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Yanni v. Tucker Plumbing (CA2 11/21/13)

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On suing for breach of the warranty of habitability without privity.

Plaintiffs bought houses, apparently in the same development. There were plumbing problems. For reasons not discussed in the opinion, rather than sue the builder they sued its plumbing subcontractor for breach of implied warranty. The body of the opinion tells us that Plaintiffs didn’t allege or prove privity with the sub; a footnote, presumably added after oral argument, says they conceded they had none.The sub therefore moved for summary judgment. The trial court granted it; the Court of Appeals affirms.

Richards (1984) held that subsequent homeowners could sue the builder for breach of warranty; Lofts at Fillmore (2008) said that was true even when the builder wasn’t the seller (there the owner of apartments had the builder turn them into condos and then sold them off). But the Court of Appeals holds that they don’t go so far as to permit an action against a sub. “There is a distinction between the creation of an implied warranty by virtue of construction of a structure and the contractual relationship required to assert its breach as a cause of action.” We think we know what the court has in mind but Plaintiffs argued, citing Lofts, that the warranty arises out of the construction, not the contract, and this formulation begs that question.

The court suggests that the way to do things is to sue the builder or vendor and let them, in the normal way, sue the subs for indemnity. No doubt there’s a reason that wasn’t done here, though if it were the usual reason — insolvency of the right defendants – surely Plaintiffs would have mentioned it.

(link to opinion)

Jamerson v. Quintero (CA1 11/7/13)

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“We hold that  . . .  when a principal is jointly and severally liable for the fault of its agent, a stipulated dismissal with prejudice of the principal does not as a matter of law bar a claim against the agent.”

This is a slip-and-fall in a drug store. Plaintiff sued Walgreen’s and its janitorial service. She settled with Walgreen’s. The janitorial service then moved for dismissal, on the principle that the release of the principal releases the agent.

This principle may not be familiar to those with more than a foggy grasp of the law of agency since theory, and the practice of the common law, are to the contrary. But dictum in a 1945 case citing Am. Jur. supported it as did, the court points out, a 1963 passage in A.L.R. We think and hope that the court is suggesting – and we think and hope that most lawyers understand – the foolishness of relying on such as Am. Jur. and A.L.R. They are (or were, in the days before the internet) ways of finding cases; to rely on their legal conclusions is lazy and amateurish (except, of course, when you can’t find cases that actually say some favorable thing that Am.Jur., etc. say they do).

But the court avoids common-law problems by relying instead on UCATA. Principal and agent are still jointly and severally liable (12-2506); release of one joint tortfeasor doesn’t release the other (12-2504). The janitorial service argued that 2504 doesn’t apply, citing a case (Law 2007) involving the release of the agent. The court explains – using some good common-law theory without quite acknowledging it as such – that Law can’t apply to the converse situation.

This opinion uses the U.S. Supreme Court page format recently adopted by our Supreme Court. We don’t recall seeing this in a CA2 opinion yet but presumably its only a matter of time until everyone is sophisticated, or modern, or whatever somebody thinks this is. (Do they really think it modern? Should we tell them that its older than their “old” format?)

(link to opinion)

Stout v. Justice Court/State (CA1 10/17/13)

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Another stumble on the way to electronic nirvana.

Stout pled guilty to a misdemeanor in the Justice Court. After sentencing he moved for Rule 32 post-conviction relief. To support this he requested transcripts of some hearings; Rule 32 says he “may request . . . that certified transcripts be prepared.” But Rule 7 of the Superior Court appellate criminal rules says that the “record on appeal” is a “recording or certified transcript . . . , as the Superior Court may require.” The Justice Court, and then on special action the Superior Court, told Stout he could have recordings but not transcripts.

The Court of Appeals reverses, holding that Stout can have transcripts.

As usual nowadays Stout mistimed his appeal, so as usual nowadays the court has to include a paragraph explaining why it can hear the case. This is Barassi situation, so see Baker if you’re interested in that.

The court next decides which rule applies. It takes the Occam’s Razor approach, which is helpful to the case but less so to the law: Rule 7 applies to the “appeal” record so it doesn’t apply here because a Rule 32 proceeding isn’t an “appeal.”

There can, then, be a difference between the record for some purposes and the record for others. That way lies chaos.

Next, the court decides that it has to decide whether the word “transcript” doesn’t really mean “recording” as well.  (The State didn’t make that argument; it didn’t file a brief.) That this didn’t go without saying is ominous; if words in the rules mean whatever an appellate court says, however plain they are, then there are no rules.

But in this case the court couldn’t quite mange to call black white. Dictionaries tell it that a transcript is written or printed. In addition, though, the court tells us that “the Supreme Court has recognized a difference between transcripts and electronic recordings by distinguishing between them”: ARCAP 11 says “transcript,” Rule 7 says “recording.” Well, yeah, but whether the distinction indeed makes a difference is what the Court of Appeals told us it had to decide; if there’s a distinction between rules 7 and 11, why wonder if there’s a distinction between rules 7 and 32?

The court acknowledges that giving special privilege to people who pled guilty in the Justice Court is silly but under the existing rules this is surely the correct result.

The court takes care, though, to make obeisance to the zeitgeist. In a long paragraph it explains to us that recordings are just as good as transcripts and that they don’t prejudice anybody and that – in a passage sure to bring a gleam to the eyes of the judicial-branch bureaucrats who nowadays rule the law and our profession – they save money.

(link to opinion)