In this case the court decided that it needed to figure out what “litigation” is.

Canon hired Hirsch to represent her as a creditor in a Chapter 13 bankruptcy; she had lent the debtors money and had a security interest in some property. Hirsch had the property sold at auction but it brought only a small amount. Meanwhile, the Chapter 13 was converted to a Chapter 7.  The deadline for filing an objection to discharge was December 27, 2004; Hirsch did not file one and the debtors were discharged on January 4, 2005. Canon sued him for malpractice, filing her Complaint on January 3, 2007. Hirsch moved for summary judgment, arguing the statute of limitations. The trial court granted it. The Court of Appeals reversed and remanded.

If malpractice occurs during the course of litigation, the claim does not accrue until the litigation is concluded. Canon argued that Hirsch’s malpractice occurred during the course of the Chapter 7 proceeding and that her claim did not accrue until its conclusion (the January 4 discharge). Hirsch argued, apparently (its a shame that a 28-page opinion requires some reading between the lines to figure out what one of the parties argued), that a non-adversarial bankruptcy proceeding isn’t “litigation.” (A Chapter 7 isn’t considered adversarial until the creditor files an objection, which is what Hirsch didn’t do; until then its a ministerial process that happens pretty much automatically.)

To figure out what “litigation” is, the court first spends five pages analyzing Arizona cases before deciding that they don’t answer the question. Most of this this does nothing whatever to advance the analysis – perhaps the court thought we would find its stream of consciousness entertaining – except perhaps for one case that says that “bankruptcy litigation” is “litigation.”

The court then reads the dictionary, and definitions in a few cases, and decides that “litigation” is an adversarial proceeding. The aforementioned “bankruptcy litigation” is adversarial. The court spends four pages explaining that there is a difference between adversarial and non-adversarial  Chapter 7  proceedings. That’s the explanation you got in the parentheses a couple of paragraphs ago: before creditor’s objection, not  adversarial; after creditor’s objection, adversarial.

The court therefore held that Hirsch wasn’t doing litigation for Canon.

The dissent argued that this is a “hypertechnical analysis” and that “litigation,” according to one dictionary, means to subject to legal proceedings. In response, the majority pointed out what should have been a principal point of its analysis: if you don’t have an adversarial proceeding there’s no reason to toll the statute until the end of it. The point of tolling is that you don’t know what the damage will be, or whether there will be damages at all, until after trial, appeal, etc. But Canon’s claim was dead on December 28; nothing that happened later could change that. The majority’s analysis is not hypertechnical, it just seems so because its made in such a silly, awkward way.

That isn’t the end of the opinion or the case, though, thanks to the discovery rule. In analyzing this the court first spends an inordinate amount of time deciding that the claim accrued when Hirsch missed the filing deadline (not entirely the appellate court’s fault, perhaps, as the trial court seems to have focused on the auction rather than the missed deadline). Why it bothers to do that isn’t crystal clear since it then says, wrapping things up abruptly, that since  the record doesn’t show that Canon knew or should have known of the negligence before  January 4, 2005, Hirsch can’t get summary judgment.

This question might have been clearer in the days before every bureaucrat was a “judge.” Once upon a time we called them bankruptcy referees, industrial commission hearing officers, etc. But neither they nor the lawyers who dealt with them liked that; they decided that lawyers who dealt with real judges in real courts looked down on them – which was often true, for pretty good reason. So nowadays everybody is a judge in a courtroom, and the rest of us are all “litigators,” whether we try cases in front of juries or file paperwork with some executive-branch clerk.

[THIS OPINION HAS BEEN SUPERSEDED]

This is a long but lightweight opinion about the borrowed-servant doctrine.

Tarron worked for Phelps Dodge at the Miami smelter. He fell through a gap in a platform left by the removal of an access ramp. Bowen supplied the employees who had removed the ramp, so Tarron sued Bowen under respondeat superior. Bowen argued that the employees had been lent to PD and that Bowen had no right to control them. On cross-motions, the trial court granted summary judgment for Tarron on this issue. Bowen then lost at trial and appealed.

The Court of Appeals reversed, finding questions of fact. Tarron’s argument was that the contract between PD and Bowen assigned control to Bowen. But there was testimony that that provision didn’t apply or wasn’t followed. The court held that the contract was not necessarily controlling and that the jury can consider all the evidence.

Tarron also argued that Bowen could have respondeat superior liability even if PD did as well, since a servant can have two masters when the two have a joint right to control. But joint control is a question of fact, which was controverted here.

And that, 31 pages later, is it. It is hard to understand why this one was published. There is nothing novel here legally, which the opinion makes clear by discussing nearly all the cases at great – and entirely needless – length. The issues are neither complex nor unusual. And the opinion is hardly a sterling example of the art – it is ill-organized and much, much too long.

The issue here concerns an award of attorney’s fees in an appeal from an administrative decision.

Keystone installed tile in Kang’s house. Kang complained to the Registrar of Contractors that Keystone did a bad job. The Registrar investigated the claim and revoked Keystone’s contractor’s license. Keystone sought judicial review of that decision; the Superior Court upheld it. Kang then successfully moved for his attorney’s fees in the Superior Court, arguing that the action arose out his tile-installation contract with Keystone. Keystone appealed the award of attorney’s fees. The Court of Appeals reversed.

The opinion first points out that, while an administrative proceeding before the Registrar has been held not to be an “action” under 12-341.01, Kang was asking only for his fees in the Superior Court review, which is an “action.”

The question then becomes whether the action arose out of contract.

The court held that it did not. The “basis for the action is purely statutory.” The Registrar had acted under 32-1154(A), which specifies when the Registrar can revoke a contractor’s license. The issue in the Superior Court was whether the Registrar’s action under that statute was valid. The Keystone-Kang contract, said the appellate court, was not the “cause or origin” of the matter and was peripheral to whether Keystone had violated its contractual duties as a contractor.

Kang argued that the problem here was bad workmanship,  that the statutory duty to perform in a workmanlike manner  is taken from implied warranty rules (as the court hints but does not actually point out, the duty is stated not in the statute but in the Administrative Code), that he would get fees under implied warranty, so he should get fees here. But the Registrar sanctioned Keystone under the statute, not the contract. (For reasons not stated in the opinion, Kang didn’t sue Keystone for breach of contract.)

The opinion is just a trifle flabby but is otherwise nicely written. It does not, though, address one question that probably occurs to you: in a statutory dispute between the Registrar of Contractors and Keystone, why was Kang even a party? Perhaps because an appeal from an administrative agency determination must include as defendants all other parties to the administrative proceeding; if so, Kang was presumably there because the Registrar included him in its administrative Complaint, not because Keystone wanted to sue him.

And what, you ask, was the Registrar’s position in this appeal? The Registrar – that zealous protector, that tireless civil servant, that stalwart defender of the common homeowner against rapacious and incompetent tradesmen – punted. The Registrar appeared only as a “nominal party,” a maneuver by which the State lets the homeowner bear the burden – at the homeowner’s expense – of trying to uphold the Registrar’s decision so as to escape its own liability for attorney’s fees (under a separate statute) if the homeowner loses.