In re Trust of West (CA2 7/1/20)

These Plaintiffs vaulted over a high bar then tripped over a low one they set up themselves.

They successfully sued to set aside a trust amendment for undue influence. Having prevailed, they applied for fees on various grounds. Defendant objected because Plaintiffs had not requested fees in their petition as required by Rule 54(g). The trial court awarded fees under the common-fund doctrine. Defendant appeals that order.

The Court of Appeals vacates it. The rule says that a claim for fees “must be made in the pleadings” or in  a Rule 12 motion. The rule is mandatory, unambiguous, and makes no exception for fees awarded in equity. (Rule 54(i) does provide for two exceptions — fees awarded as sanctions and fees that must be proved at trial as a substantive element of the claim — but neither applied here.) Plaintiffs did mention fees in their initial disclosure statement but that is insufficient; the purpose of the rule — to encourage settlement — requires that parties be put on notice of the claim “before each stage of the law suit” (quoting Wagenseller 1985, emphasis in original). Plaintiff’s catchall prayer — for ““such other and further relief as the Court deems appropriate under the circumstances” — did not put Defendant on notice. (Once upon a time the formula was “such further relief as the court deems proper” but modern scoring awards bonus points for extra words. Those who know just enough to choose between the two forms are confident that the longer one must be stronger and more sophisticated and protect them in a number of circumstances, though they can’t name any.)

(Opinion: In re the Restated Trust of Crystal H. West)



Heaphy v. Metcalf (CA2 6/18/20)

The court discusses how a medical condition is placed “at issue” to waive the doctor-patient privilege.

This is a wrongful-death case. Defendants sought discovery of Plaintiffs’ medical records, apparently arguing that their life expectancies are relevant to the value of their claim for loss of companionship. The trial court concluded that the claim waives the privilege; it allowed discovery. Plaintiffs brought this special action.

The Court of Appeals accepts it and grants relief. Placing “a particular medical condition at issue” waives the privilege. But “placing a condition ‘at issue’ means more than a possibility the condition could be relevant; upholding the privilege must instead deny the inquiring party access to proof needed fairly to resist the [privileged party]’s own evidence on that very issue.” “The bare assertion of a claim or defense does not necessarily place privileged communications at issue in the litigation, and the mere fact that privileged communications would be relevant to the issues before the court is of no consequence to the issue of waiver.” The court then analyzes a few selected Arizona cases.

Defendants had a 1986 case on point from the Southern District of New York. The Court of Appeals decides that the case is “wholly unpersuasive” because it can distinguish one of the cases the New York court cited. (The opinion is very short and doesn’t cite many cases — those were the days before District judges, even in the S.D.N.Y, had a bevy of career law clerks to do their writing — which one can’t help but feel actually had most to do with its being found “wholly unpersuasive.”)

The court doesn’t tell us whether Defendants had any special reason to question the life expectancy of the statutory beneficiaries. If they didn’t — or even if they did — then the case seems an odd context in which to pursue this argument since the decedent was 93 at his death.

(Opinion: Heaphy v. Metcalf)

Banner University v. Gordon (CA2 5/29/20)

We have elected not to blog this — at least not yet — for one or more reasons set forth in our FAQ. It is a follow-up to Kopp.  The nature of the majority’s analysis reminds one of that case for reasons that are clear enough given who the players are. You may want to read the dissent first in order to be reminded of the traditional view before wading into the majority’s baroque analysis.