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McALISTER, J. This action was instituted in the superior court of Santa Cruz county, this state, to recover from J. Celada, defendant-appellee, $6,130, the amount of a check dated August 2, 1919, and drawn by him on the First National Bank of Nogales, Arizona, in favor of Octavio Gaxiola. F. Unger and G. B. Burmister, residents of Mazatlan, Sinaloa, Mex ico, copartners doing business there under the firm name and style of Melcher Sues., were, the original plaintiffs, but after the suit was filed, to wit, on January 24, 1921, S. A. G-ardanier, Ignacio Soto, and F. J. B. Gonzales, composing a copartnership known as the International Commission Company, were substituted for them, upon motion of Unger and Burmister, the check having been indorsed to them on November 29, 1920, by Melcher Sues., who were at the time of the filing of the action its owners and holders, having become such in the due course of business through the successive indorsements of Gaxiola' and one Eduardo Amarillas. In their complaint Unger and Burmister' alleged that the bank refused to pay the check when it was presented for that purpose on or about August 10, 1919, because the drawer did not have to his credit sufficient funds to meet it. The defense, raised both by plea in abatement and by answer, is that during all the times mentioned in plaintiffs’ complaint the United States and the German Empire were at war with each other, and that F. Unger and G. B. Burmister, from the date the check was transferred to them through indorsement up to the day of the trial, were citizens and subjects of the German Empire and alien enemies of the United States abiding outside its territory; that prior to the commencement of the action and continuing up to the day of the trial they were listed by the government of the United States in the Enemy Trading List of the War Trade Board of the United States; and that the indorsement and transfer of the check were made by them during the pendency of the war between the United States and Germany and was an attempted contract by an alien enemy of the United States, and therefore void. A demurrer to the plea in abatement was interposed and overruled, whereupon testimony in sub stantiation of the plea was introduced, and upon this the court made the following finding of fact: “That at the time of filing of the complaint by Melcher Sues., the original plaintiffs in said action, said Melcher Sues, were, and are now, German subjects and alien enemies of the United States of America; that subsequent to the commencement of said action said Melcher Sues, transferred and assigned their interest in the subject matter of said action to the present plaintiffs herein, who on motion of counsel for said Melcher Sues, were substituted for said Melcher Sues, in said action.” From this the court concluded as a matter of law that at the.time the complaint was filed the plaintiffs F. Unger and G. B. Burmister had no standing in the courts of the United States, and that their successors in interest or indorsees, the present plaintiffs, acquired from them and had no greater rights than they. Thereupon the plea in abatement was sustained and the action dismissed. The assignments are based on these two orders, but it is necessary to discuss only the one sustaining the plea in abatement, for a correct disposition of it is decisive of the case. Under date of October 6, 1917, the Congress of the United States passed an act entitled “Trading "With the Enemy Act” (U. S. Comp. Stats. 1918, U. S. Comp. Stats. Ann., Supp. 1919, §§ 3115%a-3115%j; Fed. Stats. Ann., 1918 Supp., p. 846, 1919 Supp., p. 355), which defined as an “enemy,” among others, the following: “(a) Any individual ... of any nationality, resident within the territory ... of any nation . . . with which the United States is at war, or resident outside the United States and doing business within such territory. . . . “(c) Such other individuals ... as may be natives, citizens, or subjects of any nation . . . with which the United States is at war, . . . wherever resident or wherever doing business, as the President, if he shall find the safety of the United States or the successful prosecution of the war shall so require, may, by proclamation, include within the term . . . ‘enemy.’ ” . On May 31, 1918, the President of the United States found that the safety of the United States and the successful prosecution of the war required that certain other persons be included “within the meaning’ of the word ‘enemy’ for the purposes of the ‘Trading With the Enemy Act’ and of such trading,” and issued a proclamation designating, among other's, the following as enemies: “ (4) Such other individuals or body or class of individuals as may be citizens or subjects of any nation with which the United States is at war wherever resident outside of the United States, or wherever doing business ontside of the United States, who are or may hereafter be included in a publication issued by the War Trade Board of the United States of America, entitled ‘Enemy Trading List.’ ” 40 Stat. 1787. The evidence discloses that Melcher Sues., the co-partnership composed of F. Unger and G. B. Burmister, the original plaintiffs in this case, were, in pursuance of the authority conferred by the foregoing proclamation, placed on the Enemy Trading List by the War Trade Board of the United States, but that on April 28, 1919, acting concurrently with the proper authorities of the associated governments, the War Trade Board abolished all Enemy Trading Lists compiled or issued by it except as they referred to subjects of Germany or Hungary. But on July 14, 1919, the Department of State, to which the President had by proclamation granted this power, issued, through the Chief of its War Trade Board Section, in the following language, a general license to trade with the enemy: “Pursuant to the power vested in the President of the United States under section 5 (a) of the Trading with the Enemy Act and by the President delegated to the Department of State, the Department of State, acting through the War Trade Board Section, hereby issues a general enemy trade license to all persons' in the United States, authorizing said persons, for all purposes connected with the provisions of sections 3 (a) and 3 (c) of the Trading with the Enemy Act, on and after July 14, 1919, to trade and communicate, as defined in sections 2 and 3 (c) of said act with persons residing in Germany, and to trade and communicate with all persons with whom trade and communication is prohibited by the Trading with the Enemy Act.” It will be observed that the license contained in the foregoing and issued before this case was instituted or the check in question dated, drawn or transferred to Melcher Sues, authorizes the people of the United States to trade or communicate with persons residing in Germany as well as with all persons with whom trade and communication had theretofore been prohibited by the Trading With the Enemy Act. The authority thus conferred enabled them to do, after July 14, 1919, what they had been denied the right to do previous thereto, and carried with it the right to enforce in court any contract entered into or obligation incurred as a result of any business transactions consummated in pursuance thereof. “If the contract on which the suit is brought,” says Justice WASHINGTON in Crawford v. The William Penn, Fed. Case No. 3372, “arises directly or collaterally out of a trade licensed by the sovereign authority of the government in whose courts redress is sought, enemy interest in the subject in controversy will not defeat the action depending in the name of the subject as trustee. . . . The end being licensed, the ordinary legitimate means of attaining that end is considered as being also licensed. . . . Where commerce is permitted amongst enemies, contracts and actions founded upon them are permitted; ‘for who,’ [Bynkershoek] asks, ‘will sell and carry goods to an enemy, without the right of recovering the price of them, and what hope can there be of recovering that price, if one cannot judicially compel payment from his enemy purchaser.’ In cases of this nature, in courts proceeding according to the civil law, the only question is: Has the plaintiff a persona standi in judicio? Can he be heard as a plaintiff in that court? Bynkershoek, in the above quotation, gives the answer. The right to sue and to compel payment is a necessary incident to his right to trade and to contract. ’ ’ It is appellee’s contention, however, that inasmuch as Unger and Burmister were German subjects, and the United States was still at war with Germany when the check was presented for payment and this action instituted, the application of the common-law rule prohibiting an alien enemy from suing in the courts of the country with which his own country is at war' compels a dismissal of the action. But the Trading with the Enemy Act defines enemies for the purpose of trade and fixed their status, and its provisions on that subject are exclusive and controlling, since it was clearly within the power of Congress to do this, and, if this act had the effect of modifying the common law in any particular, the latter would necessarily give way. So, whether Unger and Burmister, German subjects residing in Mexico, were alien enemies within the meaning of the common law, or whether they came within the exception to that rule which permits an alien enemy residing in the country or who may come into it by license of its sovereign to maintain an action, is immaterial, since the license “to trade and communicate with all persons with whom trade and communication is prohibited by the Trading "With the Enemy Act,” issued in conformity with and in pursuance of this act, had the effect of giving them the right to sue in the courts of this country and of setting aside by implication any rule of the common law which may have denied them such right, for the act of Congress must unquestionably govern the matter. The fact that the general license to trade was issued during the existence of only a technical state of war months after victory had been won and actual hostilities ceased, when the reason for the rule denying enemies the right to sue in the courts of this country no longer applied, would indicate that it was the intention of the government that the business of the country should not be further hampered by such restrictions. The order sustaining the plea in abatement upon the ground that the original plaintiffs were alien enemies, and therefore without status in the courts of the country, at the time the action was filed, as well as that dismissing the action, was error. The judgment is reversed, and the case remanded for further proceedings in conformity with the views herein expressed. ROSS, O. J., and FLANIGAN, J., concur.

ROSS, C. J. (After Stating the Facts as Above.)— The case was tried to the court without a jury. The defendants introduced evidence tending to show that the note in question was given in consideration of the transfer of the personal property situated on section 26, and of the agreement to transfer to Tom L. Rodgers, trustee or agent, the plaintiff’s leasehold from the state, on section 26. In other words, the defendants’ testimony tended to show that the note and these two instruments all constituted but one transaction and grew out of the same negotiations. Plaintiff, to support the allegations of his reply, introduced evidence, without any objection on the part of the defendants, tending to show that the note was given for the personal property situate on section 26 and for no other consideration; the defendants had taken possession of said personal property and the land on which they were situate, and had been continuously in the use and occupation of the same. That although the agreement to assign the leasehold from the state of section 26 was made by plaintiff, A. G-. Holder, it was no part of the consideration. The court found the issues in favor of the plaintiff and entered judgment for the amount of the note, together with the interest and attorneys’ fees. Defendants prosecute their appeal from the judgment. Many assignments are made, most of which are based upon a violation of the parol evidence rule against varying the terms of written contracts. It may be that the three instruments — the note, the bill of sale of the improvements, and the agreement to assign the lease — were part of one and the same transaction and constituted but one contract. The plaintiff’s reply, however, challenged that as a fact and set up that the agreement to assign the leasehold interest was no part of the consideration. No exception was taken to the sufficiency of this reply. It was not challenged by the defendants as an effort to vary the terms of the written contract, either by pleading or on the introduction of evidence. The evidence of the plaintiff, supporting that allegation, was admitted without objection. After its admission no motion was made to strike it. As we understand the rule, parties to litigation may, by their voluntary act, deprive themselves of the benefit of any rule of law, except when the interests of the public might suffer thereby. In Brady v. Nally, 151 N. Y. 258, 45 N. E. 547, this rule is distinctly announced; the question involved being the admission of parol evidence varying the terms of a written contract. The court there said: “We think that the plaintiff waived his right to object to the consideration of that testimony by failing to make objection when it was received, and by neither moving to strike it out, nor directly challenging its effect in any way. If he desired the referee to disregard it, it was his duty to say so before the close of the trial. If he wished to have it out of the case, he should have made a motion to that effect. He could not expect the court, of its own motion, to refuse to consider testimony which he did not see fit to object to when it was received, and which he allowed to remain as evidence, without protest or question. By failing to take the position during the trial that it was not legal evidence, and, hence, that it should be disregarded, he impliedly consented that it should be considered and acted upon by the referee, who, indeed, had no right to refuse consideration to anything that the parties had spread before him as evidence to guide him in passing upon their rights. “It is, however, insisted that in view of the conclusive nature of the presumption that the written agreement embraced the entire contract between the parties, the parol evidence, although received by consent, cannot overcome that presumption. The answer to this position is that the parties may, by agreement, express or implied, accept oral testimony instead of the presumption ordinarily arising from written evidence. They have the right to make a rule of evidence for their own case, and they are presumed to have done so when testimony, otherwise incompetent, is received without objection, and without any effort to have it stricken from the minutes, or disregarded by the trial court. They may waive the rules established by the courts to govern the admission of evidence, the same as they may waive the rule established by the legislature, that certain contracts must be in writing; and a waiver may be inferred from the failure of the party, for whose benefit the rule was made, to object in due season, or in some way to insist upon compliance with the law.” It cannot be said, as a matter of law, the agreement to assign the lease was a part of the consideration for the note from the simple fact that it was executed or delivered contemporaneously with the note and bill of sale. The bill of sale was to R. F. Cooper. The note was signed by the Coopers and ran to the grantors in the bill of sale. The assignee of the lease, Tom L. Rodgers, is not one of the makers of the note, and that he took such assignment as trustee or agent of the Coopers was a matter of allegation and proof. So whether the agreement to assign the lease to Rodgers was a part of the consideration for the note signed by the Coopers was likewise a matter of allegation and proof. Rodgers was a stranger to the note and bill of sale. The several instruments were not between the same parties. The instruments on their faces did not show an interdependence. It was necessary, therefore, that the Coopers not only alleg’e, but prove, that they paid by the note the consideration for the agreement to assign the lease to Rodgers. Even when the parties to several instruments are identical and they pertain to the same subject matter, under some circumstances, it may be shown, by extrinsic evidence, whether they are dependent or interdependent of each other. Torrey v. Shea, 29 Cal. App. 313, 155 Pac. 820. The Holders testified that the agreement to assign lease to Rodgers was no part of the consideration for note, and the Coopers testified it was. Although the court made no findings of facts, it must have accepted the evidence of the plaintiffs to the effect that the whole consideration for the note was the bill of sale of the improvements and that the agreement to assign the lease to Rodgers constituted no part of the consideration for note. The defendants, in their answer, we suppose for the purpose of showing that the improvements conveyed to them, by the bill of sale, were an inadequate consideration for the note, described the improvements and their value. On the trial both sides, without objection, offered evidence as to the value of the improvements. Plaintiff, A. Gr. Holder, testified that he had paid $2,000 for the improvements, and thereafter added thereto improvements to the value of $500. He and other witnesses testified that the improvements at the time of the sale were worth to exceed $2,000. It is also shown that the plaintiff, A. G-. Holder, at the time of the sale, had been drafted into military service, and was expecting any day to go to Camp Cody for training; that he had been using section 26 and the improvements thereon in connection with sheep or goat raising; and that since he could no longer utilize it for that purpose, he was willing to surrender or abandon the lease, if he could sell his improvements. It was also shown that defendant J. T. Cooper either owned, or held under lease from the state, practically all the sections surrounding or near to section 26. All these facts the court had before it, and they doubtless had weight in arriving at the real consideration paid for the note. Another assignment is that the note was not properly assigned, since the indorsement by payee, W. S. Holder, was only his interest against J. T. Cooper; that assignment did not purport to convey to plaintiff his interest in the note as against defendant R. P. Cooper. This objection to the parties plaintiff, if well founded, comes too late. It was not raised in the lower court, and is for the first time urged here. As was said by this court in Hook v. Hoffman, 16 Ariz. 540, 147 Pac. 722: “The matter of raising an objection to a defect of parties plaintiff or defendant is regulated by statute. Civ. Code 1913, pars. 468 (4), 469.” Under these sections of the statute, if the defect of parties plaintiff is shown upon the face of the pleading, it may be reached by demurrer; if not thus shown, by answer. If the objection is not raised in one of these ways, it shall be deemed waived. Finding no prejudicial error, the judgment of the lower court is affirmed. McALISTEE and FLANIGAN, JJ., concur.

SHUTE, Superior Judge. In this case the plaintiff (appellee here) brought an action in the superior court of Maricopa county against the defendants (appellants here) to enforce the terms of an alleged oral contract under and by virtue of the terms of which the plaintiff asserted that the defendants had agreed to pay the expenses of plaintiff going to, while at, and returning from the city of Los Angeles during the summer of 1919; and upon his return he should enter the business of defendants on a fixed salary, and in addition thereto was to receive a bonus of one-third of the profits of the business. The answer of the defendants consisted of a general denial. The matter was tried by a jury who had submitted to it the issues as raised by the pleadings. The verdict of the jury was a general verdict finding for the plaintiff in a fixed sum. The defendants challenge the correctness of this verdict and appeal from the judgment of the court and the order overruling the motion for a new trial, and present four assignments of error, which we will consider in turn as they appear, except three and four which raise the same point and are therefore discussed together. The first assignment of error goes to the sufficiency of the evidence to support the verdict. In discussing this feature of the case it is well to call attention to the fact that the contract presented to the jury falls naturally into three separate and distinct propositions: First, the expenses of plaintiff on the road, while in Los Angeles, and returning from Los Angeles; second, wages while working for defendants; third, a so-called bonus claimed by the plaintiff based upon the profits of the business done by defendants. The second of these propositions, namely, the wages mentioned therein, is not in issue here, as there was no dispute over it, and it was admitted that the wages were agreed to and were paid by the defendants to the plaintiff in accordance with the terms of their contract. The verdict of the jury being- general in its nature must have been therefore in settlement of the first and third propositions, namely, for the expenses incidental to the trip to California and for the bonus which the appellee alleges was due him under the agreement. Our decision on the third proposition makes it unnecessary to examine the first, as it appears to us that it is necessary to grant a new trial for the error hereinafter shown. It was incumbent upon the plaintiff below to prove the contract as alleged. The only evidence in the record, so far as we are able to determine, which would in anywise tend to support the claim of the plaintiff that defendants had made a profit upon the business, consisted of the testimony of the plaintiff alone, who testified that at the taking of a certain inventory it was estimated that the profits were about $2,000. This was purely an opinion of the plaintiff in the case, and no other evidence was offered to support it. The witness presented at the trial testified that the taking of the inventory mentioned by the plaintiff was only for the purpose of determining the value of the inventory list, and could not have been used for the purpose of determining profit. There being no evidence in the record by which the jury could have found that a profit had been enjoyed in operating the business, a reversal must be had. The second assignment of error goes to the admission of a memorandum-book over the- objection of the defendants to the effect that the accuracy of the entries made and the charges made therein were not established. An examination of the authorities cited by counsel in their respective briefs, as well as an investigation of other cases, would leave a doubt in the mind of the court as to the correctness of this ruling were it not for the statute (paragraph 1756, Civ. Code; Eev. Stats. Ariz. 1913). This question having' been made the subject of legislative action, we are bound by the terms of the statute, and we can only examine the evidence in the light of this paragraph to ascertain whether or not it comes within the section. We think the evidence sufficiently complies with this statute to entitle the book complained of to be admitted in evidence. Appellants’ assignments of error 3 and 4 relate to the ignoring by the trial court of an outburst of applause in which one or more of the trial jurors participated by rising from their seats and clapping their hands in approval of a statement of the plaintiff while he was upon the witness-stand. Inasmuch as the matter must be retried for the error hereinbefore pointed out, and this assignment being upon a matter not likely to again occur, we do not deem it necessary to pass upon this assignment. For the reasons herein mentioned, the case is reversed and remanded to the lower court for new trial. ROSS, C. J., and FLANIGAN, J., concur. McALISTER, J., did not sit in this case.

McALISTER, C. J. Appellant, Sam Mendivil, was convicted of the crime of robbery alleged to have been committed in Mesa, Maricopa county, Arizona, on the night of August 14, 1921, and given an in determinate sentence of not less than twenty nor more than twenty-two years in the state prison. The victim was one George Quan, a Chinese merchant. Appellant, accompanied by a boy sixteen or seventeen years of age, went to the store of Quan about 9 o’clock P. M. of that day and took from his cash register $80 in money while the boy, who testifies that he was led into it by appellant, compelled him to hold up his hands by pointing a pistol at him. Mendivil appeals from this conviction and the order overruling his motion for a new trial, but has brought to this court for its consideration only the record; no brief pointing out the errors relied on having been filed to aid the court in determining the matter. Notwithstanding appellant’s dereliction in this particular, we have, in compliance with the provisions of paragraph 1171, Revised Statutes of 1913, Penal Code, examined the record, including the information, transcript of the evidence, and the instructions, and find nothing therein showing that appellant did not have a fair and impartial trial, and that he was not convicted in accordance with the requirements of the statutes. The judgment is therefore affirmed. ROSS and LYMAN, JJ., concur.

PER CURIAM. This ease was appealed by the state. The record was filed April 29, 1922. Among the papers is a verdict of “not guilty.” The prosecution has not directed the court’s attention to any order of the lower court in the record, made by the statute (section 1155, Pen. Code) ground for appeal by the state. Indeed, the state has failed to prosecute its appeal, and for that reason the appeal is ordered dismissed.

McALISTER, J. This is an action under the employers’ liability law, in which the plaintiff seeks to recover damages for personal injuries suffered by him as a result of an accident, and from a judgment for him in the sum of $15,000, and the denial of its motion for a new trial, defendant appeals. • The complaint properly alleges a canse of action under the employers’ liability law, but the answer denies that the injury was caused by an accident due to a condition of the occupation, and alleges affirmatively that it resulted from appellee’s negligence in failing to obey and comply with the orders and instructions of the defendant regarding such occupation, as well as the laws of the state of Arizona prescribing the duties of one engaged therein, and from his failure to exercise ordinary care, caution, and prudence for his own safety. Appellee, Francisco Campillo Bender, ' was employed by the .Morning Glory Mining Company as a miner, and while in the discharge of his duties was injured on June 1, 1920, by a blast or explosion which threw rocks and dirt against his body, resulting in the total loss of his sight. The accident occurred in this way: At 3:35 that afternoon appellee and his partner, Francisco Torres, lighted the fuse in five holes which they had just charged for blasting, and immediately withdrew to a tunnel some three or four hundred feet away. Within five minutes thereafter they heard three explosions, but remained in their place of safety fifteen minutes longer waiting for the other two, and, not hearing them, returned to the holes at 3:55 in order, as appellee testified, to ascertain which two had missed, so they could “take care of the next shift,” and just as they “got to the place the holes went off,” with the result that both were injured, appellee suffering complete loss of both eyes. The evidence shows that Chris B. Wilson was foreman at the mine, and that he was known to appellee, who had been both hired and directed where to work by him. The essential facts of the case are not disputed, hence it is a question of the proper application of the law. The assignments, with one exception, are based on subdivision (e) of paragraph 4071, Civil Code of 1913, which provides that “misfire holes shall be reported to the mine foreman, or shift boss, in charge of the locality of such holes.” It is contended that under this statute it was the duty of appellee to report the misfire holes to the foreman, and that his failure to do so, being the proximate cause of the injury, was negligence per se which prevents a recovery. In substantiation of this proposition the following excerpt from volume 3, section 1278, of Labatt’s Master and Servant, is cited: “There can be no question that, where a servant’s injury was proximately caused by the fact that he was violating a statute or municipal ordinance, the meaning and effect of which are perfectly clear, he cannot recover damages. This doctrine is applied regardless of the fact that the employer may have directed his servants to violate the law, or may have sanctioned the growth and continuance of a custom which amounts to a contravention of the law. ’ ’ It is true that it was appellee’s duty to report to the foreman or shift boss having charge of that part of the work that two holes had misfired; but was his return to them after a lapse of twenty minutes from the lighting of the fuse in each hole, for the purpose of taking “care of the next shift,” a failure to comply with the Statute? We think not, because it is clear from the evidence that fuse of the character of the three-foot lengths used in each of these holes burns at the rate of one foot per minute, and necessarily each of these pieces wquld burn to the powder in less than five minutes from the time they were lighted if there was no defect in them, and a number of witnesses experienced in mining testified that it is considered perfectly safe to approach misfire holes after a lapse of twenty minutes, and that it is customary for the miner to do this unless otherwise instructed by his employer. In this case appellee testified that no other instructions had been given him, and that Ms purpose in returning was “to see which holes were missed” because that was “the customary thing to do to report missed holes to the next shift.” By a personal inspection he could ascertain which holes had misfired, as well as the reason for the failure of the others, and also whether two had exploded simultaneously, leaving only one, and thus place himself in a position to give the next shift exact information. Instead of violating the statute, he was endeavoring to comply with it completely, and the fact that he did it in a way that was considered safe by those following that occupation and in compliance with the custom of the mining industry in that section relieves him from any charge of negligence. It is claimed that it was error to admit testimony proving it to be the custom among miners to return to the locality of the misfire holes in twenty minutes because such a custom could not relieve appellee of his duty to comply with the statute. This contention, however, is disposed of by the statement just made that in returning to the holes appellee was not violating the statute, but attempting to gain, in the only way open to him, information which would enable him to perform his statutory duty in a satisfactory manner. The statute was enacted for the benefit of the next shift, not for those having knowledge of the situation, and the custom, instead of conflicting with it, in practice supplements it by enabling the workman to report more accurately the conditions. The only other error complained of is the giving of the following instruction: “It is unnecessary to go into the reasons for the passage of such a law, it is unnecessary to dwell upon the fairness or unfairness of such a law, but it is the law that under those circumstances that an employee may recover for injuries to his person while engaged in hazardous occupation, whether the employee is to blame or not, and that, under the facts shown by the evidence, is claimed to be one of those occupations.” The part objected to is the use of the word “employee” in the (sixth) line, which, it is claimed, conveyed to the jury the impression that under the employers’ liability law an employee may recover for injuries to his person while engaged in a hazardous occupation whether he is to blame for the injury or not. The remainder of this instruction is in these words: “The occupation is undoubtedly hazardous, and if other facts exist he is entitled to recover whether the employer is at fault or not. So the legislature has enacted this act to protect the safety of employees in hazardous occupations, such as mining, smelting, etc., and any employer, whether individual, association, or corporation, shall be liable for the death or injury, caused by any accident due to a condition or conditions of such occupation, dr due to such occupation, of any employee in the service of such employer in such hazardous occupation, in all cases where such death or injury of such employee shall not have been caused by the negligence of the employee killed or injured.” It is clear from a reading of the entire instruction that the word ‘ ‘ employer ’ ’ was intended, and that the jury must have so understood it. In the very next sentence the jury is told that the employee is entitled to .recover whether the “employer” is at fault or not, and at the end of the instruction that the employer is liable, when the proper'facts exist, in all cases where the death or injury shall not have been caused by the negligence of the employee killed or injured. In the succeeding instruction the statement is made that five things must be proven before appellee can recover, and the fifth is that the injury was received by him without fault or negligence on his part, and this idea is repeated several times in the instructions. What is meant by negligence of the employee as a defense is defined as follows: “By negligence on his part is simply meant the want of ordinary care, as I have defined it, and in order to bar a recovery it must be shown that it was his negligence that caused the injuries; but it must be proven by him, he must prove that the injury he received was not caused by his own carelessness or negligence. ’ ’ It is clear from the entire instructions that it was a mere lapsus linguae or slip of the tongue and that the jury could not have been misled by it. But, even if it did not understand that the reference was to the employer instead of the employee, appellant was not injured, because the evidence, which is undisputed, shows conclusively that under the custom prevailing in that section the injury was not due to appellee’s alleged negligence in returning to the holes within twenty minutes after lighting the fuse, but that it resulted from an accident due to a condition of the employment. No facts are disclosed indicating that appellee was in any way to blame; hence the jury could not have been misled or appellant injured by it. If there had been any evidence pointing to the contrary, and it were not so plain that it was a mere slip of the tongue, which the jury understood, appellant might be able to argue this assignment with plausibility. The judgment is affirmed. ROSS, O. J., and FLANIGAN, J., concur.

McALISTER, J. This is an action by Fen S. Hildreth against the Pratt-Gilbert Company, a corporation, in which he seeks to recover the purchase price of a Monarch tractor sold him by the latter. From a judgment for plaintiff in the full amount asked for, $1,856.70, and an order denying its motion for a new trial, Pratt-Gilbert Company appeals. It appears from the complaint that in the latter part of June, 1917, appellee, Hildreth, ordered from appellant a Monarch tractor which arrived in Prescott, Arizona, the latter part of July, 1917, and a few days thereafter was driven to appellee’s ranch in Yavapai county; that it was purchased for the express purpose of plowing, disking and preparing the land on appellee’s ranch for planting to crops, a fact then well known to appellant, who at the time of making the sale to appellee warranted that the said tractor was fully adapted to the particular purpose for which appellee desired it and that it would “develop eighteen (18) brake horse-power at the drawbar and thirty (30) horse-power at the crank shaft, and that said tractor would handle and pull four fourteen-inch plows in the soil on plaintiff’s said ranch, the condition of which said soil and the position and location of said ranch were to defendant company well known”; that appellee, relying upon said warranty, ordered and received said tractor and paid therefor the sum of $1,650 and for freight thereon from the factory at Watertown, Wisconsin, to Prescott, Arizona, the further sum of $206.70; that appellee was unable to use the tractor for plowing at the time he purchased it because of the hardness of the soil on his ranch due to the drought, and that he kept said tractor on his premises properly housed and protected from the elements until the condition of the soil was such that the tractor could he used, which was in the spring of 1918, and that upon a trial of it in the work for which it was purchased it failed to fulfill the conditions of the warranty above set forth, in that it did not and could not pull four fourteen-inch plows as aforesaid and did not and could not develop eighteen brake horse-power at the drawbar and thirty horse-power at the crank shaft, which said fact was immediately thereafter, to wit, on April 20, 1918, communicated to appellant, together with a demand for a return of the purchase price, including the freight, notice at the same time being served on appellant that appellee was ready to return the tractor, which was then at its disposal on his ranch in Yavapai county, in as good condition as when purchased. The answer admits the sale and delivery of the tractor and the payment of the purchase price, but denies the warranties claimed, and alleges that the sale was made upon an agreement that if, after a three-days’ test by appellee, the tractor did.not work well, he would give appellant written notice thereof stating wherein it failed, whereupon the latter would send a competent man to put it in shape, and, if this could not be done appellee should then immediately return the tractor to appellant; that the failure to give notice that the tractor did 'not work well after a trial as above stated or its use by appellee after three days from the time it was delivered to him without giving notice as to wherein it failed should operate as an acceptance thereof and a fulfillment of all warranties pertaining to the sale; that the tractor was delivered on July 29, 1917, a trial thereof had in behalf of appellee by his agent, Bob Southers, who accepted it, whereupon appellee on August 8, 1917, paid the purchase price; that at no time previous to April 20, 1918, did appellee notify appellant that said trac tor did not work well nor offer to return the same; that the notice and offer on said last-mentioned date were not within a reasonable time from August 7, 1917, the day of acceptance. It appeared from the evidence that about a week after the tractor had been delivered and, according to appellant, tested, and accepted by appellee through his representative, a request for the payment of the purchase price was made, but appellee, declining to accept the guaranty of the factory people whom he did not know, refused payment unless appellant, a local company, would guarantee that the tractor would do the work at his ranch. Consequently the following letter was delivered to appellee, whereupon he gave appellant his check for $1,650, having paid the freight when the tractor was unloaded in Prescott : “Pratt-Gilbert Company. “Phoenix, Arizona, 8 — 7—17. “Mr. Fen S. Hildreth, ‘ ‘ Fleming Bldg., “Phoenix, Ariz. “Dear Sir: As per your verbal conversation with our Mr. Doe this afternoon regarding the work the tractor purchased from us recently will do, we hereby guarantee said tractor to handle four fourteen-inch plows, and will develop 18 brake HP. at the drawbar, and 30 brake HP. at the crank shaft. “Hoping that this will meet with your approval and thanking you for your very many courtesies, we beg to remain. “Yours very truly, “PRATT-GILBERT CO., “CYRIL S. GILBERT.” Attached to this letter was the guaranty of the Monarch Tractor Company, evidently in the form given with all its machines, which contained the warranties alleged in the answer and signed by appellant as well as by the manufacturer. These guaranties were delivered to appellee and the purchase price paid August 7 or 8, 1917, nine or ten days after the delivery of the tractor. Hence it would seem to be clear that it was not then understood by either party that the three days’ test required by the factory guaranty had been made, or, if so, that the tractor was accepted in consequence of it; otherwise, appellee could have had no purpose in demanding* and appellant none in giving* its separate guaranty. But even if it had been made appellant, in order to satisfy appellee completely as to the tractor’s fitness for his purpose, guaranteed in its letter of August 7, 1917, reliance upon which prompted the payment of the purchase price, that it would “handle four fourteen-inch plows, and will develop 18 brake HP. at the draw-bar, and 30 brake HP. at the crank shaft,” though no definite time for ascertaining whether it would do this was given, and appellant contends that from August 7, 1917, the date of payment, to April 20, 1918, the date of the letter of rescission, a period of over eight months, is unreasonable and as a matter of law constitutes a waiver of any breach of warranty and an acceptance, and bars appellee’s right to rescind. This is true unless there was a definite agreement fixing the time, or, in the absence of such an agreement, that there were conditions over which the parties had no control rendering it impossible to make the test within a reasonable time, for there is no question as to the right of the parties to fix their own time, and under all the authorities when none has been fixed the purchaser is allowed a reasonable time. 35 Cyc. 439. Appellee alleged, however, and the court so found, that appellant through its agent gave him until the fall or spring plowing to make the test, but the sufficiency of the evidence to support this finding is challenged, and in support of its position appellant cites the following excerpt from the testimony of appellee, which is all the record contains on the subject: “Q. At the time that you bought this tractor, was there any time specified when you were to try it? A. Yes, in a way. “Q. State what that was, and when? A. In my talk with Mr. Doe in the St. Michael Hotel, in July, 1917, I told Mr. Doe I didn’t want the tractor right then. He says, ‘You give me the order for the tractor, beeáuse you will save some money by it, and then you can use it this fall or the spring when yon are going to use it, and yon will save this much money. ’ “Q. Did he say how much? A. I think it was about $170 he said I would save.” The purport of Doe’s statement is that by purchasing the tractor at that time appellee would save money and then have it for use in the fall or spring, or whenever he intended to use it. The word “use” is not synonymous with the words “test” or “try,” and there is nothing in the context indicating that it was intended to convey that idea. But it is only by giving it this meaning that the finding can be sustained, and without passing upon the objection to the admissibility of this testimony, urged upon the ground that it was oral and that, when an agreement “made in parol is afterwards reduced to writing, the writing is presumed to contain the contract in its entirety” (Lanham v. Louisville & Nashville R. R. Co., 120 Ky. 351, 86 S. W. 681), it sufficiently appears that the evidence does not justify the finding. No time for determining whether the tractor would fulfill the warranties having been agreed on by the parties themselves, it was incumbent upon appellee to ascertain this fact within a reasonable time, and by this is meant a “fair and sufficient time and opportunity, all the circumstances considered, including his own, to test and examine the property and ascertain whether it corresponds with the warranty or not. ” Boothby v. Scales, 27 Wis. 626; Cookingham v. Dusa, 41 Kan. 229, 21 Pac. 95. It is contended in behalf of appellee that he met this requirement by alleging in his second amended complaint on which the case went to trial, and proving to the satisfaction of the court which found it to be a fact, that on account of the hardness of the soil on his ranch as a result of the drought his first opportunity to make the test was in the spring of 1918. If it be true that he was prevented by the condition of the soil from ascertaining before spring whether the tractor would do what it had been guaranteed to do, it might be held that he had acted within a reasonable time, because to have required earlier action under those conditions would have rendered his warranty useless, since it would have been demanding the impossible, and this the law does not do, but whether he was able to test the machine under the proper conditions before rescinding, as he claims was both his privilege and duty, is immaterial, since it appears from the testimony of appellee himself: that he learned as early as October, 1917, that the tractor would not do the work it was warranted to do, or, to use his own words, “they [referring to his employees] said I was stuck; that it wouldn’t work”; “that the tractor was' used in October and was not able to pull more than two plows,” and also from his original complaint in this action in which he alleged as follows : “That immediately thereafter [August 7, 1917] said plaintiff placed said tractor in operation in work for which it was purchased and which it was intended to do as above set forth, and plaintiff alleges that said tractor never at any time fulfilled the conditions of the warranty set forth in that the said tractor, the same being then and there properly and carefully handled, did not and could not pull four fourteen-inch plows as aforesaid.” It is immaterial whether appellee tested the machine under the conditions called for by the agree ment if he learned from a test under any circumstances that it would not do what it had been guaranteed to do. It is plain that if it would not pull two mold-board plows, a test to demonstrate whether it would pull four was unnecessary, and when he ascertained this fact it became his duty to notify appellant promptly of his decision to rescind, because, as very appropriately and correctly said in Boothby v. Scales, above: “It is inconsistent with the nature of the right or privilege thus given the purchaser, that there should be any unnecessary delay in the exercise of it. The 'seller in the meantime is deprived of the use of his property and perhaps of the opportunity for resale. He is liable to refund the purchase money with interest from the time of sale, or, if it has not been paid, he loses the interest on it. These considerations are sufficient to require promptness and forbid needless delay on the part of the purchaser. If it appears that he had ample time and opportunity to test and examine the article, and ascertain its quality or capacity with reference to the warranty, and might have conveniently done so, but neglected to do it, such neglect should be regarded as a waiver of the right to rescind, and as an election on his part to retain the property, subject to such claim for damage as he might subsequently establish.” See Cookingham v. Dusa, above; Gale Sulky Harrow Mfg. Co. v. Moore, 46 Kan. 324, 26 Pac. 703; Best Mfg. Co. v. Hutton, 49 Mont. 78, 141 Pac. 653; Southern Gas & Gasoline Engine Co. v. Adams & Peters (Tex. Civ. App.), 169 S. W. 1143; Northern Electrical Mfg. Co. v. H. M. Benjamin Coal Co., 116 Wis. 130, 92 N. W. 553; 2 Black on Rescission and Cancellation, par. 542. The evidence discloses that the tractor was used many times by appellee’s employees before the letter of rescission was written, though it is claimed that each instance was merely an effort to test it; but, whether this be true or not, a number of repairs became necessary as a result and were made by appellee at a cost of several hundred dollars, notwithstanding the Monarch Tractor Company agreed in its warranty, signed also by appellant and delivered to appellee at the time of payment, “to furnish free of charge, any part that may prove defective within one year,” though in the same instrument it reserved the right to “require the return of such defective part, freight or express prepaid, to the factory for inspection and examination,” and assumed “no responsibility when the machine or part returned indicates misuse or neglect or alteration, or repairs made outside its factory.” None of the parts needing repair or replacement, however, among which was a cracked cylinder head, was sent to the company for that purpose ; but whether this was prompted by the fact that they were not defective but broken as a result of misuse or negligence does not appear. If they had been merely defective, it would seem as if appellee would have called upon the warrantor to “make them good,” appellant’s special warranty not covering repairs, because a purchaser would not willingly pay for replacing or repairing a defective part when the seller had agreed to do this free of charge. That his failure in this respect was prompted by his belief that the injuries were not due to a defective part, but to misuse or neglect of the tractor after its delivery to him, is strengthened by the testimony of C. IT. Pratt, one. of the owners of appellant company, that appellee stated to him in the spring of 1918 that the water had frozen in the cylinder and cracked it, and by that of the witness E. J. Preestead that C. H. Pratt repeated this statement to him in the presence of appellee who did not deny it. The cylinder head had been repaired in Kingman by welding, and the opinion of Preestead, a farm implement ex pert and tractor demonstrator, as to whether it would be all right in the future, was sought; but the witness was unable to answer, not knowing the exact character or place of the break. The evidence further discloses this condition of the tractor: A connecting rod burned out, a cylinder scored, an oil pipe and cylinder rods broken, and the tracks worn and out of line. It follows from this that it was in such shape that appellee could not restore the status quo, and where this is the case a rescission cannot be had. Cookingham v. Dusa, above; Burnley v. Shinn, 80 Wash. 240, Ann. Cas. 1916B, 96, 141 Pac. 326; Bradley v. Palen, 78 Iowa, 126, 42 N. W. 623; 35 Cyc. 440. The judgment of the lower court is reversed and the case remanded, with directions to dismiss the complaint. BOSS, C. J., and FLANIGAN, J., concur.

ROSS, J. The appellee, Muleshoe Cattle Company, applied to the state land department and the state land commissioner for the renewal of a lease that it, and its assignors, had held and enjoyed from the state, of three sections of land, to wit, 25, 26, and 35, township 12 south, range 21 east, in Cochise county, from April 20, 1916, for the term of five years; and, not being in default in any of the stipulations of the lease, contends it was entitled to a renewal thereof. The application for renewal was made upon a form furnished by the land commissioner, and was filed with the commissioner May 20, 1920. On June 29, 1920, E. A. Schilling filed with the commissioner an application for an original lease of the same sections. November 5, 1920, the commissioner approved the application of the Mule-shoe Cattle Company, and thereafter, on November 11th, delivered to it for execution, properly filled out, a regular lease form for grazing lands, to expire June 30, 1925, or for five years, and fixed therein the sum of $19.20 per annum as the rental for each section. November 5, 1920, Schilling, being dissatisfied with the rejection of his application and the allowance of the application of the Muleshoe Cattle Company, appealed from the decision of the commissioner to the state land department, and thereafter, on June 20, 1921, the members of the state land department held a hearing upon the conflicting- applications. Later, April 5, 1921, the department rendered its decision annulling the decision of the commissioner and ordered that lease of said three sections be given to Schilling. From this decision of the state land department the Muleshoe Cattle Company appealed to the superior court of Cochise county. Subsequently, on September 17, 1921, the court dismissed the appeal upon the ground that chapter 166, Laws of 1919, giving the right of appeal, was null and void. And said order of dismissal, not being appealed to the Supreme Court, has become final. November 12, 1921, the Muleshoe Cattle Company instituted this suit in mandamus in the superior court of Maricopa county, setting forth in its complaint in ample detail all the above facts, to compel the state land department and the state land commissioner to reappraise the rental value of the premises, in the event no reappraisement had been made, and to execute a lease thereof to it. The defendants filed an answer in which they specially demurred to the petition upon several grounds, and, also, for want of facts. The defendants set out in their answer as a defense, among others, facts concerning the use by Schilling of the said premises for grazing purposes prior to the date of. leases to the Muleshoe Cattle Company’s assignors, a hearing and investigation thereof by the department, and a determination of the facts in favor of Schilling. The plaintiff demurred to the answer of the defendants. The court overruled defendants’ demurrers, and sustained the demurrer of the plaintiff to the defendants’ answer. The defendants choosing to stand upon their demurrers and answer and refusing to amend, moon motion of the plaintiff, Muleshoe Cattle Company, judgment was entered in its favor commanding defendants to reappraise the rental values of said premises and thereupon to make and execute renewal leases thereof to the plaintiff, and to tender and deliver such leases upon plaintiff’s acceptance thereof by the payment of all lawful fees and rentals due or payable. The defendants appeal. Their assignments involve a construction of certain sections of the Land Code: Chapter 5, Laws 1915, and amendments; the Enabling Act, § 28, p. 104, Civ. Code 1913; and sections 3 and 10, art. 10, of the Constitution. Section 28 of the Enabling Act provides that none of the granted lands to the state shall be sold or leased “except to the highest and best bidder at a public auction” after advertising in newspapers for the time and manner specified therein; “provided, that nothing herein contained shall prevent said proposed state from leasing any of said lands referred to in this section for a term of five years or less without said advertisement herein required.” Section 3, article 10, of the Constitution, re-enacts, or reaffirms, section 28 of the Enabling Act. Section 10, Id., is a mandate to the legislature to enact proper laws for the sale of state lands, or the leasing thereof, for terms not longer than five years, for the protection of bona fide residents and lessees, in such manner that such lessees, in case of lease to others, shall be paid for improvements by succeeding lessees the value of improvements and rights, and providing that actual bona fide residents and lessees shall have preference to renewal of their leases at a reassessed rental, fixed as provided by law. The legislature, in conformity with the mandate of the Constitution, enacted chapter 5, Laws of Second Special Session of 1915, and in sections 30 and 31, as amended by chapter 166, Laws of 1919, and section 37, as amended by chapter 79, Laws of 1921, provided for the filing of applications with the land commissioner for leases, and the rights of those applying for renewals. Those sections are as follows : “Sec. 30. Application for Lease. — All state lands shall be subject to lease, as in this act provided, but no state lands shall be leased for a longer term than twenty years, provided, that when any state land is leased for a term exceeding five years, then such lease shall be granted in accordance with the provisions of the Constitution, the Public Land Code, and the rules and regulations of the state land department, of the state of Arizona, and the rental of the same shall be subject to reappraisal and readjustment at the end of each five-year period of such lease. All applications for lease shall be made on blank forms to be prepared and furnished by the commissioner and shall be signed and sworn to by the applicant and filed with the commissioner at the state land office.” “Sec. 31. Two or More. Applicants. — In case two or more applicants apply to lease the same land, the commissioner shall approve the application of the one who, after investigation or hearing by the commissioner, shall appear to have the best right to such lease, provided, that time or order of filing applications shall not be a controlling or a determining factor in deciding who is entitled to such lease, but if it should appear that none of the applicants has any right or equities superior to those of another, the commissioner, may, at a stated time, and after due notice to all such applicants, receive sealed bids submitted in accordance with such rules and regulations as the commissioner may adopt, and shall approve the application of the bidder, who in all respects, is eligible to hold a lease upon the land, and will pay the highest annual rental therefor; provided that the commissioner shall have the right to reject all the bids submitted, and provided further, that any person occupying a United States homestead, lying adjoining, shall, upon application as in this act provided, have a preference right to lease such number of adjoining acres as is necessary for the personal use of such homesteader.” “Sec. 37. Preferred Bights to Benetv. — Upon application made to the commissioner, not less than thirty (30) nor more than sixty (60) days prior to the expiration of the lease, the lessee shall have a preferred right of renewal, bearing even date with the expiration of the old lease, for such term not longer than five (5) years, as the commissioner may deem proper, at a reappraised rental; provided, that if the commissioner does not deem the continued leasing of said land to be for the best interest of the state, said lease shall not be renewed. And provided further that the preferred right to renew shall not attach to any lease to a lessee not an actual bona fide resident of the state.” The appellee bases its right to a renewal lease, or a new lease, upon the provisions of section 10, article 10, of the Constitution, and section 37, Laws of 1915. We state his contention in his own language: “It is inevitable from the foregoing provisions that the department may in its discretion determine whether or not the land shall be leased at all, or whether or not such is for the best interest of the state. If it determines that the lands shall not at all be leased, or that such is not for the best interest of the state, that is the end of the matter; but, if it determines that the lands shall be leased and that such is for the best interests of the state, as it did in this case, then its discretion is at an end, its duty is fixed by law, it must renew the antecedent lease or leases in the holder applying therefor, at whatever rental it determines upon reappraisal, which may be the same, a less or a greater rental, and all acts necessary or incident to such renewal are but ministrative in character. No other alternative exists and the department may not determine that the lands shall be leased but to some person other than the person to whom the preference right is so given.” The appellants, on the contrary, state that— “If such theory, is correct, then a renewal right is irrevocable, and runs with the land, and a 5-year lease is in fact a 10-year lease at the option of the holder, unless the land is withdrawn from leasing, and hence is in violation of the provisions of the Enabling Act which limits leases to five years, unless such leases are sold to the highest bidder in the manner provided in such law.” The Enabling Act makes it a condition that the state shall accept all the lands granted to it, in trust, for the purposes enumerated, and to be disposed of only in the manner therein provided, and that neither the land nor the proceeds of the land shall be used for any other purpose (section 28, Enabling Act). The state accepted said grants upon the terms and conditions stipulated in the Enabling Act. The compact between the state and the United States is, therefore, that none of the lands granted to the state shall be leased for a longer period than five years, without advertising, in the manner provided, the time and place and conditions of such leasing. The present transaction of leasing is sought to be sustained under the exception in the Enabling Act and Constitution that authorizes a leasing of such lands for terms of five years, or less, without advertisement. Under the Enabling Act of the state of Wyoming, the lands granted to the state for educational purposes were granted and accepted under the same terms and conditions as all institutional and school lands were granted to this state; the language employed in the Wyoming Enabling Act being: “But said lands may, under such regulations as the Legislature shall prescribe, be leased for periods of not more than five years. ...” In State v. State Board of School Land Commrs., 20 Wyo. 162, 122 Pac. 94, a proceeding in mandamus against the state board of school land commissioners involving the right by a lessee to a renewal of his lease, and in which it was contended, as here, that the laws of the state gave him that exclusive right, the court said: “Referring now to the relevant terms of the grant we observe that, following the provision requiring that all lands ‘herein’ granted for educational purposes shall be disposed of only at public sale, it is provided: ‘But said lands may, under such regulations as the Legislature shall prescribe, be leased for periods of not more than five years.’ There seems to be no uncertainty in this provision, and it is doubtful if any attempt to explain it could make it clearer. It is needless to consider whether, without any provision in the grant expressly permitting the lands to be leased, the state would possess unlimited power to lease them, but it may be assumed that the state would in such case have that power. The provision was, however, inserted authorizing the lands to be leased, but only for periods of not more than five years, thus clearly limiting the power to lease the lands granted for educational purposes, and the grant was accepted with that limitation. That an act of the Legislature requiring or authorizing a contract to be made leasing such lands for a longer period than five years would violate the aforesaid provision of the grant, and therefore exceed the power of the state and its Legislature, is beyond question. And, clearly, without violating the compact completed upon its acceptance of the grant with the limitations and conditions imposed thereby, the state cannot at any one time enter into a contract leasing any such lands for a period longer than five years. “It cannot be doubted that the state may lease any of the school lands repeatedly for a period not exceeding five years, and successively to the same person, under proper legislative regulations, so that the mere fact that a second or subsequent lease is made to a prior lessee of the same land will not constitute a violation of the terms of the grant. And we are not prepared to say that the land board may not lawfully be authorized to consider and act upon reasonable grounds of preference in passing upon two or more applications for the same land. But that is quite a different matter from a contract or statutory obligation, secure against change by subsequent legislation, to grant and execute a lease covering a period exceeding the limitation upon the power of the state in that particular, and that upon no other consideration than the agreed rental. “It is argued that the statute in question (section 613) complies strictly with the above-mentioned limitation expressed in the grant by providing for five-year leases. If, however, it confers upon the lessee, as contended, an absolute right, at the expiration of one five-year lease to a renewal thereof, and to subsequent renewals every five years, covering a total period of 20 years, and is to be read into every lease controlled by its provisions as a part of the contract, then, notwithstanding that a new lease is required to be executed at the end of each five-year period, the lands covered by such contract of lease would in effect be leased for a period exceeding five years, subject only to the lessee’s option to -surrender the lands, either by failure to demand a renewal or otherwise, and the provisions for reappraisement and fixing the amount of the future rent. This, we think, would be a clear evasion of the limitation expressed in the act of admission and accepted by the Constitution, for the state, by the original contract, would become obligated, if the contention of relator’s counsel be correct, to renew and thereby continue the lease at the option of the lessee, subject only to the conditions above mentioned, for the period prescribed in the statute. The effect of such a contract would not seem to differ materially, so far as the question under consideration is concerned, from a contract leasing the lands for 20 years, but giving the lessee an option to surrender at the end of any five-year period.” If the only way to defeat the right of a lessee to a renewal, as is contended by the appellee, is that the commissioner “does not deem the continued leasing of said land to be for the best interests of the state,” it follows that a lease for five years is necessarily a lease for ten years, at the option of the lessee, if the land is to be leased at all, and would constitute the leasing, or agreement to lease, for a term of five years or more, and violate the Enabling Act as well as the Constitution. “The statutory obligation” to lease the premises, if leased at all, to the former lessee in our opinion is just as obnoxious to the Enabling Act and Constitution as the Wyoming law, for the reason that few, if any, cases can arise where it will not be for the best interests of the state to lease its grazing lands. It is very improbable that the commissioner could, in one case in a thousand, honestly deem it against the state’s interest to lease such lands, since the general, if not the universal, rule is that they are good for no other purpose; and it is not to be supposed that the commissioner would arbitrarily, or capriciously, decide that it was not for the best interests of the state just for the purpose of defeating a renewal. The practical impossibility of the commissioner ever honestly determining against the leasing of grazing lands upon the ground that it would not be for the best interest of the state is such that, if the appellee’s construction of the- lqw be adopted, the application for renewal would always have to be accepted. We believe, however, that sections 30, 31 and 37 of the Land Code should be construed together. The provisions of section 31 empower the commissioner to investigate and hear contesting applicants, and to award the lease to the one that “shall appear to have the best right to such lease.” In such hearing it would doubtless be the duty of the commissioner to take notice of the provision in section 37 giving the lessee applicant “a preferred right of renewal.” We think that the preferred right of renewal given to the lessee is not an exclusive or absolute right, but is used in the relative sense of “better” or “superior” right, and implies a hearing or investigation to determine the quality of such right. The contention of the appellee, therefore, to the effect that the only discretion reposed in the commissioner, or land department, is whether or not it is to the best interests of the state to lease the lands, is not correct. The statute imposes on the department the duty to investigate applications and hold hearings thereon, where conflicting applications are made for the same lands, and in doing’ so, of course, they will exercise discretion and judgment. Campbell v. Caldwell, 20 Ariz. 377, 181 Pac. 181; Sutherland v. Taintor, 57 Okl. 292, 156 Pac. 1174. In this case the facts, as disclosed by the pleadings, are that such a hearing was had and the lease awarded to Schilling. Mandamus is not the proper proceeding to review the determination of the land department. If the action of the department was arbitrary and unjustified by the facts, as is contended by appellee, its remedy was by appeal. The record shows that such appeal was taken to the superior court and there dismissed by the court upon the ground that the law providing for appeal was defective in matter of procedure. We think the reason appellee did not appeal from the order of dismissal was that the legal profession generally had acquiesced in the correctness of the order, it being in accord with the rulings of other of the superior courts of the state. The contrary rule was not declared until the question was presented to this court in Davis v. Campbell, ante, p. 77, 206 Pac. 1078, and long after appellee’s time for appeal had expired. The misunderstanding, pardonable under the 'circumstances, is unfortunate, and if it were possible to review the ruling of the land department on its merits, in this kind of a proceeding, we would do so. Judgment is reversed and cause remanded, with direction to dismiss the case. McALISTER, O. J., concurs.

FLANIGAN, J. This is an appeal by the state of Arizona from an order denying its motion for a new trial, in an action brought in its name to recover a statutory penalty under the game laws. The action was brought under the provisions of section 668 of the Penal Code, Revised Statutes of 1913, as amended by chapter 169, Laws of 1919, Regular Session, Fourth Legislature. The relevant portion of said section reads: ‘ ‘ The state game warden, if he so elect, or any other officer charged with the enforcement of the laws relating to game, and fish, if so directed by the state game warden, may bring civil action in the name of the state against any person unlawfully wounding or killing, or having unlawfully in possession, any game quadruped, bird or fish, or part thereof, and recover judgment for each such animal or part thereof, the following minimum sums as damages for the taking, killing, or injuring thereof, to wit: For each elk.......................... $200 00 For each deer......................... 50 00 For each antelope..................... 100 00 For each mountain sheep or goat....... 200 00 For each bird......................... 10 00 For each fish.......................... 1 00 ” The complaint alleges that on March 10, 1920, in Navajo county, Arizona, the defendant was in unlawful possession of eight pairs of deer horns or sets of horns; that the possession of such eight pairs of deer horns is unlawful and in accordance with the statute the defendant thereby became indebted to plaintiff in the sum of $400, by way of damages. The only proof adduced to support the allegations of the complaint was the testimony of the defendant himself, who was called as a witness by the state. This testimony was that on the day in question, at Holbrook, in said county, he was in possession of four locked sets of deer horns and about ten single sets that were not locked, making “eighteen pairs altogether” of deer horns. Defendant admitted that he had no permission from the state game-warden to possess the horns, but testified that he had permission from the forest supervisor of the Grand Canyon game preserve to possess certain of them, and that the others were brought from Utah. Upon this testimony the jury returned a verdict for the defendant. The question we shall consider is whether the facts so established show a cause of action under the statute. The statute provides for a civil action, in the name of the state, against any person unlawfully wounding or killing or having unlawfully in possession any of the animals mentioned, or parts thereof, in which action judgment for damages may be recovered for the taking, killing or injuring of such animals. The plain import of the section is that a cause of action against one in unlawful possession of such animals, or parts thereof, can only arise where there has been an unlawful taking, killing or injuring of such animals, so that the possession of the animals so taken, killed or injured, or of parts -thereof, is likewise unlawful. There was no proof that the defendant had unlawfully taken, killed or injured the animals from which these horns came, unless his possession of these horns carried with it such presumption. The statute in speaking of unlawful possession recognizes that there may be a possession which is lawful, so that, if nothing but possession is shown, such possession is to be deemed lawful. The case for the state must, therefore, be based upon the supposition that the lawful possession of these sets of antlers was sufficient to prove that the defendant had unlawfully taken, killed or injured the animals which at one time bore them, and that this conclusion may be drawn not only where the possession is presumably lawful because there is no evidence to the contrary, but also where, as in this case, the presumption of lawful possession and that there was no unlawful taking, or killing, or injuring of such animals is confirmed by the only evidence adduced. To state these propositions is, of course, to refute them. The evidence was utterly insufficient upon which to base any judgment against the defendant, and the verdict of the jury in his favor and the order of the court denying the state’s motion for a new trial were right. The order is affirmed. ROSS, O. J., and McALISTER, J., concur.

McALISTER, J. Appellant, Anna Irene Hopkins, was convicted of the crime of throwing a caustic chemical, to wit, carbolic acid, upon the person of one Lucille Gallagher with the intent to injure her flesh and disfigure her body, and sentenced to an indeterminate term of not less than five nor more than fourteen years in the state prison. She has appealed from this judgment and the order denying her a new trial. Among other defenses, the insanity of appellant at the time the act was committed was interposed, and for the purpose of placing the law of this 'defense before the jury the court instructed as follows: “You are instructed that it is not the province of the jury to speculate as to what would be the result in case the defendant is found not guilty by reason of insanity, because it is the duty of the court in such case, if it believes the insanity yet exists, to order a hearing to pass upon that question, and the full responsibility with respect to that is upon the court. “I instruct you that the law recognizes that insanity is a disease of the mind, and that, as distinguished from earlier times, it is the policy of the law that diseases of the mind should be ■ treated in hospitals for the insane, as distinguished from penal institutions, and in this case, if you believe from the evidence submitted that the defendant at the time of the commission of the act charged was suffering from a disease of the mind to such an extent that it controlled her -will and compelled the commission of the act charged, then, notwithstanding that this act in a sane person would be punished criminally, it will be your duty to find the defendant not guilty by reason of insanity.” After deliberating several hours, the jury returned into court at 3:10 P. M., all parties being present, and the following proceedings were had: “The Court: G-entlemen of the jury, have you agreed upon your verdict? “The Foreman (Mr. Massing): No. “The Court: Do you desire some further information? “The Foreman (Mr. Massing): Yes. The information we want is in case the defendant not guilty by reason of insanity, we come to the agreement, would the defendant be put free? “The Court: Well, that is a matter that will be in the discretion of the court. “The Foreman: I think that is all we want to know. “The Court: Very well. You may retire, gentlemen. ’ ’ The jury then retired for further consideration of the case, and at 4:30 P. M. of the same day returned a verdict finding the defendant guilty as charged. Several errors are assigned, but they each raise the only question relied on by appellant, which is that the verdict is contrary to law, in that it does not accord with the foregoing instructions, and in support of this view it is argued that the question asked the court by the foreman of the jury when it came in for further instruction shows conclusively that the jury had agreed that appellant was insane at the time she committed the act charged against her, but that the answer of the court led it to believe that if it returned a verdict of not guilty because of insanity appellant might be allowed to go free; that the jury’s conviction that she was insane at the time entitled her to an acquittal, regardless of whether she would be put free even though insane, and its failure to follow the instructions in this respect and return a verdict in accordance with its conviction was a disregard of its duty. Appellant cites a number of authorities to show that the jury should have taken the law from the court and followed it, and that its failure to do so was reversible error. There can be no question but that such was. its duty, whether the court correctly or incorrectly instructed it, for this court, in line with the holding of all the courts on the subject, said in Pacific Gas & Electric Co. v. Almanzo, 22 Ariz. 431, 198 Pac. 457, that— “The instruction, although erroneous, was the law of the case until reversed, and should have been followed by the jury, even though in doing so a verdict which accorded with its ideas of right could not have been returned. Under our system of jury trial procedure the judge of the court determines the law of the case and the jury the facts, and to allow the jury to constitute itself the judge of the law as well as the facts would violate this fundamental principle.” To determine, however, whether the jnry failed to follow the court’s instruction as claimed by appellant, it would be necessary to know first whether it had reached or agreed upon a verdict that defendant was not guilty- by reason of insanity when it came into court for' further information and also whether its later conviction that she was guilty, with a verdict to that effect, was brought about in a proper-way. It is clear from the statements of the foreman that the jury was considering the proposition of appellant’s sanity and perhaps had questioned it seriously, but it will be observed that in reply to the court’s query as to whether it had agreed upon a verdict the foreman, speaking for the full jury, answered, “No.” He then wanted this further information: “In case the defendant not gnilty by reason of insanity, we come to the agreement, would the defendant be put free?” This sentence is not complete, yet we think it fairly imports but one thing, and that is this: In case the jury come to the agreement that the defendant is not guilty by reason of insanity, would the defendant be put free? This view is strengthened by the minute entries of the clerk of the court shown by the following : “Thereupon the court makes inquiry of the jury as to what verdict has been agreed upon, whereupon John Massing, one of the jurors, states to the court ip. effect and substance that the jury desires to know if, in case said jury returns a verdict finding the defendant not guilty by reason of insanity, whether under such circumstances the defendant would be set free, and the court states to the jury that that matter would be left to the discretion of the court, and it appearing that the jury has not yet definitely decided upon a verdict, the jury again retires in charge of the bailiffs, W. A. Murray and Jack Morrison, for further deliberation.” We think the language of the foreman, fairly interpreted, especially in view of his statement that a verdict had not been agreed on, cannot be given the meaning appellant claims for it. What the jury concluded as to her sanity must be gained from the verdict itself, and the mere fact that the foreman’s remarks indicate that the jury was then considering this question seriously does not justify a holding that it had at that time a definite conviction different from that finally reached. But even if it then had the view contended for, the fact that it finally came to the opposite conclusion would not justify this court in saying that the jury had not followed the court’s instruction not to speculate as to what the result of an acquittal would be, in reaching its final verdict, because through argument and reasoning jurors often reach conclusions different from those entertained by them when they first enter the jury-room or even after they have discussed for a while the evidence. And there is nothing in the record showing that it did not reach its verdict in this way. No error appearing, the judgment is affirmed. ROSS, O. J., and FLANIGAN, J., concur.

McALISTER, J. On July 30, 1919, Olive A. Stark and Joseph S. Stark, her husband, entered into an agreement with J. L. Norton, by which they agreed to sell and convey unto the latter certain real estate situated in the city of Phoenix, to wit, lot 27 in Los Olivas Amended, for a consideration of $8,500, to be paid as follows: $1,000 upon the execution of the contract and the balance in monthly installments of $50 each on the thirtieth day of each month thereafter, beginning August 30, 1919, the unpaid principal to bear interest from date until paid at the rate of eight per cent per annum, payable semi-annually. It was further agreed that Norton should pay the taxes and all assessments upon the property, including assessments of the Salt River Yalley Water Users’ Association, levied after January 1, 1919. Time was declared to be of the essence of the agreement which provided for the forfeiture of the right and interest of the purchaser of the property and of all payments made by him up to that time, in case of failure to comply with its terms, at the option of the vendor. In addition to the $1,000 paid upon the execution of the agreement, a payment of $50 on each of the following dates was made: August 30, October 1, October 31, December 1, December 30, 1919; January 31, March 1, April 1, May 4, July 2, August 2, September 1, October 2, October 30, November 30, December 30, 1920; March 2, March 15, March 31, and June 1, 1921. Interest was paid as follows: March 1, 1920, $291.03; September 1, 1920, $282.94; March 15, 1921, $270.24. The city and county taxes for 1920, $100.20, and a water assessment of $3 were not paid. No other payments being made, the vendors, on September 6, 1921, declared the contract forfeited and withdrew it and the accompanying papers from the Valley Bank in Phoenix, the escrow agent of the parties, through which all payments had been made, and demanded a surrender of the premises which the vendee refused. They then filed their complaint alleging the foregoing facts and praying that they be declared the owners of the property and that the defendants, J. L. Norton and Cora W. Norton, be required to surrender possession. The answer admits the payments as alleged, but sets up, by way of defense and also by way of cross-complaint, that, owing to the depression in business and financial conditions, the plaintiffs extended the time of making all past-due payments under the contract up to and including the fifth day of September, 1921, and that on said day appellees went to the Valley Bank for the purpose of making this payment, but the bank was closed, it being a holiday, and that on the day following they went to the bank again for the purpose of making the payment, but learned there that appellants had withdrawn the escrow papers, whereupon they sought out the plaintiffs and tfSdered to them personally during the afternoon of that day the sum of $577.67, being the amount claimed to be due, but that said plaintiffs refused to accept the tender and notified the defendants that they had changed their minds with respect to the said extension of time theretofore granted them for making the payments, and had declared a forfeiture of the contract and withdrawn the papers from the escrow agent. A tender to the clerk of the superior court and actual deposit with him of the amount due, $579.89, are alleged, together with an avowal of their purpose to deposit with said officer the amounts that would fall due under the contract during the pendency of this action. It is further alleged that said property has greatly enhanced in value during their occupancy because of the fact that they expended on it in permanent improvements in excess of $4,000. Plaintiffs demurred to the answer, upon the ground that it did not state facts sufficient to constitute a defense, and to the cross-complaint for the reason that it did not state facts sufficient to constitute a cross-action against the plaintiffs, and replied to the matter alleged in both the answer and cross-complaint with complete denials. The demurrers were overruled and, the plaintiffs electing to stand upon them, judgment was rendered in favor of the defendants. From this judgment the plaintiffs appeal. The only errors assigned are the orders overruling these demurrers and rendering judgment for the defendants. If the answer or cross-complaint states a defense, they were properly entered, since the plaintiffs, appellants here, offered no testimony in support of their allegations, but elected to rest upon their demurrers. It is their contention that since the answer admits, and the cross-complaint pleads, the payments as alleged by appellants, and no facts are set up showing a waiver or an extension of the time of payment of any of the installments of principal or interest, or an estoppel, their demurrers should have been sustained. The extension alleged, appellants claim, is ineffective because made without consideration and, for aught that appears in appellees’ pleading, upon the bare oral promise of appellants, and therefore the statute that anything* provided or agreed to be done upon a day or within a time named may be performed upon the next ensuing business day, when the day or the last day thereof falls on a holiday, has no application, it being clear that the contract extending the time of payment to September the 5th is not valid. Appellants’ contention rests upon the proposition that under the terms of the agreement appellees forfeited their right and interest in the property, as well as all payments theretofore made,, by their failure to meet the installments, the interest, and the taxes as they became due, inasmuch as time was of the essence of the agreement and not waived by any act of appellants. It is a rule of general application that where time is made of the essence of a contract of sale the failure to pay the purchase price, or any installment thereof, gives the vendor the right to declare a forfeiture of the contract. Douglas v. Hanbury, 56 Wash. 63, 134 Am. St. Rep. 1096, 104 Pac. 1110; Glock v. Howard & Wilson Colony Co., 123 Cal. 1, 69 Am. St. Rep. 17, 43 L. R. A. 199, 55 Pac. 713; Peterson v. Davis, 63 Kan. 672, 66 Pac. 623; 39 Cyc. 1340. But it is equally well settled that such right must be clearly established, and that it can be waived by the vendor, since the essence clause is inserted for his benefit and its observance is in no sense essential to a continuation of the other provisions of the contract. Bennie v. Becker-Franz Co., 14 Ariz. 580, 134 Pac. 280; 39 Cyc. 1345; Boone v. Templeman, 158 Cal. 290, 139 Am. St. Rep. 126, 110 Pac. 947; Whiting v. Doughton, 31 Wash. 327, 71 Pac. 1026; Douglas v. Hanbury, supra. A waiver, it is true, must be clearly proven also, but this may be done— “by express declaration or agreement, or by acts and conduct manifesting an intent and purpose not to claim the supposed advantage, or by so neglecting and failing to act as to induce a belief that it was the intention and purpose to waive.” 27 E. C. L. 911. Prom the complaint, which in this respect is admitted, as well as from the cross-complaint, it appears that when the forfeiture was declared, September 6, 1921, appellees had paid and appellants had accepted the first twenty-one installments of the principal and three installments of interest, and that, of the former, five only were on the dates called for by the agreement, six were one day late, five two days, one four days, one sixteen days and two more than thirty days; and that of the latter or interest installments one was thirty, one forty-four, and one sixty-four days late. The conduct of appellants’ permitting the time for so many payments to pass without declaring- a forfeiture for the failure to meet them, followed in each instance up to June 1, 1921, by an acceptance of the past-due installments, justifies the conclusion that they had foregone the essence clause of the contract and constitutes a waiver of it. Douglas v. Hanbury, supra; Boone v. Templeman, supra; Burmester v. Horn, 35 Cal. App. 549, 170 Pac. 674. By the same authorities forbearance to act upon the failure to pay one installment or the acceptance of one past-due payment would not of itself constitute conduct amounting to a waiver, but forbearance or acceptance repeated so frequently as in this instance does. Garvey v. Barkley, 56 Wash. 24, 104 Pac. 1108. It is claimed that appellees do not plead a waiver resulting from the action of appellants previous to June 1, 1921, but rely entirely upon the agreement extending the time of payment to September 5, 1921. Pacts, however, showing a waiver before this extension was granted are alleged, and the extension being, so far as the pleadings disclose, a contract without consideration and therefore ineffective, should be construed merely as additional evidence of a waiver. Whether appellees thought, when seeking the extension, that the essence clause had not been waived, as appellants contend snch action shows, in no way affects the existence of the waiver. Appellees’ rights in this respect did not depend npon their knowledge of the existence of snch rights, whatever effect it might have had upon their enforcement. The rights of appellants up to September 5, 1921, or to such time as they might have fixed in a notice to appellees as the date on which the essence clause of the contract would be reinstated, were limited to a recovery of the payments due and the giving of the notice of reinstatement. The essence clause having been waived, they were powerless to forfeit the contract for failure to meet the installments until it had again been made a part of that instrument, and this could only be done by appellants’ giving appellees notice that after a certain date,, allowing a reasonable time, they would be required to meet the payments as called for in the agreement. Andrews v. Karl, 42 Cal. App. 513, 183 Pac. 838; Gray v. Pelton, 67 Or. 239, 135 Pac. 755; Monson v. Bragdon, 159 Ill. 61, 42 N. E. 383; Keator v. Ferguson, 20 S. D. 473, 129 Am. St. Rep. 947, 107 N. W. 678; Whiting v. Doughton, supra; Douglas v. Hanbury, supra; Boone v. Templeman, supra. Appellants contend, however, that granting the extension to September 5, 1921, had the effect of such a notice, but there is nothing in the language pleading this extension justifying such a conclusion. Without force as a contract, its only effect was to indulge appellees further as to the time of payment of the installments then due or to become due by that time. It could not be construed to mean more than that appellants would then insist that these payments be met. There is nothing in the language used from which it can be even inferred that appellees would be required after that time to meet the installments as they fell due. It is true the payments should have been met promptly, but the essence clause having once been waived, its reinstatement should clearly appear before appellees are chargeable with having forfeited the $7,000 expended by them on the property in principal, interest, and permanent improvements, and this fact cannot be ascertained from the pleadings of appellants. The complaint itself, which alleges the dates the payments were made without also pleading facts showing that the making and acceptance of so many of them after they were due did not constitute conduct amounting to a waiver, would not withstand an attack based upon the ground that it does not state facts showing a forfeiture. Hence, the answer admitting the payments as alleged and merely pleading in addition facts strengthening the claim of waiver is not subject to the charge that it does not state a defense. It follows necessarily that the order overruling the demurrers was proper, and that the judgment-should be affirmed. It is so ordered. BOSS, C. J., and FLANIGAN, J., concur.

PER CURIAM. Appellant was convicted of the crime of manufacturing intoxicating liquor. His attorneys insist there was introduced upon his trial no evidence connecting him with the alleged offense. The Attorney General very frankly states in his brief “that there was no evidence which showed or tended to show that the appellant was on the premises at the time the liquor submitted in evidence was manufactured, or that the devices for manufacturing the liquor belonged to him, and the evidence failed to show any knowledge on the part of the appellant that intoxicating liquor was being manufactured on the premises. . . . We are forced to admit that there is no testimony on which to base a verdict of guilty of manufacturing intoxicating liquor.” The motion of appellant (based upon the above' admission of the Attorney General, which the record seems to support) to reverse and remand, with instructions to dismiss the case, is granted.

PATTEE, Superior Judge. By its motion for a rehearing, the appellee seeks a modification of the judgment of this court, by eliminating the direction that judgment be entered upon the verdict in favor of the substituted plaintiffs. The decision of this court was that the motion to substitute the parents in place of the administrator should have been granted, and that the amendment of the complaint accordingly should have been allowed, and that such amendment and substitution did not work any change in the cause of action and should be considered as relating back to the commencement of the action. The result is to place the case in the same position as though the parents had brought the action in the first instance. It is conceded by the appellee that: /‘The reversal of the judgment reinstates the verdict and restores the case to the condition which existed before judgment was rendered.” It follows that the case stands as though a verdict had been rendered in favor of the substituted plaintiffs. In an action at law, judgment follows the verdict as a matter of course. Save the right to grant a new trial the trial court would, in an ordinary case, have no power to do anything but render judgment on the verdict. So here, the amended complaint presenting no new issue, so far as the merits of the case are concerned, but, merely placing the proper parties to maintain the action as plaintiffs, no other course is possible, except to render judgment upon the verdict already returned. If reasons exist for setting aside the verdict and granting a new trial, they may be presented to the court below by proper motion, and the right to do so is expressly preserved by the judgment of this court. That the direction to enter judgment upon a verdict which is reinstated by an appellate court is neither unusual nor improper is shown by many adjudicated cases. For an instance, see Southern Pac. Land Co. v. Dickerson (Cal. Sup.), 204 Pac. 576. The motion for rehearing is denied. ROSS, C. J., and McALISTER, J., concur.

OPINION HOWARD, Judge. Appellant was found guilty by a jury of trafficking in stolen property in violation of A.R.S. § 13-2307 and was sentenced to a presumptive term of five years' imprisonment. He was tried with a co-defendant, Manuel H. Ochoa. Both appellant and his co-defendant were arrested as a result of a “sting” operation in Tucson conducted by the Department of Public Safety. Appellant contends that the trial court erred in instructing the jury on the elements of the crime. We agree and reverse. A.R.S. § 13-2307 states: “A. A person who recklessly traffics in the property of another that has been stolen is guilty of trafficking in stolen property in the second degree.” (Emphasis added) A.R.S. § 13-105(5)(c) defines “recklessly” as follows: “... that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists____” The trial court instructed the jury on the elements of the crime. It stated: “A person who recklessly trafficks [sic] in the property of another that the defendant knows, or should have known has been stolen, is guilty of trafficking in stolen property in the second degree. Recklessly means with respect to a result or to a circumstance described by a statute defining an offense that a person is aware of, and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstances exist____” (Emphasis added) As observed in the historical note, the statute was amended to its present form in 1978. The amendment substituted “recklessly” for “knowingly” in subsection A. The historical note further observes that the statute was based on the Model Theft and Fencing Act as proposed by G. Blakey and M. Goldsmith, Criminal Redistribution of Stolen Property: The Need for Law Reform, 74 Mich.L.Rev. 1511-1626 (1976). In this law review article, the authors note the difficulty in basing the appropriate mens rea on “knowledge” as did the Arizona statute prior to the 1978 amendment: “(i) The appropriate mens rea. Although the term ‘knowledge’ suggests an actual awareness of attendant circumstances, if ‘receiving statutes required absolute certainty, there would be few convictions, for one seldom knows anything to a certainty and the receiver in particular is careful not to learn the truth.’ Accordingly, most jurisdictions require the prosecution to show only that the defendant believed the goods were stolen, not that he knew this fact with certainty. Even when framed in these terms, however, jurisdictions have been unable to agree whether an objective test or subjective test of knowledge or belief is appropriate. Since prosecutors face difficult evidentiary burdens, some mitigation of the stringent subjective test is warranted. Indeed, the sophistication of modern fencing operations compounds the difficulties already inherent in proving even a defendant’s belief as to whether his goods are stolen. A possible response to these difficulties would be the adoption of the less confining objective test. Such a standard for criminal liability might be appropriate if it were limited to retail and wholesale dealers. A better reform, however, would be the adoption of a recklessness standard, under which a defendant would have a culpable state of mind if it were established that he purchased goods despite being aware of a substantial risk that the property had been stolen. Use of a reckless test would permit partial reconciliation of two somewhat conflicting aims of the criminal law. First, by applying a subjective test, a recklessness standard would hold the prosecution to a higher burden of proof than would an objective test, thus limiting criminal punishment to only particularly blameworthy conduct. Second, such a standard although not as favorable to the prosecution as an objective test, would facilitate the prosecution and conviction of fences since authorities would not be required to prove actual knowledge.” (Emphasis in original) 74 Mich.L.Rev. at 1559-61. The standard used by the trial court here was an objective standard and, as observed by Blakey and Goldsmith, places a lesser burden of proof upon the prosecution than does the recklessness test. The instruction given by the trial court was erroneous, conflicting, confusing and requires reversal. In view of the disposition of this case, there is only one other issue presented by appellant which we need answer. He argues that he was denied effective assistance of counsel because his counsel failed to move for a new determination of probable cause, Rule 12.9(b), Arizona Rules of Criminal Procedure, 17 A.R.S., based on certain statements made by a law enforcement officer before the grand jury. Apparently this officer testified differently at trial than he did before the grand jury. Assuming that this argument were even available at this stage of the proceedings, it is based on pure hindsight and does not begin to reach the standards of incompetency set forth in State v. Watson, 134 Ariz. 1, 653 P.2d 351 (1982). See also State v. Lee, 142 Ariz. 210, 689 P.2d 153 (1984). Reversed. BIRDSALL, C.J., and HATHAWAY, J., concur.

HAYS, Justice. After a joint trial, petitioner Darrick Leonard Gerlaugh and codefendant Joseph Albert Encinas (State v. Encinas, 132 Ariz. 493, 647 P.2d 624 (1982)), were convicted of first degree murder, A.R.S. § 13-1105, armed robbery, A.R.S. § 13-1904, and kidnapping, A.R.S. § 13-1304. Petitioner received concurrent sentences of 21 years on the armed robbery and kidnapping offenses. These sentences were to run consecutively with a 35-year to life sentence for probation violation. For the murder, petitioner was sentenced to death. Petitioner’s convictions and sentences were affirmed on appeal. State v. Gerlaugh, 134 Ariz. 164, 654 P.2d 800 (1982), supplemental opinion, 135 Ariz. 89, 659 P.2d 642 (1983). Petitioner sought post-conviction relief. See 17 A.R.S. Rules of Criminal Procedure, rule 32. The trial judge presided over the rule-32 hearing, pursuant to our order in State ex rel. Corbin v. Superior Court, 138 Ariz. 500, 675 P.2d 1319 (1984). After an evidentiary hearing, the trial court denied petitioner’s rule-32 petition. We have jurisdiction. Ariz. Const. art. 6, § 5(3); A.R.S. § 13-4031; 17 A.R.S. Rules of Criminal Procedure, rule 32.9(c). We affirm. We address the following issues related to whether petitioner was denied effective assistance of counsel at his sentencing: 1. Should the modification of the Watson standard of “minimal competence” in representation announced in State v. Nash be applied retroactively? 2.. What is the proper test for ineffective assistance of counsel in capital sentencing proceedings? 3. Did trial counsel render so little assistance that prejudice must be presumed? 4. Did the trial court apply the wrong standard of review in denying petitioner’s rule-32 petition? 5. Does the trial court’s finding, that petitioner failed to establish ineffective assistance of counsel at the rule-32 hearing, have significant probative value? 6. Did trial counsel render ineffective assistance by failure to argue against one aggravating circumstance? 7. Did trial counsel render ineffective assistance by failure to present additional evidence of — and/or argue for— the alleged mitigating circumstances implicated by petitioner’s (a) impaired mental condition? (b) age? (c) intoxication? (d) good character? (e) greater punishment in contrast to his codefendant’s? (f) cooperation with the police? 8. Did trial counsel acquiesce in the state’s recommendation of the death penalty? FACTS On the evening of January 24, 1980, petitioner and codefendants Joseph Encinas and James Matthew Leisure (Memorandum Decisions Nos. 5217, 5246 & 5264 (consolidated), filed September 13, 1982), had a few drinks at the home of Shirley Jones, a friend, who lived in Chandler. They decided to hitchhike to Phoenix and rob whomever offered them a ride. Petitioner was the only armed member of the trio. At about 11:30 p.m. Scott Schwartz, the victim, was driving in the vicinity. Schwartz had an injured leg and walked with the aid of a leg brace and crutches. Schwartz picked up the three defendants. Soon afterwards, petitioner pointed a gun at Schwartz and forced him to drive to a deserted road near a canal on the outskirts of Mesa. There, the three men forced the victim out of his car. Petitioner pointed the gun at Schwartz and demanded money. Schwartz grabbed the gun from petitioner. While attempting to escape, the victim pointed the gun at Leisure and pulled the trigger. The gun did not fire. “You fucked up” petitioner exclaimed, “There’s no bullets in the gun.” The three men knocked Schwartz to the ground, where they beat and kicked him for ten to fifteen minutes. Petitioner then announced that they would have to kill Schwartz to prevent him from identifying them. Petitioner ordered Encinas and Leisure to hold Schwartz on the road so he could run the victim over with the car. The victim succeeded in dodging the car several times by diving into an adjoining canal. Petitioner finally ran over Schwartz with the victim’s Lincoln Continental and felt the impact of the victim’s body with the car. Petitioner ran over the victim two more times and struck the victim’s head with the car bumper at least one time. At one point, petitioner positioned the car’s left rear wheel on top of Schwartz and floored the accelerator. Although badly hurt, the victim was still alive and was writhing in pain on the roadside. He began to plead with his assailants to tell him the reason for their attack. Petitioner took a screwdriver from the rear of the car and stabbed the victim in the head, neck and shoulders at least twenty times. Leisure also stabbed the victim ten to twenty times. A pathologist testified that these various assaults caused several injuries, any of which would have been fatal. The victim suffered numerous fractures, puncture wounds and internal injuries from his head to his midsection. His entire body was covered with bruises and abrasions. The three men dragged Schwartz’s body off the road to an adjoining field and covered it with alfalfa. Petitioner kept all of the money taken from the victim. The three men returned to the road and drove away in Schwartz’s car. When the car broke down, they resumed hitchhiking. They were picked up by Harry Roche in his pickup truck at about 2:00 a.m. Petitioner leveled the gun at Roche and forced him to make an apparently random series of turns. Finally, petitioner ordered Roche to pull off to the side of the road. Roche at first refused and complained that the roadside was too muddy at that particular point to stop. When petitioner pointed the gun at his head, however, Roche stopped the truck. Petitioner, Encinas, and Leisure got out of the truck. Roche quickly put the truck in gear and sped away. Petitioner later admitted that he intended to rob Roche. Several days later, Encinas related these events to a friend who then went to the police. The three men were arrested; all of them confessed. At his interview with the police, petitioner expressed no remorse about killing Schwartz. When asked how he felt after killing the victim, he replied, “How do you feel when you kill [wild] game?” In sentencing petitioner to death, the trial judge declared that, “This offense absolutely demonstrates this defendant’s total lack of regard for human life or human suffering.” I. THE APPLICATION OF THE NEWLY MODIFIED WATSON STANDARD TO POST-CONVICTION CASES Petitioner contends that he was denied effective assistance of counsel. The burden of proof is on the defendant to show ineffective assistance of counsel by a preponderance of the evidence. State v. Prince, 142 Ariz. 256, 260, 689 P.2d 515, 519 (1984). Traditionally, proving ineffective assistance of counsel in Arizona required a showing that the proceedings were reduced to a farce, sham or mockery of justice by counsel’s performance. See State v. Garcia, 133 Ariz. 522, 652 P.2d 1045 (1982). More recently, a two-pronged test for ineffective assistance of counsel has been employed. The first prong of this test originally required minimal competence in representation. State v. Watson, 134 Ariz. 1, 4-5, 653 P.2d 351, 354-55 (1982). Following Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we have recently modified the first prong to require “deficient representation.” State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985). There is deficient representation only if, after examining all the circumstances existing at the time of the alleged act of ineffective assistance, we conclude that counsel’s actions fell below objective standards of reasonable representation measured by prevailing professional norms. Id. The defendant must specify the acts or omissions allegedly constituting ineffective assistance. Strickland v. Washington, supra, — U.S. at-, 104 S.Ct. at 2066, 80 L.Ed.2d at 694. The accused must also overcome a “strong” presumption that the challenged action was sound trial strategy under the circumstances. State v. Nash, supra, 143 Ariz. at 398, 694 P.2d at 228; Strickland v. Washington, supra, — U.S. at-, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 694. Disagreements in trial strategy will not support a claim of ineffective assistance so long as the challenged conduct has some reasoned basis. State v. Meeker, 143 Ariz. 256, 260, 693 P.2d 911, 915 (1984); State v. Prince, supra, 142 Ariz. at 260, 689 P.2d at 519. The second prong of our ineffective assistance of counsel test requires that there be a “reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Lee, 142 Ariz. 210, 214, 689 P.2d 153, 157 (1984) (quoting Strickland v. Washington, supra, — U.S. at-, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). In Lee, we defined a “reasonable probability” as less than “more likely than not but more than a mere possibility.” State v. Lee, supra. According to Strickland, supra, this is a sufficient probability of a different result that it indicates serious breakdown in the adversarial process which, in turn, undermines our confidence in the actual outcome of the case. Strickland, supra, — U.S. at-, 104 S.Ct. at 2069-70, 80 L.Ed.2d at 699-700. We must also discuss the application of these standards. We have held that the first prong, the Watson standard of “minimal competence,” is to be applied prospectively to cases tried or pending on appeal after the effective date of the Watson decision (October 18, 1982). See State v. Nunez, 135 Ariz. 257, 660 P.2d 858 (1983). In Nash, we did not expressly announce whether this modified standard was to be applied retroactively or only prospectively. See State v. Nash, supra, 143 Ariz. at 399, 694 P.2d at 229. As to the second prong, in State v. Lee we announced that we would apply that standard retroactively to Watson cases, but not to the pre-Watson “farce, sham or mockery” cases. See State v. Lee, supra, 142 Ariz. at 219, 689 P.2d at 162 n. 5; see also State v. Goswick, 142 Ariz. 582, 586, 691 P.2d 673, 677 (1984) (standard applied retroactively to a Watson era case). Petitioner asserts that the modified first prong of our test for ineffective assistance of counsel announced in Nash should be applied retroactively to his case, which arose under the unmodified Watson standard. We disagree. There is no constitutional requirement that a judicial decision announcing new constitutional guidelines be applied prospectively or retroactively. See Link-letter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601, 608 (1965); State v. Dosztal, 144 Ariz. 242, 243, 697 P.2d 325, 326 (1985). To determine whether such new constitutional principles should be applied retroactively, a court must consider: (a) the purpose to be served by the new standards; (b) the extent of reliance by law enforcement authorities on the old standards; and (c) the effect on the administration of justice of a retroactive application of these standards. See Solem v. Stumes, — U.S.-,-, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579, 586 (1984); State v. Dosztal, supra. Complete retroactivity is most appropriate where a new constitutional principle is designed to enhance the accuracy of criminal trials. Solem v. Stumes, supra, — U.S. at -, 104 S.Ct. at 1342, 79 L.Ed.2d at 587; State v. Dosztal, supra, 144 Ariz. at 244, 697 P.2 at 327, (retroactive application most appropriate where it affects the integrity of the fact-finding process or otherwise there is a clear danger of convicting the innocent). Similarly, one important aim of standards requiring effective assistance of counsel is to insure that the state’s case is subjected to meaningful adversarial testing so that the innocent are not convicted. See Strickland v. Washington, supra, — U.S. at-, 104 S.Ct. at 2069, 80 L.Ed.2d at 699-700. We do not believe, however, that retroactive application of the Nash standard is warranted. We can find no cases wherein any court has decided whether or not to apply the Strickland standards retroactively to a post-conviction case. Cf. Ricalday v. Procunier, 736 F.2d 203 (5th Cir.1984) (Strickland applied to a case pending on appeal); Ex parte Daniel, 459 So.2d 948 (Ala.1984) (Strickland applied to a case pending on appeal). Many courts have applied standards relating to effective assistance of counsel only prospectively. See State v. Nunez, supra; Seales v. State, 580 S.W.2d 733 (Mo.1979) (“minimal competence” standard applied prospectively); Phillips v. State, 650 P.2d 876 (Okla.Cr.App.1982) (“minimal competence” standard applied prospectively); cf. Fields v. United States, 466 A.2d 822, 826-28 (D.C.App.1983) (inappropriateness of applying new standards relating to effective assistance of counsel retroactively to post-conviction cases). The purpose of the Nash modification of the first prong of our ineffective assistance of counsel test was to provide a “more objective” standard for determining attorney performance and to insure uniformity between state and federal standards in this area. State v. Nash, supra, 143 Ariz. at 397, 694 P.2d at 227. We noted in Nash, however, that the modified and unmodified standards were “similar.” Id. Precisely because the differences between these standards is scarcely outcome determinative, we find no compelling need to apply the newly modified standard to the present case. See Strickland v. Washington, supra, — U.S. at-, 104 S.Ct. at 2069, 80 L.Ed.2d at 699 (cases decided under different standards need not be reassessed in the light of the changes in the test for ineffective assistance of counsel); Trapnell v. United States, 725 F.2d 149, 153 (2nd Cir. 1983) (after years of applying the “farce, sham and mockery” and “minimal competence” tests, court has never found a case that turned on the choice of standard). Because we do not believe that application of the newly modified standard is warranted, given the burden on the administration of justice of reassessing cases already decided under the unmodified standard, we decline to apply it retroactively. We shall instead apply the Nash modification prospectively — as we did in announcing the Watson standard — to cases tried or pending on appeal after the effective date of the Nash decision (January 9, 1985). We therefore find no error in the application of the unmodified Watson first prong in this ease. II. THE TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL IN CAPITAL SENTENCING PROCEEDINGS The requirement of effective assistance of counsel applies to the sentencing phase of a capital case. State v. Roscoe, 145 Ariz. 212, 224, 700 P.2d 1312, 1324; State v. Carriger, 132 Ariz. 301, 645 P.2d 816 (1982). In Carriger, we stated that counsel displays “incompetent representation” — the first prong of our test — when he fails to “challenge the admission of aggravating evidence where reasonably possible and to present available pertinent mitigating evidence.” State v. Carriger, supra, 132 Ariz. at 304, 645 P.2d at 819; State v. Roscoe, supra, 145 Ariz. at 224, 700 P.2d at 1324. As to the second prong of our test, petitioner contends that to show ineffective assistance of counsel in capital cases, there should be no requirement of prejudice. The United States Supreme Court, however, has required a showing of prejudice. In Strickland v. Washington, supra, the Court announced that the defendant must show that: there is a reasonable probability' that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence— would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. — U.S. at -, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. We have similarly required such a showing of prejudice in capital sentencing proceedings. See State v. Roscoe, supra, 145 Ariz. at 147-148, 700 P.2d at 1326-1327; State v. Carriger, 143 Ariz. 142, 148, 692 P.2d 991, 997 (1984). We reject petitioner’s contention. III. TRIAL COUNSEL WAS NOT A “NEUTRAL OBSERVER” Proof of prejudice is, however, unnecessary under certain circumstances in an ineffective assistance of counsel case. If the defendant is denied counsel at a critical stage of trial or if counsel fails to subject the state’s case to meaningful adversarial testing, then prejudice is presumed. See United States v. Cronic, — U.S. -, -, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657, 668 (1984); State v. Nash, supra, 143 Ariz. at 398-99, 694 P.2d at 228-29. It is clear that if counsel act as a neutral observer, then prejudice will be presumed. State v. Carriger, supra, 132 Ariz. at 304, 645 P.2d at 819. Petitioner contends that trial counsel acted as a neutral observer. This is not a fair description. Trial counsel challenged two of the three aggravating circumstances found by the court. Counsel also argued for the mitigating circumstances of petitioner’s age, impaired mental condition, good character, close family ties, and his associations at the time of the crime. As to this last mitigating circumstance, petitioner’s attorney argued that Matthew Leisure was a bad influence who induced petitioner to commit some violent crimes. Petitioner’s mother and father were presented as character witnesses at the presentence hearing. Numerous witnesses were contacted by trial counsel and synopses of interviews with six of petitioner’s friends were incorporated into the presentence report. There were only two viable mitigating circumstances which trial counsel failed to present to the trial judge. Because petitioner’s codefendants had not been sentenced at the time of his sentencing, the trial judge did not consider in mitigation the lesser sentences given to petitioner’s codefendants. It is unclear whether the trial judge considered petitioner’s confession as mitigating evidence of his cooperation with the police. The trial judge was, however, undoubtedly aware of petitioner’s confession. We hold these omissions to be harmless error in this case. (See our discussion of these mitigating factors, post at 708-710). The present case is plainly distinguishable from other cases where we have presumed prejudicial ineffective assistance of counsel. See State v. Schultz, 140 Ariz. 222, 223-24, 681 P.2d 374, 375-76 (1984) (defense counsel admitted that he failed to interview from 20 to 30 witnesses); State v. Perkins, 141 Ariz. 278, 295, 686 P.2d 1248, 1265 (1984) (substitute counsel at sentencing, after stating he was unfamiliar with the case, had nothing to say on defendant’s behalf); State v. Cruz, 137 Ariz. 541, 548-50, 672 P.2d 470, 477-78 (1983) (counsel refused to actively participate in trial after his motion to disqualify the judge was refused); State v. Carriger, supra, 132 Ariz. 303, 645 P.2d 818 (counsel refused to present any evidence or otherwise participate at sentencing); State v. Myles, 389 So.2d 12, 30 (La.1979) (counsel’s tepid and virtually nonexistent representation at sentencing consisted of not challenging the alleged aggravating circumstances, mentioning briefly only one mitigating circumstance where others existed, and generally acting like a neutral observer). Cf. State v. Smith, 140 Ariz. 355, 681 P.2d 1374 (1984) (prejudice presumed because of the “excessive if not crushing” caseload imposed on public defenders in Mohave County). IV. THE STANDARD OF REVIEW IN RULE-32 PROCEEDINGS The trial judge who originally sentenced petitioner to death presided over his rule-32 hearing. See 17 A.R.S. Rules of Criminal Procedure, rule 32.4(c). Petitioner asserts that the trial court used the wrong standard of review in denying his rule-32 petition. We disagree. According to petitioner, the trial judge used the subjective standard that the evidence presented would not have changed his mind. The correct, objective standard is whether counsel (1) displayed incompetent representation, and (2) whether but for this incompetent representation there was a reasonable probability that the death sentence would not have been imposed. See State v. Watson, supra; State v. Lee, supra. The trial court never used language that would suggest this confusion in stating its verdict. Petitioner does not refer to any other evidence that would support such a claim. We find no error. V. THE PROBATIVE VALUE OF THE TRIAL COURT’S FINDINGS AT THE RULE-32 HEARING Petitioner contends that the trial court’s finding, that the evidence at the rule-32 hearing did not establish ineffective assistance of counsel, is entitled to little or no weight. Petitioner incorrectly cites Strickland v. Washington, supra, for this proposition. In Strickland, a state prisoner filed a federal habeas corpus petition in federal court alleging denial of his right to effective representation in a state criminal trial. Id. - U.S. at -, 104 S.Ct. at 2061-62, 80 L.Ed.2d at 687-88. The Supreme Court held that a federal judge correctly gave little weight to the testimony of a state trial judge regarding his subjective mental processes in imposing sentence. The court nowhere intimates that a trial court’s objective determination, that the evidence does not establish a prima facie case for ineffective assistance of counsel, was not entitled to significant deference. The trial judge is present at the trial and can better evaluate the cogency of evidence. The trial judge can also better assess the relationship between counsel’s defective performance and the verdict. See Reeves v. Markle, 119 Ariz. 159, 163, 579 P.2d 1382, 1386 (1978). We reject petitioner’s contention. VI. FAILURE TO CHALLENGE AGGRAVATING CIRCUMSTANCES The trial court found three aggravating circumstances associated with the murder. Specifically, the trial court found that the murder was committed in an especially heinous, cruel or depraved manner, A.R.S. § 13-703(F)(6); that the murder was committed for pecuniary gain, A.R.S. § 13-703(F)(5); and that petitioner had been convicted of an offense for which a life sentence was imposable, A.R.S. § 13-703(F)(1). Trial counsel challenged the first two aggravating circumstances. Petitioner alleges, however, that it was incompetent representation not to challenge the last mentioned aggravating circumstance. Petitioner does not dispute that he was convicted of robbery. He does not attack the validity of his confession to this crime, nor his subsequent plea of guilty. Petitioner does not deny that a life sentence was imposable for robbery. See A.R.S. §§ 13-641, 13-643 (repealed in 1978). We find no error. VII. FAILURE TO PRESENT ADDITIONAL EVIDENCE OF — AND/OR ARGUE FOR-MITIGATING CIRCUMSTANCES (A) Mental Condition A.R.S. § 13-703(G)(1) provides that it shall be a mitigating circumstance that [t]he defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired ... [even if] not so impaired as to constitute a defense to prosecution. Petitioner contends that trial counsel acted unprofessionally by failing to order a psychological examination and present evidence of petitioner’s impaired mental capacity at the time of the crime. We disagree. Petitioner specifically informed counsel before trial that he did not want to undergo a psychological examination because he did not want someone prying into his mind. Petitioner never indicated to defense counsel any time thereafter that he changed his mind about this decision. The Supreme Court has indicated that an attorney’s decisions concerning representation can properly be influenced by his client’s wishes. See Strickland v. Washington, supra, — U.S. at-, 104 S.Ct. at 2066-67, 80 L.Ed.2d at 695-96. A defense attorney’s deference to his client is especially appropriate where the defendant has a privacy interest at stake. Cf. 17 A.R.S. Rules of Criminal Procedure, rule 15.2(a)(8) (defendant cannot be forced to submit to a psychiatric or psychological examination). Defense counsel is obligated to insure that his client is aware of the consequences of such a decision. Petitioner has not, however, shown that trial counsel failed to render adequate advice regarding this decision. Additionally, the record reveals that trial counsel suggested to the trial court at sentencing that a psychiatric examination of petitioner would be helpful in deciding punishment. Trial counsel conceded, however, that failure to order such an examination would likely not constitute reversible error. The trial judge rejected this suggestion. Finally, petitioner was examined by Dr. Thomas O’Brien, a psychiatrist, who testified for the defense at the rule-32 hearing. The unsavory portrait of petitioner that emerges from Dr. O’Brien’s testimony is that of a remorseless, bullying sociopath who victimizes others merely for the macho thrill of proving his “superiority” to his victims and his contempt for society’s laws. According to Dr. O’Brien, petitioner killed for the status he received by being able to escape the consequences of his actions. Thus, petitioner bragged about stealing money from his own family because he was able to get away with the theft. We would be reluctant to find ineffective assistance for failure to present this evidence because of its obvious countervailing tactical dangers for petitioner. It is clear, at any rate, that petitioner has failed to prove any prejudice due to the failure to admit this evidence. There is no reasonable probability that it would establish a mitigating circumstance. The existence of a mere character or personality disorder like sociopathy is not alone sufficient to constitute a mitigating circumstance. State v. Richmond, 114 Ariz. 186, 197-98, 560 P.2d 41, 52-53 (1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977), reh’g denied, 434 U.S. 1323, 98 S.Ct. 8, 54 L.Ed.2d 34 (1977) . Such psychiatric evidence should be considered by the trial judge, however, because it may suggest some reason other than the nature of the disorder why the defendant should receive leniency, including a difficult family history. See State v. McMurtrey, 136 Ariz. 93, 102, 664 P.2d 637, 646 (1983), cert. denied, — U.S.-, 104 S.Ct. 180, 78 L.Ed.2d 161 (1983). The trial judge may refuse to find a mitigating circumstance so long as he considers this evidence. See State v. Vickers, 129 Ariz. 506, 516, 633 P.2d 315, 324-25 (1981). After hearing evidence concerning petitioner’s psychological examination, the trial court concluded that this evidence did not estab lish a mitigating circumstance. The record supports this conclusion. Dr. O’Brien testified that he could find no physiological cause for petitioner’s sociopathy. See State v. Brookover, 124 Ariz. 38, 41-42, 601 P.2d 1322, 1325-26 (1979) (physiologically caused character disorder is sufficiently substantial to warrant leniency). There was also testimony that petitioner’s home environment was considerably more normal than the usual environment that produces sociopathic personalities. The most notable similarity between petitioner’s home environment and a typical sociopath’s upbringing is that petitioner’s parents had high expectations for their children. There is, however, no evidence that petitioner was abused as a child. The record suggests that petitioner was raised in a relatively stable home environment. The psychiatrist could not explain why the other children in the family did not display the violent and destructive tendencies shown by petitioner. According to the presentence report, petitioner simply rejected the basic support systems of a caring family, close family friends and community service agencies for a life of crime. The instant facts are clearly distinguishable from those in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). There, the defendant was not supervised by his alcoholic mother and was cruelly beaten by his father. Id. at 107, 102 S.Ct. at 872-73, 71 L.Ed.2d at 6. The present case is also clearly distinguishable from those cases in which this court has found the accused’s mental condition to be a mitigating circumstance. See State v. Graham, 135 Ariz. 209, 213, 660 P.2d 460, 464 (1983) (21-year-old defendant without any prior violent offenses committed murder while his reasoning ability was clouded by drugs, a drug habit that began with prescription drug usage at the age of seven); State v. Arnett, 125 Ariz. 201, 608 P.2d 778 (1980) (defendant was homosexually assaulted as a child and had a dismal home environment). Such evidence of a troubled childhood is entitled to greater weight when the offender is a minor than when he is an adult. See Eddings v. Oklahoma, supra, 455 U.S. at 115, 102 S.Ct. at 876, 71 L.Ed.2d at 11; State v. Clabourne, 142 Ariz. 335, 348, 690 P.2d 54, 67 (1984) (defendant was 20 at the time of the crime); State v. Gretzler, 135 Ariz. 42, 58, 659 P.2d 1, 17 (1983) (defendant was 22 at the time of the crime). In the present case, petitioner was 19-72 years old at the time of the crime. He was also deemed mature for his age by the trial court. We see no reasonable possibility that this evidence would establish a mitigating circumstance. Cf. Strickland v. Washington, supra, — U.S. at-, 104 S.Ct. at 2071, 80 L.Ed.2d at 701 (failure of counsel to present psychiatric testimony that established that defendant was under considerable emotional stress that did not rise to the level of a serious emotional disturbance insufficient to show prejudice given the impressive aggravating factors present in the case). We find no ineffective assistance of counsel. (B) Age Defense counsel argued that petitioner’s age should be considered as a mitigating circumstance. See A.R.S. § 13-703(G)(5). Petitioner alleges defective representation because his attorney did not introduce psychological evidence to prove petitioner’s immaturity. At the rule-32 hearing, Dr. O’Brien testified that petitioner was immature. Despite this testimony, the trial judge reaffirmed his earlier ruling that petitioner was mature for his age and that age was not a mitigating circumstance. Because we find no reasonable probability that admission of this evidence would have changed the result in sentencing petitioner, we believe there was no ineffective assistance of counsel. Age is entitled to great weight as a mitigating circumstance, especially if the defendant is a minor. See Eddings v. Oklahoma, supra, 455 U.S. at 115, 102 S.Ct. at 877, 71 L.Ed.2d at 12 (mitigating circumstance that defendant was 16 years old and several years less mature than his chronological age); State v. Valencia, 132 Ariz. 248, 250-51, 645 P.2d 239, 241-42 (1982) (mitigating circumstance that defendant was 16 at the time of the offense warrants reducing sentence of death to life imprisonment). There is a special concern in such cases that the defendant “lacked substantial judgment in committing the crime” [because of his youth]. State v. Johnson, 131 Ariz. 299, 305, 640 P.2d 861, 867 (1982). Petitioner’s youth is not, however, a substantial mitigating factor. Petitioner was adjudged mature by the trial judge. See State v. Gillies, 135 Ariz. 500, 513, 662 P.2d 1007, 1020 (1983) (defendant’s maturity lessens age as a mitigating circumstance). A court may also consider a defendant’s age in the light of his prior criminal history. State v. Roscoe, supra, 145 Ariz. at 148, 700 P.2d at 1327; State v. Graham, supra, 135 Ariz. at 213, 660 P.2d at 464 (defendant’s prior record revealed no predisposition toward violent crime); State v. Ceja, 126 Ariz. 35, 38, 612 P.2d 491, 494 (1980) (defendant’s prior record revealed no tendency toward violent crime). Petitioner had previously been convicted of armed robbery at the age of 17. Four days before the murder in this case, petitioner participated in a similar armed robbery, kidnapping and attempted murder with codefendant Matthew Leisure. See State v. Gerlaugh [Memorandum Decision, No. 1 CA-CR 5309, filed June 10, 1982]. Petitioner and Leisure forcibly entered the car of Tobin Gentry at gunpoint. After driving to an isolated desert location, the victim was forced to lie on his stomach. Petitioner told Leisure to “do a good job, make sure” and Leisure then pumped four bullets into the victim’s back. Additionally, petitioner’s murder was not a hasty impulsive act, but involved considerable deliberation and cruelty. See State v. Libberton, 141 Ariz. 132, 140, 685 P.2d 1284, 1292 (1984); State v. Gillies, supra, 135 Ariz. at 513, 662 P.2d at 1020; cf. Eddings v. Oklahoma, supra, 455 U.S. at 106, 102 S.Ct. at 872, 71 L.Ed.2d at 5 (murder involved an impulsive act). Petitioner asserts that because of his youth he is a passive nonaggressive individual, who is easily influenced by others. He attributes the instant crimes to the psychologically dominating force of codefendant Matthew Leisure. According to the testimony of Dr. O’Brien, however, petitioner had a history of associating with wild companions. Petitioner sought out the company of lawbreakers for the thrill of hurting others and then escaping the consequences of his actions. The trial court specifically found that petitioner was the leader and not a follower in the commission of the murder. We find no reasonable probability that petitioner’s age would be a mitigating circumstance sufficiently substantial to outweigh the aggravating circumstances of this horrible offense. There was, accordingly, no prejudice shown and no ineffective assistance of counsel. (C) Intoxication Petitioner contends that defense counsel rendered ineffective assistance by failure to argue for petitioner’s alleged intoxication at the time of the crime as a mitigating circumstance. Petitioner’s intoxication was brought to the attention of the court. There were a number of references to petitioner’s alleged intoxication in the presentence report. Also included in this report was a brief letter from petitioner to the judge in which he claims that he would never have committed the crimes were it not for his intoxication. The only evidence presented at trial of petitioner’s intoxication was that petitioner and his co-defendants had a few drinks at Shirley Jones's house before the murder, and petitioner’s statement that he had consumed one and one-half cases of malt liquor before arriving at her house. There was, however, no evidence to corroborate petitioner’s self-serving statement that he had consumed such a great amount of liquor. Shirley Jones testified that petitioner never mentioned drinking the malt liquor. She also testified petitioner did not appear intoxicated when he left her house shortly before the murder. In their statements to the police, neither of petitioner’s codefendants mentions petitioner’s consumption of the malt liquor. Dr. O’Brien testified that it would be consistent with petitioner’s personality to exaggerate the amount of liquor he consumed. Dr. O’Brien further stated that he could form no opinion as to whether alcohol significantly impaired petitioner’s mental condition on the night of the crime. On appeal, petitioner has produced no new evidence on the critical issue as to whether petitioner consumed sufficient liquor to suffer significant mental impairment. The trial court in the rule-32 hearing acted well within its discretion in rejecting this unsubstantiated claim of intoxication. State v. Gillies, 142 Ariz. 564, 571, 691 P.2d 655, 662 (1984); State v. James, 141 Ariz. 141, 148, 685 P.2d 1293, 1300 (1984); State v. Gillies, supra, 135 Ariz. at 515, 662 P.2d at 1022; State v. Jordan, 126 Ariz. 283, 289, 614 P.2d 825, 831-32 (1980). We conclude that there was no ineffective assistance of counsel. (D) Evidence of Good Character Petitioner first contends that trial counsel failed to contact three character witnesses. The record does not support this contention. Although trial counsel could not specifically recall contacting these witnesses, he did state that it was his practice to do so. One of these witnesses admitted that someone from trial counsel’s office had contacted her. The other witnesses did not testify that they had not been contacted by trial counsel. Petitioner has simply failed to sustain his burden of showing that trial counsel failed to interview these witnesses. Petitioner also asserts that trial counsel acted incompetently by not calling these character witnesses. It appears that trial counsel made a tactical decision not to present these witnesses. ' Trial counsel stated at the rule-32 hearing that due to the serious aggravating circumstances in this case, he did not want to present witnesses who would say nothing more than that petitioner was generally a good person. The probative value of this character evidence is also, at best, unclear. Ramona Button testified at the rule-32 hearing that over a three-year period petitioner occasionally was a babysitter for her infant daughter. She further averred that petitioner never displayed any violent tendencies. It is not clear from the record, however, whether this babysitting was only a sporadic occupation or a steady job. Inez Sanders, a friend of the Gerlaugh family, testified that petitioner babysat for her two retarded nephews during one of his visits to her California home. Most of her association with petitioner, however, dates back from five to eight years before the crimes in this case. Bertha Parkhurst, another family friend of the Gerlaughs, recounted how petitioner cared for her pedigreed dogs and accompanied her to dog shows. Most of this activity, however, occurred at least from three to four years before the instant crimes. By contrast, trial counsel did present some character witnesses who may have been equally good. Petitioner’s parents testified at the sentencing hearing. Trial counsel also summarized interviews with six of petitioner’s friends from school and incorporated these interviews into the presentence report. We flatly reject petitioner’s assignment of error. The decision as to what witnesses should be called to testify on defendant’s behalf is a strategic decision that will not normally support a claim of ineffective assistance of counsel. See State v. Meeker, supra, 143 Ariz. at 262, 693 P.2d at 917; State v. Lee, supra, 142 Ariz. at 214, 689 P.2d at 157. In particular, the decision whether to call cumulative character witnesses is precisely the kind of strategic choice that will not establish reversible error. The lack of prejudice owing to this strategic decision is also clear. It is true that Mrs. Parkhurst averred that petitioner was “one of the finest kids in the world.” Mrs. Sanders similarly recounted an incident in which petitioner moved a snail off the sidewalk to prevent others from walking on it. These character witnesses avowed that petitioner was kind to animals and children. However, all were at a complete loss to explain the brutal insensitivity petitioner displayed in his admittedly active role in this murder, as well as in his other violent criminal acts. The judge at the rule-32 hearing found that there was insufficient evidence for the court to find good character as a mitigating circumstance. We conclude that petitioner has failed to show prejudice owing to the failure to present these character witnesses at trial. See Strickland v. Washington, supra, — U.S. at-, 104 S.Ct. at 2071, 80 L.Ed.2d at 701 (failure of counsel to present character witnesses whose testimony established only that they believed that defendant was a generally good person is insufficient to establish prejudice given the truly impressive aggravating circumstances of the crime). See State v. [Raymond] Tison, 129 Ariz. 546, 555, 633 P.2d 355, 365-66 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147, reh’g denied, 459 U.S. 1024, 103 S.Ct. 391, 74 L.Ed.2d 520 (1982); (trial court properly rejected evidence of good character as a mitigating circumstance in the light of defendant’s otherwise unexplained criminal conduct); State v. [Ricky] Tison, 129 Ariz. 526, 544-45, 633 P.2d 335, 353-54 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147, reh’g denied, 459 U.S. 1024, 103 S.Ct. 391, 74 L.Ed.2d 520 (1982) (same holding); State v. [Patrick] Poland, 144 Ariz. 388, 407, 698 P.2d 183, 202 (1985) (trial court can refuse to find character evidence as a mitigating circumstance if inconsistent with defendant’s criminal acts). There was no ineffective assistance of counsel, (E) Unequal Treatment of Codefendants Codefendant Joseph Encinas received a life sentence without possibility of parole for 25 years. Codefendant Matthew Leisure entered into a comprehensive plea agreement covering the crimes in this case as well as other crimes. Leisure pleaded guilty to a first degree murder charge arising from this case. He pleaded no contest to an unrelated first degree murder charge. Finally, he pleaded guilty to another unrelated charge of attempted murder. Leisure received two concurrent sentences of life imprisonment without possibility of parole for 25 years, as well as a sentence of 25 years, which was to be served consecutively to the two life terms. Petitioner asserts that his attorney failed to present evidence of the lesser sentences received by his codefendants as a mitigating circumstance. Because his codefendants were not sentenced until after sentence was imposed on petitioner, this information was unavailable at his sentencing. We find this contention of disparate treatment to be meritless as to codefendant Encinas because he was significantly less culpable than petitioner. In contrast to petitioner, Encinas was younger (18), a first offender, genuinely remorseful about his crimes, and played a much less active role in the commission of these crimes. See State v. Gerlaugh, supra, 135 Ariz. at 89, 659 P.2d at 642 (Cameron, J., concurring). As to codefendant Matthew Leisure, the trial judge at the rule-32 hearing found that any disparate treatment did not create a substantial likelihood that a more lenient sentence was warranted. The record supports this conclusion. Petitioner was adjudged by the trial court to be the most culpable party to these crimes, because he acted as the leader of his two accomplices and received all the proceeds of their criminal wrongdoing. There was also a sound basis in prosecutorial judgment for extending a plea offer to Leisure. The prosecutor testified at the rule-32 hearing that a plea offer was extended to Leisure only because his confession to the murder was suppressed. The only remaining evidence linking Leisure to the murder was a palm print lifted off Scott Schwartz’s automobile months after the homicide. In cases wherein we have found the lesser sentence received by a codefendant to be a mitigating circumstance, there was not such a sound basis for this disparate treatment. See State v. Lambright, 138 Ariz. 63, 76-77, 673 P.2d 1, 14 (1983), cert. denied, — U.S. —, 105 S.Ct. 267, 83 L.Ed.2d 203 (1984) (complete immunity given to an equally culpable co-defendant is “appalling” because the other codefendants had already confessed); State v. Smith, 138 Ariz. 79, 86, 673 P.2d 17, 24-25 (1983), cert. denied, — U.S. -, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984) (same holding for the other codefendant in Lambright) State v. Richmond, 136 Ariz. 312, 320, 666 P.2d 57, 65 cert. denied, — U.S. -, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983) (two accomplices to murder never charged). Additionally, in the only case wherein disparate treatment of an equally culpable codefendant has been deemed to be sufficiently substantial to warrant leniency, there were fewer aggravating circumstances and other substantial mitigating circumstances. See State v. Watson, 129 Ariz. 60, 63-64, 628 P.2d 943, 946-47 (1981) (only two aggravating circumstances and sentence mitigated because defendant was a model prisoner, had attempted to further his education while in jail, and because the victim who was being robbed precipitated the shootout with defendant that claimed the victim’s life). We find no prejudice to petitioner by the failure to present this argument. We accordingly find no ineffective assistance of counsel. (F) Cooperation with the Police Petitioner maintains that his cooperation with the police was a mitigating factor that trial counsel should have brought to the attention of the court at sentencing. The only evidence of petitioner’s cooperation with the police is that he confessed to the crimes charged. Given petitioner’s lack of remorse for his crimes and the other aggravating circumstances of this case, we believe that the trial court at the rule-32 hearing acted well within its discretion in rejecting this as a substantial mitigating factor sufficient to warrant re-sentencing. It was not reasonably probable that addition of this mitigating factor would prevent imposition of the death penalty in this case. The only case in which this court found cooperation with the authorities to be sufficiently substantial to warrant leniency is distinguishable because there were less serious aggravating circumstances and substantial mitigating circumstances not present in this case. See the discussion of State v. (Alonzo) Mata, 125 Ariz. 243, 609 P.2d 58, cert. denied, 449 U.S. 921, 101 S.Ct. 322, 66 L.Ed.2d 150 (1980), in State v. Gillies, supra, 135 Ariz. at 516, 662 P.2d at 1023, which contains information not found in the original opinion (defendant was an immature 18-year-old with no prior criminal record who did not commit the actual murder but was only an accomplice to the murder). In other cases involving less serious aggravating factors and/or more substantial mitigating factors, we have found the mitigating circumstance of cooperation with the police insufficiently substantial to warrant leniency. See State v. Bishop, 127 Ariz. 531, 622 P.2d 478 (1980) (one aggravating circumstance and mitigating circumstances that defendant had no prior criminal record and cooperation with the police were not enough to warrant leniency); State v. Adamson, 136 Ariz. 250, 665 P.2d 972 (1983) (two aggravating factors and mitigating factors of the length of the trial and cooperation with the police insufficient to call for leniency). A court is less likely to find sufficient prejudice in an ineffective assistance of counsel case if the conviction and the aggravating circumstances are strongly supported by the record than otherwise. See Strickland v. Washington, supra, — U.S. at-, 104 S.Ct. at 2069, 80 L.Ed.2d at 698; State v. Nash, supra, 143 Ariz. at 398, 694 P.2d at 228. In the present case, both the facts necessary for conviction and the aggravating circumstances are strongly supported by the interlocking confessions of petitioner and his codefendants and by other evidence as well. Additionally, the present murder, like the murder in Strickland, supra, involved overwhelming aggravating circumstances. There is no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances. There was no prejudice, and accordingly no ineffective assistance of counsel. VIII. DID TRIAL COUNSEL ACQUIESCE IN THE STATE’S RECOMMENDATION OF THE DEATH SENTENCE? Petitioner finally charges that trial counsel agreed at the end of the presentence hearing that his client should receive the death sentence. Petitioner misreads defense counsel’s statements by taking them out of context. We shall reconstruct the sequence of events. At the hearing, defense counsel criticized petitioner’s presentence report because it allegedly characterized this as an “open and shut” case for which the death penalty was required. Trial counsel urged the probation officers to make a more balanced presentation of the facts of this case, including the mitigating factors present, in their supplemental presentence report. Trial counsel was particularly critical of the report’s conclusion that his client had never shown any remorse either for this murder or for his prior robbery. During the presentence hearing, trial counsel remarked: [I]n both cases the presentence officers have indicated that they saw no particular remorse in my client for either of the acts, ... I think in the reports, in reading them, they show, obviously, that my client is accepting the responsibility for what occurred and what his acts were. But, again, they simply relate in their opinions a lack of remorse. The thing that concerned me about that is just to tell this Court that there is no remorse. I thought, surely, someone might want to go a little deeper in that or into that or are we just saying everyone must show remorse in the same way____ And, it seems to me a little superficial just to say that I see the facts of this case. It is a brutal killing. It is an atrocious killing and, therefore, he must receive the death penalty. I don’t know if the Court had any further questions about, you know, who is Darrick Gerlaugh, what brought him to this point to let me decide whether or not he should live or die. We know, obviously, one large mitigating circumstance that Mr. Gerlaugh has is his age. Trial counsel then complained that petitioner’s age is not mentioned as a mitigating factor in the presentence report. Counsel also urged that a psychiatric evaluation of petitioner could provide a more balanced view of his client’s personality and could determine without guesswork whether his client actually feels remorse. Counsel conceded, however, that petitioner was competent to undergo sentencing. He also agreed that failure to order psychiatric examination may not be reversible error, even if it would be useful in determining the appropriate sentence. Finally, trial counsel complained that even though there were persons who were available with testimony favorable to petitioner, whom the probation officers could have interviewed, they chose not to do so: I was also disturbed on the fact that there was no contact with my client’s family, no attempts to go out and see something more..... Many people are aware of the facts of this killing and are concerned about giving the Court further information____ But again I think we all have in the Probation Department as well as defense counsel [a duty] to give this Court as much information as they can about the person. And, really, those are the only comments I have at this time as far as just making the Court aware of my feelings as to whether or not the Court might want further information on this particular case based on the fact that I think that, you know, reading the probation report, it seems to be a terrible crime in that I have never seen anything this bad before. Everyone recommends death, therefore, obviously, there is nothing good to say. That’s the end of it. I just believe that as an officer of the Court, which I am, which the probation officers are, there is a little greater obligation there as opposed to simply saying, my client has no remorse ____ I, really, believe that if this Court thinks that it’s decision may tip, at all, on whether or not my client is simply so cold-blooded and committed a cold blooded murder or had a remorseful situation, whether it be right afterwards or at this point in time, then I think the Court might consider asking for psychiatric evaluation and testing. We do not believe that either of the above-underlined statements are intended to be a personal recommendation by counsel that his client should receive the death penalty. Given the context of utterance, we believe that the most plausible interpretation of these remarks is that they represent the “superficial” and “open and shut case” mentality he attributed to the probation officers. Certainly, the prosecutor and the trial judge do not register the kind of surprised reaction one would expect if a defense attorney began arguing against his client. We note that petitioner never suggested this interpretation of trial counsel’s remarks to the trial judge at the rule-32 hearing, so we do not have the benefit of the trial court’s determination of this issue. At most, one might interpret trial counsel’s remarks as an acknowledgment of the grevious nature of the offense. Trial counsel had already argued against two of the three aggravating circumstances, apparently without visibly impressing the trial judge. Neither trial counsel nor appellate counsel has raised a credible objection to the overpowering aggravating circumstances of this case. Under these circumstances, a tactical concession that this crime involved serious aggravating circumstances would be defensible. Even so, it is plain that trial counsel did not concede that there were no mitigating circumstances. He did in fact remind the trial court of its duty to give fair consideration to any and all mitigating circumstances. We find no ineffective assistance of counsel. Nor do we interpret counsel’s remarks as a frank confession of incompetence because he failed to present evidence regarding mitigating circumstances and attempted to shift this obligation to the probation officers. See State v. Schultz, supra, (defense counsel admitted that he failed to interview from 20 to 30 witnesses). It was counsel’s duty as advocate for his client to encourage the inclusion of material favorable to petitioner in the supplemental presentence report, as well as to argue for a more favorable recommendation from the probation officers. It also would have made tactical sense for trial counsel to attempt to discredit the presentence report out of fear that the trial judge might follow its recommendation. Additionally, we have already shown that there was no ineffective assistance of counsel in connection with the presentation of mitigating circumstances in this case. In closing, we note that trial counsel is certified as an expert in criminal law and has had considerable experience in death penalty cases. And, as the Supreme Court concluded, in Strickland v. Washington, supra, about counsel’s performance under similarly difficult circumstances: Although counsel understandably felt hopeless about ... [defendant’s] prospects ... nothing in the record indicates ... that counsel’s sense of hopelessness distorted his professional judgment. Counsel’s strategy choices [were] ... within the range of professionally reasonable judgment. Strickland v. Washington, supra, — U.S. at-, 104 S.Ct. at 2070-71, 80 L.Ed.2d at 701. There was no ineffective assistance of counsel. The order denying post-conviction relief is affirmed. HOLOHAN, C.J., GORDON, Y.C.J., and CAMERON and FELDMAN, JJ., concur. . One incident was recounted where his father put petitioner's hand into a flame when he was four years old. His father felt guilty about it afterward. There is, however, no allegation of any other child abuse. . Although petitioner’s family moved frequently because his father was in the military, there is no allegation or evidence of other substantial hardship. . According to Dr. O’Brien and the presentence report, petitioner quit very early in his various attempts at rehabilitation, including additional schooling and learning a trade. . By repeating trial counsel's charges against the probation officers, we do not mean to imply there was misconduct. We are merely reconstructing the sequence of events to show the proper context of trial counsel’s remarks. There is no issue before this court regarding the fairness of the presentence report.

HAYS, Justice. This is the fourth time appellant has presented his case to this court. In 1976, we affirmed appellant’s conviction for first degree murder, A.R.S. § 13-1105, and the sentence of death, A.R.S. § 13-703. State v. Jordan, 114 Ariz. 452, 561 P.2d 1224 (1976), vacated in part, 438 U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157 (1978) (Jordan I). In 1980, after resentencing, we affirmed appellant’s death sentence. State v. Jordan, 126 Ariz. 283, 614 P.2d 825, cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980) (Jordan II). In 1983, appellant petitioned for post-conviction relief. See 17 A.R.S. Rules of Crim.Proc., Rule 32. The case was assigned to Judge Howard Thompson. The court denied relief. On appeal, we remanded the case for an evidentiary hearing to determine if the original trial judge (Judge Harold Martin) became impermissibly involved in the plea negotiations. See State v. Jordan, 137 Ariz. 504, 672 P.2d 169 (1983) (Jordan III). Because we found impermissible judicial involvement in the plea negotiations, we ordered that appellant be resentenced. Appellant was sentenced by Judge Thompson to life imprisonment without possibility of parole for 25 years. Appellant moved for a new trial. The trial court, however, denied that motion. Appellant now appeals from the denial of his new trial motion (Jordan IV). We have jurisdiction. Ariz. Const. art. 6, § 5(3); A.R.S. §§ 13-4031, 13-4035. We affirm. We address one issue: Is it contrary to (former) A.R.S. § 13-454(B) to resentence appellant before another judge if the original trial judge is disqualified? FACTS In January 1975, appellant was convicted of first degree murder after a jury trial. In March 1975, appellant was sentenced to death. Pursuant to (former) A.R.S. § 13-454(A), which was in effect at the time of appellant’s conviction and original sentencing, the trial judge (Judge Martin) sentenced appellant. A.R.S. § 13-454(A) provided that: When a defendant is found guilty of or pleads guilty to first degree murder, the judge who presided at the trial or before whom the guilty plea was entered shall conduct a separate sentencing hearing to determine the existence or nonexistence of the circumstances set forth in subsection E and F, for the purpose of determining the sentence to be imposed. The hearing shall be conducted before the court alone. For cases arising on or after October 1, 1978, the death penalty statute was revised without material change and renumbered as A.R.S. § 13-703(B) [hereinafter “preamendment A.R.S. § 13 — 703(B)”]. In December 1978, appellant was resentenced in accordance with Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978). Appellant was again sentenced to death by Judge Martin. In 1982, the Arizona Legislature amended A.R.S. § 13-703(B) [hereinafter “post-amendment A.R.S. § 13-703(B)”] to allow a successor judge to conduct sentencing proceedings in the event of the death, resignation, incapacity, or disqualification of the trial judge. In State v. McDaniel, 127 Ariz. 13, 16, 617 P.2d 1129, 1132 (1980), we held that a successor judge did not have the authority under pre-amendment A.R.S. § 13-703(B) to resentence a criminal defendant to death after the trial judge was disqualified for cause from conducting a sentencing hearing. The defendant in McDaniel was accordingly retried. See also State v. Leslie, 136 Ariz. 463, 464, 666 P.2d 1072, 1073 (1983) (no abuse of discretion for trial judge to grant new trial pursuant to preamendment A.R.S. § 13-703(B) after original trial judge was disqualified). Citing McDaniel as authority, appellant contends that he is entitled to a new trial because the original trial judge was disqualified. Appellant also asserts that post-amendment A.R.S. § 13-703(B) does not apply to his case because it was not in effect at the time of his crime, his conviction, or his original sentencing. Appellant charges that it would be contrary to the intent of the legislature and the constitutional prohibition against ex post facto laws to apply this sentencing statute retroactively. The state, contends that the statute in effect at the time of appellant’s new trial motion, post-amendment A.R.S. § 13-703(B), should control. We need not decide which sentencing statute applies to the instant facts. Assuming without deciding that post-amendment A.R.S. § 13-703(B) does not control, appellant is still not entitled to a new trial. In State v. Valencia, 132 Ariz. 248, 645 P.2d 239 (1982), we said: Defendant contends that because the judge who tried the case is no longer able to sentence him, there must be a new trial, citing McDaniel, supra. If the death penalty were still imposable, we would agree. The statute, A.R.S. § 13-703, is limited to first degree murders, the only crime for which the death penalty may be imposed, and the judge has discretion only to impose either life imprisonment with no possibility of parole for 25 years or death. A.R.S. § 13-1105(C). Since we have decided below that the death penalty may not be im posed in this case, there is no necessity for a new sentencing hearing by the trial court. The evidence supports a conviction for first degree murder, and we have affirmed that judgment. We have reduced the punishment from death to life imprisonment, and there is no discretion to be exercised by the trial judge. We need not return the matter for resentencing or retrial. 132 Ariz. at 249-50, 645 P.2d at 240-41. The present case is controlled by the Valencia rationale. The conviction for first degree murder was supported by the evidence and has been affirmed on appeal. Appellant was sentenced to life without possibility of parole for 25 years, the lowest penalty prescribed by law for this offense. We find no reasonable possibility that appellant has suffered prejudice on these facts. Absent an abuse of discretion, this court will not disturb the denial of a new trial motion. See State v. Hankins & Satterfield, 141 Ariz. 217, 222, 686 P.2d 740, 745 (1984). There was no abuse of discretion. The denial of appellant’s new trial motion is affirmed. HOLOHAN, C.J., GORDON, V.C.J., and CAMERON and FELDMAN, JJ., concur.

OPINION BROOKS, Judge. This is an appeal from a summary judgment dismissing appellants’ (hereafter referred to as buyers) counterclaim for breach of a purchase agreement with prejudice and awarding attorney’s fees to appellee (hereafter referred to as seller). Seven issues are raised on appeal: 1. Whether the trial court’s dismissal of seller’s complaint as premature precludes seller from raising the same issues in defense of buyers’ counterclaim. 2. Whether seller’s premature filing of an action on the contract between the parties constitutes an anticipatory breach or a repudiation of the agreement. 3. Whether seller’s alleged inability to perform under the contract entitles buyers to partial summary judgment as to liability on their counterclaim. 4. Whether there were material issues of fact which precluded summary judgment in favor of seller on buyers’ counterclaim. 5. Whether the trial court committed reversible error in denying buyers’ motion to amend their pleadings. 6. Whether summary judgment denied buyers their right to a trial by jury under the seventh amendment to the United States Constitution. 7. Whether the trial court erred as a matter of law in awarding attorney’s fees to seller. FACTS On July 17, 1979, buyers entered into a written agreement with seller to purchase two apartment complexes located in Tucson, Arizona, depositing $100,000.00 in escrow with Commonwealth Land Title Insurance Co. (Commonwealth) as an earnest money deposit. The agreement provided, in part, as follows: Buyer has had a sufficient opportunity to inspect the Property, has, as of the date this Escrow is opened, conducted all surveys and inspections, including termite inspections, it deemed appropriate and necessary and finds the Property to be in a satisfactory condition, and acknowledges and agrees to accept the Property in its current condition. Buyer has, as of the date this Escrow is opened, obtained a preliminary title report on the Property and is satisfied as to the status of title to the Property. Buyer agrees to conveyance of the La Quinta project from Seller by General Warranty Deed, subject to those matters of record set forth in such preliminary title report, and to an Assignment of Lease as to the La Paz project. As part of the agreement, buyers had the right to extend the date for closing of escrow from October 16, 1979, for three successive thirty day periods on payment into escrow of $50,000.00 for each extension. The buyers chose to exercise their rights to all three extensions depositing an additional sum of $150,000.00 in escrow. Although the terms of the agreement then provided that escrow would close on January 16, 1980, the parties, by mutual agreement, extended the closing date an additional five days until January 21, 1980. Seller’s general partner testified that on January 18, 1980, he received information that buyers would be unable to obtain the anticipated financing and thus would be unable to fulfill the terms of the agreement which required an additional cash payment of approximately $3,900,000.00 at the close of escrow. Acting on this information, seller filed a multi-count complaint on January 18, 1980, commencing the instant action and requested the following alternative relief: A. For an order awarding seller the earnest money deposit together with interest accrued thereon; B. For specific performance of the agreement between the parties; C. For damages for breach of contract; D. For attorney’s fees and costs. The complaint was followed by a letter to Commonwealth dated January 21, 1980, to the effect that seller had been advised of buyers’ alleged inability to obtain the financing necessary to close escrow either on January 21 or in the near future and therefore: Seller hereby elects to cancel the escrow effective immediately following the expiration of close-of-escrow date and directs you upon such cancellation to pay the earnest money to Seller in accordance with the escrow instructions. On January 21, Commonwealth was prepared to issue the ATLA policy of title insurance required by the contract in accordance with the initial preliminary title reports which buyers had examined and approved. When buyers failed to perform or tender performance as of January 21, Commonwealth, in compliance with the escrow instructions, paid $51,588.89 to seller on January 22, 1980, and paid the remaining $200,533.33 the following day. Buyers filed an answer to seller’s complaint on March 20, 1980, denying any breach of the agreement and affirmatively alleging that seller was unable to perform because it could not deliver marketable title to the subject property due to a number of alleged encroachments, encumbrances and clouds on the title. Buyers also filed a counterclaim alleging that seller, by its action in filing the complaint, breached the agreement between the parties; that seller’s claims and demands were premature and contrary to the agreement, and that such conduct was wilful and malicious, entitling buyers to punitive damages and attorney’s fees. Buyers prayed: 1. For a declaration that the forfeiture of all earnest money be held null and void, and for return of all such earnest money; 2. For actual and punitive damages; 3. For attorney’s fees, costs and other incidental relief. Cross-motions for summary judgment were filed which resulted in the trial court’s dismissal of seller’s complaint without prejudice as premature and the dismissal of buyers’ counterclaim with prejudice. The court, in addition, awarded seller $5,200.00 in attorney’s fees. THE DISMISSAL OF THE COMPLAINT Buyers’ first argument is not entirely clear. Relying on Wilhelmi v. Des Moines Ins. Co., 68 N.W. 782 (Iowa 1896), buyers are presumably arguing that the dismissal of seller’s complaint as premature forever precluded seller from asserting any of the claims set forth in the complaint. Wilhelmi involved an insurance claim that resulted in a judgment for the plaintiff but was reversed on appeal for the reason that the action was premature. The plaintiff then filed a second action alleging that the first complaint had not been filed prematurely. The court held that where a judgment finally and conclusively determined that an action was brought prematurely the question could not be relitigated. Wilhelmi has no application to the case at hand; seller does not contest the trial court’s finding that the complaint was filed prematurely. Rather, this case is governed by the general rule that a dismissal without prejudice does not foreclose a later filing on the same cause of action. Edgar v. Garrett, 10 Ariz.App. 98, 456 P.2d 944 (1969). Accordingly, as seller could assert the same claims and raise the same issues in a subsequent action, the dismissal of the original complaint did not preclude seller from raising the same issues by way of a defense to the counterclaim at a time when the issues were no longer premature. ANTICIPATORY BREACH OF THE CONTRACT Buyers’ second argument is premised on the supposition that seller both intended and elected to terminate the contract by filing the complaint demanding forfeiture of the earnest money deposit. Relying on Jahnke v. Palomar Financial Corp., 22 Ariz.App. 369, 527 P.2d 771 (1974), buyers contend that the trial court therefore erred in dismissing its counterclaim because seller’s action amounted to an anticipatory repudiation of the contract thus relieving buyers of any further obligation to perform. In Jahnke, the seller of a hotel filed an action to enforce a forfeiture of all interests of the purchasers of the property. Basically the facts are that on November 10, 1972, the seller, after having repeatedly accepted late payments, sent a notice to the purchasers insisting upon compliance with the “time of the essence” clause in the purchase contract. The notice was not clear as to the date upon which the purchasers would be in default, but in any case it would not be sooner than December 11, 1972. On November 20, 1972, ten days after having sent the notice, the seller filed the complaint. The court held that the complaint was not timely filed in that the cause of action had not yet accrued. The court next addressed the issue of whether the purchaser’s failure to tender sums owing under the contract was fatal to his defense of waiver of the “time of the essence” clause. The court held that under the circumstances the purchaser had no such duty: The delinquent buyer, and through him his assignee, were offered a reasonable period (thirty days) by the notice requiring strict compliance within which to tender. After ten days had run, [seller] filed its complaint alleging that forfeiture had occurred and that it was entitled to possession. This formal act, apart from being premature as we have held, was an attempted election of remedies and equivalent to a pronouncement by [seller] that the contract was at an end; that the thirty day period provided for in the notice was abrogated, and that tender would be refused. 527 P.2d at 777. This case does not resolve the issue at hand. While seller filed the complaint prematurely and requested forfeiture of the earnest money, it also demanded ific performance of the contract and ex pressed a continuing willingness to perform: [P]laintiff [seller] has fully performed all of its obligations under the agreement and is prepared to consúmate the transaction in accordance with the agreement. An anticipatory repudiation of a contract is a breach of the promissor’s contractual duty before the time fixed for his performance has arrived. Corbin on Contracts §§ 941 and 959 (1960). The dispositive question then becomes whether seller’s action in filing the complaint was a repudiation of its obligation to perform. In Kleeb v. Burns, 5 Ariz.App. 566, 429 P.2d 453 (1967), Division 2 of this court held that in order for there to be an anticipatory breach of a contract there must be a positive and unequivocal manifestation on the part of the party allegedly repudiating that he will not render promised performance when the time fixed for performance arrives. In this case, seller filed a complaint which requested specific performance of the contract as well as forfeiture of the earnest money and damages. This alternative form of pleading does not itself establish a clear and unequivocal intent on the part of seller to terminate the contract. Moreover, given that seller’s letter to Commonwealth did not demand forfeiture of the earnest money deposit except in the event that the closing date expired without performance by buyers, it is apparent that seller was willing to perform as late as the date scheduled for the closing of escrow. THE COUNTERCLAIM I. Damages for breach of contract Buyers argue the trial court erred in dismissing the counterclaim for damages for loss of the bargain. Although buyers did not tender payment, nor offer to do so, they contend that seller could not deliver marketable title to the property because it was subject to easements and encumbrances and because the property itself was in disrepair as of January 21, 1980. Citing Sabin v. Rauch, 75 Ariz. 275, 255 P.2d 206 (1953), buyers conclude that seller’s inability to perform extinguished their obligation to tender further payment. Sabin involved an action for specific performance of a contract for the sale and transfer of real property. In that case the buyer refused to perform on the ground that the seller could not convey good and marketable title. Our supreme court first set forth the general rule: in the absence of express provision in the contract to the contrary, it is implied that the seller, when the purchaser meets his obligations under the contract, will convey a marketable title; and if it appears that he will be unable to meet this obligation, specific performance will be denied. 255 P.2d at 208. The court then defined the issue as whether there was a reasonable doubt that the buyer would be hampered in marketing the property since “a condition precedent to granting specific performance is that there exists no reasonable doubt that the buyer will not be hindered nor obstructed in marketing her property.” 255 P.2d at 208. This case does not resolve the issue at bench because Sabin is concerned only with the propriety of awarding specific performance, an equitable remedy. The question here is whether buyers are entitled to damages under their counterclaim resulting from seller’s alleged breach of the agreement, a remedy at law. Seller, on the other hand, primarily relies on three cases: Walker v. Estavillo, 73 Ariz. 211, 240 P.2d 173 (1952); Snyder v. Betsch, 56 Ariz. 508, 109 P.2d 613 (1941); and Steward v. Sirrine, 34 Ariz. 49, 267 P. 598 (1928). The court in each decision applied the rule: If vendor is able to make good title at the time stipulated for, he may not only maintain an action at law for damages by the purchaser, but may also sue to complete specific performance by the latter and recover the agreed consideration, and he is in default under such a contract only when the vendee has performed his part of the contract and made demand for a title which the ven dor is unable to furnish. added.) (Emphasis Walker, 240 P.2d at 176. At first glance, the rule would appear to be dispositive. The above cases are, however, factually at odds with the instant case. Those cases all involved the breach of installment contracts for the sale of real property in which the buyer agreed to make payments over a period of time at the end of which the seller agreed to deliver title. The seller had no duty to deliver title to the property until the buyer fulfilled his obligation; the buyer’s obligation was a condition precedent to the seller’s duty to transfer title. This case, on the other hand, concerns an agreement that the parties would concurrently perform on January 21, 1980; buyers would tender payment and seller would deliver the necessary documents. Historically, the courts held that two such promises were mutually independent and unconditional. This is no longer true. The courts now view two such promises as mutually dependent and conditional. Corbin § 663 at 177. The seller’s obligation to deliver title is conditioned on a tender of payment by the buyer, and the buyer’s duty to pay the price is conditioned upon the seller’s tender of title. In Glad Tidings Church v. Hinkley, 71 Ariz. 306, 226 P.2d 1016 (1951), our supreme court in dealing with a quiet title action brought by a seller against a buyer based on a contract for the sale and purchase of real property, adopted the following rule: A vendor must tender a deed or at least indicate that he is ready, willing and able to tender and deliver a deed upon receipt of payment as a condition to demanding payment of the price, and he cannot without such a tender or offer of tender declare a forfeiture or maintain a suit for payment. Accordingly, before either party can sue on a purchase/sale contract he must first put the other party in default by tendering or offering to tender performance. See McFadden v. Wilder, 6 Ariz.App. 60, 429 P.2d 694 (1967); 5 Williston on Contracts § 666A (3rd ed. 1961). Under this rule, a buyer who fails either conditionally or unconditionally to tender performance within the time provided by the terms of the earnest money agreement cannot ordinarily demand damages for failure of the seller to convey good title. Guillory Cory. v. Dussin Inv. Co., 272 Or. 267, 536 P.2d 501 (1975). Here, buyers neither tendered payment nor offered to tender. Under the above rule, seller, regardless of any defects existing in the title, was not placed in default and buyers could not maintain an action for breach of contract. Complicating matters further, however, the courts have recognized an exception to this rule which relieves the buyer of the obligation to tender performance where the seller has either refused to perform or is clearly unable to do so. See Kammert Bros. Enter., Inc. v. Tanque Verde Plaza Co., 102 Ariz. 301, 428 P.2d 678 (1967); Glad Tidings Church, 226 P.2d at 1021. Buyers contend that their failure to perform should be excused because seller was unable to deliver good and merchantable title at the time of closing. Given the resolution of this case on summary judgment, this court must view the facts in the light most favorable to buyers. Schmidt v. Mel Clayton Ford, 124 Ariz. 65, 601 P.2d 1349 (App.1979). Consequently, we will assume the truth of buyers’ allegations regarding the state of the title and seller’s inability to perform on January 21, 1980, in determining the applicability of the exception to this case. The decisions excusing tender by one party are based on the rationale that the law does not require the performance of a vain and useless act. See Eychaner v. Springer, 34 Colo.App. 412, 527 P.2d 903 (1974) [reservation of mineral rights made the title unmarketable]; Iannelli Bros., Inc. v. Muscarella, 30 A.D.2d 698, 291 N.Y. S.2d 851 (1968) [contract and deed uninsurable because the land description failed to describe an enclosed parcel]; Siegel v. Shaw, 337 Mass. 170, 148 N.E.2d 393 (1958) [property subject to a public easement for a sewer constructed and in place]. In each case the buyer had knowledge prior to the date set for tender that the seller would not be able to deliver a good title. Accord ingly the law did not mandate that the buyer engage in the useless ceremony of tendering payment. In this case, however, buyers conceded during oral argument to this court that they had no knowledge of the title problems as of January 21, and that they did not discover the existence of the alleged easements and encroachments until some time prior to the filing of their counterclaim in this action. Where the buyer has no advance knowledge of the seller’s inability to perform, the rationale of the above cases simply does not apply. A buyer’s contractual duty to tender performance for which seller gave consideration will not be rendered a vain and useless act by the buyer’s indulging in speculation as to the seller’s ability to perform. The law excuses buyer’s obligation only where the seller, as of the date set for performance, has clearly manifested his inability to perform. To decide otherwise would allow a buyer who has failed to timely tender payment to take advantage of a merely fortuitous occurrence. In Varacalli v. Williams, 8 Wash. App. 129, 504 P.2d 790 (1972), the court held that the exception excusing tender of payment by the buyer where the seller is unable to perform does not apply if the buyer had no notice of such inability at the time his performance was due. See also Guillory Corp., 536 P.2d at 505. Thus, buyers’ obligation to tender performance here was not excused. As a result, buyers have failed to put seller in breach, a condition necessary to a claim for damages. Finally we reach buyers’ contention that as of January 21, the building was not in the condition required under the contract which thereby excused buyers’ obligation to tender performance. Buyers argue that seller had the obligation to deliver the building in the same condition that it was on the date the parties entered escrow. During the period between the opening of escrow and January 21, 1980, buyers alleged that “problems” developed with the air conditioning units and on January 2, 1980, the City of Tucson threatened to condemn a building because of unsafe balconies. Buyers conclude that the building was in a “changed condition” as of January 21, and seller was therefore in breach of the agreement. Assuming, without deciding, that the condition of the building did not comply with the requirements of the contract, we do not find that this excused buyers from their obligation to tender or offer to tender performance prior to bringing an action on the contract. There is no evidence in the record that the alleged defects were incurable. II. Forfeiture of the earnest money deposit Relying on Vivian Arnold Realty Co. v. McCormick, 19 Ariz.App. 289, 506 P.2d 1074 (1973), buyers next argue that the trial court erred in denying their claim for return of the earnest money since seller never actually deposited the deed and assignment of lease in escrow. In Vivian, a buyer and a seller executed an escrow agreement providing that on a certain date buyer would tender the cash necessary for closing and seller would deliver the deed to the escrow agent. Neither party performed nor tendered performance and buyers brought an action for return of their earnest money deposit. Division 2 of this court affirmed the trial court’s ruling which voided the contract and ordered that the earnest money be returned to buyers based upon the court’s finding that both buyers and sellers breached their respective duties under the contract. Vivian Arnold is factually distinguishable from the instant case. As previously noted, seller expressed its willingness and readiness to deliver the closing documents into escrow upon payment by buyers and Commonwealth was prepared to issue the required ATLA insurance policy. As often mentioned in this opinion, however, buyers did nothing with respect to closing this escrow on January 21. No conditional or unconditional tender of the balance of the purchase price was made at that time or any other time. Pursuant to the specific terms of the agreement between the parties, the earnest money deposit was properly delivered to seller by Commonwealth. Paragraph 48 of the agreement between the parties provides: Failure to Close. In the event Buyer fails to perform all of its obligations necessary to close escrow at the Close of Escrow date, Seller shall be entitled to immediately cancel this Escrow by giving Notice of Immediate Cancellation to Buyer and Escrow Agent and by directing Escrow Agent to remit the earnest money deposit plus interest to Seller. THE ALLEGED MOTION FOR LEAVE TO AMEND Buyers contend that the trial court erred in denying their motion to amend the counterclaim. We first note that no motion for leave to amend, designated as such, was ever filed in the trial court. The only reference to such a request appears for the first time in the memorandum of points and authorities attached to buyers’ “Motion to Vacate and Set Aside Summary Judgment Dismissing Defendant’s Counterclaim”: Defendants further urge that the dismissal of Defendants’ counterclaim with prejudice and without leave to amend constituted an abuse of discretion. Clearly, the evidence before the Court established that Defendants have good and sufficient grounds for one or more causes of action against the Plaintiff and its “Escrow Agent” Commonwealth Land Title Insurance Company, including but not limited to breach of contract, rescission, mistake, fraud, deceit, misrepresentation, conversion and restitution. We are cognizant of the trial court’s duty to freely allow amendments to the pleadings. See Rule 15, Arizona Rules of Civil Procedure. Further, where an amended pleading is tendered and leave to amend should be granted under applicable principles, an adversary motion for summary judgment should not be granted before the amendment is filed and considered. The general admonition is stated in Rossiter v. Vogel, 134 F.2d 908 (2d Cir.1943): [WJhere facts appear in affidavits upon motion for a summary judgment which would justify an amendment of the pleadings, such amendment should not be prevented by the entry of a final judgment. 134 F.2d at 912. In the instant case, the request for leave to amend was apparently first urged after the motion for summary judgment had been submitted for decision, after the trial court had advised the parties that summary judgment would be entered and after the court’s subsequent entry of- a final judgment. No proposed amendment to the counterclaim was ever formally tendered. Under these circumstances, the request was addressed to the sound discretion of the trial court and we fail to perceive any abuse of discretion in the court’s refusal to vacate the judgment in order to allow the filing of an amended counterclaim. BUYERS’ RIGHT TO A TRIAL BY JURY Buyers argue that the trial court’s order dismissing their counterclaim violated their right to a jury trial as guaranteed by the seventh amendment to the United States Constitution. We find this argument to be frivolous. See Morrell v. St. Luke’s Medical Center, 27 Ariz.App. 486, 556 P.2d 334 (1976). AWARD OF ATTORNEY’S FEES Buyers claim that the trial court’s award of attorney’s fees to seller was improper as contrary to the applicable provision of the escrow agreement: In the event suit is brought or an attorney is retained by any party to this Agreement to enforce the terms of this Agreement or to collect any moneys due hereunder, or to collect money damages for breach hereof, the prevailing party shall be entitled to recover ... reim bursement for reasonable attorney’s fees ... incurred in connection therewith. Essentially, buyers argue that seller could not be the “prevailing party” because the court dismissed its complaint. In response, citing Ocean West Contractors, Inc. v. Hatec Const. Co., 123 Ariz. 470, 600 P.2d 1102 (1979), seller argues that it is the prevailing party because it has been allowed to retain the earnest money which was part of the relief sought in the complaint. We find that sellers were clearly the prevailing party. Although their complaint was dismissed, the trial court nevertheless ruled in their favor as counterdefendants when the counterclaim was dismissed. The central issue in the litigation at that point in time was whether buyers were entitled to damages including a return of the earnest money deposit and the trial court resolved the issue in favor of seller. Seller has also requested its attorney’s fees for this appeal and is entitled to recover such fees pursuant to the agreement between the parties. Seller shall file a statement of amount claimed for such fees with supporting affidavits in compliance with Rule 21(c); Arizona Rules of Civil Appellate Procedure, and this court’s decision in Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 673 P.2d 927 (App.1983). CONCLUSION For the foregoing reasons the judgment of the trial court is affirmed. MEYERSON, P.J., concurs.

OPINION BIRDSALL, Chief Judge. On April 26, 1983, appellee was stopped by Tucson police, having been observed making repeated lane changes and having been paced at 65 m.p.h. in a 40 m.p.h. zone. When appellee got out of his vehicle, the officer noted he had difficulty steadying himself, and detected a strong odor of intoxicants on his breath. The officer put him through a series of field sobriety tests, to which appellee consented, to determine whether appellee’s driving ability was impaired. When appellee performed poorly on these tests, he was arrested and taken to the station for an intoxilyzer test, which indicated a reading of .13 percent. Appellee was cited for speeding, crossing a lane divider, and driving while under the influence. Appellee moved in city court to suppress introduction of the results of several of the field sobriety tests, and following a hearing, his motion was granted. The state appealed this to superior court, which affirmed the suppression of all but the heel-to-toe test, which it ruled could be admitted. The state does not contest the suppression of defendant’s opinion of his level of intoxication. It does, on this appeal, contest the suppression of the written alphabet and numbers field sobriety tests. Appellee contends that suppression of the written alphabet and numbers field sobriety tests is correct in that appellee’s rights were violated by the failure to advise him of his Miranda rights before he consented to performing the tests. Appellee asserts that his performance on the tests amounted to self-incrimination, that he was essentially in custody and the tests amounted to statements in response to interrogation, and that his custodial detention status was confirmed by the testimony of the arresting officer that at some point prior to the completion of the tests he had formed the decision to arrest appellee, without communicating this decision to him. Appellee asserts that at that moment he was entitled to Miranda warnings and failure to give them should result in suppression of results following that point. We do not agree. The great majority of jurisdictions have held that field sobriety tests do not involve testimonial or communicative evidence. For that reason it is held in those cases that the Fifth Amendment is not violated by their use. See Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60 (1982), and People v. Ramirez, 199 Colo. 367, 609 P.2d 616 (1980). Ramirez, at 609 P.2d 620, n. 8, cites cases in the following jurisdictions which have held that roadside sobriety tests do not fall under provisions of the Fifth Amendment: California, Connecticut, Delaware, Illinois, Indiana, Iowa, Kansas, Montana, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee and Washington. The authority upon which these cases rely, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), accepts as correct cases holding fingerprinting, photographing, measurements, writing, voice identification, appearing in court, standing, walking or making gestures admissible. Schmerber, supra. Evidence which is testimonial or communicative is that which reveals the subjective knowledge or thought processes of the subject. Brennan, 438 N.E.2d at 64. Field sobriety tests do not involve either. In view of this holding we need not address the other issue presented by the appellant. The results of the tests are admissible. We remand to Tucson City Court for proceedings consistent with this opinion. Reversed and remanded. HOWARD and HATHAWAY, JJ., concur.

OPINION JACOBSON, Chief Judge. The primary issue on this appeal is when does the statute of limitations begin to run on an unwritten promise to pay money when no definite time is set for repayment. Belvin Brown filed a claim on April 1, 1981 against the Estate of Sebe Musgrove for $22,347.65 based upon an oral agreement which was allegedly entered into in 1962. This matter was tried to the court which entered judgment in favor of Brown on his claim. Following a denial of his motion for new trial, the personal representative filed a timely notice of appeal to this court. The estate has raised two issues on appeal: (1) whether the trial court abused its discretion in admitting the testimony of Brown in the face of the Dead Man’s Statute, A.R.S. § 12-2251; and (2) whether the claim based on an oral debt is barred by A.R.S. § 12-543, the applicable statute of limitations. We find that A.R.S. § 12-543 is a bar to this action and dispositive of this appeal. Therefore, we do not decide whether Brown’s testimony was properly admitted. This court must view the evidence in a light most favorable to upholding the judgment. Davis v. Tucson Arizona Boys Choir Society, 137 Ariz. 228, 669 P.2d 1005 (App.1983). So viewed, and assuming arguendo the admissibility of Brown’s testimony concerning his conversations with the decedent, the record reflects the following. The basis for Brown’s claim was an oral contract whereby Musgrove agreed to repay a debt owed Brown of $8,984, arising out of the sale of cattle owned jointly by Brown and Musgrove, from which Mus-grove received the proceeds. The parties agreed that payments on the debt would be made from time to time and that the principal would bear annual interest at the rate of 6%. The parties modified their agreement in 1972 to increase the interest rate to 8%. Musgrove made the following payments to Brown: $400 in December 1962; $500 in 1964; $500 in 1968; $750 in 1972; and $600 in 1974. Additionally, Mus-grove’s daughter, Ruth Naomi Stevens, paid Brown $1000 on March 1, 1978. However, there was no evidence that she paid this money as an agent of her father. To the contrary, the evidence was that she paid this money from her own bank account and that Sebe Musgrove strenuously objected to that payment. On appeal both parties agree that the statute of limitations applicable to this transaction is A.R.S. § 12-543, which provides in pertinent part: There shall be commenced and prosecuted within three years after the cause of action accrues, and not afterward, the following actions. 1. For a debt where the indebtedness is not evidenced by a contract in writing. ... The parties disagree as to when the cause of action accrued on the oral contract and thus triggered the running of the statute of limitations. The general rule is that a cause of action accrues whenever one person may sue another. Cheatham v. Sahuaro Collection Service, Inc., 118 Ariz. 452, 577 P.2d 738 (App.1978); Rogers v. Smith Kline & French Laboratories, 5 Ariz.App. 553, 429 P.2d 4 (1967). Brown characterizes the agreement as one which contemplated that demand would not be made until long into the future and thus the statute did not begin to run until demand was made. The estate characterizes the agreement to be payable on demand or an agreement which was silent as to repayment. The trial court stated: The court finds that there was an oral agreement between claimant and the decedent, that the decedent owed claimant $8,984 and that he would make payments on this indebtedness from time to time. It was also agreed that the principlal would bear interest at the rate of 6% per annum. In 1972 decedent agreed to pay 8% interest on the principal balance. There was ample consideration for each of these agreements. No demand was ever made upon decedent for full payment that was not withdrawn after decedent persuaded claimant to continue the same arrangement. Decedent never refused to pay. It appears that the trial court interpreted the agreement as one for the loan of money on demand without a fixed time for repayment. Further, the court appears to have implied that demand was a prerequisite for bringing suit. We first note that most of the trial court’s findings are mixed questions of law and fact or are legal conclusions. An appellate court is not restricted to construing the evidence most favorably to support such a judgment. Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 412 P.2d 47 (1966). Rather, this court may draw its own legal conclusions from facts found or inferred in a judgment of the trial court and is not bound by findings of the trial court in mixed questions of law and fact. Huskie v. Ames Bros. Motor and Supply Co., 139 Ariz. 396, 678 P.2d 977 (App.1984); Guirey, Srnka & Arnold, Architects v. City of Phoenix, 9 Ariz.App. 70, 449 P.2d 306 (1969). Brown’s testimony at trial as to the terms of the contract was, at best, confusing. Louis Pendergast, the only witness who corroborated the existence of a contract, contradicted Brown concerning the terms of that contract. Pendergast expressly testified that the parties agreed that the debt was to be repaid in two to three years. Reviewing the entire transcript and recognizing that the trial court apparently rejected Pendergast’s version of the contract, we find that the contract was indefinite as to the time for repayment and further that demand was not expressly made a condition precedent to the right to bring suit. We further conclude that there was no evidence that at the time the agreement was made in 1962 that the parties agreed to postpone repayment until long into the future. In fact, the first payment occurred only a few weeks following the initial agreement. Brown testified as to repayment as follows: Q. [By Mr. Baker]: Did you ever enter into any kind of agreement with Mr. Musgrove regarding your half of that money? A. Yes. Mr. Musgrove wanted to pay me interest on it, he offered to pay me 6%. That’s what we was paying at the bank at that time and I agreed to that. Q. You heard Mr. Pendergast regarding a meeting; with what you are testifying to now, was that the same meeting? A. Yes. Q. Where did that take place? A. Not 6% at that time Buster was there with us, before I got ready to move, before I move, you see. Mr. Mus-grove told me he’d give me 6% before I left there and says, I will pay you some every year on it, but never was direct date from the time Mr. Musgrove and myself talked that he would pay me, never did come no direct date. Q. Mr. Brown, to your understanding in 1962, when this agreement was made, what was your understanding of when all of the money would be paid? A. Never was no definite date set, he said he would pay me 6% interest, pay me a little whenever he could. Because back in them days, it was really tough for Mr. Musgrove to make a go. There was no testimony that in 1962 the parties specifically made demand by Brown a condition precedent to his right to repayment. We, therefore, treat this contract as one which was due upon demand or a contract which is silent as to repayment. In either case, we hold the cause of action would have accrued at the time the agreement was made in December, 1962. If we consider the agreement to be a demand obligation, while we find no Arizona case law directly on point, there is a substantial body of law in other jurisdictions that a demand obligation is due immediately without demand and the statute of limitations commences to run at once. See e.g., Schnug v. Schnug, 203 Kan. 380, 454 P.2d 474 (1969); Stock v. Meissner, 209 Neb. 636, 309 N.W.2d 86 (1981); Hopper v. Hemphill, 19 Wash.App. 334, 575 P.2d 746 (1978). See generally Annot. 159 A.L.R. 1021 (1945). The rationale for this rule is to prevent a creditor from extending the limitations period by failing to make a demand. This rule would, of course, not be applicable where the parties expressly contract that demand is a condition precedent. However, as previously indicated, there was no evidence of any such agreement in the instant case. Thus, even if we were to agree with the trial court’s apparent conclusion that payment was due upon demand, the statute of limitations would have commenced when the contract was made. See generally 54 C.J.S., Limitation of Actions, § 201(a)(2)(c) (1948); 51 Am.Jur.2d, Limitation of Actions §§ 113, 127, 128 (1970). However, we are of the opinion that the agreement can more accurately be described as one which is silent as to the time for repayment. Again, we find no Arizona cases which directly decide when the statute of limitations begins to run on such a contract. Different approaches have been taken by jurisdictions which have considered this precise issue. It is the majority position that such an agreement is viewed as a loan repayable on demand and the statute of limitations commences when the agreement is made. See e.g. Sturdivant v. McCorley, 83 Ark. 278, 103 S.W. 732 (1907); Hodgson v. Keppel, 211 Iowa 795, 802, 232 N.W. 725, 727-728 (1930); McCandlish v. Estate of Timberlake, 497 S.W.2d 191, 195 (Mo.App.1973); Akre v. Washburn, 92 N.M. 487, 489, 590 P.2d 635, 637 (1979); Ricker v. Ricker, 201 Or. 416, 422, 270 P.2d 150, 153 (1954); Johnson v. Wold, 475 P.2d 714, 716 (Wyo. 1970). Other jurisdictions have held that silence as to time of repayment should be treated as a missing term in the contract to be supplied by the court. Such courts have held that the statute of limitations period starts to run a reasonable time after the loan had been made, since repayment would be expected after such a reasonable time period. See Rees v. Heyser, 404 N.E.2d 1183 (Ind.App.1980); Stromblad v. Wilderness Adventurer, Inc., 577 P.2d 918 (Okla.App.1978). Such an approach results in “reasonableness” becoming a question of fact in light of all the circumstances disclosed by the evidence. A discussion of the varied approaches where a contract is silent as to repayment is contained in Annot., 14 A.L.R.4th 1385 (1982). After reviewing these cases, we are persuaded that the better approach is the majority position holding that where the contract is silent as to time of repayment, a cause of action accrues at the time the contract is made. Statutes of limitations are enacted to relieve defendants and the courts from litigation of stale claims because evidence may have been lost or witnesses’ memories faded. It is a necessary policy for the orderly administration of justice. Brooks v. Southern Pacific Company, 105 Ariz. 442, 466 P.2d 736 (1970). We are not persuaded by cases from jurisdictions which permit a creditor to toll the statute of limitations by proving that he waited a “reasonable” time to seek repayment. This policy involves the courts in the kind of evidentiary problems which statutes of limitations were intended to preclude and emasculates the statute itself. Therefore, we hold that where the contract is silent as to the time of repayment, the statute of limitations begins to run at the time the loan is made. Brown has argued alternatively that even if the statute of limitations were held to be a bar to this action, the estate should be estopped from raising that defense. Brown contends that Musgrove’s actions in ensuring him of repayment, induced him to forbear seeking to enforce his contractual rights. While arguing in general terms that Musgrove’s “promises” induced him not to bring suit, he cites to no specific promises occurring prior to the expiration of the statutory period in 1965. Detrimental reliance is an essential ingredient of estoppel, without which there can be no estoppel. See, e.g., Knight v. Rice, 83 Ariz. 379, 321 P.2d 1037 (1958); Noble v. Noble, 26 Ariz.App. 89, 546 P.2d 358 (1976). See also Freeman v. Wilson, 107 Ariz. 271, 485 P.2d 1161 (1971). We also note that Brown specifically testified that the reason he did not bring an action earlier was that he thought it was to his advantage to wait. Further, any alleged acknowledgment of the debt by Musgrove after the passing of the statutory period was inadmissible unless in writing and signed by Musgrove. See A.R.S. § 12-508. There were two partial payments made within the statutory limitations— $400 in December, 1962 and $500 in 1964. Brown appears to argue that these partial payments were sufficient to create an estoppel. However, partial payment alone will not remove the bar of the statute of limitations. Cheatham, supra. Nor has Brown cited any authority in support of a contention that part payment, by itself, constitutes an estoppel. We hold that the statute of limitations commenced to run on the oral debt at the time it was made in December, 1962. Brown did not initiate this law suit until April of 1981, some 19 years later and well after the three-year limitations period. We further find that Brown failed to present any evidence to the court sufficient to es-top the estate from raising the statute of limitations as a defense. Accordingly, we hold that Brown’s claim was barred by A.R.S. § 12-543 and reverse the order of the trial court granting judgment in favor of Brown against the estate. The matter is remanded with directions to enter judgment in favor of the appellant. EUBANK, P.J., and OGG, J„ concur. . There are situations where repayment has been found expressly or impliedly conditioned upon the debtor’s ability to repay. This question has been discussed in Annot., 28 A.L.R.2d 786 (1953). We find that the evidence would not support such a condition as part of the agreement which is the subject of this law suit. . A.R.S. § 12-508 provides: When an action is barred by limitation no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the action out of the operation of the law, unless the acknowledgment is in writing and signed by the party to be charged.

CAMERON, Justice. Defendant, Scott J. Williams, was convicted and judged guilty of the crime of dangerous or deadly assault by a prisoner. A.R.S. § 13-1206. He was sentenced to a term of life imprisonment under the provisions of pre-amendment A.R.S. § 13-1206. We have jurisdiction pursuant to Art. 6, § 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031 and 13-4035. Defendant raises the following issues on appeal: 1) Did the trial court err in ruling that defendant’s prior convictions were admissible for impeachment purposes? 2) Did the trial court err in refusing to allow the former testimony of an allegedly unavailable witness to be read into evidence? 3) Did the trial judge err in not granting defendant’s motion for judgment of acquittal? 4) Did the trial court err in not instructing on lesser-included offenses? 5) Did the legislatively mandated punishment of life imprisonment for dangerous or deadly assault by a prisoner constitute cruel or unusual punishment in violation of the Eighth Amendment of the United States Constitution? The facts necessary for a determination of this matter are as follows. On 7 September 1983, at approximately 8:00 P.M., Perry Davis, the victim, was using a public telephone located in a yard at the Department of Correction’s Wilmot facility. Words passed between the victim and defendant over the length of time the victim was using the phone. Defendant allegedly then lunged at the victim with a homemade knife or “shank.” The victim suffered a stab wound to his chest which necessitated surgery. At trial, although defendant did not testify, his defense was that someone else had done the stabbing. Defendant was convicted by a jury and adjudged guilty. From the judgment and sentence, defendant appealed. PRIOR CONVICTIONS Defendant contends that the trial court abused its discretion in ruling that he could be impeached with his prior felony convictions if he elected to testify. Our Rules of Evidence state in pertinent part: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record, if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, and if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involved dishonesty or false statement, regardless of the punishment. Rule 609(a), Arizona Rules of Evidence, 17A A.R.S. In the instant case, defendant had prior convictions for first degree murder, A.R.S. § 13-1105 see 133 Ariz. 220, 650 P.2d 1202; dangerous or deadly assault by a prisoner, A.R.S. § 13-1206 see 132 Ariz. 153, 644 P.2d 889; and stealing, destroying, altering, or secreting a public record, A.R.S. § 38-421. In ruling that these prior convictions could be used for impeachment purposes, the trial court made the requisite finding that their probative value outweighed any prejudicial effect. The judge further ruled that the County Attorney could show that defendant was in custody for murder but could only show that defendant was convicted of other felonies without indicating the nature of those felonies. The court stated: I figured that it would lessen the prejudicial effect by allowing the County Attorney only to show that there were [other] felony charges without naming the specific charge. We believe that the trial court ruled correctly. The gist of defendant’s defense was that some other person stabbed the victim and that, at most, he had a scuffle with the victim not involving weapons. Since this was a question of defendant’s credibility, impeachment evidence would have been important to the State had defendant elected to testify. Prejudice was minimal in this case as defendant was charged with a crime (assault by a prisoner) which, by definition, revealed to the jury the fact that he had at least one prior felony conviction. The trial court also mitigated potential prejudice by ruling that the nature of defendant’s other prior convictions could not be revealed. That the trial court’s ruling may have prevented defendant from testifying is not persuasive. State v. Gretzler, 126 Ariz. 60, 85, 612 P.2d 1023, 1048 (1980). We find no error. State v. McElyea, 130 Ariz. 185, 188, 635 P.2d 170, 173 (1981). FORMER TESTIMONY Defendant maintains that the trial court erred in refusing to allow the former testimony of an allegedly unavailable witness to be read into evidence. After the stabbing, corrections officers taped statements of some of the prisoners who had witnessed the incident. The statements were unsworn. One prisoner, Jerry Kennedy, told the officers that he had seen the defendant stab the victim. At the preliminary hearing, Kennedy was called as a witness by the State. He was asked by the State: Q. (By Mr. Peasley) Did you stab Per- ry Davis on the 7th of September of 1983? A. I’m pleading the 5th amendment on that. Q. You don’t even want to say whether you stabbed— A. No. The State questioned the witness further and he was at times evasive. There was opportunity for cross-examination by the defendant which he exercised in a limited manner. Kennedy was listed as a witness by the State. A week before the trial, Kennedy was released from prison. Defendant contacted the state investigator and was told that he did not know Kennedy’s whereabouts. Defendant moved to introduce Kennedy’s preliminary hearing testimony. The State would only agree to this if the unsworn statement made to the prison officer (Costello) was also admitted. Defendant’s attorney stated as to the efforts to locate the witness: I then met with Mr. Peasley [the prosecutor], I believe, on Wednesday or Thursday preceding the trial and indicated that I had heard the possibility that Mr. Kennedy had been released from DOC. Mr. Peasley and Ricky Mesa from the County Attorney’s office and Investigator Costello followed it up, and indeed he had been released. And DOC, who had him sometime shortly before the trial, no longer knew where he was. I said: Do you have any idea, can you locate him? Mr. Peasley indicated a certain unhappiness at being unable to locate him, being unable'to produce him today. It had been Mr. Peasley’s contention, I believe, that he was, * * * that he was going to produce him to testify during the course of this trial. And I was looking forward to that opportunity. And there was some chagrin on Mr. Peasley’s part as not being able to produce him. And Officer Costello indicated to me that he did not know where Mr. Kennedy was. And if the chief investigator for criminals committed with the Southern Arizona Department of Correction facility don’t know where the Department of Corrections people send people when they get released, I don’t know how I can find him on three days’ notice. Finding that defendant did not take reasonable steps to locate Kennedy, and that the former testimony did not bear adequate “indicia of reliability,” the trial court ruled that defendant could not introduce the former testimony. Defendant claims this was error. The trial court based its ruling upon Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) and State v. Edwards, 136 Ariz. 177, 665 P.2d 59 (1983) (adopting Roberts), two cases involving attempts by the State to introduce former testimony of an absent witness. These cases recognize that the State’s use of a witness’ former testimony may interfere with an accused’s Sixth Amendment right to confront adverse witnesses. To accommodate these competing interests, the United States Supreme Court formulated a two-step approach to govern the State’s use of former testimony. Before such testimony may be used, the Confrontation Clause requires: 1) proof of a witness’ unavailability satisfied by the State showing that it unsuccessfully made a good faith effort to secure his attendance at trial, and 2) adequate “indicia of [the former testimony’s] reliability.” Ohio v. Roberts, supra; State v. Edwards, supra. The trial court herein ruled that defendant failed to meet both tests. In the instant case, however, it was defendant, not the State, who sought to introduce Kennedy’s former testimony. Therefore, defendant’s Sixth Amendment right to confrontation was not implicated. In order to have had the testimony admitted into evidence, defendant needed only to show that the absent witness was unavailable and that the former testimony was material and given under oath and under circumstances which provided an opportunity for adequate cross-examination. See McCormick on Evidence § 254 (F. Cleary 3d ed. 1984). We believe that defendant has shown a good faith attempt to locate the witness. Defendant had a right to assume that the State would secure Kennedy’s attendance at trial because he was listed as a State’s witness. As soon as defendant learned Kennedy might not be available, he contacted the State’s investigator to see if he knew of Kennedy’s whereabouts. By then it was too late to take other steps to locate the witness. Considering the relative resources of the State and defendant and the fact that the State released the witness and could not find him either, we believe defendant satisfied the good faith requirement in trying to locate the witness. See State v. Pereda, 111 Ariz. 344, 529 P.2d 695 (1974). Defendant has also shown that the testimony which was given under oath subject to cross-examination exhibited an adequate indicia of reliability. Ohio v. Roberts, supra; State v. Edwards, supra. We might not agree that the testimony should have been admitted if it had been offered for the sole purpose of showing that the witness invoked the Fifth Amendment. State v. McDaniel, 136 Ariz. 188, 193-95, 665 P.2d 70, 75-77 (1983); see also State v. Corrales, 138 Ariz. 583, 589-91, 676 P.2d 615, 621-23 (1983). The testimony, however, was indicative of much more and we believe the court erred in excluding it. The error did not, however, reasonably contribute to the conviction. See Fahy v. Connecticut, 375 U.S. 85, 86, 84 S.Ct. 229, 230, 11 L.Ed.2d 171, 173 (1963). In addition to the isolated taking of the Fifth Amendment, the testimony of the witness implicated the defendant in several aspects. For example: Q. Could you see Mr. Williams that evening when you saw Mr. Davis talking on the telephone? A. Yes. Q. At some time did you see Mr. Williams go over by the telephone where Perry Davis was? A. Yes. Q. Okay, did you see something happen between Mr. Williams and Perry Davis? A. I just as soon not answer that. MR. PEASLEY: I will ask the Court to direct the witness to answer the question. THE COURT: Why don’t you answer? THE WITNESS: I’m pleading the 5th amendment. Q. Has Mr. Williams talked to you about making a shank? A. I don’t wish to answer that at this time. Q. Has Mr. Williams in fact made a shank for you like the one he used on Perry Davis? A. I don’t want to answer that. Q. Have you seen Mr. Williams at a time when he was down there on the grinder when he was in fact working on making a shank like the one he used to stick in Perry Davis? THE WITNESS: I’m pleading the 5th amendment to these questions. Q. (By Mr. Peasley) Did you stab Perry Davis on the 7th of September of 1983? A. I’m pleading the 5th amendment on that. Q. Did you get in any kind [of] fight with Perry? A. No. Q. Didn’t you talk to Mr. Costello and say that you were aware of the fact that Perry Davis got stabbed and was bleeding all over himself that night, you knew that? A. Yes, later on, not right away. Q. And you knew that was as a result of something that happened near the telephone booth where he was standing there talking? A. Yes. Q. Did you see Perry Davis bleeding all over himself at the Wilmot facility? A. In the chow hall where he went and laid down. Q. You saw him there? A. Yes. Q. Did you see Mr. Williams at that time, what he was doing? A. Yes. Q. What was he doing? A. Correctional officers was taken him to his cell to lock him up. Q. Didn’t you ever taik to Mr. Williams about trying to hide this shank that he used on Perry Davis? A. No, sir. Q. Didn’t you stand guard at the door of a storage room while Mr. Williams was back there grinding away at making a shank? A. Pm not going to answer that. Q. Didn’t you see Mr. Williams stab Perry Davis while he was standing at the telephone booth? A. No, sir. Q. You never saw that? A. No, sir. Q. Did you see Mr. Williams make a motion with his hand towards Mr. Davis immediately before Mr. Davis showed up with blood all over the front of him? A. I never saw Davis with blood all over him until he was in the chow hall. Q. Did you see a fight between Mr. Williams— A. There was a confrontation, yes. Q. Tell us what you mean by confrontation? A. They were wrestling around a little bit. Between each other. Q. Okay, when they were wrestling around between each other was it on the ground or standing up? A. They were standing up. Q. During this period of time when they were wrestling around with one another didn’t you see Mr. Williams making stabbing motions with his hand towards Mr. Davis? A. Not stabbing motions, I seen him moving his hands forward. Q. Why don’t you show us, demonstrate if you would what kind of motions you saw Mr. Williams making at Mr. Davis just before Mr. Davis got stabbed? A. Just like he was trying to punch at him it looked to me. The rest of the testimony was damaging to defendant’s case. Although it was error to exclude the evidence, the error was harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 711 (1967); State v. McVay, 127 Ariz. 450, 622 P.2d 9 (1981). SUBSTANTIAL EVIDENCE Defendant maintains that the trial court erred in failing to grant his motion for a judgment of acquittal made at the end of the evidence but prior to verdict pursuant to Rule 20(a), Arizona Rules of Criminal Procedure, 17 A.R.S. We do not agree. Rule 20(a) provides: On motion of a defendant or on its own initiative, the court shall enter a judgment of acquittal of one or more offenses charged in an indictment, information or complaint after the evidence on either side is closed, if there is no substantial evidence to warrant a conviction. The court’s decision on a defendant’s motion shall not be reserved, but shall be made with all possible speed. Under this rule, a judgment of acquittal must be granted if there is no substantial evidence to warrant a conviction. State v. Hallman, 137 Ariz. 31, 38, 668 P.2d 874, 881 (1983). If there is, however, substantial evidence that the defendant committed the crimes as charged, the defendant is not entitled to have the court direct a verdict of acquittal. State v. Axley, 132 Ariz. 383, 393, 646 P.2d 268, 278 (1982). We believe that there was sufficient evidence to support defendant’s conviction. Although the victim testified that he did not see a knife in defendant’s possession, he stated that defendant struck him in the approximate area of his stab wound and that he momentarily noticed blood running down his side. His testimony also included the fact that no one else was within fifteen feet of him during the scuffle. Additionally, it was adduced at trial that the weapon used in the assault had been machine sharpened and that defendant had access to a power grinder. Metallic powder residue found on this machine showed characteristics similar to the metallic composition of the knife. The jury also heard evidence that the knife’s handle was wrapped in tape similar to that found in defendant’s personal belongings. Although defendant turned the weapon over to a corrections officer claiming that the victim had attacked him with it, the officer testified that defendant later said, “I had to put an end to all this.” This evidence was sufficient for a jury to find that defendant committed an assault in violation of A.R.S. § 13-1206. We find no error. LESSER-INCLUDED INSTRUCTIONS Defendant argues that the trial court erred in not giving instructions on simple and aggravated assault. “An offense is a lesser included one only where the greater offense cannot be committed without necessarily committing the lesser.” State v. Amarillas, 141 Ariz. 620, 623, 688 P.2d 628, 631 (1984). An instruction on a lesser included offense need not be given, however, when the evidence will not support it. See State v. Noriega, 142 Ariz. 474, 481, 690 P.2d 775, 782 (1984). Thus, a lesser-included offense instruction may not be given when the state of the evidence is such that the defendant can only be guilty of the crime charged or not guilty at all. State v. Lamb, 142 Ariz. 463, 472, 690 P.2d 764, 773 (1984). The elements of A.R.S. § 13-1206, dangerous or deadly assault by a prisoner, are: 1) a person in the custody of the Department of Corrections, 2) commission of an assault, and 3) use of a deadly or dangerous instrument, or infliction of serious physical injuries. The elements of aggravated assault, A.R.S. § 13-1204, are the same except that the accused need not be in custody. Simple assault, A.R.S. § 13-1203, is further distinguished insofar as the offense need neither to have been committed with a deadly or dangerous instrument nor result in serious physical injuries. In the instant case, it is undisputed that defendant was in the custody of the Department of Corrections when the offense was committed. Furthermore, the victim suffered a stab wound. If defendant was guilty of an assault, it was both aggravated and while in custody. If guilty, the defendant could only be guilty of the offense charged. See, e.g., State v. Tims, 143 Ariz. 196, 693 P.2d 333 [1985] (aggravated assault instruction not warranted where it was undisputed that the defendant was in the custody of the Department of Corrections and the only issue to be decided was one of identity). We find no error. CONSTITUTIONALITY OF A.R.S. § 13-1206 Defendant’s final contention is that A.R.S. § 13-1206 mandated a constitutionally excessive sentence under the facts of this case. Defendant cites us to the test set forth by the United States Supreme Court for determining whether a sentence is constitutionally excessive. That test considers: 1) the gravity of the offense, 2) the harshness of the penalty, 3) the sentence imposed on similarly situated defendants in the same jurisdiction, and 4) the sentence imposed for commission of the same crime in other jurisdictions. Solem v. Helm, 463 U.S. 277, -, 103 S.Ct. 3001, 3010, 77 L.Ed.2d 637, 650 (1983). In State v. Garcia, 141 Ariz. 97, 685 P.2d 734 (1984), we conducted the analysis mandated by Solem in a situation in which a prisoner used a metal bar to threaten, but not injure, corrections officers. We upheld the constitutionality of the statute under those circumstances. The instant case presents a stronger fact pattern for upholding the constitutionality of A.R.S. § 13-1206 insofar as the victim sustained serious physical injuries. See State v. Goswick, 142 Ariz. 582, 691 P.2d 673 (1984) (penalty not disproportionate as applied to an inmate who stabbed another using a sharpened welding rod). We find the sentence is neither excessive nor disproportionate. We find no error. We have reviewed the entire record pursuant to A.R.S. § 13-4035 and have found no reversible error. The judgment and sentence are affirmed. HOLOHAN, C.J., GORDON, V.C.J., and HAYS and FELDMAN, JJ., concur.

BIRDSALL, Chief Judge. In June 1983, the petitioners herein filed a complaint in Pima County Superior Court against the real parties in interest seeking to recover damages for injuries to petitioner Victoria Crawford arising from a collision which occurred in 1982 between the latter on her bicycle and a truck driven by an employee of real party in interest Tucson Electric Power Company. In 1984, the Arizona legislature adopted the Uniform Contribution Among Tortfeasors Act, A.R.S. §§ 12-2501 to 2509, made applicable only to actions filed on or after its effective date, August 30, 1984. Laws 1984, Ch. 237, § 3. On June 28, 1984, the petitioners filed a motion to dismiss their complaint without prejudice, pursuant to Rule 41(a)(2), Rules of Civil Procedure, 16 A.R.S. The real parties in interest opposed the motion, which was denied by the trial court. It is from the trial court’s denial of the motion that this special action was taken. The sole issue presented by this special action concerns the propriety of a dismissal of a pending tort action without prejudice in order to allow the plaintiff to refile the action subject to the uniform act. Because the issue presented is one of first impression and of statewide importance, we accept jurisdiction. For the reasons set forth below, however, we deny relief. Subject to certain exceptions not applicable here, Rule 41 permits a plaintiff to voluntarily dismiss an action at any time prior to service by the defendant of an answer or a motion for summary judgment. Where the defendant has answered, however, dismissal may not be granted “save upon order of the court and upon such terms and conditions as the court deems proper.” Rule 41(a)(2), Rules of Civil Procedure, 16 A.R.S. In Goodman v. Gordon, 103 Ariz. 538, 447 P.2d 230 (1968), noting that traditionally a plaintiff had an unqualified right, upon payment of costs, to dismiss without prejudice unless the defendant would suffer some plain legal prejudice other than the mere prospect of a second lawsuit, the- Arizona Supreme Court concluded that while the rule modified the law to place the decision whether to dismiss within the trial court’s discretion, “only the most extraordinary circumstances will justify the trial court in refusing to grant a motion by a plaintiff to dismiss without prejudice.” 103 Ariz. at 541, 447 P.2d at 233. The court discussed a number of federal decisions addressing the grounds for refusing to dismiss without prejudice and appeared to concur that, in applying the “plain legal prejudice” test, the issue is whether: “ ‘the defendants acquired in the course of these proceedings some substantial right or advantage which will be lost or rendered less effective by a dismissal without prejudice * * *. The court is concerned with the deprivation of substantial legal rights, such as loss or unavailability of a defense, and not mere convenience, or easy accessibility, to proof.’ ” 103 Ariz. at 541, 447 P.2d at 233, quoting United States v. E.I. DuPont De Nemours & Co., 13 F.R.D. 490, 497 (N.D.Ill.1953). Although this same standard was subsequently followed in Penunuri v. Superior Court In and For Pima County, 115 Ariz. 399, 565 P.2d 905 (App.1977), neither case affords much insight into what may constitute a deprivation of substantial legal rights. Clearly, neither the prospect of a second lawsuit, nor the expense and delay incurred, nor extensive preparation for trial will suffice alone, inasmuch as the trial court has the authority under the rule to establish appropriate “terms and condi tions” of dismissal to compensate the defendant or otherwise alleviate the prejudice to him. See Rule 41(a)(2), Rules of Civil Procedure, 16 A.R.S. In this case, for example, the petitioners have agreed that all discovery in the present suit may be incorporated into any new proceedings. The real parties in interest contend that they would suffer loss of a substantial legal right if the action were dismissed without prejudice in that they will be subject to the uniform act in the event a subsequent suit is filed and therefore “the absolute bar of contributory negligence will be lost.” According to the real parties in interest, the evidence in this case will show that Victoria Crawford was riding her bicycle on the wrong side of the street at the time the accident occurred, failed to stop for a stop sign, and without slowing rode directly into the path of the oncoming vehicle. Under the prior law, they argue, if a jury were to find that this conduct constituted contributory negligence, the petitioners would be barred from any recovery, whereas under the uniform act such a finding would merely serve to reduce the amount of recovery in proportion to the relative degree of the petitioner’s fault. See A.R.S. § 12-2505(A). In sum, the position of the real parties in interest is that the defense of contributory negligence is a “substantial right ... which will be lost or rendered less effective by a dismissal without prejudice.” Goodman v. Gordon, 103 Ariz. at 541, 447 P.2d at 233. We agree. Article 18, § 5 of our constitution provides that “[t]he defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.” The broad sweep of this nearly unique provision was addressed in Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (1970), where the supreme court noted: “This Court by a long line of decisions under a variety of circumstances has held that the purpose of Article 18, § 5 was to modify the common law by making the jury rather than the court the sole arbiter of the existence or non-existence of contributory negligence, [citation omitted] This includes not alone the right to determine the facts, but to apply or not, as the jury sees fit, the law of contributory negligence as a defense.’’ 106 Ariz. at 28, 470 P.2d at 109 (emphasis in original). Thus, the court concluded that “the trial court cannot direct a verdict even though the plaintiff’s negligence is undisputed, and the trial court must not, directly or indirectly, tell the jury that it shall return a verdict compatible with the law of contributory negligence as declared by the court.” Id. at 30, 470 P.2d at 111. That the jury had the absolute discretion to determine whether or not to apply the defense did not mean, however, that the jury had the right to apportion damages. If it elected to apply the defense, the plaintiff’s recovery was barred. Conversely, if it elected not to apply the defense even though it found that the plaintiff was negligent, it was incumbent upon the jury to award all damages to which the plaintiff was legally entitled as shown by the evidence. Hernandez v. State, 128 Ariz. 30, 623 P.2d 819 (App. 1980); Anderson v. Muniz, 21 Ariz.App. 25, 515 P.2d 52 (1974). Under the uniform act, the jury retains, as it must, the power to determine whether or not to apply the defense of contributory negligence. A.R.S. § 12-2505(A). If it determines to apply the defense, however, the jury is required to apportion damages in accordance with its determination of the relative degree of fault of the parties which is a proximate cause of the injury. Id. Thus, as the real parties in interest argue, if the jury found that the petitioners were ninety percent negligent and determined to apply the defense, under the uniform act it would nevertheless be required to award petitioners ten percent of the amount of damages shown, whereas under the prior law the petitioners’ recovery would be completely barred. Although no specific amount was prayed for in the complaint, even ten percent of the petitioners’ damages may be substantial. The defense of contributory negligence is clearly a substantial legal right, and while the effect of a dismissal without prejudice so that the petitioners may bring their action under the uniform act would not be the complete loss of that defense, we are compelled to conclude that the defense would be rendered less effective thereby. Accordingly, we hold that the trial court did not abuse its discretion in denying petitioners’ motion to dismiss without prejudice and therefore deny relief. HOWARD and HATHAWAY, JJ., concur.

OPINION BIRDSALL, Chief Judge. This appeal arises from a complaint filed by the appellee, Maraña Unified School District, seeking judgment on a bid bond given by appellants, L.G. Lefler, Inc., doing business as Defco Construction Company, principal, and the Aetna Casualty and Surety Company, surety. The bond was provided pursuant to A.R.S. § 34-201(A)(3) because Defco submitted a bid proposal to construct a junior high school building for the appellee. The statute provides: 3. That every proposal shall be accompanied by a certified check, cashier’s check or a surety bond for five per cent of the amount of the bid included in the proposal as a guarantee that the contractor will enter into a contract to perform the proposal in accordance with the plans and specifications, or as liquidated damages in event of failure or refusal of the contractor to enter into the contract. The certified check, cashier’s check or surety bond shall be returned to the contractors whose proposals are not accepted, and to the successful contractor upon the execution of a satisfactory bond and contract as provided in this article. Although Defco was the low bidder, it refused to enter into a contract with the appellee because it had made a mathematical mistake in its proposal. The trial court entered summary judgment in favor of the Maraña District in the amount of $270,662.50, that being five per cent of Defco’s base bid plus alternates together with costs and attorney fees. The appellants’ cross-motion for summary judgment was denied. The facts considered in the light most favorable to the appellants may be summarized as follows. The appellee gave notice of its intent to receive sealed bids for the construction of the school pursuant to A.R.S. § 34-201. The bids were required to be submitted by 4 p.m., February 2, 1982, at which time they were opened. The appellant’s bid was for $4,890,000 together with alternates, all of which totalled $5,936,500. The bid bond attached to the proposal was “in the sum of five per cent of contract bid.” No actual figures were set forth on the bond but the proposal referred to the required bid bond amount as five per cent of the “base bid” which would have been $244,500. Nine other contractors submitted bids. Defco’s was the lowest base bid. The next lowest base bid was $5,447,000. The architect’s estimated cost for the construction without alternates was $4,900,000. Defco’s bid was within two-tenths of one per cent of that estimate. After all bids were opened, the architect and school district officials reviewed them and a written recommendation was made that day to accept Defco’s base bid together with two alternates totalling $5,253,080. At about the same time, Defco personnel were recheeking their figures since it appeared that a mistake may have been made. The employee who had tabulated Defco’s bid sheet then discovered that she had used $42,000 as the bid for the structural steel when the correct figure was $412,000, a mistake of $370,000. According to the employee’s affidavit attached to the appellants’ cross-motion for summary judgment, she was still receiving telephone bids from subcontractors and suppliers and working on Defco’s bid up until 3:30 on February 2; she found a mistake in her first tabulation of some 170 items on the bid sheet and did a second tabulation, then added the figures six times. Since this brought her so close to the time the bid had to be submitted, there was no time to have another employee check her figures. Defco advised appellee by telephone within one and one-half hours of the bid opening of the mistake which came to $398,752 with the addition of other items based on percentages of the $370,000 error. A letter containing the same information was delivered to the school within three hours after the bid was opened at 4 p.m. In the letter Defco asked to meet with the school officials to show them the calculator tapes and bid sheet which revealed how the error had occurred. The school board held a special meeting at 7:30 that evening, February 2, receiving the report and recommendation of the architect and the letter from Defco. Apparently because of the latter, they deferred consideration of the bids and the school superintendent was instructed to consult with legal counsel. A second special meeting of the board was held on February 4 with Mr. Lefler from Defco present. Pursuant to a motion passed by the board, the president asked Lefler if Defco was prepared to perform the contract if awarded under Defco’s original low base bid. Lefler answered no, whereupon the board passed a motion that “the board reject all bids received on February 2 and instruct the architect to prepare to re-bid the construction contract____” There is no conflict in any of the foregoing facts. Other facts will be discussed as necessary in relation to the issues. The important issue presented by this appeal is whether a low bidder for a public contract may refuse to enter into a contract because of a mistake in the bid without forfeiting the bid bond. Although this question has never been decided in Arizona, it has been the subject of numerous opinions in our sister states and federal courts. For a recent compilation and discussion of these cases see the annotation in 2 ALR4th 991, “Right of bidder for state or municipal contract to rescind bid on ground that bid was based upon his own mistake or that of his employee.” Before discussing this issue, which we believe to be dispositive, we reject certain other contentions made by the appellants. The appellants contend first that the school board never offered a contract to Defco and that it rejected all bids includ ing Defco’s. We disagree. The only evidence is that the school board at its meeting on February 4 asked the Defco officer whether Defco would perform if the contract were awarded for the low base bid. The answer was an unequivocal no. Nothing more should be required. There is no room for any doubt. Defco refused to enter into the contract. It is also abundantly clear that the bids were not rejected until after this refusal. The appellants’ contention that this action released the bid bond is without merit. Likewise we reject the argument that the action of the board rejecting the bids constituted a mutual rescission of the Defco bid bond contract. No weighing of the evidence is required. It is impossible to make any inference other than that the appellee offered the contract and the appellant refused. Thus we must consider the controlling question — whether Defco’s refusal to enter into a contract because of the mistake in the bid must result in the forfeiture of the bid bond. It is the appellee’s position that the statute permits no escape from forfeiture. There is authority to support such a result. These decisions are cited by the appellants: Board of Edn. v. Sever-Williams Co., 22 Ohio St.2d 107, 258 N.E.2d 605, cert. denied, 400 U.S. 916, 91 S.Ct. 175, 27 L.Ed.2d 155 (1970), and A.J. Colella, Inc. v. County of Allegheny, 391 Pa. 103, 137 A.2d 265 (1958). They stand for the very position argued by the appellee and followed by the trial court, that given a statute like Arizona’s, forfeiture of the bid bond is mandated even though there is legal justification for the withdrawal of the bid. The reasoning in these decisions is generally the same, that this is the purpose of the statute and to permit exceptions would materially weaken the purpose of the bidding procedure for public contracts and make the bid bond requirement meaningless. In Colella the court opines that plea of a clerical mistake would make the system of sealed bids a mockery. Sever-Williams speaks of possible abuse of the bidding procedure, i.e., favoritism or fraud. See also Crenshaw County Hospital Board v. St. Paul Fire & Marine Insurance Co., 411 F.2d 213 (5th Cir.1969); Anco Construction Co., Ltd. v. City of Wichita, 233 Kan. 132, 660 P.2d 560 (1983); Triple A Contractors, Inc. v. Rural Water District No. 4, 226 Kan. 626, 603 P.2d 184 (1979); and City of Newport News v. Doyle & Russell, Inc., 211 Va. 603, 179 S.E.2d 493 (1971) where no state statutes were involved. We do not agree with the reasoning or result in those cases. Nor do we believe that the Arizona legislature intended that there be no relief from forfeiture of the bid security for equitable reasons. We agree with the appellants that unless the legislature clearly indicates an intention to do so, its enactments shall not be construed so as to change established common law. Terry v. Lincscott Hotel Corp., 126 Ariz. 548, 617 P.2d 56 (1980); Kilmer v. Hicks, 22 Ariz. App. 552, 529 P.2d 706 (1974). The doctrine of rescission for unilateral clerical mistake was set forth by the United States Supreme Court as early as 1900. See Moffett, Hodgkins, & Clarke Co. v. City of Rochester, 178 U.S. 373, 20 S.Ct. 957, 44 L.Ed. 1108 (1900). We believe the trial court erred in granting summary judgment in favor of the appellee. We follow those decisions which hold that when relief from the forfeiture is legally justifiable, statutes like Arizona’s do not mandate the forfeiture. The cases upon which we rely all arise under a statute or bid solicitation which, on its face, prohibits a withdrawal of bids. The notice inviting the sealed bids in the instant case provided, in part, that the appellee reserved the right to hold any and all bids for a period of 45 days after the opening and that no bidder may withdraw its bid during this 45-day period. In these cases the bidder notified the public authority of the mistake prior to acceptance of the bid. Clearly this notice was promptly given by Defco before the appellee had accepted the bid. A starting point is the decision in Moffett, Hodgkins, & Clarke Co. v. City of Rochester, supra. The mistake in Moffett resulted from mathematical errors commit ted by an extremely nearsighted engineer working in great haste with a voluminous number of specifications. Affirming a decree in favor of the contractor, the Supreme Court said that the contractor was not endeavoring to withdraw or cancel a bid or bond in contravention of the city charter, since the contractor was proceeding upon the theory that the bid read at the meeting of the board was one which it had never intended to make, and that the minds of the parties had never met. The Court added that if the city was correct in its contention that the charter provision barred any remedy, then there would be no redress for a bidder on a public work, no matter how aggravated or palpable his blunder. A material mistake of fact in a bid justifies a conclusion that there has been no meeting of the minds because the bidder did not intend to make the erroneous bid. See State Highway Commission v. Canion, 250 S.W.2d 439 (Tex.Civ.App. 1952). What appear to be the majority decisions rely upon the equitable remedy of rescission. In these decisions the courts have held or recognized that the bidder who had notified the public authority of the mistake prior to acceptance of the bid was entitled to a decree rescinding the bid, or to similar equitable relief, despite a statute similar to A.R.S. § 34-201(A)(3). See Peerless Casualty Co. v. Housing Authority of Hazelhurst, 228 F.2d 376 (5th Cir.1955); Dick Corp. v. Associated Electric Cooperative, Inc., 475 F.Supp. 15 (W.D.Mo.1979); Osberg Construction Co. v. City of The Dalles, 300 F.Supp. 442 (D.Or.1969); Connecticut v. F.H. McGraw & Co., 41 F.Supp. 369 (D.Conn.1941); City of Syracuse v. Sarkisian Brothers, Inc., 87 A.D.2d 984, 451 N.Y.S.2d 945 (1982); Arcon Construction Co. v. State Department of Transportation, 314 N.W.2d 303 (S.D.1982); Wil-Fred’s Inc. v. Metropolitan Sanitary District, 57 Ill.App.3d 16, 14 Ill.Dec. 667, 372 N.E.2d 946 (1978); Gaastra v. Village of Fairwater, 77 Wis.2d 7, 252 N.W.2d 60 (1977); Clover Park School District v. Consolidated Dairy Products Co., 15 Wash.App. 429, 550 P.2d 47 (1976); Boise Junior College District v. Mattefs Construction Co., 92 Idaho 757, 450 P.2d 604 (1969); Smith & Lowe Construction Co. v. Herrera, 79 N.M. 239, 442 P.2d 197 (1968); State Highway Commission v. State Construction Co., 203 Or. 414, 280 P.2d 370 (1955); Townsend v. McCall, 262 Ala. 554, 80 So.2d 262 (1955). See also 52 A.L.R.2d 779. These cases generally set forth certain criteria to be satisfied before a forfeiture can be avoided. The criteria are summarized in yet another especially comprehensive decision, City of Baltimore v. De Luca-Davis Construction Co., 210 Md. 518, 524, 124 A.2d 557, 562 (1956). 1, the mistake must be of such grave consequences that to enforce the contract as made or offered would be unconscionable; 2, the mistake must relate to a material feature of the contract; 3, the mistake must not have come about because of the violation of a positive legal duty or from culpable negligence; 4, the other party must be put in status quo to the extent that he suffers no serious prejudice except the loss of his bargain. Most of the decisions cited above contain these same conditions precedent to rescission for a unilateral mistake. Other cases have added as an additional reason for permitting rescission that the public body knew or had reason to know that a mistake had been made. Townsend v. McCall, supra. We do not understand that to be a requirement for rescission. It is indeed difficult to envisage a fact situation where the public body would know that a sealed bid contained a mistake prior to its opening unless the bidder discovered and gave notice of the mistake. After that, unless the bid is accepted and a contract made, it seems immaterial whether upon opening the bid the public body knew or should have known. At least in the instant case, where the appellant notified the appellee within three hours and before any attempted acceptance of the bid, it does not appear to be material. Other courts admonish that a bidder should not be able to withdraw a bid under circumstances profitable to the bidder or which would permit any collusion or connivance among bidders to the detriment of the public. See State Board of Control v. Clutter Construction Corp., 139 So.2d 153 (Fla.1962). Nothing suggests any such problems in the record before us. Turning to the four conditions required by DeLuca and other decisions, we believe they are all satisfied by the undisputed evidence before the trial court. We consider them in order. First, was the mistake of such consequence as to make enforcement of the contract unconscionable? From our analysis of the reported decisions this refers not to the bid bond, since it contains no mistake, but to the mistake in the bid. That mistake was in the amount of almost $400,000. This was approximately eight per cent of the base bid of $4,890,000. Although we believe this to be unconscionable on its face, we compare it to the amounts involved in other reported cases. Thus we find: Peerless Casualty Co. v. Housing Authority, supra, mistake $34,022, bid $463,733; Boise Junior College District v. Mattefs Construction Co., supra, mistake 14 per cent of $141,000 bid; Wil-Fred’s Inc. v. Metropolitan Sanitary District, supra, mistake $150,000, bid $882,600; City of Baltimore v. DeLuca-Davis Construction Co., supra, mistake $589,880, bid $1,769,064; State Board of Control v. Clutter Construction Corp., supra, mistake $100,000, bid $1,367,000; M.F. Kemper Construction Co. v. City of Los Angeles, 37 Cal.2d 696, 235 P.2d 7 (1951), mistake $301,769, bid $780,305; State Highway Commission v. State Construction Co., supra, mistake $35,000, bid $172,699; A.J. Collela, Inc. v. County of Allegheny, supra, mistake $50,000, bid $144,900; Board of Edn. v. Sever-Williams Co., supra, mistake $145,000, bid $1,242,000; City of Syracuse v. Sarkisian Brothers, Inc., supra, mistake $181,700, bid $3,547,000. Although some of these are proportionately greater than the mistake of Defco, some are smaller in proportion to the bid, and we believe the amount of the mistake was of such grave consequence that it would be unconscionable to enforce it. The appellee argues, however, that forfeiture of the 5 per cent bid bond is not unconscionable because it is the very bid contract which was bargained for and made by the parties. This argument does not go to the issue of unconscionability but rather to the principal issue, i.e., must the bid bond be forfeited despite the presence of legal justification for the refusal to enter into the contract. In all of the cases cited above, the discussion of unconscionability concerns the amount of the mistake in the bid and not the bid security. In each case it appears that the bid security sought to be forfeited was required by statute or by the bidding documents. Thus if unconscionability was to be determined by reference to the fact that the parties knew the amount of the penalty to be exacted, we believe that would have been decisive in many of those cases. We find no such holding. Assuming, arguendo, that we should look to the forfeiture of the bid bond rather than the amount of the mistake, one quarter of a million dollars is still, in the vernacular, a lot of money, and we believe it would be unconscionable to require even this forfeiture in the instant case. The second condition, that the mistake must relate to a material feature of the contract, cannot be disputed. The amount to be paid for the construction is clearly a material feature of the contract. The third condition concerns the question of whether the mistake constituted culpable negligence or the violation of a positive legal duty. If either, then this third requirement is unsatisfied. Since there is no contention that the appellant violated any legal duty, we must determine only whether there was “culpable negligence.” Generally a mechanical, clerical, or mathematical error satisfies this condition whereas an error in judgment does not. Kemper, supra. In fact this distinction highlights the inequitable result of the trial court’s deci sion in this case. The mistake was not one of judgment, as for example, underestimating the cost of labor or materials. It was not intended. We believe this distinction also serves to show the real purpose for the statute requiring forfeiture of the security. The bidder who makes an error in judgment should be penalized if he then refuses to execute the contract. On the other hand, the bidder who submits a bid which is different than that which he intended to make is entitled to relief. Kemper, supra. The type of mistake satisfying this condition has been variously referred to as resulting from some reasonable excuse, Peerless Casualty Co., supra; based upon an erroneous omission and not involving gross negligence, Boise Junior College District, supra; and honest and not gross negligence, DeLuca-Davis, supra. At least one jurisdiction, Illinois, requires that the party seeking rescission prove that the mistake occurred notwithstanding the exercise of reasonable care. Wil-Fred’s Inc. v. Metropolitan Sanitation District, supra. Thus in the present case the appellee argues there was lack of reasonable care. Deposition testimony revealed that the normal procedure would have been to have a second person total the figures on the bid spread sheet and run a tape on those prices as a check on the work of the original clerk. This procedure was not followed. Likewise the original clerk notified one of the estimators working on the project just prior to the bid deadline that her work had not been double-checked. See also John J. Calnan Co. v. Talsma Builders, Inc., 67 Ill.2d 213, 10 Ill.Dec. 242, 367 N.E.2d 695 (1977) where the court considered the failure of a subcontractor to utilize its own bid procedures. Despite finding this to be less than the exercise of reasonable care, the case is distinguishable since the mistake was not discovered until performance under the contract had begun and it was impossible to return the general contractor to status quo. We reject the reasonable care standard since it appears to be nothing more than a test for negligence. We agree with the rationale appearing in the comment to § 157 of the Restatement, Second, Contracts. Section 157 concerns the effect of the fault of the party seeking relief from a mistake and provides: A mistaken party’s fault in failing to know or discover the facts before making the contract does not bar him from avoidance or reformation under the rules stated in this Chapter, unless his fault amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing. The comment to the section states: The mere fact that a mistaken party could have avoided the mistake by the exercise of reasonable care does not preclude either avoidance or reformation. Indeed, since a party can often avoid a mistake by the exercise of such care, the availability of relief would be severely circumscribed if he were to be barred by his negligence. Nevertheless, in extreme cases the mistaken party’s fault is a proper ground for denying him relief for a mistake that he otherwise could have avoided. Although the critical degree of fault is sometimes described as “gross” negligence, that term is not well defined and is avoided in this Section as it is in the Restatement, Second, of Torts. Instead, the rule is stated in terms of good faith and fair dealing. Defco’s burden of showing good faith and fair dealing is satisfied and not in dispute. No facts are suggested by affidavit, deposition, or otherwise from which it could be inferred that there was a lack of good faith or fair dealing. Another method of testing the mistake to determine if it could be “culpable negligence” is comparing it to the other mistakes for which the courts have granted relief. Such a comparison shows several factual situations which are strikingly similar to the instant case. See, for example, Moffett, Hodgkins, & Clarke Co., supra. The annotation in 2 A.L.R.4th, supra, contains several summaries of facts which illustrate and fortify this conclusion. Thus we are left with the question of whether the appellee has been placed in status quo so that it suffers no serious prejudice except loss of bargain. The minutes of the Maraña school board meeting of February 4 show that the board rejected all bids and instructed the architect to prepare to rebid the construction contract. All of the rejected bids including the bid the appellant intended to make exceeded the architect’s estimate by over $350,000. Obviously the board decided to try again. These facts were before the court for its consideration on the cross-motions for summary judgment. The appellants contend that they established that the school had been put in status quo. The appellee offered nothing to refute this conclusion. No evidence shows that the appellee contends that it suffered serious prejudice, or, in fact, any prejudice except the loss of a bargain which was never intended by the appellants. We reverse the judgment and direct the trial court to enter judgment in favor of the appellants. HATHAWAY, J„ and WILLIAM N. SHERRILL, Superior Court Judge, concur. NOTE: Judge LAWRENCE HOWARD having recused himself in this matter, Judge WILLIAM N. SHERRILL was called to sit in his stead and participate in the determination of this decision. . Apparently the trial court fixed the judgment at five per cent of the base bid plus all alternates. Since the offer made to Defco at the meeting on February 4 was for the base bid only and since that was also the language used in Defco’s proposal, we believe judgment on the bid bond should not have exceeded five per cent of $4,890,000 or $244,500.

OPINION HATHAWAY, Judge. Does the “other vehicle” exclusion to the uninsured motorist coverage provided by the Farmers Insurance Company of Arizona (Farmers) insurance policy violate the public policy underlying Arizona’s uninsured motorist statute, A.R.S. § 20-259.01? Appellant acknowledges that the question raised in this declaratory judgment action has been answered adversely to his position by Division One of the Court of Appeals in Owens v. Allied Mutual Insurance Company, 15 Ariz.App. 181, 487 P.2d 402 (1971), but suggests that Owens is incorrect and should not be followed. We agree with his position and reverse. The facts stipulated to by the parties disclose that on January 3, 1983, Michael Calvert, age 18, was injured when the motorcycle he was driving was struck by an uninsured automobile negligently driven by Michael Padilla. Michael Calvert died from his injuries. Jack Calvert, Michael’s father and plaintiff in this action, was, at the time of the accident, the named insured under a motor vehicle liability insurance policy issued by the defendant, Farmers. Michael was a resident of his father’s household at the time of the accident and, consequently, was an “insured person” under the terms of the uninsured motorist coverage of the Farmers policy. The motorcycle Michael was operating was either owned by himself or by his father. It was not specified as an owned vehicle in the policy. Jack Calvert’s insurance policy contained $30,000 in uninsured motorist coverage. Part II of the policy deals with uninsured motorist coverage. The policy provides: “We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the uninsured motor vehicle.” “As used in this Part: 1. Insured person means: a. You or a family member. b. Any other person while occupying your insured car.” “This coverage does not apply to bodily injury sustained by a person: 1. While occupying a motor vehicle owned by you or a family member for which insurance is not afforded under this policy or through being struck by that motor vehicle.” After his son’s death, Jack Calvert submitted a claim to Farmers for uninsured motorist benefits. Farmers denied the claim on the basis of the “other vehicle” exclusion which, as previously specified, precludes uninsured motorist coverage for an insured who is injured while operating a vehicle which is owned by the named insured or another family member, but is not covered by the liability coverage of the policy. The exact issue before us was first considered in Arizona in Owens v. Allied Mutual Insurance Company, supra. There, the insured owned two vehicles, one was insured and the other was not. He was injured while operating the uninsured vehicle and claimed uninsured motorist coverage under the policy that covered the insured vehicle. The policy language, including the “other vehicle” exclusion, was substantially the same as that before us. The insured there made the same argument that is presented to us, i.e., that the exclusion was invalid since the statute mandates uninsured motorist coverage for the insured even though he might be driving an uninsured self-owned automobile. The court held that the statute does not require an insurer to extend uninsured motorist protection to a policyholder while driving his own uninsured vehicle. The court concluded that to hold otherwise would permit an insured to purchase one liability policy on one owned vehicle and thereafter claim uninsured motorist coverage while driving any number of uninsured vehicles, also owned by him. Division One adhered to the same public policy view expressed in Chambers v. Owen, 22 Ariz.App. 175, 525 P.2d 306 (1975), and in Rodriguez v. Maryland Indemnity Insurance Company, 24 Ariz.App. 392, 539 P.2d 196 (1975). Arizona’s Uninsured Motorist statute, A.R.S. § 20-259.01, mandates broad protection for insureds against the risk of injuries resulting from the negligence of uninsured motorists. The statute provides: “§ 20-259.01. Motor vehicle liability policy; uninsurance required; underinsurance optional; definitions; subrogation A. No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state, with respect to any motor vehicle registered or principally garaged in this state, unless coverage is provided in the policy or supplemental to the policy, in limits for bodily injury or death prescribed in subsection B of this section, but not less than the limits prescribed in § 28-1102, under provisions filed with and approved by the director, for the protection of persons insured who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom. For the purposes of the coverage provided for pursuant to this section, ‘uninsured motor vehicles’, subject to the terms and conditions of such coverage, includes any insured motor vehicle if the liability insurer of the vehicle is unable to make payment on the liability of its insured, within the limits of the coverage, because of insolvency. B. Every insurer writing automobile liability or motor vehicle liability policies, as provided in subsection A of this section, shall also make available to the named insured thereunder and by written notice offer the insured and at the request of the insured shall include within the policy uninsured motorist coverage which extends to and covers all persons insured under the policy, in limits not less than the liability limits for bodily injury or death contained within the policy. The offer need not be made in the event of the reinstatement of a lapsed policy or the transfer, substitution, modification or renewal of an existing policy. At the request of the insured, the insured may purchase and the insurer shall then include within the policy uninsured motorist coverage which extends to and covers all persons insured under the policy in any amount up to the liability limits for bodily injury or death contained within the policy but not less than the limits prescribed in subsection A of this section.” The statute, in effect, supplements the Financial Responsibility Act and opens to insureds the option of protecting themselves from financially irresponsible motorists through uninsured motorist insurance. Chase v. State Farm Mut. Auto. Ins. Co., 131 Ariz. 461, 641 P.2d 1305 (App. 1982). As stated in Dairyland Ins. Co. v. Lopez, 22 Ariz.App. 309, 526 P.2d 1264 (1974): “The uninsured motorist statute establishes in this state a public policy that every insured is entitled to recover the damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability in a solvent company.” 22 Ariz.App. at 310, 526 P.2d 1264. The uninsured motorist statute makes no prerequisite to coverage that recovery only be available while in an insured vehicle. The exclusion of coverage relied on by Farmers narrows the coverage mandated by the statute. The insurance policy is a contract and must be read in light of any controlling statutes. Balboa Insurance Company v. State Farm Mutual Automobile Insurance Co., 17 Ariz.App. 157, 496 P.2d 147 (1972). To give effect to the exclusion would diminish what the statute unreservedly has given and allow a gap in coverage which is inconsistent with the purpose of the statute. Chavez v. State Farm Mutual Auto. Ins. Co., 87 N.M. 327, 533 P.2d 100 (1975). The uninsured motorist statute was intended by the legislature to enable the insured to recover damages as though the uninsured motorist were financially responsible. Accordingly, the statute protects “persons insured who are legally entitled to recover damages from owners or operators of uninsured motor vehicles.” In Elledge v. Warren, 263 So.2d 912 (La.App. 1972), the court construed a statute substantially the same as ours, stating: “There is no requirement in the statute that the insured have any relation, at the time of the accident, with any vehicle he owns and that is insured with the insurer. The uninsured motorist protection covers the insured and the family members while riding in uninsured vehicles, while riding in commercial vehicles, while pedestrians or while rocking on the front porch.” 263 So.2d at 918. As we noted in St. Charles v. Allstate Insurance Company, 115 Ariz. 407, 565 P.2d 913 (App.1977), Owens v. Allied Mutual Insurance Company, supra, and its progeny places us “in a dwindling minority” of jurisdictions which uphold the validity of the exclusion. 115 Ariz. at 408, 565 P.2d 913, footnote 1. Appellant calls into question the viability of Owens since the three cases from other jurisdictions relied upon in support of its holding have been overruled. The court’s concern in Owens that an insured could purchase one liability insurance policy on one owned vehicle and thereafter claim uninsured motorist coverage on other owned, but uninsured vehicles, is somewhat allayed by the present mandatory coverage requirement. A.R.S. § 28-1251, et seq. We disagree with Division One decisions upholding validity of the exclusion in question and decline to follow them. Martinez v. Caldwell, 25 Ariz.App. 253, 542 P.2d 1133 (1975). We hold that the other vehicle exclusion violates the public policy underlying Arizona’s uninsured motorist statute and is void, and direct that judgment be entered in favor of appellant. The appellant is awarded costs and attorneys fees on appeal. BIRDSALL, C.J., and HOWARD, J., concur. . Rushing v. Albtate Insurance Company, 216 So.2d 875 (La.App.1968), was overruled by Elledge v. Warren, supra. National Union Indemnity Co. v. Hodges, 238 So.2d 673 (Fla.App. 1970), was overruled in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla. 1971). McElyea v. Safeway Insurance Co., 131 Ill.App.2d 452, 266 N.E.2d 146 (IIl.App.1970), was overruled in Doxtater v. State Farm Mutual Automobile Insurance Co., 8 Ill.App.3d 547, 290 N.E.2d 284 (1972). Courts that have held the "owned by uninsured motor vehicle” exclusion to violate public policy under various uninsured motorist statutes include: State Farm Automobile Insurance Company v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974); Aetna Ins. Co. v. Hurst, 2 Cal.App.3d 1067, 83 Cal.Rptr. 156 (1969) [The California legislature has since amended the California statute to permit this type of exclusion]; Bass v. State Farm Mutual Automobile Insurance Company, 128 Ga.App. 285, 196 S.E.2d 485 (1973); Allstate Insurance Company v. Morgan, 59 Haw. 44, 575 P.2d 477 (1978); State Farm Mutual Automobile Insurance Company v. Robertson, 156 Ind.App. 149, 295 N.E.2d 626 (1973); Barnett v. Crosby, 5 Kan.App.2d 98, 612 P.2d 1250 (1980); Pennsylvania National Mutual Casualty Insurance Company v. Gartelman, 18 A.L.R.4th 623, 288 Md. 151, 416 A.2d 734 (App. 1980); Bradley v. Mid-Century Insurance Company, 409 Mich. 1, 294 N.W.2d 141 (1980); Nygaard v. State Farm Mutual Automobile Insurance Company, 301 Minn. 10, 221 N.W.2d 151 (1974); Otto v. Farmers Insurance Company, 558 S.W.2d 713 (Mo.App.1977); Lowery v. State Farm Mutual Automobile Ins. Co., 285 So.2d 767 (Miss.1973); Jacobson v. Implement Dealers Mutual Insurance Company, 640 P.2d 908 (Mont. 1982); State Farm Mutual Automobile Insurance Company v. Hinkel, 87 Nev. 478, 488 P.2d 1151 (1971); Beek v. Ohio Casualty Insurance Company, 73 N.J. 185, 373 A.2d 654 (1977), affirming the lower court decision reported at 135 N.J.Super. 1, 342 A.2d 547 (App.1975); Cothern v. Emcasco Insurance Company, 555 P.2d 1037 (Okla.1976); State Farm Mutual Insurance Company v. Williams, 481 Pa. 130, 392 A.2d 281 (1978); Hogan v. Home Insurance Company, 260 S.C. 157, 194 S.E.2d 890 (1973); Stephens v. State Farm Mutual Automobile Insurance Company, 508 F.2d 1363 (5th Cir.1975); contra Garcia v. Southern Farm Bureau Casualty Company, 490 S.W.2d 616 (Tex.Civ.App.1973); Allstate Insurance Company v. Meeks, 207 Va. 897, 153 S.E.2d 222 (1967); Touchette v. Northwestern Mutual Insurance Company, 80 Wash.2d 327, 494 P.2d 479 (1972); Bell v. State Farm Mutual Automobile Insurance Company, 157 W.Va. 623, 207 S.E.2d 147 (1974). For a general discussion of this and related matters, see Annot., 30 A.L.R.4th 172 (1984).

BOLLINGER, Superior Judge. Charles N. Thomas, the appellee herein, .sued the city of Bisbee, the appellant herein, for damages in the sum of $25,-000 for alleged personal injuries received in an automobile accident. The case was tried before a jury, and plaintiff received a verdict of $4,000 damages and costs of suit. The injuries complained of were received on the twentieth day of September, 1919, by appellee, when his Ford car was wrecked on the Sims road, in Bisbee, Cochise county, Arizona. The substance of the pleadings in this case is set forth in appellant’s brief, on pages 2 and 3, as follows: “The complaint alleges in substance that on the morning of the 20th day of September, 1919, while the plaintiff was driving over Sims road in his automobile, he overturned into a ditch, receiving certain injuries therefrom, and that the overturn was the direct result of a defective condition in Sims road, as follows: At the place in the street where the plaintiff overturned there was a rather steep declivity, and that around and in the bottom of the incline there was an accumulation of rocks and boulders, negligently and carelessly left by defendant so as to constitute a dangerous obstruction to vehicular traffic; that the road was narrow, and that there was a gully, depression, or ditch precipitous from the road on plaintiff’s right, unbarred in any way; that plaintiff’s automobile struck one of these rocks or boulders, resulting in the overturn. (Abstract of Eecord, 7-9.) “That as a result of such overturning the complaint alleges that the plaintiff was severely cut, bruised, and wounded on his head, body, and limbs; that he has partially lost the sensory and motive power and the reflexes of his arm and leg; that his kidney became affected, subjecting him to a kidney disease involving, as one of its symptoms, unduly frequent urination; that he has suffered great bodily pain and great mental anguish, and that he will be permanently hurt, crippled, and maimed, his bodily and mental faculties for the remainder of his life will be impaired in power and function, and that his earning capacity has been permanently reduced. (Abstract of Eecord, 12-14.) “The defendant filed a general demurrer, admitted the corporate capacity of defendant, and denied the other allegations of the complaint. No plea of contributory negligence was set up in the answer. (Abstract of Eecord, 17, 18.)” In support of his case, Charles N. Thomas, appellee, testified as follows (Abstract of Eecord): “I am 68 years old, and a resident of Cochise county for about 43 years. I have mined, been an officer and night watchman for a number of years, and my health was good — excellent up to September 20, 1919. On September 19, 1919, I came to Bisbee from my ranch about eight miles away in my Ford ear, coming down the main traveled road. At about 4 in the morning, when it was very cloudy and a dark morning, I started home, but found a plank and ‘wooden horses’ across the road with lanterns on it, and I therefore went up Sims road. In this road there was a culvert, and just after passing it I struck a rock in Sims road which threw the back of my car off the road, and it went over the culvert 12 feet. I was caught under the car, and was bleeding. I finally pulled myself out, and went to my son-in-law’s house. As a result of my overturn I received an injury on the right side of my head, a cut over my eye, cut on my right cheek, and one under my left jaw. My shoulder is lame from the accident. Because of said accident I urinate most all the time, have heated sensations, at times my foot-gets cold; at times I cannot tell when I have hot water at my feet, and that I had none of the symptoms before this injury. My head was sore on the left side, and my thinking faculties are not like they were. I begin a subject and forget it. My left hand and arm were bad for six weeks. My left leg jerks, feeling like it is partly dead. I was laid up three days ' from the above injuries. Prior to these injuries my health had -always been good. Now my heart has fluttering spells. At the time of the accident I was employed as a night watchman for merchants of Bisbee. I was earning in the neighborhood of $250 per month. As a result of my iniuries my earnings have been decreased $140 a month.” While there is a .sharp conflict of the testimony given as to the cause, extent and nature of appellee’s injuries, he produced substantial testimony of other witnesses to corroborate his own. The ease was submitted to the jury after they had heard the testimony, and the verdict of the jury is conclusive, and should not be disturbed. Ryder v. Leach, 3 Ariz. 129, 77 Pac. 490; McGowan v. Sullivan, 5 Ariz. 334, 52 Pac. 986; De Mund Lumber Co. v. Stilwell, 8 Ariz. 1, 68 Pac. 543; Barter v. County of Pima, 2 Ariz. 88, 11 Pac. 62; Copper Queen Min. Co. v. Arizona Prince Copper Co., 2 Ariz. 10, 7 Pac. 718; Tweed v. Lowe, 1 Ariz. 488, 2 Pac. 757. Counsel for appellant have abandoned their assignments of error with two exceptions. These exceptions are assignment of error No. I (B) and assignment of . error No. II. Assignment of error No. I (B) is as follows: “Where there is no plea of contributory negligence in the answer, and assuming* no issue litigated thereon, it is error for the court to instruct on an abstract proposition of the law of contributory negligence. Such an instruction is misleading, confusing, and mischievous because it tends to distract the minds of the jury from the real facts in issue.” This assignment of error questions the following instruction given by the trial court (Abstract of Becord, 247-251): “You are further instructed that the defendant in this case does not rely at all upon what is known as the plea of contributory negligence on the part of plaintiff. It is not claimed, in short, that plaintiff’s own negligence in anywise contributed to any injury he may have sustained. The defendant city does, on the other hand, plead that it was guilty of no negligence whatsoever. It is therefore your duty to determine this case without any reference whatever or consideration whatever to any contributory negligence as such upon the part of the plaintiff. In such connection I instruct you that, if you believe that defendant’s negligence as alleged in the complaint brought about the injuries to plaintiff as he alleges in his complaint, no negligence whatever of the plaintiff, unless it solely brought about and produced such injuries, to the entire exclusion of negligence on the part of the city, if you believe it was negligent as alleged, should prevent plaintiff’s recovery. In other words, sometimes a plea.of what is called contributory negligence is interposed; that is, the defendant says, ‘Yes; I was careless; but you were careless also.’ In such cases, if injury was caused by the neglig’ence of both parties, the law is the plaintiff cannot recover, but in this case the city does not claim that the plaintiff’s negligence was partially the cause of the injury, even though the city itself may have partially caused it; the city claims it was in no manner negligent, and therefore, if you believe that the city was negligent, and that its negligence was one of the proximate causes of the injury to plaintiff, you cannot in this case consider whether or not plaintiff’s own negligence was also one of the causes. If the city’s negligence, if you find it was negligent — and of course that is the real issue in the case, if you find it was negligent, — contributed to the injury of plaintiff, then the city would be liable under the law in this case. Of course, the city’s negligence, if it was negligent, must have been one of the proximate causes of the injury.” Assignment of error No. II is as follows: “There being no testimony that plaintiff’s injuries were permanent, or what the loss or probable loss of plaintiff’s earning power in the future would be, or that with any reasonable certainty plaintiff would suffer such a future loss, it was error for the court to instruct the jury that in determining the amount of damages they were to take into consideration the loss of plaintiff’s earning power in the future.” This assignment of error questions the following instruction given by the trial court: “In determining the amount of damages, if you find the city was negligent or caused the damage, you would take into consideration the impaired earning power of the plaintiff, if any, any pain and suffering which he may have undergone by reason of such negligence, loss, as I said, of earning power, past and future, and from these elements you may determine what would be reasonable compensation under the circumstances, but you are not to return any damages unless you first believe the injury was caused by the negligence of the defendant. But if you find for the plaintiff, you will find for him in such sum as you think proper under all the circumstances, not however, exceeding the amount asked for in the complaint.” - A careful examination of the language used by the trial court in the above-quoted instructions fails to convince us that said instructions are of such a'character as to require a reversal in this case. The jury were left to their full liberty by these instructions to determine all issues of fact for themselves. The future earning power of the plaintiff was properly considered by the trial court as one of the elements of damage. Freese v. Kemplay, 118 Fed. 428, 55 C. C. A. 258; Lappe v. Gfeller, 211 Pa. 462, 60 Atl. 1049; Johnson v. Northwestern Pacific Ry. Co., 47 Minn. 430, 50 N. W. 473; U. P. Ry. Co. v. Jones, 49 Fed. 343, 1 C. C. A. 282; Yeager v. Anthracite Brewing Co., 259 Pa. 123, 102 Atl. 418; Robinson v. St. Louis & S. Ry. Co., 103 Mo. App. 110, 77 S. W. 493; Howe v. Medaris, 82 Ill. App. 515-518; Railway Co. v. Morrow (Tex. Civ. App.), 93 S. W. 162, 163. The judgment of the lower court is hereby affirmed. McALISTER, C. J., and ROSS, J., concur.

FLANIGAN, J. The appellants, husband and wife, were jointly charged by the county attorney of Maricopa county with the crime of robbery. During the trial of the cause the state offered and the court admitted, over the objections of appellants, two written confessions subscribed, respectively, by each of the appellants, reciting the circumstances of the crime. The jury found the defendants guilty as charged, and from the judgment entered upon the verdict this appeal is taken. The first assignment of error is that the court erred in admitting the purported confessions in evidence, for the reason that the same were not voluntary. It is argued that the testimony of the defendants shows that the arresting officers used coercion, threats, duress and deception to secure the confessions; and reliance for reversal is especially placed upon the statement made to appellants'by police officer Crowe, who was present when the confessions were made, that it would be best for them to tell the truth, this being, it is claimed, such an inducement and hope of favor and reward to the appellants by one in authority as would render the alleged confessions involuntary. Whether a statement by an accused person is to be considered the free expression of the circumstances of his guilt, and therefore a voluntary confession, or, on the other hand, involuntary, as being in fact induced or obtained by means which render it untrustworthy as evidence, is to be determined when the confession is offered by the judge of the trial court upon a preliminary investigation into the circumstances surrounding the confession. 1 R. C. L., p. 579. See, also, on this point, Berry v. State, 4 Okl. Cr. 202, 31 L. R. A. (N. S.) 849, 111 Pac. 676, and Kermeen v. State, 17 Ariz. 263, 151 Pac. 738. There are many cases which hold that the mere statement to the accused that it would be better for him to tell the truth constitutes such an inducement as will make a confession obtained in consequence of it involuntary. Upon the theory that the accused, although advised to tell the truth, supposes that what the authorities mean is that he is to say he is guilty, in other words, that the advice is equivalent to advice to confess, and this, coupled with the statement that it would be better for the accused to do so, supplies the inducement which is supp.osed to render the statement untrustworthy, many of the authorities, especially some English cases, hold that a confession so procured is inadmissible. See annotation to Ammons v. State, 80 Miss. 592, 92 Am. St. Rep. 607, 18 L. R. A. (N. S.) 768, at page 816, 32 South. 9. The decisions, numerically, and in our firm conviction the better reason, are with the proposition that the use of the language referred to does not in itself vitiate a confession so prompted. “On principle, the advice by any person whatever that it would be better to tell the truth cannot'possibly vitiate the confession, since by hypothesis the worst that it can evoke is the truth, and there is thus no risk of accepting a false confession. The confessor is not obliged to choose between silence and a false confession having powerful advantages; the advantages are attached to the utterance of the truth, and, however tempting we may suppose them to be, there is nothing in the nature of the temptation to make the statement untrustworthy; for if it has availed at all, it has availed to bring out the truth.” 1 Wigmore on Evidence, sec. 832. See, also, cited notes to Ammons v. State, supra, and Roman v. State, 23 Ariz. 67, 201 Pac. 551-554. In the decision last cited it is recognized that the circumstances may be such that the adjuration to an accused person “that it will be better to tell the truth” may imply or convey such a threat or promise as will, if it induces a confession, render it inadmissible in evidence. The real question must therefore be whether, considering all the circumstances, the statement offered as a confession may be relied upon as probably stating the truth. The language used is but a circumstance, though an important one, which may or may not be determinative of the question. In this case, therefore — as in all cases involving the admissibility of statements questioned as to their voluntary character as confessions — the evidence should be examined in its entirety to ascertain whether under all the circumstances it is probable that the temptation or inducement to speak falsely was so great as to render the offered statement untrustworthy. Roman v. State, supra. We have accordingly examined very carefully the evidence taken at the time the confessions were offered, to ascertain whether error was committed in admitting them. The appellants were given unrestricted and full opportunity to present to the judge and jury all testimony offered by them tending to show that the confessions were induced by the unfair means they alleged. We apprehend that no useful purpose will be subserved by detailing the evidence on these issues. It is sufficient to say that the testimony was in decided conflict, the appellants stating they were in various ways coerced to sign the statements, while the testimony of the officers was to the effect that no coercion, threats or duress was used. In the case of State v. Rogoway, 45 Or. 601, 2 Ann. Cas. 431, 78 Pac. 987, 81 Pac. 234, it is held that the determination of the admissibility of a confession will not be disturbed on appeal unless there is clear and manifest error. The court, quoting with ap proval from the decision of the Supreme Court of New Hampshire in State v. Squires, 48 N. H. 364. proceeds to show that the ruling on the objection to admission involves only the decision of a question of fact, as much so as the question whether a witness whose testimony is offered was interested or not, or was qualified to' testify as an expert, or whether the Joss of a paper has been shown, so as to allow the introduction of secondary evidence of its contents, or the like. Quoting with approval, also, from the decision of Fife v. Commonwealth, 29 Pa. 429, the court proceeds to say: “ ‘But the principle is well settled that where the admissibility of evidence depends upon a preliminary question of fact, to be tried by the court, its decision is not to be reversed unless in a ease of clear and manifest error. The court that sees and hears the witnesses must be presumed to have better means of judging on a question of fact than the appellate tribunal, where the witnesses are neither seen nor heard, and where it often happens that their testimony is very imperfectly reported.’ Now, in this case the evidence for the state tended to show that the alleged confession of the defendant was voluntarily made; and, while this evidence is controverted and contradicted, there is not sufficient in the record to justify this court in saying that the trial court erred in holding that the confession was competent and admissible as testimony. The admissibility of the testimony was for the court, and its credibility and weight were for the jury, and were properly submitted to them.” See, also, State v. Storms, 113 Iowa, 385, 86 Am. St. Rep. 380, 85 N. W. 610. Applying this rule to the testimony adduced in the case at bar, we must hold that there is no such showing of clear or manifest error on the part of the court below in admitting the confessions as to call for our disapproval of such rulings. We will presume that the judge of the court below, who saw and heard the witnesses, correctly decided the fact in dispute, on the investigation preliminary to the admission of the confessions. The second assignment of error is that the sentences imposed are invalid, in that the same are in conflict with sections 1127 and 1448 of Penal Code of 1913. In just what this invalidity consists the brief for appellants does not say- and we can only speculate as to the precise basis of the assignment. Because of the similarity of the sections cited in this case to those cited in the case of Clark v. State, 23 Ariz. 470, 204 Pac. 1032, by the same counsel of record in this court, raising the question as to the validity of the judgment under the indeterminate sentence provisions of section 1127, we surmise that it was intended to present here the question made and decided there. If such be the basis of the assignment — and none other is suggested or perceived — the decision in that case must govern here, and the assignment is consequently held to be without merit. There being no error, the judgment is affirmed. ROSS, C. J., and McALISTER, J., concur.

ROSS, J. This appeal is prosecuted from an order granting the plaintiff-appellee a new trial. We are compelled to resort to the abstract of the evidence to find the facts, since counsel have completely ignored the rule of the court requiring them to set forth in their brief “a concise statement of the ease, presenting succinctly the questions involved and the manner in which they are arranged. ’ ’ Buie 7, § 2, Buies of the Supreme Court. The observance of this rule is absolutely necessary to an understanding of the assignments of error and the argument of counsel to follow. The frequency with which it is neglected prompts the court to warn the profession that it constitutes sufficient cause for dismissal. Without adopting that drastic method of disposing ' of this case/ we will assume a burden that properly belongs to counsel, simply because we incline, when we reasonably can, to decide each case upon its merits rather than summarily upon motion or sua sponte. The city of Nogales sued the appellant Smith for a defalcation of $16,631.61 while exercising the office of city treasurer, and joined with him as a defendant his surety the United States Fidelity & Guaranty Company.. A jury returned a verdict for defendants, upon which a. judgment was entered. Thereafter, and within the time allowed by law, plaintiff filed a motion for a new trial, alleging as grounds therefor surprise and newly discovered evidence. As we gather from the showing made in support of motion, the surprise and newly discovered evidence consisted largely, if not entirely, in the discovery of the method adopted by defendant Smith in hiding his peculations. In other words, while the plaintiff had been able to introduce evidence tending to show that defendant Smith was short in the amount sued for, it had failed to disclose to the court and jury how the shortage had come about. At the time of filing motion for new trial, or at least at the time the court ruled on it, an expert accountant had figured out that said defendant had, by means of duplications in some sixty cases, paid the owners of vouchered claims against the city, and also for the same items, had, at a later period, issued checks payable to the city’s depository, or depositories, for his credit. While all the checks and vouchers were introduced in evidence, neither the plaintiff’s counsel nor the jury detected that these lawful claims against the city had been paid twice — once to the rightful owner, and once to the defendant Smith. If what is asserted here as a fact be true, it is clear that to let the judgment stand would be an assent to a palpable miscarriage of justice. When it was shown to the court that the verdict for de fendants was caused by a failure to discover defendant Smith’s method of juggling accounts, the court very properly exercised its discretion in favor of a new trial, and, indeed, to have done less would have been a judicial sanction of a grievous wrong. But it is contended that the court was without power to pass upon the motion for a new trial, because at the time he acted more than twenty days had transpired from the rendition of the judgment, without any stipulation of counsel or order of the court continuing the hearing thereon. Unless a motion for new trial be continued, in one of the ways designated, under paragraph 591, Civil Code of 1913, it is provided that it shall be deemed denied. Construing this statute in Chenoweth v. Prewett, 17 Ariz. 400, 153 Pac. 420, it was held, in effect, that this provision was mandatory and could not be waived and that an order or stipulation to be effective should be entered or made before the expiration of twenty days after the judgment was rendered. "We have come to the conclusion that the denial of the motion by operation of law, unless continued by order of the court or by stipulation, being for the benefit of the party who obtained the judgment, may be waived by him, by stipulation entered into after the expiration of twenty days, and that the stipulation may be presumed from the fact that the parties have appeared and, without objection, agreed to the continuance of the motion, or presented it on its merits in argument before submission to the court for decision. The ruling in Chenoweth v. Prewett, and other cases following it, is modified to that extent. The rule in such cases is well stated in 15 C. J. 845, paragraph 164, as follows: ‘‘But, where the court has general jurisdiction of the subject matter, a lack of jurisdiction of the par ticular case may be waived by failure to take timely and specific objections, or an invocation of or submission to tbe jurisdiction may raise an estoppel to deny such jurisdiction. So also the parties may either expressly or by their conduct, waive objections to remedies pursued in courts having jurisdiction of the subject matter.” In this case the judgment was rendered on October 1, 1920. On November 9th by an order of the court the hearing thereon was set for November 30th. November 18th the hearing was reset for December 18th. December 17th the hearing was reset for January 31, 1921. December 20th the hearing was reset for February 28th. January 20, 1921, the hearing was again reset “by consent of the attorneys for the parties” for February 28th. Thereafter the hearing was reset each month until May 14th, when it was argued and taken under advisement. June 11, 1921, the court entered its order granting the motion for new trial. From the above record it is shown that the appellants not only did not object to the court exercising jurisdiction over the motion for new trial, but actually gave consent thereto. Having done so, we think they should not be permitted in this court to interpose any objection. Appellants likewise make a point that the court was without power to set aside the judgment and grant a new trial after the expiration of six months from the rendition of judgment, and cite in support thereof Leeker v. Leeker, 23 Ariz. 170, 202 Pac. 397. The motion in the Leeker case was under paragraph 600 of the Civil Code, and what was said there as to the limitation of time allowed the court to act upon the motion is not applicable where the motion is for a new trial based upon paragraph 584 of the Civil Code. In proceedings under paragraph 584 the time within which the court must pass upon the motion is not limited, providing it is kept alive by continuances or stipulations, as provided in paragraph 591, supra. We. think the court had jurisdiction to pass upon the motion, and that it did not abuse its discretion in ordering a new trial. The judgment is affirmed. McALISTER, C. J., and LYMAN, J., concur.

FLANIGAN, J. This action was brought by appellees to recover damages for injuries alleged to have been sustained by the flooding of their property through the negligence of appellant, City of Globe, in the grading and filling of the natural wash along what is known as Hackney Avenue in said city. In the course of this work the defendant city, it was alleged, did not exercise precaution to build two culverts or bridges of sufficient size to carry the flood waters that might be expected to flow down the wash, as shown by the experience of previous years. The proof offered on behalf of the plaintiffs tended to show that a flood which occurred in said city on July 12,1919, because of the obstruction caused by the work and the insufficient size of two culverts, was diverted from the natural channel and flowed down and upon the property of plaintiffs. The property so injured consisted of two buildings, one of which was known as the International Hotel, the npper story thereof being divided into rooms for snch purpose, the lower floor consisting of three storerooms and a stairway leading to the upper story. The side and partition walls between the storerooms and stairway are five large adobe walls about three feet in thickness, the rear wall of the building being also of adobe. To the rear of this building and on the same lots is another one-story adobe building consisting of ten rooms. The case was tried to the court, sitting with a jury, which returned a verdict for the plaintiff in the sum of $3,000, and judgment was rendered by the court upon this verdict in the sum awarded. From this judgment the defendant appeals. The first assignment of error is that the action is not maintainable because no claim or demand for damages by reason of such injuries was ever presented to the common council of the city of Globe, as required by an ordinance of said city; it being asserted that under the provisions of this ordinance the presentation of such claim was a condition precedent to the right of plaintiff to maintain this action. The questions arising upon this assignment have been argued upon the assumption that the interpretation of the ordinance referred to is decisive of the question thus raised. But our attention has not been directed to any statutory provision or provision of the general laws under which the defendant city was incorporated which requires the filing or submission of any such claim to the governing body of the city of Globe as a condition precedent to plaintiffs’ right of action. Neither has any authority been cited to us which holds that a municipal corporation may by its own ordinances alone exculpate itself from liability for a tort. In the absence of any such statutory provision, there can be no doubt that the presentation of a claim for the payment of the damages sustained by reason of a tort committed by a municipal corporation is not a prerequisite to liability therefor. See Gill v. City of Oakland, 124 Cal. 335, 57 Pac. 150, and generally, Dillon on Municipal Corporations, 5th ed., § 1613, and cases cited in Miller v. Mullan, 17 Idaho, 28, 19 Ann. Cas. 1113, 104 Pac. 660; 28 Cyc. 1757. The giving of the following instruction is assigned as error: “You are further instructed, gentlemen of the jury, that in the trial of this case it becomes material for you to find from a preponderance of the evidence, as I have defined that phrase to you, as to whether or not the city of Globe was negligent in the construction of the culvert which has been mentioned here as culvert No. 1 and the culvert No. 2, and if you should find from a preponderance of the evidence that the city was negligent in constructing culvert No. 1 and culvert No. 2 in that same were made too small for the purpose of carrying the waters that might be expected to flow down Hackney wash, you are instructed that it becomes immaterial as to whether or not the buildings testified to clogged culvert No. 1, and the plaintiff in this case would be entitled to recover if you find that the plaintiff was damaged by virtue of the water being diverted from culvert No. 1 by reason of the insufficient size and flowed down upon and damaged the property of the plaintiff.” One of the principal defenses interposed by the defendant was that culvert No. 1 on Hackney Avenue became clogged by the washing against it of some small church buildings in the vicinity, and that without the operation of said cause the damage would not have been sustained. The defendant introduced a number of witnesses who testified that before the culvert became clogged by these buildings the culvert was carrying the water successfully and that, if the buildings had not gone into or against this culvert, the water would have gone harmlessly away. We presume it was intended by the instruction complained of to inform the jury that, if defendant was negligent in the construction of the culverts in that they were made too small for the purpose of carrying the watérs that might be expected to flow down the wash, and such negligence was the sole cause of the injury, the jury should attach no significance to the obstruction of culvert No. 1 by these buildings. A scrutiny of the instruction shows it to be susceptible of this interpretation, and it may be that, so understood, it is defensible as an abstractly correct statement of the law. On the supposition, however, that defendant’s negligence alone produced the injury, no remote cause nor mere attendant condition, whatever it might be, was of any importance, and by selecting and emphasizing as “immaterial” the fact of the obstruction of the culvert by the church buildings the jury were almost necessarily bound to infer that less weight was to be accorded the particular defense mentioned than they might otherwise think it entitled to receive. The reference to the obstruction of the culvert by the buildings in connection only with the immateriality of that fact, without further explanation or comment, must necessarily have obscured the real merits of the defense interposed. The instruction therefore tended to mislead and confuse the jury and to detract from the fair consideration of a defense supported by the very positive testimony of several witnesses. We should not perhaps reverse the judgment for such error alone if an instruction properly covering "this issue had been given. This was not done. The defendant requested the court to instruct the jury as follows: “If you should find from the evidence that said culvert became clogged and choked without any negligence on the part of the defendant, and that said clogging and choking* caused said water to back up and overflow the embankment erected by said defendant, thereby causing the damage complained of by plaintiffs, and that said damage was not in any way directly contributed to by any negligence on the part of the city of Globe, and if you further believe from the evidence that the proximate cause of the injury to plaintiff’s property was caused by the said culvert becoming clogged and choked during said storm by means over which the city had no control, to wit, by a house or building built and owned by parties other than the city, and thereby forcing the water from said storm that was then passing and running through said culvert to back up and flow over said embankment, and thereby causing said embankment to give way, and thereby permitting said water to flow down said Hackney Avenue on to the property of the plaintiffs, causing the damage complained of, if any, then the defendant is not liable for the damage sustained by the plaintiffs, and you must so find,” —which instruction was refused. Nor was anything else to the same purport given. The instruction so requested is obviously not to be commended as an example of perspicuous and concise expression, but, as it embodies a theory of the facts which there was evidence to establish, and correctly states the law applicable thereto, the defendant was entitled to have the jury instructed in accordance therewith. We are convinced that the defendant was deprived of a fair presentation of one of its most substantial defenses against the claim of plaintiffs, and that the judgment should be reversed for such reason. The court instructed the jury as follows: “You are instructed that the measure of damages for the destruction of a building, or where the building is so permanently injured that it cannot be repaired, and where the building and the land on which it is situated belong to the same person, is the difference between the actual cash value of the property immediately before the damage to it and its actual cash value immediately after the damage to it, and that such value is to he ascertained by taking the difference of the value of the entire property immediately before the damage to said building and the value thereof immediately after such damage.” It is claimed by appellant that, as the action is for injuries to the buildings, and not to the land, the true measure of damages is the amount it would cost to repair the buildings and to place the same in as good condition as they were prior to the flood. The testimony on behalf of the plaintiffs tended to show that the buildings in certain respects were so injured that it was impossible to repair them, saturation of the adobe walls having made them soft and yielding, so that the walls, partitions and foundations cracked and settled, and the buildings sagged and tipped away from the perpendicular. Nevertheless plaintiffs at intervals during a period of ten months made certain repairs to the buildings at a cost, as they testified, of about $2,000. Testimony was also offered to show the difference in value of the land and buildings before and after the flood. On the part of defendant there was testimony introduced tending to prove that the permanent injuries to the buildings were caused not by the flood, but by a fire which occurred some time in 1914 and in other respects that the buildings had not been permanently damaged by the flood waters. The rule given in by far the greater number of cases is that the proper measure of damages for the destruction or injury of buildings, fences and the like improvements, which may at once be replaced, where the exact cost of restoring the property is capable of definite ascertainment, there being no damage to the realty itself, is the cost of restoring or replacing such property with compensation for the loss or impairment of its use during the reasonable time neces sary to make suck repairs or to effect suck restoration. Keats v. Gas Co. of Luzerne County, 29 Pa. Super. Ct. 480; Helbling v. Allegheny Cemetery Co., 201 Pa. 171, 50 Atl. 970; Lexington & E. R. Co. v. Baker, 156 Ky. 431, 161 S. W. 228; Cincinnati, N. O. & T. P. R. Co. v. Falconer, 30 Ky. Law Rep. 152, 97 S. W. 727; Adams & Sullivan v. Sengel, 177 Ky. 535, 7 A. L. R. 268, 197 S. W. 974; Cooper v. Kankakee E. L. Co., 164 Ill. App. 581; Fitz Simons & Connell Co. v. Braun & Fitts, 94 Ill. App. 533; same case on appeal, 199 Ill. 390, 59 L. R. A. 421, 65 N. E. 249; Slavin v. State, 152 N. Y. 45, 46 N. E. 321; White v. Chicago, M. & St. P. R. Co., 1 S. D. 326, 9 L. R. A. 824, 47 N. W. 146; Watson v. Mississippi River Power Co., 174 Iowa, 23, L. R. A. 1916D, 101, 156 N. W. 188; Silva v. City Council of City of McAlester, 46 Okl. 150, 148 Pac. 150; Anderson v. Miller, 96 Tenn. 35, 54 Am. St. Rep. 812, 31 L. R. A. 604, 33 S. W. 615; Empire Mills Co. v. Burrell Eng. & Const. Co., 18 Ga. App. 253, 89 S. E. 530; Bates v. Warrick, 77 N. J. L. 387, 71 Atl. 1116; 8 R. C. L., § 46, p. 485. A different rule is applied wkere tke injury is of suck a character as to be irremediable except at great cost, or wkere tke property cannot be restored to its former condition. Tke damage in suck cases is held to be tke depreciation in tke market value of the property by reason of tke injury, being tke difference in suck value immediately before and immediately after tke sustaining thereof. Hamilton Building Co. v. Rapid Transit Subway Const. Co., 102 Misc. Rep. 433, 170 N. Y. Supp. 4; Kentucky Traction & Terminal Co. v. Bain, 161 Ky. 44, 170 S. W. 499; Hopkins v. American Pneumatic Service Co., 194 Mass. 582, 80 N. E. 624. And wkere tke property has no market value, as suck tke difference in tke actual cask value under such circumstances will unquestionably be tke proper measure of suck damages. Cincinnati, N. O. & T. P. R. Co. v. Falconer, supra; Chicago, R. I. & P. R. Co. v. Galvin, 59 Okl. 258, L. R. A. 1917A, 365, 158 Pac. 1153; Jacksonville, T. & K. W. R. Co. v. Peninsular Land, Transp. & Mfg. Co., 27 Fla. 1, 157, 17 L. R. A. 33, 65, 9 South. 661. The reasons for the application of the different rules to the two cases are expressed in the case of Cincinnati, N. O. & T. P. R. Co. v. Falconer, supra, as follows: “Compensation is the bottom principle of the law of damages. To restore the party injured, as near as may be, to his former position, is the purpose of allowing a money equivalent of his property which has been taken, injured, or destroyed. If the thing taken or destroyed can be replaced in the market, then obviously that sum of money which will buy another like it will repair the injury. So, if property is injured, but not destroyed, ordinarily the measure of damages, where the property can be repaired so as to be as it was before, is that sum that will restore the former condition. ' If the injury is such that it cannot be repaired by bestowing something upon, or adding it to, the injured property, then the measure of damages would be the value of the property just before its injury and its market value afterward. The latter measure is adopted, hot as the ideal one, but as the surest of which the case is susceptible.” And also in Hopkins v. American Pneumatic Service Co., supra: “The cost of restoration of the property to its former condition does not necessarily furnish a true criterion for determining damages. Sometimes to make such a restoration would be an uneconomical and improper way of using the property. It might involve a very large and disproportionate expense to relieve from the consequences of a slight injury. In many eases the cost of repairs would be an accurate measure of the damages. To incur the cost is often the best way of dealing with the property.” For further exposition of these reasons, see Meyer v. City of Rosedale, 84 Kan. 302, 113 Pac. 1043, and Hartshorn v. Chaddock, 135 N. Y. 116, 17 L. R. A. 426, 31 N. E. 997. The application of these rules should not ordinarily produce substantial divergence in results, for even in those cases which hold that, where the injury is reparable at reasonable cost, the true measure of damages is the depreciation in the value of the property, it would seem to have been generally held proper to admit evidence of the cost of repairs and of the prior and subsequent condition of the property as relevant to prove the depreciation in value. See, for example, Jeffress v. Norfolk Southern R. Co., 158 N. C. 215, 73 S. E. 1013. On this point also see Hopkins v. American Pneumatic Service Co., supra, and Bates v. Warrick, supra. Under these authorities it would have been proper to instruct the jury, that, if the buildings were so permanently injured that it would be impossible by repairs to restore them to their former condition, and the buildings and the land on which they are situated belong to the same person, the true measure of damages would be the difference between the actual cash value of the property immediately before the injury and its actual cash value immediately afterwards. In the event that the jury should believe that the buildings could be restored to their former condition, then the cost of the repairs required to effect such restoration, together with compensation for the loss of the use of the property during the time necessary to effect the same, would be the true measure of damages, such sum not to exceed, however, the difference in the value of the entire property before and after the injury. The limitation last given is undoubtedly, proper upon the principle expressed in the case of Hartshorn v. Chaddock, supra, that when the cost of restoration is more than the diminution in the value of the whole property, by reason of the injury, the latter is generally the true measure of damages; the rule of avoidable consequences requiring- in such cases that the plaintiff shall diminish the loss so far as possible. See, also, Enid & A. R. Co. v. Wiley, 14 Okl. 310, 78 Pac. 96. On the trial the court permitted the introduction of evidence as to the cost of repairs on the buildings and the market value of the property before and after the flood. Such testimony was unquestionably proper, and the same evidence should be permitted on a new trial as relevant to either view of the facts the jury might take under the conflicting testimony. What we have said will, we think, sufficiently indicate to court and counsel the rules to be followed on a new trial of the cause, and we are confident that instructions can be drawn which will fairly present the merits of the case to the jury. The judgment will be reversed and the cause remanded, with instructions to grant a new trial. BOSS, G. J., and MoÁLISTEE, J., concur.

FLANIGAN, J. This proceeding originated in this court npon the petition of the relators, Van Dyke, Scott and the Southern Arizona Publishing Company, for the issuance of an alternative writ of prohibition directed to the respondents, the superior court of Gila county and J. E. CROSBY, Judge of the superior court of Navajo county, acting as judge of the superior court of Gila county, praying that the said respondents he prohibited from taking further action in certain contempt proceedings then pending in said superior court against the relators. Due to different understandings concerning the notice to he given of the hearing on the application for the alternative writ, respondents did not attend such hearing, and the alternative writ was issued as prayed for, and the respondents were ordered to show cause before this court why the writ should not be made absolute. Pursuant to this order the respondents appeared, and demurred to the petition upon the ground that the facts alleged therein are not sufficient to warrant the issuance of the writ, and by answer admitted the truth of the substantial averments set forth in the petition. From the allegations of the petition we state so much of the facts as are necessary to present the questions involved. On April 27, 1922, George M. Elledge, on behalf of himself and other taxpayers and voters of the town of Miami, Gila county, Arizona, filed in the superior court of that county his verified complaint, as plaintiff, against L. D. Van Dyke, mayor of the town of Miami, George R. Raynolds, clerk of said town, George F. Senner, town attorney thereof, Southern Arizona Publishing Company, a corporation, Roy Kelley, King C. Light, James Elzie Owen, M. S. Quinleven, A1 Schatzkey, Arthur Turner, L. D. Van Dyke, and the town of Miami, defendants, alleging in said complaint that a certain primary election held in said town on April 5, 1922, was null and void and ineffectual for any purpose whatsoever, because of certain fraudulent and unlawful acts committed by said defendants, and especially because of the fraudulent and unlawful manner in which said pretended primary election was called and held, all of which was fully described in the complaint. The complaint prayed for an order requiring the defendants to appéar and show cause why said primary election should not be declared null and void and why a permanent injunction and restraining order should not issue to enjoin defendants from taking any step to issue the ballots to be used at an election within said town called for May 22, 1922, on which ballots should be printed, written or in any way set forth, the names of the defendants Kelley, Light, Quinleven, Schatzkey, Turner, Owen and Van Dyke; also from alleging or holding ont to any voter, or voters, any assertion that said defendants, or any of them, had been regularly or lawfully nominated as candidates of the Democratic, or any other party, for officers of the town council of the town of Miami. Upon the filing of the complaint an order was issued as prayed, requiring the defendants to show cause on May 9th why the permanent injunction and restraining order should not issue, and this order was served on the defendants. Thereafter, on May 8th, the defendants made affidavit in accordance with paragraph 500, Revised Statutes of Arizona of 1913, that they had reason to believe, and did believe, that on account of the bias and prejudice of the presiding Judge, Hon. G. W. SHUTE, they could not obtain a fair and'-impartial trial of said cause before him. Accordingly, on May 9th, Judge SHUTE requested Judge J. E. CROSBY, Judge of the superior court of Navajo county, to preside at the trial of said cause and to hear all matters involved therein, and the cause was thereupon continued until May 10th to enable Judge CROSBY to comply with such request. On that day Judge CROSBY presided over the superior court of Gila county at the trial of the cause, and thereafter heard all matters subsequently presented therein. On May 10th the defendants demurred and answered to the complaint. On May 11th the demurrer was overriiled, and the cause tried, argued and submitted, and by the judge taken under advisement. On May 12th, in the forenoon, Judge CROSBY announced his opinion that the plaintiff Elledge was entitled to judgment declaring and adjudging the actions of the defendants Van Dyke, Quinleven, Turner and Collins, as the mayor and common council of the town of Miami, in calling the primary election of April 5th, to be fraudulent and ineffectual in so far as the defendants Van Dyke, Turner and Quinleven were concerned, and that said defendants were not entitled to any rights under said primary election, nor to have their names set forth on the official ballots for the town election to be held on May 22d, and enjoined and restrained all the defendants accordingly from posting, printing, publishing, circulating or furnishing to the voters any official ballot or ballots for said election on which were printed or written the names of said defendants as the candidates of the Democratic or any other party. The defendants thereupon filed motion for a new trial, which was presented, argued and taken under advisement. At 9 o’clock in the evening of that day a formal judgment, in accordance with the announcement of the court, was signed, and at the same time the motion for new trial was denied. On May 13th the defendants gave notice of appeal to this court from such judgment, but have never perfected such appeal by giving the undertaking required by law. It further appears that the relator the Southern Arizona Publishing Company at all said times owned and published in the town of Miami a certain newspaper known as the “Daily Arizona Silver Belt,” and that the paper circulated generally throughout the state, and more especially in Gila county and in the town of Miami and city of Globe, Globe being the county seat where the courthouse in which the court is held is situated; that Cleve W. Van Dyke is the owner of all the capital stock of said company, and exercises full and absolute control and management of said newspaper; that respondent Scott at all said times was the editor of said newspaper. On May 9th, while the cause was pending, there was published in said newspaper an article entitled “New Uses of Government by Injunction”; on May 10th, an article entitled “ ‘Cootie’ Officials for Miami Would be Like Putting Enemy Soldiers on Picket Duty for a Sleeping Army”; on May 12th, before the signing of the judgment and the denial of the motion for new trial, two articles, entitled as follows: “Court Wants Names of Kelley, Schatzkey, Light and Owen on Ballot, Van Dyke, Turner and Quinleven Off,” and “Stand Firm! There must be No Intellectual Bisbee Deportation of Miami Democracy at the Hands of the Copper Companies”; on May 13th an article entitled “Void or Valid,” and another “Retrogressional. ’ ’ The facts we have just summarized are set forth in an affidavit of said Elledge filed in said court, and entitled “In the Matter of the Proceedings against Cleve W. Van Dyke, Walter J. Scott and the Southern Arizona Publishing Company, a Corporation, for Contempt of Court,” and the affidavit concludes as follows: “That each and all of said articles were published of and concerning this court and the judges thereof, and of and concerning said cause No. 4185-B (the docket number of the above-entitled case in the superior court of Gila county), and of and concerning the parties thereto and their attorneys; that the publication' of said articles in said newspaper as aforesaid was calculated, and was intended by the said Cleve W. Van Dyke, the said Walter J. Scott, and the said the Southern Arizona Publishing Company, to hinder, obstruct, embarrass, and prevent the due administration of justice in said cause; that in procuring and causing said articles to be published and in consenting to, conniving at, and approving the publication of said articles in said newspaper, as aforesaid, the said Cleve W. Van Dyke, the said Walter J. Scott and the said the Southern Arizona Publishing Company, and each of them, have been and are guilty of a contempt of this court; and that this affiant now moves and prays this court to issue its order requiring the said Cleve W. Van Dyke, the said Walter J. Scott, and the said the Southern Arizona Publishing Company, and each of them, to show canse upon a day certain why they and each of them should not'be punished for said contempt.” Upon the filing of this affidavit, which set forth the publications mentioned, appended thereto in haec verba as exhibits,_ the court on June 7th issued an order directed to the alleged contemnors, Van Dyke, Scott and the Southern Arizona Publishing Company, which required them to appear before the court on June 9th, then and there to show cause why they, and each of them, should not be punished for contempt. The order was thereupon served upon the relator company and Scott, and later upon Van Dyke. In answer to the order to show cause the relators Scott and the company presented and filed their objections to the jurisdiction of the court to hear or determine the contempt proceedings, together with affidavits to the effect that they could not have a fair and impartial trial of said matter before the said J. E. CROSBY as acting judge, because of the bias and prejudice of the said CROSBY against said relators. The judge nevertheless disregarded the disqualifying affidavit, and proceeded to hear the objection to the jurisdiction of the court, and overruled such objection. There was then filed a motion to dismiss, upon grounds which so far as important will be adverted to later in the course of this opinion. This motion was likewise denied. Thereupon counsel for said respondents announced their desire to enter a plea of not guilty, but, as is alleged in the petition for the writ, Judge CROSBY refused to permit such plea to be entered, and— “compelled said respondents, over their objections, to prepare and file their answer, verified by oath, to the said accusation contained in said affidavit of said Elledge, which said verified answer was presented and filed under protest of both, of said relators that the same was compelling them, and each of them, to be witnesses against themselves in a criminal prosecution.” The next step was a demand for a jury trial. This demand was denied, and the court proceeded to a determination of the issues made by the affidavit and verified answer, and upon the conclusion of such hearing found the relators Scott and the Southern Arizona Publishing Company guilty of contempt of court as alleged in the affidavit of Elledge, and fixed the tenth day of July, 1922, as the time for passing sentence. In answer to the order to show cause the relator Van Dyke filed the same objection to the jurisdiction of the court, with like affidavit and motion, as did the other relators, with the exception that he had not filed his answer to the proceedings, and the hearing on his pleas had not taken place, nor had rulings been made by the court in his case at the time this writ was applied for and the alternative order made. It is alleged, however, that the court is prepared to, and will, deal with him as it has dealt with the other relators. Before the time arrived to pronounce judgment upon relators Scott and the Southern Arizona Publishing Company, the petition for writ of prohibition was filed in this court, and all further proceedings, including the imposition of sentence against the relators adjudged guilty of contempt, were stayed by our order. The question for determination is whether the alternative writ of prohibition should be quashed, or made absolute. Spelling, in his work “Injunctions and Other Extraordinary Demedies,” second edition, section 1716, defines the writ of prohibition to be: “That process by which a superior court prevents an inferior court or tribunal from usurping or exercising a jurisdiction with which it has not been vested by law. It is an extraordinary writ, because it only issues when the party seeking it is without other adequate means of redress for the wrong about to be inflicted by the act of the inferior tribunal. The writ was well known to the common law, being frequently resorted to to prevent usurpations of jurisdiction (by inferior tribunals) and to keep them within the jurisdictional limits prescribed for them by law. But the writ of prohibition lies only when the inferior court proposes to exceed its lawful jurisdiction as to the person or the subject-matter, or in the enforcement of its rulings in a manner or by means not intrusted to its judgment or discretion.” See, also, 22 B. C. L. 19, and cases cited. This court held in Crowned King Mng. Co. v. District Court, 7 Ariz. 263, 64 Pac. 439, quoting the language of the Supreme Court of the United States in the case of In re Rice, 155 U. S. 402, 39 L. Ed. 201, 15 Sup. Ct. Rep. 152: “Where it appears that a court whose action is sought to be prohibited has clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, a party who has objected to the jurisdiction at the outset, and has no other remedy, is entitled to a writ of prohibition as a matter of right. But where there is another legal remedy by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends on facts which are not made matter of record, or where the application is made by a stranger, the granting or refusal of the writ is discretionary.” See, also, Johnson v. Betts, 21 Ariz. 365, 188 Pac. 271. Complementary to these rules the law is: “That a writ of prohibition may not ordinarily be used as a process for the review and correction of errors committed by inferior tribunals. Mere error, irregularity, or mistake in the proceeding’s of a court having jurisdiction does not justify a resort to the extraordinary remedy by prohibition, both because there has been no usurpation or abuse of power, and because there exist other adequate remedies.” 22 E. C. L. 23. See Silver Peak Mines v. Second Judicial Dist. Court, 33 Nev. 97, Ann. Cas. 1913D, 587, and authorities cited in note, 110 Pac. 503; Sperry v. Sanders, 50 W. Va. 70, 40 S. E. 327; Fleshman v. McWhorter, 54 W. Va. 161, 46 S. E. 116; Powhatan Coal & Coke Co. v. Ritz, 60 W. Va. 395, 9 L. R. A. (N. S.) 1225, 56 S. E. 257. Such being the nature and extent of our jurisdiction in this proceeding, we next inquire whether any of the publications can be said to have been contemptuous, and as preliminary to such discussion we summarize and quote from certain of the articles'. The article of May 9th, entitled “New Uses of Government by Injunction,” begins: “A new interpretation is being attempted in the use of the court power of injunction by the ‘hard boiled’ mercenary politicians who have been sent in to ‘carpet bag’ Miami. “During strikes the power of injunction has been twisted from the protection of property rights until it has been successfully turned into ‘Government by Injunction.’ However, it remained to the Absentee Capitalistic forces to go a step farther in the application of this judicial power which ought rarely to be invoked. These forces, through their ‘cootie’ affidavit men, and their ‘cootie’ lawyers have asked the judiciary to restrain the democracy of Miami from placing a ticket upon the ballot to be used at the town election, May 22.” The article then goes on to charge that the “absentee capitalistic” forces concocted a scheme to keep the people of Miami from voting the Democratic ticket and from placing the name of a Democrat on the ballot, all in pursuance of a design to take over the power of government in Miami; and recites the steps taken to effectuate such scheme, amongst others the following: “Back door slanderers were employed to circulate this propaganda all over town. Other stories, conceded in a public speech made by their ‘cootie’ attorney, to be criminal libel, were circulated.” “Their whole campaign has been organized, financed and propagandized with this political maneuver in view. With one grand swoop they- expected to march into the superior court, secure an injunction and win the election because they would have no opposition. ’ ’ “As one of the ‘cooties’ remarked, a whole week before the injunction was even to be decided, and nearly two weeks before election day, ‘next Wednesday we will celebrate the victory of our ticket.’ ” ‘ ‘ imagine Miami and its, improvement program, its prosperity and its $240,000 in cash, turned over to a ‘cootie’ administration, capable of figuring out a complete criminal program of this sort.” “This whole imported crowd of colonized ‘cooties’ combined has not the intelligence, even in gutter snipe tactics, to win anything that is really contested. ’ ’ “Their efforts will be rewarded with the shame that is always the reward of cowardice and crime and their defeat will show condemnation on the part of all good citizens of Miami.” The next articles, being those entitled “ ‘Cootie’ Officials for Miami Would be Like Putting Enemy Soldiers on Picket Duty for a Sleeping Army,” and “Court Wants Names of Kelley, Schatzkey, Light and Owen on Ballot, Van Dyke, Turner and Quinleven off,” do not appear to be contemptuous. The first article treats of the political aspects of the local situation. While extravagant in language and pro-fluent in epithet, it does not refer to the pending cause and we must presume it to have been justified as an expression of opinion on the issues of the political campaign then in progress. Certainly so, if we take for granted- — which we think we should -without further showing — that relators believed the interests of the community would be best served by electing the candidates they were supporting. “Whatever other responsibility the relators might be under for the publication of this article, we think it cannot be deemed contemptuous. The second article purports to be an account of what occurred in the courtroom when the decision of the case was announed by Judge CROSBY. Aside from one or two expressions as to the judge’s demeanor and utterances, it seems to be entirely unexceptionable, and for aught we know is a fair and truthful account of actual happenings. In any event, it is not charged to be an untruthful or unfair statement of such occurrences. The next article, published on May 12th, is entitled “Stand Firm! There must be No Intellectual Bisbee Deportation of Miami Democracy at the Hands of the Copper Companies,” in which the following occurs: “It was no accident which placed on the bench in a neighboring and rival city in an atmosphere often unfriendly to Miami, a superior court judge who no matter what his charming qualities may have been otherwise, appears to have understood and sympathized with the growth and development of the democratic forces of Miami about -as much as the average cattle man understands and sympathizes with the average mucker or miner. “It was no accident which caused that judge to summon another judge from the agricultural regions of the north who no matter how much he might at times appear to be grasping for the truth, the Ariadne clew out of this maze of copper company tainted falsehoods, at other times appeared to have been unable to grasp, the fundamental fact that behind all and above all, as light shines above darkness, could be seen the wonderful story, the marvelous story, the story without a parallel in the history of the world of a great people of a great town seeking to free themselves from copper company domination and dictation. “It was no accident which put into this case a criminal lawyer who used all of his knowledge and skill and cunning gained by close contact with criminals to attempt to hector, brow beat and badger witnesses who were trying to tell the truth, in a political case, the whole truth and nothing but the truth. “It was no accident which caused this particular lawyer to write a petition so tainted with falsehoods that the last words on his lips as the curtain rang down on the scene yesterday afternoon were apologies to the court for his client, Elledge, having sworn that AFTER that meeting on the night of March 6 that the members of the council went out and secured signatures on their nominating petitions. “It was no accident which caused a good Christian girl, a pupil in the Miami high school, acting as a stenographer for Attorney Senner to be placed in a position where she was able to show how an attempt had been made by two of the witnesses for the plaintiff to destroy the character of Town Attorney Senner; it was no accident that this girl was able to prove that the testimony to the effect that one of the witnesses for the defense had closed the door and stood against the door with the idea of securing secrecy was absolutely false. . . . “But not one scintilla of evidence has been produced in the present hearing of the case of Elledge vs. the officials of the Town of Miami to prove fraud for the reason that no fraud has been committed.” We consider later the publications of May 13th entitled “Void or Valid” and “Retrogressional.” In State v. Galloway & Rhea, 5 Cold. (Tenn.) 325, 98 Am. Dec. 404, at page 416, the court quotes with approval the following language from State v. Frew, 24 W. Va. 416, 49 Am. Rep. 257: “Courts, therefore, look with great disfavor upon the publication of pending proceedings; and there is abundant authority to support the proposition that the publication in a newspaper of an article commenting upon proceedings in court then pending and undetermined, or reflecting upon the court, the jury, the parties, or the officers of the court, with reference to the suit, in such a way as to influence the decision of the controversy, by prejudicing the public mind with respect to the parties to the cause or the merits thereof, or to otherwise impede, embarrass, obstruct, or corrupt the administration of justice, and with that obvious purpose, is a contempt of court, and punishable by attachment.” See, also, State v. Tugwell, 19 Wash. 238, 43 L. R. A. 717, 52 Pac. 1056; State v. Kaiser, 20 Or. 50, 8 L. R. A. 584, 23 Pac. 964; People v. Wilson, 64 Ill. 221, 16 Am. Rep. 528; State v. Frew, supra; Hughes v. Territory, 10 Ariz. 119, 6 L. R. A. (N. S.) 573, 85 Pac. 1059; Meyers v. State, 46 Ohio St. 473, 13 Am. St. Rep. 638, 22 N. E. 43; Tate v. State, 132 Tenn. 131, 177 S. W. 69; Patterson v. Colorado, 205 U. S. 454, 10 Ann. Cas. 689, 51 L. Ed. 879, 27 Sup. Ct. Rep. 556 (see, also, Rose’s U. S. Notes); 6 R. C. L. 509, and cases cited. Publications of this character are classified as criminal contempts, being acts which obstruct the administration of justice or tend to bring the court into disrepute, as distinguished from civil contempts, which consist in failing to do something which the contemnor is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court. Wyatt v. People, 17 Colo. 252, 28 Pac. 961, loc. cit. 963; People v. News-Times Publishing Co., 35 Colo. 253, 84 Pac. 912; Bessette v. Conkey Co., 194 U. S. 324, 48 L. Ed. 997, 24 Sup. Ct. Rep. 665 (see, also, Rose’s U. S. Notes). The decided weight of authority and reason support the rule that the affidavit or information, or other accusatory paper, upon which the proceedings are founded, shall state facts which, if established, constitute the offense, and if the charge is not sufficient in such respect the court is without jurisdiction to proceed. 13 C. J. 65, cases cited; Wyatt v. People, supra. Though this be true, it is also the rule, at least in the absence of statutory requirement, that the accusation need not be as direct, specific and certain as is required by law in indictments or informations for criminal offenses. State v. District Court, 113 Minn. 304, 129 N. W. 583. In Schwartz v. United States, 217 Fed. 866, 133 C. C. A. 576, it is said: “There is no fixed formula for contempt proceedings, and technical accuracy is not required. It is sufficient if the offense is set out, so that the defendant is clearly informed of the. charges against him and whether a criminal or civil contempt is alleged; and this is to be determined by examination of the entire record” — citing cases. See Hughes v. Territory, supra; Meyers v. State, supra. CEelators devote a considerable portion of their briefs to an argument that some innuendo was required to show the contemptuous character of the publications, because they were not contemptuous per se. But it is alleged in the affidavit that each and all of said articles were published of and concerning the superior court of Gila county and the, judges thereof, and of and concerning the injunction cause and the parties thereto and their attorneys, and that such publications were calculated and intended by relators to hinder, obstruct, embarrass and prevent the due administration of justice in said cause. Under these allegations and the rule that the mean ing and intent of the publications are to be determined by a fair interpretation of the language used and its manifest purpose and effect (In re Fite, 11 Ga. App. 665, 76 S. E. 397), we think the articles from which we have quoted are to be considered contemptuous. That they were published for the purpose of interfering with the administration of justice in the cause then pending before the superior court of Gila county is very plain. Beyond the peradventure of a doubt the authors of these articles intended thereby to arouse public sentiment and influence the general opinion of the people of Miami and vicinity in favor of the case of the defendants then pending before the court, and to wrest from the judge a decision favorable to the defendants, whatever his views might be. To accomplish this object, the merits of the case, the selfish motives and purposes animating those who instituted and prosecuted it, the evil consequences of a decision unfavorable to the defendants, the alleged unprofessional and unethical character and conduct of the attorney for the plaintiff, the credibility of the witnesses for the plaintiff and of the plaintiff himself, the sufficiency of the evidence produced to substantiate certain allegations of the complaint, the impartiality and honesty of the judge who tried the case and that of his predecessor on the bench, were each and all commented upon in a- manner to persuade belief in the conclusion that the case for the plaintiff was without merit, and that the proceedings were an attempt under forms of law to take over, from those who should be legally entitled thereto, the power of government in the town of Miami. The language used in the case of People v. Wilson, supra, is apt: “A court will, of course, endeavor to remain wholly uninfluenced by publications like that under con sideration, but will the community believe that it is able to do so? Can it even be certain in regard to itself? Can men always be sure of their mental poise? A timid man might be influenced to yield, while a combative man would be driven in the opposite direction. "Whether the actual influence is on one side or the other, so far as it is felt at all, it becomes dangerous to the administration of justice. Even if a court is happily composed of judges of such firm and equal temper that they remain wholly uninfluenced in either direction, nevertheless a disturbing element has been thrown into the council chamber, which it is the wise policy of the law to exclude. Regard it in whatever light we may, we cannot but consider the article ... as calculated to embarrass the administration of justice, whether it has in fact done so or not, and, therefore, as falling directly within the definition of punishable contempts.” See State v. Tugwell, supra; State v. Kaiser, supra. Objection is made to the proceedings because the affidavit was not entitled, nor the proceedings had, in the name of the state of Arizona. The title is precisely in the form suggested in Hughes v. Territory, supra, for a similar proceeding. There is nothing to the point that the proceeding is a prosecution within the meaning of article 6, section 20, of the Constitution, which requires, inter alia, that “all prosecutions shall be conducted in the name of the State of Arizona and by its authority.” The prosecutions referred to in that section are of offenses required to be prosecuted by indictment or information. The legislature would seem to have thus construed it in various enactments. See, especially, section 751, Penal Code. We are convinced that no broader meaning should be given the language. Nor is there anything to the point that the affidavit is insufficient because the published articles were attached thereto merely as exhibits. This contention is rested upon the authority of the cases of McPherson v. Hattich, 10 Ariz. 104, 85 Pac. 731, and State v. Superior Court, 14 Ariz. 126, 125 Pac. 707, in which it is held that the absence from a complaint of an allegation necessary to the plaintiff’s cause of action cannot be supplied by a statement in an exhibit filed with and made a part of such complaint. The affidavit in this proceeding, however, is not lacking in the respect of any substantial averment. It contains the direct allegation that the publications in question had been actually made, and the only ground of criticism is that, instead of setting forth such publications in the body of the affidavit, they are attached thereto and made a part thereof as exhibits in haec verba. We see no possible objection to this method of setting forth the facts. It may be commended, indeed, for obvious reasons of convenience of reference and perusal. It is contended that Judge CEOSBY was deprived of jurisdiction by the filing of the affidavits charging him with bias and prejudice, in accordance with paragraph 500 of the Civil Code, as amended by chapter 107, Session Laws of 1921, and section 999 of the Penal Code. Paragraph 500 of the Civil Code provides: “If either party to a civil action brought in any superior court shall file an affidavit alleging either: . . . “ (4) That the affiant has cause to believe and does believe that on account of the bias or prejudice or interest of said judge he cannot obtain a fair and impartial trial. “It shall be the duty of said judge to at once request the judge of the superior court of some other county to hold the superior court in the county where such action is pending, and to preside at the trial of such action, and to hear all matters involved therein. ’ ’ The affidavits to disqualify were made- in conformity with the requirements of this paragraph, with the addition that, following the provisions of section 999 of the Penal Code, which reads: “A criminal action may be removed from the court in which it is pending, on the application of the defendant, on the ground that a fair and impartial trial cannot be had in the county where the action is pending, and if the defendant shall make affidavit, supported by the affidavits of three resident electors of the county that he cannot have a fair and impartial trial because of the bias and prejudice of the superior judge of the county wherein such cause is pending, the judge shall call in some other superior judge of the state to preside at such trial,” there were also filed the affidavits of three resident electors of the county that the relators could not have a fair and impartial trial because of the bias and prejudice of Judge CROSBY. The question therefore arises whether this proceeding in contempt is either a civil or criminal action within the meaning of these Code provisions, The idea that this proceeding is in any sense a civil action may be at once dismissed. It is no less certain that it is not a criminal action which is to be prosecuted by indictment or information as provided by our Constitution and Penal Code (Const., art. 2; Pen. Code, § 750). It is perhaps not unwarranted to say that virtually all the authorities which announce any express holding as to the nature of a proceeding to punish for criminal contempt go upon the assumption that such a proceeding is sui generis, being the exercise of the inherent power of courts to free themselves from influences calculated or tending to obstruct, embarrass or corrupt the administration of justice. Hence in the application of these general principles to the specific cases of applications to secure changes of venue, or to disqualify the presid ing judge, the rule is deduced that, unless the statute contain language broad enough in meaning to include a proceeding instituted to punish for contempt, the change of judge or venue cannot be made, and that the language “criminal action” or “civil action” is not to be interpreted as embracing a contempt proceeding. Lamonte v. Ward, 36 Wis. 558, cited by relators, arose under a statute which provided for the removal or change of venue of any cause or matter, and it was said that if the contempt proceeding was not a “cause” it was at least a “matter” within the meaning of the statute, and was therefore removable. State v. Superior Court, 77 Wash. 631, 138 Pac. 291, was a prosecution upon information for a constructive contempt. The statutory language being that a change of venue should be granted in “any action or proceeding,” it was held (citing Lamonte v. Ward, supra), that such prosecution was a “proceeding” within the contemplation of the statute. But under statutory provisions similar to our own we find no authority holding that the proceeding here is to be regarded as either a civil or a criminal action. In State v. Clancy, 30 Mont. 193, 76 Pac. 10, it was held under a statute which provided that the district judge should be disqualified to hear or determine any action or proceeding before him when either party made and filed an affidavit that he had reason to believe, and did believe, that he could not have a fair and impartial hearing or trial, by reason of the bias or prejudice of the judge, that a contempt proceeding is not a civil action, but is a proceeding sui generis, and the statute was therefore held inapplicable. In People v. Williams, 51 App. Div. 102, 64 N. Y. Supp. 457, the relator was charged with criminal contempt for disorderly conduct in the presence of the court at the trial. He was arrested upon a charge of criminal contempt, and, refusing to plead, filed an affidavit that the magistrate was a witness for him and asked for transfer of the case under a section of the Code of Civil Procedure. It was held that the proceeding was not a criminal action and was not instituted for the punishment of a crime, although criminal in its nature, and that the change of venue asked for could not be granted because the case could not be tried before another justice. State v. Newton, 62 Ind. 517, was attachment for contempt for refusal to appear in response to a subpoena. It was held that the proceeding was neither a civil action nor a state prosecution, and that the proceeding was sui generis and authorized by the statute, not for the punishment of crimes or misdemeanors, or the preservation of the peace, or the protection of the citizen from injury by violence as in a state prosecution, but that it was authorized as a shield and protection to the dignity and good order of the courts of justice, and to enable them to discharge without hindrance or unnecessary obstruction the public duties which they were required by law to perform. In Noble Tp. v. Aasen, 10 N. D. 264, 86 N. W. 742, it was held that the sections of the Code relied upon by the defendant had reference either to a civil or criminal action proper, and that the proceeding was neither the one nor the other. It was said: “If the proceeding is to be regarded as a means of punishing a criminal contempt of court, it must be classed as a summary proceeding of a gimai-criminal character, and hence not a criminal action.” In Re Brown, 168 N. C. 417, 84 S. E. 690, the court after referring to the principle that the power to punish for contempt is inherent in any court administering justice as a governmental function (citing 9 Cyc. 35, with approval) said that “ordinarily a change of venue is not allowed in proceedings of this character.” See, also, Bloom v. People, 23 Colo. 416, 48 Pac. 519. These authorities establish that a proceeding to punish for contempt is neither a criminal nor civil action within the meaning of these terms as used in statutes allowing changes of venue, or the disqualification of the presiding judge. The grounds of disqualification set forth in the affidavits, following the provisions of the Penal Code, state no facts from which it would appear that Judge CROSBY was actually biased or prejudiced against the relators, and must therefore necessarily be taken as a mere expression of opinion by the affiants that such bias or prejudice existed. In the language of Chief Justice RYAN, in Vogel v. Milwaukee, 47 Wis. 435, 2 N. W. 543, quoted with approval in Stephens v. Stephens, 17 Ariz. 306, 152 Pac. 164, such an affidavit does not call, for a change of venue or judge upon the fact of a judge’s prejudice, but merely upon the imputation of it. “It goes upon a statement of belief, not of fact, save in so far as belief may be a fact; upon assertion that the party has reason to believe and does believe that he cannot receive a fair trial on account of the judge’s prejudice, not upon averment of the prejudice itself.” (Citing cases.) In this view, unquestionably the correct one, there is added reason for holding that the liberal terms of our statutes should not be extended to include cases that are not embraced in the language used. We therefore hold that the judge’s refusal to recuse himself did not deprive the court of jurisdiction. The next contention challenges the jurisdiction of the court because of its refusal to accord relators a trial by jury, upon their demand therefor. The argument that such right exists is founded upon the pro visions of title 6, part 14, chapter 6, being paragraphs 1798 to 1804 of the Civil Code of 1913. This chapter was taken from the Clayton Act passed by Congress October 15, 1914 (chapter 323, 38 Stats. 738 to 740, being-sections 21 to 25 of said act [6 Fed. Stats. Ann., pp. 140-143; U. S. Comp. Stats., §§ 1245a-1245e]), which sections as modified to apply to onr local conditions were enacted as the chapter of onr laws referred to. Paragraph 1798 reads as follows: “Any person who shall willfully disobey any lawful writ, process, order, rule, decree, or command of any superior court of this state by doing any act or thing therein or thereby forbidden to be done by him, if the act or thing so done by him be of such character as to constitute also a criminal offense under any statute of this state, shall be proceeded against for his said contempt as hereinafter provided.” Paragraphs 1799 to 1802, inclusive, set forth the procedure to punish the contempts defined by paragraph 1798. Paragraphs 1800 and 1803, respectively, read as follows: “In all cases within the purview of this act such trial may be by the court, or upon demand of the accused, by a jury; in which latter event the court may empanel a jury from the jurors then in attendance, or the court or the judge thereof in chambers may cause a sufficient number of jurors to be selected and summoned, as provided by law, to attend at the time and place of trial, at which time a jury shall be selected and empaneled as upon a trial for misdemeanor; and such trial shall conform as near as may be, to the practice in criminal. cases, prosecuted by indictment or upon information.” “Nothing herein contained shall be construed to relate to contempts committed in the presence of the court, or so near thereto as to obstruct the -administration of justice, nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command, entered in any suit or action brought or prosecuted in the name of or on behalf of the state of Arizona, but the same and all other cases of contempt not specifically embraced within section 1 of this act (Par. 1798) may be punished in conformity to the usages now prevailing.” It will be seen that paragraph 1798, defining the contempts which are to be punished as provided in the chapter, includes therein only the disobedience of any lawful writ, process, order, rule, decree or command of any superior court of'this state, and requires in addition that the act or thing so done by the contemnor be of such character as to constitute also a criminal offense under some statute of this state. ■ One contention of relators is that because paragraph 1800 provides that “in all cases within the purview of this act” the accused shall upon demand be entitled to a jury trial, the paragraph is to be construed as conferring the right to such trial by the contemnors mentioned in paragraph 1803, that is to say, that the words quoted mean, in the language of counsel, “the whole extent” of the act. We see no merit whatever in this contention, nor in the correlated claim that because paragraph 1803 allows the contempts therein mentioned to be “punished” in conformity to the usages now prevailing the prosecution must be instituted or the trial thereof had— as distinguished from its punishment — in accordance with the provisions of the chapter. If paragraph 1803 had been omitted from the act it would follow, upon relators’ own theory, that these contentions could not be maintained. But the legislature went further and ex industria excluded from the purview of the act the contempts mentioned in paragraph 1803, by enacting the provisions of that paragraph. It is not to be supposed therefore that in the very process of doing so the intent was manifested to bring the excluded class within such purview. ( Paragraph 1803 is specific in its provisions that the contemptuous acts therein mentioned, “and all other cases of contempt not specifically embraced within section 1 of this act (par. 1798) may be punished in conformity to the usages now prevailing.” It is therefore unnecessary to determine whether the power to punish the contempts in hand is referable to the language “contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice,” which language italicized has been held to apply to newspaper publications calculated to embarrass, impede, or obstruct the administration of justice (see Toledo Newspaper Co. v. United States, 247 U. S. 402, 62 L. Ed. 1186, 38 Sup. Ct. Rep. 560; Id., 237 Fed. 986, 150 C. C. A. 636; Id. (D. C.), 220 Fed. 458; In re Independent Publishing Co., 240 Fed. 849, Ann. Cas. 1917C, 1084, L. R. A. 1917E, 703, 153 C. C. A. 535; Patterson v. Colorado, 205 U. S. 454, 10 Ann. Cas. 689, 51 L. Ed. 879, 27 Sup. Ct. Rep. 556 (see, also, Rose’s U. S. Notes); United States v. Providence Tribune Co. (D. C.), 241 Fed. 524; Myers v. State, 46 Ohio St. 473, 15 Am. St. Rep. 638, 22 N. E. 43; State v. Frew, 24 W. Va. 416, 49 Am. Rep. 257; Tate v. State, 132 Tenn. 131, 177 S. W. 69; People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528), or is to be referred to the power exercised by courts independently of any express statutory provision as essential to their own preservation as agencies of government. The following propositions are well established by authority: (1) That newspaper publications may amount to contempts of court, and particularly that publications pending a suit reflecting on the court, the jury, counsel, parties, or witnesses, or commenting on the case, and the weight and credibility of the testimony adduced or to be adduced therein, which articles are calculated to influence or embarrass the action of the tribunal before which the case is pending, in deciding the case on its merits, must be considered as contempts of that court because they obstruct the administration of justice therein; (2) that the power to punish for such contempts may be exercised summarily by attachment; (3) that such proceedings are to be prosecuted before the court in which the contempt was committed, and before that court alone; (4) that such contempts may be punished after a hearing before the court contemned without the intervention .of a jury. See the following authorities: In re Debs, 158 U. S. 564, 39 L. Ed. 1092, 15 Sup. Ct. Rep. 900 (see, also, Rose’s U. S. Notes); Hughes v. Territory, supra; State v. Sims, 17 Ariz. 410, 153 Pac. 451; Clark v. People, Breese, 340, 12 Am. Dec. 177; McDougall v. Sheridan, 23 Idaho, 191, 128 Pac. 954; State v. Newton, 62 Ind. 517; Fishback v. State, 131 Ind. 304, 30 N. E. 1088; People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528; In re Dingley, 182 Mich. 44, 148 N. W. 218; In re Chadwick, 109 Mich. 588, 67 N. W. 1071; Globe Newspaper Co. v. Commonwealth, 188 Mass. 449, 3 Ann. Cas. 761, 74 N. E. 682; Re Hart, 104 Minn. 88, 15 Ann. Cas. 197, 17 L. R. A. (N. S.) 585, 116 N. W. 212; State v. Shepherd, 177 Mo. 205, 99 Am. St. Rep. 624, 76 S. W. 79; Back v. State, 75 Neb. 603, 106 N. W. 787; People v. Williams, 51 App. Div. 102, 64 N. Y. Supp. 457; In re Deaton, 105 N. C. 59, 11 S. E. 244; In re Brown, 168 N. C. 417, 84 S. E. 690; Myers v. State, 46 Ohio St. 473, 15 Am. St. Rep. 638, 22 N. E. 43; Burke v. Territory, 2 Okl. 499, 37 Pac. 829; State v. Kaiser, 20 Or. 50, 8 L. R. A. 584, 23 Pac. 964; State v. Tugwell, 19 Wash. 238, 43 L. R. A. 717, 52 Pac. 1056; State v. Circuit Court, 97 Wis. 1, 65 Am. St. Rep. 90, 38 L. R. A. 554, 72 N. W. 193; Commonwealth v. Dandridge, 2 Va. Cas. 408; State v. Frew, 24 W. Va. 416, 49 Am. Rep. 257; Tate v. State, 132 Tenn. 131, 177 S. W. 69; 6 R. C. L. 509. The statutory language is that such contempts “may be punished in conformity to the usages now prevailing” (paragraph 1803); that is, the usages prevailing at the time of the adoption of the act in 1913. This phraseology refers ■ to such common-law usages as are consistent with and adapted to the necessities of our people, and which are not repugnant to nor inconsistent with the Constitution of the United States or the Constitution or laws of this state, or the established customs of the people thereof. Paragraph 5555, Civ. Code 1913. If we would ascertain our own laws and usages at the time of the adoption of the act in question, there being no authoritative precedent in this jurisdiction, we must necessarily investigate the then prevailing usages in states having the common law as the basis of their jurisprudence, from which we may deduce our own rules of decision. Such usages prevailed here in the sense that they were implicit in the common law itself. This principle is too familiar to need elaboration (see Lux v. Haggin, 69 Cal. 255, 4 Pac. 919, 10 Pac. 674, loc. cit. 750), and the subject is adverted to only because of the suggestion of counsel for relators that because the questions in this case concerning the right to a trial by jury have never been decided here since statehood that we should^ lay down a rule concerning constructive contempts “which will be in accordance with American Principles of justice, unhampered by any previous decisions.” "We hold that the court was within its jurisdiction in trying the contempts charged .without a jury. It is alleged in the petition for the writ that the superior court refused to accept from relators Scott and the Southern Arizona Publishing Company pleas of not guilty to the affidavit in contempt, and will refuse to accept a like plea from the relator Yan Dyke upon his appearance to show cause why he should not be punished for contempt, and compelled said relators, and will compel the relator Yan Dyke, to prepare and file answers under oath to the said accusations, and that therefore the court is without jurisdiction. The argument in support of this contention is for the most part based upon the assumption that the contempt proceeding is a criminal prosecution and governed by the provisions of the Penal Code relative to criminal offenses. That phase of the case has been sufficiently treated, and we shall not go over that ground again. So far as the relators may be accused by the affidavit of having committed a criminal offense, as to which we intimate no opinion, we have no doubt the court should not require a verified answer thereto. To the extent that the relators in making a full answer might be required to place of record admissions. or statements tending to incriminate themselves, they would be justified in refusing to abide by the order of the court requiring such an answer. The jurisdiction of the court to enforce obedience to any such order is not, however, before us in this proceeding, as the relators whose hearings have proceeded to answer have complied with the order made. If any relator should conceive that his rights would be best protected by standing upon a plea of not guilty and refusing to answer the accusation further, it could not be said that the court would lose jurisdiction, should it accept and proceed to a determination of the issues made under such a plea to the affidavit. If, on the other hand, having fear of punishment for supposed contumacy before him, any relator responds by filing a sworn answer, as was. done here by relators Scott and Southern Arizona Publishing Com pany, it is not apparent how obedience to the order of the court could deprive it of jurisdiction to act; nor that the order itself requiring such answer would be an unauthorized assumption of jurisdiction. The most that can be said is that such an order under certain circumstances might be erroneous. But as established by the cases already cited, supra, the writ of prohibition is not to be used ordinarily as a process for the review and correction of mere errors committed by an inferior tribunal. The next contention is that the court exceeded its jurisdiction in refusing to accept the sworn answers of the relators Scott and the Southern Arizona Publishing Company as conclusive so as to fully purge the contempt charged. "We think the court was not required so to do. The language of Justice HOLMES, speaking for the Supreme Court of the United States in the case of United States v. Shipp, 203 U. S. 563, 8 Ann. Cas. 265, 51 L. Ed. 319, 27 Sup. Ct. Rep. 165 (see, also, Rose’s U. S. Notes), in answer to a contention that the sworn answers were conclusive so far as they averred that no contempt was intended, and that the acts charged never took place, is pertinent in this regard: “It is urged that the sworn answers are conclusive, that if they are false the parties may be prosecuted for perjury, but that in this proceeding they are to be tried, if they so elect, simply by their oaths. It has been suggested that the court is a party and therefore leaves the fact to be decided by the defendant. But this is a mere afterthought to explain something not understood. The court is not a party. There is nothing that affects the judges in their own persons. Their concern is only that the law should be obeyed and enforced, and their interest is no other than that they represent in every case. On this occasion we shall not go into the history of the notion. It may be that it was an intrusion or perversion of the canon law, as is suggested by the propounding of interrogatories and the very phrase, purgation by oath (juramentum purgatorium). If so, it is a fragment of a system of proof which does not prevail in theory or as a whole, and the reason why it has not disappeared perhaps may be found in the rarity with which contempts occur. It may be that even now, if the sole question were the intent of an ambiguous act, the proposition would apply.” If as to any particular publication or part thereof which appears contemptuous, the intent of the act of publication shall be for any reason ambiguous and susceptible of innocent explanation, the determination of that fact, whether erroneously or correctly decided, is still within the jurisdiction of the court'. See, generally, Bloom v. People, 23 Colo. 416, 48 Pac. 519, to the effect that whether jurisdiction attaches in the first place in a contempt proceeding is to be determined from an examination of the affidavit or information, and that after it has so attached it is not divested by proof that no contempt was committed. On that question, however, it may not be improper to observe that whether the language is contemptuous is ordinarily ascertained by its manifest meaning and effect without regard to the intent with which it was used. So far as these articles are contemptuous in their necessary effect, and there is no ambiguity or obscurity of expression, it is difficult to perceive how one charged with their publication could justify his acts by avouching his innocent or respectful intent. The cases seem to rule that under such circumstances the absence of bad intent may possibly mitigate the punishment, but can never justify an unambiguous and unlawful utterance. See State v. Howell, 80 Conn. 668, 125 Am. St. Rep. 141, 13 Ann. Cas. 501, 69 Atl. 1057; In re Fite, 11 Ga. App. 665, 76 S. E. 397; Territory v. Nugent, 1 Mart. (O. S.) (La.) 103, 5 Am. Dec. 702; People v. Gilbert, 281 Ill. 619, 118 N. E 196; Territory v. Murray, 7 Mont. 251, 15 Pac. 145. We come next to the consideration of the question as to the sufficiency of the affidavit so far as it is founded upon the publications made subsequent to the denial of the motion for new trial. For all practical purposes, so far as this record shows, upon the denial of the motion for a new trial the case was no longer pending in the superior court of Gfila county. Many eminent courts have held under such circumstances that the criticism of a judicial officer, even though made with respect to a cause which has terminated, is a contempt which may be punished, and the reasons for such rule are very strongly set forth in these decisions, being especially the cases of State v. Morrill, 16 Ark. 384; Burdett v. Commonwealth, 103 Va. 838, 106 Am. St. Rep. 916, 68 L. R. A. 251, 48 S. E. 878; People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528; State v. Shepherd, 177 Mo. 205, 99 Am. St. Rep. 624, 76 S. W. 79; In re Chadwick, 109 Mich. 588, 67 N. W. 1071; Commonwealth v. Dandridge, 2 Va. Cas. 408. On the other hand, thé decided weight of authority is to the effect that defamatory comments on the past conduct of a judge, though libelous, do not constitute a contempt, even though they may well embarrass the court to some extent in other and pending litigations. See 6 R. C. L. 512. And see cases collected in notes to Burdett v. Commonwealth, supra, in 68 L. R. A. 251. In State v. Sweetland, 3 S. D. 503, 54 N. W. 415, it is said that the power to punish for contemptuous matter in a newspaper publication during the pendency of a cause— “is not to enable a judge, who deems himself aggrieved, to punish the supposed wrongdoer to gratify his own personal feelings, but to vindicate the dignity and independence of the court, and to protect himself, and those necessarily connected with it, while a matter is pending before it, from insolent and contemptuous abuse calculated to intimidate, influence, embarrass, or impede the court in the exercise of its judicial functions, or prevent a fair and impartial trial. If the judge was unjustly assailed by the article in question, he had the same, and only the same, remedies for the redress of the wrong which belong to all other citizens. After the conclusion of a trial the right of the press, without fear of punishment by contempt proceedings, in the interest of the public good, to challenge the conduct of the judge, parties, jurors or witnesses, and to arraign them at the bar of public opinion in connection with causes that have been fully determined, cannot be denied by a court in any other manner than by the ordinary proceedings in courts of justice. It would be a perversion of the salutary doctrines governing the proceedings of courts and its power to punish for contempts, to permit a judge to summon before him and punish by fine and imprisonment one who challenges his learning, integrity or impartiality as a judge in a public newspaper, except when the interests of the state demand it, to vindicate the independence and integrity of the courts, and to protect them from- publications directly calculated to embarrass, impede, intimidate or influence, them in the due administration of justice in proceedings pending before them.” This language meets with our approval, and we have no doubt expresses the proper rule under article 2, section 6, of our Constitution, which provides that— “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” On the record presented, we therefore hold that the publications made after the termination of the cause are not punishable as contempts of court. Finally, it is to be decided whether relators are given any adequate remedy or means of redress, besides the peremptory writ of prohibition prayed for herein, against the wrongs threatened to be done them in the imposition of punishment for the publication of the articles we have held to be noneontemptuous. Must they await the final action of the court in these proceedings, and be subjected to penalties which may extend to the imprisonment of relators Scott and Van Dyke before the law will take cognizance of the matter by some remedial process? Should this court defer action and refuse relief until after the wrongs have been done, the fine imposed, the imprisonment inflicted? We cannot be in doubt about the answer to these questions (see authorities, infra). A consideration of the nature and scope of the remedial writs left to the relators as alternatives to a denial of the writ of prohibition would seem to render imperative the conclusion that to remit the petitioners to the other remedies afforded by law would be tantamount ‘to a denial of justice, and that such remedies are inadequate, at least at this stage of the proceedings. The case of Hughes v. Territory, supra, was considered by the court upon its merits, with an express reservation of the question of whether appeal would lie from a judgment determining one to be guilty of a criminal contempt. In Ex parte Brown, 3 Ariz. 411, it was held that the Supreme Court had no jurisdiction to review the act of the district court adjudging one guilty of contempt. This decision recognizes the common-law rule that every court of record is the exclusive judge of contempts committed against its authority and dignity, and, as a corollary, that no appeal lies from a judgment in such proceedings, in the absence of constitutional or statutory authority conferring the right. 13 C. J. 97. Under statutes very similar to our own governing appeals, the Supreme Court of Minnesota, in the case of State v. District Court, 41 Minn. 42, 42 N. W. 598, has held that no appeal lies from an order adjudging one guilty of a criminal contempt, and that certiorari was an available remedy where the court had exceeded its jurisdiction. The language of paragraph 1227 of our Civil Code of 1913, on the subject of appeals, does not confer the right of appeal from a judgment in a case of criminal contempt. The right is not therein expressly given, and the term “special proceedings” cannot be held to include such proceedings. This conclusion is strengthened by the terms of paragraph 1802, which provides for appeals from judgments convicting for the contempts embraced in the provisions of the chapter of which it is a part, being the modification of the Clayton Act above discussed. Assuming, which we think is true, that either certiorari or habeas corpus would lie, it is apparent that the first-named writ, which ordinarily issues only when a court has consummated its action or judgment, is not at that time an adequate and efficacious remedy, and it is likewise apparent that any application for a writ of habeas' corpus which does not show actual imprisonment must necessarily be denied. It is true that under the provisions of paragraph 1498 of our Civil Code the court which issues a writ of certiorari may require the inferior tribunal to desist from further proceedings; and it may be that certiorari would have been a proper remedy in this case at the time the alternative writ was applied for. Upon this question it is unnecessary to express any opinion. For, looking to the rights to be protected, we see no reason why we should be acute to find in the statutory terms conferring the right to certiorari an adequate remedy which will bar the peremptory writ of prohibition, the alternative writ having issued, nor why we should discharge the writ now operative with the necessary effect of remitting the relators to another proceeding which, so far as the present record shows, must end in the same result. Even on the assumption that we might have refused the alternative writ of prohibition because of the existence of another available remedy by certiorari, it is now obwous that the stay of proceedings provided for by the statute governing the issuance of certiorari, so far as effective, would be so as the equivalent of the remedies given at the time of the issuance herein of the alternative writ of prohibition. We will not do justice in this matter by halves, nor decide the difference which exists here between tweedledum and tweedledee. As to the inadequacy of the ordinary remedies by appeal, certiorari, and habeas corpus, see, generally, the following authorities: State v. Circuit Court, 97 Wis. 1, 65 Am. St. Rep. 90, 38 L. R. A. 554, 72 N. W. 193; People v. Carrington, 5 Utah, 531, 17 Pac. 735; State v. District Court, 50 Mont. 289, Ann. Cas. 1917C, 164, 146 Pac. 743; State v. Superior Court, 67 Wash. 370, 121 Pac. 836. Compare Arfsten v. Superior Court, 20 Cal. App. 269, 128 Pac. 949; Ex parte Hayter, 16 Cal. App. 211, 116 Pac. 370; Terrill v. Superior Court, 127 Cal. xviii, 60 Pac. 38; Ruggles v. Superior Court, 103 Cal. 125, 37 Pac. 211; Gordon v. District Court, 36 Nev. 1, 44 L. R. A. (N. S.) 1078, 131 Pac. 134; State v. Fort, 107 Mo. App. 328, 81 S. W. 476, loc. cit. 479. We conclude that the writ of prohibition should be made peremptory against any further action by the court below, or the judge thereof, based upon the publications which we have held to be noncontemptuous, being specifically Exhibits “B,” “C,” ££E, ” and ££F,” attached to the affidavit of George M. Elledge, and that the writ should be quashed so far as it concerns proceedings to be had based upon the publications attached to said affidavit, being specifically Exhibits “A” and “D.” BOSS, O. J., and McALISTER, J., concur.

LYMAN, J. In a joint information, this appellant with one other was charged with an attempt to cheat and defraud by means of a trick or device known as a confidence game, a felony. Both were convicted in separate trials. Appellant bases his appeal upon five assignments of error, the discussion of which can be more logically developed by taking up first the fifth assignment, which is as follows: “The court erred in overruling the objection to the following questions: ‘Q. Now I want to go into the matter, Chief Brisbois, as to whether at that time such charge had been made upon a reasonable cause? And to that end, I will ask you to tell what had been reported to you, and from what source, and to what extent you had been following the matter up?’ “Mr. Struckmeyer: ‘If the court pleases, that certainly is objectionable. It calls for hearsay of the worst kind; in fact the very question is but requesting him to relate hearsay evidence.’ “The Court: ‘As I view the matter, Mr. Struckmeyer, that goes to the very essence of the proposition. The objection is overruled; it may be answered.’ ” Upon the trial of appellant, his counsel, by cross-examination of witness Brisbois, chief of police of the city of Phoenix, under whose direction appellant was arrested, disclosed that the arrest was made and certain articles taken from appellant’s room without warrant of arrest or search-warrant. This cross-examination was followed by a question asked by the county attorney of witness Brisbois, objected to by appellant’s counsel, and the overruling of that objection forms the basis of this assignment. The witness by this question is asked to disclose upon what authority the arrest was made, and the articles sought to be introduced in evidence were taken possession of. The statutes of Arizona provide that an officer may without warrant make an arrest “on a charge made upon a reasonable cause of the commission of a felony by the party arrested,” or “when a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.” An issue having been raised as to the authority for the arrest and seizure of appellant’s property, the county attorney sought to discover upon what authority the officer had proceeded in the premises. Objection to this question is based solely upon the gronnd that it calls for a hearsay statement. The information upon which a peace officer is authorized to act without a warrant may be acquired either by personal observation or by statements made to him by others. Neither by statute nor by common law was the officer required to act only upon his own observation. In fact, the very terms of the statute, “on a charge made,” indicates that the officer is authorized and required to act upon information furnished him by others. The question is not whether the charge made or the information conveyed to the officer was true, but whether or not any charge was made or any information conveyed to the officer, and, if so, what that charge was, and what that information consisted of. The thing to be proved was the information or the charge, and what that information or what that charge was. The best possible evidence concerning that was the testimony of the officer as to what he had heard and seen, whether what he had heard consisted of spoken words or of anything else. The ultimate test as to whether or not a statement is hearsay is whether the witness may he cross-examined concerning the fact about which he testifies. The question here was whether the officer had heard, and what he had heard. As to both those things, he was subject to cross-examination. He could not be cross-examined as to the truth of the information received; but that was not the fact to be proved. The basis of the officer’s authority was not the truth of the charge, but the fact that the charge was made. It is not that the person sought to be arrested has committed the felony that is under consideration; but that the officer had reasonable cause for believing him to be the person who committed it. Paragraph 854, Pen. Code Ariz.; People v. Wilson, 117 Cal. 688, 49 Pac. 1054; Lees v. Colgan, 120 Cal. 262, 40 L. R. A. 355, 52 Pac. 502. Appellant’s first assignment of error is not urged. Assignments 2 - and 3, presenting to some extent the same questions of law, are discussed together in appellant’s brief, and will be so treated here. These assignments are as follows: “Assignment 2. The court erred in denying the petition for restitution of property. “Assignment 3. The court erred in overruling the objection of the appellant made during the course of the trial, as follows: “Mr. Struckmeyer: ‘Now, if the court pleases, I desire to object to the witness testifying not merely to the introduction of the exhibits in evidence and its use, but I desire to object to the witness testifying of and concerning anything seized without the necessary predicate therefore being laid, namely, the obtaining of a. search and seizure warrant, or the witness testifying to any knowledge concerning the things seized without a search and seizure warrant, and knowledge gained by him in the unlawful act, and this, if the court pleases, I contend is one of the things he is now interrogated about, now questioned about, knowledge gained by him in the-unlawful act.’ “The Court: ‘The court overrules the objection’— and erred in receiving in evidence the various exhibits in this case so obtained, and receiving in evidence testimony, the knowledge whereof was gained by unlawful search and seizure.” The record discloses that the police officers of the city of Phoenix who made the arrest of appellant in this case had information that an attempt had been made by appellant to cheat and defraud by the use of a small black box, which he used and exhibited as a means of effecting the crime, a felony. Acting upon this information, the police officers went to the lodgings of appellant, knocked at the outer door, and were admitted by appellant’s codefendant, who was immediately placed under arrest. The adjoining room, communicating with this by double doors, and occupied by appellant, was next entered by the officers after knocking and getting no response. Appellant was not found in the room, but shortly after, and during the same visit, he was arrested within the same building, brought into the room, and, along with the black box, which was there found, and some other articles used in connection with it, taken into the custody of the police. The box was found inclosed in a suitcase. Other articles were taken from various pieces of furniture. Before the trial, appellant applied to the court for the restoration to him of the black box and the other articles taken under the circumstances just recited, upon the ground that the property had been taken from appellant without search-warrant or other authority. This application was denied, and the denial forms the basis of the second assignment of error. Upon the trial the black box and the other articles used with it were offered in evidence, together with testimony concerning the place and circumstances of their discovery at the time of the arrest. All this evidence was objected to upon the ground that the articles offered in evidence were the property of appellant, and had been taken from him without search-warrant, or in other lawful manner, and the objection overruled. This ruling is assigned as error numbered 3. Two questions are suggested by these assignments, considering them together: Did these articles come into the possession of the officers and under the control of the court by unlawful or irregular means, and were they inadmissible in evidence because of being improperly procured or for any other reason? The arrest was made by police officers of the city of Phoenix, who under the laws of this state are peace officers. Paragraph 841, Pen. Code Ariz. Peace officers are authorized to make arrests without warrant on a charge made upon reasonable cause of the commission of a felony by the party arrested, or when a felony has in fact been committed and the officers have reasonable cause for believing the person arrested to have committed it. Paragraph 862, Pen. Code Ariz.; Wiley v. State, 19 Ariz. 346, L. R. A. 1918D, 373, 170 Pac. 869; Miles v. Wright, 22 Ariz. 73, 12 A. L. R. 970, 194 Pac. 88. It appears from the record that such information had been received by the officers as authorized them to make the arrest. The authority to make the arrest without a warrant necessarily included the authority to do any other thing, in connection with the arrest, which a warrant would have given. The statutes in setting forth the bases of authority upon which an officer may make an arrest makes no distinction in the scope and extent of the authority conveyed, or the manner in which the arrest is to be effected. If the officer is authorized to arrest at all lie is authorized to perforin that duty in the same manner and with like incidents by whatever form that duty is imposed. "Whatever the officer is authorized to do by virtue of a warrant of arrest he is authorized to do on a charge made upon a reasonable cause of the commission of a felony by the party arrested. 1 Bishop’s Criminal Procedure, 196. This brings us to a consideration of the authority and duty of a peace officer under the circumstances disclosed by this record. Undoubtedly his first duty is to seek out the person to be arrested wherever he may find him within his jurisdiction, whether within or without of doors, and to exercise the authority which the law has given him, and in the manner which it is given him to break down any barriers which are interposed between the officer and the person to be arrested. Paragraph 862, Pen. Code Ariz. There seems to be no explicit question raised by appellant, as to the right of the officer to make the arrest, but it seems to be his contention that he was not authorized to do anything else, or to go any further, nor while making the arrest to search for or seize any property, whatever its nature, without such authority as may be conveyed alone by search-warrant. We know of no rule or statute which so defines the duties of a peace officer in effecting an arrest upon valid authority. The authority of an officer to make an arrest carries with it as an incident of that authority to be exercised in connection therewith, the duty to search the person arrested, and the place where he was found, for the purpose of discovering evidence of the crime for which he was arrested, and, if such evidence is found, to take it into possession. Justice GAYNOR, of the New York Supreme Court, has this to say on the subject: “The police have the power, and it is also their duty, to search the person of one lawfully arrested, and also the room or place in which he is arrested, and also any other place to which they can get lawful access, for articles that may be used in evidence to prove the charge on which he is arrested. We have no statute defining this power or prescribing this duty, but the ends of justice require that they should exist, and they have been exercised under the common law from time immemorial. The authorities on this head seem to be few, but only because the thing has seldom if ever been questioned.” Smith v. Jerome, 47 Misc. Rep. 22, 93 N. Y. Supp. 202. In a more recent case in the same court it is said: “It has always been permissible for police officers, in performance of their official function, to follow criminals into their hiding places, and to search the latter for evidence to support conviction. As to whether such search and seizure are unreasonable, or should be under warrant, depends upon the circumstances. The purpose must be to aid the administration of justice. ... It has never been required to procure search-warrants in all cases of entering upon and searching private dwellings or premises. Search-warrants had their origin in cases where the circumstances failed to afford legal justification for summary entry, or where no crime had as yet been committed, or where the paper or property to be seized was in the premises, or possession, of a third party, and in the latter case it was essential that the paper or property be required for the purposes of detecting or punishing crime.” People v. Milone, (Co. Ct.), 195 N. Y. Supp. 488. The opinion above quoted of Justice GAYNOR is commented upon and approved of in United States v. Wilson (C. C.), 163 Fed. 343, and in many other cases since decided. The circumstances under consideration here showed authority to make the arrest; access to appel lant’s lodgings lawfully obtained, the arrest of appellant in the same building, and in a room used by him in connection with his lodgings, and coincident with the arrest the search of his lodging-room by the officers making the arrest to the extent of opening and taking from a suitcase the black box which had been described to the officers as the means by which the offense in question had been committed, and the opening and taking from drawers or other articles of furniture within the same room of other things used in connection with the same incriminating’ box. It appears from the record that all of these articles were made, designed, and used for the sole purpose of committing a crime; that they had, and could have, no legitimate use or purpose. They belonged to the same category as burglar’s tools, and lottery tickets in jurisdictions where lotteries are unlawful, and other forms of contraband goods to which the rights of private property do not belong. No case has been cited, and we doubt if any court has ever decided that an officer, lawfully effecting an arrest, and lawfully within the domicile of the person arrested, may not, as an incident thereto, within the limitations observed in this instance, seek for and seize the instruments and means by which the crime charged was committed. Appellant seems to assume that his goods were taken possession of by the officers unlawfully, and upon that premise bases a conclusion that they should have been returned to him, and not received in evidence, supporting this conclusion by reference to sections 8 and 10 of article 2 of the Constitution of the state of Arizona, which are as follows: “Sec. 8. No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” “See. 10. No person shall be compelled in any criminal case to give evidence against bimself. . . As already suggested, it appears from the record that whatever disturbance there was of appellant’s private affairs, or whatever invasion there was shown to have been of his home, was done in pursuance of authority directing and empowering the arrest of appellant upon a charge of having committed a felony, and,.far from being without authority of law, was done under the express commands of the law. The provision contained in section 10 that “no person shall be compelled in any criminal case to give evidence against himself” does not extend to exempt a person charged with crime from having used in evidence the instruments and means by which that crime was committed. Reference is also made to amendments 4 and 5 of the Constitution of the United States, and the application of those provisions made by the United States Supreme Court. The admissibility of this testimony must, 'of course, be determined by the laws and Constitution of this state, rather than by the provisions of the federal Constitution; but, for the purpose of treating the decisions of the federal courts as applicable to the questions involved here, it may be assumed that amendments 4 and 5 of the United States Constitution are substantially like the provisions of the state Constitution bearing on the same subjects. The case of Boyd v. United States, 116 U. S. 616, 29 L. Ed. 746, 6 Sup. Ct. Rep. 524 (see, also, Rose’s U. S. Notes), upon which appellant seems to rely, had to do with the constitutionality of an act providing for the forcible taking by search-warrant or by subpoena of private papers, for the purpose of effecting a forfeiture of goods, and the court found that such a law was unconstitutional, and that no search-warrant or other process could be lawfully issued for such a purpose. The conclusions arrived at by the court in that case could throw no possible light upon the widely different conditions involved in this one. It is worthy of note, however, that there is expressly excepted from the effect of the conclusions reached in that case conditions such as we have to deal with here, and the court says: “The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man’s private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo. In the one case, the government is entitled to the possession of the property; in the other it is not. The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government. ... So, also, the laws which provide for the search and seizure of articles and things which it is unlawful for a person to have in his possession for the purpose of issue or disposition, such as counterfeit coin, lottery tickets, implements of gambling, etc., are not within this category.” The case of Adams v. New York, 192 U. S. 585, 48 L. Ed. 575, 24 Sup. Ct. Rep. 372, relates to facts more nearly parallel to the conditions we are considering here. The question there arose as to the right of the state to introduce certain evidence which it was claimed had been unlawfully obtained. Concerning this the court says: “In such cases the weight of authority as well as reason limits the inquiry to the competency of the proffered testimony, and the courts do not stop to inquire as to the means by which the evidence was obtained. The rule is thus laid down in Greenleaf, Yol. 1, § 254a: ‘It may be mentioned in this place that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.’ ” That the Supreme Court of the United States has never departed from that opinion appears from a recent case, Burdeau v. McDowell, 256 U. S. 465, 13 A. L. R. 1159, 65 L. Ed. 1048, 41 Sup. Ct. Rep. 574 (see, also, Rose’s U. S. Notes, Supp.), which is the most recent decision reported upon this subject. Certain papers belonging to McDowell had been surreptitiously taken from his office, and afterwards came into the possession of Burdeau, Special Assistant of the Attorney General of the United States. He held the same for the purpose of using them in connection with a criminal prosecution then pending against McDowell, and recovery of the papers was sought upon the ground that the presentation to the grand jury of these books or papers, or any secondary or other evidence secured through or by them, would work a deprivation of petitioner’s constitutional rights secured to him by the fourth and fifth amendments to the Constitution of the United States. The court refused to surrender the papers, and as authority for such ruling cites the case above referred to of Adams v. New York. Appellant cites the case of Gouled v. United States, 255 U. S. 298, 65 L. Ed. 647, 41 Sup. Ct. Rep. 261. An examination of the facts of that case will disclose how unrelated that authority is to any question involved here. The evidence offered by the state in that case was rejected upon the ground that officers of the United States, with no charge pending against Gouled, and engaged merely in a fishing expedition, had invaded the office of Gouled without any pretended authority whatever, had rummaged among his private papers and had carried away the articles sought to be introduced in evidence. This act of the federal representatives the court refused to condone. The right of a peace officer to take the instrument by which the crime charged had been committed from the possession or from the control of the person arrested, as an incident to that arrest, was in no way involved in that case. If we look to the state courts for authority upon this question, it will be found that they have generally disregarded the means by which property was obtained in considering its admissibility in evidence. State v. Madison, 23 S. D. 584, 122 N. W. 647. ■ Appellant’s fourth assignment of error is based upon the order of the court denying a motion for a new trial because of the disqualification of one of the jurors,. T. A. Province. The disqualification of this juror is stated to have been his service upon the jury which tried the codefendant of appellant, and such service is made to appear in the record by an affidavit made by one of the counsel for appellant upon his trial. The affidavit states categorically that the juror Province served upon both juries, and that, when examined upon his voir dire in this case, he stated that he had not served as a juror upon the trial of the codefendant. No challenge was interposed by appellant to the service of this juror, and no cause shown why it was not done. A sufficient answer to this assignment is that counsel were precluded from further objection by accepting the juror without challenge. The same counsel examined both juries. The same files and records upon which the codefendant was tried lay before counsel when this appellant was upon trial. If the juror Province served upon the former jury, that fact appeared from the record, and a challenge for cause should have been made upon that showing, and would, of course, have been sustained.. No excuse is offered for not making it. Counsel for appellant, having- full knowledge of all the facts, and -having failed to ask the trial court to apply the remedy which the statute gives, this court is without power to afford relief. Paragraph 1026, Pen. Code Ariz.; Queenan v. Territory of Oklahoma, 190 U. S. 548, 47 L. Ed. 1175, 23 Sup. Ct. Rep. 762 (see, also, Rose’s U. S. Notes). There will not be found in this opinion any general warrant for peace officers to make unauthorized incursions upon private premises, nor can it be construed as an invitation to lightly disregard those provisions of Constitution and statute by which personal liberty and private property are secured from unwarranted intrusion. The conclusions reached here apply only to such facts as this case discloses, and any generalizations are to be restricted to the facts under consideration, and to eases of like sort. The judgment of the court is affirmed. ROSS, J.) concurs. McALISTER, C. J., being disqualified, took no part in the decision of this case.

LYMAN, J. The plaintiff, Jesus Ybanez, recovered judgment against S. Leeker and S. Leeker Dry Goods Company, appellants, in an action of malicious prosecution. From that judgment an appeal is prosecuted upon three assignments of error, all relating to the instructions to the jury. The first instruction complained of reads as follows: “The malice necessary to sustain an action for malicious prosecution is not express malice — -a specific desire to vex or injure another from malevolence or motives of ill will — but the willful doing of an unlawful act to the prejudice or injury of another. So, if you find from the evidence under the instructions which I shall give you with reference to probable cause that the defendants did not have probable cause for the arrest and prosecution of the plaintiff, then I instruct you that malice need not be expressly proven, bnt may be inferred from lack of probable cause.” Before considering this portion of the instructions, it should be noted that preceding it the court had clearly and correctly outlined the issues involved in the action, and the basis upon which the plaintiff was entitled to recover, if at all, by stating the. various elements which enter into an action for malicious prosecution. The jury was also told of the interest of the public in the prosecution of crime. This particular instruction directs the attention of the jury to the subject of malice, of what it is constituted, and how it may be made to appear by the evidence. The first clause, “The malice necessary to sustain an action for malicious prosecution is not express malice, a specific desire to vex or injure another from malevolence or motives of ill will,” is a statement of what malice is not, and a direction to the jury as to what they are not to look for in the evidence in determining whether or not plaintiff was actuated by malice. If this clause is taken merely as a generalization, it is not correct, because more often than otherwise malice which is involved in an action of malicious prosecution is essentially what is here said it is not. The remainder of this sentence reads as follows: “But the willful doing of an unlawful act to the prejudice or injury of another.” This is a positive statement to the jury of what it is to understand by the term “malice.” As a general statement this is not altogether wrong, and seems to follow in the main the definition given by Greenleaf, but leaving out some words which make the Greenleaf definition clearer and easier to understand. No explanation is added as to the character or the nature of such an unlawful act as is referred to in this clause, unless it is to be found in the following sentence, which reads as follows: “So, if you find from the evidence-under the instructions which I shall give you with reference to probable cause that the defendants did not have probable cause for the arrest and prosecution of the plaintiff, then I instruct you that malice need not be expressly proven but may be inferred from lack of probable cause. ’ ’ This sentence begins with the word “so,” apparently used in the sense of “therefore” to introduce a conclusion from. the preceding sentence containing a statement of what malice is and also as to what it is not. The close and logical connection between the term “unlawful act” and the term “probable cause” inevitably would leave the inference that the lack of probable cause was the unlawful act which constituted the malice referred to in these instructions. As a generalization or with particular reference to the facts of this case, it fails to give to the jury a full and fair statement of the law relating to malice as applied to actions of this character. Malice is primarily a state of mind and heart, variously prompted and variously manifested, and therefore variously defined in the books. That malice which is a factor in an action of malicious prosecution arising from criminal cases is manifested by furthering some charge of crime from base and improper motives; that is, from some motive other than a desire to have the laws enforced, crime suppressed, and the guilty brought to justice. Such improper motive may spring from personal hatred and ill will toward the person charged with crime, the pursuit of some selfish advantage, or from any desire or impulse other than the one legitimate purpose — the enforcement of the law. Besides the objections already noted to this instruction, the last clause of it, even if standing alone, is a form of statement condemned as an instruction to the jury in an action of this sort in the case of Griswold v. Horne, 19 Ariz. 56, L. R. A. 1918A, 862, 165 Pac. 318, where the law relating to malicious prosecution is treated at considerable length by Chief Justice FRANKLIN, with many citations and elaborate reasoning. It is there explained that, though this particular clause may be construesd as a correct statement of the law, it is nevertheless in such a form as to make it an improper guide to a jury in an instruction without further elaboration or explanation. In the ease of Hanowitz v. Great Northern R. Co., 122 Minn. 241, 142 N. W. 196, the necessity of keeping before the jury the distinction between malice and want of probable cause is stated in the following terms: “It is well established that in the action of malicious prosecution both malice and want of probable cause must be proven by the plaintiff as distinct issues. The malice which is the essential element of malicious prosecution is not, like the malice essential in libel, slander, and false imprisonment, a mere fiction of the law; it is a state of mind to be proved as a fact. Want of probable cause may exist without malice. The reason is plain. The information on which a defendant acted may have induced him to act in the utmost good faith, so that his mind is entirely free from malice, and yet it may not be sufficient to constitute probable cause, for the test of probable cause is not the belief induced in him, but the belief induced in the mind of a reasonably prudent man. The jury may, in a proper case, infer malice from want of probable cause, but they are not bound to infer malice in every case where want of probable cause is proven. The inference which they may draw is one of fact, and not of law. ’ ’ In the instruction which we are now considering malice and probable cause are so associated and woven together in apparent dependence one upon the other that the jury could hardly have failed to suppose that, having found that there was want of probable cause for the prosecution, malice was from that fact alone to be imputed to the defendants. The second assignment of error relates to an instruction, which is as follows: “The court instructs the jury that there are two kinds of damages, which they may award the plaintiff in this action, namely, actual or compensatory damages and exemplary or punitive damages. . “Actual or compensatory damages include loss of time, peril of life or liberty, injury to reputation, character of health, mental suffering, general impairment of social standing, and expenses, including attorney’s fees incurred or paid by the plaintiff about the original criminal proceeding, if reasonable and necessary, so far as they are shown to have been an actual and proximate consequence of the act complained of. “Exemplary or punitive damages are those given in addition to compensation for a loss sustained, in order to punish or make an example of the wrongdoer. Exemplary damages are such damages as are in excess of the actual loss and are allowed where a tort is aggravated by evil motive, actual malice, or oppression. ’ ’ There seems to be nothing in the record indicating that the plaintiff is entitled to recover anything from peril of life or injury to health. To that extent at least the instruction is bad. Assignment of error No. 3 is based upon an instruction as to probable cause, reading as follows: “The court instructs you that the mere fact that the overcoat being worn by plaintiff, at the time of his arrest, resembled overcoats carried in stock in the El Paso store, owned by the defendant S. Leeker Dry Goods Company, did not of itself justify the defendant Sam Leeker in causing the arrest and prosecution of plaintiff for the larceny of said overcoat, even though said Sam Leeker suspected or even believed said overcoat to have been stolen from said El Paso store, unless such suspicion or belief was based on other facts than such resemblance alone. And if the plaintiff, prior to his arrest, informed said defendant Sam Leeker that he had purchased the said overcoat some days previously in the La Reforma store, two doors from said El Paso store and on the same side of the street, and if the said Sam Leeker or his codefendant failed to investigate the truth or falsity of this information and caused the arrest and prosecution of plaintiff without any such investigation, and solely because of the resemblance which plaintiff’s overcoat bore to overcoats carried in stock in said El Paso store, no proof having been offered of the theft of an overcoat from the said El Paso store, then I instruct you that no probable cause existed for the arrest and prosecution of plaintiff for the larceny of said overcoat. But such resemblance may be considered by yon, if you find from the evidence that in addition to said resemblance the defendant had been informed by one of the clerks of the El Paso store that plaintiff was ‘getting away with an overcoat,’ and that plaintiff had offered to pay the defendant Sam Leeker for said overcoat in consideration of his not being arrested and prosecuted for the larceny thereof, and that the truth or falsity of such statement of plaintiff that he had purchased the said overcoat in said La Reforma store could not with reasonable effort have been ascertained by the defendants.” The court, having found a conflict in the evidence as to probable cause for the prosecution, undertook very properly to instruct the jury by means of a hypothetical statement of the evidence bearing upon that question how it might arrive at a conclusion as to 'whether or not there was probable cause for the prosecution; but in doing so in this instruction por tions of the evidence are emphasized, and the effect and weight of such evidence is given. That should not have been done. The question as to whether there was lack of probable cause shown should have been left fully to the jury, unless the court found the evidence relating to it undisputed. The case is reversed and a new trial directed. ROSS, J., concurs. MoALISTER, O. J., being disqualified, took no part in the decision of this case.

ROSS, C. J. In a suit by plaintiff, Doran, against tbe Oasis Printing House, Inc., a writ of attachment was sued out and personal property, consisting of a Sunday issue of the defendant’s newspaper, levied upon. The defendant replevied the property so levied upon, executing a "bond therefor with the appellees J. A. Harrison and "V". J. "Wager, as sureties. The amount sued for was $524.51, interest and attorney’s fees. Judgment was rendered in favor of plaintiff against the defendant Oasis Printing House, Inc., for the sum of $629.13 and against the sureties in the sum of $40, the agreed value of the property attached. The plaintiff has appealed from the judgment in his favor against the sureties, contending it should have been for the full amount of the judgment against the defendant. The controversy grows out of the wording of the replevy bond, the condition of which is as follows: “Now, therefore, we, the undersigned the Oasis Printing House, Inc., a corporation, as principal, and Y. J. Wager and J. A. Harrison, as sureties, acknowledge ourselves bound to pay to the above-named plaintiff the sum of one thousand and fifty-nine and 02/100 dollars ($1,059.02) being double the amount of plaintiff’s debt, conditioned that, on the release from said attachment of said property, if the plaintiff recover judgment in the aforesaid action, the defendant will satisfy any judgment which may be therein rendered against it, or will pay the estimated value of the said property released, with lawful interest thereon from the date of this bond.” The bond is a printed form for filling in descriptive matter such as title of case and court, amount, and also for the insertion of the obligors’ election as to whether they will agree to satisfy any judgment plaintiff may recover against defendant or pay the estimated value of the released property. Paragraph 1412, Civil Code of 1913, which authorizes the attaching officer to release the attached property, provides that the bond shall be— “conditioned that should the defendant be condemned in the action he shall satisfy the judgment which may be rendered therein, or shall pay the estimated value of the property, with lawful interest thereon, from date of the bond.” When the defendant replevies personal property in the above manner, paragraph 1424, Id., provides that— “The judgment shall also be against the defendant and his sureties on his replevy bond for the amount of the judgment, interest and costs, or for the value of the property replevied and interest according to the terms of such replevy bond.” When the two paragraphs of the statute referred to are construed together, it is obvious that the replevy bond therein provided for should run to the plaintiff in double the amount of his debt, and be conditioned to satisfy any judgment that he might recover against the defendant, or it should run to the plaintiff in the estimated value of the property attached, with lawful interest thereon from the date of the bond, conditioned to pay the value of the property replevied and interest in the event the defendant be condemned in the suit. In either ease the judgment could easily have been rendered according to the terms of the bond. While the bond we here have runs to plaintiff in double the amount of his debt, it is conditioned in the alternative. It is the contention of the plaintiff that the last condition should be disregarded and the bond construed as though it contained but the one condition of satisfying the judgment against the defendant, solely upon the ground that the obligors had inserted in the bond double the amount of plaintiff’s debt, and not the estimated value of the replevied property. By adopting this view we would have a bond conforming with the statute, a good statutory bond entitling the plaintiff to recover the full amount of the judgment against the sureties. If, before the bond was executed and delivered to the sheriff and the property released, the condition thereof, with reference to the estimated value, had been canceled or erased, no doubt could exist as to the intention of the makers thereof. This was not done. The alternative conditions were permitted to remain as a part of the.bond. And what the parties did not do in that regard we think the court should hesitate to do, and thereby possibly import into the contract a meaning not intended. Literally this bond binds the obligors in the alternative. They agree to do one or the other of two things. They first agree to satisfy any judgment obtained against the defendant or to become bail for the debt, or, second, to pay the estimated value of the property, in which case the bond becomes a new or substituted security to the plaintiff. In both cases the result was the same — a dissolution of the attachment. Shinn on Attachment and Garnishment, § 304. The intention of the obligors in the bond, if it can be ascertained therefrom, should be the measure of their liability. “In arriving at this intention the terms used in the bond should be construed according to the ordinary and reasonable meaning of the language employed.” 9 C. J. 33, § 52. It is a cardinal rule in the construction of contracts to give meaning to all the words and clauses used by the parties. If that rule be applied to the language in this bond it is obvious that the sureties thereon bind themselves in the alternative. In such case the law seems to be settled that the obligors have a right to elect which one of the alternative conditions of the bond they will perform. 9 C. J. 68, §113; 6 C. J. 345, § 717; People v. Tilton, 13 Wend. (N. Y.) 597. In the case of Moorman v. Collier, 32 Iowa, 138, relied upon by plaintiff, the surety had bound himself “to perform the judgment,” whereas he thought, when signing the bond, as he attempted to show, that it was a forthcoming bond. The court held that, the obligor having executed a bond to perform the judgment, he would not be permitted to show that he intended to sign, or thought he was signing, a forthcoming bond, and in that connection quoted from 2 Parsons on Contracts, fifth edition, 494-496, as follows: “The words must not be forced away from their proper signification to one entirely different, although it might be obvious that the words used, either through ignorance or inadvertence, expressed a very different meaning from that intended. . . . For if the words employed were those intended to be used, but their actual meaning was totally different from that which the party supposed and intended them to bear, still this actual meaning would generally, if not always, be held to be their legal meaning.” In Phansteihl v. Vanderhoof, 22 Mich. 296, cited by plaintiff, the bond was “conditioned for payment of any judgment which might be recovered” by the plaintiff in attachment suit. The obligors’ contention that this condition in the bond would be satisfied by his paying the amount of the value of the property attached was held to be untenable, and very correctly so. The syllabus in Bond v. Greenwald, 4 Heisk. (Tenn.) 453, seems to uphold the contention of the . plaintiff. However, the court does not quote the statute under which the replevy bond was given, nor is a copy of the bond set out in the opinion. In the body of the opinion it is said: “The court is of opinion that when the defendants . . . replevied the goods attached, they waived their right to execute a bond simply in double the value of the goods, and executed their bond in double the amount of complainant’s demand, and that they cannot now elect to satisfy said bond by the amount of the value of the goods.” From this language we cannot think that the bond and the statute in that case were like the bond and statute in the present case. The value of the property released in this case was very much less than the judgment recovered against the defendant. If the property had not been replevied by the defendant, and the attachment lien had been foreclosed thereon and the property sold, all the plaintiff could have realized would have been its value. It is stipulated by the parties that its value was $40. The trial court entered judgment in favor of plaintiff on the replevy bond against the sureties for that sum. For the reasons stated above we believe the judgment is supported by the law. It is accordingly affirmed. McALISTER and FLANIGAN, JJ., concur.

SWEENEY, Superior Judge. Appellant prosecutes this appeal from judgment and denial of motion for new trial, after the second trial of the cause following a remand therefor from a former appeal to this court, cause No. 1734. Morenci Southern Ry. Co. v. Monsour, 21 Ariz. 148, 185 Pac. 938. The cause was tried the second time upon the origi-. nal pleadings and with practically the same evidence. Appellee sought to recover for the injury to an automobile owned by him, which “was run into and against” by a locomotive being operated by the appel lant in a negligent manner, as appellee alleges, while appellee was entirely free from any fault or negligence whatever. Appellant pleaded that, at the time and place of the accident, appellee was guilty of contributory negligence, in this, that appellee drove his automobile upon the railroad crossing where it collided with the locomotive of the appellant, in a careless, improper and unskillful manner, without having or keeping the same under or within control, and without giving due attention thereto, at a dangerous and excessive rate of speed, wholly failing to look or to listen, or to stop, as he approached the crossing and before he attempted to pass over said crossing, and that but for such contributory negligence upon the part of appellee the damage for which he seeks to recover in this action would never have been sustained. With this issue alone we are concerned in the present appeal. At the close of appellee’s case, appellant moved the court to direct the jury to return its verdict for appellant, upon the ground that the whole of the evidence, without any conflict whatever, established that at the time and place of the accident appellee was guilty, and had been guilty, of contributory negligence, as heretofore stated, which barred any recovery whatever, which motion the court denied. Thereafter, when appellant and appellee had closed the case and the evidence was all in, appellant again made the same motion, which was again, by the court, denied. The jury returned a verdict for $1,600 in favor of the appellee. Judgment was entered upon the verdict. Appellant moved for a new trial, but the motion for a new trial was never passed on or disposed of, and at the expiration of a twenty-day period became denied and overruled by operation of law (paragraph 591, Revised Statutes of Arizona, 1913), and appel lant took this appeal from the said judgment and denial and overruling of said motion for a new trial by operation of law. The issue in the present appeal may be disposed of without an extended discussion of the evidence in the case, and as I view it by an interpretation and construction of the provision of the Arizona Constitution. The question to be determined is whether contributory neglig’ence in all cases is a question of fact for the jury, or may it not be sometimes one of law for the court. The Constitution of Arizona, article 18, section 5, provides: “The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.” This is not the first time this question has been before this court for consideration, it having had attention in the case of Inspiration Consolidated Copper Co. v. Conwell, 21 Ariz. 480, 190 Pac. 88, and again later in Davis v. Boggs, 22 Ariz. 497, 199 Pac. 116. In both of the above cases the opinion of the court was written by our late beloved Justice BAKER. Justice BAKER, speaking for the court in the Inspiration Consolidated Copper Co. v. Conwell, supra, says: “We are therefore called upon to determine for the first time in this jurisdiction, the scope and effect of the constitutional provision. The language of the provision is plain and unambiguous, and to our minds clearly indicates that the power or duty to finally and conclusively settle the question of contributory negligence or assumption of risk is, by its terms transferred from the court to the jury.” To the same effect the court cited the case of Dickinson v. Cole (Okl. Sup.), 177 Pac. 570, when the court construed a similar provision of the Constitution of Oklahoma and held that the defense of con- tributary negligence in all cases whatsoever must be left to the jury, and that the finding of the jury is conclusive upon the court-. The case was affirmed by the United States Supreme Court, Chicago, R. I. & P. R. Co. v. Cole, 251 U. S. 54, 64 L. Ed. 133, 40 Sup. Ct. Rep. 68. Since the above decisions were handed down, the same question arose in the case of the Southern Pac. Co. v. Martinez (C. C. A.), 270 Fed. 770. In that case the plaintiff’s intestate was killed while attempting to cross the railroad track at a crossing* in an automobile in full view of the approaching* train. Judge GILBERT, Circuit Judge, speaking for the Court of Appeals, said: “The negligence of the driver and of the plaintiff’s intestate in so attempting to cross the track, might have been sufficient to justify the court below in directing a verdict for the defendant, but for the fact that the Constitution of Arizona provides: ‘The defense of contributory negligence or assumption of risk shall in all cases whatsoever be a question of fact and shall at all times be left to the jury.’ ” We think that the evident purpose and intent of the provision is to make the jury the sole arbiter of the existence or nonexistence of contributory negligence or assumption of risk in all cases whatsoever. If this is not the force and effect of the provision, we can conceive of no reason why the framers of the Constitution should have adopted the measure. The contention of the defendant that, because the provision is found in the article of the Constitution entitled “Labor,” it must be limited in its scope and application to the relation of master and servant, cannot be sustained. The language is too broad and comprehensive to admit of such a narrow construction. The language is: “The defense of contributory negligence . . . shall, in all cases whatsoever, be a question of fact,” etc. Attention has been directed to the argument of counsel for plaintiff to the jury. Much latitude is allowed counsel in performing the important duties which they owe to clients and to public justice, but he is outside of his duty and his right when he appeals to prejudice irrelevant to the case. Properly, prejudice has no more sanction at the bar than on the bench. I believe the use of such language and vernacular does not tend to maintain the dignity of our courts or.of our profession, and counsel shouid abstain from such inflammatory argument. I do not think, however, the language is of such a character as would warrant a reversal of this case. Prom the foregoing expressions, I am of the opinion that the record is without reversible error, and the judgment of the lower court should be affirmed. ROSS, C. J., and FLANIGAN, J., concur. McALISTER, J., being disqualified, Hon. JOHN J. SWEENEY, Judge of the superior court of Yavapai county, was called to sit in the case.

ROSS, C. J. Joe R. Kirby, alleging that he is of Caucasian blood and that Mayellen Kirby is a negress, and that on or about May 27, 1914, in Pima county, Arizona, they were married, brought suit to have said marriage annulled. Defendant demurred to the complaint as not stating facts sufficient to constitute a cause of action, in that the statute, paragraph 3837, Civil Code of 1913, declaring “all marriages of persons of Caucasian blood and their descendants, with negroes, Mongolians or Indians, and their descendants, shall be null and void,” is unconstitutional because it conflicts with the federal Constitution: (1) In that it discriminates against descendants of persons of Caucasian blood in forbidding them to marry persons belonging to either of the other races or their descendants, while persons of mixed blood, other than Caucasian, may marry any person who is not Caucasian; (2) in that persons of mixed Caucasian blood cannot marry any person or lawfully contract any marriage in this state; and (3) the legislature is without power to prohibit persons of„ mixed Caucasian blood from contracting marriage in this state. The defendant, answering the complaint, denied the plaintiff was a person of Caucasian blood and that she was a negress. The demurrer was overruled. The only issue in the case was as to whether the plaintiff was of Caucasian blood and the defendant of negro blood. The plaintiff introduced, to sustain the affirmative of the issue, his mother who testified that she was a Mexican with no admixture of Indian blood; that the plaintiff’s father, Frank Kirby, was an Irishman, and that defendant is a negro. Plaintiff testified that he belonged to the white race and defendant belonged to the colored race. The defendant did not testify and did not introduce any testimony in support of her denial. The court entered a decree annulling the marriage, from which the defendant appeals. The testimony shows that plaintiff and defendant were incompetent under the above statute to contract marriage, one being of the white race and the other of the colored race, and, if the statute is one the legislature had the power to enact, the decision of annulment must be sustained. The domestic relation, including the marriage and its dissolution by divorce or proceedings to annul, as well as the regulation of it during its continuance, is peculiarly a matter of state regulation. This the courts have uniformly held where brought in question. Maynard v. Hill, 125 U. S. 190, 31 L. Ed. 654, 8 Sup. Ct. Rep. 723 (see, also, Rose’s U. S. Notes); Estate of Gregorson, 160 Cal. 21, Ann. Cas. 1912D, 1124, L. R. A. 1916C, 697, 116 Pac. 60; Norman v. Norman, 121 Cal. 620, 66 Am. St. Rep. 74, 42 L. R. A. 343, 54 Pac. 143. “In many jurisdictions intermarriage of the white and black races or of the white and Indian or Mongolian race has been prohibited by statute, and such statutes generally declare illegal and absolutely void marriages of white persons with negroes of the whole or part blood, Mongolians or Indians.” 18 R. C. L. 444, § 73. Our investigation of the cases involving a construction or application of such statutes has not brought to light any decision declaring them unconstitutional, and we have found but one case in which the validity of such a statute was questioned on that account. In that case the court asked this question: “Does the law of the state, which prohibits and makes void a marriage between individuals of the Caucasian and of the African races, deprive the parties in this case of their rights guaranteed to them by the Constitution and laws of the United States. 99 This question was answered in the negative. State of Georgia v. Tutty (C. C.), 41 Fed. 753, 7 L. R. A. 50. The defendant’s objections to the validity of the law, to wit, that under it persons of mixed Cauca sian blood cannot marry any person or lawfully contract any marriage in tbe state, if true, is an attack tbereon which she is not entitled to make for the reason that there is no evidence that she is other than of the black race. In other words, it is not shown that defendant is a descendant of the Caucasian race. It will be time enough to pass on the question she raises by her demurrer when it is presented by someone whose rights are involved or affected. As was said by this court in Gherna v. State, 16 Ariz. 344, Ann. Cas. 1916D, 94, 146 Pac. 494. “We believe it to be the unquestioned rule that a person cannot raise a constitutional objection to a part of a statute which is not applicable to his own particular case. The authorities are overwhelmingly to this effect.” The judgment is affirmed. McALISTER. and FLANIGAN, JJ., concur. ■

JENCKES, Superior Judge. The plaintiff, appellee, brings this action against the defendant, appellant, to recover damages for the killing of three head of livestock by defendant’s railroad train. The jury returned a verdict for plaintiff upon which judgment was entered. Appellant’s first assignment of error challenges the sufficiency of the complaint, the trial court having overruled his general demurrer. The complaint alleges, substantially, the killing of the stock by one of defendant’s trains at a stated time and place— “occasioned by tbe negligent manner in which the servants and employees of defendant maintained the fences along said line of railroad; that the defendant permitted said fences inclosing said railroad track to become dilapidated and torn down, by reason of which plaintiff’s cattle were permitted to stray upon the tracks and right of way of defendant.” This sufficiently states a cause of action against the defendant for the killing of livestock under paragraph 3779, Revised Statutes of 1913. It is not necessary to set forth the precise location of the defective fence; neither is it necessary, as urged by appellant, to allege expresses verbia that such fence or other barrier was located at a place where the statute permits a fence or other barrier to be maintained, because the failure to maintain a good and sufficient fence at any other point would not be negligence, and proof of such failure would not support the allegation of the complaint. The allegation of negligence in the maintenance of the fence, coupled with the allegation of the killing of the stock by reason thereof, is a sufficient charge of failure to maintain the fence at a point where the statute permits a fence to be maintained. The demurrer to the complaint was properly overruled. Appellant’s second assignment of error is the refusal of the -trial court to grant his motion for an instructed verdict at the close of all the evidence, on the ground that the evidence does not support the allegations of the complaint. The evidence shows that the stock came upon the right of way from plaintiff’s pasture through a gap in the right of way fence, where it was torn down for about eig’hty rods. Some of them later on got into the field on the opposite side of the track belonging to one H. R. Nelson, who, finding them there, drove all of the stock, including those which remained upon the right of way, out into the public highway at a point about a quarter of a mile distant from the railroad crossing where the killing occurred. His testimony in this respect was as follows: “In the morning before the killing of these animals they were, some of them, in my field, and some of them on the right of way. I gathered them all up and drove them out on the road. ... I drove them all out of the right of way and all out of my pasture through my corral into the highway, . . . fifteen or twenty head.” Shortly thereafter the stock went on to the premises of one Eliza R. Johns, across the highway from the Nelson place. Mrs. Johns, seeing them in her inelosure, drove them back into the highway. From the Johns place they passed directly along the highway and on to the railroad crossing, where three of their number were struck and killed by defendant’s train. There is no dispute about the facts presented by the foregoing statement of the evidence, and if they do not support the judgment, it must be .reversed. One line of appellant’s argument upon this assignment of error is directed to the proposition that, as the agency of third parties over which he had no control intervened, the failure to fence could not have been the proximate cause of the killing of the livestock. Appellee’s answer to that argument is that as such third parties were acting within their legal rights in driving the stock from their respective premises, their acts in so doing could not operate as an intervening efficient cause. The conclusion which we have reached upon the whole case, however, disposes of that question; for, even if the failure to fence were the proximate cause of the killing of the stock, nevertheless it conld not give rise to a cause of action, unless such failure were also a violation of plaintiff’s legal rights — that is to say, unless it constituted a breach of a legal duty which the defendant owed to the plaintiff. This action is brought under paragraph 3779, Revised Statutes of 1913, which reads as follows: “In all cases where the livestock of any person is injured or killed by locomotive or cars of [on] any portion of the line of any railroad company within this state unfenced by good and sufficient fence or other barrier sufficient to turn livestock, the company . . . shall be liable in damage therefor to the owner of such livestock, to be recovered in any court of competent jurisdiction within this state, unless it be shown on the trial of any action instituted for the recovery of such damages, that the owner of such livestock, his agent or servants, immediately contributed to such killing or injury. ...” Public highway crossings are not within the purview of the statute as being “any portion of the line unfenced,” etc., public convenience and necessity requiring, of course, that such crossings be kept open. Bechdolt v. Grand Rapids & I. Ry. Co., 113 Ind. 343, 15 N. E. 686; Prickett v. Atchison, T. & S. F. R. Co., 33 Kan. 748, 7 Pac. 611; Corcoran v. Wabash R. Co., 138 Mo. App. 408, 122 S. W. 743. Section 568 of the Penal Code of 1913 makes it a misdemeanor for any person willfully to obstruct any road by placing therein any impediment to transportation or travel thereupon. This is an express prohibition against the fencing in of highway crossings by railroad companies. So of course no action will lie for the killing or injury of livestock upon a public highway crossing because of the failure to maintain at such crossing “a good and sufficient fence or other barrier sufficient to turn livestock. ’ ’ Appellee contends that, even though the proven facts do not show the stock to have been killed on an unfenced part of the line at a point where defendant is permitted by law to maintain a fence, but, on the contrary, show the killing’ to have taken place upon a public highway crossing which defendant is prohibited by law from fencing, nevertheless he is entitled to recover any damages consequent upon defendant’s failure to maintain a sufficient fence, where such failure is the proximate cause of the injuries complained of; that, as the statute creates a right in his favor to have the right of way fenced for his protection, a remedy must exist to redress the violation of that right. Appellant argues, however, that as paragraph 3779 does not make it the duty of the railroád company to fence its line of road, but merely creates a liability for the killing and injury of livestock on unfenced portions of its line, and there being no other provision of statute creating the duty to fence, no action for negligence will lie, because there is no breach of a legal duty. That the basis of the action under paragraph 3779 is negligence has already been declared by this court in Atchison etc. R. Co. v. Carrow, 18 Ariz. 83, 156 Pac. 961. Also in passing upon the same question in determining the constitutionality of an Iowa statute similar in nature to paragraph 3779, the Supreme Court of the United States said: “As it is thus the duty of the railway company to keep its tracks free from animals, its neglect to do so, by adopting the most reasonable means for that purpose, the fencing of its roadway as indicated by the statute of Iowa, justly subjects it, as already stated, to punitive damages where injuries are committed by reason of such negligence.” Minneapolis Ry. Co. v. Beckwith, 129 U. S. 26, 32 L. Ed. 585, 9 Sup. Ct. Rep. 207 (see, also, Rose’s U. S. Notes). The text of the Iowa statute there under consideration, in so far as it relates to the question here presented, reads as follows: “Any corporation operating a railway, that fails to fence the same against livestock running at large at all points where such right to fence exists, shall be liable to the owner of any such stock injured or killed by reason of the want of such fence for the value of the property or damage caused, unless the same was occasioned by the willful act. of the owner or his agent. . . .” (Code 1873, §1289.) The basis of the action authorized by the statute is negligence, that is, the failure of the railroad company to perform a duty thereby imposed upon it. It cannot be denied that the maintenance of a good and sufficient fence or other barrier is an essential part of the duty thus imposed, and that if a failure to maintain such a fence or barrier has resulted in a violation of plaintiff’s rights, he is entitled to recover damages for injuries proximately resulting therefrom. The question to be determined here, then, is whether or not the failure of the defendant to maintain a good and sufficient fence as disclosed by the evidence was a breach of a legal duty owing by defendant to plaintiff under the circumstances of the case, and therefore a violation of plaintiff’s rights. Before we can answer that question it is necessary to ascertain just what plaintiff’s rights are under the statute in question. His rights must be and are, of course, correlative to the duty imposed upon the railroad company, and the rights and duties of plaintiff and defendant depend upon the legislative intent, which is to be discovered from the interpretation or construction to be placed upon the statute. In the case of Ingalsbe v. St. Louis-San Francisco Ry. Co. (Mo. App.), 219 S. W. 1005, decided by the Springfield Court of Appeals of the state of Missouri, a cow was killed as a result of eating sorghum cane growing upon a certain field adjoining the railway right of way. The animal came upon the right of way at a point where there was no fence, and from thence passed into the said field through or over the fence between that field and the right of way. The Missouri statute in express terms requires railway companies to fence their right of way to keep out livestock, or to respond in damages for certain injuries resulting from failure so to do. It was held that the statute does not give a common-law action for all damages which may be traced to such failure. The Court of Appeals certified the case to the Supreme Court of Missouri for final determination, which court upheld and approved the decision of the Court of Appeals (Ingalsbe v. St Louis, S. F. Ry. Co. (Mo.), 243 S. W. 323), holding that the intent of the legislature in passing the act requiring railroads to fence their right of way was the governing factor in determining- whether or not a common-law action would lie in such a case because of the failure to fence. The Arizona statute under consideration, unlike the Missouri statute, does not in express terms impose upon railroad companies the duty to fence their lines. The obligation arises only by implication from the imposition of the liability to pay damages. Sullivan v. Oregon Ry. & Nav. Co., 19 Or. 319, 24 Pac. 408. Being implied, it arises only from the necessity of the occasion to supply something which it is obvious was tacitly understood to be within the purview of the act' at the time of its passage. But it can rise no higher than the necessity. It exists as a necessary corollary to the liability to pay damages. The liability is to pay, in the absence of a sufficient fence, damages for livestock killed or injured by locomotives or cars on any portion of the line which may lawfully be fenced, and the duty to fence does not extend beyond the requirement to prevent such killing and injury. In other words, the duty imposed is a combination of the requirement to fence and the requirement to refrain from killing and injuring livestock. Neither requirement is absolute in itself— no action will lie for the failure to fence alone, nor for the killing or injury of livestock, where a good and sufficient fence is maintained. It is the failure to perform both requirements that gives rise to the cause of action. It is thus easy to distinguish the correlative right of plaintiff to be, not to have the railway company fence its right of way for his protection at all events, but merely to have it refrain, in the absence of a sufficient fence, from killing or injuring plaintiff’s livestock at such place as the law permits a fence to be erected. As the Supreme Court of the United States said in Minneapolis Ry. Co. v. Beckwith, supra, “It is thus the duty of the railway company to keep its track free from animals.” (Italics ours.) It may leave its line unfenced if it so chooses, there being no absolute duty, either at common law or by statute, to fence; and in such event it can be held liable because of so doing only for livestock “injured or killed by locomotive or cars” on any portion of the line which it is lawful to fence. It cannot be held liable for livestock injured or killed in any other way or on parts of the line which it is unlawful to fence, without alleging as negligence some other act than the failure to fence. Although the statute is in derogation of the common law we have given it the most liberal construction of which its terms are susceptible, as paragraph 5551, Bevised Statutes of 1913, requires. There is no room for a more liberal construction. Appellant presents additional assignments of error based upon the giving of certain instructions to the jury. The conclusion here reached disposes of such assignments as the instructions complained of were all predicated upon the erroneous assumption by the trial court that upon the facts disclosed by the evidence the plaintiff had a common-law remedy against the defendant for the breach of a statutory duty to maintain a good and sufficient fence. The judgment of the trial court is reversed and the cause remanded, with directions to dismiss the complaint. ROSS, C. J., concurs. MoALISTEB, J., being disqualified, took no part in the decision of this case.

McALISTER, J. The Lumbermen’s Indemnity Exchange, a fire insurance company organized and existing under the laws of Washington, applied to the Arizona Corporation Commission in September, 1920, for a license to transact business in this state, and in performance of its duty upon the filing of such an application the Commission appointed an examiner and °one assistant to go to the city of Seattle in said state to examine the books of account, records, and papers of said company * It was understood and agreed at the time by both parties that the expenses of the examination and investigation would be paid by the company as required by statute, and, in accordance therewith the examiner and his assistant went to Seattle for this purpose. Upon their return appellant paid them $674.97, which was made up of the following items: $274.97 for railroad fare, hotel, meals, telegrams and other necessary expenses in making the trip; $250 for the services of the examiner, ten days at $25 per day, and $150 for the services of the assistant examiner, ten days at $15 per day. A special demurrer to the items constituting the compensation for the services of the examiner and his assistant was interposed and sustained, whereupon judgment for the sum of $274.97 was confessed by appellee and entered by the court, and it is from this judgment that appellant has brought the case here for review. The only question presented is whether an insurance company applying for a license to do business in this state is liable for the services of an examiner and his assistant in making an investigation or examination of its condition, it being conceded that it must pay the expenses necessarily incurred in such an undertaking’. Appellant contends that the services óf the examiner is just as much a part of such expense as his railroad fare or hotel bills, while appellee claims that they are not, the contention of each being based upon paragraph 3380 of the Revised Statutes of 1913 (Civ. Code), the pertinent parts of which read as follows: “3380. The expense of every examination and investigation of any insurance company as provided for in the preceding sections shall be borne and paid by the company so examined, but the examiner or examiners in making such examination or investigation shall not charge any fee to, nor receive any compensation from any insurance company for their services," and shall be allowed only their actual traveling and necessary expenses required by such examination. For the services of all others employed in making such examination or investigation the company being-examined shall be charged the actual amount paid for their services plus their actual traveling and necessary expenses required by such examination. All charges for making such examination or investigation shall be presented in the form of an itemized statement approved by the Corporation Commission and audited by the auditor of the state and paid on his warrant drawn in the usual manner on the state treasury to the person making the examination. The company examined on receiving- a certified copy of such statement so approved shall pay the amount over to the Corporation Commission to be by it paid into the state treasury to replace the amount drawn out as provided.” It is apparent from this that the expense of every examination and investigation of an insurance company shall be paid by the company examined, and that the examiner shall neither charge to nor receive from such company any compensation for his services, but shall be allowed only his necessary traveling expenses. The second sentence, however, provides that the services plus the actual traveling- and necessary expenses Qf all others employed in making the examination shall be charged to the company examined, but the latter part of the paragraph provides that payment for all charges to the person conducting the examination shall be made by the state treasurer upon a warrant of the state auditor drawn upon the presentation to the latter of an itemized statement audited by him after approval by the Corporation Commission. A certified copy of this statement is then forwarded by the Corporation Commission to the company examined, and it pays the amount thereof to the Commission, which in turn pays it into the state treasury to replace the amount paid the examiner. From this it follows that the company’s obligation does not arise until the examination has been made, and that no authority is conferred upon it to pay the examiners directly at any stage of the investigation either their per diem or expense money. The payment, therefore, of no part of the expense is required previous to the completion of the examination and the receipt by the company of a proper statement showing the items of expense it' is obligated to meet. What are these? The actual traveling and necessary expenses of the examiners, and the services, plus the actual traveling and necessary expenses of all others employed in making the examination. It is specially provided, however, that the examiners shall not charge any fee to nor receive any compensation from the company examined for their services, and a fair construction of this provision, not only prohibits the examiner himself from making such a charge or receiving such compensation directly, but prevents him from doing so indirectly through the auditor and treasurer with the approval of the Corporation Commission. The succeeding clause, when read in the light of the entire paragraph, stating that the examiners “shall be allowed only their actual traveling and necessary expenses required by such examination,” means merely that these expenses shall be a proper charge against the company to be paid to the Corporation Commission in the way provided at the conclusion of the investigation, and not to the examiner direct as they are incurred. It would be contrary to the meaning intended to hold that the examiner himself could neither make this charge nor receive such compensation, but that the Corporation Commission could, for this would permit to he done indirectly what the statute forbids, since the payment under these conditions, though to the Corporation Commission, would be none the less in settlement of the examiner’s services. This view is confirmed by the fact that immediately following the sentence denying the examiner the right to charge the company for his services is one providing specially that the company shall be charged for the services of all others employed in making the examination, thus placing the compensation of the examiners themselves and those employed to assist them upon a different basis, the services of the latter only being made a charge against the company. While, therefore, the compensation of the examiner may be a part of the expense of making an examination of an insurance company where the commission appoints one specially for a particular piece of work, yet the special provision that his services shall not be a charge against the company must prevail, for “where general terms or expressions in one part of a statute are inconsistent with more specific or particular provisions in another part, the particular provisions will be given effect as clearer and more definite expressions of the legislative will.” 36 Cyc. 1130. The statute, excepting the services of the examiner from the expenses of an examination which the insurance company must bear, was evidently drawn upon the theory that under paragraph 3379 of the Revised Statutes of 1913 the Commission would have regularly in its employ salaried persons qualified to perform this service; but the fact that it does not have them, as appellant states in its brief is true,. does not relieve the state from the obligation of paying them when they are employed. Hence the per diem of the examiner has no place in the statement upon the receipt of a certified copy of which the company remits to the Corporation Commission. It is contended further that, inasmuch as it appears from the complaint that appellee agreed before the examiners were appointed and the investigation made that it would pay for their services, it should be compelled to live np to its agreement, even if it be held that the statute does not make them a legal charge against the state. We think, however, that appellee’s obligation in the premises is measured by the terms of the statute providing what part of the expenses of-the examination it shall bear, and that since the services of the examiners are especially excepted from these, the agreement that it would pay for them is unenforceable. The Commission could require of the company in the first instance only what the statute permits, and necessarily its right to redress is similarly circumscribed. The judgment of the lower court is affirmed. ROSS, C. J., and FLANIGAN, J., concur.

FLANIGAN, J. This is an action in mandamus, brought by appellant against appellee Montgomery, sheriff of Maricopa county, to compel the execution and delivery to appellant of sheriff’s deed to certain real property of W. W. Bruner, sold under execution issued on a judgment obtained by appellant against Bruner in the superior court of Maricopa county, ■which judgment was docketed in that court on May-23, 1918. From the return of the sheriff to the alternative writ and other pleadings in the case the following facts appear: Plaintiff’s judgment was for the sum of $135.80 and interest. Execution was issued on this judgment May 20, 1919, and the property sold thereunder, the certificate of sale issuing to plaintiff as purchaser on June 18, 1919. On January 24, 1919, one W. H. Criswell attached the same property in an action brought in the same court, and on April 9,1919, obtained judgment against Bruner for the sum of $1,550 and interest, with foreclosure of the attachment lien. On May 3, 1919, execution was issued on this judgment, and on May 27, 1919, the property was sold thereunder to Criswell, and certificate of sale made to him accordingly. On December 15, 1919, Criswell assigned his interest in the certificate to M. J. Fields, appellee herein, and on December 17, 1919, sheriff’s deed was issued to Fields. Thereupon Fields, claiming to be the successor in interest of Brnner and as such entitled to redeem from the sale to plaintiff (paragraph 1374, Civ. Code 1913), paid to the sheriff (paragraph 1381, Id.) $192.50, being the amount required for such purpose. The sheriff thereupon tendered this money to plaintiff, but she refused to accept it, and brought this action. Upon the trial of the cause the appellees formally offered in evidence only the “judgment-roll” in the case of Criswell v. Bruner, but under this offer there was actually received in evidence what would appear to be the entire record of the case, being the complaint, original summons with return, affidavit for service of summons by publication, the entry of default for failure to answer, the judgment, the attachment proceedings, a statement of the evidence taken after the entry of default, approved and signed by the jndge in accordance with paragraph 558, Civil Code of 1913, and other papers unnecessary to detail. The testimony ‘of F. H. Larsen, Criswell’s attorney, was also taken. Judgment was entered, denying plaintiff the relief prayed for and dismissing the complaint, and the case is before us on the appeal from such judgment. The questions for determination arise on appellant’s denial of the right of the appellee Fields, who received the sheriff’s deed upon the sale under the Criswell judgment, to redeem, within the six-month period allowed by paragraph 1375 of the Civil Code, from the sale made to appellant. The contention of appellees is that the sheriff’s deed to Fields' under the Criswell judgment and execution issued thereon conferred upon Fields as Criswell’s assignee the right to redeem said property as the successor in interest of the judgment debtor Bruner. Under these facts it would seem that the right of Fields to redeem could be questioned only in the event that he was not the lawful successor in interest of Bruner in the property, a consequence following only upon the total invalidity of the Criswell judgment. Such, indeed, was the view taken by appellant in the court below, where, as shown by her pleadings, and objections to testimony, the judgment was attacked upon the ground that it was null and void because of lack of jurisdiction of the person of Bruner. In deciding the. questions made by this attack upon the judgment, we are to be understood as considering that the specific objections in support of that assertion question the sufficiency of the proceedings for failure to observe certain of the statutory requirements with respect to the notice to be given to a nonresident defendant in a proceeding essentially in rem. Notwithstanding general expressions therein about which no point is made, the judgment does not purport to bind the defendant Bruner in person, and under familiar principles it could not so bind him. The statement that the court had no jurisdiction of the person of such defendant will therefore be taken as a merely convenient designation of the effect of the failure to observe the statutory requirements referred to, which, it is claimed, made the judgment unauthorized and void. In the opening brief for appellant the theory upon which the case was presented to the court below is adhered to, the errors assigned being that the judgment is null and void, in that the court did not acquire jurisdiction of the person of Bruner to authorize it to render judgment against him, and, further, that the court erred in holding the affidavit of non-residence filed by Criswell’s attorney, Larsen, to be sufficient, and in holding that a copy of the summons, after the return of the original summons to the clerk of the court with the sheriff’s return, might be published in compliance with the- statute as a valid step in the constructive service. In the reply brief, however, some argument is made and cases are cited for the purpose of showing that the attack upon the judgment is not limited to a challenge of the jurisdiction of the court and the consequent nullity of tlie judgment, but that the proceedings may be regarded as proper in which to avoid the judgment upon showing a merely erroneous exercise of jurisdiction rather than a total want of power. In view of the position taken by appellant in the lower court and in her opening brief in this court, we deem it unnecessary to do more than point out that the attack here is undoubtedly collateral and not direct, and, being such, the sole question for determination upon the record is whether the Criswell judgment was void for lack of jurisdiction. See Bennett v. Wilson, 133 Cal. 379, 85 Am. St. Rep. 207, 65 Pac. 880; 23 Cyc. 1068; Van Fleet on Collateral Attack, § 12, in which some of the cases cited by appellant are referred to and commented upon. Under these authorities there can be no question but that the attack upon the judgment in this case must fail, unless the judgment is void, and it does not avail appellant to show that the judgment is erroneous, irregular or for other reasons liable to be reversed or vacated in a direct proceeding’. The appellant is concerned only with the question of the right of Fields to redeem the property, and not with how he obtained the right, which he must necessarily have, unless the judgment upon which it is predicated is void. Such being the nature of the attack, the question we shall next consider is what proceedings in the Criswell case may be inspected to determine the validity of the judgment rendered therein. It is contended by appellees that under the statute (paragraph 565, Id.) the judgment-roll in a case where the complaint is not answered is constituted only of the summons, with return of service, and the complaint, with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of-the judgment, and that in a collateral proceeding the validity of the judgment is to be determined by an inspection of the judgment-roll alone. This statute was apparently adopted from California, and many decisions from that state are cited to support this contention. On the trial, however, there was received in evidence, not only the judgment-roll, but the entire record of the cause, and we have no doubt that, being thus introduced, this record is before us for all purposes, and must be considered in the determination of this appeal. Thompson v. Thompson, 91 Ala. 591, 11 L. R. A. 443, 8 South. 419. The first assignment of error is that the judgment is void because the record does not disclose a return of service of summons by publication in the mode prescribed by paragraphs 453, 454, Civil Code of 1913. In order to present the basis of this and the remaining assignments of error other facts must be stated. It appears that Mr. Larsen, who as the attorney for Criswell filed the suit against Bruner, received the original summons from the clerk, and took this summons, together with a copy thereof attached to a copy of the complaint, to the sheriff’s office, and requested the latter to serve summons upon Bruner. The sheriff on January 30,1919, made return on the original summons that after due and diligent search he had failed to find Bruner. On the same day Larsen filed an affidavit for publication of summons, containing the following language: “F. H. Larsen, being first duly sworn, states that he is 21 years of age, and that he is the attorney for W. H. Criswell, plaintiff in the above entitled cause, and that he has tried to locate the defendant, W. W. Bruner, through the sheriff’s office, and by making inquiry from neighbors of the said W. W. Bruner, to wit, Mr. Krieger, and Mr. Hough, and also by writing letters to the last known address of the said W. W. Bruner; that all inquiries failed to get any information as to the whereabouts of the defendant, W. W. Bruner. This affiant therefore states that the whereabouts of the said defendant, W. W. Bruner, is unknown at this time.” The summons was thereafter published for the statutory period and an affidavit showing such publication was- made by the bookkeeper of the Gazette Printing Company, the publisher of the “Arizona Gazette. ’ ’ This affidavit, together with a copy of the original summons, was taken by Larsen to the clerk’s office and at Larsen’s request the clerk attached these papers to the original summons then on file. Under these facts the point made for reversal is that the statute was not complied with, as no return of service was made by the sheriff or other officer serving the summons by publication, nor by the plaintiff or his attorney in like manner as though made by an officer, and that therefore the judgment based upon such return is null and void because the court did not acquire jurisdiction of the person of Bruner. Cases are cited which hold that upon direct attack such an irregularity invalidates the judgment. It is not denied that the summons was in fact published for the time required by law. The assumed lack of jurisdiction is therefore predicated solely upon the failure of the plaintiff or his attorney to make and file in person the affidavit showing the fact of publication as required by paragraph 454 of the Civil Code. In Crook v. Crook, 19 Ariz. 448, 170 Pac. 280, upon a motion to amend the return of service of summons by publication, and proof made of an erroneous date in the affidavit, it was held that the court should have granted the motion to amend the affidavit of service nunc pro tunc as of the judgment date, and the case was considered as if such correction had been made, the court holding that “it is the fact of service, and not the return of service, that confers jurisdiction”— citing Ranch v. Werley (C. C.), 152 Fed. 509-515; Herman v. Santee, 103 Cal. 519, 42 Am. St. Rep. 145, 37 Pac. 509. In Lucky Boy Mining & Milling Co. v. Moore, 23 Ariz. 291, 203 Pac. 557, the following language is quoted with approval: “When service has in fact been made, so as to give'the court jurisdiction, but the proof thereof is defective, or altogether lacking, the defect may be remedied or the proof supplied after judgment. It is the service, and not the proof thereof, that gives the court jurisdiction.” Both these decisions were made in proceedings which directly attacked the judgment, and, the fact of service being made to appear, the contention of invalidity was denied, without requiring actual amendment of the record. The attack in this case being collateral, for much stronger reason it must be held that the failure to comply with the statute merely made the return defective without invalidating the judgment. In support of jurisdiction a showing of its existence in fact should be allowed. See, also, the following cases: Scott v. Pleasants, 21 Ark. 364; Webster v. Daniel, 47 Ark. 131, 14 S. W. 550; In re Newman’s Estate, 75 Cal. 213, 7 Am. St. Rep. 146, 16 Pac. 887; Jones v. Gunn, 149 Cal. 687, 87 Pac. 577; Spaulding & Co. v. Chapin, 37 Cal. App. 573, 174 Pac. 334; Morrissey v. Gray, 160 Cal. 390, 117 Pac. 438; Bunce v. Bunce, 59 Iowa, 533, 13 N. W. 705; Fanning v. Krapfl, 68 Iowa, 244, 26 N. W. 133; Harrison v. Beard, 30 Kan. 532, 2 Pac. 632; Kelly v. Harrison, 69 Miss. 856, 12 South. 261; Paulin v. Sparrow, 91 Ohio St. 279, 110 N. E. 528; Moore v. Perry, 13 Tex. Civ. App. 204, 35 S. W. 838; G. Elias & Bro. v. Boone Timber Co., 85 W. Va. 508, 102 S. E. 488; White v. Hinton, 3 Wyo. 753, 17 L. R. A. 66, 30 Pac. 953. The language used in Paulin v. Sparrow, supra, is apt: “The important question is not whether the return of service is defective, but rather, was the defendant in fact duly and legally served with process? So far as this defect in the return of the sheriff is concerned, the defendant is not now contending that she was not duly and legally served with summons. Her contention is that the original return does not fully show that fact. It is true that she disputes the facts stated in the return, but conceding for the present that the facts stated in the return are true and binding upon her, then the only question is, Will a defective return which does riot affirmatively show upon its face that no service was in fact made upon defendant defeat the jurisdiction of a court over a defendant who was in fact legally served with process? If this defendant had come into court before judgment and moved to quash the service, and these further facts that are not stated in the return of the officer were admitted or proved, the court would have promptly overruled the motion to quash and ordered the return of the sheriff amended to speak the truth. If at any time after the rendition of this judgment, this plaintiff had made a direct attack upon it and it had been admitted or made to appear by the evidence that she had been duly and legally served with summons, but that the return of the .sheriff was defective, in that it did not show the facts authorizing the service of a copy of the summons to be made upon Mary J. Davidson, her petition would have been promptly dismissed. It would be a strange construction of the law that would permit a defendant to admit that be had been duly and legally served with summons and yet deny the jurisdiction of the court to render a valid judgment against him merely because the return of the officer serving the process is defective.” We hold the assignment to be without merit. The next contention is that Larsen’s affidavit was insufficient to authorize the publication of summons, and therefore the judgment is void. It will be noted that the affidavit does not state, as required by the statute (paragraph 447, Id.) that the defendant is either a nonresident of the state, or is absent from the state, or is a transient person, or that his residence is unknown to the affiant, but merely that the plaintiff’s attorney has tried to locate the defendant through the sheriff’s office and by making inquiry from the neighbors of defendant and by writing letters to his last-known address; that all inquiries failed to get any information as to the whereabouts of the defendant, and affiant therefore states that the whereabouts of the defendant is unknown. The appellant in support of her contention that the judgment is void and therefore subject to collateral attack cites the cases of Young v. Young (Tex. Civ. App.), 127 S. W. 898, Barber v. Morris, 37 Minn. 194, 5 Am. St. Rep. 836, 33 N. W. 559, Brown v. St. Paul & N. P. Ry. Co., 38 Minn. 506, 38 N. W. 698, and Gilmore v. Lampman, 86 Minn. 493, 91 Am. St. Rep. 376, 90 N. W. 1113, holding that the filing of a sufficient affidavit is a preliminary step essential to a valid publication of summons, which, if omitted, invalidates the judgment. The contrary of this was held in Tilton v. O’Shea, 31 Wash. 513, 72 Pac. 106, in which the court decided that the failure to file such affidavit is but an irregularity which does not render the judgment void, and expressly disapproved of Barber v. Morris, supra. See, also, Cason v. Cason, 31 Miss. 578; Banta v. Wood, 32 Iowa, 469. Compare Carrico v. Tarwater, 103 Ind. 86, 2 N. E. 227; Ward v. Lowndes, 96 N. C. 367, 2 S. E. 591-597; Shawhan v. Loffer, 24 Iowa, 217, 226. We are not called upon, however, to decide that question. As noted, the court before rendering judgment took the testimony of Mr. Larsen, which was later reduced to writing and filed as a statement of the evidence in accordance with the provisions of paragraph 558 of the Civil Code. This statement shows that the court investigated the facts required to be stated in the affidavit, and the testimony given may fairly be said to have justified the court against impeachment even for error in finding that the defendant, Bruner, was a nonresident of the state, and that his actual residence was not known. Furthermore, the judgment contains the recital that “the plaintiff introduced evidence to show that service had been duly made on the defendant by publication.” It is therefore manifest that the court specially considered and decided the existence of the facts required to be shown by the affidavit. As the record sufficiently shows that the court had jurisdiction in fact, the judgment must be held good against the objection. Crook v. Crook, and Lucky Boy M. & M. Co. v. Moore, supra. It is next urged that the publication of the copy of the summons, the original summons being on file and not withdrawn for service, could not confer jurisdiction. We see no merit in this 'contention. In Hancock v. Preuss, 40 Cal. 572, it was held that in a collateral attack upon a judgment it would be presumed that the court made the requisite order permitting the summons to be withdrawn for further service. Assuming that the testimony of Larsen, when considered with the record, rebuts that presumption, the case cited-is authority also for the rule, which" we think is a sound one, that the redelivery of the summons without such an order would be a mere irregularity which would not render the ser vied void. It does not appear how the defendant, Bruner, could have been prejudiced in the slightest degree by the failure to withdraw the. summons for service where the substantial steps required by statute to impart notice were taken. The omission was a mere defect, not going to the substance of the statutory requirements concerning notice, and does not render the judgment void. See, generally, Webster v. Daniel, supra; Hume v. Conduitt, 76 Ind. 598-601; Gandy v. Jolly, 35 Neb. 711-713, 37 Am. St. Rep. 460-462, 53 N. W. 658-660; Shawhan v. Loffer, supra; Moore v. Perry, supra; Cole v. Butler, 43 Me. 401; Hendrick v. Whitmore, 105 Mass. 23; Bunce v. Bunce, supra; Kelly v. Harrison, 69 Miss. 856, 12 South. 261; Harpold v. Doyle, 16 Idaho, 671, 102 Pac. 158. The judgment is affirmed. BOSS, C. J., and McALISTEB, J., concur.

FLANIGAN, J. International Avenue, in the city of Douglas, Arizona, lies immediately north of the international boundary line between the United States and the republic of Mexico, and runs in an easterly and westerly direction. In the southern part of said avenue and running in the same direction with it is a large drainage ditch which for a long time had been used or permitted to exist by the appellant city in an open and unguarded condition. A Avenue is a north and south highway in said city and has its southern terminus on International Avenue. Between 12 and 1 o’clock of the morning of June 5, 1920, the plaintiff was traveling south on A Avenue in an automobile, and upon reaching International Avenue turned to the west. In the north bank of the ditch, about 175 feet west of the intersection of these avenues, there was a hole or excavation caused apparently by the erosion or crumbling of the ditch, so that the bank at that place extended from the original line of the ditch in a semi-circular form into the street about seven or eight feet. As plaintiff proceeded westerly on International Avenue, with his automobile lights turned on, an automobile, driven by an unidentified person, coming from the west on International Avenue, when about opposite the ditch, cut diagonally across plaintiff’s path from south to north. In order to avoid the apparent danger of collision plaintiff was forced to travel on the south side of the road. In so doing the left rear wheel of his car was brought to the edge of the hole, and, the earth giving away, the automobile fell into the hole, and, turning over on plaintiff, injured him. At the time of injury plaintiff was traveling about three miles an hour. The speed of the other machine he estimated at between fifteen and twenty miles an hour. The facts stated appear from the testimony of plaintiff and are not disputed, and epitomize briefly, but sufficiently, the testimony upon which he obtained judgment against the defendant city for its negligence in maintaining the ditch in an unguarded condition. No question is made that the appellant city was negligent in permitting the ditch to remain in a condition dangerous to travelers on the avenue, and it is conceded that the only legitimate inference from the stranger’s unexplained conduct is that he was negligent in cutting across plaintiff’s path. Upon these facts the appellant city argues its non-liability for the injury sustained by the appellee, upon the ground that the negligent act of the stranger in driving his car across the path of plaintiff, thereby compelling plaintiff to alter his course, was a new cause which intervened to bring about the injurious result, and, as such new cause was not a consequence of the negligence of the appellant, that .therefore appellant’s conceded negligence was merely a remote cause or mere condition of the injury, while the negligence of the driver of the approaching automobile was the proximate cause thereof. This theory of the law counsel for appellant have presented to us in especially able oral and written arguments. The following language, quoted in the case of Crandall v. Consolidated Tel. etc. Co., 14 Ariz. 322, 127 Pac. 994, from the decision in Christianson v. Chicago etc. Ry. Co., 67 Minn. 94, 69 N. W. 640, is a very clear statement of certain rules of the law of negligence : “What a man may reasonably anticipate is important and may be decisive in determining whether an act is negligent, but it is not at all decisive in determining whether that act is - the proximate cause of an injury which ensues. If a person had no reasonable ground to anticipate that a particular act would or might result in any injury to anybody, then, of course, the act would not be negligent at all; but, if the act itself is negligent, then the person guilty of it is equally liable for all its natural and proximate consequences, whether he could have foreseen them or not.” Otherwise expressed, “the law is that, if the act is one which the party ought, in the exercise of ordinaiy care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from it, although he could not have anticipated the particular injury which did happen. Consequences which follow in unbroken sequence, without an intervening efficient cause from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer is responsible, even though, he could not have foreseen the particular results which did follow.” In the Crandall case the facts were that the defendant telephone company had strung its wires in too close proximity to the power transmission wires of the Consolidated Canal Company, without protection against their coming into contact with such wires in the event of their breaking or sagging. It ap peared also that the telephone instrument at the plant where plaintiff’s intestate was employed was not protected from an overcharge of electricity by ground wires, or fuse plugs, or other approved safety devices. The injury was the direct result of the act of one Cuber in cutting a large limb or branch from a fig tree standing on his premises, in proximity to the power line and the line of the telephone company near the point where the lines crossed, which limb or branch in falling struck the power wires, causing them to break and' come into contact with the telephone wires, whereby the electric company’s current from the power wires was transferred to the telephone wires leading to the telephone instrument in the plant where deceased was working, so causing his death. It was contended for the telephone company that the injury was due solely to the intervening act of Cuber, and was not caused by the negligence or fault of the company. The court stated in the course of the opinion that it was clear that the combined act of the defendant and Cuber produced conditions that resulted in the injury, and, further, that if the act of Cuber was negligent, the damage resulted from the concurrent negligence of the defendant and Cuber, and the act of each might be counted on as the wrongful cause of the injury, and the parties held jointly or severally liable for such injury. And it was held that the merely negligent act of Cuber was not such an intervening cause as would break the chain of causation brought about by the negligence of the telephone company, and the telephone company was therefore responsible for the whole damage. The ruling in the Crandall case was followed in Mesa City v. Lesueur, 21 Ariz. 532, 190 Pac. 573, where the negligence of the defendant city in insufficiently tamping down the loose earth excavated from a trench which it had constructed had co-oper ated with the work of a gopher in perforating the banks of an irrigation ditch so as to let ont water in the ditch, to the injury of adjoining property. The city was held liable, following the rule stated by Bishop in his work on Noncontraet Law, paragraph 39: “When the injury proceeds from two causes operating together, the party putting in motion one of them is liable the same as though it was the sole cause. This is one form of a universal principle in the law that he who contributes to a wrong, either civil or criminal, is answerable as doer. And it is immaterial to this proposition whether that to which he contributes is the volition of a responsible person, or of an irresponsible one, or whether it is a mere inanimate force, or a force in nature, or a disease.” The same principle had been theretofore decided by the territorial court to fix liability upon a railroad company for its negligence in constructing a spur-track, which, coupled with the negligence of the conductor of one of its trains, contributed to an accident to an employee in the service of the company; the court holding that, if the railroad company was negligent in constructing the track, and such negligence contributed to the injury, then such negligence, coupled with the negligence of the conductor, was the proximate cause of such injury, and the company was liable. Gila Valley, Globe & N. Ry. Co. v. Lyon, 9 Ariz. 218, 80 Pac. 337. Upon a re-examination of the authorities, we see no reason to doubt the correctness of these decisions. See Village of Carterville v. Cook, 129 Ill. 152, 16 Am. St. Rep. 248, and notes, 4 L. R. A. 721, 22 N. E. 14; Louisville Home Tel. Co. v. Gasper, 123 Ky. 1057, 9 L. R. A. (N. S.) 548, and note, 93 S. W. 1057; Pastene v. Adams, 49 Cal. 87; Gonzales v. City of Galveston, 84 Tex. 3, 31 Am. St. Rep. 17, 19 S. W. 284; Lane v. Atlantic Works, 111 Mass. 136; Poole v. Tilford, 99 Or. 585, 195 Pac. 1114; Colorado Mort. & Inv. Co. v. Rees, 21 Colo. 435, 42 Pac. 42; Christianson v. Chicago, St. P., M. & O. Ry. Co., 67 Minn. 94, 69 N. W. 640; Pullman’s Palace Car Co. v. Laack, 143 Ill. 242, 18 L. R. A. 215, 32 N. E. 285; Street’s Foundations of Legal Liability, vol. 1, c. 8. Speaking of intervening and concurrent causes, the authors of Shearman & Eedfield on Negligence, sixth edition, in section 31, say: “The causal connection (that is to say, between the first negligence and the injury) must be actually broken, the sequence interrupted, in order to relieve the defendant from responsibility. The mere fact that another person concurs or co-operates in producing the injury or contributes thereto in any degree, whether large or small, is of no importance. If the injuries caused by the concurrent acts of two persons are plainly separable, so that the damage caused by each can be distinguished, each would be liable only for the damage which he causes; but, if this is not the ease, all the persons who contribute to the injury by their negligence are liable, jointly and severally, for the whole damage. It is immaterial how many others have been in fault, if the defendant’s act was an efficient cause of the injury.” The teaching of these authorities is that one is liable to respond in damages for the proximate results of his negligent act. The proximate cause of an event is that which, in a natural and continuous sequence unbroken by any new, independent cause, produces the event, and without which the event would not have occurred. This connection is broken when a new or subsequent cause intervenes so as to become the sole factor producing the injurious result to the exclusion of the negligence of the first wrongdoer in its operation as an efficient factor therein, but it is not broken by the addition of another factor or cause which merely contributes to the result without superseding the efficient operation of the first cause. It is therefore no defense in this case that but for the negligent act of the stranger in driving an automobile across plaintiff’s path the injury ■would not have occurred, because it appears as well that but for the negligent act of the city the injury would not have occurred. The negligent cause attributable to the appellant being operative in the degree and to the extent mentioned, the appellant is not to be relieved from liability for the consequent injury by the happening of an event due to accident or the mere negligence of a third party which merely aids in producing the injury without superseding the operation of the original wrongdoing as an efficient and operative cause of such result. We believe it would be an unwarranted finding of a court or jury to say that the maintenance or toleration of such a patently dangerous condition as this deep ditch in a traveled public highway did not in the circumstances, as an incontestable fact, bring about and partly produce the injury in question. Although the happening of the precise event by which plaintiff was thrown into the ditch could not have been foreseen, the appellant — in the language of the authorities expressing the implication arising from the legal duty to use care — was bound to know that some such injury was likely to occur and to guard against the event which did happen. Certainly the probability of some such occurrence would at once have suggested itself to any person who had thought about the subject at all. As the appellant was negligent in permitting this ditch to be and remain in the public highway, and as such negligence was unquestionably an efficient, operative, and contributing cause at the time of the injury to produce the result, and as this result followed from appellant’s negligence in a natural and continuous sequence without its being shown that an independent cause intervened to break and supersede tbe effect of tbe original wrongful act of tbe appellant, it is liable for tbe injuries sustained by tbe appellee. Tbe judgment is therefore affirmed. BOSS, C. J., and McALISTEB, J., concur.

McALISTER, J. The commission of the city of Phoenix passed a resolution of intention on May 26, 1921, to pave a portion of Culver Street in that city, to wit, the section between the east line of Central Avenue and the west line of Twelfth Street, and immediately thereafter gave the required notice of its contemplated action. According to the resolution the total frontage on this portion of Culver Street was 9,152.57 feet, but in the opinion of the commission that improvement was of more than local or ordinary public benefit, so it created an adjacent assessment district containing 5,542 feet, in order that it might bear a part of the costs and expenses of the work, which made a total frontage of 14,694.57 feet. A protest against the proposed improvement, signed by “owners of property fronting on East Culver Street, and in the assessment district adjacent thereto,” representing on its face 7,909.62 feet, was filed in the office of the city clerk of Phoenix on June 20, 1921, but on the same day written withdrawals from it to the extent of 758.78 feet were also filed, and on June 29th following the city commission, finding that the protest after deducting the withdrawals represented less than one-half of the frontage involved, to wit, 7,150.84 feet or 48.66 per cent ordered that the improvement proceed. Thereupon, or after some other proceedings immaterial to the issue involved, appellant, Hattie L. Mosher, filed a petition in the superior court of Maricopa county, praying for the issuance of a writ of certiorari directed to the city of Phoenix and the commission of the city of Phoenix, ordering the return to that court of all records and proceedings relative to the proposed paving of Culver Street. An order to show cause why the writ should not be granted was issued, and a full hearing thereafter had, which resulted in an order quashing the writ. It is from this order that the petitioner appeals. It is conceded that if the withdrawals were not properly allowed the protest was sufficient to prevent further action by the commission, since, as filed, it contained a majority of the property fronting on the improvement and in the assessment district; hence the only question presented is whether signers of a protest may withdraw from it during the time allowed owners to object, and be counted in favor of the improvement. It is the contention of appellant that they cannot, because a proper protest, when filed, deprives the commission of jurisdiction to proceed further in the matter, while appellee contends that they can, since the jurisdiction of the commission depends entirely upon the action of the property owners themselves, as that is disclosed from the records in the office of the city clerk at the close of the protest period. The correctness of these contentions must be determined by paragraph 1957, Eevised Statutes of Arizona of 1913 (Civ. Code), and amendments thereto as they appear in chapter 52, Session Laws of 1917, under which this part of the proceedings was had. It reads, so far as pertinent to this inquiry, as follows: “1957. The owners of a majority of the frontage of the property fronting on said proposed improvement, or when the cost of said improvement has been made chargeable upon a district, then the owners of a majority of the frontage of property fronting upon the proposed improvement, together with the owners of a majority of the frontage of property fronting upon the stréets or parts of streets contained within the limits of said assessment district, may make a written protest against said improvement within fifteen days after the date of the last publication of the resolution of intention, or within fifteen days after the completion of the posting of notices of the proposed improvement by the superintendent of streets if such date be subsequent to the day of said last publication. Such protest shall be filed with the city clerk or other officer exercising like official functions, who shall indorse thereon the date of their reception by him, and such objections so delivered and indorsed shall be a bar to any further proceedings in relation to the making of said improvement for a period of six months from the date such objections are filed unless the owners of one-half or more of the frontage as aforesaid shall meanwhile petition for the said work to be done. . . . When no protests against such work or no objections as to the extent of the proposed assessment district have been filed within the time above specified, or when a protest shall have been filed and it is found by said legislative body to be insufficient, or when the objections to the extent of the proposed district shall have been heard, and shall have been denied, immediately thereupon the said legislative body shall have jurisdiction to order the proposed improvements. Upon acquiring jurisdiction, the said legislative body may by resolution order the improvement described in the resolution of intention to be done.” The commission of the city of Phoenix is invested by a preceding section with jurisdiction to order paved or otherwise improved, in the manner provided, its streets, and whenever in its judgment the public interest or convenience requires that an improvement of this character be made, it is authorized and empowered to initiate proceedings looking to that end, and, if not thereafter prevented by the protest of the required percentage of the property owners concerned, to order the work done. Such an undertaking is carried out by the commission’s first passing a resolution of intention in which the work to be done is described, then giving the required notice of its intended action, and, after the expiration of the prescribed fifteen days, directing that the other necessary steps be taken, if there be not filed within that time a protest signed by the owners of a majority of the property fronting on the improvement proposed, and in the adjacent assessment district if there be one; but if a protest of this kind be filed, “such objections so delivered and indorsed shall be a bar to any further proceedings in relation to the making of said improvement for a period of six months,” unless in the meanwhile the owners of one-half or more of the frontage, involved petition that the work be done, and there is no claim that such a petition was filed in this instance. The mere delivery of such objections to the city clerk within the prescribed fifteen days and the indorsement thereon by him of the date he received them constitute under this statute a complete bar to any further work under that resolution of intention, except in the instance mentioned, and to say that their delivery and indorsement shall be a bar to further proceedings for six months is to state as effectively as language will permit that the filing of the protest becomes an insurmountable obstacle to further action during that time. Necessarily then a sufficient protest operates as a bar from the day it is filed, and, inasmuch as its delivery and indorsement alone accomplish the purpose of its signers, its condition, when filed, must remain unchanged and determine its sufficiency. The filing of such a protest being a bar to further action “in relation to the making of said improvement,” it follows that jurisdiction to order the work done, or the possibility of acquiring it, is also defeated, because the statute does not confer on any tribunal the right and power to order done a thing which it in express language prohibits from being done. Appellant’s contention, therefore, that a sufficient protest when filed cannot be changed or modified by withdrawals from it is sustained by the statute, and this is true whether the protests be filed together or separately, for the moment the owners of a majority of the frontage file objections to the improvement that entire proceeding, except it be the right to ascertain after the close of the fifteen-day period that the protest is sufficient, is foreclosed. The protest in this case being admittedly sufficient when filed on June 20, 1921, the withdrawal from it after that time of a frontage of 758.78 feet should not have been allowed. The owners of this property, together with the remainder of the protestants, by filing their objections defeated any possibility of complete and full jurisdiction’s attaching, and no act of theirs during the six months following, after they had aided in the accomplishment of this result, would enable them to be numbered among those favoring the improvement, unless it be that during this time they join with a number of other owners of frontage in petitioning that the improvement be made; it being required of course that the total signers on such a petition own one-half or more of the frontage involved. It is the contention of appellee that the legislature conferred upon the property owners, who under the law must pay for the improvement, the right and power to say whether it should be made, and that consequently the statute should be so construed as to allow them the full period of protest in which to decide if they want it. If protests against it may bep filed up to the end of this time, there is, it is contended, ño reason why those who have protested may not change their minds, withdraw therefrom within the time allowed for objecting, and be counted as favoring the improvement, though it is not claimed that the statute specifically authorizes such withdrawals. In substantiation of this position reliance is had principally on two cases — City of Sedalia ex rel. v. Montgomery et al., 227 Mo. 1, 88 S. W. 1014, 127 S. W. 50, and Hawley v. City of Butte, 53 Mont. 411, 164 Pac. 305. In neither of these states, however, is the law relative to the power of the city council to improve the streets of the city similar to that of this state, but in both the jurisdiction conferred on that body is merely conditional, that is, held in abeyance or suspended until the end of the protest period, irrespective of whether the protest is sufficient or in sufficient at the time of filing, when it is determined whether it shall attach. And, they hold, if the city ■council had been given full jurisdiction to order the improvement subject only to annulment by the owners of a majority of the frontage, the filing by the latter of a sufficient protest would defeat it, and it could not be reconferred by withdrawals from the protest. Where, however, jurisdiction is in abeyance until the close of the protest period, there is none to annul previous to that time, and property owners are free either to oppose or favor the improvement. If they have opposed it by protesting, they may favor it by withdrawing from the protest, for the general doctrine is that a protestant may withdraw from the protest and be counted in favor of the improvement up to the end of the protest period. Littell et al. v. Board of Supervisors of Vermillion County, 198 Ill. 205, 65 N. E. 78; Armstrong et al. v. Ogden City et al., 12 Utah, 476, 43 Pac. 119; Thorn v. Silver, 174 Ind. 504, 89 N. E. 943, 92 N. E. 161; Rodgers v. City of Ottawa, 83 Kan. 176, 109 Pac. 765, and cases cited above. In paragraph 1957, above, however, jurisdiction to order the improvement is held in ‘abeyance until the end of the protest period only when no protest at all, or an insufficient one, has been filed, while from the time a protest signed by the owners of a majority of the frontage is delivered to the city clerk and indorsed by him with the hour he received it the entire proceeding is barred for a period of six months, unless a proper petition is filed within that time, and necessarily there can be no jurisdiction to do what the statute bars. The judgment is reversed and the case remanded, with directions to enter judgment for appellant. BOSS, O. J., and FLANIGAN, J., concur.

FLANIGAN, J. This is an action in replevin brought by appellee to obtain possession of nine bales of cotton in the hands of appellant, Scottsdale Ginning Company. The complaint alleges that the cotton was grown on appellee’s farm in Maricopa county by his lessee one Middleton and the sublessees of said Middleton, and that the cotton was delivered to appellant at Scottsdale in said county to be ginned while $1,300 of the agreed rental was due and unpaid. The appellant refusing to give possession of the cotton to appellee upon his demand therefor, this action was brought and writ of replevin issued, under which five of the bales were taken from appellant and delivered to appellee. For answer the ginning company demurred to the complaint on the ground that it did not state a cause of action and upon the further ground that, the tenant, Middleton, not having been joined as a party defendant, there was a defect of parties, and answered also by a general denial of the allegations of the complaint. The demurrers were overruled, trial was had, and judgment went for appellee, awarding him the possession of the cotton by virtue of his landlord’s lien thereon. It is not questioned that a landlord’s lien esists on the cotton for the unpaid rental, but it is contended that this lien is enforceable only in an action to foreclose the same, to which action the tenant is a necessary party defendant, and that, even if replevin is maintainable, the tenant was a necessary party to snch action. The landlord’s lien statute reads as follows: “Every landlord shall have a lien on all the property of his tenant not exempt by law, placed upon or used on the leased premises until his rent shall be paid, and such landlord, his agent or attorney, may seize, for rent, any personal property of his tenant that may be found on the premises or in the county where such tenant shall reside, but no property of any other person, although the same may be found on the premises, shall be liable for seizure for rent due from such tenant, and in case of failure of the tenant to allow the landlord, his agent or attorney to take possession of such property for the payment of rent, said landlord shall have the right to reduce such property to his possession by action against the tenant to recover the ■ possession of the same, and may hold or sell the same for the purpose of paying said rent unless said rent shall be paid before sale, and every landlord shall have a lien upon the crops grown or growing upon the leased premises for rent thereof, whether the same is payable wholly or in part in money or specific articles of property or products of the premises or labor, and also for the faithful performance of the terms of the lease, and such lien shall continue for a period of six months after the expiration of the term for which the premises were leased, and, in all cases where the demised premises shall be let or lease assigned, the landlord shall have the same right to enforce his lien against the sublessee or assignee as he has against the tenant to whom the premises were leased.” Section 3671, Rev. Stats. 1913. This paragraph was first enacted as section 4 of Act “No. 56, An act relating to landlords and tenants,” adopted March 21, 1895, by the Territorial Legislature. The entire act was brought forward into the revision of 1901, appearing therein as chapter II of title 29, paragraphs 2692 to 2695 thereof. In the revision of 1913 these paragraphs (with some changes not affecting the construction) appear, respectively, as follows: 2692 as 1551, 2693 as 1552, 2694 as 4714, and 2695 as the one now under consideration, paragraph 3671. A review of the legislation of the states which have enacted statutes on the subject matter of landlord’s liens or in regulation of the common-law right of distress, discloses a great lack of uniformity therein. See résumé thereof in Jones on Liens, 3d ed., § 602 et seq. The learned author remarks in the work just cited (section 1049): “Much of the legislation on the subject of liens has been fragmentary, uncertain and apparently experimental, and it is to be hoped and expected that more comprehensive and better considered legislation will follow.” Our statute exhibits no departure from these general characteristics of such legislation. That part of the paragraph which confers a lien on the tenant’s crops undoubtedly came to the legislative attention from the statutes of Illinois. The remainder of the paragraph does not appear to have ever existed in its precise form in the statutes of other states. What the legislature did was to combine in one statute these separate lien provisions on different classes of property. So much is said to point out that the construction of the statute as a composite presents a new question in decision. It will be seen that, while the landlord is authorized by the statute to seize for rent certain personal property of his tenant therein mentioned, and if the tenant fails to allow the landlord to take possession to reduce the same to possession by action and to hold or sell the same for the purpose of paying the rent, no such authority is in direct or express terms conferred for the enforcement of the lien given upon the crops grown or growing upon the premises. The first question which suggests itself is whether a proper construction of the statute leads to the conclusion that the legislature intended that the specific and express remedies provided for the one case should apply also to the other. A construction applying remedies mentioned in the statute itself would, in a very true sense, make the statute a more certain, definite and complete remedial enactment by avoiding the necessity of resorting to implication to ascertain the remedies to be employed to enforce the lien on the crops. Our inclination to such an interpretation cannot be indulged, however, to do violence to the plain terms of the statute. For it is obvious that the omission to specifically authorize the enforcement of the lien on the crops by the same methods as are authorized to enforce the lien on the other property must be taken to point to a legislative purpose to require the use of different remedies for the two cases — an interpretation reached by the application of the principle “E'xpressio unius est exclusio alterius.” As will appear in the sequel, the remedies given by implication to enforce the lien on the crops amount substantially to those expressly given to enforce the lien first spoken of, so that it results that the express remedies given in the one case are the practical equivalent of the remedies implied in the other. This may be supposed to supply an argument that the legislative intent was probably to make the express remedies applicable to both cases. But as against this view, there is the insuperable difficulty that the express remedies given to enforce the lien on the property not exempt by law, placed upon or used on the leased premises, being- the right to seize the personal property of the tenant that may be found on the premises, or in the county where the tenant shall reside, and to reduce such property to possession by action and to hold or sell the same, are limited by the statute to an enforcement solely of the tenant’s obligation to pay rent. The lien upon the crops, on the other hand, is given, not only to secure the payment of the rent, but in addition the faithful performance of the terms of the lease. The express rights of possession, retention and sale for the purpose of securing the payment of rent can, by no rule of construction of which we are aware, be enlarged so as to extend such remedies to the enforcement of the obligations secured by the lien on the crops. In any determination of the remedies given by law to the landlord to enforce the lien on the crops, it is to be borne in mind that the statute is a remedial one, and must be construed so liberally as to effectuate its palpable purpose, and that the purpose of the statute was manifestly to afford the landlord protection commensurate with the obligation assumed by his tenant. Murphey v. Brown, 12 Ariz. 268, 100 Pac. 801; Jones on Liens, 3d ed., vol. 1, § 540. It being plain that the statute itself provides no express remedy for the enforcement of the lien upon the crops, it is too well settled to require extended citation of authority that appropriate remedies are to be implied. See Sutherland on Statutory Construction, 2d ed., § 507. Notwithstanding some authority apparently to the contrary,, presently to be referred to, it would seem that by conferring the right to a lien at all, and prescribing no other remedy, there was also conferred the right to make the lien effective by reducing the property to possession. In Wetsel v. Mayers, 91 Ill. 497, under a statute of Illinois which provided that: “Every landlord shall have a lien upon the crops grown or growing upon the demised premises for the rent thereof, whether the same is payable wholly or in part in money or specific articles of property or products of the premises, or labor, and also for the faithful performance of the terms of the lease. Such lien shall continue for the period of six months after the expiration of the term for which the premises were demised.” ■ — it was held that the landlord had a prior lien upon the corn raised on the leased premises, by virtue of which he was entitled to possession thereof, which right he could enforce by action in replevin. It will be noted that this statutory language is identical with the language of our statute so far as it concerns the lien upon the crops. The same ruling under the same •statute was made in Hunter v. Whitfield, 89 Ill. 229. In Dale et al. v. Taylor, 63 Kan. 674, 66 Pac. 993, it was decided that the existence of a statutory landlord’s lien of necessity vests in the landlord a right of possession for its enforcement, and, inasmuch as the lien extends to the whole crop, a corresponding right of possession of the whole crop follows. Albers v. Turley, 10 Colo. App. 450, 51 Pac. 530, is a decision to the effect that the landlord’s lien gives a right of possession enforceable by replevin as against the purchaser of the property on the premises from the tenant, and that the landlord is entitled to retain such possession until the lien is satisfied. See, also, Edwards v. Cottrell, 43 Iowa, 194; Brody v. Cohen, 106 Iowa, 309, 76 N. W. 682; La Grande Nat. Bank v. Oliver, 84 Or. 582, 165 Pac. 682. An inspection of the leading authorities, which hold that no such right of possession exists to preserve or enforce the lien, discloses that in such cases some other method of enforcing the lien was given by statute. For example, in Travers v. Cook, 42 Ill. App. 580, the right of possession was denied, there having been no levy of a distress warrant; it being held essential to fix the lien that snch warrant he levied. In Watt v. Scofield, 76 Ill. 261, the language of the concurring opinion of Mr. Justice McALISTER, later referred to with approval in the case of Finney v. Harding, 136 Ill. 573, 12 L. R. A. 605, 27 N. E. 289, is that— “the landlord has not, by virtue of the lien alone, and without levy of a distress warrant, a right of possession. He could not take possession of the tenant’s crops at any time he chose, before the rent was due, nor could he, after it was due, by virtue of the lien alone.” The reference to the necessity of the levy of the distress warrant sufficiently indicates that such was the appropriate remedy provided by statute. In the case of Scaife & Co. v. Stovall, 67 Ala. 237, the question decided was whether a landlord having a lien for rent and advances, or either, could enforce it by attachment on the crops in the possession of a purchaser from the tenant, after its removal from the rented premises, when valuable consideration was paid by the purchaser without notice of the lien. While it was decided that after such sale the lien could not be enforced by attachment, the decision points out that the statute authorized the lien to be enforced by an attachment proceeding before the rights of a bona fide purchaser intervened. In the course of the opinion it is said: “For the removal, or the intended removal of the crop, furnishes a cause for the attachment of it, before the claims, which are liens, fall due. The reason must be that the removal endangers the lien, and one of the perils operating its defeat, was, it is fair to presume, that the rights of a bona fide purchaser might intervene in consequence of the removal.” ■ From this language it may be inferred that, if the landlord had been given no statutory right to enforce Ms lien by attachment, the law would by implication invest him with a right of possession in order to preserve the lien, at least under circumstances where the obligation it was created to secure might otherwise be defeated. The case of Wingard v. Banning, 39 Cal. 543, was an action to enforce a lien on machinery, brought by a carrier for his freight charges against a third party in adverse possession of the property. The carrier had theretofore procured an attachment, in which he had made the affidavit required by the attachment statute in that state, which requires (as does ours) that the affidavit show that the debt sued for is not secured by any lien or mortgage. It was held that if the carrier ever had a lien he lost it by suing out the attachment and levying on the machinery, the court in the course of the opinion saying: “If the defendant intended to rely upon his lien, and if the property was wrongfully taken from his custody by Mitchell, the remedy was by an action against him, either to recover the possession or for a wrongful conversion, in which the measure of damages would have been the amount of the lien, not exceeding the value of the property. Instead of resorting to this, which was the only appropriate remedy, the defendant not only made an affidavit to the effect that he had no lien, but he instructed the sheriff to seize the property and hold it as a security for his demand. In doing so he clearly abandoned his lien, and elected to rely on Ms attachment as a security.” We think the foregoing authorities establish the proposition that the lien upon the crop given by our statute, no other remedy being authorized to enforce it, must on common-law principles be held to confer upon the landlord the right and remedy to take possession of such crop in order to enforce the payment of the rent due, and to answer for the damages sustained by reason of the failure of the tenant or his sublessee or assignee to faithfully perform the terms of the lease. There is also and just as certainly an implication from this right of possession that the property may be retained by the landlord for the purpose of preserving and enforcing his lien. Appellant contends that, assuming the landlord to have the right to reduce the property to possession, such right must be asserted in an action in equity to foreclose the lien to which the tenant is a necessary party. This undoubtedly would be true were the appellee suing to foreclose his landlord’s lien. The express statutory authority does not warrant a sale of the property unless by virtue of a judgment awarding that remedy in an adversary proceeding. No method for the exercise of the right being specified, the authority conferred is plainly not one which the landlord may exercise summarily or by a procedure of his own devising. Likewise, the enforcement of the lien on the crops by sale requires that suit to foreclose be brought by the landlord against proper parties, in accordance with the established practice in such proceedings. But if the authorities cited establish anything, it is that the landlord is entitled to the possession of the property to secure the performance of the obligations assumed by the- lessee after the breach thereof, in order to preserve and protect his lien. That such right is properly asserted in an action of replevin cannot be doubted, and the authorities are unanimous that replevin, being essentially an action for possession, must be brought against the one in possession of the property. Van Gorder v. Smith, 99 Ind. 404; Griffin v. Lancaster, 59 Miss. 340; Read v. Brayton, 143 N. Y. 342, 38 N. E. 261; Moore v. Brady, 125 N. C. 35, 34 S. E. 72; Glass v. Basin & Bay State Min. Co., 31 Mont. 21, 77 Pac. 302; Heidiman-Benoist Saddlery Co. v. Schott, 59 Neb. 20, 80 N. W. 47; Gilbert v. Buffalo Bill’s Wild West Co., 70 Ill. App. 326; De Lore v. Smith, 67 Or. 304, 49 L. R. A. (N. S.) 555, 132 Pac. 521, 136 Pac. 13; Home Payment Jewelry Co. v. Smith, 24 Cal. App. 486, 141 Pac. 933; Cobbey on Replevin, 2d ed., § 432; Wells on Replevin, 2d ed., §§ 134, 634. And it is also well established that in an action in replevin one claiming an interest in the property, but neither in actual nor constructive possession thereof, is not a necessary party defendant. Hazlett v. Hamilton Storage & Warehouse Co., 47 Misc. Rep. 660, 94 N. Y. Supp. 580; Home Payment Jewelry Co. v. Smith, supra; Jenkins v. City of Ontario, 44 Or. 72, 102 Am. St. Rep. 625, 74 Pac. 466; De Lore v. Smith, supra. The points finally relied upon for reversal are based upon appellant’s interpretations of paragraph 5190 (Sales Act) and paragraph 5328 (Warehouses), Civil Code, Revised Statutes of 1913. These paragraphs read: “5190. If goods are delivered to a bailee by the owner or by a person whose act in conveying the title to them to a purchaser in good faith for value would bind the owner and a negotiable document of title is issued for them they cannot thereafter, while in the possession of such bailee, be attached by garnishment or otherwise or be levied upon under an execution unless the document be first surrendered to the bailee or its negotiation enjoined. The bailee shall in no case be compelled to deliver up the actual possession of the goods until the document is surrendered to him or impounded by the court.” “5328. All checks and receipts given by any person operating any warehouse for any produce or commodity stored or deposited are hereby declared negotiable, and may be transferred by indorsement of the party to whose order such check or receipt was given or issued, and such indorsement shall be deemed a valid transfer of the commodity represented by such receipt, and may be made either in blank or to the order of another.” Paragraph 5190 has no application to the case, because it does not appear that the delivery of the cotton to appellant was made by the lessees as owners thereof holding the property free from lien. The purpose of this statute was not to displace any existing lien by such delivery, but to provide protection to the. holders of negotiable documents of title against subsequent involuntary alienations of the property by attachment, garnishment, execution or the like proceedings, divesting or impairing the rights of ownership represented by the paper indicia of title. The purpose of paragraph 5328 is to make the checks and receipts mentioned negotiable, and thus facilitate the transfer of the goods represented thereby free from equities or defenses affecting the instruments evidencing the title in accordance with the law of negotiable instruments. The statute does not operate to create or better rights of ownership to the goods themselves. The judgment is affirmed. ROSS, O. J., and McALISTER, J., concur.

FLANIGAN, J. (After Stating the Facts as Above.) — The decision of the case calls for a construction of Act Cong. April 22, 1908, 35 Stat. 65, c. 149, commonly known as the Employers’ Liability Act (U. S. Comp. Stats., §§ 8657-8665; 8 Fed. Stats. Ann., pp. 1339-1378), to determine whether the four minor children may properly be said to be “next of kin dependent upon such employee,” within the meaning of the act, of which the part pertinent to this case is section 1 (section 8657), reading as follows: “Every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to Ms or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of Mn dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” In Michigan Central R. Co. v. Vreeland, 227 U. S. 59, Ann. Cas. 1914C, 176, 57 L. Ed. 417, 33 Sup. Ct. Rep. 192 (see, also, Rose’s U. S. Notes), which was an action brought by the administrator for the benefit of the surviving widow of decedent, the court, speaking of the nature of the liability under this act, said: “The obvious purpose of Congress was to save a right of action to certain relatives dependent upon an employee wrongfully injured, for the loss and damage resulting to them financially by reason of the wrongful death. . . . This cause of action is independent of any cause of action which the decedent had, and includes no damages which he might have recovered for his injury if he had survived. It is one beyond that which the decedent had — one proceeding upon altogether different principles. It is a liability for the loss and damage sustained by relatives dependent upon the decedent. It is therefore a liability for the pecuniary damage resulting to them and for that only. ’ ’ American R. Co. of Porto Rico v. Didricksen, 227 U. S. 145, 57 L. Ed. 456, 33 Sup. Ct. Rep. 224 (see, also, Rose’s U. S. Notes), was an action brought by the administrator for the benefit of the parents,, and the court said: “But the act, in case of the death of such an employee from his injury, creates a new and distinct right of action for the benefit of the dependent relatives named in the statute. The damages recoverable are limited to such, loss as results to them because they have been deprived of a reasonable expectation of pecuniary benefits by the wrongful death of the injured employee. The damage is limited strictly to the financial loss thus sustained.” To the same effect are the decisions in Gulf, Colo. & S. F. R. Co. v. McGinnis, 228 U. S. 173, 57 L. Ed. 785, 33 Sup. Ct. Rep. 426, and Garrett v. Louisville, N. R. Co., 235 U. S. 308, 59 L. Ed. 242, 35 Sup. Ct. Rep. 32 (see, also, Rose’s U. S. Notes). From these decisions it appears that— The damages allowed “are such as flow from the deprivation of the pecuniary benefits which the beneficiaries might have reasonably received if the deceased had not died from his injuries. The pecuniary loss is not dependent upon any legal liability of the injured person to the beneficiary. That is not the sole test. There must, however, appear some reasonable expectation of pecuniary assistance or support of which they have been deprived.” Michigan Cent. R. Co. v. Vreeland, supra. See, also, Dooley v. Seaboard Air Line R. Co., 163 N. C. 454, L. R. A. 1916E, 185, 79 S. E. 970, Pittsburgh, C., C. & St. L. Ry. Co. v. Collard’s Admr., 170 Ky. 239, L. R. A. 1918E, 273, 185 S. W. 1108, and Moffett v. B. & O. R. Co., 220 Fed. 39, 135 C. C. A. 607. The construction of the act in the cases cited leaves no room to doubt that the statute was enacted to provide for the making of compensation by way of damages to the members of the classes mentioned for the pecuniary loss they may suffer by the wrongful death of the employee, and that such damages are measured by the benefits of which they have been deprived, being- such pecuniary assistance or support as they might reasonably have expected to receive had the employee lived. And it would simply be an attempt to demonstrate what is obvious to argue the patent proposition that such, expectation entertained by certain of the persons in the classes mentioned as surviving parents or collateral heirs, husband or adult children, may be founded upon a merely moral obligation resting upon the decedent to render such aid, as distinguished from a legal duty so to do. See Michigan Cent. R. Co. v. Vreeland, Dooley v. Seaboard Air Line R. Co. supra, and Seaboard Air Line v. Kenney, 240 U. S. 489, 60 L. Ed. 762, 36 Sup. Ct. Rep. 458 (see, also, Rose’s U. S. Notes). So, if in this case it appears that at the time of the decedent’s death there existed the required relationship with dependency on the part of the surviving relatives, and a reasonable expectation that the decedent would fulfill the purely moral obligations arising out of such conditions to support his kinsfolk, recovery may be had accordingly. No question is made as to the existence of the required relationship of the minor children named, but the controversy arises as to the meaning of the term “dependent,” it being asserted by appellant that the minor children were not in fact such dependents under the terms of the act of Congress, and strenuously insisted: “That within the purview of the act such condition of dependency is not established by the showing of a voluntary unexecuted oral promise, prompted by fraternal instincts on the part of the deceased, to make future contributions to the extent of his ability towards the education and support of such children, even though such promise was followed by occasional gifts or contributions.’,’ However varying may be the connotations of the term “dependent” in different relations of contract or status, we think that for the purpose of this case it is sufficient to point out that there is denoted in the legal and customary use of the term the idea of the sustaining or support of one person by another, or the reliance by one upon another either wholly or partially for support. It has been said that, generally speaking, a dependent is one who is sustained by another, or relies for support upon the aid of another. Murphy v. Nowak, 223 Ill. 301, 7 L. R. A. (N. S.) 393, 79 N. E. 112. In Keller v. Industrial Commission, 291 Ill. 314, 126 N. E. 162, a dependent is defined as follows: ■ “In law, a ‘dependent’ is one who is sustained by another or relies for support upon the aid of another; who looks to another for support and relies upon another for reasonable necessaries consistent with the dependent’s position in life.” It seems to be settled that, under compensatory and beneficiary provisions of law or contract in favor of dependents, generally speaking, it is not contemplated or required thereby that an entire dependency exist, but it will be sufficient if the need is partial, if it is a substantial need. McCarthy v. New England Order of Protection, 153 Mass. 314, 25 Am. St. Rep. 637, 11 L. R. A. 144, 26 N. E. 866. For cases under the act in question, see Pittsburgh, C., C. & St. L. Ry. Co. v. Collard’s Admr., supra; Dooley v. Seaboard Air Line R. Co., supra; Moffett v. B. & O. R. Co., supra. See, also, Bruckshaw v. Chicago, R. I. & P. Co., 173 Iowa, 207, 155 N. W. 273, and Richelieu v. Union Pac. R. Co., 97 Neb. 360, 149 N. W. 772, in both of which cases recovery was allowed under the Employers’ Liability Act upon a showing of partial dependency; in the Richelieu case, in behalf of a sister, and in the Bruckshaw case in behalf of a sister and a niece. The meaning of the term “dependent” as it is used in the Employers’ Liability Act was very fully considered in Southern R. Co. v. Vessell, 192 Ala. 440, Ann. Cas. 1917D, 892, 68 South. 336, which was an action brought under the Employers’ Liability Act for the benefit of a sister of the decedent. The court in that case followed the decision in Bortle v. Northern Pac. R. Co., 60 Wash. 554, Ann. Cas. 1912B, 732, 111 Pac. 789, which construed a statute of the state of Washington, and applied the construction made in the Bortle case to the federal act. Although the decision was adverse to the claim made on behalf of the sister, we think the language quoted with approval from Duval v. Hunt, 34 Fla. 85, 15 South. 876, quite clearly states the rule to be followed: “We think that, when the suit is brought by a person who bases his right to recover upon the fact that he is a dependent upon the deceased for support, then he must show, regardless of any ties of relationship or strict legal right to such support, that he or she was, _ either from the disability of age, or nonage, physical or mental incapacity, coupled with the lack of property means, dependent in fact upon the deceased for support. There must be, when adults claim such dependence, an actual inability to support themselves, and an actual dependence upon someone else for support, coupled with a reasonable expectation of support, or with some reasonable claim to support from the deceased.” The circumstances must show some disability 'or incapacity of the character referred to, from which arises a need for support on the part of the next of kin, with a recognition of that need by the deceased, to the extent that there existed a reasonable expectation of the derivation 'of pecuniary benefits from the continuance of the life of the decedent. In fine, the question in this case is: Was there a necessitous want on the part of these minor children for support, and was this want recognized by the decedent either by actual financial contributions or by fixed purpose to render such contributions, so that it could be said there was a reasonable expectation that such assistance would have been given had he lived? In the application of this rule to the case here we may remark that the facts shown distinguish it broadly from the Bortle and Vessell cases, and in some respects from all other cases that have been cited to us or that we have found. The decedent, very shortly after recognizing the actual need of his minor brothers and sisters for substantial aid and support, and after promising to assume the responsibility of contributing to such support, came to his death within the sh'ort space of sixty-four days after taking up a lucrative employment. In addition to this, at the family conference held át the time of the mother’s funeral the promise of the deceased was made in effect to those, who, like himself, were under an obligation to take care of these children, and, from the moral standpoint, at least, the other brothers and sisters, performing the duties they had assumed under the dictates of fraternal affection, were entitled to rely upon decedent’s help in accordance with his undertaking. It is not to be doubted that there existed a condition of necessitous want on the part of such minors. This need was recognized by the decedent and the other members of the family, who took upon themselves the obligation of providing therefor. Decedent did in fact begin to fulfill his promise by making actual contributions in money. That such contributions were not made regularly or punctually at stated times does not seem to us to be of controlling importance. If a longer time had elapsed before his death, during which remittances had been made by him at irregular intervals, or not at all, or, on the other hand, he had fulfilled his promise, it could, of course, be more definitely known in what measure he intended to respond to the obligations of his fraternal relationship. But, as the case had necessarily to be decided on the facts arising during the short time the decedent lived, it appears to us that the circumstances under which the promise was given, the contributions actually .made soon afterwards, and decedent’s expressions of purpose to continue them might well justify a jury in finding that in all reasonable probability the deceased would continue to respond to the moral obligations he had recognized and assumed. It is thus seen that we cannot accede to the appellant’s contention that a mere unexecuted oral promise, not confirmed or carried out by actual contribution, is without value as showing dependency within the meaning of the act. Bearing in mind that the purpose of the statute, under the authorities cited, is to provide for compensation by the wrongdoer to those who had a reasonable expectation of pecuniary benefit in the continuance of the life of the deceased, and that a condition of dependency may be inferred from a necessitous want on the part of the next of kin, with a recognition of that want on . the part of the employee and his purpose to contribute substantially to relieve the need, we cannot hold that the jury was not warranted in finding that a pecuniary loss was actually suffered by the minor heirs, including those to whom no contributions had actually been made. In appellant’s reply brief exception is taken to the statement in the brief of appellee that the minor children upon the death of the mother were left without estate or means of support, wherefrom, with other premises, appellee deduced the conclusion that the evidence was legally sufficient to justify the finding of dependency. Appellant asserts that no evidence was introduced to the effect that the four minors were without estate. While the assignments of error raise the broad question of the sufficiency of the evidence to establish dependency, no specific point was made nor argument offered in connection therewith that the evidence was insufficient for lack of a showing in the respect mentioned. But, were the matter open for determination under the assignments of error, we should not be inclined to hold that the evidence was insufficient to establish that the minor children were in fact without means of support because they had property of their own. The evidence is consistent only with the conclusion that these children were without means excepting such as might be supplied to them by their elder brothers and sisters, who actually took this duty upon themselves. In this state of the record we think it would be unfair to the appellee to accord the proposition the weight which might properly have been given to it had the question been made, relied upon, and presented in both courts. For the reasons we have given, the judgment must be affirmed. ROSS, C. J., and MoALISTER, J., concur.

OPINION MILLER, Presiding Judge: ¶ 1 Angelica Werderman seeks review of the trial court’s order summarily denying her petition for post-conviction relief filed pursuant to Rule 32, Ariz. R.Crim. P. On review, she argues the court erred in determining that our supreme court’s holding in State ex rel. Montgomery v. Harris, 234 Ariz. 343, 322 P.3d 160 (2014), does not constitute a significant change in the law applicable to her case. We grant review but, because Harris is not such a change pursuant to Rule 32.1(g), we deny relief. ¶ 2 After a jury trial, Werderman was convicted of two counts each of aggravated driving with an illegal drug or its metabolite in her body while a minor was present, endangerment, and child abuse, and one count each of aggravated assault of a minor under the age of fifteen and assault. Her aggravat ed driving convictions were based on the presence of benzoyleegonine in her blood, a non-impairing metabolite of cocaine. See A.R.S. § 28 — 1381(A)(3). The trial court sentenced her to concurrent prison terms, the longest of which was seven years. We affirmed her convictions and sentences on appeal. State v. Werderman, No. 2 CA-CR 2013-0016, 2013 WL 3771573 (memorandum decision filed Jul. 16, 2013). ¶ 3 Werderman sought post-conviction relief, arguing that, pursuant to Harris, there was insufficient evidence to support her conviction and that trial and appellate counsel were ineffective for failing to raise that issue. Acknowledging that Werderman did not expressly seek relief pursuant to Rule 32.1(g), the state nonetheless argued that Harris would not apply retroactively to her case. The trial court, apparently concluding Werderman had implicitly raised a claim under Rule 32.1(g), agreed that Harris did not apply retroactively and, thus, did not constitute a significant change in the law. The court rejected Werdermar's remaining claims and summarily denied relief. This petition for review followed. ¶ 4 On review, Werdermar's sole argument is that Harris constitutes a significant change in the law that entitles her to relief pursuant to Rule 32.1(g), and the trial court erred in concluding it was not retroactively applicable. We will not disturb the court’s ruling absent an abuse of discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App.2007). An error of law constitutes an abuse of discretion. State v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d 148, 150 (2006). ¶ 5 “Rule 32 does not define ‘a significant change in the law.’ ” State v. Shrum, 220 Ariz. 115, ¶ 15, 203 P.3d 1175, 1178 (2009). “But plainly a ‘change in the law' requires some transformative event, a ‘clear break from the past.’ ” Id., quoting State v. Slemmer, 170 Ariz. 174, 182, 823 P.2d 41, 49 (1991). Such change occurs, for example, “when an appellate court overrules previously binding ease law” or when there has been a “statutory or constitutional amendment representing a definite break from prior law.” Id. ¶¶ 16-17; see also State v. Poblete, 227 Ariz. 537, ¶ 10, 260 P.3d 1102, 1105 (App. 2011) (significant change in law occurs when subsequent authority rejects established law). ¶ 6 The trial court did not expressly find whether Harris constituted a significant change in the law as contemplated by Rule 32.1(g). It instead determined the case would not apply retroactively pursuant to the analysis described in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). But, if Harris is not a significant change in the law, Werderman is not entitled to relief and it is not necessary to evaluate, pursuant to Teague or Allen, whether Harris should apply retroactively. See Poblete, 227 Ariz. 537, ¶¶ 10-11, 260 P.3d at 1105 (after determining holding constitutes significant change in the law, reviewing court must then determine whether case is retroactively applicable). ¶ 7 Pursuant to § 28-1381(A)(3), it is unlawful for a person to drive or be in actual physical control of a vehicle “[w]hile there is any drug defined in [A.R.S.] § 13-3401 or its metabolite in the person’s body.” In Harris, our supreme court determined the term “its metabolite” was ambiguous because it could include “all of a proscribed drug’s byproducts” or only “primary or impairment-causing metabolites.” 234 Ariz. 343, ¶¶ 11-12, 322 P.3d at 162. It concluded that adopting the first interpretation — the term “its metabolite” encompassed all byproducts — would lead to an absurd result because it would “criminalize otherwise legal conduct,” “a driver who tested positive for trace elements of a non-impairing substance could be prosecuted,” and legal substances could generate metabolites common with prohibited substances. Id. ¶¶ 14-17. Based on the statute’s intent — “to prevent impaired driving”— the court thus “h[e]ld that the ‘metabolite’ reference in § 28-1381(A)(3) is limited to any of a proscribed substance’s metabolites that are capable of causing impairment.” Id. ¶ 24. ¶ 8 Werderman argues that our supreme court’s holding in Horns “broke new ground” because this court had determined in State v. Phillips, 178 Ariz. 368, 873 P.2d 706 (App.1994), that the predecessor statute to § 28-1381(A)(3), A.R.S. § 28-692(A)(3), “is not ambiguous.” But, as our supreme court noted in Harris, that issue was not presented in Phillips. Harris, 234 Ariz. 343, ¶ 6, 322 P.3d at 161. In Phillips, this court addressed a constitutional challenge to § 28-692(A)(3) that the statute was “vague and overbroad.” 178 Ariz. at 370, 873 P.2d at 708. We determined it was not because the statute “precisely defines, in unequivocal terms, the type of behavior prohibited: No one may drive or be in actual physical control of a vehicle if there is any amount of illicit drug or its metabolite in that person’s system.” Id. at 371, 873 P.2d at 709. We did not interpret the meaning of the phrase “its metabolite,” much less evaluate whether it would encompass non-impairing metabolites. ¶ 9 Werderman cites no other authority interpreting § 28-1381(A)(3) or its predecessor statute. The only other case we have found addressing the constitutionality or meaning of §§ 28-1381(A)(3) or 28-692(A)(3), State v. Hammonds, 192 Ariz. 528, 968 P.2d 601 (App.1998), also does not determine the meaning of the phrase “its metabolite.” As it did in regards to Phillips, the supreme court noted Hammonds did not address the issue presented in Harris. 234 Ariz. 343, ¶ 6, 322 P.3d at 161. ¶ 10 In Hammonds, this court instead addressed a constitutional equal protection challenge to § 28-692(A)(3). 192 Ariz. 528, ¶ 7, 968 P.2d at 603. The appellee claimed the statute “[swept] more broadly than necessary by including drivers who have only a metabolite of a drug in their urine,” because “the scientific evidence shows that a metabolite in the urine not only does not necessarily indicate an impairment to drive, it cannot even rule out that the drug may have been used long before the driving.” Id. We determined the statute did not violate equal protection by encompassing both impairing and non-impairing substances. Id. ¶¶ 9-12. But, we did not identify any ambiguity or evaluate whether § 28-692(A)(3) actually encompassed non-impairing metabolites. ¶ 11 Werderman has not identified any binding precedent overruled by our supreme court in Harris, and we have found none. We acknowledge that prior cases have suggested, without analysis, that a conviction under § 28-1381(A)(3) could be based on a non-impairing metabolite alone. But none of those cases actually confronted that question and, thus, Harris is not a significant change in the law — it is merely the first case to address the ambiguity of the phrase “its metabolite.” See Shrum, 220 Ariz. 115, ¶ 21, 203 P.3d at 1180 (“An appellate decision is not a significant change in the law simply because it is the first to interpret a statute.”); see also State v. Kelly, 210 Ariz. 460, ¶ 5,112 P.3d 682, 684 (App.2005) (dicta not binding authority). ¶ 12 Although we grant review, we deny relief. . As part of that analysis, the trial court concluded “that Harris announced a new rule because existing precedent would not dictate the result ... but would instead permit an (A)(3) DUI conviction based upon an inactive metabolite.” . Because Harris is not a significant change in the law, we need not determine whether its holding applies to a conviction based on a non-impairing cocaine metabolite.

OPINION MILLER, Presiding Judge: ¶ 1 In this expedited election appeal, we are asked to decide whether Julie K. Bower, the Clerk of the Town of Oro Valley, correctly rejected all signature sheets of a referendum petition filed by appellant Shirley Lamonna, for lack of compliance with A.R.S. § 19-111(B), and whether the statute and its enforcement here is constitutional. We conclude Lamonna failed to strictly comply with § 19-111(B), which requires the serial number issued for the referendum petition to appear on both sides of each petition sheet, and application of this and related statutes in this case is constitutional. Bower therefore acted correctly and we affirm the trial court’s denial of Appellants’ petition for a writ of mandamus. Factual and Procedural Background ¶ 2 The material facts are undisputed. On December 17, 2014, the council of the Town of Oro Valley (the Town) and its mayor adopted Resolution No. (R)14-66 (the Resolution), approving the Town’s acquisition of the El Conquistador Country Club, Golf, and Tennis facilities (the Property) for one million dollars, for the purpose of converting the Property into a community center. The Resolution authorizes the Town’s manager “to take such steps as are necessary to acquire” the Property. On December 18, 2014, Lamonna, as chairperson of “T.O.O.T.H. in OV,” a political committee that opposed the Resolution, registered the committee and filed an application for a referendum petition serial number. Bower issued Lamonna serial number OVREF 14-01. ¶ 3 On January 15, 2015, Lamonna returned 249 petition sheets to the clerk’s office, then completed and signed a receipt, which Bower also signed. Lamonna learned the petition sheets were defective because the Resolution number was used rather than the assigned serial number as required by § 19-111(B). See also A.R.S. § 19-101(B). Shortly thereafter, Bower rejected all sheets for OVREF 14-01 because none of them included the serial number. On January 23, 2015, Arrett and Lamonna filed a statutory special action pursuant to A.R.S. § 19-122(A), seeking a writ of mandamus compelling Bower to accept the petition sheets Lamonna had submitted as part of OVREF 14-01, and to transmit the petitions to the Pima County Recorder for verification and further processing for placement of the referendum on the ballot for the next election. See A.R.S. § 19-121.01. ¶ 4 Bower filed an answer to the complaint and a motion to dismiss/motion for summary judgment. The trial court set the matter for an order to show cause hearing on February 3, 2015. After Bower and Lamonna testified at that hearing, the parties submitted the matter to the court based on their testimony, the pleadings, memoranda, and exhibits. The court denied the motion to dismiss at the end of the hearing but took the matter under advisement, issuing its order denying the request for a writ of mandamus the following day. The court found the petition sheets did not comply with § 19-111(B), Bower had acted in accordance with the law in rejecting them, and Arrett and Lamonna had not sustained their burden of establishing they were entitled to special-action relief. The court denied Appellants’ request to stay its order. ¶ 5 Appellants’ accelerated appeal pursuant to Rule 10, Ariz. R. Civ.App. P., followed. They filed a motion in this court asking us to stay the trial court’s order and to enjoin the Town from further negotiations for or finalization of its purchase of the property, which was expected to occur sometime in March. We denied the request for a stay. Discussion ¶ 6 Appellants contend the petition sheets complied with all requirements provided in article IV, pt. 1, § 1, of the Arizona Constitution, particularly § 1(9). Characterizing § 19-111(B) as “non-substantive,” they assert the “undisputed error” did not invalidate the sheets. Appellants argue § 19-111(B) is not among the “helpful” kinds of limited provisions the legislature may enact to facilitate the important constitutional right of the electorate to initiative and referendum, and is, in fact, unconstitutional. They also challenge the application of a strict compliance standard to referenda, suggesting the statute is vague on its face or as applied here. ¶ 7 ‘We review a trial court’s decision on a request for injunctive or mandamus relief under § 19-122 for an abuse of discretion.” Parker v. City of Tucson, 233 Ariz. 422, ¶ 11, 314 P.3d 100, 106 (App.2013). An abuse of discretion includes an error in the interpretation or application of the law. See id. This appeal raises questions regarding the interpretation and application of election statutes and Arizona’s constitution; we review these questions of law de novo. Pedersen v. Bennett, 230 Ariz. 556, ¶ 6, 288 P.3d 760, 762 (2012). ¶ 8 “Our primary purpose in interpreting a statute is to give effect to the legislature’s intent.” Parker, 233 Ariz. 422, ¶ 12, 314 P.3d at 106. A statute’s plain language is the best reflection of the legislature’s intent; therefore, when the language “is clear and unambiguous we need look no further than the statute’s terms to determine its meaning and do not employ other principles of statutory construction.” Id. These principles of construction apply to the interpretation of Arizona’s constitution, requiring us to interpret its provisions “to effectuate the intent of those who framed [them].” Jett v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994); see also Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.R., 228 Ariz. 100, ¶ 6, 263 P.3d 649, 651 (App.2011) (if language of constitutional provision is “unambiguous, we generally must follow the text as written”). ¶ 9 The Arizona Constitution reserves the power of initiative and referendum to the qualified electors of cities, towns, and counties. Ariz. Const. art. IV, pt. 1, § 1(8). This court recognizes the importance of and “respect[e] the citizens’ constitutional right to challenge a government’s legislative actions by referring a duly enacted measure to the ballot for a vote.” Sklar v. Town of Fountain Hills, 220 Ariz. 449, ¶ 8, 207 P.3d 702, 705 (App.2008). Indeed, the courts of this state “have long recognized the strong public policy favoring the initiative and referendum.” Van Riper v. Threadgill, 183 Ariz. 580, 582, 905 P.2d 589, 591 (App.1995), citing W. Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 428, 814 P.2d 767, 769 (1991). The right of initiative and referendum has been “characterized ... as ‘vital,’ and one so important to the authors of our constitution that they included sufficient machinery in the constitution to make the right self-executing.” Id., quoting Crozier v. Frohmiller, 65 Ariz. 296, 298, 179 P.2d 445, 447 (1947). ¶ 10 Arizona’s constitution includes certain requirements as to the form and contents of initiative and referendum petitions. Ariz. Const. art. IV, pt. 1, § 1(9). As Appellants correctly point out, article IV, part 1, is self-executing. See Ariz. Const. art. IV, pt. 1, § 1(16). But as they concede, the fact that the constitutional provisions are self-executing does not preclude the legislature from enacting laws pertaining to referenda and initiatives. Direct Sellers Ass’n v. McBrayer, 109 Ariz. 3, 5, 503 P.2d 951, 953 (1972). Indeed, the constitution expressly permits localities to “prescribe the manner of exercising said powers,” and to supplement the provisions of the constitution as long as they do so “within the restrictions of general laws.” See Ariz. Const. art. IV, pt. 1, § 1(8). Our courts repeatedly have recognized the power of the legislature to regulate the referendum process. See, e.g., Cottonwood Dev. v. Foothills Area Coal, of Tucson, Inc., 134 Ariz. 46, 49, 653 P.2d 694, 697 (1982); Direct Sellers, 109 Ariz. at 5, 503 P.2d at 953; Lawrence v. Jones, 199 Ariz. 446, ¶¶ 7-9, 18 P.3d 1245, 1248-49 (App.2001). “If such legislation does not unreasonably hinder or restrict the constitutional provision and if the legislation reasonably supplements the constitutional purpose, then the legislation may stand.” Direct Sellers, 109 Ariz. at 5, 503 P.2d at 953 (upholding validity of statute requiring circulators of referendum petitions be qualified electors, even absent constitutional requirement). ¶ 11 The legislature initially adopted laws relating to initiative and referendum in 1953, “prescribing the form, verification and method of circulation of petitions.” 1953 Ariz. Sess. Laws, ch. 82. The stated purpose of these laws was to “further implement[ ] the provisions of the Constitution,” prevent fraud and abuse of the process, and “safeguard to the people their right of initiative and referendum in its original concept.” 1953 Ariz. Sess. Laws, ch. 82, § 1. In 1989, the legislature amended existing statutes and enacted new provisions relating to initiative, referendum, and recall elections. 1989 Ariz. Sess. Laws, ch. 10. It expressly stated the purpose of this legislation: The right of initiative and referendum shall be broadly construed. If there is doubt about requirements of ordinances, charters, statutes or the constitution concerning only the form and manner in which the power of an initiative or referendum should be exercised, these requirements shall be broadly construed, and the effect of a failure to comply with these requirements shall not destroy the presumption of validity of citizens’ signatures, petitions or the initiated or referred measure, unless the ordinance, charter, statute or constitution expressly and explicitly makes any fatal departure from the terms of the law. 1989 Ariz. Sess. Laws, ch. 10, § 1. ¶ 12 The substance of § 19-111 was contained in the various statutes enacted in 1953 that adopted portions of the 1939 Arizona Code, specifically, § 60-103, which required the issuance of a serial number. 1953 Ariz. Sess. Laws, ch. 82, § 3. Section 19-111(B) currently provides as follows: On receipt of the application, the secretary of state [town clerk ] shall assign an official serial number to the petition, which number shall appear in the lower right-hand corner of each side of each copy thereof, and issue that number to the applicant. The secretary of state shall assign numbers to petitions in numerical sequence, and a record shall be maintained in the secretary of state’s office of each application received and of the numbers assigned and issued to the applicant. (Emphasis added.) The significance of the serial number is reinforced in other statutes. Section 19-101(B), A.R.S., requires each petition sheet include this admonition on the top of the sheet: “It is unlawful to sign this petition before it has a serial number.” Most important, § 19-121.01(A)(1)(e) requires the secretary of state to remove “[t]hose sheets not bearing the petition serial number in the lower right-hand corner of each side.” ¶ 13 Appellants argue the serial number requirement under § 19-111(B), unlike requirements of other statutes enacted to facilitate the initiative or referendum process, “is meaningless to petition signers and practically useless to town clerks.” They suggest the number of the Resolution, which they placed on the petition sheets, is “more meaningful” to Oro Valley residents who sign the petition because it makes clear the signatures relate to that Resolution. And, they argue, the “statute does not reveal or explain the purpose of the serial number which appears to be clerical and not citizen informative or substantive.” Appellants essentially contend the statute unconstitutionally exceeds the permissible scope of legislation in this area because it would not assist the electors in deciding whether to sign the petition; it does not “ ‘supplement ]’ the constitutional purpose” and, it is unduly burdensome. They conclude that its application divested Oro Valley residents of their right to referendum. As discussed below, this view is unnecessarily narrow with respect to the effect and purpose of § 19—111(B). ¶ 14 We first address Bower’s threshold argument that the constitutional challenge was waived because it was not sufficiently developed in the trial court. The challenge was raised briefly, albeit broadly and not with the specificity they have raised on appeal. Nevertheless, we think the argument was sufficiently preserved for appellate review and we will address it given the importance of the right involved. See Harris v. City of Bisbee, 219 Ariz. 36, n. 3, 192 P.3d 162, 166 n. 3 (App.2008) (addressing issues that could be regarded as waived because court has duty to determine legal sufficiency of referendum petitions and “whether they comply strictly with all relevant statutory and constitutional provisions”). ¶ 15 Bower further and correctly asserts that Appellants failed to comply with A.R.S. § 12-1841, which requires notification to the Arizona Attorney General, the Speaker of the House of Representatives, and the President of the Senate when a party challenges as unconstitutional any “state statute, ordinance, franchise or rule.” We have, however, permitted the Secretary of State, represented by the Attorney General, to intervene and have considered its brief and oral arguments defending the constitutionality of these statutes. ¶ 16 The Secretary of State asserts that any ruling negating the serial number requirement “threatens the integrity of elections far beyond this single local referendum” and “would undermine the ability of the Secretary to ensure the authenticity and validity of petitions for initiatives and referenda on a statewide level.” The Secretary’s position stands on the constitutional duty to fulfill the duties prescribed by the legislature, which include general oversight of statewide referenda. See Ariz. Const. art. V, § 9; A.R.S. §§ 19-121.01, 41-121(9). As such, the Secretary’s arguments have the same force, if not greater, than those advanced by Bower. ¶ 17 As the Secretary correctly observes, the serial number requirement has existed for more than sixty years, and we agree it is a “critical tool for ensuring the fairness and integrity of the initiative and referendum process.” The Secretary is also correct that the legislative history emphasizes the importance of the serial number to the process and refutes Appellants’ contention that it is merely clerical and meaningless. Individual sheets may become separated and without such identification, it would be difficult, if not impossible, to determine with which petition the signatures have been submitted. Indeed, Bower testified at the hearing about the importance of this system of identification in “tracking]” petitions and “keep[ing] the petitions separate,” particularly in the circumstances such as here, where multiple petitions were filed on a single resolution; and, she processed the two petitions at the same time. As Bower emphasized during oral argument before this court, the serial number also serves as notice and assurance to the voters who sign the petition that it is official and has been procured in accordance with the statutory requirements for the electoral process. The requirement “does not unreasonably hinder or restrict the constitutional provision and ... reasonably supplements the constitutional purpose.” Direct Sellers, 109 Ariz. at 5, 503 P.2d at 953; see also State ex rel. Montgomery v. Mathis, 231 Ariz. 103, ¶¶ 38-39, 290 P.3d 1226, 1238 (App.2012). It is designed to safeguard and maintain the integrity of this important constitutional right, not to inhibit or discourage its exercise. ¶ 18 That the power of referendum is not utilized often, an assertion the Secretary of State refutes, or that the referendum petition Lamonna filed was the first in the Town of Oro Valley in years and the only one filed in 2014 in connection with the Resolution, does not render the statute meaningless. Nor does it dispense with the requirements of the statutes. The Secretary asserts that without the serial number, the opportunities for fraud are “self-evident” and there would be no means of assuring accurate counting of signatures. Moreover, in the context of statewide referenda, there may be multiple or amended petitions, for which the serial number requirement would be essential to maintaining the integrity of the process. As we previously stated, “public policy favors uniformity in the referral process—uniformity the statutory framework was intended to provide.” Fidelity Nat. Title Co. v. Town of Marana, 220 Ariz. 247, ¶ 13, 204 P.3d 1096, 1099 (App. 2009). The process established by the legislature was not intended to be implemented differently throughout the state, with less rigorous adherence required in cities or towns of smaller populations where, perhaps, fewer petitions are filed. ¶ 19 Appellants also contend the serial number requirement is vague and ambiguous. But their argument is based more on the fact that Lamonna made a mistake. Lamonna admitted she had made an “error” by using the resolution number rather than the serial number. She was not confused by Bower, indeed, she expressly testified she “never claimed that the error was the clerk’s.” The testimony and exhibits establish Bower provided Lamonna with a handbook, which contained instructions for filing an application and obtaining a serial number. The handbook states in the section entitled, “Petition Format,” that the serial number had to appear “on lower right hand corner on front and back of petition.” The application for a serial number makes clear that the number is the one issued by the Town clerk, as do the statutes. And consistent with § 19-101(B), each petition sheet displayed the warning, “It is unlawful to sign this petition before it has a serial number.” More importantly, nothing in the plain language of § 19-111 confuses the official serial number, the number issued by the Town clerk, with the number that identifies the subject legislation. Even when a person has received erroneous advice from a governmental official, it is the responsibility of the person challenging an ordinance, resolution, or statute “to comply with the statutory requirements for filing a referendum petition.” Fidelity, 220 Ariz. 247, ¶ 14, 204 P.3d at 1099. ¶ 20 Appellants also contend § 19-111 hinders rather than supplements the constitutional purpose of the referendum. In that sense, they argue that it unnecessarily burdens them, relying on Direct Sellers, 109 Ariz. at 5, 503 P.2d at 953. There is no evidence in the record, however, that the serial number provided by Bower to Lamonna was hidden or obscured. Instead, this was an unfortunate mistake for which Appellants attribute no blame to the clerk. Additionally, it appears to be a very rare occurrence — the parties were aware of no other case involving a missing serial number. ¶ 21 Appellants’ final two arguments are interrelated. They urge us to question the wisdom of requiring strict as opposed to substantial compliance with respect to referendum petitions. And, they argue the term “shall” in §§ 19-111(B), 19-121(A)(2), and 19-121.01(A)(1)(c) is directory rather than mandatory. ¶ 22 Our supreme court repeatedly has imposed a strict compliance standard on referendum petitions under the Arizona Consti tution and statutes. Feldmeier v. Watson, 211 Ariz. 444, ¶ 12, 123 P.3d 180, 183 (2005); W. Devcor, 168 Ariz. at 429, 814 P.2d at 770; Cottonwood Dev., 134 Ariz. at 49, 653 P.2d at 697. Applying supreme court precedent, this court has done so as well. Sklar, 220 Ariz. 449, ¶ 9, 207 P.3d at 705; Harris, 219 Ariz. 36, ¶ 13, 192 P.3d at 166. In contrast, Arizona courts follow a rule of “substantial compliance” with respect to the form of initiative petitions. Feldmeier, 211 Ariz. 444, ¶¶ 14-15, 123 P.3d at 183-84; see also Pedersen, 230 Ariz. 556, ¶ 9, 288 P.3d at 762. The supreme court observed in Direct Sellers: “The right to suspend, and possibly to revoke, as given by the referendum ... is an extraordinary power which ought not unreasonably to be restricted or enlarged by construction. It must be confined within the reasonable limits fixed by the charter (statute). The charter (statute) prescribes what the petition for referendum shall contain, how it shall be signed, and by whom it shall be verified. These provisions are intended to guard the integrity both of the proceeding and of the petition. Where a power so great as the suspension of an ordinance or of a law is vested in a minority, the safeguards provided by law against its irregular or fraudulent exercise should be carefully maintained.” 109 Ariz. at 5-6, 503 P.2d at 953-54, quoting AAD Temple Bldg. Ass’n v. Duluth, 135 Minn. 221, 160 N.W. 682, 684-85 (1916); see also Cottonwood Dev., 134 Ariz. at 48-49, 653 P.2d at 696-97 (reciting same principle and noting successful referendum undermines majority will by suspending application of referred statute or ordinance until electorate can vote at next general election). To the extent Appellants request that we change the standard to substantial compliance, we are without authority to do so. See City of Phx. v. Leroy’s Liquors, Inc., 177 Ariz. 375, 378, 868 P.2d 958, 961 (App.1993) (court of appeals has no authority to overrule, modify, or disregard our supreme court). ¶ 23 This standard of strict compliance “requires nearly perfect compliance with constitutional and statutory referendum requirements.” Comm, for Pres, of Established Neighborhoods v. Riffel, 213 Ariz. 247, ¶ 6, 141 P.3d 422, 424 (App.2006). Appellants did not strictly comply here, and Bower was required by the plain and unambiguous terms of the statutes to remove the petition sheets and process them no further. ¶ 24 We also reject Appellants’ argument that the term “shall” in the relevant statutes is “directory” rather than “mandatory.” None of the cases they rely on is an election case involving referendum. See, e.g., Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550, 554-55, 637 P.2d 1053, 1057-58 (1981) (interpreting term “shall” in A.R.S. § 5-110(A), statute regulating horse racing, as directory and indicating “desirability, preference, or permission” after viewing statute “as a whole” to determine its constitutionality); Forino v. Ariz. Dep’t of Transp., 191 Ariz. 77, 80-81, 952 P.2d 315, 318-19 (App.1997) (determining time period for conducting driver’s license suspension hearing before Arizona Department of Transportation under Arizona’s implied consent statute directory not mandatory, and failure to hold hearing within period did not divest agency of jurisdiction absent showing of prejudice). The plain meaning of “shall,” particularly in this context is mandatory. Nothing in the statutory scheme, viewed as a whole, suggests Bower had any choice but to remove petition sheets in which the serial number she had been required to issue to Lamonna did not appear on the bottom right of the front and back. Section 19-111(B) provides a serial number “shall [be] assigned],” that number “shall appear in the lower right-hand corner of each side of each copy thereof,” § 19-101(B) requires each petition sheet to display a warning that “ ‘[i]t is unlawful to sign this petition before it has a serial number,’ ” a warning the petition sheets did have here, and pursuant to § 19-121.01(A)(1)(c), the secretary of state “shall” remove any sheets that do not bear the serial number. ¶ 25 Appellants suggest this court’s decision in Hams supports their argument that the word “shall” is directory. Their reliance on that case, however, is misplaced. In Harris, we acknowledged that referenda are subject to a strict compliance standard. 219 Ariz. 36, ¶ 13, 192 P.3d at 166. But, we noted, consistent with the strong public policy in this state that favors facilitating the referendum process, “our courts have held that, unless the failure to comply strictly with a statutory requirement is expressly made fatal, that failure ‘does not make the signatures appearing on the petitions null and void, but merely destroys their presumption of validity.’ ” Id. ¶¶ 14, 21, quoting Direct Sellers, 109 Ariz. at 5, 503 P.2d at 953. This court found that although the presumption of validity had been destroyed by the lack of strict compliance in two primary respects, it had been restored as to some of the signatures. Id. ¶¶ 21-22. Section 19-121.01(A)(1)(e), on its face, and when considered together with related statutes and in light of the purpose served by the use of a serial number, makes the lack of compliance fatal; it requires the removal of sheets that do not bear the serial number. Cf. Israel v. Town of Cave Creek, 196 Ariz. 150, n. 7, 993 P.2d 1114, 1119 n. 7 (App.1999) (noting “failure to make a required organizational listing does not, strictly speaking, invalidate” application under § 19-111(A) but under “A.R.S. § 19-114(B), it invalidates any signatures obtained on referendum petitions circulated pursuant to an insufficient application”; effect is same because “it renders an insufficient application a futility”). ¶ 26 Similarly, in Forszt v. Rodriguez, 212 Ariz. 263, ¶ 11, 130 P.3d 538, 540 (App.2006), we observed that “failure to strictly comply with a procedural statutory requirement does not always necessitate that the referendum petition be declared void” in the absence of a statute so stating. We concluded that failure to file the petition sheets with a copy of the subject ordinance attached to each sheet as required by the statute did not, in the “specific circumstances” of that case, “compel the trial court to declare the signatures be declared void,” because it was not disputed the ordinance had been attached when the sheets were signed. Id. ¶¶ 14-15. In Forszt, the petition complied with all statutory requirements throughout the process; further, the ordinance was attached to each petition sheet and was not detached until after the sheets were signed. Id. ¶¶ 15-16. Thus, the trial court had not erred by finding the presumption of validity, destroyed by the lack of strict compliance, had been restored. Id. ¶ 15. ¶ 27 Important to our decision in Forszt, however, was the fact that we could “conceive of no independent purpose for the requirement that signatures be filed with the ordinance attached other than to confirm that they have been so circulated.” Id. ¶ 17. We noted, in that regard, that “§ 19-121.01(A)(1)(b) requires the clerk to detach any copies of the ordinance from the signature sheets immediately upon confirming that they were submitted attached—a provision that suggests the legislature lacked any additional purpose for requiring that the ordinance be attached when the petition is filed.” Id. ¶ 28 Here, however, the presumption of validity with respect to the petition could not be restored because the petition was never correct, not from the moment Lamonna obtained it and not at the time the signatures were obtained. Perhaps more importantly, there is an independent purpose for requiring each sheet to display the serial number that was issued by the person charged with overseeing the election process. As we have made clear, the requirement is of statewide importance to maintaining the integrity of the referendum process. It provides notice to the person signing that it is an official petition, it protects against fraud, and it attempts to ensure accuracy in the referendum process by demanding, not suggesting, a systematic, fail-safe means of identifying individual petition sheets with a specific referendum petition. Disposition ¶ 29 We acknowledge that the right of the citizens of this state to “challenge a government’s legislative actions by referring a duly enacted measure to the ballot for a vote,” is an important constitutional right, one that must be respected and safeguarded by our courts and our legislature. Sklar, 220 Ariz. 449, ¶ 8, 207 P.3d at 705. And as this court has noted before, “[w]e are well aware that ... seemingly straightforward statutory requirements for pursuing a referendum are at times mystifying,” even to those directly involved in the process. Fidelity Nat. Title Co., 220 Ariz. 247, ¶ 15, 204 P.3d at 1100. This ease and others like it illustrate “harsh consequences ... can occur when the statutory framework is not followed.” Id. ¶ 14. But the clear, mandatory requirements of § 19-111(B), together with the related provisions of §§ 19-121(A)(2) and 19-121.01(A)(1)(c), serves the permissible and important purpose of facilitating and protecting, not burdening, the referendum process. Failure to follow strictly the requirements of this provision required the removal of all defective petition sheets. We, therefore, affirm the trial court’s order denying Appellants’ request for a writ of mandamus. We disagree, however, with Bower’s contention that this appeal was frivolous or brought in bad faith and without substantial justification, and therefore deny her request for attorney fees pursuant to A.R.S. § 12-349 and Rule 25, Ariz. R. Civ.App. P. . The property consists of a 31,475-square-foot building, a 5,600-square-foot building, approximately 324 acres of land, thirty-one tennis courts, two swimming pools, and forty-five holes of golf. . Arrett also applied for and received a referendum serial number, OVREF 15-01, pertaining to the Resolution, but Appellants clarified at oral argument that this petition is not the subject of the appeal because it contained the required serial number. Instead, Arrett is a party to this action by virtue of her status as a resident of the Town and her opposition to the Resolution. Bower also rejected OVREF 15-01 for having insufficient signatures. Appellants are not challenging that determination. . Appellants’ arguments in their opening brief posit facial and as-applied challenges to the constitutionality of § 19-111(B). In their reply to Bower's answering brief and their response to intervenor Secretary of State’s brief, they limit the challenge to the application of the statutes in these circumstances. However, they returned to their dual challenge when they asserted during oral argument that the failure to include a serial number should never be fatal to a referendum petition, which effectively positions the argument as a facial challenge. . The statutes regarding initiative and referendum apply to cities, counties and towns, unless expressly provided otherwise in that article. A.R.S. § 19 — 141 (A) ("[Djuties required of the secretary of state as to state legislation shall be performed in connection with such legislation by the city or town clerk ... [or] officer in charge of elections.”). . This court has "attempted to harmonize the ‘broad construction’ legislative directive found in § 19-111 with the existing case law mandating 'strict construction.' ” Sklar, 220 Ariz. 449, ¶ 11, 207 P.3d at 705-06, citing Lawrence, 199 Ariz. 446, ¶ 3, 18 P.3d at 1247. In so doing, we demand strict compliance with statutory requirements but construe broadly the terms used in the statute to identify the requirement. Id. Section 19-111(B) makes it clear that the serial number is the one used by the election official and that it is the number that must appear on both sides of each petition sheet. There can be no other construction of this unambiguous term.

OPINION THOMPSON, Judge: ¶ 1 Appellants appeal from the trial court’s grant of summary judgment 1) confirming an arbitration award and certifying it as a final judgment, and 2) issuing a declaratory judgment that the amounts awarded to attorney Russell Piccoli and Mariscal, Weeks, McIntyre & Friedlander, P.A. (collectively Law Firm) at arbitration constituted marital debts pursuant to Missouri law that could be satisfied out of marital assets. For the following reasons, we affirm the decision of the trial court. FACTUAL AND PROCEDURAL HISTORY ¶ 2 Francis E. O’Donnell Jr. (Frank) and Kathleen E. O’Donnell (Katie) were married in 1990. A day before and shortly after his marriage to Katie, Frank established a number of trusts entitled “The Francis E. O’Donnell Jr. Irrevocable Trusts # 1 through 10 and Descendents Trust” (the trusts). Frank’s sister Kathleen M. O’Donnell (Trustee), an Arizona attorney, was trustee of the trusts and administered them in Maricopa County. Katie filed for divorce in Missouri in 2008. As of the briefing in this appeal, the divorce was still pending. ¶ 3 In May 2009, Trustee filed an action in Maricopa County probate court seeking a declaration that Katie was no longer a beneficiary of the trusts and to determine whether she had any marital interest in any of the trust assets. Katie hired Law Firm to represent her in the probate action and in a civil action she brought against Frank and Trustee alleging various torts relating to the administration of the trusts. ¶ 4 Katie unsuccessfully attempted to join Trustee and the trusts as necessary parties in the Missouri divorce proceeding. In November 2010, the Missouri court confirmed that the Maricopa County probate court should decide whether the trust assets were marital in nature under Missouri law, stating that the determination would not “prejudice the ability of the Missouri court to eventually address the equitable distribution of the property and debts of the parties along with the other issues involved in the dissolution proceeding.” Also in November 2010, the Missouri court denied Trustee’s motion to intervene in the Missouri divorce, without prejudice to her reasserting the motion to intervene in the future. ¶ 5 Katie ultimately was successful at trial in Arizona; in 2011 the probate court determined that she had a marital property interest in the trust assets. Trustee and Frank appealed. Law Firm withdrew from representing Katie prior to the briefing in that appeal. It then sought to intervene in the probate action to protect its interest in attorneys’ fees and costs owed by Katie. The probate court denied Law Firm’s motion to intervene. ¶ 6 We affirmed the probate court’s decision in In re Francis E. O’Donnell, Jr., Irrevocable Trust No. 1 to No. 10, No. 1 CA-CV 11-0261, 2013 WL 709650 (App. Feb. 26, 2013) (mem. decision). In doing so, we acknowledged that, under Missouri law, “a spouse does not have a presently enforceable ownership interest in marital property until a court has issued a decree of dissolution,” but concluded that the probate court could still determine whether Katie factually had a marital interest in the trust assets. Id. at ¶¶ 18-19. After a dispute arose over Law Firm’s fees, Law Firm filed a private arbitration action against Katie pursuant to its retention agreement with her. Trustee and Frank were not involved in the arbitration because they were not parties to the retention agreement. The arbitration resulted in an arbitration award in favor of Law Firm and against Katie for $163,642.37. The award stated that the $163,642.37 “constitute[d] a marital debt within the purview of Missouri law....” ¶ 7 In August 2012, Law Firm filed a complaint in superior court (the ease resulting in this appeal) against Katie, Frank, and Trustee requesting a declaratory judgment that its arbitration award against Katie could be satisfied from the marital assets. After briefing, the trial court granted Law Firm’s motion for summary judgment. The court rejected Frank and Trustee’s argument that the award should not be confirmed because it resulted from collusive conduct between Law Firm and Katie, and issued a declaratory judgment including Arizona Rule of Civil Procedure 54(b) certification on April 18, 2013 that: (a) [Katie] incurred her debt to [Law Firm] during the marriage to [Frank]; (b) all amounts awarded, and to be awarded, to [Law Firm] at arbitration constitute marital debts within the purview of Missouri law; and (c) all awards and judgments in favor of [Law Firm] may be satisfied out of those assets found to be marital assets by this Court’s judgment of February 9, 2011, subject to any further order of the Circuit Court of St. Louis County, in 08SL-DR-01397. The court further stated: the requested declaratory relief is for an order that Katie’s obligation to [Law Firm] is a marital debt and may be satisfied from the marital property, subject to further order of the Missouri Family Court. It has nothing to do with how the Missouri court might ultimately divide the parties’ assets, allocate their debts between them, treat other creditors, or impact the Missouri dissolution court. These are issues for the Missouri court to address. ¶ 8 In August 2013, Trustee and Frank filed a motion to stay Law Firm’s attempts to execute on the judgment pending a final divorce decree from the Missouri court and a motion to determine whether the court should issue a supersedeas bond. The court denied the request for stay, stating: [T]his Court has repeatedly denied [Trustee and Frank]s’ requests to delay a judgment (and execution thereon) pending a final decree by the Missouri Divorce Court. It is disingenuous for [Trustee and Frank] to suggest that this Court’s Judgment requires the Missouri Court to issue further orders before [Law Firm] can pursue collection. To be clear, the language in the April 18, 2013 Judgment—“subject to any further order” of the Missouri Dissolution Court—did and does not mean that an order relating to distribution of property and debt in the dissolution action is necessary to execute on the Judgment in this case. It means the Judgment is subject to execution against the trust assets or any other resources unless and until the Missouri Court exercises its jurisdiction over the divorce case in a way that impacts the Judgment. According to Plaintiffs Response, the Missouri Court has had the Judgment lodged since May 23, 2013, and taken no action. The court ordered Trustee and Frank to post a bond in the amount of the judgment plus interest. In September 2013, the court entered a judgment nunc pro tunc relating back to the court’s April 18, 2013 judgment. ¶ 9 Trustee and Frank timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101 (2003). DISCUSSION A. Standard of Review ¶ 10 Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a). We review the grant of summary judgment de novo to determine whether any genuine issue of material fact exists, and we view the evidence and all reasonable inferences in favor of the non-moving party. Chalpin v. Snyder, 220 Ariz. 413, 418, ¶ 17, 207 P.3d 666, 671 (App.2008) (citation omitted). Summary judgment should be granted “if the facts produced in support of [a] claim ... have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim....” Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). B. There Was a Justiciable Controversy Between Law Firm and the Parties ¶ 11 Appellants first argue that the judgment should be reversed because it constituted an advisory opinion that resolved theoretical rights. Because the Missouri dissolution action remained pending, they contend, the action brought by Law Firm was non-justiciable. We disagree. ¶ 12 For there to be a justiciable controversy in a declaratory judgment action, “there must be an assertion of a right, status or legal relation in which the plaintiff has a definite interest and a denial of it by the opposing party.” Samaritan Health Svcs. v. City of Glendale, 148 Ariz. 394, 395, 714 P.2d 887, 888 (App.1986) (citation omitted). We interpret the declaratory judgment act liberally. Keggi v. Northbrook Prop. & Cos. Ins. Co., 199 Ariz. 43, 45, ¶ 10, 13 P.3d 785, 787 (App.2000) (citation omitted). Here, the trial court correctly found that a justiciable controversy existed as to Law Firm’s interest in the trust assets. In 2011, we affirmed the trial court’s judgment that the trust properties constituted marital property under Missouri law. After obtaining its arbitration award, Law Firm asserted a right to execute on the trusts to satisfy the marital debt. The appellants sought to prevent Law Firm from doing so. Accordingly, there was a justiciable controversy in this case. C. The Judgment Was Not a Collateral Attack on Prior Judgments or Inconsistent With Our Decision in 1 CA-CV 11-0261 ¶ 13 Appellants next argue that the trial court’s judgment was an improper collateral attack on a prior ruling of the Maricopa County probate court on November 5, 2010, and on judgments of the Missouri dissolution court dated July 10, 2009, November 2, 2010, and November 17, 2010, and that the judgment “improperly cross[ed a] jurisdictional boundary line” set by our decision in 1 CA-CV 11-0261. We disagree. ¶ 14 In its July 10, 2009 decision the Missouri court stated that “the Arizona court shall have the exclusive authority pursuant to [Mo.Rev.Stat.] Sect. 456.2-202 to determine the issues presented by [Katie]’s amended petition applicable to the trusts ... inelud[ing] the authority to declare whether [Katie] has any interest in the trusts and to interpret the terms of the trust pertaining to any such interest.” In its November 2, 2010 judgment, the Missouri court denied Frank’s motion for partial summary judgment requesting to dissolve the marriage only. In denying the motion, the court observed that it had a “statutory duty to characterize and to equitably divide the property of the parties as part of the final judgment of dissolution.” The court further stated that it would “also need to resolve other financial issues between the parties as part of the eventual dissolution judgment that could be impacted by the property orders of this court.” ¶ 15 In its November 17, 2010 order denying Frank’s motion for reconsideration, the Missouri court stated: The Judge in Arizona may apply Missouri law ... to determine whether [Frank] properly placed marital assets in an irrevocable trust such that they are not subject to an equitable division of property in the dissolution proceeding.... That is a factual determination which the Court in Arizona is well suited to making and that finding will not prejudice the ability of the Missouri court to eventually address the equitable distribution of the property and debts of the parties along with the other issues involved in the dissolution proceeding. ¶ 16 In its November 5, 2010 minute entry, the Maricopa County probate court observed that the Missouri court had expressly deferred to the Arizona court to resolve trust issues. ¶ 17 Appellants argue that these rulings show that the Missouri court had reserved to Missouri the equitable distribution of the parties’ property, and that only the Missouri court could characterize property as marital property or debt as marital debt. This interpretation ignores the fact that after the Arizona trial court granted summary judgment to Law Firm, the Missouri court dismissed Frank’s motion for declaratory judgment because it agreed that the motion was a collateral attack on the Arizona trial court’s judgment in favor of Law Firm. In so ruling, the Missouri court stated, “the Arizona court properly ruled that its judgment that the debt to [Law Firm] was a marital debt ‘has nothing to do with how the Missouri court might ultimately divide the parties’ assets, allocate their debts between them, treat other creditors, or impact the Missouri dissolution court. These are issues for the Missouri court to address.’ ” The Missouri court clearly agreed that the Arizona trial court had the power to determine that the debt to Law Firm was marital debt. ¶ 18 In our memorandum decision in In re Francis E. O’Donnell, Jr., Irrevocable Trust No. 1 to No. 10, we affirmed the probate court’s decision that there was a fraud on the marriage by Frank’s transfer of marital assets to the trusts located in Arizona, and that there were marital assets in Arizona. 1 CA-CV 11-0261, 2013 WL 709650, at *13, ¶ 23 (Ariz.App. Feb. 26, 2013) (mem. decision). As a consequence, those marital assets are not subject to the trust terms. We rejected Trustee’s argument that, as a matter of law, Katie could not assert a marital fraud claim because marital property could not exist pri- or to entry of a dissolution decree. Id. at *12, ¶ 20 n. 10. We further observed that: [u]nder [Mo.Rev.Stat.] § 452.330.2, the commencement of a dissolution proceeding does not modify the marital property rights of either party, or create new ones: it simply puts into play the right of a spouse to implement his or her marital property rights—such as the right to seek an equitable distribution—in the event the marriage is dissolved. Id. at *10, ¶ 17. Nothing in our memorandum decision would prevent the trial court’s decision entering a judgment in favor of Law Firm. D. The Judgment Was Not Erroneous Under Missouri Law ¶ 19 Appellants next argue that the judgment should be reversed because it is improper under Missouri law. Citing Missouri Annotated Statutes § 452.330 et seq., appellants argue that the purpose of the Missouri statutes’ characterization of property and debts as “marital” is solely to aid the divorce court in fairly dividing property acquired during marriage. They contend that the trial court here erred by assuming the Missouri statutes provide a substantive right to a creditor such as Law Firm. Section 452.330(1) provides that in a divorce proceeding, “the court shall set apart to each spouse such spouse’s nonmarital property and shall divide the marital property and marital debts in such proportions as the court deems just after considering all relevant factors....” Section 452.330(2) defines marital property “[f]or purposes of sections 452.300 to 452.415 only” as all property acquired by either spouse during the marriage, and lists a number of exceptions to the rule. ¶ 20 Here, the marital property was determined pursuant to section 452.330 by the Arizona courts. Missouri asked Arizona to determine the status of the trust assets so that it could allocate the property. The decision of the Maricopa County probate court, as affirmed by our decision in 1 CA-CV 11-0261, conclusively determined that the trust assets constituted marital property of Frank and Katie. ¶ 21 Appellants also argue that under Missouri law a spouse has no power to contract debts for the other spouse during marriage and the assets of one spouse are not liable for the debts of the other spouse during marriage. Citing Sigmund v. Rea, 226 Ariz. 373, 248 P.3d 703 (App.2011), they assert that “Missouri law does not presume agency by virtue of the marital relationship.” However, Law Firm’s claim is not against the separate assets of Frank or Katie; it is against their marital assets. As to that claim, it is immaterial that neither Frank nor Katie now has a separately enforceable interest in the marital assets, because they both own the assets and they are both judgment debtors as to Law Firm. See also Gryder v. Gryder, 129 S.W.3d 467, 471 (Mo.Ct.App.2004) (marital debts in Missouri include all debts incurred either jointly or separately during marriage). ¶ 22 Appellants assert that “no evidence exists that Katie acted on behalf of Appellants in incurring her legal fees.... ” But our prior decision held that “[t]he issue ... is whether Frank committed a fraud on the marriage by placing what should have been marital property into the trusts in an attempt to change the character of the property from marital to non-marital.” In re Francis E. O’Donnell, Jr., Irrevocable Trust No. 1 to No. 10, 1 CA-CV 11-0261, 2013 WL 709650, at *13, ¶ 23. In determining that the marital estate was defrauded, we necessarily determined that Katie acted on behalf of the marital estate when she sued to recover those assets for the estate. E. The Arbitrator Did Not Exceed His Authority, There Was No Evidence that the Arbitration Award Was Collusive, and the Judgment Did Not Violate Appellants’ Due Process Rights ¶ 23 Appellants argue that the trial court erred in entering the judgment against them because the arbitrator exceeded his authority, because the arbitration award was a product of collusion, because the trial court failed to follow the law, and because then-due process rights were violated. Arizona Revised Statutes § 12-3023(A)(1), (4) (Supp. 2014) provides that, among other reasons, an arbitration award shall be vacated if “[t]he award was procured by corruption, fraud or other undue means,” or if “[a]n arbitrator exceeded the arbitrator’s powers.” “The superior court may reject an arbitration award only on narrow statutorily enumerated grounds....” Nolan v. Kenner, 226 Ariz. 459, 461, ¶ 5, 250 P.3d 236, 238 (App.2011). Here, for reasons discussed above, the arbitrator did not exceed his authority in concluding that Katie’s debt to Law Firm was a marital debt. There also was no probative evidence of collusion. Law Firm represented Katie successfully in her action to protect the marital assets. Katie and Law Firm stipulated that Law Firm should be awarded a judgment for its reduced hourly fees and costs for its representation. Because the stipulated award did not amount to collusion, we find no error. ¶ 24 Although appellants were not parties to the arbitration and did not get to participate in the arbitration proceeding, due process was satisfied because Frank and Trustee were joined in the action to confirm the award and were allowed to object to it. Additionally, the trial court stated that the declaratory judgment was “subject to further order of the Missouri Family Court.” It remains for the Missouri family court to divide the marital estate. F. Appellants’ Affirmative Defenses ¶ 25 Appellants assert that the judgment failed to address their affirmative defenses regarding the scope and enforceability of the contingent fee component of Katie’s modified fee agreement with Law Firm, and there are issues of fact pertaining to the contingency fee. The declaratory judgment appealed from here awarded Law Firm a judgment for half its hourly fees and costs and did not address Law Firm’s contingency fee. Accordingly, we do not decide whether there were issues of fact with regard to the contingency fee. G. Attorneys’ Fees and Costs ¶ 26 Appellants request their attorneys’ fees and costs pursuant to A.R.S. § 12-341.01 (2006). Law Firm requests its reasonable costs pursuant to Arizona Rule of Civil Appellate Procedure 21. We deny appellants’ request and award Law Firm its costs subject to its compliance with Rule 21. CONCLUSION ¶ 27 For the foregoing reasons, we affirm the decision of the trial court. . The civil case was consolidated with the probate case. . In its July 2009 ruling, the Missouri court determined that Arizona had exclusive authority to determine trust-related issues, including whether Katie had any interest in the trusts. In September 2013, the Missouri court ruled on Katie’s second motion for joinder and granted the motion to join Trustee and the trusts as indispensable and necessary third parties. In doing so, the Missouri court observed that it had only denied the first motion until the Arizona court determined whether Katie had a "possible interest” in the trusts, because ”[o]nly then [could the Missouri court] determine whether complete relief in the dissolution case [could] be afforded without the joinder of additional parties." The court concluded that since the Arizona appellate process had been completed as of June 2013, there was no reason for it to continue to abstain from ruling on Katie's second motion for joinder. . The court determined, however, that pursuant to the trust language, Katie had ceased to be a beneficiary of the trusts upon Frank and Katie's separation. . The arbitration concerned a portion of Law Firm's claimed fees; a second arbitration was set to determine Law Firm's contingent fee rights. . On April 24, 2013, Frank filed a motion for declaratory judgment in the Missouri family court, requesting that the Missouri court "communicate to the [s]uperior court of Maricopa County, Arizona that the authority of a court with regard to marital debt is limited to the ability to assign one spouse the primary duty of paying said debt and holding the other party harmless.” On Katie’s motion, the Missouri court dismissed the motion for declaratory judgment, agreeing it was an impermissible collateral attack on the Arizona court’s judgment. . Appellants’ reliance on Williams v. Frisbee, 419 S.W.2d 99, 102 (Mo.1967), and In re Standage v. Standage, 147 Ariz. 473, 477, 711 P.2d 612, 616 (App.1985), is misplaced. In Williams, the Missouri Supreme Court determined that a heneficiaiy’s creditor could not garnish a terminated Missouri spendthrift trust to satisfy the creditor’s claims against the beneficiary until the trust assets were distributed. 419 S.W.2d at 102. In Standage, we affirmed an Arizona family court's order distributing the assets of a wholly owned corporation because creditor rights would not be improperly impacted. 147 Ariz. at 477, 711 P.2d at 616. Here, however, the trust assets were properly determined to be assets of Frank and Katie's marital estate, not assets belonging to either one of them. . See A.R.S. § 25-215(D) (2006) (in an action on a debt or obligation contracted for marital benefit, both spouses must be joined).

OPINION SWANN, Judge: ¶ 1 Tri City National Bank (“TCNB”) petitions for special action relief from the superi- or court’s order granting Real Parties in Interest’s (“the Gradys’ ”) motion for stay of execution of a Forcible Entry and Detainer (“FED”) judgment, pending appeal of the superior court’s order denying the Gradys’ Motion to Set Aside Judgment. We accept jurisdiction and grant relief. We hold that because the Gradys are appealing a judgment denying their Motion to Set Aside, the trial court abused its discretion when it granted a stay of execution of a judgment other than the judgment being appealed, in violation of ARCAP 7. FACTS AND PROCEDURAL HISTORY ¶ 2 In 2008 the Gradys entered into a Note and Deed of Trust on their Paradise Valley home with TCNB’s predecessor, Bank of Elmwood (“BOE”). The Gradys defaulted on their obligations and were notified of the default and advised on how to cure it in early 2009. The Gradys failed to cure the default and instead sued BOE and sought an injunction to prevent a trustee’s sale of the property. Eventually the sale was allowed to go forward and TCNB became the owner of the property in October 2012 as the successful bidder at the sale. Shortly thereafter, TCNB demanded that the Gradys vacate the property, but they have yet to do so. ¶ 3 In November 2012, TCNB filed an action for FED pursuant to A.R.S. § 12-1173.01 to remove the Gradys from the prop erty. The Gradys eventually filed an Answer to TCNB’s Complaint, alleging affirmative defenses relating to the propriety of the sale and title to the property. TCNB then filed a Motion for Judgment on the Pleadings, which the trial court granted. The Gradys appealed that final judgment to this court, and we affirmed. Tri City Natl. Bank v. Grady, No. 1 CA-CV 13-0077, 2014 WL 1117072 (Ariz. App. Mar.20, 2014) (mem. decision). The Supreme Court denied review in September 2014. ¶ 4 Meanwhile, the Gradys also filed a Petition for Special Action challenging the superior court’s order denying their request for a stay of execution of the FED judgment pending appeal. It was in the resulting opinion that this court held A.R.S. § 12-1182(B) “requires] the superior court to stay execution of an FED judgment pending appeal when the party in possession posts a bond conditioned on prosecuting the appeal ‘to effect’ and in an amount sufficient to cover rental value and all awarded damages, costs, and rent.” Grady v. Barth, 233 Ariz. 318, 322, ¶ 18, 312 P.3d 117 (App.2013). ¶ 5 Once the Supreme Court denied the Gradys’ petition for review, TCNB requested that the trial court issue a Writ of Restitution, terminate the stay of execution of the FED judgment, and release the proceeds of the supersedeas bond to TCNB as the prevailing party on appeal. In response, the Gradys filed a “Motion for Abeyance of Proceedings and for Continuation of Supersede-as Bond or, In the Alternative, Motion to Set Aside Judgment.” On October 16, 2014, the trial court denied the Gradys’ motion in an unsigned minute entry and issued a final signed order granting TCNB’s application for issuance of the Writ of Restitution, terminating the stay of execution of the FED judgment that was entered in May 2013, and releasing the bond proceeds. ¶ 6 Undeterred, the Gradys filed a Notice of Appeal from “the Order entered on October 16, 2014” in favor of TCNB. However, because the signed order entered on October 16, 2014, did not address the court’s denial of the Gradys’ Motion for Abeyance/Motion to Set Aside Judgment, the Gradys amended their notice of appeal and now appeal from “the Order executed and entered nunc pro tunc on November 17, 2014 with the intent it be deemed effective as of October 16, 2014.” The signed order entered on November 17, 2014, was the order denying the Gradys’ Motion for Abeyance/Motion to Set Aside Judgment. The Gradys also filed a motion for stay of execution of the original FED judgment pending appeal of the order denying their Motion for Abeyance/Motion to Set Aside, which the trial court granted. The court found that it had no discretion to deny the stay under this court’s decision in Grady v. Barth. TCNB then filed this Petition for Special Action arguing that the trial court did have discretion to deny the stay of execution of the FED judgment. JURISDICTION AND STANDARD OF REVIEW ¶ 7 We accept special action jurisdiction because TCNB does not have an equally plain, speedy, and adequate remedy by appeal and this case presents an issue of statewide importance. Levinson v. Jarrett, 207 Ariz. 472, 474, ¶ 5, 88 P.3d 186 (App.2004); Montgomery v. Whitten, 228 Ariz. 17, 19, ¶ 6, 262 P.3d 238 (App.2011). ¶ 8 TCNB has no equally plain, speedy, and adequate remedy by appeal. The order granting TCNB an FED judgment has already been upheld on appeal. With clean title, the fair market rental value of the property is $6,000 per month. However, because of the cloud on title the Gradys themselves created, the trial court discounted the rental value to $3,500, which is all the Gradys are required to pay toward the required bond. Put simply, the Gradys are receiving a continuing unjust benefit through procedural gamesmanship. ¶ 9 The issue TCNB raises is a pure question of law. In Grady v. Barth, we extended the holding in Tovar v. Superior Court (Hill), 132 Ariz. 549, 647 P.2d 1147 (1982), and held that A.R.S. § 12-1182(B) requires the superior court to stay execution of an FED judgment pending appeal when a tenant at sufferance is in possession after a trustee’s sale. 233 Ariz. at 322, ¶ 18, 312 P.3d 117. At issue in this special action is whether the superior court abused its discretion when, by applying this court’s decision in Grady, it ordered a stay of execution of a judgment not currently pending appeal. ¶ 10 Because the decision to stay the execution of a judgment pending appeal is discretionary, we review the court’s decision to grant a stay for abuse of discretion. See Tonnemacker v. Touche Ross & Co., 186 Ariz. 125, 130, 920 P.2d 5 (App.1996) (holding that although the trial court did not have discretion to dismiss the action, it did have discretion to stay the action); F.C.Y. Constr. & Equip. Co. v. Superior Court (Harrison, Inc.), 24 Ariz.App. 596, 597, 540 P.2d 722 (1975) (concluding that the trial court “in its discretion, may grant a stay”). DISCUSSION ¶ 11 Both the Gradys and TCNB exclusively argue whether the stay granted by the superior court was discretionary under ARPEA 17(c), A.R.S. §§ 12-1182 and 33-361 and our decision in Grady. In our view, the real issue is whether the trial court had the authority to stay execution of a judgment not currently pending appeal. We hold that it did not. ¶ 12 In Tovar the Supreme Court held that “upon a tenant’s appeal from an order terminating possession of commercial property in a forcible entry and detainer action, the trial court must set bond and grant a stay.” 132 Ariz. at 551, 647 P.2d 1147 (footnote omitted). And in Grady, this court held that “the rule adopted in Tovar—that a tenant in possession may obtain a stay pending appeal by posting a bond meeting the requirements of A.R.S. § 12-1182(B)—applies with equal force to a tenant at sufferance who is in possession after a trustee’s sale.” 233 Ariz. at 321, ¶ 13, 312 P.3d 117. However, the Gradys’ most recent appeal is not an appeal from the FED judgment—that appeal was already decided by this court. Rather, the Gradys are appealing the trial court’s order denying their Motion for Abeyanee/Motion to Set Aside Judgment as a special order made after final judgment pursuant to Ariz. R. Civ. P. 60(c) and A.R.S. § 12-2101(A)(2). A stay of execution of the FED judgment was inappropriate here because a stay can only be granted of the judgment that is being appealed. Because the Gradys are appealing from the court’s order denying their Motion for Abeyanee/Motion to Set Aside, therefore, the trial court could only grant a stay of execution of that judgment. And a stay of the court’s order denying the Gradys’ Motion to Set Aside would not stay execution of the original FED judgment itself, nor would it allow the Gradys to remain in possession of the property—it would merely leave the motion pending. ¶ 13 The plain language of the rules and statutes governing stays of execution of judgment makes clear that a court’s power to stay a judgment pending appeal extends only to the judgment being appealed. The governing rule here is ARCAP 7(b), which at the time this special action was commenced provided that “[w]hen a supersedeas bond, as stipulated or as ordered by the court, is filed, and all other conditions imposed by the court have been complied with, the execution of the judgment appealed from and all further proceedings thereon shall be stayed.” (Emphasis added.) Furthermore, A.R.S. § 12-1182 provides that in an FED action, “[t]he appeal, if taken by the party in possession of the premises, shall not stay execution of the judgment unless the superior court so orders.” This language does not refer to a stay of any judgment beyond the FED judgment itself. ¶ 14 The trial court only had the authority to stay execution of the judgment on appeal, and the judgment on appeal is the court’s order denying the Gradys’ Motion for Abey ance/Motion to Set Aside. There was no procedural avenue available for the trial court to stay execution of the FED judgment that was already upheld on appeal, and the court erred in doing so. CONCLUSION ¶ 15. For the reasons set forth above, we accept jurisdiction and grant relief. . Because TCNB's FED action against the Gradys did not arise out of a landlord-tenant dispute, A.R.S. § 33-361 is not applicable here. See Grady, 233 Ariz. at 321, ¶ 13, 312 P.3d 117. . After TCNB filed this petition, ARCAP 7(b) was amended and now provides, "If an appellant files a supersedeas bond as stipulated or as ordered by the superior court, and if the appellant has complied with all other conditions imposed by the superior court, then this Rule automatically stays enforcement of, and execution on, the judgment and all proceedings related to the execution on the judgment.” ARCAP 7(b)(1). However, this change was not substantive and does not affect the outcome of this special action.

OPINION VÁSQUEZ, Judge: ¶ 1 Richard and Gwenyth Gallagher and their daughter Jane Doe Gallagher appeal from the trial court’s summary judgment dismissing their negligence claims against Tucson Unified School District (TUSD). They argue the court erred by concluding A.R.S. § 12-820.05 provided TUSD immunity “for its own negligence with respect to the hiring and supervision of [its employee,] Michael Corum.” For the reasons that follow, we affirm. Factual and Procedural Background ¶ 2 “In reviewing a grant of summary judgment, we view the evidence and reasonable inferences ‘in the light most favorable to the party opposing the motion.’ ” Cannon v. Hirsch Law Office, P.C., 222 Ariz. 171, ¶ 7, 213 P.3d 320, 323 (App.2009), quoting Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, ¶ 13, 38 P.3d 12, 20 (2002). In October 2005, Corum applied for a job with TUSD as an exceptional education teaching assistant. In his application, Corum listed his most recent employers, including Carondelet Health Network. Rosali na Armijo, a principal of a TUSD school, hired Corum. In a deposition, Armijo testified that she “remember[ed] contacting [Co-rum’s] employers,” but no documentation of those calls could be found. It was determined later that Carondelet had terminated Corum’s employment after he “touched [a patient] inappropriately in the vaginal area and made remarks to her that she felt moist.” ¶ 3 During his employment with TUSD, Corum transferred to Mary Meredith K-12 School, which serves “students that primarily have profound emotional disabilities.” In March 2011, the Tucson Police Department (TPD) began investigating Corum after learning that his son had found child pornography on Corum’s computer. Shortly thereafter, Corum requested a leave of absence from Mary Meredith because of a “[s]erious illness.” TPD then contacted the principal of Mary Meredith, Terri Polan, who helped officers identify the child depicted in an image on Corum’s computer as Jane Doe Gallagher, a “non-verbal and almost non-communicative” TUSD special needs student. ¶ 4 When Corum returned for work at the end of his leave in August 2011, Polan sent him home and called TPD for an update on the criminal investigation. Corum was arrested that same day. Pursuant to a plea agreement, Corum ultimately was convicted of attempted secretly viewing or recording another person without consent. ¶ 5 In February 2012, the Gallaghers initiated this action against Corum, his wife, and TUSD. In their amended complaint, the Gallaghers alleged that TUSD was vicariously liable for Corum’s acts and directly negligent in hiring and supervising him. TUSD filed a motion for summary judgment based on § 12-820.05(B), arguing the statute provided immunity to public entities for the felonious conduct of employees. The Gallaghers argued that § 12-820.05(B) does not apply when the entity knows of the employee’s propensity for such conduct, and that TUSD had constructive knowledge of Co-rum’s past. The trial court denied the motion, but on special action review, this court reversed, holding that the exception to § 12-820.05(B) immunity would apply only if TUSD had actual knowledge of Corum’s propensity. Tucson Unified Sch. Dist. v. Borek, 234 Ariz. 364, ¶¶ 8-12, 322 P.3d 181, 184-85 (App.2014). ¶ 6 Following the special action, TUSD renewed its motion for summary judgment, which the trial court granted. The court then entered a final judgment in favor of TUSD pursuant to Rule 54(b), Ariz. R. Civ. P. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1). Immunity ¶ 7 The Gallaghers maintain § 12-820.05(B) does not “provide TUSD with absolute immunity for its own negligence with respect to the hiring and supervision of ... Corum.” Accordingly, they assert that the trial court erred by granting summary judgment in favor of TUSD on those claims. ¶ 8 Summary judgment is appropriate “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). Thus, a trial court should grant summary judgment “if the facts produced in support of the claim ... have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim.” Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). We review de novo whether there is a genuine dispute as to a material fact and whether the trial court erred in applying the law. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 8, 965 P.2d 47, 50 (App.1998). ¶ 9 The issue presented here involves the interpretation of § 12-820.05(B), which provides, in pertinent part: “A public entity is not liable for losses that arise out of and are directly attributable to an act or omission determined by a court to be a criminal felony by a public employee unless the public entity knew of the public employee’s propensity for that action.” We review issues of statutory interpretation de novo. Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, ¶ 30, 296 P.3d 42, 50 (2013). “Our primary goal in interpreting a statute is to give effect to the legislature’s intent, and the language of a statute is the most reliable evidence of that intent.” MacKinney v. City of Tucson, 231 Ariz. 584, ¶ 7, 299 P.3d 1282, 1285 (App.2013). Accordingly, if the language is clear and unambiguous, we apply it as written. Hourani v. Benson Hosp., 211 Ariz. 427, ¶ 7, 122 P.3d 6,10 (App.2005). ¶ 10 By its clear and unambiguous language, § 12-820.05(B) insulates a public entity from liability for loss caused by an employee’s felony criminal acts. ‘“Loss’ is commonly defined as the difference between what was had before and after a specified event.” Town of Gilbert Prosecutor’s Office v. Downie, 218 Ariz. 466, ¶ 11, 189 P.3d 393, 396 (2008). Similarly, Webster’s defines “loss” as “the harm or privation resulting from losing or being separated from something or someone.” Webster’s Third New Int’l Dictionary 1338 (1971). “Losses” can be those that arise from physical injury to persons and property, or they can be purely economic. See Flagstaff Affordable Hous. Ltd. P’ship v. Design Alliance, Inc., 223 Ariz. 320, ¶¶ 1, 11-12, 223 P.3d 664, 665, 667 (2010). ¶ 11 Section 12-820.05(B) simply refers to “losses” — it does not include any language that would limit the types of loss covered by the statute. That term therefore encompasses TUSD’s liability for the injuries from which the Gallaghers seek to recover, including “anxiety, reasonable expenses for medical intervention or other professional assistance, loss of consortium, loss of enjoyment of life and breach of privacy experienced and reasonably probable to experience in the future.” ¶ 12 Moreover, § 12-820.05(B) does not include any language that would limit the public entity’s immunity based on the type of action or inaction by the entity that contributed to the injury. There is no distinction between the losses the Gallaghers seek to recover through their vicarious and direct liability claims. Under either theory, the damages “arise out of and are directly attributable to” Corum’s acts. § 12-820.05(B); see Kuehn v. Stanley, 208 Ariz. 124, ¶ 21, 91 P.3d 346, 352 (App.2004) (“For an employer to be held liable for the negligent hiring, retention, or supervision of an employee, a court must first find that the employee committed a tort.”). And, in the absence of a distinct injury caused by an employer, the damages recoverable under either claim are the same. See Torres v. Kennecott Copper Corp., 15 Ariz.App. 272, 273-74, 488 P.2d 477, 478-79 (1971); Restatement (Second) of Agency § 217B cmt. d (1958) (“If ... judgment is rendered against both [employer and employee] for a single harm, the judgment should be for the same amount....”). ¶ 13 The Gallaghers nevertheless rely on legislative history, policy arguments, comparisons with other statutes, and cases from other jurisdictions to support their interpretation of § 12-820.05(B). And, during oral argument, they explained that § 12-820.05(B) “is an example of a latent ambiguity,” which is “found in the interplay” of these authorities. But when the language of a statute is plain and clear on its face, it is unnecessary to infer ambiguity and employ other methods of interpretation. See Hobson v. Mid-Century Ins. Co., 199 Ariz. 525, ¶ 8, 19 P.3d 1241,1245 (App.2001). We therefore disagree with the Gallaghers’ arguments and conclude § 12-820.05(B) applies to the Gallaghers’ claims for negligent hiring and supervision. See Baker, 231 Ariz. 379, ¶ 30, 296 P.3d at 50. Knowledge of Propensity ¶ 14 The Gallaghers also argue “Material questions of fact exist” because “there is, at the very least, a jury question as to whether ... Armijo even called [Carondelet] or, if she did, made a ‘good faith’ effort to secure the necessary information regarding ... Corum’s performance.” Again, summary judgment is appropriate if the moving party has demonstrated that “no evidence existed to support an essential element of the claim.” Orme Sch., 166 Ariz. at 310, 802 P.2d at 1009. In other words, “the movant need not affirmatively establish the negative of the element.” Id. ¶ 15 Section 12-820.05(B) provides an exception to a public entity’s immunity when “the public entity knew of the public employee’s propensity for that action.” On special action review, this court rejected the Gallaghers’ argument that constructive knowledge of the employee’s propensity was sufficient for the exception to apply. Tucson Unified Sch. Dist., 234 Ariz. 364, ¶ 10, 322 P.3d at 185. We held that “§ 12-820.05(B) means exactly what it says — that immunity applies unless the public entity actually knew of the ‘employee’s propensity for that action.’ ” Id. We also noted, “The Gallaghers do not suggest that TUSD had actual knowledge of Corum’s purported propensity, and nothing in the record would support that conclusion.” Id. ¶ 12. ¶ 16 The Gallaghers now essentially reurge their constructive knowledge argument. They again assert that “constructive knowledge is sufficient for many common-law causes of action.” Id. ¶ 11. However, they fail to “explain why that is relevant to our interpretation of a plainly worded statute.” Id. Thus, we decline to address this argument further. See Ctr. Bay Gardens, L.L.C. v. City of Tempe City Council, 214 Ariz. 353, ¶ 17, 153 P.3d 374, 377-78 (App.2007) (“law of the case” rule applies when “the facts and issues are substantially the same as those on which the first decision rested”). ¶ 17 The Gallaghers also attempt to rally evidence to demonstrate that Armijo, the principal who hired Corum, did not contact Corum’s previous employer in violation of A.R.S. § 15-512. In particular, they point to the lack of any documentation from Carondelet indicating it had received a call from Armijo. However, the record shows that Carondelet “does not maintain a record of reference requests from third-parties.” See Orme Sch., 166 Ariz. at 310, 802 P.2d at 1009. And, in any event, this assertion does not support the Gallaghers’ position; if Armijo never contacted Carondelet, then she did not have actual knowledge of Corum’s propensities. See § 12-820.05(B). We thus conclude the trial court did not err in granting TUSD’s motion for summary judgment. See Bothell, 192 Ariz. 313, ¶ 8, 965 P.2d at 50. Disposition ¶ 18 For the foregoing reasons, we affirm. TUSD requests its “attorney’s fees and costs incurred in defending this matter.” However, it has failed to cite any authority to support its request for fees. See Ezell v. Quon, 224 Ariz. 532, ¶¶ 29-31, 233 P.3d 645, 652 (App.2010) (“[T]he request must state the claimed basis for the award.”). Nonetheless, as the prevailing party on appeal, TUSD is entitled to its taxable costs upon compliance with Rule 21(b), Ariz. R. Civ.App. P. . The claims against Corum and his wife still were pending before the trial court at the time of this appeal. . The Gallaghers do not challenge the trial court’s dismissal of their vicarious liability claims against TUSD. . Section 15-512(F) requires TUSD to "make documented, good faith efforts to contact previous employers of a person to obtain information and recommendations that may be relevant to a person’s fitness for employment.” Based on § 15-512, the Gallaghers maintain TUSD essentially is being rewarded for failing to do something required by statute. However, that statute provides its own penalties for failing to meet its requirements. Subsection (K) provides: The superintendent of a school district or chief administrator of a charter school or the person’s designee who is responsible for implementing the governing board’s policy regarding background investigations required by subsection F of this section and who fails to carry out that responsibility is guilty of unprofessional conduct and shall be subject to disciplinary action by the state board. And, notably, § 15-512 contains its own immunity provision. Subsection (J) provides: A school district that relies on information obtained pursuant to this section in making employment decisions is immune from civil liability for use of the information unless the information obtained is false and the school district knows the information is false or acts with reckless disregard of the information's truth or falsity.

Chief Justice BALES, opinion of the Court. ¶ 1 This automatic appeal arises from Andre Michael Leteve’s convictions and death sentences for murdering his two young sons. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. §§ 13-1031 and 13-033(A)(1). BACKGROUND ¶ 2 Leteve married Laurie in 1998. They had two sons: Alec in 2004 and Asher in 2008. After Leteve revealed a series of marital infidelities, Laurie moved out of their home in August 2009 and filed for divorce two months later. On the day Laurie filed for divorce, Leteve bought a handgun. In the following months, he retaliated against Laurie in several ways. Events tragically culminated in late March 2010, when Alec and Asher were staying at Leteve’s home. On the morning of March 31, Leteve called 911 to report that he had killed his two sons and attempted to commit suicide. When police arrived, they found each child shot to death, and Leteve had a gunshot wound to his face. He repeated that he had shot his sons. Police also found a letter to Laurie that Leteve had prepared days earlier. It ended by saying, “Enjoy the rest of your life without us.” ¶ 3 A jury found Leteve guilty of two counts of first degree murder. The jury also found three aggravating circumstances: Leteve had committed the murders in an especially heinous or depraved manner, he was convicted of multiple homicides committed on the same occasion, and each victim was under the age of fifteen. A.R.S. §§ 13—751(F)(6), (F)(8), (F)(9). Considering these factors and the mitigation evidence, the jury sentenced Leteve to death for each murder. DISCUSSION A. Admissibility of Leteve’s Statements to Police at His Home ¶ 4 Statements made by a suspect during custodial interrogation generally are not admissible unless preceded by the warnings required by Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Leteve argues that the trial court erred by admitting statements he made to police officers at his home before he was given Miranda warnings. We reject this argument because the statements were admissible under the “public safety” exception to the Miranda rule recognized in New York v. Quarles, 467 U.S. 649, 656, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). ¶ 5 Just after he killed his sons, Leteve shot himself in the chin and the bullet exited through his nose. These wounds made it difficult for the 911 operator to understand him. When he tried to tell her that he had shot his sons, ages one and five, the operator understood him to say that he had shot one son, age fifteen. She relayed this information to the police. ¶ 6 When the police arrived at Leteve’s home, they saw Leteve bleeding profusely from his face and a young child lying on a couch. For safety reasons, Leteve was handcuffed and questioned by two officers. One officer asked Leteve if he had killed the child on the couch, and Leteve nodded up and down. As officers inspected the child, they asked Leteve where he had shot the child and he said, “In the back of the head.” ¶ 7 A second officer opened Leteve’s shirt to check for other injuries, asking Leteve what had happened. Leteve responded that he had shot his children. The officer asked where his children were and Leteve said one was on the couch and the other was upstairs. The officer asked Leteve to be more specific, and he said the second child was in the crib. When the officer asked Leteve where he had shot his children, Leteve again said, “In the back of the head.” The officer asked Leteve what had happened to him, and Leteve answered that he had shot himself in the chin, lifting his head to show the officer the injury. The officer asked if anyone else was home, and Leteve said no. Noting Leteve’s wedding ring, the officer asked, “Where is your wife?” Leteve answered, “At work.” The officer then asked, “Why did you do this?” Leteve replied, “I don’t know.” ¶ 8 Leteve moved to suppress these statements, arguing that they were involuntary and made before he received Miranda warnings. The trial court ruled that the statements were voluntary and, except for Leteve’s answer to the final question, admissible under Quarles. (At trial, after the State introduced evidence of Leteve’s other statements, Leteve elicited through cross-examination that he had said “I don’t know” when asked why he had done this.) On appeal, Leteve argues only that his statements were admitted in violation of Miranda; the State does not dispute that he was in custody and being questioned when he made the statements. ¶ 9 Under Quarles, a suspect’s statements made in response to “questions necessary to secure [the officers’] own safety or the safety of the public” are admissible even if Miranda warnings have not been given. 467 U.S. at 659, 104 S.Ct. 2626. Whether questioning falls within the public safety exception turns on “whether there was an objectively reasonable need to protect the police or the public from any immediate danger.” State v. Ramirez, 178 Ariz. 116, 124, 871 P.2d 237, 245 (1994) (quoting United States v. Brady, 819 F.2d 884, 888 n. 3 (9th Cir.1987)). ¶ 10 Here, the officers reasonably asked questions to assess what had occurred (particularly given their misimpression that Leteve had reported shooting one fifteen-year-old child), to determine the nature of the injuries to those present, and to identify any remaining threats. The only question that might be characterized as “designed solely to elicit testimonial evidence from a suspect,” Quarles, 467 U.S. at 659, 104 S.Ct. 2626, was the police asking Leteve why he had committed the murders. Leteve, having himself introduced his response at trial, cannot object on appeal to its admission. The trial court did not abuse its discretion in admitting evidence of Leteve’s other statements to officers at his home. B. Admissibility of Evidence of Leteve’s Other Acts ¶ 11 Leteve argues that the trial court abused its discretion in admitting other acts evidence under Arizona Rule of Evidence 404(b). That rule precludes evidence of “other crimes, wrongs, or acts” to prove the character of a defendant or “action in conformity therewith.” Ariz. R. Evid. 404(b). Such evidence may be admissible, however, for other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. When other acts evidence is offered for a non-propensity purpose under Rule 404(b), it is also subject to Rule 402’s relevance test, Rule 403’s balancing test, and Rule 105’s requirement that certain limiting jury instructions be given. State v. Ferrero, 229 Ariz. 239, 242 ¶ 12, 274 P.3d 509, 512 (2012). ¶ 12 The trial court admitted evidence of Leteve’s other acts to show Leteve’s intent or motive. Leteve did not object to the admission of two notes he wrote to Laurie contemporaneously with the killings. In the first, Leteve predicted that “This should fuck you up for a good long time to come,” and admonished that “none of this had to happen this way if you had made the effort.” The second note, left at the scene of the shootings and signed by both Leteve and Alec, said “For everything you get in life, you must give something up. I wonder if you’ll understand what price you’ll have paid for your freedom?” ¶ 13 Leteve objects to evidence of various other acts reflecting that he killed his sons out of long-seething anger with Laurie and in retaliation against her. These acts include Leteve’s telling Laurie and others before their separation about his several extramarital affairs, Leteve’s calling police in July 2009 in an attempt to have Laurie removed from their home, Laurie’s obtaining an order of protection a few weeks later, and police serving Leteve at his home with the order. A babysitter testified that when she was helping Laurie move out in August 2009, Leteve called Laurie and said, “I will find you guys” and something about having “a GPS system on the car.” ¶ 14 After Laurie moved out and filed for divorce, she began dating A.M., who worked with her at a hospital. One week before the murders, Leteve sent a dozen roses, accompanied by a note purportedly written by A.M. to Laurie, to the hospital’s administrator responsible for human resources. Evidently, Leteve was attempting to create problems at work for Laurie. In the days before the murders, Leteve also sent both Laurie and A.M. an email along with a sexually explicit video that Leteve and Laurie had made during their marriage. Leteve also obtained background checks on A.M. and A.M.’s ex-wife. ¶ 15 Finally, the State presented evidence that Leteve had substantial debt and little or no money in his bank account at the time of the murders. This evidence, the State argues, was relevant to explain why Leteve would attempt to kill himself after murdering his sons. ¶ 16 The challenged other acts evidence was admissible under Rule 404(b) to show Leteve’s intent or motive. Leteve unpersuasively argues that his retaliatory actions against Laurie should not have been admitted because she was not the murder victim. We have long recognized that evidence of prior ill will or difficulties between a defendant and a murder victim may be relevant to show motive or premeditation. See, e.g., State v. Wood, 180 Ariz. 53, 62, 881 P.2d 1158, 1167 (1994); State v. Jeffers, 135 Ariz. 404, 418, 661 P.2d 1105, 1119 (1983). Here, the past difficulties between Leteve and Laurie were similarly relevant to his intent and motive in killing their sons. Evidence of Leteve’s financial difficulties was relevant to his motive in attempting to commit suicide and to establishing that the killings were planned. See State v. DePiano, 187 Ariz. 41, 46, 926 P.2d 508, 513 (App.1995), vacated in part, 187 Ariz. 27, 926 P.2d 494 (1996). ¶ 17 We further conclude that the trial court did not abuse its discretion in ruling, under Rule 403, that the probative value of the other acts evidence was not substantially outweighed by the danger of unfair prejudice or needlessly presenting cumulative evidence. The trial court properly instructed the jury on the limited purposes for which the other acts evidence could be considered, thus mitigating any prejudicial impact. See State v. Villalobos, 225 Ariz. 74, 80 ¶ 20, 235 P.3d 227, 233 (2010). C. Trial Court Rulings Limiting Leteve’s Mental Health and Prescription Drug Use Evidence and Denying a Mistrial ¶ 18 Leteve claims that he was prevented from introducing certain admissible evidence that he lacked the mens rea necessary to commit first degree murder. We review a trial court’s rulings on the admission of evidence for abuse of discretion. State v. Davolt, 207 Ariz. 191, 208 ¶ 60, 84 P.3d 456, 473 (2004). We review questions of law related to the admissibility of evidence de novo. State v. Moran, 151 Ariz. 378, 381, 728 P.2d 248, 251 (1986). Although the trial court erred in excluding some evidence, we hold that the error was harmless beyond a reasonable doubt. See State v. Ellison, 213 Ariz. 116, 131 ¶ 51, 140 P.3d 899, 914 (2006). 1. Observation Evidence ¶ 19 At trial, Leteve sought to introduce testimony by his parents and by his psychological expert, Dr. Rafael Morris, to show his character trait for impulsivity. He contends that this evidence was properly admissible as “observation evidence” under Clark v. Arizona, 548 U.S. 735, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006), and State v. Christensen, 129 Ariz. 32, 628 P.2d 580 (1981), and would have rebutted the State’s premeditation evidence. ¶ 20 The legislature has not provided for, and this Court has refused to allow, an affirmative defense of diminished capacity. See A.R.S. § 13-502(A); State v. Schantz, 98 Ariz. 200, 212-13, 403 P.2d 521, 529 (1965). As a result, “Arizona does not allow evidence of a defendant’s mental disorder short of insanity either as an affirmative defense or to negate the mens rea element of a crime.” State v. Mott, 187 Ariz. 536, 541, 931 P.2d 1046, 1051 (1997). ¶ 21 We have, however, allowed a defendant to offer “evidence about his behavioral tendencies” to show “that he possessed a character trait of acting reflexively in response to stress.” Id. at 544, 931 P.2d at 1054 (citing Christensen, 129 Ariz. at 34, 628 P.2d at 582). Such evidence has been termed “observation evidence” by the United States Supreme Court. Clark, 548 U.S. at 757, 126 S.Ct. 2709. That Court distinguished “observation evidence” from “mental-disease evidence,” which is “opinion testimony that [the defendant] suffered from a mental disease with features described by the witness," and “capacity evidence” which concerns a defendant’s “capacity to form mens rea,” both of which are prohibited by Arizona law. Id. at 757-59, 126 S.Ct. 2709. ¶ 22 At a pretrial hearing, Leteve argued that Dr. Morris and Leteve’s parents had observed his character trait for impulsivity and that their testimony was thus admissible observation evidence under Clark. The trial court flatly prohibited any testimony from Dr. Morris, reasoning that he had only interviewed Leteve after the murders and that his testimony would be relevant only to a diminished capacity defense. Because Leteve’s parents had observed Leteve around the time of the murders, the trial court permitted them to testify about Leteve’s impulsivity, but limited that testimony to events occurring the night before and the day of the murders. ¶ 23 Leteve does not dispute that Arizona law prohibited Dr. Morris from testifying that he lacked the capacity to form the mens rea for first degree murder or that he acted impulsively when he shot his children. As we said in Christensen, “[a]n expert witness may not testify specifically as to whether a defendant was or was not acting reflectively at the time of a killing.” 129 Ariz. at 35-36, 628 P.2d at 583-84. But we also acknowledged that a defendant who can show that he has a character trait for acting without reflection presents a fact that makes it more likely that he acted impulsively at the time of the murders. Id. at 35, 628 P.2d at 583. ¶ 24 That Dr. Morris did not observe Leteve’s character trait on the night before or the day of the murders is not dispositive. In Christensen, we found that an expert witness who “had interviewed [the defendant] and had reviewed tests which had been administered to him” after the crimes should have been allowed to testify. Id. at 34, 628 P.2d at 582. Because Dr. Morris would have testified that Leteve had a general character trait for impulsivity, and not that he acted impulsively at the time of the murders, the trial court erred by excluding the testimony merely because the expert’s observations were not contemporaneous with the crime. Were we to uphold such a restriction, it would effectively prohibit a defendant from offering any expert testimony about general behavioral characteristics that relate to the issue of premeditation, in contravention of Christensen. 129 Ariz. at 35, 628 P.2d at 583. The trial court likewise erred by placing temporal restrictions on the observation testimony by Leteve’s parents. ¶ 25 Although the trial court erred, we will not reverse if the error was harmless. In deciding whether error is harmless, the question “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.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). “We must be confident beyond a reasonable doubt that the error had no influence on the jury’s judgment.” State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). ¶ 26 Leteve offered the precluded observation evidence to rebut the premeditation element of first degree murder. “To prove premeditation, the state must establish actual reflection and more than mere passage of time, but it may do so with all the circumstantial evidence at its disposal in a case.” State v. Boyston, 231 Ariz. 539, 551 ¶ 60, 298 P.3d 887, 899 (2013) (internal quotation marks omitted). Here, however, the evidence that Leteve reflected on the murders was overwhelming. On the day Laurie filed for divorce, he purchased the weapon he used to carry out the murders. He sent messages to Laurie that she would be alone and that “this will end badly.” When he killed his sons, he shot each in the back of the head through a pillow or blanket, and he had to walk about 100 feet after he shot Alee to then shoot Asher. Most significantly, he left several notes and letters, one of which was typed several days before the murders and signed both by Leteve and Alec. In short, even had evidence of Leteve’s character trait for impulsivity been admitted, no reasonable juror could have concluded that Leteve had not reflected on the killings before he committed them. Cf. Christensen, 129 Ariz. at 35, 628 P.2d at 583 (noting, in particular circumstances, that jury could have concluded from evidence of impulsivity that defendant did not premediate the homicide). Any error in excluding the evidence was harmless. 2. Prescription Drug Evidence ¶ 27 Leteve argues that the trial court erred by precluding evidence of his prescription drug use at the time of the murders, which Dr. Morris asserted exacerbated Leteve’s impulsivity. Leteve argues that this evidence should also have been admitted to rebut premeditation. The trial court ruled this evidence inadmissible because there was no proffered evidence that Leteve took the medication as prescribed. The only way to make the evidence admissible, the court reasoned, would be for Leteve himself to testify that he was properly taking his medication. ¶ 28 Arizona law prohibits the defense of voluntary intoxication “resulting from ... the abuse of prescribed medications.” A.R.S. § 13-503. Our court of appeals, however, has held that this statute “does not preclude the assertion of temporary intoxication arising from the non-abusive use of prescription medication to negate the requisite state of mind for a criminal act.” State v. McKeon, 201 Ariz. 571, 575 ¶ 20, 38 P.3d 1236, 1240 (App.2002). That court has also held that involuntary intoxication is not an affirmative defense that has been statutorily abrogated. State v. Edmisten, 220 Ariz. 517, 521 ¶ 8, 207 P.3d 770, 774 (App.2009). Though a patient may voluntarily take prescription drugs, intoxication as a result of such use may be involuntary so long as it is done pursuant to medical advice. See, e.g., People v. Garcia, 113 P.3d 775, 780 (Colo.2005); State v. Gardner, 870 P.2d 900, 902 n. 8 (Utah 1993); State v. Gilcrist, 15 Wash.App. 892, 552 P.2d 690, 692 (1976). Therefore, if Leteve could establish use of prescription drugs in accordance with a doctor’s instructions, he should have been allowed to present a defense of involuntary intoxication. ¶ 29 At trial, Leteve sought to introduce expert testimony derived from interviews with him about his use of prescription drugs, as well as circumstantial evidence in the form of testimony from others that he was taking prescription medication and pharmacy records identifying his prescribed medication. Although the best evidence of Leteve’s use of prescription drugs would have been his own testimony, we do not preclude a defendant from offering evidence to prove a fact solely because it is not the best evidence. See State v. Jones, 203 Ariz. 1, 7 ¶¶ 18-19, 49 P.3d 273, 279 (2002) (holding that oral testimony of confession, rather than audio recording of confession, was admissible at trial to prove defendant confessed); cf. People v. Hari, 218 Ill.2d 275, 300 Ill.Dec. 91, 843 N.E.2d 349, 361 (2006) (holding that involuntary intoxication instruction should have been given based on testimony of expert who had interviewed defendant). ¶ 30 Although the question is close, we hold that the trial court erred by precluding any evidence of the use of medication unless Leteve testified. This evidence would have been offered solely to show that Leteve did not premeditate the murders. As noted previously, see supra ¶ 26, the State presented overwhelming evidence that Leteve acted systematically and deliberately. Even had the prescription drug evidence been presented in conjunction with the observation evidence the defense offered, no reasonable juror could have found that the murders were not premeditated. The error, therefore, was harmless. 3. Waiver of Fifth Amendment Privilege to Exercise Sixth Amendment Right ¶ 31 Leteve also argues that the trial court improperly forced him to choose between waiving his Fifth Amendment privilege against self-incrimination by testifying that he had taken the medication as prescribed or waiving his Sixth Amendment right to present a defense by forgoing the medication evidence. Cf. Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (holding that forcing a defendant to either waive a valid Fourth Amendment claim or waive his Fifth Amendment privilege against self-incrimination is unconstitutional); Brooks v. Tennessee, 406 U.S. 605, 610-11, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972) (holding that a statute requiring defendant to testify, if at all, before any other defense witnesses is unconstitutional). We need not reach this issue because we have held that the exclusion of the prescription drug evidence was harmless error. 4. The Mistrial Motion ¶ 32 Leteve argues that the trial court erred by refusing to declare a mistrial during the penalty phase based on the testimony of the State’s expert witness, Dr. Edward Barbieri, who testified that the level of Lorazepam in Leteve’s system was within “low therapeutic levels.” Previously, during the pretrial hearing addressing the admission of Leteve’s prescription drug use, the State’s offer of proof regarding Dr. Barbieri’s testimony indicated that the levels were potentially outside the therapeutic range. Had the offer of proof been made accurately, Leteve argues, he could have called Dr. Barbieri as a witness during the guilt phase to lay the proper foundation for admission of the medication evidence because he would have testified that the level of Lorazepam in Leteve’s system immediately after the murders was within therapeutic levels. ¶ 33 “A declaration of a mistrial is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted.” State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983). We review the denial of a motion for a mistrial for abuse of discretion. State v. Kuhs, 223 Ariz. 376, 380 ¶ 18, 224 P.3d 192, 196 (2010). ¶ 34 At the pretrial hearing, the State made an offer of proof that Dr. Barbieri would testify that, although the Lorazepam in Leteve’s blood immediately following the murders was within therapeutic levels, the blood sample had been diluted by blood transfusions Leteve received during his treatment. Dr. Barbieri made the same assertion in his initial interview with the defense. No new information was presented during the penalty phase, and Dr. Barbieri did not alter his testimony from the testimony offered during the pretrial hearing. The trial court did not abuse its discretion by refusing to grant a mistrial. D. Jury Instruction Defining the (F)(6) Aggravator ¶ 35 Leteve argues that the trial court improperly instructed the jury that it need find only that he had a “parental relationship of trust” with the victim to determine that the murder was “heinous or depraved” for purposes of the (F)(6) aggravating factor. Relying on State v. Milke, 177 Ariz. 118, 126, 865 P.2d 779, 787 (1993), Leteve argues that the jury should have been instructed that it also had to find that the murder was senseless and the victim helpless. “[W]e review de novo whether a jury instruction correctly states the law,” State v. Zaragoza, 221 Ariz. 49, 53 ¶ 15, 209 P.3d 629, 633 (2009), but “we will not re verse a conviction unless the instructions, taken as a whole, misled the jurors,” Kuhs, 223 Ariz. at 384 ¶ 37, 224 P.3d at 200. ¶ 36 Under A.R.S. § 13-751(F)(6), a first degree murder is aggravated if “[t]he defendant committed the offense in an especially heinous, cruel or depraved manner.” We have identified five factors that can lead to a finding of heinousness or depravity: (1) relishing the murder; (2) infliction of gratuitous violence; (3) needless mutilation; (4) the senselessness of the killing; and (5) the helplessness of the victim. State v. Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983). The killing of a child satisfies the senselessness and helplessness factors. State v. Stanley, 167 Ariz. 519, 528, 809 P.2d 944, 953 (1991). But by themselves, these two factors generally will not render a murder especially heinous or depraved. State v. Wallace, 219 Ariz. 1, 6 ¶ 25, 191 P.3d 164, 169 (2008). ¶ 37 The State argues that Stanley recognized that a father’s murder of his own child “warrants a finding that the murder was committed in an especially depraved manner.” 167 Ariz. at 529, 809 P.2d at 954. But we noted in Stanley that the murder was senseless and involved a helpless victim. We have subsequently explained that using the parent-child relationship as “partial support” for an (F)(6) finding, along with helplessness and senselessness, “is constitutionally permissible.” See State v. Carlson, 202 Ariz. 570, 584 ¶ 55, 48 P.3d 1180, 1194 (2002) (observing that Milke approved the use of the parent-child relationship “in partial support of a finding of heinousness or depravity”). ¶ 38 The trial court thus erred by instructing the jury that it could find the (F)(6) aggravator based on the parental relationship alone. But the error was harmless because there was overwhelming evidence that the murders were senseless and the victims helpless. Cf. State v. Moore, 222 Ariz. 1, 14-15 ¶ 69, 213 P.3d 150, 163-64 (2009) (holding that, where jury was erroneously instructed that actual reflection was not required to prove premeditation for first degree murder, the error was harmless with respect to a murder for which there was overwhelming evidence of premeditation). Senselessness was incontrovertibly established because even if Leteve sought to retaliate against Laurie, it was unnecessary for him to murder his children to accomplish that goal. Cf. Milke, 177 Ariz. at 125, 865 P.2d at 786 (noting that “[tjhis crime most certainly was senseless in that it was unnecessary for [the defendant] to kill her son to free herself from the responsibility of being a single mother or to prevent the boy from growing up like his father”). Similarly, each murder involved a helpless victim: each was younger than six years old and apparently sleeping when killed. See Stanley, 167 Ariz. at 528-29, 809 P.2d at 953-54 (noting helplessness of five-year old victim was “apparent” because she was alone with her parents and twelve-month old brother and father had just shot mother). E. Preclusion of Prison Expert’s Testimony ¶ 39 During the penalty phase, Leteve sought to introduce testimony by Carson Williams, a former warden in the Department of Corrections, that Leteve would have a very difficult time in prison because of the notoriety of his crimes. The trial court did not abuse its discretion by precluding his testimony. ¶ 40 “A penalty phase jury may not be precluded from considering relevant mitigating evidence,” including a defendant’s potential for future rehabilitation and future dangerousness. Villalobos, 225 Ariz. at 82 ¶ 34, 235 P.3d at 235. Williams’ testimony would not address either of those factors, but would instead show generally the harsh conditions a child-killer might face in prison. Such speculative evidence does not constitute a mitigating circumstance because it is not specific to a defendant’s character, propensities, or prior record, nor does it go to the circumstances of his offense. Cf. A.R.S. § 13-75KG); Lockett v. Ohio, 438 U.S. 586, 604 n. 12, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Courts in other jurisdictions agree. See, e.g., People v. Quartermain, 16 Cal.4th 600, 66 Cal.Rptr.2d 609, 941 P.2d 788, 807 (1997); Bums v. Commonwealth, 261 Va. 307, 541 S.E.2d 872, 893 (2001). F. Rebuttal Testimony on Impact on Neighbors ¶ 41 Leteve argues that the trial court erred in admitting testimony of C.P., a former neighbor, about the impact of the murders on him and two other neighbors. We review the admission of evidence for abuse of discretion and constitutional and statutory interpretation issues de novo. State v. Nordstrom, 230 Ariz. 110, 114 ¶ 8, 280 P.3d 1244, 1248 (2012). ¶ 42 C.P.’s testimony was not offered as part of a victim impact statement. Instead, after Leteve presented mitigation, C.P. testified as a rebuttal witness. He told the jury that he lived two houses down from the Leteve home, had known Leteve and Laurie for two years, and had dined and otherwise socialized with them and other couples in the neighborhood. C.P. said that three days before the murders occurred, he and his adult son had talked with Leteve while C.P.’s three grandchildren played with Alec. C.P. said that although Leteve seemed “a little bit down and a little bit heavy,” from the strain of his divorce and financial issues, there “was no dramatic difference between him that day and what [C.P.] had seen in the months and years before that.” ¶ 43 The prosecutor then asked C.P. to recount events on the day of the murders. Defense counsel objected that this was improper rebuttal. The trial court overruled the objection. C.P. then described a telephone call with his wife, which culminated with his overhearing her and another woman reacting hysterically upon learning that Leteve had shot his children. C.P. further testified that another neighbor, Kathleen— who was close to Laurie, had children Ash-er’s age, and had given Laurie baby items to use — had been “hugely impacted” by the murders and had to be hospitalized for anxiety and panic attacks. When asked if the murders had been tough on him, C.P. emotionally responded that a year before the murders, his own adult son had suddenly died from an illness, and “so when I saw this, I could not get it. How someone could shoot their child. So it affected me deeply.” ¶ 44 After C.P. finished testifying, Leteve moved for a mistrial. The State argued that the testimony was appropriate rebuttal to emotional testimony by Leteve’s mother and grandmother about their love for Leteve. The trial court denied the motion for mistrial. In closing argument, the prosecutor urged the jury to sentence Leteve “to the appropriate punishment for what he did to these children, to the neighbors, to everyone who knew them.” The prosecutor did not otherwise mention the effect on the neighbors. The trial court instructed the jurors, and the prosecutor reminded them, that rebuttal evidence could not be considered as aggravation. ¶ 45 The issue here is whether the trial court abused its discretion by admitting the testimony about the effect of the murders on C.P. and the two other neighbors. Resolving this issue turns on whether the evidence was relevant to the jury’s determination whether to impose a death sentence, whether Arizona law bars evidence of a murder’s impact on non-family members, and, if not, whether the admission of this evidence was so unfairly prejudicial as to violate due process. ¶ 46 The challenged evidence does not involve “victim” impact testimony, which we have recognized is “limited to the ‘impact of the crime on the victim’s family.’ ” State v. Rose, 231 Ariz. 500, 512 ¶ 55, 297 P.3d 906, 918 (2013) (quoting Ariz. R.Crim. P. 19.1(d)(3)); see also A.R.S. § 13-752(S)(2) (“ “Victim’ means the murdered person’s spouse, parent, child, grandparent or sibling, any other person related to the murdered person by consanguinity or affinity to the second degree or any other lawful representative of the murdered person.... ”). Thus, C.P.’s testimony was not governed by our victims’ rights laws, but instead by A.R.S. §§ 13-751(C) and (G), and 13-752(G). ¶ 47 During the penalty phase, the state may offer evidence that is relevant to determining if the mitigation is sufficiently substantial to warrant leniency. See id. Irrespective of the mitigation evidence presented by the defendant, the state may present evidence of the circumstances of the crime. Nordstrom, 230 Ariz. at 114 ¶ 10, 280 P.3d at 1248 (noting that, taken together, A.R.S. §§ 13-751(G) and 13-752(G) “evince a legisla tive intent to permit the state to introduce relevant evidence whether or not the defendant presents evidence during the penalty phase”). Thus, the state may “rebut” mitigation — that is, a conclusion that the defendant should be shown leniency — by introducing evidence of the “specific harm caused by the defendant.” State v. Forde, 233 Ariz. 543, 572 ¶ 126, 315 P.3d 1200, 1229 (2014). The state’s evidence must not be so unduly prejudicial that it renders the trial fundamentally unfair under the Due Process clause. State v. Hampton, 213 Ariz. 167,179 ¶ 48, 140 P.3d 950, 963 (2006); Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). ¶ 48 The evidence of the murders’ impact on the identified neighbors is relevant to whether Leteve should be shown leniency inasmuch as it demonstrated the specific harm his killings caused to people closely linked to the family. “The threshold for relevance is a low one,” State v. Roque, 213 Ariz. 193, 221 ¶ 109, 141 P.3d 368, 396 (2006), and the harm caused by a defendant’s killing is a relevant factor for the jury to consider in making its sentencing determination. See Payne, 501 U.S. at 808, 111 S.Ct. 2597 (noting that the victim impact evidence “illustrated quite poignantly some of the harm that [the defendant’s] killing had caused” and that “there is nothing unfair about allowing the jury to bear in mind that harm at the same time as it considers the mitigating evidence introduced by the defendant”); Forde, 233 Ariz. at 572 ¶ 126, 315 P.3d at 1229 (holding that victim impact testimony is not limited to mitigation topics presented by defense). ¶ 49 Nor does it necessarily violate due process for the jury to hear evidence of a murder’s impact beyond that of the victim’s family. See Beck v. Commonwealth, 253 Va. 373, 484 S.E.2d 898, 903-04 (1997) (holding that victim impact testimony is not “constitutionally limited to that received from the victim’s family members”). Indeed, several of our sister states and the federal courts of appeal allow “impact” testimony by non-family members in appropriate circumstances. See, e.g., People v. Ervine, 47 Cal.4th 745, 102 Cal.Rptr.3d 786, 220 P.3d 820, 858 (2009) (“[V]ictim impact evidence is not limited to the effect of the victim’s death on family members, but may include its effects on the victim’s friends, eoworkers, and the community.”) (citations omitted); United States v. Lawrence, 735 F.3d 385, 405-06 (6th Cir.2013) (collecting eases interpreting the Federal Death Penalty Act, 18 U.S.C. §§ 3591-3599, not to limit victim impact evidence to family members). ¶ 50 But just as “[t]rial courts should not allow the penalty phase to devolve into a limitless and standardless assault on the defendant’s character and history,” Hampton, 213 Ariz. at 180 ¶ 51, 140 P.3d at 963, they should not allow evidence of a murder’s impact on persons who are not immediately and closely connected to the victim. The Tenth Circuit aptly has observed that “[i]ncluding the community in the victim-impact inquiry is fraught with complication,” as doing so replaces “a close-in focus on persons closely or immediately connected to the victim with a wide view encompassing generalized notions of social value and loss.” United States v. Fields, 516 F.3d 923, 947 (10th Cir.2008). ¶ 51 Allowing testimony about the impact of a murder on persons who are not victims under Rule 19.1(d)(3) poses a substantial risk of injecting unfairly prejudicial evidence and threatening a mistrial. Accordingly, such evidence generally should be disallowed absent a showing that it is necessary to inform the jury of the harm resulting from the crime. Cf. Rose, 231 Ariz. at 511 ¶ 47, 297 P.3d at 917 (cautioning prosecutors not to risk mistrial by introducing unfairly prejudicial evidence with minimal probative value). There is no need for such evidence when the State has already introduced extensive victim impact evidence, as the additional admission of evidence of a murder’s impact on community members is not likely to aid in the jury’s decision making. Cf. Ariz. R. Evid. 403 (evidence is properly excluded “if its probative value is substantially outweighed by a danger of ... needlessly presenting cumulative evidence”). ¶ 52 Because C.P.’s testimony was relevant to whether Leteve should be shown leniency and did not violate due process, the trial court did not abuse its discretion in admit ting it. Prospectively, trial courts should limit the admission of such testimony in accordance with this opinion. G. Abuse of Discretion Review ¶ 53 We review the jury’s imposition of a death sentence for abuse of discretion. A.R.S. § 13-756(A). A finding of an aggravating circumstance is not an abuse of discretion if it is supported by the evidence. State v. Manuel, 229 Ariz. 1, 9 ¶ 42, 270 P.3d 828, 836 (2011). The jury’s determination that death is the appropriate sentence will not be reversed “so long as any reasonable jury could have concluded that the mitigation established by the defendant was not sufficiently substantial to call for leniency.” Id. (quoting State v. Moms, 215 Ariz. 324, 341 ¶ 81, 160 P.3d 203, 220 (2007)). 1. Aggravating Circumstances ¶ 54 As explained above, ¶ 35-38, the jury’s finding that each murder was heinous or depraved (the (F)(6) aggravating circumstance) is supported by the evidence. Leteve does not contest the sufficiency of the evidence to support the other two aggravators found by the jury with respect to each murder — (F)(8) (multiple homicides) and (F)(9) (victims under the age of fifteen). Because the record supports these findings, the jury did not abuse its discretion. 2. Mitigating Circumstances ¶ 55 “The defendant must prove the existence of the mitigating circumstances by a preponderance of the evidence,” but “the jurors do not have to agree unanimously that a mitigating circumstance has been proven to exist.” A.R.S. § 13-751(0). ¶ 56 Leteve presented extensive mitigation evidence, including that he was thirty-nine years old at the time of the murders; his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law was substantially impaired; he was a good father and son and tried to be a good husband and a good provider for his family; he was a good friend and employee; he suffered from alcoholism; he suffered from bipolar disorder and other mental illnesses and did not receive proper treatment; he self-medicated with drugs and alcohol; he was devastated by the collapse of his marriage; he lacked support from his family; he suffered financial ruin, overwhelming stress, and abuse and neglect as a child; he tried to make the best of his life; he was a good student and consistently tried to improve himself; and he lacked a positive male role model. 3. Propriety of Death Sentences ¶ 57 Given the three aggravating circumstances and the mitigation presented, a reasonable juror could conclude that the mitigating circumstances were not sufficiently substantial to call for leniency. H. The Trial Court’s Restitution Order ¶ 58 The trial court ordered Leteve to pay restitution for the victims’ out-of-pocket expenses to attend the trial and attorney fees incurred to enforce victims’ rights. Leteve challenges the restitution order on several grounds. Reviewing the facts in the light most favorable to upholding the order, State v. Lewis, 222 Ariz. 321, 323 ¶¶ 2, 5, 214 P.3d 409, 411 (App.2009), we conclude that the trial court did not abuse its discretion. (We assume, without deciding, that attorney fees incurred to enforce victims’ rights may be compensable in restitution, as Leteve has not raised that issue on appeal.) ¶ 59 Leteve first argues that, because the victims’ counsel did not provide itemized billing statements, it is impossible to identify the amount of the fees attributable to enforcing victims’ rights. But neither the victims’ rights laws nor their implementing rules explicitly require itemized billing. Cf. ARCAP 21(b) (requiring a party seeking attorneys’ fees incurred on appeal to file an itemized statement of fees and costs). And the trial court held a hearing on the requested restitution and received evidence to which Leteve could object. Cf. Sparks v. Republic Nat’l Life Ins. Co., 132 Ariz. 529, 544-45, 647 P.2d 1127, 1142-43 (1982) (holding that there is no violation of due process when “[a] full hearing was conducted on the issue of attorney’s fees”). Because counsel’s affidavits supported the restitution order, the State met its burden of proving the amount by a preponderance of the evidence. See Lewis, 222 Ariz. at 324 ¶ 7, 214 P.3d at 412. ¶ 60 Leteve next argues that restitution should be offset by the value of property Laurie received after their divorce. Because Laurie would have received her share of marital property even if the murders had not occurred, any property she received from the divorce proceedings is irrelevant. ¶ 61 Finally, Leteve argues that restitution should be reduced by the amount he alleges Laurie received from a charitable fund established after the murders. A victim’s reimbursement from collateral sources does not reduce a defendant’s restitution obligation. At most, such reimbursement, if made by a qualifying entity, would require a defendant to pay restitution to the entity instead of the already-compensated victim. A.R.S. § 13-804(E). I. Additional Issues ¶ 62 Stating that he wishes to preserve certain issues for federal review, Leteve lists thirty one constitutional claims and previous decisions rejecting them. We decline to revisit these claims. CONCLUSION ¶ 63 We affirm Leteve’s convictions and sentences.

OPINION JONES, Judge: ¶ 1 In this case, the City of Tempe (Tempe) challenges the authority of the Arizona Attorney General (AAG) to investigate a complaint alleging discriminatory housing practices against a municipal corporation. Because a municipal corporation is a “person” subject to the Arizona Fair Housing Act (AFHA), Ariz.Rev.Stat. (A.R.S.) §§ 41-1491 to -1491.37, the AAG can investigate a complaint against Tempe alleging housing discrimination. Accordingly, we affirm the trial court’s grant of summary judgment in favor of the State and the AAG and the award of fees under A.R.S. § 12-348.01. FACTS AND PROCEDURAL HISTORY ¶ 2 Tempe is a municipal corporation that, inter alia, operates Tempe Housing Services (THS), a public housing agency. THS administers the Section 8 Housing Choice Voucher Program (HCVP) through which the U.S. Department of Housing and Urban Development (HUD) provides rental subsidies to eligible families and individuals living in approved housing units. As required by federal statute, Tempe adopted a plan for administering the voucher program, which provides that THS shall “comply fully with all Federal, State, and local nondiscrimination laws ... from the time a prospective tenant first applies [to the voucher program] through a voucher being given.” See 42 U.S.C. § 3604 (prohibiting discrimination in the sale or rental of housing); 24 C.F.R. § 982.53 (requiring administrator of HCVP to comply with certain anti-discrimination laws). ¶ 3 The Arizona legislature adopted the AFHA in 1991 and tasked the AAG with investigating and enforcing complaints brought thereunder. A.R.S. §§ 41-1491.09, -1491.22(A), -1491.24, and -1491.34. Additionally, through a Memorandum of Understanding, HUD declared the AFHA to be “substantially equivalent” to the federal Fair Housing Act (FHA), 42 U.S.C. §§ 3601 to 3631. As a result, HUD may refer local FHA complaints to the AAG for investigation. See A.R.S. § 41-1491.24(A). ¶ 4 In June 2012, Ron Bircher filed a fair housing complaint against Tempe with the AAG; Tempe then dual-filed the complaint with HUD. Pursuant to the Memorandum of Understanding, HUD referred Bircher’s complaint under the FHA to the AAG for investigation. Bircher later amended his complaint to provide additional details in support of his allegation that his application for a housing voucher was denied based upon an alleged disability, and to add Elizabeth Chavez, a THS manager, as an additional respondent. ¶ 5 Upon receiving Bircher’s complaint, the AAG sent Tempe and Chavez a “Notice of Charge of Discrimination” and requested Tempe provide it with a position statement. Tempe resisted the investigation and ultimately filed a complaint in the superior court seeking declaratory and special action relief, asserting the AFHA did not authorize the AAG to investigate a complaint made against a municipal corporation. ¶ 6 The parties filed cross-motions for summary judgment, disputing three issues: (1) whether Tempe and Chavez are “persons” within the meaning of A.R.S. § 41-1491(9); (2) whether Tempe engages in conduct that could constitute a discriminatory housing practice under the AFHA; and (3) whether the AAG abused its discretion in refusing to summarily dismiss Bircher’s complaint. ¶ 7 After oral argument on the cross-motions, the trial court found: (1) municipal corporations are subject to the requirements of the AFHA, (2) Tempe, a municipal corporation, engages in conduct regulated by the AFHA, and (3) the AAG did not abuse its discretion or act arbitrarily and capriciously by declining to dismiss Bircher’s complaint without an investigation. The court also made specific findings that the AAG is mandated to conduct an investigation, and “Tempe thwarted the investigation,” such that it could not “now complain that the [AAG] abused his discretion by not dismissing the complaint when the investigation [was] not complete.” Accordingly, the court granted the State’s summary judgment motion and dismissed Tempe’s complaint. The State then applied for its attorneys’ fees under A.R.S. § 12-348.01, which the court granted in the amount of $108,090. Tempe timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and - 2101(A)(1). STANDARD OF REVIEW ¶ 8 Summary judgment is appropriate if “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a); Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, 115, ¶ 14, 180 P.3d 977, 980 (App.2008). Even where the facts are not disputed, as here, summary judgment is improper “if the evidence of record does not demonstrate that the movant is entitled to judgment as a matter of law.” Comerica Bank v. Mahmoodi, 224 Ariz. 289, 291, ¶ 12, 229 P.3d 1031, 1033 (App.2010). We review de novo the grant of summary judgment. Hourani v. Benson Hosp., 211 Ariz. 427, 432, ¶ 13, 122 P.3d 6, 11 (App.2005). DISCUSSION I. A Municipal Corporation is a “Person” Under A.R.S. § 41-1491(9). ¶ 9 The AFHA provides “[a] person may not discriminate in the sale or rental or otherwise make unavailable or deny a dwelling to any buyer or renter because of a disability.” A.R.S. § 41-1491.19. The legislature adopted the AFHA with the intent to “undertake vigorous steps to provide equal opportunity in housing; ... and obtain substantial equivalency with the federal government’s housing discrimination enforcement efforts.” 1991 Ariz. Sess. Laws, ch. 181, § 1. Therefore, The AFHA defines “person” as “one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint stock companies, trusts, unincorporated organizations, trustees, receivers, fiduciaries, banks, credit unions and financial institu tions.” A.R.S. § 41-1491(9). Tempe argues that, as a municipal corporation, it is not a “person” within the meaning of A.R.S. § 41-1491(9), and therefore is not subject to the AFHA. We review de novo issues of statutory construction. BMO Hams Bank, N.A. v. Wildwood Creek Ranch, L.L.C., 236 Ariz. 363, 365, ¶ 7, 340 P.3d 1071, 1073 (2015). ¶ 10 When interpreting a statute, we initially look to the language of the statute itself as the most reliable indicator of the legislature’s intent. Bilke v. State, 206 Ariz. 462, 464, ¶ 11, 80 P.3d 269, 271 (2003); Walker v. City of Scottsdale, 163 Ariz. 206, 209, 786 P.2d 1057, 1060 (1989). And, “when the language is clear and unambiguous, and thus subject to only one reasonable meaning, we apply the language without using other means of statutory construction.” Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 383, ¶ 8, 296 P.3d 42, 46 (2013). ¶ 11 The AFHA expressly defines “person” to include “corporations.” A.R.S. § 41-1491(9). Although a municipal corporation is not specifically included as a “person,” the term “corporation” is commonly understood to include municipal corporations. See Bra-den ex rel. Gabaldon v. State, 228 Ariz. 323, 327, ¶ 14, 266 P.3d 349, 353 (2011) (noting “the term ‘corporation’ may embrace both private and public entities”); Sumid v. City of Prescott, 21 Ariz. Ill, 114-16, 230 P. 1103 (1924) (holding the term “corporation” under Employers’ Liability Law applies to municipal corporations). Therefore, the plain language of the statute includes Tempe as a “person” intended to be regulated under the AFHA. ¶ 12 We are further persuaded in this regard by federal law indicating a corporation is a “person” within the meaning of the AFHA. See Canady v. Prescott Canyon Estates Homeowners Ass’n, 204 Ariz. 91, 93 n. 3, ¶ 9, 60 P.3d 231, 233 n. 3 (App.2002) (stating federal case law interpreting similar provisions of the FHA is persuasive in interpreting the AFHA) (citations omitted); see also Hartford Accident & Indem. Co. v. Ariz. Dep’t of Transp., 172 Ariz. 564, 568, 838 P.2d 1325, 1329 (App.1992) (“When our legislature models a statute after that of the federal government, relevant federal judicial interpretations are persuasive in interpreting the Arizona statutory counterpart ... if the construction given by the federal courts is based on the same wording.”) (citing SCA Constr. Supply v. Aetna Cas. & Sur. Co., 157 Ariz. 64, 66, 754 P.2d 1339, 1341 (1988)). When the AFHA was enacted, it was well-established under federal case law that municipalities are included in the FHA definition of “person.” Keith v. Volpe, 858 F.2d 467, 482 (9th Cir.1988) (“The [FHA] applies to municipalities.”); United States v. City of Parma, 661 F.2d 562, 571-72 (6th Cir.1981) (holding a municipality is a “person” that could be sued under the FHA); United States v. City of Black Jack, 508 F.2d 1179, 1183-84 (8th Cir.1974) (same); see also Village of Bellwood v. Gladstone Realtors, 569 F.2d 1013, 1020 n. 8 (7th Cir.1978) (“The Village is a municipal corporation, and we see no reason ... to construe [the FHA] to exclude that type of corporation.”), abrogated on other grounds, Village of Bellwood v. Dwivedi, 895 F.2d 1521 (7th Cir.1990). ¶ 13 Tempe contends, however, that the legislature can differentiate between public and private entities in statutes, and because it did not specifically include both, the legislature intended to exclude municipalities from the definition of “person” under the AFHA. See Braden, 228 Ariz. at 327, ¶ 16, 266 P.3d at 353 (noting courts may not extend liability to entities “ ‘who do not fall within the categories of potential defendants described by the statute’ ”) (quoting Hagert v. Glickman, Lurie, Eiger & Co., 520 F.Supp. 1028, 1034 (D.Minn.1981)). We do not find Braden controlling or instructive here. In Braden, our supreme court interpreted the statutory definition of “enterprise” to determine whether the State could be a defendant to an action brought under the Adult Protective Services Act, which was not modeled after a federal statutory scheme. 228 Ariz. at 326, ¶ 10, 266 P.3d at 352. Here, we do not consider whether Tempe is a “legal entity,” but rather, whether it is a “corporation” within the AFHA’s definition of “person.” Indeed, Braden’s holding is limited to the proposition that the legislature specifically mentions public actors “when it intends their inclusion in a list that uses the general category of ‘legal entity.’ ” Id. at 327, ¶ 15, 266 P.3d at 353. Moreover, the Braden majority specifically acknowledges that the term “corporation” logically may include both public and private entities. Id. at ¶ 14. ¶ 14 Tempe further contends that other articles within the Arizona Civil Rights Act, A.R.S. §§ 41-1401 to -1493.04, of which the AFHA is included, list public entities within their respective definitions of “person,” evidencing the legislature’s ability to do so when it intends. We do not find this point persuasive where the language of the statute at issue closely mimics its federal counterpart. ¶ 15 Accordingly, we hold that a municipal corporation is a “person” within the meaning of A.R.S. § 41-1491(9). We also conclude Chavez, as an individual, is a proper respondent. See A.R.S. § 41-1491(9) (defining “person” to include “one or more individuals”). II. Tempe Engages in Conduct Subject to the AFHA. ¶ 16 The AFHA provides “[a] person may not discriminate in the sale or rental or otherwise make unavailable or deny a dwelling to any buyer or renter because of a disability of ... that buyer or renter.” A.R.S. § 41-1491.19(A)(1). It is undisputed that Tempe, through THS, does not participate in the direct sale or rental of housing. The question, though, is whether its administration of the HCVP is such an action that might “otherwise make unavailable or deny a dwelling” to a person. We review this question de novo. BMO Harris, 236 Ariz. at 365, ¶ 7, 340 P.3d at 1073. ¶ 17 The HCVP is a federal program intended to assist low-income families, the elderly, and the disabled in affording “decent, safe, and sanitary housing” through the provision of rental subsidies. 24 C.F.R. § 982.1(a)(1). The program is generally administered by State or local governmental entities, such as THS, called public housing agencies. Id. The public housing agencies determine an applicant’s eligibility for the program and whether the applicant’s rental unit meets certain quality standards. Id. § 982.1(a)(1)-(2), (b)(2). If an applicant gains approval, the public housing agency contracts with the owner of the approved housing property to make rent payments on the person’s behalf. Id. § 982.1(a)(2), (b)(2). The funds for the rental subsidies are provided to the public housing agencies by HUD. Id. § 982.1(a)(1). ¶ 18 The purpose of the HCVP is to help eligible persons obtain housing they would otherwise be unable to afford. As a practical matter, denying an application to participate in the program has the ultimate effect of making certain dwellings “otherwise unavailable” to applicants. Therefore, the administration of the HCVP, which includes the authority to grant or deny assistance, is an activity that renders the AFHA applicable to public housing agencies like THS. See Hinneberg v. Big Stone Cnty. Hous. & Redevelopment Auth., 706 N.W.2d 220, 224-25 (Minn.2005) (concluding “the broad phrase in the FHA[] — ‘to otherwise make unavailable or deny’ a dwelling — makes the FHA[ ] applicable to public housing authorities administering [federal] housing voucher programs”). III. The AAG Did Not Err by Refusing to Summarily Dismiss Bircher’s Complaint. ¶ 19 Tempe argues the AAG acted arbitrarily and capriciously by declining to dismiss Bircher’s complaint. We review the AAG’s decision to continue its investigation of Tempe de novo to determine whether it was supported by law, or whether it was arbitrary, capricious or an abuse of discretion. Sharpe v. AHCCCS, 220 Ariz. 488, 492, ¶ 9, 207 P.3d 741, 745 (App.2009). ¶ 20 Bircher’s amended complaint against Tempe alleged the following: In July 2011, Bireher applied for a housing voucher from THS. In mid-August 2011, THS informed Bircher by letter that his application had been lost and directed him to file a new one. When he visited THS to resubmit his application, Chavez refused to accept the resubmission, and ordered him to leave, eventually contacting the police who escorted Bircher from the premises. Bircher alleged the ultimate denial of his application was the result of his disability. ¶ 21 When the AAG initiated an investigation into Bircher’s complaint, Tempe argued it did not engage in activities covered by the AFHA, an argument we have rejected above. In addition, Tempe provided the AAG with two documents it believed refuted Bircher’s allegations: an affidavit from Chavez that stated the underlying incident never occurred, and a workplace injunction against harassment ordering Bircher to stay away from the THS premises. Based upon this documentation, Tempe argued that even had the incident occurred, any actions by its employees were fully justified, and could not form the basis of a complaint that Bircher was deprived of housing because of his disability. The AAG declined to dismiss the complaint without completing the investigation. ¶ 22 The AAG is tasked with administering the AFHA. A.R.S. § 41-1491.07. To this effect, “[t]he attorney general shall receive, investigate, seek to conciliate and act on complaints alleging violations of th[e AFHA].” A.R.S. § 41-1491.09; see also A.R.S. § 41-1491.22(A) (“The attorney general shall investigate alleged discriminatory housing practices.”). Once a complaint has been filed, the AAG is mandated to “promptly investigate the allegations set forth in the complaint.” A.R.S. § 41-1491.24(A)-(B); see also Ariz. Admin. Code (A.A.C.) R10-2120(A). The mandate applies to “all complaints.” A.R.S. § 41-1491.24(B). ¶ 23 The purpose of the investigation is to “[o]btain information concerning the events ... identified in the complaint,” “[d]ocument policies or practices of the respondent,” and “[d]evelop factual data” necessary to determine whether the fair housing act has been violated. A.A.C. R10-2-120(A). In furtherance of this purpose, the AAG is authorized to “propound[ ] interrogatories, eonduct[ ] formal and informal interviews of witnesses, conduct[ ] on-site inspections of the property and dwelling, and issu[e] subpoenas and subpoenas duces tecum.” A.A.C. R10-2-120(B). After completing its investigation, the AAG must consider “the facts concerning the alleged discriminatory housing practice provided by complainant and respondent or otherwise disclosed during the investigation,” and “determine whether reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur.” A.A.C. R10-2-124; see also A.R.S. § 41-1491.29(A). If the AAG concludes no reasonable cause exists, it “shall promptly dismiss the complaint and give written notice of the dismissal” to the parties. A.R.S. § 41-1491.30. ¶ 24 Based upon this statutory and regulatory framework, the AAG was within its discretion to continue the investigation beyond receipt of the documents provided by Tempe. It is the AAG’s duty to investigate all complaints, and that duty cannot be circumvented by a respondent who simply denies the claim and unilaterally declares it resolved on the basis of the limited information the respondent chooses to provide. Tempe has shown no arbitrary or capricious action by the AAG. IV. Attorneys’ Fees Award A. Fees Were Required Under A.R.S. § 12-348.01. ¶ 25 The AAG sought and was awarded its attorneys’ fees in the amount of $108,090 pursuant to A.R.S. § 12-348.01, representing approximately 360 hours at $300 per hour. Section 12-348.01 provides: Notwithstanding § 12-348, in addition to any costs that are awarded by statute, if an agency, department, board or commission of this state, a city, town or county, governmental officer acting in the officer’s official capacity or an association whose membership is primarily composed of governmental entities files a lawsuit against this state, or an agency, department, board or commission of this state, a city, town or county, governmental officer acting in the officer’s official capacity or an association whose membership is primarily composed of governmental entities, the court shall award reasonable attorney fees to the successful party in the action. A.R.S. § 12-348.01 (emphasis added). Tempe argues the award of fees to the AAG was error because A.R.S. § 12-348.01 is not applicable here, where its complaint for declaratory, injunctive, and special action relief against the AAG was “arguably” not a lawsuit within the meaning of the statute because it was prompted by the AAG’s investigation. We review both the AAG’s entitlement to fees and issues of statutory interpretation de novo. BMO Harris, 236 Ariz. at 365, ¶ 7, 340 P.3d 1071; Thompson v. Carry, 231 Ariz. 161, 163, ¶ 4, 291 P.3d 358, 360 (App.2012). Again, “when the language [of a statute] is clear and unambiguous, and thus subject to only one reasonable meaning, we apply the language.” Baker, 231 Ariz. at 383, ¶ 8, 296 P.3d 42. ¶ 26 Section 12-348.01 applies if the underlying proceeding was a “lawsuit.” In the absence of legislative intent to the contrary, we construe words “according to the[ir] common and approved use.” A.R.S. § 1-213. The word “lawsuit” is “a vernacular term for a suit.” Cannon v. Hirsch Law Office, P.C., 222 Ariz. 171, 177, ¶ 19, 213 P.3d 320, 326 (App.2009) (citing In re Barrett Ref. Corp., 221 B.R. 795, 802-03 (Bankr.W.D.Okla.1998), and Black’s Law Dictionary (6th ed.1991)) (internal quotations omitted). Suit is defined as “[a]ny proceeding by a party or parties against another in a court of law.” Black’s Law Dictionary (10th ed.2014). ¶ 27 It is clear the filing of Tempe’s complaint seeking declaratory and special action relief in the superior court initiated an adversary proceeding, or lawsuit, against the AAG. With that, an award of fees to the prevailing party was mandatory. A.R.S. § 12-348.01. Accordingly, the trial court properly found the AAG, as the prevailing party, was entitled to fees. B. Calculation of Hourly Rate ¶ 28 Finally, Tempe argues the trial court erred by calculating the award of attorneys’ fees based upon a prevailing market rate of $300 per hour. Tempe contends this hourly rate was not supported by sufficient evidence. We review the court’s fee award for an abuse of discretion. Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17, 141 P.3d 824, 830 (App.2006). We will affirm if there is any reasonable basis that supports the trial court’s decision. Fulton Homes Corp. v. BBP Concrete, 214 Ariz. 566, 569, ¶ 9, 155 P.3d 1090, 1093 (App.2007). ¶ 29 In State ex rel. Corbin v. Tocco, this Court held that the prevailing market rate standard shall be used to calculate the State’s reasonable attorneys’ fees when represented by the AAG. 173 Ariz. 587, 591-92, 845 P.2d 513, 517-18 (App.1992) (citing Illinois v. Sangamo Constr. Co., 657 F.2d 855, 861-62 (7th Cir.1981)); see Radish v. Ariz. State Land Dep’t, 177 Ariz. 322, 331-32, 868 P.2d 335, 344-45 (App.1993) (citing Arnold v. Ariz. Dep’t of Health Servs., 160 Ariz. 593, 608, 775 P.2d 521 (1989)). A determination of the prevailing market rate requires consideration of “the difficulty and quality of the work performed, the experience and reputation of counsel, and the nature and significance of the result.” Radish, 177 Ariz. at 332, 868 P.2d at 345. ¶ 30 Here, the AAG supported its application for attorneys’ fees with an affidavit adequately explaining the basis for the fee request and the appropriateness of a prevailing market rate of $300 per hour. Specifically, the affidavit explained that in 2001, the individual hourly rate of assistant attorneys general with fifteen or more years of experience was $185; an attached 2013 Arizona State Bar study found hourly billing rates had risen at a rate of 3.5% per year since 2001. Based upon these numbers, adjusted slightly upward, the AAG calculated $300 as a reasonable hourly rate of compensation for the two assistant attorneys general that worked on the matter. ¶ 31 The rate advanced by the AAG is supported by the documentation. Of the two assistant attorneys general who submitted billing statements, one had over fourteen years of experience, and one had more than twenty-five years of experience. The State Bar study reported a mean hourly billing rate for attorneys with eleven to fifteen years’ experience at $279, while attorneys with greater than twenty-five years’ experience had a mean hourly billing rate of $320. As the two attorneys billed for nearly identical hours, a $300 average hourly rate was in line with the average market rate. ¶ 32 Once the AAG established an entitlement to fees and met the minimum requirements in an application and affidavit, the burden shifted to Tempe to demonstrate the impropriety or unreasonableness of the requested fees. Assyia v. State Farm Mut. Auto. Ins. Co., 229 Ariz. 216, 223, ¶ 29, 273 P.3d 668, 675 (App.2012) (citing Corbin, 173 Ariz. at 594, 845 P.2d 513). But Tempe offered no evidence or persuasive argument to controvert the reasonableness of the hourly rate provided by the AAG. See Corbin, 173 Ariz. at 594, 845 P.2d at 520 (noting opposing party cannot simply claim that the rates submitted are too high) (citing Arizona v. Maricopa Cnty. Med. Soc’y, 578 F.Supp. 1262, 1264 (D.Ariz.1984)). ¶ 33 Tempe instead contends the hourly rate for the AAG should be capped at $175 to remain consistent with Thompson, 231 Ariz. at 163, ¶ 3, 291 P.3d at 360. We disagree. The Thompson court adopted an hourly fee of $175, pursuant to A.R.S. § 25-324 and Arizona Rule of Family Law Procedure 92(E)(2), to award fees to a party represented by counsel on a pro bono basis. Id. at 167, ¶ 22, 291 P.3d at 364. However, the opposing party did not contest that $175 was the prevailing market rate, and there is no discussion to provide guidance as to the appropriateness of this amount. Moreover, Thompson addressed the prevailing market rate for representation in family court, and Tempe has not illustrated that such services are similar to the type of representation provided by the AAG here. Id. at 162, 167, ¶¶ 1, 22, 291 P.3d at 359, 364 (noting hourly rate should be calculated in reference to “the prevailing market rate in the community for similar services”). ¶ 34 To summarize, the AAG was entitled to an attorneys’ fee award under A.R.S. § 12-348.01, and Tempe does not dispute that the $108,090 award was calculated correctly when based upon a prevailing market rate of $300 per hour. Because a reasonable basis existed for the prevailing market rate, and by extension, the total award, we affirm the trial court’s fee award. See Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260, 265, ¶ 18, 99 P.3d 1030, 1035 (App.2004) (“An award of attorney fees is left to the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion.”); Hale v. Amphitheater Sch. Dist. No. 10, 192 Ariz. 111, 117, ¶ 20, 961 P.2d 1059, 1065 (App.1998) (‘We will not disturb the trial court’s discretionary award of fees if there is any reasonable basis for it.”). CONCLUSION ¶ 35 For the foregoing reasons, we affirm both the trial court’s grant of summary judgment and its award of attorneys’ fees in favor of the AAG. ¶ 36 The AAG requests its costs and reasonable attorneys’ fees on appeal pursuant to A.R.S. § 12-348.01. As the prevailing party and consistent with our holding, we grant the AAG’s request subject to compliance with ARCAP 21(b). . Absent material revisions from the relevant date, we cite a statute's current version. . "On appeal from a grant of summary judgment, we view all facts and reasonable inferences therefrom in the light most favorable to the party against whom judgment was entered.” Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 315, ¶ 2, 965 P.2d 47, 49 (App.1998). . The AAG performs these tasks through the Civil Rights Division of the AAG’s Office. For simplicity, we refer to the State, the AAG, the office of the AAG, and the AAG’s employees and agents as AAG. . Tempe also sought injunctive relief to prohibit the AAG from issuing subpoenas to Tempe and its employees for documents and testimony, an issue not before us on appeal. . The AFHA includes three entities in its definition of "person" not found within the FHA version — banks, credit unions, and financial institutions — and omits bankruptcy trustees. Compare A.R.S. § 41-1491(9) with 42 U.S.C. § 3602(d). However, both include "corporations” within their definition. . We take no position on the merits of Chavez's potential liability. . Tempe argues A.R.S. § 12-348(A)(3) and (4), which preclude the recovery of attorneys' fees by the State or state agency, is a more specific statute that should apply in this situation. The argument ignores the plain directive by the legislature that A.R.S. § 12-348.01 shall apply "notwithstanding § 12-348.” For that same reason, we reject Tempe’s arguments that the hourly rate used to calculate a fee award and the fee award cap found in A.R.S. § 12-348(E)(2) and (4) are applicable here. . Tempe does not contend on appeal that the AAG’s attorneys’ fee affidavit was deficient. See Schweigerv. China Doll Rest., Inc., 138 Ariz. 183, 188, 673 P.2d 927, 932 (App.1983) (requiring under Arizona law a fee application be supported by an affidavit that indicates "the type of legal services provided, the date the service was provided, the attorney providing the service, ... and the time spent in providing the service”). Nor does Tempe adequately contend the hours billed were excessive, as it only generally argues on appeal that the hours were excessive because the case lasted approximately one year and was settled on cross-motions for summary judgment. A party opposing a fee request does not meet its burden " 'merely by asserting broad challenges to the [fee] application.’ ” In re Indenture of Trust Dated Jan. 13, 1964, 235 Ariz. 40, 53, ¶ 47, 326 P.3d 307, 320 (App.2014) (quoting Corbin, 173 Ariz. at 594, 845 P.2d at 520).

OPINION CATTANI, Judge. ¶ 1 In this appeal, we construe the statutory requirements for eligibility to assert a claim for compensation from the Residential Contractors’ Recovery Fund (“Fund”) as a “person injured” by a residential contractor’s violation of the rules governing registered contractors. See Ariz.Rev.Stat. (“A.R.S.”) §§ 32-1132(A), -1131(3). The statutes define a “person injured,” as relevant here, as the owner of residential real property, who occupies or intends to occupy the residence, and who is damaged by a residential contractor’s deficient work. A.R.S. § 32-1131(3). We conclude that an individual who occupies or intends to occupy the residence, and who is the trustor, trustee, and beneficiary of a revocable trust that owns the property, meets the statutory owner-occupant requirement of § 32-1131. We also conclude that the statute does not require contractual privity between an owner of property and the residential contractor as a prerequisite to recovery from the Fund. See A.R.S. § 32-1131(3). Finally, we hold that participation in the underlying complaint to the Arizona Registrar of Contractors (“ROC”) that established the contractor’s violation is not a statutory prerequisite to recovery from the Fund. Accordingly, and for reasons that follow, we reverse the ROC’s denial of the claim. FACTS AND PROCEDURAL BACKGROUND ¶ 2 In 2003, Krishna Pinnamaneni (“Pinnamaneni”) began designing a home for himself and his family to be built on property owned by the Krishna M. and Bhavani K. Pinnamaneni Revocable Living Trust (“Trust”). During the home’s construction, Pinnamaneni acted through his limited liability company, Pioneer Family Investments (“Pioneer”), as his agent to negotiate all contractual and financial matters, including a contract with The Untouchables, Inc. (the “Contractor”) on behalf of himself and the Trust. ¶ 3 Because of problems caused by the Contractor during construction, Pinnamaneni — through Pioneer — filed an ROC complaint. In the section titled “Person Filing the Complaint,” Pinnamaneni checked the box next to “homeowner” and listed his name. The complaint also included a line to designate a “Company name (If filing on behalf of a company)” under which Pinnamaneni listed “Pioneer Family Investments, LLC.” Before submitting the complaint, Pinnamaneni sought clarification on how to complete this portion of the form from the ROC, and he asserts that someone at the ROC advised him that “if Pioneer is your agent, and your family is the sole owner, you can use Pioneer as the complainant, because you will be coming as the sole owners, family owner’s agent.” Shortly after filing the complaint, Pinnamaneni submitted a supplement to request additional damages, signing the supplement in his capacity as “Managing Member, Pioneer Family Investments, LLC.” ¶ 4 Following a hearing on the ROC complaint, an administrative law judge found that the Contractor had performed deficient work and recommended revoking the company’s license. The ALJ’s recommended decision, which listed Pioneer as the complainant, was subsequently adopted by the ROC. ¶ 5 After the Contractor filed for bankruptcy, Pinnamaneni (on his own behalf and as trustee) and Pioneer filed a joint claim to recover payment from the Fund for damages incurred as a result of the deficient construction. The ROC denied the claim, however, on the basis that “[Pinnamaneni, the Trust, and Pioneer] do not meet the legal definition of a ‘person injured’ as required by § 32-1131.3.” ¶ 6 Pinnamaneni, the Trust, and Pioneer requested an administrative hearing to contest the ROC’s eligibility determination. Pinnamaneni testified at the hearing that he used Pioneer as his agent during the construction, and that he lives in the house, which is owned by the Trust. Pinnamaneni also indicated that he had filed the original complaint against the Contractor both on his own behalf and on behalf of Pioneer. ¶ 7 Following the eligibility hearing, the ROC ruled that because only Pioneer (and not the Trust) filed the underlying complaint, Pinnamaneni did not meet the statutory qualification for obtaining a recovery from the Fund. The ROC further found that Pinnamaneni’s lack of contractual privity with the Contractor (because only Pioneer was a party to the contract) also rendered Pinnamaneni ineligible to recover from the Fund. ¶ 8 Pinnamaneni, individually and as trustee, appealed the denial of his claim to the superior court, which affirmed the ROC’s order. He then timely appealed to this court, and we have jurisdiction under A.R.S. §§ 12-2101(A)(1) and -913. DISCUSSION ¶ 9 Pinnamaneni argues that the superior court erred by upholding the denial of his claim, arguing in particular that (1) he qualifies for recovery from the Fund as a “person injured” by the Contractor’s deficient work, and (2) A.R.S. § 32-1154 does not require the injured party to have filed the underlying ROC complaint to receive compensation from the Fund. ¶ 10 “When reviewing a superior court judgment affirming administrative action, we will determine whether there is substantial evidence to support the decision.” Sunpower of Ariz. v. Ariz. State Registrar of Contractors, 166 Ariz. 437, 439, 803 P.2d 430, 432 (App.1990). We review questions of statutory interpretation de novo, looking first to the language of the statute, then to the Leg islature’s intent. Magness v. Ariz. Registrar of Contractors, 234 Ariz. 428, 432, ¶ 15, 323 P.3d 711, 715 (App.2014). ¶ 11 Under A.R.S. § 32-1154(G), “if a contractor’s license has been revoked or has been suspended as a result of an order to remedy a violation of this chapter, the registrar may order payment from the residential contractors’ recovery fund to remedy the violation.” The Fund thus provides a mechanism to compensate “any person injured” by an act, representation, transaction, or conduct of a licensed residential contractor in violation of the rules governing contractors. A.R.S. § 32-1132(A); see also Shelby v. Ariz. Registrar of Contractors, 172 Ariz. 95, 97-98, 834 P.2d 818, 820-21 (1992). A person injured by the violation may be awarded up to $30,000 for actual damages suffered as a direct result of the contractor’s violation. A.R.S. § 32-1132(A). ¶ 12 Under A.R.S. § 32-1131(3), a “person injured” is defined as: any owner of residential real property which is classified as class three property under § 42-12003 and which is actually occupied or intended to be occupied by the owner as a residence including community property, tenants in common or joint tenants who are damaged by the failure of a residential contractor or a dual licensed contractor to adequately build or improve a residential structure or appurtenance on that real property. Included in this definition are lessees of residential real property who contract directly with a residential contractor or indirectly with a subcontractor of that contractor and homeowners’ or unit owners’ associations after transfer of control from the builder or developer for damages to the common elements within the complex. Thus, to qualify as a “person injured” under § 32-1131(3), the claimant must (1) be an owner of residential real property; (2) actually occupy or intend to occupy the property as a residence; and (3) be damaged by the failure of a residential contractor to adequately build or improve a residential structure. McMurren v. JMC Builders, Inc., 204 Ariz. 345, 350, ¶ 15, 63 P.3d 1082, 1087 (App. 2003). ¶ 13 The residential property at issue here is owned by the Trust, and Pinnamaneni (not the Trust) occupies the property as a residence. The Trust, however, is revocable, and Pinnamaneni created the Trust and is both the trustee and a beneficiary. As both the trustor and trustee of a revocable trust, Pinnamaneni had complete control over the property in the Trust. See, e.g., A.R.S. § 14-10603(A) (“While a trust is revocable by the settlor, the rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor.”). We therefore conclude that under these circumstances — where the property is owned by a revocable trust and the occupant is the trustor, trustee, and beneficiary of that revocable trust — the trustee acting on behalf of the trust satisfies the owner and occupant requirements of § 32-1131(3). Accordingly, Pinnamaneni is entitled to compensation as a “person injured” under § 32-1131. ¶ 14 The ROC and the superior court alternatively concluded that, under § 32-1131, Pinnamaneni’s lack of contractual privity with the Contractor precludes him from asserting a claim for recovery from the Fund. Although that statute does not include any reference to a contract between a property owner and the contractor alleged to have caused the damage, the ROC asserts that a contractual privity requirement is evidenced by the legislative history of § 32-1131, which noted that the Fund was established as part of a broad scheme “to provide improved protection for owners and lessees of property who contract for the construction or alteration of residential structures.” 1981 Ariz. Sess. Laws, ch. 221, § 1 (emphasis added). But the definition of “person injured” has changed since the statute was initially enacted in 1981. The 1981 version of § 32-1131 defined “person injured” as: any owner of real property or his successor in interest or lessee who contracts directly with a licensed contractor or indirectly with a licensed subcontractor of such contractor for the construction of or improvements or alterations to a residential structure and appurtenances thereto. In contrast, as set forth above, the current version of § 32-1131 includes no such reference to contractual privity between a property owner whose property is damaged and the contractor alleged to have caused the damage (although the statute retains such a requirement for a lessee). In light of this change removing the contractual privity requirement for property owners seeking recovery from the Fund, the legislative history does not support the ROC’s interpretation of the current version of the statute. ¶ 15 The ROC further asserts that, although there is no express statutory requirement that an injured property owner have had a contractual relationship with the contractor, the contrary interpretation improperly “isolates one part of the entire recovery fund scheme.” The ROC references “other Fund statutes” that “expressly require a contractual relationship,” and concludes that such provisions suggest an overall requirement that there be a contractual relationship. But the statute that contains such a requirement, § 32-1131(3), includes in the definition of “person injured” “lessees of residential real property who contract directly with a residential contractor or indirectly with a subcontractor of that contractor.” A contractual privity requirement for lessees who seek recovery from the Fund is logical because faulty construction on a residence presumably damages the owner of the residence, rather than the lessee, unless the lessee is the person who contracted for the work at issue. ¶ 16 Moreover, the fact that the Legislature imposed a contractual privity requirement for one category of persons injured while leaving out such a requirement for another category supports the conclusion that the requirement does not apply to the other category. See Luchanski v. Congrove, 193 Ariz. 176, 179, ¶ 14, 971 P.2d 636, 639 (App.1998) (“When the legislature has specifically included a term in some places within a statute and excluded it in other places, courts will not read that term into the sections from which it was excluded.”). Thus, we conclude that the contractual privity requirement applies only to lessees, and not to property owners. ¶ 17 Finally, the ROC argues that Pinnamaneni is not eligible for recovery from the Fund because he was not a party to the ROC complaint against the Contractor. The ROC acknowledges that the statutory scheme is silent as to whether recovery is contingent on participation in the underlying complaint against a contractor, but asserts that “[i]t is axiomatic that to recover under a complaint, one must be a party to the action in which the complaint is filed.” We disagree. In this context, resolution of a complaint simply establishes a violation, which is a question independent of who was damaged by the violation. ¶ 18 Furthermore, A.R.S. § 32-1154(G) provides that recovery funds are available “to remedy the violation.” Subsection (G) is not contingent on who files a complaint, and, significantly, A.R.S. § 32-1154(B) permits investigation and punishment of a violation on the ROC’s own motion. The ROC’s interpretation would frustrate § 32-1154(G)’s intended compensatory purpose in any case in which the ROC initiated proceedings on its own motion. Given the absence of an express requirement that a “person injured” have taken part in the underlying complaint against the contractor, and interpreting the statutory scheme as a whole, we conclude that a “person injured” as defined in § 32-1131 is entitled to recover from the Fund even if not a party to the underlying ROC complaint. ¶ 19 Because Pinnamaneni, as trustee of the Trust and occupant of the residence, qualifies for recovery from the Fund as a “person injured,” the superior court erred by upholding the ROC’s denial of Pinnamaneni’s claim for recovery from the Fund under A.R.S. § 32-1132. Pinnamaneni has requested attorney’s fees on appeal under A.R.S. § 12-348. As the prevailing party, Pinnamaneni is entitled to an award of reasonable attorney’s fees and costs upon compliance with ARCAP 21. CONCLUSION ¶ 20 For the forgoing reasons, we reverse the superior court’s judgment affirming the ROC order and remand for farther proceedings consistent with this opinion. . Absent material revisions after the relevant date, we cite a statute's current version. . The ROC also denied Pioneer's claim to recovery from the Fund; Pioneer did not appeal that determination.

OPINION GEMMILL, Judge: ¶ 1 Francisco Javier Felix appeals his convictions and sentences on ten counts of attempted second-degree murder, ten counts of aggravated assault, one count of assisting a criminal street gang, and one count of endangerment. We vacate Felix’s convictions for attempted second-degree murder because the jurors were improperly instructed that they could convict Felix of that offense if they found that he attempted to cause death through conduct he knew would cause death or serious physical injury. We affirm Felix’s remaining convictions and sentences and remand for further proceedings. BACKGROUND ¶ 2 We view the facts in the light most favorable to sustaining the jury’s verdicts and resolve all reasonable inferences against the defendant. State v. Vandever, 211 Ariz. 206, 207 n. 2, 119 P.3d 473, 474 n. 2 (App.2005). ¶ 3 Felix, his girlfriend Heidy, and three other friends went to a bar in Yuma to celebrate a Mend’s birthday. While they were there, Heidy received phone messages from her cousin Elizabeth, inviting them to a party at Elizabeth’s house. Elizabeth also told Heidy to tell Felix that she did not want any trouble because she knew that Felix was a member of the East Side Naked City gang. ¶ 4 The group arrived at the house at approximately 2:30 a.m. and found the party underway, with approximately 15-20 people in the house. Heidy and Felix went into the bathroom. When they came out, someone who appeared to be waiting for Felix immediately began punching his face and body. Others joined in and beat Felix to the ground. At some point, one of the people hitting Felix yelled “Okie” or “Okie Town,” referring to a rival gang. When Heidy stepped in to help Felix, the person who had initially hit Felix told his friends to “jump her,” and several people started hitting and beating Heidy. Felix and Heidy fled the house, but the others followed them and continued to attack. When Elizabeth’s boyfriend Steve noticed that Heidy was being hurt, he told everyone to leave and stated he was going to call the police. ¶ 5 Felix, Heidy, and their friends returned to their vehicle. Felix was bleeding, his clothes were ripped, and one of his eyes was badly bruised, but he refused to go to the hospital. On their drive home, Felix took Heidis phone and called someone to say he had been “beat up really bad” and that “they were going to do something about it.” He told the person that he needed a ride and asked to be picked up. Felix also stated he needed to “get these mother f — ers” and asked the person to “pick up a toy or get a toy” — common gang terminology for a gun. ¶ 6 When Felix and Heidy arrived at their home, Felix did not go inside, but asked Heidy for Elizabeth’s address. A friend and fellow East Side Naked City gang member picked Felix up in a car at about 4:30 a.m. ¶ 7 Around 5:00 a.m., a shooter approached the front of Elizabeth and Steve’s house on foot and fired nine large-caliber high-velocity bullets in multiple bursts from an AK-47 into the house. While firing, the shooter changed locations at least one time. Steve, Elizabeth, their sixteen-month-old baby, J.V., and seven of Steve’s Mends were inside at the time. No one was injured by the shots. ¶ 8 Two neighbors heard the gunshots and observed a vehicle with male occupants and a male figure running toward the vehicle as it sped away, but neither witness could identify the individuals. After the shooting, Felix told Heidy that he had given her cousin’s address to his Mends and that they had “shot up” her cousin’s house. ¶ 9 The police investigation led to Felix as the suspected shooter and the State charged him with nine counts of attempted first-degree murder, one count of attempted first-degree murder of a juvenile, nine counts of aggravated assault with a deadly weapon, one count of aggravated assault of a juvenile, one count of assisting a criminal street gang, and one count of endangerment. The jury declined to convict Felix on the attempted first-degree murder counts, but found him guilty of ten counts of the lesser-included offense of attempted second-degree murder. The jury also found Felix guilty of ten counts of aggravated assault with a deadly weapon, one count of assisting a criminal street gang, and one count of endangerment. The jury found that the attempted murder, aggravated assault, and endangerment offenses were committed “with the intent to promote, further or assist any criminal conduct by a criminal street gang.” ¶ 10 The trial court sentenced Felix to concurrent terms of 12 years’ imprisonment on each of the attempted second-degree murder convictions, and a concurrent term of 3.5 years’ imprisonment for assisting a criminal street gang. On each of the aggravated assault offenses with adult victims, the trial court sentenced him to concurrent terms of 10 years’ imprisonment. For the aggravated assault conviction involving J.V., a dangerous crime against children, the court sentenced Felix to a consecutive term of 15 years’ imprisonment. The court sentenced Felix to time served on the endangerment offense. Felix timely appeals. ANALYSIS ¶ 11 Felix raises four arguments: (1) the trial court gave incorrect instructions on attempted second-degree murder and accomplice liability; (2) there was insufficient evidence to support his conviction of aggravated assault against J.V.; (3) the trial court incorrectly ordered consecutive sentences based on its finding that the aggravated assault against J.Y. was a dangerous crime against children; and (4) the trial court abused its discretion when it admitted photographs of a stuffed gorilla and a crib with bullet holes in them. I. Improper Jury Instruction on Attempted Second-Degree Murder ¶ 12 The trial court instructed the jury on attempted first-degree premeditated murder and, without objection, instructed the jury as follows regarding the lesser-ineluded offense of attempted second-degree murder: The crime of second degree murder requires proof of one of the following. The defendant or an accomplice attempted to intentionally cause the death of another person; or, two, the defendant or an accomplice attempted to knowingly cause the death of another person by conduct which the defendant knew would cause death or serious physical injury. (Emphasis added.) ¶ 13 Felix challenges the portion of the instruction permitting the jury to return a guilty verdict on the alternative showing that Felix knew that his conduct “would cause death or serious physical injury." He did not object to the instruction at trial, and we are therefore limited to fundamental error review on appeal. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Felix has the burden to “establish both that fundamental error exists and that the error in this case caused him prejudice.” Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. A. Fundamental Error ¶ 14 “[Instructing a jury on a nonexistent theory of criminal liability is fundamental error.” State v. Dickinson, 233 Ariz. 527, 530, ¶ 12, 314 P.3d 1282, 1286 (App. 2013); State v. James, 231 Ariz. 490, 493, ¶ 13, 297 P.3d 182, 185 (App.2013). In State v. Ontiveros, 206 Ariz. 539, 542, ¶ 14, 81 P.3d 330, 333 (App.2003), this court held that attempted second-degree murder can be committed only when the defendant intended to kill the victim or knew that his conduct would cause death. See also Dickinson, 233 Ariz. at 530, ¶ 11, 314 P.3d at 1285 (following Ontiveros and recognizing that attempted second-degree murder cannot be “based on knowing merely that one’s conduct will cause serious physical injury”). Such an instruction potentially relieves the State of its burden of proving an element of the offense of attempted second-degree murder. Dickinson, 233 Ariz. at 531, ¶ 12, 314 P.3d at 1286. Consequently, instructing the jury that it could convict Felix of attempted second-degree murder based on a finding that he knew that his conduct would merely cause serious physical injury resulted in fundamental error. B. Prejudice ¶ 15 Fundamental error alone is not, however, sufficient grounds for reversal. Id. at 531, ¶ 13, 314 P.3d at 1286. To obtain relief based on an erroneous jury instruction, a defendant must also show prejudice, i.e. “that a reasonable jury ‘could have reached a different result’ had the jury been properly instructed.” State v. James, 231 Ariz. 490, 494, ¶ 15, 297 P.3d 182, 186 (App.2013) (quoting Henderson, 210 Ariz. at 569, ¶ 27, 115 P.3d at 609). ¶ 16 “Prejudice is a fact-intensive inquiry, the outcome of which will depend upon the type of error that occurred and the facts of the particular case.” Dickinson, 233 Ariz. at 531, ¶ 13, 314 P.3d at 1286 (internal quotations and citations omitted). Felix “must show that a reasonable, properly instructed jury ‘could have reached a different result.’ ” Id. (citation omitted). Here, to determine whether Felix has established prejudice, we may consider the jury instructions as given, the evidence at trial, the parties’ theories, and the parties’ arguments to the jury. See id. Under the facts and circumstances of this case, we conclude that Felix has met his burden of showing that a properly instructed jury “could have” reached a different result. ¶ 17 The State argues that the erroneous “serious physical injury” portion of the instructions did not affect the jury’s deliberations, but our supreme court has repeatedly stated that we should presume that jurors follow the instructions provided to them. State v. Payne, 233 Ariz. 484, 518, ¶ 151, 314 P.3d 1239, 1273 (2013); State v. Dann, 220 Ariz. 351, 366, ¶ 75, 207 P.3d 604, 619 (2009); State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006). Here, the incorrect instruction, allowing the jurors to convict based on Felix’s alleged knowledge that his conduct would cause serious physical injury, was delivered to the jury by the trial court both orally and in writing. In the absence of evidence in the record demonstrating that the jury failed to follow its instructions, we presume the jury did so here. We therefore reject the assertion that the jury did not consider the “serious physical injury” language. ¶ 18 The State further argues that because it advanced a theory of the case inconsistent with the shooter merely knowing that his conduct would cause serious physical injury, the jury’s attention was not focused on the “serious physical injury” language and the instruction was therefore not prejudicial to Felix. We note that, although “arguments of counsel generally carry less weight with a jury than do instructions from the court,” Boyde v. California, 494 U.S. 370, 384, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), in some trials, the arguments of counsel can cure or obviate instructional ambiguity or error, see State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App.1989) (“Closing arguments of counsel may be taken into account when assessing the adequacy of jury instructions.”). Here, however, we disagree that the prosecutor’s argument rendered the incorrect jury instruction immaterial. ¶ 19 The State’s theory throughout the case was that Felix, acting with premeditation, intended to kill all of the individuals inside the house when he fired the AK-47 at the house from short range. In his opening statement, the prosecutor stated that Felix was out to get “revenge” for being beaten and embarrassed earlier that night. The prosecutor argued that the evidence would show Felix “emerged from the vehicle, walked up to the home, knowing that there was [sic] people still within that home ... walked in front of that home with an AK-47 or an SKS, a high powered assault rifle, and stood before that home, and finished his plan.” During trial, the State’s evidence established that the home was a modular home with thin walls. The type of high-powered semi-automatic weapon used would shoot through “multiple structures and multiple walls,” was “only made for going through and destroying things,” and the majority of the bullets were fired at the level of the “chest or stomach area ... more of the lower belt buckle up to about the neck region,” a height likely to inflict serious injury or death. In closing, the prosecutor continued to argue for conviction on ten counts of attempted first-degree murder. He argued that the nine shots were fired by Felix with the premeditated intent to kill the ten people in the house in retaliation for his having been injured and embarrassed by rival gang members in front of his girlfriend and others. ¶ 20 Although the prosecutor did not argue for a conviction based on “serious physical injury” and did not call specific attention to the faulty language in the instruction, his arguments seeking a conviction for attempted first-degree murder addressed Felix’s culpable mental state, i.e. his alleged premeditation. The jury rejected the prosecutor’s argument that Felix acted with premeditated intent to kill and chose instead to convict Felix of attempted second-degree murder, which involves a less culpable state of mind. The instructions pertinent to that lesser-included offense included the erroneous definitional language. Because the jurors rejected premeditation, they presumably reviewed carefully the language describing the required mental state for the charged offense and the lesser-included offense of attempted second-degree murder, including the erroneous language. We therefore reject the State’s contention that its vigorous pursuit of first-degree murder convictions compels the conclusion that the “serious physical injury” language could not have prejudiced Felix. ¶ 21 We also find unpersuasive the State’s assertion that defense counsel’s argument did not implicate the erroneous instruction. Although defense counsel’s primary argument was that Felix was not present and had an alibi, counsel also asserted in closing an alternative defense based on the mindset of the shooter. Defense counsel specifically argued that whoever did the shooting did not plan his shots like a person who really had the intent to kill: Mr. Felix wasn’t there, but the shooter who was there had no way of knowing that his or her actions would kill anybody, and in some ways you can see by the results nobody was killed or even hit. I would ask you to look at Exhibit No. 120 when you get back and start deliberations, and that’s a photograph of the house, and you can see and we talked about it, Deputy S- testified that’s what the house looked like when they showed up. The blinds were down, the door was closed, the blinds in the living room were also down. Somebody was there shooting at that house, they would not have seen anybody. The one window that went — that was right there on the corner, there were no lights on in there. There was still a party going on. At that time, there were nine people in there playing beer pong. Person would have probably heard those people, would have known that people were there, would have gone towards the middle where the living room was. That’s where, if you’re gonna go and kill somebody, that’s where at that time you would have been. That’s where you would have gone to shoot, where the people were. The people that you could hear, the people that you knew were there, would have been able to see some light in the house, that’s where you’re gonna go. Not gonna stand at one corner where it’s dark and quiet and shoot there. There’s a party going on, you can see all those ears out there, that’s not where you’re gonna go. The defense attorney further argued that the shooter acted only recklessly, rather than intentionally: [Tjhat’s the floor plan that we got with some of those drawings of where the bullets went. The person right there who took those shots, shot them all in the same direction. If someone was intending to kill everybody at that house, knowing that they were gonna kill everybody at that house, they would have spread those shots out. But you’ll see that all of those shots, almost all of those shots go almost in an exact straight line. There are a couple of strays, but whoever it was shot directly in one line, and that’s not something that you’re gonna do to try and kill everybody in the house. It doesn’t make sense. Now, you did get an instruction on recklessly, and I’m gonna read it to you, but it says recklessly means that a person is aware of and consciously disregards a sub stantial and unjustifiable risk that the result will occur or that the circumstances exist. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe, and that’s what this is. This is not intentionally trying to kill somebody — I mean there’s a statute about shooting at a residence — but this is someone shooting away from where the people in the house are, not targeting anybody, not aiming at anybody. Detective G- told us, you can’t hit something that you don’t aim at. This is not an intentional crime or a knowing crime. It is not an attempted, murder of any kind. Shooter could not see anyone, he or she would not know or intend that his actions will cause death. That’s the way it is. And if the action’s reckless, then you cannot convict Mr. Felix or anyone else of attempted first or second-degree murder. (Emphasis added.) Although defense counsel did not mention the serious physical injury portion of the jury instructions, his alternative argument surely drew the jury’s attention to the question of what culpable mental state was required for conviction and may have prompted the jurors to consider and apply the mistakenly included “serious physical injury” option. ¶ 22 Finally, although the evidence was sufficient to support the convictions for attempted second-degree murder, the sufficiency of the evidence is not the test of whether the fundamentally erroneous jury instruction prejudiced Felix. Nor is the test whether this court thinks another jury, properly instructed, will probably find Felix guilty again. Rather, the test is whether a reasonable jury, properly instructed, could have found Felix not guilty of attempted second-degree murder. See James, 231 Ariz. at 494, ¶ 15, 297 P.3d at 186; Dickinson, 233 Ariz. at 531, ¶ 13, 314 P.3d at 1286. A shooter who stands outside a home and fires nine rounds into the house, without seeing the people inside or knowing how many are there and where they are, might intend to kill them all. Alternatively, the shooter could intend or know that his shots will scare them all and perhaps injure some of them or even kill some of them. Thus, while we agree with the State that the evidence supports the convictions for attempted second-degree murder, in our view the evidence also supports a reasonable conclusion that the shooter intended or knew that his shots would scare the people inside and perhaps injure and even kill some of them. Accordingly, we disagree that the only logical conclusion a jury could have reached was that the shooter intended to kill everyone in the house. ¶ 23 We respectfully disagree with our dissenting colleague on the question of prejudice. The dissent cites Dickinson, 233 Ariz. at 533, ¶ 22, 314 P.3d at 1288, to argue that there was no prejudice here. The defendant in Dickinson also was convicted of attempted second-degree murder with a similar instructional error. But in Dickinson the defendant used his truck to run down a bicyclist, striking the bicyclist with the truck two times. Id. at 531, ¶ 14, 314 P.3d at 1286. After the second hit, the victim was dragged underneath the truck for some distance. Id. Based on this evidence, which showed that the defendant clearly saw and targeted the specific victim, this court determined that no reasonable juror could have found that the defendant did not intend to kill the bicyclist. Id. In contrast, at the time of the shooting in this ease, the shooter was standing outside the house in which the victims were located and could not see the victims or know precisely where they were in the house. The fact that he shot nine shots at the house with a high-powered rifle does not automatically establish that he intended to kill each of the ten people inside, particularly since many of the shots were fired at the same location. ¶ 24 In our view, the evidence can be seen to establish any one of three things: (1) reckless conduct by the shooter (particularly in light of the absence of evidence that he knew where people were in the house), (2) an intent to seriously injure the people in the house, or (3) an intent to kill the people in the house. In light of the erroneous instruction, the jurors could have stopped deliberations after concluding that Felix intended to cause serious physical injury. Thus, we can not conclude that no reasonable jury, properly instructed, could have declined to convict Felix of attempted second-degree murder. ¶ 25 We therefore hold, based on the particular facts of this case, that Felix has established prejudice from the fundamental error in the jury instruction. See Henderson, 210 Ariz. at 568, ¶ 23-24, 115 P.3d at 608; see also Ontiveros, 206 Ariz. at 543, ¶ 18, 81 P.3d at 334. His attempted second-degree murder convictions must be vacated for a new trial. II. Accomplice Liability Instruction ¶ 26 The indictment charged that Felix or an accomplice “intentionally put another person in reasonable apprehension of immediate physical injury.” Because no direct evidence identified the shooter, the trial court instructed the jury on accomplice liability as follows: Accomplice means a person, who, with the intent to promote or facilitate the commission of the offense, does any of the following: One, solicits or commands another person to commit the offense; or, two, aids, counsels, agrees to aid, or attempts to aid another person in planning or committing the offense; or, three, provides means or opportunity to another person to commit the offense. A defendant is criminally accountable for the conduct of another if the defendant is an accomplice of such other person in the commission of the offense, including any offense that is a natural and probable or reasonably foreseeable consequence of the offense for which the person was an accomplice. Felix argues for the first time on appeal that this instruction was erroneous regarding the aggravated assault counts because it “could have misled the jury into rendering guilty verdicts for reasonable apprehension assaults even if [Felix] did not have the mens rea of intent.” Felix’s failure to object to the instruction at trial limits our review to fundamental error. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. Felix must establish that fundamental error exists and that the error prejudiced him. Id. We reject his claim because we conclude that the instruction was correct and no error resulted from the instruction. ¶ 27 The trial court’s accomplice liability instruction was based on the statutory definition of “accomplice,” see A.R.S. § 13-301, and the statutory description of accomplice liability, see § 13—303(A)(3). Felix nevertheless maintains that, because the prosecutor argued Felix need not be the actual shooter to be held responsible as an accomplice to the shooter, the jury “could have used the instruction to conclude that [he] did not have to have the intent to place the victims in reasonable apprehension, as long as the shooter had such an intent and as long as the offense was reasonably foreseeable as far as [he] was concerned.” He argues that this indicates that the jurors might have believed that he “could have been found liable for the intentional acts of his accomplice” even if he only had a mens rea of “recklessness,” and suggests that this misapprehension influenced both the attempted second-degree murder and aggravated assault convictions. ¶ 28 Contrary to Felix’s argument, however, the instruction included the important language emphasizing that an accomplice is a person who, “with the intent to promote or facilitate the commission of the offense,” undertakes certain actions. See supra ¶ 12. Accordingly, the jury was instructed that Felix would be guilty as an accomplice only if he had the “intent to promote or facilitate the commission of the offense.” (Emphasis added.) And the jury was properly instructed that the offense of reasonable apprehension aggravated assault required proof that “the defendant or an accomplice intentionally put another person in reasonable apprehension of immediate physical injury.” (Emphasis added.) Considering these instructions together, Felix is guilty if he intended either to place the victims in reasonable apprehension of immediate physical injury or to promote or facilitate another person doing exactly that. Either way, the instructions required that Felix have the intent to place the victims in reasonable apprehension. No error arose from the jury instructions regarding accomplice liability. See State v. Ellison, 213 Ariz. 116, 138, ¶¶ 92-94, 140 P.3d 899, 921 (2006) (similarly explaining that the jury instruction defining an “accomplice” properly required proof the defendant “had the specific intent to promote or facilitate the offense that he actually aided, counseled, agreed to aid, or attempted to aid”). III. Aggravated Assault of J.V. ¶ 29 The State charged that Felix committed the aggravated assault of J.V., Steve and Elizabeth’s 16-month-old daughter, when Felix intentionally placed the child in reasonable apprehension of immediate physical injury using a deadly weapon. The State also charged that the offense was a dangerous crime against children. The jury found Felix guilty of the offense as charged and also that the offense was a dangerous crime against children. On appeal, Felix argues that the State presented insufficient evidence to sustain either this conviction or the jury’s finding that the crime is a dangerous crime against children. ¶ 30 “[The] question of sufficiency of the evidence is one of law, subject to de novo review on appeal.” State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). We conduct our review viewing all the evidence at trial in the light most favorable to sustaining the jury’s verdicts and resolving all reasonable inferences against the defendant. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). Sufficient evidence may be comprised of both direct and circumstantial evidence, id. at 560 n. 1, 858 P.2d at 1163 n. 1, and be substantial enough for a reasonable person to determine that it supports a verdict of guilt beyond a reasonable doubt. State v. Stroud, 209 Ariz. 410, 412, ¶ 6, 103 P.3d 912, 914 (2005). “Reversible error based on insufficiency of the evidence occurs only when there is a complete absence of probative facts to support the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). ¶ 31 Felix first maintains that the State presented no evidence that J.V. experienced “reasonable apprehension” of physical injury. Felix does not dispute that an assault rifle was fired into the house where J.V. was present, but asserts that, by virtue of her age, J.V. could not have had fear of sounds outside her vision, even the sounds of gunshots. The evidence does not support Felix’s assertions. ¶ 32 Either direct or circumstantial evidence is sufficient to prove that a defendant placed a victim in “reasonable apprehension of immediate physical injury.” See Bible, 175 Ariz. at 560 n. 1, 858 P.2d at 1163 n. 1. Nothing requires that the victim testify to actual fright or apprehension. State v. Wood, 180 Ariz. 53, 66, 881 P.2d 1158, 1171 (1994); see also, State v. Speaks, 691 A.2d 547, 550-51 (R.I.1997) (imperturbability, fortitude, or unawareness of intended victim not a defense to placing baby in reasonable apprehension of immediate injury). Here, Elizabeth testified that the shots fired were audible in her bedroom, where she was lying down and playing with J.V., and that J.V. “started crying” when the shots were fired. Elizabeth then crouched over J.V. and covered her. This evidence is sufficient to support the jury’s reasonable inference that J.V. was frightened by the gunshots and its finding that she was thereby placed in “reasonable apprehension” of physical harm when she heard them. ¶ 33 Felix also argues for the first time on appeal that the aggravated assault of J.V. does not qualify as a dangerous crime against children because no evidence showed that he “targeted” her as a victim. Felix asserts that it was merely “fortuitous” that a child was the victim of his aggravated assault. Aggravated assault involving the discharge of a deadly weapon committed against a minor who is under the age of fifteen is a dangerous crime against children. A.R.S. § 13-705(P)(1)(b). A defendant need not know the age of the victim when committing the offense for it to qualify as a dangerous crime against children; the only requirement is that his conduct be “focused on, directed against, aimed at, or target a victim under the age of fifteen.” State v. Mirandar-Cabrera, 209 Ariz. 220, 223, ¶ 14, 99 P.3d 35, 38 (App.2004). Our supreme court has explained that the intent of the statute is to punish more severely those who prey upon children as opposed to those whose actions only coincidentally affect a child. Id. ¶ 34 Felix relies on our supreme court’s decision in State v. Williams, 175 Ariz. 98, 854 P.2d 131 (1993). Williams involved a drunk driver who drove his car in an extremely aggressive and dangerous manner, placing other drivers and passengers in vehicles around him at danger. Id. at 104, 854 P.2d at 137. The defendant rammed a station wagon, and its fourteen-year-old passenger was thrown from the vehicle and badly injured. Id. at 99, 854 P.2d at 132. Our supreme court held that, because “no evidence [showed] that the [defendant’s] behavior was directed at or focused upon the victim, or that he was even aware of the minor’s presence in the station wagon,” the dangerous crime against children statute did not apply. Id. at 104, 854 P.2d at 137. ¶ 35 Unlike the defendant in Williams, however, Felix admitted that although he did not see the baby during the party that night, he knew that J.V. lived at the house with Steve and Elizabeth when the house “was shot up.” He was therefore aware that by indiscriminately shooting an assault rifle into the house at 5:00 a.m., he would be directing his fire at the baby, who, as one occupant of the house, was likely to be home and asleep at that hour of the morning. See, e.g., Miranda-Cabrera, 209 Ariz. at 225-26, ¶ 22-24, 99 P.3d at 40-41 (evidence that defendant abandoned adult parents and their child in the desert was sufficient evidence that defendant’s conduct focused on the child for purposes of the dangerous crime against children statute, even if the harm against the child victim was not intended). Sufficient evidence supports the jury’s finding that Felix’s aggravated assault of J.V. is a dangerous crime against children. See Bible, 175 Ariz. at 595, 858 P.2d at 1198. IV. Consecutive Sentence for Dangerous Crime against Children ¶ 36 Felix also argues for the first time that the trial court committed fundamental error by imposing a consecutive sentence for this offense. He maintains that, because the attempted second-degree murder offenses and the aggravated assault offenses in this case “arose out of the same act of shooting into the house,” the double punishment statute, A.R.S. § 13-116, prohibits consecutive sentences for an act punishable in different ways by different sections of the law. The Arizona Supreme Court’s recent opinion in State v. Jones, 235 Ariz. 501, 334 P.3d 191 (2014), defeats Felix’s argument. Jones held that the dangerous crimes against children provision, A.R.S. § 13-705, takes priority over A.R.S. § 13-116. Id. at 502, ¶ 1, 334 P.3d at 192. V. Admission of Photographs ¶ 37 Before trial, Felix sought to preclude the State from presenting photographs of a crib with bullet damage and a stuffed gorilla with a bullet hole in it. Felix argues that they had no probative value and were being admitted to improperly inflame the jury. According to defense counsel, they were not relevant to the only question for the jury to decide, which was “whether or not Mr. Felix took a shot at this particular house.” The State responded that the photographs were essential to establish the trajectory of the bullets in the house as well as the presence of a child and the potential harm to that child. After viewing the photographs, the trial court denied Felix’s motion, finding that the probative value of the photos outweighed any prejudice. On appeal, Felix argues that the trial court committed reversible error in admitting the photographs. We do not agree. ¶ 38 We review a superior court’s ruling on the admissibility of evidence, including photographic evidence, for abuse of discretion. State v. Aguilar, 209 Ariz. 40, 49, ¶ 29, 97 P.3d 865, 874 (2004); State v. Anderson, 210 Ariz. 327, 339, ¶ 39, 111 P.3d 369, 381 (2005). Under that standard, “we uphold a decision if there is ‘any reasonable evidence in the record to sustain it.’ ” State v. Butler, 230 Ariz. 465, 472, ¶ 28, 286 P.3d 1074, 1081 (App.2012) (quoting State v. Morris, 215 Ariz. 324, 341, ¶ 77, 160 P.3d 203, 220 (2007)). ¶ 39 The State argued that, to support the allegations of attempted murder and of dangerous crimes against children, the photographs were necessary to show both that the trajectory of the bullets was at a level that could have been lethal to the home’s occupants and that a child resided in the home. The trial court here reviewed the photographs and engaged in the proper balancing analysis. See Ariz. E. Evid. 401, 403. The photographs were relevant to show the potential harm to the inhabitants and to confirm the presence of a child in the house. Furthermore, Felix does not allege that the State used the photographs in an improper fashion, and we find no evidence to support such a claim. On this record, including the photographs themselves, we conclude the trial court did not abuse its discretion by admitting them over Felix’s objection. See Aguilar, 209 Ariz. at 49, ¶ 29, 97 P.3d at 874. CONCLUSION ¶ 40 For the foregoing reasons, we vacate Felix’s convictions for attempted second-degree murder and remand for a new trial. We affirm all of Felix’s other convictions and sentences. . We decline the State's request to overrule Ontiveros as wrongly decided. Ontiveros was decided in 2003. The "Ontiveros error” is the inclusion of the "serious physical injury" language from the elements of second-degree murder when marrying the definition of "attempt” with second-degree murder. This error continues to be made far too often. See, e.g., State v. Juarez-Orci, 236 Ariz. 520, 342 P.3d 856 (App.2015); State v. Dickinson, 233 Ariz. 527, 314 P.3d 1282 (App.2013); State v. Ortiz, 2 CA-CR 13-0157, 2014 WL 2095188 (Ariz.App. May 16, 2014) (mem.decision), State v. Cotrales, 1 CA-CR 12-0532, 2014 WL 173901 (Ariz.App. Jan. 16, 2014) (mem.decision), State v. Calbillo, 1 CA-CR 11-0391, 2012 WL 6719572 (Ariz.App. Dec. 27, 2012) (mem.decision), State v. Hansen, 1 CA-CR 10-0248, 2011 WL 2937208 (Ariz.App. July 21, 2011) (mem.decision); State v. Maikowski, 2 CA-CR 09-0288, 2011 WL 2695761 (Ariz.App. June 3, 2011) (mem.decision); State v. Cross, 2 CA-CR 08-0316, 2009 WL 1830796 (Ariz.App. June 25, 2009) (mem.decision). We urge prosecutors, defense attorneys, and trial judges to avoid the use of the phrase "serious physical injury" when instructing on attempted second-degree murder. . Although Felix's failure to object that the aggravated assault does not qualify as a dangerous crime against children limits our review to fundamental error, see Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607, an illegal sentence constitutes fundamental error, State v. McDonagh, 232 Ariz. 247, 249, ¶ 7, 304 P.3d 212, 214 (App.2013).

OPINION BROWN, Judge: ¶ 1 Renna M. Schickner (“Wife”) appeals from two provisions of the trial court’s decree dissolving her marriage to Daniel Schickner (“Husband”). Wife argues the court (1) undervalued two jointly-owned business interests, Western Medical Eye Center, LLC ("WME”) and Physicians Surgery Center, LLC (“PSC”), and (2) erroneously found she was not entitled to one-half of the monies distributed to Husband from those business interests during the three-year period between the filing of the petition for dissolution and entry of the decree. We conclude that sufficient evidence exists in the record supporting the court’s valuation as to PSC, but not WME, and therefore vacate and remand the court’s ruling for a redetermination of the value of WME. Regarding the post-petition distributions Husband received, we vacate the court’s ruling and remand for further proceedings. BACKGROUND ¶ 2 The parties married in 1998 and have two minor children. During the marriage, the parties acquired a 50% community inter est in WME, located in Kingman, where Husband practices as an ophthalmologist. The parties also acquired a 20% community interest in PSC, also located in Kingman, where Husband performs surgeries. ¶ 3 In June 2010, Husband filed a petition for dissolution of marriage. Early in the case, Wife filed a motion for temporary orders seeking a declaration that pending a final decree, she was entitled to receive a one-half share of all distributions made from WME and PSC. The trial court held a hearing on the motion and received testimony from Husband and Wife as well as Husband’s certified public accountant, Brandon Bull. The court then determined that “no matter how the distributions are characterized, the parties must report the same as taxable income. There were no reductions in capital accounts____ [T]he distributions are appropriately characterized as salary or earned income.” The court therefore denied Wife’s request for one-half of the distributions made to Husband. As to other issues raised in the motion for temporary orders, the court ordered that Husband reimburse Wife for one-half of the mortgage payments on the family residence occupied by Wife and pay $7,000 per month as spousal maintenance. ¶ 4 As the matter progressed to trial, the case was re-assigned to a different judge. The primary contested issues were the valuations of WME and PSC for the purpose of determining the amounts Husband owed to Wife for acquiring her share of the marital community’s interests in the two businesses. ¶ 5 Through his experts, John Pinto and Stephen Koons, Husband presented multiple valuations for the parties’ jointly held 50% business interest in WME: (1) $475,000 (Pinto — applying minority share and marketability discounts), (2) $620,000 (Koons — applying minority share and marketability discounts), and (3) $830,000 (Koons — not applying minority share or marketability discounts). As to the parties’ jointly held 20% interest in PSC, Husband’s experts provided the following values: (1) $580,000 (Pinto — applying minority share and marketability discounts), (2) $490,000 (Koons — applying minority share and marketability discounts), and (3) $540,000 (Koons — not applying minority share or marketability discounts). Through her expert, Calvin Swartley, Wife presented a valuation of WME at $3,233,000 with the community’s 50% interest in WME being $1,617,000 and a valuation of PSC at $5,261,000 with the community’s 20% interest in PSC being $1,052,000. ¶ 6 In general, the three experts testified to the complexity of the valuations, explaining that factors such as assets, liabilities, taxes, liquidity, depreciation, interest expenses, revenue, cash flow, rents, goodwill, operating expenses, management agreements, operating agreements, market size and share, capitalization rates, marketability, and control were considered in reaching the final calculations. Each of the experts also prepared written reports documenting their respective valuations of the two businesses. ¶ 7 Husband disputed Swartley’s valuation, arguing, among other things, that Swartley applied a capitalization rate that was too high and did not include a discount for lack of marketability and lack of control as to both businesses. Wife countered that Husband’s experts incorrectly approached the valuation question by assessing the marketable value of Husband’s interests in WME and PSC as if he were selling to a third party. Wife asserted that discounts for lack of marketability and lack of control are only considerations if an outside buyer is buying into a practice, and are not appropriate factors when evaluating the value of a present owner “buying out” the interest of another present owner. Wife also raised claims regarding “inflated rents” and excessive salaries paid to family members. ¶ 8 The parties also disputed the character of the distributions from the businesses following Husband’s filing of the petition for dissolution. Husband argued Wife was not entitled to any of the monies paid to him because they were in the nature of salary and earned income and thus constituted his separate property. Wife countered that Husband’s salary from WME was limited by contract to $250,000 per year and therefore all monies he received above this salary amount were community property. Wife further argued that all distributions from PSC were community property. ¶ 9 Brandon Bull, C.P.A., testified that Husband receives a base salary of $250,000 from WME, but, as a tax-saving measure implemented in early 2010, Husband receives the rest of his compensation for his “toil and labor” as distributions. By way of illustration, Bull explained that Husband received “exactly the same” compensation in 2010 as in 2009 ($500,000), but elected to change the form of payment from entirely salary to one-half as salary and one-half as distributions to avoid paying Medicare tax on the “non-salary” portion. ¶ 10 After a five-day trial, the court issued a minute entry setting forth its findings and conclusions. The court found Pinto’s “zen master” approach to valuations “disconcerting,” but noted his credibility was bolstered in that he and Koons reached similar valuation calculations. The court specifically disagreed with certain “foundations” underlying Swartley’s analysis: First, [Swartley] used an eleven percent (11%) capitalization rate which is normally attributable to that of a large publicly traded company. This rate resulted in a greater appraised fair market value. The court finds it would be improper to take a capitalization rate that might be attributed to a large company such as Eye Masters or Nationwide Vision and apply it to a small company like WME or PSC. The second concern is that [Swartley] did not evaluate the specific community interest of WME and PSC. Instead, [Swartley] determined the total value of PSC then divided that amount by five (5) and came up with a value. It evaluated WME as a whole and then divided it in half to come up with a community property interest. The court finds this led to an inflated value. The court also noted “that a minority interest has less value than the total interest of a company on a per — share basis,” finding “[t]his distinction [ ] significant because the community does not own a controlling interest in either business venture.” The court then found that the “fair market value” of the community’s 20% interest in PSC is $536,000 and the community’s 50% interest in WME is $602,000 and ordered Husband to pay Wife $569,000 for her one-half share of the community interest in the two business interests. ¶ 11 As to the issue of distributions, the trial court rejected Wife’s claim that she was entitled to her one-half share of the payments Husband received that exceeded his $250,000 salary, which according to Wife was an appropriate amount for an ophthalmologist. Agreeing with temporary orders analysis of the issue, the court found that with regard to WME, it is a small business that relies on Husband’s toil and labor to remain profitable and therefore all the post-filing distributions are his separate property. The court did not specifically address distributions Husband received from PSC. After the court entered a signed decree of dissolution, Wife filed a motion to amend and a motion for reconsideration, which the trial court denied. Wife then timely appealed. DISCUSSION A. Valuation of WME and PSC ¶ 12 Wife contends the trial court undervalued the community’s interest in WME and PSC. Specifically, she asserts the court improperly applied a minority share discount in contravention of Arizona law. ¶ 13 We review a court’s determination of the value of a business in a divorce proceeding for an abuse of discretion. See Roden v. Roden, 190 Ariz. 407, 411, 949 P.2d 67, 71 (App.1997) (holding that trial court did not abuse its discretion by accepting the opinion of husband’s expert when determining the value of a community business interest). A trial court abuses its discretion when it commits an error of law or “reaches a conclusion without considering the evidence ... or the record fails to provide substantial evidence to support the trial court’s finding.” Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 50, ¶27, 156 P.3d 1149, 1155 (App.2007) (internal quotation omitted). “We defer to the trial court’s factual findings unless clearly erroneous.” City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, 189, ¶ 58, 181 P.3d 219, 236 (App.2008). “A factual finding is clearly erroneous if no substantial evidence supports it.” Id. ¶ 14 Pursuant to statute, the trial court must divide community property “equitably, though not necessarily in kind[.]” Ariz.Rev.Stat. (“A.R.S.”) § 25-318(A). As a general principle, “all marital joint property should be divided substantially equally unless sound reason exists to divide the property otherwise.” Toth v. Toth, 190 Ariz. 218, 221, 946 P.2d 900, 903 (1997). ¶ 15 To support her claim that the trial court should have used a different valuation methodology and not applied a minority share discount, Wife relies on Pro Finish USA, Ltd. v. Johnson, 204 Ariz. 257, 63 P.3d 288 (App.2003), and cases from other jurisdictions. As Wife acknowledges, however, Pro Finish is a dissenters’ rights case applying statutory buy-out provisions that require a “fair value buy-out” under specific statutory situations. 204 Ariz. at 260, ¶¶ 8-9, 63 P.3d at 291; see also A.R.S. §§ 10-1325(A), -1301. Because the division of community assets in a marital dissolution proceeding is governed by an equitable division principle (a different standard), Pro Finish is inapposite. ¶ 16 No Arizona case bars a court from applying a minority share discount when valuing minority interests in a domestic relations case. Consistent with the majority of other jurisdictions that have addressed the issue, we decline to adopt such a bright-line rule here. See, e.g., Hanson v. Hanson, 125 P.3d 299, 308 (Alaska 2005) (explaining that minority share discounts may be “used in proper settings” but need not be “applied in all instances”); In re Marriage of Davies, 266 Mont. 466, 880 P.2d 1368, 1375 (1994) (concluding that application of a minority share discount is “appropriate” in some cases); cf. In re Marriage of Batt, 149 Or. App. 517, 524, 945 P.2d 517, 524 (1997) (explaining that application of “a marketability discount is an appropriate device to use in valuing a party’s interest in an asset under some circumstances”). But see Brown v. Brown, 348 N.J.Super. 466, 490, 792 A.2d 463, 478 (App.2002) (holding that the application of a minority share discount “to determine the non-owner spouse’s fair share” of marital assets undermines “the purpose of equitable distribution” and is therefore inappropriate). ¶ 17 Instead, a trial court has discretion to consider whether a minority discount is appropriate, on a case-by-case basis, considering factors such as the minority shareholder’s degree of control, lack of marketability, and the likelihood of a sale of the minority interest in the foreseeable future. See Davies, 880 P.2d at 1375 (“A discount for a minority interest is appropriate when the minority shareholder has no ability to control salaries, dividends, profit distribution, and day-to-day corporate operations.”); In re Marriage of Johnston, 223 Mont. 383, 387, 726 P.2d 322, 325 (1986) (explaining that application of a minority discount may be applied when it “accurately reflect[s]” a minority shareholder’s lack of control); In re Marriage of Branscomb, 201 Or.App. 188, 195-96, 117 P.3d 1051, 1056 (2005) (noting the application of a minority share discount is a fact-specific inquiry that must be considered “on a case-by-case basis”); In re Marriage of Tofte, 134 Or.App. 449, 456, 895 P.2d 1387, 1391 (1995) (explaining a minority discount may be inappropriate when no sale of a minority share is imminent or planned). Because a minority share discount “is an attempt to take into account the difficulty of actually turning an asset into money[,]” its application may be inappropriate when underlying assumptions regarding lack of control and lack of marketability are not supported by the evidence. See Tofte, 895 P.2d at 1392. ¶ 18 Applying these principles to WME, the trial court’s valuation is not supported by the evidence. Husband owns a 50% membership interest in WME, equal to that of the only other member of the limited liability company. The record reflects that Husband holds significant power regarding financial decisions, as evidenced by his decision to convert one-half of his salary to distributions as a tax-saving strategy. Although Husband testified he was unable to alter the terms of WME’s rent, which were fixed by contract, the record does not otherwise reflect any substantial limitations on his joint control of WME as a 50% member. Further, Husband presented no evidence he has any plans to sell his interest in the business. Thus, for WME, the underlying assumptions justifying the application of a minority share discount are not supported by the record. See Davies, 880 P.2d at 1376 (concluding that application of a minority share discount was inappropriate when the record reflected the minority shareholder had “broad powers regarding financial decisions” and had “no intention of selling” his interest). ¶ 19 The trial court therefore abused its discretion by valuing WME at $602,000, substantially below not only Schwartley’s valuation of $1,617,000, but also Koons’ $830,000 fair value valuation (not applying a minority share discount), and even below Koons’ $620,000 valuation that did apply the discount. Accordingly, we vacate the court’s ruling as to WME and remand for a revaluation and equitable distribution of the community’s interest in WME. ¶ 20 Turning to PSC, we conclude the evidence reasonably supports the application of a minority share discount. As with WME, Husband did not testify regarding any intent to sell his interest in the business. Husband only owns a 20% share in PSC, however, and Wife has not cited, nor has our review of the record revealed, any basis for concluding that Husband’s control over PSC is not substantially limited by the holder of the 80% interest. Therefore, because the trial court’s application of a minority share discount and corresponding valuation of PSC at $536,000 is supported by the record, we discern no abuse of discretion. B. Character of WME and PSC Distributions ¶ 21 Wife argues the trial court improperly classified the WME and PSC distributions made subsequent to the filing of the petition for dissolution as Husband’s sole and separate property. ¶ 22 The characterization of property as separate or community is a question of law we review de novo. Bell-Kilbowm v. Bellr-Kilboum, 216 Ariz. 521, 523, ¶ 4, 169 P.3d 111, 113 (App.2007). “Property takes its character as separate or community at the time of acquisition and retains that character throughout the marriage.” Id. at ¶ 5 (internal quotation omitted). As a corollary to this principle, the community is generally “entitled to the profits and gains attributable to community assets.” In re Marriage of Fong, 121 Ariz. 298, 305, 589 P.2d 1330, 1337 (App. 1978). Although property acquired by either spouse after service of a petition for dissolution of marriage is the separate property of the acquiring spouse, the service of a petition for dissolution does not alter the status of preexisting community property. A.R.S. § 25-211(A), (B). Likewise, notwithstanding the filing of a petition for dissolution, when community property “is used to acquire new property,” the new property is community property. A.R.S. § 25-211(B)(2). Because property acquired during marriage is presumed to be community property, the spouse seeking to overcome the presumption has the burden of establishing the separate character of the property by clear and convincing evidence. Brebaugh v. Deane, 211 Ariz. 95, 98, ¶ 6, 118 P.3d 43, 46 (App.2005). ¶ 23 The parties do not dispute that WME and PSC were acquired during the marriage and constitute community property. It is also undisputed that the WME and PSC operating agreements provide for distributions to members in proportion to their percentage interests. ¶ 24 Pursuant to Husband’s WME employment agreement, “[a]ll fees or other income of any kind attributable to [Husband’s] medical services during the [term of employment] shall belong to [WME].” As compensation for his services, the employment agreement provides that WME “shall pay [Husband] a base salary [during the term of employment]” of $250,000. The employment agreement further states that Husband’s base salary “may be adjusted” upon mutual written agreement of Husband and WME. The record does not reflect any written amendment to the employment agreement. ¶ 25 The parties do not dispute that under his employment agreement Husband receives a “base salary” from WME in the amount of $250,000 and that amount, since the time Husband filed the petition for dissolution, is Husband’s sole and separate property. Wife contends, however, that all WME and PSC post-petition distributions in excess of $250,000 constitute profits of the community’s businesses and she is therefore entitled to one-half of the disbursements Husband received before the final decree was entered, when pursuant to court order the character of the businesses was transmuted from community property to Husband’s separate property. Husband counters that all of the distributions were wholly earned income that he received for his toil and labor after his filing of the petition for dissolution and thus constitute his separate property. Cf. Rueschenberg v. Rueschenberg, 219 Ariz. 249, 257, ¶ 31, 196 P.3d 852, 860 (App.2008) (“Where either spouse is engaged in a business whose capital is the separate property of such spouse, the profits of the business are either community or separate in accordance with whether they are the result of the individual toil and application of the spouse, or the inherent qualities of the business itself.”) (quoting Rundle v. Winters, 38 Ariz. 239, 245, 298 P. 929, 931 (1931)). ¶ 26 At trial, Bull testified that notwithstanding the employment agreement, Husband received approximately $500,000 as his annual salary from WME until 2010, when Bull recommended that Husband instead receive $250,000 as salary and the remaining compensation for his labors, an additional $250,000, as distributions to avoid paying Medicare tax. When asked about Wife’s argument that Husband’s salary for his labor was limited to $250,000, Bull disputed her claim and stated that Husband was actually compensated $500,000 for his toil and labor. Bull further testified that, if Husband received all of his compensation for his labor as “salary,” his profit distributions would have been “much less,” in the nature of $50,000 per year. ¶ 27 As noted, the parties agree that Husband’s stated WME salary of $250,000 constitutes his sole and separate property as of the filing of the petition for dissolution. See Brebaugh, 211 Ariz. at 98, ¶ 7,118 P.3d at 46 (recognizing that “compensation for a spouse’s post-dissolution efforts is sole and separate property”). As to the rest of Husband’s compensation, because it is derived from a community asset, Husband bears the burden of establishing the separate nature of all of the distributions he received. See id. at ¶ 6. ¶ 28 The operating agreements for WME and PSC provide that distributions of cash or other property shall be made to the members in proportion to their percentage interests. At trial, Bull testified that before 2010, Husband consistently earned an annual salary of approximately $500,000. In 2010, his compensation was restructured such that he received one-half of his compensation as salary and one-half as distributions. Although the record reflects this change was made as part of a tax-savings strategy and not in anticipation of the divorce, the restructuring is not dispositive as to whether all the distributions made by the two businesses became Husband’s sole and separate property pending the final decree. See Nelson v. Nelson, 114 Ariz. 369, 371, 560 P.2d 1276, 1278 (App.1977) (“[T]he treatment which income receives for tax purposes is not determinative of whether the property is community or separate.”). Instead, determining the amount of Husband’s compensation, for the purpose of deciding whether it is sole and separate property, must take into account that the source of the compensation is an asset owned by both spouses. Therefore, the amount must be reasonable given the totality of the circumstances. ¶ 29 As Bull acknowledged, Husband received a significant amount of money as profit distributions each year, but even if Husband did not work for the businesses, he nonetheless would have been entitled to claim whatever profits or losses were generated by WME and PSC. Although speaking in generalities, Bull testified that the profits disbursed to Husband, in excess of Husband’s compensation for his labor, were approximately $50,000 per year, presumably as to WME. The parties have not identified, and our review of the record does not reveal, any evidence regarding the reasonable amount of compensation Husband received for his toil and labor at PSC. Thus, the trial court’s finding that all monies paid to Husband by WME and PSC are Husband’s sole and separate property is not supported by the record because it failed to adequately consider Wife’s community interest in the two businesses. Nor does the record show that the trial court placed the burden on Husband of proving by clear and convincing evidence that the distributions he received from both businesses over the three-year period should be deemed his sole and separate property. ¶ 30 We therefore vacate the court’s ruling regarding the character of the WME and PSC distributions and remand to determine the amount of compensation Husband reasonably received from WME and PSC for his toil and labor. Any distributions Husband received in excess of that reasonable amount of compensation are attributable to the community as profits derived from existing community assets and subject to equitable division. See A.R.S. § 25-211(B)(2). C. Attorneys’ Fees ¶ 31 Both parties request an award of attorneys’ fees and costs incurred on appeal pursuant to A.R.S. § 25-324, which authorizes such an award after consideration of the financial resources of the parties and the reasonableness of their positions. In our discretion, we award Wife her costs and a portion of her reasonable attorneys’ fees, in an amount to be determined upon her compliance with Arizona Rule of Civil Appellate Procedure 21(a). CONCLUSION ¶ 32 We affirm the trial court’s valuation of PSC but vacate the court’s valuation of WME, as well as its rulings on the WME and PCS interim disbursements, and remand for further proceedings consistent with this decision.

OPINION JACOBSON, Chief Judge. This appeal questions whether error was committed in dismissing, in a wrongful death action, a count of the complaint alleging “negligent entrustment” where negligence in causing the death producing injury was admitted. This action was commenced by appellant, Jose Luis Beltran Quinonez, for and on behalf of himself and his three minor children, Norma, Hilda and Jose Luis, Jr., against appellees, Robert Eugene Andersen and Andersen’s employer, Roofing Wholesale Company, Inc., seeking damages for the wrongful death of Guadalupe Quinonez, Jose’s wife and the mother of the minor appellants. This case was subsequently consolidated with a similar action brought on behalf of seven other children of Mrs. Quinonez by a previous marriage (the Garcia children). Prior to trial, the defendants admitted that Mr. Andersen was negligent in operating a semi-truck owned by his employer by running a red light traffic signal and smashing into an automobile in which Mrs. Quinonez was a passenger. It was also admitted that this negligence was the proximate cause of Mrs. Quinonez’ death and that Andersen was in the course and scope of his employment at the time of the accident. Based upon this admission, the defendants moved to dismiss count two of plaintiffs’ complaint which alleged that Roofing Wholesale negligently entrusted the semi-truck to Andersen’s operation. The alleged facts surrounding the alleged entrustment theory was that Andersen’s previous driving record showed that he had been convicted of striking an unprotected vehicle and leaving the scene of an accident; cited for failure to control a vehicle; dismissal of a driving while intoxicated charge under the P.A.C. program; conviction of an additional DWI charge; a citation for failure to stop at a red light; two speeding citations; a citation for failure to yield the right of way to a pedestrian and a citation for failure to yield right of way from a private driveway. It was further alleged that Roofing Wholesale had failed to comply with state and federal regulations requiring that it obtain and review Andersen’s driving record. Plaintiffs were also prepared to introduce evidence that although the president of Roofing Wholesale was not aware of Andersen’s prior driving record, if he had known about it, Andersen still would have been hired to drive for the company. The trial court granted the motion to dismiss this count. Following this accident, Andersen killed his mistress and was convicted of murder. The trial court precluded any impeachment of Andersen based upon this felony conviction. The matter was tried to a jury which awarded a total of $165,000.00 to all of the plaintiffs, including the three minor appellants, in the sum of $35,000 each. A zero award was given to Mr. Quinonez. The seven Garcia children have satisfied the judgment in their favor and are not parties to this appeal. The issue on appeal are: 1. Did the trial court err in dismissing the negligent entrustment count? 2. Did the trial court err in refusing to allow impeachment for a felony committed after the accident? 3. Was the verdict awarding no damages to Quinonez supported by the evidence? and, 4. Did the trial court properly refuse an instruction on punitive damages? An additional issue is raised by the appellees, that is, assuming error was committed in the admission of evidence going to damages, can the court grant a new trial on damages where all the beneficial survivors of Mrs. Quinonez are not before the court? The appellants’ basic contention on appeal is that the trial court erred in dismissing as against Roofing Wholesale, individually, the negligent entrustment count of their complaint. To put this issue into proper perspective, this count is only material in allowing the appellants to bring to the jury’s attention Andersen’s horrendous driving record. In turn, this evidence would only be material to proving “aggravating circumstances” (that is, punitive damages) under A.R.S. § 12-613 , against Roofing Wholesale, individually, as the negligence of its employee and its respondeat superior liability were admitted. We therefore must determine whether “negligent entrustment”, is a tort, separate and apart from proof of respondeat superior liability, and, if so, whether evidence, which would prove that negligence, is admissible as an “aggravating circumstance” under A.R.S. § 12-613. Before turning to this determination, we dispose of appellees’ contention that no new trial for damages can be held since all of the Garcia children have accepted the verdicts and satisfied the judgments awarded them. Appellees urge that under A.R.S. § 12-612(C), it is not only the jury’s function to award damages, but also to apportion those damages among the persons who have a statutory right to participate in the award. The argument continues that in absence of all the parties who are entitled to participate in the award (the Garcia children) the jury in a new damage trial cannot exercise the apportionment-function and therefore no new trial on damages can occur. We disagree. A.R.S. § 12-612(C) provides, in part: The amount recovered in any action for wrongful death shall be distributed to the parties ... in proportion to their damages____ The “proportion” of damages which each of the statutory beneficiaries is entitled to recover is not based upon an equal division among the beneficiaries, but that proportionality must be measured by the individual pecuniary loss suffered by each. Nunez v. Nunez, 25 Ariz.App. 558, 545 P.2d 69 (1976). The Garcia children, by not appealing and by satisfying the judgment establishing their individual pecuniary interest, are now precluded from contending that the amount of their individual pecuniary loss is more than that which they accepted. See Shirley v. Mahoney, 26 Ariz.App. 498, 549 P.2d 593 (1976). However, since the statutory beneficiaries take on an individual loss basis rather than on a pro rata basis, there is nothing in A.R.S. § 12-612(C) which would prohibit an individual beneficiary from contending and proving that he or she was entitled to a greater portion of the award than other like statutory beneficiaries, and in fact, such a beneficiary is entitled to separate counsel to establish that entitlement. See Nunez v. Nunez, supra. This is true even though there is but “one” plaintiff and “one” judgment. Nunez, Id. Likewise, because apportionment is based on individual pecuniary loss, there is nothing in A.R.S. § 12-612(C) which prohibits an individual statutory beneficiary from appealing the inadequacy or evidentiary insufficiency of that individual award, regardless of the merits of an award to other statutory beneficiaries. If the appellants can establish that their individual awards were legally defective, they may obtain a new trial on what they, individually, are entitled to recover, there being no statutory basis that other beneficiaries of the same class are entitled to share in that recovery. We, therefore, hold that the absence of any one of the statutory benefici aries does not preclude initially, or upon a new trial, the jury exercising its statutory function to award individual damages. We now turn to the issue of whether appellants were entitled to present to the jury Andersen’s driving record under a theory of negligent entrustment. Appellees contend that Arizona does not recognize a tort of negligent entrustment separate and apart from the theory of respondeat liability. Authority for this position is found in Lewis v. Southern Pacific Company, 102 Ariz. 108, 425 P.2d 840 (1967) which stated: If the defendant employees were actually negligent at the time of the accident and proximately caused the accident, this is sufficient to establish the [employer’s] liability. But the failure of an employer to hire only competent and experienced employees does not in and of itself constitute an independent ground of actionable negligence. Lewis can probably be distinguished on the basis that the employees in that case were found by a jury not to have been negligent and therefore the negligence of any employer in hiring such employees was not a proximate cause of the plaintiff’s injuries. However, if Lems stands for anything more, we are of the opinion that it no longer represents the law.in Arizona on this subject. We recently had occasion to discuss Lewis in the context of “negligent hiring” in the case of Pruitt v. Pavelin, 141 Ariz. 195, 685 P.2d 1347 (1984) and concluded that the position taken by Restatement (Second) of Torts, is now the law in Arizona. (See Dissent, Jacobson, C.J.) Section 307 of Restatement (Second) of Torts (1965) provides: It is negligence to use an instrumentality, whether a human being or a thing, which the actor knows or should know to be so incompetent, inappropriate or defective, that its use involves an unreasonable risk of harm to others. Comment (d) to the companion section in Restatement (Second) of Agency, § 213 (1952) points out: Liability results under the rule ... not because of the relation of the parties, but because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment. Thus, the liability is direct and not derivative. Normally, it is immaterial to the injured plaintiff whether the deep pocket of the employer is reached through derivative liability or direct liability. However, the issue may become important on the admissibility of evidence and hence, damages in an individual case. For example, it is clear that in establishing whether Andersen was negligent in running the red light, his prior driving record is immaterial. Rule 404, Arizona Rules of Evidence. However, in determining whether Roofing Wholesale employed an incompetent driver, Andersen’s driving record and Roofing Wholesale’s investigation to determine that record becomes very material. See Anderson Aviation Sales Company, Inc. v. Perez, 19 Ariz.App. 422, 508 P.2d 87 (1973). We therefore reject appellees’ contention that appellants received all they were entitled to by having the case submitted to the jury on the theory of respondeat superior. We likewise reject their contention that a wrongful death action is a monolithic structure incapable of containing more than one theory of negligence at a time. A.R.S. § 12-611 imposes liability if the death of a person “is caused by wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof____” We hold that Mrs. Quinonez, if she had survived, could have maintained an action against Roofing Wholesale, directly under a § 307, Restatement (Second) of Torts, theory, and under a theory of respondeat superior. The trial court erred in dismissing Count II of appellants’ complaint on the belief that such a cause of action does not exist in Arizona. Appellees correctly point out, however, that the evidence which would support a theory of direct liability against Wholesale Roofing, under the circumstances of this case, is only material on the issue of aggravating circumstances affecting punitive damages. The argument continues that this evidence is inadmissible for the purpose of establishing aggravating circumstances because such acts were not involved in the death producing event. In other words, appellees argue that under A.R.S. § 12-613, the only circumstances which the jury may consider as aggravating are those which directly cause death. Again, we disagree. A.R.S. § 12-613 provides that the jury in arriving at a fair and just award may consider the “aggravating circumstances attending the wrongful act, neglect or default.” The “wrongful act, neglect or default” referred to is the event which gives rise to liability under A.R.S. § 12-611. Insofar as Wholesale Roofing’s direct liability is concerned, its “wrongful act” was the employment of an incompetent driver. We do not determine here whether the circumstances surrounding that hiring rise to the level of “aggravating circumstances”, as the issue of whether even negligence has been shown in this regard has not been determined. Suffice it to say that material evidence on the issue of damages was withheld from the jury, which might bear on the issue of damages awarded in this case. A new trial must be held. We now determine which of the appellants are entitled to a new trial. Appellant Jose Quinonez has contended in this appeal that the jury award of no damages insofar as he is concerned is not supported by the evidence. The record is to the contrary. As previously noted, A.R.S. § 12-613 reserves to the jury to award such damages as are “fair and just.” We have also previously noted that the measure of damages depends upon the individual pecuniary loss suffered by each statutory beneficiary. Evidence was presented that Mr. Quinonez would regularly come home drunk, yell and curse at his wife and beat her with his fists. When the children tried to intercede in these frays, he would throw the children out of the house. Mr. Quinonez told his wife he was going to divorce her and Mrs. Quinonez told her daughter she was going to divorce him. At the time of the fatal accident, Mrs. Quinonez was on her way to bail her husband out of jail. The evidence also showed that the minor children were now in the home of a relative and that no charges were being made to Mr. Quinonez for this service. Mr. Quinonez did present expert testimony showing economic loss by reason of his wife’s death. However, under all of the circumstances, the jury may have concluded that all that Mr. Quinonez lost was a punching bag and a just and fair award for this loss was zero. In our opinion, the evidence justified such an award. Having determined that the jury could have properly concluded that Mr. Quinonez suffered no actual damage as a result of the loss of his wife, it necessarily follows that error in the failure to admit aggravating circumstances evidence was not detrimental as to him. It is now well settled in Arizona that the term “aggravating circumstances” as used in A.R.S. § 12-613, contemplates the imposition of punitive damages in a wrongful death action. Boies v. Cole, 99 Ariz. 198, 407 P.2d 917 (1965). It is equally well settled that a party is not entitled to punitive damages in absence of a finding that this same party suffered actual damages. Hall v. Motorists Ins. Corp., 109 Ariz. 334, 509 P.2d 604 (1973). Since the jury properly concluded that Mr. Quinonez suffered no actual damages, any error in not admitting punitive damage evidence is harmless error as to him. Therefore, a new trial in this matter must be limited to the minors and the judgment as to Mr. Quinonez is affirmed. In the same vein, appellants’ contention that the trial court erred in refusing a separate instruction on punitive damages is not well taken. The trial court instructed the jury in accordance with A.R.S. § 12-613 which included the “aggravating circumstances” language. Having done so, appellants were not entitled to a separate instruction dealing with the same subject matter — punitive damages. Southern Pacific Company v. Barnes, 3 Ariz. App. 483, 415 P.2d 579 (1966); Welch v. McClure, 123 Ariz. 161, 598 P.2d 980 (1979). Finally, the appellants contend that the trial court erred in refusing to allow impeachment of Andersen, by reason of his prior felony conviction for a murder occurring after the accident in question. Rule 609, Arizona Rules of Evidence, provides for the admission of a prior felony conviction for the purpose of attacking the credibility of a witness where “the court determines that the probative value of admitting this evidence outweighs the prejudicial effect to the defendant.” The admission of such evidence is within the discretion of the trial court. State v. Watkins, 133 Ariz. 1, 648 P.2d 116 (1982). We first note that such evidence which had nothing to do with the Quinonez litigation may be highly prejudicial to the defendant, Roofing Wholesale. Secondly, the appellants do not point out how such evidence would “impeach” Andersen where his negligence in causing the death was admitted. Thirdly, such evidence which goes directly to the character of the individual defendant was immaterial to any issue presented to the jury. Forquer v. Pinal County, 22 Ariz.App. 266, 526 P.2d 1064 (1974). Under these circumstances, we find that the trial court did not abuse its discretion in excluding the felony conviction evidence. The judgment as to Norma Quinonez, Hilda Quinonez and Jose Luis Quinonez, Jr. is reversed and the matter remanded for a new trial. The judgment as to Jose Luis Beltran Quinonez is affirmed. MEYERSON, P.J., and OGG, J., concur. . A.R.S. § 12-613 provides: In 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 of the surviving parties who may be entitled to recover, and also having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default. (Emphasis added.) . We are unable to determine what, if any, influence the dismissal of Count II of the complaint had on the appellees' decision to admit respondeat superior liability in this matter. Therefore, appellees on retrial are relieved of this admission.

CAMERON, Justice. In State v. Poland, 132 Ariz. 269, 645 P.2d 784 (1982) (Poland I), we reversed defendant Patrick Poland’s convictions for two counts of first degree murder with sentences of death and remanded for a new trial. Upon remand, defendant was retried before a jury and again found guilty of two counts of first degree murder in violation of A.R.S. § 13-1105(A)(1). He was again sentenced to death. A.R.S. § 13-703. We have jurisdiction pursuant to Art. 6, § 5(3) of the Arizona Constitution, and A.R.S. §§ 13-4031 and 13-4035. Defendant raises the following questions on appeal: 1. Pretrial Issues: (a) Was defendant improperly denied: (i) a peremptory change of the trial judge? (ii) a change of judge for cause? (b) Did the trial court improperly refuse to strike two jurors for cause? (c) Did the trial court improperly refuse to allow testimony by an expert on eyewitness identification? (d) Did the trial court err in refusing to suppress physical evidence obtained as the result of an alleged illegal search and insufficient search warrant? 2. Trial Issues: (a) Did the trial court err in admitting into evidence defendant’s prior conviction for bank robbery? (b) Was the prior testimony of hypnotized witness, Stanley Sekulski, improperly read to the jury? (c) Did the trial court commit reversible error by admitting a gruesome photograph into evidence? (d) In light of our prior ruling in Poland I, supra, that a taser gun was improperly admitted into evidence, did the trial court improperly admit a receipt showing that weapon’s purchase, the box for the weapon, and testimony thereon? (e) Did the trial court err in failing to grant a mistrial when the prosecution introduced a previously undisclosed statement of defendant? (f) Did the trial court err in failing to define “intent” as part of its jury instruction on aiding and abetting? 3. Death Penalty Issues: (a) Is A.R.S. § 13-703, the death penalty statute, constitutional? (b) Did reimposition of the death penalty constitute double jeopardy? (c) Were the aggravating circumstances found in this case proven beyond a reasonable doubt? (d) Did the trial court improperly refuse to consider certain mitigating factors offered by defendant? (e) Is defendant’s sentence proportional to sentences imposed in similar cases in Arizona? The facts necessary for a determination of this matter on appeal are as follows: At approximately 8 A.M. on 24 May 1977, a Purolator van containing some $328,180 in cash left Phoenix on a routine delivery to banks in various towns in northern Arizona. When the van failed to make its deliveries, the authorities were notified. The abandoned van with some $35,150 in cash was discovered early the next day a short distance off Highway 1-17. The evidence revealed that on the morning of 24 May 1977, a number of passing motorists had noticed a Purolator van pulled over to the side of Highway 1-17 by what appeared to be a police car. Some witnesses identified the two uniformed men as Michael and Patrick Poland. The evidence also showed that on 24 May 1977, Michael and Patrick Poland borrowed a pickup truck and tarpaulin from their father, George Poland. Early on 25 May 1977, Michael Poland rented a boat at the Temple Bar Marina on Lake Mead. He stated that he planned to meet his brother Patrick at Bonelli Landing, a primitive camping area on the Lake, and to do some fishing. At some point, George Poland’s truck became stuck in the sand at the water’s edge at Bonelli Landing with the tailgate facing the water. After their attempts to extricate it had failed, the Po-lands called a towing service. Stan Sekulski was the operator of the tow truck. A few days later, the Polands returned their father’s truck with a new tarp, explaining the old one had been ruined when they placed it under the wheels of the truck for traction. Three weeks later, the body of Cecil Newkirk, one of the guards of the Purolator van, surfaced on Debbie’s Cove, a small inlet on the Nevada side of Lake Mead. The body was partially covered by a canvas bag. A week later, park rangers searching the area discovered the body of the other Purolator guard, Russell Dempsey, a short distance from the place Cecil Newkirk’s body had been found. Autopsies revealed that the most probable cause of death was drowning, although in the case of Mr. Dempsey the pathologist was unable to rule out a heart attack as a possible cause of death. The bodies had been in the water two weeks or longer. There was no evidence that the guards had been wounded or tied before being placed in the water. Although it was impossible to determine whether they had been drugged, there was no evidence of a struggle. Divers searching the area recovered two other canvas bags, one containing a tarp and blanket. They also brought up two revolvers, which were identified as belonging to the guards, and a license plate bearing the insignia found on Arizona Department of Public Safety automobiles. These were found near a pile of rocks which had evidently fallen out of the bag when it was recovered by a diver. The rocks were of the type found along the shore of Debbie’s Cove. Searches of the homes of Michael and Patrick Poland on 27 July 1977 revealed a number of weapons, including a taser gun, large amounts of cash, and items of police-type paraphernalia. Of particular interest were a scanner and scanner key which were capable of monitoring radio frequencies, a notebook listing local police frequencies, a receipt for a taser gun bearing the name Mark Harris, handcuff cases, and a gunbelt. Both of the Polands’ rented cars, light-colored Chevrolet Malibus, had siren-type burglar alarms which could be activated from inside or outside of the car. Evidence also connected the Polands to the purchase of a “light bar” or rack which could be placed on top of an automobile and would resemble a law enforcement light bar or rack. The canvas bags found in the lake were shown to have been purchased by a Mark Harris. Although neither Michael nor Patrick Poland had regular employment, the evidence showed that they made numerous large purchases during June and July of 1977. These purchases included appliances, furniture, motorcycles, and a business. Most of the purchases were made in cash or by a cashier’s check. The defense was alibi. Patrick took the stand and testified that both he and his brother had disguised themselves as law enforcement officers and robbed drug dealers on three occasions in early 1977. They testified that they had also been dealing in gems for several months prior to the Purolator incident and that, on 24 May 1977, they had taken a load of raw turquoise to Las Vegas and returned by way of Lake Mead to do some camping. Michael and Patrick Poland were convicted. They appealed and we reversed and remanded based upon jury misconduct. See Poland I, supra. On remand, defendants were again convicted and sentenced to death. We consider the appeal of Patrick Poland. PRETRIAL ISSUES a. Change of Judge The mandate in Poland I was filed in this Court and mailed to the Yavapai County Superior Court on 26 May 1982. On 8 June the county attorney moved to dismiss the case. The motion to dismiss was not heard until 21 June, at which time it was denied. On 19 July, special deputies were appointed to prosecute and defendant filed motions for change of judge pursuant to Rule 10.2, Arizona Rules of Criminal Procedure, 17 A.R.S., and to disqualify the judge for cause pursuant to Rule 10.1, Arizona Rules of Criminal Procedure, 17 A.R.S. These motions were heard and denied by another judge. The peremptory challenge motion was denied because it was untimely, and the change of judge for cause motion was denied because bias or prejudice was not shown. i. Peremptory Change of Judge We first consider defendant’s contention that the trial court committed reversible error in denying his peremptory motion for a change of judge. Our rule regarding change of judge upon request states: a. Entitlement. In any criminal case in Superior Court, any party shall be entitled to request a change of judge. * * * # * * c. Time for Filing. A notice of change of judge shall be filed, or informal request made, within 10 days after any of the following: (2) Filing of the mandate from an Appellate Court with the clerk of the Superior Court; Rule 10.2(a), (c)(2), Arizona Rules of Criminal Procedure, 17 A.R.S. Our Poland I mandate was filed and mailed on 26 May 1982. The parties agree that defendant had 15 days, (10 days pursuant to Rule 10.2, supra, and 5 days for mailing pursuant to Rule 1.3, Arizona Rules of Criminal Procedure, 17 A.R.S.) to move to disqualify the judge without cause. The motion was not made until 19 July, some 54 days after the issuance of the mandate. This was too late and the motion was properly denied as untimely. Defendant contends, however, that strict compliance with the rule should be waived because he relied upon the State’s 8 June motion to dismiss and, therefore, did not believe that he would go to trial. Had the motion to dismiss been granted, a motion for change of judge would have been unnecessary. Admittedly, strict compliance with a rule like ours can be waived where the peremptory challenge is made diligently and as soon as practicable. Smith v. State, 616 P.2d 863, 865 (Alaska 1980) (“Insofar as each challenge was made almost immediately after the parties learned of the judicial assignment for trial, it cannot be said that their rights to challenge were waived through untimeliness.”), Riley v. State, 608 P.2d 27 (Alaska 1980) (strict compliance was waived where counsel exercised the challenge promptly upon being appointed). In the instant case, however, defendant did not act diligently to protect his peremptory challenge rights. The motion to dismiss did not extend the time for filing the motion for change of judge. We find no reason to waive the time limits of the rule. Furthermore, by participating in these hearings, defendant waived his peremptory challenge rights pursuant to Rule 10.4(a), Arizona Rules of Criminal Procedure, 17 A.R.S., which provides in pertinent part that “[a] party loses his right under Rule 10.2 to a change of judge when he participates before that judge in any contested matter in the case, [or] * * * any pretrial hearing * * In other words, if a party participates in a hearing which involves a contested issue of law or fact, the right to a peremptory challenge of the judge is waived. Itasca State Bank v. Superior Court, 8 Ariz.App. 279, 445 P.2d 555 (1968). The hearings in this case involved contested issues insofar as the parties disagreed on the important question of whether the requested dismissal would be with or without prejudice. This case can then be distinguished from City of Sierra Vista v. Cochise Enterprises, Inc., 128 Ariz. 467, 626 P.2d 1099 (App.1979), in which it was held that a hearing on a stipulated, and therefore uncontested, motion to dismiss with prejudice did not result in a waiver. ii. Change of Judge for Cause Defendant next maintains that he was denied a fair trial because the judge who sentenced him to death in Poland I, supra, presided over his retrial. He argues that his motion for change of judge for cause, therefore, should have been granted, or alternatively, that it was error for the trial judge not to have recused himself. We do not agree for two reasons. First, the motion was not timely. Rule 10.1(b), Arizona Rules of Criminal Procedure, 17 A.R.S., states: Within 10 days after discovery that grounds exist for change of judge, but not after commencement of a hearing or trial, a party may file a motion verified by affidavit of the moving party and alleging specifically the grounds for the change. The ground for the change was the judge's participation in the prior trial. This was known at the time of remand. Admittedly, defendant may not have known the judge was to retry the case at that time. The defendant was aware, however, of the judge’s participation by the time of the first hearing on the motion to dismiss on 21 June. Defendant’s motion for change of judge filed 19 July came too late. Second, even assuming the timeliness of the motion to disqualify, its denial was still correct. Defendant relied upon State v. Vickers, which states: We have held that even though the judge had prior knowledge of defendant’s past bad acts, he need not disqualify himself, so long as the facts are those which would ordinarily be found in a presentence report and the defendant knew the factual basis upon which the judge imposed the sentence. In a death penalty case, however, which is treated differently from non-death penalty cases, we believe that there is an appearance of impropriety when a judge who has sentenced the defendant to death in a prior case, also tries the same defendant for another potential death penalty offense. The judge should have recused himself from trying this defendant for the second murder. 138 Ariz. 450, 452, 675 P.2d 710, 712 (1983). (Citations omitted.) In Vickers, however, the judge had sentenced the same defendant to death in a prior but different murder case. Unlike the case before us, which involves the same crimes on retrial, Vickers involved death sentences for two distinct crimes. We did not believe that the judge in Vickers would be able to put aside the bias that he would have because of knowledge of the facts of the other crime. In the retrial of the same crime by the same judge, however, there is only the repetition of the same facts — the same facts that would be heard by any judge who tries the case. Under these circumstances, it can not be said that the prior trial prejudiced the judge the second time around. We find no error. b. Refusal to Strike Jurors Defendant argues that the court erred in refusing to strike two jurors for cause. John Matthews testified on voir dire that he had heard and read about the case from T.V., radio, and newspapers. He answered the court’s questions as follows: BY THE COURT: Q Do you remember any of the specifics of any of the accounts that you have seen on television or heard on or about radio? A. Well, just that they were going to retry them, have a retrial. Q. So you are aware this is a retrial? A. Yes, right. Q. Now going back to the earlier accounts that you had seen and as you followed through the case, in that period of time did you form any opinion of your own concerning the guilt or the innocence of the Defendants? A I would say so. Q Do you understand if you were picked as a juror in this case it would be necessary for you to decide this case only on the evidence and the testimony presented here in the courtroom? A Yes. Q And that you would have to put from your mind anything that you had seen or heard or read or knew about the case in any form whatsoever? A Yes. Q Do you understand that? A Yes. Q Do you feel you could do that? A I probably could. Q Do you feel you could fairly and impartially judge this case solely on what was presented to you here in this courtroom in this trial? A Probably could. Q And that you could, when you went to the jury room, if you were a member of the jury, not discuss anything that took place prior or permit anyone else to talk to you about anything that took place prior? A Probably could. Q You could do that? A Probably. In response to the prosecutor’s question, the juror testified that he would be able to vote not guilty if the State failed in the burden of proof. In response to the question of defendant’s counsel: Q Haven’t you told the Judge that you previously formed an opinion that Michael and Patrick Poland were guilty based on what you had read and seen about the case? A He was found guilty in the first case. Q Right. And is the fact that they were found guilty in the first case, is that going to somehow influence your decision if you sit as a juror in this case? A No. Q You can totally wipe that out of your mind? A Well, as far as I know. Q Do you realize, Mr. Matthews, that anyone who is charged with a crime is presumed innocent by the law until proven guilty beyond a reasonable doubt? A Yes, sir. Q Let me ask you one more question: as you sit here today and you look at these Defendants, knowing what you know about the case, knowing about the prior proceedings, do you have any feeling in your mind that these men are guilty? A No. The other juror objected to by defendant, Cynthia Dea Benavidez, testified as follows: BY THE COURT: Q Mrs. Benavidez, you indicated you had seen or heard or read or know something about this case, is that right? A Yeah, I have seen on T.V. news and stuff. Q Okay. You have seen it on T.V. ****** A Yes. Q And when would that have been, ma’am? A Oh, I don’t know the exact time. Just when the trials come up and, you know, what you see on T.V. news. Q Okay. Do you realize if you were selected as a member of this jury you would have to decide guilt or innocence based only on what was presented here in this courtroom? A Yes, that’s what I know. Q And do you think you could do that? A No. Q You don’t think you could put all the things you have seen out of your mind and decide this case only on the evidence and testimony presented here in the courtroom? A Well, maybe I could, because I really haven’t followed that close, but I just— Q I know it’s a tough question. A But just from what I know I thought they were guilty. Q I know this is tough. We have to look into your mind. A I think I have already formed an opinion, but I — I don’t know that much about Court and stuff, you know. Q Well, in a Court you would have an opening statement presented by both sides in the action, you would have witnesses who would be placed under oath and take the stand and sit where you are sitting, they would be asked questions. After all the evidence and testimony had been presented, then the lawyers would argue the case and the evidence as they saw it, and then I would instruct you on the law that governs this case and it would be your duty to follow that law, and then and only then would you go into the jury room with the other jurors and decide the case. Do you think you could do that or do you think you could not? A I think I could. The prosecutor and attorneys for defendant also questioned Cynthia Dea Benavidez as follows: BY THE PROSECUTOR Q Would you be able to fairly and impartially judge the case so that at the end of the case if the State had proved the Defendants guilty beyond a reasonable doubt you could find them guilty, and if the State has failed in its burden you would find them not guilty? Could you do that? A Sure, if I sit and listen to it all I’m sure my mind could still be open. Q Okay. Could you — do you think you would have the ability, and I am sure having watched television, that occasionally people — memories will come back, programs you saw something on television that a witness is talking about now. Would you be able to set aside that which you saw on television and judge each witness and their performance and their testimony and their evidence and base your decision only on that evidence and nothing else? A Yes, I could, because I don’t really remember that much about it. BY DEFENDANT’S ATTORNEY Q All right. And you do understand that Michael and Patrick Poland have the right to a fair trial? A Yes I understand. I know the system. I’m thankful for that. Q Right. And that if the State hadn’t proved its burden, then all that you had heard, all that you had read, could not be used to otherwise convict them. Do you understand that? A Yes. Q If you were charged with murder, ma’am, would you feel comfortable hav ing someone with your frame of mind and knowing what you know sitting on the jury and judge you? A No. Q You think what you know is going to influence, even subconsciously, your verdict in this case? A I don’t — well, like — um—if I had to sit and listen to everything, you know, then make an opinion, it might be different. Q But right now if you were being tried for murder you wouldn’t want someone with your frame of mind judging you? A Well not from what I have already saw. Q That’s what I mean. A No. BY THE COURT: Q The bottom line, Mrs. Benavidez, has to be whether or not you feel if you were on the jury you could judge this case solely on the evidence and testimony presented here in the courtroom and on that basis render a verdict? A I think I could do that. We have held that because a juror has preconceived notions or opinions does not necessarily render him incompetent to fairly and impartially decide a case. State v. Clabourne, 142 Ariz. 335, 690 P.2d 54, 63 (1984); State v. Tison, 129 Ariz. 526, 533, 633 P.2d 335, 342 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982). If a juror is willing to put aside his opinions and base his decision solely upon the evidence, he may serve. See Claboume, supra; State v. Greenawalt, 128 Ariz. 388, 394, 626 P.2d 118, 124, cert. denied, 454 U.S. 848, 102 S.Ct. 167, 70 L.Ed.2d 136 (1981). The voir dire may be used for the purpose of rehabilitating a juror by convincing him of his responsibility to sit impartially. Clabourne, supra; State v. Clayton, 109 Ariz. 587, 593, 514 P.2d 720, 727 (1973). We will not set aside a ruling upon a challenge to a juror absent a clear showing that the trial court abused its discretion. State v. Montano, 136 Ariz. 605, 607, 667 P.2d 1320, 1322 (1983). Because the record shows the contested jurors were adequately rehabilitated through the voir dire, the trial court did not abuse its discretion in failing to strike them. We find no error. c. Expert Eyewitness Identification Testimony Prior to trial, the State moved to suppress expert testimony regarding eyewitness identification. The trial court granted the motion. Defendant argues that the trial court abused its discretion in not allowing the presentation of expert testimony on eyewitness identification. We do not agree. The test for preclusion of expert testimony “is whether the subject of inquiry is one of such common knowledge that people of ordinary education could reach a conclusion as intelligently as the witness * * *.” State v. Owens, 112 Ariz. 223, 227, 540 P.2d 695, 699 (1975). Expert testimony on eyewitness identification is usually precluded because it invades the province of the jury to determine what weight or effect it wishes to give to eyewitness testimony. It is usually not a proper subject for expert testimony. We have, however, previously sanctioned the use of expert testimony on eyewitness identification: The admissibility of expert testimony is governed by Rule 702, Ariz.R. of Evid. That rule states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. In what is probably the leading case on the subject, the Ninth Circuit affirmed the trial court’s preclusion of expert evidence on eyewitness identification in United States v. Amaral, 488 F.2d 1148 (9th Cir.1973). In its analysis, however, the court set out, four criteria which should be applied in order to determine the admissibility of such testimony. These are: (1) qualified expert; (2) proper subject; (3) conformity to a generally accepted explanatory theory; and (4) probative value compared to prejudicial effect. Id. at 1153. We approve this test and find that the case at bar meets these criteria. We recognize that the cases that have considered the subject have uniformly affirmed trial court rulings denying admission of this type of testimony. However, a careful reading of these cases reveals that many of them contain fact situations which fail to meet the Amaral criteria or are decided on legal principles which differ from those we follow in Arizona. State v. Chapple, 135 Ariz. 281, 291, 660 P.2d 1208 (1983). Our holding in Chappie was limited to the peculiar facts of that case. As we noted, “[n]o direct or circumstantial evidence of any kind connected] defendant to the crime, other than the testimony of [the eyewitnesses] * * Id. at 285, 660 P.2d at 1212 (footnote omitted). We specifically stated, however, that “The rule in Arizona will continue to be that in the usual case we will support the trial court’s discretionary ruling on admissibility of expert testimony on eyewitness identification.” Id. at 297, 660 P.2d at 1224. See also People v. McDonald, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709 (1984) (adopting the rule of limited usage outlined in Chapple); Note, Expert Testimony on Eyewitness Identification: Invading the Province of the Jury?, 26 Ariz.L.Rev. 399 (1984) (cautioning against the widespread use of such testimony). Under the facts of this case, the trial court did not abuse its discretion in refusing to allow the introduction of expert testimony on eyewitness identification. The peculiar facts of Chap-pie were not present in the instant case. The question of guilt did not hinge solely on the testimony of eyewitnesses. There was nothing that the witness would testify to that was not within the common experience of the jurors. State v. Owens, supra, 112 Ariz. at 227, 540 P.2d at 699. The probative value of the testimony did not overcome the prejudicial effect. Chappie, supra. We find no error. d. Suppression of Material Evidence During the investigation of the crimes, an FBI agent learned that the home Michael Poland had been renting was for sale. Posing as a buyer, the agent went through the house and later testified as to what he saw. Defendant claims this was an illegal entry. Defendant also questions the sufficiency of an affidavit in support of a search warrant. We considered the same issues based upon the same facts in the prior case, Poland I, 132 Ariz. at 277-78, 645 P.2d at 792-93. We found no error then and we find no error now. TRIAL ISSUES a. Prior Conviction Defendant contends that the trial court abused its discretion by allowing defendant to be impeached with a prior felony conviction for bank robbery. Our Rules of Evidence state in pertinent part: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record, if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, and if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involved dishonesty or false statement, regardless of the punishment. Rule 609(a), Arizona Rules of Evidence, 17A A.R.S. Defendant does not assert that his prior conviction is not governed by this rule or that it was too remote in time to be used. Rather, he claims that the trial court did not make the requisite finding that the probative value of using the prior convic tion for impeachment purposes outweighed any prejudicial effect. In making the motion to preclude the use of the prior conviction, defendant’s attorney stated: Our motion is based on Rule 609 of the Arizona Rules of Evidence. The primary thrust of our motion is that the potential for prejudice in introducing this prior conviction will outweigh any probative value it might have for impeachment purposes. The main fear that I have is that the jury will utilize this conviction as substantive evidence of guilt rather than utilizing it for the limited purpose of deciding the truthfulness or non-truthfulness of any testimony that the witness offers. (Emphasis ours.) After argument on the motion, the court took the matter under advisement and then ruled as follows: The rulings I’m prepared to make are that the Defendants’ motion to preclude the use of the prior conviction is denied. I have spent a good deal of time reviewing this motion and the arguments and the opposition to it. I believe that, under the rules, that the use of that prior conviction can be used to impeach the Defendant if the Defendant elects to testify. We agree that the preferred method for complying with Rule 609 is a specific on-the-record finding that the probative value of using a prior conviction for impeachment outweighs the danger of unfair prejudice. State v. Hunter, 137 Ariz. 234, 237, 669 P.2d 1011, 1014 (App.1983); State v. Dixon, 127 Ariz. 554, 558, 622 P.2d 501, 505 (App.1980). Where, however, it is clear from a reading of the record that the probative value has been balanced against the prejudice, a specific finding need not be made. See State v. Ellerson, 125 Ariz. 249, 252, 609 P.2d 64, 67 (1980). It appears that the trial judge in the instant case did balance the probative value against the potential prejudicial effect. The decision whether to admit evidence of the prior conviction for impeachment purposes was within the sound discretion of the trial court. State v. McElyea, 130 Ariz. 185, 188, 635 P.2d 170, 173 (1981). We find no abuse of that discretion. Id. Neither do we believe that the trial judge ruled incorrectly. Because defendant relied upon an alibi defense, impeachment evidence was vitally important to the State. The significance of such evidence in similar situations has been recognized. See State v. Gillies, 135 Ariz. 500, 507, 662 P.2d 1007, 1014 (1983). We find no error. b. Hypnotized Witness Stanley Sekulski, the tow truck operator who pulled the truck out of the sand at Bonelli Landing, was a potential witness against the defendant. He had been hypnotized prior to trial. For other reasons, he was found incompetent to testify. Instead the testimony he gave at defendant’s first trial was read to the jury. This testimony was first edited, however, to reflect solely the recall he had prior to his being hypnotized during the investigative phase of the case. This was done by using the pre-hypnotic statements made to the police and the FBI. The cross-examination was, however, read in its entirety. Defendant maintains, nevertheless, that this procedure deprived him of the right to confront and cross-examine a witness against him, U.S. Const, amend. VI; amend. XIV. We do not agree. First, we note that the use of former testimony is a recognized exception to the rule against hearsay whenever a witness is declared incompetent to testify or is otherwise unavailable. Rule 804(b)(1), Arizona Rules of Evidence, 17A A.R.S. In the instant case, it was agreed that the witness was in fact incompetent to testify. Second, although a witness is rendered incompetent to testify as to the recall induced through hypnosis, he may testify to facts demonstrably recalled prior to hypnosis: We further minimize the risk [of using the testimony of a hypnotized witness] by requiring that before hypnotizing a potential witness for investigatory pur poses, the party intending to offer the prehypnotic recall appropriately record in written, tape recorded or, preferably, videotaped form the substance of the witness’ knowledge and recollection about the evidence in question so that the prehypnotic recall may be established. Such recordation must be preserved so that at trial the testimony of that witness can be limited to the prehypnotic recall. If such steps are not taken, admission of the prehypnotic recall will be error, which, if prejudicial, will require reversal. State ex rel. Collins v. Superior Court, 132 Ariz. 180, 210, 644 P.2d 1266, 1296 (1982). In the instant case, the trial court ruled that FBI 302 reports and Las Vegas Police Department reports met the recordation requirement. Such reports are regularly used to summarize witness interviews, and in this case, they were used to edit Sekulski’s former testimony to reflect only his prehypnotic recall. We imposed the requirement of a prehypnotic record to mitigate the danger of subsequent hypnosis contaminating testimony of facts recalled prior to hypnosis. Id. Although we continue to adhere to the view expressed in Collins that videotaping is the preferred method for preserving prehypnotic recall, in the instant case, the FBI and police reports adequately enabled the parties to segregate the prehypnotic recall from post hypnotic testimony. From these reports, prepared prior to any hypnotic sessions, the transcript was edited to reflect only Sekulski’s prehypnotic recall. The attendant risks were further minimized through the reading of Sekulski’s cross-examination in its entirety. Id. Furthermore, had defendant elected, he could have introduced expert testimony to show that Sekulski’s prehypnotic recall was tainted by his subsequent hypnosis. Id. Under these facts, the risks inherent in using the testimony of the previously hypnotized witness were minimized in accordance with our decision in Collins. We find no error. c. Gruesome Photographs Defendant contends that the trial court abused its discretion in admitting two gruesome photographs into evidence. We will consider only one photograph, however, as we do not believe that the photograph of the fully clothed body of one of the victims lying face down near the area where it surfaced was gruesome. The court found the second photograph to be gruesome and we agree. The photograph was a closeup of the torso and decomposed head of one of the victims. It shows him clad in his employer’s uniform and a wristwatch. The photograph was, however, admitted because the court ruled that its probative value outweighed its prejudicial effect. Even though it was gruesome, a photograph may be admitted provided it has probative value apart from merely illustrating the atrociousness of the crime. State v. Perea, 142 Ariz. 352, 690 P.2d 71, 76 (1984). This is true notwithstanding the fact that neither the identity of the victim nor the manner of death are disputed. Id. In the instant case, one of the victim’s co-workers used the contested photograph to identify the victim by the type of uniform he was wearing. The medical examiner who performed the autopsies upon the victims testified that the photograph illustrated the difficulty he had in determining a cause of death because of decomposition. Furthermore, the photograph shows the victim with his watch on. Investigators hypothesized the time of death of the victims in reference to the time this watch stopped. We do not believe the gruesomeness of the photograph outweighed its probative value. State v. McCall, 139 Ariz. 147, 157, 677 P.2d 920, 930 (1983); Rule 403, Arizona Rules of Evidence, 17A A.R.S. We find no error. d. Admission of Taser Gun Receipt and Gun Box In Poland I, supra, we held that, a taser gun was improperly admitted into evidence because it was never connected to the crime. We stated, however, that the receipt for that weapon’s purchase was properly seized and admitted at trial. Id. 132 Ariz. at 281, 645 P.2d at 796. We explained the receipt’s relevance as follows: “[t]he taser gun receipt * * * indicated that it [the gun] had been purchased by an alias or accomplice, suggesting that it may have been purchased in contemplation of the crime or by another involved in the crime.” Id. at 280, 645 P.2d at 795. We hold that evidence showing the use of such an alias was relevant and the receipt was properly admitted. As to the empty taser gun box, we are unable to discern its relevance. Neither do we find its admission prejudicial. See State v. Montes, 136 Ariz. 491, 497, 667 P.2d 191, 197 (1983). We find no error. e. Mistrial Defendant contends that the trial court erred in failing to grant his motion for a mistrial after the State adduced a previously undisclosed statement at trial. Testimony was elicited at trial from prosecution witnesses that three men purchased the lightbar alleged to have been used in the commission of the crime. Because the State felt that the description of one of these men matched defendant’s brother, Thad Scott Poland, he was interviewed on the evening prior to his scheduled testimony. Allegedly, he told investigators that defendant Patrick Poland revealed to him that he had purchased the lightbar. Without disclosing to defendant the nature of this witness’s statements, the State presented the evidence at trial. Defendant did not object until after the witness had left the stand. Rule 15.1(a)(1), Arizona Rules of Criminal Procedure, 17 A.R.S., provides that the State must make available to defendants relevant written or recorded statements of witnesses against them if it has such information within its control. Rule 15.6 reads: If at any time after a disclosure has been made any party discovers additional information or material which would be subject to disclosure had it then been known, such party shall promptly notify all other parties of the existence of such additional material, and make an appropriate disclosure. We find no error for two reasons. First, the defendant failed to object until after the witness left the stand. It was not an abuse of discretion to fail to impose sanctions under such circumstances. See State v. Gambrell, 116 Ariz. 188, 190, 568 P.2d 1086, 1088 (App.1977). Second, there was no prejudice to defendant by the alleged failure to disclose. It came as no surprise that defendant’s brother would testify and there was opportunity to interrogate him regarding his proposed testimony. Furthermore, the witness discredited himself on the stand stating, “[w]ell, he [Patrick] never really said he bought the lightbar. That was my making that up basically. * * * Pat never said specifically that he’d ever bought a light-bar. That was me saying that.” Any prejudice resulting from nondisclosure was further rectified during cross-examination. Under these circumstances, the error, if any, was non-prejudicial. See State v. Jessen, 130 Ariz. 1, 4, 633 P.2d 410, 414 (1981) (trial court did not abuse its discretion in failing to impose sanctions where no prejudice resulted from nondisclosure). f. Definition of Intent The court instructed the jury as follows: All persons concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid and abet in its commission are principals in any crime so committed. The defendants have produced evidence that they were not present at the time and place the alleged crime was committed. If you have a reasonable doubt whether the defendants were present at the time and place the alleged crime was committed you must find the defendants not guilty. Defendants cite us to the language of the statute defining aiding and abetting, A.R.S. § 13-301, which provides in pertinent part: “accomplice” means a person, * * *, who with the intent to promote or facilitate the commission of an offense: 2. Aids, counsels, agrees to aid or attempts to aid another person in planning or committing the offense. (Emphasis added). They contend that the omission of the phrase “with the intent to” from the instruction given was error. We do not agree. Lack of a particular instruction is not fatal where the instructions, read as a whole, adequately set forth the law. State v. Villafuerte, infra 142 Ariz. at 329, 690 P.2d at 48; State v. Axley, 132 Ariz. 383, 392, 646 P.2d 268, 277 (1982); State v. Rhymes, 129 Ariz. 56, 59, 628 P.2d 939, 942 (1981). In the instant case, the jury was also instructed: The State must prove that the Defendants have done an act which is forbidden by law and that they intended to do it. You may determine that the Defendants intended to do the act if they did it voluntarily. A murder which is perpetrated by any kind of willful, deliberate and premeditated killing is murder of the first degree. All other kinds of murder are of the second degree. If you have a reasonable doubt about which of the two degrees of murder was committed, you must decide it was second degree murder. Malice aforethought may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears or when the circumstances attending the killing show an abandon or malignant heart. (Emphasis added). The instruction, even though not mentioning the requisite element of intent, was sufficient when read in conjunction with an instruction that the defendant could not be found guilty in the absence of intent. State v. George, 95 Ariz. 366, 371, 390 P.2d 899, 904 (1964) (although element of “intent” omitted from instruction on aiding and abetting, no reversible error found where instructions, read as a whole, indicated that guilt could not be found absent the requisite intent). We believe that George is dispositive. We find no error. DEATH PENALTY ISSUES a. The Death Penalty Statute Defendant contends that our death penalty statute, A.R.S. § 13-703, is unconstitutional. We have previously disposed of this question. State v. Zaragoza, 135 Ariz. 63, 68, 659 P.2d 22, 27, cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1356 (1983); State v. Clark, 126 Ariz. 428, 435, 616 P.2d 888, 895, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). Furthermore, our sentencing scheme for capital cases is neither rendered unconstitutional because of its lack of jury participation, State v. Roscoe, 145 Ariz. 212, 226, 700 P.2d 1312, 1326 (1984), nor because of its failure to require beyond a reasonable doubt that aggravating circumstances outweigh mitigating circumstances. State v. Carriger, 143 Ariz. 142, 159, 692 P.2d 991, 1008 (1984). Additionally, we believe the death penalty was properly applied to the facts of this case. The record provides substantial support for the conclusion that defendant killed, attempted to kill, or intended to kill. See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); State v. Vickers, 138 Ariz. 450, 452, 675 P.2d 710, 712 (1983). We find no error. b. Double Jeopardy Defendant contends that the double jeopardy provisions of the United States and Arizona Constitutions barred reimposition of the death penalty in this case. We do not agree. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides in pertinent part, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * Our state constitution contains a similar provision. Ariz. Const. Art. II, § 10. The United States Supreme Court has held that double jeopardy consequences attach to a sentencing proceeding whenever it resembles a trial. Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1980). The Court later stated, “respondent’s initial sentence of life imprisonment was undoubtedly an acquittal on the merits of the central issue in the proceeding — whether death was the appropriate punishment for respondent’s offense.” Arizona v. Rumsey, — U.S. -, -, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164, 171 (1984). Defendant contends that Bulling-ton and Rumsey bar reimposition of the death penalty in the instant case. We do not agree. In those cases, the respective defendants were sentenced to terms of imprisonment. Upon remand, each was sentenced to death. The United States Supreme Court held that the Double Jeopardy Clause barred imposition of the death penalty in those cases. These holdings were based upon the fact that the respective state sentencing procedures resembled trials. Accordingly, because each defendant was initially sentenced to a term of imprisonment, he was impliedly “acquitted” of the death penalty. In the instant case, defendant was sentenced to death at the end of his first trial. There was no implied “acquittal” of the death penalty. Bullington and Rumsey do not, therefore, apply. See Knapp v. Cardwell, 667 F.2d 1253, 1264-65 (9th Cir.), cert. denied, 459 U.S. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982). Defendant argues, however, that he was impliedly “acquitted” of the death penalty at the appellate level because Poland I, supra, overturned the single aggravating circumstance upon which his previous death sentence was based, that is that the murders were committed in an especially heinous, cruel or depraved manner, A.R.S. § 13-703(F)(6). Our holding in Poland I, however, was simply that the death penalty could not be based solely upon this aggravating circumstance because there was insufficient evidence to support it. This holding was not tantamount to a death penalty “acquittal.” Because we find below that the “heinous, cruel or depraved” aggravating circumstance was again not adequately proven, we need not reach the question of whether double jeopardy precluded the sentencing court from refinding this aggravating circumstance. c. Proof of Aggravating Circumstances The trial court found as aggravating circumstances: 1. That defendant committed the crime in an “especially heinous, cruel or depraved manner.” A.R.S. § 13-703(F)(6). 2. That the crime was committed “as consideration for the receipt, or in expectation of the receipt, or anything of pecuniary value.” A.R.S. § 13-703(F)(5). 3. That defendant had been “previously convicted of a felony in the United States involving the use or threat of violence on another person.” A.R.S. § 13-703(F)(2). • This court will, in all death cases, make an independent review of the facts to determine for itself the aggravating and mitigating factors. State v. Smith, 138 Ariz. 79, 85, 673 P.2d 17, 23 (1983), cert. denied, — U.S. -, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984); State v. Richmond, 136 Ariz. 312, 317, 666 P.2d 57, 62, cert. denied, — U.S. -, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983). Defendant contends that the sentencing court erred in its findings that the murders in this case were “especially heinous, cruel or depraved.” A.R.S. § 13-703(F)(6). We agree. In Poland I, supra 132 Ariz. at 285, 645 P.2d at 800, we set aside the finding of this aggravating circumstance (then contained in former A.R.S. § 13-454(E)(6), for the following reasons: In interpreting the aggravating circumstance that the offense was committed in an especially heinous, cruel, or depraved manner, we have stated: “ * * * the cruelty referred to in the statute involved the pain and the mental and physical distress visited upon the victims. Heinous and depraved as used in the same statute meant the mental state and attitude of the perpetrator as reflected in his words and actions.” State v. Clark, 126 Ariz. 428, 436, 616 P.2d 888, 896 (1980), cert. denied 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612. We do not believe that the evidence so far produced in this case shows that the murders were cruel. We have interpreted “cruel” as “disposed to inflict pain esp. in a wanton, insensate or vindicative manner: sadistic.” State v. Lujan, 124 Ariz. 365, 372, 604 P.2d 629, 636 (1979), quoting Webster’s Third New International Dictionary. There was no evidence of suffering by the guards. The autopsy revealed no evidence that they had been bound or injured prior to being placed in the water, and there was no sign of a struggle. Cruelty has not been shown beyond a reasonable doubt. State v. Lujan, supra; State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1981); State v. Bishop, 127 Ariz. 531, 622 P.2d 478 (1980); State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978). Neither does the evidence support a finding that the murders were heinous or depraved. These terms were defined in State v. Lujan, supra: “heinous: hatefully or shockingly evil: grossly bad “depraved: marked by debasement, corruption, perversion or deterioration.” 124 Ariz. at 372, 604 P.2d at 636. The issue focuses on the state of mind of the killer. State v. Lujan, supra. The difficulty in making this determination in the case at bar is that there is very little evidence in the record of the exact circumstances of the guards’ deaths. Although defendants’ state of mind may be inferred from their behavior at or near the time of the offense, State v. Lujan, supra, we know nothing of the circumstances under which the guards were held hostage. The State must prove the existence of aggravating circumstances beyond a reasonable doubt. State v. Jordan, 126 Ariz. 283, 614 P.2d 825, cert, denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). We do not believe it has been shown beyond a reasonable doubt that the murders were committed in an “especially heinous, cruel or depraved manner.” At retrial, the State again failed to show what we found lacking in Poland I: suffering by the victims and the circumstances surrounding their deaths. The State did not show the victims were conscious at the time of death. A finding of cruelty cannot stand where the State has failed to prove beyond a reasonable doubt that the victims were conscious at the time of death. State v. Villafuerte, 142 Ariz. 323, 690 P.2d 42, 50 (1984). We are, therefore, compelled to again set aside the finding that the murders were committed in an “especially heinous, cruel or depraved manner.” The State has, however, proven beyond a reasonable doubt that defendant “committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value.” A.R.S. § 13-703(F)(5). This circumstance is applied to murders having a “financial motivation.” State v. Villafuerte, supra at 328, 690 P.2d at 47; State v. Graham, 135 Ariz. 209, 212, 660 P.2d 460, 463 (1983); State v. Clark, 126 Ariz. 428, 436, 616 P.2d 888, 896, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). In the instant case, the murders were part of an overall scheme to obtain items of pecuniary value. State v. Nash, 143 Ariz. 392, 405, 694 P.2d 222, 235 (1985). Under the facts of this case, the “pecuniary gain” finding was clearly warranted. Defendant maintains, however, that the sentencing court incorrectly found the aggravating circumstance contained in A.R.S. § 13-703(F)(2): that he “was previously convicted of a felony in the United States involving the use or threat of violence on another person.” He argues that this factor should not have been found absent an examination of whether violence played a role in his prior conviction for bank robbery. This argument was most recently raised and rejected in State v. Nash, at 404, 694 P.2d at 234, where we held that judicial notice may be taken that certain felonies, by definition, involve violence against others. See also State v. Watson, 120 Ariz. 441, 448, 586 P.2d 1253, 1260 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979) (“Fear of force is an element of robbery and the conviction of robbery presumes that such fear was present.”) Furthermore, defendant’s claim that Double Jeopardy principles bar the use of his prior conviction to enhance sentencing is without merit. State v. LeMaster, 137 Ariz. 159, 166, 669 P.2d 592, 599 (App.1983). d: Mitigating Circumstances The trial court found as mitigating cir-. cumstances the defendant’s close family ties, and that he was a model prisoner. The trial court found that these mitigating circumstances were not “sufficiently substantial to call for leniency.” A.R.S. § 13-703(E). Defendant raises two arguments relating to mitigating circumstances. First, he argues that the sentencing court’s failure to find good reputation as a mitigating circumstance was error. We do not agree. Defendant points to numerous letters written by family members and acquaintances attesting to his good reputation. The sentencing court, however, found this evidence was contradicted by defendant’s prior conviction. The court reasoned that defendant’s reputation was not a mitigating factor because it was falsely built. Defendants have the burden of proving mitigating factors by a preponderance of the evidence. State v. McMurtrey, 143 Ariz. 71, 72-73, 691 P.2d 1099, 1100-1101 (1984). The sentencing court and this Court on appeal may take cognizance of evidence tending to refute a mitigating circumstance. State v. Smith, 131 Ariz. 29, 638 P.2d 696 (1981). In light of conflicting evidence as to defendant’s reputation, we do not believe that the defendant has shown by a preponderance of the evidence defendant’s good reputation as a mitigating circumstance. Second, defendant also claims error to the sentencing court’s discussion of close family ties as a mitigating circumstance: The Court does find the close family ties of the — that exist between the Defendants’ families and their children as a mitigating circumstance. I don’t want this to be misconstrued as an opinion of this Court that this in fact made them good husbands and fathers. On the contrary, the exact opposite would be true. It would be impossible to conceive of good husbands and fathers committing crimes of this nature, and thereby bearing the aura of being a good family man. I suspect the only possible self-justification that may be available to you both is that you somehow did this for your children and families, but of course quite the opposite is the result, and you have in fact destroyed your families, and I suspect that the best thing that you could do at this point would be to admit to them that you have committed these offenses, let them face up to it, let them try to prepare their lives in a manner that will permit them to exist in the future, otherwise you have destroyed them forever. Defendant contends that the court was using a mitigating factor as an aggravat ing factor contrary to State v. Just, 138 Ariz. 534, 675 P.2d 1353 (App.1983) (where the sentencing court incorrectly used the defendant’s prior exemplary life as an aggravating factor). We do not believe, however, that the court used defendant’s close family ties in this manner. Rather, it appears that the court found this to be a mitigating factor but not “sufficiently substantial to call for leniency.” State v. Gretzler, 135 Ariz. 42, 54, 659 P.2d 1, 13, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). We find no error. We further find that neither defendant’s age, twenty-seven at the time of the offenses, State v. Clark, supra; nor the fact that he was a model prisoner, State v. Carriger, 143 Ariz. 142, 161-162, 692 P.2d 991, 1010-1011 (1984), are mitigating factors sufficiently substantial to call for leniency. We believe the death penalty should be imposed in this case. e. Proportionality We conduct a proportionality review as part of our independent review to determine “whether the sentences of death are excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” State v. Villafuerte, supra 142 Ariz. at 332, 690 P.2d at 51, State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 41, 51 (1976). Our review indicates that defendant’s sentence is proportionate to sentences imposed by this state upon other defendants who have committed murders having a similar degree of aggravation. We have upheld the imposition of the death sentence in numerous cases involving two or more aggravating factors and no mitigating factors sufficiently substantial to call for leniency. E.g., State v. Carriger, supra; State v. Fisher, 141 Ariz. 227, 686 P.2d 750 (1984); State v. Blazak, 131 Ariz. 598, 643 P.2d 694 (1982). We have also upheld the death penalty where as here the crime is for the sole purpose of economic gain, State v. Hensley, 142 Ariz. 598, 691 P.2d 689 (1984). The fact that defendant had a prior conviction involving the use or threat of violence and that the offense was for pecuniary gain together with insufficient mitigating circumstances brings this court to the conclusion that the crime is above the norm of first degree murders and that the defendant is above the norm of first degree murderers. We have reviewed the entire record pursuant to A.R.S. § 13-4035 and have found no reversible error. The finding that the murders were committed in an “especially heinous, cruel or depraved manner” is set aside, but the findings as to the other aggravating circumstances are affirmed. No mitigating circumstances sufficiently substantial to call for leniency have been shown. The judgments and sentences are affirmed. HOLOHAN, C.J., and HAYS, J., concur. . These facts are identical to the statement of facts in Poland I, supra.

HOLOHAN, Chief Justice. G.R.L. Construction Co. (GRL) sought review of the decision of Division Two of the Court of Appeals, Gila Valley Irrigation District v. Superior Court in and for the County of Graham, 144 Ariz. 302, 697 P.2d 695 (1983). We granted review and vacate the decision of the Court of Appeals. This action entered the appellate courts when the defendants Gila Valley Irrigation District (Gila Valley) and three members of its Board of Directors sought special action relief in Division Two of the Court of Appeals from an order of the Superior Court of Graham County which set aside an order of dismissal of plaintiff’s (GRL) action. The superior court order had been entered relieving the plaintiff of a dismissal of its action for failure to pay the filing fee required by A.R.S. § 12-407(E) for actions transferred to another county pursuant to a change of venue order. The Court of Appeals granted relief, ruling that the superior court had no jurisdiction to set aside a dismissal entered pursuant to A.R.S. § 12-407(E). The appellate court’s ruling was made prior to our decision in Lemons v. Superior Court of Gila County, 141 Ariz. 502, 687 P.2d 1257 (1984), in which we held that the superior court, pursuant to A.R.S. § 12-302, could for good cause shown set aside a dismissal entered under A.R.S. § 12-407(E) and allow the plaintiff additional time to pay the required court fees. Our decision in Lemons does not end the matter in this case, however, because Gila Valley and the other petitioners in the Court of Appeals contend that the superior court acted without a showing of good cause in setting aside the dismissal. Under Lemons the superior court has jurisdiction to relieve a plaintiff of a dismissal under A.R.S. § 12-407(E), but such relief must be based upon a showing of good cause. Was there a sufficient showing of good cause made by the plaintiff GRL? The facts necessary for our determination are that in 1982 GRL filed a multiple count complaint in the Maricopa County Superior Court against the State of Arizona, Gila Valley and members of its Board of Directors, and numerous other defendants. The complaint alleged that Gila Valley and others had breached contracts with GRL by failing to pay for emergency flood control services performed by GRL for the benefit of the defendants at Gila Valley’s request, that the defendants were negligent and wanton in their conduct, and that plaintiff was entitled to compensatory and punitive damages. The State of Arizona moved to dismiss the complaint for failure to state a claim, upon which relief could be granted. The other defendants moved for a change of venue to Graham County pursuant to A.R.S. § 12-404 “for the reason that Maricopa County in which the action was brought is not the proper venue and ... Graham County is the place of residence of the Defendants.” A.R.S. § 12-404 provides that if an action is not brought in the proper county, the court nevertheless has jurisdiction to determine the action unless the defendant timely files an affidavit stating that the action is not in the proper county, stating the defendant’s residence, and praying for transfer to the proper county. Defendants’ attorney’s affidavit attached to the motion stated that all the parties were Graham County residents and that all acts upon which the suit was brought occurred in Graham County. GRL opposed both motions, arguing that the State of Arizona was an appropriate party defendant and that the State “resides” in Maricopa County where Phoenix, the state capital and seat of government, is located. Under A.R.S. § 12-401, paragraph 7, “[w]hen there are several defendants residing in different counties, action may be brought in the county in which any of the defendants reside.” GRL urged that although the other defendants were not from Maricopa County, venue was appropriate in that county under A.R.S. § 12-401, paragraph 7. The Maricopa County Superior Court judge assigned to the case first granted the motion to dismiss the State as a party, then granted the motion for change of venue, ordering the action transferred to Graham County for all other proceedings. The trial judge in his order suggested that counsel “pay special attention to A.R.S. § 12-407 as amended in 1982.” A signed written judgment dismissing the State was filed pursuant to Rule 54(b), Arizona Rules of Civil Procedure, 16 A.R.S. Sometime later GRL filed a notice of appeal from this judgment which was dismissed by the Court of Appeals as untimely under Rule 9(a), Arizona Rules of Civil Appellate Procedure, 17A A.R.S. The case file involving the other defendants was forwarded to Graham County pursuant to the trial judge’s order. On December 7, 1982 the clerk of the Graham County Superior Court sent a letter to GRL’s attorney stating that they had received the file and continuing: It is our understanding that you filed this case in the wrong county, and therefore under the provisions of A.R.S. § 12-407 as amended in 1982, the plaintiff shall pay, within 30 days from the date of the order for change of venue, the $20.00 filing fee. Upon receipt of the filing fee we will file this case with our Court. GRL did not pay the fee. On February 9, 1983, the Graham County clerk sent another letter to GRL’s attorney containing the same information. GRL never paid the fee, and it is undisputed that GRL never made any attempt to pay the fee. On March 4, 1983, the Superior Court of Graham County issued an order dismissing the case with prejudice pursuant to A.R.S. § 12-407, subsection E, for failure to pay the fee. GRL sought relief in the Graham County Superior Court from the order of dismissal, moving for reconsideration under Rules 55, 59, and 60, Arizona Rules of Civil Procedure, 16 A.R.S. The trial judge found that GRL was not entitled to relief under any of those rules. He nevertheless set aside the order of dismissal, finding that venue in Maricopa County had been proper initially when the State of Arizona was a party and that the Legislature intended the harsh provisions of A.R.S. § 12-407(E) to apply only to cases initially brought in the wrong county. GRL’s counsel was ordered to pay the fee and on payment of the fee the action was ordered to be reinstated. The defendants Gila Valley and three members of its Board of Directors challenged that action of the trial judge by filing the present special action. The argument has centered on whether the action by GRL was originally brought in the proper county. GRL has maintained that the joinder of the state as a party allowed the action to be maintained in Maricopa County because Maricopa County is the proper county for any action against the state unless otherwise provided by law. It must be noted that in a contract or negligence action against the state the Attorney General may demand that the action be transferred from the county where filed to Maricopa County. A.R.S. § 12-824 (renumbered as A.R.S. § 12-822 by Laws 1984, Ch. 285, § 7); State v. Superior Court in and for the County of Pima, 120 Ariz. 273, 585 P.2d 882 (1978). The argument is advanced that a plaintiff need not wait for a demand by the Attorney General but should be able, in the first instance, to file the action against the state in Maricopa County. If the action against the state was properly brought in Maricopa County, pursuant to A.R.S. § 12-401(7) it was proper for the action to be maintained against the other defendants in Maricopa County. The defendants contend that the state was never a proper party to this action because the state was immune from liability pursuant to A.R.S. § 26-314. Since the state was never a proper party the residence of the other defendants was the only proper consideration. See Turner v. Superior Court, 3 Ariz.App. 414, 415 P.2d 129 (1966). The arguments raised by the parties need not be resolved in this action. The relevant consideration for the trial judge was whether there was good cause to set aside the dismissal and allow the plaintiff GRL additional time to pay the required fee. See Lemons, 141 Ariz. at 505-06, 687 P.2d at 1260-61. The record shows that there was not a specific finding that the action was filed in the wrong county. The Maricopa County trial judge referred to A.R.S. § 12-407 in his order granting a change of venue, but that section is not limited to changes of venue for filing in the wrong county. We are not certain what the trial judge had in mind in granting the change of venue. Under the state of the record we believe that there was sufficient confusion to justify the superior court judge’s decision to allow the plaintiff additional time to file the required fee. While we may question the judgment of counsel in allowing this case to be placed in jeopardy over the payment of a twenty dollar fee, we find no abuse of discretion in the actions of the trial judge. The opinion of the Court of Appeals is vacated, and the relief sought by petitioners in their special action is denied. GORDON, V.C.J., and HAYS, JAMES DUKE CAMERON and FELDMAN, JJ., concur.

OPINION EUBANK, Judge. This is a special action review of an Industrial Commission award for temporary total disability. The dispositive issue is whether a prior final award extending temporary disability status from January 26 to December 2, 1983 precludes a denial of temporary disability compensation during this period. Because preclusion is inapplicable, we set aside the award. The respondent employee (claimant) first injured his right knee in a 1979 out-of-state industrial injury. This required surgery to remove a torn lateral meniscus and to repair ligaments. He was discharged in 1981 with a 30 percent permanent impairment. The claimant remained unemployed for approximately a year until he went to work laying cable for the petitioner employer. On June 15, 1982, he fell into a trench and twisted his right knee. The initial diagnosis was a right knee sprain with mild effusion (swelling). The claim for benefits was accepted. Despite conservative treatment, the claimant’s symptoms of lateral knee pain, swelling, and instability persisted. In October, 1982, treating physician William L. Smith, D.O., arthroscopically examined the knee. He found chronic synovitis (inflammatory changes to knee joint lining) and chondromalacia (roughening) of the patella but no additional meniscus tear. These chronic conditions were related to the 1979 industrial injury. On December 16, 1982, Dr. Smith released the claimant to return to regular work. The petitioner carrier (Travelers) issued a December 22, 1982 notice of claim status changing the disability status from temporary total to temporary partial. According to the claimant, he attempted work after his release, but this aggravated his symptoms. Despite these continuing complaints, Dr. Smith discharged the claimant without permanent impairment on January 26, 1983. On February 2, 1983, Travelers issued a notice of claim status terminating all compensation effective January 26, 1983. The claimant timely protested, asserting that his injury permanently disabled him from working. On April 11, 1983, the claimant saw orthopedic surgeon Dan Heller, M.D., who noted moderate lateral ligament instability. After this examination, the claimant again attempted to work but had the same aggravation of symptoms. On May 18, 1983, Dr. Heller observed a large effusion above the right knee. He recommended a second diagnostic arthroscopic examination, but left the claimant on regular work status: “If internal derangement symptoms were substantiated at time of arthroscopy, some correction might be made in the work status. From the information I have, I am afraid he would have to be left on work status.” At the first scheduled hearing in July, 1983, the claimant and Dr. Smith appeared. The claimant testified that he was able to work before the June 15, 1982 industrial injury but has been unable to work since the injury. He admitted that after the first injury he had some knee pain and wore a brace. He also testified that he had unsuccessfully applied for work as a truck driver. Dr. Smith reiterated his opinion that the June 14, 1982 industrial injury had not caused permanent impairment. He attributed the claimant’s ongoing complaints to the prior industrial injury. Pending a scheduled continued hearing, Alfred F. Miller, M.D., who had previously examined the claimant at Travelers’ request, reexamined him. On August 29, 1983, Dr. Miller performed a diagnostic arthroscopic examination, but he found no damage related to the June 15, 1982 industrial injury. Because of the surgery, however, the claimant was off work status until September 12, 1983. After this recovery period, Dr. Miller again released him to regular work. On December 2, 1983, Dr. Miller discharged the claimant without permanent impairment. At a continued hearing, Dr. Miller confirmed that the claimant was stationary without permanent impairment from the June 15,1982 industrial injury. In his opinion, the claimant was capable of regular work except while recovering from surgery. He admitted, however, that until December 2, 1983, the claimant had effusion and some loss of knee range of motion. At another continued hearing, Dr. Heller also confirmed that he had observed effusion and instability, but he expressed no opinion about causation. On December 30, 1983, the presiding administrative law judge issued an award for continuing temporary disability. The dis-positive findings state: 8. Essentially the issue before the undersigned is a medical issue and it is well established in Arizona that, except where apparent to a layman, the existence of a disability and its relation to an industrial episode is solely within the realm of knowledge of medical experts. ****** 12. All of the physicians agreed that the applicant’s knee was stationary but there is a conflict as to when the applicant’s knee became stationary. 14. The undersigned resolves the conflict by accepting the testimony of Dr. Miller as being the more reasonable based upon the fact that Dr. Miller observed swelling and loss of range of motion in the applicant’s knee up to his examination of December 2, 1983. 15. The evidence establishes that the applicant’s physical condition did not become stationary until December 2, 1983 and that as of that date the applicant had no permanent physical or mental impairment causally related to the June 15, 1982 injury. (Citations omitted. Emphasis added.) Based on these findings, the award provided medical benefits and “[tjemporary total and/or temporary partial disability benefits as provided by law and consistent with the findings of this Award from and after June 15, 1982 up to and including December 2, 1983. ” Neither party requested administrative review and this award became final. See A.R.S. § 23-942(D). In January, 1984, Travelers tendered temporary total compensation for the period of time when the claimant was recovering from Dr. Miller’s arthroscopic surgery, but it denied any additional temporary compensation. The claimant asserted the right to full temporary total compensation and requested a hearing pursuant to A.R.S. § 23-1061(J), (1061(J) hearing). The matter was scheduled for hearing before another administrative law judge, but the parties agreed to a disposition of the matter upon the existing record. On April 20, 1984, the second administrative law judge issued the award for full temporary total compensation. The dispositive findings state: 9. Whatever issues were determined or could have been determined in the original findings and award of the Commission are res judicata the same as if they had been expressly determined by the original judgment of the Commission. 10. Even assuming arguendo that the defendant insurance carrier is correct in its argument that the evidence does not establish applicant’s entitlement to temporary compensation, the defendant insurance carrier allowed the award of Judge Nicholls to become final without protest; the issue of applicant’s entitlement to compensation was an issue at the hearings conducted by Judge Nicholls and the decision of December 30, 1983 found that applicant was entitled to temporary compensation until December 2, 1983; said award is final and res judicata as to the issue of applicant’s entitlement to temporary compensation; the language of the award granting temporary compensation benefits “as provided by law” does not grant the right to the insurance carrier to relitigate the issue, but simply leaves the arithmetical computation of the amount of benefits to the parties; this has been the custom and practice in industrial cases for years since in many cases the evidence may show the claimant’s right to compensation benefits without showing the necessary figures upon which to make a computation of the exact dollars and cents amount and so it is left to the parties to make such a computation; to hold otherwise would allow an insurance carrier two opportunities to litigate the same issue. 11. The record shows that the applicant has not worked and earned any wages between January 26, 1983 and December 2, 1983, and accordingly applicant is entitled to temporary compensation benefits from January 26, 1983 to December 2, 1983 based upon 66%% of applicant’s average monthly wage of $977.97 which computes to the total sum of $6,667.84. (Citations omitted). The award was affirmed on administrative review, and this special action of Travelers followed. On review, Travelers denies that preclusion applies because the December 30, 1983 award for continuing temporary disability made no findings that the claimant was actually disabled. The claimant answers that preclusion applies because actual disability was an issue that could have been determined in this initial award. Resolution of this dispute turns on the distinction between claim preclusion and issue preclusion. See Red Bluff Mines, Inc. v. Industrial Commission, 144 Ariz. 199, 696 P.2d 1348 (App.1984) (citing Restatement (Second) of Judgments § 27 (1982)). Claim preclusion prohibits relitigation of the same claim. Id., at 203, 696 P.2d at 1352. If the same claim is involved relitigation of matters that were actually decided or that could have been decided is precluded. Id. In contrast issue preclusion only precludes relitigation of the same issue. Id., at 205, 696 P.2d at 1354. It applies only to matters that were actually litigated and determined and only if that determination was essential. Restatement (Second) of Judgments § 27 (1982). In the present case, issue preclusion does not apply. The December 30, 1983 award made no determination about the claimant’s actual disability. Nor would this determination have been essential to the award. The only essential finding was that the claimant required continuing active medical treatment from January 26, 1983 to December 2, 1983. See, e.g., Home Insurance Co. v. Industrial Commission, 23 Ariz.App. 90, 530 P.2d 1123 (1975). The decisive question, therefore, is whether claim preclusion applies to this case. We conclude that it does not, since the claim asserted by claimant was one for an award based on disability. A determination that an industrial injury is not yet stationary is a prerequisite for temporary disability. See Home Insurance Co. v. Industrial Commission, 23 Ariz.App. at 93, 530 P.2d at 1126; cf. Hunter v. Industrial Commission, 130 Ariz. 59, 633 P.2d 1052 (App.1981) (permanent impairment, a medical question of fact, is prerequisite to assessment of permanent disability). But satisfaction of this prerequisite alone does not guarantee an award for temporary disability. This depends on the industrial injury’s actual effect on the claimant’s earning capacity. See Felker v. Industrial Commission, 134 Ariz. 19, 653 P.2d 369 (App. 1982); Payton v. Industrial Commission, 27 Ariz.App. 92, 551 P.2d 82 (1976); Hardware Mutual Casualty Co. v. Industrial Commission, 17 Ariz.App. 7, 494 P.2d 1353 (1972); State Compensation Fund v. Cramer, 13 Ariz.App. 103, 474 P.2d 462 (1970). Accordingly, a determination, such as the one made by the Administrative Law Judge in his December 30, 1983 award, that an industrial injury is not stationary does not imply that the condition was disabling during the period of medical instability. Establishing disability through proof of an impairment of earning power is necessary to support an award of disability benefits. Edwards v. Industrial Commission, 3 Ariz.App. 290, 413 P.2d 800 (1966). See also Continental Casualty Co. v. Industrial Commission, 21 Ariz.App. 561, 521 P.2d 1019 (1974). Therefore, in view of the limited scope of the December 30, 1983 award, Travelers was not precluded from denying temporary disability benefits. The claimant’s right to such benefits had never been litigated. The claimant asserts that we may nevertheless affirm the award because sufficient evidence of actual disability supports it. We disagree. Although we may affirm an award that is right for the wrong reason, this requires findings of the critical facts. See State Compensation Fund v. Industrial Commission, 136 Ariz. 442, 666 P.2d 542 (App.1983). Here, the award lacks any finding about the claimant's actual earning capacity. Even if the claimant was unable to return to heavy physical work, his interim earning capacity must still be assessed. Respondent argues that a 1061(J) hearing may not be used as a forum to collaterally attack a prior award. We agree. The Supreme Court in Massie v. Industrial Commission, 113 Ariz. 101, 546 P.2d 1132 (1976), noted that “the purpose of A.R.S. § 23-1061(J) is not to permit collateral attacks on the findings, orders, or awards of the Industrial Commission.” However, that statement is inapposite here because, as discussed supra, the carrier was not, in the 1061(J) proceedings, attacking the determination of the claimant’s stationary date. The carrier was contending that no disability was proven. This is a separate and different issue. Since the parties stipulated to use of the record of the initial hearing in the 1061(J) hearing and since there was no additional evidence introduced regarding claimant’s disability, the Administrative Law Judge was free to make a determination, based on the stipulated record, that there was no showing of disability. Therefore his determination that “the issue of applicant’s entitlement to compensation was an issue at the hearings conducted by Judge Nicholls and the decision of December 30, 1983 found that applicant was entitled to temporary compensation until December 2, 1983; said award is final and res judicata as to the issue of applicant’s entitlement to temporary compensation ...” was erroneous. As noted above, no such finding of entitlement was made in the initial hearing. Only a determination of a medical issue, i.e. whether claimant was stationary, was made. The Commission's grant of a 1061(J) hearing is in no way a determination of the merits of a claimant’s claim to compensation. The 1061(J) hearing only indicates the Commission’s initial determination that the claimant has a colorable claim to compensation, that is that the claimant has “any claim in which it appears to the commission that the claimant has not been granted the benefits to which such claimant is entitled.” A.R.S. § 23-1061(J). The appearance of entitlement is certainly not the same thing as the fact of entitlement. It may appear that one is entitled to compensation when in fact he or she is not. It is the purpose of the 1061(J) hearing to determine the fact of entitlement to compensation as well as whether the “payment or denial of compensation is improper,” where no such finding had been made previously. A 1061(J) hearing is not merely a means to enforce the payment of compensation which is due but it is also a means by which the fact of entitlement, and its exact measure, may be litigated. Once the 1061(J) hearing was set, the question of temporary disability benefits was at issue, and it was therefore error for the Administrative Law Judge to rule that that question was precluded by the findings made in the initial hearing. Respondent also contends that petitioner’s special action was frivolous and filed solely for purpose of delay and, therefore, requests that we award him attorney’s fees incurred here pursuant to Rule 25, Arizona Rules of Civil Appellate Procedure. Since we have set the award aside, we decline to award attorney’s fees to respondent. For the foregoing reason, the award is set aside. CONTRERAS, P.J., and BROOKS, J., concur. . Felker is directly on point. Although it involves penalty benefits, the point of the case is that the measure of the penalty under A.R.S. § 23-1061(M) is the compensation payable as if the claim had been accepted. Felker v. Industrial Commission, 134 Ariz. at 20, 653 P.2d at 370; accord Kentucky Fried Chicken v. Industrial Commission, 141 Ariz. 561, 688 P.2d 187 (App. 1984). . The current administrative law judge apparently concluded that A.R.S. § 23-1044(A) does not require a showing of actual lost earning capacity during temporary disability. This is error. See 2 Larson, Workmen’s Compensation Law § 57.21 at 10-72 to -75 (1983).

OPINION FROEB, Judge. Appellant Marvin C. Rypkema and his wife, Gwenn M. Rypkema, were charged with the crime of possession of marijuana, a class six felony, in violation of A.R.S. § 13-3405. Before trial, they moved to suppress as evidence all items seized from their home pursuant to a search warrant executed on June 11, 1983. A suppression hearing was held before the judge who had issued the warrant, at which time testimony was given by appellant’s wife, Gwenn, and Sergeant Jack Judd, who had prepared the affidavits accompanying the requested search warrant. The trial court denied the motion. At the time set for trial, the case against appellant’s wife was dismissed with prejudice. Appellant waived his right to jury trial and the case was submitted to the court based on the grand jury transcript and the transcript from the suppression hearing. The court found appellant guilty as charged and sentenced him to a fine of $500.00, plus a surcharge, for a total of $685.00. Appellant raises three issues on appeal: (1) Whether there was sufficient probable cause to justify the issuance of the search warrant for appellant’s home; (2) Whether the officers serving the warrant failed to comply with A.R.S. § 13-3916 (the so-called “knock and announce” statute); and (3) Whether the magistrate was shown good cause sufficient to justify a nighttime search, as required by A.R.S. § 13-3917. Because we have found reversible error as to the third issue, we need not address the first two issues raised. A brief statement of the facts will suffice to present the factual backdrop of this case. The warrant for the search of appellant’s residence near Flagstaff, Arizona, was issued on June 10, 1983. The warrant authorized a search of the premises during the night. The warrant was issued upon the affidavit of Sergeant Jack Judd of the Coconino County Sheriff’s Department. The affidavit stated: That the following facts establish probable cause for believing that grounds for the issuance of a search warrant for the aforementioned items exist: On 6 May, 1983 your Affiant was contacted telephonically by his fellow officer, Detective Martin T. SMITH, Badge Number 1181, Phoenix Police Department. Detective SMITH advised your Affiant that he had received information from a confidential and reliable informant as follows. That within the previous several weeks Detective SMITH’S informant had been to a residence located at 142 Nakai Trail, in Kachina Village Estates, near Flagstaff, Arizona. Further, that the above described residence was occupied by Marvin Charles RYPKEMA and Gwenn Marquerita JUR-CIN [RYPKEMA], The informant further advised that RYPKEMA and JUR-CIN are actively involved in the transportation and distribution of narcotic drugs, namely cocaine. The informant further advised that during the above described visit, the informant personally observed a large quantity of cocaine, approximately several pounds, in the possession of Marvin RYPKEMA and Gwenn JURCIN at the residence. On approximately 23 May, 1983 Detective SMITH telephoned your Affiant and advised that he had been contacted again by the same informant with information as follows; that Marvin RYPKEMA and Gwenn JURCIN had left Flagstaff, and were vacationing in Hawaii and South Dakota for several weeks and would return to Flagstaff at the end of their vacation. Your Affiant and his fellow officers, Sergeant Tom HAMMARSTROM and Agent Robert PRIDA maintained a daily periodic surveillance at 142 Nakai Trial during the period between 23 May, 1983 and the present. Your Affiant and his fellow officers observed that the above residence was unoccupied during all that time and that the vehicle used by Marvin RYPKEMA and Gwenn JURCIN, a 1973 Saab, yellow in color, South Dakota plate number CAF-979 was not at the residence. On 9 May, 1983 investigation by your Affiant’s fellow officer, Robert PRIDA revealed that the electric service at 142 Nakai Trial is listed in the name of Gwenn JURCIN. Affiant believes that the following information demonstrates good cause, pursuant to A.R.S. § 13-3917 for permitting his warrant to be served at any time of the day or night: On 10 June, 1983 your Affiant was again contacted telephonically by Detective SMITH with the following information. That the above described informant had contacted Detective SMITH and stated that the informant had spoken with an individual within the past several hours. This individual is a distributor of cocaine who obtains cocaine on a regular basis from Marvin RYPKEMA. The individual told Detective SMITH’S informant that Marvin RYPKEMA and Gwenn JURCIN had returned to Phoenix, Arizona on or about 10 June, 1983 and that they are in possession of a large quantity of cocaine, and that they were planning to travel to Flagstaff with the cocaine and distribute a portion of the cocaine in Flagstaff. At approximately 8:15 P.M. on 10 June, 1983 your Affiant’s fellow officer, Robert PRIDA, went to the residence at 142 Nakai Trail and observed that the lights were on, and a vehicle which had been previously parked in the same location at the residence for two weeks without having been moved, had been moved to a different location at the residence, this vehicle is described as a 1967 Chevrolet Station Wagon, Arizona license plate AZE-622. Your Affiant has also learned from Detective SMITH that Marvin Charles RYPKEMA has previously been arrested in South Dakota on charges of Narcotics Possession and Sale. Detective SMITH received this information from officers of the Arizona Criminal Intelligence Agency- Your Affiant believes that Detective SMITH’S informant is reliable due to facts which are set forth in another portion of this Affidavit. Further, your Affiant’s fellow officer, Raoul OSEGUEDA, has conducted a surveillance, at 142 Nakai Trail beginning at approximately 8:30 P.M. At approximately 9:50 hours Detective OSEGUEDA observed the yellow Saab, South Dakota license number CAF-979 registered to Gwenn JURCIN, arrive at 142 Nakai Trail, and the occupants of the vehicle enter the residence. The warrant was executed about midnight on June 11, 1983. Approximately thirteen officers participated in the execution. The officers knew that the Rypkemas were in the house, although the lights were out and there was no noise. After knocking and waiting approximately 25 seconds, the police broke through the front and back doors. The Rypkemas were undressed, sleeping in bed, at the time. They then sat undressed on their bed for 15-30 minutes, after which they were moved to the living room. The house was extremely cold because the doors were open. After another 15-20 minutes, they were finally allowed to put something over themselves. Appellant’s wife was pregnant and her pregnancy was “quite pronounced.” Appellant’s two sons by a previous marriage had been sleeping in the loft, from which they were able to view the proceedings. The officers then approached the Rypkemas and announced that they had found a brown paper bag and appellant and his wife were placed under arrest for possession of marijuana. The Rypkemas sat in the living room for another hour to hour and one-half as the police searched further. The search included “tearing paneling off the walls____” A.R.S. § 13-3917 provides: Upon a showing of good cause therefor, the magistrate may, in his discretion, insert a direction in the warrant that it may be served at any time of the day or night. In the absence of such direction, the warrant may be served only in the daytime. For the purposes of this section night is defined as the period from ten p.m. to six-thirty a.m. The state’s first argument is that, although raised in the motion, “the issue [regarding § 13-3917] was not pursued at the corresponding hearing” and suggests that the “notion of waiver should attach.” Our review of the record shows that appellant properly preserved the issue. As conceded by the state, the issue was raised in the motion to suppress. Moreover, contrary to the state’s allegation that appellant did not pursue the issue at the suppression hearing, defense counsel asked Sergeant Judd what information contained in the affidavit supported a finding of good cause for a nighttime search. Judd admitted he could find nothing. The trial court’s minute entry, although expressly addressing the first two issues raised in the motion to suppress and on appeal, did not address the § 13-3917 issue. The Rypkemas then took a special action to the Arizona Supreme Court, which alleged, in part: This Court must take jurisdiction of this Petition for Special Action to correct the plain and obvious error by Respondent Judge Grace in upholding the authorization of said warrant. Evidence is absolutely uncontradicted that there was no cause for authorizing said warrant for said premises at nighttime____ The memorandum accompanying the special action petition further explained the facts and law supporting the above allegation. In the Rypkemas’ reply to the state’s response to the petition, they reiterated that the state “presented no evidence in justification for issuance of a nighttime search warrant____” Therefore, from the record, it is clear that appellant has not waived the nighttime search issue. On the merits, the state argues that several factors were apparent justifying a night search. The specific factors cited are: (1) the urgency of the moment; (2) that drug sales at night are common; (3) that appellant was a known drug trafficker; and (4) that appellant had allegedly just brought back to the residence a large quantity of cocaine. The primary Arizona case on this issue is State v. Jackson, 117 Ariz. 120, 571 P.2d 266 (1977). The court there noted the strong historical aversion to nighttime searches, and the long existence of Arizona statutes requiring that a search warrant be served in the daytime, absent a specific direction by the magistrate that it might be served at night. The court further noted that the Arizona statute in its present form was taken from the California statutes, and therefore decisions from that state are persuasive as to the construction of the statute. The court found sufficient cause for the nighttime search in “that the appellant and the co-defendants were selling marijuana during all times of the day and night from the residence to be searched.” 117 Ariz. at 122, 571 P.2d at 268. The most recent case addressing the issue is State v. Eichorn, 143 Ariz. 609, 694 P.2d 1223 (App.1984). There the officer’s informant’s affidavit stated that: A surveillance conducted since the information was obtained has revealed suspected drug transactions by the listed persons [appellee and his brother] and is continuing. 143 Ariz. at 611, 694 P.2d at 1225. The other affidavit specifically stated as cause for the nighttime search that: Affiant believes that the following information demonstrates good cause for permitting this warrant to be served between 10:00 p.m. and 6:30 a.m.: A surveillance of the two (2) subjects listed [appellee and his brother] revealed suspected drug transactions taking place in the parking lots of two (2) local bars, from the trunk of the Dodge Challenger, between 11:00 p.m. and 1:00 a.m. The surveillance reveals, and your affiant’s experience has shown, that drug transactions and use take place both day and night. In order to preserve evidence which might otherwise be sold or used, your affiant requests that a search warrant be issued for the nighttime hours. 143 Ariz. at 611, 612, 694 P.2d at 1225, 1226. This court, relying on Jackson, found the affidavits were sufficient to justify a nighttime search. The present case is in stark contrast with Jackson and Eichorn. There is absolutely nothing in the officer’s affidavit here to indicate why a nighttime search warrant should issue. There is no statement indicating previous nighttime drug sales or transfers. There is, in fact, no statement regarding any drug transfers from the house at any time of the day. Sergeant Judd candidly admitted at the suppression hearing that: “I don’t see anything in here that fits in for the cause for the nighttime search.” The state’s reliance on the nature of the contraband and the allegation that drug sales often occur at night are insufficient to support a nighttime search. The court in Jackson did note that in Solis v. Superior Court, 63 Cal.2d 774, 48 Cal.Rptr. 169, 408 P.2d 945 (1966), “the common sense knowledge that drug sales are likely at night was found to be good cause.” 117 Ariz. at 122, 571 P.2d at 268. However, the Jackson court found “reasonable cause” in the officer’s statements that sales were “occurring during all times of the day and night from the residence to be searched.” 117 Ariz. at 122, 571 P.2d at 268. Further, we note that Solis appears to no longer be followed by the California appellate courts, although it has not been expressly overruled by the California Supreme Court. See State v. Eichorn. In People v. Watson, 75 Cal.App.3d 592, 142 Cal.Rptr. 245 (1977), the court stated that justifying a nighttime search based on the nature of the contraband alone “would authorize a night service in any narcotic case where there has been prior narcotic activity in the place to be searched.” 75 Cal.App.3d at 596, 142 Cal.Rptr. at 247. It reasoned: Because a night service of a warrant is a more serious invasion of the security of a home than a daytime service, the magistrate’s exercise of discretion cannot be based solely on the nature of the contraband to be seized or the type of crime involved. Such a generalized rule would be repugnant to the Fourth Amendment requirement of particularity of reasons to justify the violation of the right to privacy. 75 Cal.App.3d at 597, 142 Cal.Rptr. at 247. The court held: We conclude that the proper standard for “good cause” as specified in Penal Code section 1553 is as follows: the affidavit furnished the magistrate must set forth specific facts which show a necessity for service of the warrant at night rather than between the hours of 7 a.m. and 10 p.m. This means that the magistrate must be informed of facts from which it reasonably may be concluded that the contraband to be seized will not be in the place to be searched during the hours of 7 a.m. to 10 p.m. 75 Cal.App.3d at 599, 142 Cal.Rptr. at 248. In our case, there was absolutely no indication in the officer’s affidavit that the sought-after cocaine would not be on the premises from 6:30 a.m. to 10:00 p.m. In fact, the affidavit made no effort whatsoever, as testified to by the affiant, to set forth any reasons why the house should be searched at night. It does not indicate drug transfers observed at any time, much less during the night, nor any facts from which the magistrate could infer that there was a possibility of a violent confrontation during a daytime search. See Tuttle v. Superior Court, 120 Cal.App.3d 320, 174 Cal.Rptr. 576 (1981). In State v. Wilson, 25 Ariz.App. 49, 540 P.2d 1268 (1975), Division Two of this court reversed the trial court’s denial of the motion to suppress where the officer’s affidavit failed to satisfy the “good cause” requirement. The opinion does not set forth the officer’s affidavit or the facts of the case, but it does hold that suppression of the fruit of the nighttime search is the proper remedy for a violation of § 13-3917 (formerly § 13-1447). See also Tuttle v. Superior Court. The facts of this case show the invasion of privacy which may result because of a nighttime search. By enacting A.R.S. § 13-3917 (and its predecessors), our legislature has clearly expressed its concern about the “special threat to privacy presented by nighttime police intrusions.” 120 Cal.App.3d at 331, 174 Cal.Rptr. at 582. In conclusion, the affidavit accompanying the requested warrant did not set forth “good cause” for a nighttime search and the trial court consequently erred both by authorizing nighttime service and by denying the subsequent motion to suppress. The judgment is reversed, with directions for the trial court to grant appellant’s motion to suppress items seized pursuant to the search warrant executed on June 11, 1983. CORCORAN and OGG, JJ., concur. . A.R.S. § 13-3917 defines nighttime as between 10:00 P.M. and 6:30 A.M.

FELDMAN, Justice. Philip Gallegos (claimant) asks us to review a decision of the court of appeals, Gallegos v. Industrial Commission, 144 Ariz. 31, 695 P.2d 280 (1984), denying claimant rearrangement of his previous workman’s compensation award. In reaching that conclusion the court held claimant was bound by the actual facts in existence at the time of the previous award and could not rely on the facts established by the award if those facts were incorrect. We granted review because we believe the administrative law judge and court of appeals erred in interpreting the statute, failed to apply the doctrine of res judicata correctly, and because the application of that doctrine in compensation cases is an issue of public importance. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and Rule 23(c)(4), Ariz.R.Civ.App. Proc., 17A A.R.S. FACTS The facts are largely uncontested. Claimant injured his back on January 9, 1978, while working as a laborer for Maricopa County. His pay at the time was $4.15 per hour. In 1979, his physician determined that the condition had become stationary and released claimant for work. Pressing financial need compelled claimant to take a job as a mover for North American Van Lines at an hourly wage of approximately $8.00 per hour. After six weeks, however, he returned to his physician because of pain, and was told that moving furniture was not what the doctor had contemplated when he released claimant for work. He was advised to take more sedentary work, such as clerking or security guard employment. In June 1979, because of continued pain, claimant quit his job at North American. On November 23, 1979, the Industrial Commission (the commission) issued its Findings and Award for Unscheduled Permanent Partial Disability. At the time, unknown to the commission, claimant had quit his job with North American Van Lines, moved to Colorado, and was working for the minimum wage as a pants presser in his brother’s dry cleaning business in Denver. The commission found that claimant had sustained a 15% general physical functional disability. Basing its decision on the information that claimant was employed with North American, however, the commission awarded him no compensation on the ground that he had demonstrated his ability to return to different employment at a wage rate equal to or higher than his pre-injury earnings. Neither party protested the award, and it became final. On August 18, 1982, claimant filed a petition for rearrangement pursuant to A.R.S. § 23-1044(F). The commission denied the petition, and the administrative law judge (ALJ) affirmed after a hearing held on April 23, 1983. Claimant sought review by special action in the court of appeals, which affirmed by memorandum decision. Gallegos v. Industrial Commission, supra. A.R.S. § 23-1044(F) provides, in pertinent part: F. For the purposes of subsection C of this section, the commission shall, ... when the physical condition of the injured employee becomes stationary, determine the amount which represents the reduced monthly earning capacity, and upon such determination make an award of compensation which shall be subject to change in any of the following events: 1. Upon a showing of a change in the physical condition of the workman subsequent to such findings and award arising out of the injury resulting in the reduction or increase of his earning capacity. 2. Upon a showing of a reduction in the earning capacity of the workman arising out of such injury where there is no change in his physical condition, subsequent to the findings and award. (emphasis added) At the April 1983 hearing, the AU correctly found that since claimant’s physical condition had not changed, subsection 1 was inapplicable. To prevail on the rearrangement petition, therefore, claimant would have to fit within subsection 2 and show a reduction in earning capacity causally related to his injury and resulting from some external change in circumstances occurring after the commission issued its final award. At the 1983 hearing on the petition for rearrangement it was learned that at the time of the 1979 award claimant had not actually been capable of earning $8.00 per hour as a mover, but had instead been employed at minimum wages as a pants presser. These were the “actual facts” as they existed in 1979 but were contrary to the findings of the commission as contained in the award of November 23, 1979, which erroneously found no reduction of capacity from the $4.15 pre-injury level. The court of appeals correctly stated that under § 23-1044(F)(2), claimant was required to show a reduction in his earning capacity subsequent to the findings and award of November 1979. It concluded, however, that the evidence presented at the rearrangement hearing showed no difference between the earning capacity of claimant at the time of that hearing and his actual earning capacity at the time of the 1979 award. At 283. Therefore, the court held, claimant had failed to “satisfy the statutory requirements for rearrangement.” Id. at 283. In his petition for review to this court, claimant contends that the facts determined by the 1979 award were that he had the “earning capacity equal to or more than his date of injury wage and hence was not entitled to permanent partial benefits.” Petition for Review at 3-4. He agrees that the 1979 determination is res judicata, but argues that what he was actually earning at the time of the award is immaterial. For the purposes of the rearrangement statute, claimant urges, the doctrine of res judicata applies to the facts as found in the previous award whether or not those facts were correctly found. If this theory is applied, claimant was earning a mover’s wages in November 1979, therefore was capable of earning his pre-injury wage, and now is capable of earning no more than the minimum wage. Thus, claimant argues, he has shown a change or reduction in earning capacity in accordance with the requirements of § 23-1044(F)(2). Respondents reply that the former award was res judicata as to the “facts and circumstances existing prior to the alleged change that is the basis for ... rearrangement.” Response to Petition for Review at 8. They contend that in reality claimant was capable of earning only the minimum wage at the time of the award; since he is now capable of earning the same, they urge that the facts have not changed, and that there exists no basis for rearrangement. THE REARRANGEMENT STATUTE Before 1964, A.R.S. § 23-1044(F) allowed a rearrangement only in the event of a post-award change in the claimant’s physical condition. In Adkins v. Industrial Commission, 95 Ariz. 239, 389 P.2d 118 (1964), faced with a situation where the petitioner accepted the commission’s award and attempted to continue with his usual employment but found that he was too disabled to continue regular work, this court held the statute unconstitutional because it limited rearrangements to situations in which the loss of earning capacity was attributable to increase in physical disability after the final award. The legislature took heed and added subsection 2, permitting rearrangement also when the loss of earning capacity was the proximate result of non-physical changes related to the industrial accident. The present situation, where claimant was earning higher wages at one time but cannot now do so because his injury makes such work medically inadvisable, is the very circumstance that is designed to be encompassed by the statute. Adkins v. Industrial Commission, supra. To meet his burden, the worker who petitions for rearrangement need “only show that his inability to secure or retain work is at least partially injury related.” Laker v. Industrial Commission, 139 Ariz. 459, 462, 679 P.2d 105, 108 (App.1984). See also Bryant v. Industrial Commission, 21 Ariz.App. 356, 357, 519 P.2d 209, 210 (1974). The burden then shifts to the carrier to show lack of causation. Laker v. Industrial Commission, supra. “To require any more than [such] a prima facie showing of the relationship between the decreased earning capacity and the pre-existing injury” would be contrary to “clear legislative intent as set forth in [§ 23-1044(F)(2) ].” Hunt v. Industrial Commission, 107 Ariz. 569, 571, 490 P.2d 575, 577 (1971). We agree that under the guise of a rearrangement petition claimant may not relitigate issues already decided at the time of the first award. Arizona Sand and Rock v. Industrial Commission, 123 Ariz. 448, 600 P.2d 752 (App.1979). As long as the prior award is final, whatever was decided is final and so is every fact necessary to that decision. Both parties here are bound, therefore, by the finding that claimant had suffered no permanent loss of earning capacity as of November 23, 1979. Implicit in that finding is the only fact then before the commission on which the finding could be based. That fact was that claimant’s pre-injury earning capacity ($4.15 per hour) had not been reduced because he was capable of doing, and actually was doing, other work which paid over $8.00 per hour. Although that determination was wrong, it became final. We agree with respondents that the issues determined at the first award are res judicata. Right or wrong, the facts determined by the final order are binding. As the court of appeals noted, the 1979 award is final “ ‘not because of its correctness, but despite its incorrectness’.” Slip op. at 5 (quoting County of Maricopa v. Industrial Commission, 134 Ariz. 159, 163, 654 P.2d 307, 311 (App.1982)). Notwithstanding the actual state of affairs at the time of the award, the commission found that claimant had suffered no loss of earning power. This finding is part of the award and was based on an incorrect determination that claimant could earn and was earning over $8.00 per hour as a mover. This final determination, even though incorrect, is the starting point from which subsequent changes must be measured; evidence of wages actually earned by claimant during the months between the injury and the 1979 date of award is simply not relevant once that award became final. Severy v. S.D. Warren Co., 402 A.2d 53, 55-56 (Me.1979). Thus, we have no disagreement with that part of the holding of the court of appeals which states: Therefore, claimant is bound by the finding that his earning capacity, at the time of the November 1979 award, was as much as or more than his average monthly wage at the time of his industrial injury. At 283. The doctrine of res judicata bars claimant from seeking to recover benefits from the date of the 1979 award to the date of the rearrangement petition on the theory that the “actual facts” establish that his loss of earning capacity in reality predated the first award. The next sentences in the court of appeals’ opinion, however, give us pause: Since the evidence presented to the AU established no change in claimant’s actual (emphasis added) earning capacity subsequent to the [1979] findings and award, claimant fails to satisfy the statutory requirements for rearrangement. This is true despite the fact that the findings and award of November 1979 were factually incorrect ... We fail to see how the court could have concluded that the evidence showed no change. If claimant was bound by the evidence and issues determined in the first award, then so are the respondents. Atkinson Co. v. Kinsey, 61 Ariz. 127, 130, 144 P.2d 547, 548 (1944). For the purposes of the rearrangement petition, therefore, the 1979 award established that claimant was capable of earning $8.00 or more per hour in November 1979 and had suffered no loss of earning capacity. Uncontroverted evidence offered in the rearrangement hearing established that, in April 1983, claimant was capable of earning no more than the minimum wage. Giving res judicata principles their proper effect, we cannot but conclude that claimant did demonstrate a reduction in earning capacity from his pre-injury earnings of $4.15 per hour subsequent to the date of the first award. The respondents, equally bound by the determination that claimant was earning $8.00 or more per hour in November 1979, were released from the duty of paying any compensation between 1979 and 1982, and cannot now be heard to complain because the first award was wrong. See D & T Brooks, Inc. v. Workman’s Comp. A. Bd., 38 Pa.Cmwth. 223, 392 A.2d 895, 898 (1978). We hold, therefore, that subsection 2 of the rearrangement statute [A.R.S. § 23-1044(F) ] is applicable to all situations where, subsequent to the final award, there has been a reduction in earning capacity causally related to the previous injury. Where the first award has become final, the question of change is to be measured by comparing the facts determined by the final findings and award with those existing at the time of the rearrangement peti tion, even if the earlier findings have been made incorrectly. The AU and the court of appeals erred in failing to give finality to the 1979 findings. The award is set aside and the opinion of the court of appeals is vacated. The case is remanded. HOLOHAN, C.J., GORDON, V.C.J., and HAYS and CAMERON, JJ., concur. . The 1979 award did not specify a particular employment. It did contain findings that the claimant had "sustained a 15% general physical functional disability" (Finding # 3), that in determining monthly earning capacity and its reduction the commission had given “full consideration to all ... facts and circumstances pertaining to this case” (Finding # 4) and that claimant “has demonstrated his ability to return to different employment, ... at a rate equal to or in excess of his former employment, thereby sustaining no loss of earning capacity.” (Finding # 5). At that time the information in the file of the commission indicated, by memorandum dated one week prior to the award that: Applicant is working for Valley North American Van Lines. Wages for this type of work at doi [date of injury] paid from $8.68 to $10.63 per hour, which would indicate no loss in earning capacity. Applicant has demonstrated his ability to return to different employment, but based on date of injury wage scale, at a rate equal to or in excess of his former employment, thereby sustaining no loss of earning capacity. Memorandum “To The File” dated November 16, 1979. There is nothing else in the record of the 1979 hearing which would support or explain the finding of no reduction in earning capacity. Both respondent and the court of appeals agree that “ ‘[findings of the commission are sufficient if they can be made certain by reference to the record.” At 283 (quoting Muehlebach v. Dorris-Heyman Furniture Co., 43 Ariz. 526, 531, 33 P.2d 339, 341 (1934)). Thus, we agree with the court of appeals that the ALJ may "properly look outside the award to determine the basis of the prior award." At 284. Of course, "looking outside” means looking to the record of the 1979 hearing to explain the words contained in the 1979 award. It does not extend to looking at new evidence presented at some subsequent time in order to define what should have been meant in the 1979 award. Here, the only evidence before the commission at the time of the 1979 award was that claimant had been working as a mover earning over $8.00 an hour and had therefore sustained no loss of earning capacity. The true facts which existed at the time of the award were unknown to the carrier or the commission. The award was made on the written record of the commission. There was no protest, no hearing and no contest. . There appears to be a split of authority about whether the modification of an award can be made retroactive to the date of the change in condition rather than to the date of filing of the modification petition. See 3 A. Larson, The Law of Workmen’s Compensation, § 81.-52(d)(1983) and cases cited therein. Arizona courts have held that modifications made pursuant to petitions for reopening date from the time of filing of the petitions. Meeks v. Industrial Commission, 17 Ariz.App. 294, 295-96, 497 P.2d 410, 411-12, (1972); Continental Casualty Co. v. Industrial Commission, 104 Ariz. 499, 503, 455 P.2d 977, 981 (1969); Jupin v. Industrial Commission, 71 Ariz. 131, 133, 224 P.2d 199, 200 (1950). There are, however, no cases or statutes explicitly stating that the same is true of petitions for rearrangement under A.R.S. § 23-1044(F)(2). While some jurisdictions have held that the effective date for modification of an award is the date on which the change is shown to have occurred rather than the date of presentation of the modification petition, see, e.g., Barnes and Tucker Co. v. Workmen’s Comp. App. Bd., 39 Pa.Cmwlth. 123, 394 A.2d 1052 (1978), we think that the better reasoned view is one that makes the change effective from the day the petition was filed. In the instant situation, only claimant really knew when his earning capacity decreased, and it was up to him to file a rearrangement petition as soon after that as he could. It would be unfair to burden the employer with the responsibility of making retroactive payments in situations where claimant may have lacked diligence in filing for rearrangement. More importantly, rearrangement is an exception to the rule of finality. The exception may well be necessary considering the limited role of res judicata in workers’ compensation cases. Bill Breck Dodge v. Industrial Commission, 138 Ariz. 388, 392, 675 P.2d 275, 279 (1983) (Feldman, J., concurring). However, to make claimant’s rearrangement petition retroactive to the date of the change in earning capacity would result in an almost complete destruction of the principle of finality. We are not disposed to go so far.

CAMERON, Justice. This is a delayed appeal by the defendant, James Vincent Dosztal, from judgments of guilt to the crimes of armed burglary (former A.R.S. §§ 13-301 and -303), wearing a mask during the commission of a crime (former A.R.S. § 13-981), and assault with a deadly weapon (former A.R.S. § 13-245). He was sentenced to concurrent terms of ten to fifteen years for the armed burglary, one to five years for wearing a ski mask, and fifteen years to life for the assault with a deadly weapon. We have jurisdiction pursuant to Art. 6, § 5(3) of the Arizona Constitution, and A.R.S. §§ 13-4031 and -4035. The issue we must decide is whether our decision in State v. Avila, 127 Ariz. 21, 617 P.2d 1137 (1980), is to have retroactive effect. The facts of this case are not in dispute. Defendant was wounded and apprehended while committing a burglary at a Phoenix drugstore. He was represented by counsel and initially tried by a jury. Part way through the jury trial, and after the direct testimony of the complaining witness, a police officer, defendant waived trial by jury and submitted the matter to the trial court. After informing him of numerous rights he was giving up, the Court found that the waiver was “knowingly, voluntarily and intelligently” made. Defendant did not cross-examine the officer and presented no further evidence. The court, after reviewing the written statements of witnesses, found the defendant guilty. After sentencing, defendant appealed to the Court of Appeals, which affirmed. State v. Dosztal, 123 Ariz. 285, 599 P.2d 241 (App.1979). Defendant then petitioned this Court for review and the petition was granted. We vacated the opinion of the Court of Appeals because defendant had been sentenced to life imprisonment, and, therefore, the Court of Appeals lacked jurisdiction over the appeal. A.R.S. § 13-4031. State v. Dosztal, 135 Ariz. 485, 662 P.2d 450 (1983). We remanded the case to the Superior Court so that defendant could be appointed new counsel for the purpose of bringing a delayed appeal. In State v. Avila, supra, we held that a defendant must be informed of the rights he gives up when electing to waive trial by jury and opting to have guilt or innocence determined by the court. In Avila, we analogized the warnings which a defendant must be given when he submits his case to the court to those required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), whenever a defendant enters a guilty plea. In particular, we stated that an accused must be informed that he waives the following rights by submission of his case to the court: 1. The right to a trial by jury where he may have representation of counsel; 2. The right to have the issue of guilt or innocence decided by the judge based solely upon the record submitted; 3. The right to testify in his own behalf; 4. The right to be confronted with the witnesses against him; 5. The right to compulsory process for obtaining witnesses in his favor; 6. The right to know the range of sentence and special conditions of sentencing. Avila at 24-25, 617 P.2d at 1140-41. In the instant case, it would appear from the record before this Court that defendant was not informed of (3) the right to testify on his own behalf and (5) the right to compulsory process. Defendant contends that Avila requires that we reverse the matter. Avila was filed on 17 September 1980, more than two years after defendant waived his right to trial by jury (on 14 August 1978). Only by giving Avila retroactive effect can the matter be reversed. The U.S. Supreme Court has stated “the Constitution neither prohibits nor requires retrospective effect” for decisions setting forth new constitutional guidelines. Link-letter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601, 608 (1965). “The criteria guiding resolution of the question implicates (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967). The purpose served by Boykin was to prevent fraud, coercion or duress on the defendant in the entering of guilty pleas. In the instant case, the defendant was represented by counsel and the following dialogue took place: THE COURT: Have there been any promises or any threats to make you sign these waivers of trial by jury? DEFENDANT: No. THE COURT: Have there been any promises as to what type of sentence, or any promise that you will get probation on any charge that warrants probation? DEFENDANT: No. THE COURT: The court finds the waiver of trial by jury o[f] both defendants] is made knowingly, voluntarily and intelligently. There does not appear to have been any threats and the finding of the trial court was based on the questions answered by the defendant. Because the dangers with which Avila was concerned are not implicated in the instant case, we do not believe that the purpose of that opinion will be served through its retrospective application here. The second and third criteria, the extent of reliance on the old standards and the burden on the administration of justice that would flow from a retroactive application, also militate in favor of applying Avila prospectively. Boykin was decided in 1969 and Avila in 1980. In the interim, the law in Arizona was that Boykin warnings were required only as to a small subset of cases submitted to the court, namely, when submission was tantamount to a guilty plea. See, e.g., State v. Woods, 114 Ariz. 385, 561 P.2d 306 (1977); State v. Gaines, 113 Ariz. 206, 549 P.2d 574 (1976). Avila, however, extended Boykin rights to all submissions to the court. It represented, therefore, a departure from a rule relied upon for eleven years. Under these circumstances, “[w]e are reluctant to apply a constitutional rule of criminal procedure retroactively as ‘[t]o characterize a past proceeding as unconstitutional and therefore void reflects seriously on the integrity of the law, * * * weakens the confidence of those who trusted in the existence and validity of the rule and undermines the doctrine of the finality of prior determinations.’ ” State v. Ray, 114 Ariz. 380, 383, 560 P.2d 1287, 1290 (App.1977) (quoting State v. Smith, 112 Ariz. 321, 323, 541 P.2d 918, 920 (1975)). Because defendant was wounded during the commission of the offenses charged and apprehended at the scene, no reasonable argument can be made that he was not the person who committed these crimes. Retroactive application of Avila is not warranted as failure to apply its holding retroactively neither affects the integrity of the factfinding process nor results in a clear danger of convicting the innocent. State v. Ray, supra at 383, 560 P.2d at 1290. Although Avila conferred important rights to an accused, “[r]etroactivity is not determined by the value of the constitutional guarantee at issue.” State v. Smith, supra at 323, 541 P.2d at 920. Thus, on numerous occasions we have held that Boy-kin is not retroactive. State v. Taylor, 109 Ariz. 140, 506 P.2d 1034 (1973); State v. Adcox, 108 Ariz. 603, 503 P.2d 945 (1972); State v. Endreson, 108 Ariz. 366, 498 P.2d 454 (1972). No good reason has been advanced for according retroactive effect to a decision which merely applies Boykin in a different context. Avila, therefore, will be given prospective effect only. We have searched the record for fundamental error pursuant to A.R.S. § 13-4035, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), and find none. Defendant’s convictions and sentences are affirmed. HOLOHAN, C.J., GORDON, V.C.J.. and HAYS and FELDMAN, JJ., concur.

CAMERON, Justice. This is a petition for review of an opinion and decision of the Court of Appeals setting aside a workers’ compensation award made to respondent (claimant) by the Industrial Commission of Arizona. Fremont Indemnity Co. v. Industrial Commission 144 Ariz. 350, 697 P.2d 1100 [1984], We have jurisdiction pursuant to Art. 6, § 5(3) of the Arizona Constitution, A.R.S. § 12- 120.24 and Rule 23, Arizona Rules of Civil Appellate Procedure, 17A A.R.S. Two issues are presented for review: 1. For purposes of unscheduling an otherwise scheduled disability award, what effect, if any, may the Industrial Commission give to a New Jersey determination that the petitioner has suffered a prior industrial disability? 2. Assuming the New Jersey determination may be recognized in Arizona, has petitioner proven a loss of earning capacity caused by such disability? The facts of this case are essentially not in dispute. In 1973, the claimant, while living and working in New Jersey, injured his back performing duties within the course and scope of his employment. In 1975, the New Jersey Department of Labor and Industry, Division of Workmen’s Compensation, entered a judgment and awarded benefits based upon its finding that the claimant had sustained an 11% permanent, partial disability. It is undisputed that this disability would have been unscheduled had the injury occurred in Arizona. The claimant subsequently moved to Arizona and commenced employment. In 1980, the claimant injured his knee while working in Tucson for the Estes Company (the employer). He filed a workmen’s compensation claim. The employer’s insurance carrier, Fremont Indemnity Co. (the carrier), awarded the claimant benefits based upon a finding that he had sustained a scheduled 15% permanent, partial disability. The claimant then requested a hearing to urge that his Arizona injury be reclassified as unscheduled. His contention was that his prior unscheduled back disability resulted in an actual loss of earning capacity which, considered with his Arizona knee injury, converted that otherwise scheduled disability into one which was unscheduled. In awarding unscheduled permanent, partial disability benefits, the Administrative Law Judge (ALJ) accorded the New Jersey judgment res judicata effect under the Full Faith and Credit Clause of the United States Constitution. Furthermore, he found that the claimant successfully proved a loss of earning capacity as a result of his New Jersey back injury. The ALJ first found that the claimant had failed to show that the prior New Jersey industrial injury had resulted in a loss of earning capacity at the time of the Arizona knee injury. Upon claimant’s request for review, however, the ALJ modified his previous determination and found that the claimant had shown a loss of earning capacity as a result of the prior New Jersey injury. The Court of Appeals set the award aside holding that the Full Faith and Credit Clause did not apply and that the New Jersey judgment was not “any evidence of pre-existing impairment.” The court further stated: We do not reach the issue of whether the evidence supports the judge’s finding that, due to the pre-existing condition, the claimant suffered a loss of earning capacity at the time of the subsequent injury. 697 P.2d at 1105. We granted claimant’s petition for review of the decision and opinion of the Court of Appeals. Before addressing the specific issues presented, an overview of the applicable workmen’s compensation statutes and cases may be helpful. A.R.S. § 23-1044(B) enumerates several injuries and sets forth a schedule for calculating the duration and amount of disability payments applicable to each. As to injuries not enumerated, such as the claimant’s New Jersey back injury, subsection C provides that compensation shall be unscheduled and based upon loss of earning capacity attributable to the disability. In no event, however, shall compensation extend beyond the termination of the disability. In the event of multiple injuries, contemporaneous or not, compensation often cannot be fixed in an arithmetic manner. Such injuries may result in a total disability more severe than the sum of the individual disabilities. See Ossic v. Verde Central Mines, 46 Ariz. 176, 188, 49 P.2d 396, 401 (1935); 2 A. Larson, Workmen’s Compensation Law § 59.00 (1983). The existence of a prior disability may, therefore, cause an otherwise scheduled subsequent disability award to be converted into one which is unscheduled. Ronquillo v. Industrial Commission, 107 Ariz. 542, 490 P.2d 423 (1971). The claimant must, however, prove at the time of the second injury a loss of earning capacity as a result of the prior disability. Presumptions may aid the claimant in proving the requisite loss of earning capacity: We hold that where there is a prior scheduled industrially related injury, the Commission may not ignore the previous injury when the workman suffers a second industrial injury. * * * In the case of a prior non-industrially related injury which would have been a scheduled award had it been industrially related, there is a presumption that the prior injury had an effect on the earning capacity of the workman at the time of the second injury although this presumption can be overcome * * *. Id. at 544, 490 P.2d at 425. Although no such presumption of lost earning capacity applies to a prior unscheduled disability, Borsh v. Industrial Commission, 127 Ariz. 303, 305, 620 P.2d 218, 220 (1980), a subsequent scheduled disability may, nevertheless, be converted if the claimant proves an actual loss of earning capacity at the time of the second injury as a result of the prior injury. See Yanez v. Industrial Commission, 21 Ariz.App. 367, 519 P.2d 220 (1974). EFFECT OF THE NEW JERSEY JUDGMENT The claimant argues that the ALJ correctly accorded res judicata effect to the New Jersey disability judgment through the Full Faith and Credit Clause. We do not agree. The Full Faith and Credit Clause of the United States Constitution provides in pertinent part: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const. art. IV, § 1. The purpose and effect of this clause is to nationalize the doctrine of res judicata. Durfee v. Duke, 375 U.S. 106, 109, 84 S.Ct. 242, 244, 11 L.Ed.2d 186, 190 (1963). This policy is effectuated when states recognize a sister state’s final judgments as binding and conclusive. Id. Although the Court of Appeals correctly noted that the issue in this case is really one of collateral estoppel, the Full Faith and Credit Clause also encompasses that doctrine. Braselton v. Clearfield State Bank, 606 F.2d 285, 287 (10th Cir.1979). A recent United States Supreme Court decision has cast serious doubt on the applicability of the Full Faith and Credit Clause to workmen’s compensation and other administrative determinations. In discussing the Full Faith and Credit Clause, the Court stated: “the critical differences between a court of general jurisdiction and an administrative agency with limited statutory authority forecloses the conclusion that constitutional rules applicable to court judgments are necessarily applicable to workmen’s compensation awards.” Thomas v. Washington Gas Light Co., 448 U.S. 261, 281-82, 100 S.Ct. 2647, 2661, 65 L.Ed.2d 757, 773 (1980). This result has, however, been sharply criticized. See Sterk, Full Faith and Credit, More or Less, to Judgments: Doubts About Thomas v. Washington Gas Light Co., 69 Geo.L.J. 1329, 1351-60 (1981). A stronger reason for not applying the Full Faith and Credit Clause lies in the fact that the parties are not the same in Arizona as they were in New Jersey. Although the doctrine of collateral estoppel precludes parties and their privies from relitigating issues, it is axiomatic that a stranger to a litigation may not be bound by a determination made therein for purposes of subsequent litigation. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329, 91 S.Ct. 1434, 1443, 28 L.Ed.2d 788, 800 (1971). This rule is premised upon preventing the inherent unfairness of binding a party to an issue determination he had no opportunity to contest. Id. The rule applies in compensation-related applications of the doctrine. 3 A. Larson, supra, § 79.72(e). Thus, the Full Faith and Credit Clause may not be used to bind a litigant to a prior determination to which he was a stranger. See Depper v. Depper, 9 Ariz.App. 245, 248, 451 P.2d 325, 328 (1969); Ayers Asphalt Paving, Inc. v. Allen Rose Cement and Const. Co., 109 Ill.App.3d 520, 523, 440 N.E.2d 907, 909 (1982). In a case similar to that before us, an applicant for federal “black lung” benefits attempted to use a state industrial commission determination to conclusively prove a disability. The Fourth Circuit Court of Appeals rejected the contention that collateral estoppel, through the Full Faith and Credit Clause, conclusively established a disability: Third and finally, claimant contends that the Secretary refused to give Full Faith and Credit to the finding of the Industrial Commission of Virginia (the “commission”) that claimant suffered from pneumoconiosis. Whether or not the Secretary is bound by the decision of the commission involves much more than the bare assertion that the Full Faith and Credit clause applies, for the doctrine of Full Faith and Credit can be used for many purposes. Here, apparently, the claimant advances Full Faith and Credit as a vehicle for applying collateral estoppel. We must therefore review that doctrine and its potential application to this case. Collateral estoppel has been described as follows: [Wjhere the second action between the same parties is upon a different cause or demand ... the judgment in the prior action operates as an estoppel, not as to the matters which might have been litigated and determined, but “only as to those matters in issue or points controverted, upon the determination on which the finding or verdict was rendered. ...” Crowe v. Leeke, 550 F.2d 184, 187 (4th Cir.1977), quoting Commissioner v. Sunnen, 333 U.S. 591 at 598, 68 S.Ct. 715 [at 719], 92 L.Ed. 898 (1948). More simply stated, “collateral estoppel ‘means ... that when a[n] issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law suit’ ”. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Applying these standards, we hold that collateral estoppel does not bind the Secretary to the commission’s determination of pneumoconiosis. The same parties defendant were not involved in the two forums nor was there any privity between the parties which would bind the Secretary to the previous adjudication. We recognize that many courts have taken a more liberal approach to the doctrine of collateral estoppel, as reflected by the district court’s opinion in Eisel v. Columbia Packing Co., 181 F.Supp. 298 (D.Mass.1960): [W]here a plea of collateral estoppel is raised against a plaintiff who had a full trial in a prior action, the decisive question is not whether there is mutuality of estoppel. Nor is the decisive question whether there is technical privity between the second defendant and the first defendant. Instead of such wooden tests, inquiries should be made as to whether plaintiff had a fair opportunity procedurally, substantively and evidentually to pursue his claim the first time. 181 F.Supp. at 301 quoted in North Carolina v. Charles Pfizer & Co., Inc., 537 F.2d 67, 73 (4th Cir.1976). Even this more liberal approach presupposes that the party against whom collateral estoppel is sought to be imposed also was a party, or in privity with a party, when the issue was first litigated. Therefore, we hold that claimant was not denied a fair hearing and that the Secretary was not bound by the determination of the Industrial Commission of Virginia. Artrip v. Califano, 569 F.2d 1298, 1299-1300 (4th Cir.1978) (footnotes omitted). The claimant argues, however, that the New Jersey disability judgment was an in rem “status” determination binding as against the world. We do not agree. In a case analogous to the one before us, a party to a divorce action argued that a divorce decree established prior marital status which should have been given res judicata effect through the Full Faith and Credit Clause. In holding that the decree did not operate to bind nonparties, the Supreme Court of California stated the following: He [the defendant] urges that, since a divorce decree is a judgment in rem, the essential finding that the parties thereto were lawfully married is res judicata in this action, and that, * * * this court must accord full faith and credit to the decree and to the finding of a lawful marriage necessarily implied therein. He alleges that “a judgment in a divorce case must be treated as dealing with status prior to divorce as well as after, and the one independently of the other,” and that the res in a divorce action “is not only the subsequent singleness of the parties, but also their prior marital status — a determination which is ‘immune from collateral attack’.” That contention, however, is opposed to the prevailing rule in most of the jurisdictions of the United States and to several decisions of this court. It is an oversimplification to state that a divorce proceeding is a proceeding in rem, and to proceed from that statement to the assumption that a decree entered therein is res judicata in an action between a party and a stranger thereto, not only as to the subsequent status of the parties with relation to each other, but also as to all issues decided or that might have been decided in the proceeding. The weight of authority holds that a decree of divorce is a judgment in rem only to the extent that it adjudicates the future status of the parties in relation to each other. * * * As between strangers or strangers and parties, however, the decree is res judicata only in that it conclusively determines that the parties are thereafter free to remarry so far as any relation to each other is concerned. It does not establish the previous validity of their marriage against third persons who were not and had no right to be heard thereon. A decision of any court purporting to bind by the findings of fact of an earlier action a person who was not a party thereto and who had no notice or right to a hearing in that action deprives that person of property without due process of law and is prohibited by the Fourteenth Amendment to the United States Constitution. A state court cannot dispense with the requirement of notice and hearing by labelling the proceeding “in rem” if it seeks to make the findings of fact binding upon a stranger to the earlier action. A state court may no more make its findings of fact binding on a person over whom it has no jurisdiction than it may bind him by a judgment in personam when he has not been personally served. Rediker v. Rediker, 35 Cal.2d 796, 800-804, 221 P.2d 1, 3-5 (1950) (citations omitted). See also Riley v. New York Trust Co., 315 U.S. 343, 62 S.Ct. 608, 86 L.Ed. 885 (1942) (Georgia probate judgment in rem insofar as Georgia assets are concerned, but in personam as regards personalty outside of Georgia and binding only as to parties and their privies). We hold, therefore, that because neither the employer nor the carrier were parties to the New Jersey disability judgment, neither could be collaterally es-topped, through the Full Faith and Credit Clause, from contesting that judgment’s validity. At the other extreme are cases which unquestioningly utilize a prior disability determination for purposes of unscheduling a later industrial injury. For example, Veteran’s Administration disability determinations have been used in this manner. Borsch v. Industrial Commission, 127 Ariz. 303, 620 P.2d 218 (1980); Alsbrooks v. Industrial Commission, 118 Ariz. 480, 578 P.2d 159 (1978). We note, however, that the collateral estoppel argument was never raised in those cases. Also, we do recognize cases previously determined by the Arizona Industrial Commission even though the employers in the second injury may not have been the employer or party in the first industrial accident. See, e.g., Morris v. Industrial Commission, 81 Ariz. 68, 299 P.2d 652 (1956). This and other cases recognize that knowledge of the existence and nature of prior injuries can be indispensible in properly setting compensation for later injuries. Between the extremes represented by Altrip, supra, on the one hand, and Borsch and Alsbrook, supra, on the other, we believe there is an intermediate position that best accommodates the various and competing interests. To begin with, the workmen’s compensation law is construed liberally so as to effectuate its remedial purpose. Stainless Specialty Mfg. Co. v. Industrial Commission, 144 Ariz. 12, 695 P.2d 261 (1985); Cook v. Industrial Commission, 133 Ariz. 310, 311, 651 P.2d 365, 366 (1982); Pascucci v. Industrial Commission, 126 Ariz. 442, 444, 616 P.2d 902, 904 (App.1980). To this end, ALJ’s are given wide latitude in the admission of evidence, Gomez v. Industrial Commission, 72 Ariz. 265, 233 P.2d 827 (1951); and they are not strictly bound by the rules of evidence, Ranger Insurance Co. v. Industrial Commission, 15 Ariz.App. 45, 47, 485 P.2d 869, 871 (1971). Under these principles, the rule that strangers to a judgment may not be bound thereby must yield in the workmen’s compensation area. We believe that the principle of “comity” applies to the situation before us. “In general, the principle of ‘comity’ is that the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another state or jurisdiction, not as a matter of obligation, but out of deference and mutual respect.” Brown v. Babbitt Ford, Inc., 117 Ariz. 192, 198, 571 P.2d 689, 695 (App.1977). Comity may be applied even in situations in which the Full Faith and Credit Clause is inapplicable. See Milwaukee County v. M.E. White Co., 296 U.S. 268, 272, 56 S.Ct. 229, 231, 80 L.Ed. 220, 225 (1935). The applicability and scope of the principle of comity is a decision within the court’s discretion. State ex rel. Speer v. Haynes, 392 So.2d 1183, 1185 (Ala.Civ. App.1979); rev’d on other grounds, 392 So.2d 1187 (Ala.1980); Sheridan v. Sheridan, 65 Wis.2d 504, 510, 223 N.W.2d 557, 560 (1975). We believe that by according a prior disability determination of another state presumptive validity, subject to rebuttal, all competing interests are accomodated: 1) the employer and carrier, strangers to the prior proceeding, are given the opportunity to challenge the findings made therein, and 2) the broad remedial purpose of our compensation law is effectuated. The result we reach is compelled by necessity. Because we live in a society with a highly mobile workforce, to require that an injured employee prove again the fact and degree of a prior disability, remote in place and time, would place an impractical burden upon him. Therefore, by reasons of comity, we recognize that the claimant suffered an industrial injury in New Jersey. However, because the injury would have been unscheduled had the accident occurred in Arizona, the employee must still show that the injury resulted in a loss of earning capacity disability. Ronquillo, supra. PROOF OF LOST EARNING CAPACITY The employer and carrier contend that the claimant did not meet his burden of proving lost earning capacity at the time of the second injury. We do not agree. Admittedly, the burden is on the injured employee to show a loss in earning capacity. Felker v. Industrial Commission, 134 Ariz. 19, 653 P.2d 369 (App.1982). To this end, the claimant introduced testimony from Ron Baker, a certified rehabilitation counselor and labor market consultant: Q. Lastly, Mr. Baker, if you assume for the purpose of my question that Mr. Mingin suffered an injury in 1973, to his back in relation to his employment at Jayne’s Motor Freight, and, if you assume that that job required him to be a dockman, * * * has he sustained a loss of earning capacity? A. Yes. The employer and carrier place great emphasis on the fact that the only medical expert to testify before the ALJ, Dr. John Utz, stated that the claimant had not sustained a loss in earning capacity. Expert medical testimony is, however, generally incompetent on the issue of earning capacity. Hoffman v. Brophy, 61 Ariz. 307, 315, 149 P.2d 160, 163 (1944). On the other hand, we have sanctioned testimony on diminished earning capacity by an expert having qualifications similar to Baker’s: The hearing officer must determine the qualifications of all expert witnesses, * * * and Dr. Fisher was determined to be a vocational rehabilitation expert. His testimony related to his field of expertise. Having qualified as an expert, Dr. Fisher then was able to express opinions about the ultimate facts in dispute. Phelps Dodge Corp. v. Industrial Commission, 114 Ariz. 252, 256, 560 P.2d 436, 440 (App.1977) (citations omitted). We hold that there was sufficient evidence from which the ALJ could reasonably have found that the prior industrial injury resulted in a loss of earning capacity and that the knee injury should be converted to an unscheduled disability. The opinion of the Court of Appeals is vacated. Award set aside. HOLOHAN, C.J., GORDON, V.C.J., and HAYS, J., concur. NOTE: Justice STANLEY G. FELDMAN did not participate in the determination of this matter.

OPINION BROOKS, Judge. The City of Phoenix [hereinafter “City”] filed a special action in Maricopa County Superior Court seeking to quash an order issued by Maricopa County Superior Court Judge Robert L. Myers. The order directed the Phoenix Police Department to cause an allegedly mentally disordered person, as to whom a petition for court-ordered evaluation had been filed, to be detained at a hospital facility and to serve copies of the petition, notice of right to hearing, and the court order on her. The City sought a declaratory judgment ruling that the Maricopa County Sheriff has sole legal responsibility in the City of Phoenix, which is within Maricopa County, for taking mentally disordered persons into custody and serving them with process emanating from proceedings pursuant to A.R.S. Title 36, Chapter 5. The City named Maricopa County and the Maricopa County Sheriff [hereinafter “County”] as the real parties in interest. After an order to show cause hearing was held, Judge Marquardt found that Judge Myers had not erred or exceeded the scope of his authority in directing that the Phoenix Police Department serve orders issued in furtherance of mental health proceedings instituted under A.R.S. Title 36, Chapter 5. The trial court denied the motion to quash and ordered that the Phoenix Police Department obey and implement all orders issued to them by the superior court relative to the mental health proceedings. The City appeals to this court. On appeal the City narrows the question it raises. The City no longer argues that the Phoenix Police Department is not authorized to take allegedly mentally disordered persons into custody. The City limits itself to arguing that the Phoenix Police Department is not authorized by Arizona law to serve any process pursuant to the applicable statutes. The order signed by Judge Myers appears to have been issued pursuant to A.R.S. § 36-529, which provides, in relevant part, as follows: A. If, from the review of the petition for evaluation, the court does not determine that the proposed patient is likely to present a danger to self or others prior to his hearing on court-ordered treatment, but determines that there is reasonable cause to believe that the proposed patient is, as a result of a mental disorder, a danger to self or others or gravely disabled, the court shall issue an order directing the proposed patient to submit to an evaluation at a designated time and place, specifying that the evaluation will take place on an inpatient or an out-patient basis. The court may also order that if the person does not or cannot so submit, that he be taken into custody by a police officer and delivered to an evaluation agency. If the court makes such a conditional order, it shall also make a conditional appointment of counsel for the person to become effective when and if the person is taken into custody pursuant to this section. B. If, from review of the petition for evaluation, there is reasonable cause to believe that the proposed patient is, as a result of a mental disorder, a danger to self or others or gravely disabled and that the person requires immediate or continued hospitalization prior to his hearing on court-ordered treatment, the court shall order the proposed patient taken into custody and evaluated at an evaluation agency. The court shall promptly appoint counsel for the proposed patient. If an intercounty agreement authorizes the same, the court may order that the evaluation be conducted in another county, and the superior court of the county where the evaluation is conducted shall have concurrent jurisdiction to make appropriate orders concerning the proposed patient. (Emphasis added.) The City acknowledges that A.R.S. § 36-529(A) directs that persons be “taken into custody by a police officer.” As the City points out, however, the statute does not expressly specify who is to serve orders issued by the superior court pursuant to the statute. Since the statute does not direct any specific person to serve orders, the City concludes that only the sheriff may accomplish such service pursuant to the powers given it in A.R.S. § 11-441(A)(7) which provides that the sheriff shall “[s]erve process and notices in the manner prescribed by law____” Process is defined in A.R.S. § 1-215(26) as “a citation, writ or summons issued in the course of judicial proceedings.” A.R.S. § 1-215(38) provides that a “ ‘[w]rit’ signifies an order or precept in writing issued in the name of the state or by a court or a judicial officer.” The City points out that there is no similar broad statutory authority for city police officers to serve process. Therefore, the City argues that the rule of expressio unius est exclusio alterius is dispositive. See, e.g., Pima County v. Heinfeld, 134 Ariz. 133, 654 P.2d 281 (1982); Lewis v. Industrial Commission, 93 Ariz. 324, 380 P.2d 782 (1963). The City contends that the effect of this rule in this situation would be that since A.R.S. § 11-441(A)(7) specifically mandates that the sheriff is to serve process, it implies that this task shall not be performed by others who are not mentioned. The City acknowledges that there is nothing to preclude Phoenix Police officers from serving process if Arizona law so designates. The City points out that, in general, the duty of its police officers to serve process is limited to a duty to serve all writs and processes issued by the City Magistrate. Phoenix City Code, Chapter 2, Art. IV, § 2-119(b). However, the City does not dispute that its charter recognizes that all acts required by the laws of the state must be carried out or enforced and that the city council is to enact appropriate legislation to accomplish this. Phoenix City Charter, Chapter 4, § 2(64). Among the responsibilities of the Phoenix Police Department are the enforcement of state laws and city ordinances, protection of life and property, and preservation of law and order. Phoenix City Code, Chapter 2, Art. I, § 2-37. The City does not deny that its police officers are authorized and required to serve process, such as arrest and search warrants, issued by state and county judges in certain specific circumstances as directed by Arizona law. The City’s argument is simply that A.R.S. Title 36, Chapter 5, does not authorize police officers to serve process for mental health proceedings and, without such specific authority, they cannot do so since the general authority for serving process lies solely within the county sheriff’s office. The County argues, and the superior court so found in ruling on the petition for special action, that the legislature intended for “peace officers,” including Phoenix police officers, to perform and fulfill duties and follow orders issued by the superior court pursuant to a proceeding arising out of A.R.S. Title 36, Chapter 5, even though specific duties are not individually designated. In deciding whether the mental health statutes, specifically A.R.S. § 36-529, may be construed to authorize service of process thereunder by the Phoenix Police Department, we must determine, if possible, the intent of the legislature. The fundamental rule of statutory construction is to ascertain and to give effect to the intention of the legislature as expressed in the statute. Arizona Dept. of Revenue v. Maricopa County, 120 Ariz. 533, 587 P.2d 252 (1978). To arrive at the intention of the legislature, the court looks to the words, context, subject matter, effects and consequences, reason and spirit of the law. Arnold Const. Co. v. Arizona Bd. of Regents, 109 Ariz. 495, 512 P.2d 1229 (1973). The City argues that this court must look only to A.R.S. § 36-529 to determine whether the Phoenix Police Department is authorized to serve process arising under that particular statutory section. We disagree. Statutory construction requires that provisions of a statute be read and construed in the context of related provisions and in light of its place in the statutory scheme. Grant v. Board of Regents, 133 Ariz. 527, 652 P.2d 1374 (1982). Arizona Revised Statutes Title 36, Chapter 5, is Arizona’s statutory law governing mental health services. Among the topics covered by the mental health statutes are court-ordered evaluation, A.R.S. § 36-520 to -531, and court-ordered treatment, A.R.S. § 36-533 to -544. Numerous sections of the statutes describe circumstances in which an allegedly mentally disordered person must be taken into custody and delivered to an evaluation or treatment agency, at the direction of the superior court or, in other instances, at the direction of specified personnel at the evaluation and treatment agencies. It is clear that the legislature intended for “peace officers” to perform the tasks of taking such persons into custody and transporting them where needed. See for example A.R.S. § 36-524, -525, -540 and -544. “Peace officers” are specifically defined in A.R.S. § 36-501(22) to mean “sheriffs of counties, constables, marshals and policemen of cities and towns.” Clearly the term “peace officers” includes the officers of the Phoenix Police Department. Arizona Revised Statutes § 36-529 is the statutory section under which the superior court determines whether to order evaluation of an allegedly mentally disordered person and/or to order detention of the person until he can be evaluated. The statute provides for three differing orders to issue from the court depending on the condition of the proposed patient. First, if the court determines that there is reasonable cause to believe that the proposed patient is, as a result of a mental disorder, a danger to self or others or gravely disabled, but that he is unlikely to present a danger to himself or others prior to his hearing, the court shall merely issue an order directing the proposed patient to submit to evaluation. This is described in the first sentence of § 36-529(A). Second, the court may also order that if the person does not or cannot so submit, that he be taken into custody by a “police officer” and delivered to an evaluation agency. This is described in the second sentence of § 36-529(A). Third, if the court determines that there is reasonable cause to believe that the proposed patient is, as a result of a mental disorder, a danger to himself or others or gravely disabled and that the person requires immediate or continued hospitalization prior to his hearing on court-ordered treatment, the court shall order the proposed patient taken into custody and evaluated at an evaluation agency. This is described in the first sentence of § 36-529(B). The present case appears to be an example of the third situation, in which the court determined that the proposed patient needed immediate hospitalization prior to her hearing on court-ordered treatment. The City objects to the fact that the court ordered the Phoenix Police Department to serve copies of the order, the petition for evaluation and the notice of hearing on the proposed patient at the time it was ordered to take the patient into custody. Presumably the City would also object to its police officers being involved in the first situation described in which the patient would merely be served with an order rather than being taken into custody. We find no merit in the City’s position. Certainly the statute could have been drafted more precisely. For example, § 36-529(A) specifies that the proposed patient be taken into custody by a “police officer” instead of using the general term “peace officer” which is otherwise used throughout the statute. The statutory language in § 36-529(B) provides for the patient to be taken into custody without stating who is to take him into custody. While the legislature could have taken more pains to insert the term “peace officer” in each instance that the statute directs an allegedly mentally disordered person to be taken into custody or transported, we find it clear from the statutory scheme that the legislature intended peace officers to perform these tasks. Moreover, we find it clear that the legislature intended for peace officers to carry out all directives from the superior court described in the act which would normally be done by any kind of a peace officer, such as the service of process and notices pursuant to court order. The courts will avoid statutory interpretations that lead to absurd results which could not have been contemplated by the legislature. Knoell Bros. Const., Inc. v. State Dept. of Revenue, 132 Ariz. 169, 644 P.2d 905 (App.1982). We find it inconceivable that the legislature would have authorized the superior court to direct the Phoenix Police Department to take a proposed patient into custody but would have required that only the sheriffs office simultaneously serve that person with copies of the petition for evaluation, notice of hearing and court orders. For the reasons stated herein, we uphold the ruling of the trial court. The superior court is authorized, pursuant to A.R.S. Title 36, Chapter 5, to direct peace officers, including the Phoenix police officers, to serve court orders and related documents arising under the statutes. As a final matter we note that the County has included a request for costs and fees in its brief. Assuming that the County’s request for fees means “attorney’s fees,” we note that no authority for such an award has been cited, see Rule 21(c), Arizona Rules of Civil Appellate Procedure, and the request is denied insofar as it relates to attorney’s fees. The County may file its statement of costs pursuant to Rule 21, Arizona Rules of Civil Appellate Procedure. Affirmed. HAIRE, P.J., and KLEINSCHMIDT, J., concur. . We note that the City’s petition for special action contained allegations that the Maricopa County Sheriffs Office had threatened that it would not pick up or serve mentally deranged persons within the city limits of Phoenix and had sent various pickup orders to the Phoenix Police Department instead of executing them. No evidence regarding these allegations appears in the record. The trial court dealt solely with the question of whether legal authority exists for the Maricopa County Superior Court to direct the Phoenix Police Department to carry out orders issued to them by the superior court relative to A.R.S. Title 36, Chapter 5, proceedings, and this court is so limited on review.

OPINION JACOBSON, Chief Judge. The sole issue raised in this review is whether the Industrial Commission of Arizona has jurisdiction to adjudicate the rights of an injured Indian worker, where the injury occurs on an Indian reservation and the employer is a wholly-owned entity of an Indian tribe. The facts are not in dispute. The claimant, Dernie Bead, is an enrolled member of the White Mountain Apache Tribe and resides on the Fort Apache Indian Reservation located in northeastern Arizona. On December 3, 1979, he suffered an industrially-related crush injury to his left hand while employed by the Fort Apache Timber Company (FATCO). FATCO is wholly-owned by the White Mountain Apache Tribe and the accident occurred within the exterior boundaries of the Fort Apache Indian Reservation. FATCO carried a workers’ compensation policy issued by Aetna Insurance Company. This policy contained the following provisions: 8. Statutory Provisions— Coverage A. The [insurance] company shall be directly and primarily liable to any person entitled to the benefits of the workmen’s compensation law under this policy. The obligations of the company may be enforced by such person, or for his benefit by any agency authorized by law, whether against the company alone or jointly with the insured. Bankruptcy or insolvency of the insured or of the insured’s estate, or any default of the insured, shall not relieve the company of any of its obligations under Coverage A. All of the provisions of the workmen’s compensation law shall be and remain a part of this policy as fully and completely as if written herein, so far as they apply to compensation and other benefits provided by this policy and to special taxes, payments into security or other special funds, and assessments required of or levied against compensation insurance carriers under such law. Following his injury, the claimant filed a report of injury with the Industrial Commission, and the carrier accepted the claim by a Notice of Claim Status, also filed with the Commission. The employer, FATCO, also filed with the Commission an Employer’s Report of Injury. During the processing of this claim, the Commission pursuant to A.R.S. § 23-1061(F) made an independent determination of the claimant’s average monthly wage. Pursuant to the average monthly wage determination, full worker’s benefits, required under Arizona law, were paid by the carrier until August 16, 1982, when the claimant was released to work. On February 2, 1983, the carrier issued a Notice of Claim Status closing the claim as a scheduled 80% permanent impairment of the left upper extremity. This notice of claim status contained the following: NOTICE TO CLAIMANT: If you do not agree with this notice, and wish a hearing on the matter, your written Request for Hearing must be received at either office of the Industrial Commission listed below within NINETY (90) DAYS after the date of mailing of this NOTICE, pursuant to A.R.S. § 23-941 and 23-947. IF NO SUCH APPLICATION IS RECEIVED WITHIN THAT NINETY DAY PERIOD, THIS NOTICE IS FINAL. (Emphasis in original.) Pursuant to this notice, the claimant filed a request for hearing with the Industrial Commission contending either that he had sustained a greater than 80% permanent injury or that the injury should be treated as unscheduled. A hearing was set on this request. Prior to the hearing, both the employer and the carrier moved to dismiss the request for hearing, contending that the Industrial Commission of Arizona lacked jurisdiction over the employer and the carrier. This motion was extensively briefed by all parties and on October 24, 1983, the administrative law judge issued an order denying the motion to dismiss. Following the denial and a request for review, both the carrier and FATCO sought review in this court of the order denying the motion to dismiss to resolve the jurisdictional issue. As previously indicated, the sole issue presented by this review is whether the Commission, an administrative agency of the State of Arizona, may exercise jurisdiction to adjudicate the rights and obligations of the claimant, carrier and employer under the circumstances of this case. In order to resolve this basic issue, we are required to determine: 1. Whether the sovereignty accorded Indian tribes precludes the state from exercising jurisdiction over that tribe. 2. Whether 40 U.S.C. § 290 allows the state to apply its workers’ compensation laws within the exterior boundaries of an Indian reservation. 3. Whether, under the facts of this case, the employer has waived its sovereign immunity. 4. Assuming jurisdiction cannot be exercised over the employer, whether the State may exercise jurisdiction over the carrier. The employer’s basic contention is that principles of sovereign immunity preclude the State, through its administrative agency, the Industrial Commission, from exercising jurisdiction over the employer. We agree that the State of Arizona recognizes that Indian tribes located within its boundaries are to be accorded sovereign immunity. Morgan v. Colorado River Indian Tribe, 103 Ariz. 425, 443 P.2d 421 (1968) (holding that the State of Arizona lacked jurisdiction, on the basis of sovereign immunity, over the Colorado River Indian Tribe so as to be able to adjudicate a tort allegedly committed by that tribe outside tribal boundaries.) We also agree that sovereign immunity has been accorded subordinate tribal enterprises, and in particular, FATCO. White Mountain Apache Indian Tribe v. Shelley, 107 Ariz. 4, 480 P.2d 654 (1971). The claimant does not seriously contend that FATCO is not entitled to be accorded sovereign immunity. Rather, he first argues that Congress by enacting 40 U.S.C. § 290, has carved out an exception to that doctrine in the area of workers’ compensation. 40 U.S.C. § 290 provides in part: State workmen’s compensation laws; extension to buildings and works of United States. Whatsoever constituted authority of each of the several States is charged with the enforcement of and requiring compliance with the State workmen’s compensation laws of said States and with the enforcement of and requiring compliance with the orders, decisions, and awards of said constituted authority of said States hereafter shall have the power and authority to apply such laws to all lands and premises owned or held by the United States of America by deed or act of cession, by purchase or otherwise, which is mthin the exterior boundaries of any State____ For the purpose set out in section 1 of this Act, [the first paragraph of this section] the United States of America hereby vests in the several States within whose exterior boundaries such place may be, insofar as the enforcement of State workmen’s compensation laws are affected, the right, power and authority aforesaid____ (Emphasis added.) Claimant argues that since the land underlying FATCO’s operation is owned by the United States of America, albeit in trust for the White Mountain Apache Tribe, the provisions of 40 U.S.C. § 290 are applicable and allow the State of Arizona, through the Industrial Commission, to apply this state’s workers’ compensation laws to this injury. In our opinion, the question of whether Arizona’s compensation laws operate within the boundaries of an Indian reservation located in Arizona has been clearly answer- ed by both this state’s courts and the federal courts. In Johnson v. Kerr-McGee Oil Industries, Inc., 129 Ariz. 393, 631 P.2d 548 (App.1981), appeal dismissed for want of substantial federal question, Johnson v. Kerr-McGee Oil Industries, 454 U.S. 1025, 102 S.Ct. 560, 70 L.Ed.2d 469 (1981), Division 2 of the Arizona Court of Appeals rejected arguments that simply because the alleged injury occurred within the exterior boundaries of an Indian reservation, the provisions of 40 U.S.C. § 290 were inapplicable. A like result was reached by the Ninth Circuit Court of Appeals in Begay v. Kerr-McGee Corporation, 682 F.2d 1311, 1319 (9th Cir.1982), which held: The language of U.S.C. § 290 unambiguously permits application of state workers’ compensation laws to all United States territory within the state. Claims by Indians against non-Indian employers are not matters of ‘self-governance in purely intramural matters’ sufficient to avoid the rule that Indians are subject to such federal laws of general application [citation omitted] and the exercise of state jurisdiction over such claims does not, even minimally, infringe upon or frustrate tribal self-government, [citation omitted] The carrier and employer quickly point out that the employer in both these cases were non-Indian and therefore the conclusions drawn are not applicable to Indian employers. They conclude by urging the traditional concepts of “preemption” and “infringement” established by Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959) and its progeny be utilized when analyzing the applicability of state laws to Indian territories. Given our singular lack of success in applying these concepts (see White Mountain Apache Tribe v. Bracker, supra, and McClanahan v. State Tax Commission of Arizona, supra) we decline to again attempt that type of analysis. Rather, we are convinced that whatever 40 U.S.C. § 290 attempted to accomplish by making states’ workers’ compensation laws applicable to federal enclaves, it did not have the effect of abrogating the doctrine of sovereign immunity. Roelofs v. United States, 501 F.2d 87 (5th Cir.1974), rehearing denied, 511 F.2d 1402, cert. denied, 423 U.S. 830, 96 S.Ct. 49, 46 L.Ed.2d 47 (1975); Watkins v. United States, 479 F.Supp. 785 (D.S.Car.1979); See Swatzell v. Industrial Commission, 78 Ariz. 149, 277 P.2d 244 (1954). We therefore hold that having recognized the sovereign immunity of the White Mountain Apache Tribe and FATCO, 40 U.S.C. § 290 has not abrogated that sovereign immunity. We now turn to the claimant’s argument that the employer and carrier have waived that immunity. The basis of waiver is grounded in the following acts of the employer and the carrier: (1) obtaining and entering into a contract for workers’ compensation insurance which by its terms makes applicable the provisions of Arizona’s compensation laws; (2) by the carrier filing acceptance of the claimant’s claim with the Industrial Commission; (3) by the employer filing an Employer’s Report of Injury with the Industrial Commission; (4) by the carrier paying benefits based upon a determination of average monthly wage made by the Industrial Commission; and (5) by the . carrier advising the claimant by its Notice of Claim Status that the claimant’s recourse was through the Industrial Commission of Arizona. In analyzing the waiver argument, we start with the proposition that tribal immunity may be waived. S. Unique Ltd. v. Gila River Pima Maricopa Indian Community, 138 Ariz. 378, 674 P.2d 1376 (App.1983). However, such a waiver cannot be implied, but must be unequivocally expressed. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). We have previously rejected the argument that 40 U.S.C. § 290, by its terms, abrogated sovereign immunity. We also reject the argument that this legislation, in the absence of an unequivocal expression of congressional intent to do so, waived the tribe’s dependent sovereign immunity. See Santa Clara Pueblo v. Martinez, supra. In this case the record is devoid of any express waiver by the tribe of its sovereign immunity. The claimant argues, however, that FATCO, by purchasing a policy of workers’ compensation insurance, which by its terms is subject to the compensation laws of Arizona, has expressly waived its immunity at least to the extent of the insurance coverage. A similar argument was made and rejected in Graves v. White Mountain Apache, Tribe Etc., 117 Ariz. 32, 570 P.2d 803 (App.1977). Graves involved the purchase by the tribe of a liability insurance policy which covered the negligence of FATCO in its business operations. The court refused to imply a waiver of sovereign immunity by such a purchase. Claimant seeks to distinguish Graves on two grounds: (1) that Congress by enactment of 25 U.S.C. § 123 has authorized the purchase of the insurance involved here, a fact not alluded to in Graves, and (2) the policy by express terms makes applicable the provisions of Arizona’s workers’ compensation laws. The existence of congressional authority for the tribe to purchase insurance under 25 U.S.C. § 123 can no more rise to the level of a waiver of sovereign immunity than the existence of 40 U.S.C. § 290. Nothing in 25 U.S.C. § 123 constitutes an unequivocal expression of legislative intent to waive sovereign immunity, and therefore none can be implied. Santa Clara Pueblo v. Martinez, supra. As to the contract provisions themselves, the applicability of Arizona’s compensation laws are limited to “compensation and other benefits” provided by those laws. We see nothing in the contract provisions which expressly provide that the “compensation and other benefits” are to be adjudicated by the Industrial Commission. In absence of such a provision, nothing would justify us in finding an express waiver of immunity. The claimant also points to various acts of the carrier and the employer, FAT-CO, which on their face indicate an acquiescence in the exercise of Industrial Commission jurisdiction. This argument of “waiver by conduct” was answered in United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 513, 60 S.Ct. 653, 657, 84 L.Ed. 894, 899 (1940): It is a corollary to immunity from suit on the part of the United States and the Indian Nations in tutelege that this immunity cannot be waived by officials. If the contrary were true, it would subject the government to suit in any court in the discretion of its responsible officers. This is not permissible. We therefore reject claimant’s arguments on waiver. Finally, the claimant argues that even if the Commission lacks jurisdiction over the employer, FATCO, it may exercise jurisdiction over the non-Indian carrier. We disagree. It is clear that Article 18, § 8 of the Arizona Constitution which authorized the legislature to enact a workers’ compensation law intended to regulate, as between an employer and its employees, the manner in which work-related injuries were to be compensated. Pressley v. Industrial Com mission, 73 Ariz. 22, 236 P.2d 1011 (1951). Pursuant to this constitutional provision, the primary responsibility for providing compensation rests with the employer: ... compensation shall be required to be paid to any such workman, in case of his injury ... by the employer____ (emphasis added) See, Culver v. Industrial Commission, 23 Ariz.App. 540, 534 P.2d 754, 757 (1975). That the primary responsibility for providing compensation is the employer is made clear by A.R.S. § 23-961. This statute provides in part: A. Employers shall secure workers’ compensation to their employees in one of the following ways: 1. By insuring ... the payment of such compensation with ... an insurance carrier authorized by the director of insurance to write workers’ compensation insurance in this state. 2. By furnishing to the commission satisfactory proof of financial ability to pay the compensation directly in the amount and manner and when due as provided in this chapter, (emphasis added) Moreover, the “employers” who are required to comply with the act are limited. Article 18 § 8 is limited by its terms to employers who employ “workmen engaged in manual or mechanical labor in all public employment whether by the state, or any political subdivision or municipality thereof as may be defined by law and in such private employment as the legislature may prescribe.” Pursuant to this constitutional provision, the legislature has defined employers subject to the act, by A.R.S. § 23-902 as: “ ... the state, each county, city, town, municipal corporation, school district and every person who has in his employ any workmen ... regularly employed ...” Is the White Mountain Apache Tribe and its wholly-owned entity, FATCO, an “employer” within this definition? We believe not. We have previously held that because of the sovereign immunity enjoyed by FATCO, it could not be subject to the adjudicatory powers of the Commission. If this be true, it obviously is not a covered employer within the meaning of the Workers’ Compensation Act. A similar result was reached in regard to the federal government. Swatzell v. Industrial Commission, supra. Under A.R.S. § 23-921, the Commission only has the power to adjudicate “claims for compensation arising out of provisions of this chapter ...” It has long been the law in Arizona that the Commission is without jurisdiction to adjudicate a “claim” arising out of an injury where the employer was not covered under the act. Melendez v. Johns, 51 Ariz. 331, 76 P.2d 1163 (1938); Madrigal v. Industrial Commission, 69 Ariz. 138, 210 P.2d 967 (1949). Since the Commission lacks jurisdiction to adjudicate claimant’s “claim”, it of necessity lacks jurisdiction over the insurer of that claim. The claimant has argued that if the Commission lacks jurisdiction, he is without a remedy. Both the employer and the carrier have alleged that the Apache tribal court is available to adjudicate the claimant’s rights under the workers’ compensation policy issued by the carrier. We need not, indeed cannot, here determine the jurisdiction of the tribal court, nor what law that tribal court may apply in adjudicating claimant’s claim. Suffice it to say, a forum may be available to resolve this controversy- The order of the Industrial Commission denying the motion to dismiss is set aside. EUBANK, P.J., and OGG, J., concur. . See White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 115 (1973); McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973). . 25 U.S.C. § 123 provides: § 123. Expenditure from tribal funds without specific appropriations No money shall be expended from Indian tribal funds without specific appropriations by Congress except as follows: Equalization of allotments, education of Indian children in accordance with existing law, per capita and other payments, all of which are hereby continued in full force and effect: Provided, That this shall not change existing law with reference to the Five Civilized Tribes. (May 18, 1916, ch. 125, § 27, in part, 39 Stat. 158.) . We note that Division 2, in the case of Val/Del, Inc. v. Superior Court, Ariz.(2 CA-SA 133, filed January 2, 1985) held that the Pascua Yaqui Tribe waived its sovereign immunity by entering into a contract containing an arbitration clause. It appears this waiver was based in part on 25 U.S.C. § 1300f(c), granting the State of Arizona the right to exercise civil jurisdiction within the boundaries of the Pascua Yaqui Tribal lands. 25 U.S.C. § 1300f(c) is not applicable to the White Mountain Apache Tribe. . The carrier has argued that A.R.S. § 23-963(2) which provides that all compensation policies shall be deemed to contain a provision “that jurisdiction of the employer shall be jurisdiction of the insurance carrier” also requires a holding that the Commission lacks “jurisdiction” over it, being unable to acquire "jurisdiction" over the employer. We decline to base our ruling on this interpretation of that statute.

OPINION BROOKS, Presiding Judge. This is a special action review of an Industrial Commission award imposing on the petitioners exclusive liability for a compensable occupational disease. Compensability is now conceded. The sole dispute is between two employers and their respective carriers concerning liability for this disease. For the following reasons, we set aside the award. PROCEDURAL HISTORY Between December, 1977 and February, 1980, the respondent employee (claimant) worked for the petitioner employer, Fosgate Electronics (Fosgate). Three different insurers were at risk: American Insurance Co. (American), from December, 1977 to April, 1979; the Industrial Commission Special Fund, from April, 1979 to October, 1979; and Sentry Insurance Co. (Sentry), from November 1, 1979 to February 19, 1980. Between March, 1980 and October, 1980, claimant worked for the respondent employer, Merrill Cable Equipment Corp. (Merrill). Premier Insurance Co. (Premier) was at risk then. Both employments exposed claimant to solder flux. At Fosgate, she performed a dipping operation that directly exposed her to strong fumes and billowing smoke two to three hours a day. At Merrill, she soldered circuits to boards throughout a ten-hour shift. In addition, her work station was twice moved, which increased her exposure to fumes and smoke from a similar dipping operation. In 1978, claimant first had asthma-like symptoms of cough, wheezing and shortness of breath. These arose when she was exposed to solder flux at work and abated when she was away from work. Beginning in November, 1978, she periodically saw her family physician, Lawrence Shapiro, M.D., for respiratory problems, but never missed work. By late May, 1980, her symptoms were chronic. She returned to Dr. Shapiro, who referred her to a pulmonary specialist, Robert J. Clark, M.D. Dr. Clark diagnosed hypersensitive lung disease caused by exposure to solder flux at work. He initially treated the condition with medication, but when claimant failed to respond, the doctor advised her to stop working where she was exposed to solder flux. Claimant then quit her job in accordance with Dr. Clark’s recommendation and subsequently filed her claims for workers’ compensation. Pending hearings, three pulmonary specialists examined claimant: Arnold Serbin, M.D., John L. Friedman, M.D., and Gregory Lauver, M.D. These medical experts together with Drs. Shapiro and Clark all testified at the first set of hearings. Dr. Lauver then performed a challenge test, a controlled exposure to solder flux with a pulmonary function study to monitor the effects. After this test, the four pulmonary specialists again testified. All the interested parties had the opportunity to examine or cross-examine each witness. This generated a record that is voluminous, complex and conflicting. The administrative law judge responded with a forty page award. We attempt to summarize the relevant findings as follows: (1) Although claimant had preexisting emphysema from cigarette smoking, her current condition was primarily hypersensitive lung disease from exposure to solder flux at work. ■ (2) The hypersensitivity is an allergic reaction that suddenly develops after exposure to an allergen. Once sensitization occurs, it is permanent. In the present case, claimant was sensitized in the spring of 1978 working for Fosgate while American was at risk. (3) Exposures subsequent to sensitization produced allergy-like symptoms, but the evidence is insufficient to show that their effect was a “significant and/or measurable ‘permanency’.” (4) Claimant’s condition is an occupational disease. A.R.S. § 23-901.02, which determines the party liable for a compensable occupational disease, applies only if an exposure causes a permanent injury or anatomic change. (5) The date of disability therefore is not determinative. Merrill is liable only if claimant suffered increased permanent injury while working for it. (6) Because sensitization itself is a permanent injury and the evidence concerning subsequent exposures is insufficient to prove a permanent injury, claimant was last injuriously exposed working for Fosgate while American was at risk. They, therefore, are exclusively liable for the occupational disease. The award was affirmed on administrative review, and this special action followed. LEGAL ANALYSIS The parties correctly characterize claimant’s condition as an occupational disease. An occupational disease is one that is “due to causes and conditions characteristic of and peculiar to a particular ... employment, and not the ordinary diseases to which the general public is exposed____” A.R.S. § 23-901(12)(c); see Phoenix Pest Control v. Industrial Commission, 134 Ariz. 215, 655 P.2d 39 (App.1982) (sensitized airways caused by exposure to pesticides at work is an occupational disease). The special occupational disease statutes therefore apply to this claim. See Phoenix Pest Control, 134 Ariz. at 219-20, 655 P.2d at 43-44; see generally A.R.S. § 23-901.01 to -901.05. In particular, the last injurious exposure rule determines the party liable for a compensable occupational disease: Where compensation is payable for an occupational disease the only employer liable shall be the employer in whose employment the employee was last injuriously exposed to the hazards of such disease____ A.R.S. § 23-901.02 (emphasis added). This case is of first impression. Prior cases have applied the last injurious exposure statute to occupational diseases involving cumulative exposures that culminate in a disabling disease. E.g. Utah Constr. Co. v. Berg, 68 Ariz. 285, 205 P.2d 367 (1949) (silicosis from cumulative exposure to silicone dioxide dust during 30 years of employment — applying predecessor statute, A.R.S. § 56-1214); State Compensation Fund v. Joe, 25 Ariz.App. 361, 543 P.2d 790 (1976) (lung cancer from exposure during many years of uranium mining). In contrast, in the instant case, the exposure was harmless until a date certain when sensitization occurred; after that, exposure caused an allergic reaction because of the sensitization. We must decide whether or not these subsequent exposures were injurious within the meaning of our statute. The respondents principally rely on Matter of Compensation of Bracke, 293 Or. 239, 646 P.2d 1330 (1982). Bracke is a meat wrapper’s asthma case. The claimant became sensitized to fumes while working for her first employer and required medical treatment for her symptoms. After working for two other employers, her symptoms became more severe and she had to stop work. Exclusive liability was imposed on the first employer: Liability was properly assigned ... in this case because the disease was contracted and disability occurred during [the first] employment____ [T]he [subsequent] employment ... did not contribute to the cause of, aggravate, or exacerbate the underlying disease____ Rather, claimant’s subsequent employment only activated the symptoms of a pre-existing disease____ Liability for the disability caused by the underlying disease is fixed when the disability arises. A recurrence of symptoms which does not affect the extent of a continuing underlying disease does not shift liability for the disabling disease to a subsequent employer. 646 P.2d at 1337 (emphasis added). Bracke appears analogous to our case. We are unpersuaded by it, however, because of its application of the legal analysis to the facts. This legal analysis relied on the extensive discussion of the last injurious exposure rule in the leading workers’ compensation treatise. See generally Larson, Workmen’s Compensation Law, §§ 95.00 to 95.28 (1984). According to Larson, the purpose of the last injurious exposure rule is remedial. It relieves the claimant of the burden of proving the proportionate responsibility of multiple employers and their respective carriers. Larson, supra, § 95.24 at 17-148 to -149. It serves not to identify the employer and carrier actually responsible for the disease in a particular case, but rather to spread fairly the risk of liability for an occupational disease among the employers who expose workers to the danger of the disease and their respective carriers. Most jurisdictions use a bright-line test to identify when the last injurious exposure occurred: the date of disability is determined and liability is imposed “by simply searching backward to find the last time when claimant was exposed to the disease-causing substance, subject of course to the jurisdiction’s rules on the degree of exposure required.” Larson, § 95.25(a) at 17-150 to -154 (footnotes omitted). In this context, “disability” means loss of ability to work: When the onset of disability is the key factor in assessing liability under the last-injurious-exposure rule, it does not detract from the operation of this rule to show that the disease existed under a prior employer or carrier, or had become actually apparent, or had received medical treatment, or, indeed ... had already been the subject of a claim filed against the prior employer, so long as it had not resulted in disability. Id. at 17-154 (footnotes omitted). Statutes may prescribe the measure of an injurious exposure for particular diseases. Cf. A.R.S. § 23-901.02 (for silicosis or asbestosis, the employer liable is the last one at which the employee was exposed to harmful quantities of silicone dioxide dust for at least two years). Absent a statutory prescription, most jurisdictions require no more than some exposure of a kind that could cause the disease. Larson, § 95.-26(a). A minority requires an exposure of such a length or degree that it could have actually caused the disease. Once disability develops, however, a mere recurrence of symptoms does not shift liability to a subsequent employer or carrier. Id. § 95.27. Whether the measure of an injurious exposure is any exposure of a kind that could cause the disease or an exposure sufficient to have actually caused the disease, proof that a particular exposure in fact caused the disease is not required. Bracke reached its result by concluding that (1) under Oregon law the claimant became disabled while working for the first employer and (2) after this disability, the subsequent exposures caused mere recurrences of symptoms without aggravating the underlying disability. Matter of Compensation of Bracke, 646 P.2d at 1330, 1336-37. In our case, analogous conclusions do not follow. First, under Arizona law, “disability” means “an earning capacity disability.” Alsbrooks v. Industrial Commission, 118 Ariz. 480, 578 P.2d 159 (1978). This definition is consistent with the bright-line majority rule. Larson, § 95.25(a) at 17-154. In the instant case, the evidence is uncontradicted that although claimant sought medical treatment beginning in 1978, she became disabled only after her exposure at Merrill. She therefore did not become disabled working for Fosgate while American was at risk. Second, the rule that a mere recurrence of symptoms does not shift liability is not directly applicable to claimant’s exposures after American was at risk. An initial disability triggers the recurrence rule: [W]hen disability has once resulted from occupational disease, a second disability occurring under a different carrier will be chargeable to the first carrier if it is a recurrence of the first disabilty. Larson § 95.27 at 17-171 to 172. Because “disability” means a loss of the ability to work, the triggering disability occurred after claimant’s exposures at Merrill. Even if we were to assume that exposures after sensitization that produce merely transitory symptoms would not shift liability from the employer and carrier at risk when sensitization occurred, cf. Hughes Aircraft Co. v. Industrial Commission, 129 Ariz. 233, 630 P.2d 56 (App.1981) (claimant became permanently sensitized to coolant oil and thereafter developed transitory dermatitis whenever exposed to it), this rule is inapplicable to the instant case. Dr. Clark distinguished the underlying sensitivity, the symptoms from exposure to the solder flux allergen, and the consequent damage to pulmonary function. Although he admitted that exposure after sensitization did not worsen the sensitization per se and that the exposures at Merrill did not worsen claimant’s symptoms, Dr. Clark repeatedly asserted that exposures subsequent to sensitization increased the risk of permanent lung damage. The administrative law judge misevaluated this testimony by ignoring these distinctions. He also mischaracterized this testimony as speculative. Dr. Clark speculated about the degree of damage from exposures subsequent to sensitization, not about the risk of damage from these exposures. Dr. Clark’s testimony therefore satisfied the last injurious exposure rule. In this context, Premier argues that proof of an actual worsening is necessary because the employment must proximately cause the disease. A.R.S. § 23-901.01(3). This proximate causation requirement is, however, consistent with the last injurious exposure rule. A claimant's employment as a whole must proximately cause the disease. Once the causation requirement is satisfied, the last injurious exposure rule applies to allocate liability. Moreover, Premier mistakenly relies on industrial injury cases. E.g. New Pueblo Constructors v. Industrial Commission, 115 Ariz. 236, 564 P.2d 925 (App.1977); Slayton v. Industrial Commission, 26 Ariz.App. 578, 550 P.2d 246 (1976); Montgomery Ward Co. v. Industrial Commission, 14 Ariz.App. 21, 480 P.2d 358 (1971). Because claimant’s injury is an occupational disease, A.R.S. § 23-901.02 determines the employer and carrier exclusively liable for it. See Phoenix Pest Control, 134 Ariz. at 219-20, 655 P.2d at 43-44. The administrative law judge also discounted Dr. Clark’s opinion because it was inconsistent with, his recommendation that claimant continue working despite her reaction to the exposures at Merrill. We find no inconsistency. Dr. Clark initially assumed he could medically manage claimant’s allergic reaction. Once it became apparent that he could not and therefore the danger of permanent pulmonary damage continued, Dr. Clark immediately recommended that claimant quit to avoid further exposures. Premier also argues that even if the administrative law judge misevaluated Dr. Clark’s testimony, it merely conflicted with the testimony of other experts. Assuming, without deciding, that the medical evidence conflicted, this conflict is not a basis for affirming the award. The administrative law judge has authority to resolve conflicting medical opinions, and this court will not substitute its judgment for his. See, e.g., Stephens v. Industrial Commission, 114 Ariz. 92, 559 P.2d 212 (App.1977). But this rule applies only if the administrative law judge accurately evaluates the conflicting opinions. Cf. State Compensation Fund v. Industrial Commission, 24 Ariz.App. 31, 535 P.2d 623 (1975) (award set aside because hearing officer ignored medical testimony that he mistakenly considered too speculative to support an award). The rule therefore does not apply here. For the foregoing reasons, exclusive liability for claimant’s occupational disease was erroneously imposed on Fosgate while American was at risk. Award set aside. EUBANK and KLEINSCHMIDT, JJ., concur. . Bracke apparently relied on an earlier edition. Both the petitioners and respondents completely ignore Larson’s discussion. . Even if the proximate causation requirement were to require proof that an exposure could have actually caused the disease, Dr. Clark’s testimony established that the exposure at Merrill could have actually caused sensitization and some worsening of pulmonary function.

OPINION JACOBSON, Chief Judge. The issues in this appeal are (1) whether the parties entered into an “installment contract” as defined in A.R.S. § 47-2612(A) , (2) whether the trial court’s instructions and evidentiary rulings on the measure of damages were correct and (3) whether prejudgment interest was properly awarded. Autonumerics, Inc. (Autonumerics) filed a complaint on April 28, 1977 for breach of contract against Bayer Industries, Inc. (Bayer); Bayer filed an answer and counterclaim for breach of warranties. The trial court granted Autonumerics’ second motion for partial summary judgment on the issue of Bayer’s liability for breach of contract. The counterclaim and the issue of damages were tried before a jury which rendered a verdict for Autonumerics in the sum of $116,570.00. Bayer filed a motion for new trial. On October 28, 1981, the trial court entered an amended judgment on the verdict, awarding prejudgment interest, attorney’s fees and costs and denying Bayer’s motion for new trial. Bayer then filed a timely notice of appeal. This litigation arose out of a contract entered into between Autonumerics as seller and Bayer as buyer for the sale of numerical controls for electronic equipment. This contractual agreement is set forth in several documents. Central to the issues on appeal is whether these documents constitute an “installment contract” within the meaning of § 2-612 of the Uniform Commercial Code (A.R.S. § 47-2612(A).) Bayer argues alternatively that the documents reflect that there was a contract for the purchase of two numerical controls or that there were issues of fact with respect to the intent of the parties which precluded summary judgment. Autonumerics argues that the documents are unambiguous and constitute an installment contract for the purchase of twenty-six numerical controls. THE RECORD FOR PURPOSES OF SUMMARY JUDGMENT The evidence before the trial court at the time summary judgment was granted discloses the following undisputed facts. Autonumerics and Bayer had been negotiating over Bayer’s purchase of numerical controls for incorporation into a milling machine manufactured by Bayer. Initially, Bayer was interested in purchasing only one or two controls but discovered it could receive a substantial discount if it purchased a larger number of controls. Bayer sent a written purchase order on its own stationery dated October 17, 1974 for a total of twenty-six controls. This document, purchase order number 3260, states that the order is for twenty-six basic systems and lists a per unit price for the components of each system and a twenty percent discount. It further provides that “if quantity exceeds fifty-one units in twelve month period,” a twenty-five percent discount would apply. The purchase order also contains the statement that it is subject to a five percent price increase on non-shipped items. Autonumerics responded with a written form acknowledgment to purchase order number 3260. The acknowledgment reiterates the quantity and the per unit component prices stated in purchase order 3260 and contains a quantity discount schedule which provides: NOTE: A quantity discount in accordance with the following schedule will apply to all units released for immediate shipment within one year. Delivery schedule: Quantity Price 1-5 list per above 6-25 list less 15% 26-50 list less 20% 51 & over list less 25% If the release quantity exceeds 50 units within the one year time period, a 25% discount shall apply to all units shipped. Bayer sent two other documents also entitled purchase orders, numbered respectively 3260-1 and 3260-2. Each called for release of a basic system control plus certain additional items at stated prices. Autonumerics responded to these documents with form acknowledgments. The acknowledgments set forth the discounts which Bayer would receive based on its volume order for twenty-six controls. One of the controls was constructed and shipped pursuant to Bayer’s instructions and Bayer received a discount of $5,070.00. However, Bayer refused to accept the second control which Autonumerics had already constructed, and refused to take any other controls. Initially, it was Autonumerics position that since Bayer had taken only one of the numerical controls during the twelve month period following the original order, it was not entitled to a volume discount. Thus, in December, 1975, Autonumerics sent an invoice to Bayer “back charging” it for the $5,070.00 discount which it had received on the first control. Bayer refused to pay this amount and in July of 1976, Autonumerics filed suit against Bayer in the state of New York for the amount of the discount. That action was subsequently dismissed for lack of jurisdiction and Autonumerics brought the instant action seeking damages for breach of a contract to purchase all 26 controls. SECOND MOTION FOR SUMMARY JUDGMENT Before considering the major issues involved in this appeal, we first address Bayer’s contention that Autonumerics’ second motion for summary judgment was a “horizontal appeal” and improperly considered by the trial judge. Autonumerics had filed a motion for partial summary judgment on December 19, 1977 before the Honorable Howard Peterson. Judge Peterson denied the motion. Autonumerics filed a second motion for partial summary judgment on August 25, 1980, approximately two and one-half years later. That motion was granted by Judge Cecil B. Patterson. Bayer argues that it was improper for Judge Patterson to grant the second motion for summary judgment, citing Chanay v. Chittenden, 115 Ariz. 32, 563 P.2d 287 (1977), in which our supreme court disapproved the practice of a trial judge redeciding a motion for summary judgment where no new discovery had taken place. Id. at 34, 563 P.2d at 289. See also Engineers v. Sharpe, 117 Ariz. 413, 573 P.2d 487 (1977). Bayer argues that the second motion for summary judgment presented nothing new except a reference to Bayer’s admission that until the lawsuit was filed it had not informed Autonumerics of its intention not to complete the purchase order. The parties had engaged in extensive discovery during the two and one-half year period between the first and second motions for summary judgment. The fact that both motions raised the same issues concerning interpretation of the contract documents did not make consideration of the second motion improper. While the two motions were similar, the second motion did raise new arguments demonstrating an absence of factual issues concerning abandonment of the contract. Given the long period of time between the filing of the motions, the extensive discovery conducted in the interim and the differences between the motions, the trial court did not err by ruling on the second motion. We turn therefore to the substance of this appeal. WAS THERE A CONTRACT? The first issue we must decide is whether Bayer’s purchase order number 3260 and Autonumerics’ acknowledgment of that purchase order constituted an “installment contract” for the sale of twenty-six basic system controls. Before discussing the legal issues raised, we pause to explain the concept of an “installment contract” as utilized by the Uniform Commercial Code. As discussed in 2 Anderson, Uniform Commercial Code, (2d Ed) § 2-612:4 at 278: An installment contract is one providing for the delivery of goods in lots and the separate acceptance of each lot as delivered. The Code employs the term installment with reference to any contract in performance of which the seller may make deliveries in parts or segments. Many installment contracts will contemplate a fixed pattern of delivery, such as the purchase of 100 tons of coal to be delivered in monthly installments of five tons each on the first working day of each month. The Code does not, however, limit the term installment contracts to such regular or repeating installment contracts, so that if the contract permits or requires the seller to deliver less than all of the goods at one time, the contract is to be classified as an installment contract, without regard to the inequality of the several shipments. In a nutshell then, the issue decided by the trial court on summary judgment was that the contract between Bayer and Autonumerics was an installment contract for the purchase of twenty-six controls, the breach of which allowed Autonumerics to seek damages for the lost profits from that total sale. Bayer, in response, contends that an installment contract, as so defined, was not entered into, or because of ambiguities in the contract documents themselves and factual disputes, this issue cannot be resolved by summary judgment. Whether a contract is ambiguous is initially a question of law for the court to decide. Watson Construction Co. v. Reppel Steel & Supply Co., 123 Ariz. 138, 598 P.2d 116, (App.1979); Slater v. Westland, 27 Ariz.App. 227, 553 P.2d 1212 (1976). Ambiguity is not established by the mere fact that the parties disagree as to the meaning of its terms. Giovanelli v. First Federal Savings and Loan Association, 120 Ariz. 577, 587 P.2d 763 (App.1978); Bekins Van Lines Co. v. Hartford Insurance Group, 27 Ariz.App. 655, 557 P.2d 1087 (1976). It is undisputed that both Bayer and Autonumerics are merchants as defined in A.R.S. § 47-2104 and that their transactions were governed by the Arizona's version of the Uniform Commercial Code, A.R.S. § 47-1101 et seq. On its face, Bayer’s purchase order number 3260 is a clear offer to purchase twenty-six basic control systems. Autonumerics’ form acknowledgment, although adding the discount schedule, is likewise clearly an acceptance of the order for twenty-six basic control systems at the agreed upon per unit price. It does not make acceptance conditional upon Bayer’s assent to the additional terms and therefore resulted in the formation of a contract. See A.R.S. § 47-2207. The contract provides for no definite delivery date but anticipates delivery of each control separately over a period of time. This is evidenced by the acknowledgment calling for shipping “as scheduled” and reference to discounts for units released for shipment within a one year period. The purchase order likewise references a discount for exceeding a quantity release in a twelve month period. Such a contract falls within the definition of an “installment contract” set forth in A.R.S. § 47-2612(A) which provides: An “installment contract” is one which requires or authorizes the delivery of goods in separate lots to be separately accepted, even though the contract contains a clause, “each delivery is a separate contract” or its equivalent. While conceding that its initial purchase order was for twenty-six controls, Bayer, nevertheless, asserts that there are numerous ambiguities in the contract documents in question which preclude the conclusion that an installment contract was formed. We consider each assertion separately. Bayer first contends that the discount schedule which is part of Autonumerics’ acknowledgment creates an ambiguity by indicating that Bayer might release as few as one or as many as over fifty numerical controls within one year. It argues that this is inconsistent with Autonumerics’ position that Bayer had contracted to purchase twenty-six numerical controls during the first year. It argues that had Autonu merics believed that Bayer was bound to purchase twenty-six controls during the first year, no discount schedule for any fewer than twenty-six controls would have been listed. We find this argument to be without merit. First, the question is not whether Bayer had agreed to purchase twenty-six numerical controls within one year. It is whether Bayer entered into a contract to purchase twenty-six numerical controls, period. The discount schedule is relevant only to the question of the discount Bayer was entitled to receive for each machine released within a one year period. The discount schedule does not attempt to add or alter the basic terms of Bayer’s offer conveyed in its purchase order. We find that the discount schedule creates no ambiguity with respect to whether a contract for the purchase of twenty-six control systems was executed. Bayer next alleges ambiguities concerning the optional items ordered in addition to the basic controls. It argues that purchase orders, numbers 3260-1 and 3260-2, were for the basic controls plus additional options and demonstrate that there had been no complete agreement as to the items being purchased. Again, this issue is not relevant to the enforceability of the underlying contract. Autonumerics had a contract to supply twenty-six basic controls to Bayer. If Bayer sought additional options on any of the basic controls, it could order them. The additional purchase orders indicate that Bayer was requesting delivery of two of the basic controls for which it had already contracted along with certain additional optional items. We conclude that the later purchase orders create no ambiguity with respect to the initial order. They simply identify a time for delivery and request additional items. Bayer next argues that the documents do not expressly define the available discounts as OEM, (“original equipment manufacturer discounts”), quantity discounts or quantity OEM discounts. Deposition testimony before the trial court indicated a difference of opinion with respect to the parties’ understandings of the nature of the discount. Again, however, we do not find this relevant to whether Bayer had contracted to purchase twenty-six controls. The issue of the proper discount price went to the jury as part of the issue of damages, i.e., was Bayer entitled to the $5070.00 discount on the first machine irrespective of the number of machines accepted. Bayer also argues that the absence of a delivery date in purchase order 3260 and the acknowledgment create an ambiguity that is fatal to contract formation. However, the Code provides that open terms in a contract do not necessarily render the contract unenforceable. A.R.S. § 47-2204(C) provides: Even though one or more terms are left open, a contract for sale does not fail for indefiniteness if the parties have intended to make the contract and there is a reasonably certain basis for giving an appropriate remedy. The Code further provides that in the absence of a specific time for shipment or delivery, a reasonable time will be implied. A.R.S. § 47-2309(A) states: The time for shipment or delivery or any other action under a contract if not provided in this chapter or agreed upon shall be a reasonable time. Bayer’s next argument is that the merger clause printed on the back of Autonumerics’ acknowledgments to purchase orders 3260, 3260-1 and 3260-2 releases Bayer from any prior contractual obligation. The merger clause in question states: This Purchase Order becomes a binding contract upon the terms and conditions set forth herein when it is accepted either by acknowledgment or by performance. The terms set forth herein constitute the entire agreement and supersedes all previous verbal or written representations, agreements and conditions. (Emphasis added.) Autonumerics’ response is that the printed language on the back of its acknowledgment was the result of a printing error and was intended to be placed on the back of its purchase order form rather than its acknowledgment form. However, Autonumerics argues that even if it is to be held to its printer’s mistake, which might be a factual issue, the merger clause in question should be read together with the rest of the acknowledgment document to mean that it supersedes any agreement relating to the specific terms mentioned on the face of the acknowledgment. In this case, the acknowledgments to purchase orders 3260-1 and 3260-2 supersede purchase order 3260 only to the extent that they acknowledge that two of the numerical controls will be manufactured with certain options. Any agreement must be construed as a whole, and each part must be read in light of all other parts. C & T Land and Development Co. v. Bushnell, 106 Ariz. 21, 470 P.2d 102, 103 (1970); Brisco v. Meritplan Ins. Co., 132 Ariz. 72, 643 P.2d 1042, (App.1982). Where there is inconsistency in a contract, specific provisions qualify the meaning of general provisions. Brisco, supra at 75, 643 P.2d at 1045. On the face of the instrument, Autonumerics’ acknowledged the existence of purchase orders 3260, 3260-1 and 3260-2, and expressly confirmed respectively, a purchase order for twenty-six numerical controls, and releases for two of those controls. The acknowledgments confirm receipt of purchase orders; nothing on the face of the acknowledgments purports to be a purchase order to which the printed material on the back of the instrument might have reference. Where the written provisions of a contract are inconsistent with printed provisions, the written matter must prevail. Wilhorn Builders, Inc. v. Cortaro Management Co., 82 Ariz. 48, 308 P.2d 251, (1957); Babbitt Brothers Trading Co. v. Marley, 28 Ariz. 589, 238 P. 392, (1925). Thus, while the printed form on the back says “this purchase order”, it is nevertheless according to its face not a purchase order, but rather a confirmation of a purchase order. However, even if the printed merger clause were to be construed as being applicable to this transaction, we find that the only reasonable interpretation of that clause when read in the context of the entire contract is that it superseded purchase order 3260 only to the extent that it acknowledged that two of the numerical controls would be manufactured with certain options set forth in purchase orders 3260-1 and 3260-2. Bayer next argues that the lack of a release for the other twenty-four numerical controls which it had ordered invalidates the contract. Apparently, Bayer is arguing that because Autonumerics did not start manufacturing the other twenty-four units and could not do so until Bayer informed it of the special options which were desired, each release must constitute a separate contract and no contract was formed until each release was received. However, as previously discussed, A.R.S. § 47-2309 expressly provides that the absence of a delivery or release date will not affect the existence of the contract. The fact that Autonumerics waited to commence manufacturing until being informed of a desired delivery date and desired optional items does not invalidate the original contract nor does it impair the enforceability of that installment contract. By definition, an installment contract contemplates the delivery of goods in separate lots to be separately accepted. See A.R.S. § 47-2612. Bayer’s final alleged ambiguity is the fact that there was a provision for a price increase in purchase order 3260. Bayer’s general position is that this provision for a five percent price increase in non-shipped items indicates that it was not firmly committed to buy all twenty-six basic control units, at least not all within one year. However, in order for a contract to be enforceable pursuant to the Code, every possible term or contingency need not be delineated. The official comment to U.C.C. § 2-201 (A.R.S. § 47-2201) provides: The only term which must appear is the quantity term which need not be accurately stated but recovery is limited to the amount stated. The price, time and place of payment or delivery, the general quality of the goods, or any particular warranties may all be omitted. Special emphasis must be placed on the permissibility of omitting the price term in view of the insistence of some courts on the expressed inclusion of this term____ In many valid contracts for sale, the parties do not mention the price in express terms____ Only three definite and invariable requirements as to the memorandum are made by this subsection. First, it must evidence a contract for the sale of goods; second, it must be signed, a word which includes any authentication which identifies the party to be charged; and third, it must specify a quantity. Bayer has devoted a substantial portion of its brief to a discussion of Jaeco Pump Co. v. Inject-O-Meter Manufacturing Co., 467 F.2d 317 (10th Cir.1972), to support its contention that summary judgment was improper in this case. It argues that under factually similar circumstances, the United States Tenth Circuit Court of Appeals found that ambiguities made summary judgment improper. In Jaeco, the buyer sent the seller a document entitled “purchase order” which provided for the release of certain identified pumps on specified dates. The purchase order did not refer to a total number of pumps to be purchased. Rather, it identified the type of pump and indicated that 100 were to arrive on a specific date and stated “estimated releases” for 600 other pumps. The purchase order further indicated that the buyer would subsequently confirm the release dates. The buyer moved to dismiss the complaint and later for a directed verdict on grounds that the contract was an unambiguous order for only 100 pumps. The trial court permitted the issue of whether an installment contract was entered into to go to the jury. In affirming the trial court’s decision to permit the interpretation of the contract to go to the jury, the appellate court ruled that in view of the “extreme differences of opinion” as to what the agreement actually purported to mean, the court did not err in submitting the question of the existence of an installment contract to the jury. Unlike the purchase order in the instant case, the purchase order in Jaeco did not refer to a total number of pumps to be purchased. Rather, it provided for a definite time to release 100 pumps and estimated releases on the balance. While the facts in Jaeco and the instant case are similar, we find significant differences between the documents interpreted in the respective cases. Therefore, we find that, while instructive, Jaeco is not determinative of this appeal. Finally, we recognize that Bayer has cited numerous cases which allegedly support its contention that the written documents in issue did not constitute an installment contract. Rather than discussing each case individually, we note that most are not relevant to the issues of this case; several were decided before the adoption of the Uniform Commercial Code in their respective jurisdictions; some do not involve the sale of separate goods in separate lots; and others were not governed by the Code. We address only two cases, Nederlandse Draadindustrie NDI B. V. v. Grand Pre-Stressed Corp., 466 F.Supp. 846 (E.D.N.Y.) aff’d, 614 F.2d 1289 (2d Cir.1979) and Candalaus Chicago Inc. v. Evans Mill Supply Co., 51 Ill.App.3d 38, 9 Ill.Dec. 62, 366 N.E.2d 319 (1977), heavily relied upon by Bayer. Bayer argues that the instant case, like Nederlandse and Candalaus, involves a “divisible” rather than a “entire” contract. However, Bayer fails to recognize that the distinction between “entire” and “divisible” contracts is meaningful under the Code only in connection with the question of acceptance and rejection of deliveries under the contract. This distinction is not relevant to the existence or non-existence of a “installment contract” pursuant to A.R.S. § 47-2612. The Uniform Commercial Code does not deal with instalment contracts in the sense of such contracts being ‘entire’ or ‘divisible.’ Instead, the Code merely gives the buyer certain rights where a delivered instalment is nonconforming, but does not ordinarily permit a buyer to cancel a contract where an instalment is nonconforming. However, the Code permits the buyer to consider the whole contract as breached where a non-conformity or default with respect to one or more instalments ‘substantially impairs the value of the whole contract.’ 67 Am.Jur.2d Sales § 157 at 274 (1973). See also J. White & R. Summers, Uniform Commercial Code § 8-3 at 258-260 (1972). In Nederlandse, an action was brought by a manufacturer of steel strand against a manufacturer of pre-stressed concrete for breach of a written contract for the sale of the steel strand to be delivered over a period of time. Thus, the court was faced with an installment contract covered by the terms of the code. While recognizing the applicability of the Code to most of the issues raised in the case, the court nevertheless, and in our opinion erroneously, discussed the distinction between divisible and indivisible contracts. The court concluded that the contract was entire but failed to recognize the Code’s elimination of the divisible/indivisible distinction in sales cases. Bayer argues that the factors leading the Nederlandse court to find the contract indivisible are absent in the instant case. However, aside from the erroneous legal distinctions drawn, Nederlandse involved a contract held to be ambiguous which resulted in factual findings that are far more comprehensive than the record in this appeal. The check-list approach used by Bayer in comparing the two cases is not persuasive in interpreting the provisions of the purchase order and acknowledgment in the instant case. Candalaus involved a paper products manufacturer who sold various sorts of boxes to a distributor. The relationship between the two parties was a continuing one with the distributor periodically purchasing boxes over a period in excess of two years. The parties did not enter into a written contract or even send purchase orders in connection with the transactions. The distributor would simply telephone the manufacturer and order various quantities of its product. The dealings between the parties would probably be characterized as a series of purchases on an open account. No installment contract was involved. The court did not address the installment contract provisions of the Code. Both parties analyzed their cases in terms of pre-code concepts of divisible or indivisible contracts. Candalaus is simply not applicable to the instant case because it did not involve an installment contract. Having reviewed purchase order 3260 and Autonumerics’ acknowledgment to that order, we conclude that the trial court correctly found that these documents constituted an unambiguous writing establishing an installment contract for the sale of twenty-six basic numerical control systems. DAMAGES The controversy over damages centers upon which section of A.R.S. § 47-2708 (U.C.C. § 2-708) applies in this case. This statute provides: A. Subject to subsection B and to the provisions of this chapter with respect to proof of market price (§ 47-2723), the measure of damages for non-acceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this article (§ 47-2710), but less expenses saved in consequence of the buyer’s breach. B. If the measure of damages provided in subsection A of this section is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this article (§ 47-2710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale. The trial court submitted to the jury only damages under subsection B of this statute. Bayer argues that the trial court erred in applying section B damages and also erred in excluding alleged evidence of the market price of the basic numerical control systems which it contends would be admissible under section A. In our opinion, the evidence presented does not support Bayer’s contentions. There was extensive testimony that Autonumerics could not be adequately compensated by subsection A damages for basically two reasons. First, there was testimony that the damages were based on lost volume, that is, Autonumerics manufacturing capacity was such that it would have been able to supply all its customers and meet Bayer's order for twenty-six controls. Even if Autonumerics had manufactured all twenty-six units and sold to other customers the twenty-five units not accepted by Bayer, it would not have been required as a matter of law to deduct such proceeds from damages caused by Bayer’s wrongful refusal. As stated in Teradyne, Inc. v. Teledyne Industries, Inc., 676 F.2d 865, 868 (1st Cir.1982), in interpreting U.C.C. § 2-708(2) [A.R.S. § 47-2708]; [I]n light of the statutory history of the subsection, it is universally agreed that in a case where after the buyer’s default a seller resells the goods, the proceeds of the resale are not to be credited to the buyer if the seller is a lost volume seller-that is, one who had there been no breach by the buyer, could and would have had the benefit of both the original contract and the resale contract. See also Famous Knitwear Corp. v. Drug Fair Inc., 493 F.2d 251 (4th Cir.1974); Snyder v. Herbert Greenbaum & Associates Inc., 38 Md.App. 144, 380 A.2d 618 (1977). See generally, J. White and R. Summers, supra § 7-13 at 235-237. Secondly, there was testimony that there were no other customers for the basic control systems ordered by Bayer, that is, the controls were unique to Bayer’s needs. There was also evidence that Autonumerics never maintained an inventory of numerical controls because it would have been economically unwise to build a unit on the assumption that there might be purchaser. Controls were built to specific orders following receipt of an order for a specific control which normally came from its network of distributors. In short, Autonumerics argued that there was no market for the control systems ordered, but not taken by Bayer. The absence of such a market would likewise make subsection A damages inapplicable. As stated by the Alabama Supreme Court in Neumiller Farms, Inc. v. Cornett, 368 So.2d 272, 275 (Ala.1979): It is implicit within this provision [U.C.C. 2-708], however, that, in order to employ the damage formula of subsection (1), there must not only exist a market for the contracted goods but also the aggrieved seller must have a legal obligation to enter that market in his effort to avoid the foreseeable adverse consequences of buyer’s breach of contract. Unless there is both a market and an obligation to enter it, the subsection (1) measure of damages is functionally inadequate and the aggrieved seller may seek redress through application of the measure of damages provided in subsection (2). Accord Anchorage Centennial Development Co. v. Van Wormer & Rodrigues, Inc., 443 P.2d 596 (Alaska 1968); Cesco Manufacturing Corp. v. Norcross, Inc., 7 Mass.App.Ct. 837, 391 N.E.2d 270 (1979); Timber Access Industries Co. v. U.S. Plywood-Champion Papers, Inc., 263 Or. 509, 503 P.2d 482 (1972); Copymate Marketing Ltd. v. Modem Merchandising, Inc., 34 Wash.App. 300, 660 P.2d 332 (1983). However, Bayer claims that it was denied the opportunity to prove the market price of the goods when the trial court excluded several exhibits as evidence. However, our review of this evidence [Exs. 46, 65, 66, 67, 68] reveals that these exhibits demonstrated prices on what Bayer deemed to be comparable goods. Moreover, the excluded exhibits, did not demonstrate the existence of buyers for Autonumerics’ basic controls. In essence, they were arguably relevant to market price, but not the existence of a market. Testimony was permitted with respect to whether Autonumerics could have found buyers for the control systems at issue. We find no error in the trial court’s exclusion of the exhibits in question. Finally Bayer argues that the trial court erred in instructing the jury on damages. We find no error. In so concluding, we recognize the general principle that in determining whether an instruction should be given, the evidence must be viewed in the strongest possible light to the party requesting the instruction. Starr v. Campos, 134 Ariz. 254, 655 P.2d 794 (App.1982). Nevertheless, we find that Bayer’s proposed jury instructions were properly rejected. The requested instructions related to mitigation of damages and provided: If you find that Autonumerics was in fact damaged by Bayer’s not taking the rest of the controls, and if you find that there was a market for the rest of the controls in 1975, then the difference between the contract price to Bayer and the market price shall be the measure of damages, less any expenses saved by Autonumerics because of Bayer’s not taking the rest of the controls. You are instructed that Autonumerics cannot recover for losses that Autonumerics could reasonably have avoided. Autonumerics had the duty to take reasonable steps to mitigate or lessen any damages that Autonumerics claims to have suffered. Thus, if Autonumerics was damaged by the failure of Bayer Industries to take the other controls, it must appear that Autonumerics took reasonable steps to mitigate or lessen the damages that it claims to have suffered. Accordingly, if a market existed for the controls which Bayer Industries did not take and such market fairly was or fairly appeared to have been within reason at the time, then Autonumerics had a duty to try to sell in that market the controls that Bayer Industries did not take. One of the instructions that was given by the trial court on the issue of damages was as follows: If Autonumerics did not have the productive capacity to manufacture the rest of the controls, and, in addition, supply the rest of the demand for its controls, then you shall find for Bayer and against Autonumerics and assess no damages against Bayer for lost profits. (Emphasis added.) As previously discussed, if Autonumerics could demonstrate that it had lost volume because of Bayer’s repudiation, it was not required to mitigate damages in the sense of selling these products to others. The court’s instruction put Autonumerics in the position of having to prove and convince the jury that it had the capacity to produce the additional twenty-five controls and thus was a lost volume seller. If it failed in this position, the jury was instructed to find that Autonumerics was not entitled to any damages. Under this all or nothing approach, if Autonumerics proved it was a lost volume seller, mitigation (in the sense of resale) was immaterial. If it failed in such proof, no damages were collectible and mitigation again becomes immaterial. Bayer is simply not harmed by the trial court’s refusal to give Bayer’s proposed instructions which would have provided an alternative theory of recovery to Autonumerics. PREJUDGMENT INTEREST Bayer’s final argument is that Autonumerics should not have been awarded pre-judgment interest on its claim. The general rule in Arizona is that a plaintiff is entitled to an award of pre-judgment interest on a liquidated claim. A claim is liquidated if the evidence furnishes data which, if believed, makes it possible to compute the amount with exactness, without reliance upon opinion or discretion. Arizona Title Insurance & Trust Co. v. O’Malley Lumber Co., 14 Ariz.App. 486, 496, 484 P.2d 639, 649 (1971). See also In Re Estes’ Estate, 134 Ariz. 70, 654 P.2d 4 (App.1982). Bayer argues that the evidence in this case demonstrates that it was not possible to compute the amount of damages for lost profits with exactness without reliance upon opinion or discretion. A.R.S. § 47-2708(B) provides for lost profits calculated both as net profits and the inclusion of “reasonable overhead.” There were substantial disputes with respect to what constituted reasonable overhead and what items were properly attributable to the cost of producing the items in question. Under these circumstances, we agree that opinion testimony and discretionary judgments were involved in that determination. Therefore, the damages for lost profits were not liquidated. We remand this matter to the trial court for modification of the judgment by deletion of pre-judgment interest in accordance with this opinion. In this appeal, Autonumerics has requested attorneys’ fees pursuant to Rule 21(c), Arizona Rules of Civil Appellate Procedure. In its discretion, this court denies an award of attorney’s fees. MEYERSON, P.J., and OGG, J., concur. The provisions of the Uniform Commercial Code cited herein conform to the Revised Numbering System pursuant to House Bill 2415, 1984 Legislative Service, 2nd Reg. Sess., Ch. 77. . A.R.S. § 47-2104(A) provides: Merchant means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practice or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill. . A.R.S. § 47-2207 provides in part: A. A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms. B. The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: 1. The offer expressly limits acceptance to the terms of the offer; 2. They materially alter it; or 3. Notification of objection to them has already been given or is given within a reasonable time after notice of them is received. . Objections were made to these exhibits on the basis of relevancy as well as to the fact that no market existed for the control systems in question and that Autonumerics sought damages on the basis of lost volume. The trial court deferred ruling on these objections based on relevancy until it determined whether Autonumerics was entitled to recovery pursuant to subsection A or subsection B. We note there was substantial question concerning whether these exhibits reflected prices for comparable products in comparable markets.

OPINION JACOBSON, Chief Judge. In both of these cases, individuals were arrested for driving under the influence of intoxicating liquor and were advised that failure to submit to an intoxication test would result in the suspension of their respective licenses under the implied consent statute, A.R.S. § 28-691(B). Both refused to submit to the test. However, neither was advised that he or she had a right to have a second sample of the test taken and preserved in accordance with the Supreme Court’s decision in Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1979). The question presented in these consolidated appeals is whether the failure to advise of the Baca rights precludes a subsequent suspension of their drivers’ licenses under the implied consent statute. Both appeals arise out of a judicial review of decisions by the Assistant Director of Motor Vehicles, ordering suspension of the licenses involved. However, different divisions of the Maricopa County Superior Court reached different legal conclusions on the issue presented. In White v. State, 1 CA-CIV 6756, the trial court affirmed the suspension. In Morton v. State, 1 CA-CIV 6840, the trial court reversed the order of suspension and reinstated the driving privileges. Because of these conflicting rulings, the parties sought, and this court granted, consolidation of these appeals to resolve the conflict. Both of the license suspensions before the Superintendent were authorized under A.R.S. § 28-691, which provides that “any person who operates a motor vehicle within this state gives consent ... to a test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood ...” A.R.S. § 28-691(A). The penalty for refusing to submit to the requested test is suspension of driving privileges upon a finding that: a law enforcement officer had reasonable grounds to believe the person had been driving ... a motor vehicle within this state while under the influence of intoxicating liquor ... [2] the person was placed under arrest, and [3] he refused to submit to the test____ A.R.S. § 28-691(E) The statute also provides that the suspected offender must be requested to take the test and “be informed that his license or permit to drive will be suspended or denied if he refuses to submit to the test.” A.R.S. § 28-691(B) No other statutory requirements are necessary to authorize the suspension and there is no contention in either of these cases that these statutory prerequisites were not met. Rather, the contention is made that in addition to the statutory requirements for suspension the arresting officer must also advise the suspected offender of the right to have a second test performed and the sample preserved in accordance with Baca v. Smith, supra. We disagree. Baca arose out of a criminal prosecution for driving under the influence in violation of A.R.S. § 28-692(A). At issue was whether a criminal defendant had a due process right to obtain a sample of his breath (upon which his guilt or innocence would be determined) for independent testing to prove his innocence. The court found such a due process right and held: [T]he right to test incriminating evidence where the evidence is completely destroyed by testing becomes all the more important because the defense has little or no recourse to alternative scientific means of contesting the test results, and, therefore, when requested, the police must take and preserve a separate sample for the suspect by means of a field collection unit. 124 Ariz. at 356, 604 P.2d 617. The court then embarked upon an analysis of whether a second sample must be taken and preserved in every DWI case. The court concluded this was not necessary and that where no request to take a second sample was made, a waiver of taking and preservation occurred. However, to allow an intelligent exercise of that waiver “the suspect shall be told that the intoximeter sample will be preserved for seven days for delivery to him or his agent and thereafter it will be destroyed____” (Emphasis added). 124 Ariz. at 357, 604 P.2d 617. As can be seen, the Baca advice deals not with whether a suspect can make an informed decision to take or refuse a test, but rather with whether an intelligent waiver of the right to preserve evidence germane to a criminal prosecution occurred. Moreover, the due process right recognized in Baca rises out of a criminal proceeding. A suspension occurring under A.R.S. § 28-691 is civil in nature, not criminal. Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971). However, the trial court in Morton v. State concluded that Baca advice was necessary in a suspension proceeding as a “natural extension” of that case, relying on Connolly v. State, 79 Wash.2d 500, 487 P.2d 1050 (1971) and Couch v. Rice, 23 Ohio App.2d 160, 261 N.E.2d 187 (1970). We believe that such reliance is misplaced. The decision in Connolly, supra, was based on the following Washington statute: R.C.W.A. 46-20-308 (Implied Consent) The officer shall inform the person of his or her right to refuse the test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in R.C.W. §46-61.506. The officer shall warn the driver that (a) his or her privilege to drive will be revoked or denied if he or she refuses to submit to the test____(emphasis added) The Connolly court found the statute clear and unambiguous, therefore such an advisement was required. Connolly, supra, 487 P.2d at 1051. However, A.R.S. § 28-691 contains no such statutory mandate. Also, in view of subsequent Ohio Supreme Court decisions, we doubt that Couch v. Rice, supra, relied upon by the trial court, is still the law in Ohio. See, State v. Myers, 26 Ohio St.2d 190, 271 N.E.2d 245 (1971); State v. Mohr, 26 Ohio St.2d 204, 271 N.E.2d 254 (1971). The argument is advanced that if the Baca advice were given, drunk driving suspects would be better informed so that they could intelligently exercise their right of refusal. First, we are not convinced that this information over and above the clear options provided by the statute — either take the test or suffer the consequences of suspension — contributes to an informed choice. Second, and most importantly, the legislature has determined what it perceives to be the prerequisite for controlling the utilization of this state’s highways by persons allegedly driving under the influence of intoxicating liquor. The judiciary should not, on a subject over which reasonable persons may differ, add to a statute that which the legislature deemed unnecessary. See Padilla v. Industrial Commission, 113 Ariz. 104, 546 P.2d 1135 (1976). We therefore hold that failure to give the advice required by Baca does not prohibit the suspension of driving privileges under A.R.S. § 28-691. For the foregoing reasons, the judgment in 1 CA-CIV 6756, is affirmed and the stay previously entered is quashed. The judgment in 1 CA-CIV 6840 is reversed and the matter is remanded with instructions to reinstate the decision of the Assistant Director. EUBANK, P.J., and OGG, JJ., concur. . We are not unmindful of other jurisdictions which have held that under their implied consent status, a driver must be advised of the right to independent testing. Perano v. State, 250 Ga. 704, 300 S.E.2d 668 (1983); State, Dept. of Public Safety v. Wiehle, 287 N.W.2d 416 (Minn.1979). However, their implied consent statutes, as the State of Washington, have language in the statutes mandating that the advice be given. . We note, in a similar vein, this court has recently rejected, in a suspension setting, the requirement that upon a refusal to take a test, the state is required to prove the validity of that test. Holloway v. Martin, 143 Ariz. 317, 693 P.2d 966 (1984).

JENCKES, Superior Judge. Action under Employers’ Liability Act (chapter 6, title 14, Rev. Stats. 1913) for death of plaintiff’s intestate, Louis B. Naylor. Judgment for plaintiff upon the verdict of a jury for $10,000, and defendant appeals. The single assignment of error is that the trial court erred in denying appellant’s motion for a directed verdict at the conclusion of all the evidence, based upon the ground that the plaintiff had failed to show that the accident which resulted in the death of decedent was not caused by decedent’s negligence. The burden of so showing is upon the plaintiff. Southwest Cotton Co. v. Ryan, 22 Ariz. 520, 199 Pac. 127. The following are the undisputed facts in the case: On the evening of May 14, 1918, the-decedent, Louis B. Naylor, and six other workmen were employed under the direct supervision of one William R. Gibson, chief electrician of the defendant company, in the installation of a certain switchboard at the junction shaft upon defendant’s property. The lines upon which they were working and all metal framework and piping had been grounded, and all live wires connected with the work in any way were heavily insulated, making it impossible for injury to result from contact therewith. The only point at which contact could possibly have been made with the electric cur rent was at a certain fuse terminal about one inch long, and to afford as great a measure of protection at that point, the chief electrician Gibson, had covered the terminal with a board, making it impossible for anyone to come in contact with the current there without deliberately and designedly inserting his hand or fingers behind the board. At the time of the accident, Naylor and Gibson were collaborating in the bending of a piece of insulated wire about fourteen inches long, which they held in their hands, and which was not connected or touching any part of the work, but which they intended to incorporate therein when bent to the desired shape. Naylor was sitting upon a wooden plank elevated about three feet from the ground, with his back to the switchboard, and twenty to twenty-four inches away from it. The fuse terminal was situated in the switchboard at a point six to ten inches higher than his shoulders and in line with a point between the end of his left shoulder and the middle of his back. To touch the- fuse terminal, he would have had to turn his body partly around, reach up six to ten inches with his hand, and feel around down behind the board covering the terminal. Gibson was standing upon the ground immediately in front of Naylor, facing him, with his head just a little bit below Naylor’s head. The hands of both men were holding the wire which they were bending. Gibson’s eyes were directed toward the wire, and decedent’s hands were within the range of his vision. While they were in this position, bending the wire, there came a blinding “flash and crash and then another flash,” caused by the electricity. Naylor dropped the wire. The electricity in some manner killed him. Gibson was the only witness testifying to the facts and circumstances attending the accident. He testified first for the plaintiff and later for the defendant; his testimony being substantially the same both times. He stated that he did not know of any way decedent could have come in contact with the electric current except by deliberately and designedly reaching around and placing his hand upon the fuse terminal. Appellant argues, therefore, that the only legitimate inference from his testimony is that decedent did do so. But the facts in evidence do not admit of such an inference. Gibson did not see the decedent touch the fuse terminal or make any movement toward it. In fact, what happened immediately preceding and at the instant of the accident, and just what decedent was doing at the time, are shown unmistakably by Gibson’s testimony. That he was not in the act of placing his hand upon the fuse terminal, and could not have been doing so, clearly appears therefrom. We do not think this would have been made more clearly to appear if Gibson had testified unequivocally he did not touch the fuse terminal. To be sure the direct question, Did decedent touch the fuse terminal? was never propounded to him, but he was asked, “Did you see either one of his hands in back of the switchboard prior to the explosion?” And, again, “You didn’t see him touch it [the fuse terminal]?” To both of which questions he answered, “No!” As Gibson was in a position with relation to the deceased where such a movement, if made, must have been observed by him, the inference to be drawn from his testimony is not that for which appellant contends. But appellant argues further that, even if it be true that the facts of the case do not admit of such inference, nevertheless; as it does not appear from the facts just how the accident happened, that is to say, because the precise manner in which the electricity was conducted to decedent’s body is not apparent from the evidence, it has not been shown, either that decedent was or was not negligent; that consequently plaintiff has. not sustained the burden of proving affirmatively that the injury was not due to decedent’s negligence. This presents for determination the question: How far must the plaintiff go, in an action under our Employers’ Liability Act, to sustain the burden of proof resting upon him to show that “the injuries were not caused by the negligence of the person killed or injured?” The requirements of the situation are in a measure analogous to those exacted of one seeking recovery in the common-law action for negligence in those jurisdictions where the burden of proof is cast upon the plaintiff to show lack of contributory negligence. We are therefore warranted in examining the decisions of the courts of such jurisdictions to ascertain the extent to which a plaintiff bringing that character of action must go in that respect. Appellant has cited us to a number of decisions of those courts, and we have examined many others as well. We find that there is a sharp division of opinion as to what the plaintiff must do in the matter of introducing evidence to sustain the burden of proof and to require the submission of the question to the jury. The decisions of the courts of New York are representative of one group, which holds that if there is no evidence one way or the other on the question of contributory negligence, plaintiff is not entitled to have that question submitted to the jury. The burden of showing that plaintiff’s intestate was free from contributory negligence rests upon the plaintiff. “When there is neither direct nor circumstantial evidence which points either to the presence or absence of contributory negligence, the plaintiff cannot recover without some affirmative evidence to show that the decedent was not guilty of contributory negligence.” Scialo v. Steffens, 105 App. Div. 592, 94 N. Y. Supp. 305; note 10 Ann. Cas. 9, and other cases therein cited. The Massachusetts decisions are typical of those of the other group which holds that plaintiff need not show as a distinct affirmative proposition that he was in the exercise of dne care at the time pf the injury. “If all the circumstances under which the injury was received were proved, and the evidence excluded fault on the part of the plaintiff, and there was nothing in the conduct of the plaintiff, either of acts or of neglect, to which the injury might be attributed in whole or in part, due care might be inferred from the absence of all appearance of fault.” Hilton v. City of Boston, 171 Mass. 478, 51 N. E. 114; note, 10 Ann. Cas. 9, and other cases therein cited. We adopt the rule exemplified by the Massachusetts decisions as representing the weight of authority, rather than the New York rule, in so far as it may be applied to causes arising under our Employers’ Liability Act. Therefore, in such actions, when the plaintiff attempts to prove freedom from negligence on the part of the person killed or injured in order to show that the injuries complained of were not caused by the negligence of such person, if the facts and circumstances under which the injuries were sustained, being sufficiently shown, exclude conduct on the part of the person killed or injured, either of acts or of neglect, to which the injuries might be attributed, then the plaintiff is entitled to have the question of negligence submitted to the jury. The facts attending the injury sustained in this case were, we think, sufficiently proven. The entire situation is disclosed with remarkable clearness. To be sure, the exact way in which the current of electricity reached decedent’s body is not shown, and perhaps is not known and may never be known by anyone. But it is shown that it was not conducted thereto in the only way which the witness Gibson could conceive of. That such was the only manner in which decedent could have come in contact with the current through any negligent act of his own we think is fairly infer-able from the evidence. Any movement on his part, other than reaching up and touching the fuse termi nal, would not have constituted negligence, because, as we have seen, everything else within his reach had been heavily insulated or grounded so that it could be safely handled by the workmen. Thus the plaintiff has brought himself within the rule here laid down by sufficiently showing facts and circumstances which exclude conduct on the part of the decedent to which the injuries might he attributed, and the cause was properly submitted to the jury. The judgment is affirmed. ROSS, C. J., and BOLLINGER, Superior Judge, concur. Note. — MoALISTER and FLANIGAN, JJ., being disqualified, took no part in the decision of this cause.

FLANIGAN, J. (After Stating the Facts as Above.) — Appellant’s attack upon the judgment is based upon the propositions: (1) That the oral agreement between the appellant and his wife was actually executed by the delivery of the deed of the town-site trustee, issued at the instance of the wife, which, it is said, carried out and fully performed the agreements of the parties, so that the statute no longer applies; and (2) that the property “under this special arrangement entered the marital community as the separate property of John Wilson, and under and by virtue of the agreement made between the husband and wife based on the consideration of $3,500 expended by the husband from his separate funds on the separate property of the wife.” It is conceded that the Morley Avenue property was in the lifetime of the wife her separate property, which, upon her death, descended to her lawful heirs. The consideration for the original transfer of the right of possession in and to the Elm Street property, and the cost of the improvements thereon, were paid for with moneys earned by the husband during* the marriage. There is no testimony to show who paid the purchase price for the conveyance of the title from the town-site trustee under the United States patent, and we must therefore presume that this consideration was paid with community funds. Under these facts, and the presumption of law that “all property found in the name or possession of either spouse during the marriage is prima facie common” (McKay on Community Property, § 255, and cases cited), there can be no doubt that the Elm Street property was to be deemed the community property of the spouses. It therefore follows that, at the time of the issuance of the town-site deed, if not before, Mrs. Wilson acquired and became vested with a community interest in the Elm Street property which would pass to her heirs as an estate of inheritance (Estate of Wilson, supra), unless she had been divested of her title thereto in some manner recognized by law as competent to effect such divestiture. There is no suggestion in the argument of counsel for appellant, nor in the testimony of any involuntary alienation of decedent’s interest in the property under the operation of an estoppel or otherwise. It must therefore. be taken as conceded, and rightly so, that, if the title and ownership of the deceased wife in the property is to be considered as having been at any time transferred to the appellant, such result is to be predicated upon some voluntary alienation made by her. The contention that the issuance of the deed by the town-site trustee, at the procurement of the wife, and its recordation in the office of the county recorder of Santa Cruz county, Arizona, executed the agreement so as to take the transaction out of the statute, is not tenable. Assuming the agreement to have been that the conveyance so made should vest the entire estate in appellant, it cannot be given effect under the stat ute, which prescribes a different method for a present transfer, in the absence at least of circumstances creating an equitable estate of such character as would justify a court in decreeing the transfer of the outstanding legal title. Conceding the strong moral foundation for appellant’s claim to the property, there is no showing of any basis for equitable relief of the character referred to. It is likewise apparent that the facts do not warrant the conclusion that the property ever was the separate estate of appellant, as the entire consideration therefor was paid out of community assets. The case is simply that the deceased wife never declared any conveyance of her interest in the property by an instrument in writing subscribed and delivered by her, or by her agent thereunto authorized by writing, and, as the estate of the decedent was an estate of inheritance of which she could voluntarily divest herself only by a conveyance made in accordance with the statute, this property upon her death, descended to her lawful heir, the appellee. This conclusion is in accordance with the decision of the Supreme Court of Washington in the case of Graves v. Graves, 48 Wash. 664, 94 Pac. 481, a case much like the one at bar, construing and applying a section of the statute of frauds similar in effect to our own. The court in that case, holding against the contention of the husband, said: “It was_ not claimed by the respondent that there was any written agreement, or that any of their property was passed by deed from one to the other, and it is conceded that the property in dispute was acquired and improved by community funds earned after marriage. The statute makes such property community property. Ballinger’s Ann. Codes & Stats., § 4490. An oral agreement that such property might be held as separate property by one of the spouses would be in the face of this statute, and also another statute which provides that all conveyances of real estate or any interest therein shall be by deed. Ballinger’s Ann. Codes & Stats., §4517; Churchill v. Stevenson, 14 Wash. 620, 45 Pac. 28; Nichols v. Oppermann, 6 Wash. 618, 34 Pac. 162; Sherlock v. Denny, 28 Wash. 170, 68 Pac. 452. If such agreement was made, ... it was therefore void, and did not change the character which the law gave to the property.” See also, In re Parker’s Estate, 115 Wash. 57, 196 Pac. 632; Union Savings & Trust Co. of Seattle v. Manney, 101 Wash. 274, 172 Pac. 251; Dobbins v. Dexter Horton & Co., 62 Wash. 423, 113 Pac. 1088. Thu action of the court in overruling appellant’s demurrer to appellee’s amended complaint, the demurrer being based upon the provisions of paragraphs 695, 697, 698 and 700, Revised Statutes of 1913, is assigned as error. The assignment consists substantially of flat statements of the applicability of the paragraphs cited, and a claim that the testimony shows that the appellant had peaceable and adverse possession of lot 1, block 4, paying taxes thereon, using and enjoying the same for the statutory period, etc., without supporting these claims by argument or citation of authority. In the absence of argument to support the assignment, and especially the failure to consider the effect to be given the probate proceedings, or to show how and when the appellant repudiated the effect of his possession of the property as a tenant in common with the appellee, so as to make his possession adverse, we must hold this assignment of error to be abandoned. We may say, however, that our examination of the authorities submitted by appellant pertinent to the question, suggested by the assignment, convinces us that the action of the court overruling the demurrer was correct. For the reasons given, the judgment will be affirmed. ROSS, C. J., and MoALISTER, J., concur.

OPINION LACAGNINA, Judge. This special action was taken from the order of the trial court granting the defendant Wilson’s motion to set aside a default judgment taken against him by the plaintiffs. The action arose out of an automobile accident which occurred in 1983. The plaintiffs filed their complaint on March 8, 1985, and Wilson was served on March 11. On April 2, no answer having been filed, the plaintiffs filed an affidavit of default. Following a hearing on April 17, default judgment was entered against Wilson in the total amount of $160,000, and a copy of the judgment was sent to Wilson the same day. Six days later, Wilson filed his motion to set aside the judgment, which was later supplemented with a memorandum of authorities and three supporting affidavits. Following a hearing, the trial court granted the motion. Because we conclude that the trial court clearly abused its discretion in granting the motion, and because petitioners have no equally plain, speedy and adequate remedy by appeal, and granting relief will terminate the litigation, we accept jurisdiction and grant relief. A party seeking relief from a default judgment pursuant to Rule 60(c) must demonstrate 1) that its failure to file a timely answer was excusable under one of the subdivisions of Rule 60(c), 2) that it acted promptly in seeking relief and 3) that it had a substantial and meritorious defense to the action. Daou v. Harris, 139 Ariz. 353, 678 P.2d 934 (1984). In reviewing an order setting aside a default judg ment, we are mindful of two fundamental principles. The first is the law’s preference for resolution of disputes on their merits, so that any doubts should be resolved in favor of the party seeking to set aside the default judgment. Hirsch v. National Van Lines, Inc., 136 Ariz. 304, 666 P.2d 49 (1983); Union Oil Co. of California v. Hudson Oil Co., 131 Ariz. 285, 640 P.2d 847 (1982). The second is that the trial court is vested with broad discretion in this matter, and its determination will not be overturned by an appellate court absent a clear abuse of discretion. Hirsch v. National Van Lines, Inc., supra; Richas v. Superior Court, 133 Ariz. 512, 652 P.2d 1035 (1982). The exercise of that discretion must, however, be supported “by facts or sound legal policy.” City of Phoenix v. Geyler, 144 Ariz. 323, 329, 697 P.2d 1073, 1079 (1985). Wilson’s motion to set aside the default judgment, relying on Rule 60(c)(1), was accompanied by an affidavit of counsel, which described the sequence of events and established the factual basis for his assertion of excusable neglect as follows: 1. That one of the clients of [counsel’s law firm] is the Insurance Company of North America (INA). 2. That on or about March 26, 1985,1 received a telephone call from adjuster Jake Koogler of INA to advise that an answer needed to be filed in Case No. 223181, Gloria Almarez v. Todd D. Wilson. 3. That I made a note of the conversation, a copy of which is attached hereto as Exhibit E. The note was made on a pad of paper in which I maintain a list of action items. Ms. Koogler did not know the date of service, nor did she know when the answer was due. I also learned that the Plaintiffs’ attorney was Lars Pedersen. I never received a file. 4. My normal procedure following receipt of this suit information is to contact the plaintiff’s attorney, determine the nature of the case, the extent of injuries, advise that I will be handling the file and, if necessary, request an extension of time to answer. As a safety measure against error, I also customarily immediately request my paralegal to go to the Courthouse, obtain a copy of the complaint, and verify the date of service. On this day I performed neither of these customary methods to answer a complaint. 5. On March 26, 1985, I was clearing my desk and calendar to leave Tucson for depositions in California beginning Wednesday, March 27. My flight was leaving at 0645. It appears that in preparation for the California depositions and in clearing the calendar for the following two weeks, I inadvertently lost track of the notes and neglected to answer the Complaint. 6. Upon my return to the office on Monday, April 1, I did review the top page of my action list, but did not turn to the second page whereon the Almarez information was contained. Since I had not advised my paralegal of the suit, nor call [sic] Lars Pedersen, I had no reminder to follow up on the Complaint. 7. The next time I even thought about the case was at approximately 1:00 p.m. on April 23, 1985, when my partner, Scott Goering, told me that a default judgment had been entered in an ‘Almarez v. Wilson’ case and that the adjuster had spoken with me. I immediately reviewed my notes and found the information. Scott Goering filed the Motion to Set Aside the Judgment. (emphasis added). The sole basis for Wilson’s contention that a meritorious defense to the action existed was his affidavit, also filed in support of the motion, which stated, in pertinent part, as follows: (2) Affiant was involved in a motor vehicle accident with the plaintiff on July 26, 1983; the accident occurred at an open intersection; prior to entering the intersection, affiant looked to his right and did not see any vehicles approaching; as he entered the intersection, he was involved in a collision with the plaintiff’s vehicle; based upon the damage to affiant’s vehicle, and the fact that the plaintiff’s vehicle was not in sight when affiant looked prior to entering the intersection, and because of the severe property damage to affiant’s vehicle, it is affiant’s best information that the plaintiff was going at an excessive and unreasonable rate of speed and is equally at fault for the accident. It is apparent that Wilson has failed to establish either excusable neglect in failing to file a timely answer or the existence of a meritorious defense. With regard to the first element, it is clear that “carelessness is not synonymous with excusable neglect.” Hirsch v. National Van Lines, supra, 136 Ariz. at 309, 666 P.2d at 54. “Rather, the test of what is excusable is whether the neglect or inadvertence is such as might be the act of a reasonably prudent person under similar circumstances.” Daou v. Harris, supra, 139 Ariz. at 359, 678 P.2d at 940. In the context of an attorney’s action or inaction, the Arizona cases have found excusable neglect where the attorney had established and was utilizing office procedures designed to ensure a timely response, but was “deflected from his purpose by one of the many interruptions that beset practitioners in modem law practice,” Addison v. Cienega, Ltd., 146 Ariz. 322, 705 P.2d 1373 (2 CA-CIV 5295, filed May 9, 1985), or where “the mistake or neglect... was the type of clerical error which might be made by a reasonably prudent person who attempted to handle the matter in a prompt and diligent fashion.” City of Phoenix v. Geyler, supra, 144 Ariz. at 332, 697 P.2d at 1082. Such is not the case here. Although counsel’s affidavit indicates that he had established a procedure for responding to complaints, it is apparent by his own admission that his normal procedure was not followed. Although notes were taken of his conversation with the insurance adjuster, he failed to contact plaintiff’s attorney and he failed to have his paralegal obtain a copy of the pleadings from the courthouse. While some “deflection” may be found at the time of his initial conversation as a result of his impending departure for California, no effort was made upon his return to follow-up on the conversation as one of the items on his “action” list. Such inaction is more closely akin to carelessness, and clearly cannot be characterized as excusable neglect. We also cannot agree that Wilson established the existence of a meritorious defense. It is true that the affidavits filed in support of a motion to set aside a judgment are not intended to be a substitute for a trial on the merits and that it is sufficient if the facts set forth therein, taken as true, show a substantial defense to the action. Union Oil Co. of California v. Hudson Oil Co., supra; Hendrie Buick Company v. Mack, 88 Ariz. 248, 355 P.2d 892 (1960). Such a defense cannot, however, be based on conclusions, assumptions or affidavits based on other than personal knowledge. Richas v. Superior Court, supra. As the supreme court stated in Bichas, “[tjhough we acknowledge that the showing of a meritorious defense need not be strong, we hold that it must be greater than mere speculation.” 133 Ariz. at 517, 652 P.2d at 1040. The only fact alleged in Wilson’s affidavit is that he did not see the plaintiffs’ car as he entered the intersection. From that, he concludes that the plaintiffs must have been speeding and were therefore “equally at fault.” This is clearly insufficient, assuming as true the allegation that Wilson did not see the plaintiffs’ car, we cannot find that plaintiffs’ excessive speed is the only inference which may be drawn from that fact. In light of the evidence presented by the plaintiffs, through a police officer and an eyewitness, that Wilson was speeding, that the plaintiffs’ car was not speeding and that Wilson failed to yield at an unmarked intersection to a car coming from the right, his affidavit constitutes mere speculation that a defense may exist. While Wilson was not required to present his entire defense by affidavit, something more than this unsupported conclusion was required to obtain relief under Rule 60(c). In sum, we conclude that the trial court abused its discretion in granting Wilson’s motion to set aside the default judgment. The order is therefore vacated. HATHAWAY, P.J., and LIVERMORE, J., concur.

HAYS, Justice. Donald R. Roberts and his wife Elsie (hereinafter Roberts) brought an action against their insurer, State Farm Fire and Casualty (hereinafter State Farm), for damages to their home allegedly covered by their insurance policy. The trial court found that Roberts’ policy did not cover the type of damage complained of and granted State Farm’s motion for summary judgment. The Court of Appeals affirmed the trial court’s decision, Roberts v. State Farm, 146 Ariz. 301, 705 P.2d 1352 (1985), and Roberts petitioned this court for review. We have jurisdiction. Ariz. Const, art. 6, § 5(3) and 17A A.R.S. Civil Appellate Proc. Rules, Rule 23. We address only one issue: Does an insurance policy that excludes damage done by insects cover, through an “ensuing loss” provision, damage done after the insects are exterminated by the leakage of honey from their hive? FACTS In late May of 1980, Roberts began finding live honeybees inside their home. A few days after this discovery, Roberts noticed that a swarm of the insects had formed on their roof. Apparently the bees had made their way through the roof and were constructing a hive in Roberts’ attic. A beekeeper was consulted but due to the inaccessible location of the hive, he could not extract the queen and thereby draw off the swarm. Instead, he recommended extermination. A few days after the bees were dispatched, Roberts noticed honey dripping into their dining room. At first, this drip confined itself to one location, but gradually it began to spread and eventually encompassed the entire room. Apparently, after the bees were exterminated, the hive began to leak. Roberts contacted their insurer, State Farm, and a representative told them to get estimates. Eventually, however, State Farm denied coverage, claiming that the damage was caused by insects and specifically excluded from Roberts’ policy. ENSUING LOSS The relevant portion of Roberts’ policy read as follows: We insure for all risks of physical loss to the property described in Coverage A except for loss caused by: 6. wear and tear; marring; deterioration; inherent vice; latent defect; mechanical breakdown; rust; mold; wet or dry rot; contamination; smog; smoke from agricultural smudging or industrial operations; settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundations, walls, floors, roofs or ceilings; birds, vermin, rodents, insects or domestic animals. If any of these cause water to escape from a plumbing, heating or air conditioning system or household appliance, we cover loss caused by the water. We also cover the cost of tearing out and replacing any part of a building necessary to repair the system or appliance. We do not cover loss to the system or appliance from which this water escaped. Any ensuing loss from items 1 through 6 not excluded is covered (emphasis added). State Farm contends that the damage to Roberts’ home was due to insects and clearly excluded from coverage by the terms of the policy. Roberts, on the other hand, maintain that the loss was not due to insects, but due to the absence of insects. They claim that after the bees were exterminated the hive began to melt and only then did the honey seepage begin. They therefore conclude that this was an “ensuing loss” from insects coveted through the ensuing loss provision of their policy. They concede that the actual damage done by the bees themselves, i.e., the cost of tearing out hive and accompanying repairs is not covered. They dispute, however, that the damage to their dining room is not covered. In their petition for review, Roberts argue that the terms of their policy are ambiguous and as such should be construed against their insurer. See State Farm Mut. Auto. Ins. Co. v. Paynter, 122 Ariz. 198, 204, 593 P.2d 948, 954 (App.1979) (ambiguity in policy construed against insurer). State Farm responds, claiming that Roberts have never raised this argument before nor pointed to which term “they feel to be ambiguous.” State Farm does not inform us as to what conclusions we are to draw from this assertion. We gather, however, State Farm wishes to raise a waiver argument: those arguments not raised in the trial court are waived if raised for the first time on appeal from a summary judgment. See Crook v. Anderson, 115 Ariz. 402, 403-04, 565 P.2d 908, 909-10 (App. 1977). We disagree with what we take to be State Farm’s assertion. Throughout this litigation Roberts have proposed definitions for the word “ensue” and have cited cases dealing with ambiguous policies. In their motion for partial summary judgment, Roberts stated “[i]f the Court somehow finds that the policy is ambiguous, it must apply [the] well established rule that in the event of ambiguity, an insurance policy is to be construed in favor of the insured and against the insurer (citations omitted).” Roberts did not waive their ambiguity argument. We start out with the proposition that ambiguous terms in a contract of insurance are to be strictly construed in favor of the insured and coverage, and against the insurer. State Farm Mut. Auto. Ins. Co. v. Paynter, 122 Ariz. at 204, 593 P.2d at 954; Mission Insurance Co. v. Nethers, 119 Ariz. 405, 408, 581 P.2d 250, 253 (App.1978); Brenner v. Aetna Insurance Co., 8 Ariz.App. 272, 276, 445 P.2d 474, 478 (1968). In this context, if an insurer wishes to limit its liability, it must employ language in the policy which clearly and distinctly communicates to the insured the nature of the limitation. Sparks v. Republic Nat. Life Ins. Co., 132 Ariz. 529, 535, 647 P.2d 1127, 1133, cert. denied, 459 U.S. 1070, 103 S.Ct. 490, 74 L.Ed.2d 632 (1982). The principle of strict construction applies, however, only after the contested language of the policy has been determined to be ambiguous. Hampton v. Allstate Ins. Co., 126 Ariz. 403, 405, 616 P.2d 78, 80 (App.1980). It applies, however, with even greater force where the ambiguity appears in an exclusionary clause. State Farm Mut. Auto. Ins. Co. v. Paynter, 122 Ariz. at 204, 593 P.2d at 954. Whether or not a contract of insurance is ambiguous is purely a question of law. Rodemich v. State Farm Mut. Auto. Ins. Co., 130 Ariz. 538, 539, 637 P.2d 748, 749 (App.1981); State Farm Fire & Casualty Co. v. Rossini, 107 Ariz. 561, 564, 490 P.2d 567, 570 (1971). An ambiguity exists when the language of the policy is unclear and could be construed in more than one sense. Sparks v. Republic Nat. Life Ins. Co., 132 Ariz. at 534, 647 P.2d at 1132. With this law in mind, we return to Roberts’ policy. We note that the term “ensuing loss” is nowhere defined in the policy. Both parties have agreed, however, that the word “ensuing” means “to take place afterward ... to follow as a chance, likely, or necessary consequence: RESULT ... to follow in chronological succession.” See Roberts v. State Farm, 146 Ariz. at 302, 705 P.2d at 1353; Webster’s Third New International Dictionary, 756 (1969) definition of the word “ensue”). We note that this definition of “ensue” is not without precedent: See Aetna Insurance Co. v. Getchell Steel Treating Co., 395 F.2d 12, 16 (8th Cir.1968) (“to follow as a chance, likely or necessary consequence: to take place afterwards”). Both parties have also agreed on the meaning of certain other language within the policy: both agree that bees are insects and both agree that a loss occurred. See Roberts v. State Farm, supra, 146 Ariz. at 302-303, 705 P.2d at 1353-1354. With these agreements in mind, we focus on the disputed provision. In shortened form, it reads: We insure for all risks of physical loss to the property ... except for loss caused by: 6____[bees]____ Any ... loss [taking place afterward or following as a chance, likely, or necessary consequence] from ... [bees] ... not excluded is covered. We do not believe this language is ambiguous. It cannot be construed in more than one sense. The plain import of this language is that the loss, due to honey seepage, is an ensuing loss and is covered by the policy, unless one of the other various exclusions applies. Unless, for example, the honey seepage caused “marring” or “settling” or any one of the numerous other exclusions. It was error for the trial court to dismiss Roberts’ suit. Opinion of the Court of Appeals is vacated. Reversed and remanded for further proceedings consistent with this opinion. HOLOHAN, C.J., GORDON, V.C.J., and CAMERON and FELDMAN, JJ„ concur.

OPINION HATHAWAY, Judge. This appeal arises from the disposition of a petition for dissolution filed December 8, 1980, in the Superior Court of Pima County. Trial was held without a jury December 9, 1983, and the matter was taken under advisement. On February 28, 1984, the decree of dissolution was entered. Motions for new trial for relief from final judgment, to alter or amend judgment, or to reopen judgment were filed and argued by appellee Nancy Nordensson. Appellee thereafter obtained new counsel and filed new motions for relief from final judgment and to reopen judgment. Pursuant to Rules 59 and 60(c), Rules of Civil Procedure, 16 A.R.S., these motions contained allegations that appellee’s second attorney had failed to present some evidence at trial as well as to call witnesses that appellee and her third attorney thought should have been offered. The court granted appellee a new trial by minute entry dated May 8, 1984. Due to an oversight, the order presented to the court was signed but never filed with the clerk.. Meanwhile, a motion to clarify judgment was filed. Appellee requested that the trial court specify the grounds for the new trial in accordance with Rules 59(h) and (g). The trial court then ruled: “THE COURT FINDS that a new trial on all issues, except the status of the marriage, is justified, for the reason that the interest of justice requires a total new trial, except on the issue of the status of the marriage, because of the ineffective assistance of counsel for the petitioner.” Appellant Jeffrey Nordensson appeals from the granting of a new trial on the specified grounds. On appeal, appellant presents two questions for review: (1) Can a new trial be granted in a domestic relations matter for ineffective assistance of counsel at trial? (2) If a new trial can be granted for such reason, has it been shown that petitioner’s counsel was ineffective? INEFFECTIVE ASSISTANCE OF COUNSEL AS GROUNDS FOR A NEW TRIAL UNDER RULE 59(a). Rule 59(a) specifies eight grounds for granting of a new trial. Ineffective assistance of counsel is not mentioned among them. “Rule 59(a) Procedure; grounds. A verdict, decision or judgment may be vacated and a new trial granted on motion of the aggrieved party for any of the following causes materially affecting his rights: 1. Irregularity in the proceedings of the court, referee, jury or prevailing party, or any order or abuse of discretion, whereby the moving party was deprived of a fair trial. 2. Misconduct of the jury or prevailing party. 3. Accident or surprise which could not have been prevented by ordinary prudence. 4. Material evidence, newly discovered, which with reasonable diligence could not have been discovered and produced at the trial. 5. Excessive or insufficient damages. 6. Error in the admission or rejection of evidence, error in the charge to the jury, or in refusing instructions requested, or other errors of law occurring at the trial or during the progress of the action. 7. That the verdict is the result of passion or prejudice. 8. That the verdict, decision, findings of fact, or judgment is not justified by the evidence or is contrary to law.” Granting a new trial under Rule 59 is discretionary with the trial court. “Appellate courts are more liberal in sustaining an order granting a new trial than one denying a new trial____ Absent a manifest abuse of discretion, we do not interfere.” Melcher v. Melcher, 137 Ariz. 210, 212, 669 P.2d 987, 989 (App.1983). Attorney misconduct can be a basis for granting a new trial in Arizona. King v. Superior Court, 138 Ariz. 147, 673 P.2d 787 (1983). However, “a party’s mere dissatisfaction with his own counsel or allegations of his own counsel’s neglect, inadvertence, or mistake do not justify the granting of a new trial in civil cases.” 138 Ariz. at 151, 673 P.2d at 801. The trial court ordered a new trial without any particularity as to what conduct by appellee’s attorney justified it. Appellee argues that the failure of prior attorneys to properly question appellee’s expert on the proper valuation of the community corporation, as well as failure to call an expert to testify about her health, and the stipulation of the family home being a separate asset of her spouse without arguing for a community lien based on value at dissolution, all resulted from incompetent counsel, justifying the granting of a new trial. We have no indication from the trial court that these omissions in fact formed the basis for ordering a new trial. Rule 59(m) requires that a judge must record the reasons with particularity in granting a new trial. Reeves v. Markle, 119 Ariz. 159, 579 P.2d 1382 (1978). This was not done. A bald declaration of ineffectiveness of counsel does not meet the requirements of Rule 59(m). For an example of a sufficiently definite trial court order in a domestic relations case, see Keller v. Keller, 137 Ariz. 447, 449, 671 P.2d 425, 427 (App. 1983), in which the trial record clearly stated that the motion for new trial was granted “in application of the test set forth in Simpson v. Superior Court, supra [87 Ariz. 350, 351 P.2d 179 (1960)].” When the trial court does not specify with particularity, as here, the rule of Yoo Thun Lim v. Crespin, 100 Ariz. 80, 411 P.2d 809 (1966), may apply, i.e., the burden of proof shifts to appellee, on appeal, to prove that the trial court did not err in ordering a new trial. We do not believe appellee has met that burden. Even if a declaration of ineffective counsel could be deemed adequate under 59(m) and a determination could be made where under Rule 59(a)’s eight subsections this ground can be found, the trial court’s reason for granting a new trial cannot stand. Under King v. Superior Court, supra, 138 Ariz. at 152, 673 P.2d at 792, “counsel’s failure to act, whether inadvertent, intentional, or negligent, is not a ground for a new trial.” Of course, where the attorney utterly fails to appear, file briefs timely or offer argument during trial, the transition from alleged legal malpractice to flagrant misconduct is made. See Garrett v. Osborn, 164 Colo. 31, 431 P.2d 1012 (1967), in which the Colorado Supreme Court held that palpable malfeasance, misfeasance and nonfeasance of counsel supply grounds for a new trial. The record before us does not reveal this gross breach of duty. Courts outside Arizona are nearly unanimous in declaring that ineffective counsel is not a proper basis for granting a new trial. In re Marriage of Ford, 470 N.E.2d 357 (Ind.App.1984). In Maltby v. Cox Construction Company, Inc., 598 P.2d 336 (Utah 1979), the Supreme Court of Utah observed that disagreement of later counsel with the trial tactics of earlier counsel relating to evidence or instructions not offered did not amount to incompetence requiring the granting of a new trial. Appellee’s declaration of prejudice because of evidence relating to the family business other than book value, not presented at trial by appellee’s own expert witness, a CP A,, falls into the category of impermissible grounds for a new trial described in Maltby. Similarly, any evidence not presented concerning a “community lien” on appellant’s separate property could also have been a tactical decision, since the community occupied the home for five years and appellee, alone, for four years with no rent ever paid to appellant. The fact that appellee’s attorney did not call an expert to elaborate on appellee’s recounting of gynecological and endocrinological problems can only be characterized as tactical when it is improbable that such testimony, which is costly, would have resulted in an order for the year’s spousal maintenance requested, instead of the six months actually granted. An affidavit from Mrs. Nordensson’s gynecologist as to diagnosis and treatment was before the court. We find the conclusion of Andrea Dumon, Inc. v. Pittway Corporation, 110 Ill.App.3d 481, 66 Ill.Dec. 148, 155, 442 N.E.2d 574, 581 (1982), apposite: “The factual support for this contention [of inadequate trial counsel] is little more than a bare assertion, and no authority is cited for the proposition that a civil judgment may be reversed because of a party’s dissatisfaction with its chosen attorney. It has been held that it is an abuse of discretion to allow a motion for a new trial in a civil case when the basis of the motion is inadequacy of counsel for the losing party.” Appellee has had her day in court. She has shown no prejudicial error occurring at trial which would warrant granting a new trial. Maltby v. Cox, supra. Because we believe that the trial court’s ground for a new trial was stated with insufficient precision under Rule 59(m) and in any case, at most, amounts to no more than mere negligent omissions, we reverse the order for a new trial. Reversed. LACAGNINA and LIVERMORE, JJ„ concur.

OPINION BIRDSALL, Chief Judge. This case is before us again following the issuance of our mandate in Woliansky v. Miller, 135 Ariz. 444, 661 P.2d 1145 (App. 1983) and the trial court proceedings conducted pursuant thereto. That appeal, taken by the same appellant, Barry S. Woliansky, was from a judgment of the superior court denying specific performance of a contract for sale of a dwelling and denial of damages for delay in the conveyance of two other lots. We affirmed the denial of damages which was in favor of the appellees, Miller and Pugliani. Our opinion with reference to the action for specific performance held that the appellant was entitled to either specific performance or damages and we remanded with directions that the trial court determine the appropriate remedy. We also directed the trial court to award reasonable attorney fees to the appellant. In the trial court the parties stipulated that the appropriate remedy would be specific performance. The appellant sought attorney fees of $23,448 but the trial court awarded only $7,816. After the court’s initial decision the appellant sought modification of the judgment to add damages of $3,500 for damage to the property which was the subject of the specific performance. The trial court denied the requested damages because the parties had elected specific performance. The attorney fee award was one-third of the amount requested because the original complaint involved three lots, two of which were conveyed prior to trial. The denial of the monetary damages and the amount of attorney fees awarded are the issues presented in this appeal. We affirm as to the attorney fees but remand as to the other issue. We first dispose of the contention that the attorney fee award was inadequate. Not only did the litigation arise out of a contract, the contract contained a provision that “the prevailing party shall be entitled to reasonable attorneys fees ... from the party adjudged against.” The determination of the reasonable amount of attorney fees was peculiarly within the discretion of the trial court. Even though the other two lots were conveyed there still remained for trial the question of damage for an alleged tardy conveyance. The appellant lost that claim. It was an issue in the first appeal. We cannot say the trial court abused its discretion in finding, in effect, that two-thirds of the services were expended on that issue. The trial court heard all of the evidence, both on the substantive issues and later on the hearing regarding the fees. We will not disturb that adjudication. See Lake Havasu Resort, Inc. v. Commercial Loan Insurance Corp., 139 Ariz. 369, 678 P.2d 950 (App. 1983); Waqui v. Tanner Brothers Contracting Co., Inc., 121 Ariz. 323, 589 P.2d 1355 (App.1979). Turning to the other issue, a party who elects specific performance' may also be awarded equitable damages when the decree does not afford complete relief. See Annot., 7 A.L.R.2d 1204 (1949). Specific performance: compensation or damages awarded purchaser for delay in conveyance of land. At § 15 of that annotation it is recognized that “A vendor is bound to keep the property in a reasonable state of repair during delay caused by the controversy, so that the purchaser may receive what he has contracted to buy, unless there are some special circumstances which alter that obligation.” This annotation is supplemented in 11 A.L. R.4th 891 (1982). See also Rocks v. Brosius, 241 Md. 612, 217 A.2d 531 (1966), holding that the plaintiff may, in addition to securing specific performance, recover damages for delay in performance or for injury to the freehold. In Easton Theatres, Inc. v. Wells Fargo Land And Mortgage Co., Inc., 265 Pa.Super. 334, 401 A.2d 1333 (1979) the court stated: “In cases where specific performance is granted of a contract to sell realty, the general rule ‘is that the vendor must account to the purchaser for any deprivation of the use of the property from the date when possession should have been transferred and for any detriment to the property caused by his failure to preserve it properly____401 A.2d at 1342 (emphasis added). See also Reis v. Sparks, 547 F.2d 236 (4th Cir.1976); Selective Builders, Inc. v. Hudson City Savings Bank, 137 N.J.Super. 500, 349 A.2d 564 (1975). The conveyance of Lot 16 was almost five years after the time originally contracted. The evidence shows it had been occupied and undoubtedly had been subjected to at least ordinary wear and tear. The appellant contends the necessary repairs to the property were the result of more than ordinary usage. The appellant sought to prove equitable damages at the very first hearing in the trial court after our mandate. The trial court, believing that the selection of specific performance precluded these damages as a remedy, denied the appellant the right to present evidence in support of that claim. This was error. We remand so that this question may be tried. If it is determined that specific performance does not afford the appellant complete equitable relief and the appellant is therefore entitled to equitable damages, the decree shall be modified to provide for such additional relief. Affirmed in part; remanded in part. HOWARD and HATHAWAY, JJ., concur.

OPINION HOWARD, Judge. The issue in this case is whether the trial court abused its discretion in setting aside a default judgment. Appellant purchased real property in Pina] County belonging to appellee for delin quent taxes on February 28, 1979, and it continued to pay the taxes on the property in question for the years 1980, 1981 and 1982 prior to filing a complaint for the foreclosure of appellee’s redemption rights on March 26, 1982. W. Zev Bronner, a Texas resident, and other named defendants, were served by publication, and in addition received notice of the summons and complaint from Transamerica Title Company, which was holding the property as trustee and had been personally served with the summons and complaint on May 7, 1982. On May 13, 1982, Bronner wrote a letter to the clerk of the court discussing the case and asking the clerk to inform him of any further action he needed to take to prevent a judgment. The clerk of the Pinal County Superior Court did not accept or file the letter as an answer. No formal answer was filed nor was further action taken by Bronner, and on July 26, 1982, default judgment was entered by the court in favor of appellant, with the court finding, inter alia: “... that defendants were regularly served with process and have failed to answer or appear herein. The court also finds that the tax sale with [sic] which is the subject of this action was valid and that defendants have failed to redeem____” The trial court entered its order granting possession of the property to appellant and foreclosing Bronner’s right to redeem the same. Bronner died on February 11, 1983. On March 31, a personal representative was appointed and he commenced, to marshal the assets of the estate. On April 28,1983, the representative for the estate filed its motion to set aside the default judgment entered in this matter. Appellant presents the following issues for review: “1. Did the Appellee’s letter of May 13, 1982 constitute an appearance entitling him to the three (3) day notice required by Rule 55(b)(2), Rules of Civil Procedure? 2. Was the court’s finding in the default judgment of July 26, 1982 res judicata as to the question of the Appellee’s letter constituting an appearance? 3. Was [sic] Mr. Bronner and his successors in interest precluded from having judgment set aside for not timely filing a motion to set aside?” Appellant contends that the letter of May 13, 1982, did not constitute an appearance, because Bronner did not pay an answering fee as required by A.R.S. § 12-331 and because the letter did not contain those elements necessary to constitute an appearance. We do not agree. The letter sent to the Pinal County Court stated in part as follows: “ * * * As spokesman for that trust and in my own right, I hereby wish to notify you that we intend to redeem the subject 3 pieces of property and have contacted the County Treasurers [sic] office to that effect. Kindly inform me of any further action I/we need to take to prevent the adjudication of this property to the plaintiffs, as we are informed by the attorney we have consulted that the statutory right of redemption runs for 3 years. * * *” A formal answer or appearance is not necessary to trigger the notice requirement of Rule 55(b)(2). See McClintock v. Serv-Us Bakers, 103 Ariz. 72, 436 P.2d 891 (1968). A copy of the letter which Bronner sent to the Pinal County recorder was also sent to the plaintiff’s attorney. It seems clear to us that Bronner intended that his correspondence constitute an appearance in the case and an answer to the summons and complaint which were served upon him. Bronner, by virtue of the letter recognized the jurisdiction of the court to adjudicate the matter. The question of the failure to pay an appearance fee was addressed in the case of Carls Construction, Inc. v. Gigliotti, 577 P.2d 1107 (1978). There the court stated: ‘“We note that we are not dealing with technical concepts of appearance as the word is used in analysis of jurisdiction over the person... Rather, we are concerned with a provision of the Rules of Civil Procedure which seeks to insure fairness by providing notice to a party who has expressed interest in defending a lawsuit brought against him.’ [citation omitted] Here, the letter clearly indicated an intention on Gigliotti’s part to defend, and the three-day notice requirement of C.R.C.P. 55(b)(2) was therefore triggered. [citation omitted] Furthermore, we are not aware of any rule, statute, or case authority which makes the payment of the docket fee a prerequisite to an entry of appearance for the purpose of entitling a party to notice before entry of default judgment.” 577 P.2d at 1108-9. We agree with the Colorado court. Appellant’s contention that the judgment was res judicata because no motion was filed to set aside the judgment within six months after entry is without merit. The judgment, having been taken without giving the required notice, violates due process and is a nullity. See McClintock v. Serv-Us Bakers, supra; Phoenix Metals Corporation v. Roth, 79 Ariz. 106, 284 P.2d 645 (1955). The judgment being void, it was subject to attack under Rule 60(c)(4), Rules of Civil Procedure, 16 A.R.S. It was subject to attack after the expiration of the six-month period. As for appellant’s contention that appellee did not move within a reasonable time to set aside the judgment, such contention is without merit since the reasonable time requirement of Rule 60(c) does not apply when a judgment is attacked as void. Springfield Credit Union v. Johnson, 123 Ariz. 319, 599 P.2d 772 (1979). Affirmed. BIRDSALL, P.J., and FERNANDEZ, J., concur.

OPINION HOWARD, Judge. This appeal is from a review of a decision of the Motor Vehicle Division of the Arizona Department of Transportation by the superior court under the Administrative Review Act, A.R.S. §§ 12-901 to 12-914. A hearing was held before a hearing officer for the division who held that there was sufficient evidence to suspend appellee’s driver’s license. Appellee appealed the suspension to the Pima County Superior Court which reversed, holding that there was not substantial evidence in the administrative record to support appellant’s conclusion that reasonable grounds existed to believe that appellee was operating a motor vehicle while under the influence of alcohol or that appellee refused to take the requested test. We do not agree with the trial court and reverse. The record before the hearing officer discloses that at 1:14 a.m. on November 30, 1983, appellee stopped his vehicle at a signalized street intersection. There were two vehicles stopped at the opposite side of the intersection. When the traffic signal changed, appellee started to make a left turn in front of those two vehicles. He stopped his vehicle in an opposing traffic lane and the two opposing vehicles, which had also started into the intersection, had to stop or drive around appellee’s vehicle in order to avoid a collision. This was all observed by a motorcycle officer who followed and stopped appellee’s vehicle. Upon approaching appellee’s vehicle, the officer noticed appellee had a stuporous appearance. A mild odor of alcohol was detectable on appellee’s breath over a strong odor from a throat lozenge. Appellee admitted that he had been drinking. His eyes were watery and bloodshot and his pupils had a poor reaction to light. When appellee was asked for his driver’s license, he fumbled through his wallet and after about 25 seconds he produced a University of Arizona identification card. Appellee then fumbled through his wallet again and after approximately another 25 seconds he produced an Arizona driver’s license. The officer asked appellee to perform several tests on a level sidewalk. When appellee was asked to count backwards from 60 to 40 with his eyes closed, he opened his eyes at one point and at another point repeated several numbers. He also continued to count beyond 40 even though he had been instructed to stop at .40. During this test appellee weaved back and forth. Appellee was asked to balance on one leg for 30 seconds, with his arms straight down on his sides and his other foot approximately 6 inches off the ground. Appellee put his arms out for balance, he weaved from side to side and had difficulty maintaining his balance. Appellee was asked to do a finger to nose test by repeatedly touching a finger to the tip of his nose with the hand requested by the officer. Rather than touching the tip of his nose, appellee touched between his nostrils. The officer requested that appellee touch his nose three times with his left hand followed by his right. Appellee did this. When the officer switched his instructions by requesting that appellee touch his nose with his right hand then his left hand, appellee used his left hand then his right hand instead. Appellee also weaved back and forth during this test. Appellee was asked to touch each of the fingers of his hand with the thumb of his hand four times. He did it five times. Appellee was asked to write out the alphabet, the even numbers from 0 to 30 and the date, time and his signature. He did this although the officer had to repeat his instructions after each operation. Prior to performing the tests, appellee asked the officer if he could give him the keys to his automobile and walk away. The officer told him that this could not be done and that he had to perform a sobriety test. Based on the foregoing, the officer arrested appellee for driving while under the influence of intoxicating liquor. Appellee was asked to submit to a breath test to determine the alcoholic content of his blood. He was informed that a refusal to submit to this test would result in the suspension of his driver’s license. At 1:30 a.m. appellee responded that he would take the test. Then, at 1:50 a.m. he stated that he would not. For more than 30 minutes he was repeatedly asked to take the test. He stated that he did not know if he would take the test and that he needed time to think about it. Appellee was told that unless he expressly agreed to take the test he would be treated as having refused the test. Appellee never took the test although he was asked to do so five times. The superior court was limited to a review of the record before the agency and if there, was competent evidence to sustain the decision it was obliged to affirm. Willis v. State, 145 Ariz. 302, 701 P.2d 10 (1985). The agency proceeding and the review are civil in nature and the state’s burden of proof is by a preponderance of the evidence. Willis v. State, supra. When an administrative decision is appealed to the superior court, the court may not substitute its own judgment for that of the administrative agency. Arizona Department of Economic Security v. Lidback, 26 Ariz.App. 143, 546 P.2d 1152 (1976). If two inconsistent factual conclusions could be supported by the record, then there is substantial evidence to support an administrative decision that elects either conclusion. Webster v. State Board of Regents, 123 Ariz. 363, 599 P.2d 816 (App.1979). In order to reverse an agency’s decision, the reviewing court must find that there was no substantial evidence to support the agency’s decision. DeGroot v. Arizona Racing Commission, 141 Ariz. 331, 686 P.2d 1301 (App.1984). The trial court violated all of the tenets which we have previously set forth. Furthermore, A.R.S. § 28-691(A) only requires the law enforcement officer to have reasonable grounds to believe the person to have been driving while under the influence of intoxicating liquor in order to administer the chemical test. It does not require the division to show that the operator was in fact under the influence. In other words, only probable cause is necessary. Only the probability and not a prima facie showing of intoxication is the standard for probable cause. There was clearly enough evidence for probable cause in this case. The trial court was also of the opinion that appellee did not refuse to take the test within the meaning of A.R.S. § 28-691(B) because the officer never set a time limit within which he had to consent to take the test. This reasoning is fallacious. In Willis v. State, supra, the driver, for about one hour, was asked about a dozen times whether she would take the test and she repeatedly answered that maybe she would and maybe she would not. The officer finally concluded that this was a refusal. We held that the officer was justified in interpreting the driver’s answers as a refusal. The same is true here. The defendant cannot keep equivocating, hoping that in the meantime his blood alcohol content will go down. As was stated in the case of State v. Pandoli, 109 N.J.Super. 1, 262 A.2d 41 (1970): “[Ajnything substantially short of an unqualified, unequivocal assent to an officer’s request that the arrested motorist take the test constitutes a refusal to do so. The occasion is not one for debate, maneuver or negotiation, but rather for a simple ‘yes’ or ‘no’, to the officer’s request.” 262 A.2d at 42. The decision of the trial court is reversed with instructions that it enter a judgment affirming the decision of the hearing officer. BIRDSALL, P.J., and HATHAWAY, J., concur.

OPINION EUBANK, Judge. The issue in this appeal is whether the trial court erred in granting summary judgment in favor of appellee, State Farm Fire and Casualty Company (State Farm), and against appellants, Donald R. Roberts and Elsie Roberts, husband and wife (Roberts) in a suit for coverage in an insurance contract. We affirm. On February 12, 1979, State Farm issued a homeowners insurance policy to the Roberts. This policy was in full force and effect when, in May of 1980, honey bees built a hive and deposited honey in the attic of the Roberts’ home. In late May the Roberts noticed bees throughout their home, which they traced to the attic. They then had them exterminated. Within a few days after the extermination of the bees, honey began dripping from the attic into the dining room. For several months the honey continued to seep out of the hive and to cause damage to the Roberts’ home. The Roberts timely filed a claim with State Farm for physical loss under their homeowners policy. The claimed loss included the cost of tearing out and replacing an area of the Roberts’ roof in order to remove the beehive and honey residue from the attic and ceiling, and the cost of cleaning the honey stains from their carpeting. After State Farm denied coverage, the Roberts filed an action alleging breach of contract and bad faith with respect to the insurance contract. State Farm answered denying coverage. After some discovery, the Roberts moved for partial summary judgment and State Farm moved for summary judgment with respect to all matters. A hearing was held and the trial court denied the Roberts’ motion for partial summary judgment and granted State Farm’s motion for summary judgment. This appeal followed. The policy in question contains the following provision.. COVERAGE A — DWELLING We insure for all risks of physical loss to the property described in Coverage A except for loss caused by: * * * * * * 6. wear and tear; marring; deterioration; inherent vice; latent defect; mechanical breakdown; rust; mold; wet or dry rot; contamination; smog; smoke from agricultural smudging or industrial operations; settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundations, walls, floors, roofs or ceilings; birds, vermin, rodents, insects or domestic animals. If any of these cause water to escape from a plumbing, heating or air conditioning system or household appliance, we cover loss caused by the water. We also cover the cost of tearing out and replacing any part of a building necessary to repair the system or appliance. We do not cover loss to the system or appliance from which this water escaped. Any ensuing loss from items 1 through 6 not excluded is covered. (Emphasis added). Both sides agree that the Roberts’ home was damaged by honey seepage. The only question presented here is whether that loss is covered by the policy. More specifically, the Roberts maintain that even though item 6 excludes loss caused by insects, honey seepage is not damage caused by insects. The Roberts do not dispute that bees are insfects but rather focus on the language immediately following item 6, which states that, “[a]ny ensuing loss from items 1 through 6 not excluded is covered.” The Roberts acknowledge that damage done directly by the bees would be excluded by item 6, but insist that honey seepage would be an “ensuing loss.” Since the phrase “ensuing loss” is not defined in the policy, “ensuing loss” will be defined in the common sense terms of the average layman. Malanga v. Royal Indemnity Co., 101 Ariz. 588, 422 P.2d 704 (1967). According to Webster’s Third New International Dictionary 756 (1969), the word “ensue” has been defined to mean “to take place afterward____ to follow as a chance, likely, or necessary consequence: RESULT____ to follow in chronological succession.” See also Aetna Insurance Co. v. Getchell Steel Treating Co., 395 F.2d 12, 16 (8th Cir.1968) (“to follow as a chance, likely or necessary consequence: to take place afterwards”). Both parties agree with this definition of “ensue” and both parties agree that a “loss” occurred here. The Roberts argue that their loss was an “ensuing loss,” because the honey seepage was a resultant consequence of and took place after the bees were exterminated. State Farm answers that the damage to the Roberts home was not an “ensuing loss” but merely damage caused by insects, and thus within the policy exclusion. After analyzing what limited authority there is available on “ensuing losses,” we agree with State Farm. The Roberts’ argument confuses direct and indirect causes with preceding and ensuing causes. The Texas standard homeowner’s policy contains an “ensuing loss” provision which has been the subject of litigation. In McKool v. Reliance Ins. Co., 386 S.W.2d 344 (Tex.Civ.App.1965), the Texas court was faced with a situation where freezing temperatures froze the water in a swimming pool, which caused chipping and cracking of the ceramic tile on the pool’s walls. While the parties admitted that the insurance policy excluded losses caused by “cracking” or “extremes of temperature,” the insured argued that the loss was covered by a clause stating that all ensuing losses caused by water damage were covered. The court interpreted “ensuing losses” according to its ordinary meaning, and defined the term as “losses which follow or come afterwards as a consequence.” The court then found the ensuing loss provision inapplicable to the facts presented, but hypothesized a situation where the provision would apply: In other words, the tile having cracked because of the extreme cold or ice, there could be no recovery therefor [because the exclusion directly applied], but if water had entered through the cracks thus caused, the ensuing damage caused by the entry of the water would be recoverable. That would be a loss caused by water damage ensuing after the uninsured cracking of the tile. 386 S.W.2d at 345-346. In Lambros v. Standard Fire Ins. Co., 530 S.W.2d 138 (Tex.Civ.App.1975), the Texas court again addressed the “ensuing loss” provision. The homeowner’s building had collapsed due to groundwater pressures. The policy specifically excluded losses caused by settling or cracking, but again provided that all ensuing losses caused by water damage were covered. The court, citing McKool, defined “ensuing loss” as “a loss which follows as a consequence of some preceding event or circumstance.” (Emphasis added.) 530 S.W.2d at 141. The court found that since the underground water damage was the cause rather than the consequence of the settling of the home’s foundation, it was not an “ensuing loss.” The court said: Assuming that plaintiffs’ loss resulted from the action or presence of water beneath the surface, it nevertheless cannot be contended that such loss was an “ensuing loss” caused by water damage. Such a conclusion would involve “a backward application of the ensuing loss exception.” Gollaher, op. cit. 24 Sw.L.J. at 651. Such a construction, in effect, reads “ensuing” out of the exception. If we give to the language of the exception its ordinary meaning, we must conclude that an ensuing loss caused by water damage is a loss caused by water damage where the water damage itself is the result of a preceding cause. What is the preceding cause which gives to the exception the effect of taking the ensuing loss out of the reach of exception k [excluding losses caused by cracking]? Again, the plain language of the exception compels the conclusion that the water damage must be a consequence, i.e., follow from or be the result of the types of damage enumerated in exception k. “Ensuing loss caused by water damage” refers to water damage which is the result, rather than the cause, of “settling, cracking, bulging, shrinkage, or expansion of foundations, walls, floors, ceilings____” Since the evidence in this case, even when viewed in the light most favorable to plaintiffs, conclusively establishes that water damage was the cause, rather than the consequence, of settling, etc., exclusion k is applicable. See Park v. Hanover Ins. Co., 443 S.W.2d 940, 942 (Tex.Civ.App. — Amarillo 1969, no writ). 530 S.W.2d 141-142. The analyses by the Texas courts thus consists of three elements: a preceding cause (a crack in the foundation), a second or ensuing cause (water entering the crack), and an ensuing loss (the resultant physical damage due to operation of the second or ensuing cause). The Texas cases illustrate that the second cause is not of the same nature as, and is distinguishable from, the preceding cause and the ensuing loss would not have happened but for the operation of the second cause. Put another way: the preceding cause was an event (excluded from policy coverage) which created the opportunity for a second cause (included in coverage) to operate (which it would not have been able to do absent the preceding cause) and proximately cause the damage. The resultant damage is then an “ensuing loss.” A distinction must also be drawn between preceding and ensuing causes, which can operate to create an “ensuing loss,” and direct and indirect causes (also proximate and incidental causes) which cannot give rise to an ensuing loss. In Wheeler v. Phenix Ins. Co., 203 N.Y. 283, 96 N.E. 452 (1911), a policy insured against all fire loss, but exempted the carrier from liability for loss caused directly or indirectly by explosion of any kind, “unless fire ensues, and, in that event, for the damage by fire only.” The court held that the language did not exclude the company from liability for damage caused by an explosion which is preceded by and caused by the fire. The exception was meant to apply to the situation where there is an explosion (a preceding cause) from which a fire (an ensuing cause) ensues or follows, and not to the situation where there is a hostile fire on the insured’s premises (the proximate cause of the damage) which causes an explosion (which is merely an incidental cause). In the former case the company is not liable; in the latter it is liable because the explosion was a part of the fire and as such was covered by the general language of the policy. See also Couch on Insurance 2d (Rev.ed. 1982) § 42:535; Annot., 82 A.L.R.2d 1125 (1962); 43 Am.Jur.2d Insurance § 477 (1982). From these cases we can draw the following legal principles which would allow an “ensuing loss” to be covered: (1) The actual physical loss is not caused by an excluded source (insects), and (2) The physical loss is caused by some other source which in turn is the result or consequence of the presence of insects, and (3) The “some other cause” is, itself, not an excluded source. Applying these principles to the facts here, it is clear that the actual physical damage suffered by the Roberts was honey, this in turn was caused by insects. Therefore, the loss is caused by an excluded source and no coverage is available. The Roberts argue that the “loss” caused by the honey is an “ensuing loss.” However, it is not ensuing causes which are excluded, rather it is a loss caused by some source other than the insects which is covered, provided that that source was the result or consequence of the insects' presence. Two hypothetical situations exemplify this principle. First, the bees create the honey which in turn seeps into the carpeting of the house. The presence of the honey attracts a bear which breaks into the house and damages the carpet in an attempt to retrieve the honey. The resulting physical loss is a loss not caused by the bees. The loss results from a source other than the bees (the bear) and that loss was a result of the presence of the bees. Since bears (wild animals) are not themselves excluded, the loss is covered. Note, however, that while the loss to the carpet caused by the bear is covered, any loss attributable to the honey itself would not be covered as it is a loss caused by the bees and not another source. Using the same hypothetical instead of a bear being attracted by the honey, rodents do the damage. In such a case, although the rodents would qualify as “some other source” which caused an ensuing loss, since a loss caused by rodents themselves is excluded, the resulting loss would not be covered. We conclude that, based on the facts presented to the trial court in support of the cross-motions for summary judgment the damage to the Roberts’ residence was caused by the activities of the bees. While the effect of those activities was felt after the death of the bees, the bees were the only direct cause of the “loss” in the instant case. Consequently, the honey seepage damage was not an “ensuing loss” and item 6, which excluded coverage, was therefore applicable. Judgment affirmed. JACOBSON, C.J., concurs. . The complaint contained five counts: one (breach of duty of good faith and fair dealing); two (declaratory relief); four (common law fraud); five (unfair insurance practice); and six (misrepresentation of policy). There was no count three. However, basic to all of these counts is the question of coverage. , . For a discussion of cases interpreting this clause, see Gollaher, The 1960 Texas Standard Homeowners Policy, 24 S.W.L.J. 636, 651-654 (1970); Annot., 78 A.L.R.3d 950 (1977). . One court has held, however, that the second cause need not be a consequence of the preceding cause, that it can merely follow chronologically. Goldner v. Otsego Mut. Fire Ins. Co., 39 A.D.2d 440, 336 N.Y.S.2d 717 (1972) (holding also that the damage proximately caused by the second cause was an ensuing loss).

OPINION GRANT, Judge. Appellant Robert Wells Nelson (defendant) was found guilty by a jury of unlawful flight from a pursuing law enforcement vehicle, in violation of A.R.S. § 28-622.01 and driving while intoxicated (DWI), in violation of A.R.S. § 28-692(A), (B). The trial court granted defendant’s motion for a new trial on the DWI charges. He was sentenced on the felony flight to a three-year probationary term. On appeal, defendant has raised a number of issues concerning the preservation of the breath sample obtained after the intoxilyzer test was administered to him and the failure of the state to satisfy necessary foundational requirements before the results of the intoxilyzer test were admitted at trial. The state argues, and we agree, that there was ample independent evidence of defendant’s flight from the police officer. SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE FELONY FLIGHT CONVICTION Defendant was charged with a violation of A.R.S. § 28-622.01 which provides: Any driver of a motor vehicle who wilfully flees or attempts to elude a pursuing official law enforcement vehicle which is being operated in the manner described in subsection (C) of § 28-624 is guilty of a class 5 felony. Such law enforcement vehicle shall be appropriately marked showing it to be an official law enforcement vehicle. The following facts were presented at trial. When a patrol officer in Needles, California, observed defendant’s vehicle pull away from a stop sign at a high rate of speed, at approximately 10:30 p.m., he decided to follow. Although the speed limit in the area was 25 miles an hour, the police officer was traveling 55 miles an hour, and defendant’s vehicle was pulling away from him. The officer turned on the police vehicle’s overhead lights when he was approximately 50 yards behind the defendant. After defendant’s vehicle made a slow, weaving motion to the left, then corrected itself, the officer turned on the siren. The defendant’s vehicle turned off onto a dirt road, creating a large amount of dust as he traveled. The officer kept visual contact with the defendant’s tail lights and testified that the flashing lights on his police vehicle were brighter than defendant’s tail lights. As the police officer followed, defendant made a quick left-hand turn, traveling parallel to the police officer. The police officer testified that at that point defendant’s vehicle was traveling at his side, then suddenly made a turn right in front of his vehicle and was only one car length in front of him. The officer testified that he had on the flashing lights and siren the entire time. The police officer continued to follow defendant’s vehicle as it entered a concrete roadway in a residential area and turned into a driveway. He had followed the defendant for over six-tenths of a mile and testified that he believed that the defendant was trying to evade him. When the officer pulled up beside defendant’s vehicle at the residence, he lit up defendant’s vehicle with his spotlight. The defendant stumbled out of his vehicle and raised his hands to shoulder height without any request to do so by the police officer. The officer testified that from three feet away he could detect the strong odor of alcohol on defendant’s breath, that he had slurred speech and bloodshot eyes. Defendant was unable to produce his driver’s license and misspelled his middle name. He also volunteered to the officer that he had ten years of college and yet was unable to correctly write the alphabet when requested to do so. He failed all coordination tests given to him by the officer who stopped him and another officer who later arrived on the scene. Defendant also admitted to drinking six to eight beers during the evening before driving. As noted above, the defendant was granted a new trial on the DWI charges and the only conviction before this court on appeal is the conviction of the class 5 felony, unlawful flight from pursuing law enforcement vehicle, A.R.S. § 28-622.01. Even assuming that the results of the intoxilyzer test were improperly admitted at trial, which we need not decide in this appeal, we do not think a reversal of defendant’s conviction for felony flight is required. See Oshrin v. Coulter, 142, 109, 688 P.2d 1001 (1984). The erroneous admission of the results of breathalyzer tests can be harmless. See Estes v. State, 358 So.2d 1050, 1054 (Ala.App.1977) cert. denied, 358 So.2d 1057 (Ala.1978) (in a vehicular homicide case, the court rejected the defendant’s argument that the erroneous admission of breathalyzer test results was reversible error); City of Highland Park v. Block, 48 Ill.App.3d 241, 6 Ill.Dec. 285, 362 N.E.2d 1107 (1977) (disregarding the evidence of the breathalyzer test, the court held there was sufficient evidence to support the defendant’s conviction for DWI); People v. Cutler, 86 Mich.App. 118, 272 N.W.2d 206 (1978) (although recognizing the importance of scientific evidence at trial, the court held that the erroneous admission of breathalyzer test results in a vehicular manslaughter case was harmless error), cf. State v. Frederick, 129 Ariz. 269, 271, 630 P.2d 565, 567 (App.1981). The evidence of intoxication, the officers’ observations and defendant’s conduct, would have been admissible, even though not corroborated by the intoxilyzer test. The evidence of flight was overwhelming. The introduction into evidence of the intoxilyzer test reading would have added little to the charge under A.R.S. § 28-622.01. There was other evidence that showed defendant was intoxicated, that the officer’s siren and lights were flashing for approximately six-tenth’s of a mile, that defendant’s vehicle traveled parallel to the officer, that the officer traveled within 10 feet of the defendant’s vehicle, and that defendant knew that he was behind a police officer — according to his statements made when he viewed the video tape — although we note he attempted to explain away the significance of them on redirect examination. Finally, defendant admitted to drinking six to eight beers over the course of the evening. We do not think that there is a reasonable probability that had the results of the intoxilyzer test not been admitted, that the verdict would have been different. Therefore, we do not find reversible error in admitting the intoxilyzer test results. State v. Clow, 130 Ariz. 125, 127, 634 P.2d 576, 578 (1981). ELEMENTS OF THE OFFENSE UNDER A.R.S. § 28-622.01 Defendant argues that the state failed to introduce sufficient evidence to identify the police vehicle in this case as an “authorized emergency vehicle.” He also argues that even assuming that the police vehicle was properly identified in this case, A.R.S. § 28-622.01 has no application to non-Arizona vehicles. The state argues that defendant has misread A.R.S. § 28-622.01 to include a requirement that the state must prove the law enforcement vehicle was an “authorized emergency vehicle.” A.R.S. § 28-622.01 requires proof that: (1) the defendant was driving a motor vehicle (2) that he wilfully (3) fled or attempted to elude (4) a pursuing official law enforcement vehicle (5) which was being operated with both lights and siren activated and (6) that the law enforcement vehicle was appropriately marked showing it to be an official law enforcement vehicle. State v. Schultz, 123 Ariz. 120, 121, 597 P.2d 1023, 1024 (App.1979). The reference in A.R.S. § 28-622.01 to subsection C of A.R.S. § 28-624 relates solely to the manner of operation of the law enforcement vehicle. There is no requirement that the police vehicle was an “authorized emergency vehicle.” There was evidence presented at trial which established all of the above elements of the offense. The police officer testified that he was on duty as a member of the San Bernardino County Sheriff’s Department in Needles, California when the pursuit began. The officer was also a commissioned law enforcement officer in Arizona. We note that the statute does not, by its language, apply solely to Arizona law enforce ment vehicles. We agree with the state, that to read the statute narrowly, limiting it to Arizona law enforcement vehicles, would certainly place a premium on attempts to “outrun” pursuing police in bordering states in order to reach a safehaven inside the State of Arizona. Such a holding would not be consistent with other statutes recognizing the practical effect of interstate travel. See e.g., A.R.S. § 13-3832 (authorizing a peace officer of another state to enter and continue within the state in close pursuit of a person in order to arrest him for a felony committed in the other state). This statute seeks to punish conduct which demonstrates that the offender has wilfully chosen to create a potential danger to both life and property of others. The statute clearly punishes unreasonable conduct in resisting law enforcement activities. Cf., State v. Mather, 28 Wash.App. 700, 626 P.2d 44 (1981) (interpreting the felony flight statute of the State of Washington). We hold that the felony flight statute, A.R.S. § 28-622.01, applies to any and all law enforcement vehicles pursuing a motor vehicle in the State of Arizona. Judgment affirmed. MEYERSON, P.J., and HAIRE, J., concur.

OPINION BIRDSALL, Presiding Judge. Following a Rule 11 examination to determine his competency, appellant was found competent to stand trial on four counts of aggravated assault, one count each of attempted burglary, burglary, kidnapping, theft, resisting arrest, and criminal damage. Appellant waived his right to a jury trial and raised an insanity defense. He was found guilty on all counts, two of the convictions were held to be priors to the others, and he was sentenced to four ten-year terms, one eight-year term, three three-year terms, one 2.5-year term, and one 1.875-year term, all aggravated. Three of the ten-year terms were applied consecutively, the rest were all concurrent to one or another of the ten-year terms. Appellant’s issues on appeal are as follows: 1) the trial judge erred in not making a separate finding of his competency to waive his constitutional right to a jury trial; 2) the court erroneously admitted statements appellant made during his Rule 11 evaluation; 3) the trial judge erred in rejecting appellant’s insanity defense because his insanity was established by clear and convincing evidence and the state failed to prove his sanity beyond a reasonable doubt; and 4) appellant's consecutive sentences are excessive under the circumstances. Prior to trial, defense counsel moved for a mental examination to determine both appellant’s competence to stand trial and his mental condition at the time of the incidents with which he was charged. A psychologist, Dr. Hinton, filed a report concluding that appellant was competent to stand trial, but his ability to distinguish right and wrong and his appreciation of the nature and consequence of his acts were questionable, and that a formal Rule 11 proceeding was needed. The court granted appellant’s Rule 11 motion and appointed two psychiatrists. Both psychiatrists found appellant competent to stand trial, one later testified that in his opinion appellant was M’Naghten insane at the time of at least one of the incidents; the other testified that appellant was not M’Naghten insane. The psychologist also testified at trial that in his opinion appellant was M’Naghten insane. Following the determination of appellant’s competence to stand trial, the parties agreed to waive a jury trial, and at a hearing, following questioning of appellant by the trial judge, the judge approved of the waiver of the jury. The defense of insanity had been raised and much of the actual trial consisted of testimony as to appellant’s sanity at the time of the incidents. In addition to the testimony of the two psychiatrists and the psychologist, other testimony concerned a diagnosis of paranoid schizophrenia made at Kino Hospital upon admission following an episode of psychotic behavior in the Pima County Jail while appellant was awaiting trial. The court also learned that appellant’s parent suffered from a severe mental illness, and that appellant had undergone previous psychiatric hospitalization in New York. Appellant now argues that it was not sufficient that the trial judge make a finding that appellant’s waiver of the jury trial was made knowingly, it was also necessary that the judge make a competency determination of his ability to waive a constitutional right. We have analyzed a succession of cases dealing with the law in Arizona concerning competency to waive jury trial and we conclude that appellant is correct, it was error not to make a specific on-the-record finding of his competency to waive the jury trial. Our examination begins with Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966). There the Supreme Court found a distinction between a defendant’s mental competence to stand trial, and competence to waive his right to counsel at trial. In light of its decision in the same term in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the Court, in a per curiam decision, remanded West-brook to the Arizona Supreme Court for further proceedings. Pate concerned the failure of a court to determine competency of a defendant to stand trial. The Ninth Circuit Court of Appeals cited Westbrook in its decision in Sieling v. Eyman, 478 F.2d 211 (9th Cir.1973). Sieling concerned a situation similar to the one we consider today. Three mental health experts found the defendant M’Naghten insane at the time of the crime, yet two believed defendant was competent to stand trial. Before his trial began, Sieling entered a plea of guilty, no additional determination of his competency to enter the plea was made, and he was sentenced. The denial of his petition for habeas corpus by the United States District Court was appealed to the Ninth Circuit. Quoting Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), the court stated: “[i]t is of course well settled that a defendant in a criminal trial cannot be deemed to abandon any fundamental constitutional protection unless there is both ‘an intelligent and competent waiver by the accused.’ ” 478 F.2d at 214. The Sieling court then went on to state, “We think Westbrook makes it plain that, where a defendant’s competency has been put in issue, the trial court must look further than to the usual ‘objective’ criteria in determining the adequacy of a constitutional waiver____ It was not suggested [in Westbrook], nor has it been in this case, that the state court’s determination that the accused was competent to stand trial was incorrect. The clear implication, then, is that such a determination is inadequate because it does not measure the defendant’s capacity by a high enough standard. While the Court did not suggest a standard, it is reasonable to conclude from the Court’s language that the degree of competency required to waive a constitutional right is that degree which enables him to make decisions of very serious import.” 478 F.2d at 214-15. Following the Ninth Circuit’s decision in Sieling, the Arizona Supreme Court decided State v. Decello, 111 Ariz. 46, 523 P.2d 74 (1974). The court analyzed both West-brook and Sieling, and found them to be controlling. However, the court stated, “[T]he United States Supreme Court has indicated that greater care must be taken in allowing a person to waive his right to an attorney than it does in finding him competent to stand trial. Westbrook, supra. We do not believe, however, that the United States Supreme Court in Westbrook, supra, mandates that a defendant who is represented by counsel and is competent to stand trial must be given, absent other facts, a further hearing by the court as to his competency to waive his right to a jury.” Ill Ariz. at 48-49, 523 P.2d at 76-77 (emphasis added.) Subsequently, the court distinguished the Sieling holding, “We believe that the facts in the Sieling case may be distinguished from the facts in the instant case. In Sieling, supra, there was a definite conflict in the psychiatrists’ testimony which not only put the defendant’s sanity ‘in issue,’ but raised a ‘substantial question’ as to his mental capacity. In the instant case, even though psychiatrists were appointed and the defendant was sent to the hospital for evaluation, the reports were in agreement as to defendant’s mental capacity.” 111 Ariz. at 49, 523 P.2d at 77. We cannot find that the three experts who testified at appellant’s trial were in agreement as to his mental condition. It is clearly not sufficient that all found him competent to stand trial, Westbrook, supra, Sieling, supra. See also State v. Wagner, 114 Ariz. 459, 561 P.2d 1231 (1977). The state urges that the record of the case reflects that appellant was competent to waive the jury. We decline to make such a finding. The questioning of appellant by the judge prior to the judge’s acceptance of the waiver of the jury trial indicates that the appellant spoke no more than “Yes, sir,” and “Yes, your Honor,” in response to the questions posed by the court. The appellant did not testify at the trial. We do not believe that we should presume the judge determined from this that appellant’s level of competence rose to the higher standard mandated by West-brook and Sieling absent a specific finding. Nor do we agree that the medication which contributed to the appearance of competence to stand trial necessarily proved a competence to waive constitutional rights. It is, however, not necessary to reverse the judgment of the court. We follow the analysis of our supreme court in Wagner, supra, that it is not necessary to reverse if the record can be expanded on remand to include a finding by the trial judge of the appellant’s competence to waive a jury trial. In Wagner, our supreme court conceded that Pate v. Robinson, supra, held that no cure could be effected by a remand for an evidentiary hearing to determine the competency. Nevertheless, the court observed that the Sieling court had found that to be so because there had never been any competency determination, nor mental health examination, made in Pate. In Sieling, as well as in Wagner, and in the instant case, more than one mental health expert filed reports which were in the record from which the trial judge may be able to make a determination of the higher standard of competency required to' waive the right, that is, the standard propounded by the Wagner court, “whether the defendant is making a rational and reasoned decision” on a matter of very serious import. We likewise follow the procedure of the supreme court in Wagner; the matter is remanded “to the trial court for a hearing to determine: 1. if the court did, in fact, find that the defendant was competent to [waive a jury trial], and 2. if this cannot be determined, if the defendant was, in fact, competent to [waive a jury trial]. The trial court shall conduct a hearing, make findings of fact and file same together with a reporter’s transcript of the proceedings in this court within 90 days of the issuance of the mandate of this court in the instant case.” 114 Ariz. at 463, 561 P.2d at 1235. In the event that a finding of competency according to the announced standard is made, no further proceedings in the trial court need take place, and it is therefore necessary to consider appellant’s other issues on appeal. Appellant’s primary argument is that the trial judge erred in applying the applicable statutory assignment of burden of proof of his insanity in rejecting his insanity defense. The record indicates that there was extensive discussion between the court and the appellant’s counsel concerning the applicable dates of two different statutes. A.R.S. § 13-502 was amended by the 1983 legislature. The version before amendment said: “A person is not responsible for criminal conduct if at the time of such conduct the person was suffering from such a mental disease or defect as not to know the nature and quality of the act or, if such person did know, that such person did not know that what he was doing was wrong.” Our supreme court has held that a defendant could rebut the presumption of sanity by raising a reasonable doubt concerning his sanity. Once a reasonable doubt was raised, the burden of proof shifted to the state, which had to prove the defendant’s sanity beyond a reasonable doubt. State v. Coconino County Superior Court, Division II, 139 Ariz. 422, 678 P.2d 1386 (1984), State v. Berndt, 138 Ariz. 41, 672 P.2d 1311 (1983). The 1983 amendment raised the standard of the burden of proof the defendant must bear thusly: “The defendant shall prove he is not responsible for criminal conduct by reason of insanity by clear and convincing evidence.” A.R.S. § 13-502(B) (Supp. 1984). Now there is no shift in the burden of proof, rebutting of the presumption of sanity by clear and convincing evidence of insanity is required, and there is therefore no requirement of proof of sanity beyond a reasonable doubt. See State v. Coconino County, supra. Appellant’s main problem is that the above-quoted amendment became effective July 27, 1983, and the actions for which he is charged span a period of time from July 24 through August 3, 1983, with one count occurring July 27. Therefore, the burden as to his sanity shifted as to the dates of the different counts. State v. Coconino Co., supra. This information was conveyed to the trial judge, who indicated that he had studied the amendment and its effect, and that he had decided each count by the applicable standard. We believe the record demonstrates that this was done and there is evidence to support such findings. Appellant cites as additional error a line of questioning concerning statements made to one of the psychiatrists by appellant concerning his knowledge of the offenses with which he was charged. Appellant had stated to Dr. Morenz that he was aware at the time of the interview with Morenz that what he had done was wrong. This statement was included in Dr. Morenz’s Rule 11 examination report. Appellant’s counsel moved in limine, prior to trial, to preclude admission into evidence of these remarks. No ruling was made on the motion because of the prosecutor’s statement that he would not elicit the information in his examination. On direct examination of Dr. Gurland, the other psychiatrist, appellant’s counsel sought to have Dr. Gurland distinguish Dr. Morenz’s examination which had not found insanity. On cross-examination, the state was apparently attempting to impeach Gurland’s analysis of Morenz’s diagnosis, and the cross-examination began: “Q. Doctor, I think you indicated you were familiar with a report done by Dr. Morenz? A. Yes, I had a chance to review it earlier either some time last week or the beginning of this week. Q. Then you are aware that of course when Mr. Cameron talked to Dr. Morenz that he indicated he knew that what he did was wrong?” The appellant’s counsel’s objection was overruled and the state was allowed to continue to inquire as to appellant’s responses to Dr. Gurland and Dr. Morenz concerning his knowledge of the right- or wrong-ness of his actions. This is the kind of evidence which Rule 11.7(b)(1), Rules of Criminal Procedure, 17 A.R.S., specifically excludes. Nor does the state assert that this testimony ought to have been allowed. We find that the objection was proper and that the question and the subsequent line of testimony were erroneously admitted. We find, though, that the error was harmless for more than one reason. First, when the trial judge is also the trier of fact, the judge often hears otherwise inadmissible evidence. This is more often true in civil trials, where juries are more frequently waived. Nevertheless, judges in criminal cases hear inadmissible evidence in suppression hearings and the like. Thus, our supreme court in State v. Garcia, 97 Ariz. 102, 397 P.2d 214 (1964) found harmless an error admitting evidence otherwise inadmissible when the criminal trial was to the judge, rather than to a jury. Second, the statements of the appellant to the psychiatrist were a part of the Rule 11 report of the doctor to the judge and were therefore already before the judge and were presumably already known to him. And finally, we cannot say that evidence as to the appellant’s mental state at the time of the interview with the psychiatrist was so prejudicial as to confuse the judge. There was abundant testimony that persons undergoing a psychotic episode often recognize later the wrongness of what they did during the episode even though they are incapable of recognizing it at the time. Therefore, we find the error harmless and will not reverse. If it is found that appellant was not competent to waive a jury trial, and further proceedings are mandated beyond that finding, we presume such error will not recur. Appellant finally argues that the three consecutive ten-year sentences were excessive and that the judge failed to state his reasons for giving consecutive sentences. It is not necessary to restate the reason for giving consecutive sentences when the same reasons have adequately been given to explain why a sentence is aggravated. State v. Lamb, 142 Ariz. 463, 690 P.2d 764 (1984); State v. Bishop, 137 Ariz. 5, 667 P.2d 1331 (App.1983). The trial judge adequately stated his reasons in the record for giving an aggravated sentence, i.e., the multitude of dangerous felony offenses committed, the use of deadly weapons and dangerous instruments, the infliction of serious physical injury upon one victim, and the threatened use of deadly physical force against a peace officer. It is not necessary for these reasons to be repeated to order consecutive sentences. The trial court has broad discretion in sentencing. If a sentence is within statutory limits, it will not be modified or reduced unless, from the circumstances, it clearly appears that the sentence was an abuse of the trial court’s discretion. State v. Stotts, 144 Ariz. 72, 695 P.2d 1110 (1985). While appellant’s sentences were aggravated, they were not the top range of sentences available. Nor do we find any abuse of discretion in giving consecutive sentences. The sentences are affirmed. Remanded for further proceedings consistent with this opinion. Upon the filing of the record in this court of the further proceedings in the trial court, if the court has found the appellant was competent to waive the jury trial, the judgment of convictions and sentences will be affirmed by supplemental opinion. If no such finding is made, the judgment will be reversed. HOWARD and FERNANDEZ, JJ., concur. . Rule 11, Rules of Criminal Procedure, 17 A.R.S.

CAMERON, Justice. Defendant, Estevan Borbon, was convicted and adjudged guilty of attempted armed robbery with a dangerous or deadly weapon, A.R.S. §§ 13-1001, -1904, aggravated assault, A.R.S. § 13-1204, resisting arrest, A.R.S. § 13-2508, and criminal trespass, A.R.S. § 13-1504. Because defendant was on probation from an earlier matter, solicitation of the sale of cocaine, he was sen tenced to life imprisonment without possibility of parole for twenty-five years for the robbery,.A.R.S. § 13-604.01, two and one-quarter years for the assault, A.R.S. § 13-604, two and one-quarter years for the resisting arrest, A.R.S. § 13-604, and two and one-quarter years for the criminal trespass, A.R.S. § 13-604. All sentences were to run concurrently. We must decide the following issues: I. Did the trial court err in refusing to grant defendant’s Rule 11 request for a hearing to determine his competency to stand trial? II. Did the trial court err in refusing to grant defendant’s motion to produce police records of one of defendant’s witnesses? III. Did the trial court improperly instruct the jury concerning the term “readily capable of causing serious physical injury?” IV. Was defendant denied effective assistance of counsel? V. Did the trial court err in denying defendant’s Rule 32 petition for an evidentiary hearing concerning the effectiveness of trial counsel? The facts follow: On 19 December 1983, Donald Gilmore was working the “graveyard shift” at a Thrifty Oil Gas Station located in south Tucson, Arizona. At some time after midnight, a black car drove into the station and defendant and another man got out and paid for about 68 cents of gasoline. They then asked Gilmore to give them more gas, free of charge. When Gilmore refused, defendant began to yell at him and threatened to rob him. After several minutes, the two men got back into the car. As they were driving away, Gilmore wrote down the license number of their car. About half an hour later, defendant returned to the gas station and began hitting the window of the cashier’s booth, in which Gilmore was sitting, with a tire iron. The booth was locked and the windows were made of bulletproof glass, preventing defendant from breaking in. As Gilmore picked up the phone to dial the police, Officer Clarence Johnson drove up to the station. Officer Johnson had been patrolling that area of town, making a security check of the businesses located there. He noticed a black car parked by the Valley National Building. As he drove toward it, the car pulled out and began driving away. Officer Johnson followed the car and, while doing so, saw defendant at the Thrifty station hitting the cashier's booth. When defendant saw the police car, he attempted to flee. The officer followed him in the car for a couple of blocks and then got out to attempt to arrest him. Defendant turned on him with the tire iron, dropped the iron, and continued to run. Defendant then forced his way into one of the nearby homes. Officer Johnson followed him in and again attempted to arrest him. During the ensuing struggle, defendant hit Johnson in the face and kicked him. Finally, and with the help of a man who was staying in the house, the officer handcuffed defendant and placed him under arrest. Defendant appeals from his conviction and sentence and from a denial of relief sought pursuant to Rule 32, Rules of Criminal Procedure, 17 A.R.S. The two matters were consolidated in this opinion. I. DEFENDANT’S RULE 11 MOTION Prior to trial, defendant moved for an examination to determine his competency. Rule 11.1, Arizona Rules of Criminal Procedure, 17 A.R.S. Dr. Richard Hinton, a psychologist who works for the Pima County Court Clinic, conducted an initial, prescreening evaluation, pursuant to a local Pima County practice, in which he concluded that there were insufficient grounds to pursue a formal Rule 11 proceeding. Dr. Hinton’s report stated that: Mr. Borbon was able to accurately state the charges against him. He identified his attorney as Donald Klein and demonstrated an adequate understanding of his role and function. He also articulated clearly the role and function of the judge and prosecutor in criminal proceedings. This man is felt to be capable of giving informed consent to a plea agreement, should one be offered to him. The trial court denied defendant’s request, stating: I have read Dr. Hinton’s report now several times previously, and again today, and if we are to use this screening process at all and have it mean anything, then I think I must follow his conclusions and whatever language he may have used in describing all of it, he certainly finds not to warrant formal Rule 11 proceedings, so I will deny your motion. Defendant now argues that the trial court’s ruling constituted prejudicial error. Rule 11.2 permits either party to a criminal proceeding to “move for an examination to determine whether a defendant is competent to stand trial * * Once the party has properly made this motion, the trial court must determine whether reasonable grounds for an examination exist. Rule 11.3. We have stated that “[reasonable grounds exist [when] there is sufficient evidence to indicate that the defendant is not able to understand the nature of the proceeding against him and to assist in his defense.” State v. Salazar, 128 Ariz. 461, 462, 626 P.2d 1093, 1094 (1981). Evidence is sufficient when it creates a doubt in the court’s mind as to defendant’s competency. State v. Messier, 114 Ariz. 522, 525, 562 P.2d 402, 405 (App. 1977). Whether reasonable grounds exist is a determination within the trial judge’s discretion and his decision will not be reversed unless there is a manifest abuse of this discretion. State v. Romero, 130 Ariz. 142, 147, 634 P.2d 954, 959 (1981). Pima County has developed an uncodified practice in which defendants who seek Rule 11 appointments are required to submit to a pre-Rule 11 screening. See State v. Neal, 143 Ariz. 93, 99, 692 P.2d 272, 278 (1984). Defendant argues that the effect of this practice is to impermissibly delegate the trial court’s decision as to whether reasonable grounds exist to the pre-screening doctor. We do not, however, find this arrangement substantially different from the situation that we approved of in State v. Cook, 115 Ariz. 188, 564 P.2d 877 (1977). There, the defendant was initially examined by two psychiatrists and found competent to stand trial and assist in his own defense. Approximately three months later, his attorney informed the court that he believed that his client’s condition had deteriorated. The trial court asked one of the psychiatrists to re-examine the defendant. The doctor stated that, in his opinion, the defendant’s condition had not changed since the initial examination and, based on this evaluation, the court did not order further testing. We affirmed the trial court’s actions stating that “[t]his was a preliminary determination of reasonable grounds only.” Id. at 191, 564 P.2d at 880. In essence, the Pima County practice is no different: one doctor makes an evaluation which the trial court may use in deciding whether reasonable grounds exist to order further examination by two mental health experts. So long as his recommendations are used only in determining whether reasonable grounds exist, see State v. Lane, 128 Ariz. 360, 361, 625 P.2d 949, 950 (App.1981) (“[t]he trial judge* * * must be careful that this preliminary hearing does not become a determination of competency itself”), we find this practice acceptable. We must admit that the language of the trial judge in denying the motion gives us concern. It could appear that the trial judge relied upon Dr. Hinton’s recommendation as conclusive rather than using the recommendation as an aid in making his decision, as the rule requires. It is the trial judge who must determine if reasonable grounds exist for the hearing and the record should make it clear that is the case. In the instant case, the statement of Dr. Hinton was more than sufficient upon which to base a conclusion that defendant could assist in the preparation of his defense. From these facts, we find no abuse of discretion in denying the Rule 11 motion. II. DISCOVERY The black car that drove into the gas station was registered to Manny Lopez. Defendant made a motion in limine requesting “any and all prior arrests and convictions of Manny Lopez for giving false information to police officers, carrying concealed weapons, assault and disorderly conduct.” The state opposed the motion, arguing that it had no intention of calling Lopez as a witness. Defendant explained that he was going to call Lopez to testify and wanted the information in case he chose to treat Lopez as an adverse witness and impeach him. The trial court denied this request. At trial, defense counsel did call Lopez, who denied knowing defendant but admitted that he had driven his car frequently in the area where the robbery occurred. Defendant did not ask about his prior arrests and the state did not ask any questions at all on cross-examination. Defendant now argues that the trial court’s denial violated both our own Rules of Discovery and defendant’s constitutional right, under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963), to receive from the state information that is material to guilt or punishment. Discovery in criminal cases is governed by Rule 15, Arizona Rules of Criminal Procedure, 17 A.R.S. Rule 15.1 deals with the state’s obligations and requires the prosecutor to disclose all prior felony convictions of witnesses whom the prosecutor expects to call at trial, Rule 15.1(a)(7), and those convictions that the prosecutor intends to use to impeach defense witnesses, Rule 15.1(c). Because the state did not intend to call Manny Lopez as a witness, nor did it investigate his arrest record in order to impeach him, the prosecution was not obligated, under these provisions, to disclose the requested materials. Rule 15.1(a)(7) also requires the state to disclose all information tending to mitigate or negate defendant’s guilt. This section was intended to clarify and codify the prosecutor’s constitutional obligations to disclose material information as outlined in Brady, supra. See Comment to Rule 15.-1(a)(7). Recently, the United States Supreme Court has defined “materiality” in the context of impeachment evidence. In United States v. Bagley, defendant had requested “ * * * the prior criminal records of witnesses, and any deals, promises or inducements made to witnesses in exchange for their testimony.” — U.S. -,-, 105 S.Ct. 3375, 3377, 87 L.Ed.2d 481, 486 (1985). The prosecution did not disclose certain payments pursuant to a “Contract for Purchase of Information and Payment of Lump Sums Thereof.” The Court realized that this evidence was important because it was the type of information “that the defense might have used to impeach the Government’s witnesses by showing bias or interest.” Id. 105 S.Ct. at 3180. In finding that the government’s failure to disclose did not rise to the level of a constitutional violation, the Court defined the standard of materiality as follows: “[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id. 105 S.Ct. at 3184. Applying that standard to the instant case, we find no error in the trial court’s denial. Defendant apparently wanted to show that it was Lopez and not he, who attempted to rob the store. The evidence to the contrary was overwhelming. Officer Johnson saw defendant banging on the window of the cashier’s booth with a tire iron and did not lose sight of him while making the arrest. The cashier also made an in-court identification of defendant. In light of this testimony, we do not find that the requested information was material, Bagley, supra, or would have changed the result of the proceeding. We find no error. III. DANGEROUS OR DEADLY WEAPONS Defendant raises two arguments concerning the allegation that he used a “dead ly or dangerous weapon while committing the robbery.” He argues first that he was entitled to a directed verdict of acquittal on the greater offense of attempted robbery because the state had failed to prove that the tire iron was readily capable of causing physical injury. Second, defendant contends that the trial court improperly instructed the jury as to the meaning of the phrase “readily capable.” 1. Directed Verdict Pursuant to Rule 20, Arizona Rules of Criminal Procedure, 17 A.R.S., a defendant is entitled to a directed verdict of acquittal when there is “no substantial evidence to warrant a conviction.” We have defined substantial evidence as “more than a scintilla and * * * such proof as a reasonable mind would employ to support the conclusion reached.” State v. Clabourne, 142 Ariz. 335, 345, 690 P.2d 54, 64 (1984). In this case, we find the evidence sufficient to support the conviction. Under A.R.S. § 13-1904: A. A person commits armed robbery if in the course of committing robbery as defined in § 13-1902, such person or an accomplice: ****** 2. Uses or threatens to use a deadly weapon or dangerous instrument or a simulated deadly weapon. Additionally, the legislature has defined dangerous instrument as “anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury.” A.R.S. § 13-105(7). Defendant argues that because the cashier’s booth was made of bulletproof glass, which defendant could not shatter, he was not actually “readily capable of causing physical injury” to the cashier. We do not agree. Defendant began hitting the door so violently that the occupant was concerned that defendant would be able to break down the door and harm him. We find this evidence sufficient to satisfy the statutory language and hold that the trial judge acted properly in denying the motion for a directed verdict. 2. Jury Instruction Defendant also argues that the trial court gave an incomplete jury instruction. Defendant had requested that the following charge be given: An instrument is readily capable of causing serious physical injury when it can quickly, easily or at once cause serious physical injury considering the manner in which it is used or threatened to be used. It is not sufficient if it is merely possible for serious physical injury to be caused. The judge denied the request and instead gave the following instruction: Dangerous instrument means anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or physical injury. Defendant now contends that the failure to give this additional instruction constituted reversible error. We do not agree. Essentially, defendant was asking the trial court to define the words “readily capable” to the jury. This term as used in the statute, and, in fact, as explained in defendant’s proposed instruction, is no different from the term when used by laymen. We have stated that “words with common meaning need not be defined where the ordinary definition of the word and the statutory definition of the word are essentially the same.” State v. Barnett, 142 Ariz. 592, 595, 691 P.2d 683, 686 (1984) citing State v. Zaragoza, 135 Ariz. 63, 659 P.2d 22 (1983). We find no error. IV. INEFFECTIVE ASSISTANCE OF COUNSEL Defendant next contends that he was denied his sixth amendment right to effective assistance of counsel. U.S.Const., amend. VI. He bases this claim on two points. First, he maintains that defense counsel should have allowed him to take the stand in his own defense and second, he argues that counsel committed constitutional error by failing to request an intoxication instruction. We do not agree. 1. Failure to Testify In order to succeed on a claim of ineffective assistance, defendant must satisfy a two-step test. First, he must show that counsel’s performance fell below an objective standard of reasonableness as measured under prevailing professional norms. State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985). Second, he must demonstrate that counsel’s performance prejudiced the defense. State v. Lee, 142 Ariz. 210, 214, 689 P.2d 153, 157 (1984). This second prong is satisfied when defendant offers evidence proving 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 less than ‘more likely than not’ but more than a mere possibility.” Id. We have previously had occasion to consider whether a trial attorney’s advice that a defendant not take the stand fell below the prevailing professional norms. In State v. De Nistor, we stated: This court is reluctant to second guess actions taken by trial counsel that go to trial strategy. “We have always held that disagreements as to trial strategy * * * will not support an ineffectiveness claim as long as the challenged conduct could have some reasoned basis.” We recognize that, normally, whether the defendant should testify is a decision that defendant should make. Defendant does not claim, however, that she wanted to testify and was prevented from doing so. It appears instead that she and her attorney agreed on this strategy of silence which she now claims was in error. We do not find that this choice was below objective standards of reasonableness. Defense counsel may have felt * * * that [defendant] would have harmed rather than helped her own defense by testifying. Defense counsel’s performance was reasonable under prevailing norms. 143 Ariz. 407, 415, 694 P.2d 237, 245 (1985) (citations omitted). We have essentially the same situation in the instant case. Defendant does not claim that he asked to testify and was prevented. Rather, he claims that, because of his borderline intelligence, he did not understand what he was doing when he and his attorney adopted their trial strategy. Defendant was adjudged competent to assist in his own defense, however, and thus presumed capable of making the necessary decisions. We do not find that the decision that defendant and his attorney made not to testify fell below the prevailing standards. Additionally, we note that, assuming this decision was in error, defendant was unable to show that this error prejudiced his defense. The case against defendant was strong and defendant does not claim that he would have testified to facts that had not been brought out previously by defense counsel. We find no error. 2. An Intoxication Instruction Defendant next maintains that his attorney’s incompetence was further demonstrated by his failure to request an intoxication instruction. Intoxication is a defense to those crimes committed with an “intentionally” mens rea, see A.R.S. § 13-503; State v. Reffitt, 145 Ariz. 452, 464, 702 P.2d 681, 693 (1985), in this case the attempted armed robbery and the resisting arrest charges. We do not find, however, that defendant was entitled to such an instruction. A defendant is entitled to his requested instruction where his theory is reasonably supported by the evidence. State v. Celaya, 135 Ariz. 248, 253, 660 P.2d 849, 854 (1983) (emphasis supplied). Here, the evidence did not warrant such an instruction. Defense counsel asked three witnesses whether defendant appeared to be intoxicated. Gilmore stated that, although it was possible that defendant was drunk be cause of the violent way he was acting, he did not know whether defendant was intoxicated. The owner of the house that defendant broke into stated that she was not close enough to smell any alcohol on defendant’s breath. Finally, the arresting officer stated that he could not detect any alcohol on defendant’s breath. This evidence was hardly sufficient to support a theory that defendant was under the influence of alcohol when he committed the crimes. Thus, had defense counsel asked for an intoxication instruction, the trial court would have acted properly in refusing to give it. We cannot fault defense counsel for failing to make an essentially futile request. We find no error. V. REQUEST FOR A RULE 32 HEARING After trial, defendant filed a petition for a post-conviction evidentiary hearing pursuant to Rule 32, Arizona Rules of Criminal Procedure, 17 A.R.S., alleging several defects in the trial. Defendant maintained that this hearing was necessary to provide our court with a more complete record on several issues, including the effectiveness of counsel’s representation. The trial court denied this request. Defendant now contends that denying a hearing on the issue of effectiveness was in error and asks us to remand the case for such a proceeding. Rule 32.9(c). Rule 32.1 permits a defendant to institute a proceeding if his “conviction or * * * sentence was in violation of the Constitution of the United States or of the State of Arizona.” If a defendant did not receive adequate representation then his conviction would, of course, be in violation of both constitutions. Pursuant to Rule 32.6(c): The court shall review the petition within 10 days after the petitioner’s reply was due. If, upon reviewing the petition, response, reply, files and records, and disregarding defects of form, it determines that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceeding, it may order the petition dismissed * * *. Otherwise, the court shall direct that the proceeding continue and set a hearing within 10 days. As the comment to that section explains: “[i]f the court finds from the pleadings and records that all of petitioner’s claims are frivolous and that it would not be beneficial to continue the proceedings, it may dismiss the petition.” Here, we find that the trial court acted properly in finding defendant’s claim frivolous. The gist of defendant’s Rule 32 argument is that he informed his attorney that there were several witnesses who would testify that defendant had been walking home when he heard the arresting officer running behind him, and had run into a house where he knew that a man named Oscar Quintana lived. Despite this information and defendant’s continued avowal of innocence, defendant alleges, defense counsel chose not to call these witnesses nor to allow defendant to take the stand. We do not find that these statements raise a colorable claim requiring an evidentiary hearing. First, defendant does not indicate the names of witnesses nor include affidavits containing what testimony they would have offered. See, e.g., State v. Carriger, 132 Ariz. 301, 645 P.2d 816 (1982). Rule 32 does not require the trial court to conduct evidentiary hearings based on mere generalizations and unsubstantiated claims that people exist who would give favorable testimony. Second, this allegation of the availability of exculpatory witnesses is somewhat unbelievable in light of the strong testimony of the arresting officer that he saw defendant commit the crime and never lost sight of him prior to the arrest. Lastly, in order to make a colorable claim of ineffective assistance, a defendant must raise some factors that demonstrate that the attorney’s representation fell below the prevailing objective standards. As we noted, the fact that a defendant and his attorney decide that the defendant not testify is not ineffective per se. Defendant does not allege any factors that would lead us to find that the decision not to testify was made improperly. He merely requests that we grant him a hearing so that trial counsel can fully explain why the decision was made. This reason is insufficient to raise a colorable claim. Although defendant does not appeal the trial court’s denial of an evidentiary hearing on the other issues raised in the Rule 32 petition, we have reviewed the record and find that the trial court acted properly in denying those requests. We find no error. THE CONSTITUTIONALITY OF A.R.S. § 13-604.01 Defendant next argues that A.R.S. § 13-604.01 as applied in this case violates the eighth amendment’s prohibition against cruel and unusual punishment. U.S.Const. amend. VIII, XIV. Defendant recognizes that we have upheld the statute in State v. McNair, 141 Ariz. 475, 687 P.2d 1230 (1984) but argues that the instant case presents a different situation because the victim here was not hurt and the underlying felony was not a completed but only an attempted armed robbery. We do not find these differences to be dispositive. In McNair, we used the four-part test enunciated in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) to determine whether the statute was constitutional. We considered: (1) the gravity of the offense, (2) the harshness of the penalty, (3) sentences imposed on similarly situated defendants in the same jurisdiction and (4) sentences imposed for the same or similar crimes in other jurisdictions. 141 Ariz. at 483, 687 P.2d at 1238. Defendant essentially argues that, under the first part of the test, the crime is less serious in the instant case because no one was hurt. We have previously rejected this argument. In State v. Noriega, 142 Ariz. 474, 690 P.2d 775 (1984), the defendant threatened to use the handgun she was carrying but never did so. In upholding the constitutionality of the sentencing statute, we noted that the fact that no injury had occurred did not make the crime any less serious or grave. We stated: As to the gravity of the offense, we find that appellant’s crimes were very serious. It was fortunate that appellant and her accomplice did not observe White [the victim] during their armed burglary of the Laughlin residence, or he might not be alive today. Appellant’s repeated threats against White with a handgun while fleeing the scene of the crime also indicate her willingness to resort to violence that could lead to serious injury or death. The absence of actual injury is scarcely an accurate measure of the danger appellant poses to society. Id. at 487, 690 P.2d at 788. We find the same reasoning applicable here. Defendant acted in a violent and dangerous manner. Had he been able to break into the cashier’s booth, he probably would have seriously harmed or possibly killed the attendant. We find that his actions were extremely dangerous and grave. Defendant’s second argument that a life sentence is not warranted because he was guilty of an attempted rather than a completed crime goes both to the harshness of the offense and whether his sentence is disproportionate to sentences imposed on defendants in this and other jurisdictions. We do not find a crime any less serious because it was not completed. Defendant acted in a dangerous and violent manner and it was only a fortuity that no one was seriously injured. Nor do we find defendant’s sentence disproportionate to other similarly situated defendants. It is worth noting that one of the purposes of the statute is to deter felons released from probation from committing violent and dangerous crimes. State v. Noriega, supra, at 487, 690 P.2d at 788. In other words, it is the violence that warrants harsh punishment. In Arizona, defendants on probation or parole committing equally violent crimes have received equally harsh sentences. Id. See also State v. Garcia, 141 Ariz. 97, 685 P.2d 734 (1984). Additionally, repeat offenders not on probation or parole committing a class three felony such as attempted armed robbery are treated severely by our legislature. They may receive anywhere from ten to twenty years imprisonment. A.R.S. § 13-604. We do not find the punishment too harsh or disproportionate to other sentences in Arizona. Attempted armed robbery is considered a serious crime, and punished accordingly, in other jurisdictions. For example, a first time conviction may result in six to thirty years in Arkansas (Ark.Stat.Ann. §§ 41-703, -901, -2102), two to twenty years in Alabama (Ala.Code §§ 13A-4-2, 13A-5-6, 13A-8-41), twenty-five years in Iowa (Iowa Code §§ 711.2, 813.1, 902.9), two and one-half to twenty-two and one-half years hard labor in Louisiana (La.Rev.Stat.Ann. §§ 14:27, 14:64) and twenty years in Maine (Me.Rev.Stat.Ann. tit. 17-A §§ 757, 1252). A repeat offender in Florida could receive a sentence of thirty years. (Fla.Stat.Ann. §§ 775.08, 777.04, 812.13). We find defendant’s sentence is proportionate and, therefore, constitutional. We have searched the record for fundamental error pursuant to A.R.S. § 13-4035, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), and find none. Defendant’s convictions and sentences are affirmed. HOLOHAN, C.J., GORDON, V.C.J., and HAYS, J., concur.

OPINION FERNANDEZ, Judge. Appellants, Pima County Board of Adjustment District No. 1 and the individual board members (hereinafter Board) seek to reverse a judgment reinstating a use permit issued by the zoning inspector. The board had determined that appellee’s facility was not a private school and had found the permit issuance to be improper. We affirm the trial court and agree that the facility is a private school within the meaning of the Pima County Zoning Ordinance. In late 1983 appellee VisionQuest applied to the zoning inspector for a use permit for its Pima County Learning Center on River Road north of Tucson. The area is zoned SR or suburban ranch. The use permit was issued March 21,1984. On July 25 the Rillito-River Road Association appealed the issuance of the permit and the Board reversed the zoning inspector after a hearing. VisionQuest then filed suit to enjoin enforcement of the decision and sought a preliminary injunction. Since the injunction hearing was consolidated with the trial de novo on the merits pursuant to A.R.S. § 11-807(D), a judgment in favor of Vision-Quest was rendered. The board appeals from that judgment. We are asked to determine whether or not VisionQuest’s facility constitutes a private school under § 601-k of the Pima County Zoning Ordinance. The permitted uses in an SR zone are the following: one-family dwellings; commercial agricultural uses such as field crops, truck and flower gardening, tree crops, and the raising of livestock and small animals; guest ranches; public parks; public or parochial schools; churches; farm product stands; small airstrips; commercial riding stables or riding schools; hospitals, clinics, dispensaries or sanatoriums; private athletic and sports clubs; racetracks and sports stadiums; resort hotels; veterinary hospitals or commercial kennels; and community stables. Section 601, Pima County Zoning Ordinance. Most of the permitted uses have restrictions as to size, parking facilities and the like, and some require permission of a percentage of property owners within a certain distance of the subject property. Section 601-k, the subsection that is pertinent to this case, reads as follows: “College, community service agency, governmental structure, library, muse um, playground or athletic field, private school, provided that said use shall be located on a site of not less than 10 acres, that the improvements shall occupy not more than 30% of said site, that no playground or athletic field be located closer than 100 feet to any property line, and that all roads and parking area be surfaced with a material which will minimize the creation of dust____” (Emphasis added.) The SR zone is the most restrictive of the county zones. § 2401, Pima County Zoning Ordinance. A co-founder of VisionQuest testified that the program was begun in 1973 as an alternative to children’s corrections institutions. He testified that a child who is placed in the program first spends six to nine months in wilderness experiences which are known as impact programs. When it is determined they are ready for it, they are then placed in a residential center with no more than six other children. After a child moves to a residential center he may then attend the Learning Center during the day, five days a week. Some of the children in the residential centers attend public schools. The children are at the Learning Center from 8:30 or 9:00 a.m. to between 3:30 and 5:00 p.m. According to the Academic Curriculum Guide which was introduced at trial, classes are conducted from 8:30 to 1:15 and physical education is from 1:30 to 2:30. After classes, there are sports activities and maintenance projects. The center is a member of the Independent League and participates in inter-scholastic events with other private schools in the area. The children return to their respective residential centers in the afternoon, and they must spend at least one hour each evening doing homework. The curriculum guide lists classes at different levels in mathematics, English, science and social studies. The students also take one elective, such as performing arts, home economics, horsemanship and Red Cross first aid. The two teachers (there were 14 children at the center at the time of trial) are certified by the Arizona Department of Education to teach emotionally handicapped children. Nearly all the children at VisionQuest have been placed there by court order. They are either juvenile offenders or status offenders, and most have been diagnosed as seriously emotionally handicapped or suffer from a conduct disorder. Most have had disruptive family lives, and a number of them have drug or alcohol problems. Most spend a minimum of a year in placement with VisionQuest. The center is on the approved list of private special education schools of the Arizona Department of Education, and Vision-Quest is a member of the Arizona Association of Private Schools for Exceptional Children. It maintains a relationship with the Tucson Unified School District such that TUSD awards eighth grade certificates to VisionQuest students who meet its requirements, and credits earned at the center will transfer if a student enters a TUSD school. Some of the children at the Learning Center later return to public schools. The zoning ordinance itself contains no definition of either “school” or “private school”. Section 301-b of the Pima County Zoning Ordinance requires undefined terms to be “interpreted according to their common, plain, natural and accepted usage.” The Board contends that a review of the entire ordinance indicates a private school is “an alternative to a public school, with all the characteristics of a public school.” It would restrict the definition to an institution that educates children able to benefit from education in a traditional classroom setting. The Board would permit special services to be made available for those with special needs so long as those needs do not interfere with the student’s ability to cope with a traditional classroom setting. It insists the facility is a detention center rather than a school. We find no evidence to support such a restrictive definition of the term. The Board also points to § 301-f of the Zoning Ordinance which prohibits issuance of a permit which would or might reasonably tend to destroy established economic or social uses of surrounding properties. It contends that the other permitted uses of an SR zone support its assertion that the court’s ruling was in error. There was, however, no evidence on the economic or social uses of the surrounding property to support that contention. The evidence supports the trial court’s finding that the facility is a school according to the common usage of that term. The students are transported to the school in the morning and transported home at night. While they are there, they attend classes in common junior high and high school subjects and participate in after-school athletic events. The credits they earn there apply toward an eighth grade certificate and will transfer to a public school if they later attend one in the Tucson Unified School District. Those characteristics are ones commonly understood to apply to a school. It appears that the primary function of the Learning Center is to educate children. Such a finding is also consistent with the other uses permitted in a suburban ranch zone. Although the zone is the most restrictive of the county zones, it is by no means restricted to purely residential uses. A number of other activities are also permitted in an SR zone as is indicated by the above-listed summary. Although most of the children who attend are placed there by court order they are not in a corrections institution. There are no physical barriers around the site, no locked gates or high fences with concertina wire and such. The students are not free to leave during the day, but that is frequently also true of public schools. The trial court found that the facility was a private school under the definition of former A.R.S. § 15-101(11) which is now found in § 15-101(13). The definition states that “ ‘[pjrivate school’ means a nonpublic institution where instruction is imparted.” The Board contends that definition is inapplicable to zoning since the education laws are totally unrelated to land use. Although the statutes obviously were not enacted to determine questions of zoning, we do find it of significance that the Learning Center is considered to be a school by such entities as the Arizona Department of Education and the Tucson Unified School District. We also note that similar institutions have been determined to be schools for purposes of zoning in other jurisdictions. In Wiltwyck School for Boys, Inc. v. Hill, 11 N.Y.2d 182, 227 N.Y.S.2d 655, 182 N.E.2d 268 (1962), a residential school that had dependent, delinquent and emotionally disturbed children was granted a permit to build dormitories since it was held to be a school. The situation there was somewhat different than here since the New York City school system provided part of the teaching staff of the facility. The case of Crist v. Bishop, 520 P.2d 196 (Utah 1974), however, is more persuasive. The court there held that the facility (which was residential as well) constituted a school. It stated that “[tjhe requisites of such a school are: some physical facility, teachers, a curriculum for study or training, and students who are the objective thereof.” 520 P.2d at 198-199. There is no indication in the Pima County Zoning Ordinance that the term “private school” is intended to mean anything more restrictive than that. Finally, the Board complains that considering the facility to be a school renders meaningless the term “special group foster home" which is another use permitted in an SR zone. § 2431, Pima County Zoning Ordinance. That term is defined as “[a] licensed home suitable for accommodating more than five, but no more than six persons who require special care for physical, mental, or emotional reasons, or who have been adjudicated to be delinquent.” § 432.02, Pima County Zoning Ordinance. That argument, however, is not persuasive. The testimony clearly showed that the Pima County Learning Center is utilized by the students during daylight hours only and for learning and athletic activities. The children do not stay the night but are transported to their respective residential centers in the evenings. They are also not there on weekends. Thus, there was no indication whatever that the facility is any type of “home”. It bears no relationship to a special group foster home as defined in the Zoning Ordinance. Having determined that the evidence supports the trial court’s finding that the Pima County Learning Center constitutes a private school within the meaning of the Pima County Zoning Ordinance, we affirm the judgment in favor of VisionQuest. BIRDSALL, P.J., and HOWARD, J., concur.

OPINION HOWARD, Judge. The issue in this wrongful death action is whether the trial court erred in prohibiting appellant’s expert witness from testifying. We conclude that it did and we reverse. On June 21, 1980, Deputy Bair of the Pima County Sheriff’s Department was driving his patrol unit on Pontatoc Road just north of River Road in Tucson when a vehicle being driven by Alex Barela came across the center line, started to fishtail and would have struck the patrol unit had Deputy Bair not taken evasive action. Deputy Bair made a U-turn and pursued Barela. Deputy Bair suspected Barela of driving while under the influence of alcohol. Near Dodge Boulevard and River Road Barela pulled off onto the shoulder. However, while Deputy Bair was advising the dispatcher of the stop, Barela accelerated and began moving quickly south on Dodge. Bair pursued Barela. A high-speed chase ensued. Barela traveled south on Dodge which had a 35-mile-per-hour speed limit, at speeds ranging from 60 to 100 miles per hour. Unfortunately, at the intersection of Dodge and Glenn Street, Barela struck the vehicle being driven by Vukosava Milana Bell, killing her. The personal representative filed this case against the sheriff, Deputy Bair and the 18-year-old Barela. The action was tried to a jury which returned a verdict in favor of the plaintiff and against Barela in the sums of $500,000 compensatory damages and $3,000 punitive damages. However, the jury returned a verdict in favor of the defendants Dupnik and Bair and against the plaintiff. At the time of this accident the sheriff’s department had a manual which determined the procedures to be employed by its deputies relative to high-speed chases. It provided: “Deputies are expected to discontinue a pursuit when a reasonable law enforcement officer may conclude that continuing the pursuit could pose a serious risk to life or property and that [sic] risk outweighs the value of apprehending the suspect.” George Kirkham testified on behalf of the defendants in relation to this issue. He held bachelor’s and master’s degrees in the field of criminology from California State University at San Jose and a doctorate in criminology from the University of California. Over the years he had on many occasions examined police conduct in the area of high-speed pursuit. He had been involved in over 100 cases that centered on questions of vehicular pursuit. Dr. Kirkham had trained the entire Tallahassee Police Department regarding the elements to be considered in the initiation and continuance of vehicle pursuit and had conducted seminars in various locations on vehicular pursuit and on the factors that should be considered in the continuance of such pursuits. He taught the officers to consider a number of things such as the time of day, the traffic density of the motorists in the immediate area, the character of the area, the type of road, and the use of flashing red lights and siren. The film that Dr. Kirkham produced had been used quite extensively throughout the United States to train police officers. Dr. Kirkham, over the past ten years, had also been involved in emergency vehicle pursuits as an officer either as a driver or as a passenger. Dr. Kirkham testified: “But this type of pursuit, in [sic] the character of the road, the time, the absence of traffic control devices, lights involved, the absence of other vehicles in peril, all this happening in about a minute, I think that that [sic] within the limits of what human beings could do in this very stressful kind of situation, I think the officer was reasonable and tried to stop this person who he already knew was someone who should be gotten off the road, if it could be done safely without injuring other people. You know, he knew that this person was— someone who was driving over the center line and needed to be stopped, and I think — I think this conduct was reasonable and fair. Yes, I do.” Plaintiff sought to call as an expert witness Dr. Leonard Territo, a professor of criminal justice. Dr. Territo would have expressed the opinion that Deputy Bair acted unreasonably in continuing to chase Barela once the speed of the pursuit hit 55 to 60 miles per hour. He based his opinion on the fact that Deputy Bair was chasing only a traffic violator and the fact that the area of Dodge Boulevard between Glenn Street and River Road was a residential area. The foundational predicate for Dr. Terri-to’s testimony was as follows: Dr. Territo was a professor of criminal justice at the University of South Florida at Tampa from 1974 through 1977 and from June 1979 to the date of the trial. He had instructed at St. Petersburg Junior College in the department of police administration and police operations from 1968 through 1970. He was promoted in 1971 to deputy chairman and was simultaneously the director of the Florida Institute of Law Enforcement responsible for continuing education of police officers. From 1964 to the date of the trial, Dr. Territo has taught at police academies at both the recruit and middle management levels. He has instructed police officers in virtually all facets of law enforcement, including patrol techniques and emergency response procedures. In 1967 and 1968 as a Tampa police officer, and from 1968 to 1974 as an instructor at St. Petersburg College, Dr. Territo taught police operations, which included instruction on how a vehicular patrol officer should handle emergency responses, including the factors the officer should take into consideration in responding to emergency traffic situations. Emergency, or “Code 3” responses, are procedures which require a police officer to use lights and siren and authorize an officer to exceed the posted speed limit. For six years, Dr. Territo instructed officers as to what to do and what not to do while driving a patrol vehicle. Additionally, during the last four years prior to trial, Dr. Territo taught courses at the police academy designed to instruct officers on how to deal with job stress, including instruction concerning how to handle emergency driving situations. Dr. Territo started with the Tampa Police Department patrol bureau in 1959, where he remained for thirteen months. He was then transferred to the traffic bureau, where he was a motorcycle officer and accident investigator for twenty months. Thereafter, for approximately the next five years, he was a detective assigned to the detective bureau, after which he was assigned to Tampa's police academy training staff, where he taught homicide investigation and patrol techniques. In January 1977, Dr. Territo took the position of major with the Leon County Sheriff’s Department in Florida. His responsibilities included the jail, records, communications, personnel, training, etc. In October 1977 he was promoted to chief deputy and all divisions within the sheriff’s department came under his responsibility, including the patrol and detective bureaus. During Dr. Territo’s tenure as a major in the Leon County Sheriff’s Department, he was a member of an accident review board which evaluated traffic accidents involving departmental personnel or vehicles, including accidents arising out of high speed pursuits. The accident review board generally evaluated all circumstances of an accident to determine if there was any culpability on the part of the deputy. Dr. Territo was employed with Leon County through June 1979, when he returned to the University of South Florida as a professor of criminal justice. Dr. Territo had been involved in a half dozen high-speed pursuits, two on motorcycles and four in automobiles. The last high-speed pursuit in which he was involved was in 1978 as chief deputy in the Leon County Sheriff’s Department. In 1981, Dr. Territo conducted a study to evaluate high-speed pursuit policies of po lice departments across the country. He sent out 144 questionnaires to major police departments across the nation and received 45 responses. He analyzed and compiled the best of the responses to formulate an ideal policy for police instructors and administrators regarding the factors an officer should consider in high-speed pursuits and emergency responses. His article, entitled “Citizen Safety: Key Element in Police Pursuit Policy”, was published in Trial Magazine, Florida Police Chief Magazine and Campus Law Enforcement Journal. At the time of the trial, the contents of the article were under consideration by the International Association of Chiefs of Police as a training key. The trial court sustained the defendants’ motion to prohibit Dr. Territo from testifying on the ground that while Dr. Territo might be an expert on office policies he did not show any grounds for expertise on the subject of whether or not Deputy Bair acted reasonably under the circumstances. In other words, if the adequacy of Pima County’s policy or manual concerning pursuit were at issue, Dr. Territo would be competent, but he was not competent to testify on the reasonableness of Deputy Bair’s driving because he had never taught any courses in high-speed driving or defensive driving and had never conducted any training of officers in regard to high-speed pursuits. The trial judge pointed out that Dr. Territo had merely run a study regarding different police and sheriff’s departments and what policies they formulated. She reasoned: "... But, I don’t think that the Ph.D. student would be qualified to evaluate whether a particular doctor meets the standard of care for the community in performing open heart surgery, and that’s what you have.” It is blatantly obvious that that is not what plaintiff had here and that the trial judge erred in refusing to allow Dr. Territo to testify while allowing Dr. Kirkham to testify. Rule 702, Rules Of Evidence, 17A A.R.S. provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Whether a witness is competent to testify as an expert is a matter primarily for the trial court and one largely within his discretion. State v. Seebold, 111 Ariz. 428, 531 P.2d 1130 (1975). As far as the expert’s qualifications are concerned: “... All that is necessary is that the potential witness have information from experience, training or education that would be helpful to the present trier. Furthermore, it is not required that the witness ‘have the best possible qualifications, nor the highest degree of skill or knowledge,’ so long as he does have ‘skill and knowledge superior to that of men in general.’ ...” 1 M. Udall and J. Liver-more, Arizona Practice: Law of Evidence § 22 (2d ed. 1982) at 31. While the determination of whether an expert witness is qualified to testify is normally within the discretion of the trial court, that determination is reversible if it is a clear abuse of discretion. Wood v. Stihl, Inc., 705 F.2d 1101 (9th Cir.1983); Garrett v. Desa Industries, Inc., 705 F.2d 721 (4th Cir.1983). Here, Dr. Territo had taught courses on emergency driving, had himself as a police officer engaged in pursuit driving, and had been a member of an accident review board which, among other things, investigated accidents arising out of high-speed pursuit. Furthermore, the article that he had written, which reviewed the policies of various police departments across the country concerning high-speed pursuits, contained factors that the officers should consider in responding to emergency calls and high-speed pursuits. In view of the fact that the trial court let the defendant introduce expert testimony on the issue, it was blatantly erroneous for the trial court to exclude the testimony of Dr. Territo. As we are reversing this case and remanding for new trial, we find it necessary to comment on whether the testimony of either Dr. Territo or Dr. Kirkham as to whether Officer Bair acted reasonably was a proper subject of expert testimony. M. Udall and J. Livermore, supra, § 22 at 28, states: “In a day when expert testimony has become pervasive, it is well to remember the true basis on which it is admitted. It is not, as some current practice suggests, a mechanism for having someone of elevated education or station engage in a laying on of hands, placing an' imprimatur, upon the justice of one’s cause. Rather it is a device allowing the trier to receive information, beyond its competence, useful to the resolution of the dispute before it. * * * Experts are not, in theory, called to tell the jury who should win. They are called, instead, to provide knowledge to the jury to permit the jury rationally to decide the case before it.” (Emphasis' added) The authors recognized that under Rule 704 of the rules of evidence expert opinion evidence is not objectionable because it embraces an ultimate issue to be decided by the trier of fact, but as the authors observed: “But there was a kernel of sense in the older rule. As one approaches the ultimate issues in the case, the trial judge should exercise his discretion with great care to insure that the proposed testimony truly relates to an area of specialized knowledge and that the witness is truly qualified to provide assistance to the trier. This is the burden of the Arizona Committee comment to Rule 704: ‘Some opinions on ultimate issues will be rejected as failing to meet the requirement that they assist the trier of fact to understand the evidence or to determine a fact in issue. Witnesses are not permitted as experts on how juries should decide cases.’ ” M. Udall and J. Livermore, supra, § 26 at 46. We believe that it is within the knowledge of the average juror that a high-speed chase poses more danger to both the participants and innocent bystanders when traffic is heavy, when weather conditions are poor, when it is night, when there is a great deal of pedestrian traffic, when the driver is unfamiliar with the area, when the drivers have less experience in high-speed pursuits, when the pursuit takes place in a residential, school, or business area, and when the driver of the pursued vehicle is under the influence of alcohol. We also believe that it is within the knowledge and experience of the jurors that engaging a bank robber in a high-speed pursuit may be more reasonable than chasing, at high speeds, a person who has failed to come to a complete stop at a stop sign. In short, we do not believe that the opinions of Drs. Territo and Kirkham as to whether or not Officer Bair acted reasonably would be of any assistance to the trier of fact since no special knowledge is required. See Shaner v. Tucson Airport Authority, Inc., 117 Ariz. 444, 573 P.2d 518 (App.1977). This does not mean that these experts cannot testify as to other matters where expert testimony would be helpful to the jury. Reversed and remanded for further proceedings. BIRDSALL, P.J., and FERNANDEZ, J., concur.

OPINION HOWARD, Judge. Appellant filed a special action in the superior court alleging that appellee, The Civil Service Commission of the City of Tucson (Commission), had abused its discretion and exceeded its jurisdiction in the classification of her position with the City of Tucson and that she was denied a fair hearing before the Commission when one of its members refused to recuse himself. After a hearing, the trial court affirmed the decision of the Commission. The record shows that the position of Citizen Participation Administrator was established in 1972. In January 1976 the position of Citizen Participation Director was established and Fred Acosta was appointed to that position. In 1975, when the Citizen Participation Office became a part of the city manager’s office (previously it had been part of the Urban Resources Coordination), it had a budget of $229,278, which was soon raised to $302,182, and a staff of 19 employees. In July 1978 Acosta resigned from his position as Citizen Participation Director. At the time of his resignation, the budget for the office had dwindled to $94,488 and the office staff had been reduced to only four employees, including the head of the office. At the time of Acosta’s resignation there were two positions in that office. There was one position entitled Citizen Participation Director and another entitled Citizen Participation Administrator. The administrator position was not staffed at that time, and had not been staffed for one year. After Acosta’s resignation, and after the reduction in paid staff from 19 to 4, appellant was offered the position of Citizen Participation Administrator, which she ultimately accepted. On the basis of these and other facts, appellant filed a lawsuit in the United States District Court in which she alleged violation of her civil rights, specifically sex discrimination. Finding that appellant’s position with the city had been wrongfully retitled and that her salary had been reduced without the approval of the mayor and council, Judge Richard M. Bilby of the Federal District Court found that appellant was entitled to damages based on the difference between what she was being paid and what Acosta was being paid until such time as appellant’s salary range was properly presented to the mayor and council for action. In response to the federal district court decision, the city hired a consulting firm to re-evaluate appellant’s job. The re-evaluation resulted in a final report submitted by John Shannon to the city. Shannon stated in his report that appellant is assigned full first-line supervisory responsibility as well as functional management responsibility for the Citizen Participation Office.” He recommended that her position continue as classified and described, in other words, as “Administrator” but that her salary be raised by five per cent so that her pay would be 20 per cent higher than that of the highest paid employee in her office. After a hearing before the Commission at which appellant and her attorney were present and were allowed to participate, the Commission voted four to one that the revised Citizen Participation Administrator class specification be established at a salary range of 124, which was the recommendation of the outside consultant. Appellant first contends that the trial court erred in affirming the Commission because the Commission failed to follow the written personnel department policies. We do not agree. The written Operating Procedure of the personnel department of the city defines the word “administrator” as: “a title which designates the functions involved in the operation of a division and is primarily (80%) management of that position.” (Emphasis added) The word “director” is defined as: “a title which designates the functions involved in the management of a department or such other organization as the City Manager may designate.” (Emphasis added) Since Shannon found that appellant was assigned full first-line supervisory responsibility as well as functional management responsibility for the office, appellant concludes that these findings conclusively establish that her position was that of a director and not an administrator and that the Commission acted arbitrarily and capriciously in not classifying her as a director. We are unable to agree with this conclusion. The record conclusively shows that her office was a division in the city manager’s office and was not a department. In order for her to be a director, she had to manage a department or such other organization as the city manager might designate. The city manager did not designate her organization as one which required the functions of a director. Shannon’s description of her job did not make her a director. The record supports the trial court’s conclusion that the Commission did not act either arbitrarily or capriciously nor did it exceed its jurisdiction. At the commencement of the Commission hearing appellant requested that Mr. Lininger, a commissioner, excuse himself for alleged bias. Appellant’s attorney told the Commission that this bias came from testimony given in the federal district court case by an assistant personnel director, Jack Redavid. Redavid testified that Lininger had some pretty strong feelings about the salary and the reclassification being too high. According to him, Lininger had discussed the matter with the personnel department and was pretty well predisposed about it. Appellant’s attorney also read to the Civil Service Commission portions of the transcript of the federal district court case, in which Judge Bilby expressed his feeling that Lininger was biased and prejudiced. Lininger was asked by the chairman of the Commission whether he thought he could be objective when it came to a revision of the Citizen Participation Administrator class specification in review of salary level. Lininger stated that he could. The transcript of the hearing before the Commission shows that Lininger said little or nothing during the whole hearing. The superior court found that there was no showing that Lininger could not perform his functions as a member of the Commission. We agree with this conclusion. Administrative hearing officers are presumed to be fair and can only be disqualified upon a showing of actual bias. Martin v. Superior Court, 135 Ariz. 258, 660 P.2d 859 (1983). The mere formation of an opinion and the expression of that opinion have been held not to disqualify an officer or agency from passing upon the merits of a particular controversy. Federal Trade Commission v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948); United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941); see also 1 Am.Jur.2d Administrative Law § 65. Affirmed. LIVERMORE and HATHAWAY, JJ., concur. . This case was subsequently appealed to the Ninth Circuit which first reversed the district court. It then set aside its appellate decision because it did not have jurisdiction due to the fact that Judge Bilby did not resolve all the claims that were before him. . Lininger was never called to testify in the federal court.

OPINION HATHAWAY, Judge. This appeal arises out of two forcible detainer actions filed by appellee (Phelps Dodge) against two striking miners, appellants (Galvez and Puffer), consolidated on appeal. The cases were heard in different divisions of the superior court. Cross-motions for summary judgment were filed and following oral argument in each, Phelps Dodge’s motion for summary judgment was granted and appellants’ motions were denied. In the Puffer case, Pima County Superior Court cause number 211979, judgment was entered awarding Phelps Dodge possession of its premises, ordering Puffer to vacate the premises and ordering each party to bear their own costs and attorney’s fees, but expressly declining to make findings as to unpaid rent due. In the Galvez ease, Pima County Superior Court cause number 211980, the judgment entered in favor of Phelps Dodge ordered Galvez to vacate Phelps Dodge’s property, awarded Phelps Dodge all due rent and held that the issue of entitlement to attorneys fees was not cognizable in forcible detainer proceedings and therefore denied Phelps Dodge’s request for attorney’s fees. Phelps Dodge cross-appeals on the latter question. This court has jurisdiction over the appeal and cross-appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(B). The parties agree that the forcible detainer actions arise out of strike activities against Phelps Dodge at its mine in Ajo, a company town. Phelps Dodge is the primary, and almost exclusive, employer in Ajo. It also' owns most of the property, including the housing. Phelps Dodge leased the premises at issue to Galvez and Puffer as company employees. The written residential rental agreement with Puffer is dated April 15, 1980, and the Galvez agreement is dated January 15,1980. Pursuant to both agreements, the respective properties were rented on a week-to-week tenancy basis. Both agreements provide in paragraph 9 that either the landlord or the tenant may terminate the agreement for any reason upon 10 or more days’ written notice: “Whether or not a breach of or default under this lease has occurred or is continuing, Tenant and Company each shall have the right to terminate this lease by a written notice delivered to the other party at least ten (10) days prior to the termination date specified in the notice. In addition to Company’s rights and remedies under this Section 9 and under other provisions of this lease and without in any way limiting the right of Company to terminate this lease as provided in the immediately preceding sentence hereof, Company hereby reserves unto itself all the rights and remedies of a landlord at equity and under applicable law.” In statements given in their depositions, both appellants acknowledged that they understood that the clause gave them, as well as Phelps Dodge, the right to terminate the agreement at any time by giving the prescribed notice. Puffer was notified on July 23, 1983, that he was discharged for alleged strike misconduct. Galvez was notified on July 19, 1983, that he was not acceptable for recall from layoff because of alleged strike misconduct. In accordance with the agreements, Phelps Dodge gave written notice of its intent to terminate the tenancies. The termination notice was given to Puffer on August 3, 1983, and to Galvez on August 13, 1983. The notices informed the tenants that their week-to-week leases would be terminated and advised them of the effective date of termination and that they must quit and surrender the premises on or before such date. Appellants acknowledged receipt of the notices, but refused to vacate the premises. Consequently, Phelps Dodge brought these forcible detainer proceedings. Thomas Keller, the Phelps Dodge employment/rental agent in Ajo, had authority to terminate rental agreements for various reasons including flagrant violations of the agreements, a separation from the company payroll for any reason, or a failure to pay rent. He testified: “... primarily the housing is designed for active employees and that was — anytime we had one separated from the payroll, for, what, any reason, retirement, discharge, quitting, we would give them notice of house termination as a matter of policy. Give them 30 days to vacate the premises and, of course, if we went into — luckily we didn’t have too many cases where we would have to go into eviction or forcible detainer action. * * * S|C * 3jt ... Again, housing is limited and primarily designed for active employees.” Thus, Phelps Dodge’s policy is to provide housing primarily for active employees and when employees are separated from the payroll, company housing appears typically to be terminated. This is Phelps Dodge’s asserted basis for termination of appellants’ rental agreement. Union negotiating representatives complained during collective bargaining negotiations about certain rental agreement termination notices that had been received by union members. The matter was discussed between Phelps Dodge and the union and the termination policy was modified in a letter dated September 12, 1983, to the chairman of the union bargaining committee. The letter provided that if an employee disputes his or her discharge or loss of recall eligibility by filing a charge against Phelps Dodge with the National Labor Relations Board (NLRB), Phelps Dodge would proceed to recover possession of its rental housing from such individual if that person remained discharged or ineligible for recall after the case had been “completed.” Completion was defined to include a decision of a regional director of the NLRB not to issue a complaint regarding a discharge or decision not to recall. Phelps Dodge’s position is that its decision to modify its rental agreement termination policy did not affect appellants because the policy modification did not occur until after the appellants’ rental agreements had been terminated, and in any event, appellants’ cases had already been “completed” within the meaning of the September 12, 1983, letter, since the regional director of the NLRB had issued his letter finding no violation by Phelps Dodge and declined to issue a complaint on behalf of appellants. Appellants raise the following issues on appeal: 1. Did both courts err in granting judgments in favor of Phelps Dodge on the issue of possession while denying appellants opportunities to raise equitable defenses and defenses based upon the Arizona Residential Landlord/Tenant Act? 2. Did both courts err in granting summary judgment for Phelps Dodge on the right of possession where there were disputes as to material facts and inferences? 3. Did the court err in the Galvez case by denying appellant's right to present evidence regarding the wife’s right to continue to rent the property as an employee of Phelps Dodge? 4. Did the court err in the Galvez case by granting a judgment for unpaid rent when there were disputed facts as to whether the rent was due? I. Appellants contend that in the two forcible detainer actions, they sought and were denied opportunities to raise defenses to Phelps Dodge’s right to possession. Appellants allege that Phelps Dodge was seeking possession in bad faith and in retaliation for the tenants’ assertions of their rights. They point out that in the Galvez case the trial judge specifically held that the employer-employee relationship between the parties and the fact that appellants were on strike against Phelps Dodge were irrelevant. These issues, appellants argue, were at the core of the defenses of bad faith and retaliation and their exclusion denied them the right to present their own evidence on these issues. They point out that the trial judge in the Puffer case implicitly reached the same conclusion by ruling only on the Phelps Dodge motion for summary judgment and the narrow issues presented therein. Phelps Dodge responds that the trial courts properly refused to hear appellants’ defenses in the forcible detainer proceedings because, as a matter of state law, those defenses did not arise out of the Arizona Residential Landlord/Tenant Act (ARLTA) or the parties’ lease agreement. Additionally, appellants contend that Phelps Dodge terminated the lease agreements in an attempt to interfere with or retaliate against the appellants’ union activities and participation in the labor strike. Their position, in essence, was that Phelps Dodge’s action constituted an interference with appellants’ rights guaranteed them by section 7 of the NLRA 29 U.S.C. § 157 (1973). Appellee answers that such interference, if any, with appellants’ labor activities is not within the purview of ARLTA. We agree with appellee’s position. The NLRA provides: “The [National Labor Relations] Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise.” (Emphasis added) 29 U.S.C. § 160(a). This preemption doctrine has been applied to state courts by the United States Supreme Court in San Diego Building Trades Council, Etc. v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), where the court stated: “When an activity is arguably subject to § 7 or § 8 of the Act, the states as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” 79 S.Ct. at 780. Because section 7 of the NLRA protects the type of activity upon which appellants base their defenses, the NLRB has the sole and exclusive jurisdiction to entertain these claims. Id. With regard to appellee’s position that appellants' defenses do not arise out of the ARLTA, it should first be observed that the Act specifies the retaliatory conduct of the landlord which is prohibited in A.R.S. § 33-1381, which provides: “A. Except as provided in this section, a landlord may not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for possession after any of the following: 1. The tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health and safety. 2. The tenant has complained to the landlord of a violation under § 33-1324. 3. The tenant has organized or become a member of a tenants’ union or similar organization. 4. The tenant has complained to a governmental agency charged with the responsibility for enforcement of the wage-price stabilization act. B. If the landlord acts in violation of subsection A of this section, the tenant is entitled to the remedies provided in § 33-1367 and has a defense in action against him for possession. In an action by or against the tenant, evidence of a complaint within six months prior to the alleged act of retaliation creates a presumption that the landlord’s conduct was in retaliation. The presumption does not arise if the tenant made the complaint after notice of termination of the rental agreement. ‘Presumption’, in this subsection, means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence. C. Notwithstanding subsections A and B of this section, a landlord may bring an action for possession if either of the following occurs: 1. The violation of the applicable building or housing code was caused primarily by lack of reasonable care by the tenant or other person in his household or upon the premises with his consent. 2. The tenant is in default in rent. The maintenance of the action does not release the landlord from liability under § 33-1361, subsection B.” It is apparent that appellants’ retaliation claim has no basis in the act which lists four specific tenant activities and provides if a tenant engages in any of those activi ties and a landlord thereafter institutes an action for possession, such action could be deemed retaliatory. Cf. Van Buren Apartments v. Adams, 145 Ariz. 325, 701 P.2d 583 (1984). Appellants contend that they specifically come within the provisions of A.R.S. § 33-1381(A)(3) which states that a landlord may not retaliate by bringing an action for possession after: “The tenant has organized or become a member of a tenants’ union or similar organization.” Appellants argue that a tenant’s union is an organization of tenants which bargains with a common landlord over the terms and conditions of their tenancy. They contend that they were members of precisely such an organization, i.e., their respective labor unions. We disagree. Their union membership was far beyond that of a mere tenants’ union which we believe is envisioned in the act. Nor do we conceive their union, which presumably deals with the broad spectrum of employer-employee relationships, to be a similar organization. The ARLTA lists very specific types of tenant activity and provides that if tenants are engaged in such activity and a landlord thereafter institutes possessory proceedings, those proceedings could be deemed retaliatory. The type of conduct detailed in the statute is not borne out by the record. We conclude, therefore, that appellants are not within the class of persons included within the ambit of the statute. The act is calculated to protect tenants from retaliation for conduct by the tenant with respect to the tenancy. Forcible detainer affords an expeditious summary remedy for possession unencumbered by collateral controversies. The act does not alter that objective. Mead, Samuel & Company, Inc. v. Dyar, 127 Ariz. 565, 622 P.2d 512 (App. 1980). II. Appellants contend that the summary judgments were erroneously awarded because there are disputes regarding material facts and inferences as to whether appellee waived the notice terminating appellants’ tenancies. The waiver argument stems from labor discussions relative to the suspension of the processing of eviction actions with respect to discharged strikers. As a result of those negotiations, the following letter from M.P. Scanlon, vice president of Phelps Dodge, was sent to Alex Q. Lopez, chairman of Phelps Dodge’s national negotiating committee on September 12, 1983: “Per your request at last Thursday’s bargaining session, this will set forth the measures Phelps Dodge Corporation intends to take to make Company housing available to its newly-hired employees at Ajo and Morenci: 1. A number of former employees at each location have been or may be discharged by the Company for strike-related misconduct, and a further number of laid-off ex-employees at each location have been or may be notified that they are no longer eligible to be recalled to employment because of strike-related misconduct. In the case of any such person who is a tenant in Company rental housing and who remains discharged or ineligible for recall after the handling of his case has been completed, the Company intends to proceed promptly by whatever means are necessary, including eviction, to recover possession of its rental property. For the purposes of this paragraph a failure to appeal the denial of a grievance to arbitration within the applicable time limits, the decision of an arbitrator or the National Labor Relations Board or a panel thereof or the decision of the Regional Director of the NLRB not to issue a complaint will be regarded as completing the handling of a case. Until the handling of a person’s case has been completed, he or she will be treated in the same manner as other strikers, as set forth in paragraph 2 below. 2. The company intends to make suitable rental housing available to all of its employees, including newly-hired employees, at Ajo and Morenci who wish to avail themselves of it. If the Company determines that, in order to accomplish that aim, it is desirable to require certain strikers who have been permanently replaced to vacate Company rental housing, the Company will cancel the lease agreements with such persons and take such other steps, including eviction, as are necessary to make suitable Company rental housing available to our current employees. Any such actions will be confined to the numbers and types of rental units required, as determined by the Company, except that the Company reserves the right also to recover possession of its rental property from any tenant who is or becomes delinquent in his rental payments, or who is or becomes an undesirable tenant for any other reason.” Assuming that the arrangement to suspend eviction proceedings is cognizable in this forcible detainer action, a question which we consider to be fairly debatable in view of the NLRA implications, the record discloses that appellants do not fall within the class of individuals included in such waiver because their cases had been completed within the definition of the September 12, 1983, letter. Appellants contend that appellee violated its policy of not evicting discharged employees while they had pending grievances regarding the validity of their discharge. As we understand appellants’ argument, it is that as a result of this policy, appellee was estopped from maintaining the forcible detainer actions. We disagree. If this difference is cognizable in the present forcible detainer actions, the letter of September 12, 1983, apprised tenants of appellee’s most recent position with respect to forcible detainer actions which had evolved from the recent bargaining session. We find nothing in the record which supports appellants’ estoppel theory. The lease termination provisions are permissible, A.R.S. §§ 33-1314(A) and 33-1375(A), and were complied with. III. At the time the summary judgment was granted in the Galvez case, Mrs. Galvez was a regular employee of Phelps Dodge in a subsidiary business entity. It is contended that because of her employment she was entitled to rent company housing. The trial judge ruled, “... the fact that the Defendant/Wife, Nora Galvez, is still an employee of Plaintiff Corporation is not relevant to the right of possession of the premises.” By so ruling, it is argued that the court denied any opportunity to present an equitable defense based on the wife’s right to assume the lease and continue the tenancy in her own name. We disagree. The residential rental agreement expressly provides that the lease may be terminated for any reason upon 10 days’ written notice. Neither the agreement nor the act provides that either parties’ termination rights are affected by the nature of appellant’s employment status. The trial court properly determined that the employment status of Mrs. Galvez had no relevancy to any of the issues cognizable in the forcible detainer proceedings. IV Appellants contend that the trial court erred in the Galvez case by granting a summary judgment for unpaid rent where there were disputed facts as to whether all the rent was in fact due. No reference to the record is given as to where the facts are disputed. It is conceded at oral argument that the amount of unpaid rent is undisputed. Although appellees do not respond to this issue, we find it is not a debatable issue and affirm. CROSS-APPEAL The trial court in the Galvez case found that the question of whether or not appellee was entitled to reasonable attorney’s fees was an issue not cognizable in the forcible detainer proceeding and they were denied. We disagree with appellants’ position that this matter was not raised in the trial court. The matter was brought before the court and it ruled against appellee. Appellants concede that DVM Co. v. Stag Tobacconist, Ltd,., 137 Ariz. 466, 671 P.2d 907 (1983), was brought to the trial court’s attention and read by it. There, the Arizona Supreme Court held that at the time of the trial there were no statutory provisions allowing attorney's fees as part of the judgment in a forcible entry and detainer action. The supreme court made its decision applicable only to matters brought prior to the effective date of the statutory amendment of A.R.S. § 33-1315(A)(2): “... making a prevailing party in a forcible entry and detainer action eligible to be awarded attorney’s fees pursuant to A.R.S. § 12-341.01 regardless of whether the rental agreement provides for such an award.” 137 Ariz. 466, 467 n. 1, 671 P.2d 907. An addendum to the Galvez residential rental agreement expressly provides that the prevailing party in a forcible detainer action may be awarded attorney’s fees. Therefore, appellee was eligible to recover its attorney’s fees under that agreement. The judgment against Puffer, Pima County Superior Court cause number 211979, is affirmed. The judgment against Galvez, Pima County Superior Court cause number 211980, is reversed as to the finding that the issue of entitlement to attorney’s fees was not cognizable in forcible detainer proceedings and is remanded for further proceedings on the issue of attorney’s fees. BIRDSALL, C.J., and HOWARD, J., concur.

GORDON, Vice Chief Justice: This petition for review arises out of a juvenile court proceeding in which petitioner minor was charged with child molestation, A.R.S. § 13-1410. The juvenile court found that a commission of child molestation was established and adjudged the juvenile to be delinquent. The minor’s counsel filed a timely Notice of Appeal, but failed to include a statement of grounds for the appeal with supporting memorandum in compliance with Rule 25(b), Juvenile Court Rules of Procedure, 17A A.R.S. Consequently, the Court of Appeals dismissed the minor’s appeal on February 29, 1984. The minor’s first counsel thereafter withdrew from representation. On March 8, 1984, new counsel filed a Motion for Reconsideration of the Appeals Court order dismissing the appeal; the court denied this motion on May 9, 1984. Subsequently, a petition for review was denied on July 17, 1984. About two months later, September 11, 1984, the minor’s second attorney withdrew from representation. The minor’s third and present counsel assumed representation on November 21, 1984. About three weeks later, on December 14, 1984, counsel filed a Motion to Set Aside Order Adjudicating Delinquency, seeking a delayed appeal under Rule 32, Arizona Rules of Criminal Procedure, 17 A.R.S. or alternatively under Rule 60(c), Arizona Rules of Civil Procedure, 16 A.R.S. On January 10, 1985, the Juvenile Court entered an order granting the delayed appeal under Rule 32, stating: “THE COURT FINDS that the minor’s failure to appeal from the judgment of this Court within the prescribed time was without his fault. The Court will apply Rule 32, Post Conviction Relief, of the Rules of Criminal Procedure, as being appropriate. * * * * * * THE COURT FINDS AND ORDERS that a delayed Appeal is allowed.” On January 25, 1985, the state challenged the above ruling by Special Action filed in the Court of Appeals. About one month later, on February 27, 1985, the Court of Appeals granted the state’s requested relief, vacating the delayed appeal, finding: “It appearing to the Court that although the juvenile court possesses the power to grant a juvenile a delayed appeal in an instance where the juvenile has been precluded from obtaining appellate review though no fault of his own, In the Matter of Maricopa County Juvenile Action No. J-73355, 110 Ariz. 207, 516 P.2d 580 (1973), the ‘orderly administration of justice’ referred to in the cited decision demands that the motion for a delayed appeal be filed promptly. The granting of the delayed appeal in this case was an abuse of the respondent court’s discretion since the delayed appeal was sought almost one year after the original appeal was filed and almost five months after the petition for review of the dismissal of the original appeal was denied by the Arizona Supreme Court. Therefore, the January 10,1985, order of the respondent court allowing the delayed appeal is vacated.” Shortly thereafter, the minor filed the instant Petition for Review. We granted review to clarify the procedure for seeking a delayed appeal in juvenile cases. A juvenile’s right to appeal is authorized under Rule 25, Juvenile Court Rules of Procedure, 17A A.R.S. “Rule 25. Time Within Which An Appeal May Be Taken and Notice Thereof (a) An appeal must be taken within 15 days after the final order is entered in the minutes of the juvenile court. There is no requirement that a final order be in writing and signed by the judge before an appeal can be taken. (b) An appeal may be taken only by filing with the Clerk of the Superior Court a written notice of appeal which specifies the party taking the appeal and designates the particular matter appealed from, together with a concise statement of the grounds for the appeal supported by a memorandum of authorities. If oral argument is requested, it shall be separately indicated at the time of filing the notice of appeal. The juvenile court rules, however, do not provide a procedure for the juvenile to obtain a delayed appeal. Such a procedure is provided for in criminal cases under Rule 32, Rules of Criminal Procedure, 17 A.R.S. The minor argues that Rule 32 should govern a juvenile’s right to seek a delayed appeal. We disagree. A juvenile delinquency proceeding is neither criminal nor penal in nature, and the objective of the juvenile system is the protection and rehabilitation of the child. In re Maricopa County Appeal No. J-68100 v. Haire, 107 Ariz. 309, 486 P.2d 791 (1971); Arizona State Dept. of Public Welfare v. Barlow, 80 Ariz. 249, 296 P.2d 298 (1956). See A.R.S. § 8-207 (order of juvenile court shall not be deemed a conviction of crime or impose any civil disabilities ordinarily resulting from a conviction). Thus, it has been consistently held that the Rules of Criminal Procedure are not applicable to juvenile proceedings. See In re Appeal in Maricopa County Juvenile Action No. J-86715, 122 Ariz. 300, 594 P.2d 554 (App.1979); In re Appeal in Yavapai County Juvenile Action No. 7707, 25 Ariz.App. 397, 543 P.2d 1154 (1975). Although the juvenile court rules provide no rule comparable to Rule 32, the juvenile may seek a delayed appeal under Rule 16(a), Rules of the Supreme Court, 17A A.R.S. “Rule 16. Motions to Take Delayed Appeals and Procedure of Criminal Appeals 16(a) Motion to take delayed appeal. A defendant who has, without fault on his part, failed to take an appeal within the sixty days prescribed by Rule 348 of the Rules of Criminal Procedure [see current Rule 31.3] may, by written motion supported by affidavit, apply to this court for an order permitting him to take a delayed appeal. The clerk shall forthwith notify the attorney general who shall respond to such motion within five days. * 4 * ft This Court in In re Maricopa County Juvenile Action No. J-73355, 110 Ariz. 207, 516 P.2d 580 (1973) has already held that a juvenile may seek a delayed appeal under Rule 16(a). We determined that without a right to seek a delayed appeal the juvenile could lose substantive rights through no fault of his own in failing to appeal appropriately. We recognize that Rule 16 as it pertains to the granting of delayed appeals in criminal cases has been superseded by Criminal Rule 32 which delegates such authority to the superior court. See State v. Rodriquez, 27 Ariz.App. 689, 558 P.2d 717 (1976). Rule 16, however, has not been abrogated and thus still governs juvenile delayed appeals. Therefore, a juvenile may seek relief in the court of appeals by filing a motion for a delayed appeal with supporting affidavit. In this case, the minor erroneously sought such relief in the superior court instead of the appellate court. Since this issue has found its way up to this Court, however, we will dispose of it now. The juvenile argues that he was entitled to a delayed appeal because his counsel was ineffective in filing the appeal which caused it to be dismissed through no fault of his own. A juvenile’s right to effective counsel on appeal has not yet been decided in Arizona, and there is no authority directly on point resolving this issue. The United States Supreme Court, however, has decided that due process and a right to counsel extends to a juvenile delinquency proceeding. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The Court rationalized that there was no material difference between the adult and juvenile proceedings insofar as the need to protect their liberty interests: “A proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child ‘requires the guiding hand of counsel at every step in the proceedings against him.’ Just as in Kent v. United States, supra, 383 U.S. [383 U.S. 541] at 561-562, 86 S.Ct. [86 S.Ct. 1045, 1054 and n. 22] at 1057-1058 [16 L.Ed.2d 84 (1966.)], we indicated our agreement with the United States Court of Appeals for the District of Columbia Circuit that the assistance of counsel is essential for purposes of waiver proceedings, so we hold now that it is equally essential for the determination of delinquency, carrying with it the awesome prospect of incarceration in a state institution until the juvenile reaches the age of 21.” Application of Gault, 387 U.S. at 36, 87 S.Ct. at 1448, 18 L.Ed.2d at 551. We must determine whether this rationale extends to a juvenile’s appeal. The issue of effective appellate counsel has been decided in the criminal system in Evitts v. Lucey, — U.S. -, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). The Supreme Court determined that a defendant, pursuing his first appeal as of right, is guaranteed the right to counsel as a minimum safeguard to make his appeal adequate and safe under due process of law. The Court concluded that a first appeal as of right is not adjudicated in accord with due process if defendant’s attorney is not effective. The Court rationalized that a defendant on appeal must face an adversary proceeding, which like a trial is governed by intricate rules and procedures, that to a lay person would be hopelessly forbidding. “An unrepresented appellant — like an unrepresented defendant at trial — is unable to protect the vital interest at stake.” Evitts v. Lucey, — U.S. at -, 105 S.Ct. at 836, 83 L.Ed.2d at 830. In the criminal system, the State of Arizona gives the juvenile a nondiscretionary direct appeal as of right. See A.R.S. § 8-236. To protect this right, we believe that due process extends to safeguard a juvenile’s appeal at least through the process of perfecting the appeal. The juvenile, perhaps even more inexperienced at protecting his rights than an adult appellant, faces an appeal filing process with intricate rules and requirements that would be impossible for him to fulfill without the guidance of counsel. An unrepresented juvenile could easily lose his appeal. We thus hold that due process and the right to counsel extend to the juvenile’s first appeal as of right. Furthermore, such appeal is not adjudicated in accord with due process if the juvenile’s appellate counsel is not effective. We must next determine if the juvenile’s retained counsel was effective. Counsel failed to file a statement of grounds with supporting memorandum as expressly required by Juvenile Rule 25; thus the juvenile’s appeal was dismissed. Assuming the existence of meritorious grounds for the appeal, we believe that it was per se ineffective to fail to perfect the juvenile’s appeal. Cf. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Counsel’s failure to follow a simple and explicit court rule that would lead to such drastic consequences as dismissal compels this finding. A reasonably competent attorney can easily comply with the procedural requirements of Juvenile Rule 25(a). How to perfect an appeal is something that all lawyers should know and be able to do. In this case, we have read the file and believe a prima facie statement of grounds can be made by the minor. Additionally, the juvenile cannot be bound by his attorney’s deficient act. See Burton v. State, 455 N.E.2d 938 (Ind.1983). The juvenile has no other remedy to gain his freedom. Although in a civil case counsel can be sued for damages for negligence, it would not do a minor adjudged delinquent much good to know he could sue his lawyer for damages. See Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). Denial of freedom cannot be measured in dollars and cents. Thus the appeal was lost without the fault of the minor. The Court of Appeals found that the delayed appeal was not filed promptly pursuant to In re Maricopa Juvenile Action No. J-73355, supra. We disagree. While we agree that a motion for a delayed appeal must be filed promptly, such a determination is largely dependent on the facts in each case. Five months elapsed between the denial of the petition for review, which was the final attempt to rectify original counsel’s alleged error, and the filing of a Motion to Set Aside Order Adjudicating Delinquency. During this time the minor’s second counsel withdrew and present counsel was retained, who filed for the delayed appeal relief within three weeks after his retention. This action was prompt. In re Maricopa County Juvenile Action No. J-73355 is distinguishable since a delayed appeal was not sought until after the juvenile had already been transferred for adult prosecution. We thus hold that the juvenile is entitled to a delayed appeal. The order of the Court of Appeals granting special action relief is vacated. The juvenile court is ordered to take such action in furtherance of the appeal as required by the juvenile rules. HOLOHAN, C.J., and HAYS, CAMERON and FELDMAN, JJ., concur. . We also hold that Rule 60(c), Rules of Civil Procedure, 16 A.R.S., does not govern a juvenile’s right to a delayed appeal. . § 8-236. Appeals A. Any aggrieved party in any proceeding under this title may appeal from a final order of the juvenile court to the court of appeals in the manner provided in rules of procedure for the juvenile court as promulgated or approved by the Arizona supreme court, except the name of the child shall not appear in the record of the appeal, the juvenile court record number assigned to that case substituting for the name. . Counsel must also be effective whether retained or appointed. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). See McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, reh'g denied 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967). . In this case counsel ineffectiveness in perfecting the juvenile’s appeal is clear. In other cases, where ineffectiveness is not evident, it may be necessary to remand to the trial court for an evidentiary hearing. . In comparison, we note that the federal and state courts have overwhelmingly found a defendant’s criminal appellate counsel to be ineffective when he failed to perfect the defendant’s appeal. See, e.g., Evitts v. Lucey, — U.S. -, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (due process extends to criminal appeals); Perez v. Wainwright, 640 F.2d 596, 598 n. 3 (5th Cir. 1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1759, 72 L.Ed.2d 168 (1982); Cleaver v. Bordenkircher, 634 F.2d 1010 (6th Cir. 1980), cert. denied sub nom.; Passmore v. Estelle, 594 F.2d 115 (5th Cir. 1979), cert. denied 446 U.S. 937, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980); Cantrell v. Alabama, 546 F.2d 652 (5th Cir.), cert. denied, 431 U.S. 959, 97 S.Ct. 2687, 53 L.Ed.2d 278 (1977); Macon v. Lash, 458 F.2d 942 (7th Cir. 1972); Hill v. Page, 454 F.2d 679 (10th Cir.1971); Blanchard v. Brewer, 429 F.2d 89 (8th Cir. 1970); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978) (per curiam); Erb v. State, 332 A.2d 137 (Del.1974); Hines v. United States, 237 A.2d 827 (D.C.1968); State v. Erwin, 57 Haw. 268, 554 P.2d 236 (1976); Burton v. State, 455 N.E.2d 938 (Ind. 1983); Wilson v. State, 284 Md. 664, 399 A.2d 256 (1979); People v. Gonzalez, 47 N.Y.2d 606, 419 N.Y.S.2d 913, 393 N.E.2d 987 (1979).

OPINION CORCORAN, Judge. Hilaire LaBerge appeals from a judgment of default entered against him in a breach of contract action. He contends that service was not valid under rule 4(d)(1), Arizona Rules of Civil Procedure, or, alternatively, that the trial court should have dismissed the action or granted a new trial. We find that service was valid and that the trial court did not abuse its discretion. We affirm. I The threshold and critical issue in this case is whether LaBerge was properly served under the second clause of rule 4(d)(1), which provides that service may be made “by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.” On appeal, the reviewing court will determine whether there is evidence from which the trial court could conclude that a particular location is the person’s “dwelling house or usual place of abode” based on the facts specific to that case. French v. Angelic, 137 Ariz. 244, 669 P.2d 1021 (App.1983). Those facts are as follows. On July 17, 1982, LaBerge signed two contracts with Audrey Marks providing that he would purchase her leasehold and fixtures in an apartment in Monte Carlo, Monaco, and that she would purchase his Scottsdale house. LaBerge tendered an earnest money check in the amount of U.S. $50,000 drawn on a French bank. Marks was required to obtain a nine-year lease from the landlord as a condition precedent. The landlord refused but instead offered three three-year leases which LaBerge allegedly accepted via a Telex to Marks. Shortly thereafter, however, LaBerge informed Marks by telephone that he would not honor the contracts. She unsuccessfully attempted to cash the earnest money check. On August 20, 1982, Marks filed this suit requesting specific performance on the contracts and damages equal to twice the amount of the refused check as allowed under A.R.S. § 12-671. Two days later, the summons and complaint were served on Holly Avery, LaBerge’s ex-fiancee, at the Scottsdale home. She indicated to the process server that she would get the documents to LaBerge. On September 9, 1982, LaBerge signed a receipt for a demand letter made out pursuant to A.R.S. § 12-671, sent to him in Meylan, France. Marks filed her affidavit of default six days later. On September 23, 1983, Marks learned that LaBerge would bé in Scottsdale at the closing of the sale of his house to another party. Marks’ attorney accompanied the process server as he served another summons and complaint on LaBerge, together with a duplicate of the demand letter. LaBerge indicated at that time that he had previously received both the complaint and the demand letter (which had been given to Avery). The judgment of default was granted the day after LaBerge had been served in person. He filed a motion to dismiss approximately one month later (he was unaware of the default at that time) and subsequently filed a motion to set aside default judgment and entry of default. The trial court denied both motions based on affidavits filed by the parties. The appeal is taken from this order. Since neither party requested a hearing to present witnesses, we too must consider the facts as presented in the affidavits and other documentary exhibits. We begin from the proposition that the purpose of process is to give the party actual notice of the proceedings against him and that he is answerable to the claim of the plaintiff. Scott v. G.A.C. Finance Corp., 107 Ariz. 304, 486 P.2d 786 (1971). Further, “dwelling house or usual place of abode” will be liberally construed to effect service if actual notice has been received by the defendant. Id. This is not only a matter of statutory construction, but is a constitutional requirement under the due process clause. Bowen v. Graham, 140 Ariz. 593, 684 P.2d 165 (App.1984). While LaBerge acknowledges that he received actual notice of the suit prior to the entry of the default judgment, he states that he does not recall exactly when he received such notice. This is a crucial fact since the policy of interpreting rule 4(d)(1) liberally only applies where actual notice has been received. In G.A.C. Finance, our Supreme Court found valid service even though the summons and complaint were served at a different address because the defendant was personally given the papers well in advance of the entry of default judgment. In the instant case the date cannot be ascertained; however, since that information is uniquely within LaBerge’s knowledge and control, we find that the burden is placed on him to demonstrate that actual notice was not received in sufficient time to make a timely answer. He has not borne the burden. Therefore, we will apply a liberal construction to rule 4(d)(1). Marks cites the following facts to support her position that the Scottsdale residence was LaBerge’s dwelling place or usual place of abode: 1. LaBerge had owned the house for a long period of time and had been served in prior lawsuits at that address. 2. The Scottsdale house is listed under LaBerge’s name in the 1980 through 1982 telephone directories. 3. After the sale of the Scottsdale house, the post office reflects a joint address for LaBerge and his former fiancee, Holly Avery, in Scottsdale. 4. LaBerge’s Arizona driver’s license listed his residence as the Scottsdale house. LaBerge, however, points to affidavits by himself, Avery, and his real estate agent that he has not resided in Arizona since 1980 and that he has had no contacts with this state since that time. As the trial judge noted in the judgment, LaBerge was issued an Arizona driver’s license on January 20, 1982. A.R.S. § 28-416(C) requires applicants for driver’s licenses to state their “residence address”; LaBerge’s compliance with this statute is evidence which refutes both his contention that he has had no contacts with the State of Arizona and that the Scottsdale house was not his residence. That this case does not concern driving is irrelevant since the driver’s license is used to controvert LaBerge’s assertion that he had no contacts with Arizona during that time and that he did not reside at the house. In our opinion, these facts show that LaBerge did not terminate his contacts with Arizona in 1980, that he continued to conduct personal affairs from the Scottsdale house (albeit he may have used other residences as well), and that he continued to have contacts with Arizona even after the lawsuit had been filed. II LaBerge contends that even if service was valid, the trial court erred in not granting his motions for dismissal and to set aside the default judgment. He first argues that there was no personal jurisdiction under International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and Northern Propane Gas Co. v. Kipps, 127 Ariz. 522, 622 P.2d 469 (1980). These cases concern “long arm” jurisdiction under rule 4(e) and are inapposite to this case. 17] LaBerge next argues that the court lacked subject matter jurisdiction. This is the power of a court to hear and determine a controversy. Schoenberger v. Board of Adjustment, 124 Ariz. 528, 606 P.2d 18 (1980); Rural/Metro Corp. v. Arizona Corp. Comm’n, 129 Ariz. 116, 629 P.2d 83 (1981). Ariz. Const. Art. 6, § 14 confers upon the superior court original jurisdiction in cases “of equity and at law which involve the title to or possession of real property” as well as “other cases in which the demand or value of property in controversy amounts to one thousand dollars or more.” See also A.R.S. § 12-123. This case clearly fits these requirements. The complaint stated a claim in equity and at law involving Arizona real property, as well as a demand for damages in excess of $1,000 based principally on A.R.S. § 12-671. Moreover, when the complaint was filed, both parties had an interest in the Arizona real property and they still claim an interest in the note and deed of trust which are held in local escrow. LaBerge contends that even if the trial court had personal and subject matter jurisdiction, it should not have heard the case under the doctrine of forum non conveniens. This is a matter left to the sound discretion of the trial court. Slovenic Nat’l Ben. Soc’y v. Dabcevich, 30 Ariz. 294, 246 P. 765 (1926). More important, we find that this issue was not raised in a timely manner because no answer had been filed within the prescribed period. A motion requesting change of venue for cause cannot be considered until an answer has been filed. A.R.S. § 12-406; Sulger v. Superior Court, 85 Ariz. 299, 337 P.2d 285 (1959). Finally, LaBerge asserts that the trial court abused its discretion in not setting aside the entry of default and default judgment under rule 60(c)(1) and (6). Relief under the first clause requires that LaBerge show each of the following elements: (1) he took prompt action in seeking relief from the entry of default; (2) his failure to file a timely answer was due to either mistake, inadvertence, surprise, or excusable neglect; and, (3) he had a meritorious defense. Richas v. Superior Court, 133 Ariz. 512, 652 P.2d 1035 (1982). While LaBerge arguably acted in a prompt manner and may have had a meritorious defense, we find no evidence that his failure to file a timely answer was due to any of the enumerated justifications. LaBerge’s assertion that the second service confused him does not relieve him of a duty to respond to the first, valid service. We will not turn Marks’ cautious behavior in securing a second service into a shield for LaBerge when it occurred more than 20 days after the first service. Rule 60(c)(6) authorizes relief from the operation of a final judgment, order or proceeding for “any other reason justifying relief from the operation of the judgment.” Two separate limitations are inherent in its application: (1) the reason for setting aside the default must not be one of the reasons set forth in the other clauses; and, (2) the “other reason” must justify relief. Webb v. Erickson, 134 Ariz. 182, 655 P.2d 6 (1982). In examining the record we find no extraordinary circumstances of hardship or injustice justifying relief under this clause. In fact, it is a reasonable inference that LaBerge simply chose not to respond to the summons and complaint; he presents no evidence to the contrary. For the foregoing reasons, the judgment and order of the trial court are affirmed. FROEB and OGG, JJ., concur.

OPINION BIRDSALL, Chief Judge. This appeal is from a special action in the trial court wherein jurisdiction was taken but relief denied. Appellant had been a teacher at the Arizona State School for the Deaf and Blind (ASDB) for about 18 years. He was given notice on September 6, 1983, that he was suspended from duties with pay, pending an investigation of reports concerning his actions with regard to students at the school. On September 16, 1983, he was given written notice of dismissal from employment at the school pursuant to A.R.S. § 15-1326(B). Termination was effective immediately without further pay. Appellant’s rights concerning appeal of the termination were outlined to him. He obtained an interlocutory order on September 23, 1983, staying any dismissal proceedings until his special action, also filed that day, was disposed of, and by special action to the Arizona Supreme Court obtained an additional stay of his termination hearing. The appellant’s claim in the lower court special action was that the respondent school and its superintendent, Barry L. Griffing, acted in disregard of provisions contained in the school’s written teacher tenure policy purportedly adopted in 1977. Appellant alleged that the failure to follow that policy was arbitrary, capricious and an abuse of discretion, in excess of legal authority and a violation of legal duties over which the appellees had no discretion. Rule 3, Rules of Procedure for Special Actions, 17A A.R.S. The particular sections in the policy provided that, upon a written statement of charges formulated by the board charging a teacher with cause for dismissal, the board could immediately suspend the teacher with pay. Then a requested hearing by a commission appointed by the board was to be commenced within 30 days. Thus if the policy had been followed, appellant would not have been discharged without pay prior to a hearing. However, A.R.S. §§ 15-1301 to 1361 (formerly A.R.S. §§ 15-801 to 851) pertaining to administration of the school, provides that the superintendent of the school “may discharge for cause any person employed in the school. In the event of a discharge for cause the superintendent shall file with the board a written report of his actions and his reasons.” A.R.S. § 15-1326(B). The trial court held that in view of the statutes, the board had no authority to discharge or continue an employee’s salary. We agree. The record presents a question whether the school’s tenure policy was actually adopted by it. Assuming, arguendo, that it was adopted in 1977, any of its provisions which are in conflict with the legislation governing the school are not enforceable. The school is created by the legislature and its duly enacted statutes control. Cf. Olmsted & Gillelen v. Hesla, 24 Ariz. 546, 211 P. 589 (1922). The school has only those powers specifically or impliedly granted it by statute. Cf. Godbey v. Roosevelt School District No. 66, 131 Ariz. 13, 638 P.2d 235 (App.1981). Actually the tenure policy which the board attempted to adopt was the public school district teacher tenure policy set forth in A.R.S. §§ 15-501 to 550. That legislation pertains only to certificated teachers employed under contract in a school district. It does not, by its very terms, pertain to employees of ASDB. If the legislature intended that tenure policy to apply to ASDB teachers, it could have done so. It did not. The ASDB board cannot do what the legislature did not do. We also note that A.R.S. § 15-1325(C) provides that the board may remove the superintendent, and if its action is determined after hearing to be without cause, the superintendent is to be reinstated with out loss of pay. We understand this to mean that the superintendent is not to be paid in the interim. From this we analogize, although not necessary to our holding, that other employees are not to be paid pending appeal. The appellant also contends that due process requires both that his salary be continued and that he have a pretermination hearing. We do not agree with either contention. Due process, in this regard, requires only that the employee be afforded a post-termination hearing and full back pay benefits if the employee prevails. Peacock v. Board of Regents, 510 F.2d 1324 (9th Cir.), cert. denied, 422 U.S. 1049, 95 S.Ct. 2668, 45 L.Ed.2d 701 (1975) (involving, no loss of salary); Roberts v. City of Tucson, 122 Ariz. 91, 593 P.2d 645 (1979); City of Flagstaff v. Superior Court of Coconino County, 116 Ariz. 382, 569 P.2d 812 (1977). The only deprivation to the appellant argued in the special action proceeding was the temporary interruption of his income until the hearing was held. This same deprivation was presented in Roberts v. City of Tucson, supra, and rejected. The trial court could hardly find that this warranted special action relief. ASDB can provide the appellant with a due process review of his discharge. If the result is unfavorable to him he can contest it in the superior court, alleging any due process violation. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Bailey v. Richardson, 182 F.2d 46, (D.C.Cir.1950), aff’d, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352 (1951). The argument that due process requires a continuation of salary defies common sense. Why should public funds be paid to an employee who has been discharged for cause and is no longer working, and who can recover the lost wages if vindicated? And if the discharge is upheld, how does the public body recover the wages paid? Not only is wage continuation not mandated by due process, it might constitute wasteful expenditure of public funds. In the trial court the appellant also contended that A.R.S. §§ 15-539 and 540, pertaining to continuing teachers as defined in A.R.S. § 15-501, those employed under contract in a school district, were applicable. The trial court correctly found they were not. As we have already observed, the school is not a school district. That issue is not urged on appeal. The trial court also found that, even if the school’s tenure policies were not applicable as rules, there might be an obligation since the policies may have been incorporated in the appellant’s contract. See Leikvold v. Valley View Community Hospital, 141 Ariz. 544, 688 P.2d 170 (1984). The trial court correctly found that appellant’s possible contract rights were not properly before it in a special action inasmuch as he would have an adequate remedy by appeal of an adverse determination of his contract rights. To have determined his rights in the special action would have enlarged the scope of relief available in such actions. See Rule 1, Rules of Procedure for Special Actions, 17A A.R.S., and State v. Superior Court of Maricopa County, 128 Ariz. 216, 624 P.2d 1264 (1981). Affirmed. HATHAWAY and HOWARD, JJ., concur.

OPINION CORCORAN, Presiding Judge. The issue in this appeal from the denial of petitioner’s application for a writ of habeas corpus relief is whether the Board of Pardons and Paroles (Board) must reduce the maximum prison sentence by the amount of time spent in jail pending a parole revocation hearing. We grant petitioner’s request for relief! On November 22, 1983, petitioner Worth was paroled to California. He violated his parole and was taken into custody in California on March 9, 1984. Worth was held in jail in both California and Arizona until July 20, 1984, pursuant only to the parole warrant, on which date the Board revoked his parole. Additionally, the Board forfeited “seven months street time.” Worth claims that Jordan v. Arizona Bd. of Pardons and Paroles, 108 Ariz. 602, 503 P.2d 944 (1972) mandates relief in his favor. We agree. In that case our Supreme Court held that a parolee who was incarcerated pursuant to another criminal charge must be given credit for the additional period of time during which he was detained only as a result of the violation of parole. As the court noted, “[P]etitioner should not be prejudiced by the failure of the Board to promptly return petitioner to the prison.” 108 Ariz. at 603, 503 P.2d at 945. The state's claim that Jordan is distinguishable because the court did not consider whether jail time could later be forfeited by the Board under A.R.S. § 31-417 does not persuade us. The relevant section of A.R.S. § 31-417 provides that following a revocation hearing the parolee “may be thereafter imprisoned in the prison for a period equal to his unexpired maximum term of sentence at the time the parole was granted, unless sooner released or discharged.” The statute does not authorize the Board to “forfeit” either street time or credits. It simply provides that a parolee may be imprisoned for the remainder of his maximum term of sentence. While an administrative interpretation of a statute or regulation is entitled to great weight, Marlar v. State, 136 Ariz. 404, 666 P.2d 504 (App.1983), a court is not bound by that interpretation unless there is a serious doubt as to the proper interpretation. Jenney v. Arizona Express, Inc., 89 Ariz. 343, 362 P.2d 664 (1961). We see no doubt or ambiguity: pre-revocation incarceration must be credited against the unexpired maximum term of sentence calculated as of the time parole was granted. The Board attempted to forfeit seven months of street time although 240 days had elapsed between the granting and revocation of parole. The state contends that the 30 days “credit” should be applied against the time spent in jail rather than the period petitioner was not incarcerated. This argument is founded on the assumption that “credit” for pre-revocation jail time is given in the Board’s discretion. Since our holding makes clear that the Board has no such discretion, the 30-day period can only be credited against the period in which the board has discretion: the period when petitioner was at liberty. Therefore, undesignated “credits” by the Board must be applied against the time period when a parolee was not incarcerated. It is ordered that the petitioner’s release and sentence expiration date be recomputed in accordance with this opinion. EUBANK and FROEB, JJ., concur. . Petitioner was imprisoned both at the time he filed his application for the writ and the notice of appeal, claiming that he was "illegally and unjustly restrained and imprisoned." He has since been released under the mandatory release provision of A.R.S. § 31-411(E). While his release renders the application for the writ moot, we will consider this petition as a petition for special action. See Jordan v. Arizona Bd. of Pardons and Paroles, 108 Ariz. 602, 503 P.2d 944 (1972); Peru v. Raines, 130 Ariz. 44, 633 P.2d 453 (App.1981).

OPINION CORCORAN, Judge. Appellees Stephen and Jackie Storey (Storeys) were in the business of selling Kirby vacuum cleaners to consumers. Some of the sales were made through the use of retail sales contracts whereby the consumers would make monthly payments toward the purchase of vacuum cleaners. On November 20,1980, the Storeys entered into a dealer financing agreement with the appellant McClellan Mortgage Company (McClellan) whereby McClellan could, at its discretion, purchase retail sales contracts from the Storeys, discounting the amount financed by 10%. The agreement provided for McClellan to withhold 40% of the amount financed as a reserve account for possible losses. The agreement further provided that McClellan would have recourse against the Storeys as follows: Dealer [Storeys] unconditionally guarantees the payment of each contract purchased by Lender [McClellan] in accordance with its terms and conditions. Should any contract purchased by Lender become ninety (90) days past due, Lender shall notify Dealer in writing. Fifteen days after such notification, unless sooner paid in cash, or by sale to Lender of another contract(s) of equal or greater amount which is (are) current in payments) satisfactory to Lender, then Lender shall charge back the balance of the past due contract to the Dealer reserve account and reassign the past due contract back to Dealer. On January 20, 1983, McClellan filed suit against the Storeys, alleging that the Storeys had failed to pay to McClellan past due and delinquent accounts totaling $18,-852.72. McClellan alleged that it had reassigned to the Storeys past due and delinquent accounts to the extent of the amount remaining in the dealer reserve account and that the $18,852.72 remaining due to it was over and above what had been taken from that account. The Storeys counterclaimed, alleging that McClellan owed them certain sums due under the contract. On April 19, 1983, the Storeys filed a motion for partial summary judgment, seeking summary judgment as to McClellan’s claim against them. The Storeys argued that they had been discharged from all liability to McClellan when the latter failed to sue the consumers who had entered the retail sales contracts upon their request that it do so. The Storeys maintained that their contract with McClellan made them a surety or guarantor of the consumer contracts, and therefore they were entitled to the defense provided in A.R.S. § 12-1641 et seq. A.R.S. § 12-1641 provides: Any person bound as surety upon a contract for payment of money or performance of an act, when the right of action has accrued, may require, by notice in writing, the creditor or obligee forthwith to bring an action upon the contract. If the creditor or obligee, not being under legal disability, fails to bring the action within sixty days after receiving the notice, and prosecute it to judgment and execution, the surety giving the notice shall be discharged from all liability thereon. A.R.S. § 12-1646 further provides: The remedy provided in this article for sureties extends to endorsers, guarantors, drawers of bills which have been accepted, and every other suretyship, whether created by express contract or operation of law. (Emphasis added.) The Storeys did in fact make demand on McClellan that it sue the consumers on the retail sales contracts to obtain payment and McClellan refused to do so. The trial court found that A.R.S. § 12-1641 provided the Storeys with a defense and therefore granted summary judgment for the Storeys on McClellan’s claim against them. McClellan appealed after final judgment was entered pursuant to rule 54(b), Arizona Rules of Civil Procedure. The question on appeal is whether the trial court erred in finding that the Storeys were entitled to the defense given in A.R.S. § 12-1641. If the Storeys were not entitled to the defense, then the trial court erred in entering summary judgment for the Storeys on McClellan’s claim. We first dispose of McClellan’s argument that even if the Storeys are in fact a “guarantor,” A.R.S. § 12-1641 does not apply. McClellan argues that even though § 12-1646 specifically states that the remedy provided in this article extends to guarantors, the language in § 12-1646 providing that the remedy also extends to “every other suretyship” indicates that the statute applies only to those guarantors who are also sureties. We do not find this to be a reasonable interpretation of the statute. Under Arizona law, contracts of guaranty are distinguished from contracts of surety. See, e.g., Van Marel v. Watson, 28 Ariz. 32, 38, 235 P. 144, 146 (1925). In Security Ins. Co. v. Johns-Manville Sales Corp., 8 Ariz.App. 18, 21, 442 P.2d 555, 558 (1968), we pointed out this distinction in quoting from 24 Am.Jur. § 11 (1939), page 879: The surety is a party to an original obligation which binds him as well as his principal, whereas a guarantor is not a party to such an undertaking, the contract by which he is bound being collateral to a primary or original obligation. This is the vital difference between the two contracts. Therefore, a “guarantor” would never be a “surety” under the normal meaning of these terms. We find it clear that the language "and every other suretyship” is used in the statute merely to show that the statute applies to all types of relationships in which one person agrees to answer for the debt of another, not just those specifically listed in the statute. We find considerably more merit, however, to McClellan’s argument that this case does not involve “surety” or “guaranty.” The mere fact that the agreement states that the Storeys “guarantee” payment of each contract assigned to McClellan does not mean that there is a “guaranty” agreement. The court looks to the obligation assumed in a particular case rather than to the distribution of labels. Kintner v. Wolfe, 102 Ariz. 164, 426 P.2d 798 (1967); Shipp v. Ericson, 80 Ariz. 108, 293 P.2d 443 (1955); Security Ins. Co. v. Johns-Manville Sales Corp., supra. It is clear that if this had been the usual sort of case in which guaranty arises, the original contract creating the debt would have been between the consumers and McClellan. The Storeys then would have executed a separate agreement with McClellan guaranteeing payment of the debt incurred by the consumers to McClellan. See Howard v. Associated Grocers, 123 Ariz. 593, 595, 601 P.2d 593, 595 (1979); Security Ins. Co. v. Johns-Manville Sales Corp., 8 Ariz.App. at 21, 442 P.2d at 558 (1968); 38 Am.Jur.2d Guaranty § 1 at 996 (1968). If it, instead, had been a suretyship, the three parties would have entered only one contract, but the principal debt would still have been entered between McClellan and the consumers. See Security Ins. Co. v. Johns-Manville Sales Corp., 8 Ariz.App. at 21, 442 P.2d at 558 (1968); 74 Am.Jur.2d Suretyship § 1 at 12 (1974). Neither of these situations describes what happened in this case. The underlying debt obviously was not between McClellan and the consumers. It was between the Storeys who owned the vacuum cleaners and the consumers. The Storeys then assigned the contracts they had entered into with the consumers to McClellan, giving McClellan recourse against them if the consumers failed to pay the debts. This fact situation does not give rise to a guaranty or suretyship in the normal sense of those words. Even if the relationship formed in the contract between the Storeys and McClellan would fall within the broad use of the term “suretyship” in A.R.S. § 12-1646, in that the Storeys were agreeing to answer for the debt owed by the consumers, we agree with McClellan that the Storeys unambiguously waived the defense provided in A.R.S. § 12-1641. In Austad v. United States, 386 F.2d 147 (9th Cir. 1967), the court of appeals held that the provisions of A.R.S. § 12-1641 can be waived. In that case, a contract of guaranty contained provisions which were inconsistent with the provisions of A.R.S. § 12-1641. The court observed that “[t]he statute was enacted for the benefit of sureties only. If they desire to waive it in order to receive a loan, the law should not prevent them.” 386 F.2d at 150. We find no error in the Ninth Circuit’s conclusion that A.R.S. § 12-1641 can be waived. It is well settled that most rights may be waived. Estate of Henry, 6 Ariz.App. 183, 430 P.2d 937 (1967). As the Arizona Supreme Court stated in Holmes v. Graves, 83 Ariz. 174, 318 P.2d 354 (1957), “[sjtatutory provisions enacted for the benefit of individuals may be so far waived by those for whose benefit they were enacted that they are estopped to insist upon their protection.” 83 Ariz. at 178, 318 P.2d at 357. We find that the agreement in this case unambiguously waives any rights the Storeys may have had to require McClellan to sue the consumers. While the first sentence of the “guaranty” paragraph speaks of “guaranteeing payment” of the contracts, it is clear from the subsequent sentences that what the Storeys were actually guaranteeing was that McClellan would be paid the contract amounts without having to pursue the consumers for collection. The agreement provides for McClellan to notify the Storeys ninety days after a contract payment is past due. Within fifteen days after the notification, McClellan was either to receive payment in cash, or have a new contract of equal value and current in payments substituted, or McClellan would have the right to reassign the contract to the Storeys and obtain reimbursement from the dealer reserve account. Clearly, the provision that McClellan was to obtain relief from the Storeys within fifteen days after notification to the Storeys of the past due status of the account conflicts with the provisions of A.R.S. § 12-1641 which allows the guarantor to require the creditor to sue the consumer within sixty days and shows that the Storeys intended to waive the benefits of A.R.S. § 12-1641. We disagree with the Storeys’ argument that the contract would have to have express language that McClellan would not be required to sue the consumers in order to accomplish waiver of A.R.S. § 12-1641. The language chosen by the parties in this instance adequately accomplished that result. We find that the trial court erred in concluding that the Storeys were entitled to the defense provided in A.R.S. § 12-1641. We therefore reverse the trial court’s entry of summary judgment for the Storeys and remand for further proceedings consistent with this decision. Appellant has requested attorney’s fees, urging that they be granted both pursuant to A.R.S. § 12-341.01 and pursuant to agreement of the parties. Since the case is being remanded, we find that the issue of attorney’s fees on appeal should be postponed until final decision. EUBANK and FROEB, JJ., concur.

FELDMAN, Justice. Murdock-Bryant Construction, Inc. (Murdock), a subcontractor, brought an action seeking recovery for fraud, breach of contract, and restitution against the prime contractor, Taylor Pearson, dba Taylor Pear son Construction Co. (Pearson). Murdock also joined Robert Wilbur and University Industries, Inc. (UI) as defendants, alleging they were joint venturers with Pearson. All defendants counterclaimed, seeking damages from Murdock for breach of contract. The case was tried to a jury on the equitable theory of restitution. The jury found for Murdock and against all the defendants, returning a verdict for $392,000. Deeming the verdict advisory only, the trial judge recomputed damages, ruled on various post-trial motions, and entered judgment against all defendants, awarding Murdock damages of $273,000 plus attorney’s fees and denying all relief on defendants’ counterclaims. All defendants appealed. In a thorough opinion, 146 Ariz. 57, 703 P.2d 1206, the court of appeals reviewed the facts, defined the standard of appellate review, and held that Murdock had established its claim, that the evidence supported the damages awarded, and that attorney’s fees were properly granted by the trial judge. The opinion of the court of appeals on each of these points is approved. However, the court also held that the evidence was insufficient to support any judgment against Wilbur and UI. Since the legal issues with respect to this holding are matters of first impression in this state, we granted review. We have jurisdiction under Ariz. Const, art. 6, § 5(3) and Rule 23(c), Ariz.R'.Civ.App.P., 17A A.R.S. The precise issue presented is whether defendant may be held liable on a quantum meruit theory to make restitution for benefits received when defendant was neither a party to the contract under which plaintiff rendered services nor a party responsible for the wrong which permitted plaintiff to rescind the contract and seek restitution. FACTS The facts are fully set out in the opinion of the court of appeals and need not be repeated here. Although the case took three months to try and was fraught with considerable factual controversy, the facts relating to the narrow issue upon which we have taken review are not in dispute. So far as necessary to understand the issue before us, the facts are as follows: Pearson had entered into an agreement with a landowner to construct a shopping center in Flagstaff. A great deal of excavation and site preparation on the property was necessary and required the blasting of a large quantity of rock. Pearson approached Murdock, asking it to bid on a subcontract for the site work. Murdock decided not to bid on the job because it did not have time to estimate the quantities of rock to be blasted. A Pearson employee then provided Murdock with figures regarding the quantity of rock to be blasted. According to the version of the facts accepted by the trial jury and the trial judge, the figures given Murdock were erroneous. Instead of blasting 34,000 cubic yards of rock, which was the figure upon which Murdock relied in making its bid, Murdock had to blast a total of over 52,000 cubic yards. The misrepresentations with regard to the quantity of rock to be blasted were made prior to July 27, 1977. The contract between Pearson and Murdock was made on July 27. In August of 1977 Pearson formed a joint venture with Wilbur for performance of Pearson’s contract to develop and construct the shopping center. In November Murdock discovered that its blasting operation had exceeded by 18,000 yards the estimate provided by the Pearson employee. Additional blasting would be required to complete the subcontract. On November 14,1977 Murdock asked Pearson for assurance that it would be paid for blasting the excess rock. When Pearson refused, Murdock left the job and filed the legal action. At trial Murdock elected to rescind the contract and recover in equity. The trial court entered judgment for restitution against all defendants. In reversing the judgment against Wilbur and UI, the court of appeals held “as a matter of law, that no joint venture existed on ... the date of the misrepresentation.” (P. 1213.) The court also held that the evidence did not support the theory that Wilbur and UI had become liable by ratifying the misrepresentation. Pointing out that liability through ratification must be supported by evidence that the defendant has “full” and “actual” knowledge of the misrepresentation, the court held the record insufficient to establish that Wilbur and UI had the requisite knowledge to adopt or ratify the unauthorized representations made to Murdock by Pearson employees before the formation of the joint venture. The court thus concluded that Wilbur and UI “are not liable for the ... misrepresentation of Taylor Pearson, and that their motions for directed verdicts should have been granted by the trial court.” (Id. at 1213.) We agree with the court of appeals’ conclusions regarding the ultimate facts. The record does establish that the joint venture was formed after the misrepresentation. Also, the evidence fails to establish that those misrepresentations were later ratified by Wilbur and UI. Thus, it follows that the latter were not “liable for the ... misrepresentation of Taylor Pearson.” (Id.) THE NATURE OF THE CLAIM FOR RESTITUTION We start with the premise that Wilbur and UI are neither liable nor responsible for the tort of fraud nor for any misrepresentation by Pearson. They neither made, authorized, nor ratified any misrepresentation. Nor are they liable for breach of contract, since they neither made, authorized, nor ratified the contract between Murdock and Pearson. In addition, Murdock waived all contract claims. Thus, the judgment against Wilbur and UI cannot be supported on either tort or contract theory. In fact, that judgment was not based on either theory but, instead, on the theory of quantum meruit — restitution made for benefits received. We must determine, therefore, whether a party which has not participated in the tort that caused the damage to the plaintiffs and has breached no contractual obligations to the plaintiff may, nevertheless, be held liable to the plaintiff on the theory of quantum meruit. Restitution began as an ancient remedy to enforce contractual rights which could not be enforced in common law courts due to lack of formality of the contract. D. Dobbs, Remedies § 4.2 at 233 (1973). Various forms of action evolved to permit recovery of goods or money on contracts implied in fact — that is, those which the law implied from the conduct of the party rather than from any explicit words. Id. at 234. Eventually, restitution theory permitted an action to be brought where there was no contract at all, “neither expressed nor implied in fact.” Id. at 235. The purpose of such an action was to prevent unjust enrichment of the defendant, and one of the explicit forms of action recognized for that purpose was the so-called quantum meruit action. Id. at 235-37. Thus, quantum meruit was the common law count or form of action which allowed recovery where the plaintiff had performed services for the defendant, whether the services were provided at the defendant’s request, on a theory of implied-in-fact contract, or without the defendant’s request but benefiting him in some way. D. Dobbs, supra, § 4.2 at 237. The recovery allowed for services which had not been requested by defendant was based upon quasi-contract, and theoretically had as its “central core” the “principle against unjust enrich ment.” Id. at 236. This principle has been adopted by the American Law Institute, which has stated: “A person who has been unjustly enriched at the expense of another is required to make restitution to the other.” Restatement of Restitution § 1. These concepts are a part of Arizona jurisprudence. We have held a defendant liable, on the theory of restitution, for benefits resulting from unauthorized use of plaintiff’s property. Artukovich & Sons v. Reliance Truck Co., 126 Ariz. 246, 614 P.2d 327 (1980). We allowed recovery even though plaintiff had suffered no damage, because defendant had been unjustly enriched by receiving the benefits flowing from the use of plaintiff’s property and it would have been “inequitable” to have allowed defendant to retain such benefits without compensating plaintiff. Id. at 248, 614 P.2d at 329. Our court of appeals subsequently held that a former wife who had provided the funds necessary for her husband’s medical education was entitled, upon divorce, to restitution in quantum meruit to prevent the husband’s unjust enrichment resulting from obtaining his education with funds received through his wife’s efforts. Noting that the availability of restitutionary relief is not dependent upon the existence of a valid contract between the parties, the court stated: In order to be granted restitution, [plaintiff] must demonstrate that [defendant] received a benefit, that by receipt of that benefit [defendant] was unjustly enriched at [plaintiff’s] expense, and that the circumstances were such that in good conscience [defendant] should make compensation. Pyeatte v. Pyeatte, 135 Ariz. 346, 352, 661 P.2d 196, 202 (App.1983). Thus, prior case law indicates that a party may be liable to make restitution for benefits received, even though he has committed no tort and is not contractually obligated to the plaintiff. The circumstances of this case are somewhat unique. Neither party has cited a case factually on point, and our research discloses none. The Restatement of Restitution contains several sections dealing with the availability of restitution in quantum meruit to those who, without enforceable contracts, have rendered services that enure to the benefit of another. Section 40 specifies when restitution is available, but does not cover the factual circumstances present in the case at bench. Section 41 lists the circumstances under which no recovery is available, but also does not cover the circumstances presented by the case at bench. This is not determinative, however, because the remedy of restitution is not confined to any particular circumstance or set of facts. It is, rather, a flexible, equitable remedy available whenever the court finds that “the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity” to make compensation for benefits received. D. Dobbs, supra, at 235, quoting Moses v. MacFerlan, 2 Burr. 1005, 97 Eng. Rep. 676 (K.B.1760). IS RESTITUTION APPROPRIATE IN THIS CASE? We have also recognized the rationale for restitutionary relief, stating that restitution through an implied-in-law contract or quasi-contract is available “as a matter of reason and justice from the acts and conduct of the parties and circumstances surrounding the transactions, ... and [is] imposed for the purpose of bringing about justice without reference to the intentions of the parties.” Artukovich & Sons v. Reliance Truck Co., 126 Ariz. at 248, 614 P.2d at 329. Since we are not bound by the common law forms of action and are free to fashion a remedy wherever circumstances and equity require (D. Dobbs, supra, at 239), our question is simply whether under the facts of this case Wilbur and UI received a benefit and whether it is unjust that they retain that benefit without being required to compensate plaintiff for the value received. In the case at bench, Murdock provided valuable services by way of site preparation. Presumably, the construction of the shopping center would not have been possible without the blasting and other work done by the plaintiff. Wilbur had become a- joint venturer with Pearson, so that he had assumed, with Pearson, the obligation of constructing the shopping center. As a joint venturer on the contract for construction of the shopping center, Wilbur must have been aware that plaintiff, or someone else, would have to perform the site preparation work. Thus, Murdock’s work was beneficial to Wilbur and UI because it was necessary for performance of the contract to construct the shopping center. “A benefit may be any type of advantage, including that which saves the recipient from any loss or expense.” Pyeatte v. Pyeatte, 135 Ariz. at 352, 661 P.2d at 202, citing Artukovich, supra. However, the mere receipt of a benefit is insufficient. Restitutionary relief is allowable only when it would be inequitable or unjust for defendant to retain the benefit without compensating plaintiff. Pyeatte v. Pyeatte, 135 Ariz. at 353, 661 P.2d at 196. In determining whether it would be unjust to allow the retention of benefits without compensation, a court need not find that the defendant intended to compensate the plaintiff for the services rendered or that the plaintiff intended that the defendant be the party to make compensation. This is because the duty to compensate for unjust enrichment is an obligation implied by law without reference to the intention of the parties. 1 S. Williston, Contracts § 3A at 13 (3rd. ed. 1957). What is important is that it be shown that it was not intended or expected that the services be rendered or the benefit conferred gratuitously, and that the benefit was not “conferred officiously.” Pyeatte v. Pyeatte, 135 Ariz. at 353, 661 P.2d at 203, citing Osborn v. Boeing Airplane Co., 309 F.2d 99, 102 (9th Cir.1962). We believe that the uncontroverted facts here show that restitution is appropriate. Plaintiff did not render services gratuitously or officiously, but pursuant to a contract and with the expectation of compensation for its work. The work performed by plaintiff not only benefited Wilbur and UI but was necessary for the performance of the prime contract, a matter in which Wilbur had a direct pecuniary interest. Here, as in Pyeatte, supra, although there was no enforceable contract between plaintiff and defendant, plaintiff’s contract “has importance in considering [the] claim for unjust enrichment because it both evidences [plaintiff’s] expectation of compensation and the circumstances which make it unjust to allow [defendant] to retain the benefits____” Pyeatte v. Pyeatte, 135 Ariz. at 353, 661 P.2d at 203. We hold, therefore, that the judgment for restitution is supported by this record. THE JOINT VENTURERS Two further questions remain. The first involves the identity of the joint venturers. The trial judge evidently took the position that both Wilbur and UI were joint venturers. As indicated above (note 1, ante), the letter agreement does not mention UI. Also, as noted by the court of appeals, the record is not clear on UI’s relationship with Wilbur or Pearson. We cannot tell the basis for the trial court’s entry of judgment against UI, and we refuse to speculate. Judgment against UI does not appear to have been an important issue in the case, is not explained by any specific finding or minute entry, and is difficult to affirm on the state of the record. We are equally hesitant to reverse without knowing what the trial judge had in mind. Since the case must be remanded for other reasons, we leave it to the trial judge to consider the record and determine the liability of UI under principles of restitution. DAMAGES The final issue, and that which requires remand, pertains to the question of damages. In pertinent part, the trial judge instructed the jury as follows: If a person is damaged by the misrepresentation of another, ... that person is entitled to recover, in addition to his compensation under quantum meruit, such other additional damages as might be required to make him whole. These damages must have been reasonably and necessarily incurred under the circumstances. (Emphasis supplied.) This instruction is incorrect as applied to Wilbur, since Wilbur is not liable for the misrepresentation. Of course, part of the error was cured when the trial judge reduced the damages awarded by the jury, deeming its verdict to have been only advisory. The record does not explain the trial judge’s calculations in making the reduction from $392,000, except that he evidently reached it by adding a profit factor to Murdock’s total costs and subtracting the money paid to Murdock by Pearson (slip op. at 16). Assuming that this was the formulation used by the trial judge, it is still erroneous as to Wilbur, even though correct as to Pearson. This is because the amount of recovery should correspond to the reasons underlying that recovery. D. Dobbs, supra, § 4.5 at 260. If there is any one rational principle that might be used to guide restitutionary measurements it is that the measure of restitution should reflect the substantive law purposes that call for restitution in the first place. If the plaintiff built the house on defendant’s land by mistake, he may be entitled to restitution for the benefits conferred, but perhaps only for the actual, subjective benefit to the defendant. On the other hand, if the defendant bargained for the house and it was built pursuant to an agreement voidable for mistake ..., perhaps the benefit to the defendant should be measured by the market value of the plaintiff’s labor and supplies. If the plaintiff built the house ... because he had an oral contract to buy the land that was later repudiated by the defendant, [recovery might be limited to] the increased value of the defendant’s land by reason of the building. Id. at 260-61 (footnotes omitted). The case at bench presents a clear instance of restitutionary recovery from different defendants based upon different legal principles. Recovery against Pearson is allowed on the basis that Pearson’s misrepresentation allowed Murdock both to rescind and-to recover the market value of labor and materials, the reasonable cost of its work, and a reasonable profit margin as an element of the reasonable value of the services. (703 P.2d at 1216-1217.) Wilbur, however, is in a different category. He is not responsible for the misrepresentation and had no contract with Murdock. Recovery is allowed against him simply because the work performed by Murdock conferred a benefit on Wilbur which equity will not allow him to retain without payment. Where there is no contract between the parties, and none attempted, the benefit to the recipient is generally measured by its economic value to him. D. Dobbs, supra, § 4.5 at 261-62. However, it has also been recognized that where the recipient has requested the services, he may be held liable for their value “as services.” Id. at 263. Other formulations are mentioned by Professor Dobbs and the Restatement as being appropriate, depending upon the peculiar factual situation of each case. We do not believe it appropriate for this court to require the trial judge to adopt any particular measure of damages. Since the trial judge proceeded upon a measure of damages that was appropriate for Pearson but inappropriate for Wilbur, we have no way of knowing what particular factors he might find in the evidence upon which to base the proper, equitable measure of restitution. Accordingly, we remand with instructions that the trial judge reconsider the measure of restitution as to Wilbur and apply the measure of damages appropriate under whatever facts he may / . find to exist. The judgment is reversed in part and affirmed in part. The opinion of the court of appeals is approved except with respect to the liability of Wilbur and UI. The case is remanded for further proceedings not inconsistent with this opinion, HOLOHAN, C.J., GORDON, Y.C.J., and HAYS and CAMERON, JJ., concur. . See Rules 39(a)(2) and 39(k), Ariz.R.Civ.P., 16 A.R.S. . As noted by the court of appeals (at p. 1212, n. 4), the letter agreement which memorializes the joint venture was between Pearson and Wilbur. UI is not mentioned. Neither Wilbur’s relationship with UI nor UI’s relationship with the joint venture is clear in the record or adequately explained by the parties. . If the jury was advisory only, as was later held by the trial court, the proper relief if the evidence was insufficient would be by motion to dismiss. Rule 41(b), Ariz.R.Civ.P., 16 A.R.S. . “Quantum meruit" literally means “as much as he deserves.” Black’s Law Dictionary 1119 (5th ed. 1979). . We do not use the word "assumed” in its technical, legal sense. The letter agreement of August 27 provides that Wilbur "will acquire a 40% interest in the project.” The "project,” from Pearson’s standpoint, consisted of its obligations and expected benefits from performance of its prime contract with the owner. Under the terms of the letter agreement, Wilbur’s contribution to performance of that contract mainly consisted of advancing cash to help Pearson meet payroll, equipment costs, and purchases of materials. Wilbur was also to obtain the performance bond required by the prime contract. Whether or not Wilbur actually assumed and was liable to the owner for Pearson’s performance of the prime contract is open to question. What is certain, however, is that Wilbur had a direct and real pecuniary interest in Pearson’s successful performance of the prime contract, stood to gain from its performance and to lose from its nonperformance.

OPINION BIRDSALL, Presiding Judge. On January 14, 1982, Oracle Foothills Estates, Inc. agreed to sell and Smira, Oliver and Associates agreed to purchase a certain parcel of land near the intersection of Rudasill and Oracle roads in Pima County for $600,000. The written deposit receipt and purchase agreement acknowledged the receipt by Oracle Foothills of a check for $25,000 as earnest money and part of the purchase price. The agreement set closing for February 10, 1982. The agreement also provided that the purchaser could have until closing to conduct site studies of the acreage in order to determine if it could be developed. If the purchaser was dissatisfied with the results of these studies, it could terminate the agreement by written notice to the seller and the escrow agent. The agreement thus would be void and the earnest money was to be returned to the purchaser. The purchaser engaged an engineer to determine the development feasibility of the property, and subsequently decided that it was improbable the property could be developed as it had intended. However it failed to notify the seller by the closing date, February 10. The $25,000 check was returned to Oracle Foothills by the bank twice, dishonored for reason of insufficient funds. The check was never honored. On February 10, 1982, the purchaser caused a notice to be mailed to both the seller and escrow agent that it was cancelling the escrow. That notice was received by each of them on February 17. However, on February 12, the seller, by letters to the escrow agent and the purchaser, declared the purchaser in default for failure to close. The escrow agent then notified the purchaser that it must perform by February 25 or the agreement would be cancelled and the earnest money would be forfeited. The escrow agent mailed this demand to the purchaser on February 12. This notice of cancellation was also provided for in the deposit receipt and agreement, as was the forfeiture. See O’Hare v. Griesmer, 132. Ariz. 30, 643 P.2d 733 (App.1982). The seller was the plaintiff in the trial court, seeking a judgment for the $25,-000. As requested, pursuant to Rule 52(a), Arizona Rules of Civil Procedure, 16 A.R.S., the trial court made findings of fact and conclusions of law. The findings included the facts related above. Insofar as the findings also suggested that oral notice of cancellation may have been given prior to February 10, no evidence supports any such finding. The only evidence tending to show any such oral notice is the testimony of Lawrence Smira that on February 10, he told Mr. Diamos, seller’s agent, “I wasn’t going to do the deal, but I was still trying to sell it.” As the trial court noted, Mr. Diamos denied that even those words were spoken and testified that Smira said he would see him in Tucson on February 8. The trial court's finding was only that both witnesses so testified. That is not a finding which is binding on this court. The trial court ruled in favor of the defendant-purchaser, finding that because its notice of cancellation was first and timely, the agreement had become null and void and the seller was not entitled.!» the earnest money. We disagree. As the appellant contends, the notice of February 10th was not received by the seller until seven days later and was therefore untimely. Actual notice of the cancellation was required. Freedman v. Continental Service Corp., 127 Ariz. 540, 622 P.2d 487 (App.1980). The notice from the purchaser was not received until February 17. That was seven days after the required closing date. The later notice of default did not extend that time. Having failed to give timely notice, the purchaser had two options, perform or forfeit the earnest money. Even though the courts abhor a forfeiture, a valid contract will be enforced according to its terms. Freedman, supra. Reversed and remanded with directions to enter judgment for $25,000, interest from February 10, 1982, and attorney fees, all in favor of the appellant. We also award attorney fees and costs on appeal. The appellant is directed to file a statement pursuant to Rule 21(c), Rules of Civil Appellate Procedure, 17A A.R.S. (Supp. Pamph.1984). HOWARD and FERNANDEZ, JJ., concur.

OPINION MEYERSON, Presiding Judge. This is an appeal from an order of the superior court granting summary judgment in favor of appellees Apache County and its board of supervisors (collectively referred to herein as Apache County). Appellants Mountain States Legal Foundation, the Arizona Tax Research Association, Richard and Myma Udall, and Gary and Dianne McDonald (collectively referred to herein as taxpayers), filed this action to invalidate Apache County’s exclusion of the county free library system tax and the county’s contribution to fire districts from the ad valorem tax levy limitation imposed by art. IX, § 19 of the Arizona Constitution. We affirm in part and reverse in part. The parties stipulated that the levy limitation calculated by Apache County for fiscal year 1982-83 was $204,058. It was undisputed that during that fiscal year Apache County projected a tax levy of $10,-800 for the county free library system, and $63,983 to finance its contribution to volunteer fire districts. It was also undisputed that Apache County excluded both these amounts from the calculation of its levy limitation. The parties filed cross-motions for summary judgment. The trial court entered summary judgment for Apache County and against taxpayers on all counts. The trial court also held, sua sponte, that appellant Mountain States Legal Foundation (Foundation) had no legal standing as a plaintiff in the action, and dismissed it as a party on that basis. Taxpayers timely appealed. I. CONSTITUTIONAL AND STATUTORY BACKGROUND By special election on June 3, 1980, the voters of Arizona approved a constitutional amendment to place taxing restraints on local governmental bodies. Proposition 107, which was subsequently to become art. IX, § 19, became effective on June 28, 1980, and was made applicable for all tax years after December 31, 1981. The portions of the amendment relevant to the issues in question here state: (1) The maximum amount of ad valorem taxes levied by any county, city, town or community college district shall not exceed an amount two per cent greater than the amount levied in the preceding year. (2) The limitation prescribed by subsection (1) does not apply to: (b) Ad valorem taxes or assessments levied by or for property improvement assessment districts, improvement districts and other special purpose districts other than counties, cities, towns and community college districts. The voters apparently accepted the argument of the proponents of the constitutional amendment that unrestricted government spending at all levels contributes to, or even creates, inflation. The rationale underlying the amendment is that excessive spending can be curbed by placing limits on the property taxation powers of local governmental units. The primary effect of art. IX, § 19, is to limit increases in the ad valorem taxes levied by any county, city, town or community college district to a maximum of two percent in any year above the amount levied in the preceding year. However, the amendment expressly excepts certain ad valorem taxes or special assessments levied (1) for specific purpose bonded indebtedness or other long-term obligations; (2) “by or for property improvement assessment districts, improvement districts and other special purpose districts other than counties, cities, towns and community college districts;” and (3) for county support of certain school districts. Id. The two percent limitation was intended to be incorporated into the computation for allowable property taxes for subsequent years regardless of whether the political subdivision actually levied the taxes to the extent permissible. The amendment further permitted voters within the political subdivision to authorize tax levies in excess of the two percent limit through override elections. The legislature was directed to enact laws to implement the amendment. Enabling legislation was subsequently enacted. Among other things, the legislature classified taxes as being either “primary” or “secondary.” “Primary property taxes” are “all ad valorem taxes except for secondary property taxes.” A.R.S. § 42-201(7) (Supp.1984). “Secondary property taxes” are ad valorem taxes or special property assessments used to pay the principal of and the interest and redemption charges on any bonded indebtedness or other lawful long-term obligation issued or incurred for a specific capital purpose by any municipality, county or taxing district, and amounts raised by ad valorem taxes or assessments levied by or for assessment districts and for limited purpose districts other than school districts and community college districts and amounts levied pursuant to an election to exceed a budget, expenditure, or tax limitation. A.R.S. § 42-201(9) (Supp.1984). Primary taxes are those which are subject to the constitutionally imposed levy limitation, and secondary taxes are those which are not. See A.R.S. § 42-301 (Supp.1984). By so classifying ad valorem taxes, the legislature has evidenced its purpose of imposing a limitation on the maintenance and operational expenses of local governments (primary taxes) while preserving the right of these entities to exceed the limitation in certain limited circumstances (secondary taxes). The latter, generally speaking, include expressly designated special, specific or limited purpose taxes or assessments. Thus, secondary property taxes refer to those taxes outside of the constitutionally imposed levy limitation. II. THE COUNTY FREE LIBRARY SYSTEM TAX For the tax year in question, Apache County assessed $10,800 for the “county free library system.” This tax was levied pursuant to the authority of A.R.S. § 11-912. Taxpayers contend that the library tax is a primary tax and therefore subject to the levy limitation. Apache County contends that the library system is a special purpose district and therefore exempt from the levy limitation. We hold that the library tax is a primary tax and thus subject to the levy limitation. Our conclusion is based upon a 1981 amendment to A.R.S. § 11-912(A). Prior to the 1980 constitutional change, A.R.S. § 912(A) provided that the board of supervisors “shall annually levy in the same manner and at the same time as other county taxes are levied, and in addition to all other taxes,” a tax sufficient to pay the expenses of the library system. In 1981, the statute was amended to read: The board of supervisors, after a county free library is established, shall annually levy in the same manner and at the same time as other county primary property taxes are levied, and in addition to all other taxes, a ... tax sufficient to insure the payment of ... expenses of the county free library system. Laws 1981, ch. 317, § 4 (emphasis added). We think it is self-evident that the legisla ture intended that the library tax be considered a primary property tax and subject to the levy limitation. Apache County’s primary argument is that the library system is a “special purpose district” and therefore excluded from the levy limitation. Special purpose districts are those enumerated in the Arizona Constitution, art. XIII, § 7, or established by the legislature pursuant to its sovereign powers. Industrial Dev. Auth. v. Nelson, 109 Ariz. 368, 375, 509 P.2d 705, 712 (1973). Special purpose districts are political subdivisions of the state and are vested with all of the “rights, privileges and benefits” granted municipalities. Ariz. Const. art. XIII, § 7. Special purpose districts typically have an independently elected governing body, the power to levy and collect taxes, and a corporate existence separate and apart from any other political unit. See generally 3A C. Antieau, Local Government Law (1983). The county free library system is simply not a special purpose district. No separate legal entity is established under the enabling legislation. A.R.S. §§ 11-901 to 11-916. Unlike a district which is controlled by a board of directors, the library system is “under the general supervision of the [county] board of supervisors.” A.R.S. § 11-909(A). The library system has no direct taxing authority; its expenses are solely defrayed by revenues raised by the board of supervisors. A.R.S. § 11-912. Finally, expenses affiliated with the county library system appear to be the type of operational and maintenance expenses of local government intended by the legislature to be subject to the levy limitation. We also reject Apache County’s contention that including the library tax within the levy limitation would violate the territorial uniformity requirement of art. IX, § 1, of the state constitution. This section provides in part that “[a]ll taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax.” The county notes that the Town of Springerville has voluntarily chosen not to participate in the library system. A.R.S. § 11-903(B). It argues that because of this exclusion, “if the county is the taxing entity the uniformity clause is violated.” But the legislature has expressly provided that property within such excluded communities is not subject to the library system tax. A.R.S. § 11-903(B). Therefore, the uniformity provision is satisfied because only those areas in the county which benefit from the library system are subject to the tax. See Apache County v. Atchison, Topeka and Santa Fe Ry. Co., 106 Ariz. 356, 359-60, 476 P.2d 657, 660-61 (1970). III. THE FIRE DISTRICT CONTRIBUTION Apache County contributed $63,983 to fire districts during the year in question. This sum was raised through property taxes and excluded from the levy limitation. It was therefore categorized as a secondary tax. Taxpayers contend that because $63,983 is contributed to the fire districts from the county general fund, the contribution is an expenditure and not a tax and therefore must be included under the primary tax category. We agree with Apache County that its “contribution” must be considered as a secondary tax. Fire districts were originally formed as volunteer fire companies. See generally Frye v. South Phoenix Volunteer Fire Co., 71 Ariz. 163, 224 P.2d 651 (1950). Today, fire protection for unincorporated areas is provided through volunteer fire districts established following an election conducted by a county board of supervisors. A.R.S. § 9-1001 (Supp.1984). Operating revenues for fire districts are derived from two sources. First, the county board of supervisors “shall pay into the fire district fund____from the county general fund” an amount equal to sixty cents per $100 of taxable valuation on the property located within each fire district. A.R.S. § 9-1005(A) (Supp.1984). Second, the supervisors are required to levy a “fire district tax,” A.R.S. § 9-1005(E) (Supp.1984), on all property within a fire district’s boundaries in an amount not to exceed $2.60 per $100 of taxable valuation. A.R.S. § 9-1005(C) (Supp.1984). Taxpayers concede that the tax levied pursuant to A.R.S. § 9-1005(C) is a secondary tax. They contend, however, that the contribution from the general fund is an “expenditure” and therefore not a tax. Hence, according to taxpayers, the contribution cannot be a secondary tax outside the levy limitation. We disagree. Initially, volunteer fire companies received no financial support from the counties. Revised Code of 1928 § 1511. But after the Arizona Constitution was amended in 1940 to allow for a vehicle license tax, Ariz. Const, art. IX, § 11, the counties were authorized to pay into the “volunteer fire company fund” a percentage of the value of vehicles registered in the area served by the fire company. Laws 1941, ch. 49, § 1. In 1977, this statute was amended to provide for a contribution based upon the “taxable valuation of all property within the boundaries” of the fire district. Laws 1977 ch. 107, § 1. The statute now requires the counties to pay into each fire district fund “an amount equal to sixty cents per one hundred dollars of taxable valuation” of property within the district boundaries. A.R.S. § 9-1005(A) (Supp.1984). The source of the contribution was changed because of the expense and difficulty faced by the counties in maintaining records of vehicle ownership within the fire districts. Hearing on S.B. 1046, Arizona House of Representatives, Committee on Counties and Municipalities, May 5, 1977. It is apparent that the legislature intended that the source of the contribution be an ad valorem tax on property within the fire district. Although Apache County’s general fund is derived from revenue sources other than property taxes, A.R.S. § 11-492, it is clear that property taxation is the legislatively approved means of financing this contribution. It has been stipulated in this case that the County contributed $63,983 to fire districts and that this sum was raised through a property tax. We therefore conclude that the levy limitation is not applicable to Apache County’s contribution to the fire districts because the contribution is based upon an ad valorem tax levied for a special purpose district. Ariz. Const, art. IX, § 19. In summary, we hold that the library system tax is a primary tax and Apache County’s contribution to the fire district fund is a secondary tax. The trial court correctly ruled that the Foundation lacked standing to assert the interests of its members. The summary judgment is affirmed in part and reversed in part. GRANT and HAIRE, JJ., concur. . The Foundation has attached to its brief documentary materials in support of its claim of standing. These documents were not included in the superior court record. Based upon the information before the trial court, we cannot conclude that it erred in holding that the Foundation lacked standing to assert the interests of its members. . But see A.R.S. §§ 15-994, 42-301(E) (Supp. 1984) (county tax levied for equalization assistance for education is expressly exempted from the levy limitation). . E.g., A.R.S. § 45-961 (Supp.1984) (agricultural improvement district); A.R.S. § 45-1611 (irrigation district). . E.g., A.R.S. §§ 30-571 to 30-577 (electrical district). . See A.R.S. §§ 9-1151 to 9-1156 (industrial development authority). . In 1985, the statutes pertaining to volunteer fire districts were transferred and renumbered for placement in Title 48. Laws 1985, ch. 190, § 6. In this opinion, the statutes will be referred to as they were numbered prior to the 1985 change. . Taxpayers’ characterization of the contribution as an expenditure appears to be incorrect. The Arizona Constitution defines expenditure as “any authorization for the payment of local revenues." Ariz. Const. art. IX, § 20(3)(C). Local revenues are "funds, fees, fines, penalties, tuitions, property and receipts of any kind whatsoever received by or for the account of a political subdivision or any of its agencies, departments, offices, boards, commissions, authorities, councils and institutions.” Id. § 20(3)(d). Because the property tax authorized under A.R.S. § 9-1005(A) (Supp.1984) is levied for fire districts and not for the county or any of its departments or agencies, the revenues are not local revenues and therefore the county’s contribution is not an expenditure within the constitutional definition.

OPINION HATHAWAY, Presiding Judge. Appellant, after trial to the court, was convicted of unlawful possession of marijuana for sale. He was sentenced to four years’ probation. On appeal he raises two questions for review: (1) Did the court err in denying his motion to suppress the fruits of a warrantless entry into his home and (2) was he denied his right to effective assistance of counsel? On July 24, 1983, Tucson police received a call from a neighbor of appellant stating that there was a great deal of yelling and pounding going on in appellant’s home. They responded and observed that the screen door was torn and the wooden door was open. They could see through the screen a great disarray, including broken furniture, glass and a trail of blood. They knocked and appellant and another man appeared; both were covered with blood, one bleeding from head wounds and the other a lacerated foot. When asked what was going on, the men answered that they had had a fight. The police observed that a trail of blood led from the living room to another room and requested entry to ascertain that there were no other injured persons in the house. They were denied permission and entered anyway. In checking the house, they observed marijuana in a open closet. The officers then obtained a search warrant, on the basis of what they had seen in plain view and continued their search of the premises. Both men were arrested for possession of marijuana for sale, cultivation of marijuana and possession of marijuana. A subsequent indictment charged the two with a single count of possession of marijuana for sale, a class 4 felony. Appellant contends on appeal that the police made a warrantless search and thus the fruits of this search should have been suppressed. Appellee responds that there are two exceptions to the warrant requirement, “exigent circumstances” and “emergency aid,” citing State v. Fisher, 141 Ariz. 227, 686 P.2d 750 (1984). The Fisher opinion sets forth the elements of “emergency aid” as follows: “ ‘(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. ‘(2) The search must be not primarily motivated by intent to arrest and seize evidence. ‘(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.’ ” 141 Ariz. at 237-238, 686 P.2d at 760-761 (quoting People v. Mitchell, 39 N.Y.2d 173, 177-178, 347 N.E.2d 607, 609, 383 N.Y.S.2d 246, 248 (1976), cert. denied, 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191 (1976)). In view of the amount of blood, broken furniture and glass in plain view of the police, it was not unreasonable for them to assume that there may have been other persons in the home in need of emergency aid. It would have been unreasonable to take the word of two men who were covered in blood and physically injured that there were no more persons in need of help in the home. The police response was to a disturbance complaint, not to search and seize. The search of the home to find more possible victims was reasonable. The basic elements of Fisher with regard to “emergency aid” were met. Moreover, in analyzing the words “exigent circumstances,” the Fisher court found the “exigent circumstances” exception applies when police have probable cause and reasonably believe that the delay in getting a warrant will result in the loss of evidence or when they believe a crime is being or has just been committed and that delay will endanger the life or safety of a person inside the home. 141 Ariz. at 240, 686 P.2d at 763. In view of the physical injuries of the two men responding to the officers’ knock and the blood and damage within plain sight, it was not unreasonable for the officers to believe that a helpless victim might be lying within the house and that a delay to seek a warrant might endanger the safety or life of that person. State v. Sainz, 18 Ariz.App. 358, 501 P.2d 1199 (1972). “Exigent circumstances” according to the Fisher court were present. We find no abuse of the trial court’s discretion in denying appellant’s motion to suppress. The appellant argues that his right to effective assistance of counsel was denied when his co-defendant pleaded guilty to the charges and thus precluded his attorney, who represented both defendants, from cross-examining the co-defendant, citing United States v. Alvarez, 580 F.2d 1251 (5th Cir.1978). Appellee responds that appellant’s counsel never had any occasion to cross-examine the co-defendant because the case was submitted to the court on the basis of the suppression hearing testimony and the police reports. Nor was appellant prejudiced at sentencing because appellant’s lawyer was able to argue that since both defendants were equally culpable, their sentences should be the same. Both were granted probation. We find appellant had adequate representation at trial and was not prejudiced by counsel’s representation of his co-defendant. Affirmed. LACAGNINA and LIVERMORE, JJ., concur.

OPINION HAIRE, Judge. The only issue presented in this review of an award entered by the respondent Commission is whether a carrier’s lien pursuant to A.R.S. § 23-1023 extends to post-judgment interest accrued and collected by the injured workman on his judgment against a negligent third party. The workman, David T. Young (claimant), was injured in an accident arising out of and in the course of his employment. His claim was accepted by the respondent carrier, and $9,600.14 in workers’ compensation benefits was paid to him. Prior to the entry of the award which is the subject of this review, his condition became stationary with a ten percent permanent partial impairment, with no loss of earning capacity. Therefore, his present entitlement to payment of workers’ compensation benefits ceased, subject to a possible right to future benefits upon the occurrence of the contingencies set forth in A.R.S. § 23-1061(H). In his action against the negligent third party, claimant obtained a judgment in the amount of $287,500, which was affirmed on appeal by the Arizona Supreme Court. Post-judgment interest accrued in claimant’s favor in the amount of $82,634.02, resulting in a total of $370,134.02 as the amount actually collected by claimant. After deducting $123,378 for attorney’s fees, $11,691.34 for costs and expenses, and $9,600.14 for the respondent carrier’s lien for previously paid benefits, the net amount received by the claimant was $225,-464.54, which included $55,089.35 as post-judgment interest. Upon receipt of the above information, the carrier issued a notice of claim status asserting a lien, claiming a credit against claimant’s possible future benefits in the amount of $225,464.54, which included the post-judgment interest received by claimant. The claimant admits that the carrier is entitled to credit in the amount of $170,375.19 against its contingent future liability for compensation benefits, but opposes the carrier’s assertion of a lien on the amount of $55,089.35, representing post-judgment interest. After considering the arguments of the parties, the Commission issued its findings and award holding that the carrier was entitled to assert a lien credit on the total amount, including the post-judgment interest. Claimant has sought review by this court of that award. It is our opinion that the resolution of the issue presented is governed entirely by the express provisions of A.R.S. § 23-1023(C), and we hold that the Commission correctly applied the statute in arriving at its determination that the carrier’s lien credit extended to the post-judgment interest collected by claimant. A.R.S. § 23-1023(C) provides in pertinent part: “[T]he insurance carrier ... shall have a lien on the amount actually collectable from such other person to the extent of such compensation ... paid. This lien shall not be subject to a collection fee. The amount actually collectable shall be the total recovery less the reasonable and necessary expenses, including attorneys’ fees, actually expended in securing such recovery. The insurance carrier ... shall contribute only the deficiency between the amount actually collected and the compensation ... provided or estimated ... for such case.” The statute allows the carrier to assert a lien on the “amount actually collectable”, and limits the carrier’s further liability to the deficiency between the “amount actually collected” and the compensation benefits accruing to the injured worker. The “amount actually collectable” is defined as including “the total recovery” less specified deductions for expenses and attorney’s fees. The issue resolves into a determination of what sums constitute the “amount actually collectable” or “the amount actually collected”. The statute initially speaks in all-inclusive terms when it defines the “amount actually collectable” as including the “total recovery”. It then authorizes as deductions from the total recovery “reasonable and necessary expenses, including attorney’s fees”. There is no contention that interest falls within the specifically authorized exclusions. The Arizona decisions involving this statutory provision have clearly rejected all attempts to carve out additional exceptions to the broad language of the statute. Thus, in Ruth v. Industrial Commission, 107 Ariz. 572, 490 P.2d 828 (1971), the Arizona Supreme Court held that under the statute the carrier’s lien rights could not be reduced by requiring the carrier to pay a portion of the claimant’s attorney’s fees. Later, in Liberty Mutual Ins. Co. v. Western Casualty & Surety Co., 111 Ariz. 259, 527 P.2d 1091 (1974), the court held that the carrier’s lien extended to a recovery by the claimant in a malpractice action, and that error had been committed in reducing the statutory lien by the amounts attributable to pain and suffering, loss of consortium and other elements of the individual claimant’s damages which were not compensable under the Workers’ Compensation Act. The court stated: “The Legislature has provided for a lien against the ‘amount actually collectible’ from the third party and ‘the amount actually collectible shall be the total recovery less reasonable and necessary expenses including attorney’s fees actually expended * * *.’ There is no principle of law short of constitutional infirmities in the statute which would permit us to set aside or ignore the express language of the Legislature.” 111 Ariz. at 262, 527 P.2d at 1094. Finally, in Hendry v. Industrial Commission, supra, the Arizona Supreme Court reiterated its prior holding in Liberty Mutual, supra, stating: “By the provisions of ARS § 23-1023(C) (as amended, 1968), an insurance carrier is given a lien on the amount ‘actually collectible’ which is defined as ‘the total recovery’ minus attorneys’ fees and reasonable expenses of litigation or necessary efforts to effect a settlement to the extent of the compensation, and medical, surgical and hospital benefits paid. Liberty Mutual Insurance Co. v. Western Casualty & Surety Co., supra. While this may have an inequitable result in certain cases, the legislature has clearly established in the wording of the statute that the entire recovery be subject to the compensation carrier’s lien with only the specific exceptions noted above and not at issue now.” 112 Ariz. at 109, 538 P.2d at 383. The teaching of these decisions is that, with the exception of the specific statutorily authorized deductions, a carrier’s lien extends to the total recovery collected by the claimant, and even though the courts might consider the result inequitable, the remedy lies with the legislature. Notwithstanding the foregoing, the claimant in this case argues that the word “recovery” in the statute should be limited solely to the damages resulting from the wrongful act of the third party, and that post-judgment interest does not fall in that category. Rather, claimant urges post-judgment interest is compensation for damages resulting from the loss of use for a period of time of the recovery awarded in the judgment itself. We reject this contention. Here, the statute speaks in terms of the “total recovery” (emphasis added) and the “amount actually collected”. (Emphasis added). Unquestionably, the recovery of interest on the judgment is a part of the overall or total recovery authorized by the judgment, and, of course, it was “actually collected” by claimant. In our opinion the adoption of claimant’s contention would be in derogation of the intent expressed in these provisions. The award is affirmed. BROOKS and GRANT, JJ. . Summarized, the judgment, interest and dispostion of proceeds was as follows; Judgment $287,500.00 Post-judgment interest 82,634.02 Total amount collected 370,134.02 Less attorney’s fees $123,378.00 Costs and expenses 11,691.34 Carrier's lien 9,600.14 $144,669.48 Amount paid to claimant 225,464.54 . Under Arizona law, a carrier is entitled to assert a lien for contingent future benefits against the amount recovered by a claimant in a third-party action. See Hendry v. Industrial Commission, 112 Ariz. 108, 538 P.2d 382 (1975); Matter of Swartz, 141 Ariz. 266, 686 P.2d 1236 (1984). . The nonliability of the carrier for a portion of the claimant’s attorney's fees may in many instances be illusory. Thus, in this case, if in the future the claimant becomes entitled to additional workers’ compensation benefits and exhausts the lien credit, thereby resulting in payment of additional benefits to the claimant by the carrier, the carrier at that time effectively commences to bear the burden of the claimant’s attorney’s fees, because the amount of the lien has been decreased to the extent of the initial deduction reimbursing claimant for those fees.

OPINION GRANT, Judge. The appellant, Paul Cecil O’Connor (defendant), was charged by indictment with Count I, burglary in the first degree, a class 2 dangerous felony committed with an accomplice; and Count II, theft, a class 3 felony. The defendant entered into a written plea agreement in which he agreed to plead guilty to Count II, theft, a class 3 felony. The plea agreement stipulated as follows: The defendant will receive a sentence of 7.5 years prison consistent with the following additional terms: Defendant to be sentenced as non-dangerous, non-repetitive offender. Defendant to cooperate fully with law enforcement officials in attempting to locate the stolen property. The state, in exchange for the plea, agreed to dismiss Count I. Additionally the state did not file an allegation of prior conviction although the defendant had previously been convicted of second degree murder. However, the prior conviction was used as the aggravating circumstance to justify the increased sentence of 7.5 years in prison. Following a restitution hearing the defendant was sentenced to 7.5 years in prison and restitution was ordered in the amount of $4,150. The defendant appeals challenging only the order of restitution. On appeal he raises the issue of whether the restitution was properly imposed and, if so, whether the amount was excessive. The defendant first argues that the imposition of any restitution was improper because it was contrary to the stipulated plea agreement. At the time of the change of plea the court advised the defendant as follows: THE COURT: You are entering into a plea agreement and are agreeing to plead “guilty” to Count II, Theft, a Class 3, as set forth in the indictment. In exchange for your plea agreement you would receive a sentence of 7.5 years in prison. You would be sentenced as a non-dangerous, non-repetitive offender. You would cooperate fully with law enforcement officials in attempting to locate the stolen property. Count I would be dismissed. Is that your understanding of the plea agreement you are making, Mr. O’Con-nor? THE DEFENDANT: Yes, sir. At the change of plea hearing there was no mention of restitution by either the court, the prosecution or the defendant. The court said: You are pleading to Count II of the indictment. It says that on or about the 15th of December, 1983, in the vicinity of 264 Marina Boulevard in Riveria, Mohave County, Arizona, that you controlled the property of a Benny Neal Roseberry, having a value of a thousand dollars or more. What happened? THE DEFENDANT: I took his truck, and I had to make my way to Texas, pick up my boat. That’s as far as that went — is I took the truck. Later in the same hearing the defendant said: Because all I’m copping to is I took the truck and I readily admit it, that I took the truck, but that’s as far as that goes. The prosecutor then explained the basis of the burglary charge which was dismissed. The burglary count was also filed against two accomplices who took property from a house which the defendant shared with the victim and placed it in the victim’s pickup truck. The prosecutor then stated: “The combined value of the property was approximately $4,537, but the vehicle itself was a ’77 Ford pickup with wide tires, a sun roof, and the victim estimated that was worth at least a thousand dollars.” The court asked whether the truck was recovered and was told by both the defendant and the prosecutor that the truck had been recovered. At the time set for sentencing the defendant discovered that the presentence report not only recommended that he receive the stipulated sentence of 7.5 years in prison but that he pay restitution in the form of a fine in the amount of $6,850. The defendant objected to this amount and the court continued the matter for a restitution hearing. At the time set for the restitution hearing the court asked whether the restitution matter had been resolved. The defendant’s attorney answered: “It hasn’t been resolved, your Honor. We have witnesses here today to establish value of the property that was taken and what has been returned to the victim, with the hope that it will aid the court in coming to a fair figure for restitution.” A restitution hearing followed at which numerous witnesses testified. The testimony concerned guns and various other items which made up Count I of the original indictment — the count that the state had agreed to dismiss. The court then proceeded to sentence the defendant to 7.5 years in prison with credit for presentence incarceration time plus $4,150 as restitution. We have determined that restitution was contrary to the written plea agreement. We are dismayed that counsel has filed an opening brief raising valid issues on appeal but without a single citation to authority. Counsel has also failed to file a reply brief. See generally State v. Lee, 142 Ariz. 210, 689 P.2d 153 (1984); and State v. Carriger, 132 Ariz. 301, 645 P.2d 816 (1982). The defendant was never advised of the possibility of restitution in the plea agreement or at the change of plea hearing. The written plea agreement contained a stipulated sentence but made no mention whatsoever of restitution, nor was the restitution statute cited. This court has held that “it is an abuse of discretion for a sentencing judge to require restitution by a defendant for a crime in which there is no admission or adjudication of guilt or liability, unless the defendant, in a plea agreement or otherwise, consents to such restitution.” State v. Reese, 124 Ariz. 212, 214-15, 603 P.2d 104, 106-07 (App.1979); see also State v. Pleasant, 145 Ariz. 307, 701 P.2d 15 (1985). The imposition of restitution in this case was in effect a breach of the plea agreement because it was contrary to the stipulated sentence. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Sodders, 130 Ariz. 23, 633 P.2d 432 (App.1981). Additionally the trial court failed to consider the economic condition of the defendant as required. A.R.S. § 13-603(C); State v. Hawkins, 134 Ariz. 403, 656 P.2d 1264 (App. 1982). By this opinion we are holding that at a change of plea hearing the judge must inform the defendant that restitution may be imposed and that if there is a stipulated sentence in the plea agreement the stipulation must include restitution in order for restitution to be imposed. Where the trial court has improperly imposed restitution this court may strike the order of restitution and affirm the remainder of the sentence. State v. Monick, 125 Ariz. 593, 611 P.2d 946 (App. 1980). However in this case we remand the case to allow the trial judge to accept the plea agreement with the stipulated sentence or to allow the defendant to withdraw his plea. Having found the trial court’s order of restitution to be improper for the reasons set forth we set aside the judgment of conviction and the sentence. The case is remanded for proceedings in accordance with this opinion. MEYERSON, P.J., and HAIRE, J., concur. . A.R.S. § 13-603(C) (as amended by Laws 1984, Ch. 123 § 1, and Laws 1984, Ch. 124 § 1 effective August 3, 1984) reads: C. If a person is convicted of an offense, the court shall require the convicted person to make restitution to the person who is the victim of the crime or to the immediate family of the victim if the victim has died, in the full amount of the economic loss as determined by the court and in the manner as determined by the court after consideration of the economic circumstances of the convicted person. Restitution ordered pursuant to this subsection shall be paid to the clerk of the court for disbursement to the victim. At the time of defendant’s plea (May 30, 1984) it read: C. If the court imposes probation it may also impose a fine as authorized by chapter 8 of this title and shall require the convicted person to make restitution to the victim of the crime in such amount and manner as the court may order, after consideration of the economic loss to the victim and economic circumstances of the convicted person.

OPINION HOWARD, Judge. On November 1,1978, appellee agreed to loan $7,000 to appellants Donald and Patricia Williams. A promissory note was executed by the parties on this date providing for repayment of the principal and 10% annual interest “on or before 3 months from date.” The last sentence of the note preceding appellants’ signatures stated that the note was secured by “an assignment on the closing of Escrow S.W. 12055.” At the same time, a second realty mortgage was executed by the Williamses evidencing an indebtedness to appellee of $7,000. The property subject to the mortgage was the real property located at 5360 Old Spanish Trail in Tucson. Among the clauses appearing in the mortgage were the following: “Provided always, and these presents are upon the express condition that if the Mortgagor shall pay or cause to be paid to the Mortgagee the just and full sum of SEVEN THOUSAND AND no/100 = = = Dollars, This is an open end mortgage with interest thereon, according to the conditions of a certain promissory note, of even date herewith, executed by the Mortgagor to the Mortgagee, ... In case of the non-payment of any sum or sums of money, either principal, interest, taxes, assessments, or premiums for insurance, herein mentioned or secured, at the time or times when the same shall become due and payable, agreeable to the conditions of said note or these presents, or in case of the failure of the Mortgagor to keep and perform any other agreement, stipulation, covenant or condition herein mentioned. Then and in such case the whole principal sum of said note shall, at the option of Mortgagee, be deemed to have become immediately due, and the same, with all other costs and charges, each and all with interest at the highest legal rate allowable shall thereupon be collectible by a suit at law or by foreclosure of this mortgage in the same manner as if the whole of said principal sum had been made payable when any such failure shall occur as aforesaid.. 4c $ 4c 4c 4: ‡ In case complaint is filed for the foreclosure of this mortgage, Mortgagor hereby covenants and agrees that he will pay to the Mortgagee, in addition to the expenses and costs of the foreclosure suit, reasonable amount found due, as attorney’s fees, and the amount paid by Mortgagee for a title search in preparing such suit, to be included in and become a part of the settlement, if one be made before judgment, or of the judgment, as the case may be and be a lien upon said premises and be secured by this mortgage.” (Emphasis added) Immediately adjacent to the phrase “SEVEN THOUSAND AND no/100” and above the phrase “This is an open end mortgage”, both Donald and Patricia Williams wrote their initials. According to the briefs and pretrial memoranda, appellants did not own the property at 5360 Old Spanish Trail until November 8 or 9, 1978, at which time they apparently acquired at least a beneficial interest. Ap pellants signed the mortgage on November 1, however, and their signatures were duly-notarized. This mortgage was recorded by appellee on April 10, 1979. On April 1, 1979, appellee loaned appellants an additional $5,100. The parties executed a new promissory note on that date in the amount of $12,100 “with interest thereon from April 1st, 1979 at the rate of 12% percent per annum on the balance of principal remaining from time to time unpaid.” Appellants subsequently agreed in writing to an increase in the interest rate to 15% per year. Repayment was due in full on or before June 1, 1979. This note was secured by “a second mortgage on real property.” In addition to these notes, appellants executed a promissory note in the amount of $17,000 to Lloyd and Shirley Van Someren on November 15, 1978. This was somehow related to appellants’ purchase of the property at 5360 Old Spanish Trail from the Van Somerens, who transferred right, title and interest to appellants on November 8 in exchange for $17,000 down and the assumption of a $61,000 mortgage. As security for the note, appellants executed a mortgage on November 15, using the same real property as security. This mortgage was recorded on January 3, 1979. An assignment of this mortgage to Evert and Jennie Plantage, dated December 19, 1978, was recorded on January 4, 1979. On December 22, 1981, appellee exercised her right to declare in default the $7,000 loan and interest thereon to accelerate the payments due and owing, and to foreclose on the November 1, 1978, mortgage. Apparently copies were forwarded to appellants, the Van Somerens, the Plantages and to other parties with security interests in the property. On January 8, 1982, a complaint in contract foreclosure was filed by appellee, seeking $13,894.37 for principal and interest on “the promissory note,” plus interest from the time of judgment to the time of satisfaction of the debt, plus attorney’s fees, costs and delinquent property taxes and insurance premiums. She also requested that the mortgage be foreclosed, the subject property sold by the sheriff, and that she be declared senior lienholder to all but two parties not relevant to our determination of this case. After considering a stipulation of the facts by appellee and appellants, trial memoranda, affidavits and memoranda in support and opposition to appellee’s motion for summary judgment and arguments to the court, the trial court found in favor of appellants and judgment was entered on December 17, 1982. On December 27, 1982, after a phone call by appellee’s counsel to the trial judge, the judgment was vacated by the trial court, sua sponte, and further memoranda and arguments were ordered. On April 19, 1983, after hearing arguments of counsel, the trial judge reversed himself and found that the November 1978 mortgage was valid in the sum of $7,000, the original loan amount, and ordered foreclosure thereof and a sheriff’s sale to satisfy the judgment. The court also held that the subsequent loan of $5,100 was not secured by the mortgage. It allowed appellants credit for payments to Southwest Savings pursuant to the first mortgage but awarded appellee all payments made by her to preserve her rights as lienholder. The total awarded to appellee was $22,372.75 plus costs, and each side was ordered to pay its own attorney’s fees. Appellants contend in their first issue on appeal that the promissory note was secured solely by the assignment of escrow S.W. 12055, which involved another parcel, and that the note was not related to the second realty mortgage executed by the parties on the same day. They also argue that the mortgage was invalid because they had no ownership interest in the property at the time the mortgage was executed. We disagree. It is clear from the face of the mortgage that the two documents are related. The first part of the mortgage, reprinted and emphasized above, clearly acknowledges the existence of a corresponding promissory note executed on the same day. That reference can only be to the promissory note in question here, given the evidence in the record. The note unambiguously states that the security therefor was the assignment of an escrow account. The general rule is that when the terms of a note and a mortgage conflict, the terms of the note prevail. 11 Am.Jur.2d, Bills and Notes, § 71 (1963). However, under Arizona law, substantially contemporaneous instruments will be read together to determine the nature of the transaction between the parties. Phoenix Title and Trust Company v. Stewart, 337 F.2d 978 (9th Cir.1964) cert. denied 380 U.S. 979, 85 S.Ct. 1335, 14 L.Ed.2d 273 (1965). There is nothing in the record of this case or in the limited case law presented to suggest that the acknowledgment of one form of security for the note within the body of the note necessarily excludes the use of additional or independent security. Appellants signed a valid security instrument, the November 1, 1978, second realty mortgage. They are bound by their actions. We find no merit in the appellants’ contention that the mortgage was invalid because they did not yet own the property subject to the mortgage. This argument ignores the Arizona statute and case law regarding after-acquired property. A.R.S. § 33-703(B) specifically provides that “[tjitle acquired by the mortgagor subsequent to the execution of the mortgage inures to the mortgagee as security as if acquired before the execution.” Appellants acquired right, title and interest to the property secured by the mortgage one week after the parties executed the note and mortgage. Under the statute, appellee’s interest in the property arising from the mortgage ripened at the moment the appellants acquired beneficial or legal title to that property and related back to the date the mortgage was executed. The mortgage was valid. Appellants raise two more issues in this case, but do so for the first time on appeal. Both questions concern the validity of the trial court’s vacation and subsequent reversal of the December 17 judgment in favor of appellants and the ethical considerations arising from the facts surrounding these actions. We refrain from addressing them because appellants failed to formally raise them at the trial level. Brown Wholesale Electric Company v. Safeco Insurance Company of America, 135 Ariz. 154, 659 P.2d 1299 (App.1982). We note that the outcome of the substantive question regarding the validity of the mortgage would not change even if we were to address these last two issues, given our decision upholding the instrument as a matter of law. On cross-appeal, appellee challenges the trial court’s decision not to uphold the so-called “dragnet clause” of the mortgage, arguing that the promissory note executed on April 1,1979, specifically referred to the mortgage executed on November 1, 1978, that the second loan was of the same character as the first, and that the second loan was therefore secured by the mortgage. Alternatively, she apparently argues that the instruments, when read together, indicate an intent by the parties to secure the entire debt of $12,100 with the second mortgage executed on November 1. Since our review is limited to the construction of the instruments submitted to the trial court, we stand in the same position as the court and are not bound by its conclusions. See Atchison, Topeka and Santa Fe Railway Company v. Williams Energy Company, 135 Ariz. 541, 662 P.2d 1048 (App. 1983). As noted above, the original mortgage executed by these parties stated that it was open-ended and this particular section of the instrument was initialed by both appellants. The promissory note was executed on April 1, 1979, and refers to “a second mortgage on real property” as its security. There is no other evidence or testimony concerning the second loan. An open-end mortgage “provides for future advances on the given mortgage and increases the amount of the existing mortgage.” Griffith v. State Mutual Building & Loan Ass’n., 46 Ariz. 359, 51 P.2d 246 (1935); Black’s Law Dictionary, 984 (rev. 5th ed. 1979). The open-end mort gage, like other dragnet clauses, “constitutes a continuing offer by the borrower to secure future loans under the security.” Union Bank v. Wendland, 54 Cal.App.3d 393, 404, 126 Cal.Rptr. 549, 557 (1976); See Annot., 3 A.L.R. 4th 690 (1981). In Union Bank, supra, two tests are suggested as methods for analyzing whether the security of the first loan also secures a second loan when a dragnet clause is used. Under the “relationship of the loans” test, the security instrument will secure both loans where the parties’ intent to do this is inferred from the connection between the loans or from their substantially similar nature. The “reliance on the security” test determines whether the second loan relied on the original security. Under this second test, the continuing offer to secure future loans with the first security instrument is not accepted when, for example, the second loan utilizes different security. Under the “reliance on the security” test, we find as a matter of law that the trial court erred. Although we are presented with nothing but the relevant documents, we find that the language of the April 1 promissory note and the November 1 mortgage sustains appellee’s claim. In addition to the fact that appellants initialed the open-end mortgage phrase in the mortgage, the second promissory note states that its security was “a second mortgage on real property.” Since there is only one second mortgage at issue here and the parties to both documents are the same, the inference can be drawn without difficulty. Further, applying the continuing-offer definition of open-end mortgage to this case, we find nothing in the second promissory note that indicates that different security would be used or, alternatively, that the second note would be unsecured. Appellants cite Emporia State Bank and Trust Company v. Mounkes, 214 Kan. 178, 519 P.2d 618 (1974), for two propositions: (1) that dragnet clauses should be strictly construed, and (2) that indebtedness arising from entirely independent transactions is not covered by the dragnet clauses. While we may agree with these propositions in general, we find that the second promissory note was secured by the mortgage nonetheless. We take note of the Kansas Supreme Court’s emphasis in Emporia on the failure of the parties in that case to make reference in the second note to the mortgage which secured the first debt. As mentioned, the second note in our case did refer to the mortgage as the security for the loan. We find that the appellants incurred two obligations, both of which were secured by a valid mortgage. The trial court’s judgment is amended to award to the appellee the money arising from the second promissory note plus interest, taking into account the interest already awarded pursuant to the first loan of $7,000, and the case is remanded for a determination by the trial court of reasonable attorney’s fees in the trial court pursuant to the provisions of the mortgage. BIRDSALL, C.J., and MICHAEL J. BROWN, Superior Court Judge, concur. NOTE: JAMES D. HATHAWAY, J., having recused himself in this matter, MICHAEL J. BROWN, J., was called to sit in his stead and participate in the determination of this decision.

OPINION EUBANK, Judge. This appeal arises out of a suit brought by Amfac Distribution Corporation to foreclose its materialmen’s liens for electrical materials and supplies used in the construction of the Southern Palms Shopping Center in Tempe, Arizona. Hahn Devcorp, Inc., was the owner of the property on which the Southern Palms Shopping Center was being constructed. J.B. Contractors, Inc. was the general contractor on the project. Between April and June of 1981, J.B. Contractors entered into three subcontracts with SWL Electric Corporation for electrical work on three separate buildings or groups of buildings in the project distinguished hereinafter as the Southern Palms stores, the Boston Store, and Thrifty Drug Store. The payments from J.B. Contractors to SWL under these three subcontracts were to be respectively $285,775.70, $48,587.17, and $43,925.26. SWL in turn entered into verbal agreements with Amfac to obtain electrical materials and supplies for each of the three subcontracts. When Amfac began supplying materials to the project in July, 1981, it notified J.B. Contractors and the property owner that it was supplying materials and supplies to the project by sending them preliminary lien notices as required by A.R.S. § 33-992.01 as a prerequisite to filing materialmen’s liens. In September, 1981, J.B. Contractors became concerned that SWL was not properly performing its subcontracts, including failing to pay its suppliers. At that time J.B. Contractors’ president issued instructions to his accounting staff that no further checks go to SWL for monthly progress payments until J.B. Contractors received lien waivers in full from SWL and its suppliers. Accordingly, J.B. Contractors released the October progress payment to SWL on October 22, 1981, only after it had received lien waivers from both SWL and Amfac which waived all claims incurred through that date. Again in November, J.B. Contractors released payment to SWL on November 24, 1981, only after both SWL and Amfac signed lien waivers which waived all claims incurred through that date. Soon afterward, J.B. Contractors removed SWL from the project for breach of contract and hired replacements to finish the three phases of the project. At the time of its removal, SWL had been paid the following amounts by J.B. Contractors under the subcontracts: $245,607.25 for Southern Palms, $41,530.00 for the Boston Store, and $37,886.13 for Thrifty Drug. SWL’s payments to Amfac for materials and supplies had been $151,089.67 broken down as follows: $115,781.80 for Southern Palms, $18,374.61 for the Boston Store, and $16,933.26 for Thrifty Drug. On January 12, 1982, Amfac recorded three notices and claim of liens for materials supplied to the project for which it had not received payment: Southern Palms $131,017.18 Boston Store 23,136.00 Thrifty Drug 21,785.58 TOTAL $175,938.76 Of these claims, only small amounts were attributable to materials furnished after November 24, 1981, the date when Amfac’s last three lien waivers were signed: Southern Palms $1,117.69 Boston Store 40.40 Thrifty Drug 7,634,50 TOTAL $8,792.59 After Amfac’s liens were recorded, J.B. Contractors recorded three statutory discharge of lien bonds issued by Federal Insurance Company for one and one-half times the amount of the liens pursuant to A.R.S. § 33-1004. On July 8, 1982, Amfac filed suit against Hahn Devcorp, Inc.; J.B. Contractors, Inc.; Federal Insurance Company; and various other defendants having an interest in the Southern Palms property to foreclose its liens or to collect against the lien discharge bonds. Soon after suit was filed, J.B. Contractors and Federal Insurance Company made an offer of judgment to Amfac of $9,175.14 which was not accepted. J.B. Contractors and Federal Insurance Company then filed a motion for partial summary judgment requesting that Amfac’s recovery be limited to $8,792.59, the cost of the materials furnished by Amfac after November 24, 1981, the date of the last lien waivers submitted by Amfac for each of the three parts of the project. The trial court agreed that the lien waivers limited Amfac’s recovery, but ruled that they did so only to the extent that J.B. Contractors had paid SWL for the items for which Amfac was making its claims. J.B. Contractors then furnished proof that it had paid SWL or the other subcontractors who finished the projects all monies due under the subcontracts except for $39,353.39. Thereafter, Amfac moved for summary judgment and the trial court, in ruling on the cross-motions for summary judgment before it, entered formal judgment in the amount of $30,873.39 against J.B. Contractors and Federal Insurance Company and dismissed all remaining claims. Both parties appeal from the judgment. The lien waivers executed and delivered by Amfac on November 24, 1981 for each of the three phases of the project were all in essentially the same general form and language. The lien releases for materials supplied to the Thrifty Drug Store, for example, provided as follows: WAIVER OF LIEN FOR LABOR AND/OR MATERIALS November 24 , 19 81 KNOW ALL MEN BY THESE PRESENTS: WHEREAS, the undersigned Claude G. Moore of Phoenix , Arizona, is an authorized representative of Amfac Electric Supply under a verbal agreement to furnish materials for the construction project known as Southern Palms Center, Thrifty . NOW, THEREFORE, BE IT KNOWN that the undersigned, for and in consideration of $ 16,933.26 , and other good and valuable considerations, receipt of which is hereby acknowledged, does hereby waive and release any and all lien, claim or right of lien on the above described building and premises on account of labor or materials, or both, furnished to date by the undersigned pursuant to the aforesaid agreement for said building and/or premises. INV. # AMOUNT Dated this 24 day of November , 19 81 see attached invoices _Claude G. Moore_ Title: District Credit Manager Subscribed and sworn to before me this 24 day of November , 19 81 . Dorothy Groeneveld Notary Public The only differences between this lien release and those executed the same date concerning materials supplied for the other two buildings were the amount of consideration recited and the words typed at the bottom of the form under the heading showing “Inv. #Amount.” On the lien release for Thrifty Drug, the words “see attached invoices” had been typed. The lien release for the Boston Store contained the words “see attached sheets” and that for Southern Palms stated “see attached check.” It is undisputed that no invoices, sheets, or check were in fact attached to the lien waivers when they were delivered to J.B. Contractors by SWL in return for SWL’s November progress payment, but that if they had been, this information would have shown what amount SWL was paying to Amfac out of the check it received from J.B. Contractors and the particular invoices it was paying. Amfac argues that the trial court erred in determining as a matter of law that the lien waivers executed by Amfac on November 24, 1981, bar its claim for material-men’s lien for all materials supplied prior to that date. Amfac contends that in signing the lien waivers of November 24, 1981, it intended only to surrender its lien rights to the extent of the payments made to it, but not to waive its right to liens for materials supplied before those dates for which it had not yet been paid. Amfac argues that the reference on the lien waivers to “see attached invoices,” “see attached check,” and “see attached sheets” creates an ambiguity as to whether the lien waivers were intended to be partial waivers rather than full waivers and therefore precluded the trial court from granting summary judgment. As Amfac points out, summary judgment should not be granted where there is a genuine disputed issue of material fact or even the slightest doubt as to the facts. Granite State Insurance Corporation v. Mountain States Telephone and Telegraph Company, 117 Ariz. 432, 573 P.2d 506 (App.1977). A reviewing court must view the facts and all reasonable inferences therefrom in a light most favorable to the party opposing the motion for summary judgment. Grain Dealers Mutual Insurance Company v. James, 118 Ariz. 116, 575 P.2d 315 (1978). The defendants, however, correctly observe that the interpretation of a contract is a question of law for the court and where the language of a contract is clear and unambiguous it must be given effect as it is written. Hadley v. Southwest Properties, Inc., 116 Ariz. 503, 570 P.2d 190 (1977). Whether a contract is ambiguous or not is also a question of law. University Realty & Development Company v. Omid-Gaf, Inc., 19 Ariz.App. 488, 508 P.2d 747 (1973). There is no fact question for the trier of fact to decide if the court determines that the lien waivers are unambiguous. Defendants’ contention in this case is that the lien waivers unambiguously waived all lien rights Amfac would have had for materials supplied prior to November 24, 1981, whether or not Amfac was ever paid for the materials by SWL. We agree and uphold the trial court’s ruling that the lien waivers are unambiguous. Defendants-appellees have cited us to the case of Country Service and Supply Company v. Harris Trust and Savings Bank, 103 Ill.App.3d 161, 58 Ill.Dec. 599, 430 N.E.2d 631 (1981) which contains facts and an issue nearly identical to that found in this case. In Country Service the lien claimant had executed a lien waiver which purported to release all claim or right of lien for “labor or services, material, fixtures or apparatus heretofore furnished to this date by [Country Service] for the above described premises.” Also printed on the lien waiver form was a “payout order” indicating the payment amount being made for the work completed and showing the balance due to be paid. A question arose whether the lien claimant Country Service was barred from claiming a mechanic’s lien for work performed prior to April 18, 1975, the date of the last “waiver of lien to date.” Country Service argued that in signing the waivers it had intended to surrender its lien rights only to the extent of the payments made to it and to preserve its right to a lien for work performed before those dates, but not yet billed. Country Service argued that the payout orders and lien waiver forms when read together were ambiguous and that extrinsic evidence of the parties’ intent and custom in the trade with respect to the documents should be considered to determine the scope of the lien waivers. In finding no ambiguity in the waivers, the court stated: We do not agree that the lien waivers executed by Country Service may realistically be considered ambiguous. Each of them states in clear, express language that they release and waive any mechanic’s lien or right to such lien against the subject premises due or to become due from the owner on account of labor, material or services heretofore furnished to this date by Country Service. Nor does reference to the separate form designated as a payout order lend weight to Country Service’s argument by limiting application of the lien waivers to the payment made when each were submitted. At most, the statement of account on the payout forms simply provides a review of the status of the contract between Country Service and the contractor, Malone. It does not suggest the designated “balance” was for work actually performed under the contract for which Country Service was then entitled to payment nor does it provide by its terms for a reservation of lien rights contrary to the express terms of the lien waivers. The construction urged by Country Service is unacceptable in light of the explicit terms of lien waiver forms tendered by it for payment. (Emphasis in original). 430 N.E.2d at 635. The court stressed that if the lien claimant had meant to reserve its lien rights as to amounts for which it had not been paid, it should have put appropriate language to that effect in the waiver. Its mere showing of a balance was insufficient. The court found no basis for considering affidavits of the parties regarding their intent or custom in use of the lien waiver forms. We find that the Illinois court’s reasoning in Country Service applies with equal force to the situation found in this case. The lien waivers executed in this case clearly state that Amfac waived and released “any and all lien, claim or right of lien on the above described building and premises on account of labor or materials, or both, furnished to date.” Nothing in the words printed at the bottom of the waiver forms concerning attached “invoices, sheets, or check” detracts from the wording of the lien release that “any and all” liens for materials furnished to date were being released. Even if the “invoices, sheets or check” had been attached to the waiver form, they would have merely shown what Amfac was being paid by SWL but would not have indicated that Amfac was reserving any right to assert its lien rights for materials supplied prior to the date of the lien waiver for which it had not been paid. The deposition of Claude Moore, Amfac’s district credit manager, indicates that he was concerned that the waiver forms might be misinterpreted as a waiver in full for all materials supplied prior to the date of the lien waiver. Mr. Moore’s concerns about the form avail Amfac of nothing in light of his failure to insert words in the waiver form which would have clearly reserved lien rights contrary to the express terms of the lien waivers. Amfac also points out that there was often a 30- to 60-day delay between the time it billed SWL and its receipt of payment from SWL since SWL waited for payment from J.B. Contractors before paying Amfac. Amfac argues that it is unfair that Amfac should be bound to the date in the waiver when Amfac’s billing of SWL was always so far behind. Again, the simple solution would have been for Amfac to more carefully draft the lien waiver to show the proper date from which the lien waiver was to be effective. Other cases cited to us by the parties provide additional confirmation that the trial court correctly decided that the waivers executed in this case were waivers in full rather than partial waivers. In Mountain Stone Company v. H. W. Hammond Company, 39 Colo.App. 58, 564 P.2d 958 (1977) a lien claimant executed a lien release purporting to release “any and all claims thereon through January 16, 1975.” In finding that the lien claimant had intended a full release the trial court stated: Like other contracts, the obvious meaning of the provisions of a release must be given effect. Hyzak v. Greybar, 36 Colo.App. 164, 537 P.2d 1089 (1975). The terms “ ‘[a]ny’ and ‘all’ have been described as the most comprehensive words in the English language.” See North v. Hawkinson, 324 S.W.2d 733 (Mo.1959) (Storckman, J., concurring). Thus, the provision of the release whereby lien claimants “release any and all claims” on the project “Chili Pepper” encompassed their mechanics’ lien rights. If the intent of lien claimants were otherwise, it was incumbent upon them to insert appropriate language limiting the scope of the release. See Goff v. Boma Investment Co., 116 Colo. 359, 181 P.2d 459 (1947). 564 P.2d at 961. In George M. Morris Construction Company v. Four Seasons Motor Inn, Inc., 90 N.M. 654, 567 P.2d 965 (1977), where a lien claimant executed lien waivers even though it had not received full payment, the court found that the lien claimant was nevertheless barred from asserting its lien since it had caused the owner of the property to change its position in reliance on the waiver. As the court stated: Here, the laborers could have refused to sign the waivers or put in a disclaimer as to those amounts they were unsure of having received (i.e. the fringe benefits). But by signing the waivers, the intervenors caused Bellamah to change its position (i.e. paying Morris their wages and fringe benefits). 567 P.2d at 969. In Holbrook v. Webster’s, Inc., 7 Utah 2d 148, 320 P.2d 661 (1958), a lien claimant released “any lien or right to lien.” Thereafter the lien claimant claimed that he had really intended to release the property only insofar as he had received payment for the labor or materials supplied. The court refused to consider his testimony ruling that the unambiguous language of the lien waiver had to be given effect as written: We are of the opinion that no genuine issue of fact is presented by the Lien Release. The only issue is one of law. It does not lie in the mouth of appellant to say that he was mistaken in the legal effect of the release or that he did not intend that it should be given the only legal effect of which it is susceptible. 320 P.2d at 663. Additionally, Amfac argues that an ambiguity exists in the lien waivers because they state that they are based on a verbal agreement with SWL of which J.B. Contractors admitted it had no knowledge of the particular details of the agreement. We agree with the defendants that this argument deserves short shrift. The defendants in requiring lien waivers from Amfac before paying SWL were concerned only in obtaining full waivers. They had no reason to be concerned with the details of the agreement between Amfac and SWL as long as Amfac would sign a waiver releasing all lien rights through the date of the waiver. Reference to the verbal agreement between Amfac and SWL simply creates no ambiguity. Finally, Amfac argues it should not be precluded from foreclosing liens for materials supplied before November 24, 1981, for which it had received no payment because J.B. Contractors did not rely on the three lien waivers or had no right to rely on them. Amfac points out that the date on the checks to SWL was approximately two weeks earlier than the date of the lien waivers. We do not find that the earlier date on the checks creates a fact issue of whether J.B. Contractors relied on the lien waivers in paying SWL. While the president of J.B. Contractors admitted that its checks were written prior to the time it received the lien waivers, he stated positively that the checks were not delivered to SWL and would not have been delivered until the lien waivers were received. Amfac was not able to contradict this fact. Therefore, we find no factual dispute as to whether J.B. Contractors relied on the waivers in releasing payment to SWL. Amfac argues that J.B. Contractors had no right to rely on the waivers without attempting to learn what the sheets, invoices, and checks mentioned on the waivers referred to. We have already stated that if the invoices, sheets or checks had been attached to the waivers, there was nothing about them which would have prevented the waivers from being effective as complete waivers. Therefore, Amfac’s argument that J.B. Contractors had no right to rely on the waivers must fail. For all of the reasons stated herein, we find that the trial court correctly ruled as a matter of law that the lien waivers executed on November 24, 1981, barred Amfac’s claims for materials supplied prior to that date, at least to the extent that J.B. Contractors had paid SWL or the successor subcontracts the full subcontract price. We now turn to the cross-appeal in which the defendants-appellees argue that the trial court should have limited Amfac’s recovery to $8,792.59, the cost of the material it supplied after November 24, 1981. The defendants-appellees argue that it was error for the trial court, instead, to award $30,873.39 to Amfac, representing the portion of J.B. Contractors’ subcontracts with SWL which had not been paid to SWL or to the subcontractors who finished after SWL had been removed. The defendants-appellees attack the portion of the judgment totaling $22,080.80 which is the amount in excess of the cost of materials supplied after November 24, 1981. In making their attack, the defendants-appellees argue only that since Amfac did not enter into a contract with J.B. Contractors, it cannot have any personal liability to Amfac which does not stem from Amfac’s lien rights. This appears to be a correct statement of the law according to Keefer v. Lavender, 74 Ariz. 24, 243 P.2d 457 (1952). This argument, however, does not assist the defendants-appellees because we conclude that the trial court’s ruling that Amfac have judgment for $30,873.39 actually stemmed from Amfac's lien rights. The trial court determined that Amfac was entitled to said amount by reasoning that Amfac’s lien waivers did not bar it from asserting its lien rights to the extent that J.B. Contractors was unjustly enriched by receiving materials under the subcontract with SWL for which it had made no payment. The trial court’s ruling was clearly one based on equitable principles. See Costanzo v. Stewart, 9 Ariz.App. 430, 453 P.2d 526 (1969). Although we have been cited to no case precisely on point, we find the suggestion in some of the cases cited by the parties that lien waivers are valid only to the extent that they cause other parties to rely to their detriment on them. For example, in Mountain Stone Company v. H. W. Hammond Company, 564 P.2d 958, 960 (Colo.App.1977), the court found the lien claimants estopped to assert lien rights because the landowners had relied upon the lien releases in making payments to the contractors. Similarly, in George M. Morris Construction Co. v. Four Seasons Motor Inn, Inc., 90 N.M. 654, 567 P.2d 965, 969 (1977), the court stated that a party executing a lien waiver will not be heard to assert its invalidity against an owner who has changed his position to his detriment in reliance upon the waiver. J.B. Contractors relied to its detriment on the waivers only to the extent that it paid out money owed under the subcontracts with SWL. We therefore find no error in the trial court’s conclusion that the lien waivers should not be given effect to the extent that they allow J.B. Contractors to receive a windfall at Amfac’s expense. However, we do find that a factual dispute was shown by the record as to whether J.B. Contractors in fact was being unjustly enriched. J.B. Contractors revealed in the trial court that various third parties were also laying claim to the monies that had not been paid to SWL under the subcontracts, including the Internal Revenue Service. In view of the fact that a question of material fact exists on this issue, we find that summary judgment was not proper and that this portion of the case should be returned to the trial court for a factual determination of whether the defendants have had to pay any of the money owing under the SWL subcontracts, above the $8,792.59 amount, to other creditors of the defendants. We also note that Amfac, in reply to the defendants-appellees’ argument on the cross-appeal that the judgment should have been held to $8,792.59, claims that the trial court should have granted the full $39,-353.39 instead of allowing the offsets which lowered the judgment to $30,873.39. Amfac’s argument is one which would increase its award and therefore should have been made, if at all, in its opening brief. Amfac did not make this argument in its opening brief and is therefore precluded from raising it for the first time in its reply brief. It is improper to raise new issues in the reply brief. Arnold v. Cesare, 137 Ariz. 48, 668 P.2d 891 (App.1983). Defendants-appellees J.B. Contractors and Federal Insurance Company have requested attorney’s fees from this court pursuant to A.R.S. § 12-341.01 which allows the successful party in an action arising out of contract to be awarded reasonable attorney’s fees. Since the appellees have succeeded on appeal only in part and the rest of the case has been remanded to the trial court, any award of attorney’s fees should await the trial court’s determination as to that portion of the case so that the ultimately successful party can be determined. Similarly, appellees’ request for costs accrued after their submission of an offer of judgment for $9,175.14 pursuant to Rule 68 of Arizona Rules of Civil Procedure must await the trial court’s determination after remand when it will be known whether the judgment entered will be less than the amount of the offer of judgment. The judgment of the trial court is affirmed in part and reversed and remanded in part for proceedings not inconsistent with this decision. CORCORAN, P.J., and KLEINSCH-MIDT, J., concur. . The full amount left unpaid to SWL under the subcontracts after all changes had been incorporated was $39,353.39 from which the trial court allowed offsets of $6,500.00 for J.B. Contractors’ attorney’s fees and costs in defending suits arising out of the SWL contracts and $1,980.00 for J.B. Contractors’ costs for the statutory discharge of lien bonds. The amount of the judgment was thereby reduced to $30,873.39. J.B. Contractors’ contracts with SWL provided for it to receive attorney’s fees and costs incurred through default of SWL.

OPINION LIVERMORE, Judge. The Reeves’ marriage of 37 years was dissolved by decree entered in June 1984. Mrs. Reeves suffered medical problems, had a tenth grade education and had worked in the home throughout her marriage. Mr. Reeves was 61 years old. The decree awarded $400 each month in spousal maintenance to Mrs. Reeves. The decree stated that: “The Court notes the present plans of petitioner to retire in approximately May of 1985, at age 62 years, and to then commence receiving Social Security and union pension benefits. However, at that time respondent will be only age 57 or 58 years and will not be entitled to Social Security benefits on petitioner’s account until she is age 62. If he voluntarily chooses to retire at age 62 or at anytime before age 65 and his income is reduced thereby, such will not be grounds to reduce spousal maintenance. It is the court’s intention that, if petitioner retires at age 65 or is retired then or later, and there has been a substantial and continuing change in petitioner’s income, the amount, terms and conditions for spousal maintenance may be modified.” Mr. Reeves appeals from this portion of the decree arguing that it forecloses him from making a showing of changed circumstances if he retires at age 62. A.R.S. § 25-327(A) provides that a maintenance decree may be modified “only upon a showing of changed circumstances which are substantial and continuing.” “The changed circumstances alleged must be proved by a comparison with the circumstances existing at dissolution.” Richards v. Richards, 137 Ariz. 225, 226, 669 P.2d 1002, 1003 (App.1983). One of the circumstances existing at the time the Reeves’ marriage was dissolved was Mr. Reeves’ plan to voluntarily retire within the year. The extent to which this would reduce his income was known to the trial judge. A diminution in income anticipated by the trial judge in making an award is, when it occurs, not a changed circumstance justifying a modification of the award. See Linton v. Linton, 17 Ariz.App. 560, 499 P.2d 174 (1972). The portion of the decree to which Mr. Reeves objects is simply a statement that the court had considered the reduced income on retirement in making the award. It had the additional virtue of warning Mr. Reeves of circumstances that would not justify modification before he took irremediable action on the misapprehension that modification might occur. Determination of the amount of an award for maintenance includes consideration of the financial needs and abilities of the spouse petitioning for maintenance and the financial resources and abilities of the spouse who is to provide maintenance. A.R.S. § 25-319(B); In re Marriage of Hinkston, 133 Ariz. 592, 594, 653 P.2d 49, 51 (App.1982). The statutory emphasis on the ability or potential for one spouse to earn income in the labor market, A.R.S. § 25-319(B)(8), is of particular relevance in the present case. A trial judge certainly has the discretion to fashion a dissolution decree to prevent one spouse from avoiding a maintenance award by voluntarily taking himself out of the “labor market” where his earning power is well documented. See Patterson v. Patterson, 102 Ariz. 410, 415, 432 P.2d 143, 148 (1967). The decree does not foreclose modification if Mr. Reeves’ “competitive” position in the labor market is diminished for a reason other than his own choice to retire. Nor would his reduced income during retirement, if combined with other circumstances, prevent a finding of substantially changed circumstances. The trial judge properly exercised his discretion to note the possibility of Mr. Reeves’ retirement. It was also proper to state that should Mr. Reeves retire it would be a circumstance that the court had considered and found to be an insubstantial basis for modification. This is so because voluntary retirement does not affect one’s ability to earn in the labor market. The fact that one may, by a voluntary act, reduce one’s income is not necessarily a ground for modification of a maintenance decree. Affirmed. HATHAWAY, P.J., and LACAGNINA, J., concur.

OPINION BIRDSALL, Judge. The appellant was convicted of child molesting and given a mitigated sentence. On appeal he makes four contentions: 1) He was denied a fair trial because television was permitted in the courtroom after the trial had commenced, 2) He was denied a fair trial because the prosecutor repeatedly referred to media portrayals of child molestation, 3) The prosecutor misstated the burden of proof in rebuttal closing argument, and 4) The evidence was insufficient. We affirm. The facts considered in the light most favorable to sustain the jury verdict follow. The appellant was seated in his automobile, which was parked on the street by his home. It was mid-afternoon. He was repairing the carpet in the car. The victim, a seven-year-old neighbor girl (she was eight at the time of trial) came by on her bicycle. The appellant called her over to his car where they had a conversation about the victim’s chicken pox marks. Using the marks as a pretext, the appellant raised the victim’s shirt and touched her on her upper body. He then raised her skirt, lowered her underpants and touched her vagina. He then turned her around and touched her bottom. He told her he had pock marks on his penis, pointing “where boys go to the bathroom,” and asked if she would come to his home and put some medicine on it. He said he needed a little girl to apply the medicine. And he told her not to tell her mom and dad when she came over to his house. The Television in the Courtroom On the second day of trial, a television crew had requested permission to film the proceedings, not for coverage of the case, but only for generic purposes. The court granted the request over the appellant’s objection. The court told the jury: “Folks, before we get started, I want to point out to you or that we have a television camera and crewman here who are going to be photographing some of the procedures here. I want to tell you that under the guidelines that’s been established by our Supreme Court for that, that they will not be taking any photographs of the jurors. They requested that they take photographs of these proceedings for use in a general fashion, and not for use in regard to this specific case. They have made that request of me, and I have granted it because they are using this courtroom, and this case, and you are not to assume or believe that this case has any particular or significant or extraordinary significance above that which it inherently has in and of itself. In other words, don’t place any more importance on this case simply because the camera crew has come in here and chosen to photograph the proceedings.” The Arizona Supreme Court in Rule 45,. Canon 3(A)(7)(b) and (g), Rules of the Supreme Court, Code of Judicial Conduct, 17A A.R.S., in effect at the time of trial, authorized a trial court in its discretion to allow the televising of trials or portions of the trial proceedings: “(b) Electronic and still photographic coverage of public judicial proceedings other than the proceedings specified in paragraph (a) above may be permitted by the judge of the particular proceeding in his sole discretion, giving due consideration to the following factors: ****** (g) Objections of a party to coverage must be made on the record prior to commencement of the proceeding or portion thereof for which coverage is requested. Objections of a non-party witness to coverage of his or her appearance or testimony may be made to the judge at any time. Any objection not so made will be deemed waived. This provision shall not diminish the judge’s authority to preclude or limit coverage of a proceeding in his sole discretion as above provided.” (emphasis added) Canon 3(A)(7)(b) set forth guidelines to aid the trial court in determining whether or not a trial should be televised. “(i) The impact of coverage upon the right of any party to a fair trial; (ii) The impact of coverage upon the right of privacy of any party or witness; (iii) The impact of coverage upon the safety and well-being of any party, witness or juror; (iv) The likelihood that coverage would distract participants or would detract from the dignity of the proceedings; (v) The adequacy of the physical facilities of the court for coverage; and (vi) Any other factor affecting the fair administration of justice.” The recent change by the Arizona Supreme Court of the rules pertaining to the televising of trials is consistent with the recent United States Supreme Court case of Chandler v. Florida, 449 U.S. 560, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981), which rejected the argument that the televising of a criminal trial automatically results in the denial of due process of law. Instead, the Court held that: “Absent a showing of prejudice of constitutional dimensions to these defendants, there is no reason for this Court either to endorse or to invalidate Florida’s experiment [televising criminal trials]”. 449 U.S. at 582, 101 S.Ct. at 813-14, 66 L.Ed.2d at 757. In order, then, for an appellant to obtain a reversal of a criminal conviction on account of a trial court allowing the televising of a criminal trial, the appellant must first show the trial court abused its discretion in allowing the televising and second, the televising prejudiced the appellant. Here the trial court did not abuse its discretion nor was appellant prejudiced by the trial court’s allowing portions of the trial to be televised. The appellant acknowledges that he can point to no specific prejudice as a result of the coverage. He claims he is entitled to relief due to the trial court not making a finding of necessity or weighing the interests of Canon 3(A)(7)(b), the court not complying with the requirements of 3(A)(7)(f), and the synergistic effect of the “unannounced filming” and the “prosecutor’s repeated references to grisly images of dead little girls,” (Issue two, which we consider ante). The trial court was not required to make any particular finding on the record: “Nothing in paragraph (b) or (c) above shall be construed as requiring the judge of the particular proceeding to state grounds or make findings in support of his determination to permit, limit or preclude electronic and still photographic coverage, and the exercise of the judge’s discretion in limiting or precluding such coverage shall not be subject to judicial review.” Canon 3(A)(7)(d). The trial court informed the parties the day before the filming that a television camera would photograph some of the trial proceedings. The trial court concluded that this satisfied the notice requirements. Appellant’s counsel was unable to tell the court how his client was prejudiced by the request to televise the proceeding after the trial had already started. We believe the rule contemplates, by its references to filming portions of the proceeding, that requests to televise may be made and granted after a trial has commenced. We believe it is clear that the trial court did not abuse its discretion in allowing the television. The coverage was minimal. The appellant was not photographed, nor was the jury, nor any witness who objected. In response to a request of appellant’s trial counsel, the camera once was moved to a location counsel requested. Prosecutorial Misconduct In his voir dire, opening statement, and closing argument, the prosecutor contrasted the evidence in the case at bench with more violent cases of molestation which he characterized as media portrayals. The appellant contends this type of argument, coupled with the television in the courtroom, combined to prejudice him to the point where he did not get a fair trial. Because no objection was made, any objection to the prosecutor’s statements is waived unless we find fundamental error. We are unable to find any error in the statements, much less fundamental error. Burden of Proof The appellant testified, denying that he had touched the victim as she described. Other witnesses who were in the neighborhood also testified that they saw no such touching, although they saw the two together at the automobile. The only evidence of the molestation was the victim’s testimony. The prosecutor told the jury, if they believed the victim, that was proof beyond a reasonable doubt. That was not a misstatement of the law, considering that evidence. The case turned on the credibility of the victim’s testimony. The argument was a correct analysis of the facts and law. Furthermore, there was no objection so any error, and we find none, was waived. Sufficiency of the Evidence After the opening, answering, and reply briefs were filed, the appellant retained new counsel and we permitted the filing of a supplemental brief and response by the state. The only new issue asserted was that the evidence was insufficient to support the verdict. We do not agree. The appellant’s principal contention is that there was no evidence showing that the alleged touching was motivated by an unnatural or abnormal sexual interest. See State v. Madsen, 137 Ariz. 16, 667 P.2d 1342 (App.1983). In order to accept this argument, we would have to hold that evidence of raising the skirt and lowering the underpants of a seven-year-old girl, touching her vagina, turning her and touching her bottom, and asking her to come to his house to put medicine on his penis, is insufficient to support a finding of unnatural or abnormal sexual interest. It is obvious that we should not make such a finding. In the supplemental brief, new counsel also argues that much of the victim’s testimony was in response to leading questions. He is correct that some leading questions were asked. There were, however, no objections to the leading questions. Prior to trial, the appellant’s trial counsel moved in limine to preclude leading questions of the victim. The court, very proper ly, reserved ruling on this motion, saying, in effect, that if a witness had difficulty because of age, the state was entitled to lead “within certain bounds.” It was incumbent on defense counsel, pursuant to this ruling, to object. We cannot, at this stage, anticipate what would have happened had there been objection. Surely we are in no position to reverse on speculation. Furthermore, we have reviewed the transcript of the victim’s testimony and find that the use of leading questions was not abused and did not deprive the appellant of a fair trial. Affirmed. HOWARD and FERNANDEZ, JJ., concur.

OPINION FERNANDEZ, Judge. This case presents the question of whether it is proper to grant summary judgment to a psychiatrist sued in a medical malpractice action because of the suicide of a hospitalized mental patient when no expert testimony has been presented that the psychiatrist’s actions fell below the standard of care required. We hold that it is proper and affirm the lower court’s ruling. Appellant’s decedent, Frank Rudy, was admitted to the voluntary psychiatric unit at St. Mary’s Hospital in the early evening of November 6, 1980. On November 8 he left the hospital around 5:30 p.m. The next morning his body was found hanging from a bridge in Tucson. The cause of death was determined to be suicide. Rudy, a resident of Benson, had been an alcoholic for three to four years prior to his death, particularly the last year of his life. Sometime in September he had stopped drinking and in October had become very depressed. He had been receiving therapy from a counselor once or twice a week since late September at Cochise Behavioral Health Services in Benson. On September 27 he had received some “brain” tests at Tucson Medical Center. Shortly before he was taken to St. Mary’s, he told his wife he had been looking at some knives, that he should have used one on himself but could not. He also told her he had sold his soul to the devil. His wife made an appointment for him to see the psychiatrist at Cochise Behavioral Health Services who recommended that he be hospitalized after his wife insisted he needed more help. When he was admitted to St. Mary’s he told the nurse he did not know why he was there. Her notes indicated that he had been neither eating nor sleeping and that he had become preoccupied with death. She also noted he heard voices that told him he was going to die. During the admission interview, Rudy attempted to burn his hand with a cigarette. He told the nurse it was to show he had no feelings and therefore must be dead. Rudy told her he did not want to come to the hospital, and his wife signed the admitting papers after he refused to sign them. The appellee, Dr. Meshorer, a psychiatrist with staff privileges at St. Mary’s, first saw Rudy on Friday morning, November 7. The admitting nurse had telephoned him on November 6 and conveyed information to him about Rudy; he had thus become the admitting physician. He stated in his deposition that nothing the nurse had told him that evening had indicated to him Rudy was suicidal. After Dr. Meshorer examined Rudy on November 7, he wrote in his report that Rudy was not oriented as to place and only partially as to time, although he was oriented to person. He also noted that Rudy would not volunteer information and mostly answered “yes”, “no” or “I don’t know” to questions. The “diagnostic impression” shown on the chart reads as follows: “1. Question of Organic brain syndrome. 2. Question of psychotic depression.” The doctor then officially admitted Rudy to the ward and ordered a chest x-ray, electrocardiogram and a number of laboratory tests in order to rule out possible causes of his illness. He prescribed an antidepressant and ordered that the results of the brain scan at TMC be obtained. Not all the tests had been performed before Rudy eloped from the hospital. The doctor testified he did not believe Rudy to be a danger to himself or others at the time of his examination. Dr. Meshorer saw Rudy again on the morning of November 8. At that time he ordered a few more tests and told the staff to watch out for Rudy’s incessant smoking because the doctor was concerned he was a fire hazard. Dr. Meshorer did not see him again. The nurses’ progress notes during the time Rudy was a patient indicate he was non-communicative, that he chain-smoked, appeared to be hallucinating, was confused and uncomfortable at the unit. He told one nurse he was not supposed to be there, that something had scared him about his family and that is why he had said he was dead. He was seen mumbling to himself and frequently stood in one place for long periods of time. On November 7 there was an entry listing problems and treatment approaches. One of the problems shown was “harm to self,” and the treatment approach indicated he was to be observed at all times when he was smoking. He was noted to be very disheveled. On November 8 he told a nurse he was ready to go home. Mrs. Rudy had telephoned the hospital during the morning of November 8. When she spoke to Rudy he told her he had to get out of there, that he was all dressed and ready to go home. She had a friend call the hospital to tell the nurse what Rudy had said. The information was noted in his file. Dr. Meshorer testified he was not told of the call. Rudy left the hospital that afternoon. Dr. Meshorer testified that several options are available to the staff when it is determined by a doctor that a patient is suicidal. Those options include a one-to-one surveillance of the patient, the prescribing of medication or the seclusion of a patient in one of two seclusion rooms that were available. In addition the staff would take away all sharp objects and, if necessary, transfer him to a closed facility such as Kino Community Hospital. Depositions were taken of most of the nurses who had dealt with Rudy during his stay. All indicated they did not believe he was suicidal, and one stated she did not think he had sufficient energy to commit suicide. Dr. Meshorer testified “there’s no litmus test that shows suicide,” that it is a subjective judgment whether or not someone might commit suicide. After Rudy left the hospital, the doctor ordered him to be secluded when he returned. In the police report filled out when Rudy left the hospital was the notation “subject described as suicidal and depressed.” Appellants’ only expert testimony in opposition to the summary judgment motion filed by appellee was the deposition of Patricia Anderson, a registered nurse who is the director of psychiatric services for the department of nursing at Kino Community Hospital. Anderson also has a master’s degree in psychiatric nursing and is taking classes toward a doctorate. She testified that a review of Rudy’s records from St. Mary’s Hospital and the depositions of the doctor and five of the nurses who cared for Rudy indicated to her that he was suicidal during his stay at the hospital. Appellants contend it was improper to grant summary judgment because they presented considerable expert testimony from appellee himself, from the nurses who cared for Rudy and from their psychiatric nurse from which a jury could conclude that appellee was negligent in failing to recognize that Rudy was suicidal and in failing to order appropriate action to prevent Rudy from killing himself. We must view the evidence and resulting inferences in a light most favorable to appellants in reviewing the granting of summary judgment. Boyle v. City of Phoenix, 115 Ariz. 106, 563 P.2d 905 (1977); Brown v. Sears, Roebuck & Co., 136 Ariz. 556, 667 P.2d 750 (App.1983). The testimony of appellee and of the nurses who cared for Rudy was that he did not appear to be suicidal. Although they testified with regard to remarks made by Rudy as to his preoccupation with death, his hearing of voices saying he was going to die and his apparent discomfort at being in the hospital, not one said that he or she believed he would kill himself. Their evidence does not support appellant’s contentions. The only evidence that Rudy should have been diagnosed as suicidal came from appellant’s expert, Anderson. The rules in this state with regard to medical malpractice have existed for a long time. In Boyce v. Brown, 51 Ariz. 416, 77 P.2d 455 (1938), the supreme court held that negligence by a doctor must always be affirmatively proved and that in order to show the existence of a jury question there must be evidence of the medical practice standard in the community. Finally, any negligence by a doctor must be established by expert medical testimony unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it. Accord, Pendleton v. Cilley, 118 Ariz. 84, 574 P.2d 1303 (1978). The testimony of a registered nurse cannot be used to establish the standard of care a doctor must meet. Rodriguez v. Jackson, 118 Ariz. 13, 574 P.2d 481 (App.1977). In that case this court held that a distinction can be made between testimony on causation and testimony on the standard of care required. Thus, we held that a pharmacologist could testify as to the effects of the drug administered because it related to causation, but neither she nor a physiologist nor a registered nurse was qualified to testify on the doctor’s standard of care. Appellant has cited the case of Meier v. Ross General Hospital, 69 Cal.2d 420, 71 Cal.Rptr. 903, 445 P.2d 519 (1968). The court there reversed a verdict for defendants for the suicide of a mental patient who had been placed in a second floor room with a window which could be opened fully. Although plaintiffs had not introduced expert testimony, the court held laymen could determine if the actions were negligence since the cause of death related to the window. The threshold question here, however, is whether the doctor was negligent in his determination that Rudy was not suicidal; hence, Anderson’s testimony does not meet the requirements of the rule. Alternatively, appellants contend that the negligence is so grossly apparent that a layman could easily recognize it; hence, there is no need for expert testimony on the issue. We disagree. This is not the type of case in which that exception has been applied. Those cases are ones such as Tiller v. Von Pohle, 72 Ariz. 11, 230 P.2d 213 (1951) in which a large cloth sack was left in a woman’s abdomen after an operation and Revels v. Pohle, 101 Ariz. 208, 418 P.2d 364 (1966) in which pieces of steel sutures were left in a patient after an operation. Nor is this similar to the cases cited by appellant. In Nixdorf v. Hicken, 612 P.2d 348 (Utah 1980), the alleged negligence was the loss of a portion of a needle in the surgical site. In Mellies v. National Heritage, Inc., 6 Kan.App.2d 910, 636 P.2d 215 (1981), it was improper nursing care that resulted in bedsores. Since nursing care was at issue, expert testimony from nurses was permitted. We recognize that the diagnosis of suicide potential is a very difficult one to make. As Dr. Meshorer testified, it involves a subjective judgment. There is no clinical test for suicide. No jury could properly determine whether or not the facts available to Dr. Meshorer about Rudy-justified his determination that he was not a suicidal risk without the assistance of expert testimony from a physician. Appel lants’ cases are inapplicable. In Meier v. Ross General Hospital, supra, the patient had previously attempted suicide. That was also the case in DeMontiney v. Desert Manor Convalescent Ctr., 144 Ariz. 6, 695 P.2d 255 (1985). In Lucy Webb Hayes National Train. Sch. for D. & M. v. Perotti, 419 F.2d 704 (D.C.Cir.1969), although there was no previous attempt, the patient had been diagnosed as suicidal. The party opposing a summary judgment motion must show that he has evidence available to justify a trial. Pendleton v. Cilley, supra. Since appellants, presented no expert testimony on the standard of care required of the doctor, the trial court properly granted summary judgment to appellee. Affirmed. BIRDSALL, P.J. and HOWARD, J., concur.

OPINION FERNANDEZ, Judge. Appellant Buckmaster filed suit for specific performance of a contract to purchase a mobile home park after a dispute arose as to an easement for ingress and egress, and escrow failed to close. Appellees Davis and Dent counterclaimed, seeking damages for breach of the purchase contract and, in the alternative, for rescission. The trial court, in ruling on cross summary judgment motions, determined the contract was rescinded and awarded attorney’s fees to Davis and Dent. Buckmaster has appealed, contending rescission was not a proper remedy and protesting the attorney fee award. We affirm the rescission and reverse the attorney fee award. Davis and Dent were the owners of a 281-space mobile home park located off Mission Road in Tucson. In the spring of 1983 Buckmaster offered to purchase the park. Davis and Dent rejected the offer and made a counter-offer which was also rejected. Nothing further occurred between the parties until that fall. Negotiations then resumed and several offers were made by both sides until a contract was entered into October 31, 1983. The contract was for the sale of the mobile home park, approximately ten acres of undeveloped land to the east of the park and a private street between the park and Mission Road known as Via Ingresso (referred to as the “entrance street” in the agreement). The street is the only access to the park. Escrow was opened and was to close in early January 1984. Pursuant to their interpretation of the contract, Davis and Dent submitted proposed warranty deeds to the escrow officer which contained an easement for ingress and egress over Via Ingresso for the benefit of property to the west of the park (referred to as the “front property”) which is also owned by Davis and Dent. The pertinent paragraph of the purchase contract reads as follows: “4. Exceptions to Title. Sellers shall deliver a warranty deed conveying title to the Real Property free of all liens and encumbrances other than an easement for CATV service, an easement for ingress and egress over the Entrance Street, and other exceptions that appear of record and do not impair the value of the Real Property, and shall deliver a bill of sale conveying title to the Personal Property free and clear of all liens and encumbrances.” Similar language appears in four previous offers submitted during the course of negotiations. Dent, an attorney licensed to practice in California, drafted the language, and Buckmaster utilized it in submitting the two offers he made during the negotiation period. Dent continued to employ the singular of “easement” in his offers after the O'Leary easement was recorded. The O’Leary easement is an easement for ingress and egress over Via Ingresso which was granted by Davis and Dent to the owners of property to the south of the park on August 1, 1983. It was recorded August 31 after the initial negotiations for sale of the property but before the purchase contract was entered into. Apparently Buckmaster was unaware of the existence of the O’Leary easement until after he entered into the purchase contract. Buckmaster insists the contract provided for only one easement for ingress and egress which must be the O’Leary easement. Davis and Dent contend they always intended to reserve an easement for access for the benefit of the front property as evidenced by the fact that the language in question first appeared in the May 1983 offer long before the O’Leary easement was granted. They insist the O’Leary easement is provided for in the clause “and other exceptions that appear of record and do not impair the value of the Real Property,” and thus two easements were reserved. The trial court found the contract was rescinded because there had been no meeting of the minds on the provision for easement for ingress and egress. Buckmaster refused to accept the deeds with both easements because the city would not permit him to expand the mobile home park to include the undeveloped land since there was already a maximum amount of traffic using Via Ingresso. Propriety of Remedy of Rescission Appellant contends the trial court should not have ordered the contract rescinded since both parties had urged the court to interpret paragraph 4, thereby finding either that only the O’Leary easement had been contemplated by the parties or that both retained easements had been contemplated. The interpretation of a contract is a question of law for a trial court. Dutch Inns of America, Inc. v. Horizon Corporation, 18 ArizApp. 116, 500 P.2d 901 (1972). In making that interpretation, the court must determine whether the language can be construed in more than one sense, University Realty & Development Co. v. Omid-Gaf, Inc., 19 ArizApp. 488, 508 P.2d 747 (1973), or if some extrinsic fact exists which creates a latent ambiguity in otherwise clear and intelligible language, Hamada v. Valley National Bank, 27 Ariz.App. 433, 555 P.2d 1121 (1976). Buck-master contends the language of the contract is clear, unambiguous and subject to one interpretation only. The fact that the O’Leary easement was recorded between the negotiation periods cannot be ignored, however, nor can the fact that a period of three months elapsed between those negotiation periods. Those facts resulted in a latent ambiguity as to the meaning intended by the parties for the phrase “an easement for ingress and egress over the Entrance Street.” There is a significant difference between one easement for ingress and egress and two. The parties clearly considered the easement to be a material term of the contract since escrow failed to close solely because of the dispute over that term. The difference in the parties’ intentions does not constitute a mutual mistake of fact but rather a misunderstanding as to the operative effect of the phrase in question. Davis and Dent had no reason to know Buckmaster had not received an updated title report prior to the time negotiations resumed and thus was unaware of the O’Leary easement. Since neither party knew nor had reason to know the meaning intended by the other, there was no “meeting of the minds” as to an essential term of the contract. Restatement (Second) of Contracts § 20 (1979). The situation that existed here is similar to that in Heywood v. Ziol, 91 Ariz. 309, 372 P.2d 200 (1962), in which the court noted the facts showed two unilateral mistakes existed since each party was laboring under a different interpretation of the legal effect of the contract provision in dispute. The Supreme Court in that case stated that “[i]t is elementary that before there can be a binding contract there must be mutual consent of the parties to the terms thereof.” 91 Ariz. at 314, 372 P.2d at 203. Without the required meeting of the minds the court affirmed the finding that the contract was void. See also Mortensen v. Berzell Investment Co., 102 Ariz. 348, 429 P.2d 945 (1967). The same applies here. Having determined that the trial court properly found that the contract was rescinded, we need not address the additional issues raised by Buckmaster. Attorney’s Fee Award Buckmaster contends it was improper for the court to award attorney’s fees to Davis and Dent because there is no successful party within the meaning of A.R.S. § 12-341.01 when a contract has been held to be void. Although attorney’s fees have been awarded to parties who have successfully proved the non-existence of a contractual relationship, we do not believe an award is appropriate under the facts of this case. In Lacer v. Navajo County, 141 Ariz. 392, 687 P.2d 400 (App.1984), Navajo County had proved no deed restrictions existed on the use of property Lacer’s father had conveyed which Lacer had sued to recover. In Trebilcox v. Brown & Bain, P.A., 133 Ariz. 588, 653 P.2d 45 (App.1982), the defendants proved an attorney-client relationship did not exist in a suit for breach of fiduciary duty. In Shirley v. Hartford Accident & Indemnity Co., 125 Ariz. 70, 607 P.2d 389 (App.1979), the surety proved the supplier of labor to a materialman could not collect for unpaid wages from the general contractor’s license bond. None of the cases cited by Davis and Dent involved a rescission because of either mutual mistake or two unilateral mistakes. Since Davis drafted the language that resulted in the rescission, we see no basis for awarding them attorney’s fees. The judgment of rescission is affirmed, and the award of attorney’s fees is reversed. Both parties are denied attorney’s fees on appeal. BIRDSALL, P.J., and HOWARD, J., concur. . Shortly after the purchase contract was entered into, LLC Investments, Inc. and Mt. Vista Investments, Inc. became successors in interest to Davis and Dent.

OPINION FROEB, Judge. The issue in this special action review of an Industrial Commission award is whether the claimant is entitled to payment for medical procedures that could allow him to father children. Because the administrative law judge’s determination was based, in part, upon erroneous conclusions of law, we set aside the award denying benefits. On October 2, 1980, claimant Stephen Regnier, a test car driver for Ford Motor Company (respondent), was injured while at work. As a result of the industrial incident, claimant is a quadriplegic and is unable to have an erection and/or to ejaculate so as to become a father in the normal way. Since birth, claimant has had one undescended testicle. Claimant’s claim for benefits was accepted by respondent employer and he began to receive total temporary disability benefits. Approximately two years after the injury, claimant requested respondent to pay for medical procedures that could allow him to become a father. These procedures involve implanting an artificial spermatocele or sperm reservoir in claimant’s only testicle, aspirating by hypodermic syringe the sperm collected, and artificially inseminating claimant’s wife with the sperm. On February 11, 1983, a notice of claim status was issued denying payment for expenses incurred as a result of these procedures. Claimant protested and requested a hearing. At hearing, claimant, claimant’s wife and four physicians testified. Claimant testified that he and his wife began seriously to consider having children just prior to his industrial accident. He further stated that he understood and was willing to undergo the implantation procedure. Claimant’s wife testified that she desired children and would be willing to undergo the artificial insemination procedure. Reuven Geller, M.D., a board-certified urologist and member of the Pacific Coast Fertility and Sterility Society, testified that he had examined claimant eight times and had performed surgery on claimant’s bladder in 1983. He stated that he had discussed with claimant the procedure to implant an artificial spermatocele in claimant’s right testicle. Although Dr. Geller testified that he had never performed the procedure, he stated that he was familiar with it because he had observed it performed in a film and had discussed the procedure with physicians who had successfully performed it. Dr. Geller stated that, after implanting the artificial spermatocele, claimant would have a ten to fifteen percent chance of fathering a child. He stated that absent the procedure claimant would be unable to father a child. On cross-examination, Dr. Geller indicated that he assumed claimant was producing viable sperm but stated that absent surgery no physician could state to a certainty whether claimant’s testicle was actually producing sperm. Robert Howard Tamis, M.D., a board-certified obstetrician and gynecologist, and the founder and director of the Arizona Fertility Institute, testified that he examined claimant’s wife to determine whether she could become pregnant. After examining claimant’s wife, X-raying her fallopian tubes and taking her basal temperature, he concluded that her fallopian tubes were unobstructed and that she was ovulating. Dr. Tamis, however, admitted that he had no certain evidence that claimant’s wife could become pregnant and that additional tests should be performed to answer the question. Dr. Tamis also stated that there was no reason to believe that the medical procedures would not be successful, assuming that claimant’s wife could become pregnant and that claimant was producing sperm. William F. Osborn, M.D., a board-certified urologist who had performed surgery on claimant in 1981, testified on respondent’s behalf. Dr. Osborn characterized the procedure to implant a spermatocele as experimental and explained that he had never heard of the procedure until respondent’s counsel provided him with an article on the subject. Dr. Osborn testified that he did not believe claimant could produce sufficient sperm with which to artifically inseminate claimant’s wife even if the artificial spermatocele were implanted. Although Dr. Osborn never examined claimant to determine whether claimant could produce sperm, he explained that claimant had an undescended testicle and, statistically, individuals with one undescended testicle may have impaired sperm production in the descended testicle. Arthur Fishman, M.D., a board-certified urologist, also testified for respondent. Dr. Fishman stated that he never examined claimant but had reviewed claimant’s medical file and read articles on the spermatocele procedure. He did not think it was appropriate to offer claimant hope of fathering children through the proposed procedures because the chance of success was slim. The administrative law judge entered an award finding claimant not entitled to payment for the medical procedures. The award was affirmed on review and this special action followed. On appeal, claimant argues that there are three reasons to set aside the award. First, the administrative law judge erred in concluding that a compensable medical benefit must result in an increased ability to function in the work place. Second, the administrative law judge erred in concluding that the procedures would not improve claimant’s condition. Third, claimant contends the procedure was reasonably required because it was the only procedure whereby claimant could overcome his functional loss and father children. Respondent contends that when read in its entirety the award must be affirmed. Specifically, respondent argues that the proposed procedures are not reasonably required medical benefits, but rather are experimental procedures that could expose respondent to future liability. Medical benefits are awarded pursuant to A.R.S. § 23-1062(A) which provides that: Promptly, upon notice to the employer, every injured employee shall receive medical, surgical and hospital benefits or other treatment, nursing, medicine, surgical supplies, crutches and other apparatus, including artificial members, reasonably required at the time of the injury, and during the period of disability. Such benefits shall be termed “medical, surgical and hosptial benefits.” The administrative law judge’s rejection of the proposed procedure appears, in part, to have been based upon two. erroneous conclusions of law. Relying upon Heidler v. Industrial Commission, 14 Ariz.App. 280, 482 P.2d 889 (1971), Imrich v. Industrial Commission, 13 Ariz.App. 155, 474 P.2d 874 (1970), and 2A Larson, The Law of Workmen’s Compensation § 65.51, the administrative law judge concluded that “medical benefits that will not conceivably result in an increased ability to function in the work place” are not authorized under the statute. This conclusion has been expressly rejected in Arizona. An injured employee is entitled to medical treatment even if the injury does not disable him for work or adversely affect his earning capacity. Sneed v. Belt, 130 Ariz. 229, 635 P.2d 517 (App.1981). See also, State Compensation Fund v. Industrial Commission, 25 Ariz.App. 316, 543 P.2d 154 (1975) (medical treatment for non-disabling psycho-neurosis is compensable) and Engle v. Industrial Commission, 77 Ariz. 202, 269 P.2d 604 (1954) (medical benefits are not affected by no loss of earning capacity). Additionally, the administrative law judge’s reliance on Heidler and Imrich was misplaced. These cases stand for the proposition that a worker is not entitled to income benefits if a physical impairment causes no loss of earning capacity. See 2 Larson, § 61.11(B) (effect of income benefit rights on medical benefit rights) and § 65.51 (discussion of situations where income compensation benefits are not payable for non-disabling injuries). Medical, benefits are payable when they will improve an injured employee’s condition. See Home Insurance Company v. Industrial Commission, 23 Ariz. App. 90, 530 P.2d 1123 (1975). The administrative law judge erroneously concluded that the medical benefits sought would not improve claimant’s condition. The administrative law judge erred, however, in this finding. The proposed procedures, if successful, would replace a bodily function lost as a result of the injury. The fact that the procedures will not render claimant ambulatory or no longer a quadriplegic is irrelevant. Just as claimant’s previous bladder surgery improved or restored a functional loss caused by the industrial injury, the procedures at issue here may restore claimant’s ability to father children. We hold this to come within the definition of medical benefits set forth in A.R.S. § 23-1062(A). While we have dealt with two erroneous conclusions reached by the administrative law judge, we have not discussed whether, on the evidence presented, an administrative law judge could find the procedures “reasonably required” within the meaning of A.R.S. § 23-1062(A). Whether a procedure is reasonably required under the statute is a question of fact. Lowman v. Industrial Commission, 54 Ariz. 413, 96 P.2d 405 (1939) (whether an injured employee’s medical care as result of accident is or is not necessary, is a question of fact to be decided by the Commission). In the present case, the administrative law judge observed that the proposed procedures were novel and experimental and could expose respondent to future liability. He also indicated that the procedure may have a low probability of success and was not necessary to save claimant’s life. Such factors may be relevant in determining whether a proposed procedure is reasonably required under the statute. However, from the award, we cannot determine whether the administrative law judge would have considered these factors sufficient in themselves to deny benefits or whether he would have nevertheless allowed benefits despite the presence of these factors. As a result it is necessary that the matter be reconsidered by the administrative law judge. There is no question the benefits sought here push the limits of Arizona worker’s compensation law as it presently stands. Yet, the body function for which a substitute is sought here, is no less cognizable than other prosthetic measures which replace lost body function. In our search for comparable precedent in other jurisdictions, we find the following cases allowing benefits in a variety of situations: Crain Burton Ford Company v. Rogers, 12 Ark. App. 246, 674 S.W.2d 944 (1984) (penile implant); Bealer v. Simmons, 216 Pa.Super. 263, 264 A.2d 193 (Pa.Super.1970) (replacement of artificial eye); Peace River Electric Corporation v. Choate, 417 So.2d 831 (Fla.App. 1 Dist.1982) (rent free use of wheelchair-accessible modular home); Akers Auto Salvage v. Waddle, 394 P.2d 452 (Okla.1964) (plastic surgery); Ranson v. Orleans Parish School Board, 365 So.2d 937 (La.App.1979) (wig); Clark v. Fedders-Quigan Corp., 284 App.Div. 430, 131 N.Y. S.2d 575 (1954) (travel expenses to and from Florida for sufferer of emphysema); and Squeo v. Comfort Control Corp., 99 N.J. 588, 494 A.2d 313 (1985) (construction of self-contained apartment for quadriplegic). While such awards differ greatly, we believe that as medical treatment progresses, allowance of a wider range may be appropriate even where the beneficial effects may not always be assured. See 2 Larson, §§ 61.13(A) and (F), 61.14. This is particularly true in light of the rule that workers compensation statutes are to be given liberal interpretation in favor of the worker. Bill Breck Dodge, Inc. v. Industrial Commission of Arizona, 138 Ariz. 388, 675 P.2d 275 (1983). Respondent employer argues that the requested procedures are experimental and that an employer is not required to provide experimental modalities under Arizona Worker’s Compensation Law. Although new medical techniques frequently are described as experimental, that alone does not mean they cannot be found compensable as a medical benefit under A.R.S. § 23-1062(A). The experimental nature of a new medical technique is one among many factors the administrative law judge must take into account in determining if it is reasonably required under the statute. We hold therefore, that the evidence presented would support an award of medical benefits covering the cost of implanting an artificial spermatocele in claimant and whatever further procedures are appropriate to the artificial insemination of claimant’s wife. Nevertheless, under the rules pertaining to review and remand of worker’s compensation reviews, it is necessary for this court to set aside the award which will require the parties to present, anew, their evidence before the administrative law judge who must determine whether, considering the evidence, the procedures sought are “reasonably required” under all the circumstances. The same evidence may be presented or there may be new evidence. We merely hold that the administrative law judge could, but would not be compelled, to find the evidence in the present record sufficient to justify the benefits sought. The award is set aside. CORCORAN and OGG, JJ., concur. . Dr. Geller discussed the procedure with Dr. Shrirren of Hamburg, Germany, who explained that approximately 30 procedures, resulting in four pregnancies; had been performed in Europe. He also consulted three physicians practicing in the United States who had performed approximately 17 procedures, two of which were on paraplegics. . Although these factors are perhaps relevant in determining whether a proposed medical procedure is reasonably required, we reject respondent’s argument that these factors require a finding that the procedure was not reasonably required. In any event, respondent’s contention that the authorization of the procedure could subject it to future liability, is highly speculative.

OPINION GERBER, Judge. Appellant, Jonnene La Vae Winter, and her co-defendant, Dean Edward Nicholson, were charged with two counts of theft, class 3 felonies, in violation of A.R.S. § 13-1802. Appellant’s trial was severed from that of her co-defendant and she was found guilty of both counts. The jury returned a special verdict that the theft ah leged in Count II occurred before the theft alleged in Count I. Appellant was sentenced to concurrent mitigated terms of six years and four years imprisonment on Count I and Count II, respectively. The issues on appeal are: (1) Whether appellant was denied due process because she was convicted of a crime not charged; (2) Whether the trial court erred in denying appellant’s motion to suppress; (3) Whether the trial court erred in failing to instruct the jury on the crime of “joyriding;” and (4) Whether the court erred in submitting to the jury a special verdict. L FACTS On December 19, 1982, at approximately midnight, Phoenix Police Officer Regina Hernandez stopped appellant who was driving a 1982 Datsun 280ZX with Missouri dealer plates. Appellant was stopped because she was traveling up against the yellow lane divider between the high speed lane and the median wall of the freeway, was weaving within her lane and had no expiration date sticker on her Missouri license plate. After Officer Hernandez stopped appellant she asked for the vehicle registration and appellant stated.that she did not have one because the car belonged to her boyfriend, a Missouri car dealer. When asked her boyfriend’s name, appellant hesitated but stated that his name was Harry Frances. Officer Hernandez asked appellant to remove the papers which were covering the vehicle identification number (VIN) on the dashboard. Although appellant removed the papers, she placed them back over the VIN while Officer Hernandez was recording it. Officer Hernandez again requested appellant to remove the papers which covered the VIN, recorded the number and, after radioing the number into the station, learned that the vehicle was stolen. Thereafter, Officer Hernandez placed appellant under arrest and took possession of her keys. The following day, Officer William Woods, who had been investigating appellant and Dean Edwards Nicholson in connection with another matter, learned that appellant had been arrested the preceding evening for possession of a stolen vehicle. Officer Woods set up surveillance of appellant’s apartment and observed a red Mazda RX7 parked in appellant’s parking space. Officer Woods previously had run a check on the Mazda’s license plate number and found that it belonged to another vehicle. At approximately 2:00 p.m., he observed appellant approach the Mazda with a key and driver’s license in her hand and open the car door. When asked who owned the vehicle, appellant stated that it belonged to Harry Frances. After Officer Woods removed papers covering the VIN, he radioed the number in to the police department and was advised that the Mazda was a stolen vehicle. Appellant was again arrested. II. SUFFICIENCY OF THE INDICTMENT The indictment alleged two counts of theft in violation of A.R.S. § 13-1802. Specifically, it charged appellant with two counts of theft committed knowingly controlling property with the intent to deprive the owners of the property. The state did not specify in the indictment a violation of any particular subsection. The trial court instructed the jurors that they could return a verdict of guilty if appellant violated subsection (A)(1) (control of property of another with intent to deprive) or subsection (A)(5) (control of property knowing or having reason to know it is stolen). Specifically, the court in the instructions stated: The crime of Theft requires proof of the following two things: The Defendant without lawful authority knowingly controls another person’s property, and the Defendant intended to deprive the other person of the property, or the Defendant knew, or had reason to know, that the property was stolen. Appellant now argues that the effect of the “alternative instruction ... was to amend the indictment so as to allow Appellant to be convicted of theft on the basis of a lower level of scienter than was originally charged, a lower level of which Appellant had no notice until after all testimony at trial.” The troublesome issue here is the degree of specificity required for a criminal indictment: Is a general citation of A.R.S. § 13-1802 sufficient for a theft charge, or must the indictment cite specific subsections as well, and if so, is a conviction limited to the specific subsection cited? Our jurisprudence has travelled a long way from the practice of the Emperor Caligula, who conveniently wrote the Roman laws on pillars too high to be read by his subjects. Nor do we adopt the other extreme of “extreme technical precision” in our indictments. State ex rel. Purcell v. Superior Court, 111 Ariz. 418, 419, 531 P.2d 541, 542 (1975). Under the present state of our law, a criminal charge is sufficient if it clearly sets forth the offense in a manner which enables a person of common understanding to know what is intended. There are two distinct reasons for finding the indictment sufficient and thus for affirming the conviction, the first being the unitary nature of the theft offense, and the second the provisions of Rule 13.5, Arizona Rules of Criminal Procedure. In the first place, theft in A.R.S. § 13-1802 is presently a single offense even though it has multiple subsections. It was not always so. In our prior criminal code, there existed a proliferation of theft offenses covering almost any kind of taking of almost anything. The present A.R.S. § 13-1802 consolidates the multiple prior theft offenses of embezzlement, conversion, larceny, finding and keeping stolen property, theft by false pretenses, and other similar “verbal distinctions” to produce a single unified offense. The Criminal Code Commission Commentary expressly acknowledges this consolidation: The essence of theft pursuant to § 1801 [A.R.S. § 13-1802] is the obtaining of unlawful control over property of another with the intent to deprive him or her thereof. For all practical purposes, the verbal distinctions among embezzlement, receiving stolen property, finding and keeping lost property, defrauding an innkeeper and similar theft offenses are abolished and replaced by a singular concept of depriving another of his or her property or services. Arizona Criminal Code Commission, Arizona Revised Criminal Code at 179 (1975). Lest this be considered an Arizona anomaly, this unitary interpretation of the theft statute stems from no less a source than the Model Penal Code. The commentary to § 223.1 of the Model Penal Code (Official Draft of 1962) at 137-138 provides: If overly specific charging is required, technical defenses based on inevitable minor variances can be made to a charge of any type of offense. It should be noted here, however, that the success of the effort to consolidate the various forms of theft into a single offense is limited by the extent to which highly detailed charging is perceived to be mandated by constitutional limitations or the fair notice requirement. It is the premise of Subsection (1) that post-charge relief should in most cases suffice to fill in the details of an accusation of theft that the defendant must know in order to meet the case against him. Such relief can come in the form of a bill of particulars or other specification of information following the formal charge or in the form of a continuance of the trial to allow additional time for preparation. If recharging is consistently required, the advantages of consolidation will be significantly impaired. Under this seminal language, a general citation of the theft statute in the indictment suffices to charge a violation of its subparts. To allow an uncomplaining defendant to await a verdict and then raise this technicality after an adverse verdict resurrects the fragmented theft scheme explicitly abolished by the new code provisions cited above. As the Model Penal Code points out, a defendant claiming inadequate notice of the charge finds appropriate remedies via pretrial motions for discovery or amendment. Id. at 138. Other states have resolved this problem with greater ease. In a nearly identical fact pattern in Commonwealth v. Day, 599 S.W.2d 166 (Ky.1980) involving a theft statute similar to A.R.S. § 13-1802, the Kentucky Supreme Court held a general citation of the theft statute sufficient to cover a conviction for exercising control over property known by the defendant to have been stolen, notwithstanding the fact that there was another Kentucky statute specifically penalizing receiving stolen property. See K.R.S. § 514.030(l)(a). In addition to this “single offense” argument, there is independent support for affirming the conviction in the provisions of rule 13.5. By virtue of that rule, an indictment is automatically amended to conform to the trial evidence, provided the amendment makes no change in the nature of the underlying crime. State v. Suarez, 137 Ariz. 368, 670 P.2d 1192 (App. 1983). Under the analysis above and the decisions of this court, such as State v. Dixon, 127 Ariz. 554, 622 P.2d 501 (App.1980), our theft statute constitutes one, rather than multiple, offenses. If that is so, under rule 13.5 the evidence presented at trial automatically resulted in an amendment of the indictment to permit the conviction under subsection (A)(5). Case law in this state, including decisions of this court, recognizes just such an automatic amendment under rule 13.5 even in cases more compelling than this. In State v. Puryear, 121 Ariz. 359, 362, 590 P.2d 475, 478 (App.1979), where the charging document was lacking in specificity, the court wrote: [W]e are impressed with the fact that appellant made no complaint about the lack of specificity in the indictment until after the State’s opening statement____ Under Rule 13.5(c), Arizona Rules of Criminal Procedure, a defect in the charging document cannot be raised except by a motion filed in accordance with Rule 16. Rule 16.1(b) requires that such motion be made no later than 20 days prior to trial____ Since appellant waited until trial to make his motion on the sufficiency of the indictment, the trial court did not err in precluding it. The same rationale appears in other cases where the statutory sufficiency of the charging document was attacked and upheld, notably in State v. Rupp, 120 Ariz. 490, 586 P.2d 1302 (App.1978); State v. Castoe, 114 Ariz. 47, 559 P.2d 167 (App.1976); and State v. Bailey, 125 Ariz. 263, 609 P.2d 78 (App.1980). Prior cases dealing with variances greater than that presented by the instant case have not required reversal. Thus, in State v. Fisher, 21 Ariz.App. 604, 605, 522 P.2d 560, 561 (1974), this court specifically stated that an information “is not fatal ... [where] it did not particularize by which of the three methods” the crime occurred. In State ex rel. Purcell, supra, where a defendant was charged under “Section 23, Chapter 55,” without any indication whether this was a municipal or state code violation, our supreme court indicated that the absence of a reference to the applicable criminal code and its specific subsections did not destroy the efficacy of the indictment. That court went on to observe that under rule 13.5 any deficiency in the complaint “is remedied by the evidence, and the complaint is deemed amended to conform to the evidence adduced at the trial.” 111 Ariz. at 420, 531 P.2d at 543. Perhaps the most specific reference to the problem presently before this court appears in State v. Kidd, 116 Ariz. 479, 481, 569 P.2d 1377, 1379 (App.1977), where in upholding the sufficiency of an indictment the court observed: We would hold that when the Legislature spells out a specific crime in a subsection of a statute which is the only subsection that will apply to the facts of a case the conviction will be upheld even though the defendant was charged under the general section number without particularizing the subsection, especially in this case where no previous objection was made to specify the subsection until after the verdict and just before sentencing. There is no legal problem, furthermore, in the indictment charging the mental state of “intention” and the conviction being for acting “knowingly.” An indictment charging acting “intentionally” both psychologically and legally includes acting “knowingly.” In terms of this case, charging this defendant with the intent to deprive necessarily also charged her with having the knowledge that the vehicle belonged to another. The defendant’s opening statement at trial lends further support to the adequacy of defendant’s notice of the mens rea of knowledge. While Pool v. Superior Court, 139 Ariz. 98, 100, 677 P.2d 261, 263 (1984) does state in dicta that the “best procedure” is to charge a defendant under all applicable subsections, the supreme court suggested this as an ideal, not as a constitutional minimum. At the time of an indictment it is not always possible to specify a defendant’s exact mental state existing at the time of the crime. When, at the time of the indictment, the prosecution lacks specific information about a theft defendant’s mental state, the extensive discovery provisions of the Arizona Rules of Criminal Procedure, coupled with the provisions of Rule 13.5 discussed above, provide adequate recourse for a defendant not afforded Pool’s “best procedure.” Finally, as to the notion that the defendant was denied a defense to subsection (A)(5), our review of the record reveals not that this defendant was denied a defense of lack of knowledge but rather that her well-articulated defense simply failed to persuade the jury. III. MOTION TO SUPPRESS Appellant filed a motion to suppress the Datsun 280ZX seized during the freeway stop and the Mazda RX7 seized at her apartment. Officer Hernandez testified at the suppression hearing and the trial court denied appellant’s motion. Appellant argues on appeal that the court erred in denying her motion because the investigatory stop was not based upon a “particularized” and “founded” suspicion by the officer that a crime was being committed. The trial court’s ruling on a motion to suppress will not be disturbed on appeal absent clear and manifest error. State v. Hicks, 133 Ariz. 64, 73, 649 P.2d 267, 276 (1982). An automobile may be stopped and the driver detained for investigatory purposes when the totality of the circumstances give rise to a particularized and founded suspicion that the person is engaged in criminal activity. State v. Martinez, 26 Ariz.App. 210, 547 P.2d 62, approved and adopted, 113 Ariz. 345, 554 P.2d 1272 (1976). The stop was based upon a particularized and founded suspicion by Officer Hernandez. Officer Hernandez testified that appellant was driving close to the median barrier on the freeway and was weaving inside the lane. Believing appellant to be tired or intoxicated and in violation of a law which requires vehicles to travel within one lane, she stopped appellant. We need not decide whether the absence of an expi ration sticker on the Missouri plates warranted the stop because the foregoing facts were sufficient to give rise to the officer’s particularized and founded suspicion of criminal activity. IV. FAILURE TO INSTRUCT ON JOYRIDING Appellant argues that joyriding in violation of A.R.S. § 13-1803 is a lesser included offense within A.R.S. § 13-1802(A)(1). The state argues that appellant is precluded from raising the issue on appeal because she failed to request an instruction on joyriding at trial.- We agree with appellant that a trial court is required to instruct on all lesser included offenses of the offense charge. Here, however, the trial court had no duty to instruct on joyriding because it is not a lesser included offense of theft. An offense is a lesser included offense where all the elements of it are included among the elements of the offense charged. State v. Carpenter, 1 Ariz.App. 522, 526, 405 P.2d 460 (1965). The offense of joyriding requires the unlawful use of means of transportation while the classes of theft set forth in A.R.S. § 13-1802 do not require this element. V. SPECIAL VERDICT Finally, appellant argues that the trial court erred in submitting a special verdict to the jurors for the purposes of determining whether she should be sentenced as a repeat offender on Count I if the jury found her guilty of both counts. Because appellant failed to object to the forms of verdict submitted to the jurors, the issue is waived on appeal. Moreover, there was no prejudice inherent in the special verdict. The court made it clear in its instructions to the jurors that they should return a special verdict only if they first found appellant guilty of both counts of theft. For the foregoing reasons the judgment below is affirmed. MEYERSON, Acting, P.J., and CONTRERAS, J., concur. NOTE: The Honorable RUDOLPH J. GERBER, Maricopa County Superior Court Judge, was authorized to participate in this matter by the Chief Justice of the Arizona Supreme Court pursuant to Art. 6 § 3, Ariz. Const. . The indictment states: On or between the 8th day of November, 1982 and the 19th day of December, 1982, JONNENE LA VAE WINTER and DEAN EDWARD NICHOLSON, knowingly controlled property of Eastside Datsun of Columbus, Ohio, to-wit: a 1982 Datsun 280ZX Turbo, VIN # JN1CZ0657CX039, of a value of one thousand dollars or more, with the intent to deprive Eastside Datsun of Columbus, Ohio, of such property, in violation of A.R.S. §§ 13-1802, 13-1801, 13-701, 13-702 and 13-801 and 13-604.01. COUNT II: charging that in Maricopa County, Arizona: On or between the 13th day of July, 1982, and the 20th day of December, 1982, JONNENE LA VAE WINTER and DEAN EDWARD NICHOLSON, knowingly controlled property of Van Wyk Mazda of Tucson, Arizona, to-wit: a 1982 Mazda RX7, VIN # JM1FB3311C0645383, of a value of one thousand dollars or more, with the intent to deprive Van Wyk Mazda of Tucson, Arizona, of such property, in violation of A.R.S. §§ 13-1802, 13-1801, 13-701, 13-702 and 13-801 and 13-604.01. . The state contends that appellant's general objection to the charge was insufficient to preserve the issue on appeal. During the settling of instructions, defense counsel stated, "[f]or the record, the instructions should only reflect the charge in the indictment.” Counsel’s comment clearly indicated to the court the basis for objecting to the theft instruction. Therefore, we address the merits of the issue.' . Counsel for appellant began his opening statement with the following remarks: The question is whether or not there is a conspiracy having to do with these automobiles, or whether or not Ms. Winter was simply driving these vehicles at the courtesy of Mr. Nicholson, that is to say whether or not Ms. Winter really had any knowledge or awareness that these vehicles were stolen, or whether or not she was simply using cars that were provided for her ... or not. (Emphasis added.) Thus, it is simply incorrect to suggest that appellant had no notice of the potential applicability of subsection (A)(5) to the case. . A.R.S. § 13-1803 provides: A. A person commits unlawful use of means of transportation if, without intent permanently to deprive, such person knowingly takes unauthorized control over another’s means of transportation. B. Unlawful use of means of transportation is a class 6 felony.

OPINION LIVERMORE, Judge. Defendant was convicted of sexual assault, burglary, and aggravated assault. These convictions were reversed because a defense witness had been inappropriately precluded as a discovery sanction. State v. Smith, 140 Ariz. 355, 681 P.2d 1374 (1983). On remand, he was again convicted and sentenced to prison for thirty-six years. Defendant first contends that the speedy trial limits of Rule 8, Rules of Criminal Procedure, 17 A.R.S., were violated. Rule 8.2(d) requires that retrial occur within sixty days of the filing of an appellate mandate. The mandate in this case was filed May 10, 1984. Despite efforts by the county attorney and court orders, the defendant was not returned from prison to Mohave County until June 22, 1984, and counsel was not appointed for him until four days later. Trial was set for July 3, 1984. In the course of protracted discovery squabbles the court determined that defense counsel could not be adequately prepared by July 3. Apparently, the court on its own motion, in order to insure adequacy of representation, continued the trial for four weeks. Thereafter continuances were granted because of a defense special action and a prosecution initiated Rule 11 inquiry into competency. It is only if each of these continuances is properly excluded from the Rule 8 time limits that the ultimate trial was timely. Essentially defendant’s claim, as presented to the trial court, is that the delay in returning him to Mohave County and in appointing counsel to represent him resulted in a situation in which if he asserted his right to an immediate trial he would have to forego his right to the adequate assistance of counsel and that if he insisted on proper representation he would have to give up his right to prompt trial. Because this choice resulted from the state’s negligence in returning him for trial, he argues, it was an impermissible one and State v. Tucker, 133 Ariz. 304, 651 P.2d 359 (1982), mandates that the case be dismissed. In rejecting this claim, we note first that the Rule 8 time limits are not constitutional commands. Indeed, no claim is made that constitutional speedy trial rights were violated. While our rule-based time limits are important in insuring prompt trials, they should not be slavishly adhered to when to do so would damage other equally significant values. Prime among these is that any trial at its inception must appear proper to resolve finally the issues dividing the parties. When defense counsel states that he is not adequately or fully prepared on the eve of trial, where the lack of preparation is not due to an absence of diligence on his part, a trial judge does not err in continuing the matter. Nor is this result changed because defendant insists on going to trial. The judge’s obligation is to see that justice is done. It is not to require a trial, a conviction in which may be immediately overturned for ineffective assistance of counsel. This result has additional policy reasons supporting it and can be achieved within the language of Rule 8. When the state is prepared to go to trial within the time limits, we believe it would be inappropriate to require judicial inquiry into whether the defense’s inability to proceed is due to some “fault” on the part of the state. That would create yet another sub-issue for litigation unrelated to the substantial issues in the case. And it would be an issue extraordinarily difficult for the court to resolve. In our capacity as a reviewing court, we take notice that counsel are quick to claim bad faith delay on the part of their opponents. To insist on a judicial resolution of every such claim would be to create a nightmare of new litigation and an additional strain on already overtaxed judicial resources. In these circumstances, we hold that the continuance ordered by the judge to allow adequate defense preparation is excluded time either as a delay occasioned on behalf of the defendant under Rule 8.4(a) or as a delay resulting from a continuance under Rule 8.4(d) granted on the court’s own motion as “indispensable in the interests of justice” under Rule 8.5. This result is not affected by State v. Tucker, supra, because in that case the state was not prepared to go to trial. The additional delays in this case were also excluded time. The time seeking special action relief, on speedy trial grounds, was delay occasioned on behalf of the defendant. The time for Rule 11 proceedings, even though state initiated, was properly excluded under Rule 8.4(a). State v. Starcevich, 139 Ariz. 378, 678 P.2d 959 (App.1983). The defendant’s second contention is that the trial judge applied the wrong burden of proof in finding a photographic lineup not impermissibly suggestive. The prosecutor argued that the burden was on the defendant to prove suggestiveness. In fact, the burden is on the prosecution to disprove it by clear and convincing evidence. State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970). The trial judge did not mention the burden in his ruling but the defendant argues that he must have applied the rule stated by the prosecutor. We know of no presumption that the trial judge applies misstatements of the law by counsel and we decline to create one. Had defense counsel wished further elaboration from the court, the burden was on him to request it. State v. Lee, 110 Ariz. 357, 519 P.2d 56 (1974). During the trial a defense investigator reported to the court that he might have discussed the case in front of one of the jurors. The juror was questioned and disclaimed any memory of such a conversation. The prosecutor requested that this juror be designated as the alternate and, at the conclusion of the trial, the court did so. Defendant argues that this ruling violated Rule 18.5(h), Rules of Criminal Procedure, 17 A.R.S., requiring that the alternate juror be chosen by lot. Because a defendant is not entitled to any particular jury, we may not reverse unless the court’s action deprived the defendant of a fair and impartial jury. State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1978). There is no suggestion of such a deprivation on this record. Defendant next argues that the prosecution was permitted to prove an allegedly inconsistent statement of a defense alibi witness on a collateral matter. We have examined the inquiry; the explanation of the witness was perfectly understandable and no inconsistency survived that explanation. Error, if any, in the form of the inquiry, which involved proof of the inconsistency by playing a tape recording to the witness, was harmless. Defendant finally contends that the prosecutor argued facts not in evidence in her closing argument by saying that the victim had identified the defendant in a pretrial lineup. The victim at trial identified the defendant as her assailant and testified that she had picked her attacker out of a pretrial lineup. That is sufficient to permit the argument. It was not necessary to introduce the lineup nor to have independent testimony that it was defendant’s picture she identified.- That it was his picture is a fair inference from the evidence. State v. Zaragoza, 135 Ariz. 63, 659 P.2d 22, cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1356 (1983). The judgments and sentences are affirmed. HATHAWAY, P.J., and LACAGNINA, J., concur. NOTE: This cause was decided by the Judges of Division Two as authorized by A.R.S. § 12-120(E).

OPINION FERNANDEZ, Judge. Appellee and three others were arrested for burglary of two Tucson businesses. A jury convicted appellee of two counts of third-degree burglary in violation of A.R.S. § 13-1506. Appellee’s motion for new trial was granted because he had been denied a jury instruction that second-degree criminal trespass is a lesser-included offense of burglary in the third degree. The only issue in this appeal is whether the trial court should have instructed the jury on second-degree criminal trespass, A.R.S. § 13-1503(A), as a lesser-included offense of third-degree burglary, A.R.S. § 13-1506. The instruction was properly not given and we reverse. Appellee testified that he went along with the others after helping to pry open a gate. The four climbed onto the roof of the Invisible Theatre and entered the building through a vent. Appellee denied taking any money himself although he saw others remove money from a box. The four then went into the Eldon Drapery Cleaner business where appellee testified some property was taken. Appellee stated he considered his activities to be a “prank.” The burglary charges in the indictment were as follows: “On or about the 26th day of October, 1983, ... THOMAS DAVID KOZAN committed burglary in the third degree of a non-residential structure, located at 1400 North 1st Avenue, belonging to INVISIBLE THEATRE, in violation of A.R.S. §§ 13-1506, 13-701, 13-702, 13-801, 13-803 and 13-604 A and C. “On or about the 26th day of October, 1983, ... THOMAS DAVID KOZAN committed burglary in the third degree of a non-residential structure, located at 1406 North 1st Avenue, belonging to VERNON WALKER, in violation of A.R.S. §§ 13-1506, 13-701, 13-702, 13-801, 13-803 and 13-604 A and C.” A.R.S. § 13-1506 provides, in pertinent part, as follows: “A person commits burglary in the third degree by entering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial yard with the intent to commit any theft or any felony therein.” A.R.S. § 13-1503(A) reads as follows: “A person commits criminal trespass in the second degree by knowingly entering or remaining unlawfully in or on any nonresidential structure or in any fenced commercial yard.” The court in State v. Gooch, 139 Ariz. 365, 678 P.2d 946 (1984) discussed the procedure for determining whether an offense is a lesser-included offense. It stated that “a court may consider two bases: ‘1) the included offense is by its very nature always a constituent part of the major offense charged; or 2) the terms of the charging document describe the lesser offense even though the lesser offense would not always form a constituent part of the major offense charged.’” 139 Ariz. at 366, 678 P.2d at 947, quoting In re Maricopa County Juvenile Action No. J-75755, 111 Ariz. 103, 105, 523 P.2d 1304, 1306 (1974). In other words, a court may inquire as to whether the greater offense, as described by a statute or as stated in the charging document, can be committed without necessarily committing the lesser offense. Once the determination is made that the offense is a lesser-included offense, the court then must consider whether the evidence supports the requested instruction. In this case the charging document does not describe the lesser offense of criminal trespass since it does not specifically include the element of “knowingly” entering or remaining unlawfully. Arizona courts have consistently held that criminal trespass is not a lesser-included offense of burglary. State v. Malloy, 131 Ariz. 125, 639 P.2d 315 (1981); State v. Ennis, 142 Ariz. 311, 689 P.2d 570 (App.1984); State v. Thompson, 139 Ariz. 133, 677 P.2d 296 (App.1983); State v. Mitchell, 138 Ariz. 478, 675 P.2d 738 (App.1983). Appellee contends that Malloy is no longer applicable because the legislature in 1981 amended the definition of “knowingly” by adding the following sentence: “‘Knowingly’ means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.” A.R.S. § 13-105(5)(b) (emphasis added). The state contends that the addition to the statute nullifies the previous distinction between criminal trespass and burglary stated in Malloy and that “knowingly” no longer means anything additional in the criminal trespass statute. We find no merit in that contention. “ ‘Enter or remain unlawfully’ means an act of a person who enters or remains on premises when such person’s. intent for so entering or remaining is not licensed, authorized or otherwise privileged.” A.R.S. § 13-1501(1). Although at first glance it may appear that the amendment of the definition of “knowingly” changes the reasoning in Malloy, it really does not. Malloy holds that the additional element to be proven for criminal trespass is that the defendant was aware that his entry or remaining was unlawful. Regardless of the definition of “knowingly,” the definition of criminal trespass itself requires that the person knowingly enter or remain unlawfully. Where the criminal statute itself makes this requirement, that is, that the defendant know his entry or remaining was unlawful, it is still an essential element of the crime even though no longer required for the mental state of “knowingly.” Because neither of the bases for determining that trespass is a lesser-included offense was met in this case, it is not necessary to make the second determination as to whether the evidence would have rationally supported a jury conclusion that the state had failed to prove an element of the greater offense. The legislative amendment has not changed the rule in State v. Malloy, supra, and we find that the trial court erred. Reversed and remanded for sentencing. BIRDSALL, P.J., and HOWARD, J., concur.