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Larue v. Brown (CA1 8/19/14)

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The reason for publishing this otherwise fact-intensive case is apparently its decision that the single-publication rule applies to internet posts. That’s the problem.

It seems that Sarah, or Sarah and husband David, posted defamatory statements about the parenting habits of Mindi, David’s ex., and MIndy’s new man, Jeremy. The internet seems to be replacing television – even “reality tv” – as the go-to source for sordid melodrama. Anyway, Mindi and Jeremy sued Sarah and David, who alleged the statute of limitations, their posts having been made over one year before. The trial court didn’t buy it, the case went to trial, and the plaintiffs won. Defendants appealed, again arguing the statute.

The Court of Appeals affirms.

One of the defendants’ arguments was the discovery rule, which the court disposes of briefly on factual grounds.

The other argument was that the defamatory information had been republished within one year. The doctrine of republication is an exception to the single-publication rule – the statutory rule (12-651) that defamation in a book, movie, etc. gives rise to a single cause of action no matter when or how many copies/showings/etc. there are. But a new version or edition or issuance — i.e., a “republication” – is a new defamation that starts the clock again.

The court eventually finds, for factual reasons, that that’s what happened here: the defendants’ rehashing and embellishment of their allegations in the posts’ comments threads amounted to republication.

First, though, the court analyzes the question of whether the single-publication rule applies to internet posts. It quotes the statute, discusses the history and reasons for the rule, and cites some federal cases. “We agree with this reasoning from these other jurisdictions and conclude the single publication rule applies to Internet publications.”

See the problem? The defendants argued an exception to the rule – in other words, they apparently agreed that the rule would otherwise apply to their post. The plaintiffs surely didn’t dispute that. There seems to have been no reason for the parties to brief that issue; the opinion does not mention that they did. Did the court really adopt as the main issue for legal analysis one that hadn’t been briefed or argued? Did it really present, in the guise of the resolution of a legal dispute, what was in truth just some judge’s or law clerk’s or, perhaps, staff attorney’s idea of what the law ought to be? Did it really reach out for a trendy issue that wasn’t properly there?

We don’t know. We didn’t see the briefs. Perhaps there truly was some reason, that doesn’t appear in the opinion, not to do a “we assume without deciding.” Or perhaps the court doesn’t quite consider its conclusion a “holding” (though there is nothing here to warn mere lawyers of that, and in that case there wasn’t much reason to publish this). We would be less suspicious if this were the first time (e.g., here, though if you look through these blogs you’ll find other examples). Its not that the court’s analysis is wrong – off the top of our heads we’ve no reason to think so. But if judges aren’t constrained by the actual issues, if a case can hold whatever it inspires them to write about, then our theory of appeals is just a scheme to fool the rubes.

(link to opinion)

Cuellar v. Vettorel (CA2 8/18/14)

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Now that Rule 68 law has – like so much of our tort law and procedure – moved from a world of clear rules to a murky realm of maybes arguments like this are not uncommon.

In this personal-injury case the defendant made an Offer of Judgment “contingent on the satisfaction of all liens.” At trial the plaintiff received an award that was less than the OJ but more than she would have ended up with had she accepted it and used it to pay her liens. Her lawyer therefore argued that she shouldn’t have to pay Rule 68 sanctions, that the lien amount shouldn’t count. The trial court disagreed; she appealed.

The Court of Appeals affirms. The plaintiff had an Alaska Supreme Court case but the court distinguishes it and says that in any event the terms of our rule do not permit correcting for liens. Even if they did, the result would be an improper comparison between an OJ that did not include liens and a trial award that did.

Whether lien language in an OJ is technically necessary or not, liens have become enough of a problem that its inclusion is understandable. This is an uncommon example of a qualification on an OJ that doesn’t either nullify it or, even if valid under the present version of the rule, make its application difficult to compute.

(link to opinion}

Robertson v. Alling (CA2 8/6/14)

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The court holds that settlement agreements are worthless.

This was a prescriptive-easement case with several plaintiffs and 27 defendants. There was a settlement conference; all defendants, or their authorized proxies, attended. They made an offer that wasn’t accepted. Their lawyer then emailed them recommending that they keep the  offer open. Five defendants emailed him that they didn’t agree to that; he didn’t read the email. A number of emails between counsel then set forth and confirmed the settlement. When the plaintiffs learned that some defendants were making problems they moved to enforce the settlement agreement. The trial court granted the motion, ruling that the defendants’ lawyer had actual and apparent authority.

The Court of Appeals reverses.

The court first decides that it treats motions to enforce settlement as motions for summary judgment.

The court finds that the lawyer had no actual authority; the Robertson’s argument that he did because he didn’t read the email has “no merit.”

The court finds that a question of fact exists as to actual authority. Why? That isn’t as clear. The court cites the traditional rule that “if the client places the attorney in a position where third persons of ordinary prudence and discretion would be justified in assuming the attorney was acting within his authority, then the client is bound by the acts of the attorney within the scope of his apparent authority.” That used to mean what it says. But the court cites a 1992 case called Canyon Contracting, which apparently implied that the principal’s manifestations must include not just placing the attorney in a position but somehow sending signals directly to the other party. What signals (you’re asking) is a good question and the court does nothing to clarify it much by suggesting that the defendants’ presence at the settlement conference might mean not that they were on board with the lawyer but, on the contrary, that he didn’t have authority to settle the case if they weren’t present. It is evidently up to “persons of ordinary prudence and discretion” to assume that things either are as appearances naturally suggest or that they are the complete and counterintuitive (to anyone who has ever actually attended settlement conferences) opposite. Perhaps having 27 clients makes a difference; perhaps that ordinary person should understand that getting 27 fractious ducks in a row can be tricky and temporary. The court does mention that the plaintiffs insisted that they all be at the settlement conference. But nothing in the court’s analysis suggests that there is a difference between one client and one thousand.

So what is the resolution? The court says that under the summary-judgment standard it would normally remand for hearing or trial on the disputed issue. (And that’s certainly a possibility, though its odd to say that that’s something that “normally” happens.) But here it simply sets the settlement agreement aside. Why? Rule 80 (agreements must be in writing or made in open court). The court apparently accepts that the emails were “in writing.” What wasn’t in writing was the clients’ assent to the settlement. Since when does that have to be in writing? The court cites Canyon Contracting for the proposition.

The court isn’t entirely comfortable with this, though, since it finds the need to justify itself in a footnote. Rule 80 does not contain this requirement but Canyon Contracting, the court says, read it into the rule. The plaintiffs did not argue that the court should change Canyon Contracting (presumably because they argued an entirely different set of issues and so had no reason to). Moreover, Canyon Contracting is “long standing precedent.”  The court does not suggest that any other case has followed Canyon Contracting on this point (we haven’t Shepardized it). We used to question a former Supreme Court Justice’s practice of finding a lone case that was wrongly-decided years ago and announcing that it had “established” the law of Arizona. Apparently he has followers after all.

So remember that your settlement agreement signed by counsel is as good as gold – until the other lawyer calls to tell you that his client never really did agree and even if he did it wasn’t in writing so you can’t enforce anything.

(link to opinion)