Starr Pass Resort v. Harrington (CA2 10/10/18)

This problem with supersedeas bond law has been fixed but the fix isn’t effective until January 1, 2019. So the court accepted this special action to address the issue.

Defendant lost below (we simplify a bit; there were many parties to this lengthy and complex case). They sought to file a property bond (i.e., a supersedeas bond secured by property rather than a cash bond). Salt River (App. 2009) concluded that this was permissible under prior ARCAP 7, which allowed the court to alter the amount and conditions of the security. But then, in 2011, the legislature passed 12-2108 specifying the amount of supersedeas bonds and in response Rule 7 was amended effective 2012, leaving out the language that Salt River relied on. So Plaintiff argued that the trial court could not allow a property bond. The trial court agreed. Defendant filed special action.

The Court of Appeals accepts it and grants relief. The present rule permits the trial court to “enter any further order, in lieu of or in addition to the bond, which may be appropriate to preserve the status quo . . .” (The court for some reason also cites similar language from the 2012 version of the rule, which was replaced almost three years ago. In fact, it cites the old language first and seems to treat the new as more important that the old.)

The court also concludes that Rule 7 is consistent with the statute. The statute “provides the method necessary for calculating the amount of the bond” but does not require that it be in cash. And the statute was arguably intended to make supersedeas bonds easier, not harder. (The rule may actually go beyond the statute a bit but its effect is to add some old-fashioned flexibility around the edges, for cases that the statute’s Procrustean formula doesn’t quite handle.)

Effective next year the rule will expressly permit “other types of security.”

(Opinion: Starr Pass Resort Developments, L.L.C. v. Harrington)

 

 

Doneson v. Farmers Insurance (CA2 10/3/18)

This little insurance case is interesting mostly for its reminder about the parol evidence rule. It has also that rarest of things, a good footnote.

Plaintiff was injured in a car accident. Workers comp paid part of his medical bills but he had to repay that amount, per the workers comp statute, when he recovered from the third-party tortfeasor. He sought med pay from his own carrier, Farmers. Farmers denied the claim because its med pay provision excluded “bodily injury . . . during the course of employment if workers’ or workmen’s compensation benefits are required.” Plaintiff sued, arguing that since he had to repay the benefits they were not “required.” The trial court granted Farmers’ motion to dismiss. Plaintiff appealed.

The Court of Appeals affirms. It concludes that the policy language is not reasonably susceptible to Plaintiff’s interpretation. Plaintiff had a Nevada case dealing with an exclusion that covered workers comp “to the extent . . . required to be payable” by concluding that “payable” was ambiguous. But Farmers had a California case in which the exclusion said “payable or required to be provided” concluding that while “payable” alone might be ambiguous, “required” was not.

Plaintiff also argued that the trial court should have considered parol evidence. But under Taylor (1993) “the party seeking to introduce extrinsic evidence must show that the language of the contract is ‘reasonably susceptible’ to their proposed interpretation.”

There is one footnote in this opinion and, while we normally dislike them, this one is appropriate. Plaintiff tried to cite a trial court ruling in another case. The footnote points out that it “has no precedential value and we disregard it.” A slap on the hand is warranted but has no proper place in the text, thus the footnote.

(Opinion: Doneson v. Farmers)

 

Cook v. Grebe (9/11/18)

This little case, in addition to illustrating practice pointers about fee requests that apparently need  illustrating, is an example of how judicial fashion changes. Thirty years ago this opinion might have been tossed out in three pages, especially in Division Two. Ten years ago it would have taken twelve. This year it takes just over six, which is about right.

Plaintiff claimed adverse possession and also sued for a private nuisance. Defendant counterclaimed to quiet title and also alleged conversion, unjust enrichment, and trespass. Defendant won the adverse possession/quiet title issues, Plaintiff the rest.  (One of the ways the opinion saves space is to omit the underlying facts. They have nothing to do with the issue on appeal but even a few years ago that would not have prevented a factual recitation equally lengthy and useless.)

Defendant then moved for an $82,000 fee award under 12-1103 (quiet title). Plaintiff objected, arguing that Defendant wasn’t the prevailing party — that the case was basically a “draw” — and that she shouldn’t recover fees for claims Plaintiff won. The trial court found Defendant entitled to fees under 1103 and awarded $50,000.

The Court of Appeals affirms. Under 1103 “the determination of who is the prevailing party . . . turns on whether a party successfully quieted title, regardless of whether claims that do not involve quieting title are included in the same lawsuit.”

Now the practice pointers.  Fees under 1103 are discretionary — but the court notes that Plaintiff didn’t argue that. His argument wasn’t that, even if Defendant were the prevailing party, the trial court should use its discretion under these circumstances to deny fees.  (Is the court’s mentioning this the sort of we’re-smarter-than-you comment that we complained about the other day? Not really; the case discussed the court’s discretion and it’s fair to mention that the full extent of that discretion was not requested. And the court’s comment was, perhaps deliberately, worded in a slightly elliptical fashion.)

Instead Plaintiff argued vaguely that the amount of the request was unreasonable, without analyzing Defendant’s China Doll affidavit and pointing out which fees were unreasonable or unrelated to quiet title. Defendant showed nothing in the record to indicate that the trial court abused its discretion.

Of course the fact that the trial court awarded only about 40% of the requested fees killed this appeal once the prevailing-party issue was decided. What did Defendant say about that reduction? More of the above but also that it was arbitrary because “neither party argued for a 40% reduction.” Which adds a final practice pointer: any ill-considered idiocies floated in your brief or at oral argument will quite likely be used against you in an appellate court of law.

(Opinion: Cook v. Griebe)