RANCH DEL SOL v. HON KENWORTHY/PERRY

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE RANCHO DEL SOL, L.L.C., an Arizona limited liability company, ) ) ) ) Petitioner, ) ) v. ) ) THE HONORABLE LAWRENCE C. ) KENWORTHY, Judge of the SUPERIOR ) COURT OF THE STATE OF ARIZONA, ) in and for the County of YUMA, ) ) Respondent Judge, ) ) MICHAEL J. PERRY and MARY LOU ) PERRY, husband and wife; JON M. ) PERRY, a single man; GERALD W. ) BRACK, II and VANESSA L. BRACK, ) husband and wife; MICHAEL ) GARDNER, a single man; FRANCIS ) X. IRR and MAUREEN A. IRR, ) husband and wife, ) ) Real Parties in Interest. ) __________________________________) DIVISION ONE FILED: 12/11/2012 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-SA 12-0246 Yuma County Superior Court No. S1400CV0200500396 DEPARTMENT E DECISION ORDER This special action came on regularly for conference on the 26th day of November, 2012, before Presiding Judge Diane M. Johnsen, and Judges Jon W. Thompson and Lawrence F. Winthrop. IT IS ORDERED that the Court of Appeals, in the exercise of its discretion, accepts jurisdiction of this Special action jurisdiction is appropriate. special action. Ariz. R. Spec. Act. 1(a) (special action is available when there is no other equally plain, speedy or adequate remedy by appeal). IT IS FURTHER ORDERED granting petitioner relief because the Court of Appeal s prior ruling that the attorneys fees in the underlying matter were paid is final, conclusive and not subject to reopening. At the final, time buyers the were specific relieved performance of obligation to tender performance. part of judgment their became then-present See, e.g., United California Bank v. Prudential Ins. Co., 140 Ariz. 238, 289, 681 P.2d 390, 437 (App. 1983); McFadden v. Wilder, 6 Ariz. App. 60, 63-64, 429 P.2d 694, 697-98 purchase/sale (1967) contract (before he must either first party put can sue the other on party a in default by tendering or offering to tender performance). The fees the component of the 2009 judgment was satisfied when buyers were permitted to satisfy their obligation on specific performance by depositing a reduced amount for the purchase price into escrow. A final judgment can be modified only where there are extraordinary circumstances of hardship or injustice. Panzino v. City of Phoenix, 196 Ariz. 442, 445, ¶ 6, 999 P.2d 198, 201 (2000) (internal citation and quotation marks omitted). circumstances exist here. No such Further under the law of the case doctrine, an appellate court's decision is controlling in both the lower courts and in subsequent appeals in the same case, so long as the facts and law remain substantially the same. Copper Hills Enters., Ltd. v. Ariz. Dep't of Revenue, 214 Ariz. 2 386, 390 91, ¶ 15, 153 P.3d 407, 411 12 (App. 2007). is closed preclusion. and further litigation is foreclosed The matter by issue See Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573, 716 P.2d 28, 30 (1986). For the above stated reasons, the trial court erred in reopening this matter and adding post-judgment interest on the previously satisfied attorneys fees award and that determination is vacated. IT IS FURTHER ORDERED vacating the stay entered by this court on November 1, 2012. /s/ __________________________________ JON W. THOMPSON, Judge 3

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