AZ Legal News
Legal News From Around Arizona
From National Law Review, natlawreview.com:
Arizona Case Law – Real Property Conveyances
Larmer v. Estate of Larmer (AZ Court of Appeals – 11-08-2016)
Chauncey Larmer and his wife, Gloria, owned real property as JTWROS. In July 2013, Gloria signed a durable POA authorizing Chauncey to act as her agent if she became incapacitated. The POA granted Chauncey broad powers, including the power to convey Gloria’s real property. In November 2013, Chauncey, on behalf of himself and Gloria, conveyed their real estate to his son, James, reserving a life estate for himself and Gloria. Chauncey acknowledged his execution of the deed before a notary, but instead of affixing her official seal to the deed when she notarized the deed, she used her embossing seal (to crimp the document). Chauncey died in April 2014, and Gloria thereafter sued James and others, seeking to quiet title to the property in her name, alleging that the deed was invalid because the notary failed to notarize it with her official seal. [I assume that the deed was never recorded, but the opinion is silent on that point.]
The Court of Appeals held that an acknowledgment consists of two parts: (i) the grantor acknowledges the conveyance before an official authorized to take acknowledgments; and (ii) the official certifies the grantor’s acknowledgment. While the notary failed to use her official seal on the deed, the deed still met the “duly acknowledged” requirement of Arizona law because it complied with the acknowledgment and certification requirements. The deed included the Arizona short-form statutory acknowledgment (“the foregoing instrument was acknowledged before me”), which meets Arizona’s certification requirement.
The Uniform Recognition of Acknowledgments Act (from which Arizona’s notary statutes were taken) does not require a seal when an in-state notary properly takes and certifies an acknowledgment within the state. Therefore, the absence of a seal on a deed in which an Arizona notary takes an acknowledgment and certifies it is not a fatal defect if URAA requirements are otherwise satisfied. Therefore, the Court of Appeals held that Chauncey had duly acknowledged the deed and it was valid.
Lender takeaway. If you are notarizing a document or having one notarized, whether in Arizona or outside of Arizona, have the notary use the ink stamp rather than an embossing seal, as you will otherwise have great difficulty recording it, particularly in a title-insured transaction.
From the National Law Review, natlawreview.com:
Arizona Case Law – Creditor Claims Against Probate Estates
Ader v. Estate of Felger (AZ Court of Appeals – 5-27-2016)
Ader funded the purchase of commercial properties with Felger, who rehabilitated, managed and eventually refinanced or sold them. Felger created separate LLCs for each of the properties; the members of each LLC were Ader and the Felger Family Trust, of which Felger was the trustee. Felger died in November of 2010, and sometime thereafter Ader stopped receiving her monthly interest payments from the properties. In January 2014, Ader filed a lawsuit against the Felger Family Trust, Felger’s widow and Felger’s estate alleging numerous claims, including breach of contract, breach of fiduciary duty and conversion. No personal representative was ever appointed for the Felger estate, and creditors received no notice to present their claims. However, Ader was aware of Felger’s death within a week after Felger died.
The Court of Appeals held that claims against a probate estate that arose before a decedent’s death must generally be presented within two years after the decedent’s death. Because creditors’ claims cannot be presented until a personal representative has been appointed for the estate, the onus is on the creditors to discover whether an obligor’s death has occurred and to initiate probate proceedings if the estate fails to initiate them. Otherwise, if a personal representative is not appointed within two years of the decedent’s death, claims cannot be presented against the estate. The Court of Appeals, therefore, held Ader’s claims against Felger’s estate to be time-barred.
New Criminal Charges for Ex-UA Pharmacy Dean in Rape Case
(From Tucson.com/legal_news)
The University of Arizona’s former pharmacy dean is facing new criminal charges and a civil lawsuit over allegations he brutally raped an unconscious woman at his Foothills home last fall.
Jesse Lyle Bootman, initially charged with sexual assault, sexual abuse and aggravated assault after a grand jury hearing in October, recently was indicted on additional charges of kidnapping and of drugging the alleged victim with a prescription sleep aid.
The new charges came from a second grand jury hearing held in March. Bootman’s defense team maintained the first grand jury wrongly indicted him last fall based on incomplete evidence.
But the second grand jury reaffirmed the three initial charges in addition to the two new ones, Pima County Superior Court records show. Bootman, 65, has pleaded not guilty to all the charges.
He is accused of giving the woman Zolpidem, the generic name for Ambien, a drug commonly prescribed for insomnia, the new indictment says. If convicted, he stands to lose the pharmacist’s license he has held for more than 40 years.
The UA banned Bootman from campus in the wake of criminal charges and removed him as dean of the College of Pharmacy, a position he’d held since 1987. He remains on administrative leave, still collecting his $287,000 dean’s salary while the charges are pending, UA spokesman Chris Sigurdson said.
The alleged victim, a real estate agent in her 40s, told police Bootman invited her to stop by to see his home last fall and fixed her a drink when she arrived.
She said she blacked out soon afterward and woke the next morning bleeding and naked in Bootman’s bed with him naked beside her.
The woman sustained a broken nose and other injuries consistent with a violent assault, authorities said.
A few weeks ago, the woman filed a civil suit against Bootman and two of his former lawyers, Brad Roach and Bobbi Berry.
Roach and Berry held a news conference attacking the woman’s credibility soon after Bootman was initially charged.
They claimed she had “a significant criminal history” and had “financial motivations” for accusing him — statements her lawsuit says are “materially false.”
The woman’s lawsuit seeks unspecified damages for her “serious physical and emotional injuries.” It says she’s had two surgeries as a result of the attack.
Roach and Berry didn’t respond to requests for comment on the lawsuit. Joshua Hamilton, one of Bootman’s new defense attorneys, declined to comment on the civil case or the new criminal charges.
In related developments:
Three different judges have overseen the Bootman case in the six months since he initially was charged. His lawyers have twice requested that presiding judges be removed and replaced. Court records don’t explain the requests, and the lawyers wouldn’t comment.
Two of the three judges have given Bootman wide latitude to travel outside Arizona for business meetings and family visits while he awaits trial, despite objections fro (missing content)
Medical Marijuana Use by Arizona Probationer Cannot Support Violation
From Prison Legal News April, 2016, page 61
The Arizona Supreme Court held on April 7, 2015, that “any probation term that threatens to revoke probation for medical marijuana use that complies with the terms of AMMA [the Arizona Medical Marijuana Act] is unenforceable and illegal under AMMA.”
Before the Court was an appellate ruling that reversed a condition of probation imposing a “no marijuana” restriction. Keenan Reed-Kaliher pleaded guilty to possession of marijuana for sale and attempted possession of a narcotic drug for sale. He received a split sentence of prison and probation, which required him to “obey all laws.”
Following his release from prison, Reed-Kaliher received a registry identification card from the Arizona Department of Health Services that identified him as a “registered qualifying patient” under the AMMA to receive marijuana for chronic pain from a fractured hip.
The Arizona Supreme Court found the AMMA includes an immunity provision that protects marijuana users from being “subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege...,” as long as their use or possession complies with the terms of the law. The Court held that provision does not exclude probationers and that compliance with the AMMA prohibits probation conditions or revocation by state courts for marijuana possession or use under state law.
“The State nonetheless argues that prohibiting one convicted of a drug crime from using marijuana should be permitted because it is a reasonable and necessary condition of probation,” the Court noted. “Our job here, however, is not to determine the appropriateness of the term, but rather to determine its legality. While the State can and should include reasonable and necessary terms of probation, it cannot insert illegal ones.”
The Supreme Court further found it had no obligation to comply with federal law, and held state courts cannot incorporate federal law into a probationer’s terms when state law provides otherwise. Accordingly, the decision of the Court of Appeals was affirmed, striking down the “no marijuana” condition of Reed-Kaliher’s probation. See Reed-Kaliher v. Hoggatt, 37 Ariz. 119, 347 P.3d 136 (Ariz. 2015).