We simplify the legal setting  a bit – this was actually an appeal of a remand from an earlier appeal – to focus on the holding

Sheriff Arpaio announced a criminal investigation of Watkins in 2005; his office gave the results to the County Attorney in 2007. But that office didn’t do much with them and, in 2010, formally dropped the  matter.  In September 2011 Watkins sued for intentional infliction of emotional distress, arguing that the investigation was baseless and politically motivated. Arpaio moved for summary judgment based on the statute of limitations; the trial court granted it; Watkins appealed.

The Court of Appeals affirms. 12-821 provides that the one-year statute against “public” (i.e., government) entities accrues when the injured party “knows or reasonably should know . . . the act [or] event . . . that caused or contributed to the damage.” The party needn’t know all the facts, just that some act caused some injury. Watkins knew that in 2005 so his Complaint was untimely..

Before reaching that conclusion, though, the court indicates that Watkins has justice on his side and should have won except for that nasty old statute. Watkins argued that the whole investigation was a “continuing wrong” that didn’t conclude until the investigation was dismissed in 2010. By that he does not mean the existing Arizona theory, which the court mentions and distinguishes, that you can sue for damages caused within the limitations period by continuing acts that began before it. Instead he refers to a theory developed in some other jurisdictions in recent years by which tort claims for multiple acts don’t accrue until the last act. The opinion says that this theory is “not without merit,” that it is part of the “common law,” and suggests that it would allow Watkins’ claim against Arpaio (though how that would work under the facts of this case is not immediately evident since Arpaio had done nothing in and had no control over the matter for several years).

The opinion includes a standard-of-review paragraph. It is just as useless as such paragraphs always are but, having mentioned several times that they result from the court’s mechanical methodology, we have stopped commenting on them. (We’ve also stopped praising opinions in which they don’t appear or appear for some actual purpose; mea culpa, even we get issue-weary.) So why mention this one? Because it is headed, not “Standard of Review,” but instead “Legal Principles.” The section after it is headed “Intentional Infliction of Emotional Distress.” Apparently, intentional infliction is no longer considered a legal principle. Or else it is a “legal principle” but not the sort of legal principle which, by some standard known only to the court, merits inclusion in a paragraph devoted to legal principles. Or else the court thinks of procedural principles as “legal” and substantive principles as . . . something else. Or else someone couldn’t bear typing “Standard of Review” for the 90th time but equally couldn’t bear just skipping the whole thing.

(link to opinion)

A statute (12-25108) and ARCAP 7 that reflects it nowadays provide a formula for figuring the amount of a supersedeas bond. The issue here is whether, when the formula doesn’t apply, they prevent the trial court from requiring any sort of security.

This is the same case as Hoag v. French; go there for the underlying details. At some point the trial court made a ruling that resulted in this special action. To recap: Hoag had attempted to protect his substantial trust assets from a default judgment by appointing an offshore trustee; the earlier opinion removed the trustee from the proceedings but the bank continued its collection efforts under an equitable judgment that said it could and that enjoined Hoag from interfering.  Hoag moved to stay that judgment; for reasons not stated in the opinion the bank did not object to the stay itself. But Hoag wanted a stay without filing a supersedeas bond, on the theory that the new bond formula is linked to a money judgment and that since the judgment in question did not award money no bond was called for. The trial court agreed with Hoag; we’ll cut it some slack because the formula is new and the statute not particularly well thought-out. The bank took special action.

The Court of Appeals accepts it as an issue of statewide importance. The bank had apparently framed the issue as whether use of the formula is required only for money judgments; the trial court ruled that it applies to all actions. The appellate court reframes the issue as whether the statue and rule “bar a superior court from taking other steps to preserve the status quo or the effectiveness of a judgment it has stayed pending appeal.”  The opinion says that this is “narrower and dispositive.” “Narrower” is arguable; “dispositive” means “we’ve thought of another way to reach a suitable result.”

That way is to use a provision of Rule 7 that allows the trial court to “make any further order, other than or in addition to the bond, appropriate to preserve the status quo or the effectiveness of the judgment.” The court looks to decisions from other jurisdictions and concludes that the provision applies when a party would otherwise be “effectively and practically [deprived] . . . of the benefits it received by virtue of the judgment in its favor” and would “thereby suffer real, not hypothetical or speculative, harm.” In this case the effect of the stay was to allow Hoag to deplete the trusts that the judgment allowed the bank to go after.

The court remands and directs the trial court to “consider” whether some arrangement – the bank had suggested that the trust payments be held in escrow – would be appropriate.

The problem is of course that evading the issue as raised by the bank suggests that the trial court was right. It really would be better to clarify the statute than to promote an ancillary provision to the position of governing law on supersedeas in equitable actions.

(link to opinion)

The court holds that a forum-selection clause can be waived. There is nothing particularly new here unless it be the application of established law to this particular type of clause.

The plaintiff contracted with the defendants to have a condo built in Rocky Point. When it wasn’t done on time he demanded rescission and the return of his deposit; the defendants refused. The contract had a forum-selection clause requiring that litigation be in Mexico but the plaintiff filed suit in Arizona. The defendants appeared in the case and eventually moved, unsuccessfully, for summary judgment on various grounds not including jurisdiction. Then, over two years after litigation had begun, they responded to an amended Complaint by moving to dismiss it on forum-selection grounds. The trial court granted that motion.

The Court of Appeals reverses, holding that the defendants’ conduct waived the clause. “A litigant asserting waiver by conduct must establish acts by the opposing party that are clearly inconsistent with an intention to assert the right in question.” Waiver will be found when the defendant “has taken substantial action to litigate the merits of the claim that would not have been necessary had the entity promptly raised the defense.” The appellate court therefore finds waiver as a fact because, quoting in part from another case, “we have no difficulty concluding here that ‘wavier by conduct is apparent from the extensive litigation record below.’”

(link to opinion)