A Note to Our Readers
We’ve amended what had been a brief blog of the Supreme Court decision in Walsh v. Cardiac Specialists (posted April 13). Our practice is not to change blogs after we post them (except if we spot a typo) so that people won’t think we hide our mistakes. If we ever make one, it will remain on display. But we received an inquiry about an issue we hadn’t mentioned which, on reflection, is at least as important as anything else in the blog. So, while not changing what we originally posted we have added some paragraphs, marking the new section as such.
Walsh v. Arizona Cardiac Specialists (4/13/12)
We blogged the Court of Appeals’ opinion here; go there for the facts. The Supreme Court vacates that opinion but agrees that a zero award in a wrongful-death case is proper. Since wrongful death is not a common-law claim the common-law rule does not apply; the CA2 cases to the contrary are overruled.
Apparently the children acknowledged that in principle but argued that the jury had ignored uncontradicted evidence of their loving relationship with the deceased. But a jury has great discretion in wrongful death cases and could have discredited the children’s testimony because, for example, of their self-interest. The court also says, though, that “the jury might have accepted the children’s testimony about their loss, but nonetheless decided, given all the circumstances, that awarding no damages was “fair and just.” It seems that the jury’s discretion in wrongful death is just about unlimited.
[LATER EDIT 4/15/12] We’ve been asked about an issue in the CA1 opinion that we didn’t mention here and have realized that we should have.
Specialists argued that Walsh waived the issue by not raising it when the jury returned the verdict. The Court of Appeals said that was “moot” and addressed the substance, which we said “puts the cart before the horse.” The Supreme Court, in a footnote, says that the lower court’s mootness comment was correct. So, who’s right?
Though “moot” is not quite the right word, it is logically true that if a zero verdict is not defective then it need not be treated as such (i.e., Walsh didn’t waive anything by not raising the issue at the time). But our comment intended to refer to a matter not of legal logic but of jurisprudence – the question, addressed later in our Court of Appeals blog, of CA1’s approach to the CA2 precedent. The Supreme Court’s approach is understandable but the same can’t be said of CA1. As we blogged, that court “reaches the issue because it wants to,” not because it should have.
This is especially true since our appellate courts have nowadays made a point of referring to Division Two opinions as merely being those of “another panel” of the Court of Appeals (e.g, here and here; if you think these random, meaningless occurrences then please remember not to buy bridges in Brooklyn or answer Nigerian emails). The fact that there even are two divisions, in other words, is a secondary thing we should ignore. But the Court of Appeals in Walsh blithely threw over two decisions from two panels – four different judges – twenty years apart. We’re shown that some panels are nevertheless more equal than others and that decisions from some aren’t really “real” – no matter how many nor how old they are – until they’re confirmed by another. That isn’t a legal system – its legal chaos. It would even be better to admit officially – if its true – that CA2 is considered the minor leagues and counts only until someone in the Valley makes the call. That would at least give us some guidance in trying to tell our clients what the law is.
The Court of Appeals already knows how to handle this problem correctly: Follow the precedent but signal that you do so by obligation rather than agreement. And the Supreme Court is not blameless, since it has made the problem worse by not mentioning it in this opinion.
(link to opinion)
Hall v. Read Development (CA1 4/12/12)
This case holds incidentally that a subsequent house purchaser can’t rescind but its real interest concerns how to factor in attorneys fees in deciding who is the successful party under 12-341.01.
Hall was unhappy with her house and sued its builder, Read. The jury awarded her $30,000. This was less than Read had offered in settlement and so it argued that under 12-341.01A Hall was not the “successful party” for purposes of awarding fees. But the trial court awarded fees anyway, on the theory that the amount Hall’s fee request (about $300,000) exceeded Read’s offer. Read appealed.
The statute says that the offeror is the successful party if the “judgment finally obtained” is less than the offer. Since the “judgment finally obtained” can include fees the question becomes whether the amount of the fees to be included should be considered in deciding whether they should be included. The Court of Appeals says “yes,” and affirms. It says that “judgment finally obtained” is clear language. Then, in backhanded acknowledgment that context just might have something to do with it, the court says that, anyway, the statute doesn’t specifically prohibit choosing the successful party the same way – or in some sort of overlapping way – in a case where there’s been a settlement offer as in a case where there hasn’t. The court also says that it is “harmonizing” the statute with Rule 68, which makes specific provision for the fee question. “Harmonizing” a statute with a rule – even if the two said roughly the same thing – raises interesting constitutional questions that, if they occurred to the court, are deftly hidden.
We may be having an off day; we’ve read the twenty pages the court takes to reach this conclusion more than once and still can’t figure out how a law that the person who wins gets fees can logically mean, or was intended to mean, that the person who gets fees wins.
(link to opinion)
In the Matter of Thomas, et al. (Presiding Disciplinary Judge)
This is not an appellate opinion but we’re moved to comment because so many people are already talking about its style.
There was a time when trial judges knew and enforced the forms and conventions of findings and conclusions. Those days are long past. Calling a finding a conclusion, or vice versa, could earn you a mild rebuke from a good judge; nowadays it is so routine that often, as here, there is no attempt at distinction.
Also routine is the inclusion of random thoughts, observations, and other pearls of wisdom that aren’t either one but that the writer just can’t leave out. The PDJ’s excuse is presumably that Rule 58 calls for a “report” that “includes” findings and conclusions, so his office can throw in whatever else it pleases.
But should it?
This opinion is the problem in its most acute form. The thought that extraordinary subjects demand extraordinary responses, even to the extent of drawing upon the divine and the classics, is hardly unique:
I thence invoke thy aid to my advent’rous Song, that with no middle flight intends to soar . . . while it pursues Things unattempted yet in Prose or Rhyme . . .
What in me is dark illumine, what is low raise and support; that to the height of this great Argument I may assert Eternal Providence, and justify the ways of God to men.
The problem with enlisting the Almighty is that He (or She, or Whatever) is – for reasons that do not entirely passeth the understanding – more likely to respond to Milton than to your local lawyer/judge/bureaucrat. Heroic efforts that fall flat may deserve to be praised but are instead laughed at, as is happening to this opinion.
And that’s a bad thing, for more than one reason.
First, the laughing is not only at individuals but also at the institution – the PDJ’s office and, by extension, the Court. Yet the point of the thing – of throwing out the old scheme and replacing it with the PDJ apparatus imported from Colorado – was to strengthen faith in and respect for our policing system.
Second, and worse, a thing like this can produce not only laughter but suspicion. A legal tribunal is supposed to be above the fray, to be impartial no matter how contentious the issue. Writing a dark-and-stormy-night melodrama – complete with heroes, villains, faux-Greek tragedy, and elaborate moral judgments – signals the opposite. It suggests a tribunal joyously leading the charge for what it obviously considers the emotionally satisfying result. PDJ panels can talk about their “sui generis” mission all they like but sui generis partiality is still partiality. We do not suggest that these gentlemen lacked impartiality. But their form of expression does their case, and their office, and our profession, no good at all.
(link to opinion)
D’Amico v. Structural I (CA1 4/3/12)
This employment case raised several issues, addressed in this opinion and a memo, but only a point about the psychologist-patient privilege is of much general interest.
Mr. and Mrs. McLeod owned Structural I, a framing contractor. They wanted to transition out of running the business. Their counselor – a registered social worker they were seeing about various issues – suggested that they hire D’Amico for a few years as a “bridge CEO.” They did, then feuded with and fired her; she sued, won at trial, and Structural I appealed.
(The main lesson here is not to rely on your social worker to advise you on who should run your construction company.)
The counselor testified at trial about her sessions with the McLeods. Structural argued that this violated the psychologist-patient privilege. (D’Amico didn’t argue that the counselor didn’t qualify since she wasn’t a psychologist.) The Court of Appeals rules that Structural doesn’t have standing to raise the issue because the privilege belongs the McLeods.
Which raises the question of what happened here. Under the statute, the psychologist-patient privilege is like the lawyer-client privilege: the psychologist can’t divulge the info without consent. But evidently this counselor did. Or did she think she had consent because the lawyer for the McLeod’s company was at her deposition, for example, and didn’t object? Does that make a difference? Did that lawyer object – and if not, why not? Why didn’t the McLeods write the counselor early on, instructing her not to say anything?
Too many unknowns to draw any conclusions. But it sounds like a problem that should have been nipped in the bud rather than after it had grown into a problem at trial/appeal.
(link to opinion)
Estate of Lewis (CA2 3/29/12)
As we’ve shown before, some cases aren’t content to reach the right appellate result; they try to ensure the “right” trial-court result, too. Others tackle head-on the easy issues and sidestep the harder ones. This one does both.
Simon Lewis objected to the informal probate of Frances Lewis’ estate and sued its executor, Mark Lewis. The court ordered Simon, who lives out of state, to appear personally for a pretrial conference. Never he nor his counsel did, though, so the court called counsel, who said he was ready to proceed telephonically and didn’t know why Simon wasn’t there. He also gave an excuse about why he hadn’t filed a response to Mark’s counterclaim, which was due before the pretrial conference. So the court struck Simon’s pleadings and gave Mark relief on the counterclaim. Counsel then filed an motion for reconsideration, admitting that he wasn’t ready after all because of some disruptions in his practice and that Simon was indigent and couldn’t come. Then Simon himself filed something saying that counsel hadn’t told him to come. The court denied these, whereupon counsel withdrew and Simon appealed pro se.
Mark argued that as to “certain aspects” of the matter there was no final judgment. “Given the overlapping subject matter of the original probate proceeding and the claims and counterclaims presented, as well as the consolidation of all proceedings below, we conclude we have jurisdiction to review the entirety of the court’s . . . order.” So, you’re clear on why the Court of Appeals has jurisdiction, yes? Maybe so, but when something like this looks like its being swept under the rug, it too often is.
Simon argued that the whole thing was his lawyer’s fault and that the court should have held a hearing to determine that before sanctioning him.
The Court of Appeals begins by discussing the background of Rule 16, for reasons not clear since nobody argued that the trial court didn’t have the power to order Simon’s personal appearance at a Rule 16 hearing. (Although in this regard the court notes in passing Armstrong v. Hooker, a much more important case that all litigation types should know.)
Severe sanctions such as dismissal are improper unless there is willfulness/bad faith/gross negligence. The trial court has to hold a hearing on this. The pretrial conference didn’t count as that since Simon couldn’t explain himself and it didn’t determine where the fault lay.
That’s enough to decide the case but the court apparently fears that it isn’t enough to change the result, so it goes on to say that under these facts dismissal wouldn’t be appropriate even if Simon had known of the order to appear. Throughout, the court is careful to signal to the trial judge what his findings should be on the hearing he hasn’t held yet.
And the opinion also suggests that the trial court’s failure to award Mark his costs — the opinion does not suggest that he asked for them – is another reason why the order in his favor should be set aside. If noncompliance is not “substantially justified,” according to a 1984 Bar committee note, the judge should award fees; so, you see, failure to award fees doesn’t mean that the judge was trying to give Simon a break, it means that he either thought Simon justified or wasn’t thinking. (This smells so strongly of midnight oil that we wonder whether it was non-lawyer Simons’ idea or the court’s concoction.)
As to giving Mark judgment on his counterclaim, default judgment is another thing about which, when there’s an issue, you need a hearing to see whether the lawyer or the client was the culprit. You also need a hearing for default after an appearance, which Simon had done through counsel. And you need a hearing on damages. The court makes this all sound like a slam dunk by ignoring the fact that the trial court referred to it not as a default but as a waiver. Is there a difference? That’s the question, the answer to which the court assumes rather than explains. (It may be, though, that Mark argued it that way.)
Lastly, Mark argued that there were other reasons, not cited by the trial court, justifying sanctions. The opinion doesn’t say whether he argued those below and lost or didn’t argue them there at all. Either way, he loses them on appeal. But instead of saying that the court explains factually why they shouldn’t result in severe sanctions.
The court concludes by telling Simon what to do at the hearing: appear, present evidence, and call your former lawyer to testify.
(The opinion goes out of its way to identify that lawyer repeatedly. An earlier age would have avoided this, on the theory that he doesn’t deserve possibly-unjustified blame or what is in any event pointless public humiliation. Why do the courts think their modern lack of decorum an improvement?)
(link to opinion)
Thomas v. Montelucia Villas L.L. C. (CA1 3/27/12)
An interesting aspect of the law of anticipatory repudiation.
The Thomases contracted to buy a house Montelucia would build at its luxury resort in Scottsdale. The contract provided, as usual, that if the seller had not complied with a term then the buyer could give it a certain amount of time to remedy the problem and then cancel the contract. Just before closing the Thomases refused to go through with the sale, and demanded the return of their earnest money, because some of the resort’s amenities weren’t done and because a certificate of occupancy for the house hadn’t been issued. Montelucia refused to return the earnest money; the Thomases sued; Montelucia countersued, for specific performance. They both moved for summary judgment on the Thomases’ claim; the trial court granted the Thomases’ motion. Montelucia appealed.
The Court of Appeals reverses. It concludes that what the Thomases did was an anticipatory repudiation. They didn’t have a contractual right to cancel without giving Montelucia notice and time to remedy.
That raises the next question: whether Montelucia was ready and able to perform. There was a dispute about this. But “the law does not require the non-breaching party to prove it was able to perform . . . unless it is seeking damages” or equitable relief. “This appeal concerns only Montelucia’s defense to the Thomases’ claim for damages, not a claim by Montelucia for any affirmative relief.” “Once the Thomases repudiated . . . Montelucia was no longer obligated to do anything more . . . ” In other words, proof of ability to perform was an element of Montelucia’s claim against the Thomases, not of its defense to their claim.
The court remands for the entry of judgment against the Thomases on their claim. It sets aside the trial court’s award of fees and costs to them and allows the trial court to determine where fees/costs should lie after final judgment. The immediate result is that Montelucia keeps the Thomases’ $659,000 in earnest money.
We know nothing else of this case. You can perhaps read between the lines and judge for yourself whether the Thomases made a bad legal mistake, were desperately trying to avoid closing on a home they could no longer pay for, or both.
(link to opinion)
