Western Waste Service Systems, Inc. v. Superior Court In and For Maricopa County, 13717

• Decision Date: 08 September 1978
• Docket Number: No. 13717,13717
• Citation: 120 Ariz. 90,584 P.2d 554
• Parties: , 1978-2 Trade Cases P 62,216 WESTERN WASTE SERVICE SYSTEMS, INC., an Arizona Corporation and Robert W. Allen, Petitioners, v. SUPERIOR COURT of the State of Arizona IN AND FOR the COUNTY OF MARICOPA, the Honorable Paul W. LaPrade, Judge of the Superior Court of Maricopa County, Universal Waste Control, a California Corporation, Waste Management, Inc., a Delaware Corporation, Respondents.
• Court: Arizona Supreme Court

Page 554

584 P.2d 554

120 Ariz. 90, 1978-2 Trade Cases P 62,216

WESTERN WASTE SERVICE SYSTEMS, INC., an Arizona Corporation and Robert W. Allen, Petitioners, v. SUPERIOR COURT of the State of Arizona IN AND FOR the COUNTY OF MARICOPA, the Honorable Paul W. LaPrade, Judge of the Superior Court of Maricopa County, Universal Waste Control, a California Corporation, Waste Management, Inc., a Delaware Corporation, Respondents.

No. 13717.

Supreme Court of Arizona, In Banc.

Sept. 8, 1978.

Meyer & Vucichevich by Henry G. Hester, P. Richard Meyer, Phoenix, for petitioners.

Lewis & Roca by Paul G. Ulrich, Andrew S. Gordon, Arnold L. Rotkin, Phoenix, for respondents Universal Waste Control and Waste Management, Inc.

Cooper & Scarpulla by Josef D. Cooper, Francis O. Scarpulla, James M. Garlock, Karen T. Friedman, San Francisco, Cal., Davich & Pollock by Arthur J. Davich, Phoenix, for amici curiae Standard Glass Co. & Clarence R. Allen dba Lefty's Complete Auto.

John A. LaSota, Jr., Atty. Gen. by David B. Goldstein, Phoenix, for amicus curiae State of Ariz.

STRUCKMEYER, Vice Chief Justice.

This special action was brought to test an order of the Honorable Paul W. LaPrade, Judge of the Superior Court, declaring the triple damage provision of the Arizona Uniform Antitrust Act, A.R.S. § 44-1408(B), unconstitutional. We accepted jurisdiction pursuant to Rules of Procedure for Special Action, 17A A.R.S. The order granting the motion of respondents, Universal Waste Control and Waste Management, Inc., for partial summary judgment is vacated.

Petitioner Western Waste Service Systems, Inc. is engaged in the waste disposal business in the Phoenix metropolitan and adjoining areas. The respondent Universal Waste Control, a California corporation, is also engaged in the waste disposal business in the Phoenix area. The respondent Waste Management, Inc., a Delaware corporation, is the sole owner of Universal Waste Control. Petitioners' complaint in the Superior Court charged that respondents have monopolized and attempted to monopolize the business of collecting, hauling and disposing of trash, rubbish and other solid waste for commercial and industrial enterprises within the Phoenix metropolitan and adjoining areas by providing their services either free or at a price substantially below cost for the purpose of destroying petitioner and others as competitors and that respondents in concert with others entered into agreements and combinations designed to eliminate competition and destroy petitioner's business. Other specific acts of monopoly are alleged in petitioner's complaint in the Superior Court.

In 1974, by A.R.S. §§ 44-1401 through 44-1413, Arizona adopted the Uniform Antitrust Act. It provides by § 1408(B):

"B. A person threatened with injury or injured in his business or property by a violation of this article may bring an action for appropriate injunctive or other equitable relief, damages sustained and, as determined by the court, taxable costs and reasonable attorney's fees. If the trier of fact finds that the violation is flagrant, it shall increase recovery to an amount not in excess of three times the damages sustained."

Petitioner in the Superior Court seeks to recover its actual damages, attorney's fees and triple damages in accordance with the triple damage provision of the statute. Respondents, defendants in the Superior Court, filed a motion for partial summary judgment on the issue of the constitutionality of A.R.S. § 44-1408(B), asserting that the word "flagrant" was not defined in the statute and the statute was therefore void for vagueness. The Superior Court judge declared that the statute was an unconstitutional delegation of legislative authority, holding:

"The language of Section 44-1408(B) A.R.S., by the Arizona Uniform Antitrust Act, does not have sufficient legal significance to be capable of intelligent execution by the finder of fact regarding what does or does not constitute 'flagrant' conduct."

We think the Superior Court was mistaken.

This Court has the power to issue writs of review pursuant to the Constitution, Article 6, § 5, subsec. 4. It will accept jurisdiction and grant relief by way of special action if the issues raised are of sufficient importance to justify the review requested. Jolly v. Superior Court, 112 Ariz. 186, 540 P.2d 658 (1975). Jurisdiction was accepted here because we concluded that the trial court's granting of a motion for partial summary judgment is without precedent or support in the law and cannot be justified. Cf. Nataros v. Superior Court, 113 Ariz. 498, 557 P.2d 1055 (1976).

In State Tax Commission v. Peck, 106 Ariz. 394, 395, 476 P.2d 849, 850 (1970), we said:

"The major dispute between the parties here concerns the meaning of the terms 'leasing' or 'renting' as used in § 42-1314, subsec. A, par. 2. The legislature has not defined these terms as they are used in this section, and it does not appear from the context that a special meaning was intended. We must therefore be guided by the ordinary meaning of the words. State Board of Dispensing Opticians v. Schwab, 93 Ariz. 328, 380 P.2d 784 (1963); Arizona State Tax Commission v. First Bank Building Corp., 5 Ariz.App. 594, 429 P.2d 481 (1967)."

In the instant case, it is plain at the onset that the word "flagrant" is a word known to men of ordinary intelligence and one of common usage. Nor does it appear that any special meaning was intended by the Legislature.

In Webster's Third New International Dictionary, the meaning of the word "flagrant" is stated to be synonymous with "glaring," "gross" and "rank" and it "may describe offenses or errors so conspicuously or outstandingly bad that it is impossible not to notice them." The word "flagrant" means conduct which is shocking or outrageous and connotes behavior which is open, notorious or willful in nature. Caldwell v. England, Dist. of Columbia Court of Appeals, 200 A.2d 376 (1964).

Respondents' position is that a statute which is so vague that people of ordinary intelligence cannot understand it violates both due process rights and constitutes an impermissible delegation of legislative authority. A statute, however, is only vague if people of ordinary intelligence...