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OPINION CATTANI, Judge: ¶ 1 Michael Wassef, a licensed dentist, appeals the superior court’s ruling affirming the Arizona State Board of Dental Examiners (the “Board”)’s order suspending his license to practice dentistry in Arizona. Was-sef asserts that he was denied due process because he was not given a hearing before being ordered to undergo an inpatient substance abuse evaluation, and that his failure to comply with that order did not establish a basis for suspending his license. For reasons that follow, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶ 2 Wassef has a history of opioid addiction, and he participated in a monitored treatment program from 2002 through 2007. ¶ 3 In March 2014, a pharmacist contacted the Board with concerns about Wassef s prescription-writing practices. In response to the pharmacist’s report, the Board reviewed Wassefs pharmacy management profile and subpoenaed records from his employer. The Board learned that from 2008 to 2014, Was-sef had received prescriptions for controlled substances in increasing amounts. The prescriptions included hydrocodone, a controlled substance that Wassef had abused in the past. The Board also learned that Wassef had prescribed large amounts of the muscle relaxant Soma for his wife, his assistant, and his assistant’s daughter, even though they were not patients of record and even though Soma is not typically prescribed for dental patients. Over a two-year period, Wassef wrote these individuals, collectively, forty-four Soma prescriptions. ¶ 4 The Board asked Wassef to undergo a urinalysis and meet with Dr. Michael Sucher, the medical director of the Board’s monitored aftercare treatment program, for a preliminary substance abuse screening assessment, to be followed by further evaluation if deemed necessary based on the assessment. Wassef submitted to the urinalysis and tested positive for Soma and Tramadol, medi cations for which he had prescriptions. He refused, however,- to meet with Dr. Sucher. ¶ 5 On March 19, 2014, the Board determined that there was a “real and significant” risk that Wassef had relapsed in his addiction, and, pursuant to its authority under A.R.S. § 32-1207(B)(6), issued an order (“the Interim Order”) directing Wassef to obtain an inpatient substance abuse evaluation within fourteen days at one of three approved facilities that have significant experience and expertise in evaluating and treating professionals with substance abuse/addiction issues. Wassef did not comply with the Interim Order, declining to be admitted for inpatient assessment and asserting that an outpatient evaluation at an addiction treatment facility should be acceptable. The Board thus determined that emergency action was required based on public health, safety, and welfare concerns and suspended Wassefs license, stating it would lift the suspension if Wassef complied with the Interim Order. ¶ 6 The Board then filed a Complaint and Notice of Hearing alleging that Wassefs refusal to comply with the Interim Order constituted unprofessional conduct that jeopardized the health and safety of the public in violation of A.R.S. § 32-1201.01(14), and that Wassefs license should be suspended. After an evidentiary hearing, an administrative law judge (“ALJ”) ruled that the Board had failed to prove by a preponderance of the evidence that Wassef was unsafe to practice and recommended that the Board reinstate his license. ¶ 7 The Board rejected or modified several portions of the ALJ’s recommendation and ordered that Wassefs license remain suspended until he complied with the Interim Order. See A.R.S. § 41-1092.08(B) (authorizing the agency head, executive director, commission, or board to “review the [ALJ’s] decision and accept, reject or modify it”). The Board subsequently denied Wassefs request for a rehearing, and he filed a complaint for judicial review in the superior court. See A.R.S. § 12-904(A). The superior court affirmed the Board’s decision, and Wassef timely appealed. ¶ 8 This court stayed the Board’s suspension order pending disposition of this appeal. We have jurisdiction under A.R.S. § 12-913. See Svendsen v. Ariz. Dept of Transp., 234 Ariz. 528, 533, ¶ 13, 323 P.3d 1179, 1184 (App. 2014). DISCUSSION ¶ 9 Wassef argues the Board denied him due process of law by not allowing him to challenge the merits of the Interim Order or to otherwise be heard before suspending his license. He also contends the Board’s determination that he posed a danger to the health, welfare, or safety of patients and the public was not supported by substantial evidence and should be vacated. ¶ 10 Arizona law grants the Board authority to discipline a licensee for “unprofessional conduct,” which includes “[a]ny conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public.” A.R.S. §§ 32-1263(A)(l), - 1201.01(14). ¶ 11 In reviewing a judgment upholding the decision of an administrative agency, we independently review the record and will uphold the agency’s decision if it is supported by substantial evidence and is not contrary to law or arbitrary and capricious. Golob v. Ariz. Med. Bd., 217 Ariz. 505, 509, ¶ 11, 176 P.3d 703, 707 (App. 2008); see also AR.S. § 12-910(E). We review the evidence in the light most favorable to upholding the Board’s decision and will not substitute our judgment for that of the agency regarding factual questions and agency expertise, De-Groot v. Ariz. Racing Comm’n, 141 Ariz. 331, 336, 686 P.2d 1301, 1305 (App. 1984). Substantial evidence exists if the record supports the decision, even if the record would also support a different conclusion. Id, We review constitutional issues, including an alleged violation of due process, de novo, Carlson v. Ariz. State Pers. Bd., 214 Ariz. 426, 430, ¶ 13, 153 P.3d 1055, 1059 (App. 2007). I. Due Process. ¶ 12 Wassef argues the Board denied him due process by suspending his license without first granting him an opportunity to be heard. Athough “[t]he State is authorized to protect the public health and welfare by regulating those who practice a profession,” Dahnad v. Buttrick, 201 Ariz. 394, 398, ¶ 14, 36 P.3d 742, 746 (App. 2001), a licensee has a property interest in his or her license, and the State must afford due process before it can curtail that right. Comeau v. Ariz. State Bd. of Dental Exam’rs, 196 Ariz. 102, 106, ¶ 18, 993 P.2d 1066, 1070 (App. 1999); Schillerstrom v. State, 180 Ariz. 468, 471, 885 P.2d 156, 159 (App. 1994); see also AR.S. § 41-1092.11(B). Due process is not a static concept, and may vary with the setting, but generally requires “notice and an opportunity to be heard in a meaningful manner and at a meaningful time.” Gaveck v. Ariz. Bd. of Podiatry Exam’rs, 222 Ariz. 433, 437, ¶ 14, 215 P.3d 1114, 1118 (App. 2009) (citation omitted). ¶ 13 The Board was not required to hold a hearing before it entered the Interim Order. See AR.S. § 32-1207(B)(6) (granting the Board the authority to require licensees to submit to physical examinations); see also Alexander D. v. State Bd. of Dental Exam’rs, 231 Cal.App.3d 92, 96-99, 282 Cal.Rptr. 201 (1991) (holding that the board of dentistry was not required to conduct a hearing before issuing an order requiring a licensee to undergo a psychiatric examination; the order was investigatory in nature and any discipline would be the result of a separate adjudicatory hearing accompanied by due process protections); Humenansky v. Minn. Bd. of Med. Exam’rs, 526 N.W.2d 559, 566 (Minn. Ct.App.1995) (order requiring psychiatrist to undergo mental and physical examination did not implicate her property interest in her license to practice medicine, and the board was not required to afford her due process). And the Board has the authority to summarily suspend a license when it concludes, as it did in this case, that an emergency exists. See AR.S. §§ 32-1263.02(0, 41-1092.11(B). Such a suspension satisfies due process requirements if the licensee subsequently receives a prompt and adequate opportunity to be heard. Dahnad, 201 Aiz. at 399, ¶¶ 18-19, 36 P.3d at 747. ¶ 14 Wassef does not deny that he received a prompt hearing after the summary suspension, but he contends that no emergency circumstances existed to support the suspension because he had “disproved” the Board’s suspicions that he had self-prescribed medications, written inappropriate prescriptions, and/or was engaged in substance abuse. To the contrary, the Board considered information that Wassef—who had a history of opioid addiction and self-prescribing—was improperly prescribing medications to himself and to family members who were not patients, and that he refused to comply with the Board’s order that he obtain an inpatient evaluation to allow the Board to determine whether his substance abuse disorder had recurred. Under these circumstances, the Board was not required to accept Wassefs explanations, and Wassef did not disprove the Board’s suspicions. Thus, the Board had reasonable grounds to take emergency action to prevent harm to the public. ¶ 15 We also reject Wassefs contention that the allegations against him were not sufficiently serious to warrant emergency ac tion and that the Board did not make detailed factual findings about the nature of the emergency. By statute, the Board had the discretion to assess the risks posed by Was-sef, given the allegations and available information. In that regard, the Board reasonably relied on the expertise of Dr. Sucher, its addiction consultant, in evaluating Wassefs actions in response to the Board’s request for additional information and the risks associated with his continued refusal to comply. In such a situation, Arizona law requires only that the Board find that an emergency situation exists, not that it set forth a detailed description of the emergency. A.R.S. §§ 32-1263.02(C), 41-1092.11(B). In short, the Board’s actions were not arbitrary or capricious, nor were they an abuse of its discretion. See Dahnad, 201 Ariz. at 399, ¶ 20, 36 P.3d at 747. ¶ 16 Finally, we reject Wassefs argument that the Board failed to provide a written justification for its modification of the ALJ’s ruling, as required by A.R.S. § 41-1092.08(B). See Ritland v. Ariz. State Bd. of Med. Exam’rs, 213 Ariz. 187, 191, ¶¶ 13-14, 140 P.3d 970, 974 (App. 2006) (requiring the boai'd to set forth factual support when it overrules an ALJ’s credibility findings). Although the Board did not alter any of the ALJ’s credibility determinations, the Board’s four-page detailed description and explanation of its changes to the ALJ’s ruling satisfies the statutory requirement. II. Sufficiency of the Evidence. ¶ 17 Wassef contends the Board failed to show that he was unsafe to practice dentistry. We disagree. ¶ 18 The Board presented evidence at the hearing that Wassef was not safe to practice dentistry based on a confluence of uncontested factors: (1) he had a history of substance abuse, which is a chronic condition; (2) his medical records indicated that he had an ongoing back pain problem for which he had been taking prescription medications in increasing doses; (3) he was prescribing drugs in an irregular manner to persons who were not patients of record; and (4) he refused to participate in a screening assessment and did not comply with the Board’s order that he obtain a comprehensive inpatient evaluation. The Board’s expert, Dr. Sucher, opined that based on these circumstances, Wassef was not safe to practice dentistry. ¶ 19 In addition, the record contains evidence of Wassefs unreasonable efforts to avoid complying with the Interim Order. For example, when Wassef objected to the cost of the inpatient evaluation, the Board informed him that it would pay for the evaluation, but he still did not comply with the order. Rather, he maintained the Board should accept instead an outpatient evaluation he independently obtained from a local treatment facility, but which Dr. Sucher concluded was “wholly inadequate” for the Board’s purposes. Eventually, after the deadline for compliance passed and the Board summarily suspended his license, Wassef indicated he would obtain an evaluation at a facility in California, but he instead appeared unannounced at a different facility, which he then left when the clinic would not proceed with the evaluation on an outpatient basis. This evidence of Wassefs unusual behavior and continuing attempts to avoid compliance with the Interim Order further supports the Board’s determination that he posed a potential danger to his patients and the public. ¶ 20 Wassef also maintains that his failure to comply with the Interim Order cannot be the sole basis for suspending his dental license. But the Board’s suspension order was based on the totality of the circumstances: Wassefs failure to comply with the Interim Order combined with his prior history of substance abuse, irregular prescription-writing practices, and information regarding his use of prescription medications. And we reject Wassefs argument that the Board did not have grounds to consider him a danger to the public without having received complaints from his patients or co-workers. ¶ 21 Finally, Wassefs contention that testimony from Dr. Sucher and the Board’s Executive Director, Elaine Hugunin, was “contradictory at times” misstates their testimony, and in any event does not establish that the Board’s decision was improper. See DeGroot, 141 Ariz. at 336, 686 P.2d at 1306 (“If two inconsistent factual conclusions could be supported by the record, then there is substan tial evidence to support an administrative decision that elects either conclusion”) (citation omitted). The Board considered substantial evidence supporting its determination that Wassef s behavior presented a danger to the health, safety, and welfare of his patients or the public. Accordingly, the Board did not act in an arbitrary or capricious manner by finding that Wassef s unprofessional conduct justified suspending his license. CONCLUSION ¶ 22 For the foregoing reasons, we affirm the superior court’s decision. In addition, it is ordered lifting the stay previously entered by this court on January 5, 2016. . The Board asks the court to disregard those portions of Wassef’s opening brief that do not contain appropriate citations to the record and Wassef’s reference to documents he filed in the superior court that are not part of the administrative record. Because Wassef did not request an evidentiary hearing, and the superior court did not conduct one, he was not entitled to submit additional evidence, and we base our review solely on the administrative record. See Ariz. Rev. Stat. (“A.R.S.") §§ 12-904(B), -910(A), (D), (E). . Wassef had previously been monitored by Dr. Sucher as part of the aftercare treatment program, and Wassef asserted in these proceedings that Dr. Sucher's prior involvement created a conflict of interest. Wassef requested permission to meet with another evaluator, and the Board agreed to allow him to do so. But the specialist Wassef proposed declined to conduct the assessment. . Absent material revisions after the relevant date, we cite a statute's current version. , The statute defining unprofessional conduct in dentistry was renumbered and slightly modified in 2015, See A.R.S. § 32-1201.01; A.R.S. § 32-1201(21) (2014); 2015 Ariz. Sess. Laws, ch. 196, §§ 1-2 (1st Reg, Sess.). Because the 2015 revisions were not material to the issues in this case, we cite the current version throughout this decision, . The Board also alleged Wassefs actions constituted unprofessional conduct under A.R.S. § 32-1201.01(22), but removed that allegation from its final decision. . Wassef arguably waived his due process arguments by not asserting them in the administrative proceedings. See DeGroot, 141 Ariz. at 340, 686 P.2d at 1310. Nevertheless, we address these arguments.

JUSTICE BRUTINEL, opinion of the Court: ¶ 1 A jury found Robert Fischer guilty of second degree murder. But the trial court, under Arizona Rule of Criminal Procedure (“Rule”) 24.1(e)(1), determined that the verdict was contrary to the weight of the evi dence and granted a new trial. Independently reexamining the evidence, the court of appeals concluded that the trial court erred by granting a new trial. We hold that the court of appeals exceeded the proper scope of deferential appellate review by independently reweighing the evidence rather than determining if substantial evidence supported the trial judge’s ruling. Because substantial evidence supports the trial court’s determination, we affirm the order granting a new trial. I. BACKGROUND ¶ 2 Defendant Robert Fischer is an attorney and a former police officer. While visiting his family in late December 2010, Fischer, his step-daughter Belinda, and Belinda’s husband, Lee, stayed up talking and drinking. Around 10 p.m., Lee excused himself to make a phone call and check his email. He returned worried and upset and showed Fischer an email about a non-compete agreement. Belinda went to bed around 11:30 p.m., and Fischer and Lee continued drinking heavily. ¶3 Fischer testified that he awoke the next morning to a popping sound and found a man on the kitchen floor in a pool of blood. Confused and unaware of the man’s identity, he called 911, and police officers arrived shortly thereafter. Lee—the man on the floor—had a single gunshot wound to his head; there was a handgun in Lee’s right hand, and his thumb was in the trigger guard. ¶4 During his police interview, Fischer seemed confused and had difficulty keeping track of the time. Fischer admitted the gun was his but explained that he had disassembled it upon arriving at Belinda and Lee’s house. Fischer stated that he wanted to help the police figure out what had happened but he was unable to remember. ¶ 5 The police obtained a search warrant to acquire physical evidence from Fischer and Belinda. There was blood on Fischer’s left foot and on the left side of his left pajama pant leg. The police swabbed Fischer’s feet, performed a gunshot residue test, and took fingerprints and a blood sample. Crime scene specialists seized and analyzed additional evidence from the house. ¶ 6 The State charged Fischer with second degree murder and tried the case on the theory that Fischer shot Lee and then manipulated the scene to make it appear that the gunshot wound was self-inflicted. During trial, the court admitted expert testimony regarding the blood spatter, the gun and its position in Lee’s hand, the DNA and fingerprint evidence, the gunshot residue, and the likelihood of Fischer having blacked out from alcohol consumption. ¶7 Following the guilty verdict, Fischer moved for a new trial under Rule 24.1(c)(1). The trial court considered the evidence and determined: There was, quite simply, no physical evidence that the Defendant fired the gun that killed Lee. The physical evidence establishes only that the Defendant was present in a chair near where Lee was sitting at the time of [sic] the gun was fired. Det. Acosta’s opinion that the Defendant staged the scene by manipulating Lee’s body is not supported by the physical evidence, lacks credibility, and is sheer speculation. In its lengthy minute entry, the court chronicled the physical evidence supporting its conclusion that the guilty verdict was contrary to the weight of the evidence and granted the motion for a new trial. ¶ 8 The court of appeals reversed. State v. Fischer, 238 Ariz. 309, 322 ¶ 82, 360 P.3d 105, 118 (App. 2015). After independently examining the evidence, the court concluded that the jury properly weighed the evidence and its verdict was not a miscarriage of justice. Id. at 321 ¶ 76, 360 P.3d at 117. The court of appeals also concluded that the trial court abused its discretion “by making factual findings that were not supported by the record, and by failing to consider all the evidence in reaching its conclusions.” Id. at 316 ¶ 29, 360 P.3d at 112. ¶ 9 We granted review to consider the proper role of the trial court in deciding whether a verdict is contrary to the weight of the evidence, a question of statewide importance. We also consider whether the court of appeals erred in its independent examination of the evidence and conclusion that the trial court abused its discretion. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and AR.S. § 12-120.24. II. DISCUSSION A. Standard of Review ¶ 10 We review a trial court’s decision to grant a new trial for an abuse of discretion. Smith v. Moroney, 79 Ariz. 35, 38-39, 282 P.2d 470, 472 (1955). We review interpretation and application of court rules de novo. Allen v. Sanders, 240 Ariz. 569, 571 ¶ 9, 382 P.3d 784, 786 (2016). B. Motion for a New Trial ¶ 11 A court may grant a new trial if “[t]he verdict is contrary to law or to the weight of the evidence.” Ariz. R. Crim. P. 24.1(c)(1). Arizona courts use essentially the same standard in civil and criminal cases, and we therefore consider both civil and criminal case law in our analysis. Compare Ariz. R. Civ. P. 59(a)(1)(H) (authorizing the court to grant a new trial when “the verdict ... is not supported by the evidence or is contrary to law”) with Ariz. R. Crim. P. 24.1(c)(1). ¶ 12 The trial court’s authority to order a new trial when the jury verdict is contrary to the weight of the evidence is deeply rooted in our law. In 1757, Lord Mansfield wrote that “[tjrials by jury, in civil causes, could not subsist now, without a power, somewhere, to grant new trials.” Reeves v. Markle, 119 Ariz. 159, 163, 579 P.2d 1382, 1386 (1978) (quoting Bright v. Eynon, 1 Burr. 390, 393, 97 Eng. Rep. 365, 366 (1757)). The authority to grant a new trial was included in Arizona’s original territorial code, Ariz. Howell Code ch. XI § 409, 115-16 (1866) (“The court in which a trial is had upon the issue of facts, has power to grant a new trial where a verdict has been rendered against the defendant, upon his application in the following cases only: ,.. 6th. When the verdict is contrary to law or evidence.”). Over the past century, this Court has consistently recognized that unjust verdicts, while rare, can occur. As we noted in Reeves, “Due to his unique position, the trial judge has become the primary buffer against unjust verdicts. He performs an indispensable function without which our system of justice could not hold out the promise of a[ ] uniform application of the law.” 119 Ariz. at 163, 579 P.2d at 1386. ¶ 13 In 1926, this Court delineated the trial judge’s “duty” to grant a new trial: The trial courts may weigh the evidence, and, if they think injustice has been done, should grant a new trial. It is their duty to supervise the verdict of the jury and grant a new trial if the verdict in the opinion of the court is against the weight of the evidence, or if it is arbitrary and manifestly or clearly wrong, or if it appears to be the result of passion, prejudice [or] misconduct of the jury. Huntsman v. First Nat'l Bank, 29 Ariz. 674, 678, 243 P. 598, 600 (1926), The Huntsman court held, “If after a full consideration of the case the trial court was satisfied that the verdict was not supported by the evidence, and that substantial justice had not been done between the parties, it was its duty, in the exei’cise of a sound discretion, to set the verdict aside.” Id. at 579, 243 P. at 600 (emphasis added). Subsequent cases have consistently recognized the trial judge’s authority to grant a new trial. ¶ 14 The duty to grant a new trial when the verdict is against the clear weight of the evidence has been labeled the “thirteenth juror rule,” or the “ninth juror rale” in a civil case. See Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, 197-98 ¶¶ 15-16, 273 P.3d 645, 649-50 (2012). “The trial judge, so far as this duty is concerned, sits as a thirteenth juror, and he, as well as the jury, must be convinced that the weight of the evidence sustains the verdict, or it is his imperative duty to set it aside.” Brownell v. Freedman, 39 Ariz. 385, 389, 6 P.2d 1115, 1116 (1932). More recently, this Court has described the judge’s role in granting a new trial as an exercise of “broad” or “wide” discretion, rather than in terms of duty. See City of Glendale v. Bradshaw, 114 Ariz. 236, 237-38, 560 P.2d 420, 421-22 (1977). ¶ 15 Trial judges are given such broad discretion because, like the jury, they observed the trial: The trial judge has the same opportunity of seeing the witnesses, learning their interest, observing their manner of testifying, and of judging the probability of the truthfulness of their testimony as has the jury, and, by reason of his experience and training, should be better able correctly to evaluate the testimony.... If the evidence accredited by the jury is improbable or palpably untrue, he should not shirk his duty of granting a new trial. He should exercise his power to prevent injustice as well as to promote justice. Dennis v. Stukey, 37 Ariz. 299, 307, 294 P. 276, 279 (1930), overruled on other grounds by Butane Corp. v. Kirby, 66 Ariz. 272, 284, 187 P.2d 325, 333 (1947). Appellate courts, by contrast, defer to the factual findings of the jury and generally will not set aside the verdict unless no evidence supports it, even if the verdict seems unjust or the result of prejudice. See Huntsman, 29 Ariz. at 578-79, 243 P. at 599-600, Therefore, an unjust verdict that is against the weight of the evidence will stand unless the trial judge exercises the power to set it aside. Dennis, 37 Ariz. at 307, 294 P. at 279. ¶ 16 The State urges us to abandon the thirteenth juror rule and prohibit trial courts from independently reweighing the evidence or examining witness credibility. Rather, the State argues, and the court of appeals ruled, that a trial court should grant a new trial only in the extraordinary ease where it is “quite clear that the jury has reached a seriously erroneous result and it is necessary to set aside the verdict to avoid a miscarriage of justice.” Fischer, 238 Ariz. at 315 ¶ 22, 360 P.3d at 111 (internal quotation marks omitted) (quoting Cano v. Neill, 12 Ariz.App. 562, 569, 473 P.2d 487, 494 (1970)). In the State’s view, a new trial is appropriate “only where the verdict is objectively unreasonable, manifestly unfair, or so outrageous as to shock the conscience.” The State finds support for this assertion in Hutcherson v. City of Phoenix, 192 Ariz. 51, 55 ¶ 23, 961 P.2d 449, 453 (1998) (“The basic question [the trial judge] must ask is whether the jury verdict is so ‘manifestly unfair, unreasonable and outrageous as to shock the conscience.’ ”) (citation omitted). ¶ 17 As the court of appeals noted, it is “not uncommon” for the standards governing an order for a new trial and a judgment of acquittal to be confused. Fischer, 238 Ariz. at 313 ¶ 18 n.3, 360 P.3d at 109. Compare Ariz. R. Crim. P. 24.1(c)(1), with Ariz. R. Crim. P. 20. The State proposes to address that confusion by effectively eliminating the difference between the two motions. Under the existing Rule 20 standard, to decide a motion for aequittal based on insufficiency of the evidence, the trial judge must review the evidence in the “light most favorable to the state, and all reasonable inferences are to be resolved against the defendant” to decide if a reasonable person could fairly conclude the defendant is guilty beyond a reasonable doubt. State v. Clifton, 134 Ariz. 345, 348, 656 P.2d 634, 637 (App. 1982); see also State v. West, 226 Ariz. 559, 663 ¶ 18, 250 P.3d 1188, 1192 (2011) (“Thus, in ruling on a Rule 20 motion, unlike a motion for a new trial under Arizona Rule of Criminal Procedure 24.1(c)(1), a trial court may not reweigh the facts or disregard inferences that might reasonably be drawn from the evidence.”). By contrast, in deciding a motion for new trial, a trial court may weigh the evidence and make its own determination of the credibility of the witnesses. If, after full consideration of the case, the court is satisfied that the verdict was contrary to the weight of the evidence, it may set the verdict aside, even if substantial evidence supports it. Young Mines Co. v. Citizens’ St. Bank, 37 Ariz. 521, 525, 296 P. 247, 249 (1931); see Huntsman, 29 Ariz. at 579, 243 P. at 600. Under the State’s theory, a trial court, unable to weigh evidence or determine credibility, could not set the verdict aside despite its firm conviction that the verdict was unjust. ¶ 18 We reject the State’s argument that we should strictly limit the judge’s role because to do so not only undermines Rule 24.1(c)(1) but also conflates the standards for a new trial and a judgment of acquittal. Precluding the trial court from weighing the evidence and assessing the credibility of the witnesses effectively abrogates the authority vested in trial courts under Rule 24.1(c)(1) and overturns more than a century of Arizona law. We decline to impose such a limitation and disavow the language in Hutcherson to the contrary. ¶ 19 While we reject the State’s argument, we take this opportunity to clarify the trial judge’s role in granting a new trial under Rule 24.1(c)(1). We agree with the court of appeals that a trial court considering a motion for a new trial must respect the role of the jury and the integrity of the jury trial system. Cal X-Tra v. W.V.S.V. Holdings, L.L.C., 229 Ariz. 377, 403 ¶ 88, 276 P.3d 11, 37 (App. 2012). It is primarily the province of the jury to determine the credibility of witnesses and to find the facts. State v. Boggs, 218 Ariz. 325, 335 ¶ 39, 185 P.3d 111, 121 (2008) (“Determining veracity and credibility lies within the province of the jury”); Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287 ¶ 12, 9 P.3d 314, 318 (2000) (“The credibility of a witness’ testimony and the weight it should be given are issues particularly within the province of the jury.”) (internal quotation marks and citation omitted). The judge does not technically sit as a “thirteenth juror” in the sense that the judge has a vote in deciding the case, much less a vote equal to or greater than that of the jurors; but given the judge’s training, experience, and unique vantage point, the judge must have substantial latitude in overseeing the jury verdict. ¶ 20 We are mindful that a judge considering a motion for new trial did not have the benefit of participating in jury deliberations. Thus, the judge may not set aside a jury verdict simply because “if he had acted as trier of the fact, he would have reached a different result.” Cano, 12 Ariz. App. at 569, 473 P.2d at 494 (citation and internal quotation marks omitted). For this reason, we disavow our contrary characterization of the trial court’s discretion made in Peak v. Acuna, 203 Ariz. 83, 85 ¶ 9, 50 P.3d 833, 835 (2002) (suggesting that a trial court may order a new trial based on a verdict that is contrary to the weight of the evidence when “the trial judge simply disagrees with the jury’s resolution of conflicting facts”). A trial court’s discretion under Rule 24.1(c)(1) is not unlimited, nor does the court have unbridled “veto” power over a jury verdict such that the court may act as a “super juror” and overturn a verdict merely because the court personally disagrees with it. ¶ 21 The trial judge has broad discretion, however, to find the verdict inconsistent with the evidence and grant a new trial, so as to guard against arbitrary verdicts. Walsh, 229 Ariz. at 197-98 ¶¶ 15-16, 273 P.3d at 649-50. We defer to the discretion of the trial judge who tried the case and who personally observed the proceedings. The judge may weigh the evidence, make credibility determinations, and set aside the verdict and grant a new trial even if there is sufficient evidence in the record to support the verdict. Clifton, 134 Ariz. at 348-49, 656 P.2d at 637-38. We emphasize that the court does not usurp the role of the jury in granting a new trial because the court does not substitute its judgment for that of the jury; it only allows the parties a new trial before a different jury. In that regard, the judge’s role in granting a motion for new trial differs from the judge’s role in granting a motion for acquittal. When the court grants a new trial, the jury retains the ultimate decision-making authority. In directing a verdict of acquittal, the jury’s role is supplanted by the court. ¶22 We recognize the difficult task the trial court faces in striking a balance between honoring the jury’s constitutional role and ensuring that a seriously erroneous result does not stand. The purpose of Rule 24.1 is to prevent an arbitrary or unjust verdict from becoming an arbitrary or unjust judgment. Ultimately, the judge must determine if substantial justice has been done between the parties under the standard set forth in Rule 24.1(c)(1)—whether “[t]he verdict is contrary to law or to the weight of the evidence.” See also State v. McIver, 109 Ariz. 71, 72, 505 P.2d 242, 243 (1973); Smith, 79 Ariz. at 38, 282 P.2d at 472. ¶ 23 Our case law provides little additional guidance to the trial judge, and commentators have noted the difficulty of formulating a bright-line rule or generic test. “Necessarily all formulations are couched in broad and general terms that furnish no unerring litmus for a particular case.” 11 Charles Alan Wright et al., Federal Practice and Procedure § 2806, at 90-91 (3d ed. 2012). We are mindful that attempts to refine the standard “may run the significant risk of muddling more than they clarify.” Hunter v. Philip Morris USA Inc., 364 P.3d 439, 448 (Alaska 2015). But we note that in assessing whether the verdict was contrary to the weight of the evidence, the trial judge should consider all the evidence presented in the light of the judge’s experience and training. ¶ 24 The judge should assess the strength of the evidence, considering the credibility of the witnesses and conflicting testimony. 12-59 James Wm. Moore et al., Moore’s Federal Practice—Civil § 69.13 (2016). The court should consider the duration of the trial, the complexity of the issues in the case, and whether the ease involves subjects outside the ordinary knowledge of jurors, giving greater scrutiny to more difficult cases. The court should make its assessment with a keen recognition of the importance of the jury’s role; that the judge would have reached a different verdict is not enough to grant a new trial. Finally, the court should explain with particularity the reasons why the jury’s verdict is against the clear weight of the evidence. See Ariz. R. Civ. P. 59(i) (2017) (previously Rule 59(m)). ¶25 As the Alaska Supreme Court aptly said, “We commit this determination to trial courts’ sound discretion based on our trust in their position, expertise, and humility. History has indicated that this trust is well deserved.” Hunter, 364 P.3d at 448. Arizona’s trial judges are in the best position to decide motions for new trial and are uniquely well-qualified to do so. Likewise, a review of our case law reflects that there is little cause for concern about trial courts ordering new trials too frequently or without a substantial basis. Such motions are rarely granted, and when granted (or denied), are almost never reversed on appeal. C. Appellate Review ¶ 26 A different standard applies to appellate review. “We have invariably held that this court will not disturb a verdict on the ground that it is contrary to the weight of the evidence.” Brownell, 39 Ariz. at 389, 6 P.2d at 1116. When an appellate court reviews an order granting a new trial for abuse of discretion, it “look[s] to the broad scope of the trial and do[es] not attempt to reweigh the facts.” Hutcherson, 192 Ariz. at 56 ¶ 27, 961 P.2d at 454. 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. Estabrook v. J.C. Penney Co., 105 Ariz. 302, 305, 464 P.2d 325, 328 (1970). The reviewing court must “inquire whether substantial evidence exists to support the trial court’s determination.” Reeves, 119 Ariz. at 164, 579 P.2d at 1387. If such evidence exists, then the order is within the sound discretion of the trial court and should be affirmed. Id. ¶27 We have repeatedly held that an appellate court “will not disturb an order granting a new trial unless the probative force of the evidence clearly demonstrates that the trial court’s action is wrong and unjust and therefore unreasonable and a manifest abuse of discretion.” Smith, 79 Ariz. at 39, 282 P.2d at 472; see also McIver, 109 Ariz. at 72, 505 P.2d at 243 (quoting with approval Smith, 79 Ariz. at 39, 282 P.2d at 472); State v. Saenz, 88 Ariz. 154, 155, 353 P.2d 1026, 1027 (1960) (same). The question for the appellate court is whether the probative force of the evidence supports the order granting a new trial, not whether the evidence supports the jury verdict. ¶ 28 The appellate court does not sit as the “fourteenth” juror. See Baker-Thomas Lime & Cement Co. v. Ariz. Concrete Pipe Co., 1 Ariz.App. 233, 237, 401 P.2d 238, 242 (1966) (“The trial judge is a 13th juror. An Appellate Court is not a 13th juror. We do not substitute our judgment for that of the trial court.”) (citation omitted). The appellate court’s role is not to weigh the evidence. It is to determine whether, resolving every conflict in the evidence in support of the order, substantial evidence supports the trial judge’s order. A trial court ruling granting a new trial “where the evidence is equiponderant or nearly so or where there is substantial evidence to support the verdict is not error.” Smith, 79 Ariz. at 39, 282 P.2d at 472. ¶ 29 We see no reason to depart from this rule. We disavow the opinions that conflict with this appellate standard of review, such as State v. Moya, 129 Ariz, 64, 66, 628 P.2d 947, 949 (1981) (stating, in review of a trial court’s order granting a new trial, “It is the duty of this court, under the circumstances, to review all of the evidence and to determine whether the state proved beyond a reasonable doubt that the crime of murder was committed with premeditation,”), and State v. Chase, 78 Ariz. 240, 242, 278 P.2d 423, 424 (1954) (to same effect). ¶ 30 The court of appeals in this case exceeded the proper scope of review by independently reweighing the evidence. In her minute entry ordering a new trial, the trial judge exhaustively discussed the evidence presented at tidal. Although the court of appeals’ independent evaluation of the evidence led it to disagree with the trial court’s evaluation of the evidence, we are not persuaded that the trial court disregarded or misstated key evidence in granting Fischer’s motion. Rather, the tidal court focused on evidence that the court of appeals discounted, evaluated witness credibility differently, and, ultimately, drew different inferences from the evidence than did the court of appeals. ¶ 31 Considering the trial court’s broad discretionary authority to weigh the evidence as required under Rule 24.1(c)(1), we conclude that substantial evidence exists to support the trial court’s determination, Thus, unlike the court of appeals, we hold that the trial court did not abuse its discretion or clearly exceed its authority in granting a new trial. III. CONCLUSION ¶ 32 We vacate paragraphs sixteen through eighty-two of the court of appeals’ opinion and affirm the trial court’s order granting a new trial. This case is remanded to the trial court for further proceedings consistent with this opinion. . See Dennis v. Stukey, 37 Ariz. 299, 306-07, 294 P. 276, 279 (1930), overruled on other grounds by Butane Corp. v. Kirby, 66 Ariz, 272, 284, 187 P.2d 325, 333 (1947); Young Mines Co. v. Citizens’ St. Bank, 37 Ariz. 521, 525-26, 296 P. 247, 249 (1931); Brownell v. Freedman, 39 Ariz. 385, 389, 6 P.2d 1115, 1116 (1932); Richfield Oil Co. v. Estes, 55 Ariz. 81, 84, 98 P.2d 851, 852 (1940); Sadler v. Ariz. Flour Mills Co., 58 Ariz. 486, 490, 121 P.2d 412, 413-14 (1942); Ruth v. Rhodes, 66 Ariz. 129, 138-39, 185 P.2d 304, 310 (1947); Zevon v. Tennebaum, 73 Ariz. 281, 283, 240 P.2d 548, 549 (1952); Smith v. Moroney, 79 Ariz. 35, 38, 282 P.2d 470, 472 (1955); Caldwell v. Tremper, 90 Ariz. 241, 246, 367 P.2d 266, 269 (1962); State v. Ross, 97 Ariz. 51, 54, 396 P.2d 619, 621 (1964), overruled in part by Yoo Thun Lim v. Crespin, 100 Ariz. 80, 83, 411 P.2d 809, 811 (1966); State v. Thomas, 104 Ariz. 408, 411-12, 454 P.2d 153, 156-57 (1969); Cano v. Neill, 12 Ariz.App. 562, 567-71, 473 P.2d 487, 492-96 (1970); Lyle v. Boyle, 16 Ariz.App. 198, 200, 492 P.2d 447, 449 (1972).

OPINION NORRIS, Judge: ¶ 1 In 2015, Grand Canyon University (“GCU”) asked the City of Phoenix to abandon a roadway near its campus that had been dedicated to the City for the public’s use in 1926 (the “1926 Dedication”). Over the objections of Plaintiffs/Appellants Gail L. Palmer, Janice M. Palmer, and Gary S. Perkins- Warinner (the “Landowners”), the City decided to conditionally abandon the roadway. On appeal, the Landowners argue the City’s decision to conditionally abandon the roadway was contrary to the terms of the 1926 Dedication, state law, and the City Code, and, therefore, illegal. The Landowners also argue the abandonment method the City adopted—a public sale—violated state law and the City Code because the City “engineered” the sale to ensure that GCU would be the only bidder. We reject the Landowners’ arguments and affirm the superior court’s judgment in favor of the City and GCU. FACTS AND PROCEDURAL BACKGROUND ¶ 2 In 2016, GCU submitted an “abandonment application” to the City’s Planning and Development Department (“Department”) and requested the City abandon part of West Colter Street, an east-west street, and part of a street that intersected West Colter Street, North 30th Drive, a north-south street (collectively, the “roadway”), GCU owned all the property abutting the roadway except for three parcels of property abutting West Colter Street, one owned by a third party not involved in this litigation, and two neighboring parcels owned and used as rental properties by the Landowners (collectively, the “private property owners”). GCU proposed building two guard gates or booths, one on the eastern end of West Colter Street and one at the north end of North 30th Drive which would allow GCU to control access to all of the property abutting the roadway, whether owned by it or the private property owners. ¶ 3 The City received the roadway for the public’s use through a recorded dedication in 1926 when the “Homeland” subdivision was platted, The 1926 Dedication recited the owners had: caused the ... property to be surveyed, subdivided and platted as shown hereon, which said premises so subdivided and platted shall hereafter be known as HOMELAND, and that the plat as shown, hereon sets for the location, gives the number and dimensions of each lot and block and gives the name and width of roads, which said roads so shown are hereby dedicated to the use of the public. (Emphasis added). ¶ 4 In July 2016, the City’s Abandonment Hearing Officer conducted a public hearing on GCU’s abandonment application. At the hearing, an attorney representing GCU explained GCU representatives had met with the Landowners and others to discuss the requested abandonment and GCU had agreed to several “stipulations” designed to address various access concerns they had raised. Accordingly, GCU’s attorney informed the Hearing Officer, that, in addition to building the guard gates, GCU would: (1) build an “express/thru” lane so the private property owners and them renters, guests, invitees, and service providers (collectively, “related users”) could bypass the guard gates; (2) maintain at its expense the roadway’s pavement and sidewalks “commensurate with” public roadways in the City; (3) grant a permanent, unrestricted, recorded access easement to the private properties’ owners for their benefit and the benefit of their related users; and (4) not restrict pedestrians from accessing or leaving Little Canyon Trail, a City maintained trail, at West Colter Street or North 30th Drive. Although GCU’s original abandonment application had not expressly asked the City to convey title or fee ownership of the roadway to GCU, given GCU’s willingness to agree to the stipulations, GCU clearly anticipated that, if the City approved the proposed abandonment, the City would convey the roadway to it. ¶ 5 The Landowners objected to the proposed abandonment at the hearing, criticizing, among other matters, GCU’s presence in the area, GCU’s treatment of them, GCU’s students, and GCU’s failure to obtain an environmental impact statement. Despite the Landowners’ opposition, the Hearing Officer conditionally approved GCU’s abandonment application, subject to GCU’s compliance with and performance of the stipulations within 18 months. The Landowners and a third party appealed the Hearing Officer’s decision to the Phoenix City Council. ¶ 6 City officials and Department staff then met with the appealing parties and representatives of GCU and discussed the proposed abandonment and the appealing parties’ objections. Based on the discussions, the Department’s Director submitted a memorandum to the City Council recommending approval of the proposed abandonment with modified and additional stipulations. The modified and additional stipulations concerned, in part, access issues and, in part, reflected that if the City abandoned the roadway, it would do so through a public sale which, under state law and the City Code, would allow anyone, not just GCU, to buy the roadway, subject to any stipulations imposed by the City. Accordingly, the Director explained the stipulations had been modified to “correctly portray that any purchaser of the abandonment area must comply with all or their portion of the stipulations prior to taking control of’ the roadway. ¶ 7 Thus, by way of example, the modified stipulations required “[a]ny purchaser .., [to] provide the private property owners along Colter Street ... with a permanent, unrestricted, recorded access easement to their properties for the benefit of the owners and their invitees, guests and any service personnel to use the [express/thru] lane at all times.” Similarly, the modified stipulations required “any purchaser ... [to] maintain the [roadway’s] existing pavement and sidewalk improvements in a condition commensurate with public roadways in the City of Phoenix, for so long as there remains any private properties (not owned by GCU) within [ ] the abandonment boundaries.” And, the modified stipulations prohibited “[a]ny purchaser of any portion of the [roadway from restricting] movement of pedestrians utilizing Little Canyon Trail from accessing the trail at Colter Street or 80th Drive during hours of operation.” ¶ 8 Subject to the modified and additional stipulations in the Director’s memorandum (“the final stipulations”), in October 2015 the City Council unanimously, but conditionally, approved the proposed abandonment. The City Council’s approval was conditional because, as the Director explained in his memorandum, The City will ensure compliance with all stipulations and City Council will have final review and approval prior to any actual [conveyance of the roadway] to any private entity. This requested action only lays out a course for the purchasing entity to comply with prior to the City Council authorizing a conveyance of the [roadway] through a separate City Council action. ¶ 9 The Landowners then filed a verified complaint in the superior court seeking special action relief. As relevant here, in their complaint and in subsequent filings in the superior court, the Landowners argued the City’s conditional abandonment (1) violated the 1926 Dedication and state law in effect when the roadway was dedicated to the City because both required the City to maintain the roadway for the public’s use; (2) violated state law and the City Code because the roadway was still necessary for the public’s use; and (3) violated state law and the City Code because the abandonment method approved by the City—a public sale—had been “engineered” by the City to ensure GCU would be the only bidder at the sale. ¶ 10 After full briefing and extensive oral argument, the superior court dismissed the Landowners’ complaint. The court ruled the City had not proceeded or threatened to proceed “without or in excess of jurisdiction or legal authority” and the City’s decision to conditionally approve the abandonment had not been arbitrary and capricious or an abuse of discretion. See Ariz. R.P. Spec. Act. 3(b)-(c) (special action addresses whether a “defendant has proceeded or is threating to proceed in excess of jurisdiction or legal authority” or “[w]hether a determination was arbitrary and capricious or an abuse of discretion”). DISCUSSION 1. The 1926 Dedication and the City’s Authority to Abandon a Roadway Dedicated to Public Use. ¶ 11 The Landowners argue, as they did in the superior court, that the City was not entitled to conditionally abandon the roadway because it had been dedicated in 1926 “to the use of the public.” The 1926 Dedication did not, as the Landowners argue, prohibit the City from abandoning the roadway. ¶ 12 When the owners dedicated the roadway to the public’s use in 1926, the statute that governed the 1926 Dedication required a landowner who wished to subdivide property into tracts of 20 acres or less to have the property surveyed and platted and “by proper dedication, dedicate the avenues, streets, parks, plazas, public grounds and alleys to the public for their general use.” 1913 Arizona Civil Code § 6313. Section 1896 of the 1913 Civil Code provided that upon the “filing” of a map or plat, the “fee of all streets ... and other parcels of ground reserved therein to the use of the public, shall vest in such town, if incorporated, in trust, for the uses therein named and expressed.” Accordingly, under these statutes, the City became the fee owner of the roadway and, consistent with the language of the 1926 Dedication, received the roadway in trust for the public’s use. ¶ 13 But the City’s receipt of the roadway in trust for the public’s use did not mean it could not abandon it. Section 1897 of the 1913 Civil Code also authorized a city to “vacate,” that is, abandon, city streets and other public property (“[C]ities and common councils in cities shall have the [power to] lay out and establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks, parks and public grounds, and vacate the same.”). Thus, the statutes in effect in 1926 granted a city the right to receive property in fee for the public’s use and the right to vacate—or abandon—city-owned public property. ¶ 14 From the enactment of the 1913 Civil Code to the present, the Legislature has continued to grant cities the right to receive property in fee for the public’s use and the right to vacate city-owned public property. What is now Arizona Revised Statutes (“A.R.S.”) section 9-1141 (2008) and (1956), which authorizes a landowner to dedicate property for public use, existed as § 17-1818 in the 1939 Arizona Civil Code, § 3210 in the 1928 Arizona Civil Code, and, as discussed, § 5313 in the 1913 Civil Code. What is now A.R.S. § 9-254 (2008) and (1956), which vests the fee of platted property in trust for the public’s use, existed as § 16-231 in the 1939 Civil Code, § 396 in the 1928 Civil Code, and, as discussed, § 1895 in the 1913 Civil Code. And, what is now A.R.S. § 9-276(A)(l) (2008) and (1956), which empowers cities to vacate, or abandon, city-owned streets, alleys, avenues, and sidewalks, existed as § 16-601 in the 1939 Civil Code, § 408 in the 1928 Civil Code, and, as discussed, § 1897 in the 1913 Civil Code. ¶ 15 Consistent with the broad authority it granted to cities to abandon city-owned property, in 1961 the Legislature expressly authorized a municipal corporation to vacate a roadway if it determined the roadway was no longer necessary for public use. See 1961 Ariz. Sess. Laws, ch. 105, § 105 (originally codified at A.R.S. § 18-502 (1961)). Now codified at A.R.S. § 28-7202 (2013), this statute states that if “a governing body determines that a public roadway owned by the city ,.. or a portion of the roadway is not necessary for public use as a roadway, the governing body may dispose of ... the roadway....” The City Code contains virtually the same provision: “When in the discretion of the City Council a public roadway owned by the City, or a portion of such a roadway, is no longer necessary for public use as roadway, the City Council may dispose of ... the same.... ” Phoenix City Code § 31-64. ¶ 16 Thus, in 1926, when the owners dedicated the roadway to the City in trust for the public’s use, they did so subject to the City’s right to vacate city-owned property. See generally Martini v. Smith, 42 P.3d 629, 633 (Colo. 2002) (dedication of street for public use was binding on municipality under statutes in effect at the time of the dedication but street could be vacated by municipality if municipality complied with statutory requirements in effect when municipality decided to vacate the street); City of Detroit v. Judge of Recorder’s Court of City of Detroit, 253 Mich. 6, 234 N.W. 445, 447 (1931) (city acquired land by dedication; subject, at the time of the dedication, to city’s right under its charter to alter, vacate, or abolish its public places); Belgum v. City of Kimball, 163 Neb. 774, 81 N.W.2d 205, 218 (1957) (when street is dedicated to public’s use in a recorded plat, as authorized by statute, dedication is also subject to statute that allows a city to vacate streets and alleys); In re Appeal from Passage of Ordinance of the City of Altoona, 479 Pa. 252, 388 A.2d 313, 317 (Pa. 1978) (dedication does not impose upon a municipality a duty to maintain dedicated roadway in perpetuity; when purpose for which the roadway was dedicated no longer exists or the public is no longer benefited by the designated use, municipality is empowered to vacate the roadway); see also 26 C.J.S. Dedication § 88 (“The power of a municipality ... to vacate property dedicated to public use is dependent on the statute and, where a city is given such a power, dedications to it are subject to this power since the acceptance of the dedication does not constitute a waiver of its right.”) (emphasis added) (footnotes and citations omitted). ¶ 17 At its heart, the Landowners’ argument—that the 1926 Dedication and the City’s receipt of the roadway in trust pursuant to § 1896 of the 1913 Civil Code prevented the City from conditionally abandoning the roadway—is premised on the notion that a city may never abandon property dedicated to the public’s use, even if the city has determined the property is no longer needed for the public’s use. Under their argument, a city would be required to hold in perpetuity dedicated property even if the character of the neighborhood or surrounding property changed. The Arizona Supreme Court, however, all but rejected that argument in Reese v. De Mund (“Reese I”), 74 Ariz. 140, 245 P.2d 284 (1952). ¶ 18 There, a plat recorded in 1880 dedicated to the public all streets and alleys that abutted blocks of subdivided property. Id. at 141, 245 P.2d at 285. Approximately 70 years after the City of Phoenix accepted the dedication, the City decided to abandon and convey one of the alleys to a private party. Id. The plaintiff sued the private party and the City, asserting the conveyance of the alley to the private party was void because the abandonment “was not done for the public good.” Id. After noting that the City had acted in a legislative capacity in deciding to abandon the alley, the court concluded the City’s charter—which authorized the City to both accept and vacate street dedications—allowed the City to vacate the alley and thus: “[T]he action of the council was within its declared powers.” Id. at 143, 245 P.2d at 286. ¶ 19 As in Reese I, the City’s decision to conditionally abandon the roadway was within its declared powers, both under the 1913 Civil Code, current statutes, and, indeed, under the City’s current charter and City Code. See Charter of the City of Phoenix, Ch. IV, section 49 (2016) (City may “accept dedications of streets” and “vacate such dedications”); Phoenix City Code § 31-64 (City may vacate a roadway if that roadway is no longer necessary for public use). ¶ 20 The Landowners rely on several out-of-state cases in arguing the City was bai’red from conditionally abandoning the roadway because the roadway had been dedicated to the public’s use. The cases cited by the Landowners recognize that, in general, a governmental entity holds dedicated property in trust for the public to be used for the purposes specified in the dedication. Arizona courts have also acknowledged that general rule. Allied Am. Im. Co. v. Pettit, 66 Ariz. 283, 290, 179 P.2d 437, 441 (1947); City of Sierra Vista v. Cochise Enters., Inc., 144 Ariz. 376, 379, 697 P.2d 1126, 1129 (App. 1984). But none of these authorities addressed whether a governmental entity may, pursuant to statutory authorization, abandon that property if it determines the property is no longer needed for the public’s use, ¶21 Finally, if we were to accept the Landowners’ argument, AR.S. § 28-7202, see supra ¶15, would become meaningless as a municipal corporation would never be able to abandon a roadway that had originally been dedicated to public use. See Carbajal v. Indus. Comm’n, 228 Ariz, 1, 3, ¶ 10, 219 P.3d 211, 213 (2009) (citing Ariz. Dep't of Revenue v. Action Marine, Inc,, 218 Ariz, 141, 143, ¶ 10, 181 P.3d 188, 190 (2008)) (appellate courts should not interpret statutes such that statutory words or phrases are meaningless, unnecessary, or duplicative) (quotation omitted). ¶ 22 In short, under Arizona law, the City was not precluded from conditionally abandoning the roadway even though, pursuant to the 1926 Dedication, the City received the roadway in trust for the public’s use. The owners made the 1926 Dedication subject to the City’s right to abandon city-owned property—a right, we underscore, that exists to this day. II. The Landowners May Not Challenge the City’s Legislative Decision to Abandon the Roadway without Special Damages. ¶ 23 The Landowners argue the City was not entitled to conditionally abandon the roadway under AR.S. § 28-7202 and the City Code because the roadway is still necessary for public use. In making this argument, the Landowners point to several of the final stipulations that, for example, require the purchaser of the roadway to grant the private property owners along West Colter Street an access easement and prohibit the purchaser from taking steps that would limit the public’s access to Little Canyon Trail. See supra ¶7. As a matter of law, however, the Landowners are not entitled to challenge the City’s legislative decision to conditionally abandon the roadway because they did not allege or otherwise present any evidence that the conditional abandonment had caused or would cause them special damages, ¶ 24 In Reese I and in Reese v. De Mund (“Reese IF), 76 Ariz. 66, 261 P.2d 887 (1962), the Arizona Supreme Court addressed whether a property owner could challenge a municipal corporation’s legislative decision to abandon dedicated property. A discussed, there, the City decided to vacate and abandon property it had received through a dedication. See supra ¶18. Recognizing that in deciding to vacate and abandon the property the City had acted in a legislative capacity, Reese I, 74 Ariz. at 142-43, 245 P.2d at 285-86, the court explained it could not “question the wisdom or discretion or advisability of [the City’s] action except for fraud or other illegality or absence of jurisdiction to abandon” unless the property owner could show special damages from the abandonment. The court stated: “[I]n the absence of absolute illegality a property owner may not complain of the act of a municipality in abandoning a street unless he shows some special damage resulting to him from such action.” Id. at 143, 245 P.2d at 286; see also Reese II, 75 Ariz. at 67, 251 P.2d at 887 (affirming superior court’s dismissal; damages alleged were “not different in either degree or kind from those suffered by the public, generally, and can constitute no basis for the cause of action claimed”). ¶ 25 Here, the record before us contains no evidence the Landowners have suffered or will suffer any special damages. ¶ 26 The Landowners argue, nevertheless, that GCU waived the special damages requirement because it did not raise the requirement in a timely manner in the superior court. GCU did not, however, waive the issue. “[A] party must timely present his legal theories to the trial court so as to give the trial court an opportunity to rule properly.” Payne v. Payne, 12 Ariz.App. 434, 435, 471 P.2d 319, 320 (App. 1970) (citations omitted). Counsel for GCU timely raised the special damages requirement in the superior court during oral argument, and the court and the parties extensively discussed the requirement and Reese I during the argument. Further, during the argument, counsel for the Landowners acknowledged that the “record below”—a reference to the administrative record presented to the superior court— did not contain any testimony from the Landowners that the conditional abandonment would have an adverse impact on their “properties as rentals.” ¶ 27 Under these circumstances, the Landowners were not in a position to “question the wisdom or discretion or advisability” of the City’s decision to conditionally abandon the roadway. Reese I, 74 Ariz. at 142, 245 P.2d at 285. ¶ 28 Finally, to the extent the Landowners are arguing the conditional abandonment is illegal because the roadway is still necessary for the public’s use, see supra ¶23, this argument is, at its core, nothing more than a challenge to the City’s legislative decision making. Reese I recognized that a municipal corporation acts in its legislative capacity when it decides to abandon a roadway, and a property owner who fails to present evidence of special damages cannot challenge that action except for fraud, other illegality, or the absence of jurisdiction to abandon. 74 Ariz. at 142, 245 P.2d at 285. Here, the Landowners made no showing they fell within any of these exceptions to the special damages requirement. III. The Validity of the Conditional Abandonment Under A.R.S. § 28-7204 and Phoenix City Code Provision § 31-64. ¶ 29 The Landowners argue the conditional abandonment violates state law, A.R.S. § 28-7204 (2013), and the City Code, § 31-64(b), because the abandonment method approved by the City—a public sale—was engineered to ensure that GCU would be the only bidder at the sale. As they see the situation, through the final stipulations, the City and Grand Canyon have engineered an auction in which there will be only one bidder—Grand Canyon. If someone other than Grand Canyon buys the property, that person has to agree, at its own expense, to do every single thing Grand Canyon wants done to the property.... One does not have to go out on much of a limb to predict that if this “sale” does go forward, there will be only one bid-—Grand Canyon’s. Although the Landowners have, in convincing fashion, argued the final stipulations will discourage anyone other than GCU from purchasing the roadway, neither AR.S. § 28-7204 nor the corresponding City Code provision, § 31—64(b), restrict or limit the stipulations a city may impose when exercising its legislative authority to abandon a roadway. ¶ 30 After a municipal corporation decides a roadway is no longer necessary for public use, it may abandon the roadway by conveying the roadway to an abutting landowner, see A.R.S. § 28-7205 (2013) and City Code § 31—64(a), or, if the roadway is in a planned development, by conveying the roadway to a planned development owners association, see A.R.S. § 28-7206 (2013) and City Code § 31-64(d), or, as discussed, to the successful purchaser at the public sale under A.R.S. § 28-7204 and City Code § 31-64(b). ¶ 31 When the City elects to proceed by sale, AR.S. § 28-7204 and the corresponding City Code provision require it to provide notice in advance of the date of the sale to the public and abutting owners. The statute and corresponding City Code provision require that the notice describe the roadway or portion of the roadway to be sold, refer to the statute and code provision, and “[s]tate that a person may submit purchase offers and that abutting owners have preference rights pursuant to this article.” AR.S. § 28-7204(C). ¶ 32 On its face, neither A.R.S. § 28-7204 nor the corresponding City Code provision mandate the substance or content of any stipulation the City may impose on the purchaser of the roadway. The statute and corresponding City Code provision concern notice—notice of the sale to the public and the abutting owners and the content of the notice. The Landowners’ argument that the final stipulations violate A.R.S. § 28-7204 and the corresponding City Code provision requires us to read into those provisions requirements that are not otherwise within them and to expand those provisions to matters that simply do not fall within the statutory and code language. We cannot do that. Cicoria v. Cole, 222 Ariz. 428, 431, ¶ 15, 215 P.3d 402, 405 (App. 2009) (court “will not read into a statute something that is not within the manifest intent of the legislature as indicated by the statute itself’ and will not extend a statute to matters that do not fall within its express provisions) (citation omitted). CONCLUSION ¶ 33 We affirm the superior court’s judgment dismissing the Landowners’ complaint against GCU and the City. We deny GCU’s request for fees on appeal fees pursuant to A.R.S. § 12-349 (Supp. 2016), which authorizes a court to assess fees as a sanction. Although we have affirmed the superior court’s judgment dismissing the Landowners’ complaint, their appeal was not frivolous. As the prevailing parties on appeal, we award GCU and the City costs on appeal as authorized by law contingent upon them compliance with Arizona Rule of Civil Appellate Procedure 21. . The third party did not oppose abandonment of the roadway. . Because the dispositive issues in this appeal present issues of law, our review is de novo. Nat’l Collegiate Student Loan Trust 2007-2 v. Rand, 241 Ariz. 169, 171, ¶ 7, 384 P.3d 1249, 1251 (App. 2016) (citation omitted). . The Landowners argued in the superior court that the City did not own fee title to the roadway but instead held only an easement for use of the roadway because the 1926 Dedication had been a common law and not a statutory dedication. See generally Pleak v. Entrada Prop. Owners Ass’n, 207 Ariz. 418, 421, ¶ 8, 87 P.3d 831, 834 (2004) (under common law, landowner may dedicate land for a proper public use; effect of common law dedication is that the public acquires an easement to use the property for the specified purpose while the fee remains with the dedicator); Allied Am. Inv. Co. v. Pettit, 65 Ariz. 283, 289-90, 179 P.2d 437, 440-41, 179 P.2d 437 (1947) (when, pursuant to statute, landowner records plat showing streets, alleys, parks, and other property reserved for the public’s use, fee vests in town, if incorporated). Based on this distinction, the Landowners argued the City could not abandon the roadway because the City did not own it. The superior court ruled the 1926 Dedication was a statutory dedication, and the Landowners have not challenged that ruling on appeal. .The parties have agreed that the 1913 Civil Code governs the legal effect of the 1926 Dedication. The parties have been less than clear, however, whether the 1913 Civil Code or the statutes in effect when the City approved the conditional abandonment control the validity of the conditional abandonment. We do not need to decide which statutory scheme controls as the dedication and abandonment statutes have remained the same since 1913. See infra ¶14. . A roadway "includes all or part of a platted designated public street, highway, alley, lane, parkway, avenue, road, sidewalk or other public way...." A.R.S. § 28-7201(4) (2013). . City Council of Augusta v. Newsome, 211 Ga. 899, 89 S.E.2d 485 (1955); Schien v. City of Virden, 5 Ill.2d 494, 126 N.E.2d 201 (1955); 2000 Baum Family Trust v. Babel, 488 Mich. 136, 793 N.W.2d 633, 637-40 (2010); Ruggieri v. City of E. Providence, 593 A.2d 55 (R.I. 1991); Roeder Co. v. Burlington N., Inc., 105 Wash.2d 269, 714 P.2d 1170 (1986). . After the Landowners acknowledged the record contained no evidence the conditional abandonment would have an adverse impact on their "properties as rentals,” the Landowners told the superior court they could "call” Appellant Palmer "if that would be helpful to the court.” Citing Robertson v. Superior Court, 136 Ariz. 440, 442, 666 P.2d 540, 542 (App. 1983) (in special action filed in the superior court, that court is limited to reviewing the administrative record), GCU objected to Palmer testifying, asserting the superior court was limited to reviewing the record made before the City, as the Landowners had filed a petition requesting special action relief. The superior court did not rule on GCU's objection to Palmer's testimony as the Landowners then acknowledged that "the crux” of their case was that the City had acted illegally. At that point, the Landowners did not reiterate their offer to present testimony regarding special damages, nor did they make any offer of proof.

OPINION THUMMA Judge: ¶ 1 This appeal turns on whether an award of attorneys’ fees under Adzona Revised Statutes (AR.S.) section 12-348.01 (2017) is subject to the $10,000 cap in A.R.S. § 12- 348(E)(4). Because that cap does not apply to such an award, the fee award is vacated and this matter is remanded for further proceedings consistent with this opinion. FACTS AND PROCEDURAL HISTORY ¶ 2 This matter began when appellee Mohave County filed objections with appellant Arizona Department of Water Resources (ADWR) to the transfer of certain water rights. Mohave County challenged ADWR’s denial of those objections in court. In the end, the Arizona Supreme Court found ADWR properly denied Mohave County’s objections. Ariz. Dep’t of Water Res. v. McClennen, 238 Ariz. 371, 372 ¶ 2, 360 P.3d 1023, 1024 (2016). The court awarded ADWR attorneys’ fees pursuant to A.R.S. § 12-348.01, “but remand[ed] the case to the superior court for a determination of the amount of the award.” Id. at 377 ¶ 35, 360 P.3d at 1029. ¶ 3 On remand, ADWR requested approximately $135,000 in fees. Mohave County opposed the request, arguing AR.S. § 12-348(E)(4) capped any award at $10,000. Tacitly accepting Mohave County’s argument, the superior court awarded ADWR “attorneys’ fees in the amount of $10,000.00.” ADWR’s timely appeal followed. DISCUSSION ¶ 4 This court reviews de novo the interpretation of statutes. See Pima Cty. v. Pima Cty. Law Enf't Merit Sys. Council, 211 Ariz. 224, 227 ¶ 13, 119 P.3d 1027, 1030 (2005). The fee award to ADWR is made pursuant to AR.S. § 12-348.01, which provides that “[njotwithstanding [AR.S.] section 12-348,” if a county “files a lawsuit against” a state agency, “the court shall award reasonable attorney fees to the successful party in the action.” A.R.S. § 12-348.01. Mohave County argues any fee award to ADWR is capped by AR.S. § 12-348(E)(4), which provides that “an award of fees against a city, town or county as provided in this section shall not exceed ten thousand dollars.” Focusing on the text of A.R.S. § 12-348.01, the text of AR.S. § 12-348(E)(4) and ease law construing the two statutes, Mohave County’s argument is not well taken. ¶ 5 First, ADWR was awarded fees pursuant to A.R.S. § 12-348.01. Ariz. Dep’t. of Water Res., 238 Ariz. at 377 ¶ 35, 360 P.3d at 1029. Section 12-348.01 contains no cap limiting a fee award. Nor does the phrase “Mot-withstanding section 12-348” used in A.R.S. § 12-348.01 import such a cap. To the contrary, “ ‘[notwithstanding* means ‘[i]n spite of,’ ” and the use of that term shows A.R.S. § 12-348.01 is “a self-contained article” dealing with the issue. Wilshire Ins. Co. v. The Home Ins. Co., 179 Ariz. 602, 604, 880 P.2d 1148 (App. 1994) (citation omitted); see also City of Phx. v. Glenayre Elecs., Inc., 242 Ariz. 139, 144, 393 P.3d 919, 924 (2017) (noting Legislature “has often used language such as ‘notwithstanding any other statute’ ... to indicate that a particular provision will trump any conflicting statutes”) (citations omitted). Thus, the use of “Mothwithstand-ing section 12-348” in A.R.S. § 12-348.01 shows the fee award here is not subject to the $10,000 cap in A.R.S. § 12-348(E)(4). ¶ 6 Second, the $10,000 cap in A.R.S. § 12-348(E)(4) is limited to “an award of fees ... as provided in this section” (i.e., A.R.S. § 12-348), But fees were awarded to ADWR pursuant to A.R.S. § 12-848.01, not A.R.S, § 12-348. Accordingly, this express language in A.R.S. § 12-348(E)(4) (limiting the cap to fees awarded pursuant to A.R.S. § 12-348), and the fact that the fee award to ADWR was pursuant to AR.S. § 12-348.01, means the $10,000 cap in A.R.S. § 12-348 does not apply here. ¶7 Third, focusing on the “[n]ot-withstanding section 12-348” clause in A.R.S. § 12-348.01, ease law runs counter to the argument Mohave County presses here. Addressing a somewhat different argument, City of Tempe v. State affirmed an award of “attorneys’ fees in the amount of $108,090 pursuant to AR.S. § 12-348.01,” negating Mohave County’s assertion that “the fee award cap found in” AR.S. § 12-348(E)(4) applies. 237 Ariz. 360, 366 ¶¶ 25, 27 n.8, 851 P.3d 367 (App. 2015). Although Mohave County argues City of Tempe should be read differently or overruled, it provides no persuasive argument for doing so, particularly given the applicable statutory language. ¶8 For these reasons, the superior court erred in concluding that the $10,000 cap in A.R.S. § 12-348(E)(4) applies to an award of attorneys’ fees made pursuant to A.R.S. § 12-348.01. Given the substantial discretion vested in the superior court in awarding fees, and because the Arizona Supreme Court x’emanded the fee issue to the superior court, that court should be afforded an opportunity to address fees using the correct legal standard. CONCLUSION ¶9 The superior court’s award of attorneys’ fees is vacated and this matter is remanded for further proceedings consistent with this opinion. As the successful party on appeal, ADWR is awarded its reasonable attorneys’ fees incurred on appeal pursuant to A.R.S. § 12-348.01, as well as its taxable costs on appeal, contingent upon its compliance with Arizona Rule of Civil Appellate Procedure 21. . Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. . As Mohave County concedes, "A.R.S. § 12-348 mandates fees to private individuals in certain suits against government entities,” meaning it is unclear whether A.R.S. § 12-348 could authorize a fee award in this case. Because the Arizona Supreme Court awarded ADWR fees pursuant to A.R.S. § 12-348.01, this court need not address whether fees could have been awarded under A.R.S. § 12-348. . It does not advance ADWR's argument to point out that Mohave County argued a contraiy position earlier in this litigation. This court through its analysis, not a party through its conduct, resolves issues of statutory construction.

OPINION McMURDIE, Judge: ¶ 1 Marjan H. Nia (“Mother”) appeals from a superior court order modifying Ai H. Nia’s (“Father”) child support obligation, By affirming the child support order, we hold that (1) once the superior court determines there is a substantial and continuing change in circumstances, the court must apply the Arizona Child Support Guidelines, Arizona Revised Statutes (“A.R.S.”) section 25-320 app. §§ 20,24 (2015) (“Guidelines”), and then decide whether to deviate from the amount calculated pursuant to the Guidelines; (2) there is not a presumption for deviation based on a previously deviated order; (3) if the court finds that the application of the Guidelines would be inappropriate or unjust, it must make findings as to all relevant factors, including those set forth in AR.S. § 25-320(D); and (4) to deviate from the amount calculated pursuant to the Guidelines, the court must determine both that the deviation is appropriate and that it is in the best interests of the child. FACTS AND PROCEDURAL BACKGROUND ¶ 2 Mother and Father have 17-year-old triplets in common. The parties divorced in 2009. In a consent decree, Mother and Fa ther agreed to joint legal decision-making and equal parenting time. They further stipulated to have Father pay child support in the amount of $3830 per month, an upwardly deviated child support amount. In 2012, Father filed a petition to modify child support and, pursuant to the parties’ stipulation, the court modified Father’s child support to $3500, instead of the $1100 per the Guidelines (“2012 Order”). The Child Support Worksheet attached to the 2012 Order showed Father’s gross monthly income at $54,852 and Mother’s at $13,694. ¶ 3 On June 10, 2015, Father filed a Petition to Modify Child Support requesting his obligation be reduced to $406.94 per month as calculated per the Guidelines. Based on the evidence presented at a hearing, the superior court found Father’s income was $32,783 per month and Mother’s was $22,489 per month. Both parents testified regarding their expenses, the Children’s lifestyle during the parents’ marriage, the Children’s extracurricular activities, health insurance payments, and other needs. ¶ 4 Mother requested that her expert witness on finances be present in the courtroom during Father’s testimony. Father objected, and the superior court denied her request. ¶ 5 After the hearing, the superior court concluded Father had shown a substantial and continuing change in circumstances warranting a review of the child support order. The court found, per the Guidelines, that Father was obligated to pay $623.84 per month in child support. The court determined a deviation from the Guidelines was not appropriate, and ordered Father to pay the guideline amount starting October 1, 2015. Father subsequently filed a Motion to Correct Mistake arguing the order should be effective from the first of the month following the date of service of his petition to modify. The court issued an amended final order with the child support modification effective on July 1, 2015. Mother timely appealed and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) and (2). DISCUSSION ¶ 6 Mother argues the superior court erred by (1) finding substantial and continuing circumstances existed justifying a modification of the 2012 Order; (2) applying the child support Guidelines without considering the parties’ previous deviation; (3) determining Mother had the burden to prove an upward deviation was in the Children’s best interests; (4) applying the child support modification retroactively without ordering that Mother be reimbursed for expenses paid pursuant to the 2012 Order; and (5) excluding Mother’s expert witness from the courtroom during Father’s testimony. ¶7 “The decision to modify an award of child support rests within the sound discretion of the trial court and, absent an abuse of that discretion, will not be disturbed on appeal.” Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108 (1999). “We will accept the court’s findings of fact unless they are clearly erroneous, but we draw our own legal conclusions from facts found or implied in the judgment.” Nash v. Nash, 232 Ariz. 473, 476, ¶ 5, 307 P.3d 40 (App. 2013). “[W]e will uphold the award unless it is ‘devoid of competent evidence,’ ” Id. at 478, ¶ 16, 307 P.3d 40 (quoting Jenkins v. Jenkins, 215 Ariz. 35, 37, ¶ 8, 156 P.3d 1140 (App. 2007)), and for any reason supported by the record. Watson v. Apache County, 218 Ariz. 512, 517, ¶ 23, 189 P.3d 1085 (App. 2008). We interpret the Guidelines de novo. Hetherington v. Hetherington, 220 Ariz. 16, 21, ¶ 21, 202 P.3d 481 (App. 2008). A. The Child Support Modification was Based on a Substantial and Continuing Change in Circumstances. ¶8 Mother contends the superior court erroneously found a substantial and continuing change in circumstances existed to justify modification of the child support paid by Father, and failed “to consider the best interests of the minor children in determining a change in circumstances.” ¶9 A child support order can be modified “only on a showing of changed circumstances that are substantial and continuing.” A.R.S. § 25-327(A); Guidelines § 24(A) (“[E]ither parent ... may ask the court to modify a child support order upon a showing of a substantial and continuing change of circumstances”). Whether such a change occurred is a question of fact. Schroeder v. Schroeder, 161 Ariz. 316, 323, 778 P.2d 1212 (1989). The superior court retains “the sound discretion” to determine “whether changed circumstances exist to warrant modification of an award,” Pearson v. Pearson, 190 Ariz. 231, 233, 946 P.2d 1291 (App. 1997), and the “Guidelines do not replace the exercise of trial court discretion; they focus it.” Id. at 234, 946 P.2d 1291. In exercising its discretion, the superior court shall “consider the nature of the changes and the reasons for the changes.” Little, 193 Ariz. at 523, ¶ 14, 975 P.2d 108 (quoting In re Marriage of Clyatt, 267 Mont. 119, 882 P.2d 503, 505 (1994)). ¶ 10 In this case, the superior court considered several circumstances appropriate to modify the 2012 Order, including that Father’s income had decreased while Mother’s had increased. The evidence supports the superior court’s determination that there was a substantial and continuing change in circumstances. 1. Father’s decreased income. ¶ 11 Mother contends the change in Father’s income is not substantial and continuing because Father’s income remained substantially above the $20,000 a month cap in the Guidelines; Father decreased his working hours voluntarily; and Father’s actual income would be higher than reported if the court were to properly account for Father’s personal expenditures covered by his business. ¶ 12 “[A] court reasonably may consider evidence of income prior to the modification petition to assist in determining the individual’s current income and whether it has ‘substantially’ changed since the existing child support award was set.” Pearson, 190 Ariz. at 236, 946 P.2d 1291. Evidence regarding current or reasonably projected income, and of recent years’ income may assist the court in determining whether an increase or decrease in income is “continuing.” Id. ¶ 13 Father testified, and his tax returns demonstrated, his annual income decreased from $441,636 in 2013 to $382,383 in 2014. Father explained that the decrease was due to fewer patients visiting his dental practice. The record supported the court’s finding that Father’s change in income was substantial and continuing, even without Father’s recent voluntary reduction in working hours due to health concerns. ¶ 14 Mother asserts the court erred by concluding that Father’s personal expenses paid by his business were de minimus and not counting the expenses as income. The court considered the evidence presented and resolved the factual disputes presented by the parties. Father testified the business reimbursed him for such expenses as uniforms, gas for a company vehicle, food for networking and other business purposes, and general office supplies. Father further testified he employed an accountant and bookkeeper to help him make appropriate determinations regarding business expenses. The court considered the issue of whether the benefits Father had received were “significant and reduced] personal living expenses,” Guidelines § 5(D), and determined Father had not “sheltered” his income. We defer to the superior court’s “determination of wit nesses’ credibility and the weight to give conflicting evidence.” Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13, 972 P.2d 676 (App. 1998). 2. Mother’s increased income. ¶ 16 In finding modification of the 2012 Order appropriate, the court also considered changes in Mother’s annual income, which increased from $241,421 in 2013 to $271,457 in 2014. Mother also reported $225,200 for the first eight months of 2015. The income gap of $41,158 between Father’s and Mother’s gross monthly income in the 2012 Order shrank to $10,294 in 2015. Mother did not dispute her income increased during this period. The reduction of the income gap between the parents further supported the court’s finding of substantial and continuing change. ¶ 16 We hold the court did not abuse its discretion by finding a substantial and continuing change warranting modification of Father’s child support payments. In exercising its discretion, the court properly considered “the nature of the changes and the reasons for the changes.” Little, 193 Ariz. at 523, ¶ 14, 975 P.2d 108. B. The Superior Court Appropriately Applied the Child Support Guidelines after Finding a Substantial and Continuing Change in Circumstances. ¶ 17 Mother next argues the court erred by ordering Father to pay an amount based on the Guidelines because “the evidence overwhelmingly demonstrated a deviation was appropriate and just.” Mother also contends the court erred by failing to consider its findings underlying the 2012 Order, which adopted the stipulated upward deviation. ¶ 18 Under AR.S. § 25-320(A), parents may be ordered to “pay an amount reasonable and necessary for support” of their children. The Guidelines “establish a standard of support for children consistent with the reasonable needs of children.” Guidelines § 1(A). ¶ 19 Once a court determines that there are substantial and continuing circumstances warranting a child support modification, the court determines the amount of child support pursuant to the Guidelines. The Guidelines dictate that in every case “the amount resulting from application of these guidelines shall be the amount of child support ordered.” Guidelines § 3. If the amount calculated under the Guidelines appears adequate under the circumstances, the superior court does not need to consider a deviation allowed by the Guidelines. See Pearson, 190 Ariz. at 234, 946 P.2d 1291 (A.R.S. § 25-320 requires the superior court to follow the Guidelines and consider factors of A.R.S. § 25-320(D) only if it intends to deviate from the Guidelines). ¶ 20 If, however, the case presents circumstances where it appears to the court that the “application of the guidelines would be inappropriate or unjust,” Guidelines §§ 3, 20, the court is then required to make findings as to “all relevant factors, including those set forth” in § 25-320(D). Pearson, 190 Ariz. at 234, 946 P.2d 1291. “[T]he court may deviate from the Guidelines only if, among other criteria, ‘Application of the guidelines [is] inappropriate or unjust in a particular case’ and ‘[deviation is in the best interest of the child.’ ” Id. (emphasis added) (quoting A.R.S. § 25-320(A) (1997)); AR.S. § 25-320(D); see also Guidelines § 20(A). ¶ 21 Although Mother contends the court failed to apply the § 25-320(D) factors, the court considered all relevant factors and made findings of fact. See Pearson, 190 Ariz. at 234, 946 P.2d 1291. The court found, inter alia, that the amount calculated pursuant to the Guidelines adequately provided for the Children’s reasonable needs. See AR.S. § 25-320(D)(l) (“The financial resources and needs of the child.”). The court found the income of each parent to be significant and substantially similar. See § 26—320(D) (2) (“The financial resources and needs of the custodial parent.”); see also Guidelines § 20 (“In cases with significant disparity of income between the custodial and noncustodial parent, a deviation may be appropriate.”). The court concluded “each party would be able to meet all their living expenses quite comfortably without any assistance from the other party.” ¶ 22 The court further concluded the Children “enjoy a very comfortable lifestyle .., that will continue unabated” with Father’s payments based on the Guidelines. See § 25-320(D)(3) (“The standard of living the child would have enjoyed if the child lived in an intact home with both parents to the extent it is economically feasible considering the resources of each parent and each parent’s need to maintain a home and to provide support for the child when the child is with that parent.”); see also Nash, 232 Ariz. at 480, ¶ 27, 307 P.3d 40 (“[A] child’s share in the good fortune of his or her parents must be subject to the limitation that the award be ‘consistent with an appropriate lifestyle.’”) (quoting Miller v. Schou, 616 So.2d 436, 439 (Fla. 1993)). ¶ 23 The court found “no evidence of any special needs of the [Children], no extraordinary education or any extraordinary medical expenses.” See § 25-32Q(D)(4) (“The physical and emotional condition of the child, and the child’s educational needs.”). The court ordered that Mother provide medical insurance, and that medical, dental and orthodontia expenses not covered by an insurance be paid 59% by Father and 41% by Mother. See § 25-320(D)(6) (“The medical support plan for the child.”). Mother conceded the seventh factor was not relevant. See § 25-320(D)(7) (“Excessive or abnormal expenditures, destruction, concealment, or fraudulent disposition of ... property held in common.”). Lastly, the court found the Children spend the same amount of time with each parent, with Father incurring the same type of marginal expenses as Mother. See § 25-320(D)(8) (“The duration of parenting time and related expenses.”). ¶ 24 In this case, the court concluded the application of the Guidelines was appropriate and calculated Father’s child support obligation to be $623.84 a month. Mother does not dispute the amount is a correct calculation per the Guidelines. Mother, however, contends an upward deviation from the Guidelines was appropriate because it was previously ordered by the court pursuant to the parties’ agreement. We reject Mother’s argument that there is a presumption for a deviation if it has been previously imposed. ¶ 25 The Guidelines provide “[t]he court may deviate from the guidelines based upon an agreement of the parties only if all of the following criteria are met: ... (4) The court complies with the requirements of Section 20.A.” Guidelines § 20(B)(4) (emphasis added). Section 20(A) requires the court to consider whether “[a]pplication of the guidelines is inappropriate or unjust in the particular case.” Guidelines § 20(A)(1). We hold that once a court finds there has been a significant and continuing change in circumstances from a previous child support order, the court must review the parties’ situation anew; no presumption from a previous order exists. ¶ 26 Mother argues the court failed to make specific findings of fact regarding why a deviation was not in the best interests of the Children. For the reasons stated supra in ¶¶ 20-21, the superior court was only required to make express findings if it determined that a deviation was in the best interests of the Children. See Guidelines §§ 20, 24(A)(2); AR.S. §§ 25-327(A), -603(E). Furthermore, Mother could have asked the trial court to make findings of facts and conclusions of law regarding the sought-after deviation pursuant to Arizona Rule of Family Law Procedure 82. She did not do so, and has thus waived the argument on appeal that the superior court was obligated to explain why a deviation was not warranted. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657 (1994) (“Because a trial court and opposing counsel should be afforded the opportunity to correct any asserted defects before error may be raised on appeal ... errors not raised in the trial court cannot be raised on appeal.”). C. Mother Had the Burden to Prove a Deviation from the Guidelines was Appropriate. ¶ 27 Mother further argues the superior court erred by finding she had the burden of proof to show an upward deviation from the Guidelines was in the Children’s best interests. Instead, Mother argues, the burden of proof remained with Father because he filed the petition for modification. ¶ 28 “The Guidelines provide that a parent seeking more than the presumptive child-support amount derived from the Guidelines and the Schedule ‘shall bear the burden of proof to establish that a higher amount is in the best interests of the children.’” Nash, 232 Ariz. at 478, ¶ 16, 307 P.3d 40 (quoting Guidelines § 8). Because Mother sought a deviation from the Guidelines, she had the burden of proof. See Guidelines § 8 (“The party seeking a sum greater than this presumptive amount shall bear the burden of proof to establish that a higher amount is in the best interests of the children....”). ¶ 29 To support her argument, Mother relies on an opinion in which we determined that the party “seeking modification has the burden of establishing changed circumstances with competent evidence.” Jenkins v. Jenkins, 216 Ariz. 35, 39, ¶ 16, 156 P.3d 1140 (App. 2007) (emphasis added). The superior court properly held Father to his burden to show changed circumstances, Jenkins does not support Mother’s argument that she did not have the burden to establish that a deviation was appropriate after Father carried his burden of proving a significant and continuing change in circumstances. D. The Superior Court Appropriately Determined the Start of the Child Support Modification to Begin the First of the Month After Notice of the Petition to Modify. ¶ 30 Mother further argues the trial court abused its discretion by modifying child support effective July 1, 2015, without compensating Mother for the expenses she had already incurred on behalf of the Children under the 2012 Order. Mother acknowledges that the court has such discretion in general, but she asserts that the court abused it in this case considering the parties’ previous agreements. ¶31 Pursuant to A.R.S. § 25-503(E), an order of child support “Modification ... [is] effective on the first day of the month following notice of the petition for modification.” Father served his petition for modification by personal service on June 11, 2015. The superior court ordered the child support modification to begin on July 1, 2015. We find no error. A.R.S. § 25-503(E). ¶ 32 The court could have made an equitable adjustment under the statute. See A.R.S. § 25-503(E) (the court may order modification effective on a different date for good cause shown); see also Wick v. Wick, 107 Ariz. 382, 384, 489 P.2d 19 (1971) (action for divorce and related actions such as determination of child support are “generally considered equitable actions and are, therefore, conducted under the rules of equity”). However, the superior court found no factual support in Mother’s contention that she paid all the “direct” expenses for the Children. The record supports the court’s finding that Father purchased clothes, meals, provided spending money, and took the Children on vacations. The court further found that both parties incurred similar expenses and that Father had paid one-half of the extracurricular activities for the Children in the past. Finally, the court noted that if Mother incurred unreimbursed expenses for extracurricular activities, she could request that Father’s half of the expense be taken out of the money she owed Father due to the effective date of the new child support order. ¶ 33 The court acted within its discretion by establishing the date for the new child support order on July 1, 2015. Mother has not demonstrated how she was prejudiced by the court’s decision. See Walsh v. Walsh, 230 Ariz. 486, 494, ¶ 24, 286 P.3d 1095 (App. 2012) (quoting In re Marriage of Molloy, 181 Ariz. 146, 150, 888 P.2d 1333 (App. 1994)) (“We will reverse only if the complaining party suffers prejudice as a result of the error. Prejudice must appear affirmatively from the record.”). E. The Superior Court Appropriately Exercised its Discretion by Excluding Mother’s Expert Witness. ¶34 Mother contends the superior court’s exclusion of her expert witness during Father’s testimony pursuant to Arizona Rule of Evidence 615 prejudiced her ability to present her case. ¶ 35 Rule 615 states in pertinent part: “[a]t a party’s request, [or on its own] the court must order witnesses excluded so that they cannot hear other witnesses’ testimony,” except “a person whose presence a party shows to be essential to presenting the party’s claim or defense.” Ariz. R. Evid. 615(e) (emphasis added). ¶ 36 Mother does not argue on appeal that her expert witness on finances was “essential” to the presentation of her case. Mother argues instead her expert witness’s presence may have been helpful if the expert had the opportunity to hear Father’s testimony so he could provide contradictory evidence. The superior court noted the expert was not necessary because the parties had “ample time to do discovery” and “there’s [not] another expert on the other side.” The court’s application of the rule excluding the expert from the courtroom was not an abuse of discretion. See Spring v. Bradford, 241 Ariz. 455, 459-60, ¶ 15, 388 P.3d 849 (App. 2017) (superior court has discretion to allow essential expert witness to listen to other testimony or review transcribed testimony). F. Attorney’s Fees and Costs. ¶37 We deny both parties’ requests for attorney’s fees incurred in this appeal pursuant to A.R.S. § 25-324(A), but grant Father his costs on appeal pursuant to Arizona Rule of Civil Appellate Procedure 21. CONCLUSION ¶ 38 For the forgoing reasons, we affirm. , The current Guidelines were adopted for actions filed after June 30, 2015. A.R.S. § 25-320 Appendix Preamble. However, the deviation criteria under the 2011 Guidelines are the same as the current Guidelines. . We cite to the current version of applicable statutes or rules when no revision material to this case has occurred. . To request the 2012 Order modification, Father filed a petition titled Petition to Modify Child Support "Simplified Process.” See Guidelines § 24(B) ("[I]f application of the guidelines results in an order that varies 15% or more from the existing amount,” “[the] fifteen percent variation ... will be considered evidence of substantial and continuing change of circumstances.”). The request for a “Simplified Procedure" was, however, used incorrectly in this case because “the existing amount” of the 2012 Order was a deviated amount and not one resulting from the "application of the guidelines.” See id.. However, the superior court properly applied the "Standard Procedure” under Guidelines § 24(A) (substantial and continuing change in circumstances). . "In all family law proceedings tried upon the facts, the court, if requested before trial, shall find the facts specially and state separately its conclusions of law thereon....” Ariz. R, Fam. Law P. 82(A) (emphasis added).

OPINION NORRIS, Judge: ¶ 1 Pamela A. Johnson, Plaintiff/Appellant, appeals the superior court’s order dismissing her “appeal” from a final administrative decision of the Arizona Registrar of Contractors, Defendant/Appellee. Johnson argues that because Arizona Revised Statutes (“AR.S.”) section 12-904(A) (2016) does not state where an appealing party must file a notice of appeal from a final administrative decision, she was entitled to file her notice of appeal with the Registrar, instead of with the superior court. We reject this argument and affirm the superior court’s order dismissing her appeal as untimely. BACKGROUND AND PROCEDURAL HISTORY ¶2 In 2010, homeowners hired Forsythe and Sons Construction, Inc. (“Forsythe”) to complete roofing work on their house. In 2012, the homeowners sold the house to Johnson. After Johnson obtained possession of the house, she discovered that the roof leaked. Subsequently, she filed a complaint against Forsythe with the Registrar. An investigator for the Registrar investigated her complaint and issued a “Corrective Work Order” giving Forsythe 15 days to correct the deficient work. Forsythe failed to correct the work and ultimately the Registrar issued a finite suspension of Forsythe’s license. ¶3 On October 7, 2014, Johnson filed a recovery fund claim with the Registrar. The Registrar denied her claim and Johnson requested a hearing before an administrative law judge (“ALJ”) of the Office of Administrative Hearings (“OAH”) to challenge the Registrar’s denial. After conducting a hearing, the ALJ ruled the Registrar had appropriately denied Johnson’s claim. Pursuant to AR.S. § 41-1092.08(B) (2013) (director may accept, reject, or modify ALJ’s decision), the Registrar accepted the ALJ’s decision and the Registrar’s decision became the final administrative decision in the case on September 15, 2015 (“September 15 Registrar Decision”). ¶ 4 On October 14, 2016, Johnson attempted to appeal the September 15 Registrar Decision by filing a document entitled “Complainant’s Notice of Appeal” with the Registrar (the “Registrar NOA”). That document listed Forsythe, but not the Registrar, as the “Respondent.” Johnson did not file the Registrar NOA in the superior court. On October 21, 2015, Johnson delivered to the Registrar and the OAH a document entitled “Complainant’s A.R.S. § 12-904B Notice.” Johnson did not file that document in the superior court either. Finally, on October 27, 2015, Johnson filed a document entitled “Notice of Appeal from and Request for Review of Final Administrative Decision” in the superior court, listing Maricopa County as “Appellee” (the “Superior Court NOA”). That document did not list the Registrar as a party, however. ¶ 5 The Registrar moved to dismiss, arguing Johnson’s Superior Court NOA was untimely under A.R.S. § 12-904(A), a statute that sets forth the procedure and deadlines for filing an action to review a final administrative decision. While that motion was pending, Johnson moved to amend the caption to substitute the Registrar and Forsythe as ap-pellees. Although the superior court granted that motion, the superior court nevertheless granted the Registrar’s motion to dismiss, finding Johnson’s Superior Court NOA untimely under A.R.S. § 12-904(A). DISCUSSION ¶ 6 On appeal, Johnson does not dispute that she did not file her Superior Court NOA within the deadline established by A.R.S. § 12-904(A). Instead, Johnson argues A.R.S. § 12-904(A) fails to state where an appealing party must file a notice of appeal from a final administrative decision and, therefore, the superior court should not have dismissed her appeal because she filed the Registrar NOA with the Registrar before the statutory appeal deadline expired. Exercising de novo review on this issue, we disagree. See Doty-Perez v. Doty-Perez, 241 Ariz. 372, 375, ¶ 17, 388 P.3d 9, 12 (App. 2016) (appellate court interprets statutes de novo) (citation omitted); M-11 Ltd. P’ ship v. Gommard, 235 Ariz. 166, 168, ¶ 6, 330 P.3d 356, 358 (App. 2014) (appellate court reviews motion to dismiss for lack of subject matter jurisdiction de novo). ¶ 7 The process for judicial review of final administrative decisions is set out in title 12, chapter 7, article 6, AR.S. §§ 12-901 to -914 (2016), Under AR.S. § 12-904(A), “[a]n action to review a final administrative decision shall be commenced by filing a notice of appeal within thirty-five days from the date when a copy of the decision sought to be reviewed is served upon the party affected.” The deadline for filing an administrative appeal is jurisdictional. Smith v. Ariz, Citizens Clean Elections Comm’n, 212 Ariz. 407, 413, ¶ 25, 132 P.3d 1187, 1193 (2006) (citation omitted). An untimely filing deprives the court of subject matter jurisdiction, and the appealing party forfeits the right to seek judicial review. M-11 Ltd. P’ship, 236 Ariz. at 168, ¶ 2, 330 P.3d at 368; see also A.R.S. § 12-902(B) (“Unless review is sought of an administrative decision within the time and in the manner provided in this article, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of the decision.”). ¶ 8 Although Johnson argues A.R.S. § 12-904(A) is silent on where an appealing party must file a notice of appeal, it is not, in fact, silent. To obtain judicial review of a final administrative decision, A.R.S. § 12-904(A) directs the appealing party to “commence” an “action” by filing a notice of appeal. By statute, an “action” is “any matter or proceeding in a court, civil or criminal.” A.R.S. § 1-216(1) (Supp. 2016); Semple v. Tri-City Drywall, Inc., 172 Ariz. 608, 611, 838 P.2d 1369, 1872 (App. 1992) (proceeding before the Registrar of Contractors was not an “action” for purposes of A.R.S. § 12-341.01 because it was not “a proceeding before a court of law”); Action, Black’s Law Dictionary (10th ed. 2014) (action is “[a] civil or criminal judicial proceeding”); see also Mona Baskin and Mary DeLaat Williams, Registrar of Contractors, 8 Arizona Appellate Handbook § 34.3.6.2.1 (4th ed. 2014) (“An action for judicial review of a registrar’s decision must be commenced by the filing of a Notice of Appeal for Judicial Review of an Administrative Decision in [the] superior court.”). Therefore, A.R.S. § 12-904(A) directs an appealing party to file his or her notice of appeal with the superior court, which commences the action to review a final administrative decision. ¶ 9 The Arizona Rules of Procedure for Judicial Review of Administrative Decisions (“JRAD”), which apply to actions under title 12, chapter 7, article 6, underscore A.R.S. § 12-904(A)’s directive. JRAD 1(b) incorporates the Arizona Rules of Civil Procedure. Arizona Rule of Civil Procedure 3, in turn, states, “[a] civil action is commenced by filing a complaint with the court,” (Emphasis added.) ¶ 10 Even if AR.S. § 12-904(A) was silent on where an appealing party is to file a notice of appeal, the statutory scheme for judicial review of administrative decisions makes clear Johnson was required to file her notice of appeal with the superior court, not with the Registrar. “We construe statutes to give effect to an entire statutory scheme,” Backus v. State, 220 Ariz. 101, 104, ¶ 10, 203 P.3d 499, 602 (2009) (citation omitted). For example, AR.S. § 12-905(B) provides “an action to review a final administrative decision may be commenced in the superior court of any county” that meets certain specified conditions. A.R.S, § 12-905(B) (emphasis added). Further, other provisions of title 12, chapter 7, article 6 require the appealing party to file certain documents with the agency, and these provisions would be meaningless if an appealing party could file his or her notice of appeal with the agency. See Patches v. Indus. Comm’n, 220 Ariz. 179, 182, ¶ 10, 204 P.3d 437, 440 (App. 2009) (“[Cjourts must, where possible, avoid construing statutes in such a manner as to produce absurd or unconstitutional results.”). ¶ 11 For example, A.R.S. § 12-904(B) requires an appealing party to file a “notice of the action” with the OAH or the agency that conducted the hearing within ten days after filing a notice of appeal. If the appealing party could commence the action by filing the notice of appeal with the agency, no purpose would be served by filing the “notice of the action” with the agency as it already would have had notice of the action. Similarly, A.R.S. § 12-906 requires the appealing party to serve the notice of appeal on the administrative agency. This requirement would be superfluous if an appealing party could initi ate an appeal by filing the notice of appeal with the agency itself. Finally, A.R.S. § 12-907 requires the agency responding to an appeal to file a notice of appearance in response to the notice of appeal. If A.R.S. § 12-904(A) permitted an appealing party to file a notice of appeal with the agency, there would be no need for the agency to then file a notice of appearance with itself. ¶ 12 Outside the context of title 12, chapter 7, article 6, A.R.S. § 12-284(A) (2016), which governs fees for civil proceedings, requires an appealing party to pay the clerk of the superior court for filing of a notice of appeal under A.R.S. § 12-904. It would make little sense for an appealing party to pay fees to the superior court if that party could initiate an appeal with the agency directly. ¶ 13 Despite the foregoing, Johnson argues that because other appeal rights require the appealing party to initiate the appeal in the court from which the appeal is taken, we should construe the statutory scheme as allowing a party to file a notice of appeal from a final administrative decision with the agency rather than the superior court. Johnson points out that judgments rendered in a justice court are appealed to the superior court by filing a notice of appeal in the justice court, Ariz. R. Super, Ct. App. P, Civ. 3(a), and judgments rendered in the superior court are appealed to the court of appeals by filing a notice of appeal with the clerk of the superior court, Arizona Rule of Civil Appellate Procedure (“ARCAP”) 8(a). Johnson also points out a party may obtain a hearing on an “appealable agency action or contested case” by filing a notice of appeal or request for a hearing with the agency, A.R.S. § 41-1092.03(B) (2013). ¶ 14 Johnson’s argument, however, ignores these appeal rights are grounded on statutes or rules expressly requiring the appealing party to initiate the appeal by filing a notice of appeal with the entity that rendered the decision. No such statute or rule supports Johnson’s argument that filing a notice of appeal with the Registrar is timely for purposes of A.R.S. § 12-904(A). “Courts will not read into a statute something that is not within the manifest intent of the legislature as indicated by the statute itself....” Cicoria v. Cole, 222 Ariz. 428, 431, ¶ 16, 216 P.3d 402, 405 (App. 2009) (citation omitted). And, Johnson’s argument ignores that the Arizona Rules of Civil Procedure, which require an appealing party to file a complaint in the superior court, are incorporated into JRAD. See supra ¶9. ¶ 16 The Legislature’s 2012 amendment of A.R.S. § 12-904(A) does not, as Johnson also argues, evidence the Legislature’s intent to allow an appealing party to initiate an appeal by filing the notice of appeal with the agency itself. Before 2012, A.R.S. § 12-904(A) required an appealing party to commence an appeal by filing a “complaint,” tracking the language of Arizona Rule of Civil Procedure 3. In contrast, the current version requires an appealing party to file a “notice of appeal.” A.R.S. § 12-904(A). The amendment, among other things, changed certain terminology, such as changing plaintiff and defendant to appellant and appellee, and removed the requirement that an appellee file an answer. The amendment did not, however, change where an appealing party is required to file the notice of appeal. The legislative history of the 2012 amendment, H.R. Bill Summary (April 23, 2012), S.B. 1193, 50th Leg., 2d Reg. Sess. (Ariz. 2012), does not state or suggest that an appealing party may file the notice of appeal with the agency. ¶ 16 Finally, Johnson argues that even if she misfiled her notice of appeal in the “wrong forum,” it was nevertheless timely filed in a forum and should be considered timely. We disagree. ¶ 17 In making this argument, Johnson relies on Wilkinson v. Fabry, 177 Ariz. 506, 869 P.2d 182 (App. 1992), and Martinez v. Indus. Comm’n, 213 Ariz. 531, 144 P.3d 1260 (App. 2006), both of which relied on the then in effect version of ARCAP 4(a). In Wilkinson, the appealing party filed his notice of appeal with the clerk of the court of appeals instead of the clerk of the superior court. Wilkinson, 177 Ariz. at 506, 869 P.2d at 182. Pursuant to ARCAP 4(a), we held the appealing party’s notice of appeal was timely. Id. ARCAP 4(a) then provided: No papers received by the clerk within the time fixed for filing which if untimely filed would render the ease, appeal or petition subject to dismissal by the appellate court for jurisdictional reasons, shall be refused by the clerk solely for the reason that they were not tendered for filing in the proper court or division. Rather, such papers shall be transmitted to the proper court or division and shall be (kerned, timely filed. Id. at 507, 869 P.2d at 183 (quoting ARCAP 4(a)). Because the rule required the clerk of the court to transmit the notice of appeal to the proper court, the appealing party’s notice of appeal filed with the clerk of the court of appeals was timely, even though it should have been filed in the superior court. Id. ¶ 18 Here, as discussed, see supra ¶9, the Arizona Rules of Civil Procedure, not AR-CAP, apply to Johnson’s claims. As discussed above, Arizona Rule of Civil Procedure 3 states, “A civil action is commenced by filing a complaint with the court.” Therefore, the reasoning of Wilkinson and ARCAP 4(a) is inapplicable. ¶ 19 In Martinez, the appealing party filed his petition for special action from an Industrial Commission award with the Industrial Commission instead of with the court of appeals. Martinez, 213 Ariz. at 531-32, ¶ 1, 144 P.3d at 1260-61. In addition to examining ARCAP 4(a), the court also considered A.R.S. § 12-120.22(B) (2016), which provides: No case, appeal or petition for a writ brought in the supreme court or court of appeals shall be dismissed for the reason only that it was not brought in the proper court or division, but it shall be transferred to the proper court or division. Id. at 532, ¶ 6, 144 P.3d at 1261. ¶ 20 Because the Arizona Rules of Procedure for Special Actions incorporated AR-CAP, and the Industrial Commission acts as a “quasi-judicial body,” we concluded that under ARCAP 4(a) and AR.S. § 12-120.22(B), the misfiled petition for special action was timely. Id. at 533, ¶ 8, 144 P.3d at 1262. ¶21 Here, as discussed, see supra ¶18, former ARCAP 4(a) is inapplicable. Further, A.R.S, § 12-120.22(B) addresses appeals “brought in the supreme court or court of appeals.” Johnson’s appeal did not involve an appeal brought in either the supreme court or the court of appeals. Instead, the superior court sits as an appellate court in its review of the Registrar’s final decision. See AR.S. § 12-911 (outlining powers of superior court in reviewing agency’s final decision). Finally, as discussed, see supra ¶8, on its face, AR.S. § 12-904(A) requires an appealing party to file the notice of appeal with the superior court. Therefore, A.R.S. § 12-120.22(B) is inapplicable. CONCLUSION ¶ 22 For the foregoing reasons, we agree with the superior court that Johnson did not timely appeal the September 15 Registrar Decision. Therefore, we affirm the superior court’s order dismissing her appeal. . The Residential Contractors’ Recovery Fund is a fund that allows the Registrar to award "any person injured by an act, representation, transaction or conduct of a residential contractor” an award not to exceed $30,000 “for damages sustained by the act, representation, transaction or conduct." A.R.S. § 32-1132(A) (2016). . Subject to certain exceptions not relevant here, service under A.R.S. § 12-904(A) is complete when the decision is personally delivered to the "party affected” or five days after the date the decision is mailed to the party's last known address. A.R.S. § 12-904(A). Here, the Registrar mailed the September 15 Registrar Decision to Johnson on September 15, 2015. Service was complete five days later on September 20, 2015. Because the 35th day fell on a Sunday, Johnson was required to file a notice of appeal from the September 15 Registrar Decision on or before October 26, 2015. Although Johnson filed the Registrar NOA with the Registrar on October 15, 2015, she did not file the Superior Court NOA in the superior court until October 27, 2015, one day after the appeal deadline. . This statute has not been amended since its adoption, we therefore cite the current version.

OPINION DOWNIE, Judge: ¶ 1 The Arizona Department of Transportation (“ADOT”) appeals the tax court’s entry of summary judgment in favor of BSI Holdings, LLC (“BSI”). We hold that, in calculating the annual license tax due for a non-resident aircraft based in Arizona, the word “day” in Arizona Revised Statutes (“A.R.S.”) section 28-8336 means any calendar day during which the aircraft was on the ground in Arizona for any period of time. Because the tax court applied a materially different definition, we vacate its judgment and remand for further proceedings consistent with this opinion. FACTS AND PROCEDURAL HISTORY ¶ 2 BSI is an Oregon limited liability company that was formed to purchase, operate, and maintain a dual engine turbo-jet (the “Jet”). During the period relevant to this appeal, the Jet was based in Arizona and regularly flew in and out of the Scottsdale Airport, where BSI maintained a tie-down arrangement/hangar agreement. For the period of time at issue, the Jet was used exclusively by Arizona resident (and BSI member) Richard Burke for personal purposes, including “family trips, transportation to family events, drop-off and pick-up of family and friends.” ¶3 In 2004, BSI and ADOT executed a “Closing Agreement” that settled a dispute between them regarding the aircraft license tax due for 2003 and 2004. Under the terms of the Closing Agreement, BSI paid no tax for 2003. For 2004, it paid the non-resident rate applicable to aircraft that are present in Arizona for more than 90 days but fewer than 210 days. BSI thereafter paid that same rate for tax years 2005 through 2012. ¶ 4 ADOT conducted an audit and concluded the Jet had been based in Arizona for more than 209 days each audited year and that BSI should therefore have paid the resident tax rate. ADOT issued an assessment for $161,004. ADOT also notified the Federal Aviation Administration of the assessment, and a lien was recorded against the Jet. See A.R.S. § 28-8330(A) (“The license tax, registration fee and penalty constitute a lien on the aircraft on which they are due from the due date.”). ¶ 5 After an unsuccessful administrative appeal, BSI filed a complaint in the tax court, alleging ADOT improperly applied the tax rates set forth in A.R.S. § 28-8336 and was estopped from imposing assessments for tax years 2004 through 2012. BSI subsequently moved for partial summary judgment, arguing: (1) the Closing Agreement barred the 2004 assessment; (2) ADOT was equitably estopped from imposing assessments for tax years 2004 and 2005; and (3) the lien against the Jet was illegal. ADOT responded to BSI’s motion and cross-moved for summary judgment as to the validity of the lien and the assessment for the eight tax years at issue. BSI responded to ADOT’s motion and cross-moved for summary judgment, arguing the assessment was invalid for all tax years. ¶6 The tax court granted BSI’s cross-motion for summary judgment, ordering that the assessment be vacated and abated. The court concluded the Jet was present in Arizona “for more than 90 days, but less than 210 days, in each of the subject tax years” and was thus eligible for the non-resident tax rate BSI had previously paid. The court also awarded BSI attorneys’ fees and costs. After the court issued a final judgment, ADOT timely appealed. We have jurisdiction pursuant to AR.S. §§ 12-120.21(A)(1) and -170(C). DISCUSSION ¶ 7 An “annual license tax is imposed on all aircraft based in this state and required to be registered” unless an exemption applies. A.R.S. § 28-8336; see also Ariz. Const, art. IX, § 15. Aircraft owned by Arizona residents are taxed at .5% of the “average fair market value” of the aircraft. See A.R.S. § 28-8335(B). Aircraft owned by non-residents may receive more favorable tax treatment, depending on the number of days they are based in Arizona: BSI v. ADOT Opinion of the Court Based in Arizona Tax Rate 1-90 days Exempt from tax 91-209 days .1% of average fair market value 210-365 days .5% of average fair market value (resident rate) A.R.S. §§ 28-8322, -8336, -8335(B). ¶ 8 The parties dispute whether the Jet was based in Arizona for more than 209 days within the meaning of A.R.S. § 28-8336. We review issues of statutory interpretation, as well as grants of summary judgment, de novo. See Ariz. Dep’t of Revenue v. Salt River Project Agric. Improvement & Power Dist., 212 Ariz. 35, 38, ¶ 13, 126 P.3d 1063, 1066 (App. 2006). Ordinarily, an administrative agency’s interpretation of a statute it implements is given great weight. See Baca v. Ariz. Dep’t of Econ. Sec., 191 Ariz. 43, 45-46, 951 P.2d 1235, 1237-38 (App. 1998). “However, the agency’s interpretation is not infallible, and courts must remain the final authority on critical questions of statutory construction.” U.S. Parking Sys. v. City of Phoenix, 160 Ariz. 210, 211, 772 P.2d 33, 34 (App. 1989). I. A.R.S. § 28-8336 ¶ 9 We begin with the plain language of the statute, which is “the most reliable indicator” of its meaning. Sempre Ltd. P’ship v. Maricopa County, 225 Ariz. 106, 108, ¶ 5, 235 P.3d 259, 261 (App. 2010). Section 28-8336 states: The license tax for a nonresident whose aircraft is based in this state for more than ninety days but less than two hundred ten days in a calendar year is equal to one-tenth of one per cent of the average fan-market value of the particular make, model and year of aircraft if the aircraft is not engaged in any intrastate commercial activity. ¶ 10 BSI concedes the Jet was based in Arizona for more than 90 days during each of the tax years at issue, and the parties agree the Jet was not engaged in intrastate commercial activity. The parties disagree, though, about how to calculate the number of days the Jet was “based in this state.” ¶ 11 BSI contends the word “day” in § 28-8336 means a 24-hour period beginning on one midnight and ending on the next ensuing midnight.” According to BSI, if the Jet landed outside Arizona during that 24-hour period, it was not based in Arizona for that particular day. Applying that standard, BSI calculates the following day counts for the Jet: Tax Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 Day Count 173 152 150 159 190 206 162 187 162 ¶ 12 ADOT, on the other hand, argues “day” means “any part or portion of a day or any amount of time” the Jet spends on the ground in Arizona, Relying on that definition, ADOT contends the Jet was based in Arizona for more than 209 days each tax year: Tax Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 Day Count Pilot Logs 229 232 234 249 259 274 260 276 293 Day Count Flightwise? 228 217 218 235 243 236 236 247 236 ¶ 13 In adopting BSI’s interpretation of the statute, the tax court noted that the legislature has not defined “day” and that the parties presented nothing “to indicate whether the legislature intended for ‘day' to mean an entire 24-hour period or some lesser portion of it.” Concluding that the statutory ambiguity “must be construed in the taxpayer’s favor,” the tax court ruled that the word “day” in § 28-8336 means “any period of twenty four hours.” ¶ 14 We agree with the tax court that the statute is ambiguous. See Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994) (A statute is ambiguous if its text “allows for more than one rational interpretation”). We disagree, however, that the ambiguity persists after applying recognized tools of statutory construction. See id. (if the meaning of a statute is uncertain, courts may employ tools of statutory interpretation). Although courts “liberally construe statutes imposing taxes in favor of the taxpayers and against the government,” Salt River Project, 212 Ariz. at 38, ¶ 14, 126 P.3d at 1066, that tenet applies only if a statute remains ambiguous after utilizing tools of statutory interpretation. See Harris Corp. v. Ariz. Dep’t of Revenue, 233 Ariz. 377, 384, ¶ 23, 312 P.3d 1143, 1160 (App. 2013) (The maxim that ambiguous statutes are construed in favor of taxpayers applies only “after considering the interpretive guidance provided by the legislature, and applying standard rules of construction.”). ¶ 15 “[T]he law takes no notice of fractions of a day and deems any fraction of a day to be a ‘day,’” Maciborski v. Chase Serv. Corp. of Ariz., 161 Ariz. 557, 562, 779 P.2d 1296, 1301 (App. 1989); see also Lagandaon v. Ashcroft, 383 F.3d 983, 985, 991, 993 (9th Cir. 2004) (interpreting a statute requiring aliens to be “physically present in the United States for a continuous period of not less than 10 years” to include any portion of a day, noting that, “[i]n the space of a day all the twenty four hours are usually reckoned; the law generally rejecting all fractions of a day, in order to avoid disputes”); Talbott v. Caudill, 248 Ky. 146, 58 S.W.2d 385, 386 (1933) (“It is the common-law rule that judicially a day is the whole or any part of the period of twenty-four hours, from midnight to midnight.”); cf. State v. Carnegie, 174 Ariz. 452, 454, 850 P.2d 690, 692 (App. 1993) (rejecting contention a defendant must be in custody “for a full twenty-four hours” to receive pre-sentence incarceration credit for a particular day). ADOT’s interpretation of “day” is consistent with this principle, and no legislative history suggests an intention to deviate from this long-standing common-law concept. ¶ 16 ADOT’s interpretation also furthers the implicit goals of the statutory scheme. See Hayes, 178 Ariz. at 268, 872 P.2d at 672 (courts attempt to interpret statutes in a manner that furthers perceived goals). In evaluating legislative intent, we consider the statute’s context, its language, subject matter and historical background, its effects and consequences, and its spirit and purpose. Id. ¶ 17 During all of the tax years at issue here, the statutory scheme governing aircraft registration and taxation mandated that aircraft license tax assessments go directly into the state aviation fund (“Fund”) “for use in the construction, development and improvement of airports.” A.R.S. § 28-8345. Fund expenditures cover items such as construction and maintenance of runways, taxiways, and aprons where aircraft park; lighting; aircraft guidance systems; weather observation and reporting equipment; and signage. BSI did not controvert ADOT employee Susan J. Wylezik’s affidavit regarding how aircraft based in Arizona use airport infrastructure and services: Aircraft that conduct aircraft operations use an airport’s guidance signage, heliports, rotating beacon, runway extension and strengthening, Medium Intensity Runway Lighting and High Intensity Runway Lighting, Visual Guidance System, taxiway, weather observation system, wildlife deterrent fencing, and wind cone equipment. Aircraft that fly in and out also benefit from the removal of hazards that are located within navigable airspace. ¶ 18 The graduated license tax scheme for non-resident aircraft suggests a legislative intent to increase the tax rate as the use of Arizona airport facilities increases, not to decrease the rate the more a non-resident owner uses Arizona airports, Applying BSI’s definition would frustrate such a purpose and lead to anomalous (if not absurd) results. See, e.g., State v. Estrada, 201 Ariz. 247, 251, ¶ 17, 34 P.3d 356, 360 (2001) (Courts avoid interpreting statutes in a manner leading to an absurd result, meaning one “so irrational, unnatural, or inconvenient that it cannot be supposed to have been within the intention of persons with ordinary intelligence and discretion.”). ¶ 19 Moreover, elsewhere in the same title, chapter, and article as § 28-8336, the legislature identifies “full” time periods when it intends such a measure. See, e.g., A.R.S. § 28-8324(B)(1) (“The license tax for that year on the aircraft shall be reduced by one-twelfth for each full month of the calendar year that has expired.” (emphasis added)). The legislature also understands how to override the common law definition discussed supra, ¶ 15, and define a 24-hour period as a “day” when it wishes to do so. See, e.g., A.R.S. §§ 11-1601(9) (“ ‘Working day* means a twenty-four hour period....”), 48-3641(8) (same); see also “Day,” Black’s Law Dictionary (10th ed. 2014) (offering various definitions for “day,” and stating that, “A statute referring to an entire day contemplates a 24-hour period beginning and ending at midnight.”). ¶ 20 We hold that an aircraft is based in Arizona within the meaning of A.R.S. § 28-8336 for any day during which it is physically present on the ground in this state for any period of time. Applying this definition, evidence of record strongly suggests the Jet was based in Arizona for more than 209 days during each tax year at issue. At oral argument before this Court, however, BSI would not concede that fact. Therefore, on remand, the tax court must resolve that factual issue, applying the definition of “day” adopted herein. ¶ 21 Finally, we disagree with BSI s contention that ADOT impermissibly adopted and uniformly applied a policy affecting its substantive or procedural rights without following the requirements of A.R.S. §§ 41-1091, -1091.01 or the Administrative Procedures Act, A.R.S. §§ 41-1001, et seq. BSI’s reliance on Ariz. State Univ. v. Ariz. State Ret. Sys., 237 Ariz. 246, 349 P.3d 220 (App. 2016), is unavailing. In that case, the state retirement system adopted a policy concerning newly promulgated statutes regarding employer termination incentive programs that affected employers’ substantive lights. Id. at 248-49, ¶¶ 6-8, 349 P.3d at 222-23. The policy involved a “complex calculation with subjective components,” id. at 261, ¶ 19, 349 P.3d at 225, requiring the exercise of substantial “judgment and discretion.” Id at 262, ¶ 21, 349 P.3d at 226. No comparable policy is at issue here. We simply have an agency interpreting a term in a statute. Administrative agencies need not (and indeed, could not realistically) define, disclose, and codify their interpretations of every Arizona statute relevant to their duties. Furthermore, it is the statute itself, as opposed to ADOT’s interpretation and implementation of it, that has affected BSI’s rights. II. Estoppel ¶ 22 We do not reach BSI’s estoppel claims because the tax court has not yet considered them. On remand, the court may further address those claims. CONCLUSION ¶ 23 We vacate the entry of summary judgment in favor of BSI, as well as the award of attorneys’ fees and costs to BSI. We remand to the tax court for further proceedings consistent with this opinion. ADOT is entitled to recover its taxable costs on appeal, if any, upon compliance with Arizona Rule of Civil Appellate Procedure 21. . Although its briefing suggested that simply leaving Arizona airspace was sufficient, BSI conceded at oral argument before this Court that the Jet is properly considered based in Arizona on a particular day if it has not landed outside the state during that day,

OPINION SWANN, Judge: ¶ 1 Colleen S. Lundy (“Mother”) appeals the superior court’s modification of William N. Lundy, Jr.’s (“Fatherfs]”) child support obligation. We conclude that the court erroneously attributed income to Mother from a second job, and erroneously credited Father for the full amount paid on an insurance policy covering both the minor children and other dependents. We therefore vacate the modification order and remand for further proceedings. We further hold that the court erred by awarding attorney’s fees to Father in the absence of a written request for fees. FACTS AND PROCEDURAL HISTORY ¶ 2 In 2004, Father and Mother, the parents of three then-minor children, entered a consent decree dissolving their marriage. The decree ordered Father to pay monthly child support and provide medical and dental insurance for the children. ¶ 3 In 2014, Father filed a petition to modify his child support obligation. He argued that modification was warranted because the parties’ incomes had changed and their oldest child had turned 18 years old. ¶ 4 After holding an evidentiary hearing in July 2015, the superior court granted Father’s petition and modified his child support obligation from $1,354.41 per month to $500 per month. In calculating the new amount, the court attributed to Mother income from two jobs. The court also credited Father for the full amount he paid to provide health insurance coverage for the three children and his wife, relying on testimony that Father’s cost to purchase dependency coverage would remain the same regardless of the number of dependents added to the policy. Finally, the court awarded Father approximately $5,000 in attorney’s fees under A.R.S. § 25-324. ¶ 5 Mother appeals. DISCUSSION I. THE SUPERIOR COURT ERRONEOUSLY CALCULATED FATHER’S NEW CHILD SUPPORT OBLIGATION. ¶ 6 After the consent decree was entered, the parties’ oldest child reached the age of majority and graduated high school. That fact alone provided sufficient grounds for the court to revisit the issue of child support. See A.R.S. §§ 25-501(A), -503(E). We conclude, however, that several legal errors contributed to the calculation of the new support obligation. A. The Superior Court Erred by Considering Income that Mother Earned from a Second Job, ¶ 7 Mother first contends that the superior court erred by including earnings from a second job when determining her income for the child-support calculation. We agree. ¶ 8 Section 5(A) of the Arizona Child Support Guidelines provides that when determining parents’ incomes for child support purposes: Generally, the court should not attribute income greater than what would have been earned from full-time employment. Each parent should have the choice of working additional hours through overtime or at a second job without increasing the child support award. The court may, however, consider income actually earned that is greater than would have been earned by full-time employment if that income was historically earned from a regular schedule and is anticipated to continue into the future. A.R.S. § 25-320 app. § 5(A). Section 5(A)’s intent is “consistent with the concept of full-time employment.” McNutt v. McNutt, 203 Ariz. 28, 32, ¶ 17, 49 P.3d 300 (App. 2002). The provision “ensure[s] that the child support award is based on both parents’ regular incomes but leave[s] to each parent the choice of working additional hours—whether overtime or at a second job—without exposing that parent to the ‘treadmill’ effect of an ever-increasing child support obligation.” Id, ¶ 9 The court used Mother’s 2013 tax return to determine her income, reasoning that her 2014 tax return reflected atypical earnings. The 2013 return showed that Mother’s net annual income from her job as a financial advisor was $67,057, and that her net profit from a separate business management job was $37,679. Her 2014 return and her testimony established that she continued to work as a financial advisor. The 2014 return did not, however, make any mention of a business management position (though it did report approximately $3,000 in earnings from an “insurance” job). The court was not presented with evidence from which it could conclude that Mother’s business management income was “historically earned from a regular schedule and is anticipated to continue into the future.” We conclude, therefore, that the court erred by including that income in the child-support calculation. ¶ 10 We reject Father’s argument that Mother waived § 5(A)’s application. Neither Mother nor Father specifically addressed the business management income in the modification proceedings—they instead disputed whether Mother’s 2014 earnings (which did not include business management income) accurately represented her financial situation and whether she correctly self-reported her 2015 income (which similarly did not include business management income). Mother cannot be said to have waived her right to challenge the court’s sua sponte inclusion of income from the business management work she did in 2013. B. The Superior Court Erred by Crediting Father with the Full Amount of His Insurance Premium Payments. ¶ 11 Mother next contends that the superior court erred by failing to prorate the amount Father paid to provide health insurance coverage for the two minor children, the adult child, and Father’s wife. Again, we agree with Mother. ¶ 12 Section 9(A) of the Guidelines provides that the court: Shall add to the Basic Child Support Obligation the cost of the children’s medical dental or vision insurance coverage, if any.... In determining the amount to be added, only the amount of the insurance cost attributable to the children subject of the child support order shall be included. If coverage is applicable to other persons, the total cost shall be prorated by the number of persons covered. Section 9(A) then provides an example of a “family option” premium payment that “provides coverage for the employee and any rmmber of dependents,” (Emphasis added.) The example explains that the cost attributable to the dependents’ coverage should be divided by the number of dependents, then the quotient should be multiplied by the number of the dependents who are the subject of child support, and then the product should be used to calculate child support, The example makes clear that the premium must be prorated even if the named insured could add any number of non-child-support dependents to the policy at no additional cost. ¶ 13 In view -of the foregoing, the superior court erred by refusing to prorate Father’s premium payments to account for the health insurance’s coverage of the adult child and Father’s wife. Father’s contention that Mother waived this issue is unavailing. The transcript reveals Mother specifically argued that proration was required. Her failure to cite § 9(A) did not constitute waiver. II. THE SUPERIOR COURT ERRONEOUSLY AWARDED ATTORNEYS FEES TO FATHER. ¶ 14 Mother finally contends that the superior court erred by awarding attorney’s fees to Father, arguing that he did not properly request fees under ARFLP 78(D)(1). ¶ 15 ARFLP 78(D)(1) provides that “[a] claim for attorney’s fees, costs and expenses initially shall be made in the pleadings, pretrial statement, or by motion filed prior to trial or post-decree evidentiary hearing.” We need not decide the temporal strictures of the rule, because one thing is clear— the rule requires a filed, written request. There was no such request in this case. Father did not ask for fees in the modification petition or in any other filing. He instead asked for fees orally in closing argument at the evidentiary hearing. That was insufficient under ARFLP 78(D)(1), and the fact that Mother requested fees in the same manner as Father does not constitute waiver—neither party would have been eligible for fees under the rule. CONCLUSION ¶ 16 We vacate the superior court’s orders modifying child support, and we remand for further proceedings consistent with this decision. On remand, the parties should apprise the court of any new changes in circumstances or income that may affect child support. ¶ 17 In exercise of our discretion, we deny both parties’ requests for attorney’s fees on appeal. . Though the second and third sentences of § 5(A) might appear to conflict, we interpret the Guideline as a whole, avoiding constructions that could render any part meaningless. We read the second sentence to prohibit inclusion of income from traditional overtime or second jobs, and we read the third sentence to permit realistic calculation of income in cases involving a parent whose income does not arise from such discrete sources.

OPINION McMURDIE, Judge; ¶ 1 We are asked to consider whether the hospital assessment under Arizona Revised Statutes (“A.R.S.”) section 36-2901.08 was enacted in violation of Article 9, Section 22, of the Arizona Constitution. ¶ 2 Appellants, a group of legislators who voted against House Bill (“HB”) 2010 during the 2013 legislative session, appeal the superior court’s order granting Defendant’s and Intervenor-Defendants’ motions for summary judgment. Appellants contend HB 2010 created a new tax on hospitals, and therefore required a super-majority vote under Article 9, Section 22. Because HB 2010 imposed an assessment that is excepted under Section 22(C)(2), we find it constitutional as enacted and affirm the superior court, FACTS AND PROCEDURAL BACKGROUND ¶ 3 In September 2013, during the Fifty-First Arizona State Legislature, legislators introduced HB 2010 to expand Arizona’s indigent healthcare program. Included in that expansion was an assessment on hospitals to be set by the director of the Arizona Health Care Cost Containment System (“AHCCCS”). HB 2010 passed by a simple-majority vote, and Governor Janice K. Brewer signed it into law as A.R.S. § 36-2901.08. ¶ 4 Members of the Arizona Legislature who voted against HB 2010 subsequently filed suit in September 2013 to enjoin enforcement of the expansion, arguing HB 2010 was passed in violation of Article 9, Section 22. The parties filed cross-motions for summary judgment in May 2015 seeking a declaration regarding the constitutionality of § 36-2901.08. The superior court found the legislation came within a listed exception to Article 9, Section 22, and thus was not subject to the super-majority vote requirement. The legislators timely appealed and we have jurisdiction pursuant to AR.S. § 12-2101(A)(1) (2016). DISCUSSION ¶ 5 Questions of statutory interpretation and constitutional law are reviewed de novo. State ex rel. Thomas v. Klein, 214 Ariz. 205, 207, ¶ 5, 150 P.3d 778 (App. 2007). We presume that a statute is constitutional and resolve any doubts in favor of constitutionality. Niehaus v. Huppenthal, 233 Ariz. 195, 197, ¶ 5, 310 P.3d 983 (App. 2013). While all three branches of government have a role in interpreting the Constitution, when a conflict arises it is the courts’ constitutional responsibility to be the final arbiter. See Powell v. McCormack, 395 U.S. 486, 549, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). A. A.R.S. § 36-2901.08 Was Constitutionally Enacted in Accordance with Article 9, Section 22, of the Arizona Constitution. ¶6 AHCCCS provides health insurance benefits to qualified persons of low income. HB 2010 was intended to expand the program’s coverage, with joint funding from the federal and state governments. In order to provide the funding needed from the state government, HB 2010 created an assessment, paid by Arizona hospitals as set forth by the director of AHCCCS. HB 2010, 2013 Ariz. Sess. Laws, ch. 10, § 5 (1st Spec. Sess.). ¶ 7 Article 9, Section 22 states, “[a]n act that provides for a net increase in state revenues ... is effective on the affirmative vote of two-thirds of the members of each house of the legislature.” Subsection B provides that qualifying “acts” include, inter alia, “[t]he imposition of any new tax” and “[t]he imposition of any new state fee or assessment.” Ariz. Const, art. 9, § 22(B)(1), (5). However, Subsection C states that the two-thirds vote is not required on “[fjees and assessments that are authorized by statute, but are not prescribed by formula, amount or limit, and are set by a state officer or agency.” Adz. Const, art. 9, § 22(C)(2). 1. The Hospital Assessment Is Not a Tax. ¶ 8 Because the exception under Section 22(C)(2) applies only to “fees and assessments,” appellants first argue that the hospital assessment enacted by HB 2010 was a new “tax” under Section 22(B), and therefore required a two-thirds affirmative vote from both houses of the Arizona Legislature. When deciding whether to categorize a government levy as an assessment or a tax, the analysis is context-driven and examines three factors: (1) the entity imposing the levy; (2) the parties upon whom the levy is imposed; and (3) whether the levy is expended for general public purposes or used for the regulation or benefit of the parties upon whom the assessment is imposed. May v. McNally, 203 Ariz. 425, 430-31, ¶24, 55 P.3d 768 (2002); see also Bidart Bros. v. California Apple Comm’n, 73 F.3d 925, 929-31 (9th Cir. 1996). All three factors support the categorization of the hospital levy in the immediate case as an assessment, ¶ 9 Appellants claim the entity imposing the levy is the state legislature because the levy was created by the legislature through statute. This argument misses the mark. While the legislature may have authorized the levy through statute, we look to the entity with regulatory authority over the levy for purposes of categorizing it as a tax or assessment. See Jachimek v. State, 205 Ariz. 632, 636, ¶ 15, 74 P.3d 944 (App. 2003). Most levies are first authorized by statute. See, e.g., A.R.S. § 32-124(A) (establishing fees to be collected by the State Board of Technical Registration); A.R.S, § 45-334(A) (authorizing the director of water resources to set Colorado river water use fees); A.R.S. § 17-333 (mandating that the Game and Fish Commission prescribe license fees by rule). This does not mean that the levies are imposed by the legislature. Instead, the levies are imposed by an entity with discretion to set and administer them. Here, because the director has authority to “establish, administer and collect” the levy, we find AHCCCS is the entity imposing the levy. A.R.S. § 36-2901.08(A). ¶ 10 Analyzing the second factor, appellants argue the levy is imposed upon a broad class of hospitals, making it more like a tax than an assessment. Appellants misconstrue the language of the statute on its face. Section 36-2901.08(C) allows the director to “establish modifications or exemptions to the assessment.” In doing so, the director is allowed to consider factors including the size, services offered, and location of the hospital. A.R.S. § 36-2901.08(C). Therefore, the levy at issue is not necessarily charged to every hospital in the state. Even if it were, the assessment is narrowly applied only to hospitals, and not a broad class of citizens as is typical of a tax. This court has previously held that levies that are specific to a class of business are appropriately treated as an assessment. See, e.g., Jachimek, 205 Ariz. at 636, ¶ 16, 74 P,3d 944 (an assessment charged to all licensed pawnbrokers when reporting transactions under state law was not a tax). Therefore, because the levy is restricted to hospitals within the discretion of the director, this factor weighs in favor of treating the levy as an assessment. ¶ 11 Finally, appellants argue the levy is expended for general public purposes, not for the regulation or benefit of the levied parties, and therefore, should be considered a tax. Appellants focus in particular on the “broad public purpose” of the statute, and healthcare expansion as a whole. But while the entire expansion’s purpose was to provide healthcare to more of Arizona’s indigent population, the purpose of the assessment, as evidenced by the language of HB 2010, was to “be used for the benefit of hospitals for the purpose of providing health care for persons eligible for coverage funded by the hospital assessment.” HB 2010, 2013 Ariz. Sess. Laws, ch. 10, § 44(3) (1st Spec. Sess.) (emphasis added). ¶ 12 Appellants also contend hospitals only benefit “incidentally” from the assessment. But, under Arizona law, a levy can be treated as an assessment and not a tax as long as there is “some reasonable relation to the service to be performed on the payer’s behalf.” See Jachimek, 205 Ariz. at 637, ¶ 21, 74 P.3d 944 (quoting Stewart v. Verde River Irrigation & Power Dist., 49 Ariz. 531, 548, 68 P.2d 329 (1937)); see also Kyrene Sch. Dist. No. 28 of Maricopa County v. City of Chandler, 150 Ariz. 240, 244, 722 P.2d 967 (App. 1986) (water system development charges were not taxes simply because they benefited other parties). Here, while the Arizona residents who received coverage under the expansion also benefit from the statute and the assessment, this does not make the levy a tax being expended for a general public purpose. Because of the hospital assessment fund created by the statute, hospitals receive additional funding for uncompensated care, which is a benefit related to the levy. ¶ 13 Weighing the factors set forth in May, we conclude that the hospital assessment is not a tax. The assessment is imposed by the director of AHCCCS, on hospitals, and it is intended to provide additional funding for hospitals caring for qualified individuals under the expansion. 2. The Hospital Assessment Fits Within the (C)(2) Exception. ¶ 14 Because the hospital assessment is not a tax, we next address whether it fits within the specific exception under Section 22 (C)(2). Here, the exception requires the assessment to be: (1) authorized by statute; (2) not prescribed by formula, amount, or limit; and (3) set by a state officer or agency. Ariz. Const, art. 9, § 22(C)(2). Because neither party challenges that the assessment is set by a state officer or agency, we only address the first two prongs of the exception. i) The plain language of the exception does not require a super majority before it can apply to a fee or assessment. ¶ 15 Appellants argue that the language under the exception requiring it to be “authorized by statute” requires that an assessment be authorized by a two-thirds affirmative vote from both houses of the legislature, after which, a state officer or agency may then change the fee or assessment without invoking Section 22, so long as it is not prescribed by formula, amount, or limit. We disagree. ¶ 16 Article 9, Section 22(C)(2) simply states the exception applies to “assessments that are authorized by statute, but are not prescribed by formula, amount or limit, and are set by a state officer or agency.” Ariz. Const, art. 9, § 22(C)(2), Nowhere in the plain language of the exception do we find a requirement that the initial statute authorizing the fee must be passed by a super majority before the (C)(2) exception applies to fees and assessments set by a state officer or agency. See Simpson v. Simpson, 224 Ariz. 224, 225, ¶ 6, 229 P.3d 236 (App. 2010) (“The best indicator of legislative intent is the plain language of the statute.”). Furthermore, appellants’ reading ignores the initial language of subsection (C), which states, “[t]his section does not apply to...Ariz. Const, art. 9, § 22(C) (emphasis added). In other words, all of the listed exceptions in subsection (C) are exempt from the entirety of Section 22 of the Arizona Constitution, including subsections (A) and (B). Accordingly, it would require a contorted reading of the exception under (C)(2) to require a statute to pass the super-majority requirement of subsection (A), in order to then exempt fees and assessments falling within subsection (C) from the application of Section 22 entirely. ¶ 17 Appellants argue this construction of the statute would produce “absurd results” and render the intent of Article 9, Section 22 “ineffectual.” We disagree. A fee or assessment authorized by statute does not qualify for exemption unless it is “not prescribed by formula, amount or limit” and is “set by a state officer or agency.” Ariz. Const, art. 9, § 22(C)(2). Under our reading, and contrary to appellants’ contention, not every fee or assessment passed by a simple majority is exempt from Section 22. Appellants characterize this interpretation “absurd” because it would allow the legislature to enact an unspecified levy by a simple majority. However, the voter information pamphlet regarding Proposition 108 explained to voters that other types of fees would not be affected by the measure, and cited university tuition as an example of one of these assessments, ii) The federal approval and federal medical assistance requirements do not place a formula or limit on the assessment under the exception. ¶ 18 Finally, appellants contend the federal approval and federal medical assistance requirements in A.R.S. § 36-2901.08(B) and (E), respectively, act as limits on the assessment, taking it outside the Section 22(C)(2) exception. The appellants raise a facial challenge, and therefore we must consider the text of the law itself and not its current application. See Hernandez v. Lynch, 216 Ariz. 469, 472, ¶ 8, 167 P.3d 1264 (App. 2007). The party challenging the provision must demonstrate that no circumstances exist under which the regulation would be valid. Id. ¶ 19 Appellants argue, citing 42 U.S.C. § 1396b(w) and 42 C.F.R. § 433.68, that federal law contains regulations on how the hospital assessment can be imposed while maintaining federal funding for the expansion program, which creates a formula or limit for the assessment. We do not interpret a clause of this nature to be a limit on the hospital assessment under Article 9, Section 22(C)(2). The language of subsection (C)(2) plainly applies to state law and does not look beyond the statute authorizing the fee or assessment, in this case A.R.S. § 36-2901.08. This is evident when reading the entirety of subsection (C)(2), which states the exception applies to “[f]ees and assessments that are authorized by statute, but are not prescribed by formula, amount or limit, and are set by a state officer or agency.” The first clause refers to state statutes only, and the final clause specifically mentions state officers or agencies. Thus, the middle clause applies to formulas, amounts, or limits prescribed within the state statute. See Estate of Braden ex rel. Gabaldon v. State, 228 Ariz. 323, 326, ¶ 12, 266 P.3d 349 (2011) (,(We do not ... consider words in isolation when interpreting statutes.”); see also Planned Parenthood Comm. of Phoenix, Inc. v. Maricopa County, 92 Ariz. 231, 236, 375 P.2d 719 (1962) (“The rule of statutory construction, noscitur a so-ciis, directs our attention to the accompanying words.... ”). ¶ 20 Appellants also claim the director must administer the assessment “in accordance with federal law,” however, that interpretation is inaccurate. Section 36-2901.08(B) states the assessment is “subject to approval by the federal government” to ensure federal funding continues. This does not require the director to implement an assessment “in accordance with federal law,” it simply provides guidelines for the director to review before setting the assessment. The director is still free, based upon the statute, to choose the amount of the assessment and any exemptions. Placing an assessment amount for a statewide program that is dependent upon federal funding under a federal approval requirement for purposes of sustaining the program’s funding is not a limit under Section 22(C)(2). ¶ 21 Nor is the federal medical assistance requirement a limit under Article 9, Section 22(C)(2). Section 36-2901.08(E) states “[t]he administration shall not collect an assessment ... after the effective date of any reduction of the federal medical assistance percentage ... applicable to this state to less than eighty [percent].” This acts as a condition on the entire statute, which would remove the assessment entirely if the federal government were to change its funding of the program in the future. This condition is not a limit on the amount or method by which the administrator may impose the hospital assessment, but instead acts to terminate the entire statute should federal funding fail. Accordingly, it is not a “limit” on the assessment itself under Article 9, Section 22(C)(2). B. Attorney’s Fees. ¶ 22 Appellants requested attorney’s fees pursuant to Arizona Rule of Civil Appellate Procedure Rule 21(a), citing A.R.S. §§ 12-341, -348, 35-213, and the private attorney general doctrine. Because Appellants have not prevailed on appeal, we decline to award fees. CONCLUSION ¶ 23 A.R.S. § 36-2901.08 creates an assessment that falls within the exception of Article 9, Section 22(C)(2) of the Arizona Constitution. Accordingly, it was constitutionally enacted by a majority, rather than a super-majority, of the legislature. . We cite to the current version of applicable statutes or rules when no revision material to this case has occurred. . The superior court originally dismissed the legislators' claim for lack of standing; however, this court subsequently reversed that decision. Biggs v. Cooper, 234 Ariz. 515, 522, ¶ 20, 323 P.3d 1166 (App. 2014). The supreme court affirmed this court’s ruling. Biggs v. Cooper ex rel. County of Maricopa, 236 Ariz. 415, 420, ¶ 21, 341 P.3d 457 (2014). . The Health System Alliance of Arizona, in its amicus brief, raises the "enrolled bill rule” as a jurisdictional ground to preclude our review. "[I]t is the rule that amici curiae are not permitted to create, extend, or enlarge issues beyond those raised and argued by the parties." Town of Chino Valley v. City of Prescott, 131 Ariz. 78, 84, 638 P.2d 1324 (1981) (citing City of Tempe v. Prudential Ins. Co. of Am., 109 Ariz. 429, 510 P.2d 745 (1973)). And in any event, our supreme court has made clear that appellants have legal standing, and that this court has jurisdiction to review the substance of the claims. See Biggs v. Cooper ex rel. County of Maricopa, 236 Ariz. 415, 418, ¶ 7, 341 P.3d 457 (2014) giving the legislature exclusive authority to decide whether Section 22 applies to a particular bill would eliminate Article 9, Section 22's ability to act as a limiting provision on the legislature's power.’’) (quotation omitted). . Appellants’ opening brief argues against this presumption, citing cases where statutes were found to be unconstitutional. E.g., Dobson v. State ex rel. Comm'n on Appellate Court Appointments, 233 Ariz. 119, 309 P.3d 1289 (2013) (legislature's amendment of the judicial nomination system violated the state constitution). We take notice that this presumption is rebuttable, but the party challenging the validity of a statute bears the burden of proving that the legislation is unconstitutional. E.g., State v. Casey, 205 Ariz. 359, 362, ¶ 11, 71 P.3d 351 (2003); Chevron Chem. Co. v. Superior Court, 131 Ariz. 431, 438, 641 P.2d 1275 (1982). .Appellees contend that an assessment can be defined broadly to include a tax, and therefore the distinction between “taxes” and "assessments” under Article 9, Section 22 is inapplicable. However, such an interpretation would render the specific omission of the word "tax” under Section 22(C)(2) meaningless when the language of the provision, under subsection (B), specifically listed categories of "tax” as a separate class from ”fee[s] and assessment[s]”. See Ariz. Const, art. 9, § 22(B)(1)—(2), (5). Because we presume a statute does not enact "superfluous or reiterative” language, we decline to in terpret assessment to include any tax under Section 22. See Phoenix Newspapers, Inc. v. Dep't of Corrections, 188 Ariz. 237, 244, 934 P.2d 801 (App. 1997); see also Herman v. City of Tucson, 197 Ariz. 430, 434, ¶ 14, 4 P.3d 973 (App. 1999) ("[W]e must avoid interpreting a statute so as to render any of its language mere surplusage..,.”). . The current rules set forth by the director exclude several categories of hospitals, including those operated by the state or designated as a short-term, psychiatric, rehabilitation, children’s, or special hospital. Arizona Administrative Code ("A.A.C.”) § R9-22-730(I). . In their motion for summary judgment filed on May 14, 2015, Appellants conceded the levy benefited hospitals. . Section 36-2901.09 creates a special fund entitled the "hospital assessment fund” where the revenues collected from the assessment set forth in § 36-2901.08 are deposited. A.R.S, § 36-2901.08(F), Notably, the monies collected therein cannot revert to the state general fund to be used for another public purpose. A.R.S. § 36-2901.09(C)(1). . Appellants also claim the exemption factors and joint legislative budget committee ("JLBC”) review requirements under § 36-2901.08(C) and (D) act as a formula or limit, but conceded in their original complaint that the director is not required to consider these factors or gain approval from the JLBC. . The appellants admitted the director "has full discretion” in their complaint.

CHIEF JUSTICE BALES, opinion of the Court: V 1 Arizona Rule of Evidence 410(a)(4) requires a court to exclude statements made by a defendant during plea discussions with a prosecutor if the discussions do not result in a guilty plea. This case concerns whether statements made in furtherance of a deferred prosecution agreement are protected by Rule 410(a)(4). We hold that this evidentiary rule does not apply to discussions about deferred prosecution and that a knowing waiver of its provisions does not require specifically referencing the rule. I. ¶ 2 In 2013, a private security guard found Dustin Gill in a restroom stall with several grams of marijuana. The State charged Gill with possession or use of marijuana, a class 6 felony. In June 2014, Gill rejected a plea agreement during a comprehensive pretrial conference. In July, the State reduced Gill’s charge to a class 1 misdemeanor. At a September 3 settlement conference, Gill agreed to participate in a drug treatment program through the Treatment Assessment Screening Center (“TASC”) in return for the State deferring the prosecution. ¶3 Immediately after accepting the deferred prosecution agreement, Gill and his attorney met with a TASC representative to register for the diversion program. During the meeting, Gill completed a form titled, “Maricopa County Attorney/TASC Drug Diversion Program Statement of Facts.” On the form, Gill initialed that he understood his Miranda rights and avowed that “I fully understand that what I have written here may be used against me in a court of law should I fail to satisfactorily complete the TASC program.” When required to describe the facts of the offense on the form, Gill wrote the following admission: “The marijuana was found in the bathroom on the ground in my possession.” ¶ 4 In December 2014, the State resumed the prosecution because Gill had failed to attend TASC seminars and had tested positive for alcohol and marijuana while in the TASC program. Gill subsequently moved to suppress the statements he gave to TASC on September 3, arguing in part that they were made during plea discussions and consequently protected by Rule 410. The trial court denied Gill’s motion. ¶ 5 After a bench trial, the trial court found Gill guilty, suspended his sentence, and placed him on one year of unsupervised probation. Gill appealed. Rejecting Gill’s arguments that his statements to TASC were inadmissible under Rule 410(a)(4), the court of appeals held that the statements were not made to a prosecutor during plea discussions and Gill had, in any event, waived the rule’s protections. State v. Gill, 240 Ariz. 229, 230-31 ¶¶ 7-9, 377 P.3d 1024, 1025-26 (App.2016). ¶ 6 We granted review to address whether Rule 410(a)(4) applies to deferred prosecution agreements, a legal issue of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and AR.S. § 12-120.24. II. ¶ 7 We review a trial court’s admission of evidence for an abuse of discretion, State v. Tucker, 215 Ariz. 298, 313 ¶ 46, 160 P.3d 177, 192 (2007), and we review de novo the interpretation of the Arizona Rules of Evidence. State v. Romero, 239 Ariz. 6, 9 ¶ 11, 365 P.3d 358, 361 (2016). ¶ 8 Rule 410(a)(4) provides that “a statement made during plea discussions with an attorney for the prosecuting authority” is not admissible against the defendant who participated in the plea discussions “if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.” See also Ariz. R. Crim. P. 17.4(f) (“The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Arizona Rule of Evidence 410.”). Gill argues that his statements to TASC are inadmissible because they were made in furtherance of plea discussions, the TASC representative acted as the prosecutor’s agent, and Gill did not waive Rule 410’s protections. A, ¶ 9 Gill first contends that his statements to TASO are protected by Rule 410(a)(4) because they were made in furtherance of a plea discussion. In rejecting this argument, the court of appeals held that Rule 410(a)(4) did not apply because discussions about deferred prosecution are not plea discussions and Gill made his statements to TASC “after he rejected a plea offer.” Gill, 240 Ariz. at 230 ¶ 7, 377 P.3d at 1025. Whether statements are protected by Rule 410 first depends on whether plea discussions, in fact, occurred. We look to the record to answer this question. ¶ 10 On September 3, Gill attended a settlement conference with his father, his attorney, a Maricopa County prosecutor, and a court commissioner. The commissioner noted that the settlement conference concerned whether Gill would proceed to tidal or “participate in [TASC] diversion.” No other option was mentioned. As the commissioner described the benefits of TASC and the risks of trial, Gill’s father interjected that his son would have to “plead guilty” in order to participate in TASC. Immediately, the commissioner and prosecutor both corrected Gill’s father, emphasizing that Gill would not be pleading guilty but agreeing to “deferred prosecution.” After the commissioner clarified the TASC program as “diversion in lieu of prosecution,” Gill’s father asked again whether his son would have to plead guilty. This time, both the commissioner and Gill’s counsel emphasized that Gill would not have to do so in order to enter TASC. The commissioner then concluded the conference by giving Gill time to speak with his father about either proceeding to trial or participating in TASC. Later that day, Gill completed his TASC registration paperwork, including the Statement of Facts form in which he admitted to possessing marijuana. The State then suspended Gill’s prosecution while he participated in TASC. ¶ 11 The record reflects that the September 3 settlement conference concerned only the alternatives of a trial or a deferred prosecution agreement, and did not involve a plea offer or agreement. Neither the September 3 transcript nor the minute entry states that Gill was offered or rejected a plea agreement. Indeed, the fact that the court, prosecutor, and Gill’s own counsel twice explained that Gill would not have to plead guilty in order to participate in TASC underscored that the September 3 settlement conference did not involve a plea agreement. ¶ 12 Moreover, as the court of appeals correctly noted, discussions about deferred prosecution are categorically different from plea discussions, A plea discussion entails the prosecutor and defendant negotiating whether the defendant will plead guilty or no contest to a criminal offense in exchange for some concession by the prosecutor on any aspect of the disposition of the case. See Ariz. R. Evid. 410(a)(1)—(2) (noting discussions about “a guilty plea” or “no contest plea”); Espinoza v. Martin, 182 Ariz. 145, 147, 894 P.2d 688, 690 (1995) (defining plea negotiations on “any aspect of the disposition of the case” pursuant to Arizona Rule of Evidence 17.4(a) to mean that “‘the State and the defendant may bargain both as to the plea of guilty and as to the sentence to be imposed.’ ”) (quoting State v. Superior Court, 125 Ariz. 575, 677, 611 P.2d 928, 930 (1980)); see also United States v. Levy, 578 F.2d 896, 901 (2d Cir.1978) (“Plea bargaining implies an offer to plead guilty upon condition. The offer by the defendant must, in some way, express the hope that a concession to reduce the punishment will come to pass.”). ¶ 13 A deferred prosecution discussion, on the other hand, involves a defendant and prosecutor negotiating whether the defendant will participate in “a special supervision program” in which the state “divert[s] or defer[s], before a guilty plea or a trial, the prosecution of a person who is accused of committing a crime[.]” AR.S. § 11-361. A defendant participates in this supervision program before “a guilty plea or a trial,” and so it is a type of pretrial diversion. Id. If the defendant satisfactorily completes the pretrial supervision program, the court dismisses the charges. Ariz, R. Grim. P. 38.3(b). A deferred prosecution agreement can result in a dismissal of all charges, whereas a guilty plea will not because the defendant formally admits committing a criminal offense. See DeNaples v. Office of Comptroller of Curren cy, 706 F.3d 481, 489 (D.C. Cir.2013) (noting that “[a] plea bargain, for instance, would not be a pretrial diversion, no matter its similarity to pretrial diversion for other purposes”). Thus, discussions about deferred prosecutions differ from plea discussions and therefore are not governed by Rule 410 or Arizona Rule of Criminal Procedure 17.4(f). ¶ 14 Contrary to Gill’s contention, the September 3 settlement conference did not begin as a plea discussion and then morph into a discussion about deferred prosecution. Although Rule 410 conceivably could apply if plea negotiations also involve discussions about deferred prosecution, no such circumstances existed here. Because no plea discussion occurred on September 3, Rule 410 does not apply. We add, however, that courts should not limit Rule 410 more narrowly than the rule’s text. Just because a defendant makes statements after rejecting a plea offer does not necessarily mean that those subsequent statements were not made during plea discussions. The category of statements made “during plea discussions” is larger than merely statements made “before rejecting a plea offer,” because plea discussions may involve a series of offers, rejections, and counter-offers before they are successfully concluded or terminated. We therefore disagree with the court of appeals’ suggestion that Rule 410 does not apply merely because Gill made his statements after rejecting a plea offer. B, ¶ 16 Because the issue is recurring, we also address Gill’s argument that, although the TASC representative was not an attorney, Rule 410 should nevertheless apply because the representative was the prosecutor’s agent. The court of appeals rejected this argument because Rule 410 only protects statements made to “an attorney for the prosecuting authority” and the TASC representative was not an attorney. Gill, 240 Ariz. at 230 ¶ 8, 377 P.3d at 1025. ¶ 16 Arizona courts have implicitly recognized that Rule 410 extends to a prosecutor’s agents. See State v. Campoy, 220 Ariz. 539, 543 ¶ 6, 548 ¶ 25, 207 P.3d 792, 796, 801 (App. 2009) (holding that Rule 410 protected statements made by defendant to two police detectives pursuant to a free talk agreement with no prosecutor present). Some federal courts and state supreme courts have expressly reached the same conclusion. See, e.g., United States v. McCauley, 716 F.3d 1119, 1126 (8th Cir.2013) (holding that Rule 410’s protection extends to agents with express or implied authority to negotiate on behalf of prosecutor); Clutter v. Commonwealth, 364 S.W.3d 135, 138 (Ky.2012). We agree with those decisions and therefore reject the State’s contention that Rule 410 only applies to attorneys for the prosecuting authority and not to agents authorized by prosecutors to negotiate pleas. ¶ 17 Although Rule 410 extends to the prosecutor’s agents, the TASC representative here was not an agent for purposes of negotiating a plea. Whether a private party acts as a state agent depends on 1) the government’s knowledge and acquiescence and 2) the intent of the private party. See State v. Martinez, 221 Ariz. 383, 391-92 ¶ 31, 212 P.3d 75, 83-84 (App. 2009). Gill maintains that the TASC representative was a state agent because the name of the county attorney’s office appears .on the Statement of Facts form and TASC requires an admission of guilt on that form pursuant to the county attorney’s mandate. ¶ 18 However, these facts do not make the TASC representative the prosecutor’s agent for purposes of negotiating a plea. As previously noted, Gill did not negotiate a plea during the September 3 settlement conference. Although the prosecutor told Gill at the conference that he had to make an admission to TASC in order to participate in the diversion program, the TASC representative obtained Gill’s admission on the Statement of Facts form because the prosecution required it as a condition for the deferred prosecution. At most, the TASC representative acted as the prosecutor’s agent for purposes of effecting the deferred prosecution agreement. Because the TASC representative was not the prosecutor’s agent for purposes of negotiating a plea, Rule 410 does not apply. C. ¶ 19 Even if Gill’s statements had been subject to Rule 410(a)(4), he waived the Rule’s protections. Gill, however, argues that his waiver was ineffective because it was not knowingly made. We address this issue because it too is recurring and offers an alternative ground for our decision. (He has not disputed, and we do not address, the volun-tariness of his waiver or whether it allowed the government to use his statements in its case-in-chief.) ¶ 20 “In interpreting Arizona’s evi-dentiary rules, we look to federal law when our rule is identical to the corresponding federal rule[.]” Hernandez v. State, 203 Ariz. 196, 198 ¶ 10, 62 P.3d 765, 767 (2002). Arizona’s Rule 410(a)(4) mirrors its federal counterpart. See Fed. R. Evid. 410(a)(4). In interpreting Federal Rule 410, the United States Supreme Court has held that a Rule 410 waiver is enforceable “absent some affirmative indication that the agreement was entered into unknowingly or involuntarily.” United States v. Mezzanatto, 513 U.S. 196, 210, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995). Thus, a waiver of Rule 410 must be knowing and voluntary. ¶ 21 On appeal, Gill contends that his waiver was unknowing because his waiver agreement did not specifically refer to Rule 410. However, a knowing waiver of Rule 410 only requires a defendant to have “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” See In re Andre M., 207 Ariz. 482, 484 ¶ 7, 88 P.3d 552, 554 (2004) (quoting Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). A waiver agreement need not specifically reference the evidentiary rule being waived. See Mezzanatto, 513 U.S. at 197, 115 S.Ct. 797. ¶ 22 Here, Gill recognized that he was waiving any right not to have his statements to TASC used against him at trial. During the September 3 settlement conference, the prosecutor told Gill that “if you were to fail TASC ... that TASC paperwork could be used against you at trial.” The commissioner also made clear that Gill could opt for trial instead of making an admission to TASC. When Gill completed the Statement of Facts form in the presence of his attorney, he initialed the notations that he made “this statement without coercion and of [his] own free will” and that he “fully understood] that what [he] ha[d] written here may be used against [him] in a court of law should [he] fail to satisfactorily complete the TASC program.” Both he and his attorney signed the form. These facts indicate that in choosing to make statements to TASC, Gill recognized that the statements could be used against him if he failed to complete the program. Thus, Gill knowingly gave up his right to object to their admissibility, which would include objections based on Rule 410. III. ¶ 23 For the foregoing reasons, we vacate the opinion of the court of appeals and affirm Gill’s conviction and the penalty imposed by the trial court.

OPINION ESPINOSA, Judge: ¶ 1 John Peck appeals the trial court’s judgment dismissing his petition for dissolution on grounds of lack of personal jurisdiction over his wife, Sabine Peck. He also contends that, even if jurisdiction was lacking, he was nonetheless “entitled to have an Arizona court terminate his marriage.” For the following reasons, we affirm the conclusion that the court did not have jurisdiction over Sabine, but we remand for further proceedings regarding the dissolution of the marriage. Factual and Procedural Background ¶ 2 In reviewing the trial court’s dismissal for lack of personal jurisdiction, we view the facts in the light most favorable to John. See In re Consol. Zicam Prod. Liab. Cases, 212 Ariz. 85, ¶ 7, 127 P.3d 903, 907 (App. 2006). The salient facts in this case are essentially undisputed. John and Sabine were married in Switzerland in 2001. Sabine is a German citizen who resides and is employed in Spain, and John resides in Tucson. Throughout their marriage, the couple have lived separately and apart in Switzerland, England, and Spain. In June 2014, John moved to Tucson while Sabine remained in Spain. Sabine has never resided in Arizona, but she visited John in Tucson on several occasions throughout 2014 and 2016 “in an effort to reconcile their marriage” and co-signed the lease on his Tucson apartment. ¶3 In January 2016, John filed a petition for dissolution of marriage without minor children in the Pima County Superior Court, alleging the trial court had personal jurisdiction over the parties because he was “a resident of and domiciled in Pima County,” “Arizona [wa]s the last matrimonial domicile of the parties[,] and [Sabine] has caused numerous events to occur in Arizona including execution of a Contract for Home Rental.” Sabine was served with the petition in Spain pursuant to Ariz. R. Fam. Law P. 42(A) and in compliance with the Hague Convention. ¶4 Sabine filed a motion to dismiss for lack of personal jurisdiction, arguing she had “not established domicile in Arizona” and lacked sufficient minimum contacts with Arizona to permit the exercise of in personam jurisdiction over her. John responded that personal jurisdiction over Sabine was appropriate because her “conduct ... caus[ed] [his] move to Arizona and her other conduct in Arizona,” including making statements that she intended to move to Arizona and cosigning the lease on John’s apartment, satisfied jurisdictional requirements. ¶ 5 In a signed written ruling, the trial court determined that Sabine did not have sufficient minimum contacts with Arizona to subject her to divorce proceedings in the state and dismissed the petition for lack of personal jurisdiction. John filed a motion for reconsideration, arguing he had established a prima facie case of jurisdiction over Sabine, and she had “not denied” the allegations in his opposition. From this conclusion, he asserted the court was required to accept his claims as true and exercise jurisdiction over Sabine. The court denied John’s motion, he timely appealed, and we have jurisdiction pursuant to AR.S. §§ 12-120.21(A)(1) and 12-2101(A)(3). See Garza v. Swift Transp. Co., 222 Ariz. 281, ¶¶ 15-16, 213 P.3d 1008, 1011 (2009) (section 12-2101(A)(3) provides jurisdiction when non-final order precludes party from obtaining ultimate judgment). Personal Jurisdiction ¶ 6 In the context of proceedings for the dissolution of marriage, A.R.S. § 25-312 authorizes the superior court to make provision for child custody, child support, the maintenance of either spouse, and the disposition of property, “[t]o the extent it has jurisdiction to do so.” It is against this backdrop that we consider whether the trial court had personal jurisdiction over Sabine. John argues the court erred in determining it lacked jurisdiction over Sabine because her purposeful acts “directed at Arizona” and her “breach of [their] contract” to relocate to Tucson provided sufficient contacts for the forum to assert its jurisdiction over her. “When a defendant challenges the existence of personal jurisdiction, the plaintiff must come forward with facts establishing a prima facie showing of jurisdiction, at which time the burden shifts to the defendant to rebut the showing.” Ariz. Tile, L.L.C. v. Berger, 223 Ariz. 491, ¶ 8, 224 P.3d 988, 990 (App. 2010). ¶ 7 A petitioner cannot establish a prima facie showing with bare allegations and must come forward with facts, established by affidavit or otherwise, supporting jurisdiction. Van Heeswyk v. Jabiru Aircraft Pty., Ltd., 229 Ariz. 412, ¶ 6, 276 P.3d 46, 50 (App. 2012). Nonetheless, the court should resolve any conflicts “in the affidavits and pleadings” in the petitioner’s favor. Ariz. Tile, 223 Ariz. 491, ¶ 8, 224 P.3d at 990, quoting Macpherson v. Taglione, 158 Ariz. 309, 312, 762 P.2d 596, 599 (App. 1988). We will not set aside any findings of fact made by the trial court in reaching its jurisdiction determination unless clearly erroneous, see Bonner v. Minico, Inc., 159 Ariz. 246, 253-56, 766 P.2d 598, 605-06 (1988); see also Bushelman v. Bushelman, 246 Wis.2d 317, 629 N.W.2d 795, 803 (Wis. Ct. App. 2001), but we review de novo the court’s dismissal of claims for lack of personal jurisdiction, Van Heeswyk, 229 Ariz. 412, ¶ 6, 276 P.3d at 50. “Arizona courts may exercise personal jurisdiction to the maximum extent allowed by the United States Constitution.” Planning Grp. of Scottsdale, L.L.C. v. Lake Mathews Mineral Props., Ltd., 226 Ariz. 262, ¶ 12, 246 P.3d 343, 346 (2011). For personal jurisdiction over a non-resident to exist, the defendant must have sufficient minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Williams v. Lakeview Co., 199 Ariz. 1, ¶ 6, 13 P.3d 280, 282 (2000); see also Int’l Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 90 L.Ed, 95 (1945). ¶ 8 Personal jurisdiction may be either general or specific and, under both forms, “the constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum [s]tate.” Williams, 199 Ariz. 1, ¶ 6, 13 P.3d at 282, quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). A non-resident defendant is subject to general jurisdiction when her contacts with the state are so substantial or continuous that she may be haled into court in the forum, even for claims unrelated to her contacts with the forum. Id. We consider only specific jurisdiction here because John concedes none of the traditional indicia of general jurisdiction are present. ¶ 9 Specific jurisdiction may be exercised over non-resident defendants to the extent permitted by the Due Process'Clause of the United States Constitution. In re Consol. Zicam Prod., 212 Ariz. 85, ¶ 10, 127 P.3d at 908, Due process is satisfied if (1) the defendant purposefully availed herself of the privilege of conducting activities in Arizona; (2) the claim arises out of or results from the defendant’s activities related to Arizona; and (3) the exercise of jurisdiction would be reasonable. Id. Although the personal jurisdiction inquiry is “holistic,” it is also “case-by-case,” and the existence of specific jurisdiction depends upon only those minimum contacts that are related to the cause of action. Planning Grp., 226 Ariz. 262, ¶¶ 15-16, 25, 246 P.3d at 347, 349 (“[Contacts by a defendant with the forum state ... not directly related to the asserted cause of action ... cannot sustain the exercise of specific jurisdiction.”). ¶ 10 “The requirement that a nexus exist between a defendant’s activities in the forum state and a plaintiffs cause of action provides the key to exercising specific jurisdiction.” Williams, 199 Ariz. 1, ¶ 11, 13 P.3d at 283. In other words, a petitioner’s claim must result from “ ‘alleged injuries that arise out of or relate to [the defendant’s] ... activities’ in the forum state.” Id. quoting Burger King, 471 U.S. at 472, 105 S.Ct. 2174; see also Rollin v. William V. Frankel & Co. Inc., 196 Ariz. 350, ¶ 14, 996 P.2d 1254, 1258 (App. 2000) (same). If the petitioner’s claim and the non-resident defendant’s forum-related activities are not sufficiently connected, dismissal is warranted. In re Consol. Zicam Prod., 212 Ariz. 85, ¶ 11, 127 P.3d at 908. The focus of the analysis is “the relationship between the defendant, the forum, and the litigation.” Williams, 199 Ariz. 1, ¶ 11, 13 P.3d at 283. ¶ 11 In her motion to dismiss, Sabine asserted she was a citizen of Germany who had never resided or been domiciled in the United States. She further stated John left their marital residence in Spain in June 2014 and moved to Tucson, that she did not move with him, and that the parties had lived separately after that time. Sabine visited John in Tucson for brief periods in 2014 and 2015 in an effort to reconcile their marriage, and during one of those visits, she co-signed the lease on John’s apartment because he told her “she was required to sign [it].” She maintained she did not “have a copy of the lease, did not intend to submit herself to jurisdiction in Arizona, and did not consult with an attorney [as to] the effect of signing the lease.” She also asserted she did not have “significant minimum contacts with the state.” ¶ 12 In response, John admitted several of Sabine’s assertions, including that she had “visited with [him] in Tucson ... for brief periods in 2014 and 2015, in an effort to reconcile their marriage,” but he disputed some others, including Sabine’s claim that she lacked significant minimum contacts with Arizona. John also submitted an affidavit asserting the parties “began discussions regarding a move to the United States” and “mutually agreed that [John] would explore employment in ... three [U.S.] cities and ultimately permanently move to the United States.” According to John, he immediately sought employment in Tucson pursuant to this agreement, and Sabine had agreed this was an appropriate choice because “that is where [he] ha[s] family,” John further stated that Sabine had agreed to move to Tucson if he was offered a job there, and that she told his mother and a hairstylist that she planned to move to Tucson, ¶ 13 John also reported that, during one of Sabine’s visits, the parties “jointly selected an apartment where [they] decided [John] would live while [they] were seeking a home to purchase,” and they both signed the lease. On other visits, they spent time with a realtor looking at houses, and Sabine told the realtor, “I know we’ve taken a lot of your time but we’ll be buying something soon.” Finally, John asserted he “would never have moved to Tucson but for the mutual agreement we made to permanently relocate to Tucson in order to be together.” ¶ 14 Even viewing the facts in the light most favorable to John, see In re Consol. Zicam Prod., 212 Ariz. 85, ¶ 7, 127 P.3d at 907, we disagree that Sabine’s contacts with Arizona satisfy minimum contacts requirements. Sabine’s promise to move to Arizona is not dispositive because John did not allege that Sabine unilaterally decided not to move to Tucson, or that her failure to do so gave rise to him filing the petition for dissolution. Cf. Williams, 199 Ariz. 1, ¶ 11, 13 P.3d at 283; see also Engle v. Engle, 412 Pa.Super. 425, 603 A.2d 654, 658 (1992) (party’s contract with out-of-state individual insufficient to establish minimum contacts with the forum state). Further, it does not appear—nor did John allege—that Sabine’s act of co-signing the lease on his apartment gave rise to or related to his decision to file for dissolution. Cf. Williams, 199 Ariz. 1, ¶ 11, 13 P.3d at 283. As the trial court noted below, while Sabine’s entering into the lease with John “could be a basis for finding speci[fic] jurisdiction on a subsequent breach of contract action, it is not the type of purposeful action that would support a claim of jurisdiction in an unrelated divorce proceeding.” Moreover, John having never introduced a copy of the lease and there being no information about its terms or period, there is no evidence relating it to the parties’ separation or John’s filing for divorce. Indeed, John’s affidavit indicates the lease was entered during 2014, but he filed for dissolution in January 2016, at least suggesting a standard 12-month residential lease could have expired before the divorce was contemplated. Thus, John has not shown a nexus between Sabine’s activities in the forum state and his cause of action. See id.; see also Muckle v. Superior Court, 102 Cal.App.4th 218, 125 Cal.Rptr.2d 303, 306, 311 (2002) (finding no personal jurisdiction over former resident husband whose only “purposefully directed ... activ-it[y]” before wife filed for divorce was to “provide some shelter” by purchasing a mobile home for her). ¶ 15 Moreover, even if the minimum contacts requirement was satisfied here, we agree with Sabine that it would not be fair or reasonable to require her “to defend this matter in Arizona.” See Asahi Metal Indus. Co., Ltd. v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (ultimate determination of reasonableness depends on several factors, including burden on defendant, interests of the forum state, and plaintiffs interest in obtaining relief); see also Tiscornia v. Tiscornia, 154 Ariz. 376, 377, 742 P.2d 1362, 1363 (App. 1987) (state’s interest best served when careful inquiry made into reasonableness of asserting jurisdiction by weighing burden on foreign party against minimal state interests). ¶ 16 Arizona has minimal contacts with this marriage and dissolution, and several factors militate against the court’s exercising its jurisdiction over Sabine. Cf. Tiscornia, 154 Ariz. at 377, 742 P.2d at 1363. The parties never resided together in the United States, let alone Arizona, and they spent the entire duration of their thirteen-year marriage in Europe until John relocated to Tucson in 2014. Sabine has never lived in the United States, and there is no evidence that the parties jointly own any property in Arizona. Moreover, they allegedly entered into a Posh-Marital Agreement in Europe before John moved to Arizona, and it appears most—if not all—of their joint property is held in Europe. Thus, considering the heavy burden on Sabine, a foreign defendant, the international context of the matter, and the slight interests of the state, we conclude these factors militate against the exercise of personal jurisdiction over Sabine and support the trial court’s determination. Cf Planning Grp., 226 Ariz. at 270-71 ¶¶ 38-39, 246 P.3d at 351. Dissolution of the Marriage ¶ 17 John alternatively argues that, even if personal jurisdiction over Sabine was lacking, he nevertheless was entitled to a divorce because he met the jurisdictional requirements of A.R.S. § 25-312 and “[t]he outright dismissal of this matter was, thus, plain error.” That statute provides that the court “shall enter a decree of dissolution of marriage if it finds ... [t]hat one of the parties, at the time the action was commenced, was domiciled in this state ... for ninety days prior to filing the petition for dissolution of marriage,” that certain conciliation provisions do not apply, and that the marriage is irretrievably broken. § 25-312. ¶ 18 The trial court “may exercise this limited jurisdiction to dissolve the marriage without violating due process, even though it lacks personal jurisdiction over a non-resident party, as long as the court does not determine the monetary obligations of the parties.” Taylor v. Jarrett, 191 Ariz. 550, ¶ 7, 959 P.2d 807, 809 (App. 1998). Although it appears John satisfied at least the first requirement of § 25-312, he did not raise this argument below and did not request in his petition, in his response to the motion to dismiss, or in his motion for reconsideration, that the trial judge make the requisite findings and grant a “divisible divorce” pursuant to § 25-312 notwithstanding personal jurisdiction over Sabine and disposition of marital property. The issue is therefore subject to waiver. See Englert v. Carondelet Health Network, 199 Ariz. 21, ¶ 13, 13 P.3d 763, 768 (App. 2000) (failure to raise issue in trial court constitutes waiver on appeal). ¶ 19 John has proffered no argument or authority entitling him to a remand on this issue and we are aware of none. Nevertheless, Sabine has not argued waiver; indeed, at oral argument, her counsel indicated she would not have objected to a divisible divorce, and the issuance of an ex parte divorce decree entails a relatively straightforward procedure. Thus, in our discretion under these circumstances, and as a matter of conserving judicial resources and those of the parties, we return this case to the trial court to consider this issue. Cf. Ritchie v. Krasner, 221 Ariz. 288, ¶ 63, 211 P.3d 1272, 1289 (App. 2009) (addressing merits of waived issue partially “in the interests of judicial economy”); State v. Steffy, 173 Ariz. 90, 93, 839 P.2d 1135, 1138 (App. 1992) (addressing merits of issue not raised below partially because ap-pellee had not argued waiver). Attorney Fees ¶20 Both parties request attorney fees on appeal pursuant to AR.S. § 25-324 and Rule 21(a), Ariz. R. Civ. App. P. Section 25-324 requires that we examine both the financial resources of the parties and the reasonableness of their positions. See Leathers v. Leathers, 216 Ariz. 374, ¶ 22, 166 P.3d 929, 934 (App. 2007). The record discloses no recent information as to the parties’ relative financial resources, but both sides have presented reasonable arguments on appeal, and we therefore conclude each should bear its own appellate attorney fees and costs. Disposition ¶ 21 For the foregoing reasons, the trial court’s ruling that it lacked jurisdiction over Sabine is affirmed, but its dismissal of John’s petition for dissolution is reversed and remanded for further proceedings consistent with this opinion. . For convenience and to avoid confusion, we refer to the parties by their first names. . Although we view the facts in his favor, we reject John’s argument that courts are "required to accept all well pleaded facts in the Petition, as well as all facts set forth in [his] Opposition and Affidavit.” See Gatecliff v. Great Republic Life Ins. Co., 154 Ariz. 502, 506-07, 744 P.2d 29, 33-34 (App. 1987) (court may consider documentary and testimonial evidence to resolve jurisdictional challenges). . Garza refers to A.R.S. § 12-2101(D), which was subsequently renumbered as §12-2101(A)(3). 2011 Ariz. Sess. Laws, ch. 304, § 1. . We note John did not submit a copy of the lease or make it part of the record. . John repeatedly characterizes the couple’s plan to move to Tucson as a "contract” but we are unaware of a legally cognizable claim for breach of contract based on a spouse’s breaking a promise to relocate, and John has provided no on-point authority to support such a claim. Moreover, we note that John has not asserted a breach of contract claim against Sabine. .John does allege for the first time in his reply brief that "the filing of this action results from [Sabinel's breach of th[e] contract" to relocate to Arizona, but that argument comes too late and is waived. See Romero v. Sw. Ambulance, 211 Ariz. 200, ¶¶ 6-7 & n,3, 119 P.3d 467, 470-71 & n.3 (App. 2005) (argument raised for first time in reply brief waived). . At oral argument, John's counsel asserted the parties hold a "leasehold" property interest in Tucson, but there is no such evidence in the record, John's affidavit only having generally referred to an apartment lease being jointly executed in 2014. . Although referred to by both parties on appeal, this document too was not made part of the record.

OPINION THUMMA, Judge: ¶ 1 Adam Mark Reiher was convicted of various driving while under the influence (DUI) offenses in Phoenix Municipal Court. Reiher unsuccessfully appealed those convictions in the Superior Court. Now, he argues this court should apply State v. Valenzuela, 239 Ariz. 299, 371 P.3d 627 (2016), and Brown v. McClennen, 239 Ariz. 521, 373 P.3d 538 (2016), retroactively and vacate his convictions. Because this court lacks appellate jurisdiction over Reiher’s challenge, the appeal is dismissed. FACTS AND PROCEDURAL HISTORY ¶ 2 In November 2013, police arrested Rei-her and chai’ged him with DUI pursuant to Arizona Revised Statutes (A.R.S.) section 28-1381(A)(1), (2) (2017). After advising Reiher of his rights pursuant to Miranda v. Ari zona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a police officer read him the implied consent affidavit (admin per se) form. After being asked to do so, Reiher agreed to a blood test, signed a consent form and blood was drawn and analyzed, resulting in additional DUI charges being filed against him. ¶3 Pretrial, Reiher unsuccessfully moved to suppress the blood test results, arguing that the blood draw was not voluntary and that the implied consent law was unconstitutional. After Reiher submitted the matter to the court, the court found him guilty of various DUI offenses, including two extreme DUI offenses, and imposed consequences. ¶4 Reiher unsuccessfully appealed to the Superior Court, arguing that the blood draw was not voluntary and that the implied consent law was unconstitutional. On appeal to this court, Reiher no longer challenges the constitutionality of AR.S. § 28-1321. Instead, he relies on Valenzuela and Brown, which held that a driver’s consent to blood testing, obtained after a police officer advised that “Arizona law requires you to submit” to such testing, was not “freely and voluntarily given.” Valenzuela, 239 Ariz. at 301 ¶ 2, 371 P.3d 627; Brown, 239 Ariz. at 523 ¶ 2, 373 P.3d 638 (similar for watercraft operator). In this appeal, Reiher argues Valenzuela and Brown should apply retroactively and, as a result, his convictions should be vacated. DISCUSSION ¶ 5 This court lacks appellate jurisdiction to hear an appeal from “a final judgment of the superior court in an action appealed from a justice of the peace or municipal court” unless, as applicable here, the appeal “involves the validity of a ... statute.” A.R.S. § 22-375(A). The State argues that, given Reiher is now only arguing the retroactivity of Valenzuela and Brown, this court lacks appellate jurisdiction. ¶ 6 In State v. Bowser, 1 CA-CR 15-0601, 2016 WL 7438452 (Ariz. App. Dec. 27, 2016) (mem. dec,), this court dismissed a putative appeal in a similar case on this same ground. After first noting this court’s limited appellate jurisdiction under A.R.S. § 22-375(A), Bowser observed that the defendant “no longer ehallenge[d] the validity of § 28-1321,” and that as a result, this court “laek[s] jurisdiction over [defendant’s] appeal pursuant to A.R.S. § 22-875(A).” Bowser, 2016 WL 7438452, at *2 ¶ 6. Reiher is no longer challenging the constitutionality of A.R.S. § 28-1321. Accordingly, this court lacks appellate jurisdiction. See Bowser, 2016 WL 7438452 at *2 ¶ 4 (“[t]his court has no jurisdiction over an appeal from a judgment of the superior court affirming a conviction entered by a municipal court unless the action ‘involves the validity of a ... statute.’ ”) (quoting A.R.S. § 22-S75CA) (2016)), CONCLUSION ¶ 7 Because this court lacks appellate jurisdiction, Reiher’s appeal is dismissed. . Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. . Although Bowser is not precedential, it properly may be cited and relied upon by this court. See Ariz. R. Sup. Ct. 111(C). . Even if special action jurisdiction could be exercised absent appellate jurisdiction, this court declines to do so given that Reiher made no such request and he can seek relief pursuant to Ariz. R. Crim. P. 32. See Bowser, 2016 WL 7438452 at 1-2 ¶¶ 6-7 (citing authority).

OPINION STARING, Presiding Judge: ¶ 1 Darren Winegardner appeals his conviction for sexual conduct with his minor stepdaughter, contending the trial court erred by precluding him from impeaching the victim with evidence of her prior misdemean- or shoplifting conviction. Because we conclude the trial court did not err, we affirm Winegardner’s conviction and sentence. Factual and Procedural Background ¶ 2 We view the evidence in the light most favorable to sustaining Winegardner’s conviction. State v. Foshay, 239 Ariz. 271, ¶ 2, 370 P.3d 618, 620 (App. 2016). One night in October 2012, Winegardner argued with his wife, Rachel, whose fifteen-year-old daughter, L.B., was present in the home. Rachel left the house, taking L.B.’s younger siblings with her. L.B., however, stayed behind with Winegardner. ¶ 3 After Rachel had left, Winegardner and L.B. began drinking, and she became intoxicated. Winegardner told L.B. it was “really common for stepdads and daughters to engage in sexual activities,” and asked if she wanted to have sex with him. They then engaged in intercourse. ¶ 4 The next day, after L.B. told her mother what had occurred, Rachel contacted the police, who had L.B. taken to the Child Advocacy Center (CAC), where she underwent a forensic interview and a medical examination. The examining physician obtained swabs for a DNA analysis, and an external genital swab subsequently revealed sperm matching Winegardner’s DNA profile. ¶ 5 The state indicted Winegardner on one count of sexual conduct with a minor. He was convicted after a jury trial, and the trial court sentenced him to a mitigated term of 3.6 years’ imprisonment. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033. Discussion ¶ 6 Prior to L.B.’s trial testimony, Wine-gardner informed the trial court he intended to impeach her with a 2016 shoplifting conviction because it was a “crime of moral turpitude.” The court precluded him from doing so. After her direct examination, he again sought to introduce evidence of the prior conviction, and, again, the court refused. ¶ 7 Winegardner challenges the trial court’s preclusion rulings on two bases: Rule 609, Ariz. R. Evid., required the court to permit evidence of the prior conviction because shoplifting involves “deceit or false presentation”; and the court’s refusal to allow impeachment with the conviction violated his rights to due process and confrontation. “When reviewing a ruling on the admissibility of prior convictions, this court will overturn the trial court’s determination only if it proves to have been a clear abuse of discretion.” State v. Green, 200 Ariz. 496, ¶ 7, 29 P.3d 271, 273 (2001). “An error of law constitutes an abuse of discretion.” State v. Bernstein, 237 Ariz. 226, ¶ 9, 349 P.3d 200, 202 (2016). We review constitutional issues de novo. Foshay, 239 Ariz. 271, ¶ 34, 370 P.3d at 625. Rule 609 ¶ 8 Rule 609(a)(2) provides that a party may impeach a witness’s character for truthfulness with “any crime regardless of punishment ... if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.” Winegardner asserts the misdemeanor offense of shoplifting “necessarily involves some sort of deceit or false presentation” and, thus, the trial court was required to admit evidence of the conviction. We disagree. ¶ 9 The parties do not cite, and we have not located, any published Arizona opinion directly addressing whether Rule 609(a)(2) permits a misdemeanor shoplifting conviction to be used for impeachment. Our rules of evidence, however, were adopted from the Federal Rules of Evidence. State v. Johnson, 132 Ariz. 5, 8, 643 P.2d 708, 711 (App. 1981). For that reason, “[w]hen interpreting an evidentiary rule that predominantly echoes its federal counterpart, we often look to the latter for guidance.” Green, 200 Ariz. 496, ¶ 10, 29 P.3d at 273; see also Johnson, 132 Ariz. at 8, 643 P.2d at 711 (“in the absence of Arizona precedent as a guide to interpreting our [Rules of Evidence], we will look to the federal courts”). The language of Rule 609(a)(2), Ariz. R. Evid., follows that of Rule 609(a)(2), Fed. R. Evid., and the historical underpinnings of the federal rule, federal case law interpreting it, as well as our own precedent, support the conclusion that shoplifting is not a “dishonest act or false statement” within the meaning of Rule 609(a)(2), Ariz. R. Evid. ¶ 10 At common law, conviction for an “infamous crime” rendered a person “completely incompetent as a witness.” 1 McCormick on Evidence § 42, at 184-85 (Kenneth S. Broun ed., 6th ed. 2006). Generally, an infamous crime was an offense “implying such a dereliction of moral principle, as carries with it a conclusion of a total disregard to the obligation of an oath.” 2 John Henry Wig-more, Evidence in Trials at Common Law § 520, at 729 (rev. Chadbourn 1979), quoting Simon Greenleaf, Evidence § 373 (1842). Infamous offenses typically included treason and almost every felony, because they were punishable by death, and crimes “deemed of so grave a character as to render the offender unworthy to live, [were] considered as rendering him unworthy of belief in a Court of Justice.” Id. at 729-30. ¶ 11 Historically, convictions for crimes considered crimen falsi also disqualified a witness from testifying. Id. at 729. Such crimes involved not only “the charge of falsehood,” but also those “which may injuriously affect the administration of justice, by the introduction of falsehood and fraud.” Id. at 730. Crimen falsi crimes included “forgery, perjury, subornation of perjury, suppression of testimony by bribery, or conspiracy to procure the absence of a witness, or other conspiracy, to accuse one of a crime, and barratry.” Id. (footnotes omitted); accord Ex Parte Wilson, 114 U.S. 417, 423, 5 S.Ct. 935, 29 L.Ed. 89 (1885). ¶ 12 The enactment of Rule 601, Fed. R. Evid., ended the use of the prior common law grounds for disqualification in federal courts and converted issues of witness competency “into questions of witness credibility to be decided by the jury.” 27 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure: Evidence § 6002, at 17 (1990). Specifically, “[c]onviction of crime as a ground of impeachment [became] subject [to] Rule 609.” Revised Draft of Proposed Rules of Evidence for the United States Courts and Magistrates, 51 F.R.D. 315, 384 (1971). ¶ 13 Rule 609(a)(2), Fed. R. Evid., permits a party to attack “a witness’s character for truthfulness by evidence of a criminal conviction ... if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.” Since the rule’s enactment, the Advisory Committee has maintained that offenses to which the rule applies are: [C]rimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit or falsification bearing on the accused’s propensity to testify truthfully. Fed. R. Evid. 609 advisory committee notes, 1974 enactment; see also id. 1990 amends., 2006 amends. Rule 609, Fed. R. Evid., therefore, did not enlarge the common law catego ry of infamous crimes. See Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, 46 F.R.D. 161, 297 (1969) (“common law-grounds of disqualification transposed into grounds of impeachment”). ¶ 14 In State v. Malloy, our supreme court determined the “phrase ‘dishonesty oi-false statement’ ” contained in the contemporaneous version of Rule 609(a)(2), Ariz. R. Evid., “should be construed narrowly to include only those crimes involving some element of deceit, untruthfulness, or falsification.” 131 Ariz. 126, 127, 639 P.2d 315, 317 (1981). The rule requires a misdemeanor offense to “necessarily involve” one of those elements in order for it to be admissible; it is irrelevant that the underlying facts of a particular conviction might have involved a dishonest act or false statement. Id. at 128, 639 P.2d at 318. The court also noted that narrow construction of the rale has “the advantage of being in conformity with the current federal practice” and that the Arizona Rules of Evidence “were modeled after the Federal Rules with the hope that evidence practices would be similar in state and federal court and that federal case law would be useful in Arizona.” Id. at 128 & n.3, 639 P.2d at 318 & n.3; see also State v. Hatch, 225 Ariz. 409, ¶ 11, 239 P.3d 432, 434 (App. 2010) (“Like its federal counterpart, Rule 609(a) traces its origins to the common law’s total prohibition on the testimony of those previously convicted of ‘crimes of infamy’: treason, felonies, and crimen falsi.”). The Malloy court also concluded Rule 609 did not permit impeachment with evidence of a prior conviction for misdemeanor attempted burglary, and that, while “[cjriminal acts such as theft and robbery commonly carry a connotation of dishonesty,” they do not necessarily “establish the trait of untruthfulness,” which is the primary concern behind Rule 609. 131 Ariz. at 127-28, 639 P.2d at 317-18. ¶ 15 Likewise, in Johnson, 132 Ariz. at 8, 643 P.2d at 711, we concluded a “misdemean- or conviction for conspiracy to commit burglary did not involve ‘dishonesty or false statement’” as contemplated by Rule 609, Ariz. R. Evid. In reaching that conclusion, we looked to the decision in United States v. Ortega, 561 F.2d 803, 805-06 (9th Cir. 1977), which held a conviction for misdemeanor shoplifting did not qualify under Rule 609(a), Fed. R. Evid., as an offense involving “dishonesty or false statement.” Johnson, 132 Ariz. at 8, 643 P.2d at 711. Undoubtedly, “[a]n absence of respect for the property of others is an undesirable character trait, but it is not an indicium of a propensity toward testimonial dishonesty.” Ortega, 561 F.2d at 806. Further, “[h]uman experience does not justify an inference that a person will peijure himself from proof that he was guilty of petty shoplifting.” Id, ¶ 16 Thus, in light of the history and purpose of Rule 609, Ariz. R. Evid., the decisions in Malloy and Johnson, and persuasive federal precedent, we reject classifying shoplifting as a “dishonest act or false statement” within the meaning of Rule 609(a)(2). The trial court did not err by precluding Winegardner from impeaching L.B. with her misdemeanor shoplifting conviction. ¶ 17 Winegardner also asserts we should characterize shoplifting as an offense involving dishonesty or false statement in light of case law designating the offense as a crime of moral turpitude. See State v. Superior Court (Espinosa), 121 Ariz. 174, 176, 589 P.2d 48, 50 (App. 1978). Acts of moral turpitude involve “actions which ‘adversely reflect on one’s honesty, integrity, or personal values.’” Benitez v. Dunevant, 198 Ariz. 90, ¶ 16, 7 P.3d 99, 104 (2000), quoting State ex rel. Dean v. Doing, 161 Ariz. 297, 300 n.3, 778 P.2d 1193, 1196 n.3 (1989), overruled on other grounds by Derendal v. Griffith, 209 Ariz. 416, ¶ 23 & n.8, 104 P.3d 147, 163-64 & n.8 (2006). Winegardner asks us to consider “moral turpitude” as a factor when determining whether a conviction is admissible under Rule 609(a)(2). We decline to do so. ¶ 18 As noted, in construing the phrase “dishonesty or false statement,” the court in Malloy distinguished between those crimes which connote dishonesty and those “which establish a trait of untruthfulness.” 131 Ariz. at 127, 639 P.2d at 317. Employing that analysis here, a conviction for misdemeanor shoplifting would “carry a connotation of dishonesty,” but it would not bear on a witness’s propensity for testimonial untruthfulness. See id. Due Process and Confrontation Clause ¶ 19 Winegardner also contends the trial court’s refusal to permit impeachment of L.B. using her misdemeanor shoplifting conviction violated his rights to due process and confrontation. He argues “any evidence that could impeach [L.B.’s] credibility was both material and critical” to his defense and “[r]efusing to allow cross-examination on [her shoplifting conviction] unconstitutionally limited [his] right to present a complete defense.” Because he did not raise this argument below, however, we review only for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). ¶ 20 “The Due Process Clause of the Fourteenth Amendment to the United States Constitution guarantees a criminal defendant ‘a meaningful opportunity to present a complete defense.’ ” State v. Gilfillan, 196 Ariz. 396, ¶ 19, 998 P.2d 1069, 1075 (App. 2000), quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). “The right to conduct a complete defense includes the right to cross-examine witnesses.” Foshay, 239 Ariz. 271, ¶ 36, 370 P.3d at 626. The right to “effective cross-examination” is guaranteed by the Confrontation Clause of the Sixth Amendment. Davis v. Alaska, 415 U.S. 308, 315, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). ¶ 21 The right to present a complete defense may be jeopardized “by evidence rules that ‘infring[e] upon a weighty interest of the accused’ and ‘are arbitrary or disproportionate to the purposes they are designed to serve.’” Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006), quoting United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (alteration in Holmes). “Of course, the right to present relevant testimony is not without limitation,” and “ ‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.’ ” Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Trial judges may “limit reasonably a criminal defendant’s right to cross-examine a witness ‘based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.’ ” Michigan v. Lucas, 500 U.S. 145, 149, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991), quoting Delaware v. Van Arsdall, 476 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); see also United States v. Nobles, 422 U.S. 225, 241, 96 S.Ct. 2160, 45 L.Ed.2d 141 (1975) (“The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system .... ”). ¶22 Precluding Winegardner from cross-examining L.B. about her shoplifting conviction did not infringe on his right to present a complete defense or cross-examination. Evidence of the conviction was not necessary to reveal any “possible biases, prejudices, or ulterior motives” behind her testimony. See Davis, 415 U.S. at 316, 94 S.Ct. 1105; State v. McDaniel, 127 Ariz. 13, 15, 617 P.2d 1129, 1131 (1980) (“if the trial judge has excluded testimony which would clearly show bias, interest, favor, hostility, prejudice, promise or hope of reward, it is error”), quoting State v. Holden, 88 Ariz. 43, 65, 352 P.2d 705, 714 (1960). And, while “[t]he introduction of evidence of a prior crime is ... a general attack on the credibility of a witness,” Davis, 415 U.S. at 316, 94 S.Ct. 1105, L.B.’s conviction appears to bear only tangentially on her credibility, if at all, see Malloy, 131 Ariz. at 127-28, 639 P.2d at 317-18 (“Misdemeanors which do not contain an element of deceit or falsification are not simply low in probative value, but more often than not wholly lack such probative value.”). ¶ 23 Notwithstanding his failure to establish any error, fundamental or otherwise, Winegardner has also failed to demonstrate that any prejudice resulted from the preclusion of L.B.’s conviction. See Henderson, 210 Ariz. 561, ¶¶ 26-27, 115 P.3d at 608-09 (showing required to establish prejudice from fundamental error differs in each case depending on the alleged error; defendant must show a reasonable jury could have reached a different result). At trial, Winegardner did not contest that his sperm was found on the victim’s genital area. Rather, his defense was that, as a result of his involuntary and unknowing ingestion of sleep medication, he did not knowingly, intentionally, or voluntarily engage in sexual intercourse with L.B. He introduced expert testimony describing the potential side effects of the medication, which include amnesia and parasomnia. During cross-examination, he elicited from L.B. her previous admissions that she had put a sleeping pill in his drink. He also elicited evidence of several prior inconsistent statements about the events that night—including a second interview with the CAC in which she claimed she had fabricated the entire incident. In light of the undisputed DNA evidence supporting Winegardner’s conviction, as well as the extensive evidence impeaching L.B.’s credibility already in the record, we cannot conclude a reasonable jury could have reached a different result had it been apprised of L.B.’s misdemeanor shoplifting conviction. Disposition ¶ 24 For the foregoing reasons, we affirm Winegardner’s conviction and sentence. . Deoxyribonucleic acid. . The record does not include evidence of the offense or the details, but at oral argument counsel agreed it could have only been a violation of A.R.S. § 13-1805 involving property, which was not a firearm, valued at less than one thousand dollars. . Rule 601, Fed. R. Evid., in part, provides that, "Every person is competent to be a witness unless these rules provide otherwise.” Similarly, Rule 601, Ariz. R. Evid., provides that, "Every person is competent to be a witness unless these rules or an applicable statute provides otherwise." . See also United States v. Dunson, 142 F.3d 1213, 1215 (10th Cir. 1998) (shoplifting does not per se involve dishonesty or false statement); United States v. Amaechi, 991 F.2d 374, 379 (7th Cir. 1993) ("shoplifting does not in and of itself qualify as a crime of dishonesty under Rule 609”); United States v. Sellers, 906 F.2d 597, 603 (11th Cir. 1990) ("crimes such as theft, robbery, or shoplifting do not involve ‘dishonesty or false statement’ within the meaning of Rule 609(a)(2)”); McHenry v. Chadwick, 896 F.2d 184, 188 (6th Cir. 1990) (shoplifting not a basis for Rule 609(a)(2) impeachment); United States v. Ashley, 569 F.2d 975, 979 (5th Cir. 1978) ("a conviction for shoplifting is not a conviction involving dishonesty or false statement within the meaning of Fed. R. Evid. 609(a)(2)”). . Winegardner relies on cases that fail to account for the historical common law underpinning of Rule 609. See People v. Segovia, 196 P.3d 1126, 1132 (Colo. 2008) (holding act of shoplifting "probative of truthfulness” but misdemeanor shoplifting conviction is not); Webb v. State, 663 A.2d 452, 461 (Del. 1995) (prior case law defined "dishonesty or false statement" to include "dishonest conduct or stealing”); State v. Melendrez, 91 N.M. 259, 572 P.2d 1267, 1269 (N.M. Ct. App. 1977) (relying on "common human experience"), quoting Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967); State v. Gallant, 307 Or. 152, 764 P.2d 920, 921-23 (1988) (interpreting "dishonesty" after voter initiative); State v. Shaw, 328 S.C. 454, 492 S.E.2d 402, 403-04 (S.C. Ct. App. 1997) (rejecting federal precedent); State v. Butler, 626 S.W.2d 6, 11 (Tenn. 1981) (based on prior precedent, shoplifting involved dishonesty); State v. Brown, 113 Wash.2d 520, 782 P.2d 1013, 1027-31 (1989) (considering ordinary meaning and state court decisions). . For example, rules may not be relied upon to exclude evidence of a third party's guilt simply because there is strong evidence of defendant’s guilt, Holmes, 547 U.S. at 328-31, 126 S.Ct. 1727, per se prohibit the admission of a defendant’s "hypnotically refreshed testimony,” Rock v. Arkansas, 483 U.S. 44, 56-62, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), "exclude competent, reliable evidence bearing on the credibility of a confession," Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), prohibit impeachment of a defendant's own witness who had previously confessed to the charged crime, Chambers v. Mississippi, 410 U.S. 284, 295, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), or bar "alleged accomplice^] from testifying on behalf of the defendant,” Washington v. Texas, 388 U.S. 14, 22, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

DE CONCINI, Justice. Thelma Tiller, plaintiff-appellant, brought suit against Dr. Ernest E. Von Pohle, defendant-appellee, for injuries to her person which she allegedly suffered by reason of defendant’s negligence in the performance of a surgical operation upon her. The facts as appear in the record show that on or about December 26, 1946, plaintiff was in ill health and consulted defendant, a licensed practicing physician and surgeon, who diagnosed plaintiff’s condition as being extra-uterine pregnancy and who advised her that an immediate abdominal operation was necessary. On that day plaintiff submitted to such operation which was performed by defendant, assisted by a Dr. R. W. Rosenquist. Plaintiff alleges that immediately following said operation she developed severe pains in her abdominal region at about the same place where defendant had made the incision, and for two years thereafter suffered extreme and excruciating pain in that part of her body. Following this operation plaintiff, on several occasions, consulted defendant and complained to him of her painful condition; on these occasions defendant assured plaintiff that the operation had been a complete success and that her suffering was caused by common gas pains. At other times, following the operation, defendant diagnosed plaintiff’s malady as anemia and tilted uterus. Various treatment was rendered plaintiff by defendant but the alleged pain and suffering persisted. From the testimony of various witnesses it appears that following this operation plaintiff lost about thirty pounds, was unable to eat solid foods, was unable to sleep, vomited frequently, became extremely nervous, and was so physically incapacitated that it was impossible for her to fulfill her duties as a wife and mother. On March 18, 1949, plaintiff underwent a second abdominal operation performed by Dr. Rosenquist who was assisted by defendant Von Pohle. During the performance of this second operation there was, according to defendant, removed from plaintiff’s large bowel, where it joins the small intestine, a cloth sack approximately ten inches wide by sixteen or eighteen inches long. The proof shows that these two operations were the only ones ever performed on plaintiff’s body. At the close of plaintiff’s evidence defendant moved for a directed verdict on the ground that plaintiff offered no evidence tending to prove negligence on the part of the defendant, which motion was granted. From the judgment entered thereon and from the denial of plaintiff’s motion for a new trial and for arrest of judgment, plaintiff appeals. Plaintiff assigns that the trial court erred in granting this motion for a directed verdict. In support of this assignment of error plaintiff contends that where a patient submits herself to the care and custody of a surgeon for the purpose of having an abdominal operation performed while the patient is under anesthetic and unconscious; and where later, upon a following operation a cloth sack of considerable size is found in the patient’s body in the immediate area wherein such operation was performed; and where the only operations ever performed on the patient were the first in which the surgeon’s negligence is alleged, and the second one wherein the cloth sack is discovered; the patient is entitled to the aid of the doctrine of res ipsa loquitur in a malpractice action based on the alleged negligence of the surgeon who performed the operation. This court considers plaintiff’s proposition to be correct. In the case of Eisenbeiss v. Payne, 42 Ariz. 262, 25 P.2d 162, 164, this court pointed out the conditions necessary to employ the rule of evidence known as res ipsa loquitur. In quoting 45 C.J. 1193, Sec. 768, the court said: “ * * * In such cases, ‘Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care.’ * * * In other words, when such circumstances are shown to exist, the inference arises that defendant is guilty of negligence, and, in the absence of explanation by defendant, justifies a recovery in damages for such wrong. * * * ” See, also, 65 C.J.S., Negligence, § 220(2). Mr. Prosser ' states the conditions, necessary for the application of the principle of res ipsa loquitur to be: “ * * '* (1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of defendant; (3) it must'not have been due to any vol untary action or contribution on the part of the plaintiff.” Prosser, Torts, p. 295. The doctrine of res ipsa loquitur has been clearly defined and advanced by this court in the following cases: Phen v. All American Bus Lines, Inc., 56 Ariz. 567, 110 P.2d 227; Sawyer v. People’s Freight Lines, Inc., 42 Ariz. 145, 22 P.2d 1080; Pickwick Stages Corp. v. Messinger, 44 Ariz. 174, 36 P.2d 168. A further treatment of the doctrine at this point would be redundant. It is enough to say that the facts of the instant case are sufficient to invoke that doctrine. The sole remaining question is whether, under the evidence, the plaintiff was entitled to have the question of negligence go to the jury. To that interrogatory, we answer in the affirmative. We again refer to Mr. Prosser who ably sets out the procedural effect of rebutting evidence on the res ipsa doctrine: “When the defendant in turn offers evidence to show that the event was not due to his negligence, there is the further question of the extent to which the principle of res ipsa loquitur will survive in the face of such proof. It is generally agreed, except in two or three jurisdictions, that the burden of 'proof is not upon the defendant, and that he is required to do no more than to introduce evidence which, if believed, will permit the jury to say that it is as probable that he was not negligent as that he was. Against this evidence must be balanced the inference of negligence to be drawn from the circumstances of the case, which has weight so long as reasonable men may still draw it from the facts in evidence. * * * “If the defendant seeks a directed verdict in his favor, he must produce evidence which will destroy any reasonable inference of negligence, or so completely contradict it that reasonable men could no longer accept it. * * * If the defendant proves definitely by uncontradicted evidence that the occurrence was caused by some outside agency over which he had no control, * * * the inference of negligence is no longer permissible and the verdict is directed for the defendant. The res ipsa case has been overthrown by showing that it is not a res ipsa case.” Prosser, Torts, pp. 308-309. Defendant’s rebutting evidence consists of his own testimony on cross-examination under the statute, in which he said he made no incision into the plaintiff’s intestinal tract in the first operation and that the cloth sack was found in the intestinal tract during the second operation. Defendant insists that it would be an impossibility for the cloth sack to have-traveled from the abdomen, where he alleged he made the incision in the first operation, into the bowel where he claims it was found during the second. Defendant admitted on oral argument that it was “quite inconceivable” that the cloth sack could have entered the plaintiff’s intes tines through her mouth, yet he claims that though “a very rare act” it could have been inserted into her rectum. Such an act, however, the plaintiff emphatically denies ever occurred. In order to accept defendant’s contentions it would be necessary to believe that the sack could have crawled or traveled up through three or four feet of plaintiff’s intestines, against the peristaltic motion thereof, and lodged itself in a ball or mass where 'it was allegedly found. This contention appears to us to border on the ridiculous. In the absence of expert testimony to support such a possibility we are inclined to believe that reasonable men would be justified in believing that defendant’s explanation suggests an improbability that borders on an impossibility. In any event defendant’s explanation wholly fails to destroy the reasonable inference of negligence. While defendant’s motion for a directed verdict was granted at the close of plaintiff’s case, still the only evidence with which defendant attempted to rebut the inference of defendant’s negligence under the doctrine of res ipsa was the testimony of defendant himself. Plaintiff was entitled to have, the jury consider the credibility of defendant’s testimony and also the possibility of whether plaintiff’s injury could have been occasioned by some agency outside of defendant’s control. The trial court erred in failing to permit the jury to consider these matters. The judgment of the trial, court is reversed and the cause is remanded for a new trial not inconsistent with this opinion. UDALL, C. J., -and STANFORD, PHELPS and LA PRADE, JJ., concur.

DE CONCINI, Justice. In the Superior Court of Maricopa County, in the cause of Everett and Georgia C. Hampton, et al., plaintiffs, v. Arizona Conference Corporation of Seventh Day Adventists, defendant-petitioner, the complaint charged defendant with violation of the building restrictions contained in the deed to its property in the University Park addition to the city of Tempe, state of Arizona, by the construction of a church where the restrictions provide the premises be used for residential purposes only. Plaintiffs secured an order requiring defendant to show cause why a temporary injunction should not be issued enjoining defendant from proceeding further with the construction of said church. The regularly scheduled hearing on plaintiffs’ order to show cause for a temporary injunction was heard and taken under advisement by respondent in the instant case, Honorable Ralph Barry, Judge of the Superior Court. Respondent then issued a written order denying a temporary injunction against petitioner. In an accompanying unsigned memorandum respondent stated that, after having taken a view of the premises involved, he was of the opinion that the use to which the property surrounding that on which petitioner was erecting its church was being put, made it unnecessary to give further force and effect to the deed restrictions against petitioner’s property. Following this order plaintiffs filed a request for change of judge based on an affidavit of bias and prejudice of respondent. Respondent granted plaintiffs’ request, but before a new judge was selected, defendant petitioned this court for an alternative writ of prohibition to prevent respondent from assigning the case. As a premise for the writ defendant asserts that it was improper for respondent to grant the request and assign the case on the basis of an affidavit of bias and prejudice which was made after respondent had already ruled on litigated matters. The writ was issued together with an order to show cause why it should not be made péfmanent. Respondent answered that under Article 6,. section 7, of the Arizona Constitution, he has the right to assign a case to another judge; and under Section 21-107, A.C.A. 1939, he must assign it when an affidavit of bias and prejudice is filed against him. Both parties have filed extensive briefs and have raised several technical objections to the timing of the hearings on the motions for change of judge and summary judgment in the court below. Stripping the briefs of their superfluities, we have three basic questions to answer in disposing of this case. First, was the request for a change of judge based on an affidavit of bias and prejudice timely filed after the court had heard evidence and ruled on the motion for a temporary injunction, under Section 21-107, A.C.A.1939? The answer is, no. One of the best reasoned cases on this point is State ex rel. Shufeldt v. Armijo, 39 N.M. 502, 50 P.2d 852, 855, in which it was said: “We hold that an affidavit of prejudice is timely made if filed and called to the attention of the court before it has made any ruling on any litigated or contested matter whatsoever in the case, either on a motion, demurrer, or plea of the party making the affidavit, or on the motion, demurrer, or plea of any other party to the action, of the hearing of which the party making the affidavit has been given notice, otherwise it is not timely made. * * * ” The instant case falls squarely in that category. Here a hearing was had and a ruling made on a litigated and contested matter. A motion for a change of judge untimely filed need not be granted, Mosher v. Wayland, 62 Ariz. 498, 158 P.2d 654. Article 6, section 7, of the Arizona Constitution provides: “(Transfer of judges.) —The judge of any superior court may hold a superior court in any county at the request of the judge of the superior court thereof, and, in case of the disqualification or the inability of the judge thereof to serve, and upon the request of the governor, shall do so.” Under the Constitution a judge may assign a case to another judge to try without first being disqualified. Arizona Mutual Auto Insurance Co. v. Bisbee Auto Co., 22 Ariz. 376, 197 P. 980. However in that case and in others construing this provision, the judges assigning their cases did so before hearing and ruling on any litigated matters. That provision of the Constitution is not applicable when the judge has heard and ruled on contested matters. The second question is: Is prohibition the proper writ to prevent a judge who is not legally disqualified to try a case, because he has assumed jurisdiction and made rulings on litigated matters therein, from assigning that case to another trial judge? The answer is yes. In Conkling v. Crosby, 29 Ariz. 60, 239 P. 506, 508 we said: “ * * * Prohibition is available to challenge the qualifications of the judge as well as the jurisdiction of the court. * * * ” In that case, after the trial but before judgment, one of the litigants filed a request for a change of judge based on an affidavit of bias and prejudice. The trial judge denied bias and prejudice even though it was shown that he was indebted to one of the litigants. A writ of prohibition was there sought to prevent the judge from proceeding to judgment. This court held that prohibition was the proper remedy; however, the facts in that case did not warrant the writ being made peremptory, because the judge denied bias and prejudice. Inasmuch as the affidavit was untimely filed the judge was not prohibited from proceeding further. In the instant case an inverse situation prevails. However the same rule of law applies. The writ will lie to prohibit a judge from assigning a case in which it is his duty to preside. Third: May a judge disqualify himself after he has ruled on litigated matters where he is not biased and prejudiced, but solely for the reason that an untimely request based on bias and prejudice was filed against him ? The answer is, no. The rule is laid down in 48 C.J.S., Judges, § 93: “It is the duty of a judge, however, to exercise the judicial functions duly conferred on him by law, and he has no right to disqualify himself in the absence of a valid reason * * Citing Conkling v. Crosby, supra. In the instant case there is no showing of disqualification on the part of the judge to preside except the untimely affidavit which need not be considered. Therefore it is the duty of the trial judge to proceed with the trial of the cause. Hamilton v. Pendleton, 111 Okl. 55, 237 P. 611. The history of a judge’s duty is well stated in Benedict v. Seiberling, D.C., 17 F.2d 831, cited by petitioner. We hold that under the circumstances in this case it is the duty of the trial judge to proceed with the cause. The alternative writ of prohibition is hereby made peremptory. UDALL, C. J., and STANFORD, PPIELPS and LA PRADE, JJ., concur.

PER CURIAM. A motion for rehearing was granted in this case on the grounds' that the court should, under its broad equitable powers, modify or amend its opinion for the benefit of the public by eliminating- the hazard and unsightliness of an open irrigation ditch in the center of a dedicated street through Milton Groves subdivision. Subsequent to our decision and while motion for rehearing was pending, offers and counter offers of settlement between the parties were made. .Those efforts were in vain. One of the alternative propositions to alleviate the situation was made in writing by defendants Stamatis to> plaintiffs Johnson, to wit: “4. Restoration of the ditch to its original location, but use 14" file, installed at my expense, and covered to a depth of 18" or more. In this connection, I enclose copy of a letter from Hooper Concrete Pipe Company, which gives assurance that such installation would be satisfactory. Such tile could be installed at a cost of about $1.70 per foot, or somewhere around $2,000.” On April 9, 1951, this court entered a minute order setting forth two of the propositions submitted by defendants plaintiffs including No. 4 above; and ordered as follows: “The appellees (plaintiffs Johnson) are given five (5) days within which to elect one of these offers, and if no election is made the opinion will be modified to incorporate therein alternative No. 4, supra.” Plaintiffs Johnson having failed to' make such an election, this court has considered the matter and concludes that under its broad, equitable powers the court should permit appellants to tile the ditch on its original location in accordance with their offer. To permit appellants to tile the ditch will-not unduly impinge upon appellees’ easement nor even inconvenience them in their full enjoyment of the use for which it was acquired and for which it exists, as recognized and declared in our former opinion. A covered tile installation will not interfere with appellees’ property rights but will have the effect of conferring a benefit upon appellees. Where full recognition can be given to their property rights, then it would seem sensible to permit this capital improvement which will confer benefits not only upon the parties but the public as well. Relying upon appellants’ offer, the trial court is directed to modify the judgment by ordering defendants Stamatis to install the tile conduit on the original location, in accordance with the terms and conditions of the offer, within such time as the court shall fix. Upon completion of such installation, defendants will be relieved of all obligations in connection therewith and the burden of maintaining same will rest with plaintiffs Johnson, the owners of the easement. To the extent indicated, the judgment is modified, and as so modified is affirmed. UDALL, C. J., and STANFORD, LA PRADE, and DE QONCINI, JJ., and J. W. FAULKNER, Superior Court Judge, concur. PHELPS, J., being disqualified, the Honorable J. W. FAULKNER, Judge of the Superior Court of Mohave County, was called to sit in his stead.

DE CONCINI, Justice. Pursuant to an advertisement for bids for road construction on the Ashfork Flagstaff Highway by the Arizona State Highway Commission in 1949, Basich Brothers,, plaintiffs-appellees, submitted their bid in the manner and form provided by the commission. Accompanying the bid was plaintiffs’ certified check for $30,000 payable to the Treasurer of the state of Arizona, their “proposal guarantee,” i. e., as a “guarantee that plaintiff would, if awarded the contract, post a performance bond and formally execute said contract.” Plaintiffs were low bidder by $44,000. One Mitchell, an employee of plaintiffs, made several attempts, to have their check returned by the connmission alleging that in making their bid! they had overlooked various cost items.. Mitchell was advised that, “ * * * there-was only one reason the commission would fall back on to refuse the award to Basich, and that would be failure to make bond.”’ Mitchell then stated that if the Highway Commission would not relieve Basich Brothers of the contract, that they would go through with it. On August 4, 1949, plaintiffs’ attorney requested that Mr. Lefebvre, the State Highway Engineer, recommend a postponement in the award of the contract. Mr. Lefebvre declined to do so and said that the commission would consider the proposals and make the award on August 5. On that date the commission accepted plaintiffs’ bid and notified them by mail that they had been awarded the contract. The letter was received at plaintiffs’ office in San Gabriel, California, on August 8. On August 12, the following telegram from one of plaintiffs’ employees was received by the commission: “Confirming phone call to Mr. Perkins unable to return contract on Ashfork Flagstaff job by Monday 15th account R. L. and N. L. Basich have been out of town on urgent business expected back Tuesday. Respectfully ask for a few days extension of time.” On the same day the commission passed and adopted a resolution which in effect stated that in the event of the failure of plaintiffs to execute the construction contract and return it within ten days from the date of the award, the commission elected to annul the award, forfeit the “proposal guarantee” to the state, and to enter into a contract for the performance of the work with the next lowest bidder. On that day the commission telephoned and wired plaintiffs advising them of the passing of the resolution. On August 20, plaintiffs received a letter written by the commission on August 17, informing them that on August 16, their “proposal guarantee” had been forfeited and that the contract had been awarded to the next lowest bidder. Thereafter plaintiffs duly filed a claim for the return of the sum of $30,000 with the commission, the State Highway Engineer, and the State Auditor. The claim was disallowed. Plaintiffs brought an action in mandamus to have their claim approved. The matter was submitted for trial on an agreed statement of facts, the pertinent portions of which are set out above. The trial court granted plaintiffs’ motion for judgment against appellants, but granted the motions of the other defendants, the state of Arizona and the State Auditor, to dismiss plaintiffs’ complaint as to them. The writ of mandamus was made peremptory and the members of the commission were ordered to approve plaintiffs’ claim. From that order this appeal was taken. The respondents-appellant hereinafter referred to as the commission assign three errors which may be summarized as follows: That the lower court erred in holding that plaintiffs were entitled to the return of their $30,000 deposit, because the same had been legally forfeited to the state, and that mandamus was not the proper remedy because the action is against the state itself. The commission points out that the Standard Specifications for Road and Bridge Construction, of the Arizona Highway Department which were referred to in plaintiffs’ “proposal” and which were made a part thereof, provide that the contract must be signed together with a satisfactory bond, “within ten days after the date of the award” and “failure to execute a contract and file a satisfactory acceptance bond as provided herein within ten days from date of award, shall be just cause for the annulment of the award and the forfeiture of the proposal guarantee to the state * * Plaintiffs, on the other hand, rely on the terms of their proposal bid which provides, “That the undersigned further proposes to execute the contract agreement and furnish satisfactory bond within ten (10) days after notice of the award of the contract had been received." (Emphasis supplied). It is apparent that there is a conflict between the Standard Specifications and the “proposal.” A contract will be construed most strongly against the person making it. Hoover v. Odle, 31 Ariz. 147, 250 P. 993; Aldous v. Intermountain Building & Loan Ass'n, 36 Ariz. 225, 284 P. 353; Paine v. Copper Belle Mining Co., 13 Ariz. 406, 114 P. 964; Shannon Copper Co. v. Potter, 13 Ariz. 245, 108 P. 486. In the instant case the commission prepared and supplied the forms of the “proposal” and the Standard Specifications; therefore plaintiffs have the right to rely on the proposition of law that any conflicts therein will be construed most favorably to them. Furthermore the “proposal” was the instrument signed by the plaintiffs and therefore the provisions therein were specific in nature. The Standard Specifications were the overall rules under which the commission operates in letting contracts of the kind here involved; the provisions in it, therefore, may be considered to be general in nature. It is elementary that the special provision of the “proposal” would govern over the general provision of the Standard Specifications. DeMund v. Oro Grande Consolidated Mines, 56 Ariz. 458, 108 P.2d 770; Tyson v. Tyson, 61 Ariz. 329, 149 P.2d 674; 12 Am. Jur., Contracts, Sec. 244. The commission here seeks to invoke a forfeiture of plaintiffs’ $30,000. Generally forfeitures are abhorred in the law and the party seeking to avail himself of contractual provisions to work a forfeiture must comply strictly with all contract requirements. Glad Tidings Church v. Hinkley, 71 Ariz. 306, 226 P.2d 1016; Phoenix Title and Trust Co. v. Horwath, 41 Ariz. 417, 19 P.2d 82. The lower court tried this case on an agreed statement of facts and found for the plaintiffs. There is nothing in the record to indicate that plaintiffs had notice of the award until they received notice by mail on August 8. Under the terms of their proposal they were entitled to wait until August 18 to enter into the contract. The action of the commission in forfeiting plaintiffs’ “proposal guarantee” on August 12, to take effect on August 16, was therefore without sanction of law. The commission asks this court to infer from the facts-. and circumstances that the plaintiffs did have actual notice, or constructive notice, or as reasonable men, were put on inquiry. Those matters were before the lower court on an agreed statement of facts and the lower court found in favor of the plaintiffs. It is a well-settled proposition of law in this state that all intendments and presumptions are in favor of sustaining the judgment of the lower court. This court views all evidence and inferences therefrom in the light most favorable to supporting the judgment. In this case the agreed statement of facts supports the conclusion that plaintiffs had no notice until August 8th. The remaining question to be decided is: Is plaintiffs’ action in mandamus the proper remedy? The proposal and award were preliminaries looking toward the execution of a formal contract for the work to be performed. The commission then revoked its award so that the preliminaries were wiped out and the parties were in the same position as before the award was made. The commission had the right to revoke its award at any time before a formal contract was entered into because a contract with a public agency is not binding on the public agency until a formal contract is executed. Williston on Contracts (1936) Vol. 1, Sec. 31 says: “In the formation of public contracts the formalities required by law or by the request for bids, such as a written contract, or the furnishing of a bond, often indicate that even after acceptance of the bid no contract is formed, until the requisite formality has been complied with. * * * ” See Edge Moor Bridge Works v. Inhabitants of Bristol County, 170 Mass. 528, 49 N.E. 918; Franklin A. Snow Co. v. Commonwealth, 303 Mass. 511, 22 N.E.2d 599; Camp & West v. McLin, 44 Fla. 510, 32 So. 927; State ex rel. McCormick v. Howell, 3 Boyce 387, 26 Del. 387, 84 A. 871; McFarlane v. Mosier & Summers, 157 App.Div. 844, 143 N.Y.S. 221. After the commission revoked its award to plaintiffs and awarded the contract to another bidder, the plaintiffs were relegated to the position of an unsuccessful bidder. We believe an unsuccessful bidder would be entitled to the remedy of mandamus to secure the return of his “proposal guarantee” money because he would not have a speedy and adequate remedy at law. In an action at law he would be put to the task of suing the state and if victorious he would then have the burden of securing an appropriation from the legislature to pay his judgment. We will take judicial notice of the difficulty that might assail him, and it is probable that several sessions of the legislature would pass before an appropriation would be made. We think such a remedy would be neither speedy nor adequate. The next question is, did the commission have any discretion in declaring the forfeiture? In a proper case, where the low bidder refuses to enter into a formal contract and make satisfactory bond when all of the conditions of the “proposal” and 'Standard Specifications have been complied with by the commission, it does have the discretion to declare a forfeiture. However, it is not mandatory that it do so because the commission has the right to rej ect any and all bids at any time before a formal contract is entered into. In the instant case the commission had no discretion in the matter of declaring a forfeiture effective August 16th because plaintiffs had until August 18th to enter into the formal contract. There were neither facts nor circumstances which warranted their action of declaring a forfeiture because the plaintiffs were not notified of the award in accordance with the “proposal.” Such being the case, only one duty remained upon the commission, and that was the ministerial act of returning plaintiffs’ deposit as an unsuccessful bidder, as provided in the “proposal.” Under the undisputed facts the State Highway Engineer, in accordance with the resolution of the commission dated August 12, deposited the money with the State Treasurer. We have herein held that the resolution of forfeiture was without sanction of law because it was premature, so that the deposit in accordance with that resolution had no effect. Sec. 10-918, A.C. A. 1939, provides the manner in which moneys deposited with the State Treasurer subject to refund are accounted for. Public officers are presumed to do their duty; therefore the money should be in the State Treasury in accordance with the law, subject to refund, being money that had not accrued to the state. The money never ceased to be the money of the plaintiffs’; it therefore could not become the money of the state. There was a duty of trust placed on the commission regarding the deposits of all unsuccessful 'bidders, and that trust followed the money into the state treasury. The State Treasurer is not a party to this action and so no. writ of mandamus can be issued against him. However, for the guidance of the parties concerned we refer to the case of Calhoun v. Maricopa County Municipal Water Conservation Dist. No. 1, 37 Ariz. 506, 295 P. 785, 787. In that case the water district brought an action in mandamus to compel the County Treasurer to transfer to the credit of the district some delinquent tax penalties which had been collected by the County Treasurer for the district. In an earlier appeal of the same case, 35 Ariz. 541, 281 P. 465, the court held that the penalties in reality belonged to the district. The new County Treasurer set up as a defense in the latter reported case that the treasury was without funds to pay the district’s claim. The funds in question had been deposited in the general fund of the county treasury instead of being credited to the district. The court said: “The remedy of mandamus was not questioned throughout the proceedings, and it is not now, only incidentally in the motion to modify the writ. However that may be, we think that mandamus was the proper remedy, and it makes no difference whether the county has converted the district’s money or not. In State [ex rel. City of Cut Bank] v. McNamer, 62 Mont. 490, 205 P. 951, 954, mandamus was allowed to compel the county treasurer of Glacier county to pay over to the city of Cut funds belonging to the city but which had been diverted by the county treasurer. The court there said: “ ‘The above also disposes of the point made by defendant that mandamus will not lie in the case at bar for the reason that the county treasurer, if required to pay the sum due the city, would have to take the money that was already appropriated to other funds. “ ‘While we are fully aware of the rule that mandamus will not lie to compel the doing of something unauthorized by law or impossible of performance, yet in the instant case such a rule is inapplicable. In contemplation of law the city’s money is still in the county treasury, and the fact that the money has been diverted by the arbitrary act of the county treasurer into some other fund or funds does not excuse the treasurer from the duty of paying the same over to the city.’ sj: # sjc sfi % “There is nothing to the contention of defendant that if he is compelled to pay the district its money it will violate the state budget law. Accretions of this kind'are not a ‘source of revénue’ available to a county. It could not have been estimated as a resource of the county in making up the budget, and since under the budget law, sections 3097, 3098, -Revised Code of 1928, ‘no-debt, obligation, or liability’ could be incurred or created in excess of the budget estimates, the -board of supervisors had no-right to spend it.” See also City of Bisbee v. Cochise County, 44 Ariz. 233, 36 P.2d 559. Counsel for appellants admit the correctness of the above decisions but claim that they are not applicable here 'because there is no statute which places the duty on the commission as the statutes placed a duty on the Count}’- Treasurer in the above cases. We believe there is a specific statutory duty upon the commission to approve the claim of the plaintiffs. The Standard Specifications which were made a part of the original “proposal” provided that the “proposal guarantees” would be returned to the unsuccessful bidders. Plaintiffs' “proposal guarantee” was deposited in the state treasury and is now held there in accordance with Sec. 10-918, A.C.A.1939, as moneys subject to refund. That section provides in part as follows: “ * * * All disbursements fr.om such funds and contributions shall be made by the state treasurer on warrants of the state auditor, who shall issue such warrants only upon adequate vouchers approved by the person o.r persons authorized to approve the disbursements. * * * ” In this case the “person or persons” mentioned would be the commission or its delegated officer. Sec. 28— 201, A.C.A.1939, on mandamus, provides in part: “The writ of mandamus may be issued by the supreme or superior court on the verified complaint of the party beneficially interested, to any inferior tribunal, corporation, board, though the governor or other state officer be a member thereof, or person, to compel the performance of an act which the law specifically imposes as a duty resulting from an office, trust or station, * * * and there is not a plain, speedy and adequate remedy at law.” In view of the foregoing there devolved upon the members of the commission, by virtue of their “office, trust or station” the duty to approve plaintiffs’ claim for the return of their “proposal guarantee” in the sum of $30,000. Judgment affirmed. UDALL, C. J., and LA PRADE, J., concur.

PHELPS, Justice. This is an appeal from an order directing a verdict in favor of defendants-appellees and from orders denying plaintiffs-appellants’ motions to set aside the judgment, for summary judgment and for a new trial. The facts are that during the year 1948 appellants were engaged in produce farming in Pinal County, Arizona; that in March of that year they entered into an -oral agreement with Leonard Wernikoff and Robert James Stone (the latter acting as agent of Wernikoff in negotiating the transaction) to (1) market cantaloupes grown by appellants on a 165-acre tract, and (2) honeydews grown on a 60-acre tract during that year, and also for the growing of cantaloupes and honeydews on a 345-acre tract of land owned by appellants on a share-crop basis. Both Wernikoff and Stone were licensed commission merchants in Arizona, the former doing business as American Vegetable Growers, and the latter as Richstone Distributors. Pursuant to the provisions of the Fruit and Vegetable Standardization Act of Arizona each were bonded in the sum of $5000. The Firemen’s Fund Indemnity, a corporation, carried the coverage for Wernikoff and the Great American Indemnity Company, of New York, carried the coverage for Stone. The Arizona Fruit and Vegetable Standardization Act requires persons who are licensed to do business as commission merchants to keep correct records of every consignment of farm products received for sale and section 49-1016(a), A.C.A.1939, provides that: “Unless otherwise agreed in writing, remittance in full of the amount realized from any such sale, including all collections, overcharges, and damages, less the agreed commission and other charges, and accompanied by a complete statement of the transaction, shall be made to the consignor within ten (10) days after receipt of the money by the commission merchant.” Appellants were not paid for the melons grown by them on the 165-acre and the 60-acre tracts nor was there an accounting made to them therefor. Neither were they paid in full, nor an accounting made, for melons grown on the 345-acre tract cultivated on a share-crop basis. They therefore brought this action against both Wernikoff and Stone and the bonding companies on two separate counts praying for ait accounting and for a judgment against Wernikoff and Stone and their sureties for the amount found to-be due. The cause was tried to a jury and submitted on special interrogatories. Upon the answers given thereto the court entered judgment against both Wernikoff and Stone for the sum of $12,474.82 on the first cause of action and for $770.55 on the second cause of action from which no appeal was taken. On motion of appellants the court dismissed the second cause of action against appellees Firemen’s Fund Indemnity and Great American Indemnity Company, of New York. Subsequently, at the close of all the evidence, appellees presented their motion to the trial court for an instructed verdict in their behalf on the first cause of action which involved the handling of melons grown by appellants on the 165-acre and the 60-acre tracts. The motion for a directed verdict was based upon the ground “ * * * that the evidence fails to disclose liability upon either of the defendants or the amount thereof, and the proof fails to show liability in accordance with the obligations of the bonds as introduced in evidence by the plaintiffs.” The court granted the motion upon the ground “ * * * that the liability of each of said defendants was an individual liability as to the particular defendant they were sureties for, and that it does not extend to liability for Wernikoff and Stone as partners or as j oint venturers.” Appellants have assigned some thirteen errors all of which involve but one primary question for our determination. Did the court err in granting an instructed verdict in favor of appellees? This question can be answered only after a determination, first, of the relationship existing between Wernikoff and Stone, and second, the relationship existing between appellants and Wernikoff and Stone as created by the oral agreement of March, 1948. In order to determine these questions it will be necessary to analyze the evidence relating thereto. Apparently appellants’ position here is not in complete harmony with their position during the trial of the case. While they didn’t allege in their complaint the existence of a partnership between Wernikoff and Stone they did attempt, but failed, to prove such relation during the course of the trial. Singularly enough, however, appellees not only plead but introduced evidence to support their pleading that suchi partnership relation did not exist, while-here they are attempting to maintain the-position that such a partnership relation, did in fact exist. There is no express finding by the-trial court that Wernikoff and Stone were-partners although such relation is clearly implied in the court’s order directing a verdict for appellees. Stone did not attend! and testify at the trial. Wernikoff testified and emphatically denied that such a relation did exist between him and Stone and stated that Stone had no financial interest either in the share-crop agreement or the brokerage transaction. He stated he was not familiar with growing and marketing melons in the West and that he employed Stone to advise him on matters connected with the growing of melons here; that Stone was to act as his agent in selling the same wherever grown, and that he was to pay him $50 commission for each car sold. Wernikoff further testified that he advanced to Stone small amounts from time to time during the growing season and at one time advanced $500 to be applied on his commission of $50 per car. Had a partnership relation been established between Wernikoff and Stone the court’s order in directing a verdict for appellees would have been correct. A surety even for a partner is released from liability if there is a change in the members of the partnership. Trovatten v. Minea, 213 Minn. 544, 7 N.W.2d 390, 144 A.L.R. 1263. A careful study of the transcript of the evidence in the instant case, how•ever, compels the conclusion that no partnership relation existed between Wernikoff .and Stone during the period involved. There is no substantial evidence in the record upon which a finding of such a partnership relation could legitimately rest and it was reversible error for the trial court to so find. It is true the record discloses that Stone conducted most of the negotiations with Biancos leading up to the consummation of the oral agreement. But the most that can be gleaned from the conversation with Bianco from which the partnership relation could be inferred, was that Stone usually used the pronoun “we” in referring to what Wernikoff’s obligations were to be, under the terms of the or at agreement. There is no evidence whatever that Stone had any investment in the venture, that he advanced any money to grow the crop on the 345-acre tract, that he -ever drew a check on the funds used therefor, or that he was to share in the profits or the losses arising out of either of these transactions or that he had any control thereof except as the agent of Wernikoff. On the contrary the evidence is indisputable that Stone neither received any of the profits nor assumed any of the losses of the venture; that his sole interest was his agreement with Wernikoff to act in an advisory capacity during the growing season -and to act as his agent in marketing the melons upon an agreed commission of $50 ;per car. Peter Bianco, one of appellants, testified that he knew Wernikoff was doing business under the name of American Vegetable Growers and that he learned in June, 1948, Stone was doing business under the name of Richstone Distributors. He also testified that the checks were first required to be made out in the joint name of American Vegetable Growers and the Biancos and that Wernikoff always endorsed the checks for the American Vegetable Growers. He stated that Stone objected to the checks being made out to Bianco Brothers and insisted upon their being made out in favor of Bianco Brothers and American Vegetable Growers “ * * * because they were just starting out in business and they didn’t have a very high credit rating and they said they would appreciate it very much if we would at least agree to have their name on the check as well. * * * Mr. Stone said he didn’t want his name to enter any legal documents whatsoever. And the deal was to be known as American Vegetable Growers because of his previous deal at Tucson he didn’t want his name to enter the picture at all.” He was then asked : “Now what is Stone’s name for his business, the way he conducts business, do you know that? “A Richstone, I believe.” The fact that Stone referred to himself and Wernikoff as “we” or to the Vegetable Growers Association and himself as “we” does not even tend to establish a partner ship between Stone and Wernikoff. Most salesmen and agents representing firms,, in referring to the business of their principal use the pronoun “we”. Certainly no inference of financial interest could be drawn from such language. We therefore hold that there is no substantial evidence in the record upon which to base a finding by the trial court that a partnership relation existed between Wernikoff and Stone. We further hold that at all times during such period of time the defendant Stone was acting in the capacity of agent for defendant Wernikoff. This being true, no liability could arise under the conditions of the bond executed by Great American Indemnity Company, of New York, in favor 'of Stone doing business as Richstone Distributors for the reason that as such agent he participated in-none of the benefits of the transaction except as an employee of Wernikoff for which he was compensated for the service rendered. Appellants contend that as to them Stone is estopped to deny the existence of a partnership relation between himself and Wernikoff. Assuming, without conceding, this to be true, we are of the view' that such estoppel could not be extended to create a liability against his surety Great American Indemnity Company, of New York. Their liability can only arise out of the bond contract with Stone. As above stated they agreed only to act as surety for Stone as a licensed commission merchant doing business as Richstone Distributors. If he is held to be responsible to appellants on the ground that his conduct es-tops him from denying the existence of a. partnership relation between him and Wernikoff, then that partnership relation relieves his surety from all liability to himi on its bond obligation. The hazards of the-surety would be enlarged to the same extent by a partnership transaction where the partnership was created by estoppel as. when it is created by contract. In neither case would the bonding company be liable.. We further hold that inasmuch asWernikoff was solely responsible for the-breach of any duty to appellants created under the terms of his agreement with them,, and inasmuch as Stone was not obligated', to them under the terms of such contract the question of a joint and several judgment against the two does not arise in this-appeal. It follows that for the breach of Wernikoff’s contract with appellants ini failing to account to them and to pay them: within ten days after receipt of the sale-price therefor, Firemen’s Fund Indemnity, a corporation, is solely responsible therefor to the extent of the obligation assumed by it under the terms of its bond, to wit, the-sum of $5000. Counsel for appellees contend that under no circumstances are the appellants. entitled to a summary judgment but that appellees are entitled to a new trial on the question of whether or not the acts claimed to have been committed by defendant Wernikoff violated the conditions of their bond. We do not think that there is any merit to this position for the reason that appellees had the opportunity of presenting these very questions and did present them to the court in their motions for an instructed verdict. They also had the opportunity to present all of their evidence to the court bearing upon this issue at the trial of the cause. Therefore it is ordered that the judgment of the trial court be reversed as to Firemen’s Fund Indemnity, a corporation, and that judgment be entered in favor of appellants and against appellee Firemen’s Fund Indemnity, a corporation, in accordance with the terms and conditions of its bond; and that it be affirmed as to the Great American Indemnity Company, of New York. UDALL, C. J., and STANFORD, DE CONCINI and LA - PRADE, JJ., concurring.

UDALL, Chief Justice. By certiorari there is brought before-us for review an award of the Industrial Commission of Arizona denying Bert A.. Fidler, petitioner, compensation for an alleged injury. Petitioner was an employee-of Climate Control, Inc., respondent employer, which was insured by the commission. From the record it appears that on June 5, 1950, petitioner suffered an injury by accident arising out of and in the course of his employment. The accident, occurred when Fidler, who was working in-a bent-over position, stood up and hit his head on a steel pipe. The attending physician, Dr. W. Albert Brewer, who examined him the next day found no objective signs of injury to the head, i. e., no bumps, bruises, or contusions, and it was his opinion that petitioner would be able to resume regular work within a week. By an order dated July 17, 1950, the commission found that petitioner was entitled to accident benefits under section 56-938, A.C.A.1939, and thereafter on August 15, it made a final award reaffirming its previous order covering accident benefits, but expressly finding that “said applicant was not disabled for work in excess of seven days after said injury and therefore (was) not entitled to compensation.” Application for rehearing was filed, and upon the basis of new evidence in the form of a report from Dr. John H. Green, the commission, on October 24, amended its award by allowing compensation for temporary total disability for the period August 17 to September 21, 1950. The record discloses that following treatment by Dr. Green on the latter date petitioner no longer suffers any disability, although previously thereto and subsequent to the accident he asserts he suffered severe and disabling headaches. Shortly after the amended award of October 24, petitioner filed a second petition for rehearing stating that the amended award “is unjust and unlawful, that the evidence does not support the findings * * •*,” and giving as his reasons for seeking the second rehearing that the average monthly wage was not computed according to law and that the compensation for temporary total disability should relate back to the date of injury, i. e., Jun; 5, 1950. He stated that he wished to cross-examine the medical witnesses and introduce evidence of his average monthly wage. A formal hearing was had in which all of the medical witnesses were cross-examined by petitioner with the exceptions of Drs. Green and James R. Moore whose written reports were part of the record. In addition to Drs. Brewer, John A. Eisenbeiss, and William B. McGrath, testimony was given by petitioner, his wife and a representative of the respondent employer. Thereafter on January 19, 1951, the commission decided: (1) that the original award for accident benefits be reaffirmed; (2) that the amended award of October 24 allowing compensation was improvidently entered and should be rescinded; and (3) that petitioner take nothing by his petition for rehearing. This petition for review followed. Petitioner has abandoned his contention that he is entitled to compensation for the period from June 5 to August 17, and his sole contention now is that the commission acted in excess of its jurisdiction in rescinding its previous award of October 24, which granted compensation for the period from August 17 to September 21, in that the commission disregarded the.only rea sonable inference that could be drawn from the uncontradicted testimony relating to that period. There is little merit to this contention. Petitioner apparently has failed to recognize that in his petition for rehearing he asked for and was granted an unrestricted rehearing. His examination of the medical witnesses covered the entire period from the date of injury until petitioner was finally discharged by Dr. Green in September. Petitioner's own testimony, as well as that of his wife, and the employer's representative was not restricted to the period from August 17 to September 21. We hold then that when a rehearing is granted, without restrictions or limitations being imposed, it is reopened for all purposes and the commission is at liberty to revaluate the evidence and make such order as it deems meet in the premises. See 71 C.J. 1204, sees. 1114, 1116, and 1118; and Carter v. Industrial Commission, 76 Utah. 520, 290 P. 776; Great Western Power Co. v. Industrial Accident Commission, 191 Cal. 724, 218 P. 1009; Repper v. E. Eichelberger & Co., 120 Pa.Super. 19, 181 A. 379. In the instant case since the award of October 24 had not become res judicata, the commission upon rehearing had jurisdiction to vacate it. After painstakingly examining the complete file certified to this court, including the reporter's transcript of the testimony adduced upon the rehearing, it appears that the strongest case that can possibly be made for petitioner is that there is a conflict in the medical evidence. No useful purpose would be served in setting out in detail the views of the various doctors, for in the final analysis Drs. Green and Moore find a causal relation between the original accident and the subsequent severe headaches suffered by petitioner, whereas Dr. McGrath states positively that in his opinion there is no such causal relation. The evidence adduced from Drs. Brewer and Eisenbeiss indicate that their examinations were insufficient upon which to base a very definite opinion. Under these circumstances, the commission, as the trier of fact, was at liberty to choose whom to believe. From the beginning, this court has consistently held that where the medical evidence is in conflict and is controlling in the case, the findings of the commission are binding upon us. See Sarakoff v. Six Companies, Inc., 48 Ariz. 99, 59 P.2d 302; Ison v. Western Vegetable Distributors, 48 Ariz. 104, 59 P.2d 649; Caekos v. Stanley Fruit Co., 55 Ariz. 72, 98 P.2d 471; Emery v. Industrial Commission, 69 Ariz. 87, 210 P.2d 217; Hewett v. Industrial Commission, 72 Ariz. 203, 232 P.2d 850, and cf. Tashner v. Industrial Commission, 62 Ariz. 333, 157 P.2d 608. Award affirmed. STANFORD, PHELPS, DE CONCINI and LA PRADE, JJ., concur.

STANFORD, Justice. This action was brought by plaintiffs, (appellants herein) in the superior court, asking for a mandatory injunction for injury allegedly resulting from defendants’ obstruction of a public street, and also asking damages in the sum of $1,000 sustained as a result thereof. The street in question, which we shall refer to as Fourth Street, is located in the Alhambra Amended Subdivision, northwest of the city of Phoenix, Arizona. It runs in a northerly direction, forming the east side of a triangle bounded on the southwest by Grand Avenue, a four lane highway running in a northwesterly direction, and on the north by the Grand Canal, which at that point runs in a somewhat westerly direction. Fourth Street intersects Grand Avenue at the southernmost corner of the triangle and extends to, but not across the canal at the northeast corner thereof, forming a dead-end street or a “cul-de-sac” some 200 yards in length. The undisputed facts brought out in the trial court show that the land within and surrounding this triangle area was subdivided in 1895, that the map or plat recorded at that time, and still of record, designates Fourth Street as a roadway, 66 feet in width within the said subdivision. The plaintiffs are owners.-of land abutting Fourth Street on the east, and land belonging to defendants abuts the same on the west. For a number of years, possibly since the subdividing but undisputedly since 1905, the only part of Fourth Street used as a public way has been the eastern portion thereof, averaging approximately 25 to 35 feet in width. It appears that a row of trees and a fence have bordered this strip on the west for some years, and since 1945, defendants have placed various structures on the unused portion of the street, west of the fence, including, among other things, a bath house, a cess pool and butane tank for use in connection with a trailer court. Additional facts brought out at the trial also indicate that the portion of the street in use is only 10 to 15 feet wide in places, due to the meandering path of the trees and fence, rendering it almost impassable at times. ' Plaintiffs brought suit asking (1) that a mandatory injunction be issued requiring that all “barriers and obstacles” be removed from the roadway and that defendants be forever barred from obstructing the said road; and (2) that plaintiffs recover $1,000 damages as compensation for injury to their premises. The case was tried without a jury, and at the close of plaintiffs’ case, defendants made their motion for judgment. The motion was granted and judgment entered thereon. From this judgment and from an order of the court denying plaintiffs’ motion for a new trial, this appeal is taken. Plaintiffs’ brief contains nine assignments of error, alleging that the judgment is contrary to law and not supported by the evidence, in that the street was dedicated to public use and has remained so, not having been abandoned nor the dedication affected in any manner, and that title thereto or any part thereof may not be obtained through adverse possession. Two of the assignments also aver that plaintiffs are proper parties to maintain this action, having suffered special damages by defendants’ actions, and that estoppel and laches constitute no defense to an action such as the one at hand, where the action is brought in behalf of the general public as well as in an individual capacity. It is well settled in this jurisdiction that the making and recordation in the county recorder’s office of a city addition plat, showing lots, blocks, dimensions thereof and width of all streets coupled with sales or lots therein, constitutes a “dedication” of such streets, and use thereof by purchasers of lots and the general public constitutes sufficient acceptance of the dedication, by which fee in the dedicated property passes to the county in trust for the public and the described uses. Edwards v. Sheets, 66 Ariz. 213, 185 P.2d 1001; Allied American Investment Co. v. Pettit, 65 Ariz. 283, 179 P.2d 437, and cases cited therein. That there was a valid and effective dedication of the street to public use at the time of the subdivision and that that dedication has continued uninterrupted until the present, is undisputed by the parties herein' on appeal. Also defendants do not deny that they have used and obstructed the portion of the roadway not used by the public. It is defendants’ contention, in support of their judgment, that plaintiffs have shown no special damages in addition to the general injury suffered by the public as a result of the obstruction, and therefore are not proper parties to maintain this action, and also that plaintiffs were guilty of laches in bringing this action and are estopped by reason of the fact that the occupancy of the portion of Fourth Street in question by the defendants has been acquiesed in by plaintiffs and their predecessor in interest for so long a period that defendants, relying thereon, were justified in erecting the obstructions mentioned above. The only questions presented by this appeal for our determination then are: (1) Are the plaintiffs proper parties to maintain an action for the relief sought here; and (2) Were they guilty of laches in failing to pursue their cause of action diligently and thereby estopped to deny defendants’ right to use the roadway as they did? From 40 C.J.S., Highways, § 226 (b), discussing the use of injunction for the removal of obstructions from public highways we quote: “Where a road is shown to be an existing public highway, a private individual is entitled to an injunction against encroachments or obstructions thereon when, and only when, he has sustained special damage, different not merely in degree but in kind from that suffered by the public at large; * * In the case of Mackey v. Aycock, 83 Okl. 175, 201 P. 365, 366, the court recognized the following as controlling law regarding special damages to a land owner: “ * * * the obstruction of a public highway'may be considered as specially injurious to a private landowner * * * where the obstruction is not in front of the abutting property, but in such proximity to it upon) the street or highway upon which the property abuts that the abutting owner’s use; and enjoyment of the property is destroyed or greatly interfered with and its value depreciated; * * * (or) in cases where property the access to which has been interfered with by an obstruction is not adjoining the highway or street upon which the obstruction exists, if such street or highway is the owner’s only means of access to the property.” See also Whitney v. Crittendon, 112 Or. 278, 229 P. 378; Siegenthaler v. Newton, 174 Okl. 216, 50 P.2d 192; Thomas v. Farrier, 179 Okl. 263, 65 P.2d 526. Owing to the peculiar circumstances surrounding the location of plaintiffs’ property between the canal and Grand Avenue, and the fact that Fourth street is only open at one end, being at the intersection of Grand Avenue, plaintiffs’ only access to their property is over the strip of roadway in question. It is argued by defendants that plaintiffs have shown no specific decrease in the market value of their property and therefore have not shown special damage. However, according to the authority cited, a mere interference with a party’s only access to his property constitutes special injury. We hold therefore that plaintiffs, having suffered such special damages, are proper parties to maintain an action asking injunctive relief therefor. The only question remaining for our consideration pertains to the matter of laches on the part of plaintiffs in bringing this action. The evidence presented at the trial indicates that prior to the subdividing, there was only a narrow lane where the eastern portion of Fourth Street is now located, and after the subdivision was completed, the street, 66 feet in width as dedicated, was never completely opened up or put to public use and was never extended across the canal. Defendants have owned their land continuously since 1905 and plaintiffs acquired their land in 1945 and 1946. It is undisputed that for a period of years there has been a fence along the west side of the used portion of Fourth Street, being near the center of the dedicated roadway. At some time prior to plaintiffs’ purchase of their property, there were a number of trees planted near the west side of the said fence. Evidence also shows that at the present time, the fence is nailed to the trees in places. The testimony in the trial court indicates that from 1945 until 1947, defendants were engaged in constructing the structures complained of, the cess pool, bath house, etc., that the said structures were placed on a strip of land dedicated as a part of Fourth Street, immediately west of the above mentioned fence, and that while the foundations were being laid for the-bath house, apparently some time in the latter part of 1946, plaintiffs objected to defendants’- use of the roadway in such a manner. Testimony also indicates that these objections were made to the defendants themselves and continued until immediately prior to the date of commencement of this action, January 11, 1949. Argument is made by defendants that plaintiffs’ testimony, regarding their objections to defendants’ actions, was uncorroborated and therefore the trial court, in granting defendants’ motion for judgment was justified in disregarding any such testimony. To reiterate, the case herein was tried without a jury, and defendants entered their motion for judgment at the close of plaintiffs' case. Such a motion for judgment was made during the progress of the trial and is comparable to a motion for a directed verdict made during the progress of a jury trial. From Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201, 204, cited with approval in Gallaway v. Smith, 70 Ariz. 364, 220 P.2d 857, we quote: "Ordinarily an appellate court in determining an appeal views the evidence, where it is conflicting, in the light most favorable to a sustaining of the lower court's judgment. (Citing case.) A reverse rule however applies where, as here the trial court directs the jury to return a verdict for the defendants. The conflicting evidence then must be viewed in a light most favorable to plaintiff. Cope v. Southern Pac. Co., 66 Ariz. 197, 185 P.2d 772; Dieterle v. Yellow Cab Co., supra (34 Cal.App.2d 97, 93 P.2d 171) * * *. See also Canion v. Southern Pac. Co., 52 Ariz. 245, 80 P.2d 397; Ridara Livestock Co. v. Agricultural Products Co., 61 Ariz. 473, 150 P.2d 761. While, as pointed out by defendants, plaintiffs’ testimony was uncorroborated and not admitted by defendants, still such competent testimony must 'be taken in the light most favorable to the plaintiffs. Summarizing evidence presented at the trial, plaintiffs acquired their land in 1945 and 1946, construction of the items complained of by defendants was continued through 1946 and into 1947, during which time, and after which plaintiffs objected strenuously, attempting to induce defendants to remove them, and complaint in the present action was filed January 11, 1949. In view of the fact that the last obstruction was placed on the land apparently some time in 1947, at which time plaintiffs’ last cause of action arose, and they followed this by filing suit in January of 1949, we hold that the lower court erred in granting judgment for defendants, which was based on laches on the part of plaintiffs. It is also argued in defendants’ brief that acquiesence in the conditions prevailing by the plaintiffs and their predecessors in interest for a number of years, gave defendants a right to rely on the existing condition of the roadway as permanent, because of the two year statute of limitations. Of course title to a properly dedicated street or any part thereof cannot be obtained through adverse possession or use; Edwards v. Sheets, supra, and from 39 C.J.S., Highways, § 131(b), we quote: “If a highway is legally laid out and established, the mere fact that the public does not use it to its entire width will not of itself constitute an abandonment of any portion thereof. The rule is the same whether or not the road is fenced by the adjoining landowners. Encroachments on a highway continually used cannot be legalized by mere lapse of time; the limited use will not lessen the right of the public to use the entire width of the road whenever the increased travel and exigencies of the public render this desirable. * * ' * ” following which, § 132 of 39 C.J.S. says: “In the absence of any statutory provision on the subject, the fact that there has been delay in opening up a highway cannot generally be relied on to defeat the right to the way, nor will failure to keep a road in repair constitute an abandonment of the road.” Accordingly we hold that the trial court erred in granting defendants’ motion for judgment, and we hereby direct that the judgment be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. UDALL; C. J., and PHELPS, DE CONCINI and LA PRADE, JJ., concur.

PHELPS, Justice. Harold Thomas Lantz, defendant-appellant herein, was convicted of the murder of one Ada Cora Park and the death penalty was imposed. From the judgment and the order overruling his motion for a new trial defendant appeals. A statement of the pertinent facts will be deferred until we reach a discussion of assignments presented respecting the ques tion of sufficiency of the evidence to establish the corpus delicti before the admission in evidence of the- confessions of defendant. There are presented to us six assignments of error which we will discuss in the order presented. Appellant contends first that the court -erred in setting the case for trial in the absence of both defendant and his counsel, and in failing to give either of them notice of the date such setting would be made. An examination of our criminal rules of procedure, sections 44-1401 to 44-1405, A.C.A.1939, inclusive, indicates that the contention is without merit. While we think it the better practice to require both -defendant and his counsel to be present when an order setting a criminal case -for trial is made, it is not necessary that either he in court at the time, and so long as the case is set sufficiently far enough away to enable counsel to properly prepare for trial, no substantial rights of the defendant are violated. Defendant next complains in his assignment of error No. 2 that on October 3rd, the date on which the case came up for trial, the court erred in refusing to grant defendant a continuance. The assignment, does not meet the requirements of Rule 10(1) of this court in that no ground is specified therefor. -We gather from the argument of counsel for defendant, however, that by reason of the absence of both defendant and his counsel on September 22nd when the court made its order setting the case for trial, and by reason of the fact that no record of the setting was made upon the criminal dockets of the court, no legal duty devolved upon him to take cognizance of the action of the court in setting the case for' trial. He claims this to be the law notwithstanding the fact that he received actual notice thereof by wire on the date the order was made. We do not agree with this view. Section 44—1033, A.C.A.1939, makes it mandatory that counsel for a defendant charged with crime shall be given at least two days after a plea of not guilty to prepare for such trial. Sections 44—1601 to 44—1611, A.C.A.1939, inclusive, set forth the grounds upon which a continuance may be granted by the court. On such application being made by either party or on the court’s own motion, it may in its discretion, for good cause grant a continuance. It is only when the court abuses its discretion resulting in prejudicial error to the defendant that its action will be set aside. An examination of the record in this case discloses that defendant was arraigned before the superior court on August 28, 1950, and entered a plea of not guilty. He was then represented by the Honorable I. B. Tomlinson who had been appointed by the court to represent him the previous August 23rd. No setting of the case was then ordered by the court and none was made until September 22nd as above stated. We are of the view that counsel had adequate time in which to prepare for the defense of his client and that there was no infringement upon the constitutional rights of defendant in requiring him to proceed to trial on October 3rd. No lawful ground was shown for a continuance and the trial court therefore did not abuse its discretion in ordering the trial to proceed. In assignment No. 3 defendant complains that the court erred in admitting the testimony of Percy Bowden, Chief of Police of the city of Douglas, concerning a conversation he had with defendant on the morning of the alleged murder. It is asserted that this testimony was not admissible until the corpus delicti had been proved. This is based upon the theory that Bowden’s testimony was offered as a confession of guilt by the defendant. The weakness of counsels’ argument in this particular lies in the fact that they have misconceived the character of the testimony of the witness Bowden. His testimony of what defendant stated to him was not in any sense a confession. It did not even amount to an admission of an independent • fact from which guilt could be inferred. On the other hand, if fairly construed, it was a denial of guilt. It was to the effect that another person had killed deceased and that defendant had undertaken to defend her but was himself knocked .down by assailant of deceased and despite defendant’s efforts the murderer had jumped from the train and escaped. In State v. Romo, 66 Ariz. 174, 185 P.2d 757, this ■ court brought out in full relief the characteristics of a confession and distinguished it from an admission. The testimony was clearly admissible as a circumstance in proving the corpus delicti. The fact that Ada Cora Park was dead and that she had come to her death by violent means had definitely been established by competent testimony. The only other element required to establish the corpus delicti was the criminal agency of defendant in bringing about her death. The witness Bowden testified not only to defendant’s statement that he had seen another man in her berth on top of deceased choking her, but he testified to observing blood on defendant’s clothes and in his ear as well as to a number of scratches on his nose, face and chest. Pictures were, produced by him confirming these facts. Certainly these were all circumstances tending to connect defendant with the death of deceased and were necessary to lay the foundation for the admission in evidence of defendant’s written confession later given to the county attorney. Other circumstances testified to by the pullman conductor to the effect that he had ordered defendant out of this particular car soon after leaving Tucson; the testimony of the passenger conductor concerning defendant’s conduct; the finding of defendant’s hat and suitcase in the berth immediately back of the one occupied by deceased; defendant’s earlier statement that the hat be longed to the man who committed the murder and had escape'd and later his admission to the witness Bowden that it was his own hat; and other circumstances, fully established the corpus delicti before any confession of the defendant was admitted in evidence. All of the authorities are to the effect that the corpus delicti may be shown by circumstantial evidence. We so held in the case of Burrows v. State, 38 Ariz. 99, 297 P. 1029; Douglas v. State, 26 Ariz. 327, 225 P. 335. In fact we know of no case to the contrary. It was not error therefore for the court to admit the testimony of the witness Bowden for the reason that his statements were not a confession and that his testimony was entirely proper to aid in establishing the corpus delicti. This being true, assignment of error No. 5 to the effect that the court erred in the admission of the alleged confessions of the defendant on the ground that the corpus delicti had never been established must fall in the same category as assignment No. 3 and consequently held to be without merit. The 4th assignment of error is directed at the court’s refusal to instruct the jury only on second degree murder upon the ground that the information failed to charge first degree murder. We do not consider the information a model pleading and especially the portion thereof attempting to plead by reference the sections of the statute upon which the state relied but we believe it sufficiently conforms with our liberal rules of criminal procedure to charge the crime of first degree murder even without its reference to the statutes. It charges in plain and concise language that: “ * * * Harold Thomas Lantz murdered Ada Cora Park, a human being, said act then and there being committed by the said Harold Thomas Lantz in the attempt to perpetrate the crime of rape, all of which is contrary to the form, force and effect of the statute in such cases made and provided, and against the peace and dignity of the State of Arizona. “Sec. 43- 2901, ACA, 1939. “Sec. 43-2902, ACA, 1939.” Section 43-2902 reads as follows: "Degrees of murder.—-All murder which is perpetrated by means of poison or lying in wait, torture, or by any other kind of wilful, deliberate and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary or mayhem, is murder of the first degree, and all other kinds of murder are of the second degree.” Sections 44- 711 and 44-753, A.C.A.1939, relate to the sufficiency of the contents and form of an information and provide as follows: “44—711. Charging the offense.—(1) The indictment or information may charge, and is valid and sufficient if it charges, the offense for which the defendant is being prosecuted in one or more of the following ways: “(a) By using the name given to the offense by the common law or by a statute. “(b) By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged. “(2) The indictment or information may refer to a section or subsection of any statute creating the offense charged therein, and in determining the validity or sufficiency of such indictment or information regard shall be had to such reference.” * * * * * “44-753. Forms for specific offenses.— The following forms may be used in the cases in which they are applicable: * * * * * * "Murder.—A. B. murdered C. D.” Under these provisions of the statute it was not necessary to allege that the killing was done with malice aforethought. Even before adopting our liberal rules of criminal procedure in 1940, we said in the case of Macias v. State, 39 Ariz. 303, 6 P.2d 423, 424, that since the case of Marquez v. Territory, 13 Ariz. 135, 108 P. 258 (decided in 1910), it had not been necessary to set forth in an indictment or information for murder the means and manner of death. We proceeded to observe : “ * * * The means used and the manner in which the killing is effected in many cases supplies the intent necessary to make out murder in the first degree, as where the killing is accomplished by lying in wait, or by poisoning, or in the perpetration of arson, burglary, robbery, rape, or mayhem. * * * ” We believe we clearly indicated in that case that an allegation that the killing was accomplished in the perpetration of, or attempt to perpetrate rape, etc., made it unnecessary to allege either malice aforethought or premeditation or deliberation. This being true, the court correctly refused defendant’s requested in-« struction. It follows that there was no error in denying defendant’s motion for anew trial. Judgment affirmed. UDALL, C. J., and STANFORD, DE CONCINI and LA PRADE, JJ., concurring.

UDALL, Chief Justice. Petitioner, Charles A. Gusick, invoked the jurisdiction of this court by filing an original application in habeas corpus. After a formal hearing on July 3, 1951, we discharged him from custody without the posting of further bond. In obedience to the requirements of article 6, section 2, Constitution of Arizona, the court now states the grounds for the action taken. A brief summary of prior proceedings had against the petitioner is essential to an understanding of the question presented in the instant application. On June 26, 1951, in the habeas matter of Gusick v. Boies, 72 Ariz. 233, 233 P.2d 446, we unanimously held that bail exacted of petitioner in the total sum of $150,000 in two criminal cases, then pending in the superior court of Maricopa county was excessive, and it was. ordered reduced to the aggregate sum of $60,000 ($30,000 in each case) and the sheriff was directed to discharge the petitioner upon his giving bail in this sum. Such bail was furnished and the petitioner was released but before he could get out of the courthouse he was rearrested by the sheriff on eight other related charges filed by the county attorney. Bail aggregating $27,500 was required by the lower tribunals on these additional charges. This was furnished and petitioner, upon making such bail, was released from custody. The maximum penalty that could be imposed on petitioner if convicted of all the 31 counts embraced in the first two informations totaled 245 years. If the last eight charges are added thereto it can be seen that the potential punishment extends many times beyond the normal life of man. Thereafter, on June 30, 1951, the county attorney caused to be filed in the justice court of ' the West Phoenix precinct' another complaint charging the petitioner with the crime of sodomy, and bail was fixed by said court in the sum of $3500, in default of which the petitioner went back to jail believing that he would be faced with other similar charges regardless of whether he was able to furnish this bail. This petition was then filed and we issued a writ of habeas' corpus re turnable forthwith. The sheriff produced petitioner, in obedience to the command of the writ, and a hearing was had in open court upon the oral return of the respondent sheriff who was represented by the county attorney. At the conclusion of the hearing a minute order was entered vacating and setting aside the order of the justice of the peace fixing bail in the sum of $3500 and discharging petitioner without the giving of further bail. (Justice Stanford dissented from the order discharging petitioner without further bail as he was of the opinion that additional bail in what he considered the reasonable sum of $2000 should be required rather than the bail of $3500 fixed by the magistrate.) From a mere recitation of the steps taken by the county attorney subsequent to our decision as to what constituted reasonable bail in this matter, it appears obvious that the prosecuting officers—the opinion of this court to the contrary notwithstanding—have proceeded upon the theory that petitioner is so vile and the crimes charged so reprehensible and revolting that he should not be allowed his freedom on bail to mingle in society. The method pursued to keep the petitioner in jail was the practice of filing multitudinous charges and obtaining orders from the magistrates requiring additional bail, thus circumventing the constitution as well as flouting the clear intent of this court’s previous decision. These tactics hardly comport with our concept of American justice. The guarantees provided by the federal and state constitutions apply equally to all and they cannot be denied to any one person without weakening the rights of all. Merely because a defendant may be considered by the prosecutor (and the magistrates charged with the duty of admitting to bail) as being unfit to mingle in society does not justify denying him the right to bail pending trial. Under the law, regardless of the character of the crime or what the facts may be, the accused at this time is clothed with the presumption of innocence. As was pointed out in the first opinion, Gusick v. Boies, supra, bail is exacted for the sole purpose of securing the attendance in court of the defendant when required, and any bail fixed at more than is necessary for this purpose is deemed excessive within the meaning of. the constitution. Furthermore, we stated therein that excessive bail is not to be required for the purpose of preventing the prisoner from being admitted to bail nor reasonable bail denied for the purpose of punishing a person charged with crime. A cursory examination of court records, both territorial and state, indicates that bonds aggregating $87,500 as required of petitioner in the instant case are far in excess of any bail ever exacted of any defendant for any offense in the 88 year annals of Arizona jurisprudence. The law is well settled that the power to require bail is not to be so used as to make it an instrument of oppression. Ex parte Castillo, 102 Tex.Cr.R. 52, 277 S.W. 126, cited in the Annotation appearing in 53 A.L.R. 399. Another factor that must be considered in fixing the amount of bail in a given case is the fact that the accused is under bond for appearance at trial in other cases. 6 Am.Jur., Bail and Recognizance, sec. 87. See also Annotation, Bail, Factors Fixing Amount, 72 A.L.R. 821, and cf. Green v. Petit, 222 Ind. 467, 54 N.E.2d 281; State v. Mistich, 182 La. 43, 161 So. 14; Ex parte Ruef, 7 Cal.App. 750, 96 P. 24; State ex rel. Corella v. Miles, 303 Mo. 648, 262 S.W. 364, 365. In the latter case it is stated: "* * * The bail bond must be fixed with a view to giving the prisoner his liberty, not for the purpose of keeping him in jail. * * *” No one would contend that the $3500 bail fixed by. the magistrate in the instant case (or the $2000 bail favored by Justice Stanford) was unreasonable if it stood alone; it is the cumulative effect of this bail and the bonds previously exacted that makes it excessive. This factor was apparently given no consideration in determining what would be nonexcessive bail in the instant case. It was for these reasons that this court reached the conclusion that the requirement for additional bail, under all of the circumstances, was unreasonable and oppressive and in violation of petitioner’s constitutional right to bail that “is not excessive”. Petitioner discharged without further-bond. PHELPS, DE CONCINI and LA PRADE, JJ., concurring.

UDALL, Chief Justice. This appeal comes here from a retrial of the case of State v. Lane, 69 Ariz. 236, 211 P.2d 821, which this court reversed because of prejudicial error in the admission of hearsay testimony. In the first trial the defendant Charles E. Lane, Jr., was convicted and sentenced to life imprisonment for the murder of his ex-wife, Mary Alice Johnson (Lane). In the second, from which this appeal is taken, the defendant was again convicted but was sentenced to death. He has appealed from the judgment and order denying his motion for a new trial, contending that his trial was not fair and impartial nor in accordance with law. A synopsis of the salient features of the evidence must necessarily be based upon that adduced by the State, since the defendant did not testify nor were any witnesses called in his behalf. As near as it could be established the decedent met her death some time between 2 and 2:30 a. m. on February 10, 1948. She was last seen alive at approximately 2 a. m. by one Adam Goettel who delivered her to the house she occupied alone at 922 South 27th Avenue (two blocks north of Buckeye Road) in the city of Phoenix. Her body was discovered about 6 a. m. by her mother who lived nearby. The decedent was found partly undressed lying in a pool of blood on the floor near her undisturbed bed. She had been shot twice—-one shot had entered her body through the right cheek, the other just below the chin. The lock on the front door to the house- had been broken off; the door'was slightly ajar, and the lights were still on. The State necessarily depended upon circumstantial evidence to establish the actual shooting as there were no eyewitnesses whom it could call. However there was much direct evidence upon which the State relied which led to the inevitable conclusion that defendant was guilty of the premeditated murder of his ex-wife. Defendant, age 30, a resident of the Phoenix area, had married the woman whom he has been convicted of murdering on October IS, 1946. The decedent had been previously married to Johnson, and had a three-year-old daughter as the issue of the first marriage. The marriage with defendant had been an unhappy union and the decedent had permanently left him some 30 days prior to their divorce, which the wife obtained on February 3, 1948. Defendant was extremely jealous of his wife and tried to force her to return to him. A witness testified that just ten days before the killing she overheard the defendant tell the decedent, “ * * * If I can’t have you I don’t want anybody else. Nobody else will have you either.” (Emphasis supplied.) In addition to the above the State relied upon the following facts and the inferences logically deducible therefrom: (1) the defendant had repeatedly threatened to kill his ex-wife, and one witness had heard him tell her, “When I told you I will kill you, I mean it.”; (2) it was shown that as a result of these threats the' decedent was in mortal fear of her life and had on at least three occasions appealed to the police for protection from him; (3) during the evening prior to the killing, after defendant had made two fruitless attempts to borrow a gun he finally succeeded in borrowing a .22 Winchester rifle from Mac Ross, a friend; cartridges for the gun were borrowed from Jimmie Brown, another acquaintance, and both were told by-defendant that he was going hunting the next day. The gun was never returned to the owner nor was the death weapon ever found; (4) a ballistics expert’s testimony led to the conclusion that the fatal shots were fired from the Mac Ross rifle,—(More will be said of this evidence later) ; (5) a gray Plymouth sedan, bearing Arizona license plate number A/H, followed by three unknown numerals, was seen about 2 a. m. parked at the southwest corner of the Allison grocery store, a store located on Buckeye Road some two blocks south of the scene of the crime; (6) the defendant appeared at a service station on South Central Avenue in Phoenix about 2:15 a. m. driving a gray 1947 Plymouth sedan, bearing Arizona license plate number A/H 234, and after purchasing a gallon of gasoline made a telephone call. There was a mention of the word “dad” and the defendant’s part of the conversation, which was overheard by the attendant and a merchant patrolman, was: “I done what I told you I was going to. I am sorry. Get mother up and meet me down at Seventh and Broadway.”; and (7), the defendant was not to be found the morning of the killing and it was not until three days later, after an intensive man hunt, that he surrendered to the officers, at which time he was accompanied by his attorney. The Plymouth car driven by him the night of the murder was later found hidden in the desert near Estrella, some 18 miles east of the town of Gila Bend and approximately 60 miles-southwest of Phoenix in Maricopa county. The second trial lasted seven days, the first two of which were occupied in selecting a jury. The reporter’s transcript covers 1068 typewritten pages. Defendant’s-opening brief contains 259 pages of which 110 are devoted to setting up some 38 assignments of error, following which are some 30 propositions of law. We shall therefore not attempt to enumerate in this opinion all of the points raised, but after due and careful consideration of every assignment presented, we now confine ourselves to a discussion of only those points which, in our opinion, are deserving of consideration. Voir Dire Examination of Jurors. Defendant predicates several assignments of error on the court’s rulings in regard to-questions asked certain prospective jurors concerning their attitude toward circumstantial evidence. The questions on the part of the State to which objections were made omitted any reference to circumstantial evidence having to exclude every reasonable hypothesis of innocence before a. finding of guilty could be predicated thereon. The questions by defendant were so-framed as to emphasize this factor alone. Objections were made by both the State and the defendant at various times, the basis of each objection being that the particular question did not include all of the necessary “elements”. In selecting the jury, the court first examined the panel collectively and then counsel examined each prospective juror individually. Practically every one of them was interrogated by both the State and the defendant as to his feelings in regard to circumstantial evidence, and while the questions propounded by counsel were not identical, nor the rulings of the court thereon entirely consistent, yet in our opinion defendant could not possibly have been prejudiced thereby even if we assume that in two or three instances the rulings were erroneous. We say this for the reason that at least six prospective jurors were asked and answered questions concerning circumstantial evidence in which the question contained the statement that such evidence “must exclude every reasonable hypothesis of innocence” without any objection being made thereto. Furthermore, three times during the voir dire examination the court correctly defined to the panel the meaning of circumstantial evidence; instructed them that it was legal and competent evidence, told them how it should be' considered, and finally, when the case was submitted to the jury, the court again fully instructed the' jury on this matter. No objection is here made to any of the court’s final instructions. There is no merit to this group of assignments. Defendant maintains that the court erred in denying his motion to declare a mistrial because the prospective alternate juror Mildred Emanuel purportedly stated on her voir dire examination, in response to a question as to her acquaintance with the persons involved in the case, “I know all of the people of the girl he killed.” The official court reporter recorded the answer as: “I know all her people, they are my neighbors up there.” An issue was made of the matter at the time and the court heard counsel in chambers out of the presence of the jury but refused to examine the juror privately. This same matter forms the basis for an assignment on the court’s overruling defendant’s challenge for cause of said juror (She was later peremptorily challenged and did not serve.), as well as being one of the grounds urged on defendant’s motion for a new trial. We need not consider whether the purported answer was prejudicial for at best there is a mere conflict as to whether the statement complained of was actually made. The court apparently relied upon the official record, as well as his own recollection of what occurred, and we cannot say that in so doing he erred. Prosecutor’s Opening Statement. The defendant' assigns as error a remark the county attorney made in concluding his opening statement to the jury to the effect that the evidence would show that defendant did not, at any time, deny shooting and killing his ex-wife. Defendant contends that under section 44—2704, A.C.A.Í939, this is a reference to defend ant’s failure to testify and constitutes reversible error. The record discloses that the State, during the course of the trial, did attempt to prove by one of its own witnesses an admission by silence on the part of the defendant. The statement complained of could hardly be construed as even an indirect reference to defendant’s failure to take the stand, for at that stage of the proceedings the State could not know whether defendant would or would not testify since he had done so at the previous trial. Under these circumstances it is obvious that only an extremely strained construction of the language could lead to the conclusion that the county attorney’s remark was a comment on defendant’s failure to testify. Admission and Exclusion of Evidence. The defendant objected every step of the way to the introduction in evidence of various exhibits and testimony by which the State laid a foundation for the expert opinion of Ray H. Pinker, technical director of the Scientific Criminal Investigation Laboratory of the Los Angeles police department, whose testimony led to the ultimate conclusion that the Mac Ross gun was the one from which the fatal shots were fired. Nearly half of defendant’s assignments of error are directed to the rulings of the court in admitting in evidence not only the expert’s opinion but the various exhibits upon which that opinion was based. Through excellent detective work on the part of the sheriff’s office, the State was able to furnish the ballistics expert with certain exhibits, including a ’ fired shell found near the body of the decedent and one lead slug taken from her body. Certain other exhibits, with which comparisons were made, consisted of (1) a box of cartridges taken from the same container in the garage of Jimmie Brown from which came the cartridges for the .22 rifle loaned to the defendant the night of the killing; (2) part of a box of Remington .22 Long Rifle shells taken from the back end of the Mac Ross car, and (3) seven fired shells picked up about May 1, 1948, in the river bed a half mile west of Central Avenue near Phoenix, where Mac Ross testified that he and another had, some three weeks or a month before the killing, engaged in target practice at this same spot with some of the cartridges from the box found in his car and the .22 rifle he later loaned to defendant. Upon comparison of these various exhibits the expert concluded that all of the shots were fired from the same gun. The ballistics expert, whose qualifications and experience to testify to such matters were fully established, related, at length from the witness stand the tests that he had made of the exhibits furnished him. This included all of the known scientific tests employed by technicians in such cases in this specialized field. The court admitted in evidence highly magnified pictures, or photomicro grams, showing firing pin and extractor marks on certain of the fired shell cases in evidence. On the authority of the case of Matthews v. People, 89 Colo. 421, 3 P.2d 409, the defendant asks the individual members of this court to examine these photomicrograms and find as a fact that the marks on the known and questioned exhibits are dissimilar. This we refuse to do. We are not the triers of fact nor are we qualified by either training or experience to make such a comparison. It is interesting to note in this regard that, so far as we have been able to determine, the Colorado case, in which the members of an appellate court made such comparisons, stands alone in American jurisprudence. Defendant contends that the evidence upon which the expert based his opinion was too remote to be of any probative value and that such evidence was inadmissible as being an inference upon an inference and subjected the defendant to a trial on suspicion, conjecture, and speculation. We believe that the testimony used as a basis for the expert’s conclusion was certainly relevant and highly material. The fact that several months elapsed between the target practice when the fired shells were left in the river bottom and their ultimate recovery by the officers goes merely to the weight not the admissibility of the evidence. We are of the opinion that the rules of evidence were fully complied with in admitting these various questioned exhibits and that the trial court did not err in its rulings thereon. The case of State v. Boccadoro, 105 N.J.L. 352, 144 A. 612, presents a comparable factual situation. There the death weapon, which had been stolen by defendant from a Dr. Black, likewise was not found. However the officers had the lead slug which killed the deceased and a bullet which the doctor had fired into the ground some two or three years before, the officers having recovered the latter by digging it up from the doctor’s front yard. Ballistics experts were permitted to testify from a comparison of the two that both bullets had been fired from the same gun. Defendant assigns as error the admission in evidence of a statement made by Raymond Rice, the merchant patrolman who also testified as to defendant’s telephone call the night of the murder and who identified the car he was driving. The objectionable matter is a statement made by Rice to another after defendant left the station where he purchased gas and made the telephone call, viz: “Q. Did you (Rice) make any statement after he left? A. Yes, sir, I did. “Q. What did you say? “Mr. Stidham: I object to that as hearsay. “The Court: No, that couldn’t be hearsay, could it? “Mr. Stidham: He said after the defendant left. “The Court: Overrule the objection. “Mr. Renaud: Q. Go ahead. “A. I made a statement to Mr. Williams that I felt there was something wrong and that I should have detained that party.” The ruling, in the light the court obviously took of the matter, was manifestly erroneous. Even though the witness was the declarant, this was an attempt to introduce as substantive evidence, an extrajudicial statement made by the witness at a time when the defendant had no opportunity to cross examine. See State v. Wright, 319 Mo. 46, 4 S.W.2d 456, and cases cited generally under Decennial Digest, Criminal Law, 419(10) (11). However it can hardly be argued that the admission of this evidence could have prejudiced the defendant, for only a few moments before, on cróss examination, D.C. (Pop) Williams, the station operator, had testified to the same thing and defense counsel made no motion to strike it. Hence the statement was already before the jury. Under these circumstances, whether the evidence was admissible on some theory not advanced by the State we need not now determine, for in any event, the later admission of the statement could not have affected any substantial right of defendant. We pointed out in the case of State v. King, 66 Ariz. 42, 182 P.2d 915, that due to the human equation no case was ever so perfectly tried that it could not be subject to some criticism. This court has consistently held to the view that no case will be reversed because of technical errors which do not affect the substantial rights of the accused. See State v. Thompson, 68 Ariz. 386, 206 P.2d 1037; State v. Hendricks, 66 Ariz. 235, 186 P.2d 943; Riley v. State, 50 Ariz. 442, 73 P.2d 96; Birch v. State, 19 Ariz. 366, 171 P. 135. Prejudice will not be presumed, but must appear probable from the record. State v. Martinez, 67 Ariz. 389, 198 P.2d 115; Lawrence v. State, 29 Ariz. 247, 240 P. 863, certiorari denied 269 U.S. 585, 46 S.Ct. 201, 70 L.Ed. 425. Due to the fact that the death penalty was inflicted in this case we have most carefully examined the entire record, and while some few errors were committed, they did not, in our opinion, affect the verdict. The defendant was accorded a fair and impartial trial and his guilt was conclusively established. Judgment affirmed. STANFORD, PHELPS, DE CONCINI and LA PRADE, JJ., concurring.

FARLEY, Superior Court Judge. The plaintiff, John E. Bedway, instituted this action against Harlan Diehl, George Schaerges and the Witt Ice & Gas Company to recover damages for personal injuries sustained by him as the result of the explosion of a beer keg. The explosion occurred in the Troc Buffet in Phoenix on November 15, 1947, while the plaintiff was-engaged in his duties as a bartender. At the time of the accident Diehl was in the business of installing beer dispensing equipment and employed Schaerges as his assistant. The two of them installed the beer’ dispensing equipment at the Troc Buffet, on the day prior to the accident. In the installation process it was necessary to connect a tank or cylinder of carbon dioxide gas as a component part of the beer dispenser in order to force the beer from the keg through the outlets on the bar. This was done by means of a copper tubing’ which was connected to the gas cylinder at the top, where a regulator was installed which gauged the flow of CO2 gas into the.beer barrel. It was the plaintiff’s contention that because the regulator was defective it did not properly regulate the flow of gas, and that as a consequence the explosion occürred which resulted in plaintiff’s injuries.. The regulator was obtained from the defendant Witt Ice & Gas Company by defendant Diehl for the Troc Buffet, and it was delivered to the Buffet by an employee of the company at the time of delivery of the gas cylinder, and it was thereafter in.stalled by Diehl. The jury determined that the defendant Witt Ice & Gas Company was negligent in selling a defective regulator but exonerated the defendants Diehl and Schaerges, so that this appeal is being prosecuted only by the Witt Ice & Gas Company, on numerous grounds which will be hereinafter indicated. The appellant has assigned as error the introduction of the regulator and its exhibition to the jury in a disassembled state on several grounds which, broadly stated, are that it was not the manufacturer and had not made any representations or warranty concerning it, or had any knowledge of any defects in it; that it was admitted in evidence by the court solely for the purpose of demonstrating its outward appearance, and that it was not in the same condition it was when taken from the Troc Buffet. The objection to the receipt in evidence of the regulator on the first ground, to wit, that appellant was not the manufacturer and had not made any representations or warranty concerning it would be well founded if the evidence was uncontradicted that it was a new regulator. The evidence in that regard was conflicting, and the jury evidently adopted the testimony of the expert witness, McLeod, who said that the regulator was not new and had seen a lot of service; also the warehouse manager for defendant company, one Walker testified on deposition, parts of which were introduced in evidence, that his company had used regulators on hand and that they had repaired and sold a few of them. The regulator was identified as the same one removed from the Buffet and which was admittedly supplied by the appellant. If different inferences as to ultimate facts may be drawn from evidentiary facts, the inference drawn by the trial court must be accepted by the supreme court on appeal. Daily Mines Co. v. Control Mines, Inc., 59 Ariz. 138, 124 P.2d 324; Kenton v. Wood, 56 Ariz. 325, 107 P.2d 380. The next objection raised by the appellant was that the trial court stated at the time the exhibit was admitted in evidence that it was received solely for the limited purpose of demonstrating its outward appearance, and that it was error to subsequently permit the jury to observe its mechanical composition. The trial court erroneously concluded the purpose of the offer and perhaps misled counsel for appellant into believing that the mechanical aspect would not be considered. However we think it is harmless error as the exhibit was properly identified, and a proper foundation was laid by counsel for plaintiff before its mechanical operation and defects were presented to the jury. Appellant also contends that the evidence conclusively showed that the regulator was in good operating condition at the time of its sale and for one and a a half to two hours, after its installation. It appeared from the evidence that the failure of the regulator to maintain a constant pressure was due to a rip or tear in the neoprene valve seat which the expert McLeod testified showed evidence of age and a lot of service. “ * * * The public safety and security against the fatal or injurious consequences -of negligence in demonstrating and testing' mechanical devices for common public use and in which lurk obvious possibilities of danger is a consideration to which courts cannot be indifferent. An imperative social duty requires a vendor of a mechanical device to take at least such easily available precautions as are reasonably likely to prevent serious injury to those who by using such a device may be exposed to dangers arising from its defective construction.” Ebbert v. Philadelphia Electric Co., 330 Pa. 257, 198 A. 323, 327. If the regulator were a new one the tests to which it was submitted would doubtless have been adequate to divulge any latent defects, but the jury apparently found that it was not a new regulator and as we have heretofore pointed out there was sufficient evidence to sustain that finding. Inasmuch as it was not a new mechanism and the explosion occurred we think it is self-evident that the tests to which it was subjected were not adequate to bring to light any latent defects. The point is also made that the regulator was not in the same condition as when it was taken from the Troc Buffet.. This raises the most serious aspect of this, appeal. “ * * * It is elementary that before a material object may be admitted in evidence, it must be shown that there has. been no substantial change in condition, since the time in issue.” White v. Keller,, 188 Or. 378, 215 P.2d 986, 990. As was said in Allen v. Porter, 19 Wash.2d 503, 143 P.2d 328, 331: “ * * * An exhibit is admissible, so far as identity is. concerned, when it has been identified as. being the same object about which the testi-mony was given and when it is stated to-be in the same condition as at the time of the occurrence in question. It is not necessary to negative the possibility of an opportunity for tampering with an exhibit, nor to trace its custody by placing each custodian upon the witness stand. * * * ” A satisfactory explanation was made -by the witnesses who had 'it in custody after the accident for the disassembled state in which it was received in evidence. The-regulator was identified by appellant’s manager, Walker, and by the defendant Diehl as the regulator which was supplied by appellant and installed in the Buffet. An; examination of the regulator after the explosion revealed that the safety blowout disc which is a part of the new regulator was not present, but rather a crudely cut disc of brass shim stock six times thicker than the proper weight had been substituted. By reason of the failure of this extra heavy disc to blow out, the gas entered the beer barrel through the regulator in such a quantity beyond its pressure capacity that it caused the barrel to explode. The evidence showed that after the regulator was delivered to the Buffet by appellant the substitute disc was not placed in the safety blowout mechanism by any person having an opportunity to do so. Under the circumstances the conclusion is inevitable that the heavy brass homemade disc had been placed in the safety blowout before it left the hands of the appellant. It is not necessary that the article be identically the same as at the time in controversy, and it is also unnecessary to show an absence of tampering on the part of every person through whose hands the article has passed; as long as the article can be identified it is immaterial in how many or in whose hands it has been. 32 C.J.S., Evidence, § 607. It is next contended by appellant that there was no showing of negligence or that appellant had any knowledge of a defect in the regulator. In support thereof appellant cites section 402 of the Restatement of Torts, to wit: “A wholesale or retail dealer, who sells in their original packages goods bought from reputable manufacturers, acts as a conduit through which the goods pass from manufacturer to consumer, who buys them in reliance upon the manufacturer’s reputation for competence and. care. A vendor of such goods, therefore, is under no duty to subject them to rigid inspection or tests before selling them. * * * ” We concede that that is a good rule of law. In the case at bar, however, the facts are dissimilar. Here the evidence showed that the appellant dealt in both new and used regulators and that the regulator in question was a used one. Under such circumstances appellant is not a retailer within the purview of the above rule. Under those conditions the failure of the appellant to ascertain whether it was a used regulator before selling it as a new one, and whether it was equipped with a proper blowout disc, by examination of same before it was delivered, or to advise the owner of the Buffet that it was a used regulator and might be in a dangerous condition, constituted actionable negligence. We think it may be reasonably inferred from all the facts that the defect was one which a reasonably prudent dealer should have discovered before placing it upon the market and delivering it to a customer. One who sells or delivers a used article which he knows to be imminently dangerous to the life or limb of another without notice of its qualities is liable to any person who suffers an injury therefrom which might have been reasonably anticipated, whether there were any contractual relations between the parties or not. Bock v. Truck & Tractor, Inc., 18 Wash.2d 458, 139 P.2d 706. We think our discussion of the foregoing principles adequately disposes of the remaining assignments of error. Judgment affirmed. UDALL, C. J., and STANFORD, DE CONCINI and LA PRADE) JJ., concur. PHELPS, J., being disqualified, the Honorable GORDON FARLEY, Judge of the Superior Court of Santa Cruz County, was called to sit in his stead.

PHELPS, Justice. In granting the motion for rehearing in this case we are adopting the statement of facts in our original opinion, found in 72 Ariz. 240, 233 P.2d 450, and reaffirm the porton thereof adjudicating the issues alleged in the first cause of action between McDonald and Industrial Research, Inc. We are persuaded, however, that we misapprehended the action of the trial judge in denying appellee’s motion to amend the complaint to conform with the evidence but, notwithstanding, found in favor of appellee on the issue sought to be incorporated in the complaint by amendment. The court, twice during the trial, denied appellee’s motion to amend his complaint to conform with the evidence to include an allegation that the spark plug type machine invented by Paxton was a partnership asset under the agreement between Paxton and McDonald. The first motion was denied upon the objection of appellant, upon the ground, in substance, that depositions had been-taken within ten days previous to the trial and counsel for appellee had not exercised due diligence with respect to such amendment. The second motion to amend was denied'" in the following language: “At this time I wouldn’t permit it. I am not saying for sure I won’t some time, but not now.”' And at the close of all the evidence appellee again renewed his motion to amend upon the ground “ * * * that the proof in the matter shows conclusively that it was the intention of the parties,, Paxton and McDonald, to include other machines in this invention, and that whether or not other machines were included— The court, interrupting, said: “Of course that is something that is on an issue the jury doesn’t have to decide anyway. That isn’t a matter that we are submitting to. the jury anyhow. I will take that matter under advisement. We won’t change the issues on the first cause of action. I am not saying I won’t permit you to on the second, if I try the second cause of action. So, with that situation there is nothing to submit except the partnership. * * *" When the agreement assigning the spark plug machine to Industrial Research, Inc.,, was offered counsel for appellants objected that it was immaterial but might properly have some materiality on the second cause of action. This objection was overruled. The assignment could only be material if the court found the spark plug type machine to be a partnership asset. We are unable to understand the theory of either the court or counsel on just what was necessary to be shown in establishing a partnership relation between Paxton and McDonald. If it was only intended to establish that some kind of a partnership relation existed between them without establishing its scope and purpose, the nature of the business to be conducted, and what each partner was to contribute to the partnership assets, their share in the profits and losses, etc., then of course it was not necessary that appellee establish that the spark plug type machine was a partnership asset. If this were true it would likewise be unnecessary to establish the fact that the diaphragm type machine was a partnership asset, or to establish the character of any of its assets or of the business in which it was to engage. We are of the view that to establish such relation the entire partnership agreement should have been shown including the portion thereof relating to the spark plug type machine. Such evidence was necessary in order to establish a basis for an accounting on the second cause of action. Therefore, as stated in our original opinion, the motion to amend the complaint to conform to the evidence should have been granted as a matter of record, as the evidence was undisputed on that point. The trial court indicated in its ruling both on the second motion to amend and at the close of the case that it may permit an amendment of the pleadings to include the spark plug type machine as a partnership asset (properly holding that the issue was a question for the court to determine) finally stating that: “We won’t change the first cause of action. I am not saying I won’t permit you to on the second. * * * ” However, the court, in rendering its judgment on the first cause of action found and adjudged that the 25 shares of stock received by Paxton from Industrial Research, Inc., as a consideration for the assignment of the patent right to the spark plug type machine to it was a partnership asset. It necessarily had to find as a predicate, therefor, that the spark plug type machine was a partnership asset. In no other manner could it have reached the conclusion that the 25 shares of stock was a partnership asset. The question of whether the spark plug type machine was a partnership asset was an issue as essential to the establishment of the partnership as any other portion of the partnership agreement. We believe the question falls under the provisions of section 21-449, A.C.A.1939, Rules of Civil Procedure 15(b), relating to amendments to conform to the evidence. In the case of United States v. Cushman, 9 Cir., 136 F.2d 815, 817, the court said: “Leave to file the proposed amended answer was denied. At the trial, however, the application mentioned in the proposed amended answer was admitted in evidence without objection. There was also admitted without objection evidence that some of the foregoing answers were false. Thus the issue of fraud, though not raised by the pleadings, was tried by implied consent of the parties. Accordingly, and properly, the court treated that issue as if it had been raised by the pleadings.” And in Balabanoff v. Kellogg, 9 Cir., 118 F.2d 597, 599, the court in discussing Rule 15(b), Federal Rules of Civil .Procedure, 28 U.S.C.A., which is identical with our Rule 15(b), supra, said: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had 'been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.” (Emphasis supplied.) We can reach no other conclusion than that the learned trial judge in finding .and adjudging that the 25 shares of stock of Industrial Research (received by Paxton in consideration of the transfer to it by him of the right to patent the spark plug type machine) was a partnership asset, either treated the complaint as having been amended or reached the conclusion that the allegations without amendment were broad enough to support the judgment. Otherwise the judgment rendered by the trial court is ambiguous in that it limits the assets of the partnership to the diaphragm type machine and at the same time adjudges the consideration received for the spark plug type machine to be a partnership asset. It is said in 49 C.J.S., Judgments, § 436, that: “The legal operation and effect of a judgment must be ascertained by a construction and interpretation of its terms, * * *. If the language used in a judgment is ambiguous , there is room for construction, H* # “ * * * The intention of the court must be determined from all parts of the instrument, and words and clauses thereof should be construed . according to their natural and legal import. The judgment must be read in its entirety, and- it must be construed as a whole so as to bring all of its parts into harmony as far as this can be done by fair and reasonable interpretation and so as to give effect to every word and part, if possible, and too effectuate the obvious intention and purpose of the court, consistent with the provisions of the organic law. * ‡ * ‡ ^ ‡ “Doubtful or ambiguous judgments are to have a reasonable intendment to do justice and avoid wrong. Where a judgment is susceptible of two interpretations, that one will be adopted which renders it the more reasonable, effective, and conclusive and which makes the judgment harmonize with the facts and law of the case and be such as ought to have been rendered. If possible, that construction will be adopted which will support the judgment, rather than one which will destroy it. All presumptions are in support of the judgment; nothing will be presumed against it. “A judgment must be construed, in light of the situation of the court, what was before it, and the accompanying circumstances. In cases of ambiguity or doubt the meaning of the judgment must be determined by that which preceded it and that which it was intended to execute.” Under the interpretation by federal courts of Rule 15(b), supra, we hold that the complaint will be deemed to have been amended to conform with the evidence that the judgment rendered thereon is valid, is supported by the. evidence, and comports with justice as between Paxton and McDonald. This conclusion in nowise conflicts with Etz v. Mamerow, 72 Ariz. 228, 233 P.2d. 442, recently decided by this court. Counsel for appellant further assigned as error the inclusion in the decision a discussion of the law involved in the second cause of action for the reason that it was not in issue on appeal. In this contention appellant is eminently correct. Its inclusion was wholly gratuitous and was justifiably rejected by appellant. It should be deleted and is hereby ordered stricken'as surplus-age. Under the conclusion here reached the cost bill of appellee is approved as against Paxton and denied as against Industrial Research, Inc. The cost bill of Industrial Research, Inc., is disallowed. Certainly it is not allowable at this time. If appellee finally recovers a judgment in any amount whatever against Industrial Research, Inc., on his second cause of action it carries with it as a matter of right the recovery of all costs incurred. Judgment, as modified, affirmed. UDALL, C. J., and STANFORD, DE CONCINI and LA PRADE, JJ., concur.

LA PRADE, Justice. This is an original proceeding in mandamus commenced by the petitioners, qualified electors of the City of Phoenix, for themselves and in behalf of others similarly situated. The purpose of the proceeding is to compel the respondent, Tom Sullivan, Jr., in his capacity as City Clerk of the City of Phoenix, to accept certain petitions which the petitioners had theretofore attempted to lodge with the city clerk for the purpose of creating a new political party to be called “The Democratic Party of the City of Phoenix”, and have such party designated on the official ballots. It is alleged that these petitions were authorized and prepared in conformity with the provisions of chapter 97, Session Laws of Arizona, 1947, entitled: “An Act Relating To Elections; Providing For The Recognition Of New Political Parties, And Amending Section 55-1006, Arizona Code’Of 1939.” This section, as amended, in part reads as follows: “55-1006. New Political Parties, (a) A political organization which, at the last preceding general election, cast for its candidates for state office, or for any county or city office, not less than five per cent of the total votes cast in the state or in such county or city, shall be entitled to representation as a political party on the official. ballot for state officers, or of such county or local subdivision. (Emp.sup.)’ “(b) A new political party shall become eligible for recognition and shall be represented by an official- party ballot atv the .next ensuing general primary election and .accorded a column on the official ballot at the succeeding general election * * *. “(c) A new political party shall become eligible for recognition and shall be represented by an official party ballot at the next ensuing primary election of a county or city and be placed on the official ballot at the succeeding regular election upon filing with the clerk of the board of supervisors or the city clerk of such county or city a petition signed by a number of qualified electors equal to not less than three per cent of the votes cast for county attorney in the case of a county petition, or for mayor in the case of a city petition. * * * (Emp-. sup.) “(d) Any petition for the recognition of a new political party shall be filed not less than thirty nor more than sixty days prior to the primary election.” The petition for the writ further alleges that their petition for the creation of a new political party in the city of Phoenix contains signatures of a sufficient number of qualified electors; that it is the duty of respondent to examine the signatures and to make certification thereof,' and to- cause said new political party to be designated and printed upon - the regular ballot for the ensuing regular primary election to be held in the city of Phoenix in the month of November; and, that the respondent refused and still refuses to accept and file the petition and refused and still refuses to certify the creation of the new political party. ’ Respondent filed a motion to dismiss the petition for the writ upon the ground that as a matter of law the writ should not issue in that by the provisions of chapter 12 of the Charter of the city of Phoenix relating to elections to be conducted by the city of Phoenix, primary, general or special, “ * * * The names of. the candidates for each office shall be arranged as provided by law for nothing on the ballot shall be indicative of the source of the candidacy or the support of any candidate.” Ch. XII, sec. 9, Charter, City of Phoenix. Phoenix has a “freeholders’ ” or “home rule” charter in effect since 1914. Section 2 of article 13- of the state constitution provides that the electors of a city of more than thirty-five hundred population “may frame a charter for its own gov ernment consistent with, and subject to, the constitution and the laws of the state”; that when ratified at an election and approved by the Governor such charter “shall become the organic law of such city and supersede any charter then existing (and all amendments thereto), and all ordinances inconsistent with said new charter.” Freeholders’ charters are not uncommon in this state and this court has on many occasions been called upon to interpret these charters. In the case of Mayor & Common Council of City of Prescott v. Randall, 67 Ariz. 369, 196 P.2d 477, 478, there was under consideration the charter of the city of Prescott. In this case, we made a partial compilation of our cases construing city charters, and there said: “The rule established in all of these cases is that a charter city is sovereign in all of its ‘municipal affairs’ where the power * * * to be exercised has been specifically or by implication granted in its charter.” It is respondent’s position (1) that there is no constitutional or statutory provision in force in this state which commands that officers for cities incorporated under special charters shall be nominated or elected under a party designation notwithstanding that the charter of the city of Phoenix specifically provides that “nothing on the ballot shall be indicative of the source of the candidacy or the support of any candidate.” (2) that none of the provisions and amendments thereto of chapter 55, A.C.A.1939, relating generally to elections for state, county and city offices, have any application to the city of Phoenix except insofar as some of the state procedures have been specifically adopted by the charter of the city of Phoenix or ordinances adopted thereunder. In seeking this writ, it is the theory of petitioners that article 7, section 10 of the Constitution and implementing legislation, Ch. 55, A.C.A.1939, enacted for the purpose of vitalizing the same, clearly show that it was the intention of the framers of the Constitution that the voters in nominating candidates in all elections for state, county and city offices shall have the privilege of exercising their choice through a mandatory primary system and through political parties; that in view of the provisions of sections 55-1005, 55-1006 and 55-1024, A.C.A.1939, the matter of nominating candidates for city offices is of such state concern that where there is a conflict between the provisions of the charter of a self-governed city and the statutory law, the former must give way to the latter. If the matter of selecting officers for charter cities can be said to be a subject of state concern, then we think the rule suggested states a correct principle of the law but in our opinion not applicable to the case under consideration. The constitutional provision which it is claimed makes the partisan primary system a matter of state concern, Article 7, section 10, supra, reads as follows: “The legislature shall enact a direct primary election law, which shall provide for the nomination of candidates for all elective state, county, and city offices, including candidates for United States senator and for representative in congress.” The first legislature immediately after statehood and several subsequent legislatures sought to give effect to this constitutional mandate. Several of these acts of the legislature have been called to our attention but in the view we take of the law the case does not turn so much upon the construction to be placed upon the statutory provisions as it does upon the settled construction which this court has placed upon section 2, article 13, Constitution, supra, which, in part, provides that “Any city containing, now or hereafter, a population of more than three thousand five hundred may frame a charter for its own government consistent with, and subject to, the constitution and the laws of the state * * *.” (Emp.sup.) This provision conferring upon a qualified city power to frame a charter for its own government is not an enabling act conferring carte blanche authority or plenary power to adopt any legislation that it might desire. There is a restriction that any charter provisions adopted must be “consistent with, and subject to, the constitution and the laws of the state”. The Supreme Court of Oklahoma has had occasion to consider and construe this identical constitutional limitation upon the power of charter cities in the matter of framing a charter for their own government. In the City of Wewoka v. Rodman, 172 Okl. 630, 46 P.2d 334, 335, it is said: “We believe that the charter should be construed in accordance with the well-settled construction of the authorizing provision of the Constitution, remembering that ‘subject to,’ ‘restrained by,’ and ‘consistent with’ in this connection have identical meanings. In the leading case of Lackey v. State [ex rel. Grant] 29 Okl. 255, 116 P. 913, 915, the contention was made that the constitutional requirement that the charter should be ‘consistent with and subject to the Constitution and laws of the state’ rendered invalid every provision of the charter in conflict with any statute of the state, whether pertaining to the general affairs of the state or to' matters purely municipal. This court refused to accept this interpretation, and held that the intention was not to require the charter to conform to every statutory provision, but only to those that were not confined to purely municipal affairs. The principle so announced has never been departed from, and applies with equal force to the interpretation of the Wewoka charter. We conclude that the intent of the charter provision in question was the.same as that of the Constitution, to wit, to make the provision in question subject to any provision of the state law, that goes beyond purely municipal affairs. * * *» We believe that the foregoing interpretation and construction is entirely applicable to our own constitutional provision and in harmony with our own pronounce ments. See City of Prescott v. Randall, supra. Since the early case of Yuma Gas, Light & Water Co. v. City of Yuma, 1919, 20 Ariz. 153, 178 P. 26, down to and including the late cases of City of Tucson v. Tucson Sunshine Climate Club, 1945, 64 Ariz. 1, 164 P.2d 598; Maxwell v. Fleming, 1946, 64 Ariz. 125, 166 P.2d 831; and City of Tucson v. Arizona Alpha of Sigma Alpha Epsilon, 1948, 67 Ariz. 330, 195 P.2d 562, this court has uniformly held that a city charter, when regularly adopted and approved, becomes the organic law of the city and the provisions of the charter supersede all laws of the state in conflict with such charter provisions insofar as such laws relate to purely municipal affairs. In Maxwell v. Fleming, supra, this court had before it the question of the constitutionality of section 15, chapter 12 of the charter of the city of Phoenix. This section provides that any candidate at a city primary election who receives a majority of all votes cast at such election shall be declared elected and that no further election shall be held as to said candidate. The contention was made that this charter provision was in conflict with article 7, section 10 of the Constitution of Arizona, which is the constitutional provision directing the legislature to enact a direct primary law which shall provide for the nomination for all elective state, county and city offices. It is to be noted that the charter made provision for a primary and in addition thereto provided that when a candidate received a majority of the votes at the primary, he was elected. The state statutes did not authorize this declaration of election on receipt of a majority of the votes upon a primary election. With reference to the contention, we said [64 Ariz. 125, 166 P.2d 832] : “We do not think that section 15, supra, is subject to any constitutional inhibitions. Article 7, section 10, of the Constitution of Arizona, provides for a direct primary election law at which all elective state, county and city officers, including candidates for United States senators and for representatives in congress, shall be nominated. The city charter provides for this primary. There is no constitutional provision which would prevent either the state legislature or the city charter from providing that in city primaries the candidate receiving a majority of all the votes cast shall be declared elected. No such provision could be made so .far as state, county or other officers are concerned since under another constitutional provision they must be elected at the general election. Article 7, section 11, Constitution of Arizona. This provision does not, of course, apply to city officials. Since the constitution is merely a restriction on what the legislature or the people may provide in a home rule charter, there is no constitutional reason which would vitiate section 15. In the absence of a constitutional or lawful restriction, the legislature has full power to act, and the same is true of the people under a home rule city charter, within limitations imposed hy the constitution and the law.” Some difference' of opinion is evidenced in the reported cases as to what activities of a charter city are of local interest or concern and therefore free from legislative interference. See cases cited in Luhrs v. City of Phoenix, 52 Ariz. 438, 83 P.2d 283. This court has 'had occasion to interpret various charter provisions of several of our cities where the question to be determined was the nature' of the charter provision or ordinance enacted thereunder, that is, whether the subject matter was of local concern or statewide interest. The following references are indicative' of the court’s views on different fact situations. In Clayton v. State, 1931, 38 Ariz. 135, 297 P. 1037, a city ordinance of the city of Phoenix attempting to regulate traffic on the public streets was held to be invalid and without the jurisdiction of the city in that the state had enacted general legislation regulating traffic upon the public highways. In this case it was pointed out that there were statutory provisions reserving to cities and towns the power over local parking and other special regulations. In Luhrs v. City of Phoenix, supra, it was determined that the matter of pensioning policemen and fixing minimum wages for policemen and firemen were matters of statewide concern and not subject to legislative action by a chartered city. In State v. Jaastad, 43 Ariz. 458, 32 P.2d 799, and City of Phoenix v. Drinkwater, 46 Ariz. 470, 52 P.2d 1175, it was held that minimum wages on public works for manual and mechanical labor done for a city with a freeholders' charter is of statewide concern; other holdings are that taxes and tax liens are of statewide concern and not local or municipal, Home Owners' Loan Corp. v. City of Phoenix, 51 Ariz. 455, 77 P.2d 818; that the city of Yuma, a charter city, could not tax real property of a private car line in view of the requirement of the Constitution, article 13, section 2, that city charters must be consistent with and subject to the Constitution and laws of the state (there were state statutes taxing the same property), Pacific Fruit Express Co. v. City of Yuma, 32 Ariz. 601, 261 P. 49; that the state budget law is a matter of great public concern and applies to home rule cities, American-La France & Foamite Corp. v. City of Phoenix, 47 Ariz. 133, 54 P.2d 258; that the manner and method of disposal of real estate of a city is not a matter of statewide concern, City of Tucson v. Arizona Alpha of Sigma Alpha Epsilon, supra; that a home rule city is not affected by the interdiction of a general statute limiting expenditures for advertising. City of Tucson v. Tucson Sunshine Climate Club, supra. As heretofore pointed out, the question of what election laws apply in the city of Phoenix has received the consideration of this court in the case of Maxwell v. Fleming, supra. The general principles, stated therein are applicable in the instant case although the particular question presented here is a matter of first impression. Municipal elections may be, and usually are, provided for and regulated by the charters of the so-called homerule, freeholder or constitutional charters. See McQuillin, Municipal Corporations 3rd Ed., Vol. 3, p. 52. Municipal elections and the choice of municipal officers have been held to be matters of local concern under charters similar to that of the city of Phoenix. In the case of State ex rel. Short v. Callahan, 1923, 96 Okl. 276, 221 P. 718, 719, there was presented to the court for determination the question of whether the mandatory primary system for the nomination of elective city officers was a matter of such grave concern that it could not be dispensed with and another method adopted by charter cities in nominating and electing purely municipal officers of a self-governing city. Oklahoma's constitution provided for primary elections and was similar to our constitutional provision, article 7, section 10. In addition thereto, it had a constitutional provision practically identical with our constitutional provision, article 13, section 2, authorizing cities with a population of more than thirty-five hundred to "frame a charter for its own government, consistent with and subject to the Constitution and laws of this state * * *". Const.Okl. art. 18, § 3(a). The legislature of Oklahoma, in implementing constitutional provision for a direct primary law, adopted statutory provisions relating generally to elections, and of the tenor found in our chapter 55, A.C.A. 1939 relating to elections in the state, counties and cities. The same contention was there made as is being contended for here and as was asserted in our case of Maxwell v. Fleming, supra. In disposing of the contention here made, we quote approvingly from this Oklahoma case wherein it demonstrated the fallacy of petitioners' interpretation of the law: “ * * * We concede that it was the purpose of the framers of the Constitution to extend the primary mandatory system throughout the state, in so far as this could be accomplished without infringing upon or limiting the direct and positive constitutional grant of power to the class of cities mentioned in section 329 (article 18, § 3a), Williams’ Constitution, supra, to wit: Cities containing a population of more than 2,000 inhabitants, the Constitution provides, may frame a charter for their own government. "It has been held that the purpose of this constitutional provision is to emancipate the municipal governments of cities containing a population of more than 2,000 inhabitants from the control formerly exercised over them by the Legislature. And that a city charter adopted pursuant to this provision becomes the written Constitution of the municipality. In re Initiative Petition, City of Okmulgee, 89 Okl. 134, 214 P. 186. “It being definitely settled, as we have seen, by a long line of decisions, that a city charter when adopted by the people and approved by the Governor, pursuant to section 329 (article 18, § 3a), Williams’ Constitution, becomes the organic law of the city, and that the provisions of the charter supersede all laws of the state in conflict with such charter provisions, in so far as such law relates to purely municipal matters, it cannot be presumed, in view of this provision of the Constitution and the construction placed upon it by the courts, that the framers of the Constitution intended that the direction to the Legislature contained in section 5, art. 3, supra, should infringe upon or limit the specific grant of power to the self-governing cities of the state. There can be no doubt' whatever that the right of charter cities to govern themselves, in purely municipal affairs, is (not) a matter of state concern. The right is specifically provided for and safeguarded by the Constitution itself, and we perceive no purpose in any other provision of the Constitution or any constitutional direction to the Legislature to place any limitations whatever upon this right. * * » For cases from other jurisdictions holding in effect that city elections in charter or home rule cities are a matter of local interest and concern and governed by charter provisions rather than the general laws of the state, see Curtis v. Tillamook City, 88 Or. 443, 171 P. 574, 172 P. 122; State ex rel. Stone v. Andresen, 110 Or. 1, 222 P. 585; Lail v. People ex rel. Osgood, 75 Colo. 459, 226 P. 300; State ex rel. Hackley v. Edmonds, 1948, 150 Ohio St. 203, 80 N.E.2d 769; People ex rel. Martin v. Worswick, 142 Cal. 71, 75 P. 663. The framers of the Constitution, in authorizing a qualified city to frame a charter for its own government, certainly contemplated the need for officers and the necessity of a procedure for their selection. These are essentials which are confronted at the very inception of any undertaking looking toward the preparation of a governmental structure. We can conceive of no essentials more inherently of local interest or concern to the electors of a city than who shall be its governing officers and how they shall be selected. Under the premises before us, article 7, section 10 of the Constitution and all implementing legislation must be construed to have reference to elections held in cities incorporated under the general laws of the state and which have not qualified for self government under a charter. We therefore specifically hold that the method and manner of conducting elections in the city of Phoenix is peculiarly the subject of local interest and is not a matter of statewide concern. We further hold that the provisions of the charter of the city relating to elections to be conducted by the city are controlling, that under the charter provision “names of candidates shall be printed on the ballot with nothing to indicate the source of the candidacy or of the support of any candidate”. Petitioners, in seeking to create a new political party under the provisions of section 55-1006, supra, are flying .in the face of this controlling charter provision when they attempt to have their political party represented on the official ballot and “accorded a column on the official ballot”. The law being what it is, as we have interpreted it, the motion to dismiss is granted and application for the writ is denied. UDALL, C. J., and STANFORD, PHELPS, and DE CONCINI, JJ., concur.

UDALL, Chief Justice. The sole question presented by this appeal is whether the trial court erred in holding that the members of the civil service board of the city of Phoenix, respondents-appellants, acted without or in excess of their jurisdiction in sustaining the dismissal from service of Hobert Marberry, petitioner-appellee, a bus operator in the department of transportation of the city of Phoenix. The Phoenix city manager by an order in writing dismissed petitioner, a civil service employee, from his job for the reason that Marberry had allegedly five times violated a lawful and official regulation, to wit: Rule 42(b) of the rules of the civil service board, the material part of which reads: “Operator’s Responsibility “Operators are held responsible- for: “(b) Collecting and proper accounting of all fares and tickets.” Petitioner after his dismissal employed counsel and, following Rule VIII of the procedure outlined in the board’s rules, filed an answer denying the charge and requested a hearing before the civil service board. This request was granted and the record before us contains a 90-page transcript of the testimony taken at such hearing. (It was a combined hearing of the charges against petitioner and two other bus operators who had been similarly discharged.) The members of the respondent board unanimously upheld petitioner’s dismissal. Petitioner subsequently obtained a writ of certiorari, Ch. 28, Art. 1, ACA 1939, to review the action taken, which it was alleged was not justified by the evidence presented and hence was beyond the board’s jurisdiction. See City of Phoenix v. Sittenfeld, 53 Ariz. 240, 88 P.2d 83. The complete record of the proceedings was transmitted to the superior court. At the hearing before the court the rules of the city transportation system and of the civil service board were admitted in evidence by stipulation. After oral argument and the submission of briefs the court entered written judgment vacating and declaring void the order of dismissal. This appeal followed. The unconflicting evidence upon which the dismissal was based shows that due to an appreciable non-seasonal drop in revenue, particularly on the transportation system “long runs”, the Phoenix superintendent of transportation brought in from outside the city two experienced women “checkers”. These women testified that on three separate occasions, involving five fares, petitioner accepted from one of them the proper fare (35‡ each on petitioner’s Litchfield Park run) without requiring them to deposit the fare in the fare box and that during the 45-minute run, to their knowledge, the driver did not place their fares in said box. They stated that part of the money (the smaller coins) given by them to the driver went into petitioner’s “money changer” but that they were not sure just what happened to the larger coins (half dollars). There was no testimony as to whether petitioner did or did not account for these fares at the end of the day. The superintendent explained in considerable detail the manner in which the mechanical fare box registered the small coins deposited therein. The fare box is a metering device which records the number of coins of each type which passes through it; it will not take any coin larger in diameter than a nickel. The proper fare in small coins must be deposited in the fare box in order for the same to be recorded, and if a customer does not have the correct change in small coins the bus operator will make change for him so that the proper amount may be deposited by the customer in the fare box. The operator at all times has access to all the moneys collected. The superintendent further testified that immediately after it became generally known that "checkers” were riding the busses the revenue, on the entire system increased some $200 per day. Petitioner did not see fit to take the witness stand, and there is no refutation of the testimony given by the women checkers. The entire defense consisted of a motion to dismiss the charge and to reinstate the petitioner to his old position. It was shown that at the end of the day the petitioner did account for all money that was deposited in the fare-box, i. e., he paid over to the city of Phoenix all of the money that went through the fare box and was recorded by it. The trial court in annulling and vacating the city manager’s orde'r of dismissal took the view, urged by petitioner, that there was a fatal variance between the charge, i. e., violation of Rule 42(b), supra, and the proof adduced which, it is argued, shows only a violation of Rule 30, section 1, Fare Boxes, which reads: “Operators in making change, must return entire amount of change to the patron and see that proper amount is deposited in fare box. Under no circumstances shall the operator deposit fare for passenger.” The respondent board on the other hand contends that the term “proper accounting” as applied to the collection of fares under Rule 42(b), supra, necessarily means the recording of the transaction at the tine it occurs by immediately having the fare deposited in the fare box where the mechanical metering device incorporated therein provides an automatic record that forms the only true basis for an accurate accounting between the bus operator and the city at the close of the operator’s services for the day. The board urges that to hold otherwise would be to give sanction to the bus driver’s keeping the funds in his possession until the end of the run and then the sort of record or accounting which would follow would obviously be one in which mistakes, errors and omissions would inevitably occur. In the instant case both the city manager and the respondent board drew the inference from the evidence presented that petitioner had failed to properly account at any time for the five fares which the “checkers” testified were not. deposited in the fare box during the trip. While it is a rudimentary principle that the allegata and probata must correspond, yet we are of the opinion that the trial court in annulling the respondent board’s- order as being in excess of its jurisdiction took an altogether too narrow view of the meaning of the term “proper accounting” as used in Rule 42(b), supra. The chief method provided by the city for a “proper accounting of all fares” received by the operator during his period of service was to make a record of such receipts at the time received by him. This record was made by requiring the customer to immediately deposit his fare in the device furnished by the city. This constituted so to speak the original entry of the amount received. In no other way could a proper accounting be made of such receipts. True it might have been wiser for the city manager to have given as the reasons for dismissing petitioner violations of both rules—Rules 42(b) and 30, section 1—the latter violation having been tacitly admitted, yet in view of the fact that the requirement of forthwith depositing the fare in the fare -box is an integral and necessary part of the accounting procedure required by the city transportation system, we do not believe that there is a fatal variance between the charge made and the proof submitted in support thereof. Hence we hold that the lower court erred in vacating and holding void the action of the respondent board sustaining the city manager’s order dismissing petitioner. It should be noted that under the rules of the respondent board there may occur violations of Rule 42(b) that would not involve a violation of Rule 30 (section 1). But under the circumstances as here presented the failure to deposit the proper amount in the fare box would invariably result in a violation of the rule as to proper accounting. Judgment reversed, with directions to quash the writ. STANFORD, C. J., and PHELPS, DE CONCINI and LA PRADE, JJ., concur.

GIBBONS, Superior Court Judge. This is an appeal from judgments and', orders of the superior court of Pima County decreeing certain slot machines property illegal per se, directing the destruction-, thereof, and denying owners’ motion to return money contained therein at the _ time of seizure. Since the docketing of this appeal, by stipulation of counsel there has been an order substituting (a) Frank A. Eyman,. present sheriff of Pima County, Arizona,, as appellee for and in stead of Jerome P. Martin, former sheriff, and (b) Robert: Morrison, county attorney of Pima County in lieu of Bryce H. Wilson, former county attorney. It was the former officers who-initiated the proceedings here under review. The stipulated and established facts necessary to a determination of this case are-that Jerome P. Martin, as sheriff of Pima County, seized, without a search warrant or other legal process, certain slot machines and money contents located on and within the property of the Tucson Press Club, the El Rio Golf and Country Club, and the Old Pueblo Club, respondents, appellants, whose premises are open only to members and invited guests, and not to the public. Criminal complaints were filed in the justice court charging each manager with the crime of permitting the operation of slot machines on the premises of his respective club. Defendants moved for a suppression of the evidence (consisting of the said machines and money contents) and for a return thereof, which motion was granted and petitioner directed to replace all property seized t'o the locations and in the same condition as when removed from said premises. The sheriff appealed from this order and the superior court of Pima County, on August 15, 1949, dismissed said appeal and remanded the case to the justice court for further proceedings. Thereupon the sheriff was again ordered to return the property taken. On September 13, 1949, the club managers were tried on the criminal charges pending and each severally acquitted. On August 16, 1949, petitioner initiated proceedings in the superior court for the destruction of the slot machines under section 7, chapter 110, Session Laws of 1947, section 12-423, A.C.A.1939, Cumulative Pocket Supplement. The respondents answered the petition, admitted and claimed ownership of the slot machines, but alleged the seizure was unlawful and void and that petitioner did not have legal custody thereof. Respondents contend that all matters involved herein were adjudicated in the justice court, that the trial court herein had no jurisdiction to hear this matter, that the property was not in custodia legis and the proceeding was and is “extra judicium”. Motions for summary judgment and for the return of the money were also filed at the time of the answer. One of the grounds alleged in the motion for summary judgment was that section 7, chapter 110, supra, is unconstitutional under article 4, part 2, section 13, of the constitution of Arizona, in that the subject matter contained in section 7 is not within the scope of the title of the Act. These motions were denied, the slot machines were adjudged illegal per se and ordered destroyed. From the foregoing facts we concur in the conclusion expressed by the trial court that these proceedings are separate and distinct and are in nowise controlled by the action taken in the justice court. Respondents have made nine assignments of error, supported by appropriate conclusions of law, all of which need not be considered to effectually determine this appeal. The first contention is that the court erred in ordering the slot machines of respondents destroyed, for the reason that section 7, chapter 110, supra, is unconstitutional, in that the subject matter is not expressed directly or by implication in the title of the Act as required by the constitution of Arizona, which provides : “Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.” In re Lewkowitz, 69 Ariz. 347, 213 P.2d 690, as modified by the later opinion in the same case, 70 Ariz. 325, 220 P.2d 229, we enumerated and reaffirmed the well-established rules of statutory construction that are controlling in determining the legal sufficiency of the title to a legislative Act. We deem it unnecessary to -again restate these governing principles. In determining the extent and operation of the Act in question we have to consider not only the law itself, but its title. Valley Nat. Bank of Phoenix v. Glover, 62 Ariz. 538, 159 P.2d 292. The title reads as follows: “Relating to Unclaimed Money or Property in the Hands of Public Officials; Providing for the Disposal Thereof; Repealing Sections 12-415, 12-416 and 12-417, Arizona Code Annotated, T939, and Declaring an Emergency.” Section 7 of the Act provides: “Sec. 7. Property Unlawful Per Se. Where property has been seized which, in the opinion of the officers having custody thereof, is so constructed that it is incapable of being lawfully used, the person having custody thereof shall petition the court for an order directing the destruction of such property. The petition and notice shall be in the form required for unclaimed property herein-before provided. If upon default or hearing the court shall adjudge the property illegal per se, the court shall order the property be destroyed by the petitioner.” Query: Does the title of the Act embrace the subject (and matters properly-connected therewith) of section 7, when interpreted in the light of and in conformity with the rules of statutory construction heretofore approved by this court? The-title begins with the words: “Relating to-unclaimed money or property”. Is all' money or property in the hands of public-officials the subject of the Act, or is the-legislation to follow restricted to such property as is unclaimed ? “ ‘Unclaimed’’ in the statute can mean nothing but ‘unclaimed within a reasonable time after-notice’ (Hedges v. Hudson R.R. Co., 49 N.Y. 223), and what is a reasonable time must be determined by the circumstances attending each case." Leech v. New York, N.H. & H.R. Co., 40 Misc. 654, 83 N.Y.S. 166, 168. Construing article 11, section 8, of the constitution of Arizona, in the case of In re Hull Copper Co., 46 Ariz. 270, at page 279, 50 P.2d 560, at page 563, 101 A.L.R. 664, relative to "unclaimed shares and dividends" we said: "This provision is substantially an escheat to the state, * *. It is sufficient to show that the shares and dividends have been unclaimed for such a time as would indicate that they probably will not be claimed.” Chapter 110, Session Laws of 1947, is substantially an escheat to the state, but is not covered by the principles or limited by the conditions of Ch. 27, A.C.A.1939, Secs. 27-1101 et seq., relating to Escheats. “Escheat originally means an interruption or obstruction of the ordinary course or descent of real property, in which case the property results back by a kind of reversion to the original grantor, but it has now come to signify the passing of a decedent’s estate into the general property of the state on his death intestate and without lawful heirs, and is applied indifferently to all rights of property. It is based on the theory that when the owner of property dies leaving no one authorized to take it either by will or descent, the state is the universal heir. “It will be seen that the law of escheat only comes into play when the owner of property has died intestate and without heirs, and all valid escheat proceedings must necessarily establish (a) the fact of death, and (b) that there is no one qualified after such death to take the property. It frequently happens, however, that property is left apparently ownerless, with nothing to show that the owner has died, or, even though he has died, that he leaves no heirs. It is, therefore, universally held that there must be some judicial determination both of death and lack of heirs before, the escheat can take place. This is recognized by our general statute of escheats, which sets up a complete method of securing such judicial determination by a proceeding in court, with proper service on all the interested parties. Art. 11, chap. 27, A.C.1939. The principles of procedure set forth in this article are, in substance, those adopted by all states which have general escheat statutes. Many states, in addition to their general statutes, have adopted special statutes providing for the escheat of bank deposits which have been inactive for a certain length of time. But all of these special statutes, no matter what time of inactivity they provide, are necessarily based upon the same fundamental principle that the owner of the deposit has died intestate and leaving no heirs. The particular time set forth in the different statutes during which the deposit must have remained inactive is fundamentally a rule of evidence raising a presumption of death, and not a substantive law affecting the title to. property. Were it otherwise, any law which arbitrarily deprived the owner of his property on account alone of the lapse of a certain period of time in which he had' failed to assert his ownership, would unquestionably violate the state and federal constitutions as depriving him of his property without due process of law.” State of Arizona v. Phoenix Savings Bank & Trust Co., 60 Ariz. 138, 132 P.2d 637, 638. “Escheat proceedings, * * * are similar to the statutory proceedings to establish heirship in probate, and have no effect upon the title itself, but merely establishes judicially in whom it is. * * * ” Arizona Land & Stock Co. v. Markus, 37 Ariz. 530, 296 P. 251, 254. The vital issue in escheat is the death of the owner of the property and that he left no heirs. The particular time set forth in the statute in which the property must have remained unclaimed is fundamentally a rule of evidence raising a presumption of death and not a substantive law affecting the title to property. State of Arizona v. Phoenix Savings Bank & Trust Co., supra; Arizona Land & Stock Co. v. Markus, supra. Therefore, the word “unclaimed” as used in the title to and in the Act, chapter 110, supra, for the period therein set forth is the basis upon which the proceedings may be commenced, the death of the owner and that he has no heirs established and that the title of the property pass to the state as the universal heir. On the other hand, section 7 of the Act. is substantially a condemnation statute and the vital issue is whether the property is so constructed that it is incapable of being lawfully used. If so constructed it is adjudged unlawful per se and ordered destroyed. To remain unclaimed is not an essential element of this proceeding. It is significant in the instant case, that at all times material hereto, the slot machines and money contents have "been and now are claimed by the respondents. The title in question relates to the method of establishing that the state may become owner of certain property through escheat, clearly referring to and contemplating property that may be owned and/or lawfully possessed. While section 7 of the Act relates to the protection of public morals through condemnation and destruction of property incapable of lawful use and subject to being adjudged illegal per se. The answer is readily apparent. The content of section 7 is not embraced within or properly connected with the subject expressed in the title. This title, neither directly nor by implication, suggests that there will be incorporated in the Act provisions outlawing property that theretofore had been the subject of legal ownership. This innocuous title, “Relating to Unclaimed Money or Property in theg Hands of Public Officials” and providing for its disposition, does not remotely suggest or intimate that certain property is being labeled contraband and subject to destruction. We therefore conclude and expressly hold that section 7 of chapter 110, Session Laws 1947, is unconstitutional and void for the reason that the subject matter of the section is not expressed in the title of the legislative Act as required by the constitutional mandate. That gambling is a social evil that eats at the very heart of public welfare and destroys moral and financial stability, does not authorize executive officers nor the judiciary to order the destruction of devices used for this purpose unless authorized by legislative Act. We are bound by law as it is and not by what it should be. Our neighboring state has met this troublesome problem with a law that is recognized as a model statute. See California Penal Code, sec. 335a; and chapters 17 and 18 of the 1st Ex.Sess. 1950, Pen.Code, §§ 330b, 330.1 et seq., as found in the 1951 Pocket Supplement, supra. The next objection for consideration is assignment of error number seven that the trial court erred in denying respondents’ motion to return the money in the slot machines at the time of seizure. On January 28, 1935, in State of Arizona v. Fifteen Slot Machines, 45 Ariz. 118, 40 P.2d 748, 749, the late Justice Ross speaking for this court, said: “The trial court disposed of this case as it did case No. 3472, State of Arizona v. Gambling Equipment, [45 Ariz. 112], 40 P.2d 746. The proceedings in the- two cases are very much alike. They differ in this very material respect: (Emp. sup.) In case No. 3472 the gambling equipment was seized under a search warrant and was thereafter in custodia legis. In the present case the slot machines were seized by the sheriff and taken away from the operators or owners without any warrant or process whatever. The owners or operators were not arrested or charged with any offense. These slot machines were never in custodia legis, as was the-gambling equipment in case No. 3472. “The statutes- authorize a peace officer to arrest a person who is committing a crime in his presence * * *, but we know of no law that authorizes such officer to seize the means with which the crime was committed, except as evidence against the criminal. The law does not provide for the seizure of gambling devices nor for their forfeiture or destruction. * * (Emp. sup.) “The whole proceeding was extra judicium. We have no law authorizing the sheriff to take possession of or seize gambling implements simply because they are such. He may arrest the one violating the gambling law upon a warrant, or without a warrant if the offense is committed in his presence, but he cannot go out into his bailiwick and pick up-gambling devices or other instruments or implements of crime and report them to-the * * * superior court and thus confer jurisdiction on the .court to order their destruction.” This money, either separately or in connection with said slot machines, has never been introduced in evidence, or is. not now being held as evidence against a defendant, or defendants, in any criminal proceeding. As far as this case is concerned, it was seized without search warrant, or legal process, and reported to the superior court with said machines for disposition under the provisions of said section 7, supra, herein found to be un constitutional. The existing law relative to possession, seizure and disposition of gambling devices as such is the same today as it was when the opinion in the case of State of Arizona v. Fifteen Slot Machines, supra, was written. It follows that the money was never in custodia legis and that the proceeding was extra judicium. In view of the foregoing it is not necessary to consider the other assignments of error and propositions of law. The judgments and orders of the court appealed from are reversed and remanded with instructions that the trial court grant respondents’ motion for summary judgment and their motion for return of the money. UDALL, C. J., and STANFORD, PHELPS and LA PRADE, JJ., concur. DE CONCINI, J., having announced his disqualification, the Honorable J. SMITH GIBBONS, Judge of the Superior Court of Apache County, was called to sit in his stead.

LA PRADE, Justice. This case is before the court on certiorari to review an award of the industrial commission denying death benefits to the applicant-widow for the death of her husband, alleged to have been caused by accident arising out of and in the course of his employment. The .deceased employee, while actively engaged in his employment as a gasoline filling-station attendant, was set upon by two robbers, severely kicked in the area of the abdomen and right side, and shot in the left shoulder. These events transpired shortly after midnight on February 3, 1950. The victim was immediately taken to a hospital where he was treated by Dr. G. B. Stewart of Coolidge, Arizona. On February 7th he was released from the hospital, at which time the attending physician was of the opinion that he would need no further. treatment and would be able to return to work by February 17th. He reentered the hospital on the evening of February 10th, suffering from intense abdominal pains. He was seen early the next morning by Dr. Stewart, at which time patient was complaining of considerable pain radiating from all around the stomach area “up to—into the heart—and into his left arm,”- and thready, with blood pressure quite low. The doctor ordered that he be given oxygen and was about to direct additional treatment and care when the man suddenly died. In view of the fact that the patient died so quickly and suddenly, the doctor made a tentative diagnosis of. coronary thrombosis. His pulse was weak An autopsy was performed by Doctors Maurice Rosenthal and James R. Moore. The autopsy report of Dr. Rosenthal reads in part as follows: “ * * *. There was a- diffuse, retro-peritoneal hemorrhage found in the abdominal portion. The inferior vena cava was essentially normal but surrounded by blood and blood clot. No thrombi or emboli were found within the lumen of the inferior vena cava. Just at the bifurcation of the aorta a fusiform aneurysm approximately the size of a hen’s egg was found and a perforation measuring 3 cm. in diameter was noted. The inner lining of this aneurysm presented an attached, organizing blood clot. The hemorrhage traveled also along the mesenteric artery and ran upwards and under the diaphragm leaf. The tracheal and tracheobronchial lymph nodes were small and anthracotic in. appearance. The tracheal and bronchial mucosa revealed a moderate degree of congestion. iji * Hi * * * “ * * * At the bifurcation of the aorta, a fusiform aneurysm previously described was noted and the gross appearance was that of an arteriosclerotic aneurysm with spontaneous rupture. ‡ ‡ ;}c ‡ “Conclusions: The immediate cause of death in this subject was due to a rupture of an arteriosclerotic aneurysm at the bifurcation of the aorta with retroperitoneal hemorrhage. No relationship could be established between the bullet wound in the left shoulder and the immediate cause of death. “From the clinical history obtained it appeared that the subject was said to be recovering satisfactorily from the bullet wound sustained several days previously and no anatomical relationship between this wound and the rupture of the aneurysm of the aorta could be established at the postmortem examination.” (Emp. sup.; We also quote from the autopsy report of Dr. Moore: “ * * *. On removing the thoracic and abdomen viscera en bloc the hemmorrhage was found to be retroperitoneal and quite extensive. The hemorrhage originated from a rupture of an aneurysm of the abdominal aorta located just above the bifurcation into the iliacs. The walls of the aneurysm showed marked calcified deposits and clots within the lumen. * * * “ * * * Correlating this clinical history with gross findings at postmortem, death was undoubtedly due to the rupture and hemorrhage of the above described abdominal aneurysm which was of the arteriosclerotic type. “From these findings it would appear that death was not caused or hastened by the shoulder wound." (Emp. sup.) At the formal hearing before the commission, and here, the applicant advances the theory that the evidence conclusively discloses that the aneurysm and resulting hemorrhage 'had been caused or in part induced by excitement, nervous shock, the kicking, and the gun shot wound. To support this theory Dr. Stewart testified as follows: “Anything that would produce undue tension would have a tendency to contract, make the vessel wall contract. In the process of contracting a thin wall, you might make the thing rupture. Trauma would possibly rupture or at least might even blow out a little hole and cause a leak in the blood vessel letting the blood escape out into any part of the body where your aneurysm is in. * * * * * * “A. I think it would be far-fetched for .me to say that that was the immediate cause of death. Yet I felt this certainly provoked the symptoms that would be conducive to produce the fatal end of the thing, because the nervous tension, because the extra contraction, the blow in the abdomen could have caused a small leak. That is a hypothetical question that I don’t think that I can definitely say so or not. % ‡ - “A. I think that was one of the main factors. I think that had Mr. Hewitt not sustained the injury he had he probably would be alive today and going along and working. I see no reason why he wouldn’t have gone along because he had been doing it." (Emp. sup.) íJí H* ❖ ‡ ‡ After giving this testimony he was asked to examine the autopsy findings and conclusions of the autopsy doctors. Having examined these reports the following questions and answers ensued: “Q. * * *. Now, do you disagree with their findings in that respect? “A. Well, I base my statement on this fact. That nervous tension, regardless of what it might be from, has a tendency to accentuate or exaggerate any circulatory disturbance. You might have—in other words, supposing he had the aneurysm before, certainly being kicked in the belly and in the side and shot through the shoulder wouldn’t help the condition any and could be a possible factor, any traumatic injury, to cause his hemorrhage, or at least, that zuould be my opinion.” (Emp. sup.) Dr. Stewart further testified that when he first examined deceased the patient did not complain about having been kicked in the stomach but “more in his side and in his ribs up in the left.” He admitted that he had examined him for bruises but that there was no external evidence thereof. The doctor was asked if the rupture of the aneurysm could have been caused by a kick or bruise of which there was no external evidence. His answer to this inquiry was: “I think it is possible. It is not a usual thing.” (Emp. sup.) Additional questions and answers then followed: “Q. And do you think it’s probable that that was what ruptured the aneurysm, any blow or kick he might have received, or only possible? “A. Well, I’d say it would be a factor in the thing. Now as to probability or possibility, the whole injury to me would be probably a little more significant—had he not been shot in the shoulder and merely kicked in the side of his tummy, it might not have produced it but the accumulation of all of it together, I think, was a factor in his—probably in the ruptured aneurysm. * * * * * * “Q. In your opinion, this aneurysm which was ruptured was caused by the injuries he received on February 3rd in view of the fact he appeared to be normal and zvorking and in good health immediately prior to that, is that correct? “A. That would be a factor in it. Whether or not it could be the sole cause, I don’t think I can say or anybody else could.” (Emp. sup.) The doctor said that the blows might ihave caused a small leak, and then “I don’t think it caused the big leak. This rent appeared too long afterwards. It could have caused a small leak and that, in turn, by necrosis of the tissue, could have weakened the wall of the vessel.” (Emp. sup.) «A; * * *. That hemorrhage around that small rent could have so weakened the tissue that the wound could have healed over and apparently recovered from his gunshot wound but his activity at home, any movement he might have had might have caused a sudden new aneurysm. The original thing could have been a small rent from his injury. That’s the thing I can’t say.” (Emp. sup.) After the hearing before the commission, all of the testimony of Dr. Stewart was submitted to the autopsy surgeons. Dr. Rosenthal reported back to the commission as follows: ’ “The new evidence submitt(ed) concerning this case has been considered. However, in view of the fact of the time elapsed following the gunshot wound and the sudden onset of the abdominal symptoms, it would appear that no definite causal relationship could be established between the trauma sustained of the left shoulder and the sudden rupture of the arteriosclerotic aortic aneurism.” Dr. Moore’s response was: “This file, including the transcript of the recent hearing, has been reviewed. The principle new evidence submitted would appear to consist of increased emphasis placed upon testimony that the patient was kicked in the side and abdomen and upon the complaints made with reference to the side and abdomen. “If the patient was so knocked down and kicked in the side and abdomen, there are no reported clinical findings or subsequent pathology findings which would indicate that the aneurysm of the abdominal aorta was affected by such acts. Had the rupture of the aneurysm and death of the patient occurred within the same space of time following the gunshot as actually did occur following the onset of the acute and fatal attack of 2-10-50, a conclusion that such was precipitated by trauma would be justified. “In view of the fact, however, that there was an eight day lapse between the accident and the onset of the acute symptoms of the ruptured aneurysm and death, it would appear that such a conclusion would not be justified.” The cause of death of a human being, when not patently discernible by a layman, must be left exclusively to medical experts. In the instant case Dr. Stewart, before the autopsy, did not know the cause of death since it was not discernible from an exterior examination of the body. The cause of death could only be, and was, demonstrated by the autopsy findings. When confronted with the autopsy findings, Dr. Stewart says that the kicks in the abdomen “could have produced” a small rent in the aneurysm and that the excitement attending the shooting undoubtedly produced undue tension which “might make the thing rupture”-—-“could have caused a small leak” and that the kicking “could 'have been a factor”. It was the opinion of the autopsy surgeons that the rupture and fatal hemorrhage was an immediate thing and had it been traumatically induced it would have immediately caused a gross hemorrhage from which the man would have died in a very short time. In any event, the official determination of cause of death had to be found by a lay body which of necessity had to rely upon the opinions of experts. Under these circumstances we believe that the principles announced in the case of Ison v. Western Vegetable Distributors, 48 Ariz. 104, 59 P.2d 649, 653, are clearly applicable and determinative of a correct disposition of the instant case. In the Ison case the applicant-employee suffered a blow on the chest on April 9th; was admitted to the hospital on April 28th, at which time it was discovered that he was suffering from a lung abscess. One doctor was of the opinion that the abscess had been induced by the blow. Another expert ascribed the abscess to a pneumonia condition. He was of the opinion that pneumonia, following a severe contusion to the chest, is possible but quite rare and in any event would supervene within three or four days. With these contrary opinions before the commission, it concluded that the illness had been occasioned by the pneumonia rather than the blow. On review this court observed that it is fixed law in this jurisdiction that the petitioner must establish his case by preponderance of the evidence. The court then defined ‘preponderance of the evidence’ in this situation as follows: “ * * *. Preponderance of the evidence means such evidence as when weighed with that opposed to it has more convincing force, and from which it results that a greater probability is in favor of the party upon whom the burden rests. It does not necessarily depend upon the number of witnesses; it merely means that the testimony which points to one conclusion appears to the trier of facts to be more credible than the testimony which points to the opposite one. The capacity of the submitted testimony to enforce belief on the arbiter to whom it is submitted is the touchstone of preponderance as applied to the testimony of witnesses. With this rule for our guidance, can we say affirmatively that the preponderance of the evidence as to the causal connection between the accident and the bronchial abscess is, as a matter of law, with the petitioner? Obviously, when two equally honest and experienced expert witnesses reach opposite conclusions, the only thing the trier of fact can do is to decide which one of these witnesses is more probably correct in his conclusion. In so doing, he may take into consideration the experience of the witnesses in diagnoses of ailments of the kind under consideration, and their interest or bias, conscious or unconscious, in the result to be reached. Applying these rules, we think it is clear to any fairminded layman that it cannot be said affirmatively that, as a matter of law, it was the dtity of the commission to accept the opinion of one medical witness over that of the other. (Emp. sup.) Such being the case, we are bound by the conclusion which it has reached as to which witness was more probably correct. It is urged that the testimony of one physician is positive that the injury caused the abscess, while the other merely states that it was extremely probable that it did not, and that the commission should, therefore, have accepted the positive testimony over that which was merely conjecture. There might be some merit in this contention if the point at issue was one which was subject to positive knowledge, such as the presence or absence of a certain person, a collision between two automobiles, or other similar matters; but the question is necessarily one of opinion and not of knowledge, and, when this is so, the fact that one opinion is expressed more positively than the other, does not, as a matter of law, require that a trier of fact give it more weight. We are compelled to hold, therefore, that the conclusion of the commission that it does not appear affirmatively that there was any causal connection between the accident of April 9th and the disability from which petitioner admittedly suffered must be upheld.” Where the determination of the cause of death must rest on expert medical testimony, the opinion of the experts based upon supporting facts and logical theories furnishes reasonable evidence to support an award found by the triers of the facts. Tashner v. Industrial Commission, 62 Ariz. 333, 157 P.2d 608; and Lewis v. Industrial Commission, 65 Ariz. 31, 173 P.2d 639. Since there is a conflict in the evidence of.the medical experts as to the causal relationship between the injuries sustained by deceased and his death some ten days later, this court is bound by the findings of the commission relating thereto and can only affirm the award. It is so ordered. UDALL, C. J., and PHELPS and DE CONCINI, JJ., concur.

MURRY, Superior Court Judge. This is an action by one partner, JoeDeSantis, plaintiff below and appellant herein, against the other partner, Bruce B. Dixon, defendant and appellee, for an accounting and dissolution of partnership, for temporary injunction, for appointment of receiver and for damages, to which the defendant answered and counterclaimed. For convenience we will refer to the parties as-they were designated in ‘the trial court. The case was tried to the court without a jury. During the trial all factual questions were settled by stipulation of the parties (which stipulation was approved by the court), except the question of title to cer tain real property and whether any rental liability was owed by the partnership to the defendant for the use of the said property. Plaintiff claimed the real estate was partnership property, while the defendant asserted that it was his separate property. Judgement was rendered against the plaintiff on the complaint and for the defendant on the counterclaim, quieting title in the defendant to the following described property: Lots Nine (9) and Twelve (12) in Block 256 of the City of Tucson, Pima County, Arizona. Also known as 137 S. 6th Avenue, Tucson, Arizona. Defendant was also awarded rent on said premises in the sum of eleven hundred dollars and costs. This appeal followed. The material facts briefly summarized are as follows: In 1942 an indefinite oral agreement of partnership was entered into between the plaintiff and defendant for the buying and selling of used cars, under the firm name of Dixon-DeSantis Motor Co. In the early summer of 1943 the location where the partners were doing business was sold and they were informed that they would not be able to renew their lease in the fall. The necessity of moving was the prime factor leading to the acquisition of the property in dispute. There is a sharp conflict in. the testimony concerning the negotiations for the purchase of the property in question, which will be discussed in detail later. The evidence as to the conduct of the parties and their method of bookkeeping as to the property after it was conveyed to the defendant is also conflicting. But the undisputed facts are that the two lots were purchased with the defendant’s funds for $24,500, $12,500 being paid in cash and a mortgage executed by the defendant for the balance. Title was taken in the name of the defendant only. In due course the business was moved to these lots and an option was granted by the defendant to the plaintiff, giving plaintiff the right to buy the entire property upon the death of the defendant, on the condition the defendant had not already sold it. Plaintiff makes the following four assignments of error: 1. The trial court erred in holding that the purchase by one partner, with his own funds, of a vacant piece of real estate for the use of the partnership did not bear such relation to the firm business to hold the purchasing partner a constructive trustee for the firm. 2. The trial court erred in finding the option agreement was almost conclusive evidence that on that date both parties conceded the defendant owned the lots in question. 3. The trial court erre'd in finding there was rent due the defendant from the firm. 4. The trial court erred in finding there was no evidence that the defendant’s capital account was credited with the cash payment made on the lots or that there was no evidence the down payment was.entered as having been paid by the partnership. We shall dispose of the last three assignments of error first, as they are concerned with the evidence in the case. The learned trial court, in referring to the option agreement stated: “ * * * it appears to. us to be almost conclusive evidence that on that date (date the option was signed by both parties) both parties conceded that the defendant owned the lots.” It is this statement the plaintiff has taken exception to in his second assignment of error. Plaintiff concedes that findings of fact by the lower court are most generally without the province of an appellate tribunal, but relies upon this exception to the rule. If the evidence on which the findings of the trial court are based is entirely documentary, the appellate court is not bound by the trial court’s findings but may make an independent decision on the factual questions. Daily Mines Co. v. Control Mines, Inc., 59 Ariz. 138, 124 P.2d 324. No quarrel is taken with the above principle of law, but does it apply in the instant case? We think not. The option agreement was considered by the court not as an instrument for the conveyance of real property nor as a waiver of an interest in real property, as it lacked the formal requirements of such an instrument, but only as another link in the chain of evidence in determining the status of the parties in relation to the title of the property. The trial court held not that the option was conclusive evidence as to the rights of the parties, but that it was almost conclusive between the partners that the defendant was then the owner. The trial court could well have reached this conclusion. We believe the trail court’s inference drawn from examining the document was reasonable and we must accept that inference. First Nat. Bank v. Osborne, 39 Ariz. 107, 4 P.2d 384; Kenton v. Wood, 56 Ariz. 325, 107 P.2d 380. The third assignment of error is concerned with whether the trial court erred in finding that rent was due the defendant from the firm. There is no conflict as to legal title being in the defendant, or that the land was used by the partnership for partnership purposes. There was evidence, upon which the trial court could reasonably base its judgment, that the partnership had agreed the firm would pay rent to the appellee for the use of the property. And where no findings of fact were requested of or made by the trial court, the supreme court must assume on appeal that every fact necessary to support its judgment was found. Estate of Brashear, 54 Ariz. 430, 96 P.2d 747; Grimm v. Beard, 63 Ariz. 281, 161 P.2d 924; Town of Wickenburg v. Sabin, 68 Ariz. 75, 200 P.2d 342. Therefore the decision on this point was legally correct. Considering plaintiff’s fourth assignment of error, let us ask another question. Does. the evidence show there was an oral agreement between the partners that the defendant should purchase the lots for and in the name of the partnership with partnership funds, and if so, does such an agreement come within the statute of frauds, or does it give rise to a constructive trust ? To answer this question it is not necessary for us to discuss and set forth in detail in this opinion the voluminous evidentiary facts upon which the trial court based its decision that there was no such agreement. In Glaspie v. Williams, 46 Ariz. 381, 51 P.2d 254, the court held: If there is reasonable and competent evidence to support the findings of fact of the trial court they will be sustained by this court. In First Nat. Bank v. Osborne, supra, the court held: If different inferences as to the ultimate facts may be drawn from evidentiary facts, we must accept the inference drawn by the trial court. It is sufficient to say that under the above cases there is, in our opinion, enough competent evidence to sustain the finding of the trial court, that there was not an oral agreement between the partners, that the defendant should purchase the lots in the name of the partnership with partnership funds. It is therefore unnecessary for us to consider the matter of the statute of frauds. Plaintiff’s first assignment of error poses a more difficult question. Does the purchase of a vacant lot by one member of a partnership, doing business as used car dealers, with his own funds, with full knowledge that the property on which the firm was doing business was no longer available for such purpose, make the purchasing partner a constructive trustee for the partnership? In other words does a constructive trust arise inherently out of the partnership relation? In answer to the above questions, among other cases, the plaintiff has cited us : Caveney v. Caveney, 234 Wis. 637, 291 N.W. 818; Dikis v. Likis, 187 Ala. 218, 65 So. 398. In the latter case, one of the partners leased a storehouse necessary for the firm business in his own name, there being no assent by his copartner to its being treated as an individual transaction. The court held that the storehouse was necessary for the partnership business, and that the one who purchased it held it in trust for the partnership. In the case of Caveney v. Caveney, supra, the court 'held that where a member of a partnership dealing in fuel, building material and agricultural machinery purchased gravel pits in his own name at a time when the partnership had ample funds with which to make such a purchase for itself, and sand and gravel from the pits were used and sold in the partnership business, the partner being paid the wholesale market price therefor, the purchases were in violation of the partnership obligations, and the partner held the property in trust for the partnership. It will be noted that the crucial tests applied in the above cases were: Is the prop erty necessary to the firm business?. Has the partnership obligation been violated? We agree with the trial court’s expressed view that the evidence in the instant case does not show any necessary relationship between the property and the business. The property was an unimproved lot in the city of Tucson. There is no evidence that there were not other lots -equally adaptable to the business of buying and selling used cars, nor is there any showing there were not other more desirable locations. We think the trial court was correct in ruling that a vacant building lot which is adaptable to many uses does not bear a peculiar and immediate relationship to the firm business of buying and selling used cars. Nor was any violation of the partnership obligation shown in the instant case. The duty of one partner to another is well stated in 47 C.J. 771-772, 68 C.J.S., Partnership, § 76: “The relation of partnership is fiduciary in character, and imposes upon the members of the firm the obligation of the utmost good faith in their dealings with one another with respect to partnership affairs, of acting for the common benefit of all the partners in all transactions relating to the firm business, and of refraining from taking any advantage of one another by the slightest misrepresentation, concealment, threat or adverse pressure of any kind.” The lower court failed to find facts substantiating any breach of this duty and since it is the sole judge not only of the evidence but also of reasonable inferences to be drawn therefrom, we are bound thereby. First Nat. Bank v. Osborne, supra; Jackson v. Griffin, 39 Ariz. 183, 4 P.2d 900. Under the circumstances shown here a partner who buys a vacant lot is not a constructive trustee for the partnership merely by virtue of the partnership relation. Judgment affirmed. UDALL, C. J., and STANFORD, PHELPS and LA PRADE, JJ., concur. Note: Justice EVO DE CONCINI, being disqualified, the Honorable PORTER MURRY, Judge of the Superior Court of Greenlee County, was called to sit in his stead.

LA PRADE, Justice. This is an appeal from a judgment secured against the defendants below, in the sum of $5,000 for money loaned. Defendant appellants have challenged the sufficiency of the evidence to sustain the judgment. The factual situation out of which this controversy arose is as follows: Plaintiff claims and' testified that while negotiating with the defendants for the purchase of their auto court for the sum of $210,000, he was importuned by the defendants and did “advance” them $5,000 with which to keep certain mortgage payments current in order that “the property would be available if and when we got our contract agreed upon.” Defendants on the other hand contend that they had agreed to sell the premises to plaintiff and that the plaintiff had paid the $5,000 as earnest money on the purchase price. Plaintiff ad- - mitted that at the time he paid over the $5,000, he had already agreed to purchase the premises and that the terms had been agreed upon; and asserted that his only concern was to determine, with the aid and assistance of his lawyers at Salt Lake City, whether the property was subject to any governmental rent or tenancy controls. Specifically in this behalf the plaintiff testified as follows: “A. In my dealings with Mr. Fontana and Mr. Todaro in Mr. Choisser’s office it was said that I would clear this matter with my attorneys in Salt Lake City with respect to these priorities, and if the priorities were clear, then we would draw a contract for the purchase of this property, and if this were not cleared with them, that this five thousand dollars would be returned to me.” (Emphasis supplied.) Following preliminary negotiations and dickerings in the office of defendants’ attorney on June 28, 1947, the parties all repaired to the office of the Arizona Title Guarantee and Trust Company, where it was contemplated that the deal would be consummated by the execution of the necessary instruments. In the office of the title company an escrow officer by the name of Dumont was contacted. At that time and place plaintiff gave all of the information to the escrow officer covering terms and conditions of the sale which were to be contained in the-escrow instructions. In these escrow instructions it was provided that the purchase price was $210,000; cash handed the escrow officer, none; cash handed direct to the sellers as earnest money, $5,000; $10,000 payable on or before August .8,, 1947; $10,000, to be represented by personal note outside of escrow; assumption of two mortgages totaling $75,507.21; as-r sumption of note to Seaboard Finance Company, approximately $16,895.48 (furniture— note and mortgage) ; balance of $92,597.31 to be covered by agreement of sale payable at the rate of $1,000 per month. Provision was also made for payment of escrow fee, title fee, mortgage policy, deed, taxes, proration of street-paving liens, pro-ration of Water Users Association assessments, proration of fire insurance, provisions for interest, rents to be adjusted, bill of sale for personalty, and provision for possession on August 8, 1947. At the time plaintiff parted with his $5,000 check, he demanded a receipt from the defendants. This receipt was prepared by the escrow agent, signed by the defendants and delivered to plaintiff; retained by the plaintiff and produced by him at the trial. The receipt was entitled “Earnest Money Agreement” and acknowledged the receipt of $5,~ 000 as earnest money and part purchase price of the property, for the full purchase price of $210,000, payable as follows: ‘$ 5,000 by the above deposit, and $ 20,000 on or before August 8, 1947; $ 77,000 by mortgage to First Federal Savings & Loan Ass’n; :$ 16,895 by note to Seaboard Finance Company; and ’$ 91,105 by agreement of sale. $210,000 With reference to this receipt, plaintiff .-gave the following testimony: “A. * * * I accepted the receipt as “having been signed by them. “Q. As part of the transaction? A. As part of the transaction, yes.” At the trial, when asked to produce the check, plaintiff testified that he did not “have it with him. When asked why, he answered: “It just didn’t ever occur to me. I am not used to these things very much.” He testified that he had not seen the check since it was delivered and didn’t know “whether the check had been presented for payment to his bank, and did not know whether it had been paid, which testimony of course was patently untrue or he would not have brought the lawsuit. The transaction in the title company office occurred on Saturday afternoon, at which time the escrow officer told them that lie would type out the instructions, contract, etc., on the following Monday morning and mail them to Mr. Gardner at Salt Lake City. The title officer, Mr. N. L. Dumont, was called by plaintiff as his witness. Mr. Dumont testified that: “Mr. Gardner wanted a receipt for the five thousand dollars. I told him on behalf of the title company I couldn’t give him a receipt for the five thousand dollars in view of the fact that it was money passing direct”, and that at the request of Mr. Gardner he made out “this earnest money receipt”. Mr. Dumont also testified that he made the notation in the escrow instructions and in the receipt that the $5,000 had been paid direct to the sellers as earnest money and that no mention of a loan was made in his presence. Plaintiff testified that the defendant Fontana told him that they (sellers) were in arrears on the property and, “ * * * some money had to be forthcoming at once to be able to keep the property in their hands, so that if we proceeded to deal on it further and arrived at a contract which we were going to agree on— was agreed upon, that then the property would be available to deal upon, and— ‡ * * * * * “The nature of the obligation was some payments due on the property, and the money wasn’t available to pay them, and so if I would advance some money so that these payments could be kept up, * * * when we got our contract agreed upon, and at that time— * * * At that time I put up five thousand dollars so that these payments could be kept current.” (Emphasis supplied.) In reference to the receipt plaintiff testified as follows: “A This is a temporary receipt given me in the title company’s office, as a personal receipt for the money which I had given them, to be held until such time as a contract could be drawn after it had been cleared by my attorneys.” (Emphasis supplied.) On July 1st the title company wrote plaintiff that they had forwarded escrow instructions in triplicate and asking for his signature and the return of them. Receiving no response, on July 22d they again wrote and asked for the return of the executed instructions. Some time after this— the evidence does not disclose when—the title company received back'their original letter of July 22d, to which was appended in longhand the following remarks: "Dear Mr. Dodds, “I am sorry to be so tardy in answering this letter. However I have been away for some time and just returned day before yesterday. I am sorry also to have to inform you that my deal Vito Todaro, et al. has definitely and permanently been called off, because of circumstances beyond my control. I thank you people anyway for your help in the matter and we will be in a position to deal again sometime. “J. D. Gardner”. (Emphasis supplied.) On September 5th plaintiff wrote to defendant Todaro and suggested that in view of his “uncertainty of the status of the property under, government civilian authority regulations” that the parties should get: together on a lease basis. At the beginning" of the letter he stated: “My attorney, Mr. L. S. Richards, just informs me that he-has received a letter from Mr. Choisser,. advising for the first time that you have some question as to whether you should return the money which was deposited in an-ticipation of a deal-between us. I hope an. issue will not be made over the matter, and. have to suggest an idea which I think might: meet all of the circumstances.” (Emphasis supplied.) It will' be noted -that: right here he did not assert, claim or intimate that he had made a loan of money but acknowledged that “* * * the money * * * was deposited in anticipation of a deal between us.” Plaintiff’s only witness, other than himself and the title company officer, Dumont,, was a Mr. Ray Wilson who had previously-been employed by him in the management' of his various motor hotels. Mr. Wilson testified that he was present with all of. the. parties in the office of Mr. Choisser before they all went to the title office; that “ * * * Mr. Choisser proposed that Mr. Gardner give them an ‘advance deposit’ of five thousand dollars contingent on Mr. Gardner’s attorney accepting the proposed terms of the purchase” and that “ * * ** Mr. Gardner brought up in case his attorneys went over this and it wasn’t agreeable to them, that money was to be returned,” (emphasis supplied) and “Q. What part of the agreement was it Mr. 'Gardner’s- attorneys were to ratify? “A. That part we discussed in your office that day about the status of the veterans, whether if it was sold to Mr. Gardner, whether he would be liable at any time by the United States Government, to take it out of a motor court operation and into a veterans housing operation.” Other illuminating testimony given by the plaintiff is that during the sixty-day period of negotiations he had talked to the defendant Todaro on not to exceed two occasions and . that he had never seen or talked to the defendant Fontana until he met him in the office of Mr. Choisser immediately preceding the visit to the office of the title company. The sole question to be determined in this case is whether the evidence substantiates plaintiff's cause of action for money loaned. Appellees rely upon the proposition that it is the law in this jurisdiction that this court will review the facts in the light most favorable to the prevailing party, and if there is any reasonable evidence to support the judgment of the trial court the judgment will not be disturbed. We of course are acquainted with this rule and of the many holdings of this court that conflicts of evidence are within the sole province of the trier of facts for determination and that the trial court, sitting without a jury, is judge of the credibility of witnesses, the weight of the evidence, and reasonable inferences to be drawn therefrom. Rogers v. Greer, 70 Ariz. 264, 219 P.2d 760. For collection of cases, see 2 Arizona Digest, Appeal and Error. In our case of Owl Drug Co. v. Crandall, 52 Ariz. 322, 80 P.2d 952, 954, 120 A.L.R. 1521, this court recognized that it was the duty of this court to accept the jury's decision on a conflict of the evidence. In this respect the court said: "* * * We adhere to that rule but, where from the evidence it is clear that reasonable men can come to but one conclusion, we have never hesitated to set aside a jury's finding contrary to such conclusion. In this case we hold there is no evidence to support a verdict of negligence. * * *" A careful and close analysis of the plaintiff’s testimony shows that he nowhere testified directly to having made a loan. The sum and substance of his testimony is to the effect that he had orally agreed to purchase the property; that all of the terms and conditions had been agreed upon except one, namely, that he was to get the assurance of his attorneys that the property was not subject to any governmental rent or tenancy controls and that he had advanced them $5,000 with which to meet certain obligations involving the property. He specifically testified that if the rent restrictions were not cleared up that his $5,-000 was to be returned to him. These rent restrictions, if they existed, were the contingency necessitating the return of his deposit. The plain implication is that if the restrictions did not exist, then the $5,000 was to be applied on the purchase price. This is confirmed by his witness Wilson. His other witness, Dumont, testified that the $5,000 had been accepted as earnest money without any limitations. The only suggestion disclosed in the entire record that there was any loan of money is contained in the allegations of the complaint and the argument of counsel to the trial court. It must be remembered that the judgment under consideration is predicated solely on a complaint for money loaned. The cause of action is not for a rescission of the contract and was not tried on that theory, and did not seek the return of the $5,000 on this basis. The allegations of the complaint, plus counsel’s argument, cannot be used in lieu of testimony and fails to furnish any persuasive support for the theory that plaintiff loaned two strangers, one of whom he had talked with on only two occasions and the other one whom he had never seen, $5,000 without security of any kind. For all that the record discloses, the only knowledge plaintiff had of defendants was that they were owners of the court worth $210,000, against which there were two mortgage liens in excess of $75,-000 and a chattel mortgage on the furnishings of approximately $17,000, and according to his testimony the defendants had confided to him that they were in arrears in their payments due on the property and were in need of money to meet these arrears so as to enable them to retain the property. Plaintiff having failed to produce any direct testimony or any testimony from which an inference might be reasonably drawn to substantiate the theory of a loan,, we are compelled to hold that the judgment is wholly unsubstantiated by any competent evidence. Undoubtedly the trial' court was influenced by the fact that the defendants, some sixty days after the abandonment of the contract by plaintiff, were-able to and did sell the court for $210,0.00-but upon different terms. Counsel have also argued that it would be unfair and inequitable to allow defendants to retain the-money upon the theory that such retention, would constitute .an unjust enrichment. This argument has no place here because-such a suggestion would have to be predicated upon the theory of a contract and its-rescission. We are not here concerned with the rights of a purchaser in a contract for the sale and purchase of land where the right of rescission is claimed or the attempt is made to avoid a forfeiture-Plaintiff bases his right to recover the $5,-000 here involved and the judgment of the-trial court was based solely upon the-ground of a loan to defendants. As above pointed out, this claim is wholly unsupported by the plaintiff’s evidence though giving it and all reasonable inferences to be drawn therefrom full faith and credit. The judgment of the lower court is reversed and the cause remanded to the trial court with directions to enter judgment for the defendants. STANFORD, PHELPS and DE CONCINI, JJ., and DON T. UDALL, Superior Court Judge, concur. LEVI S. UDALL, C. J., being disqualified, the Honorable DON. T. UDALL, Judge of the Superior Court of Navajo County, was called to sit in his stead.

FAIRES, Superior Court Judge. This is an appeal from a summary judgment in favor of the defendant-appellee and against the plaintiff-appellant entered upon the motion of the former in an action to recover an alleged balance due the plaintiff on a verbal contract for the erection of buildings for the defendant by the plaintiff on a cost-plus basis. There is but one assignment of error with its subdivisions, to wit: “That the court erred in granting a summary judgment upon the motion of defendant, for the reason that many issues of fact were to be tried.” The complaint alleges that the plaintiff engaged to furnish material and perform the labor. Defendant agreed to pay for such material and labor, and in addition, agreed to pay to plaintiff an additional 15 per cent of the amount expended for material and labor as compensation for the superintendency and construction of said buildings; that building was commenced on February 4, 1946, and completed on May 26, 1947; that under the terms of the contract the defendant became indebted to plaintiff in the sum of $18,443.63; that plaintiff in payment thereon had received the sum of $11,634.10; and that defendant owed a balance to plaintiff of $6,814.53. The defendant in her answer generally denies the material allegations of plaintiff’s complaint but admits the terms of employment under the contract except that she agreed to pay only ten per cent of the' total amount expended for material and labor as compensation to plaintiff W. D. Northen. The answer further denies that plaintiff is entitled to maintain said action by reason of the fact that his license to contract expired June 30, 1946. The defendant moved for summary judgment in her favor pursuant to the provisions of sections 21-1210 to 1216, A.C.A. 1939, Rules Civ.Proc., Rule 56, upon the grounds that the plaintiff could not maintain the action because he was not a licensed contractor when the alleged cause of action arose and because, under the facts as stated in the pleadings and affidavits, performance of the contract was not completed by the plaintiff. Said motion was supported by the affidavit of defendant, substantially reiterating matters alleged in her answer, and the affidavit of Morgan G. Pratt, the Registrar of Contractors, stating that the license of plaintiff W. D. Northen as a contractor expired on June 30, 1946, and that no license had been issued to him thereafter. A counter-affidavit was filed by plaintiff reaffirming substan tially the allegations of his complaint, but admitting the expiration of his contractor’s license and his failure to apply for any renewal thereof. It may be fairly said that the record discloses, without dispute, from the pleadings and affidavits that plaintiff on or about February 4, 1946, entered into a verbal contract with the defendant for the erection of a building or buildings by the plaintiff for the defendant on a cost-plus basis; that at the time of the making of the contract the plaintiff was a duly licensed contractor, such license being issued to him by the Registrar of Contractors of the State of Arizona on June 25, 1945, and that it expired on June 30, 1946, and was not renewed and no application for its renewal was ever made by the plaintiff; that no contractor’s license was issued to the plaintiff subsequent to the expiration of said license, and the plaintiff was not and has not been a licensed contractor at any time since June 30, 1946; that the plaintiff commenced work under said contract in March or April, 1946, and continued such work intermittently until an undetermined date in 1947, March 22, according to the defendant, May 26, according to the plaintiff; that said contract did not provide in terms when payment should be made thereunder, or whether payment should be made as the work progressed or only upon final completion thereof; that the work covered iby the contract was never completed by the plaintiff but was taken over and completed by the defendant; that all money due plaintiff for work done by him under the contract up to and before June 30, 1946, was paid to him by the defendant on or before said date; that no money was or is due or owing the plaintiff from the defendant for any work done by the plaintiff under said contract at any time on or before June 30, 1946, or while plaintiff’s said contractor’s license was in effect. The defendant in her affidavit in support of her motion for summary judgment stated that plaintiff had been paid any and all sums due him under the contract for labor and materials furnished up to and including June 30, 1946, the date on which the contractor’s license of plaintiff expired. This statement was not denied by the plaintiff. The plaintiff in his affidavit makes the following statement: “That the defendant did not settle with the said W. D. Northen (plaintiff) after the 16th day of August, 1946.” (Emphasis supplied.) The plain implication arising from said statement is that defendant made payment to said date, indicating conclusively that plaintiff’s cause of action accrued subsequent to the date of expiration of plaintiff’s license, to wit, June 30, 1946. Since a motion for summary judgment is not a trial by affidavits in which the court can summarily try factual Issues, the initial question to be decided on such a motion is whether there is a genuine issue of fact, and not how such issue, if one exists, should be decided. , Motions for summary judgment should ibe entertained where the pleadingsj depositions, and admissions on file, together with, the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact, entitling the moving party to a judgment as a matter of law. Conversely, if an examination of the record discloses that there is a genuine issue as to any material fact, motion for summary judgment should be denied. Cress v. Switzer, 61 Ariz. 405, 150 P.2d 86; Manor v. Barry, 62 Ariz. 122, 154 P.2d 374; Lewis v. Palmer, 67 Ariz. 189, 193 P.2d 456. The pleadings and affidavits in this case show that the alleged cause of action, if any existed, accrued subsequent to the date on which plaintiff’s license expired; hence, the motion for summary judgment was entirely proper. This is true though there were minor conflicts on the facts involved which if resolved either way would not affect the determination of the issues. The appellant maintains that the trial court erred in granting the summary judgment upon the motion of the defendant for the reason that many issues were to be tried and enumerates several issues such as compensation to be paid, quantity and value of material and labor furnished, and a number of cases are cited in support of the general statement that a summary judgment will not be granted if there is an issue of fact to be tried. While this broad statement is often found in the decisions, the correct view is that a motion for summary judgment should not be granted where there is a genuine issue of any material fact. The determination of what constitutes a genuine issue as to any material fact is often difficult. It has been said that an issue is material if the facts alleged are such as to constitute a legal defense, Keehn v. Brady Transfer & Storage Co., 7 Cir., 159 F.2d 383, 170 A.L.R. 999, certiorari denied 331 U.S. 844, 67 S.Ct. 1535, 91 L.Ed. 1864, or, are of such nature as to affect the result of the action, McComb v. Southern Weighing & Inspection Bureau, 4 Cir., 170 F.2d 526. Thus, in the present case, although there were some issues and facts in dispute, such issues and facts were in no sense controlling and their resolution, one way or the other,'could not possibly affect the final result of the action. It follows that the motion, for a summary judgment was properly filed and entertained. We thus come to the final question, namely, whether the court was right or wrong in granting the motion for a summary judgment in this case. The answer to that question depends upon the interpretation and effect to be given section 67-814, A.C.A.1939, the material part .of which reads as follows: “No contractor as defined by sec. 3 (§ 67-803) of this act shall act as agent or bring or maintain any action in any court of the state for the collection of compensation for the performance of any act for which a license is required by this act without alleging and proving that such contractor was a duly licensed contractor at the time the alleged cause of action arose." (Emphasis supplied.) Although the wording of the statute is clear and explicit to the effect that a contractor may not maintain an action for compensation if such contractor did not have a contractor’s license at the time the cause of action accrued, plaintiff argues that the statute merely requires that the license exist at the time the contract is entered into. We cannot agree with this contention. The overwhelming weight of authority requires us to hold that under a statute such as ours a contractor whose license expires after the contract is executed but before an obligation arises under it cannot enforce such obligation. Without attempting to exhaust the authorities, we review some of the cases supporting the proposition that a contract founded upon an act for which a penalty is imposed by statute is void. See Duntley v. Kagarise, 10 Cal.App.2d 394, 52 P.2d 560, and cases cited therein. A case directly in point here is that of Stanson, Inc., v. McDonald, 147 Ohio St. 191, 70 N.E.2d 359, 362, 169 A.L.R. 760. In that case the plaintiff and defendant, both of whom were licensed real estate brokers entered into an agreement during the year 1940 covering a division of certain anticipated commissions to be realized on the making of some leases covering theater properties. The transaction continued through the remainder of 1940 and on December 31, 1940, the license of the plaintiff expired. Thereafter the deal was closed and the defendant collected the commissions. Plaintiff filed an action to recover his share thereof. In denying recovery to the plaintiff the court said: “Sections 6373-48, General Code, provides that no right of action shall accrue to any person for the collection of compensation for the performance of the acts mentioned in Section 6373-25, General Code, without alleging and proving that such person was duly licensed as a real estate broker or real estate salesman at the time the cause of action arose * * *. There is no warrant in law for holding that notwithstanding the provisions of Section 6373-47 and 6373-48, General Code, plaintiff may recover under the theory of money had and received. Where the General Assembly has said there is no right of action, courts are without authority to create one and thus defy the law of the state.” Plaintiff in his affidavit in resistance to the motion for summary judgment states that: “ * * * the Registrar for Contractors of the State of Arizona gave the said W. D. Northen permission to keep said construction after the expiration of his said license.” The record does not so show but even if true it could not help plaintiff, for chap ter 67, article 8 of the Arizona Code reveals the fact that no discretion is granted the Registrar of Contractors, and he is bound to a strict enforcement of the licensing provision. Section 67-801 provides that it shall be unlawful for a person “to engage in the business or act or offer to act in the capacity or purport to have the capacity of contractor” without having a license. Section 67-803 defines a contractor, which definition would certainly include plaintiff. Section 67-814 provides a penalty, including fine and imprisonment, for any person “who acts in the capacity of a contractor within the meaning of this act without a license”, in addition to which it provides that before recovery can be had by a contractor, it must be alleged and proved that he “was a duly licensed contractor at the time the alleged cause of action arose.” It will be noted that the sections quoted not only invalidate the contract of an unlicensed contractor but they also provide a penalty for a person who in any manner whatsoever attempts to act, or offers to act, in the capacity, or purport to have the capacity, of contractor. As was determined in Hunt v. Douglas Lumber Co., 41 Ariz. 276, 17 P.2d 815, 819, the act was considered as a regulatory measure designed for the protection of the public against unscrupulous and unqualified persons purporting to have the capacity, knowledge and qualifications of a contractor. The Hunt case involved a situation where the prime contractor did not have a license at the- time of entering into the building contract or at any time subsequent thereto. While the decision primarily pertains to-the question of a materialman’s lien, the. court held that a construction contract between a building owner and an unlicensed contractor is void and unenforceable. Quoting from that decision the court stated: “It is the general rule of law that where a statute expressly forbids a person from entering into a certain kind of contract until he performs some precedent act, and imposes a penalty upon such person for attempting to enter into the forbidden contract, the contract itself is absolutely void ab initio and the party penalized has no rights thereunder.” In Wise v. Radis, 74 Cal.App. 765, at page 775, 242 P. 90, appears this statement by the court: “No principle of law is better settled than that a party to an illegal contract or an illegal transaction cannot come into a court of law and ask it to carry out the illegal contract or to enforce rights arising out of the illegal transaction.” See also Moore v. Moore, 130 Cal. 110, 62 P. 294, 880 Am. St. Rep. 78. In Colbert v. Ashland Const. Co., 176 Va. 500, 11 S.E.2d 612, 617, the court exhaustively treats the general rule of law that a plaintiff cannot recover where his cause of action cannot be established without showing that he has broken the law, whatever his claim in justice may be upon the defendant. The closing paragraph of that opinion we quote: “Colbert * * * cannot recover, not because his claim is without merit, but because he has failed to do those things which the statute says that he must do. The benefit which the defendant has received is incidental and accidental. The law of contracts is not interested in helping him but in curbing the plaintiff; in this instance enacted to prevent fraud and for a public purpose.” That court quotes with approval from 17 C.J.S., Contracts, § 202, page 557: “Where a statute imposes a penalty on the doing of an act without either prohibiting it or expressly declaring it illegal or void, the generally announced rule is that an agreement founded on or for the doing of such penalized act is void. * * * ” The case of Citizens State Bank of Long Beach v. Gentry, 20 Cal.App.2d 415, 67 P.2d 364, 366, relied upon by plaintiff, does not support appellant’s cause since in that case, the license of the individual expired and was then taken out in the name of the corporation which continued the construction of the building and completed the contract, the court finding the corporation was the alter ego of the individual, stating: “In our opinion, where a manifestly unjust and inequitable result would follow a holding that plaintiff contractor was without capacity to sue on his contract, the individual plaintiff in whose name the license stood at the time the contract was made and the corporate entity organized by him in whose name the license stood at the time the cause of action accrued, should be considered as one.” In Cash v. Blackett, 87 Cal.App.2d 233, 196 P.2d 585, 588, we find this statement: “The Public policy involved here has been determined by the legislature; it is not a subject of debate in the courts.” Numerous cases cited in this opinion from that jurisdiction support the principle announced preventing recovery in an action on contract by an unlicensed contractor under the bar of the statute. It may be urged that the court should exercise its equitable discretion and permit the plaintiff recovery even in face of a specific prohibition in the statute on the ground that an unreasonable forfeiture would result. However, the statute requiring a contractor to possess a contractor’s license before he may recover for work done was designed for the protection of the public and must' not be defeated in order to accommodate one who has violated the provisions of the statute. Permitting an unlicensed contractor to recover on the ground that a loss would result to him otherwise would completely nullify the statute since every unlicensed contractor would sustain a loss or forfeiture unless he were allowed recovery. The remedy, if any, lies with the legislature. As the law stands, the court cannot countenance such a result. In weighing the statements contained in the affidavits and counter-affidavits above mentioned, the only reasonable conclusion to be drawn is that the plaintiff had been paid in full for all labor and material furnished up to and. including June 30, 1946, when his contractor’s license expired, and that his cause of action did not accrue until after said date. Having no license he could not recover, hence, the motion for summary judgment was properly granted by the trial court. Our conclusion renders it unnecessary to pass upon any of the other questions presented in this appeal. Judgment affirmed. UDALL, C. J., and PHELPS, DE CONCINI and LA PRADE, JJ., concur. STANFORD, J., having disqualified -himself, the Honorable C. C. FAIRES, Judge of the Superior Court of Gila County, was called to sit in his stead.

LA PRADE, Justice. This proceeding is by certiorari prosecuted at the instance of Elmer Huddleston, Petitioner, to review an 'amended award of the Industrial Commission of Arizona. It appears that the petitioner was employed by the respondent, Beulah Anderson, dba Anderson Boarding & Supply Company, as a dishwasher. On the 14th day of September, 1946, petitioner suffered injury by accident arising out of and in the course of his employment with the respondent employer. The first report of the attending physician shows that as a result of the accident, petitioner was in a state of shock and suffered internal injuries which produced blood in the urine. In addition to these injuries, he had five ribs fractured, comminuted fracture of the left clavicle, mulitiple abrasions and contusion of the left shoulder, arm and both legs. On October 18, 1946, petitioner was released from the hospital in Tucson and sent to Phoenix for “observation-supportive and tonic medication”. At the time of the accident and resulting injuries, petitioner was 69 years and 7 months of age. The report of the attending physician filed with the commission on November 1, 1946, contained a notation that normal recovery would be delayed “because of the age of the patient and he does not look robust”. The next medical report was filed December 30, 1946, and stated that the petitioner could not return to work and that there would be some permanent disability, and further “Patient is co-operating as much as he can. He develops colds and coughs much at night and has a generally hard time. Might be necessary to hospitalize him because of his general condition.” A medical report filed later, to-wit, February 10, 1947, was to the effect that the patient had not recovered, that he was unable to work and that his disability was total, and carried the following notation: “No new complications but just does not get well and has numerous complaints. I do not believe that he is able to work. Request a consultation board and request that some internist be on the board. * * * This is an old man 69 years old and he was quite severely injured and I do not believe that he is able to do anything but the lightest work.” In March, 1947, Huddleston was referred to a medical board which board reported that he had recovered from his injuries and that his condition had become stationary so far as the injuries were concerned, and that he had sustained a 25% generar physical functional disability attributable to. the injuries sustained. By way of comment, the report contained the following information: “In reviewing this case and considering the cause of disability, we are of the opinion that the principal factors are his age and the effect of chronic alcoholism; to a less extent his disability can be attributed to the injuries in the accident of September 14, 1946. * * * Further treatments or examinations for the above injuries are not indicated. Because of his age, poor general physical condition and history of chronic overindulgence of alcohol, he may require care and observation but this is in no way connected with the accident in question.” On May 7, 1947, the commission made its findings and an award granting petitioner compensation for total permanent disability. In addition to the jurisdictional facts, the commission found that his average -monthly wage was $276.00 a month, and fixed his compensation at $179.40, being 65% of his average monthly wage (sec. 56-956, A.C.A.1939). Respondent-employer seasonably filed an application for rehearing, challenging the findings: (1) that the average monthly wage was $276.00; (2) that the employee had sustained a total permanent disability. A rehearing was granted, at which time witnesses were sworn and evidence adduced. On August 11, 1947, the commission reaffirmed the jurisdictional findings, including the finding that his average monthly wage was $276.00, but modified the finding that he had suffered total permanent disability and found that he had sustained a permanent partial disability, compensable under section 56-957, subsection (c), A.C.A.1939, as an unscheduled injury, and further found that .applicant was entitled to compensation equal to 55% of the difference between his .average monthly wages before the accident And what he might be able to earn thereafter. He was instructed to endeavor to find employment and report his monthly .earnings to the commission. Thereafter, the commission paid him $151.80 per month, being an amount equal to 55% of his average monthly wage, with no earning power. Nearly two years went by without any report of earnings by petitioner, and it was discovered that he had done no work and had been hospitalized for conditions other than the result of his injuries. On November 30, 1949, an order to show cause was issued by the commission, directed to the petitioner, commanding him to appear and show cause, if any, why a final award should not be made and to establish his true loss of earning power resulting from the accident and attendant injuries. At the hearing upon this order to show cause, petitioner testified that he was totally unable to work, that he suffered from nervousness, the shakes, shooting pains in knees and shoulders and back of head, and that he could neither stand nor sit up for any length of time. A registered nurse by the name of Edith De Graw testified that she had had occasion to observe him for the previous two and one-half years -(date of this hearing January 20, 1950), and that petitioner always complained of pains in the head, shoulder and arm and of constant amnesia due to his pain. She further testified that in her judgment he was not able to do any work due to his general physical condition, limitation of motion of shoulder and loss of memory; that he was feeble and walked unsteadily. In her examination by the referee, the following questions and answers appear of record: “Q. Do you think some of his present condition might be attributable to senility rather than to any sequela of an accident wherein he injured his shoulder and head and ribs, or would they be overlapping? A. I don’t think you could separate the two, I couldn’t; I am not a doctor. “Q. Isn’t it common experience that a man of his years with this previous history who has had infection for many years would be in poorer physical condition than a young man who suffered the same accident? A. That is right, but I feel that you are questioning the case that his age might be a penalty. He was old when it happened and such a severe accident in my opinion couldn’t lengthen his life span or the senile changes, it would seem to me they would be hastened by such an accident.” Mrs. Margaret Miners, landlady of petitioner, testified that he had been living at her rooming house for approximately two years; that she had had occasion to observe him every day; that in her judgment he was not robust and was unable to do any work; that she had asked him one time to wash her dishes and discovered that he was not able to do it due to his nervousness; and that he coughed a great deal at night and during his waking hours was unable to sit still for any length of time. In addition to this testimony, Dr. Mc-Grath, a recognized neurologist and psychiatrist, testified that over a period of months he had treated petitioner and that he last examined him on February 1, 1950, the date of his giving the testimony being February 3, 1950. His testimony was to the effect that he found petitioner exceedingly tense and tremulous, exhibiting a marked startled reaction and some incoordination in his movements; that petitioner suffered a cerebral abnormality which he felt the prior consultants overlooked; that he considered him able to do some restricted forms of light work such as dishwashing on a part-time basis for perhaps half days. Further elaborating upon this aspect of the matter, he testified: “The disability of itself is rather a general nature at this time and is of such a kind as to render him likely to be unable to continue more than an hour or so, or perhaps four hours at the most without development of sufficient nervousness to make it impossible for him to do ordinary work. That is his threshold, I think, or tolerance for continuing work, even of a mechanical nature, that is probably restricted by his general nervous condition. I do find a restriction in the strength of his freeness of movement of his left upper extremity, and that should be taken into consideration when we define what type of light work. “Q. Does that man have any central involvement of his central nervous system. That is to say, of his brain, of his cerebrum, anything that might be a result of trauma? A. He has central nervous damage, its damage I have not determined.” This witness was asked to examine all of the medical reports and X-ray findings in the entire file. To support his conclusion that petitioner suffered a cerebral abnormality, he pointed to the fact that the report of Dr. Dixon, the first attending physician, under date of December 6, 1946, stated: “The patient sustained a concussion of the brain, multiple lacerations and abrasions, and remained in serious condition because of a brain injury.” The testimony of petitioner, the nurse, the landlady, and that of Dr. McGrath constituted all the testimony offered upon the hearing on the order to show cause. No attempt was made by the respondent-employer or the commission to offer any evidence to show that there had been any change in petitioner’s physical condition or earning capacity subsequent to the award of May 7, 1947, wherein it was determined that he should receive 55% of the difference between his average monthly wage at the time of the injury and what he was able to earn thereafter. The record definitely discloses that he had not been able to earn anything up until the date of this last hearing wherein it was determined that the applicant was entitled to permanent compensation in the sum of $45.54 per month. It was not spelled out in the award but was equivalent to saying that he had suffered a 30% loss in his earning power, meaning that his earning power was $193.20 per month. The difference between this latter sum and $276.00 is $82.80, representing the difference in earning power. 55% of this latter amount equals $45.54, being the award that was made and which is under challenge on this review. The commission, by its final award, recognizes that the petitioner has suffered some loss of earning power attributable to the injuries received in the accident. The duty of determining this loss of earning power rests upon the commission. Matlock v. Industrial Commission, 70 Ariz. 25, 215 P.2d 612. Any finding of fact in this behalf must be based upon evidence. Six companies, Inc. v. Ind. Com., 41 Ariz. 366, 18 P.2d 913. The showing made by the applicant on the order to show cause rather convincingly demonstrates that he was neither physically nor mentally capable of doing any remunerative work. No positive showing was made nor any facts developed from which it might be inferred that his failure to be engaged in some gainful occupation is not due to his partial disability, resulting from the injuries sustained. Nowhere in this record is it demonstrated, or reasonably inferable that petitioner can earn $193.20 per month. There being no evidence to sustain the findings and award which are in effect that petitioner has sustained only a 30% loss in earning capacity, the award must be set aside, and it is so ordered. UDALL, C. J., and STANFORD and DE CONCINI, JJ., concurring.

UDALL, Chief Justice. The basic issue for determination on this appeal is whether the trial court properly granted a motion to set aside a default judgment theretofore entered against defendant-appellee Nick Tapo. The procedural snarl which we are called upon to unravel in order to answer this question arose in the following manner: Plaintiff-appellant Eva Rogers purportedly suffered serious personal injuries when a neon sign fell on her while a business visitor in the restaurant of defendant Tapo. The sign had been originally furnished and installed in the restaurant by Arden Farms Co., an Arizona corporation, a co-defendant. Plaintiff filed her complaint for relief against these two defendants jointly, alleging negligence on their part and praying for $50,000 in damages. Personal service was had on each of the parties. The corporate defendant through its counsel timely answered denying liability, and the record before us does no.t disclose whether the case against Arden Farms Co. was ever brought to trial. In any event it is not a party to this appeal. Defendant Tapo filed no answer within the twenty days allowed under section 21-428, A.C.A.1939, Rules Civ.Proc. Rule 12(a). On the nineteenth day after the complaint had been filed, defendant’s counsel filed a motion for security for costs under section 21-601, A.C.A.1939, and paid the statutory appearance fee, section 34-110, A.C.A. 1939. There is a sharp dispute between counsel as to whether a copy of this latter motion was served on plaintiff’s attorney. On the twenty-first day after service of the summons and complaint, plaintiff, upon affidavit of counsel, had the clerk of court enter a default against defendant Tapo, under section 21-1205, A.C.A.1939, Rules Civ.Proc. Rule 55(a). Four days later, when the motion for security for costs was undoubtedly a part of the court file, plaintiff, without notice to defendant, applied ex parte to the court for judgment by default, section 21-1206, A.C.A.1939, Rules Civ.Proc. Rule 55(b). The court, after hearing evidence as to the amount of damages, ordered judgment by default to be entered against defendant Tapo in the sum of $25,000. The following day plaintiff caused a writ of execution to be issued and the sheriff levied upon all of the real property owned by defendant in Maricopa county. Thereafter (within two hours), defendant filed an affidavit and motion to set aside the entry of default and default judgment. The next day the court ordered a stay of execution in the matter until further order of court. Subsequently, and after a total of some 26 instruments, i.e., motions, pleadings, amended motions and pleadings, and unique documents of various descriptions had been filed, the court set aside the default judgment and quashed the writ of execution. From this order plaintiff appeals. Numerous subsidiary problems are here presented, but in the disposition of this case we need to consider only one question: Did the trial court abuse its discretion in setting aside the default judgment? The answer necessarily lies in our rules of civil procedure, hereinafter enumerated and discussed. See Federal Rules of Civil Procedure, 28 U.S.C.A., from which our rules are taken. Plaintiff contends that the trial court erred in setting aside the default judgment because defendant’s motion and affidavit to set aside same did not show mistake, inadvertence, or excusable neglect as provided by section 21-1502, A.C.A. 1939, Rules Civ.Proc. Rule 60(b). With the latter part of plaintiff’s contention we are in agreement, and if defendant had to rely upon the inadequate showing of excusable neglect made in his motion and affidavit, the trial court could not properly have set the judgment aside. This court has stated on many occasions that in order for a default to be set aside the party in default must show: (1) that his failure to answer within the time required by law was excusable neglect, and (2) that he had a meritorious defense. See Swisshelm Gold Silver Co. v. Farwell, 59 Ariz. 162, 124 P.2d 544, and cases cited therein. This ruling is in harmony with the federal court decisions interpreting Rule 60(b) of the Federal Rules of Civil Procedure, supra. As to excusable neglect the only showing made by defendant was contained in his motion and affidavit filed by counsel, which contains no facts but only a legal conclusion, as follows: “* * * that if there was any neglect whatsoever on the part of the said defendant, Nick Tapo, or his counsel in this matter, it was through inadvertence and was excusable.” It would constitute an abuse of discretion for a court to set aside a default judgment upon an ineffectual showing such as this, for, as a matter of law, this is no showing at all. See, e.g., Bowles v. Branick, 66 F.Supp. 557; United States v. Knox, D.C., 79 F.Supp. 714; Swisshelm Gold Silver Co. v. Farwell, supra, and cf. Henry v. Metropolitan Life Ins. Co., D.C., 3 F.R.D. 142; Brown v. Beck, 64 Ariz. 299, 169 P.2d 855. Defendant contends, however, that since he appeared in the action, plaintiff should have served him with notice of application to take judgment at least three days prior to the hearing on such application, and further asserts that if such notice is not given, the judgment so obtained should be set aside. This contention has merit, for defendant could properly claim surprise under section 21-1502, Rule 60(b), supra. Under section 21-1205, Rule 55 (a), supra, an entry of default may be entered against a party who “has failed to plead or otherwise defend”. In the instant case, defendant, within the twenty days allowed, failed to plead or otherwise defend as required. The motion for security for costs filed was insufficient to prevent the entry of default. A motion is not a pleading. It is defined as “An application to the court for an order”, secs. 21-401, 21-402, A.C.A.1939, Rules Civ.Proc. Rules. 7(a) and 7(b) ; 1 Moore’s Fed.Pr. (2d ed.) sec. 7.05. Likewise, this motion is not a. defense to an action, Huff v. Flynn, 48 Ariz. 175, 60 P.2d 931; Wheeler v. Lientz, D.C., 25 F.Supp. 939. Neither can it be-used as a subterfuge to extend the time within which to answer or otherwise defend. See sec. 21-428, A.C.A.1939, Rules Civ.Proc. Rule 12(a); sec. 21-601, supra. Thus, the entry of default made upon affidavit of counsel for defendant was properly entered by the clerk of court. The judgment by default, however, should not have been granted without notice to defendant. Section 21-1206, Rule 55(b), supra, which governs the entry of default judgments, reads in so far as applicable: “Judgment by default may be entered as follows: In all cases the party entitled to a judgment by default shall apply to the court therefor * * *. If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three (3) days prior to the hearing of such application. * * *” (Emphasis supplied.) Rule 55(b), supra. In the instant case, although the motion for security for costs did not constitute a pleading or a defense to the action, the filing of such motion and the payment of the statutory appearance fee under section 34—110, .supra, did constitute an appearance. An .appearance does not prevent a party from 'being in default for failure to plead or otherwise defend, 3 Moore’s Fed.Pr., sec. .55.01, but in order for a plaintiff to secure a default judgment against a defendant it is incumbent upon plaintiff to give the three day written notice of application for judgment required under section 21-1206, Rule 55(b), supra. See Hoffman v. New Jersey Federation, etc., 3 Cir., 106 F.2d 204; Commercial Casualty Ins. Co. v. White Line T. & S. Co., 8 Cir., 114 F.2d 946. In Montgomery’s Manual of Federal Jurisdiction and Procedure' (4th ed.), sec. .287, it is stated: “If the defendant has mot appeared, a default may be entered hereunder. (Rule 55(b)(2)). If he has appeared, a default judgment may be obtained only by application to the court; and his opponent must cause him to ‘be served with written notice of the application for judgment at least three days prior to the hearing on such application.’ If judgment has been entered without notice, .a reversal must be ordered. (Emphasis supplied.) And see 3 Moore’s Fed.Pr., sec. .55.02. It should be noted, however, that failure to give such notice is not jurisdictional, United States ex rel. Knupfer v. Watkins, 2 Cir., 159 F.2d 675; United States v. Borchers, 2 Cir., 163 F.2d 347, hence if application is not timely made to set it aside, the judgment becomes res judicata as any judgment entered on the merits. 3 Moore’s Fed.Pr., sec. 55.02. We hold that defendant, having made his appearance, was entitled to the three day notice under section 21-1206, Rule 55(b), supra. Such notice not having been given, the judgment was properly set aside. Setting aside a default judgment is within the sound legal discretion of the trial court under section 21-1207, A.C.A. 1939, Rules Civ.Proc., Rule 55(c). In Rawlins v. Wilson, 66 Ariz. 267, 187 P.2d 322, we pointed out that a party should be given a reasonable opportunity to litigate his claim or defense on the merits; that any doubt which may exist as to whether a default should be set aside should be resolved in favor of the application, to the end that a trial upon the merits may be had. In the instant case not only did the trial court properly exercise its discretion, but it would have been an abuse of discretion not to have set aside such judgment. Order affirmed. STANFORD, PHELPS, DE CONCINI and LA PRADE, JJT., concur.

THOMAS, Superior Court Judge. Plaintiffs W. H. Weast and Gertrude F. Weast, husband and wife, filed an equitable action to quiet title to certain lands, hereinafter described, joining as defendants Roland Cummings and Marjorie Cummings, his wife. The husband defaulted but the wife appeared and answered. A trial to the court, sitting without a jury, resulted in a judgment for plaintiffs. After denial of her motion for a new trial, Marjorie Cummings alone has appealed. ' She will be hereafter, referred to as defendant and the appellees designated as plaintiffs. To determine the legal questions raised by this appeal will involve a consideration of principles of community property and partnership law pertinent to resolving the facts shown by this record. This rather involved factual situation may be generally summarized as follows: The state land department in the year 1932 issued a certificate of purchase to the land involved in this, suit to one Daniel Rentchler. The certificate covered land in Pinal county, more particularly described as Sec. 4, Twp. 4 S., R. 9 E. of the G. & S.R.B. & M. Plaintiffs and . others, under the laws of Arizona, had formed two corporations known as Magma Ranches, Inc., and Arizona Ranches, Inc., for the purpose of acquiring land and developing same for farming. While the ownership of stock in the two corporations was not entirely identi cal, to all intents and purposes'they were both owned and controlled by plaintiffs. Rentchler in 1940 assigned his certificate of purchase to Magma Ranches, and it subsequently assigned same to Arizona Ranches. Both of these assignments were in due course filed with and approved by the state land department. Secs. 11-416, A.C.A. 1939, and 11-426, Cum. Pocket Supp. A.C.A.1939. Thereafter these two corporations were dissolved and their assets distributed. As will more fully appear hereafter the evidence shows that during the period 1941-1943, and prior to the dissolution of the corporations, Roland Cummings loaned to plaintiff W. H. Weast sums aggregating $8,500. Some time later—without filing with the land department—Arizona Ranches executed and delivered two separate deeds to the land in question to Rol- and Cummings as grantee, purportedly conveying in all an undivided 50% interest thereto. There is a dispute between the parties as to whether these deeds were outright conveyances or were in truth and in fact mortgages given by way of security for the debt. In April 1944 Roland Cummings and plaintiffs entered into a formal partnership agreement. Shortly thereafter Arizona Ranches, with the approval of the land department, assigned the certificate of purchase to section four to the individual members of the partnership. The venture proved unprofitable, and in September, 1947 the three partners entered into a formal agreement dissolving the partnership. The interest of each of the partners and of defendant under this agreement of dissolution will be more particularly discussed hereafter. Before the termination of the partnership, marital troubles developed between Roland Cummings and his wife, the defendant, culminating in an interlocutory decree of divorce being entered by the superior court of Los Angeles county, California, wherein Marjorie Cummings, was decreed to have an undivided one-half interest in the partnership rights owned by Roland Cummings and a 25% interest in section four. Pursuant to such decree the latter was. directed to execute to defendant a deed of conveyance for such interest in section four. Such deed was executed without the approval of the land department. Both this deed and a copy of the California decree were recorded in Pinal county. Thereafter Roland Cummings, in accordance with the agreement to dissolve the partnership and with the consent of the land department, assigned the interest in the certificate of purchase standing in his 'name to section four to plaintiffs. Whereupon the department in December 1947 issued to plaintiffs a patent to the land in question. This action was then commenced to quiet title to said premises with the result heretofore stated. Plaintiffs, as heretofore pointed out, were stockholders in both corporations. W. H. Weast in addition thereto was secretary of both, actively taking part in the affairs thereof. His wife, Gertrude, was also president of Arizona Ranches. In December of 1941 W. H. Weast, acting for the corporate benefit, borrowed from Roland Cummings the sum of $5000. Subsequently, an additional sum of $3,500 was borrowed from Cummings, all of which was unsecured. It is conceded that this total sum of $8,500 was the community property of Roland Cummings and defendant. About two years later Arizona Ranches executed and delivered to Cummings a warranty deed to an undivided 32i/¿% interest in section four. Six months later a second warranty deed to an undivided 17V$% inter 1est was executed and delivered by the corporation to- Cummings. Neither of these deeds was submitted to nor approved by the state land commissioner. Thereafter plaintiffs and Cummings entered into a written partnership agreement, the terms of which provided for the ownership, development and operation of section four, and said section was to constitute the original capital of the partnership. The agreement provided that Cummings was to own a 50% interest in the partnership and each of the Weasts, 25%. Defendant was not made a party to this agreement. Shortly following the making of the partnership agreement, the corporation assigned, with the consent of the land commissioner, to “Roland Cummings, a married man, and W. H. & Gertrude F. Weast, husband and wife, as joint tenants * * the certificate of purchase to section four. Some three years later Roland Cummings executed and delivered a warranty deed, purportedly conveying to W. H. and Gertrude Weast his interest in section four. Defendant, his wife, did not join in this deed, nor was it submitted to or approved by the land commissioner. Defendant contends that the two deeds from Arizona Ranches to Cummings, purportedly conveying to her husband an undivided 50% interest in section four, were absolute deeds of conveyance given in satisfaction of the pre-existing $8,500 indebtedness. Since it is conceded that the $8,500 was community property, defendant contends that these two deeds conveyed to her an undivided 25% interest in section four, and that the deed subsequently executed and delivered by Cummings to plaintiffs was invalid because not joined in by her. Sec. 71-409, A.C.A.1939. On the other hand plaintiffs contend (1) that the uncontradicted evidence shows that the deeds to Cummings were not absolute deeds of conveyance but were given by way of security for the loans, and (2) that the deeds did not operate to transfer title to the land because (a) they were not in the form required by statute for assignments of certificate of purchase and were not consented to by the state land commissioner, and (b) they could not convey title to the land because legal title was still vested in the state. The trial court agreed with defendant’s contention that the two deeds were absolute deeds of conveyance given in satisfaction of the loans. This finding by the trial court is cross-assigned as error by plaintiffs whose theory in the court below, as well as here, was that the two deeds to Cummings were in effect mortgages given by way of security, and were not absolute deeds of conveyance. We believe the lower court erred in finding that these deeds were absolute conveyances. The only testimony in the case, although given by an interested party, shows that they were given as security for the loans. There was nothing in the evidence to indicate that this was false, but this testimony was actually corroborated by other facts. Thus, two deeds purportedly conveying 10% interest each were made to two other parties at different times, neither of which were consented to by the land commissioner. When an assignment of the certificate of purchase was properly made, with land department approval, from Arizona Ranches to Cummings and plaintiffs, the interests of the parties under the partnership agreement showed that Cummings’ interest was to be 50%, and each of the plaintiffs was to. receive a 25% interest, and neither of the plaintiffs had had any individual interest in the land theretofore. Disregarded were the two outstanding deeds of ten per-cent interest. These interests were later transferred to plaintiffs, and no notice of them was ever given to the state land department. We hold that since the evidence of the parties who made the instruments showed that the deeds were given as security and that this evidence, uncontradicted by any evidence adduced by defendant, is corroborated by the making of other similar deeds about the same time, apparently for the same purpose, the trial court was in error in holding that the deeds were absolute conveyances. The assignment of the certificate of purchase, made in compliance with the law, after the partnership agreement was executed, legally constituted a valid assignment and carried the partnership agreement into effect, discharged the indebtedness to Roland Cummings and changed the relationship of debtor and creditor theretofore existing to one of partnership. There was no violation of community property law in this transaction, because what Roland Cummings put into the partnership was not an interest in realty, (which would have required a joinder by his wife, the defendant,) but the $8,500, which was personalty, and he, as manager of the community, had the right to invest such sum in the partnership without his wife's consent. La Tourette v. La Tourette, 15 Ariz. 200, 137 P. 426; Coe v. Winchester, 43 Ariz. 500, 33 P.2d 286; Morgan v. Firestone Tire & Rubber Co., 68 Idaho 506, 201 P.2d 976. Considered as a whole, the facts in the instant case present the not uncommon phenomenon of a person investing money with hopes of gain and with the not unusual result of having those hopes unfulfilled. As often happens, the investor herein, following initial failure, sought to protect his investment by numerous additional acts which complicated the legal effect of the entire transaction. The record fairly shows that the investor ultimately decided that future time and effort could be more profitably spent if this particular venture were written off, even at considerable loss. Following this decision Cummings and plaintiffs entered into a formal agreement dissolving the partnership, by means of which plaintiffs obtained the right to the whole of section four, which constituted, substantially speaking, the entire assets of the partnership, in return for the payment to Roland Cummings and defendant of $1,000 each. To forestall any legal problems as to title arising, the agreement provided that the total of $2,000 would be paid upon the delivery to plaintiffs of good and sufficient quitclaim deeds to the property by both Roland and Marjorie Cummings. The agreement was in all respects in accord with the articles of partnership, and the evidence shows that the primary purpose of the same was to enable plaintiffs to refinance or sell the property involved and prevent foreclosure bn all partnership assets. Roland Cummings subsequently executed and delivered his quitclaim deed to plaintiffs. Marjorie Cummings, defendant, refused upon demand to deliver a good and sufficient quitclaim deed, and has ever since refused to do so. Since defendant continued to refuse to execute and deliver a quitclaim deed upon demand, plaintiffs instituted this suit to quiet title to section four. In accordance with the agreement of dissolution, Roland Cummings assigned his interest in the certificate of purchase from the state land department to plaintiffs. This transaction was approved by the land commissioner. On December 29, 1947, the state land department issued a patent to section four to plaintiffs. It appears that both of these later transactions were taken without notice being given to defendant Marjorie Cummings, without her joinder in said assignment, and presumably without her consent to the issuance of the patent. With the equities of the parties being as hereinbefore set forth, the instant case becomes susceptible to obvious ' decision. When community personal property is invested in a partnership, it retains, as between the spouses involved, its character as community property, but is subject to the primary powers and duties governing the partnership itself, which includes the proper acts of partners inter sese. Coe v. Winchester, supra. Such community property is subject to the primary charge of any liabilities to which the partnership may be subjected, however, and the power of the partnership and its members over the assets, either wholly or in part made up of community property, predominates over any rights which the members of the community may have in regard to the same. Community rights and powers can only become the prevailing consideration in such a case after all partnership obligations and powers have been fully discharged and satisfied. 1 de Funiak, Principles of Community Property, secs. 80 and 172. The partnership agreement provided for a settlement between themselves in the event one partner desired to terminate the relationship, and a sale by the partner desiring to terminate the relationship to the partner desiring to continue the business. This duty to sell extended to and included all of the assets of said partnership. The record shows that plaintiffs, to prevent the loss incident to a threatened, foreclosure of all assets, agreed, in accordance with the powers and duties set forth in the partnership agreement with Roland Cummings to acquire all of the assets from him, and in return therefor, to pay to Cummings their net value. We hold therefore that the community interest of a spouse in a partnership such as this and its assets is subordinate to the power of the partners under the agreement of partnership, to adjust the equities existing between themselves in pursuance of a termination of the enterprise. 1 de Funiak, supra. The acts of Roland Cummings and plaintiffs by means of which the partnership relationship was finally determined, were for this reason completely proper. Defendant in the court below alleged fraud on the part of Roland Cummings, but a close analysis of all of the facts involved in this transaction supports the conclusion of the trial court that the acts of Roland Cummings herein in all respects satisfied the general requirement that they be for the benefit of the community and not in fraud of the rights of the wife. For these reasons we confirm their propriety and hold the wife bound thereby. Greer v. Goesling, 54 Ariz. 488, 97 P.2d 218. The purported interest of defendant under the circumstances constituted a cloud on the title of plaintiffs. There was no equitable justification for the same, and plaintiffs were properly entitled to judgment quieting their title as against defendant. Other questions raised on' this appeal have been carefully considered by this court. We deem it unnecessary to discuss them in detail however, for even if they were resolved in favor of the defendant herein, they would not affect the required result. Since there is no substantive basis for complaint, their consideration in this opinion is omitted. Judgment Affirmed. UDALL, C. J., and STANFORD, DE CONCINI and LA PRADE, JJ., concurring. Note: Justice M. T. PHELPS, being disqualified, the Honorable FRANK E. THOMAS, Judge of the Superior Court of Cochise County, was called to sit in his stead.

LA PRADE, Justice. This is an appeal hy the defendant, Max Alter Eisenstein, from a judgment of the Superior Court of Maricopa County, convicting him of murder in the first degree and sentencing him to life imprisonment, and from the order overruling his motion for a new trial. No challenge is made to the sufficiency of the evidence to justify the verdict and judgment. All of the grounds of appeal, being eleven in number, relate to assigned procedural defects that are claimed to have been so prejudicial as to have deprived defendant of a fair trial. Ground of Appeal No. 1 Over objection of defendant, the deputy county attorney, Mr. Joseph Walton, in charge of the prosecution, was permitted-to withdraw from a long hypothetical question put to the state’s psychiatrist, Dr. Bruce D. Hart, the following assumption: “Assuming that during this period he was * * * capable of committing an impulsive act of violence without realizing the nature of that act.” Dr. Hart was of the opinion that the defendant was legally sane at the time the evidence showed he killed his wife. For the doctor to have assumed it to be true that at the time of the killing the defendant was capable of committing an impulsive act of violence without realizing the nature of that act would have required an answer to the effect that the defendant was insane. The assumption was erroneous in that it assumed the very fact in issue. It is the position of appellant that the hypothetical question, as finally put, failed to incorporate essential evidence and assumed a situation contrary to the evidence. Other expert and lay witnesses 'had given testimony to the effect that at the time of the killing in question and on two other occasions (1941 and 1945) when the defendant had had severe mental disturbances he was capable of committing impulsive acts of violence, without realizing the nature and consequences of the acts. It is the contention of appellant that this, evidence should have been incorporated in the hypothetical question. This testimony in its very nature was opinion evidence. The opinion of an expert cannot be predicated on the opinion of another expert. 20 Am. Jur., Evidence, sec. 791; Mount Royal Cab Co. v. Dolan, 168 Md. 633, 179 A. 54, 98 A.L.R. 1106; Christiansen v. Hollings, 44 Cal.App.2d 332, 112 P.2d 723, at page 730. In this respect, the question, as originally-put, was erroneous and, as finally put omitting this erroneous assumption, was correct.' The foregoing assignment is without merit. Ground of Appeal No. 2 It is claimed that the court erred in permitting, over objection of counsel for the defendant, the prosecutor to put the following questions to, and elicit the following answers from the state’s psychiatrist, William B. McGrath, M.D.: “Mr. Walton: Q. Assuming the truth of the testimony of Dr. Bendheim here in the courtroom concerning the past medical record and history of the defendant, that is, the testimony which you have heard and remember, and on the basis of that testimony as true and on the basis of your examination and your observation, have you arrived at an opinion regarding the defendant’s sanity or lack of sanity on the 13th day of December, 1949, and by that I mean whether he knew the nature and quality of the alleged act and whether he knew right from wrong? “Mr. Laney: Just a moment, object to that, may it please the court, on the same grounds and for the reason it would assume that the witness remembered everything that Dr. Bendheim stated and all the data on which Dr. Bendheim depended and he must put in a hypothetical question those matters just as I was compelled to do. “The Court: Were you present during the testimony of Dr. Bendheim? A Yes, sir. “The Court: Throughout the testimony of Dr. Bendheim? A Yes, sir.” It is appellant’s position that it was an abuse of discretion to permit the expert witness to assume the truth of a portion of another witness’ testimony by merely characterizing that portion of the testimony of the other witness “concerning the past record and medical history of the defendant, that is the testimony which you have heard and remember.’ (Emphasis supplied.) It is argued that it was not made plain what particular portions of the prior witness’ testimony were assumed to be true and not made plain what portions thereof the expert witness “heard and remembers”. An expert may give his opinion based on both the evidence, as stated in the hypothetical question, and upon his personal examination of the accused. State v. Gevrez, 61 Ariz. 296, 148 P.2d 829. This case points out that where an expert has heard the testimony bearing on the mental condition of the accused he may be permitted, under certain circumstances, to give his opinion based on the evidence as heard by him, assuming it to be true, but that the putting of a hypothetical question, setting out the facts as assumed, is the better and customary practice. This procedural error was not of sufficient consequence to be deemed prejudicial. Especially is this true, in view of the extended cross-examination of this witness, wherein he was repeatedly asked if he had given full consideration to much conduct and many enumerated acts of the defendant which showed a deviation from normal. There is no merit to the assignment under consideration. Ground of Appeal No. 3 The third assignment of error challenges the ruling of the trial court in refusing to permit a lay witness to state his opinion as to the sanity of the accused. This particular witness, Mr. Clark, had owned and operated a private sanitarium in Phoenix, specializing in the care and treatment of mental cases designated by the witness as for the “acutely insane”. It was at his institution, in 1941, that Mr. Eisenstein was under the care of Dr. Kingsley, a well-known psychiatrist. Mr. Clark testified that he and his wife, a registered nurse, under the direction of physicians, had treated and cared for more than 1,000 mentally defective patients. The question, to which an .objection was sustained, reads as follows: “Q Now, will you describe to the jury what you had to do with this insane man in giving those treatments ?” The objection to the question was upon the ground that it referred to the defendant as an “insane man”. Counsel for defendant then put this question: “Q Was he insane?” Objection was made upon the ground the witness was not qualified to answer and the obj ection was sustained. It is the rule that laymen, regardless of whether they have acquired any skill with relation to insanity, may, upon stating their observations of a given person, testify whether, in their opinion, that person was insane. Non-expert witnesses may express opinions as to sanity or insanity only after they have testified to acts, conversations and conduct of the person whose sanity is in question, which to some extent indicates sanity or lack of sanity and upon which they base their opinions. Such a witness must testify from personal knowledge and observation and not from reputation. 20 Am.Jur. Evidence, sec. 852. Technically, the witness should have been allowed to answer the question. No prejudicial error resulted in view of the fact that the witness had previously testified that he operated his hospital for the “acutely insane”, and that under the' direction of Dr. Kingsley he treated Mr. Eisenstein for “acute insanity”. Ground of Appeal No. 4 Appellant submits that the court erred in sustaining the objections of the county attorney to questions put to the defendant’s witness, Mary Jane Johnson, concerning statements made to her by the deceased Mrs. ' Eisenstein on the night before her death when she was a visitor at the home of Mrs. Johnson. Mrs. Johnson testified that Mrs. Eisenstein visited at her home on the evening before the tragedy, from about 8:00 p. m. until about midnight. Questions were then put to the witness for the avowed purpose of showing that Mrs. Eisenstein had stated that the meeting next morning was for the purpose of talking about a.reconciliation with her husband at which time she was going to insist as a condition of reconciliation that defendant deed back to her the business property on East Van Burén Street. Objection was made on the ground that it was hearsay. Objection was sustained and the witness- was permitted only to testify that Mrs. Eisenstein had stated that she was to have an appointment the next morning with her husband. The witness was recalled later and counsel for defendant again asked her to “state what further, if anything, she (Mrs. Eisenstein) said as to her plans the next morning”. Following further objection by the county attorney, the court said: “The only 'thing the Court permitted was the act of meeting. I feel it is hearsay and sustain the objection.” As a proposition of law supporting this ground of appeal and assignment of error, appellant makes the following statement: “A person’s plan and intention to do a particular act in the near future may be evidenced, under an exception to the hearsay rule, by the person’s own statement as to the plan and intention, and is of evidentiary value in tending to show that the plan and intention was probably carried out.” For authority, he refers to VI Wigmore, 3rd Edition 79, sec. 1725, and cites cases to the effect that declarations by the decedent were admissible as statements of her mental condition at that time and to prove her design, and states that the additional portion of her purpose in meeting her husband was corroborative of what defendant testified was his rememberance of what happened immediately preceding the tragedy. The defendant testified that he had an appointment to meet his wife at her home on the morning of the tragedy, that the appointment was made on the night before by telephone, that Mrs. Eisenstein was going to see a friend of hers that night, that he was to come for breakfast the next morning and that they were to talk things over. It is argued that the statement of design is admissible in its entirety as an exception to the hearsay rule. While the authorities cited by appellant tend to sustain his position, there are holdings to the contrary. See Ausmus v. People, 47 Colo. 167, 107 P. 204; a homicide case, in which testimony that the alleged decedent stated to a witness when he filed upon his homestead that when he got ready to leave, he might have to leave in 15 minutes and light out, was held inadmissible as hearsay; People v. Estes, 188 Cal. 511, 206 P. 52, ruling the admission of testimony by decedent's sister that the decedent, defendant's wife, had an appointment to meet defendant on the night of the homicide, which had been made by decedent, was erroneous because such testimony was hearsay as to defendant, but not prejudicial where the sister also testified that defendant stated to her, after the homicide, that he kept the appointment, thereby establishing his knowledge thereof; State v. Waggoner, 49 N.M. 399, 165 P.2d 122, in prosecution for assault with intent to kill, testimony as to oral statements, made to witnesses before incident leading to assault, by one who died after assault and before trial, was held inadmissible as hearsay, irrelevant and incompetent; Underhill's Criminal Evidence, 4th Ed. sec. 567, stating: "* * * But declarations, prior to the crime, forming no part of the res gestae of a relevent act and not communicated to the accused, or if known to him, but not acquiesced in, or statements and accusations by deceased which are narrative in their form and inadmissible as dying declarations, are generally rejected.” In the instant case, testimony was admitted establishing the fact that there was to be a meeting of deceased and defendant. The excluded portion of deceased’s declara tions related to matters to be discussed and was narrative in form. The purpose of the meeting was stated by defendant in his own testimony that “they were to talk things over”, and while counsel for appellant argue that the excluded testimony was corroborative of defendant’s testimony, it should be noted that corroboration thereof was made’by testimony of the state’s witness, Eugene Eisenstein, appellant’s son, whose testimony was in the record before the examination of Mary Jane Johnson. The general rule is that statements or declarations made by a deceased prior to his unlawful death and which form no part of the res gestae are inadmissible in evidence against one accused of the unlawful killing. To admit this type of testimony might involve compelling the court and jury to listen to an irrelevant narration of hearsay evidence. If the appellant were complaining that he had been denied the opportunity to put in evidence declarations of the deceased which would have negatived the state’s position that he was a trespasser and had intruded into the home with the intent to kill, then his complaint would fall on attentive ears. This privilege was not denied him. He was permitted to establish by his own testimony that he went to the home of his deceased wife by engagement. No error. Ground of Appeal No. 5 Appellant contends that his constitutional rights have been invaded because nf a question which the prosecutor asked the witness Andres concerning what church he attended. In support of this ground of appeal and assignment of error he cites Section 12 of Article 2 of the Constitution of Arizona reading as follows: “ * * * No religious qualification shall be required for any public office or employment, nor shall any person be incompetent as a witness or juror in consequence of his opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony.” (Emphasis supplied.) The question propounded, without objection, was: “Q. What church do you attend? A. I attend a number of different churches.” The answer to this question was volunteered in response to a later question, as follows: “Q. You didn’t at any time of the examination recall any headlines or pictures or anything like that? A. No, I don’t recall it but when I made the report and discussed the report with Dr. Bendheim this was mentioned. You asked me what church I attend. I do not attend any church that Mr. Eisenstein might attend. I attend churches, the Presbyterian church or other churches. I do not attend the church which Mr. Eisenstein attends (Emphasis supplied.) The constitutional provision quoted above has been considered in two Arizona cases: Fernandez v. State, 16 Ariz. 269, 144 P. 640, and Tucker v. Reil, 51 Ariz. 357, 77 P.2d 203. In the first case, the court merely ruled that questions put to an aged Indian woman to test her belief in God or the Great Spirit were improper. In the latter case, a witness was asked in regard to his membership in a particular church, and the court ruled he was, in effect, being questioned in regard to his religious belief, and that it was erroneous, over objection, to permit questioning any of defendant’s witnesses in regard to their religious affiliations. It is to be observed that in the instant case defendant’s counsel made no objection and, in fact, propounded similar questions to his own witness, Morris Meckler, showing that the witness and defendant were both- members of the Beth El Congregation. It is the general rule that unless objection is made to the admission of evidence, it cannot be urged on appeal that it was error for the court to admit it. Tucker v. Reil, supra. It is also the usually accepted rule that where counsel has himself injected a certain issue into the case, he may not object because the other party also introduces evidence of a similar nature. 64 C.J. 172, sec. 193, citing Murphy v. Whitlow, 1 Ariz. 340, 25 P. 532. Likewise, the questioning of defendant by the county attorney as to whether Rabbi Krohn visited him at the jail was not prejudicial error, since defendant’s church affiliation was clearly established by his own witnesses. It follows that no prejudicial error resulted from the questioning by the county attorney to which defendant’s counsel did not then object but of which they now complain. Ground of Appeal No. 6 It is claimed that the trial court erred in summoning a juror for examination in chambers and questioning him as to an interview he purportedly had with defendant at the jail shortly after the killing. Appellant asserts the juror thereby “was intimidated and coerced into an attitude favorable to the prosecution, which he well knew was the only side that could cause him trouble for his failure to mention the visit in his voir dire examination.” After discovering that the juror had paid defendant a visit in jail, the deputy county attorney moved for a mistrial to which counsel for defendant objected on the grounds that there was no claim the juror was actually disqualified and the granting of a mistrial would do a serious injustice to the defendant on account of the expense and hardship involved. The motion for mistrial was denied. Then counsel for the state gave notice to the court of his intention to call the juror, Edwin C. Moore, as a witness claiming the juror’s evidence might be relevant to whether the defendant at that time appeared to be sane or insane. Thereafter the matter was taken up in chambers and counsel for defendant objected to the state calling the juror as a witness on the ground it was a mere fishing expedition and would tend to intimidate the juror and make him feel that he had to vote with the prosecution in order not to be proceeded against in some way himself. The court called the juror into chambers in the presence of the attorneys for both sides, and stated that it had been called to the court’s .attention there had been a visit by him and the defendant at the county jail on December 15, 1949, lasting about a half Four, and invited the juror to tell about it. In response, the juror told of going to the jail merely to take a message to defendant from his' neighbor, and that he got some cigarettes for the defendant at his request. He was asked if at that time he formed any opinion as to defendant’s mental condition, whether he was sane or insane, to which Mr. Moore answered “No”. The juror was questioned at length by counsel for the defendant, the deputy county attorney and the court. Counsel for defendant specifically elicited from Mr. Moore that he would not in.the least be intimidated on account of the interview. Mr. Moore was a retired police officer with 24 years of service all of which facts had been brought out on his voir dire examination and personally known to counsel for defendant. At the conclusion of the interview, counsel for the state announced that he was perfectly satisfied with the interview. Defendant’s counsel commented as follows: “We are satisfied except we hope that bringing this to the Court by the officers will not be unfair to our client and will not in any way intimidate this juror. All of this is subject to our objection that we have heretofore interposed.” This statement is, to say the least, incongruous. Its elements are incombinable in that one cannot say he is satisfied and in the same breath reserve the right to rely on his objection theretofore announced which, at the time made, indicated that he was not satisfied. The court admonished the juror that he was not to consider any of the disclosures made upon the interview or statements made by court or counsel as evidence in the case, at which time the juror stated: “The other jurors as far as I am concerned won’t know what happened down here.” We are not able to glean from any of this proceeding wherein the juror was in any manner coerced or intimidated. Cases cited by appellant on this assignment of error are Whitson v. State, 65 Ariz. 395, 181 P.2d 822; People ex rel. Flaherty v. Neilson, 22 Hun., N.Y., 1. These cases are easily distinguishable from the instánt case as a reading of them will disclose. The assignment is without merit. Ground of Appeal No. 7 Prejudicial error is claimed in the giving of the following instruction to which exception was made: “The rules of evidence ordinarily do not permit the opin ions of witnesses to be received as evidence. An exception to this rule exists in the case of expert witnesses, and also in the case of non-expert witnesses relative to the question of sanity or insanity. A person who by education, study and experience has become an expert in any art, science or profession, and who is called as a witness, may give his opinion as to any such matter in which he is versed and which is material to the case. Likewise, non-expert witnesses may give their opinions on questions of sanity or insanity. You should consider such opinions and should weigh the reasons, if any, given therefor. You are not bound, however, by any such opinions. You may give them the weight to which you deem them entitled, whether that be great or slight, and you may reject them, if in your judgment the reasons given therefor are unsound.” It is asserted that the instruction as given is violative of Section 12 of Article 6 of our Constitution reading: “Judges shall not charge juries with respect to matters of fact nor comment thereon, but shall declare the law.” In support of this contention, appellant relies upon the case of Security Ben. Ass’n v. Small, 34 Ariz. 458, 272 P. 647, 650, ruling that a trial court may not extol or disparage testimony of experts or instruct the jury as to how they should appraise the weight of expert testimony, and that to do so is in violation of the constitutional provision referred to. The case is distinguishable from the one at bar, the instruction there given placing emphasis by repetition upon the duty of the jury to disregard opinion evidence and stating “you are not bound to find the facts to be as they have been testified”. No such language was used in the instruction here given, reading: “* * * You should consider such opinions and should weigh the reasons, if any, given therefor. You are not bound, however, by any such opinions. You may give them the weight to which you deem them entitled, whether that be great or slight, and you may reject them, if in your judgment the reasons given therefor are unsound.” No single piece of evidence was “singled out” and none given “undue prominence” and the jury was left to determine the weight of the testimony of both expert and non-expert witnesses on an equal basis. In another case cited by appellant, Babb v. State, 18 Ariz. 505, 163 P. 259, 260, the instruction given actually singjed out the testimony of a certain witness, naming him, and stated: “ * * * and if from all the evidence, facts, and circumstances brought out on this trial it appears to you beyond a reasonable doubt that the said witness Dean Becker has testified truthfully, then you should give his testimony the same weight and credence as any other witness.” Clearly such an instruction was erroneous and prejudicial as singling out the testimony of a single witness and giving undue promi nence to an isolated fact. The same objection was made in the other case cited by appellant, Schutz v. State, 125 Wis. 452, 104 N. W. 90, 93, where the court said: “it is not proper for the court to select one witness from several, and apply to him or his testimony exclusively rules of consideration equally applicable to others.” There was no such “singling out” of evidence in the instruction given in the instant case; rather, it referred to a class or kind of evidence of all witnesses giving such evidence. It has been held that no instruction will be declared to violate section 12, Article 6 of the Constitution, when considered by itself. Instructions must be considered as a whole, not piecemeal. Vigil v. State, 33 Ariz. 51, 262 P. 14; Macias v. State, 36 Ariz. 140, 283 P. 711; Judd v. State, 41 Ariz. 176, 16 P.2d 720; Wolff v. First Nat. Bank, 47 Ariz. 97, 53 P.2d 1077; Illinois Bankers Life Ass'n v. Theodore, 47 Ariz. 314, 55 P.2d 806. It is the rule that this section must be construed with section 22 of this article, so that violation hereof is not reversible when not prejudicial. Erickson v. State, 14 Ariz. 253, 127 P. 754; Merino v. State, 16 Ariz. 132, 141 P. 710; Vincent v. State, 16 Ariz. 297, 145 P. 241; Blackburn v. State, 31 Ariz. 427, 254 P. 467. Ground of Appeal No. 8 This ground of appeal is directed to the action of the trial court in its instructions relating to deliberation and premeditation. The claim is that the court erred to the prejudice of the defendant in giving an instruction which greatly emphasized the speed with which deliberation and premeditation may take place, while deleting from defendant’s requested instruction language hereinafter shown to have been stricken which laid stress upon the characteristics of these words when placed in balance against their antonyms. The requested instruction is here set out in full, the italicized language being the portions of the submitted instruction that were' deleted: “While the court has instructed you relative to the fact that premeditation and deliberation do not require any particular or specified length of time, still it is proper that I should further define to you the meaning of ‘premeditation’ and ‘deliberation.’ “The adjective ‘deliberate’ means ‘formed, arrived at, or determined upon as a result of careful thought and weighing of considerations; as a deliberate judgment or plan; carried on coolly and steadily, especially according to a preconceived design; * * * Given to weighing facts and arguments with a view to a choice or decision; careful in considering the consequences of a step; * * * unhurried; * * * Characterised by reflection; dispassionate; not rash,’ * * * The word is an antonym of 'hasty, impetuous, rash, impulsive.’ * * * It has been judicially declared that ‘Deliberation means careful consideration and examination of the reasons for and against a choice or measure/ * * * The verb ‘premeditate’ means ‘To think on, and revolve in the mind, beforehand; to contrive and design previously.’ * * * “Unless there was such deliberation and premeditation, in no event could the defendant be found guilty of murder in the first degree. Any homicide which is the result of mere unconsidered or rash impulse hastily executed, is not murder in the first degree.” (Emphasis supplied.) It is claimed that the instruction, as given, is not in harmony and is contrary to the holding of this court in Moore v. State, 65 Ariz. 70, 174 P.2d 282, 290. In the latter case, the court was considering the effect of an instruction which emphasized that thoughts may follow each other with great rapidity and that cold, calculated judgment may be arrived at quickly. With reference to such an instruction, we said: “But if they are instructed in that vein, which emphasizes the rapidity with which thoughts may follow each other, fairness requires a further instruction placing at least equal emphasis on the true (see definitions above) meaning of the terms. In other words, while the jury may be told that the brain can function rapidly they must not be misled into thinking that an act can at the same time be hasty, hurried, and deliberate or impulsive, unstudied, and' premeditated. The extent of the reflection in every case, if it is to pass the test, must fairly and reasonably meet the ordinary and unquestioned significations of the test words.” In the instant case, the court very clearly defined the crimes of murder in the first degree and murder in the second degree and manslaughter. By these instructions the jury was told that to convict one of the crime of murder in the first degree, the evidence must show premeditation. The court was very careful to point out that the unlawful killing of a human being with malice, done deliberately and with premeditation, is murder in the first degree and the unlawful killing of a human being with malice aforethought, but without deliberation or premeditation, is murder in the second degree. The jury was further instructed as follows: “The unlawful killing, if any, must be accomplished with a deliberate and clear intention to take life in order to constitute murder of the first degree. The intention to kill must be the result of deliberate premeditation. There need, however, be no appreciable space of time between the intention to kill unlawfully and the act of killing. They may be as instantaneous as the consecutive thoughts of the human mind. It is only necessary that an act of unlawful killing be preceded by a concurrence of will, by deliberation and premeditation on the part of the slayer, and if such is the case the killing, if not justified or excusable, is murder of the first degree, no matter how rapidly these thoughts of the mind succeed each other or how quickly they may be followed by the act of killing. A man may do a thing, willfully, deliberately and intentionally from a moment’s reflection as well as after pondering over the situation .for a day or for a month or for a year. There is nothing in the sections of the penal code relating to the subject which indicates that the Legislature meant to assign any particular period to this process of deliberation or premeditation in order to bring the act of murder within the first degree, but while the fatal purpose or intention and its execution may follow this rapidly upon each other it is proper for you to take into consideration the shortness of such intervals, if such be the fact, in considering whether such sudden and speedy execution may not be attributed to sudden passion and anger rather than the deliberation and premeditation which must characterize murder in the first degree.” Following this instruction, the court gave the instruction, as deleted, supra, which uninterruptedly reads as follows: “While the Court has instructed you relative to the fact that premeditation and deliberation do not require any particular or specified length of time, still it is proper that I should further define to you the meaning of premeditation and deliberation. The adjective ‘deliberate’ means formed, arrived at or determined upon as a result of careful thought and weighing of consideration. The verb ‘premeditate’ means to think on and revolve in the mind beforehand, to contrive and design previously.” It will be noted'that the court repeatedly stressed that the intention to kill must be the result of deliberate premeditation. It is true that it was mentioned that there need be no appreciable space of time between the intention to kill unlawfully and the act of killing, but there was stressed the necessity of it appearing that the unlawful killing was preceded by “concurrence of will” by deliberation and premeditation. Then, after advising the jury that the fatal purpose or intention and its execution may follow rapidly upon each other, they were advised that “it is proper for you to take into consideration the shortness of such intervals if such be the fact, m considering whether such sudden and speedy execution may not be attributed to suelden passion and anger rather than the deliberation and premeditation which must characterize murder-in the first degree ’’ The court then meticulously defined' the adjective “deliberate” by telling the jury that it means “formed, arrived at or determined upon as a result of careful thought and weighing of consideration”. It then defined the verb “premeditate” by stating that it means “to think on and revolve in the mind beforehand, to contrive and design previously”. In our opinion the instructions, as given, constituted a fair and honest appraisal of the elements that must be present to constitute murder in the first degree. The stricken portion of the instruction, although copied from the Moore case, was not essential to a determination of the Moore case and is in no man ner persuasive of the fact that the words “deliberate” and “premeditate” were not understanding^ defined. The extended discourse concerning the etymologies of the words “premeditate” and “deliberate” contained in the Moore case, suggesting their synonyms and antonyms, while informative, is a matter of erudite learning, and was in no manner necessary to the final, commonplace and understandable definitions here given. We approve of the instructions and believe them to be entirely consonant with the pronouncements in the Moore case. Ground of Appeal No. 9 Exception was made to the following instruction with reference to insanity, which is here assigned as error. The instruction reads as follows: “You are instructed, ladies and gentlemen, that although the defendant may have been laboring at the time of the alleged homicide under partial insanity, as for instance suffering from some insane delusion and hallucination or some loss of memory or if at the time he was actuated and impelled by some passion, some hatred, some anger, some revenge which caused him to commit the alleged homicide, or if he simply lacked normal development of his moral sensibilities so he had slight regard for human life—as I say, even though he was suffering from or influenced by or impelled by any and all of those things, or things of a similar nature in the commission of the alleged homicide, still, being so impelled and influenced, if he understood at the time of the commission of the alleged homicide or the other acts alleged—if you believe beyond a reasonable doubt that the defendant committed those acts—still, if he understood and appreciated the nature and character of his action 'and its consequences, and if he had knowledge that his acts were wrong and criminal, and in violation of law and that they might subject him to punishment, and if he knew that if he did the acts he would do wrong, then and in that event he is responsible for his acts, and such partial insanity, such passion, such hatred, such revenge, such moral insensibility or the like, if he was actuated by any such, would not be sufficient to release him from the responsibility of his criminal act. “You are further instructed, ladies and gentlemen, that if a person entertain a morbid state of passion unsettling the physical or moral system, the mental faculties remaining meanwhile in such a condition that a person can distinguish between right and wrong and understand the nature and quality of his acts and the consequences thereof, he is held legally responsible for his conduct and amenable to the laws of the State of Arizona.” Complaint is made that the first paragraph of this instruction is argumentative and not supported by the evidence, and tended to belittle the mental misfortune and illness of the defendant and was repetitious of the next paragraph. The first paragraph of this instruction has heretofore been con sidered and received the approval of this court in the case of State v. Macias, 60 Ariz. 93, 131 P.2d 810. Under the facts and circumstances of this case, we feel that it was entirely appropriate and see no occasion to depart from the pronouncements therein made. With reference to the last paragraph of the instruction, the complaint is that there was not sufficient evidence of a morbid state of passion unsettling the physical or moral system of the defendant and, if there was, then that the instruction was a comment on the evidence and that it was “casting about, trying to brand the defendant with a morbid state of passion”. There was a plethora of evidence offered by the defendant to the effect that he was legally insane at the time of the commission of the offense and had been for a number of years mentally unstable and on two prior occasions acutely insane. A person is said to entertain a morbid state of passion when his passion is intense, vehement, and indicative of emotional excitement, prompting to violent and aggressive action as rage, anger, hatred, furious resentment or terror, induced by, aggravated or superimposed on a diseased or sickly mind. See definition “passion” Black’s Law Dictionary, Webster’s New International Dictionary, Seccond Edition, Unabridged. There was evidence from which the jury might well have concluded that the defendant’s acts were actuated by uncontrollable passion induced by a sick and/or diseased mind. The effect of the instruction is that, regardless of the fact that a person entertains a morbid state of passion sufficient to unsettle the physical and moral system, yet if the mental faculties remaining are such that such a person can distinguish between right and wrong and understand the nature and quality of his acts and the consequences thereof, he is legally responsible. The instruction correctly stated the law on this phase of the case. Ground of Appeal No. 10 The ground for this specification lies in the fact that the trial court refused to give an instruction formulated by the defendant to the effect that if the evidence failed to show any motive on the part of the defendant to commit the crime charged, such want of motive, if any, was a circumstance'to be considered in favor of defendant’s innocence. The general rule is that “If the offense is made out clearly, it is not necessary to prove motive, and the court properly may so charge, or may refuse a request to charge to the contrary.” 23 C.J.S. Criminal Law, § 1198, citing Evans v. State, 199 Ind. 55, 155 N.E. 203. There was much direct and circumstantial evidence indicating the intent of the defendant to take affirmative action. In this situation, no instruction as to motive was required. State v. Santino, Mo., 186 S.W. 976. Briefly, the evidence disclosed that defendant and his wife had been separated and living apart for some months. During the summer of .1949 defendant had filed a complaint against his wife for divorce to. which she had filed a cross-complaint. In October of 1949, a final property settlement had been arrived at but formal divorce proceedings had not been, concluded. Prior to and during the time that the divorce action was pending, there had been much crimination and recrimination between the parties. The defendant had accused his wife of undue attentions to another man and with cheating him financially, hiding moneys belonging to the community and making false income tax returns to the Federal Government, which he had signed at the request of his wife and assertedly not knowing the falsity thereof. On the morning of the killing, defendant went to the residence of his wife, parked his car a short distance down the street and was seen walking up and down the private driveway leading from the street to the garage premises at the rear. The state’s evidence showed that he effected entrance to the house through the back door by use of his own key. At the time he was partially intoxicated and armed with a .38 revolver. By his own testimony he claimed that shortly after entering, his wife applied an opprobrious epithet and demanded that he convey to her valuable real estate that had been set aside to him in the property settlement agreement theretofore reached. In addition to the legal defense of not guilty by reason of insanity, defendant also endeavored to explain away the killing by saying that it was accidental and occurred during a scuffle between him and his wife at a time when he was endeavoring to commit suicide. In view of the jury’s verdict, no credence was placed in this explanation. Within the rules referred to above, there was ample evidence, direct and circumstantial, from which the jury might well have inferred a predetermined intent to kill, under which circumstances an instruction to the jury that they might consider a want of motive as a circumstance to be considered as favoring the accused would have been entirely inappropriate and not justified by the evidence. Ground of Appeal No. 11 This particular ground of appeal complains of the fact that the court did not, of its own motion, instruct the jury that in the event they returned a verdict finding defendant not guilty by reason of insanity, defendant would not necessarily be turned loose upon society but that the court would have the power to inquire into his present sanity and that if it were determined that defendant was presently insane, he would be committed to the state hospital for the insane and there to be detained until he was well. By the provisions of section 44-1917, A.C.A.1939, there is conferred upon the court the power to make inquiry into the sanity of one who has been found not guilty of a crime upon the ground of insanity. The trial of the defendant was held more than nine months after the shooting. The jury was specifically instructed that, in view of the defense made, the defendant could not be found guilty of any offense if, at the time of the alleged commission of the homicide, he, by reason of mental affliction and illness, did not know the nature and quality of the act he was charged with having committed, or if he did, that he did not know or realize that he was doing a wrong or criminal act; and the jury was further instructed that before they could find the defendant guilty of any offense, they would have to find, beyond a reasonable doubt, that the defendant at the time of the alleged offense was in such a state of mind that he could distinguish between right and wrong with reference to the particular- act and could and did realize the quality and-nature of the act he was doing. At the trial, defendant’s present sanity was assumed and was not in issue. It was only the defendant’s sanity at the time of the alleged offense that was in issue. The jury was so specifically instructed. The jury was further charged that if they found the defendant at the time he committed the act was incapacitated by reason of legal insanity, as the same had been defined to them, they should acquit the defendant, and that it was no concern that he might have recovered and was sane at the time of the trial. Had counsel for defendant thought that their client was insane at the time of the. trial, we are confident they would have presented to the court and jury that issue, or had that issue determined in a collateral proceeding. It would have been error for the court to have instructed the jury, as counsel suggests, and injected into the trial an issue that was not properly before the court. Regardless of the fact that we have carefully examined the several grounds of appeal, we have, in view of the gravity of the penalty, considered the record as a whole to determine whether, as required by Article 6, Section 22 of the 'Constitution, justice has been done. On the record there was but one question going to the merits of the case, and that is whether the jury was justified in concluding from the evidence before them that the defendant at the time he fired the fatal shot was legally sane and accountable for his act. The jury, on evidence legally sufficient to sustain such a conclusion, determined that he was legally sane and that the killing was deliberate and premeditated. The defendant’s sanity at the time of the killing was fairly put to the jury. In view of all the evidence, its determination on this point is conclusive upon this court. We find no errors in the rulings of the trial court so prejudicial as to have deprived defendant of a fair trial. The judgment is affirmed. UDALL, C. J., and STANFORD, PHELPS and DE CONCINI, JJ., concur.

UDALL, Chief Justice, The Industrial Commission of Arizona, defendant-appellant, has appealed from a judgment of the superior court entered in favor of Industrial Furnaces, Inc., plaintiff-appellee, which set aside certain orders of the commission determining amount of premiums due, and classifications and rates applicable to plaintiff’s operations. The principal issue concerns the jurisdiction of the commission to enter these orders. The facts show that plaintiff applied for a policy of insurance in the state compensation fund, representing to the commission that its operations came under "Code No. 5022, Masonry, Not Otherwise Classified” requiring a certain rate of premium. The policy was issued by the commission and plaintiff paid premiums-under that classification. Upon audit the commission ascertained that plaintiff, after obtaining the • policy, had contracted other work with two large industrial firms, which, according to> the commission’s view, fell within "Code No. 3726 as boiler installation or repairs, including construction of necessary concrete or masonry foundations,” a classification carrying a higher rate of premium. In this latter work plaintiff was in competition with other contractors doing similar work who were classified under No. 3726 and who were paying the higher rate required under this classification. The change in plaintiff’s operations was not reported to the commission for an endorsement on the policy prior to plaintiff’s undertaking this latter work. Subsequently, the commission entered an order changing plaintiff’s classification and determining that the plaintiff owed it additional premiums based upon the higher-rate under the new classification. Petition for rehearing was granted and testimony was taken. Thereafter, findings were made and an order entered by the commission reaffirming its previous order fixing the higher classification and the increased amount of premiums due from plaintiff to the state compensation fund. Steps were taken by plaintiff to obtain a court review of the commission’s orders in that the present suit was timely filed in •superior court to set aside and vacate the orders on the grounds that such orders were unreasonable and unlawful, sec. 56-914, ACA 1939. It was further alleged that the exclusive remedy of defendant for the collection of premiums was by suit under section 56-948, ACA 1939. Plaintiff has failed to recognize that there is a difference between the commission’s initial right to determine the amount of premiums claimed due and the necessity of its collecting same by civil suit. Defendant filed its answer with an abstract of its record in said matter, including the reporter’s transcript of the evidence taken before the commission, though no counterclaim under section 21-437, ACA 1939, Rules Civ.Proc. Rule 13(a), was made. Thereupon 'plaintiff filed a motion for summary judgment, citing as its sole authority our recent decision in the case of O’Neill v. Martori, 69 Ariz. 270, 212 P.2d 994. After oral argument the trial court entered judgment that said orders “and each of them is hereby annulled and declared of no force or effect whatever.” These proceedings followed and the only error assigned is this ruling. It manifestly appears that the learned trial court took the view that the commission was without jurisdiction to enter orders determining classifications, rates, the amount of premiums due, and the status of employer and employee for ^premium purposes, and that therefore the orders were unlawful. It should be noted that there is no finding by the trial court that the classifications and rates applied to plaintiff’s operations were “unreasonable”, hence we are not confronted with a controverted factual situation. Under these circumstances, where only questions of law are involved, we are not bound by the conclusions of either the commission or the trial court but at liberty to draw our own legal conclusion from the record before us. Mountain States Tel. & Tel. Co. v. Sakrison, 71 Ariz. 219, 225 P.2d 707. In a companion case decided this date, Industrial Commission of Arizona v. J. & J. Construction Co., 71 Ariz. 139, 231 P.2d 762, we have discussed and clarified the ruling of this court in the case of O’Neill v. Martori, supra. In the J. & J. Construction Co. case we upheld the validity of orders issued by the commission similar to those involved in the instant case. There is no occasion to repeat here the principles there enunciated, for we pointed out that the Martori case has been misinterpreted and is not authority for holding that the commission is without jurisdiction to enter such orders. We hold that the commission had the right and the authority under powers granted to it by the legislature, sec. 56-923, ACA 1939, to enter upon an inquiry to determine classifications and rates, and resulting premiums due, predicated upon these predetermined factors, and that after conducting hearings at which plaintiff had the opportunity to be heard, it had jurisdiction to enter all of the orders in question. Plaintiff then had the right, which it exercised in the instant case, to have the lawfulness and reasonableness of those orders reviewed in the superior court. The trial court therefore erred in declaring as a matter of law that the orders were invalid as being beyond the jurisdiction of the commission to enter. Judgment reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. STANFORD, PHELPS and DE CONCINI, JJ., concur.

OPINION MILLER, Judge: ¶ 1 A jury found Antajuan Carson Jr. guilty of two counts of second-degree murder and two counts of aggravated assault. He was sentenced to concurrent terms, the longest of which was thirteen years. His appeal requires us to determine whether a defendant asserting a mistaken identity defense may also obtain a justification instruction. We conclude that although the defenses are inconsistent, it remains within the province of the jury to determine the facts, and if those facts could support justification then the jury must be instructed on it. Therefore, we affirm as to the aggravated assaults because there was no evidence supporting justification, and reverse the second-degree murder convictions, as to which the slightest justification evidence existed, and remand. Factual and Procedural Background ¶ 2 We view the facts in the light most favorable to Carson, the justification instruction’s proponent. State v. King, 225 Ariz. 87, ¶ 13, 235 P.3d 240, 243 (2010). Two men, J.M. and S.B., were shot and killed, and a third, B.C., was shot and wounded, outside a party at a residence in October 2013. Carson was indicted as the lone shooter. ¶ 3 B.C., the surviving victim who came to the party to deejay, testified that he had known Carson only from a social media website and had seen him at a couple of parties. Shortly after B.C. arrived, Carson told B.C. that he was carrying a nine-millimeter pistol that shot like a .22-caliber. Multiple witnesses saw Carson with a black gun at some point during the night. ¶ 4 An argument occurred inside the house among four or five young men. The parties stipulated that there was “animosity or bad blood” between Carson and J.M. arising out of a prior dispute between Carson and J.M.’s brother. The men, including J.M. and S.B., confronted Carson and got into a shoving match or fistfight. Multiple people saw Carson display a gun inside the house. ¶ 5 People began leaving and the confrontation moved outside. As B.C. left through a side door and came around the side of the house, he saw Carson on the ground, surrounded by the same four men including J.M. and S.B, B.C. was not one of the four men. The men were hitting and kicking Carson. B.C. pulled S.B,, whom he knew, out of the fray and walked him across the street. B.C. told S.B. that if he wanted to fight Carson, he should fight him one-on-one rather than “jump[ing]” him in a group. ¶ 6 B.C. testified he then had seen the fighting stop, but yelling and screaming continued. Then a man in the area of the fight stood up, and B.C. heard a gun cock. Someone said “He has a gun,” and everyone started running. One witness testified the man getting jumped had “[p]ull[ed] out his gun so they could get off him” and then “[h]e started shooting.” The man shot J.M., who fell. J.M. tried to get back up and run away, but the man shot him again and he stayed down. B.C. was across the street when the man looked him in the eyes, pointed the gun at him, and shot him in the abdomen. Finally, the man shot and killed S.B. Based on eyewitness interviews and the locations of shell casings at the scene, the shooter moved his hand or changed positions from right to left while firing. ¶ 7 Police officers found the bodies of J.M. and S.B. about one and a half to two blocks apart, in opposite directions from the party house. An autopsy later established J.M. had been shot twice in the back, and S.B. had been shot once in the side of his chest and once in the bottom of his foot. The lack of soot or stippling around the entrance wounds on the decedents indicated either that the shots had been fired from more than three feet away, or that a heavy piece of fabric might have caught all of the soot at closer range. There was no testimony that the victims were shot with the same gun, but no eyewitnesses reported seeing more than one person shooting that night either. Officers found ten nine-millimeter shell casings and one nine-millimeter live round at the scene. Police never found the murder weapon or weapons. ¶ 8 Officers also found a bloody knife near S.B.’s body. The knife was never tested for DNA or fingerprints. Similarly, blood on a second knife tucked inside S.B.’s belt was not tested. A detective explained that the investigation had not revealed that anyone used a knife during the altercation, and so testing was not necessary. ¶ 9 Carson became a person of interest early in the investigation. Police obtained an arrest warrant for him, and he was apprehended about ten days later in Detroit, Michigan. Several eyewitnesses identified him as the shooter, but several others did not. He did not testify or present evidence in his case-in-chief. ¶ 10 Carson unsuccessfully requested a self-defense justification instruction. Despite the trial court’s refusal, in closing both sides indirectly argued self-defense as it pertained to the knives found at S.B.’s body, although Carson’s primary contention remained mistaken identity. He was convicted and sentenced as described above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1). Waiver and Standard of Review ¶ 11 Carson timely requested a self-defense instruction in writing, filed a written motion in support of that request, and argued that motion to the trial court during trial while the jury was absent. In its oral ruling denying the instruction, the court relied on State v. Gilfillan, 196 Ariz. 396, 998 P.2d 1069 (App. 2000), which had not been cited by the parties. The court explained “[Gilfillan] specifically holds that given the defendant denies committing the act with which he is charged, it follows that he could not argue self-defense.... So I think that given how the defense has presented this case in that he didn’t do it and someone else did it ... I think the court legally cannot give a self-defense instruction.” ¶ 12 The state first contends Carson forfeited his objection except for fundamental error review because the trial court, rather than he, cited Gilfillan. It relies on State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005), which stands for the general proposition that when a defendant fails to object to alleged trial error fundamental error review applies. The state’s argument that Carson should have objected specifically to the court’s “application of Gilfillan to his case,” would expand Henderson’s reach far beyond its intended purpose of placing the initial burden at trial on a party to make an objection. Moreover, Carson specifically argued it would be “perfectly reasonable” to argue to the jury, “ ‘He didn’t do it, but if you think he did, the facts support self-defense here.’ ” This argument was sufficient to give the court the opportunity to rule on the issue, which it did. See State v. Fulminante, 193 Ariz. 485, ¶ 64, 975 P.2d 75, 93 (1999). We also conclude Carson complied with Rule 21.3(c), Ariz. R. Crim. P., which provides that a party must object to the failure to deliver a particular instruction before the jury retires. The issue is preserved. ¶ 13 We review a court’s decision not to give a jury instruction for an abuse of discretion. State v. Vassell, 238 Ariz. 281, ¶ 8, 359 P.3d 1025, 1027-28 (App. 2015). A court abuses its discretion if it commits an error of law in exercising that discretion. State v. Lychwick, 222 Ariz. 604, ¶ 7, 218 P.3d 1061, 1063 (App. 2009). We review issues of statutory interpretation de novo. State v. Gear, 239 Ariz. 343, ¶ 11, 372 P.3d 287, 289 (2016). Slightest Evidence of Justification ¶ 14 Use of physical force against another person is justified to protect oneself “when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other’s use or attempted use of unlawful physical force,” subject to certain inapposite exceptions. A.R.S. § 13-404(A). Justification to use deadly force requires, inter alia, an unlawful use or attempted use of such force by the victim. A.R.S, § 13-405(A). As it pertains to this case, deadly physical force means force whose purpose or effect “is capable of creating a substantial risk of causing death or serious physical injury.” A.R.S. § 13-105(14). ¶ 15 Our supreme court has clarified that the “reasonable person” to whom § 13-404(A) refers is “a reasonable person in the defendant’s circumstances.” King, 225 Ariz. 87, ¶ 12, 235 P.3d at 243. Unlike the Model Penal Code and jurisdictions adopting it, in Arizona the defendant’s own belief about whether deadly force is necessary to protect himself is not an element of the test. Compare Model Penal Code § 3.04(1) (use of force justifiable if actor believes force immediately necessary for purpose of protecting himself), and State v. Jenewicz, 193 N.J. 440, 940 A.2d 269, 274-75 (2008) (self-defense claim requires jury to discern whether the defendant had subjective belief deadly force was necessary and whether subjective belief was objectively reasonable), with King, 225 Ariz. 87, ¶ 11, 235 P.3d at 242-43. Rather, what a reasonable person would do in the same situation is a “purely objective” inquiry in the final analysis. See King, 225 Ariz. 87, ¶¶ 11-12, 235 P.3d at 242-43; see also Vassell, 238 Ariz. 281, n.3, 359 P.3d at 1028 n.3. ¶ 16 “A defendant is entitled to a self-defense instruction if the record contains the ‘slightest evidence’ that he acted in self-defense.” King, 225 Ariz. 87, ¶ 14, 235 P.3d at 243, quoting State v. Lujan, 136 Ariz. 102, 104, 664 P.2d 646, 648 (1983). It is a “low standard.” Id. ¶ 15. “[A] hostile demonstration, which may be reasonably regarded as placing the accused apparently in imminent danger of losing her life or sustaining great bodily harm,” constitutes the slightest evidence of self-defense. Id., quoting Lujan, 136 Ariz. at 104, 664 P.2d at 648. Additionally, justification is not an affirmative defense for the defendant to prove; rather, upon the slightest evidence of self-defense it is the state’s burden to prove beyond a reasonable doubt that the defendant’s conduct was not justified. Id. ¶ 6, citing A.R.S. § 13-205(A). Slightest Evidence of Deadly Physical Force by B.C. ¶ 17 Applying these authorities to the facts of this case, we conclude the trial court correctly denied a justification instruction as to the surviving victim, B.C. At oral argument before this court, counsel listed the evidence Carson argues was sufficient to raise justification. • A.L., a guest at the party, had seen another person with a gun at the party earlier. • B.C. had been near the area of the fight, and eyewitness C.Y. said he had seen “everybody” jumping Carson at that point. C.Y. also reported he had attempted unsuccessfully to pull J.M. and S.B. off Carson shortly before the shooting. • A day later, a neighbor found a partially crushed .40-caliber shell casing two houses away from the area of the fight. A .40-caliber gun was recovered from the passenger-side map pocket of T.C.’s car, in which B.C., together with his girlfriend T.C. and two other people, had ridden to the hospital after he had been shot. • The .40-caliber gun was not tested to determine whether it had been fired that night. Testing of the DNA on the .40-caliber gun excluded B.C. as a major contributor, but was inconclusive as to whether B.C. could have been a minor contributor. • T.C. had lied to the police about the gun being in the car. • A detective testified the nine-millimeter weapon had been discharged in a “fluid-motion shooting.” ¶ 18 Carson acknowledges that this evidence does not show B.C. made a “hostile demonstration” toward him, King, 225 Ariz. 87, ¶ 15, 235 P.3d at 243, quoting Lujan, 136 Ariz. at 104, 664 P.2d at 648; rather, he contends the jury could have inferred that B.C. (1) possessed the .40-ealiber gun at the party, (2) assaulted Carson by displaying the gun and firing it at him, (3) placed the gun in T.C.’s car on the way to the hospital, and (4) instructed T.C. to lie to police about the gun to protect him. ¶ 19 Inferences that “mak[e] an argument possible” do not substitute for the slightest evidence, and a justification instruction must rest upon something more than “speculation.” Vassell, 238 Ariz. 281, ¶ 9, 359 P.3d at 1028; see also State v. Almeida, 238 Ariz. 77, ¶ 9, 356 P.3d 822, 825 (App. 2015) (justification instruction required only if “record provides evidence ‘upon which the jury could rationally sustain the defense’ ”), quoting State v. Strayhand, 184 Ariz. 571, 587-88, 911 P.2d 577, 593-94 (App. 1995); Buzard v. Griffin, 89 Ariz. 42, 48, 368 P.2d 155, 159 (1960) (“An inference is a fact which may be presumed from the proof of the existence or non-existence of other facts.”). As Vassell illustrates, if there is no evidence for a necessary aspect of a prima facie case of justification, then there is not the slightest evidence of justification. Compare Vassell, 238 Ariz. 281, ¶¶ 11-12, 17, 359 P.3d at 1028-29 (instruction not required where justification theory rested on speculative inference—as opposed to slightest evidence—that defendant did not know police officers entering home were officers and not home invaders); with id. ¶¶ 22-29 (Eckerstrom, C.J., specially concurring). Because we conclude Carson’s justification theory as to B.C. necessarily relies upon speculation, a justification instruction was not warranted. ¶ 20 First, there is no evidence B.C. was involved in the physical altercation with Carson. Of the seven testifying eyewitnesses, none suggested B.C. had punched, kicked, or otherwise attacked Carson. Unlike J.M., there was no evidence that there was any bad blood between B.C. and Carson. B.C. only knew Carson from social media and from having seen him at a few other parties. Nor does C.Y.’s testimony that he was attempting to pull some of Carson’s assailants out of the fray undemine or contradict B.C.’s testimony that B.C. pulled S.B. off Carson. ¶ 21 Second, the evidence of the .40-caliber shell casing and gun does not make a prima facie justification case. Carson asks us to assume the jury would disregard the testimony of B.C, and T.C, as lies, and instead find that B.C. possessed the gun at the party. Even if we do so, substantial gaps remain that can only be bridged with speculation. None of the seven testifying eyewitnesses reported seeing or hearing a second shooter at any time that evening. Additionally, Carson’s counsel agreed at oral argument there was “no evidence” that B.C. ever displayed the gun to Carson. Nor is there any evidence that Carson was aware of B.C. possessing a .40-caliber gun before shooting at him. See Vassell, 238 Ariz. 281, n.3, 359 P.3d at 1028 n.3, citing State v. Andersen, 111 Ariz. 381, 386, 868 P.2d 964, 969 (App. 1993). The evidence does not “reasonably and clearly support” justification as to B.C., and so the trial court did not abuse its discretion in denying a justification instruction as to him. Id., quoting State v. Ruggiero, 211 Ariz. 262, ¶ 10, 120 P.3d 690, 692 (App. 2005). Slightest Evidence of Deadly Physical Force by J.M. and S.B. ¶ 22 As to J.M. and S.B,, we conclude there was evidence from which the jury could find that Carson acted in self-defense against those victims. In the light most favorable to Carson, King, 225 Ariz. 87, ¶ 13, 235 P.3d at 243, the evidence showed that four men, including J.M. and S.B., had surrounded Carson and were punching and kicking him while he was on the ground. S.B. also had a knife on his person during the assault and another was found near his body. Such a hostile demonstration could be reasonably regarded as placing Carson in imminent danger of sustaining great bodily ham or losing his life—even more so than in King, in which the only hostile demonstration was the victim hitting the defendant’s head with a water bottle. See id. ¶¶ 15-16. ¶23 It is certainly true that other evidence tended to show Carson had not acted in self-defense against J.M. and S.B. As the state points out, J.M. was shot in the back and S.B. was shot in the bottom of the foot, and the two bodies were found a distance away from the scene of the fight in opposite directions. See State v. Buggs, 167 Ariz. 333, 337, 806 P.2d 1381, 1385 (App. 1990) (law “settled” that “after a fight has broken off, one cannot pursue and kill merely because he once feared for his life”). The evidence does not resolve, however, whether J.M. and S.B. were shot together or in separate locations at a distance apart. Based on the witness testimony regarding these victims, the jury could find they were shot in relatively close proximity and ran in different directions before dying. And it is not the court’s role to resolve conflicts in the evidence in the context of deciding whether to give a justification instruction. See State v. Plew, 150 Ariz. 75, 78, 722 P.2d 243, 246 (1986) (instruction required because defendant presented slightest evidence of self-defense, although record was “ambigu[ous]” and in conflict), disapproved on other grounds by King, 225 Ariz. 87, ¶¶ 9-12, 235 P.3d at 242-43; State v. Wright, 163 Ariz. 184, 185-86, 786 P.2d 1035, 1036-37 (App. 1989) (some evidence of defense of third person necessitated instruction although evidence was disputed and witnesses’ testimony “varied greatly”). Rather, because the slightest evidence tended to show justification, the instruction was required, and it was the state’s burden to prove beyond a reasonable doubt that Carson was not justified in shooting J.M. and S.B. See King, 225 Ariz. 87, ¶ 18, 235 P.3d at 244; see also § 13-205. Justification and Mistaken Identity ¶ 24 The state also contends the law precludes a defendant from arguing both justification and mistaken identity, which it charac terizes as logically inconsistent of necessity. Carson maintains, as he did below, neither law nor logic provides a reason why a defendant should be forbidden from arguing “I didn’t do it, but if you don’t believe me, then the evidence shows I was justified.” ¶25 The trial court ruled a justification instruction was barred as a matter of law by Gilfillan, 196 Ariz. 396, ¶ 40, 998 P.2d at 1080, But Gilfillan is inapposite because the justification claim there was directed at conduct not charged as an offense. Specifically, the defendant was charged with aggravated assault by placing a knife found at the scene against the victim’s neck to force her submission to being bound and sexually assaulted. Id. ¶¶ 3, 11. Gilfillan testified the victim had come at him with the knife and he had struck her in self-defense. Id. ¶ 40. But Gilfillan was not charged with striking the victim. Id. ¶ 26 More importantly, Gilfillan denied possessing a knife, much less ever having threatened the victim with it. Id. Because Gilfillan denied possessing the knife or threatening the victim with it, this court held, “it follow[ed] that he could not argue self-defense.” Id. Unlike GilfiUan, the evidence that Carson was being beaten by a group of people immediately and while he drew his gun directly relates to the murder charges. ¶27 Additional authorities cited by the parties illustrate the requirements that there must be the slightest evidence of justification and it must relate to the offense. In State v. Miller, the trial court correctly denied a self-defense instruction when the defendant testified and disclaimed all assaultive behavior and “no evidence” otherwise suggested self-defense. 129 Ariz. 42, 43, 628 P.2d 690, 591 (App. 1981). And in State v. Ruggiero, in which the defendant “repeatedly and directly denied” having shot the victim and no evidence suggested deadly force had been immediately necessary to prevent a crime, a crime prevention instruction was properly denied. 211 Ariz. 262, ¶¶ 10-13, 120 P.3d 690, 692-93 (App. 2005). Similarly, in State v. Dixon, when the defendant “completely denied shooting the victim,” the court correctly denied a self-defense instruction, finding the record “totally devoid of any testimony which would provide the basis for the giving of such an instruction.” 15 Ariz.App. 62, 64, 485 P.2d 1179, 1181 (1971). ¶28 The defendants in Miller, Ruggiero, and Dixon adopted an “all or nothing” defense, flatly denying they committed the acts giving rise to the charged offenses. The critical distinction in this case, as we have noted, is that Carson argued both that he did not do it, and that if the jury believed he did the shooting, he was justified. And in light of our conclusion above that the record contains the slightest evidence of justification, the record is susceptible to not two, but three possible interpretations: (1) Carson is guilty, (2) Carson shot J.M. and S.B, but was justified in doing so, or (3) Carson was mistakenly identified as the shooter. Both parties have cited one justification case with similar triple possibilities. In Plew, 150 Ariz. at 77-78, 722 P.2d at 245-46, our supreme court reversed the trial court’s denial of a self-defense instruction when the record contained some evidence to support any of three theories: (1) guilt, (2) self-defense, or (3) an accident. Although some parts of the defendant’s testimony suggested he had not fired the gun while other parts suggested he had fired it in self-defense, the court concluded it could not resolve the conflict in the evidence. See id. Instead, the court needed only to assess whether there was the slightest evidence of justification, which there was. Id. at 78, 722 P.2d at 246. Thus, the defendant was entitled to a justification instruction. Id. ¶29 The state emphasizes the court’s statement in Plew that “[a] defendant who denies shooting the victim may not thereafter claim self-defense.” Id. But this seemingly absolute statement narrows upon closer examination. For the quoted proposition, the Plew court cited only Dixon, which was itself a case devoid of evidence of justification. Plew, 150 Ariz. at 77-78, 722 P.2d at 245-46. Additionally, in Plew the defendant inconsistently testified that he did not shoot the victim but also he was “unsure of exactly what transpired,” including who shot the victim. Id. The ambiguity precluded- the appellate court from deciding which portion of his testimony should be believed. Id. Instead, the court limited its consideration to “whether the appellant presented the ‘slightest evi dence’ of self-defense.” Id. Accordingly, we understand the court’s statement in Plew— that a defendant who denies shooting the victim cannot claim self-defense—to be limited to cases like Dixon and Gilfillan in which no evidence supports a self-defense theory or the defendant unambiguously testifies he did not engage in the wrongful conduct attributed to him. Cf. State v. Klokic, 219 Ariz. 241, ¶¶ 6, 8, 196 P.3d 844, 845-46 (App. 2008) (defendant received justification instructions despite also arguing he never pointed gun at victim). ¶ 30 As Carson points out, case law regarding instructions for lesser-included offenses supports our conclusion, E.g., State v. Wall, 212 Ariz. 1, ¶¶ 29-31, 126 P.3d 148, 153 (2006); State v. McPhaul, 174 Ariz. 561, 561-62, 851 P.2d 860, 860-61 (App. 1992). In McPhaul, the defendant was charged with attempted armed robbery of a gas station. 174 Ariz. at 561-62, 851 P.2d at 860-61. He testified and denied all involvement in the crime, claiming mistaken identity. Id. at 562, 851 P.2d at 861. However, the trial evidence also included a surveillance video which arguably did not show a knife in the perpetrator’s hands. Id. In other words, reasonable evidence supported any of three possibilities: (1) McPhaul committed attempted armed robbery with a knife, (2) McPhaul committed the lesser-included offense of attempted robbery without a knife, or (3) McPhaul was mistakenly identified. See id. The trial court denied McPhaul’s request for a lesser-included instruction because he had denied all participation in the crime, but this court vacated and ordered a new trial. Id. at 562, 564, 851 P.2d at 861, 863. We reasoned there was “nothing inconsistent, illogical or improper about a defendant saying, T was not the person who committed the robbery, but even if you do not believe me, the evidence shows that whoever did commit it was not armed.’ ” Id. at 562, 851 P.2d at 861. Just as a lesser-included instruction is required when there is reasonable evidence in the record to support both a mistaken identity defense and a lesser-included defense, so too a justification instruction is required when there is reasonable evidence in the record to support both a mistaken identity defense and a justification defense. See Plew, 150 Ariz. at 78, 722 P.2d at 246. A reasonable jury could have concluded Carson was in fact the shooter but that the state had failed to prove beyond a reasonable doubt that he was not acting in self-defense. ¶ 31 We do not find persuasive the state’s analogy to a defendant who asserts an entrapment defense while denying the acts underlying the charge, which our supreme court has held impermissible for fear of encouraging perjury or confusing the jury. See State v. Soule, 168 Ariz. 134, 136-37, 811 P.2d 1071, 1073-74 (1991). The affirmative defense of entrapment is distinguishable because, by statute, in order to raise it a person “must admit by the person’s testimony or other evidence the substantial elements of the offense charged,” A.R.S. § 13-206(A), and it is impossible to do so while also denying those elements. See also McPhaul, 174 Ariz. at 564, 851 P.2d at 863 (Soule is “limited to cases in which the defendant pleads entrapment”). Therefore, we agree with Carson that it is not legally impermissible for a defendant to argue both justification and mistaken identity. Harmless Error ¶ 32 Finally, the state argues the trial court’s failure to provide a self-defense instruction was harmless, maintaining Carson “apparently had no intention to argue self-defense to the jurors” when he requested the instruction before trial because he was planning to rely on mistaken identity. Even assuming harmless error review applies where the court erroneously denied a justification instruction despite the slightest evidence of justification, but see State v. Taylor, 169 Ariz. 121, 123-24, 817 P.2d 488, 490-91 (1991), the record does not support the state’s contention. Even without the benefit of a self-defense instruction, Carson did in fact make self-defense-based arguments in dosing related to the knives found at the scene. Conclusion ¶ 33 The trial court erred by denying Carson’s request for a justification instruction because slight evidence supported a justification theory as to J.M. and S.B. Carson’s reliance on a mistaken identity defense does not change this result and the error was not harmless. We affirm Carson’s convictions and sentences for aggravated assault against B.C. because there was no evidence of justification relating to B.C.’s conduct. But we reverse Carson’s second-degree murder convictions and remand for further proceedings consistent with this opinion. . One witness also saw a second person at the party with a gun before the fight broke out and asked the person to leave, but she was not sure whether the person left. . B.C. suffered serious injuries. He was the victim as to both aggravated assault charges—one charge of aggravated assault causing serious physical injury, and another charge of aggravated assault with a deadly weapon or dangerous instrument. . The list provided at oral argument was more detailed and extensive than that cited in the briefs. Although we generally do not consider arguments made for the first time at oral argument, Mitchell v. Gamble, 207 Ariz. 364, ¶ 16, 86 P.3d 944, 949-50 (App, 2004), in our discretion we address all of the evidence cited at oral argument, in order to ensure we are viewing the evidence in the light most favorable to Carson, see King, 225 Ariz. 87, ¶ 13, 235 P.3d at 243. . In context it is clear that when C.Y. testified "everybody” had been attacking Carson, he did not mean it literally so as to include B.C. or even himself. There were over fifty people at the party that night, many of whom C.Y. had just explained were "standing” around outside and ”[w]atch-ing," when he saw "everybody” attacking Carson. Additionally, C.Y, did not testify about B.C.'s actions. . Our conclusions are based on the law and should not be construed as a comment on the tactical wisdom of this approach. As trial counsel candidly acknowledged, arguing inconsistent defenses "may not be to some minds the best strategy."

OPINION HOWE, Judge: ¶ 1 This appeal is from the superior court’s ruling affirming the Arizona Department of Health Services’s (“DHS”) order revoking Jimmy Parsons’s caregiver registration card under the Arizona Medical Marijuana Act, A.R.S. §§ 36-2801 through -2810 (“AMMA”), because Parsons had committed an “excluded felony offense” in 2006, making him ineligible to be a designated caregiver. Parsons argued that because his conviction had been set aside pursuant to AR.S. § 13-907, DHS and the superior court erred by using it as a ground for revocation. Specifically, he argued that ineligibility for a caregiver registration card is a “penalty or disability” released upon the setting aside of the conviction. ¶ 2 Whether a set-aside conviction may be considered by DHS as a ground for revoking a license pursuant to the AMMA is an issue of first impression. We hold that ineligibility for a caregiver registration card under the AMMA is not a penalty or disability under AR.S. § 13-907 and that DHS may therefore consider the felony in determining whether to grant, deny, or revoke a caregiver registration card. FACTS AND PROCEDURAL HISTORY ¶3 In May 2006, Parsons pled guilty to one count of possession of narcotic drugs (cocaine) for sale, a class 2 felony. The superior court suspended the imposition of a sentence, placed Parsons on five years’ probation, and required him to pay a fine. Parsons successfully completed the terms of his probation and paid the imposed fine. Accordingly, the court discharged him from probation in 2008. ¶ 4 After Parsons was discharged, he twice moved to have his 2005 conviction set aside under A.R.S. § 13-907, but the superior court denied the motions. Parsons tried again in February 2012. Two months later, the superior court issued an order granting Parsons’s application. The order formally set aside the judgment of guilt, “dismissing the accusations or information and releasing [Parsons] from all applicable penalties and disabilities resulting from the conviction” pursuant to A.R.S. § 13-907. The court also ordered that Parsons’s civil rights be restored, except his right to possess or carry a firearm. ¶ 6 Two years later, Parsons applied to DHS for a designated caregiver registration card under the AMMA. As part of his application, DHS required Parsons to attest that he had not been convicted of an excluded felony as defined in A.R.S. § 36-2801(7)— which includes felony violations of state or federal controlled substances law—and required Parsons to mail in copies of his fingerprints. Parsons signed the attestation, representing that he had not been convicted of an excluded felony offense. The attestation form that Parsons signed included a notice that his fingerprints would be used to run a criminal background check. ¶6 Upon receiving Parsons’s application, DHS sent Parsons’s fingerprints to the Arizona Department of Public Safety to obtain his criminal history report. Generally, when DHS receives a criminal history report, it reviews the report for excluded felonies that would make a person ineligible for a caregiver card. This process can take up to several months. However, because the AMMA requires that DHS issue or deny caregiver applications within 15 days, see A.R.S. § 36-2804.03(A), DHS approved Parsons’s application and issued him a caregiver registration card before completing the background check. ¶7 When DHS ultimately received Parsons’s criminal history report, it learned of his 2005 conviction for possession of narcotic drugs for sale and the superior court's subsequent order setting the conviction aside. Upon consulting with its counsel, DHS concluded that Parsons’s conviction was an excluded felony offense under the AMMA, disqualifying him from being a caregiver. Specifically, DHS concluded that setting aside a conviction does not eliminate the conviction and restores only civil rights irrelevant to the issuance of a caregiver identification card under the AMMA. Accordingly, DHS issued a notice of intent to revoke Parsons’s caregiver card in September 2014. DHS alleged that Parsons had been convicted of an excluded felony offense and that Parsons knowingly violated the AMMA by falsely attesting that he had not been convicted of one. ¶ 8 Parsons requested an administrative hearing to challenge DHS’s notice. At the hearing, Parsons argued that the setting aside of his conviction released him from all penalties and disabilities, including ineligibility under the AMMA. He therefore argued that he did not have an excluded felony offense and did not knowingly falsify any information in his application. After taking the matter under advisement, the administrative law judge (“ALJ”) issued a decision recommending that DHS revoke Parsons’s registration card. The ALJ concluded that the AMMA does not permit granting a caregiver registration card to a person who has been convicted of a controlled substance felony. The ALJ also concluded that setting aside a conviction did not change the fact that Parsons was convicted of the felony. DHS’s director subsequently adopted the ALJ’s recommended decision. ¶ 9 Parsons moved for a rehearing. The director denied the motion and Parsons appealed to the superior court. After oral argument, the superior court affirmed the DHS director’s final order, adopting DHS’s arguments and finding that sufficient evidence supported it. Parsons timely appealed. DISCUSSION ¶ 10 Parsons argues that the superior court erred by affirming the DHS director’s final order upholding the revocation of Parsons’s caregiver card. The superior court’s review of an agency decision is limited to whether substantial evidence supports the agency’s decision and whether the decision is contrary to law, arbitrary and capricious, or an abuse of discretion. A.R.S. § 12-910(E). In reviewing the superior court’s ruling affirming an agency’s order, we “indepén-dently examine the record to determine whether the evidence supports the judgment,” under a preponderance of the evidence standard. Webb v. State ex rel Ariz. Bd. of Med. Exam’rs, 202 Ariz. 555, 557 ¶ 7, 48 P.3d 505, 507 (App. 2002); Ariz. Admin. Code. (“A.A.C.”) R2-19-119(A). Although we view the evidence in the light most favorable to upholding the agency’s decision, we are not bound by the agency’s or the superior court’s legal conclusions or statutory interpretations. JHass Grp. L.L.C. v. Ariz. Dep’t of Fin. Insts., 238 Ariz. 377, 383 ¶ 20, 360 P.3d 1029, 1035 (App. 2015). Because ineligibility for a caregiver registration card under the AMMA is not a penalty or disability released when a conviction is set aside, Parsons’s conviction is an excluded felony offense and is grounds for revocation of his caregiver registration card. ¶ 11 Parsons argues that DHS and the superior court erred by concluding that A.R.S. § 13-907 does not remove his ineligibility for caregiver registration pursuant to the AMMA. Our primary goal in interpreting a statute is to give effect to legislative intent. JHass Grp., 238 Ariz. at 384 ¶ 27, 360 P.3d at 1036. In doing so, we look to the statute’s plain language as the best indicator of that intent. Azore, LLC v. Bassett, 236 Ariz. 424, 427 ¶ 8, 341 P.3d 466, 469 (App. 2014). Further, we must construe the statute in context with other related provisions and its place in the statutory scheme. Hosea v. City of Phx. Fire Pension Bd., 224 Ariz. 245, 250 ¶ 23, 229 P.3d 257, 262 (App. 2010). When the statute’s language is clear and unambiguous, we must give effect to that language without employing other rules of statutory construction. In-dust. Comm’n of Ariz. v. Old Republic Ins. Co., 223 Ariz. 75, 77 ¶ 7, 219 P.3d 285, 287 (App. 2009). ¶ 12 In Arizona, a person convicted of a criminal offense may apply to have the judgment of guilt set aside upon completion of the sentence and discharge. A.R.S. § 13-907(A). This is a “special benefit conferred by statute” and subject to legislative control and limitations. State v. Hall, 234 Ariz. 374, 377 ¶ 11, 322 P.3d 191, 194 (App. 2014). If the court grants the person’s application, the court must “set aside the judgment of guilt, dismiss the accusations or information and order that the person be released from all penalties and disabilities resulting from the conviction.” A.R.S. § 13-907(C). However, the statute specifically excludes from release enumerated penalties and disabilities imposed by the Arizona Department of Transportation and the Arizona Department of Game and Fish. Id. The statute also clarifies that “the conviction may be used as a conviction if the conviction would be admissible had it not been set aside and may be pleaded and proved in any subsequent prosecution of such person by the state or any of its subdivisions for any offense.” Id. Thus, setting aside a judgment does not eliminate all consequences of a person’s criminal conviction under Arizona law, nor does it make the conviction a nullity. Hall, 234 Ariz. at 377 ¶ 11, 322 P.3d at 194. ¶ 13 For example, setting aside a judgment under A.R.S. § 13-907 does not erase or remove the fact of a conviction in Arizona. Russell v. Royal Maccabees Life Ins. Co., 193 Ariz. 464, 467 ¶ 15, 974 P.2d 443, 446 (App. 1998). A person whose felony conviction has been set aside under A.R.S. § 13-907 must still disclose it when asked if the person has ever been convicted of a felony. Id. at 470-71 ¶ 27, 974 P.2d at 449-50; see also In re Couser, 122 Ariz. 500, 501, 596 P.2d 26, 27 (1979) (concluding that setting aside a judgment relieves the offender from punishment that the law imposes for the crime but does not remove the fact that the offender committed the crime, meaning that the fact that the conviction was set aside cannot be used as a defense in a disciplinary proceeding); cf. A.R.S. § 13-907.01 (allowing a trial court to “vacate” a specific conviction, which in turn specifically allows the person convicted of it to “in all instances state that the person has never been arrested for, charged with, or convicted of the crime” in response to questions on applications). Because setting aside a conviction does not mean that the conviction ceases to exist, Parsons improperly failed to disclose the 2005 conviction in his caregiver registration application. ¶ 14 Parsons nevertheless argues that a requirement to disclose the conviction does not mean that DHS can use its existence as a reason to revoke his caregiver registration card. But DHS indeed can. The AMMA was enacted in 2010 as a voter initiative measure. State v. Gear, 239 Ariz. 343, 344 ¶ 2, 372 P.3d 287, 288 (2016). DHS facilitates and monitors the AMMA’s administration, and is tasked with governing how it considers applications for registry identification cards. A.R.S. §§ 36-2801(4), -2803(A)(3). Generally, the AMMA authorizes medical use of marijuana and immunizes qualified patients and designated caregivers from criminal prosecution in certain circumstances relating to the purchase and possession of marijuana. A.R.S. § 36-2811(B). A designated caregiver is a person who has agreed to assist with a qualified patient’s medical use of marijuana, A.R.S. § 36—2801(5)(b). To be a designated caregiver, the person must not have been convicted of an excluded felony offense, A.R.S. § 36-2801(5)(c). As relevant here, an “excluded felony offense” includes a violation of a controlled substance law that was classified as a felony. A.R.S. § 36-2801(7)(b). An offense that would otherwise be an excluded felony offense will not malee a person ineligible, however, if either of two exceptions apply: (1) the sentence or probation for that offense was completed ten or more years earlier or (2) the offense involved conduct that would be immune from arrest, prosecution or penalty under the AMMA but occurred before the AMMA’s effective date. A.R.S. § 36-2801(7)(b)(i), (ii). Regulations governing the AMMA’s administration require that DHS revoke a caregiver’s registration card if the person has been convicted of an excluded felony offense. A.A.C. § R9-17-206(E). ¶ 16 Particularly when considering the voters’ intent in enacting the AMMA, “our task is to apply the law they have written.” Reed-Kaliher v. Hoggatt, 235 Ariz. 361, 367 ¶ 25, 332 P.3d 587, 593 (App. 2014). Here, the voters have clearly written the AMMA in a way showing their intent to require consideration of the fact of a conviction for a controlled substance related felony in determining whether an applicant is eligible for a caregiver registration card. Specifically, the voters explicitly precluded those who violated a controlled substance law from having access to what is otherwise a controlled substance within ten years of that conviction. The AMMA does not treat those convictions differently based on whether they were set aside. Indeed, recognizing convictions for controlled substance violations as exceptions to the AMMA’s definition of “excluded felony offense” would read an exception into the definition that the voters did not make. See id. at 368 ¶81, 332 P,3d at 594 (“[Jjudges may [not] read exceptions into the law where none exist, thereby contravening the plain terms of the AMMA and usurping the legislative authority exercised by, and ultimately reserved for, the people.”). ¶ 16 Although A.R.S. § 13-907(C)’s plain language could support Parsons’s argument that ineligibility for receiving a caregiver registration card under the AMMA is a “disability,” see State v. Zaputil, 220 Ariz. 425, 428 ¶ 12, 207 P.3d 678, 681 (App. 2008) (defining “disability” as a legal incapacity or disqualification), the set aside statute specifically qualifies that a convicted felon is only released from the penalties and disabilities “resulting from the conviction.” Ineligibility for a license from a state agency is not a penalty or disability, but a measure designed to protect the public. See id. at 427 ¶ 13, 207 P.Sd at 681 (finding that a mandate to pay restitution is not a “penalty or disability” because its purpose is to make a victim whole again); see also Loughran v. Superior Ct. of Maricopa Cty., 145 Ariz, 56, 58, 699 P.2d 1287, 1289 (1985) (“The purpose of the revocation [of a driver’s license] is to protect tire public and not to punish the licensee.”); Ariz. Op. Att’y Gen. 178-181 (concluding that “penalties and disabilities resulting from a conviction” refers only to those “which are of kindred nature to criminal proceedings” and finding that examining the qualifications of potential licensees is not for the punishment of a licensee but for the public’s protection). Instead, the ineligibility under the AMMA is merely a collateral consequence of having been convicted of a felony related to controlled substance laws. As applied here, the fact that Parsons was convicted for possession of narcotics, which remains notwithstanding that the conviction was set aside, has the collateral consequence of making him ineligible to be a caregiver under the AMMA. ¶ 17 Parsons counters that this interpretation would render the enumerated exceptions to A.R.S. § 13-907(C) superfluous because no determinations of eligibility for licensing would ever be affected by A.R.S. § 13-907. However, all of the enumerated exceptions are direct punishments, not collateral conse quences, of certain types of criminal conduct. See, e.g., A.R.S. §§ 28-3304 (mandating revocation of a driver’s license upon conviction of certain vehicle-related crimes), -3306 (allowing discretionary suspension or revocation of a driver’s license or requirement of traffic survival school if a licensee commits certain driving-related conduct), -3308 (requiring suspension of a driver’s license if a licensee fails to appear to a traffic hearing). Thus, DHS may consider a person’s prior felony conviction for a controlled substance violation as grounds to deny or revoke a caregiver’s registration card, even if the conviction was set aside. Accordingly, because the record supports the finding that Parsons was convicted of possession of narcotic drugs for sale and that only six years had passed between his discharge from probation and the date of his application for a caregiver registration card under the AMMA, the superior court did not err by affirming DHS’s final order. CONCLUSION ¶ 18 For the foregoing reasons, we affirm. . Parsons also argues that insufficient evidence supports the conclusion that he knowingly violated the AMMA by attesting that he had not been convicted of an excluded felony because he believed that setting it aside meant that the conviction no longer existed. However, neither the ALJ, the Department director, nor the superior court made findings or conclusions on this issue. Therefore, we do not address this argument.

JUSTICE LOPEZ, opinion of the Court: ¶ 1 This case concerns the standards a trial court applies in granting a new trial or ordering remittitur or additur under Arizona Rule of Civil Procedure 59. Although a trial court should be circumspect when modifying a jury verdict, it nonetheless may do so if it states the Rule 69(a) or (i) grounds for the order and explains its ruling with sufficient particularity to avoid speculation as to its basis. BACKGROUND ¶ 2 This case arises from a motor vehicle accident, the salient facts of which are not in dispute. Michael Soto and his wife Julie (the “Sotos”) were passengers in a taxi cab driven by Anthony Sacco when it collided with another vehicle. The Sotos sued Sacco, Discount Enterprises Inc., and Total Transit, Inc. doing business as Discount Cab (collectively “Defendants”). Defendants admitted Sacco’s negligence and respondeat superior liability. A jury trial ensued to determine damages. ¶3 As a result of the accident, Michael sustained multiple fractures to his dominant arm and underwent surgery to permanently implant a plate and screws to stabilize it. The Sotos testified that Michael experienced significant pain and emotional distress since the accident, preventing him from participating in physical activities he previously enjoyed. Michael’s treating physician, however, placed no limitations on his activities and told him to use his arm normally, using pain as a guide when engaging in physical activity. Michael’s medical bills totaled $40,538.40, but he made no claim for future medical expenses or lost wages. ¶ 4 At trial, the Sotos urged the jury to award Michael $725,000 in damages. Defendants suggested an award between $90,000 and $120,000. After deliberating, the jury awarded $700,000 to Michael and $40,000 to Julie. Defendants then moved for a new trial, or to alter or amend the judgment, and for remittitur under Arizona Rule of Civil Procedure 59(a)(1), (5), (7) and (8), and Rule 59(i), requesting that Michael’s award be reduced to not more than $350,000. The trial court found that the jury verdict in favor of Michael “was excessive and not supported by the evidence,” and granted a remittitur pursuant to Rule 59(i), reducing Michael’s award to $250,000. The Sotos rejected the court’s remittitur and appealed from the new trial order that became effective after they declined the remittitur. ¶ 5 The court of appeals affirmed. Soto v. Sacco, 239 Ariz. 516, 372 P.3d 1040 (App. 2016). It rejected the Sotos’ argument that conditional grants of new trial under Rule 59(i) are subject to Rule 59(m), which requires the trial court to specify with particularity the ground(s) on which the new trial is granted. The court of appeals instead concluded that “Rule 69(i) does not require the trial court to specify the particulars in relation to which the verdict was excessive” and upheld the trial court’s remittitur, Soto, 239 Ariz. at 519 ¶ 12, 372 P.3d 1040, at 1043 (quoting Hancock v. Linsenmeyer, 15 Ariz. App. 296, 299, 488 P.2d 501 (1971)) (internal quotation marks omitted). The court determined that the trial court “could reasonably conclude that the award to Michael reflected ‘an exaggerated measurement of damages.’ ” Id. at 520 ¶ 14, 372 P.3d 1040, at 1044 (quoting In re Estate of Hanscome, 227 Ariz, 158, 162 ¶ 13, 254 P,3d 397, 401 (App. 2011)). ¶ 6 We granted review because the standards for ordering remittitur or additur or granting a new trial under Rule 59 present recurring issues of statewide importance, We have jurisdiction under article 6, section 5(3), of the Arizona Constitution and A.R.S, § 12-120.24. DISCUSSION I. Standard of Review Under Rule 59 ¶ 7 This case implicates the proper balance between a jury’s province to determine civil damages and the trial court’s authority under Rule 59 to modify a jury’s award. Because a jury plays a vital role in our civil justice system, a trial court may not simply substitute its judgment for the jury’s. State v. Fischer, 242 Ariz. 44, 50 ¶ 21, 392 P.3d 488, 494 (2017) (“We emphasize that the court does not usurp the role of the jury in granting a new trial because the court does not substitute its judgment for that of the jury; it only allows the parties a new trial before a different jury.”); cf. Tennant v. Peoria & Pekin Union Ry. Co,, 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520 (1944) (“Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.”). A trial court should be circumspect in interfering with a jury verdict by carefully and sparingly exercising its discretion to reduce or increase a jury’s damage award. See Fischer, 242 Ariz. 44 ¶ 11, 50 ¶ 19, 392 P.3d 488, at 492 (“Ati-zona courts use essentially the same standard in civil and criminal cases,” and “[a] trial court considering a motion for a new trial must respect the role of the jury and the integrity of the jury trial system.”); Creamer v. Troiano, 108 Ariz. 573, 576, 503 P.2d 794, 797 (1972) (“Almost always when there is a conflict in the evidence, the trial judge should not interfere with what is peculiarly the jury’s function.”). Such reticence preserves the jury’s important role and protects the right to a jury trial under article 2, section 23, of the Arizona Constitution. ¶ 8 Although we urge trial courts to sparingly exercise discretion in modifying a jury’s verdict, we recognize that a trial judge plays a role akin to a “thirteenth juror” (a ninth juror in a civil ease) when ruling on a motion for new trial, including motions based on excessive or insufficient damages. Fischer, 242 Ariz. at 49 ¶ 14, 50 ¶ 19, 392 P.3d at 493; see also Reeves v. Markle, 119 Ariz. 159, 163, 579 P.2d 1382, 1386 (1978) (“[The trial judge] has a special perspective of the relationship between the evidence and the verdict which cannot be recreated by a reviewing court from the printed record.”); Brownell v. Freedman, 39 Ariz. 385, 389, 6 P.2d 1115 (1932) (noting that a trial judge, as an extra juror, “must be convinced that the weight of the evidence sustains the verdict, or it is his imperative duty to set it aside”). A trial judge’s unique position is “the primary buffer against unjust verdicts,” and the trial judge “performs an indispensable function without which our system of justice could not hold out the promise of [a] uniform application of the law.” Reeves, 119 Ariz. at 163, 679 P.2d at 1386; see also Fischer, 242 Ariz. at 48 ¶ 12, 392 P.3d at 492. For this reason, we grant significant latitude to trial courts in ruling on new trial motions. Reeves, 119 Ariz. at 163, 579 P.2d at 1386 (“Whenever a new trial order is justified by any of the grounds cited in the order, an appellate court will not disturb the lower court’s exercise of its discretion.”). But a trial court should not disturb a jury’s damage award unless the judge is firmly convinced it is inadequate or excessive and is contrary to the weight of the evidence. See Creamer, 108 Ariz. at 576-77, 503 P.2d at 797-98. ¶ 9 If the trial judge finds that the damage award is tainted by “passion or prejudice,” or is “shockingly] or flagrantly outrageous,” remittitur is not an appropriate remedy. Hanscome, 227 Ariz. at 162 ¶ 13, 254 P.3d at 401 (quoting Stallcup v. Rathbun, 76 Ariz. 63, 65, 67, 258 P.2d 821 (1953)). Under those circumstances, the court must instead order a new trial. Id. When, as here, the verdict is neither the result of passion or prejudice nor shockingly outrageous, but “instead reflects an exaggerated measurement of damages,” “the trial court may exercise its discretion to order remittitur.” Id. (citation omitted). ¶ 10 In differentiating between the standard for a new trial, which requires a finding of “passion or prejudice” or a “shockingly or flagrantly outrageous” verdict, and the lower standard for remittitur, which requires an exaggerated measurement of damages not supported by the evidence, we break no new ground. We merely affirm our longstanding jurisprudence and remain in the majority of jurisdictions, including the United States Supreme Court, which permit remittitur of an excessive jury award absent a finding of “passion or prejudice” or a similarly heightened standard. II. Rule 59(m)’s Application to Rule 690) ¶ 11 We conclude that Rule 59(m) applies to Rule 59(i). Rule 59(i) permits a trial court to “grant the new trial conditionally,” and if the party against whom the remittitur is ordered refuses to accept it, a new trial is granted without further order. Rule 59(m) states that “[n]o order granting a new trial shall be made and entered unless the order specifies with particularity the ground or grounds on which the new trial is granted.” The trial court expressly recognized that Rule 59(m) applies to Rule 59(i) by specifically referring to Rule 59(m) in its ruling. The court of appeals, however, relying exclusively on Hancock, 15 Ariz.App. at 299, 488 P.2d 501, held that Rule 59(m) does not apply to a conditional new trial grant under Rule 59(i) because “Rule 59(i) is express as to the grounds.” Soto, 239 Ariz. at 519 ¶ 12, 372 P.3d at 1043. Hancock held that “Rule 59(i) does not require the tidal court to specify the particulars in relation to which the verdict was excessive.” 15 Ariz.App. at 299, 488 P.2d 501. ¶ 12 We reject the court of appeals’ and Hancock's interpretation of Rule 59(i) because it would allow the trial court to circumvent the Rule 59(m) particularity requirement when granting remittitur under Rule 59(i). This is particularly so because one of the identified grounds for a new trial under Rule 59 is “excessive” damages. Ariz. R. Civ. P. 59(a)(5). If a trial judge conditionally granted a new trial under Rule 59(i) without stating the grounds with particularity, and the party adversely affected by the reduction declined to accept the reduction, the new trial would be granted without the trial court providing the requisite Rule 59(m) particularity. Requiring particularity also advances transparency and aids parties’ and appellate courts’ review of the trial court’s decision. The stylistic change simplifying the language of Rule 59(i), effective January 1, 2017, comports with our conclusion that Rule 69(m) of the 2016 version applies to Rule 59(i). It requires that “any order granting a new trial or altering or amending a judgment” must state particularized grounds. Ariz. R. Civ. P. 59(i) (2017) (emphasis added). Accordingly, because we find Hancock's reasoning unpersuasive and its conclusion inconsistent with Rule 59 when read as a whole, we overrule Hancock and its progeny, and now clarify that Rule 59(m) applies to Rule 59(i) (and, thus, the 2017 version of Rule 59(i) applies to rulings that grant motions under revised Rule 59(f)). III. Particularity Requirement Under Rule 59(m) ¶ 13 Since shortly after Rule 59(m)’s adoption in 1954, our courts have endeavored to articulate a practical standard for determining when an order states sufficient facts and conclusions to satisfy the rule’s particularity requirement. In Yoo Thun Lim v. Crespin, 100 Ariz. 80, 83, 411 P.2d 809 (1966), we reasoned that particularity means “in a detail,” and instructed that mere recitation of the statutory grounds for a new trial in Rule 59(a) “manifestly” failed to satisfy Rule 59(m)’s particularity requirement. See also Rogers v. Mountain States Tel. & Tel. Co., 100 Ariz. 154, 163-64, 412 P.2d 272 (1966) (finding the trial court’s order that “the judgment was not justified by the evidence” failed to satisfy the Rule 59(m) particularity requirement); Pima County v. Bilby, 87 Ariz. 366, 373-74, 351 P.2d 647 (1960) (explaining that Rule 59(m)’s particularity requirement was not met where the specified grounds for remittitur were that “the verdict and judgment were contrary to the law and evidence”). We have followed Crespin’s instruction that Rule 59(m) requires greater particularity or detail than mere recitation of Rule 69(a)’s grounds, and we see no reason to jettison this approach. See, e.g., Reeves, 119 Ariz. at 163-64, 579 P.2d at 1386-67, By construing “particularity” as requiring the trial judge to describe why the jury award is too high or low, we respect the jury’s decision and allow for meaningful appellate review. ¶ 14 We further note that, although Rule 69(m) is “designed to insure that both parties and the appellate courts receive adequate notice of the grounds on which the trial court relied,” Reeves, 119 Ariz. at 164, 679 P.2d at 1887, it does not require the trial court “to render a written opinion setting forth [its] rationale for granting a new trial motion or to undertake a lengthy review of the facts.” Heaton v. Waters, 8 Ariz. App. 256, 259-60, 445 P.2d 458 (1968). Instead, Rule 59(m) requires only that a trial court’s order furnish sufficient detail to apprise the parties and appellate courts of the specific basis for the court’s ruling so that they may avoid speculation. Crespin, 100 Ariz. at 82-83, 411 P.2d 809 (noting that the trial court's new trial order did not comply with Rule 59(m) where it was based “on the grounds set forth in [the] motion for a new trial,” which merely was “couched in the language of the statutory grounds for a new trial”); see also Esplendido Apartments v. Metro. Condo. Ass’n of Ariz. II, 161 Ariz. 325, 330, 778 P.2d 1221, 1226 (1989) (finding Rule 59(m) is “satisfied when ‘both parties and the appellate courts receive adequate notice of the grounds on which the trial court relied’” (quoting Reeves, 119 Ariz. at 164, 579 P.2d at 1387)). ¶ 16 “The power of a judge to grant a new trial is the same regardless of the particularity of the language of the new trial order....” Reeves, 119 Ariz. at 164, 579 P.2d at 1387. When a trial court’s Rule 59 order fails to satisfy the Rule 59(m) particularity requirement, however, the burden shifts to the appellee to establish that the trial court did not err in granting a new trial, additur, or remittitur. Id. Thus, a trial court’s degree of specificity in explaining its ruling under Rule 59(m) determines the degree of deference afforded to its judgment on appellate review. If the trial court provides fact-specific reasons, sufficient to avoid speculation, to support its order of a conditional new trial or additur or remittitur on the grounds prescribed in Rule 59(a) and (i), then appellate courts will afford the trial court greater discretion and generally defer to its findings and ruling. Id. at 163, 579 P.2d at 1386. In that instance, the appellant would bear the burden of establishing that the trial court abused its discretion; it is not enough to show that reasonable evidence supported the jury’s verdict. Id. at 164, 579 P.2d at 1387; Santanello v. Cooper, 106 Ariz. 262, 264, 475 P.2d 246, 248 (1970). But if the trial court does not provide detailed reasons to support its ruling, our level of deference is reduced and “the appellee has the burden on appeal ‘to convince us that the trial court did not err in ordering a new trial.’ ” Reeves, 119 Ariz. at 164, 579 P.2d at 1387 (quoting Crespin, 100 Ariz. at 83, 411 P.2d 809). To satisfy its burden, the appellee must establish that the trial court’s order was supported by substantial evidence and did not constitute an abuse of discretion. Id. This burden-shifting paradigm should ineentivize moving parties to seek, and trial courts to provide, particularized grounds and detailed reasons for ordering a new trial, thus aiding appellate review. ¶ 16 In an effort to limit trial courts’ authority to grant remittitur to only the most extreme cases, the Sotos rely heavily on Ahmad v. State, 240 Ariz. 380, 385 ¶ 17, 379 P.3d 1011, 1016 (App. 2016), a wrongful death case in which the court of appeals overturned a trial court’s remittitur order that was “based solely on an unarticulated subjective concept of ‘reasonableness.’ ” The trial court in Ahmad, in granting remittitur, explained only that its ruling was “[b]ased upon the evidence presented at trial and the damages recoverable in this action.” Id. at 383 ¶ 7, 379 P.3d at 1014. The court of appeals found this an insufficient explanation of the trial court’s rationale, explaining that trial courts must identify “some palpable defect in the evidence or verdict” in granting a remittitur in wrongful death cases. Id. at 386 ¶ 17, 379 P.3d at 1016. ¶ 17 The Sotos urge us to apply Ahmad’s “palpable defect” standard here. Defendants contend that Ahmad is inapplicable because it involved a wrongful death action rather than a personal injury action. They reason that Ahmad, even if correct, applies only to special statutory considerations under the wrongful death statute, A.R.S. § 12-613, which provides that “[i]n an action for wrongful death, the jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover.” (emphasis added). ¶ 18 We find Ahmad’s reasoning unpersuasive for two reasons. First, the “palpable defect” standard is novel, vague, and inconsistent with the language and purpose of Rule 59. Cf. Reeves, 119 Ariz. at 164, 579 P.2d at 1387 (“We do not believe Rule 59(m) was intended to limit the discretion of a judge to order a new trial,”); see also Bilby, 87 Ariz. at 374, 351 P.2d 647 (concluding that failure to comply with Rule 59(m) does not require that the new trial motion be denied with prejudice and that the verdict and judgment be reinstated because “[s]uch a result is entirely unwarranted by the terms and purpose of the Rule”). Second, we reject the notion that § 12-613’s “fair and just” damages provision mandates greater deference to juries in wrongful death cases than in personal injury actions. The standard for remittitur is the same in wrongful death and personal injury cases. See, e.g., Alires v. S. Pac. Co., 100 Ariz. 6, 14, 409 P.2d 714 (1966) (holding that the trial court “did not exceed its judicial discretion in finding that the damages ordered by the jury were excessive” and ordering remittitur in a wrongful death action); cf. Begay v. City of Tucson, 148 Ariz. 505, 507, 715 P.2d 758, 760 (1986) (suggesting no difference between personal injury and wrongful death cases concerning the trial court’s consideration of a motion for new trial based on insufficient damages). ¶ 19 We perceive no relevant distinction between a jury’s duty to render a “fair and just” damages award in a wrongful death action and its charge to issue an award based upon its “good sense and unbiased judgment” in a personal injury case. See Meyer v. Ricklick, 99 Ariz. 356, 357-58, 409 P.2d 280 (1966) (noting that in a personal injury action, the “law does not fix precise rules for the measure of damages but leaves their assessment to a jury’s good sense and unbiased judgment”). The legislature’s codification of the “fair and just” standard in the wrongful death statute does not alter our conclusion. Summerfield v. Superior Court, 144 Ariz. 467, 472, 698 P.2d 712, 717 (1985) (“The phrase[ ] ‘such damages as are fair and just,’ ... (A.R.S. § 12-613) invite[s] the court to participate in construing the statutes and setting the parameters of the action.”). To hold otherwise would imply that jurors may act less fairly and justly in personal injury cases or that they need not act fairly and justly at all, an untenable proposition. Rule 59, which does not require a “palpable defect” in the evidence or verdict, applies uniformly to wrongful death and personal injury actions. IV. Remittitur of the Jury’s Damage Award ¶ 20 In this case, the trial judge stated in his remittitur order that the jury verdict “was excessive and not supported by the evidence.” See Ariz. R. Civ. P. 59(a)(5), (8). As explained, Rule 59(m) requires the court to provide greater particularity than the “ground or grounds on which the new trial is warranted” under Rule 59(a). Although the trial judge clearly provided the Rule 59(a) and (i) grounds upon which he ordered remittitur, “excessive” damages and “not supported by the evidence,” his order failed to provide any basis for the conclusion. Although Rule 59(m) does not require the trial court to render a written opinion or provide a lengthy review of the facts underlying the relevant Rule 59(a) grounds, the court must provide sufficient detail to support its ruling and to eliminate speculation on appellate review. The trial court’s finding that the award “was excessive and not supported by the evidence” fails to satisfy this standard. Accordingly, the burden shifts to Defendants to convince us that the trial court did not err in ordering a new trial or remitti-tur. ¶21 Here, like the court of appeals, we conclude that Defendants carried their burden of establishing that the trial court’s re-mittitur and new trial order is supported by substantial evidence and is not an abuse of discretion. Although Michael endured serious injury, rehabilitation, and attendant emotional distress, he did not present a claim for future expenses or other economic loss. On this record, the trial court could have reasonably concluded that the jury verdict was excessive, and we will not disturb its ruling. V. Comparable Verdict Evidence ¶ 22 Defendants also presented information regarding jury verdicts in cases involving individuals close in age to Michael who suffered similar fractures, These similar cases support Defendants’ contention that the damage award was excessive. Cf. Desert Palm Surgical Grp., P.L.C. v. Petta, 236 Ariz. 568, 583-84 ¶¶ 43-44, 343 P.3d 438, 453-54 (App. 2015) (finding that the damage award was not supported where it could not be reconciled with other Arizona civil jury verdicts). Although courts may consider comparable verdict evidence in attempting to establish that a particular verdict is excessive, we caution that cases may be unique and turn on fact-intensive determinations, and juries may view similar cases differently. Cf. Palenkas v. Beaumont Hosp., 432 Mich. 527, 443 N.W.2d 354, 358 (1989) (explaining that while a comparison of jury awards in analogous cases “cannot serve as an exact indicator, it does provide an objective means of determining the range of appropriate awards in such cases”). Thus, while such comparable verdict information may be presented to and considered by the trial court, we emphasize that it is only marginally relevant and the trial court should not treat other damage awards as conclusive in assessing whether the jury made a just award. Defendants’ presentation of such information, on this record, does not alter our conclusion that the trial court acted within its discretion in ordering remittitur. VI. Constitutionality of Remittitur ¶23 The Sotos also argue that the trial court’s remittitur and subsequent new trial order violate Michael’s constitutional right to a jury trial under article 2, section 23, of the Arizona Constitution. We disagree. The Arizona Constitution protects only the right to a jury trial as it existed before statehood. Derendal v. Griffith, 209 Ariz. 416, 419 ¶ 8, 104 P.3d 147, 150 (2005). A trial court’s discretionary authority to order addi-tur, remittitur, or a new trial was well established before statehood, and nothing suggests that article 2, section 23, modified that authority. See, e.g., S. Pac. Co. v. Tomlinson, 4 Ariz. 126, 132, 33 P. 710 (1893) (“A trial court has the power, where excessive damages have been allowed by the jury, and where the motion to set aside the verdict is based upon this ground, to make a remission a condition precedent to overruling the motion.”), rev’d on other grounds, 163 U.S. 369, 16 S.Ct. 1171, 41 L.Ed. 193 (1896); see also Gila Valley Globe & N. Ry. Co. v. Hall, 13 Ariz. 270, 276, 112 P. 845 (1911). Thus, although article 2, section 23, guarantees the right to a jury trial in certain cases, it does not guarantee the right to an undisturbed jury verdict, free from review by trial or appellate courts. Alabam Freight Lines v. Thevenot, 68 Ariz. 260, 267, 204 P.2d 1050 (1949) (rejecting argument that remittitur violates article 2, section 23, of the Arizona Constitution). In any event, the tidal court ordered a new trial after the Sotos refused to accept the remittitur, thus preserving their right to a jury trial. DISPOSITION ¶ 24 We vacate the court of appeals’ opinion, affirm the trial court’s order conditionally granting a new trial, and remand the case to the trial court for further proceedings consistent with this opinion. . For purposes of this case, we refer to the 2016 version of Rule 59, which was amended in 2017. Rule 59(i) of the 2016 version, relating to motions for additur or remittitur, is now Rule 59(f), and what was Rule 59(m) is now part of Rule 59(i) in the 2017 version. . See, e.g., Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 424-25, 438, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (A state statute authorizing remittitur where a jury award "deviates materially” from reasonable compensation does not violate the Seventh Amendment right to a jury trial.); Garhart ex rel. Tinsman v. Columbia/HealthOne, LHC, 95 P.3d 571, 582 (Colo. 2004) ("In Colorado, a court may exercise its power of remittitur by setting aside a verdict in a personal injury case if the award is either grossly and manifestly excessive or inadequate."); Odom v. Roberts, 606 So.2d 114, 118 (Miss. 1992) ("[If a court] ‘Ends that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence,' a motion for a new trial still may be overruled upon condition of additur or remittitur.") (quoting Mississippi statute); Drummond v. Mid-West Growers Co-op. Corp., 91 Nev. 698, 542 P.2d 198, 207 (1975) ("[T]he 'right to a jury trial' does not mean that an error committed by a jury may not be corrected, merely because the vehicle of correcting such error was not known or practiced at common law when Nevada's Constitution was adopted.”); Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 880 N.E.2d 420, 431 ¶ 38 (2007) ("[Cjourts have the inherent authority to order remittiturs to reduce jury awards when they deem the amount to be excessive based on the facts found by the jury.”); Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986) ("Factual sufficiency is the sole remittitur standard for actual damages.”); Powers v. Allstate Ins. Co., 10 Wis.2d 78, 102 N.W.2d 393, 400 (1960) (‘‘[W]here an excessive verdict is not due to perversity or prejudice, and is not the result of error occurring during the course of trial, the plaintiff should be granted the option of remitting the excess over and above such sum as the court shall determine is the reasonable amount of plaintiff's damages, or of having a new trial on the issue of damages.”). But see, e.g., Kabel v. Brady, 519 So.2d 912, 920 (Ala. 1987)("A re-mittitur or a new trial should not be ordered on the grounds of excessiveness of the jury’s verdict unless the court can determine that the verdict was reached on account of bias, passion, prejudice, corruption, or other improper motive.”). . We intend the following analysis to govern the particularity requirement of current Rule 59(i). . A jury may render a zero damages award under the wrongful death statute if it deems such an award "fair and just” because, unlike a common-law negligence claim, damages are not an essential element of a statutory wrongful death claim. Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, 196 ¶ 9, 273 P.3d 64S, 648 (2012). This distinction is not relevant here.

JUSTICE TIMMER, opinion of the Court: ¶ 1 The law implies a warranty of workmanship and habitability into every residential construction contract. This Court has wrestled with application of this warranty on several occasions. We reenter the fray and here decide whether the successful party on a claim for breach of the warranty qualifies for an attorney-fee award under either a contractual fee provision or AR.S. § 12-341.01. Because the warranty is imputed into the construction contract, it is a term of the contract. Any claim for breach of that term arises from the contract, The successful party therefore qualifies for fees under a controlling contractual fee provision or, barring that, § 12-341.01. BACKGROUND ¶ 2 Wayne and Jacqueline Wunderlich contracted with Sirrah Enterprises, LLC to build “a basement through exterior walls” at the Wunderlichs’ home. Sirrah performed the work. The Wunderlichs partially paid Sirrah but refused to pay the full contract amount, claiming construction defects. ¶3 Sirrah sued for the unpaid contract amount. The Wunderlichs counterclaimed for breach of the implied warranty of workmanship and habitability (the “Implied Warranty” or “Warranty”) and other claims. A jury found in Sirrah’s favor on its claim and awarded it $31,374. The jury further found in Sirrah’s favor on the Wunderlichs’ claims for breach of contract and breach of the covenant of good faith and fair dealing. But the jury found in the Wunderlichs’ favor on their claim for breach of the Implied Warranty and awarded them $297,782. ¶4 The trial court determined that the Wunderlichs were the prevailing parties and awarded them attorney fees pursuant to a contractual fee provision and § 12-341.01. The court of appeals affirmed the award as authorized by the contractual fee provision. Sirrah Enters., LLC v. Wunderlich, 240 Ariz. 163, 171 ¶ 26, 377 P.3d 360 (App. 2016). (The court variously stated that § 12-341.01 did and did not apply here, but ultimately rested its decision on the contractual fee provision. Id. at 168-69 ¶¶ 11, 16, 171 ¶ 24, 377 P.3d 360.) ¶ 6 We granted review because the recovery of fees under a contractual fee provision or § 12-341.01 for an Implied Warranty claim is a recurring legal issue of statewide importance. This Court has jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24. DISCUSSION ¶ 6 The parties’ contract provides that if either party “is required to retain the services of an attorney to enforce any term or provision of this Agreement, the prevailing party shall be entitled to and the losing party shall pay all expenses and costs including reasonable attorney’s fees incurred by the prevailing party.” Sirrah argues that the Implied Warranty was not a “term or provision” of the contract but was imposed by law regardless of the contract’s existence, and therefore the Wunderlichs’ success on only their warranty claim did not trigger the fee provision. The Wunderlichs respond, and the trial and appellate courts agreed, that the law imputed the Implied Warranty into the parties’ contract, making the Warranty a “term or provision” of the contract, and fees were properly awarded. See Sirrah, 240 Ariz. at 167-68 ¶¶ 9, 12, 377 P.3d 360. ¶ 7 We review de novo the courts’ interpretation of the parties’ contractual fee provision as applying to Implied Warranty claims. See Murphy Farrell Dev., LLLP v. Sourant, 229 Ariz. 124, 133 ¶ 31, 272 P.3d 356 (App. 2012). I. The Implied Warranty is a contract term ¶ 8 Under the Implied Warranty, a residential builder warrants that its work is performed in a workmanlike manner and that the structure is habitable. See Lofts at Fillmore Condo. Ass’n v. Reliance Commercial Constr., Inc. (Lofts), 218 Ariz. 574, 575 ¶ 5, 190 P.3d 733, 734 (2008). The Warranty “is imposed by law” and serves “to protect innocent purchasers and hold builders accountable for their work.” Richards v. Powercraft Homes, Inc., 139 Ariz. 242, 244-45, 678 P.2d 427, 429-30 (1984) (citation and internal quotation marks omitted). A homeowner is not required to have privity of contract with the builder to sue it for breach of the Implied Warranty. See Lofts, 218 Ariz. at 577 ¶ 15, 190 P.3d at 736; Richards, 139 Ariz. at 245, 678 P.2d at 430. Rather, the Implied Warranty “arises from construction of the home,” and therefore runs to subsequent purchasers. Lofts, 218 Ariz. at 577 ¶¶ 13-14, 190 P.3d at 736 (reasoning that Richards and other cases “make clear that an implied warranty arises from construction of the home, without regard to the identity of the vendor”). ¶ 9 Sirrah argues that because the Implied Warranty “arises from construction of the home,” it neither constitutes a contract term nor arises from a contract. We disagree. ¶ 10 Woodward v. Chirco Construction Co., Inc., 141 Ariz. 514, 687 P.2d 1269 (1984), directs our decision. The homebuilder there, Chirco Construction, argued that the six-year statute of limitations applicable for contract claims, A.R.S. § 12—548(A), did not apply to preserve the purchasing homeowners’ claim for breach of the Implied Warranty. Id. at 515-16, 687 P.2d at 1270-71. Relying on Richards’s pronouncement that the Implied Warranty “is imposed by law,” Chirco Construction asserted that the Warranty could not arise from the parties’ contract and, even if it did, breach of the Warranty only created a tort claim. Id. at 515, 687 P.2d at 1270. This Court disagreed. We decided that negligent construction of a residence can simultaneously support contract damages for breach of the Implied Warranty and tort damages for any personal injury or damaged personal property caused by the contractor’s negligence. Id. at 515—16, 687 P.2d at 1270-71. The Court recognized that the Implied Warranty “arises from the contractual relation between the builder and the purchaser.” Id. at 516, 687 P.2d at 1271 (citation and internal quotation marks omitted). Significantly, we also clarified Richards: Our statement in Richards, supra, that the implied warranty of workmanlike performance and habitability “is imposed by law” was not meant to transform the duty arising out of the contract into one based on tort principles alone; instead, it was meant to inform buyers and sellers that the law imputes the warranty into the contact for the construction and sale of the residence. We then held that the warranty runs to subsequent purchasers of the residence. If the warranty did not arise out of the contract and provide for a cause of action in contract, we would have had no cause to be concerned about the absence of privity between Richards and Powercraft Homes, Inc, Id. The Court concluded that the court of appeals properly applied the six-year statute of limitations to the Implied Warranty claim at issue. Id ¶ 11 In Lofts, the Court did not retreat from its position in Woodward that the Implied Warranty is imputed into a construction contract and runs to subsequent purchasers. Indeed, the Court cited Woodward for the principle that “[a] claim for breach of the implied warranty sounds in contract.” Lofts, 218 Ariz. at 575 ¶ 5, 190 P.3d at 734. Also consistent with Woodward, the Court held that a subsequent homebuyer who lacked contractual privity with a non-vendor builder could nevertheless sue the builder for breach of the Warranty. See id. at 577-78 ¶¶ 13-19, 190 P.3d at 736-37. The only reason for addressing privity was because the Court treated the Implied Warranty as a contract term. ¶ 12 Finally, since deciding Lofts, we have reiterated Woodward’s characterization of the Implied Warranty as a contract term. See Sullivan v. Pulte Home Corp. (Sullivan II), 232 Ariz. 344, 346 ¶ 13, 306 P.3d 1, 3 (2013) (“[The] law imputes [the] warranty into [a] construction contract and allows subsequent purchasers a cause of action.” (citing Woodward, 141 Ariz. at 516, 687 P.2d at 1271)). We again confirm that description here. II. Barmat does not apply ¶ 13 Citing Barmat v. John & Jane Doe Partners A-D, 155 Ariz. 519, 747 P.2d 1218 (1987), Sirrah argues that because the Implied Warranty is imposed by law, breach of the Warranty cannot give rise to a contract-based fee award. We disagree. ¶ 14 Barmat addressed whether a legal malpractice claim “arises out of a contract” for purposes of awarding fees under § 12-341.01(A). Id. at 520, 747 P.2d at 1219. The clients there argued that § 12-341.01(A) applied because the law implies a contract between lawyer and client, which includes a covenant of competent and ethical representation. Id. at 521, 747 P.2d at 1220. After noting that the law implies contracts in several professional relationships and some nonprofessional ones, such as innkeeper-guest and common carrier-passenger, the Court concluded that the legislature did not intend § 12-841.01(A) to reach tort claims arising from these relationships. Id. ¶ 15 The Court labeled a contract implied in law as a “legal fiction,” id. at 522, 747 P.2d at 1221, created “without regard to expressions of assent by either words or acts,” id. at 521, 747 P.2d at 1220 (citation and internal quotation marks omitted). Such contracts “aris[e] from relationships between professionals and their clients and from other special relationships” and “the law imposes special duties [owed] to all within the foreseeable range of harm as a matter of public policy.” Id. at 522, 747 P.2d at 1221. Because “[t]he essential nature of actions to recover for the breach of such duties” is one arising from tort rather than contract, § 12-341.01(A) does not apply. Id. at 523, 747 P.2d at 1222. ¶ 16 Barmat does not apply here. First, breach of the Implied Warranty is a contract claim, not a tort claim. See Woodward, 141 Ariz. at 515-16, 687 P.2d at 1270-71; cf. A.R.S. § 12-552(A), (C) (providing a statute of repose for suits “based in contract” including “any action based on implied warranty arising out of the contract or the construction, including implied warranties of habitability, fitness or workmanship”). Bar-mat applies to determine whether a tort claim arising from a relationship characterized by an implied-in-law contract can authorize a fee award; it does not apply to contract claims. ¶17 Second, Barmat did not address whether § 12-341.01(A) authorizes fees on a claim for breach of a duty imputed by law as a term of an express contract. Rather, the case concerned the proper interpretation of “implied contract” as used in § 12-341.01(A). Barmat, 155 Ariz. at 522, 747 P.2d at 1222 (“[T]he oft-used statutory phrase ‘contract express or implied’ has no single meaning and ‘requires interpretation and definition.’ ” (citation omitted)). And Barmat did not suggest that fees are unavailable on claims for breach of an implied-in-law term of an express contract. Cf. id. (approving decision in Sparks v. Republic Nat'l Life Ins. Co., 132 Ariz. 629, 647 P.2d 1127 (1982), that claim for breach of the implied-in-law covenant of good faith and fair dealing imputed into an insurance contract “arises out of a contract” under § 12-341.01(A)). ¶ 18 Third, the Implied Warranty does not arise from a professional relationship or other special relationship like those discussed in Barmat. Although implied by law, the Warranty is imputed into an express contract for home construction. See Woodward, 141 Ariz. at 516, 687 P.2d at 1271. As with the duty of good faith and fair dealing, also imputed by law into all express contracts, the Warranty is “as much a part of a contract as are the express terms.” See Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr. Fund, 201 Ariz. 474, 490 ¶ 59, 38 P.3d 12, 28 (2002). ¶ 19 The court of appeals has taken a different standpoint on Barmat’s impact on claims for breach of the Implied Warranty. In Sullivan v. Pulte Home Corp. (Sullivan I), 231 Ariz. 53, 62 ¶ 48, 290 P.3d 446, 455 (App. 2012), vacated in part on other grounds, 232 Ariz. 344, 306 P.3d 1 (2013), the court found that because Barmat decided that § 12-341.01(A) does not apply to implied-in-law contracts, and the Implied Warranty is implied by law, § 12-341,01(A) does not apply to Implied Warranty claims. See also N. Peak Constr., LLC v. Architecture Plus, Ltd., 227 Ariz. 165, 167, ¶ 7, 170 ¶ 26, 254 P.3d 404 (App. 2011) (applying the same analysis to deny a fee award on a claim for breach of an implied warranty of reasonable skill and diligence given by a design professional to a construction contractor). In the case now before us, the court of appeals reaffirmed the Sullivan I analysis but distinguished that case because, unlike the situation here, the builder and homeowners in Sullivan I lacked privity of contract. Sirrah, 240 Ariz. at 168 ¶¶ 14-15, 377 P.3d 360. ¶ 20 The flaw in the coui-t of appeals’ analysis is that the Implied Warranty does not create an implied-in-law contract between a builder and a homeowner. See id. ¶ 14 (describing the Sullivan I homeowners’ claim for breach of the Implied Warranty as “based solely on a contract implied-in-law”). The Warranty is a term imputed by law into an express contract and can be enforced by subsequent homeowners. See Woodward, 141 Ariz. at 516, 687 P.2d at 1271. Section 12-341.01(A) therefore authorizes a fee award for the successful party on a claim for breach of the Implied Warranty because the claim “arises out of’ an express contract. ¶ 21 We disapprove Sullivan I and North Peak Construction, LLC to the extent they conflict with our decision. ¶ 22 Sirrah asserts that our stance will result in dissimilar treatment of attorney fee applications depending on whether the claim for breach of the Implied Warranty was brought by an original or subsequent homeowner. Not so. Section 12-341.01(A) does not have a privity requirement for claims “arising out of’ a contract. (In contrast, the parties must be in privity to enforce a contractual fee provision.) Cf. Lacer v. Navajo Cty., 141 Ariz. 392, 394, 687 P.2d 400 (App. 1984) (determining a party was entitled to fees "if judgment in its favor is based upon the absence of the contract sued upon”). The Implied Warranty arises out of the construction contract; that characteristic does not change simply because the law effectively assigns the Warranty to subsequent homeowners. Just as a claim asserted by an original homeowner in privity with a builder can arise from contract, so too can a claim asserted by a subsequent homeowner. III. The propriety of fees on review ¶23 We agree with the court of appeals that the trial court properly awarded attorney fees to the Wunderlichs. The parties’ contract requires a fee award to the successful party on a claim “to enforce any term or provision.” Section 12-341.01(A), a discretionary fee provision, does not alter the parties’ mandatory fee provision. See A.R.S. § 12-341.01(A) (stating that the provision “shall not be construed as altering, prohibiting or restricting present or future contracts ... that may provide for attorney fees”). As we have stated, the Implied Warranty is a term of the contract. As the successful party in the claim to enforce the Warranty, the Wunder-lichs were entitled to their reasonable attorney fees. The trial court did not err in awarding them fees. CONCLUSION ¶ 24 We vacate the court of appeals’ opinion and affirm the trial court judgment. Upon compliance with ARCAP 21(b), we award the Wunderlichs their reasonable attorney fees on appeal.

OPINION HOWE, Judge: ¶ 1 This appeal is from a trial court order holding that interest on a $7.8 million judgment against the State shall accrue pursuant to A.R.S. § 41-622(F), which allows for accrual at a lower interest rate than the statutory rate during an appeal of a judgment paid out of the Risk Management Revolving Fund. Diana Glazer, to whom that judgment was awarded, argued that the reduced interest rate should not apply because the judgment was originally paid out of the Construction Insurance Fund. The State argued that the lower interest rate should apply because although it initially made payment from the Construction Insurance Fund due to an administrative error, once the State recognized the error, it rectified the error by reimbursing the Construction Insurance Fund from the Risk Management Revolving Fund. ¶ 2 Because the judgment against the State was ultimately paid out of the Risk Management Revolving Fund, the trial court did not err by applying the reduced interest rate described in A.R.S. § 41-622(F) for the duration of the appeal. However, because the State’s insurance carrier will reimburse the State for $800,000 of that judgment, the reduced interest rate applies only to $7 million of the judgment. Accordingly, we affirm the trial court’s order that A.R.S. § 41-622(F) applies, but reverse the order’s application of the statute to the entire judgment. FACTS AND PROCEDURAL HISTORY ¶ 3 In 2007, Glazer was seriously injured in a head-on, crossover collision with another vehicle on Interstate 10 that killed her husband and young daughter. Glazer sued the State, which designed and maintained the interstate, for negligence in failing to construct a median between the westbound and eastbound lanes to prevent crossover collisions. After a nine-day jury trial, the jury awarded Glazer a verdict of $7.8 million. ¶ 4 Glazer subsequently lodged her proposed form of judgment, which provided for “interest at the legal rate of prime plus one percent (currently 4.25%) per annum” from the date of the jury’s verdict until paid in full. The State objected, arguing that the proposed judgment did not account for the possibility that a lower interest rate could apply while the case was pending appeal. Although the legal interest rate normally applies, A.R.S. § 41-622(F) allows interest to accrue at a reduced rate during appeal for judgments paid from the Risk Management Revolving Fund. Glazer agreed, responding that the interest rate during the time of an appeal may be at a reduced rate, “but only so long as the Judgment is ultimately paid out of the ‘Risk Management Revolving Fund.’ If the Judgment is ultimately paid from elsewhere, [the legal rate] remains applicable.” However, the trial court entered the judgment against the State with interest to accrue at the legal rate. ¶ 5 The State then moved to amend the court’s judgment, arguing again that it improperly failed to account for a reduced interest rate on the judgment while the case was appealed. Glazer objected, arguing that the court could not issue an order on “possibilities,” and that the reduced rate would apply only after the State paid the judgment and proved that the monies came from the Risk Management Revolving Fund. The trial court granted the State’s motion and subsequently entered an amended judgment providing that “A.R.S. § 41-622(F) may supplant the normal statutory interest rate during the pendency of an appeal.” ¶ 6 After the trial court entered its amended judgment, the State appealed on issues unrelated to the interest rate. When this Court affirmed the trial court’s judgment, the State petitioned for review to the Arizona Supreme Court. That court also affirmed the trial court’s judgment and issued its mandate in the summer of 2015. Accordingly, the Arizona Department of Administration’s (“Department”) risk management section began to process the payment of the judgment. The State is self-insured up to $7 million, meaning that the State pays for judgments against it out of its own funds up to that amount. Anything over that amount is covered by an excess insurance policy with the State’s insurance carrier. Because amounts above $7 million are paid for through reimbursements from the insurance carrier, the Department generated a “risk management payment request” for each of three installments totaling the entire $7.8 million judgment. Each of those requests reflected that the loss type was “GEN-CIF,” a designation made for general liability losses that arise from claims relating to a roadway’s design. The loss type code does not instruct which account payment should come from though, so the requests must also include an account code. Each of the three requests for the Glazer payments reflected the payment account number of the Risk Management Revolving Fund. ¶7 A Department adjuster approved the requests on May 14, 2015, and forwarded them for further approval by two other authorized supervisors. After receiving the additional approvals, the requests were sent to a financial services technician for processing. Upon receiving the requests, the technician noticed the “GEN-CIF” loss type. Interpreting “CIF” to mean that the payment should come from the Construction Insurance Fund, the technician changed the payment account number from the Risk Management Revolving Fund to that of the Construction Insurance Fund. This was the last recorded change to the requests and was made without approval from any of the authorized adjusters or supervisors that had previously approved the requests. Three days later, the Department issued three checks to satisfy the judgment. The Department realized the payment error two months later in July 2015. To rectify it, a Department risk manager transferred $7.8 million from the Risk Management Revolving Fund to the Construction Insurance Fund to reimburse it. ¶ 8 In August 2015, Glazer requested a status conference to determine the applicable interest rate on the judgment, stating that the parties disagreed on whether the legal or the reduced rate applied. Specifically, the State argued that the reduced rate should apply because it corrected its mistake and transferred the debt to the proper account. Glazer argued that the higher rate applied because the State failed to prove that it paid the judgment out of the Risk Management Revolving Fund. Glazer also argued that even if A.R.S. § 41-622(F) applied, the statute’s purpose of saving the State money would not be served because the insurance carrier—not the State—would pay the total interest through the excess insurance policy. Glazer also requested an evidentiary hearing on the issue. ¶ 9 Before the evidentiary hearing, Glazer moved for summary judgment, arguing that because the State issued the check to pay the judgment from the Construction Insurance Fund, not the Risk Management Revolving Fund, A.R.S. § 41-622(F) did not apply. The State cross-moved for summary judgment, positing that because the Construction Insurance Fund is not a permissible source for paying judgments like the one awarded in this ease and the funds ultimately came from the Risk Management Revolving Fund, A.R.S. § 41-622(F) applied to the judgment. After the evidentiary hearing, the trial court issued its ruling, agreeing with the State that A.R.S. § 41-622(F) applied to the $7.8 million judgment because the funds used to pay that judgment ultimately came from the Risk Management Revolving Fund. The trial court found that the original payment from the Construction Insurance Fund was an accounting mistake caused by the unauthorized change by the technician. The court consequently ordered that “the interest accruing on Plaintiffs’ $7.8 million Judgment shall be paid at [the reduced rate] during the course of Defendant’s appeal.” Glazer timely appealed from that order. DISCUSSION ¶ 10 Glazer argues that the trial court erred by holding that A.R.S. § 41-622(F) applies because the judgment was paid from the Construction Insurance Fund. Alternatively, Glazer argues that the trial court erred by holding that the reduced interest rate applied to the entire $7.8 million judgment because the State paid only $7 million of that amount. We review questions of statutory interpretation de novo as questions of law. City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, 178 ¶ 5, 181 P.3d 219, 225 (App. 2008). Because the State paid the judgment against it out of the Risk Management Revolving Fund, the lower interest rate prescribed by A.R.S. § 41-622(F) applies for the duration of the case’s appeal. However, because the State’s insurance carrier will pay $800,000 of the judgment, the reduced interest rate applies only to the $7 million paid by the State from the Risk Management Revolving Fund. ¶ 11 Our primary goal in interpreting a statute is to give effect to legislative intent. JHass Grp. L.L.C. v. Ariz. Dep’t of Fin. Insts., 238 Ariz. 377, 384 ¶ 27, 360 P.3d 1029, 1036 (App. 2015). In doing so, we look to the statute’s plain language as the best indicator of that intent. Azore, LLC v. Bassett, 236 Ariz. 424, 427 ¶ 8, 341 P.3d 466, 469 (App. 2014). Further, we must construe the statute in context with other related provisions and its place in the statutory scheme. Hosea v. City of Phx. Fire Pension Bd., 224 Ariz. 245, 250 ¶ 23, 229 P.3d 257, 262 (App. 2010). When the statute’s language is clear and unambiguous, we must give effect to that language without employing other rules of statutory construction. Indust. Comm’n of Ariz. v. Old Republic Ins. Co., 223 Ariz. 75, 77 ¶ 7, 219 P.3d 285, 287 (App. 2009). ¶ 12 Arizona statutes govern the interest rates applicable to judgments. For most judgments, A.R.S. § 44-1201(B) requires that, unless otherwise provided for by a different statute or in a written agreement, interest on any judgment be “the lesser of ten per cent per annum or at a rate per annum that is equal to one per cent plus the prime rate” as published by the federal reserve system. For certain judgments against the State however, A.R.S. § 41-622(F) provides for a different interest rate: “Interest on any judgment against this state paid for out of the risk management revolving fund shall accrue at the average yield offered by the United States treasury bills during the course of the appeal.” This is usually a reduced rate. ¶ 13 The trial court correctly concluded that A.R.S. § 41-622(F) applies and interest therefore accrued at the lower interest rate during the course of the appeal. The statute’s language is clear: any judgment against the State that is paid for out of the Risk Management Revolving Fund shall accrue interest at the reduced rate. See Minjares v. State, 223 Ariz. 54, 62-63 ¶¶ 37-41, 219 P.3d 264, 272-73 (App. 2009) (examining A.R.S. § 41-622’s plain language and legislative history). The statute does not require that the checks issued to pay the judgment be issued from the Risk Management Revolving Fund. Nor does the statute require that the judgment be originally paid from that fund. See id. at 63 ¶ 41, 219 P.3d at 273 (stating that “the legislature clearly intended that when a judgment against the State would be paid from, the Risk Management Revolving Fund, the normal statutory rate would not apply if there was an appeal”) (emphasis added). Instead, A.R.S. § 41-622(F) plainly states that if the Risk Management Revolving Fund pays for a judgment against the State, that judgment accrues interest at a lower rate pending appeal. ¶ 14 Here, although the funds to satisfy the judgment originally came out of the Construction Insurance Fund, the judgment against the State was ultimately paid out from the Risk Management Revolving Fund. The payment requests had been generated and approved by three supervisors with the account payment code for the Risk Management Revolving Fund. Without authorization, a technician changed the code to that of the Construction Insurance Fund. This was the last documented change to the payment requests before the State issued the checks to Glazer. Approximately two months later, the Department became aware of the error and corrected it by transferring the debt to the account to which it had originally been coded. Had the Department risk manager not transferred the funds to the Construction Insurance Fund and the debt to the Risk Management Revolving Fund, the former would have been the account that paid the judgment. However, that was not the case here. Despite the accounting error, the judgment against the State was paid for out of the Risk Management Revolving Fund. ¶ 15 Glazer argues that the statute cannot apply because the interest due is an insured loss that will be paid by the State’s excess insurance coverage. However, who will pay for the accrued interest has no effect on what rate that interest will accrue at. This is particularly so here, where A.R.S. § 41-622(F)’s application depends only on the type of judgment and source of its payment, not on the interest due. Thus, AR.S. § 41-622(F)’s requirements are met and the trial court did not err by applying the lower interest rate for the duration of the appeal. ¶ 16 The court erred, however, by applying the reduced interest rate to the entire $7.8 million judgment. The State will ultimately pay only $7 million of the judgment out of the Risk Management Revolving Fund. The State’s insurer will reimburse the State for the balance of its obligation. Thus, because the judgment that the State paid out of the Risk Management Revolving Fund totals $7 million, only that amount accrued interest at the rate pursuant to A.R.S. § 41-622(F). The remaining $800,000 of the judgment will be paid by the State’s insurer and does not qualify for the reduced interest rate. The State argues that the reduced interest rate should apply to the entire judgment because the statute’s language does not make exceptions for amounts covered by excess insurance coverage. However, the limiting language is within the statute, which allows application only for “any judgment ... paid for out of the risk management revolving fund.” The insurance carrier will not pay out of that fund, so the statute does not apply to that amount. We therefore remand to the trial court to modify its ruling consistent with this decision and to impose the proper interest rate on the balance of the judgment. CONCLUSION ¶ 17 For the foregoing reasons, we affirm the trial court’s ruling that AR.S. § 41-622(F) applies, but only to the $7 million paid for by the State. We remand to the trial court to enter a corrected order consistent with this decision. . See Daily Treasury Bill Rates Data, U.S. Dep't of the Treasury, available at https://www. treasury.gov/resource-center/data-chart-center/ interestrates/Pages/TextView.aspx?data=billrates (last visited May 10, 2017).

JUSTICE BRUTINEL, opinion of the Court: ¶ 1 Arizona Revised Statute § 3-1261 (B) provides that no two brands of the same design or figure shall be adopted or recorded. Nonetheless, the Arizona Department of Agriculture (“Department”) allowed Eureka Springs to record a “bar seven” brand (—7), even though it was identical to a previously recorded brand owned by David Stambaugh, because it was placed on a different location on the animals. We hold that the plain language of the statute precludes the Department from recording “two brands of the same design or figure” regardless of their location. I. BACKGROUND ¶ 2 Eureka Springs planned to move its bar-seven branded cattle from California to Arizona. Rather than re-brand the cattle, it applied to the Department to use the bar seven brand in Atizona, Stambaugh had previously recorded an identical brand in Arizona. Eureka Springs’ cattle, however, are branded on their left rib, and Stambaugh’s cattle are branded on their left hip. Because the brands are identical, the Department’s brand clerk twice rejected Eureka Springs’ application but was eventually overruled by her supervisors. Because the brands were placed on different locations on the cattle, the Department approved Eureka Springs’ brand. ¶ 3 When the Department publicly advertised Eureka Springs’ request to record its brand pursuant to A.R.S. § S—1261(C), Stam-baugh filed a protest. The Department rejected the protest and issued a certificate to Eureka Springs approving and recording its bar seven brand applied to the left rib. ¶ 4 Stambaugh sued the Department, and both parties moved for summary judgment. The superior court granted the Department’s motion in part, explaining that “A.R.S. § 3-1261 and related statutes give the [Department] and its employees discretion, as a matter of law, to consider the location of a brand on an animal in determining whether two brands are of the same design or figure.” The superior court remanded the matter to the Department to conduct an administrative hearing on the brand and the protest. ¶ 5 The court of appeals affirmed, holding that A.R.S. § 3-1261(B) is ambiguous. Stambaugh v. Butler, 240 Ariz. 363, 366 ¶ 11, 368 ¶ 18, 379 P.3d 260 (App. 2016). Because the brands are in separate locations, the court reasoned they are not identical, and the Department therefore did not violate § 3-1261 when it approved Eureka Springs’ brand. See id. at 367 ¶ 14, 379 P.3d 260. One judge dissented, reasoning that the phrase “design or figure” is unambiguous and “excludes consideration of placement; both ‘design’ and ‘figure’ are defined to include only a pattern, shape, or pictorial representation.” Id. at 358 ¶ 20, 379 P.3d 260 (Jones, J., dissenting). ¶ 6 We granted review because this case presents an issue of statewide importance that is likely to recur. We have jurisdiction pursuant to article 6, section 5(3), of the Arizona Constitution and A.R.S. § 12-120.24. II. DISCUSSION A. Standard of Review ¶ 7 We review the interpretation of statutes de novo. Wade v. Ariz. St. Ret. Sys., 241 Ariz. 559, 561 ¶ 10, 390 P.3d 799, 801 (2017). “Our primary goal is to effectuate the legislature’s intent.” Id. “If the statute is subject to only one reasonable interpretation, we apply it without further analysis.” Id. (citation omitted). Words in statutes should be read in context in determining their meaning. See J.D. v. Hegyi, 236 Ariz. 39, 40-41 ¶ 6, 335 P.3d 1118, 1119-20 (2014). In construing a specific provision, we look to the statute as a whole and we may also consider statutes that are in pari materia—of the same subject or general purpose—for guidance and to give effect to all of the provisions involved. See David C. v. Alexis S., 240 Ariz. 53, 55 ¶ 9, 375 P.3d 945, 947 (2016). B. A.R.S. § 3-126KB) is unambiguous and does not include location. ¶ 8 Section 3-1261(B) states, “No two brands of the same design or figure shall be adopted or recorded, but the associate director may, in his discretion, reject and refuse to record a brand or mark similar to or conflicting with a previously adopted and recorded brand or mark.” ¶9 The court of appeals majority determined that the statute is ambiguous and held that it was within the Department’s discretion to consider a proposed brand’s location on an animal to decide if it was the same “design or figure” as an already recorded brand. Stambaugh, 240 Ariz. at 356-58 ¶¶ 11-17, 379 P.3d 250. We disagree. The statutory language, when considered in context and in relation to the statutory scheme, is unambiguous and does not refer to the location of the brand. ¶ 10 We start with the statutory language. Because the statute does not define “design or figure” we use the common meaning of those words. See State v. Pena, 235 Ariz. 277, 279 ¶ 6, 331 P.3d 412, 414 (2014). “Design” is defined as “[a] drawing or sketch”; “[a] graphic representation, especially a detailed plan for construction or manufacture”; and “[a]n ornamental pattern.” Design, American Heritage Dictionary of the English Language 491 (5th ed. 2011). “Figure” is defined as “[a] written or printed symbol representing something other than a letter, especially a number”; “[t]he outline, form, or silhouette of a thing”; and “[a] pictorial or sculptural representation, especially of the human body.” Figure, American Heritage Dictionary of the English Language 656 (5th ed. 2011). Based on these definitions, the phrase “no two brands of the same design or figure” does not refer to location as part of its meaning. ¶ 11 We next look to the statute as a whole to determine whether the provision is subject to more than one reasonable interpretation. The Department, citing State v. Sweet, 143 Ariz. 266, 269, 693 P.2d 921, 924 (1985), posits that a statute may be found to be ambiguous if there is uncertainty concerning the meaning of its terms or its scope when all its provisions are examined. But here, the remaining provisions of the statute confirm that subsection (B) can only reasonably be interpreted as barring the recording of two brands of the same design or figure, even in different locations. ¶ 12 Subsection (G) of the statute provides, “It is unlawful to apply a recorded brand in any location on an animal except as specified on the brand registration certificate. The application of a brand in any other location is the equivalent of the use of an unrecorded brand.” A.R.S. § 3-126RG). Subsection (G) recognizes a distinction between a brand and its location as specified on the registration. Reading “design or figure” to incorporate location would conflate that distinction. ¶ 13 The Department unconvincingly argues otherwise. The Department contends that subsection (G) requires this Court to interpret a brand’s design or figure as including its proposed location. But subsections (B) and (G) serve different functions. Subsection (B) refers to adopting and recording a brand. Adopting and recording a brand is the province of the Department, and thus (B) governs the exercise of the Department’s authority. Subsection (G), on the other hand, refers to applying a recorded brand. Although the Department records brands, the livestock owner applies them, and the owner, not the Department, is subject to criminal liability for a misapplication. Subsection (G) is a directive to the livestock owners, not the Department. The limitation on brand placement by the owner in subsection (G) does not expand the limitation on the Department’s authority to approve designs or figures under subsection (B). ¶ 14 Additionally, if location were included in “design or figure,” the second sentence of subsection (G) would be superfluous. See City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 552 ¶ 31, 105 P.3d 1163, 1171 (2005) (“Whenever possible, we do not interpret statutes in such a manner as to render a clause superfluous.”). If the Department’s interpretation were correct, placing a brand in a location other than the one specified on the certificate would not be “the equivalent of the use of an unrecorded brand”—it would be an unrecorded brand. Thus, this language in (G) would be unnecessary. Equating a misapplied brand to an unrecorded brand, rather, serves the purpose of putting ranchers on notice that placing a brand in a location other than the one specified leads to the same criminal consequences as using an unrecorded brand. See A.R.S. § 3-1269(A) (“A person who knowingly brands livestock with an unrecorded ... brand is guilty of a class 3 misdemeanor.”). ¶ 15 The court of appeals reasoned that “location” should be read into subsection (B) because the surrounding subsections reference location. Stambaugh, 240 Ariz. at 356 ¶ 12, 379 P.3d 250. But under traditional methods of statutory interpretation, the opposite is true—the fact that the legislature intentionally used the word “location” in other parts of the statute and omitted it from subsection (B) suggests that location was not meant to be part of subsection (B). City of Flagstaff v. Mangum, 164 Ariz. 395, 398, 793 P.2d 548, 651 (1990) (“Where the legislature uses a term within one statute and excludes it from another, the term usually will not be read into the provision from which it was excluded.”). ¶ 16 In addition to the language of § 3-1261 itself, the statutory scheme otherwise indicates that “design or figure” does not encompass location. A related statute, A.R.S. § 3-1262(A), which regulates the recording of brands and earmarks, reflects that a brand’s location is distinct from its design or figure. Section 3-1262(A) states in pertinent part: Recording shall consist of depicting a facsimile of the brand adopted, and a diagram of the earmarks, together with an entry of the name, residence, telephone number and post office address of the person adopting the brand and earmarks, the date recorded, the place upon the livestock or other animals where the brand is proposed to be used, the kind of animals upon which the brand and earmark are proposed to be used, and a general designation and statement of the location of the range whereon such animals are permitted to range. A.R.S. § 3-1262(A) (emphasis added). If “location” was included in “design or figure,” there would be no need to separate out the depiction of “a facsimile of the brand,” which must have a unique “design or figure,” from “the place upon the livestock or other animals where the brand is proposed to be used.” ¶ 17 Because the meaning of § 3-1261(B) is plain, based on the statute as a whole and its context within the statutory scheme, we do not resort to other canons of statutory interpretation. See State v. Christian, 205 Ariz. 64, 66 ¶ 6, 66 P.3d 1241, 1243 (2003). The statute clearly provides that a brand with an identical design or figure may not be recorded. ¶ 18 Nonetheless, we address several additional arguments asserting the ambiguity of the statute. The Department argues that when subsection (B) grants it “discretion to refuse to record a brand that is similar to a previously recorded brand, the statute necessarily also gives [the Department] discretion to record a brand that it determines is similar to, but sufficiently distinguishable from, a previously recorded brand to fulfill” the purposes of § 3-1261 in identifying livestock ownership and preventing livestock theft. The Department asserts that this grant of discretion also allows it to record an identical brand sufficiently distinguishable because of its location. But even if we accept the Department’s contention that this language allows it to approve similar brands, because neither “design” nor “figure” refers to location, approval of an identical design in a different location is not “similar”; it is the same, in violation of the statute. ¶ 19 Contrary to the Department’s argument, reading “design or figure” to not include location does not render other provisions within A.R.S. § 3-1261 moot. Mandating the location serves other useful functions. As Stambaugh argued, “[Exclusive brand designs serve to identify the owner of the brand, while monitoring the location of these brands assists the [Department] with identifying problematic brands, which may be unique in design but lead to misidentification.” ¶20 Furthermore, location can also serve as protection against theft. Requiring ranchers to specify the location of their brands makes it more difficult for a thief to modify or replace a valid brand because the thief must pass what effectively is a two-prong security test: a matching design and a matching location. Even if the thief is able to modify one brand design into another, it must still be in the required location. Additionally, specifying the location of the brand helps the Department and other ranchers know where to look to be able to quickly identify an animal’s owner. In other words, the location requirement serves valuable functions without being part of the “design or figure” of the brand itself. C. Deference to Agency Interpretation. ¶ 21 The Department argues that we should defer to its interpretation of the statute based on its expertise. Because the legislature has directly and clearly spoken to the question at issue, this Court owes no deference to the Department’s interpretation. See Wade, 241 Ariz. at 563 ¶ 21, 390 P.3d at 803 (refusing to give weight to an agency’s interpretation of a statute within its expertise when the legislature explicitly addressed the matter at issue and this Court was “able to ascertain legislative intent by applying interpretive principles”). ¶ 22 We note, however, that contrary to the court of appeals’ assertion, giving the statute its plain meaning is unlikely to result in mass confusion in the cattle industry. See Stambaugh, 240 Ariz. at 357 ¶ 16 n.5, 379 P.3d 250 (expressing concern that not reading location into “design or figure” might invalidate hundreds of brands). At oral argument, we questioned the parties at length about the Department’s practices. Despite the Department’s claim of its “longstanding interpretation,” it could find only thirty-two instances of duplicate brands out of 10,000 registered brands. Further, there was no written policy at the time relevant here, and during the time period when there was a written policy, it forbade identical brands. ¶ 23 The Department’s policy manuals from 1992 to 1998 state, “NO identical brands are accepted for recording.” (emphasis in original). The manuals also read, “We do not record a brand which conflicts with a recorded brand. This is a brand which resembles a recorded brand or could, with slight changes, be changed into that brand, especially if on the same side of the animal.” (emphasis added). According to its own manuals, the Department’s policy did not even allow for similar looking (let alone identical) brands on the same side of the animal. Rejecting identical brands in different locations is unlikely to result in revocation of large numbers of existing brands. III. CONCLUSION ¶ 24 We hold that AR.S. § 3-1261(B) is unambiguous and precludes the Department from adopting or recording identical brands. We reverse the superior court’s judgment and vacate the court of appeals’ opinion. We remand to the superior court with instructions to grant summary judgment in favor of Stambaugh. Stambaugh is awarded his reasonable attorney fees incurred in this Court pursuant to A.R.S. § 12-2030, upon compliance with ARCAP 21.

JUSTICE BOLICK, opinion of the Court: ¶ 1 In this case involving substantial consequences for alleged violations of campaign finance laws, we hold that due process does not permit the same individual to issue the initial decision finding violations and ordering remedies, participate personally in the prosecution of the case before an administrative law judge (“ALJ”), and then make the final agency decision that will receive only deferential judicial review. I. BACKGROUND ¶ 2 On June 27, 2013, acting pursuant to AR.S. § 16-924(A) (2011) repealed by 2016 Ariz. Sess. Laws, ch. 79, § 10 (2d Reg. Sess.), Arizona Secretary of State Ken Bennett determined that there was reasonable cause to believe that Attorney General Thomas Horne, Kathleen Winn, who served as Community Outreach Director of the Attorney General’s Office, and two campaign committees (collectively “Appellants”) had violated Arizona campaign finance laws, specifically A.R.S. §§ 16-901(14), -905, -913, -915, -917, and -919, The Secretary accordingly notified Solicitor General Robert L. Ellman, who appointed Sheila Polk as Special Arizona Attorney General because the Attorney General and one of his staffers were subjects of the notice, and “an appearance of impropriety would arise if the Arizona Attorney General's Office investigated the alleged campaign finance violation.” ¶3 Following investigation, pursuant to AR.S. § 16-924(A), Polk issued a twenty-five-page order finding that Appellants had violated Arizona campaign finance statutes by illegally coordinating campaign expenditures, exceeding contribution limits, and collecting illegal contributions. Polk directed Appellants to amend them campaign finance reports and ordered Horne and his campaign to refund contributions totaling approximately $397,000. The order stated that if the Appellants fa£ed to take the specified actions within twenty days, “this Office will issue an Order Assessing a Civil Penalty pursuant to A.R.S. § 16-924(B). The violation of the contribution limit carries a civil penalty of three times the amount of money of the violation. A.R.S. § 16-905(J).” ¶ 4 Appellants requested an administrative hearing pursuant to AR.S. § 16-924(A). After a three-day evidentiary hearing, the ALJ issued a decision finding that Polk had failed to prove illegal coordination and recommending that Polk vacate her compliance order. ¶ 5 Pursuant to AR.S. § 41-1092.08(B) (2000), Polk issued her final administrative decision, which rejected the ALJ recommendation and affirmed her prior compliance order. Polk accepted all of the ALJ’s findings of fact and rejected in part the ALJ’s conclusions of law. ¶ 6 Appellants appealed to the Maricopa County Superior Court, challenging Polk’s decision and the constitutionality of Arizona’s campaign contribution limits. Neither side requested an evidentiary hearing. The court affirmed Polk’s decision, finding that substantial evidence supported it and rejecting challenges to the statutory scheme. ¶7 Appellants appealed to the court of appeals. Polk’s answering brief acknowledged a fact previously unknown to Appellants: “Admittedly, the Yavapai County Attorney was involved with the prosecution of the case, by assisting with the preparation and strategy.” Appellants argued that Polk’s role as advocate and adjudicator violated their due process rights. ¶ 8 The court of appeals affirmed the superior court, concluding that “[bjecause there was evidence in the record supporting Polk’s finding that Horne and Winn coordinated ..., we find no abuse of discretion.” Home v. Polk, 1 CA-CV 14-0837, at *5 ¶ 12, 2016 WL 706376 (Ariz. App. Peb. 23, 2016). The court rejected Appellants’ due process claim, relying on Comeau v. Arizona State Board of Dental Examiners, 196 Ariz. 102, 108 ¶ 26, 993 P.2d 1066, 1072 (App. 1999) (“An agency is permitted to combine some functions of investigation, prosecution, and adjudication unless actual bias or partiality is shown.”). Home, 1 CA-CV 14-0837, at *6-6 ¶ 13. The court concluded, “In this ease, appellants make no showing of actual bias. Accordingly, their due process rights were not violated.” Id, at *6 ¶ 13. ¶9 We granted review of the due process issue, which is of statewide importance and likely to recur. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and AR.S. § 12-120.24. Because we consider only the constitutionality of the procedure under which Appellants’ statutory violations were determined, our review is de novo. Gallardo v. State, 236 Ariz. 84, 87 ¶ 8, 336 P.3d 717, 720 (2014). II. DISCUSSION A. Statutory Scheme ¶ 10 Arizona’s Administrative Procedure Act (“APA”), title 41, chapter 6, is generally silent about how agency charges or complaints are initiated. In the context of campaign finance violations, § 16-924(A) prescribes that where there is “reasonable cause to believe that a person is violating any provision of this title” in connection with a statewide office, the “secretary of state shall notify the attorney general.” The Attorney General, in turn, “may serve on the person an order requiring compliance with that provision. The order shall state with reasonable particularity the nature of the violation and shall require compliance within twenty days from the date of issuance of the order.” Id. ¶ 11 Section 16-924(A) further provides that the alleged violator has twenty days to request a hearing pursuant to the APA, for which administrative adjudication procedures are set forth in A.R.S. § 41-1092 et seq. Once the ALJ issues a decision, “the head of the agency, executive director, board or commission may review the decision and accept, reject or modify it.” A.R.S. § 41-1092.08(B). Where an agency has a board or commission whose members are appointed by the governor, it “may review the decision of the agency head ... and make the final administrative decision.” A.R.S. § 41-1092.08(0). ¶ 12 Ordinarily, nothing in the APA would necessitate having an agency head make both an initial and final legal determination. Here, the interplay between the campaign finance statute and the APA placed Polk in the position of issuing the initial order and then making the final determination. She also participated in the prosecution of the case before the ALJ. And under these circumstances, there was no board or commission to review Polk’s final decision. ¶ 13 An aggrieved party may appeal an adverse agency decision to the superior court, but the court’s review is deferential. Section 12-910(E) provides that the court “shall affirm the agency action unless after reviewing the administrative record and supplementing evidence presented at the eviden-tiary hearing the court concludes that the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion.” The court affirms the agency’s factual findings if they are supported by substantial evidence, “even if the record also supports a different conclusion.” Gaveck v. Ariz. State Bd. of Podiatry Exam’rs, 222 Ariz. 433, 436 ¶ 11, 215 P.3d 1114, 1117 (App. 2009). B. Due Process ¶ 14 Combining prosecutorial and adjudicative functions in the same agency official gives rise to due process concerns. A single agency may investigate, prosecute, and adjudicate cases, and an agency head may generally supervise agency staff who are involved in those functions. See, e.g., Withrow v. Larkin, 421 U.S. 35, 53, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) (“administrative agency [can] investigate facts, institute proceedings, and then make the necessary adjudications”). However, where an agency head makes an initial determination of a legal violation, participates materially in prosecuting the case, and makes the final agency decision, the combination of functions in a single official violates an individual’s Fourteenth Amendment due process right to a neutral adjudication in appearance and reality. That due process violation is magnified where the agency’s final determination is subject only to deferential review. ¶ 15 The general parameters for due process are set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). There, the United States Supreme Court held that the constitutional sufficiency of administrative procedures is determined by three factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335, 96 S.Ct. 893. ¶ 16 In this context, where the government seeks repayment of substantial campaign contributions that the private parties contend were legal (and, indeed, constitutionally protected), due process requires a neutral decisionmaker. Although Appellants have not alleged actual bias, once an official determines that a legal violation has occurred, that official can be expected to develop a will to win at subsequent levels of adjudication. At minimum, in the context of a regulatory agency adjudication, a process that involves the same official as both an advocate and the ultimate administrative decisionmaker creates an appearance of potential bias. See, e.g., Botsko v. Davenport Civil Rights Comm’n, 774 N.W.2d 841, 849 (Iowa 2009) (“[T]he primary purpose of separating prosecutorial from adjudicative functions” in an administrative agency “is to screen the decisionmaker from those who have a ‘will to win.’ ”). On the other hand, barring an agency head who makes an ultimate decision from having even general supervisory authority over agency employees involved in the prosecution of a case would unduly hamper agency operations. Due process will be satisfied if the agency head who serves as the ultimate adjudicator does not also serve in an advocacy role in the agency proceedings. ¶ 17 The right to a neutral adjudicator has long been recognized as a component of a fair process. One cannot both participate in a case (for instance, as a prosecutor) and then decide the case. Blackstone observed that a judge must not rule in a cause in which he is a party, “because it is unreasonable that any man should determine his own quarrel.” Am. Gen. Ins. Co. v. Fed Trade Comm’n, 689 F.2d 462, 463 (9th Cir. 1979) (quoting Blackstone, Commentaries on the Laws of England, I, 91). In In re Murchison, 349 U.S. 133, 136, 76 S.Ct. 623, 99 L.Ed. 942 (1966), the United States Supreme Court recognized the due process principle that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.” Murchison entailed a “one-man grand jury,” in which a judge acting as a grand jury charged two witnesses with perjury and then convicted them, which the Court held violated due process. Id. at 133-34, 75 S.Ct. 623. Because the judge was “part of the accusatory process,” he “cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused.” Id. at 137, 75 S.Ct. 623. “Fairness of course requires an absence of actual bias in the trial of eases. But our system of law has always endeavored to prevent even the probability of unfairness.” Id. at 136, 75 S.Ct. 623; accord Marshall v. Jerrico, Inc., 446 U.S. 238, 243, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980) (“[Jjustice must satisfy the appearance of justice, and this stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.” (internal citation and quotation marks omitted)). The process was impermissibly tainted by the judge performing both prosecution and adjudication functions. ¶ 18 The Court in Withrow, 421 U.S. at 46, 95 S.Ct. 1456, applied those principles to the administrative context. There, a state licensing board notified a physician that it would commence an investigative proceeding to consider possible violations of his medical license. Id. at 37-39, 95 S.Ct. 1456. The physician challenged the board’s combined investigatory and adjudicatory functions as a due process violation. Id at 39, 95 S.Ct. 1456. The Court noted that although “situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable,” the “contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden,” given “the presumption of honesty and integrity.” Id. at 47, 95 S.Ct. 1456. ¶ 19 The Court distinguished Murchison on the basis that there “the judge in effect became part of the prosecution and assumed an adversary position,” and observed that Murchison did not stand for the “broad rule that the members of an administrative agency may not investigate the facts, institute proceedings, and then make the necessary adjudications.” Id. at 53, 95 S.Ct. 1456. The Court noted that an “initial charge or determination of probable cause and the ultimate adjudication have different bases and purposes,” thus the same agency may perform both functions. Id. at 58, 95 S.Ct. 1456. However, the Court cautioned, “[t]hat the combination of investigative and adjudicative functions does not, without more, constitute a due process violation, does not, of course, preclude a court from determining from the special facts and circumstances present in the case before it that the risk of unfairness is intolerably high.” Id. ¶ 20 Here, the combination of prosecutorial and adjudicative functions not just in a single agency but in the same official presents “special facts and circumstances” creating an intolerable risk of unfairness. The initial determination of a legal violation here was not akin to a judge finding probable cause to proceed to trial and then reaching a final decision after an adversarial process in which the judge was not an advocate. Rather, under the statutory scheme, the Secretary of State made the probable cause finding. Polk then commenced investigation and issued a lengthy decision finding a legal violation and ordering compliance, which would have been a final determination had Appellants not appealed. In the subsequent ALJ proceeding, Polk admittedly “was involved with the prosecution of the case, by assisting with the preparation and strategy.” Thereafter, she issued a final administrative determination affirming her prior order and rejecting most of the ALJ’s conclusions of law. So we have here not only a single agency performing accusatory, advocacy, and adjudicatory functions, but the same individual performing all three functions. As Withrow characterized the circumstances in Murchison, “the judge in effect became part of the prosecution and assumed an adversary position.” Withrow, 421 U.S. at 53, 95 S.Ct. 1456. Beyond even that, Polk was in the position to affirm the very determination and order that she initially issued. See also id. (describing denial of due process where judge could rely on his own “[personal] knowledge and impression ... that could not be tested by adequate cross-examination” (internal quotation marks omitted)). ¶21 Other decisions further inform our analysis. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust, 608 U.S. 602, 113 S.Ct. 2264, 124 L,Ed.2d 539 (1993), pertains to pension plans, but its reasoning applies here. The federal statutory scheme entailed an adjudication of withdrawal liability by pension trustees, who have a fiduciary duty to the integrity of the pension plans, but the Court concluded that sufficient safeguards were present to ensure due process. Id. at 619-20, 113 S.Ct. 2264. The initial liability determination was made by the trustees, who “act only in an enforcement capacity,” id. at 619, 113 S.Ct. 2264, and whose decision was reviewed by a neutral arbitrator applying a preponderance of the evidence standard. Id. at 611, 113 S.Ct. 2264. “Where an initial determination is made by a party acting in an enforcement capacity,” the Court ruled, “due process may be satisfied by providing for a neutral adjudicator to conduct a de novo review of all factual and legal issues.” Id. at 618, 113 S.Ct. 2264 (internal quotation marks omitted). By contrast, “[c]learly, if the initial view of the facts based on the evidence derived from nonadversarial processes as a practical or legal matter foreclosed fair and effective consideration at a subsequent adversary hearing leading to ultimate decision, a substantial due process question would be raised.” Withrow, 421 U.S. at 58, 95 S.Ct. 1456. ¶ 22 Here the initial determination was subject to de novo review by the ALJ, but the ALJ’s determination was not final. Rather, the initial decisionmaker returned to make the final decision. “Even appeal and a trial de novo will not cure a failure to provide a neutral and detached adjudicator.” Concrete Pipe, 508 U.S. at 618, 113 S.Ct. 2264. The superior court review available from the final agency decision here falls far short of that. ¶ 23 More recently, in Williams v. Pennsylvania, — U.S. -, 136 S.Ct. 1899, 1908-09, 195 L.Ed,2d 132 (2016), the Court found a defendant’s due process rights were violated when a prosecutor who approved the decision to seek the death penalty later served as a supreme court justice in a habeas petition arising from the same crime. “Of particular relevance to the instant case, the Court has determined that an unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator in a case.” Id. at 1905. Where “a prosecutor who participates in a major adversary decision” or “a judge has served as an advocate for the State in the very case the court is now asked to adjudicate,” a serious question arises concerning whether the adjudica tor, despite best efforts, could untether from his or her previous position and render a fair judgment. Id, at 1906. Here, the fact that Polk “had a direct, personal role in the [Appellants’] prosecution,” id., likewise violates due process. ¶ 24 The reasoning of the Williams dissenters also supports our conclusion. Chief Justice Roberts distinguished the basis for the due process violation in Murchison, where “the judge (sitting as grand jury) accused the witnesses of contempt, and then (sitting as judge) presided over their trial on that charge.” Id. at 1913 (Roberts, C.J., dissenting). In Williams, by contrast, it was “abundantly clear” that the justice “had not made up his mind about either the contested evidence or the legal issues under review,” because he had not “previously made any decision with respect to that evidence in his role as prosecutor.” Id. at 1914. Likewise, Justice Thomas observed in Williams that “[b]roadly speaking, Murchison’s rule constitutional-izes the early American statutes requiring disqualification when a single person acts as both counsel and judge in a single civil or criminal proceeding.” Id. at 1920 (Thomas, J., dissenting). He emphasized that a due process violation occurs only where the “same person ... aet[s] as counsel and adjudicator in the same case.” Id at 1919 (highlighting the separation between the original decision to approve the request to seek the death penalty and the current civil proceeding regarding timeliness of a stay action). In this ease, Polk made her views on the evidence and legal issues very clear in her initial twenty-five-page order, and she subsequently affirmed that very order in the same case after participating in the prosecution. ¶ 25 These cases instruct that the combination of accusatory, advocacy, and adjudicative roles in a single agency official violates due process. Other courts have followed that instruction. Synthesizing the eases as we have, the Iowa Supreme Court held in Bot-sko that the conduct of the civil rights commission’s director in advocating on behalf of the complainant and then participating in the commission’s closed adjudicatory proceeding violated due process. 774 N.W.2d at 849-50. Therein, the court articulated the applicable constitutional boundaries. Applying Withrow, it concluded that “there is no due process violation based solely upon the overlapping investigatory and adjudicatory roles of agency actors.” Id. at 849. “A more serious problem, however, is posed where the same person within an agency performs both prosecutorial and adjudicative roles.” Id.", see also Am. Gen., 589 F.2d at 464-65 (the order “is infected with invalidity” because a commissioner participated as counsel in earlier proceedings, even though that participation may have been “superficial rather than substantial”); Trans World Airlines, Inc. v. Civil Aeronautics Bd., 254 F.2d 90, 91 (D.C. Cir. 1958) (“The fundamental requirements of fairness ... require at least that one who participates in a case on behalf of any party, whether actively or merely formally by being on pleadings or briefs, take no part in the decision of that case.”); Nightlife Partners, Ltd. v. City of Beverly Hills, 108 Cal.App.4th 81, 133 Cal.Rptr.2d 234, 248 (2003) (observing that combination of investigatory and adjudicatory functions is “fraught” with problems, especially where “these dual functions were not held by different sections of a single office, but by a single individual”). ¶ 26 Arizona jurisprudence is consistent with those authorities. In ComeaM, a doctor retained by the board investigated the complaint, then made statements and asked questions before the administrative panel, but “was not on the panel and did not participate in the discussion that preceded the panel’s findings and recommendations.” 196 Ariz. at 108 ¶ 27, 993 P.2d at 1072. In Rouse v. Scottsdale Unified School District No. 48, 156 Ariz. 369, 371, 752 P.2d 22, 24 (App. 1987), the court stated that “[t]he precise question in this case is whether simply joining investigative/prosecutorial and adjudicative functions results in a partial decision maker. We hold that it does not.” To the extent that these functions are combined in a single agency, we agree that the potential for bias is not intolerable; if they are performed by the same individual, they violate due process. Cf. Taylor v. Ariz. Law Enf. Merit Syst. Council, 152 Ariz. 200, 206, 731 P.2d 95, 101 (App. 1986) (“A conflict of interest would clearly arise if the same assistant attorney general participated as an advocate before the council and simultaneously served as an advisor to the council in the same matter.”). In Rouse, the termination decision at issue was initiated by the staff, not the board that rendered the final decision; and “the board, at the time of the hearing, had little more than ‘mere familiarity with the facts.’ ” 156 Ariz. at 373, 752 P.2d at 26. Under such circumstances, the defendant still had a neutral adjudicator. ¶ 27 We hold that due process does not allow the same person to serve as an accuser, advocate, and final decisionmaker in an agency adjudication. This holding should not unnecessarily impede the efficient and effective functioning of administrative agencies. As noted, in most instances, agencies are free under Arizona law to generate their own processes regarding initiation, investigation, and prosecution of charges or complaints. The agency head may supervise personnel involved in such functions; but if she makes the final agency decision, she must be isolated from advocacy functions and strategic prosecutorial decisionmaking and must supervise personnel involved in those functions in an arms-length fashion. See, e.g., Lyness v. Pa. State Bd. of Med., 529 Pa. 535, 605 A.2d 1204, 1209, 1211 (1992) (“if more than one function is reposed in a single administrative entity, walls of division [must] be constructed which eliminate the threat or appearance of bias”; specifically, “placing the prosecutorial functions in a group of individuals, or entity, distinct from the Board which renders the ultimate adjudication”). ¶ 28 Although Appellants do not allege actual bias, the circumstances here deprived them of due process. Apparently unique in the context of Arizona administrative law, Arizona’s campaign finance statute, when joined with the APA, place a single official in the position of making both an initial and final determination of legal violation, with no opportunity for de novo review by the trial court. A quasi-judicial proceeding “must be attended, not only with every element of fairness but with the very appearance of complete fairness.” Amos Treat & Co. v. Sec. & Exch. Comm’n, 306 F.2d 260, 266-67 (D.C. Cir. 1962) (holding that a similar combination of functions violated the “basic requirement of due process”). Specifically, we hold that when Polk also assumed an advocacy role during the ALJ px-oceedings, the due process guarantee prohibited her from then serving as the final adjudicator. III. REMEDY ¶ 29 Appellants argue that because there was no “valid” decision by the agency head within thirty days after the ALJ decision, we should reinstate the ALJ decision as the “final administrative decision” pursuant to A.R.S. § 41-1092.08(D) (“if the head of the agency ... does not accept, reject or modify the administrative law judge’s decision within thirty days,” it becomes “the final administrative decision”). We disagree. The agency head took action within the deadline. ¶30 Rather, Appellants are entitled to a determination by a neutral decisionmaker. See Williams, 136 S.Ct. at 1910; Botsko, 774 N.W.2d at 853; Nightlife Partners, 133 Cal. Rptr.2d at 248-49. We therefore remand the matter to the current Attorney General’s Office, which does not have a conflict, for a final administrative decision. We express no opinion on the merits of the case. ¶ 31 After filing them petition for review, Appellants submitted an amended request for attorney fees under A.R.S. § 12-348(A)(2), which allows an award of fees for a party that “prevails by an adjudication on the merits” in a “court proceeding to review a state agency decision.” Because the case is remanded, any fee award would be premature as no party has yet “prevailed] by an adjudication on the merits.” Scottsdale Healthcare, Inc. v. Ariz. Health Care Cost Containment Syst. Admin., 206 Ariz. 1, 8 ¶ 29, 75 P.3d 91, 98 (2003) (alteration in original). ¶ 32 For the foregoing reasons, we vacate the decisions of the superior court and court of appeals, and remand the case to the Attorney General’s Office for further proceedings consistent with this opinion. . Pollc notes that the federal APA contains an exception allowing an agency head, unlike other employees, to both participate in investigative or prosecuting functions and participate or advise in the agency review or decision. 5 U.S.C. § 554(d). Arizona's APA contains no such exception. Arizona's APA tacitly recognizes tire potential for conflict arising from agency officials performing certain multiple roles in the administrative adjudication process. Section 41-1092.06(B) provides that in the context of informal settlement conferences, the agency must be represented by "a person with the authority to act on behalf of the agency,” and the "parties participating in the settlement conference shall waive their right to object to the participation of the agency representative in the final administrative decision.” . As Appellants did not raise or argue a distinct state constitutional claim, we have no occasion to determine whether the due process provision in Arizona’s Declaration of Rights, Ariz. Const. art. 2, § 4, provides greater protection in this context than the Fourteenth Amendment. Cf. Garris v. Governing Bd. of S.C. Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48, 54 (1998) (holding that the state constitution provides greater procedural protections in administrative proceedings than federal due process).

OPINION DOWNIE, Judge: ¶ 1 Cathie Hardt and Lome Nevens (collectively, “Appellants”) appeal a final judgment entered after a jury trial that resulted in a defense verdict. Because we conclude the superior court improperly precluded Appellants’ rebuttal causation expert as “dupli-cative,” and Appellants have demonstrated resulting prejudice, we reverse and remand for a new trial. FACTS AND PROCEDURAL HISTORY ¶ 2 Hardt was admitted to the Arizona Heart Hospital (“AZHH”) in the early morning hours of August 25, 2008 with “complete occlusion of the distal aorta at its bifurcation, which presented as pulseless lower extremities.” She was deemed a “high-risk” patient at risk of death without removal of the blockage. Hardt underwent surgery at AZHH that same morning. ¶ 3 On August 27, AZHH staff documented the presence of Stage I and II ulcers on Hardt’s back and sacral/coccyx area. By September 9, 2008, the ulcers had progressed to Stage III, and upon discharge from AZHH on September 18, 2008 to Heartstone Hospital-Mesa, LLC, dba Trillium Specialty Hospital-East Valley (“Trillium”), Hardt had a Stage IV ulcer. ¶ 4 Appellants sued AZHH and Trillium, alleging Hardt was a vulnerable adult who developed “avoidable pressure ulcers due to substandard nursing care, negligence, abuse, and neglect.” The court ordered the claims against Trillium arbitrated, but the lawsuit against AZHH proceeded. ¶ 5 After a nine-day trial, the jury returned a verdict in favor of AZHH. Appellants unsuccessfully moved for a new trial pursuant to Arizona Rule of Civil Procedure (“Rule”) 59. After the superior court issued its final judgment, Appellants timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and -2101(A)(5)(a). DISCUSSION 1. Preclusion of Appellants’ Rebuttal Expert ¶ 6 Joseph Silva, M.D. testified as a causation expert during Appellants’ case-in-chief. Dr. Silva, who is Board-certified in internal medicine and has a specialty in infectious disease, opined that Hardt developed pressure ulcers during her stay at AZHH that were preventable through repositioning, wound care, and adequate nutrition. Dr. Silva did not offer opinions regarding vascular issues, testifying he would defer to a vascular surgeon on that topic. ¶ 7 During its case-in-chief, AZHH called Gerald Treiman, M.D.—a Board-certified general and vascular surgeon—to testify as its causation expert. Dr. Treiman opined that Hardt’s ulcers were caused by a lack of blood flow that pre-dated her admission to AZHH. ¶ 8 Appellants planned to call vascular surgeon Paul Collier, M.D. as a rebuttal witness to refute Dr. Treiman’s opinions. After the defense rested, however, AZHH orally moved to preclude Dr. Collier, arguing he would be “a repetitive causation expert” in violation of Rule 26. The superior court agreed, labeling Dr. Collier “a duplicative expert” and precluding his testimony. ¶ 9 A ruling admitting or excluding evidence will not be overturned on appeal absent abuse of discretion and resulting prejudice. Schwartz v. Farmers Ins. Co. of Ariz., 166 Ariz. 33, 37, 800 P.2d 20, 24 (App. 1990). If an evidentiary ruling is predicated on a question of law, however, we review that ruling de novo. Yauch v. S. Pac. Transp. Co., 198 Ariz. 394, 399, ¶ 10, 10 P.3d 1181 (App. 2000), And even when a ruling is discretionary, “[a] court abuses its discretion if it commits an error of law in reaching a discretionary conclusion.” Flying Diamond Airpark, LLC v. Meienberg, 216 Ariz. 44, 60, ¶ 27, 166 P.3d 1149 (App. 2007). ¶10 Rule 26(b)(4)(D) states that “[u]nless the parties agree or the court orders otherwise for good cause, each side is presumptively entitled to call only one retained or specially employed expert to testify on an issue.” The rule, however, contemplates “liberal expansion of its presumptive limitation when ‘an issue cuts across several professional disciplines.’” Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 322 ¶ 18, 183 P.3d 1285 (App. 2008) (quoting Ariz. R. Civ. P. 26(b)(4) cmt. to 1991 amend.). ¶ 11 To the extent Dr. Collier’s rebuttal testimony would have focused on vascular issues, it would not have been duplicative of or cumulative to Dr. Silva’s because Dr. Silva had not addressed such matters. “[T]he intent of Rule 26(b)(4)(D) is simply to limit the presentation of cumulative evidence,” id., meaning evidence that “merely augments or tends to establish a point already proved by other evidence,” State v. Kennedy, 122 Ariz. 22, 26, 692 P.2d 1288, 1292 (App. 1979). ¶ 12 AZHH’s closing argument made it abundantly clear that Dr. Silva’s opinions and expertise were qualitatively different from (and, in AZHH’s view, inferior to) a vascular surgeon’s. Counsel argued: [Dr. Silva is] a nice guy, but he ain’t the right type of doctor for this case, he’s not a vascular surgeon; he’s not even a surgeon—not a vascular surgeon. He doesn’t have the right expertise. Dr. Treiman was the only vascular surgeon you heard from as an expert witness. You didn’t hear any other vascular surgeon. You didn’t hear anybody with the right expertise. So we put on the person with the right expertise. We put on the person who was best qualified, best able to talk about what happened, why it was in this case. And what did that one and only vascular surgeon when you talk about causation, what caused this. What did that one and only expert tell you? ¶ 13 Contrary to AZHH’s suggestion on appeal, there is nothing untoward about Appellants making a “strategic” decision to wait to call Dr. Collier in rebuttal, as opposed to during their case-in-chief. See City Transfer Co. v. Johnson, 72 Ariz. 293, 297, 233 P.2d 1078 (1951) (“[T]he law is well settled that the mere fact that testimony might have been introduced as a part of the case in chief will not preclude its being made a part of the rebuttal.”). “Rebuttal evidence is to counter a new fact or allegation made by an opponent’s case.” Jansen v. Lichwa, 13 Ariz.App. 168, 171, 474 P.2d 1020 (1970). Appellants’ theory of causation was, as Dr. Silva testified, that negligence by medical professionals at AZHH caused Hardt’s ulcers. Unless and until AZHH placed evidence before the jury that Hardt’s uleers were caused by pre-exist-ing vascular issues, Appellants had no reason to present testimony by a vascular expert, Appellants presented a prima facie case of causation during their case-in-chief through Dr. Silva based on their theory of the case— not AZHH’s defense. They were not required to do otherwise, ¶ 14 In opposing the motion for new trial, AZHH argued that Appellants “sought to duplicate Dr. Silva by also calling Dr. Collier to testify on causation issues.” The record does not support this characterization. Although some of Dr. Collier’s disclosed opinions might have duplicated Dr. Silva’s, and thus been properly excluded as cumulative if Appellants had sought to offer them at trial, it is clear from Appellants’ pretrial disclosures that, unlike Dr. Silva, Dr. Collier would discuss and refute Dr. Treiman’s opinion that vascular conditions caused Hardt’s ulcers. ¶ 15 AZHH also faults Appellants for not making a more detailed proffer to the court about Dr. Collier’s intended rebuttal testimony. But it was not until the close of day six of trial that AZHH orally moved to preclude Dr. Collier. Until that time, the record suggests Appellants had every reason to believe Dr. Collier would be permitted to testify in rebuttal. They had properly disclosed and listed both Dr. Silva and Dr. Collier as witnesses in the joint pretrial statement. Although AZHH objected to other witnesses Appellants listed, it did not object to Dr. Collier. AZHH filed pretrial motions to preclude other expert witnesses, including one motion asserting that Appellants were offering another expert in violation of Rule 26(b)(4)(D) because she would duplicate other standard-of-care expert testimony. Yet there was no indication until more than halfway through trial that AZHH would seek to preclude Dr. Collier. Moreover, the superior court had the necessary information before it, having heard Dr. Silva specifically testify he was not opining about vascular issues. ¶ 16 Rule 16(g)(2)(D) requires a joint pretrial statement to contain a list of witnesses each party intends to call to testify at trial, identifying those witnesses whose testimony will be presented solely by deposition. Each party must list any objection to a witness and the basisfor that objection. (Emphasis added.) “The pretrial statement serves to narrow the scope of the legal and factual issues to those which are truly legitimate, prevents surprises and facilitates the trial of the case. The pretrial statement controls the subsequent course of the litigation.” Aetna Cas. & Sur. Co. v. Dini, 169 Ariz. 555, 557, 821 P.2d 216, 218 (App. 1991) (addressing predecessor rule to Rule 16(g)). Issues that are not identified in the pretrial statement may be deemed waived. Carlton v. Emhardt, 138 Ariz. 353, 355, 674 P.2d 907, 909 (App. 1983). Rule 26(b)(4)(D) is not intended as a vehicle to permit last-minute objections during trial, especially when the party urging preclusion has not previously objected as required by Rule 16(g)(2)(D). Cf. Ferguson v. Tamis, 188 Ariz. 425, 429, 937 P.2d 347, 351 (App. 1996) (addressing prior rule prescribing one expert per issue and holding that the rule should not be used as “a weapon of destruction” in an “arsenal of technicalities”). ¶17 Appellants have also demonstrated that they were prejudiced by the preclusion of Dr. Collier’s testimony, AZHH’s closing argument alone demonstrates the prejudice. Based on the erroneous exclusion of Dr. Collier’s testimony, we vacate the judgment in favor of AZHH and remand for a new trial. II. Consortium Claim ¶ 18 The superior court entered judgment as a matter of law against Nevens (Hardt’s daughter) on her loss of consortium claim, finding the evidence insufficient to submit that claim to the jury. Because we are remanding this matter for a new trial, we need not address Nevens’ consortium claim in depth. We note, however, that a child asserting loss of consortium as to a parent need not present evidence of catastrophic injuries. See, e.g., Miller v. Westcor Ltd. P’ship, 171 Ariz. 387, 395, 831 P.2d 386, 394 (App. 1991) (“The focus of the trial court’s inquiry is on the interference with the normal relationship between parent and child.”). It is unclear what standard the superior court applied to Nevens’ loss of consortium claim, which may be re-litigated on remand. III. Testimony by Former AZHH Employee ¶ 19 Because the issue may arise on remand, we address Appellants’ challenge to the preclusion of certain testimony by Pamela Molyneaux—a former AZHH employee who worked as a clinical document specialist. ¶20 AZHH moved in limine to preclude Molyneaux from testifying “about liability or billing” in the context of hospital chart entries reflecting the presence of skin ulcers. Appellants opposed the motion, arguing Mo-lyneaux had testified at deposition that entries were added to Hardt’s chart to reflect the presence of pressure ulcers when she was admitted to the hospital and that documenting ulcers is a “liability issue.” AZHH responded that it was not contending Hardt had ulcers when admitted to its facility. The superior court ruled: [T]he plaintiff will be allowed to examine Molyneaux as to ... her work as a clinical document specialist in chart review and in placing in the charts the documents that, according to the plaintiffs’ theory, may have induced two doctors to make a chart entry that was incorrect, So be allowed to establish that, and be allowed to establish the—that that was done ... for the purposes of—of making sure the hospital received maximum reimbursement from insurance providers. I do not find, based upon what has been presented to me, that there’s adequate foundation for Molyneaux to testify that the reason for the query was ... for purposes of limiting the hospital’s liability. Prom everything that was presented to me, that seemed to be extraordinarily equivocal and not based on adequate foundation, ... would be an improper opinion by someone who is not being offered or qualified as an expert. ¶ 21 “In determining relevancy and admissibility of evidence, the trial judge has considerable discretion.... Evidence is relevant if it has any basis in reason to prove a material fact in issue.” State v. Smith, 136 Ariz. 273, 276, 665 P.2d 995, 998 (1983); see Ariz. R. Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”). Had AZHH taken the position that Hardt had pressure ulcers upon admission, more expansive testimony by Molyneaux might have been relevant to challenge the veracity of that assertion. But the superior court could reasonably conclude that whether AZHH had incentive to evade liability or recover enhanced reimbursement from an insurer or third-party payor by falsely documenting the existence of ulcers upon admission was irrelevant to the questions before the jury—i.e., whether AZHH committed medical negligence or abused a vulnerable adult. Additionally, the record supports the court’s finding that Mo-lyneaux’s testimony about liability was “extraordinarily equivocal” and lacking in foundation. ¶ 22 To the extent Appellants also challenge the preclusion of a July 31, 2008 letter from the Center for Medicaid and State Operations, the record reveals no abuse of discretion based on information before the court at the time of its ruling. The letter at issue addresses Medicare billing and reimbursement policies effective October 1, 2008 for “selected hospital-acquired conditions,” including pressure ulcers. The policy was not in effect during Hardt’s stay at AZHH, Hardt was not a Medicare patient, AZHH’s billing practices were not at issue, and the superior court concluded the document had “the potential for ... generating confusion.” IV. Remaining Issues ¶ 23 Appellants identify two additional issues that we do not reach: (1) the submission of Trillium’s fault to the jury; and (2) the court’s handling of a jury question received during deliberations. The second issue is not likely to recur on remand. And the first issue, as framed, relates to the court’s decision during trial to reverse an earlier ruling precluding a non-party at fault defense. Given the defense verdict, the jury had no occasion to consider comparative fault, and Appellants thus suffered no prejudice. We express no opinion about whether AZHH may present a non-party at fault defense at the new trial. CONCLUSION ¶ 24 For the foregoing reasons, we reverse the judgment of the superior court and remand for a new trial. We award Appellants their taxable costs on appeal contingent on compliance with Arizona Rule of Civil Appellate Procedure 21. . Although Jeffrey Nevens was originally named as a plaintiff, he was dismissed as a party and is not involved in this appeal. . For example, one of Dr. Collier’s disclosed opinions was that "[t]he lack of pressure relief was clearly the cause of the pressure ulcer"—an opinion that would have been cumulative.

OPINION HOWARD, Presiding Judge: ¶ 1 Following combined probation revocation and delinquency proceedings on multiple petitions, the juvenile court continued J.A. on Juvenile Intensive Probation Supervision (JIPS), and ordered him to complete a program at Canyon State Academy (CSA) as a condition of probation. On appeal, J.A. argues the court erred by giving the probation department the discretion to decide whether to require him to wear a global positioning system (GPS) monitor upon his release from the program, over his objection. We affirm the court’s order in all other respects but vacate that portion of the disposition report relating to the GPS monitor. Factual and Procedural Background ¶2 At the November 2016 disposition hearing, the juvenile court, the probation officer, and counsel for the parties discussed the recommended disposition of JIPS and J.A.’s participation in the program at CSA. J.A,’s counsel acknowledged the CSA program was a good choice for him, but asked the court not to order him to wear a monitor upon his release; she explained that she hoped J.A. would be successful at the program and would be able to reintegrate into the community without electronic monitoring. Counsel suggested “he should be given the incentive to get through this program and come out without that kind of restriction on him,” adding that if things did not “go well ... you can readdress it at that time.” ¶ 3 At the end of the disposition hearing, the juvenile court continued J.A. on JIPS for twelve months, and ordered him to participate in the CSA program as a condition of probation. The court added that the probation department would have “discretion whether to put the GPS on or not at any time during probation.” Relying on In re Navajo County Juvenile Action No. 92-J-04.0, 180 Ariz. 662, 886 P.2d 1127 (App. 1994), counsel objected, arguing the court could not delegate that kind of authority and could only impose that condition in the exercise of its discretion after a hearing. After further discussion, the court invited counsel to file a motion on the issue and set the matter for a review hearing on January 31, 2017. Nevertheless, in its disposition order, the court gave the discretion to the probation officer to determine whether to require J.A. to wear a monitor, ¶ 4 On appeal, J.A. raises the same objection he raised below. The state responded in its answering brief, that it “takes no issue with Appellant’s analysis of Arizona case law.” But, the state argued the juvenile court never ruled on whether J.A. was to wear the GPS monitor, setting the matter for a later hearing and adding “there are no minute entries or transcripts to illuminate what transpired.” Consequently, this court suspended the appeal on its own motion and ordered the juvenile court to transmit the record that exists after the November 2016 disposition to determine whether the issue raised in this appeal has been rendered moot by a subsequent ruling. There is no reference to the GPS monitor in the minute entry from the January 31, 2017 review hearing. We are therefore left with the minute entry from the November disposition, which plainly states that the probation officer has the discretion to require J.A. to wear a GPS monitor. Thus, contrary to the state’s contention, the court has ruled on this issue and has, as J.A. asserts, delegated the discretion to his probation officer. Discussion ¶ 6 The juvenile court has the statutory authority to determine the disposition in delinquency and probation revocation proceedings as provided in A.R.S. § 8-341. Only the juvenile court has the authority to impose or modify terms of probation. Ariz. R.P. Juv. Ct. 31(A), (C). Absent an abuse of discretion, we will not disturb the court’s ruling. In re Nicholas, 223 Ariz. 403, ¶ 4, 224 P.3d 219, 220 (App. 2010). The court abuses its discretion when it commits an error of law. Id. ¶ 6 In Navajo County No. 92-J-OjO, the juvenile court had ordered the juvenile to spend one week in detention as a condition of probation but gave his probation officer the discretion to require him to serve an additional thirty days. 180 Ariz. at 563, 885 P.2d at 1128. Vacating that portion of the disposition order, this court found the court could not delegate its authority to determine the appropriate disposition and to determine the conditions of probation initially or upon modification. Id. at 563-64, 885 P.2d at 1128-29. A probation officer has only the limited authority to “impose regulations which are consistent with and necessary to the implementation of the conditions imposed by the court.” Ariz. R. P. Juv. Ct. 31(A), (C); see also Andrew G. v. Peasley-Fimbres, 216 Ariz. 204, ¶ 12, 165 P.3d 182, 185 (App. 2007) (finding extension of probationary period not within probation officer’s limited authority). ¶ 7 Whether a juvenile requires the additional restraint and structure of an electronic monitor is the kind of probationary condition that requires the “reflective discretion” of a judge exercising his or her “independent judgment” in determining the appropriate disposition. See In re Harry B., 193 Ariz. 156, ¶¶ 16-17, 971 P.2d 203, 206-07 (App. 1998) (although juvenile court may consider input of probation officer, it must exercise its discretion in determining conditions of probation and should not defer to probation officer). That it is for the court to decide is implicit in § 8-341, which provides in subsection (D) that the court may include electronic monitoring as a condition of mandatory probation for a repetitive felony offender. See In re Russell M., 200 Ariz. 23, ¶ 5, 21 P.3d 409, 411 (App. 2001). Similarly, A.R.S. § 8-352, which relates to JIPS, provides that the court may place a juvenile on JIPS if he or she meets the various conditions listed in the statute as well as any other “conditions imposed by the court, including electronic monitoring.” § 8-352(E)(5); see Ariz, Code of Jud. Admin, § 6-302.01 (setting forth provisions relating to JIPS and referring to disposition alternatives under § 8-352, including electronic monitoring under subsection § 8-352(E)(6)). Disposition 18 We conclude the juvenile court erred in giving the probation department discretion to determine whether J.A. should be compelled to wear a GPS monitor upon release from CSA. We therefore vacate that portion of the court’s November 3, 2016 order and affirm in all other respects. . This court's decision in In re Marie G., 189 Ariz. 632, 944 P.2d 1246 (App. 1997), is instructive here. Although we held in that case that the juvenile court had not “abuse[d] its discretion in ordering ten weekends of detention and in promising a no-hearing waiver of detention if that week’s urinalysis testing was negative,” we cau-honed that this procedure would only be adequate if the detention were waived, adding that "a more formal process is necessary before waiver of detention can be denied.” Id. at 634, 944 P.2d at 1248. That process would include notice to the juvenile and an "opportunity to contest it and present evidence.” Id.

OPINION STARING, Presiding Judge: ¶ 1 Tammy M. appeals from the juvenile court’s November 2016 order terminating her parental rights to O.E., who was born in December 2014, after submission of the matter on the record. As grounds for termination, the court found Tammy was unable to parent effectively due to a history of chronic substance abuse that was likely to continue for a prolonged, indefinite period, see A.R.S. § 8—533(B)(3), and also found she had failed to remedy the circumstances that caused O.E. to be in court-ordered, out-of-home care for longer than fifteen months, see § 8-533(B)(8)(c). On appeal, Tammy argues the Department of Child Safety (DCS) failed to establish by clear and convincing evidence that she suffers from chronic, disabling substance abuse. She also maintains her due process rights were violated when the court, having permitted her attorney to withdraw two days before the severance trial, denied her request for appointed counsel. ¶ 2 Based on the submitted record, we cannot say Tammy has shown the juvenile court abused its discretion in finding the evidence sufficient to terminate her parental rights. But Tammy maintains, and the record supports, that she consented to a “paper trial” only after the court denied her request for new counsel. Because we conclude the court abused its discretion in denying that request, we reverse the termination order and remand the case for further proceedings. Relevant Background ¶ 3 This dependency proceeding, originally filed in Maricopa County, was transferred to Pima County in April 2015, and the juvenile court appointed Charles Lagattuta to represent Tammy. The following month, Lagattuta moved to withdraw with Tammy’s consent, citing her “extreme dissatisfaction” and a resulting conflict “such that further representation would be impossible.” Lagattuta requested the appointment of Cynnamon Ar-izpuru, who had indicated her availability and willingness to represent Tammy. The court granted Lagattuta’s request and appointed Arizpuru as substitute counsel. ¶ 4 In July 2016, DCS filed a motion to terminate Tammy’s parental rights. In August, both Arizpuru and counsel for O.E.’s father, Larry E., filed motions to withdraw from representation. In her motion, Arizpu-ru informed the court that “[t]he Attorney/Client relationship has disintegrated to a point that it is not salvageable,” that she believed Tammy “wishes to represent herself in further proceedings,” and that appointment of either advisory counsel or a guardian ad litem would be appropriate. ¶ 5 According to a minute entry for the hearing held on August 11, 2016, the next scheduled hearing, the juvenile court noted Arizpuru’s statement that Tammy had “indicated her wish to represent herself,” questioned both parents, and granted both motions to withdraw, appointing Kasey Coughlin as Tammy’s new attorney. In September, the juvenile court scheduled October 26 as the first day of a contested severance trial, stating the set trial dates were “firm” and would not be continued “absent extraordinary circumstances either unforeseen or unavoidable.” ¶ 6 On October 13, Coughlin filed a “Motion to be Relieved as Counsel for Mother and Possibly Serve as Advisory Counsel,” asking that she be withdrawn as counsel of record for Tammy. In her motion, she stated her communication with Tammy had broken down to the point that she could “no longer effectively represent” her. She expressed her belief, as had Arizpuru, that Tammy wished to represent herself at the contested severance trial. She did not know if Tammy would want her to serve in an advisory role, but she expressed her willingness to do so, ¶ 7 Tammy did not appear at the October 24 motion hearing, and the juvenile court found no good cause for her absence and granted Coughlin’s motion to withdraw. But it directed that Coughlin remain as advisory counsel, ordering her to make good faith efforts to assist Tammy in preparing for trial. The court further ordered Coughlin to “make good faith efforts to continue acting as counsel and trial counsel” if Tammy asked her to do so. ¶ 8 Two days later, on the first day of the scheduled severance trial, Tammy asked the juvenile court to appoint counsel and to continue the trial to afford her new attorney time to prepare. When questioned about her request, Tammy said she understood her personality “may be strong,” but she wanted an attorney who would “listen to [her] and proceed the way [she] ask[ed] them to,” in light of the serious consequences at stake. The court sought to clarify that she was asking for additional time because she wanted another attorney, and Tammy responded, “Yes. Yes, please. And I don’t need a lot of time. I just would like somebody to help me, Because I am not a lawyer, I don’t know how to do any of this stuff.” ¶ 9 Larry E. joined Tammy’s motion, and counsel for O.E. took no position. DCS objected to a continuance, maintaining the circumstances were not “unforeseen” and reminding the court that in August, when moving to withdraw, Arizpuru had stated her belief that Tammy wished to represent herself. Although DCS objected to continuing the trial, it took no position on Tammy’s request for appointment of counsel. ¶ 10 The juvenile court denied Tammy’s oral motion and request for counsel, finding she had not presented the “extraordinary circumstances” required for a trial continuance. The court stated it had reviewed portions of the record and had “listened to the admonitions or the warnings I gave [Tammy] about the need to be prepared for trial, the need to cooperate with her attorneys.” The court noted that Tammy had been appointed three attorneys and that, although it had granted Coughlin’s motion to withdraw, it had “ordered [her] to stay on as advisory counsel” and “to be prepared, as best as possible, to step in and take over” if Tammy so requested, ¶ 11 After the juvenile court denied her motion for a continuance and request for counsel, Tammy agreed to submit the matter based on the record and exhibits, in lieu of live testimony. In an under advisement ruling, the court found DCS had proven grounds for termination under § 8—533(B)(3) and (B)(8)(c), as alleged in its motion, and had also proven that severance was in O.E.’s best interests. ¶ 12 We subsequently appointed Richard Beck to represent Tammy on appeal. On December 28, after a record review and consultation with his client, Beck filed a motion asking to be relieved of further responsibility in this case because he could find “no non-frivolous issue on which to base an appeal.” He also noted Tammy “strongly disagree^]” with his assessment of the case and wanted to represent herself on appeal, We permitted Beck to withdraw and Tammy was allowed to proceed pro se. Discussion ¶ 13 We review a court’s denial of a request for new counsel for an abuse of discretion. See State v. Moore, 222 Ariz. 1, ¶ 77, 213 P.3d 150, 164 (2009). But we review constitutional issues and purely legal issues de novo. Id. ¶ 51. Tammy contends she was denied due process when the juvenile court denied her request for appointed counsel after it had permitted Coughlin to withdraw two days before the scheduled severance trial. We agree. ¶ 14 An indigent parent in a proceeding to terminate parental rights has a right to appointed counsel afforded by statute, AR.S. § 8-221, by rule, Ariz. R. P. Juv. Ct. 38(B), and as a matter of due process, Daniel Y. v. Ariz. Dep’t of Econ. Sec., 206 Ariz. 257, ¶ 14, 77 P.3d 55, 58 (App. 2003) (“constitutional dimension” of right to counsel in severance). DCS does not dispute Tammy was indigent and therefore entitled to appointed counsel. Instead, it argues there was no denial of Tammy’s right to counsel because she was “represented” by advisory counsel— Coughlin—“who was to assist her and be prepared to step in if [Tammy] needed her to.” In the alternative, DCS argues Tammy waived her right to counsel. ¶ 15 In Daniel Y,, we concluded the juvenile court erred in terminating a father’s parental rights without providing appointed counsel when the father “made no unequivocal request to represent himself and did not knowingly or voluntarily waive, or otherwise forfeit, his right to counsel.” 206 Ariz. 257, ¶ 26, 77 P.3d at 61. As in this proceeding, the juvenile court in Daniel Y. had already permitted two attorneys to withdraw based on allegations of “strategic” or “irreconcilable” differences when, two weeks before the severance trial, Daniel’s most-recently appointed attorney moved to withdraw based on irreconcilable differences. Id. ¶¶ 5-6. The court granted counsel’s request to withdraw after an ex parte, in camera hearing and declined to appoint substitute counsel. Id. ¶ 6. It referred to an earlier minute entry in which it had cautioned that it “would find it very difficult to grant any other motion to withdraw filed by an attorney or request for a new attorney filed by” Daniel. Id. At the severance trial, when the court asked whether he was ready to proceed, Daniel responded that, without counsel, he did not know how to answer the question. Id. ¶7. The court nevertheless proceeded with the hearing and terminated his parental rights. Id. ¶¶7,10. ¶ 16 Drawing on criminal cases involving the right to counsel, in particular State v. Moody, 192 Ariz. 505, 968 P.2d 578 (1998), and State v. Henry, 189 Ariz. 542, 944 P.2d 57 (1997), the Daniel Y. court observed that the waiver of the right to counsel cannot be “easily presumed.” 206 Ariz. 257, ¶¶ 15-21, 77 P.3d at 58-60. As in “any proceeding involving the surrender of Constitutional rights, it must appear from the record that the waiver was knowingly, intelligently and voluntarily made ... [and waiver] will not be presumed from a silent record.” Id. ¶ 18, quoting State v. Avila, 127 Ariz. 21, 25, 617 P.2d 1137, 1141 (1980). Thus, before the juvenile court could find Tammy had waived her right to counsel, Arizona law required that she be advised of “the dangers of self-representation, and tlie difficulties involved in defending oneself without formal legal training." Id. ¶ 15, quoting State v. Djerf, 191 Ariz. 583, ¶ 23, 959 P.2d 1274, 1282 (1998). ¶17 In addition, although “persistent disruptive or dilatory conduct” may support a determination that the right to counsel has been waived, “[s]uch a waiver by conduct can occur only after a court both warns the [party] that further disruptive conduct may result in the loss of the right to counsel and explains the implications of such a waiver.” State v. Hampton, 208 Ariz. 241, ¶ 7, 92 P.3d 871, 874 (2004), citing Daniel Y., 206 Ariz. 267, ¶¶ 15-17, 77 P.3d at 58-59. Thus, where it appeal’s a party may have an unavoidable, recurring conflict with any attorney—for ex- ample, because he insists on an impermissible defense—a trial court must make “very clear” that if “another irreconcilable conflict develops as a result,” he “will have to choose between his [presently assigned] lawyer or self-representation.” Moody, 192 Ariz. 505, ¶ 26, 968 P.2d at 582 (Martone, J., concurring), cited with approval in Daniel Y., 206 Ariz. 257, ¶ 17, 77 P.3d at 59. ¶ 18 In Daniel Y., we noted the supreme court’s approval of the choice afforded in Henry, requiring a defendant to “either keep his current counsel, with whom he had no real irreconcilable conflict, or elect to represent himself’ by making “an unequivocal request to do so.” Daniel Y., 206 Ariz. 257, ¶ 21, 77 P.3d at 60, citing Henry, 189 Ariz. at 546-48, 944 P.2d at 61-63. In Henry, the defendant had moved for substitute counsel alleging an “irreconcilable conflict.” Henry, 189 Ariz. at 546, 944 P.2d at 61. The trial court found no such conflict, declined to appoint substitute counsel and offered Henry a choice “between keeping his attorney and representing himself.” Id. When Henry refused to make a choice between these alternatives, the court proceeded with the hearing, with Henry represented by existing counsel. Id. ¶ 19 The Henry court affirmed the trial court’s denial of the motion for substitute counsel, finding “ample evidence” that the “‘conflict’” described by Henry “amounted to nothing more than a disagreement over appropriate defense strategies.” Id. at 547, 944 P.2d at 62. It also rejected his alternative claim that the court had denied his right of self-representation. Id. at 548, 944 P.2d at 63. The court explained, “In order to successfully invoke this right, ... the accused must make an unequivocal request to represent himself,” and it found Henry had failed to do so. Id. ¶ 20 In Daniel Y., we also recognized the Henry court “did not hold ... that the trial court could allow existing counsel to withdraw and require the defendant to proceed unrepresented without providing the defendant with advance warning." Daniel Y., 206 Ariz. 257, ¶ 21, 77 P.3d at 60. Here, as in Daniel Y, we see no evidence in the record that Tammy voluntarily waived her right to counsel, was warned of the dangers of self-representation, or was advised that, if Coughlin moved to withdraw, she might be required to choose between Coughlin and self-representation. ¶ 21 DCS argues the juvenile court effectively afforded Tammy the choice of continuing with Coughlin, by ordering Coughlin to be prepared to resume her representation at Tammy’s request. However, because the court granted Coughlin’s motion to withdraw based on her assertion she could “no longer effectively represent” Tammy, Coughlin’s further representation of Tammy would be inconsistent with due process. It is “constitutionally impermissible” to require a party entitled to counsel to choose between self-representation and “representation by a lawyer with whom [s]he had a completely fractured relationship, clearly an ‘irreconcilable conflict.’” Moody, 192 Ariz. 505, ¶ 23, 968 P.2d at 582; see also State v. Cromwell, 211 Ariz. 181, ¶ 29, 119 P.3d 448, 453 (2005) (“irreconcilable conflict” or “completely fractured” attorney-client relationship “ordinarily requires the appointment of new counsel”). Thus, the court’s order permitting Coughlin to withdraw was inconsistent with its order that she be available to resume representation of Tammy if requested. ¶ 22 DCS next argues that even if Tammy was not afforded counsel consistent with due process, she had “knowingly, voluntarily, and intelligently” waived that right. In support, it maintains she “prepare[d] and flle[d] pleadings on her own behalf and repeatedly asserted] that she wished to represent herself.” But the pro se pleadings DCS identifies were submitted to the court only after Coughlin was permitted to withdraw, not before. Further, although the record shows two withdrawing counsel had stated they believed Tammy wished to represent herself, nothing in the record suggests Tammy ever made such a request of the court, either orally or in writing, or that she persisted in that request after being advised of the dangers of self-representation. Her request for appointment of counsel made at the severance trial suggests otherwise. Cf. State v. Russell, 175 Ariz. 529, 532-33, 858 P.2d 674, 677-78 (App. 1993) (court’s failure to expressly find knowing and voluntary waiver excused where record included defendant’s early, articulate pro se motion for self-representation, signed waiver of counsel form, and evidence of knowledge of legal proceedings and therefore supported implicit finding). ¶ 23 DCS also maintains Tammy waived her right to counsel by her conduct, citing the juvenile court’s reference to its earlier admonitions “about the need to be prepared for trial, the need to cooperate with her attorneys,” along with the court’s notice that trial dates would not be continued absent extraordinary circumstances. We disagree with the assertion that such general warnings constituted “advance notice that [Tammy’s] motion for a fourth attorney would not be entertained at that late date and that she would need to maintain the relationship with her current attorney or proceed unrepresented.” In Daniel Y, we found more specific warnings insufficient to effect a voluntary and intelligent waiver of counsel. See Daniel Y., 206 Ariz. 257, ¶¶ 22-23, 77 P.3d at 60 (court’s statement that it would “find it very difficult to grant any other motion to withdraw filed by an attorney or request for a new attorney filed by [Daniel]” insufficient warning that “a repeated instance of irreconcilable conflict would cause him to choose between counsel and self-representation”). And, as already explained, the court failed to offer Tammy a constitutionally permissible alternative to self-representation after granting Coughlin’s motion to withdraw. See Moody, 192 Ariz. 505, ¶ 23, 968 P.2d at 582. ¶ 24 Likewise, Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995), does not support DOS’s contention that we must presume the omitted transcript from the August 2016 motion to withdraw hearing supports the court’s “implicit finding” that Tammy had been warned about the consequences of representing herself. Even if we presume Tammy was warned, it would not alter our analysis because the juvenile court did not offer Tammy the choice between self-representation and denying the motion to withdraw; rather, it permitted Coughlin’s withdrawal without permitting response. See Daniel Y., 206 Ariz. 257, ¶ 22, 77 P.3d at 60 (noting Daniel “would have been represented by counsel at the severance hearing” had he been given the choice to remain with counsel before counsel was permitted to withdraw). Disposition ¶ 25 For the foregoing reasons, we reverse the juvenile court’s termination order and remand the case for further proceedings. . To the extent Tammy challenges it, we lack jurisdiction to review the juvenile court's March 2016 order approving DCS's removal of O.E. from kinship care. That order was final and appealable, see Lindsey M. v. Ariz. Dep’t of Econ. Sec., 212 Ariz. 43, ¶ 9, 127 P.3d 59, 61-62 (App. 2006), and the time to seek appellate review has passed. See Ariz. R.P. Juv. Ct. 104(A) (appeal must be filed within fifteen days of final order). . Larry E.'s parental rights to O.E. have also been terminated. He is not a party to this appeal. . The transcript of this proceeding is not part of the record on appeal. . In contrast to counsel’s stated inability to identify a non-frivolous issue, Tammy filed a detailed opening brief that accurately presented the due process issue and some of the supporting case law we discuss herein. . The record before us, including the appointment of three attorneys in the juvenile court, more than suggests Tammy is a challenging client. However, the fact it may be difficult to work with Tammy neither diminishes her right to due process nor permits us to infer that she would be unable to work with some other attorney. , When these matters were heard, Rule 39, Ariz. R.P. Juv. Ct., provided courts with little guidance with respect to motions to withdraw filed by attorneys in termination proceedings. See 198 Ariz. CLXXV (2000). That rule has been amended, effective January 1, 2017, and now provides specific requirements for motions to withdraw or to substitute counsel filed after a trial date has been set. Ariz. R.P. Juv. Ct. 39(C).

JUSTICE GOULD, opinion of the Court: ¶ 1 In this case we are asked to determine what constitutes an actionable claim for abuse of a vulnerable adult under the Adult Protective Services Act (APSA), A.R.S. §§ 46-451 through -459. We hold that such a claim requires proof that: (1) a vulnerable adult, (2) has suffered an injury, (3) caused by abuse, (4) from a caregiver. AR.S. §§ 46-451(A)(1)(b), -455(B). In making this determination, we abolish the four-part test for an actionable claim set forth in Estate of McGill ex rel. McGill v. Albrecht, 203 Ariz. 525, 530 ¶ 16, 57 P.3d 384 (2002). BACKGROUND ¶ 2 Because the superior court granted summary judgment, we review the facts and reasonable inferences in the light most favorable to Marika Delgado as the non-moving party. See Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12, 69 P.3d 7 (2003). ¶3 This ease arises from the death of Sandra Shaw while she was a patient at Manor Care’s skilled nursing facility in Tucson. Dr. Gordon J. Cuzner was Shaw’s primary treating physician at Manor Care. ¶4 After being treated at four different hospitals in late 2011 and early 2012, Shaw was discharged to Manor Care for physical and occupational therapy, as well as skilled nursing care. When Shaw was admitted to Manor Care in March 2012, she was in poor health. Shaw was suffering from several serious medical conditions, including chronic kidney disease, decreased kidney function, acute kidney failure, anemia, heart disease, and hypertension; she also had recently undergone surgery to remove a brain tumor and had a history of urinary tract infections. Additionally, Shaw was confined to a wheelchair and needed assistance with walking, bathing, dressing, toileting, transfers, and bed mobility. ¶ 5 Following her admission, Shaw’s condition initially improved. However, by late April 2012, her condition was deteriorating. She became confused, refused to get out of bed, and began eating and drinking less. On April 30, Dr. Cuzner ordered lab tests and a urinalysis; the results indicated that Shaw had an “early” septic infection. Nonetheless, Dr. Cuzner issued no new orders or treatment for Shaw. On the morning of May 1, Shaw’s condition worsened. She was confused, disoriented, and lethargic, and had not eaten or taken any fluids in over two days. The assistant director of nursing was notified of her condition, but no further orders or treatment were provided for Shaw. A few hours later, she died. The cause of death was sepsis. ¶ 6 Delgado, Shaw’s sister and the personal representative of her estate, filed this action against Dr. Cuzner, Manor Care, and several persons and entities that allegedly owned or were related to Manor Care (collectively, “Defendants”). Delgado alleged several claims, including a claim for both abuse and neglect of a vulnerable adult under APSA See A.R.S. § 46-451(A)(l)(b) (defining “abuse”); A.R.S. § 46-451(A)(6) (defining “neglect”). Manor Care and Dr. Cuzner moved for summary judgment on Delgado’s APSA claim. ¶ 7 The superior court granted Defendants’ motion. In making its ruling, the court applied the four-part test adopted in McGill: to be actionable abuse under APSA, the negligent act or acts (1) must arise from the relationship of caregiver and recipient, (2) must be closely connected to that relationship, (3) must be linked to the service the caregiver undertook because of the recipient’s incapacity, and (4) must be related to the problem or problems that caused the incapacity. 203 Ariz. at 530 ¶ 16, 57 P.3d 384. The court concluded that, under the fourth part of the McGill test, Shaw’s death, which was “attributable to sepsis,” was “not related [to the eondition(s) ] that [ ] caused [her] incapacity.” ¶ 8 The court of appeals reversed. Delgado v. Manor Care of Tucson, 240 Ariz. 293, 299 ¶¶ 25-26, 378 P.3d 736 (App. 2016). The court held that, under McGill, a triable issue existed as to whether Defendants’ alleged abuse “was related to the problems that caused Shaw’s incapacity.” Id. at 298-99 ¶¶ 19, 20, 23-25, 378 P.3d 736. ¶ 9 We granted review because the interpretation and application of APSA are recurring issues of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and AR.S. § 12-120.24. DISCUSSION ¶ 10 We review de novo both a grant of summary judgment, Andrews, 205 Ariz. at 240 ¶ 12, 69 P.3d 7, and issues of statutory construction, In re Estate of Wyatt, 235 Ariz. 138, 139 ¶ 5, 329 P.3d 1040 (2014). ¶ 11 Defendants argue Delgado has no actionable APSA claim because she cannot satisfy the third and fourth parts of the McGill test. They contend that Shaw’s sepsis was not “related to the problem or problems” that made her a vulnerable adult. McGill, 203 Ariz. at 530 ¶ 16, 57 P.3d 384. Rather, her sepsis was an unrelated, acute condition that developed several weeks after her admission to Manor Care. As a result, any alleged negligence by Defendants in treating Shaw’s sepsis was not “linked” to the services or treatment Defendants “undertook” because she was a vulnerable adult. Id. To assess these arguments, we consider the Court’s ruling in McGill and its continuing viability. I. The McGill Test ¶ 12 In McGill, this Court addressed whether A.R.S. § 46—461(A)(1)(b) permits an APSA claim to be based on a physician’s single act of negligence. Id. at 526 ¶ 1, 57 P.3d 384. Defendants asserted that the statute, by its terms, requires multiple acts committed over a period of time. Id. at 528-30 ¶¶ 8-15, 57 P.3d 384; see AR.S. § 46-451(A)(l)(b)(defining “[ajbuse” as an “[i]nju-ry caused by negligent acts or omissions”). The defendants also argued that negligence claims against physicians could not be brought under APSA because such claims were exclusively governed by the Medical Malpractice Act (MMA), A.R.S. § 12-561 through -573. Id. ¶ 13 In construing APSA, the Court held that “we can neither automatically limit the negligent act or omission wording of A.R.S. § 46—451(A)(1) to a series of negligent acts nor say that a single act of negligence involving an incapacitated person will never give rise to an APSA action.” Id. at 530 ¶ 16, 57 P.3d 384. However, the Court expressed concern that “interpreting APSA so as to apply to any and every single act of medical malpractice would [not] be consistent with” the legislature’s intent, because it would give rise to negligence claims that “can afflict anyone, not just the incapacitated.” Id. at 629-30 ¶ 14, 57 P.3d 384. ¶ 14 Attempting to harmonize the statutory language and the legislature’s intent, the Court formulated McGill’s four-part test. Id. at 526, 529-31 ¶¶ 1, 14-16, 21-22, 57 P.3d 384. This test limits a caregiver’s liability under APSA, requiring a victim of abuse to satisfy all four of its requirements to assert an actionable claim. Id. at 530, 531 ¶¶ 16, 22, 57 P.3d 384. ¶ 15 The McGill test has proved to be problematic. The legislature enacted APSA to protect vulnerable adults, and to further this purpose, it created a broad remedial cause of action against caregivers who, by means of abuse, neglect, or exploitation, endanger the life or health of a vulnerable adult. A.R.S. §§ 46-455(B), -455(0); see also In re Estate of Winn, 214 Ariz. 149, 151 ¶ 9, 150 P.3d 236 (2007) (APSA seeks to remedy the “evil” of abuse and neglect of vulnerable adults, and to “protect some of society’s most vulnerable persons from abuse, neglect, and exploitation.”). We generally construe such remedial statutes broadly “to effect the legislature’s purpose in enacting them.” Winn, 214 Ariz. at 150 ¶ 5, 150 P.3d 236; Wyatt, 235 Ariz. at 140 ¶ 6, 329 P.3d 1040 (same). However, the McGill test narrows the scope of a caregiver’s liability by adding requirements not expressly contained in APSA. ¶ 16 The McGill test has also been difficult to apply. As McGill recognized, “[w]e are well aware that this formulation does not provide an easy, bright-line test for judges and juries.” Id. at 530 ¶ 17, 57 P.3d 384. The test is particularly burdensome when a person, such as Shaw, suffers from multiple medical conditions. Identifying which specific medical conditions render a person vulnerable, and then relating subsequent treatment and injuries to those specific “vulnerable” conditions, is no easy task. Courts navigating their way through the McGill test have made fine distinctions which, at times, seem to be at odds with the broad protective provisions of APSA. See, e.g., Equihua v. Carondelet Health Network, 235 Ariz. 504, 507-08 ¶¶ 8-14, 334 P.3d 194 (App. 2014) (applying the McGill test, the court distinguished between hospital staffs negligence in treating plaintiffs head and neck injuries, which it determined were not actionable under APSA, from staffs negligence in monitoring plaintiffs feeding tube, which it determined was actionable under APSA). II. APSA’s Requirements for an Abuse Claim ¶ 17 In identifying the elements for an APSA claim, our principal guide is the statute’s language. Section 46-455(B) provides that a “vulnerable adult whose life or health is being or has been endangered or injured by neglect, abuse or exploitation may file an action in superior court against any person or enterprise that has been employed to provide care....” (Emphasis added,) Thus, an APSA claim is premised initially on whether a person is a “vulnerable adult.” Id. A “vulnerable adult” is defined as “an individual who is eighteen years of age or older and who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment.” A.R.S § 46-451(A)(9). ¶ 18 APSA also requires a party to show that a vulnerable adult has suffered an “injury caused by [a caregiver’s] negligent acts or omissions.” A.R.S. §§ 46-451(A)(l)(b), - 455(B). APSA defines a caregiver as a person or “enterprise” employed to provide care to a vulnerable adult, and includes care provided at a nursing home or an acute care hospital. A.R.S. § 46-455(B), 455(Q); see Wyatt, 235 Ariz. at 141 ¶ 14, 329 P.3d 1040 (APSA includes care provided at nursing homes and acute care hospitals). ¶ 19 Thus, by its terms, APSA identifies four requirements for an actionable abuse claim: (1) a vulnerable adult, (2) has suffered an injury, (3) caused by abuse, (4) from a caregiver. A.R.S. §§ 46-451(A)(1)(b), -455(B). ¶ 20 The fact that APSA identifies the requirements for an abuse claim, combined with the difficulties accompanying the four-part McGill test, prompts us to reconsider the McGill test. In particular, the third and fourth prongs of the McGill test are not found in the statute, and, when applied, have produced a great deal of confusion. ¶ 21 Defendants argue that if the McGill test is not followed, then “APSA will apply to virtually all medical malpractice cases arising from care provided to adults in inpatient healthcare institutions,” including care of “acute conditions.” To avoid this potential liability, Defendants urge us to continue following the four-part test and not expand the “boundaries” set by McGill. ¶ 22 We recognize that the broad language of APSA creates considerable overlap between medical malpractice claims arising under the MMA and abuse claims under APSA, However, we will not engage in a “narrow construction” of APSA that “thwartfs] the legislature’s goal of protecting vulnerable adults.” Wyatt, 235 Ariz. at 141 ¶ 13, 329 P.3d 1040. By its terms, APSA identifies four requirements for an actionable abuse claim. Supra, 1119. If the legislature wishes to limit the scope of APSA by adding the requirements of the McGill test, it may do so. It is not, however, our role to rewrite the statute. See Ballesteros v. Am. Standard Ins. Co. of Wis., 226 Ariz. 346, 349 ¶ 17, 248 P.3d 193 (2011) (stating “[i]f the legislature desires to add [] a requirement [to A.R.S. § 20-259.01], it may do so ... but it is not our place to rewrite the statute”). ¶ 23 Additionally, Defendants claim that based on the doctrine of legislative acquiescence, that the McGill test has been incorporated into APSA. Specifically, Defendants contend that APSA has been amended several times since the McGill test was adopted and, therefore, the legislature has tacitly approved of the test. Cf. Madrigal v. Indus. Comm’n, 69 Ariz. 138, 144, 210 P.2d 967 (1949) (discussing doctrine of legislative acquiescence); Fisher v. Kaufman, 201 Ariz. 500, 502 ¶ 12, 38 P.3d 38 (App. 2001) (same). ¶ 24 We reject Defendants’ argument. The doctrine of legislative acquiescence “is limited to instances in which the legislature has considered and declined to reject the relevant judicial interpretation.” SW Paint & Varnish Co. v. Ariz. Dep’t of Envtl Quality, 194 Ariz. 22, 25-26 ¶ 21, 976 P.2d 872 (1999). Thus, we do not presume legislative intent when a statute is amended “in ways unrelated to the judicial construction at issue” absent “some affirmative indication the legislature considered and approved our construction.” Lowing v. Allstate Ins. Co., 176 Ariz. 101, 106, 859 P.2d 724 (1993). Here, Defendants concede that none of the subject amendments concern the definition of actionable abuse under APSA. ¶25 We therefore disapprove the McGill test and hold that an actionable APSA abuse claim requires proof of the four basic elements set forth in the statute. See supra, ¶19. III. Delgado’s APSA Claim ¶ 26 Viewing the facts and all reasonable inferences in the light most favorable to Delgado, as we must, we conclude that the superior court erred in granting summary judgment in favor of Defendants. ¶ 27 Shaw qualifies as a vulnerable adult. She was a frail seventy-four-year-old woman who, at the time of her admission, needed assistance in virtually every daily activity of life. There is no dispute that Man- or Care qualifies as an “enterprise” employed to provide care to Shaw, and that Dr. Cuzner was her primary physician at Manor Care. Additionally, in her capacity as personal representative of Shaw’s estate, Delgado properly alleges damages for Shaw’s injuries. A.R.S. § 46-455(P); In re Guardianship/Conservatorship of Denton, 190 Ariz. 152, 157, 945 P.2d 1283 (1997) (holding that under APSA, representatives of vulnerable adult abuse victims “may recover damages for the pain and suffering endured by the victims, notwithstanding death of the victim”). ¶28 Delgado has also presented a triable issue as to whether Manor Care abused Shaw, thereby causing her death. Delgado submitted medical records and the preliminary expert affidavits of Nurse Kathleen Hill-O’Neil and physician Leonard S. Williams showing that due to Shaw’s serious medical conditions, she could not care for herself and required close monitoring and medical attention to ensure her safety and well-being. Nurse Hill-O’Neil opines that the nursing staff at Manor Care breached the applicable standard of care by failing to notify Dr. Cuzner about Shaw’s deteriorating condition and also by failing to provide necessary treatment and care as her condition worsened. See Cornerstone Hosp. of Se. Ariz., L.L.C., v. Marner, 231 Ariz. 67, 74 ¶ 21, 290 P.3d 460 (App. 2012) (holding that plaintiffs estate alleged a viable claim for APSA abuse based on allegations that the decedent received inadequate “nursing and medical services” while at defendant’s long term acute-care facility, thereby causing the decedent to become dehydrated, malnourished, and develop pressure sores that became infected). ¶ 29 The superior court also erred in granting summary judgment in favor of Dr. Cuzner. Dr. Williams opines that Dr. Cuzner breached the standard of care by failing to properly treat Shaw’s sepsis. Dr, Williams also concludes that Dr. Cuzner’s breach of the standard of care caused Shaw “unnecessary pain and suffering and contributed to her death.” ¶ 30 Dr. Cuzner asks us to address his argument that he should not be held liable irrespective of any potential liability on the part of Manor Care. However, throughout this litigation, including briefing in his petition for review, Dr. Cuzner joined in Manor Care’s argument that there was no viable APSA claim under the McGill test because Shaw’s death was not related to the conditions causing her incapacity. Thus, our analysis regarding Dr. Cuzner is limited solely to the legal and factual arguments raised by Manor Care, and we decline to address his arguments not raised below. ¶31 Defendants argue that Delgado has failed to present any admissible evidence showing abuse. Specifically, Defendants claim the superior court granted them motion to strike the affidavits of Nurse Hill-O’Neil and Dr. Williams because they were conclusory and did not establish their qualifications to testify as experts. See A.R.S. § 12-2603 (preliminary expert affidavits); A.R.S. § 12-2604 (qualifications for medical experts in medical malpractice claims). However, we can find no order in the record striking the affidavits, See Delgado, 240 Ariz. at 299 ¶ 22, n.10, 378 P.3d 736. Thus, we leave determination of the admissibility of these affidavits for the superior court to resolve on remand. ¶ 32 In sum, on this record, we conclude the superior court erred in granting summary judgment in favor of Defendants on Delgado’s APSA abuse claim. In addition, like the court of appeals, because we reverse the superior court’s grant of summary judgment based on Delgado’s abuse claim, we do not decide whether Delgado alleged an actionable claim for neglect pursuant to APSA. AR.S. § 46-451(A) (6). Delgado, 240 Ariz. at 299 ¶ 25, n.11, 378 P.3d 736. CONCLUSION ¶33 Accordingly, we vacate the court of appeals’ opinion, reverse the superior court’s grant of summary judgment, and remand this case to the superior court for further proceedings. . Cf. 2009 Ariz. Sess. Laws, ch. 119, §§ 4-10 (1st Reg. Sess.) (providing that a "vulnerable adult” includes an "incapacitated person,” and amending all references in APSA to "incapacitated or vulnerable adult” to "vulnerable adult”).

OPINION MILLER, Judge: ¶ 1 Defendant UNS Electric appeals from the trial court’s grant of a motion for new trial in favor of plaintiffs Vareo and RW Warehouse Corporation, after the jury ruled in favor of UNS. The ruling was based on misconduct by UNS’s counsel for examining witnesses regarding excluded evidence, as well as disclosure violations. For the following reasons, we affirm. Factual and Procedural Background ¶2 The lawsuit arose out of a 2013 fire that destroyed a warehouse owned by Vareo and rented by RW Warehouse Corporation, hereinafter collectively referred to as “Var-eo.” Vareo alleged the fire originated on a utility pole negligently installed and maintained by UNS in close proximity to the warehouse. Specifically, Vareo alleged UNS’s negligence resulted in electrical “arcing” that caused the fire. ¶ 3 Vareo filed motions in limine to preclude evidence that a cigarette butt was found on the site near the fire origination, that Vareo did not possess property insurance, and certain opinions of UNS fire expert Keith Paffrath. The trial court granted the motion about the cigarette butt and lack of insurance, but reserved ruling on the admissibility of Paffrath’s testimony “pending proof of proper foundation,” The minute entry does not reflect the court’s reasoning, and UNS did not designate a transcript of the motions hearing as part of the appellate record. We presume the missing transcript would support the court’s ruling, Myrick v. Maloney, 235 Ariz. 491, ¶ 11, 333 P.3d 818, 822 (App. 2014); further, we rely on the court’s statements—made throughout trial— as to the rulings, their scope, and the court’s rationale. ¶ 4 On the second day of trial, UNS cross-examined an employee who witnessed the fire, asking him if he and others smoked at the warehouse. After objection by Vareo, the trial court reminded the parties that its motion-in-limine ruling was based on the fact that UNS was not expected to offer a witness who could “provide a reasonable basis for the jury to conclude that there was some other cause of the fire, whether it was smoking or anything else”; therefore, evidence of any specific people smoking or of a cigarette butt was not relevant. UNS stated it intended instead to introduce evidence of smoking to show a violation of the fire code, but the court still sustained the objection. ¶ 5 Resuming cross-examination, UNS immediately asked the witness about where smoking is allowed, Vareo objected, and the trial court sustained the objection. UNS then asked where smoking is not allowed, Vareo objected, and the court sustained the objection. At a bench conference, UNS argued that an expert would testify that smoking in certain areas would have been a violation of the fire code. The court again sustained the objection, concluding fire code violations were irrelevant unless there was testimony that adherence to the fire code would have ameliorated the fire. Later, the court further explained its basis for precluding testimony about smoking and the fire code as both lacking relevance under Rule 401, Ariz. R. Evid., and more prejudicial than probative, confusing the issues, and confusing to the jury pursuant to Rule 403, Ariz. R. Evid. ¶ 6 The next day during direct examination, Varco’s expert was asked, “There is no other evidence of anything else starting the pallets on fire other than the sparking; is that correct?” The expert agreed. During cross-examination, UNS asked about smoking areas at the warehouse and whether smoking is a frequent cause of fires. Vareo objected, but the trial court overruled the objection on the ground that Vareo opened the door to questions about the methodology the expert had used to eliminate other causes of the fire. The court still precluded questions regarding the cigarette butt because there was no evidence the fire began with smoking. ¶ 7 At the start of UNS’s case in chief, it began by introducing deposition testimony of a Vareo employee. Vareo unsuccessfully objected based on a lack of pretrial designation. Several pages into the testimony, UNS’s counsel read four questions and answers regarding who smoked at the warehouse and what the warehouse smoking policy was. Var-eo eventually objected, arguing that UNS had improperly introduced testimony regarding smoking. The trial court sustained the objection. ¶ 8 The absence of property insurance was the source of continuing dispute throughout trial, despite a pretrial ruling precluding reference to it. UNS argued in its written response and throughout trial that a lack of insurance showed a lack of inspection and a general failure to follow fire codes. During trial, the trial court sustained objections involving insurance, noting testimony regarding fire code violations was irrelevant and more prejudicial than probative. The court separately explained it had precluded UNS from offering proof that the warehouse had never been permitted or inspected, based on lack of foundation as well as relevance. ¶ 9 Nonetheless, on the fifth day of trial, UNS asked the owner if the building had a certificate of occupancy, to which Vareo objected. The trial court noted that it had reviewed the audio recording of the motions hearing and found this issue fell under compliance with local fire codes, and it was therefore still inadmissible. UNS argued its expert, Paffrath, would testify that had the fire codes been followed, the fire would have remained outside the building. The court concluded UNS could try to establish relevance and lay a foundation with Paffrath, but noted there was still a pending issue involving late disclosure with respect to Paffrath’s testimony about fire codes. ¶ 10 Finally, during Paffrath’s testimony, UNS asked, “Do you understand that the building was—was never inspected?” Vareo objected and the trial court reiterated that fire code violations were irrelevant absent an opinion connecting violations to causation. The court further stated it did not “appreciate [UNS] asking the question, is it your understanding this thing has never been inspected, in anticipation of [Varco’s] objection to this question.” The court reiterated the basis of its ruling on the motion in limine, again stating that it reviewed the audio recording. The court had the court reporter read back the question, concluded it was leading, and stated that it found the actions of UNS’s counsel to be intentional. The court inquired about whether Vareo wanted a curative instruction, but Vareo did not ask for one and the court did not give one. ¶ 11 The jury found in favor of UNS, and Vareo filed a motion for new trial arguing misconduct by UNS’s counsel caused them unfair prejudice. After a hearing, the trial court granted the motion in an unsigned minute entry. UNS moved for reconsideration of the order for a new trial, and the court issued a detailed twenty-one page signed order reaffirming its ruling and denying the motion for reconsideration. UNS timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(5)(a). Motion for New Trial ¶ 12 UNS generally argues the trial court abused its discretion by granting the motion for new trial because it did not commit misconduct, Vareo did not suffer prejudice, and the court did not “consider whether the jury’s verdict was correct.” The trial court has broad discretion in ruling on a motion for new trial. See Leavy v. Parsell, 188 Ariz. 69, 72, 932 P.2d 1340, 1343 (1997). A trial court abuses its discretion when it commits an error of law, or when the record lacks substantial evidence to support the court’s finding. Romer-Pollis v. Ada, 223 Ariz. 300, ¶ 12, 222 P.3d 916, 918-19 (App. 2009). Further, “[w]e review an order granting a new trial under a more liberal standard than an order denying one.” Englert v. Carondelet Health Network, 199 Ariz. 21, ¶ 5, 13 P.3d 763, 767 (App. 2000), quoting State Farm Fire & Cas. Co. v. Brown, 183 Ariz, 518, 521, 905 P.2d 527, 530 (App. 1995). This is because the denial may be a final disposition of the rights of the parties, and because “we recognize that trial judges disfavor new trial motions and will generally grant them only with great caution.” Liberatore v. Thompson, 157 Ariz. 612, 620, 760 P.2d 612, 620 (App. 1988). ¶ 13 When ruling on a motion for new trial based on attorney misconduct, the trial court “must decide whether the misconduct materially affected the rights of the aggrieved party,” and reversal is only required “when it appears probable that the misconduct ‘actually influenced the verdict.’ ” Leavy, 188 Ariz. at 72, 932 P.2d at 1343, quoting Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 454, 652 P.2d 507, 527 (1982). Although there is no presumption of prejudice or lack thereof, “[i]f the misconduct is serious ... the judge should resolve any doubt in favor of the party aggrieved.” Id. Misconduct ¶ 14 UNS argues the trial court abused its discretion when it labeled several occurrences during trial as misconduct. It first contends it did not commit misconduct when asking generally about smoking because the pretrial ruling was limited to testimony about a single cigarette butt. Because we presume the missing transcript of the motions hearing supports the court’s ruling as it pertains to smoking, Myrick, 235 Ariz. 491, ¶ 11, 333 P.3d at 822, UNS’s claim that the ruling was limited to preclusion of a specific cigarette butt is not supported by the record. The court explained on the second day of trial that the ruling regarding the cigarette butt broadly addressed smoking. Despite this explanation and confirmation of the scope of its pretrial ruling, UNS asked questions about smoking at least three more times, including reading deposition testimony on the same topic. ¶ 15 UNS also argues there was no misconduct because the trial court permitted questioning into smoking multiple times. First, UNS cites the court’s rejection of Var-co’s non-specific objection to UNS’s initial questions about smoking before counsel ap-proaehed the bench and the court reviewed its motion in limine ruling. UNS also cites the court’s failure to stop UNS’s counsel from reading deposition excerpts regarding smoking until after the fourth question had been asked. These instances do not indicate the court changed its ruling on its motion in limine and intended to permit such questioning; rather, they indicate Vareo did not quickly object to the precluded testimony, which was understandable because UNS had not provided pretrial transcript designations. UNS also relies on the fact that it was allowed to inquire into Varco’s expert’s methodology in excluding smoking as a cause; however, the court found that testimony admissible only because Vareo opened the door when its expert testified that he had ruled out other causes. Importantly, the court expressly stated Vareo had not opened the door to all questioning about smoking. Substantial evidence supports the court’s finding that UNS repeatedly violated its motion in limine ruling regarding smoking. ¶ 16 UNS next argues that the trial court abused its discretion to the extent it found misconduct based on the question it asked of Paffrath, its expert, on the seventh day of trial: “Do you understand that the building was—was never inspected?” UNS contends the court ruled that UNS could ask Paffrath about the inspection, and the question was not asked in bad faith. ¶ 17 As with the smoking-related questions, UNS contends the trial court ruled that Paffrath could be asked about whether a certificate of occupancy had been obtained. Again, we presume the missing transcript supports the court’s moling. Myrick, 236 Ariz, 491, ¶ 11, 333 P.3d at 822. Moreover, during a hearing on motions in limine, the issue of a permit and certificate of occupancy was raised and the court precluded UNS from addressing the issue of “pennít[ing] and inspection]” because of a lack of foundation, adding that it was also irrelevant in that it was “remote in connection with the facts.” On the second day of trial, the court also explained fire code violations were not relevant “unless someone [was] going to tie the violation of the fire code to either the cause of the fire” or increased damages. On the fifth day of trial, UNS asked a witness about a certificate of occupancy, Vareo objected, and the court noted that UNS had not yet explained how the fire codes as related to inspections were relevant. Despite these repeated statements by the court, UNS asked its question on the seventh day of trial. ¶ 18 UNS also argues it had laid a proper foundation for the question, and that the trial court erred as a matter of law in finding there was none. It is clear from the context of the transcript, however, that the court used the word “foundation” in a general sense to explain the absence of a connection between building inspection and fire causation. Moreover, the question was improper on its face because the court had previously deemed the issue irrelevant until UNS could establish a link to causation or damages. ¶ 19 Finally, UNS argues the leading question alone could not justify the new trial because it was “inconsequential” and permissible. As noted above, the trial court had not yet concluded the question was permissible. Moreover, the question itself strongly indicated to the jury that the building was never inspected. Having already repeated its reasoning for preclusion multiple times during the course of the trial, the court determined experienced counsel’s actions in asking a leading question were intentionally designed to avoid the expected objection by Vareo. Substantial evidence, based on UNS’s repeated course of conduct detailed above, supports this finding. Prejudice ¶ 20 UNS also contends the misconduct cited by the trial court was not prejudicial. Prejudice occurs when the misconduct (1) is significant, such as knowing, deliberate violations of court orders; (2) “involves essential and important issues”; and, (3) is “apparently successful in achieving its goals.” Leavy, 188 Ariz. at 73, 932 P.2d at 1344. The trial judge is in the best position to assess prejudice because he has “had the unique opportunity to hear the testimony and argument, observe its effect on the jury, and determine through his observations that the trial ha[s] been unfairly compromised.” Cal X-Tra v. W.V.S.V. Holdings, L.L.C., 229 Ariz, 377, ¶ 92, 276 P.3d 11, 39 (App. 2012). “[I]n contrast, we have only a cold record, which does not convey voice emphasis or inflection, or allow us to observe the jury and its reactions.” Id. ¶ 21 UNS generally argues the misconduct did not rise to the level of what occurred in Leavy. In that case, which arose out of an auto accident, the tidal court explicitly precluded a defense witness from testifying about the credibility of another witness and precluded the defendant from raising the “seatbelt defense.” Leavy, 188 Ariz. at 70-71, 932 P.2d at 1341-42. Defense counsel violated the witness and seatbelt orders twice during opening statements and once during questioning of a witness. Id. at 71, 932 P.2d at 1342. Counsel also mentioned alcohol at least eleven times throughout the trial, despite the absence of evidence regarding alcohol use. Id. The court denied a motion for new trial and our supreme court reversed, concluding defense counsel intentionally sought to imply the plaintiff was negligent by failing to use a seat belt and by using alcohol, and to bolster the credibility of a key witness, which were knowing violations of court orders. Id. at 71-73, 932 P.2d at 1342-44. As in heavy, the issues raised here were key to the case, and UNS repeatedly raised them in front of the jury despite their having been precluded by the court. See id. ¶22 UNS also argues no individual instance of misconduct was prejudicial. Even if UNS is correct about some of the individual events, the cumulative actions of counsel may support the granting of a motion for new trial. See Sanchez v. Stremel, 95 Ariz. 392, 395, 391 P.2d 557, 559 (1964) (single instance of improper argument in closing plus prejudicial misconduct throughout trial justified new trial); see also Grant, 133 Ariz. at 452-53, 652 P.2d at 525-26 (reviewing cases and finding misconduct “almost invariably ... has been combined with other, serious error, the cumulative effect of which is to compel the conclusion that there was prejudice”). We address the more significant instances. ¶23 Regarding smoking, UNS contends the statements made were brief, peripheral, and not argued before the jury. However, on the second day of trial, UNS asked a witness twice about smoking—once immediately after having been reminded that such questions were precluded by the ruling on the motion in limine. On day six, UNS’s counsel read into the record four deposition questions and answers regarding smoking. UNS made repeated references before the jury to smoking, suggesting it was a potential cause of the fire, ¶ 24 UNS also argues the trial court erred in relying on two instances of late disclosure to support its ruling. UNS contends the related discussions cannot be considered “misconduct” because they occurred out of the presence of the jury, citing Grant. But Grant states a new trial should be granted only when misconduct probably influenced the verdict or materially affected the rights of the other party and does not state that all of the effects of misconduct must be obvious to the jury. See 133 Ariz. at 454, 652 P.2d at 527. Here, the court concluded UNS’s late disclosure “regularly disrupted] opposing counsels’ ability to focus on presenting their case,” in order to gain an unfair advantage. The trial interruptions to discuss disclosure issues are also apparent in the record. Reasonable evidence supports the court’s finding the misconduct was significant, deliberate, and directed at key issues of causation and damages. ¶25 Finally, UNS argues the trial court erred by granting the new trial without finding “that the jury verdict was wrong.” To the extent UNS is arguing the court failed to find the misconduct was successful in achieving its goals, as required by heavy, 188 Ariz. at 73, 932 P.2d at 1344, the court explicitly made such a finding in its final judgment, and it is supported by reasonable evidence. UNS also contends the prejudice ruling required the court to find “that the jury has reached a seriously erroneous result and it is necessary to set aside the verdict to avoid a miscarriage of justice,” citing State v. Fischer, 238 Ariz. 309, ¶ 22, 360 P.3d 105, 111 (App. 2015). Fischer, however, involved a motion for new trial based on the verdict being “contrary to law or to the weight of the evidence,” under Ariz. R. Crim. P. 24.1(c)(1). 238 Ariz. 309, ¶¶ 17, 25, 360 P.3d at 109, 111. Although that rule is similar to a civil motion for new trial under Rule 59(a)(1)(H), Ariz. R. Civ. P., the motion in this case was granted on the basis of the prevailing party’s miscon duct pursuant to Rule 59(a)(1)(B), Ariz. R. Civ. P. Such misconduct does not require a finding that the jury has reached an erroneous result; indeed, misconduct itself may make it impossible to determine the effect on the outcome. See Leavy, 188 Ariz. at 73, 982 P.2d at 1344. The disclosure issues, repeated references to smoking, and repeated references to fire codes all support the court’s conclusion that Vareo was prejudiced by the actions of UNS. See id. Disposition ¶ 26 For the foregoing reasons, we affirm the trial court’s ruling. Vareo seeks attorney fees and costs pursuant to A.R.S. § 12-349 and Rule 25, Ariz. R. Civ. App. P., arguing the appeal was frivolous and UNS engaged in superficial analysis in its briefing. We do not find UNS’s arguments frivolous and superficial; therefore, we deny the request for attorney fees. . UNS is represented by different counsel in this court. . See Ariz. R. Civ. App. P, 11(c)(1)(A) (appellant must order transcripts necessary tor proper consideration on appeal if not already in official record). . The trial court ultimately ruled that any evidence of fire code violations was inadmissible due to late disclosure. . Compliance with Rule 54(b) or (c), Ariz. R. Civ. P„ is not required in these circumstances. See Brumett v. MGA Home Healthcare, L.L.C., 240 Ariz. 420, ¶ 25, 380 P.3d 659, 670 (App. 2016). . We note at the outset that Vareo frequently has failed to cite to the record in the analysis section of its answering brief, as required by Rule 13(a)(7)(B) and (b)(1), Ariz. R. Civ. App. P. We could find its arguments waived due to these omissions, but in our discretion we consider them, because the trial court’s ruling included extensive citations to the record. Cf. Delmastro & Eells v. Taco Bell Corp,, 228 Ariz. 134, n.2, 263 P.3d 683, 686 n.2 (App. 2011) (waiver for failure to comply with Rule 13(a) discretionary). . For example, on day two, UNS asked a former employee to use an exhibit to explain where smoking was permitted at the warehouse. After Vareo objected as to relevance and the trial court sustained, UNS then asked, "Is there an area where smoking is not allowed?” On day six, counsel for UNS read into the record excerpts of the deposition of a warehouse employee, which included questions and answers about if any employees smoked, who smoked, if there was a policy about smoking in the warehouse, and if employees were allowed to smoke outside the warehouse. . UNS also argues the trial court appeared to have granted the motion for new trial based solely on this question, relying on “the fact that the Court had not exhibited any particular frustration or difficulty with UNS’s questioning concerning smoking.” That the court withheld expressing "frustration” while repeatedly restating its reasoning for its motion in limine ruling does not indicate that earlier incidents could not have been part of the court’s calculus in granting the motion for new trial. Cf. Liberatore, 157 Ariz. at 621, 760 P.2d at 621 (court’s earlier denial of mistrial did not preclude grant of new trial based on conclusion, "informed by the verdict, that misconduct had cumulatively colored the result”). . As UNS notes, the question regarding a permit also raised a hearsay issue that the trial court referred to as “foundational,” but UNS withdrew that line of questioning and the jury never heard it. . UNS additionally claims that deficiencies or incorrect statements in Varco’s motion for new trial led the trial court to err in its ruling, and it disputes the characterization and inclusion of certain trial excerpts cited in the motion, The court, however, issued its twenty-one page ruling after reviewing "the entire transcript of the eight trial days, as well as the court record of all prior proceedings”; we focus only on arguments that connect any claimed errors in the motion itself to those in the ruling. . UNS argues—without any support—that the "quick, unanimous verdict” it obtained also demonstrates the case was not "close.” Even were this argument not waived for failure to cite authority, see Polanco v. Indus. Comm’n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 2007), it would fail because the jury determinations— what caused the fire or what caused it to spread—were the subjects of UNS’s misconduct. . UNS argues one of the disclosure rulings could not support misconduct because the trial court should not have precluded the testimony. But UNS does not dispute that the disclosure was indeed after the deadline, which was the court's basis for finding misconduct. . UNS argues we may consider Varco's failure to specifically respond to this argument in its answering brief a confession of error. However, in our discretion, we choose not to do so. See Perry v. Ronan, 225 Ariz. 49, n.1, 234 P.3d 617, 620 n.1 (App. 2010).

OPINION SWANN, Judge: ¶ 1 Andre Lee Juwaun Maestas, a medical-marijuana cardholder (“cardholder”), appeals his conviction for possession of marijuana. His appeal challenges the constitutionality of A.R.S. § 15-108(A), which modifies the Arizona Medical Marijuana Act (“AMMA”) by criminalizing possession of medical marijuana by cardholders on public college and university campuses. The AMMA does not prevent property owners (including the state) from prohibiting medical marijuana use on their property. But because A.R.S. § 15-108(A) criminalizes medical marijuana use, it does not further the purpose of the AMMA. Accordingly, § 15-108(A) violates the Voter Protection Act (“VPA”) and we hold it unconstitutional. We do not, however, hold that public colleges and universities are required to allow marijuana use, even by cardholders, on campus. FACTS AND PROCEDURAL HISTORY ¶ 2 An Arizona State University police officer arrested Maestas for obstructing a public thoroughfare after observing him sitting in the road in front of his dormitory on the university campus. He searched Maestas and found a valid Arizona medical marijuana card in his wallet. The officer asked Maestas if he had marijuana in his dorm room, and Maes-tas admitted he did. The officer obtained a search warrant, searched the dorm room, and found two envelopes containing 0.4 grams of marijuana, an allowable amount for a cardholder under A.R.S. § 36-2801(l)(a)(i). ¶ 3 Maestas was charged with obstructing a highway or other public thoroughfare, a class 3 misdemeanor, and possession or use of marijuana, a class 6 felony. Before trial, Maestas moved to dismiss the possession charge, arguing that as a cardholder, his possession of marijuana was lawful under the AMMA. The state opposed the motion, arguing that A.R.S. § 15-108(A) prohibits even cardholders from possessing marijuana on public college and university campuses. After the superior court denied the motion, the state amended the indictment to designate the drug charge a misdemeanor. ¶ 4 At his bench trial, Maestas was convicted on both counts. The superior court suspended sentencing and placed Maestas on probation for one year. The court also imposed a fine on the drug charge. Maestas appeals his conviction for the drug charge. DISCUSSION ¶ 5 Maestas contends his conviction on the drug charge should be reversed because the AMMA allows him to possess marijuana in his dorm room. He argues that § 15—108(A), which removes the criminal protections of the AMMA on public college and university campuses, is unconstitutional. We review questions of statutory interpretation and constitutional issues de novo. State v. Darn, 220 Ariz. 351, 369, ¶ 96, 207 P.3d 604 (2009). Statutes are presumed to be constitutional. Indus. Comm’n v. Brewer, 231 Ariz. 46, 49, ¶ 11, 290 P.3d 439 (App. 2012). Maestas, as the challenging party, bears the burden of overcoming that presumption. Cave Creek Unified Sch. Disk v. Ducey, 233 Ariz. 1, 5, ¶ 11, 308 P.3d 1152 (2013). I. LEGISLATIVE HISTORY ¶ 6 In November 2010, Arizona voters approved the AMMA, See A.R.S. §§ 36-2801 to -2819. The purpose of the AMMA is to decriminalize possession and use of marijuana for medicinal purposes. Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 122-23, ¶¶ 7, 17, 347 P.3d 136 (2015); see also 2010 Proposition 203, § 2(G) (stating that “the purpose of this act is to protect patients with debilitating medical conditions ... from arrest and prosecution, criminal and other penalties ... if such patients engage in the medical use of marijuana”). As relevant here, the AMMA’s protection against criminal liability applies everywhere within the state of Arizona except on school busses; on any preschool, primary, or secondary school grounds; or in any correctional facility. A.R.S. § 36-2802(B). ¶ 7 In 2012, the Arizona Legislature modified the AMMA by prohibiting marijuana possession and use in additional places. See 2012 Ariz. Sess. Laws, ch. 159, §§ 3, 4 (2d Reg. Sess.) (codified at AR.S. § 15-108). This statute provides, in pertinent part: [A] person, including a cardholder ..,, may not lawfully possess or use marijuana on the campus of any public university, college, community college or postsecond-ary educational institution. A.R.S. § 15-108(A). Absent this provision, Maestas would not be subject to prosecution for possession of marijuana. A.R.S. § 36-2811(B)(1). II. SECTION 15-108(A) VIOLATES THE VOTER PROTECTION ACT ¶8 The sole issue on appeal is whether § 15-108(A) violates the Voter Protection Act, Ariz. Const, art, 4, pt. 1, § 1(6). The VPA is a provision of the Arizona constitution that limits the Legislature’s authority to repeal or modify laws enacted by voters in or after the November 1998 general election. Cave Creek Unified Sch. Dist., 233 Ariz. at 4, ¶ 9, 308 P.3d 1152; Ariz. Const. art. 4, pt. 1, § 1, Historical Notes. The VPA prohibits the Legislature from amending a voter-passed initiative unless, inter alia, the amendment “furthers the purposes” of the initiative. Ariz. Const, art. 4, pt. 1, § 1(6)(C). Maestas contends that § 15-108(A) does not further the AMMA’s purpose of protecting cardholders from criminal and other penalties. We agree. A. The Constitutionality of § 15-108(A) Is a Justiciable Question. ¶9 The state first argues that the prohibition of marijuana on public college and university campuses is a nonjusticiable political question because permitting marijuana use “would cause the schools] ... to lose a monetary or licensing related benefit under federal law or regulations.” A nonjusti-ciable political question exists “where there is ⅛ textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.’ ” Nixon v. United States, 506 U.S. 224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (citation omitted); see also Forty-Seventh Legislature v. Napolitano, 213 Ariz. 482, 485, ¶ 7, 143 P.3d 1023 (2006) (applying the same standard in Arizona courts). But the issue presented by this case is narrow, and does not implicate the concerns identified by the state. ¶ 10 The AMMA expressly does not require “[a]ny person or establishment in lawful possession of property to allow a guest, client, customer or other visitor to use [or possess] marijuana on or in that property.” A.R.S. §§ 36-2814(A)(2) (describing acts not required), -2801(9) (defining “medical use” to include possession), The Legislature is therefore free to bar the use and possession of marijuana on public college and university campuses to protect federal funding—or for any other reason. The question in this case is whether the Legislature has the authority to designate additional areas where cardholders, otherwise in compliance with the AMMA, are subject to criminal prosecution for possessing marijuana. B. The Legislature May Not Criminalize Cardholders’ Possession of Marijuana Except in the Places Specified in the AMMA ¶ 11 In interpreting a voter-approved measure, we give effect to “the intent of the electorate that adopted it,” and in doing so, we interpret the words according to “their natural, obvious and ordinary meaning.” Cave Creek Unified Sch. Dist., 233 Ariz. at 6-7, ¶ 21, 308 P.3d 1152 (citations omitted). When the language is clear and unambiguous and thus subject to only one reasonable meaning, we apply the language without resort to other means of statutory construction. Calik v. Kongable, 195 Ariz. 496, 498, ¶ 10, 990 P.2d 1055 (1999). ¶ 12 As relevant here, the AMMA “does not prevent the imposition of any civil, criminal or other penalties for ... [possessing or engaging in the medical use of marijuana: 1. On a school bus. 2. On the grounds of any preschool or primary or secondary school, 3. In any correctional facility.” A.R.S. § 36-2802(B). “Generally, when the [Legislature expresses a list, we assume the exclusion of items not listed.” State v. Ault, 157 Ariz. 516, 519, 759 P.2d 1320 (1988). By specifically exempting only pre-, primary- and secondary-school grounds from its protections, the AMMA offers no textual support for the notion that otherwise lawful use of marijuana on college or university campuses can be made criminal. ¶ 13 By enacting A.R.S. § 15-108(A), the Legislature modified the AMMA to re-criminalize cardholders’ marijuana possession on college and university campuses. The statute does not further the purposes of the AMMA; to the contrary, it eliminates some of its protections. See Cave Creek Unified Sch. Dist., 233 Ariz. at 7-8, ¶ 25, 308 P.3d 1162 (holding that a statute that cannot be harmonized with a voter-approved law violates the VPA). ¶ 14 The state argues that the anti-discrimination provision’s federal-funding exception in § 36-2813(A) gives the Legislature authority to prohibit cardholders from using marijuana on college and university campuses. This provision generally prohibits schools and landlords from penalizing a cardholder based “solely [on] his status as a cardholder.” AR.S. § 36-2813(A), But schools and landlords may discriminate to protect federal monetary or licensing benefits. Id. While this exception is an affirmative defense to a discrimination claim, nothing in the plain language of the statute authorizes criminalization of cardholders’ possession of marijuana on college or university campuses, ¶ 15 Like any other landowner, the state may regulate what items or materials may be brought onto its property. AR.S. § 36-2814(A)(2). To the extent a person violates such rules or prohibitions, the state can have the offending party removed or charged with trespassing. AR.S. § 13-1502(A)(1); see also AR.S. § 13-2911(D) (providing for enforcement of rules of educational institutions governing conduct of persons on property). If the state finds it necessary to protect federal funding by prohibiting medical marijuana on public college and university campuses, then the AMMA does not stop it from creating such policies. Nor does the AMMA prohibit the Legislature from enacting non-criminal statutes to ensure the absence of medical marijuana on college and university campuses. CONCLUSION ¶ 16 Because AR.S. § 15-108(A) does not further the purpose of the AMMA, we hold that is unconstitutional under the VPA and vacate Maestas’s conviction for possession of marijuana.

PHELPS, Justice. This is an action for damages which plaintiff-appellee, Velma B. Ruess claims to have sustained as the result of certain slanderous statements alleged to have been made concerning her by defendants-appellants Sarah Horn and Marian Horn. From a judgment in the sum of $25,058 and from an order denying their motion for a new trial, defendants appeal. The complaint sets up six separate causes of action. It is alleged in the first cause of action that on May 20, 1948, defendant Sarah Horn falsely and maliciously spoke and published words of and concerning the plaintiff to one Belle Brooks in which she in substance charged plaintiff with theft. The evidence in support of this claim is to the effect that the statements were in fact made by both defendants. The second cause of action charges that on May 17, 1948, defendant Marian Horn falsely and maliciously spoke and published words of and concerning plaintiff to Frances Shiff Segal in which she in substance accused plaintiff of the theft of a dress from the store of defendants. The third and fourth causes of action charge that on the 20th and 25th days of May, 1948, respectively defendant Marian Horn did falsely and maliciously speak and publish words to Frances Shiff Segal of and concerning plaintiff which in effect charged plaintiff with two separate thefts from the store of defendants. The fifth cause of action charges that defendant Sarah Horn falsely and maliciously spoke words of and concerning the plaintiff to Amy Pence in the presence of Maud Davis which in substance accused plaintiff of theft from the store of defendants. It is alleged in each of these counts that these accusations were made by the defendants acting in concert and conspiracy with each other or in furtherance of a definite plan agreed upon between them. The sixth cause of action' is based upon a claim for commissions plaintiff alleges she earned as a sales clerk during her employment with defendants. The answer denies generally and specifically each and all the allegations of the complaint. Plaintiff, in her complaint, asked for both actual and punitive damages in the first five causes of action. Evidence was presented and instructions were given to the jury relating to both. The verdicts submitted to the jury, however, did not provide for a separate assessment of punitive damages and consequently damages were awarded in each of such causes of action in the lumip sum of $5,000, and on the sixth cause of action, the verdict was returned in the sum of $58 as prayed for. Defendants have presented for our consideration four separate assignments of error based upon the failure of the trial court to grant their motion for a new trial for the reasons: 1. The verdicts were excessive, not not justified by the law and evidence, and given under the influence of passion and prejudice. 2. That proof of damages is wholly lacking and the verdicts do not find any general or compensatory damages upon which to base an award of punitive damages. 3. That the verdicts are contrary to the pleading, to the law and evidence, and awarded damages against both defendants in each of the first five causes of action. 4. That the instructions improperly instructed the jury as to the relation between actual and punitive damages, that plaintiff was slandered by Sarah and Marian Horn and that plaintiff must prove that defendant or defendants spoke the alleged words. We believe that a disposition of assignment No. 1 may be more appropriately made after the other questions of law have been settled. We will therefore first consider assignment No. 2. We cannot agree with the contention that proof of damages is wholly lacking. Plaintiff proved by different witnesses that defendants separately and in the presence of each other made statements to such witnesses which in substance accused plaintiff of theft of dresses from their store. No other construction can be placed upon the language used and it was so understood by the persons to whom the accusations were made. Such words are actionable per se, 53 C.J.S., Libel and Slander, § 70, Note 81, and it is not necessary under such circumstances to either allege or prove special damages. We held in Conard v. Dillingham, 23 Ariz. 596, 206 P. 166, 168, that: “ * * * when the uttering of words slanderous per se is shown, and they are not proven to have been true, there being no contention that their communication was privileged, the jury’s duty to return a verdict for the plaintiff in some amount is not open to question, * * (Citing cases.) The court said in such cases damages are implied and that every person is presumed to intend the natural and probable consequences of his own acts. We do not believe the records justify the further contention in this assignment of error that the verdicts do not find any general or compensatory damages upon which to base an award of punitive damages, nor do we believe defendants are in a position to complain. In the first place the verdicts appear upon their face to be, not for punitive damages, but for actual damages. Secondly, if the verdicts submitted by the trial court to the jury did not provide for the segregation of actual and punitive damages so that eacfc might be definitely known, defendants’’ duty was to ask for such separation before-they were submitted to the jury. Having" failed to do so they may not now be heard to complain. In any event the failure to segregate them constitutes only .an error in form rather than of .substance. Clark v. McClurg, 215 Cal. 279, 9 P.2d 505, 81 A.L.R. 908. In that case the verdict was for punitive damages but the court held that inasmuch as the jury found malice in fact it necessarily found that appellant maliciously uttered and published the slanderous statements charged (and necessarily that the plaintiff was damaged in law). In Courtney v. Blackwell, 150 Mo. 245, 51 S.W. 668, the jury found for plaintiff in an action for slander and assessed punitive damages in a fixed amount. The complaint alleged the words were uttered maliciously etc., and instructions were given on both actual and punitive damages. The court held that because of some mischance in the form of the verdict in failing to leave a place thereon for the separate assessment of actual damages and the verdict returned was in one lump sum as punitive damages this did not justify the reversal of the case; that both the evidence and pleadings were sufficient to warrant recovery of both actual and punitive damages and that the error was one of form and not of substance. In Conard v. Dillingham, supra, the complaint alleged that the defendant “ ‘ * * * did willfully, wantonly, and maliciously speak of and concerning the plaintiff certain false, defamatory, and slanderous words, to wit, “That the plaintiff had stolen a Ford truck * * ’ ” At the trial the court instructed the jury on both actual and punitive damages and submitted the following verdict to the jury: “We, the jury duly impaneled and sworn in the above action, upon our oaths, do find for the plaintiff and fix his damages at the sum of $-.” The jury filled in the amount at $1300. On appeal the appellant attacked the correctness of the court’s instructions both on the question of actual and punitive damages. No question was raised as to the form of the verdict in failing to separately assess the actual and the punitive damages. We upheld the judgment of the lower court and although the verdict in form indicated that it was one for actual damages only, the court concluded its opinion in the following language: “This evidence, if believed by the jury, the sole judge of its weight, was sufficient to support a verdict for exemplary or punitive damages when considered in connection with the slanderous statement itself. "No error appearing in the record, the judgment is affirmed.” This court in that case, by implication, approved the form of verdict submitted to the jury in the instant case. We hold therefore that while it is the better practice to separately assess the actual and punitive damages, failure to do so constitutes merely error of form rather than of substance. Defendants next contend that the verdicts are contrary to the pleadings, the law and the evidence in awarding damages as against both defendants. They argue that in the absence of a conspiracy to slander, a joint action cannot be maintained against two or more persons on such a charge. An examination of the authorities cited by defendants substantiates this claim. But the cases have no application to this case. Plaintiff has alleged in each of her causes of action based upon slander the existence of a definite plan or conspiracy between defendants Sarah Horn and Marian Horn to coerce plaintiff into falsifying the date of an injury sustained by her during her employment with defendants. This allegation of conspiracy was expressly denied by defendants in each cause of action. The evidence upon this point to our mind is conclusive. “Conspiracies need not be established by direct evidence of the acts charged. They may, and generally must, be proved by a number of indefinite acts, conditions, and circumstances which vary according to the purposes to be accomplished. The very existence of a conspiracy is generally a matter of inference deduced from certain acts of the persons accused which are committed in pursuance of an apparently criminal or unlawful purpose in common to them. The existence of the agreement or joint assent of the minds need not be proved directly, but may be inferred by the jury from other facts proved. It is not necessary to prove that the defendants came together and actually agreed upon the unlawful purpose and its pursuit by common means. If it is proved that the defendants, with a view to the attainment of the same purpose, pursued such purpose by their acts—often by the same means, each performing some part thereof—the jury will be justified in concluding that they were engaged in a conspiracy to effect a common object. * * * ” 11 Am.Jur., Conspiracy, Sec. 38 (Citing many cases). Also see State v. Sullivan, 68 Ariz. 81, 200 P.2d 346; State v. Cassady, 67 Ariz. 48, 190 P.2d 501. The above quotation has to do with criminal conspiracy. But the rules of evidence applicable in criminal prosecution for conspiracy are the same in civil cases of conspiracy. 11 Am.Jur., Conspiracy, Sec. 56. The conversations between plaintiff and the defendants were not in each instance in the presence of both defendants but invariably a statement made by either of defendants to plaintiff, whether in the presence of each other or not, .including the threats of defendants to run plaintiff out of town and to charge her with criminal conduct, was'vocally approved or reaffirmed by the other. See Bankhead v. Howe, 56 Ariz. 257, 107 P.2d 198, syllabuses 6 and 7, 131 A.L.R. 269. We hold that a conspiracy to defame plaintiff’s character was clearly established. Therefore there is no merit to this assignment. We have carefully examined the instructions of the trial court relating to both actual and punitive damages and find them to clearly state the law. If defendants’ statement in assignment of error No. 4 to the effect “that the instructions improperly instructed the jury as to the relation between actual and punitive damages” they mean that the trial court failed to instruct the jury that punitive damages must bear some reasonable relation or proportion to the actual damages assessed, the answer is that no such instruction was requested by appellants at the trial and they cannot therefore be heard to complain here. There is a decided conflict of authorities on the soundness of the doctrine as to whether or not there does exist or should exist a reasonable relation or proportion between the two and we reserve our ruling upon it until properly presented. A conspiracy having been both alleged and proved the other portions of instructions of which complaint is made were properly given. We will now take up the question presented in the first assignment of error to the effect that the verdicts are excessive and are the result of prejudice and passion. We have heretofore pointed out that proof of the utterance of false words concerning another which are actionable per se unless privileged, entitles such other person to damages in some amount. In addition to proof of these facts plaintiff testified that she had suffered mental distress in brooding over the "insidious disgrace" it brought upon her. There is no rule by which damages for mental suffering and humiliation may be measured. Vaughn v. May, 217 Mo. App. 613, 274 S.W. 969. The amount to be assessed must be left to the sound discretion of the jury. If the amount, however, is inadequate or excessive, the court may interfere. Jacob v. Miner, 67 Ariz. 109, 191 P.2d 734. Included in the verdict rendered in the instant case is the element of punitive damages awarded as punishment for a wicked and vindictive course of conduct shown to have been pursued by defendants against plaintiff. The jury evidently found the existence of malice in fact as distinguished from malice in law in the minds of defendants as a motivating influence in their conduct. Treating the evidence in the light most favorable to the plaintiff, as we are bound to do under the circumstances, we are of the view the jury could have reached no other conclusion. Such a vindictive attitude was not only indicated from the testimony of the witnesses to whom the accusations were made but it was manifest in the testimony of the defendants themselves. It will be observed that causes of action 2, 3 and 4 are based on three different statements or accusations made by Marian Horn to the witness Frances Shiff Segal on May 17th, 20th and 25th respectively for which damages were awarded in each cause for $5000. This leads us to conclude that the spiteful and vindictive attitude of the defendants may have influenced the jury to allow passion and prejudice to somewhat enter into their deliberations in assessing damages in all five counts in the sum of $5000 each. And while we hesitate to disturb the verdict returned by the jury and although we recognize plaintiff’s right to prosecute her action for damages oh each of the accusations made, we feel, in the interest of justice, we should exercise the authority given us under the provisions of section 21-1833, A.C.A.1939, to decrease the amount of damages awarded if we deem it to be excessive. We observe that the prayer of the complaint asks for, and the verdict and judgment both purport to award plaintiff attorneys’ fees. No assignment is found in the record questioning the right of plaintiff to attorneys’ fees in actions of this character. We presume that this is due to the fact that neither the verdict nor the judgment fix the amount of the fees and counsel were of the opinion that the judgment for such fees was unenforceable for lack of certainty. We find no law in this state, however, to support such a judgment in an action for slander even if the amount were definitely fixed in the judgment. It is true some jurisdictions allow recovery of attorneys’ fees where exemplary damages are assessed but we have not adopted that rule and the question is not properly before us at this time. We find no reversible error committed by the court in the trial of the case. It is therefore ordered that if plaintiff shall, within ten days file a remittitur in this court in the sum of $2000 on each of the first five causes of action, the judgment will in all respects be affirmed. Otherwise the judgment will be reversed on these causes of action and the case remanded for a new trial. Judgment gffirmed on condition of remittitur. UDALL, C. J., and STANFORD, DE CONCINI and LA PRADE, JJ., concur.

DE .CONCINI, Justice. This action was filed in the trial court by plaintiff-appellant, Olds Brothers Lumber Co., to foreclose a mortgage upon realty owned by defendants below, Melvin Patch and wife, mortgagors. There were three other liens upon the same realty, the holders of which, The Valley National Bank, Babbitt Brothers Trading Co., and R. S. Marley and wife, were made defendants in the action. All of said liens were executed 4>y defendant Patch in whom is vested the iegal title to the realty involved. The facts out of which this action arose are as follows: In 1942 Mrs. Marley and her son-in-law Melvin Patch were engaged in the grocery and produce business. Mr. Marley joined in the work of the business some time in 1942. In 1946 articles of copartnership were executed and recorded showing a one-half interest in the Marleys and the other half in Patch. The partnership was known by the firm name of "Patch and Marley". On January 21, 1947, the three partners entered into an option agreement whereby the Marleys granted Patch a 30-day option to purchase their one-half interest in the partnership for $12,000, to be paid: $4,000 cash upon exercising the option; $2,000 within fifty days; $3,000 September 30th of that year; and $3,000 September 30, 1948; Patch to assume all partnership debts, etc. Patch exercised the option on February 19, 1947, paid the Marleys $4,000, and the Marleys delivered their deed to the partnership realty — the realty in question here — as provided by the option agreement. The final $3,000 payment has not been made to the Marleys, and it is for that payment that they claim a lien against the realty. At the time the option agreement was executed the partnership firm was in financial distress and owed “numerous” creditors. Appellant was one such creditor. On October 20, 1947, Patch executed a promissory note in favor of appellant for some $3,000, the amount of the indebtedness the firm owed appellant, which had accrued from 1945 to 1947. The note was secured by a mortgage on the realty in question. It is that mortgage which appellant sought to foreclose in the trial court. The contracts and mortgages involved were executed and recorded in the following order: Instrument Dated Recorded 1. Marley-Patch option agreement. Jan. 21, 1947 Feb. 19, 1947 2. Mortgage to Valley Bank Aug. 7, 1947 Aug. 12, 1947 3. Mortgage to Olds Brothers October, 1947 Nov. 7, 1947 4. Mortgage to Babbitt Brothers Nov. 19, 1947 Nov. 22, 1947 The parties all stipulated the Valley National Bank mortgage was superior to all others. Babbitt Brothers stipulated that their mortgage was subsequent and inferior to Marleys’ rights under the option agreement, except as to Marley’s claim for a lien on the real estate for the value of the truck. The main question in this case is, Who has the superior lien, Marley appellees, or Olds Brothers appellants ? A second question arises by virtue of the fact that in the option contract the partners reserved and withheld from the purchase and sale a certain motor truck which was to be used and was so used by Marley and Patch in turn, and then delivered back to ' Marley with transfer of title. The truck was delivered back to Marley but it was encumbered at the time and was subsequently repossessed by the finance company. Marley crossclaimed against Patch for $2,000 damages for a failure to deliver the truck with title as agreed. The trial court, sitting with an advisory jury, rendered a judgment which found and adjudged, among other things, the contract lien of $3,000 of the Marleys to be prior and superior to the appellant’s mortgage, and that the $2,000 claim of Marleys’ was secured by a lien upon the realty in question and that said lien is prior and superior to appellant’s mortgage. Appellant Olds Brothers appeal from that part of the judgment set out above. Appellant Babbitt Brothers appeal only from that part of the judgment which gives Marleys a lien on the real estate for $2,000, the value of the truck. Appellant Olds Brothers make four assignments of error. The first three concern the trial court’s finding Marleys’ contract lien to be prior to appellant’s mortgage. Appellant contends that as a matter of general law it’s mortgage is prior to Marleys’ lien, and cites 40 Am.Jur., Partnership, Sec. 409, to that effect: “Priority of Creditors over Partners in Liquidation of Firm. Before a division of the partnership assets among the partners, upon the dissolution of the partnership, all debts due, as a general rule, must be paid. A member of a partnership is not under ordinary conditions permitted to compete with the firm’s creditors. * * That rule stems from the broader principle set out in 40 Am.Jur., Partnership, Sec. 404, to wit: “Generally.— The members of a partnership, as against one another have an equitable and, ordinarily, statutory right to have the partnership assets applied in liquidation of the partnership debts before any one of the partners or his individual creditors can claim any right or title to -them, * * See annotation, 6 A.L.R. 160. Marley admits the rule but seeks to escape its effect by arguing that the indebtedness for which appellant is suing was incurred after the partnership was dissolved and the agreement of dissolution was recorded. While it is true that part of the indebtedness was-incurred after the dissolution agreement be tween the partners, and the recording thereof, yet that alone does not establish Marley’s lien as superior to appellants’ mortgage because the appellants were not notified of the dissolution. The general rule is stated in 68 C.J.S., Partnership, § 364: “As a general rule, a partnership continues as to third persons who deal with the members thereof as partners until due notice of dissolution is given, even though as between the partners the firm has been dissolved pri- or to such notice, especially as to persons who dealt with the firm or extended credit prior to the dissolution as between partners; or, as sometimes expressed, a partnership is presumed to continue as to third persons until notice of dissolution is given, * * . (And cases cited.) In the case of Overlock v. Hazzard, 12 Ariz. 142, 100 P. 447, which was approved in Hyder v. Barton Hat Co., 29 Ariz. 380, 241 P. 959, this court said: "It is well settled that, where there has been a change in the membership of a partnership, to relieve a retiring partner from any liability for the debts of the partnership in the future, reasonable notice must be given to persons dealing with the partnership of such change. * * *" In that case the defendants were engaged in a partnership business. They then formed a corporation which took over that business. Although the articles of incorporation were published in the proper newspaper and duly recorded as prescribed by law, this court held that the plaintiff was not given reasonable notice that the business was no longer of the nature of a partnership, and that the partners were still individually liable to the plaintiff who had done business with the defendants as a partnership. There is no statutory requirement for the recordation of dissolution of a partnership, and therefore such recordation is not constructive notice per se, 47 C.J., Partnership, § 600, 68 C.J.S., Partnership, § 268. Under the law of Hazzard and Hyder cases, supra, Marley cannot escape the general rule as set out above merely because the partnership dissolution had been recorded. Appellant Olds Brothers next contends that the option contract between Patch and Marley is in itself sufficient to establish the priority of its mortgage. With this we agree. Only one paragraph of that contract need be set out, to wit: “It is expressly understood and agreed by and between the parties hereto that it will be necessary for the Optionee to refinance the now existing indebtedness against the real property which is now a part of the partnership assets so as to realize therefrom the payment to be made within fifty (50) days of date hereof in the event the option herein granted is exercised, and that it will be necessary for the Optionee to obtain finances by and through mortgage liens to pay current indebtedness of said partnership. It is therefore expressly agreed that the Optionee shall have the right to hypothecate and mortgage any and all of the assets of said partnership to an amount not exceeding Twenty Thousand Dollars ($20,-000) exclusive of indebtedness now existing against the trucks and rolling equipment, * * * and that the Optionors shall have a lien on all partnership assets now existing or that shall be acquired in lieu of assets now existing until the full balance is paid as hereinabove set forth, with the right to foreclose the same as a mortgage, but that said lien shall be subject and inferior to any mortgage liens which may be placed on said property by the Optionee in refinancing as above;” (Emphasis supplied) Both appellants and appellees offer numerous rules of contract construction in advancing their respective positions; however, it is obvious to us that the contract is so explicit and unequivocal in its terms that no rules of construction are necessary in declaring its intendment. As can be seen from the portion quoted above, Marley expressly gives Patch the right to mortgage any and all of the partnership assets. Under the terms of the contract Marley agreed to have his lien made subject and inferior to any mortgage liens which may be subsequently placed on the realty by Patch. Nothing could be clearer. That such an agreement may be made, and binding upon the parties, is set out in 59 C.J.S., Mortgages, § 229: “The legal order of priority as between mortgages and other liens or •claims may be fixed, reversed, or modified by an agreement of the parties or by a waiver or release on the part of the senior lienholder. * * * ” Appellees contend that the contract provides for superiority of any new liens by virtue of “refinancing” and not any mortgages for the benefit of firm creditors. We agree with that as between creditors, i.e., one creditor can’t be preferred over the other, but as between creditors and the individual partners the creditors must come first. It is evident from the foregoing, then, that under the general law of partnerships and by virtue of the option contract appellant’s mortgage lien is prior and superior to appellees’ contract lien. Appellants’ fourth assignment of error, and the final question for our determination, is that part of the judgment of the trial court wherein appellees’ crossclaim for the value of the truck, $2,000, is held to be a lien upon the realty and that such lien is prior to appellant’s mortgage. That part of the option contract pertinent to the disposition of said truck is as follows: “ * * * to the end that the Optionee shall be the sole owner of all of the assets of the partnership business of every kind and character except * '* * 0ne 1946 Ford Truck * . * * and the Ford truck hereinabove mentioned shall, upon the last day of September, 1947, become the sole property of R. S. Marley, and that the said R. S. Marley shall, from the date of this agreement, have the use of said truck until the first day of May, 1947, and that thereafter said truck may be used in the business conducted by the Optionee in the business conducted by him, which is the subject matter of this Agreement, until the 30th day of September, 1947 when the same shall be delivered to said R. S. Marley, together with the transfer of title thereto;” Appellees’ claim that the truck was a part of the purchase price of the partnership assets and so under the terms of the contract appellees had a lien on the realty for its value. Appellants counter with the argument that at most appellees have an equitable lien and that such is not prior to appellant’s legal mortgage lien. From the terms of the contract set out above, Marley was to receive possession and title to the truck on September 30, 1947. In other words, on that date Patch would transfer to Marley his partnership interest in the truck. In considering the contract, both in its entirety and to the part above quoted, it is clear that Patch’s interest in the truck was to be given to Marley on September 30, 1947 as a part of the purchase price over and above the $12,000 for the assets of the partnership. An examination of the option agreement fails to disclose that Marley was to be entitled to a lien for the value of the truck. At the time the agreement was entered into the truck had a mortgage on it, in an undisclosed amount, and at the time Patch redelivered the truck to Marley it had a mortgage on it in the sum of $700. There is nothing in the contract that indicates the parties intended that Marley would have a lien 'on the real estate for the value of the truck so therefore, no lien could exist. The general rule is to that effect. See 53 C.J.S., Liens, § 2b. Appellees contend that “if a transaction resolves itself into a security, whatever may be its form and whatever name the parties may choose to give it, it is in equity a lien” and thereby claims an equitable lien on the real estate. However such reasoning cannot overcome the general rule of partnership as stated in the early part of this opinion, that a creditor of the partnership is first to he satisfied out of the assets in the partnership, and then if there is anything left the partners come next. Such a rule is good both in law and in equity. The judgment is affirmed as to the priority of the Valley National Bank’s mortgage, and as to the priority of the lien of Marleys for the sum of $3,000 over the mortgage of Babbitt Brothers; and the .judgment is modified in that the Babbitt Brothers mortgage is superior to the lien of Marleys’ for. the value of the truck, to wit'$2,000; and the judgment is further modified in that the Olds Brothers mortgage is superior and prior to the rights of all parties except the mortgage of the Valley National Bank. The case is remanded to the lower court for further proceedings not inconsistent with this opinion. Judgment affirmed in' part and modified in part. UDALL, C. J., and STANFORD, PHELPS and LA PRADE, JJ., concur.

STANFORD, Justice. This case comes before us on certiorari to review an award of the respondent Industrial Commission denying compensation to petitioner, Ora M. Harris, widow of the deceased, Lloyd Wayne Harris. At the time of his death, on August 6, 1949, deceased was employed as a foreman by the Asbestos Engineering & Supply Co. of Phoenix, Arizona, as an insulation worker. His home was also in Phcenix, but in his line of work he was compelled to travel to various points around the state, for which he was allowed certain travel time for the time spent in traveling between his home and particular place of employment, compensation being paid on the basis of his regular hourly wage. In addition to the home in Phcenix, deceased also maintained a cabin, which was located near Signal Peak, some 15 miles from the city of Globe, Arizona, where he and his family often spent the summer weekends. The cabin was reached by means of a dirt road from Globe, the road ending beyond the cabin at some abandoned mines. For several days preceding his death, deceased has been working in Morenci, in the eastern part of Arizona. Before going to Morenci, deceased made arrangements with his wife, petitioner herein, to meet her at the cabin on August 6, which was Saturday, and spend a few days there. On the morning of August 6, petitioner, who was then in Phcenix, decided not to go to the cabin because of illness in the family, and did not keep the appointment.. When the deceased completed his job at Morenci on Saturday afternoon, he started for the cabin. He reached Globe and had traveled up the dirt road some ten or eleven miles when his car left the road and plunged down a steep cliff, from which he suffered multiple crush fractures, resulting in his death. His body was not found until the following Wednesday. Petitioner filed the usual widow’s claim for compensation which the commission denied on the ground that deceased suffered no injury from accident arising out of and in the course- of his employment. On rehearing, the original findings and award were affirmed. While it is a general rule that an employee is not to be compensated for injury occurring during the journey to or from his place of employment, it is' a widely accepted and well-known exception that where the work is of such a nature that it creates the necessity of travel on the part of the employee, or where the employer compensates the employee for travel to and from work, the employee is protected by the Workmen’s Compensation Act, A.C. A. 1939, § 56-901 et seq., and entitled to compensation for injury resulting therefrom. Butler v. Industrial Comm., 50 Ariz., 516,. 73 P.2d 703. See also annotations in 20 A.L.R. 319,- 49 A.L.R. 454, 63 A.L.R. 469; Kobe v. Industrial Accident Comm., 35 Cal.2d 33, 215 P.2d 736, and cases cited therein. The cases holding that the workman is protected by the Act while traveling to and from work, compensation being paid for such travel, reach that conclusion by an inference that the workman remains “on the job” during the time spent in the journey between his home and place of employment. Kobe v. Ind. Acc. Comm., supra. The only question presented in the present case is whether the accident causing the death of deceased arose out of and in the course of his employment or whether his turning off the main highway at Globe and traveling toward the cabin was such a departure from the contemplated normal course of travel that it removed him from coverage under the Act. The evidence showed that the company had established a standard travel time between Phcenix and Morenci of eight hours. This meant that the deceased was paid for eight additional hours for each of such trips whether the actual travel time was more or less than eight hours. The home of the deceased was in Phcenix, and he had not abandoned that home nor changed his residence. It is clear that his intention was only to spend a short time at the cabin. His time card appearing in the record, shows that the company allowed him eight hours on Saturday as compensation for the trip to his home at Phcenix. It is of course absurd to assume that he was compensated for an eight hour journey, whatever the direction. We think it beyond question that no coverage would have been extended had the deceased started east, going to El Paso or some other destination equally remote, instead of driving toward Phoenix. We think it also beyond question that the protection of the Act was in effect while the deceased was driving from Morenci to Globe, being the usual route to Phoenix. While we do not hold that an employee traveling to and from work, such as the deceased, must take a specific route and make no detours whatsoever in order to retain the protection of the Act, we are indeed of the opinion that it is possible for the employee to so deviate from the anticipated course of travel, in going from his home to work and returning, as to remove himself from its benefits. Of course the decisions in each of such cases must rest entirely on its own facts and circumstances, and cannot be controlled by an arbitrary rule. We are, however, of the opinion that the journey from Globe to the cabin-by the deceased was such a departure from the course of travel anticipated, and from the travel allowed for by his employer as to remove him from the protection of the Act and place him on his own. Indeed any other solution would be disastrous as it would allow such an employee the enjoyment of unlimited freedom under the guise of a “homeward journey”, while protected by the provisions of the Act. We hold that the commission was right in determining that the accident causing the death of deceased was not one resulting from accident arising out of and in the course of his employment. Award affirmed. UDALL, C. J., and PHELPS, DE CONCINI and LA PRADE, JJ., concur.

UDALL, Chief Justice. The sole issue presented on this appeal is whether there is evidence to sustain the trial court’s judgment entered in this possessory action determining that a certain frame barracks-type building situate on a lot described as Lot 4, Block 8, Harbert’s Subdivision, an addition to the city of Phoenix, was a part of the realty rather than personal property. Joé L. Schmitt and Helen Schmitt, his wife, plaintiffs-appellees, brought this action against defendants William Salyer and Esther Salyer, his wife, and the Young Women’s Christian Association, a corporation, primarily to recover possession of Lot 4, supra, and the buildings situate thereon, although other additional relief was sought. The case was tried to the court sitting without a jury and at the close thereof plaintiffs withdrew their claims against the defendant YWCA. Judgment was thereupon entered for plaintiffs granting them immediate possession of said property and every part thereof as against defendants Salyer, but denying the other relief prayed for. The Salyers have appealed from this judgment and the denial of their motion for a new trial. Although the record is devoid of many material facts, it appears that about a decade ago the city of Phoenix was engaged in the construction of the Marcos de Niza housing project and certain frame barracks-type buildings had to be moved to make way for the new construction. The YWCA was orally advised by a single member of the Phoenix Housing Authority that if it would remove the buildings, paying all expenses incurred, the city would give to the YWCA some of these buildings for use in its recreation program. No formal action was ever taken validating or attempting to validate the giving away of these buildings in this manner. The building involved in the present suit is one which was moved onto the lot in question at 1452 West McKinley street by the YWCA with the city’s “permission”. The city at that time believed that the lot belonged to it because of delinquent and unpaid taxes and street improvement assessments. It later developed that the city was mistaken—the lot did not belong to it. Apparently it was understood that the YWCA might later remove the building from Lot 4 to a more permanent location if it so desired. The YWCA later was forced to abandon its recreation program because of a shortage, of supervisory personnel, and it has never attempted to move the house from the lot. Thereafter, although exactly when is not shown by the record, the YWCA gave its permission to the defendants Salyer to move into the building and to occupy it as a residence. Salyer, who was a city employee, agreed to repay the YWCA for its costs of moving the building. According to Salyer’s testimony he did contribute to the YWCA some $15 per month for a period of nearly a year, in addition to making some needed repairs to the building. Salyer, like the YWCA, has never attempted to move the 'house elsewhere. Plaintiffs in March of 1944 acquired a treasurer’s tax deed to Lot 4 and thereafter brought an action to quiet title to the premises. Named as defendants in this suit, along with the original record owners, were the State, the county of Maricopa, and the city of Phoenix. While the defendants Salyer were then living on the premises they were not made parties to the suit. Judgment was entered in October of 1945 quieting their title. Plaintiffs’ title to Lot 4 is not now in dispute. The building, over which this controversy arose, rests upon concrete piers or blocks upon the premises. The record does not disclose just when or by whom utility connections were made to the city water and sewer systems, although it is undisputed that such connections were made prior to plaintiffs obtaining their tax deed. Likewise the record is silent as to when the building was placed on the lot, but it does show that the treasurer’s deed was issued to plaintiffs in March of 1944 and that the building was on the premises at that time. In October of 1945 plaintiffs brought their suit to quiet title and the city was made á party defendant. Although a party defendant, the city made no claim to the'building and a decree quieting title in plaintiffs resulted. There is also evidence in the record that even prior to plaintiffs’ quiet title action the Salyers, in September of 1944 after plaintiffs acquired their treasurer’s tax deed, attorned to them by paying $10 rent for one month on the premises. Defendants, after living in the house on Lot 4 for nearly a decade, now apparently contend on this appeal that the building is personal property both because of the intention of the parties and the manner in which it was placed on the realty. Defendants’ sole assignment of error reads: “The judgment of the court was not justified by the evidence and is contrary to law.” Obviously this assignment wholly fails to comply with the rules of this court concerning assignments of error, Rules of the Supreme Court, Rule X. We have always reserved the right to raise the inadequacy of such assignments upon our own motion. Tidwell v. Riggs, 70 Ariz. 417, 222 P.2d 795, and cases cited therein. Nevertheless we have carefully examined the entire record and have concluded that there is no merit to defendants’ contentions. There are several different theories upon which the learned trial court may have predicated its judgment. The court may have properly found either (1) that the building had become annexed to the realty and had become a part thereof prior to the time plaintiffs’ title was quieted in 1945; or (2) that the YWCA abandoned the building, as well as its intention to re move same, at the time its recreation project was discontinued and 'hence the building ceased to be personal property and became a part of the realty; or (3) that defendants were mere trespassers having neither title nor right of possession to the building and that their single payment of rental to plaintiffs was an acknowledgment of such facts. Judgment affirmed. STANFORD, PHELPS, DE CONCINI and LA PRADE, JJ., concuring.

STANFORD, Justice. This is an appeal from an order of the superior court quashing a writ of certiorari and dissolving the stay that had theretofore been ordered at the time the writ was issued. There was also made an order dismissing the petition upon which the writ had been granted. The appellants (petitioners below) are four of the five practicing physicians in Mohave County. Located at Kingman,, the county seat, is a county hospital known as the Mohave General Hospital, author ized, directed and maintained under the provisions of Chapter 17, Arts. Ill and IV, A.C.A.1939, relating to the powers of the board of supervisors in maintaining favorable health conditions. Incidentally, this was the only hospital in the county and widely used by the residents of the north westerly corner of the state. As a county hospital, it was completely under the control of the board of supervisors of Mohave County, who had provided a general manager therefor. On February 19, 1949, the respondent members of the board'of supervisors passed a certain resolution or rule pertaining to the use of the facilities of the hospital by any doctor. This resolution, known as Resolution 111, is as follows: “Resolved, That if any doctor using Mohave General Hospital facilities is requested by another doctor, using such facilities, to assist him professionally and that doctor refuses or fails to give such assistance, then such doctor shall not be allowed to use said hospital facilities thereafter, except only for his patients in the hospital at that time.” On February 26, 1949, petitioner Barnes was notified by respondent Coppa, manager of the hospital, that he would no longer be allowed the use of the hospital, with the exception of the patients which he was then treating in the hospital. He was later notified that authority for this action had been obtained from the respondent board and was the result of an alleged violation of Resolution 111, supra. In August of 1949, the three remaining petitioners received similar notifications and were also prohibited from further use of the hospital facilities. No charges were preferred and no hearing was given petitioners prior to the notifications. A statement was added at the bottom of each notice that petitioners could request a hearing if they so desired. On August 31, 1949, petitioners filed their petition for writ of certiorari in the superior court of Mohave County, the Honorable J. W. Faulkner presiding. It was thereupon ordered that the writ issue and the respondents were commanded to certify and return the complete transcript of the record and proceedings held regarding the above-mentioned notifications which petitioners had received. All proceedings, subsequent to the issue of the writ were heard and determined by the Honorable H. L. Russell. There was also incorporated in the writ a stay requiring the parties in the meantime to desist from further proceedings in the matter to be reviewed. The purpose of the writ was to secure a review of the actions of the board of supervisors. The petition for the writ alleged: (1) that the board had exceeded its jurisdiction in finding the respondents guilty of violating the resolution without notice and without trial; (2) that the board had exceeded its jurisdiction in denying the use of the hospital facilities to respondents; and (3) that the board had exceeded its jurisdiction in the adoption of the resolution for the reason that the resolution was unconstitutional and void in that it was unjust, unreasonable and exceeded the discretionary powers of the board. After the writ was issued, respondents filed their motion to quash, which was thereupon denied by the court. They then filed- their response to the petition which contained a partial record of the proceedings before the board and also denied certain material contained in the petition for certiorari, further alleging that petitioners had requested no hearing after the notification of violation of Resolution 111 and termination of their use of hospital facilities. For further response, respondents also set out details concerning the alleged violation which were not contained in the record of proceedings of the board. In this regard, we note particularly that the only matter contained in the certified record, pertaining to the alleged violations, is a copy of the minutes of the said board, which states merely that Resolution 111 had been violated, no particulars being set forth. It is stated in the return that there was no transcript made of such proceedings. The court, after taking the matter under advisement, issued its order dismissing the petition for writ of certiorari, quashing the writ theretofore issued and granting respondents their costs, which order was supported by the court’s written findings of fact and conclusions of law, filed in pursuance of petitioners’ request. In the lower court, and here, respondents questioned the use of the writ of certiorari to challenge the constitutionality of the resolution. Their position in this behalf was, and is, that the writ of certiorari may not be used to review the actions of inferior tribunals, boards or officers in the exercise of legislative, executive or ministerial functions. We have heretofore ruled that the writ is confined to a review of judicial action, and then only to determine whether the inferior tribunal, board or officer has exceeded its jurisdiction or acted without jurisdiction. Faulkner v. Board of Supervisors, 17 Ariz. 139, 149 P. 382. In State ex rel. Andrews v. Superior Court, 39 Ariz. 242, 5 P.2d 192, it was held that certiorari issues only to test jurisdiction and not to determine whether it was erroneously exercised. The inferior court must have jurisdiction of the subject matter, person and power to render the particular judgment which was given in order that the judgment be proof against attack by certiorari. Wall v. Superior Court of Yavapai County, 53 Ariz. 344, 89 P.2d 624. In numerous other cases we have held that certiorari raises only the question of jurisdiction and not the erroneous exercise thereof. If the resolution in question is so unreasonable and so unjust as to be unconstitutional, then the board, in attempting to enforce it was without jurisdiction. The rights of these petitioners were materially and substantially affected by it as were the rights of their patients and of the residents of Mohave County that had necessity for the use of the hospital's facilities and who might be admitted as paying patients. The principle of law laid down in the case of Mill v. Brown, 31 Utah. 473, 88 P. 609, 611, is fittingly applicable in the instant case. The court in that case said: "* * * If the law be unconstitutional, then the acts of the respondent which affect the rights of the applicant have no support, and are, therefore, void and of no force or effect. This inquiry goes directly to the power — jurisdiction — of respondent to act, not to his qualification to do so, and hence can be inquired into in this proceeding. We cannot assent to the doctrine that a citizen affected by a law may not, at any time and in any judicial proceeding, attack that law as being unconstitutional and therefore void. An unconstitutional law by which it is sought to affect the rights of the citizen is of no force or effect and would not bind any one. Norton v. Shelby County, 118 U.S. 425-442, 6 S.Ct. 1121, 30 L.Ed. 178. Any act, therefore, of the respondent affecting the applicant's rights, if such act is based upon an unconstitutional law, is both without and beyond jurisdiction, and therefore void. The first objection cannot be sustained." The board, in defending their actions, are relying upon their powers as conferred by law, pointing out that by the provisions of section 17-309, A.C.A.1939: ' “The board of supervisors, under such limitations and restrictions as are prescribed by law, may: “5. Provide for the care and maintenance of the indigent, sick and the dependent poor of the county; erect and maintain homes and hospitals therefor; provide in their discretion a farm in connection with the county hospital, and make regulations for working the same; * * * * * * “17. Adopt provisions for the preservation of the health of their respective counties as necessary, and provide for -the expenses thereof; * * * * * * “22. Do and perform all other acts and things necessary to the full discharge of the duties as the legislative authority of the county government; but a supervisor shall not vote upon any measure in which he, or any member of his family, or partner, may be pecuniarily interested; “23. Make and enforce all local, police, sanitary and other regulations not in conflict with general laws; * * * * * * They also direct attention to section 17— 404, A.C.A.1939, which in part provides that: “Except in emergency cases when immediate hospitalization or medical care is necessary for the preservation of life or limb no person shall be provided hospitali zation or medical care hereunder without first filing with the board of supervisors * * * (indigent oath) * * *. The board of supervisors may admit into such hospital for hospital care, medical or surgical attention, any person other than an indigent who will pay, in part or in whole, for such hospital care, medical or surgical attention, under rules and regulations prescribed by said board. The. admission of a paying patient shall not be to the inconvenience of any indigent patient.” In considering the reasonableness of the resolution under consideration we have taken into consideration the Code sections above referred to and that portion of section 17-349, A.C.A.1939, wherein it is expressly provided that “ * * * Any person other than an indigent who has been admitted to the county hospital, may employ, without expense to the county, a physician or nurse who shall be permitted the necessary use of the hospital facilities and equipment. * * * ” It is thus seen that a paying patient has a right to employ his own physician. Does this regulation impinge upon this privilege? If the rule is enforced the patient is restricted in whom he may employ, for the regulation provides that he may not employ a doctor who has not acceded to the regulation and agreed to assist any other doctor professionally, presumably in the hospital. In other words, the doctor, before he may prescribe for his patient, must first 'agree that he will aid and assist any other doctor in the hospital; under what terms and conditions we do not know. Presumably, he might be required to assist without any assurance of being compensated for his services. He might be required to assist in an operation which in his honest judgment is unnecessary or should be deferred. Undoubtedly, any person worthy of the title of “Physician” or “Doctor of Medicine” would, in a case of emergency or many other situations, render professional aid and assistance to the best of his ability without thought of his obligations incurred under his Hippocratic Oath. Such is not the situation here. This regulation enforces his services not voluntarily contracted for or perhaps not desired by the patient, yet compulsorily enforced upon him. To enforce the rule would enslave him. It is of c.ourse axiomatic that licensed physicians have no constitutional right to practice their profession in a hospital maintained by state or political subdivision. Hayman v. City of Galveston, 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714. It is likewise the general law that municipalities may regulate and control their hospitals and prescribe reasonable rules and regulations to be followed by physicians using the facilities. Green v. City of St. Petersburg, 154 Fla. 339, 17 So.2d 517; Selden v. City of Sterling, 316 Ill.App. 455, 45 N.E.2d 329. For the general rule, see cases cited, 41 C.J.S., Hospitals, § 5. Any public hospital having adopted reasonable rules and regulations governing the practice of medicine or surgery cannot arbitrarily preclude a regularly licensed physician or surgeon the right to practice in such hospital, so long as such surgeon or physician stays within the law. Henderson v. City of Knoxville, 157 Tenn. 477, 9 S.W.2d 697, 60 A.L.R. 652. The provisions of section 17-349, supra, expressly confer upon a paying patient in a county hospital the privilege of employing a private physician without expense to the county, and such physician shall be permitted the necessary use of the hospital facilities and equipment. This express provision destroys any implication of a power to exclude physicians from the use of the county hospital except for a nonadherence to reasonable rules and regulations. We are without professional knowledge as to what might be encompassed within the definition of “reasonable rules and regulations”. The managements of all modern hospitals require physicians and surgeons to keep thorough and clinical reports concerning their patients and their treatment, which become records of the hospital. Wards are provided for obstetrical cases; contagious cases and operative cases. Additional rules provide for numerous hygienic precautions. The reading of the cases indicates that hospitals have adopted rules denying the young and inexperienced surgeons the right to perform certain operations in the hospital except under the guidance or observation of an experienced practitioner. The rules and regulations just referred to> all have reference to an orderly management of the hospital and in most instances are made for the protection of patients. Such rules and regulations appear to be reasonable and no doctor could be heard to complain for having to comply therewith. But the regulation under consideration goes beyond and transcends the ordinary and common-place regulations and invades the personal liberty and contractual rights of both the patient and the physician. To accede to the rule by what virtually amounts to compulsion would be repulsive and beneath the dignity of a professional man. “ * * * Physicians are not public servants who are bound to serve all who seek them, as are innkeepers, common carriers, and the like. * * * ” 41 Am.Jur., Physicians and Surgeons, Sec. 4. “A physician is under no obligation to engage in practice or to accept professional employment, but when the professional services of a physician are accepted by another person for the purpose of medical or surgical treatment, the relation of physician and patient is created. The relation is a consensual one wherein the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient. * * * ” 41 Am.Jur., Physicians and Surgeons, Sec. 71. In view of the circumstances surrounding this case it is apparent that petitioners had no plain, speedy and adequate remedy to protect their rights and to fulfill their obligations as physicians in the treatment of the private patients who might be regularly admitted as paying patients. Respondents suggest that a declaratory judgment and an appeal in the event of an adverse judgment would have afforded adequate relief. With this contention we cannot concur. We therefore hold that the resolution was unconstitutional; that all action taken under it is and was of no effect. Having reached this conclusion, it is by way of anti-climax to point out that the resolution provided no method for review and that the action of the board in finding the petitioners guilty of violating the rule without accusation, notice or trial, finds no basis under our system of law requiring due process where substantial rights of citizens are infringed .upon or destroyed. The judgment quashing the writ and dissolving the stay is reversed, and the trial court is instructed to enter judgment reinstituting the desist order. Judgment reversed. UDALL, C. J., and LA PRADE, J., concur.

PER CURIAM. This case was brought by plaintiffs-appellants George and Margaret Dungan, husband and wife, against the Arizona Ice and Cold Storage Company, a corporation, and Philip Brandenberg, an iceman, hereinafter referred to as the “company” and the “driver” respectively. Plaintiffs alleged that the driver was the servant of the company, and that he, while in the scope of his employment, did negligently operate an ice truck and did thereby cause the death of plaintiffs’ four-year old son, Jackie Dungan. The facts as disclosed by the record show that on September 18, 1947, the driver made one of his regular deliveries of ice to the home of the plaintiffs. The driver parked the ice truck about thirty feet from the front of plaintiffs’ house in the yard abutting it. Having made the delivery he emerged from the house, entered the truck and commenced to back it up. The driver’s testimony is conflicting as to just what observations he made relative to the whereabouts of the child before backing up the truck. When the truck had gone backwards about ten feet the driver heard his helper, one Fimbres who was then some distance away, holler, “Stop!” At the same instant he heard the child scream. The driver stopped the truck and retrieved the crushed body of the child which was lying in a prone position underneath the truck between the front and rear wheels. A short time thereafter the child died of his injuries. The matter was tried before a jury. The trial court, at the close of plaintiffs’ case, directed a verdict in favor of the company on the ground that plaintiffs had failed to show that the driver was a servant of said company at the time of the accident. At the close of the whole case, the trial court granted a motion for a directed verdict in favor of the driver on the ground that plaintiffs had failed to prove the negligence on the part of the driver in the death of the child. Plaintiffs’ motion for a new trial was denied and they appeal from that order. Plaintiffs’ first assignment of error is that the trial court erred in directing a verdict in favor of the company. Plaintiffs contend initially that the company was the owner of the ice truck in question and then relies on the cases of Baker v. Maseeh, 20 Ariz. 201, 179 P. 53, 55, and Consolidated Motors, Inc., v. Ketcham, 49 Ariz. 295, 66 P.2d 246, which he asserts raise the presumption that the driver was the company’s servant. The first cited case unequivocally holds that: “* * * proof of ownership is prima facie evidence that the driver of a vehicle causing damage by its negligent operation is the servant or agent of the owner and using the vehicle in the business of the owner.” The latter case confirms the former. The evidence as to the ownership of the truck is in conflict. The record shows that the truck was registered with the Department of Motor Vehicles in the name of the company and that the truck license plates had been issued to it; the company was designated as the owner on the certificate of title. The driver testified that prior to the accident he had purchased the truck from the company, had given it a down payment thereon, and had executed a mortgage on the truck to the company for the balance of the purchase price. If the company were the owner, plaintiffs would be entitled to the presumption set out in the cited case. Because the evidence was in conflict and since the only evidence disputing ownership in the company was the testimony of the driver, an interested party, plaintiffs were entitled to have the jury consider whether or not the company was the actual owner and thereby determine plaintiffs’ right to the presumption. It must be further noted at this point that the plaintiffs’ case does not necessarily hinge on the ownership of the truck. Even though the company was the owner of the truck it does not necessarily follow that the driver was its servant, and conversely, it is entirely possible that the driver may have been the servant of the company at the time of the accident even though he himself, and not the company, was the owner. While it is true that in that° event plaintiff would not have the benefit of the aforementioned presumption, still the question of master-servant relationship remains. Once again the evidence is in conflict. The driver’s name and the company’s telephone number appeared on the side of the truck. According to the contract between the driver and the company, the former could sell ice only in a territory defined and limited by the latter. The driver was under obligation to obtain all the ice that he sold from the company, and. to charge whatever retail prices the company should fix. The driver was also obliged to make whatever deliveries the company should direct to the Prima County Hospital which paid the company .and not the driver therefor. As opposed to this evidence the driver testified that he received no salary from the company, that they withdrew no withholding tax from his income, and that he carried social security on his employee, Mr. Fimbres. He also testified that he received no instructions from the company (other than as set out above) as to the manner in which he operated the truck, and that he incurred all expenses in such operation. There is no necessity of setting out the definitions of and differences between the relationships of master-servant and independent contractor. Those lines have been clearly drawn in this jurisdiction as will be found by a review of the cases. It suffices to say that the evidence is in sharp conflict and that it is such that reasonable men could differ in their determination of it. Whether the driver was a servant of the company or an independent contractor was a question that should properly have been left for the jury to determine. The trial court erred in directing a verdict for the company in this regard. Plaintiffs’ second assignment of error is that the trial court erred in granting a directed verdict in favor of the driver. Defendants’ counsel cite in their brief the case of Williams v. Cohn, 201 Iowa 1121, 206 N.W. 823, 824, and quote therefrom to wit: “Three essential elements are involved in every case of actionable negligence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure by the defendant to perform that duty; (3) an injury proximately resulting to the plaintiff from such failure * * * That, succinctly stated, we take to be the law in this jurisdiction. It is clear that the driver owed the deceased child a duty to protect him from being injured by the ice truck. The evidence discloses that the driver had been delivering ice to the plaintiffs for months; that he customarily parked his truck in the yard in front of plaintiffs’ house near two wooden “horses” on which plaintiffs’ children often played; that the driver was perfectly aware of the fact that little children were in the habit of playing in that area; and that he often gave small chunks of ice to the children playing about the yard. The driver admitted that immediately prior to taking the ice into the house, he saw the deceased child in the proximity of the parked truck. The evidence depicting the driver’s duty need not be further delineated. It is equally as clear that the child’s death was proximately caused by the operation of the truck by the driver. The statement of counsel for the defendants in their brief, “ * * * that any evidence as to whether the truck absolutely struck the child or not was at most sheer speculation,” is utterly ridiculous. While backing up the truck the driver heard the child scream. Immediately thereafter the crushed body of the child was found lying in a prone position underneath the truck between its front and rear wheels. We do not think it conceivable that the child’s death was caused by any means other than being run over by the truck. It remains to be considered whether there was sufficient evidence that the driver breached his duty to the child. The test is whether the driver acted as a reasonable man would have acted in like or similar circumstances. There is some conflict as to what the driver did after returning from the house to the truck, and the care he exercised before backing up the truck. The driver testified: “Q Just what did you do to determine whether there was anyone there or not? A When I came out of the house the truck was in position No. 2 on the diagram; come out on the northeast corner; glanced to the rear of the truck when I went around my truck, south side on the diagram. I walked to the rear.” And further: “Q Did you attempt to determine through that mirror whether any person or persons were near your car before you started it? A No, I looked to the rear.” And further: “Q Now, you said here a moment ago, and if I am in error you can tell me, that you went behind the truck to see if anybody was behind it? A I walked to the end of the truck, sir.” Referring to a deposition of the driver taken before the trial: “Q ‘Question: And you say that you went behind the truck before you got in and drove back?’ And your answer was, ‘No, I looked back on both sides. I didn’t look inside the truck.’ Did you make that answer to that question? A Yes, sir.” From his own testimony it does not clearly appear exactly what the driver did on returning to the truck after delivering the ice. At the trial he said he walked to the back of the truck and in the deposition he said that he merely looked back on both sides of the truck. In Collins v. Riverside Amusement Co., 61 Ariz. 135, 145 P.2d 853, 857, this court said: * * * We have often decided that a verdict will not be directed in a case where the evidence is conflicting or where on all the facts and circumstances proven there is room for fair and sensible men to differ in their conclusions. * * *." In reversing a verdict directed in favor of defendant in Keeler v. Maricopa Tractor Co., 59 Ariz. 94, 123 P.2d 166, 167, this court said: “The assignments of error present, in substance, but one question, and that is whether there was sufficient evidence introduced in the case to take it to the jury. In considering this question, we must, of course, take the evidence as strongly as is reasonably possible in favor of plaintiff, for it is only if there is no evidence that would justify a jury in finding the issues in his favor that the court is authorized to instruct a verdict against him. * * * ” And in Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201, 204, this court points out: “Ordinarily -an appellate court in determining an appeal views the evidence, where it is conflicting, in the light most favorable to a sustaining of the lower court’s judgment. (Citing cases.) A reverse rule however applies where, as here the trial court directs the jury to return a verdict for the defendants. The conflicting evidence then must be viewed in a light most favorable to plaintiff. (Citing cases.)” In reviewing the evidence in this case, employing the interpretation as set out in the cases cited above, we hold that the question should have been submitted to the jury to determine whether or not the driver was negligent in operating the ice truck. The trial court therefore erred in directing a verdict in favor of the defendant driver. Since the above discussion effects a complete disposition of this case on appeal, plaintiffs’ other assignments of error will not be considered. The case is reversed and remanded for a new trial not inconsistent with this opinion. Reversed and remanded. Justice A. T. LA PRADE, being disqualified, the Honorable Benjamin BLAKE, Judge of the Superior Court of Graham County, was called to sit in his stead.

LA PRADE, Justice. This is an appeal from a money judgment on a verdict in favor of the appellees (defendants and counterclaimants below), and from the judgment denying the claim for damages on appellant’s complaint. The appellant (plaintiff and counter-defendant below) instituted the action claiming money damages for injury to its automobile alleged to- have been occasioned by the gross and wanton negligence of counterclaimants. The factual situation out of which the action arose is as follows: Appellant’s car was driven by its agent named Webb who on the 31st day of December, 1947 was proceeding in an easterly direction on the main highway numbered US 60-70 between the towns of Superior and Miami, Arizona. The scene of the accident was at a place called Williams. Camp. Shortly before the accident, a Mrs. Clark was proceeding east on this highway. Due to the fact that the road in places was covered with snow and ice Mrs. Clark pulled off the paved surface of the highway and stopped her car practically adjacent and parallel thereto. She testified that due to the condition of the road she was afraid to proceed into a right-hand curve which was some 50 feet in front of her, and that she had intended to make inquiry as to the condition of the road ahead. She had been stopped only a few moments and while still sitting in her car saw the car of Mr. Webb coming from behind her and over a slight rise in the road some 100 feet behind her. Due to the slippery condition of the road (ice-coated) after passing over the rise, Mr. Webb’s car began to skid and he was not able to bring it to a stop until he had contacted the right rear fender of the Clark car with his left front fender. His car barely came in contact with and made a small dent in the fender of her car. After the cars came together, each of the parties a lighted on the pavement and walked between the cars. The bumpers of the cars were then approximately a foot apart. Mr. Webb’s car at this time was pointed in a southeasterly direction with the front wheels and the right rear wheel off the paved portion of the highway. His left rear wheel was approximately 2% feet from the edge of the pavement, leaving his left rear fender protruding into the highway a distance of 3 to 4 feet. The paved portion of the highway at this spot was 20 feet in width. After passing between the cars, Mr. Webb and Mrs. Clark proceeded to stand off the highway to the south of their cars and at the time were exchanging introductions and observing what, if anything, had happened to the cars due to their having bumped together. It was at this time that the counterclaimants’ car approached from their rear and smashed into the rear of the Webb car. Neither Mr. Webb nor Mrs. Clark saw or heard the approaching car. The force of the collision drove the front end of the Webb car into the rear end of the Clark car smashing and denting in the fender, trunk and bumper. Neither of the parties (Webb and Clark) knew what hit them but they found themselves on the ground and knocked several feet farther away from their cars. One of Mrs. Clark’s shoes was thrown a distance of 50 feet. The Rhoton car (counterclaim-ants) skidded across the highway in a northeasterly direction, traveled 147 feet over a pile of limbs and debris and through an arroyo and up against a steep embankment, the top of which was some 8 or 10 feet above the bottom of the arroyo. When the Rhoton car came to rest, its front end was upon the bank with its rear end in the arroyo. The damage to the Rhoton car was so extensive it cost $425.37 to have it repaired. The damage to the Webb car was in the sum of $507.81. Some nine months after the accident, plaintiff below filed its action for damages for injuries to its car, alleging gross and wanton negligence. Defendants filed an answer and counterclaim on November 1, 1948. By their answer they denied the allegations of negligence and as an affirmative defense alleged that the accident described in the complaint was caused by or contributed to by the careless and negligent conduct of plaintiff’s agent in leaving a portion of the automobile parked on the-paved portion of the highway. The defendant Lucy Rhoton claimed damages in the sum of $10,000 on account of personal injuries alleged to- have been received by her. On February 11, 1949, being 13 months and 11 days after the accident and 3 months and 11 days after the defendants had filed their counterclaim for damages for the wife, they filed an amended counterclaim again setting up the negligence of agent Webb in leaving the car parked as he did, increased the claim of Lucy Rhoton from $10,000 to $15,000, included a demand by Mr. Rhoton for $3,500 for personal injuries and $800 for loss of wages. Photographs in evidence conclusively demonstrate the following physical facts: That the Webb and Clark cars at the time they were parked could have been seen from a distance of more than 400 feet by Mr. Rhoton as he approached; that the highway in this particular area was straight; that at the time that Mr. Rhoton was approximately 400 feet away from the Webb and Clark cars he was traveling slightly uphill; that the crest of the rise was approximately 300 feet in front of him; and that after crossing over the crest he had approximately 100 feet to travel before reaching the Webb car. It was on this down portion, the last 100 feet, that he encountered ice and snow. Rhoton testified that before and after he crossed over the rise in the highway he was traveling in second gear “just moseying up the hill; just poking in second gear”. Both Mr. and Mrs. Rhoton testified that they did not see the Webb and Clark cars before reaching the crest of the rise and that as they approached the crest it was not possible to see anything ahead except the road. This statement is refuted by the photographs in evidence. “We are not bound, even as an appellate court, to believe a mere witness in a case when it appears from conclusive physical facts or otherwise patently that such witness is either perjured or clearly mistaken.” Quoted with approval in Cope v. Southern Pac. Co., 66 Ariz. 197, 204, 185 P.2d 772. Mr. Rhoton testified that after he passed the crest and while traveling on the ice his car began to skid and he put on his brakes and that from thereon out he had no control of the car. The sole negligence charged against the counter-defendant is that Webb left the rear end of his car protruding into the south portion of the highway a distance of 3 to 4 feet. Assuming that it did protrude a distance of 3 to- 4 feet, that still left at least 16 feet of open and unobstructed highway in which Mr. Rhoton could have passed the parked cars. Counter-defendant, in its answer to the amended counterclaim, denied any negligence on its part and alleged that the accident was due solely to the gross and wanton negligence of counterclaimants. At the close of the entire case, counter-defendant moved for a directed verdict on its complaint for property damage and for a directed verdict in its favor on counter-claimants’ amended counterclaim. The predicate for the motion was that the uncontradicted evidence showed that the counterclaimants were guilty of reckless misconduct and gross and wanton negligence and that the accident was the result of their sole negligence. Counter-defendant also relied on section 66-116, A.C.A.1939, relating generally to motor vehicles and particularly to “stopping on highways”. Both motions were denied and the jury returned á verdict in favor of counter- claimants in the sum of $15,000, and denied any relief to plaintiff on its complaint for damages to its car. Our statute relating to speed limit on highways is section 66-101, A.C.A.1939, which, in part, reads as follows: “No person shall drive a vehicle upon a highway at a speed greater than is reasonable and prudent, having due regard to the traffic, surface and width of the highway and the hazard at intersections and any other conditions then existing. Nor shall any person drive at a speed which is .greater than will permit the driver to exercise proper control of the vehicle and to decrease speed or to stop as may be necessary to avoid colliding with any person, vehicle or other conveyance upon or entering the highway in compliance with legal requirements and with the duty of drivers and other persons using the highway to exercise due care; provided, that this provision shall not be construed to relieve the plaintiff in any civil action from the burden of proving negligence upon the part of the defendant as the proximate cause of an accident. * * *” Section 66-116 reads as follows: “No person shall leave a vehicle parked, whether attended or not, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to leave such vehicle standing off said portions of such highway; in no event shall any person leave a vehicle standing, whether attended or not, upon any highway unless a clear and unobstructed width of not less than fifteen (15) feet upon the main traveled portion of said highway opposite such standing vehicle be left for free passage of other vehicles thereon. This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway to such extent that it is impossible to avoid temporarily leaving the vehicle in such position.” Section 66-122 reads as follows: “The driver of any vehicle which collides with any person or any vehicle upon the highways, shall immediately stop, give his name and address, the names and addresses of all passengers, not exceeding five (5), in his vehicle and the registration number of his vehicle, to such person or to the occupants of the vehicle collided with, and shall immediately render reasonable assistance, including the carrying of such person to a physician for treatment, if such treatment is required or if carrying is requested by the person struck or by any occupant of the vehicle collided with. Any person knowingly violating this section is guilty of a felony and punishable by a fine of not more than five hundred dollars ($500) or by imprisonment for not more than two (2) years, or by both such fine and imprisonment, and for a second offense is punishable by imprisonment for not more than five (5) years.” At the time Mr. Webb and Mrs. Clark were standing beside their automobiles, they were complying with the direction contained in the last above cited section. Assuming it to be true that a portion of the Webb car was protruding into the-highway a distance of 3 to- 4 feet, that dereliction or failure to conform to the statute which requires that cars be parked off the highway was not in and of itself an act of actionable negligence, but could only be an act of actionable negligence if in fact it proximately caused or contributed to the accident and resulting injuries for which damages are sought. In our view of the evidence, it could have in no manner been an efficient or contributing cause to the accident. The physical facts demonstrate that Mr. Rhoton must have been driving his car at a high rate of speed and without due regard to the traffic, surface and width of the highway and other conditions then existing. After he saw the Webb car or could have seen it, he traveled a distance of approximately 400 feet. After passing the crest of the hill and before crashing into the Webb car, he traveled a distance of approximately 100 feet. In crashing into the rear of the Webb car with such terrific force that he bashed in its rear, caused the front of it to be bashed in when colliding with the Clark car, caused the Clark car to be bashed in, and then skidded a distance of 147 feet across the highway through an arroyo and up against 10-foot embankment where it came to rest, conclusively demonstrates that the accident was due to the sole, gross and wanton negligence of counterclaimants, as defined in Alabam Freight Lines v. Phoenix Bakery, 64 Ariz. 101, 106, 166 P.2d 816; Butane Corporation v. Kirby, 66 Ariz. 272, 187 P.2d 325. In addition to these recitations, the following facts appear of record which further amplify and show counterclaimants-’ conduct was exceedingly reckless and abandoned. Between 200 and 300 feet before they approached the rise there was a speed limit sign of “35 miles per hour”. Beyond that and before reaching the crest there was another road sign which indicated that the road was going to make a turn to- the right; in fact, 50 feet beyond the point of impact the road makes a sharp downhill turn to the right. Counterclaimants’ car at the time of the impact was careening and out of control. Had they not run into- the Webb car, within an instant their car would have been into the curve, with no possibility of its staying on the highway and at a time when it might have been reasonably anticipated that other motorists might be approaching from the opposite direction. We pointed out in Texas-Arizona Motor Freight Co. v. Mayo, 70 Ariz. 323, 220 P.2d 227, that where the accident is due solely to the negligence of the plaintiff and there is no showing of negligence of the defendant, the trial court should direct a verdict for the defendant. There being no evidence in this case from which the jury might properly infer that counter-defendant was guilty of any actionable negligence which caused or contributed to the accident, there was thus presented no question of contributory negligence to be submitted to the jury under section S, article 18 of the Constitution. The judgment is reversed and remanded with instructions to enter judgment for counter-defendant, Motors Insurance Corporation, on counterclaimants’ amended counterclaim, and to enter judgment for plaintiff and against defendants on its complaint for damages to its automobile in accordance with the proof. UDALL, C. J.,. and STANFORD, PHELPS and DE CONCINI, JJ., concur.

LOCKWOOD, Superior Court Judge. The original opinion of the court in the above entitled matter affirming the award of the commission was handed down on May 7, 1951, and is reported in 72 Ariz. 69, 230 P.2d 686. The petitioner has asked for a rehearing; the reasons advanced are based upon three propositions, viz; (1) that the only uncontradicted medical opinion as to the cause of the accident sub stantiated the petitioner’s contention; (2) that the court inadvertently treated the report of the commission’s investigator, Stall-cup, as reasonable and competent evidence to support the award; and (3) that the court inadvertently overlooked the fact that petitioner’s accident and injuries were caused or contributed to by one of the inherent risks of his employment, in that the campfire which he necessarily maintained in his duties as a sheepherder was the cause or contributed to his injury regardless of the reason which may have caused his fall therein. Upon reviewing the record and the original opinion the court believes that it did overlook one element. This court has held that under section 56-973, A.C.A. 1939, the commission has wide latitude in the admission of evidence, including hearsay. If the claimant had made admissions against his interest to the investigator, Stallcup, directly, Stallcup’s testimony regarding the same would properly have been admitted at the commission hearing. However, as has been pointed out by claimant, the conversation between Stallcup and the claimant was held through an interpreter whose services were apparently volunteer and not even under oath, as required in ordinary judicial procedure. Since the commission, unlike ordinary judicial- tribunals, may entertain hearsay evidence if such admissions had been obtained under circumstances similar to-those existing in the courts, that is, through a duly qualified interpreter under oath to interpret truly and correctly through a qualified officer of the tribunal, the testimony of Stall-cup as to the conversation so interpreted to him might have been admissible under the broad jurisdiction given to the commission. However, the spirit and intent of the workmen’s compensation Act is to protect and compensate injured workmen who fall within the purview of the Act, and endow the commission with broad discretion but not unlimited jurisdiction. The commission must therefore provide proper safeguards for the purpose of ascertaining the substantial rights of the parties and carrying out the spirit of the Act, in the admission of testimony, including hearsay. As pointed out, in this case the entire investigation on the part of Stallcup was handled casually, at a very short time after the accident, while petitioner was still in a serious physical condition, and through an interpreter who was not shown to have been duly qualified and under oath to interpret strictly and carefully. Under such circumstances we do not believe that the legislature intended that the provisions of section 56-973, supra, should be extended to permit hearsay testimony on the part of an investigator obtained through a casual volunteer interpreter who was not qualified through official employment by a public agency or tribunal, and not under oath. Such casual conversations might easily be misinterpreted, through lack of skill or understanding on the part of the inter preter, and could not best be calculated to ascertain the substantial rights of the party and carry out the spirit of the workmen’s compensation Act. In the instant case, the interpreter appeared at the commission hearing and, under oath, denied both that the claimant had made the statements and that she had interpreted the conversation as reported and as testified to by Stallcup, but on the contrary stated positively that the claimant told her that he had' stumbled over a clump of dirt and that she had so interpreted his statement to Stallcup. Her testimony on behalf of claimant was, however, only corroborative of a self-serving statement. We are therefore of the opinion that the testimony of the investigator, Stallcup, based on hearsay obtained by such an uncertain and unguarded manner, should not have been admitted by the commission, and therefore could not be the' basis of a conflict of evidence. There remains, then, only the testimony of the claimant, who is an interested party, together with that of Dr. Poison, as to the cause of the accident. This court has held consistently that the claimant must sustain the burden of proof that he is within the terms of the workmen’s compensation Act and thereby entitled to compensation, and also that the commission may disregard the testimony of an interested party. Dr. Poison’s testimony as shown by the record is somewhat confusing in phraseology. He stated that he had examined the claimant, Gomez, and found he was suffering from arteriosclerosis and hypertension, either of which might have caused a stroke or “periodic periods of complete unconsciousness due to lack of circulation in the brain”, which latter quoted phrase, in layman’s language, we understand to mean a “fainting spell”. He testified positively there was no evidence of a stroke, and that Gomez’ burns were so severe that he must have been entirely unconscious for a long period of time to sustain them, and that a person with a heart attack or who was not paralyzed could have rolled out of the fire before becoming so seriously injured. The only obvious and reasonable inference from such testimony must be that Gomez became unconscious for a long period of time, which unconsciousness could not be attributed to the only physical disabilities from which Gomez suffered. While the commission may disregard the testimony of an interested party, it may not arbitrarily disregard the only reasonable inference which can be drawn from the uncontradicted testimony in the particular case. Wiggins v. Pratt-Gilbert Hardware Co., 48 Ariz. 375, 62 P.2d 124. There was evidence that there were clumps of dried earth about claimant’s camp, which was uncontradicted (the investigator only testifying negatively that he did not “see” them), and the only reasonable inference that could be drawn, taking the doctor’s testimony as a whole, was that the claimant stumbled and fell into the fire, causing his unconsciousness and subsequent severe burns. For the foregoing reasons, the award is set aside. UDALL, C. J., and PHELPS and DE CONCINI, JJ., concur. Justice STANFORD, being disqualified, the Honorable Loma E. Lockwood, Judge of the Superior Court of Maricopa County, was called to sit in his stead.

PHELPS, Justice. This case comes to us on certiorari for the review of an award of the Industrial Commission entered on November §, 1950, denying further compensation to petitioner. On May 26, 1948, petitioner was injured by accident arising out of and in the course of his employment as a miner with the Eagle Picher Mining and Smelting Company. The injury sustained by petitioner resulted from falling backwards over an 8x8 timber and consisted primarily of a compound fracture of the 9th, 10th and 11th ribs on the right side. The material facts relating to the injury and the various applications for hearing, rehearings and readjustments made by petitioner will be hereinafter set forth. The commission finally, on November 8, 1950, denied further relief and again affirmed its findings and awards previously made. It is this order that the court is asked to review. We have consistently adhered to the rule that where there is a conflict in the evidence before the commission, its findings will not be disturbed and that it is our duty in such cases to view the evidence in the most favorable light to sustain the findings and award of the commission. If there is any substantial evidence to support such findings and award it must stand. Let us see what the evidence discloses in the instant case. Dr. Meade Clyne, physician for the employer, attended petitioner immediately after his injury and he and his associate have at all times since rendered him medical and surgical aid. The petitioner was discharged by Dr. Clyne on the 11th day after the accident and recommended for regular work. Application had been duly made for compensation and on July 16, 1948, the commission made its award terminating compensation on the basis of total temporary disability and for accident benefits. It later developed that the 11th rib had not properly reunited and two operations were required in order to correct this defect, the last of which being performed on February 14, 1949. On the following May 13th petitioner was again released by Dr. Clyne and recommended ready for regular work. On June 20, 1949, a medical board consisting of Doctors Lindsay E. Beaton, Alfred O. Heldobler and Dr. Clyne made a report in which they stated after examination of the petitioner: “It is the opinion of the examiners that in all probability the present disability is not-a result of his injury, but the result of extensive hypertrophic changes in the lumbar and dorsal vertebrae which were preexisting.” The commission thereafter on July 7th of that year made its findings and award allowing compensation from May 26, 1948, through July 6, 1948, and October 19, 1948 through May 12, 1949, and for accident benefits until June 17, 1949. Upon a later application for readjustment and reopening of the claim the commission appointed Doctors George Dixon, Lindsay E. Beaton, H. D. Cogswell and Meade Clyne as a medical board to examine and report on the condition of the petitioner and in that report they found and reported hypertrophic-arthritic changes in his spine and a minimal herniation of the lung pleurae in the vicinity of the 11th rib and that petitioner had sustained a 10% total permanent functional general disability as a result of his injury. Dr. Clyne later wrote a letter to the commission in which he stated that in reviewing the reports of consultations that were held in regard to petitioner’s case, he desired to change his opinion as to the 10% total permanent functional general disability to read that “we therefore feel this man can be said to have recovered from the result of his injury of May 26, 1948, and no further treatment is indicated.” A study of the evidence discloses, however, that neither Doctors Cogswell, Beaton nor Dixon ever stated that they desired to change their opinion as to the 10% functional disability. Finally at a hearing before the commission on October 7, 1950, a number of doctors testified, among whom was Dr. A. N. Shoun who stated that he found in the area where the operation was performed upon the 11th rib a herniation approximately 5x8 cms. in diameter with a longer diameter in the line with the ribs and that there was a tenderness over the distribution of the 10th and 11th intercostal nerves projected on to the abdominal wall, both of a deep and superficial nature with hyperesthesia on light pressure. He further stated he thought that the hypertrophic changes in his spine shown by the X-ray were aggravated by the injury. We quote his language: “I think the injury made the hypertrophic changes, produce symptoms in the rest of his back.” Dr. Cogswell stated at this hearing that the hypertrophic changes of the lower dorsal and upper lumbar vertebrae could be to some degree the cause of symptoms that he complained of when he saw him. Dr. Lindsay E. Beaton, neurologist, who was a member of the medical board finding a 10% permanent disability, stated that being a neurologist he concurred in the finding of a 10% functional disability because of the opinion expressed by surgeons and orthopedists on the board, who were specialists in that line. Dr. Clyne testified that the conclusions of the medical board of which he was a member, that petitioner had suffered a 10% permanent disability was a more or less compromise agreement and that the decision was reached just “to get the thing closed up.” He also stated that the pain which petitioner claimed was located in his back and different parts of his body might have been there “* * * but it wasn’t due to a local condition. It could be referred from some other place, nerves coming out from the spinal column. And then our final conclusion was, after consultation in our office with three or four fellows, one a specialist in this line, that his pain was due to hypertrophic changes that were occurring in his spine causing pressure on some nerves in there that referred the pain around to this area. * *” (Emphasis supplied.) This latter view of Dr. Clyne’s reaffirms the findings previously made by a medical board consisting of Doctors Clyne, Heldobler and Beaton. Dr. Clyne was later asked the following questions and made the following answers: “Q. What kind of injury did he have near the spine? A. Well, that was the bruising, discoloration in the skin. . “Q. And you also speak of hypertrophic changes. Would this injury aggravate it? A. I don’t think so. I don’t know though. I couldn’t swear they did or they didn’t. Ordinarily superficial wounds does not influence the deposit of calcium in the spine. I don’t think so.” The doctor in referring to superficial wounds evidently had reference to bruising and discoloration in the skin as a compound fracture of three ribs would certainly not be considered superficial wounds. Although it is agreed by all the doctors there has resulted a herniation in the area of the 11th rib where the operation was performed, it will be observed from the evidence above related that the issue in this case is narrowed down Jo one thing. All the physicians agree that petitioner is and has been for some time suffering from arthritis of the spine. Doctors Clyne, Heldobler and Beaton state in their report of June 20, 1949 that “in all probability the present disability is not a result of his injury but the result of extensive hypertrophic changes in the lumbar and dorsal vertebrae which were preexisting.” There was no opinion expressed in that report as to whether petitioner’s injury aggravated his arthritic condition. Dr. Shoun stated on the stand that in his opinion the injury sustained by petitioner had the effect of aggravating the hypertrophic changes in the spiné resulting in a permanent partial disability, and in his report of January 11, 1950, he stated “that complicating factors aggravate, or are-aggravated by the results of the injury” (evidently referring to the arthritic condition mentioned in his testimony). Dr. Clyne was the only other physician who. attempted to express an opinion upon the question of whether petitioner’s injuries aggravated the hypertrophic changes in his spine and as shown above, Dr. Clyne stated that he didn’t know, he couldn’t swear they did or they didn’t but that he didn’t think so. We are of the opinion that this statement has no probative value whatever. Thus the unequivocal opinion of Dr. Shounthat the injury did aggravate and brought about the symptoms of which petitioner complains, stands unchallenged. We therefore hold that there is no substantial evidence to sustain the finding of the commission denying petitioner further compensation. Award set aside. UDALL, C. J., and STANFORD, DE CONCINI and LA PRADE, JJ., concur.

STANFORD, Justice. After the court handed down its written opinion in this case, reported in 71 Ariz. 254, 226 P.2d 154, a motion for a rehearing was granted. At this time various political subdivisions of the state filed a petition for leave to file briefs amici curise, which petition was duly granted. Brief of amici curise was filed in support of appellee’s motion for rehearing. On reconsideration of the case from the various contentions set forth, we are of the opinion that our former opinion correctly disposed of the case. We adhere to the rule announced therein that the Roosevelt Irrigation District was a political subdivision of the state, acting in its proprietary capacity, and while acting in such capacity is liable for its negligence. As pointed out in our former opinion, the constitutional amendment, Section 7, Article 13, was adopted for the purpose of granting tax immunity to irrigation, power, electrical, agricultural im provement, drainage, and flood control districts, and tax levying public improvement districts. The true character of such districts was analyzed by this court in Day v. Buckeye Water, etc. Dist., 1925, 28 Ariz. 466, 237 P. 636, 638, as follows: “Counties, cities, towns, and municipalities all belong to a class of subdivisions of the state primarily established for what are commonly called political and governmental, as aside from business purposes. Any exercise of the latter function is merely incidental to their existence and in no way necessary for it. And in the past, and particularly when it took one of the forms prohibited by the section in question (sec. 7, art. 9, Const.), such exercise has generally resulted so disastrously to the public that the wisdom and purpose of the constitutional provision as applied to such subdivisions is plain. On the other hand, irrigation districts and similar public corporations, while in some senses subdivisions of the state, are in a very different class. Their function is purely business and economic, and not political and governmental. They are formed in each case by the direct act of those whose business and property will be affected, and for the express purpose of engaging in some form of business, and not of government. The power of incurring obligations of any nature is ultimately left in the hands of those whose property is affected thereby.” “Districts of the kind involved in this proceeding therefore belong to that class of organizations, once rare but becoming more and more common, established for the pecuniary profit of the inhabitants of a certain territorial subdivision of the state, but having no political or governmental purposes or functions. In some respects these organizations are municipal in their nature, for they exercise the taxing power, the greatest attribute of sovereignty, and can compel the inclusion of unwilling landholders within their bounds. In other ways they resemble private corporations, for they are liable for the torts of their servants in the same manner and to the same extent, and indeed generally have the same rights and responsibilities. Probably the best definition we can give then is to say that they are corporations having a public purpose, which may be vested with so much of the attributes of sovereignty as are necessary to carry out that purpose, and which are subject only to such constitutional limitations and responsibilities as are appropriate thereto.” Maricopa County Municipal Water Conservation Dist. No. 1 v. La Prade, 45 Ariz. 61, 40 P.2d 94, 100. The actual operation and functioning of the district after the adoption of the constitutional amendment, supra, was in the same factual manner as at the time of the Day case. The adoption of the constitutional amendment in no sense altered the inherent characteristics of the district. With this observation in mind, we desire to point out that this amendment only attempted to vest such districts with all of the rights, privileges, benefits, immunities, and exemptions granted municipal and political subdivisions under the Constitution or any law of the state or the United States. There are no constitutional or statutory provisions exempting municipalities or political subdivisions from tort liability when committed in the prosecution of either governmental or proprietary activities. By court decisions political subdivisions, as distinguished from municipalities, have been vested with immunity from their acts of negligence arising out of purely governmental activities. The state, State v. Sharp, 21 Ariz. 424, 189 P. 631; State v. Dart, 23 Ariz. 145, 202 P. 237; school districts, School Dist. 48 of Maricopa County v. Rivera, 30 Ariz. 1, 243 P. 609, 45 A.L.R. 762; and counties, Hartford Accident & Indemnity Co. v. Wainscott, 41 Ariz. 439, 19 P.2d 328. But in this jurisdiction immunity from tort liability is denied to municipalities even though arising out of the governmental activity in the construction or repair of streets and sidewalks. Such has been the "law" (court made) both before the constitutional amendment under consideration, Schultz v. City of Phoenix, 1916, 18 Ariz. 35, 156 P. 75; Dillow v. City of Yuma, 1940, 55 Ariz. 6, 97 P.2d 535; and since the constitutional amendment — City of Phoenix v. Weedon, 1950, 71 Ariz. 259, 226 P.2d 157. The same rule is applicable to municipal corporations for their negligence in the construction or repair of sewers, City of Phoenix v. Johnson, 51 Ariz. 115, 75 P.2d 30; defects in the construction of culverts for drainage, City of Tucson v. O'Rielly Motor Co., 64 Ariz. 240, 168 P.2d 245; maintaining a sewer system so as to constitute a nuisance, City of Phoenix v. Johnson, supra. On the other hand, immunity has been granted to a municipality for its negligence resulting in damage due to a defective automobile used in the collection of garbage, upon the theory that such work was governmental in nature. Jones v. City of Phœnix, 29 Ariz. 181, 239 P. 1030. On the same theory, immunity was granted to the municipality for the negligent operation of an automobile by a police officer engaged in his regular line of duty. City of Phœnix v. Greer, 43 Ariz. 214, 29 P.2d 1062. But at no time in this jurisdiction, so far as we are aware, have municipal corporations been immune from liability for their torts committed in the performance of proprietary pursuits, Sumid v. City of Prescott, 27 Ariz. 111, 230 P. 1103; Jones v. City of Phœnix, supra. Regardless of the fact that our cases may show some inconsistency in drawing a line of demarcation between what is governmental and what is proprietary, we experience no difficulty in determining that the appellee corporation is in essence a business corporation and that such attributes of sovereignty as have been conferred upon it are only incidental and were conferred for the purpose of better enabling it to function and accomplish the business and economic purposes for which it was organized. For the purpose of clarity we deem it advisable to more clearly enunciate the duty of the district with reference to the fence that it had constructed on the canal banks. Appellee and amici curiae earnestly insist that there was no duty upon the district in the first instance to fence the canal, and assert that if there was no such duty it was then under no obligation to maintain the fence. For the reasons set forth in our case of Salladay v. Old Dominion Min. Co., 12 Ariz. 124, 100 P. 441, 442, we are of the opinion that the rule in this jurisdiction is, and should continue to be, that an irrigation district is under no legal duty to fence such a canal as the one under consideration. In the Salladay case this court said: “ * * *. It is a matter of common knowledge that alluring and attractive flumes, such as the one in question in thi-s case, carrying running water, are extensively used in this territory, not only by miners in the necessary and proper conduct of their business, but by farmers in the necessary diversion and application of the public streams to a beneficial use upon their lands in the cultivation of their crops. Not only flumes but irrigation ditches, large and small, similar in purpose, construction, and use, and equally dangerous and alluring to the child, are to be found throughout the territory wherever cultivation of the land is carried on, and such conduits, practically impossible to render harmless, are indispensable for the maintenance of life and prosperity. * * * ” While the defendant in that case owned the land on which the flume was located and plaintiff relied on the “attractive nuisance doctrine”, the principle laid down as a matter of public policy is that it is not negligence for the owner of an irrigation canal to fail to fence it. Particularly would that seem to be true under the circumstances in the present case. Had defendant left its canal unfenced it would not have been guilty of negligence in so doing. The complaint, however, alleges that defendant erected the fence for the purpose of preventing cattle from entering the canal and being trapped therein and that plaintiff knew thereof and relied upon the fence as a protection for his cattle, and that after building the fence the defendant negligently caused it to be partially destroyed so that it no longer would protect cattle from falling into the canal, of which destruction defendant had full knowledge but gave no notice thereof to plaintiff and plaintiff was ignorant of the fact. It is the law that if one who is under no duty to another to protect him in person or property voluntarily assumes such a duty, he must perform it in a reasonably careful manner, and while he is not bound to continue that duty permanently he must see that reasonable notice is given if he intends no longer to perform it. Cummings v. Henninger, 28 Ariz. 207, 236 P. 701, 41 A.L.R. 207; Owl Drug Co. v. Crandall, 52 Ariz. 322, 80 P.2d 952, 120 A.L.R. 1521; Cavanagh v. Hoboken L. & I. Co., 93 N.J. L. 163, 107 A. 414, 5 A.L.R. 933; Brown v. Erie R.R. Co., 87 N.J.L. 487, 91 A. 1023. We are of the opinion that the complaint states a cause of action and that the trial court was in error in dismissing plaintiff’s complaint. For the reasons stated, the judgment is reversed and the cause remanded with instructions to overrule defendant’s motion to dismiss, and to reinstate plaintiff’s complaint. UDALL, C. J., and PHELPS, DE CONCINI and LA PRADE, JJ., concur.

OPINION NORRIS, Judge: ¶ 1 This appeal arises out of the superior court’s dismissal of a complaint filed by homeowners and renters in three Mesa subdivisions to enjoin the City of Mesa and the State, through the Arizona Department of Transportation (“ADOT”), from diverting and channeling excess storm water onto their properties. The dispositive issue on appeal is whether Arizona Revised Statutes (“A.R.S.”) section 12-1802 (2016) precludes the superior court from granting the requested injunctive relief. Because A.R.S. § 12-1802 does not bar the injunctive relief requested in the complaint, we reverse the superior court’s dismissal of the complaint and remand for further proceedings consistent with this opinion. FACTS AND PROCEDURAL BACKGROUND ¶ 2 The City operates a sewer drainage system for managing storm water, which is connected to numerous retention basins, including a City-owned park, Emerald Park. The State, through the ADOT, controls a channel which it uses to collect storm water from a portion of the U.S. Route 60 highway (“U.S. 60”). Combined, the City and State (collectively, “Defendants”) use the drainage system and channel (collectively, the “System”), in part, to divert, channel, and retain storm water from the U.S. 60 and other areas of the City into retention basins, including Emerald Park. ¶ 3 Emerald Park is a terminal retention basin for most of the storm water collected from the U.S. 60 and from approximately 20 square miles of the City (the “Tributary Area”), because it does not have an effective emergency overflow system which would allow storm water to be pushed further downstream in the event Emerald Park overflows. Thus, Emerald Park operates as the endpoint retention basin for most of the storm water Defendants receive from the U.S. 60 and Tributary Area. ¶4 During the morning of September 8, 2014, heavy rains fell in the City. Rain continued until about ten a.m. Although Emerald Park collected some water from the storm, by the time the rain stopped Emerald Park was not at full capacity. Several hours after the rain had stopped, the rainwater that had fallen and collected in and around three subdivisions in the City—where the Plaintiffs owned or rented homes—had begun to recede. ¶ 6 After that, however, Defendants collected, concentrated, and pumped excess storm water from the U.S. 60 and the Tributary Area into Emerald Park. Because Emerald Park did not have an effective form of emergency overflow relief, the storm water flooded onto Plaintiffs’ neighborhoods, homes, and properties. Even after the storm water inundated the Plaintiffs’ neighborhoods, homes, and properties, Defendants continued to concentrate and divert storm water into Emerald Park. Indeed, the State rejected the City’s request to pump water from Emerald Park back into the channel. The flooding significantly damaged the Plaintiffs’ homes and properties. ¶ 6 Plaintiffs sued Defendants alleging, in part, that Defendants had negligently operated the System and used their properties as “ad hoc” overflow relief for Emerald Park without just compensation in violation of the Arizona Constitution, Plaintiffs asked the superior court to enjoin Defendants from operating the System in a manner that concentrated and diverted storm water into Emerald Park without effective overflow relief. Specifically, Plaintiffs requested the superior court enjoin Defendants from: (a) using the real and personal property of [Plaintiffs] as an ad hoc overflow relief for Emerald Park without due process or just compensation; (b) concentrating and diverting water into Emerald Park beyond its capacity unless and until an effective Overflow Relief is provided; (c) operating the [System] in such a manner as to make Emerald Park the retention basin of last resort in the Tributary Area; and (d) collecting storm water from the U.S. 60 or Tributary Area and pumping or otherwise sending it to Emerald Park—whether through the Storm Sewer Pipes or Channels—so as to exceed its capacity and overflow into the neighborhoods and properties of the [Plaintiffs]. ¶ 7 The State moved to dismiss Plaintiffs’ complaint arguing, in part, A.R.S. § 12-1802(4) and (6) prohibited the superior court from granting the requested injunctive relief. Section 12-1802(4) states that an injunction shall not be granted “[t]o prevent enforcement of a public statute by officers of the law for the public benefit,” and, AR.S. § 12- 1802(6) states an injunction shall not be granted “[t]o prevent the exercise of a public or private office in a lawful manner by the person in possession.” Treating both subsections as if they were identical, the State generally argued A.R.S. § 12-1802(4) and (6) barred injunctive relief to prevent a state agency from performing its statutory duties. Thus, it argued the superior court could not grant the requested injunctive relief because Plaintiffs were asking the court to “issue an order telling Defendants how to design and reconstruct the channel and retention basin for U.S. 60”—functions not within the “province” of the court. ¶ 8 The superior court granted the State’s motion to dismiss, focusing exclusively on A.R.S. § 12-1802(6). The court found A.R.S. § 12-1802(6) barred the requested injunctive relief because Plaintiffs’ complaint had not alleged the State had acted unlawfully. After the City joined in the State’s motion to dismiss, the superior court entered a judgment in favor of Defendants dismissing Plaintiffs’ complaint with prejudice. DISCUSSION ¶ 9 Plaintiffs argue the superior court should not have dismissed their complaint pursuant to A.R.S. § 12-1802. Exercising de novo review because this issue requires us to construe A.R.S. § 12-1802(4) and A.R.S. § 12-1802(6), we hold the superior court should not have dismissed the complaint under either subsection. See City of Casa Grande v. Ariz. Water Co., 199 Ariz. 547, 550, ¶ 6, 20 P.3d 590, 593 (App. 2001) (appellate court reviews de novo interpretation of a statute) (citation omitted); see also Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012) (dismissal of complaint reviewed de novo) (citations omitted). As explained below, A.R.S. § 12-1802(4) did not prohibit the requested injunctive relief, see supra ¶6, because Plaintiffs were not seeking to enjoin the enforcement of a public statute within the meaning of A.R.S. § 12-1802(4), and A.R.S. § 12-1802(6) did not prohibit the requested injunctive relief because that section does not apply when public officers exceed their authority or exercise discretionary authority in an unreasonable and arbitrary manner. I. Section 12-1802(4) ¶ 10 Although the superior court granted Defendants’ motion to dismiss under A.R.S. § 12-1802(6), Defendants also argued A.R.S. § 12-1802(4) barred the injunctive relief requested by Plaintiffs. Because Defendants have repeated this argument on appeal, we address it first. Although Arizona courts have generally applied A.R.S. § 12-1802(4) and (6) together, insofar as A.R.S. § 12-1802(4) has separate elements from A.R.S. § 12-1802(6), the former statute only bars injunctive relief when a party seeks to enjoin conduct authorized by a valid public statute. ¶ 11 Hislop v. Rodgers, 54 Ariz. 101, 92 P.2d 527 (1939), is illustrative. There, a city ordinance authorized the abatement of public nuisances. Id. at 111, 92 P.2d at 532. Pursuant to the ordinance, city police padlocked two businesses, and left police guards at the businesses to stop the businesses’ alleged improper conduct. Id. at 105, 92 P.2d at 529. The business owners sought a temporary restraining order and permanent injunction from the superior court to forbid the police from interfering with their businesses. Id. After the superior court granted the temporary restraining order, city officers petitioned the Arizona Supreme Court for a writ of prohibition to prevent the superior court from granting the business owners’ injunc-tive relief and from taking any further action. Citing the predecessor to A.R.S. § 12-1802(4), the officers argued the superior court did not have “jurisdiction” to enjoin their enforcement of the ordinance. Id. at 105-06, 92 P.2d at 529-30. The supreme court agreed. ¶ 12 The supreme court stated that, under the predecessor statute to AR.S. § 12-1802(4), when public officers attempt to enforce a valid public statute, a court is “without jurisdiction to issue a temporary restraining order or writ of injunction.” Id. at 113, 92 P.2d at 533. The court then held the business owners had sought an injunction directed at enforcement of a valid public statute (the city ordinance) as the injunction sought to prevent the officers from enforcing the ordinance. Id. at 120, 92 P.2d at 535-36. Accordingly, the supreme court concluded the superior court did not have jurisdiction to issue the temporary restraining order or enjoin the officers’ enforcement of the ordinance. Id. at 121, 92 P.2d at 536. ¶ 13 Similarly, in Council of City of Phoenix v. Winn, 70 Ariz. 316, 220 P.2d 222 (1950), a city ordinance declared the operation of “mechanical grabbing machines” a public nuisance and illegal. After the chief of police notified a business owner the city intended to seize his grabbing machines pursuant to the ordinance, the business owner obtained an injunction from the superior court enjoining the city and its officers from doing so. Id. at 317-18, 220 P.2d at 222-23. The city appealed, challenging the “jurisdiction” of the superior court to grant injunctive relief against enforcement of a public statute. Id. at 318, 220 P.2d at 223. ¶ 14 Noting that the business owner had not attacked the validity of the ordinance, but had only asserted the grabbing machines were not gambling devices, the Arizona Supreme Court concluded the city and its officers were attempting to enforce a public statute for the public benefit, and, therefore, the superior court had improperly issued the injunction. Id. ¶ 15 Examining Arizona case law addressing a court’s power to grant injunctive relief to prevent the enforcement of a public statute, the court explained the superior court “was without jurisdiction” to enjoin the city and its officers from seizing the grabbing machines, reasoning that, when the “ Validity of the law whose execution it is sought to enjoin is not attacked or when, even though attacked, its validity is beyond question and the power of an officer to enforce it, if valid, is plain, the court has no jurisdiction to issue an injunction restraining its enforcement.’” Id. (quoting Corbin v. Rodgers, 53 Ariz. 35, 41, 85 P.2d 59, 62 (1938)). Thus, under A.R.S. § 12-1802(4), a court cannot enjoin public officers from engaging in conduct authorized by a valid public statute. Winn, 70 Ariz. at 318, 220 P.2d at 223; see also Corbin, 53 Ariz. at 41, 85 P.2d at 62 (court lacked “jurisdiction” to enjoin county officers from enforcing valid penal statute). ¶ 16 Arizona appellate courts, however, have also concluded that A.R.S. § 12-1802(4) does not prevent a court from granting in-junctive relief when a public officer enforces a public statute in a manner that exceeds the officer’s power—in that case, the party is not actually seeking to enjoin enforcement of a public statute. For example, in McCluskey v. Sparks, 80 Ariz. 15, 291 P.2d 791 (1955), taxpayers sought an injunction to prevent a county assessor and a county board of equalization from “extending [their] property ... on the tax role.” Id. at 17, 291 P.2d at 792. The superior court dismissed their complaint. Id. On appeal, the assessor and board argued, in part, that the supreme court should affirm the dismissal because the taxpayers were attempting to enjoin enforcement of public statutes that authorized the assessor to assess the values of their properties and the board to equalize the assessed values. Id. at 20, 291 P.2d at 794. ¶ 17 On review, the Arizona Supreme Court explained the taxpayers had alleged the assessor had systematically and intentionally overvalued the taxpayers’ properties as compared to other similar properties and the board had failed to equalize the assessed values, even though it knew the assessor had disproportionately assessed the taxpayers’ properties. Id. The court condud- ed the taxpayers were not attempting to enjoin enforcement of public statutes—that is, “to enjoin the assessor from assessing their property or the board of equalization from equalizing the same in accordance with the [applicable] statutes”—but, rather were seeking an order requiring them to comply with applicable Arizona tax statutes and state and federal constitutional provisions. Id. at 20-21, 291 P.2d at 794. The court stated the taxpayers’ complaint contained sufficient factual allegations that, if true, stated a cause of action for injunctive relief. Id. at 21, 291 P.2d at 794. ¶ 18 As McCluskey demonstrates, A.R.S. § 12-1802(4) does not bar a court from granting injunctive relief against a public officer who has authority to act pursuant to a valid public statute, if the requesting party is seeking to enjoin conduct that goes beyond the officer’s statutory power. See Crane Co. v. Ariz. State Tax Comm’n, 63 Ariz. 426, 445, 163 P.2d 656, 664 (1946) (court empowered to grant injunction despite statutory predecessor to A.R.S. § 12-1802(4) even though there was no question as to validity of statute or right of public officers to enforce it; anti-injunction statute inapplicable when public officers exceed their authority or act beyond their power), overruled in part on other grounds by Valencia Energy Co. v. Ariz. Dep’t of Revenue, 191 Ariz. 565, 959 P.2d 1256 (1998); Berry v. Foster, 180 Ariz. 233, 235, 883 P.2d 470, 472 (App. 1994) (superior court empowered to enjoin a school board from investigating and censuring a member of the board when neither the state constitution nor applicable statutory scheme expressly or impliedly authorized the board to investigate or censure a board member). ¶ 19 Here, Plaintiffs were not seeking to enjoin the enforcement of any public statute. Although Defendants cite various statutes authorizing them to construct drainage channels, manage retention basins, and other drainage components relating to storm water management, Plaintiffs did not seek to enjoin any of the activities authorized by these statutes. See A.R.S. § 28-332(A), -(B)(3) (Supp. 2016) (ADOT granted exclusive control and jurisdiction over state highways; authorized to design and construct “transportation facilities” and maintain and operate state highways); A.R.S. § 9-276(A)(3), (8) (2008) (cities authorized to build and repair sewers, tunnels, and drains); A.R.S. § 9-463.05(A), - (T)(7)(c) (Supp. 2016) (authorizing municipalities to assess fees to a development for necessary public services including storm water, drainage, and flood control facilities); A.R.S. § 48-572(A)(4)-(5) (Supp. 2016) (authorizing governing body of municipality to order reconstruction or acquisition of drains, sewers, and channels for drainage purposes or for carrying storm water when public interest or convenience requires). Rather, Plaintiffs sought to enjoin Defendants from allegedly exceeding their power by negligently managing the System, knowingly breaching Emerald Park’s retention capacity, and using their properties as “ad hoc” overflow relief for Emerald Park without just compensation. See supra ¶¶ 4-6. Accordingly, A.R.S. § 12-1802(4) did not bar Plaintiffs’ request for injunctive relief as a matter of law. II. Section 12-1802(6) ¶ 20 Unlike A.R.S. § 12-1802(4), which focuses on the court’s power to enjoin a public statute, A.R.S. § 12-1802(6) focuses on a public officer’s exercise of the powers of the office. As relevant here, A.R.S. § 12-1802(6) bars injunctive relief when it is sought to prevent an officer from exercising the duties of a public office “in a lawful manner.” Accordingly, both Plaintiffs and Defendants agree this section does not bar injunctive relief when a public officer is acting unlawfully, but they part company regarding what constitutes an unlawful exercise of a public office. ¶ 21 Plaintiffs argue A.R.S. § 12-1802(6) is inapplicable when public officers either exceed their authority or arbitrarily or unreasonably exercise them authorized discretion. In contrast, Defendants argue A.R.S. § 12-1802(6) prohibits a court from enjoining discretionary actions that fall within a public officer’s legal authority. Thus, according to Defendants, because Plaintiffs never alleged they were acting outside of their “executive functions in designing, operating, and maintaining the [System],” A.R.S. § 12-1802(6) barred the requested injunctive relief. We agree with Plaintiffs and conclude public officers act “unlawfully” when they exceed their authority or exercise discretionary authority in an unreasonable or arbitrary manner. ¶ 22 As noted above, Arizona courts have generally applied A.R.S. § 12-1802(6) and (4) together, see supra ¶10, and have concluded unlawful conduct occurs when a public officer exceeds his or her authority by acting without authority. Thus, for example, in Board of Regents of Universities & State College v. City of Tempe, 88 Am. 299, 356 P.2d 399 (1960), the Arizona Board of Regents sought to enjoin the City of Tempe from demanding that the Board comply with Tempe’s building codes and regulations in constructing and remodeling buildings on the Tempe campus of Arizona State University. The superior court found that, as a matter of law, Tempe had the power to regulate the construction and maintenance of the University’s buildings, and denied injunctive relief. Id. at 301, 356 P.2d at 400. The Board appealed. ¶ 23 On appeal, our supreme court rejected Tempe’s argument that pursuant to A.R.S. § 12-1802(4), the superior court did not have “jurisdiction” to issue an injunction. Id. at 302, 356 P.2d at 400. Although the court focused on A.R.S. § 12-1802(4), it recognized that it had “on several occasions held an injunction to be a proper remedy where it is alleged that the statute is invalid or being applied in an unauthorized manner.” Id. (citations omitted). Thus, because the court ruled the Board, and thus the University, was not subject to Tempe’s codes and regulations, it reversed the superior court’s judgment and directed it to grant the injunctive relief requested by the Board. Id. at 312, 356 P.2d at 407-08. ¶ 24 The Arizona Supreme Court has also recognized that “unlawful” includes circumstances when a public officer acts unreasonably or arbitrarily. In Williams v. Superior Court In and For County of Pima, 108 Ariz. 154, 494 P.2d 26 (1972), a school district alleged that flights by the Arizona Air National Guard during school hours were making a “great deal of noise” and disturbing the children at the district’s school. Id. at 155, 494 P.2d at 27. Accordingly, the district sought to enjoin the Governor, in his capacity as Commander-in-Chief of the National Guard, “from permitting the National Guard from taking off or landing within the airspace immediately above or in close proximity” to the school absent an emergency situation. Id. The superior court refused to dismiss the district’s complaint. Id. ¶25 The supreme court concluded that neither A.R.S. § 12-1802(4) nor A.R.S. § 12-1802(6) barred the district’s request for in-junctive relief. Id. at 158, 494 P.2d at 26. Of significance to Defendants’ argument here, the court noted the district had not alleged the Governor had violated any applicable rules or regulations. Id. at 155, 494 P.2d at 27. Nonetheless, the court concluded that whether the Governor had acted in a lawful manner presented a question of fact that could only be determined after a trial. Id. at 158, 494 P.2d at 26. ¶26 Of further significance to the argument made by Defendants, the district in Williams had not challenged the Governor’s authority to authorize the flights; thus, the district had not alleged the Governor was acting without authority. Therefore, Williams implicitly recognized that a public officer can act “unlawfully”—by acting unreasonably or arbitrarily—in exercising his or her authority and that such conduct renders A.R.S. § 12-1802(6) inapplicable. ¶ 27 Wales v. Tax Commission, 100 Ariz. 181, 412 P.2d 472 (1966), explicitly recognized that a court may enjoin acts by public officers who have authority to act, but arbitrarily or unreasonably exercise them authority. There, the State Tax Commission and the Arizona Attorney General proposed to dis close certain tax information to the Pima County Attorney they had obtained from a grand jury investigation. Id. at 182, 412 P.2d at 473. The Attorney General argued that because he had inspected the tax information and concluded that certain individuals “may” have committed tax violations, he had the authority to direct the State Tax Commission to disclose the tax information to the County Attorney for the puipose of instituting an action to enforce various Arizona tax statutes. Id. at 182-83, 412 P.2d at 473-74. In an original proceeding before the Arizona Supreme Court, petitioners sought to enjoin the Attorney General from making the disclosure, arguing it would violate statutes regulating secrecy of tax information. Id. at 182, 412 P.2d at 473. ¶28 Although the court declined to issue the injunction and ordered the Attorney General to reevaluate the appropriateness of the disclosure of the information, the court nevertheless held it could grant injunc-tive relief. Id. at 186, 412 P.2d at 476. In so ruling, the court acknowledged the Attorney General was entrusted with a certain amount of discretionary power, and that generally a court should not enjoin a public officer’s exercise of discretionary power. Id. But, the court stated this principle did not apply when a public officer exercises that power in an arbitrary or unreasonable manner: An injunction [ ] is an appropriate remedy to determine whether rights have been or will be affected by the arbitrary or unreasonable action of an administrative officer or agent. If there is an abuse of discretionary power, the judiciary has the duty to restrain the same. Id. at 186, 412 P.2d at 476 (citation omitted). Thus, a court can enjoin a public officer’s arbitrary or unreasonable exercise of discretion. Id.; see also Rivera v. City of Douglas, 132 Ariz. 117, 119, 122, 644 P.2d 271, 273, 276 (App. 1982) (injunction is an appropriate remedy to determine whether rights have been or will be affected by arbitrary or unreasonable action of an administrative officer; but city manager did not act in that manner when he asked employees to submit to polygraph after exhausting other investigative tools). ¶ 29 In Zeigler v. Kirschner, 162 Ariz. 77, 781 P.2d 64 (App. 1989), this court recognized that neither A.R.S. § 12-1802(4) nor A.R.S. § 12-1802(6) bars a court from granting in-junctive relief against public officers who arbitrarily or unreasonably exercise their discretion. There, petitioners sued the director of the Arizona Health Care Cost Containment System (“AHCCCS”) in his official capacity and alleged AHCCCS administrators had adopted arbitrary and unreasonable requirements for verifying and documenting eligibility for medical care, and were implementing monitoring and auditing practices over eligibility determinations in violation of state statutes. Id. at 80-81, 84, 781 P.2d at 57-58, 61. This court held these allegations were sufficient to render A.R.S. § 12-1802(4) and (6) inapplicable and did not prohibit in-junctive relief “against public officials who exceed their statutory authority or arbitrarily or unreasonably exercise their discretion.” Id. at 84, 781 P.2d at 61. ¶ 30 To sum up: Arizona case law demonstrates A.R.S. § 12-1802(6) does not bar injunctive relief when public officers act “unlawfully” by either exceeding their authority or exercising discretionary authority arbitrarily or unreasonably. Thus, we reject Defendants’ argument that A.R.S. § 12-1802(6) prohibits a court from enjoining discretionary actions that fall within a public officer’s legal authority. ¶ 31 Here, Plaintiffs accused Defendants of acting “unlawfully” by arbitrarily and unreasonably operating the System. As discussed, see supra ¶¶ 4-6, Plaintiffs alleged Defendants used Plaintiffs’ properties as “ad hoc” overflow relief for Emerald Park when they channeled and diverted contaminated storm water into Emerald Park even though the storm water exceeded Emerald Park’s capacity, while knowing Emerald Park did not have effective emergency overflow relief. Plaintiffs further alleged that unless enjoined, Defendants “appear[ed] to intend to continue to concentrate and divert water into” Emerald Park, without providing for appropriate emergency overflow relief. Plaintiffs thus alleged facts to support a claim Defendants had and were intending to unlaw fully exercise their authority within the meaning of A.R.S. § 12-1802(6). Section 12-1802(6) did not bar Plaintiffs’ request for injunctive relief as a matter of law. III. Defendants’ Other Arguments ¶32 Defendants argue the superior court properly dismissed Plaintiffs’ complaint because the injunctive relief, if granted, would have violated the doctrine of separation of powers. For example, Defendants argue the requested injunctive relief would require the superior court to micromanage whether Defendants had complied with the injunction and “would thrust the trial court into the business of telling [Defendants] how to manage storm water” irrespective of other considerations, such as the impact on other neighborhoods and Defendants’ traditional executive functions. ¶ 33 This argument, however, ignores the procedural posture of this case and conflates access to the court with the remedy. This appeal arises out of a motion to dismiss and the sole issue at this juncture is whether Plaintiffs are entitled to request injunctive relief. See Dressler v. Morrison, 212 Ariz. 279, 281, ¶ 11, 130 P.3d 978, 980 (2006) (appellate court will “uphold dismissal only if the plaintiff would not be entitled to relief under any facts susceptible of proof in the statement of the claim”) (quotation and citation omitted). Whether the superior court should grant injunctive relief is a separate question, which must be addressed on a developed record in the first instance by the superior court, not this court. See IB Prop. Holdings, LLC v. Rancho Del Mar Apartments Ltd. P’ship, 228 Ariz. 61, 64, ¶ 6, 263 P.3d 69, 72 (App. 2011) (“Granting or denying a preliminary injunction is within the sound discretion of the trial court....”) (quotation and citation omitted), ¶ 34 Moreover, courts have long struggled with how to structure injunctive relief when a governmental entity has improperly or arbitrarily exercised statutory power—how to address this issue also presents a question the superior court should address first. Cf. Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328-30, 126 S.Ct. 961, 967-69, 163 L.Ed. 2d 812 (2006) (vacating injunction and remanding after district court adopted “blunt remedy” of permanently enjoining enforcement of parental notification statute without determining whether it could enjoin only unconstitutional applications of statute; in formulating injunctive remedy, courts should not nullify more of a legislature’s work than necessary, should exercise restraint in rewriting state laws to conform to constitutional requirements, and should not use their remedial powers to circumvent legislative intent); see also National Res. Def. Council, Inc. v. EPA, 966 F.2d 1292, 1300 (9th Cir. 1992) (injunctive relief may be inappropriate if it requires constant court supervision); Bresgal v. Brock, 843 F.2d 1163, 1171 (9th Cir. 1987) (modifying district court’s overbroad permanent injunction; although a court may enjoin government entities from certain conduct, a court “will not assume to control or guide the exercise of’ their authority) (quotation and citation omitted). ¶35 Finally, Defendants argue we should affirm the superior court’s dismissal of Plaintiffs’ complaint because Plaintiffs have an adequate remedy at law for the alleged taking of their property-just compensation. See A Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cty., 222 Ariz. 515, 525, ¶ 18, 217 P.3d 1220, 1230 (App. 2009) (Arizona law requires government to pay just compensation when it takes or damages private property). Defendants did not raise this argument in the superior court and, accordingly, Plaintiffs did not have an opportunity to address whether such a remedy would be adequate. Thus, we agree with Plaintiffs that Defendants failed to preserve this argument for our review. Sierra Tucson, Inc. v. Bergin, 239 Ariz. 507, 511, ¶ 12, 372 P.3d 1031, 1035 (App. 2016) (citation omitted). CONCLUSION ¶ 36 For the foregoing reasons, we reverse the superior court’s dismissal of Plaintiffs’ complaint and remand for further proceedings consistent with this opinion. . On review, we accept the complaint's well-pled factual allegations and indulge all reasonable inferences. Cullen v. Auto-Owners, Ins., Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008). . Although Arizona courts have used the term "jurisdiction” when addressing a court’s ability to issue an injunction in light of the prohibitions of A.R.S. § 12—1802, "subject matter jurisdiction refers to a court's statutory or constitutional power to hear and determine a particular type of case.” State v. Maldonado, 223 Ariz. 309, 311, ¶ 14, 223 P.3d 653, 655 (2010) (quotation and citations omitted). As Hislop demonstrates, a court has subject matter jurisdiction to consider whether A.R.S. § 12-1802 bars injunctive relief, even though it may conclude that A.R.S, § 12-1802 precludes it from granting injunctive relief. We use the term “jurisdiction” as discussed in our case law with this limitation in mind. See Taliaferro v. Taliaferro, 186 Ariz. 221, 223, 921 P.2d 21, 23 (1996) (noting history of imprecise use of term "jurisdiction," such as "authority to do a particular thing” or "power of the court to entertain an action of a particular subject matter”). . At oral argument and in their briefing on appeal, Defendants argued that because A.R.S. § 12-1802 only permits injunctive relief when a public officer’s acts exceed his authority, the Plaintiffs' only available remedy was an action for money damages. Defendants' argument is virtually identical to the dissent in Williams. See Williams, 108 Ariz. at 161, 494 P.2d at 33 (Holo-han, J., dissenting) (A.R.S. § 12-1802(4) and (6) “enacted for the purpose of forbidding courts of this state from restraining legitimate public interests even though at times these protected and public interests may clash. The remedy in the courts is for the so-called injured party to seek recovery by way of damages.”). . Defendants argue the complaint failed to allege conduct that could constitute a trespass because it did not allege an intentional act. Specifically, Defendants argue Plaintiffs' complaint did not "allege that the [Defendants] intended to flood Plaintiffs' properties, nor did it allege any facts demonstrating intent” because it had not alleged the "purpose of the [Defendants' conduct] was to flood Plaintiffs' properties.” Arizona law did not require Plaintiffs to allege Defendants’ purpose in diverting the storm water into Emerald Park was to flood Plaintiffs' properties, Under Arizona law, an actor is liable for trespass if the actor "intentionally [] enters land in the possession of the other, or causes a thing or third person to do so.” Taft v. Ball, Ball & Brosamer, Inc., 169 Ariz. 173, 176, 818 P.2d 158, 161 (App. 1991) (quoting Restatement (Second) of Torts § 158 (1965)). An intentional act occurs when an "actor desires to cause consequences of his act, or [ ] believes that the consequences are substantially certain to result from it.” Mein ex rel. Mein v. Cook, 219 Ariz. 96, 99, ¶ 16, 193 P.3d 790, 793 (App. 2008) (quoting Restatement (Second) of Torts § 8A (1965)), For the reasons discussed, see supra ¶¶ 4-6, 31, Plaintiffs alleged facts sufficient to constitute a trespass under Arizona law: Plaintiffs alleged Defendants used the System to collect and divert storm water into Emerald Park, following what Defendants admitted was a "severe” and "epic" storm even though Emerald Park lacked effective overflow relief. Plaintiffs further alleged the State had denied the City's request to pump water from Emerald Park back into the channel. These facts alleged the requisite intent for a trespass. See Mein, 219 Ariz. at 100, ¶ 17, 193 P.3d at 794 ("Intent is not [] limited to the consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.”) (quoting Restatement (Second) of Torts § 8A cmt. b (1965)). . Because we reverse the superior courts dismissal of Plaintiffs' complaint we do not need to address the other issues raised by the parties on appeal.

UDALL, Chief Justice. This is an appeal by plaintiffs, Joe R. Bassett and Mable Bassett, his wife, from a judgment entered against them based upon a directed verdict for the defendants, and from the order denying their motion for a new trial. The facts material to this appeal are as follows: Plaintiff Joe Bassett was an experienced cattleman, with many years experience at the time of this sale, and holding like grazing permits and preferences in his own name. The defendants (appellees) were a partnership consisting of E. E. Ryan, J. B. Ryan, and C. M. Ryan, d. b. a. Ryan Cattle Company. In addition to their livestock, defendants owned 80 acres of patented land and extensive improvements located on range lands in Gila County, Arizona, and were the holders of certain established terms preferences and annual permits to graze cattle on the Crook National Forest. In the late summer of 1947 the defendants orally agreed to sell their entire holdings, as one of them expressed it “lock, stock and barrel”, to the plaintiffs for $180,-000. On September 5, 1947, the sale was completed and a written agreement was drawn warranting the number of cattle grazing on the range included in the sale, specifying the method of counting the cattle, and making provision- for crediting the plaintiffs for any shortage in the warranted number. There was -however no warranty contained therein as to the grazing preference that the Forest Service might ultimately allow to plaintiffs. The defendants simultaneously executed and delivered to the plaintiffs a bill of sale for the cattle, a deed covering the patented land, and a waiver to the United States Forest Service of all their grazing preferences and permits. On January 3, 1948, the plaintiffs made application to the Forest Supervisor for a grazing preference covering 786 head of livestock which was the maximum or ceiling number theretofore held by the defendants. However for the year 1947 the defendants had only a year long permit for 340 head of cattle, a five month permit for 157 head, and a compulsory non-use permit for 223 head. On February 24, 1948, the Forest Service notified the defendants that they had grazed more livestock than they had paid grazing fees on and more than their permits allowed for the years 1946 and 1947, and assessed a fine of $1,153.16 against them for the trespass. They also gave the defendants an opportunity to show cause why their grazing preference should not be reduced by 189 head. The defendants paid the fine, but contested the reduction because it would be unfair to the plaintiffs who were entirely innocent in the matter. Principally because of the trespass the Forest Service issued to the plaintiffs a term preference for only 621 head, which was a net reduction of 165 head. It might be well to point out the distinction between a grazing preference and a grazing permit. This is well stated in N.F.-C4-3, Ghapter C, Volume III, National Forest Protection and Management, Forest Service Manual, as follows: “A preference conveys no legal right to the use of national-forest range. It simply entitles the holder to special consideration over other applicants who have not established preferences. A preference does not entitle the holder to continue use of any certain part of the forest. The terms ‘preference’ and ‘permit’ are not synonymous. A permit authorizes the grazing of livestock under specific conditions and ex pires on a certain date, while preference continues until canceled or revoked:” These permits and/or preferences cannot be transferred or assigned directly to the purchaser but can only be waived to the Forest Service, and within its sole discretion may be reissued. In Bell v. Apache Maid Cattle Co., 9 Cir., 94 F.2d 847, 849, the law applicable is stated: “There is no law which gives an individual or corporation the right to graze stock upon the National Forest lands except under the regulations promulgated by the Department of Agriculture. * * * “Appellant knew or was required to know that under the regulations appellees could not convey grazing rights to 'him. All they could do was to relinquish. Appellant, after entering into the contract, should then have made his application to the Forest Service which alone had authority to make any allotment.” The gravamen of plaintiffs’ complaint was breach of contract and damages in the sum of $16,500 were sought, the theory being that a grazing preference was then worth $100 per head to the cattleman. The trial court granted the defendants’ motion for a directed verdict at the close of plaintiffs’ case. There were four assignments of error, the last being: “The lower court erred in refusing plaintiffs leave to amend their complaint by inserting the words ‘permit and/or. preference’ after the words ‘grazing rights’ throughout the complaint.” Rule X, subd. 1 of this court requires that: “All assignments of error must distinctly specify each ground of error .relied upon and the particular ruling complained of * * * or it will be deemed to be waived.” Plaintiffs’ above assignment of error fails to comply with this requirement in that it states no grounds why the trial court’s ruling was in error. It is therefore unnecessary for us to discuss this assignment further as it must be deemed to have, been waived. Tidwell v. Riggs, 70 Ariz. 417, 222 P.2d 795; Thornburg v. Frye, 44 Ariz. 282, 36 P.2d 548. In any event the plaintiffs were in nowise prejudiced by this adverse ruling. Plaintiffs’ other assignments of error have to do with the trial court’s direction, of verdict in favor of the defendants. The grounds specified in support of these assignments are not altogether clear. The trial court in granting defendants’ motion for a directed verdict stated that the plaintiffs had failed to prove their case and that if the jury rendered a verdict for the plaintiffs it would be compelled to set it aside. The general rule governing directed verdicts was recently laid down by this court, in Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201, 204, as follows: “A motion of this kind is regarded as admitting the truth of whatever competent evidence the opposing party had introduced including the reasonable inferences to be drawn therefrom, and it is only where the evidence is insufficient to support a verdict, or where it is so weak that upon a motion for a new trial after verdict the court would feel constrained to set it aside, that the court is justified in directing a verdict. (Citing cases.) “ * * * where, as here the trial court directs the jury to return a verdict for the defendants. The conflicting evidence then must be viewed in a light most favorable to plaintiff.” (Citing cases.) Plaintiffs allege in their complaint that the defendants represented and warranted to the plaintiff that the grazing rights and forest permits were in good standing and would be transferred to them. We have carefully reviewed the record including the transcript of evidence and nowhere do we find competent evidence to support this allegation. There is no evidence from which any specific representation, warranty or agreement concerning the preference can be drawn, except that the defendants held a preference for 786 head and would waive it to the Forest Service. In fact plaintiffs practically conceded this was true by moving to strike these allegations from the complaint at the close of all the evidence. For some inexplicable reason this part of their motion was denied. The only evidence introduced at the trial concerning the preference and permits, other than as to the number of head defendants were allowed, was at a meeting between the plaintiff and one of the defendants, J. B. Ryan. Plaintiff testified as to what was said concerning the permit or preference, “ * * * I asked him about the permit, did he think the Forest Service might take a ten per cent transfer cut, and he said he didn’t know, they might. It was more or less up to the Forest Service.” The plaintiffs knew it was up to the Forest Service in its discretion to reissue the preference to him, and that the defendants could only waive the preference to the Forest Service. Plaintiffs also contend that the trial court in directing a verdict for the defendants was in effect holding that a contract involving the sale or transfer of grazing rights is illegal and that suoh rights have no definite values in the cattle business. These contentions' are unwarranted for the experienced trial court recognized, and we hold that while the rights obtained by a permittee to graze stock upon the National Forest do not fall within the conventional category of vested rights in property, yet while they exist they are something of real value to their possessors. They had their origin in an enactment of Congress. Cf., Red Canyon Sheep Co. v. Ickes, 69 App.D.C. 27, 98 F.2d 308, and our recent case of Stevens v. Stevens, 70 Ariz. 302, 219 P.2d 1045. Furthermore we hold that these are valuable permits or preferences and legitimate objects of con tract, even though they cannot be directly conveyed to the purchaser but can only be relinquished to the government. It would be unreasonable for us upon this record to say that the trial court abused its discretion in granting the defendants’ motion for a directed verdict. We agree with the learned trial judge that the plaintiffs failed to prove their case, and a verdict if rendered for the plaintiffs would have to be set aside. Judgment affirmed. STANFORD, PHELPS, DE CONCINI and LA PRADE, JJ., concur.

UDALL, Chief Justicé. Petitioner, G. O. Davidson, while in the employ of the Arizona Sand and Rock Company as a truck driver, was injured by an accident arising out of and in the course of his employment on December 14, 1943, and as a result thereof, sustained a permanent partial disability. The Industrial Commission of Arizona was the insurance carrier. The commission assumed jurisdiction of the case and petitioner, over a period of years, was awarded compensation for total or partial temporary disability aggregating $15,674.73, in addition to which he was allowed accident benefits and vocational rehabilitation training. The principal injury suffered by the 41-year-old petitioner was to his lower back. This is a nonscheduled disability, falling under the “odd lot” provisions of Sec. 56-957, subsections (c) and (d), A.C.A.1939. Upon recommendation of one of the doctors a spinal fusion across the lumbosacral joint was performed on April 24, 1946, but it was not until March 8, 1948 that petitioner’s physical condition became stationary. To allow time for determining his earning capacity the commission deferred making a permanent award until March 15, 1950, when it found that as a result of his permanent partial disability petitioner had sustained a 25% loss of earning capacity thus entitling him to compensation in the sum of $43.10 monthly. Petition - for rehearing was timely filed and granted, and on August 4, 1950, the previous award was reaffirmed. By certiorari the matter is now before us for review. The principal assignment of error is that the evidence of record does not substantiate the commission’s finding that petitioner sustained only a 25% loss of earning capacity.. It is petitioner’s further contention that the only reasonable inference deducible from all of the evidence is that he sustained a total loss of earning power and was therefore entitled to an award of 55% of the average monthly wage earned prior to the accident. It is our view that no good purpose would be served by making a detailed analysis of the various steps taken by the doctors and the commission to restore the petitioner to good health and to rehabilitate him. Suffice it to say that from the voluminous record before us, covering a period of six or seven years, it clearly appears that the best medical care was furnished him (in all, he was treated or examined by some eighteen eminent doctors). The Medical Advisory Board, on March 8, 1948, unanimously stated: “We are of the opinion that radiographically the lumbosacral fusion is solid. We therefore would not recommend further examination or treatments, and believe that the patient can now be discharged and that he can resume some type of useful work. ' “We are of the opinion that as a result of the injuries in question, he has a 20% general physical disability.” At his subsequent appearance, on July 11, 1949, before the Medical Advisory Board of six members (three of whom Drs.. Charles W. Suit, Jr., George A. Williamson, and R. E. Hastings were on the previous Board) the findings were identical to-those previously made, with this additional comment: “We recognize the fact that the patient complains a great deal more and of additional localities in his body, but careful scrutiny fails to reveal that these are-other than a hysterical spread of symptoms.’ (Emphasis supplied.) At a formal hearing before the referee,, on November 8, 1949, three doctors appeared. Dr. Suit testified as to the subjective complaints that petitioner “complained more and exaggerated his complaints more”, but that the objective symptoms did not bear him out. He further stated: “I think the man’s attitude is entirely because of his inability to work. In. my opinion he has definitely a better back than he had prior to his injury as stated. He is a spondylolisthesis which is an unstable, weak back. He has ultimately had. a spinal fusion and has a sound, stable back. Therefore, he is much better off. But as.a result of his protracted illness and the attitude of not desiring to again get on his own feet and to work and to he independent of symptoms and medical treatment is his inability to work.” Dr. Williamson agreed with the views expressed by Dr. Suit and it was further stated by them that further treatment was not indicated as it “would only increase his symptoms and protect his illness”. Dr. R. F. Palmer, the petitioner’s physician who had treated him over the years, was in disagreement with the conclusions reached by all of the other doctors. But at the best this merely creates a conflict in the medical evidence which it is our duty to resolve in support of the award. Ison v. Western Vegetable Distributors, 48 Ariz. 104, 59 P.2d 649; Hewett v. Industrial Commission, 72 Ariz. 203, 232 P.2d 850. Also where there is any competent evidence to sustain the findings of the commission, those findings are binding and conclusive upon this court. Hoffman v. Brophy, 61 Ariz. 307, 149 P.2d 160. While it is true that petitioner’s earnings since the date of injury are practically nil, the commission attributes his inability to obtain a gainful occupation to his defeatist and apathetic attitude. Apparently it is their view that in addition to the physical disability which admittedly affects his earning capacity, there is a disabling state of mind, not amounting to a neurosis, which has prevented him from returning to some type of work. The record amply justifies this inference. It appears that the commission in making its final award in this matter gave due consideration to all of the factors enumerated in Sec. 56-957, subsection (d), supra, as these were interpreted and applied in the following cases, viz.: Hoffman v. Brophy, supra; Matlock v. Industrial Commission, 70 Ariz. 25, 215 P.2d 612; and Eagle Indemnity Co. v. Hadley, 70 Ariz. 179, 218 P.2d 488. There is no basis in fact for petitioner’s bald assertion that the commission arbitrarily added 5% to the 20% functional physical disability found by the Medical Advisory Board, in arriving at the 25% loss of earnings fixed in the instant case. The mere showing that a claimant has not returned to work is not proof of the fact that he cannot work because of a physical disability arising out of an industrial accident. Award affirmed. STANFORD, PHELPS, DE CONCINI and LA PRADE, JJ.; concur.

DE CONCINI, Justice. Petitioner-applicant, John W. Wofford, while employed by the Veta Mines, Inc., which was insured in the state compensation fund, sustained an injury by an accident arising out of and in the course of his employment. The accident occurred while applicant was changing bits; by striking a-bit with a hammer, a piece of steel flew from the bit striking him in the left eye. Within the prescribed period applicant filed a claim for compensation with the respondent insurance carrier, the Industrial Commission of Arizona. After considerable treatment applicant lost all sight in his .left eye. Respondent awarded him the maximum compensation allowed under the statute for the loss of an eye without enucleation. After the award was paid, applicant filed a motion for a rehearing before the commission to show that the injury had resulted in his permanent disfigurement; in- support of which a medical report was filed by his attending physician. The report showed that a slight secondary membrane had formed over the pupillary area. The commission denied the rehearing and affirmed the previous findings and award on the ground that the applicant had been compensated in full as provided by the statute. Applicant appeals from the final award denying him further compensation. Section 56-957, A.C.A.1939, controls the case at bar; subparagraph (b), subsection 17, provides: “Disability shall be deemed permanent partial disability if caused by any of the following specified injuries, and compensation of fifty-five (55) per cent of the average monthly wage of the injured employee, in addition to the compensation for temporary total disability, shall be paid for the period given in the following schedule: * * * * “17. For the permanent and complete loss of sight in one eye without enucleation, twenty-five (25) months.” Petitioner contends that subsection 22 of this statute also applies, under the facts in this case. That subsection provides: “For permanent disfigurement about the head or face, which shall include injury to or loss of teeth, the commission may allow such sum for compensation thereof as it may deem just, in accordance with the proof submitted, for a period not to exceed eighteen (18) months.” The sole question to be considered in this case is whether an injured workman who has been compensated in full for loss of an eye without enucleation, a scheduled loss, may be additionally compensated for disfigurement to that eye. We hold that he cannot. This court has on two previous occasions held that a workman who has been compensated for permanent partial disability was not entitled to additional compensation for “partial disability for work.” Rose v. Industrial Commission, 52 Ariz. 466, 83 P.2d 786, 788; Smith v. Industrial Commission, 69 Ariz. 399, 214 P.2d 797. The supreme court of Oklahoma has had occasion to consider this same question several times. In Seneca Coal Co. v. Carter, 85 Okl. 220, 205 P. 495, it was held that an injured workman could be compensated for loss of an eye as prescribed by statute and in addition be compensated for disfigurement of the "head, face or hand" if such disfigurement was in addition to the loss of the eye and not connected with the injury to the eye itself as constituting disfigurement. The employer objecting to the award contended that the following provision of the Oklahoma Statute, section 6, art. 2, ch. 246 Session Laws 1915, as amended by section 9, ch. 14 Session Laws 1919, 85 O.S. 1941 § 22, precluded recovery for disfigurement: "In case of an injury resulting in the loss of hearing or in serious and permanent disfigurement of the head, face or hand, compensation shall be payable in an amount to be determined by the Commission, but not in excess of three thousand dollars. Provided, that compensation for loss of hearing or permanent disfigurement shall not be in addition to the other compensation provided for in this section, but shall be taken into consideration in fixing the compensation otherwise provided." (Emphasis supplied.) The court said that it would be unreasonáble to hold under the above statute: “ * * that the Commission is without jurisdiction to compensate an injured employee for a permanent disfigurement of the head, face„ or hands where the same exist independent of some compensable specific injury. * * ” The court further said that the portion of the statute underlined above “ * * * was to qualify the preceding part of the section of the statute vesting the Industrial Commission with jurisdiction to compensate a permanent disfigurement in any sum not exceeding $3,000 by authorizing the Commission to consider any amount which the Commission may have awarded to the injured employee for a specific injury where such specific injury might appear as a part of the disfigurement sought to be compensated.” In Milling Machinery Jones-Hettelsater Const. Co. v. Thomas, 174 Okl. 483, 50 P.2d 395, 398, the court in construing the same statute denied compensation for disfigurement for the loss of an eye where there was no additional disfigurement except by reason of the loss of the eye itself. The court had the matter before it three times, twice on rehearing, and reaffirmed Seneca Coal Co. v. Carter, supra, by saying: “ ‘Where an injured employee has been compensated for a specific injury, such injured employee is not entitled to compensation again for such injury as constituting a part of a permanent disfigurement.’ * * * * * * “* * * If in this case the same accident had caused disfigurement of any part of claimant’s head, hands, or face other than that caused by the loss of the eye, compensation could be awarded therefor. But no allowance could be made for that part of the disfigurement caused by or resulting from the loss of the eye.” In the case at bar the facts are similar to those in the Milling Machinery JonesHettelsater Const. Co. v.' Thomas case. The petitioner here has suffered no disfigurement to his head or face except that occasioned by the loss of his eye, for which he has been compensated under subsection 17, subparagraph (b), of 56-957, A.C.A.1939, supra. Petitioner is not entitled to additional compensation under subsection 22, subparagraph (b) of 56-957, A.C.A.1939, because that section contemplates separate and additional disfigurement besides that caused by the loss of the eye itself. Award affirmed. UDALL, C. J., and STANFORD, PHELPS and LA PRADE, JJ., concur.

STANFORD, Justice. Appellee, hereinafter styled plaintiff, brought his action in the trial court against appellants, on this appeal called defendants, for personal injuries allegedly sustained as a result of defendants’ negligence. Following .the trial by jury, a verdict was rendered for the .plaintiff in the sum of-$15,000. From the judgment entered thereon and from the denial of defendants’ motion to set aside the verdict and motion for new trial, this appeal is taken. Plaintiff was a passenger in a Ford sedan automobile driven by his son, Robert Johnson, in a westerly direction along East Washington Street in Phoenix. Robert Johnson brought the automobile to a complete stop behind another car which had stopped to give the right of way to, and permit the loading of a school bus. During the time said Ford sedan was stopped, a G.M.C. truck-tractor, belonging to defendant Transfer Co. and driven by defendant Miller, approached from the rear and to avoid colliding with plaintiff’s sedan, swerved in such a manner that it cause'd" much of its load of baled cotton to strike the sedan with great force and violence causing this plaintiff to be thrown from his seat, striking his head and parts of his body against the interior of the car and seriously injuring him. Plaintiff claimed the truck was travelling at a speed of 45 miles per hour, that that was an excessive speed for that district and that the truck’s, brakes were defective. Defendants’ first assignment of error is based on the following remarks by the trial court in the presence of the jury: “Well, after all, a court of justice is for the purpose of ascertaining the truth. Your objection will be overruled. Go ahead.” * * * * * jji “Well, I think that you are extending your cross-examination far beyond what it should be. I will let you go ahead for a while. Fifteen minutes have gone by since you started on this subject.” * * * * * * “ * * * After all we have to finish this trial sometime.” Defendants claim that said remarks were prejudicial to defendants and were a comment on the evidence. While there have been many cases cited by counsel herein as examples of' both proper and improper remarks made by the court during the progress of a trial, we think it obvious that each of such instances can only be judged and evaluated on a basis of the particular circumstances of each case. Under certain circumstances it might be improper for a trial judge to make the remarks quoted above, during the progress of a trial; however, we cannot say as a matter of law that such remarks are prima facie prejudicial. We are of the opinion that the remarks quoted, when read into the context of the entire transcript of the proceedings, much too lengthy to be here set forth, furnish no grounds for objection on the part of the defendants. The trial judge has not only the right and the power but the solemn duty to see that the matters presented to the jury are not unduly confused with circumstances having no bearing on .the issues and also to see that the trial is conducted in an orderly manner. In our opinion the remarks made by the court were made only in pursuance of these ends; they were neither improper nor prejudicial and constitute no valid objection on the part of defendants. Defendants’ third assignment of error is directed at remarks of plaintiff’s counsel in the argument to the jury. We are of the opinion that the said remarks of counsel were not objectionable as contended by defendants. The record shows however that no objection was made to any of these remarks before the jury retired and there was no request on the part of defendants’ counsel that the court admonish the jury regarding such remarks. From the City of Prescott v. Sumid, 30 Ariz. 347, 247 P. 122, 125, we quote: “That remarks of this nature were highly improper and beyond the legitimate limits of argument cannot be questioned, and appellate courts have frequently reversed cases for just such misconduct. It is nevertheless true that the usual practice requires objection to be made at the time, and that the court be requested to admonish the jury to disregard the improper conduct, or an appellate tribunal will not consider it. Crumpton v. United States, 138 U.S. 361, 11 S.Ct. 355, 34 L.Ed. 958 (See, also, Rose's U.S. Notes); Rush v. French, 1 Ariz. 99, 25 P. 816; 3 C.J. 862-864." While we recognize the fact that this case was decided prior to our adoption of sec. 21-2003, A.C.A. 1939, which reads: “Interruptions of counsel in argument will not be permitted, except for the purpose of raising some question of law”, we reiterate there was no objection made until the jury had retired and counsel were in the judge’s chambers, at which time counsel for defendants moved for mistrial, which motion was denied. There was certainly opportunity for objection and request that the court admonish the jury at the close of plaintiff’s argument, both of which were omitted. We do not need to consider the question further. Defendants by their ninth assignment of error contend that the trial court erred in denying their motion for directed verdict, which was based on an alleged lack of competent evidence showing the acts of negligence on the part of defendants as averred in the complaint. Complaint alleged that the defendant Miller “negligently and recklessly drove the truck along the said highway, at a high, unreasonable, excessive and dangerous rate of speed under the circumstances, having regard to the traffic and the use of the highway, at the rate of approximately 45 miles per hour,” and also that the defendant City Transfer Co. “negligently failed to keep its truck equipped with safe brakes * * *.” While there was little or no evidence introduced by plaintiff tending to show that the truck driven by defendant Miller was equipped with defective brakes, there were a number of witnesses who testified in behalf of plaintiff concerning the accident, the speed at which the truck was traveling immediately prior 'thereto and also the general surrounding circumstances. This testimony largely from disinterested witnesses, was of such nature that negligence on the part of defendant Miller might well have been inferred therefrom. We are of the opinion that the issue was properly submitted to the jury and that the trial court was correct in its denial of defendants’ motion for a directed verdict. In their tenth assignment of error, defendants contend that the trial court erred in overruling their objections to medical testimony of Dr. John Foster and Dr. Frank Honsik, called by plaintiff as part of the rebuttal, on the ground that such testimony comprised a part of plaintiff’s case in chief and thus was not proper rebuttal evidence. Plaintiff’s case in chief included the medical testimony of Dr. Cohen who testified concerning injuries received by plaintiff and to his physical condition. At the close of plaintiff’s case, defendants called upon Dr. Flinn, whose testimony tended to contradict that of Dr. Cohen’s. At the close of defendants’ case, plaintiff produced two more medical witnesses, Drs. Foster and Honsik, who testified as to injuries and physical condition of plaintiff as evidenced by examination and X-rays, testimony of the same general character as the testimony of Drs. Cohen and Flinn. Without question, the 48 pages of testimony of Drs. Foster and Honsik largely contradicted Dr. Flinn’s testimony and was in accord with much of Dr. Cohen’s testimony. Defendants contend that the testimony of plaintiff’s last two witnesses should have, been introduced as part of plaintiff’s case in chief and that the trial court erred in allowing its introduction in rebuttal. Of course the law is well settled that the mere fact that testimony might have been introduced as a part of the case in chief will not preclude its being made a part of the rebuttal. From 53 Am.Jur., Trial, Section 121, we quote: “ * * * Where, however, evidence is real rebuttal evidence, the fact that it could have been offered in chief does not preclude its admission in' rebuttal. * ‡ The testimony of Drs. Cohen, Flinn, Honsik and Foster is much too lengthy to be here set forth, so we shall discuss the general nature of the testimony, in determining the correctness of the lower court’s rulings. Dr. Cohen testified that he had treated plaintiff from the date of the accident and Jhis conclusions covering the condition of -plaintiff were based on observation and X-rays,. taken at St. Monica’s Hospital, -which he had seen and examined personally. Dr. Flinn then testified as to condition 'of plaintiff, which opinion was drawn from examination, X-rays taken at the Pathological Laboratory in Phoenix, and from reading reports of the X-rays taken at St. Monica’s Hospital which appeared in the hospital record. He stated that he did not see' these latter X-rays. Dr. Foster then appeared for plaintiff and testified that he had taken the X-rays which were taken at’St. Monica’s Hospital, and that the reports appearing in the hospital records were prepared by him. He subsequently testified giving his opinion of plaintiff’s physical condition, which opinion was formed as a result of the X-rays taken by him. Dr. Honsik then testified for plaintiff concerning plaintiff’s physical condition, his opinion being formed from his observation of X-rays taken of plaintiff, some of which were- taken at the Pathological Laboratory for Dr. Flinn, and also from personal examination. In view of the testimony of defendants’ witness, Dr. Flinn, containing opinions which were based in part on (1) X-ray reports submitted by Dr. Foster at St. Monica’s Hospital, and (2) X-rays taken at the Pathological Laboratory, and in light of the fact that Dr. Foster testified concerning the X-rays reported on and Dr. Honsik’s testimony was based in part on the X-rays taken at the Pathological Laboratory, we are of the opinion that the trial court did not err in allowing Drs. Foster and Honsik to testify. It is evident that their testimony contained some matter which was not wholly rebuttal evidence and should not have been admitted, but on close examination of that testimony we feel that it did not affect the verdict as rendered by the jury, and therefore hold that the erroneous admission of the testimony did not constitute reversible error on the part of the trial court. From S C.J.S., Appeal and Error, § 1724(c) (1) we quote: “Error in the admission of evidence may not constitute ground for reversal where the evidence which has been admitted is * * * merely corroborative * * * or agrees with the only competent evidence on the particular point. * * * ” And from subsection (2) of the same section: “A judgment will not be reversed because of the erroneous admission of evidence, where it did not affect the result or could not have done so. Moreover error in the admission of evidence is not a ground for reversal where such admission did not op erate so as to prejudice the rights of the complaining party, or where the effect of admitting the evidence in question was only slightly prejudicial, * * Defendants, through their assignments 12, 13, and 14 contend that the lower court erred in failing to instruct the jury that the negligence, if any there was on the part of plaintiff’s son, who was driving the car in which plaintiff was riding, was imputed to plaintiff, who would be thereby barred from recovery. This contention is based on an allegation that plaintiff and his son were engaged in a “joint venture” in that they were both enroute to a certain packing plant for the purpose of soliciting employment. We cannot find one scintilla of evidence which would support an allegation of negligence on the part of plaintiff’s son and therefore hold that the lower court committed no error in refusing to instruct the jury regarding such negligence. Defendants, by their 15th assignment of error, contend that the court erred in refusing defendants a new trial on the grounds that the damages awarded were excessive. This contention however is urged on the basis that the medical evidence of plaintiff was erroneously admitted and that the jury thereupon acted under the influence of great passion and prejudice. As pointed out, the witnesses appearing for plaintiff on rebuttal were proper witnesses to testify in rebutting new material contained in the defense, and the tes7 timony which was erroneously admitted, though improper, was not of such a nature as to constitute reversible error. Accordingly we are of the opinion that the plaintiff presented ample evidence of damage and injury in support of the verdict of $15,000 and we hold that the trial court committed no error in refusing to grant defendants a new trial. While there were additional assignments made by defendants in furthering their argument, these were examined by the court and we find no merit in them. We deem it neither necessary nor desirable to lengthen this opinion with further discussion. For the foregoing reasons we hold that the court committed no prejudicial error in the trial of this case and we hereby direct that the judgment thereof be affirmed. UDALL, C. J., and PHELPS, DE CONCINI and LA PRADE, JJ., concur.

OPINION THOMPSON, Judge: ¶ 1 This special action arises out of the superior court’s refusal to consider victims’ impact statements proffered by the state during a bond release hearing. The court ruled that, at a hearing to determine whether a defendant was bondable, it would not consider the impact statements without giving the defense an opportunity to cross-examine the victims at the hearing. The state petitioned this court. For the following reasons, we accept jurisdiction and grant relief. FACTUAL AND PROCEDURAL HISTORY ¶ 2 In January 2016, Real Party in Interest, Phillip Ray Sisco (Sisco), was charged by indictment with three counts of sexual assault, class 2 felonies; one count of child molestation, a class 2 felony and dangerous crime against children; seven counts of sexual conduct with a minor, class 2 felonies and dangerous crimes against children; four counts of sexual abuse, class 3 felonies and dangerous crimes against children; one count of sexual abuse, a class 6 felony as well as various misdemeanors for acts in 1987-89, 1998 and 2001-2004 involving two victims. Sisco originally was held without bond. ¶ 3 In June 2016, the Court of Appeals in Simpson v. Miller, 240 Ariz. 208, 209, ¶¶ 2-3, 377 P.3d 1003, 1004 (App. 2016), vacated by 241 Ariz. 341, 387 P.3d 1270 (2017) (Simpson II), decided that persons who had been held without bond pursuant to Arizona Revised Statutes (A.R.S.) section 13-3961(A)(3) (2016) (where “the proof is evident or the presumption great that the person is guilty of .,. [s'jexual conduct with a minor who is under fifteen years of age”) were entitled to a further hearing under A.R.S. § 13-3961(D). Under Miller, to hold a defendant without bond a trial court would have to find (1) the proof evident or presumption great that the defendant is guilty of sexual conduct with a minor under the age of 15, (2) clear and convincing evidence that he poses a substantial danger to the victim(s) or the community and (3) no condition or combination of conditions of release could be imposed that would reasonably assure the safety of the victim or the community. Id. at 213, ¶ 15, 377 P.3d at 1008. If these findings are not made, meaning the defendant is bondable, the trial court would then need to determine release conditions. Id. at 215, ¶ 22, 377 P.3d at 1010. ¶ 4 In July 2016, Sisco filed a motion for bond hearing pursuant to the Court of Appeals’s decision in Miller. During the subse quent bond release hearing, the state informed the trial court that the victims wanted to present impact statements through a representative. The state clarified that it was not offering the victims’ statements to meet its burden of proof for the first two requirements mentioned above. Instead, the state wanted the court to consider the victims’ statements as part of its determination as to the third requirement: “whether there are any reasonable ... release conditions that would protect the victim or the community” within the context of the bond release hearing. The trial court responded that it would consider the victims’ views when determining release conditions, but would not consider the statements in the context of whether Sisco could be held without bond unless Sisco had the opportunity to cross-examine the victims. Without considering the victims’ statements, the court found Sisco bondable. The state subsequently filed a petition for special action. ¶ 5 After the state filed its petition in this court, the Arizona Supreme Court took review of Miller and issued its decision in Simpson II. Our supreme court agreed with relevant parts of the Court of Appeals decision (i.e., unless charged with a crime that inherently predicts future dangerousness, a defendant is entitled to an additional bail hearing at which the trial court must make a separate finding of dangerousness before denying bail). Simpson II, 241 Ariz. at 348-49, ¶¶ 24-30, 387 P.3d at 1277-78. As additionally relevant here, the Court stated that bail hearings “require a full blown adversarial hearing.” Id. at 346, ¶ 15, 387 P.3d at 1275. DISCUSSION ¶ 6 Special action jurisdiction is appropriate for issues involving the interpretation of the Victims’ Bill of Rights and the Victims’ Rights Implementation Act as pure issues of law, issues of first impression, and of public significance, likely to recur, and not susceptible to review on appeal. See Lincoln v. Holt, 215 Ariz. 21, 23, ¶ 3, 156 P.3d 438, 440 (App. 2007); State ex rel. Thomas v. Klein, 214 Ariz. 205, 207, ¶ 4, 150 P.3d 778, 780 (App. 2007); State ex rel. Romley v. Superior Court (Cunningham), 184 Ariz. 409, 410, 909 P.2d 476, 477 (App. 1995). Special action jurisdiction is particularly appropriate in this case because the pretrial rights of the victims will otherwise be lost. State ex rel. Romley v. Dairman, 208 Ariz. 484, 486, ¶ 2, 95 P.3d 548, 550 (App. 2004). There is no equally plain, speedy and adequate remedy by appeal. See State ex rel Thomas v. Contes, 216 Ariz. 525, 527, ¶ 5, 169 P.3d 115, 117 (App, 2007). Therefore, we accept special action jurisdiction in this matter. ¶7 In reviewing the trial court’s order in the context of this special action, before granting relief we must find the trial court abused its discretion, or exceeded its jurisdiction or legal authority. Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 253-54, ¶ 10, 63 P.3d 282, 284-85 (2003). An abuse of discretion finding is appropriate when the record fails to provide substantial support for the trial court’s decision. State v. Cowles, 207 Ariz. 8, 9, ¶ 3, 82 P.3d 369, 370 (App. 2004). This court reviews questions of statutory interpretation and constitutional law de novo. Holt, 215 Ariz. at 23, ¶ 4, 156 P.3d at 440. We conclude the trial court violated the Arizona Constitution and A.R.S. § 13-4422 (2010) when determining Sisco was bondable without considering the victims’ impact statements at the bond hearing. ¶ 8 That determinations as to eligibility for bail “require a full blown adversarial hearing” does not resolve the question before us, because victims as witnesses have constitutional protections not available to others. Simpson v. Owens (Simpson I), which explicates the quoted proposition by stating “[t]he parties must have the right to examine/cross-examine the witnesses and to review in advance those witnesses’ prior statements that are written[,]” does not address victims as witnesses in a bond release hearing. 207 Ariz. 261, 275-76, ¶ 44, 85 P.3d 478, 492-93 (App. 2004). ¶ 9 In Arizona, victims of crimes have the right to be heard at any proceeding involving a post-arrest release determination, such as Sisco’s Simpson II hearing, pursuant to the Arizona Constitution’s Article II, § 2.1 (A) (4) of the Victims’ Bill of Rights and A.R.S. § 13-4422. In exercising that right, A.R.S. § 13-4426.01 (2010) pronounces that victims are not subject to cross-examination. Nothing in Simpson II changes this. ¶ 10 Here, the court’s ruling—refusing to consider the victims’ statements in its determination of whether Sisco was bonda-ble, unless the victims were subjected to cross-examination—undermines Arizona’s constitutional and statutory guarantees giving victims the right to be heard before, not after the decision to release on bond has been made, without being forced to testify. See e.g., Mendaz v. Robertson, 202 Ariz. 128, 130, ¶ 8, 42 P.3d 14, 16 (App. 2002) (rejecting a defendant’s “claim that a victim whose rights are protected by the Victims’ Bill of Rights and related statutes and procedural rules may be required to testify at a release hearing”). A victim’s “right to be heard” is meaningless if it is not tantamount to a right to have the victim’s impact statement (including his/her safety concerns) be seriously considered and addressed before the determination of whether a defendant is bondable. ¶ 11 Furthermore, a requirement that a defendant be permitted to cross-examine victims at a Simpson II bond hearing would import into such a hearing the procedural and evidentiary strictures typical of jury trials. Our precedent indicates that the use of hearsay is authorized at hearings in determining whether an individual is bondable. See Simpson I, 207 Ariz. at 276, ¶ 48, 86 P.3d at 494 (noting that in that kind of bond hearing, the record of grand-jury proceedings—which typically includes hearsay testimony and evidence, and, which would ordinarily be barred in a jury trial—was permissible). Accordingly, victims’ statements, despite being hearsay, are permitted and must be considered in a Simpson II hearing. ¶ 12 To uphold the protections this state has bestowed on crime victims, we direct the superior court to hold a new hearing wherein it considers the victims’ impact statements in undertaking the determination as to whether the state has proven Sisco is not bondable, without subjecting the victims to compulsory cross-examination. CONCLUSION ¶ 13 For the foregoing reasons, we accept special action jurisdiction and grant relief to the state by vacating the results of the subject bond release hearing at which the victims’ rights were impinged. . Section 13-4422 states that "[a] victim has the right to be heard at any proceeding in which the court considers the post-arrest release of the person accused of committing a criminal offense against the victim or the conditions of that release.” . The section states: In any proceeding in which the victim has the right to be heard pursuant to article II, § 2.1, Constitution of Arizona, or this chapter, the victim's right to be heard is exercised not as a witness, the victim's statement is not subject to disclosure to the state or the defendant or submission to the court and the victim is not subject to cross-examination. The state and the defense shall be afforded the opportunity to explain, support or deny the victim's statement. (Emphasis added.)

OPINION ESPINOSA, Judge: ¶ 1 Lisa Friedman appeals the trial court’s decision to grant visitation rights to the paternal grandparents of her two children. She contends the court failed to accord sufficient weight to the presumption that her decision to deny visitation was in the children’s best interests, effectively shifting the burden of proof to require her to prove visitation was not in them best interests. For the reasons that follow, we affirm. Factual and Procedural Background ¶ 2 We view the record in the light most favorable to upholding the trial court’s decision. Johnson v. Johnson, 131 Ariz. 38, 44, 638 P.2d 706, 711 (1981). Lisa Friedman and David Roels Jr. married in 2001 and have two minor children: M., born in 2003, and R., bom in 2006. The couple separated informally in March 2010, following an incident in which Roels “went into a rage” and was admitted to a psychiatric facility with suicidal ideation. Friedman petitioned for legal separation in September 2010, and for dissolution of the marriage in May 2011. She and Roels signed a consent decree of dissolution in July 2011. ¶3 Roels has had supervised parenting time since the separation. He had no legal decision making authority over the children until August 2016, when he and Friedman agreed that while Friedman would retain “final decision making authority,” she would consult with Roels on non-emergency matters. The children received counseling beginning in June 2010 and participated in several family therapy sessions with Roels in 2012, 2013, and 2016. He had been abusive at times during the marriage, including yelling and losing his temper, and “kicking [M.] once” and “holding him and grabbing him once.” ¶4 In April 2014, paternal grandparents David Roels Sr. and Claudia Roels (Grandparents) filed a petition pursuant to A.R.S. § 26-409 to obtain court-ordered visitation. The trial court entered a temporary order allowing them to participate in Roels’s supervised parenting time for a minimum of one hour per month. At that time, they had not spoken to the children in nearly four years, at Friedman’s insistence. ¶ 6 The trial court conducted a two-day hearing in August 2015. Grandparents testified that before the parents’ separation, they had enjoyed a close relationship with the children. They had attended M.’s birth and met R. a week after hers and frequently travelled to Tucson to attend school and sports activities and spend time with the family. On two occasions, they had provided child care during the day for multiple-day periods and were a regular presence in the children’s lives. After the separation, Friedman cut off Grandparents’ access to the children and insisted there be no contact between them. Grandparents, however, attempted to maintain contact by sending the children cards and gifts for their birthdays and holidays. ¶ 6 The children were initially averse to reuniting with their grandparents: Roels testified that when he first had spoken to them about the visits, M, had stated he “d[id]n’t want [Grandparents] to come.” After the first visit, however, “there just wasn’t any apprehension or ... tension.” Delana Cota, a family support specialist who supervised the first visit, described the children’s initial reaction to their grandparents as “quiet” and “awkward,” but recognized that “the mood of the visit elevated ... [and] [b]eeame more comfortable.” When Grandparents left, Cota overheard M. and R. discussing the visit and heard R. ask M., “Do you agree with me, it was good with grandparents,” to which M. said, “Pretty nervous about nothing.” R. then responded, “You would be fine if they came again, are you with me ... I like them coming.” ¶ 7 Bethany Aaronson, another independent visit supervisor, testified that Grandparents planned extensively for their court-ordered visits and the children appeared to enjoy them. She characterized the visits as “very successful” and noted that when Grandparents were around, the activities were more structured and there was “more laughing, more kidding around” and everyone was “a little more involved and engaged.” In contrast, Aaronson described visits with only Roels as “unstructured” with “[t]he children often spending] a lot of time looldng at their devices.” But when Grandparents were present, “the children engaged with the activities, and as a result ... then began engaging with the adults.” On one occasion, “the children spontaneously got up and hugged [Grandparents] a second time before they left.” ¶ 8 Friedman and two therapists testified the children had anxiety and PTSD symptoms both during and outside the supervised visits. Beth Winters, the children’s former therapist who had never met or evaluated Grandparents, opined that the children “could have been” exhibiting behavior “indi-eat[iv]e ... [of] trauma” due to Grandparents’ visitation, but acknowledged that the children’s awareness of their mother’s feelings toward them grandparents could have influenced them. She also agreed that it is “important for children to have grandparents in them lives.” Karen Morse, the children’s other therapist, similarly testified they had been “trauma[tized]” in the past, but were improving as of October 2014. Morse, who also had never met or evaluated Grandparents, concluded that news of court-ordered grandparent visits had caused the children to become more anxious, and opined that they experienced trauma during Grandparents’ visits. ¶ 9 The trial court found the expert opinions to be of limited usefulness, and in a detailed under-advisement ruling, after considering all relevant evidence, “including the demeanor and credibility of the parties,” determined it was in the children’s best interests to have visitation with their grandparents. The court entered an order entitling Grandparents to video calls with the children every two weeks and allowing them to participate in portions of Roels’s supervised parenting time. Friedman filed a timely motion for new trial, which the court denied, and this appeal of the denial of the motion for new trial followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(5). Grandparents’ Visitation Request ¶ 10 Friedman contends the trial court erred in awarding Grandparents visitation despite Friedman, as the children’s “only fit parent,” having determined the visits were contrary to the children’s best interests. We review the decision to award grandparent visitation for an abuse of discretion. McGovern v. McGovern, 201 Ariz. 172, ¶ 6, 33 P.3d 506, 509 (App. 2001). ¶ 11 Section 25-409(C), A.R.S., provides “a person other than a legal parent may petition the superior court for visitation with a child” and the court “may grant visitation rights during the child’s minority on a finding that the visitation is in the child’s best interests and ... [f]or grandparent or great-grandparent visitation, the marriage of the parents has been dissolved for at least tlmee months.” Subsection (E) further states: In deciding whether to grant visitation to a third party, the court shall give special weight to the legal parents’ opinion of what serves their child’s best interests and consider all relevant factors including: 1. The historical relationship, if any, between the child and the person seeking visitation. 2. The motivation of the requesting party seeking visitation. 3. The motivation of the person objecting to visitation. 4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities. § 25—409(B). Subsection (F) adds, “If logistically possible and appropriate, the court shall order visitation by a grandparent or great-grandparent if the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access to the child.” § 25-409(F), Finally, subsection (G) directs grandparents and great-grandparents to petition for visitation in the same case in which the court determined the parents’ legal decision-making authority and parenting time. § 25-409(G). ¶ 12 As § 25-409(E) states, a trial court considering a request for non-parent visitation must give “special weight to the legal parents’ opinion of what serves their child’s best interests.” This aligns with the Supreme Court’s holding in Troxel v. Gran ville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). As Friedman points out, the Court in that case held that parents have a fundamental liberty interest under the Fourteenth Amendment to the “care, custody, and control of their children,” with a “presumption that fit parents act in the best interests of their children.” Trowel, 530 U.S. at 65, 68, 120 S.Ct. 2054; see also McGovern, 201 Ariz. 172, ¶ 17, 33 P.3d at 511. “However, grandparent visitation granted within the parameters of § 25-409 ‘does not substantially infringe on parents’ fundamental rights.’” Lambertus v. Porter, 235 Ariz. 382, ¶ 29, 332 P.3d 608, 614 (App. 2014) (Brown, J., dissenting), quoting McGovern, 201 Ariz. 172, ¶ 9, 33 P.3d at 509. ¶ 13 In McGovern, this court set forth “constitutionally based principles that a trial court should ... follow in determining .,. grandparent visitation rights under § 25-409.” 201 Ariz. 172, ¶ 17, 33 P.3d at 511. First, the court should apply a rebuttable presumption that “a fit parent acts in his or her child’s best interest in decisions ... concerning grandparent visitation.” Id. And second, the court must give “‘some special weight’ to a fit parent’s determination of whether visitation is in the child’s best interests.” Id. ¶ 18, quoting Trowel, 530 U.S. at 70, 120 S.Ct. 2054. The McGovern court concluded that “[t]he amount of weight a trial court should place on these factors” is an issue left “for development on a case-by-case basis.” Id., quoting Harrington v. Daum, 172 Or. App. 188, 18 P.3d 456, 460 (2001). We stressed that these principles “affect but do not necessarily control a trial court’s determinations of ‘best interests of the child’ and ‘reasonable [grandparent] visitation rights’ under [§ 25-409].” Id. ¶ 19. ¶ 14 Here, the trial court followed McGovern and applied the presumption that Friedman was acting in the children’s best interests in denying visitation, but ultimately expressly determined Grandparents had rebutted that presumption, In reaching its conclusion, the court made extensive findings regarding the children’s best interests while acknowledging it was required to “give ‘some special weight’ to a fit parent’s determination of whether visitation is in the child’s best interest” and “consider all relevant factors, including those ... enumerated in A.R.S. § 25-409.” See § 25^09(E). In doing so, the court explicitly “g[ave] deference to [Friedman]’s position” and “applied the presumption that [Friedman] has and shall continue to make decisions that are in the children’s best interests.” ¶ 15 Specifically, the trial court found Grandparents had a “significant relationship [that] was very positive with the children” until the parents separated, see § 25-409(E)(1), and since the relationship resumed in 2015, it had been “progressing well.” The court noted “[Grandparents ha[d] planned for weeks for each visit and ha[d] provided activities and structure to keep the children involved,” which the children responded well to, offering “spontaneous hugs” at the end of some visits. It additionally considered the testimony of Bethany Aaronson that Roels experienced quality parenting time when Grandparents were present; Aaronson observed “a lot of laughter and joking,” but noted “the children’s affect changed upon seeing Mother following the visits” immediately from a happy demeanor to a subdued one. ¶ 16 As for the therapists’ opinions, the trial court found that Morse had only reviewed “very limited, selected supervised visitation reports provided by [Friedman]”; had never observed the children with Grandparents or Roels; her primary input had been from Friedman; and it was unclear how she had ascertained Friedman was not alienating the children from Grandparents. The court further noted that Winters had not had much time with the children in recent years. It is well established that “[t]he weight and credibility to be given expert testimony are matters to be decided by the factfinder.” Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 45, 945 P.2d 317, 356 (App. 1996), quoting State v. Moyer, 151 Ariz. 253, 255, 727 P.2d 31, 33 (App. 1986); see also State v. Pesqueira, 235 Ariz. 470, ¶ 14, 333 P.3d 797, 802 (App. 2014) (“the weight and credibility of [expert] testimony ... are questions of fact”), quoting Pipher v. Loo, 221 Ariz. 399, ¶ 17, 212 P.3d 91, 96 (App. 2009). ¶ 17 The trial court also found Grandparents were “motivated by love” of the children and a desire to influence them in a positive way, among other factors, and expressed its concern that Friedman was motivated in part by a continued desire to exclude Grandparents because of her relationship with them. See § 25-409(E)(2)-(3). The court was also concerned that some of the children’s reported behaviors and reactions to Roels and Grandparents were “due to [Friedman’s] own reactions” to them. The court further found that the visitation requested by Grandparents would not have “an adverse impact on the children’s customary activities.” See § 25-409(E)(4). Finally, the court noted that Roels “wants his parents to continue to have a relationship with the children.” ¶ 18 On the latter point, it is significant that there are two parents here who agreed to share decision-making, and they have conflicting views about whether it is in their children’s best interests to have visitation with their grandparents. Roels articulated his position at trial, stating he felt it was important for the children to have a relationship with his parents because “they need to know also where they come from” and should “connect[ ] to more than just [their] mom and dad.” Friedman, on the other hand, opposed the few hours of grandparent visits, claiming it caused “[the] kids” to “[go] down hill,” and alleging increased anxiety, panic attacks, and problems at school. Although Roels’s rights in relation to the children bear some significant restrictions and the parties agreed that Friedman has “final decision making authority” in the event of a disagreement, as Grandparents point out, Roels was not found to be an unfit parent and therefore his “determination” is also entitled to “special weight.” See Troxel, 630 U.S. at 68-70, 120 S.Ct. 2054. ¶ 19 We conclude the trial court applied the proper standards in awarding visitation to Grandparents. The court correctly employed the fit-parent presumption and the factors set forth in § 25-409(E), it expressly accorded “special weight” to Friedman’s position, and there is sufficient evidence to support its conclusion that Grandparents had overcome the presumption. ¶20 Friedman and our dissenting colleague rely on Goodman v. Forsen, 239 Ariz. 110, 366 P.3d 687 (App. 2016), issued after the trial court ruled in this case. There, Division One of this court addressed a situation in which the mother opposed her former cohabiting girlfriend’s request for visitation with the child. The court reversed the trial court’s visitation order in favor of the former girlfriend, holding that the “special weight” accorded a parent’s visitation decision means the party seeking visitation must prove the denial of visitation “would substantially impair the child’s best interest.” Friedman argues that Goodman should be applied retroactively to this case and that Grandparents failed to meet its standard. Grandparents respond that Goodman set new, heightened requirements not contained in either § 25-409 or McGovern, and should not be applied here. We conclude, however, we need not resolve those issues because we find Goodman significantly distinguishable. ¶21 In Goodman, only one parent was involved, as the father’s rights had been severed. 239 Ariz. 110, ¶ 3, 366 P.3d at 588. The father in this case, however, has always been, and continues to be, involved in the children’s lives. As noted above, absent a finding that he was an unfit parent, the trial court, pursuant to § 25-409(E), properly considered Roels’s position that maintaining a relationship with their grandparents was in the children’s best interest. Furthermore, the person seeking visitation in Goodman was a former cohabiting partner with no other ties to the child. 239 Ariz. 110, ¶¶ 4-6, 366 P.3d at 588. In contrast, the grandparents here have bio logical and familial ties that will be present now and in the future. See, e.g,, Graville v. Dodge, 195 Ariz. 119, ¶ 26, 985 P.2d 604, 610 (App. 1999) (noting state’s interest in promoting “continuation of caring relationships between family members, particularly among grandchildren and their grandparents”); Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512, 525 (2006) (all states have a system for awarding grandparent visitation because they recognize “the importance of the grandparent-grandchild relationship in the lives of children”), quoting Moriarty v. Bradt, 177 N.J. 84, 827 A.2d 203, 210 (2003). Finally, the Goodman court noted the mother’s concerns about the former girlfriend fighting with her current girlfriend in the child’s presence, and that she had spanked the child and “struck her face,” 239 Ariz. 110, ¶¶ 4-6, 366 P.3d at 588-89. Thus, to the extent Goodman may establish a more stringent standard for court-ordered visitation than § 25-409 and McGovern, we decline to extend its holding to the very different situation presented here. ¶ 22 The trial court made detailed findings clearly supported by the evidence, see In re Estate of Newman, 219 Ariz. 260, ¶ 13, 196 P.3d 863, 868 (App. 2008), and viewing that evidence in the light most favorable to upholding the court’s ruling, see Johnson, 131 Ariz. at 44, 638 P.2d at 711, we conclude Grandparents demonstrated that Friedman’s decision to bar them from visitation was not in the children’s best interests, see McGovern, 201 Ariz. 172, ¶¶ 17-18, 33 P.3d at 511. Accordingly, we cannot say the court’s limited visitation award was an abuse of its discretion. Although our dissenting colleague concludes “[t]he constitutional protection afforded to parents represents a high bar[,]” it should not be so high that few, if any, grandparents could ever clear its hurdle were there a requirement of establishing harm to the children from denial of visitation in every case. Trial Court’s Denial of Attorney Fees ¶ 23 Friedman also appeals the trial court’s denial of her request for attorney fees pursuant to A.R.S. § 25-324(A), which allows a discretionary fee award in domestic relations proceedings, including requests for non-parent visitation pursuant to § 25-409. The court has discretion to grant such an award “after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings.” § 25-324(A). We review the court’s denial of fees for an abuse of discretion. Myrick v. Maloney, 235 Ariz. 491, ¶ 6, 333 P.3d 818, 821 (App. 2014). ¶ 24 In assessing the fee request, the trial court imputed an $80,000 annual income to Friedman based on her earnings the previous year, and compared Grandparents’ $122,000 annual income. It also considered that Friedman is “expected to be sharing expenses with her boyfriend in California” and that their combined income “will probably be greater than [G]randparents[’],” despite having heard no testimony about the boyfriend’s income. Though it appeal’s the court may have made an unsupported assumption about Friedman’s prospective income, in light of the reasonableness of each party’s positions and § 25-324(A)’s discretionary nature, we see no reason to disturb the court’s decision to decline the fee request. Attorney Pees on Appeal ¶ 25 Both parties request an award of fees and costs on appeal pursuant to § 25-824. After considering the financial resources and the reasonableness of the positions of the parties, we find each side should bear its own fees and costs on appeal. See Leathers v. Leathers, 216 Ariz. 374, ¶ 22, 166 P.3d 929, 934 (App. 2007). Disposition ¶ 26 For all of the reasons discussed above, the trial court’s order granting visitation with Grandparents is affirmed. . Grandfather testified he did not know whether the cards and gifts actually had reached the children, but said "most of the time” previously they would receive thank-you cards, written by Friedman or, later, drawn by the children, but that stopped in 2010 with the separation. . Posttraumatic stress disorder. . The bulk of Roels's parenting time and Grandparents’ visits were to occur by video because of Friedman’s pending relocation with the children to California, which Roels stipulated to the day before the hearing began. . The dissent suggests Roels should not be considered a fit parent due to the agreement limiting his rights, and notes that Grandparents did not argue otherwise below. But the trial court had a statutory duty to consider the positions of both parents in relation to the best interests of the children, notwithstanding any agreements between the parties. A.R.S, § 25-409(E) (court "shall give special weight to the legal parents’ opinion") (emphasis added). Furthermore, even if this could properly be characterized a "waived” argument, it is well established we are not limited to the theories of the parties in upholding the trial court's correct decision. See State v. Huez, 240 Ariz. 406, ¶ 19, 380 P.3d 103, 109 (App. 2016) (appellate court required to affirm trial court's ruling if legally correct for any reason). . The dissent argues "we should conclude the legislature did not intend any distinction [between grandparents and other third-parties] be drawn.” But this assertion discounts, if not ignores, the numerous distinctions drawn in the statute itself. For example, A.R.S. § 25-409(F) mandates that the trial court "shall,” if logistically possible and appropriate, "order visitation by a grandparent or great-grandparent if the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access,” a benefit not afforded to other third-parties seeking visitation. Moreover, the trial court not only could but was required to consider the nature of the relationship between Grandparents and the children. § 25—409(E)(1)—(2), (4). . Our dissenting colleague would find the evidence insufficient to support the trial court’s ruling, but he focuses on the factors involving Grandparents' motivation, while ignoring or discounting other evidence the court expressly and implicitly considered, including Grandparents' positive effects on the children's visits with Roels, the potential loss to the children of the love and support of their extended family, indications that Friedman’s efforts to alienate the children from Grandparents were exacerbating the children's anxiety, and the negative effects of her "setting the kids up” to be unhappy about Grandparents.

JUSTICE BOLICK, opinion of the Court: BACKGROUND ¶ 1 Darrel Pandeli was sentenced to death in 1998 for the murder of Holly Iler. This Court affirmed the conviction and death sentence. State v. Pandeli (Pandeli I), 200 Ariz. 366, 382-83 ¶ 94, 26 P.3d 1136, 1153-64 (2001). However, the United States Supreme Court vacated the judgment and remanded the ease for further consideration in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Pandeli v. Arizona (Pandeli II), 536 U.S. 953, 122 S.Ct. 2654, 153 L.Ed.2d 830 (2002) (mem.). This Court vacated the death sentence and remanded to the trial court for a new sentencing hearing. State v. Pandeli (Pandeli III), 204 Ariz. 569, 572 ¶ 11, 65 P.3d 950, 953 (2003). On remand, the jury found that Pandeli should be put to death. This Court affirmed. State v. Pandeli (Pandeli IV), 215 Ariz. 514, 533 ¶ 85, 161 P.3d 557, 576 (2007). ¶ 2 In July 2011, Pandeli’s post-conviction relief (“PCR”) attorney filed a petition alleging multiple trial court errors, prosecutorial abuses, and fifteen claims of ineffective assistance of counsel (“IAC”). In September 2012, the PCR court largely denied the petition but set an evidentiary hearing on the IAC claims. The PCR court subsequently granted relief on all those claims as well as an additional due process violation, setting aside Pandeli’s death sentence, and ordering a new aggravation and penalty phase sentencing trial. The State sought review from this Court. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. §§ 13-755 and 13-4031. For the reasons set forth below, we reverse. DISCUSSION ¶ 3 We examine a PCR court’s findings of fact to determine if they are clearly erroneous. State v. Cuffle, 171 Ariz. 49, 51, 828 P.2d 773, 775 (1992). Arizona Rule of Criminal Procedure 32.8(d) requires a court to “make specific findings of fact, and .,. state ejquessly its conclusions of law relating to each issue presented.” See State v. Tankersley, 211 Ariz. 323, 324, 121 P.3d 829, 830 (2005). Unfortunately, the PCR court made few specific findings and failed to connect them to its conclusions on many of the issues presented. The court failed to make findings for some claims at all. Most problematic, the PCR court did not explain how Pandeli suffered prejudice from any of the acts or omissions it deemed to constitute IAC or to violate due process. Cf. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (recognizing prejudice as an element for an IAC claim). As a result, our ordinary deference to the PCR court’s factual findings is largely inapplicable here. Instead, we have reviewed the record and conclude that Pandeli did not establish IAC or prove his due process claim. A. IAC Claims ¶ 4 Whether Pandeli’s lawyers “rendered ineffective assistance is a mixed question of fact and law.” State v. Denz, 232 Ariz. 441, 444 ¶ 6, 306 P.3d 98, 101 (App. 2013). We review the court’s legal conclusions and constitutional issues de novo. Id,; see also State v. Newell, 212 Ariz. 389, 397 ¶ 27, 132 P.3d 833, 841 (2006). However, we ultimately review a PCR court’s ruling on a petition for post-conviction relief for an abuse of discretion. State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986). An abuse of discretion occurs if the PCR court makes an error of law or fails to adequately investigate the facts necessary to support its decision. State v. Wall, 212 Ariz. 1, 3 ¶ 12, 126 P.3d 148, 150 (2006); State v. Douglas, 87 Ariz. 182, 187, 349 P.2d 622, 625 (1960). ¶ 5 The State contends the PCR court erred in granting relief on Pandeli’s IAC claims because it did not properly apply the highly deferential standards for reviewing such claims under the two-pronged test set forth in Strickland, 466 U.S. at 687, 104 S.Ct. 2052. “Under Strickland, we first determine whether counsel’s representation ‘fell below an objective standard of reasonableness.’” Hinton v. Alabama, — U.S. -, 134 S.Ct. 1081, 1088, 188 L.Ed.2d 1 (2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)). This inquiry focuses on the “practice and expectations of the legal community,” and asks, in light of all the circumstances, whether counsel’s performance was reasonable under prevailing professional norms. Id. ¶ 6 Next, a defendant must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undemine confidence in the outcome.” Id. at 1089 (quoting Strick land, 466 U.S. at 694, 104 S.Ct. 2062). But “[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding,” because then “[v]irtually every act or omission of counsel would meet that test.” Strickland, 466 U.S. at 693, 104 S.Ct. 2062. Although a defendant must satisfy both prongs of the Strickland test, this Court is not required to address both prongs “if the defendant makes an insufficient showing on one.” Id. at 697, 104 S.Ct. 2062. ¶ 7 Thus, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id, at 689,104 S.Ct. 2052 (citation and internal quotation marks omitted). A defendant does so by showing that his counsel’s performance fell outside the acceptable “range of competence,” and did not meet “an objective standard of reasonableness.” Id. at 687-88,104 S.Ct. 2062. In short, reviewing courts must be very cautious in deeming trial counsel’s assistance ineffective when counsel’s challenged acts or omissions might have a reasonable explanation. ¶ 8 The PCR court did not apply this deferential standard of review, instead repeatedly second-guessing counsel’s strategy decisions. Simply disagreeing with strategy decisions cannot support a determination that representation was inadequate. Id. at 689, 104 S.Ct. 2062 (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”). We proceed to assess each of the PCR court’s findings of inadequate assistance in turn. 1. Failure to cross-examine Dr. Bayless ¶ 9 Many of the PCR court’s findings pertain to the fact that Pandeli’s counsel did not cross-examine the State’s key witness, Dr. Brad Bayless, a psychologist, during the penalty phase. Pandeli argued five general types of mitigation: he was physically and sexually abused as a child, began abusing drugs and alcohol at an early age, suffered from a cognitive disorder, behaved well while in prison, and could maintain positive relationships. Pandeli IV, 216 Ariz. at 631-33 ¶¶ 70-83, 161 P.3d at 574-76. In rebuttal, the State called Dr. Bayless to testify about Pandeli’s mental health and other characteristics. Defense counsel did not cross-examine Dr. Bayless. The PCR court observed, Dr. Bayless is a state’s witness who routinely testified for the state in death penalty cases. In most cases, Dr. Bayless testifies that a defendant is psychotic and that there’s no saving him. Dr. Bayless frequently doesn’t have any scientific basis for his opinion. He used projective tests that are subjective and should not be used in a death penalty case. His testing was not appropriate and misleading. In this vein, the PCR court engaged in second-guessing defense counsel’s strategic decision to forgo cross-examination of Dr. Bay-less and rebut his testimony with their own expert. Cf. Strickland, 466 U.S. at 690, 104 S.Ct. 2052 (“[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”). Moreover, the court made sweeping generalizations unmoored to specific findings of IAC, ¶ 10 The PCR court further found, based on the testimony of attorney Michael Reeves, Pandelli’s professional standards expert, that defense counsel “should have cross-examined Dr. Bayless or somehow dealt with the information and testimony he presented. [Defense counsel] did not counteract any information presented by Dr. Bayless.” ¶ 11 Pandeli’s lead counsel, Gary Shriver, acknowledged that the failure to cross-examine Dr, Bayless was a spur-of-the-moment decision resulting from “wrongheadedness.” Co-counsel Dawn Sinclair testified that they were not fully prepared to deal with Dr. Bayless because they did not know what questions to ask about his report. Thus, the court found that Pandeli’s attorneys were unprepared to interview or cross-examine Dr. Bayless or challenge the unsupportable conclusions he made. The court further found that “both attorneys agreed that the decision [not to cross-examine Dr. Bayless] was not strategic and [was] a failure of counsel to adequately defend [Pandeli].” ¶ 12 Considering the entire record, however, we conclude that Pandeli failed to prove IAC, and the PCR court erred by finding otherwise. Although the decision not to interview Dr. Bayless was “made on the fly,” it was an informed and defensible one made on the basis of extensive investigation and preparation. At the PCR hearing, Shriver testified that he had “known Dr. Bayless since [he] started practicing,” and he believed that as an adversary witness, Dr. Bayless was “hard to control.” He also believed that Dr. Bayless “was known to sandbag and bring out more ... harmful stuff during a defense cross.” Shriver also found that when Dr. Bayless would testify before a jury “there was a performance” and “[i]t wasn’t simply providing testimony as an expert,” but rather Dr. Bayless was “wait[ing] [to] bring even more, bring the real guns out in cross.” Therefore, Shriver believed “that simply cross-examining [Dr. Bayless] before a jury is not necessarily the key. It doesn’t mean that you are going to successfully examine him at least in my opinion.” ¶ 13 Shriver explained “what was on [his] mind” when he decided to forgo cross-examination, namely that he could prevent Dr. Bayless from further harming Pandeli’s case on cross-examination, as he was known to do. Shriver believed that Dr. Bayless’s direct examination was not nearly as harmful as the defense anticipated. Thus, Shriver was worried that Dr. Bayless would use cross-examination as an opportunity to “thrust and parry to get his points across.” Finally, by declining cross-examination, Shriver would deprive the State of an opportunity for redirect. ¶ 14 The record fails to show defense counsel was unprepared to cross-examine Dr. Bayless. To prepare for the resentencing trial, Shriver compiled transcripts of Dr. Bay-less’s testimony from other cases, discussed with other defense attorneys how to deal with Dr. Bayless, and interviewed him several times over three days. Shriver testified that he and Sinclair prepared an outline and were prepared to cross-examine Dr. Bayless when trial started. He also believed that he had somewhat impeached Dr. Bayless’s findings through the testimony of Pandeli’s expert, Dr. Mark Cunningham. Therefore, Shriver and Sinclair, after a brief discussion, chose to forgo cross-examination to prevent Dr. Bayless from further damaging Pandeli’s case. Based on their research and experience with Dr, Bayless, counsel reasonably concluded that a cross-examination would give the expert a chance to inflict greater damage than he had on direct. See State v. Farni, 112 Ariz. 132, 133, 539 P.2d 889, 890 (1975) (“The failure of defense counsel to cross-examine one witness and question others on certain points was also a tactical decision and is not evidence of incompetence.”). ¶ 15 The PCR court erred by substituting its after-the-fact judgment for counsel’s during trial. “Disagreements as to trial strategy or errors in trial will not support a claim of ineffective assistance of counsel as long as the challenged conduct could have some reasoned basis.” State v. Meeker, 143 Ariz. 256, 260, 693 P.2d 911, 915 (1984). Counsel clearly had, at a minimum, “some reasoned basis,” State v. Nirschel, 155 Ariz. 206, 209, 745 P.2d 953, 956 (1987), for forgoing cross-examination of Dr. Bayless. Thus, the PCR court overlooked evidence that the decision not to cross-examine Dr. Bayless was the product of a reasoned (even if mistaken) strategic judgment. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052 (“strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable”). ¶ 16 Moreover, counsel did not leave Dr. Bayless’s testimony completely uneontested, but rather used their own defense experts to rebut significant portions of his testimony. Contra United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (“[I]f counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.”). Although defense counsel, in hindsight, may have “dropped the ball” by not calling Dr. Cunningham back to the stand to reinforce his earlier testimony that contradicted Dr. Bayless, that mistake did not constitute IAC given the fact that counsel did impeach much of Dr. Bayless’s testimony through other witnesses. ¶ 17 For example, as Shriver testified, counsel laid the groundwork to impeach Dr. Bayless through Dr. Cunningham by: [Setting] the table to show that a lot of these concepts that Bayless would testify in the State’s case were not sound, under sound psychology. Now, I didn’t feel that I had completely done away with any harm from Bayless’ testimony by asking Dr. Cunningham certain questions, but I felt we had at least provided a basis for the jury to understand that Bayless should not be given as much credibility as he would have liked or the State would have liked. Although counsel did not fully impeach Dr. Bayless’s testimony through Dr. Cunningham, he strategically elicited information that put the jury on notice that Dr. Bayless’s methods and testimony might not be accurate. ¶ 18 Defense counsel anticipated that Dr. Bayless would testify that Pandeli malingered during his psychological tests. Therefore, counsel attempted to preemptively combat that testimony by having Dr. Marc Walter testify that he believed Pandeli was “putting forward good effort” in the tests. Dr. Walter also testified that he disagreed with Dr. Bayless’s diagnosis that Pandeli had a mild learning disability, stating that Pandeli had a “very serious learning disability” and did not think things through “because of the frontal lobe dysfunction.” ¶ 19 Dr. Bayless’s use of projective tests was called into question at the PCR hearing by several witnesses. Michael Reeves, Dr. Weinstein (a psychologist specializing in clinical and forensic neuropsychology), and Dr. Jones (a forensic psychologist) all criticized Dr. Bayless’s use of projective tests because they do not have standardized scores. At trial, Dr. Cheryl Karp also testified that some of the tests are not appropriate to “generate ... a diagnosis,” which served to impeach Dr. Bayless’s findings. ¶ 20 Finally, Dr. Bayless’s determination that Pandeli has antisocial personality disorder was called into question at trial. Counsel elicited testimony from Dr. Cunningham that Pandeli “[potentially ... would meet the adult criteria for anti-social personality disorder,” but that diagnosis was “irrelevant” for sentencing determination because it did not inform “how [Pandeli] came to be damaged.” In closing, counsel reiterated this point, telling the jury that “[t]he State and Dr. Bayless missed the point entirely.... That [Pandeli] has antisocial personality disorder doesn’t rebut a single thing that the defense had put on.... [T]hat diagnosis tells you nothing with respect to this sentencing proceeding.” ¶ 21 The decision to use other expert testimony to attempt to preemptively impeach parts of Dr. Bayless’s testimony and then forgo cross-examination was a strategic decision that defendant has not demonstrated falls below the level expected of a reasonably competent defense attorney. Cf. State v. Goswick, 142 Ariz. 582, 586, 691 P.2d 673, 677 (1984) (no IAC if counsel’s decision had a reasoned basis rather than the result of “ineptitude, inexperience, or lack of preparation”). No finding was made that the decision lacked “some reasoned basis,” and the evidence would not support such a finding. 2. Failure to obtain brain imaging scans ¶ 22 The PCR court found that defense counsel’s failure to present medical documentation of brain injury and brain dysfunction constituted IAC. After the PCR hearing, the court found that “[objective testing would have shown that [Pandeli] had frontal lobe impairment and it was causally connected to his childhood and development issues.” ¶ 23 Pandeli argues that no strategic reason existed to forgo a brain scan to document Pandeli’s brain damage, especially a quantitative electroencephalogram (“QEEG”) scan. The State argues that counsel called two experts who testified that Pandeli had a brain injury, and did not need to present additional and cumulative evidence of brain injury. We conclude the decision not to present further documentation of brain injury and dysfunction was a strategic choice and did not constitute IAC. ¶ 24 Defense counsel hired Dr. Walter to perform a neuropsychological evaluation of Pandeli, which included reviewing medical records, interviewing Pandeli, and giving him psychological and neuropsychological tests. Dr. Walter testified at trial that Pandeli’s frontal lobe was impaired. Dr. Walter did not use any documented brain scans in his testing, such as magnetic resonance imaging (“MRI”), computerized tomography (“CT scan”), positron emission tomography (“PET scan”), or QEEG to make his diagnosis. He testified that he did not recommend these types of brain scans because “there’s not necessarily a good correlation between these tests and actually .., what a person’s cognitive abilities are. So ... there is controversy about whether ... they are helpful in terms of forensic cases like this one.” Dr. Walter also testified that these scans could produce “false positives and false negatives,” so he must administer the same neuropsychological tests despite whatever results come from a brain scan. Dr. Cunningham agreed at trial, reiterating that brain scans can produce false positives and negatives, and that the findings from the neuropsychological tests that were administered could “stand on their own.” ¶ 25 At the PCR hearing, Dr. Weinstein testified that Dr. Walter was a “very qualified neuropsychologist” and used the right neuropsychological tests to evaluate Pandeli. He testified that brain scans were unnecessary because frontal lobe impairment can be diagnosed solely on neuropsychological testing, and confirmed that Dr. Walter had performed such testing. He also stated that very few psychologists used QEEG scans in their practice in 2006 and that the scan was not required to diagnose frontal lobe impairment and was not a substitute for a neuropsycho-logical evaluation. ¶ 26 Given this record, the decision to forgo brain scans was a reasoned, strategic decision by Pandeli’s counsel and does not establish IAC. 3. Failure to present sufficient mitigation and develop a nexus ¶ 27 The PCR court found that defense counsel’s “failure to conduct a thorough investigation of the defendant’s background and present sufficient mitigating evidence in an attempt to establish a nexus between the mitigation and the crime” constituted another instance of IAC. The court found that trial counsel “failed to have psychological or neu-ropsychological evaluations done” and “failed to hire a psychologist or neuropsychologist to explore the various different aspects of how Mr. Pandeli’s childhood was destructive of his entire personality.” It also found that counsel were ineffective because they failed to establish a causal relationship “between brain impairment and the death penalty” and “failed to develop a nexus between the psychologist’s reports and Mr. Pandeli’s crimes.” Finally, it concluded that counsel “did an insufficient investigation into [Pandeli’s] background, to understand how it related to the offense,” which “fell short of prevailing professional norms.” Thus, the court determined that “comparing the totality of the evidence that actually was presented to the jury with the totality of the evidence that might have been presented had counsel acted differently, makes it highly probable that the outcome of the proceedings might have been different.” ¶ 28 The record does not support the court’s finding. Counsel testified that they were aware that the United States Supreme Court held in Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), that establishing a causal nexus between the mitigating evidence and the crime is not required, but that they believed the jury and this Court would give the mitigation evidence more weight if a nexus was established. See State v. Roseberry, 237 Ariz. 507, 509 ¶ 12, 353 P.3d 847, 849 (2015) (“[A]ll mitigation evidence must be considered and ... its causal relationship to the crime goes to the weight to be given to the evidence.”). Therefore, they attempted to prove a causal nexus by having a neuropsychological evaluation performed by Dr. Walter and a psychological evaluation performed by Dr. Cunningham, and both doctors testified at trial how Pande-li’s upbringing negatively affected his personality and behavior as an adult. The three mental health experts called by the defense each testified about the causal nexus between Pandeli’s traumatic childhood and mental impairment and the murder he committed. Additionally, in closing, counsel argued that Pandeli’s childhood and mental impairments contributed to Iler’s murder. ¶ 29 This Court acknowledged that Pande-li: attempted to tie his mental impairment to the crime. Dr. Walter testified that frontal lobe impairment makes a person act impulsively, can cause violence, and could have led to the murder of Iler. Similarly, Dr. Cunningham testified that the murders of both Humphreys and Iler were disorganized, demonstrating that Pandeli’s impairment may have played a role in them. Pandeli IV, 216 Ariz. at 633 ¶ 79, 161 P.3d at 676. ¶ 30 Pandeli has not identified any relevant aspect of his background left uninvestigated or unpresented. The testimony provided by Dr. Weinstein and Dr. Jones at the PCR hearing closely paralleled the testimony given by Dr. Cunningham and Dr, Walter at trial. Both sets of experts concluded that Pandeli’s childhood trauma and neurological impairments explained his criminal conduct. Although no additional or new investigation was conducted into Pandeli’s background, Dr. Weinstein and Dr. Jones interviewed Pandeli and relied on the records compiled by defense counsel for the 2006 resentencing proceeding. While there were minor differences in the testimony given by the experts at trial and the PCR hearing, the trial experts merely used different methodology to reach the same conclusions as the PCR experts. Thus, the PCR court’s findings related to the issue of failure to investigate mitigation evidence properly are also clearly wrong. Ultimately, Pandeli did not meet his burden of proof that counsel was deficient with regard to this issue. 4. Failure to object to other act evidence ¶ 31 The PCR court found IAC because counsel failed to challenge the State’s rebuttal evidence during the penalty phase of the trial, specifically evidence that Pandeli’s former girlfriend, L.R., alleged he had molested her daughter. This was an informed, strategic decision that did not constitute IAC. ¶ 32 When L.R. was unavailable to testify at resentencing, the State read L.R.’s interview statements to the jury during rebuttal. The court granted defense counsel’s motion to exclude L.R.’s statements regarding other persons’ allegations of Pandeli’s prior bad acts that she had heard about. However, counsel did not object to the State admitting L.R.’s statement about what Pandeli did to her daughter. ¶33 At the PCR hearing, Shriver explained that he originally tried to limit the State’s rebuttal evidence during the penalty phase to only the evidence that rebutted the mitigation evidence he planned to provide. However, the trial court ruled that based on A.R.S. § 13-751(C), the State could present any relevant and reliable hearsay as rebuttal evidence, even if unrelated to the mitigation evidence. Shriver testified at the PCR hearing that this put them “on notice ... that a lot of this stuff is coming in.” With that in mind, counsel believed that “since the jury is going to hear [evidence of Pandeli’s other acts,] ... [counsel] attempted to show ... that’s not that unusual given the circumstances of Mr. Pandeli’s upbringing.” Therefore, counsel attempted to show that the alleged molestation was a product of damage that Pandeli sustained early in his childhood. Given the trial court’s ruling on relevant and reliable hearsay, it is understandable that counsel accepted admission of L.R.’s statements and attempted to use them to bolster his mitigation evidence. See James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (“Counsel’s failure to make a futile motion does not constitute ineffective assistance of counsel.”). 5. Failure to challenge aggravating factors ¶34 The PCR court did not make specific findings of fact on the prior homicide and the heinous and depraved aggravators, but found that counsel “failed to challenge the aggravators offered by the state. This includes aggravators in regard to infliction of gratuitous violence, senselessness of the crime and the helplessness of the victim.” See State v. Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983) (relishing of the murder, infliction of gratuitous violence, mutilation of victim, senselessness of the crime, and helplessness of victim are factors in evaluating heinous and depraved aggravator). At resentencing, the State sought to prove the (F)(2) aggravator—that Pandeli had been “previously convicted of a serious offense”—by introducing evidence of his 1996 conviction for the second-degree murder of Teresa Humphreys in 1992. See Pandeli I, 200 Ariz. at 370 ¶¶ 2-3, 375 ¶ 33, 26 P.3d at 1141, 1146. The State also sought to prove the (F)(6) aggravator— that Pandeli committed the murder of Iler “in an especially heinous, cruel or depraved manner”—by introducing evidence that Pandeli mutilated her body and kept souvenirs from the murder. The jury found that the State proved both aggravating factors, as did this Court on independent review. Pandeli IV, 215 Ariz. at 531 ¶ 69, 161 P.3d at 574. ¶ 35 Defense counsel moved to dismiss both the (F)(2) and (F)(6) aggravators in pretrial motions. Counsel testified at the PCR hearing that, after the motions were denied, they decided not to challenge the aggravators in order to maintain credibility with the jury. Counsel testified that “[i]t was dead certain” that the State was going to be able to prove the (F)(2) aggravator pertaining to a prior serious offense because Pandeli had already been convicted of second-degree murder of Humphreys. Counsel also testified that regardless how they attempted to challenge the (F)(6) aggravator, it would be clear that Ileris nipples had been removed. Thus, counsel continued, if they were to somehow try to argue that ... if it wasn’t done as mutilation, which would be ... post-death[,] then they would have been done while the woman was still alive, which would have then likely gotten into the gratuitous violence situation, so the way we analyzed it is if we were going to lose on that no matter what we did, ... to spend a lot of time having [the jury] parse whether or not this person was ... depraved loses something. ¶ 36 Thus, counsel determined that “fighting ... to fight the fight was to me not a wise thing” because he would have “lost credibility” in the eyes of the jurors if he had futilely challenged the (F)(6) aggravator. Given this record, Pandeli did not prove deficient performance by counsel. 6. Failure to object to rebuttal evidence ¶ 37 The PCR court found that counsel’s “failure to object to [the] state’s presentation of violent sex and fantasies as acknowledged by the Supreme Court,” constituted IAC. However, the PCR court failed to make specific findings on this claim in its final ruling, as required by Rule 32.8(d). Regardless, the record does not support a finding of IAC. ¶ 38 During the penalty phase rebuttal, the State read interview statements from L.R. to the jury about Pandeli’s violent sexual fantasies, including his fantasy of killing a man who had abused him. Another former girlfriend testified that, on two separate occasions, Pandeli sexually assaulted her when he tied her up and pressed the “flat edge” of a knife against her throat. On appeal, this Court concluded that admission of this evidence did not constitute fundamental error. Pandeli IV, 215 Ariz. at 528 ¶ 47, 161 P.3d at 571. ¶ 39 At the PCR healing, Shriver testified that, at the time, he believed the testimony was admissible because of the trial court’s ruling that the State was permitted to introduce any relevant and reliable hearsay evidence to demonstrate why Pandeli should not be shown leniency. Nevertheless, he moved the court to limit the content of this evidence. Shriver testified that the court denied his motion so he was “forced then to work that into our theory,” and that the defense prepared for and cross-examined the former girlfriend on her testimony. ¶ 40 The court also found that defense counsel’s failure “to object to [the] state’s rebuttal evidence of violent sex, or to defendant’s fantasies of murder, opened the door to testimony of the prior murder and the photos of the Humphreys murder.” But counsel repeatedly filed motions to preclude or limit the testimony that the State sought to introduce. However, the State was permitted to introduce evidence that Humphreys’ body was found on a sidewalk, the scene indicated that she had been killed there, her body had multiple stab wounds, she had cuts to her throat and defensive wounds on her hands, and she had died of a stab wound to the chest. On appeal, we held that the trial court did not abuse its discretion by admitting this evidence because it was relevant and not unduly prejudicial. Pandeli IV, 215 Ariz. at 528-29 ¶¶ 52-53, 161 P.3d at 571-72. ¶ 41 At the PCR hearing, Shriver testified that he believed, under the existing ease law, that the facts and evidence of Humphreys’ murder would be admitted as relevant to leniency and his experts would be questioned about it. He also testified he believed that the Humphreys murder was “an integral part of [Pandeli’s] troubled life” and it was “part and parcel of his mitigation” to show that it was no surprise that he killed another woman but should nonetheless be shown leniency. ¶ 42 On this record, Pandeli has failed to meet his burden of proof that counsel’s performance was deficient. Counsel’s testimony at the PCR hearing established that counsel attempted to preclude the evidence, and when that failed, prepared their witnesses to be cross-examined on the facts and attempted to fit the evidence into the overall mitigation presentation. Counsel’s actions were the product of strategic decisions given the trial court’s ruling and did not constitute IAC. The PCR court abused its discretion in granting relief on this claim. 7. Failure to object to references to serial killers ¶ 43 The PCR court found that defense counsel’s “failure to object to reference of serial killers” constituted IAC. However, the PCR court made no specific findings on this claim in its final ruling, in violation of Rule 32.8(d). The record demonstrates that Pandeli did not meet his burden of proving IAC, ¶ 44 Pandeli argued in his PCR petition that the State “repeatedly asked questions about serial killers from material relied upon by Dr. Cunningham” and that “[mjost of those questions had no bearing on this case.” Pandeli claims that counsel were ineffective because they “did not object to the questions until well after [the State] had already asked those questions and placed in the jurorsf] mind that [Pandeli] was a serial killer.” ¶ 45 At the penalty phase retrial, the subject of serial killers was mentioned in a publication that Dr. Cunningham relied on. As Pandeli acknowledges, defense counsel raised multiple objections to the prosecutor’s general line of questioning that referenced the publication and unsuccessfully requested a mistrial on that basis. The record thus demonstrates that counsel vigorously contested the evidence. 8. Failure to object to Dr. Keen’s testimony ¶46 Dr. Buldoe performed the autopsy on Iler in 1993. During the aggravation phase of the resentencing trial, Dr. Keen testified that he had formed his own opinions about Iler’s cause of death based on the autopsy report and photograph exhibits displayed at trial. Dr. Buldoc’s autopsy report was not admitted. The PCR court found that counsel committed IAC by failing to object to permitting Dr. Keen to “stand[ ] in for someone absent” and “provid[e] conclusions and opinions in regard to aggravators which were not his own.” We reject this conclusion. Dr. Keen neither testified to any of Dr. Buldoe’s conclusions, nor was he a mere “conduit” for Dr. Buldoe. See State v. Lundstrom, 161 Ariz. 141, 148, 776 P.2d 1067, 1074 (1989) (“if the testifying expert merely acts as a conduit for another non-testifying expert’s opinion, the ‘expert opinion’ is hearsay and is inadmissible”). Rather, he properly testified to his own conclusions and was subjected to cross-examination. ¶ 47 In Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that out-of-court testimonial statements by witnesses are barred under the Confron tation Clause, unless the witnesses are unavailable and defendants had a prior opportunity to cross-examine those witnesses. Apparently relying on Crawford and its progeny, the PCR court determined that defense counsel should have objected to Dr. Keen’s testimony because he did not perform the autopsy himself. Although the United States Supreme Court has declined to create a “forensic evidence” exception to Crawford, see Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Bullcoming v. New Mexico, 564 U.S. 647, 662, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), the autopsy report on which Dr. Keen relied was nontestimonial and therefore not subject to the strictures of the Confrontation Clause. See State v. Medina, 232 Ariz. 391, 406 ¶¶ 61-62, 306 P.3d 48, 63 (2013) (autopsy report created to determine manner and cause of death is nontestimonial). Thus, objecting to his testimony would not have resulted in its preclusion. ¶ 48 In Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the United States Supreme Court held statements are testimonial when their primary purpose is to “establish or prove past events potentially relevant to later criminal prosecution.” The subsequent plurality opinion in Williams v. Illinois reinforced this notion, holding that testimonial statements subject to the Confrontation Clause are “out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct.” 567 U.S. 50, 132 S.Ct. 2221, 2242, 183 L.Ed.2d 89 (2012) (emphasis added). In his concurring opinion, Justice Thomas concluded the Confrontation Clause only extends to “formalized testimonial materials such as depositions, affidavits, and prior testimony, or statements resulting from formalized dialogues, such as custodial interrogation.” Williams, 132 S.Ct. at 2260 (quoting Michigan v. Bryant, 562 U.S. 344, 379, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011)) (internal quotation marks omitted). The report here is nontestimonial under either the “primary purpose” test espoused by the Williams plurality or the “solemnity” test of Justice Thomas. ¶ 49 Informed by Williams, this Court has held that an autopsy report is nontestimonial when created to determine the manner and cause of death to aid in apprehending a suspect at large, rather than gathering evidence for prosecution of a known suspect. Medina, 232 Ariz. at 406 ¶ 62, 306 P.3d at 63. Because the autopsy report here was created for the very purpose espoused in Medina, we conclude it is nontestimonial and thus Dr, Keen’s testimony did not violate the Confrontation Clause. ¶50 In addition to Medina’s holding regarding nontestimonial reports, this Court has held that a testifying medical examiner may offer an opinion based on the autopsy performed by a non-testifying expert without violating the Confrontation Clause so long as the examiner testifies as to his or her own conclusions, is subject to cross-examination, and the report is not admitted into evidence. State v. Joseph, 230 Ariz. 296, 298 ¶¶ 8-9, 283 P.3d 27, 29 (2012); see also State v. Smith, 216 Ariz. 221, 228 ¶ 23, 159 P.3d 531, 538 (2007) (“Expert testimony that discusses reports and opinions of another is admissible ... if the expert reasonably relied on these matters in reaching his own conclusion.”); State v. Snelling, 225 Ariz. 182, 187 ¶¶ 19-21, 236 P.3d 409, 414 (2010) (holding no Confrontation Clause violation occurred because the medical examiner testified that she formed her own opinions after reading the autopsy report, was confronted and cross-examined about her opinions, and the autopsy report was not admitted into evidence). ¶ 51 Because the autopsy repoi*t was non-testimonial and Dr. Keen’s testimony complied with our case law, counsel had no reason to object, Thus, we need not address whether refraining from objecting to the testimony prejudiced Pandeli. 9. Allowing testimony of Humphreys’ sister ¶ 62 The PCR court found that “allow[ing] family of prior victim to testify” constituted a colorable claim of IAC, but made no specific findings on this point. The only member of Humphreys’ family who testified was her sister. Defense counsel objected to this testimony by unsuccessfully mov ing to preclude it. Therefore, defense counsel was not deficient on this point. 10. Failure to effectively cross-examine Chris Pandeli ¶ 53 During the penalty phase, Pandeli’s half-brother, Chris, described Pandeli’s behavior and alcohol consumption at a bar the night of Ileris murder and the night after. He also testified that Pandeli claimed to have once stabbed a black female hitchhiker and that Pandeli called Chris after his arrest and admitted to killing Iler and a black woman. Although defense counsel briefly cross-examined Chris, she did not ask whether Chris had any bias or motive for testifying against Pandeli. The PCR court found that defense counsel’s failure to bring out Chris’s “extremely prejudicial” biases on cross-examination constituted IAC. ¶ 54 At the PCR hearing, Shriver testified that he and Sinclair interviewed Chris before trial and were aware that he hated Pandeli and had no problems with a death sentence. Shriver testified that he and Sinclair specifically discussed and determined that a lengthy cross-examination of Chris would not be beneficial, but also that doing so would open the door to him letting the jury see his real feelings about Pandeli. Shriver also stated that he did not want to give Chris the opportunity to “vent,” because he believed that Chris’ testimony would not be “important to the jury based on what they’d already heard,” and did not want to allow “another opportunity for somebody to get up and say bad stuff about [Pandeli].” Sinclair also recalled being aware that Chris blamed Pandeli for their father’s health and financial problems and remembered that he possessed some sort of damaging information. Therefore, because Chris was not seen as a “key witness” and had information “that was more damaging than any cross could fix,” defense counsel decided not to subject him to a lengthy cross-examination. ¶ 55 Defense counsel’s decision not to extensively cross-examine Chris Pandeli was strategic and “reasonable considering all the circumstances.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. The PCR court erred by granting relief on this issue. 11. Failure to request instruction on all mitigating factors ¶ 56 Defense counsel presented twelve categories of non-statutory mitigating circumstances to the jury encompassing at least eighty-three individual factors. Michael Reeves, Pandelli’s “Strickland expert,” testified that defense counsel should have asked for instructions on each of the individual mitigators rather than grouping them into twelve categories. The PCR court agreed, finding that defense counsel was ineffective by failing “to present individual mitigating factors for Mr. Pandeli” and “[i]nstead ... submitting] general categories of mitigators to the jury.” ¶ 67 Counsel testified that he intended to present mitigating evidence as a general outline rather than as an exhaustive list of individual mitigators. Additionally, the jury was instructed that it could consider any factor as mitigation. The decision to organize mitigating evidence in tins fashion was a strategic decision that is well within the boundaries of reasonable representation required by Strickland. ¶ 58 To the extent the PCR court suggested that counsel’s decision violated Pandeli’s Eighth Amendment rights, we disagree. The Eighth Amendment does not require a capital jury to be instructed on specific mitigating factors. State v. Johnson, 212 Ariz. 425, 437-38 ¶¶ 44-47, 133 P.3d 735, 747-48 (2006) (citing Buchanan v. Angelone, 522 U.S. 269, 270, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998)). The jury was instructed that it “must consider and give effect to all mitigating circumstances that have been raised by any aspect of the evidence.” We presume that jurors follow the court’s instructions. Newell, 212 Ariz. at 403 ¶ 68, 132 P.3d at 847 (2006). The instruction satisfies Buchcman and counsel’s presentation neither violated Pandeli’s Eighth Amendment rights nor constitutes IAC. 12. Ineffective mitigation presentation ¶ 59 An issue that was not raised in the PCR petition, yet was determined by the PCR court to constitute IAC, was that the mitigation presentation was deficient. The PCR court did not make any findings or conclusions directly on this point. However, the court did find that the mitigation specialist, Barb Bumpus, had never worked on a capital case and was not qualified to do so; the Legal Defender’s Office restricted counsel’s ability to perform mitigation; and counsel had no supervisory authority over mitigation personnel. ¶ 60 Although both Shriver and Sinclair testified that the mitigation specialist was unqualified, defendants do not have a stand-alone right to a mitigation specialist. See Phillips v, Bradshaw, 607 F.3d 199, 207-08 (6th Cir. 2010) (“[H]iring a mitigation specialist in a capital case is not a requirement of effective assistance of counsel.”); State v. Herring, 142 Ohio St.3d 165, 28 N.E.3d 1217, 1239 ¶ 113 (2014) (holding defendant had no “constitutional right to a mitigation specialist or a right to an effective one”). To determine whether counsel provided ineffective assistance in this regard, the question is not whether the mitigation specialist was unqualified, but rather whether counsel fully investigated the defendant’s background. See Wiggins v. Smith, 539 U.S. 510, 524-25, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). ¶ 61 Indeed, Shriver testified that he was aware of Wiggins and that he conducted a full investigation of Pandeli’s mitigation. Pandeli has not established that defense counsel failed to meet their obligation to fully investigate his background, nor does he establish that defense counsel failed to adequately present mitigation to the jury. The PCR court erred by granting relief on this ground. 13. Inexperience of co-counsel Sinclair ¶ 62 Although not raised in the PCR petition, the PCR court found that Sinclair’s “inexperience ... w[as] proven by a preponderance of the evidence.” That determination was based on Sinclair’s testimony that she “had never done a trial, not even a misdemeanor.” Therefore, the court found that “deficits in the Petitioner’s defense ... were the result of inexperienced counsel and unprofessional judgment,” which was caused because “counsel lacked the fundamental requisite understanding of the requirements for conducting a capital defense.” ¶ 63 At the time of trial, Shriver was an experienced criminal defense attorney who had been involved in capital cases. Shiiver was aware of Sinclair’s relative inexperience, but obtained this Court’s consent to appoint Sinclair. See Ariz. R. Crim. P. 6.8(d) (Supreme Court may consent to appointment if “attorney’s experience, stature and record enable the Court to conclude that the attorney’s ability significantly exceeds the standards set forth in [Arizona Rule of Criminal Procedure 6.8]” and “attorney associates with himself or herself a lawyer who does meet the standards set forth in [Rule 6.8]”). He stated that Sinclair was not a “newbie, as far as [her] experience in relation to capital stuff’ because she had previously “worked ... on a capital case PCR at length.” Shriver believed that Sinclair’s prior experience, “intellect, [and] her desire” qualified her to be a part of the defense team under the guideline standards at the time. At the PCR hearing, Shriver testified that even today he “would not try to get Ms. Sinclair taken off a case,” and that “[s]he’s wonderful. She might demean[] her abilities, but she’s a dam good attorney.” ¶ 64 The relative inexperience of a second-chair defense attorney in capital trials does not in itself constitute IAC, especially when the first-chair attorney, like Sinclair, was experienced. Indeed, “[defendants facing the death penalty do not have a per se constitutional right to the assistance of two attorneys.” State v. Hester, 324 S.W.3d 1, 35 (Tenn. 2010); see also Bell v. Watkins, 692 F.2d 999, 1009 (5th Cir. 1982) (“Although Mississippi courts may customarily appoint two lawyers in a capital case, the Constitution dictates no such requirement.”); Smith v. State, 445 So.2d 227, 230 (Miss. 1984) (holding that the constitution does not require the appointment of two attorneys for indigent capital defendants). This is reiterated in Committee Comment to Rule 6.8,' which only recommends co-counsel in capital cases, but does not require multiple attorneys. Ariz. R. Crim. P. 6.8 cmt. (“The committee recommends that co-counsel be appointed at all stages of capital litigation.”). Here, having a second lawyer with criminal defense and some capital case experience was of benefit to Pandeli, and the court did not tie her relative inexperience to tangible adverse consequences. The court erred by granting relief on this ground. 14. Failure to adequately conduct voir dire ¶ 65 The PCR court found defense counsel deficient for “fail[ing] to conduct voir dire of the jury.” Specifically, the court found that counsel did not “ask about the prejudices and to ask specific questions, such as would you automatically give the death penalty to somebody, who has been convicted of a murder, such as in this case of a sexually charged murder?” The record does not support the court’s conclusion. ¶ 66 Although Sinclair had no experience selecting juries, lead counsel Shriver had experience selecting juries in non-capital cases. Shortly after Ring v. Arizona, 586 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Shri-ver attended a one-day seminar on jury selection for capital cases. Shriver also testified that he positioned staff throughout the courtroom to listen to the questions presented at voir dire, write down the jury panels’ responses, and attempt to rate prospective jurors. ¶ 67 Counsel also filed motions to “life qualify” the jury and establish the scope of voir dire, and submitted a proposed question-name. In fact, the State objected to two questions counsel proposed—whether the listed types of murder (including “serial murders”) are appropriate for the death penalty and one that had the proposed jurors indicate from a list of circumstances which they could consider as a basis for imposing a life sentence instead of a death sentence. Prospective jurors were also told that Pandeli had committed a prior second-degree murder before he murdered Iler and were asked whether they were “going to have problems getting past the fact that this is a second murder.” They were also asked whether they would consider various categories of mitigation relevant to Pandeli. ¶ 68 Pandeli did not carry his burden of proving that counsel’s voir dire was deficient under the Strickland standard. Counsel performed competent voir dire in support of their strategy, explained by Shriver at the PCR hearing. Counsel employed a multifaceted voir dire strategy that was not demonstrably incompetent. See Hovey v. Ayers, 458 F.3d 892, 910 (9th Cir. 2006) (“Although counsel’s decision not to question prospective jurors more extensively may seem a questionable decision in hindsight, it was guided by a reasonable strategy and was not deficient performance.”). We focus not on relative experience in this regard, but rather actual performance, which Pandeli has not demonstrated was ineffective. See, e.g., LaGrand v. Stewart, 133 F.3d 1253, 1275 (9th Cir. 1998) (“[I]t is not the experience of the attorney that is evaluated, but rather, his performance.”); State v. Chapman, 120 Idaho 466, 816 P.2d 1023, 1026 (Idaho Ct. App. 1991) (“Mere inexperience of counsel is not a sufficient basis for a claim of ineffective assistance, such claim must succeed or fail on counsel’s performance, not his level of experience.”). 15. Cumulative effect of IAC ¶ 69 This Court has not recognized the cumulative error doctrine for IAC claims as it has for prosecutorial misconduct claims. In State v. Hughes, this Court stated: At the outset, we need to clarify Arizona’s position regarding the cumulative error doctrine in criminal cases. Our general rule has been stated several times over the years, and was recently stated in State v. Dickens, 187 Ariz. 1, 21, 926 P.2d 468, 488 (1996), as follows: “[T]his court does not recognize the so-called cumulative error doctrine.” See also State v. Roscoe, 184 Ariz. 484, 497, 910 P.2d 635, 648 (1996); State v. White, 168 Ariz. 500, 508, 815 P.2d 869, 877 (1991). This lack of recognition is based on the theory that “something that is not prejudicial error in and of itself does not become such error when coupled with something else that is not prejudicial error.” Roscoe, 184 Ariz. at 497, 910 P.2d at 648.... We reiterate the general rule that several non-errors and harmless errors cannot add up to one reversible error. We also clarify the fact that this general rule does not apply when the court is evaluating a claim that prosecutorial misconduct deprived defendant of a fair trial. 193 Ariz. 72, 78-79 ¶25, 969 P.2d 1184, 1190-91 (1998). ¶ 70 Ninth Circuit decisions establish that the cumulative effect of deficiencies may support a finding of prejudice, even when no single instance of IAC meets the prejudice standard. See Boyde v. Brown, 404 F.3d 1169, 1176 (9th Cir. 2006) (“We must analyze each of his claims separately to determine whether his counsel was deficient, but prejudice may result from the cumulative impact of multiple deficiencies.”); Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir. 1992) (“We do not need to decide whether these deficiencies alone meet the prejudice standard because other significant errors occurred that, considered cumulatively, compel [a granting of relief].”). But see Fisher v. Angelone, 163 F.3d 836, 862 (4th Cir. 1998) (“Having just determined that none of counsel’s actions could be considered constitutional error ... it would be odd ... to conclude that those same actions, when considered collectively, deprived [defendant] of a fair trial.”) Citing the Ninth Circuit cases, Pandeli argues that, even if this Court does not find deficient performance on any one individual issue, the multiple instances of IAC have cumulatively prejudiced him under Strickland. ¶ 71 Regardless of whether the cumulative error doctrine should be recognized in this context, the record shows no aggregate IAC occurred here. It may be that multiple instances of non-prejudicial actions deemed inadequate by the defendant, viewed collectively, amount to IAC. Here, however, all of the conduct at issue was within the requisite bounds of competence. Although in hindsight counsel may have done certain things differently, their decisions all were grounded in reason or strategy and were not shown to be the product of ineptitude, inexperience, or lack of preparation. As a result, there is no cumulative error. ¶72 Because the actions and decisions complained of are within the bounds of professional competence, we do not need to determine whether they prejudiced Pandeli. State v. Salazar, 146 Arte. 540, 541, 707 P.2d 944, 945 (1985). We reverse the PCR court’s conclusion that Pandeli received inadequate representation. The cumulative decisions about which Pandeli complains do not amount to IAC. B. Due Process Issue ¶ 73 The PCR court likewise erred in finding a due process violation based on testimony by the State’s medical expert, Dr. Bayless, that Pandeli malingered during his cognitive tests and suffered only from an antisocial disorder rather than serious mental illness. Specifically, the PCR court found: Defendant’s [sic] have a right to a fair sentencing procedure which includes the right to be sentenced on the basis of accurate information,' which basic tenet was violated at this resentencing. Defendant, it is clear, suffers from a serious mental illness (cerebral dysfunction and impaired frontal lobes) but the jury was told he had an anti-social personality disorder and was a malingerer. ¶ 74 The PCR court implied that the jury must be given only objectively accurate expert testimony and that the court is the arbiter of that accuracy. It is a tall order to establish that expert opinions are objectively “inaccurate” and even taller to establish they are so wrong that merely asserting them makes a sentencing procedure so unfair as to violate due process. See State v. Goudeau, 239 Ariz. 421, 443 ¶50, 372 P.3d 945, 967 (2016) (“Generally a defendant’s due process rights are sufficiently protected by the opportunity to cross-examine the state’s expert regarding the validity of the testing procedures.”). We note that opinion testimony often includes subjective components, and good faith disagreements among credible experts are not unusual and do not necessarily amount to a due process violation. See In re Richards, 65 Cal.4th 948, 150 Cal.Rptr,3d 84, 289 P.3d 860, 872 (2012). To the contrary, they are the core of our adversarial process. ¶75 The PCR court relied on United States v. Tucker, 404 U.S. 443, 446-47, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), and State v. Grier, 146 Ariz. 511, 516, 707 P.2d 309, 314 (1985) for support that Pandeli’s due process rights were violated by Dr. Bayless’s testimony. But Tucker and Grier dealt with objectively erroneous facts rather than subjective opinions given by an expert, and are not applicable. See Tucker, 404 U.S. at 447, 92 S.Ct. 589 (trial court relied on three prior convictions in imposing sentence but two convictions were invalid); Grier, 146 Ariz. at 515-17, 707 P.2d at 313-15 (sentencing court and examining doctors relied on a presen-tence report that included an erroneous rap sheet). ¶76 The circumstances here are distinguishable from Tucker and Grier, The PCR court did not find that Dr. Bayless relied on any inaccurate facts to arrive at his opinions; the court simply disagreed with those opinions. However, a defendant’s due process rights are not violated by a good-faith “battle of the experts.” That Pandeli’s experts disagreed with Dr. Bayless’s diagnosis merely goes to the weight and credibility of Dr. Bayless’s opinion, matters reserved for the fact-finder’s consideration and determination. See State v. Romero, 239 Ariz. 6, 12 ¶ 27, 365 P.3d 358, 364 (2016) (“[W]e have recognized that a trial court’s admission of disputed expert testimony leaves to the fact-finder the role of assessing its weight and credibility.”); see also State v. Lajeunesse, 27 Ariz.App. 363, 368, 555 P.2d 120, 125 (1976) (finding that disputed facts in the ease “were either not relied upon by [the expert] in reaching his opinion, or were immaterial to his opinion, or were legitimately contested facts and evidence ... that supported [the expert’s] version,” and that the trial court properly left it to the jury to assign weight to that testimony). An expert’s opinion is not “false” merely because another expert—or the court—disagrees with it. To hold otherwise would destroy any trial process involving conflicting expert opinions and improperly substitute judge for jury. ¶ 77 Pandeli argues his due process rights were violated not because there was a disagreement between each party’s experts but because the other experts “demonstrated that crucial portions of Bayless’s testimony were either significantly misleading to the jury, based on incorrect application or interpretation of established psychological principles, or were outright false.” Pandeli claims Dr. Bayless misled the jury by testifying that Pandeli was malingering and that Zoloft and Prozac have no application in the treatment of Attention Deficit Hyperactivity Disorder (“ADHD”), and by conflating Antisocial Personality Disorder with psychopathy. This argument fails because Pandeli has provided no objective evidence that Dr. Bayless’s testimony was false or misleading. ¶ 78 Dr. Bayless did not present objectively false or misleading testimony that he believed Pandeli was malingering during his evaluation. Pandeli cites Dr. Weinstein’s testimony at the PCR hearing for support that Dr. Bayless’s testimony was “unmoored from any factual, scientific basis,” and “[s]uch un-correeted, unscientific testimony from an expert witness created at a minimum a grave risk that the sentencing jury was misled.” However, Dr. Weinstein testified that Dr. Bayless did not use any tests that directly measured effort, which brought him to the conclusion that “if you don’t have any objective way of finding out whether they are or [are] not making any good effort, then it is very difficult to say based on X.Y.Z., I think he is or he is not malingering.” Dr. Weinstein did not state that Dr. Bayless was objectively wrong, but rather that it would be difficult to determine whether Pandeli was malingering without specific tests designed to determine effort. This is a difference of opinion between two experts and does not violate Pandeli’s due process rights. ¶ 79 Nor did Dr. Bayless present objectively false or misleading testimony when he stated that Zoloft and Prozac have no application for treatment of ADHD. Pandeli cites Dr. Jones’s testimony at the PCR hearing for support that Dr. Bayless’s conclusion that Zoloft and Prozac have no application for treatment of ADHD was false. However, Dr. Jones’s only analysis on the subject was the general conclusion “[t]hat [it] is not true” that the medications did not have any application for treatment for ADHD. No other evidence was presented on this subject. In short, one expert stated the medications had no application for the treatment of ADHD and another said they do. It was up to the jurors to determine which expert’s testimony they believed and chose to accept, See Lajeunesse, 27 Ariz.App. at 368, 555 P.2d at 125. This too was merely a difference of opinion between two experts and does not constitute a violation of Pandeli’s due process rights. ¶ 80 Finally, Dr. Bayless did not present objectively false or misleading testimony when he discussed Antisocial Personality Disorder and psychopathy. Pandeli relies on Dr. Jones’s testimony at the PCR hearing that Dr. Bayless incorrectly conflated the two disorders at trial, and thus presented false and misleading testimony to the jury. However, this is not supported by the record. When Pandeli’s PCR counsel asked Dr. Jones, “So it sounds like you are saying [Dr. Bayless’s] diagnosis of Mr. Pandeli with antisocial personality disorder was incorrect, based on what he did?” Dr. Jones only replied, “Well, there’s an inconsistency in the testimony and with the statement that Dr. Bayless presented and the diagnosis that he presented.” This again reflects a difference of opinion between two experts and does not constitute a violation of Pandeli’s due process rights. CONCLUSION ¶ 81 For the foregoing reasons, we reverse the ruling of the PCR court and reinstate Pandeli’s death sentence. . Neither Gary Shriver nor his co-counsel, Dawn Sinclair, represented Pandeli at his first trial. Dr. Bayless testified during the penalty phases at both of Pandeli's trials.

VICE CHIEF JUSTICE PELANDER, opinion of the Court: ¶ 1 Under A.R.S. § 12-510, claims by governmental entities generally are not barred by statutes of limitations. For actions relating to real property, however, Arizona’s statute of repose provides that, “notwithstanding any other statute,” an action “based in contract” against certain identified parties must be filed within “eight years after substantial completion of the improvement of real property.” A.R.S. § 12-552(A). We hold that governmental entities’ contract-based actions (including claims for indemnification) that fall within § 12-552(A) are subject to that statute’s proscription, notwithstanding § 12-510 or the common law doctrine known as “nul-lum tempus occurit regi” (time does not run against the king). For the contractors in this case having the requisite contractual relationship with the City of Phoenix, we hold that the statute of repose applies; but for the developers whose only relationship with the City is as permittees, the statute of repose does not apply. I. ¶ 2 The superior court dismissed the City of Phoenix’s indemnity claims under Arizona Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. On review, therefore, we “assume the truth of all well-pleaded factual allegations” in the City’s pleading and “indulge all reasonable inferences from those facts.” Coleman v. City of Mesa, 280 Ariz. 352, 356 ¶ 9, 284 P.3d 863, 867 (2012); see also Watts v. Medicis Pharm. Corp., 239 Ariz. 19, 22 ¶ 2, 365 P.3d 944, 947 (2016). ¶ 3 In 2013, Carlos Tarazón sued the City and numerous co-defendants after he developed mesothelioma, allegedly resulting from long-term exposure to asbestos while installing and repairing water piping for the various defendants. (After Tarazón died in 2014, the personal injury action was converted to one for wrongful death.) The City filed a third-party complaint against eighty-two developers (the “Developers”) and eight contractors (the “Contractors”), alleging that they had agreed to defend and indemnify the City against negligence claims arising from the construction projects on which Tarazón worked. ¶ 4 The City alleged that the Contractors separately contracted with it to perform certain water infrastructure projects between 1960 and 2000. The contracts include a provision stating, “[t]he Contractor agrees to indemnify and save harmless the City of Phoenix ... from all suits, including attorneys’ fees and cost of litigation ... of any character or any nature arising out of the work done in fulfillment of the terms of this contract.” ¶5 The Developers undertook their own water-system projects, but only after applying for and obtaining right-of-way permits from the City, as required by Phoenix City Code § 31-35. As permittees, the Developers were subject to Phoenix City Code § 31-^0, which provides: The permittee agrees to indemnify and save harmless the City of Phoenix ... from all suits ... arising out of or in connection with any act or omission of the permittee, his agents and employees, and of any subcontractor ... which results directly or indirectly in the injury to or death of any person or persons.... ¶ 6 The permits also incorporated the Developers’ project plans and specifications, which included the Maricopa Association of Governments Specifications (the “MAGS”). The MAGS obligated the Developers to “at all times observe and comply with all such laws, ordinances, regulations, codes, orders, and decrees.” By incorporating the MAGS, the permits memorialized the Developers’ preexisting obligation to comply with the City’s laws, including City Code § 31-40. ¶ 7 The Developers and Contractors moved to dismiss the City’s third-party claims under Rule 12(b)(6), arguing that those claims were based in contract and barred by the eight-year statute of repose in § 12-552(A). The City responded that the statute does not apply to the state’s political subdivisions and that the Developers’ indemnity obligation was not based in contract but instead arose under City Code § 31-40. The superior court rejected those arguments, ruled that § 12-652(A) applied to bar the City’s claims, granted the motion to dismiss, and certified its decision as final under Arizona Rule of Civil Procedure 64(b). ¶ 8 The court of appeals affirmed, holding that the City’s indemnity claims are “time-barred” because “A.R.S. § 12-562 applies to governmental entities and ... the City’s claims are based in contract within the meaning of A.R.S. § 12-552(F).” City of Phoenix v. Glenayre Elec., Inc., 240 Ariz. 80, 82-83 ¶ 1, 375 P.3d 1189, 1191-92 (App. 2016). The court concluded that the phrase “[notwithstanding any other statute” in § 12-552(A) plainly and “explicitly renders inapplicable the nullum tempus doctrine reflected in A.R.S. § 12-510.” Id. at 84-85 ¶ 11, 375 P.3d at 1193-94. The court also agreed with the superior court that the Developers’ permits contractually obligated them to indemnify the City, and thus the City’s indemnity claims were based in contract and subject to § 12-552(A). Id. at 87 ¶ 18, 88 1122, 375 P.3d at 1196, 1197. We granted review because application of the statute of repose to governmental entities and interpretation of § 12-552(F) are issues of statewide importance that are likely to recur. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and AR.S. § 12-120.24. II. ¶ 9 We review the superior court’s dismissal of claims under Rule 12(b)(6) de novo, as we do the interpretation of statutes. Watts, 239 Ariz. at 23 ¶ 9, 365 P.3d at 948. A. ¶ 10 Arizona case law has consistently recognized the common law doctrine “nullum tempus occurrit regí”—time does not ran against the king. See, e.g., Kerby v. State ex rel. Frohmiller, 62 Ariz. 294, 307, 157 P.2d 698, 704 (1945) (noting the established rale that statutes of limitations “do not run or operate against the state”); City of Bisbee v. Cochise County (Bisbee III), 52 Ariz. 1, 9, 78 P.2d 982, 985 (1938) (finding “ample justification for the rule, stated in the ancient maxim and confirmed by our Legislature from time to time, that statutes of limitations which govern between private individuals do not apply in proceedings on behalf of the state”). The doctrine is based on the premise that, although time limitations apply to private parties so as to prevent fraudulent, stale claims, time stands still, as it were, for the state because “[t]he officers who are charged with the active duty of enforcing [the] rights [of the state] have no personal profit to gain thereby, and therefore no inducement for the bringing of false and unwarranted actions.” Bisbee III, 52 Ariz. at 9, 78 P.2d at 985. ¶ 11 In Bisbee III, this Court held, in the last of three opinions in that case, that the nullum tempus doctrine generally “applies not only to the state itself when suing in its own name, but to all of its subdivisions,” including municipalities acting with a public purpose to recover tax-related monies. Id. at 18, 78 P.2d at 989. In that case, Bisbee sued Cochise County to recover certain penalties and fees on delinquent taxes collected by the county but allegedly owed to the city. Id. at 3, 78 P.2d at 983. In defense, the county unsuccessfully argued that the city’s claim was time-barred by a general statute of limitations requiring actions “[ujpon a liability created by statute” to be commenced within one year after the cause of action accrued. City of Bisbee v. Cochise Cty., 44 Ariz. 233, 243, 36 P.2d 559, 563 (1934) (quoting Ariz. Rev. Code § 2058(3) (1928), now AR.S. § 12-541(5)). On a second appeal after the case was remanded and tried, this Court again rejected the county’s statute-of-limitations defense against the city’s attempted collection of tax revenues, finding the nullum tempus doctrine applied “unless the Legislature has expressly permitted such a [defense].” City of Bisbee v. Cochise Cty., 50 Ariz. 360, 369, 72 P.2d 439, 443 (1937). In Bisbee III, on which the City here primarily relies, we confirmed that the nullum tempus doctrine generally applies to municipalities and therefore denied the petition for rehearing. 52 Ariz. at 18, 78 P.2d at 989. ¶ 12 For well over a century, our state’s common law and statutes on this subject have overlapped. Even before statehood, Arizona’s territorial legislature codified the nul-lum tempus doctrine. See Rev. Stat. Ariz. Territory § 44-2306 (Sec. 10) (1887). And as this Court observed in Bisbee III, the doctrine “has been re-enacted by our Legislature every time it has recodified the law.” 52 Ariz. at 8, 78 P.2d at 985. ¶ 13 Entitled “Exemption of state from limitations,” A.R.S. § 12-510 is the most recent codification and states: “Except as provided in § 12-529, the state shall not be barred by the limitations of actions prescribed in [chapter 5 of Title 12].” The exception found in § 12-529, relating to actions involving public trust lands and navigable watercourses, is not applicable here. But directly at issue is another provision in chapter 5 of Title 12, the statute of repose, which states in part: Notwithstanding any other statute, no action or arbitration based in contract may be instituted or maintained against a person who develops or develops and sells real property, or performs or furnishes the design, specifications, surveying, planning, supervision, testing, construction or observation of construction of an improvement to real property more than eight years after substantial completion of the improvement to real property. AR.S. § 12-552(A). Added by the legislature in 1989, this statute defines a substantive right limiting the “indeterminable period of liability exposure” faced by those engaged in development and construction activities traditionally. Albano v. Shea Homes Ltd. P’ship, 227 Ariz. 121, 126, ¶ 19, 127 ¶ 26, 254 P.3d 360, 365, 366 (2011). ¶ 14 The subject construction projects on which Mr. Tarazón worked were completed more than eight years before the City filed its third-party complaint. The statute of repose in § 12-552(A) applies, then, unless the City is exempt from that provision. Based largely on Bisbee III, the City argues that the statute of repose does not apply to it and thus cannot bar its indemnity claims. In Bis-bee III, this Court acknowledged the then-applicable predecessor statute to § 12-510 (Ariz. Rev. Code § 2056 (1928)) and remarked that the statute “does not add to [ ]or subtract from the common-law rule, but is merely a legislative recognition and approval thereof.” 52 Ariz. at 8, 78 P.2d at 986. We also observed that “statutes of limitations do not and should not apply to the state, in the absence of an express declaration to the contrary by the Legislature,” id. at 8-9, 78 P.2d at 985, that is, “unless the Legislature has expressly and definitely declared that they do.” Id. at 10, 78 P.2d at 985. ¶ 15 Relying on that language in Bisbee III, the City argues that the legislature has not “expressly and definitely declared” that § 12-552(A)’s limitation applies to governmental entities and, absent such an expression, the City is not bound by that statute. According to the City, the legislature could have met that standard in either of two ways, but did neither. First, the legislature could have expressly provided in § 12-510 an exception for § 12-552, just as § 12-510 does for § 12-529. Or second, the legislature could have expressly declared in § 12-552 that the state and its political subdivisions are subject to its provisions. Cf. State ex rel. Condon v. City of Columbia, 339 S.C. 8, 528 S.E.2d 408, 412 (2000) (stating that “the Legislature abandoned the nullum tempus doctrine long ago” by statutorily providing “‘the limitations prescribed in this chapter ... shall apply to actions brought in the name of the State”’); see also AR.S. § 12-529 (stating that “any action brought by this state .., based on a claim of navigability of any watercourse ... is subject to all legal and equitable defenses which would be available if the claimant were not this state”). ¶ 16 Although the legislature could have followed one of the avenues the City identifies, it was not required to do so to apply the statute of repose to all parties, including the state. Section 12-552(A)’s introductory phrase, “[notwithstanding any other statute,” makes clear that the statute of repose controls over other, potentially conflicting state laws. By using that phrase in § 12-552(A), the legislature “has expressly and definitely declared” that the statute of repose controls over § 12-510’s general exemption of governmental entities from statutes of limitations, Bisbee III, 52 Ariz. at 10, 78 P.2d at 985; see State v. Jones, 232 Ariz. 448, 450 ¶ 11, 306 P.3d 105, 107 (App. 2013), vacated on other grounds by State v. Jones, 235 Ariz. 501, 334 P.3d 191 (2014) (noting that “the legislature has often used language such as ‘notwithstanding any other statute’ ... to indicate that a particular provision will trump any conflicting statutes”). We also note that the statute of limitations at issue in Bisbee III, unlike § 12-552, did not broadly apply “notwithstanding any other statute,” see supra ¶11. ¶ 17 The City, however, asserts that the phrase “[notwithstanding any other statute” “is inherently generic” and “does not expressly and specifically limit the government’s rights.” But the word “any” is “broadly inclusive.” City of Phoenix v. Tanner, 63 Ariz. 278, 280, 161 P.2d 923, 924 (1945); see also United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) (“Read naturally, the word ‘any' has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’”) (quoting Webster’s Third New International Dictionary 97 (1976)); Mapoy v. Carroll, 185 F.3d 224, 229 (4th Cir. 1999) (interpreting the word “any” to mean “all” when used in the phrase “notwithstanding any other provision of law”); United States v. Fernandez (Appeal of US. by Atty. Gen.), 887 F.2d 465, 468 (4th Cir. 1989) (explaining the provision “notwithstanding any other provision oí law ... naturally means” the provision “should not be limited by other statutes”). ¶ 18 In addition, the word “notwithstanding” means “without prevention or obstruction from or by; in spite of.” Premier Car Rental, Inc. v. Gov’t Emps. Ins. Co., 223 A.D.2d 629, 637 N.Y.S.2d 177, 178-79 (1996) (quoting Notwithstanding, Webster’s Third New International Dictionary 1545 (Sd ed. 1961)). Thus, the limitation in § 12-552(A) applies broadly and inclusively to all other statutes. Like the United States Supreme Court, we do not require the legislature “to employ magical passwords” to accomplish its manifest intent. Marcello v. Bonds, 349 U.S. 302, 310, 75 S.Ct. 757, 99 L.Ed. 1107 (1955) (concluding that a deportation statute’s “sole and exclusive procedure” expressly superseded a different procedure under the Administrative Procedure Act even though the statute did not mention the Act, which required any modifications to its procedure to be express). ¶ 19 The history of the pertinent statutes supports our conclusion that § 12-552 overrides § 12-510’s general provision exempting the state from limitations of actions. As noted above, § 12-510 and its predecessor territorial and state statutes date to the late 1800s. Against that longstanding backdrop, the legislature enacted § 12-552, including its “[notwithstanding any other statute” preface, in 1989. We presume that the legislature was aware that this more recent and specific statute, added to the same chapter in which § 12-510 appears, would effectively prevail over the former statute and govern actions and parties covered by the latter. Cf. Daou v. Harris, 139 Ariz. 353, 357, 678 P.2d 934, 938 (1984) (stating “we presume that the legislature, when it passes a statute, knows the existing laws”), ¶ 20 In addition, the legislature amended § 12-552 in 1992 by adding subsection (G). Under that amendment, subsection (A)’s eight-year limitation period begins to run on September 15,1989, for any “improvement to real property that was substantially complete on or before” that date. A.R.S. § 12-552(G). The history behind this amendment strongly suggests that the legislature recognized that § 12-552 otherwise time-barred the Central Arizona Water Conservation District (CAWCD) from bringing a nearly $150 million claim against parties that, according to the CAWCD, negligently constructed the underground piping for transporting water to central Arizona. See S. Fact Sheet (May 27, 1992), S.B. 1478, 40th Leg., 2d Reg. Sess. (Ariz. 1992). The legislative history convincingly reveals that the legislature added subsection (G) so that CAWCD could file its claims against the constructors within the eight-year time limit, See also Minutes of S. Comm, on Judiciary at 30-32 (April 7, 1992), 40th Leg., 2d Reg. Sess. (Ariz. 1992). ¶ 21 If, as the City asserts, § 12-552 neither applied to governmental entities such as CAWCD nor otherwise trumped § 12-510, the legislature (albeit the 1992 legislature, not the 1989 legislature that passed § 12-552) would not have needed to add subsection (G); that is, under the City’s view, subsection (G) would be superfluous because even without any amendment, CAWCD, as a political subdivision of the state, was already exempt from § 12-552. We agree with the court of appeals that this history “is particularly compelling.” Glenayre, 240 Ariz. at 86 ¶ 15, 375 P.3d at 1195. ¶22 The City alternatively argues that, separate and apart from § 12-510, the common law nullum tempus doctrine applies to exempt governmental entities from § 12-552. See A.R.S. § 1-201 (stating that the common law applies insofar “as it is consistent with .. and not repugnant to or inconsistent with the ... laws of this state”); Pleak v. Entrada Prop. Owners’ Ass’n. 207 Ariz. 418, 422 ¶ 12, 87 P.3d 831, 835 (2004) (“[I]f the common law is to be changed or abrogated by statute, the legislature must do so expressly or by necessary implication.”); Tucson Gas & Elec. Co. v. Schantz, 5 Ariz.App. 511, 515, 428 P.2d 686, 690-91 (1967) (concluding that a narrow statute regarding record inspections did not supersede the broader common law right to inspect corporate records and noting that “the mere fact that a statute partially codifies the common law does not necessarily abolish the remainder of the common law rule”). We are not persuaded by this argument. ¶ 23 This Court has observed that § 12-510 “is merely a partial codification” of the nullum tempus doctrine. State ex rel. Dep’t of Health Servs. v. Cochise Cty., 166 Ariz. 75, 77 n.3, 800 P.2d 578, 580 n.3 (1990). But that observation simply referred to “the fact that [§ 12-510] limits its provisions to statutes of limitations in ‘this chapter,’ referring to chapter 5, title 12.” Id.; see also Bisbee III, 52 Ariz. at 8, 78 P.2d at 985 (noting that § 12-510’s predecessor statute, which likewise referred to only “the limitations of actions prescribed in this chapter,” “does not add to [ ]or subtract from the common-law rule, but is merely a legislative recognition and approval thereof’). ¶ 24 Here, unlike the situation in Tucson Gas, the common law nullum tempus doctrine and the related statute (§ 12-510) do not differ in substance or scope. With respect to limitations in chapter 6 of title 12, the common law and § 12-510 are coterminous. See In re Diamond Benefits Life Ins. Co. v. Resolute Holdings, Inc., 184 Ariz. 94, 96, 907 P.2d 63, 65 (1995) (noting that the common law nullum tempus doctrine is codified in § 12-510); State ex rel. Conway v. Versluis, 58 Ariz. 368, 380, 120 P.2d 410, 416 (1941) (describing § 12-510’s predecessor statute as “merely a reenactment of the old common law”). Thus, for purposes of the limitation provisions in that chapter, the legislature’s “notwithstanding” clause in § 12-552(A), at the least, overrides not only § 12-510 but also by “necessary implication” its common law nullum tempus counterpart. Pleak, 207 Ariz. at 422 ¶ 12, 87 P.3d at 836. ¶ 25 Finally, the City cites several out of state cases in which courts applied the nul-lum tempus doctrine not only to statutes of limitations but also to statutes of repose. See, e.g., State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 54 A.3d 1005, 1022 (2012); Rutgers, State Univ. of N.J. v. Grad P’ship, 269 N.J.Super. 142, 634 A.2d 1053, 1054-55, 1056 (1993); Rowan County Bd. of Educ. v. U.S. Gypsum Co., 332 N.C. 1, 418 S.E.2d 648, 667 (1992). But unlike § 12-552, none of the statutes at issue in those cases stated they applied “notwithstanding any other statute” or contained other express language overriding the nullum tempus doctrine. Therefore, we find those cases inappo-site and in some tension with Albcmo’s differentiation between statutes of limitations and statutes of repose. 227 Ariz. at 127 ¶¶ 23-24, 254 P.3d at 366. In sum, the superior court and court of appeals did not err in concluding that § 12-552 applies to the City’s contract-based indemnity claims that fall within that statute’s scope, notwithstanding § 12-510 or the common law nullum tempus doctrine. B. ¶ 26 The City also argues that, contrary to the court of appeals’ opinion, its indemnity claims against the Developers are not “based in contract” within the meaning of § 12-552(A) and (P) and thus are not barred by that statute. We agree that dismissal of those claims under Rule 12(b)(6) was error. ¶ 27 The eight-year limitation in § 12-552(A) applies to an action “based in contract.” Subsection (F) defines the types of agreements that are “based in contract” and thereby limits the statute of repose to only those agreements. It states: “In this section an action based in contract is an action based on a written real estate contract, sales agreement, construction agreement, conveyance or written agreement for construction or for the services set forth in subsection A of this section.” The issue is whether the indemnification provision in Phoenix Code § 31-40 creates a contract or agreement contemplated in subsection (F). That indemnification provision under which the City’s claim against the Developers arises is not based on any of the agreements the legislature listed in subsection (F). Accordingly, the statute of repose does not bar the City from bringing its indemnity claims arising from Phoenix City Code § 31-40. ¶28 In ruling that § 12-552 barred the City’s claims against the Developers, the court of appeals stated, “[t]he nature of the instrument bearing the indemnification agreement ... is immaterial to whether a claim under the agreement is based in contract.” Glenaiyre, 240 Ariz. at 87 ¶ 17, 375 P.3d at 1196. The court noted the statute’s “broad” language and said it expressed “the legislature’s ... obvious intent to encompass any “written agreement ... for the services set forth in subsection A.’ ” Id. It then held that the permits required and issued by the City created a contractual relationship from which the City sought indemnification. Id. Based on the statutory language and the City Code, however, we reach a different conclusion. ¶29 As permittees, the Developers were subject to and governed by City Code § 31-40. See supra ¶6. The indemnity provision contained in that Code section is clearly not a “written real estate contract,” “sales agreement,” “construction agreement,” “conveyance,” or a “written agreement for construction.” § 12-552(F). The question, then, is whether the Code’s indemnity provision is a “written agreement .,. for the services set forth in subsection A.” (Emphasis added.) Interpreted broadly, “for” could mean “in respect to” or “concerning” the services. For, Webster’s Third New International Dictionary 886 (2002). Or, more narrowly, “for” could mean “with the purpose or object of,” in the sense of engaging such services. Id. ¶ 30 We are not persuaded that a broad interpretation of the word “for” applies here. Subsection (F)’s phrase, “written agreement ... for the services set forth in subsection A,” serves as a catch-all provision. Pursuant to the ejusdem generis rule, the phrase must be construed to refer to the same type of agreement as the enumerated agreements in subsection (F). See Bilke v. State, 206 Ariz. 462, 465 ¶ 13, 80 P.3d 269, 272 (2003) (quoting Black’s Law Dictionary 517 (6th ed, 1990), stating ejusdem generis applies “where general words follow the enumeration of particular classes of things”). The transactional nature of the other agreements listed in subsection (F) suggests that subsection (A) should apply to “breach of contract and implied warranty actions against developers, builders, and certain others.” Albano, 227 Ariz. at 126 ¶ 19, 254 P.3d at 365 (quoting Evans Withycombe, Inc. v. W. Innovations, Inc., 215 Ariz. 237, 239 ¶ 9, 159 P.3d 547, 549 (App. 2006)). In Albano, we also noted that “[t]he Legislature enacted § 12-552 to limit the ‘time period during which action may be brought against those engaged in the development or construction of real property and activity related to the construction of real property.’ ” Id. (quoting Ariz. State Senate, Fact Sheet for S.B. 1306, 39th Leg., 1st Reg. Sess. (Mar. 20, 1989)); cf. Flagstaff Affordable Housing Ltd. P’ship v. Design Alliance, Inc., 223 Ariz. 320, 329 ¶ 44, 223 P.3d 664, 673 (2010) (stating § 12-552 applies to actions “involving the design, engineering, or construction of improvements to real property”). ¶ 31 The real estate contract, sales agreement, and other listed agreements in subsection (F) are types of transactional agreements from which could arise the indeterminable liability that the legislature sought to prohibit for breach of contract and implied warranty actions. See Albano, 227 Ariz. at 126 ¶ 19, 254 P.3d at 365 (“Before § 12-552 was enacted, developers and builders faced an indeterminable period of liability exposure.”). Interpreting “for” broadly to mean “concerning” would extend the statute of repose far beyond such claims and could, for example, preclude most claims against a construction company; this is so because any contract necessarily used for the company’s internal or external operations would broadly “concern” the construction of real property, but would not be limited to “activities] related to the construction of real property.” Id. So interpreted, the word “for” would cause the statute to thwart the legislature’s manifest intent to limit indeterminable liability for breach of contract and implied warranty actions. Cf. Fry’s Food Stores of Arizona, Inc. v. Mather & Associates, Inc., 183 Ariz. 89, 91-92, 900 P.2d 1225, 1227-28 (App. 1995) (stating that the language of § 12-552(F) “may reasonably be construed as inapplicable to negligence actions among contracting parties”). ¶32 Moreover, if we interpret “for” to mean “concerning,” then the catch-all phrase would incorporate each of subsection (F)’s enumerated agreements, rendering their enumeration superfluous. See Fields v. Elected Officials’ Retirement Plan, 234 Ariz. 214, 218 ¶ 16, 320 P.3d 1160, 1164 (2014) (noting that the legislature generally avoids redundancy). The narrow interpretation of “for” avoids redundancy and encompasses all written agreements that have as their purpose engaging in the types of “services set forth in subsection (A),” such as developing, selling, or surveying property for construction projects. The narrow interpretation of “for” in subsection (F)’s catch-all phrase also parallels that subsection’s phrase, a “written agreement for construction,” which uses the word “for” to clearly mean “with the purpose or object of.” ¶ 33 The remaining question is whether Phoenix Code § 31-40 creates a written agreement for any of the services set forth in subsection (A). Although the court of appeals’ analysis and the Developers’ argument focus on the inclusion of the MAGS in the permits issued to the Developers, the City’s third-party complaint alleged that the Developers’ indemnity obligation arose from § 31-40 of the Code itself. See supra ¶5. The incorpo ration of the MAGS into the permit simply-memorialized a preexisting regulatory obligation. But even if the permit created a contractual relationship between the City and the Developers, as the court of appeals held, that would not preclude finding an independent indemnity obligation under the City Code. Cf. Unique Equip. Co., Inc. v. TRW Vehicle Safety Sys., Inc., 197 Ariz. 50, 55 ¶ 19, 3 P.3d 970, 975 (App. 1999) (recognizing “an independent statutory obligation to indemnify”). ¶ 34 Although we question whether § 31-40 could create a written agreement in the abstract, we need not resolve that issue in all respects. Cf. Proksa v. Arizona State Schools for the Deaf and the Blind, 205 Ariz. 627, 629 ¶¶ 11-12, 74 P.3d 939, 941 (2003) (iterating the “general principle” that “statutes do not create contract rights” because legislative “[policies, unlike contracts, are inherently subject to revision and repeal”) (internal quotation marks and citations omitted); Smith v. City of Phoenix, 175 Ariz. 509, 514, 858 P.2d 654, 659 (App. 1992) (declaring the same principle with respect to a city ordinance and concluding “the fact that both parties knew [the judge’s] salary was established by a city ordinance, which was naturally subject to change by the city council” suggested the absence of an employment contract). Rather, we conclude that the City Code, which applies solely based on an indemnitor’s status as a permittee, does not constitute a written agreement for the services listed in § 12-552(A). The City’s issuing a permit and the corresponding, independent indemnity obligation arising under Code § 31-40 do not create an agreement between the City and the Developers for either party to perform any of the services listed in subsection (A). Instead, the permit grants the Developers a license to enter Phoenix property to undertake their construction projects, see Phoenix City Code § 31-35; and § 31-40 provides a condition for the permit’s issuance. The Code’s indemnity provision in a very broad sense does “concern” a construction project. But the City did not offer or accept any of the services prescribed in subsection (A), such as developing or selling property or furnishing specifications for construction improvements. ¶ 35 Nor did an agreement for the services listed in subsection (A) arise merely because the Developers submitted their construction plans to the City as part of the permit application process, By reviewing those plans and issuing a permit, the City simply performed its legal duty to issue a right-of-way permit when the Developers satisfied all the relevant conditions. Cf. Vance v. Lassen, 82 Ariz. 188, 191, 310 P.2d 510, 512 (1957) (requiring the issuance of a permit when “there exists no legal excuse for non-issuance”); City of Tempe v. Baseball Facilities, Inc., 23 Ariz. App. 557, 561, 534 P.2d 1056, 1060 (1975) (determining the denial of a requested business permit may not be arbitrary and capricious). Issuance of a permit in compliance with law does not itself evidence an “agreement” between the City and the Developers “for the services set forth in subsection A [of § 12-552],” and neither the construction plans nor MAGS alter that conclusion. Accordingly, the superior court erred in finding § 12-552 applicable to the City’s indemnity claims against the Developers and dismissing those claims under Rule 12(b)(6). III. ¶36 We affirm the superior court’s dismissal of the City’s third-party, contract-based claims against the Contractors because neither § 12-610 nor the common law nullum tempus doctrine precludes application of § 12-552(A). We reverse the superior court’s dismissal of the City’s third-party claims against the Developers because the allegations in the City’s complaint do not establish that those claims are “based in contract” for purposes of § 12-552(A) and (P). Accordingly, we vacate those portions of the court of appeals’ opinion that concluded that the City’s indemnity claims against the Developers are “based in contract” and therefore subject to and barred by the statute of repose. We also vacate the superior court and court of appeals’ attorney fee awards to the Developers, without prejudice to their seeking fees should they ultimately prevail. We remand the ease to the superior court for further proceedings consistent with this opinion and express no view on the merits of the City’s remaining indemnity claims or on the potential recovery of attorney fees by the ultimate prevailing party or parties. Finally, because the City concedes that its indemnity claims against the Contractors arise from contract, the Contractors are awarded their reasonable attorney fees incurred in this Court pursuant to A.R.S. § 12-841.01, upon compliance with ARCAP 21, , The allegations in the City’s third-party complaint arguably could also be read as asserting a contractual indemnity claim against both the Contractors and Developers. However, we must accord all reasonable inferences to the City’s complaint, and in doing so, we conclude that the City has sufficiently pleaded an indemnity claim against the Developers arising from § 31-40 of the Code. See Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008) (explaining that courts "must assume the truth of the well-pled factual allegations and indulge all reasonable inferences therefrom"). If any further questions exist regarding the source or basis of the City’s indemnity claims against the Developers, they can be addressed on remand. . In its third-party complaint, the City alleged that it "issued right-of-way permits to the Developers and Contractors for the projects on which Mr. Tarazón allegedly worked," and that the City codes "require the permittee (the Developers) and the Contractors to indemnify Phoenix against injury and death claims arising out of the performance of the permitted work.” (Emphasis added.) But the City also alleged that, "[gjenerally, for the projects on which Mr. Tarazón allegedly worked, the right-of-way permits were issued to the Developers as 'permittees.' ” Despite the confusion, in this Court the City asserts Code-based indemnity claims against only the Develop ers, not the Contractors with which the City had separate contracts.

OPINION THUMMA, Judge: ¶ 1 Justin Mitton (Father) appeals from the superior court’s post-decree order modifying child support. Because child support was improperly calculated, the order is vacated and the issue of child support is remanded for further proceedings consistent with this opinion. FACTS AND PROCEDURAL HISTORY ¶ 2 Candice Mitton (Mother) and Father divorced by consent decree entered in 2013. The decree provided Mother and Father equal parenting time with them children, with Father paying Mother child support. Mother and Father currently have three minor children: a daughter, who is 17, and twin boys, who are 10. ¶ 3 Father later filed a petition to modify child support, which was addressed at an August 2015 evidentiary hearing. Mother and Father testified that, with their consent, their daughter was living with Mother full time, while the twins continued to have equal time with each parent. Because their daughter was living with Mother full time, Mother argued that Father needed to pay more child support. The court took the matter under advisement and directed counsel to file child support worksheets setting forth their positions. Mother filed two worksheets (one for their daughter living solely with Mother and one for the twins reflecting equal parenting time with Mother and Father). Father timely objected, arguing Mother’s worksheets overstated his child support obligation, and filed competing worksheets, including a combined worksheet for all three children. In a subsequent ruling, the court set child support in an amount calculated by adding together the two worksheets Mother had filed. ¶4 This court has jurisdiction over Father’s timely appeal from that ruling pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) and - 2101(A)(1) (2017). DISCUSSION ¶ 5 Father argues the superior court’s method of combining two separate child support worksheets “was not consistent with the Guidelines and resulted in a support award that far exceeded what is contemplated by the Guidelines.” This method, Father argues, resulted in a “clearly disproportionate increase” in his child support obligation. Father argues this method ignores that the Guidelines account for “the fact that some of the expenses associated with supporting a single child (such as providing housing) do not increase in equal proportion to the number of children in a family.” ¶ 6 Mother counters that the superior court did not err, citing an example in section 16 of the Guidelines, titled “Multiple Children, Divided Custody,” that uses separate worksheets and treats each child as an only child. See A.R.S. § 25-320 Appendix § 16. The example, however, assumes each parent has sole custody of at least one child—which is not the case here—making section 16 inapplicable. ¶ 7 How the Guidelines approach child support for unusual parenting time arrangements is a matter of law subject to de novo review. Hetherington v. Hetherington, 220 Ariz. 16, 21 ¶ 21, 202 P.3d 481 (App. 2008). The Guidelines are based on an “income shares model” in determining child support. Nash v. Nash, 232 Ariz. 473, 476 ¶ 7, 307 P.3d 40 (App. 2013). The income shares model “is based on two principles: (1) ‘The total child support amount approximates the amount that would have been spent on the children if the parents and children were living together,’ and (2) ‘Each parent contributes his/her proportionate share of the total child support amount.’ ” Id. (quoting Guidelines § 1 Background). ¶ 8 The parties have cited, and this court has found, no Arizona case addressing the issue presented here: how to calculate child support when one child lives with one parent full time, and parents share parenting time equally with at least one other child. For guidance, then, this court looks to cases in other states that use the “income shares model” upon which Arizona’s Guidelines are based. ¶ 9 Indiana uses the income shares model, see Indiana Child Support Guideline 1, and has addressed a similar issue. In In re Marriage of Blanford, father had no overnight parenting time with one child, but “significant overnight parenting time with” another child. 937 N.E.2d 356, 361 (Ind. Ct. App. 2010). In calculating child support, the trial court used two separate child support worksheets, which “led to calculations that treated each child as though he was an only child for the purposes of calculating [father’s] child support obligations.” Id. On appeal, the court reversed, stating the method erroneously inflated father’s child support obligations. Id. The court remanded for the calculation of child support using only one worksheet and using the “basic support obligation for two children at the appropriate weekly income level.” Id. at 362. The trial court was then to start with the overnight parenting time credit for two children, and adjust the amount appropriately. Id. ¶ 10 Colorado also uses the income shares model, see In re Marriage of Nimmo, 891 P.2d 1002, 1007 (Colo. 1996), and has addressed a similar issue, In In re Marriage of Wells, the father had differing visitation schedules with each child. 252 P.3d 1212, 1214 (Colo. App. 2011). The trial court added together two separate child support worksheets to calculate child support. Id. On appeal, the court reversed, stating that method “is contrary to the guidelines and schedule, which provide for incremental increases in support for each additional child in a family,” Id. The court remanded for the trial court to credit “overnight visits with only one of two children by crediting the parent for one-half of an overnight for each visit with the one child.” Id. ¶ 11 As a final example, Maine uses the income shares model, see Me. Rev. Stat. tit, 19-A, §§ 2001-2012, and has addressed a virtually identical issue. In Lawrence v. Web-ber, the parents had three minor children: two sons and one daughter. 894 A.2d 480, 482 ¶ 2 (2006). The daughter lived with the mother full time and the sons split their time equally with the parents. Id, at 482 ¶ 4, The trial court calculated child support by adding together two separate worksheets, using “the number of children in each household rather than the total number of children for whom support was being calculated.” Id. at 482 ¶ 6, This resulted in child support being calculated as if the daughter was an only child and then adding that amount to the worksheet for the two sons. On appeal, the court reversed, stating that method was incorrect because it overstated the costs and resulting obligations of parenting the children. Id. at 484 ¶ 14. The court remanded to the trial court to calculate child suppox*t using “the total number of children for whom support was being determined when calculating the basic support entitlement.” Id ¶ 12 With these cases in mind, as Father argues, the Arizona Guidelines only incrementally increase the support obligation as more children are added. A.R.S. § 26-320 Appendix (“Schedule of Basic Support Obligations”). At all income levels, the support obligation is not merely multiplied by the number of children. Id. As with the cases in other income shares model states, the Guidelines recognize that adding each child to a household increases costs in an incremental, but not equal, amount. Thus, treating one of three children as an only child and then adding those costs to a two-child household results in an inflated child support obligation. As a result, the child support order in this case was erroneous and is vacated. ¶ 13 The superior court is vested with broad discretion when determining child support. Nash, 232 Ariz. at 478 ¶ 16, 307 P.3d 40. On remand, the court should treat all the children as one household and prepare one worksheet. To determine the adjustment for costs associated with parenting time, the court must “first determine the total annual amount of parenting time indicated in a court order or parenting plan or by the expectation or historical practice of the parents” for each child, A.R.S. § 25-320 Appendix § 11. Adding together the total number of parenting time days for each parent for all children and then dividing that total by the number of children yields an average annual amount of parenting time days for use in determining child support under the Guidelines. Id. And after determining the child support amount under the Guidelines, the court still retains the discretion to deviate, provided it makes sufficient written findings for doing so. See A.R.S. § 25-820 Appendix § 20 (when deviating from Guidelines, court is to make written findings considering “the best interests of the child in determining the amount of a deviation”). CONCLUSION ¶ 14 The order modifying child support is vacated and the issue remanded for further proceedings consistent with this opinion. . Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. . In a separate memorandum decision, Mitton v. Mitton, 1 CA-CV 15-0769 FC, 2017 WL 1325650 (Ariz. App. April 11, 2017), filed simultaneously with this opinion, this court addresses Father's challenge to an order modifying parenting time and the parties’ claims for attorneys’ fees and costs on appeal.

OPINION SWANN, Judge: ¶ 1 In this appeal, we hold that A.R.S. § 38-775 requires a former spouse of an Arizona State Retirement System (“ASRS”) retiree to be treated as a “spouse” for purposes of survivor benefits awarded under a domestic relations order (“DRO”). Because of this requirement, we further hold that the age limits on non-spousal contingent annuitants contained in Arizona Administrative Code R2-8-126(H) do not apply to former spouses whose payments are ordered by Qualified DROs (“QDROs”). ¶ 2 Sharon Di Giacinto appeals a judgment holding that ASRS could terminate her sur-vivorship rights in her ex-husband, Richard Hillis’s, retirement annuity that the superior court ordered as part of a decree of dissolution. A.AC. R2-8-126(H) provides that “[a] member who is ten years and one day, or more, older than the member’s non-spousal contingent annuitant is not eligible to participate in a 100% joint-and-survivor option.” The superior court ruled that the divorce decree and final DRO were not acceptable under A.R.S. § 38-773(B), because Di Giacin-to, as a former spouse, is a “nonspouse” under AA.C. R2-8-126(H) and because she is more than ten years younger than her former husband. We disagree. Because the final DRO complied with all statutory requirements necessary to qualify Di Giacinto as a spousal contingent annuitant, we reverse and remand for an entry of judgment. PACTS AND PROCEDURAL HISTORY ¶ 3 The relevant facts are undisputed. Di Giacinto and Hillis were married in 1983. In 2003, Hillis retired after working almost 39 years with an ASRS employer. Under A.R.S. § 38-760(B)(l) and A.A.C. R2-8-120(A)(2), Hillis elected a 100% joint and survivor annuity, which provided a reduced monthly benefit amount but continued payments until Di Giacinto’s death if she outlived him (“the plan”). ¶ 4 In February 2006, Hillis (then age 69) and Di Giacinto (then age 45) divorced, and the superior court issued a decree of dissolution with orders that a third party prepare a supplemental DRO. ASRS approved a draft DRO. In June 2007, the court issued the final DRO which awarded Di Giacinto 48.75% of the monthly annuity benefit and 100% surviv- or benefits as a contingent annuitant. ASRS agreed to comply with the final DRO, designating it a QDRO. ¶ 5 In June 2014, Hillis requested a review of the final DRO’s distribution allocation, invoking ASRS’s authority to correct errors under A.R.S. § 38-765. ASRS nominally denied his “request ... to facilitate any legal review of the current DRO[, because] any formal amendment to the [final] DRO must be done in the Superior Court of Arizona.” Nonetheless, under A.R.S. § 38-773(A), ASRS determined that the final DRO was “not acceptable,” because it preserved Di Giaeinto’s survivor benefits, which it concluded violated AAC. R2-8-126(H). ¶ 6 In July 2014, Di Giacinto requested a hearing on the issue. After the hearing, an ALJ issued a proposed ruling for the ASRS Board concluding that when the decree was entered, Di Giacinto “was automatically removed as the [contingent annuitant on the plan] by operation of law.” The ALJ recommended that Di Giacinto’s appeal be dismissed, and the Board did so. ¶7 Di Giacinto appealed to the superior court, which affirmed. The superior court did not directly address the statutory or equitable issues Di Giacinto raised except to adopt the view that A.R.S. § 38-773(D) removed Di Giacinto as a beneficiary by operation of law. Di Giacinto appeals. STANDARD OF REVIEW ¶ 8 We review questions of statutory interpretation de novo. J.L.F. v. Ariz. Health Care Cost Containment Sys., 208 Ariz. 159, 161, ¶ 10, 91 P.3d 1002 (App. 2004). Under A.R.S. § 12-910(E), we must reverse an administrative decision if it is contrary to law. When a statute is part of a broader statutory scheme concerning a single subject, we construe it in conjunction with related statutes, giving effect to each provision. Johnson v. Mohave County, 206 Ariz. 330, 333, ¶ 11, 78 P.3d 1051 (App. 2003). In interpreting statutes, we “give meaning to ‘each word, phrase, clause, and sentence ... so that no part of the statute will be void, inert, redundant, or trivial.’ ” Herman v. City of Tucson, 197 Ariz. 430, 434, ¶ 14, 4 P.3d 973 (App. 1999) (citation omitted). ¶ 9 “We give great weight to ‘[a]n agency’s interpretation of a statute or regulation it implements.’ ” Sharpe v. Ariz. Health Care Cost Containment Sys., 220 Ariz. 488, 494, ¶ 18, 207 P.3d 741 (App. 2009) (citation omitted). But we make our own legal conclusions to determine whether the agency properly interpreted the law. Avila v. Ariz. Dep’t of Econ. Sec., 160 Ariz. 246, 248, 772 P.2d 600 (App. 1989). An “agency’s interpretation is not infallible, and courts must remain the final authority on critical questions of statutory construction.” U.S. Parking Sys. v. City of Phoenix, 160 Ariz. 210, 211, 772 P.2d 33 (App. 1989). Regulations may not be applied inconsistent with or contrary to the statutes they implement. Sharpe, 220 Ariz. at 495, ¶ 20, 207 P.3d 741. DISCUSSION ¶ 10 A.R.S. § 38-773(B) provides: “[a]n acceptable [DRO] shall not require the board to provide any type, form or time of payment of severance, survivor or retirement benefits or any severance, survivor or retirement benefit option that is not provided under this article.” ASRS argues that an acceptable DRO cannot retain a former spouse as the contingent annuitant if he or she does not conform to the age restrictions in AAC. R2-8-126(H). That regulation provides, in pertinent part, that “[a] member who is ten years and one day, or more, older than the member’s non-spousal contingent annuitant is not eligible to participate in a 100% joint-and-survivor option.” (Emphasis added.) We find no statutory support for ASRS’s contention that “nonspouses” include former spouses when a QDRO recognizes the former spouse’s community property interest in the survivor benefits. 1. UNDER A VALID QDRO, FORMER SPOUSES ARE NOT “NONSPOUSES” FOR PURPOSES OF DETERMINING THE LIMITS ON CONTINGENT ANNUITANTS. A. Controlling Federal Law Excludes Former Spouses Whose Benefits are Subject to a QDRO From the Definition of “Nonspouse.” ¶ 11 The term “non-spousal contingent annuitant” as used in R2-8-126 is not defined in the regulation or in statute. AR.S. § 38-775(F) prescribes the distributions that ASRS may make to “nonspouse” beneficiaries. Subsection (F)(1) limits benefits payable to nonspouses in accordance with the table contained in 26 C.F.R. § 1.401(a)(9)—6 at Q-2, A-2(c)(2). The table limits the maximum percentage of the member’s benefits that non-spousal contingent annuitants may receive based on the age difference between the member and the contingent annuitant. In accordance with A.R.S. § 38—760(B)(1), which provides that “all, two-thirds or one-half of the retirement income, as the member elects, shall be continued during the lifetime of the contingent annuitant designated by the retiring member,” R2-8-126(H) limits a member’s selection based on the age difference between the member and the nonspouse contingent annuitant. ¶ 12 Read in isolation, the term “nonspouse” might be susceptible to an interpretation that would include former spouses. But the remainder of Title 38, Chapter 5, Article 2, requires us to conclude that the term “nonspouse” is not based on an individ ual’s status as a spouse at the time of distribution. ¶ 13 A.R.S. § 38-775(A)(l) provides that “the requirements of this section take precedence over any inconsistent provisions of this article.” Section 38-775(A)(2) provides that “[a]U distributions required under this section shall be determined and made pursuant to § 401(a)(9) of the internal revenue code and the regulations that are issued under that section.” (Emphasis added.) As a matter of Arizona law, therefore, the statutory limitations on non-spousal contingent annuitants in § 38-776—and any related regulations— must be interpreted consistent with the relevant provisions of the Internal Revenue Code. ¶ 14 Section 401(a)(9) of the Internal Revenue Code sets general rules governing how, when, and to whom benefits may be distributed, including spousal survivor benefits. The regulations under that section provide: A former spouse to whom all or a portion of the employee’s benefit is payable pursuant to a QDRO will be treated as a spouse (including a surviving spouse) of the employee for purposes of section 401(a)(9), ... regardless of whether the QDRO specifically provides that the former spouse is treated as the spouse.... 26 C.F.R. § 1.401(a)(9)-8 at Q-6, A-6(a) (emphases added). The plain language of the regulation that § 38-776 incorporates requires ASRS to treat Di Giacinto as a spouse if the decree or final DRO is a QDRO (“the federal former spouse exception”). We therefore reject ASRS’s attempt to equate “former spouse” with “nonspouse” for these purposes. B. Though the Decree Was Not a QDRO, the Final DRO Was a QDRO, Effective Even When Entered After the Decree. ¶ 15 A QDRO for purposes of the federal former spouse exception is “a [DRO] ... which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan.” 26 U.S.C. § 414(p)(l)(A)(i); see 26 C.F.R. § 1.401(a)(9)-8 at Q-6 (QDRO for purposes of the federal former spouse exception is defined by § 414). The term “alternate payee” refers to a spouse or former spouse “who is recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under a plan with respect to such participant.” 26 U.S.C. § 414(p)(8). ¶ 16 A DRO is: any judgment, decree, or order (including approval of a property settlement) which— (i) relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and (ii) is made pursuant to a State domestic relations law (including a community property law). 26 U.S.C. § 414(p)(l)(B). The DRO must specify (1) the names and last known mailing addresses of the named participant and alternate payee, (2) the amount or percentage of the benefits to be paid to the alternate payee, (3) “the number of payments or period to which the order applies,” and (4) “each plan to which [the DRO] applies.” 26 U.S.C. § 414(p)(2). The DRO (a) cannot require ASRS to provide “any type or form of benefit, or any option, not otherwise provided under the [member’s] plan,” (b) cannot require ASRS to provide increased benefits as determined by the actuarial value of the plan, and (e) may not revoke the benefits owed to another alternate payee under a different QDRO. 26 U.S.C. § 414(p)(3). ¶ 17 The decree itself is not a QDRO for purposes of the federal former-spouse exception, because it does not list the address or last known address of Hillis or Di Giacinto. But the final DRO meets all of the requirements, as ASRS acknowledged when the final DRO was entered. ¶ 18 ASRS argues that if the decree itself was not a QDRO, then the final DRO could not be a QDRO. A QDRO is “any judgment, decree, or order ... which ... relates to the provision of ... marital property rights to [a] spouse [or] former spouse.” 26 U.S.C. § 414(p)(l)(B)(i) (emphases added). By using “any” and “former spouse,” the statute unambiguously allows a QDRO to be issued after a marriage is dissolved. We therefore hold that a QDRO need not be entered contemporaneously with the decree of dissolution—it must simply include all the elements in 26 U.S.C. § 414(p)(l)-(3). II. THE ARIZONA STATUTES GOVERNING ASRS DID NOT AUTOMATICALLY TERMINATE DI GIACIN-TO’S SURVIVOR BENEFITS. ¶ 19 ASRS also argues, and the superior court ruled, that A.R.S. § 38-773(D) automatically terminated Di Giacinto’s rights to survivor benefits upon divorce. But ASRS’s reading ignores the first twelve words of that provision; Except as provided by the express terms of a domestic relations order, the divorce or annulment of a member’s marriage revokes any revocable .., [disposition or appointment of benefits made by a divorced member to that member’s former spouse.... A.R.S. § 38-773(D) (emphasis added). A.R.S. § 38-773(H) provides that: “Domestic relations order” means any judgment, decree, order or approval of a property settlement agreement entered in a court of competent jurisdiction that: (a) Relates to marital property rights of a spouse or former spouse, (b) Creates or recognizes in the spouse or former spouse the existence of an alternate payee’s right to severance, survivor or retirement benefits. (c) Assigns the spouse or former spouse as alternate payee the right to receive all or part of the severance, survivor or retirement benefits payable to the member. (Emphases added.) ¶20 Both the decree and the final DRO satisfy the requirements of § 38-773(H), and the dissolution therefore did not work an automatic defeasance of Di Giacinto’s rights to survivor benefits, CONCLUSION ¶21 For the foregoing reasons, we hold that ASRS has no statutory authority to limit a former spouse’s survivor benefits if a qualified domestic relations order preserves them. We therefore reverse, and remand for entry of judgment in favor of Di Giacinto. Under A.R.S. § 12-348(A)(2), we grant Di Giacinto’s request for attorney’s fees upon compliance with ARCAP 21. . We use the language of the latest version of the regulation because there have been no material revisions since Hillis's retirement. . Because we resolve this appeal as a matter of law, we need not address Di Giacinto’s factual arguments concerning the ASRS Board's hardship findings with respect to equitable estoppel. .Hillis is also an appellee, He joins most of ASRS’s arguments on appeal and also argues that the final DRO’s prohibition against his changing to a straight life annuity that would pay higher monthly benefits and eliminate Di Giacin-to's survivor benefits was improper. Because the decree is not properly before us, we presume the DRO is valid. . ASRS argues that because it is a tax-qualified govemmentally defined benefit plan, federal law does not apply to it. While it is true that federal law does not impose these regulations on ASRS, the Arizona legislature has selectively invoked certain provisions of federal law. Therefore, our interpretation must, as a matter of state law, be guided by the federal provisions that Arizona has chosen to incorporate into ASRS's governing statutes. . Our interpretation does not render the term "nonspouse'' meaningless, because members enjoy broad discretion in their choice of contingent annuitants, and may, for example, name their children as "nonspouse beneficiaries.”

OPINION CATTANI, Judge: ¶ 1 In this appeal, we address whether an employee of a private contractor working in a state-owned prison is a statutory employee of the State such that workers’ compensation, rather than a tort action against the State, is the exclusive remedy for injuries sustained at work. We hold that, because the State in this case retained the right to control or supervise the contractor’s work, and because the services constitute a part or process in the usual and regular course of the State’s business, the employee was a statutory employee of the State and could not pursue a tort action against the State for her work-related injuries. Accordingly, and for reasons that follow, we affirm the superior court’s grant of summary judgment in favor of the State. FACTS AND PROCEDURAL BACKGROUND ¶ 2 While working as a clinical social worker at a prison operated by the Arizona Department of Corrections (“ADC”), Nancy Wagner slipped and fell on an unmarked wet floor. Wagner was working at the time as an employee of Wexford Health Services, Inc., which had a contract with ADC to provide healthcare services at state-owned prisons. ¶ 3 Wagner filed a workers’ compensation claim against Wexford and received benefits. She also sued the State, arguing that ADC negligently failed to maintain the prison where she fell. ¶4 After conducting discovery, the State moved for summary judgment, arguing that because ADC was Wagner’s statutory employer under Arizona Revised Statutes (“A.R.S.”) § 23-902(B), workers’ compensation was her exclusive remedy under A.R.S. § 23-1022(A). The court entered summary judgment for the State on that basis, and Wagner timely appealed. DISCUSSION ¶ 5 Wagner argues that summary judgment was improper, alleging that ADC was not her statutory employer under A.R.S. § 23-902(B) because ADC did not have sufficient control or supervision over her work, and because the work provided by Wexford was not a part or process of ADC’s trade or business. We review the court’s summary judgment ruling de novo, and view the facts in the light most favorable to the non-moving party. Tilley v. Delci, 220 Ariz. 233, 236, ¶ 7, 204 P.3d 1082 (App. 2009). Summary judgment is appropriate only 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); see also Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000 (1990). ¶ 6 Unless an employee specifically rejects workers’ compensation before injury, the workers’ compensation system is the exclusive remedy for that employee to recover damages resulting from his or her employer’s negligence. A.R.S. § 23-1022(A); Anderson v. Indus. Comm’n, 147 Ariz. 456, 457, 711 P.2d 595 (1985). Under AR.S. § 23-902(B), an entity that hires a contractor may be the statutory employer of the contractor’s employees for workers’ compensation purposes if (1) the entity “retains supervision or control” over the contractor’s work and (2) the contractor’s “work is a part or process in the trade or business of the [entity].” See also Young v. Envtl. Air Prods., Inc., 136 Ariz. 158, 163-64, 665 P.2d 40 (1983). The statutory employer provision generally “covers all situations in which work is accomplished which th[e] employer, or employers in a similar business, would ordinarily do through employees.” Basurto v. Utah Constr. & Mining Co., 15 Ariz.App. 35, 41, 485 P.2d 859 (App. 1971). ¶ 7 Wagner argues that a provision in the contract between Wexford and ADC, which provides that neither Wexford nor its employees should be considered employees of ADC “under any circumstances,” creates a fact question as to whether she was a statutory employee of ADC. But the label parties give to their relationship does not end our inquiry into whether one party is an employee of the other. Anton v. Indus. Comm’n, 141 Ariz. 566, 568, 688 P.2d 192 (App. 1984). Rather, we look to the substance of the contract, id. recognizing that we should strictly construe the statute “when loss of the worker’s common law rights is the object for which the statute is invoked.” Young, 136 Ariz. at 163, 665 P.2d 40. ¶ 8 A hiring entity, such as ADC here, exercises supervision or control over the contractor if the entity retains “the right to control or supervise the methods of obtaining a specific result.” Hunt Bldg. Corp. v. Indus. Comm’n, 148 Ariz. 102, 105, 713 P.2d 303 (1986). To determine whether an employer is a statutory employer of an independent contractor’s employee, we consider the control exercised by the employer over the contractor, not the employee. Young, 136 Ariz. at 163, 665 P.2d 40. ¶9 In assessing whether an entity has such supervision or control, the court considers the totality of the circumstances, including the following factors: the duration of the employment; the method of payment; who furnishes necessary equipment; the right to hire and fire; who bears responsibility for workers’] compensation insurance; the extent to which the employer may exercise control over the details of the work[;] and whether the work was performed in the usual and regular course of the employer’s business. Home Ins. Co. v. Indus. Comm’n, 123 Ariz. 348, 350, 599 P.2d 801 (1979). ¶ 10 Applying the Home Insurance factors here, we note that ADC retained the right to control Wexford’s provision of healthcare to inmates in the state prison system, regardless of the label used in the contract. Wex-ford and ADC entered into an exclusive 3-year contract under which ADC provided and maintained facilities and fixtures for health services. ADC retained the power to approve Wexford’s hires, and Wexford was required to notify and consult with ADC officials before “discharging, removing or failing to renew the Contracts of professional staff.” Although Wexford carried workers’ compensation insurance for its employees, it did so pursuant to ADC’s requirements. And the contract required Wexford to give ADC monitoring personnel “free access to all Contract areas at any time and ... free access to staff and work products, and to any correspondence, records, reports, or other written and/or electronic materials dealing with [the] Contract.” These monitors were tasked with reviewing Wexford’s compliance with ADC-mandated procedures “on a random and routine basis” “to assure that correctional health service needs of the inmate population are adequately met.” Thus, ADC had the right to control the methods of Wexford’s work, satisfying the first prong of § 23-902(B). ¶ 11 Wagner also argues that the provision of healthcare to inmates is not a “part or process in” ADC’s trade or business. A work activity is part or process of an employer’s trade if “in the context of an ongoing and integral business process [the work activity] is regular, ordinary or routine in the operation of the business or is routinely done through the business’ own employees.” A.R.S. § 23-902(B). ¶ 12 Wagner points to the Legislature’s privatization of prison healthcare as evidence that the provision of health services to inmates is not a part or process in ADC’s business. See generally 2011 Ariz. Sess. Laws, ch. 278 (50th Leg., 1st Reg. Sess.). But ADC has an ongoing duty to ensure that inmates receive adequate health services. A.R.S. § 31-201.01(D); see also Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (holding that “deliberate indifference to serious medical needs of prisoners” violates the Eighth Amendment). ADC’s use of a contractor to provide health services does not relieve it of this duty. See DeMontiney v. Desert Manor Convalescent Ctr. Inc., 144 Ariz. 6, 8, 695 P.2d 255 (1985) (holding that when a county provided mental health services through a contractor, it could not delegate “the overriding duty to provide care and treatment” to involuntary commitment patients). Even after ADC hired Wex-ford to provide healthcare to inmates, the provision of healthcare remained a part or process in ADC’s maintenance of the state prison system. ¶ 13 Because both prongs of AR.S. § 23-902(B) are satisfied, Wagner was a statutory employee of ADC at the time of her injury. Accordingly, the superior court correctly entered summary judgment in favor of the State. CONCLUSION ¶ 14 For the foregoing reasons, we affirm. . Absent material revisions after the relevant date, we cite a statute’s current version.

OPINION BROWN, Chief Judge: ¶ 1 Colton P. (“Appellant”) appeals the superior court’s order committing him to a period of psychiatric treatment. For the following reasons, we affirm. BACKGROUND ¶2 In April 2016, the Pineview Hospital medical director petitioned the superior court for court-ordered evaluations, alleging that Appellant was a danger to himself, a danger to others, persistently and acutely disabled, and in need of treatment. Finding reasonable cause, the court ordered that Appellant be evaluated. ¶ 3 Following the evaluation, the Pineview medical director petitioned for court-ordered treatment. The physician affidavits supporting the petition described Appellant as having an impulse disorder, which caused him to have poor judgment and insight regarding his treatment needs. ¶ 4 The superior court scheduled an evi-dentiary hearing on the petition and directed that a digital recording be made of the proceeding. At the April 28 hearing, the court heard testimony from witnesses and admitted several exhibits, including the affidavits signed by the two physician witnesses and Appellant’s Individual Service Plan (“ISP”). The ISP described Appellant’s history of a suicide attempt and physical violence against his parents, and stated he had run away from his previous placement and into traffic. The physician affidavits stated Appellant had two reported traumatic brain injuries as a child and that he has an impulse disorder. Following the hearing, the court found Appellant needed treatment as set forth in the petition. The court ordered Appellant to undergo a combination of inpatient and outpatient treatment not to exceed one year in total duration, with the inpatient treatment not to exceed 180 days. ¶ 6 Appellant timely appealed. In attempting to prepare a transcript of the April 28 hearing, however, the Navajo County Transcription Coordinator reported the digital recording was inaudible because it had too much “background and feedback” noise. Appellant then filed a motion asking us to remand the case to the superior court for a “new hearing.” We issued an order staying the appeal and directing the superior court to settle the record pursuant to Arizona Rule of Civil Appellate Procedure (“ARCAP”) 11. After conducting a hearing, the court issued a minute entry outlining the recollections of counsel and the court as to the evidence presented at the April 28 hearing. We now consider the merits of the appeal based on the record before us. DISCUSSION ¶ 6 Appellant’s sole argument on appeal is that the superior court failed to substantively comply with the statutory requirement that it hear testimony from two acquaintance witnesses, because there is no transcript of the witnesses’ testimony from the commitment hearing. Appellant does not raise any substantive argument regarding the content of the witnesses’ testimony or otherwise challenge the sufficiency of the totality of the evidence presented at the hearing. ¶7 We review questions concerning the application of statutes de novo. In re MH 2007-001236, 220 Ariz. 160, 166, ¶ 15, 204 P.3d 418 (App. 2008) (citations omitted). Statutory requirements concerning civil commitment are strictly construed to protect the liberty interests of those involved. Id. (citation omitted). At a hearing on a petition for court-ordered treatment, Arizona law requires that the evidence presented include “the testimony of two or more witnesses acquainted with the patient at the time of the alleged mental disorder.” Ariz. Rev. Stat. (“A.R.S.”) § 36-539(B). Regarding the transcription of hearings on petitions for court-ordered treatment, A.R.S. § 36-539(E) provides: A verbatim record of all proceedings under this section shall be made by stenographic means by a court reporter if a written request for a court reporter is made by any party.... If stenographic means are not requested ..., electronic means shall be directed by the presiding judge. ¶ 8 Our supreme court has held that when a portion of the record is destroyed or unavailable, the proper procedure “is to file in the court in which the appeal is pending, a motion to suspend the progress of the appeal and to reinstate the [superior] court’s jurisdiction over the case for the limited purpose of reconstructing the record.” Rodriquez v. Williams, 104 Ariz. 280, 283, 451 P.2d 609 (1969) (emphasis added). The superior court should then “assist counsel to overcome the loss of the missing reeords[.]” Id. Further, where no transcript is available for appellate review, “the appellant may prepare and file a narrative statement of the evidence or proceedings from the best available source, including the appellant’s recollection.” ARCAP 11(d). The narrative statement must then be reviewed and approved by the superior court judge. Id. ¶ 9 On remand in this case, the superior court held a hearing to reconstruct the record. During this hearing, at which Appellant’s trial and appellate counsel were both present, the court noted that at the April 28 evidentiary hearing on the petition “two lay witnesses, Devon Lawrence and Barbara Stone ... testified regarding their observations of behavior by [Appellant].” The court also listed the physician witnesses and referenced the exhibits that had been admitted. Nevertheless, Appellant asserts on appeal that the parties “did not stipulate to any of the record” and that “no evidence ... was presented from two acquaintance witnesses,” as required by A.R.S. § 36-539(B). ¶ 10 Contrary to this contention, at the hearing called to reconstruct the record, Appellant’s trial counsel responded to the court’s summary of the evidence and witnesses by indicating he did not have any objection to the exhibits and he was “in agreement with who testified.” Appellant’s trial counsel also had the opportunity to add to the record his recollection of the testimony and evidence presented at the original hearing; but neither party discussed the content of the lay witnesses’ testimony. Further, the court asked multiple times whether there was anything else the parties wished to add to the record. Neither Appellant’s trial counsel nor appellate counsel noted any deficiencies in the record or asked to reconstruct the testimony of the lay witnesses. Appellant’s trial counsel could have supplemented the record with his own recollection of the testimony, but did not do so. See ARCAP 11(d). ¶ 11 “It is the appellant’s burden to ensure that the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised.” Blair v. Burgener, 226 Ariz. 213, 217, ¶ 9, 245 P.3d 898 (App. 2010) (internal quotations and citation omitted). This is because we are unable to determine the validity of an appellant’s contention when we cannot review the evidence upon which the appellant relies. Cf. Adams v. Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342, 678 P.2d 525 (App. 1984) (stating appellate courts prefer to decide cases on their merits, rather than on procedural grounds). But when portions of a trial record are not available because they no longer exist, the appellate court should reinstate the superior court’s jurisdiction for reconstruction of the record and thereby provide the appellant a reasonable opportunity to pursue the appeal. See Rodriquez, 104 Ariz. at 282-83, 451 P.2d 609. However, it is not the superior court’s responsibility to independently reconstruct the record for the appellant, but only to “assist” the parties in doing so, pursuant to the appellant’s available remedies under Rule 11. See id/, see also ARCAP 11(d). ¶ 12 Appellant suggests the superior court failed to follow our order requiring it to transmit its “written findings and/or the reconstructed materials” to this court. The superior court, however, was not required to make any specific findings or provide additional materials. The verbatim discussion between the superior court and counsel is reflected in the reconstruction hearing transcript and is summarized in the court’s minute entry. The transcript and minute entry constitute “reconstructed materials” as contemplated by ARCAP 11(g). ¶ 13 We conclude that the record on appeal in this case, as reconstructed by the parties and the superior court, confirms that the statutory requirement of receiving testimony from two acquaintance witnesses under A.R.S. § 36-539(B) was satisfied. CONCLUSION ¶ 14 We affirm the superior court’s order committing Appellant to a period of combined inpatient and outpatient psychiatric treatment.

STANFORD, Justice. This is an action by plaintiff, appellant herein, against the defendants, members and clerk of the Board of Supervisors of Santa Cruz County, who are appellees herein. After the complaint was filed and later amended defendants moved to dismiss the amended complaint on the ground that it failed to state a claim upon which relief may be granted. The court thereupon granted the motion, ordering that the complaint be dismissed and entered judgment thereon. From that judgment and order, this appeal is now taken. On November 30, 1948, an election was held in Santa Cruz county, at which time the residents of the county voted to authorize the issue of certain bonds with which to defray in part the cost of purchasing grounds for a “county hospital” and the erection of the hospital thereon. On May 2, 1949, defendants met and adopted the following resolution: “It is declared to be the policy of the Board of Supervisors of Santa Cruz County, that the County Hospital to be built from the proceeds of the bonds which will be sold on May 2, 1949, will be built for all classes of patients, principally patients who are able to pay and will pay for their hospitalization and hospital service and that such hospital service is being provided for paying patients from all parts of Santa Cruz County including the ‘Patagonia Area’ and the Eastern part of the County.” (Emphasis supplied) It is undisputed that the said meeting was regular in all respects, that all the members of the said board were present and that the above quoted resolution has never been changed, amended or repealed. Upon the filing of plaintiff’s complaint, a temporary restraining order was issued enjoining defendants from taking further action on the said bond issue. In his complaint, plaintiff prayed for a permanent injunction, prohibiting defendants from proceeding further with the said county bond issue, and for a declaratory judgment adjudging defendants to be without power to use the proceeds of the bond issue for the construction of a hospital which is to be, as declared by the defendants, princi pally for the use of patients who are able to pay and will pay for their hospitalization. Plaintiff makes three assignments of error, which allege in substance that the trial court erred in granting defendants’ motion to dismiss in that it appears from the amended complaint that plaintiff is an interested party and entitled to the relief prayed for and that unless defendants are enjoined from issuing the said bonds, they will wrongfully use the public funds obtained thereby, to wit: for the purpose of building a hospital, to be used principally for paying patients, contrary to the provisions of Article 3, Chapter 17, A.C.A. 1939, enumerating the powers of the boards of supervisors. Section 17-309, A.’C.A. 1939, in part reads as follows: “The board of supervisors, under such limitations and restrictions as are prescribed by law, may: * * * * * “5. Provide for the care and maintenance of the indigent, sick and the dependent poor of the county; erect and maintain homes and hospitals therefor; provide in their discretion a farm in connection with the county hospital, and make regulations for working the same; * * * * * * “8. Cause to be erected and furnished a court-house, jail, hospital and such other buildings as necessary, and construct and establish & branch jail, when necessary,, at a point distant from the county seat”- We are here confronted with two maim questions: (1) Does the Board of Supervisors have the power to provide maintenance and care for the sick of the county who are not dependent poor nor indigents; and (2) if they possess no such power,, does the adoption of the above quoted resolution, expressing their intent to wrongfully use the proceeds of the said bond issue amount to a usurpation of power rendering them without authority to-proceed with the bond issue ? Our first consideration will be directed to the question of the authority of the Board of Supervisors in connection with the erection and maintenance of a county hospital. Much space and effort is expended in the briefs discussing the grammatical structure of section 17-309, supra. Plaintiff contends that this section gives the county no power to construct and maintain hospitals for care of residents other than those who are indigents or dependent poor. Defendants maintain that the phrase "indigent, sick and the dependent poor of the county" refers to three distinct types of people, namely those county residents who are indigents, those who are sick and those who are the dependent poor. In our opinion a lengthy dissertation upon proper punctuation and sentence structure would in no manner contribute to the proper determination of the issues herein. Our attention will instead be directed to the section as a whole. We think it ridiculous to assume that the counties make a practice, or could make a practice of providing free medical aid and hospital service for all of its residents regardless of their financial status, nor can we in our most elastic imagination feel that the legislature entertained such an intention in granting the boards of supervisors powers under the above quoted section. We are of course committed to the view that the strict rules of technical grammar will be ignored where they are not consistent with the general meaning and object of a statute. Murphy v. State, 65 Ariz. 338, 181 P.2d 336. We think it is evidenced clearly by the history of the Act that the legislative intent at the time of the adoption of section 17-309, supra, was that the medical care furnished by the counties should be restricted to those residents who are indigents or dependent poor. Section 2418(5), Revised Statutes 1913, Arizona Civil Code, contained provisions similar to section 17-309(5), supra, and the wording there appeared: "To provide for the care and maintenance of the indigent sick, or the otherwise dependent poor of the county". It is clear and unquestionable that the application of county assistance was by this section limited to indigents and dependent poor. A careful study of the changes made in this section in the development of the present section 17-309, supra, shows no specific legislative intent to make such a drastic change in the meaning of the section. Such minor changes in word placing and punctuation must be regarded as changes in form and not in substance of the law, unless a legislative intent to change the substance clearly appears. Peterson v. Central Arizona Light & Power Co., 56 Ariz. 231, 107 P.2d 205. We are unable to find such intent. Also from section 17-349, A.C.A. 1939, providing for possible admission of paying patients to the county hospitals, we quote: "* * * The admission of a paying patient shall not be to the inconvenience of any indigent patient * * *." We hold therefore that the provisions of section 17-309, supra, provide for county assistance only where the recipients are indigents or dependent poor. The next question for determination pertains to an analysis of the substance and effect of the above quoted resolution as passed by defendants and its effect upon the prospective bond issue. It is plaintiff’s contention that defendants, having declared an invalid purpose for the use of the proceeds of the bond issue, are now without power to proceed with the bond issue. Defendants maintain that their resolution was merely a statement of policy and of intended use of the hospital which in no manner affected their primary right and duty under the bond election mandate to erect a county hospital. They further contend that plaintiff therefore has no cause of action unless and until the hospital is erected and actually used principally for paying patients to the inconvenience of the county indigent patients. As pointed out above, the election at which the bond issue was authorized was regular in all respects and it thereupon became the duty of the defendants, as county officials, to carry out the will of the people. The duty remains unchanged, i. e., to construct and maintain a “county hospital”, which, as discussed above, is to be used primarily for the care of the indigents and dependent poor of the county. The only method of attaining that end is, as provided for by the said election, the issue of couuty bonds. In the face of this we are here confronted with nothing more than a resolution, adopted by a majority of a three-man board. To suppose that a mere statement of intention issued by a group of county officials could sidetrack a bond issue carried by an election of the people, only because that intention was contrary to the will of the people, would allow obstinate public officials to easily thwart' any such public spirited movement toward progress. It is of course well-settled law that an injunction will not issue to restrain a lawful act. 43 C.J.S., Injunctions, § 19, and cases cited therein. Consequently an injunction may not issue to enjoin the bond issue which is not only lawful under the code, but was also duly authorized by an election. The resolution passed by defendants, being contrary to the. express provisions of law relating to county hospitals, is therefore entirely void' and without effect and defendants are-without power to act accordingly. It remains the duty of the defendants to proceed with the bond issue and use the proceeds in. the manner prescribed. We hold therefore that the complaint failed to state a claim upon which-relief could be granted and that the lower-court was correct in dismissing the same- and entering judgment thereon. Judgment affirmed. UDALL, C. J., and PHELPS, DE CONCINI and LA PRADE, JJ., concur.

UDALL, Chief Justice. The Industrial Commission of Arizona, plaintiff-appellant, brought this suit in the superior court against defendant-appellee, J. & J. Construction Co., a co-partnership, seeking to recover premiums on a policy of insurance issued by the commission to the company pursuant to the Arizona Workmen’s Compensation Law, A.C.A. 1939, § 56-901 et seq. The premiums were claimed due on wages earned and paid outside of Arizona, and a penalty of ten times the amount of such premiums, together with costs and attorneys’ fees were sought. Interpretation of statutory provisions for extra-territorial coverage under the Workmen’s Compensation Law, as well as the jurisdiction of the commission to enter the “order” in question, are involved. From a judgment in favor of defendant, plaintiff has appealed. The undisputed facts giving rise to the instant suit are as follows: The defendant employer is a partnership having its residence in Oklahoma. It has been engaged in transitory work for the past several years in the construction and installation of various rural electrification and power projects in Arizona and elsewhere. In March 1947 while defendant was working in Arizona along the Colorado River, the boundary between Arizona and California, it applied for and received a policy of insurance with the state compensation fund. While some of its employees were hired in other states, at least 25 of them were hired within this state. Premiums on all wages paid by defendant to its employees for work performed within the physical boundaries of Arizona were paid to the commission. When its work within this state was completed, defendant moved its base of operations across the Colorado River to Blythe, California and took out workmen’s compensation insurance on all of its employees under the laws of that state. Labor Code, § 3201 et seq. Although 25 of its employees were originally hired in this state, the record does not disclose whether they were or were not residents of Arizona. A new written contract of employment was entered into in California with each of defendant’s employees individually under date of March 21, 1949. In addition to specifying the wage rate and that the work was to be performed wholly within that state, the contract provided: “All contracts or agreements heretofore made between the employer and employee, of every kind and nature and wheresoever made are hereby cancelled * * This step was consistent with defendant’s answer to this question on its original application for an Arizona policy: “7. (a) Will employees who have been hired, or are regularly employed, in the state of Arizona be required to work outside this state? (Ans.) No. Explain. Employment of such men will be terminated and only be permitted to work outside the state after they have been rehired outside the state.” When the commission found that defendant had entered into these new contracts of employment and had failed to include the California-earned wages of the 25 men who had been originally hired in Arizona on its periodic report and had failed to pay premiums thereon to the Arizona fund, it ordered an audit of the defendant’s books and billed defendant for the premiums herein sued for. Counsel for defendant requested a hearing on this payroll audit and the hearing was granted. The seven page transcript shows that the hearing was somewhat informal, i. e., no witnesses were sworn or testified. It consisted mainly of an informal discussion between plaintiff’s field auditor, the referee, and counsel for defendant, together with the admission of certain exhibits, to wit: the payroll audits and a copy of the employment contracts heretofore referred to. Twelve days later the commission by an interoffice communication directed their field auditor to “audit (defendant’s) payrolls and assess for premium”. Nearly three months later, on January 15, 1950, the commission entered a formal order finding that the 25 men in question were employees subject to the provisions of the Arizona Workmen’s Compensation Law and covered under the terms of the Arizona policy of insurance. The commission’s legal department was instructed to bring suit to collect the premiums found to be due. The commission further found: “ * * * that the purported contracts signed by the several employees were a condition of employment and are null and void and of no effect as contrary to the provisions of the statute regulating the status of employer and employee in the State of Arizona.” None of the essential statutory steps were taken by defendant to-obtain a court review of the reasonableness or lawfulness of this order. On February 8, 1950 the instant suit for collection of premiums was commenced* The defendant by its amended answer admitted that the commission had, by its, order, determined that the 25 persons named in the complaint were subject to-the Arizona workmen’s compensation law and that their status 'was not changed by the employment contracts dated March 21, 1949. Plaintiff’s motion for a summary judgment was denied. A pre-trial hearing was had, resulting in an order of court setting forth certain undisputed facts. The gist of the commission’s order was included therein together with a recitation that the premiums sued for in the sum of $1339.36 represented “total wages paid to said persons at the rate of premium provided for in said policy of insurance. That no part of said amount had been paid by defendant.” (The real question is whether any premiums are due and not as to the amount thereof.) At the trial no witnesses were sworn or testified for either party. The plaintiff’s case consisted of placing in evidence an abstract of record containing the proceedings theretofore had before the industrial commission which included the order of January 15, 1950, together with the policy of insurance, payroll reports, audits thereof and premium billing. The defendant rested after offering a written stipulation that the work performed by the men for whom premiums on wages paid were claimed due was performed wholly within the state of California; that the Workmen’s Compensation Law of California'was a compulsory law (as is Arizona’s) and hence defendant was required to insure all of its employees in that state with an insurance carrier authorized to do business there; and that the California law discharges and gives an employer a release from all obligations to his employees in California when he has complied with the workmen’s compensation law of that state. No findings of fact were either requested or made, but the court did make certain conclusions of law, the crucial one being that the plaintiff “failed to prove by a preponderance of the evidence, that any premiums for workmen’s compensation insurance were due and unpaid from defendants to the state compensation fund. * * Plaintiff made an unsuccessful attempt to obtain from the lower court a definite and express finding on several matters, including (a) the validity or invalidity of the purported contracts of employment made in California and their legal effect, (b) the validity of the commission’s order of January 15, 1950, and the effect of the failure of defendants to seek a timely court review thereof, and (c) whether contracts of employment made in California can invalidate the effect of the Arizona law. Judgment was then entered that plaintiff take nothing by reason of its complaint and defendant was awarded its attorneys’ fees in the sum of $300 plus costs. This appeal followed. We are somewhat at a loss to know the real basis for the judgment entered by the learned trial court. Obviously however only questions of law are presented, hence we are not bound by the conclusions of either the industrial commission or the trial court but are at liberty to draw our own legal conclusions from the admitted facts. Mountain States Tel. & Tel. Co. v. Sakrison, 71 Ariz. 219, 225 P.2d 707. The basis for this suit to collect premiums on wages paid to persons hired in Arizona for work actually performed by them in another state arises under the rare extra-territorial provisions of our statutes. Article 18, Section 8 of the Constitution of Arizona, directed and empowered the legislature to enact a Workmen's Compensation Law. All sections of the code hereafter cited will refer to A.C.A. 1939. Sec. 56-943 of such Act provides in part that: "If a workman who has been hired or is regularly employed in this state receives a personal injury by accident arising out of and in the course of such employment, he shall be entitled to compensation according to the law of this state even though such injury was received outside of this state. * * *" (Emp. sup.) Section 56-931 requires payment of compensation to every employee who is injured, or to his dependents if he is killed, "by accident arising out of and in the course of his employment, wheresoever such injury has occurred * * *." (Emp. sup.) Article 18, Section 3 of the constitution makes it unlawful for any person to require of its servants or employees as a condition of their employment, or otherwise, to contract to release their employer from liability on account of personal injuries while in such employment, and section 56-977 provides in part that any agreement by an employee to waive his rights to compensation shall be void. It thus appears to be the clear legislative intent that every person — with exceptions not material here — who has been hired in Arizona to perform work for an employer in the regular and usual course of his business, whether in intrastate, interstate or foreign commerce, secs. 56-931, 56-943 and 56-965, shall be insured under a policy of insurance issued or approved by the Industrial Commission of Arizona. Secs. 56-933, 56-922, and 56-932. The employer and his insurance carrier are made subject to the jurisdiction of the commission and the courts of Arizona for (a) the payment of compensation for injuries or death by accident arising out of and in the course of employment "wheresoever such injury has occurred" secs. 56-931 and 56-943 and, (b) the payment of premiums, sec. 56-922, at rates to be fixed by the commission for such insurance, sec. 56-923, payable at such times as it may determine, sec. 56-922, under rules adopted by the commission. Sec. 56-920. See Ocean Accident & Guarantee Corp. v. Industrial Comm., 32 Ariz. 275, 257 P. 644; Corral v. Ocean Accident & Guarantee Corp., Ltd., 42 Ariz. 213, 23 P.2d 934; Red Rover Copper Co. v. Industrial Comm., 58 Ariz. 203, 118 P.2d 1102, 137 A.L.R. 740; O'Neill v. Martori, 69 Ariz. 270, 212 P.2d 994; Haggard v. Industrial Commission, 71 Ariz. 91, 223 P.2d 915. However, to collect delinquent premiums due it the commission is relegated by statute to the filing of a civil suit, sec. 56-948; O'Neill v. Martori, supra, which course was followed in the instant case. It is argued by defendant, without a cross-assignment of error or any evidence upon which to predicate such argument, that the order of January 15, 1950, upon which the • commission relies was made without notice to it. Unquestionably, if plaintiff’s order in the instant case had not been served upon defendant such lack of notice would have constituted a violation of the due process clause of both the federal and state constitutions and such an order would have been subject to collateral attack. But it is significant in this regard that defendant in the court below did not rely upon lack of notice as a defense. Public officers are presumed to do their duty. Altman v. Pace, 49 Ariz. 231, 65 P.2d 1164; Donaldson v. Sisk, 57 Ariz. 318, 113 P.2d 860. Under the rules of the commission, service of an order may be made in any of three prescribed methods. See General Rules of the Industrial Commission of Arizona, Rules 42, 43, and 44. In the absence of evidence to the contrary, it is presumed that such service was made. Defendant also contends that Arizona should give the same faith and credit to the contracts in question that California does and that failure of Arizona to do so would be a clear violation of the full faith and credit clause of the federal constitution. Appellate courts of not less than 34 states, as well as the United States Supreme Court, have clearly recognized the power of the respective states to regulate the status of employer and employee, and to enforce the public policy of the state, as it relates to workmen's compensation for employees engaged in interstate or foreign commerce — except where the United States has a different rule. See Ocean Accident & Guarantee Corp. v. Industrial Comm., supra; Alaska Packers Ass'n v. Industrial Accident Comm., 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044; Industrial Commission of Wisconsin v. McCartin, 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140, 169 A.L.R. 1179; Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028; Pacific Employers Ins. Co. v. Industrial Accident Comm., 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940; Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532; Industrial Indemnity Exchange v. Industrial Accident Comm., 80 Cal.App.2d 480, 182 P.2d 309; and see generally Stumberg, Conflicts of Laws, ch. 7, p. 212 et seq., also Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149, 150 A.L.R. 413, a case whose effect has been greatly limited by subsequent decisions. The status of employer-employee in the instant case.admittedly arose in the first instance in the state of Arizona and thus was regulated by Arizona law. The facts here, as found by the commission, show that the contracts were required by the employer as a condition of employment and were made solely to avoid the payment of premiums to the Arizona fund. The plaintiff’s order did not in any way purport to prohibit the parties to the contracts from taking advantage of the California Work men’s Compensation Act. No question of “full faith and credit” is presented by this appeal, for what is here determined is simply that the status which was created in Arizona cannot by contract of the parties, even though made without the state, terminate, under these circumstances, the status in which the state of Arizona is an interested third party.' The wisdom of this extra-territorial coverage under the workmen’s compensation law and the question of whether it creates an onerous burden on the employer by requiring it to pay premiums in two states and the fact that it may have repercussions beyond state lines are legislative matters beyond our province. Plaintiff contends that it not only is entitled to the premiums sued for but in addition thereto is entitled to a penalty of ten times the amount of premiums due as provided under section 56-977. This court at various times has condemned certain devices adopted by employers to escape the public policy of the state regarding workmen's compensation as reflected in its constitution, statutes, and decisions. See Ocean Accident & Guarantee Corp. v. Industrial Comm., supra; Red Rover Copper Co. v. Industrial Comm., supra; Whipple v. Industrial Commission, 59 Ariz. 1, 121 P.2d 876; and Industrial Commission v. Meddock, 65 Ariz. 324, 180 P.2d 580. It should be noted that in the instant case, as distinguished from some of the others, there was no secretive attempt to evade the Arizona law; the acts were done openly in an attempt to legally avoid the provisions of Arizona's Workmen's Compensation Act pertaining to the payment of premiums. From the correspondence between the parties, which appears in the file, it is obvious that a foundation was laid for a test suit and that there was no misrepresentation on the part of defendant as to its payrolls, hence we hold that plaintiff is not entitled to the penalty, for it would be manifestly inequitable for it to be permitted under the circumstances to recover a penalty of ten times the amount of premiums claimed due. For this reason it is unnecessary to pass upon the related question as to who has the right to recover such penalties, the attorney general in the name of the state, or the commission, sec. 56-977. The crux of the matter here presented hinges on the jurisdiction of the commission to enter its order of January 15, 1950, determining the “status” of the 25 employees in question.' Defendant vigorously challenges the power or authority of the commission to hold the hearing (which defendant requested) and to make the order determining the amount of insurance premiums due it for wages paid in California. Defendant argues that the commission “exceeded its lawful jurisdiction, and such order and the proceedings leading thereto are null and void. Such proceedings and order do not bind an employer or constitute competent evidence in an action to recover premiums.” On the other hand it is the contention of plaintiff that the commission had the duty, in order to protect the state insurance fund, to collect premiums on the wages of employees hired in Arizona, though their work was to be performed without the state, so that funds would be available to meet the contingent liability imposed under Arizona law for injuries that might be received by such employees. West Chandler Farms Co. v. Industrial Commission, 64 Ariz. 383, 173 P.2d 84. (It seems that Arizona’s compensation law is more generous in its terms than that of its neighboring states and that the commission is anticipating that an injured employee will elect to accept benefits under Arizona’s Act to which he is lawfully entitled.) The plaintiff further maintains that its order was validly entered, became res judicata and could not be collaterally attacked by defendant in this proceeding. There can be no doubt as to the commission's right to issue "orders", which term is defined by section 56-930 as follows: "`Order' shall mean and include any rule, regulation, direction, requirement, standard, determination or decision of the commission * * *." and such orders are subject to court review, sec. 56-914. A partial list of cases from this jurisdiction involving "orders" entered by the commission, or its right to enter same, include the excellent case of Holmes v. Osborn, 57 Ariz. 522, 115 P.2d 775; and Industrial Commission v. Meddock, supra; Gene Autry Productions v. Industrial Commission, 67 Ariz. 290, 195 P.2d 143; Haggard v. Industrial Commission, supra, and O'Neill v. Martori, supra. Apparently our recent decision in the last mentioned case has been the cause of some confusion as strangely enough both parties partially rely upon it to support diametrically opposed positions. We therefore feel it necessary to clarify the final holding which reads: “The Commission having exceeded its jurisdiction in issuing the ‘orders’ in question, the lower court’s judgment vacating and setting them aside was in all respects proper.” [69 Ariz. 270, 212 P.2d 998.] (Emp. sup.) In that case we were dealing with several orders and findings of the commission, i. e., (a) whether certain truckers and other persons were employees of Martori Bros, or were independent contractors, (b) amount of premiums due the commission and .(c) summary orders amounting to a “writ of execution” suspending the benefits of the policy until its orders were complied with. In that case timely steps were taken to obtain a court review of the lawfulness and reasonableness of such orders. The case was submitted upon the record made before the commission; and the trial court, as it had a right to do, upon the evidence before it, reached a conclusion differing from that of the commission as to (a) and (b) supra, and correctly determined that the orders under (c) were void as being entered without jurisdiction. It therefore set all of the “orders” aside. In sustaining its judgment we inadvertently used the language above quoted which implies that the commission was without jurisdiction to issue any of the orders under review, when in fact the statement as to lack of jurisdiction was intended to apply only to those orders under (c) having to do with the summary method for collection of premiums without suit. In all other respects we reaffirm the decision rendered in the Martori case. We hold that the commission had jurisdiction to enter the order in question here and since no timely direct attack was made thereon by defendant in the manner prescribed by section 56-914, the order became res judicata and was not subject to defendant’s collateral attack. The trial court erred in not accepting the conclusive showing made by the commission and in failing to enter judgment for it. The judgment is reversed with directions to enter judgment for plaintiff as prayed for except as to the claimed penalties. Judgment reversed with directions. STANFORD, PHELPS, DE CONCINI and LA PRADE, JJ., concur.

PER CURIAM. This is an appeal from a judgment entered in favor of appellees on appellants’ cross-complaint, and from an order denying appellants’ motion for a new trial. The facts are that appellees were on February 21, 1947, and prior thereto, the owners of: The South Half of the Southeast Quarter of the Southwest Quarter of the Northwest Quarter of Section Fourteen, Township One North, Range Three East of the Gila and Salt River Base and Meridian; except therefrom the North 50 feet of the East 180 feet. For several years prior to that date, appellants (Wilsons) had been renting said premises from appellees (Methenys) at a monthly rental ranging from $17.50 to $25 per month. The rental agreement was at first on a month to month basis and later on a yearly basis with the rents payable monthly. On February 21, 1947, appellants and appellees entered into a verbal agreement whereby appellants leased the above described premises from appellees for a period of one year beginning March 1, 1947, and ending March 1, 1948. There was also included in this agreement an option to purchase the premises from appellees provided the option was exercised by appellants at any time within the year. The purchase price of the property was fixed at $5,000 and the rental at $300 per annum which, in the event of purchase was to be applied upon the purchase price, leaving a balance of $4,700 due to appellees from appellants. This agreement was reduced to writing on the following day and signed by Elves W. Metheny (husband) and the appellants. Ruth Metheny (wife) did not sign the written agreement although according to appellants’ testimony she was present at the time the verbal agreement was entered into and actively participated in the negotiations leading up to the agreement. She personally suggested the inclusion of the option to purchase in the written lease agreement. She likewise suggested that inasmuch as the following day was a legal Tioliday, that they procure the services of a notary public with whom appellees were acquainted. This was done the following morning at the home of the notary public under the direction of Elves W. Metheny and Newton E. Wilson. The evidence was to the effect that Ruth Metheny was absent from this meeting because of a call upon some relative. Subsequently thereto and on January 22, 1948, the city of Phoenix instituted an action in the superior court of Maricopa county to condemn the property in question together with a number of other parcels of land in that vicinity for use in the enlargement of the Phoenix airport. The land here involved was designated in that action as Parcel 13, and will be hereafter so designated in this opinion. Both appellants and appellees were made parties defendant in the condemnation proceedings. Appellants had been negotiating with the city in an attempt to agree upon the price to be paid by the city for the premises in question and immediately upon being served with a complaint, filed their answer in the condemnation proceedings. Appellees did not file their appearance in the action until March 22, 1948. In their answer they alleged they were the owners in fee simple of Parcel 13 and that appellants had no interest whatever therein. On April 22, 1948, appellants filed a cross-complaint in the condemnation proceedings against appellees who were co-defendants in the action, setting up their lease and option to purchase and alleged that they had duly exercised their option and further alleged in substance that they had fully performed their part of their contract with appellees by paying to them the sum of $300 and notifying them of their election to exercise their option to purchase. They further alleged a tender of the balance of $4,700 to appellees; that said tender had at all times been kept alive and that the remainder of the funds due to appellees were then available at the Phoenix Title & Trust Company, to be paid to them upon their executing proper conveyance to the premises. Appellants (purchasers) further alleged in substance that relying upon their contract with appellees they had changed their position to their damage in giving up their plans to move elsewhere, by devoting their time in endeavoring to reach an agreement with the city on the price to be paid for the premises involve d and in employing counsel to defend them in the condemnation action brought by the city. They prayed that appellees (sellers) be required by the court to execute proper instruments of conveyance to appellants covering said premises and that they be required to accept $4,700 in full payment of the purchase price of said property. At the close of appellants’ case, upon motion of appellees for an instructed verdict, the trial court ordered the case be-withdrawn from the jury and that appellants’ cross-complaint against appellees be dismissed; that judgment be entered for appellees and against appellants. It is from this order and judgment, and from the order denying appellants’ motion for a new trial that this appeal was taken. Appellants assign as error (1) the ruling of the court on appellees’ motion for an instructed verdict, and (2) the rejection, by the court, of evidence tending to show appellants’ change of position to their damage as the result of their reliance upon the contract with appellees. We have reached the conclusion that the trial court was clearly in error in dismissing the cross-complaint at the close of appellants’ evidence. We think there is sufficient in the record to warrant an equitable estoppel as against Ruth Metheny in that the evidence before the trial court, which must be considered as true in a determination of the motion for an instructed verdict, shows that she was the one, during the negotiations between the parties, who suggested the option contract and its terms-She also suggested that instead of ha-ving a lawyer draw the contract, a notary public with whom appellees were acquainted be asked to prepare it. The Wilsons were not. acquainted with him. Upon being informed by Wilson that the city might purchase a 120-foot strip of land off of Parcel 13 she stated during the consummation of the v.err bal agreement that in the event the city should decide to purchase a portion of the premises that she would come to Phoenix upon receipt of information and sign the papers. It was then agreed that if the 120-foot strip of land was purchased by the city that the proceeds of sale should go to appellees as a part of the purchase price agreed to be paid by appellants. She at no time withdrew her authority to sell. She knew or as a reasonable person should have known appellants were trying to sell either the whole or a part of the premises. She accepted and enjoyed with her husband rentals of $300 paid during the year which she knew, under the terms of the written lease and option, were to be applied upon the purchase price of the premises in the event appellants exercised their option to purchase. Under the law the lease-option in question violates the statute of frauds yet appellees have recognized its validity although the lease and option to purchase are incorporated in the same written instrument. . Relying upon their verbal agreement with appellees, the Wilsons abandoned their plans to move elsewhere and began negotiating with the city for the sale of the land in question and employed counsel to defend them in the action brought by the city to condemn this particular property. Appellants executed a note for $300 at the time the contract was executed, the due date of which was fixed at July 15, 1947, which was fully paid on October 10th to be applied as above pointed out. The negotiations of appellant Newton E. Wilson with the city of Phoenix ultimately resulted in the sale to it of Parcel 13 for the sum of $8,000. Up to the present time appellees have not repudiated that sale but on the other hand have fully assented to it and are here now seeking to reap the benefit of appellants’ efforts. Appellants employed counsel and immediately filed their answer in the condemnation proceedings brought by the city, thus incurring necessary expense in protecting their rights under the option contract. This all occurred during the life of the written lease and option in evidence in the case. Under these circumstances the evidence submitted by appellants must be considered most strongly against appellees. Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201; Gallaway v. Smith, 70 Ariz. 364, 220 P.2d 857. We therefore hold that upon the record thus presented all of the elements of an equitable estoppel had been proved. While counsel deyoted their briefs exclusively to the question of estoppel, it is interesting to note that the cross-complaint filed by appellants against appellees contains all of the essential elements required in an action for specific performance. They alleged and proved complete performance of their part of the contract with appellees. They not only paid the $300 rental provided for in the contract but within the time .provided therein they placed the remainder of the purchase price of $5,000, to wit, $4,700, with the Phoenix Title & Trust Company and notified appellees of its availability to them upon the execution by appellees of proper instruments of conveyance which, under the circumstances, was all the law required of them to effect a valid tender. 49 Am.Jur., Specific Performance, Sec. 146. It could not be expected, as counsel for appellees suggest, that appellants would be required to go to Stockton, California, and personally pay the money to appellees. The person who drafted the lease and option contract was chosen by appellees, and the contract was drawn under the direction of Elves W. Metheny. No place was provided in the contract where the money was to be paid. The Phoenix Title & Trust Company is a reputable business concern engaged in the performance of that character of business, hence the tender through it was sufficient. It is the law in this state that either part or full performance of an oral contract takes it out of the statute of frauds. In the case of Condon v. Arizona Housing Corporation, 63 Ariz. 125, 160 P.2d 342, we held that where a person goes into exclusive possession of real property under an oral contract of purchase (the purchase price in that case being $5,200 to $5,500) and pays the installments provided in the contract as they become due and makes improvements to the extent of $250 in building a fence and installing Venetian blinds, such part performance takes the contract out of the statute of frauds, and that specific performance of such contract would be enforced, quoting from Latimer v. Hamill, 5 Ariz. 274, 52 P. 364. We reaffirmed this rule in Huish v. Lopez, 70 Ariz. 201, 218 P.2d 727. In that case we cited with approval Restatement of the Law, Contracts, Sec. 197, which reads: “Where acting under an oral contract for the transfer of an interest in land, the purchaser with the assent of the vendor (a) makes valuable improvements on the land, or (b) takes possession thereof or retains possession thereof, existing at the time of the bargain, and also pays a portion or all of the purchase price, the purchaser or the vendor may specifically enforce the contract.” (Emphasis supplied.) As pointed out above, however, according to the evidence before the court at the time the motion for a directed verdict was ruled upon, appellants had fully performed their contract in the instant case by paying or tendering to appellees the full purchase price of the premises. This was done in strict compliance with the oral contract with both appellees on February 21, 1947, and with the written contract bearing the same date (but actually executed on February 22, 1947) and signed only by Elves W. Metheny and appellants. This question has been before us many times and in the case of Sullivan v. Townsend, 30 Ariz. 63, 243 P. 913, we held that while the oral contract was within the statute of frauds, by full performance on the-part of one of the contracting parties it was taken without the operation of the statute and in that case we required the other contracting party to specifically perform. To the same effect is Waddell v. White, 51 Ariz. 526, 78 P.2d 490; Norton v. Steinfeld, 36 Ariz. 536, 288 P. 3; and In re Gary's Estate, 69 Ariz. 228, 211 P.2d 815. See also 18 Pacific Digest, Frauds, Statute of ®=>139(1) etc. We have considered the provisions of Section 71-409, A.C.A.1939, providing that; “ * * * A conveyance or incumbrance of the community property shall not be valid unless executed and acknowledged by both the husband and wife * * While an option to purchase is. not a conveyance it is an agreement to convey in the event the option is exercised and under the law is required to be in writing. Ruth Metheny joined with her husband in-the verbal agreement giving appellants an option to purchase which was incorporated, in the written lease signed only by her husband. She may not now be heard to say that she did not join her husband in the-execution of said contract. Even in the ab sence of estoppel, when properly plead and proved equity will enforce specific performance of such a contract where the other contracting party has fully performed. We therefore hold that the trial court erred in taking the case from the jury, for the reasons above stated. This position is further fortified upon the ground that appellants were entitled to specific performance of their contract with appellees for the reason that according to the evidence then before the trial court they had completely performed all and every part of said contract provided therein, by them to be performed. Judgment reversed and cause remanded for a new trial in conformity with the principles herein set forth. LA PRADE, J., being disqualified, the Honorable LEE GARRETT, Judge of the Superior Court of Pima County, was called to sit in his stead.

LA PRADE, Justice. Appellees filed motion to dismiss the appeal on the ground that the same was not taken within sixty days from the entry of judgment as provided for in Rule 72, as amended, effective April 1, 1950, Sec. 21-1801, A.C.A.1939, Cum.Supp. It appears from the record that judgment was entered on December 7, 1950. On January 31, 1951, appellants (defendants below) filed with the clerk of the court their motion for a new trial on the ground of newly discovered evidence. At the time of filing this motion, they also filed a notice to the effect that they “will present their motion for a new trial based on an affidavit, copies of which are hereto attached * * * on February 6, 1951.” On the day noticed, February 6, appellees (plaintiffs below) filed their objections to the motion for new trial, the objection being on the grounds “I “That the motion was not made within ten days after rendition and entry of judgment herein; “II “That the leave of the Court was not obtained before the filing of said motion, nor at all, nor has any notice to obtain leave of Court to file such motion been served on Plaintiffs or their attorney, but Defendants filed motion and gave five days’ notice without obtaining authority of Court or leave of Court so to do; “III “That the Court does not have jurisdiction to entertain at this time a motion or any motion for new trial since the time for appeal given by the law has expired or will expire before notice of motion could be given;” On February 6, 1951, being the day notice for hearing of the motion for new trial, the court heard same at which time the court reserved its ruling on the objections to the motion and took same under advisement. On April 10, 1951, the court made the following order: “ * * * that the procedure followed by the Defendants zoas not in accordance with the lazo in such cases made amd provided, and that the newly discovered evidence upon which Defendants seek a new trial in effect would tend only to contradict or impeach some of the witnesses, and that the newly discovered evidence is in effect accumulative in its character and nature. It Is Hereby Ordered, Adjudged and Decreed that said Motion for a New Trial in said matter be, and the same is, hereby denied.” (Emphasis supplied.) Notice of appeal was filed on June 9, 1951. By the provisions of Rule 72, as amended, supra, Sec. 21-1801, the time for appeals is extended by a timely motion for a new trial and the time for appeal commences to run and is to be computed from the entry of the ruling or order upon a timely motion. The time and manner of making motion for new trial is provided in Rule 59(b). Section 21-1305, A.C.A.1939, reading as follows: “A motion for a new trial shall be served not later than ten (10) days after the entry of the judgment, except that a motion for a new trial on the ground of newly-discovered evidence may be made after the expiration of such period and before the expiration of the time for appeal, with leave of court obtained on notice and hearing and on a showing of due diligence.” (Emphasis supplied.) In order to determine whether appellants’ motion for new trial was timely filed, we have had recourse to Moore’s Federal Practice under the New Rules. In treating this problem under Rule 59(b), we quote from the treatise : “ * * * A motion for a new trial (including one based on the ground of newly discovered evidence) can be made as of right, when served not later than 10 days after the entry of the judgment. After such period has expired a motion for new trial can be made only on the ground of newly discovered evidence, and then only on leave of court obtained on notice and hearing and on a showing of due diligence. The reason for this limitation is to prevent a motion for new trial to be used in a dilatory manner and for the purpose of extending the time for appeal. The times provided for in Rule 59(b) cannot be enlarged.” (p. 3250) ' The effect of a motion for new trial or absence thereof on appeal is treated in the same treatise Vol. 3, p. 3251, as follows: “When a motion for new trial is made the. appeal time stops running and starts anew when such motion is disposed of. (Citing cases.) But the motion had only such an effect if duly and seasonably filed. (Citing cases.) Since, therefore, the ordinary motion for a new trial must be made not later than ten days after the entry of judgment, its possible dilatory use'is extremely limited. The motion for a new trial on the basis of newly discovered evidence made after the ten day period presents greater possibilities for dilatory use, however, since it can be duly and seasonably made within appeal time. To prevent a party from possibly doubling appeal time by this device the Committee inserted in the exception to subdivision (b), supra, the requirement that such motion be filed ‘with leave of court obtained on notice and hearing and on a showing of due diligence.’ In other words, a motion for new trial, no matter what the basis, made not later than ten days after the entry of judgment, can be served and filed as of right (citing cases) and automatically stays the running of appeal time. But the motion for a new trial on the ground of newly discovered evidence made after the ten day period and within appeal time cannot be served and filed as of right; it can only be made by leave of court after notice and hearing. Only then will it stop the appeal time from running.” We concur in this analysis of the rule. Applying the rule, as thus analyzed and interpreted, to the facts in the instant case, it appears that the motion for new trial was not filed with leave of court after notice and hearing. The defendants filed their motion for new trial as though they had a right to file it. Their notice to the effect that they would present it on February 6, 1951, was also under the theory that they had a right to notice the motion. Ordinarily the time for appeal would have expired on February 5, 1951 (Judgment, December 7, 1950). The motion for a new trial not having been made within the ten-day period following entry of judgment, it could only have been made “with leave of court obtained on notice and hearing and on. a showing of due diligence” all of which would have had to have occurred before February 6, 1951. We believe it advisable to point out to the bench and bar that it appears attention must also be given to the time element provided for in Rule 59(c), Sec. 21-1306, if a new trial is sought by motion to be filed with leave of court after the expiration of the ten-day period provided for in Rule 59 (b). Rule 59(c) reads as follows: “When a motion for new trial is based upon affidavits they shall be served with the motion. The opposing party has ten (10) days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding twenty (20) days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.” It would appear that if the application for leave to file a motion for a new trial on the ground of newly discovered evidence is supported by affidavits, then the opposing party will have ten days in which to file counter affidavits to the motion. If this procedure is to be followed, then the motion for leave to file must be filed and noticed within sufficient time to give opposing counsel the ten-day period within which to file such affidavits. The period within which counter affidavits may be filed thus shortens the period of time within which the motion for leave to file must be filed. This situation is comparable to the one we discussed in Sweeney v. Winslow Gas Co., 64 Ariz. 51, 165 P.2d 316, where it was pointed out that by Rule 73(g) the record on appeal must be transmitted within forty days from filing notice of appeal, and if the entire record is not designated for transmittal to the Supreme Court then by Rule 75(a) the appellee has ten days within which to serve and file a designation of additional portions of the record. We pointed out that in order not to deprive the appellee of the right to request additional portions of the record within ten days, it was necessary not to delay the service of the designation of the record on appeal beyond the thirtieth day after notice of appeal. By adopting the procedure that defendants did in filing their motion for new trial after the ten-day period had expired without leave of court and- getting the court-to finally rule on it on April 10, 1951 they have attempted to more than double the time within which an appeal might be taken. To prevent this dilatory device, the rule requires that the trial court must rule upon the motion for leave to file which ruling must be made within the sixty-day period within which an appeal may be perfected. It may be that the appeal period may be extended as where the court grants leave to file a motion for new trial after the ten-day period and within the sixty-day period and then takes some time beyond the sixty-day period within which to rule upon the motion for new trial which was timely filed with leave of court. The motion for new trial in the instant case not having been filed as a matter of right within the ten-day period and having been filed without leave of court within the sixty-day period within which appeals may be taken, it therefore appears that there was no motion for new trial legally filed. No motion for new trial having been filed that could be considered, there was no tolling of the time within which an appeal might have been perfected. It therefore follows that the motion to dismiss is well taken and it is ordered that the appeal be and the same is hereby Dismissed. UDALL, C. J., and STANFORD, PHELPS and DE CONCINI, JJ., concur.

UDALL, Chief Justice. Appellant, Thomas B. Bradley, hereafter called defendant, was charged by information with the crime of rape, a felony, alleged to have been accomplished by force and violence upon the person of (name omitted), hereafter called prosecutrix. He was tried before a jury which found him guilty. After denial of his motion for a new trial, judgment was entered and a sentence of five to seven years in the state penitentiary was imposed. This appeal followed. There are some ten assignments of error that can be readily grouped as follows, viz.: (a) sufficiency of evidence to support the verdict, (b) error in court’s instructions to the jury, (c) evidentiary matters, and (d) form of verdict used. These assignments will be treated in that order. Sufficiency of Evidence to Support Verdict At the trial defendant, a 28 year old married man, took the stand in his own behalf and admitted the act of sexual intercourse. He claimed however, that it occurred with the consent of the prosecutrix. Since under an assignment of this nature each case must be decided upon its own facts, we do not think it necessary to detail the evidence. It would have no value as a precedent and would merely encumber the reports with a quantity of salacious matter. The prosecutrix, a 20 year old unmarried girl, who had met defendant for the first time that same evening, testified that the sexual act was accomplished against her utmost resistance. Construing the evidence in the light most favorable to sustaining the verdict, the evidence adduced by the State discloses that the act occurred on the desert away from human habitation, hence it would have been useless for the prosecutrix to call for help. The prosecutrix testified that defendant who was partially intoxicated, after refusing to take her home when repeatedly requested to do so, twisted her arm and threatened to break it if she did not sub mit to him. While the two were struggling, defendant stated, “I am going to have you tonight if I have to knock you out and beat you up to do it.” According to her testimony she “was scared of him, afraid he would kill me.” She testified also that he forced her back into the car several times when she tried to escape and walk the 15 miles back home, and that finally she became “practically exhausted”, although she resisted his advances to the limit of her strength until finally overcome by sheer physical force. Other facts, later referred to, such as her promptly reporting the assault to her sister and then to the officers, as well as the medical testimony and admissions by defendant to the county attorney, corroborated her testimony. While there is somewhat of a conflict in the evidence, the jury as triers of fact, evidently believed her testimony, and it is our opinion that the evidence amply sustains their verdict. Instructions Defendant assigns as error, the action of the trial court in modifying a certain instruction pertaining to whether or not the act was against the will of the complaining witness. The defendant requested the court to instruct the jury that they must find “she did everything she could to prevent the said act” or find the defendant not guilty. The court modified this instruction by adding the qualifying words “under all the surrounding circumstances”. Defendant complains that the modification of the instruction “authorized the jury to consider all the circumstances, from the very beginning of the association as bearing upon the alleged assault * * *• and tends to incriminate him, however innocent and inoffensive his conduct was at any time previous to the claimed assault.” The answer to this illogical reasoning is that as a matter of law, the jury were entitled to consider all of the circumstances occurring that night prior to the alleged assault. Defendant also complains of the rejection of his cautionary instruction which warned the jury of the danger which is afforded in cases of rape for the free play of malice and private vengeance. Defendant’s authority for the requested instruction was People v. Benson, 6 Cal. 221, 65 Am.Dec. 506. Certain dictum in the case, which applied to a totally different set of circumstances than that related in the instant case, was paraphrased and warped to fit the ends of defendant, and as thus changed was offered to the trial court as an instruction upon the law governing the instant case. Not only was the lower court correct in rejecting the proffered instruction, but it would have been error for the court to have given it. Furthermore, in the instant case there was no evidence introduced during the course of the entire trial upon which the court could have properly predicated an instruction pertaining to malice and private vengeance. It is true that the defendant was entitled to have the court give a cautionary instruction, hut this was done. The following is the excellent instruction, requested hy defendant, which was given by the court: “The Court instructs the jury that a charge such as that made against the defendant in this case is one which, generally speaking, is easily made, and once made is difficult to disprove, even if the defendant is innocent. From the nature of a case such as this, the complaining witness and the defendant usually are the only witnesses. Therefore I charge you that the law requires that you examine the testimony of the prosecuting witness with caution.” Evidentiary Matters Less than 12 hours after the alleged assault the defendant was arrested and brought to the court house where he was interrogated at length by the county attorney. A court reporter was present and took down the questions and answers. These stenographic notes were transcribed and at the trial, as a part of its case in chief, the State offered the transcript in evidence. This general offer was refused but the court did permit such questions and answers to be read to the jury as it determined were unobjectionable. Counsel now claims the court erred in overruling his objections to many of these extraju.dicial statements. Certain of this evidence, it is claimed, was incompetent and prejudicial in that it tended to degrade the accused. We have carefully read all of the testimony complained of but do not consider it necessary to set same forth in detail as it would only unduly extend the opinion. The statements were freely and voluntarily made. The interrogation was actually in two parts, and the story defendant first told was different from that he shortly thereafter related when the' county attorney rather pointedly remarked that he was not telling the truth. While it falls short of a confession of guilt many damaging admissions against interest are contained in the questions and answers admitted into evidence. We are of the opinion that the trial court did not err in the admission of this testimony nor did the prosecutor go outside legitimate bounds in his vigorous interrogation of defendant. See State v. Romo, 66 Ariz. 174, 185 P.2d 757, for the rule distinguishing between a confession and an admission against interest. The defendant next assigns as error the court’s denial of his motion to strike a statement made by the prosecutrix in her direct examination to the effect that the defendant had told her he had been divorced for six weeks. We see nothing prejudicial to defendant in the admission of this testimony, particularly since the defendant himself admitted that such a statement, though false in fact, was actually made to the prosecutrix. This evidence was merely a minute and inconsequential part of the conversation that oc curred during the evening. We quite agree with defense counsel’s admission that the crime charged would be no greater or less if defendant were or were not divorced. Defendant also contends that the court should not have permitted Dr. Robert L. Moore, a specialist in obstetrics and gynecology, to testify, over his objection, as to the condition of the genital organs •of the prosecutrix on the morning after the offense occurred. The latter was taken to the doctor for a physical examination by a deputy sheriff at 6:30 a. m.—a few hours after the intercourse. The basis for defendant’s assignment of error is that this, evidence was immaterial inasmuch as counsel for defendant, when the doctor was called as a witness, in open court before the jury, admitted that the act of intercourse took place, but claimed that it was by mutual consent. Defendant claims that the testimony of the doctor would not throw any light on whether or not the act of intercourse occurred without the prosecutrix’ consent. A careful reading of the doctor’s testimony refutes this unsound contention and establishes beyond doubt that the doctor’s testimony had a great deal of probative value. It substantiates the testimony of the prosecutrix that she was a virgin at the time the intercourse occurred and indicates the great unlikelihood of the prosecutrix having given her consent under such circumstances to defendant, a stranger she had just met. Among other matters the doctor testified: “ * * * She was mentally disturbed, emotionally disturbed * * *. The hymeneal ring had been ruptured or lacerated very recently. There was slight bleeding. There was considerable fluid material in the vagina * * *. That she was a virgin prior.” Further, a laboratory test of a specimen from the vagina showed “actively moving spermatozoa”. This assignment is wholly without merit. Finally, as to the evidentiary phase of the case, the defendant assigns error as to the court’s refusal to permit him to introduce into evidence—for impeachment purposes—testimony given by the prosecutrix at the preliminary hearing. We have carefully examined the transcript on this point and consider the assignment to be without merit. The court did permit defense counsel to ask the prosecutrix if specific questions had not been asked her at the preliminary hearing and certain answers there given and she gave an affirmative answer. Counsel for the State objected that this testimony was not contradictory of the evidence she had just given and hence was not impeaching and the court sustained the objection. However no motion to strike was made hence these. questions and answers are a part of the record. The trial court then properly Refused to encumber the record by permitting defense counsel to read the balance of the transcript to the jury to establish that as a part of her testimony given at the preliminary hearing she did not explain why she had not yelled or screamed for help. Verdict The verdict submitted to and returned by the jury reads as follows: “We, the Jury, duly empaneled and sworn in the above entitled action, upon our oaths, do find the defendant guilty of the crime of rape (compulsory) a felony, as charged in the Information.” Defendant now contends that the inclusion of the word “compulsory” therein causes the form of verdict to conflict with the issues tried, i. e., that the verdict was not responsive to nor did it cover the offense charged in the information. While we cannot understand why the prosecutor used the word “compulsory” twice in the information, nor why the trial court permitted it to creep into the verdict—it had no place in either-—-still its inclusion could not have been misleading. According to standard dictionaries the word compulsory means “involuntary or forced” in contradistinction to voluntary. See Black’s Law Dictionary (3rd ed.) and Webster’s New International Dictionary (2d ed.). Furthermore, any possible doubt as to its meaning, as used in the instant case, was resolved when the court in its instructions stated: “The information charges the crime of rape, compulsory rape, 'forcible or compulsory rape and I will read the statutes of the State of Arizona insofar as applicable, defining the crime of rape (Pertinent provisions of the statute 'followed).” (Emphasis supplied.) Conclusion A careful reading of the entire transcript shows that there could not be the slightest doubt that the jury properly found defendant guilty as charged. He received an eminently fair and impartial trial. Judgment affirmed. STANFORD, PHELPS, DE CONCINI and LA PRADE, JJ., concur.

DE CONCINI, Justice. This is an original proceeding for a writ of prohibition brought by petitioner C. L. Lane as Superintendent of the Motor Vehicle Division of the Arizona State Highway Department against respondent, the Honorable Fred C. Struckmeyer, Jr., Judge of the Superior Court of Maricopa County. Petitioner served on five alleged motor carriers, hereinafter referred to as “carriers”, Reid Smith, A. G. Weaver, Ernest Garrison, W. L. Wahl, and Max W. Bronson, a “Notice to appear and be heard in the matter of the assessment of motor carrier tax” pursuant to sections 66-518 and 66-520, A.C.A. 1939, tentatively assessing to each “carrier” certain sums allegedly due the State of Arizona under those sections together with the penalties thereon. Section 66-518, supra, provides in part: “66.518. License tax—Determining gross receipts.—In addition to all other taxes and fees every common motor carrier of property and every contract motor carrier of property shall pay to the state, on or before the fifteenth day of each month, a license tax of two and one-half (2y%) per cent of the gross receipts from his operations within this state for the next preceding calendar month, as such carrier, * * Section 66-520, supra, provides for a twenty-five per cent penalty to be added to any tax not paid on or before the day prescribed for the payment thereof, and further: “* * * * Upon the failure of any motor carrier to pay said license tax, the superintendent shall inform himself as best he may, and fix the amount of such license tax due the state from such motor carrier for such calendar month, and such tax, so fixed by him shall be the tax due to the state from such motor carrier; * * The notice complied with the statute in that it set a date some three weeks in advance at which time the alleged carriers could appear before the superintendent should they wish to be heard in the matter of such assessment. Before the date set for the hearing, the “carriers” filed a suit in the superior court of Maricopa county seeking a writ of prohibition against petitioner herein, to enjoin him from proceeding with said hearing. Petitioner answered and alleged that respondent did not have jurisdiction over the subject matter of the action. Respondent, the trial judge below, overruled the plea to the jurisdiction, issued an al ternative writ of prohibition against petitioner’s proceeding with the hearing, and announced that he would try the cause on the merits of the issues presented by the pleadings. Petitioner now seeks to have this court prohibit respondent from trying the case on its merits. It is the contention of the peti tioner that under the laws of this jurisdiction and particularly under section 66-520, supra, the carriers are precluded from testing the validity of petitioner’s proposed assessment against them by the method which they have employed. The pertinent portion of sec. 66-520, supra, provides : “* * * No motor carrier upon whom a tax is imposed under the provisions of this act shall be permitted to test the validity thereof, either as plaintiff or defendant, unless such tax, together with all penalties thereon, shall have first been paid to the superintendent. No injunction shall issue from any court against the superintendent to prevent or enjoin the collection -of ’ such license tax. After payment, an action may be maintained to recover any tax illegally collected. * * *” The writ of prohibition issued by respondent is in the nature of an injunction and, therefore, petitioner claims that it violates sec. 66-520, supra. On the other hand the “carriers” contend they were not contract carriers subject to tax but that they were mere lessors of the trucks in question, and that section 66-520, supra, has no application to them. Whether the “carriers” were common or contract carriers and thus taxable under the statute is the question to be. determined in the last analysis; however, this court is not now faced with that question. The issue to be resolved here is the jurisdiction of the respondent court in prohibiting petitioner from proceeding under the statute. If respondent is without such requisite jurisdiction then prohibition will lie against it. Counsel for respondent set up four points for our consideration, however, we deem it unnecessary to consider all of them as a determination of the issue as heretofore set out will effect a complete disposition of the case. Respondent claims that it is within the jurisdiction of the superior court to judicially determine whether said “carriers” were or were not common or contract carriers and thus subject to the tax. Taking this statement out of context, it might well be true, for it seems almost obvious that such would be a proper subject for judicial determination by any court. Under the facts of the. instant case, however, respondent’s claim is groundless. We are here faced with a question of jurisdiction not in general, but under special statutes. Not only section 66-520, supra, governs, but also section 73-841, A.C.A. 1939. That section is part of our tax code and provides: “73-841. Contest of taxes —Injunction—Recovery and refunds. No person upon whom a tax has been imposed under any law relating to taxation shall be permitted to test the validity thereof, either as plaintiff or defendant, unless such tax shall first have been paid to the proper county treasurer, together with all penalties thereon. No injunction shall ever issue in any action or proceeding in any court against this state, or against any county, municipality, or officer thereof, to prevent or enjoin the collection of any tax levied. After payment an action may be maintained to recover any tax illegally collected and if the tax due shall be determined to be less than the amount paid, the excess shall be refunded in the manner hereinbefore provided.” Those sections clearly indicate the well-established policy of this state to prevent the validity of a tax from being tested by injunctive means. That policy is based on the realization that to so permit injunction would be, at least temporarily, to emasculate all tax measures. The legislature has seen fit to prescribe the method by which the validity of tax measures may be tested, i.e.: By paying the tax, and bringing suit to recover it. No other means have been provided. This does not, however, give those whose duty it is to assess the taxes completely unfettered power. If a taxing official were to arbitrarily assess a tax against an individual who was patently not liable for the payment thereof, certainly no law would oblige that individual to pay the tax and then sue to recover it. In that case an injunction would lie, because the official had acted without semblance of authority. Such was the case in Nelssen v. Electrical District No. 4, etc., 60 Ariz. 145, 132 P.2d 632. In that case the plaintiff brought an action against an electrical district to enjoin it from further levying taxes against his property. After finding that the plaintiff's land was never a legal part of the district this court granted an injunction in plaintiff's favor, and on rehearing, reported in 60 Ariz. 175, 133 P.2d 1013, the court adhered to its original opinion and added: "* * * While the language of section 73-841 is very broad and comprehensive, it cannot well be construed as requiring a property owner to pay a claim for taxes, when there is no semblance of authority for its imposition, before he may defend against it. In Santa Fe Trail Transp. Co. v. Bowles, 62 Ariz. 177, 156 P.2d 722, 723, our court quoted the Nelssen case, supra, with approval and said: “If there is no semblance of authority for the imposition of the tax, then injunction will lie. If there is some semblance of authority for the imposition of such tax plaintiff’s remedy is to pay the tax under protest, then test its validity by suing for recovery of the amount so paid under said Section 73-841.” It must be conceded that the case of Crane Co. v. Arizona State Tax Commission, 63 Ariz. 426, 163 P.2d 656, 665, 163 A.L.R. 261, is somewhat inconsistent with those cases for in that' case the Tax Commission was enjoined from assessing or levying a tax against the plaintiff even though the commission was acting with semblance of authority. This court, in a divided opinion, held that an injunction was proper because payment of the tax under protest and suit for recovery would result in a multiplicity of suits, making the legal remedy inadequate. We make no denial that in the instant case it would be a great deal more expeditious as far as the “carriers” are concerned to allow prohibition to issue against petitioner. Assuredly the “carriers” are put to greater task in paying the tax and suing to recover same in what may prove to be a succession of suits. Be that as it may, section 66-520 is explicit in providing that, “* * * No injunction shall issue * * *” supra, and the fact that the burden of the “carriers” is apt to become heavier under this section, does not permit of its violation. The weight of “carriers” burden in this case becomes insignificant when thrown upon the scales of public benefit as opposed to the great harm that would result if injunction were allowed to stay the payment of taxes to the sovereign state. It should be noted in the Crane case, supra, the court stated: “In so holding, we do not mean to depart from the statements made in Santa Fe Trail Transp. Co. v. Bowles, [62] Ariz. [177], 156 P.2d 722. * * *” The Crane case notwithstanding, we hold the law to be as laid down in the Nelssen and Bowles cases, supra, that injunction will not lie to restrain the assessment of taxes imposed by law so long as the tax official acts with semblance of authority. Even without the sanction of those cases, section 66-520 is sufficiently clear in prohibiting taxpayers the remedy which they seek to employ. The alternative writ of prohibition is made peremptory. UDALL, C. J., and STANFORD, PHELPS and LA PRADE, JJ., concur.

UDALL, Chief Justice. The question presented by this appeal is whether under .the provisions of the Employment Security Act of Arizona, Ch. 124, 1941 Session Laws is the governing statute, real estate salesmen are employees of the real estate broker under whom they are licensed to operate. This action was brought by the Employment Security Commission of Arizona, plaintiff-appellee, under the provisions of sec. 56-1014 (a) (1) and (2), A.C.A.1939, as amended, to r¿cover from Jesse F. McClain, defendant-appellant, contributions, interest and penalties alleged to be due from defendant to plaintiff. From a money judgment for plaintiff, defendant appeals. For convenience the appellee will hereafter be referred to either as plaintiff or the commission and the appellant as defendant or broker. By stipulation of counsel at the pre-trial conference it was agreed that if any taxes and interest were found to be lawfully due the commission from defendant for the period (January 1, 1945 to February 19, 1947) that the correct amount of the principal tax was $1,193.45, with statutory interest thereon. Hence no question is now raised as to the specific amount for which judgment was entered. The commission, acting through a referee, held a formal hearing on April 19, 1946, for the purpose of making findings of fact upon which a determination could be made as to whether the services performed by a salesman constituted- employment by the broker within the meaning of the Act. On June 28, 1947, the commission by a unanimous decision held that such salesmen were “in employment” by the broker and therefore subject to the Act. It is agreed that the following findings of fact made at that time by the commission as a predicate for its decision substantially and correctly portray the modus operandi of the parties: “The salesmen are hired by the brokers under a verbal contract with no time limit specified either written or orally. The contract may be terminated at will by either party. The brokers provide. office space, telephone service and stenographic services for the salesmen. They also provide stationery and standard forms for taking a deposit on sales. Listings of property for sale may be obtained either by the broker or a salesman. Regardless of where the salesmen obtain their leads for a sale, they must pay the 'broker his commission. The usual commission is 50% to the broker and 50% to the salesman. A broker may enter into an additional agreement whereby a salesman may receive an additional 10% commission on a listing he has himself secured but which has been sold by another salesman. The 10% additional commission is paid half by the selling salesman and half by the broker. There are other minor deviations from the usual 50-50 division of profit from a sale. Services rendered by the broker such as provision of office space, telephone, advertising, etc., are paid from the broker’s portion of the profits. “All salesmen have access to and the right to sell any listing of the broker. No particular working hours -are required of the salesmen. Sales meetings are occasionally called 'but are not at specified intervals. The salesmen are not required to close their deals in the broker’s office but frequently do. Commissions usually come in the form of a check from the title company payable to the broker. The salesman’s commission may be paid to him immediately upon receipt of the title company check or placed in the broker’s office account and the division of commission made later from that account. If the broker makes a sale without any aid from a salesman, the entire commission goes to the broker. “A number of salesmen engage in other business activities such as accounting, managing auto courts, raising cattle, building, life insurance sales, engineering and one salesman is also a railroad steward.” No appeal was taken by the defendant, who with other brokers were parties to the foregoing proceedings, or by any other broker affected by the commission’s decision, under the provisions of sec. 56-1011 (b)(2), A.C.A.1939, Laws 1941, ch. 124, sec. 11, page 359. However, we deem it unnecessary to determine the legal effect of the failure to appeal inasmuch as the trial court in nowise based its decision upon that point, and it would- be unfair to those defendants in the other suits governed by this appeal who were not parties to that proceeding. The instant suit for the contribution tax claimed due from defendant was filed on June 19, 1947, and at the same time similar suits were brought against some twenty other respondent brokers. By stipulation it has been agreed that the findings, conclusions, and judgment of the court in the instant case shall be determinative of the liability (except as to amount due) of the defendants in the other twenty cases, who are represented by the counsel now appearing for the defendant in the instant case. In entering judgment for the commission the trial court expressly found that during the period (January 1, 1945 to February 19, 1947) the “salesmen were employees of the broker” and that the oral contracts of service “constituted a contract of hire and the compensation paid them in the form of commission constituted wages under the law.” The defendant makes but one assignment of error, which is to the effect that the trial court erred in its ruling that real estate salesmen came within the terminology of the Act, the legal proposition advanced in support of this assignment being: “A real estate salesman is a person who works for a commission contingent upon success. He is an independent contractor and is not performing services for wages or under a contract of hire within the meaning of the Act.” It should be noted that the Eighteenth Legislature amended the Employment Security Act by expressly stating the term “employment” shall not include: “(J) Service performed by an individual for a person as a real estate broker or a real estate salesman, if all such service performed by said individual for such person is performed for remuneration solely by way of commission.” Section 56-1002h, (e)(8)(J), A.C.A.1939, Ch. 24, 1947 Second Special Session Laws of Arizonia. This appeal, however, must necessarily be determined by the law in force at the time the commission conducted the hearing and made its decision that brokers were liable for a contribution tax on wages (commissions) paid its salesmen. The pertinent statutory definition of employment read: “‘Employment’ means any service * * * performed for wages or under any contract for hire, written or oral, express or implied.” Section 56-1002(i) (1), A.C.A.1939, Ch. 124, Laws of 1941. It is not necessary to set forth the “so-called” A-B-C exemption provisions under (i) (5) of the last cited section for the reason that both parties, in their briefs, agree that these exemption provisions have no application in that such salesmen were not excluded by the A-B-C tests. The courts have divided upon the question as to those who were covered by similarly worded unemployment compensation acts. One school of judicial thought adopted the view that the Act applied only to those who sustained toward each other the common law relationship of either master and servant or principal and agent, while the other adopted the view that it was intended by the lawmakers to, and the statutes defining “employment” did, enlarge the scope of that term and that it included many individuals who have otherwise been excluded from the benefits of the acts by the former concepts of master and servant and principal and agent as recognized by the common law. This court in the case of Sisk v. Arizona Ice & Cold Storage Co., 60 Ariz. 496, 141 P.2d 395, definitely rejected the common law concept of “employment” and aligned Arizona with the jurisdictions enlarging the scope of the term. See also First Nat. Ben. Soc. v. Sisk, 65 Ariz. 1, 173 P.2d 101. Whether real estate salesmen are employees of the real estate broker under whom they are licensed to operate is a question of first impression in this jurisdiction. There are but few reported cases precisely in point. The defendant, in support of his position primarily relies upon (a), three decisions from the supreme court of Washington that were handed down on April 13, 1945, viz.: Broderick, Inc., v. Riley, 22 Wash.2d 760, 157 P.2d 954; Curtis v. Riley, 22 Wash.2d 951, 157 P.2d 975; Coppage v. Riley, 22 Wash.2d 802, 157 P.2d 977; (b) two federal cases, viz.: Henry Broderick, Inc., v. Squire, 9 Cir., 163 F.2d 980; Dimmitt-Rickhoff-Bayer Real Estate Co. v. Finnegan, 8 Cir., 179 F.2d 882; (c) and two quotations appearing in our decision in the case of Southwest Lumber Mills v. Employment Security Comm., 66 Ariz. 1, 182 P.2d 83. An examination of the Washington decisions cited, as well as those that have subsequently been handed down by that court, in the main support the defendant’s position. There are, however, dissents and specially concurring opinions that indicate a badly divided court that appears to be experiencing difficulty in completely breaking away from the common law concept of master and servant. We concur with a statement of the supreme court of Oregon in Singer Sewing Machine Co. v. State Unemployment Compensation Comm., 167 Or. 142, 103 P.2d 708, 116 P.2d 744, 750, 138 A.L.R. 1398: “The two Washington cases cited in the opinion disclose an unsettled state of the law there.” As to the federal cases relied upon there is such a significant difference between the Arizona statute defining the employer-employee relationship and the Federal statute under which the Dimmitt case was decided as to deprive these cases of any value as an authority in the instant case. Furthermore even though these decision were upon an identical statute they would not be controlling upon us. In the Southwest Lumber Mills, Inc. case, supra, we quoted with approval a text statement defining “wages” appearing in 48 Am.Jur., Social Security, Unemployment Insurance, etc., sec. 14, the pertinent part reading: “ * * * The essential elements of ‘wages’ as defined in a state act have been stated to be that they form a direct obligation against the employer, in favor of the employee; then when the service is performed, the compensation, if any, accrues and becomes payable regardless of the success or failure of the undertaking; that any profits or earnings over and above costs of the service accrues to the employer, and any loss as a result of the undertaking or service must also be borne by him. * * * ” [66 Ariz. 1, 182 P.2d 89.] This statement on the meaning of “wages” is certainly not in harmony with the statutory definition contained in the Act which reads: “ * * * ‘Wages’ means all remuneration for services from whatever source, including commissions and bonuses and the cash value of all remuneration in any medium other than cash. * * *” Section 56-1002(n), A.C.A.1939, Ch. 124, Session Laws 1941. It also conflicts with the definition of wages as outlined by Justice Ross in the excellent opinion in the case of Sisk v. Arizona Ice & Cold Storage Co., supra, wherein this court quoted with approval from the case of Creameries of America v. Industrial Commission, 98 Utah 571, 102 P.2d 300. The type of services and the nature of employment, together with the source of remuneration for such employment, involved in the Southwest Lumber Mills case is clearly distinguishable from the type of service and source of remuneration involved in the instant case, and hence the decision in the former case did not depend upon the challenged quotation from Am. Jur. We therefore reaffirm the definition of “wages” contained in the Sisk case and disapprove as not being apropos, the statement quoted in the Southwest Lumber Mills case. We are of the opinion that when the law, as previously interpreted by this court relative to what constitutes “employment” and what is covered by the term: “wages”, is applied to the agreed facts im the instant case that the trial court was correct in holding that real estate salesmen were employees of the real estate broker under whom they were licensed to operate. Manifestly the salesmen, in selling to purchasers from which sales the defendant broker would obtain half of the commissions, were performing services for the defendant. The legal right to collect the commission on sales made by the salesmen was in the defendant .and not in the salesmen. The salesmen were bound to look to the defendant for their proportionate part of the commissions. The defendant was under obligation to pay the commissions to the salesmen. These commissions were necessarily paid for services rendered. The salesmen therefore were, as provided in the Act, performing services for “wages” which term includes commissions, for the defendant. Such was the holding in the following cases, interpreting similar statutes, and involving real estate brokers and their salesmen: Babb & Nolan v. Huiet, 67 Ga.App. 861, 21 S.E.2d 663; and Rahoutis v. Unemployment Compensation Commission, 171 Or. 93, 136 P.2d 426. Judgment affirmed. STANFORD, PHELPS, DE CONCINI and LA PRADE, JJ., concur.

PHELPS, Justice. This is an appeal from a judgment of the superior court of Maricopa County (1) from an order denying the objections of appellants to the form of judgment; (2) from the order denying their motions for a new trial; (3) for judgment notwithstanding the verdict; and (4) from their motions to strike appellants’ statement of costs. Appellant Industrial Research, Inc., is a corporation and will be hereinafter referred to as the company. In 1947 and up to the date of trial it was engaged in business in Phoenix consisting, among other things, of producing and selling upon the open market a flushing machine for use in connection with automotive and internal combustion engines. During the year 1947 appellee McDonald and co-appellant Paxton were employed by the company. In addition to being an employee of the company during this time Paxton was the owner of 25% of the capital stock and was vice president of the company. He is the inventor of, and has made application for a patent for the flushing machine produced by the company, as it was originally designed, and has since made some improvements upon it for which application for patents thereon have also been made. In November, 1947, Paxton assigned to the company all of his right, title and interest in and to the applications for patent made by him upon the original flushing machine and improvements thereon. About the middle of December, 1947, Paxton either became dissatisfied with his connection with the company or was in need of ready money and sold his interest in the company to a Mr. Crile for $3,500 and quit the employment of the company. McDonald also quit working for the company three or four days later and he and Paxton on or about December 25th entered into an oral agreement to form a partnership by the terms of which Paxton was to invent what he said was a new mechanical device for flushing internal combustion engines which he represented to McDonald to be different from anything in use anywhere. He stated it would not be at all like the one then being produced by the company which he described in his testimony as: “ * * * a balancing type of machine that was on a fulcrum, and water running into a tank, filled it with water, and when it got so heavy it would trip an air valve and water would run out through the motor and radiator and the balancing weight on the other end retripped it and sent it back to repeat the cycle again, * * * ” whereas the machine he proposed to invent and patent, as a partnership asset, “ * * * was a hydraulic method of pumping water backwards and forwards through a pipe by a diaphragm run by an electric motor. It had no air or no pneumatic action whatsoever.” He said it was an entirely new principle, “it wasn’t an improvement, it was a different idea entirely.” Paxton was to perfect the model for testing and demonstrating and McDonald was to go to Kansas City and contact the U. S. Chemical Company there with a view of selling a large number of machines as a basis for financing their manufacture. Paxton was to furnish a model of the machine to McDonald for demonstrating its efficiency to the U. S. Chemical Company. Each was to have a one-half interest in the partnership business. Pursuant thereto Paxton went to Los Angeles to perfect the model in conjunction with a„ Mr. Rosenberg who is in business there and is a highly skilled mechanic and McDonald went to Kansas City to contact the U. S.- Chemical Company. Paxton returned to Phoenix shortly after the first of the year, McDonald returning from Kansas City a few days later. Upon McDonald’s return to Phoenix he found a request by Paxton awaiting him at his home for an immediate conference with him concerning another new invention which he described as a small flushing machine operated off of the spark plugs of the engine being flushed that could be carried “in your two hands.” He discussed with McDonald the feasibility of producing the small machine as well as the diaphragm type machine, treating it as within the partnership arrangement, and proceeded to work on a model at Howard’s Screw Machine Shop on South Central Avenue. The plan was that the two models should be sent to the U. S. Chemical Company at Kansas City in accordance with the understanding by the partners at the time the partnership agreement was consummated. In order that a somewhat confused situation may be clarified we will state here that according to Paxton’s testimony he he had invented four different types of flushing machines up to the date of the trial: 1. The machine being produced and sold by the company in 1947 described as operating on a fulcrum which by running water into a tank causes an air valve to trip and force the water under pressure through the radiator and engine. 2. The vacuum type machine, the mechanism of which he did not describe but stated that it is represented by a diagram identified as Exhibit C in the record. (Mr. Crile, president of the company, testified this Exhibit C represented the diaphragm type machine.) 3. The diaphragm type machine which Paxton described as a hydraulic method of pumping water by a diaphragm run by an electric motor. 4. The small spark plug type which operates off the spark plugs of a combustion type engine. We will hereinafter refer to them as the trip valve type, the vacuum type, the diaphragm type and the spark plug type machine. Paxton continued to work on the spark plug model until around the first of March. McDonald was at the shop frequently and aided in getting some of the parts for the machine. In the meantime, however, and •on or aibout January 16, 1948, Paxton returned to work for the company and entered into an agreement with it in which he assigned all of his right, title and interest in his application for patent bearing date January 7, 1948, for the small spark plug flushing machine. In consideration of this assignment of his interest in the application for patent to this small spark plug machine he was given 25 shares of the capital stock in the Industrial Research, Inc.j or a one-fifth interest therein. McDonald had advanced to Paxton $200 for him to make the trip to Los Angeles and also spent around $400 on his trip to Kansas City to try to sell the machines to the U. S. Chemical Company. He did not know Paxton had returned to work for the company and did not know of the assignment of his interest in the application for patent for the small spark plug machine until some time later in March. Upon learning of Paxton’s action and being unable to reach a settlement with him, McDonald filed suit against him and the company setting up his oral partnership agreement with Paxton relative to the invention and proposed production of the diaphragm type flushing machine. He alleged that Paxton had sold to the company the application for patent rights to the diaphragm type machine and that the same was an asset of the partnership under the partnership agreement. He further alleged that the company had knowledge of his interest therein at the time of its purchase thereof and in his first cause of action, asked for a dissolution of the partnership, for an accounting, and for judgment both against Paxton and the company. In his second cause of action he sought to recover damages against both defendants for loss of profits on the sale of the diaphragm type machine which he alleged he had tentatively made to the U. S. Chemical Company. He also asked for judgment for the value of one-half of the stock issued by the company to Paxton in consideration of his assignment to it of the application for patent for the diaphragm type machine. Defendants denied generally and specifically each and all of the allegations of the complaint except that Paxton had invented the flushing machine and had sold his rights therein to the company. The court directed that the causes of action be tried separately and that the parties proceed to trial on the first cause of action. Paxton admitted upon the witness stand that he and McDonald had a partnership agreement relating to the invention, production and sale of the diaphragm type machine conditioned upon McDonald paying $2,500 into the partnership. McDonald testified nothing was said about $2,500 being contributed by him to the partnership as a condition precedent to the creation of the partnership relation between him and Paxton. It was tried to a jury and submitted upon the single interrogatory reading as follows: “Was the agreement of plaintiff McDonald and the defendant Paxton to become partners conditioned upon the plaintiff McDonald putting up or making available the sum of $2500?” This interrogatory was answered in the negative. Thereupon the court entered judgment for McDonald against Paxton adjudging and decreeing that McDonald have judgment on his first cause of action as follows: “That a partnership is declared to have existed between plaintiff and defendant Paxton as alleged in plaintiff’s complaint; that capital stock of defendant Industrial Research, Inc., received by defendant Paxton is a partnership asset; “And that the partnership be dissolved; and an accounting had, and the net assets if any, distributed to the partners in equal portions. “Now, therefore, it is ordered, adjudged and decreed: “1. That the plaintiff George R. McDonald and the defendant Dewey Paxton entered into a partnership agreement and became partners on or about the 25th day of December, 1947, in the ownership of a pneumatically operated diaphragm type flushing machine and in the development, refinement and improvement of the same; and in producing, selling, distributing and patenting of the same; and agreed to share the profits and losses fifty (50) per cent to the plaintiff and fifty (50) per cent to Dewey Paxton. “2. That the twenty shares (under all of the evidence this should be 25 instead of 20 shares) of capital stock of the defendant Industrial Research, Inc., a corporation, received by the defendant Dewey Paxton is a partnership asset. “3. That the partnership between George R. McDonald and Dewey Paxton be and the same is hereby dissolved. “4. That an accounting be had of the partnership transaction forthwith and that either the plaintiff George R. McDonald or the defendant Dewey Paxton may apply to the court upon seasonable notice for the appointment of a master for the purpose of said accounting as to said partnership affairs. “5. That upon said accounting had and the master’s report of the result thereof returned into court, the net assets of said partnership be distributed in equal portion to the said George R. McDonald and the defendant Dewey Paxton, the court reserving jurisdiction for the purposes of such accounting and distribution. “6. That the plaintiff do have and recover his costs herein incurred and expended as taxes and allowed iby the clerk of this court.” The court declined to make a finding or render a judgment upon the issues raised in the pleadings between the Industrial Research, Inc., and McDonald. On appeal appellants have presented a number of assignments of error. The first three assignments were directed at the court’s refusal to adjudicate the issues made by the pleadings between the company and McDonald and the remainder of such assignments concerned the findings and decisions of the court relating to the respective rights of Paxton and'McDonald under the partnership agreement. It is clear from the record in'the case that the court erred in denying to the company an adjudication of the issues between it and McDonald as raised by the pleadings. The pleadings presented a clear-cut issue between McDonald and the company, and McDonald presented evidence designed to support his claim of liability of the company to him. This claim was based upon the alleged sale of partnership assets by Paxton to the company and that the company at the time of purchase had knowledge of plaintiff’s interest therein. A Mr. Crile, president of the company, was called for cross-examination by plaintiff and testified positively that the company had no knowledge of McDonald’s interest or claim of interest in the application for patent assigned to it by Paxton on January 16, 1948, and no competent evidence was offered to prove that such knowledge did, in fact, exist. The court correctly ruled that there was no conflict in the evidence on the question of knowledge of the company that a partnership existed between McDonald and Paxton and properly refused to submit an interrogatory on that question to the jury. But the company was entitled to an adjudication of the issues raised by the pleadings between it and the plaintiff on his first cause of action. State ex rel. Sutherland v. Pease, Tex.Civ.App. 147 S.W. 649. We hold that the company, having no knowledge of the existence of a partnership between McDonald and Paxton and of McDonald’s interest in the applications for patent to the spark plug type machine assigned to it by Paxton, on January 16, 1948, took the same free from any interest McDonald may have had in it. We therefore direct that judgment be'entered in favor of the company on plaintiff’s first cause of action and that plaintiff’s cost bill as to the company be stricken. The second question involved is not so simple. That a partnership existed between Paxton and McDonald as alleged in the complaint has been definitely determined by the trial court ttpon a conflict in the evidence by which we are bound. Conceding the existence of the partnership relation between Paxton and McDonald (which we believe to be amply supported by the evidence) it does not necessarily follow that the 25 shares of stock in the company received by Paxton in consideration of his assignment to the company of the application for patent on the spark plug type machine is a partnership asset. Unless the spark plug type machine is a part nership asset, it follows that the stock received therefor from the company is not a partnership asset. Under the pleadings the spark plug type machine was not alleged to be an asset of the partnership. The allegations relating to partnership, assets were limited to the diaphragm type machine which has no relation whatever to the so-called spark plug type machine. Although we are convinced from a careful study of the transcript of the evidence that it was the intention of both Paxton and McDonald that the spark plug type machine was to be a partnership .asset because its marketing was discussed by them in connection with the sale of the diaphragm type machine; whether it would be feasible to prefer it over the diaphragm type by reason of the smallness of its size, etc. Furthermore in Paxton’s' calls to the McDonald residence before McDonald’s return from Kansas City he told Mrs. McDonald about this new spark plug invention urging McDonald to contact him about it as soon as he returned. He stated he was sure McDonald would like it and would like to produce it. McDonald was to show it to the U. S. Chemical Company. In light of these facts we are of the view that the court erred in not granting plaintiff’s motion to amend his pleadings during the course of the trial to include the spark plug type machine as a partnership asset to conform with the evidence. No cross assignment of error was made upon this ground, however, and this court is without jurisdiction to consider it. The contract of assignment bearing date of January 16, 1948 together with the testimony of Mr. Crile shows conclusively that the stock issued to Paxton by the company was in consideration of his assignment to it of the application he had pending for the spark plug type of flushing machine which as above pointed out was not alleged to be a partnership asset. This being true, the stock issued to Paxton is not a partnership asset. It was reversible error for the court to so hold. Inasmuch as the second cause of action has not been tried we believe- it proper to make the following observation for the guidance of the court in that trial. The evidence clearly shows that the partnership agreement gives to McDonald a 50% interest in the diaphragm type machine and in the patent thereto. Mr. Crile testified that sometime in the summer -of 1947 Paxton had assigned to the company all of his interest in and to the invention and the application for patent to a machine represented by the diagram, marked in evidence as Exhibit C. He stated this is the diaphragm type flushing machine and pointed out that the figure 24 on the diagram represents the diaphragm in the machine. (As above stated Paxton’s testimony is in conflict with this. He refers to this drawing as the vacuum type machine, and that the diaphragm type is entirely different.) This exhibit bears no date and is not supported by an application for patent. The court therefore cannot definitely determine whether the assignment, if made at all, was before or after the partnership relation between Paxton and McDonald came into existence. Paxton stated to McDonald, as an inducement to the formation of the partnership with him, and testified at the trial that the diaphragm type flushing machine was entirely different from the machine then being produced by the company, that it was entirely different from any machine in use anywhere, and that the invention was completely new. He stated to McDonald that he had taken the first steps for protection of patent for the diaphragm type machine by writing and mailing a letter to himself. Although he did not expressly state that no application for patent had been made therefor, he clearly intended that such an inference should be drawn from what he did say. Most of his testimony is more or less evasive and equivocal. If his statements to' McDonald were true, or if he had not previously assigned the application for patent thereto to the company, he had the right to give McDonald a one-half interest in that machine and in the application for patent in consideration of the contribution McDonald was to make to the partnership. There is no evidence that McDonald at the time, had any knowledge of the interest that the company claims to have in the diaphragm type of flushing machine if such interest did then exist. There is nothing' in the evidence to show a public record anywhere of the company’s interest. The company is using the diaphragm in the flushing machine it is now producing and selling upon the market. Section 47 of 35 U.S.C.A. as amended by Act of August 18, 1941, chapter 370, 55 Stats. 634, provides: “Every application for patent or patent or any interest therein shall be assignable in law by an instrument in writing, and the applicant or patentee or his assigns or legal representatives may in like manner grant and convey an exclusive right under his application for patent or patent to the whole or any specified part of the United States. An assignment, grant, or conveyance shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice unless it is recorded in the Patent Office within three months from the date thereof or prior to such subsequent purchase or mortgage.” Crile’s testimony that the company had an assignment to the application for patent to the machine represented by Exhibit C in evidence was not the best evidence, but conceding his statement to be true, if the assignment was made during the summer of 1947 it had to be recorded in the patent office, under the law, before January 16, 1948. Therefore as between McDonald and the company, if the assignment of the application for patent of the diaphragm type machine was of record in the patent office at Washington, D .C., at the time the partnership agreement was made, McDonald is charged with knowledge of any interest the company had therein and McDonald, in such event, acquired no rights thereto by reason of the partnership agreement with Paxton which would in any wise affect the interest of the company. Conversely, if the assignment of the application for patent to such machine, if previously made, was not of record in the patent office, McDonald received a valid and enforceable one-half interest therein and is entitled to relief as against both the company and Paxton for the value of such interest. For the above reasons the judgment of the trial court is modified and remanded with instructions to enter judgment for Industrial Research, Inc., on the first cause of action as above indicated and that the 25 shares of capital stock issued to Paxton by the company be adjudged to not be a partnership asset. Otherwise judgment affirmed. Modified and affirmed. UDALL, C. J., and STANFORD, DE CONCINI, and LA PRADE, JJ., concur.

PER CURIAM. This is an original proceeding in habeas corpus instituted by Charles A. Gusick, petitioner, for the purpose of procuring a reduction in the amount of bail fixed by the committing magistrate of East Phoenix precinct on holding petitioner to answer in two criminal causes now pending before the superior court of Maricopa county, which refused to reduce the amount of bail upon petitioner’s application. Respondent L. C. Boies, sheriff of Maricopa county, attached to his response a motion to dismiss the writ because of the failure of petitioner to present to this court the complete record of the proceedings had before the superior court and the committing magistrate. In our opinion this motion is without merit and is hereby denied for the reason that it was admitted on argument that no evidence bearing on the bail question was taken in either of the lower tribunals. Before this court is the entire record, including the superior court’s order denying petitioner’s application for reduction of bail, 'hence we have before us everything necessary to determine whether the trial court abused its discretion. Petitioner alleges that the committing magistrate of the East Phoenix precinct, after a preliminary hearing had been waived, held him to answer to the superior court for the crimes of sodomy and fellatio. Bail was fixed in each case in the sum of $75,000. Thereafter two separate informations were filed in the superior court charging petitioner with said offenses, and upon arraignment-—where a plea of not guilty was entered—petitioner’s application for reduction of bail was denied by the court Petitioner further alleges that he is now confined in the county jail and, due to his .inability to give bail in the aggregate sum of $150,000, is unlawfully restrained of his liberty by the sheriff of Maricopa county while awaiting trial. Petitioner also alleges that his failure to furnish such bail is because of his financial inability to do so and contends that the excessive amount of bail so required of him is violative of his rights in that it amounts in effect to a de.nial of his constitutional right to be admitted to bail. The return of the sheriff is to the effect that he has the custody of the petitioner pursuant to the orders of the magistrate fixing bail and petitioner’s failure to execute bail bonds in the sums specified. While there are no reported decisions of this court on the point, “It is a general rule that habeas corpus lies to procure the discharge upon bail in a proper amount of one who is held under excessive bail, provided, in some jurisdictions, that application has first been made to the lower court for reduction of the amount of bail. * * * ” 25 Am.Jur., Habeas Corpus, Sec. 88; see also 39 C.J.S., Habeas Corpus, § 34(b). The Constitution of Arizona states in Article 2, Section 22: “All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great”, and in Article 2, Section 15, of the Arizona Constitution, it is provided: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” In keeping with this basic law Section 44— 411,. A.C.A.1939 (Rules Cr.Proc., Sec. 70), provides: “All persons in custody for the commission of an offense not capital shall, before conviction, be entitled as of right to be admitted to bail.” While there is a split in the authorities, Arizona is, we believe, properly committed to the view that in fixing the amount of bail the innocence of the accused is presumed, In re Haigler, 15 Ariz. 150, 137 P. 423. Contra: Ex parte Ryan, 44 Cal. 555; Ex parte McWhorter, 48 Okl.Cr. 397, 292 P. 393; Ex parte Malley, 50 Nev. 248, 256 P. 512, 53 A.L.R. 395. Bail is exacted for the sole purpose of securing the attendance of the defendant in court at all times when his presence may be lawfully required, and his surrendering himself in execution of any legal judgment that may be pronounced against him, Johnson v. State, 30 Ala.App. 593, 10 So.2d 298; People ex rel. Sammons v. Snow, 340 Ill. 464, 173 N.E. 8, 9, 72 A.L.R. 798; and any bail.fixed at more than is necessary to secure that appearance is excessive within the meaning of the constitution, State ex rel. Corella v. Miles, 303 Mo. 648, 262 S.W. 364. “ * * * excessive bail is not to be required for the purpose of preventing the prisoner from being admitted to bail. * * * ” People ex rel. Sammons v. Snow, supra, and reasonable bail should not be denied for the purpose of punishing a person charged with crime, Johnson v. State, supra. Furthermore, an aroused state of public opinion against one accused of crime is no ground for the fixing of excessive bail, Ex parte Stegman, 112 N.J. Eq. 72, 163 A. 422. However, bail is not to be deemed excessive merely because the accused cannot give the bail required, Ex parte Burnette, 35 Cal.App.2d 358, 95 P.2d 684. The power to grant relief from excessive bail by habeas corpus should be exercised only in cases where there has been a real invasion of defendant's constitutional right that excessive bail shall not be required, and not where there is a mere difference of opinion as to the amount fixed, People ex rel. Deliz v. Warden of City Prison, 260 App.Div. 155, 21 N.Y.S.2d 435. In determining the amount of bail, in light of the constitutional prohibition against excessive bail, the court should consider the circumstances of each case, including among other factors: the nature and gravity of the offense charged; the character and reputation of the accused; his previous criminal record, if any; the measure of punishment which may be inflicted; and the ability of the accused to give bail, which includes his own pecuniary condition as well as the possession of friends able and willing to give bail for him, Green v. Petit, 222 Ind. 467, 54 N.E.2d 281, and for an excellent annotation on the entire subject, see 72 A.L.R. 801. In applying the foregoing legal principles to the case at hand it appears that all of the offenses with which defendant is charged are bailable and that petitioner is entitled under the constitution to be admitted to bail as a matter of right which, under all of the circumstances, must not be excessive. While the crimes charged are revolting in their nature, the legislature has not seen fit to consider them as offenses meriting long imprisonment, for until the last regular session of that body (The Twentieth), the punishment fixed by statute for each of these offenses was not less than one nor more than five years in the state prison, Secs. 43-406 and 43-407, A. C.A.1939. During the first regular session of the Twentieth Legislature, however, section 43-406, supra, was amended to provide a punishment for the crime against nature at not less then five nor more than twenty years in the state prison, Laws 1951, ch. 134, Twentieth Legislature. However, section 43-407, supra, has not been changed. There is no showing as to the character or prior bad reputation of petitioner, though it does appear that he has not previously been charged with or convicted of any crime. The petitioner asserts by verified petition, which stands uncontroverted, that he “does not possess financial means, property or resources to furnish bail in any substantial amount whatsoever,” but that with the aid of friends and relatives he might be able to furnish bail in the total sum of $50,000. As mute evidence of his inability to give the required bail it does appear that he has been incarcerated in the county jail since May 22. Under these circumstances we hold that the action of the lower court in refusing to reduce bail below the aggregate sum of $150,000 set by the committing magistrate constituted, a clear abuse of discretion in that the action taken was unreasonable and violated the constitutional right of petitioner to be admitted to bail. It is our considered opinion that the aggregate sum of $60,000 is a sufficient amount of bail to be required of petitioner. It is therefore considered, adjudged and ordered that the bail required by the lower tribunals be reduced to $30,000 in each of said cases, Nos. 22012 and 22013, said bonds to be conditioned as by law required, and, upon the approval of the same by the trial court, respondent, Sheriff Boies, is directed to discharge the petitioner. UDALL, C. J., and STANFORD, PHELPS, DE CONCINI and LA PRADE, JJ-, concur.

LOCKWOOD, Superior Court Judge. The petitioner, Cresencia Gomez, has ap^ pealed by certiorari for a review of an award of the Industrial Commission of Arizona, respondent insurance carrier, which denied petitioner compensation for an injury suffered while in the employ of John M. Jacobs, doing business as John Jacobs Farms. Petitioner has made two' assignments of error, one directed to the Industrial Commission’s findings, and the other to its Award, the grounds for both being that they were not supported by and were contrary to the evidence. For this reason we must examine the evidence in the record, not for the purpose of determining its weight, but to ascertain whether there was substantial evidence upon which the Commission could lawfully base such findings and award. From the record, the facts appear as follows: Gomez, a man sixty-five years of age, was employed by John Jacobs Farms as a sheep herder, working twenty-four hour's a day for seven days per week for nearly a year prior to March 14, 1950, with the exception of one day off, which time he spent Visiting his family. On March 14, 1950, and some time prior thereto, while in the course of his duties, he lived in a tent located in one corner of a field owned and cultivated 'by his employer, which field had been ploughed some time before that date. His living arrangements were simple, consisting of the tent and a camp fire in which a dutch oven was partially buried. On the date above mentioned, toward evening, a friend named Alejo Serna came to visit Gomez, and found him in the tent, on a cot, his clothes smoking, and the cot on fire. Serna took Gomez outside the tent, extinguished the fire from his clothes and the cot, and then went to- get help. He brought a man back to the camp, and together they took Gomez to St. Monica’s hospital. During all this time Gomez did not converse to any extent with anyone, except to tell Serna when the latter first arrived that he “fell”. Upon arrival at the hospital it was discovered that he was suffering from severe burns on his legs, his right arm, his face, and his left arm, the last being so badly burned that the bone was charred, later necessitating its amputation between the shoulder and the elbow. On Márch 18, 1950, Evan S. Stallcup, a claims investigator for the Industrial Commission, went to the' hospital to talk with Gomez, and on March 20th submitted a written report of his interview. In the report the investigator stated: “He speaks little English. However, his nurse acted as interpreter, and I obtained his statement. No attempt was made to obtain a signed statement at this time, as both the claimant’s arms and hands are still badly burned. “The claimant states that on the evening in question he had finished'his dinner and was sitting on his makeshift camp stool in front of his fire. Suddenly, he said; he felt an attack coming on. He fell off his stool and into the camp fire in front of him. At first he felt nothing and did not realize he was on fire. (It is my knowledge that this is a common occurrence following a heart attack. Because of the paralyzing action of such an attack, no pain of any kind is felt for several moments following the attack.) He got up out of the fire, went into his tent and lay down on his cot. His friend, Serna, appeared to visit with him about this time and it was then, finally, that he realized his clothing was on fire. He and Serna put out the fire and Serna fixed the cot so that the claimant could lie down. Serna then went for help. “The claimant says that he has suffered a similar attack once before, about a year ago, before he went to work for John Jacobs Farms. He was at home standing talking to a friend when he suddenly collapsed to the floor. At that time the doctor told him that it was his heart.” (Emphasis supplied). A printed form, with blank spaces to be filled in, and designated as “Initial Report of Attending Physician” was filed with the Industrial Commission on March 16th. Therein, following the printed direction “State in patient’s own words where and how' accident or cause of disability occurred” is the statement “He fainted and fell into the campfire suffering burns.” This report was signed by Dr. D. A. Poison, the physician who attended Gomez after he went to the hospital. On March 23d, 1950, the Industrial Commission made an award denying Gomez compensation, finding that he did not sus~ tain a personal injury by accident arising out of and in the course of his employment. The record does not show any statement or' claim for compensation signed by Gomez prior to this time, but thereafter upon timely protest and application for a rehearing, the Industrial Commission granted such rehearing which was held on June 1, 1950. Some eleven witnesses, including the petitioner, Gomez, appeared and testified. Gomez, through an interpreter, testified that: On the day of the accident he was sitting on a box by the camp fire; he stood up and lifted the box, and as ha turned, he hit some “adobe” formed into a lump of dirt, which caused him to fall; that he struck his head against some iron bars which he had placed over the fire to put his cooking pots on, and didn’t know what happened after that; that he had never had any trouble with his heart, nor fainted nor fallen down in the preceding year or so; that he did not remember the investigator, Mr. Stallcup, or anyone coming in the hospital and talking with him through the nurse, Miss. Josephine Trujillo. Miss Trujillo, appearing as a witness, stated she had attended Gomez as a student nurse at the hospital; that on March 18th she interpreted to Stallcup what Gomez said.; that Gomez did not say anything about having an “attack”, and did not say, and she did not interpret, that he had had a “similar attack” about a year before; that Gomez said he had built a fire and was preparing his supper, and was walking toward the fire and fell over a clump of mud and fell and became unconscious. The witness Dr. Poison testified that the statement in his report as attending physician, heretofore referred to, that Gomez “fainted and fell into the camp fire” was actually without factual knowledge on his part, but that the 'basis of such statement was information he had received from someone other than Gomez at the hospital —probably either the internes or nurse who first saw Gomez in the emergency room. He further testified that Gomez’ burns were of such severity that he believed they could not have been incurred unless Gomez had been in the fire for some time, and was unconscious. He said in his opinion a heart attack could not have caused such a period of unconsciousness; that he had examined Gomez and found him suffering from arteriosclerosis and hypertension, either of which might have caused a stroke, of which there was no evidence, or “periodic periods of complete unconsciousness due to lack of circulation in the brain.” He further stated that he did not look for nor see evidence of any bruise on Gomez’ head, but treated him for burns which went pretty high on his head. He said he could offer no good opinion as to whether or not the arteriosclerosis had anything to do- with the accident, although he stated several times that a “heart attack”, could not have rendered Gomez unconscious or paralyzed for long enough to become so badly burned. On his examination at the rehearing the investigator, Stallcup, reiterated the statement made in his written report dated March 20th, viz., that he questioned Gomez on March 18th through Miss Trujillo as interpreter, and that Gomez had declared that on the date of the accident he felt an “attack” coming on, and fell over the stool into the camp fire. There appears to be no controversy that the accident and resulting injury arose in the course of petitioner’s employment, the only disputed question ’being whether it arose out of such employment. The evidence is uncontroverted that the petitioner fell into the fire and suffered more than ordinary burns as a result thereof. The proximate cause of such injuries was recognized by both petitioner and the Industrial Commission as the loss of consciousness 'by Gomez, accounting for his being unable to get out of the fire before his burns became so severe, and there is conflicting evidence as to the cause of such loss of consciousness. The doctor, while stating that neither a “heart attack” nor a “stroke” was in his opinion the cause, did state that Gomez had arteriosclerosis and hypertension, either of which could have caused “periodic periods of complete» unconsciousness due to lack of circulation in the brain,” though he did not say they actually did so. The investigator testified Gomez had made a declaration to him shortly after the accident that he felt an “attack” coming on and that he had had a similar “attack” before that. At the rehearing the interpreter, Miss Trujillo, flatly denied that Gomez had made, or she had interpreted, such declaration to the investigator, and Gomez himself said he didn’t remember talking with Stallcup. This is obviously one of those “hard cases” which must excite the sympathy of everyone for the pitiful condition in which the petitioner involuntarily finds himself. The Workmen’s Compensation Act, however, does not provide compensation for every injury which an employee may suffer while in his employment, but only where such accident and resulting injury arises out of and in the course of such employment, Ocean Accident & Guarantee Corp. v. Industrial Comm., 32 Ariz. 265, 257 P. 641; Goodyear Aircraft Corp. v. Gilbert, 65 Ariz. 379, 181 P.2d 624. The law makes the Industrial Commission a tribunal for determining whether the facts bring a case within the law for compensation purposes. It is not bound by ordinary rules of evidence, but there must be reasonable evidence on which to base its findings and award. If there is a conflict in such evidence, the Commission may determine the credibility of witnesses and the weight to be given their testimony as does the court or jury in a civil action. Smith v. Aluminum Co. of America, 62 Ariz. 160, 155 P.2d 628. In the present case there is a conflict in the evidence, which the Commission has resolved against the petitioner. We cannot say that their decision was unreasonable. This Court, had it been the trier of the facts, might well have resolved the matter in favor of the petitioner, but under our long established rule we will not set aside the findings or award of the Commission if there is reasonable evidence to sustain it. Bragg v. Industrial Commission, 71 Ariz. 37, 223 P.2d 180. We therefore must conclude that petitioner’s assignments of error are without merit. Award Affirmed. UDALL, C. J., and PHELPS, DE CONCINI and LA PRADE, JJ., concur. Justice R. C. Stanford, being disqualified, the Honorable Loma E. Lockwood, Judge, of the Superior Court of Maricopa County, was called to sit in his stead.

DE CONCINT, Justice. Russell Johnson, plaintiff-appellee, brought an action against Homer Ward and Thomas Moseley, defendants-appellants, police officers of the Town of Tolleson, for false arrest and imprisonment; and also against the Hartford Accident and Indemnity. Company, defendant-appellant, as-surety on the bonds of the officers. The bonds were made payable to the town of Tolleson. The jury found for the plaintiff and against defendant officers, and assessed plaintiff’s damages, “ * * * in. the sum of no dollars.” The jury also found for the plaintiff and against the-surety on the bonds, and assessed plaintiff’s-damages in the sum of $1,550. The trial judge was not present when the jury returned its verdict. Another judge of \he same court presided when the-verdict was returned, but refused, on motion of the plaintiff, to- direct the jury to further deliberate in order that they might correct their verdict. Some time later the trial judge granted plaintiff’s-motion for a judgment notwithstanding the verdict against the officers and adjudged them to be jointly and severally liable in the sum of $1,550. The court further adjudged that the plaintiff have judgment against the surety in the sum of $775 as to each of the officers’ bonds. From that judgment defendants appeal. Appellants’ assignments of error can be grouped into. two propositions; the . first is that there is no liability on the bonds executed by the surety for -the officers in favor of plaintiff Johnson. The record shows that the bonds executed by the surety were made payable to the town of Tolleson. Appellants assert that in order for one to sustain an action against a public official for his breach of a bond which the official gives to a municipality, the one bringing the cause of action must be in privity with the surety and the bond must have been executed for his protection and security against acts committed by the official. Appellee relies largely on the case of Russell v. Glascow, 63 Ariz. 310, 162 P.2d 129, 131, in which our court said: “As shown under Sec. 16-210, supra, which section is under the chapter pertaining to cities and towns, the common council of the City of Globe could require its deputies, such as the defendant Self, to give bond for the protection of persons who might be injured, as this plaintiff was. It would be fitting for such officials to require bond of all of its peace officers.” That case, however, was decided on a point completely foreign to the above quotation. In the instant case it is unnecessary for us to decide whether a city has the power to direct its officers to execute a bond in favor of third persons. We need look only to the bonds in question to see if they were made for the benefit of others besides the town of Tolleson. Appellee contends that Sec. 12-313, A.C.A.1939, gives to the plaintiff the right to recover on the bonds. That section provides: “For use of any person damaged.-—Every official bond executed by any officer pursuant to law, is in force and obligatory upon the principal and sureties therein to and for the state of Arizona and to and for the use and benefit of all persons who may. be injured or aggrieved by the wrongful act or default of such officer in his official capacity; and any person so injured or aggrieved may bring suit on such bond, in his own name, without an assignment thereof.” It can thus be seen that the legislature intended to benefit the public by allowing injured or aggrieved persons to recover on official bonds. If the officers’ bonds in this case had been official bonds then appellee’s contention would undoubtedly be correct. However, Sec. 12-309, A.C.A. 1939, provides: “Bonds, joint and several —Condition.—All official bonds shall be in form, joint and several, and made payable to the state of Arizona, and the condition shall be that the principal will well, truly, and faithfully perform all official duties then required, or as may be imposed on him, by law. * * * ” Since the bonds in question were made payable to the town of Tolleson and not to the state of Arizona, they were obviously not official bonds; therefore, only one conclusion is tenable: The officers’ bonds not being official bonds within the meaning of Sec. 12-309, supra, Sec. 12-313, supra, does not give the plaintiff the right to recover on them. Although there are some jurisdictions not in accord, the prevailing and foregoing view is that the obligation of a surety on its bond cannot be extended outside the terms of the instrument itself. The rule is well stated in United States Fidelity & Guaranty Co. v. Crittenden, 62 Tex.Civ.App. 283, 131 S.W. 232: "* * Unless there be some express provision of law, which would be read into the bond as a part thereof, authorizing suit upon such official bond by an individual for a wrong done him by an officer, then the well-settled principle of law that the obligation of a surety cannot be extended beyond the terms of his bond nor to one not a party thereto would seem to be applicable, as the bond only created relations between the city as an entity which the official represented and such official * * *". See also Carr v. City of Knoxville, for use of Monday, 144 Tenn. 483, 234 S.W. 328, 19 A.L.R. 69; City of Eaton Rapids, to use of Snyder v. Stump, 127 Mich. 1, 86 N.W. 438; Alexander v. Ison, 107 Ga. 745, 33 S.E. 657; Cushing v. Lickert, 79 Neb. 384, 112 N.W. 616; District of Columbia, to use of Langellotti v. Federal & Deposit Co. of Maryland, 50 App. D.C. 309, 271 F. 383. The above rule is subject to the principle that all contracts are governed by the laws of the jurisdiction which exist at the time of their execution. The Supreme Court of California, in applying this principle to the rule, said in Sunter v. Fraser, 194 Cal. 337, 228 P. 660, 661: “ * * * the accepted rule is that under the common law an action upon a bond of a public official could be maintained only by the obligee named in the bond, and that, unless the right has been given to an individual by statute to maintain such an; action in his own name, the right- does not exist.” In other words, an individual may not recover on the bond of an officer unless he is expressly made an obligee of the bond by its terms, or unless the right to recover is given him by statute. TO' hold otherwise would be to force upon the surety an obligation for which he did! not contract. Since, then, the surety is not liable to-the plaintiff Johnson, the rule of law which appellants advance that the surety cannot be liable in a sum greater than its principal (s), need not be considered. All that remains to determine is whether or not the trial court erred in granting plaintiff’s motion for a judgment n. o. v. against the officers. In finding for the plaintiff against the officers and assessing the former’s damages in no dollars, the jury patently returned an improper verdict. Such a verdict cannot stand. Plaintiff contends that it was proper for the trial court to fix the amount of plaintiff’s damages, and cites several cases- which he claims support his contention, particularly the case of Fornara v. Wolpe, 26 Ariz. 383, 226 P. 203, 204. In that case plaintiff sued for a real estate commission; the court instructed the jury to find for the plaintiff, if at all, for the exact amount of the commission. When the jury returned a verdict for the plaintiff in a lesser amount the court granted plaintiff’s -motion for judgment n. o. v. In that -case, however, the amount of plaintiff’s damages was not open to question. The •court said: “ * * * But under the testimony the amount due appellee, if any at all, whether upon the express or the implied promise, was not in dispute, the evidence on that question being absolutely uncontradicted and of such a nature-—not opposed to the probabilities of the case— that it should not have been disregarded. * * * ” It must be noted that in the above case and in the others cited by plaintiff the amount of damages was either undisputed or subject to arithmetical computation. In cases such as these the amount of plaintiff’s damage ceases to be a question of fact and becomes one of law. •Once the liability of the defendant has been established all that remains to be done is to assess plaintiff’s damage as disclosed by the evidence. It follows, then, that where the jury errs in its verdict as to the amount of the verdict only, where the amount is not in dispute, the court may assess the proper amount. In the case at bar, however, we 'have no indication that plaintiff’s damages were either undisputed or arithmetically computable. Indeed, in this case, where plaintiff sues for $10,000 for a willful tort, the jury might find for any amount in damages up to that sum. While appellants have failed to furnish this court with a reporter’s transcript of the trial Tbelow, plaintiff has failed, in his brief, to make any reference to the fact that the plaintiff’s damages were either fixed or undisputed. This he must do in order to justify the ruling of the lower court. We hold that assessing the plaintiff’s damages was a question of fact which required a jury determination. The trial court should have refused to accept the improper verdict of the jury and sent the jury back for further deliberation. In granting plaintiff’s motion for judgment n. o. v. it committed error. The judgment of the lower court is reversed and remanded for a new trial as to defendants Ward and Moseley, and reversed as to the Hartford Accident and Indemnity Co. with directions to the trial court to dismiss plaintiff’s complaint against it. Reversed and remanded. UDALL, C. J., and STANFORD, PHELPS and LA PRADE, JJ., concur.

DE CONCINI, Justice. Petitioner, Frank M. Pressley, on March 9, 1950, was in the employ of Pioneer Constructors, a firm engaged in construction of a sewer line in Tucson, Arizona. At about one o’clock, p. m. that day he was seriously injured by a gas explosion in a manhole where he was working. He was taken to a hospital, where he remained until April 15th, and was finally discharged by his physician on June 9th. The initial report of accident required by law was filed with the Industrial Commission on March 13th, together with the report of the attending physician. On March 22nd a workman’s claim for compensation was filed with the commission, signed “Frank Pressley, by E. L. Kettenback, M. D.” Both the doctor and Pressley testified that the latter never requested Dr. Kettenback to sign the application or to file the same. On March 29th the commission entered findings that petitioner suffered an injury by an accident arising out of and in the course of his employment, and ordered that Pressley was entitled to compensation unr der the Act; and accepted responsibility for the medical benefits and compensation provided thereby. On the same day, the commission wrote Pressley that his claim for compensation was not properly signed and enclosed application forms partially filled in by the commission. Pressley signed these forms on March 31st and returned them, but did not fill in any of the remaining blanks, among which were questions inquiring if any third party was liable for the accident. They were filed with the commission and thereafter it paid, for medical benefits, the sum of $859. On April 5th the commission sent petitioner a check for compensation which was returned by him on about April 28th. On May 1st the petitioner executed, on a form provided by the commission, an election of remedies as follows: “2. Elects .to proceed under the provisions of Section 56-949, Arizona Code 1939, as amended and supplemented, against said third party and to herewith file claim against said defendant employer and deT fendant insurance carrier only to the deficiency, if any, between .the amount actually collected from said third party and the compensation provided or estimated under Articles 9 and 12, Chapter 56, Arizona Code 1939, as amended and supplemented; and also agrees not to compromise any action or cause of action for personal injuries, except with the approval of the Industrial Commission of Arizona, as provided by said laws.” * * . * * * + “The said claimant, in making said election of remedies, under 2 or 3, consents and agrees to all of the provisions of the Arizona Workmen’s Compensation Law and the Arizona Occupational Disease Disability Law in the matter of accident benefits, and compensation; and agrees to follow any competent and reasonable surgical treatment, or medical aid, found to be necessary by The Industrial Commission of Arizona for the relief, cure, or improvement of the condition of said claimant.” and on May 6th filed a petition containing, among other things, the following: “3. That your petitioner did on March 31st, 1950 sign a ‘Workmen’s Claim for Compensation for Injuries or Occupational Disease’ and a ‘Workman’s Supplemental Claim for Compensation’ which instruments were duly filed with the Commission and are hereby referred to for all purposes. “4. That at the time your petitioner signed the foregoing instruments he was in complete ignorance of his right to bring a civil action against the said Tucson Gas, Electric Light & Power Company for the aforesaid injuries and was completely ignorant of the fact that his signing and filing the aforementioned claims would mitigate against any rights which he might have as a result of being so injured, that at the time the aforesaid claims were executed by him he was in a hospital critically ill and suffering grievous pain and suffering; that at the time said claims were executed and at all times prior thereto he was without any legal advice whatsoever; and that in filing the aforesaid claims he had no intention of waiving any rights which he might have against the Tucson Gas, Electric Light & Power Company arising as a result of said injuries or for any other reasons.” and asked that his medical benefits be continued but that his claim for compensation be held in abeyance pending final decision of his suit against the Tucson Gas, Electric Light & Power Company under section 56-949, supra. On June 12th the commission made an award retaining jurisdiction of the case and in effect denied petitioner the right to sue said third party. A petition for rehearing was duly filed and on September 5th the commission affirmed the previous award. Application was made for a writ of certiorari to the supreme court and the writ was granted. The matter is now before the court on the answer to the writ. The situation presented is somewhat peculiar. Petitioner claims the commission is primarily liable only for accident benefits but secondarily liable for compensation benefits under section 56-949, supra, and then only to the extent he fails to recover from a third party as much as he would be entitled to recover from the commission under the Act; while the commission insists that it is primarily liable for both accident benefits and compensation to the full extent of the Act. The questions involved require a construction of various sections of the compensation Act and of the constitution of Arizona. In construing them there are certain principles which we must always keep before us: They must be considered as a whole so as to effectuate the purpose of the legislature and of the people as set forth in the constitution and the Act, and, so far as statutes are concerned, are to be construed liberally and remedially. Ocean Accident & Guarantee Corp. v. Industrial Commission, 32 Ariz. 265, 257 P. 641. The purpose of the compensation Act and of article 18, section 8, of the constitution, as amended, was to dispense, so far as possible, with litigation between employer and employee and to place upon industry the burden of compensation for injuries caused by the employment. Sims v. Moeur, 41 Ariz. 486, 19 P.2d 679. In passing upon the assignments of error, we think it best to dispose of them according to the legal questions raised thereby rather than the formal assignments as presented in the briefs. The first question is whether petitioner is entitled to accident benefits even though he elects to sue a third party whom he claims is responsible for the accident. Section 56—930, A.C.A.1939, provides: "Construction of terms. * * * “ ‘Compensation’ shall mean the compensation and benefits provided herein; * *.” At first blush this section would appear to indicate that the term “compensation” was intended to include the term accident “benefits” and that the latter are a component of the former. An examination of the Act in its entirety renders this interpretation of section 56-930, supra, incongruous with its subsequent provisions. Section 56-938 (a), A.C.A.1939, details the various benefits to which every injured employee is entitled, such as surgical and hospital treatment, and nursing and medical supplies, and terms them “accident benefits.” Subsection (b) sets up a separate accident benefit fund and provides that the compensation fund shall not be liable for such benefits. Sections 56-940, 941, and 942, A. C.A. 1939, further provide for the operation and administration of the accident benefit fund. From these sections, as from the entire Act, it can be seen that the legislature, notwithstanding section 56-930, supra, intended to treat “compensation” and “accident benefits” as two separate and distinct entities, independent of one another. That the legislature so intended to differentiate between compensation and accident benefits was established by this court' in the case of Paramount Pictures v. Ind. Comm., 56 Ariz. 217, 106 P.2d 1024. After a careful study of all of the various sections of the Act, particularly sections 56-920, 931, 932, 936, 938, 940, and 942, we hold that an employee who elects to sue a third party under section 56-949, supra, is nevertheless entitled to receive “accident benefits” from the commission. This is so because section 56-938, supra, in particular provides that every injured employee shall receive “accident benefits.” No distinction is made be-' tween employees who elect to pursue their remedy against a third party under section 56-949, A.C.A.1939, and those who elect to receive compensation. The only logical assumption, then, is that the legislature intended that all injured employees should receive accident benefits including those who elect to pursue a third party. Therefore section 56-950, supra, which provides that an employee who makes an application for an award waives his right to pursue a third party, by necessity refers to an application for an award for compensation and not to an application for an award for accident benefits. Under section 56-938, supra, an application for an award for accident benefits is not a waiver of the employee’s right to pursue his remedy against a third party. The second question is the one raised by amicus curiae, that an injured employee retains both the right of full recovery under the Act and also the common law action of negligence under article 18, section 6, of the constitution, and that sections 56-949 and 950, supra, are therefore unconstitutional. This court discussed the constitutionality of section 56-949, supra, in Alabam’s Freight Co. v. Hunt, 29 Ariz. 419, 242 P. 658, and Moseley v. Lily Ice Cream Co., 38 Ariz. 417, 300 P. 958, and we see no reason for departing from the rule as laid down in those cases to the ef feet that there can he hut one recovery of accident benefits and compensation for an injury, as provided by the Act, but that the injured party must be given a reasonable election of the different remedies provided by the constitution and the statutes. To sum up, the total of petitioner’s recovery, if he falls under the Act at all, cannot be less than the “accident benefits” and the compensation fixed by the Act, and if he sues the third party, may be more. The award of the commission should have provided for payment of medical expenses in the same manner as under the ordinary case. So far as the claim of petitioner to delay the fixing of the amount of compensation to be paid by the commission is concerned, we think that in view of the provision of the Act that a claim must be filed within a year from date of injury, and considering that it usually takes one year or more to prosecute a claim for negligence through our courts, it was very proper even though not necessary for petitioner to present his request for delayed action on this point; and that this was not an application for an award of the character referred to in section 56-950, supra, as barring the right to sue the third party. It was and is the duty of the commission to continue the payment of medical benefits as needed. In view of this fact, the' contention of the commission that plaintiff was estopped from changing his election because the interest of parties such as doctors, nurses, hospitals, etc. would be affected by the change, is without support in. the law. We next consider the question of whether section 56-950, supra, applies to-an election made under section 56-949 and if so, whether 56-950 is constitutional. Petitioner claims it does not apply to an election to sue or not to sue a third party under 56-949, supra, but to an option to sue an employer under article 18, section 6 of the constitution or to accept compensation under the Act. We hold that the right to-sue an employer under article 18, section 6, supra, must be exercised before the injury by rejecting the Act at the time of the employment. Article 18, section 8 of the constitution, as it now appears, was adopted by the people after the adoption of article 18, section 6 and therefore, so far as the two may be inconsistent, section 8 prevails over section 6. Section 8, supra, provides that an employee at the time of entering his employment has the option to either come under the Act or to reject the Act and reserves the right to sue his employer under section 6, supra. However if an employee who has not rejected the Act is injured by the negligence of a third person, he may elect the remedy given him by the Act and take compensation or he may sue the third party under section 56-949, supra. We hold that section 56-950, supra, which provides what constitutes an election, applies to the election to pursue a remedy against third parties under section 56—949, supra, and not otherwise. The question then arises whether or not section 56-950, supra, affords the employee the “reasonable election” of remedies required by our holdings in the Alabam and Moseley cases, supra; for unless it does, the section is clearly unconstitutional. In cases like this an election is a waiver of one right and the acceptance of another in lieu thereof, and we hold that to be binding the election must be with knowledge (1) of the alternative remedies, and (2) that the acceptance of one waives the right to the other. Taylor v. Hubbell, 9 Cir., 188 F.2d 106, construed article 18, section 6 of the Arizona constitution to give an injured employee the right to sue a third party. We consider such employee to have that right by virtue of section 56-949, supra, under article 18, section 8; however that case is authority for what constitutes a binding and valid election. See also Graybill v. Corlett, 60 Colo. 551, 154 P. 730; Craig v. Meriwether, 84 Ark. 298, 105 S.W. 585; 28 C.J.S., Election of Remedies, § 24. With this construction, section 56-950, supra, is constitutional. If the applicant does not have this knowledge, whether his ignorance be one of law or fact, he has in fact made no binding election. Gardner v. Gauthier, 101 Vt. 147, 141 A. 682. This desire for a change must of course be raised by the pleadings in the case, Moseley v. Lily Ice Cream Co., supra, and the petitioner must sustain his claim of lack of knowledge by reasonable evidence. The award of the commission dated June 12th denying petitioner the right to sue the third party, provided: “The Commission having reviewed the record and the law in such cases finds that under the provisions of Section 56-930 and 56-949 and 56-950, Arizona Code Annotated, 1939, as amended, that the above named applicant, having made application for an award for compensation and having accepted benefits under the Workmen’s Compensation Law, has waived any right to exercise any option instituting proceedings in any court and that the Industrial Commission is therefore without jurisdiction to grant the prayer of the claimant and retains jurisdiction under the law.” (Emphasis supplied.) The italicized portions show clearly that the commission held as a matter of law that the application for compensation by petitioner dated March 31st amounted to an election which precluded him from suing a third party as provided in section 56-949, supra. It can be seen, in the light of the foregoing, that in order for petitioner’s application for an. award to be a binding election upon him, he must have had knowledge of his alternative remedy to pursue the third party. The only evidence that the petitioner was without that requisite knowledge was his own testimony. Since the rule in this jurisdiction is that the trier of fact may completely disregard the testimony of an interested witness, the commission could have disbelieved the petitioner. It is clear however that the commission did not base its award on this fact but, rather it found as basis for its award, that in making an application for that .award petitioner had, as a matter of law, precluded himself from pursuing his remedy against a third party. That conclusion is not justified by the Workmen’s Compensation Act, as we interpret it. The award, therefore, cannot stand. Award set aside. UDALL, C. J., and STANFORD, PHELPS and LA PRADE, JJ., concur.

UDALL, Chief Justice. This is an original application for an alternative writ of mandamus against the respondent, Jewel W. Jordan, as state auditor to require her to issue a warrant against the state of Arizona in payment of the petitioner’s claim. The Nineteenth Legislature in Chapter 30, Session Laws of 1949, passed a law establishing the Arizona Children’s Colony. The Colony Was to occupy a tract of land belonging to the state, to wit: Section 16, Township 6 South, Range 8 East, Gila and Salt River Base and Meridian. The petitioner was then the owner of agricultural leases from the state of Arizona, covering part of the above described section upon which he had placed a well and other improvements. In the summer of 1949, the state cancel-led petitioner’s leases and took possession of the land. By the provisions of Sec. 11-206, A.C.A. 1939, appraisers were appointed and they appraised the improvements and damages to the petitioner at $10,620. Formal claim was made to the respondent for the above amount. The claim was audited and approved as being just but the respondent refused to issue a warrant for its payment. The sole question presented by this application is whether there is a valid appropriation against which the respondent may draw a warrant. Petitioner alleges that under the provisions of Sec. 11-1002, A.C.A.1939, which relates to the taking of state lands by state institutions, the respondent is authorized to* pay the claim out of the state’s general fund. The pertinent part of the above section, which is relied upon by petitioner, reads as follows: “ * * * Upon the surrender of the said lands to the state, the owner of said improvements shall be paid, from the general fund of the state, the appraised value thereof, and the amount of such damages.” Section 5 of Article 9 of the Constitution of Arizona reads in part as follows: “ * * * No money shall be paid out of the state treasury, except in the manner provided by law.” This has been construed to mean that no money can be paid out of the state treasury unless the legislature has made a valid appropriation for such purpose and funds are available for the payment of the specific claim. Eide v. Frohmiller, 70 Ariz. 128, 216 P.2d 726; Crane v. Frohmiller, 45 Ariz. 490, 45 P.2d 955. There are certain definite and well-defined rules to test the validity of appropriation's. No rule is better settled than that to constitute a valid appropriation payable out of the general fund the Act must fix a maximum limit as to the amount that can be drawn under it. Eide v. Frohmiller, supra; Crane v. Frohmiller, supra. If this, was not the law there would be no limit to* the amount of money that could be drawn thereunder and the public treasury would be wholly unprotected against claims of an undetermined amount. Furthermore the state government would never be able to ascertain with any degree of certainty where it stood financially. It will be seen that the attempted appropriation under Sec. 11-1002, supra, does not meet the requirements of the above rule. It does not appropriate a definite and certain amount to the payment of these claims. It is an attempt to make an unlimited appropriation from the general fund. This is in effect giving a blank check against the public treasury, with no* .maximum amount beyond which the appropriation cannot go. We hold that the attempted appropriation under Sec. 11-1002, supra, is opposed to the provisions of Sec. 5 of art. 9 of the Constitution of Arizona as interpreted by this court, and therefore must be declared unconstitutional and void. The respondent cannot be required to act under an unconstitutional provision and hence she rightly refused to draw a warrant for the petitioner’s claim. The petitioner raises other interesting questions but in view of what has been decided it is unnecessary to consider them. The alternative writ of mandamus is quashed. STANFORD, PHELPS, DE CONCINI and LA PRADE, JJ., concur.

DE CONCINI, Justice. Blanch Tschuor, one of plaintiffs-appellant, was apprehended by the town marshal of Buckeye and placed in the city jail about two o’clock Sunday morning September 26, 1948. On Monday, the mar-, shal stated under oath before Bill Meek, defendant-appellee, the duly qualified and acting justice of the peace of Buckeye precinct, that Mrs. Tschuor, when arrested, was drunk and abusive; that he told her she was under arrest for disturbing the peace, and that she so resisted such arrect that it was necessary to use force to- incarcerate her. At one o’clock p. m. on Sunday, upon being informed of the foregoing circumstances, Meek authorized her release upon her posting a $30 bond conditioned upon her appearance the following day. The bond was posted and she was released. Upon appearing before Meek on Monday, appellant Blanch Tschuor was informed she was charged with obstructing a public officer, a felony, and a criminal complaint was filed against her. She was ordered to appear the following morning for a preliminary hearing on the complaint. At that hearing Mrs. Tschuor appeared through her attorney who waived preliminary examination. Meek then entered his order holding her to answer in the superior court on the felony complaint and fixed her bail at $500; bond for which was posted. Ten days following her arrest the county attorney informed the superior court that no information would be filed against her. The court then made an order dismissing the charge against her and exonerating her bond and the surety thereon. Appellants then proceeded to bring suit for damages against appellees Meek and his surety, the Globe Indemnity Company, alleging that Meek, in his official capacity as justice of the peace, acted maliciously, without probable cause, and with design to injure appellant. On the day set for trial appellees made a motion to dismiss appellants’ complaint, which motion was granted. This appeal followed. Appellants predicate their appeal on two allegedly unlawful acts committed by Meek. The first of these is that before releasing Blanch Tschuor on the day of her arrest, he required that she deposit a bond of $30 and that she appear before him on the next day, which took place before a criminal complaint had been filed against her. Appellants rely on Sec. 44-301, A.C. A.1939: “Commencement of action—Complaint.—All criminal actions and proceedings brought before any magistrate for a public offense, triable within the county, shall be commenced by complaint, in writing, under oath, setting forth the offense charged, with such particulars of time, place, person and property as to enable the defendant to understand distinctly the character of the offense complained of. * * ” and urge that under that section Meek was without jurisdiction to act in the aforementioned manner. We hold that Meek’s action in requiring a bond before releasing Blanch Tschuor violated no legal right of appellants. On the contrary it furnishes a splendid example of the Good Samaritan endeavoring to confer an undeserved favor which the beneficiary now condemns as tortious, entitling her to damages. Under the facts as disclosed by the record, she had been legally arrested and placed in jail Sunday morning. This is true regardless of whether the person making the arrest was or was not a duly qualified town marshal. A private person may lawfully make an arrest under such circumstances. Sec. 44—125, A.C.A.1939. Meek was under no obligation to act in her behalf in any way until the marshal brought her before him on the following Monday morning and thereupon made his complaint. As stated above, Meek’s acts of requiring bail and then releasing her constituted an accommodation, a chivalrous gesture, rather than an invasion of any right of which she may think herself possessed. The second act of which appellants complain is Meek’s binding Mrs. Tschuor over to the superior court and requiring her to give bond for her appearance there. Appellants argue that because the complaint alludes to the arresting officer as "night marshall” (instead of "town mar-shall”), and because there is no such public official as “night marshall,” the complaint did not charge her with a crime. In the words of appellants’ counsel, “* * * no complaint was filed charging plaintiff, Blanch Tschuor, with a crime.” Appellants insist that this renders Meek liable in damages to her. Nothing could be further from the spirit of the law as we take it to be. It is apparent that appellants are attempting to found their case on a hyper-technicality. The criminal complaint alleges all the elements of the crime with which it charged her, “Obstructing Public 'Officer.” The inadvertent substitution ' of the word “night” -for the word “town,” when all the other necessary elements to charge the offense were present, is insufficient to settle liability on Meek. We are aware of the fact that it is the right of every criminal defendant, and of his counsel, to utilize any and all defenses in his behalf; however, we will not extend this doctrine to literally hamstring a magistrate in the conscientious administration of his office. Appellants claim that the acts of Meek complained of were without legal sanction because he had no jurisdiction over the subject matter of the case, the complaint being insufficient. Appellants quote from the case of State v. Phelps, 67 Ariz. 215, 193 P.2d 921, 925, in support of their argument, to wit: “ ‘ “Jurisdiction over the subject-matter” is the right of the court to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending; * * * Sections 44-301 and 44-302, A.C.A.1939, expressly make it the duty of a magistrate to do just what appellee Meek did in the instant case. That he had jurisdiction of the subject matter is not open to question. As appellees point out, had appellants’ counsel completed the quotation above, the defect in his argument concerning jurisdiction would have become obvious. The court in the Phelps case continues: “ * * and not whether the particular case is one that presents a cause of action, or, under the particular facts, is triable before the court in which it is pending, because of some inherent facts which exist and may be developed during the trial. * * * ’” (Emphasis supplied.) It remains only to consult the general rule as set out in 31 Am.Jur., Justices of the Peace, Sec. 25. After citing several cases in which liability .attached to the magistrate, it is said: “ * * * On the other hand, it does not matter that the complaint is insufficient in law where there is a bona fide attempt to charge an offense within the justice’s jurisdiction, and the complaint is merely voidable or insufficient on account of some defect or irregularity.” Judgment affirmed. UDALL, C. J., and STANFORD, PHELPS and LA PRADE, JJ., concur.

VICE CHIEF JUSTICE PELANDER, opinion of the Court: ¶ 1 In this employment dispute, the parties submitted them respective claims to mandatory arbitration under their employment contract’s broad arbitration provision, which neither side challenged. The arbitrator ruled in favor of the employer, concluding that it properly rescinded the contract based on the employee’s underlying misrepresentations and omissions. The final arbitration award, which the superior court later confirmed at the employer’s request, fully settled all claims and counterclaims submitted to arbitration and denied all claims not expressly granted in the award. Applying the “separability” doctrine, we hold that the employer, having not specifically challenged the contract’s arbitration provision, may not litigate in this action claims against the employee that, at the least, were permissive counterclaims in the arbitration. I. ¶ 2 Winslow Memorial Hospital, Inc., doing business as Little Colorado Medical Center (“LCMC”), is a nonprofit corporation that operates a hospital in Winslow. In 2003, LCMC hired Jeffrey Hamblen as its president and CEO. Before he was hired, Ham-blen misrepresented two aspects of his prior employment with another entity with which LCMC had a management services agreement. First, Hamblen falsely told LCMC that he would not receive any severance payments from the other entity. And second, Hamblen failed to disclose an amendment to the management services agreement that required LCMC to reimburse the other entity for the severance payments it made to Ham-blen. ¶ 3 The 2013 Hamblen/LCMC employment contract included this arbitration provision: Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules ... and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. All counterclaims that would be compulsory or permissive under Federal Rule of Civil Procedure 13(a) and (b) if the claim were filed in court shall be asserted in the arbitration and not otherwise. ¶ 4 In early 2014, after learning that Ham-blen was receiving severance payments for which it was obligated to reimburse the other entity, LCMC placed Hamblen on administrative leave. Hamblen then notified LCMC that he was terminating the employment contract, alleging “good reason” under that agreement. LCMC in turn notified Hamblen that it was rescinding the employment contract or, alternatively, terminating him for cause. Hamblen then filed an arbitration demand with the American Arbitration Association, claiming that LCMC owed him severance pay under the contract on the ground that he had “good reason” to terminate it. Shortly thereafter, LCMC filed this action in superior court, alleging an unjust enrichment claim against Hamblen. ¶ 5 Hamblen moved to compel arbitration, arguing that LCMC’s claim was subject to the employment contract’s arbitration provision. LCMC opposed the motion on several grounds, including its contention that it was entitled to rescind the employment contract because of Hamblen’s fraudulent misrepresentations and omissions. Despite that argument, the superior court granted the motion and stayed the case “until mandatory arbitration under the contract is completed.” ¶ 6 The parties then engaged in extensive prehearing disclosures and preparation for the arbitration. LCMC asserted various counterclaims, including its claim for unjust enrichment. (Although LCMC continued to pursue its unjust enrichment counterclaim at the arbitration hearing, it purportedly withdrew that claim in a post-hearing memorandum to the arbitrator.) LCMC also sought rescission of the employment contract based on Hamblen’s fraudulent misrepresentations and omissions. LCMC did not, however, challenge the arbitration clause itself (as opposed to the entire employment contract). The parties then participated in a multi-day arbitration hearing. ¶ 7 In October 2015, the arbitrator entered his awai’d: (a) denying Hamblen’s claim for severance pay because he terminated the agreement without “good reason”; and (b) ruling that “LCMC had grounds to rescind, and did rescind,” the employment contract based on Hamblen’s misrepresentations and omissions, which “abrogates the agreement and undoes it from the beginning.” The award also provided that “[t]his Pinal Award is in full settlement of all claims and counterclaims submitted to this Arbitration,” and that “[a]ll claims not expressly granted herein are hereby denied.” ¶ 8 Following the arbitration process, LCMC moved in superior court to confirm the final award. LCMC also asked the court to lift the stay to allow LCMC to seek damages from Hamblen for various claims LCMC asserted, or could have asserted, in the arbitration, including its unjust enrichment claim that the court had previously ordered LCMC to arbitrate. Hamblen did not oppose confirmation of the award, but did oppose the rest of LCMC’s request and urged the court to enter a “simple judgment in LCMC’s favor, with no monetary award for any party,” consistent with the arbitration award’s language. ¶ 9 In February 2016, the superior court entered judgment confirming the arbitration award but also lifting the stay and granting LCMC leave to amend its complaint. The court acknowledged Hamblen’s argument that, based on the arbitration proceedings and final award, LCMC should be foreclosed from reasserting its counterclaims in this action. But the court rejected that argument, noting that the arbitrator found that LCMC had “grounds to and did rescind the LCMC/Hamblen Employment Agreement,” which “abrogated] the agreement and undid it from its very beginning.” Consequently, the court ruled, Hamblen’s request “to deny [LCMC’s] right to a jury trial to prove damages” on its claims “is unreasonable as the contract was rescinded and undid [sic] from its very beginning.” ¶ 10 Hamblen later moved for a new trial or, alternatively, to alter or amend the judgment under Arizona Rule of Civil Procedure 59. He argued that the arbitration award disposed of all claims between the parties— including LCMC’s counterclaims—and that the court overstepped its authority under the Revised Uniform Arbitration Act (“RUAA”), A.R.S. § 12-3001 to -3029, by ruling that LCMC could reassert its counterclaims in this court action. LCMC, in turn, moved to amend its complaint to assert various claims against Hamblen. ¶ 11 In April 2016, the superior court denied Hamblen’s motions, ruling that (1) both parties jointly requested the court to confirm the arbitration award, and that “the Court did in fact confirm the final arbitration award by written order”; and (2) because LCMC rescinded the employment contract, which ‘“undoes it from the beginning,’” LCMC was “entitled to a jury trial on its claims.” By separate order, the court also granted LCMC’s motion to amend its complaint. ¶ 12 The court of appeals declined jurisdiction of Hamblen’s ensuing special action. We granted review because the case presents an issue of statewide importance and first impression before this Court—whether the separability doctrine applies to post-arbitration confirmation proceedings and precludes court litigation of arbitrable claims when the agreement’s arbitration provision was not specifically challenged, even though the arbitrator finds grounds for rescinding the entire agreement. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24. II. ¶ 13 Fifty years ago, the United States Supreme Court adopted what became known as the “separability” doctrine in the arbitra tion context. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). The issue there was whether the federal court or an arbitrator should resolve a claim of fraud in the inducement of a contract providing for arbitration. Id. at 397-98, 402, 87 S.Ct. 1801. Applying the applicable Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, the Court held that “if the claim is fraud in the inducement of the arbitration clause itself—an issue which goes to the ‘making’ of the agreement to arbitrate—the federal court may proceed to adjudicate it. But the statutory language does not permit the federal court to consider claims of fraud in the inducement of the contract generally.” Id. at 403-04, 87 S.Ct. 1801. ¶ 14 More recently, the Supreme Court affirmed and applied the Prima Paint rule when the parties’ contract contained an arbitration clause, but a party opposed arbitration and sought to litigate in federal court her claim of uneonscionability under state law. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 65-66, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). Rejecting that position, the Court ruled that one may prevent arbitration of claims within the arbitration agreement’s scope only if he or she “challenges specifically the validity of the agreement to arbitrate,” rather than “challenging] the contract as a whole,” for example, based on its having been “fraudulently induced.” Id. at 70, 130 S.Ct. 2772 (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006)). Accordingly, the Court held that “a party’s challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.” Id. ¶ 15 Although this Court has not previously addressed the separability doctrine, our court of appeals has. Relying on Prima Paint and applicable statutes in Arizona’s Uniform Arbitration Act, A.R.S. §§ 12-1501, -1602, the court of appeals embraced the doctrine over thirty years ago, ruling that “the arbitration clause is considered to be an agreement independent and separate from the principal contract.” U.S. Insulation, Inc. v. Hilro Constr. Co., Inc., 146 Ariz. 250, 253, 705 P.2d 490 (App. 1985). As that court observed, except where the parties otherwise intend—arbitration clauses as a matter of federal law are “separable” from the contracts in which they are embedded, and ... where no claim is made that fraud was directed to the arbitration clause itself, a broad arbitration clause will be held to encompass arbitration of the claim that the contract itself was induced by fraud. Id. (quoting Prima Paint, 388 U.S. at 402, 87 S.Ct. 1801) (second emphasis added in U.S. Insulation); see also WB, The Building Co., LLC v. El Destino, LP (“WB”), 227 Ariz. 302, 306-07 ¶ 11, 257 P.3d 1182 (App. 2011) (noting as “well-established that arbitration agreements are severable from the rest of the contract, and therefore, a court may only stay arbitration if there is a challenge to the arbitration clause itself’); Stevens/Leinweber/Sullens, Inc. v. Holm Dev. & Mgmt., Inc. (“SLS”), 165 Ariz. 25, 29, 795 P.2d 1308 (App. 1990) (concluding that “the doctrine of separability is inherent in the language of A.R.S. § 12-1501”). ¶ 16 We agree with the court of appeals that Arizona law codifies the separability doctrine and thus applies to all contracts governed by RUAA and/or the Uniform Act. “Read in conjunction, [A.R.S. §§ 12-1501 and 12-1502] embody the concept of separability endorsed” in Prima Paint. U.S. Insulation, 146 Ariz. at 253, 705 P.2d 490; see also SLS, 165 Ariz. at 28 n.3, 795 P.2d 1308 (observing that § 12-1502(A) tracks the FAA, 9 U.S.C. § 4, on which Prima Paint relied “to limit a court’s inquiry to a determination of whether an enforceable arbitration clause exists”); § 12-1501 (stating that arbitration agreements are “valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract”); § 12-1602(A) (limiting judicial inquiry to whether an arbitration agreement exists). ¶ 17 In addition, in 2010 Arizona adopted RUAA, which “governs an agreement to arbitrate made on or after January 1, 2011,” including the agreement here. AR.S. § 12- 3003(A)(1). Section 6(c) of that uniform act incorporates the separability doctrine, and Arizona adopted that language verbatim in RUAA. A.R.S. § 12-3006(0 (“An arbitrator shall decide ... whether a contract containing a valid agreement to arbitrate is enforceable.”). In addition, “[i]n applying and construing” RUAA, Arizona courts are to consider “the need to promote uniformity of the law with respect to its subject matter among states that enact it.” A.R.S. § 12-3028. In short, RUAA further supports the separability doctrine. III. ¶ 18 Before addressing the parties’ positions on the doctrine’s application to this case, we make two points. First, RUAA specifically provides that beginning in January 2011, “this chapter shall not apply to an agreement to arbitrate any existing or subsequent controversy ... [bjetween an employer and employee.” AR.S. § 12-3003(B)(1). Arizona’s Uniform Arbitration Act contains a parallel provision. See North Valley Emergency Specialists, L.L.C. v. Santana, 208 Ariz. 301, 302 ¶ 1, 93 P.3d 501, 502 (2004) (holding that A.R.S. § 12-1517 exempts from the Uniform Arbitration Act “all arbitration agreements between employers and employees,” not only such agreements contained in collective bargaining contracts). ¶ 19 The parties did not waive those non-applicability provisions by entering into an employment agreement with an arbitration clause. But both parties acknowledge they voluntarily “opted in” to RUAA and the Uniform Act, and we accept the parties’ agreement on this point. See A.R.S. §§ 12-3004(A) (“Except as otherwise provided in subsections B and C of this section, a party to an agreement to arbitrate or to an arbitration proceeding may waive, or the parties may vary the effect of, the requirements of this chapter to the extent permitted by law.”); 12-3004(B), (G) (omitting agreements to arbitrate employment disputes from listing of conditionally waivable and non-waivable matters under RUAA). Therefore, for purposes of this case we deem RUAA and the Uniform Act applicable. ¶ 20 Second, even had the parties not waived the Arizona laws that exempt employment agreements from RUAA and the Uniform Act, “[t]he FAA preempts state law and governs all written arbitration agreements involving interstate commerce, making such agreements enforceable in both federal and state courts.” S. Cal Edison Co. v. Peabody W. Coal Co., 194 Ariz. 47, 51 ¶ 13, 977 P.2d 769, 773 (1999). And the FAA applies to arbitration agreements in employment contracts. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001); see also Rent-A-Center, 561 U.S. at 65-71, 130 S.Ct. 2772 (applying separability doctrine to employment contract). Nonetheless, consistent with the parties’ arguments, wé limit our analysis and conclusion to Arizona law, without considering whether the agreement here falls within Congress’s Commerce Clause powers and is thus covered by the FAA. See generally Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995); Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996). IV. ¶ 21 Hamblen argues that the separability doctrine applies to not only pre-arbitration challenges to motions to compel arbitration, but also post-arbitration proceedings. Proper application of the doctrine here, Hamblen asserts, leads to several conclusions. First, “an arbitrator’s decision to rescind a contract containing an arbitration provision does not impact the validity of the arbitration provision itself.” Second, “once a trial court properly compels arbitration, the parties may not later litigate claims subject to the governing arbitration provision.” Thus, Hamblen contends, the doctrine “precluded the superior court from permitting further litigation between the parties,” particularly after the court confirmed the arbitration award. ¶ 22 LCMC counters with two points, one procedural and the other substantive. First, it argues that Hamblen’s current attempt to preclude superior court litigation of its various claims is premature, inasmuch as he never filed a motion for dismissal or summary judgment on those claims based on res judicata, merger, or otherwise. The superior court, therefore, had no “opportunity to consider or rule upon Hamblen’s potential dis-positive motion.” We disagree. Hamblen clearly argued below that, as a matter of law, the confirmed arbitration award and separability doctrine foreclose further litigation of LCMC’s claims, and the superior court clearly understood and rejected that argument. Hamblen’s argument here, therefore, is not premature or procedurally deficient. ¶ 23 Substantively, LCMC argues that the parties’ dispute “is merely with respect to the scope of the effect of the [arbitration] award, which the parties agree is final and enforceable.” Relying on Clarke v. ASARCO, Inc., 123 Ariz. 587, 589, 601 P.2d 587, 589 (1979), LCMC contends that “[t]he arbitrator’s subject-matter jurisdiction is .., ‘limited in scope to issues raised by the arbitration agreement.’” We agree with that proposition, but it does not aid LCMC. ¶ 24 In Clarke, this Court affirmed the superior court’s order denying arbitration because the arbitration provision in the parties’ contract was limited and governed only certain specified disputes, and the disputes involved in the case went “far beyond the scope of issues which the parties intended to submit to arbitration under the terms of the agreement to arbitrate.” Id. As we observed, “[p]arties are only bound to arbitrate those issues which by clear language they have agreed to arbitrate,” and in Clarke the parties’ “contract could have required that all disputes arising out of the contract as a whole be subject to arbitration,” but did not so state. Id. ¶ 25 Here, in contrast, the Ham-blen/LCMC employment contract broadly required arbitration of “[a]ny controversy or claim arising out of or relating to” the employment contract. That language is not limited to contract claims, but also encompasses any tort claims arising out of or related to the parties’ employment contract. LCMC does not dispute that the various tort claims it seeks to litigate under its amended complaint in superior court fall within that language. Nor does LCMC contest that its pending tort claims constitute permissive counterclaims in the arbitration and thus are covered by the agreement’s mandate that all “compulsory or permissive” counterclaims “shall be asserted in the arbitration and not otherwise.” ¶26 LCMC argues, however, that Ham-blen’s position exhibits “a fundamental misunderstanding of the separability doctrine.” According to LCMC, under Hamblen’s view “neither the court nor the arbitrator had any authority to decide LCMC’s claim that the entire contract, including the arbitration clause, was invalid.” But Hamblen has never challenged the arbitrator’s exclusive authority to rule on LCMC’s rescission claim, nor did Hamblen contest the superior court’s confirmation of the arbitration award, which found LCMC’s rescission supported and appropriate. Rather, Hamblen’s argument is based on the fact that LCMC neither specifically challenged the validity of the arbitration provision nor sought to limit the scope of the arbitration proceeding or the arbitrable claims submitted there. Under those circumstances, he asserts, “the separability doctrine requires that once the superior court properly compelled arbitration” and later confirmed the arbitration award, “LCMC could never litigate any claims (permissive or compulsory) against Hamblen that existed at that time.” And that is so, Hamblen contends, even when, as in this case, the arbitrator finds valid grounds to rescind the contract in which the arbitration agreement is found. ¶ 27 Without citing any authority, LCMC counters that “[o]nce the arbitrator had determined that LCMC had properly rescinded the entire contract,” “the arbitrator no longer had any power to decide any other claims that were or could have been asserted by LCMC against Hamblen.” But this argument is unsupported and inconsistent with the separability doctrine, the arbitration provision, the arbitration award, the superior court’s confirmation of that award, RUAA, and arbitration-related policy considerations. ¶ 28 Unlike the party that opposed arbitration in WB, LCMC did not “challenge the validity of the arbitration agreement separately and distinctly from [its] challenge of the underlying contract.” 227 Ariz. at 307 ¶ 13 & n.4, 257 P.3d 1182; see also SLS, 165 Ariz. at 29, 795 P.2d 1308 (affirming superior court’s order denying motion to compel arbitration when party “challeng[ed] the validity of the arbitration provision, but not the validity of the principal contract”). Had LCMC separately and specifically challenged, even on identical grounds, “both [the] arbitration agreement and the underlying [employment] contract,” WB, 227 Ariz. at 307 ¶ 13, 257 P.3d 1182, the superior court conceivably could have found the arbitration clause to be unenforceable, denied Hamblen’s motion to compel arbitration, retained jurisdiction, and ruled on the merits of all claims. Cf. Prima Paint, 388 U.S. at 404, 87 S.Ct. 1801 (“[I]n passing upon a[n] ... application for a stay while the parties arbitrate, a federal court may consider only issues relating to the making and performance of the agreement to arbitrate.”). But that is not what happened here. ¶ 29 Under the separability doctrine, therefore, the superior court properly compelled arbitration of all claims relating to the parties’ employment agreement, including LCMC’s claim for rescission. Cf. Buckeye Check Cashing, 546 U.S. at 445-46, 126 S.Ct. 1204 (stating that “unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance’’); Saint Agnes Medical Center v. PacifiCare of California, 31 Cal.4th 1187, 8 Cal.Rptr.3d 617, 82 P.3d 727, 735 (2003) (“[T]he central rationale of Prima Paint was that an arbitration clause is separable from other portions of a contract, such that fraud in the inducement relating to other contractual terms does not render an arbitration clause unenforceable, even when such fraud might justify rescission of the contract as a whole.”). Under these circumstances, we agree with Hamblen that the doctrine should apply here in the post-arbitration context. ¶ 30 Once the parties’ dispute was correctly referred to arbitration, LCMC was required under their agreement to present in that proceeding all counterclaims, permissive or otherwise, that arose out of or related to the Hamblin/LCMC employment agreement. Consistent with that requirement, LCMC identified numerous claims against Hamblen in its arbitration disclosure statement. That LCMC chose to not present certain claims does not justify its later asserting them in its amended complaint in superior court. And although the arbitrator found valid grounds for LCMC’s rescission of the employment contract, that ruling did not vitiate the unchallenged arbitration clause in the parties’ contract or preclude the arbitrator from also deciding all of the parties’ employment related claims. Cf. Verma v. Stuhr, 223 Ariz. 144, 158 ¶ 73, 221 P.3d 23 (App. 2009) (although “rescission is meant to restore the parties to their pre-contract status,” “a contract may be partially rescinded when the contract is divisible or severable”). Indeed, the arbitrator stated that the final award was “in full settlement of all claims and counterclaims submitted” to arbitration and denied “[a]ll claims not expressly granted” in the award. ¶31 The superior court’s confirmation of that award was unqualified and unchallenged. That confirmation was in keeping with RUAA, which strictly limits the superior court’s options after the arbitration process is complete. See A.R.S. § 12-3022 (requiring a court to confirm an arbitration award “unless the award is modified or corrected ... or is vacated,” actions that were neither requested nor appropriate here). In view of the confirmed arbitration award, neither RUAA nor any other authority permitted further litigation, via LCMC’s amended complaint that the superior court authorized, of arbitra-ble claims that could and should have been pursued in the arbitration. As Hamblen points out, permitting a party to later litigate arbitrable claims in court, after unlimited arbitration proceedings have concluded and the arbitration award has been confirmed, “would result in tremendous waste and dis courage parties from entering into arbitration agreements.” ¶ 32 Finally, our conclusion advances the policies underlying arbitration and the separability doctrine. See Prima Paint, 388 U.S. at 404, 87 S.Ct. 1801 (noting that the separability doctrine “not only honor[s] the plain meaning of the [FAA] but also the unmistakably clear congressional purpose that the arbitration procedure, when selected by the parties to a contract, be speedy and not subject to delay and obstruction in the courts”). As discussed above, when parties contractually agree to arbitrate any disputes and the arbitration provision is not specifically and separately challenged, the applicable United States Supreme Court and Arizona cases require that a general challenge to the validity of the contract be submitted to arbitration. Although those cases do not squarely address what happens “next” if the arbitrator concludes that the contract as a whole— including its arbitration clause—is unenforceable or rescinded, the underlying purpose and policy of the separability doctrine support Hamblen’s position. ¶ 33 Because the separability doctrine presumes that the arbitration clause is separable from the overall contract, where, as here, the parties agree to a broad arbitration clause that is not specifically challenged, that provision will apply even if the arbitrator finds that the overall contract is void or voidable. And this is so unless (1) the parties have provided otherwise in their contract; (2) the parties stipulate to a bifurcated procedure in which they may later litigate claims in court if the arbitrator finds the entire contract void or voidable; or (3) the party opposing arbitration establishes that the clause itself is unenforceable. Thus, the separability doctrine operates as a presumption that the parties intend an arbitration clause to be severable from the rest of the agreement, but—consistent with the notion that the scope of contractual arbitration turns on the parties’ agreement—the parties can themselves provide otherwise. ¶34 This construct also aligns with the general underlying goals of arbitration. “The primary purpose of arbitration is to provide an alternative to litigation so that the parties may ‘obtain an inexpensive and speedy final disposition of the matter.’ ” Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., Inc., 180 Ariz. 148, 152, 882 P.2d 1274, 1278 (1994) (quoting Smitty’s Super-Valu, Inc. v. Pasqualetti, 22 Ariz.App. 178, 182, 525 P.2d 309 (1974)). When parties have agreed to submit their claims to arbitration, “the parties, having chosen a different tribunal, may not reinstate judicial tribunals to resolve the controversy.” Id.; see also S. Cal. Edison Co., 194 Ariz. at 52 ¶ 17, 977 P.2d at 774 (recognizing purpose of arbitration as affording “prompt, efficient, and inexpensive dispute resolution”); SLS, 165 Ariz. at 29, 795 P.2d 1308 (recognizing “the strong public policy favoring arbitration as the preferred means of dispute resolution”). Litigating anew LCMC’s various claims against Hamblen, as LCMC urges and the superior court sanctioned, would undercut those fundamental policies, result in considerable duplication of effort, and require additional time and expense, all after costly, time-consuming arbitration proceedings to which the parties agreed and the court ordered. Accordingly, we hold that LCMC is barred from litigating its claims against Hamblen in superior court. V. ¶ 35 For the reasons stated, we reverse the superior court’s judgments granting LCMC’s motion to amend its complaint and allowing LCMC to litigate its various claims against Hamblen in this action. We remand the case to the superior court with directions to dismiss the amended complaint. In our discretion, we deny Hamblen’s request for an award of attorney fees under A.R.S. § 12-341.01 and RUAA, A.R.S. § 12-3025(C). . RUAA, however, did not displace, and in some areas overlaps with, Arizona’s Uniform Arbitration Act, A.R.S. §§ 12-1501 to -1518. See Bruce E. Meyerson, Arizona Adopts the Revised Uniform Arbitration Act, 43 Ariz. St. L.J. 481, 486 (2011) (Because "RUAA does not entirely replace Arizona’s existing arbitration law,” "Arizona now has two [sets of] arbitration statutes.”).

OPINION SWANN, Judge: ¶ 1 The superior court dismissed appellants’ medical malpractice action without prejudice for failure to serve preliminary expert affidavits under A.R.S. § 12-2603. Appellants then sought to refile the action under Arizona’s “savings statute,” A.R.S. § 12-504, but the court found that relief was not available under that statute and dismissed the claims with prejudice. We affirm. First, we hold that appellants were not entitled to automatic relief under § 12-504, because the original dismissal constituted a dismissal for failure to prosecute within the meaning of the statute. Second, we hold that the court did not abuse its discretion by otherwise denying relief under § 12-504. FACTS AND PROCEDURAL HISTORY ¶ 2 In March 2013, Noreen and Clifford Passmore (“Plaintiffs”) filed a medical malpractice action against James W. McCarver, M.D., Ellen Lorenz, C.F.N.P., and Prescott Valley Primary and Urgent Care Clinic (collectively, “Defendants”). Concurrent with the complaint, Plaintiffs certified under A.R.S. § 12-2603(A) that “[ejxpert testimony ... may be necessary to prove Defendants fell below the standard of care.” But they did not thereafter serve preliminary expert affidavits within the time prescribed by § 12-2603(B). And though the parties later agreed to a March 2014 deadline for service of the affidavits and the court eventually approved the agreement, Plaintiffs failed to meet that deadline as well. Defendants then moved for dismissal. ¶ 3 By the time the court held oral argument in September 2014, Plaintiffs still had not provided the affidavits. The court granted Defendants’ motion to dismiss and directed them to submit a proposed form of judgment. Defendants’ proposed judgment contemplated a dismissal “with prejudice” and cited “the failure to ... prosecute this case,” an “intentional and willful failure to comply with a court order and Arizona statute,” and Ariz. R. Civ. P. 41(b), which authorizes presumptive “with prejudice” dismissals for failure to prosecute or comply with rales or court orders. Plaintiffs objected to the proposed judgment, arguing that the motion to dismiss had not mentioned Rule 41(b), that the court’s order had not mentioned either Rule 41(b) or intentional or -willful conduct, and that § 12-2503(F) required dismissal without prejudice. In November 2014, the court held that Defendants’ proposed judgment “exceeded] the scope of the Court’s ... Ruling,” and ordered the claims “DISMISSED without prejudice pursuant to A.R.S. § 12-2603(F).” ¶ 4 Approximately two weeks later, Plaintiffs refiled their claims. Defendants filed a motion to dismiss based on the statute of limitations. Plaintiffs did not dispute that the statute of limitations had expired, but argued that the new action was automatically proper under A.R.S. § 12-504 because the original dismissal was not for lack of prosecution. Plaintiffs also argued in the alternative that even if the dismissal was for lack of prosecution, the court should exercise its discretion under § 12-504 to permit the new action. ¶ 5 The court held that it “[would] not make new findings concerning [the] prior ease” but “[could] not ignore the result of the prior ease, given that the [same judge] was also the assigned judge” in that case. The court concluded that, “[h]aving considered all the facts and circumstances of what went on in that prior case, the Court does determine that the dismissal under [A.R.S. § 12-2603(F) ] was for lack of prosecution.” The court further concluded that “the exercise of discretion would not be appropriate and Plaintiffs’[ ]request for discretion for the savings of this particular case is denied.” The court dismissed the new action with prejudice. ¶ 6 Plaintiffs timely appeal. DISCUSSION ¶ 7 A.R.S. § 12-504 creates a remedial procedure by which plaintiffs may, in some circumstances, refile terminated actions without regard to the statute of limitations. Janson v. Christensen, 167 Ariz. 470, 470, 472, 808 P.2d 1222 (1991). The statute includes a mandatory provision and a discretionary provision. Roller Village, Inc. v. Superior Court (Dow), 164 Ariz. 196, 197, 741 P.2d 328 (App. 1987). First, § 12-504(A) provides: If an action is commenced within the time limited for the action, and the action is terminated in any manner other than by abatement, voluntary dismissal, dismissal for lack of prosecution or a final judgment on the merits, the plaintiff or a successor or personal representative, may commence a new action for the same cause after the expiration of the time so limited and within six months after such termination. (Emphases added.) Second, § 12-504(A) provides: If an action timely commenced is terminated by abatement, voluntary dismissal by order of the court or dismissal for lack of prosecution, the court in its discretion may provide a period for commencement of a new action for the same cause, although the time otherwise limited for commencement has expired. Such period shall not exceed six months from the date of termination. (Emphases added.) We interpret § 12-504(A)’s mandatory- and discretionary-relief provisions de novo. See Sedona Grand, LLC v. City of Sedona, 229 Ariz. 37, 39, ¶ 8, 270 P.3d 864 (App. 2012). We review the grant of a motion to dismiss and the denial of discretionary relief under § 12-504(A) for abuse of discretion. Dressler v. Morrison, 212 Ariz. 279, 281, ¶ 11, 130 P.3d 978 (2006); Copeland v. Ariz. Veterans Mem’l Coliseum & Exposition Ctr., 176 Ariz. 86, 91, 859 P.2d 196 (App. 1993). I. PLAINTIFFS WERE NOT ENTITLED TO AUTOMATIC RELIEF UNDER § 12-504(A), BECAUSE THE DISMISSAL OF THE ORIGINAL ACTION UNDER § 12-2603 WAS A DISMISSAL FOR FAILURE TO PROSECUTE. ¶ 8 Plaintiffs first contend that they were entitled to refile as a matter of right under § 12-504(A) because their initial action was dismissed in a “manner other than by abatement, voluntary dismissal, dismissal for lack of prosecution or a final judgment on the merits.” Specifically, they contend that a dismissal without prejudice under § 12-2603(F) is not equivalent to a dismissal for lack of prosecution. We hold that when a ease is dismissed for failure to serve a preliminary expert affidavit under § 12-2603, the dismissal is for lack of prosecution. ¶ 9 The superior court has discretion to dismiss cases that are not diligently prosecuted. Cooper v. Odom, 6 Ariz.App. 466, 469, 433 P.2d 646 (1967); see also Ariz. R. Civ. P. 41(b). “Mere delay can be the basis of dismissal.” Cooper, 6 Ariz.App. at 469, 433 P.2d 646. Failure to serve the preliminary affidavit required by § 12-2603 is an unambiguous form of delay. Section 12-2603 seeks to “curb frivolous medical malpractice lawsuits by imposing a stricter standard of pleading and setting deadlines for the early involvement of the plaintiffs expert witnesses.” Gorney v. Meaney, 214 Ariz. 226, 229, ¶ 8, 150 P.3d 799 (App. 2007). To that end, the statute defines specific tasks that must be completed by specific deadlines to prosecute claims against health care professionals, along with specific procedures whereby plaintiffs may obtain extensions of time and opportunities to cure deficiencies. See A.R.S. § 12-2603(A)-(C), (F). Accordingly, a dismissal for failure to comply with the statute’s directive to serve a preliminary affidavit is a dismissal for failure to proseeute. Plaintiffs’ second action therefore did not fall within the scope of § 12-504’s mandatory-relief provision—without regard to whether the court had firsthand knowledge of the original action, ¶ 10 The court’s ruling did not, as Plaintiffs contend, create “new findings refearding] the original case.” The court simply recognized the legal effect of the first judgment. And contrary to Plaintiffs’ contention, the fact that the court rejected Defendants’ proposed form of judgment in the first action does not compel a different outcome. The procedural history regarding the proposed form of judgment in the first action reflects that the court correctly declined to apply Rule 41(b)’s presumption of dismissals with prejudice in view of § 12-2603(F)’s prescription of dismissals without prejudice. See Ariz. R. Civ. P. 41(b) (“Unless the court in its order for dismissal othei’wise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits.”); Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 323, ¶ 20, 183 P.3d 1285 (App. 2008) (holding that § 12-2603 “does not contemplate dismissal with prejudice as a sanction for a deficient preliminary affidavit”), The procedural history does not suggest that the dismissal was for any reason other than Plaintiffs’ failure to serve preliminary expert affidavits and thereby proseeute their case. II. THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY DENYING DISCRETIONARY RELIEF UNDER § 12-504(A). ¶ 11 Plaintiffs next contend that they were entitled to relief under § 12-504(A)’s discretionary provision. The record supports the superior court’s denial of relief. ¶ 12 “[T]he very nature of the discretionary portion of [§ 12-504(A) ] requires a case-by-case application and evaluation.” Jepson v. New, 164 Ariz. 265, 271, 792 P.2d 728 (1990). The standard “muBt be flexible” and “must ensure that the statute is not misused as a safe haven for the dilatory and a loophole through which parties may avoid the applicable rules of practice and procedure.” Id, In deciding how to exercise its discretion under the statute, the court must consider several factors: “whether the plaintiff acted reasonably and in good faith, whether he prosecuted his case diligently and vigorously, whether a procedural impediment exists which affects his ability to file a second action, and whether either party will be substantially prejudiced.” Id. at 272, 792 P.2d 728 (citation omitted). The plaintiff bears the burden to show entitlement to relief. Id. ¶ 13 The record shows that Plaintiffs failed to file any affidavits under § 12-2603 even after obtaining a significant extension of time. Plaintiffs’ primary explanation for the delinquency was that they had difficulty determining the specialty of the expert who should opine as to McCarveris standard of care, and had difficulty communicating with their chosen expert regarding Lorenz’s standard of care, first because Plaintiffs’ counsel’s office flooded and later because the expert relocated. It was within the court’s discretion to find those explanations insufficient to justify a conclusion that Plaintiffs acted reasonably and in good faith, especially in view of the length of the delay and Plain tiffs’ failure to comply with the stipulated extension. Further, it was within the court’s discretion to find that the prejudice caused to Plaintiffs by denying relief under § 12-504 was outweighed by the prejudice that Defendants would suffer were the claims allowed to move forward in view of the extreme and unjustified delay. See Jepson, 164 Ariz. at 274, 792 P.2d 728 (“[Although the case is now barred by the statute of limitations and in balancing the prejudice in that regard it appears that the hardship is greatest upon [the plaintiff], all factors must be considered together.”). Considering the totality of the circumstances, the court reasonably concluded that Plaintiffs failed to meet their burden to show entitlement to relief under the savings statute. CONCLUSION ¶ 14 For the foregoing reasons, we affirm the court’s judgment dismissing Plaintiffs’ claims with prejudice. . We take judicial notice of relevant superior-court orders not included in the record on appeal. See In re Sabino R., 198 Ariz. 424, 425, ¶ 4, 10 P.3d 1211 (App. 2000). . Yavapai Regional Medical Center was also named as a defendant, but was later dismissed without objection.

OPINION MILLER, Judge: ¶ 1 Petitioner Juan Grijalva seeks review of the trial court’s order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. “We will not disturb a trial court’s ruling on a petition for post-conviction relief absent a clear abuse of discretion.” State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Grijalva has not sustained his burden of establishing such abuse here. ¶ 2 Pursuant to a plea agreement, Grijalva was convicted of theft of a means of trans portation. The trial court imposed a minimum, 2.5-year term of imprisonment in October 2012. The state requested restitution for the victim’s insurance company in the amount of $3,045.58. Defense counsel indicated she had not seen supporting documentation of the claim. The court suggested that she contact the prosecutor to work out a stipulation and gave the parties thirty days to file it. The court further ordered that it “retained] jurisdiction over the issue of restitution” and that counsel should “submit a stipulation regarding the amount of restitution owed.” ¶ 3 In March 2014, the state filed a motion for restitution, and the court ordered Grijal-va to pay $3,045.58 to the insurance company. Grijalva filed an opposition to the motion, and the court held a hearing at which it vacated its restitution order and gave the parties two weeks “to request a hearing or to submit a stipulation as to the amount of restitution.” The court filed an under-advisement ruling in May affirming its earlier grant and ordering the same amount of restitution to the insurance company. ¶ 4 Later in May, Grijalva filed a notice of post-conviction relief, arguing in his petition that the trial court had lacked jurisdiction to enter the restitution order and, in any event, the amount of restitution was too high. He also argued the court had erred in entering a criminal restitution order (CRO). The trial court granted relief insofar as it vacated the CRO for “fines, fees, and assessments,” but otherwise summarily denied relief, and denied Grijalva’s subsequent motion for reconsideration as well. ¶ 5 On review, Grijalva again contends the trial court lacked jurisdiction “to modify” his sentence by adding restitution. He argues the court could only add restitution by means of Rule 24.3, Ariz. R. Crim. P., additionally contending a sentence may only be changed if it is illegal and the correction is made within sixty days. ¶ 6 In arguing the trial court lacked jurisdiction to award restitution more than sixty days after the oral pronouncement of judgment, Grijalva relies on this court’s statement in State v. Serrano, that a “judgment and sentence are ‘complete and valid’ upon oral pronouncement, and cannot be modified thereafter except as provided by Rule 24.3, Ariz. R. Crim, P.” 234 Ariz. 491, ¶ 9, 323 P.3d 774, 777 (App. 2014) (citation omitted), quoting Ariz. R. Crim. P. 26.16(a). Rule 24.3 provides, in relevant part, that a “court may correct any unlawful sentence or one imposed in an unlawful manner within 60 days of the entry of judgment and sentence but before the defendant’s appeal, if any, is perfected.” ¶7 Serrano holds that a court lacks authority to later modify a defendant’s sentence to require him to register as a sex offender. 234 Ariz. 491, ¶ 9, 323 P.3d at 777. We explained that a registration requirement was not mandatory for Serrano’s offense, but could have been imposed, in the court’s discretion, had the state raised the issue at sentencing. Id, ¶7. Therefore, because the sentences originally imposed by the court “were not unlawful, ... [n]or ... imposed without regard for statutory and procedural rules,” we concluded “[t]he absence of a registration order ... did not allow the court to modify the judgment or sentences under Rule 24.3.” Id. ¶ 11. ¶ 8 The discretionary registration order in Serrano, as well as the order expunging a DNA profile in State v. Bryant, 219 Ariz. 514, 200 P.3d 1011 (App. 2008), on which Grijalva also relies, were modifications of the “complete and valid” sentences imposed earlier. Id. quoting Ariz. R. Crim. P. 26.16(a). In contrast, the restitution order here did not constitute a modification or correction of a sentence and judgment; rather, the trial court expressly reserved jurisdiction to later order restitution, which it was required to impose upon the presentation of sufficient evidence. See State v. Holguin, 177 Ariz. 589, 591, 870 P.2d 407, 409 (App. 1993). ¶ 9 We also find Serrano inapposite because we relied on the legislature’s “clear intent that any discretionary order that a person register as a sex offender must occur at the time of sentencing.” 234 Ariz. 491, ¶ 13, 323 P.3d at 778. In contrast, A.R.S. § 13-603(C), which requires the trial court to impose restitution, “is silent as to when restitution must be assessed,” notwithstanding that restitution generally “is ordered at the time of sentencing”—if the court has “sufficient evidence at that time” to support a restitution award. Holguin, 177 Ariz. at 591, 870 P.2d at 409. ¶ 10 In support of his claim that restitution must be ordered at sentencing, Grijal-va relies on language in Rule 26.16(a) providing that “[t]he judgment of conviction and the sentence thereon are complete and valid as of the time of their oral pronouncement in open court.” But Rule 26.10b), Ariz. R. Crim. P., limits the definition of “sentence” to “the penalty imposed upon the defendant after a judgment of guilty.” Although it has been recognized as “part of the sentencing process” in some contexts, “restitution is not a penalty or a disability.” State v. Zaputil, 220 Ariz. 425, ¶ 11, 207 P.3d 678, 681 (App. 2008). Rule 26.10(b), Ariz. R. Crim. P., governing pronouncement of sentence supports this conclusion. It lists a number of mandatory actions by the trial court, but the rule does not include or even mention restitution. ¶ 11 A restitution order made after sentencing does not impair appeal rights because such orders are separately appealable. State v. Fancher, 169 Ariz, 266, 266 n.1, 818 P.2d 251, 251 n.1 (App. 1991). Similarly, although a pleading defendant is required to challenge a restitution order in a timely Rule 32 proceeding, our supreme court has allowed a separate challenge to a contested post-judgment restitution order in that context as well. Hoffman v. Chandler, 231 Ariz. 362, 295 P.3d 939 (2013). Grijalva relies on the decision in Hoffman as authority for the proposition that a restitution order is part of a sentence, but the Hoffman court’s ruling did not extend so far. Rather, although the court determined for purposes of A.R.S. § 13-4033(B) restitution is part of a “sentence,” Hoffman, 231 Ariz. 362, ¶ 9, 295 P.3d at 941, it did not preclude separate appeals from all orders of restitution, id. ¶ 19. It determined that restitution orders could only be challenged in a Rule 32 proceeding if they had been “entered pursuant to a plea agreement that contemplated payment of restitution and capped the amount.” Id. And, Hoffman itself dealt with a restitution order that had been entered three months after sentencing. Id. ¶ 3. ¶ 12 Finally, although a victim may waive restitution by failing to comply with a time limit set by the court, this rule is a matter of procedure. See State v. Nuckols, 229 Ariz. 266, ¶ 5, 274 P.3d 536, 538 (App. 2012). A procedural rule is based on the orderly administration of justice rather than the court’s jurisdiction. Cf. Town of S. Tucson v. Bd. of Supervisors of Pima Cty., 52 Ariz. 575, 582, 84 P.2d 581, 584 (1938). ¶ 13 Grijalva also relies on In re Alton D., 196 Ariz. 195, 994 P.2d 402 (2000). In that case our supreme court determined that restitution claims must be resolved before a delinquency disposition is final and appeal-able. Id. ¶¶ 9-14. But the court expressly noted its decision was based on “statutes governing juvenile proceedings” and the “unique nature and policies underlying the juvenile system.” Id. n.6. It distinguished cases involving “restitution claims filed after final judgment [in] adult criminal actions.” Id. Grijalva notes many similarities between the juvenile and criminal statutes, but we cannot say criminal proceedings share the special purpose and policies applicable to delinquency adjudications. Id. Thus, we decline to extend the reasoning in Alton D. to criminal restitution orders. ¶ 14 In sum, we cannot say, under the circumstances presented in which a timely request for restitution was made, the trial court erred in retaining jurisdiction over restitution pending the filing of a stipulation. ¶ 15 We also reject Grijalva’s alternative arguments that the trial court erred in deeming the request for restitution timely. First, Grijalva contends the court imposed a deadline when it gave the parties thirty days to file the restitution stipulation. But the trial court determined it had not imposed a “dead line,” and Grijalva does not point to anything in the record contradicting that finding. Second, citing Alton D. and In re Michelle G., 217 Ariz. 340, 173 P.3d 1041 (App. 2008), he contends the eighteen months between sentencing and the state’s subsequent request for restitution was not within a “reasonable time.” But, as discussed above, we do not apply the rules set forth for juvenile proceedings to criminal restitution matters. ¶ 16 For these reasons, we grant the petition for review but we deny relief. . The trial court later found that defense counsel had not obtained a stipulation. It also noted that to obtain a favorable plea, Grijalva had waived the right to a restitution evidentiary hearing. Although the court relied on these facts to dismiss the petition, it addressed Grijalva's jurisdiction argument separately, as we do here. . Deoxyribonucleic acid.

OPINION VÁSQUEZ, Judge: ¶ 1 After a jury trial, Ronald Gulli was convicted of twenty-six counts of sexual exploitation of a minor and two counts of sexual conduct with a minor. The trial court sentenced him to consecutive prison terms totaling 482 years. On appeal, Gulli argues the court erroneously instructed the jury on the meaning of “sexual conduct” and his sentences for sexual exploitation violate his right to be free from cruel and unusual punishment. For the following reasons, we vacate Gulli’s convictions and sentences for sexual conduct with a minor, but we otherwise affirm. Factual and Procedural Background ¶ 2 We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining Gulli’s convictions. See State v. Williams, 236 Ariz. 600, ¶ 2, 343 P.3d 470, 471 (App. 2015). In June 2012, after Gulli’s wife became concerned about his persistent interest “in being with children” that “didn’t seem natural,” she went “snoop[ing]” in his home office and found a video disk containing photographs of naked young girls who appeared to be between eight years old and early teens. She copied the photos to a thumb drive and took it to the police department. Officers obtained a search warrant and seized Gulli’s computer. On it, they found twenty-four videos of female children engaged in various sexual acts. They also found two photographs of eleven-year-old M.M., taken on separate dates, lying down with a wooden dowel in her anus. M.M. was friends with Gulli’s nine- and twelve-year-old daughters. ¶ 3 A grand jury indicted Gulli for twenty-six counts of sexual exploitation of a minor under fifteen, two counts of sexual conduct with a minor under fifteen, and one count each of sexual abuse of a minor under fifteen and molestation of a child. On the state’s motion, the trial court dismissed the child-abuse and molestation charges. The jury found Gulli guilty of the remaining offenses, and the court sentenced him to seventeen-year prison terms for each of the sexual-exploitation counts and twenty-year prison terms for each of the sexual-conduct counts, all to be served consecutively. This appeal followed. We have jurisdiction pursuant to AR.S. §§ 12—120.21(A)(1), 13-4031, and 13-4033(A)(1). Jury Instructions ¶ 4 Gulli argues the trial court erred by instructing the jury on the definition of “sexual conduct.” He acknowledges that, because he failed to raise this argument below, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). Under this standard, Gulli must show that error exists, that it was fundamental, and that the error caused him prejudice. See State v. Juarez-Orci, 236 Ariz. 520, ¶ 11, 342 P.3d 856, 859-60 (App. 2015). We review de novo whether a jury instruction correctly states the law. State v. Hausner, 230 Ariz. 60, ¶ 107, 280 P.3d 604, 627 (2012). ¶ 5 Pursuant to A.R.S. § 13-1405(A), “[a] person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age,” “Sexual intercourse” is defined as “penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva.” A.R.S. § 13~1401(A)(4). “Oral sexual contact” means “oral contact with the penis, vulva or anus.” § 13—1401(A)(1). Consistent with these statutes, the grand jury indicted Gulli for sexual conduct with a minor under fifteen in amended counts 25 and 26 for “engaging in an act of sexual intercourse with [M.M.] ” by “inserting a wooden dowel into [her] anus.” ¶ 6 The final jury instructions included a description of the proof required for “sexual conduct with a minor” consistent with § 13-1406(A) and a definition of “sexual intercourse” pursuant to § 13-1401(A)(4). However, the trial court also specifically instructed the jury, “Regarding Counts 25 [and] 26: ‘Sexual Conduct’ means any direct or indirect touching, fondling, or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact.” (Emphasis added.) ¶ 7 Gulli points out that the jury instructions’ additional language for the meaning of “sexual conduct” mirrors the definition for “sexual contact” under § 13—1401(A)(3), which is “legally irrelevant” to § 13-1405(A), In addition, he argues the trial court committed fundamental, prejudicial error by giving this instruction because it “amplified the definition of the crime” and “allowed the jury to convict [him by finding] that he caused M.M. to place the dowel in her own anus.” The state concedes there was error here but maintains it was neither fundamental nor prejudicial. We disagree. Fundamental Error ¶ 8 Fundamental error is “error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.” Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). “[I]nstructing a jury on a non-existent theory of criminal liability is fundamental error.” State v. James, 231 Ariz. 490, ¶ 13, 297 P.3d 182, 185 (App. 2013). ¶ 9 “Sexual conduct” is not defined in § 13-1401(A). Instead, our legislature described “sexual conduct with a minor” as including “sexual intercourse” or “oral sexual conduct,” § 13—1406(A), and both of those terms are defined in § 13-1401(A). Thus, as Gulli notes, the definition of “sexual contact” in § 13—1401(A)(3) has no application to the offense of “sexual conduct with a minor.” ¶ 10 By instructing the jury on the definition of “sexual contact,” the trial court effectively created a non-existent way of committing sexual conduct with a minor. Gul-li was indicted for sexual conduct with a minor by “engaging in an act of sexual intercourse with [M.M.],” specifically by “inserting a wooden dowel in [her] anus.” “Sexual intercourse" requires “penetration” or “masturbatory contact,” § 13-1401(A)(4), and involves “at least two persons” participating in the act, State ex rel. Hamilton v. Superior Court, 128 Ariz. 184, 186, 624 P.2d 862, 864 (1981); State v. Flores, 160 Ariz. 235, 240, 772 P.2d 589, 594 (App. 1989). “Sexual contact,” on the other hand, includes “causing a person to engage” in certain conduct, § 13-1401(A)(3), meaning it encompasses acts “that an adult directs a victim to perform upon herself,” State v. Marshall, 197 Ariz. 496, ¶ 29, 4 P.3d 1039, 1047 (App. 2000). By instructing the jury that the definition of “sexual contact” is in fact “sexual conduct,” the court misstated the law and, in doing so, authorized the jury to find Gulli guilty even if M.M. had inserted the wooden dowel herself at Gulli’s direction. Cf. State v. Dickinson, 233 Ariz. 527, ¶¶ 11-12, 314 P.3d 1282, 1285-86 (App. 2013) (instructions allowing jury to convict defendant of attempted second-degree murder by finding he knew conduct would cause serious physical injury constitute fundamental error because no such offense exists). ¶11 Contrary to the state’s argument, the other jury instructions and the prosecutor’s closing argument did not “clar-if[y] the applicable law.” See State v. Tarr, 235 Ariz. 288, ¶ 14, 331 P.3d 423, 428 (App. 2014) (when determining whether jury instructions adequately state law, we must review them in entirety and may consider closing arguments). Although the trial court provided proper written instructions for the offense of “sexual conduct with a minor” and for the definition of “sexual intercourse,” those instructions did not help to define the elements of the offense in light of the additional definition of “sexual conduct” that expressly created another way of committing the offense. ¶ 12 The record also does not support the state’s contention that its closing argument “helped to clarify that the State had to prove that [Gulli] had knowingly penetrated M.M. with the dowel.” The prosecutor stated that sexual conduct with a minor “means the State has to prove to you that [Gulli] knowingly engaged in an act of sexual intercourse, meaning penetration, however slight, into the vagina or the anus of a person who is under the age of 15, that person you heard about, [M.M.].” But as we discuss below, this language did not clearly convey to the jury that Gulli had to do the penetrating. Accordingly, Gulli has met his burden of showing fundamental error. See James, 231 Ariz. 490, ¶ 13, 297 P.3d at 185. Prejudice ¶ 13 “Prejudice is a fact-intensive inquiry, the outcome of which will ‘dependí ] upon the type of error that occurred and the facts of a particular case.’” Dickinson, 233 Ariz. 527, ¶ 13, 314 P.3d at 1286, quoting James, 231 Ariz. 490, ¶ 15, 297 P.3d at 186. The defendant “must show that a reasonable jury, applying the appropriate [law], could have reached a different result.” Henderson, 210 Ariz. 561, ¶ 27, 115 P.3d at 609. In conducting this analysis, we consider “the parties’ theories, the evidence received at trial and the parties’ arguments to the jury.” Dickinson, 233 Ariz. 627, ¶ 13, 314 P.3d at 1286. ¶ 14 The state’s theory of the case was that Gulli “is a person who has an abhorrent sexual interest in children, made his house into a place where kids would want to come, and when they didn’t, he would invite them.” The defense’s theory of the ease was that, because “[M.M.] never disclosed, in any forensic interview, that the conduct which is purported to have occurred in Counts Twenty-five and Twenty-six .,. ever occurred,” it did not happen. Gulli further maintained that the only evidence related to those two counts were the photographs, which could have been “altered or changed in some way.” ¶ 15 Turning to the evidence presented at trial, the parties stipulated that, “during the forensic interview of [M.M.], she did not disclose any information about the penetration of her anus.” However, a detective testified that it is “not unusual” for victims to fail to disclose information “about [an] act of penetration.” And the state introduced evidence of two photographs taken on different dates depicting M.M. with a dowel in her anus. She was not called to testify at trial. ¶ 16 During its closing argument, the state asserted that Gulli “committed a hands-on offense against [M.M.], and then took photos of [it].” The state directed most of its initial closing argument to a discussion of the law and evidence supporting the charges of sexual exploitation of a minor. In that context, it noted that sexual conduct “is defined as sexual intercourse, it’s defined as penetration, however slight, into the vagina or rectum, or an act of masturbation, that would only apply to Counts One through Twenty-four in this case.” However, it subsequently stated that “[t]his is the same definition that you use for Counts Twenty-five and Twenty-six,” the counts alleging sexual conduct with a minor. ¶ 17 In his closing argument, defense counsel highlighted M.M.’s failure to report any incident involving a dowel. In addition, defense counsel asserted, “There is no corroboration for [the dowel pictures], none, that is their only evidence.” He further questioned whether the state had met its burden of proof: What are those pictures with the dowels? Are they real? ... [A]re they really what the State purports them to be? Do you know? Do you know beyond a reasonable doubt? Has somebody come in here and proven that to you? Has somebody proven to you that that was [Gulli] that took the picture? Has somebody even really proven to you that that was [M.M.] in the picture? ,.. [0]r is it an album of things that are photo shopped together? In its rebuttal closing argument, the state responded to Gulli’s claim that the photographs had been photoshopped as follows: So Counts Twenty-five and Twenty-six, the sexual conduct counts, if there is a real possibility that it’s photo shopped, and again, no evidence of that, but if that were a real, if you determine that that is a real possibility, he is not guilty of those two counts, but he is just as guilty in Counts Twenty-seven and Twenty-eight. ¶ 18 Based on the lack of evidence about how the dowel incidents occurred, we conclude that a reasonable jury, properly instructed on the offense of sexual conduct with a minor, could have reached a different result. See Henderson, 210 Ariz. 561, ¶ 27, 115 P.3d at 609. We reject as speculation the state’s assertion that Gulli must have inserted the dowel into M.M.’s anus while she was sleeping because there was another photo taken on the same day as one of the dowel incidents showing M.M. sleeping. Cf. State v. Trujillo, 227 Ariz. 314, ¶ 17, 257 P.3d 1194, 1198 (App. 2011) (speculation insufficient to show prejudice). ¶ 19 Indeed, it appears that the jury struggled with the precise issue presented here. During deliberations, the jury posed the following question: “If [M.M.] inserted the dowel herself, would ... Gulli still be guilty of engaging in an act of sexual intercourse? Regarding counts 25-26.” The trial court sent the following reply to the jury: “Please refer to the jury instructions regarding sexual conduct with a minor. In conjunction with all the jury instructions.” As Gulli points out, “There can be no reasonable claim that the jury, now redirected to the instructions for sexual conduct, would not have focused on the very same language and reached the same, legally false, conclusion.” Gulli has therefore met his burden of showing fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607-08. Accordingly, we vacate his convictions and sentences for sexual conduct with a minor. See State v. Abdi, 226 Ariz. 361, ¶ 33, 248 P.3d 209, 216 (App. 2011). Sentencing ¶ 20 Gulli contends his prison sentences for sexual exploitation of a minor, imposed pursuant to A.R.S. §§ 13-705 and 13-3553(C), violate his right to be free from cruel and unusual punishment. See U.S. Const, amends. VIII, XIV; Ariz. Const, art. II, § 15. However, he “essentially seeks a ruling that this court is not empowered to provide.” State v. McPherson, 228 Ariz. 557, ¶ 13, 269 P.3d 1181, 1186 (App. 2012). ¶21 As Gulli acknowledges, our supreme court concluded in State v. Berger, 212 Ariz. 473, ¶¶ 25, 51, 134 P.3d 378, 383, 388 (2006), that the defendant’s twenty consecutive ten-year prison sentences, imposed pursuant to §§ 13-705 and 13-3553(C) for the possession of child pornography, did not violate the Eighth Amendment’s ban on cruel and unusual punishment. The court noted: “Eighth amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence.” Id. ¶ 28, quoting United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988). Because this court is bound by the decisions of our supreme court and has no authority to overrule or disregard them, we must reject Gulli’s argument. See State v. Sullivan, 205 Ariz. 285, ¶ 15, 69 P.3d 1006, 1009 (App. 2003). ¶ 22 Gulli additionally contends that his sentences violate article II, § 15 of our state constitution, which Berger did not address. But in McPherson, 228 Ariz. 557, ¶¶ 14-16, 269 P.3d at 1186-87, this court determined that the Berger reasoning applies equally to “our nearly identical state constitutional provision” and that “[a]ny change in that approach would be in the exclusive purview” of our supreme court. Because we do not think that McPherson was “based upon clearly erroneous principles” or that “conditions have changed so as to render [it] inapplicable,” we decline Gulli’s invitation to reconsider our decision in that ease. State v. Patterson, 222 Ariz. 574, ¶ 19, 218 P.3d 1031, 1037 (App. 2009) (our prior decisions are “highly persuasive and binding”). Disposition ¶23 For the above reasons, we vacate Gulli’s two convictions and sentences for sexual conduct with a minor, but we affirm his convictions and sentences for sexual exploitation of a minor. . The offense is elevated to a class two felony if the person is under fifteen years of age. § 13— 1405(B). , Section 13-1401(A) was renumbered after Gul-li's conviction. See 2015 Ariz. Sess. Laws, ch. 209, § 2. We cite the current version of the statute here. .Although the written instructions for "sexual intercourse” aligned with § 13-1401(A)(4), as part of the oral instructions to the jury, the trial court stated that "sexual intercourse” included "masturbatory conduct," rather than "masturbatory contact." Because Gulli does not raise this issue on appeal and we find other error with the instructions, we do not address it. . Berger discusses A.R.S. § 13-604.01, which was renumbered to § 13-705. See 2008 Ariz. Sess. Laws, ch. 301, § 17.

JUSTICE LOPEZ, opinion of the Court: ¶ 1 This case concerns the standards a municipal zoning board applies in considering an application for a zoning variance. We hold that to obtain an area variance, an applicant must show that strictly applying a zoning ordinance will cause “peculiar and exceptional practical difficulties” that deprive a property of privileges enjoyed by other similarly zoned properties. We also clarify that the applicant’s desire to use the property for purposes allowed on other similarly zoned properties does not in itself constitute a self-imposed special circumstance justifying denial of an area variance. BACKGROUND ¶ 2 The dispute here concerns the City of Phoenix Board of Adjustment’s (the “Board”) grant of a variance on a parcel of land (the “Property”) at the southwest corner of McDowell Road and 32nd Street in Phoenix. The area in which the Property sits is zoned as a “Commercial C-3 District—General Commercial.” Such districts have 141 specific permitted uses plus all uses permitted in properties zoned C-l and C-2, and several residential uses. C-3 districts are designed to provide areas for “intensive commercial uses.” Phx., Ariz., Zoning Ordinance § 624(A) (hereinafter “Ordinance”). ¶ 3 The Property boasts a conspicuous history. For many decades, it was home to an “adult theatre” operated under various names. In 1973, the City of Phoenix completed an eminent domain action that altered the Property’s dimensions and resulted in several unique characteristics, all of which limited its commercial viability. First, the action reduced the Property to only 12,000 square feet, smaller than any of the twelve surrounding C-3-zoned corner parcels. Second, it eliminated the frontage area around the building on the Property, resulting in its direct abutment of a public sidewalk. Third, it restricted parking spaces. ¶ 4 In January 2010, the Property’s owners evicted their tenants, discontinued the Property’s use as an adult theatre (a non-eon-forming use), and leased the Property to William Jachimek, doing business as Central Pawn, with an option to purchase. When Jachimek entered the lease, he intended to operate a pawn shop. A pawn shop is a permitted use in a C-2-zoned parcel, provided the building’s exterior walls are at least 500 feet from a residential district and the owner obtains a use permit from the zoning administrator, Jachimek applied for both a use permit for his pawn business and, because the Property is within 500 feet of a residential district, a variance from the 500-foot residential setback requirement. ¶ 5 After the zoning administration hearing officer denied his applications, Jachimek appealed to the Board. At the Board hearing, Pawn 1st, LLC (“Pawn”), a competing pawn shop, opposed the variance. The Board conditionally approved the variance, requiring Ja-chimek to operate the pawn shop only during specified hours, to not buy or sell guns or pornography, and to apply for building permits for a promised remodel of the building within one year. The Board’s minutes from its July 1, 2010 meeting memorialize its findings: [Sjpecial circumstances ... appl[y] to the land, namely the unique nature of the discontinuance of the non-conforming use on the property [the adult theatre use], the fact that it was substantially impacted by prior [eminent] domain activities in a manner that was dissimilar to other properties in a reasonably close radius, including setbacks, and the fact that there [is] less than 12,000 total square feet available and there [are] restrictive parking requirements, that these special circumstances were not created by the owner or applicant, and were rather created in part by growth in the city itself, that it was necessary for the preservation and enjoyment of substantial property rights given the restrictions and the property and current dormancy of any other business on the site, this particular place on the site, that authorizing it would not be materially detrimental to persons residing or working in the vicinity, to adjacent property, the neighborhood or public welfare in general. ¶ 6 After the Board rejected a reconsideration motion, Pawn filed a special action in superior court challenging the Board’s variance decision. The superior court ruled in Jachimek’s favor, finding that Pawn lacked standing to challenge the Board’s decision. The court of appeals reversed, finding that Pawn had standing. Pawn 1st, LLC v. City of Phoenix, 231 Ariz. 309, 294 P.3d 147 (App. 2013) (Pawn I). On remand, the superior court ruled in Jachimek’s favor and dismissed Pawn’s complaint, finding that the variance was an area variance and not a use variance; that the Board’s decision to grant Jachimek’s area variance was not ultra vires because the Board is authorized to consider area variances; and that sufficient evidence supported the Board’s variance decision. ¶ 7 The court of appeals again reversed. Pawn 1st, LLC v. City of Phoenix, 239 Ariz. 539, 545 ¶ 28, 373 P.3d 556 (App. 2016) (Pawn II). It agreed with the superior court that Jachimek sought an area variance because a pawn shop is an allowed use within a C-3 zoning district, irrespective of the 500-foot distance requirement. Id. at 542 ¶ 11, 373 P.3d 556. But it disagreed that the Board acted within its authority and therefore remanded for entry of a judgment declaring the area variance invalid. Id. at 545 ¶ 28, 373 P.3d 556. ¶ 8 We granted review because the standards a municipal zoning boards of adjustment must apply when considering an application for a zoning variance present recurring issues of statewide importance. We have jurisdiction pursuant to article 6, section 5(3), of the Arizona Constitution and A.R.S. § 12-120.24. DISCUSSION ¶ 9 We review issues of statutory interpretation de novo, Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 387 ¶ 30, 296 P.3d 42, 50 (2013), and we presume the validity of the Board’s determination unless it is “against the weight of the evidence, unreasonable, erroneous, or illegal as a matter of law.” Mueller v. City of Phoenix ex rel Phoenix Bd. of Adjustment II, 102 Ariz. 575, 581, 435 P.2d 472, 478 (1967); see also AR.S. § 12-910(E) (“The court shall affirm the agency action unless ... the court concludes that the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion.”). I. Zoning Boards of Adjustment ¶ 10 Arizona law authorizes cities and towns to establish boards of adjustment by ordinance. A.R.S. § 9-462.06(A). The boards decide appeals from zoning administrators’ decisions concerning zoning ordinance enforcement. A.R.S. § 9-462.06(G)(l). Primarily, the boards determine whether “special circumstances” exist to relieve owners of property with unique characteristics from strict application of zoning laws. See A.R.S. § 9-462.06(0(2). ¶ 11 The boards’ authority to modify zoning decisions is statutorily limited. Boards of adjustment may not: (1) change the uses permitted in a zoning district; or (2) “[g]rant a variance if the special circumstances applicable to the property are self-imposed by the property owner.” A.R.S. § 9-462.06(H); cf. Arkules v. Bd. of Adjustment of Paradise Valley, 151 Ariz. 438, 440, 728 P.2d 657 (App. 1986) (holding that a board has “no powers except those granted by the statutes creating it,” and “its power is restricted to that granted by the zoning ordinance in accordance with the statute”). Consequently, a board’s grant of a variance in excess of its statutory authority is ultra vires and invalid as a matter of law. Arkules, 151 Ariz. at 440, 728 P.2d 657. II. The Phoenix Zoning Ordinance ¶ 12 Consistent with § 9-462.06, the Phoenix Zoning Ordinance authorizes a zoning administrator to issue a variance when “a literal enforcement of any provisions of the [Ordinance would result in unnecessary property hardship,” Ordinance § 307(A)(9). A variance, however, is authorized only if the applicant can establish that (a) special circumstances apply to the land, building, or use referenced in the application which do not apply to other district properties; (b) the owner did not create the special circumstances; (c) the variance is necessary for the “preservation and enjoyment of substantial property rights”; and (d) the variance will not be materially detrimental to the area. Ordinance § 307(9)(a)~(d). ¶ 13 If a zoning administrator denies a variance, an applicant may appeal to the Board, but the Board’s authority to modify a zoning decision is limited in that it may not (a) change the uses permitted in a zoning classification or district; or (b) grant a variance if the property owner self-imposes the special circumstances applicable to the property. Ordinance § 303(B)(2). III. Area and Use Variances ¶ 14 Arizona law distinguishes area variances from use variances. See Ivancovich v. City of Tucson Bd. of Adjustment, 22 Ariz.App. 530, 536, 529 P.2d 242 (1974) (noting that “the distinction between ‘area’ and ‘use’ variances, and the imposition of separate requirements for the granting of each type, are inventions of the court”). An area variance relieves the duty to comply with a zoning ordinance’s technical requirements, such as “setback line, frontage requirements, height limitations, lot size restrictions, density regulations and yard requirements,” while a use variance permits a use not expressly allowed by a zoning ordinance. Id. The Arizona Legislature prohibits boards of adjustment from changing the “uses permitted,” thus confining their authority only to area variances. See Cardon Oil Co. v. City of Phoenix, 122 Ariz. 102, 103 n.1, 593 P.2d 656, 657 n.1 (1979) (“[Section] 9-462.06(H)(l) now specifically prohibits a board of adjustment from changing any of the uses permitted in a zoning classification.”). ¶ 15 In Ivcmcovich, the court of appeals explained the different variance standards: an area variance requires a showing of “peculiar and exceptional practical difficulties,” while a use variance requires a showing of “exceptional and undue hardship.” 22 Ariz. App. at 538, 529 P.2d 242 (noting that “[t]he difference between exceptional and undue hardship and peculiar and exceptional practical difficulties is one of degree”). One reason for requiring a “less stringent” showing of encumbrance for an area variance than a use variance is because it does not affect the character of the community. Id. at 536, 529 P.2d 242. ¶16 A use variance, however, requires a more stringent showing that compliance with the zoning regulations precludes any reasonable use of the property. Id. at 538, 529 P.2d 242 (stating that “[i]t must be shown that the zoning ordinances preclude the use of the property in question for any purpose to which it is reasonably adapted”). A legislative body, rather than a zoning board, may authorize a use variance. AR.S. § 9-462.01(A)(l) (“[T]he legislative body of any municipality by ordinance may .,. [Reg-úlate the use of buildings, structures and land as between agriculture, residence, industry, business and other purposes.”); A.R.S. § 9-462.06(H)(l) (A board of adjust ment may not “[m]ake any changes in the uses permitted in any zoning classification or zoning district, or make any changes in the terms of the zoning ordinance....”); Ivancovich, 22 Ariz.App. at 535, 529 P.2d 242 (“The Board cannot amend or repeal any zoning ordinance for this power belongs to the City Council.”). “An inability to put the property to a more profitable use or loss of economic advantage is not sufficient to constitute undue hardship” justifying a use variance. Ivancovich, 22 Ariz.App. at 538, 529 P.2d 242. This “no reasonable use” standard is limited to use variances. Id. (holding that “[s]uch a showing need not be made in the case of area variances”). ¶ 17 The reasons for this distinction are sound. Two examples illustrate the point. Permitting an adult bookstore (a C-3 use) in a residential district would require a use variance—with its attendant higher “exceptional and undue hardship” standard—and the city legislative body’s approval through rezoning because it may fundamentally alter the neighborhood. On the other hand, a decision regarding the number of parking spaces for a use permitted in a particular district, such as a restaurant, would require an area variance because it would not produce the type of neighborhood-altering impact that requires legislative approval. ¶ 18 The area variance provisions protect property owners where strict application of the Ordinance would “deprive the property of privileges enjoyed by other property of the same classification in the same zoning district,” A.R.S. § 9-462.06(0(2), and “result in unnecessary property hardship.” Ordinance § 307(A)(9). They serve as a “safety valve against excessive regulation.” James A. Kushner, 2 Subdivision Law and Growth Mgmt. § 8:13 (2d ed. 2017). IV.Jachimek’s Variance ¶ 19 Here, we consider first whether Jachimek applied for an area or use variance, and second whether the Board acted within its discretion in granting the variance. The court of appeals held that Jachimek’s variance was an area variance because a pawn shop is a permitted use in a C-3 zoning district, irrespective of the 600-foot distance requirement. Pawn II, 239 Ariz. at 642 ¶ 12, 373 P.3d 556. We agree. ¶ 20 The distinction between area and use variances centers on the nature of the variance. A pawn shop is a permitted use in the zoning classification here: the Property is zoned as a C-3 commercial district; all C-2 commercial district uses are allowed in a C-3 district; and a pawn shop is a permitted use in a C-2 district, provided the exterior walls of the building are at least 500 feet from a residential district. Ordinance § 623(D)(132)(b). Contrary to Pawn’s argument, the 500-foot requirement is akin to a setback or frontage requirement, not a use regulation; it is a technical requirement of an established commercial area. A variance allowing a pawn shop in an existing commercial district does not fundamentally alter the nature of the area. The Board granted Jachi-mek an area variance, not a use variance, and it did not exceed its authority under A.R.S. § 9-462.06(H)(l). V. Special Circumstances ¶ 21 Boards of adjustment may grant area variances only if, due to special circumstances, “the strict application of the zoning ordinance will deprive the property of privileges enjoyed by other property of the same classification in the same zoning district.” A.R.S. § 9—462.06(G)(2). “The term ‘special circumstances’ as used in the zoning ordinance is the functional equivalent of the word ‘hardship.’ ” Burns v. SPA Auto., Ltd., 166 Ariz. 503, 606, 763 P.2d 193 (App. 1988). ¶22 We agree with the Board, superior court, and court of appeals that special circumstances apply to the Property. The Board reasoned, after comparing the Property to twelve surrounding C-3-zoned corner parcels, that prior eminent domain activities rendered the Property “dissimilar to other properties in a reasonably close radius.” The Board explained that the special circumstances arose from the Property’s physical characteristics. The record supports the Board’s findings that the lot size, the building’s limited setback from the public sidewalk, and the parking restrictions constitute special circumstances justifying an area variance, because the Property’s unique characteristics create exceptional practical difficulties. Accordingly, the Board acted within its discretion in finding sufficient special circumstances unique to the Property to justify Jachimek’s variance. VI. Prohibition against Self-Imposition ¶ 23 A finding of special circumstances does not justify a variance, however, if the circumstances are self-imposed by the property owner. A.R.S. § 9-462.06(H)(2); Ordinance §§ 303(B)(2)(b), 307(A)(9)(a)-(b), - (10)(b). A board of adjustment exceeds its statutory jurisdiction and authority, and its decision is “ultra vires and void,” if it grants a variance in violation of the prohibition against self-imposition. See Arkules, 151 Ariz. at 440, 728 P.2d 657. ¶ 24 In this case, although it acknowledged that special circumstances impacted the Property, the court of appeals held that any special circumstances “were created by Ja-ehimek and/or the Property owner by selecting this particular property to use as a pawn shop, in violation of the prohibition against self-imposition,” and, consequently, “the Board's decision to grant Jachimek a variance was ‘ultra vires and void.’ ” Pawn II, 239 Ariz. at 545 ¶ 27, 373 P.3d 556. We disagree. ¶ 25 The court of appeals relied on three Arizona cases in concluding Jachimek created the Property’s special circumstances: Arkules, Burns, and Rivera v. City of Phoenix, 186 Ariz. 600, 925 P.2d 741 (App. 1996). These eases are factually distinguishable. ¶ 26 In Arkules, neighbors challenged a variance allowing a homeowner to paint his house a color inconsistent with a zoning regulation requiring it to “blend [in] with the mountain background.” 151 Ariz. at 439, 728 P.2d 657. The court of appeals ruled in the neighbors’ favor because, under zoning law, “[t]he color of a house is not a factor pertaining to the real property or which would deprive the property of uses or privileges enjoyed by other property of the same zoning classification.” Id. at 441, 728 P.2d 657. The owner’s house color preference did not constitute a cognizable hardship because the statutory provisions and zoning ordinance “specifically state that any hardship must relate to the use of the land as opposed to the owner” and, therefore, “[a] personal hardship does not justify a variance.” Id. at 442, 728 P.2d 657. ¶ 27 Similarly, in Bums, a car dealership owner created his own zoning hardship by contracting with three car manufacturers that required him to display the manufacturers’ logos on a larger sign than the city’s zoning rales allowed. 156 Ariz. at 504, 753 P.2d 193. The superior court reversed the board of adjustment’s decision allowing a variance to display a non-compliant sign. Id. The court of appeals upheld the superior court, reasoning that the special circumstances “were self-inflicted by [the owner’s] decision to be a three-car dealership,” and that special circumstances may be considered only if they arise out of “circumstances or conditions beyond the control of the party involved.” Id. at 505, 753 P.2d 193. Unlike Jachimek’s decision to operate a pawn shop, a use denied to him but permitted to other similarly situated property owners in the same zoning district, the owner in Bums sought relief from signage restrictions applied uniformly to comparable properties. ¶ 28 In Rivera, a homeowner obtained a building permit to expand his residence. 186 Ariz. at 602, 925 P.2d 741. Following inspection of the completed work, the city discovered that the improvements exceeded a zoning limitation on the square footage of residential improvements, Id. The Board ordered the homeowner to demolish the non-compliant portion of his residence and he sought a variance. Id. The court of appeals affirmed the Board’s denial of the variance, reasoning that the homeowner created the special circumstances because he provided the city with an erroneous site plan. Id. at 603, 925 P.2d 741. ¶ 29 Arkules, Burns, and Rivera are distinguishable because in each case the owner created the special circumstances; they did not arise from applying the zoning ordinance to circumstances or conditions beyond the owners’ control. In contrast, here the special circumstances arose from factors beyond Ja-chimek’s control. The City’s eminent domain action, not Jachimek’s intended use, altered the Property’s dimensions and created the special circumstances, including the Property’s comparatively small lot size, absence of frontage area around the building, direct abutment of a public sidewalk, and onerous parking restrictions. These characteristics and the strict application of the zoning regulations uniquely diminish the Property’s commercial viability as compared to “other property of the same classification in the same zoning district,” A.R.S. § 9—462.06(G)(2), and have nothing to do with Jachimek’s personal preference. ¶ 30 We are also unpersuaded by the court of appeals’ reliance on Minney v. City of Azusa, 164 Cal.App.2d 12, 330 P.2d 255 (1958), for the proposition that “[o]ne who purchases property in anticipation of procuring a variance to enable him to use it for a purpose forbidden at the time of sale cannot complain of hardship ensuing from a denial of the desired variance.” Pawn II, 239 Ariz. at 546 ¶ 26, 373 P.3d 556. In Minmy, the California Court of Appeals upheld the denial of a variance where an owner purchased a lot in a residential zone and sought to construct a church. 330 P.2d at 257. Because Minmy involved a use variance, it is inapposite. See Arden H. Rathkopf et al., 3 Rathkopfs The Law of Zoning and Planning § 58.22 (4th ed. 2017) (noting that classification of prior knowledge of special circumstances as a self-imposed hardship arose in the context of use variances). Unlike Minmy’s use variance, Ja-chimek’s proposed use was permissible and the area variance would not alter the character of the neighborhood. ¶ 31 Arizona zoning statutes and local ordinances require boards of adjustment to consider special circumstances applicable to the property, not the property owner. See, e.g., Burns, 156 Ariz. at 504, 753 P.2d 193 (explaining that a variance “is a legal status granted to a certain parcel of realty without regard to ownership,” and “[personal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance” (citation omitted)); Julian Conrad Juergensmeyer et al, Land Use Planning and Development Regulation Law § 5.17 (3d ed. 2017) (“Most courts consider the transfer of title irrelevant ... [because] the zoning, not the person, creates the hardship.”). Thus, in the context of area variances, we consider whether strictly applying the zoning requirements would deprive an owner of the same privileges owners of other similarly zoned property enjoy. Special circumstances are not “self-imposed” when the owner wants to use the property in a way permitted to other similarly situated properties, but cannot do so because of externally imposed circumstances like those involved here. Although it is fair to say that Jaehimek voluntarily acquired the Property subject to the special circumstances, he certainly did not create them. ¶ 32 The court of appeals’ rule would impose an undue restraint on alienation, as anyone purchasing a property with knowledge of the restriction would have no ability to obtain an area variance. This approach would give purchasers fewer property rights than sellers and, thus, would contravene our case law and longstanding legal tradition in favor of alienation. See, e.g., Tovrea v. Umphress, 27 Ariz.App. 513, 517, 556 P.2d 814 (1976) (noting that “[r]estraints on alienation are generally disfavored”); see also Lamb v. Zoning Bd. of Appeals of Taunton, 76 Mass.App.Ct. 513, 923 N.E.2d 1078, 1081 (2010) (citing Arden H. Rathkopf et al., 3 Rath-kopfs The Law of Zoning and Planning § 58.22 at 141-148 (1991), stating “because a purchaser of property acquires no greater right to a variance than his predecessor, he should not be held to acquire less” and finding that “[t]o hold otherwise would discourage the free alienability of real property and the efficient use of land” (citations omitted)). Accordingly, we reject the court of appeals’ rule and hold that an applicant or owner’s selection of a property, even with knowledge that an area variance is required for an intended use allowed on other similarly zoned properties, does not itself constitute a self-imposed special circumstance precluding an area variance. CONCLUSION ¶ 33 The Board acted within its discretion in finding that special circumstances applied to the Property; that the variance required was an area variance; that Jaehimek did not create the special circumstances; that the variance was necessary for the preservation and enjoyment of substantial property rights; and that the variance would not be materially detrimental to the surrounding area. Accordingly, we vacate the court of appeals’ opinion and affirm the superior court’s judgment upholding the Board’s variance and granting summary judgment in Jachimek’s favor. We deny Pawn’s request for attorney fees because it is not the prevailing party.

OPINION WINTHROP, Judge: ¶ 1 Arizona Electric Power Cooperative, Inc. (“AEPCO”) appeals the tax court’s summary judgment in favor of the Arizona Department of Revenue (“the Department”). Because AEPCO’s purchases of coal and natural gas are subject to use tax, we affirm the judgment of the tax court. FACTUAL AND PROCEDURAL BACKGROUND ¶ 2 AEPCO, a non-profit Arizona cooperative corporation, owns and operates the Apache Generating Station, an electric generation facility in Cochise County. AEPCO sells most of the electricity it produces to cooperative members, and sells the remainder to the general electricity market. ¶3 To generate electricity, AEPCO uses coal and natural gas, most of which AEPCO purchases from out-of-state suppliers, who are not subject to Arizona’s transaction privilege tax. AEPCO originally paid use tax on those purchases, but later filed two refund claims with the Department, requesting a refund of use tax paid between 2003 and 2010. The Department denied both claims. After an unsuccessful protest before the Office of Administrative Hearings, AEPCO appealed the Department’s final order to the tax court pursuant to Arizona Revised Statutes (“A.R.S.”) section 42-1254(0) (2013). ¶ 4 In the tax court, the parties filed cross-motions for summary judgment. The tax court granted the Department’s motion and denied AEPCO’s cross-motion, determining that AEPCO’s purchases of coal and natural gas were subject to use tax. After entry of final judgment in favor of the Department, AEPCO timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.04(G) (2016), -120.21(A)(1) (2016), and -170(C) (2016). STANDARD OF REVIEW ¶ 6 This court reviews de no,vo the tax court’s grant of summary judgment and its interpretation of relevant statutes. See CCI Europe, Inc. v. Ariz. Dep’t of Revenue, 237 Ariz. 50, 52, ¶ 7, 344 P.3d 352, 354 (App. 2015). Although we liberally construe statutes imposing taxes in favor of taxpayers, we strictly construe tax exemptions, given the general policy that all taxpayers should share the common burden of taxation. State ex rel. Ariz. Dep’t of Revenue v. Capitol Castings, Inc., 207 Ariz. 445, 447, ¶ 10, 88 P.3d 159, 161 (2004). We apply these standards to determine whether AEPCO’s purchases of coal and natural gas from out-of-state vendors are subject to Arizona’s use tax. ANALYSIS I. AEPCO’s Purchases of Coal and Natural Gas Are Within the Scope ofA.R.S. § Í2-5155 ¶ 6 AEPCO first argues that its purchases of coal and natural gas fall “outside the scope of the Arizona use tax as nontaxable purchases for resale.” ¶ 7 Arizona law imposes a use tax “on the storage, use or consumption in this state of tangible personal property purchased from a retailer or utility business,” A.R.S. § 42-5155(A) (Supp. 2015). “Tangible personal property” is defined as “personal property which may be seen, weighed, measured, felt or touched or is in any other manner perceptible to the senses.” A.R.S. § 42-5001(17) (Supp. 2015). In contrast to the transaction privilege tax, which is imposed on transactions consummated within Arizona, a use tax is designed to reach out-of-state sales of tangible personal property to Arizona purchasers. Qwest Dex, Inc. v. Ariz. Dep’t of Revenue, 210 Ariz. 223, 225, ¶ 12, 109 P.3d 118, 120 (App. 2005) (citing People of Faith Inc. v. Ariz. Dep’t of Revenue, 161 Ariz. 514, 519, 779 P.2d 829, 834 (Tax Ct. 1989); Nathaniel T. Trelease & Andrew W. Swain, The Law’s Long Arm: The Taxation of Electronic Commerce, Ariz. Att’y, June 2002, at 20). The use tax statutes create a presumption that property purchased out-of-state and brought into Atizona is intended for storage, use, or consumption within the state, see A.R.S. § 42-5152 (2013), and the taxpayer has the burden of rebutting that presumption. ¶ 8 The Arizona Legislature has defined the tern “use or consumption” as “the exercise of any right or power over tangible personal property incidental to owning the property except holding for sale or selling the property in the regular course of business.” AR.S. § 42-5151(22) (Supp. 2015) (emphasis added). Pursuant to § 42-5151(22), tangible personal property purchased for resale is not subject to use tax. See Motorola, Inc. v. Ariz. Dep’t of Revenue, 196 Ariz. 137, 138, ¶ 4, 993 P.2d 1101, 1102 (App. 1999) (“The tax does not extend to items for sale.”). ¶ 9 Applying this definition, AEPCO argues that its purchases of coal and natural gas are for resale and, therefore, fall outside the scope of the use tax, In support of its position, AEPCO offered expert testimony, which explained as follows: Electric generation facilities do not produce, create or make electricity out of nothing. Electric generation facilities purchase coal and natural gas for the chemical energy that is in the coal and natural gas. Electric generation facilities convert the chemical energy in the coal and natural gas into electrical energy (electricity) for resale. The Department’s expert disagreed, contending that “[h]eat engines in a power plant (gas turbines and/or steam turbines) consume fuel (natural gas or coal) by combusting that fuel with air,” ¶ 10 The parties’ experts agreed that the generation of electricity involves a multi-step process that begins with the combustion of fuel. In gas turbines, the combustion produces an exhaust stream that rotates a power turbine, which in turn causes the generator to rotate. In steam turbines, the combustion produces steam that rotates a steam turbine, which in turn causes the generator to rotate. The experts also agreed that “[i]n both cases the rotating generators transform mechanical energy into electromagnetic energy, then into electrical energy, which finally drives the flow of electric charge (i.e. electric current, electricity).” ¶ 11 Because the language of § 42-5155 is plain and unambiguous, we “apply the language used.” City of Mesa v. Killingsworth, 96 Ariz. 290, 294, 394 P.2d 410, 412 (1964). Pursuant to § 42-5155, any pei’son storing, using, or consuming tangible personal property purchased out-of-state is liable for use tax. See A.R.S. § 42-5155(E); Qwest Dex, 210 Ariz. at 225, ¶ 12, 109 P.3d at 120. AEPCO clearly uses and consumes coal and natural gas to generate electricity. Accordingly, because the fuel is purchased from out-of-state vendors, AEPCO is liable for Arizona use tax. See Qwest Dex, 210 Ariz. at 225-26, ¶ 12, 109 P.3d at 120-21. ¶ 12 AEPCO has failed to rebut the statutory presumption or otherwise demonstrate that its fuel purchases fall outside the scope of the tax. See A.R.S. § 42-5152. AEPCO’s expert’s testimony does not adequately explain how AEPCO “holds” coal and natural gas for sale or for selling in the regular course of business. See A.R.S. § 42-5151(22). To the contrary, the evidence reflects that AEPCO uses and consumes the fuel in the process of generating electricity. See Farrand Coal Co. v. Halpin, 10 Ill.2d 507, 140 N.E.2d 698, 701 (1957) (explaining that “[i]t is difficult to perceive how there could be a more complete use or consumption of the coal” than by burning or combustion). AEP-CO’s expert admitted that, at the end of the electric generation process, the coal and natural gas no longer have the same “chemical composition” they had at the beginning of the process. He also agreed that no part of the mass of coal or natural gas becomes part of the electricity. Rather, the fuels are combusted at the beginning of the generation process. ¶ 13 Accordingly, we conclude that AEP-CO’s out-of-state purchases of coal and natural gas are subject to Atizona use tax. II. AEPCO’s Purchases of Coal and Natural Gas Are Not Exempt Under A.R.S. § 5159 ¶ 14 Alternatively, AEPCO argues that its purchases of coal and natural gas are exempt from use tax pursuant to AR.S. § 42-5159(A)(4) (Supp. 2015), which exempts from use tax all “[tangible personal property that directly enters into and becomes an ingredient or component part of any manufactured, fabricated or processed article, substance or commodity for sale in the regular course of business.” (Emphasis added.) Applying § 42-5159(A)(4), AEPCO argues that “the coal and natural gas, or a part thereof, ... directly enters into and becomes an ingredient or component part of the electricity generated by AEPCO.” ¶ 15 Under the Department’s use tax regulations, “[t]he sale of fuel used or consumed in a manufacturing process is taxable,” and “[t]he fuel is not considered to be incorporated into the manufactured product.” Ariz. Admin. Code R15-5-121; see also Harris Corp. v. Ariz. Dep’t of Revenue, 233 Ariz. 377, 383, ¶ 21, 312 P.3d 1143, 1149 (App. 2013) (recognizing that, “[although not binding, the Department’s regulations are entitled to considerable weight”). The same reasoning that applies to fuels consumed in manufacturing also applies to fuels consumed in electric generation. At AEPCO’s plant, the coal and natural gas are combusted to rotate the gas or steam turbines. The fuels are consumed in the process of generating electricity. They do not directly enter into or become an ingredient or component part of the electricity as required by § 42-5159(A)(4). ¶ 16 Our conclusion is consistent with a decision by the California Court of Appeal in Searles Valley Minerals Operations, Inc. v. State Board of Equalization, 160 Cal.App.4th 514, 72 Cal.Rptr.3d 857 (2008). In Searles, the court held that coal purchased out-of-state and used in California to generate electricity was subject to use tax. 72 Cal.Rptr.3d at 866. The court reasoned that “the uncon-troverted evidence at trial establishes that the coal’s physical mass is combusted, and thus destroyed, in creating the heat necessary to make the steam and that no component of that mass becomes part of the electricity that the Taxpayers generate.” Id. at 865. The court also concluded that “none of the coal’s physical mass ends up as a component of the electricity.” Id. The same is true here. ¶ 17 Moreover, as the Department points out, § 42-5159 reflects the Arizona Legislature’s willingness to expressly exempt fuels from taxation in specific situations. See, e.g., A.R.S. § 42-5159(A)(31) (exempting coal and natural gas “directly used or consumed in the generation or provision of on-site power or energy solely for environmental technology manufacturing, producing or processing or environmental protection”); -(42) (exempting alternative fuels purchased by a used oil fuel burner); -(45) (exempting gas used or consumed for the sole purpose of fueling compressor equipment that pressurizes a pipeline). “The provision of one exemption in a statute implicitly denies the existence of other unstated exemptions.” State Comp. Fund v. Superior Court (EnerGCorp, Inc.), 190 Ariz. 371, 375-76, 948 P.2d 499, 503-04 (App. 1997) (citing Estate of Tovrea v. Nolan, 173 Ariz. 568, 573, 845 P.2d 494, 499 (App. 1992); State v. Roscoe, 186 Ariz. 68, 72, 912 P.2d 1297, 1301 (1996)). ¶ 18 Accordingly, we determine that AEP-CO’s purchases of coal and natural gas are not exempt from use tax under § 42-5159(A)(4). CONCLUSION ¶ 19 For the foregoing reasons, we affirm the judgment of the tax court, holding that AEPCO’s purchases of coal and natural gas from out-of-state vendors are subject to use tax. We award the Department its costs on appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21. . The first claim sought a refund of $4,199,440.88 for tax paid between August 2003 and July 2007. The second claim sought a refund of $3,089,540.09 for tax paid between June 2007 and June 2010. . We cite the current version of all statutes because no revisions material to this decision have occurred since the applicable time period. . AEPCO's plant consists of four gas-fired combustion turbines, one gas-fired steam boiler elec-trie generator, and two coal/gas-fired steam electric power generators. . The use tax statutes of Arizona and California are similar. Compare A.R.S. § 42-5155(A) (imposing a tax "on the storage, use or consumption in this state of tangible personal property purchased from a retailer”), and A.R.S. § 42-5151(22) (defining the term “use or consumption"), with Cal. Rev. & Tax, Code § 6201 (imposing a tax "on the storage, use, or other consumption in this state of tangible personal property purchased from any retailer”), and Cal. Rev. & Tax. Code § 6009 (defining the word “use”).

OPINION THUMMA, Judge: ¶ 1 The Arizona Cannabis Nurses Association (AZCNA) filed a petition with the Arizona Department of Health Services (DHS) to add Post>-Traumatic Stress Disorder (PTSD) to the list of debilitating medical conditions under the Arizona Medical Marijuana Act (AMMA). See Ariz. Rev. Stat. (A.R.S.) §§ 36-2801 through -2819 (2017). DHS granted the petition, subject to certain conditions. After unsuccessfully challenging those conditions in superior court, AZCNA now appeals to this court. Because AZCNA has shown no error, the decision is affirmed. FACTS AND PROCEDURAL HISTORY ¶ 2 Approved as a voter initiative in November 2010, see State v. Okun, 231 Ariz. 462, 464 ¶ 4, 296 P.3d 998 (App. 2013), the AMMA’s “ ‘purpose ... is to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties and property forfeiture if such patients engage in the medical use of marijuana,’” State v. Gear, 239 Ariz. 343, 345 ¶ 11, 372 P.3d 287 (2016) (citation omitted). The AMMA allows the regulated use of “marijuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with” such a condition. A.R.S. § 36-2801(9). Under the AMMA, “debilitating medical condition” means either (1) specifically enumerated medical conditions or diseases or them treatment, A.R.S. § 36-2801(3)(a), or (2) chronic or debilitating diseases or medical conditions or them treatment that produce “one or more” specified symptoms, A.R.S. § 36—2801(3)(b). The AMMA has a process for DHS to add “[a]ny other medical condition or its treatment” as a debilitating medical condition. A.R.S. § 36-2801(3)(c), ¶ 3 “The public may petition” DHS “to add debilitating medical conditions or treatments to the list of debilitating medical conditions.” A.R.S, § 36-2801.01. DHS is required to “approve or deny [such] a petition within one-hundred-eighty days of its submission,” and such action is a final DHS decision subject to judicial review. AR.S. § 36-2801.01; see also Ariz. Admin. Code (A.A.C.) R9-17-106. ¶ 4 In mid-2013, AZCNA filed a petition with DHS to add PTSD as a debilitating medical condition. The petition contained required information, including “the availability of conventional medical treatments” for PTSD and “[a] summary of the evidence that the use of marijuana will provide therapeutic [meaning healing] or palliative [meaning symptom relief] benefit” for PTSD. A.A.C. R9-17-106(A)(5 & 6); see also Carbajal v. Indus. Comm’n of Ariz., 223 Ariz. 1, 4 ¶ 16 n.2, 219 P.3d 211 (2009) (noting palliative use manages “symptoms or mitigat[es] the effects” of illness or injury). After a public hearing and receiving public comments, DHS denied the petition. ¶ 5 AZCNA challenged that denial administratively. That challenge was assigned to an Administrative Law Judge (ALJ), designated by the Office of Administrative Hearings, to receive evidence and prepare a recommended decision for DHS to consider. See A.R.S. §§ 41-1092.08(A) & (B). The ALJ presided over a several-day evidentiary hearing, where AZCNA presented evidence largely addressing whether marijuana use was palliative but not whether it was therapeutic. The ALJ’s June 2014 recommended decision found that “[t]he preponderance of the evidence shows that marijuana use provides a palliative benefit to those suffering from PTSD.” The ALJ recommended that PTSD be added as a debilitating medical condition. ¶ 6 DHS’ July 2014 final decision adopted the ALJ’s recommended decision as amended. DHS granted AZCNA’s petition, adding PTSD “to the list of debilitating [medical] conditions for which marijuana may be dispensed” under the AMMA. DHS conditioned such use, however, by requiring that a physician’s written certification “for the medical use of marijuana for” PTSD (1) “be specifically limited to palliative, non-therapeutic use” and (2) “include an attestation that the patient is participating in conventional treatment for” PTSD (collectively, the Conditions). The Conditions are the focus of this appeal. ¶ 7 AZCNA appealed to the superior court, arguing DHS lacked the authority to require the Conditions and that they violated the constitutional rights of individuals with PTSD. After briefing and oral argument, the court rejected AZCNA’s arguments and affirmed DHS’ final decision. This court has jurisdiction over AZCNA’s timely appeal of the superior court’s decision pursuant to A.R.S. §§ 12-913, -2101(A)(1) and - 120.21(A)(1). DISCUSSION I. AZCNA Has Shown No Error. A. Standard Of Review. ¶ 8 AZCNA argues the Conditions imposed by DHS violated: (1) Arizona’s Voter Protection Act, Article 4, Section 1, of the Arizona Constitution (VPA) and AR.S. § 36-114; (2) DHS’ statutory authority and (3) PTSD patients’ equal protection rights. This court is asked to address whether DHS’ final decision was “illegal, arbitrary, capricious or involved an abuse of discretion.” Eaton v. AHCCCS, 206 Ariz. 430,432 ¶ 7, 79 P.3d 1044 (App. 2003). “An agency decision is not arbitrary and capricious if it is supported by substantial evidence.” WildEarth Guardians, Inc. v. Hickman, 233 Ariz. 60, 53 ¶ 7, 308 P.3d 1201 (App. 2013). This court will not reweigh the evidence, St. Joseph’s Hosp. v. AHCCCS, 185 Ariz. 309, 312, 916 P.2d 499 (App. 1996), and reviews questions of law de novo, Webb v. State ex. rel. Arizona Bd. of Medical Examiners, 202 Ariz. 565, 557 ¶ 7, 48 P.3d 605 (App. 2002). Although this court determines whether DHS has properly interpreted the relevant law, DHS’ interpretation of applicable statutes and regulations “‘is entitled to great weight.’ ” Scottsdale Healthcare Inc. v. AHCCCS, 206 Ariz. 1, 8 ¶ 27, 75 P.3d 91 (2003) (citation omitted); accord Ariz. Water Co. v. Ariz. Dep’t Water Resources, 208 Ariz. 147, 154 ¶ 30, 91 P.3d 990 (2004) (noting, where Legislature “has not spoken” on issue, “ ‘considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.’ In such cases, ‘a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.’ ”) (citations omitted). With these standards in mind, the court addresses AZCNA’s arguments in turn. B. AZCNA Is Not Aggrieved By The “Palliative, Non-Therapeutic Use” Condition. ¶ 9 AZCNA argues DHS lacked authority “to distinguish between a therapeutic or palliative benefit” of medical marijuana, meaning the condition that a physician’s written certification “be specifically limited to palliative, non-therapeutic use” is invalid. AZCNA’s pre-hearing brief filed with the ALJ admitted that no significant evidence showed that marijuana use is therapeutic for PTSD, arguing instead that evidence showed that marijuana use provides palliative benefits for PTSD. Consistent with AZCNA’s position and the evidence received, the ALJ’s proposed decision found “[t]he preponderance of the evidence shows that marijuana use provides a palliative benefit to those suffering from PTSD,” not that such use provided a therapeutic benefit. And DHS construed AZCNA’s petition as a request to “add palliative treatment of [PTSD] as a debilitating medical condition” under the AMMA. Consistent with this view, even while challenging the limitation on appeal, AZCNA concedes that “[t]here is no cure” of any kind for PTSD. ¶ 10 AZCNA has not shown that DHS construed its petition erroneously or that the evidence received could support a finding that marijuana use properly could be deemed therapeutic for PTSD. AZCNA asked DHS to add PTSD to the list of debilitating medical conditions, claiming marijuana use has a palliative effect for PTSD. DHS granted that request. Thus, AZCNA has not shown how it was aggrieved by the “palliative, non-therapeutic” condition. See, e.g., Kondaur Capital Corp. v. Pinal County, 235 Ariz. 189, 192 ¶ 6, 330 P.3d 379 (App. 2014) (“an appellant is only entitled to appeal from “‘that part of the judgment by which [it] is aggrieved” ’ ”) (citation omitted); Chambers v. United Farm Workers Org. Comm., AFL-CIO, 25 Ariz. App. 104, 107, 541 P.2d 567 (1975) (“[a] court’s ruling which is favorable to a party may not be appealed by that party”). C. The Conditions Do Not Violate The VPA Or A.R.S. § 36-114. ¶ 11 AZCNA baldly argues that requiring a physician’s written certification to include an “attestation that the patient is participating in conventional treatment for” PTSD constitutes an attempt by DHS “to modify a statutory provision” in violation of the VPA This argument is unavailing. The VPA limits the power of the Governor and the Legislature to amend or veto initiatives approved by Arizona voters. See Ariz. Const, art. 4, § 1. Although AZCNA asserts DHS is attempting to “change the requirements imposed by a statute,” it has done no such thing. The AMMA does not prohibit DHS from imposing restrictions or conditions on the use of medical marijuana for the treatment of a medical condition added to the list of debilitating medical conditions. See A.R.S. § 36-2801(3)(c). AZCNA has not shown the Conditions violate the VP A. ¶ 12 AZCNA similarly argues that the conventional treatment condition violates the prohibition against DHS “impos[ing] on any person against his will any mode of treatment.” A.R.S. § 36-114. AZCNA argues that imposing a condition requiring traditional treatment as a prerequisite is the same as requiring treatment against a person’s will. AZCNA, however, provides no authority supporting this proposition. Nor has AZCNA shown how its reliance on Anderson v. State, 135 Ariz. 578, 663 P.2d 570 (App. 1982)— which it admits addressed “a ‘forced treatment’ situation where an attempt is made to force the patient to submit to psychotropics in a non-emergency, voluntary committal, situation”—supports its argument. DHS is not forcing any person to undergo any sort of medical treatment. Accordingly, AR.S. § 36-114 is not implicated. Moreover, AZCNA’s argument that the conventional treatment condition requires a veteran to seek such treatment through the United States Veterans Administration is not supported by the record. And AZCNA has not shown that DHS’ actions were contrary to its statutory mandate to “[p]rotect the health of the people of the state.” A.R.S. § 36-132(A)(1). On this record, AZCNA has not shown the Conditions violate A.R.S. § 36-114. D. DHS Had The Authority To Impose The Conditions. ¶ 13 The core of AZCNA’s appeal is an argument that “[n]either the statute nor the rule anywhere provide” DHS the authority to require the Conditions, regardless of the underlying facts. The premise of this argument is that DHS could not grant AZC-NA’s petition subject to any condition whatsoever but, instead, could only approve or deny the petition as submitted. The statutory authority relied upon by AZCNA for this proposition states that DHS “shall consider petitions in the manner required by department rule, including public notice and hearing. [DHS] shall approve or deny a petition within one-hundred-eighty days of its submission.” AR.S. § 36-2801.01. This, AZCNA argues, means DHS could not grant a petition subject to any condition of any type. ¶ 14 Contrary to AZCNA’s argument, the focus of A.R.S. § 36-2801.01 is a requirement that DHS act on a petition within 180 days of its filing, not the form that DHS’ action should take. This focus is furthered by the related statutory directive that “[t]he approval or denial of a petition is a final decision of’ DHS subject to judicial review. AR.S. § 36-2801.01. Indeed, AZCNA cites no authority supporting its view that A.R.S, § 36-2801.01 directs DHS to grant or deny a petition, but do nothing else. Arizona law on agency action is to the contrary. ¶ 15 The Legislature is not required to expressly set forth all authority granted to an agency. Longbridge Inv. Co. v. Moore, 23 Ariz.App. 353, 356, 633 P.2d 664 (1975). “[I]t is the law of this state that an agency may” take such action “which may be reasonably implied from ‘a consideration of the statutory scheme as a whole.’ ” Id. (citation omitted); see also Hospital Corp. of Northwest, Inc. v. Ariz. Dept. of Health Services, 195 Ariz. 383, 386 ¶ 13, 988 P.2d 168 (App. 1999) (rejecting argument DHS lacked regulatory authority over paramedics in hospital setting because no statute expressly authorized such authority; “[i]f the [Legislature had intended to provide DHS only limited authority, it could easily have done so”). If a statute is silent on a specific issue, “[t]he relevant inquiry is whether the agency’s interpretation is reasonable.... ‘Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency.”’ Kobold v. Aetna Life Ins. Co, 239 Ariz. 259, 262 ¶ 9, 370 P.3d 128 (App. 2016) (quoting City of Arlington, Tex. v. F.C.C., 669 U.S. 290, 133 S.Ct. 1863, 1867-68, 185 L.Ed.2d 941 (2013)). ¶ 16 AZCNA has not shown that DHS lacked the authority to consider the unique risks and potential benefits surrounding the use of medical marijuana to treat PTSD as a debilitating medical condition. This court “will indulge all rational presumptions in favor of the validity of the administrative action” and will “not invalidate such action unless its provisions cannot, by any reasonable construction, be interpreted in harmony with the legislative mandate.” Watahomigie v. Ariz. Bd. of Water Quality Appeals, 181 Ariz. 20, 25, 887 P.2d 550 (App. 1994). AZCNA failed to show the Conditions DHS imposed are not based on substantial evidence or not reasonable and adequately related to the AMMA’s purpose. See Grove v. Ariz. Criminal Intelligence Sys. Agency, 143 Ariz. 166, 169, 692 P.2d 1015 (App. 1984) (agency action must be reasonable and adequately related to purpose of applicable statute). This is particularly so given the relief sought in AZCNA’s petition and the record presented. II. The Conditions Do Not Violate The Equal Protection Rights Of Individuals With PTSD. ¶ 17 AZCNA argues the Conditions violate the equal protection rights of individuals with PTSD by “transparently discriminating] against a PTSD patient versus any other patient suffering from another listed debilitating condition.” In pressing this argument, AZCNA “bears the burden of overcoming” the “strong presumption supporting the constitutionality of ... an administrative regulation.” Watahomigie, 181 Ariz. at 27, 887 P.2d 550. Moreover, equal protection is not violated “if all persons within a class are treated alike.” Id. ¶ 18 The Conditions treat all individuals with PTSD similarly, AZCNA has not shown how requiring different treatments for different medical conditions is an equal protection violation. Nor has AZCNA shown that all individuals with PTSD have a right to use medical marijuana without DHS’ regulation of such use. See, e.g., Carnohan v. United States, 616 F.2d 1120, 1122 (9th Cir. 1980) (“Constitutional rights of privacy and personal liberty do not give individuals the right to obtain [medication] free of the lawful exercise of government police power.”). On this record, AZCNA has not shown the Conditions violate PTSD patients’ equal protection rights. CONCLUSION ¶ 19 The decision is affirmed. Because AZCNA is not the prevailing party, its request for attorneys’ fees and costs on appeal pursuant to AR..S. § 12-348(A)(2) is denied. , Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. . Although AZCNA challenges the January 1, 2015 implementation date of DHS' final decision, because that date passed long ago, the argument is moot. See Hormel v. Maricopa County, 224 Ariz. 454, 460 ¶ 25, 232 P.3d 768 (App. 2010). . Notwithstanding its reference to “the supreme court,” A.R.S. § 12-913 "has been construed as also allowing an appeal to the court of appeals, which was created after § 12-913 was enacted.” Svendsen v. Ariz. Dept. of Transp., Motor Vehicle Div., 234 Ariz. 528, 533 ¶ 13, 323 P.3d 1179 (App. 2014). . For various factual propositions, AZCNA’s opening brief improperly and extensively relies on a March 2015 brief in an unrelated case filed nearly a year after DHS' final decision. See Lovitch v. Indus. Comm’n of Ariz., 202 Ariz. 102, 105 ¶ 15, 41 P.3d 640 (App. 2002) ("[tills court] cannot consider evidence not presented to the ALJ"). AZCNA’s opening brief also lists legal issues without supporting authority, which this court will not address. See Watahomigie v. Ariz. Bd. of Water Quality Appeals, 181 Ariz. 20, 26, 887 P.2d 550 (App. 1994). Finally, AZCNA has not provided a transcript from the evidentiary hearing before the ALJ, meaning this court presumes the testimony supports DHS’ final decision. See, e.g., Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 102 ¶ 21, 158 P.3d 225 (App. 2007); Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764 (App. 1995). . Referring to prescription drugs, AZCNA asserted in oral argument before this court that conventional treatments were dangerous and even deadly. However, DHS’ September 2014 Substantive Policy Statement makes it clear that conventional treatment does not require prescription drugs and could, depending on the individual, consist solely of counseling, participation in support groups or prescription medication. . AZCNA argues "the same rationale” used by a New Mexico state trial court in an unpublished decision should apply here. See Kieve v. New Mexico Dep't of Health, D 101-CV-2014-00140 (N.M. 1st Dist. Ct. Apr. 29, 2015), https://www. scribd.com/doc/263778533/MedicalMarijuana Ruling-pdf#fullscreen&from_embed. Even if properly citable, Kieve is not precedential. See Ariz. R. Sup. Ct. 111(c)(1)(C). Nor is it persuasive, particularly because New Mexico required PTSD patients to exhaust all standard treatments before being able to use medical marijuana, Kieve at 21, which DHS' final decision clearly does not require.

OPINION ECKERSTROM, Chief Judge: ¶ 1 Following a jury trial, appellant Terry James was convicted of child molestation and sexual conduct with a minor under the age of twelve. The trial court imposed enhanced, consecutive sentences of twenty-one years and life with the possibility of release after thirty-five years, respectively. On appeal, James primarily challenges the admission of other-act evidence pursuant to Rule 404(c), Ariz. R. Evid. We affinn for the reasons that follow. Factual and Procedural Background ¶ 2 We view the facts in the light most favorable to sustaining the convictions. See State v. Dixon, 226 Ariz. 546, n.2, 250 P.3d 1174, 1177 n.2 (2011). In 2014, James was charged in Pima County with two offenses arising from a single episode against T.H., his step-granddaughter, at some point between 2002 and 2007. T.H. was born in 1997, and she was between six and ten years old at the time of the incident. Count one alleged James had committed child molestation by touching her vulva with his finger; count two alleged sexual conduct with a minor based on him licking her vulva. ¶ 3 Before trial, the state sought to introduce evidence of other sex acts James had committed against T.H. around the same period of time. Those acts had been reported to, and investigated by, police in Mesa in 2006. Because T.H, was reluctant to participate in that investigation, no charges were brought in that jurisdiction. The state further sought to introduce evidence of various sex offenses James had committed against his stepdaughter A.H., who is T.H.’s mother, when she was a child in the 1980s. Those acts against A.H, had resulted in James pleading guilty to attempted sexual abuse. ¶ 4 James opposed the state’s motion and requested an evidentiary hearing in which A.H. and T.H. would testify and be subject to cross-examination. He asserted, inter alia, that without such testimony the trial court could not find he had committed the other acts by clear and convincing evidence, ¶ 6 After hearing argument on the motion, the trial court denied James’s requested hearing. The court then ruled the other-act evidence admissible under Rule 404(c) and made the findings required by that provision. The court based its ruling on “the documents that the State submitted as an offer of proof.” James had referred to several of those documents during the hearing, and he made no objection based on a lack of disclosure. With two exceptions, however, those materials were never entered into the trial court’s record. ¶ 6 At trial, A.H. testified that, from the time she was about seven years old until she was sixteen, James “would fondle [her] ... fondle [her] vagina .., grab [her] breast ... try to lick [her] ... [and] take pictures of [her].” A.H. further testified that James had been convicted based on those acts. As to the Mesa incidents, T.H, testified James had touched and licked her vagina, he had rubbed his penis against her vagina on three separate occasions, and he had taken photographs of her vagina. ¶ 7 With regard to the charged offenses in Pima County, T.H. testified that James had told her parents he was taking her to a store in his pickup truck. He then drove her to a remote area in the desert, stopped the truck, removed her pants, licked her vagina, and touched it with his finger. In a recorded telephone conversation or “confrontation call” from 2014 admitted at trial, James apologized to T.H. for touching and licking her vagina when she was younger. He also apologized when she stated he had done “it” to her “every time” she had visited him. ¶8 When T.H. asked why he had acted this way, James explained he was sexually attracted to young girls and he found it difficult to control his impulses around them. He acknowledged he had been similarly attracted to T.H.’s mother when she was a child, and, as a result, he had been convicted as a sex offender for “messing around” with her. The record of conviction the state entered into evidence showed that James had pleaded guilty in 1991 to attempted sexual abuse committed against A,H. in 1989. ¶ 9 After the jury found James guilty of both the charges, the trial court determined he had one predicate felony conviction. The court imposed the enhanced sentences noted above, and this appeal followed. Other-Act Evidence ¶ 10 James challenges the trial court’s admission of the other-act evidence on the ground that “contested [Rule] 404(c) evidence must be demonstrated by clear and convincing evidence at a pretrial hearing based on live witness testimony or former witness testimony, subject to cross-examination, with a sufficient record to permit effective appellate review.” Our analysis begins with the text of the rule, which provides, in relevant part: In a criminal case in which a defendant is charged with having committed a sexual offense, or a civil case in which a claim is predicated on a party’s alleged commission of a sexual offense, evidence of other crimes, wrongs, or acts may be admitted by the court if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged. In such a case, evidence to rebut the proof of other crimes, wrongs, or acts, or an inference therefrom, may also be admitted. (1) In all such cases, the court shall admit evidence of the other act only if it first finds each of the following: (A) The evidence is sufficient to permit the trier of fact to find that the defendant committed the other act. (B) The commission of the other act provides a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crime charged. (C) The evidentiary value of proof of the other act is not substantially outweighed by danger of unfair prejudice, confusion of issues, or other factors mentioned in Rule 403.... (D) The court shall make specific findings with respect to each of (A), (B), and (C) of Rule 404(c)(1). Ariz. R. Evid. 404(c). ¶ 11 The parties essentially raise three issues related to the other-act evidence. First, they dispute what a trial court must find when making its clear-and-eonvincing determination under Rule 404(c)(1)(A). Second, they disagree about whether an eviden-tiary hearing with witness testimony was required in this case. Third, they dispute what effect, if any, resulted from the failure to include in the record the state’s proffered evidence. We address each issue in turn, mindful that we generally review the admission of evidence under Rule 404(c) for an abuse of discretion, see State v. Vega, 228 Ariz. 24, ¶ 6, 262 P.3d 628, 630 (App. 2011), yet we review de novo the interpretation of the rules of evidence. See State v. Steinle, 239 Ariz. 416, ¶ 6, 372 P.3d 939, 941 (2016). Clear and Convincing Evidence ¶ 12 As a threshold matter, we must address what a trial court is required to find pursuant to Rule 404(c)(1)(A) when admitting other-act evidence. James contends a court must find, by clear and convincing evidence, that the defendant committed the other act alleged. The state, emphasizing the language of this subsection, maintains that the rule merely requires a determination of the legal sufficiency of the evidence, namely whether it would “permit the trier of fact to find that the defendant committed the other act.” Ariz. R. Evid. 404(c)(1)(A) (emphasis added). The state further reasons that, because the uncorroborated testimony of a single victim may suffice as proof beyond a reasonable doubt in cases involving sexual offenses, State v. Williams, 111 Ariz. 175, 177-78, 526 P.2d 714, 716-17 (1974), a trial court must find the Rule 404(c) standard met when an alleged act is supported by a victim’s statement, unless the victim’s account is physically impossible or otherwise so equivocal that reasonable persons could not accept it as true. If a trial court were to actually weigh the evidence under Rule 404(c), the state contends, this would “usurp the trier of fact’s (ie., the jury’s) role.” ¶ 13 We reject the state’s argument for several reasons, Our supreme court has repeatedly stated that, as a prerequisite for admitting evidence under Rule 404(c), “the court must find by clear and convincing evidence that the defendant committed the other act.” State v. Goudeau, 239 Ariz. 421, ¶ 59, 372 P.3d 945, 968 (2016); accord State v. Ferrero, 229 Ariz. 239, n.1, 274 P.3d 509, 511 n.1 (2012) (noting “[t]he state must prove that the defendant committed the other act” and citing State v. Terrazas, 189 Ariz. 580, 584, 944 P.2d 1194, 1198 (1997), as source of heightened standard of proof); State v. Aguilar, 209 Ariz. 40, ¶¶ 30, 34, 97 P.3d 865, 874, 875 (2004) (citing Terrazas and emphasizing trial court should focus on whether clear and convincing evidence establishes defendant committed other crimes). As an intermediate appellate court, we are bound to follow our supreme court’s construction of its own rules. Cullen v, Auto-Owners Ins. Co., 218 Ariz. 417, ¶ 10, 189 P.3d 344, 347 (2008); see State v. Bejarano, 219 Ariz. 518, ¶ 6, 200 P.3d 1016, 1017 (App. 2008) (“[W]e may not disregard or modify the law as articulated by the Arizona Supreme Court...,”). ¶ 14 However, even if the issue were an undecided one, we would reject the state’s contention given the great weight of authority against it. We acknowledge that the language of Rule 404(c) does not resolve the question presented. Indeed, the text of the rule does not specify any standard of proof for the admission of other-act evidence, which has led some commentators to question whether the clear-and-convincing standard articulated for criminal cases applies equally to civil ones. See, e.g., 1 Daniel J. McAuliffe & Shirley J. McAuliffe, Arizona Law of Evidence § 104:5 (4th ed. 2016). This lack of textual clarity in Rule 404(c)(1)(A) allows a court to consider the rule’s comment as evidence of the rule-makers’ intended meaning. See Aguilar, 209 Ariz. 40, ¶ 26, 97 P.3d at 873. That comment provides, in unambiguous terms: “To be admissible in a criminal case, the relevant prior bad act must be shown to have been committed by the defendant by clear and convincing evidence.” Ariz. R. Evid. 404(c) cmt. to 1997 amend. ¶ 15 Additional support for this view is found in the purpose of the rule, which is made manifest by its history and features. See State v. Whitman, 234 Ariz. 565, ¶ 8, 324 P.3d 851, 852 (2014) (recognizing language, context, background, and purpose of rule as guides to interpretation). In Aguilar, our supreme court explained that it had promulgated Rule 404(c) as a compromise measure, rejecting a broader proposal based on a federal rule “that would [have] allow[ed] a court to admit evidence of other sex crimes in most cases charging a sexual offense.” Aguilar, 209 Ariz. 40, ¶¶ 19-20, 97 P.3d at 871. Our supreme court also included procedural provisions in Rule 404(c) that are designed to reduce the extreme risk of undue prejudice a defendant faces when evidence of an aberrant sexual trait is offered. Aguilar, 209 Ariz. 40, ¶¶ 30-31, 97 P.3d at 874. Those procedures require a trial court to make specific findings regarding the pertinent standard of proof, the probative value of the evidence offered, and the potential for unfair prejudice. See Ariz. R. Evid. 404(c)(1)(D). ¶ 16 Rather than being an empty formality, this process is designed to be a meaningful exercise. Aguilar, 209 Ariz. 40, ¶¶ 30-31, 97 P.3d at 874. Requiring clear and convincing evidence of sexually aberrant acts provides “assurance that the other act indeed occurred,” thereby helping to “assur[e] that probative need over-balances the potential for unfair prejudice.” State v. Garcia, 200 Ariz. 471, ¶ 31, 28 P.3d 327, 332 (App. 2001), disapproved in part by Ferrero, 229 Ariz. 239, ¶¶ 10-12, 274 P.3d at 511-12. Arizona courts impose an elevated standard of proof under Rule 404(b) in criminal cases for the same reason: “[b]ecause of the high probability of prejudice from the admission of prior bad acts, the court must ensure that the evidence against the defendant directly establishes ‘that the defendant took part in the collateral act.’ ” Terrazas, 189 Ariz. at 584, 944 P.2d at 1198, quoting Vivian M. Rodriguez, The Admissibility of Other Crimes, Wrongs or Acts Under the Intent Provision of Federal Rule of Evidence kOk(B)\ The Weighing of Incremental Probity and Unfair Prejudice, 48 U. Miami L. Rev. 451, 457 (1993). ¶ 17 Accordingly, we hold that Rule 404(c) requires a trial court to determine, by clear and convincing evidence, that the defendant committed the other act. As a purely textual matter, the state’s contrary argument is a significant one. Yet the state’s construction fails to account for the interrelated provisions of Rule 404(e) and the rationale behind them. In essence, the state urges an approach similar to the federal rules of evidence, which assess whether the “jury could reasonably find ... that the ‘other act’ occurred” under the applicable standard of proof. United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998), citing Huddleston v. United States, 485 U.S. 681, 685, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). Because the Arizona Supreme Court has deliberately departed from the federal rules in this respect, see Aguilar, 209 Ariz. 40, ¶¶ 19-20, 97 P.3d at 870-71; Terrazas, 189 Ariz. at 581-82, 944 P.2d at 1195-96, we cannot accept the state’s contention. Evidentiary Hearing ¶ 18 As they did below, the parties next dispute whether the trial court was required to conduct an evidentiary hearing with witness testimony concerning the alleged other acts. James maintains such a hearing was necessary, relying on our supreme court’s decision in Aguilar, The state takes the opposite position, citing this court’s opinion in State v. LeBrun, 222 Ariz. 183, 213 P.3d 332 (App. 2009). The resolution of this question demands a somewhat detailed examination of both cases. ¶ 19 In Aguilar, the trial court had found evidence of three separate sexual assaults to be cross-admissible under Rule 404(c). Aguilar, 209 Ariz. 40, ¶¶ 2-4, 97 P.3d at 866. In making this ruling, the court had based its decision solely on the pleadings, the arguments of counsel, and a transcript of the grand jury proceeding. Id. ¶ 33. Those materials contained no testimony from the victims, only descriptions of them statements to police. Id. Thus, although the documents established that the defendant had been accused of sexual assault by the victims, those items did not resolve whether the sexual encounters had been consensual, as the defendant had claimed. Id. ¶ 34. ¶ 20 On these facts, our supreme court held that the determination required by Rule 404(c)(1)(A) depended on the relative credibility of the victims compared to the defendant. Aguilar, 209 Ariz. 40, ¶ 35, 97 P.3d at 875. The court further noted that a resolution of this credibility question was impossible because the trial court “neither heard from the victims nor was presented with any prior testimony from them.” Id. Our supreme court therefore reversed the lower court’s ruling due to insufficient evidence in the record “to make the necessary finding that clear and convincing evidence established” the other crimes. Id. ¶ 21 In LeBrun, this court distinguished Aguilar and clarified that Rule 404(c) does not require an evidentiary hearing with witness testimony in every case. LeBrun, 222 Ariz. 183, ¶ 13, 213 P,3d at 336. The state had submitted evidence to the trial court that included “audio and video recordings of statements by the victims.” Id. ¶ 8. We found this evidence sufficient to support a clear- and-convincing determination under Rule 404(c)(1)(A). LeBrun, 222 Ariz. 183, ¶ 15, 213 P,3d at 336. In so holding, we noted that the rules of evidence do not restrict the types of evidence a court may consider, nor do they necessarily require sworn statements. Id. ¶¶ 8, 13-14; see Ariz. R. Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible, In so deciding, the court is not bound by evidence rules, except those on privilege.”). Yet we also noted that no issue of material fact existed for the trial court to resolve in order to determine the admissibility of the evidence, LeBrun, 222 Ariz. 183, ¶ 15, 213 P.3d at 336. ¶ 22 We conclude the present case is more like LeBrrn than Aguilar, although we recognize that it lies between the two in some respects. Much like in Aguilar, the trial court here relied on documentary evidence to support its ruling. The court based its decision largely on “police reports” reciting the statements of the witnesses. But the court also considered first-person accounts by the victims, as in LeBrun, 222 Ariz. 183, ¶ 15, 213 P.3d at 336, The court read a transcript of T.H.’s forensic interview and a transcript of the confrontation call between T.H. and James. Unlike the recordings at issue in LeBrun, the transcripts in this case do not capture a witness’s appearance and demean- or, see State v. Sparks, 147 Ariz. 51, 54, 708 P.2d 732, 735 (1985), or the “paralinguistic features [of speech] such as pitch, intonation, and pauses” that assist a trier of fact in making credibility determinations. T.W.M. Custom Framing v. Indus. Comm’n, 198 Ariz. 41, ¶ 22, 6 P.3d 745, 752 (App. 2000). ¶ 23 Ultimately, however, we conclude the present case is most like LeBrun with respect to the paramount consideration in determining a defendant’s entitlement to an evidentiary hearing: whether a material factual dispute existed in the record that would necessitate the presentation of additional evidence. In LeBrun, no such material dispute existed. By contrast, the defendant in Aguilar had contradicted the witnesses’ accounts in a way that demanded resolution by the court. James made no comparable claims here. Nor did the record otherwise raise a question of witness credibility related to the other acts. Although James asserted in his responsive filing that T.H. “initially denied that events in Mesa ... [had] occurred” and that she had refused to participate in the Mesa investigation, his argument at the subsequent hearing and references to police documents neither supported these assertions nor raised any doubts about T.H.’s claims regarding the other acts. ¶ 24 In fact, the record supported both women’s allegations. In the confrontation call, James admitted to licking and repeatedly touching T.H. He likewise admitted to criminal activity with A.H. that had resulted in his conviction as a sex offender. James did not admit to all the details of the past incidents in the call itself. But both LeBrun and Rule 104(a) support the proposition that an evidentiary hearing is not required simply because a defendant demands one or because confrontation and cross-examination are the best tools for developing facts, exposing inconsistencies, and determining witness credibility. Given the absence of a true factual dispute regarding the other acts, the trial court did not abuse its discretion in finding the clear-and-convincing-evidence standard satisfied, even in the absence of a pretrial hearing with live witness testimony. Incomplete Record ¶25 Most of the documents relied on by the trial court are absent from the record before us. The defendant asserts that this constituted error which entitles him to relief. To the extent the state maintains that it did not need to file its proffered Rule 404(c) evidence in the record below, this contention is mistaken, The proponent of other-act evidence carries the burden of proving its admissibility in all respects. See Ferrero, 229 Ariz. 239, ¶ 24, 274 P.3d at 514 (noting proponent must “satisffy] Rule 404(c)’s prerequisites”); see also State v. Hargrave, 225 Ariz. 1, ¶ 10, 234 P.3d 569, 576 (2010) (acknowledging burden under Rule 404(b)); State v. Salazar, 181 Ariz. 87, 91, 887 P.2d 617, 621 (App. 1994) (emphasizing that proponent of other-act evidence must show Rule 403 balance favors admission); cf. State v. Ives, 187 Ariz. 102, 110, 927 P.2d 762, 770 (1996) (recognizing proponent’s burden under case law predating Rule 404(c)); State v. Superior Court, 129 Ariz. 360, 361-62, 631 P.2d 142, 143-44 (App. 1981) (same). And, Rule 404(c)(1)(D) requires specific findings by a trial court in order to enable appellate review of that court’s ruling. Aguilar, 209 Ariz. 40, ¶ 31, 97 P.3d at 874. For such a review to occur, the materials on which a trial court based its findings should be made part of the record. The failure to include such items in a trial record therefore does not comport with Rule 404(c). ¶ 26 The state suggests that the defendant has a duty to ensure that the state properly presents its evidence to support a Rule 404(c) finding. We reject the unsupported contention that the defendant has a duty to assist the state in complying with its evi-dentiary burden. However, the defendant does have a duty to object to any procedural irregularities he wishes to later raise on appeal. James did not specifically do so. He objected only to the absence of witness testimony and cross-examination. Rule 103(a)(1)(A), Ariz, R. Evid., requires that an objection be made with specificity so as “to allow the adverse party to obviate the objection and to permit the trial court to intelligently rule on the objection and avoid error.” In re Tiffany O., 217 Ariz. 370, ¶ 5, 174 P.3d 282, 284 (App. 2007), quoting Thompson v. Better-Bilt Aluminum Prods. Co., 187 Ariz. 121, 129, 927 P.2d 781, 789 (App. 1996). Because James did not properly raise the issue below when it could have been cured, he now carries the burden of showing any error was both fundamental and prejudicial in order to obtain appellate relief. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). ¶ 27 The state’s omission here resulted in no identifiable prejudice because James apparently had access to all the documents relied on by the trial court. As noted above, he made no objection to a lack of disclosure under Rule 404(c)(3), and he referred to numerous police documents at the hearing. The only question he raised concerning any documents was whether they were properly certified. His novel contention that the proffered documents were “secret” thus finds no support in the record, and his suggestion that the court might have relied on different documents than those disclosed is merely unfounded speculation. ¶ 28 In addition, the confrontation call and document showing his felony conviction were admitted at trial, as James acknowledges. He asserts that “it is not proper to consider trial evidence ... here.” But we may affirm an evidentiary ruling on any basis supported by the record. State v. Robinson, 163 Ariz. 191, 199, 735 P.2d 801, 809 (1987); see State v. Herrera, 232 Ariz. 536, ¶¶ 14, 24-25, 307 P.3d 103,110,113 (App. 2013) (distinguishing ruling under Rule 404(c) from one on motion to suppress evidence). James therefore has provided no reason to disturb the trial court’s ruling admitting the other-act evidence under Rule 404(c). Additional Issues ¶29 James raises two other issues as to which this court cannot grant appellate relief due to controlling adverse authority. First, as to the child molestation charge, James asserts the trial court failed to instruct the jury that the state was required to prove his touching was motivated by sexual interest. Our supreme court recently rejected the contention that such motivation is an element of child molestation, stating instead that the absence of sexual motivation is an affirmative defense to be proven by a defendant. State v. Hollé, 240 Ariz. 300, ¶ 1, 379 P.3d 197, 198 (2016). We are bound to follow this decision. See Francis v. Ariz. Dep’t of Tramp., 192 Ariz. 269, ¶¶ 10-11, 963 P.2d 1092,1094 (App. 1998) (recognizing that higher court’s opinion becomes controlling upon its publication, regardless of pending review). ¶ 30 Second, James preserves his objection to the trial court, rather than the jury, finding his prior conviction for the purpose of sentence enhancement. He maintains that this practice, which was approved by Almen-darez-Torres v. United States, 523 U.S. 224, 246, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), no longer enjoys the support of a majority of Supreme Court justices. As we stated, however, in State v. Keith, 211 Ariz. 436, ¶ 3,122 P.3d 229, 230 (App. 2005), we cannot anticipate a prospective ruling of the United States Supreme Court on this topic. Disposition ¶ 31 For the foregoing reasons, the convictions and sentences are affirmed as corrected. . We correct the sentencing minute enti7 by deleting the identical commencement date for the consecutive sentence imposed for count two, sexual conduct with a minor. Cf. State v. Ovante, 231 Ariz. 180, ¶ 39, 291 P.3d 974, 982 (2013) (correcting similar error). "It is ... manifestly impossible for consecutive sentences to both begin on the same date.” State v. Young, 106 Ariz. 589, 591, 480 P.2d 345, 347 (1971). . According to the trial court's remarks at the hearing, it had "read” T.H.’s statements in a forensic interview regarding the present offenses, a transcript of T.H.’s "confrontation call” with James, an interview between A.H. and a detective in this matter, police reports regarding the crimes against A.H., documents related to his conviction for that abuse, and police reports regarding the Mesa offenses against T.H. . The parties acknowledge that a record of James's prior conviction was later admitted into evidence, and the audio recording of the telephone call between T.H. and James was admitted at trial, but not the transcript of it. . Although James contends the denial of such a hearing violated his rights to confrontation and due process, we find these constitutional claims waived on appeal due to his failure to develop a legal argument on these issues. See Ariz. R. Crim. P. 31.13(c)(1)(vi); see also State v. Moody, 208 Ariz. 424, n.9, 94 P.3d 1119, 1147 n.9 (2004) ("Merely mentioning an argument is not enough.”).

CHIEF JUSTICE BALES, opinion of the Court: ¶ 1 We hold that a patient owes a duty of reasonable care to a caregiver allegedly injured by the patient’s actions, thereby making the patient potentially liable for negligence. We further hold that the negligence claim, which involves an in-home caregiver hired by the Arizona Department of Economic Security (“DES”), is not barred by the firefighter’s rule, a common law doctrine barring recovery by a rescuer for injuries incurred while performing duties as a professional firefighter. I. ¶ 2 We review a trial court’s grant of summary judgment de novo. Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12, 69 P.3d 7 (2003). Because the trial court granted summary judgment in favor of Defendant Francis Alger, we view the evidence and reasonable inferences in the light most favorable to Plaintiff Jeanette M. Sanders as the non-moving party. See id ¶ 3 In 2004, Sanders contracted with DES to provide in-home care to Alger, who is developmentally disabled and, as a “vulnerable adult,” is eligible for services from the DES Division of Developmental Disabilities. See A.R.S. § 36-559(A). Alger suffers from cerebral palsy and other conditions that limit his mobility and place him at risk of falling. Sanders worked for DES as an independent contractor rather than an employee. In 2011, Sanders, then sixty years old, was assisting seventy-four-year-old Alger in moving from his wheelchair to a car. Alger attempted to stand up and, distracted, did not respond to Sanders’ warnings and began to fall. When Sanders tried to prevent the fall, Alger grabbed her, and she said “let go, you’re hurting me.” Alger nonetheless fell on Sanders, seriously injuring her. Sanders subsequently sued Alger for negligence. Among other things, she alleged that he had negligently placed himself in jeopardy of falling, thereby requiring her to rescue him. ¶ 4 Alger moved for summary judgment, arguing that he did not owe a duty of care to Sanders, that the firefighter’s rule barred her claim, and that no reasonable jury could find that he had acted negligently. The trial court granted summary judgment based on the firefighter’s rule and did not address the other arguments. ¶ 5 The court of appeals reversed, holding that the firefighter’s rule does not apply. Sanders v. Alger, 240 Ariz. 90, 93 ¶ 12, 375 P.3d 1199 (App. 2016). The court also held that “Alger owed Sanders the basic duty that all persons owe each other: the duty to use reasonable care to avoid causing injury to others.” Id. at 94 ¶ 19, 375 P.3d 1199 (footnote omitted) (citing Ontiveros v. Borak, 136 Ariz. 500, 509, 667 P.2d 200 (1983)). The court concluded that Alger was not relieved of his duty by the fact that Sanders had contractually undertaken to care for him, including by helping to prevent the risks of his falling. Id at 93-94 ¶¶ 15-16, 375 P.3d 1199. ¶ 6 We granted review to consider whether a patient owes a caregiver a duty of reasonable care and, if so, whether the firefighter’s rule bars a caregiver’s negligence claim, both recurring issues of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24. II. A. ¶7 Under Arizona law, a plaintiff must prove four elements to sustain a claim for negligence: “(1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual damages.” Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9, 150 P.3d 228 (2007). “Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained.” Id ¶ 11 (citation omitted). ¶ 8 We first address whether Alger, the patient, owed any duty to Sanders, who provided caregiver services to him pursuant to her contract with DES. The court of appeals held that such a duty exists because all people have a duty to use reasonable care to avoid causing injury to others. Sanders, 240 Ariz. at 94 ¶ 19; cf. Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 7(a) (Am. Law Inst. 2010) (providing that “[a]n actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical haim”). Although we agree with the court of appeals that Alger owed a duty of reasonable care to Sanders, we decline to adopt that court’s rationale, as we need not here decide whether people generally owe a duty of reasonable care to others. Cf. Gipson, 214 Ariz. at 146 ¶ 24 & n.4, 160 P.3d 228 (noting tension in Court’s statements regarding scope of duty and declining, as unnecessary, to base decision on broad statements of duty generally owed by all persons). ¶ 9 Under Arizona common law, duties of care may arise from, among other things, a direct relationship between the parties. Id. at 144-45 ¶ 18, 150 P.3d 228; see also Stanley v. McCarver, 208 Ariz. 219, 221 ¶ 7, 223 ¶ 13, 92 P.3d 849 (2004) (recognizing duty by examining physician even absent formal physician-patient relationship); Ontiveros, 136 Ariz. at 508, 667 P.2d 200 (“The relation between individuals which imposes a legal obligation is usually a direct relationship between the plaintiff and defendant.”); cf. Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 41, 796 P.2d 470 (1990) (“Duty refers to the relationship between individuals; it imposes a legal obligation on one party for the benefit of the other party.”) (citation omitted). ¶ 10 No one questions that caregivers who contractually agree to provide services (such as helping a person with mobility issues) have a direct relationship with their patients and owe them a duty of reasonable care in connection with such services. Nor would anyone dispute that, given the relationship, the caregiver owes a duty of reasonable care with respect to actions beyond the contractually assumed responsibilities. For example, a caregiver hired to help with mobility issues would undoubtedly owe a duty of care that would be implicated if the caregiver negligently spilled scalding water on the patient. ¶ 11 The question here is whether patients owe any duty to their caregivers. Recognizing such a duty comports with our recognition of duties in other contexts. If a patient sues a caregiver for alleged negligence, the defendant caregiver generally will be able to argue that the patient’s own failure to act with reasonable care constitutes contributory negligence. See, e.g., George Washington Univ. v. Waas, 648 A.2d 178, 184-85 (D.C. 1994) (citing case law and jury instructions from numerous states and other legal authority recognizing a patient’s contributory negligence and duty to his or her physician in medical contexts); Richard A. Epstein, Torts § 8.2.1, at 189 (1999) (noting that duty is an element of contributory negligence). ¶ 12 Recognizing a duty of care on the part of patients is also consistent with the rescue doctrine recognized in Espinoza v. Schulenburg, 212 Ariz. 215, 129 P.3d 937 (2006), Under the rescue doctrine, an actor who negligently imperils himself or herself may be liable to a person who is physically harmed in attempting to aid or protect the actor. See Espinoza, 212 Ariz. at 217 ¶¶ 7-9, 129 P.3d 937 (adopting Restatement (Third) of Torts: Liab. For Physical & Emotional Harms § 32); see also Cowen v. Thornton, 621 So.2d 684, 687-88 & n.1 (Fla. Dist. Ct. App. 1993) (finding patient owed duty of care to caregiver despite patient’s assertion that the firefighter’s rule barred the caregiver rescuer’s claim). “The law should encourage people to respond to those in distress. The rescue doctrine does so by allowing the possibility of compensation to those who injure themselves while taking risks to help others.” Espinoza, 212 Ariz. at 217 ¶ 9, 129 P.3d 937. Thus, the rescue doctrine presumes a “duty” on the part of the actor whose conduct creates the need for rescue—if the actor fails to exercise reasonable care and imperils the actor or another, the actor’s breach of that duty may result in liability to a person harmed while trying to aid or protect the actor. See Sears v. Morrison, 76 Cal.App.4th 677, 90 Cal.Rptr.2d 528, 532-34 (1999) (compiling cases from various jurisdictions and other authorities recognizing that rescuer may seek recovery from person negligently placing himself or herself in danger). ¶ 13 Recognizing a duty by patients to their caregivers is not, of course, the same as saying that patients will be liable for injuries incurred by a caregiver in doing his or her job or that the patient’s standard of care is the same as that of a caregiver. See Restatement (Second) of Torts § 299(A) (Am. Law Inst. 1965) (noting “one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities”). That a duty exists does not mean that it has been breached in any particular case or that a negligent act has proximately caused an injury. Similarly, recognizing the existence of a duty of care does not preclude the jury’s application of doctrines such as comparative fault, assumption of risk, or superseding cause to limit recovery of damages. See Gipson, 214 Ariz. at 147 ¶ 30, 150 P.3d 228 (noting that “[wjhether the plaintiffs conduct constituted an intervening (or even a superseding) cause of the harm suffered is a question of fact and does not determine whether a duty exists”); see also A.R.S. § 12-2605(A) (providing that defenses of contributory negligence or assumption of risk do not bar action but reduce damages “in proportion to the relative degree of the claimant’s fault which is a proximate cause of the injury or death”). ¶ 14 Alger argues that public policy factors weigh against imposing a duty on him as a disabled adult because doing so would discourage individuals and them families from seeking state-provided caregiving services. Although public policy may support the adoption of a no-duty rule in some circumstances, see Guerra v. State, 237 Ariz. 183, 187 ¶ 20, 348 P.3d 423 (2015), we decline to adopt a rule that patients categorically owe no duty of care to those who provide caregiver services. Cf. Gipson, 214 Ariz. at 143-44 ¶ 11, 150 P.3d 228 (noting that “a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct”), ¶ 15 Contrary to Algex-’s arguments, a blanket exemption of liability for injuries patients cause their caregivers is not “neces-saiy as a matter of public welfare.” Ontiveros, 136 Ariz. at 513, 667 P.2d 200. Nor can we conclude that finding a duty here would “chill socially desirable conduct or otherwise have adverse effects.” Gipson, 214 Ariz. at 146 ¶ 29, 150 P.3d 228. Indeed, baiming recovery by caregivers might well discourage people from providing such services. ¶ 16 Apart from whether patients generally owe any duty to their caregivers, Alger also argues that we should find that no duty exists here because Sanders agreed in her contract with DES to provide services to protect Alger, and his individual support plan—of which she was aware—recognized that his condition placed him at risk of falling. Thus, Alger argues, he should not have owed any duty to Sanders to avoid the risk that she contractually undertook to prevent. This argument founders because, at bottom, it asserts that Sanders assumed the risk that caused her injury. Under Arizona law, whether a plaintiff has contractually assumed a risk is an issue of fact for the jury, not an issue of “duty” to be decided as a matter of law. See Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 404 ¶ 2, 405 ¶ 11, 111 P.3d 1003 (2005); see also Ariz. Const. art. 18, § 5; AR.S. § 12-2505(A). ¶ 17 In summary, we hold that, based on the direct relationship between caregiver and patient, the latter owes a duty of reasonable care with respect to conduct creating a risk of physical harm to the caregiver. B. ¶ 18 Alger argues that even if he owed a duty of care to Sanders, her negligence claim should be barred by the firefighter’s rule. Like the court of appeals, we conclude that the rule does not apply here. ¶ 19 The firefighter’s rule is an exception to the rescue doctrine, i.e., “[a] rescuer who could otherwise recover cannot do so if she is performing her duties as a professional firefighter.” Espinoza, 212 Ariz. at 217 ¶ 11, 129 P.3d 937. Our courts recognize the firefighter’s rule as a matter of public policy, noting that “the tort system is not the appropriate vehicle for compensating public safety employees for injuries sustained as a result of negligence that creates the very need for their employment.” Id. Rather, firefighters are compensated as public employees. Id. ¶ 20 In urging us to apply the firefighter’s rule, Alger notes that Sanders, although an independent contractor and not a public employee, was paid with public funds to care for him; Sanders may seek compensation for her injuries through the State’s Provider Indemnity Program (“PIP”); and Alger’s disabilities created the need for Sanders’ employment. ¶ 21 We construe the firefighter’s rule narrowly. Id. at 218 ¶ 17, 129 P.3d 937. “The rule applies when a firefighter’s presence at a rescue scene results from the firefighter’s on-duty obligations as a firefighter.” Id. (footnote omitted). Thus, the rule does not prohibit tort recovery for off-duty firefighters. Id. at 218-19 ¶ 17, 129 P.3d 937. Limiting the reach of the firefighter’s rule “comport[s] with Arizona’s policy of protecting its citizens’ right to pursue tort claims.” Id. at 218 ¶ 16, 129 P.3d 937; see also Ariz. Const. art. 18, § 6 (“The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation. ...”); id. art. 2, § 31 (prohibiting laws limiting damages for death and injury). ¶ 22 Moreover, the firefighter’s rule is an exception to the rescue doctrine rather than a more general rule barring tort recovery. Our recognition of a patient’s duty to his or her caregiver is based on the direct, categorical relationship and is not limited to situations in which the caregiver responds to an emergency created by the patient’s negligence. Arguably, the rescue doctrine would not apply (nor would the firefighter’s rule as an exception to that doctrine) in this case, inasmuch as Sanders was performing her usual duties in assisting Alger rather than responding to an emergency. Cf. Orth v. Cole, 191 Ariz. 291, 292 ¶ 6, 965 P.2d 47 (App. 1998) (declining to apply firefighter’s rule to routine inspections). ¶ 23 In any event, we decline to extend the firefighter’s rule to caregivers to prohibit their recovery when responding to an emergency. Unlike firefighters, caregivers generally are not “public safety employees” who are trained, equipped, and compensated to professionally rescue others. See Espinoza, 212 Ariz. at 217 ¶ 11, 129 P.3d 937. Even though the caregiver’s salary here was paid with public funds, like a firefighter’s, see id. (quoting Grable v. Varela, 116 Ariz. 222, 223, 664 P.2d 911 (App. 1977)), such compensation does not convert a caregiver into a professional rescuer. Furthermore, the existence of the PIP does not alter our conclusion. Cf. id. at 219 ¶ 20, 129 P.3d 937 (“[T]he availability of workers’ compensation to a particular worker does not control our determination of the applicability of the firefighter’s rule.”). Finally, we agree with the court of appeals that Sanders’ job did not depend on encountering “negligence that creates the very need for [her] employment” in the same way a firefighter encounters mostly negligently caused fires. See id. at 217 ¶ 11, 129 P.3d 937. C. ¶ 24 Alger argued in the trial court that no reasonable juror could find he acted negligently in the circumstances of this case. The trial court did not decide this issue, and the court of appeals declined to do so in the first instance. See Sanders, 240 Ariz. at 95 ¶ 21, 375 P.3d 1199. We did not grant review on this issue, but we note it to underscore that our ruling does not establish liability on Alger’s part. As the court of appeals recognized, id. at 94 ¶ 19 n.2, 375 P.3d 1199, the duty owed by Alger is that of a reasonable person under the circumstances, and those circumstances include his physical disabilities and limitations. See Alhambra Sch. Dist., 165 Ariz. at 42, 796 P.2d 470 (“The particular facts of the case ... are the circumstances under which the reasonableness of the [defendant’s] conduct is to be judged.”) (footnote omitted); Morris v. Ortiz, 103 Ariz. 119, 121, 437 P.2d 652 (1968); Restatement (Second) of Torts § 283(C) (Am. Law Inst. 1965). He will be entitled to summary judgment if, as he contends, “no reasonable juror could conclude that the standard of care was breached....” Gipson, 214 Ariz. at 143 ¶ 9 n.1, 150 P.3d 228. III. ¶ 25 We vacate ¶¶ 6-19 of the court of appeals’ opinion, reverse the trial court’s summary judgment in Alger’s favor, and remand the case to the trial court for further proceedings consistent with this opinion.

OPINION HOWE, Judge: ¶ 1 In 2013, the Arizona Department of Revenue (“Department”) decided that it could value for taxation purposes solar ener gy panels owned by companies that lease and install the panels on their customers’ property for the generation of electricity. The Department determined that the panels could be valued because under the relevant Arizona statutes, the panels were renewable energy equipment that solar power companies used in the operation of an electric generation facility. ¶ 2 Two solar power companies, SolarCity Corporation and SunRun, Inc. (collectively, “Taxpayers”) sought a declaratory judgment in the tax court that the solar panels were not taxable. They argued that the panels were not renewable energy equipment used in the operation of an electric generation facility, but were used for the customers’ production of electricity for their own consumption. They also argued that because the panels were solar energy systems designed to produce electricity primarily for on-site consumption, the panels had no value for taxation purposes. ¶3 After considering cross-motions for summary judgment, the tax court issued a declaratory judgment agreeing with Taxpayers that the solar panels were not renewable energy equipment used in the operation of an electric generation facility and could not be so valued under the taxation statutes. The tax court further declared, however, that considering solar panels designed primarily for on-site consumption to have no value or to add no value to property for taxation purposes violated the Exemptions and Uniformity Clauses of the Arizona Constitution. The court ruled that valuing the solar panels at zero effectively exempted them from taxation. The court also ruled that distinguishing between solar panels that are used “primarily” for on-site consumption and those that are not did not treat similarly-situated property uniformly. The Department and Taxpayers both appeal that judgment. ¶ 4 Upon review, we affirm the judgment in part and reverse in part. The tax court correctly ruled that the Department had no statutory basis to value the solar panels leased to Taxpayers’ customers because the panels do not constitute renewable energy equipment used in an electric generation facility. We reverse the tax court’s declaration of unconstitutionality, however. Legislatively mandating that Taxpayers’ solar panels have or add no value for tax purposes does not exempt them from taxation, and treating solar energy systems designed primarily for on-site consumption differently from those that are not does not violate the principle of uniformity because the two types of systems are not similarly-situated property. FACTS AND PROCEDURAL HISTORY ¶ 5 Taxpayers sell and lease rooftop solar panel systems to owners of residential and commercial buildings and also install, maintain, and operate the panels. The solar panels take solar energy, convert it to electricity in an inverter, and use the converted energy to meet the building’s current electricity demands. Because this process generates electricity for the residence or commercial property without drawing electricity from a utility company, it is referred to as being “behind the meter.” The energy that the solar panels produce cannot be stored, however, and must be used as it is generated. Accordingly, whatever generated electricity is not used to meet the building’s current electricity demands travels from behind the meter to power grids owned and maintained by traditional utility companies. Taxpayers’ solar panels are thus “grid-tied,” or linked to the traditional utility power grids. ¶ 6 Most homeowners with Taxpayers’ solar panels have a “net-metering” agreement with the traditional utility companies. Net-metering is a process through which the utility companies track the amount of electricity that flows from behind the meter onto the grid from the building’s solar panel, and credit the homeowner for the retail value of that amount. The utility companies then ap ply this credit to offset the cost of electricity that the home or building owner must purchase from the utility company during times when the solar panels cannot produce power. ¶ 7 Because the solar panels are intended to generate and provide electricity to meet a building’s needs, Taxpayers design each individual system separately. In doing so, they rely on the customer’s consumption data to ascertain how much energy the building typically uses, as well as data relating to the physical characteristics of the installation location. After obtaining this data, Taxpayers typically create a solar panel system that produces less than 100% of the annual consumption. This standard ensures compliance with Arizona Corporation Commission regulations that prohibit rooftop solar panel systems from producing more than 125% of the location’s annual consumption. How much electricity is actually consumed once a solar panel system is installed, however, depends on the habits of the building owners and several other variables, including weather and the number of occupants during a given period. ¶ 8 In 2013, the Department issued a memorandum analyzing two statutes to determine whether solar panels “owned by a solar power company and installed at a customer’s site to sell or provide power to the customer” are taxable and subject to valuation by the Department or local valuation by the counties. The first statute, A.R.S. § 42—11054(C)(2), (the “solar energy systems statute”) requires the Department to prescribe guidelines for applying standard appraisal methods and techniques to be used by the county assessors in determining a property’s value. The statute specifies, however, that in applying any prescribed standard appraisal methods and techniques, “solar energy devices, ... grid-tied photovoltaic systems and any other device or system designed for the production of solar energy primarily for on-site consumption are considered to have no value and to add no value to the property on which such device or system is installed.” A.R.S, § 42-11054(C)(2). The second statute, A.R.S. § 42-14165 (the “renewable energy equipment valuation statute”), requires the Department to value “renewable energy equipment” for taxation purposes at 20% of the equipment’s depreciated cost. For purposes of this renewable energy equipment valuation statute, “renewable energy equipment” means “electric generation facilities ... located in this state, that [are] used or useful for the generation ... of electric power ... derived from solar ... not intended for self-consumption.” A.R.S. § 42-14155(0(3). ¶ 9 Reading these statutes together, the Department concluded that leased solar panels should be assessed by the Department under the renewable energy equipment valuation statute as renewable energy equipment. The Department reasoned that because solar panel companies—which own the panels—do not consume the electricity the leased panels produce, the panels are not intended for self-consumption and therefore must be renewable energy equipment. The Department stated that this specific statute applies only when the solar panels are leased by solar panel companies, but not when the homeowners themselves own the panels. In the latter situation, because the solar panel owners would be the ones using the produced energy, the solar energy systems statute would apply and the panels would be considered to have no value and add no value to the property. ¶ 10 In May 2014, Taxpayers asked the Department to reconsider its position because it had incorrectly interpreted the solar energy systems statute. When the Department notified Taxpayers that it stood by its position, Taxpayers sought a declaration in the tax court that the Department lacked authority to assess Taxpayers’ leased solar panels under the renewable energy equipment valuation statute because the panels were systems designed for primarily on-site consumption, which meant that under the solar energy systems statute, the panels had no value or added no value to any property on which the panels were installed. ¶ 11 Soon after, Taxpayers moved for summary judgment on the interpretations of the solar energy systems statute and the renewable energy equipment valuation statute. Taxpayers argued that the tax court could enter summary judgment without a need for discovery because the issues presented in the complaint were purely legal and no genuine issues of material fact existed. The Department disagreed, however, and moved for additional time to conduct discovery before responding to Taxpayers’ motion. The Department argued that it needed to obtain discovery about how the solar panels deliver electricity, who Taxpayers’ customers are, and generally what Taxpayers’ business models are. The tax court granted the Department’s request. ¶ 12 Disputes continued over the following months about the necessity and sufficiency of discovery requests. Counsel met to confer about the disputes and ultimately resolved many by stipulation. But they were unable to resolve disputes about the disclosure of Taxpayers’ strategic plans and the names of representatives that might have other sought-after information, so the Department moved to compel their production. The parties then agreed to stay the motion to allow time to depose Taxpayers’ representatives. The Department nevertheless continued to request additional time for discovery and additional information, and ultimately asked the tax court to lift the stay on the motion to compel. The tax court denied the motion. The Department later moved to compel again, but the tax court denied the motion, finding that although the Department maintained that any disclosures it received from Taxpayers were inadequate, the Department failed to “describe the response to each request or how, or why, such response is inadequate.” ¶ 13 In March 2015, the Department cross-moved for summary judgment, arguing that Taxpayers’ solar panels must be centrally assessed by the Department under the renewable energy equipment valuation statute as a matter of law. The Department argued alternatively that the tax court should hold that the valuation provided by the solar energy systems statute is unconstitutional as applied to Taxpayers’ leased panels because those panels are not entitled to a zero-value. It further argued that application of the solar energy systems statute to leased panels violated the Uniformity Clause of the Arizona Constitution because “the electrical generation properties of traditional electrical generators can be valued under A.R.S. § 42-14151 [ (the “electric generation statute”) ] ... but the electrical generation properties of distributed electrical generators,” which the Department argued included leased solar panels, cannot. In the meantime, the Department mailed notices of value to Taxpayers for the 2015 tax year valuing their properties consistent with the 2013 memorandum, ¶ 14 The tax court granted Taxpayers summary judgment in part, holding that Taxpayers’ solar panels do not conduct the “generation of electricity” for purposes of the electric generation statute, and that the Department therefore lacked the authority to centrally assess the panels under that statute and the renewable energy equipment valuation statute. The court reasoned that the solar panels do not deliver the electricity they produce through a transmission and distribution system as the statute requires. The court stated that the panels instead transfer any surplus energy to the meter, where the traditional utility companies receive it and then use their own transmission and distribution system to deliver that energy to their own customers. The tax court concluded that because the Department lacks authority to assess- the solar panels, the panels must be locally assessed and valued by the individual counties pursuant to A.R.S. § 42-13051(A). ¶ 15 The tax court denied Taxpayers’ motion for summary judgment, however, on the issue of valuation, finding the solar energy systems statute unconstitutional for two reasons. First, the tax court held that the solar energy systems statute violated the Exemptions Clause, Article 9, Section 2 of the Arizona Constitution, because it effectively exempted the panels from taxation. The tax court reasoned that by mandating that solar panel systems have no value for assessment purposes, “whether no tax is assessed or a tax is assessed on a value of zero, the result is zero tax.” The court further stated that although the Legislature may choose to not tax certain categories of property, it may not exempt otherwise taxable property. ¶ 16 Second, the tax court held that the solar energy systems statute violated the Uniformity Clause, Article 1, Section 1 of the Arizona Constitution, because the statute distinguished between solar panels “primarily” intended for self-consumption and those that were not. Consequently, “within [the renewable energy equipment valuation statute’s] class of equipment producing electricity not for self-consumption,” two tax rates existed: “zero for equipment meeting the ‘primarily’ standard and [20%] of depreciated cost for other equipment.” ¶17 The tax court held that the solar energy systems statute violates the Uniformity Clause also because the statute would apply differently “based on the amount of electricity used by the building on which the device is installed.” The tax court explained through hypothetical examples that houses with identical solar panels would be taxed differently depending on whether the panels’ output was more or less than 126% of the particular house’s consumption in a given month. ¶ 18 Additionally, the tax court denied all requests for attorneys’ fees and sanctions under A.R.S. § 12-349, finding that neither party unreasonably delayed the proceedings. The court stated that the novel nature of the issues was such that the law and unfamiliar factual scenarios were important to both sides. The court further stated that neither party acted in bad faith, but instead simply disagreed on the scope of discovery and strongly advocated accordingly. The court also denied Taxpayers’ request for attorneys’ fees under A.R.S. § 12-348(B) because they were not the prevailing parties. Although Taxpayers received the sought-after declaration that the Department lacked the authority to centrally assess the solar panels under the electric generation statute and the renewable energy equipment valuation statute, the tax court also held that the statute that Taxpayers argued exempted them from taxation was unconstitutional. Finally, the court held that, like Taxpayers, the Department did not prevail for purposes of awarding costs under A.R.S. §§ 12-332 and -341, and denied their requests. ¶ 19 The court entered judgment consistent with these rulings. Taxpayers timely appealed from the portions of the tax court’s judgment holding that the solar energy systems statute is unconstitutional and declaring that the counties have authority to assess and value their solar panels. The Department also timely appealed the tax court’s judgment that the Department cannot assess Taxpayers’ solar panels under the electric generation statute and the renewable energy equipment valuation statute. Both parties appeal from the tax court’s denial of the imposition of sanctions and attorneys’ fees against either party. DISCUSSION 1. The Department’s Assessment Authority ¶ 20 The Department first argues that the tax court erred by granting Taxpayers’ motion for summary judgment regarding its authority to centrally assess Taxpayers’ solar panels. Specifically, the Department argues that the electric generation statute mandates that it centrally assess Taxpayers’ leased solar panels because Taxpayers are in the business of operating “electric generation facilities” under the statute’s definition. Summary judgment may be granted when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a). When the material facts are undisputed, this Court determines whether the tax court correctly applied the substantive law to those facts. Duke Energy Arlington Valley, LLC v. Ariz. Dep't of Revenue, 219 Ariz. 76, 77 ¶ 4, 193 P.3d 830, 331 (App. 2008). We review the tax court’s granting summary judgment de novo. Scottsdale/101 Assocs., LLC v. Maricopa Cty., 238 Ariz. 291, 292 ¶ 7, 359 P.3d 1036, 1036 (App. 2015). We similarly review the tax court’s construction of applicable statutes de novo. See Chevron U.S.A. v. Ariz. Dep’t of Revenue, 238 Ariz. 619, 520 ¶ 6, 363 P.3d 136, 137 (App. 2015). Because Taxpayers’ solar panels—regardless whether sold or leased— do not fit within the electric generation or renewable energy equipment valuation stat utes, the tax court did not err by granting summary judgment. ¶ 21 The primary goal of statutory interpretation is to effectuate the Legislature’s intent. General Motors Corp. v. Maricopa Cty., 237 Ariz. 337, 339 ¶ 8, 350 P.3d 841, 843 (App. 2015). The statute’s plain language is the most reliable indicator of that intent. Sempre Ltd. P’ship v. Maricopa Cty., 225 Ariz. 106, 108 ¶ 5, 235 P.3d 259, 261 (App. 2010). In interpreting a statute, we consider it as a whole, which includes considering its context within a broader statutory scheme. General Motors, 237 Ariz. at 339 ¶ 8, 350 P.3d at 843. ¶ 22 The Arizona Constitution states that all property not exempt by law is subject to taxation. Ariz. Const, art. 9, § 2(13). Subject to constitutional limitations, the Legislature enjoys plenary power over taxation. Waddell v. 38th St. P’ship, 173 Ariz. 137, 140, 840 P.2d 313, 316 (1992). In exercising this power, the Legislature has directed that the Department “shall annually determine the valuation, in the manner prescribed by this article, of all property, owned or leased, and used by taxpayers” that are in the business of operating an electric generation facility. A.R.S. § 42-14151(A)(4). An “electric generation facility” includes “all land, buildings and personal property that is situated in this state and that is used or useful for the generation of electric power.” AR.S. § 42-14156(B)(1). The “generation of electricity” means “the process of taking a source of energy ... or renewable sources and converting the energy into electricity to be delivered to customers through a transmission and distribution system.” A.R.S. § 42-14151(B). Further, the Legislature has mandated that the Department determine the full cash value of taxable renewable energy equipment at 20% of its depreciated cost. A.R.S. § 42-14155CA), (B). “Renewable energy equipment” for purposes of the valuation statute means “electric generation facilities ... used or useful for the generation, storage, transmission or distribution of electric power ... derived from ... nonpetroleum renewable sources not intended for self-consumption.” A.R.S. § 42-14155(0(3). ¶ 23 None of these statutes authorize the Department to centrally assess Taxpayers’ solar panels because: first, Taxpayers are not in the business of operating an electric generation facility, and second, the solar panels are not renewable energy equipment. First, the electric generation statute does not apply to Taxpayers because they are not in the business of operating electric generation facilities that convert energy to electricity to be delivered to customers through a transmission and distribution system. While the grid-tied solar panel systems that Taxpayers sell or lease to their customers do take a source of energy (solar) and convert it into electricity, the panels do not do so specifically “to be delivered to customers through a transmission and distribution system” as the electric generation statute requires. The panels convert the energy into electricity to be consumed by the building on which they are installed. The record shows that the panels’ location “behind the meter” allows the panels to generate energy to meet the power demand of the home or business on which they are installed. Only after this power is made available to a home or business does the variable amount of surplus electricity travel from behind the meter to traditional utility company grids. Under the net-metering model, the traditional utility company purchases that surplus electricity in exchange for a credit to the building’s owner, then distributes its newly acquired electricity through its transmission and distribution system to its own customers who need it at that time. ¶ 24 Taxpayers do not sell electricity or control the use of the converted energy and do not receive any benefit from the traditional utility companies for the generation of surplus power. Taxpayers’ involvement does not reach beyond managing the purchase or lease agreements with their own customers and installing and maintaining the solar panels. Although electricity generated by the solar panels, if not otherwise used, may ultimately end up supplying the power needs of traditional utility customers, this is not the primary purpose of the conversion of energy by the panels. Instead, this is simply a secondary function that occurs when the individual customer’s demand fluctuates but the generation of electricity remains constant. If the purpose of Taxpayers’ solar panels was the generation of electricity to export to the grid for sale to utility customers, Taxpayers would essentially be the utilities’ suppliers— not their competitors as the Department urges. ¶ 25 The Department counters that nothing in the statute’s language specifies that all produced electricity must be delivered to the property owner’s (here, Taxpayers’) own customers, and that interpreting it as such improperly adds words to the electric generation statute’s plain language. But giving the statute the meaning that the Department urges—that equipment generates electricity if it converts energy that is ultimately delivered to any customer or end-user through a transmission and distribution system—is the interpretation that reads words into the statute, and is inconsistent with the statute’s plain meaning. The Department’s interpretation requires adding the words “any provider’s” before “customers.” This interpretation necessarily fails for yet another reason. The Legislature would have had no need to specify that the electricity be delivered to “customers” if it intended to apply to any person, place, or thing that uses electricity received from a transmission and distribution system. Such intent could have been achieved by omitting the word “customers.” This interpretation thus would render the word insignificant and superfluous. See Corbett v. ManorCare of America, Inc., 213 Am 618, 629 ¶ 35, 146 P.3d 1027, 1038 (App. 2006) (providing that in interpreting a statute, “we give meaning to each word or phrase ... so none is rendered insignificant, contradictory, superfluous, or void”). ¶ 26 The Department additionally counters that holding that Taxpayers’ solar panels do not “generate electricity” pursuant to the electric generation statute would lead to absurd results because “no merchant electric facilities, which act as electric wholesalers, would be subject to the Department’s valuation and assessment,” However, the merchant electric facilities the Department refers to do convert energy to electricity to be delivered to customers through a transmission and distribution system. Unlike Taxpayers’ solar panels, which convert energy to be used primarily to meet the power needs of the buildings on which they are installed, merchant electric facilities convert energy to be delivered through the grid to utility customers. Moreover, merchant electric facilities convert energy on a large scale for sale to utilities, rather than on a small scale for personal use, as solar panels on individual buildings do. In fact, the panels are limited to producing no more than 125% of electricity to meet a specific building’s calculated use—a limitation not present for electric wholesalers. Thus, the electric generation statute does not apply to Taxpayers’ solar panels. ¶ 27 Second, just as the electric generation statute does not apply because Taxpayers are not in the business of operating an electric generation facility, the renewable energy equipment valuation statute also does not apply because Taxpayers’ solar panels are not “renewable energy equipment.” See A.R.S. § 42-14155(0(3). In exercising its plenary taxation power, the Legislature has mandated that the Department determine the full cash value of taxable renewable energy equipment—which includes equipment not intended for self-consumption—at 20% of its depreciated cost. See A.R.S. §§ 42-14155(A), (B), -14155(C)(3). As explained above, the solar panels do not “generate electricity” under the electric generation statute because they do not convert energy to be delivered to customers through a transmission and distribution system, and thus are not “electric generation facilities” under the statutes’ definitions. Moreover, the panels convert energy into electricity intended for self-consumption by the panel owners or lessors. Accordingly, because Taxpayers’ solar panels do not “generate electricity” in the way described by the electric generation statute, the panels are not “renewable energy equipment,” and the statute does not apply to them. The Department thus lacks authority under it to centrally assess the panels pursuant to the renewable energy equipment valuation statute, and the tax court did not err by granting summary judgment on this issue. 2. The Solar Energy Systems Statute ¶ 28 Taxpayers agreed with the tax court that the electric generation and renew able energy equipment valuation statutes do not authorize the Department to centrally assess Taxpayers’ panels. But they contend that the tax court erred by ruling that the solar energy systems statute—which requires that Taxpayers’ panels, as solar energy systems designed for the production of solar energy primarily for on-site consumption, “are considered to have no value and to add no value to the property on which such device or system is installed”—violates the Arizona Constitution’s Exemptions and Uniformity Clauses. Ariz. Const. art. 9, §§ 1, 2(18). We review a statute’s constitutionality de novo and, if possible, construe it to uphold its constitutionality. State v. Glassel, 211 Ariz. 33, 51 ¶ 65, 116 P.3d 1193, 1211 (2005). In doing so, we presume that the statute is constitutional. Kurti v. Maricopa Cty., 201 Ariz. 165, 168 ¶7, 33 P.3d 499, 502 (App. 2001). The tax court erred because the solar energy systems statute neither exempts property from taxation, nor treats similarly-situated property different under the tax law. 2a. The Exemptions Clause ¶ 29 Taxpayers argue that the tax court erred by finding that the solar energy systems statute unlawfully exempted the solar panels from taxation because the Arizona Constitution does not provide an applicable exemption. Although we generally liberally construe statutes that impose taxes in favor of taxpayers, CCI Europe, Inc. v. Ariz. Dep’t of Revenue, 237 Ariz. 50, 52 ¶ 8, 344 P.3d 352, 354 (App. 2015), we strictly construe tax deductions and exemptions, Ariz. Dep’t of Revenue v. Raby, 204 Ariz. 509, 511-12 ¶ 16, 65 P.3d 458, 460-61 (App. 2003). Even construing the statute strictly, however, the solar energy systems statute does not improperly exempt Taxpayers’ solar panels from taxation; therefore, the statute is not unconstitutional. ¶30 The Arizona Constitution’s Exemptions Clause provides that all property not specifically exempted by the Constitution is “subject to taxation ... as provided by law.” Ariz. Const, art. 9, § 2(13). This means that the Legislature may impose a tax on all property not specifically exempted and may establish the mechanism for doing so. Airport Props. v. Maricopa Cty., 195 Ariz. 89, 99 ¶ 37, 985 P.2d 574, 584 (App. 1999). But “the limited exemption authority that the Arizona Constitution grants to the Legislature necessarily curtails the scope of any tax-exemption statute.” Univ. Med. v. Ariz. Dep’t of Revenue, 201 Ariz. 447, 452 ¶ 21, 36 P.3d 1217, 1222 (App. 2001). Stated differently, while the Legislature may choose to not tax certain classes of property, it may not exempt property from taxation that the constitution does not exempt and is otherwise taxable. Kunes v. Samaritan Health Serv., 121 Ariz. 413, 415, 590 P.2d 1359, 1361 (1979). ¶31 Nevertheless, the provision does not require that the Legislature tax all property not specifically exempted. Airport Props., 195 Ariz. at 99 ¶ 37, 985 P.2d at 684 (stating that when something is “subject to” an influence or action, “it does not communicate the idea that it continuously and actively is affected by that influence or action”), The Legislature may choose to not tax certain classes of property which it may otherwise tax. Id. at 101 ¶ 44, 985 P.2d at 586 (rejecting the argument that the Legislature has a positive duty to tax all non-constitutionally exempt property unless the constitution requires it not to). ¶ 32 As the tax court noted, the constitution does not provide a specific exemption for solar panels. Consequently, the Legislature is prohibited from exempting the panels from taxation. But the Legislature has not done so here. It has instead directed that the Department set guidelines for applying standard appraisal methods and techniques to be used by it and county assessors in determining the value of property. The statute further provides that in applying those standard ap-pi’aisal methods and techniques to ascertain the value of the solar panels, leased or owned, the panels should be assessed as if they have or add no value. In other words, the Legislature has established that when assessing taxes, solar energy systems should not be separately valued. ¶ 33 We have previously held that a legislative decision to not tax property does not exempt property from taxation, but “omits [the property] from the state’s exercise of its power to tax by dint of sovereign political discretion.” See id. at 101 ¶ 43, 985 P.2d at 586. A similar but more straightforward situation exists here. The solar energy systems statute’s plain language indicates that the Legislature chose to exercise its power of taxation and assign a value of zero to installed grid-tied photovoltaic and solar energy systems when applying standard appraisal methods and techniques. The solar energy systems statute is not an exemption from taxation; it is merely the Legislature’s directive to assess and tax a specific property class in a particular way. Cf. Cutter Aviation, Inc. v. Ariz. Dep’t of Revenue, 191 Ariz. 485, 498, 958 P.2d 1, 14 (App. 1997) (“Rather than exempting certain property from taxation, class 12 merely provided a different assessment rate for such property” when it imposed only a 1% tax rate instead of the 25% tax rate imposed upon property in other classes). Accordingly, the statute does not violate the Exemptions Clause. 2b. The Uniformity Clause ¶ 34 Taxpayers further argue that the tax court erred by holding that the solar energy systems statute violates the Uniformity Clause by creating two tax rates for “equipment producing electricity not for self-consumption” depending on whether the equipment “meet[s] the ‘primarily’ standard.” If the Legislature chooses to tax property, the Uniformity Clause mandates that “all taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax.” Ariz. Const. art. 9, § 1. A “class” of property includes “similarly-situated properties possessing common attributes ‘based on the nature of the property or on some other real difference in its use, utility, or productivity.’” Aileen H. Char. Life Interest v. Maricopa Cty., 208 Ariz. 286, 292 ¶ 15, 93 P.3d 486, 492 (2004). A statutory classification violates the Uniformity Clause if it applies differently to businesses that (1) are direct competitors, (2) provide similar services, (3) have the same customer base, and (4) use the same equipment type. Cable One, Inc. v. Ariz. Dep’t of Revenue, 232 Ariz. 275, 286 ¶ 49, 304 P.3d 1098, 1109 (App. 2013). In considering these factors, courts look at the property’s physical attributes, productivity, use, and purpose. In re America W., 179 Ariz. 528, 532 n.4, 880 P.2d 1074, 1078 n.4 (1994). But the paramount concern is whether the properties and the comparison taxpayers are functionally equivalent. Citizens Telecomm. Co. of White Mountains v. Ariz. Dep’t of Revenue, 206 Ariz. 33, 39 ¶ 24; 75 P.3d 123, 129 (App. 2003). ¶ 35 Here, the tax court incorrectly held that the solar energy systems statute violates the Uniformity Clause. Taxpayers are not functionally equivalent to the local utilities and electric generation facilities taxed under the electric generation and renewable energy equipment valuation statutes. Taxpayers and local utilities and other electrical generators are not direct competitors. Large-scale utility facilities produce large amounts of energy to be made available to all traditional utility customers. They sell the service of providing this electricity through the companies’ transmission and distribution systems. Conversely, the solar panels Taxpayers lease and install are typically designed to meet less than 100% of the energy demand of the building on which they are located, and are capped to produce up to 125% of that building’s demands. The solar panel companies sell the service of designing a solar panel system appropriate for the building and sell or lease the product itself. The electricity produced is intended primarily to meet the power needs of the building on which the panels are installed, and only after it meets those needs does surplus energy, if any, move from behind the meter to the grid so that traditional utilities can deliver it to their customers. ¶ 36 The equipment governed by the solar energy and electric generation statutes also provides different services to different customer bases. The most notable difference is the former: Taxpayers and owners of renewable energy equipment provide different services. Taxpayers lease or sell individual solar panels to be installed on roof tops. Those panels are intended to produce electricity to be consumed initially by the building on which they sit. Any surplus electricity then is transferred to the grid and the homeowner receives a credit. In contrast, renewable energy equipment that “generates electricity5’ pursuant to the electric generation statute produces energy specifically to be delivered to traditional electricity customers through the utility-maintained transmission and distribution system. The energy produced is not intended to be self-consumed or consumed on site. Consequently, the two taxpayers and types of property also serve different customer bases. ¶ 37 Finally, Taxpayers and local utilities or other electric generators do not use the same type of property. As explained above— and as the tax court found—the renewable energy equipment valuation statute does not apply to Taxpayers’ solar panels because the panels do not fit into that statute’s definition of “renewable energy equipment.” The renewable energy equipment that the renewable energy equipment valuation statute applies to are electric generation facilities not intended for self-consumption. Taxpayers’ solar panel systems, on the other hand, are designed to convert solar energy into electricity to be used primarily for on-site consumption by the building on which they are installed. The panels are also installed “behind the meter,” while the equipment used by electric generators is installed in front of it. Additionally, Taxpayers’ solar panels are limited in design to produce up to 125% of a particular building’s power needs pursuant to state regulations, unlike the equipment used by large electric generation facilities that generate sufficient energy to help meet all current power demands of their customers. Accordingly, the equipment described in the solar energy systems statute that is considered to have no value and add no value is different than the equipment described in the electric generation and renewable energy equipment valuation statutes that is valued at 20% of the depreciated costs. Because of their difference, the two kinds of property may be properly taxed differently. Thus, the tax court erred by concluding that the solar energy systems statute unconstitutionally violates the Uniformity Clause. ¶38 In addition, the tax court erred by finding that the solar energy systems statute violated the Uniformity Clause because it would apply differently to taxpayers based on how much electricity the customer actually used. As Taxpayers note, the tax court’s hypothetical examples of houses with identical solar panels illustrated that the court misread and misapplied the solar energy systems statute. The statute’s plain language states that it applies to systems designed primarily for on-site consumption. Whether the buildings on which the panels are installed actually consume less than 126% of the electricity produced (consistent with the industry’s standard for when a device is for “primarily” on-site consumption) is not a consideration that the statute requires. So long as the panels were designed to be used primarily for on-site consumption and otherwise meet the requirements set out in the solar energy systems statute, the statute applies regardless of actual usage. But following the tax court’s logic, the zero-value could apply to solar panels on any one home one month if the energy generated by the solar panels was used by the consumer, but not the following month if its electricity consumption declined during that time. This would be an absurd result. See Raby, 204 Ariz. at 511 ¶ 15, 65 P.3d at 460 (stating that the courts consider statutes as a whole and attempt to give them a fair and sensible meaning while avoiding a construction that produces an absurd result). The tax court’s interpretation is therefore incorrect. ¶39 Thus, because the statute applies to all rooftop solar energy systems uniformly and does not treat similar property differently, the solar energy systems statute is not unconstitutional. Accordingly, the tax court erred and we reverse its judgment holding that the solar energy systems statute violates the Exemptions and Uniformity Clauses of the Arizona Constitution. 3. Local Assessment ¶40 Taxpayers next argue that the tax court erred by holding that counties must locally assess the solar panels pursuant to A.R.S. § 42-13051(A). In Arizona, taxable property is assessed at its full cash value. A.R.S. § 42-11001(5). A property’s “full cash value” is the value determined by statute, or in the absence of a statutory valuation method, the estimate of the value that is derived annually by using standard appraisal methods and techniques. London Bridge Resort, Inc. v. Mohave Cty., 200 Ariz. 462, 464 ¶ 6, 27 P.3d 819, 821 (App. 2001). Here, the solar energy systems statute mandates that “the Department shall” prescribe the guidelines for applying standard appraisal methods and techniques. The statute further requires that in applying those methods and techniques, grid-tied photovoltaic systems, as described in subsection (C)(2), shall be considered to have no value and add no value. Thus, the statute provides a method for the Department, not the counties, to value the solar panels. Because the solar energy systems statute is constitutional and applies, the tax court erred by holding that the panels should be locally assessed. 4, Sanctions and Attorneys’ Fees ¶41 The Department argues finally that the tax court erred by denying its motion for sanctions against Taxpayers. Taxpayers argue that the tax court abused its discretion by holding that they did not prevail and by declining to award their attorneys’ fees, We review the court’s denial of attorneys’ fees for an abuse of discretion. Hormel v. Maricopa Cty., 224 Ariz. 454, 461 ¶ 27, 232 P.3d 768, 776 (App. 2010). But we review de novo the tax court’s denial of sanctions pursuant to A.R.S. § 12-349. Id. In doing so, we review the tax court’s findings of fact under a clearly erroneous standard but review its application of the statute de novo. City of Casa Grande v. Ariz. Water Co., 199 Ariz. 547, 555 ¶ 27, 20 P.3d 590, 598 (App. 2001). The tax court did not err by denying the Department’s motion for sanctions and fees under A.R.S. § 12-349, but did abuse its discretion by denying Taxpayers’ request for fees. ¶ 42 As relevant here, A.R.S. § 12-349 requires a court to impose reasonable attorneys’ fees and expenses against a party or attorney under two circumstances: first, if the party or attorney unreasonably expands or delays the proceeding; second, if the party or attorney engages in abuse of discovery. A.R.S. § 12-349(A)(3) and (4). A court may also award fees and other expenses under A.R.S. § 12-348(B)(1) to a party that prevails in an action against the State challenging the assessment of taxes. A party prevails for purposes of this statute if the party prevails by an adjudication on the merits. Corley v. Ariz. Bd. of Pardons & Paroles, 160 Ariz. 611, 613, 775 P.2d 539, 541 (App. 1989). ¶ 43 Here, the tax court’s factual findings in denying the Department’s motion for sanctions and fees under A.R.S. § 12-349 support its judgment and were not clearly erroneous. The parties had engaged in discovery disputes for nearly the entire duration of the litigation in the tax court. In that time, the parties had met and conferred, and largely resolved most of the disputes. The tax court intervened on matters not resolved— including the Department’s insistence that Taxpayers possessed unknown documents that would be helpful to it, and setting multiple depositions of many representatives. After these depositions, the Department continued to request additional time for discovery and additional documents, arguing that the information received from Taxpayers was inadequate. The Department failed, however, to sufficiently describe how Taxpayers’ responses to the discovery requests were inadequate. Further, both parties remained adamant in their positions throughout regarding whether discovery was necessary given the nature of the suit, issues presented, and relief sought. Under these facts, the parties clearly did not act unreasonably or abusively, but instead strongly advocated for their adverse positions. None of these factual findings were clearly erroneous, and the tax court did not err by denying the Department’s motion. ¶44 The tax court did, however, abuse its discretion by failing to grant Taxpayers’ fees and expenses pursuant to A.R.S. § 12-348(B)(1). Taxpayers’ complaint specifically sought a declaration that the solar energy systems statute applies to them solar panels and therefore their property is not subject to separate valuation or assessment by the Department. The complaint also sought a declaration that the renewable energy equipment valuation statute does not apply to or authorize the Department to centrally assess the solar panels. Although the tax court correctly found that the renewable energy equipment valuation statute did not apply to Taxpayers’ solar panels, it incorrectly held that the solar energy systems statute is unconstitutional. Had the court correctly found that the statute was constitutional, Taxpayers would have prevailed on all matters by an adjudication on the merits, and therefore would have been entitled to fees. In addition, this lawsuit challenged the State’s assessment of taxes, which Taxpayers have prevailed on by adjudication of the merits. Taxpayers are therefore entitled to fees under A.R.S. § 12-848(B)(1) and the tax court erred by denying Taxpayers’ request. Accordingly, we reverse the tax court’s judgment denying fees and remand for proceedings consistent with this opinion. 5. Attorneys’ Fees on Appeal ¶ 45 Taxpayers request attorneys’ fees on appeal pursuant to A.R.S. § 12-348(B). In our discretion, we grant them reasonable attorneys’ fees in an amount to be determined upon compliance with Arizona Rule of Civil Appellate Procedure 21. CONCLUSION ¶ 46 For the foregoing reasons, we affirm the tax court’s declaration that Taxpayers’ solar panels cannot be centrally assessed pursuant to the electric generation statute and the renewable energy equipment valuation statute. We also affirm the tax court’s denial of the Department’s motion for sanctions against Taxpayers. However, we reverse the tax court’s judgment that the solar energy systems statute is unconstitutional and cannot apply to Taxpayers’ solar panels, as well as the court’s mandate that the counties locally assess the panels. We also reverse the tax court’s denial of Taxpayers’ request for attorneys’ fees and remand for proceedings consistent with this opinion. . After oral argument in this case and while this opinion was pending, the Arizona Corporation Commission replaced net-metering with a new methodology for determining the rates at which the customer is credited. See Arizona Corp. Comm’n, Commission Passes Historic Decision to Protect Solar Interests and Provide Equity for all Customers, available at http://www.azcc.gov/ Divisions/Administration/news/2016Releases/12-21-2016% 20Value% 20and% 20Cost% 20of% 20Solar%20decision.pdf (last visited May 16, 2017). . Taxpayers separately filed protective valuation appeals for the Department's valuations for the 2015 tax year. After completing briefing on appeal, Taxpayers jointly requested that this Court take judicial notice of Taxpayers' additional appeals relating to the Department’s valuations of their properties for the 2016 and 2017 tax years. We grant their requests. . The Department concedes that the tax court "went too far in making the blanket holding” that the statute is unconstitutional. Instead, the Department supports the trial court's ruling only as it applied to Taxpayers’ leased panels, not to solar panels owned by homeowners.

OPINION HOWARD, Presiding Judge: ¶ 1 Following a jury trial, Fuller Smith was convicted of two counts of molestation of a child and two counts of sexual conduct with a minor under fifteen. On appeal, Smith argues a DNA expert’s testimony as to the results of a saliva test violated his Confrontation Clause rights, the trial court violated his due process rights by denying Ms motion to dismiss with prejudice after two previous trials resulted in mistrials, and that insufficient evidence supported the jury’s verdicts. Because Smith’s Confrontation Clause rights were violated, we vacate Smith’s convictions and sentences and remand. Factual and Procedural Background ¶ 2 We view the evidence in the light most favorable to upholding the jury’s verdicts. State v. Mangum, 214 Ariz. 165, ¶ 8, 160 P.3d 252, 253 (App. 2007). N.S. is Smith’s granddaughter and was eight years old at the time of these incidents. In October 2011, she was staying at Ms house and, after she went to bed, Smith removed her pants and underwear, rubbed her genitals with his fingers, and licked her genitals, He then put her pants and underwear back on and left the room. Although N.S. was awake during this encounter, she pretended to be asleep. ¶3 The following afternoon, Smith told N.S. to take a nap even though she did not typically take naps in the afternoon. Shortly thereafter, Smith entered N.S.’s room, removed her pants and underwear, rubbed and licked her gemtals, put her pants and underwear back on and left the room. She again pretended to remain asleep. Approximately two weeks later, N.S. told her parents what Smith had done, Smith’s DNA was found on the inner and outer crotch areas of the un derwear N.S. had been wealing while she stayed at Smith’s house. ¶4 The state charged Smith with two counts each of sexual conduct with a minor under fifteen and molestation of a child under fifteen. During Smith’s first trial, the trial court declared a mistrial after N.S.’s mother testified to other acts of sexual misconduct that Smith had not been charged with and which had been precluded. Smith’s second trial also resulted in a mistrial after the jury was unable to reach a verdict. The jury in Smith’s third trial found him guilty on all four counts as described above. ¶ 5 As to the molestation of a child charges, the trial court sentenced Smith to consecutive terns totaling twenty years. On each of the sexual conduct with a minor charges, the court sentenced Smith to a term of life imprisonment without the possibility of release for thirty-five years, to be run consecutively to each other and the molestation charges. We have jurisdiction over Smith’s timely appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4088(A)(1), Confrontation Clause ¶ 6 Smith argues the trial court erred by refusing to preclude a portion of the state’s DNA expert’s testimony because it violated his Confrontation Clause rights under the United States and Arizona constitutions. U.S. Const, amend. VI; Ariz. Const, art. II, § 24. “[W]e review de novo challenges to admissibility based on the Confrontation Clause.” State v. Bennett, 216 Ariz. 16, ¶ 4, 162 P.3d 664, 666 (App. 2007). ¶ 7 At trial, the state introduced the testimony and written reports of DNA analyst Brianna Smalling. Smith contends the portion of her report and testimony involving the “RSID saliva test,” which her laboratory conducted on a portion of N.S.’s underwear, was impermissible testimonial hearsay. The test indicates the presence of alpha amylase, which is a protein found in certain bodily fluids, including saliva. Kim Lang, another technician at the same laboratory, conducted the saliva test on the inner and outer crotch areas of N.S.’s underwear and submitted the results to Smalling. Smalling included those results in her report, but did not participate in the testing and did not conduct any independent analysis of the results. ¶ 8 The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI; see also Ariz. Const, art. II, § 24 (“In criminal prosecutions, the accused shall have the right ... to meet the witnesses against him face to face....”). “[Testimonial hearsay,” although not the sole concern of the Confrontation Clause, is nonetheless its “primary object.” Cranford v. Washington, 541 U.S. 36, 53, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Testimonial hearsay is “out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct” and which involves “formalized statements such as affidavits, depositions, prior testimony, or confessions.” Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221, 2242, 183 L.Ed.2d 89 (2012). Documents “created solely for an ‘evi-dentiary purpose’ .,, made in the aid of a police investigation, rank[] as testimonial.” Bullcoming v. New Mexico, 564 U.S. 647, 664, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). ¶ 9 In Bullcoming, the Court discussed the type of forensic evidence that falls within the Confrontation Clause purview. In that case, the state had introduced a forensic report certifying the defendant’s blood-alcohol concentration “through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.” 564 U.S. at 651-52, 131 S.Ct. 2705. The Court found such “surrogate testimony” violated the Confrontation Clause, and the defendant had a right to confront the scientist who had conducted the test and authored the report. Id. at 652, 131 S.Ct. 2705. ¶ 10 We agree with Smith that this case is analogous to Bullcoming and that Smalling acted only as a “conduit for another non-testifying expert’s opinion.” State v. Gomez, 226 Ariz. 166, ¶ 22, 244 P.3d 1163, 1168 (2010), quoting State v. Snelling, 226 Ariz. 182, ¶ 19, 236 P.3d 409, 414 (2010). Like the testifying expert in Bullcoming, Smalling “played no role in producing the [test results,] ... did not observe any portion of [Lang’s] conduct of the testing” and did not offer an “independent, expert opinion about” whether alpha amylase was found on N.S.’s underwear. 664 U.S. at 673, 131 S.Ct. 2705 (Sotomayor, J., concurring). ¶ 11 Additionally, the Pima County Sheriffs office provided the underwear to the laboratory, informed them of the factual basis of N.S.’s allegations, and requested the saliva test. The laboratory thus was aware the testing was being used “solely for an ‘evidentiary purpose’ ... made in aid of a police investigation.” Bullcoming, 664 U.S. at 664, 131 S.Ct. 2705, quoting Melendez-Diaz, 557 U.S. at 311, 129 S.Ct. 2527. ¶ 12 Finally, the saliva test results were offered for the truth of the matter asserted: that saliva had been found on N.S.’s underwear. But they were introduced through the testimony of an expert who did not participate in the testing or come to any independent conclusion about the results. Lang, as the technician who conducted the test and generated the result, was the witness Smith had the right to confront at trial under the Sixth Amendment. Melendez-Diaz, 557 U.S. at 311, 129 S.Ct. 2527. ¶ 13 At oral argument, the state conceded the saliva test was a separate process from the creation of the DNA profiles used by Smalling to compare Smith’s DNA with that found on N.S.’s underwear. Smalling did not reach any independent conclusions as to whether saliva was found on N.S.’s underwear. Thus, while “[t]he DNA profiles had no evidentiary value until they were compared and matched by” Smalling, the saliva test result’s evidentiary impact arose once the test was completed by Lang. State v. Ortiz, 238 Ariz. 329, ¶ 59, 360 P.3d 125, 138 (App. 2015). By relying on Smalling to relay Lang’s test results, the state violated Smith’s Sixth Amendment right to confront the witnesses against him. ¶ 14 Having determined that Small-ing’s testimony violated Smith’s Confrontation Clause rights, we next turn to whether the error was harmless. State v. Bass, 198 Ariz. 571, ¶ 39, 12 P.3d 796, 805 (2000). The state bears “the burden of convincing us that error is harmless.” State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). We must be satisfied beyond a reasonable doubt that the erroneously admitted evidence “had no influence on the jury’s judgment.” Id, “The inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” State v. Valverde, 220 Ariz. 582, ¶ 11, 208 P.3d 233, 236 (2009), quoting State v. Anthony, 218 Ariz. 439, ¶ 39, 189 P.3d 366, 373 (2008). ¶ 15 The state attempts to downplay the impact of the evidence, arguing that any error in admitting the test results was harmless because the “results alone do not in any way connect the presence of’ alpha amylase to Smith and the jury was told the result could also indicate the presence of other substances such as feces or mine. It points out that “one would expect a child’s dirty underwear to have traces of ... feces on them, and produce a positive test result, especially, when, as here, the pediatric forensic nurse testified that [N.S.] had hygiene problems.” ¶ 16 But the prosecution made the saliva test results an important part of its presen tation below, while minimizing the test’s limitations. The first page of Smalling’s initial reports lists the three areas of N.S.’s underwear her laboratory was asked to test: the outer crotch area, the inner crotch area, and the waistband. The first sentence under the headings for the inner and outer crotch areas reads, “The testing for saliva was positive.” The following page, under the “Notes” heading, reads “[hjuman salivary a-amylase, a constituent of human saliva, can also be found in ... feces and breast milk ... [and this] must be considered when interpreting RSID®-Saliva results.” Notably, neither the term “a-amylase” or “RSID®-Saliva” appear on the first page of the report. The report, on its own, does not clearly inform the jury that the statement, “The testing was positive for saliva” in fact meant the testing was positive for alpha amylase and not necessarily saliva. ¶ 17 Smalling’s testimony was similarly imprecise. She continually stated the tests on the inner and outer crotch area were positive for “saliva,” and described the test as one for “a protein inside your saliva that breaks down starches.” When asked whether technicians could identify the source of the DNA profiles, she replied they could not but “[t]he fact that we got a positive saliva result is a good indication.” Furthermore, although she explained that “feces and breast milk can cause a positive result in the test,” both Smalling and the attorneys referred to it as a “saliva test” multiple times throughout her testimony. Her testimony thus left the overwhelming impression her laboratory had found saliva on N.S.’s underwear. ¶ 18 Additionally, the state introduced, but did not admit into evidence, a report during its cross-examination of Smith’s DNA expert purporting to show the saliva test showed positive only in the presence of saliva, breast milk, or the fecal matter of a baby who had fed on breast milk. By actively disputing that expert’s opinion on the interpretation of the test results, the state demonstrated it had a strong belief as to what the test results showed and it wished the jury to believe the same. This also served to reinforce the impression left by the report and Smalling’s testimony that the test did, in fact, show that saliva was found on N.S.’s underwear. ¶ 19 During closing arguments, Smith contended that his DNA could have gotten onto the victim’s underwear in any number of innocent ways and pointed out the saliva test “comes up positive for other things.” The prosecutor, in his closing and rebuttal arguments, referred to the test results several times as “positive for saliva,” characterized them as a part of “the DNA evidence,” and asked the jury to consider the DNA evidence along with the test results “significant corroborating evidence” of N.S.’s story. Accordingly, the state sought to demonstrate that the test did, in fact, show the presence of saliva, proving Smith had licked the victim, and could not be interpreted in any other reasonable way. ¶20 Contrary to the state’s position on appeal that the test results were essentially meaningless, it assigned great meaning to the results at trial as shown through its efforts to establish they definitively indicated the presence of saliva. Demonstrating that saliva was found on N.S.’s underwear directly supported a disputed fact the state bore the burden of proving: that Smith licked N.S.’s genitals, as alleged in the indictment. See Bass, 198 Ariz. 571, ¶ 40, 12 P.3d at 806. Because Smith’s DNA could have been transferred to the victim’s underwear in innocent ways, the DNA alone did not directly support that inference. The state’s continued emphasis on the test and its results both highlighted those results and exacerbated the effect of their erroneous admission. See Anthony, 218 Ariz. 439, ¶ 40, 189 P.3d at 373 (erroneous introduction of other act evidence not harmless based, in part, on state’s reliance on that evidence); State v. Romero, 240 Ariz. 503, ¶ 20, 381 P.3d 297, 305 (App. 2016) (state’s “emphasis” on improper evidence proper consideration in harmless error analysis if it “exacerbate[s] the error”). Furthermore, we note that the prior hung jury favored acquittal 9-3, which suggests the remaining evidence was not sufficiently “overwhelming” to ensure a guilty verdict. See Romero, 240 Ariz. 603, ¶ 13, 381 P.3d at 303. ¶21 We emphasize the state, not Smith, bears the burden of showing the error was harmless beyond a reasonable doubt. See Bible, 175 Ariz. at 588, 858 P.2d at 1191; see also Anthony, 218 Ariz. 439, ¶ 41, 189 P.3d at 374 (noting difference between sufficiency-of-the-evidence and harmless error review). In light of the “ ‘stringent concepts’ ” surrounding our review, the state has not met its burden of demonstrating the jury verdicts were “surely unattributable” to its emphasis of and reliance on the improperly admitted saliva test results. Anthony, 218 Ariz. 439, ¶¶ 39, 42, 189 P.3d at 373, quoting Bible, 175 Ariz. at 588, 858 P.2d at 1191. Due Process Violation ¶ 22 Smith additionally argues the trial court’s denial of his motion to dismiss his prosecution violated his due process rights. He contends that, relying on State v. Huffman, 222 Ariz. 416, 216 P.3d 390 (App. 2009), the court did not consider the proper factors in making its ruling and thus abused its discretion. We review a court’s denial of a motion to dismiss criminal charges for an abuse of discretion. Mangum, 214 Ariz. 165, ¶ 6, 150 P.3d at 254. A court abuses its discretion if it “misapplies the law or exercises its discretion based on incorrect legal principles.” State v. Slover, 220 Ariz. 239, ¶ 4, 204 P.3d 1088, 1091 (App. 2009). ¶ 23 Before his third trial, Smith moved to dismiss the charges against him with prejudice based on due process grounds. He contended the third trial would likely result in a hung jury, and pointed to the fact that it was the state’s witness that caused the first mistrial, the hung jury favored acquittal 9-3, and the trials had put considerable emotional and financial stress on Smith. The trial court denied the motion, noting that “in only one of the two previous trials was the case submitted to a jury” and “[t]he mistrial in the first tidal occurred on the second day of trial.” ¶ 24 In considering a motion to dismiss under these circumstances, the trial court must consider “the relevant competing interests of the defendant and the state in light of the particular circumstances of each case.” Huffman, 222 Ariz. 416, ¶ 16, 215 P.3d at 396. This balancing test “is wholly consistent with and satisfies due process requirements,” Id, ¶ 12. The court is granted broad discretion in its ruling because it has a “more immediate grasp of all the facts of the case” and ability to observe the parties, lawyers and witnesses. Id. ¶ 18, quoting State v. Winegar, 147 Ariz. 440, 445, 711 P.2d 579, 584 (1985). This court will presume that a trial court considered the relevant interests unless its decision is “manifestly unreasonable or exercised on untenable grounds or for untenable reasons.” Id., quoting State v. Sandoval, 175 Ariz. 343, 347, 857 P.2d 395, 399 (App. 1993). ¶ 25 The trial court in this case presided over both of Smith’s previous trials. It was thus familiar with the factual and procedural background, the parties, lawyers, witnesses, and evidence. As it noted, only one of Smith’s previous trials had resulted in a hung jury and the other was declared a mistrial on the second day of an expected six-day trial. Considering the “seriousness and circumstances” of Smith’s alleged offenses—sexual contact and molestation of his eight-year-old granddaughter—and resulting harm, the court could reasonably conclude the state’s interest in the prosecution outweighed the emotional and financial burden the successive trials placed on Smith. Id. ¶ 14, quoting State v. Same, 164 Vt. 134, 666 A.2d 1164, 1168 (1995). ¶26 Additionally, when there has been only one trial that reached the jury, during which the trial court denied the defendant’s motion for judgment of acquittal based on sufficiency of the evidence, “there is a reasonable possibility of conviction upon a second trial.” Same, 666 A2d at 1170. We cannot say the court abused its discretion in denying Smith’s motion to dismiss with prejudice following only one hung jury. See id. (abuse of discretion to dismiss following “only one trial” in light of “the seriousness of the charged offense, the absence of any pros-ecutorial misconduct, and the lack of any showing of prejudice that would result to defendant from retrial”); cf. Huffman, 222 Ariz. 416, ¶¶ 1, 18, 215 P.3d at 392, 397 (denial of motion to dismiss with prejudice following two hung juries not abuse of discretion); State v. Moriwake, 65 Haw. 47, 647 P.2d 705, 713 (1982) (dismissal with prejudice not abuse of discretion after two hung juries following “two full, nearly identical trials”); State v. Witt, 572 S.W.2d 913, 917 (Term. 1978) (prejudicial dismissal appropriate only where “repeated trials, free of prejudicial error, have resulted in genuinely deadlocked juries ... and that probability of continued hung juries is great”). ¶ 27 Smith also argues the trial court was required to address explicitly certain non-exclusive factors listed in Huffman in its ruling and its failure to do so constitutes legal error. 222 Ariz. 416, ¶ 14, 215 P.3d at 395-96; see also Slover, 220 Ariz, 239, ¶ 4, 204 P.3d at 1091. The court, however, is not required to state its reasons for denying a motion to dismiss on the record. Huffman, 222 Ariz. 416, ¶ 18, 215 P.3d at 397. Smith presented the court with his reasons and legal authority for seeking the dismissal and we presume the court, being familiar with “the particular circumstances of [the] case” and, as Smith acknowledges, “intimately familiar” with the factors listed in Huffman, considered the necessary interests and concluded the prosecution was not unfair. See id. ¶ 16, We reject Smith’s argument on this point, Sufficiency of the Evidence ¶28 Smith additionally argues the trial court erred in denying his motion for judgment of acquittal made pursuant to Rule 20, Ariz. R. Crim. P., because insufficient evidence supported the jury’s verdicts. “We review the denial of a Rule 20 motion de novo.” State v. Tucker, 231 Ariz. 126, ¶ 27, 290 P.3d 1248, 1261 (App. 2012). ¶ 29 In our review, we view the evidence in the light most favorable to affirming the jury’s verdicts and “will reverse only if there is a complete absence of ‘substantial evidence’ to support the conviction.” State v. Ramsey, 211 Ariz. 629, ¶ 40, 124 P.3d 756, 769 (App. 2005), quoting State v. Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113 (App. 1996). Substantial evidence is evidence that reasonable jurors “could accept as sufficient to support a guilty verdict beyond a reasonable doubt.” State v. Davolt, 207 Ariz. 191, ¶ 87, 84 P.3d 456, 477 (2004). We consider evidence substantial if reasonable persons could differ on whether it establishes a fact in issue. Id. ¶ 30 In order to show Smith molested N.S,, the state was required to show, as relevant here, he “intentionally or knowingly” engaged in “direct or indirect touching, fondling or manipulation] of any part of the genitals.” A.R.S. §§ 13-1410, 13-1401(A)(3). On the sexual conduct with a minor charge, the state had to show Smith “intentionally or knowingly engag[ed] in ... oral sexual contact” with N.S. A.R.S. § 13-1405(A), ¶ 31 At trial, N.S. testified that while she was pretending to sleep, on two separate occasions, Smith removed her pants and underwear, rubbed her genitals with his fingers and licked her genitals. Smith’s DNA was found on the inner and outer crotch areas of the underwear N.S. was wearing at that time. Based on this evidence, we cannot say there was “no substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a); see also State v. Schlenker, 26 Ariz.App. 401, 403-04, 549 P.2d 181, 183-84 (1976) (conviction for child molestation may be upheld even if based on the uncorroborated testimony of the victim “unless her stray is physically impossible or so incredible that no reasonable [person] could believe it”). The trial court therefore did not err in denying Smith’s Rule 20 motion. ¶ 32 Smith argues, however, he presented sufficient evidence to show that “N.S.’s accusations were untrue [and] that [N.S.’s mother] was overly sensitive about the possibility of her children being molested.” This testimony, however, does not render the state’s evidence insufficient to support the jury’s verdict. Even were the jury to believe that N.S.’s mother was “overly sensitive,” that do not negate N.S.’s testimony as to what happened. Smith has not pointed to anything in the record that would show N.S.’s story was “physically impossible or so incredible that no reasonable [person] could believe it.” See Schlenker, 26 Ariz.App. at 403-04, 549 P.2d at 183-84. ¶ 33 Smith also points to contradictions in N.S.’s testimony as to the exact times the incidents occurred and whether she attempted to wake her brother up during the nighttime incident. He also relies on contradictions between N.S. and her parents as to whether they had asked her about oral contact before she divulged that information to the forensic interviewer as evidence “that N.S.’s ‘accusations’ actually stemmed from her parents’ suggestive questioning.” However, “inconsistencies in witness testimony go not to the admissibility of testimony, but rather to the credibility of the witnesses and the weight to be accorded to the evidence, which are issues for the jury to resolve.” State v. Rivera, 210 Ariz. 188, ¶ 20, 109 P.3d 83, 87 (2005). ¶ 34 Smith also argues the most reasonable inference to draw from the saliva test results is that the test detected the presence of fecal matter and not saliva. Even without the saliva test, however, the state presented sufficient evidence to support the jury’s verdicts. See Schlenker, 26 Ariz.App. at 403-04, 549 P.2d at 183-84. And although he argues there are “innocent explanations” for why Smith’s DNA was found on N.S.’s underwear, “the State is not required to disprove ‘every conceivable hypothesis of innocence when guilt has been established by circumstantial evidence.’” State v. Fischer, 219 Ariz. 408, ¶ 43, 199 P.3d 663, 674 (App. 2008), quoting State v. Nash, 143 Ariz. 392, 404, 694 P.2d 222, 234 (1985). We cannot say the trial court erred in denying Smith’s motion. Disposition ¶35 We vacate Smith’s convictions and sentences and remand the case for a new trial. . Deoxyribonucleic acid. . Although the test shows the presence of alpha amylase and not definitively saliva, we refer to it as lie "saliva test” because that is how the parties and witnesses referred to it below. . In its opening brief, the state argued tire saliva test results fell within an exception to traditional hearsay rules, which allow an expert to “testify to otherwise inadmissible evidence, including the substance of a non-testifying expert's analysis, if such evidence forms the basis of the expert’s opinion and is reasonably relied upon by experts in the field." State ex rel. Montgomery v. Karp, 236 Ariz. 120, ¶ 13, 336 P.3d 753, 757 (App. 2014); see also Williams, 567 U.S. at 56, 72, 132 S.Ct. at 2227, 2236 (no Confrontation Clause violation where testifying analyst relies upon DNA profile generated by third-party of which she lacked personal knowledge of testing procedures to conclude profile matched defendant); State v. Joseph, 230 Ariz. 296, ¶¶ 8, 10, 283 P.3d 27, 29 (2012); State v. Gomez, 226 Ariz. 165, ¶¶ 22-23, 244 P.3d 1163, 1167-68 (2010). . At trial, Smalling testified that after she had written this report, her laboratory concluded the saliva test could not, in fact, indicate the presence of urine. . We do not mean to suggest that Smalling intentionally misled the jury on the meaning of the saliva test results. She stated her laboratory’s protocol was to use the term "saliva" in reference to the test results. Indeed, the test itself uses "saliva” in the name. That testimony, however, only further served to strengthen the state’s contention that the positive test results did indicate the presence of saliva. . At oral argument, the parties discussed whether this court should vacate all of Smith’s convictions, when the saliva test results were only necessary to prove the two sexual conduct with a minor charges since those were based on oral contact. The state conceded, however, that because the acts of rubbing and licking N.S.'s genitals occurred within moments of each other on each occasion, and the presentation of the evidence interwove the events below, if we vacated the sexual conduct convictions, then vacating all four counts was appropriate. . If Smith prevails on this claim, the state would be precluded from retrying him. See Humble v. Superior Court, 179 Ariz. 409, 416-17, 880 P.2d 629, 636-37 (App. 1993). Thus, we address this issue despite already concluding the Confrontation Clause violation was not harmless and vacating Smith’s convictions and sentences on that ground. .The state argues that because Smith did not file a special action after the denial of his motion to dismiss, he has waived the issue on appeal. For the same reasons expressed in State v. Felix, 214 Ariz. 110, ¶¶ 8, 10, 149 P.3d 488, 489-90 (App. 2006), in which we found that a defendant's failure to request special action review on a double jeopardy claim does not preclude his ability to raise that claim on review, we reject the state's contention here. . The state did not file a response to Smith's motion to dismiss. Smith contends that failure requires us to remand this ease to the trial court because the proper procedure was not followed, relying on our statement in Huffman that we believed the "appropriate procedure for motions to dismiss due to successive prosecutions after hung juries” is that "the state should file a response detailing the circumstances it believes establish that a successive trial is in the interests of justice.” 222 Ariz. 416, n.6, 215 P.3d at 397 n.6. First, we note there had been only one hung jury, unlike the situation in Huffman. Id. ¶ 1. Second, although that may be the preferred procedure, the state is not required to file a response under the rules of procedure and Smith has not explained why the court in this case was unable to independently consider whether a successive trial after one hung jury was in the interests of justice. See Ariz. R. Crim. P. 16.6. We thus reject Smith’s argument on this issue. . Although we have concluded the Confrontation Clause violation in this case was not harmless beyond a reasonable doubt, we address Smith’s claim that insufficient evidence supported his convictions because were we to find the evidence was insufficient, the prohibition against double jeopardy would bar the state from retrying Smith. State v. Tucker, 231 Ariz, 125, ¶ 25, 290 P.3d 1248, 1260-61 (App. 2012); Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). . Because we are vacating Smith's convictions and sentences and remanding for a new trial, we do not address Smith's other claims on appeal.

OPINION THOMPSON, Judge: ¶ 1 This consolidated special action concerns bail in sexual assault cases following Simpson v. Miller (Simpson II), 241 Ariz. 341, 387 P.3d 1270 (2017). The state argues that trial courts are erroneously holding bail hearings for individual defendants charged with sexual assault. It asserts that no hearing is required for a determination of future dangerousness. The real parties in interest assert Simpson II requires a finding of individualized dangerousness for each defendant before denying bail. Because this issue is important and the potential threat to the community great, we have, in a previously entered order, accepted jurisdiction and granted the state relief. Sexual assault remains a non-bailable offense. JURISDICTION ¶ 2 Special action jurisdiction is available when there is no other equally plain, speedy or adequate remedy by appeal. Ariz. R. Spec. Act. 1(a). Another critical factor is whether the case presents an issue of statewide importance affecting numerous cases. Lind v. Sup. Ct., 191 Ariz. 233, 236, ¶ 10, 954 P.2d 1058, 1061 (App. 1998). The issue presented here is of statewide importance, is likely to recur numerous times, and is an issue of first impression following Simpson II. There is no remedy by appeal. For these reasons, we accepted special action jurisdiction. PROCEDURAL AND FACTUAL BACKGROUND ¶3 On February 9, 2017, our supreme court issued Simpson II. On February 13, 2017, the Maricopa County superior court issued a “Protocol for Setting Simpson v. Miller Review Hearings.” That protocol stated of Simpson II: In summary, the ruling held unconstitutional the portion of A.R.S. 13~3961(A) [2010] that allowed a defendant charged with Sexual Assault, Sexual Conduct with a Minor under 15, or Molestation of a Child under 15 to be held without bond if the Court has only made a “proof evident and presumption great” finding. The ruling held that in addition to a finding of proof evident and presumption great, the State must prove by clear and convincing evidence (at a “full blown adversary hearing”) that no condition or combination of conditions of release may be imposed that will reasonably assure that the safety of the other person or community (per A.R.S. § 13-3961(D) [2010]). ¶ 4 Goodman and Henderson were each charged with one count of sexual assault under Arizona Revised Statutes (A.R.S.) § 13-1406 (2010), a class 2 felony. In both cases, the superior court held an evidentiary hearing to determine whether the defendant could properly be held without bail under A.R.S. § 13-3961(D). In both cases, the superior court found proof evident and presumption great that the defendants committed sexual assault. However, because the court found that the state did not prove by clear and convincing evidence that the defendants were an ongoing danger to the community or to the victim, both defendants were held to be bailable. Defendant Goodman was allowed a $70,000 secured appearance bond. Defendant Henderson was allowed a $50,000 secured appearance bond. DISCUSSION ¶ 5 In Segura v. Cunanan, this court provided the historical context of bail in this state. Not all defendants are entitled to bail. Since statehood, the Arizona Constitution has provided that all offenses are bailable, “except for capital offenses when the proof is evident or the presumption great.” Ariz. Const. art. 2, § 22 (as quoted in Wiley v. State, 18 Ariz. 239, 158 P. 135 (1916)). Over the years, the list of nonbailable offenses was expanded, and by 2006 included capital offenses, sexual assault, certain crimes against children, offenses committed when the person charged is on bail on a separate felony charge, and felony offenses if the person charged poses a substantial danger to any other person. Ariz. Const, art. 2, § 22. In each case, the standard of proof was that the proof is evident or the presumption great as to the ehax-ge. Id.; see also A.R.S. § 13-3961 (Supp. 2007) (statutory provision supplementing constitution). 219 Ariz. 228, 234, ¶ 24, 196 P.3d 831, 837 (App. 2008) (addressing the availability of bail to persons charged with serious felony offenses and in the country illegally). Section 22(A)(1) of our Constitution now reads that “All persons charged with a crime shall be bailable by sufficient sureties, except: For capital offenses, sexual assault, sexual conduct with a minor under fifteen years of age or molestation of a child under fifteen years of age when the proof is evident or the presumption great.” This case presents questions of law, which we review de novo. US West Commc’ns, Inc. v. Ariz. Corp. Comm’n, 201 Ariz. 242, 244, ¶ 7, 34 P.3d 351, 353 (2001). ¶ 6 In Simpson II, the court examined whether bail was potentially available to Defendant Martinez, who was charged with sexual conduct with a minor under the age of fifteen. The court said: The crime charged against Martinez, however, is not in itself a proxy for dangerousness. Section 13-1405(A) states, “A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.” Section 13-1405(13) classifies felonies for sexual conduct with a minor under age fifteen but does not alter the definition of the crime. The crime can be committed by a person of any age, and may be consensual. Hence, as the court of appeals noted, Simpson [v. Miller], 240 Ariz. [208] at 215[,] ¶ 20, 377 P.3d [1003] at 1010 [ (2016) ], the offense sweeps in situations where teenagers engage in consensual sex. In such instances, evident proof or presumption great that the defendant committed the crime would suggest little or nothing about the defendant’s danger to anyone. Cf. A.R.S. § 18-U06 (defining sexual assault as “intentionally or knowingly engaging in sexual intercourse or oral sexual contact ... without consent of such person”). Simpson II, 241 Ariz. at 349, ¶ 27, 387 P.3d at 1278 (emphasis added). The court concluded, as an issue of first impression, that due to the possibility that teenage consensual sex might be charged under the terms of the offense, a blanket prohibition on bail for the crime of sexual conduct with a minor violated due process rights. Id. at ¶ 31. It went on to require that before a denial of bail, in sexual conduct with a minor cases, an individualized determination must be made that the defendant is dangerous even when proof is evident or the presumption great that the defendant committed the crime. Id. ¶ 7 Sexual assault is not a crime like sexual conduct with a minor which could potentially include consensual situations and which, therefore, may involve a defendant who is not a danger to the community. The Court expressed this comparison with a “Cf.” citation. The Bluebook explains the citation signal “Cf.” as “Cited authority supports a proposition different from the main proposition but sufficiently analogous to lend support. Literally, ‘cf.’ means ‘compare.’” The Bluebook: A Uniform System of Citation R. 1.2(a), at 59 (Columbia Law Review Ass’n et al. eds. 20th ed. 2015); see State v. Nixon, 1 CA-CR 16-0391, 242 Ariz. 242, 243, 394 P.3d 667, 2017 WL 1278849, slip op. at *3, ¶ 10 (Ariz. App. April 6, 2017) (same). ¶8 Simpson II used the Cf. citation to highlight the difference between the two offenses. This citation makes sense because A.R.S. § 13-1406(A) reads: “A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person! ]” (emphasis added). Unlike sexual conduct with a minor, lack of consent is an element of the crime of sexual assault. A.R.S. §§ 13-1405 (2010), -1406 (2010). We are bound by our Supreme Court’s analysis in Simpson II and have no authority to overrule or disregard it. See State v. Sullivan, 205 Ariz. 285, 289, ¶ 15, 69 P.3d 1006, 1009 (App. 2003). ¶9 Simpson II held that persons charged with sexual conduct with a minor under fifteen years of age are entitled to a hearing as to dangerousness. Sexual assault remains a non-bailable offense. Where proof is evident or the presumption is great that a defendant committed sexual assault, the non-consensual nature of the crime fulfills the requirement for finding inherent dangerousness. No section 13-3961(D) hearing need be held. CONCLUSION ¶ 10 For the above stated reasons, the state is granted relief.

OPINION MILLER, Judge: ¶ 1 After a jury trial, Anthony Lito Hernandez was convicted of transportation of methamphetamine for sale, possession of marijuana, and possession of drug paraphernalia, and sentenced to a combined prison term of eleven years. On appeal, he challenges the trial court’s denial of his motion to suppress evidence. Resolving this issue requires us to determine whether law enforcement officers attempting to complete an investigatory stop for a civil traffic violation were required to obtain a search warrant before approaching the vehicle after the driver pulled into a private driveway. For the reasons that follow, we conclude Hernandez’s constitutional rights were not violated by the officers approaching the vehicle stopped in the driveway. We therefore affirm the order denying Hernandez’s motion to suppress, and his convictions and sentences. Factual and Procedural Background ¶ 2 “In reviewing a motion to suppress, we consider only the evidence presented at the suppression hearing, viewing it in the light most favorable to sustaining the trial court’s ruling.” State v. Reyes, 238 Ariz. 575, ¶ 2, 364 P.3d 1134, 1135 (App. 2015). On the night of September 11, 2014, Cochise County Sheriffs Deputies Villa and Gilbert, on patrol in Willcox, observed a vehicle make an abrupt stop and then an immediate turn. The officers followed as the vehicle made a series of turns at various intersections in a random zigzag pattern. When they were able to get close enough, they ran a license plate check on the car, which “indicated that there had been an insurance cancellation” the previous month. ¶ 3 The deputies had to catch up with the car to initiate a traffic stop regarding the insurance cancellation. When the patrol car closed within two to three car lengths of the vehicle, they activated their emergency lights. Shortly thereafter, the vehicle turned onto a private driveway, not stopping, and proceeded into the backyard area of the residence. The deputies did not know if Hernandez had any connection to the property and were not concerned about the home ownership because “we were trying to make a traffic stop of the vehicle.” Deputy Villa explained that he followed Hernandez’s car onto the property “[bjecause that’s where the vehicle took us when we attempted to stop it.” He did not believe there would be any danger to the public, to himself, or to any other law enforcement officers if he did not make immediate contact with the car. Neither did Deputy Villa “give any thought at all to getting a warrant to search the vehicle.” ¶ 4 Deputy Gilbert was asked whether he “fe[lt] that immediate contact was necessary with the operator of the motor vehicle to prevent any harm to the community,” and he thought “there was.” He stated, “I fe[lt] based on previous training and experience, he is deciding to run, has decided to run or is already going to and that immediate contact needs to be made.” ¶ 5 As Deputy Villa attempted to call in the stop on his cell phone rather than the radio because of transmission difficulties, Deputy Gilbert approached the vehicle. Hernandez had already begun to get out and was directed to remain inside. Deputy Gilbert walked toward the car and smelled marijuana. He then ordered Hernandez to step out and place his hands behind his back, after which Deputy Gilbert handcuffed Hernandez and checked him for weapons. During the pat-down, he found a large, folded stack of paper currency and an empty plastic baggie in one of Hernandez’s pockets. In other pockets, Deputy Gilbert found a wallet and two “stack[s] of folded United States currency of various denominations.” Altogether, Hernandez was carrying over $2,400. The search of Hernandez’s car revealed a burned marijuana cigarette, a metal spoon with char marks on the bottom and “a burned substance in it,” and a clear plastic baggie containing suspected methamphetamine. ¶ 6 Hernandez initially denied knowing the identity or ownership of the residence where he stopped. It was later determined that the residence was occupied by Hernandez’s girlfriend. ¶ 7 Hernandez was arrested and indicted on various drug offenses. He moved to suppress the evidence seized by the deputies and the trial court held an evidentiary hearing, also requesting supplemental memoranda. At a pretrial conference, the court denied the motion, stating in part: Mr. Hernandez was within the curtilage of his girlfriend’s home when he was detained for a civil traffic offense. There was no probable cause or reasonable suspicion that he was engaged in any criminal activity, prior to his detention.... Mr. Hernandez clearly was an invitee ... and he had a reasonable expectation of privacy within the curtilage of the home.... [Bjased upon the evidence, the Court does find that the pursuit began in public, and then it went into the backyard which is clearly curtilage, but it’s not in the home. I know there are cases that indicate, well, if it’s curtilage, it should be viewed just like the home, but this circumstance is a little bit different. It’s the girlfriend’s home. It’s in the backyard. It’s not actually through the entryway.... If you look at the entire thing in terms of reasonableness, is it reasonable? Was it reasonable for the officers to follow into the backyard under the circumstances? I guess my answer on that would be that it was, and there was no violation of the [Four]th Amendment that would necessitate suppression. ¶ 8 Challenging only the suppression ruling, Hernandez appeals and we have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1). Discussion ¶9 Hernandez argues the deputies’ entry onto private property without a warrant to complete the investigation of a civil infraction violated his rights under the Fourth Amendment to the United States Constitution and article II, § 8 of the Arizona Constitution. In reviewing a ruling on a motion to suppress for an alleged Fourth Amendment violation, “we defer to the trial court’s factual findings, but we review de novo mixed questions of law and fact and the trial court’s ultimate legal conclusion.” State v. Wyman, 197 Ariz. 10, ¶ 5, 3 P.3d 392, 395 (App. 2000). The state must prove the lawfulness of a search by a preponderance of the evidence. Ariz. R. Crim. P. 16.2(b). ¶ 10 The Fourth Amendment assures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and sei zures.” U.S. Const, amend. IV. Accordingly, law enforcement officers may not enter a person’s home to arrest him or her without an arrest warrant, the consent of the person, or exigent circumstances. Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest). “Mere incantation of the phrase ‘exigent circumstances’” is not sufficient. State v. Martin, 139 Ariz. 466, 474, 679 P.2d 489, 497 (1984), quoting People v. Barndt, 199 Colo. 51, 604 P.2d 1173, 1175 (1980). For instance, where the state has determined that an offense is minor and no imprisonment is possible, officers may not enter the person’s home even when investigating an offense that just occurred. Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (exigent-circumstances exception does not apply where DUI suspect left vehicle and entered his home). Rather, “an objectively reasonable basis must exist for officers to believe that the circumstances justify a warrantless entry.” State v. Wilson, 237 Ariz. 296, ¶ 9, 350 P.3d 800, 802 (2016). ¶ 11 One such exigent circumstance is the “hot pursuit of a fleeing felon.” State v. Love, 123 Ariz. 157, 159, 598 P.2d 976, 978 (1979). Under this exception, “a suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place.” United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); see also State v. Tassler, 159 Ariz. 183, 185, 765 P.2d 1007, 1009 (App. 1988) (once officers formed intent to arrest defendant, “[t]hat arrest could not be defeated by [a] retreat”). Hot pursuit involves “some element of a chase,” Santana, 427 U.S. at 42 n.3, 96 S.Ct. 2406, and “immediate or continuous pursuit ... from the scene of a crime.” Welsh, 466 U.S. at 753, 104 S.Ct. 2091; United States v. Johnson, 256 F.3d 895, 907 (9th Cir. 2001). However, hot pursuit “need not be an extended hue and cry ‘in and about (the) public streets,’” and “[t]he fact that [a] pursuit ,.. ended almost as soon as it began [does] not render it any the less a ‘hot pursuit’ sufficient to justify [a] warrant-less entry,” Santana, 427 U.S. at 43, 96 S.Ct. 2406. ¶ 12 Under the Fourth Amendment, curtilage—“the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life’”—is generally considered part of the home, Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886). “A driveway[, however,] is only a semiprivate area.” State v. Cobb, 115 Ariz. 484, 489, 566 P.2d 285, 290 (1977), quoting United States v. Magana, 512 F.2d 1169, 1171 (9th Cir. 1975); see also State v. Blakley, 226 Ariz. 25, ¶ 7, 243 P.3d 628, 630 (App. 2010) (driveway, although in curtilage, considered semiprivate), For the purposes of our analysis, we accept the trial court’s finding that Hernandez did not enter the house, but was within the curtilage. This fact, however, remains relevant in determining whether the deputies’ actions in following Hernandez’s car into the backyard were reasonable. ¶ 13 Hernandez argues the trial court erroneously relied on Santana when denying his motion to suppress. There, an undercover officer arranged a drug sale with a suspect, who guided the officer to Santana’s house, where the suspect took marked money from the officer, went inside, and returned with several envelopes of heroin. 427 U.S. at 39-40, 96 S.Ct. 2406, The officer arrested the suspect and took her to a police station. Id. at 40, 96 S.Ct. 2406. Several other officers then drove to the house and saw Santana standing in the doorway. Id, The officers identified themselves and Santana retreated into the house, prompting the officers to follow and apprehend her inside. Id. at 40-41, 96 S.Ct. 2406. They found some of the marked money on her person. Id. at 41, 96 S.Ct. 2406. The Court considered “whether [Santana’s] act of retreating into her house could thwart an otherwise proper arrest,” and concluded “it could not” because the officers were engaged in “a true ‘hot pursuit.’ ” Id. at 42, 96 S.Ct. 2406. ¶ 14 While not disputing that the deputies’ pursuit of him began in public, Hernandez argues he did not try to flee or evade the deputies, which he contends are necessary to find that law enforcement was in “hot pursuit.” Furthermore, he maintains Santana only considered scenarios in which “the police possessed probable cause to arrest” a defendant and where the defendant’s actions “created an exigency whereby evidence of a serious crime would have been destroyed had police delayed their pursuit.” He reasons that because the failure to have automobile insurance is a civil infraction and there was no concern evidence would be destroyed by his actions, there was not the predicate probable cause. ¶ 15 The state argues “it is irrelevant that [Hernandez] was not subject to arrest for the civil traffic violation because, by the time [the] deputies followed [Hernandez] into the backyard, they had probable cause to arrest him for a felony offense,” citing A.R.S. § 28-622.01. It posits that an objective viewing of the failure to stop and purposeful turn onto private property “gave the deputies probable cause to arrest him for unlawful flight.” Alternatively, the state suggests Hernandez’s “failure to stop” violated A.R.S. § 28-1595(A). ¶ 16 Section 28-622.01 provides, “A driver of a motor vehicle who willfully flees or attempts to elude a pursuing official law enforcement vehicle ... is guilty of a class 5 felony.” We have interpreted “attempt to elude” to connote “adroit maneuvers[,] quick turns, driving with the lights off, driving where the pursuing vehicle could not follow, or attempting to hide.” State v. Fogarty, 178 Ariz. 170, 172, 871 P.2d 717, 719 (App. 1993). “The term ‘flee’ usually, but not always, connotes speed.” Id. However, “any refusal to stop on command of an officer who is in a police car violates the felony flight statute because of the potential for personal danger inherent in vehicular pursuit, even if that pursuit does not attain excessive speeds or involve reckless driving.” Id. at 171, 871 P.2d at 718. Section 28-1595(A) provides, “The operator of a motor vehicle who knowingly fails or refuses to bring the operator’s motor vehicle to a stop after being given a visual or audible signal or instruction by a peace officer ... is guilty of a class 2 misdemeanor.” ¶ 17 After the deputies had activated their emergency lights, signaling Hernandez that he must stop, he did not stop on the wide shoulder of the road. He turned onto the private driveway and continued driving “to the back side of the residence down the driveway,” where he began exiting the vehicle. Deputy Gilbert exited the patrol car quickly and ordered Hernandez back into his car for officer safety and to prevent him from leaving the area, Although it was a short period between the activation of the lights and Hernandez’s entry onto the driveway, this sequence of events followed several minutes during which the deputies followed Hernandez while he made numerous random turns in what a reasonable observer could have interpreted as an attempt to lose the patrol cai*. At the time Hernandez entered the driveway, the deputies were unaware that he had any connection to the property. Under the totality of the circumstances, a reasonable deputy in that situation could have concluded that Hernandez was attempting to elude him. The deputies had probable cause to believe Hernandez was violating either § 28-622.01 or § 28-1595(A). ¶ 18 Hernandez and the dissent also contend that there were no public safety issues, no concern that Hernandez was attempting to flee and, therefore, no realistic probability of a conviction for flight from an officer. First, Deputy Gilbert clearly stated that he exited and approached the vehicle on his own because he was concerned about both public safety and flight. Second, Hernandez’s analysis adopts facts about the occupants of the home different from what he initially stated, and the true circumstances were only discovered later through investigation. If Hernandez had pulled into a driveway and backyard of a stranger, the concerns of Deputy Gilbert would have had even greater force. Finally, whether Hernandez could have been convicted of flight from law enforcement involves elements far beyond the reasonableness of the deputies’ conduct here. ¶ 19 As previously noted, although in some circumstances “the gravity of the underlying offense” is an important factor in determining whether an exigency exists, Welsh, 466 U.S. at 753, 104 S.Ct. 2091, law enforcement in continuous pursuit of a suspect for investigation of minor offenses may justify a warrantless intrusion into the curti-lage of a constitutionally protected area. See Johnson, 256 F.3d at 908 n.6. ¶ 20 In 2013, the U.S. Supreme Court clarified that it had never laid down “a categorical rule for all cases involving minor offenses, saying only that a warrant is ‘usually’ required.” Stanton v. Sims, — U.S. -, 134 S.Ct. 3, 6, 187 L.Ed.2d 341 (2013) (per cu-riam), quoting Welsh, 466 U.S. at 750, 104 S.Ct. 2091. Noting that “neither Welsh nor Johnson involved hot pursuit,” the Court stated that, “despite our emphasis in Welsh on the fact that the crime at issue was minor—indeed, a mere nonjailable civil offense—nothing in the opinion establishes that the seriousness of the crime is equally important in cases of hot pursuit.” Stanton, — U.S. -, 134 S.Ct. at 6. The Court also noted that California properly had refused to limit the hot pursuit exception to felony suspects in two cases: People v. Lloyd, 216 Cal.App.3d 1425, 265 Cal.Rptr. 422 (1989), and In re Lavoyne M., 221 Cal.App.3d 154, 270 Cal.Rptr. 394 (1990). Stanton, — U.S. -, 134 S.Ct. at 7. We find these cases persuasive. ¶ 21 In Lloyd, a police officer activated his emergency lights to effect a stop after observing the appellant’s brother Calvin run a red light. 265 Cal.Rptr. at 423. Calvin refused to pull over, accelerating and running a stop sign before finally parking on the curb in front of a house. Id. Law enforcement then approached him and asked for his license and registration. Id. He refused to comply, instead retreating into the house, telling an officer that he was not going to give him a “damn ticket.” Id. Calvin’s brother, appellant Willie, told the officers they could not enter without a warrant. Id. The officers then forced their way in and placed Calvin and Willie under arrest. Id. The Lloyd court held that the detention clearly began in public, and that “Calvin’s conduct in quickly walking away from the officer rather than complying with the demand for identification provided the officer with probable cause to arrest him” for a misdemeanor under Cal. Penal Code § 148. Lloyd, 265 Cal.Rptr. at 424-25. ¶ 22 Lavoyne M. presented similar circumstances. There, having observed a vehicle run multiple stop signs, an officer activated his lights and siren in an attempt to effectuate a stop, but the driver refused to pull over. 270 Cal.Rptr. at 394. Eventually the car did stop in front of a house, and the driver ran inside. Id. at 395. An officer recognized the driver from prior contact as a minor too young to have a driver’s license, indicating a civil traffic violation. Id. The officer immediately followed the driver into the home, and placed him under arrest. Id. The Lavoyne M. court held that the “[mlinor’s refusal to comply with the attempts to detain him provided probable cause for the officer to arrest him,” citing Cal. Penal Code § 148 and Lloyd. Lavoyne M., 270 Cal.Rptr. at 396. ¶ 23 In addition to California, several jurisdictions have held that the hot pursuit exigency applies to eases involving less serious offenses. In Middletown v. Flinchum, 95 Ohio St.3d 43, 765 N.E.2d 330, 332 (2002), a case the trial court here relied on in denying Hernandez’s motion, the Ohio Supreme Court held: Although Santana deals with the issue of warrantless home arrests in the context of a felony suspect, we see no reason to differentiate appellant’s offense and give him a free pass merely because he was not charged with a more serious crime. The basic fact remains that appellant fled from police who were in lawful pursuit of him and who had identified themselves as police officers. Illinois, Massachusetts, and Wisconsin have all adopted similar rules. People v. Wear, 371 Ill.App.3d 517, 311 Ill.Dec. 41, 867 N.E.2d 1027, 1042 (2007) (“[T]he doctrine of hot pursuit does not care whether it was a Terry stop or an arrest that the police officer set in motion before pursuing a suspect into a private place.”), aff'd, 229 Ill.2d 545, 323 Ill.Dec. 359, 893 N.E.2d 631 (2008); Commonwealth v. Jewett, 471 Mass. 624, 31 N.E.3d 1079, 1089 (2015) (noting “such a categorical distinction would arbitrarily permit perpetrators of serious misdemeanors ‘to avoid punishment merely because of how the legislature had labelled an infraction’ ”), quoting State v. Paul, 548 N.W.2d 260, 267 (Minn. 1996); State v. Weber, 372 Wis.2d 202, 887 N.W.2d 554, ¶ 33 (2016) (“[T]he mere fact that the underlying offenses at issue in this ease are misdemeanors is not a bar to application of the hot pursuit doctrine,”). ¶ 24 A minority of jurisdictions have applied a more stringent standard in cases of hot pursuit. In State v. Bolte, 115 N.J. 579, 560 A.2d 644 (1989), a case the trial court here declined to follow, the Supreme Court of New Jersey held that an officer in hot pursuit of a driver observed committing numerous traffic infractions violated the Fourth Amendment by following him first into his driveway, then into his garage, and finally into his house where the officer effected an arrest, stating: We reject the State’s contention that hot pursuit alone can support a warrantless entry into a home. Although the State argues that citizens should not be encouraged to elude arrest by retreating into their homes, the question whether hot pursuit by police justifies a warrantless entry depends on the attendant circumstances. Id. at 654. ¶ 25 Even were we to adopt the reasoning in Bolte, this case is distinguishable on several grounds. First, the officer followed Bolte first into his driveway, then into his garage, then into the home itself, and finally made the arrest upstairs in his bedroom. Id. at 645-46. Here, Hernandez was stopped outside the home and the deputies never entered it. Second, the officer in Bolte had reason to know that the home belonged to the defendant. See State v. Bolte, 225 N.J.Super, 335, 542 A.2d 494, 496 (1988) (garage door opened automatically). Hernandez’s vehicle was registered to a different address, and the deputies were unaware of his having any connection to the property until well after the arrest. Finally, Deputy Gilbert testified to his belief that Hernandez may have been attempting to flee, and that immediate contact was necessary to prevent potential harm to the community. In light of these circumstances, the deputies acted reasonably and in a constitutionally sound manner when they pursued Hernandez onto the home’s curtilage to effect the stop. ¶26 To the extent Hernandez and the dissent contend it is bad policy to authorize law enforcement to stop a motorist to investigate the absence of vehicle insurance, the criticism can only be addressed by the legislature. It has concluded that driving without insurance is an offense that requires law enforcement authority to stop a vehicle suspected of lacking insurance, A.R.S. §§ 28-1594, 28-4033; further, refusal to stop for this offense is punishable as a misdemeanor or a felony, A.R.S. §§ 28-622.01, 28-1595(A). It is within the legislature’s power to prohibit driving without insurance without authorizing officers to stop motorists for such a violation, but it decided otherwise. See, e.g., A.R.S. § 28-909 (failure to wear seatbelt is traffic violation, but no authority to stop motorist driving without a seatbelt “unless the peace officer has reasonable cause to believe there is another alleged violation of a motor vehicle law”); Tucson City Code § 20-160 (no law enforcement authority to stop motorists violating hands-free cell phone ordinance). Moreover, assessing the reasonableness of law enforcement’s conduct under the Fourth Amendment takes into account the decision of the state legislature regarding the seriousness of the offense and the authority of officers to investigate it. See Welsh, 466 U.S. at 754, 104 S.Ct. 2091 (statute is “best indication of the State’s interest in precipitating an arrest, and is one that can be easily identified both by the courts and by officers faced with a decision to arrest”). ¶ 27 In sum, Hernandez’s attempt to elude law enforcement by entering a private driveway constituted probable cause that he was attempting to flee, despite the fact that the reason for the stop was a civil traffic violation. The Fourth Amendment does not require that the deputies must “shrug [their] shoulders and go obtain a warrant” when the initial violation was for a minor offense. Wear, 311 Ill.Dec. 41, 867 N.E.2d at 60. “Law enforcement is not a child’s game of prisoner[’]s base, or a contest, with apprehension and conviction depending upon whether the officer or defendant is the fleetest of foot.” State v. Blake, 468 N.E.2d 548, 553 (Ind. Ct. App. 1984). A police officer in continuous vehicular pursuit of a person under investigation for a violation of the law cannot be arbitrarily stopped by the person’s entry onto private property. Any contrary rule would encourage flight to avoid apprehension, identification, and prosecution. Id. Disposition ¶ 28 For the foregoing reasons, we affirm the trial court’s denial of Hernandez’s motion to suppress. Accordingly, Hernandez’s convictions and sentences are affirmed. . Following oral argument in this court, we requested that the Cochise County Superior Court provide us with the exhibits from the suppression hearing. The clerk’s office subsequently informed us that it could not locate them. . The nature of the turn was described as elongated or sweeping. The angle of the turn is not dispositive of the Fourth Amendment issue or even a significant fact. . In addition to the excerpted statements already noted, the trial court stated: "And based upon the circumstances of this case, I do find that the reasoning of [United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976)] does apply to Mr. Hernandez’[s] case." . "The Arizona Constitution is even more explicit in safeguarding this liberty: 'No person shall be disturbed in his private affairs, or his home invaded, without authority of law,' " State v. Martin, 139 Ariz. 466, 473, 679 P.2d 489, 496 (1984), quoting Ariz. Const. art. II, § 8 (emphasis in Martin). But other than in the context of a war-rantless entry into the home itself, Arizona's courts have concluded that the protections of art, II, § 8 are coextensive with those of our federal constitutional jurisprudence, See State v. Peltz, 242 Ariz. 23, n.3, 391 P.3d 1215, 1222 n.3(App. 2017). . Neither Deputy Villa nor Deputy Gilbert mentioned either statute as a justification for following Hernandez onto private property. Nor did the state raise either of these arguments below. However, "[w]e are required to affirm a trial court's ruling if legally correct for any reason and, in doing so, we may address the state's arguments to uphold the court's ruling even if those arguments otherwise could be deemed waived by the state’s failure to argue them below.” State v. Boteo-Flores, 230 Ariz. 551, ¶7, 288 P.3d 111, 113 (App. 2012). This holds true even if the issue is fact-intensive, as long as "the state is presenting an argument to uphold the court’s ruling’' and "the factual record developed at the suppression hearing is sufficient for our review,” Id, ¶¶ 9-10. . A class 2 misdemeanor is punishable by up to four months in jail. A.R.S. § 13—707(A)(2). . Hernandez maintains he did not try to flee or elude the deputies. But the only other plausible explanation for his behavior is that he chose the backyard portion of the driveway as a safe location to pull over for the traffic stop, implicitly consenting to the deputies’ presence on the curti-lage, and therefore lacked a reasonable expectation of privacy there. Cf. State v. Fleischman, 157 Ariz. 11, 14-15, 754 P.2d 340, 343-44 (App. 1988) (implied consent to search can arise out of defendant's 9-1-1 call reporting crime at location later searched). Put another way, either Hernandez stopped for the deputies, or he did not. He is not entitled to both conflicting interpretations. . We do not hold that a driver who stops as soon as is reasonably practicable will generate reasonable suspicion of flight merely because he failed to stop immediately. We hold only that under the totality of the circumstances in this case, the deputies reasonably could have believed that Hernandez was attempting to elude them. .Our dissenting colleague disagrees with this assessment, but principally relies on inapposite cases that do not involve hot pursuit. See Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409, 1414-17, 185 L.Ed.2d 495 (2013) (warrantless intrusion without any exigency); Arizona v. Hides, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) (plain view doctrine); Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (four-day warrantless search after an emergency entry responding to gunshots); Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (police "entered the house and began to search for a man of the description they had been given”); United States v. Struckman, 603 F.3d 731, 745 (9th Cir. 2010) (suspect did not attempt to run); Hopkins v. Bonvicino, 573 F.3d 752, 769 (9th Cir. 2009) (entry under the emergency exception); Johnson, 256 F.3d at 898 (attempt to locate suspect who had last been seen thirty minutes prior). . Section 148(a)(1), Cal. Penal Code, makes it a crime to “willfully resist[ ], delay[ ], or obstruct[ ] any ... peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment.” . We need not decide and do not decide whether the result would have been the same had Hernandez entered the house before officers arrived. . For the same reasons, we find no violation of article II, § 8 of the Arizona Constitution.