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Estate of DeSela v. Prescott Unified School District (1/18/10)

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We blogged the Court of Appeals opinion in this case here (and its slightly revised version here). The Supreme Court vacates that opinion; it reaches the same result but for a different reason.

DeSela was injured at school in November 2004. Her mother assigned to her the mother’s claim for her medical expenses. In December 2007 she filed suit for personal injury, having turned 18 the year before. The District argued that the claim for medical expenses was barred by the statute of limitations. The trial court agreed and dismissed it. The Court of Appeals reversed, concluding that although she had received the cause of action by assignment from her mother the statute of limitations applies as though it were her own, i.e., it abated until her majority.

The Supreme Court outflanks the assignment issue, holding that DeSela herself owned the cause of action. The assignment was therefore irrelevant. This overturns earlier cases to the contrary; the Court feels the old rule – that the parents own the claim for medical expenses –  outmoded and inconsistent with a child’s rights nowadays to make various other sorts of claims. The right to recover medical expenses, says the Court, belongs to both parent and child, although no double recovery may occur. The Court reverses the trial court and remands.

This has the advantage of not running roughshod over the law of assignments, as the Court of Appeals did. Instead, it runs roughshod over the idea that you’re supposed to raise issues in the courts below. The argument it adopts was not raised until the case was before the Supreme Court. It was raised by DeSela, not by the Petition for Review. The Court considers it for two reasons. First, the issue is “of great public importance or likely to recur.” How that is true here isn’t entirely clear since the precedent being overturned is from the 1940’s; that’s about how often it comes up. Second, the Court of Appeals would have been bound by the precedent anyway. But isn’t that always true? Doesn’t this create a rule de facto that an argument for change of Supreme Court precedent needn’t be made until the case is before that court? And why is it a good idea to decree that granting review, instead of limiting the issues to those on which it is granted, expands them?

No doubt the Court thinks it has changed the law in a good way. But the impulse for immediate gratification – either of the law or of a particular claimant – should rarely be indulged. The traditional and proper solution is to signal an argument’s future acceptance by discussing it, briefly but favorably, before announcing that it was untimely. That gets the law changed. permits (when someone eventually bothers to fight the issue) full review all the way along – which, when you’re  changing seventy-year-old precedent (just to posit a random example) is not a bad idea – and respects important procedural principles. The failure to do so suggests arbitrariness, if not whimsy.

 

(link to opinion)

Smith v. Beeseley (CA2 1/13/10)

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The issue here is whether a driveway could be built over a drainage easement. This is pretty dry stuff but illustrates the value of a particular statute and the lack of value of a particular rule.

A subdivision plat showed several drainage easements. Beeseley, an adjoining landowner, bought property burdened by one of them, located between two of the subdivision’s lots, where a ravine drained water from his property into a creek. He built a culvert and driveway over this property. Smith, who owned the subdivision lot next to this, sued for trespass, nuisance, and unlawful alteration of a watercourse (48-3613), requesting an injunction that Beeseley remove these improvements. His principal argument was apparently that the easement was only for drainage and couldn’t be used also for a driveway.

For reasons not made clear (probably because the Court of Appeals doesn’t understand them, either), preliminary proceedings were lengthy and confused. There were motions for summary judgment and an evidentiary hearing on a preliminary injunction. After the injunction hearing the trial judge indicated that he would rule for Smith and asked for a form of order; Smith’s  response, a year later, was to file another motion for summary judgment that the court denied. Before trial Smith finally got around to requesting an order on the preliminary injunction, which the court entered, ordering Beeseley to remove the improvements because they would change the drainage in the event of a 100-year flood. Along with this the court issued a Rule 56d order specifying undisputed facts.

At trial Beeseley presented a new design for the improvements that he said wouldn’t interfere with the watercourse. The trail judge agreed, affirmed the order to remove the old improvements, and permitted construction of the new ones. It found – contrary to the 56d order – that the developer hadn’t intended Beeseleys’ easement to be solely a drainageway. And it concluded that the old improvements didn’t, after all, violate 48-3613, ruling the statute inapplicable because the local flood control district doesn’t regulate watercourses that small. The court awarded Smith nominal damages (we’re not told the amount) on the nuisance claim because some rocks had slid onto his property during construction of the improvements. (It ordered Beeseley to try not to do that while building the new ones.) It also awarded Beeseley $55,000 in attorney fees.

The bulk of the opinion discusses the contention that the easement was for drainage only. On this issue Smith loses. As the trial court had ruled,  the language of the easement permitted compatible uses and the driveway was compatible. That the plat did not show roadways where the easements were didn’t prevent people from putting driveways on them as long as the driveway didn’t interfere with the function of the drainageway.

Smith argued that the trial court couldn’t depart from the 56d  order. But such orders are interlocutory and subject to revision. If, for example, a fact thought to be “without substantial controversy” under 56d is later found to be controverted then the ruling can be changed. (Any wonder why nobody bothers with Rule 56d anymore?)

Smith also contended that “because drainage is a public use, the plat‘s dedication of land for this purpose combined with the sale of lots within the subdivision vested title to the subject property in Gila County,” and that therefore Beeseley didn’t even own it. This was based on an old case and two statues from the 1939 Code (in effect when the property was platted). This is one of those clever, midnight-oil arguments that rarely fly. Dedication is a matter of intent, not something that happens automatically, and the trial court had found that the original developer didn’t intend to give the land to the County.

But as to 48-3613 the court concludes that the trial court was right the first time: Beeseley violated it. The statute requires government approval of any alteration of the flow of water in a watercourse. There are exceptions but even under the exceptions plans must be filed, which Beeseley hadn’t done. Though the County may limit the scope of its regulation (in Gila County’s case to drainage areas of more that 160 acres), it cannot change the statute: those who alter a watercourse without following it are liable. (It looks like the Gila County regulations made it difficult, if not impossible,  to comply fully with the statute but the court cuts Beeseley no break for that except to suggest that the trial court can consider his predicament in deciding whether to award damages or fees.)

The statute requires that the watercourse be returned to its original state, so the court remands for the entry of an order to that effect and a ruling as to fees (the court vacates the award to Beeseley).

48-3613, by the way, is often the most powerful tool in this sort of case. “Watercourse” turns out to be a surprisingly broad term and actual damage is not required. The statute is strict, more so than the common law. In this case the easement owner considered the problem (Beeseley had contacted the flood-control people). Many owners don’t, though, especially in areas where people just think they’re dealing with a dirt road in barren desert where nobody has even seen a drop of water.

(link to opinion)

Freeman v. Sorchych (CA1 1/13/11)

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This opinion holds that those who share an easement share the obligation to maintain it.

Sorchych and the Freemans own adjoining properties. A single road, built when the properties were jointly owned, is the access to both. They have an easement for the road, granted to the earlier joint owner by the owner of the land over which it runs.  Various arguments about the road culminated in a bench trial on the Freemans’ claim against Sorchych for half the cost of maintaining it. Sorchych won, the court concluding that no precedent supported a contribution claim and that the Freemans’ claim of unjust enrichment failed because the maintenance was done for their benefit as well.

On appeal the Freemans’ claim becomes that Sorchych must pay for maintenance “in an amount proportionate to his use.” The court does not comment on this change of position.

On the issue of contribution the Court of Appeals reverses. It concludes that the Freemans have a claim for equitable contribution because that is what the Restatement says: “The holders of separate easements . . . who use the same improvements or portion of the servient estate . . . have a duty to each other to contribute to the reasonable costs of repair and maintenance . . .” (First, though, the opinion explains at length that as between the grantor and owner of the easement the maintenance duty is on the owner. If that was at issue in this case the opinion does not explain why.)

The court next tells us, citing and discussing a number of cases, that this conclusion is consistent with the common law of other states. There was a time when to say that and to cite the Restatement were considered essentially the same thing. That’s why we have a tradition of following the Restatement. It is either the triumph or tragedy of the ALI, depending on your point of view, that the Restatement is no longer seen as restating anything other than some law professors’ opinions.

But contribution is not 50/50. It “an equitable apportionment” depending on “various relevant factors” including but not limited to proportionate use, the reasonableness and adequacy of the maintenance performed, and whether each party received notice and an opportunity to participate in the maintenance decision. (The court’s earlier discussion had implied that notice and opportunity would be elements of the cause of action but it now specifically lists them as mere “factors.”)

On the issue of unjust enrichment the court upholds the trial result. Since the Freemans, by their own testimony, spent no more money any more often than they would have to maintain the easement for themselves, they could show no detriment.

There was also an attorney’s fee issue (Sorchych had been awarded some), which the court takes a page to explain before saying that it won’t address it, instead simply vacating the award.

The court awards the Freemans their costs on appeal, otherwise denies costs and fees to both parties, and remands. (Remand will apparently revolve largely around Sorchych’s claim that the Freeman’s didn’t simply maintain the road but greatly improved it for reasons of their own.)

Whoever wrote this will surely get the employee-of-the-month award. It is a prototypical example of the Division One style: far too long, chock-full of facts and procedural details that have nothing to do with the holding, with seventeen mostly-quite-long and mostly-quite-extraneous footnotes.

(link to opinion)