IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

KONDAUR CAPITAL CORPORATION,

Plaintiff/Appellant,

v.

PINAL COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF ARIZONA;

AND PAUL R. BABEU, SHERIFF OF PINAL COUNTY,

Defendants/Appellees.

No. 2 CA-CV 2014-0001

Filed June 27, 2014

Appeal from the Superior Court in Pinal County

No. CV201002012

The Honorable Robert Carter Olson, Judge

DISMISSED

COUNSEL

Miles, Bauer, Bergstrom & Winters, LLP, Henderson, Nevada

By Jeremy T. Bergstrom

Counsel for Plaintiff/Appellant

Elardo, Bragg, Appel & Rossi, P.C., Phoenix

By Marc A. Appel

Counsel for Defendants/Appellees
KONDAUR CAPITAL CORP. v. PINAL CO.

Opinion of the Court

2

OPINION

Judge Espinosa authored the opinion of the Court, in which 

Presiding Judge Kelly and Judge Eckerstrom concurred.

E S P I N O S A, Judge:

¶1 Kondaur Capital Corporation (Kondaur) seeks review 

of a declaratory judgment addressing the manner in which Pinal 

County Sheriff Paul Babeu and Pinal County Sheriff’s Department 

(collectively, PCSO) enforce writs of restitution issued in connection 

with statutory eviction actions. See A.R.S. §§ 12-1178 (addressing 

forcible detainer actions), and 33-1377 (addressing special detainer 

actions). Because we determine the issues raised by this appeal are 

moot, we decline review.

Factual and Procedural Background

¶2 In March 2010, Kondaur purchased a Pinal County 

residential property at a trustee’s sale. When the occupants of the 

property, Clinton and Catherine White,

1 failed to vacate the 

premises after service of a written notice and demand to deliver 

possession, Kondaur commenced a forcible detainer action against 

them in Pinal County Superior Court. On May 28, 2010, judgment 

was entered against the Whites, and Kondaur subsequently served 

both the judgment and a writ of restitution on PCSO for 

enforcement and execution. When PCSO failed to deliver 

possession pursuant to the writ after several months, Kondaur 

amended its complaint to add a claim for declaratory relief against 

 

1As a result of the trial court’s November 2013 order severing 

the forcible detainer action and dismissing Kondaur’s unjust 

enrichment claim against the Whites, they are not parties to this 

appeal. We have amended the caption to reflect this fact.
KONDAUR CAPITAL CORP. v. PINAL CO.

Opinion of the Court

3

PCSO,2 alleging it had “refused” to return the property to Kondaur. 

As a remedy, Kondaur sought “a judicial determination of the 

parties[’] rights and duties, and a declaration as to the enforcement 

of the Court’s May 28, 2010 Order.”

¶3 Kondaur subsequently filed a motion for summary 

judgment in which it argued that PCSO was required to enforce a 

writ of restitution “by the end of the following business day after 

receiving it absent exigent circumstances,” and further argued that, 

as owner of the property, Kondaur was “not required to provide the 

former occupant with a moving truck or [other] assistance [in]

moving the former occupant’s personal property.” In a response 

and cross-motion for summary judgment, PCSO urged the court to 

find that it had at least ten business days to serve and enforce a writ 

of restitution and could require the owner of the property to provide 

the occupant with assistance in removing the occupant’s personal 

property.

¶4 After these issues had been fully briefed, Kondaur filed 

a supplemental motion for summary judgment in which it raised 

four additional issues concerning eviction procedure, including the 

proper method for handling information concerning the occupants’ 

bankruptcy, the circumstances under which a writ of restitution can 

expire, how to obtain a new writ upon expiration and the length of 

time occupants can remain in the property after having been served 

with a writ of restitution. The trial court entered judgment on 

Kondaur’s declaratory judgment claim, citing A.R.S. § 12-1831 

 

2As we noted in dismissing Kondaur’s first appeal for lack of a 

final, appealable order, we question the propriety of this procedure 

under the Arizona Rules of Real Property Eviction Actions. Those 

rules do not appear to contemplate the amendment of a forcible 

detainer action to add other types of claims. See Ariz. R. P. Eviction 

Actions 2 (“All eviction actions are statutory summary proceedings 

and the statutes establishing them govern their scope and 

procedure.”); Ariz. R. P. Eviction Actions 8(c) (eviction actions 

cannot be consolidated with other types of actions). However, as 

resolution of this issue would not affect our result here, we decline 

to address it further.
KONDAUR CAPITAL CORP. v. PINAL CO.

Opinion of the Court

4

(Scope of Uniform Declaratory Judgments Act) and Ariz. R. Civ. 

P. 57 (Declaratory Judgments), in support of its finding that the 

claim was justiciable.3 The court’s ruling addressed the following 

seven issues:

Issue 1: Upon proper presentation to 

[PCSO] of a writ of restitution, . . . when 

must [PCSO] execute a writ of restitution 

and remove the occupants from a 

residential structure?

Issue 2: Is [PCSO] required to serve a writ 

of restitution on a person?

Issue 3: Must [PCSO] serve a writ of 

restitution and then give additional time to 

the party in possession before transferring 

possession?

Issue 4: May [PCSO] require the party 

who obtained the writ to provide a moving 

truck or storage for the personal property 

of the person who is being evicted from a 

residence?

Issue 5: Should [PCSO] refuse to enforce a 

writ of restitution when informed by a 

residential occupant of an automatic 

bankruptcy stay from the United States 

Bankruptcy Court?

Issue 6: Does a writ of restitution expire?

Issue 7: What is the procedure to obtain a 

new writ of restitution?

 

3The court also cited the parties’ stipulation “that the Court 

has jurisdiction to grant declaratory relief on the issues presented.”
KONDAUR CAPITAL CORP. v. PINAL CO.

Opinion of the Court

5

¶5 Kondaur’s first appeal was dismissed by this court for 

lack of jurisdiction because its claim for unjust enrichment against 

the Whites was still pending at the time the notice of appeal was 

filed. Kondaur Capital Corp., No. 2 CA-CV 2012-0004, ¶¶ 1, 8. The 

unjust enrichment claim subsequently was dismissed by the trial 

court on Kondaur’s motion, and this appeal followed. Although we 

generally have jurisdiction to review declaratory judgments 

pursuant to A.R.S. §§ 12-1837 and 12-2101(A)(1), we decline to do so 

here for reasons set forth below.

Discussion

Standing

¶6 As an initial matter, we address Kondaur’s standing to 

seek review of all issues ruled on by the trial court. While Kondaur 

acknowledges that the court “agreed with [its] position and granted 

the relief requested on some of the issues presented,” it nevertheless 

seeks review of “all of the issues considered by the Superior Court.”4 

However, appellate jurisdiction is confined to appeals taken by a 

“party aggrieved by the judgment.” Ariz. R. Civ. App. P. 1; see also

Chambers v. United Farm Workers Organizing Committee, 25 Ariz. App. 

104, 107, 541 P.2d 567, 570 (1975) (“court’s ruling which is favorable 

to a party may not be appealed by that party”); Farmers Ins. Grp. v. 

Worth Ins. Co., 8 Ariz. App. 69, 71, 443 P.2d 431, 433 (1968) (“It is a 

prerequisite to our appellate jurisdiction that the appellant be a 

‘party aggrieved’ by the judgment or order.”). And where a lower

court ruling addresses multiple claims for relief, an appellant is only 

entitled to appeal from “‘that part of the judgment by which [it] is 

aggrieved.’” Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 8, 160 P.3d 

 

4Based on this statement, we presume Kondaur is not seeking 

review of Issue 2, which was neither included in its motion for 

summary judgment nor addressed at the hearing on that motion. In 

any event, that issue has been waived as a result of Kondaur’s 

failure to address it herein. See Ariz. R. Civ. App. P. 13(a)(6); 

DeElena v. S. Pac. Co., 121 Ariz. 563, 572, 592 P.2d 759, 768 (1979)

(issues not argued on appeal treated as abandoned).
KONDAUR CAPITAL CORP. v. PINAL CO.

Opinion of the Court

6

223, 226 (App. 2007), quoting In re Gubser, 126 Ariz. 303, 306, 614 P.2d 

845, 848 (1980).

¶7 Although Kondaur cites Camreta v. Greene, ___ U.S. ___, 

131 S. Ct. 2020 (2011), as support for its contention that “a prevailing 

party may appeal a Court’s order,” that decision is inapt for several 

reasons. Camreta addressed the application of article III of the 

United States Constitution and its “case-or-controversy 

requirement” to a petition for certiorari filed by defendants who had 

lost on the merits but succeeded on their claim of qualified 

immunity. Id. at 2028-29. Unlike its federal counterpart, Arizona’s 

constitution does not feature a “case-or-controversy” requirement; 

rather, the directive to intermediate courts to consider appeals 

brought by “aggrieved” parties is rule-based. See Ariz. R. Civ. 

App. P. 1. Moreover, the holding in Camreta was expressly confined 

to situations in which an immunized party seeks review in the 

Supreme Court of a decision finding the party’s conduct had 

violated a litigant’s constitutional rights. Id. at 2033 (“Our decision 

today does no more than exempt one special category of cases from 

our usual rule against considering prevailing parties’ petitions.”). It 

therefore has no application to the issue at hand. Finally, the 

essence of the Camreta holding—that a litigant who prevailed on one 

issue but lost on another may appeal the adverse portion of the 

ruling—is entirely consistent with our decision here. We therefore 

decline Kondaur’s invitation to expand the scope of our review, and 

address only those portions of the ruling wherein the trial court did 

not adopt Kondaur’s position—specifically, Issues 1, 5, and 7.

Mootness

¶8 We now consider whether Kondaur’s remaining claims 

for declaratory relief were rendered moot by the Whites’ eviction 

from the property. Although, as noted above, Arizona courts are 

not constitutionally constrained to consider only “cases” or 

“controversies,” we typically decline to consider moot or abstract 

questions as a matter of judicial restraint. Lana A. v. Woodburn, 211 

Ariz. 62, ¶ 9, 116 P.3d 1222, 1225 (App. 2005), citing Fraternal Order of 

Police Lodge 2 v. Phoenix Emp. Relations Bd., 133 Ariz. 126, 127, 650 

P.2d 428, 429 (1982). As our supreme court has stated: “It is not an 

appellate court’s function to declare principles of law which cannot 
KONDAUR CAPITAL CORP. v. PINAL CO.

Opinion of the Court

7

have any practical effect in settling the rights of litigants.” 

Progressive Specialty Ins. Co. v. Farmers Ins. Co. of Ariz., 143 Ariz. 547, 

548, 694 P.2d 835, 836 (App. 1985). Nor is it our role to “act as a 

fountain of legal advice.” Contempo-Tempe Mobile Home Owners 

Ass’n v. Steinert, 144 Ariz. 227, 229-30, 696 P.2d 1376, 1378-79 (App. 

1985). However, we may elect to consider issues that have become 

moot “‘if there is either an issue of great public importance or an 

issue capable of repetition yet evading review.’” Bank of New York 

Mellon v. De Meo, 227 Ariz. 192, ¶ 8, 254 P.3d 1138, 1140 (App. 2011), 

quoting Phoenix Newspapers, Inc. v. Molera, 200 Ariz. 457, ¶ 12, 27 P.3d 

814, 817 (App. 2001).

¶9 The dispute that prompted Kondaur’s claims against 

PCSO was resolved when the Whites were evicted from their home 

in July 2011. Indeed, Kondaur acknowledged at oral argument on 

its motion for summary judgment that, as a result of the “Whites 

hav[ing] been locked out . . . the issues regarding the execution of 

the writ” are “moot,” and confirmed that it was “seeking declaratory 

judgment not so much for this case, as much as to have guidance for 

how the sheriff’s office should be functioning in future cases.” It 

nevertheless urges us on appeal to “issue a published opinion 

detailing [our] interpretation of . . . Arizona eviction procedures” 

and providing “clear direction on how these issues should be dealt 

with” because they arise with “frequen[cy] . . . in Arizona.” Given 

the undisputed absence of a live controversy, our consideration of 

the merits hinges on the application of one of the exceptions to the 

mootness doctrine identified above. See, e.g., Contempo-Tempe, 144 

Ariz. at 230, 696 P.2d at 1379. We conclude that neither applies here.

¶10 The exception courts have carved out for issues of 

“great public importance” typically applies when an “issue . . . will 

have broad public impact beyond resolution of the specific case.” 

Cardoso v. Soldo, 230 Ariz. 614, ¶ 6, 277 P.3d 811, 814 (App. 2012). We 

generally decline to apply this exception where an appellant’s 

argument is grounded on events that occurred in the specific case. 

Id. Here, despite Kondaur’s attempt to portray the issues raised in 

the trial court’s declaratory judgment as broadly relevant, it is 

apparent from the ruling that they reflect a complicated progression 

of interwoven facts dependent on specific responses to a writ of 
KONDAUR CAPITAL CORP. v. PINAL CO.

Opinion of the Court

8

restitution by the occupants of a property and the executing 

authority. More importantly, Issues 1, 5, and 7 were resolved 

through straightforward application of the statutory language, 

confirming that this case is not appropriate for discretionary review

pursuant to the “public importance” exception because it does not 

involve a significant question. See London v. Broderick, 206 Ariz. 490, 

¶ 7, 80 P.3d 769, 771 (2003) (deciding a moot issue “because the issue 

it raises is important”); Big D Constr. Corp. v. Court of Appeals, 163 

Ariz. 560, 563, 789 P.2d 1061, 1064 (1990) (courts will consider 

“significant questions” pursuant to public importance exception to 

mootness doctrine).

¶11 Nor do we find that discretionary review is appropriate 

pursuant to the exception applied to issues that are “‘capable of 

repetition yet evading review.’” Bank of New York Mellon, 227 Ariz. 

192, ¶ 8, 254 P.3d at 1140, quoting Phoenix Newspapers, Inc., 200 Ariz. 

457, ¶ 12, 27 P.3d at 817. Although Kondaur cites “ongoing 

disputes” with “[PCSO] and other Sheriff Departments” and argues 

broadly that “these issues continually arise in Arizona,” it has failed

to identify any other properties it owns or intends to purchase in 

Pinal County. Accordingly, there is no support for a conclusion that 

the parties’ underlying dispute is “capable of repetition.” See 

5 Am. Jur. 2d App. Rev. § 602 (mootness doctrine limited to 

situations where same complaining party will be subjected to same 

action again); see also Murphy v. Hunt, 455 U.S. 478, 482-83 (1982)

(“capable of repetition yet evading review” exception requires 

“reasonable expectation . . . that the same controversy will recur 

involving the same complaining party”); Funbus Sys., Inc. v. Cal. Pub.

Utils. Comm’n, 801 F.2d 1120, 1131 (9th Cir. 1986) (exception applies 

where “plaintiff can show that he will again be subject to the same 

injury” not where “other persons may litigate a similar claim”).

¶12 In any event, Kondaur has not demonstrated that these 

issues are likely to evade review if they arise again in the context of 

an eviction action. Issues are typically characterized as “evading 

review” where time constraints prevent an appeal from being heard. 

Compare Cardoso, 230 Ariz. 614, ¶¶ 7-8, 277 P.3d at 814 (declining to 

apply exception where challenged order of protection was effective 

for one year after service); with KPNX Broad. v. Superior Court, 139 
KONDAUR CAPITAL CORP. v. PINAL CO.

Opinion of the Court

9

Ariz. 246, 250, 678 P.2d 431, 435 (1984) (applying exception to case 

involving public release of courtroom sketches based on short 

duration of criminal trials); Phoenix Newspapers, Inc., 200 Ariz. 457, 

¶ 14, 27 P.3d at 817 (claim that newspaper was being denied access 

to records could evade review because of short time between 

creation of records and public release); State v. Sirny, 160 Ariz. 292, 

293, 772 P.2d 1145, 1146 (App. 1989) (considering challenge to statute 

authorizing defendant’s expired three month jail sentence based on

“relative brevity of the sentences imposed under the statute”). Here, 

more than a year elapsed between the filing of Kondaur’s action 

against the Whites and their ultimate eviction from the property. 

Had Kondaur moved for preliminary injunctive relief during that 

time, see Rule 65, Ariz. R. Civ. P., these issues likely could have been 

resolved on appeal before they had become moot, see 

§ 12-2101(A)(5)(b) (denial of injunctive relief is appealable order); 

Ariz. Citizens Clean Elections Comm’n v. Brain, 233 Ariz. 280, ¶ 9, 311 

P.3d 1093, 1097 (App. 2013), review granted in part (Ariz. Nov. 26, 

2013). The exception for issues that may evade appellate review is 

therefore inapt.

Disposition

¶13 For all of the foregoing reasons, we decline to consider 

the issues presented by this appeal, which is hereby dismissed as 

moot.