NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

POWER ROAD-WILLIAMS FIELD, LLC, an Arizona limited liability 

company; GEORGE M. SIEGELE; and KEITH PULVER, 

Plaintiffs/Appellants,

v.

TOWN OF GILBERT, an Arizona municipality, and its members of its 

counsel acting in their official capacity, JOHN W. LEWIS, JENN 

DANIELS, EDDIE COOK, VICTOR PETERSEN, JOHN SENTZ, JORDAN 

RAY, and BEN COOPER; CITY OF MESA, an Arizona municipality; 

COUNTY OF MARICOPA, a political subdivision of the State of Arizona, 

Defendants/Appellees.

No. 1 CA-CV 13-0609

Appeal from the Superior Court in Maricopa County

No. CV2011-005700

The Honorable George H. Foster, Jr., Judge

APPEAL DISMISSED AS MOOT

COUNSEL

Francis J. Slavin, P.C., Phoenix

By Francis J. Slavin, Ellen B. Davis

Counsel for Plaintiffs/Appellants

Grasso Law Firm, P.C., Chandler

By Robert Grasso, Jr., Jenny J. Winkler

Counsel for Defendants/Appellees Town of Gilbert and all named Gilbert Officials
2

Dickinson Wright, PLLC, Phoenix

By Gary L. Birnbaum, David J. Ouimette

Counsel for Defendant/Appellee City of Mesa

Maricopa County Attorney’s Office, Phoenix

By J. Kenneth Mangum, James Fritz

Counsel for Defendant/Appellee Maricopa County

MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which 

Presiding Judge Patricia A. Orozco and Judge Randall M. Howe joined.

P O R T L E Y, Judge:

¶1 Power Road-Williams Field, LLC, an Arizona limited liability 

company, George M. Siegele, and Keith Pulver (collectively “Appellants”) 

appeal the dismissal of Counts One (failure to conform to the Gilbert 

General Plan), Three (failure to enter into an intergovernmental agreement) 

and Four (arbitrary and irrational exercise of police powers) of their First 

Amended Complaint pursuant to Arizona Rule of Civil Procedure (“Rule”) 

12(b)(6) for failure to state a claim, and the summary judgment granted in 

favor of the Town of Gilbert, the City of Mesa and Maricopa County 

(collectively “Appellees”) as to Count Two (failure to follow statutory 

procedures). For the following reasons, we dismiss the appeal.

PROCEDURAL BACKGROUND

¶2 Appellees were engaged in a multi-phased, multi-year project 

to widen and improve a ten-mile stretch of Power Road from Baseline Road 

to Chandler Heights Road. Appellants disagreed with the Phase III (“the 

Project”) design of the multi-phased project, which encompassed the 

intersection of Power Road and Williams Field Road. After lobbying 

unsuccessfully to persuade Appellees to choose a different design, 

Appellants sued seeking to stop the Project. Appellants, however, did not 

seek a preliminary injunction or other stay of construction pending the 

outcome of the litigation. 

¶3 After Appellants were allowed to amend their complaint, 

Appellees successfully moved to dismiss three of four counts of the

amended complaint for failing to state a claim for which relief could be 
POWER et al. v. GILBERT et al.

Decision of the Court

3

granted under Rule 12(b)(6). The parties then filed cross-motions for 

summary judgment on the remaining count, and the court subsequently 

entered judgment in favor of Appellees. The Project continued during the 

course of the litigation and is now complete. Appellants appealed and we 

have jurisdiction under Arizona Revised Statutes (“A.R.S.”) section

12-2101(A)(1).1 

DISCUSSION

¶4 Appellants, who sought declaratory judgment and injunctive 

relief, argue that the trial court erred in granting Appellees’ motion to 

dismiss and motion for summary judgment because (1) the Project failed to 

conform to the Gilbert General Plan; (2) Appellees failed to comply with the 

reviews and reports requirements under A.R.S. § 9-461.01; (3) Appellees 

failed to adopt an intergovernmental agreement; and (4) Appellants were 

entitled to a trial on their claim for abuse of power. Appellees contend, 

however, that this appeal is moot because the Project has been completed.2 

We agree. 

¶5 Unlike federal courts, our state courts do not have a

“constitutional provision constraining it to consider only cases or 

controversies.” Fraternal Order of Police Lodge 2 v. Phoenix Emp. Relations Bd., 

133 Ariz. 126, 127, 650 P.2d 428, 429 (1982) (internal quotation marks

omitted). Our supreme court, however, has consistently held that state 

courts will “refrain from considering moot or abstract questions.” Id.

Therefore, we will not decide a question that is unrelated to an actual 

controversy or that is rendered moot by a change in circumstances. See id;

Contempo–Tempe Mobile Home Owners Ass’n v. Steinert, 144 Ariz. 227, 229, 

696 P.2d 1376, 1378 (App. 1985). 

¶6 Here, although Appellants objected to the split alignment 

design of the Project, they did not seek a preliminary injunction or any other 

stay to stop construction of the Project. As a result, the construction project

with the split alignment continued and is now complete. The Project’s 

completion renders this appeal moot because the principal relief sought by 

 

1 We cite to the current version of the statute unless otherwise noted.

2 The Project construction began in June 2012 and was completed as of 

June 2014. See http://mesaaz.gov/engineering/Projects/PowerRdImpr/ 

PowerRdImpr.aspx (“Project is complete.”).
POWER et al. v. GILBERT et al.

Decision of the Court

4

Appellants in their amended complaint — to “stop the Project”3 — is no 

longer an available remedy. See ASH, Inc. v. Mesa Unified Sch. Dist. No. 4, 

138 Ariz. 190, 191-92, 673 P.2d 934, 935-36 (App. 1983) (holding that 

plaintiff’s appeal was moot where challenged contract had been fully 

performed and plaintiff, in failing to seek any of the available procedural 

remedies to stay performance of the contract pending litigation, had not 

effectively preserved the issue on appeal); accord W. Sun Contractors Co. v. 

Superior Court, 159 Ariz. 223, 227, 766 P.2d 96, 100 (App. 1988) (noting, while 

issuing an interlocutory stay and granting expedited consideration of the 

merits, that “[b]ecause of the peculiar nature of public contracts the courts 

are loath to grant relief where such contracts have been fully performed 

[and] . . . if no stay were issued, the completion of the work would moot 

any relief”) (internal citations omitted). 

¶7 Courts will only grant a declaratory judgment when there is 

a justiciable issue between the parties. Thomas v. City of Phoenix, 171 Ariz. 

69, 74, 828 P.2d 1210, 1215 (App. 1991). Moreover, Appellants’ failure to 

seek to enjoin the construction before it was completed not only moots their 

request for injunctive relief, but also their claim for declaratory relief. See 

id. (“Courts will not hear cases that seek declaratory judgments that are 

advisory or answer moot or abstract questions. Declaratory relief should 

be based on an existing state of facts, not facts that may or may not arise in 

the future.”) (internal citations omitted).

¶8 We can, however, decide an issue of law despite its mootness 

if the matter is of considerable public importance or the principle involved 

is a continuing one. State v. Superior Court, 104 Ariz. 440, 441, 454 P.2d 982, 

983 (1969). However, we do not find that the circumstances of this case fall 

within either exception. Although the issue involved in this case, the split 

alignment design, is capable of repetition, we cannot say as a matter of law 

that it will evade review. Further, given the completion of the project, the 

question involved does not rise to a sufficient level of “public importance” 

to be an exception to the mootness doctrine. See Camerena v. Dep’t of Pub.

Welfare, 106 Ariz. 30, 470 P.2d 111 (1970). 

 

3 The amended complaint sought the following relief: (1) a declaration that 

the split alignment design was arbitrary and capricious, irrational and an 

abuse of discretion; (2) an order enjoining the construction and other work 

associated with the split alignment design; and (3) attorney’s fees and costs.
POWER et al. v. GILBERT et al.

Decision of the Court

5

CONCLUSION

¶9 Because the Project has been completed, Appellants’ appeal is 

moot. Accordingly, we dismiss the appeal.