This special action is about a supersedeas bond. After the next paragraph, though, we encounter an interesting thing.

Some homeowners sued for an injunction and damages to prevent a golf course from becoming an RV park. They won their injunction, $1 in damages – and over $2 million in costs and fees. Defendants wanted to appeal and the question became the amount of the supersedeas bond; the statute (12-2108)  and  rule (ARCAP 7) refer to “the total amount of damages” but also say that the trial court can set it in the full amount of the “judgment” if the appellee is dissipating assets, as these plaintiffs claimed (or reduce it in case of hardship, which the defendants claimed). So the plaintiffs emphasized the word “judgment” and wanted a huge bond, the defendants emphasized “damages” and wanted a $1 bond.

The interesting thing is that this also describes an essentially identical special action taken by the same parties last year. The trial court had ordered the $2 million bond and the defendants took special action. The Court of Appeals kicked the case back to the superior court because the trial judge hadn’t held a hearing. It specifically refused to decide the “damage”/”judgment” question because the parties hadn’t made below the same arguments about it that they briefed for the special action.

So guess what happened: the trial judge held a hearing and decided that he was right, though on hardship grounds he reduced the bond from $2 million to half a million. And the defendants decided that, even so, they would rather have a $1 bond. So they filed another special action to get the “damage”/”judgment” issue finally resolved.

The Court of Appeals takes de novo review of this question of law and decides that the answer is $1. “Judgment” and “damages” mean two different things; damages can be part of a judgment but judgments are not damages.

In a footnote the court also criticizes two procedural errors the trial court made in calculating the bond. These are of course inconsequential given this ruling. And so the last sentence of the footnote says “But because we are remanding the matter for the court to set the bond at $1.00, these errors are inconsequential.” Now, maybe we shouldn’t complain – CA1 is generally better about footnotes than it used to be. But what is its theory of footnotes? What is the reasoning behind footnoting the admittedly inconsequential? Is that what footnotes are for? The four other footnotes in these eight pages are just as important, by the way.

The opinion in the first special action came out last June so the case apparently lost only eight months or so, not a whole year. But who couldn’t have seen this coming? One party or the other would have taken the issue up no matter which way the trial court ruled. You can make a procedural argument for ducking the question the first time – but you can also make an argument for answering it, especially since it’s an issue decided de novo that the trial court was going to have to face on remand. Can you imagine what lawyers who charged $2 million to try a case have charged their clients for eight extra months of appellate practice? Not that the defendants’ lawyers come much cheaper.

(link to opinion)