Frenkel v. Maricopa County , 177 Ariz. 187 ( 1993 )

OPINION

SCHAFER, Judge.

The issue to be resolved is whether a motion for partial summary judgment is an appropriate procedure to use is determining which defendant, Maricopa County or the Arizona Department of Revenue, is responsible for defending an appeal to this Court.

This is a property tax appeal brought pursuant to A.R.S. § 42-177, subsection A. In accordance with section 42-177(0 both the Arizona Department of Revenue (the Department) and Maricopa County (the County) are named as defendants in the action. The County has filed a motion for partial summary judgment seeking, in effect, approval of using the summary judgment procedure to implement 1993 revisions to section 42-177 which allow the Department to be relieved of defending certain types of tax appeals. No opposition to the motion was filed.

ANALYSIS

Subsection C of section 42-177 designates which defendant, the Department or the County, is responsible for defending an appeal brought under section 42-177. Generally, subsection C requires the Department and the attorney general’s office to defend the appeal only if the Department is the one valuing the property at issue. Otherwise, the county which values and assesses the subject property is required to defend the appeal. A.R.S. § 42-177(C).

There are two instances where the Department may voluntarily relieve the county of its duty to defend and assume responsibility for defense of the appeal. This may happen when:

1. In the opinion of the department, the appeal involves an issue of statewide importance, in which case the department and the attorney general’s office shall be responsible for the defending the appeal.

2. The department disapproves a change in valuation or assessment submitted by the county pursuant to § 42-148 and the county does not appeal or is unsuccessful in its appeal of the disapproval, in which case the department and the attorney general’s office shall be responsible for defending the appeal.

A.R.S. § 42-177(0(1), (2). Neither instance exists here.

The Department has not notified either this Court or any of the parties that it views this appeal as one involving issues of statewide importance. Further, this action is not one involving the Department’s disapproval of a change in valuation or assessment submitted by the County. Therefore, the County is the one responsible for defending this appeal.

CONCLUSION

When both the appropriate county and the Department are named as defendants in a property tax appeal under section 42-177, either defendant may bring a motion for partial summary judgment against the other in order to resolve the issue of which defendant is responsible for defending the appeal. Here, the County is the one responsible for defending the appeal.

IT IS ORDERED granting Defendant Maricopa County’s Motion for Partial Summary Judgment.

This opinion is not a final, appealable judgment; other orders will follow. See Devenir Associates v. City of Phoenix, 169 Ariz. 500, 821 P.2d 161 (1991).