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Thompson v. Pima County (11/16/10)

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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)

Morris v. Giovan (CA1 11/12/10)

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This holds that a Federal Tort Claims Act case does not toll the statute of limitations if it is dismissed for lack of subject-matter jurisdiction.

in 2003 Giovan operated on Morris’ knee at Phoenix Indian Medical Center. In 2004 Morris sued “John Doe” for malpractice in Maricopa County, purportedly to obtain medical records as he claims not to have known whom to sue; suit was dismissed for lack of service. In August 2006 Morris filed in District Court an FTCA claim against the US and also against Phoenix Indian and Giovan, asking the court to take supplemental jurisdiction over the state malpractice claim. That was dismissed in October 2007 because Morris wasn’t suing a federal employee.

Meanwhile, in March 2007, he had filed another state court case, this time naming Giovan. Having blown the statute of limitations, Morris lost that on summary judgment in December. He did not appeal. But in April 2008 he filed a Rule 60(c)(6) motion, arguing that his federal case tolled the statute. (Whether he had made the same argument in opposition to summary judgment – and if not, why not – isn’t explained.) That was denied on its merits (a footnote points out that 60(c)(6) can’t be used for an error of substantive law but Giovan didn’t raise the issue). Morris appealed, even though the minute entry wasn’t signed; his appeal was suspended until it was.

Morris’ claim that his FTCA claim tolled the limitations period is based on a federal statute that says so. But the U.S. Supreme Court held (Raygor), as our Court of Appeals interprets it, that the tolling statute does not apply to supplemental state-law claims if the FTCA claim was dismissed for lack of subject-matter jurisdiction (Raygor was dismissed on 11th-Amendment grounds). The theory is that if the federal court had no subject-matter jurisdiction, it also had no power over supplemental state claims.

Perhaps we shouldn’t complain when Division One gives us an opinion that is only nine pages long. On the other hand, it also has nine footnotes. And it consists, basically, of a discussion of just one case.

As for counsel, perhaps you should give him credit for spending seven years and three lawsuits protecting his client’s claim. We won’t suggest what was perhaps really being protected, at a cost to the client of five years or more. We do wonder how many years ago he put it on notice.

 

(link to opinion)

Arizona Real Estate Investment v. Schrader (CA1 11/9/10)

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We normally wouldn’t blog an opinion about forcible entry and detainer but this one is so depressing that we couldn’t resist sharing it with you.

At a trustee’s sale Arizona Real Estate bought a house that Schrader refused to leave. It filed an FED action and served Schrader by “post-and-mail,” i.e., posting the process in a “conspicuous place” and sending him copies by certified mail. After it obtained judgment against Schrader he appeal, arguing improper service.

There are two types of FED – an FED action under 12-1171ff and a ”special detainer action” under 33-1377 (used to evict renters). Rule 5(f) of the Rules of Procedure for Eviction Actions allows post-and-mail for the latter but follows Rule 4 for the former. ARE filed a 12-1171, so post-and-mail was improper.

It then argued – as, apparently, did the trial court – that the court was actually using its authority to allow for alternative methods of service. But that requires that Rule-4 service be “impracticable” (in English, “impractical”) and there was no showing that it was even attempted, much less that it couldn’t be done.

For lack of proper service, the judgment against Schrader was void. So, instead of getting possession of the house it owns the plaintiff has to start all over (and also to pay Schrader his costs for the first round).

We’re going to assume that there was a lot happening here that doesn’t meet the eye. Because, meaning no disrespect, let’s face it – FEDs just ain’t that hard. They’re one step up from uncontested default hearings. They’re either what you make your living doing a ton of – including the occasional hard one – or what you give the green associates who’ve already shown that they’re not really cut out for court. How could these people have either filed the wrong sort of case or not noticed that their process server had used the wrong method? Having been put on notice that they’d botched it, how could they litigate for a year through two levels of the judiciary rather than cut their losses and start over? What did they tell the client? And are they going to charge it for doing things right the next time?

But what really depresses us are those Rules of Procedure for Eviction Actions. Remember some time back when a special committee spent much time and effort consolidating various sets of civil rules? Like kudzu, they grow back. Eviction actions aren’t the only examples. The demands of the niche practices, based variously on vanity and ignorance, are unending; the willingness of the Supreme Court to cater to them is disappointing. Coming soon: the Rules of Civil Procedure for Changing Names.

(link to opinion)