Azore v. Bassett (CA1 12/18/14)

We think we can figure out why the court did this. What we can’t figure out is why it didn’t say so.

The plaintiff’s decedent died after falling in a nursing home. She sought discovery of documents from the home’s quality assurance committee. The home resisted this based on a federal statute requiring that it have such a committee but protecting committee records from discovery. The trial court ordered production; on special action Division One rules that some of the documents were protected committee records, though emails with and reports from other people were not.

If you’re an elder-law-litigation type, or if you’ll love reading about 42 U.S.C. §1396r(b)(1)(B), then click the link below and dive in. We’re not and didn’t and that’s not what this blog is about; what interests us is that the Court of Appeals considered the case at all.

The problem is that the nursing home didn’t cite the right statute to the trial court. The Court of Appeals specifically finds that it “did not sufficiently argue §1396r before the trial court.” Yet the court accepts the special action, reverses the trial court in part, and grants relief, all on the basis of a statute purportedly not argued below.

Why? The court spends a long paragraph trying to explain this.

It cites a case for the proposition that appellate courts “may address waived issues to uphold a trial court’s ruling.” But this opinion reverses, in part; not addressing the waived issue would have upheld the trial court’s ruling.

The court cites a case for the proposition that it can apply “a legal principal . . . not raised before the trial court” if that “would dispose of an action on appeal and correctly explain the law.” But this is not an appeal; the matter need not be heard to be disposed of. An opinion based on the wrong law is not required. And even if it were an appeal calling for an opinion, a memorandum opinion could base the result on what was argued below while doing no damage to the law.

The court cites a case for the proposition that “[W]hen . . .  considering the interpretation . . . of statutes, we [cannot] be limited to the arguments made by the parties if that would cause us to reach an incorrect result.” “Because we view the §1396r argument as . . . correct . . .  we exercise our discretion to address it.” Sounds noble, doesn’t it? But since when is the “correct” result in an adversary system independent of the adversarial process? Why do we bother to file memoranda and briefs if the courts can use issues the parties chose not to or didn’t properly present? How have courts lost the ability to point out when necessary, even in a published opinion, that the result in a particular case resulted from the issues and arguments raised in it and would not necessarily obtain in other cases? But even that is beside the point; in this case the parties didn’t cite the wrong law to the court. The nursing home cited the right law – in what plaintiff argued, and the court agreed, was a patently defective way.  And nothing that either party did would require an incorrect result – even if you think of “correct” in a sort of Cartesian sense, removed from the earthly reality of the parties’ case – since the court was not required to reach any result.

The court has by this opinion established the principal that there are some cases in which not making an argument below will justify denying relief and some cases in which it will justify granting relief. The court can, it its “discretion,” consider that a waived argument was not waived if it deems the argument “correct.” 

This of course does more damage to the law than any other disposition would have.

The pity is that the court could have avoided this almost completely just by explaining itself properly. The two statutes – the one the nursing home argued to the trial court and the one it argued to the Court of Appeals – are identical. They appear in different sub-sub-subsections of the statute (at one or two points the court itself gets confused about where the parentheses should go when citing them, though by the time you read the opinion this may have been corrected by one of those unannounced amendments that the Court of Appeals favors nowadays). Both protect the records of the quality assurance committee; one applies to “nursing facilities,” the other to “skilled nursing facilities.” But there is no suggestion that Congress intended to give them different levels of discovery protection; that it used identical language for both obviously suggests the opposite. To say that the home “did not sufficiently argue §1396r” may be correct in a hyper-technical sense but is entirely misleading. The trial court had before it the same issue that the Court of Appeals did, applying the same statutory language in essentially the same context. That the statutes have different numbers made no difference to the analysis.

That’s why the nursing home didn’t really waive the argument, that’s why considering it was appropriate, and that’s what the court should have said.

Thus endeth this year’s rants. We’re on vacation. Happy Holidays.

(link to opinion)

Madrid v. Avalon Day Care (CA1 11/18/14)

The question here is whether the Court of Appeals has jurisdiction over a judgment stating that “no further matters remain pending” in the Superior Court, pursuant to Rule 54(c), even though matters remain pending in the Superior Court. If you can’t guess the result then you score no points and forfeit any you may have managed to get so far.

The trial court gave defendants summary judgment on some claims and granted their motion to compel arbitration of the rest. Plaintiff appealed. The judgment contained the Rule 54(c) language. (54(c), you no doubt recall, is the new companion to 54(b).) But an order compelling arbitration isn’t appealable and merely suspends the case. Somebody (the opinion says “Defendants”; at least it does at the moment, what it will say next week we don’t know – these things have a way of changing nowadays) argued that the court had jurisdiction anyway because the judgment contained the language. Without citing cases the court says that “A statement that a judgment is final pursuant to Rule 54(c) when, in fact, claims remain pending does not make a judgment final and appealable.” We agree that no citation should be necessary, though it’s a bit strange not to point out that the 54(b) cases came to the analogous conclusion long ago.

Speaking of which, the next section of the opinion says that this judgment had no 54(b) language so its not appealable under that rule, either. Plaintiff (is what the opinion says this time) asked the court to suspend the appeal so that she could amend the judgment (presumably so that she could appeal just the summary-judgment stuff); the court points out that that’s a possibility under 54(c) but not under 54(b).

The court had already dismissed the appeal by an earlier order; this is the follow-up opinion.

(link to opinion)

Fleming v. State of Arizona (CA2 10/31/14)

This one is of limited interest but Division Two’s forays into civil law are rare enough to be mentioned.

The DPS stopped Plaintiffs’ decedent for DUI; her blood alcohol turned out to be over .20. As she was sitting in the DPS cruiser in the emergency lane of  I10 another vehicle hit it, killing her. Plaintiff sued the other driver and the DPS. Against the DPS Plaintiff lost at trial; the jury found the other driver 75% at fault and the decedent 25%. Plaintiff appealed. The Court of Appeals affirms.

The issue was whether the trial court should have instructed the jury on the qualified-immunity statute, 12-820.02(A)(7). Under it the State has no liability for negligence for the injury of a driver guilty of reckless driving or DUI.

Plaintiff argued that the decedent wasn’t a “driver” at the time of the accident. The Court of Appeals says that a “driver” is a person who drives. If the legislature had intended that the statute apply only to one in the act of driving it could have said so.

The statute requires that the injury be attributable to the violation. Plaintiff argued that if it applied here then it could be used to shield the State whenever a person held for DUI is injured in custody. The opinion says that its for the trial court to decide, depending on the facts, whether a chain of events is too attenuated to warrant the instruction.

It would be “absurd,” according to Plaintiff, if the officers’ liability depended on what violation they had pulled the decedent over for. The court doesn’t think it absurd; the legislature could conclude that the statute discouraged drunk driving.

Plaintiff also argued that the evidence of decedent’s very high alcohol level was irrelevant, inflammatory and cumulative. But reversing on an evidentiary ruling is tough even when the ruling isn’t consistent with the appellate court’s resolution of the principal issue. Plaintiff made things worse by having witnesses testify that, in effect, the decedent wasn’t really too drunk to drive, which the court also uses to justify admitting the evidence.

(link to opinion)