This opinion holds that those who share an easement share the obligation to maintain it.

Sorchych and the Freemans own adjoining properties. A single road, built when the properties were jointly owned, is the access to both. They have an easement for the road, granted to the earlier joint owner by the owner of the land over which it runs.  Various arguments about the road culminated in a bench trial on the Freemans’ claim against Sorchych for half the cost of maintaining it. Sorchych won, the court concluding that no precedent supported a contribution claim and that the Freemans’ claim of unjust enrichment failed because the maintenance was done for their benefit as well.

On appeal the Freemans’ claim becomes that Sorchych must pay for maintenance “in an amount proportionate to his use.” The court does not comment on this change of position.

On the issue of contribution the Court of Appeals reverses. It concludes that the Freemans have a claim for equitable contribution because that is what the Restatement says: “The holders of separate easements . . . who use the same improvements or portion of the servient estate . . . have a duty to each other to contribute to the reasonable costs of repair and maintenance . . .” (First, though, the opinion explains at length that as between the grantor and owner of the easement the maintenance duty is on the owner. If that was at issue in this case the opinion does not explain why.)

The court next tells us, citing and discussing a number of cases, that this conclusion is consistent with the common law of other states. There was a time when to say that and to cite the Restatement were considered essentially the same thing. That’s why we have a tradition of following the Restatement. It is either the triumph or tragedy of the ALI, depending on your point of view, that the Restatement is no longer seen as restating anything other than some law professors’ opinions.

But contribution is not 50/50. It “an equitable apportionment” depending on “various relevant factors” including but not limited to proportionate use, the reasonableness and adequacy of the maintenance performed, and whether each party received notice and an opportunity to participate in the maintenance decision. (The court’s earlier discussion had implied that notice and opportunity would be elements of the cause of action but it now specifically lists them as mere “factors.”)

On the issue of unjust enrichment the court upholds the trial result. Since the Freemans, by their own testimony, spent no more money any more often than they would have to maintain the easement for themselves, they could show no detriment.

There was also an attorney’s fee issue (Sorchych had been awarded some), which the court takes a page to explain before saying that it won’t address it, instead simply vacating the award.

The court awards the Freemans their costs on appeal, otherwise denies costs and fees to both parties, and remands. (Remand will apparently revolve largely around Sorchych’s claim that the Freeman’s didn’t simply maintain the road but greatly improved it for reasons of their own.)

Whoever wrote this will surely get the employee-of-the-month award. It is a prototypical example of the Division One style: far too long, chock-full of facts and procedural details that have nothing to do with the holding, with seventeen mostly-quite-long and mostly-quite-extraneous footnotes.

(link to opinion)

This opinion is published as a major statement on the standards for awarding attorneys fees in guardian/conservatorship cases.

Son, through counsel, petitioned to be appointed his rich father’s guardian and conservator and also trustee of Father’s living trust. The petition was granted. Son had conflicts with Father’s live-in girlfriend; she, joined by Father’s lawyer, eventually sought to remove Son as guardian/conservator/trustee. The trial court found that neither Son nor Girlfriend had acted entirely in Father’s best interests and replaced Son with a private fiduciary.

Son then moved for an award of costs and fees from the estate, despite having done things so badly that he got kicked off of it. Father’s lawyer also sought fees. As usual in theses cases the fee requests were astonishingly large, at top-dollar hourly rates. The court granted them in full. That of Father’s lawyer wasn’t opposed but Father and his new wife opposed Son’s, and appealed.

The Court of Appeals reversed, pointing out this:

“[T]ime expended should not be the exclusive criterion for determining fees . . . [and] should not warrant an award of fees in excess of the worth of the services performed.” “[T]he court must be guided by what is in the best interest of the ward.”  “Both counsel and the fiduciary have a duty to undertake a cost-benefit analysis at the outset and throughout their representation to ensure that they provide needed services that further the protected person’s best interests and do not waste funds or engage in excessive or unproductive activities.”

If this seems intuitive to you, keep in mind that if it were intuitive to the probate/conservatorship people then this opinion would probably not have been published. In that world, the cost-benefit analysis is a mythical beast. In fact, Son and his lawyer argued explicitly that “none of the statutes require that the protected person or his estate derive any benefit from the legal fees incurred.” This opinion is written to try to reverse that mindset. “[W]hether the services provided any benefit or attempted to advance the protected person’s best interests are important factors for the superior court to consider when evaluating a fee request.” The opinion goes so far as to suggest that “[i]f frequent ongoing scrutiny by the superior court appears necessary, the court should require frequent updates so it can monitor and restrain unwarranted charges.” “[B]etween Arizona Probate Rule 33 and the National Probate Standard, superior courts will find adequate support for close examination of fees and costs that ultimately may be borne by a protected person.”

The same is true for costs charged by trustees. The cottage industry of private fiduciaries should take note of this.

(Although that is the thrust of the case, the court also notes the nature of the lawyer’s bills. He billed only in increments of one-half and one hour. He also used “block-billing,” i.e., grouping tasks rather than report the time spent on each one. This area of the profession is apparently being brought up to modern times. The issue of arbitrary increments came up fifteen or more years ago; block-billing-phobia is more recent but hardly new. In this the courts adopt the practices of federal courts, which adopted the practices of major corporations and insurance companies, which took them from consultants of the sort who make a lot of money telling other people how to save money (yes, big corporations fall for them, too). Any biller worth his salt knows how to use flexible increments and detailed billing to make more money, not less. Eventually the courts will catch on to this but it may take another generation. Then they will adopt whatever the latest fad then is for solving the problems of hourly billing – which will never be solved since hourly billing is a cause of excessive fees, not a solution to them.)

These sagas rarely have a happy ending, by the way. On remand the trial court will award merely two or three times as much as anybody deserves rather than five or six. But the legal profession won’t cry long. After Son was no longer his guardian, Father moved back into his house and married Girlfriend. So, when the time comes, probate litigation will threaten what’s left of his estate and trust.

(link to opinion)

The issue here was whether a wrongful-death statutory beneficiary can collect UM benefits from a policy that covered the deceased but not the beneficiary. There is a statute on point; this opinion basically points out that it means what it says.

The plaintiff’s daughter was a passenger killed in a two-car accident. The other driver was uninsured. The daughter’s driver had insurance which, the parties agreed, covered daughter (as an occupant of the insured vehicle) but not mother.   Mother filed this declaratory judgment seeking UM benefits under her daughter’s driver’s policy. She moved for summary judgment; the trial court granted it. Country Mutual appealed. The Court of Appeals reversed and ordered the entry of judgment for Country Mutual.

A.R.S. § 20-259.03 says that a person who is a wrongful-death beneficiary and an insured under the policy can claim UM/UIM benefits. Mother was one but not the other, therefore she has no UM claim.

The opinion doesn’t make clear how she tried to argue around this. Arguments against the court’s decision appear obliquely, mostly in the footnotes. She seems to have cited an old case saying that the predecessor of the current statute should be construed liberally. And she argued that the statute was somehow against public policy. The Superior Court had concluded that mother was merely trying to collect damages that her daughter would have been entitled to. This is a wild misunderstanding of wrongful death and the opinion seems to suggest that mother herself didn’t try too hard to defend that position – but, again, it’s hard to tell.

The statute also says that if no beneficiary is an insured then the estate can make the UM/UIM claim. One wonders why mother fought this case rather than set up an estate; perhaps there were big claims against it.

(link to opinion)