Span v. Maricopa

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

PETE SPAN, Plaintiff/Appellant,

v.

MARICOPA COUNTY TREASURER, Defendant/Appellee.

No. 1 CA-CV 16-0762
FILED 2-19-2019

Appeal from the Superior Court in Maricopa County
No. CV2008-007180
The Honorable James T. Blomo, Judge, Retired

AFFIRMED

COUNSEL

Law Office of Brian K. Stanley, Tempe
By Brian K. Stanley
Counsel for Plaintiff/Appellant

Maricopa County Attorney's Office, Phoenix
By D. Chad McBride, Charles Trullinger
Counsel for Defendant/Appellee

OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Kent E. Cattani joined. Judge Jennifer M. Perkins concurred
in part and dissented in part.
 SPAN v. MARICOPA
Opinion of the Court

J O H N S E N, Judge:

¶1 Pete Span failed to pay taxes assessed against property he
owned in Maricopa County. The purchaser of the resulting tax lien
eventually filed to foreclose the lien. Notified of the pending action, Span
paid $102,989.94 to redeem the lien, and Maricopa County forwarded the
money to the purchaser of the lien. This court later ruled the lien had
expired before the purchaser filed to foreclose. At issue now is an unjust-
enrichment claim Span filed against the County to recover the amount he
paid to redeem the lien. The superior court entered summary judgment
against him. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 After Span failed to pay property taxes due on his property
for 1993, Maricopa County sold a tax lien on the property at auction in 1995.
The County Treasurer issued a certificate of purchase to the buyer of the
lien (the "CP holder"), which later paid taxes due on the property for 1994,
1995 and 1996. The CP holder, a profit-sharing plan, filed a complaint to
foreclose its tax lien on February 9, 2007. The foreclosure complaint
properly named Span and the County as defendants, and the CP holder
served the defendants by publication. The complaint alleged that on
January 3, 2007, the CP holder had sent Span notice by certified mail of its
intent to foreclose. See Ariz. Rev. Stat. ("A.R.S.") § 42-18202(A) (2019)
(holder of certificate must give notice by certified mail to property owner at
least 30 days before filing a foreclosure complaint).1

¶3 On March 12, 2007, the County Treasurer sent Span a form
letter apparently triggered by the filing of the foreclosure complaint. The
letter listed the amounts the CP holder had paid and stated: "This statement
shows the amount due and payable in order to redeem your property. To
remove these tax liens, please return this statement with your payment
. . . ." Span paid the County Treasurer the redemption amount of
$102,989.94 on March 30. On appeal, he argues he made his payment
"under protest," and our record contains a one-page screenshot of a
document from the County Treasurer's Office dated March 30, 2007, that
states, "paid under protest for 10 yr exp. statute." The County Treasurer
forwarded Span's payment to the CP holder, and the superior court
dismissed the foreclosure action on April 20, 2007.

1 Absent material revision since the relevant date, we cite the current
version of a statute or rule.

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Opinion of the Court

¶4 Span did not respond to the foreclosure complaint before it
was dismissed, nor did he move to enjoin the foreclosure. Instead, on May
7 he filed a document titled "Special Appearance Request for Clarification
of the Court's Order, and Request for Tolling the Time & Additional Time
to File an Answer and File a Counter-Claim, Etc." In that filing, Span
asserted that the court had dismissed the foreclosure complaint without his
knowledge or consent and argued he had a right to file a counterclaim
against the CP holder and the County. There was no response to Span's
filing, and the superior court made no further rulings in the matter.

¶5 The following year, Span filed a complaint against the
County, the County Treasurer and others (but, notably, not the CP holder).
Span alleged that the lien had expired before the CP holder filed for
foreclosure and that the County had improperly required him to redeem
the expired lien. He alleged breaches of contract and fiduciary duty,
negligence, violation of statutory and constitutional rights, and unjust
enrichment. As damages, he sought recovery of what he paid to redeem
the lien, plus interest, and $500,000 "or more" for asserted violations of his
constitutional rights.

¶6 The superior court entered judgment for the defendants on all
claims and also found Span had not timely served two individual
defendants, including the Maricopa County Treasurer. On appeal, this
court reversed, holding the lien had expired by statute in 2005, as Span had
argued. Span v. Maricopa County Treasurer, 1 CA-CV 12-0771, 2014 WL
1233463, at *4, ¶ 14 (App. Mar. 25, 2014) (mem. decision); see also A.R.S. §
42-18208(A) (2019). The court also concluded, however, that Span had
waived any challenge to the dismissal of his claims against the individual
defendants by failing to raise that ruling on appeal. Id. at *1, ¶ 1, n.1.

¶7 On remand, the parties filed cross-motions for summary
judgment. The County pointed out that it did not possess Span's
redemption payment, having forwarded it to the CP holder. The County
further argued the CP holder had given Span 30 days' notice of the
foreclosure action so that he could have challenged the validity of the lien
in that matter before he paid to redeem it. Span, meanwhile, sought
summary judgment that the Treasurer was still a party to the case.

¶8 The superior court granted the County's motion for summary
judgment, finding that under Fridena v. Maricopa County, 18 Ariz. App. 527
(1972), Span had no claim against the County, and denied Span's cross-
motion for summary judgment regarding the Treasurer. Span timely

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 SPAN v. MARICOPA
Opinion of the Court

appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2019)
and -2101(A)(1) (2019).

DISCUSSION

¶9 Summary judgment is proper "if 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). On appeal
from entry of summary judgment, we review questions of law de novo and
consider the evidence and all reasonable inferences in the light most
favorable to the non-moving party. Lennar Corp. v. Transamerica Ins. Co., 227
Ariz. 238, 242, ¶ 7 (App. 2011).

A. Respondeat Superior and Unjust Enrichment.

¶10 The County urges us to affirm the judgment under Fridena,
which addressed a county's liability based on respondeat superior for the
conduct of a county official. See 18 Ariz. App. at 528-29. But Span's unjust
enrichment claim is based at least in part on actions by the County – its
receipt of and failure to return money that Span argues belongs to him –
and not solely on the actions of a County employee or official. Because
Span's claim includes allegations that are not based solely on vicarious
liability or respondeat superior, Fridena does not dispose of the claim.

B. Unjust Enrichment.

¶11 Span's complaint alleged that even though the lien had
expired before the foreclosure action commenced, the County "bilked and
forced" him to pay to redeem the lien. Underlying Span's claim was A.R.S.
§ 42-18208, a statute enacted in 2002, which, as amended and as relevant
here, states:

If a tax lien that was purchased pursuant to § 42-18114 on or
before August 31, 2002 is not redeemed and the purchaser or
the purchaser's heirs or assigns fail to commence an action to
foreclose the right of redemption on or before ten years from
the date that the lien was purchased, the certificate of
purchase or registered certificate expires and the lien is void.

A.R.S. § 42-18208(A); see A.R.S. § 42-18127 (2019) (same, for liens purchased
"from and after August 22, 2002"); Span, 1 CA-CV 12-0771, at *3, ¶ 12.
Span's complaint alleged that by 2007, the lien the CP holder purchased on
his property in 1995 had expired and "became invalid" because the CP
holder did not commence foreclosure within ten years.

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Opinion of the Court

¶12 In addressing Span's allegations, we note first that there is no
evidence in the summary judgment record for his contention that the
Treasurer "bilked," compelled or coerced him to pay to redeem the lien. As
recounted above, the Treasurer sent a form letter to Span after the CP holder
filed the foreclosure action to inform him of the tax payments the CP holder
had made on his property. But the Treasurer only informed Span of the
amount he would have to pay if he chose to redeem the lien; the letter did
not threaten to take any action or impose any consequence against Span if
he decided not to pay. By Span's account, he paid the money to the County
"under protest" because the CP holder's foreclosure action was time-barred.
But on summary judgment, he offered no evidence to show the Treasurer
did anything to compel him to make the payment, "under protest" or
otherwise. And his assertion to the contrary belies logic: Whether Span
would decide to redeem the lien was a matter entirely between him and the
CP holder. Once the CP holder had paid the taxes on the property, it was
irrelevant to the County whether Span chose to redeem. Moreover, Span
does not dispute that, after accepting his redemption payment, the County
immediately forwarded the money to the CP holder. See A.R.S. § 42-
18155(A) (2019) ("On demand of any person who is entitled to redemption
money held by the county treasurer, the treasurer shall pay the money to
that person on the surrender of the certificate of purchase or on the
redemption of the registered certificate for the redeemed tax lien.").

¶13 When Span commenced this litigation the following year, the
County objected to his contention that the tax lien on his property had
expired. The County argued the 10-year period of repose was tolled when
the holder of the lien paid property taxes ("subtaxes") imposed on the
property in subsequent years because, by statute, the subtaxes had been
added to the original certificate of purchase. See A.R.S. § 42-18121(A) (2019).
The County argued that because the CP holder paid taxes due on Span's
property for 1994, 1995 and 1996, making the last payment (for tax year
1996) on June 11, 1997, the lien "did not become eligible for expiration . . .
until June of 2007 [i.e., 10 years after the CP holder last paid a subtax]." As
noted above, in the prior appeal in this case, this court disagreed with the
County and held that the statutes did "not provide that paying subsequent
taxes tolls or extends" the 10-year period of repose. Span, 1 CA-CV 12-0771,
at *4, ¶ 14. (After issuance of that decision, the legislature amended the tax
lien and foreclosure statutes so that payment of a subtax by the holder of a
certificate of purchase in Maricopa County will give rise to a separate new

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Opinion of the Court

lien for that year's taxes that will be subject to its own 10-year period of
repose.2)

¶14 This court's disagreement with the County's understanding of
the prior version of the statutes, however, did not mean the County was
unjustly enriched by Span's redemption payment or that Span otherwise is
entitled to relief against the County. Span could have challenged the
validity of the lien by seeking to enjoin the foreclosure on that ground. A
ruling in his favor would have returned the property to him free and clear
of the tax lien absent any redemption obligation. That result would have
been a windfall to Span – he would have retained the property without
having paid the taxes, and the CP holder, which had paid the taxes on the
property, would have had no further recourse. But Span did not challenge
the foreclosure action, and we are unpersuaded that he is entitled to obtain
that windfall at the expense of the County by claiming unjust enrichment.

¶15 To make a claim for unjust enrichment, a plaintiff must show
(1) an enrichment, (2) an impoverishment, (3) a connection between the
enrichment and impoverishment, (4) the absence of justification for the
enrichment and impoverishment, and (5) the absence of a remedy at law.
Wang Elec., Inc. v. Smoke Tree Resort, LLC, 230 Ariz. 314, 318, ¶ 10 (App.
2012). Unjust enrichment is a means of restitution, which is a "flexible,
equitable remedy" that looks to "'the ties of natural justice and equity' to
make compensation for the benefits received." State v. Ariz. Pension
Planning, 154 Ariz. 56, 58 (1987) (quoting Murdock-Bryant Const., Inc. v.
Pearson, 146 Ariz. 48, 53 (1985)).

¶16 As the County argues, unjust enrichment is not available
when the defendant has not retained a benefit. The factual predicate of an
unjust enrichment claim is that someone been "unjustly enriched." See, e.g.,
Murdock-Bryant Const., 146 Ariz. at 54 ("[T]he mere receipt of a benefit is
insufficient. Restitutionary relief is allowable only when it would be

2 The 2015 legislation directed that, beginning in calendar year 2016,
when the holder of a certificate of purchase for tax year 2014 and afterward
in a county of more than 3,000,000 pays taxes due on the property in
subsequent years, the treasurer must issue a separate certificate of purchase
for each subsequent year's taxes. 2015 Ariz. Sess. Laws, ch. 322, § 2 (1st Reg.
Sess.) (amending A.R.S. § 42-18121(B)). The legislation further provided
that each such certificate of purchase for a subsequent year's taxes is subject
to its own ten-year repose period that commences upon its issuance. 2015
Ariz. Sess. Laws, ch. 322, § 5 (1st Reg. Sess.) (amending A.R.S. § 42-
18201(B)).

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Opinion of the Court

inequitable or unjust for defendant to retain the benefit without
compensating plaintiff."); Pyeatte v. Pyeatte, 135 Ariz. 346, 352 (App. 1982)
(plaintiff seeking restitution "must demonstrate that [defendant] received a
benefit, that by receipt of that benefit [defendant] was unjustly enriched at
[plaintiff's] expense").

¶17 Span argues the County was "enriched by the double receipts"
of the taxes due on his property, but that is not true. The County did not
keep Span's payment, but instead forwarded the money to the CP holder,
which had paid the taxes on Span's property in the first instance. When the
County delivered Span's payment to the CP holder, it did so under color of
law because it understood the tax lien remained valid due to the CP holder's
payments of subtaxes on the property. Span cites no authority to support
his contention that a party that forwards a payment to another under color
of law, as the County did here, may be liable on a claim to recoup such a
payment under unjust enrichment.

¶18 Our dissenting colleague argues that in this situation, one
cannot avoid liability by "funneling" the benefit to a third party. Infra ¶ 29.
We agree that a party who unjustly obtains an asset cannot avoid an unjust
enrichment claim by simply gifting the asset to someone else. But that is
not what happened here. After Span chose to pay the redemption amount,
the County paid it over to the CP holder because the County understood
the law required it to do so. The dissent contends the County Treasurer
knew at the time of the foreclosure action that a tax lien expires after 10
years. Infra ¶ 31. There is no dispute about that general proposition; the
dispute was whether the 10-year repose period would be tolled when, after
purchasing a lien, a CP holder paid other taxes as they came due on the
property in subsequent years. The dissent cites a fragment of a web posting
that Span submitted on summary judgment, but that evidence hardly
supports the dubious proposition that the County knew its position on that
issue was contrary to law. Labeled "Page 4 of 4," the posting does not
address the "subtax" issue on which the County's legal argument turned.

¶19 Furthermore, Span's unjust enrichment claim fails as a matter
of equity. Under the Restatement (Third) of Restitution and Unjust
Enrichment ("Restatement") § 62 (2011), unjust enrichment does not
necessarily result whenever an obligor makes a payment that has become
unenforceable due to the passage of time. See Restatement § 62, illus. 1 &
cmts. a, b. The Restatement explains that whether unjust enrichment has
occurred must be considered in such a case "in the context of the parties'
further obligations to each other" and "in view of the larger transactional
context within which the benefit has been conferred." Restatement § 62 &

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Opinion of the Court

cmt. a. Consistent with this principle, under Arizona law, a time-barred
debt is unenforceable but not extinguished. See Andra R Miller Designs LLC
v. US Bank NA, 244 Ariz. 265, 269, ¶ 11 (2018), see also Provident Mut. Bldg.–
Loan Ass'n v. Schwertner, 15 Ariz. 517, 518-19 (1914) (unpaid debt is not
extinguished by the expiration of the limitation period, "only the remedy
has been lost," preventing recovery when "properly invoked by the
debtor").

¶20 Under these principles, expiration of the tax lien due to the
passage of time does not entitle Span to recover his redemption payment
based on unjust enrichment. This principle was applied in Clifton
Manufacturing Co. v. United States, 76 F.2d 577 (4th Cir. 1935), a case in which
a taxpayer sued for a refund of taxes that were barred by the statute of
limitations. The taxpayer alleged it had executed a waiver consenting to
the taxes under the mistaken impression that the statutory period of
limitations had not expired. Id. at 578. The taxpayer argued he was entitled
to a refund because the Internal Revenue Service had induced the waiver,
but on appeal, the court noted that, as here, the government at the time was
"under the belief that an assessment and collection of the tax could still
legally be made." Id. at 579. The court affirmed judgment against the
taxpayer:

The real question . . . is whether such injustice would result
from the government's retention of the money paid by the
taxpayer as would justify the cancellation of the waivers. In
our opinion, the answer should be in the negative. It is of
great significance that the taxpayer was in truth indebted to
the United States for taxes in the amount which it paid. . . .
Thus the situation differs widely from the decided cases in
which a failure to rescind a transaction would have entailed
an unjust enrichment of the party against whom relief was
sought.

Id. at 581; see also Rothensies v. Edwin J. Schoettle Co., 46 F. Supp. 348 (E.D. Pa.
1939) (taxpayer not entitled to return of "abatement bond" posted during
appeal of tax challenge when collection of the tax was overturned on
limitations grounds). Unlike the claimants in these federal cases, Span is
not a taxpayer seeking a refund; the CP holder, of course, had paid the taxes
due on the property. Cf. A.R.S. § 42-11005(A) (2019) (suit to recover
property tax "illegally levied, assessed or collected"). But the underlying
principle -- unjust enrichment requires consideration of the overall context
of the transaction – applies here just as in those cases.

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 SPAN v. MARICOPA
Opinion of the Court

¶21 Our dissenting colleague asserts these authorities are
inapposite because Span asserts he made the redemption "under protest."
Infra ¶¶ 27-28. But that fact only helps doom his unjust enrichment claim.
Span was on notice of the foreclosure action and was a named defendant in
that matter. He also knew that the County disagreed with his contention
that the tax lien was void. On summary judgment, he averred that the
County told him to make the redemption payment "under protest and take
it to court." But, and contrary to the dissent's account, infra ¶ 28, Span did
not follow that advice. If Span believed the CP holder's lien was
unenforceable, it was up to him to enjoin foreclosure of that lien. Because
Span did not challenge the foreclosure, it went forward, and the County
delivered Span's redemption payment to the CP holder. The dissent's
position would require the County to engage attorneys to challenge a
foreclosure whenever a taxpayer objects to it or "protests" a required
payment. But neither our dissenting colleague nor Span cites authority for
that proposition, and imposing that duty on the County – rather than on
the protesting party – is not logical.

¶22 In sum, regardless whether Span might have successfully
prevented the CP holder from foreclosing on his property, he has not
established any unfairness in the overall result as between him and the
County such that he is entitled to relief from the County under principles
of unjust enrichment. The $102,989.94 redemption payment Span seeks to
recoup is the amount he would have had to pay in taxes imposed on his
property, but for the CP holder's payment of those taxes. As things now
stand, Span has not been unjustly deprived of anything – the redemption
payment he made is what he would have had to pay in the ordinary course
to keep the taxes current on property he now holds free of a lien. And the
County was not enriched because it did not retain the redemption payment,
but forwarded it to the CP holder, which had paid the taxes in the first place.
On the other hand, if Span were to prevail on his claim for unjust
enrichment, he would wind up owning the property free and clear of any
tax lien without having paid the taxes or their equivalent. And the County
effectively would have been compelled to relinquish $102,989.94 in taxes
that it properly assessed and collected against the property.3

¶23 For the same reason, we do not understand the dissent's
reference to the County's "claim" to the proceeds of the redemption, as if the
County were competing with Span for those funds. Infra ¶ 34. The County

3 Our record does not reveal whether Span has sought to recover his
redemption payment from the CP holder based on unjust enrichment or
any other theory.

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Opinion of the Court

had no claim to the money; it was entirely disinterested in whether Span
chose to make the payment. Likewise, there is no suggestion in the record
to support the dissent's assertion that the County's possession of the
proceeds was more than "momentary." Infra ¶ 32. When Span paid to
redeem the lien, the County acted pursuant to its understanding of its legal
obligation to forward the payment to the CP holder.

C. Claims Against the Individual Defendants.

¶24 Span also argues on appeal that this court's earlier decision
did not resolve his claims against the Treasurer. In the earlier decision, this
court ruled that Span waived his challenges to the superior court's
resolution of those claims by not raising them in that appeal. Span, 1 CA-
CV 12-0771, at *1, ¶ 1, n.1. When an appellant fails to challenge part of a
final judgment in an appeal, that part of the judgment is affirmed by
implication and may not be challenged in a subsequent appeal. See Bogard
v. Cannon & Wendt Elec. Co., 221 Ariz. 325, 332, ¶ 24 (App. 2009). As applied
here, Span's failure to make any argument in his first appeal about the
dismissal of the individual defendants means that dismissal was affirmed
in the first appeal.

CONCLUSION

¶25 We affirm the superior court's entry of judgment against
Span.

P E R K I N S, Judge, concurring in part, and dissenting in part:

¶26 I agree with the majority's conclusions that Fridena is
inapplicable and Span waived his claims against the individual defendants
(Parts A and C of the decision). I reach a different conclusion, however, on
Span's unjust enrichment claim. The majority's holding hinges on two
arguments: first, that the County need not repay Span for his redemption
payment because the County thought it was necessary at the time; and
second, that Span cannot regain his now-unencumbered property without
meeting his tax obligation. The County should not benefit from its own
legal mistake at Span's expense. The text of the statute contemplates that
Span may regain his unencumbered property under these circumstances.
The majority disregards this, violating established separation of powers. See
Ariz. Const. art. 3. I therefore respectfully dissent from the majority's unjust
enrichment holding.

¶27 The procedural posture of this case is crucial because the
standard of review for a grant of summary judgment colors the analysis

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Perkins, J., Concurring in Part, Dissenting in Part

throughout. The majority initially concludes that the record does not
contain evidence that the County compelled or coerced Span to make the
redemption payment. Supra at ¶ 12. But Span alleged he only paid the
redemption because the County told him failure to do so would increase
the amount due. And as the majority states, the court must view the facts
in the light most favorable to the non-moving party and weigh all
reasonable inferences in that party's favor. Supra at ¶ 9; Sanders v. Alger, 242
Ariz. 246, 248, ¶ 2 (2017). In support of his allegations of coercion, Span
offered a copy of his redemption payment check, on which he wrote that he
made the payment "under protest." At a minimum, this evidence is
sufficient to infer coercion and survive summary judgment.

¶28 Span further alleged that the County Treasurer advised him
to pay the amount demanded under protest, and then take the matter to
court for challenge. This is consistent with the process required for
challenging a tax collection as illegal. Citizens Telecomm. Co. of White
Mountains v. Ariz. Dep't. of Revenue, 206 Ariz. 33, 37, ¶ 12 (App. 2003) (citing
A.R.S. § 42-11005(A)) ("Arizona law requires that a taxpayer pay the tax
owed prior to bringing an illegal collection claim."). While § 42-11005(A)
does not clearly apply here, it provides a context for understanding the
Treasurer’s direction to Span, which he followed by paying the redemption
and subsequently bringing this case challenging the County’s actions.

¶29 The majority next concludes that the County has not retained
a benefit because it no longer has Span's redemption payment. Supra at ¶
17. But the County was paid twice, and gratuitously divested itself of the
second payment. The majority would absolve a defendant from liability for
unjust enrichment if the defendant funnels its ill-gotten gain to someone
else before the plaintiff comes knocking. That’s not fair or logical. Such an
inequitable result is particularly odd in the context of a claim seeking an
equitable remedy. The majority cites only cases that do not involve a
defendant who has divested himself of the purported benefit by passing it
along to a third party. See Murdock-Bryant Constr., Inc. v. Pearson, 146 Ariz.
48, 54 (1985) (holding that restitution was appropriate where the defendant
received, and thereby retained, the benefit of the plaintiff's services); Pyeatte
v. Pyeatte, 135 Ariz. 346, 352, 356-57 (App. 1982) (Restitution was
appropriate to wife when husband retained the benefit from her support of
the household during his legal education given he "left the marriage with
the only valuable asset acquired during the marriage—his legal education
and qualification to practice law.").

¶30 The majority disregards these facts. Neither the County nor
the majority disputes that the County had no legal obligation to disperse

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Perkins, J., Concurring in Part, Dissenting in Part

funds to the CP holder but did so anyway. Section 42-18155(A) instructs the
Treasurer to pay "any person who is entitled to redemption money."
(Emphasis added.) Given the void lien, Span v. Maricopa County Treasurer, 1
CA-CV 12-0771, 2014 WL 1233463 *4, ¶ 15 (Mar. 25, 2014) (mem. decision)
("By 2005, the original lien . . . had expired."), the CP holder was not entitled
to the money and the County's payment was contrary to law. Thus it was
legally gratuitous, even if we may not fairly characterize it as a "gift."

¶31 The County cannot escape the clutches of unjust enrichment
merely based on its purported legal mistake—we do not generally
recognize a legally valid excuse based on legal mistake. Jennings v. Woods, 194 Ariz. 314, 326, ¶ 60 (1999) ("West's ignorance of the law or mistaken
interpretation of it does not excuse him from its application."). The County
certainly should not be free from accountability under the text of the very
statutes that define its authority. Here, the Legislature placed the County
on notice of the ten-year limit imposed on property tax liens when it
adopted § 42-18208 in 2002. The record indicates the County was aware of
the statute's operation as of January 21, 2007, two months before notifying
Span of the foreclosure complaint. At that time, the County's Tax Certificate
Auction Web Site contained the question "What is the 'life' of a tax
certificate?" with the following answer: "Certificates are dated as of the date
the purchase was made. Ten years later, if the purchaser has taken no
additional action to foreclose the tax lien, the lien expires and is voided. No
payments will be made to the purchaser." Yet, the County paid the CP
holder here.

¶32 The majority also rejects Span's claim on the basis that the
County merely acted as a "conduit" between Span and the CP holder. Supra
at ¶ 17. The County’s demand for Span’s redemption payment was unjust
and it engaged in more than a mere “momentary possession” given the
statutory restriction to pay only those legally entitled to receive payments.
To be sure, the majority’s legal authorities—the Restatement (Third) and a
1935 tax case–instruct that there is no unjust enrichment when the plaintiff
has made a payment for a debt that "has been rendered unenforceable by
the passage of time." Supra at ¶ 19-20. But neither authority encompasses
the situation at hand.

¶33 Section 62 of the Restatement (Third), comment a, tells us to
look to "the larger transactional context within which the benefit has been
conferred." The Fourth Circuit did so when considering tax payments made
despite the expiration of the statute of limitations. The court found "great
significance that the taxpayer was in truth indebted to the United States for

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Perkins, J., Concurring in Part, Dissenting in Part

taxes in the amount which it paid." Clifton Mfg. Co. v. United States, 76 F.2d
577, 581 (4th Cir. 1935).

¶34 Clifton is thus distinguishable. First, both the taxpayer and the
government believed the tax payment was owed at the time it was made;
neither party recognized that the limitations period had run. So the plaintiff
did not pay "under protest" and the defendant did not demand payment
despite being alerted to a legal infirmity in its claim to the money. Second,
the law at issue in this case rendered the County's claim to Span's
redemption payment void—this was not a situation where the debt was still
owed but the government simply couldn't collect it because of a statute of
limitation. Rather, the CP holder had already paid the tax debt to the
County and the only remaining debt was by operation of the tax lien, which
§ 42-18208(A) declared void. The County had no statutory authority to
collect Span's redemption payment and no indebtedness remained.

¶35 The majority rejects restitution for Span because it would
result in a windfall—he would "own[] the property free and clear of any tax
lien without having paid the taxes or their equivalent." Supra at ¶ 21. But,
even if true, the legislature has mandated such a windfall and our role is
not to question the wisdom of legislative action.

¶36 There is no question that Span, having repeatedly failed to
pay his property taxes, is not a particularly sympathetic plaintiff. Similarly,
however, the County is not a particularly sympathetic defendant. More
importantly, a request for equitable relief does not transform our role into
the arbiter of which party is more sympathetic. Equitable relief is a judicial
means of ensuring a right result. It is not an invitation for the judiciary to
invade the Legislature's province by subverting the legislative will as
expressed in the plain text of a statute. The foreclosure action and the
County's payment to the CP holder were each contrary to the operative

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 SPAN v. MARICOPA
Perkins, J., Concurring in Part, Dissenting in Part

statute, while the reversion of an unencumbered property ownership to
Span falls directly within the statutory text. The equities under such
circumstances do not weigh in the County's favor.

¶37 I would reverse the superior court's grant of summary
judgment on Span's unjust enrichment claim, and therefore respectfully
dissent as to part B.

AMY M. WOOD • Clerk of the Court
FILED: AA

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