                   SUPREME COURT OF ARIZONA
                            En Banc


AILEEN H. CHAR LIFE INTEREST,      )   Arizona Supreme Court
629 INVESTMENTS, A HAWAII          )   No. CV-03-0348-PR
PARTNERSHIP, REMAINDER INTEREST;   )
AIMCO PROPERTIES LP;               )   Court of Appeals
AIMCO/BLOSSOMTREE APTS LP;         )   Division One
AL-SAID ANNA F T; ALTA PLACE       )   Nos. 1 CA-TX 02-0003
PROPERTY INC.; ARCADIA VILLA       )        1 CA-TX 02-0013
APTS, LLC; ARIZONA GRANO-PALMS     )
LTD; CAMINO APTS; CINNAMON         )   Maricopa County Superior
PROPERTIES; CON AM REALTY          )   Court
INVESTORS; COOK INLET REGION OF    )   Nos. TX 98-00413
ARIZONA INC; DELCASTELLO IRENE     )        TX 98-00419
TRUST; EQR VILLA MANANA VISTAS     )        TX 98-00422
INC; EQR-WATSON GP; EQUITY         )
RESIDENTIAL PROPERTIES; ERP        )
OPERATING LP; EVANS WITHYCOMBE     )
FINANCE PSHP SUITE A200; EVANS     )
WITHYCOMBE FINANCE PARTNERSHIP     )
LP; EVANS WITHYCOMBE               )
RESIDENTIAL; EVANS WITHYCOMBE      )
RESIDENTIAL LP; FOREST PARK LLC;   )
G & E HOLDINGS INC; GREENWAY       )
PHOENIX ASSOCIATION LTD            )
PARTNERSHIP; HEATHERWOOD           )
INVESTORS LTD PARTNERSHIP;         )
LAURELS SADDLE CLUB LP; MAGELLAN   )
NORTHWOOD INC; MARIPOSA JOINT      )     O P I N I O N
VENTURE; MORARU, PETER &           )
ELIZABETH; MOUNTAIN VIEW           )
CASITAS LP; NHP SUMMER LP;         )
ORCHARD MESA ASSOCIATES LTD        )
PARTNERSHIP; OTC APARTMENTS LP;    )
PARKSIDE; PARKSIDE PARTNERSHIP;    )
PASO ROBLES LLC; PHOENIX           )
COURTYARDS LTD PARTNERSHIP; PINE   )
SPRINGS LLC; PROFESSIONAL          )
PROPERTY INV LTD; SCOTTSDALE       )
PALMS LTD PARTNERSHIP; SMITH       )
MELVIN W JR & MARJORIE L TR;       )
SUNSET SHADOWS INC; SUNSHINE      )
LAND ASSOCIATES LP; THE PHOENIX   )
APTS LLC; THE S DEVELOPMENT       )
COMPANY; THOMSON THOMAS J; TPOC   )
LTD LIABILITY CO; VERDE           )
INVESTMENT INC; W. L. PROPERTIES  )
LLC; WELLSFORD RESIDENTIAL        )
TRUST; YF PARTNERS GREEN LP       )
                                  )
            Plaintiffs-Appellees, )
                                  )
                 v.               )
                                  )
MARICOPA COUNTY, a political      )
subdivision of the State of       )
Arizona,                          )
                                  )
             Defendant-Appellant. )
__________________________________)
                                  )
ANTHEM DUNLAP SQUARE, LLC, a      )
limited liability company,        )
                                  )
              Plaintiff-Appellee, )
                                  )
                 v.               )
                                  )
MARICOPA COUNTY, a political      )
subdivision of the State of       )
Arizona,                          )
                                  )
             Defendant-Appellant. )
__________________________________)
                                  )
CENTURY PROPERTIES FUND XIX;      )
FARNAM COMPANIES INC;             )
FEIGA/CIMMARON LP; PACIFIC        )
CORINTHIAN LIFE INSURANCE;        )
RONALD L. HERRICK TRUSTEE; SANO   )
CORPORATION; WHITE, HOWELL AND    )
HALL, LLC,                        )
                                  )
            Plaintiffs-Appellees, )
                                  )
                 v.               )
                                  )
MARICOPA COUNTY, a political      )


                                   2
subdivision of the State of       )
Arizona,                          )
                                  )
             Defendant-Appellant. )
__________________________________)
                                  )
AILEEN H. CHAR LIFE INTEREST,     )
629 INVESTMENTS, A HAWAII         )
PARTNERSHIP, REMAINDER INTEREST; )
AIMCO PROPERTIES LP;              )
AIMCO/BLOSSOMTREE APTS LP;        )
ALSAID ANNA F T; ALTA PLACE       )
PROPERTY INC; ARCADIA VILLA       )
APTS. LLC; ARIZONA GRANO-PALMS    )
LTD; CAMINO APTS; CINNAMON        )
PROPERTIES; CON AM REALTY         )
INVESTORS; COOK INLET REGION OF   )
ARIZONA INC; DELCASTELLO IRENE    )
TRUST; EQR-WATSON GP; EQUITY      )
RESIDENTIAL PROPERTIES; ERP       )
OPERATING LP; EVANS WITHYCOMBE    )
FINANCE PSHP SUITE A200; EVANS    )
WITHYCOMBE FINANCE PARTNERSHIP    )
L.P.; EVANS WITHYCOMBE            )
RESIDENTIAL; EVANS WITHYCOMBE     )
RESIDENTIAL LP; FOREST PART LLC; )
G & E HOLDINGS INC; GLENWAY       )
PHOENIX ASSOC LED PARTNERSHIP;    )
LEATHERWOOD INVESTORS LED         )
PARTNERSHIP; LAURELS SADDLE CLUB )
LP; MAGELLAN NORTHWOOD, INC;      )
MARIPOSA JOINT VENTURE; MORARU,   )
PETER & ELIZABETH; MOUNTAIN VIEW )
CASITAS LP; NHP SUMMER, L.P.;     )
ORCHARD MESA ASSOCIATED LTD       )
PARTNERSHIP; OTC APARTMENTS LP;   )
PARKSIDE; PARKSIDE PARTNERSHIP;   )
PASO ROBLES LLC; PHOENIX          )
COURTYARDS LTD PARTNERSHIP; PINE )
SPRINGS, LLC; PROFESSIONAL        )
PROPERTY INV LTD; SCOTTSDALE      )
PALMS LTD PARTNERSHIP; SMITH      )
MELVIN W JR & MARJORIE L TR;      )
SUNSET SHADOWS, INC,; SUNSHINE    )
LAND ASSOCIATES LP; THE PHOENIX   )
ARTS LLC; THE S DEVELOPMENT       )
COMPANY; THOMSON THOMAS J; TPOC   )


                                3
LTD LIABILITY CO; VERDE           )
INVESTMENTS, INC,; W. L.          )
PROPERTIES, LLC; WELLSFORD        )
RESIDENTIAL TRUST; YF PARTNERS    )
GREEN LP,                         )
                                  )
       Plaintiffs-Appellants,     )
             Cross-Appellees,     )
                                  )
                 v.               )
                                  )
MARICOPA COUNTY, a political      )
subdivision of the State of       )
Arizona; and the DEPARTMENT OF    )
REVENUE OF THE STATE OF ARIZONA, )
                                  )
        Defendants-Appellees,     )
            Cross-Appellants.     )
                                  )
__________________________________)

                Appeal from the Arizona Tax Court
           Nos. TX 98-00413, TX 98-00419, TX 98-00422
                  The Honorable Jeffrey S. Cates
          Affirmed in Part; Reversed in Part; Remanded


      Memorandum Decision of Court of Appeals, Division One
    1 CA-TX 02-0003, 1 CA-TX 02-0013, Filed September 2, 2003
                             Vacated

Fennemore Craig, P.C.                                     Phoenix
     by   Paul J. Mooney
          Jim L. Wright
     and Paul Moore
Attorneys for Aileen H. Char, et al.

Helm & Kyle, LTD                                            Tempe
     by   Roberta S. Livesay
     and Lisa J. Bowey
Special Counsel for Maricopa County

Terry Goddard, Attorney General                           Phoenix
     by   Frank Boucek, III, Assistant Attorney General
Attorneys for Arizona Department of Revenue
_________________________________________________________________



                                 4
M c G R E G O R, Vice Chief Justice

¶1           We granted review to clarify the elements a taxpayer

must prove to establish discriminatory property tax valuation in

violation of Arizona’s Uniformity Clause.                     Ariz. Const. art. IX,

§ 1.     We exercise jurisdiction pursuant to Article VI, Section

5.3 of the Arizona Constitution, Rule 23 of the Arizona Rules of

Civil Appellate Procedure, and Arizona Revised Statutes (A.R.S.)

§ 12-120.24 (2003).

                                           I.

¶2           A    group   of    property       owners      (the    Taxpayers)      brought

this action against Maricopa County and the Arizona Department

of     Revenue     (ADOR)       to     recover       taxes       allegedly     collected

illegally.         The    Taxpayers      contend       that      the   Maricopa    County

Assessor         valued     their       apartment          properties         (Taxpayers’

properties) in a discriminatory manner and thus violated the

Uniformity       Clause    of    the    Arizona       Constitution,       Article     IX,

Section 1, and the Equal Protection Clause of the United States

Constitution, Amendment XIV, Section 1.                      The Taxpayers sought a

property     tax    refund      under    A.R.S.       §    42-204.C      (Supp.    1997),

repealed     by    1997    Ariz.       Sess.       Laws,   Ch.    150,    §    9   (repeal

effective 1999).1



1
       At the time in question, A.R.S. § 42-204.C stated:


                                               5
¶3         For tax years 1996 and 1997, as in previous years, the

Maricopa     County   Assessor    implemented      a   computer      program

(valuation    program)   to   determine      the   values   of   commercial

properties,     including     multi-family     residential       properties,

located in Maricopa County.2        The valuation program calculated

each property’s value using a computerized cost model.                  The

county assessor, however, programmed the valuation program to

“roll over” or “freeze” the value of certain parcels.                  If a

multi-family residential property owner previously had appealed

the property’s valuation, the valuation program would roll over

that property’s valuation until one of several actions occurred.3


__________________
     [W]ithin   one  year   after  payment   of  the   first
     installment of the tax, an action may be maintained to
     recover any tax illegally collected, and if the tax due
     is determined to be less than the amount paid, the
     excess shall be refunded in the manner provided by this
     title. Interest at the legal rate on the overpayment
     shall be payable from the date of overpayment. For the
     purpose of computing interest under any such judgment,
     if the tax was paid in installments, a pro rata share
     of the total overpayment shall be deemed attributable
     to each installment.

A.R.S. § 42-204.C (Supp. 1997), repealed by 1997 Ariz. Sess.
Laws, Ch. 150, § 9 (repeal effective 1999).
2
     We view the record in the light most favorable to upholding
the tax court’s judgment.     See, e.g., Hutcherson v. City of
Phoenix, 192 Ariz. 51, 53 ¶ 13, 961 P.2d 449, 451 (1998);
McFarlin v. Hall, 127 Ariz. 220, 224, 619 P.2d 729, 733 (1980).
3
     For example, the assessor would revalue the property rather
than roll over its valuation if the assessor revalued the
property’s land, the property owner constructed new improvements

                                    6
The valuation of these roll-over properties did not change from

1996 to 1997.           If the valuation program did not roll over the

value of a multi-family residential parcel, or if the parcel’s

value     was    not    manually              entered    into     the    County’s     computer

system,     the       assessor          retained        the     value    assigned     by   the

valuation program.

¶4              The Taxpayers own sixty-two multi-family residential

parcels in Maricopa County, all among the group of properties

that the assessor valued by applying the cost model used as part

of    the   valuation         program.             The     tax       court,    comparing    the

valuations        for       1996        and     1997,     found      that     the   Taxpayers’

properties’ valuations increased by an average of 37.6 percent,

while the roll-over properties’ valuations remained unchanged.

The tax court then entered judgment in favor of the Taxpayers

and     ordered       the     County          to   refund       to    the     Taxpayers    “the

difference between the 1996 property valuations and the 1997

increased property valuations of their properties.”                                 The County

appealed the tax court’s decision.

¶5              The   court        of    appeals        reversed.       In    its   memorandum

decision, the court relied primarily upon its conclusion that

the tax court “failed to require evidence of disproportionate




__________________
or changed the use of the property, or the assessor manually
changed the property’s value.

                                                   7
valuation with respect to the properties’ full cash value.”4

Aileen H. Char Life Interest v. Maricopa County, 1 CA-TX 02-0003

& 1 CA-TX 02-0013 at ¶ 11 (Ariz. App. Sept. 2, 2003) (mem.

decision).

¶6             The Taxpayers petitioned this court for review.                    We

accepted       review   to   clarify   the   proper    standard    to   apply     in

determining whether unlawful discrimination has occurred under

Arizona’s Uniformity Clause.             We will not set aside the tax

court’s findings unless clearly erroneous.               Ariz. R. Civ. Proc.

52(a).     Whether the tax court applied the proper legal standard,

however, presents a question of law reviewed de novo.                       Transp.

Ins.     Co.    v.   Bruining, 186     Ariz.    224,    226,   921      P.2d     24,

26 (1996).

                                       II.

¶7             The   Arizona   Constitution     requires    that     “all      taxes

shall be uniform upon the same class of property within the

territorial limits of the authority levying the tax.”                          Ariz.


4
     The court of appeals also held that the tax court erred in
allowing the Taxpayers to voluntarily dismiss Parcel 158-02-005.
The court concluded that the dismissal of Parcel 158-02-005 did
not comply with Arizona Rule of Civil Procedure 41(a)(1) because
“the dismissal was entered in the absence of a stipulation
signed by the County and the ADOR, and occurred after the court
had issued findings of fact and conclusions of law.” Aileen H.
Char Life Interest, 1 CA-TX 02-0003 & 1 CA-TX 02-0013, mem. dec.
at ¶ 33; see also Ariz. R. Civ. P. 41(a)(1) (“[A]n action may be
dismissed . . . by order of the court pursuant to a stipulation
of dismissal signed by all parties who have appeared in the



                                        8
Const.    art.   IX,   §   1.    Arizona’s    Uniformity   Clause   provides

greater protection for taxpayers than does the Equal Protection

Clause of the Fourteenth Amendment and is designed “to ensure

‘that each taxpayer’s property bear the just proportion of the

property tax burden.’”          Am. West Airlines, Inc. v. Ariz. Dep’t

of Revenue, 179 Ariz. 528, 530-31, 880 P.2d 1074, 1076-77 (1994)

(quoting Merris v. Ada County, 593 P.2d 394, 398 (Idaho 1979)).

¶8           Four general elements comprise the formula by which

Arizona    measures    a   property    tax:   classification,    valuation,

assessment ratio, and tax rate.            See, e.g., Berge Ford, Inc. v.

Maricopa County, 172 Ariz. 483, 485, 838 P.2d 822, 824 (Tax Ct.

1992).     The first step, classification, involves the exercise of

legislative      power.         Exercising    this   power,   the      Arizona

legislature has established statutory classes of property.                 See

A.R.S. §§ 42-12001 to -12010 (Supp. 2003).             For most property in

Arizona,     a   county    assessor    carries   out    the   second     step,

valuation.       An assessment ratio, dictated by the legislative

classification, is then applied to the valuation.             See A.R.S. §§

42-15001 to -15010 (Supp. 2003).              This result represents the

property’s assessed value.          Finally, the applicable tax rate is

applied to the property’s assessed value to produce the amount

of taxes due.

__________________
action.”).   We agree and adopt this holding of the court of
appeals.

                                       9
¶9             In this case, the Taxpayers’ challenge involves the

second step in the property tax formula, the county assessor’s

valuation of their properties.                 The Taxpayers do not argue that

the assessor valued their properties in excess of full cash

value, placed them in the wrong legislative classification, or

applied a discriminatory tax rate or assessment ratio.                           Instead,

the Taxpayers argue that the alleged undervaluation of similarly

situated properties resulted in the Taxpayers being forced to

bear a disproportionate share of the property tax burden.                             We

use the term “discriminatory valuation” to describe this type of

case.

¶10            We defined the elements a taxpayer must prove to make

out a case of discriminatory valuation in McCluskey v. Sparks,

80    Ariz.    15,    19,   291   P.2d    791,     793   (1955).      In    McCluskey,

without       determining       whether    the      particular      facts    presented

amounted       to    discrimination       in      violation    of    the    Uniformity

Clause,       we    concluded     that    the     “[d]eliberate      and    systematic

undervaluation of [a taxpayer’s] property at a figure greatly in

excess of the undervaluation of other like properties amounts to

a    violation      of   the   Arizona    [C]onstitution.”           Id.     To     prove

discriminatory valuation, then, a taxpayer must establish (1)

that the taxing officials engaged in deliberate and systematic

conduct       and     (2)      that   such        conduct     resulted      in     “great

inequality,” a finding that requires the court to define the


                                             10
appropriate     class         of   property      for     evaluating       the      claim       of

discriminatory           valuation         and         then      to       find          greatly

disproportionate tax treatment within the defined class.

¶11          The County asserts that the Taxpayers must prove each

element of their prima facie case beyond a reasonable doubt.

The authority upon which the County relies for that proposition,

however,   refers        to    challenges     to      the     constitutionality           of   a

statute.      See,       e.g.,     Magellan      S.    Mountain        Ltd.   v.    Maricopa

County, 192 Ariz. 499, 968 P.2d 103 (App. 1998) (holding that

statute,     which       allowed     revaluation          of     real    property        after

January 1 of the valuation year, did not violate the federal

Equal Protection Clause or the Uniformity Clause); Tucson Elec.

Power Co. v. Apache County, 185 Ariz. 5, 912 P.2d 9 (App. 1995)

(holding that provision of tax statute taxing mining and utility

properties    at     a   higher     rate    than       other     properties        to    be    an

unconstitutional         special     law).         This       matter     involves        not    a

challenge to the constitutionality of a statute, but a claim

that the County imposed a discriminatory tax on the Taxpayers.

We perceive no reason to depart from the usual rule that a

plaintiff must establish each element of a civil action by a

preponderance      of     the      evidence,       and      we    hold    that      standard

applies.




                                            11
                                              A.

¶12         In    a    discriminatory         valuation       case,    “there       must     be

something more than a dispute between the taxpayers and the

taxing     officials      as     to     the        valuation       placed     upon        their

properties.”          McCluskey,       80    Ariz.     at    19,    291     P.2d    at     794.

“Before the court will interfere, it must be clearly shown that

assessments which are unequal are the result of systematic and

intentional conduct and not mere error in judgment.”                            Id. at 20,

291 P.2d at 794.         Moreover, “[t]he mere fact that the assessing

officials believed their conduct was valid does not render it

less vulnerable to attack as discriminatory.”                             Id.       Finally,

deliberate and systematic conduct need not be malicious, only

purposeful.

¶13         The       County    does        not     seriously       dispute        that     the

challenged valuations resulted from systematic and intentional

conduct.     At the time in question, Arizona statutes limited the

circumstances         under    which    an        assessor     could      “roll     over”    a

property valuation:

      In the year subsequent to an appeal, the valuation or
      classification of property shall be the valuation or
      classification that was determined in the prior year at
      the highest level of appeal unless the assessor reviews
      the current facts which apply to a revaluation or a
      change in the classification and determines that an
      adjustment in the valuation or a change in the
      classification is appropriate.




                                              12
A.R.S. § 42-247.A (Supp. 1997), repealed by 1997 Ariz. Sess.

Laws, Ch. 150, § 9 (repeal effective 1999); see also A.R.S. §

42-16002.B (Supp. 2003).             Despite the language of A.R.S. § 42-

247.A, the County developed and implemented a policy to “roll

over” property values on certain apartment parcels for more than

one   year.        To   do   so,    the   assessor    programmed     the    County’s

computer system to roll over the value of certain properties,

while using the cost model to determine the valuation of other

properties.        The evidence at trial indicated that this program

resulted in the County rolling over the values of approximately

fifty percent of the apartment parcels but valuing more than

forty percent of the apartment parcels, including the Taxpayers’

properties, using the cost model.                 The Taxpayers, therefore, met

their burden of establishing that the County intentionally and

systematically used a method of valuing their property different

from that the County used to value the roll-over properties.

¶14           As   we   made    clear     in    McCluskey,     however,    “different

modes   of    assessment       on   the   same    class   of    property    will   not

render the same invalid unless in fact they operate to produce

discriminatory inequality.”               80 Ariz. at 20, 291 P.2d at 794;

see also Sec. Props. v. Ariz. Dep’t of Prop. Valuation, 112

Ariz. 54, 56, 537 P.2d 924, 926 (1975) (“Neither the change in

value of a particular parcel of property nor the total changes

in assessments considered in the aggregate raise any question as


                                           13
to the legality of the assessment.                  There must be more.”).              We

therefore turn to the issue of whether the County’s program

resulted in great inequality.                  To make this determination, we

must first determine the appropriate class for evaluating the

Taxpayers’ claim of discriminatory valuation.

                                              B.

¶15            Arizona’s      Uniformity       Clause    requires       that    taxes    be

uniform upon the same class of property.                      Ariz. Const. art. IX,

§     1.      We    examined     the    meaning     of    the    word    “class,”       for

Uniformity Clause purposes, in Apache County v. Atchison, Topeka

and Santa Fe Railway Co., 106 Ariz. 356, 476 P.2d 657 (1970).

In that case, we stated:

           A class may be the grouping together of persons or
           things for a common purpose or it may be a ranking of
           persons or things possessing the same attributes. . . .
           The word “class,” however, in Article IX, § 1 is
           obviously used in the latter sense, meaning the
           grouping of persons or things possessing common
           attributes.

Id. at 359, 476 P.2d at 660 (citations omitted).                               As Apache

County and our subsequent decisions make clear, the proper class

of    property       to   use    in    evaluating       claims    of    discriminatory

valuation          consists     of    those    similarly        situated       properties

possessing         common     attributes      “based     on     the    nature    of     the

property or on some other real difference in its use, utility,

or productivity.”             Am. West Airlines, Inc., 179 Ariz. at 535,

880 P.2d at 1081.


                                              14
¶16            In this case, the tax court found that the “multi-

family     residential       property        classification     is     a     valid

classification to which an unlawful tax discrimination analysis

can be applied.”         Relying on Hillock v. Bade, 22 Ariz. App. 46,

523 P.2d 97 (1974), aff'd, 111 Ariz. 585, 535 P.2d 1302 (1975),

the County argues that the tax court erred by not defining the

relevant class as all property in Maricopa County.5                 We disagree.

In     Hillock,   a   taxpayer   challenged       Pima   County’s     three-year

cyclical revaluation plan mandated by a statewide revaluation

program.       22 Ariz. App. at 49, 523 P.2d at 100.           In holding that

“the    Pima    County   cyclical   revaluation      plan     did    not   involve

intentional and arbitrary discrimination,” the court explained

that a number of factors were relevant to this determination,


5
     The County also argues that the inclusion of some
“horizontal regimes” and “associated parcels” destroys the
homogeneity of the “multi-family residential” classification.
According to the tax court’s findings, “horizontal regimes” are
individual apartment units with separate parcel numbers.
“Associated parcels,” on the other hand, contain a portion of an
apartment complex, but have separate parcel numbers from the
rest of the complex.     Although the County presented evidence
that the existence of these properties rendered the Taxpayers’
proffered class improper, the tax court, after considering the
County’s arguments, found that “the County failed to show how
the inclusion and exclusion of these properties has any
significant effect on the necessary discrimination analysis.”
We find no error in the tax court’s finding.        In addition,
contrary to the County’s assertions, the tax court’s finding
does not indicate that the tax court improperly shifted the
burden of proof to the County.     Instead, the record is clear
that the tax court placed the burden of proof on the Taxpayers
to make out a prima facie case of discriminatory valuation.


                                        15
including any discrimination that would result if the cyclical

plan were not instituted immediately.      Specifically, the court

examined and rejected the taxpayer’s proposed alternative that

“the taxing authorities should have waited until the completion

of the three year revaluation program so that all new valuations

could be placed on the assessment rolls at the same time.”      Id.

at 53-54, 523 P.2d at 104-05.    The court reasoned:

      [The taxpayer’s] discrimination claim must be viewed in
      a context involving all property situated in the State
      of Arizona subject to ad valorem property taxation. . .
      . Therefore to the extent that any particular type of
      property   is  undervalued,   there   is discrimination
      against all other property within the state, not just
      against property of that particular class within the
      particular county involved.    When these circumstances
      are considered, we do not believe that the taxing
      authorities acted arbitrarily in adopting a cyclical
      three year plan requiring that the new valuations be
      placed on the assessment rolls yearly as developed,
      rather than waiting until all of the new valuations
      could be placed upon the rolls at the same time at the
      completion of the three year program.

Id. at 54, 523 P.2d at 105.

¶17          The language of Hillock, taken out of context, can be

read as supporting the broad proposition the County advances.

Hillock, however, did not mandate the use of geographic criteria

to define a peer group of properties to prove discriminatory

valuation.     Instead, Hillock recognized the distinction between

systematic reappraisal and intentional discrimination.6    Indeed,


6
     At the time the Taxpayers brought suit, A.R.S. § 42-221.B
stated:

                                 16
if the tax court in this case had found the appropriate class to

be all properties in Maricopa County, we doubt that class would

have possessed common attributes “based on the nature of the

property or on some other real difference in its use, utility,

or productivity.”       Am. West Airlines, Inc., 179 Ariz. at 535,

880 P.2d at 1081; Apache County, 106 Ariz. at 359, 476 P.2d at

660.

¶18         As   the   County   points    out,   the   legislature   has   not

exercised its power to create statutory classes of property to

create a separate classification for “multi-family residential”

property.    The “multi-family residential” classification adopted

__________________
     In the case of property that is classified as class
     four, five or six pursuant to § 42-162, the assessor
     may use the same valuation for up to three consecutive
     tax years if the assessor files a specific plan for
     such valuations with the department and the plan is
     implemented uniformly throughout the county.

A.R.S. § 42-221.B (Supp. 1997), repealed by 1997 Ariz. Sess.
Laws, Ch. 150, § 9 (repeal effective 1999); see also A.R.S. §
42-13052 (Supp. 2003).      Class six property, at the time,
encompassed real and personal property “devoted to use as leased
or rented property solely for residential purposes.”    A.R.S. §
42-162.A.6(a) (Supp. 1997), repealed by 1997 Ariz. Sess. Laws,
Ch. 150, § 9 (repeal effective 1999); see also A.R.S. § 42-
12004.A.1 (Supp. 2003) (classifying real and personal property
“used solely as leased or rented property for residential
purposes” as class four property). Had the County followed the
dictates of A.R.S. § 42-221.B in this case, Hillock very well
may have supported reaching a different result.     Arguably, if
the County had filed a three-year valuation plan with the ADOR
and implemented the plan uniformly throughout the county, its
conduct would not have caused intentional and systematic
discrimination.   Because the record contains no evidence that



                                     17
by the tax court, however, comes directly from the coding system

the    County      uses     to    identify      property       within    the     county     for

assessment purposes.

¶19              Arizona’s       statutes      give     the    ADOR    general       oversight

responsibilities for Arizona’s property tax system.                                  A.R.S. §

42-141 (Supp. 1997), repealed by 1997 Ariz. Sess. Laws, Ch. 150,

§ 9 (repeal effective 1999); see also A.R.S. §§ 42-11051 to -

11056       (1999);     A.R.S.      §    42-13002       (1999).         At     the   time    in

question, the relevant statute directed that the county assessor

“determine         through       the     use     of    the     manuals       furnished      and

procedures described by the department the full cash value of

all such property, as of January 1 of the next year.”                                A.R.S. §

42-221.B (Supp. 1997), repealed by 1997 Ariz. Sess. Laws, Ch.

150,    §    9    (repeal    effective         1999);    see    also     A.R.S.      §   11-542

(Supp. 2003) (requiring the county assessor to determine “all

the taxable property in said county at its full cash value”);

A.R.S. § 42-13051.B.2 (1999).                    To carry out this directive, the

County uses the ADOR’s Property Use Code Manual (the Manual),

which contains those codes that the ADOR authorizes for use in

the Arizona property tax system.                      The ADOR intends that county

assessors         and   others         use     the    Manual    for      the    purpose      of




__________________
the County filed such a plan in this case, we do not resolve
this issue.

                                                18
identifying property according to use.                Arizona Department of

Revenue, Property Use Code Manual at Foreword (1994).

¶20          According to the Manual, “[t]he purpose of property

use   codes     is   to    group     and     code     like      properties         for

identification.”        Id. at 1 (emphasis added).              Consistent with

this purpose, the Manual sets out property use codes beginning

with the prefix “03” to identify properties with multi-family

residential property characteristics.               The tax court found that

the Taxpayers’ properties fit within this group and, in fact,

had been so coded by the assessor.                Because the identification

of property as “multi-family residential” accurately reflects

the property’s use, we agree with the tax court that this class

is    appropriate    for     evaluating       the     Taxpayers’          claim    of

discriminatory valuation.         We therefore turn to the tax court’s

determination that the Taxpayers’ properties were subject to a

disproportionate     valuation     when    compared     to    other       properties

within the same class.

                                      C.

¶21          To determine the proper standard for deciding whether

the     government’s       actions         have      produced         a      greatly

disproportionate valuation, we turn again to the language of the

Uniformity    Clause,     which   requires    that     “all    taxes       shall   be

uniform upon the same class of property within the territorial

limits of the authority levying the tax.”              Ariz. Const. art. IX,


                                      19
§ 1.    As this language makes clear, it is the tax paid, not the

numerical values assigned to property, that must be uniform.

Accordingly, to prevail in a valuation discrimination case, a

plaintiff      must    show       tax   treatment      greatly    unequal7    to   that

afforded others in the same class and must do so by reference to

full cash value.            See, e.g., S. Pac. Co. v. Cochise County, 92

Ariz. 395, 377 P.2d 770 (1963); McCluskey, 80 Ariz. at 19, 291

P.2d    at    793.         In   McCluskey,      we   summarized      the   plaintiffs’

argument as follows:

       Plaintiffs’ lawsuit in this case is based upon the
       alleged   proposition   that    plaintiffs   have   been
       discriminated against by valuing other properties at
       below full cash value and, by the use of a method
       different from that used in valuing other properties,
       assessing   or   attempting    to   assess   plaintiffs’
       properties at a greatly disproportionate valuation.

80    Ariz.   at     19,    291    P.2d   at    793.     We   then    concluded    that

“[a]ssessing officials cannot systematically and intentionally

use different rules for measuring the value of property of the

same class if by the use thereof great inequality results.”                         Id.

at 20, 291 P.2d at 794.

¶22           Similarly,          in    Southern       Pacific,   the      challenging

taxpayer alleged that “its property was assessed at not less

7
     The requirement that a taxpayer show greatly unequal
treatment reflects the fact that the “valuation of real
property, whether done for taxation or investment purposes, is
not subject to mathematical certainty” and that the assessment
of taxes, therefore, need not be exactly equal. Bus. Realty of



                                               20
than 89 per cent of full cash value but that other property

subject to assessment by the respective county assessors was

assessed at no more than 20 per cent of full cash value on the

average.”          92 Ariz. at 398, 377 P.2d at 772.                We concluded that

“[i]f       [a    taxpayer]       establishes      that      its   property    is    being

assessed at a higher percentage of full cash value than other

properties, then . . . discrimination . . . will have been

shown.”          Id. at 403, 377 P.2d at 776.

¶23               Although neither McCluskey nor Southern Pacific holds

that    a    taxpayer       can    show   disproportionate         valuation    only   by

reference to full cash value, the structure of Arizona’s tax

system      requires       that    taxpayers      in    a    discriminatory    valuation

case     demonstrate         disproportional           valuation    using     full    cash

value.

¶24               For tax purposes, Arizona values all real property at

full cash value.             A.R.S. § 42-221.B (Supp. 1997), repealed by

1997 Ariz. Sess. Laws, Ch. 150, § 9 (repeal effective 1999); see

also A.R.S. § 42-13051.B (1999).                   Under Arizona statutes, “full

cash     value,”      for     property      tax    purposes,       means    “that    value

determined as prescribed by statute.                        If no statutory method is

prescribed,         full    cash    value   is    synonymous       with    market    value

which means that estimate of value that is derived annually by

__________________
Ariz., Inc. v. Maricopa County, 181 Ariz. 551, 557, 892 P.2d
1340, 1346 (1995).

                                             21
the use of standard appraisal methods and techniques.”                      A.R.S. §

42-201.4 (Supp. 1997), repealed by 1997 Ariz. Sess. Laws, Ch.

150, § 9 (repeal effective 1999); see also A.R.S. § 42-11001.5

(Supp. 2003).

¶25          To establish a greatly disproportionate valuation, a

taxpayer must present evidence from which the court can compare

the valuation of the disfavored properties as a percentage of

their   full   cash   value    and    the       valuation   of    other     similarly

situated properties within the same class as a percentage of

their   full   cash   value.         The    taxpayer     bears     the    burden    of

demonstrating the difference between a property’s valuation and

what the property’s value should have been.8                     Once the taxpayer

presents   such   evidence,     the    court       can   determine       whether   the

taxpayer’s     property   was    valued         “greatly    in     excess    of    the

undervaluation of other like properties.”                   McCluskey, 80 Ariz.

at 19, 291 P.2d at 793.

¶26          In this case, the tax court found that “the improper

roll over of valuation for properties similarly situated to [the

Taxpayers’] properties resulted in a disproportional valuation

of [the Taxpayers’] properties.”                Although the tax court did not

specify the legal standard upon which it based this finding,


8
     “Valuation” refers to the final value placed upon a piece
of property by the taxing authority.  “Full cash value” refers
to the amount required by statute or, otherwise stated, the
amount a valuation should have been.

                                           22
evidence of record, measured against the standard defined above,

supports the trial court’s finding.9                    The assessor valued the

Taxpayers’    properties      by    using      the    cost    approach.10       As   our

statutes instruct, we presume that the County’s determination of

the value of a taxpayer’s property is correct.                    See A.R.S. § 42-

16212.C (Supp. 2003).          Applying that presumption, the assessed

values for the Taxpayers’ properties, taken from the County’s

data, show both what the valuation of the Taxpayers’ properties

should   have   been    and    the    valuation,         in    fact,    given    those

properties.      Because,      as    to     the      Taxpayers’   properties,        the

measures are the same, the Taxpayers’ properties were valued at

one hundred percent of their full cash value.

¶27          As noted above, the County used a different method to

value the roll-over properties and left the 1996 valuation of

these    properties    unchanged.            To      establish    their     claim     of

disproportionate      valuation,      the       Taxpayers      needed     to   present

9
     We will uphold a trial court’s factual findings if they
are supported by competent evidence.     See, e.g., Federoff v.
Pioneer Title & Trust Co. of Ariz., 166 Ariz. 383, 388, 803 P.2d
104, 109 (1990).
10
     The assessor used the cost approach method to determine
“full cash value” in compliance with A.R.S. § 42-11001.5, which
states, in part, that “[i]f no statutory method [for determining
full cash value] is prescribed, full cash value is synonymous
with market value which means the estimate of value that is
derived annually by using standard appraisal methods and
techniques.” The County apparently regarded the cost method as
being a standard appraisal technique and thus in compliance with



                                          23
evidence to support their claim that the roll-over valuations

differed from the full cash value of those properties.                           The

Taxpayers    made    this   showing      by    introducing    as   evidence      the

values derived by applying the cost model to calculate the full

cash value of the improvements to the roll-over properties.                      The

Taxpayers then combined this recalculated improvement value with

the full cash value of the roll-over properties’ land, again as

determined by the County’s own figures.                  Taken together, this

evidence    shows    that   the    roll-over     properties    were     valued    at

sixty-six percent of their full cash value while the Taxpayers’

properties    were    valued      at   one    hundred   percent    of   full   cash

value.      Through this evidence, the Taxpayers established the

elements of their claim of greatly disproportionate valuation.

¶28         The County, of course, was free to disprove any of the

Taxpayers’ contentions when it presented its defense.                      Rather

than do so, the County incorrectly insisted that the Taxpayers,

as part of their case in chief, bore the burden of disproving

all   potential      explanations       for    the   disparity     in   valuation

between the two groups of properties.

¶29         The County’s primary argument involves the Taxpayers’

failure to show the value of the land portion of the roll-over

properties.     As the County points out, the land values for the

__________________
the statutory requirement, and the Taxpayers do not dispute the
use of the cost method to determine full cash value.

                                         24
Taxpayers’         properties      decreased           approximately        twenty-five

percent from 1996 to 1997, while the land values for the roll-

over     properties      apparently     remained        unchanged.          The   County

argues that because the Taxpayers failed to present evidence

indicating        what   the   land   values      of    the   roll-over     properties

would have been had they also been revalued, the tax court could

not determine the extent to which the roll-over properties’ land

values      were     overvalued.        Because         the    Taxpayers      did    not

accurately evaluate both the land and the improvements of the

roll-over properties, the County asserts, the Taxpayers’ proof

violates the unitary theory of valuation.                     Transamerica Dev. Co.

v. County of Maricopa, 107 Ariz. 396, 399, 489 P.2d 33, 36

(1971) (“[P]roperty valuation must be considered one subject,

not    to    be     broken     into    separate         components     of    land    and

improvements. . . .             In other words, if the total valuation

represents the full cash value of the property, it is immaterial

for purposes of appeal that one part is overvalued and the other

is undervalued.”).

¶30          The County could have presented evidence, if such were

available,11        to     rebut      the        Taxpayers’      evidence         showing



11
     Our own review of the evidence of record suggests that,
even if the land values for the roll-over properties were
reduced by twenty-five percent, the greatly disproportionate
valuation found by the trial court remains.     In fact, because
land values account for less than twenty percent of the value of

                                            25
disproportionate valuation.      But the responsibility for doing so

rested with the County as its defense to the showing made by the

Taxpayers.     The tax court, having heard and weighed the evidence

presented     by   the   Taxpayers    and     the   County,     accepted   the

Taxpayers’    proffered    evidence    of     disproportionate      valuation.

The evidence of record provides a sufficient basis to support

the tax court’s finding that the Taxpayers were the subject of a

disproportionate     valuation   in        violation   of     the   Uniformity

Clause.

                                     III.

¶31          The County also challenged the tax court’s choice of

remedy.      The tax court ordered that “the County refund [the

Taxpayers] the difference between the 1996 property valuations

and the 1997 increased property valuations of their properties.”

In so ordering, the tax court relied on                Gosnell Development

Corp. v. Arizona Department of Revenue, 154 Ariz. 539, 744 P.2d

451 (App. 1987), in which the court stated:

      There can be no question that under applicable case
      law, Gosnell has been the victim of unconstitutional
      discrimination.     That unequal treatment must be
      remedied.   In the numerous cases in which a taxpayer
      was adjudged to have been deprived of equal protection
      under the law as a result of unequal tax treatment, the
      taxpayer’s remedy is that which places him on a par
      with the favored taxpayers. . . . “If a ruling is or
      should be prospective only, the past tax can no longer
      be said to be validly imposed even though, by itself,
__________________
both groups of properties, a greatly disproportionate valuation
would likely remain even if the land values are reduced to zero.

                                      26
      it falls squarely under the coverage of some tax-
      imposing [law]. . . .    Conversely, to the extent the
      amount of the tax has already been collected, it
      becomes an ‘overpayment’ which is subject to refund . .
      . .”

Id. at 542, 744 P.2d at 454 (quoting Int’l Bus. Mach. Corp. v.

United   States,   343     F.2d   914,    920    (Ct.    Cl.     1966)    (emphasis

added));    see also     A.R.S. § 42-11005.B (1999) (“If the court

determines that the tax due is less than the amount paid, the

excess shall be refunded . . . .”).

¶32          The court of appeals again reached that conclusion in

Scottsdale Princess Partnership v. Department of Revenue, 191

Ariz. 499, 958 P.2d 15 (App. 1997).                   The Scottsdale Princess

Partnership sought a refund of property taxes paid under protest

for the 1993 and 1994 tax years.                The Partnership argued that

Arizona’s     possessory     interest        taxing     scheme     violated     the

Uniformity    Clause   because     it    impermissibly         created    a   taxing

classification based on the time period at which the property

interest was created12 instead of the “nature, use, utility, or

productivity of the taxed property.”               Id. at 502, 958 P.2d at

18.   After agreeing that the time-based classification violated

Arizona’s    Uniformity     Clause,      the   court,    relying     on    McKesson




12
     The taxing scheme taxed property interests differently,
depending on whether the property interest was created before or
after April 1, 1985. Scottsdale Princess, 191 Ariz. at 502, 958
P.2d at 18.

                                        27
Corp. v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18

(1990), and Gosnell, concluded:

      The appropriate remedy for such discrimination is a
      refund in the amount necessary to make [the non-favored
      taxpayer’s] tax burden uniform with that of the
      unconstitutionally favored taxpayers; that is, a refund
      of the difference between the amount of taxes . . .
      actually paid and the amount it would have paid had it
      qualified for the special treatment . . . .

Scottsdale Princess, 191 Ariz. at 505, 958 P.2d at 21.

¶33        We apply the approach taken in Gosnell and Scottsdale

Princess for a number of reasons.        Most importantly, Arizona law

requires a taxpayer to pay any taxes due before challenging the

validity or amount of the tax.          See A.R.S. § 42-11004 (1999).13

In McKesson, the United States Supreme Court, addressing the

appropriate   remedy   for   a    Florida    liquor   tax   scheme   that

unconstitutionally discriminated against interstate commerce in



13
      A.R.S. § 42-11004 states:

      A person on whom a tax has been imposed or levied under
      any law relating to taxation may not test the validity
      or amount of tax, either as plaintiff or defendant, if
      any of the taxes:
         1. Levied and assessed in previous years against the
      person’s property have not been paid.
         2. That are the subject of the action are not paid
      before becoming delinquent.
         3. Coming due on the property during the pendency of
      the action are not paid before becoming delinquent.

A.R.S. § 42-11004; see also A.R.S. § 42-204.A (Supp. 1997),
repealed by 1997 Ariz. Sess. Laws, Ch. 150, § 9 (repeal
effective 1999).


                                   28
violation of the Commerce Clause,14 concluded that if a state

“relegates [a taxpayer] to a postpayment refund action in which

he can challenge the tax’s legality, the Due Process Clause of

the   Fourteenth         Amendment      obligates       the     State         to    provide

meaningful         backward-looking            relief         to        rectify          any

unconstitutional         deprivation.”          496     U.S.       at    31        (footnote

omitted).     Although McKesson involved a challenge brought under

the federal Commerce Clause, denying any refund to the Taxpayers

could raise constitutional due process issues.                          In addition to

raising due process concerns, denying the Taxpayers a refund

provides limited incentive for taxing authorities to adhere to

the Arizona constitutional mandate that all taxes “be uniform

upon the same class of property within the territorial limits of

the authority levying the tax.”             Ariz. Const. art. IX, § 1.                  The

relatively    minor       costs   associated       with       defending        against    a

taxpayer’s    suit    to    recover     illegally       collected        taxes      provide

only limited incentive for taxing authorities to refrain from

imposing     taxes       questionable      under      the      Uniformity           Clause.

Finally, the County presented no proof that ordering a refund to

the Taxpayers will do great harm to the public coffers.                              See S.

Pac. Co., 92 Ariz. at 406, 377 P.2d at 778.

¶34          For   the     foregoing    reasons,      to    place       the    Taxpayers’

properties    on    par    with   the    favored      roll-over         properties,      we

14
      U.S. Const. art. I, § 8, cl. 3.

                                          29
conclude that the appropriate remedy is that which the tax court

ordered:    The     County     must      refund      the     difference       between    the

amount the Taxpayers paid as property taxes in 1997 and the

amount they would have paid had they been treated in the same

manner as the roll-over properties.                       We remand to the tax court

to determine the appropriate refund for each property.

                                              IV.

¶35          The court of appeals reversed the tax court’s judgment

because     it    concluded       that       the    tax    court   failed      to   require

evidence     of     disproportionate           valuation      with     respect      to   the

properties’ full cash value.                 Consequently, the court of appeals

did   not   reach     a     number      of    other       issues   raised      on   appeal,

including    whether        the    County’s         actions    were    intentional       and

systematic, whether a new trial was necessary on the issue of

alleged new evidence, whether the tax court properly awarded

attorney fees and expert witness fees, and whether the tax court

improperly        defined      the       appropriate         class     or     ordered     an

inappropriate remedy.

¶36          We have concluded that the tax court properly defined

the appropriate class, acted within its discretion in finding

discrimination and that the County’s actions were intentional

and systematic, and ordered a proper remedy.                         We can resolve the

remaining        issues   on      the    record      before    us.          Therefore,    we

consider whether the tax court abused its discretion in denying


                                              30
the County’s motion for new trial and the parties’ arguments

regarding attorney fees and expert witness fees.

                                      A.

¶37         The County appealed the tax court’s judgment in favor

of the Taxpayers.          After identifying “new evidence,” however,

the County moved to suspend the appeal and revest jurisdiction

in the tax court to allow that court to consider a motion for

relief from judgment brought pursuant to Arizona Rule of Civil

Procedure 60(c).         The court of appeals granted the motion and

revested jurisdiction in the tax court.

¶38         The County based its Rule 60(c) motion on its claim

that, after trial, it discovered that 4,002 of the roll-over

properties “were rolled over as the result of a mistake, not as

a matter of intent.”          The County maintained that a mistake in

encoding these properties resulted in the tax court erroneously

finding that the “values for 4,297 properties were rolled over

because the properties had been subject to a September increase

in    value.”     The    County   claimed    that   its   discovery     of     this

mistake warranted Rule 60(c) relief.

¶39         The    tax    court   denied    the   County’s    motion,    stating

first that the County’s claimed “new evidence,” even if true,

would not have changed the court’s decision.              The tax court also

concluded   that    the    County   “did    not   establish    that     with   due

diligence it could not have discovered this evidence in time to


                                      31
move for a new trial.”            We review a trial court’s denial of a

motion for relief from judgment under Rule 60(c) for an abuse of

discretion.        City of Phoenix v. Geyler, 144 Ariz. 323, 328, 697

P.2d 1073, 1078 (1985); De Gryse v. De Gryse, 135 Ariz. 335,

336, 661 P.2d 185, 186 (1983).

¶40          Rule 60(c) allows a court to relieve a party from a

final judgment for, among other reasons, “mistake, inadvertence,

surprise,     or     excusable     neglect,”      on   the    basis      of   “newly

discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 59(d),”15

or for “any other reason justifying relief from the operation of

the judgment.”          Ariz. R. Civ. P. 60(c)(1), (2), (6).                    “The

standard     for    determining     whether      conduct     is    ‘excusable’    is

whether the neglect or inadvertence is such as might be the act

of a reasonably prudent person under the same circumstances.”

Geyler, 144 Ariz. at 331, 697 P.2d at 1081.

¶41          The    record   in    this   case    supports        the   tax   court’s

ruling.     The County possessed the evidence on which it relied in

its   Rule    60(c)     motion     throughout      the     lengthy       litigation,

although     it    apparently     determined     its   purported        significance

only after the court entered judgment.                   As a result, the tax


15
     Rule 59(d) states: “A motion for new trial shall be filed
not later than 15 days after entry of the judgment.” Ariz. R.
Civ. P. 59(d).


                                          32
court     acted     within   its    discretion        in    denying    the   County’s

motion.

                                           B.

¶42           Arizona’s      statutes      permit       the   Taxpayers,     as      the

prevailing parties in an action challenging the assessment or

collection of taxes, to recover reasonable attorney fees and

other expenses.        A.R.S. § 12-348.B (2003).              Using this statutory

authority, a court “may award fees and other expenses to any

party . . . which prevails by an adjudication on the merits in

an action brought by the party against this state or a city,

town or county challenging . . . [t]he assessment or collection

of taxes.”        A.R.S. § 12-348.B.1.                “Fees and other expenses”

“include the reasonable expenses of expert witnesses” along with

“reasonable and necessary attorney fees.”                  A.R.S. § 12-348.I.1.

¶43           Subsection E of the statute, however, provides that

such an award for fees “shall not exceed thirty thousand dollars

for fees incurred at each level of judicial appeal.”                         A.R.S. §

12-348.E.5.          The   tax   court,    based      on   its     interpretation     of

section 12-348, awarded the Taxpayers, as the prevailing party,

$30,000.00     as     attorney     fees.        The   Taxpayers       appealed     their

award, arguing that the plain language of A.R.S. § 12-348.B,

E.3,    and    E.5    contemplates        multiple      awards      when   there     are

multiple plaintiffs and that public policy goals support its

interpretation        of   the   statute,       which      would    permit   each     of


                                           33
multiple plaintiffs represented by the same attorney to recover

up to $30,000.00 for attorney fees.                                 The County contends that

multiple parties represented by the same attorney can receive

only one award, capped at $30,000.00, for each level of appeal.

To    hold     otherwise,        the       County         argues,         would      be    to        grant

plaintiffs a windfall.                The proper interpretation of a statute

is a question of law that we review de novo.                                         See Bilke v.

State, 206 Ariz. 462, 464 ¶ 10, 80 P.3d 269, 271 (2003).

¶44            In    resolving       this           question,        we   look       first      to    the

language of the statute, which supports the argument that each

party     is      entitled      to     an       award          of    attorney        fees,      up     to

$30,000.00.              Id.   at     ¶        11     (“The         court’s      chief       goal      in

interpreting         a    statute         is    ‘to       fulfill         the     intent        of     the

legislature that wrote it.’                         In determining the legislature’s

intent,      we     initially        look       to       the    language        of    the       statute

itself.” (citations omitted)).                       Subsection B expressly refers to

an award of fees to “any party.”                         A.R.S. § 12-348.B.               Similarly,

subsection          E,    in   describing             the       limitations          imposed          upon

attorney       fees,      refers     to        “awards,”            apparently       contemplating

multiple awards.               Nothing in the statute indicates that the

legislature intended the cap on fees to apply to each “action”

brought to challenge the collection of taxes, rather than to

each “party.”            We think that, if the legislature had intended to

limit   the       statute      as    the       County       urges,        it    would     have       used


                                                    34
language making that limitation clear.         Bilke, 206 Ariz. at 465

¶ 15, 80 P.3d at 272.

¶45         Interpreting section 12-348 as applying to each party

rather than to a single action also furthers another important

interest.     We encourage plaintiffs to consolidate their actions,

and thereby further judicial economy, when we allow each party

to recover fees even if the same attorney represents multiple

plaintiffs.     Were we to interpret the statute as the County

urges, we would encourage each of many plaintiffs to file a

separate action with separate representation.          The result not

only would reduce judicial economy but also, because several

attorneys would perform duplicative work, actually could cause

additional, unnecessary expense to the County.16

¶46         Contrary   to   the   Taxpayers’   approach,   however,   the

statute does not envision setting the maximum recoverable fee by

simply multiplying the number of plaintiffs represented by the

same attorney by $30,000.00.       Instead, the fee recovered by each

party must reflect only the effort expended on behalf of that

party.   When the same attorney represents multiple plaintiffs,

therefore, recovery is limited to the incremental increase in

fees related to the representation of each additional plaintiff,


16
     We note that the statute, by capping an attorney’s billable
rate at $175.00 per hour, imposes another restriction that
guards against a party receiving a windfall as attorney fees.
A.R.S. § 12-348.E.3.

                                    35
because only that incremental increase in effort reflects time

spent on behalf of that party.           Thus, if the reasonable attorney

fee    associated     with   establishing    the    claim       of    the    first   of

multiple     plaintiffs      is   $50,000.00,      that    party       can    recover

$30,000.00, but the additional portion of the fee does not “roll

over” to the second plaintiff represented.                  Rather, that party

must establish the additional reasonable attorney fee associated

with the representation of the second party.                     In many actions,

the incremental increase will be relatively small; in others,

such as actions in which establishing the damages of each party

requires complex calculations, the incremental increase may be

relatively large.         In all instances, the prevailing party must

establish the amount of reasonable attorney fees.

¶47          The clear language of A.R.S. § 12-348 permits each

party to receive an award of attorney fees up to $30,000.00 for

each    level    of   appeal.      Therefore,      the    tax    court       erred   in

construing      section   12-348   as   permitting        only    a   single    award

regardless of the number of individual plaintiffs involved in an

action, and we reverse the court’s judgment limiting the fees

award.     Consistent with this opinion, the tax court, on remand,

must determine the appropriate amount of the attorney fee award




                                        36
due the Taxpayers as prevailing parties under the test set out

above.17

¶48         The final issue we address involves the tax court’s

finding that $4,000.00 was “a reasonable sum for Mr. Abrams’

expert witness expenses.”          See A.R.S. § 12-348.B (permitting a

prevailing party to recover the reasonable expenses of expert

witnesses).       The   County   argues      that    the   tax   court   erred    in

finding    that   Mr.   Abrams    qualified     as    an   expert    and   was    of

assistance to the tax court.18          We find no clear error in the tax

court’s findings.

¶49         Mr. Abrams offered testimony explaining the County’s

tax roll data.      The tax court found that Mr. Abrams’ testimony

“assisted   the    trier   of    fact   to    understand     the    evidence     and

determine facts in issue.”         Because the tax court was the trier

of fact, that court could determine better than we whether Mr.

Abrams was of assistance.         Accordingly, we conclude that the tax

court did not abuse its discretion in awarding reasonable expert

witness fees.


17
     The Taxpayers also request this court to award them
reasonable attorney fees incurred before this court pursuant to
A.R.S. § 12-348.B.     We conclude that the Taxpayers, as the
prevailing parties, are entitled to an award of reasonable
attorney fees incurred in this proceeding. See ARCAP 21.
18
     Arizona Rule of Evidence 702 allows “a witness qualified as
an expert by knowledge, skill, experience, training, or
education” to testify in order to “assist the trier of fact to


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                                  IV.

¶50       For   the   foregoing   reasons,   we   vacate   the   court   of

appeals’ memorandum decision, affirm in part and reverse in part

the judgment of the tax court, and remand to the tax court to

determine the appropriate amount of refund and attorney fees.



                           ____________________________________
                           Ruth V. McGregor, Vice Chief Justice

CONCURRING:


__________________________________
Charles E. Jones, Chief Justice


__________________________________
Rebecca White Berch, Justice


__________________________________
Michael D. Ryan, Justice


__________________________________
Andrew D. Hurwitz, Justice




__________________
understand the evidence or to determine a fact in issue.”           Ariz.
R. Evid. 702.

                                   38
