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Southwest Gas v. Irwin (CA2 2/29/12)

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What we wonder is why a trial court judge with years of experience on the bench didn’t know what to do in this situation.

Grubb’s husband was killed by the explosion of a gas heater. She sued Southwest Gas and those in the chain of distribution, including the wholesaler, DIB. DIB won summary judgment, which included Rule 54(b) language. When Grubb appealed the DIB judgment the trial judge worried about his jurisdiction over the rest of the case. Southwest argued that he still had it, Grubb that he didn’t and that if he did he should stay proceedings until after the DIB appeal. The trial court stayed its proceedings; when the defendants moved to lift it, the court announced that it had no jurisdiction.

So Southwest filed a special action. In response, Grubb argued mostly that the court shouldn’t take it. But the trial court’s order was not appealable, Southwest had no other relief available since the trial court had stayed everything, the question is purely one of law, and it will be moot once DIB’s appeal is over.

The court accepts jurisdiction and grants relief. Rule 54(b) expressly allows the court to enter judgment as to less than all parties or claims. “It is logical, if not axiomatic, that the rule thereby permits the portion of the case that is not part of the appeal to proceed in the trial court while the appeal moves forward.” Egan-Ryan (1990) held that the trial court retains jurisdiction over other claims after granting judgment as to one.

The court softly suggests that the way to handle these things is to be careful about Rule 54(b) language. Having granted it, though, and the propriety of that grant not being at issue here, the trial court has jurisdiction to proceed with the rest of the case.

The court remands for further proceedings, which presumably means an argument about a discretionary stay.

 

(link to opinion)

Santee v. Mesa Airlines (CA2 2/28/12)

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We don’t know where to begin. Well, first, let’s just tell you what happened:

Santee sued Mesa for damaging his personal property. Mesa moved to dismiss (“after several years of pretrial litigation,” the court tells us) and won; the court filed a signed minute entry. Mesa, which had made an offer of judgment, then moved for expert fees and costs under Rule 68(g). Santee filed his notice of appeal within thirty days of the dismissal but before this  motion had been ruled on. The trial court then granted that motion and “entered a final judgment dismissing the claims.”

The Court of Appeals decides, sua sponte, that it has no jurisdiction because the notice of appeal was premature (filed before the judgment entered after the Rule 68 motion). A premature notice works only if the entry of judgment is merely ministerial, i.e. if nothing could change between the notice and the actual entry of judgment (Barassi 1981). This is to prevent disruption of the trial process and avoid piecemeal litigation.

To its credit, the court had ordered supplemental briefs. Santee argued that a signed minute entry is appealable and a subsequent motion shouldn’t make it not so. The court says the argument is “unsupported by any authority,” ignores the trial-disruption issue, and, anyway, is just what time-extending motions do.

So Santee pointed out that a Rule 68 motion is not time-extending (ARCAP 9). The court agrees but says that there was no final judgment. Why not? Apparently because “the filing of the Rule 68(g) motion created an issue that demanded resolution by the trial court.”

We try to keep these things reasonably short, so we’re not going to try to untangle the court’s “reasoning” in those last two paragraphs.

Santee also contended that the taxing of costs was ministerial. The court disagreed, with perhaps a bit more justification, though Santee had an argument.

Okay, that’s what happened. Now, so that you don’t go away confused, be sure not to learn anything from this case. Here’s the law:

A signed minute entry is appealable. Why? Because its a judgment under Rule 58; the Focal Point case told us that a long time ago. Taxing fees and costs is not a separate issue that prevents entry of an appealable judgment; there are cases on that, too.

Once judgment is entered the trial court has no jurisdiction except over time-extending motions and those in furtherance of the appeal. If you forget to have the court award fees and costs before judgment, you need to move for new trial or to amend. Again, the cases are out there.

Therefore, the appeal time began to run with the signed minute entry. The trial court had no jurisdiction to entertain the Rule 68 motion or to amend (there having been no such motion) its earlier judgment. The second judgment was a nullity; Santee’s notice of appeal was timely, not premature.

Yes, Santee could have objected to the Rule 68 motion on jurisdictional grounds and filed another notice of appeal after the second judgment. That would have been the safest course, especially in these days when courts bend over backward to coddle people who don’t know the law.

On the subject of disrupting the process, can you imagine what would happen if this case were the law? The motions you could file to disrupt and delay your opponent’s appeal would be limited only by your imagination.

One last confusion: This slip opinion has the red Do-Not-Cite stamp the court uses for memorandum decisions. But it says “OPINION,” not “MEMORANDUM DECISION,” and the court has released it through the published-opinion channel. So is it an opinion, or a memo, or does the court think is has invented the non-citable opinion?

We would normally delay blogging one like this, per our FAQ, but presumably this isn’t going anywhere except back to Superior Court for the entry of a new notice of appeal.

(link to opinion)

Nunez v. Professional Transit Management (2/23/12)

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This case clarifies the standard of care for common carriers.

Defendant runs the Tucson city buses. Nunez’ decedent (who died before trial of unrelated causes) was a wheelchair-bound bus passenger. The driver strapped her wheelchair down but didn’t seat belt her. When the bus had to stop suddenly, she was thrown forward and injured.

Plaintiff argued that Brown should have been belted. The trial instructed the jury on the classic common-carrier standard: “the highest degree of care practicable under the circumstances.” Professional had asked for a reasonable-care instruction in addition to that, based on Atchison (1939), which decided that that instruction properly limits a common carrier’s duty. From a plaintiff’s verdict, the defendant appealed.

The Court of Appeals affirmed.

The Supreme Court reverses. Atchison is “hardly a model of analytical consistency” but it and later cases demonstrate that Arizona has always been uneasy with the common-carrier standard. Although common carriers have been held to have numerous duties, the standard of care in satisfying them is a separate issue. On that score the Restatements (second and third) require only reasonable care. Passengers entrust their safety to common carriers but they do the same with doctors, for example; there is no basis for imposing a higher standard.

Lowrey came to this conclusion ten years ago, based on a New York decision this opinion also cites, but that was a Division One case that Division Two (which handled this appeal) didn’t think it could follow in the face of other precedent. The Supreme Court agrees that the precedent was not clear.

“We therefore conclude that the appropriate standard of care in negligence actions by passengers against common carriers is the objective, reasonable person standard in traditional negligence law.”

Plaintiff argued that changing the standard would abrogate her cause of action. But clarifying the standard does not abrogate, it merely regulates. And ““Just as the common law is court-made law based upon the circumstances and conditions of the time, so can the common law be changed by the court when conditions and circumstances change.” So, does anti-abrogation apply to courts or not? The court chooses not to nail this down.

Plaintiff also argued that the court’s decision should be prospective only. But the precedent was not “clear and reliable,” especially in view of Lowrey, so that’s not appropriate.

This opinion tells you clearly, repeatedly, and exactly what it means, and why, in a relative minimum of pages. Hurwitz? You guessed it.

(link to opinion)