Arizona Appellate Blog

An interesting little case on pre-judgment interest under Rule 68.

Metzler won a jury verdict in excess of an Offer of Judgment she had made. Per Rule 68, the trial court ordered pre-judgment interest from the date of the offer to the date of the judgment. The court then, on BCI’s motion, ordered a new trial, on liability only, but this was reversed on appeal and the case remanded for the entry of judgment. On remand, the following question arose: does the pre-judgment interest run until the date of the original judgment or until the date of the judgment after remand? Until the original judgment, ruled the trial court; Metzler appealed.

The Court of Appeals reverses. The order granting a new trial vacated the original judgment. The trial court had thought it still a valid judgment because BCI had purported to appeal from it; Technically, though, the appeal from an order for new trial, the court indicates, is from that order itself, not from the judgment; that is why 12-2101 makes a new trial order appealable. The court says that this conclusion is also consistent with the Rule’s purpose of encouraging settlement.

The court vacates the judgment, remands for the entry of another new one, and points out that pre-judgment interest will run until that one is entered. This apparently means that the new interest statute will apply, so this might be a Pyrrhic victory.

(link to opinion)

This products case discusses the liability of a nominal middleman who actually had little to do with this particular transaction.

Grubb’s husband was killed by an exploding space heater. She sued everyone in the chain for products liability and negligence. The hardware store that sold the heater was a member of a cooperative, Do It Best (DIB), but had bought the heater directly from its manufacturer rather  through DIB. DIB included it in a catalog of items available to member stores and kept a small processing fee for the transaction. DIB moved for summary judgment, which the trial court granted.

The Court of Appeals affirms, based on some other drop-ship cases. DIB never possessed the heater, had title to it, or had any warranty or shipping obligations for it. DIB did not have the “participatory connection” to the sale necessary for strict liability. Including the heater in its catalog merely made it a “product distribution facilitator” under Restatement (Third) Products Liability 20, which is a type of creature not strictly liable.

As to negligence, the court assumes duty but says that Grubb did not cite anything in the record establishing a standard of care or its breach. “Accordingly, Grubb has waived these issues and we will not address the merits of her claims regarding standard of care and breach of duty.” Its hard to know whether this means that there wasn’t any such evidence in the record or there was but Grubb’s briefs were defective.

(link to opinion)

Can you be held it contempt for saying that you’re going to violate a court order?

A homeowner got a TRO stopping  a trustee’s sale because of defects in the notice. BMO re-noticed the sale. The homeowner argued this violated the TRO; the trial court agreed and awarded him attorney’s fees. BMO took this special action.

The Court of Appeals grants relief. The terms of the TRO blocked the sale of the home. Re-doing the notice wasn’t a sale.

BMO’s attorney had taken the position, until the trial court made clear that he was wrong, that under the new notice he would go ahead with a sale despite the TRO. The Court of Appeals agrees that he was wrong. But Arizona does not recognize “anticipatory contempt.” Intent can change and holding someone in contempt before he’s actually committed it violates the equitable principle of using the least necessary power.

The opinion is only eight pages long, which for this judge is little more than a tweet, but she does get in six footnotes [edited; the original said eight footnotes, sorry about that).

(link to opinion)

A significant case about discovery of a defendant’s wealth when punitive damages are alleged.

Plaintiff’s mother died, allegedly as a result of inadequate medical care while in Maricopa County jail. And so, in an action that surely has everything to do with gaining compensation for a grieving daughter and nothing at all to do with politics or publicity, she sued Joe Arpaio and others personally. And, having pleaded punitive damages, she wanted details of all his assets. She admitted that she wasn’t entitled to them before making a prima facie showing but wanted the information sealed and filed with the court so that it would be available as soon as she did so at trial. The trial judge agreed and ordered the defendants to do that. They took this special action.

The Court of Appeals accepted it and grants relief. The opinion is mostly a review of the Larriva case requiring a prima facie showing. Although the information wouldn’t be revealed until after the showing, its compilation, preparation, and filing are themselves burdens that can’t be based on mere allegation. The opinion rejects Plaintiff’s attempt to analogize this to a situation in which information is collected for inspection in camera since in that case it is needed for the court to make a ruling.

The point of the opinion, though, is to say that the court need not wait until trial to rule on whether a showing can be made but should instead do so during discovery or a pretrial conference, “as soon as is reasonably possible,” “through discovery, by evidentiary means or through an offer of proof.”

The court also expressly holds – because this trial judge apparently didn’t think he could do it – that the financial information can be the subject of a protective order. (Apparently the defendants wanted the information sealed and returned after the trial, even if the court allowed the evidence in. The court declines to rule, since the trial judge hadn’t actually done so yet, on whether spectators can be cleared from the courtroom when the financial stuff is presented.)

We don’t know what the court has in mind by including “offer of proof” as a way to judge a prima facie showing. An offer (Rule 103) makes a record, after a ruling, of what a litigant wants to try to prove. An offer made as the evidentiary basis for a trial court ruling is, with all due respect to counsel, little better than an allegation, especially since a punitive allegation is often used to pressure a settlement which, once made, relieves counsel of having to prove what he’s offered.

(link to opinion)