THIS OPINION HAS BEEN VACATED

[LATER NOTE: This opinion was re-issued on October 1, 2015; the new opinion appears to be almost identical to the old]

Discussing the time for filing a doctor’s lien. This won’t interest those members of the health care professions who file liens approximately 37 seconds after the patient walks though the door, which is after the patient’s lawyer signs a contract agreeing to pay fees that will never actually be charged the patient. But it may be useful to those who don’t specialize in treating “accident victims.” We’re just going to report this one, not editorialize.

Navarro’s auto insurer settled a claim against her arising out of an accident but for reasons unexplained neither it nor the claimant paid one of the doctors. So the doctor, who had filed a lien, sued Navarro to enforce it. Navarro argued that the lien was untimely. The doctor treated from June  to October and filed the lien in September; the statute says it must be filed “before or within thirty days after . . . any services” relating to the accident. Navarro argued that this means within thirty days of the first service; the doctor argued that it means within thirty days of the last. The trial court agreed with Navarro and dismissed the Complaint.

On appeal, the Court of Appeals doesn’t agree with either side and meanders its way to a middle ground. The statute can’t mean last service because the hospital-lien statute allows a lien to be filed after discharge whereas this statute says “before or within thirty days” so there must be a difference, therefore only hospitals can file after the last service. And it can’t mean first service because it doesn’t say “first.” So the statute means this: a doctor’s lien applies to services rendered within the thirty days previous to its filing and to all services thereafter.

Under that theory the doctor’s lien did catch some of the services so the court remands.

Well, maybe we’ll editorialize a little. Is the result correct? Possibly. But what a heckuva way of getting  there. If the absence of “first” is determinative of Navarro’s argument then why isn’t the absence of “last” determinative – or even worth mentioning – regarding the doctor’s argument? Especially when the essence of your own argument is that the statute can’t mean first or last because it doesn’t say “first” or “last”? And why does the hospital statute make its procedure exclusive? What – other than assuming that conclusion – suggests exclusivity? Aren’t there differences between doctors and hospitals? Aren’t the parties right – isn’t the question here what “any” means? Does the opinion largely read that word out of the statute?

(link to opinion)

The court denies “cross-jurisdictional tolling.”

Plaintiffs’ investment failed. Other investors filed a class action in federal court; when it eventually settled these plaintiffs opted out. But in the mean time the statute of limitations against the law firm that had written the offering materials had expired. They sued it anyway, arguing that the statute was tolled during the time they were members of the class. The trial court dismissed. The Court of Appeals affirms.

Plaintiffs argued that Arizona should adopt “cross-jurisdictional tolling,” which means that a class action filing in another jurisdiction can toll the statute. They began by arguing that Arizona has already adopted “inter-jurisdictional tolling,” i.e., an attempted class action in the same jurisdiction tolls the statute until class status is denied. The U.S. Supreme Court adopted that in a case called American Pipe but not all the states have. Arizona cases have referred to American Pipe a few times and one case, to decide a certified question from the Ninth Circuit, assumed that it would apply. But the Court of Appeals points out that even that case expressly did not decide whether it actually does. And it wouldn’t apply even if Arizona had adopted in since in this case the class action was certified as such and was a federal case, not one in this jurisdiction.

The jurisdiction problem is solved by cross-jurisdictional tolling, which some states have adopted. But none of those states has applied it where certification was granted.

Plaintiffs cite some federal cases in which allowed tolling even though certification was granted but the court distinguishes them because the federal system lacks a savings statute. Arizona has one, which both parties said doesn’t apply. “[B]y enacting this general Arizona savings statute, the Legislature adopted a form of cross-jurisdictional tolling, just not in the form Appellants claim should apply to their claims here.” In other words, the tolling statute can apply to filings in other jurisdictions but doesn’t include class actions. The court declines to read class actions into the statute; the wording isn’t there and the statute “involve[s] ‘very delicate policy decisions that properly belong to the legislative branch of government.’”

The analysis isn’t the best organized we’ve seen but generally gets the job done. What we’re not clear on is the court’s attitude toward the savings statute. The court says things apparently intended to imply – or that in any event do imply, whether intended or not – that the savings statute as written would indeed apply, that this opinion should not be read as authority that it doesn’t, and that what the plaintiffs are losing is their argument that something new needs to be added to Arizona law. If so, we applaud the court for limiting the analysis to the argument.

(link to opinion)

The moral being that its better to follow the rules in the first place than to make up arguments about them later.

Though it has been made more complicated over the years, procedure after compulsory arbitration isn’t rocket science. The arbitrator makes a decision; the winner then prepares a form of award and, if there’s no appeal, can get it reduced to judgment. But Phillips tried to skip a step: after winning an arbitration he had the arbitrator sign something he called a “judgment.” Ten months later, when he tried to enforce his “judgment,” Garcia moved to dismiss; under Rule 76d the court “shall” do that if the award isn’t reduced to judgment in 120 days. The trial court denied the motion.

Which creates an interesting procedural situation. Garcia of course argued that the “judgment” was invalid. But if there’s no judgment, how can there be an appeal? As the Court of Appeals points out, the mere denial of a motion to dismiss is interlocutory. It solves the problem by using its discretion to treat the “appeal” as a special action.

Addressing the merits, it then explains the conclusion it has already signaled, viz., that Phillip’s “judgment” was not, in its words, a “true judgment.” (There was, of course, either a judgment or there wasn’t; “true judgment” is redundant and potentially confusing.) It wasn’t a judgment because under Rule 58 only judges and commissioners can issue those.

Phillips argued that since Rule 76 actually says that what’s needed is an “award or other final decision” he had an adequate “final decision” in the form of a “mislabeled award.” He had a case (Bittner 1995) holding in effect that a mislabeled award can still be an award. But the issue here is whether a mislabeled award can be a judgment.

Phillips also argued 12-133E: “The award has the effect of a judgment on the parties unless reversed on appeal.” The court “harmonizes” the relationship between Rule 76 and 12-133E by deciding that the rule requires an affirmative judicial act – the entry of a “true judgment” – and that this “advances the intent” of the statute and is consistent with the statute because it doesn’t render any part of it meaningless. The court does not explain the remaining meaning, if any, of “the award has the effect of a judgment.” The court’s analysis here is conclusory, the sort of thing one reads expecting eventually to reach the meat of and never does. The conclusion is arguably correct but requires wading farther into the deep water of court rule-procedural statute relationships that the court seems willing to go.

The court then adds that in 2007 the present version of the rule replaced older language that was (though the court doesn’t put it this way) much more consistent with the statute. That indicates, the court concludes, that the Supreme Court intended an “affirmative act.” While correct, that begs the question of why the Supreme Court’s intent is more important than the Legislature’s (for purposes of this analysis it may indeed be but that isn’t something that should just go without saying).

The court remands for dismissal without prejudice, that being the flavor of dismissal both parties indicated at oral argument would be warranted if Garcia prevailed.

(link to opinion)