Monthly Archives: June 2010

Estate of Braden v. State of Arizona (CA1 6/29/10)

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LATER NOTE: THE ARIZONA SUPREME COURT VACATED THIS OPINION

This court may have assumed too much about “assume.”

Braden was a disabled adult. The DES had placed him in a private nursing home with which it contracted to provide care for its clients. When he died in an accident at the home, his estate sued the State under the Adult Protective Services Act. Under 46-455B a vulnerable adult can sue for injury a person or entity employed to, appointed to, or having assumed a legal duty to provide care for him. The trial court granted the State summary judgment; this opinion reverses.

The State argued that the nursing home, not it, provided the care and was the proper defendant. But the nursing home’s care of Braden was monitored and regulated by the State through a care plan, a case manager, and the usual sort of handicapped/incapacitated child/adult regulations. The court held that this amounted to providing care.

The State next argued that it had not “assumed a legal duty” to provide the care because an assumption must be voluntary and it had not volunteered. The court held that the statute did not require a voluntary assumption and that the common meaning of “assume” did not necessarily require voluntariness. The latter conclusion was based on dictionary definitions of “assume” – all of which involve voluntary acts.

The dissent argued, based on detailed and extensive legislative history, that the State did not mean to assume the duty. This may not be a bad argument, though the majority is surely correct to prefer that the words of statutes mean what they say rather than what convoluted gloss and accretion might suggest. The core of the problem is the dissent’s understandable discomfort with the notion of a mandatory “assumption.” It is possible to “assume” a duty inadvertently but to do so other than by voluntary act gives a  new meaning to the word, one not even the majority was able to find in any dictionary. (And the whole “voluntariness” argument seems odd. Didn’t the State itself pass the statute? Didn’t the State create the regulations and bureaucracy? Hasn’t this court necessarily concluded that the legislature intended that those regs and bureaucrats “provide care?” Can you argue that something you did was involuntarily because you forced yourself to do it?)

In any event, the State also argued that the Act made the State immune. 46-455J requires that a Plaintiff give the state notice of the claim but says that this does not authorize naming the State as a party. The court held that the statute simply means what it says – that giving notice to the State does not itself authorizing suing it – and that an action against the State can be brought if there is an independent legal basis for it.

Finally, the State threw up half a dozen or more policy reasons why the statute shouldn’t apply to it, apparently hoping that at least one of them would stick; none did.

(link to opinion)

County of La Paz v. Yakima (CA1 6/22/10)

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A 48-page opinion about . . . well, the court calls it “sewage sludge.”

This is a long civil opinion and so we write this just to assure you, if you noticed the case, that no, we didn’t miss it and no, there’s nothing interesting in  it. The County filed an every-issue-you-can-think-of appeal after filing every motion it could think of before, during, and after losing a contract case at trial. The Court of Appeals humored it by addressing them all at length before affirming. The opinion mostly concerns factual details of a contract for the processing of the aforementioned. The issues of law are no-brainers except that the RAJI instruction on waiver isn’t good – it can, as the County argued, let a jury think that a waiver can be accidental; with everything else going against the County, though, this issue got short shrift. That’s what happens when you throw the kitchen sink into your briefs.

Why is the opinion 48 pages long? Well, the whole case was similarly overblown; for example, the opinion at one point mentions “Exhibit 656.” We haven’t seen the briefs but we’d be willing to risk a modest wager that at least one of them was approximately nine million pages long. Courts sometimes seem to feel that unless they produce a huge opinion somebody will think they haven’t read the huge briefs. And courts, like clients, can mistake lengthy and heavy briefs for lengthy and heavy legal thinking. Finally, a government was involved here; as we’ve mentioned before, courts will do things for governments that they won’t do for you and me, even if that simply means considering at length arguments that may not really merit it or, for that matter, be worth what Yakima was processing.

(These lawyers must have made a ton but maybe they earned it; Parker’s not a bad spot at the right time of year, and the courthouse is a pleasant little complex, but there’s nowhere as near as Blythe that we’d want to stay at long enough to try this case. The BlueWater Resort, you say? Have you tried to eat its buffet?)

 

(link to opinion)

Perry v. Ronan (CA1 6/22/10)

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In this special action the Court of Appeals thinks it has found a new wrinkle in the law of contracts.

Perry sued Bennett (Ronan was the trial court judge). At mediation, Perry agreed to settle for $400,000 but Bennett didn’t. Bennett later told his lawyer to tell the mediator that he would pay that after all if Perry agreed to the settlement by a certain date, which was five days later. The lawyer told the mediator of Bennett’s change of heart but for some reason didn’t mention the deadline. By the time the mediator told Perry’s lawyers that Bennett would pay the money – to which Perry promptly agreed – the deadline had passed. Bennett refused to settle.

Perry moved to enforce the “settlement agreement.” The trial court denied the motion and set the case for trial. Perry took special action, which the court accepted on the grounds that this is an issue of first impression and of statewide importance.

Perry relied on Restatement (Second) of Contracts §49, which says that when communication of an offer is delayed, “if the delay is due to the fault of the offeror or to the means of transmission adopted by him, and the offeree neither knows nor has reason to know that there has been delay, a contract can be created by acceptance within the period which would have been permissible if the offer had been dispatched at the time that its arrival seems to indicate.” That means, says the court, that acceptance after a deadline is possible if the offer is delayed. Perry therefore had five days to accept the offer, its acceptance was within that period, so there was a settlement contract.

Perhaps. That does, though, assume the conclusion. It also changes the facts. Bennett didn’t say “five days”; he said acceptance had to be made by a certain date. What if he actually meant it? What if, for example, he had a deadline of his own from other creditors and after Perry’s deadline passed had to pay all his money to someone else? Would that make a difference? Not to this court’s reasoning.

The court admits that neither of the only two other cases that cite §49 apply it as this opinion does. One case held that §49 didn’t apply because the offeree knew of the delay (the postmark on the offer letter told him).  In the other case, an offeror delivered an offer to the offeree after the deadline stated in the offer; the court ruled that by doing so the offeror waived it. Restatement §49, it said, applies only when the offer is made late but within the deadline (so that, for example, if the offer says “five days” and the offeree doesn’t get it until the fourth day but for some reason doesn’t know there has been a delay, the offeree still has five days). Our Court of Appeals thinks that the language of the section doesn’t say that – in which event it thinks that one can “extend” a deadline that has already passed, a position another court would not have been unreasonable to doubt.

This court also thinks it would be unfair if Bennett could refuse the settlement because he would then be able to negotiate further, knowing that Perry would settle for $400,000. But Bennett already knew that; he learned it at the arbitration. And how is that unfair? As far as these facts show, Perry would have settled for $300,000, or $200,000, or fifty cents. Doesn’t a factual conclusion require facts?

Bennett, according to the court, didn’t brief §49. So, the court accepted special action on an issue of first impression (viz., §49) and of statewide importance based on incomplete briefing. The court points out in a footnote that it could consider Bennett as having confessed error “but we decline to do so.” How magnanimous of it, not to decide an issue of first impression and of statewide importance by default. Now, you obviously shouldn’t be able to block your opponent’s special action by the simple expedient of not briefing the issues. But the court was really reaching to take this, and clearly did so because it thought it saw an easy solution that would make some law along the way.

What did Bennet brief instead? The question of authority. His argument (reading between the lines a bit) was that he never gave anyone actual authority, and no one had apparent authority, to settle the case after the deadline. The court mentions in a footnote that it need not address that argument because §49 solves the case.

But does it? Why didn’t Bennett brief §49? Well, we can only assume. We assume his lawyer realized that authority was the anterior question. §49 says nothing of authority (about which the Restatement is elsewhere quite specific). How does delay create authority or apparent authority? If there is an answer to that question then it was incumbent on this court to explain it – because if there isn’t, this whole thing is wrong.

 

(link to opinion)

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