A cautionary tale on working with government, though this one may actually allow an estoppel.

Gorman wanted Pima County to build a park for bicyclists. The County was receptive; over a few years there was a lot of communication back and forth and the County did some studies, issued a building permit, and amended an intergovernmental agreement to allow the park. Gorman, at the County’s request, spent money it aid of some of that. Then the neighbor’s complained and the County shut down the project. Gorman sued for damages – apparently her out-of-pocket, time spent on the project, etc. She sued for breach of contract and estoppel. The trial court dismissed her Complaint; she appealed.

On the breach of contract allegation, the Court of Appeals affirms. The problem is that there never was a written contract. Gorman relied principally on a letter signed by the County Administrator. Pima County argued that he had no authority to enter into such a contract. Gorman argued that the Pima County Code have him authority to sign grant applications and that her spending money out of her own pocket was a grant. But the Pima County Board of Supervisors had adopted a policy saying that it had to approve all grants. The court holds that this policy is consistent with the Code and is entitled to the force of law.

Gorman also claimed equitable estoppel. The court points out that she should have claimed promissory estoppel (i.e., a promise to do something in the future), that equitable estoppel (misrepresentation of present or past facts) is a defense, but says in a footnote that it doesn’t’ matter since she had alleged the necessary elements – though they’re the same, only the facts differ.

Its hard to establish an estoppel against government. You need not only a writing but, the court tells us, a “degree of formality.” It decides that whether that existed here – what with all the formal-looking things the County did (building permit, amendment to agreement) – is a question of fact, so the court reverses on the estoppel issue.

The County points out that this could lead to a lot of other estoppels. For governments this is a bad thing, since they are accustomed to being able to change their minds at a whim. On the other hand, the court tells us that “we have carefully considered the potential impact” of this decision – but it doesn’t otherwise discuss the matter. “The circumstances here are unlikely to recur,” it says, for reasons it doesn’t explain. And, anyway, “equity favors our resolution.” Pedants could argue that that doesn’t actually, really, technically, necessarily mean that Gorman should win her case – but what is the trial judge going to make of it? Talk about putting your thumb on the scale.

(link to opinion)

Another who-can-be-an-expert-in-a-med-mal-case case.

Lo is an ophthalmologist who performed “laser facial skin treatment.” Sued for malpractice, he moved to disqualify Plaintiff’s standard-of-care expert, a plastic surgeon. The trial court denied the motion, reasoning that laser skin treatment is plastic surgery, not ophthalmology. Lo took this special action.

The Court of Appeals takes jurisdiction but affirms.

The statute (12-2604) requires an expert on the “appropriate standard of care” for a defendant’s “specialty or claimed specialty.” Lo admitted that plastic surgeons do the same procedure but wanted to debate alleged distinctions among “plastic surgery,” “cosmetic surgery,” and “oculoplastic surgery.” The court rejected that by relying on the boards’ official descriptions of the specialties but also, and mostly, on Lo’s web site, which holds him out as being a specialist in “cosmetic” and “plastic” surgery.

The court says the statute does not “require that a testifying expert match each specialty of a party with multiple specialties.” That is a bit extraneous to the holding (which doesn’t stop the court from then going on about it at length), and whether its true should depend on the facts of the case, but it figures to be the most-quoted sentence from this opinion.

Though we see this sort of argument all the time nowadays, this particular one does seem hyper-technical. The statute was intended to stop general practitioners from talking about surgery, chiropractors from talking about M.D.s, and similar practices from what are quickly becoming the old days. The statute wouldn’t have been necessary had our courts been more reasonable and prudent about enforcing common-law rules; nevertheless, applying it too strictly misses the point.

(link to opinion)

This case underscores the importance for both sides of moving quickly on the issue of venue.

Sierra Tucson was sued after a patient disappeared from its psychiatric hospital and was later found dead. Plaintiff filed in Pima County. Sierra Tucson moved for change of venue – under the 12-404 procedure, filing an affidavit before the time for an Answer – since its a foreign corporation and its hospital is in Pinal County. Plaintiff first said she had no objection but then changed her mind and moved to amend the Complaint to add as a defendant a Sierra Tucson employee who lives in Pima County. The trial court granted that, denying the motion for change of venue. Sierra Tucson took this special action; the Court of Appeals accepted it and grants relief.

Change of venue is mandatory unless a party disputes the movant’s affidavit with one of its own within five days. Because the plaintiff did not, the Court of Appeals holds that the trial court had no authority to consider the Motion to Amend or to do anything other than order the transfer.

Plaintiff argued that because no responsive pleading had been filed she had the right under Rule 15 to amend “once as a matter of course.” The court agrees that a motion for change of venue is not a responsive pleading. But it holds that the right to amend did not survive the five-day deadline; she needed to move to amend before that. The court raises but declines to answer the question of whether she also had to file a controverting affidavit.

Plaintiff argued that if she lost she would simply dismiss the case in Pinal and re-file it, including the new defendant, in Pima. The court points out that that doesn’t make the trial judge’s ruling correct.

(link to opinion)