In Horton v. Hartsook, et al., the Hortons brought suit to, among other things, stop Hartsook and several other owners from leasing their condominiums in Rainbow Cove, Pinetop Lakeside, Arizona on a short-term basis to vacationers. Horton claimed that short-term vacation leases were prohibited by the covenants, conditions and restrictions for the development.
Berk & Moskowitz defended the Hortons’ claims on behalf of the owners. The Navajo County, Arizona Superior Court ruled in favor of the owners and found that short-term vacation leasing was allowed. The Hortons appealed. The Arizona Court of Appeals affirmed the trial court’s ruling. The Court of Appeals concluded that the covenants were clear and unambiguous and that short-term vacation leasing was allowed in Rainbow Cove.
Read the Rainbow Cove Decision.
The Arizona Court of Appeals has ruled, for the first time in an Arizona published opinion, that an appraiser hired by a lender owes a duty to the buyer/borrower in that transaction.
In its Unanimous Decision issued April 30, 2009, the Court focused on the reality that the buyer would likely never hire a separate appraiser. For that and several other reasons, the appraiser owes a legal duty of care to the buyer/borrower. Daphne Reaume of Berk & Moskowitz, P.C. argued the appeal for the buyer/borrower.
The case opens the door for buyers to sue appraisers even when the appraiser was hired by the lender. Visit our separate website, AppraiserNegligence.com for more information.
In its Memorandum Decision issued September 17, 2008, the Ninth Circuit Court of Appeals upheld the United States District Court, Arizona, award of employment benefits to the employee represented by Berk & Moskowitz, P.C. The case involved whether the employee qualified for benefits under the applicable plans. After applying ordinary principles of contract interpretation, the District Court and 9th Circuit Court of Appeals held that the firm’s client was entitled to benefits.
The issue on appeal involved an option to purchase under a residential lease and whether it had been timely exercised. The Arizona Court of Appeals affirmed the trial court’s decision in favor of Berk & Moskowitz’ client
Berk & Moskowitz, P.C. represented the seller of a home under an option to purchase given to the tenant/buyer. The trial court found in favor of the seller, finding that option contracts are strictly construed and that the buyer did not timely and properly exercise the option contract. The buyer appealed. The Arizona Court of Appeals affirmed the trial court decision for the sellers.
Read the Court’s Memorandum Decision.
The issue on appeal was one involving the construction of a commercial lease. In favor of Berk & Moskowitz’ client, the tenant, the Arizona Court of Appeals reversed the trial court’s decision.
The tenant hired Berk & Moskowitz after the trial court had ruled that the tenant did not have the right to cancel a commercial office lease. Berk & Moskowitz filed an appeal for the tenant. The Arizona Court of Appeals reversed the trial court, interpreted the lease as a matter of law and found that the tenant did have the right to cancel the lease. The tenant recovered its security deposit, costs, attorneys’ fees and interest.
Read the Court’s Memorandum Decision.
Hendricks v. Steed involved a dispute over a verbal contract for Hendricks’ purchase of a roof-tile manufacturing company. Hendricks sued Steed and Steed’s non-profit, charitable foundation, Heritage Institute, in an Arizona court, alleging among other things, that the contract was illegal because Heritage was violating federal tax laws. The trial court entered summary judgment against Steed finding that “if there was a contract, it was illegal because it contravened federal law.”
Berk & Moskowitz appealed the judgment on behalf of Steed. The Arizona Court of Appeals reversed the trial court’s judgment against Steed, holding that obligations to comply with federal statutes were not within the scope of the contract, thus, the alleged violations, in and of themselves, could not render the contract itself illegal. Rather, a contract is illegal only “if the acts performed under the contract themselves are illegal.”
Read the Steed Memorandum Decision
This case involved the liability of an Arizona couple’s marital community under a contract that was subject to Georgia law. In the case, a Georgia husband (Ogle) and an Arizona husband (Richmond) executed a contract in Georgia, that was to be performed in Georgia, and that specified it was to be governed by Georgia law. The parties subsequently sued each other, and their wives, in Arizona. Berk & Moskowitz represented Ogle at trial.
The trial court dismissed the claims against Ogle’s wife because Georgia is not a marital community property state. Richmond’s wife then moved to dismiss the claims against her, arguing that the contract was governed by Georgia law, therefore, Georgia law should govern the Richmonds’ marital community rights and liabilities as well. The trial court agreed and dismissed Richmond’s wife from the case, but refused to enter final judgment against her at that time. The case proceeded to trial (in the absence of Richmond who failed to appear) without further input or defense from Richmond’s wife, and a judgment for $1,037,060 was entered in favor of Ogle against Richmond.
On behalf of Ogle, Berk & Moskowitz appealed the dismissal of Richmond’s wife. The Arizona Court of Appeals reversed the trial court’s dismissal of Richmond’s wife, holding that, notwithstanding the choice of law provision in the contract, Arizona law governs the obligations of marital communities domiciled in Arizona. The Court of Appeals reasoned that applying Georgia law to immunize the Richmond’s marital community from liability “would effectively abrogate” Arizona’s community property laws, and particularly A.R.S. § 25-215(c), which provides that “community property is liable for a spouse’s debts incurred outside of this state during the marriage which would have been community debts if incurred in this state.”
The court of appeals further ordered that, on remand, Richmond’s wife was entitled to dispute whether, or to what extent, the Richmond’s marital community was liable for Richmond’s debt, but that she could no longer dispute the debt itself.
Read the Court of Appeals Memorandum Decision
