The reason lawyers make ridiculous arguments – apart from not realizing that they’re ridiculous – is that once in a while some judge buys them. Witness this special action about a supersedeas bond.

Gravel Resources of Arizona obtained an $18.4 million judgment against Salt River. Salt River asked the trial court to set the amount of the bond at $5.5 million, arguing that it couldn’t afford a larger one. The trial court thought that it didn’t have the authority to do that, so Salt River took special action.

ARCAP 7(a)(2) clearly says that the trial court can set the bond in an amount different than the judgment. But Gravel Resources quoted a passage from Bruce Church v. Superior Court, 160 Ariz. 514, for a proposition that the court accepted (paraphrasing a bit): the court must require a bond in the full amount if the appellant is too poor to post it. The trial court’s order seemed to recognize that that doesn’t make any sense but blamed Bruce Church.

The thrust of this opinion is that that is essentially the opposite of what Bruce Church, and the cases it cited, said. There are typically two situations in which you’re looking at 7(a)(2) relief: when the appellant is so poor that it can’t post the full bond and when the appellant is so rich that it doesn’t need to. Under Bruce Church there must, in the latter case, be objective evidence that the appellant can pay the judgment. But that requirement doesn’t apply (and this is where the trial court went wrong here) to the former case. If the appellant is too poor to pay, the trial court can give it a break.

The Court of Appeals then addressed the the issue of “what factors the court should consider” in doing so. (Perhaps this issue was raised in the Petition; it wasn’t necessarily raised by the facts or the proceedings below.) The opinion’s analysis of the factors – as usual where “factors” are involved – consists more of a reference to facts that seem to be affecting the court in this case than a statement of principles that will help much to decide the next one. In any event, as near as we can figure it the factors are (1) the collectible value of the debtor’s assets as of the date of judgment, (2) the degree of their liquidity, (3) any “complexities” the creditor would face in collecting the judgment, and (4) what assurances there are that the debtor’s financial condition will not deteriorate during the appeal. The opinion then tells us – as always where “factors” are involved – that “these factors are not exclusive.”

The case was remanded to the trial court for determination of the bond in light of this opinion.

(The back-story here is that Salt River’s owner has plenty of money – but its an Indian tribe. The trial court had ruled that the waiver of sovereign immunity applied only to the sand and gravel operation, from which the assets of the tribe are carefully insulated. Dealing with tribal businesses is not necessarily a bad thing but too many people do so without fully realizing that the chances of recovering from tribal assets is – unless the tribe has been badly advised – essentially zero.)

There must have been a helluva lot of money at stake.

After her husband was murdered, Suarez (“Wife”) made claims under his two term life insurance policies. The carriers (AmFam and Fidelity) were reluctant, in part because she was a suspect in his murder, so they filed interpleader actions. The carriers paid the money to the clerk and the case became a contest between Wife and  the husband’s sister (“Sister”), as P.R. for their mother (“Mother”), who has been previously been the policies’ beneficiary.

The case went to a bench trial. The trial court found that the AmFam change of beneficiary (from Mother to Wife) was a forgery but that the Fidelity change was valid. Wife and her son pleaded the Fifth; based on the resulting inference and on other evidence, the court found that Wife would be found guilty of her husband’s murder.

The court therefore ruled for Sister since A.R.S. 14-2803 says that you can’t be an heir or beneficiary of someone you murder.

Wife appealed; there really must have been a helluva lot of money at stake.

She argued, first, that the evidence was insufficient to support the conclusion that she murdered her husband. The opinion therefore recites the ample evidence of her guilt.

Wife next argued that the statute requires that she be the “killer” and that her son might have done the actual killing. The court held that it even if she had her son pull the trigger she would be criminally accountable for murder.

Wife argued that she can’t be held responsible for murder because there was (in the view of the police) no probable cause to arrest her. But the statute does not require probable cause; it simply requires that the trier of fact find that she “would be found criminally accountable.”

Wife argued that the premiums were paid with community funds and that the statute can’t eliminate her community-property interest. The statute says that “A wrongful acquisition of property or interest by a killer not covered by this section shall be treated in accordance with the principle that a killer cannot profit from that person’s wrong.” The court held that since the Legislature created community property, the Legislature can limit it, and the statue limits it so that it doesn’t apply to murderers. It also cited a California murder-for-insurance case that resolved the community property issue by holding that term policies should be valued as of the moment before the murder – when they have no cash value.

Finally, Wife argued that the evidence was insufficient to support the finding that the husband’s signature on the AmFam change-of-beneficiary form was a forgery. What she apparently meant – and what most who challenge findings really mean – is that the trial court should have favored her evidence, or looked at it all differently. But what she had to show is that there was no evidence to support the finding, and of course she couldn’t.

So what do Wife and her lawyers end up with after about four years of litigation? A record of pleading the Fifth to murder, pointing the finger at her son, raising fairly laughable  arguments (except the decent community-property argument), and an opinion publicizing it all to the world. There must have been . . . well, you know.

(Brief editorial: The court referred to 14-2803 as the “slayer statute” as, presumably, did the parties. The tendency of lawyers and courts to refer to statutes by name is a relatively recent phenomenon. Legislatures have done so for years but that’s a game for laypeople that we didn’t used to play.  Call your statute “slayer,” or whatever, if you will but don’t make the mistake of thinking that that’s somehow a mark of your sophistication and experience; it is rather the opposite.)

THIS OPINION HAS BEEN VACATED.

This tort case discusses the admissibility of remedial measures under Rule 407.

Plaintiffs’ decedent was killed in a car crash near an intersection on Highway 60. They sued the State for negligent design of the roadway but lost at trial. They appealed, challenging (insofar as the published opinion is concerned) the trial court’s exclusion of evidence that, after the accident, the State installed additional warning signs at the intersection.

Plaintiffs argued (1) that the new signs didn’t constitute “remedial measures” because the State didn’t know about the accident when it installed them, (2) that, even if they did, the trial court should have allowed the evidence under the “other purpose” exception in order to rebut the State’s comparative negligence allegations and to impeach the State’s witnesses regarding knowledge of the danger. An equally interesting issue is one that Plaintiffs didn’t quite realize, it seems, that they were making: that a change of conditions could allow admission of remedial-measures evidence.

The Court of Appeals affirmed.

There is a split of authority in other states on whether a remedial measure must be taken in response to some specific event. This opinion holds that there is no such requirement because the rule doesn’t say so; it refers simply to measures  taken “after an event . . . which if taken previously, would have made the event less likely to occur.”  The court also made the policy argument – that people would be reluctant to make things safer if the rule were narrowed.

The evidence also can’t come in to rebut comparative negligence, because the object of that would be to increase the State’s degree of fault. In other words, the evidence would bear on the State’s negligence, which is what the rule prohibits.

Plaintiffs also argued that the evidence should come in to rebut the State’s “open and obvious” defense. The court pointed out that “open and obvious” is part and parcel of comparative negligence. (This has  been true for a long time; most talk about “open and obvious” is obsolete nonsense, proof of how fond is the legal mind of antique formulae that sound like they must mean something.)

Reading between the lines, “open and obvious” seems to be how Plaintiffs characterized something the State argued rather than a separate defense that the State tried to assert. Apparently,  the Plaintiffs got mixed up by a federal case that allowed evidence of remedial measures because they had changed conditions so much that that plaintiff could no longer rebut the defendant’s argument – which, in that case, was that the condition had been open and obvious.

The court addressed the argument that a change of condition could allow evidence of remedial measures by saying that the condition in this case hadn’t significantly changed – save for the addition of signs to the existing roadway – and because other evidence was available to the Plaintiffs to rebut the State’s assertion (namely, a witness, photographs, and an accident report all indicating that visibility at the intersection was limited, rebutting the State’s argument that it wasn’t).

Finally, the court pointed out that to allow evidence of remedial measures to prove that the State knew of the danger would – since knowledge of the danger is an element of liability – allow it to prove evidence of negligence (which is, again, precisely what the rule prohibits).

We haven’t seen the briefs, so you may take it as coincidence that we are reminded just now how difficult it can be for appellate courts to deal with cases the appellant has not briefed well.