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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANIEL POPE, Plaintiff/Appellant,

v.

CITY OF PHOENIX, Defendant/Appellee.

_________________________________

RACHEL ROBERTS, Plaintiff/Appellant,

v.

CITY OF PHOENIX, Defendant/Appellee.

No. 1 CA-TX 20-0006, 1 CA-TX 21-0004

(Consolidated)

Appeal from the Arizona Tax Court

No. TX2018-00759, TX2020-000833

The Honorable Christopher Whitten, Judge

The Honorable Danielle J. Viola, Judge

AFFIRMED

COUNSEL

Shawn Aiken PLLC, Phoenix

By Shawn Aiken

Co-Counsel for Plaintiffs/Appellants

FILED 6-13-2023
2

Holden Willits PLC, Phoenix

By Robert G. Schaffer

Co-Counsel for Plaintiffs/Appellants

Kickham Hanley PC, Royal Oak, MI

By Gregory D. Hanley

Co-Counsel for Plaintiffs/Appellants

Osborn Maledon PA, Phoenix

By Eric M. Fraser

Counsel for Defendant/Appellee City of Phoenix

MEMORANDUM DECISION

Chief Judge Kent E. Cattani delivered the decision of the court, in which 

Presiding Judge Cynthia J. Bailey and Judge D. Steven Williams joined.

C A T T A N I, Chief Judge:

¶1 Daniel Pope and Rachel Roberts appeal the dismissal of their 

anti-diversion claims against the City of Phoenix. For reasons that follow, 

we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In the mid-2000s, the City built a rental car facility to serve 

Sky Harbor Airport. To fund the project, the City implemented a customer 

facility charge (“CFC”) of $6 per transaction day for each vehicle rented at

the facility. See Phoenix City Code § 4-79(A). Funds generated by the CFC 

are to be used to pay debt service on the bonds used to construct the facility 

as well as for ongoing costs associated with the facility and transportation 

to the airport, including an extension of the SkyTrain light-rail system. See

Phoenix City Code § 4-79(C)(1).

¶3 Pope rented a car at the facility in 2017 and paid a CFC of $36. 

Roberts rented a car at the facility in 2019 and paid a $30 CFC. Each brought 

a putative class action alleging that the CFC violates the Arizona 

Constitution’s anti-diversion provision, which (broadly speaking) requires 

that funds generated by taxes or fees imposed on road users for their road 

use be expended only for road purposes. See Ariz. Const. art. 9, § 14. The 
POPE v. PHOENIX

Decision of the Court

3

City moved to dismiss in each case, and the tax court granted both motions 

on various grounds.

¶4 After the court entered judgment against Pope, Pope timely 

filed a motion for new trial, which the court denied. Pope then appealed. 

The court entered judgment against Roberts, and after the court reopened 

the time to appeal under ARCAP 9(f), Roberts appealed. We consolidated 

the two appeals.

DISCUSSION

I. Appellate Jurisdiction.

¶5 Preliminarily, the City argues that Pope did not timely appeal 

the tax court’s judgment, and that we thus lack appellate jurisdiction over 

his case. The tax court entered judgment against Pope on March 10, 2020, 

and Pope timely filed a motion for new trial 14 days later on March 24. 

After full briefing, the court denied the motion on May 6. Pope filed his 

notice of appeal 16 days later on May 22.

¶6 Under the Arizona Rules of Civil Appellate Procedure, if a 

party timely and properly files a post-judgment motion, the 30-day window 

for filing an appeal does not begin to run until after the court enters a signed 

written order resolving the last such motion. See ARCAP 9(a), (e)(1). A 

motion for new trial is one such time-extending post-judgment motion. 

ARCAP 9(e)(1)(D). And because the Arizona Rules of Civil Procedure

generally “govern all Arizona Tax Court proceedings,” Ariz. Tax Ct. R. of 

Prac. 2, a motion for new trial may properly be filed in a tax case. See Ariz. 

R. Civ. P. 59; see also SMP II Ltd. P’ship v. Ariz. Dep’t of Revenue, 188 Ariz. 

320, 322 (App. 1996) (noting the tax appeal includes denial of a motion for 

new trial); Estate of Bohn v. Scott, 185 Ariz. 284, 289 (App. 1996); State ex rel. 

Ariz. Dep’t of Revenue v. Care Constr. Corp., 166 Ariz. 294, 296–97 (App. 1990); 

cf. Aileen H. Char Life Int. v. Maricopa County, 208 Ariz. 286, 298–99, ¶¶ 36–

41 (2004) (affirming the tax court’s ruling on a post-judgment Rule 60 

motion for relief from judgment).

¶7 Here, Pope’s motion for new trial was timely filed, see Ariz. R. 

Civ. P. 59(b)(1) (15-day deadline to file motion for new trial), and Pope filed 

his notice of appeal 16 days after the court ruled on the motion, well within 

the 30-day deadline. The City asserts, however, that ARCAP 9 (including 

its provision for time-extending motions) does not apply to appeals from 

tax court judgments. Instead, in the City’s view, a tax-court-specific statute 

restricts the time to appeal to a flat 30 days from entry of judgment by 

directing that “[t]he judgment is final unless within thirty days after the 
POPE v. PHOENIX

Decision of the Court

4

entry of the judgment a notice of appeal is filed with the clerk of the tax 

court.” A.R.S. § 12-170(C).

¶8 As the City notes, ARCAP 9(a) contemplates that the deadline 

to appeal can permissibly be varied, setting a baseline deadline of 30 days 

after entry of judgment “unless the law provides a different time.” But § 12-

170(C) does not provide a different time. Enacted when the Legislature 

established a dedicated tax court, see 1988 Ariz. Sess. Laws, ch. 330, § 2 (38th 

Leg., 2d reg. sess.), § 12-170(C) sets a deadline of 30 days from entry of 

judgment to appeal—just like ARCAP 9(a). That is, the final-judgment rule 

now codified in § 12-2101(A)(1) still provides the substantive right to appeal 

from a final tax court judgment, see Devenir Assocs. v. City of Phoenix, 169 

Ariz. 500, 502 (1991) (citing prior codification of A.R.S. § 12-2101(A)(1)), and 

§ 12-170(C) simply “confirms that the procedures for appealing final 

judgments under A.R.S. § 12-2101[(A)(1)] also apply to judgments entered 

by the tax court,” Devenir, 169 Ariz. at 503 (quoting People of Faith v. Ariz. 

Dep’t of Revenue, 164 Ariz. 102, 105 (App. 1990)).

¶9 The City relies on the Devenir court’s observation that § 12-

170(C) “emphasizes that a final judgment of the tax court becomes absolute 

and unreviewable if no notice of appeal is filed within the 30 days following 

its entry.” Devenir, 169 Ariz. at 503 (quoting People of Faith, 164 Ariz. at 105). 

But this simply confirms that the procedures for appealing civil judgments 

apply in tax court; a failure to timely appeal from a civil judgment (which 

also must be final before appeal is proper) likewise makes that judgment 

“unreviewable.” See id.; see also, e.g., Edwards v. Young, 107 Ariz. 283, 284 

(1971) (“[W]here the appeal is not timely filed, the appellate court acquires 

no jurisdiction other than to dismiss the attempted appeal.”); cf. Ariz. R. 

Civ. P. 54(a)–(c), 58(b) (entry of final judgment).

¶10 It would be anomalous to permit post-judgment motions 

asserting errors in the tax court’s judgment, see supra ¶ 6, but then require

that an appeal be filed before the tax court has an opportunity to correct any 

error (or reaffirm its judgment). See generally Ariz. R. Civ. P. 50(b), 52(b), 

59(a)–(b), 59(d), 60(b)–(c) (15-day deadline for post-judgment motions, 

including Rule 60 motions under ARCAP 9(e)(1)(D)); Ariz. R. Civ. P. 

7.1(a)(3) (permitting 10 days for a response and 5 days for a reply to 

motions). Pope’s case demonstrates the quandary: no appeal would have 

been necessary (from Pope’s perspective) if the tax court had granted his 

timely motion for new trial, but the court did not rule until more than 30 

days after entering judgment, at which point (under the City’s 

interpretation) Pope would not be able to appeal. Moreover, the City’s 

interpretation of finality under § 12-170(C) would presumably divest the 
POPE v. PHOENIX

Decision of the Court

5

tax court of authority to rule on a post-judgment motion (not just a party’s 

ability to appeal the ruling) 30 days after judgment.

¶11 In sum, § 12-170(C) simply confirms that the procedures for 

appealing civil judgments apply in tax court. Thus, ARCAP 9(e)(1)(D) 

extended the time for Pope to appeal, and his appeal was timely filed. We 

have jurisdiction under A.R.S. § 12-2101(A)(1).1

II. Anti-Diversion.

¶12 The City requires all rental car companies that either lease 

space at or obtain customers through Sky Harbor’s consolidated rental car 

facility to collect a CFC of “six dollars per transaction day per vehicle” from 

all airport customers. Phoenix City Code § 4-79(A). Each rental company 

must hold those funds in trust and must, on a monthly basis, “remit [to the 

City] all CFC’s that were collected or should have been collected from its 

airport customers.” Phoenix City Code § 4-79(B)–(C). Failure to comply 

with these requirements is a class 1 misdemeanor. Phoenix City Code § 4-

80.

¶13 Pope and Roberts argue that the CFC is a fee on road users

within the ambit of the anti-diversion provision and that the City 

improperly uses those funds for non-road-related purposes. They contend 

that the tax court thus erred by dismissing their complaints for failure to 

state a claim. We review the dismissal de novo, assuming the truth of the 

complaint’s well-pleaded facts. Coleman v. City of Mesa, 230 Ariz. 352, 355–

56, ¶¶ 7–9 (2012). We will affirm dismissal under Rule 12(b)(6) if the 

plaintiff “would not be entitled to relief under any interpretation of the facts 

susceptible of proof.” Id. at 356, ¶ 8 (citation omitted).

1 The City does not challenge our jurisdiction to consider Roberts’s 

appeal, but we note that her appeal was likewise filed outside the 30-day 

period specified in A.R.S. § 12-170(C)—as was the City’s cross-appeal (later 

voluntarily dismissed) from that judgment. In Roberts’s case, the superior 

court granted Roberts’s request under ARCAP 9(f) to reopen the time to 

appeal due to lack of notice of entry of the judgment. The City leaves

unexplained why § 12-170(C) should be interpreted to prevent timeextension under ARCAP 9(e) for Pope’s appeal while permitting reopening 

the time to appeal under ARCAP 9(f) for Roberts’s appeal. In any event, 

given our conclusion that ARCAP 9’s time-extending provisions apply to 

appeals from tax court judgments, we likewise have jurisdiction over 

Roberts’s appeal on this basis.
POPE v. PHOENIX

Decision of the Court

6

¶14 The anti-diversion provision of the Arizona Constitution

prohibits use of funds generated by taxes or fees “relating to registration, 

operation, or use of vehicles on the public highways or streets” for anything 

other than “highway and street purposes”:

No moneys derived from fees, excises, or license taxes relating 

to registration, operation, or use of vehicles on the public 

highways or streets or to fuels or any other energy source 

used for the propulsion of vehicles on the public highways or 

streets, shall be expended for other than highway and street 

purposes . . . .

Ariz. Const. art. 9, § 14. This provision restricts expenditures, but only if 

the source of the funds falls within specified categories: as relevant here, 

fees “relating to . . . operation[] or use of vehicles on the public highways or 

streets.” Id.

¶15 Pope and Roberts urge us to interpret “relating to” broadly as 

anything having a “connection with” or “reference to” road use. But the 

Arizona Supreme Court has already rejected that type of approach and has 

instead construed “relating to” in this context to mean a tax or fee “[1] 

imposed as a prerequisite to, or [2] triggered by, the legal operation or use 

of a vehicle on a public road.” Saban Rent-a-Car LLC v. Ariz. Dep’t of Revenue, 

246 Ariz. 89, 99, ¶ 39 (2019); see also id. at 95–99, ¶¶ 22, 26–36. The CFC is 

neither.

¶16 Here, payment (or non-payment) of the CFC has no bearing 

on whether a rental vehicle can legally be used or operated on roads. Car 

rental companies must register their vehicles (and pay the necessary 

registration fees) to authorize use of their vehicles on public roadways. See

A.R.S. §§ 28-2153(A) (prohibiting operation of a motor vehicle without 

current registration), -2157(E) (requiring payment of fee for vehicle 

registration); cf. Saban, 246 Ariz. at 98, ¶ 33. And car renters must have a 

valid driver’s license (which requires payment of a related fee) to lawfully 

operate a rental car on Arizona’s roadways. See A.R.S. §§ 28-3151(A) 

(prohibiting driving “without a valid driver license”), -3158(B) (requiring 

payment of fee for driver license), -3002 (setting fees for driver licenses); cf. 

Saban, 246 Ariz. at 98, ¶ 33. The CFC, on the other hand, does not affect 

whether a driver may lawfully operate a rental vehicle or whether a rental 

vehicle may lawfully be used on the road, and thus it is not “a prerequisite 

to . . . the legal operation or use of a vehicle on a public road” as necessary

to implicate the anti-diversion provision. See Saban, 246 Ariz. at 99, ¶ 39.
POPE v. PHOENIX

Decision of the Court

7

¶17 Pope and Roberts contend otherwise, highlighting that no car 

rental company at the facility will waive the CFC or rent to an airport

customer who refuses to pay. At most, that fact simply highlights that the 

CFC may be a practical requirement to rent a car at the facility. See Phoenix 

City Code § 4-79(A). It is no barrier at all to anyone who chooses to rent 

elsewhere. More importantly, the test under Saban does not ask whether 

payment of the tax or fee presents a practical barrier to (as Pope and Roberts 

phrase it) “getting on the roads.” Rather, the test asks whether the tax or 

fee affects lawful road use: to fall within the anti-diversion provision, 

payment must be necessary for “legal operation or use of a vehicle on a 

public road.” Id. at 99, ¶ 39 (emphasis added). Indeed, a contrary rule

would sweep too broadly, reaching even taxes and fees that Pope and 

Roberts concede are not subject to anti-diversion restrictions, such as a fee 

paid to exit a parking garage, the transaction-privilege tax imposed on car 

rentals, and even the stadium surcharge at issue in Saban. See id. at 97–98, 

¶¶ 31–35.

¶18 Comparing the CFC to a toll, Pope and Roberts assert that the 

CFC is a prerequisite to road usage notwithstanding that customers can 

avoid the charge by renting elsewhere. But a toll is imposed—and payment 

is necessary—for the privilege of using a particular road or bridge. A driver 

cannot lawfully take that route without paying the toll. Non-payment of 

the CFC imposes no such restrictions on whether or where a renter can 

drive. The comparison thus underscores rather than contradicts Saban’s 

focus on whether a tax or fee is a prerequisite to “legal” vehicle operation. 

See id. at 99, ¶ 39. Being a practical prerequisite to completing the rental 

transaction at a particular location means the CFC is essentially a facility 

usage fee and does not transmute the charge into a legal prerequisite to

lawful operation or use of the vehicle on Arizona roadways.

¶19 Moreover, as the governing ordinance makes clear, the CFC 

is triggered not by a rental customer’s eventual road use but rather by car 

rental companies’ use of the airport’s consolidated rental car facility to serve 

customers. See Phoenix City Code § 4-79. The CFC is required only for car 

rental companies that use the facility (whether occupying space on-site or 

obtaining customers through the facility for an off-site location), and those 

companies must collect the fee from only their airport customers. Phoenix 

City Code § 4-79(A). Furthermore, the ordinance directs that the funds 

generated by the CFC go to the facility itself for construction, ongoing 

operating costs, and future capital improvements, thus highlighting that 

the CFC is a usage fee intended to help offset the facility’s cost. See Phoenix 

City Code § 4-79(C)(1).
POPE v. PHOENIX

Decision of the Court

8

¶20 Pope and Roberts assert, however, that the CFC is necessarily 

directed to customers’ road usage, not their use of the facility, because it is 

calculated based on “transaction days” (duration of the rental) and not, for 

instance, as a flat rate or percentage per transaction. See Phoenix City Code 

§ 4-79(A) (CFC imposed at a rate of “six dollars per transaction day per 

vehicle”). But this amount plausibly relates to the volume of a car rental 

company’s business at the facility: how many vehicles the company needs 

there and thus how much space at the facility it needs to use. And the CFC 

is imposed at the specified rate regardless of whether, how much, or how 

often the customer ultimately uses the car. And because the CFC is 

triggered by use of the facility, not road usage, a customer who does not 

wish to pay the CFC may simply leave Sky Harbor and rent a car elsewhere.

¶21 Pope and Roberts argue that the CFC nevertheless falls within 

the anti-diversion provision because it is imposed directly on road users 

(the renters) and not on car rental companies (as was the case in Saban). See 

Saban, 246 Ariz. at 91, ¶¶ 1, 3. But the basic premise of this argument—that 

the CFC is imposed on rental customers—is far from clear. To be sure, the 

ordinance directs rental car companies to collect the CFC from airport

customers. Phoenix City Code § 4-79(A) (covered rental car companies 

“shall collect” the CFC at the specified rate “from all Sky Harbor Airport 

customers”). But ultimately, it is the companies (not the customers) that are 

obligated to remit “all CFC’s that were collected or should have been 

collected.” Phoenix City Code § 4-79(C). Thus, by its terms, the ordinance 

controls only behavior by car rental companies, not their customers. See, 

e.g., Phoenix City Code § 4-79(A) (requiring companies to collect the CFC), 

(B) (requiring companies to separately account for CFCs and hold funds in 

trust for the City), (C) (requiring companies to monthly remit all CFCs that 

were or should have been collected). And because the ordinance sets 

requirements only for the companies, the legal obligation to pay the CFC 

and the consequences for non-compliance likewise fall only on the 

companies, not customers. See Phoenix City Code § 4-80 (classifying “a 

violation of the requirements” of ordinances including § 4-79 as a class 1 

misdemeanor).

¶22 But either way, the critical fact remains that the CFC is neither 

a prerequisite to nor triggered by legal use or operation of a vehicle on 

Arizona’s roadways. See supra ¶¶ 16–20. And because the CFC does not 

qualify as a tax or fee “relating to . . . operation[] or use of vehicles on the 

public highways or streets” as defined in Saban, the superior court properly 

dismissed Pope and Roberts’s complaints. See Ariz. Const. art. 9, § 14; 

Saban, 246 Ariz. at 99, ¶ 39. Because dismissal was proper on this basis, we 
POPE v. PHOENIX

Decision of the Court

9

need not address the City’s other proffered grounds for affirming the 

judgments.

III. Attorney’s Fees on Appeal.

¶23 The City requests an award of attorney’s fees on appeal under 

A.R.S. §§ 12-349 and -341.01. In an exercise of our discretion, we deny the 

request.

CONCLUSION

¶24 For the foregoing reasons, we affirm.