Monthly Archives: October 2009

State v. Lychwick, CA1 10/22/09

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The other day we said that “Courts and lawyers have trouble counting.” We thought that case interesting because, despite our sarcasm, lawyers surely don’t trip over such basic principles too often. Do they? But here is another one,  this one with a bit of weird lawyering thrown in.

Lychwick was convicted of, basically, violating an injunction against harassment. Having been served with a one-year injunction on January 17, 2006, he waited until January 17, 2007 to harass again. He presumably thought this quite clever until he found out how lawyers count. He raised some hilarious alibis but primarily argued that the injunction had expired. The Court of Appeals pointed out, as we did the other day, that the first day is excluded.  January 17, 2007 was the last day of the injunction, not the first day after it.

The weird thing is that the State had made that argument in the trial court but changed its mind on appeal. It argued to the Court of Appeals that the injunction ran from 11:00 a.m. on 1/17/06 to 11:00 a.m. on 1/17/07. The court gently pointed out that the law measures time “by the calendar, not by the clock,” ignoring fractions of a day.

This is one of those (extremely rare) times when we have to admit ignorance – ignorance, this time, of whatever criminal or obscure-law analogue inspired the “11:00” argument. We have to assume that there is one; otherwise, making that argument about an injunction was just plain, well, weird. This counting stuff just ain’t that complicated.

Krasinski v. Goldstein (CA2 10/19/09)

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We often wonder why an opinion was reported; perhaps this memorandum should have been.

Krasinski sued Goldstein. Goldstein moved to compel arbitration pursuant to A.R.S. 12-1502. The court granted the motion and dismissed the action. Krasinki filed an appeal; the Court of Appeals dismissed it.

The catch is that the statute requires a court, when compelling arbitration, to stay the case rather than to dismiss it. No one, apparently, had pointed this out to the trial court. Since the court shouldn’t have dismissed, Division Two ruled that it didn’t: “the trial court’s order is not final and is instead an interlocutory order compelling arbitration.”

Which is the point of law that makes the case interesting. A dismissal, it turns out, may or may not be a dismissal. Its a dismissal unless it shouldn’t have been, in which case it wasn’t, in which case an error of law that the Court of Appeals normally exists to correct becomes a non-event. And the way to find out whether its a dismissal or not is to appeal it and see whether the appeal is dismissed. If it isn’t, you guessed right; if it is, you guessed wrong but can try again later. And if nobody seeks appellate relief, nobody ever quite knows what the order was – a bit like those sub-atomic particles that don’t quite exist until you look at them.

You can, actually, appeal an arbitration order, by including Rule 54(b) language in it. The court points this out and seems to say that Krasinski should have asked for that. Since 54(b) language in a dismissal makes no sense, what the court apparently means is that he should have read the statute and sought the right order in the first place, which is of course correct.

In fairness to the court, there is a problem here. You’re not supposed to be able to appeal an order compelling arbitration and you ought not to be able to get around that by inducing or allowing the court to enter the wrong order. But the answer is not to pretend that things are always what they should be in this, the best of all possible worlds. The answer is not to throw the very nature of court orders into doubt and debate. The answer is to recognize an indisputable error of law, vacate the dismissal, and remand with instructions to enter a stay.

Hammoudeh v. Jada (CA2 10/09/09)

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This is a case about discovery sanctions. In Seidman, 563 Ariz. Adv. Rep. 17, Division One held that the trial court can’t strike a pleading and enter default as a sanction without holding an evidentiary hearing to determine whether the failure to make discovery was the client’s fault or the lawyer’s. In this case, Division Two finds a way around that.

Jada bought a used car from Hammoudeh; the story seems to be basically that he sold her a clunker and sued her when she wouldn’t pay. She counterclaimed. He tried to stonewall discovery and, although sanctioned once, continued to do so.  At one point he personally attested under oath that his responses were true and correct to the best of his knowledge and belief; the opinion doesn’t say whether this was routine boilerplate on a discovery form or some sort of separate affidavit (in either event, it may mean that his lawyer was beginning to catch on and protect himself). When his lawyer withdrew, Hammoudeh did nothing to supplement earlier discovery. He did not claim, says the opinion, that his lawyer had prevented him from making proper discovery.

Jada moved to strike the Complaint. Hammoudeh didn’t file a response but showed up at oral argument to request an evidentiary hearing. The court denied this and held a default hearing, apparently on Jada’s counterclaim. It lasted a couple of days; Hammoudeh attended the first day but not the second. He made no offer of proof.

On this record the court observed that it was “apparent from the record, and undisputed, that Hammoudeh was personally aware of, and responsible for, the inadequate discovery responses.” Hammoudeh’s personal fault was “readily apparent from the record,” the trial court made a specific finding of it, and so the court could not “say the court abused its discretion in concluding an evidentiary hearing was not necessary to determine fault.”

A commonsense result:  if the fault is already on the record, you don’t need to hold a special hearing to put it there. Properly used, this exception will eat the Seidman rule.