Gregory Real v. Keegan

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GREGORY REAL ESTATE AND
MANAGEMENT LLC, Plaintiff/Appellant,

v.

MILES M. KEEGAN, et al., Defendants/Appellees.

No. 1 CA-CV 20-0419
FILED 03-30-2021

Appeal from the Superior Court in Maricopa County
No. CV2020-007629
The Honorable Christopher A. Coury, Judge

APPEAL DISMISSED AS MOOT

COUNSEL

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

Snell & Wilmer L.L.P., Phoenix
By Brett W. Johnson, Colin P. Ahler, Tracy A. Olson, Ian R. Joyce
Co-Counsel for Defendant/Appellee Governor Douglas A. Ducey

Arizona Governor’s Office, Phoenix
By Anni L. Foster, Nicole Ong Colyer
Co-Counsel for Defendant/Appellee Governor Douglas A. Ducey
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge David B. Gass delivered the decision of the Court, in which
Judge Michael J. Brown and Judge David D. Weinzweig joined.

G A S S, Judge:

¶1 Gregory Real Estate and Management LLC brings this appeal
challenging the constitutionality of Executive Orders 2020-14 and 2020-49,
issued by Governor Douglas Ducey, which restrict enforcement of certain
residential evictions. We dismiss the appeal as moot because the executive
orders have expired and “our action as a reviewing court will have no effect
on the parties.” See Cardoso v. Soldo, 230 Ariz. 614, 617, ¶ 5 (App. 2012).

FACTUAL AND PROCEDURAL HISTORY

¶2 In March 2020, the Governor issued Executive Order 2020-14
(the first order), temporarily delaying enforcement of residential eviction
actions under specific conditions. As relevant here, the first order granted
eviction relief to tenants who could show they “suffered a substantial loss
of income” because of the COVID-19 pandemic. See Exec. Order No. 2020-
14. On its face, the first order expired in July 2020. Id. Shortly before the first
order was to expire, the Governor issued Executive Order 2020-49 (the
second order) extending the eviction moratorium until October 31, 2020.
The Governor has not extended the eviction moratorium further, and both
orders now have lapsed.

¶3 In May 2020, Gregory brought an eviction action in
Hassayampa Justice Court. After a trial, the justice court issued a judgment
awarding Gregory “immediate possession of the subject premises,” and
$3,954.80 in past-due rent and fees. When the tenants did not surrender the
property, Gregory sought a writ of restitution. Following arguments, the
justice court found the tenants had shown “a significant loss of income due
to Covid-19 in accordance with” the first order. Accordingly, the justice
court stayed the writ “until the last day of the [first] order . . . or until the
[tenants’] income has been restored, whichever comes first.” The stay
explicitly ordered execution of the writ “on the earlier possible date.”

¶4 On July 2, 2020, Gregory filed a special action in the superior
court challenging the first order’s constitutionality and seeking an order

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Decision of the Court

compelling the justice court to “forthwith issue and deliver to the Constable
of their precinct . . . the writ of restitution.” On July 22, 2020, the superior
court entered judgment rejecting each of Gregory’s constitutional
challenges. Gregory timely appealed. This court has jurisdiction under
article VI, section 9, of the Arizona Constitution, A.R.S. § 12-2101.A.1, and
Ariz. R.P. Spec. Act. 8(a).

ANALYSIS

¶5 On appeal, Gregory asks this court to vacate the superior
court’s judgment and direct the justice court to lift its stay and issue the writ
of restitution. But that relief is no longer necessary—the justice court’s stay
expired on its own terms on October 31, 2020.

¶6 “A question is moot if it seeks to determine an abstract
problem which does not arise upon existing facts or rights.” Mueller v. City
of Phoenix ex rel. Phx. Bd. of Adjustment II, 102 Ariz. 575, 583 (1967). Long-
standing Arizona Supreme Court precedent directs courts to “refrain from
considering” such questions unless they raise an issue “of great public
importance or one which is likely to recur.” See Fraternal Ord. of Police Lodge
2 v. Phx. Emp. Rels. Bd., 133 Ariz. 126, 127 (1982). Gregory’s reply brief
invites this court to exercise our discretion and apply these exceptions to
reach the merits of its appeal. We decline the invitation.

¶7 Though we recognize the potential interest in the issues raised
by Gregory’s appeal, “[i]t is not an appellate court’s function to declare
principles of law which cannot have any practical effect in settling the rights
of litigants.” See Progressive Specialty Ins. Co. v. Farmers Ins. Co. of Ariz., 143
Ariz. 547, 548 (App. 1985). “Nor [does this court] act as a fountain of legal
advice.” Contempo–Tempe Mobile Home Owners Ass’n v. Steinert, 144 Ariz.
227, 229 (App. 1985). The executive orders Gregory challenges expired long
ago. So too the justice court’s stay. Put simply, the passage of time has given
Gregory the relief it sought by court order.

¶8 Further, “nothing in the record before us suggests” the
Governor will issue a third eviction moratorium. See Cardoso, 230 Ariz. at
617, ¶ 8. In fact, there is no reason for the Governor to take such action. The
Centers for Disease Control has issued its own independent, eviction
moratorium. See 86 Fed. Reg. 8020-01 (Feb. 3, 2021). And the trend in
Arizona has been to lift, rather than reimpose, limitations. See Exec. Order
No. 2021-06 (rescinding several COVID-19 based restrictions).

¶9 Finally, judicial restraint is fundamental when—as here—any
opinion by this court could unnecessarily constrain another branch of

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Decision of the Court

government in areas of public policy. See Ariz. Const. art. III (“[E]xcept as
provided in this constitution, such departments shall be separate and
distinct, and no one of such departments shall exercise the powers properly
belonging to either of the others.”).

ATTORNEY FEES ON APPEAL

¶10 Gregory seeks its attorney fees and costs on appeal under
Arizona Rule of Procedure for Special Actions 4(g) and ARCAP 21. Because
the appeal is moot, we exercise our discretion and deny the request.

CONCLUSION

¶11 Gregory’s appeal is dismissed as moot.

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

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