Starr Pass Resort v. Harrington (CA2 10/10/18)

This problem with supersedeas bond law has been fixed but the fix isn’t effective until January 1, 2019. So the court accepted this special action to address the issue.

Defendant lost below (we simplify a bit; there were many parties to this lengthy and complex case). They sought to file a property bond (i.e., a supersedeas bond secured by property rather than a cash bond). Salt River (App. 2009) concluded that this was permissible under prior ARCAP 7, which allowed the court to alter the amount and conditions of the security. But then, in 2011, the legislature passed 12-2108 specifying the amount of supersedeas bonds and in response Rule 7 was amended effective 2012, leaving out the language that Salt River relied on. So Plaintiff argued that the trial court could not allow a property bond. The trial court agreed. Defendant filed special action.

The Court of Appeals accepts it and grants relief. The present rule permits the trial court to “enter any further order, in lieu of or in addition to the bond, which may be appropriate to preserve the status quo . . .” (The court for some reason also cites similar language from the 2012 version of the rule, which was replaced almost three years ago. In fact, it cites the old language first and seems to treat the new as more important that the old.)

The court also concludes that Rule 7 is consistent with the statute. The statute “provides the method necessary for calculating the amount of the bond” but does not require that it be in cash. And the statute was arguably intended to make supersedeas bonds easier, not harder. (The rule may actually go beyond the statute a bit but its effect is to add some old-fashioned flexibility around the edges, for cases that the statute’s Procrustean formula doesn’t quite handle.)

Effective next year the rule will expressly permit “other types of security.”

(Opinion: Starr Pass Resort Developments, L.L.C. v. Harrington)

 

 

Pinal County v. Fuller (CA2 8/28/18)

Yet another notice-of-claim case. Its unfortunate that these still happen.

Plaintiff’s notice of claim against Pinal County was signed by Plaintiff’s lawyer. The county denied it; Plaintiff filed suit. The county moved to dismiss because the statute requires that the notice be “executed by the person [bringing the claim] under penalties of perjury.” The trial court denied the motion but ordered Plaintiff to comply with the statute, which it then did. The county filed a special action anyway.

The Court of Appeals accepts it and grants relief. A mere signature, even by an attorney, is not execution under penalty of perjury. It does not constitute “substantial compliance”; those cases involved notice — the government had actual notice even though the notice was addressed to the wrong bureaucrat, for example — and, anyway, the idea of substantial compliance has “effectively been superseded by more recent decisions requiring strict compliance.”

What if the lawyer signs under penalty of perjury? The court raises the issue even though the parties didn’t — and for that reason declines to answer it. One assumes that there was a point to the footnote other than allowing the court to pretend to superior intellect; it would be interesting to know what the court imagines that was.

Plaintiff also argued that the county was estopped because its denial of the claim didn’t specifically mention the signature issue. “We assume, without deciding, that it is possible for a county to waive noncompliance . . . based on its prelitigation conduct” but “courts are not inclined to find estoppel based on government conduct.” Finding estoppel would shift the burden of compliance from the claimant to the government, which is — citing a passage we cited from Yahweh — “not duty-bound to assist claimants with statutory compliance.”

“[W]ith so many notice-of-claim cases on the books now, if you have to argue waiver then you made a mistake. Trying to cut corners on this statute is the sort of thing you could end up telling your carrier about some day.” That’s not the court — that’s us, four years ago.

(Opinion: Pinal County v. Fuller)

 

 

Chula Vista HOA v. Irwin (CA2 7/27/18)

The question presented is whether a supersedeas bond should include the amount of a fee award. City Center (2015) settled that; this case follows it, adding a bit of additional discussion of exceptions that don’t apply here.

Plaintiffs sued their homeowners association. They won, receiving some declaratory relief, $5000 damages, costs, and $35,000 attorney’s fees on a contract claim. The HOA file a notice of appeal. It argued that the amount of its supersedeas bond should not include the fee award; the trial court ruled that it should. So the HOA filed this special action.

The Court of Appeals accepts review and grants relief. The part of Rule 7 at issue here bases the bond on the “total amount of damages.” It is hornbook law that attorney’s fees are not “damages.”

But there are exceptions. The trial court apparently followed Desert Mountain (2010): “when one party’s breach of contract places the other in a situation that ‘makes it necessary to incur expense to protect his interest, such costs and expenses, including attorneys’ fees, should be treated as the legal consequences of the original wrongful act and may be recovered as damages.'” But Desert Mountain was a claim against an insurer to recover amounts — including fees — paid by an insured for claims the insurer refused to cover. The holding was that in that context the fees fell under the policy language of things the insured was “legally obligated to pay as damages.” The fees in this case didn’t arise from litigation with a third party. (It might be worth noting, though the court does not utilize the distinction, that Desert Mountain also did not use the standard legal definition of “damages”; instead it used the “plain and ordinary meaning” standard applied to insurance policies.)

Some provisional remedies are also exceptions, so Plaintiffs argued that their slander-of-title claim was “akin” to a provisional remedy. The court points out that the claim is statutory and that the statute (33-420), although allowing fees, does not define them as part of the “damages.”

(Opinion: Chula Vista Homeowners v. Irwin)