Salty was an “intelligent, affectionate, and playful companion” — the love of Kaufman’s life, by the sound of it. Salty died allegedly because of Dr. Langhofer’s negligence, so Kaufman sued Langhofer and his clinic. The complication is that Salty was a pet bird.

Kaufman sued for the vet bill and bird’s value. He also sued for pain, suffering, loss of the bird’s companionship and society, and other emotional-loss claims. The trial court dismissed the emotional-loss claims and instructed the jury that damages were limited to the bird’s fair market value. The case was actually tried to a jury, which allocated some fault to the vet but most to Kaufman and awarded zero damages (Kaufman’s own expert testified that the bird had no market value because of a congenital heart problem).  Kaufman appealed, arguing that he should have gotten damages for emotional distress.

The opinion first takes about six pages to state hornbook law: pets are personal property, if negligently destroyed or damaged you get their fair market value or the reduction thereof. The court distinguished a grab-bag of cases (e.g., bad faith, landlord/tenant) cited by the plaintiff’s amici (PETA and other animal groups) that allowed emotional distress when various property rights were at issue; in those cases “the tortious act directly harmed the plaintiff and affected or burdened a personal, as opposed to an economic or other interest belonging to the plaintiff.” Here, the vet treated the bird, not its owner.

Kaufman next argued that even if the bird had no market value he can recover the special value it had to him. This is another hornbook theory but not one that his lawyer remembered to preserve in the trial court. The Court of Appeals pointed out, though, that “special value” for pets generally doesn’t  include sentimental value, apparently to signal that it wouldn’t have let Kaufman get emotional damages anyway.

In a footnote, the opinion then declines to address an issue raised by the amici but not by Kaufman. According to one of those rules that courts rigorously follow whenever they want to, appellate courts decide cases based “solely on issues raised by the parties themselves.”

Finally, Kaufman argued that Arizona law should be changed to allow him to recover emotional damages because “71% of dog owners and 64% of cat owners consider their pets like a child or family member.” (We know this to be true because the amici quoted a survey that said so. This is the sort of thing that passes for evidence once amici get involved; they used to call them “Brandeis briefs” when lawyers were still educated enough to know who Louis Brandeis was. Love for pets is probably subject to judicial notice but details about cats and dogs is a bit much.) In any event, the opinion pointed out that most courts haven’t bought that argument and that if Arizona were to do so then damages for the death of a pet would be broader than for the death of a person (since they would not be restricted by the Wrongful Death statute or the rules on bystander liability).

But at the end the court throws the amici a bone by mentioning that damages for a pet death might be greater if there was more than mere negligence involved. At least if its a dog; we’re not sure about cats.

(link to opinion)

This is the latest in a line of cases demonstrating that a lis pendens is a dangerous thing you shouldn’t file unless you know what you’re doing. But it ends less than disastrously for the lawyer involved.

Lebaron sued five defendants for breach of contract to purchase real property. Kaufman, the defendants’ lawyer, filed a notice of lis pendens before filing his Answer and Counterclaim. (If you don’t understand why that could be wrong then stop, do not pass Go, and read the statute – 12-1191 – and cases carefully before venturing into lis pendens land.) Lebaron moved to quash and asked for damages of $25,000 plus fees and costs. Kaufman’s response acknowledged his mistake. The court granted the motion and ordered Kaufman (not his clients) to pay $25,000. Kaufman released the lis pendens but didn’t pay the money. The trial court entered judgment against him for $25,000 plus $750 in attorneys fees. Kaufman appealed.

Under A.R.S. 33-420(A) one who files an invalid lis pendens must pay not less than $5,000 or triple the actual damage, whichever is greater, plus fees and costs. Kaufman argued that this means $5,000; Lebaron argued that since there were five defendants it means $5,000 times five. Kaufman won the argument. The Court of Appeals decided that the legislature’s intent was that actual damages be tripled and then the greater of that or $5000 awarded. The person who causes the filing is liable so where, as here, only one person caused it the maximum award is $5000 (plus fees and costs).

The opinion also examines the question of whether the trial court was right in finding that only Kaufman, not his clients, were responsible for causing the filing. The statute has been held to have a scienter requirement. Here it wasn’t met since there was no evidence that Kaufman’s clients either told him to file the lis pendens or knew that filing it when he did was wrong.

The affirmed the judgment as modified — $5000 plus the $750.

(link to opinion)

This pleasantly brief opinion about a consumer debt should have perhaps have been a bit longer.

The Fossetts obtained an auto loan from Amtrust; they defaulted and Amtrust repo’d the car. Amtrust later sent them a 1099-C, which they duly reported in their next return, indicating that the debt had been cancelled. Amtrust then sued them on the debt; they moved for summary judgment based on the 1099-C. Amtrust’s response was captioned “Response to Defendants’ Motion for Summary Judgment and Cross-Motion for Summary Judgment” even though its position was simply that questions of fact prevented summary judgment. The opinion mentions this to explain – or to try to explain, since it is otherwise hard to figure out – why the trial court granted summary judgment for Amtrust.

The question on appeal was whether the 1099-C discharged the debt under Arizona law.

The statute, 47-3604(A), says that a party can discharge an instrument “by an intentional voluntary act” or “by agreeing not to sue or otherwise renouncing rights . . . by a signed writing.” Federal regulations require the issuance of a 1099-C under certain circumstances. Even though the form is called “Cancellation of Debt,” though, not all of those circumstances involve cancellation of the debt.  The court explains in a footnote that this is confusing. Amtrust’s collection manager testified by affidavit that this was one of those non-cancellation cancellations.

The court held that the 1099-C was prima facie evidence of cancellation. (Prima facie is officially English now, since the opinion does not italicize it; we’re apparently just old-fashioned.) But Amtrust’s affidavit was, the court said, sufficient to raise a question of fact as to whether it had intended to discharge the debt.

The problem is that the Fossetts had argued the other part of the statute, “agreeing not to sue or otherwise renouncing . . . by a signed writing.”  Why is sending a form called “Cancellation of Debt,” which by the way requires the [former] debtor to pay income tax on the amount forgiven, not “otherwise renouncing . . . by a signed writing? Well, maybe the form wasn’t “signed” for these purposes, though the opinion doesn’t get into that.

The court reversed the summary judgment for Amtrust, though, finding a question of fact as to whether the 1099-C was required by federal regulation in this case. If not, “then that is a factor bearing on whether the Fossetts remain liable for the debt.” What the court presumably means is that in deciding whether Amtrust intended to discharge the debt evidence as to whether it was required to issue the 1099-C is admissible.