STATE of Arizona ex rel. Thomas C. HORNE, Attorney General, Plaintiff/Appellant/Cross-Appellee, v. AUTOZONE, INC., a Nevada corporation, Defendant/Appellee/Cross-Appellant.
No. 1 CA-CV 09-0759
Court of Appeals of Arizona, Division 1, Department D
Aug. 4, 2011
258 P.3d 289
NORRIS, Judge.
dy against First American Title for its failure to identify Sourcecorp‘s judgment lien. Sourcecorp argues that the Norcutts can be made whole by First American Title, and that equitable subrogation should not be used to “shield” the title company. Sourcecorp does not explain, however, how it would be prejudiced if equitable subrogation were ap-plied; in fact, it would be in the same lien position had the lien been timely discovered. Not applying equitable subrogation, on the other hand, would elevate Sourcecorp to a position higher than it was in when the lien attached, giving it a windfall at the expense of the Norcutts. This circumstance was rec-ognized in Lamb, where we stated:
We fail to comprehend the nature of the perceived prejudice or inequity, as it ap-pears the lienholders would remain in the same position they occupied before subro-gation if that doctrine were applied. To the contrary, without subrogation, the lien-holders would receive a windfall if elevated to a higher priority status.
208 Ariz. at 483, ¶ 18, 95 P.3d at 547 (citing Restatement § 7.6 cmt. a).
¶ 35 In a related argument, Sourcecorp asserts that the fact the Norcutts had title insurance and the title company negligently failed to identify the Sourcecorp lien should in itself preclude the application of equitable subrogation. We are not persuaded under the facts presented here. The Norcutts ap-pear as innocent victims in this scenario. Although they more than likely could be made whole monetarily by First American Title, to deny equitable subrogation on the ground that they had insurance to cover this circumstance would, in essence, punish them for being responsible and obtaining the in-surance in the first place and could leave them open to losing the Property, which to them is not merely collateral as with a lend-er, but is their home. Granting equitable subrogation imposes no harm on Sourcecorp, which remains in the same lien position it would have been in had no error occurred, and the effect is that the Norcutts would not be paying the debt that the Shills “in justice, equity, and good conscience ought to pay.” Mosher, 45 Ariz. at 468, 46 P.2d at 112.
¶ 36 Because we find that under these circumstances the Norcutts are entitled to be equitably subrogated to the lien position of Zions Bank, we need not address the remain-ing arguments raised by the Norcutts. Also, because Sourcecorp is no longer the success-ful party, we vacate the trial court‘s award of attorneys’ fees to Sourcecorp. Both sides request an award of attorneys’ fees pursuant to
CONCLUSION
¶ 37 Under the facts presented in this case, we hold that the Norcutts, real property purchasers who paid off the prior lien as part of the purchase price, are entitled to be equitably subrogated to the lien position of the debt they paid. We therefore reverse the judgment in favor of Sourcecorp and remand to the trial court with directions to enter judgment in favor of the Norcutts.
CONCURRING: PHILIP HALL, Presiding Judge and JON W. THOMPSON, Judge.
Fennemore Craig, PC By Timothy Berg, and Alexander R. Arpad, Phoenix, Attorneys for Amicus Curiae Arizona Retailers Associa-tion.
Renaud Cook Drury Mesaros, PA By Wil-liam W. Drury, Jr., James L. Blair, N. Todd McKay, Kevin R. Myer and Ronald I. Rubin, and Paul G. Ulrich, P.C. By Paul G. Ulrich, and Melinda K. Cekander, Phoenix, Attor-neys for Defendant/Appellee/Cross-Appel-lant.
Notes
OPINION
NORRIS, Judge.
¶ 1 This appeal and cross-appeal arise out of claims for deceptive pricing practices as-serted under the Arizona Consumer Fraud Act (“CFA“) by appellant State of Arizona against appellee AutoZone. We hold: first, the CFA‘s prohibition against deceptive acts or practices neither imposes strict liability nor requires proof of an intent to deceive although it does require proof the retailer acted voluntarily; second, evidence a retailer committed a deceptive act or practice gives rise to a rebuttable presumption the retailer acted voluntarily; third, a retailer‘s failure to disclose information may constitute a decep-tive act or practice if the retailer was under a legal duty to disclose the information; and fourth, to ensure compliance with and deter violations of the CFA, the CFA authorizes a court to order disgorgement.
FACTS AND PROCEDURAL BACKGROUND
¶ 2 AutoZone is one of the nation‘s largest specialty retailers of automotive parts and accessories. In 2001, the Arizona Depart-ment of Weights and Measures (“DWM“) began to inspect AutoZone‘s Arizona stores to verify its compliance with Arizona‘s retail pricing statute,
¶ 3 Relying on the inspection data collected by the DWM, in 2006, the State sued Auto-Zone under the CFA,
¶ 4 After the parties had conducted discov-ery, the State moved for partial summary judgment on liability, asserting the undisput-ed material facts demonstrated AutoZone had violated the CFA‘s act clause by offering to sell at least 806 mispriced goods and 2814 non-priced goods during the relevant period. In its motion papers, the State argued it was only required to prove “AutoZone [had] in-tended to display its merchandise for sale,” characterizing the CFA‘s act clause as “es-sentially a strict liability statute.”
¶ 5 In its response and cross-motion for summary judgment, AutoZone disagreed with the State‘s construction of the CFA. Relying on State ex rel. Babbitt v. Goodyear Tire & Rubber Co., 128 Ariz. 483, 626 P.2d 1115 (App.1981), AutoZone argued the CFA‘s act clause incorporated an intent element requiring the State to produce evidence—which the State had failed to do—that it had “intended to put inaccurate prices on its shelves or product.” AutoZone further ar-gued its failure to price goods constituted an omission, not a deceptive act, thus requiring the State to produce evidence—which the State also had failed to do—that it had of-fered for sale the non-priced goods “with intent that others rely” as required by the omission clause. AutoZone also separately moved for summary judgment, arguing, as relevant here, the State was not entitled to certain remedies under the CFA because, inter alia, it had already penalized AutoZone under the Pricing Statute for the same pric-ing practices. See infra ¶¶ 36-38.
¶ 6 Finding disputed fact issues, the supe-rior court denied the parties’ motions (“first ruling“). In so doing, it rejected the State‘s strict liability argument, ruling the act clause required the State to prove AutoZone had intended to “post[] a price that is inaccurate and potentially misleading.” The court also rejected the State‘s argument the act clause, and not the omission clause, applied to Auto-Zone‘s no pricing. The court made addition-al rulings which we discuss in more detail below. See infra Part III.
¶ 7 After additional discovery, AutoZone and the State again cross-moved for sum-mary judgment on liability. As they had before, the parties disputed whether the act clause required any showing of intent. With-out addressing all of the arguments raised by the parties, a different division of the superi-or court, relying on the first ruling, entered summary judgment in AutoZone‘s favor “by necessity” to allow the parties’ disagreement over intent to be resolved on appeal. Ac-cordingly, it dismissed the State‘s claims and denied its cross-motion for summary judg-ment. The State‘s appeal and AutoZone‘s cross-appeal followed.
DISCUSSION
I. The Act Clause
¶ 8 The State argues the superior court should not have granted summary judgment to AutoZone because the act clause “creates a statutory claim for consumer fraud that requires no proof of intent to deceive, intent to do the act, or any other form of intent.” As we understand the State‘s argu-ment, the act clause imposes strict liability, and therefore it was only required to show AutoZone “made, used or employed misrep-resentations, deception, or deceptive acts or practices[] in connection with the sale or advertisement of any merchandise.”4 Ac-cordingly, the State argues we should aban-don Goodyear insofar as it requires a show-ing of intent. We disagree. As we explain, the act clause requires a form of intent.
A. Intent
¶ 9 Whether the CFA‘s act clause im-poses strict liability, as the State argues, presents an issue of law we review de novo. State v. Hansen, 215 Ariz. 287, 289, ¶ 6, 160 P.3d 166, 168 (2007). When we construe a statute, “we apply ‘fundamental principles of statutory construction, the cornerstone of which is the rule that the best and most reliable index of a statute‘s meaning is its language and, when the language is clear and unequivocal, it is determinative of the stat-ute‘s construction.‘” Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 296, ¶ 8, 152 P.3d 490, 493 (2007) (quoting Janson ex rel. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991)).
¶ 10 The relevant portion of the CFA is as follows:
The act, use or employment by any person of any deception, deceptive act or practice, fraud, false pretense, false promise, mis-representation, or concealment, suppres-sion or omission of any material fact with intent that others rely upon such conceal-ment, suppression or omission, in connec-tion with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived or dam-aged thereby, is declared to be an unlawful practice.
¶ 11 Rather, the act clause describes con-duct, specifically “[t]he act, use or employ-ment . . . of any deception, deceptive act or practice . . . in connection with the sale or advertisement of any merchandise.” Id. Al-though this language does not incorporate an intent requirement, such as willfully, know-ingly, or intentionally, the described conduct refers to activities that by their very nature require voluntary conduct in the sense of action that is undertaken freely. See Trustmark Ins. Co. v. Bank One, Ariz., NA, 202 Ariz. 535, 541, ¶ 27, 48 P.3d 485, 491 (App. 2002) (courts give statutory words their ordi-nary meaning unless specifically defined or context clearly indicates special meaning is intended). In other words, the act clause requires a person voluntarily do the act he or she performed.5 That the act clause requires this minimal intent is underscored by the CFA‘s definitions of “sale” and “advertise-ment“: a sale is “any sale, offer for sale, or attempt to sell any merchandise for any con-sideration,”
¶ 12 We essentially described this minimal level of intent in Goodyear. 128 Ariz. at 486, 626 P.2d at 1118. In that case, the State alleged a tire manufacturer had violated the CFA by advertising tire prices without dis-closing that federal excise taxes would be added to the price of the tires or explaining the meaning of “ply rating.” Id. at 484-85, 626 P.2d at 1116-17. The manufacturer es- sentially argued, first, its advertisements were not deceptive as a matter of law, and second, the CFA required the State to show “an intent to deceive.” Id. at 485-86, 626 P.2d at 1117-18. Although we agreed with the first argument, we disagreed with the second argument. We explained the CFA‘s act clause only required a showing of “an intent to do the act involved,” and, in that case, submission of the allegedly deceptive advertisements was sufficient to make that showing.
In light of the purpose of the [CFA], which is to protect the public from deceptive acts, we hold that the only showing of intent required by
A.R.S. § 44-1522 is an intent to do the act involved. It is not necessary to show a specific intent to deceive.
Id. at 486, 626 P.2d at 1118 (emphasis added) (footnote omitted). Relying on Goodyear, other Arizona courts also have recognized the act clause does not require proof of an intent to deceive. Alaface v. Nat‘l Inv. Co., 181 Ariz. 586, 591, 892 P.2d 1375, 1380 (App. 1994); State ex rel. Corbin v. Tolleson, 160 Ariz. 385, 398, 773 P.2d 490, 503 (App.1989).
¶ 13 As Amicus Arizona Retailers Associa-tion notes, although the Goodyear court did not cite the source of its ‘intent to do the act involved’ standard,” that standard is analo-gous to the criminal law concept of “general intent.”6 General intent crimes only require proof the actor intended to do the act per-formed. State v. Greenawalt, 128 Ariz. 388, 394, 626 P.2d 118, 124 (1981).7
¶ 14 As Amicus also notes, “intent to do the act involved” is not a very high standard. Indeed, Arizona courts recognized that in “crimes of general intent, the party is pre-sumed to have the requisite criminal intent from the commission of the crime itself.” State v. Jamison, 110 Ariz. 245, 248, 517 P.2d 1241, 1244 (1974), overruled on other grounds by State v. Mikels, 118 Ariz. 495, 578 P.2d 174 (1978); see State v. Bell, 113 Ariz. 279, 281, 551 P.2d 548, 550 (1976); State v. Brown, 204 Ariz. 405, 409, ¶ 18, 64 P.3d 847, 851 (App.2003). By recognizing the State had made a prima facie showing “of the intent to do the act” by demonstrating the manufacturer had placed the advertisements, Goodyear adopted a similar approach to in-tent. The court stated:
In the context of advertising, once it has been shown that the act complained of is encompassed by
A.R.S. § 44-1522 , a prima facie showing of the intent to do the act is made by the placing of the advertisement. Thus, in the present case, the required showing has been made by the submission of the advertisements in question, although the summary judgment fails because the intended acts were not shown to be acts within the language ofA.R.S. § 44-1522 .
128 Ariz. at 486, 626 P.2d at 1118. Accord-ingly, we reject the State‘s argument we should abandon Goodyear‘s intent standard and impose strict liability.
¶ 15 We recognize that, as the State points out, the CFA “is designed to root out and eliminate ‘unlawful practices’ in mer-chant-consumer transactions,” People ex rel. Babbitt v. Green Acres Trust, 127 Ariz. 160, 164, 618 P.2d 1086, 1090 (App.1980), super-seded by statute on other grounds, 1981 Ariz. Sess. Laws, ch. 295, § 5, as recognized in State ex rel. Corbin v. Pickrell, 136 Ariz. 589, 667 P.2d 1304 (1983), and the CFA‘s cause of action for consumer fraud is considerably different from a common-law fraud claim. Haisch v. Allstate Ins. Co., 197 Ariz. 606, 610, ¶ 14, 5 P.3d 940, 944 (App.2000) (com-mon-law fraud elements); Cearley v. Wieser, 151 Ariz. 293, 295, 727 P.2d 346, 348 (App. 1986) (CFA broader in scope than common-law fraud); Peery v. Hansen, 120 Ariz. 266, 269, 585 P.2d 574, 577 (App.1978) (violation of CFA “more easily shown” than common-law fraud). We also recognize the legislature included specific intent requirements in other provisions of the CFA—for example, the “in-tent that others rely” requirement in the omission clause and the requirement in the civil penalties provision,
¶ 16 Further, although the legislature may enact strict liability statutes, State v. Slayton, 214 Ariz. 511, 514, ¶ 10, 154 P.3d 1057, 1060 (App.2007), liability under such statutes is strict, and thus such statutes are disfavored, State v. Young, 192 Ariz. 303, 311, ¶ 30, 965 P.2d 37, 45 (App.1998) (quoting Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 2088, 85 L.Ed.2d 434 (1985)), and we will construe statutes as imposing strict liability only if “there appears to be a clear legislative intent not to require any particular mental state.” Slayton, 214 Ariz. at 514, ¶ 12, 154 P.3d at 1060. We have found no authority, and the State has cited none, suggesting the legislature intended to impose strict liability under the act clause.
¶ 17 Moreover, in the context of criminal law, strict liability is considered appropriate for regulatory offenses that “carry relatively small penalties, and do not seriously damage the reputation of those convicted of them.” Id. at 516, ¶ 20, 154 P.3d at 1062. Although not a criminal statute, liability under the CFA can result in significant reputational harm and financial penalties, such as restitu-tion and disgorgement, see infra ¶¶ 39-43, without requiring any proof of a separate mental state.
¶ 18 Finally, Goodyear‘s “intent to do the act involved” formulation and its recognition this intent can be presumed from the actor‘s commission of the act has applied to CFA act-clause claims for 30 years. This court has relied on Goodyear‘s construction of the CFA‘s act clause when construing the CFA and even similar statutes. Alaface, 181 Ariz. at 591, 892 P.2d at 1380 (CFA); Tolleson, 160 Ariz. at 398, 773 P.2d at 503 (CFA); see Siler v. Ariz. Dep‘t of Real Estate, 193 Ariz. 374, 380, ¶ 26, 972 P.2d 1010, 1016 (App.1998) (citing Goodyear‘s intent standard when con-struing
¶ 19 Given this history and the importance of stare decisis to the predictability of the law, especially when prior precedent in-volves the interpretation of a statute, id., we reaffirm the formulation of intent we first described in Goodyear. Under that formu-lation, the State was required to show Auto-Zone voluntarily intended to do the acts performed, that is, voluntarily offered mis-priced or non-priced goods for sale.
B. AutoZone‘s Entitlement to Summary Judgment8
¶ 20 Although we reject the State‘s strict liability argument, we nevertheless agree with the State that AutoZone was not entitled to summary judgment. In our view, the superior court misapplied Goodyear‘s “in-tent to do the act involved” formulation.
¶ 21 The superior court ruled that, under the act clause, the State was required to prove AutoZone had intended to post a price that was inaccurate and potentially mis-leading. AutoZone stands firmly behind the superior court ruling, arguing on appeal the act clause required the State to prove that on the dates of the DWM inspections, AutoZone had intentionally posted a price different from the price at the register (or intended to post no price). Under Goodyear, however, the State was not required to make such a showing. Instead, it merely needed to make a prima facie showing AutoZone had commit-ted the “act[s] involved,” that is, offered mis-priced and non-priced goods for sale. Prima facie evidence is not evidence at all but rath-er is a presumption of law that, in the ab-sence of evidence to the contrary, allows the trier of fact to presume the existence of a fact based on proof of other facts. Universal Underwriters Ins. Co. v. State Auto. & Cas. Underwriters, 108 Ariz. 113, 115, 493 P.2d 495, 497 (1972) (citing cases). In most cases, the presumption created by prima facie “evi-dence” affects the burden of producing evi-dence and vanishes when the opposing party introduces evidence contradicting the pre-sumption. See id.
¶ 22 Applying this principle here, we agree with the State that when it demon-strates an actor has committed an act subject to the act clause and thus has made a prima facie showing of the actor‘s intent, the actor then bears the burden of producing sufficient evidence he or she acted without such intent. If the actor does this, intent must be deter-mined as if the presumption of intent had never existed in the case, even if the fact-finder might ultimately disbelieve the actor‘s evidence. See generally Golonka v. Gen. Motors Corp., 204 Ariz. 575, 589, ¶ 48, 65 P.3d 956, 970 (App.2003).9
¶ 23 In sum, the State presented evidence AutoZone had offered mispriced and non-priced goods for sale, and by doing so, made a prima facie showing AutoZone had commit-ted those acts with the requisite intent. Cf. Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, 287, ¶ 14, 17 P.3d 790, 793 (App.2000) (“When the party moving for summary judg-ment makes a prima facie showing that no genuine issue of material fact exists, the burden shifts to the opposing party to pro-duce sufficient competent evidence to show that an issue exists.“). The burden then shifted to AutoZone to rebut the State‘s pri-ma facie showing that it had acted with the requisite intent. On this record, therefore, AutoZone was not entitled to summary judg-ment. Consequently, we vacate summary judgment in AutoZone‘s favor and remand for further proceedings consistent with this opinion.
II. The State‘s Cross-Motion for Summary Judgment
¶ 24 The State argues the superior court should have granted its cross-motion for summary judgment on liability10 because, first, it was not required to prove intent under the act clause, and second, AutoZone‘s mispricing and no pricing (which the State argued was a deceptive practice, not just an omission) were undisputed and constituted, as a matter of law, deceptive acts or practices entitling it to summary judgment.11 Al-though, as discussed, the State presented evidence AutoZone offered mispriced and non-priced goods for sale, and thus made a prima facie showing AutoZone intended to do these acts, it nevertheless was not entitled to summary judgment because AutoZone was not given an opportunity to rebut the State‘s prima facie showing of intent.
A. Mispricing under the Act Clause
¶ 25 A person is not liable under the act clause unless, first, the person em-ploys or uses a “deception, deceptive act or practice, fraud, false pretense, [or] misrepre-sentation” in offering or advertising goods for sale.
¶ 26 But that is not the end of the analysis. A person is not liable under the act clause unless the person intended to do the decep-tive act.
B. No Pricing—Deceptive Act/Practice or Omission
¶ 27 The State also argues, as it did in the superior court, AutoZone‘s offering for sale goods without prices should be considered a deceptive practice as a matter of law. The superior court, agreeing with AutoZone, re-jected this argument and found the omission clause, not the act clause, applied to the State‘s no-pricing claim. We disagree.
¶ 28 First, we must consider whether Au-toZone‘s no pricing constitutes an omission under the omission clause or a “deceptive act or practice” under the act clause. On its face, there is a difference between acts and omissions. Generally, “[t]he word ‘act‘. . . ‘denotes the affirmative. Omission denotes the negative. Act is the expression of will, purpose. Omission is inaction. Act carries the idea of performance. Omission carries the idea of refraining from action.‘” Terry v. Lincscott Hotel Corp., 126 Ariz. 548, 553, 617 P.2d 56, 61 (App.1980) (quoting Randle v. Birmingham Ry., Light & Power Co., 169 Ala. 314, 53 So. 918, 921 (1910)). At common law, courts imposed “liab[ility] without any great regard” for fault when a person injured another by an affirmative act, but they were not “greatly concerned with one who merely did nothing” because they were reluctant to punish silence or non-actions as the person “has at least made his situation no worse.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 56, at 373 (5th ed. 1984).
¶ 29 The distinction between what constitutes an act and what constitutes an omission, however, has not always been clear. See Chattin v. Cape May Greene, Inc., 124 N.J. 520, 591 A.2d 943, 946-47 (1991) (Stein, J., concurring). Indeed, “[a] misrepresenta-tion and an omission share the same baneful feature: a capacity to mislead the custom-er. . . . The only logical basis for the Legisla-ture‘s different treatment of the two must lie in its perception of different levels of culpa-bility.” Id. Accordingly, under the common law, courts often recognized that a party‘s omission, that is, a party‘s failure to disclose information, could constitute an affirmative deception when the party had a duty to disclose that information. See Haisch v. All-state Ins. Co., 197 Ariz. 606, 610, ¶ 14, 5 P.3d 940, 944 (App.2000) (common-law fraud claim typically requires an affirmative misrepre-sentation, but when a defendant has “a legal or equitable obligation to reveal material in-formation,” failure to do so is “equivalent to” a fraudulent misrepresentation); see also Wells Fargo Bank v. Ariz. Laborers, Team-sters & Cement Masons Local No. 395 Pen- sion Trust Fund, 201 Ariz. 474, 496 n.22, ¶ 88, 38 P.3d 12, 34 n.22 (2002)14 (citing Restatement (Second) of Torts § 551 (1977)); S Dev. Co. v. Pima Capital Mgmt. Co., 201 Ariz. 10, 14-16, ¶¶ 7-10, 31 P.3d 123, 127-29 (App.2001); Hill v. Jones, 151 Ariz. 81, 84-85, 725 P.2d 1115, 1118-19 (App.1986); Fra-zier v. Sw. Sav. & Loan Ass‘n, 134 Ariz. 12, 17-18, 653 P.2d 362, 367-68 (App.1982). Thus, when a party has a duty to disclose certain information, the failure to do so con-stitutes an affirmative deception because it has failed to disclose information it was obli-gated to disclose.
¶ 30 The language of the CFA reflects the common law‘s reluctance to im-pose liability for mere omissions because it imposes an intent-to-rely requirement in the omission clause. See supra ¶ 10. Thus, as a general matter, we agree with AutoZone the State cannot avoid the heightened intent re-quirement imposed by the omission clause by characterizing an omission as a deception. But, when the law imposes a duty to disclose certain information, the failure to disclose the information can constitute an affirmative de-ception under the act clause.15 See Haisch, 197 Ariz. at 610, ¶ 14, 5 P.3d at 944.
¶ 31 In the context of their own state consumer fraud statutes, other courts have recognized a party has committed a decep-tive act if it failed to disclose information it was under a duty to disclose. For example, in Fenwick v. Kay American Jeep, Inc., the State of New Jersey sued two car dealers and an advertiser for failing to disclose a “bona fide odometer reading” in their car advertisements, in violation of a regulation requiring such disclosure, which was promul-gated under the state‘s consumer fraud act, which includes
¶ 32 Here, contrary to the require-ments of the Pricing Statute, AutoZone failed to post prices on goods or at their point of display. See supra ¶ 2. Thus, we agree with the State that AutoZone‘s no pricing consti-tuted something “more than the mere omis-sion of a material fact,” Fenwick, 371 A.2d at 16, and amounted to a deceptive act, subject to the act clause.
¶ 33 On this record, AutoZone‘s no pricing was deceptive as a matter of law. Offering goods for sale without a price has a “tenden-cy and capacity,” Madsen, 143 Ariz. at 618, 694 P.2d at 1232, to convey misleading im-pressions to consumers because, for example, they may incorrectly assume another good‘s price applies to the good with no price. Ulti-mately, when a store offers goods for sale without a posted price, consumers cannot know the actual price of the good until they are at the register and thus they will be unable to compare prices while shopping.
¶ 34 But, as with the mispricing claim, the State was not entitled to summary judgment. Although, as explained, the State made a prima facie showing of AutoZone‘s intent by presenting evidence, through the DWM inspection reports, AutoZone had of-fered non-priced goods for sale, AutoZone was entitled to an opportunity to rebut the State‘s prima facie showing of intent.
III. AutoZone‘s Cross-Appeal
¶ 35 In its cross-appeal, AutoZone argues that if we remand for further pro-ceedings the State should not be entitled to seek, first, “duplicative civil penalties” or, second, disgorgement. The superior court explicitly rejected the first argument, ruling the CFA permits cumulative remedies and noting it had “the discretion to fashion any monetary award so as to avoid a duplicative recovery.” The superior court rejected the second argument as well, although implicitly, by finding a question of fact existed as to whether the State was entitled to disgorge-ment of profits. Because we are remanding this matter to the superior court and Auto-Zone‘s arguments regarding available reme-dies under the CFA will likely arise on re-mand, we address them now. See Lowe v. Pima Cnty., 217 Ariz. 642, 649, ¶ 30, 177 P.3d 1214, 1221 (App.2008). As we explain, we agree with the rulings made by the superior court.
A. Duplicative Civil Penalties
¶ 36 AutoZone argues the State can-not obtain civil penalties under the CFA because the State has already assessed civil penalties against it for violating the Pricing Statute and imposing such penalties under the CFA would punish the same conduct and would be duplicative. Accordingly, it asserts we should interpret the CFA‘s cumulative remedies provision as prohibiting duplicative civil penalties for the same conduct. See
¶ 37 A CFA civil penalty provision permits the State to impose civil penalties for wilful violations of the CFA:
If a court finds that any person has wilful-ly violated § 44-1522, the attorney general upon petition to the court may recover from the person on behalf of the state a civil penalty of not more than ten thousand dollars per violation.
¶ 38 Further, based on our review of the record, the State appears to have argued (1) each Pricing Statute violation constituted a deceptive act or misrepresentation and (2) the aggregate of the violations constituted a deceptive practice based on AutoZone‘s pat-tern of conduct during the relevant period. Insofar as the State is seeking penalties for individual Pricing Statute violations, the con-duct may be different because the DWM did not impose administrative penalties for every violation.17 Accordingly, the State has not penalized AutoZone for all of the mispricings and no pricings identified in the DWM in-spection data. And, insofar as the State is seeking penalties for AutoZone‘s aggregate or pattern of violations, that conduct is dif-ferent than the conduct the DWM penalized after its inspections—a “practice” is a habitu-al action and something more than an accu-mulation of a number of individual instances of conduct.18 Thus, contrary to AutoZone‘s argument, the State is not seeking to recover twice for the “same conduct.”19
B. Disgorgement
¶ 39 AutoZone next argues the State is not entitled to pursue disgorgement under
¶ 40 Although the statute does not specifi-cally mention disgorgement, it grants the court broad discretion to prevent unlawful practices: “The court may make such orders or judgments as may be necessary to: 1. Prevent the use or employment by a person of any unlawful practices.”
¶ 41 As a traditional equitable remedy to prevent unlawful conduct, other courts have allowed disgorgement when construing stat-utes that contained broad language similar to that contained in
¶ 42 Furthermore, many courts have viewed disgorgement as a form of injunctive relief when the statute imposes no limita-tions on a court‘s equitable powers. See, e.g., Pierce v. Amaral, 938 F.2d 94, 95-96 (8th Cir.1991) (“By authorizing the Secretary [of Housing and Urban Development] to seek an injunction, section 1714(a) allows the Secretary to invoke the district court‘s equi-table jurisdiction [and thus order disgorge-ment].“); Sec. & Exch. Comm‘n v. Clark, 915 F.2d 439, 453 (9th Cir.1990) (“The SEC‘s power to obtain injunctive relief [under the Securities Exchange Act] has been broadly read to include disgorgement of profits real-ized from violations of the securities laws.“); cf. Owner-Operator Indep. Drivers Ass‘n v. Swift Transp. Co., 632 F.3d 1111, 1121 (9th Cir.2011) (federal trucking law listed “only injunctive relief to the exclusion of other eq-uitable remedies“; court not authorized to order disgorgement). Here, ordering dis-gorgement would be consistent with
¶ 43 Therefore, based on these authorities and given the language of the statute, we hold
IV. Attorneys’ Fees
¶ 44 The State requests its attorneys’ fees and costs on appeal pursuant to
¶ 45 AutoZone requests its reason-able attorneys’ fees and costs on cross-appeal pursuant to
CONCLUSION
¶ 46 For the foregoing reasons, we vacate summary judgment in favor of AutoZone, decline to direct entry of summary judgment in the State‘s favor on liability, and remand for further proceedings consistent with this opinion.
CONCURRING: PATRICIA A. OROZCO, Judge.
GEMMILL, Judge, concurring in part and dissenting in part.
¶ 47 I concur with my colleagues on the issues addressed in the majority opinion with the exception of the majority‘s conclusion that the remedy of disgorgement is available to the State under the CFA.
¶ 48 Before addressing disgorgement, I will summarize my understanding of the in-tent requirement under the CFA that the State must prove on the part of AutoZone. The CFA neither imposes strict liability nor requires proof of traditional intent to deceive. Relying primarily on the language of the CFA and on our Goodyear opinion, we have concluded that the requisite intent is the intent “to do the act involved.” A retailer such as AutoZone should not be liable under the CFA for involuntary, unintended mispric-ings or missing prices. See supra ¶¶ 10-19. We have also determined that the very doing of the acts involved allows a presumption of the requisite intent, see supra ¶¶ 21-22, and therefore the State carries its initial burden by proving the mispricings or missing prices. On remand, AutoZone will have the opportu-nity to offer admissible evidence concerning its lack of intent.
¶ 49 The majority concludes that disgorge-ment is available to the State as a remedy under the CFA. See supra ¶¶ 39-43. I re-spectfully dissent from this conclusion. The CFA is a comprehensive set of statutes set-ting forth in detail a variety of remedies and penalties for violations of its provisions, yet these statutes do not describe or specifically authorize disgorgement. When the legisla-ture has created a complete statutory scheme that does not include a particular remedy that could have easily been included, we should be very reluctant to create such a remedy by judicial interpretation. See Bal-lesteros v. Am. Standard Ins. Co. of Wis., 226 Ariz. 345, 349, ¶ 17, 248 P.3d 193, 197 (2011) (“[I]t is not our place to rewrite the statute.“); New Sun Bus. Park, LLC v. Yuma Cnty., 221 Ariz. 43, 47, ¶ 16, 209 P.3d 179, 183 (App.2009) (same); Rotolo v. San Jose Sports and Entm‘t, LLC, 151 Cal. App.4th 307, 59 Cal.Rptr.3d 770, 782 (2007) (stating that courts “have no power to re-write a statute by implying additional provi- sions we believe would further legislative purpose” and “[t]his rule of judicial restraint is particularly appropriate where the stat-utes, as here, are detailed and comprehen-sive“).
¶ 50 Under the provisions of the CFA, the court may impose injunctive relief against companies or individuals to prevent specific conduct and may even prohibit persons from engaging altogether in a specified trade or occupation.
¶ 51 The legislature has acted to create a variety of remedies and penalties for viola-tions of the CFA. Now the State wants to add a disgorgement remedy that is not part of the statutory scheme. This new remedy differs from the statutory restitutionary rem-edy because the funds recovered will appar-ently go to the State, not any actual victims. Yet the legislature has already provided for specific civil penalties without any mention of disgorgement. See id. Furthermore, as Au-toZone points out, the CFA contains no pro-vision for the handling and use of any funds that might be recovered via this new remedy. See
¶ 52 Faced with this detailed statutory scheme enacted by the legislature regarding consumer fraud, I would leave to the legisla-ture the creation of a new remedy such as disgorgement. We should not in essence rewrite these statutes by judicial interpreta-tion. See Ballesteros, 226 Ariz. at 349, ¶ 17, 248 P.3d at 197; New Sun, 221 Ariz. at 47, ¶ 16, 209 P.3d at 183; Rotolo, 59 Cal.Rptr.3d at 782.
¶ 53 For these reasons, I respectfully dis-sent from the majority‘s conclusion that the remedy of disgorgement is available to the State under the CFA.