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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             SWVP-GTIS MR, LLC,
                               Plaintiff/Appellant,

                                         v.

                               PINAL COUNTY,
                               Defendant/Appellee.

                              No. 1 CA-TX 16-0017
                                FILED 8-14-2018


                    Appeal from the Arizona Tax Court
                           No. TX2011-000734
                The Honorable Christopher T. Whitten, Judge

                           VACATED; REMANDED


                                    COUNSEL

Rose Law Group, PC, Scottsdale
By Kelley A. Gorry, Logan V. Elia
Counsel for Plaintiff/Appellant

Helm, Livesay & Worthington, Ltd., Tempe
By Roberta S. Livesay
Co-Counsel for Defendant/Appellee

Pinal County Attorney's Office, Florence
By Cedric I. Hay
Co-Counsel for Defendant/Appellee
                   SWVP-GTIS MR v. PINAL COUNTY
                        Decision of the Court



                      MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.


J O H N S E N, Judge:

¶1          SWVP-GTIS MR, LLC ("Southwest") appeals the tax court's
judgment dismissing its appeal of a property classification made by the
Pinal County Assessor. For the following reasons, we vacate and remand
the judgment.

             FACTS AND PROCEDURAL BACKGROUND

¶2           According to the record, Southwest owns a tract of land near
Florence consisting of about 4,000 acres of rangeland. In January 2012,
Southwest signed a lease with James Brett Marchant allowing Marchant
and his company, Cross Cane, to run cattle on the property. Marchant
began with a herd of about 80 head, intending to run his ranch as a cow-
calf operation, generating income from the sale of calves bred on the
property.

¶3            Through a separate construction company, Marchant made a
series of improvements on the land. He installed large metal drinking
basins and several miles of pipeline running to the property from a
groundwater well (the "Pulte well") on adjacent land owned by a home
builder. Marchant also constructed and repaired fencing that allowed him
to more efficiently rotate his herd on different sections of the land. The
overall fenced area on which he grazed his cattle included nearby land
owned by the State and the Federal Bureau of Land Management. Cross
Cane did not have written leases allowing it to graze its herd on the
government property, but Marchant understood the government had no
objection to his continued use of the property for grazing.

¶4             Southwest applied to the County for an agricultural property
tax classification. After the County denied its application, Southwest filed
a complaint in tax court that eventually encompassed tax years 2013 and
2014.

¶5           Shortly before trial, the tax court granted a motion in limine by
the County that substantially limited the evidence Southwest was allowed


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                     SWVP-GTIS MR v. PINAL COUNTY
                          Decision of the Court

to offer concerning the property's qualification for an agricultural
classification and its value. After the close of Southwest's case at trial, the
court granted the County's motion for a directed verdict, finding that
Southwest had not presented any reliable evidence that the property met
the statutory requirements for an agricultural classification and thus that
Southwest had failed to rebut the statutory presumption in favor of the
County's administrative classification decision. See Ariz. Rev. Stat.
("A.R.S.") § 42-16212(B) (2018).1

¶6           We have jurisdiction over Southwest's timely appeal
pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§
12-120.04(G) (2018), -120.21(A)(1) (2018), -170(C) (2018) and -2101(A)(1)
(2018).

                                 DISCUSSION

A.     Legal Principles.

¶7            Property may be classified as agricultural for purposes of
property taxation through a two-step process. First, as relevant here,
property used for grazing must have "a minimum carrying capacity of forty
animal units and contain[] an economically feasible number of animal
units." A.R.S. § 42-12151(3) (2018). Second, as relevant, the property must
demonstrate "a reasonable expectation of operating profit, exclusive of land
cost, from the agricultural use of the property." A.R.S. § 42-12152(A)(2)
(2018). The tax court ruled that when the landowner leases the subject
property to a rancher, the property's carrying capacity and profitability for
purposes of an agricultural tax classification are determined based on the
rancher's use of the property. Neither party contests this ruling on appeal.

¶8             When a landowner challenges a denial of a property
classification request, the "classification as approved by the appropriate
state or county authority is presumed to be correct and lawful." A.R.S. § 42-
16212(B). "This presumption is one of fact, however, and is overcome when
'evidence contradicting the presumption is received and the trial court is
bound to follow the usual rules of evidence in reaching the ultimate
conclusion of fact.'" Dep't of Prop. Valuation v. Trico Elec. Coop., Inc., 113 Ariz.
68, 70 (1976) (quoting Graham County v. Graham County Elec. Coop., Inc., 109
Ariz. 468, 470 (1973)) (statute later renumbered). "It is, of course, necessary
that competent evidence be presented" for the proponent to overcome the


1     Absent material revision after the relevant date, we cite a statute's
current version.


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                   SWVP-GTIS MR v. PINAL COUNTY
                        Decision of the Court

presumption. Maricopa County v. Sperry Rand Corp., 112 Ariz. 579, 581
(1976).

B.     Discovery Preceding the Motion in Limine.

¶9             Southwest served an initial disclosure statement in 2013
stating that Cross Cane had constructed four miles of pipeline "to connect
to a local well to provide an additional water source" for cattle on the
property. Southwest also served an initial expert report, dated August 22,
2013, stating that although there was "no permanent water source on the
property," Cross Cane "pipes water from another property to this property
for livestock use." Otherwise, little substantive discovery was taken until
after the tax court ruled in May 2015 that the property's classification would
depend on the profitability of Cross Cane's operation rather than on what
Cross Cane paid Southwest in rent.

¶10            When it made that ruling, the court set a discovery cutoff of
September 8, 2015. The County then served discovery requests asking,
among other things, that Southwest identify "the type and location of all
water sources including water hauled to the Subject Property." The County
also asked Southwest to describe each water source and specify the depth
and capacity of any wells used for agricultural purposes and provide
"certificates of well registrations from the Arizona Department of Water
Resources," as well as "any annual reports to the Arizona Department of
Water Resources . . . disclosing amount of groundwater withdrawn or
surface water used."

¶11          When Southwest responded to the County's discovery
requests on July 30, 2015, it stated that the property was served by a "nine
mile long water line to provide water to water tanks in each pasture."
Notwithstanding its disclosure in 2013 of a "local well" that served the
property, however, Southwest's responses contained no information or
documents about the Pulte well or any other well serving the property.
Southwest disclosed several well registration certificates, but none of them
was relevant to the property or to Cross Cane's grazing operations on the
property.

¶12           The County deposed Southwest's valuation expert on October
23, 2015, but he was unable to provide any specifics about the property's
water sources. The County set Marchant's deposition for January 14, 2016,
and as that date approached, the County reiterated its requests for
information about the property's water sources. By email dated December
10, 2015, the County demanded to know "the source of the water for the



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                   SWVP-GTIS MR v. PINAL COUNTY
                        Decision of the Court

cattle," and stated, "Please ask your client to supply the details so we can
continue to prepare for Mr. Marchant's deposition." Four days later,
Southwest's lawyer forwarded a response from Marchant that referenced
"an irrigation well" that served the property. On January 12, 2016,
Southwest emailed the County with information from Marchant about the
location of the Pulte well. The County responded by email later that same
day, stating it needed more precise information because there were eight
wells located on the cited off-site parcel. The County demanded the
registration number for the well that supplied the property and copies of
receipts or invoices reflecting Marchant's payment for the water. The next
day, January 13, Southwest emailed the County the registration number of
the Pulte well and relayed Marchant's statement that he had no written
agreement for use of the well. It also provided the County with a hand-
drawn map showing the location of the well.

¶13           At Marchant's deposition on January 14, the County
examined him at length about the Pulte well, its size, the size of the pump,
and the arrangement he had with the owner of the well to pump from the
well. Eight days later, Southwest forwarded to the County digital images
of photographs Marchant had taken that week at the well location, which
Southwest stated matched the location of the referenced-numbered well in
the records of the Arizona Department of Water Resources. Southwest also
provided the County with a verified statement identifying the Pulte well by
registry number.

¶14           On February 26, 2016, the County served a supplemental
disclosure statement in which it asserted that Cross Cane had no legal right
to use water from the Pulte well to graze cattle. From that, the County
asserted that Southwest could not show that Cross Cane could sustain a
profitable grazing operation on the property because Cross Cane had no
"legal water source" for its grazing. The County also asserted that Cross
Cane's cattle-grazing operation "depends on an illegal use of property
belonging to the United States Bureau of Land Management and the State
of Arizona."

C.    The Motion and Its Consequences.

¶15          On March 9, 2016, roughly two months before trial was to
begin, the County moved in limine to preclude certain testimony by
Southwest's valuation expert. The County argued the expert's opinion
assumed that Cross Cane would be able to continue to draw water from the
Pulte well and would be able to continue to use the government land for
grazing. The County asserted that Southwest had not identified the Pulte


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                   SWVP-GTIS MR v. PINAL COUNTY
                        Decision of the Court

well in response to discovery requests and did not provide information
about the well until Marchant's deposition and in the days thereafter. The
County also contended that it was not until Marchant's deposition that it
learned that Cross Cane's grazing operation on the property used the
government land.

¶16          The County argued the court should sanction Southwest for
its untimely disclosure and incomplete and tardy discovery responses
under Arizona Rule of Civil Procedure 37 by precluding any expert
testimony at trial of the value of the property or the profitability of Cross
Cane's grazing operation that presumed continued use of the Pulte well as
a water source and continued use of the government grazing rights. Over
Southwest's opposition and after hearing oral argument, the tax court
granted the motion.2

¶17           At trial, consistent with its decision on the County's motion,
the court did not allow Marchant or Southwest's expert witness to take into
account the Pulte well or the government grazing land when testifying
about whether the property afforded Cross Cane a reasonable expectation
of operating profit. In the absence of such testimony, Southwest's challenge
to the tax classification failed. As the court explained in granting the
County's motion for directed verdict:

      For each of the two tax years in question, in reality, Cross Cane
      grazed hundreds of cattle on the subject property in the first
      four months of each year, and less in other months, and might
      have had a reasonable expectation of operating profit. And,
      in reality, the carrying capacity of the land might have
      exceed[ed] forty animal units. Because of the discovery
      sanctions, however, the actual expected profitability and the
      actual animal unit carrying capacity were not germane; those
      projections had to be made based on the fictional state of the
      land without the additional water and without the State or
      BLM lands.



2      In the alternative, the County's motion argued that Arizona
groundwater law did not permit Cross Cane to draw water from the Pulte
well. The County argued that because Cross Cane therefore had no legal
source of water, Southwest could not show that Cross Cane's grazing
operation had a reasonable expectation of profitability. The tax court did
not rule on that issue. In the absence of a decision by the tax court on the
matter, we decline to address it on appeal.


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                   SWVP-GTIS MR v. PINAL COUNTY
                        Decision of the Court

       [Southwest] offered no reliable evidence, for either tax year,
       regarding whether there would have been a reasonable
       expectation of operating profit or what the carrying capacity
       of the land would have been absent the . . . well water source
       or State and BLM grazing lands which were excluded as a
       discovery sanction.

D.     Rule 37(c) and the Ruling on the Motion in Limine.

¶18           We review the tax court's ruling excluding evidence for
"abuse of discretion or legal error and prejudice." Zimmerman v. Shakman,
204 Ariz. 231, 235, ¶ 10 (App. 2003). We review de novo the interpretation
of court rules. State v. Salazar-Mercado, 234 Ariz. 590, 592, ¶ 4 (2014). See
also McMurty v. Weatherford Hotel, Inc., 231 Ariz. 244, 258, ¶ 44 (App. 2013).
"[A] court abuses its discretion where the record fails to provide substantial
support for its decision or the court commits an error of law in reaching the
decision." Files v. Bernal, 200 Ariz. 64, 65-66, ¶ 2 (App. 2001). When the
court finds one party has abused discovery or disclosure obligations, the
sanctions imposed "must be appropriate to the circumstances and must be
preceded by due process." Roberts v. City of Phoenix, 225 Ariz. 112, 119-20
(App. 2010).

¶19           In 2016, when the tax court ruled on the County's motion in
limine, Rule 37(c)(1) provided as follows:

       A party who fails who fails to timely disclose information
       required by Rule 26.1 shall not, unless such failure is
       harmless, be permitted to use as evidence at trial . . . the
       information . . . not disclosed, except by leave of court for
       good cause shown. A party or attorney who makes a
       disclosure pursuant to Rule 26.1 that the party or attorney
       knew or should have known was inaccurate or incomplete
       and thereby causes an opposing party to engage in
       investigation or discovery, shall be ordered by the court to
       reimburse the opposing party for the cost, including
       attorney's fees of such investigation or discovery. In addition
       to or in lieu of these sanctions, the court on motion of a party
       or on the court's own motion, and after affording an
       opportunity to be heard, may impose other appropriate
       sanctions.

¶20           Southwest did not disclose the Pulte well in its July 2015
responses to the County's discovery requests seeking detailed information



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                   SWVP-GTIS MR v. PINAL COUNTY
                        Decision of the Court

about the property's sources of water. Nor did it disclose the particulars of
the well and the additional grazing land before the discovery cutoff in
September 2015. The County's motion in limine argued that, under Rule
37(c), Southwest's failure to timely disclose the Pulte well and the
additional grazing land precluded Southwest from using that evidence at
trial. The version of Rule 37(c)(1) in effect at the time, however, allowed
preclusion of evidence a party failed to disclose evidence "unless such
failure is harmless." Under that rule, therefore, the County's motion
required the tax court to consider whether Southwest's disclosure
violations were "harmless."

¶21            The County's motion did not assert that Southwest's untimely
disclosure of the Pulte well or the additional grazing land caused the
County any harm or prejudice whatsoever. The County had stipulated
with Southwest to take depositions beyond the discovery cutoff, and, as
noted, the County did not depose Marchant until January 14, 2016. And the
record makes plain that although Southwest did not disclose specifics about
the Pulte well until just before Marchant's deposition, the untimely
disclosure did not impair the County's defense of the property's tax
classification. On this record, the County can hardly claim it was
"ambushed" by the untimely disclosure and late discovery responses. The
County was able to and did examine Marchant in detail during his
deposition about the Pulte well and used the well registration number to
gather associated information from the Department of Water Resources.
Within six weeks after the deposition, the County had marshalled the facts
about the well and the grazing rights and served a detailed supplemental
disclosure statement outlining its contention that Southwest could not
show that Cross Cane was legally entitled to draw water from the well for
its cattle and was not entitled to use the associated government grazing
land. Further, as noted, in its motion in limine, the County argued at length
and in considerable detail that Arizona groundwater law did not permit
Cross Cane to use water from the Pulte well for grazing purposes.

¶22            Although it cited no prejudice in its motion in limine, the
County argues on appeal that if the tax court had denied that motion, the
County would have been prejudiced because it would not have had time
before trial "to engage its own expert in a new analysis of newly disclosed
facts." But the County did not need to engage in any new analysis of the
legality of the Pulte well. As noted, it was able to and did mount a full-scale
attack on the legality of Cross Cane's use of the Pulte well in its motion in
limine.




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                   SWVP-GTIS MR v. PINAL COUNTY
                        Decision of the Court

¶23           Instead, the prejudice the County cites on appeal would have
arisen only if the tax court had granted the County's motion but then
allowed Southwest to offer previously undisclosed evidence of water
sources other than the Pulte well. Indeed, Southwest argued in response to
the County's motion that even if Cross Cane could not use the Pulte well, it
could use other water sources, including a stock pond. On appeal, the
County argues that it would have been prejudiced if the court had allowed
Southwest to argue that Cross Cane did not need the Pulte well or the other
grazing land to prove the value of the property: "Even if [Southwest] were
to suddenly disclose another water source, there was no time for the county
to investigate its legality . . . , its sufficiency to meet the needs of the
statutory minimum number of animal units . . . or any other issues that
proper disclosure would have allowed."

¶24           The County's contention is misplaced. As Southwest points
out, the inquiry under Rule 37(c) was whether the late disclosure of the
Pulte well and the additional grazing rights harmed the County – not
hypothetically whether the County would have been harmed if the tax
court had allowed Southwest to offer still other purportedly new evidence
concerning stock ponds and irrigation rights. The County argues on appeal
it was prejudiced by having to review groundwater certificates that
Southwest produced in discovery that turned out to be irrelevant to the
property at issue.3 But the County makes no showing that it would have
been harmed at trial by Southwest's use of evidence of the Pulte well and
the government grazing land.4

¶25            "Delay, standing alone, does not necessarily establish
prejudice. Every late disclosure will involve some delay, but the relevant
question must be whether it is harmful to the opposing party or to the
justice system." Allstate Ins. Co. v. O'Toole, 182 Ariz. 284, 288 (1995).
"[P]rejudice is not presumed but must appear from the record." Creach v.
Angulo, 186 Ariz. 548, 550 (App. 1996). Further, "as a general proposition,
sanctions for failure to obey a trial court's orders should be limited to




3      Although Rule 37(c)(1) allowed the court in some circumstances to
impose sanctions when a disclosure violation caused the opposing party to
incur expense, the record does not show that the County asked the tax court
to impose any remedy other than preclusion.

4     Due to conflicts with the court's calendar, trial in the matter
ultimately was continued from May to September 2016.


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                   SWVP-GTIS MR v. PINAL COUNTY
                        Decision of the Court

achieve their desired result." Green v. Lisa Frank, Inc., 221 Ariz. 138, 153, ¶
40 (App. 2009).

¶26           In the absence of any showing by the County that Southwest's
disclosure violations caused the County harm, the tax court erred in
granting the County's motion to preclude evidence of the Pulte well and the
government grazing land as a discovery sanction under Rule 37(c).

                               CONCLUSION

¶27          Because the County did not demonstrate that it was
prejudiced by Southwest's untimely disclosure of the Pulte well and the
government grazing rights, the tax court erred by sanctioning Southwest
by precluding it from relying on that evidence at trial. Accordingly, we
vacate the tax court's judgment dismissing Southwest's First Amended
Complaint, and remand for a new trial.




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




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