Jensen v. Beirne (CA1 12/6/16)

This is a domestic case but deals with the time limit on judgments.

The parties divorced in 2005. At that time the court entered an order disposing of their properties in England, including one known as the “Hadley Highstone property.” (Irrelevant point of possible interest: Hadley Highstone is an area of Barnet, which is nowadays a North London borough, that’s named after a local signpost.) The order wasn’t carried out and the court entered a subsequent order in 2008. That wasn’t carried out, either, and so in 2015 Husband filed another petition concerning it. The trial court dismissed it, ruling that since the decree and related orders hadn’t been renewed they had lapsed after five years, 12-1551, and so it lacked jurisdiction to enforce them. Husband appealed.

If you’re wondering at this point whether you needed to renew your divorce decree, you don’t. 12-1551 “applies to judgments or decrees for payments of specific amounts of money or judgment liens,” not divorce decrees. The statute “applies to judgments upon which execution or like process may be sought” whereas “enforcement of dissolution decrees, typically through the contempt power, is generally predicated upon the equitable power of the family court.” What happens in cases other than the typical or general the court doesn’t say.

The court also says that even if the statute did apply the five years hadn’t begun to run. The statute does not begin to run until the occurrence of an event that could give rise to an action on the judgment. The trial court had ordered Wife to do certain things but hadn’t set a time limit; Wife had never done them. Husband argued that because there was no time limit he couldn’t sue her for for not doing them.

If that logic sounds a little soggy, it may perhaps be that the second argument is really just a sub-species of the first. In any event, the problem is that this is yet another case in which the court issues precedent on an issue of law based on incomplete briefing. Wife didn’t file a brief. And apparently neither party argued these issues below; the trial court seems to have raised them sua sponte in its order of dismissal. But the court continues to feel that merely because the issues haven’t been joined is no reason they shouldn’t be published.

(Opinion: Jensen v. Bierne)

St. George v. Plimpton (CA1 11/29/16)

Affirming summary judgment in a malpractice case for not having proper expert evidence. This is the published version of a memorandum that came down earlier this month. The court granted a request for publication; not sure why this is publishable except perhaps for the part about midwife regulations.

Plaintiffs Wife was allegedly injured during the birth of her child. Plaintiffs sued their OB and the nurse-midwife who assisted him. Based on the discovery testimony of Plaintiffs’ expert the trial court granted Defendants summary judgment. Plaintiffs appeal.

As to the doctor, the expert said at deposition that he didn’t fall below the standard then “corrected” the depo to say that he did by not having the nurse “working under . . .  a set of protocols to appropriately monitor patients.” (The Superior Court refused to strike that and apparently that ruling was not appealed.) The court says that the correction “does not specify how [Defendant] allegedly breached the standard of care.” Plaintiffs argued that the expert had said enough at depo to establish an inadequate-supervision claim. The court says that they didn’t allege this separately, that it was part of the malpractice claim, that thus there had to be expert evidence of a breach of standard, and that even the correction letter “did not state what standard of care applied to [Defendant].” As to whether and under what circumstances there can be a negligent-supervision claim against a doctor for supervising a nurse that isn’t subject to the med-mal statutes, the court doesn’t say.

As to the nurse, Plaintiffs argued that she was negligent per se for violating some unspecified Arizona midwife regulations. But the nurse was a registered RN subject to the nursing statutes, not licensed under or subject to the midwife statutes. Plaintiffs argue that the midwife statutes apply to “a person who delivers a baby or provides health care related to . . . labor” and should therefore cover the nurse. The court says that this “would lead to absurd results” such as making midwife regs binding on the OB. Plaintiff’s OB expert criticized the nurse but his opinion was not sufficient under the statute since he was not a nurse.

Much of the opinion is spent describing the factual reasons why the trial court did not abuse its discretion by refusing to give Plaintiffs extra time to find a nurse/midwife expert. Basically, Plaintiffs argued that the statute wasn’t clear on whether they needed a nurse expert and the court points out that the cases clarifying that had come down months before the Plaintiffs’ deadline.

(Opinion: St. George v. Plimpton)

Stafford v. Burns (CA1 11/29/16)

The court manages to address questions of emergency medical standard of care and “reasonable” offers of judgment by taking liberties with the question of jurisdiction.

Plaintiffs’ son  died of a methadone overdose. He had been evaluated and released from the ER but was found dead the next day. Plaintiffs sued the doctor who released him. The jury found for Defendant; Plaintiffs appeal.

The Court of Appeals first announces that it has no jurisdiction. Plaintiffs had filed motions for new trial and for relief from judgment; the trial court denied the first by signed order but denied the second in an unsigned minute entry. Since that left the relief-from-judgment issues dangling the Court of Appeals kicked the case back to the trial court to get a signed order but for some reason one was never entered. The opinion doesn’t explain why not, nor how the case got back up without one.

But the court then decides to treat the matter as a special action because it raises “issues of first impression and statewide importance likely to recur.” This is startling. The court has discretion to do this but uses it in special situations, as when tangled procedure interferes with the ability to appeal. To use it in a fairly typical failure-to-get-a-signature situation lets the exception destroy the rule. But the court does not want “to elevate form over substance.” So now jurisdiction is just a matter of form? “Additionally,” the court adds, “ were we to dismiss the appeal, nothing that may occur in the trial court would likely alter the disposition of the issues raised.” What does that mean? What is going to occur in the trial court (the opinion cites a case in which some issues had not been tried and could be raised again)? If anything could possibly “alter the disposition” – much less when things are merely not “likely” to do so — then why review the case now?

The first issue that the court finds it absolutely necessary to decide for posterity is whether under the facts of this case A.R.S. 12-572 applies. This sets a clear-and-convincing standard for medical providers acting “in compliance with the [federal] Emergency Medical Treatment and Labor Act.” Plaintiffs argued that it only applies until the patient has been either evaluated as not being an emergency or stabilized sufficiently for transfer. The court says: “This sort of interpretation is not practical in the context of . . . emergency medical care. The evaluation and treatment . . . is necessarily a fluid process . . . particularly . . . where the condition qualifies as an emergency under EMTALA – manifesting through acute symptoms, severe pain, and the risk of serious dysfunction or bodily impairment.” “We hold . . . 12-572A applies whenever the acts or omissions . . . were provided in the course of evaluating and treating a patient in a hospital emergency room.”

After disposing briefly of several fact- and case-specific issues the court gets to the other issue it wanted to write about. Defendant had made a $10,000 offer of judgment. Plaintiffs, citing a Seventh Circuit case interpreting the federal rule, wanted this disregarded because it was “no-risk” offer not “at least arguably reasonable . . . compared to the lawsuit’s probable damages.” But the Seventh Circuit holding was specifically limited to Title VII cases and was based on based on federal civil rights policy. The Arizona rule, which allows either side to make offers, is intended to promote settlement and its provisions are “mandatory and punitive.” The rule contains no “reasonableness” requirement. Inferring one would increase litigation by adding a dispute about reasonableness to every case in which an offer is made.

So the court accepts jurisdiction and denies relief. And that’s the kicker. The court took this case not because it had appellate  jurisdiction and not because doing justice for these parties required some form of review. It did so simply to announce law on a couple of issues it found amusing. By doing so it establishes that it can use the shoehorn of “special action “ to make jurisdiction a matter of discretion. 

(Opinion: Stafford v. Burns )