article 1 Certiorari

§ 12-2001 Granting of writ

The writ of certiorari may be granted by the supreme and superior courts or by any judge thereof, in all cases when an inferior tribunal, board or officer, exercising judicial functions, has exceeded its jurisdiction and there is no appeal, nor, in the judgment of the court, a plain, speedy and adequate remedy.

§ 12-2002 Application for writ; grant of writ

A. An application for a writ of certiorari shall be made on affidavit by the party beneficially interested, and the court may grant the writ with or without notice to the adverse party, or may enter an order to show cause why it should not be granted.

B. The writ may be directed to the inferior tribunal, board or officer, or to any other person having the custody of the record or proceedings to be certified.

C. When the writ is directed to a tribunal, the clerk, if there is one, shall return the writ with the transcript required.

§ 12-2003 Contents of writ

The writ of certiorari shall command the party to whom it is directed to certify fully to the court issuing the writ, at a specified time and place, and to annex to the writ a transcript of the record and proceedings named in the writ, and requiring the party in the meantime to desist from further proceedings in the matter to be reviewed.

§ 12-2004 Stay of proceedings

If a stay of proceedings is not intended, the words requiring the stay shall be omitted from the writ. The words may be inserted or omitted in the discretion of the court. If the words are omitted, the power of the inferior court or officer shall not be suspended nor the proceedings stayed.

§ 12-2005 Service of writ

A writ of certiorari shall be served in the same manner as a summons in a civil action, except when otherwise directed by the court.

§ 12-2006 Extent of review

The review upon writ of certiorari shall not be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued its authority.

§ 12-2007 Denial of return to writ; hearing; transmittal of judgment; appeal

A. If the return to a writ of certiorari is defective, the court may order a further return made. When a full return has been made, the court or judge shall hear the matter and give judgment affirming, annulling or modifying the proceedings below.

B. A copy of the judgment, certified by the clerk, shall be transmitted to the inferior tribunal, board or officer.

C. If the judgment is rendered in a court other than the supreme court, an appeal may be taken from such judgment as in a civil action.

Article 2 Mandamus

§ 12-2021 Issuance of writ

A writ of mandamus may be issued by the supreme or superior court to any person, inferior tribunal, corporation or board, though the governor or other state officer is a member thereof, on the verified complaint of the party beneficially interested, to compel, when there is not a plain, adequate and speedy remedy at law, performance of an act which the law specially imposes as a duty resulting from an office, trust or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.

§ 12-2022 Alternative or peremptory writ

A. A writ of mandamus may be either alternative or peremptory.

B. The alternative writ shall state generally the allegations of the complaint against the party to whom it is directed, and command such party, immediately after receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the court at a specified time and place why he has not done so.

C. The peremptory writ shall be in form similar to the alternative writ, except that the words requiring the party to show cause why he has not done as commanded shall be omitted.

§ 12-2023 Application for writ; notice; hearing on default

A. When application for a writ of mandamus is made without notice to the adverse party, and the writ is allowed, the alternative writ shall be first issued.

B. If application for a writ of mandamus is made upon due notice, the peremptory writ may be issued in the first instance. The notice of application, when given, shall be of at least ten days.

C. The writ shall not be granted by default, but the action shall be heard by the court though the adverse party does not appear.

§ 12-2024 Answer and reply

On the return day of the alternative writ of mandamus, or at the time stated in the notice of application for the writ, defendant may show cause by verified answer why the writ should not be granted. The answer shall not be conclusive, but plaintiff may object to its sufficiency and may reply thereto within such time as fixed by the court.

§ 12-2025 Trial; order; jury; place of trial; procedure

A. If the answer or reply upon an application for writ of mandamus raises a question of fact, the court shall try such question, or may order the question tried before a jury. The question to be tried by the jury shall be distinctly stated in the order for the trial.

B. If the application is made in the supreme court the court shall designate a superior court for the trial of an issue of fact, and transmit to such court a certified copy of the order for trial.

C. The superior court shall thereupon try such issue to a jury as a trial in civil actions, and shall certify the verdict to the supreme court if no motion for a new trial is made within five days or if such motion is made and denied, when it is denied.

§ 12-2026 Motion for new trial; retrial

A. Either party may move for a new trial in the court where the verdict was returned.

B. If a new trial is granted, another jury shall be summoned within five days thereafter to try the issue, unless the parties agree on a longer time.

§ 12-2027 Determination of questions of law

If the answer and reply upon application for a writ of mandamus raise only questions of law or put in issue immaterial statements not affecting substantial rights of the parties, or when the question of fact has been determined, the court shall hear the argument.

§ 12-2028 Writ of mandamus; service

A. If judgment is awarded applicant a peremptory writ of mandamus shall be awarded without delay.

B. The writ shall be served in the same manner as a summons in a civil action, except when otherwise expressly directed by the court.

§ 12-2029 Disobedience of writ; classification

A. If a person upon whom the peremptory writ of mandate has been personally served, without just excuse, knowingly fails or refuses to obey the writ, such person is guilty of a class 3 misdemeanor and the court may make any orders necessary and proper for complete enforcement of the writ.

B. If a fine is imposed upon an officer who draws a salary from the state or a county, a certified copy of the order shall be forwarded to the department of administration or board of supervisors as the case may be, and the amount of the fine shall be retained from the salary of such officer.

§ 12-2030 Mandamus action; award of fees and other expenses against the state or political subdivision; definition

A. A court shall award fees and other expenses to any party other than this state or any political subdivision of this state which prevails by an adjudication on the merits in a civil action brought by the party against the state, any political subdivision of this state or an intervenor to compel a state officer or any officer of any political subdivision of this state to perform an act imposed by law as a duty on the officer.

B. As used in this section, "fees and other expenses" includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, report, test or project found by the court to be necessary for preparation of the party's case, and reasonable and necessary attorney fees.

Article 3 Quo Warranto

§ 12-2041 Action by attorney general; venue

A. An action may be brought in the supreme court by the attorney general in the name of the state upon his relation, upon his own information or upon the verified complaint of any person, in cases where the supreme court has jurisdiction, or otherwise in the superior court of the county which has jurisdiction, against any person who usurps, intrudes into or unlawfully holds or exercises any public office or any franchise within this state.

B. The attorney general shall bring the action when he has reason to believe that any such office or franchise is being usurped, intruded into or unlawfully held or exercised.

§ 12-2042 Action by county attorney

An action may be brought in the superior court by the county attorney in the name of the state upon his own information or upon the verified complaint of any person, against any person who usurps, intrudes into or who unlawfully holds or exercises any public office or any franchise within his county. The county attorney shall bring the action when he has reason to believe that any such office or franchise is being usurped, intruded into or unlawfully held or exercised.

§ 12-2043 Failure of attorney general or county attorney to bring action for claimant of office

A. If the attorney general or the county attorney refuses to bring an action as provided for in sections 12-2041 and 12-2042, upon information or at the request of any person claiming such office or franchise, the person may apply to the court for leave to bring the action in his own name and may so bring it if leave therefor is granted.

B. Notice of the application shall be given to the attorney general or the county attorney as the case may be.

§ 12-2044 Adjudication of office; damages; several claimants

A. When the action involves the right to an office, the complaint shall show the one who is entitled to the office, and the issues made thereon shall be tried. The judgment given shall adjudge who is entitled to the office. If judgment is given awarding the right to the office to the person alleged to be entitled thereto, he may recover the damages which he has sustained by reason of the usurpation of the office by defendant.

B. When several persons claim the same office or franchise, one action may be brought against all such persons to try their rights to the office or franchise.

§ 12-2045 Judgment of usurpation; classification

If a defendant is adjudged guilty of usurping or intruding into or unlawfully holding an office, franchise or privilege, such defendant is guilty of a petty offense and shall be excluded from the office, franchise or privilege.

Chapter 12 Appeals

Article 1 In General

§ 12-2101 Judgments and orders that may be appealed

A. An appeal may be taken to the court of appeals from the superior court in the following instances:

1. From a final judgment entered in an action or special proceeding commenced in a superior court, or brought into a superior court from any other court, except in actions of forcible entry and detainer when the annual rental value of the property is less than $300.

2. From any special order made after final judgment.

3. From any order affecting a substantial right made in any action when the order in effect determines the action and prevents judgment from which an appeal might be taken.

4. From a final order affecting a substantial right made in a special proceeding or on a summary application in an action after judgment.

5. From an order:

(a) Granting or refusing a new trial or granting a motion in arrest of judgment.

(b) Granting or dissolving an injunction or refusing to grant or dissolve an injunction or appointing a receiver.

(c) Dissolving or refusing to dissolve an attachment or garnishment.

(d) Granting or denying a petition to restore a person's right to possess a firearm pursuant to section 13-925.

(e) Granting or denying a motion to dismiss or quash pursuant to section 12-751, unless the court did not find that the moving party established prima facie proof as prescribed in section 12-751, subsection B. The court of appeals shall expedite any appeal filed pursuant to this subdivision unless the court for good cause finds that expedited review is not feasible under the circumstances or a court rule specifically provides otherwise.

6. From an interlocutory judgment that determines the rights of the parties and directs an accounting or other proceeding to determine the amount of the recovery.

7. From an interlocutory judgment in any action for partition that determines the rights and interests of the respective parties and directs partition to be made.

8. From any interlocutory judgment, decree or order made or entered in actions to redeem real or personal property from a mortgage thereof or lien thereon, determining such right to redeem and directing an accounting.

9. From a judgment, decree or order entered in any formal proceedings under title 14.

10. From an order or judgment:

(a) Adjudging a person insane or incompetent or committing a person to the state hospital.

(b) Revoking or refusing to revoke an order or judgment adjudging a person insane or incompetent or restoring or refusing to restore to competency any person who has been declared insane or incompetent.

11. From an order or judgment made and entered on habeas corpus proceedings:

(a) The petitioner may appeal from an order or judgment refusing the petitioner's discharge.

(b) The officer having the custody of the petitioner, or the county attorney on behalf of the state, from an order or judgment discharging the petitioner whereupon the court may admit the petitioner to bail pending the appeal.

B. If any order or judgment referred to in this section is made or rendered by a judge it is appealable as if made by the court.

§ 12-2101.01 Appeals from arbitration awards

A. An appeal may be taken from any of the following:

1. An order denying an application to compel arbitration made under section 12-1502 or 12-3007.

2. An order granting an application to stay arbitration made under section 12-1502 or 12-3007.

3. An order denying confirmation of an award.

4. An order modifying or correcting an award.

5. An order vacating an award without directing a rehearing.

6. A judgment or decree entered pursuant to chapter 9 or 21 of this title.

B. The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action.

§ 12-2102 Scope of review by supreme court upon appeal from final judgment

A. Upon an appeal from a final judgment, the supreme court shall review any intermediate orders involving the merits of the action and necessarily affecting the judgment, and all orders and rulings assigned as error, whether a motion for a new trial was made or not.

B. If a motion for new trial was denied, the court may, on appeal from the final judgment, review the order denying the motion although no appeal is taken from the order.

C. On an appeal from a final judgment the supreme court shall not consider the sufficiency of the evidence to sustain the verdict or judgment in an action tried before a jury unless a motion for a new trial was made.

§ 12-2103 Powers of supreme court on appeal; affirmance; reversal; modification; restitution; rehearing when three judges do not concur

A. The supreme court may affirm, reverse or modify a judgment or order appealed from, and may render such judgment or order as the court below should have rendered, or may remand the action to the court below with directions to render such judgment or order, or may direct that a new trial or other proceedings be had, as justice may require, accompanying the mandate with a copy of its opinion.

B. When the judgment or order is reversed or modified the court may make complete restitution of all property and rights lost by the erroneous judgment or order.

C. If three judges do not concur the action shall be reheard.

§ 12-2104 Remittitur or additur by supreme court

A. The supreme court may order that if the party who has recovered damages shall, within such time as the court may fix, file a remittitur from the judgment of the amount which the court deems excessive, the judgment as to the remainder of the damages shall be affirmed, otherwise reversed and a new trial ordered.

B. If the supreme court deems the judgment inadequate and insufficient it may order that if both parties consent to the entry of judgment for such amount as the court deems adequate, the court from which the appeal was taken shall render judgment for such amount, and that in case of failure to so consent, the judgment shall be reversed.

§ 12-2105 Extent of judgment against surety on bond for costs on appeal or supersedeas bond; direction when money deposited in lieu of bond

A. When the supreme court affirms the judgment or order appealed from, it shall give judgment against appellant and the surety upon the bond for costs on appeal for costs of the supreme court and the court below.

B. When a supersedeas bond has been given, and the appeal is from a judgment for the recovery of money, the supreme court shall give judgment against appellant and the surety upon such bond for the amount of the judgment with interest from the date of its rendition.

C. If money has been deposited in lieu of bond, the supreme court shall direct that the costs and the amount of the judgment be paid from the money deposited.

§ 12-2106 Penalty for taking frivolous appeal or appeal for delay

When the supreme court is of the opinion that an appeal has been taken for delay, and that there was not sufficient grounds for taking an appeal, it may include in its judgment an additional amount, not exceeding ten per cent of the judgment appealed from, if the judgment is for the recovery of money, and not exceeding five hundred dollars in other cases, as damages for a frivolous appeal.

§ 12-2107 Filing fees on appeal; exception

A. The appellant in a civil action appealed to the court of appeals or the supreme court, as the case may be, shall upon filing the notice of the appeal pay to the clerk of the superior court in the county from which the action is appealed a filing fee established pursuant to section 12-284. This fee is exclusive of the per page copy fee prescribed by section 12-284. If an appellee files a cross appeal in the same case a filing fee established pursuant to section 12-284 shall be paid to the clerk of the superior court.

B. A filing fee shall not be charged to an appellant for filing an appeal, or to an appellee filing a cross appeal in the same case, to the court of appeals or to the supreme court from an order:

1. Granting or denying a petition for an order of protection under section 13-3602.

2. Granting or denying an injunction against harassment under section 12-1809.

3. Quashing an order of protection or injunction against harassment.

§ 12-2108 Preservation of right to appeal judgment without execution

A. If a plaintiff in any civil action obtains a judgment under any legal theory, the amount of the bond that is necessary to stay execution during the course of all appeals or discretionary reviews of that judgment by any appellate court shall be set as the lesser of the following:

1. The total amount of damages awarded excluding punitive damages.

2. Fifty per cent of the appellant's net worth.

3. Twenty-five million dollars.

B. Notwithstanding subsection A, if an appellee proves by clear and convincing evidence that an appellant is intentionally dissipating assets outside the ordinary course of business to avoid payment of a judgment, the court may require the appellant to post a bond in an amount up to the full amount of the judgment.

C. Notwithstanding subsection A, if an appellant proves by clear and convincing evidence that the appellant is likely to suffer substantial economic harm if required to post bond in an amount required under subsection A, the trial court may lower the bond amount to an amount that will not cause the appellant substantial economic harm.

Chapter 13 Evidence

Article 1 Competency of Witnesses

§ 12-2201 Persons who may be witnesses

A. Every person, including a party, may testify in any civil or criminal proceeding, or before any person who has authority to receive evidence, except as otherwise expressly provided by law.

B. A person shall not be incompetent to testify because he is a party to an action or proceeding or interested in the issue tried, or because he has been indicted, accused or convicted of a crime, or because of his religious opinions, or because he does not have any religious belief.

§ 12-2202 Persons who may not be witnesses

The following shall not be witnesses in a civil action:

1. Persons who are of unsound mind at the time they are called to testify.

2. Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are to testify, or of relating them truly.

§ 12-2203 Admissibility of expert opinion testimony

A. In a civil or criminal action, only a qualified witness may offer expert opinion testimony regarding scientific, technical or other specialized knowledge and the testimony is admissible if the court determines that all of the following apply:

1. The witness is qualified to offer an opinion as an expert on the subject matter based on knowledge, skill, experience, training or education.

2. The opinion will assist the trier of fact in understanding the evidence or determining a fact in issue.

3. The opinion is based on sufficient facts and data.

4. The opinion is the product of reliable principles and methods.

5. The witness reliably applies the principles and methods to the facts of the case.

B. The court shall consider the following factors, if applicable, in determining whether the expert testimony is admissible pursuant to subsection A:

1. Whether the expert opinion and its basis have been or can be tested.

2. Whether the expert opinion and its basis have been subjected to peer reviewed publications.

3. The known or potential rate of error of the expert opinion and its basis.

4. The degree to which the expert opinion and its basis are generally accepted in the scientific community.

Article 2 Duties and Privileges of Witnesses

§ 12-2211 Attendance of witnesses; punishment for failure to appear or testify

A. A witness summoned in an action shall attend the court from day to day until discharged by the court or, with the court's permission, by the party summoning him.

B. A witness summoned who fails to appear may be punished for contempt of court, and a warrant for the arrest of such witness may be issued to compel his attendance.

C. A witness summoned or otherwise in attendance who refuses to testify may be committed to the county jail until he consents to testify or until discharged as provided by law.

D. No punishment for contempt shall be imposed upon a witness, nor shall a warrant for his arrest be issued until it appears that the lawful fees have been paid or tendered to the witness.

§ 12-2212 Subpoena by public officer; contempt

A. When a public officer is authorized by law to take evidence, he may issue subpoenas, compel attendance of witnesses and production of documentary evidence, administer oaths to witnesses, and cause depositions to be taken, in like manner as in civil actions in the superior court.

B. If a witness fails to appear at the time and place designated in the subpoena, or fails to answer questions relating to the matter about which the officer is authorized to take testimony, or fails to produce a document, the officer may, by affidavit setting forth the facts, apply to the superior court of the county where the hearing is held, and the court shall thereupon proceed as though such failure had occurred in an action pending before it.

§ 12-2213 Privilege from arrest; exceptions

A witness shall be privileged from arrest, except for treason, felony and breach of the peace, during his attendance at court, and in going to and returning therefrom, allowing one day for each twenty-five miles from his place of abode.

§ 12-2214 Requirements for subpoena of media witnesses

A. A subpoena for the attendance of a witness or for production of documentary evidence issued in a civil or criminal proceeding and directed to a person engaged in gathering, reporting, writing, editing, publishing or broadcasting news to the public, and which relates to matters within these news activities, shall have attached to it an affidavit of a person with a direct interest in the matters sought which states all of the following:

1. Each item of documentary and evidentiary information sought from the person subpoenaed.

2. That the affiant or his representative has attempted to obtain each item of information from all other available sources, specifying which items the affiant has been unable to obtain.

3. The identity of the other sources from which the affiant or his representative has attempted to obtain the information.

4. That the information sought is relevant and material to the affiant's cause of action or defense.

5. That the information sought is not protected by any lawful privilege.

6. That the subpoena is not intended to interfere with the gathering, writing, editing, publishing, broadcasting and disseminating of news to the public as protected by the first amendment, Constitution of the United States, or by article II, section 6, Constitution of Arizona.

B. A subpoena served on a person described in subsection A without the required affidavit attached to it has no effect.

C. If the affidavit is controverted or a motion to quash the subpoena or for a protective order is filed by the person subpoenaed, the command of the subpoena shall be postponed until a hearing is held and an order is entered by the court. After the hearing the command of the subpoena shall be carried out in accordance with the order of the court.

D. This section does not apply to a subpoena for the attendance of a witness or the production of documentary evidence issued by or on behalf of a grand jury or a magistrate during an investigative criminal proceeding.

Article 3 Oath and Affirmation

§ 12-2221 Manner of administering oath or affirmation; persons authorized to administer

A. An oath or affirmation shall be administered in a manner which will best awaken the conscience and impress the mind of the person taking the oath or affirmation, and it shall be taken upon the penalty of perjury.

B. The oath or affirmation may be administered by any judge, clerk or deputy clerk of any court of record, justice of the peace, notary public, referee or commissioner of a court of record.

§ 12-2222 Officers authorized to administer oaths

Every executive and judicial officer, clerk or deputy clerk of courts of record, those clerks of a justice or municipal court as authorized by the court and all notaries public may administer and certify oaths required to be administered or taken under any law of this state. Other officers or deputies may administer oaths which pertain to the duties of their office.

§ 12-2223 Persons authorized to administer oath or affirmation within or without United States

A. An oath or affirmation when taken without this state, but within the United States, may be taken before any judge, commissioner or clerk of a court of record having a seal, master in chancery, notary public authorized to administer oaths and affirmations by the law of the state wherein such oaths and affirmations may be taken. If the oath or affirmation purports to have been taken before any such officer, and has his seal of office affixed, such oath or affidavit may be used within this state as though taken before a like officer within this state.

B. An oath or affirmation taken without the United States may be taken before any ambassador, minister, charge d'affairs, consul, deputy consul, vice-consul or consular agent of the United States resident and officiating as such in the country where taken, or before any notary public of the country where taken whose official authority is authenticated under the seal of any ambassador, minister, charge d'affairs, consul, deputy consul, vice-consul or consular agent.

Article 4 Privileged Communications

§ 12-2231 Husband and wife; anti-marital fact

In a civil action a husband shall not be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, except as provided in section 12-2232.

§ 12-2232 Husband and wife; privileged communications; permissible examination

A. A husband or wife, during the marriage or afterward, without the consent of the other, shall not be examined as to any communications made by one to the other during the marriage, except:

1. In an action for divorce or a civil action by one against the other.

2. In a criminal action or proceeding as provided in the criminal code.

3. In an action for damages against another person for adultery committed by either husband or wife.

B. In a hearing conducted pursuant to title 36, chapter 5, a husband or wife, during the marriage or afterward, without the consent of the other, may be examined as to any communications, physical acts or behaviors made by one to the other during the marriage that relate to the matters at issue in the hearing.

§ 12-2233 Clergyman or priest and penitent

In a civil action a clergyman or priest shall not, without the consent of the person making a confession, be examined as to any confession made to him in his character as clergyman or priest in the course of discipline enjoined by the church to which he belongs.

§ 12-2234 Attorney and client

A. In a civil action an attorney shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment. An attorney's paralegal, assistant, secretary, stenographer or clerk shall not, without the consent of his employer, be examined concerning any fact the knowledge of which was acquired in such capacity.

B. For purposes of subsection A, any communication is privileged between an attorney for a corporation, governmental entity, partnership, business, association or other similar entity or an employer and any employee, agent or member of the entity or employer regarding acts or omissions of or information obtained from the employee, agent or member if the communication is either:

1. For the purpose of providing legal advice to the entity or employer or to the employee, agent or member.

2. For the purpose of obtaining information in order to provide legal advice to the entity or employer or to the employee, agent or member.

C. The privilege defined in this section shall not be construed to allow the employee to be relieved of a duty to disclose the facts solely because they have been communicated to an attorney.

§ 12-2235 Doctor and patient

In a civil action a physician or surgeon shall not, without the consent of his patient, or the conservator or guardian of the patient, be examined as to any communication made by his patient with reference to any physical or mental disease or disorder or supposed physical or mental disease or disorder or as to any such knowledge obtained by personal examination of the patient.

§ 12-2236 Waiver of privilege as to attorney or doctor

A person who offers himself as a witness and voluntarily testifies with reference to the communications referred to in sections 12-2234 and 12-2235 thereby consents to the examination of such attorney, physician or surgeon.

§ 12-2237 Reporter and informant

A person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station, shall not be compelled to testify or disclose in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere, the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed.

§ 12-2238 Mediation; privileged communications; exceptions; liability; definitions

A. Before or after the filing of a complaint, mediation may occur pursuant to law, a court order or a voluntary decision of the parties.

B. The mediation process is confidential. Communications made, materials created for or used and acts occurring during a mediation are confidential and may not be discovered or admitted into evidence unless one of the following exceptions is met:

1. All of the parties to the mediation agree to the disclosure.

2. The communication, material or act is relevant to a claim or defense made by a party to the mediation against the mediator or the mediation program arising out of a breach of a legal obligation owed by the mediator to the party.

3. The disclosure is required by statute.

4. The disclosure is necessary to enforce an agreement to mediate.

5. The disclosure is made in a report to a law enforcement officer, the department of child safety or adult protective services by a court appointed mediator who reasonably believes that a minor or vulnerable adult is or has been a victim of abuse, child abuse, neglect, exploitation, physical injury or a reportable offense.

C. Except pursuant to subsection B, paragraph 2, 3, 4 or 5 of this section, a mediator is not subject to service of process or a subpoena to produce evidence or to testify regarding any evidence or occurrence relating to the mediation proceedings. Evidence that exists independently of the mediation even if the evidence is used in connection with the mediation is subject to service of process or subpoena.

D. Notwithstanding subsection B of this section, when necessary to enforce or obtain approval of an agreement that is reached by the parties in a mediation, the terms of an agreement that is evidenced by a record that is signed by the parties are not confidential. The agreement may be introduced in any proceeding to obtain court approval of the agreement, where required by law, or to enforce the agreement. If a party requests that all or a portion of the agreement remain confidential, the agreement may be disclosed to the court under seal with a request to issue appropriate orders to protect the confidentiality of the agreement, as permitted by law.

E. Notwithstanding subsection B of this section, threatened or actual violence that occurs during a mediation is not a privileged communication. The mediator may inform the parties that threatened or actual violence is not privileged and may be disclosed.

F. A mediator is not subject to civil liability except for those acts or omissions that involve intentional misconduct or reckless disregard of a substantial risk of a significant injury to the rights of others.

G. For the purposes of this section:

1. "Abuse" has the same meaning prescribed in section 8-201 if the victim is a minor or section 46-451 if the victim is a vulnerable adult.

2. "Child abuse" means child abuse pursuant to section 13-3623.

3. "Exploitation" has the same meaning prescribed in section 46-451.

4. "Mediation" means a process in which parties who are involved in a dispute enter into one or more private settlement discussions outside of a formal court proceeding with a neutral third party to try to resolve the dispute.

5. "Neglect" has the same meaning prescribed in section 8-201 if the victim is a minor or section 46-451 if the victim is a vulnerable adult.

6. "Physical injury" has the same meaning prescribed in section 13-105.

7. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and that is retrievable in a perceivable form.

8. "Reportable offense" has the same meaning prescribed in section 13-3620.

9. "Sign" means to execute or adopt a tangible symbol with the present intent to authenticate a record or to attach or logically associate an electronic symbol, sound or process to or with a record with the present intent to authenticate a record.

10. "Vulnerable adult" has the same meaning prescribed in section 13-3623.

§ 12-2239 Domestic violence victim advocate; privilege; training; exception; definition

A. In a civil action, a domestic violence victim advocate shall not be examined as to any communication made by the domestic violence victim to the domestic violence victim advocate.

B. This section does not apply to a civil action brought pursuant to title 36, chapter 37, relating to the civil commitment of sexually violent persons.

C. Unless the domestic violence shelter or service provider has immunity under other provisions of law, the communication is not privileged if the victim advocate knows or should have known that the victim will give or has given perjurious statements or statements that would tend to disprove the existence of domestic violence.

D. The domestic violence victim advocate-victim privilege does not extend to cases in which the domestic violence victim advocate has a duty to report nonaccidental injuries and physical neglect of minors as required by section 13-3620.

E. A party to an action may make a motion for disclosure of privileged information under this section and, if the court finds reasonable cause, the court shall hold a hearing in camera as to whether the privilege should apply.

F. To qualify for the privilege prescribed in this section, a domestic violence victim advocate must have at least thirty hours of training in assisting victims of domestic violence. A portion of this training must include an explanation of privileged communication and the reporting requirements prescribed in section 13-3620.

G. A domestic violence victim advocate who is a volunteer shall perform all activities under qualified supervision.

H. The training prescribed in subsection F may be provided by the shelter or service provider or by an outside agency that issues a certificate of completion. The records custodian of the shelter or service provider must maintain the training documents.

I. For the purposes of this section, "domestic violence victim advocate" means a person who is an employee or volunteer at a domestic violence shelter or service provider for victims of domestic violence and who meets the training requirements of this section.

§ 12-2240 Sexual assault victim advocate; privilege; exception; training; supervision; definition

A. In a civil action, a sexual assault victim advocate shall not be examined as to any communication made by the sexual assault victim to the sexual assault victim advocate.

B. This section does not apply to:

1. A civil action brought pursuant to title 36, chapter 37, relating to the civil commitment of sexually violent persons.

2. A sexual assault victim advocate's duty to report pursuant to section 13-3620.

C. Unless the sexual assault program or service provider has immunity under other provisions of law, the communication is not privileged if the sexual assault victim advocate knows or should have known that the victim will give or has given perjurious statements or statements that would tend to disprove the existence of sexual assault.

D. A party to an action may make a motion for disclosure of privileged information under this section and, if the court finds reasonable cause, the court shall hold a hearing in camera as to whether the privilege should apply.

E. To qualify for the privilege prescribed in this section, a sexual assault victim advocate must have at least thirty hours of training in assisting victims of sexual assault. A portion of this training must include an explanation of privileged communication and the reporting requirements prescribed in section 13-3620. The training may be provided by the sexual assault program or service provider or by an outside agency that issues a certificate of completion. The records custodian of the sexual assault program or service provider must maintain the training documents.

F. A sexual assault victim advocate who is a volunteer shall perform all activities under qualified supervision.

G. For the purposes of this section, "sexual assault victim advocate" means a person who is an employee of or volunteer at a sexual assault program or service provider for victims of sexual assault and who meets the training requirements of this section.

Article 5 Testimony in Actions Involving Executors, Administrators or Guardians

§ 12-2251 Limitations on testimony in actions by or against personal representatives, administrators, guardians or conservators

In an action by or against personal representatives, administrators, guardians or conservators in which judgment may be given for or against them as such, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward unless called to testify thereto by the opposite party, or required to testify thereto by the court. The provisions of this section shall extend to and include all actions by or against the heirs, devisees, legatees or legal representatives of a decedent arising out of any transaction with the decedent.

Article 6 Documentary Evidence

§ 12-2261 Instruments which may be acknowledged; receipt of acknowledged instruments in evidence

Every written instrument, except promissory notes, bills of exchange, and the last wills of deceased persons, may be acknowledged as deeds are required to be acknowledged, and when so acknowledged shall be received in evidence without further proof of execution.

§ 12-2263 Admissibility in evidence of certified copies of documents on file with state and county officers

Certified copies, under the hands and official seals, if there are official seals, by all state and county officers of all documents properly on file with such officers, shall be received in evidence as the originals might be received.

§ 12-2264 Evidentiary value of birth and death certificates

A birth, death or fetal death certificate is prima facie evidence of the facts therein stated, but if an alleged father of a child is not the husband of the mother, the certificate shall not be prima facie evidence of paternity if that fact is controverted by the alleged father.

§ 12-2265 Marriage certificate as prima facie evidence of marriage; other evidence competent to prove marriage

A certificate of marriage executed in accordance with the laws of this state or a foreign state or country, or the record thereof, or a certified copy of such record shall be prima facie evidence of the facts therein stated in any proceeding, civil or criminal, in which the matter is in question. When the marriage is to be proved, evidence of the admission of such fact by the adverse party, or evidence of general repute, or evidence of cohabitation as married persons, or other evidence from which the fact may be inferred, is competent.

§ 12-2266 Certificate of purchase, location or receiver's receipt as prima facie evidence of right to possession

A certificate of purchase or a certificate of location or a duplicate receiver's receipt for land situated in this state, issued or made pursuant to any law of the United States or of this state, is prima facie evidence that the holder or assignee of such certificate or receipt is the owner of and entitled to possession of the land described therein as against every other person except the United States.

Article 7.1 Medical Records

§ 12-2291 Definitions

In this article, unless the context otherwise requires:

1. "Clinical laboratory" has the same meaning prescribed in section 36-451.

2. "Contractor" means an agency or service that duplicates medical records on behalf of health care providers.

3. "Department" means the department of health services.

4. "Health care decision maker" means an individual who is authorized to make health care treatment decisions for the patient, including a parent of a minor or an individual who is authorized pursuant to section 8-514.05, title 14, chapter 5, article 2 or 3 or section 36-3221, 36-3231 or 36-3281.

5. "Health care provider" means:

(a) A person who is licensed pursuant to title 32 and who maintains medical records.

(b) A health care institution as defined in section 36-401.

(c) An ambulance service as defined in section 36-2201.

(d) A health care services organization licensed pursuant to title 20, chapter 4, article 9.

6. "Medical records" means all communications related to a patient's physical or mental health or condition that are recorded in any form or medium and that are maintained for purposes of patient diagnosis or treatment, including medical records that are prepared by a health care provider or by other providers. Medical records do not include materials that are prepared in connection with utilization review, peer review or quality assurance activities, including records that a health care provider prepares pursuant to section 36-441, 36-445, 36-2402 or 36-2917. Medical records do not include recorded telephone and radio calls to and from a publicly operated emergency dispatch office relating to requests for emergency services or reports of suspected criminal activity, but include communications that are recorded in any form or medium between emergency medical personnel and medical personnel concerning the diagnosis or treatment of a person.

7. "Payment records" means all communications related to payment for a patient's health care that contain individually identifiable information.

8. "Source data" means information that is summarized, interpreted or reported in the medical record, including x-rays and other diagnostic images.

§ 12-2292 Confidentiality of medical records and payment records

A. Unless otherwise provided by law, all medical records and payment records, and the information contained in medical records and payment records, are privileged and confidential. A health care provider may only disclose that part or all of a patient's medical records and payment records as authorized by state or federal law or written authorization signed by the patient or the patient's health care decision maker.

B. This article does not limit the effect of any other federal or state law governing the confidentiality of medical records and payment records.

§ 12-2293 Release of medical records and payment records to patients and health care decision makers; definition

A. Except as provided in subsections B and C of this section, on the written request of a patient or the patient's health care decision maker for access to or copies of the patient's medical records and payment records, the health care provider in possession of the record shall provide access to or copies of the records to the patient or the patient's health care decision maker.

B. A health care provider may deny a request for access to or copies of medical records or payment records if a health professional determines that either:

1. Access by the patient is reasonably likely to endanger the life or physical safety of the patient or another person.

2. The records make reference to a person other than a health professional and access by the patient or the patient's health care decision maker is reasonably likely to cause substantial harm to that other person.

3. Access by the patient's health care decision maker is reasonably likely to cause substantial harm to the patient or another person.

4. Access by the patient or the patient's health care decision maker would reveal information obtained under a promise of confidentiality with someone other than a health professional and access would be reasonably likely to reveal the source of the information.

C. A health care provider may deny a request for access to or copies of medical records or payment records if the health care provider determines that either:

1. The information was created or obtained in the course of clinical research and the patient or the patient's health care decision maker agreed to the denial of access when consenting to participate in the research and was informed that the right of access will be reinstated on completion of the research.

2. A health care provider is a correctional institution or is acting under the direction of a correctional institution and access by a patient who is an inmate in the correctional institution would jeopardize the health, safety, security, custody or rehabilitation of the patient or other inmates or the safety of any officer, employee or other person at the correctional institution or of a person who is responsible for transporting the inmate.

D. If the health care provider denies a request for access to or copies of the medical records or payment records, the health care provider must note this determination in the patient's records and provide to the patient or the patient's health care decision maker a written explanation of the reason for the denial of access. The health care provider must release the medical records or payment records information for which there is not a basis to deny access under subsection B of this section.

E. For the purposes of this section, "health professional" has the same meaning prescribed in section 32-3201.

§ 12-2294 Release of medical records and payment records to third parties

A. A health care provider shall disclose medical records or payment records, or the information contained in medical records or payment records, without the patient's written authorization as otherwise required by law or when ordered by a court or tribunal of competent jurisdiction.

B. A health care provider may disclose medical records or payment records, or the information contained in medical records or payment records, pursuant to written authorization signed by the patient or the patient's health care decision maker.

C. A health care provider may disclose medical records or payment records or the information contained in medical records or payment records and a clinical laboratory may disclose clinical laboratory results without the written authorization of the patient or the patient's health care decision maker as otherwise authorized by state or federal law, including the health insurance portability and accountability act privacy standards (45 Code of Federal Regulations part 160 and part 164, subpart E), or as follows:

1. To health care providers who are currently providing health care to the patient for the purpose of diagnosis or treatment of the patient.

2. To health care providers who have previously provided treatment to the patient, to the extent that the records pertain to the provided treatment.

3. To ambulance attendants as defined in section 36-2201 for the purpose of providing care to or transferring the patient whose records are requested.

4. To a private agency that accredits health care providers and with whom the health care provider has an agreement requiring the agency to protect the confidentiality of patient information.

5. To a health profession regulatory board as defined in section 32-3201.

6. To health care providers for the purpose of conducting utilization review, peer review and quality assurance pursuant to section 36-441, 36-445, 36-2402 or 36-2917.

7. To a person or entity that provides services to the patient's health care providers or clinical laboratories and with whom the health care provider or clinical laboratory has an agreement requiring the person or entity to protect the confidentiality of patient information and as required by the health insurance portability and accountability act privacy standards, 45 Code of Federal Regulations part 164, subpart E.

8. To the legal representative of a health care provider in possession of the medical records or payment records for the purpose of securing legal advice.

9. To the patient's third party payor or the payor's contractor.

10. To the industrial commission of Arizona or parties to an industrial commission claim pursuant to title 23, chapter 6.

D. A health care provider may disclose a deceased patient's medical records or payment records or the information contained in medical records or payment records to the patient's health care decision maker at the time of the patient's death. A health care provider also may disclose a deceased patient's medical records or payment records or the information contained in medical records or payment records to the personal representative or administrator of the estate of a deceased patient, or if a personal representative or administrator has not been appointed, to the following persons in the following order of priority, unless the deceased patient during the deceased patient's lifetime or a person in a higher order of priority has notified the health care provider in writing that the deceased patient opposed the release of the medical records or payment records:

1. The deceased patient's spouse, unless the patient and the patient's spouse were legally separated at the time of the patient's death.

2. The acting trustee of a trust created by the deceased patient either alone or with the deceased patient's spouse if the trust was a revocable inter vivos trust during the deceased patient's lifetime and the deceased patient was a beneficiary of the trust during the deceased patient's lifetime.

3. An adult child of the deceased patient.

4. A parent of the deceased patient.

5. An adult brother or sister of the deceased patient.

6. A guardian or conservator of the deceased patient at the time of the patient's death.

E. A person who receives medical records or payment records pursuant to this section shall not disclose those records without the written authorization of the patient or the patient's health care decision maker, unless otherwise authorized by law.

F. If a health care provider releases a patient's medical records or payment records to a contractor for the purpose of duplicating or disclosing the records on behalf of the health care provider, the contractor shall not disclose any part or all of a patient's medical records or payment records in its custody except as provided in this article. After duplicating or disclosing a patient's medical records or payment records on behalf of a health care provider, a contractor must return the records to the health care provider who released the medical records or payment records to the contractor.

§ 12-2294.01 Release of medical records or payment records to third parties pursuant to subpoena

A. A subpoena seeking medical records or payment records shall be served on the health care provider and any party to the proceedings at least ten days before the production date on the subpoena.

B. A subpoena that seeks medical records or payments records must meet one of the following requirements:

1. The subpoena is accompanied by a written authorization signed by the patient or the patient's health care decision maker.

2. The subpoena is accompanied by a court or tribunal order that requires the release of the records to the party seeking the records or that meets the requirements for a qualified protective order under the health insurance portability and accountability act privacy standards (42 Code of Federal Regulations section 164.512(e)).

3. The subpoena is a grand jury subpoena issued in a criminal investigation.

4. The subpoena is issued by a health profession regulatory board as defined in section 32-3201.

5. The health care provider is required by another law to release the records to the party seeking the records.

C. If a subpoena does not meet one of the requirements of subsection B of this section, a health care provider shall not produce the medical records or payment records to the party seeking the records, but may either file the records under seal pursuant to subsection D of this section, object to production under subsection E of this section or file a motion to quash or modify the subpoena under rule 45 of the Arizona rules of civil procedure.

D. It is sufficient compliance with a subpoena issued in a court or tribunal proceeding if a health care provider delivers the medical records or payment records under seal as follows:

1. The health care provider may deliver by certified mail or in person a copy of all the records described in the subpoena by the production date to the clerk of the court or tribunal or if there is no clerk then to the court or tribunal, together with the affidavit described in paragraph 4 of this subsection.

2. The health care provider shall separately enclose and seal a copy of the records in an inner envelope or wrapper, with the title and number of the action, name of the health care provider and date of the subpoena clearly inscribed on the copy of the records. The health care provider shall enclose the sealed envelope or wrapper in an outer envelope or wrapper that is sealed and directed to the clerk of the court or tribunal or if there is no clerk then to the court or tribunal.

3. The copy of the records shall remain sealed and shall be opened only on order of the court or tribunal conducting the proceeding.

4. The records shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:

(a) That the affiant is the duly authorized custodian of the records and has authority to certify the records.

(b) That the copy is a true complete copy of the records described in the subpoena.

(c) If applicable, that the health care provider is subject to the confidentiality requirements in 42 United States Code sections 290dd-3 and 290ee-3 and applicable regulations and that those confidentiality requirements may apply to the requested records. The affidavit shall request that the court make a determination, if required under applicable federal law and regulations, as to the confidentiality of the records submitted.

(d) If applicable, that the health care provider has none of the records described or only part of the records described in the subpoena.

5. The copy of the records is admissible in evidence as provided under rule 902(11), Arizona rules of evidence. The affidavit is admissible as evidence of the matters stated in the affidavit and the matters stated are presumed true. If more than one person has knowledge of the facts, more than one affidavit may be made. The presumption established by this paragraph is a presumption affecting the burden of producing evidence.

E. If a subpoena does not meet one of the requirements of subsection B of this section or if grounds for objection exist under rule 45 of the Arizona rules of civil procedure, a health care provider may file with the court or tribunal an objection to the inspection or copying of any or all of the records as follows:

1. On filing an objection, the health care provider shall send a copy of the objection to the patient at the patient's last known address, to the patient's attorney if known and to the party seeking the records, unless after reasonable inquiry the health care provider cannot determine the last known address of the patient.

2. On filing the objection, the health care provider has no further obligation to assert a state or federal privilege pertaining to the records or to appear or respond to a motion to compel production of records, and may produce the records if ordered by a court or tribunal. If an objection is filed, the patient or the patient's attorney is responsible for asserting or waiving any state or federal privilege that pertains to the records.

3. If an objection is filed, the party seeking production may request an order compelling production of the records. If the court or tribunal issues an order compelling production, a copy of the order shall be provided to the health care provider. On receipt of the order, the health care provider shall produce the records.

4. If applicable, an objection shall state that the health care provider is subject to the confidentiality requirements in 42 United States Code sections 290dd-3 and 290ee-3, shall state that the records may be subject to those confidentiality requirements and shall request that the court make a determination, if required under applicable federal law and regulations, on whether the submitted records are subject to discovery.

F. If a party seeking medical records or payment records wishes to examine the original records maintained by a health care provider, the health care provider may permit the party to examine the original records if the subpoena meets one of the requirements of subsection B of this section. The party seeking the records also may petition a court or tribunal for an order directing the health care provider to allow the party to examine the original records or to file the original records under seal with the court or tribunal under subsection D of this section.

§ 12-2295 Charges

A. Except as otherwise provided by law, a health care provider or contractor may charge a person who requests reproductions of medical records or payment records a reasonable fee for the reproduction of the records pursuant to this section. Except as necessary for continuity of care, a health care provider or contractor may require the payment of any fees in advance.

B. A health care provider or contractor shall not charge for the pertinent information contained in medical records provided to:

1. Another health care provider for the purpose of providing continuing care to the patient to whom the medical record pertains.

2. The patient to whom the medical record pertains for the demonstrated purpose of obtaining health care.

3. The health care decision maker of the patient to whom the medical record pertains for the demonstrated purpose of obtaining health care for the patient.

4. The Arizona medical board, the Arizona board of osteopathic examiners in medicine and surgery or an officer of the department of health services or the local health department requesting records pursuant to section 36-662.

5. The patient or the patient's legal representative for the purpose of appealing a denial of benefits under the social security act. Any additional request for medical records and a request for medical records that were previously provided free of charge in the same calendar year are subject to a reasonable fee pursuant to subsection A of this section, except that a fee may not be charged if no medical records are located in response to the request. A legal representative must provide an appointment of representative form SSA-1696 before obtaining a patient's medical records free of charge.

§ 12-2296 Immunity

A health care provider, contractor or clinical laboratory that acts in good faith under this article is not liable for damages in any civil action for the disclosure of medical records, payment records or clinical laboratory results or information contained in medical records, payment records or clinical laboratory results that is made pursuant to this article or as otherwise provided by law. The health care provider, contractor or clinical laboratory is presumed to have acted in good faith. The presumption may be rebutted by clear and convincing evidence.

§ 12-2297 Retention of records

A. Unless otherwise required by statute or by federal law, a health care provider shall retain the original or copies of a patient's medical records as follows:

1. If the patient is an adult, for at least six years after the last date the adult patient received medical or health care services from that provider.

2. If the patient is a child, either for at least three years after the child's eighteenth birthday or for at least six years after the last date the child received medical or health care services from that provider, whichever date occurs later.

3. Source data may be maintained separately from the medical record and must be retained for six years from the date of collection of the source data.

B. When a health care provider retires or sells the provider's practice the provider shall take reasonable measures to ensure that the provider's records are retained pursuant to this section.

C. A person who is licensed pursuant to title 32 as an employee of a health care provider is not responsible for storing or retaining medical records but shall compile and record the records in the customary manner.

D. A nursing care institution as defined in section 36-401 shall retain patient records for six years after the date of the patient's discharge. For a minor, the nursing care institution shall retain the records for three years after the patient reaches eighteen years of age or for six years after the date of the patient's discharge, whichever date occurs last.

Article 8 Evidence of Advance Payment

§ 12-2301 Definitions

In this article, unless the context otherwise requires:

1. "Advance payment" means any money or other thing of value voluntarily paid or provided before trial, as compensation or reimbursement for damages, to or for the benefit of any person having or asserting a claim for damages for personal injuries or for wrongful death or for damage or destruction of property against the person by whom or on whose behalf such payment is made.

2. "Defendant" means any party defending against a claim asserted against him by another party to an action.

3. "Plaintiff" means any party asserting a claim for damages against another party to an action.

§ 12-2302 Admissibility of evidence of advance payment

A. During trial of any action brought for damages for personal injuries or for wrongful death or for damage or destruction of property, evidence of an advance payment made by a defendant or any person acting on behalf of a defendant to or for the benefit of any person having or asserting a claim for such damages against such defendant, arising from the same event or occurrence out of which the claim, which is the subject of such action arose, shall not be received in evidence.

B. If judgment is entered against a defendant by whom or on whose behalf an advance payment has been made and in favor of a plaintiff to whom or for whose benefit an advance payment has been made, such defendant shall be entitled to a reduction of the amount of damages awarded to such plaintiff equal to the amount or value of such advance payments as may be found by the court to have been made. However, in no event shall a person who has made such advance payments be entitled to reimbursement for amount paid in excess of the damages awarded to such plaintiff or in the event such plaintiff fails to recover judgment in his favor.

C. An advance payment shall not operate to toll or extend the period of limitation otherwise applicable to any such action.

Article 9 Silent Witness Program Records

§ 12-2311 Definition of silent witness or crime stopper program

In this article, unless the context otherwise requires, "silent witness or crime stopper program" means a program which meets each of the following requirements:

1. The purpose of the program is to obtain information on wanted persons, felony crimes and other criminal activity.

2. The program forwards the information to the appropriate law enforcement agency.

3. The program expends program monies to provide rewards for information received pursuant to the program.

4. The program allows the person submitting a report to remain anonymous.

5. The program operates in conjunction with a certified law enforcement agency or county attorney's office.

§ 12-2312 Silent witness or crime stopper program records; disclosure prohibited; exception

A. A record of a communication between a person who submits a report of criminal activity to a silent witness, crime stopper or operation game thief program administered by a police department, a sheriff's department, a county attorney's office or the Arizona game and fish department and the person who accepted the report on behalf of the silent witness program is not a public record.

B. Except as otherwise provided in this section, disclosure of information that might be used to identify an individual submitting a tip under this section is prohibited if the individual submitting the tip did so anonymously. All tips that do not include the full name of the individual submitting the tip shall be deemed submitted anonymously. This section does not prohibit a prosecutor in a criminal case from disclosing any information if the disclosure is required by a constitutional, legal or ethical duty. If a prosecutor in a criminal case possesses information that might be used to identify an individual who anonymously submitted a tip under this section and disclosure of that information is not required by a constitutional, legal or ethical duty, the prosecutor shall make reasonable efforts to ensure the information is not disclosed.

C. No portion of any record maintained by a silent witness, crime stopper or operation game thief program or organization that might be used to identify an individual who submitted a tip anonymously under this section shall be subject to compulsory production except on a motion that is filed in the superior court where a complaint concerning the alleged event has been filed, or if no complaint has been filed, the county where the alleged event occurred and that establishes good cause for disclosure. The party filing the motion has the burden to show good cause for the disclosure. Good cause may include reason to believe that the tip was motivated by bias or animus or that disclosure is reasonably necessary to investigate a defense to the allegation or the potential sentence if convicted. This section does not prohibit a prosecutor in a criminal case from disclosing any information if the disclosure is required by a constitutional, legal or ethical duty.

D. If a motion to disclose the tip information pursuant to subsection C of this section is granted, the court shall authorize the grant of a subpoena by the moving party to obtain the information. This section does not expand the scope of discovery available under any Arizona court rules.

E. A silent witness, crime stopper or operation game thief program or organization shall retain tip materials submitted to them in writing by individuals submitting a report of criminal activity until at least the first anniversary of either of the following, whichever occurs last:

1. The date of expiration for all appeals and postconviction relief matters in a criminal proceeding or the expiration of the defendant's sentence.

2. The date the plaintiff's appeal rights are exhausted in a civil proceeding.

Article 10 Health and Safety Audit Privilege

§ 12-2321 Definitions

In this article, unless the context otherwise requires:

1. "Actual harm" means damage, loss or injury.

2. "Audit report" means an audit report, prepared by an organization, as prescribed by section 12-2322.

3. "Health or safety law" means a federal, state or local statute, rule, regulation or ordinance, or a permit issued under a federal, state or local statute, rule, regulation or ordinance, that relates to occupational health, health or safety.

4. "Organization" means a public or private company, corporation, political subdivision organized under title 48 of this code, firm, enterprise or institution, or any part or combination of these entities, whether incorporated or not, that has its own functions and administration. If an organization has more than one operating unit, a single operating unit may be an organization.

5. "Person" means an individual, employee, officer, managing body, trust, firm, joint stock company, consortium, public or private corporation, including a government corporation, partnership, association, state, political subdivision of this state or commission or the United States government, a federal facility, an interstate body or any other entity.

6. "Regulated facility or operation" means a facility or operation that is regulated under a health or safety law.

§ 12-2322 Audit report; contents

A. Except for an item described in section 12-2326, an audit report shall include each document and communication that is created for an audit to evaluate an organization's compliance with a health or safety law or an industry standard of excellence with respect to safety, reliability or training.

B. An audit report may include the following:

1. A report prepared by an auditor, consultant, monitor or other individual acting in a similar role, which may include:

(a) A description of the scope of the audit.

(b) The information gained in the audit and findings, conclusions and recommendations.

(c) Exhibits and appendices.

2. Memoranda and documents that analyze all or a portion of the materials described by subsection C, paragraph 1 of this section or that discuss implementation issues.

3. An implementation plan or tracking system to correct past noncompliance, improve current compliance or prevent future noncompliance.

4. An evaluation, assessment or accreditation of an organization's facilities, operations or training programs relative to that industry's standards of excellence in safety, reliability or training.

C. The types of exhibits and appendices that may be contained in an audit report include supporting information that is collected or developed for the primary purpose of and gathered in the course of a health or safety audit, including:

1. Interviews with current or former employees.

2. Field notes and records of observations.

3. Findings, opinions, suggestions, conclusions, guidance, notes, drafts and memoranda.

4. Legal analyses.

5. Drawings.

6. Photographs.

7. Laboratory analyses and other analytical data.

8. Computer generated or electronically recorded information.

9. Maps, charts, graphs and surveys.

10. Other communications associated with a health or safety audit.

D. To facilitate identification, each document in an audit report may be labeled "compliance report: privileged document" or with words of similar import. The failure to label a document does not constitute a waiver of the audit privilege or create a presumption that the privilege does or does not apply.

E. An audit shall be completed within a reasonable time not to exceed six months from when it is begun, unless an extension is based on reasonable grounds.

§ 12-2323 Privilege

A. Except as provided in sections 12-2324, 12-2325 and 12-2326, any part of an audit report conducted by an organization is privileged and is not admissible as evidence or subject to discovery in any of the following:

1. A legal or an equitable civil action.

2. An administrative proceeding.

B. If called or subpoenaed as a witness, a person cannot be compelled to testify or produce a document related to an audit if both of the following apply:

1. The testimony or document discloses any privileged part of an audit report.

2. The person is:

(a) A person who conducted any portion of the audit but who did not personally observe the physical events.

(b) A person to whom the audit results are disclosed under section 12-2324, subsection B.

(c) A custodian of the audit results.

C. A person who conducts or participates in the preparation of an audit report and who has actually observed physical events of violation may testify regarding those events but may not be compelled to testify about or produce documents related to any privileged part of an audit report.

D. A state agency employee shall not request, review or otherwise use any privileged part of an audit report during an agency inspection of a regulated facility or operation or an activity of a regulated facility or operation.

E. A party asserting the privilege prescribed in this section has the burden of establishing the applicability of the privilege.

§ 12-2324 Waiver; exception; penalties

A. The privilege prescribed in section 12-2323 does not apply to the extent the privilege is expressly waived by the owner or operator who prepared the audit report or caused the report to be prepared.

B. Disclosure of an audit report or any information generated by a health or safety audit does not waive the privilege, if the disclosure complies with any of the following:

1. Is made to address or correct a matter raised by the health or safety audit and is made only to:

(a) An individual employed by the owner or operator, including a temporary or contract employee.

(b) A legal representative of the owner or operator.

(c) An officer or director of the regulated facility or operation or a partner of the owner or operator.

(d) An independent contractor retained by the owner or operator, including the owner's or operator's independent external auditors.

2. Is made under the terms of a confidentiality agreement between the organization for whom the audit report was prepared or the owner or operator of the regulated facility or operation and any of the following:

(a) A partner or potential partner of the owner or operator of the regulated facility or operation.

(b) A transferee or potential transferee of the regulated facility or operation.

(c) A lender or potential lender for the regulated facility or operation.

(d) A state government official.

(e) A person or entity engaged in the business of insuring, underwriting or indemnifying the facility or operation.

3. Is made under a confidentiality agreement to a government official or agency by the organization for whom the audit report was prepared or by the owner or operator.

C. A party to a confidentiality agreement described in subsection B, paragraph 2 of this section who violates the confidentiality agreement is liable for damages caused by the disclosure and for any other penalties prescribed in the confidentiality agreement.

D. Information that is disclosed under subsection B, paragraph 3 of this section is confidential and shall not be disclosed. An entity, employee or official of this state who knowingly or intentionally discloses information in violation of this subsection is subject to sanctions as prescribed by the rules of civil procedure or to a civil penalty not to exceed ten thousand dollars. The lack of labeling may not be raised as a defense if the entity, employee or official knew or had reason to know that the document was a privileged audit report.

E. This section shall not be construed to circumvent the protections provided by federal or state law for individuals who disclose information to enforcement authorities.

§ 12-2325 Disclosure required by court or administrative hearing; appeals; sanctions

A. A court or administrative hearing officer with competent jurisdiction may require disclosure of a portion of an audit report in a civil or administrative proceeding if the court or administrative hearing officer determines after an in camera review that any of the following applies:

1. The privilege is asserted for a fraudulent purpose.

2. The portion of the audit report is not subject to the privilege under section 12-2326.

3. The portion of the audit report shows evidence of noncompliance with a health or safety law and appropriate efforts to achieve compliance with the law were not promptly initiated and pursued with reasonable diligence after the discovery of the noncompliance.

B. A party seeking disclosure under this section has the burden of proving that subsection A of this section applies.

C. Notwithstanding any other law, a disclosure decision of an administrative hearing officer under subsection A of this section is directly appealable to a court of competent jurisdiction without disclosure of the audit report to any person unless disclosure is ordered by the court.

D. An organization claiming the privilege is subject to sanctions as prescribed by the rules of civil procedure or to a civil penalty not to exceed ten thousand dollars, if the court finds that the organization intentionally or knowingly claimed the privilege for nonprivileged materials prescribed in section 12-2326.

E. A court determination under this section is subject to interlocutory appeal to the court of appeals.

§ 12-2326 Nonprivileged materials

A. The privilege prescribed in this article does not apply to:

1. A document, communication, datum or report or other information required by a regulatory agency to be collected, developed, maintained or reported under a health or safety law.

2. Information obtained by observation, sampling or monitoring by a regulatory agency.

3. Information obtained from a source not involved in the preparation of the health or safety audit report.

B. This section does not limit the right of an organization to agree to conduct and disclose an audit report.

§ 12-2327 Review of privileged document by governmental authority

A. If an audit report is obtained, reviewed or used in a criminal proceeding, the privilege prescribed in this article is not waived or eliminated for any other purpose.

B. Notwithstanding the privilege prescribed in this article, a regulatory agency may review information in an audit report that is required to be available under a specific state or federal law, but that review does not waive or eliminate the privilege except for materials prescribed in section 12-2326.

C. If information is required to be available to the public by operation of a specific state or federal law, the governmental authority shall notify the organization claiming the privilege of the potential for public disclosure before obtaining that information pursuant to subsection A or B of this section.

D. If privileged information is disclosed under subsection B or C of this section, on the motion of a party, a court or the appropriate administrative official shall suppress evidence offered in any civil or administrative proceeding that arises or is derived from review, disclosure or use of information obtained under this section if the review, disclosure, or use is not authorized under section 12-2326. A party that has received information under subsection B or C of this section has the burden of proving that the evidence offered did not arise and was not derived from the review of privileged information.

§ 12-2328 Construction

A. This article does not provide civil or criminal immunity to an organization or to affect any other privilege that may be available by law.

B. This article does not apply to a health professional as defined in section 32-3201 or a health care institution as defined in section 36-401.

Chapter 14 Provisional Remedies

Article 1 General Provisions

§ 12-2401 Definitions

In this article, unless the context otherwise requires:

1. "Party" means any plaintiff or defendant in any civil action, in any superior or justice court of this state.

2. "Property" means any present or future interest in wages, real estate, goods, chattels or choses in action whether such interest is vested or contingent.

3. "Provisional remedy" means the remedies of attachment, garnishment or replevin, but shall not include garnishment of wages.

§ 12-2402 Provisional remedies without notice; grounds for issuance

A. Any provisional remedy may be issued by any judge of the superior court or justice of the peace of this state before judgment and without prior notice to the party against whom it will operate in any of the following cases:

1. When the party against whom the provisional remedy is sought is about to remove permanently from the state and has refused to secure the debt, or when such party has secreted property for the purpose of defrauding creditors, or that such party has disposed of property, wholly or in part, with intent to defraud creditors, or that such party is about to dispose of property with intent to defraud creditors.

2. When the moving party is the owner or lessor or otherwise is lawfully entitled to the possession of the property claimed, has satisfied the requirements of sections 12-1301 and 12-1303, and is seeking a provisional remedy in the nature of replevin, except that a provisional remedy under this section may not be obtained to enforce a security interest in consumer goods which is not a purchase money security interest.

3. When any provisional remedy is required to obtain jurisdiction.

B. Before any provisional remedy shall issue, the party seeking such remedy shall establish with particularity by affidavit to the court's satisfaction sufficient facts supporting the party's claim and establish that one of the requirements of subsection A of this section has been met and that such party will file such other pleadings or affidavits as are required by law as a prerequisite to the issuance of any provisional remedy sought.

C. When a provisional remedy is issued, the party against whom it will operate may immediately move to quash such order and the court or justice of the peace shall hear such motion within five days, exclusive of weekends and holidays. The issues at such hearing shall be limited to the following:

1. The probable validity of the claim or claims of the party seeking the provisional remedy and any defenses and claims of personal property exemptions of the party against whom such provisional remedy will operate.

2. The existence of any statutory requirement for the issuance of any provisional remedy sought, plus the existence of any grounds in subsection A of this section.

D. The party seeking the provisional remedy shall at the time of the seizure, attachment or garnishment, or within three days thereafter, exercise reasonable diligence to serve the party against whom a provisional remedy is sought with notice of the seizure, the impound or such other act ordered by the court and of said party's right to an immediate hearing contesting the same.

E. Upon the filing of an application as provided in this section, the justice of the peace or any clerk of the superior court shall issue a notice directed to any party against whom any provisional remedy would operate, substantially in the following form:

"Notice

You are hereby notified that your (property) is being taken away from you by (party seeking provisional remedy) , who says that you owe (such party) a debt of $ (amount) . (Party seeking provisional remedy) is taking your property because (such party) says:

(a) That you were about to remove permanently from the state and refused to secure the debt, or

(b) That you had secreted property for the purpose of defrauding creditors, or

(c) That you had disposed of property, wholly or in part, with intent to defraud creditors, or were about to dispose of property with intent to defraud creditors, or

(d) That (party seeking provisional remedy) claims the right of possession to your property under a purchase money security interest.

If you disagree and think you do not owe (party seeking provisional remedy), or that you have not done any of the things which (party seeking provisional remedy) said you did or were about to do, then you can ask a court to hear your side of the story and give your property back to you. If you want such a hearing, it will be given to you within five working days after you ask for it. Just check the box at the bottom of this notice and mail it or take it to the court or division of the court, at the following address: (address of court or division of the court) . You must also send a copy to (party seeking provisional remedy) at (address) , so that (party seeking provisional remedy) knows you want the hearing."

§ 12-2403 Provisional remedies with notice; grounds

Except as provided in section 12-2402, no provisional remedy shall be issued by any judge or justice of the peace until:

1. All statutory requirements for the issuance of such provisional remedy have been complied with by the party seeking such remedy.

2. An application and notice for issuance of any provisional remedy has been filed with the clerk of the court and a copy of such notice and application have been served on the party against whom any remedy will operate.

3. The party against whom any provisional remedy is sought has been afforded an opportunity for a hearing or a hearing has been held as provided in this article.

§ 12-2404 Application for provisional remedy with notice

A. A party may at any time after the filing of a civil action make application, under oath, to the court to issue any provisional remedy allowed by law.

B. Such application shall be filed with the judge, justice of the peace or clerk of any superior or justice court and shall set forth the factual and legal basis for each provisional remedy sought.

§ 12-2405 Notice; form of notice

Upon the filing of an application as provided in section 12-2404, the justice of the peace or clerk of any superior court shall issue a notice directed to any party against whom any provisional remedy would operate substantially in the following form:

"NOTICE

You are hereby notified that your (property) may be taken away from you by (party seeking provisional remedy), who says that you owe (such party) a debt of $(amount). (Party seeking provisional remedy), your creditor, wants to take your property so that (such party) can be sure you will pay if the court decides that you owe money to (party seeking provisional remedy). If you do not want to have your property taken away, you may ask for a hearing before a court. You may ask for the hearing anytime in the next ten days. The hearing will take place within five working days after you ask for it. You may ask for the hearing by checking the box at the bottom of this notice and filing it with the court or division of the court, at the following address: (address of court or division of the court). You must also send a copy to (party seeking provisional remedy) at (address), so that (such party) knows you want the hearing. At the hearing the court will decide whether the claim against you is probably valid and whether other legal requirements have been met. If you do not check the box requesting a date for a hearing and take this notice to the court within ten days, the court will automatically assume you do not want a hearing and you will lose your right to a hearing. Then (party seeking provisional remedy) may take your property with the court's permission."

§ 12-2406 Service of notice and application

A. A copy of the notice as set forth in sections 12-2402 and 12-2405 and a copy of the application for issuance of any provisional remedy shall be served on each party against whom any remedy will operate in the manner prescribed by law for service of a summons and complaint.

B. The notice and application shall be served by any sheriff, constable or private process server and return shall be made as in the case of a summons and complaint.

C. At the time of serving the notice as set forth in sections 12-2402 and 12-2405, the following notice in English and Spanish shall be served: "Notice! A lawsuit has been filed against you. In order to protect your rights, please read carefully the other papers which were served upon you with this notice!"

§ 12-2407 Time to request hearing date; form of request

A. Each party served with a copy of the notice set forth in section 12-2405 and an application for any provisional remedy may request a date be set for the hearing on such application by filing with the clerk of the court within ten days after service of the notice a written request for hearing date. A copy of such request for hearing date shall be mailed by the clerk to the attorney for or the party seeking the provisional remedy.

B. The request for hearing date shall be in writing, but need not set forth defensive matter. It shall only indicate that a date for hearing be set and need not be under oath.

§ 12-2408 Default

A. If no request for hearing date is filed within the time provided by section 12-2407, the party seeking any provisional remedy, or that party's attorney, shall file an affidavit of default setting forth that service was made, that no request for hearing date was filed and that the party against whom any provisional remedy is sought is in default. Such party, or that party's attorney, shall also file a proposed form of the written order required by section 12-2409, subsections B and C. Upon filing of such affidavit, the clerk shall enter the default of record and any party so defaulted loses such party's right to a hearing.

B. If the action is pending in superior court, the clerk upon entry of default shall immediately deliver the court file to the judge to whom the matter is assigned.

C. If the action is pending in justice court, the clerk shall upon entry of default immediately deliver the court file to the justice of the peace.

§ 12-2409 Judicial review of application; issuance of provisional remedies

A. The judge or justice of the peace shall within five days, exclusive of weekends and holidays, after entry of default as provided in section 12-2408, review and examine all pleadings, affidavits and documents filed in the action to determine the following:

1. That an affidavit has been filed by the person who served a copy of the application and notice evidencing service.

2. That the affidavit of default required by section 12-2408 has been filed and the default entered by the clerk.

3. That the claim or claims of the party seeking any provisional remedy are based on facts stated in the affidavit sufficient to show that such claim or claims are valid.

4. That any statutory requirement for the issuance of any provisional remedy sought exists.

5. That any other pleadings or affidavits required by law as a prerequisite for the issuance of any provisional remedy sought have been filed.

B. If the judge or justice of the peace finds that the requirements of subsection A have been met, the provisional remedy shall be issued.

C. Written findings that the requirements of subsection A have been met shall be included in the order issuing any provisional remedy.

§ 12-2410 Hearing; procedure; issues

A. Upon filing of a request for hearing pursuant to section 12-2407, the party seeking any provisional remedy or the court shall cause the matter to be set for hearing.

B. Hearing shall be before a judge or justice of the peace and shall be heard no later than five days exclusive of weekends or holidays after the filing of a request for a hearing date, or at a later time with the consent of all parties.

C. Any hearing on an application for any provisional remedy shall be limited to the following issues:

1. The probable validity of the applicant's claim or claims and any defenses and claims of personal property exemptions of the party against whom such provisional remedy will operate.

2. The existence of any statutory requirements for the issuance of any provisional remedies sought.

D. If after hearing the court finds probable cause to believe the claim of the applicant is valid and that the statutory requirements for any provisional remedy have been met, such remedy shall be issued forthwith.

§ 12-2411 Attorney's fees

If a hearing is held pursuant to section 12-2402, subsection C, or section 12-2410 and the provisional remedy ordered issued is quashed or no provisional remedy is ordered issued the court may award reasonable attorney's fees to the party against whom the provisional remedy was issued or was sought to be issued.

§ 12-2412 Waiver of right to a hearing void

Notwithstanding any agreement to the contrary, a waiver of the right to a hearing provided by this article shall be void and unenforceable.

Chapter 15 Emancipation of Minors

Article 1 General Provisions

§ 12-2451 Petition for emancipation order; requirements; notification; representation; waiver of filing fees

A. A minor who wishes to be emancipated may file a petition for an emancipation order with the clerk of the court in the county in which the minor resides if all of the following apply:

1. The minor is at least sixteen years of age.

2. The minor is a resident of this state.

3. The minor is financially self-sufficient.

4. The minor acknowledges in writing that the minor has read and understands information that is provided by the court and that explains the rights and obligations of an emancipated minor and the potential risks and consequences of emancipation.

B. A petition filed pursuant to this section must contain the following:

1. The petitioner's name, mailing address, social security number and date of birth.

2. The name and mailing address of the petitioner's parent or legal guardian, if known.

3. Specific facts to support the petition, including:

(a) The minor's demonstrated ability to manage the minor's financial affairs including proof of employment or other means of support.

(b) The minor's demonstrated ability to manage the minor's personal and social affairs, including proof of housing.

(c) The minor's demonstrated ability to live wholly independent of the minor's parent.

(d) The minor's demonstrated ability and commitment to obtain or maintain education, vocational training or employment.

(e) How the minor will obtain or maintain health care.

(f) Any other information considered necessary to support the petition.

(g) At least one of the following:

(i) Documentation that the minor has been living on the minor's own for at least three consecutive months.

(ii) A statement explaining why the minor believes the home of the minor's parent or legal guardian is not a healthy or safe environment.

(iii) A notarized statement that contains written consent to the emancipation and an explanation by the minor's parent or legal guardian.

(h) Whether the minor has obtained an offer of employment.

C. The court shall hold a hearing on the petition within ninety days after the date of its filing and shall notify the petitioner and the petitioner's parent or legal guardian of the date and place of the hearing by certified mail at least sixty days before the hearing date. For good cause shown, the court may continue the initial emancipation hearing.

D. The minor's parent or legal guardian may file a written response objecting to the emancipation within thirty days after service of the notice of the hearing.

E. The minor may participate in the court proceedings on the minor's own behalf or be represented by an attorney chosen by the minor. If the court determines it necessary, the court may appoint a guardian ad litem for the petitioner.

F. The court may reduce or waive the fee prescribed in section 12-284 for filing a petition for emancipation of a minor for financial hardship.

§ 12-2452 Additional court orders

A. Before an emancipation case proceeds, the court may stay the proceedings and:

1. Refer the parties to mediation.

2. If the court reasonably believes that the petition contains an allegation of child abuse or neglect, require the department of child safety to investigate the allegation and make a written report of the investigation to the court.

B. If the minor's parent or legal guardian objects to the petition for emancipation, the court shall stay the proceeding and refer the parties to mediation or alternative dispute resolution unless the court reasonably believes that mediation would not be in the best interest of the minor. The court may consider any of the following:

1. The minor's parent or legal guardian has been convicted of abuse, neglect or abandonment.

2. The minor's parent or legal guardian is named as a perpetrator of abuse, neglect or abandonment in the protective services central registry pursuant to section 8-804.

3. Any other information the court deems relevant.

C. If agreement is reached through mediation, the parties shall submit the signed mediation agreement to the court.

§ 12-2453 Factors; best interests of minor; burden of proof; emancipation orders; filing requirements

A. The court shall determine emancipation based on the best interests of the minor and shall consider all relevant factors, including:

1. The potential risks and consequences of emancipation and to what degree the minor understands these risks and consequences.

2. The wishes of the minor.

3. The opinions and recommendations of the minor's parent or legal guardian.

4. The financial resources of the minor, including the minor's employment history.

5. The minor's ability to be financially self-sufficient.

6. The minor's level of education and the minor's success in school.

7. Whether the minor has a criminal record.

8. Whether the minor has obtained an offer of employment.

B. The minor has the burden of proof by clear and convincing evidence.

C. The court shall file an emancipation order with the clerk of the court and issue a copy of the order to the minor and the department of economic security or its agent, if the minor is a child in a title IV-D case.

D. An emancipation order issued by a court pursuant to this article:

1. Is conclusive evidence that the minor is emancipated.

2. Terminates a dependency action as to the minor by operation of law.

§ 12-2454 Effect of emancipation

A. An emancipation order issued pursuant to this article recognizes the minor as an adult for the following purposes:

1. The right to enter into a binding contract.

2. The ability to sue and be sued.

3. The right to buy and sell real property.

4. The right to establish a legal residence.

5. The obligation to pay child support.

6. The right to incur debts.

7. The right to access medical treatment and records.

8. The right to consent to medical, dental and psychiatric care without parental consent, knowledge or liability.

9. The right to consent to medical, dental and psychiatric care for the emancipated minor's child.

10. Eligibility for social services.

11. The right to obtain a license to operate equipment or perform a service.

12. The right to apply for enrollment in any school or college.

13. The ability to apply for loans.

14. The ability to pursue any other opportunity that is provided by law to a person who is at least eighteen years of age.

B. An emancipation order issued pursuant to this article terminates a parent's or legal guardian's:

1. Right to the emancipated minor's income.

2. Future child support obligations relating to the emancipated minor.

3. Tort liability for the emancipated minor's actions.

4. Obligation to financially support the emancipated minor after the first day of the month following entry of this order.

5. Obligation to provide medical support for the emancipated minor.

§ 12-2455 Recognition of emancipation from another jurisdiction

This state shall recognize a minor as an emancipated minor if that minor can document emancipation from another jurisdiction of the United States and is at least sixteen years of age.

§ 12-2456 Emancipation administrative costs fund; purpose; report; collection of information

A. Each county treasurer shall establish an emancipation administrative costs fund consisting of monies received pursuant to section 12-284, subsection J.

B. The presiding judge of the juvenile court shall use fund monies for administrative costs associated with this article.

C. On notice of the presiding judge, the county treasurer shall invest monies in the fund and monies earned from investment shall be credited to the fund.

D. On or before November 15 of each year, the county treasurer shall submit a report to the presiding judge that shows the amount of monies in the fund. Beginning July 1, 2011, the report shall be submitted electronically.

E. Beginning October 1, 2005, the administrative office of the courts shall collect information relating to emancipation of minors pursuant to this chapter, including the following:

1. The number of petitions filed, by age and county of residence.

2. The number of petitions granted, by age and county of residence.

F. The administrative office of the courts shall include the information collected pursuant to subsection E of this section in the annual report of the judicial department.

Chapter 16 Uniform Contribution Among Tortfeasors Act

Article 1 General Provisions

§ 12-2501 Right to contribution; definition

A. Except as otherwise provided in this article, if two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.

B. The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability.

C. There is no right of contribution in favor of any tortfeasor who the trier of fact finds has intentionally, wilfully or wantonly caused or contributed to the injury or wrongful death.

D. A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which is in excess of what was reasonable.

E. A liability insurer, which by payment has discharged in full or in part the liability of a tortfeasor and has thereby discharged in full its obligation as insurer, is subrogated to the tortfeasor's right of contribution to the extent of the amount it has paid in excess of the tortfeasor's pro rata share of the common liability. This subsection does not limit or impair any right of subrogation arising from any other relationship.

F. This section and sections 12-2502, 12-2503, 12-2504, 12-2508 and 12-2509 do not:

1. Impair any right of indemnity under existing law. If one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from any obligee for any portion of his indemnity obligation.

2. Apply to breaches of trust or of other fiduciary obligation.

3. Create a right of contribution against an employer or other person who has paid or who is liable for workmen's compensation in connection with an injury or death pursuant to title 23, chapter 6, unless the employer or other person is subject to direct suit under section 23-1022. For purposes of determining the amount of pro rata shares under this article, any employer or other person who has paid or who is liable for workmen's compensation shall not be considered unless the employer or other person is subject to direct suit under section 23-1022.

G. As used in this article, "property damage" means both physical damage to tangible property and economic loss proximately caused by a breach of duty.

§ 12-2502 Pro rata shares

In determining the pro rata share of tortfeasors in the entire liability:

1. Their relative degrees of fault are the basis for allocation.

2. If equity requires, the collective liability of some as a group constitutes a single share.

3. Principles of equity applicable to contribution generally apply.

§ 12-2503 Enforcement

A. Whether or not judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced by separate action.

B. If a judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced in that action by judgment in favor of one against other judgment defendants by motion on notice to all parties to the action.

C. If there is a judgment for the injury or wrongful death against the tortfeasor seeking contribution, any separate action by him to enforce contribution must be commenced within one year after the judgment has become final by lapse of time for appeal or after appellate review.

D. If there is no judgment for the injury or wrongful death against the tortfeasor seeking contribution, his right of contribution is barred unless he has either:

1. Discharged by payment the common liability within the statute of limitations period applicable to the claimant's right of action against him and has commenced his action for contribution within one year after payment.

2. Agreed while action is pending against him to discharge the common liability and has within one year after the agreement paid the liability and commenced his action for contribution.

E. The recovery of a judgment for an injury or wrongful death against one tortfeasor does not of itself discharge the other tortfeasors from liability for the injury or wrongful death unless the judgment is satisfied. The satisfaction of the judgment does not impair a right of contribution.

F. The judgment of the court in determining the liability of the several defendants to the claimant for an injury or wrongful death is binding as among the defendants in determining their right to contribution. If the claimant's case is tried, the trier of fact shall apportion and determine the respective degrees of fault of the defendants to the action.

§ 12-2504 Release or covenant not to sue

If a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death both of the following apply:

1. It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant or in the amount of the consideration paid for it, whichever is the greater.

2. It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.

§ 12-2505 Comparative negligence; definition

A. The defense of contributory negligence or of assumption of risk is in all cases a question of fact and shall at all times be left to the jury. If the jury applies either defense, the claimant's action is not barred, but the full damages shall be reduced in proportion to the relative degree of the claimant's fault which is a proximate cause of the injury or death, if any. There is no right to comparative negligence in favor of any claimant who has intentionally, wilfully or wantonly caused or contributed to the injury or wrongful death.

B. In this section, "claimant's fault" includes the fault imputed or attributed to a claimant by operation of law, if any.

§ 12-2506 Joint and several liability abolished; exception; apportionment of degrees of fault; definitions

A. In an action for personal injury, property damage or wrongful death, the liability of each defendant for damages is several only and is not joint, except as otherwise provided in this section. Each defendant is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be entered against the defendant for that amount. To determine the amount of judgment to be entered against each defendant, the trier of fact shall multiply the total amount of damages recoverable by the plaintiff by the percentage of each defendant's fault, and that amount is the maximum recoverable against the defendant.

B. In assessing percentages of fault the trier of fact shall consider the fault of all persons who contributed to the alleged injury, death or damage to property, regardless of whether the person was, or could have been, named as a party to the suit. Negligence or fault of a nonparty may be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice before trial, in accordance with requirements established by court rule, that a nonparty was wholly or partially at fault. Assessments of percentages of fault for nonparties are used only as a vehicle for accurately determining the fault of the named parties. Assessment of fault against nonparties does not subject any nonparty to liability in this or any other action, and it may not be introduced as evidence of liability in any action.

C. The relative degree of fault of the claimant, and the relative degrees of fault of all defendants and nonparties, shall be determined and apportioned as a whole at one time by the trier of fact. If two or more claimants have independent claims, a separate determination and apportionment of the relative degrees of fault of the respective parties, and any nonparties at fault, shall be made with respect to each of the independent claims.

D. The liability of each defendant is several only and is not joint, except that a party is responsible for the fault of another person, or for payment of the proportionate share of another person, if any of the following applies:

1. Both the party and the other person were acting in concert.

2. The other person was acting as an agent or servant of the party.

3. The party’s liability for the fault of another person arises out of a duty created by the federal employers' liability act, 45 United States Code section 51.

E. If a defendant is found jointly and severally liable pursuant to subsection D, the defendant has the right to contribution pursuant to this chapter. In an action arising out of a duty created by the federal employers' liability act (45 United States Code section 51), a person or entity, other than an employee of the defendant, whose negligence or fault caused or contributed to the plaintiff's injury or death shall contribute to the defendant pursuant to this chapter. An action for contribution shall be adjudicated and determined by the same trier of fact that adjudicates and determines the action for the plaintiff's injury or death. The trier of fact shall adjudicate and determine an action for contribution after the court enters a judgment for the plaintiff's injury or death. On motion before the conclusion of the trial, the plaintiff is entitled to an award against the defendant for actual expenses the plaintiff incurred as a direct result of the defendant's claim for contribution. The expenses shall include reasonable attorney fees as determined by the court.

F. For the purposes of this section:

1. "Acting in concert" means entering into a conscious agreement to pursue a common plan or design to commit an intentional tort and actively taking part in that intentional tort. Acting in concert does not apply to any person whose conduct was negligent in any of its degrees rather than intentional. A person's conduct that provides substantial assistance to one committing an intentional tort does not constitute acting in concert if the person has not consciously agreed with the other to commit the intentional tort.

2. "Fault" means an actionable breach of legal duty, act or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all of its degrees, contributory negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability and misuse, modification or abuse of a product.

§ 12-2507 Treatment of counterclaims and cross claims

A counterclaim or cross claim for injury to person or property or for wrongful death shall be treated as an independent claim for purposes of section 12-2506. A claim and counterclaim shall not be set off against each other except by agreement of both parties.

§ 12-2508 Redetermination of contribution shares

On motion made not later than one year after a judgment imposing joint and several liability and determining contribution rights is entered, the court shall determine whether all or part of a tortfeasor's contribution share under section 12-2502 is uncollectible from that tortfeasor. If a contribution share is totally or partially uncollectible, the court shall redetermine the contribution shares of the other tortfeasors so that the uncollectible contribution amount is paid, based on the ratio of the percentages of the contribution shares of the other tortfeasors. The court's order redetermining the contribution shares shall include a judgment for the uncollectible amount against the tortfeasor whose share is totally or partially uncollectible and in favor of the other tortfeasors.

§ 12-2509 Scope of contribution and comparative negligence

A. The right to contribution under sections 12-2501 through 12-2504 applies to all tortfeasors whose liability is based on negligence, strict liability in tort or any product liability action, as defined in section 12-681, including warranty.

B. If an action involves claims for relief alleging both negligence and strict liability in tort, and if section 12-2505 is applied with respect to the negligence claims for relief, the reduction in damages under section 12-2505 shall be applied to the damages awarded against all defendants, except that contributory negligence, as distinguished from assumption of risk, is not a defense to a claim alleging strict liability in tort, including any product liability action, as defined in section 12-681, except claims alleging negligence.

C. For purposes of section 12-2502, section 12-2503, subsection F and section 12-2505 with respect to cases involving assumption of risk, the relative degree of fault of a person strictly liable in tort is the defect causing injury to the claimant. Among two or more persons strictly liable in tort who are entitled to claim contribution against each other, the relative degree of fault of each is the degree to which each contributed to the defect causing injury to the claimant.

Chapter 17 Claims Against Licensed Professionals

Article 1 General Provisions

§ 12-2601 Definitions

In this article, unless the context otherwise requires:

1. "Claim" means a legal cause of action except for actions relating to health care under sections 12-561 through 12-563 of this title or under title 46, chapter 4 or an affirmative defense to which all of the following apply:

(a) The claim is asserted against a licensed professional in a complaint, answer, cross-claim, counterclaim or third party complaint.

(b) The claim is based on the licensed professional's alleged breach of contract, negligence, misconduct, errors or omissions in rendering professional services.

(c) Expert testimony is necessary to prove the licensed professional's standard of care or liability for the claim.

2. "Expert" means a person who is qualified by knowledge, skill, experience, training or education to express an opinion regarding a licensed professional's standard of care or liability for the claim.

3. "Licensed professional" means a person, corporation, professional corporation, partnership, limited liability company, limited liability partnership or other entity that is licensed by this state to practice a profession or occupation under title 20 or 32 or that is admitted to the state bar.

§ 12-2602 Preliminary expert opinion testimony; certification

A. If a claim against a licensed professional is asserted in a civil action, the claimant or the claimant's attorney shall certify in a written statement that is filed and served with the claim whether or not expert opinion testimony is necessary to prove the licensed professional's standard of care or liability for the claim.

B. If the claimant or the claimant's attorney certifies pursuant to subsection A that expert opinion testimony is necessary, the claimant shall serve a preliminary expert opinion affidavit with the initial disclosures that are required by rule 26.1, Arizona rules of civil procedure. The claimant may provide affidavits from as many experts as the claimant deems necessary. The preliminary expert opinion affidavit shall contain at least the following information:

1. The expert's qualifications to express an opinion on the licensed professional's standard of care or liability for the claim.

2. The factual basis for each claim against a licensed professional.

3. The licensed professional's acts, errors or omissions that the expert considers to be a violation of the applicable standard of care resulting in liability.

4. The manner in which the licensed professional's acts, errors or omissions caused or contributed to the damages or other relief sought by the claimant.

C. The court may extend the time for compliance with this section on application and good cause shown or by stipulation of the parties to the claim. If the court extends the time for compliance, the court may also adjust the timing and sequence of disclosures that are required from the licensed professional against whom the claim is asserted.

D. If the claimant or the claimant's attorney certifies that expert testimony is not required for its claim and the licensed professional who is defending the claim disputes that certification in good faith, the licensed professional may apply by motion to the court for an order requiring the claimant to obtain and serve a preliminary expert opinion affidavit under this section. In its motion, the licensed professional shall identify the following:

1. The claim for which it believes expert testimony is needed.

2. The prima facie elements of the claim.

3. The legal or factual basis for its contention that expert opinion testimony is required to establish the standard of care or liability for the claim.

E. After considering the motion and any response, the court shall determine whether the claimant shall comply with this section and, if the court deems that compliance is necessary, shall set a date and terms for compliance. The court shall stay all other proceedings and applicable time periods concerning the claim pending the court's ruling on the motion to compel compliance with this section.

F. The court, on its own motion or the motion of the licensed professional, shall dismiss the claim against the licensed professional without prejudice if the claimant fails to file and serve a preliminary expert opinion affidavit after the claimant or the claimant's attorney has certified that an affidavit is necessary or the court has ordered the claimant to file and serve an affidavit.

G. A claimant may supplement a claim or preliminary expert opinion affidavit with additional claims, evidence or expert opinions that are timely disclosed under the Arizona rules of civil procedure or pursuant to court order. An action under this chapter does not preclude a party from using a preliminary expert opinion affidavit for any purpose, including impeachment.

§ 12-2603 Preliminary expert opinion testimony against health care professionals; certification; definitions

A. If a claim against a health care professional is asserted in a civil action, the claimant or the party designating a nonparty at fault or its attorney shall certify in a written statement that is filed and served with the claim or the designation of nonparty at fault whether or not expert opinion testimony is necessary to prove the health care professional's standard of care or liability for the claim.

B. If the claimant or the party designating a nonparty at fault or its attorney certifies pursuant to subsection H of this section that expert opinion testimony is necessary, the claimant shall serve a preliminary expert opinion affidavit with the initial disclosures that are required by rule 26.1, Arizona rules of civil procedure. If a party designates a nonparty at fault and certifies pursuant to subsection H of this section that expert opinion testimony is necessary, that party shall serve a preliminary expert opinion affidavit within sixty days after filing the designation. The claimant or the party designating a nonparty at fault may provide affidavits from as many experts as the claimant or the party designating a nonparty at fault deems necessary. The preliminary expert opinion affidavit shall contain at least the following information:

1. The expert's qualifications to express an opinion on the health care professional's standard of care or liability for the claim.

2. The factual basis for each claim against a health care professional.

3. The health care professional's acts, errors or omissions that the expert considers to be a violation of the applicable standard of care resulting in liability.

4. The manner in which the health care professional's acts, errors or omissions caused or contributed to the damages or other relief sought by the claimant.

C. The court may extend the time for compliance with this section on application and good cause shown or by stipulation of the parties to the claim. If the court extends the time for compliance, the court may also adjust the timing and sequence of disclosures that are required from the health care professional against whom the claim is asserted or the designated nonparty at fault.

D. If the claimant or the party designating the nonparty at fault or its attorney certifies that expert testimony is not required for the claim or designation and the claimant, the health care professional or designated nonparty at fault disputes that certification in good faith, the claimant, the health care professional or the designated nonparty at fault may apply by motion to the court for an order requiring the claimant or the party designating the nonparty at fault to obtain and serve a preliminary expert opinion affidavit under this section. In the motion, the claimant, the health care professional or the designated nonparty at fault shall identify the following:

1. The claim for which it believes expert testimony is needed.

2. The prima facie elements of the claim.

3. The legal or factual basis for its contention that expert opinion testimony is required to establish the standard of care or liability for the claim.

E. After considering the motion and any response, the court shall determine whether the claimant or party designating the nonparty at fault shall comply with this section and, if the court deems that compliance is necessary, shall set a date and terms for compliance. The court shall stay all other proceedings and applicable time periods concerning the claim pending the court's ruling on the motion to compel compliance with this section.

F. The court, on its own motion or the motion of the health care professional or designated nonparty at fault, shall dismiss the claim against the health care professional or designated nonparty at fault without prejudice if the claimant or the party designating the nonparty at fault fails to file and serve a preliminary expert opinion affidavit after the claimant or designated nonparty at fault or its attorney has certified that an affidavit is necessary or the court has ordered the claimant or the party designating a nonparty at fault to file and serve an affidavit. Upon any allegation of insufficiency of the affidavit, the court shall allow any party a reasonable time to cure any affidavit, if necessary.

G. A claimant or a party designating a nonparty at fault may supplement a claim or preliminary expert opinion affidavit with additional claims, evidence or expert opinions that are timely disclosed under the Arizona rules of civil procedure or pursuant to court order. A preliminary expert opinion affidavit may be used for impeachment only upon a finding of the court that the facts upon which the affidavit were based have not substantially changed and that the facts were known to the expert at the time the affidavit was prepared.

H. For the purposes of this section:

1. "Claim" means a legal cause of action against a health care professional under sections 12-561 through 12-563 or under title 46, chapter 4 or an affirmative defense or designation of a nonparty at fault to which all of the following apply:

(a) The claim is asserted against a health care professional in a complaint, answer, cross-claim, counterclaim, third party complaint or designation of a nonparty at fault.

(b) The claim is based on the health care professional's alleged breach of contract, negligence, misconduct, errors or omissions in rendering professional services.

(c) Expert testimony is necessary to prove the health care professional's standard of care or liability for the claim.

2. "Expert" means a person who is qualified by knowledge, skill, experience, training or education to express an opinion regarding a licensed health care professional’s standard of care or liability for the claim.

§ 12-2604 Expert witness qualifications; medical malpractice actions

A. In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and the person meets the following criteria:

1. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty or claimed specialty as the party against whom or on whose behalf the testimony is offered. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty.

2. During the year immediately preceding the occurrence giving rise to the lawsuit, devoted a majority of the person's professional time to either or both of the following:

(a) The active clinical practice of the same health profession as the defendant and, if the defendant is or claims to be a specialist, in the same specialty or claimed specialty.

(b) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant and, if the defendant is or claims to be a specialist, in an accredited health professional school or accredited residency or clinical research program in the same specialty or claimed specialty.

3. If the defendant is a general practitioner, the witness has devoted a majority of the witness's professional time in the year preceding the occurrence giving rise to the lawsuit to either or both of the following:

(a) Active clinical practice as a general practitioner.

(b) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant.

B. If the defendant is a health care institution that employs a health professional against whom or on whose behalf the testimony is offered, the provisions of subsection A apply as if the health professional were the party or defendant against whom or on whose behalf the testimony is offered.

C. This section does not limit the power of the trial court to disqualify an expert witness on grounds other than the qualifications set forth under this section.

D. An expert witness in a medical malpractice case shall not be permitted to testify if the fee of the witness is in any way contingent on the outcome of the case.

§ 12-2605 Evidence of admissions; civil proceedings; unanticipated outcomes; medical care

In any civil action that is brought against a health care provider as defined in section 12-561 or in any arbitration proceeding that relates to the civil action, any statement, affirmation, gesture or conduct expressing apology, responsibility, liability, sympathy, commiseration, condolence, compassion or a general sense of benevolence that was made by a health care provider or an employee of a health care provider to the patient, a relative of the patient, the patient's survivors or a health care decision maker for the patient and that relates to the discomfort, pain, suffering, injury or death of the patient as the result of the unanticipated outcome of medical care is inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

Chapter 18 Immigration and Nationality Law Practice Act

Article 1 General Provisions

§ 12-2701 Definitions

In this chapter, unless the context otherwise requires:

1. "Immigration or naturalization matter" includes all matters implicating any law, action, filing or proceeding related to a person's immigration or citizenship status in the United States.

2. "Original document" means any document of the United States government or any department or agency of the United States government, any foreign government, any state government or any political subdivision of any state, any United Nations document or any other document, including signed affidavits, that would demonstrate physical presence by a person in the United States.

3. "Unauthorized practice of immigration and nationality law" means:

(a) The act of any person appearing in any case, either in person or through preparation or filing of any brief or other document, paper, application or petition on behalf of another person or client before or with the immigration and naturalization service, or any officer of the immigration and naturalization service, the executive office for immigration review or the board of immigration appeals, without authorization under this chapter.

(b) The study of the facts of a case and the applicable laws, coupled with giving advice and auxiliary activities, including the incidental preparation of papers, without authorization under this chapter, but does not include the lawful functions of a notary public, nonprofit organization or service consisting solely of assistance in the completion of blank spaces on printed immigration and naturalization service forms by a person whose remuneration, if any, is nominal and who does not hold himself out as qualified in legal matters or in immigration and naturalization procedure.

§ 12-2702 Representation; definition

A. A person desiring immigration and nationality services may be represented by any of the following:

1. Attorneys in the United States.

2. A law student who is enrolled in an accredited law school or a law school graduate who is not yet admitted to the bar, if both of the following apply:

(a) The student or graduate is appearing on an individual case basis at the request of the person entitled to representation.

(b) The student or graduate is permitted to appear by the official before whom the student or graduate wishes to appear including an immigration judge, an immigration district director, an immigration officer-in-charge, a regional immigration commission, the United States commissioner of immigration and naturalization or the immigration board. If in the official's opinion special circumstances warrant it, the official may require that a law student be accompanied by a supervising faculty member or attorney.

3. Any reputable person of good moral character, if all of the following apply:

(a) The person is appearing on an individual case basis, at the request of the person entitled to representation.

(b) The person is appearing without direct or indirect remuneration and the person files a written declaration to that effect.

(c) The person has a preexisting relationship or connection with the person entitled to representation including a relative, neighbor, clergyman, business associate or personal friend, except that this requirement may be waived, as a matter of administrative discretion, in cases in which adequate representation would not otherwise be available.

(d) If the person is appearing on behalf of a client, the person's appearance is permitted by the official before whom the person wishes to appear including an immigration judge, an immigration district director, an immigration officer-in-charge, a regional immigration commissioner, the United States commissioner of immigration and naturalization or the immigration board, except that this permission shall not be granted with respect to any person who regularly engages in immigration and nationality practice or preparation or holds himself out to the public as qualified to do so.

4. A person who is representing an organization accredited by the board of immigration appeals and who has been accredited by the immigration board.

5. An accredited official in the United States of the government to which an alien owes allegiance, if the official appears solely in an official capacity and with the alien's consent.

B. Except as otherwise provided in this section, no other person or persons may represent others in any case, prepare applications or forms or give any legal advice relating to any immigration or naturalization matter.

C. Any person who misrepresents the services the person may provide in immigration or nationality matters is in violation of this chapter.

D. A person or organization may not retain an original document belonging to a client unless authorized by the client.

E. An attorney who practices immigration and nationality law in this state and who is not a member of the state bar of Arizona shall not provide advice on issues of this state's law. An attorney who practices immigration and nationality law in this state and who is not licensed by the state bar of Arizona shall disclose to all persons to whom service is provided that the attorney is not licensed by the state bar of Arizona and shall disclose the state in which the attorney is licensed to practice law. This disclosure must be done in writing at the time the attorney's services are retained.

F. For the purposes of this section, "attorney" means any person who is a member in good standing of the bar of the highest court of any state, possession, territory, commonwealth or district of the United States and who is not under any order of any court suspending, enjoining, restraining, disbarring or otherwise restricting the person in the practice of law.

§ 12-2703 Scope of remedies; violation; classification

A. It is unlawful for any person to render for compensation any service constituting the unauthorized practice of immigration and nationality law or to otherwise violate this chapter.

B. A person having an interest or right that is or may be adversely affected under this chapter may initiate an action for civil remedies. The provisions of this article are in addition to all other causes of action, remedies and penalties that are available in this state.

C. The attorney general shall initiate appropriate proceedings to prevent or to stop violations of this chapter.

D. Section 13-703, subsection A does not apply for the purpose of enhancing the sentence of a person who is convicted of two or more offenses under this section.

E. A person who violates this chapter is guilty of a class 6 felony.

§ 12-2704 Unlawful practices; investigation

An act or practice in violation of this chapter constitutes an unlawful practice under section 44-1522. The attorney general may investigate and take appropriate action pursuant to title 44, chapter 10, article 7.

Chapter 19 Genetic Testing

Article 1 General Provisions

§ 12-2801 Definitions

In this chapter, unless the context otherwise requires:

1. "Genetic test" or "genetic testing":

(a) Means a test of a person's genes, genetic sequence, gene products or chromosomes for abnormalities or deficiencies, including carrier status, that:

(i) Are linked to physical or mental disorders or impairments.

(ii) Indicate a susceptibility to any illness, disease, impairment or other disorder, whether physical or mental.

(iii) Demonstrate genetic or chromosomal damage due to any environmental factor.

(b) Does not include:

(i) Chemical, blood and urine analyses that are widely accepted and used in clinical practice and that are not used to determine genetic traits.

(ii) Tests used in a criminal investigation or prosecution or as a result of a criminal conviction.

(iii) Tests for the presence of the human immunodeficiency virus.

(iv) Tests to determine paternity conducted pursuant to title 25, chapter 6, article 1.

(v) Tests given for use in biomedical research that is conducted to generate scientific knowledge about genes or to learn about the genetic basis of disease or for developing pharmaceutical and other treatment of disease.

2. "Health care decision maker" means a person who is authorized to make health care treatment decisions for the patient, including a parent of a minor and a person who is authorized to make these decisions pursuant to title 14, chapter 5, article 2 or 3 or section 8-514.05, 36-3221, 36-3231 or 36-3281.

3. "Health care provider" means physicians licensed pursuant to title 32, chapter 13, 14 or 17, physician assistants licensed pursuant to title 32, chapter 25, registered nurse practitioners licensed pursuant to title 32, chapter 15, health care institutions as defined in section 36-401 and clinical laboratories licensed pursuant to title 36, chapter 4.1.

§ 12-2802 Confidentiality of genetic testing results; disclosure

A. Except as otherwise provided in this article, genetic testing and information derived from genetic testing are confidential and considered privileged to the person tested and shall be released only as authorized by state or federal law, including the health insurance portability and accountability act privacy standards (45 Code of Federal Regulations part 160 and part 164, subpart E), or to:

1. The person tested.

2. Any person who is specifically authorized in writing by the person tested or by that person's health care decision maker to receive this information.

3. The health care decision maker of the person tested.

4. A researcher for medical research or public health purposes only if the research is conducted pursuant to applicable federal or state laws and regulations governing clinical and biological research or if the identity of the individual providing the sample is not disclosed to the person collecting and conducting the research.

5. A third person if approved by a human subjects review committee or a human ethics committee, with respect to persons who are subject to an Arizona cancer registry.

6. A health care provider who is providing care to the person tested and an agent or employee of the health care provider.

7. A health care provider that procures, processes, distributes or uses:

(a) A human body part from a deceased person with respect to medical information regarding that person.

(b) Semen or ova for the purpose of artificial insemination.

8. A health care provider to conduct utilization review, peer review and quality assurance pursuant to section 36-441, 36-445, 36-2402 or 36-2917.

9. The authorized agent of a federal, state or county health department to conduct activities specifically authorized pursuant to the laws of this state for the birth defects registry, children's rehabilitative services, newborn screening and sickle cell diagnosis and treatment programs and chronic, environmentally provoked and infectious disease programs.

10. To obtain legal advice, the legal representative of a health care provider or clinical laboratory that is in possession of the medical record.

B. A pathologist who is licensed pursuant to title 32, chapter 13 or 17 may order and perform genetic testing for a patient and receive the results of that testing.

C. A person shall not disclose or be compelled to disclose the identity of any person on whom a genetic test is performed or the results of a genetic test in a manner that allows identification of the person tested except to the persons specified in the circumstances set forth in subsection A of this section.

D. If genetic testing information is subpoenaed, a health care provider shall respond pursuant to section 12-2294.01, subsection E. In determining whether to order production of the genetic testing information, the court shall take all steps necessary to prevent the disclosure or dissemination of that information.

E. Except as provided in this section, chapter 13, article 7.1 of this title does not apply to genetic testing information that is contained within a patient's medical record.

F. Following the death of a person who had genetic testing performed, the release of the testing information is governed by section 12-2294, subsection D, except that the person may deny, release or limit release of the genetic testing results by adopting a provision in a testamentary document.

G. Except as specifically provided in this article, a person to whom test results have been disclosed pursuant to this article, other than the person tested, shall not disclose the test results to any other person.

H. A health care provider and the provider's agents and employees that act in good faith and that comply with this article are not subject to civil liability. The good faith of a health care provider that complies with this article is presumed. The presumption may be rebutted by a preponderance of the evidence.

I. This article does not limit the effect of title 20 provisions governing the confidentiality and use of genetic testing information.

§ 12-2803 Testing of minors; notice to parents; informed consent

A. A genetic test shall not be conducted on an unemancipated minor without the consent of the parent or legal guardian of the minor except for testing under the newborn screening program pursuant to section 36-694.

B. A physician who orders the genetic testing of an unemancipated minor shall notify the child's parent or legal guardian of the results of the test.

C. Except for the circumstances prescribed in section 12-2802, subsection A, paragraph 4, 7 or 9, a health care provider shall not conduct a genetic test on a person unless the health care provider first obtains written informed consent from the person to be tested or from the person's authorized representative.

§ 12-2804 Public records

A. Information and records held by a state agency or a local health authority relating to genetic testing information are confidential and are exempt from the public copying and inspection requirements of title 39, chapter 1, article 2.

B. A state agency or a local health authority shall not release or make available to the public genetic testing information and records.

Chapter 20 Structured Settlements

Article 1 General Provisions

§ 12-2901 Definitions

In this chapter, unless the context otherwise requires:

1. "Annuity issuer" means an insurer that has issued a contract that is used to fund periodic payments under a structured settlement.

2. "Dependents" includes a payee's spouse and minor children and all other family members and other persons for whom the payee is legally obligated to provide support, including alimony.

3. "Discounted present value" means the present value of future payments, as determined by discounting the payments to the present using the most recently published applicable federal rate for determining the present value of an annuity, as issued by the United States internal revenue service.

4. "Gross advance amount" means the sum payable to the payee or for the payee's account as consideration for a transfer of structured settlement payment rights before any reductions for transfer expenses or other deductions to be made from the consideration.

5. "Independent professional advice" means the advice of an attorney, certified public accountant, actuary or other licensed professional adviser.

6. "Interested parties" means, with respect to any structured settlement, the payee, any beneficiary irrevocably designated under the annuity contract to receive payments following the payee's death, the annuity issuer, the structured settlement obligor and any other party that has continuing rights or obligations under the structured settlement.

7. "Net advance amount" means the gross advance amount less the aggregate amount of the actual and estimated transfer expenses required to be disclosed under this chapter.

8. "Payee" means an individual who receives tax-free damage payments under a structured settlement and who proposes to make a transfer of payment rights under the structured settlement.

9. "Periodic payments" includes both recurring payments and scheduled future lump sum payments.

10. "Qualified assignment agreement" means an agreement that provides for a qualified assignment within the meaning of section 130 of the internal revenue code as defined by section 42-1001.

11. "Responsible administrative authority" means, with respect to a structured settlement, any government authority that is vested by law with exclusive jurisdiction over the settled claim that is resolved by the structured settlement.

12. "Settled claim" means the original tort claim or workers' compensation claim that is resolved by a structured settlement.

13. "Structured settlement" means an arrangement for periodic payment of damages for personal injuries or sickness that is established by settlement or judgment in resolution of a tort claim or for periodic payments in settlement of a workers' compensation claim.

14. "Structured settlement agreement" means the agreement, judgment, stipulation or release that embodies the terms of a structured settlement.

15. "Structured settlement obligor" means, with respect to any structured settlement, the party that has the continuing periodic payment obligation to the payee under a structured settlement agreement or a qualified assignment agreement.

16. "Structured settlement payment rights" means the right to receive periodic payments under a structured settlement, whether from the settlement obligor or the annuity issuer, if any of the following apply:

(a) The payee, the structured settlement obligor, the annuity issuer or any other interested party is domiciled in this state.

(b) The structured settlement agreement was approved by a court or responsible administrative authority in this state.

(c) The laws of this state expressly govern the structured settlement agreement.

17. "Terms of the structured settlement" include, with respect to any structured settlement, the terms of the structured settlement agreement, the annuity contract, any qualified assignment agreement and any order or other approval of any court or responsible administrative authority or other government authority that authorized or approved the structured settlement.

18. "Transfer" means any sale, assignment, pledge, hypothecation or other form of alienation or encumbrance of structured settlement payment rights. Transfer does not include the creation or perfection of a security interest in structured settlement payment rights under a blanket security agreement entered into with an insured depository institution, in the absence of any action to redirect the structured settlement payments to such insured depository institution, or an agent or successor in interest thereof, or otherwise to enforce the blanket security interest against the structured settlement payment rights.

19. "Transfer agreement" means the agreement that provides for transfer of structured settlement payment rights from a payee to a transferee.

20. "Transfer expenses" means all expenses of a transfer required under the transfer agreement to be paid by the payee or deducted from the gross advance amount, including court filing fees, attorney fees, escrow fees, lien recordation fees, judgment and lien search fees, finders’ fees, commissions and other payments to a broker or other intermediary. Transfer expenses does not include preexisting obligations of the payee payable for the payee’s account from the proceeds of a transfer.

21. "Transferee" means a party acquiring or proposing to acquire structured settlement payment rights through a transfer.

§ 12-2902 Payment rights; transfer conditions

A. Direct or indirect transfer of structured settlement payment rights shall not be effective and a structured settlement obligor or annuity issuer shall not be required to make any payment directly or indirectly to any transferee of structured settlement payment rights unless the transfer has been authorized in advance in a final order of a court of competent jurisdiction or responsible administrative authority.

B. Before issuing a final order pursuant to subsection A, the court or responsible administrative authority shall expressly find that:

1. The transfer complies with the requirements of this chapter and will not contravene any other applicable law.

2. Not less than three days before the date on which the payee signed the transfer agreement, the transferee provided to the payee a disclosure statement in bold type, no smaller than fourteen points, setting forth:

(a) The amounts and due dates of the structured settlement payments to be transferred.

(b) The aggregate amount of the payments.

(c) The discounted present value of the payments to be transferred, which shall be identified as the calculation of current value of the transferred structured settlement payments under federal standards for valuing annuities, and the amount of the applicable federal rate used in calculating the discounted present value.

(d) The gross advance amount that is payable to the payee in exchange for the payments.

(e) An itemized listing of all applicable transfer expenses, other than attorney fees and related disbursements payable in connection with the transferee's application for approval of the transfer, and the transferee's best estimate of the amount of attorney fees and related disbursements.

(f) The net advance amount that is payable to the payee after deduction of all commissions, fees, costs, expenses and charges listed in subdivision (e) of this paragraph.

(g) A statement that the payee has the right to cancel the transfer agreement, without penalty or further obligation, not later than the third business day after the date the agreement is signed by the payee.

(h) The amount of any penalty and the aggregate amount of any liquidated damages inclusive of penalties that are payable by the payee in the event of any breach of the transfer agreement by the payee.

3. The transfer is in the best interest of the payee, taking into account the welfare and support of the payee's dependents.

4. The payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received the advice or knowingly waived the advice in writing.

5. If the transfer would contravene any applicable statute or the order of any court or other government authority.

C. Following a transfer of structured settlement payment rights under this chapter:

1. The structured settlement obligor and the annuity issuer shall, as to all parties except the transferee, be discharged and released from any and all liability for the transferred payments.

2. The transferee shall be liable to the structured settlement obligor and the annuity issuer:

(a) If the transfer contravenes the terms of the structured settlement, for any taxes incurred by such parties as a consequence of the transfer.

(b) For any other liabilities or costs, including reasonable costs and attorney fees, arising from compliance by such parties with the order of the court or responsible administrative authority or arising as a consequence of the transferee's failure to comply with this act.

§ 12-2903 Jurisdiction: transfer approval

A. The superior court has jurisdiction over any application for authorization to transfer structured settlement payment rights pursuant to section 12-2902.

B. Not less than twenty days before the scheduled hearing on any application for authorization to transfer structured settlement payment rights, the transferee shall file with the court a notice of the proposed transfer and the application for its authorization and shall serve a copy of the notice on any other government authority that previously approved the structured settlement, on all interested parties. The notice shall include:

1. A copy of the transferee's application.

2. A copy of the transfer agreement.

3. A copy of the disclosure statement required under section 12-2902.

4. A listing of each of the payee's dependents, together with each dependent's age.

5. A statement that any interested party is entitled to support, oppose or otherwise respond to the transferee's application, either in person or by counsel, by submitting written comments to the court or other responsible administrative authority or by participating in the hearing.

6. The time and place of the hearing and the manner in which and the time by which written responses to the application must be filed in order to be considered by the court or responsible administrative authority. An interested party shall have at least fifteen days after service of the transferee's notice in which to respond.

§ 12-2904 Waiver; penalties

A. The provisions of this chapter shall not be waived.

B. A payee who proposes to make a transfer of structured settlement payment rights shall not inure any penalty, forfeit any application fee or other payment or otherwise incur any liability to the proposed transferee based on any failure of the transfer to satisfy the conditions specified in section 12-2902.

C. Any transfer agreement entered into on or after the effective date of this section by a payee who resides in this state shall provide that disputes under the transfer agreement, including any claim that the payee has breached the agreement, shall be determined in and under the laws of this state. A transfer agreement shall not authorize the transferee or any other party to confess judgment or consent to entry of judgment against the payee.

D. A transfer of structured settlement payment rights shall not extend to any payments that are life contingent unless, before the date on which the payee signs the transfer agreement, the transferee has established and has agreed to maintain procedures reasonably satisfactory to the annuity issuer and the structured settlement obligor for both of the following:

1. Periodically confirming the payee's survival.

2. Giving the annuity issuer and the structured settlement obligor prompt written notice if the payee dies.

E. Compliance with the requirements and fulfillment of the conditions set forth in this chapter is the sole responsibility of the transferee in any transfer of structured settlement payment rights, and the structured settlement obligor or the annuity issuer is not responsible for, or any liability arising from, noncompliance with the requirements or failure to fulfill the requirements of this chapter.

Chapter 21 Revised Uniform Arbitration Act

Article 1 General Provisions

§ 12-3001 Definitions

In this chapter, unless the context otherwise requires:

1. "Arbitration organization" means an association, agency, board, commission or other entity that is neutral and that initiates, sponsors or administers an arbitration proceeding or is involved in the appointment of an arbitrator.

2. "Arbitrator" means an individual who is appointed to render an award, alone or with others, in a controversy that is subject to an agreement to arbitrate.

3. "Court" means a court of competent jurisdiction in this state.

4. "Knowledge" means actual knowledge.

5. "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government or governmental subdivision, agency or instrumentality or public corporation or any other legal or commercial entity.

6. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and that is retrievable in perceivable form.

§ 12-3002 Notice

A. Except as otherwise provided in this chapter, a person gives notice to another person by taking action that is reasonably necessary to inform the other person in ordinary course, whether or not the other person acquires knowledge of the notice.

B. A person has notice if the person has knowledge of the notice or has received notice.

C. A person receives notice when it comes to the person's attention or the notice is delivered at the person's place of residence or place of business or at another location held out by the person as a place of delivery of such communications.

§ 12-3003 Applicability

A. Except as provided in subsection B:

1. This chapter governs an agreement to arbitrate made on or after January 1, 2011.

2. This chapter governs an agreement to arbitrate made before January 1, 2011 if all the parties to the agreement or to the arbitration proceeding so agree in a record.

3. On or after January 1, 2011, this chapter governs an agreement to arbitrate whenever made.

B. Beginning January 1, 2011 this chapter shall not apply to an agreement to arbitrate any existing or subsequent controversy:

1. Between an employer and employee or their respective representatives.

2. Contained in a contract of insurance.

3. Between a national banking association or a federal savings association or its affiliate, subsidiary or holding company and any customer.

4. If the arbitration is conducted or administered by a self-regulatory organization as defined in the securities exchange act of 1934 (15 United States Code section 78c), the commodity exchange act (7 United States Code chapter 1) or regulations adopted under those acts.

C. An agreement to arbitrate that is described in subsection B, paragraphs 2, 3 and 4 shall be governed by chapter 9, article 1 of this title.

§ 12-3004 Effect of agreement to arbitrate; nonwaivable provisions

A. Except as otherwise provided in subsections B and C of this section, a party to an agreement to arbitrate or to an arbitration proceeding may waive, or the parties may vary the effect of, the requirements of this chapter to the extent permitted by law.

B. Before a controversy arises that is subject to an agreement to arbitrate, a party to the agreement may not:

1. Waive or agree to vary the effect of the requirements prescribed in section 12-2101.01, section 12-3005, subsection A, section 12-3006, subsection A, section 12-3008, section 12-3017, subsection A or B or section 12-3026.

2. Agree to unreasonably restrict the right under section 12-3009 to notice of the initiation of an arbitration proceeding.

3. Agree to unreasonably restrict the right under section 12-3012 to disclosure of any facts by a neutral arbitrator.

4. Waive the right under section 12-3016 of a party to an agreement to arbitrate to be represented by a lawyer at any proceeding or hearing under this chapter, but an employer and a labor organization may waive the right to representation by a lawyer in a labor arbitration.

C. A party to an agreement to arbitrate or to an arbitration proceeding may not waive, or the parties may not vary the effect of, the requirements of this section, section 12-2101.01, section 12-3003, subsection A, paragraph 1 or 3, section 12-3007, 12-3014 or 12-3018, section 12-3020, subsection D or E, section 12-3022, 12-3023 or 12-3024, section 12-3025, subsection A or B or section 12-3028, 12-3029 or 41-2615.

§ 12-3005 Application for judicial relief

A. An application for judicial relief under this chapter must be made by motion to the court and heard in the manner provided by law or court rule for making and hearing motions.

B. Unless a civil action involving the agreement to arbitrate is pending, notice of an initial motion to the court under this chapter must be served in the manner provided by law for the service of a summons in a civil action. Otherwise, notice of the motion must be given in the manner provided by law or court rule for serving motions in pending cases.

§ 12-3006 Validity of agreement to arbitrate

A. An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable and irrevocable except on a ground that exists at law or in equity for the revocation of a contract.

B. The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.

C. An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.

D. If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

§ 12-3007 Motion to compel or stay arbitration

A. On motion of a person showing an agreement to arbitrate and alleging another person's refusal to arbitrate pursuant to the agreement:

1. If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate.

2. If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

B. On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.

C. If the court finds that there is no enforceable agreement, it may not order the parties to arbitrate pursuant to subsection A or B of this section.

D. The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.

E. If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a motion under this section must be made in that court. Otherwise, a motion under this section may be made in any court as provided in section 12-3027.

F. If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.

G. If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim.

§ 12-3008 Interim remedies

A. Before an arbitrator is appointed and is authorized and able to act, the court, on motion of a party to an arbitration proceeding and for good cause shown, may enter an order for interim remedies to protect the effectiveness of the arbitration proceeding to the same extent and under the same conditions as if the controversy were the subject of a civil action.

B. After an arbitrator is appointed and is authorized and able to act:

1. The arbitrator may issue such orders for interim remedies, including interim awards, as the arbitrator finds necessary to protect the effectiveness of the arbitration proceeding and to promote the fair and expeditious resolution of the controversy, to the same extent and under the same conditions as if the controversy were the subject of a civil action.

2. A party to an arbitration proceeding may move the court for an interim remedy only if the matter is urgent and the arbitrator is not able to act timely or the arbitrator cannot provide an adequate remedy.

C. A party does not waive a right of arbitration by making a motion under subsection A or B.

§ 12-3009 Initiation of arbitration; notice

A. A person initiates an arbitration proceeding by giving notice in a record to the other parties to the agreement to arbitrate in the agreed manner between the parties or, in the absence of an agreement, by certified mail, return receipt requested and obtained, or by service as authorized for the commencement of a civil action. The notice must describe the nature of the controversy and the remedy sought.

B. Unless a person objects for lack or insufficiency of notice under section 12-3015, subsection C not later than the beginning of the arbitration hearing, the person by appearing at the hearing waives any objection to lack or insufficiency of notice.

§ 12-3010 Consolidation of separate arbitration proceedings

A. Except as otherwise provided in subsection C, on motion of a party to an agreement to arbitrate or to an arbitration proceeding, the court may order consolidation of separate arbitration proceedings as to all or some of the claims if all of the following apply:

1. There are separate agreements to arbitrate or separate arbitration proceedings between the same persons or one of them is a party to a separate agreement to arbitrate or a separate arbitration proceeding with a third person.

2. The claims subject to the agreements to arbitrate arise in substantial part from the same transaction or series of related transactions.

3. The existence of a common issue of law or fact creates the possibility of conflicting decisions in the separate arbitration proceedings.

4. Prejudice resulting from a failure to consolidate is not outweighed by the risk of undue delay or prejudice to the rights of or hardship to parties opposing consolidation.

B. The court may order consolidation of separate arbitration proceedings as to some claims and allow other claims to be resolved in separate arbitration proceedings.

C. The court may not order consolidation of the claims of a party to an agreement to arbitrate if the agreement prohibits consolidation.

§ 12-3011 Appointment of arbitrator; service as a neutral arbitrator

A. If the parties to an agreement to arbitrate agree on a method for appointing an arbitrator, that method must be followed unless the method fails. If the parties have not agreed on a method, the agreed method fails or an arbitrator appointed fails or is unable to act and a successor has not been appointed, the court, on motion of a party to the arbitration proceeding, shall appoint the arbitrator. An arbitrator so appointed has all the powers of an arbitrator designated in the agreement to arbitrate or appointed pursuant to the agreed method.

B. An individual who has a known, direct and material interest in the outcome of the arbitration proceeding or a known, existing and substantial relationship with a party may not serve as an arbitrator required by an agreement to be neutral.

§ 12-3012 Disclosure by arbitrator

A. Before accepting appointment, an individual who is requested to serve as an arbitrator, after making a reasonable inquiry, shall disclose to all parties to the agreement to arbitrate, to the arbitration proceeding and to any other arbitrators any known facts that a reasonable person would consider likely to affect the impartiality of the arbitrator in the arbitration proceeding, including both:

1. A financial or personal interest in the outcome of the arbitration proceeding.

2. An existing or past relationship with any of the parties to the agreement to arbitrate or the arbitration proceeding, their counsel or representatives, a witness or another arbitrator.

B. An arbitrator has a continuing obligation to disclose to all parties to the agreement to arbitrate, to the arbitration proceeding and to any other arbitrators any facts that the arbitrator learns after accepting appointment that a reasonable person would consider likely to affect the impartiality of the arbitrator.

C. If an arbitrator discloses a fact required by subsection A or B of this section to be disclosed and a party timely objects to the appointment or continued service of the arbitrator based on the fact disclosed, the objection may be a ground under section 12-3023, subsection A, paragraph 2 for vacating an award made by the arbitrator.

D. If the arbitrator did not disclose a fact as required by subsection A or B of this section, on timely objection by a party, the court under section 12-3023, subsection A, paragraph 2 may vacate an award made by the arbitrator.

E. An arbitrator appointed as a neutral arbitrator who does not disclose a known, direct and material interest in the outcome of the arbitration proceeding or a known, existing and substantial relationship with a party is presumed to act with evident partiality under section 12-3023, subsection A, paragraph 2.

F. If the parties to an arbitration proceeding agree to the procedures of an arbitration organization or any other procedures for challenges to arbitrators before an award is made, substantial compliance with those procedures is a condition precedent to a motion to vacate an award on that ground under section 12-3023, subsection A, paragraph 2.

§ 12-3013 Action by majority

If there is more than one arbitrator, the powers of an arbitrator must be exercised by a majority of the arbitrators, but all of them shall conduct the hearing under section 12-3015, subsection C.

§ 12-3014 Immunity of arbitrator; competency to testify; attorney fees and litigation expenses

A. An arbitrator or an arbitration organization acting in that capacity is immune from civil liability to the same extent as a judge of a court of this state acting in a judicial capacity.

B. The immunity afforded by this section supplements any immunity under other law.

C. The failure of an arbitrator to make a disclosure required by section 12-3012 does not cause any loss of immunity under this section.

D. In a judicial, administrative or similar proceeding, an arbitrator or representative of an arbitration organization is not competent to testify, and may not be required to produce records as to any statement, conduct, decision or ruling occurring during the arbitration proceeding, to the same extent as a judge of a court of this state acting in a judicial capacity. This subsection does not apply:

1. To the extent necessary to determine the claim of an arbitrator, arbitration organization or representative of the arbitration organization against a party to the arbitration proceeding.

2. To a hearing on a motion to vacate an award under section 12-3023, subsection A, paragraph 1 or 2 if the movant establishes prima facie that a ground for vacating the award exists.

E. If a person commences a civil action against an arbitrator, arbitration organization or representative of an arbitration organization arising from the services of the arbitrator, organization or representative or if a person seeks to compel an arbitrator or a representative of an arbitration organization to testify or produce records in violation of subsection D of this section, and the court decides that the arbitrator, arbitration organization or representative of an arbitration organization is immune from civil liability or that the arbitrator or representative of the organization is not competent to testify, the court shall award to the arbitrator, organization or representative reasonable attorney fees and other reasonable expenses of litigation.

§ 12-3015 Arbitration process

A. An arbitrator may conduct an arbitration in such manner as the arbitrator considers appropriate for a fair and expeditious disposition of the proceeding. The authority conferred on the arbitrator includes the power to hold conferences with the parties to the arbitration proceeding before the hearing and, among other matters, to determine the admissibility, relevance, materiality and weight of any evidence.

B. An arbitrator may decide a request for summary disposition of a claim or particular issue either:

1. If all interested parties agree.

2. On request of one party to the arbitration proceeding if that party gives notice to all other parties to the proceeding and the other parties have a reasonable opportunity to respond.

C. If an arbitrator orders a hearing, the arbitrator shall set a time and place and give notice of the hearing at least five days before the hearing begins. Unless a party to the arbitration proceeding makes an objection to lack or insufficiency of notice not later than the beginning of the hearing, the party's appearance at the hearing waives the objection. On request of a party to the arbitration proceeding and for good cause shown, or on the arbitrator's own initiative, the arbitrator may adjourn the hearing from time to time as necessary but may not postpone the hearing to a time later than that fixed by the agreement to arbitrate for making the award unless the parties to the arbitration proceeding consent to a later date. The arbitrator may hear and decide the controversy on the evidence produced although a party who was duly notified of the arbitration proceeding did not appear. The court, on request, may direct the arbitrator to conduct the hearing promptly and render a timely decision.

D. At a hearing under subsection C of this section, a party to the arbitration proceeding has a right to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing.

E. If an arbitrator ceases or is unable to act during the arbitration proceeding, a replacement arbitrator must be appointed in accordance with section 12-3011 to continue the proceeding and to resolve the controversy.

§ 12-3016 Representation by lawyer

A party to an arbitration proceeding may be represented by a lawyer.

§ 12-3017 Witnesses; subpoenas; depositions; discovery

A. An arbitrator may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing and may administer oaths. A subpoena must be served in the manner for service of subpoenas in a civil action and, on motion to the court by a party to the arbitration proceeding or the arbitrator, enforced in the manner for enforcement of subpoenas in a civil action.

B. In order to make the proceedings fair, expeditious and cost effective, on request of a party to or a witness in an arbitration proceeding, an arbitrator may permit a deposition of any witness to be taken for use as evidence at the hearing, including a witness who cannot be subpoenaed for or is unable to attend a hearing. The arbitrator shall determine the conditions under which the deposition is taken.

C. An arbitrator may permit such discovery as the arbitrator decides is appropriate in the circumstances, taking into account the needs of the parties to the arbitration proceeding and other affected persons and the desirability of making the proceeding fair, expeditious and cost effective.

D. If an arbitrator permits discovery under subsection C, the arbitrator may order a party to the arbitration proceeding to comply with the arbitrator's discovery related orders, issue subpoenas for the attendance of a witness and for the production of records and other evidence at a discovery proceeding and take action against a noncomplying party to the extent a court could if the controversy were the subject of a civil action in this state.

E. An arbitrator may issue a protective order to prevent the disclosure of privileged information, confidential information, trade secrets and other information protected from disclosure to the extent a court could if the controversy were the subject of a civil action in this state.

F. All laws compelling a person under subpoena to testify and all fees for attending a judicial proceeding, a deposition or a discovery proceeding as a witness apply to an arbitration proceeding as if the controversy were the subject of a civil action in this state.

G. The court may enforce a subpoena or discovery related order for the attendance of a witness within this state and for the production of records and other evidence issued by an arbitrator in connection with an arbitration proceeding in another state on conditions determined by the court so as to make the arbitration proceeding fair, expeditious and cost effective. A subpoena or discovery related order issued by an arbitrator in another state must be served in the manner provided by law for service of subpoenas in a civil action in this state and, on motion to the court by a party to the arbitration proceeding or the arbitrator, enforced in the manner provided by law for enforcement of subpoenas in a civil action in this state.

§ 12-3018 Judicial enforcement of preaward ruling by arbitrator

If an arbitrator makes a preaward ruling in favor of a party to the arbitration proceeding, the party may request the arbitrator to incorporate the ruling into an award under section 12-3019. A prevailing party may make a motion to the court for an expedited order to confirm the award under section 12-3022, in which case the court shall summarily decide the motion. The court shall issue an order to confirm the award unless the court vacates, modifies or corrects the award under section 12-3023 or 12-3024.

§ 12-3019 Award

A. An arbitrator shall make a record of an award. The record must be signed or otherwise authenticated by any arbitrator who concurs with the award. The arbitrator or the arbitration organization shall give notice of the award, including a copy of the award, to each party to the arbitration proceeding.

B. An award must be made within the time specified by the agreement to arbitrate or, if not specified therein, within the time ordered by the court. The court may extend or the parties to the arbitration proceeding may agree in a record to extend the time. The court or the parties may do so within or after the time specified or ordered. A party waives any objection that an award was not timely made unless the party gives notice of the objection to the arbitrator before receiving notice of the award.

§ 12-3020 Change of award by arbitrator

A. On motion to an arbitrator by a party to an arbitration proceeding, the arbitrator may modify or correct an award either:

1. On a ground stated in section 12-3024, subsection A, paragraph 1 or 3.

2. Because the arbitrator has not made a final and definite award on a claim submitted by the parties to the arbitration proceeding.

3. To clarify the award.

B. A motion under subsection A of this section must be made and notice given to all parties within twenty days after the movant receives notice of the award.

C. A party to the arbitration proceeding must give notice of any objection to the motion within ten days after receipt of the notice.

D. If a motion to the court is pending under section 12-3022, 12-3023 or 12-3024, the court may submit the claim to the arbitrator to consider whether to modify or correct the award either:

1. On a ground stated in section 12-3024, subsection A, paragraph 1 or 3.

2. Because the arbitrator has not made a final and definite award on a claim submitted by the parties to the arbitration proceeding.

3. To clarify the award.

E. An award modified or corrected pursuant to this section is subject to section 12-3019, subsection A and sections 12-3022, 12-3023 and 12-3024.

§ 12-3021 Remedies; fees and expenses of arbitration proceeding

A. An arbitrator may award punitive damages or other exemplary relief if such an award is authorized by law in a civil action involving the same claim and the evidence produced at the hearing justifies the award under the legal standards otherwise applicable to the claim.

B. An arbitrator may award reasonable attorney fees and other reasonable expenses of arbitration only if that award is authorized by law in a civil action involving the same claim or by the agreement of the parties to the arbitration proceeding.

C. As to all remedies other than those authorized by subsections A and B of this section, an arbitrator may order such remedies as the arbitrator considers just and appropriate under the circumstances of the arbitration proceeding. The fact that such a remedy could not or would not be granted by the court is not a ground for refusing to confirm an award under section 12-3022 or for vacating an award under section 12-3023.

D. An arbitrator's expenses and fees, together with other expenses, must be paid as provided in the award.

E. If an arbitrator awards punitive damages or other exemplary relief under subsection A of this section, the arbitrator shall specify in the award the basis in fact justifying and the basis in law authorizing the award and state separately the amount of the punitive damages or other exemplary relief.

§ 12-3022 Confirmation of award

After a party to an arbitration proceeding receives notice of an award, the party may make a motion to the court for an order confirming the award at which time the court shall issue a confirming order unless the award is modified or corrected pursuant to section 12-3020 or 12-3024 or is vacated pursuant to section 12-3023.

§ 12-3023 Vacating award

A. On motion to the court by a party to an arbitration proceeding, the court shall vacate an award made in the arbitration proceeding if any of the following applies:

1. The award was procured by corruption, fraud or other undue means.

2. There was either:

(a) Evident partiality by an arbitrator appointed as a neutral arbitrator.

(b) Corruption by an arbitrator.

(c) Misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding.

3. An arbitrator refused to postpone the hearing on showing of sufficient cause for postponement, refused to consider evidence material to the controversy or otherwise conducted the hearing contrary to section 12-3015, so as to prejudice substantially the rights of a party to the arbitration proceeding.

4. An arbitrator exceeded the arbitrator's powers.

5. There was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection under section 12-3015, subsection C not later than the beginning of the arbitration hearing.

6. The arbitration was conducted without proper notice of the initiation of an arbitration as required in section 12-3009 so as to prejudice substantially the rights of a party to the arbitration proceeding.

B. A motion under this section must be filed within ninety days after the movant receives notice of the award pursuant to section 12-3019 or within ninety days after the movant receives notice of a modified or corrected award pursuant to section 12-3020, unless the movant alleges that the award was procured by corruption, fraud or other undue means, in which case the motion must be made within ninety days after the ground is known or by the exercise of reasonable care would have been known by the movant.

C. If the court vacates an award on a ground other than that set forth in subsection A, paragraph 5 of this section, it may order a rehearing. If the award is vacated on a ground stated in subsection A, paragraph 1 or 2 of this section, the rehearing must be before a new arbitrator. If the award is vacated on a ground stated in subsection A, paragraph 3, 4 or 6 of this section, the rehearing may be before the arbitrator who made the award or the arbitrator's successor. The arbitrator must render the decision in the rehearing within the same time as that provided in section 12-3019, subsection B for an award.

D. If the court denies a motion to vacate an award, it shall confirm the award unless a motion to modify or correct the award is pending.

§ 12-3024 Modification or correction of award

A. On motion made within ninety days after the movant receives notice of the award pursuant to section 12-3019 or within ninety days after the movant receives notice of a modified or corrected award pursuant to section 12-3020, the court shall modify or correct the award if either:

1. There was an evident mathematical miscalculation or an evident mistake in the description of a person or thing or property referred to in the award.

2. The arbitrator made an award on a claim not submitted to the arbitrator and the award may be corrected without affecting the merits of the decision on the claims submitted.

3. The award is imperfect in a matter of form not affecting the merits of the decision on the claims submitted.

B. If a motion made under subsection A of this section is granted, the court shall modify or correct and confirm the award as modified or corrected. Otherwise, unless a motion to vacate is pending, the court shall confirm the award.

C. A motion to modify or correct an award pursuant to this section may be joined with a motion to vacate the award.

§ 12-3025 Judgment on award; attorney fees and litigation expenses

A. On granting an order vacating an award without directing a rehearing or confirming, modifying or correcting an award, the court shall enter a judgment in conformity with the order. The judgment may be recorded, docketed and enforced as any other judgment in a civil action.

B. A court may allow reasonable costs of the motion and subsequent judicial proceedings.

C. On application of a prevailing party to a contested judicial proceeding under section 12-3022, 12-3023 or 12-3024, the court may add reasonable attorney fees and other reasonable expenses of litigation incurred in a judicial proceeding after the award is made to a judgment vacating an award without directing a rehearing or confirming, modifying or correcting an award.

§ 12-3026 Jurisdiction

A. A court of this state having jurisdiction over the controversy and the parties may enforce an agreement to arbitrate.

B. An agreement to arbitrate providing for arbitration in this state confers exclusive jurisdiction on the court to enter judgment on an award under this chapter.

§ 12-3027 Venue

A motion pursuant to section 12-3005 must be made in the court of the county in which the agreement to arbitrate specifies the arbitration hearing is to be held or, if the hearing has been held, in the court of the county in which it was held. Otherwise, the motion may be made in the court of any county in which an adverse party resides or has a place of business or, if no adverse party has a residence or place of business in this state, in the court of any county in this state. All subsequent motions must be made in the court hearing the initial motion unless the court otherwise directs.

§ 12-3028 Uniformity of application and construction

In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

§ 12-3029 Relationship to electronic signatures in global and national commerce act

The provisions of this chapter governing the legal effect, validity and enforceability of electronic records or electronic signatures and of contracts performed with the use of such records or signatures conform to the requirements of section 102 of the electronic signatures in global and national commerce act (P.L. 106-229; 114 Stat. 463; 15 United States Code sections 7001 and 7002).

Chapter 22 Application of Foreign Laws

Article 1 General Provisions

§ 12-3101 Definition of foreign law

In this chapter, unless the context otherwise requires, "foreign law" means any law, rule or legal code or system other than the constitution, laws and ratified treaties of the United States and the territories of the United States, or the constitution and laws of this state.

§ 12-3102 Application

A. This chapter applies only to actual violations of the constitutional rights of a person or actual conflict with the laws of this state caused by the application of the foreign law.

B. This chapter does not apply to a corporation, partnership or other form of business association.

§ 12-3103 Prohibited enforcement of foreign law

A court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States or conflict with the laws of the United States or of this state.

Chapter 23 Judicial Vacancies and Appointments

Article 1 General Provisions

§ 12-3151 Nominations; commissions on trial and appellate court appointments; voting records

A. If the commission on appellate court appointments is required to fill a vacancy in the office of a justice or judge of the supreme court or an intermediate appellate court of record pursuant to article 6, section 37, Constitution of Arizona, the commission shall submit to the governor the names of at least five persons nominated by it to fill the vacancy, except that on a two-thirds vote, the commission may reject an applicant and submit fewer than five names. If the commission submits five or more nominees, not more than sixty per cent of the nominees shall be from the same political party. If the commission submits fewer than five nominees, no more than two nominees may be from the same political party.

B. If the commission on trial court appointments is required to fill a vacancy in the office of a judge of the superior court or a judge of a court of record inferior to the superior court except for vacancies occurring in the office of a judge of the superior court or a judge of a court of record inferior to the superior court in a county having a population of less than two hundred fifty thousand persons pursuant to article 6, section 37, Constitution of Arizona, the commission shall submit to the governor the names of at least five persons nominated by it to fill the vacancy, except that on a two-thirds vote, the commission may reject an applicant and submit fewer than five names. If the commission submits five or more nominees, not more than sixty per cent of the nominees shall be from the same political party. If the commission submits fewer than five nominees, no more than two nominees may be from the same political party.

C. The voting records of all members of the commission on appellate court appointments and the commission on trial court appointments shall be recorded in the minutes and made public. A voting record shall include how each individual commissioner voted.

§ 12-3152 Superior court; vacancies; fingerprinting; applicability

A. Except as provided in subsection B of this section, a person who applies to the governor to fill a vacancy on the superior court, before appointment, shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

B. This section does not apply to a superior court applicant who has already submitted a full set of fingerprints to the supreme court, the commission on appellate court appointments or the commission on trial court appointments.

Chapter 24 Vexatious Litigants

Article 1 General Provisions

§ 12-3201 Vexatious litigants; designation; definitions

A. In a noncriminal case, at the request of a party or on the court's own motion, the presiding judge of the superior court or a judge designated by the presiding judge of the superior court may designate a pro se litigant a vexatious litigant.

B. A pro se litigant who is designated a vexatious litigant may not file a new pleading, motion or other document without prior leave of the court.

C. A pro se litigant is a vexatious litigant if the court finds the pro se litigant engaged in vexatious conduct.

D. The requesting party may make an amended request at any time if the court either:

1. Determined that the party is not a vexatious litigant and the requesting party has new information or evidence that is relevant to the determination, even if there is not a pending case in the court.

2. Did not rule on the original request during the pendency of the action, even if there is not a pending case in the court.

E. For the purposes of this section:

1. "Vexatious conduct" includes any of the following:

(a) Repeated filing of court actions solely or primarily for the purpose of harassment.

(b) Unreasonably expanding or delaying court proceedings.

(c) Court actions brought or defended without substantial justification.

(d) Engaging in abuse of discovery or conduct in discovery that has resulted in the imposition of sanctions against the pro se litigant.

(e) A pattern of making unreasonable, repetitive and excessive requests for information.

(f) Repeated filing of documents or requests for relief that have been the subject of previous rulings by the court in the same litigation.

2. "Without substantial justification" has the same meaning prescribed in section 12-349.

Chapter 25 Uniform Foreign-Country Money Judgments Recognition Act

Article 1 General Provisions

§ 12-3251 Definitions

In this chapter, unless the context otherwise requires:

1. "Foreign country" means a government other than:

(a) The United States.

(b) A state, district, commonwealth, territory or insular possession of the United States.

(c) Any other government with regard to which the decision in this state as to whether to recognize a judgment of that government's courts is initially subject to determination under the full faith and credit clause of the United States Constitution.

2. "Foreign-country judgment" means a judgment of a court of a foreign country.

§ 12-3252 Applicability of chapter

A. This chapter applies to a foreign-country judgment that grants or denies the recovery of a sum of money and, under the law of the foreign country where rendered, is final, conclusive and enforceable.

B. Notwithstanding subsection A of this section, this chapter does not apply to a foreign-country judgment that either:

1. Grants or denies the recovery of a sum of money if it is any of the following:

(a) A judgment for taxes.

(b) A fine or other penalty.

(c) A judgment for divorce, support or maintenance or other judgment rendered in connection with domestic relations.

2. Originates from a foreign country that has not adopted or enacted a reciprocal law related to foreign-country money judgments that is similar to this chapter.

C. The party seeking recognition of a foreign-country judgment has the burden of establishing that this chapter applies to the foreign-country judgment.

D. This chapter does not prevent the recognition under principles of comity or otherwise of a foreign-country judgment that is not within the scope of this chapter.

§ 12-3253 Recognition of foreign-country judgments; personal jurisdiction

A. Except as provided in subsections B and C of this section, a court shall recognize a foreign-country judgment to which this chapter applies.

B. A court may not recognize a foreign-country judgment if any of the following applies:

1. The judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.

2. The foreign court did not have personal jurisdiction over the defendant.

3. The foreign court did not have jurisdiction over the subject matter.

C. A court may choose to not recognize a foreign-country judgment if any of the following applies:

1. The defendant in the proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable the defendant to defend.

2. The judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case.

3. The judgment or the cause of action on which the judgment is based is repugnant to the public policy of this state or of the United States.

4. The judgment conflicts with another final and conclusive judgment.

5. The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by proceedings in that foreign court.

6. In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action.

7. The judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment.

8. The specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.

D. A party contesting the recognition of a foreign-country judgment has the burden of establishing that a ground for nonrecognition pursuant to subsection B or C of this section exists.

E. A foreign-country judgment may not be refused recognition for lack of personal jurisdiction if any of the following applies:

1. The defendant was served with process personally in the foreign country.

2. The defendant voluntarily appeared in the proceeding, other than for the purpose of protecting property seized or threatened with seizure in the proceeding or of contesting the jurisdiction of the court over the defendant.

3. The defendant, before the commencement of the proceeding, had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved.

4. The defendant was domiciled in the foreign country when the proceeding was instituted or was a corporation or other form of business organization that had its principal place of business in, or was organized under the laws of, the foreign country.

5. The defendant had a business office in the foreign country and the proceeding in the foreign court involved a cause of action arising out of business done by the defendant through that office in the foreign country.

6. The defendant operated a motor vehicle or airplane in the foreign country and the proceeding involved a cause of action arising out of that operation.

F. The court may recognize a basis for personal jurisdiction that is not listed in subsection E of this section as sufficient to support a foreign-country judgment.

§ 12-3254 Procedure for recognition of a foreign-country judgment; effect of recognition of a foreign-country judgment; stay of proceedings; statute of limitations

A. If recognition of a foreign-country judgment is sought as an original matter, the issue of recognition is raised by filing an action seeking recognition of the foreign-country judgment. If recognition of a foreign-country judgment is sought in a pending action, the issue of recognition is raised by counterclaim, cross-claim or affirmative defense.

B. If the court in a proceeding under subsection A of this section finds that the foreign-country judgment is entitled to recognition under this chapter, to the extent that the foreign-country judgment grants or denies recovery of a sum of money, the foreign-country judgment is both of the following:

1. Conclusive between the parties to the same extent as the judgment of a sister state entitled to full faith and credit in this state would be conclusive.

2. Enforceable in the same manner and to the same extent as a judgment rendered in this state.

C. If a party establishes that an appeal from a foreign-country judgment is pending or will be taken, the court may stay any proceedings with regard to the foreign-country judgment until the appeal is concluded, the time for appeal expires or the appellant has had sufficient time to prosecute the appeal and has failed to do so.

D. An action to recognize a foreign-country judgment must be commenced within the earlier of the time during which the foreign-country judgment is effective in the foreign country or fifteen years after the date that the foreign-country judgment became effective in the foreign country.

Chapter 26 Private Process Servers

Article 1 General Provisions

§ 12-3301 Private process servers; background investigation; fees

A. Private process servers who are duly appointed or certified pursuant to rules established by the supreme court may serve all process, writs, orders, pleadings or papers that are required or permitted by law to be served before, during or independently of a court action, including all such as are required or permitted to be served by a sheriff or constable pursuant to section 11-441, subsection A, paragraphs 6 and 7, section 11-447 and section 11-448, except writs or orders requiring the service officer to sell, deliver or take into the officer's custody persons or property, or as may otherwise be limited by supreme court rule. A private process server is an officer of the court.

B. As a condition of certification, the supreme court shall require each private process server applicant to furnish a full set of fingerprints to enable a criminal background investigation to be conducted to determine the suitability of the applicant. The completed applicant fingerprint card shall be submitted with the fee prescribed in section 41-1750 to the department of public safety. The applicant shall bear the cost of obtaining the applicant's criminal history record information. The cost may not exceed the actual cost of obtaining the applicant's criminal history record information. Applicant criminal history records checks shall be conducted pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange the submitted applicant fingerprint card information with the federal bureau of investigation for a federal criminal records check.

C. A private process server may charge such fees for services as may be agreed on between the process server and the party engaging the process server.

Chapter 27 Uniform Partition of Heirs Property Act

Article 1 General Provisions

§ 12-3401 Short title

This chapter may be cited as the uniform partition of heirs property act.

§ 12-3402 Definitions

In this chapter, unless the context otherwise requires:

1. "Ascendant" means an individual who precedes another individual in lineage, in the direct line of ascent from the other individual.

2. "Collateral" means an individual who is related to another individual under the law of intestate succession of this state but who is not the other individual's ascendant or descendant.

3. "Descendant" means an individual who follows another individual in lineage, in the direct line of descent from the other individual.

4. "Determination of value" means a court order that determines the fair market value of heirs property or that adopts the valuation of the property agreed to by all cotenants.

5. "Heirs property" means real property that is held in tenancy in common and that satisfies all of the following requirements as of the filing of a partition action:

(a) There is no agreement in a record that binds all the cotenants and that governs the partition of the property.

(b) One or more of the cotenants acquired title from a relative, whether living or deceased.

(c) Any of the following applies:

(i) Twenty percent or more of the interests are held by cotenants who are relatives.

(ii) Twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased.

(iii) Twenty percent or more of the cotenants are relatives.

6. "Partition by sale" means a court-ordered sale of the entire heirs property, whether by open-market sale, sealed bids or auction.

7. "Partition in kind" means the division of heirs property into physically distinct and separately titled parcels.

8. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

9. "Relative" means an ascendant, descendant or collateral or an individual who is otherwise related to another individual by blood, marriage or adoption or by any other law of this state.

§ 12-3403 Applicability

This chapter applies to partition actions filed on or after September 14, 2024.

§ 12-3404 Relation to other law; service; notice by posting

A. In an action to partition real property under section 14-3911, the court shall determine whether the property is heirs property. If the court determines that the property is heirs property, the heirs property must be partitioned pursuant to this chapter unless all of the cotenants otherwise agree. This section does not limit or affect the method by which service of a petition in a partition action may be made.

B. In a partition action, if the plaintiff seeks to give notice of the action by publication and the court determines that the property may be heirs property, not later than ten days after the court's determination that the property may be heirs property the plaintiff shall post and maintain while the action is pending a conspicuous sign on the property that is the subject of the partition action. The sign shall state that the partition action has commenced and shall identify the name and address of the court and the legal description of the property. The court may require the petitioner to publish on the sign the name of the petitioner and the known respondents.

§ 12-3405 Determination of value

A. If the court determines that the property that is the subject of a partition action is heirs property, the court shall determine the fair market value of the heirs property by ordering an appraisal pursuant to subsection B of this section, unless one of the following applies:

1. If all cotenants have agreed to the value of the property or to another method of valuation, the court shall adopt that value or the value produced by the agreed method of valuation.

2. If the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, shall determine the fair market value of the property and provide notice to the parties of the value.

B. If the court orders an appraisal, the court shall appoint a disinterested real estate appraiser licensed in this state to determine the fair market value of the property assuming sole ownership of the fee simple estate. On completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court. If an appraisal is conducted pursuant to this subsection, the court shall provide notice of the appraisal to each party with a known address not later than ten days after the appraisal is filed. The notice shall include all of the following:

1. The appraised fair market value of the property.

2. That the appraisal is available at the court clerk's office.

3. That a party may file with the court an objection to the appraisal not later than thirty days after the notice is provided. The objection shall state the grounds for the objection.

C. If an appraisal is filed with the court pursuant to subsection B of this section, the court shall conduct a hearing to determine the fair market value of the property not sooner than thirty days after a copy of the notice of the appraisal is provided to each party pursuant to subsection B of this section, whether or not an objection to the appraisal is filed pursuant to subsection B, paragraph 3 of this section. In addition to the court-ordered appraisal, the court may consider any other evidence of value offered by a party. After the hearing but before considering the merits of the partition action, the court shall determine the fair market value of the property and provide notice to the parties of the determination of value.

§ 12-3406 Cotenant buyout

A. If any cotenant requested partition by sale after the determination of value pursuant to section 12-3405, subsection C, the court shall provide notice to the parties that any cotenant, except a cotenant that requested partition by sale, may buy all the interests of the cotenants that requested partition by sale. Not later than forty-five days after the notice is provided, any cotenant, except a cotenant that requested partition by sale, may file notice with the court that the cotenant elects to buy all the interests of the cotenants that requested partition by sale. The purchase price for each of the interests of a cotenant that requested partition by sale shall be the fair market value of the entire parcel determined pursuant to section 12-3405, subsection C multiplied by the cotenant's fractional ownership of the entire parcel. After expiration of the forty-five-day period, the following rules apply:

1. If only one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall notify all the parties of that fact.

2. If more than one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall allocate the right to buy those interests among the electing cotenants based on each electing cotenant's existing fractional ownership of the entire parcel divided by the total existing fractional ownership of all cotenants electing to buy and provide notice to all the parties of that fact and of the price to be paid by each electing cotenant.

3. If no cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall provide notice to all the parties of that fact and resolve the partition action pursuant to section 12-3407.

B. If the court provides notice to the parties pursuant to subsection A, paragraph 1 or 2 of this section, the court shall set a date not sooner than ninety days after the date the notice was provided by which electing cotenants must pay their apportioned price to the court. After ninety days, the following rules apply:

1. If all electing cotenants timely pay their apportioned price, the court shall issue an order reallocating all the interests of the cotenants and disburse the amounts held by the court to the persons entitled to them.

2. If no electing cotenant timely pays its apportioned price, the court shall resolve the partition action pursuant to section 12-3407 as if the interests of the cotenants that requested partition by sale were not purchased.

3. If one or more but not all of the electing cotenants fails to pay their apportioned price on time, the court, on motion, shall provide notice to the electing cotenants that paid their apportioned price of the interest remaining and the price for that interest.

C. Not later than twenty days after the court provides notice pursuant to subsection B, paragraph 3 of this section, any cotenant that paid may elect to purchase all of the remaining interest by paying the entire amount to the court. After the twenty-day period, the following rules apply:

1. If only one cotenant pays the entire price for the remaining interest, the court shall issue an order reallocating the remaining interest to that cotenant. The court shall promptly issue an order reallocating the interests of all of the cotenants and disburse the amounts held by the court to the persons entitled to them.

2. If no cotenant pays the entire price for the remaining interest, the court shall resolve the partition action pursuant to section 12-3407 as if the interests of the cotenants that requested partition by sale were not purchased.

3. If more than one cotenant pays the entire price for the remaining interest, the court shall reapportion the remaining interest among those paying cotenants, based on each paying cotenant's original fractional ownership of the entire parcel divided by the total original fractional ownership of all cotenants that paid the entire price for the remaining interest. The court shall promptly issue an order reallocating all of the cotenants' interests, disburse the amounts held by the court to the persons entitled to them and promptly refund any excess payment held by the court.

D. Not later than forty-five days after the court provides notice to the parties pursuant to subsection A of this section, any cotenant who is entitled to buy an interest under this section may request the court to authorize the sale as part of the pending action of the interests of cotenants named as respondents and served with the complaint but that did not appear in the action. If the court receives a timely request pursuant to this subsection, the court, after a hearing, may deny the request or authorize the requested additional sale on such terms as the court determines are fair and reasonable, subject to all of the following:

1. A sale authorized under this subsection may occur only after the purchase prices for all interests subject to sale pursuant to subsections A, B and C of this section have been paid to the court and those interests have been reallocated among the cotenants as provided in subsections A, B and C of this section.

2. The purchase price for the interest of a nonappearing cotenant is based on the court's determination of value pursuant to section 12-3405, subsection C.

§ 12-3407 Partition alternative

A. If all the interests of all cotenants that requested partition by sale are not purchased by other cotenants or if after the conclusion of a buyout pursuant to section 12-3406 a cotenant remains that has requested partition in kind, the court shall order partition in kind unless the court, after considering the factors prescribed in section 12-3408, finds that partition in kind will result in manifest prejudice to the cotenants as a group. In considering whether to order partition in kind, the court shall approve a request by two or more parties to have their individual interests aggregated.

B. If the court does not order partition in kind pursuant to subsection A of this section, the court shall order partition by sale pursuant to section 12-3409. If no cotenant requested partition by sale, the court shall dismiss the action. If the court orders partition in kind pursuant to subsection A of this section, the court may require that one or more cotenants pay one or more other cotenants amounts so that the payments, taken together with the value of the in-kind distributions to the cotenants, will make the partition in kind just and proportionate in value to the fractional interests held. If the court orders partition in kind pursuant to subsection A of this section, the court shall allocate to the cotenants that are unknown, unlocatable or the subject of a default judgment, if their interests were not bought out pursuant to section 12-3406, a part of the property representing the combined interests of these cotenants as determined by the court, and this part of the property shall remain undivided.

§ 12-3408 Considerations for partition in kind

A. In determining under section 12-3407 whether partition in kind would result in manifest prejudice to the cotenants as a group, the court shall consider all of the following factors:

1. Whether the heirs property practicably can be divided among the cotenants.

2. Whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the value of the property if it were sold as a whole, taking into account the condition under which a court-ordered sale likely would occur.

3. Evidence of the collective duration of ownership or possession of the property by a cotenant and one or more predecessors in title or predecessors in possession to the cotenant who are or were relatives of the cotenant or each other.

4. A cotenant's sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the cotenant.

5. The lawful use being made of the property by a cotenant and the degree to which the cotenant would be harmed if the cotenant could not continue the same use of the property.

6. The degree to which the cotenants have contributed their pro rata share of the property taxes, insurance and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance or upkeep of the property.

7. Any other relevant factor.

B. The court may not consider any one factor listed in subsection A of this section to be dispositive without weighing the totality of all relevant factors and circumstances.

§ 12-3409 Open-market sale; sealed bids; auctions

A. If the court orders a sale of heirs property, the sale must be an open-market sale unless the court finds that a sale by sealed bid or an auction would be more economically advantageous and in the best interest of the cotenants as a group. If the court orders an open-market sale and the parties, not later than ten days after the entry of the order, agree on a real estate broker licensed in this state to offer the property for sale, the court shall appoint the broker and establish a reasonable commission. If the parties do not agree on a broker, the court shall appoint a disinterested real estate broker licensed in this state to offer the property for sale and shall establish a reasonable commission. The broker shall offer the property for sale in a commercially reasonable manner at a price not lower than the fair market value of the property determined pursuant to section 12-3405, subsection C and on the terms and conditions established by the court. If the broker appointed pursuant to this subsection obtains within a reasonable time an offer to purchase the property for at least the determined fair market value, both of the following apply:

1. The broker shall comply with the reporting requirements in subsection D of this section.

2. The sale may be completed in accordance with state law other than the provisions of this section.

B. If the broker appointed pursuant to subsection A of this section does not obtain within a reasonable time an offer to purchase the property for at least the determined fair market value of the property, the court, after a hearing, may do any of the following:

1. Approve the highest outstanding offer, if any.

2. Redetermine the value of the heirs property and order that the heirs property continue to be offered for an additional time.

3. Order that the heirs property be sold by sealed bids or at an auction.

C. If the court orders a sale by sealed bids or at an auction, the court shall set terms and conditions of the sale. If the court orders an auction, the auction must be conducted pursuant to title 33, chapter 6, article 2. If a purchaser is entitled to a share of the proceeds of the sale, the purchaser is entitled to a credit against the price in an amount equal to the purchaser's share of the proceeds.

D. Unless required to do so within a shorter time, a broker who is appointed pursuant to subsection A of this section to offer heirs property for open-market sale shall file a report with the court not later than seven days after receiving an offer to purchase the heirs property for at least the fair market value of the heirs property. The report must contain all of the following information:

1. A description of the property to be sold to each buyer.

2. The name of each buyer.

3. The proposed purchase price.

4. The terms and conditions of the proposed sale, including the terms of any owner financing.

5. The amounts to be paid to lienholders.

6. A statement of contractual or other arrangements or conditions of the broker's commission.

7. Any other material facts relevant to the sale.

§ 12-3410 Commissioners

If the court appoints commissioners pursuant to section 12-1215, each commissioner, in addition to the requirements and disqualifications applicable to commissioners, must be disinterested and impartial and not be a party to or a participant in the action.

§ 12-3411 Uniformity of application and construction

In applying and construing this chapter, the courts shall consider the need to promote uniformity of the law with respect to its subject matter among the states that enact the uniform partition of heirs property act.

§ 12-3412 Relation to electronic signatures in global and national commerce act

This section modifies, limits and supersedes the electronic signatures in global and national commerce act (15 United States Code sections 7001 through 7031) but does not modify, limit or supersede section 101(c) of that act (15 United States Code section 7001(c)) or authorize electronic delivery of any of the notices described in section 103(b) of that act (15 United States Code section 7003(b)).

Chapter 28 Litigation Financing

Article 1 General Provisions

§ 12-3451 Definitions

In this chapter, unless the context otherwise requires:

1. "Action" means a civil action, administrative proceeding, claim or other cause of action.

2. "Foreign country of concern" includes the following:

(a) A foreign government listed in 15 Code of Federal Regulations section 791.4.

(b) A country designated as a threat to critical infrastructure by the federal government or the governor.

3. "Foreign entity of concern" means a partnership, association, corporation, organization or other combination of persons that meets any of the following:

(a) Is organized or incorporated in a foreign country of concern.

(b) Is owned or controlled by the government, a political subdivision or a political party of a foreign country of concern.

(c) Has a principal place of business in a foreign country of concern.

(d) Is owned, organized or controlled by or affiliated with a foreign organization that has either been:

(i) Placed on the federal office of foreign assets control specially designated nationals and blocked persons list.

(ii) Designated by the United States secretary of state as a foreign terrorist organization.

4. "Licensed health care provider" has the same meaning prescribed in section 12-561.

5. "Litigation financier" means a person that has entered into a litigation financing agreement with a party to an action or counsel of record for a party to an action.

6. "Litigation financing agreement" or "litigation financing" means any agreement creating a right to receive payment by anyone which is contingent in any respect on the outcome of an action or on the outcome of any matter within a portfolio that includes the action and that involves the same counsel or affiliated counsel, but excluding the following:

(a) A named party to the action if payments made to the named party are provided exclusively for personal and family use and are provided on condition that they are not to be used for legal filings, legal document preparation and drafting, appeals, creation of a litigation strategy, drafting testimony or other expenses directly related to litigation.

(b) A counsel of record, a law firm of record or any referring counsel for legal services or advancement of legal costs provided by counsel of record, where the services or costs are provided by a legal counsel of record in accordance with the rules of professional conduct adopted by the supreme court.

(c) A person with a preexisting contractual obligation to indemnify or defend a party to the action or a health insurer who has paid or is obligated to pay any sums for health care services rendered to an injured person under the terms of a health insurance policy, plan or agreement.

(d) A financial institution, as defined in section 6-101, for repayment of loans made directly to a party or a party's counsel when repayment of the loan is not contingent on the outcome of an action by settlement, judgment or otherwise or on the outcome of any matter within a portfolio that includes the action and involves the same counsel or affiliated counsel.

(e) Funding that is provided to a nonprofit organization, whether as a party or on behalf of a client or member of the organization, and irrespective of whether the nonprofit organization seeks an award of costs or attorney fees in providing pro bono representation.

(f) Funding provided by a nonprofit organization that is exempt from taxation under 501(c)(3) of the United States internal revenue code, by grant or otherwise, to support the pursuit of litigation.

(g) A person providing funding to a medical practice or facility solely for its receivables.

(h) Where there is no right to payment in excess of the funding actually provided.

§ 12-3452 Preserving consumer control and recoveries

A. A litigation financier may not direct or make any decisions with respect to the course of any action that is subject to a litigation financing agreement or any settlement or other disposition thereof, including decisions concerning appointing or changing counsel, choice of or use of expert witnesses and litigation strategy. The named party and counsel of record shall retain all rights to control and decision-making with regard to the action.

B. If there has been a prior disclosure of the existence of litigation financing in a class action litigation, the court shall consider the existence of litigation financing and any related conflicts of interest when determining whether a class representative or class counsel would adequately and fairly represent the interests of the class.

C. If there has been a prior disclosure of the existence of litigation financing in multidistrict litigation, the court shall consider the existence of litigation financing and any related conflicts of interest when approving or appointing counsel to leadership positions. For the purposes of this subsection, "leadership positions" means any lead counsel, colead counsel, common benefit counsel, steering committee membership, executive committee membership and other similar positions or roles.

§ 12-3453 Prohibited conduct; applicability

A. A litigation financier may not pay or offer to pay a commission, referral fee or other consideration to legal counsel, a law firm or a licensed health care provider, for referring a person to the litigation financier without disclosing in writing to the potential borrower. The disclosure must be made before entering into the litigation financing agreement and must be separately acknowledged and agreed to by the potential borrower, including the amount of the commission, referral fee or other consideration to be paid for the referral on behalf of the borrower.

B. A litigation financier may not provide funding to or in connection with a litigation financing agreement that is directly or indirectly financed by a foreign entity of concern.

C. This section applies to class actions and multidistrict litigation. The acknowledgment required by subsection A of this section shall be made by the class representative or the named plaintiffs.

§ 12-3454 Violations; enforcement

A. A litigation financing agreement that is entered into in violation of this chapter is voidable.

B. A litigation financier who knowingly violates section 12-3452 or 12-3453 commits an unlawful practice under section 44-1522.

C. Only the attorney general or parties to the litigation for which litigation financing has been provided may challenge the litigation financing agreement as unlawful under section 44-1522.