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Ahmad v. State (CA1 7/12/16)

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(NOTE: The Supreme Court vacated this decision for reconsideration in light of Soto v. Sacco, 242 Ariz. 474 (2017). The Court of Appeals’ “reconsidered” decision is here.)

This opinion appears to establish that, at least in a wrongful-death case, there can be no remittitur when the damages are strictly emotional.

Plaintiffs’ son was killed when his car was struck by one being chased by DPS officers. The jury awarded $30,000,000; but it also held the state only 5% at fault, resulting in a net award of $1,500,000, so which of those numbers the jury came up with first is interesting speculation. In any event, the state moved for remittitur. The trial court granted it in a rambling minute entry that showed no particular grasp of the law (at least in the part quoted by the opinion) and found that $10,000,000 was “the reasonable value of damages.” Plaintiffs appealed.

The Court of Appeals reverses. It first discusses new trial/remittitur law; this is basically cut-and-paste from other cases. The court seems to be saying that a remittitur order needs to explain why the verdict is exaggerated compared to the evidence, not simply announce a different standard of fairness.

But the court goes on to make clear that this isn’t merely a procedural case. “We discern no lack of evidence to support the damages awarded in this case.” The court doesn’t specify what evidence it discerns to justify $30 million for the loss of an adult son (the opinion neglects to point out that he was an adult). The trial court didn’t find that the verdict was the result of passion or prejudice; the opinion nevertheless feels it appropriate to say that no “such finding would have been supportable.” Having inserted this bit of dictum, the court discerns no reason to explain it.

(Its not entirely clear but one of the defendant’s arguments might have been that the jury improperly applied the damages instruction by awarding something to “send a message,” as Plaintiff’s counsel was allowed to ask it to do, even though punitive damages were not at issue. Or perhaps it wasn’t an argument, as the court doesn’t address it except to suggest, as courts tend to in wrongful-death cases, that the statute’s “fair and just” language covers a multitude of sins.)

The state did definitely argue that the verdict was excessive compared to past wrongful-death verdicts. The court rejects a comparative approach, for various reasons.

First, the idea of using comparisons relies on “a seventy-five-year-old” case. Its hard to know why the court thinks that a criticism since its opinion had earlier relied on a 63-year-old case that in turn relied on, and quoted at length, a 204-year-old case. (Brief style point: A few style guides do still recommend writing out numbers less than 100. Nowadays the limit is more like twenty. But it would be nice to think that the court is actually using a style guide, however antiquated.) Also, another case that did use comparisons (Desert Palm Surgical Group; this opinion never gives a full cite of it and so doesn’t reveal that it came down eighteen months ago) was, we’re told, not similar to this one because it was based on lack of evidence of special damages. (The relevant paragraph in Desert Palm Surgical doesn’t actually mention special damages except perhaps by saying “the verdict in this case . . . simply cannot be reconciled with other Arizona civil jury verdicts, especially given the record before us.”)

Second, “the crude statistical approach . . . is simply at odds with” the statute. There follows a long paragraph that doesn’t mention the statute nor explain why its language precludes comparisons, “crude” or otherwise. Except that, a page or so later, the court tells us that “we read the legislature’s commitment of damages to the jury’s sense of justice as a broad appeal to the jury’s conscience.” And if the jury’s conscience says $300 million? Or $3 billion? Well, at some point even this court would presumably discern passion or prejudice rather than mere conscience, and we will be interested to see it explain some day how and where it discerns the difference. But its analysis does not suggest that there would at any point be a basis for remittitur.

(Another reason why comparative analysis is “unpersuasive” is that “the trial court’s own order” did not use it. Huh? So the wrong approach might have been the right one had the trial court used it?)

For a shorter but more helpful analysis of remittitur, though not in a wrongful-death context, see Desert Palm Surgical, the opinion this court doesn’t quite want to admit it issued last year. That one manages to cite what is, at age 44, still probably the leading case, Creamer v. Troiano.

(Opinion: Ahmad v. State)

Schlussel v. Gerlach (CA1 7/5/16)

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“We . . . hold that the time to renew an amended judgment runs from the time the amended judgment is entered.” Well, no, that’s a truism, not a holding. The real holding is that “such renewal is effective as to all relief granted in the amended judgment.”

A court entered a money judgment and then, several months later, entered an amended judgment that added attorney’s fees resulting from a motion for new trial and, also, “consolidated all previous awards.” The judgment holder timely renewed the amended judgment but not the original. The judgment debtor filed this action for declaratory judgment, seeking a ruling that only the additional amounts added in the amended judgment were collectible. The trial court granted judgment on the pleadings; the debtor took special action.

The Court of Appeals accepts review but denies relief. The legal issue is, its says, “straightforward”: the effect of a judgment is “ascertained by a construction of its terms,” the amended judgment said that it incorporated the original and therefore it did, and thus its renewal renews the whole thing.

The judgment debtor actually had an argument, based on a Hawaii case. The court mentions it in a footnote, reserving the body of the opinion for criticism of the debtor’s position. But the Hawaii renewal statute specifically applies to the “original judgment” so the case is distinguishable.

The court holds that “timely renewal of an amended judgment serves to renew all components of the amended judgment, even if renewal of an earlier judgment would be time-barred.”

The court feels that to insist on renewal of “all previous judgments” would be a “convoluted requirement.” It was too convoluted for this judgment creditor, who had tried to renew the original judgment but managed to foul up the paperwork. But for those who can clear that hurdle it is of course safer to renew them all. Its just a matter of time before someone relies on this case but has forgotten to write the second judgment so as to include the first. The procedural implications of rolling up judgments seriatim – which is the only truly convoluted part of this –  are problems for another day.

(Opinion: Schlussel v. Gerlach)

Delgado v. Manor Care (CA2 6/28/16)

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THIS OPINION HAS BEEN VACATED

Yet another case involving a long-term care facility.

Plaintiff’s decedent was an elderly patient in Defendants’ care following successful tumor surgery at another hospital. She died in Manor Care of sepsis caused by a number of underlying problems.  Plaintiff’s claims included a count under the Adult Protective Services Act. Defendants obtained summary judgment on that, arguing that the decedent’s age and status had nothing to do with it, that this was at best a malpractice case and not one involving neglect or abuse of a vulnerable person. They also moved for summary judgment on the malpractice claim, though, and the trial court apparently granted it, for reasons not given in the opinion. (The opinion says that “the motion for summary judgment . . . sought dismissal” of the claim and that the claim was “dismissed”, so its not clear what happened nor that the Court of Appeals knows there’s a difference.) Plaintiff appealed.

Defendants’ first argument on appeal was that the judgment on the malpractice claim barred appeal of other negligence claims because of claim preclusion. Yes, you read that right: an issue lost in the trial court couldn’t be appealed because, you see, losing it made it res judicata. Plaintiff must have pointed out that res judicata applies to successive cases because Defendants then cited, as “supplemental authority”, cases holding that it can, too, apply in the same case – when judgment for an agent bars a vicarious claim against the principal.  The court holds that that doesn’t apply here. (We don’t understand why courts continue to allow “supplemental authority” to mean “old cases you wish you’d cited now that you see what your opponent as to say.”)

On the substantive claim the court relies on McGill (2002), which concluded that the statute wasn’t intended to apply to negligence that could happen to anyone, incapacitated or not. It set forth the elements of the claim, including that the negligence “must be related to the problem or problems that caused the incapacity.” The court, reviewing the record, decides, apparently, that there was a question of fact as to whether the decedent could have or would have gotten adequate care for her sepsis if she hadn’t been incapacitated by her tumor surgery, or something along those lines. From what the court tells us of the facts there may indeed be a statutory claim here separate from plain negligence but the court’s discussion doesn’t do much to explain the distinction nor how the McGill factor survives this sort of analysis. In any event, reversed and remanded.

We recently praised Newman for minimizing the use of “APSA.” Delgado uses the acronym 19 times, so its author either hadn’t read our blog or else had and was expressing an opinion of it.

Those who like acronyms also tend to like footnotes; their use here is liberal, with the usual degree of precision. One footnote briefly mentions, for example, that the decedent had been hospitalized for tumor surgery; another tells us (we think, it’s not clear) that the trial court gave some sort of judgment on the negligence claim. Its nice that the opinion mentions, at least in footnotes, the basis of Defendants’ two arguments. And a footnote tells us that the court won’t address Defendants’ claim that Plaintiff hadn’t shown “neglect” because “establishing such a claim is unnecessary to render the grant of summary judgment improper.” What does this obscure double-negative mean? That neglect isn’t necessary? That the evidence raised a question of the other statutory possibilities, “abuse” or “exploitation”? That the summary judgment was on the “incapacitated” issue and that the “neglect” issue is somehow not properly presented? Or does it have a perfectly logical and reasonable meaning that suffers only from not being expressed in English?

The acronym/footnote folks are also commonly affected by shiny-new-toy syndrome. The opinion tells us (in a footnote, naturally) that “claim preclusion” means “res judicata” and that it will use the former, “more modern” term. We wonder how many more decades will pass before those who like the term realize that they must either declare victory or admit defeat. Using a newer term that they (accurately) feel they must for clarity’s sake, after many years, still  define using an older term is just silly. Use one or the other, kids. As for which to use, what we said here still applies.

(Opinion: Delgado v. Manor Care)