How many principles of appellate law can you violate in one case? As many as you please, if you’re the Supreme Court.

This case came before the court on petition for review of a special-action decision of the Court of Appeals. The lawsuit is a class action against the City of Phoenix. By statute, lawsuits against governments and government employees require that a notice of claim be presented first. The issue here was how the notice-of-claim requirement applies to class action. The statute requires that the notice include an amount for which the case can be settled; a claim can’t be settled for a class until the class has been certified, people have been allowed to opt out, etc.

The court came rather easily to the common-sense conclusion that the notice must contain a settlement amount for the claim of the individual claimant who proposes to sue on behalf of a class.

What caused the court trouble was to figure out how to rule for the claimant even though she didn’t do that.

Its solution was to decide that the City had waived the defense. The problem with that is that the trial court had already found that it hadn’t. That was a finding of fact. If you thought you knew appellate law, until now you believed that a trial court’s factual finding must be accepted unless no substantial evidence in the record supports it; that the finding will not be overturned unless it is clearly erroneous; that the reviewing court must examine evidence in the record on both sides of the question to determine this; and that the reviewing court should normally defer to the trial court even when it is in as good a position to judge the matter as the trial court (e.g., when the credibility of witnesses is not at issue). (If you don’t claim to know appellate law, trust us: a whole bunch of cases say this sort of thing.)

So how did the court handle this? It cited the evidence in favor of a waiver and then said

Typically, waiver is ‘a question of fact’. [citation omitted] But in this case, waiver by conduct is apparent from the extensive litigation record below.

That may be “apparent” from the facts the court chooses to mention. But if there weren’t any other facts, how did the trial judge decide otherwise? Was there no evidence to support him? The court does not say. Was there evidence that the court did not find “substantial? The court does not say. Was the finding clearly erroneous? The court does not say. And what of the deference due the trial judge? You guessed it.

The new doctrine of “apparent error” is not the only interesting novelty to this case. The waiver issue was not raised in the Court of Appeals. So how can the Supreme Court reach down to pull up an issue from the trial court? Because if it were to rule only on the issue before it, then, after remand, if the trial court were to enter judgment for the defendants, if the case were not settled, and if it were not otherwise resolved, then “an appeal would undoubtedly ensue” that would raise the waiver issue.

If you thought that special actions did not address issues that could be raised by appeal, as the cases say, and if you thought that appeal was not to be assumed, as the cases say, then you, too, are apparently in error.