Author Archives: unknown

Estate of McGathy (12/2/10)

Posted on by

This probate opinion demonstrates once again the evil of footnotes.

“The issue for decision is whether, in an unsupervised administration, an order requiring nonprobate transferees to pay a pro rata share of estate taxes is appealable under § 12-2101(J).” The issue is actually whether, in an unsupervised administration, an order on a petition for instruction  — whether about taxes or anything else – is appealable under § 12-2101(J). But that would have telegraphed the result since the question almost answers itself.

McGathy’s PR petitioned the Superior Court for instructions on who should pay the taxes. The court ruled on that and included Rule 54(b) language.  An unhappy beneficiary appealed. The Court of Appeals dismissed it sua sponte, ruling that only the final decree distributing an estate is appealable, and then refused a joint motion for reconsideration. The parties filed a joint petition for review.

The Court of Appeals relied on a 1979 Arizona Supreme Court case that was almost directly on point – except that it dealt with supervised administration. Supervised administration follows the old rule that the trial court has jurisdiction until the decree of distribution. But in unsupervised administration there isn’t a decree of distribution (basically, the PR distributes and then files an accounting). When the Uniform Probate Code brought us unsupervised administration  it also changed the appeal statute to allow appeal from a “judgment, decree or order entered in any formal proceedings under title 14,” 12-2101(J). A petition for instruction is a formal proceeding and each such formal proceeding is, under the probate rules, separate. The trial court’s order on the taxes ended that formal proceeding. The order was therefore appealable.

The Supreme Court vacates the dismissal of the appeal and remands to the Court of Appeals.

It’s hard to see how the Court of Appeals got this one wrong unless it felt that the earlier case was close enough that the Supreme Court would have to make the call. (We presume that this wasn’t one of those setups designed to make some law for a niche practice since the parties needn’t in that case have bothered to ask for reconsideration.)

This is a clear, brief opinion marred only by a we-must-be-right-because-other-courts-think-so-too paragraph and, mostly, by two long footnotes near the end.

The first footnote suggests consolidation to avoid multiple appeals from multiple formal proceedings. We’re not fans of footnotes trying in advance to administer to the procedural problems the opinion will create; lawyers and trial judges can figure things out. But if this had to be done, a brief parenthetical clause could have done it better.

In the second footnote, someone either got mixed up or is trying to pull a fast one. It purports to mention – and, effectively, to overrule – some language in an earlier Court of Appeals case. But the language actually comes from the Arizona Appellate Handbook (which the footnote does at least mention, in passing, in parentheses) based on the same Supreme Court opinion that the Court of Appeals relied on. If this is a backhanded way of criticizing the Court’s own case then it should of course be done fore-handedly, so to speak. It’s not as if Justice Struckmeyer will be offended and dis-invite you to his next barbecue; he has passed to his reward. In any event, if the language – wherever it comes from  — is important enough to warn against then it is important enough to address in the body of the opinion. Surely the opinion should have said something like “the Arizona Appellate Handbook is wrong – or, at least, misleading – about this.” Especially since the Handbook still says the same thing, and has for almost thirty years.

(link to opinion)

In Re Pinal County Mental Health No. MH-201000076 (CA2 11/22/10)

Posted on by

This mental-health opinion concerns an alleged conflict between statute and court rule. It comes to the right result but we’re not sure how.

This is an appeal from an involuntary commitment order. The statutes require that two physicians examine the patient before commitment; in this case one had done so in person, the other by “telemedicine.” The Supreme Court had already ruled that that isn’t good enough so in this case the state came up with a new argument: the statutes are unconstitutional because they conflict with Rules 702 and 703 governing the admission of expert testimony. This opinion holds the statues constitutional.

The opinion correctly cites Seisinger v. Siebel as the controlling precedent. Under Seisinger, if a statute and a court rule conflict then the statute prevails if the matter is substantive, the rule if it’s procedural. It’s a two-step analysis: 1) is there a conflict; if so, 2) is it substance or procedure.

But “In this case, the analyses concerning whether the statutes and rules conflict and whether the statutes are procedural or substantive are interconnected.” Why? It’s hard to know if the opinion thinks it explains that. In any event, the opinion goes on to conclude that 1) the statute and rule do not conflict and 2) the statutes establish a substantive burden of proof, as Seisigner permits. “Therefore [the statutes] . . .  are constitutional.”

The problem is that this misses Seisinger’s basic point, which is that the legislature can make procedural rules: “the legislature and this Court both have rulemaking power.” If statute and rule do not conflict then whether the issue is substantive or procedural doesn’t matter. It is reasonable to say “they don’t conflict and even if they did it’s substantive” but that isn’t what this opinion says. It says that the statue is constitutional because it doesn’t conflict and it’s substantive. The permutations of that formulation are incoherent.

(link to opinion)

Thompson v. Pima County (11/16/10)

Posted on by

We may have to stop blaming the government for these notice-of-claim cases. They used to arise because its lawyers were trying to create overly exacting standards for them. Now that the law is fairly well established we seem to be seeing a shift to cases in which the claimant  blew it. 

Mrs. Thompson ran off the road, overcorrected, and flipped over. The Thompsons sued Pima County, claiming that potholes contributed to the accident. The County moved for summary judgment because they hadn’t filed their notice of claim within the required 180 days. The Thompsons contended (“as we understand their argument,” the court says, always a bad sign; and the recitation of facts having already told us that Thompson ran off the road because she was eating a granola bar, you know where this is headed) that the period for filing a notice doesn’t start until the claimant has facts sufficient to make it. They said that that wasn’t until they got a report from their expert – even though both a deputy sheriff and the accident report had told them within a few days that the road may have had something to do with it and even though Mr. Thompson had suspected that based on his own examination. The trial court granted the motion; the Court of Appeals affirmed.

Accrual of the cause of action and facts sufficient to support the notice “are distinct concepts.” Accrual comes “when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition which caused or contributed to the damage,” § 12-821.01(B).  “Facts sufficient”  is from a different paragraph, § 12-821.01(A): the notice must contain “facts sufficient to permit the public entity or the public employee to understand the basis upon which liability is claimed.” That there is 180 days between them emphasizes that they are different things. The discovery rule is built into the statute but in this case there was no question of fact that the Thompsons had plenty of knowledge to file a notice within the 180 days.

(link to opinion)