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Kool Radiators v. Evans (CA1 5/31/12)

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The facts of this case are unimportant; it is published to announce a change in a point of appellate law.

The trial court dismissed Kool’s Complaint without prejudice and awarded Evans fees and costs. Kool appealed the dismissal and the fee award.

The Court of Appeals first points out that a dismissal without prejudice isn’t appealable. That isn’t the change, though its something that the courts have to publish on every once in awhile since an amazing number of people filing appeals apparently don’t know the basics. A dismissal without prejudice isn’t a final judgment (unless for some reason, such as the statute of limitations, you can’t re-file).

The change is that the court next has to deal with Callanan (1982), in which it held that fee awards from dismissals without prejudice were appealable. The opinion announces that Callanan was wrong because nothing in 12-2101 authorizes such an appeal.

(So the court treats the appeal as a special action, accepts it, and grants relief. It concludes that the dismissal was wrong and so the fee award was also wrong.)

(link to opinion)

American Family v. Sharp (5/31/12)

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Justice Pelander answers this certified question in 16 pages, which for him is admirable, and much-appreciated-by-bloggers, brevity. The answer is also correct, though we’re not sure that the reasoning doesn’t raise as many questions as it answers.

Sharp was injured while a passenger on her husband’s motorcycle. They had separate AmFam policies, he on his motorcycle and she on her car. She recovered his liability limits then claimed UIM from her own policy. The policies said in effect that the spouse of a named policyholder, where the couple had multiple AmFam policies, could chose from either but not both. AmFam filed a declaratory action in federal court, which certified a long-winded question asking whether 20-259.01H applies (“If multiple policies or coverages purchased by one insured on different vehicles apply to an accident or claim, the insurer may limit the coverage so that only one policy or coverage, selected by the insured, shall be applicable to any one accident.”)

The court says that “The [statutes’] text alone does not resolve the parties’ dispute.” We don’t entirely understand that since the statute speaks of multiple policies purchased by one insured, not multiple policies purchased by multiple insureds.  According to a footnote on the last page, the parties fought about whether she was “one insured” but the court doesn’t address that issue because it has already decided the case despite it. So what does “one insured” really mean, if not “one insured?” Guess that will have to be answered down the line.

Anyway, the court looks to “legislature’s intent, considering the statute’s context, effects and consequences, and spirit and purpose.” After a brief analysis it concludes that “the phrase “multiple policies or coverages” applies when an insured obtains coverages for several vehicles and then attempts to claim multiple UIM coverages for the same accident.” In other words, the court focuses the controversy not on the “one insured” language but on the “one policy or coverage language,” holding that it applies only to UIM coverage, so that a liability claim against one policy doesn’t bar a UIM claim against the other.

(link to opinion)

Cardoso v. Soldo (CA1 5/29/12)

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This otherwise-insignificant domestic dispute raises questions about mootness and, more importantly, about the role of the courts.

Soldo obtained an order of protection against Cardoso, his ex. Cardoso moved to dismiss it but the Superior Court (which heard the matter because there was also an ongoing child-support dispute) denied her motion. She appealed.

By the time the Court of Appeals considered her case a year had elapsed so the order had expired. The court admitted that the usual exceptions to mootness – capable of repetition yet evading review and issue of great public importance – don’t apply here. But it holds that expired orders of protection can be reviewed under the “collateral consequences” exception. That’s a criminal doctrine (even if the defendant has been released you review his conviction because it could affect his right to vote, etc.) that some courts in other states have agreed – and others have disagreed – can apply to orders of protection. The court says that an order of protection is something a trial court can consider in issuing another order of protection and in connection with a custody dispute; it does not explain why a party can’t just point out to the court that an appeal was filed but never heard on its merits. The court also says that orders of protection are sent to a central repository; how reversing an order on appeal would remove it from the depository, though, is unclear. Finally, the Court of Appeals tells us that an order of protection harms one’s reputation. But how does this distinguish it from many of the cases courts call moot? Is there now a “reputation” exception to mootness?

There are, we agree, reasonable arguments to be made in the court’s favor. What particularly bothers us about this opinion is that nobody made them. Both parties were pro se. Soldo didn’t file a brief. Cardoso’s made amateurish arguments on the merits that the court deals with almost summarily (it affirms the order of protection against her; she would have been better off with a dismissal for mootness); we can’t believe that it contained a mootness analysis. So, the court has published an opinion (without the mootness holding this would be a minor memo) for the sole purpose of announcing new law on an issue that was never briefed.

We have noted before that the Court of Appeals doesn’t always pay too much attention to the adversary system. It must be easier to write opinions when you’re not resolving parties’ conflicting arguments but instead just making things up in your own head. In the normal course the court should have called for supplemental briefs (assuming that both sides’ lawyers missed the mootness issue). Did it think of doing so here? Did it not do so because the parties were unrepresented? If so, how is it a good thing to announce that the court will fill in the gaps in pro se arguments, and even use them as excuses to make law of the court’s own desire?

(link to opinion)