Another notice-of-claim case.

Plaintiffs sued the State because of a one-car accident, alleging a defect in the road. The State said they hadn’t filed a notice of claim; they said they had and produced a notice of service saying they’d sent it in. The trial court dismissed the case and CA1 upheld it, saying that mailing isn’t good enough; the Supreme Court reversed, over the lengthy dissent of Justices McGregor and Berch, holding that mailing is good enough and, using the delivery rule, that whether Plaintiffs had served a notice was a question of fact.

But in a footnote the court expressly refused to say whether the question should be decided by judge or jury because the parties hadn’t raised the issue below. Someone at the court apparently had, though, because the footnote went on to cite law that the trial judge can decide jurisdictional facts but that a notice of claim issue is not jurisdictional.

So the case went back to the trial court to decide that issue, the parties citing the cases cited by the footnote. The court decided that it could decide the facts and decided them in the State’s favor, dismissing again. Plaintiffs appealed again.

Division One held that the jury must decide the question. The notice-of-claim requirement is procedural, not jurisdictional. It is an affirmative defense, not a “preliminary question” under Rule 104. The opinion agrees that the issue should be decided quickly, though, and so should be the subject of a separate trial which will, after all, “likely be no more than a one or two day jury trial.”

Well, yes, but what planet does he live on? Has he forgotten how things work down here at ground level? Call the superior court and see how soon you can get that “no more than one or two day jury trial.” The practical effect will be to expedite trial on the notice-of-claim issue not at all and to delay trial on the merits by many extra months, which is just fine by the State.

(link to opinion)

This was originally a memorandum but the court then decided to publish it. It is publishable because it points out that even Arizona courts will sometimes enforce disclaimers in contracts. It also, in passing, contains a practice pointer about how not to write a Complaint.

Elm bought a house advertised as being 3792 square feet. It turned out to be 3605 square feet. The contract said “BUYER IS AWARE THAT ANY REFERENCE TO THE SQUARE FOOTAGE OF THE PREMISES, BOTH THE REAL PROPERTY (LAND) AND IMPROVEMENTS THEREON, IS APPROXIMATE. IF SQUARE FOOTAGE IS A MATERIAL MATTER TO THE BUYER, IT MUST BE VERIFIED DURING THE INSPECTION PERIOD.” Elm hadn’t bothered to check the square footage but sued anyway, alleging everything it could think of. The trial court dismissed the case; which this opinion affirms.

On appeal, Elm argued first that the court should have considered the motion to dismiss as a motion for summary judgment since the sales contract was attached to the motion – i.e., the court had to look outside the pleadings. But a document that is “central to the claim,” even if it isn’t actually attached to the Complaint, can be considered without converting dismissal into summary judgment (see Strategic Development, which the court cites for the proposition).

In addition to breach of contract Elm had alleged bad faith, fraud, and negligence. The trial court had dismissed the tort claims under the economic loss doctrine. The Court of Appeals affirms for a different reason – the statute of limitations. Elm argued the discovery rule. But “the rule does not permit a party to hide behind its ignorance when reasonable investigation would have alerted it to the claim.” Elm’s Complaint failed to allege facts showing that it used reasonable diligence to find the problem. It said instead that Elm discovered it “within the timeframe as set forth by applicable law” – in other words, it thought about the problem but did things the lazy way. This has always been but seems increasingly to be a problem with Complaints: people forget, or never knew, that they must allege facts and that conclusions of law are surplusage and do not, technically, even require an answer.

On the contract claim Elm argued that the 3792 sf. advertisement was a warranty. The court held that the language quoted above was a disclaimer of any such warranty, that disclaimers are valid, and that a court is required to give effect to all the terms of the contract. Elm wanted to present evidence that it thought it could “verify” the square footage just by asking the seller about it. The court held that the contract was not reasonably susceptible to that interpretation since the verification language appeared in a paragraph listing the type of technical inspections that the prospective buyer could have performed on the house.

The opinion also affirms the refusal to allow Elm to amend its Complaint since that’s within the trial court’s broad discretion and since the proposed amendments would not have cured the defects.

By CA1 standards this is a nice opinion, only thirteen pages and three footnotes reasonably well-organized.

(link to opinion )

THIS CASE WAS AFFIRMED ON REVIEW

Domestic-relations opinions are rarely published but this one discusses a point of appellate jurisdiction. Mostly the dissent does.

Husband and Wife both filed notices of appeal while husband’s Motion for New Trial was still pending. Appeals filed after the motion has been ruled on are technically premature but the courts let them pass (Barassi). This case holds that the appellate court has no jurisdiction when the motion is still pending, following an Arizona Supreme Court case (Smith v. Arizona Citizens).

Wife argued that because she did not file the motion her appeal should be proper, citing a 2000 Division One opinion (Performance Funding) which made that distinction. But Smith cast doubt on that in 2006 (“appellate courts should dismiss a case for lack of jurisdiction while [a time-extending] motion was still pending”) and last year another Division One opinion (Engel) discussed exactly the same issue and decided that Smith controls.

The dissent argues that there is a “tension” between Smith and Performance Funding, which there is if you ignore Engel and in addition assume that Supreme Court opinions inconsistent with earlier Court of Appeals opinions create tension rather than law.

After eight pages of analysis that cannot be called sophisticated, the dissent announces “I dissent for two reasons.” First, it should not make a difference who filed the motion. That’s not a dissent to this case, though – that’s what this case holds. Second, Engel came after the Craigs filed their notices of appeal, at which time Performance Funding “had not been overruled, questioned, or vacated.”  Except, of course, by Smith, two years before. But the dissent says that that was dictum and so Wife should have been able to, well, ignore it. This must mean, though the dissent doesn’t say it this way (but comes startlingly close), that the Court of Appeals waived its lack of jurisdiction by not issuing Engel before Craig was filed and that there has to be a case that comes before since it’s just not fair if the law of a case affects the parties to it.

The dissent would allow Husband’s appeal, too, on the theory that he just filed it because she did, under ARCAP 9(a) (cross-appeal within twenty days of appeal), and that therefore his compliance with the rule “trumps the fact” of the court’s jurisdiction.

(Keep in mind that no case has ever said that filing a notice of appeal before the entry of judgment is the right thing to do and that if Husband thought he was being forced to file a premature notice then he should have filed another one after the entry of judgment and that Wife should have done so, too, and that reading a few cases to figure out what the law was would have told them this.)

Our job is to write about these things but the majority comments more appropriately on the dissent by failing to mention it.

It’s refreshing, though, to read a CA1 opinion that contains not a trace of the usual CA1 house style. The majority opinion is just two pages long. The much-longer dissent does sound at times like it was written by a clerk but we’re afraid it wasn’t.

(link to opinion)