863 P.2d 917 (Ariz.Tax 1993), TX 92-01125, OPI Corp. v. Pima County

Docket Nº:TX 92-01125.
Citation:863 P.2d 917, 176 Ariz. 625
Party Name:OPI CORPORATION v. PIMA COUNTY; Arizona Department of Revenue.
Case Date:November 15, 1993
Court:Tax Court of Arizona
 
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Page 917

863 P.2d 917 (Ariz.Tax 1993)

176 Ariz. 625

OPI CORPORATION

v.

PIMA COUNTY; Arizona Department of Revenue.

No. TX 92-01125.

Tax Court of Arizona.

November 15, 1993

Page 918

[176 Ariz. 626] Louis B. Schaeffer, P.C. by Louis B. Schaeffer, Phoenix, for plaintiff.

Pima County Atty. by Alison K. North, Tucson, for defendant.

OPINION

SCHAFER, Judge.

The issue in this case is whether a party may be relieved of a final judgment under Rule 60(c)(2) based upon a fact which arose after entry of judgment. He may not.

On October 21, 1992, OPI Corporation (OPI), the taxpayer, filed an action contesting the 1992 valuation of property located in Pima County. OPI paid the taxes for the first half of 1992, but before the second half taxes were due on May 3, 1993, the parties settled and the Court signed a judgment on April 16, 1993. Neither the settlement agreement nor the judgment said anything about payment of the second half taxes. OPI did not pay the second half taxes and they became delinquent. 1

The Government now asks this Court for relief from its stipulated judgment pursuant to Rule 60(c)(2) claiming OPI's failure to pay the second half taxes is "newly discovered evidence." Because of the failure to pay, and the fact A.R.S. § 42-177(E) requires a taxpayer to pay its taxes before it can maintain an appeal, the Government argues the Court lost or never had jurisdiction to sign the final judgment and that judgment must now be vacated.

OPI argues there can be no retroactive loss of jurisdiction under section 42-177(E) once a final judgment is signed--even when the taxpayer does not later pay its second half taxes. The Court agrees with OPI; the judgment will not be vacated.

ANALYSIS

  1. Newly Discovered Evidence

    Rule 60(c)(2) of the Arizona Rules of Civil Procedure provides a court may relieve a party from a final judgment based on "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(d)...." It is well settled evidence

    Page 919

    [176 Ariz. 627] must have existed at the time of trial or judgment before it can qualify as newly discovered evidence. Rogers v. Ogg, 101 Ariz. 161, 163, 416 P.2d 594, 596 (1966).

    The Government's "newly discovered evidence" is an affidavit showing after the final judgment was entered OPI failed to pay the second half of its 1992 taxes...

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