Rasor v. Northwest Hospital (10/18/17)

We blogged the Court of Appeals Opinion here; go there first.

The Supreme Court affirms that the witness was not qualified as a standard-of-care expert: “We . . . hold that, pursuant to § 12-2604, an expert is unqualified to testify on standard of care if she did not engage in active clinical practice or teaching during the year immediately preceding the injury.” And it affirms the challange: “We hold that a defendant may move for summary judgment based on a proposed expert’s lack of requisite qualifications under A.R.S. § 12-2604 without first challenging the sufficiency of the expert affidavit under A.R.S. § 12-2603.” “[T]he proper recourse for a plaintiff whose expert’s qualifications are challenged for the first time in a summary judgment motion is to seek relief under Rule 56(d).”

However, the court vacates the portions of the Court of Appeals’ opinion remanding to allow Plaintiff to find a new expert. Its own disposition might allow that — the court says that that was justified because prior decisions on the relationship between 2603 and 2604 were in conflict and because the trial court had repeatedly told Plaintiff that she could use the expert on standard-of-care. But it adds a wrinkle. There were quesitons, apparently argued in the Court of Appeals, about whether a causation expert was necessary and, if so, if Plaintiff’s expert qualifed as such. The Supreme Court remands to the Court of Appeals to decide those things. If an expert is necessary and Plaintiff’s doesn’t qualify then the Court of Appeals “should affirm the trial court’s grant of summary judgment.” Otherwise, that court “should remand to the trial court to provide Rasor an opportunity to file a Rule 56(d) motion and for any other appropriate proceedings.”

(Opinion: Rasor v. Northwest Hospital)

Flynn v. Campell (9/22/17)

We blogged the Court of Appeals’ opinion here; go there for the details.

The Supreme Court comes to the same conclusion but vacates that opinion. It says the two things that needed to be said: 1) “we first ask whether the defendant rather than the plaintiff knew or should have known that, absent some mistake, the action would have been brought against him or her” and 2) “We hold unrepresented litigants in Arizona to the same standards as attorneys.”

(Opinion: Flynn v. Campbell)

McCleary v. Tripodi (CA2 8/29/17)

This is a quiet-title action arising out of some probate shenanigans but we won’t be reviewing that part. Instead we’ll look at the appeal.

The trial court issued a minute entry granting summary judgment in favor of Plaintiffs. Defendant filed two motions to reconsider and then, before they were heard, appealed the minute entry. Plaintiffs moved to dismiss the appeal since it was screamingly defective. But instead the Court of Appeals reacted by staying the appeal until the trial court could sign a judgment. Now it issues this opinion affirming.

The court concludes its summary of the proceedings below by saying “We have jurisdiction for the following reasons. A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1); Ariz. R. Civ. App. P. 9(c).” (The period after “reasons” is in the original but we won’t make an issue of a simple typo because we can understand how the difference between a colon and a period can slip through the edits, reviews, and corrections that are such an important part of the court’s process.) But next the court points out that it has a duty to check its jurisdiction and then pends four pages explaining why it has jurisdiction. So the sentence with the typo was apparently boilerplate and doesn’t really fit this opinion. What did we say about edits and reviews?

But it does make you wonder. If the jurisdiction issue is so simple that it could be solved with the usual kick-it-back-to-the-trial-court-for-a-signature routine then why does it merit extended discussion here? If it isn’t, did the court think it through first or was its act the knee-jerk reaction of a staff attorney or other functionary and this opinion an after-the-fact justification?

The appeal was obviously premature. The first question is whether Barassi applies. The answer is that it can’t because there were two pending motions.

So the question becomes the meaning of Rule 9(c) (premature appeal treated as filed on day of judgment). Following Camasura (App. 2015), the court decides that it does apply to save the appeal. The order appealed from disposed of all issues and “the trial court ultimately entered final judgment upon it.” And what of those pesky motions to reconsider that came between the order and the judgment “ultimately” entered? They don’t matter because they didn’t change the issues, just the arguments. And because the trial court “summarily” denied them (we’re not told what exactly that meant in this case) the original order was the same one judgment was entered on.

Oh. Okay. So a motion that doesn’t modify the issues invokes 9(c) but one that does doesn’t. As long as its denial was summary. These things will always be clear in practice. After all, as the court points out, one of the reasons for rules like 9(c) is “to accommodate a ‘litigant’s confusion’ about when to file.” We would have suggested that accommodating confusion simply creates more of it but that’s just us.

One thing we’re not clear on, though. The trial court denied the motions for reconsideration after the appeal was filed and before the Court of Appeals revested jurisdiction to get a final judgment. So how did it have jurisdiction to rule on them? And if they’ve never properly been ruled on, how can an appeal lie? Or does 9(c) now mean that a premature appeal is not an really an appeal at all, that it has no effect until judgment is entered? But if that’s true, how does the Court of Appeals have jurisdiction that it must “revest” in order to get a judgment?

In the words of an immortal: Go away, kid, you bother me.

(Opinion: McClearly v. Tripodi)