Courts do odd things.

This is an amended opinion; we blogged the original last month. As is its practice, the court instantly removed that opinion from its web site; the internet never forgets, though, so we can compare the two.

As near as we can tell, the amendment does two things. It changes a minor factual point. And it adds a paragraph in which it briefly disposes of an argument the first opinion didn’t substantively address.

The District had presented no authority to support that argument, so the first opinion had considered it waived. The District’s Motion for Rehearing did offer some authority. The court amended the opinion to include it, explaining very briefly why it was wrong and did not change the result.

Apparently, then, you can un-waive a waived argument. This may come in handy when next you’re short of time to finish your brief. Just make that last argument or two and don’t bother to look up the cases. The court will call it a waiver but if you lose you’ll have time to get some cases and, with them, another bite of the apple.

Sarcasm aside, why did the court bother? If the District waived it, it waived it; if not, the court shouldn’t have said so in the first place. Have the courage of your convictions. Considering on rehearing a waived, minor (in the court’s eyes) argument that doesn’t change the outcome makes no legal sense, encourages bad briefs and motions for rehearing, does the court no good, and does these parties no good.

The question here is whether Chandler or the State has to pay to relocate utility lines for a new Loop 202 interchange. Municipal and utilities lawyers might find it substantively interesting. They might also know why it was brought; the court, at least, clearly thinks the City’s arguments inconsequential.

Our concerns are stylistic. Though neither is well-written, since we just finished praising Young v. Beck for having a good front end its hard not to notice that this one doesn’t.

Both parties filed cross-motions for summary judgment. The ADOT won. Chandler appealed. What did it argue? “The City argues that the trial court erred because it, not ADOT, was entitled to summary judgment.” Well, yes. That’s true. Can’t deny it. Thanks for telling us.

Why does that silly sentence even exist? As an introduction to the boilerplate standard-of-review paragraph. As if they weren’t bad enough to begin with, now those pointless paragraphs get their own lead-ins.

So what did the City really argue? To find that you read. And read. And read. And finally, on page 11 (of 19), the court tells you. The arguments wouldn’t make sense without the context of the court’s prior discussion, you say? On the contrary, its their connection with that discussion that isn’t entirely clear.

What have you been reading up to that point? Page after page of facts, for one thing. The size of the water line installed in 1975 and of the sewer line installed in 1992, the story of the Chandler Improvement Company (1904-1913) – if you want a history of the intersection of Willis and McQueen in Chandler, this is the place. Of course, 90% of this is irrelevant to the holding and none of it is contested. And then there’s the law, mostly a several-page mini-treatise on the law of dedication – law not at issue, since the parties agreed that the roadway was dedicated.

So what’s the holding? That when government reasonably decides to re-do a road, the owner of the utilities has to pay to relocate them. The opinion makes it sound as if this is what the law always was. Maybe so. Turns out, though, when you get to page 17 and look at the footnote, that the City had a case – but it was a California case, of which this court’s analysis is “we think it proper . . .  to follow existing Arizona law.”

Unless there’s more to this than the court lets meet the eye, it could have done that in a two-page memo.

(THE SUPREME COURT ACCEPTED REVIEW OF THIS CASE AND AFFIRMED)

The question here is whether the family purpose doctrine applies when the use of the family car is contrary to restrictions placed on the driver.

Jason Beck wasn’t allowed to carry passengers, a restriction his parents had instituted after he was in an accident. But that’s what he was doing – having told his mother that he would just drive over to a friend’s house to spend the night – when he caused another accident. Plaintiff made a family-purpose claim against the parents. They argued that since the doctrine applies only if the car was used with their express or implied consent, and since they didn’t consent to what Jason was doing at the time of the accident, they can’t be liable. On cross-motions for summary judgment the trial court ruled for Plaintiff. The parties made a deal on damages in order to appeal liability. This opinion affirms.

It starts off well. The first paragraph does what every opinion should: it tells you immediately what kind of case it is, what the issues are, and what the holding is. But then things go downhill. A boilerplate standard-of-review paragraph signals that the court is reverting to business as usual. Next, it decides to treat family purpose as a strange and unusual legal beast requiring careful and minute inspection. And so we get, completely uselessly, an extended quotation of the trial court’s minute entry and the detailed facts of the 1919 case in which our Supreme Court adopted the doctrine.

After meandering awhile longer through the history and purpose of the doctrine, and cycling back through the facts and arguments once or twice, the court announces that “to ascertain whether the Becks gave implied consent, we must determine if Jason drove the car for a family purpose.” That should cause your logic bone to twinge a bit but the court is apparently reacting to a Beck argument that the family purpose doctrine is based on agency. A quick look at the books will tell you, if you didn’t know already, that that is wrong, which the court takes a couple of long paragraphs to sort of say. Jason used the family car for the convenience of the family. That’s a family purpose. He had permission to do so. His parents are therefore liable.

Having reached this conclusion, the opinion won’t stop, rambling on about how it must be right because other jurisdictions think so, too.

Some opinions seem like a schoolteacher pretending familiarity with the subject when in fact she just read the chapter the night before to keep ahead of the class. You get that impression here even before the court gets mixed up. It justifies the Becks’ liability by pointing out that “both parents were fully aware that Jason previously disregarded driving restrictions they had imposed on him.” But that’s a negligent-entrustment fact, not family purpose. Next, having already specifically said that family purpose doesn’t depend on course-and-scope agency stuff, the court says “we find it unnecessary in this case to attempt to draw any specific boundaries as to when violation of a driving restriction may constitute such a gross deviation by the child as to preclude parental liability under the family purpose doctrine.” This in connection with a case in which the son stole the car from the garage. But “gross deviation” is an agency notion. The point of this opinion is that if there is family-purpose permission, deviation is not an issue.

The Becks also questioned whether family purpose is needed now that its not 1919 anymore.  This was their only good argument. Is that why the court shoves it to a few pages at the end of an 18-page opinion, preferring to write a treatise on a slam-dunk issue of plain-vanilla tort law?  Perhaps not, since its not clear that the court understands the analysis. Having announced that family purpose is a matter of policy, it now treats it like a statute, cites in support of it statutes that actually weaken it, and mentions at least one principle of statutory construction that has absolutely no application here. Reading between the lines, its possible to conclude that the Becks argued the issue a little bass-ackwardly, though we hate to keep making that excuse for courts at the risk of abusing fine attorneys. In any event, the court ends up saying the only thing it should have said, which is that this is an issue for the Supreme Court.