THIS DECISION HAS BEEN VACATED

On appeal from arbitration you must file a list of “witnesses . . . intended to be used at trial” (Rule 77). What happens when you leave one out?

Cosper, defendant in a motor-vehicle case, lost at arbitration. On appeal she hired an expert, whom she named in a supplemental disclosure statement filed a couple of months later, which was a couple of months before trial. Plaintiffs moved to strike it; the trial court granted the motion, ruling that a witness could be added only for good cause.

Division One accepted special action on a “pure issue of law” to announce the following: “when a party makes seasonable, good faith disclosure of new evidence during the discovery period allowed by [Rule 77], preclusion is not warranted absent a showing of prejudice that cannot be cured by less drastic means.”

The court then spends eight pages of policy analysis (only a couple of cases are cited) justifying this. Basically, it says that the 80-day period allowed for discovery after appeal isn’t  for making the arbitration case ready to meet the Rules of Evidence; instead, it’s for whatever additional discovery you want. Otherwise, you see, the rules’ delicately-balanced mechanism of expeditious-justice-plus-right-to-trial would topple. So why does the witness-list rule exist? “Under this approach, litigants who ignore the need to prepare for arbitration may find themselves with insufficient time to prepare for trial.” (Yes, that’s what it says. Sometimes even we can’t explain ‘em, we just report ‘em.)

The court figures that Plaintiffs here had enough time (even though the trial court made no such finding), especially since the trial was scheduled as number two on the calendar, which means – well, it isn’t entirely clear what the court thinks that means. It suggests, but doesn’t exactly say, that that gives Plaintiff more time to get an expert of her own ready; the reason it doesn’t exactly say that, presumably, is that no one can know whether that’s true.

We would like to think that the court didn’t realize what was going on here. But a footnote reveals that it did. It knows perfectly well that some insurance companies defend arbitrations on the cheap, gamble on getting a good result anyway, appeal if they don’t get one, and only then get serious about the defense. The footnote approves of the practice: “For example, some expert witnesses may rightly be perceived as overkill at some arbitration hearings.” Read that as “any” expert and you have the script some companies follow (not all, by any means, but too many – and all are happy to go that route unless counsel talks them out of it). Apparently we’ve forgotten the days when defendants didn’t bother even to show up for arbitration and the rules had to be re-written. Now, showing up not to defend the case but just to do some discovery is good enough.

This was needless. The court mentions but puts no weight on the fact that these Plaintiffs have themselves to blame. In a joint pretrial memorandum filed after appeal the parties both proposed a long period of “expert discovery.” (Plaintiffs don’t seem to have gotten upset about that until the trial court wrong-footed them by giving them a trial date five months earlier than they wanted.) This was a waiver case: even assuming that Plaintiffs’ position is right, they waived it by agreeing to discovery beyond it. But the court doesn’t mention waiver even though an overlapping panel issued an opinion the same day (State v. Campos) talking at length about waiver in many situations and coming up with a very broad (and somewhat unsettling) rule – in essence, anybody (including the State) can waive anything. Instead, it goes out of its way to set precedent that, right or wrong, this was not the case for.

(link to opinion)

This is a notice-of-claim case in the context of a particular statute.

Turner claimed that a new Flagstaff ordinance reduced his property value. He sued under §12-1134, which allows compensation for that sort of thing. He had filed a notice of claim saying that he owned the property. Flagstaff moved to dismiss because the notice was wrong: the actual owner was Turner’s L.L.C, of which he is merely the President.  Turner asked to amend his notice but the court dismissed without expressly ruling on that.

The Court of Appeals agrees that the notice was bad.

Although 12-1134 has its own notice-of-claim requirement the court holds (explicitly – it says “We hold”) that both it and the general notice-of-claim statute (12-821.01) apply. The court does not explain why the Legislature intended in 1134 a 90-day notice requirement atop the otherwise-similar 180-day–after-accrual requirement of 821.01. “Turner does not dispute” this, the court says. One wonders why the court thought that an adequate substitute for statutory interpretation. Turner’s failure to argue it is a basis for decision in this case; to bind others to that failure by purporting to “hold” something without legal analysis is unfortunate. The holding might be right – one of the footnotes, written about another subject, hints at a possible argument – but law shouldn’t be made on rollovers.

The statutes require that the “owner” (1134)/ “persons who have [the] claims” (821.01) give the notice. Turner wasn’t the owner. Substantial compliance isn’t good enough. What about the cases saying that the purpose of the claims’ statutes is to give the government reasonable opportunity to investigate/settle/defend? They apply to grey areas – what facts should be in the notice, for example. Since “owner” means “owner,” the notice was defective.

The court remands, however, for determination of the amendment issue, which the trial court hadn’t ruled on. Amendment must come within the original 180-day limit, though, and this case is over three years old. So the court includes a footnote explaining why it bothers to remand: the savings statute might apply unless the limitations period has already run. But that explains how a late lawsuit might be filed, not how a late notice can be. And, in any event, it’s an argument for the next case, not this one; a trial court can’t decline to dismiss simply because a litigant might have the right to re-file.

(link to opinion)

“In this appeal we decide whether participants in a brawl can be held jointly liable under Arizona Revised Statutes (“A.R.S.”) section 12-2506(D)(1) (2003) for injuries inflicted on common foes.” The answer is “yes,” except when it’s “no.”

Plaintiffs and Defendants were in a bar fight. According to Plaintiffs (the trial court granted summary judgment for defendants, so the Court of Appeals views the facts favorablly to Plaintiffs), they were beaten up by a group of men including Defendants. They couldn’t identify which assailant did what, though, so they sued them jointly and severally, on the theory that Defendants were acting in concert (that’s 12-2506(D(1) – joint and several for acting in concert).

A.R.S. § 12-2506(F)(1) defines acting in concert: “entering into a conscious agreement to pursue a common plan or design to commit an intentional tort and actively taking part in that intentional tort.” The question here was whether the defendants did that. “[A] prima facie case . . .  requires evidence that the parties (a) knowingly agreed to commit an intentional tort that (b) they were certain or substantially certain would result in the consequences complained of, and (c) actively participated in commission of the tort,” Mein (2008). (This was a drag-race case; the race cases are traditionally a main source of acting-in-concert law.) In Mein injury wasn’t substantially certain but with punching and kicking people it is. Conscious agreement can be inferred from circumstances. The jury could have done so here.

The court reverses summary judgment for defendants and remands.

This is a commendably  brief and clearly-written opinion. The opening sentence (quoted above) is perhaps a bit overblown, as this is more a factual issue than a legal one, but the immediate announcement of the factual context, issue, and holding (in the court’s second sentence) is the right way to do things.

(link to opinion)