The Arizona Republic Party obtained review of the trial court and court of appeals decisions to award fees against the Arizona Republican Party and its attorney. The ARP had challenged the hand count procedure for testing ballots in Maricopa County.  That challenge was dismissed for procedural reasons including naming the wrong defendant, requesting the wrong relief, and being late. The lower courts based their decisions on A.R.S. 12-349(A)(1) and (F) which allows an award of fees if a party “[b]rings or defends a claim” without substantial justification, i.e., “groundless and is not made in good faith.”

Judge Lopez authors the court’s opinion, exemplifying his style: plodding, long sentences, interspersed citations, unnecessary prepositional phrases and explanations. He cannot help himself. This sogginess spoils his reasoning. The opinion is 22 pages; it should have been 12. The court agrees that petitioners should have named the Secretary of State instead of Maricopa County, but the requested relief (mandamus) was available, and while ARP could have raised the pre-election procedure earlier, this was not fatal to their challenge. None of this is categorically frivolous. As for “good faith,” whether a lawsuit “is not made in good faith” is not the same as subjective bad faith. The standard is an objective and not a subjective test. The paragraphs worth reading are 38, 40, 44, 48, and 49. Here, the court sets the standards while scolding the lower courts for their arrogance.

link to opinion

Inscription Canyon Ranch prevailed in a declaratory judgment action filed by Talking Rock Land. In a separate memorandum decision, the court of appeals affirms. This opinion concerns Canyon Ranch’s fee award. After prevailing on summary judgment, Canyon Ranch asked for almost a million dollars in fees and was awarded $700,000. Canyon Ranch appeals this ruling and contends the trial court’s reduction was an abuse of discretion because the trial court did not expressly find which fees it believes were excessive. The court of appeals holds no such findings are required so long as the record reflects a reasonable basis for the trial court’s decision. A prior decision, McDowell Mt. Ranch Cmty. Ass’n v. Simons, 216 Ariz. 266 (App. 2007), does not impose such a requirement although it circumscribes a trial court’s discretion. (We usually see a discussion on China Doll, but it is not cited here. We are also of the mind the law is settled on this.) The trial court also did not err when relying upon Talking Rock’s proportionality argument, pointing out block billing, and time spent on other cases. Finally, Talking Rock asserted its own fees were merely $400,000. While the better practice when making such a challenge is to provide details for comparison such as comparable tasks, hourly rates, etc., there was still no abuse of discretion. For anyone wondering, the court of appeals awarded additional fees against Talking Rock in its memorandum decision.

here is the link

Someone wasn’t paying attention in tort class. But then again, Cardozo and Andrews’s views in Palsgraf compete not only with each other, but hundreds of cases since including the Arizona Supreme Court’s decision in Gibson v. Kasey.

Perez tripped and fell over a case of water at the end of an aisle. She admitted if she would have looked down, she would have seen it. The court of appeals affirms summary judgment by focusing on “duty.” The court holds that whether a duty exists depends on a relationship and the presence of “an unreasonable risk of harm.” In determining duty, the court determines the legal relationship and the “reasonableness of the circumstances as necessary in determining duty.” The court of appeals decides there is no duty because the case of water was not unreasonably dangerous.  What? Let’s assume that the trial court decided differently and held there was a duty. What would the defendant say about that? Isn’t the court of appeals doing what it says it cannot do: defining duty in terms of foreseeable risk. The concurrence has a better analysis. The issue is breach and not duty.

here is the link