Colorado City v. Centennial

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

TOWN OF COLORADO CITY, ARIZONA, an Arizona municipal
corporation, Petitioner,

v.

CENTENNIAL PARK DISPOSAL, INC., a foreign, for-profit corp.,
Respondent.

No. 1 CA-SA 25-0035
FILED 05-06-2025

Appeal from the Superior Court in Mohave County
No. S8015CV202201203
The Honorable Kenneth Gregory, Judge Pro Tempore

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Doyle Hernandez Millam, Phoenix
By William H. Doyle, Brandon D. Millam
Counsel for Petitioner

William G. Walker, P.C., Tucson
By William G. Walker
Counsel for Respondent
 COLORADO CITY v. CENTENNIAL
Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Anni Hill Foster and Judge Michael J. Brown joined.

M c M U R D I E, Judge:

¶1 This special action comes from the denial of a defendant’s
motion for summary judgment on affirmative defenses to a state antitrust
claim. We accept jurisdiction but deny relief. We hold the defendant failed
to show an accrual date entitling it to summary judgment on limitations
grounds under Arizona Revised Statutes (“A.R.S.”) § 12-821. Similarly, we
hold the defendant failed to show government action entitling it to
summary judgment on immunity grounds under A.R.S. § 12-820.01.
Finally, we hold immunity was unavailable under the state-action antitrust
liability exemption.

FACTS AND PROCEDURAL BACKGROUND

¶2 For decades, Colorado City has owned and helped control a
landfill. In 2022, Centennial Park Disposal, a private garbage-collection
1

company, sued Colorado City for forcing municipal water-service
customers to pay for municipal garbage-collection service.

¶3 The superior court permitted Centennial to file a second
amended complaint seeking injunctive relief and damages for
“anti-competitive” behavior in “violation of A.R.S. § 9-[516]” and
“violat[ion of] Arizona law, as stated in Arizona Attorney General’s
Opinion 57-40.” Section 9-516 provides that only through acquisition may
municipalities displace lawful, adequate “public utility service.” A.R.S.
§ 9-516(A). The attorney general’s opinion reads that municipalities may
not refuse water service to collect delinquent garbage-collection and
disposal charges. Op. Ariz. Att’y Gen. 57-40. The superior court construed

1 A municipality that shares responsibility for controlling the landfill
was dismissed from the underlying action.

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the pleading as claiming violations of A.R.S. § 9-516 and Arizona’s Uniform
State Antitrust Act, A.R.S. §§ 44-1401 to -1416.2

¶4 Colorado City moved for summary judgment on multiple
grounds. The superior court ruled that Colorado City had not violated
A.R.S. § 9-516 but denied summary judgment on limitations and immunity
grounds. As for limitations, the court determined that because evidence
showed ongoing anticompetitive behavior “even after the parties’ meeting
several years ago,” the question of “whether the city ceased any
anticompetitive acts in sufficient time to bar Plaintiff’s claims should be left
to the jury to determine.” Regarding immunity, the court ruled Colorado
City was not immune under A.R.S. § 12-820.01 because its conduct was
neither a “judicial” nor a “legislative” function, and it was not immune
under the state-action exemption doctrine because several statutes “express
a competition-based policy” for garbage collection.

¶5 Colorado City petitioned for special-action relief from the
denial of summary judgment on limitations and immunity grounds.

JURISDICTION

¶6 We typically will not accept jurisdiction of special actions
challenging the denial of summary judgment. Schlussel v. Gerlach, 240 Ariz.
29, 31, ¶ 5 (App. 2016). We accept jurisdiction here because a party usually
has no right to direct appeal or post-judgment review of an order denying
summary judgment, Martin v. Schroeder, 209 Ariz. 531, 533, ¶ 5 (App. 2005),
and a party who claims immunity loses its benefit if forced to stand trial,
Mashni v. Foster, 234 Ariz. 522, 526, ¶ 14 (App. 2014); see Ariz. R.P. Spec. Act.
2(b).

DISCUSSION

¶7 We review summary-judgment rulings de novo, considering
only the evidence presented to the superior court when it addressed the
motion. See Vig v. Nix Project II P’ship, 221 Ariz. 393, 396, ¶ 10 (App. 2009).
Summary judgment is appropriate only when “the moving party shows
that there is no genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). A
defendant seeking summary judgment based on an affirmative defense has

2 Colorado City complains in its reply that it has been forced to defend
against a “phantom case” because Centennial did not cite the antitrust act.
That issue is beyond the scope of this special action.

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the initial burden of showing the absence of any genuine issues of material
fact as to the defense. Vig, 221 Ariz. at 396, ¶ 11. Conclusory statements
cannot meet the burden. Orme Sch. v. Reeves, 166 Ariz. 301, 310 (1990).

A. The Superior Court Correctly Denied Summary Judgment on
Limitations Grounds.

¶8 We first examine the denial of summary judgment on
limitations grounds, bearing in mind that limitations defenses generally are
disfavored. See Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182
Ariz. 586, 590 (1995).

¶9 Centennial’s claims are governed by A.R.S. § 12-821, which
provides that “[a]ll actions” against public entities must be brought within
one year of accrual. Accrual typically occurs when the plaintiff realizes the
fact of damage and knows or reasonably should know its cause. A.R.S.
§ 12-821.01(B); Dube v. Likins, 216 Ariz. 406, 411, ¶ 7 (App. 2007).

¶10 To prevail, Colorado City had to put forth prima facie evidence
that Centennial’s claim accrued more than one year before its 2022
complaint. See Logerquist v. Danforth, 188 Ariz. 16, 19 (App. 1996). Colorado
City failed to do so. Although Colorado City identified a 2018 meeting as
the accrual event, the record before us does not explain how the meeting
triggered the accrual. Colorado City’s conclusory statements about accrual
were insufficient. See Orme Sch., 166 Ariz. at 310. On special action,
Centennial provided deposition testimony about the meeting—but, as
Colorado City correctly recognizes by its request to strike that testimony,
we cannot extrapolate an accrual date from evidence not presented to the
superior court when it addressed summary judgment. See Vig, 221 Ariz. at
396, ¶ 10. We also note that even if the testimony showed all claims accrued
at the 2018 meeting, the testimony also arguably revealed facts that support
equitable tolling. See Porter v. Spader, 225 Ariz. 424, 428, ¶ 11 (App. 2010) (A
limitation period may be equitably tolled when the defendant’s affirmative
acts of fraud or concealment induced the plaintiff to delay seeking timely
legal redress.).

¶11 Colorado City is not entitled to special-action relief from the
superior court’s denial of summary judgment on limitations grounds.

B. The Superior Court Properly Denied Summary Judgment on
Immunity Grounds.

¶12 We next examine the denial of summary judgment on
immunity grounds. The superior court found no immunity under either

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A.R.S. § 12-820.01 or the state-action exemption to antitrust liability. We
address each immunity in turn.

1. A.R.S. § 12-820.01 Immunity

¶13 We first address immunity under A.R.S. § 12-820.01. Section
12-820.01 provides that “[a] public entity shall not be liable for acts and
omissions of its employees constituting either . . . [t]he exercise of a judicial
or legislative function . . . [or t]he exercise of an administrative function
involving the determination of fundamental governmental policy.” This
statute provides a limited exception to our general policy favoring
government accountability, and we construe it narrowly. Doe ex rel. Doe v.
State, 200 Ariz. 174, 175-76, ¶ 4 (2001); Schabel v. Deer Valley Unified Sch. Dist.
No. 97, 186 Ariz. 161, 164 (App. 1996). We will find immunity only if the
statute “clearly applies,” Schabel, 186 Ariz. at 164, with the party claiming
immunity carrying the burden of proof, Fid. Sec. Life Ins. v. State, 191 Ariz.
222, 225, ¶ 9 (1998). Part of that burden is showing the claim is based on
affirmative, consciously considered government decisions or acts. Tostado
v. City of Lake Havasu, 220 Ariz. 195, 199, ¶ 16 (App. 2008). The statute can
never apply to claims for injunctive relief. Zeigler v. Kirschner, 162 Ariz. 77,
84 (App. 1989).

¶14 Colorado City argued it was entitled to summary judgment
under A.R.S. § 12-820.01 because it acted according to its legislative or
qualifying administrative functions. To prove the exercise of its legislative
function, a public entity must show it created, defined, or regulated rights.
County of La Paz v. Yakima Compost Co., 224 Ariz. 590, 603, ¶ 35 (App. 2010).
To show the exercise of its administrative function involving the
determination of fundamental governmental policy—which includes the
provision of governmental services, A.R.S. § 12-821.01(B)(1)(d)—a public
entity must show that it either made a policymaking decision or its conduct
directly flowed from such a decision. Kohl v. City of Phoenix, 215 Ariz. 291,
295-96, ¶¶ 19, 24 (2007). Operational or implementation decisions do not
qualify for protection under the statute. Id. at 295, ¶ 19.

¶15 A.R.S. § 12-820.01 is inapplicable to claims for injunctive relief
against public officials. See Zeigler, 162 Ariz. at 84. Further, to the extent that
Centennial seeks monetary damages, we conclude Colorado City failed to
show the statute applied. Colorado City did not show (and provided no
significant argument) that its conduct stemmed from an affirmative
decision to create, define, or regulate rights or establish a policy scheme. See
Schabel, 186 Ariz. at 164; Fid. Sec. Life Ins., 191 Ariz. at 225, ¶ 9; Tostado, 220
Ariz. at 199, ¶ 16.

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¶16 We hold Colorado City is not entitled to special-action relief
from the superior court’s denial of summary judgment on A.R.S.
§ 12-820.01 immunity grounds.

2. State-Action Exemption

¶17 We next address immunity under the state-action exemption
to antitrust liability. The exemption is a federal doctrine premised on
federalism and state sovereignty. See Town of Hallie v. City of Eau Claire, 471
U.S. 34, 38 (1985). When a municipality is accused of violating the federal
antitrust act, the exemption precludes liability if the anticompetitive
activities follow an affirmatively articulated state policy to displace
competition with regulation or monopoly public service. Id.; see also N.C.
State Bd. of Dental Exam’rs v. Fed. Trade Comm’n, 574 U.S. 494, 507-08 (2015).
The policy must be expressly outlined in or logically result from statutes.
Town of Hallie, 471 U.S. at 41. Compulsory statutory language is strong
evidence of an anticompetition policy but is not a prerequisite. See id. at
45-46.

¶18 The parties assume the exemption extends to claims brought
under Arizona’s antitrust act. We have found no Arizona case on point, but
the Ninth Circuit has posited the exemption applies to Arizona law.
Mothershed v. Justices of Sup. Ct., 410 F.3d 602, 609-10 (9th Cir. 2005). We
agree with the Ninth Circuit for two reasons. First, Arizona’s antitrust act
is intended to parallel the federal act. Bunker’s Glass Co. v. Pilkington PLC, 206 Ariz. 9, 12, 15-16, ¶¶ 7, 19-20 (2003); A.R.S. § 44-1412 (Courts may “use
as a guide interpretations given by the federal courts to comparable federal
antitrust statutes.”). Second, even recognizing that the federalism and
sovereignty concerns underlying the exemption are not implicated in state
antitrust cases, it would be illogical to hold municipalities liable for
anticompetitive conduct sanctioned by the state legislature. Vandenberg v.
Aramark Ed. Servs., 81 So. 3d 326, 335 (Ala. 2011); but see Brownsburg Cmty.
Sch. Corp. v. Natare Corp., 824 N.E.2d 336, 348 (Ind. 2005). But even if the
exemption applies, its elements are not met here as our statutory scheme
does not clearly articulate a state policy for municipalities to displace all
competition around garbage collection.

¶19 Colorado City relies on A.R.S. § 9-516. Under that statute, a
municipality may oust a preexisting “public utility service”—which
includes garbage collection, Mohave Disposal, Inc. v. City of Kingman, 186
Ariz. 343, 348-49 (1996)—via acquisition and afterward maintain a

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monopoly to the extent of the historical service area. A.R.S. § 9-516(A), (D).3
This follows the caselaw recognizing garbage collection and disposal as a
government function designed to preserve public health. City of Scottsdale
v. Mun. Ct. of City of Tempe, 90 Ariz. 393, 398 (1962). Relatedly, A.R.S.
§ 49-742 authorizes municipalities to establish user fees to cover the cost of
development, construction, operation, administration, and financing of
solid waste activities. And Colorado City points out that municipal
bundling of water and garbage-collection services is common throughout
the state.

¶20 But our statutes contemplate that municipalities must
encourage private garbage collection in some cases. Most significantly,
A.R.S. § 49-746 provides that for “solid waste management services to
commercial, industrial or multifamily residential properties within or to the
municipality”—which includes collection services, A.R.S. § 49-701(47)—a
municipality “shall not be mandated to provide” these services, “shall not
prohibit or unreasonably restrain a private enterprise from delivering”
these services, and “shall prescribe rules for the delivery” of these services
“that promote availability of these services and competition in the delivery
of these services.” A.R.S. § 49-746(A)-(C). Additionally, A.R.S. § 9-511.03
provides that typically, municipalities that elect to provide
garbage-collection services beyond their boundaries must bear tax, fee, and
cost obligations equivalent to those of private companies.

¶21 Taking the applicable statutes together, we cannot say our
legislature has professed a clear policy for municipalities to monopolize all
garbage collection. See also Mohave Disposal, 186 Ariz. at 349 (The legislature
“generally protects private enterprise in the area of solid waste
management” through A.R.S. § 49-746(A).). In fact, A.R.S. § 49-746

3 The parties and the superior court assumed such ouster is authorized
under A.R.S. § 9-516’s eminent domain right. That assumption is not clear.
Section 9-516(B) references an eminent domain right for the acquisition of
“the facilities of a public service corporation.” Garbage-collection services
qualify as a “public utility service” under A.R.S. § 9-516(A), but their
providers are not “public service corporation[s]” under A.R.S. § 9-516(B).
See Mohave Disposal, 186 Ariz. at 346, 348-49. We need not resolve the issue
here for other reasons.

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expresses a policy of encouraging private garbage collection for at least
some services Centennial alleges it provides within Colorado City.4

¶22 We hold Colorado City is not entitled to special-action relief
from the superior court’s denial of summary judgment on state-action
exemption grounds.

CONCLUSION

¶23 We accept special-action jurisdiction but deny relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

4 Centennial alleges it “services residential and commercial venues”
within Colorado City. We note that although all commercial-venue services
fall within the scope of A.R.S. § 49-746, not all residential-venue services do.
The nature of Centennial’s residential services is unclear.

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