THIS OPINION HAS BEEN VACATED

This holds that a wrongful-death award of zero can be proper.

Mr. Walsh died in defendant’s care. His wife and adult children sued. The jury awarded the wife one million dollars and, for no apparent reason, the children zero. After the jury was discharged they moved for new trial. The trial court ruled that they had waived the issue since you must move to correct a defective verdict when the jury is still seated. (Though zeros happen not infrequently too many lawyers have no clue; ask the judge to remind the jury of the instructions or instruct it appropriately and have it deliberate some more – the idea is that you have to give that judge and jury a chance to fix it.)

The Court of Appeals says that the waiver issue is “moot” because it decides that a wrongful-death zero isn’t defective. That puts the cart before the horse. The court reaches the zero issue because it wants to.

At common law damages are an element of the cause of action — if you have none then there is no liability, thus a plaintiff’s verdict for zero dollars is contradictory. But a wrongful-death action is statutory. (The court says that the result is the same even if wrongful-death has some common-law tie, in deference to a strange case suggesting that called Summerfield.) Wrongful-death damages are not the result of a negligent act; they are the result of the result of a negligent act. The statute lets the jury award what is  “fair and just”; it doesn’t’ say that “fair and just” can’t be zero. The jury was free to decide that the children weren’t really damaged despite their protestations to the contrary.

Two cases from Division Two hold that a wrongful-death zero is defective. There were dissents in both cases, with which this court agrees.

The court declines the children’s request to make this holding prospective only. That can be done where an opinion overrules “clear and reliable precedent.” The court tells us that  the Division Two precedent wasn’t because those cases had “strong dissents”  Well, there are other reasons to deny this sort of request and maybe they were valid here. But to say that two clear cases weren’t “clear” because these judges agree with their dissents – which thereby become “strong dissents,” as opposed to a dissent they didn’t agree with, which would presumably become a “weak” dissent – is little more than an insult. If there had been a dissent in this case, how would the majority have characterized it? The same, presumably, as the majority in the two other cases would have characterized theirs. Maybe there’s something after all to the idea that Division One looks down on Division Two.

Given the dissent between the divisions, of course, this one could go further.

(What, you ask, about a zero in a contract action? Maybe defective and maybe not; the safe course is to assume so.)

(link to opinion)

It has been over two years since we complained about memorandum decisions; things haven’t changed (yeah, we’re shocked, too), so time to do it again.

This is an order dismissing an appeal for lack of jurisdiction. The details of the case – a mess involving foreclosure – aren’t important. Appellant’s brief argued only about a non-appealable order (contrary to what her docketing statement said, to which the court apparently looked when denying an earlier motion to dismiss, though there’s no indication that anybody’s going to be sanctioned). It takes the court about a page to deal with that.

So why is the decision eleven pages long?

Because of eight pages of “Facts and Procedural History.” And even that mere heading has its own footnote (this is Division One, remember): it tells us that the facts are undisputed.

So who in the world is the court talking to? Does it really think that anybody needs to read that? Nobody will, nobody benefits, and nobody cares. The parties know the facts and procedural history. There isn’t any remand to worry about. The Supreme Court won’t touch this with a ten-foot pole but even if it did a Petition can easily enough handle undisputed facts. 

A few of them help explain why the court had denied the motion; it’s courteous of the court to do that but one sentence could have done it nicely. Eight pages of undisputed facts in a memorandum order that has very little to do with any of them?  In a reported decision this would be bad enough – and often is. Here it’s beyond ridiculous.

This zoning opinion discusses the relationship between the statute of limitations and a declaratory judgment action.

Flagstaff told CDR that it would deny CDR’s plan to develop property in the City. It never formally did so, however; instead, CDR, though it filed a Notice of Claim in 2004, continued to work with the City to come up with an acceptable plan. It failed and, in 2008, filed suit for declaratory relief and §1983. The City moved to dismiss, asserting, among other things, the one-year statute on actions against a public entity; it argued that the cause of action accrued in 2004 when CDR knew it had been damaged. The trial court granted the motion (which the Court of Appeals treats as summary judgment because documents outside the pleadings were presented).

As to the declaratory judgment the Court of Appeals reverses, holding that the statue on a DJ doesn’t begin to run until “the related damage claims accrue.” Filing a Notice of Claim didn’t cause that; even filing suit for DJ doesn’t necessarily cause that. A justiciable controversy can exist before a party has caused breach or damage that triggers the statute of limitations. The City never did actually reject the plan (the planners had just said that they would), CDR therefore hadn’t exhausted its administrative remedies, so the statute hadn’t even begun to run.

Similarly, the §1983 claim hadn’t accrued.

CDR’s lawsuit also pled misrepresentation: the City staff allegedly hadn’t told it the truth about what certain zoning regulations required. (It is apparently not uncommon in these matters that people actually rely on the legal representations of the same bureaucrats they’re fighting.) But the Notice of Claim hadn’t mention that, so the misrepresentation claim was barred.

(link to opinion)