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Sotomayor v. Sotomayor-Munoz (CA1 3/28/16)

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This is what can happen when the Supreme Court decides that every cause of action or niche practice deserves its own set of rules.

Mother filed an FED action against Daughter. The trial court entered judgment for Mother. Daughter moved to set it aside under Rule 15 of the eviction rules. The court denied it. Daughter appealed one day later but that was almost 90 days after the judgment.

ARCAP 9 lists the time-extending motions but doesn’t mention any eviction rules. So the court goes on to consider whether the order on a Rule 15 motion is itself appealable as  a “special order . . . after final judgment.” Rules 59 (new trial) and 60(c) are;  the grounds for a Rule 15 motion “overlap” those rules “but are not directly analogous.” An order after judgment is “special” – i.e., appealable – if it raises different issues than an appeal from the judgment would and if it relates to the judgment, its enforcement, or its execution. Daughter argued that her motion was akin to a new trial; the court decides, based on the details of her particular arguments, that it was more of a challenge to the merits of the judgment. It therefore fails the “different issue” test. Appeal dismissed.

So the law is that an Eviction Rule 15 motion might be appealable when it is but isn’t when it isn’t.

That’s not the Court of Appeals’ fault. Our guess is that the eviction people would have wanted Rule 15 to be time-extending but that they forgot, unlike the family law people, to hook their rules into ARCAP 9. We blame it on the Supreme Court for allowing, and at times encouraging, the balkanization of the rules. With vanishingly few exceptions these separate rules are necessary only to the ease and self-esteem of those who use them.

(Opinion: Sotomayor v. Sotomayor-Munoz)

Kresock v. Gordon (CA1 3/17/16)

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This is another case (like Hoag) interpreting the supersedeas-bond statute. The court holds that “attorneys’ fees imposed as sanctions . . . are not ‘damages awarded’ for purposes of calculating “ the bond.

The trial court dismissed the plaintiffs’ case and as sanctions awarded against them the defendants’ attorneys’ fees. The plaintiffs appealed. Under the statute the amount of the supersedeas bond is normally the ‘total amount of damages awarded excluding punitive damages.” Since there were no damages the plaintiffs took the position that there need be no bond. The trial court disagreed and refused to stay the judgment; the plaintiffs took special action (after filing a motion to stay directly with the Court of Appeals, which denied it and basically told them to take special action instead).

The Court of Appeals accepts jurisdiction and, in a way,  grants relief. Various cases have held that attorneys fees are not “damages.” Jantzen did so in the context of a supersedeas bond. The plaintiffs tried to distinguish it because in that case fees were awarded under 341.01 (contract case) rather than as a sanction. But as in Jantzen the fees were not part of the substantive claim; they were not “a legal consequence of an original wrongful act.” And the court says that the statute’s exclusion of punitive damages includes amounts awarded as punishment. Finally, 12-349, under which these sanctions were awarded, distinguishes between fees and the doubled fees that it allows to be awarded and calls “double damages.” But here the court has over-analyzed things; if the trial court had doubled the fees would that have made them “damages” for fixing the bond?

The court does not stay the judgment nor instruct the trial court to do so. The court “grants relief by ordering that the award of attorneys’ fees as sanctions” are not “damages” for purposes of a supersedas bond. But that’s a conclusion of law, not an order. Our appellate courts like to take a hands-off attitude toward supersedeas bonds nowadays; the failure to remand with instructions, though, turns this into a sort of advisory opinion that they aren’t really supposed to be in the business of.

We have to suggest again that the legislature take another look at the statute. (For some reason we’re not sure that our last suggestion sent them all running to the books with their red pencils.) Having been written to address a particular problem (that of capping bonds when verdicts are huge) it seems to have in mind only very traditional, damages-only judgments. But those are not the only type that exist and they are, as we have also suggested before (with equal impact on public consciousness), a vanishing species.

(Opinion: Kresock v. Gordon)

Carter v. The Pain Center of Arizona (CA1 2/2/16)

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A case discussing the elements of medical battery.

The plaintiff went to a doctor for a spinal injection to be given under sedation. He gave her the shot but didn’t sedate her. The shot must have worked since she sued for battery rather than malpractice. The trial court gave the RAJI battery instruction requiring harmful or offensive contact. From a defense verdict the plaintiff appeals.

Her argument is that in a medical-battery case the question is not whether the intentional touching was harmful or offensive but whether it was consented to. The Court of Appeals agrees. “A patient need only prove she was damaged when the physician wilfully [sic] performed a procedure to which she did not consent.” (Apparently the author or the author’s spell-checker is British; in America “willful” has been standard for a few generations now.) (LATER EDIT: The court has today — May 10, 2016 — issued a “corrected” opinion; as far as we can tell the only change is to correct that spelling error. That explains why our date for this case may differ from the one on the opinion you read.)

The defendant tried to argue in various ways that the error wasn’t important but wasn’t helped by his closing argument, which had been that the RAJI instruction requires “intent to harm.”

(link to opinion)