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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            DOLUN CENITE, et al.,
                             Plaintiffs/Appellants,

                                         v.

                           CARTER BURGESS, et al.,
                             Defendants/Appellees.

                              No. 1 CA-CV 17-0524
                                FILED 9-27-2018


            Appeal from the Superior Court in Maricopa County
                           No. CV2015-010297
                The Honorable Sherry K. Stephens, Judge
                 The Honorable Joshua D. Rogers, Judge

                                   AFFIRMED


                                    COUNSEL

Treon & Aguirre, PLLC, Phoenix
By Richard T. Treon
Counsel for Plaintiffs/Appellants
Wood, Smith, Henning & Berman, LLP, Phoenix
By Jodi L. Mullis
Counsel for Defendant/Appellee Carter Burgess

Clark Hill, PLC, Scottsdale
By P. Douglas Folk, William H. Breier
Counsel for Defendants/Appellees DEI/Kinsey

Schneider & Onofry, PC, Phoenix
By Jon D. Schneider, ReNae A. Nachman, Luane Rosen
Counsel for Defendant/Appellee Tramonto

Weiss Brown, PLLC, Scottsdale
By Brian J. Schulman, Nedda R. Gales
Counsel for Defendant/Appellee Sonoran

Goering, Roberts, Rubin Brogna, Enos & Treadwell-Ruben, PC, Tucson
By William L. Rubin
Counsel for Defendant/Appellee Hoppe



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Randall M. Howe joined.


J O H N S E N, Judge:

¶1            Dolun Cenite appeals entry of summary judgment against
him on his claims alleging negligent design of a street intersection. Cenite,
who was severely injured in a collision at the intersection, first sued the City
of Phoenix, alleging the intersection was negligently designed. After the
jury found against him in that case, Cenite commenced this case against the
designers of the intersection. The superior court granted the defendants'
motion for summary judgment, concluding that issue preclusion barred
Cenite from relitigating the negligent-design issue against these
defendants. For the reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           Cenite was injured when his father, who was driving a car in
which Cenite was a passenger, was unable to avoid a car making a left turn


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                CENITE, et al. v. CARTER BURGESS, et al.
                         Decision of the Court

in front of them. Cenite's mother sued the City on his behalf, alleging it
negligently designed the intersection at which the crash occurred. In that
lawsuit, the City asserted an affirmative defense under Arizona Revised
Statutes ("A.R.S.") section 12-820.03(A) (2018).1 That statute provides:

      A public entity or a public employee is not liable for an injury
      arising out of a plan or design for construction or maintenance
      of or improvement to transportation facilities, including
      highways, roads, streets, bridges or rights-of-way, if the plan
      or design is prepared in conformance with generally accepted
      engineering or design standards in effect at the time of the
      preparation of the plan or design and the public entity or
      public employee gives to the public a reasonably adequate
      warning of any unreasonably dangerous hazards which
      would allow the public to take suitable precautions.

¶3           In addressing fault and negligence at trial, the superior court
began by instructing the jury:

      Fault is negligence that was a cause of the collision.

      Negligence is the failure to use reasonable care. Negligence
      may consist of action or inaction. Negligence is the failure to
      act as a reasonably careful person would act under the
      circumstances.

When the court addressed Cenite's claim against the City, however, it gave
an instruction that effectively imposed on Cenite the burden of disproving
the City's affirmative defense:

      Plaintiff must prove:

      1. The intersection was unreasonably dangerous because the
      plan or design of the left turn bays at the intersection was not




1      Absent material revision after the relevant date, we cite the current
version of a statute or rule.



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                 CENITE, et al. v. CARTER BURGESS, et al.
                          Decision of the Court

       in conformance with generally accepted engineering or
       design standards at the time of the preparation of the plan or
       design . . . . [2]

¶4           The jury found in favor of the City by a general verdict, and
we affirmed the judgment. Cenite v. City of Phoenix ("Cenite I"), 1 CA-CV 15-
0136, 2016 WL 3463307, at *8, ¶ 41 (App. June 21, 2016) (mem. decision).

¶5             A year after the verdict in the first case, Cenite filed this case,
alleging that each of the defendants was involved in negligently designing
the intersection. The defendants moved to dismiss, arguing the jury in the
prior case found that the intersection was not negligently designed and that
finding precluded Cenite from relitigating the same issue in this case.

¶6            Pursuant to Arizona Rule of Civil Procedure 12(d), the
superior court converted the motion to dismiss to a motion for summary
judgment. The court then granted summary judgment to the defendants,
ruling that the issue litigated in the first case was identical to the issue
presented in the second. The court reasoned as follows:

       [T]he jury [in the prior case] necessarily had to conclude that
       the "plan or design of the left turn bays at the intersection was
       . . . in conformance with generally accepted engineering or
       design standards at the time of the preparation of the plan or
       design." If the "plan or design of the left turn bays at the
       intersection was . . . in conformance with generally accepted
       engineering or design standards at the time of the preparation
       of the plan or design[,]" the design was not and could not be
       negligent.

¶7            Cenite timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1) (2018) and -2101(A)(1) (2018).




2      Cenite contends this jury instruction improperly shifted to him a
burden to negate Phoenix's affirmative defense under § 12-820.03(A) and
further contends that the instruction misstated negligence law through its
use of the words "unreasonably dangerous." He did not raise those issues
in his appeal from the judgment in favor of the City, and the propriety of
the instruction is not before us in this appeal.


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                 CENITE, et al. v. CARTER BURGESS, et al.
                          Decision of the Court

                                DISCUSSION

¶8            Entry of summary judgment is appropriate only if "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). "We review a grant of
summary judgment de novo, viewing the facts and inferences drawn
therefrom in the light most favorable to the party against [whom] judgment
was entered." Earle Invs., LLC v. S. Desert Med. Ctr. Partners, 242 Ariz. 252,
255, ¶ 13 (App. 2017). If no dispute of fact exists, we review de novo whether
the superior court correctly applied the substantive law to those facts. See
Qwest Corp. v. City of Chandler, 222 Ariz. 474, 477, ¶ 8 (App. 2009).

¶9             The doctrine of collateral estoppel, or issue preclusion, bars a
plaintiff from relitigating an issue when (1) the plaintiff had a full
opportunity to litigate the issue in a prior suit and actually litigated the
issue; (2) the court in the prior suit entered final judgment; and (3)
resolution of the issue was essential to that judgment. See Chaney Bldg. Co.
v. City of Tucson, 148 Ariz. 571, 573 (1986). Issue preclusion, however, "does
not apply when the issue is not identical to the one previously litigated." S.
Point Energy Ctr., LLC v. Ariz. Dep't of Revenue, 241 Ariz. 11, 14, ¶ 9 (App.
2016).

¶10             As relevant here, the court instructed the jury in the prior case
that it could find for Cenite only if he proved the intersection design did
not conform to "generally accepted engineering or design standards at the
time of the preparation of the plan or design." See § 12-820.03(A). To prevail
against the defendants in this case, Cenite would have to prove, inter alia,
that same contention – that the intersection did not conform to generally
accepted engineering or design standards. See Flagstaff Affordable Hous. Ltd.
v. Design All., Inc., 223 Ariz. 320, 327, ¶ 36 (2010) ("design professionals have
a duty to use ordinary skill, care, and diligence in rendering their
professional services") (quoting Donnelly Const. Co. v. Obert/Hunt/Gilleland,
139 Ariz. 184, 187 (1984)); Nat'l Hous. Ind., Inc. v. E. L. Jones Dev. Co., 118
Ariz. 374, 377 (1978); Rev. Ariz. Jury Instr. (Civil) Fault 1 (5th ed. 2013)
("Negligence is the failure to use reasonable care.").

¶11           Cenite argues the jury in the prior case was asked to decide
whether the intersection was "unreasonably dangerous," not whether the
intersection was negligently designed. He asserts the "unreasonably
dangerous" requirement in the first line of the instruction recited above
imposed on him a burden to prove more than mere negligence. The
instruction in the prior case linked the two concepts, directing the jury to
determine whether the intersection was unreasonably dangerous because its


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                CENITE, et al. v. CARTER BURGESS, et al.
                         Decision of the Court

design did not conform with generally accepted standards. Cenite seems
to say that a jury in the prior case could have found that the intersection did
not conform to generally accepted engineering and design standards but
nevertheless was not unreasonably dangerous. There is no dispute,
however, that the asserted negligence at issue in both cases was a failure to
conform to prevailing standards concerning safety; a failure to comply with
those standards necessarily would result in an intersection that was
unreasonably dangerous.

                               CONCLUSION

¶12           For the foregoing reasons, we affirm the judgment.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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