Maricopa County v. Barkley
| Decision Date | 11 December 1990 |
| Docket Number | CA-CV,No. 1,1 |
| Citation | 812 P.2d 1052,168 Ariz. 234 |
| Parties | MARICOPA COUNTY, a Political Subdivision, Plaintiff-Appellant, v. Robert BARKLEY and Jane Doe Barkley, Husband and Wife; Frank H. Estes and Jane Doe Estes, Husband and Wife, Defendants-Appellees. 89-251. |
| Court | Arizona Court of Appeals |
This appeal is brought by Maricopa County from a judgment of the Yavapai County Superior Court in a condemnation action instituted by Maricopa County.
Maricopa County filed this action in the Superior Court of Maricopa County in 1984. The county sought to condemn about sixty-six acres of land within a larger parcel located in the bed of the Agua Fria River and owned by appellees Barkley and Estes. The county intended to use the land for flood control.
By stipulation and pursuant to A.R.S. § 12-1116, the county deposited approximately $185,000 into court and obtained immediate possession of the property.
Upon motion by Barkley and Estes, and pursuant to A.R.S. § 12-408, venue was moved to Yavapai County.
After a jury trial, the superior court entered judgment on the verdict awarding $1,800,000 to Barkley and Estes as compensation for the taking.
Maricopa County appealed. When the county sought an order staying enforcement of the judgment pending appeal, the superior court required the county to post a supersedeas bond in the amount of $2,000,000 as a condition for granting the stay.
The county raises numerous issues on appeal. It attacks the change of venue, evidentiary rulings at trial, the instructions to the jury, and the order requiring a supersedeas bond.
We first address the county's attack on venue. Initially, we note that appellate courts will not interfere with a venue ruling in the absence of a clear abuse of the trial court's discretion. Floyd v. Superior Court, Cochise County, 125 Ariz. 445, 610 P.2d 79 (1980). See, e.g., Slovenic National Benefit Society v. Ilija Dabevich, 30 Ariz. 294, 246 P. 765 (1926) (). Additionally, Goff v. Superior Courts in and for Counties of Pima and Maricopa, 2 Ariz.App. 344, 347, 409 P.2d 60, 63 (1965).
The county contends that venue lies in Maricopa County as the county in which the property is located. It relies on A.R.S. § 12-1116, which states:
All actions for condemnation shall be brought as other civil actions in the superior court of the county in which the property is located.
Barkley and Estes support the change of venue from Maricopa County to Yavapai County, relying on A.R.S. § 12-408, which provides:
In a civil action pending in the superior court in a county where the county is a party, the opposing party is entitled to a change of venue to some other county.
Our task is to reconcile these two statutes. Maricopa County argues that the condemnation venue provision is the more specific statute. Therefore, it contends, the change of venue statute must yield under the doctrine that when two statutes conflict, the more specific one controls. See Pima County v. Heinfeld, 134 Ariz. 133, 654 P.2d 281 (1982). The county also relies on State v. Hollis, 93 Ariz. 200, 379 P.2d 750 (1963), but that case does not attempt to reconcile these two statutes and merely reiterates the venue rule in A.R.S. § 12-1116.
If possible, statutes must be read harmoniously rather than in such a manner that a conflict results. See Arizona State Highway Comm'n v. Nelson, 105 Ariz. 76, 459 P.2d 509 (1969). We believe that these two statutes can be harmonized.
The operation of these statutes is illuminated by the decision in GAC Properties, Inc. of Arizona v. Farley, 14 Ariz.App. 156, 481 P.2d 526 (1971). In that case, we construed § 408 in conjunction with the property tax appeals statute, A.R.S. § 42-245. We held that the change of venue statute, § 408, applied to property tax appeals. Although the tax appeals statute was arguably "specific," and created a special statutory proceeding to be brought in the superior court of the county in which the property was located, we held that § 408 applied in the absence of any provision in the tax appeals statute to the contrary.
As with the property tax appeals statute, the condemnation statute involved here does not exclude the operation of the change of venue statute. If we are to adhere to the reasoning of GAC Properties we must uphold the change of venue in this case. 1
This result is also supported by the statutory language. Section 1116 provides that condemnation actions "shall be brought" in the county in which the property is located. That this is not a permanently fixed venue is illustrated by a related statute, A.R.S. § 12-401(15), which provides:
Actions against counties shall be brought in the county sued unless there are several counties defendant, when it may be brought in any one of the counties.
(Emphasis added).
The venue selected by § 12-401(15) may be changed pursuant to § 12-408(A). The ability to change venue suggests that the language "shall be brought" means that while the action must be initiated in the selected venue, it need not be maintained permanently there. The same phrase--"shall be brought"--appearing in section 1116 thus does not reveal anything more than the legislature's prescription of an initial venue. To hold otherwise would require us to interpret the legislature's use of the identical phrase in two statutes relating to the same general subject matter as having two entirely different meanings.
Section 1116 also provides that condemnation action "shall be brought as other civil actions." The change of venue statute, § 408, applies to "civil action[s]." These statutes are best harmonized by allowing a change of venue in condemnation actions as in other civil actions.
This interpretation is also consistent with the operation of venue statutes generally. Rarely, if ever, does a venue statute fix venue immutably. Venue statutes either create limited venue choices for plaintiffs, or create presumptive venues. E.g., A.R.S. § 12-401. In either case, venue may be changed upon the grounds specified by statute. E.g., A.R.S. §§ 12-406, 408. Section 1116 best fits the general pattern of venue legislation as a presumptive choice of venue, not as a final, unalterable venue selection. The change of venue statute thus applies to this action because § 1116 mandated a Maricopa County venue only as an initial venue selection. The change of venue from Maricopa County to Yavapai County does not constitute reversible error.
The county next contends that the superior court erred in requiring a supersedeas bond as a condition of staying the enforcement of the judgment. According to the county, Rule 62(g), Arizona Rules of Procedure, exempts it from the bond requirement. Rule 62(g) provides:
When an appeal is taken by the state or an officer or agency thereof or by direction of any department of the state and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant.
As state agencies, the county contends, the bond exemption of Rule 62(g) applies to counties. We agree. See Navajo County v. Superior Court, 105 Ariz. 156, 461 P.2d 77, opinion on denial of rehearing, 105 Ariz. 248, 462 P.2d 797 (1969).
In response, Barkley and Estes point out that the county already has possession of the land and argue that they are entitled to immediate payment under A.R.S. § 12-1127. This statute requires the county to pay the judgment if it retains possession, they argue.
The county has already obtained and filed the bond. The county asks for no particular relief on appeal, and merely asserts that requiring the bond was error. A petition for special action to this court would have afforded effective relief from an order improperly fixing supersedeas. See, e.g., Hackin v. Superior Court, 102 Ariz. 93, 425 P.2d 420 (1967) (); Allison v Chatwin, 99 Ariz. 99, 407 P.2d 69 (1965) (). Moreover, a stay pursuant to Rule 62(g) is automatic. Navajo County, supra. Thus, if the county is correct that Rule 62(g) applies, then the proper course was not for the county to seek a special stay order from the superior court which that court could condition upon the posting of a bond, but instead to rely on the automatic character of the stay. In summary, the county seeks no particular relief, and we therefore grant none on this issue.
The county next challenges the admission of testimony by several witnesses on the issue of valuation of the property. The property involved in this case was used as a sand and gravel mine. The county concedes that the witnesses were experienced in the sand and gravel business, but argues that business experience alone cannot qualify them to testify as experts on the value of a sand and gravel property. In a related argument, the county contends that these witnesses were not qualified to testify as to the value of the property as determined from the value of the sand and gravel resources located upon it.
The overarching rule which guides our review of the trial court's decision of the qualifications of the witnesses as experts is that the determination of this matter is left to the discretion of the trial court. Godwin v. Farmers Ins. Co., 129 Ariz. 416, 631 P.2d 571 (App.1981). A witness may be qualified to give an opinion by reason of his "real world" experience as well as by...
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