In light of the new McBride opinion we have done what we have had to do with increasing frequency, it seems, in the last several months: amend an earlier blog because the Court of Appeals has issued a new version of its opinion. In McBride this happened on motion for reconsideration, so the opinion specifically says “Amended” (though why in this case the court bothered with an amended opinion rather than to issue a separate memorandum isn’t clear.) In other cases, though, the court slips out a new version a few days or weeks after the original; neither the new version nor the court file mention or explain the substitution.

When this happens we add a “Later Note” to the top of the existing case blog. So if you think we haven’t blogged a “new” opinion you might use the search box at the right, or browse through the Reviews by Court, to see if it really is.

The ruling in this special action is that Duquette (1989) – defense counsel may have no ex parte communications with the plaintiff’s physicians without the plaintiff’s consent – doesn’t bar a hospital’s counsel from talking to its employees.

In this action against a hospital that had treated the patient intensively for several problems for years, Plaintiffs first got the trial court to order that defense counsel could have no contact with physicians other than the ones it was suing and then set the deposition of a hospital doctor whom they had not (yet, at least) sued. The trial court prohibited the hospital’s counsel from talking to him; the hospital took special action.

The Court of Appeals distinguishes Duquette because that case didn’t deal with the employer-employee issue. This decision is based on the law of agency: the hospital can talk to its employees because of the agency relationship, by which it is charged with – and liable for –their knowledge. That is independent of the doctor-patient privilege.

The court then opines that the privilege vaguely limits what some hospital employees may tell other hospital employees, dicta of limited use in this opinion but which will cause mischief down the line.

(link to opinion)

Mechanic’s lien practitioners will want to read this since it adds some interesting wrinkles to the law. Others should note the appellate practice point.

Delmastro, a contractor, did work at an office complex and later sued the owner to enforce its mechanic’s lien. It then amended its Complaint to name Taco Bell; it hadn’t known before filing suit that Taco Bell had purchased a parcel in the complex and it had given Taco Bell no prior notice of the lien. The trial court granted Taco Bell summary judgment on the lien claim and on its counterclaim for wrongful recording.

Taco Bell argued that the preliminary notice’s description of the work was insufficient because it didn’t indicate that any work was done on the parcel Taco Bell had bought. The court, discussing at length the detail necessary in a preliminary notice, agrees. The court then takes several more pages to explain why various cases allowing contractors to slide around the statutory requirements didn’t apply under these facts.

The court also upholds judgment on the counterclaim. The question on this was whether Delmastro had reason to know that the lien was invalid. “For the reasons explained [when discussing the description-of-the-work issue] Delmastro had reason to know its preliminary notices contained legally deficient descriptions . . .” In other words, Delmastro had reason to know what now, four years later, an appellate court takes fifteen pages of legal and factual analysis to conclude.

This is not an uncommon judicial attitude but to its credit the court seems uncomfortable with it. So it spends six more pages explaining that “reason to know” is not in this context a question of fact, despite what various cases have said. “[R]eason to know of the invalidity of a lien generally follows from the fact that the lien is facially invalid.” “Reason to know” of invalidity” “does not require” that one be “cognizant of the invalidity.” The court then says that “a defendant‟s reason to know of the invalidity of a lien might, at times, present a factual issue to be resolved at trial.” It does not explain when that “might” be true.

You know early on that Delmastro is going to lose this one; in the second sentence of the opinion the court announces that  “Delmastro has improperly cited to its own appendix to support certain factual assertions in its opening brief, [therefore] we disregard those assertions and rely instead on Taco Bell‟s statement of facts and our own review of the record.” This did not sate the court’s annoyance, however, and so a later footnote complains about it at some length, noting also that Taco Bell did not object to it and indicating that this gives the court the discretion to ignore the problem/enforce the rule or not, as it pleases.

Delmastro’s citation mistake seems weird and inexcusable unless its appendix cited the record, in which case it tried to interpret the rule too broadly and stretch it too far. Remember two things about appendices. First, they’re not part of the brief (Rule 13 makes it seem like they might be but you can’t think of them that way); the brief must on its own comply with all rules. Second, courts don’t like them. Some lawyers and firms make the lengthy appendix a standard part of their appellate presentation – which usually reduces its effectiveness. More often that not an appendix is little more than a way to exceed the page limit; since courts have much weary experience seeing that yours starts out with a presumptive strike against it. Appendices are rarely necessary; if you have to have one it should be as short as possible.

(link to opinion)