We  were taught in law school that it’s vitally important that the Complaint get the defendants’ names right. “We” as in these bloggers, that is; just in case your professors had no better notion of reality, here’s proof that that’s as much nonsense now as it was then (a long time ago).

Simon fought with police and was taken to the hospital. He sued the “City of Phoenix Police Department,” several officers, and “Maricopa Medical Center”; he served the City and the Maricopa County Special Health Care District, which is what MMC is. Defendants moved to dismiss for various procedural reasons and the trial court granted it. This opinion reverses as to the City and the District and affirms as to the individual officers..

Both the Department and MMC moved for dismissal because they are not entities subject to suit. But the City and the District each had adequate notice that it was the intended defendant and was not prejudiced by the misnomer. Suing in the wrong name was a “purely technical error” the remedy for which was amendment, not dismissal. The opinion also spends some time suggesting that it was the defendants’ own fault that Simon got their names wrong and otherwise trying to excuse his mistake but that is needless – and worse than that if it suggests that some sort of comparative fault is involved. All that matters under the misnomer rule is that the defendant have notice of the institution of the action such that it will not be prejudiced in maintaining its defense on the merits. The court announces that its rule applies where “plaintiff erroneously names a non-jural entity but serves the associated jural entity” but that just puts a veneer of pretension over a simple misnomer situation.

The officers argued that Simon hadn’t made a proper notice of claim, pointing out that as public employees the notice statute requires that they each be served with one. Simon’s arguments make this sound like a jailhouse lawsuit, though the opinion doesn’t say whether it is: he did serve the officers (but had nothing to prove it and the documents say otherwise), and if he didn’t then he mostly did, and if he mostly didn’t then it wasn’t his fault, and if it was then the statute is unconstitutional, and at any rate the judge was biased and didn’t have jurisdiction to rule against him. The court plowed through these arguments in less time that it took with the simpler misnomer issue, affirming the officers’ dismissal.

The District argued that it, too, didn’t get a notice of claim. But Simon sent a notice of claim to the Clerk of the District and that was held sufficient in light of what the court, at least, regarded as a sketchy-to-non-existent showing by the District of who should technically have received it and who in fact received it. The District also argued that the notice of claim didn’t include the information required by the statute but it did not offer the notice in evidence, thereby failing to meet its burden of proof.

Finally, the District argued that Simon didn’t certify whether expert testimony was necessary, as required by statute. But the statute has procedures for dealing with that, so it wasn’t intended to be a basis for immediate dismissal. And Simon’s Complaint alleged that MMC’s security guards, as well as its medical personnel, mishandled him and the statute just deals with the “professional services” of a health-care provider.

It does not take too much reading between the lines to see that this was a problem case that the trial court was probably not sad to be rid of. Under the circumstances, you can’t blame the defendants for trying. But in an age when even lawyers are allowed to make pro-se-type mistakes, the pro ses get more rope than that.

The opinion is about twice too long but since that’s par for the course we prefer to point out something more interesting. The court quotes what Simon had asked for: an “opportunity to [a]mend [c]omplaint if such amendment cures it[’]s defects.” The brackets, presumably,  correct or clarify the original, which is an entirely proper thing to do – unless you get it wrong. “Its defects” was correct. “It’s defects” means “it is defects.” The possessive form of “it” does not take an apostrophe, in order to avoid confusion with the contraction. This causes its own confusion and it’s fair to get confused – we do from time to time ourselves, so please don’t look through all the past blogs for this – but at least we know that there’s something to get confused about. Maybe the court does, too, and was just trying to do its bit to regularize punctuation, but we frankly thing it’s probably just a mistake.

[EDITOR’S NOTE 7/23/10: Our policy is not to change these blogs after posting but it has been brought to our attention that at least some word-processing programs flag “its,” meaning the possessive, as a spelling or grammatical error. Sorry, Microsoft, that just ain’t right. Never trust an machine’s idea of grammar and don’t take for granted that it knows how to spell. That may well be what the court did here, so the mistake may not have been entirely its fault.]

(link to opinion)

This case deals, not elegantly, with the issue of retroactivity.

Lopez sued Continental Tire for personal injury. The accident had happened on the job and  the Fund had paid workers compensation benefits. It moved to intervene in the case. Continental opposed the intervention and the trial court denied it; the Court of Appeals took the Fund’s special action and reversed, of which this is the opinion.

In 2007 a workers’ comp statute was amended to allow the Fund to intervene in a worker’s action. Continental argued that it couldn’t be applied retroactively – the accident happened in 2004 and the case was filed in 2006.

The Court of Appeals first held that this was not a retroactive application. Why not? Because procedural rules do not affect vested rights.

The court next held, in the alternative, that retroactive application is okay here. Why? Because the statute is procedural and procedural statutes can apply retroactively.

So, the court held that procedural statutes do not apply retroactively and that procedural statutes apply retroactively and that therefore this statute did not apply retroactively unless it did, and its all good. Got that?

The problem is that the court thought it was dealing with two different issues when it was dealing with two sides of the same coin. It overlooked the fact that the authorities cited in the first part of the opinion say in essence largely the same thing as those cited in the second part. Retroactivity involves taking away rights already given and vested. Procedural statutes don’t do that. That’s why they are not covered by the anti-retroactivity rule (a substantive statute is not retroactive unless it specifically says it is): their effect is not “retroactive” in the sense that a substantive statute’s is, whether or not applied to earlier facts. If you have substance, you have a retroactivity problem; if you have procedure, you don’t because you don’t have retroactivity.

(link to opinion)