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Pima County v. Hogan11/30/1999
distinction between condemnation cases and other civil cases that would justify treating them differently. In condemnation cases, a landowner who had no prior relationship with the condemning authority is indeed unwillingly dragged into litigation against a powerful adversary. This situation is, however, no different than an unwilling plaintiff who is struck by a vehicle owned and operated by a governmental agency. In the motor vehicle accident case, the adversaries had no prior relationship, there is often an inequality of resources between the parties, and a jury trial is constitutionally available. The rules of procedure have balanced the public policy considerations in favor of reducing unnecessary litigation by providing for a sanction under Rule 68 and an assessment of costs under § 12-341. I see no principled distinction between the personal injury plaintiff who is unfortunately in the path of a government truck and the landowner whose property is unfortunately in the path of a government road.
In this day of litigiousness and over-crowded courts, needless litigation should be avoided and there should be a penalty for unjustifiably pursuing or defending an action. Public policy is best served by treating condemnation cases the same as any other case for purposes of applying Rule 68. If a landowner refuses an offer of just compensation without further litigation, and fails to receive a greater judgment after trial, Rule 68 sanctions should be applied. In Mori, Division One of this court opined, in dicta, based on its review of California law, that a court could award sanctions against an obstructive landowner pursuant to A.R.S. §§ 12-341.01(C) or 12-349. I would hold today that, when appropriate, a court is required to award sanctions against an obstructive landowner under Rule 68.
Finally, when our supreme court has adopted a rule which on its face applies to all actions, I believe courts should apply it until the supreme court changes it, as has occurred in Alaska.
For all of these reasons, I Dissent.
JOSEPH W. HOWARD, Judge
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