Cave iudicem. This is the third time AzAppBlog has reviewed an opinion (the others here and here) telling this judge that he’d abused his contempt power.

In this guardianship dispute among family members the court appointed a doctor to do a competency evaluation. One of the several lawyers involved subpoenaed the doctor’s records of her prior reports. Instead of telling the lawyer that there were 700 of them she called the judge and complained that she was being harassed. Instead of notifying the lawyers and telling them to work it out the judge called them in, decreed that the subpoena was improper and invalid because “some things just jump out at you [even though] you can’t articulate reasons,” demanded that lawyers tell him under oath privileged information such as who had discussed what about the subpoena, and sanctioned them in various ways, ignoring in the process most applicable rules and principles of law except to give them lip service.

The court issues this opinion to explain that you can’t do that. If you’re not sure about why, read the opinion. Actually, since there’s no new law here, maybe it issues it simply to try to get this judge to stop doing it. Fat chance.

An interesting detail is that some of the lawyers had formally entered into a “common interest agreement.” If you do such things be aware that, though a popular lawyers’-magazine topic some years back,  they can have more utility in theory than in practice. But this opinion says nothing critical of them and opines in a footnote that they needn’t be disclosed.

And footnote three, which first says that the court doesn’t decide whether the subpoena was overbroad, then decides it: “[E]xperts who are paid to testify in court should not be outraged or caught by surprise when they receive inquiries into the patterns that their opinions may reveal. Such inquiries are essential to meaningful cross-examination and an understanding of the integrity of the methods the experts employ.”

(link to opinion)

This question of diminished value is more complex than the parties or court wish to point out.

Henry ran into Oliver’s new Jeep. Henry’s insurance company paid about $15,000 to fix it. Oliver then sued for diminished value of about $9,000. Henry’s defense was that Oliver shouldn’t get diminished value because he had no intention of selling the car. The trial court denied summary judgment on that and an arbitrator found for Oliver. Henry appeals. The Court of Appeals affirms.

The opinion first explains that diminished value is compensable, though Henry hadn’t denied that. It then holds that a sale is not necessary in order to determine or make “actual” the diminished value. The cases do not explicitly say so. The Restatement might say so, depending on how you interpret it, but the court doesn’t interpret it that way. And “a victim should [not] be required to sell his vehicle in order to establish a claim.”

Well, no, unless that is an element of the claim; the argument assumes its own truth. But the bigger problem is that not requiring one party to sell now requires the other to buy now. If the accident hadn’t happened the value would remain in the car and would steadily erode until the car was sold; now it is converted into immediate wealth at immediate value. The claim here was that a buyer would pay only wholesale value because of the crash and that the difference between wholesale and retail is $9,000. But when Oliver eventually does sell his Jeep the difference between wholesale and retail is going to be a whole lot less than that. Oliver is being wildly overcompensated.

These things can probably be addressed by testimony but it would be nice to see somebody suggest that the issue is more than black and white. But it doesn’t look like either party here did so we don’t blame the court.

(link to opinion)

Here’s a question we’d assumed had been definitively answered about twenty-five years ago. Apparently not, or else it’s another example of people raising old questions they themselves just thought of. 

Bondwriter, a Fidelity agent, mistakenly issued a contractor’s bond without authority. The contractor knew of the mistake and returned it –  but had first made a copy, with which it was able to get a job since the property owner (the City of Flagstaff), which usually demanded an original, didn’t check to see whether it had one. The contractor didn’t finish the project; Fidelity decided it had to pay on the bond; then it sued Bondwriter for breach of contract and negligence. Bondwriter named the contractor and owner as non-parties at fault. 

After a bench trial the trial court ruled for Fidelity but allocated 95% of the fault to the contractor and Flagstaff on both the contract and negligence claims. Fidelity appealed, arguing that allocation of fault does not apply to contract.

The court of appeals agrees. 12-2506 does not mention contract; “fault,” which it does mention, isn’t a concept that applies in contract; the legislative history had nothing to do with contract.

This is probably the reason the case was published. Most of the long opinion deals with Bondwriter’s attempts to argue that it wasn’t at fault because Flagstaff “ratified” the contract or because it didn’t really breach the exact wording of its agency agreement. This makes slightly more sense when you know that the lower court had ruled before trial that the bond was invalid, someone having convinced it that a municipality can’t, by statute, make a bond claim unless it has the original. But Bondwriter, although it was apparenlty the “someone,” drew the wrong conclusions about what that meant to the case.

(link to opinion)