author: JOHNSEN, Judge:

text:
    Pete SPAN, Plaintiff/Appellant, v. MARICOPA COUNTY TREASURER, Defendant/Appellee.
    No. 1 CA-CV 16-0762
    Court of Appeals of Arizona, Division 1.
    FILED February 19, 2019
   JOHNSEN, 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).

¶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.

¶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, 504 P.2d 58 (1972), Span had no claim against the County, and denied Span's cross-motion for summary judgment regarding the Treasurer. Span timely 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, 256 P.3d 635 (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, 504 P.2d 58. 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.

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

¶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, 283 P.3d 45 (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, 739 P.2d 1373 (1987) (quoting Murdock-Bryant Const., Inc. v. Pearson , 146 Ariz. 48, 53, 703 P.2d 1197 (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, 703 P.2d 1197 ("[T]he mere receipt of a benefit is insufficient. Restitutionary relief is allowable only when it would be inequitable or unjust for defendant to retain the benefit without compensating plaintiff."); Pyeatte v. Pyeatte , 135 Ariz. 346, 352, 661 P.2d 196 (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 & 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, 418 P.3d 1038 (2018), see also Provident Mut. Bldg.-Loan Ass'n v. Schwertner , 15 Ariz. 517, 518-19, 140 P. 495 (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.

¶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.

¶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 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, 212 P.3d 17 (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.

PERKINS, 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 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, 394 P.3d 1083 (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, 75 P.3d 123 (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, 703 P.2d 1197 (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, 661 P.2d 196 (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 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, 982 P.2d 274 (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 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 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.

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

      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) ).

      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.


source: Caselaw Access Project

author: CATTANI, Judge:

license: Public Domain

text:
    R.O.I. PROPERTIES LLC, et al., Plaintiffs/Appellants, v. Beth FORD, et al., Defendants/Appellees.
    No. 1 CA-TX 18-0001
    Court of Appeals of Arizona, Division 1.
    FILED February 21, 2019
    Lane & Nach, PC, Phoenix, By Stuart Rodgers, Counsel for Plaintiff/Appellant R.O.I. Properties, LLC
    Engelman Berger PC, Phoenix, By Scott B. Cohen, Bradley D. Pack, Counsel for Plaintiff/Appellant Compass Bank
    Pima County Attorney's Office, Tucson, By Andrew L. Flagg, Counsel for Defendants/Appellees Beth Ford, Bill Ford and Pima County
    Judge Kent E. Cattani delivered the opinion of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
   CATTANI, Judge:

¶1 ROI Properties LLC and Compass Bank (collectively, "Taxpayers") appeal the tax court's judgment dismissing their complaint in which they asserted claims for refund of property taxes paid, declaratory judgment, and mandamus relief, all premised on an alleged entitlement to the charter school exemption for the 2015 tax year. Because the charter schools previously operating on the property ceased operations in May 2015, the property was not exempt for the 2015 tax year, and we thus affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Under Arizona Revised Statutes ("A.R.S.") § 42-11104(C)(1), property owned by a § 501(c)(3) nonprofit organization that operates as a charter school is exempt from taxation if the property is used for education and not used or held for profit. Luz Social Services, Inc., a qualifying nonprofit corporation, owned three parcels of real property (the "Property") in Pima County, where it operated nonprofit charter schools.

¶3 Luz filed for bankruptcy protection in April 2014, at which time the Property became part of the bankruptcy estate, subject to the automatic bankruptcy stay. See 11 U.S.C. §§ 362(a), 541(a)(1). Compass, one of Luz's creditors and the beneficiary of a deed of trust on the Property, sought leave to pursue a sale of the Property. In February 2015, the bankruptcy court granted limited stay relief and authorized Compass to sell the property, but further ordered that the schools could continue to operate until May 29 and that no sale could be completed before that date. As part of this process, ROI was appointed as receiver with respect to the Property.

¶4 The schools ceased all operations on May 29, 2015. Although the Pima County Assessor had classified the Property as tax exempt under the charter school exemption and had applied the exemption through the 2014 tax year (during which time the schools had remained in continuous operation), the Assessor did not apply the exemption for the 2015 tax year. Accordingly, 2015 property taxes were fixed, levied, and assessed against the Property (which remained part of the bankruptcy estate); the taxes went unpaid, and the first installment became delinquent as of November 2, 2015. See A.R.S. § 42-18052(A)-(B).

¶5 The Property was eventually sold to a third-party on April 28, 2016. The next day, in conjunction with closing the sale (and timely as to the second installment of 2015 taxes), Luz (through ROI) paid the full amount of 2015 taxes owed on the Property (including interest on the delinquent first installment), totaling over $180,000. See A.R.S. § 42-18052(B) (second installment not delinquent until May 1 after close of tax year).

¶6 Less than one year later, in April 2017, Taxpayers filed a tax claim in superior court, asserting that the Property remained entitled to the charter school exemption for the 2015 tax year, seeking a declaratory judgment to that effect, and requesting a refund of the 2015 taxes paid. See A.R.S. § 42-11005(A). Taxpayers concurrently filed a petition for a refund with the Pima County Board of Supervisors, invoking a special administrative procedure provided by the charter school exemption statute. See A.R.S. § 42-11104(G) (directing that, upon petition by a qualifying nonprofit charter school that failed to timely file an eligibility affidavit but otherwise qualified for the exemption, the county board of supervisors order the county treasurer to refund property taxes paid within the previous year and strike from the tax rolls any unpaid taxes, interest, and penalties). After the Board denied the petition, Taxpayers amended their tax court complaint to add a special action claim seeking a writ of mandamus directing the Board and the County Treasurer to refund the 2015 tax payment.

¶7 The County Defendants (Pima County Treasurer, Pima County Assessor, and Pima County) then moved to dismiss the complaint, arguing that (1) the tax court lacked jurisdiction over the illegal-tax claim because the 2015 taxes had not been paid before delinquency as required by A.R.S. § 42-11004, (2) the tax court should decline to exercise special action jurisdiction over the mandamus claim because Taxpayers had access to an adequate remedy at law (an illegal-tax claim), and (3) in the alternative, the complaint failed to state a claim for which relief could be granted because, as a matter of law, the Property was not exempt for the 2015 tax year as it was used for operation of a charter school only through May 29, 2015. Relying on the first two grounds, the tax court granted the motion and dismissed the complaint in its entirety.

¶8 Taxpayers timely appealed the resulting judgment, and we have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶9 Taxpayers argue that the tax court erred by dismissing the illegal-tax claim based on Taxpayers' failure to timely pay the 2015 taxes and by declining to exercise jurisdiction over the mandamus claim based on the availability of an alternative remedy at law. We decline to address these arguments, however, because, even assuming those grounds were improper, dismissal was nevertheless warranted. As explained below, based on the allegations of the complaint, the Property lost its exempt status for the 2015 tax year because the charter schools ceased operations as of May 29, 2015. The Property therefore was not entitled to the exemption for the 2015 tax year, and Taxpayers' illegal-tax and mandamus claims fail as a matter of law.

I. Charter School Exemption.

¶10 Article 9, Section 2(2), of the Arizona Constitution authorizes the Legislature to exempt from taxation "[p]roperty of educational ... institutions not used or held for profit," and the Legislature has crafted such an exemption for charter schools. Under A.R.S. § 42-11104(C)(1), property and buildings belonging to a § 501(c)(3) nonprofit organization that operates as a charter school "are exempt from taxation beginning on the date the nonprofit organization acquires ownership of the property and buildings if the property and buildings are used for education and are not used or held for profit."

¶11 To establish entitlement to the exemption, the qualified charter school must file an initial eligibility affidavit with the county assessor in the first two months of the tax year, and an additional eligibility affidavit each year thereafter. See A.R.S. §§ 42-11104(D), -11152(A)(1)-(2), -11153(A). If a qualified charter school provides the assessor with proof of its § 501(c)(3) tax exempt status, however, the annual affidavit requirement is waived "until all or part of the property is conveyed to a new owner or is no longer used for education," at which point the organization must notify the assessor in writing. A.R.S. § 42-11104(E).

¶12 For most taxpayers, failure to timely file an exemption eligibility affidavit (or acquiring the property after the time to file has passed) waives entitlement to the exemption. See A.R.S. § 42-11153(A) ;

Church of the Isaiah 58 Project of Ariz., Inc. v. La Paz County , 233 Ariz. 460, 463, ¶ 10, 314 P.3d 806, 809 (App. 2013). The charter school exemption statute, however, provides a special administrative remedy for charter schools faced with these circumstances. A qualifying charter school owning property used for education and "otherwise qualif[ying] for exemption" that fails to timely file an eligibility affidavit may directly petition the county board of supervisors to secure the benefit of the charter school exemption. See A.R.S. § 42-11104(G) ; see also A.R.S. § 42-11109(E) (providing a comparable special administrative remedy with regard to an exemption for religious organizations). If the charter school meets the requirements for the exemption, the statute requires the board of supervisors to direct a refund of any property taxes paid within the preceding year and to forgive any unpaid property taxes, along with associated interest and penalties. A.R.S. § 42-11104(G)(1)-(2).

II. Entitlement to Exemption.

¶13 The County Defendants urge that based on the allegations of the complaint, the Property lost its exempt status for the 2015 tax year when the charter schools ceased operations on May 29, 2015. Although the tax court did not rule on this basis, we may affirm the court's dismissal order on any basis supported by the record. See Sw. Non-Profit Hous. Corp. v. Nowak , 234 Ariz. 387, 390-91, ¶ 10, 322 P.3d 204, 207-08 (App. 2014).

¶14 Dismissal under Arizona Rule of Civil Procedure 12(b)(6) for failure to state a claim is proper if, "assum[ing] the truth of all well-pleaded factual allegations and indulg[ing] all reasonable inferences from those facts," plaintiffs nevertheless "would not be entitled to relief under any interpretation of the facts susceptible of proof." Coleman v. City of Mesa , 230 Ariz. 352, 356, ¶¶ 8-9, 284 P.3d 863, 865 (2012) (citation omitted). We consider de novo whether dismissal was warranted for failure to state a claim. Id. at 355, ¶ 7, 284 P.3d at 866. We similarly address issues of statutory interpretation de novo, considering the plain language of the statute as the primary indicator of meaning and considering the statute as a whole in the context of the broader statutory scheme. State ex rel. Ariz. Dep't of Revenue v. Capitol Castings, Inc. , 207 Ariz. 445, 447, ¶ 9, 88 P.3d 159, 161 (2004) ; see also Sempre Ltd. P'ship v. Maricopa County , 225 Ariz. 106, 108, ¶ 5, 235 P.3d 259, 261 (App. 2010).

¶15 All property in Arizona is subject to taxation unless expressly exempted. Ariz. Const. art. 9, § 2 (13); A.R.S. § 42-11002. Because exemptions represent a departure from the general rule that all taxpayers should share the common burden of taxation, statutes granting exemptions are strictly construed, albeit not so strictly as to destroy the legislative purpose underlying the exemption. Capitol Castings , 207 Ariz. at 447, ¶ 10, 88 P.3d at 161. All ambiguities are construed against exemption, and the taxpayer bears the burden to establish that the exemption applies. Conrad v. Maricopa County , 40 Ariz. 390, 393, 12 P.2d 613 (1932) ; Hub Props. Tr. v. Maricopa County , 238 Ariz. 171, 172, ¶¶ 6-7, 358 P.3d 592, 593 (App. 2015).

¶16 The charter school provision exempts property and buildings from taxation if owned by a nonprofit organization that operates as a charter school, but ownership by a nonprofit charter school is not enough: the property itself must be "used for education." A.R.S. § 42-11104(C)(1). Here, as alleged in Taxpayers' complaint, the Property was used for education only through May 29, 2015; the schools ceased operations entirely as of May 30, 2015. Because the Property was no longer used for education after that date-before the assessment period for the 2015 tax year was complete-the Property lost a necessary condition for entitlement to the charter school exemption, lost its exempt status, and thus as a matter of law was subject to taxation for the 2015 tax year.

¶17 Taxpayers urge, however, that because the Property was exempt for the first five months of the year, it was entitled to the exemption for the entire tax year. We have previously addressed and rejected this same argument in the context of another tax exemption. In Hub Properties Trust v. Maricopa County , a private party purchased property from a municipality in March 2011. 238 Ariz. at 172, ¶ 2, 358 P.3d at 593. Because government-owned property is exempt from property taxes, Ariz. Const. art 9, § 2 (1); A.R.S. § 42-11102(A), the private party argued that it was entitled to the exemption for the 2011 tax year based on the premise that "once property is exempt, it is exempt for the entire tax year even if there is a change of use or ownership." 238 Ariz. at 172-73, ¶ 8, 358 P.3d at 593-94. We affirmed the tax court's contrary ruling that the property's period of exemption began the day it was acquired by the government and ended the day it was transferred from the government to private ownership. Id. at 173, ¶ 11, 358 P.3d at 594. Even though the property would have been entitled to the exemption during the two months of the tax year before it was sold, it was no longer exempt for that tax year once purchased by the private party. Id.

¶18 Taxpayers acknowledge the Hub Properties decision, but argue that it is not controlling because the government-owned property exemption at issue in that case operated automatically and depended entirely on government ownership, whereas the charter school exemption involves an administrative process at the beginning of the tax year to determine eligibility. According to Taxpayers, a private purchaser of a government-owned property would thus have no legitimate expectation to receive the benefit of the exemption, whereas a charter school that completed the administrative eligibility process would have both the expectation and legal entitlement to receive the exemption for that entire year regardless of a change in use or ownership. Taxpayers assert that extinguishing the exemption after the close of the administrative eligibility process (even if the property is no longer used for education) is in effect an improper retroactive termination of the exemption.

¶19 Taxpayers' argument conflates the period for filing an eligibility affidavit (January to March 1 of the tax year)-a procedural requirement for establishing entitlement to the charter school exemption-with the substantive requirements of the exemption itself. Compare A.R.S. § 42-11104(C)(1), with A.R.S. §§ 42-11104(D)-(E), -11152(A), -11153(A). And § 42-11104(C)(1) places no time limit on the requirement that the charter school exemption be applied only "if the property and buildings are used for education." Moreover, even nonprofit charter schools that are relieved of the obligation to file subsequent annual eligibility affidavits are nevertheless required to notify the assessor in writing when "all or part of the property is conveyed to a new owner or is no longer used for education," A.R.S. § 42-11104(E), which further suggests that the exemption may be extinguished by conveyance or change of use. If the exemption is extinguished mid-year-whether by sale to another entity or by the charter school retaining ownership but ceasing use for education-the property is no longer entitled to the exemption for that tax year. In short, the logic underlying the Hub Properties decision applies here, and Taxpayers' argument relies on the same faulty premise that we rejected in that case.

¶20 Taxpayers further argue that § 42-11104 does not specify that the property must be used as a charter school throughout the entire tax year in order to qualify for the exemption, positing that such a requirement would be inconsistent with common school breaks such as summer vacation. Although the statutory requirement that the property be "used for education" presumably does not require educational use every day of the year, it expressly conditions the exemption on continued educational use. And here, the charter schools ceased operations entirely in the middle of the tax year, before the property taxes were fixed, levied, and assessed and before those taxes came due. See A.R.S. §§ 42-17151(A), -18052(A). The Legislature could have authorized the exemption for property that loses its eligibility mid-year, just as it expressly did for property that gains eligibility after being acquired by a nonprofit charter school mid-year. See A.R.S. § 42-11104(C)(1), (G) ; see also S. Fact Sheet (Apr. 7, 2008), H.B. 2330, 48th Leg., 2d Reg. Sess. (Ariz. 2008); H.R. Bill Summary (Feb. 20, 2008), H.B. 2330, 48th Leg., 2d Reg. Sess. (Ariz. 2008). But nothing in § 42-11104 suggests that the benefit of the exemption survives even after the property no longer meets the substantive eligibility requirements.

¶21 Finally, Taxpayers argue in the alternative that the amount of property taxes should be prorated to reflect that the Property was exempt for five months of the tax year. Although the Legislature could have authorized proration for charter school property that loses its exempt status mid-year-as it has done expressly in the context of destroyed property, see A.R.S. § 42-15157 -the Legislature did not do so. Section 42-11104 itself does not authorize proration, and Taxpayers offer no other authority to support their argument. Accordingly, we conclude that the Property was not entitled to an exemption for the 2015 tax year because it lost its tax-exempt status when the charter schools ceased operation and the Property was no longer used for education. Taxpayers' mandamus claim and illegal-tax claims for refund and declaratory relief thus fail as a matter of law, and dismissal was proper.

III. Attorney's Fees on Appeal.

¶22 Taxpayers seek an award of attorney's fees on appeal under A.R.S. § 12-2030(A), which directs an award of fees to a private party that prevails on the merits in a mandamus action, and under A.R.S. § 12-348(B)(1), which allows an award of fees to a private party that prevails on the merits of a tax claim. Because Taxpayers have not prevailed, we deny their request for fees.

CONCLUSION

¶23 For the foregoing reasons, we affirm.

      Taxpayers' complaint alleged more broadly that the bankruptcy court's order "terminat[ed] the automatic stay of 11 U.S.C. § 362(a) with respect to the Property," but the order itself reflects more limited stay relief tailored only to "Compass' enforcement of its rights under its deed of trust on the Property."

      The bankruptcy court had previously issued an order confirming that the bankruptcy stay had terminated with respect to the Property and that the bankruptcy estate abandoned any interest in the claim for refund of 2015 property taxes on the Property. Similarly, the receivership was reopened for ROI to assert the refund claim on Luz's behalf.


text:
    STATE of Arizona, Appellee, v. Robert Angel GOMEZ, Appellant.
    No. 1 CA-CR 17-0774
    Court of Appeals of Arizona, Division 1.
    FILED February 26, 2019 AS AMENDED March 26, 2019
    Arizona Attorney General's Office, Phoenix, By Jennifer L. Holder, Counsel for Appellee
    Maricopa County Public Defender's Office, Phoenix, By Carlos Daniel Carrion, Counsel for Appellant
    Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.
   JOHNSEN, Judge:

¶1 Robert Angel Gomez was convicted of two counts of aggravated driving while under the influence with a passenger under 15 years of age. He now argues Arizona Revised Statutes ("A.R.S.") section 28-1383(A)(3) (2019) required the State to prove he knew his passenger was younger than 15 and that the superior court erred by failing to so instruct the jury. We hold the defendant's knowledge of the passenger's age is not an element of the offense and affirm the convictions.

FACTS AND PROCEDURAL BACKGROUND

¶2 Gomez crashed his car while driving a 14-year-old girl home from a party one night. He did not know the girl well and did not know how old she was. At the scene, police found a bottle of pills in Gomez's car and he admitted smoking marijuana earlier in the day.

¶3 As relevant here, Gomez was charged with two counts of aggravated driving while under the influence ("DUI") with a passenger under 15 years of age, each a Class 6 felony. A.R.S. § 28-1383(A)(3). Before trial, Gomez asked the superior court to instruct the jury that the State must prove he knew his passenger was younger than 15. The court declined to give the instruction, and the jury convicted him of both charges, along with four other felony offenses. The superior court sentenced him on the DUI offenses to two concurrent one-year terms of imprisonment.

¶4 Gomez timely appealed, challenging only his convictions under § 28-1383(A)(3). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2019), 13-4031 (2019) and -4033(A)(1) (2019).

DISCUSSION

¶5 Gomez argues § 28-1383 required the State to prove he knew his passenger was younger than 15 at the time he committed the DUI offenses. This is a legal issue that we review de novo . See State v. Falcone , 228 Ariz. 168, 170, ¶ 9, 264 P.3d 878, 880 (App. 2011). "Our task in interpreting the meaning of a statute is to fulfill the intent of the legislature that wrote it." State v. Williams , 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). We first examine the statute's words. Id. If the meaning of the text is unclear, we then consider other factors such as the statute's context, history, subject matter, effects and consequences, spirit and purpose. Mail Boxes v. Indus. Comm'n , 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995). Toward that end, we also examine statutes that are in pari materia , meaning those of the same subject or general purpose. See Stambaugh v. Killian , 242 Ariz. 508, 509, ¶ 7, 398 P.3d 574, 575 (2017).

¶6 In relevant part, § 28-1383 states:

A. A person is guilty of aggravated driving ... while under the influence of intoxicating liquor or drugs if the person does any of the following:
* * *
3. While a person under fifteen years of age is in the vehicle, commits [driving under the influence under A.R.S. §§ 28-1381 (2019) or -1382 (2019).]

¶7 The statute specifies no mens rea for the crime. When a statute defines an offense but "does not expressly prescribe a culpable mental state that is sufficient for commission of the offense, no culpable mental state is required ..., and the offense is one of strict liability unless the proscribed conduct necessarily involves a culpable mental state." A.R.S. § 13-202(B) (2019); see also State v. Parker , 136 Ariz. 474, 475, 666 P.2d 1083, 1084 (App. 1983) ( § 13-202 applies to Title 28 offenses). Under § 13-202(B), we will construe a statute to create a strict-liability offense "only when there appears to be a clear legislative intent not to require any particular mental state for the commission of the crime." State v. Slayton , 214 Ariz. 511, 514, ¶ 12, 154 P.3d 1057, 1060 (App. 2007).

¶8 Applying § 13-202(B), because § 28-1383(A)(3) does not specify a culpable mental state, the statute creates a strict-liability offense "unless the proscribed conduct necessarily involves a culpable mental state." Gomez argues we must imply a mens rea in § 28-1383(A)(3) based on the legislature's intent, as evidenced by the statutory scheme and history.

¶9 We begin by observing that the statute's two predicate offenses do not require proof of a culpable mental state. See A.R.S. §§ 28-1381 (driving under the influence); -1382 (driving under extreme influence); State v. Zaragoza , 221 Ariz. 49, 54, ¶ 20, 209 P.3d 629, 634(2009). Section 28-1383(A) provides that one who commits either of those two DUI offenses under one of five specific circumstances will be guilty of "aggravated driving or actual physical control while under the influence." See A.R.S. § 28-1383(A)(1) ("while the person's driver license ... is suspended, canceled, revoked or refused" as a result of a prior DUI offense); -(A)(2) (with multiple prior DUI violations within 84 months); -(A)(3) (with a passenger under 15 years of age); -(A)(4) (while required to use an interlock device); -(A)(5) (while driving the wrong way on a highway).

¶10 Section 28-1383 does not specify a culpable mental state for any of the five means of committing the crime of aggravated driving under the influence. In State v. Williams , 144 Ariz. 487, 698 P.2d 732 (1985), however, our supreme court held that a conviction under § 28-1383(A)(1) requires proof the defendant knew or should have known his or her license was suspended, canceled, revoked or refused for a prior DUI offense. 144 Ariz. at 489, 698 P.2d at 734. At issue in that case was a predecessor of § 28-1383(A)(1), which, like the current version of the statute, omitted any mens rea for the offense. 144 Ariz. at 489, 698 P.2d at 734. Nevertheless, the court held the offense required proof of a culpable mental state and reversed the defendant's conviction. Id. The court reasoned that the Arizona Department of Transportation will not suspend, cancel or revoke a driver's license without giving notice to the driver. Id. Because it follows that a driver necessarily will know when his or her license is suspended, canceled or revoked, the court concluded that aggravated DUI under what is now § 28-1383(A)(1)"necessarily involves a culpable mental state" within the meaning of § 13-202(B). 144 Ariz. at 489, 698 P.2d at 734. Acknowledging the potential for administrative error by the Department of Transportation, the court also observed that "the danger of unknown or mistaken suspensions is too great to allow a felony conviction to be based upon suspensions without knowledge." Id .

¶11 Applying that reasoning here, aggravated DUI under § 28-1383(A)(3) does not "necessarily involve" a culpable mental state about the age of the passenger-indeed, before trial Gomez argued that he did not know how old the girl was, and there was no evidence to suggest he necessarily knew she was only 14. Gomez argues children under 15 are most likely to be driven around by their parents, who of course will know how old they are. That may be usually so, but as this case shows, not everyone who transports a child "necessarily" knows whether the child is younger than 15. See A.R.S. § 13-202(B).

¶12 Gomez argues we should imply a mens rea requirement in § 28-1383(A)(3) because the provision was enacted after our supreme court issued its decision in Williams in 1985. The legislature enacted the predecessor to § 28-1383(A)(3) in 1996, and the following year, moved it to its current location in the code. See 1996 Ariz. Sess. Laws, ch. 76, § 29 (2d Reg. Sess.); 1997 Ariz. Sess. Laws, ch. 1, §§ 108, 112 (1st Reg. Sess.). We cannot infer that when the legislature enacted the subsection at issue without specifying a mens rea requirement, it knew or expected from Williams that courts would require the prosecution to prove a culpable mental state. The opposite conclusion is just as likely: The legislature might have concluded that because the youthful-passenger provision came with none of the notice guarantees the court identified in Williams , consistent with § 13-202(B), courts would refrain from implying a mental-state requirement when the statute omitted one. This is particularly so, given that lawmakers knew of the mandate of § 13-202, which was enacted in 1977, when they first adopted § 28-1383(A)(3). See State v. Garza Rodriguez , 164 Ariz. 107, 111, 791 P.2d 633, 637 (1990) (courts presume legislature is aware of existing laws when it enacts new ones); State v. Gamez , 227 Ariz. 445, 449, ¶ 27, 258 P.3d 263, 267 (App. 2011) (same).

¶13 Gomez cites Slayton , where we reviewed a conviction for unauthorized hunting, for the proposition that strict liability offenses are "disfavored." 214 Ariz. at 516, ¶ 20, 154 P.3d at 1062. Our conclusion that § 28-1383(A)(3) does not require proof the defendant knew the child's age, however, is consistent with cases interpreting other statutes that create crimes with child victims. See, e.g. , Williams , 175 Ariz. at 101, 103, 854 P.2d at 134, 136 ( A.R.S. § 13-705 (2019), which establishes penalty for a "dangerous crime against children" when victim is of a certain age, does not require proof defendant knew victim's age because defendant "assumes the risk" the child falls within the statute); Gamez , 227 Ariz. at 450, ¶¶ 29-30, 258 P.3d at 268 (sexual conduct with minor under A.R.S. § 13-1405(A) (2019) does not require proof defendant knew age of victim: "When the legislature intends that the mens rea apply to the status of the victim, it says so explicitly."); State v. Denning , 155 Ariz. 459, 461, 747 P.2d 620, 622 (App. 1987) (same outcome under A.R.S. § 13-1406(B) (2019), specifying penalty for sexual assault against a victim under 15 years of age); see also Spitz v. Mun. Court of Phoenix , 127 Ariz. 405, 407, 621 P.2d 911, 913 (1980) (guilt without mens rea "is allowed in certain cases, frequently involving the protection of children"); State v. Cutshaw , 7 Ariz. App. 210, 221, 437 P.2d 962 (1968) ("When a person does an act which reasonable persons should recognize will harm the health or morals of a youth, there is sufficient criminal intent to warrant conviction though the actor for good reason does not realize that the child is below the particular age selected by law as the threshold for criminal sanction."), superseded in part by Ariz. R. Crim. P. 15.1.

¶14 By contrast to § 28-1383(A)(3) and the other statutes at issue in ¶ 13, the legislature has been clear elsewhere when it means to require the State to prove the defendant knew the victim was a minor. See, e.g. , A.R.S. § 13-3212(B)(2) (2019) ("A person who is at least eighteen years of age commits child sex trafficking by knowingly: ... Engaging in prostitution with a minor who the person knows or should have known is fifteen, sixteen or seventeen years of age."); see also A.R.S. § 13-1204(A)(8)(a) (2019) (aggravated assault of victim the defendant "know[s] or ha[s] reason to know" is a peace officer).

¶15 In sum, the plain language of § 28-1383(A)(3) does not state a mens rea element, and we "assum[e] that the legislature has said what it means." State v. Ross , 214 Ariz. 280, 283, ¶ 22, 151 P.3d 1261, 1264 (App. 2007) (quotation omitted). Further, applying § 13-202(B), the crime does not "necessarily" involve a culpable mental state. Accordingly, we conclude the State did not need to prove Gomez knew his victim was under 15, and the superior court did not err in denying Gomez's requested jury instruction.

CONCLUSION

¶16 For the above reasons, we affirm Gomez's convictions and sentences.

      Absent material revision after the date of an alleged offense, we cite the current version of a statute or rule.