author: WINTHROP, Judge:

text:
    Cindy REYES, et al., Plaintiffs/Appellees, v. TOWN OF GILBERT, Defendant/Appellant.
    No. 1 CA-CV 18-0359
    Court of Appeals of Arizona, Division 1.
    FILED July 25, 2019
    Breyer Law Offices, P.C., Phoenix, By Mark P. Breyer, Edward M. Ladley, Brian C. Fawber, Counsel for Plaintiffs/Appellees
    Grasso Law Firm, P.C., Chandler, By Robert Grasso, Jr., Kim S. Alvarado, Stephanie L. Samuelson, Counsel for Defendant/Appellant
    Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Judge Kent E. Cattani and Judge Diane M. Johnsen joined.
   WINTHROP, Judge:

¶1 In this personal injury action, a jury trial resulted in a defense verdict in favor of the Town of Gilbert ("the Town"). The plaintiff, Joseph Reyes ("Reyes"), then moved for a new trial, which the superior court granted, finding the Town had violated Arizona Rule of Civil Procedure ("Rule") 26.1. The Town appeals the court's new-trial order. For the following reasons, we reverse the order for a new trial and direct the superior court on remand to reinstate the jury verdict in favor of the Town.

FACTS AND PROCEDURAL HISTORY

I. The Underlying Incident

¶2 Reyes suffered injuries in a single-car accident in which Albert Lopez was the driver. On the night of May 18, 2013, Reyes, then sixteen years old, went with some friends to an unsupervised party in Chandler, where they drank a substantial amount of alcohol. Lopez arrived at the party after midnight. He had been drinking alcohol throughout the day, and he had also smoked marijuana and used cocaine.

¶3 At approximately 1:00 a.m., Lopez announced the party was moving to his house. Lopez and three other teenagers, including Reyes, got into Lopez' truck. The truck sped eastbound on Ocotillo Road, ran a stop sign at the Greenfield Road intersection, and continued recklessly speeding through a residential subdivision. Two passengers, including Reyes, asked Lopez to slow down, but he did not do so, even after the pavement ended and Ocotillo Road transitioned to a narrow dirt path/road. Instead, Lopez continued on; the passengers later estimated the truck was going between sixty and ninety miles per hour.

¶4 A canal intersected the road 765 feet east of the end of the pavement. As Lopez continued toward the canal, he eventually braked, but was unable to stop. The truck vaulted the canal and slammed into the east embankment.

¶5 Lopez, who had a blood alcohol level of .198 and tested positive for cocaine, later testified he could not remember the crash or driving after leaving the party. Reyes, who was not wearing a seatbelt, was seriously injured in the crash.

II. The Legal Proceedings

¶6 In December 2013, Reyes' mother, Cindy, timely filed a complaint, individually and on behalf of her minor son, naming numerous defendants, including the Town. The complaint alleged the Town was negligent because it "failed to properly light the area, provide signage on the road or have adequate warnings to alert travelers that Ocotillo Road was ending and that an open canal existed across the roadway" at the end of the dirt road.

¶7 By the time of trial, Reyes had turned eighteen and the only claim remaining was his negligence claim against the Town. During the course of the litigation, Reyes filed twenty-four supplemental Rule 26.1 disclosure statements, and in each he continued to allege as the basis for his claim that the Town had "failed to properly light the area, provide signage on the road or have adequate warnings to alert travelers that Ocotillo Road was ending and that an open canal existed across the roadway."

¶8 Before trial, the superior court granted the Town's unopposed motion to exclude the expert testimony of Todd Springer, Reyes' "lighting expert." Reyes thereafter proceeded on a single liability theory-that the Town was negligent in maintaining Ocotillo Road east of Greenfield Road. Relying on a traffic engineering expert, Dr. Robert Bleyl, Reyes argued that the Town failed to provide proper warning signs and that this failure was a cause of his injuries. Specifically, Dr. Bleyl opined that the Manual on Uniform Traffic Control Devices ("MUTCD") required the Town to place diamond-shaped reflective objects, known as Type 4 markers, in certain areas to warn drivers they were approaching a hazard.

¶9 Shortly before trial, the parties filed their Joint Pretrial Statement, and Reyes filed an Amended Joint Pretrial Statement. In each, Reyes alleged as his sole theory of liability that the Town "fail[ed] to follow the standard of care and state law requiring specific signage or barriers to warn of a canal that sits where Ocotillo [Road] ends."

¶10 The superior court addressed numerous pretrial motions in limine , including a motion by the Town to preclude Reyes "from offering testimony or written documentation and questioning witnesses concerning other possible ways that the Town was 'negligent' because such other 'negligence theories' go beyond the opinions of [Dr. Bleyl]." The Town noted Dr. Bleyl's opinions had "focused on whether the Town adequately warned [ ] Lopez that the roadway ended and a canal was ahead," but asserted Reyes had nonetheless "implied that the Town was negligent in other ways, including: (1) the lack of lighting along the dirt area or at the canal; (2) the lack of fencing/barriers before the canal; (3) other types of signage not [testified to by Dr. Bleyl in his March 31, 2016 deposition]; and (4) not constructing an overpass over/across the canal." The Town argued Reyes "should not be permitted to argue negligence theories ... on issues that even [Reyes'] own expert does not identify as negligence." In response, Reyes argued he should be "allowed to discuss the MUTCD and demonstrate that Type 4 signage was required (and not used) and Type 3 barriers were to be considered (but were not used) by the [Town]." Reyes conceded he had "no claim" "about the lighting on Ocotillo [R]oad approaching the canal where this incident occurred," but also argued he should be allowed to speculate about the benefits of an overpass over the canal. The superior court granted the Town's motion in limine "excluding evidence of other negligence theories" and ruled that Reyes' "negligence theories shall be limited to those contained in [his] expert disclosures or depositions."

¶11 The case went to trial in December 2016. Consistent with his written report and disclosed opinions, Dr. Bleyl testified that the MUTCD required the Town to place Type 4 markers on Ocotillo Road east of Greenfield Road to warn drivers they were approaching a hazard. The Town called Dr. Andrzej Kwasniak, a traffic and transportation operations engineer, to rebut Dr. Bleyl's opinions. As disclosed during discovery, Dr. Kwasniak had conducted on-site traffic counts on two days in September 2015 and used the data he gathered about the volume and speeds of the traffic to conclude that the existing signage, or lack of it, on Ocotillo Road did not render the road unreasonably unsafe. Consistent with its pretrial disclosures, the Town's primary defense was that the May 2013 accident was caused by Lopez' reckless intoxicated behavior, and that Reyes' own reckless behavior contributed to his injuries.

¶12 The jury returned a defense verdict. In January 2017, the superior court entered judgment in favor of the Town.

¶13 Reyes then moved for a new trial pursuant to Rule 59(a)(1)(B), Ariz. R. Civ. P., alleging the Town committed misconduct by failing to disclose a 2003 traffic impact study involving some of the area at issue ("the 2003 TIS"). That study had been completed by Kenneth Howell, an engineer with TASK Engineering, under contract with a potential developer who in 2003 was considering building a subdivision (the "Freeman Farms development"). Reyes asserted that, approximately ten months before trial, he had sent a public records request to the Town asking for "[a]ll field reviews and traffic studies for Ocotillo Road east of Greenfield until the Canal that is Town of Gilbert right of way," and that, in responding, the Town had failed to provide the 2003 TIS, but instead stated it had already provided a general study of the area, and further stated, "The Town's responses to these requests are complete." Reyes argued that the 2003 TIS, which was conducted before residential subdivision development in the area, had estimated significantly greater traffic than that observed by Dr. Kwasniak and "undermines the entire basis of the testimony of [Dr. Kwasniak]."

¶14 The Town responded by arguing in part that the 2003 TIS had nothing to do with signage or Dr. Bleyl's opinions, was "wholly irrelevant to the disputed negligence and causation issues before the jury," and "had no impeachment value." The Town noted that, at trial, Reyes had argued only that the Town should have conducted a specific study to determine whether to install Type 4 object markers and should have documented its reasons for ruling out such signs in order to justify its decision to "deviate" from the MUTCD. The Town argued Reyes was confusing a pre-subdivision construction traffic impact study such as the 2003 TIS, which has nothing to do with signage and would have had no impact on Reyes' disclosed liability theory, with a post-construction "traffic study" that would involve design drawings and plans for signage and required an engineer's judgment.

¶15 The superior court heard oral argument in June 2017 on Reyes' motion for new trial, concluded that the 2003 TIS should have been disclosed, and then entered an order allowing Reyes to (1) depose the individual who prepared the 2003 TIS (Howell), and (2) submit a declaration after the deposition from Dr. Bleyl analyzing any possible impact the 2003 TIS might have had on Reyes' theory of liability. Reyes deposed Howell, then submitted affidavits from Dr. Bleyl and Anthony Voyles, a traffic engineer with experience in conducting traffic impact studies.

¶16 After hearing renewed oral argument, the court found the Town had violated Rule 26.1 by failing to disclose the 2003 TIS.

¶17 We have jurisdiction over the Town's timely appeal. See Ariz. Rev. Stat. ("A.R.S.") § 12-2101(A)(5)(a).

ANALYSIS

¶18 The Town argues the superior court abused its discretion in granting Reyes' motion for new trial.

I. Applicable Law and Standard of Review

¶19 A municipality "is not bound to provide perfect intersections or streets, but only those which are 'reasonably safe.' " Coburn v. City of Tucson , 143 Ariz. 50, 54, 691 P.2d 1078, 1082 (1984). At the same time, "motorists have a duty to drive with reasonable care," and "[w]hat is 'reasonably safe' takes into consideration certain minimal expectations that travelers follow the usual rules of the road." Id. at 52, 54, 691 P.2d at 1080, 1082 (citations omitted).

¶20 The superior court has discretion to grant a motion for new trial based on a party's misconduct. Leavy v. Parsell , 188 Ariz. 69, 72, 932 P.2d 1340, 1343 (1997). In exercising that discretion, the court must decide whether the misconduct materially affected the aggrieved party's rights. Id. (citing Grant v. Ariz. Pub. Serv. Co. , 133 Ariz. 434, 454, 652 P.2d 507, 527 (1982) ). "Reversal [of an order denying a new trial on grounds of misconduct] will be required only when it appears probable that the misconduct 'actually influenced the verdict.' " Id. (citing Grant , 133 Ariz. at 454, 652 P.2d at 527 (quoting Sanchez v. Stremel , 95 Ariz. 392, 395, 391 P.2d 557 (1964) )). This is a factual determination, and no presumption of prejudice or lack of prejudice should be applied. Id.

¶21 We generally review the grant of a new trial more liberally than an order denying one, State Farm Fire & Cas. Co. v. Brown , 183 Ariz. 518, 521, 905 P.2d 527, 530 (App. 1995), and absent an abuse of discretion, will not disturb the grant of a motion for new trial, Henry ex rel. Estate of Wilson v. HealthPartners of S. Ariz. , 203 Ariz. 393, 398, ¶ 16, 55 P.3d 87, 92 (App. 2002). However, the trial court's discretion must be exercised according to reason and law. Koepnick v. Sears Roebuck & Co. , 158 Ariz. 322, 325, 762 P.2d 609, 612 (App. 1988). Because a trial court abuses its discretion if it commits an error of law, we review de novo the superior court's rulings on questions of law presented in the motion for new trial. Sandretto v. Payson Healthcare Mgmt., Inc. , 234 Ariz. 351, 355, ¶ 8, 322 P.3d 168, 172 (App. 2014). A trial court also abuses its discretion "when the record lacks substantial evidence to support the court's finding." Varco, Inc. v. UNS Elec., Inc. , 242 Ariz. 166, 170, ¶ 12, 393 P.3d 946, 950 (App. 2017) (citing Romer-Pollis v. Ada , 223 Ariz. 300, 302-03, ¶ 12, 222 P.3d 916, 918-19 (App. 2009) ); see also State v. Fischer , 242 Ariz. 44, 51, ¶ 26, 392 P.3d 488, 495 (2017) ("The appellate court's role is to oversee the granting of new trials and to ensure that the exercise of a trial court's broad discretion has a legal, rather than an arbitrary, basis." (citing Estabrook v. J.C. Penney Co. , 105 Ariz. 302, 305, 464 P.2d 325, 328 (1970) )).

II. The Merits

¶22 In granting Reyes' motion for new trial, the superior court first found the Town violated Rule 26.1, and then, relying on Leavy , concluded the Town's misconduct "materially affected" Reyes' rights. See 188 Ariz. at 72, 932 P.2d at 1343. Stating that it "decline[d] to act as an expert on traffic studies by trying to parse through the significance of the traffic numbers in the [2003 TIS]," the court instead relied on the post-trial affidavits by Reyes' experts, who opined that the 2003 TIS (1) might have given rise to new issues regarding road design, and (2) tended to undermine any argument the Town might make that sound engineering judgment was applied to produce the subject roadway configuration. The court explained that it was

persuaded by Dr. Bleyl and Mr. Voyles that the existence of the [2003 TIS] will likely open the door to a new liability theory-negligent design of the roadway that will be based on a "data driven analysis." This is significant because negligent design claims turn on engineering judgment. Thus, the theory is much broader than [Reyes'] Sign Theory.

A. The Public Records Request

¶23 On appeal, the parties continue to dispute whether the Town's alleged failure to fully comply with Reyes' public records request constituted a valid ground for a new trial. To some extent, these arguments conflate the Town's duties pursuant to the public records laws with the Town's duty of disclosure under Rule 26.1. Thus, as a preliminary matter, we address this issue and hold that, to the extent the superior court may have concluded the Town's allegedly incomplete response to a public records request made outside the Arizona Rules of Civil Procedure constituted a Rule 26.1 disclosure violation, such conclusion was error. This is especially true given that the 2003 TIS was not relevant to Reyes' pretrial liability theories or the Town's defenses disclosed and advanced during the litigation.

¶24 Arizona's "disclosure rules are designed to provide parties 'a reasonable opportunity to prepare for trial or settlement - nothing more, nothing less.' " Zimmerman v. Shakman , 204 Ariz. 231, 235, ¶ 13, 62 P.3d 976, 980 (App. 2003) (quoting Bryan v. Riddel , 178 Ariz. 472, 477, 875 P.2d 131, 136 (1994) ). They are not meant to be used as a "weapon" for attacking another party's case, see id. , and courts must use a common-sense approach in applying the rules, Rivers v. Solley , 217 Ariz. 528, 531, ¶ 13, 177 P.3d 270, 273 (App. 2008), while keeping in mind the specific facts of the case, Zimmerman , 204 Ariz. at 235, ¶ 14, 62 P.3d at 980.

¶25 Rule 26.1, which governs the parties' obligations to make prompt disclosure of information, was adopted "to make the judicial system in Arizona more efficient." Montgomery Ward & Co. v. Superior Court , 176 Ariz. 619, 621, 863 P.2d 911, 913 (App. 1993) (quoting Ariz. R. Civ. P. 26.1, ct. cmt.). "[The Rule 26.1 ] disclosure statement is the primary vehicle by which the parties are informed of their opponent's case. Thus, it should fairly expose the facts and issues to be litigated, as well as the witnesses and exhibits to be relied upon." Bryan , 178 Ariz. at 477, 875 P.2d at 136.

¶26 Under Rule 34, a litigant may serve a request for the inspection and, if desired, copying of "discoverable documents" related to the litigation. Ariz. R. Civ. P. 34 (supp. note). The request "must describe with reasonable particularity each item or distinct category of items to be inspected," and the responding party must either allow inspection or state the grounds and reasons for objecting to the request. Ariz. R. Civ. P. 34(b)(2)(A), (3)(B). The Rule 34 process also affords efficient judicial supervision of compliance issues. See also Ariz. R. Civ. P. 37(a) (motion to compel discovery). Likewise, Rule 33, Ariz. R. Civ. P., governs the discovery of information through interrogatories. Thus, the Arizona Rules of Civil Procedure provide a process for parties to produce relevant information and a mechanism for court-supervised enforcement.

¶27 A public records request, on the other hand, is a method by which any member of the public may acquire documents outside of pending litigation and the rules of discovery; it is not a request for documents pursuant to Rule 34 or the Arizona Rules of Civil Procedure. See generally Bolm v. Custodian of Records of the Tucson Police Dep't , 193 Ariz. 35, 39 n.4, ¶ 11, 969 P.2d 200, 204 n.4 (App. 1998). Accordingly, although the Town had a clear obligation to comply with the Public Records Law, see id. at 39-40, ¶ 11, 969 P.2d at 204-05 (citing 1989 Ariz. Op. Atty. Gen. 41), and the Town may have failed to fully comply with that law when it did not produce the 2003 TIS, that obligation was separate and apart from the Town's disclosure obligations in the litigation as imposed by the Arizona Rules of Civil Procedure, and the procedure available to remedy non-compliance is markedly different. Separate treatment of these obligations, along with separate enforcement mechanisms, makes sense, given that Rule 34 provides procedural safeguards, such as provisions for withholding and objection, that are not applicable to a public records request. Compare Ariz. R. Civ. P. 34(b)(3)(B)-(C), with A.R.S. § 39-121 ("Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours."); cf. Bolm , 193 Ariz. at 39 n.4, ¶ 11, 969 P.2d at 204 n.4 ("Unlike Arizona's Public Records Law, some states' statutes expressly permit a public entity to withhold records specifically prepared for use in pending litigation to which the public agency is a party.").

¶28 Reyes' public records request for traffic studies was a request made outside the Arizona Rules of Civil Procedure; accordingly, any failure by the Town to comply with that request did not implicate those rules, or any remedial measures available under those rules.

B. Rule 26.1

¶29 We now address whether, separate and distinct from the public records request, Rule 26.1 required the Town to produce the 2003 TIS.

¶30 Under Rule 8, Ariz. R. Civ. P., "Arizona follows a notice pleading standard, the purpose of which is to 'give the opponent fair notice of the nature and basis of the claim and indicate generally the type of litigation involved.' " Cullen v. Auto-Owners Ins. Co. , 218 Ariz. 417, 419, ¶ 6, 189 P.3d 344, 346 (2008) (quoting Mackey v. Spangler , 81 Ariz. 113, 115, 301 P.2d 1026 (1956) ). This is a broad standard. As the litigation progresses, however, a party must timely disclose the factual basis of a party's claims or defenses and "the legal theory on which each" claim or defense is based. Ariz. R. Civ. P. 26.1(a)(1)-(2).

¶31 The two subsections of Rule 26.1 that specify a party's obligation to disclose documents define the scope of that obligation in terms of the claims and defenses asserted in the litigation. Rule 26.1(a)(8) requires the disclosure of tangible evidence "that the disclosing party plans to use at trial." Here, the Town had no plans to use the 2003 TIS at trial. The Town's defense never relied on any pre-construction traffic impact studies, the 2003 TIS did not contain any meaningful analysis of the portion of Ocotillo Road east of the Greenfield Road intersection, and the Town's traffic engineering expert, Dr. Kwasniak, focused his analysis and opinions on conditions existing at the time of the accident, not conditions that existed ten years earlier.

¶32 Rule 26.1(a)(9) is broader and requires disclosure of tangible evidence "that may be relevant to the subject matter of the action." What is "relevant" is case-dependent, and in this context (a claim against a government entity) is shaped by (1) the facts and legal theories fairly outlined by the claimant in the statutorily required notice of claim, see A.R.S. § 12-821.01, (2) the complaint, (3) the answer to the complaint, (4) the plaintiff's recitation of the facts and theories and identification of topics of anticipated witness testimony fairly identified in the plaintiff's disclosure statements and discovery responses, (5) the defendant's recitation of the facts and defenses and identification of topics of anticipated witness testimony as fairly identified in the defendant's disclosure statements and discovery responses, (6) expert witness disclosure statements by both parties, (7) deposition testimony of disclosed trial experts, and (8) the pretrial statement(s). Beyond this, Rule 26.1 does not require a party to speculate about or anticipate theories of liability or defenses not affirmatively disclosed or reasonably inferable from such disclosures.

¶33 When the initial disclosure statements were exchanged, Reyes had not provided notice, pled, or otherwise disclosed any factual basis or legal theory against the Town related to the initial design, planning, or development of Ocotillo Road. Based on Reyes' disclosed theories, which focused only on lighting and signage along the road, and the Town's defenses, the Town had no reason under Rule 26.1 to search for and/or produce a more-than-decade-old traffic impact study made in connection with a potential developer's proposed subdivision plan of the area, or any reason to believe that such a traffic impact study might have anything to do with a single-vehicle, excessive speed, drunk-driving accident that occurred more than ten years later. Further, as previously noted, the 2003 TIS provided little new or meaningful information concerning the portion of Ocotillo Road at issue in this case. At best, to the very limited degree it contained marginally useful information, the traffic count data and estimates in the 2003 TIS were comparable to Dr. Kwasniak's data.

¶34 Although Reyes appeared to slightly revise his negligence theory regarding signage during the course of the litigation, in both the parties' Joint Pretrial Statement and Reyes' Amended Joint Pretrial Statement, his only theory of liability was that the Town "has comparative fault for its failure to follow the standard of care and state law requiring specific signage or barriers to warn of a canal that sits where Ocotillo [Road] ends." This theory had nothing to do with roadway design, planning, or development activities in response to a contemplated residential subdivision.

¶35 The joint pretrial statement must identify all "contested issues of fact and law that the parties agree are material or applicable." Ariz. R. Civ. P. 16(f)(2)(B). It also must include "a separate statement by each party of other issues of fact and law that the party believes are material." Ariz. R. Civ. P. 16(f)(2)(C). The joint pretrial statement supersedes the pleadings and "controls the subsequent course of the litigation." Carlton v. Emhardt , 138 Ariz. 353, 355, 674 P.2d 907, 909 (App. 1983). Of course, the joint pretrial statement is subject to modification or limitation by previous disclosures and the superior court. See id. The superior court recognized Reyes' negligence claim was limited to his signage theory of liability shortly before trial when, as previously noted, with regard to Reyes' suggestion that the Town might be negligent for failing to install fencing or barriers before the canal, the court granted the Town's motion in limine "excluding evidence of other negligence theories" and ruled that Reyes' "negligence theories shall be limited to those contained in [his] expert disclosures or depositions."

¶36 In this case, Reyes' entire pretrial legal theory was about signage, especially Type 4 object markers. Any alleged negligence in the design of the roadway due to traffic anticipated from a potential subdivision was never at issue, and the Town had no reason, based on Reyes' asserted theory of liability, to search for and disclose the 2003 TIS before trial. Simply stated, such a study was not "relevant to the subject matter of the action."

¶37 Accordingly, the Town did not violate either Rule 26.1(a)(8) or (a)(9) by failing to disclose the 2003 TIS. Because the superior court erred in finding the Town violated its disclosure obligations under Rule 26.1, its order granting a new trial on that ground must be set aside.

C. Material "Misconduct" and Prejudice

¶38 Finally, even were we to agree the Town violated Rule 26.1, we would reverse the order granting a new trial because we disagree that the Town's failure to disclose the 2003 TIS materially affected Reyes' rights and prejudiced him under the standards set forth in Leavy . Reyes has not shown that anything in the 2003 TIS materially undermined the conclusions of the Town's expert witness on signage. As for speculation that the study might have been the basis for a new negligence theory based on roadway design, nothing precluded Reyes and his retained expert from developing and asserting a road design theory of liability before trial, and nothing precluded Reyes from timely obtaining an accident reconstruction analysis, a road design study, and qualified expert opinions to support such theory. The Town's failure to produce the 2003 TIS does not, on this record, support allowing Reyes to interject an untimely disclosed new theory of potential liability. See Fischer , 242 Ariz. at 51, ¶ 26, 392 P.3d at 495. The superior court should not have granted a new trial on the basis that Reyes might have developed such a new theory of liability, and in doing so, the court abused its discretion. See generally Jimenez v. Wal-Mart Stores, Inc. , 206 Ariz. 424, 427, ¶¶ 8-9, 79 P.3d 673, 676 (App. 2003).

CONCLUSION

¶39 The superior court's order granting a new trial is reversed. The Town is awarded its taxable costs on appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21. We remand this case and direct the superior court to reinstate the jury verdict in favor of the Town.

      Lopez eventually pled guilty to three counts of aggravated assault, each a class three felony, and was sentenced to 7.5 years' imprisonment. See Maricopa County Case No. CR2013-429645.

      Although Dr. Bleyl had performed accident reconstructions in other cases, he did not do so in this case. Instead, he submitted a written report that relied upon the Gilbert Police Department's crash report, a site visit he made two months after the crash, twenty photographs taken during the site visit, and the MUTCD.

      Specifically, Dr. Bleyl opined the Town should have: (1) removed the "Not a Thru Street" warning sign along the paved portion of Ocotillo Road; (2) replaced it with a "Dead End" or "No Outlet" sign; and (3) placed five or six diamond-shaped object markers, spaced ten feet apart, across the dirt road before it intersected the canal.

      Reyes had previously deposed former Town engineer Michael Gillespie pursuant to Rule 30(b)(6), Ariz. R. Civ. P., on how the Town (1) developed, (2) planned or designed for artificial lighting on, and (3) planned or placed signage on the dirt access road. In advance of that deposition, and although it did not actually develop the dirt access road, the Town voluntarily disclosed its file related to the Freeman Farms development ("the Development File"). The Town produced Gillespie for the deposition in January 2015. After the deposition, Reyes made a formal request for production in February 2015, and in response, the Town produced its 2004 Arterial Street Plan, a document Gillespie had referenced in his deposition. The Town also disclosed documents related to its 2009 acquisition of the right-of-way of the subject area on Ocotillo Road. Reyes' examination of Gillespie did not touch on any traffic impact studies or related numbers; the request for production likewise did not seek disclosure of traffic impact studies, much less the 2003 TIS. Approximately one year later, Reyes made his public records request.

      When later deposed as a result of the motion for new trial, however, Howell testified that Dr. Kwasniak's traffic count "look[ed] consistent" with the 2003 TIS.

      The Town also argued in part that (1) the 2003 TIS was based on "decade-old traffic counts" that had "nothing to do with the existing condition of the roadway, negligence, or causation," (2) the Development File the Town had disclosed before the Gillespie deposition included comments from the Town's traffic engineer concerning specific pages of the 2003 TIS, putting Reyes on notice of the existence of the 2003 TIS, (3) Reyes' public records request was "outside of pending litigation" and not a request pursuant to Rule 34, Ariz. R. Civ. P., and (4) the 2003 TIS was not directly relevant because it did not measure traffic on the dirt area in front of the farm fronting Ocotillo Road after the paving stopped (which Dr. Kwasniak measured as six vehicles per day), and the configuration of the streets intersecting Ocotillo Road (and feeding traffic) was different in 2003 than in 2015, when Dr. Kwasniak conducted his traffic survey.

      The Town noted Reyes' negligence theories had been a "moving target" involving various types of signage, both before and during trial. Dr. Bleyl initially testified the Town was required to install a Type 1 (or possibly a Type 3) object marker, but then testified the Town could install "[T]ype 4 object markers or [T]ype 1 object markers, depending on how you would've defined is this an end of a roadway or does the roadway continue across the canal further to the east of Ocotillo Road continuing."

      At oral argument before this court, counsel for the Town further explained, "A traffic impact study does not dictate signing or safety issues down the road, and it couldn't be used to support the Town's position that the roadway was reasonably safe at the time of the accident."

      In his motion for new trial, Reyes had stated he considered any "alleged failure to produce evidence under [Rule] 26.1" to be a "non-issue" because he was relying solely on the Town's alleged failure to comply with his public records request. Nonetheless, the superior court found a Rule 26.1 violation, and the record is unclear to what extent, if any, the court relied on the alleged failure to properly respond to Reyes' public records request as a basis for granting the motion for new trial.

      See generally A.R.S. § 39-121.02(A) ("Any person who has requested to examine or copy public records pursuant to this article, and who has been denied access to or the right to copy such records, may appeal the denial through a special action in the superior court, pursuant to the rules of procedure for special actions against the officer or public body."), (C) ("Any person who is wrongfully denied access to public records pursuant to this article has a cause of action against the officer or public body for any damages resulting from the denial.").

      Before trial, Dr. Bleyl was not provided and never reviewed the lengthy Development File the Town had voluntarily and timely disclosed to Reyes. In addition to the review comment sheet from the Town's traffic engineer concerning the 2003 TIS, the Development File contained a 1999 traffic impact report, which also concerned the proposed Freeman Farms development, and it appears that, to the limited degree the 2003 TIS might have been relevant, it simply reinforced what was said in the 1999 traffic impact report.


source: Caselaw Access Project

author: EPPICH, Presiding Judge:

license: Public Domain

text:
    APACHE PRODUCE IMPORTS, LLC, an Arizona Limited Liability Company, Plaintiff/Appellant, v. MALENA PRODUCE, INC., an Arizona Corporation; Delta Fresh, LLC, an Arizona Limited Liability Company; and Delta Fresh Sales, LLC, an Arizona Limited Liability Company, Defendants/Appellees.
    No. 2 CA-CV 2019-0011
    Court of Appeals of Arizona, Division 2.
    Filed August 12, 2019
    Bowman and Brooke LLP, Phoenix, By William F. Auther, Travis M. Wheeler, and David T. Lundmark, Counsel for Plaintiff/Appellant
    McNamara Goldsmith PC, Tucson, By Eugene N. Goldsmith and Maria del Pilar Mendoza, Counsel for Defendants/Appellees
    Presiding Judge Eppich authored the opinion of the Court, in which Chief Judge Vásquez and Judge Eckerstrom concurred.
   EPPICH, Presiding Judge:

¶1 Apache Produce Imports LLC ("Apache") appeals from the trial court's grant of stay to Malena Produce Inc., Delta Fresh LLC, and Delta Fresh Sales LLC (collectively "Malena"). Apache argues the court abused its discretion because issuance of the stay was effectively a denial, without proper consideration, of Apache's pending request for a preliminary injunction. Because we conclude the court effectively denied the preliminary injunction request without considering it under the proper legal standard, we vacate the stay and remand the case for consideration of the preliminary injunction request.

Factual and Procedural Background

¶2 The present action stems from an ongoing dispute between Apache, a produce distributor, and International Greenhouse Produce S.A. de C.V. ("IGP"), a Mexican corporation that grows and markets produce. In 2008, IGP and Apache agreed that Apache would be IGP's produce distributor for ten years, but IGP disputes that, in 2016, it extended that agreement for five more years. That dispute is the subject of ongoing litigation in Mexico related to IGP's corporate governance, and also in Arizona, where IGP has sued for a declaration that the extension is invalid. See Int'l Greenhouse Produce, S.A. de C.V. v. Apache Produce Imports, LLC , No. 2 CA-CV 2018-0147, ¶¶ 1-3, 6-7, 2019 WL 1510997 (Ariz. App. Apr. 5, 2019) (mem. decision) (vacating trial court's denial of Apache's request for preliminary injunction against IGP but finding no jurisdiction to review court's grant of IGP's request for stay).

¶3 After Malena entered an agreement with IGP to distribute IGP's produce for the 2018-19 growing season, Apache sued Malena for interference with contract and unjust enrichment, seeking money damages and an injunction preventing Malena from receiving or distributing IGP's produce. Apache then applied for a temporary restraining order and a hearing on its preliminary injunction request. Four weeks later, Malena moved to stay the case. Without addressing Apache's pending request for injunctive relief, the trial court granted the stay, finding it would "save[ ] substantial resources" and "avoid[ ] multiple suits on the same subject matter, piecemeal litigation, difficult questions of foreign law that bear upon important policy issues, and conflicting judgments by different courts." Apache filed a special action, in which this court summarily declined to accept jurisdiction. See Apache Produce Imports, LLC v. Malena Produce, Inc. , No. 2 CA-SA 2018-0072 (Ariz. App. Nov. 20, 2018) (order). Apache timely appealed.

Discussion

Jurisdiction

¶4 Apache contends that we have jurisdiction in this case under A.R.S. § 12-2101(A)(5)(b), which provides appellate jurisdiction from orders "refusing to grant ... an injunction." Apache acknowledges that the trial court did not explicitly refuse to grant the injunction, but argues it effectively did so by granting Malena's stay request without considering the pending injunction request.

¶5 We agree the trial court effectively refused to grant the requested injunction. Before hearing the preliminary injunction request, the court held a hearing on Malena's later-filed stay motion. At the hearing, the court granted the stay from the bench without considering the pending preliminary injunction request and confirmed that the grant of stay was final pending results in the related litigation.

¶6 Malena contends the trial court did not refuse the injunction request because the court may still address it after the other litigation resolves. But "preliminary injunctive relief exists for a reason: to provide 'speedy relief from irreparable injury.' " Apple, Inc. v. Samsung Elecs. Co. , 678 F.3d 1314, 1334 (Fed. Cir. 2012) (O'Malley, Circuit Judge, concurring in part, dissenting in part) (emphasis added) (quoting Ross-Whitney Corp. v. Smith Kline & French Labs. , 207 F.2d 190, 198 (9th Cir. 1953) ). By indefinitely postponing any possibility for relief, the stay order effectively denied Apache its opportunity for "speedy relief," and thus effectively denied the injunction request. Id. (quoting Ross-Whitney Corp. , 207 F.2d at 198 ).

¶7 Apache does not cite, nor are we aware of, any Arizona case concluding jurisdiction exists under § 12-2101(A)(5)(b) when a stay order effectively denies a preliminary injunction. But this court has found jurisdiction under § 12-2101 when a preliminary injunction request is effectively denied by an order addressing a different issue. See Transp. Workers Union, Local 502, AFL-CIO v. Tucson Airport Auth., Inc. , 11 Ariz. App. 296, 298, 464 P.2d 367 (1970) (finding appellate jurisdiction under § 12-2101 where appealed order, which dissolved a temporary restraining order as moot, "in effect denied the preliminary injunction").

¶8 We find the reasoning in Procter & Gamble Co. v. Kraft Foods Global, Inc. , 549 F.3d 842 (Fed. Cir. 2008), to be persuasive. In that case, the court concluded-under a jurisdiction statute substantially similar to § 12-2101(A)(5)(b) -that an appellate court has jurisdiction when a trial court grants a stay and refuses to consider a pending motion for a preliminary injunction, effectively denying the injunction request. Procter & Gamble , 549 F.3d at 846 (finding jurisdiction under 28 U.S.C. § 1292(a)(1) where trial court imposed stay and refused to consider merits of preliminary injunction request until stay was lifted); see also Clean Air Coordinating Comm. v. Roth-Adam Fuel Co. , 465 F.2d 323, 325 (7th Cir. 1972) (finding jurisdiction where stay imposed, pending resolution of issues in other proceedings, "in effect constituted the refusal of a preliminary injunction"); Abbott v. Perez , --- U.S. ----, ----, 138 S. Ct. 2305, 2319, 201 L.Ed.2d 714 (2018) ("[W]here an order has the 'practical effect' of granting or denying an injunction, it should be treated as such for purposes of appellate jurisdiction." (quoting Carson v. Am. Brands, Inc. , 450 U.S. 79, 83, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981) )). The court concluded that jurisdiction exists to review an ordinarily non-appealable stay order in this circumstance because the imposition of the stay is intertwined with the effective denial of the injunction. See Procter & Gamble , 549 F.3d at 846. This reasoning is sound and consistent with the result in Transport Workers Union . We therefore conclude jurisdiction exists under § 12-2101(A)(5)(b) to review the stay order as an effective denial of Apache's preliminary injunction request.

Order of stay and effective refusal of preliminary injunction

¶9 We review a trial court's grant of stay for an abuse of discretion, Tri City Nat'l Bank v. Barth , 237 Ariz. 90, ¶ 10, 346 P.3d 27 (App. 2015), and review the denial of preliminary injunction under that same standard, Shoen v. Shoen , 167 Ariz. 58, 62, 804 P.2d 787, 791 (App. 1990). When an order denies a preliminary injunction, "[a]n abuse of discretion exists if the superior court applied the incorrect substantive law or preliminary injunction standard, based its decision on an erroneous material finding of fact, or applied the appropriate preliminary injunction standard in a manner resulting in an abuse of discretion." TP Racing, L.L.L.P. v. Simms , 232 Ariz. 489, ¶ 8, 307 P.3d 56 (App. 2013). As the stay order is intertwined with the effective denial of preliminary injunction, we will consider them together. See Procter & Gamble , 549 F.3d at 846-47 (when order denies preliminary injunction and grants stay, "the denial of the preliminary injunction and the stay must be considered together" and the portion of the order granting the stay is also appealable (quoting Privitera v. Cal. Bd. of Med. Quality Assurance , 926 F.2d 890, 892-93 (9th Cir. 1991) )).

¶10 The considerations in granting or denying a preliminary injunction differ from those involved in deciding whether to grant a stay. In ruling on a request for preliminary injunction, a court must consider whether the moving party has shown: (1) a strong likelihood of success at trial on the merits, (2) the possibility of irreparable injury not remediable by damages, (3) a balance of hardships in its favor, and (4) public policy favoring the injunction. Shoen , 167 Ariz. at 63, 804 P.2d at 792. As an alternative to showing "probable success on the merits and the possibility of irreparable injury," the moving party may prevail by showing "the presence of serious questions" and that " 'the balance of hardships tip sharply' " in its favor. Id. (quoting Justice v. Nat'l Collegiate Athletic Ass'n , 577 F. Supp. 356, 363 (D. Ariz. 1983) ). In deciding whether to grant a stay, the court considers whether the stay would further purposes such as (1) "avoiding increased costs" to parties, (2) "preventing harassment by repeated suits involving the same subject matter," (3) "avoiding extra cost and burden to judicial resources," (4) "avoiding piecemeal litigation," (5) "avoiding unusually difficult questions of federal law that bear upon important policy issues," and (6) "avoiding conflicting judgments by state and federal courts." Tonnemacher v. Touche Ross & Co. , 186 Ariz. 125, 130, 920 P.2d 5, 10 (App. 1996).

¶11 In Procter & Gamble , the federal circuit court ruled the trial court abused its discretion by issuing a stay that effectively denied a preliminary injunction motion. 549 F.3d at 847. In that case, which applied a four-factor preliminary injunction standard substantially similar to the one employed in Arizona, the trial court had expressly declined to consider three of the four factors. Id. Instead, it vacated a scheduled hearing on the motion and ruled the request for a preliminary injunction was moot. Id. at 845, 847. There, much like here, the court's aim was to avoid analyzing claims pending in other proceedings. Id. at 845. But the federal circuit court concluded that the trial court could not grant a stay and avoid the pending preliminary injunction request "without considering and balancing the required factors" for a preliminary injunction. Id . at 847.

¶12 We similarly conclude that a trial court abuses its discretion when it avoids considering a pending preliminary injunction request by granting a stay. Because the considerations for stays and preliminary injunctions differ, granting a stay without considering a pending preliminary injunction request effectively denies speedy relief to a party facing allegedly irreparable harm without properly considering whether such relief is justified. None of the general considerations for a stay bears on the likelihood that a party will prevail at trial or suffer irreparable injury, for example. See Tonnemacher , 186 Ariz. at 130, 920 P.2d at 10. And while factors favoring a stay could certainly be relevant to determining a balance of hardships or whether public policy favors an injunction, see id. , merely finding that a stay would further one or more valid objectives is insufficient to determine whether a preliminary injunction is warranted.

¶13 Therefore, the trial court abused its discretion by issuing a stay order that effectively denied Apache's pending preliminary injunction request. While the court's findings and conclusions reflect the general considerations for a grant of stay, they do not reflect the proper considerations for a preliminary injunction request and therefore were not sufficient to determine whether a preliminary injunction was warranted. While we acknowledge the court's concern that determining Apache's likelihood of ultimate success on the merits may not be easy, the burden is on Apache to establish the requisite likelihood of success. By pre-empting a hearing on the preliminary injunction and imposing the stay order, the court foreclosed Apache's opportunity to provide information shedding light on its chances. Moreover, the court's concern for conflicting judgments does not warrant denial of the preliminary injunction request, as the preliminary injunction standard expressly contemplates uncertainty as to the merits. See Shoen , 167 Ariz. at 63, 804 P.2d at 792.

Disposition

¶14 We vacate the trial court's stay order and remand for consideration of Apache's preliminary injunction request.

      As we have found jurisdiction exists under § 12-2101(A)(5)(b), we need not reach Apache's contention that jurisdiction exists under § 12-2101(A)(3).

      We reject Malena's contention that there is no difference between the stay here and the stay the trial court issued in Apache's litigation with IGP, which we declined to overturn. In that case, Apache did not request a preliminary injunction until after the court granted the stay; thus the grant of stay did not effectively deny a preliminary injunction request. See Int'l Greenhouse Produce , No. 2 CA-CV 2018-0147, ¶ 3.

      As Malena did not prevail, we decline its request for attorney fees and costs under A.R.S. §§ 12-341.01 and 12-342. We do not consider Malena's arguments that A.R.S. § 12-1802(5) and the common law bar injunctive relief, that Apache's request for preliminary injunction fails under the Shoen standard, and that Apache's request is vitiated because it cited to its original complaint rather than its amended complaint in its motion. These arguments, which concern the merits of the preliminary injunction request, may be raised when the trial court considers that request on remand.


author: The opinion of the court was delivered by Malone, J.: Stegall, J., concurring in part and dissenting in part:

text:
    Brenda L. ROSENDAHL, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
    No. 117,862
    Supreme Court of Kansas.
    Opinion filed August 23, 2019.
    Joanna Labastida, of Legal Services Bureau, Kansas Department of Revenue, argued the cause, and Dwight R. Carswell, assistant solicitor general, was with her on the brief for appellant.
    Ronald P. Wood, of Clyde & Wood, L.L.C., of Overland Park, argued the cause and was on the brief for appellee.
   The opinion of the court was delivered by Malone, J.:

The Kansas Department of Revenue (KDOR) appeals the district court's decision reversing the administrative suspension of Brenda Rosendahl's driving privileges and finding the statutorily required $50 fee for an administrative hearing to challenge the suspension of driving privileges is unconstitutional. We reverse the district court's reversal of Rosendahl's suspension and reinstate the suspension. We affirm the district court's finding that the $50 hearing fee is unconstitutional for the reasons stated in Creecy v. Kansas Dept. of Revenue , 310 Kan. ----, ----, P.3d ----, 2019 WL 3977508 (2019) (No. 117,035, this day decided).

FACTUAL AND PROCEDURAL OVERVIEW

On December 12, 2015, at 5:35 p.m., Miami County Sheriff's Deputy Jacob Bell was dispatched to a possible noninjury accident. Dispatch advised that the driver might be intoxicated. Bell arrived at the scene at the same time as Sergeant Gray. Bell noticed a car just off the side of the roadway and a pickup near where he pulled onto the scene. Bell asked an unidentified man next to the pickup what happened, but the man just mumbled something and left.

Bell turned his attention to Rosendahl, who was speaking with Sergeant Gray. According to Bell, Rosendahl said she drove off the road after missing her turn at a dark curve. Bell did not know what time the accident occurred, but he assumed it happened shortly before he was dispatched at 5:35 p.m. because it gets dark in December shortly after 5:00 p.m. Bell noticed Rosendahl had bloodshot eyes, slurred her words, and had the odor of alcohol coming from her breath.

Bell asked Rosendahl what she had had to drink, and she admitted to having one beer several hours earlier. Bell described the area of the accident as an industrial-type with no visible restaurants, bars, or liquor stores nearby. Bell testified that he had no indication that Rosendahl had consumed alcohol post-driving; however, he did not explicitly ask Rosendahl about post-driving alcohol consumption.

Bell conducted standardized field sobriety tests which indicated that Rosendahl was impaired, and she failed the preliminary breath test (PBT). Bell arrested Rosendahl for driving under the influence and transported her to the police station. Rosendahl submitted to an Intoxilyzer 8000 breath test which showed her breath alcohol concentration was 0.209. On the Officer's Certification and Notice of Suspension Form (DC-27), Bell certified that reasonable grounds existed to believe Rosendahl had been operating a vehicle while under the influence of alcohol and her test results showed an alcohol concentration of .08 or greater.

Rosendahl requested an administrative hearing to challenge her license suspension and paid the $50 fee for the hearing. The administrative hearing officer affirmed the suspension, finding Bell had reasonable grounds to believe Rosendahl was operating a vehicle under the influence of alcohol.

Rosendahl filed an amended petition for trial de novo and judicial review of her license suspension alleging inter alia that 1) she was arrested and tested without reasonable grounds; and 2) submission of the required $50 administrative hearing fee before the hearing was a denial of due process and equal protection.

At trial de novo before the district court, Bell testified as summarized above. Rosendahl and an acquaintance, Alan Macek, testified that her intoxication was due to alcohol consumption after her car left the roadway and before law enforcement made contact with her.

According to Rosendahl, she lived about two miles outside Osawatomie. Between 4 and 4:30 p.m., she was driving home from running errands in Osawatomie. She saw a deer out of the corner of her eye that caused her to jerk and drive into the ditch. She could not get her car out of the ditch and had left her phone at home, so she walked to a nearby auto body shop operated by Macek to call her husband Gary. Macek offered Rosendahl a drink which she accepted because she was shaken up from the accident and did not plan to drive home. Macek gave Rosendahl a 16-ounce cup of straight raspberry vodka, which she finished before her husband arrived at her car.

Rosendahl testified she saw officers coming down the road after Macek and her husband got her car positioned where Macek could pull it out of the ditch. She told her husband to return home. Rosendahl said she "vaguely" remembered talking with the officers about how dark the corner was but stated that she "had a pretty good buzz on" at that time. When the officers asked her if she had been drinking, she thought they meant before her car went into the ditch, so she said she had consumed a beer several hours earlier. Rosendahl admitted she did not tell the officers that a deer caused her to go in the ditch or that she had consumed alcohol after the accident. She testified that the only way Bell would have learned about her post-driving alcohol consumption was by talking to Macek.

Macek corroborated Rosendahl's account that she had arrived at his body shop after her car went into the ditch, that he gave her a 16-ounce Solo cup of raspberry vodka, and that he helped Gary pull Rosendahl's car out of the ditch. Macek testified he was still there when the police arrived, but he returned to his body shop shortly thereafter. Macek did not tell the officers that he gave Rosendahl vodka after the accident at that time.

With Rosendahl's and Macek's testimony in mind, Bell testified that he did not know whether Rosendahl had gone to Macek's body shop. Bell also testified that he did not recall seeing Rosendahl with a red Solo cup in her hands.

Because of a recording malfunction, a portion of the district court trial transcript was unavailable, so the parties prepared a statement of proceedings in lieu of the balance of the transcript. See Supreme Court Rule 3.04(a) (2018 Kan. S. Ct. R. 23). The statement of proceedings provides that after the parties presented evidence, during a recess and off the record, the district court opined about a possible estoppel issue. After the recess, KDOR argued Rosendahl should be estopped from claiming for the first time at the administrative hearing and subsequently in the district court that she had consumed alcohol post-driving.

The district court reversed the administrative agency decision based on Rosendahl's intervening alcohol consumption, finding Swank v. Kansas Dept. of Revenue , 294 Kan. 871, 281 P.3d 135 (2012), and the later Court of Appeals' decision in that case on remand from this court, Swank v. Kansas Dept. of Revenue , No. 102,223, 2012 WL 4676985 (Kan. App. 2012) (unpublished opinion), controlled.

The parties' prepared statement of proceedings provides:

"The district court summarized its factual findings; specifically that the Petitioner had run off the road in or near her hometown so she was, therefore, familiar with her surroundings. She had gone to Alan Macek's mechanic shop, and had been offered alcohol, which she consumed. When the police arrived, she was clear[ly] intoxicated. However, the police did not specifically investigate whether she had consumed alcohol post-driving, and that should have factored into their reasonable grounds determination. The officers knew the Petitioner had left her vehicle and did not inquire as to where she had been after the car had gone into the ditch. The court believed that the officer should have inquired more about her opportunity to drink with persons in the area, including Mr. Macek and anyone else who might have intervened since the accident.
"The district court held that it appeared from the Swank opinion that if there was any opportunity to consume alcohol post-driving that the officer must consider that in his or her reasonable grounds determination."

The statement of proceedings further provides that the district court speculated about the estoppel issue, but did not rule on it, suggesting that if the case was appealed, the Court of Appeals might direct the parties on the issue.

The district court also found the $50 filing fee for an administrative hearing required by K.S.A. 2015 Supp. 8-1020(d)(2) is unconstitutional, but that this issue was moot as to Rosendahl because she paid the fee.

KDOR timely appeals to this court. Based on the district court's finding that K.S.A. 2015 Supp. 8-1020(d)(2) is unconstitutional, this court has jurisdiction under K.S.A. 60-2101(b) ("An appeal from a final judgment of a district court in any civil action in which a statute of this state or of the United States has been held unconstitutional shall be taken directly to the supreme court.").

OFFICER'S REASONABLE GROUNDS TO REQUEST AN EVIDENTIARY BREATH TEST

Standard of Review

The district court's journal entry concluded the facts were not in dispute. Neither party challenges this finding on appeal. We agree that the facts are not in dispute; therefore, this court has de novo review. See Swank , 294 Kan. at 881, 281 P.3d 135 ("Only when there is no factual dispute does an appellate court exercise de novo review.").

Analysis

K.S.A. 2015 Supp. 8-1020(h)(2) sets forth an exclusive list of issues that may be addressed at an administrative hearing on a driver's license suspension when the officer certifies that a person has failed a breath test. See Swank , 294 Kan. at 875, 281 P.3d 135. That list includes "whether ... [a] law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol." K.S.A. 2015 Supp. 8-1020(h)(2)(A). See also K.S.A. 2015 Supp. 8-1001(b) (providing that law enforcement officer shall request a person to submit to a breath or other bodily substance test to determine the presence of alcohol or drugs if certain conditions exist and "at the time of the request, the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol ....").

Following an administrative hearing, when a licensee challenges the agency's decision in district court "the licensee shall have the burden to show that the decision of the agency should be set aside." K.S.A. 2015 Supp. 8-1020(q). Rosendahl did not argue in the district court or before this court that evidence of her post-driving alcohol consumption was relevant to other issues enumerated in K.S.A. 2015 Supp. 8-1020(h)(2). Indeed, the only issue presented to us for decision is whether Bell had reasonable grounds to request that Rosendahl submit to an evidentiary breath test.

Nevertheless, the dissent argues we should hold the district court was right for the wrong reason, under an issue not presented to or decided by the district court. We decline this course, as our Legislature has directed that judicial review of driver's license suspensions "shall be in accordance with the Kansas judicial review act" (KJRA). K.S.A. 2018 Supp. 8-259. Under the KJRA, "[a] petition for judicial review shall set forth: ... the petitioner's reasons for believing that relief should be granted." (Emphasis added.) K.S.A. 2018 Supp. 77-614(b)(6).

" 'In other words, a petition for judicial review must set forth the specific issues that will be raised before the district court. [Citation omitted.] This court has indicated this requirement serves two purposes: (1) It puts the district court and administrative agency on notice as to what issues will be reviewed, and (2) it assures that only issues that were raised at the administrative hearing will be considered on appeal.' " Bd. of Cherokee County Comm'rs v. Kansas Racing & Gaming Comm'n , 306 Kan. 298, 320, 393 P.3d 601 (2017) (quoting Kingsley v. Kansas Dept. of Revenue , 288 Kan. 390, 405, 204 P.3d 562 [2009] ).

See also Huelsman v. Kansas Dept. of Revenue , 267 Kan. 456, 462-63, 980 P.2d 1022 (1999) ("The burden to produce evidence is on the State in the DUI criminal case, whereas the burden is on the licensee in the administrative action and subsequent appeal of that action."); Henke v. Kansas Dept. of Revenue , 45 Kan. App. 2d 8, 13, 246 P.3d 408 (2010) ("In other words, the licensee bears the initial burden of putting on evidence showing that at least one of the issues listed in the applicable subsection of K.S.A. 2008 Supp. 8-1020(h) has not been satisfied."); cf. State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014) ("[T]his argument is raised for the first time on appeal and should fail on that basis alone.").

Unlike the dissent, as an abstract proposition, we see no absurdity in recognizing that a person can drink alcohol to the point of impairment both before and after operating a vehicle. Therefore, we will not consider a statutory means for relief that Rosendahl failed to request and then impugn the administrative agency for not presenting evidence to rebut the unknown issue. In summary, under the procedural posture of this case, we will not address the issue raised by the dissent sua sponte that has not been argued, briefed, raised, or even considered by any party, and which could result in a ruling that may have unforeseen consequences in future cases.

Turning to the issue before us, "Kansas courts evaluate 'reasonable grounds' by looking to probable cause standards." Swank , 294 Kan. 871, Syl. ¶ 3, 281 P.3d 135. See also Smith v. Kansas Dept. of Revenue , 291 Kan. 510, 514, 242 P.3d 1179 (2010) ("This court has found the term 'reasonable grounds' synonymous in meaning with 'probable cause,' but in doing so has noted an officer may have reasonable grounds to believe a person is operating a vehicle under the influence sufficient to request a test under the statute-but not have the probable cause required to make an arrest under K.S.A. 8-1001."). "Probable cause to arrest is the reasonable belief, drawn from the totality of information and reasonable inferences available to the arresting officer, that the defendant has committed or is committing a specific crime." State v. Johnson , 297 Kan. 210, 222, 301 P.3d 287 (2013) (citing Sloop v. Kansas Dept. of Revenue , 296 Kan. 13, 20, 290 P.3d 555 [2012] ).

The district court found that this court's opinion in Swank and the later Court of Appeals opinion in that case after remand from this court controlled. The district court reasoned that "it appeared from the Swank opinion that if there was any opportunity to consume alcohol post-driving, that the officer must consider that in his or her reasonable grounds determination." Therefore, the district court reversed the suspension because of Rosendahl's intervening alcohol consumption. We hold that the district court misapplied Swank ; therefore, we will review and apply that opinion to the undisputed facts here.

Swank considered as a matter of first impression whether evidence of post-driving alcohol consumption falls within the scope of K.S.A. 8-1020(h)(2). There, an officer responded to a call reporting Swank for driving recklessly. The officer spoke to the caller, who reported that Swank had chased the caller in her car and was highly intoxicated. The officer left to look for Swank and found her a few blocks away pulled into a driveway. Swank was already out of her car and the officer saw no alcohol in her hands as he approached her. According to the officer, Swank admitted she had been drinking and admitted following the other driver. The officer did not ask Swank if she consumed alcohol post-driving. Swank testified before the district court that she consumed three beers earlier in the evening. Swank also testified that when she got out of her car, she drank from a half-pint bottle of "Hot Damn." She said she consumed no alcohol other than the Hot Damn after driving, but admitted ownership of an open can of cold beer the officer found in her car during a search conducted after she submitted to a breath test. 294 Kan. at 872-73, 281 P.3d 135.

This court held that the Court of Appeals erred as a matter of law in refusing to consider Swank's testimony about her post-driving alcohol consumption because that fact was potentially relevant to the reasonable grounds issue under K.S.A. 8-1020(h)(2)(A). Swank , 294 Kan. at 879-80, 281 P.3d 135. Swank recognized that another panel of the Court of Appeals had so held, reasoning " '[t]he more alcohol a person drinks after driving but before testing, the more unreasonable may be the officer's grounds for belief that the person drove while under the influence of alcohol.' " 294 Kan. at 879, 281 P.3d 135 (quoting Katz v. Kansas Dept. of Revenue , 45 Kan. App. 2d 877, 893-94, 256 P.3d 876 [2011] ).

Swank also looked to courts in Missouri and Nevada which had likewise recognized the potential relevance of post-driving alcohol consumption in similar circumstances. Swank recognized that these courts were "careful to note that it is the information known to the officer at the time that matters and that courts should avoid giving post-driving alcohol consumption controlling weight." 294 Kan. at 880, 281 P.3d 135 (discussing Warner v. Missouri Director of Revenue , 240 S.W.3d 745, 751 [Mo. App. 2007] ; Weaver v. State, Dept. of Motor Vehicles , 121 Nev. 494, 498-99, 117 P.3d 193 [2005] ).

Weaver , the Nevada case discussed in Swank , supports KDOR's position here. There, an officer arrived at the scene of the accident and the driver exhibited signs of intoxication. When the officer asked the driver how much he had had to drink, the driver said he walked home after the accident and had two beers. At the administrative hearing, the driver testified that he had several drinks at his home after the accident. The Nevada Supreme Court held "[t]hat [the driver] chose later to modify his story and testify at the hearing that when he returned home after the accident he consumed four or five shots of tequila and five or six beers has no impact upon the inquiry into the reasonableness of the officer's beliefs because this was not part of the information evaluated by [the officer] at the scene." 121 Nev. at 499, 117 P.3d 193.

Swank said this point was well taken, but it added that the reasonableness of the officer's actions is key:

"[A]n officer cannot insulate his or her assessment of the existence of reasonable grounds from review or criticism by a district or appellate court by maintaining a posture of willful ignorance on a suspect's post-driving alcohol consumption. Reasonableness is key. If the situation is such that a reasonable law enforcement officer would investigate, it behooves an actual officer to do so. This is particularly true when an officer's personal observations of the scene or the suspect suggest the possibility of post-driving alcohol consumption. Such consumption is a factor to be considered and evaluated, not ignored.
"... ' "Reasonable grounds to believe" a driver is under the influence ... demands consideration of the behavior of a driver before, during, and after he or she is behind the wheel.' [ Citation omitted.]" 294 Kan. at 880, 281 P.3d 135.

Swank remanded to the Court of Appeals with directions that it was legally permissible for the district court to consider the driver's testimony about her post-driving alcohol consumption and any evidence that the officer did or did not investigate it thoroughly. 294 Kan. at 882-83, 281 P.3d 135. On remand, the Court of Appeals affirmed the district court's order that the officer lacked reasonable grounds. 2012 WL 4676985, at *4.

Applying Swank here, Deputy Bell did not "insulate his ... assessment of the existence of reasonable grounds ... by maintaining a posture of willful ignorance" with respect to the possibility of post-driving alcohol consumption. See Swank , 294 Kan. at 880, 281 P.3d 135. When Bell arrived, Rosendahl was outside her vehicle at the scene of the accident. The accident took place in an industrial-type area and Bell saw no restaurants, bars, or liquor stores nearby. Rosendahl told Bell that she drove her car into the ditch after missing her turn at a dark curve, so Bell reasonably inferred that the accident occurred shortly before he was dispatched at 5:35 p.m. Bell noticed Rosendahl had bloodshot eyes, slurred her words, and had the odor of alcohol coming from her breath. Bell asked Rosendahl what she had had to drink, and Rosendahl told Bell she had one beer several hours earlier. Standardized field sobriety tests indicated that Rosendahl was impaired, and Rosendahl failed a PBT. Despite her undisputed intoxication, neither Rosendahl nor Macek told Bell that she had consumed 16 ounces of straight vodka after the accident. Bell testified that he had no indication that Rosendahl had consumed alcohol post-driving nor that she had been at Macek's shop.

Under the facts and circumstances of this case, we hold the district court erred in giving post-driving alcohol consumption evidence controlling weight on the issue of whether the officer had reasonable grounds to request a breath test. Bell did not ignore or maintain a posture of willful ignorance toward evidence suggesting the possibility of post-driving alcohol consumption. See Swank , 294 Kan. at 880, 281 P.3d 135.

Considering the totality of the circumstances, when Bell asked Rosendahl to submit to a breath test, Bell had reasonable grounds to believe Rosendahl was operating a vehicle under the influence of alcohol. Based on this decision, we need not reach KDOR's argument that Rosendahl should be equitably estopped from raising post-driving alcohol consumption for the first time at her administrative hearing.

CONSTITUTIONALITY OF $50 ADMINISTRATIVE HEARING FEE

KDOR argues the district court erred in finding K.S.A. 2015 Supp. 8-1020(d)(2) unconstitutional. This issue was decided adversely to KDOR's position in Creecy v. Kansas Dept. of Revenue , 310 Kan. ----, ----, P.3d ----, 2019 WL 3977508 (2019) (No. 117,035, this day decided). For the reasons set forth in Creecy , we hold the district court here reached the correct result.

The judgment of the district court reversing the administrative suspension of Rosendahl's driving privileges is reversed. The judgment of the district court holding K.S.A. 2015 Supp. 8-1020(d)(2) is unconstitutional is affirmed, but this judgment does not impact Rosendahl's suspension. KDOR's suspension of Rosendahl's driving privileges is reinstated.

Biles, J., not participating.

Michael J. Malone, Senior Judge, assigned.

Stegall, J., concurring in part and dissenting in part:

I agree with the majority that the officer had reasonable grounds to request a breath test from Rosendahl. I also agree with our holding that the administrative hearing fee set forth in K.S.A. 2015 Supp. 8-1020(d)(2) is unconstitutional. See Creecy v. Kansas Dept. of Revenue , 310 Kan. ----, --- P.3d ----, 2019 WL 3977508 (2019) (No. 117,035, this day decided) (Stegall, J., concurring in the result). I disagree, however, with the result. I would reverse the Court of Appeals and affirm the district court as being right for the wrong reason.

The basic problem with the majority's holding is that while the officer did have reasonable grounds to request the test, the inquiry under K.S.A. 2015 Supp. 8-1020(h)(2) should not stop there. Critical facts surfaced at the administrative hearing that were unavailable to the officer when he reasonably requested the breath test. Importantly, the fact that Rosendahl consumed a significant amount of alcohol after driving is now undisputed. This, together with the lack of any evidence of intoxication while driving, means there is no probable cause to believe that Rosendahl was driving under the influence. Instead, the totality of the evidence suggests that Rosendahl failed the breath test because she consumed alcohol after the accident.

In my view, reading K.S.A. 2015 Supp. 8-1020(h)(2) as a whole requires the Department of Revenue to prove that the driver was operating or attempting to operate a vehicle while impaired. Whether "the person was operating or attempting to operate a vehicle" is a fact to consider within "the scope of the hearing." K.S.A. 2015 Supp. 8-1020(h)(2)(H). For subsection (h)(2)(H) to have relevance during an administrative license suspension hearing, it must mean whether the person was operating or attempting to operate a vehicle while impaired . Otherwise, subsection (h)(2)(H) has no meaning. The only alternative meaning-that the person was operating or attempting to operate a vehicle at some time before becoming impaired-is absurd. But we must interpret statutes to avoid absurd results. Northern Natural Gas Co. v. ONEOK Field Services Co. , 296 Kan. 906, 918, 296 P.3d 1106 (2013) ("[W]e must construe statutes to avoid unreasonable or absurd results, and we presume the legislature does not intend to enact useless or meaningless legislation.").

In fact, the outcome today is just such an absurd result. Rosendahl's license is being suspended even though the undisputed facts make it clear she was not driving under the influence. By effectively reading K.S.A. 2015 Supp. 8-1020(h)(2)(H) out of the statute, we have approved a license suspension solely because the officer had reasonable grounds to request a breath test at the scene of the accident-even though everyone now knows that Rosendahl failed the test because she consumed alcohol after the accident. The Legislature did not intend this result. A conclusion supported by a plain reading of K.S.A. 2015 Supp. 8-1020(h)(2), aided by a reasonable interpretation of the statute as a whole so as to avoid an absurd result.

The majority is at great pains to justify ignoring the substance of the case on preservation grounds. My colleagues object that I have reached out to grab an issue "not presented to or decided by the district court," which also "has not been argued, briefed, raised, or even considered by any party" on appeal. Op. at 351-352. But in my view, this puts form over substance in a way courts should avoid. See State v. Tafoya , 304 Kan. 663, 670, 372 P.3d 1247 (2016) (" 'The law of this state is realistic. Substance prevails over form.' "). Rosendahl's argument has always been that she was not driving while intoxicated, and all the evidence in the record supports her contention. So we should not ignore this central fact of the case because Rosendahl's attorney framed the argument in terms of reasonable suspicion rather than as a failure of proof under K.S.A. 2015 Supp. 8-1020(h)(2)(H). The issue was raised, albeit under a different theory of relief. Finally, the majority insists that it has merely reached the common-sense conclusion that "a person can drink alcohol to the point of impairment both before and after operating a vehicle." Op. at 351. Well, yes. So what? That case is not this case. Here, there is no evidence Rosendahl was impaired before driving.

For this reason, I would affirm the district court's reversal of the agency's decision to suspend Rosendahl's license.

Rosen and Johnson, JJ., join in the foregoing concurring and dissenting opinion.

      REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 117,862 vice Justice Biles under the authority vested in the Supreme Court by K.S.A. 20-2616.