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Johnson v. Gravino (CA2 12/19/12)

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CA2 concludes that the trial court misinterpreted a divorce decree. But that isn’t the publishable part. The opinion exists to discuss, once again, appeal procedure.

The trial judge issued a substantive ruling and ordered Johnson, the prevailing party, to file a fee affidavit. Gravino filed an appeal before the court ruled on the fees. The trial court decided that the notice of appeal was premature, that it still had jurisdiction; it awarded Johnson’s fees. Gravino appealed again.

On appeal the parties didn’t argue jurisdiction; the court goes out of its way to raise the issue and write an opinion about it. It is further evidence that the recent spate of cases about appeal procedure reflects the appellate courts’ frustration about seeing so many botched appeals.

The thrust is this: a premature notice is a nullity. The trail court can disregard it (not strike it – that’s for the Court of Appeals) unless jurisdiction is “fairly debatable, in which case the trial judge should let the appellate court decide. If the appealing party believes the appeal timely but the trial court proceeds anyway, the answer is special action.

The trial court can respect even a clearly void notice, though, as the opinion points out by discussing its recent opinion in Flores v. Martinez, another divorce case used as a vehicle for an opinion about appeal procedure. (But before you think that the court is being hard on domestic-relations lawyers remember that those are most of the “civil” cases CA2 sees nowadays.)

The opinion says that a trial court proceeding despite a notice of appeal should notify the Court of Appeals that it is doing so, so that the appellate court can stay its proceedings pending some motion by the parties. Presumably that’s what will happen but this is a procedural rule that should go through the normal rule process.

(link to opinion)

Cornerstone Hospital v. Marner (CA2 12/7/12)

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We sympathize with the judges of CA2, condemned to a life almost entirely devoted to criminal cases (about 80% – and the remainder include domestic relations and other cases many of us wouldn’t quite consider civil). But this was a bit of a stretch.

Plaintiff sued under the Adult Protective Services Act (46-451 et seq.) for the death of his wife. One of the defendants was a hospital and so he named an expert (a nurse). The hospital challenged the expert; the trial court ruled that she could testify about some things but not others. But the order also said that 12-2604 (expert witness qualifications in medical malpractice actions) does not apply to APSA cases. Cornerstone took a special action.

The trial court’s order specifically ruled that the nurse was qualified even if 2604 applied. That was the effective part of the ruling. The hospital’s argument was that the court let her talk about too much. Whether the statute applied was an inessential part of an evidentiary ruling.

So the Court of Appeals decides that this is the case on which to address the issue.

Why? Why bother to take this special action? The court gives three “compelling reasons.”

First, “the challenged ruling is interlocutory in nature” so “there is no direct review . . . by appeal.” And here we thought that was merely a prerequisite to a special action. Silly us; now we know that every special action contains at least one “compelling reason” to accept it.

Second, whether the statute applies is question of law. True enough. And that’s a reason to accept a special action. But, again, since when is it a “compelling” reason?

Third, it is a question of “first impression and statewide importance.” And that’s the key. The court apparently took this special action because it wanted to. It reached out to grab an issue not because there was any real need to but because the issue piqued its interest.

The court concludes, after a workmanlike but hardly outstanding analysis, that 2604 applies to APSA claims against health care providers.

And so it grants relief? Nope; the opinion tells us that even before it begins its statutory analysis. RNs can testify, the court confirms, as to other RNs but also as to LPNs and nursing assistants The fact that they are separately licensed by the state does not require an expert licensed in each specialty. LPNs and CNAs are subordinate to RNs and have more limited skills. The court set the proper bounds on the nurse’s testimony.

So much for that “compelling” 2604 issue.

(link to opinion)

Sullivan v. Pulte (CA1 12/4/12)

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THE ECONOMIC-LOSS PORTION OF THIS OPINION HAS BEEN VACATED

This case against a homebuilder is interesting for a few reasons but mainly for its new wrinkle on the economic-loss doctrine.

The Sullivans bought a house with a defective retaining wall. The sued – for breach of implied warranties of workmanship and habitability, negligence,  fraud, and consumer fraud – the original builder rather than their seller, the first purchaser. Pulte removed the case and then moved to dismiss, to which motion the Sullivans responded. The District Court remanded. The Superior Court then dismissed based on the pleadings filed in federal court. The Sullivans appeal.

The argue firstly that dismissal based on federal pleadings violates due process and equal protection. The Court of Appeals disagrees; pleadings filed in federal court become part of the state record on remand.

The opinion first addresses the implied-warranty claims.

Pulte’s motion was based on the statute of repose (A.R.S. 12-552). (Pulte built the house in 2000; the Sullivans sued in 2010.) The opinion spends 2 1/2 pages deciding that it applies to implied warranty claims, though the statute says so specifically and it isn’t clear that the Sullivans argued about that.

The Sullivans did argue that the statute was unconstitutional, making an abrogation argument. But “the anti-abrogation clause does not apply to common-law contract claims,” applying instead to “tort claimants”; this cites the Samaritan case from 1998. And an implied warranty claim, despite an absence of privity, is a contract claim, citing various Arizona Supreme court cases.

The Sullivans also argued equitable tolling. But our Supreme Court has already held (Albano 2011) that that doctrine does not apply to this statute. “[T]o apply equitable tolling here would allow a judge-made doctrine to trump the statutory language reflecting the clear intent of the legislature.”

On the tort claims, Pulte argued the economic-loss doctrine. Both sides cited Flagstaff Affordable Housing. If you’ve read that case you probably think that it doesn’t allow recovery here. This opinion, citing Flagstaff, decides that it does. why? Because even though Arizona law allows the Sulllivans to sue Pulte on implied warranty without privity, and even though that sounds in contract, the Sullivans weren’t actually “contracting parties” – with Pulte, at least – and so didn’t have the “opportunity to negotiate with Pulte to allocate the risk of future losses (as if anybody has the opportunity to negotiate with a mass builder), therefore even though they’re protected by contract law they’re not really protected by contract law and so people not in privity with the builder should have more rights against it than those who were. We’d have said that the court’s quotations from Flagstaff just as well support the opposite view but maybe that’s just us. (In a footnote the court specifically recognizes the weirdness of a more-rights-without-privity situation but blames it on Flagstaff.)

Regarding consumer fraud, the court concludes, by construing its language, that the statute (A.R.S. 4401521ff) does not apply to subsequent purchasers. Similarly, it briefly concludes that fraudulent concealment applies only to the parties to the original transaction.

The trial court had awarded Pulte its attorney fees. The Court of Appeals does not merely reverse that award but concludes that it was wrong in the first place because these implied warranties are implied-in-law (and 12-341.01 applies to implied-in-fact). This cites North Peak (2011), which involved an architect’s warranty, which even that case said was different from the merchantability/habitability warranty but apparently not enough different in not quite the same way, or something.

So the court affirms dismissal of the warranty, fraud, and consumer fraud claims but reverses on the tort claims. It denies fees on appeal but awards the Sullivans’ costs.

link to opinion)