                          NOTICE: NOT FOR PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
              AND MAY BE CITED EXCEPT ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                        JOEL FOX, Petitioner/Appellant,

                                         v.

   MARICOPA COUNTY LAW ENFORCEMENT EMPLOYEE MERIT
  SYSTEM COMMISSION; MARICOPA COUNTY SHERIFF’S OFFICE;
  SHERIFF JOSEPH ARPAIO; INTERIM DEPUTY CHIEF MICHAEL G.
                  OLSON, Respondents/Appellees.

                              No. 1 CA-CV 14-0177
                                FILED 3-3-2015


            Appeal from the Superior Court in Maricopa County
                         No. LC2013-000448-001
                 The Honorable Douglas Gerlach, Judge

                       VACATED AND REMANDED


                                    COUNSEL

Moriarity & Badaruddin, P.L.L.C.
By Shandor S. Badaruddin
Petitioner/Appellant

Joel Fox
Petitioner/Appellant

Maricopa County Attorney’s Office, Phoenix
By Tawn T. Austin
Counsel for Respondents/Appellees Maricopa County Sheriff’s Office, Sheriff
Joseph Arpaio and Deputy Chief Michael G. Olson
                       FOX v. MARICOPA CO et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Diane M. Johnsen joined.


W I N T H R O P, Judge:

¶1             Joel Fox (“Fox”) appeals the superior court’s order granting
the motion to dismiss filed by the Maricopa County Sheriff’s Office
(“MCSO”), Sherriff Joe Arpaio, and Deputy Chief Michael G. Olson
(collectively, “Appellees”). For the following reasons, we vacate the
superior court’s order and remand for proceedings consistent with this
decision.

                FACTS AND PROCEDURAL HISTORY

¶2            MCSO terminated Fox’s employment on October 20, 2011.
Fox appealed his termination to the Maricopa County Law Enforcement
Employee Merit System Commission (“Commission”) in November 2011,
prompting the Commission to conduct a hearing from January to April
2012. The Commission upheld Fox’s termination, which Fox again
appealed. After conducting an additional hearing on September 5, 2012,
the Commission upheld Fox’s termination and entered its final order on
September 7, 2012. On November 1, 2012, Fox filed a petition for special
action in the superior court in accordance with Arizona Revised Statutes
(“A.R.S.”) section 38-1004(A) (2011). Fox’s petition was dismissed without
prejudice on July 16, 2013 for lack of prosecution, failure to follow court
orders, and failure to serve his petition in a timely manner. Fox filed a
motion to reconsider, which the superior court denied in a July 30, 2013
minute entry, stating:

             It is not this Court’s intention to estop Petitioner
             from re-filing this matter, if within the
             applicable statute of limitations. However, if
             Petitioner is now outside the applicable statute
             of limitation period, leave is herein granted to
             Petitioner to re-urge this Petition on that basis.

¶3             Fox then filed a second petition for special action on August
16, 2013, challenging the final order of the Commission. The Appellees filed


                                      2
                        FOX v. MARICOPA CO et al.
                           Decision of the Court

a motion to dismiss, alleging the second petition was untimely and barred
by the equitable doctrine of laches. Fox opposed the motion to dismiss,
arguing the superior court’s language from the July 30 minute entry
contemplate an opportunity to re-file the petition, and the doctrine of laches
did not apply. The superior court heard oral argument on this motion on
January 10, 2014, and ultimately granted Appellees’ motion to dismiss. Fox
timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1)
(2003) and 12-2101(A)(1) (Supp. 2014).

                                  ANALYSIS

¶4            We review a superior court’s ruling on a motion to dismiss for
an abuse of discretion. State v. Villegas, 227 Ariz. 344, 345, ¶ 2, 258 P.3d 162,
163 (App. 2011). To the extent our review may present a question of
statutory interpretation, our review is de novo. Id.

¶5            Fox filed the second petition for special action pursuant to
A.R.S. § 38-1004(A) (2011), which at that time did not impose a time limit
for an individual to seek special action review in the superior court.1
Despite this, the superior court found that Fox’s second petition was
untimely as a matter of law. The superior court explained that the July 30
minute entry did not grant Fox relief from any substantive or procedural
bar to a second petition, including untimeliness in seeking special action
review. In granting the motion to dismiss, the court did not address the
issue of laches.

¶6             When no applicable time limit is established by statute or rule,
only the equitable doctrine of laches bars an appeal on timeliness. State ex
rel. McDougall v. Tvedt, 163 Ariz. 281, 283, 787 P.2d 1077, 1079 (App. 1990);
see also Rash v. Town of Mammoth, 233 Ariz. 577, 581, ¶ 9, 315 P.3d 1234, 1238
(App. 2013) (holding the thirty day time limit to file an appeal under Rule
9 of ARCAP does not apply to special actions filed under A.R.S. § 38-1004).
Because no statute or rule of limitations applies in the instant case, only the
equitable doctrine of laches can act to bar Fox’s petition. The superior court
should have considered whether laches should bar this special action, and
we vacate the order of dismissal and remand for the superior court’s
analysis and application of that doctrine.



1      A.R.S. § 38-1004 has since been amended by 2014 Ariz. Legis. Serv.
Chap. 240 to require that special actions be brought under this statute
within 35 days after a copy of the decision of the Commission is served. See
A.R.S. § 38-1004(A) (Supp. 2014); see also A.R.S. § 12-904(A) (Supp. 2014).


                                       3
                       FOX v. MARICOPA CO et al.
                          Decision of the Court

¶7             Appellees ask this Court to apply the doctrine of laches
notwithstanding the absence of a ruling by the superior court on that issue.
But given the fact-intensive nature of such an inquiry, we decline to do so.
Moreover, we note that the burden is on Appellees to show unreasonable
delay and resulting prejudice, see Flynn v. Rodgers, 172 Ariz. 62, 66, 834 P.2d
148, 152 (1992), and here, Appellees have asserted prejudice but have not
specifically explained how Fox’s delay in seeking special action review has
affected their ability to defend the case. Accordingly, we vacate the order
of dismissal and remand for the superior court’s analysis and application
of the doctrine of laches.

                              CONCLUSION

¶8            For the foregoing reasons, we vacate the superior court’s
order granting the Appellees’ motion to dismiss. When considering this
motion on remand, the superior court should specifically address whether
the equitable doctrine of laches bars Fox’s second request for special action
review.




                                  :ama




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