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Garcia v. Arizona State Department of Revenue11/12/1993
tancy that the court would expand the holding in Telco to afford them relief. We do not agree. Hall clearly holds that a right vests "when it is actually assertable as a legal cause of action or defense or is so substantially relied upon that retroactive divestiture would be manifestly unjust." 149 Ariz. at 140, 717 P.2d at 444. Here, the Taxpayers actively asserted their claim under section 11-506 and in doing so, relied to some degree on the availability of relief under that statute as it existed before it was amended. We realize that at one point in time, the Taxpayers had another remedy by way of appeal. The fact that their own failure to perfect that appeal foreclosed that other remedy to them ought not also foreclose the availability of redress under the terms of section 11-506. We are, after all, dealing with a refund of money which the County and the Department concede ought never have been paid in the first instance. That being the case, it would be manifestly unjust to divest the Taxpayers of their right to relief. Cf. Rio Rico Properties, 172 Ariz. 80, 834 P.2d 166.
Finally, the County and the Department, again relying on Brown Wholesale, argue that the Taxpayers' right to pursue relief under pre-amendment section 11-506 never vested because it was created solely by statute. In view of the clear analysis in Hall, 149 Ariz. 130, 717 P.2d 434, the statement in Brown Wholesale that "an action wholly dependant on the existence of a statute abates if the statute is repealed without a savings clause before judgment is final" is mere dictum and ought not control the result in this case.
Another panel of this court very recently filed an opinion construing A.R.S. section 11-506 and the retroactivity of the amendments to that provision. See S & R Properties v. Maricopa County, 148 Ariz. Adv. Rep. 54 (App. Oct. 5 1993). We agree with that opinion, but have not simply adopted it by reference because we thought it desirable to address the arguments of the parties as they were framed in this case. We note that in S & R Properties, the question of whether the taxpayers had a vested right was an open one because the Department of Revenue had not verified the erroneous assessment in that case. Here, that point is covered by the County Defendant's Response to the Special Action Complaint and is not an issue in the case.
APPELLEES' ARGUMENTS REGARDING LACK OF
JURISDICTION AND RES JUDICATA
As a cross-issue supporting the dismissal of the Taxpayers' Pima County tax appeal, the Department contends that the Pima County Superior Court lacked subject-matter jurisdiction in that action because the Taxpayers failed to pay their 1987 tax bill before it became delinquent. Similarly, Pima County appears to contend, as a cross-issue in support of the dismissal of the Taxpayers' special action, that the tax court lacked subject-matter jurisdiction because the Taxpayers did not file their action before November 1, 1987. In the original Opinion we filed in this case, we declined to address this issue because, applying Bowman v. Board of Regents, 162 Ariz. 551, 785 P.2d 71 (App. 1989), and Hibbs v. Chandler Ginning Co., 164 Ariz. 11, 790 P.2d 297 (App. 1990), we believed that we lacked jurisdiction of the matter since the Department had not filed a cross-appeal. Since we issued that Opinion, Rule 13(b)(3) was added to the Arizona Rules of Civil Appellate Procedur
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