Wyckoff v. Mogollon Health Alliance (CA2 8/22/13)

Division Two’s rare ventures into the field of published civil law often afford opportunity for snarky comment, though this time they’re as much about the lawyering as the judging.

Wyckoff sued her former employer Mogollon claiming that mold in the workplace made her sick. Mogollon defaulted but successfully moved to set aside the resulting judgment; it then won summary judgment based on the statute of limitations.. Wyckoff appealed both rulings; the court affirms.

On appeal Mogollon argued that the Court of Appeals could not consider the order setting aside default because it was an unsigned minute entry. But there was a final judgment – the summary judgment – and so the court takes jurisdiction of all related orders.

Mogollon also made an abatement argument regarding delay in serving the Complaint but had forgotten both to plead it and to argue it in the trial court.

(In other words, much of Mogollon’s brief was wasted in useless silliness. But what else is new? Courts have been complaining about this sort of thing for at least 100 years. Criticize judges as you will but the poor saps must spend much of their time reading brain-dead arguments that some lawyer charged a lot of money to make. Will the profession never have a serious talk with itself about why lawyers, even respected lawyers, continue to do these things?  You know the answer to that.  If the medical profession operated with the efficiency of the legal profession, we’d all be dead.)

Wyckoff argued that the trial court was wrong in finding the default judgment void, not voidable. But guess what? She hadn’t argued it below.

On the statute of limitations Wyckoff argued the discovery rule. The court spends a long paragraph explaining what that novel, abstruse concept is. In then tells us that “Arizona courts have not addressed the issue of the discovery rule in the specific context of toxic mold exposure.” But the court has read a lot of mold cases from other jurisdictions and “a general rule emerges”: the cause of action accrues when “the claimant experiences physical signs and symptoms of illness, knows that she has been exposed to mold, and knows that mold may present a health hazard.”

So, is this a special rule for mold? If so, why does mold need a special rule? How does it differ from the usual discovery rule? Or is it merely the application to these facts of our normal discovery rule? And if so, why not say that rather than pretend that mere Arizona law isn’t good enough for mold?

(The judges who read those brain-dead briefs always believe that their opinions are of higher quality.)

Although her doctors were at first unsure of the cause of her problems Wyckoff suspected mold even before she retired, which was more than two years before she filed. Judgment affirmed.

We’ll assume that the court published this as a reminder of the scope of its jurisdiction over final judgments, the unfortunate but more likely alternative being that it thought it was making some contribution to the discovery rule.

(link to opinion)