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Baker v. University Physicans (3/12/13)

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We blogged the Court of Appeal’s opinion here. Go there for the facts. The Supreme Court’s disposition is the same but it analyzes the statute differently.

Principally, it holds that “specialty” includes subspecialty. The trial court was correct that Plaintiff’s expert had to be a pediatrician with a subspecialty in hematology/oncology.

While the court says that a “specialist” is one who is board-certified it doesn’t’ say anything about using web sites to make that determination, much less to decide appeals. It also decides that 12-2604 requires an expert in the same specialty only when the care or treatment was within that specialty. And it concludes that in order for the defendant doctor to qualify as a specialist he or she must have spent the majority of time practicing that specialty. That’s because the statute requires the plaintiff’s expert to have done so; the logic eludes us.

The court also holds the statute constitutional against various challenges.

The court vacates CA1’s opinion except insofar as that opinion vacated the judgment and remanded to give Plaintiff another bite of the apple. Why do that if the trial court’s ruling was correct? The Supreme Court mentions that it “declined to review” that issue. Its interesting to know that the disposition of a case is a separate issue. That confirms something we’ve said before in another context – though back then we thought we were being satirical: the disposition of an appeal isn’t the logical procedural consequence of the holding, its whatever the court wants to do.

(link to opinion)

Baker v. Bradley (CA1 3/5/13)

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Yet another case about appeal procedure. This one discusses, tediously, the Barassi rule.

An unsigned minute entry granted a motion to dismiss. Plaintiff responded with a notice of appeal, before the Judgment was submitted and signed, and did not file another notice afterward.

Under Barassi, as explained by Craig, a premature notice is okay if no motion is pending, so that “the only remaining task is merely ministerial.” CA1 thinks the “merely ministerial” language a problem since a minute entry can always be changed prior to judgment. It decides that the Supreme Court didn’t really mean what it said and that Barassi applies when there is no motion pending. If there is, “the ruling of the court could change and the remaining task would not be merely ministerial.”

(That means, you might be thinking, that if no motion is pending then the entry of judgment is indeed merely ministerial. But if that’s right then the court has just spent several pages pointlessly chasing its tail. So that can’t be right, can it?)

In any event, since there was no motion pending Barassi applies to save the appeal. The fact that one defendant hadn’t been – and never was – served doesn’t change that; “unserved parties are not ‘parties’ within the rules.”

The dissent disagrees with that. Plaintiff still had time to serve the other defendant when he filed the notice of appeal (he had received an extension of time for service). “This possibility means the final decision could change,” though the dissent does not explain how. 

The majority opinion manages to be over fifteen pages long. One good edit could have saved some of those merely by not saying the same thing more than once. Eliminating the long, irrelevant footnote would also have helped (though there is only one). And the court takes the time to explain that this was a prisoner’s suit against some guards; pop quiz: how exactly does that affect the operation of Barassi?

But the court apparently raised the issue on its own (we’ll assume that the AG’s office spotted it but figured that Barassi applied). Decisions sua sponte tend to look like this – unfocused, at once both naïve and hyper-technical. Craig did say that Barassi was limited to its facts and Barassi was slightly different (the appeal was from denial of a motion for new trial), so perhaps the court was nervous about it; it does “invite the Arizona Supreme Court to further clarify [sic]” the rule, “if necessary.” Courts, though, are much better at responding to issues briefed by litigants than at going it alone.

(link to opinion)

In re Estate of Riley (3/1/13)

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Probate lawyers can use this one to guide their drafting. Our interest is why CA2 did something that we were hoping against hope that the Supreme Court might note but it didn’t.

Mary Riley left her estate to her many children, two of whom were appointed PRs and spent ten years administering it. When they went to close it another of the kids objected, claiming excessive costs of administration. He became the new PR, apparently by agreement. The new and old PRs then signed a settlement agreement, as part of which one of the old PRs gave up his claim on the estate. Over the objection of still other kids, the probate court approved this. The objectors appealed.

The Court of Appeals, sua sponte, raised the issue of whether the agreement violated 14-3952 (probate compromise must be signed by “all competent persons . . . having claims”) since the objecting kids hadn’t signed. After allowing briefing on the point the court held the settlement agreement void for lack of all the heirs’ signatures.

The Supreme Court accepted review and comes to almost but not quite the same conclusion, so it vacates the CA2 opinion. It holds that the agreement is not binding on the non-signors but (contra CA2) is not necessarily void for all purposes. Mostly, though, the court gently points out that the agreement might have been structured in ways that avoided the statute.

Our question is: why did CA2 chose to suggest to the objectors a substantive argument they hadn’t made – and that the court had, probably already, decided was the wining argument for them? It wasn’t a jurisdictional thing. CA2 noted that the other side didn’t argue that the issue hadn’t been raised in the court below. But what if it did? Would the court have ignored the issue it ordered briefed? Or would it have constructed an excuse to decide the parties’ lawsuit on an issue they never put in it? And why weren’t the CA2 judges listed at the beginning of the opinion – as counsel for some of the parties – rather than merely at the end?

(link to opinion)