THIS OPINION HAS BEEN VACATED

A personal-jurisdiction opinion, long (33 pages) but not of earth-shattering importance.

TPG is an investment outfit that sells insurance on the side, or vice versa. One of its insurance clients found out about its investment activities and sent it, with his brother’s permission, a report about the brother’s California mining property. TPG ended up investing in the mine. There was a falling-out and TPG sued.

The problem was that the brother and other defendants were California residents. They moved to dismiss, arguing that they did not have minimum contacts with Arizona. The trial court granted the motion; the Court of Appeals affirmed.

If you’ve read other personal-jurisdiction cases, you’ve pretty much read this one. Who sent what where, who called whom, World-Wide Volkswagen and Burger King and G.T. Helicopters and Uberti, the whole nine yards. This is one of those cases that will be cited because it is a shiny, new source for the same, old stuff.

The court apparently feels that its contribution is to discuss the distinction between purposefully availing oneself of the privileges of the forum and purposefully directing one’s activities toward it. The difference, the opinion tells us, is that the former applies to contracts while the latter applies to torts and is subdivided into a three-part test involving (1) intentional acts (2) aimed at the forum, which (3) caused harm the defendants should have known could happen there.

The court says that the distinction is “a major crux” of the appeal. (Usage notes: “Major crux” is painfully redundant. And there is only one crux.) That might be right if jurisdiction were proper under one analysis but not the other. All the court really means is that TPG argued the case in those terms.

Personal jurisdiction cases tend to get this sort of over-analyzed, death-by-a-thousand-citations treatment. Judging by the facts in the opinion, it wasn’t actually a very hard case. But this is one to throw into your bag of cites for when you next have the issue.

Another in our why-was-this-published series.

Defendants put up a swing set in their backyard without asking the Homeowners Association’s approval. When it sued them they moved to enforce the arbitration agreement in the CC&Rs. The trial court denied it, finding that the provision was intended to apply to claims with the builder, not to this sort of dispute with the HOA.

After reviewing the language of the CC&Rs, the Court of Appeals agrees. No cases are cited except a few at the beginning, for basic, black-letter propositions about arbitration.

(The only interesting question here might have been whether the arbitration provision gave the arbitrator enough power that Defendants should have proceeded with arbitration themselves, and moved for a stay, rather than to move to compel it, which the arbitration types think can be a shoot-yourself-in-the-foot maneuver. The opinion doesn’t tell us enough to answer it.)

Those of you with swing-set cases in Saguaro Highlands should pay close attention.

This case discusses the issue of duty.

Plaintiff had his oil changed at Defendant’s Jiffy Lube store. A few weeks later he crashed, allegedly because of worn tires. He sued the car people and the tire people, one of whom noticed Jiffy-Lube as a non-party at fault. Plaintiff moved to strike the notice, contending that Jiffy Lube had no duty, but lost and added it as a defendant. He argued that when it serviced his car Jiffy Lube should have noticed, and warned him of, the worn tires .

The trial court granted summary judgment. The Court of Appeals affirmed.

Duty, the court says citing the Supreme Court’s 2007 Gipson decision, depends on the relationship between the parties and on public policy.

The only relationship between these parties was contractual. The court cites a couple recent economic-loss-doctrine cases for the idea that the contract determines the boundaries of liability.  The contract said nothing about looking for tire wear. The fact that the technician could see the tires didn’t imply a obligation to inspect them, even though this court had said something mostly to the contrary in an older case named Reader. The Court of Appeals points out that that opinion had been vacated and doesn’t point out that that had been on other grounds; the real problem is that the Court of Appeals had pretty much pulled that part of Reader out of its hat. But the court adds that Reader isn’t on point anyway since it had to do with a dealer’s work under a manufacturer’s warranty.

As to public policy, the policy is that everyone has a duty to avoid creating an unreasonable risk of harm and those who do create a risk of harm have a duty to use due care. But Jiffy Lube didn’t create the risk of harm. Duty should be limited by the scope of the actual undertaking.

Finally, Plaintiff argued that there was an industry standard to check the tires. But duty is defined by law, not by expert testimony; industry standards relate to when duty is breached but cannot create it.