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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                   ANTHONY MERRICK,1 Petitioner/Appellant,

                                           v.

           LAURA ESCAPULE; E. JENSEN; STATE OF ARIZONA,
                       Respondents/Appellees.

                                No. 1 CA-CV 15-0699
                                  FILED 11-8-2016


              Appeal from the Superior Court in Maricopa County
                           No. LC2015-000211-001
                   The Honorable Dawn M. Bergin, Judge

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED


                                  APPEARANCES

Anthony Merrick, San Luis
Petitioner/Appellant

Arizona Attorney General’s Office, Phoenix
By Neil Singh
Counsel for Defendants/Appellees




1       The court, on its own motion, amends the caption for this appeal as
reflected above. The above referenced caption shall be used on all further
documents in this appeal.
                      MERRICK v. ESCAPULE et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge John C. Gemmill2 delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Chief Judge Michael J. Brown
joined.


G E M M I L L, Judge:

¶1             Arizona Department of Corrections (“ADC”) inmate
Anthony Merrick appeals the superior court’s orders (1) dismissing his
petition for special action and (2) declining to award him costs pursuant to
the special action. For the following reasons, we affirm the dismissal of the
special action but vacate the order denying costs, and remand for further
proceedings consistent with this decision.

                             BACKGROUND

¶2             In November 2014, Merrick’s attorney mailed to Merrick two
compact disks (“CDs”). The CDs contained files Merrick needed to prepare
a petition for post-conviction relief. In accordance with ADC policy, ADC
personnel held the CDs in order to inspect them for contraband.3 Due to an
error by ADC staff, the CDs were then placed in a mailroom and remained
“unattended to” for several months.




2      The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

3       Order 902.11 § 1.4.2.1 of the ADC Department Order Manual states
as follows:

      All incoming mail, letters, memoranda, and documents, from
      an inmate’s attorney or from a judge or court, shall be opened
      for inspection purposes in the presence of the inmate. Such
      incoming mail may be scanned in the conducting of an
      inspection for contraband, but shall not be read or censored
      by staff.



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                       MERRICK v. ESCAPULE et al.
                          Decision of the Court

¶3            After filing complaints and grievances with ADC requesting
that the CDs be returned to him, Merrick filed a petition for special action
in Maricopa County Superior Court on May 8, 2015. Merrick’s petition
alleged that ADC failed to comply with department policy by refusing to
release the CDs, thereby violating his right to meaningful access to the
courts.

¶4            After he filed his petition, ADC personnel found and released
the CDs and provided Merrick computer access to view the files they
contained. ADC then filed a motion to dismiss Merrick’s petition for special
action as moot. The superior court agreed and dismissed the special action,
finding “no justiciable controversy that would warrant consideration of
declaratory relief” and that “the request for return of the CDs is moot.”

¶5            Upon dismissal of his special action, Merrick filed an
application for costs in the superior court. On September 29, 2015, ADC
filed a motion to strike Merrick’s statement of costs alleging he was not the
prevailing party and the special action petition had been “rejected by [the]
court.” The superior court entered an order the next morning, September
30, 2015, denying Merrick’s statement of costs and entering final judgment.
The court ruled that Merrick was not the prevailing party in the action and
therefore was not entitled to an award of costs. Merrick timely appeals, and
this court has jurisdiction under Arizona Rules of Procedure for Special
Actions 8(a) and Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1) and -2101(A)(1).

                                 ANALYSIS

I.     Existence of a Justiciable Controversy

¶6            Merrick contends the superior court erred by dismissing his
petition for special action, arguing that disclosure of the CDs did not fully
resolve the issues he presented. We review a superior court’s dismissal of
a special action for an abuse of discretion. Rash v. Town of Mammoth, 233
Ariz. 577, 580, ¶ 4 (App. 2013); see also Files v. Bernal, 200 Ariz. 64, 65, ¶ 2
(App. 2001) (“If the superior court declines jurisdiction of the special action
and does not rule on the merits, we determine only whether the court
abused its discretion in declining jurisdiction.”).

¶7            We discern no abuse of discretion because no justiciable
controversy existed when the State filed its motion to dismiss the special
action. In his petition, the precise relief Merrick requested was an order
directing ADC “to immediately give the legal CDs to [Merrick] and set up
time, space, and equipment he [would] need to view the contents.” Before


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                         MERRICK v. ESCAPULE et al.
                            Decision of the Court

filing its motion to dismiss the special action, ADC released the CDs and
allowed Merrick to use a computer to examine their contents.4

¶8              Merrick contends that release of the CDs was not sufficient to
address his claims because a “declaratory judgment” against ADC was
necessary to provide relief. But Merrick’s petition for special action did not
seek the issuance of a declaratory judgment or allege entitlement to relief
under the uniform declaratory judgments act, adopted in Arizona as A.R.S.
§§ 12-1831 to -1846. More importantly, a declaratory judgment may only
be granted when there is a justiciable issue but it is not appropriate to obtain
a judgment that “merely answers a moot or abstract question.” Ariz. State
Bd. of Dirs. for Junior Colls. v. Phoenix Union High Sch. Dist., 102 Ariz. 69, 73
(1967). Merrick further argues that regardless of mootness, this issue is
capable of repetition and therefore appropriate for a decision on the merits.
See Thomas v. City of Phoenix, 171 Ariz. 69, 74 (App. 1991) (a court “may
decide a moot question or abstract proposition” when the issue is “capable
of repetition yet evading review”). But because he is now in possession of
the CDs, any harm Merrick alleges is not ongoing. ADC has an existing
rule in place to protect an inmate’s rights regarding disclosure of mail and
legal materials, and there is no evidence in this record that ADC does not
intend to comply with the rule in the future.

¶9            We therefore agree with the superior court that no justiciable
controversy existed when ADC filed its motion to dismiss. Moreover, the
superior court has broad discretion in deciding whether to exercise
jurisdiction in a special action proceeding and no abuse of discretion
occurred here. For these reasons, we affirm the superior court’s dismissal
of Merrick’s petition for special action as moot.

II.    Denial of Costs

¶10         Merrick also argues the court erred when it declined to award
him costs. Generally, costs are awardable to the successful party in a civil
          5



4     Merrick also acknowledges that ADC did not read or censor the
information contained on the CDs, stating in his opening brief: “Appellees
gave the two legal CDs to Appellant without reviewing them as they
claimed they had to do.”

5      ADC argues that Merrick waived this argument by not presenting it
to the superior court. Ordinarily, if a party has had a full opportunity to
present an argument in superior court and fails to do so, we do not consider



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                       MERRICK v. ESCAPULE et al.
                          Decision of the Court

action. A.R.S. § 12-341; see also A.R.S. § 12-346(A) (directing that a statement
of costs be filed by “[t]he party in whose favor judgment is rendered”).
Although we agree with the superior court and ADC that a judgment was
not entered in Merrick’s favor, an exception to the general rule may be
applicable here.

¶11              ADC asserts, and we agree, that Merrick’s action sought to
compel the government to “perform a duty imposed by law, ” and was a
“mandamus-type” action under Arizona’s special action statute. See Jones
v. Paniagua, 221 Ariz. 441, 448, ¶¶ 27-28 (App. 2009). A request for costs
may be awarded under A.R.S. § 12-2030 without an order of mandamus
relief, if it is determined that the government took action to deliberately
moot the pending case and Merrick would have obtained mandamus relief
but for ADC’s action. See Tom Mulcaire Contracting, LLC v. City of
Cottonwood, 227 Ariz. 533, 537, ¶¶ 15-16 (App. 2011) (affirming award of
attorney fees even though the prevailing party did not obtain an order
compelling performance of a duty or other affirmative relief).

¶12           In Tom Mulcaire, an unsuccessful contractor filed a mandamus
action challenging the City of Cottonwood’s construction bid process. Id.
at 534, ¶ 2. The city subsequently terminated the contract awarded to the
successful bidder, and decided to self-perform the work. Id. at ¶¶ 3–4.
Although recognizing that A.R.S. § 12–2030 requires mandamus relief to
prevail, this court considered that our supreme court has stated that
mandamus relief implicates equitable principles, including the maxim that
“equity will not permit a wrong to be without a remedy.” Id. at 537, ¶ 14
(citing Sanders v. Folsom, 104 Ariz. 283, 289 (1969)). Consequently, this court
determined that, but for the city’s actions, the contractor would have
prevailed and equity would not allow the city to moot the contractor’s claim
and deprive it of fees. Id. at ¶ 15 (citing Loiselle v. Cosas Mgmt. Grp., LLC,
224 Ariz. 207, 210, ¶ 8 (App. 2010); Richardson v. City of Rutland, 164 Vt. 422,
427, 671 A.2d 1245, 1249 (1995)).



the argument on appeal. Schoenfelder v. Ariz. Bank, 165 Ariz. 79, 88 (1990).
But we decline to apply waiver in this instance because Merrick did not
have time to respond to ADC’s motion to strike the statement of costs. We
recognize that the superior court may have drafted its order denying the
statement of costs without having yet received ADC’s motion to strike, and
the court’s ruling on September 30, 2015, is deemed to have denied ADC’s
motion to strike. In light of the sequence of events in this record, we
conclude that we should address the merits of the costs issue presented by
Merrick.


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                      MERRICK v. ESCAPULE et al.
                         Decision of the Court

¶13           Similarly, the absence of court-ordered mandamus relief in
this case does not necessarily mandate denial of Merrick’s application for
costs. The superior court has discretion to consider awarding costs to
Merrick under A.R.S. § 12-2030 and the associated equitable principles
recognized by our supreme court in Sanders and our court in Tom Mulcaire.
We therefore vacate the superior court’s order denying Merrick an award
of costs and remand for further consideration. On remand, the superior
court should consider Merrick’s application for costs pursuant to A.R.S. §
12-2030 and the Tom Mulcaire opinion, and determine whether the superior
court would have ruled in Merrick’s favor regarding disclosure of the CDs
and whether the State acted intentionally to moot the case and thereby
deprive Merrick of relief from incurred costs.

                               CONCLUSION

¶14           Based on the foregoing, we affirm the superior court’s
dismissal of Merrick’s petition for special action as moot, vacate the court’s
order denying Merrick’s application for costs, and remand for further
proceedings consistent with this decision.




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




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