While riding her bicycle in a bike lane in downtown Phoenix, plaintiff Fong rode into an allegedly unmarked excavation trench. There was a factual dispute on whether the bike lane was closed and the signage, but on summary judgment, a court views disputed facts in plaintiff’s favor. She sued the City and the barricade company. The City and barricade company argued the expert statute A.R.S. 12-2602(B) applied, and Plaintiff did not get an expert. The trial court ruled in their favor, and the court of appeals reverses. First, whether expert testimony is required is a legal issue and review is de novo as is whether plaintiff has presented a prima facie case. (We should slow down on the Latin, but the terms are now common place.) The court of appeals fortifies its reasoning with citations from other jurisdictions. Second, as to whether expert testimony is required, if the negligence is grossly apparent to a lay person or within common knowledge, no expert testimony is necessary. The court of appeals relies on the Arizona Supreme Court’s decision in Rossell v. Volkswagen of America, 147 Ariz. 160 (1985). There, the court was reluctant to extend the expert requirement beyond professional malpractice. Lay persons could easily conclude that an excavation in a road without signage or closure is unreasonable and no expert needed. The court of appeals includes several product liability cases involving warnings to consumers as an example, although this unnecessarily complicates its analysis. This is a road maintenance issue and not an issue of design. We have felt uneasiness with the Rossell opinion, its uncertain standard, and its heightened sensitivity to the plaintiff’s bar. We will see if our current Arizona Supreme Court feels this as well.

The Arizona Republic Party obtained review of the trial court and court of appeals decisions to award fees against the Arizona Republican Party and its attorney. The ARP had challenged the hand count procedure for testing ballots in Maricopa County.  That challenge was dismissed for procedural reasons including naming the wrong defendant, requesting the wrong relief, and being late. The lower courts based their decisions on A.R.S. 12-349(A)(1) and (F) which allows an award of fees if a party “[b]rings or defends a claim” without substantial justification, i.e., “groundless and is not made in good faith.”

Judge Lopez authors the court’s opinion, exemplifying his style: plodding, long sentences, interspersed citations, unnecessary prepositional phrases and explanations. He cannot help himself. This sogginess spoils his reasoning. The opinion is 22 pages; it should have been 12. The court agrees that petitioners should have named the Secretary of State instead of Maricopa County, but the requested relief (mandamus) was available, and while ARP could have raised the pre-election procedure earlier, this was not fatal to their challenge. None of this is categorically frivolous. As for “good faith,” whether a lawsuit “is not made in good faith” is not the same as subjective bad faith. The standard is an objective and not a subjective test. The paragraphs worth reading are 38, 40, 44, 48, and 49. Here, the court sets the standards while scolding the lower courts for their arrogance.

link to opinion

Inscription Canyon Ranch prevailed in a declaratory judgment action filed by Talking Rock Land. In a separate memorandum decision, the court of appeals affirms. This opinion concerns Canyon Ranch’s fee award. After prevailing on summary judgment, Canyon Ranch asked for almost a million dollars in fees and was awarded $700,000. Canyon Ranch appeals this ruling and contends the trial court’s reduction was an abuse of discretion because the trial court did not expressly find which fees it believes were excessive. The court of appeals holds no such findings are required so long as the record reflects a reasonable basis for the trial court’s decision. A prior decision, McDowell Mt. Ranch Cmty. Ass’n v. Simons, 216 Ariz. 266 (App. 2007), does not impose such a requirement although it circumscribes a trial court’s discretion. (We usually see a discussion on China Doll, but it is not cited here. We are also of the mind the law is settled on this.) The trial court also did not err when relying upon Talking Rock’s proportionality argument, pointing out block billing, and time spent on other cases. Finally, Talking Rock asserted its own fees were merely $400,000. While the better practice when making such a challenge is to provide details for comparison such as comparable tasks, hourly rates, etc., there was still no abuse of discretion. For anyone wondering, the court of appeals awarded additional fees against Talking Rock in its memorandum decision.

here is the link