We don’t know where to begin. Well, first, let’s just tell you what happened:

Santee sued Mesa for damaging his personal property. Mesa moved to dismiss (“after several years of pretrial litigation,” the court tells us) and won; the court filed a signed minute entry. Mesa, which had made an offer of judgment, then moved for expert fees and costs under Rule 68(g). Santee filed his notice of appeal within thirty days of the dismissal but before this  motion had been ruled on. The trial court then granted that motion and “entered a final judgment dismissing the claims.”

The Court of Appeals decides, sua sponte, that it has no jurisdiction because the notice of appeal was premature (filed before the judgment entered after the Rule 68 motion). A premature notice works only if the entry of judgment is merely ministerial, i.e. if nothing could change between the notice and the actual entry of judgment (Barassi 1981). This is to prevent disruption of the trial process and avoid piecemeal litigation.

To its credit, the court had ordered supplemental briefs. Santee argued that a signed minute entry is appealable and a subsequent motion shouldn’t make it not so. The court says the argument is “unsupported by any authority,” ignores the trial-disruption issue, and, anyway, is just what time-extending motions do.

So Santee pointed out that a Rule 68 motion is not time-extending (ARCAP 9). The court agrees but says that there was no final judgment. Why not? Apparently because “the filing of the Rule 68(g) motion created an issue that demanded resolution by the trial court.”

We try to keep these things reasonably short, so we’re not going to try to untangle the court’s “reasoning” in those last two paragraphs.

Santee also contended that the taxing of costs was ministerial. The court disagreed, with perhaps a bit more justification, though Santee had an argument.

Okay, that’s what happened. Now, so that you don’t go away confused, be sure not to learn anything from this case. Here’s the law:

A signed minute entry is appealable. Why? Because its a judgment under Rule 58; the Focal Point case told us that a long time ago. Taxing fees and costs is not a separate issue that prevents entry of an appealable judgment; there are cases on that, too.

Once judgment is entered the trial court has no jurisdiction except over time-extending motions and those in furtherance of the appeal. If you forget to have the court award fees and costs before judgment, you need to move for new trial or to amend. Again, the cases are out there.

Therefore, the appeal time began to run with the signed minute entry. The trial court had no jurisdiction to entertain the Rule 68 motion or to amend (there having been no such motion) its earlier judgment. The second judgment was a nullity; Santee’s notice of appeal was timely, not premature.

Yes, Santee could have objected to the Rule 68 motion on jurisdictional grounds and filed another notice of appeal after the second judgment. That would have been the safest course, especially in these days when courts bend over backward to coddle people who don’t know the law.

On the subject of disrupting the process, can you imagine what would happen if this case were the law? The motions you could file to disrupt and delay your opponent’s appeal would be limited only by your imagination.

One last confusion: This slip opinion has the red Do-Not-Cite stamp the court uses for memorandum decisions. But it says “OPINION,” not “MEMORANDUM DECISION,” and the court has released it through the published-opinion channel. So is it an opinion, or a memo, or does the court think is has invented the non-citable opinion?

We would normally delay blogging one like this, per our FAQ, but presumably this isn’t going anywhere except back to Superior Court for the entry of a new notice of appeal.

(link to opinion)

THIS OPINION HAS BEEN VACATED

Even we have sympathy for trial judges once in a while. This opinion decides that he made the right decision, then reverses him.

Baker’s daughter died in defendants’ care; he sued for malpractice. But his expert was a hematologist/oncologist and the defendant doctor was a pediatrician, sub-specializing in pediatric hematology/oncology. The trial court ruled that the expert did not qualify under 12-12604 and therefore granted summary judgment for defendants.

The statute requires that the expert “be a specialist who is board certified in [the defendant’s] specialty . . .” The Court of Appeals says that “specialty” is ambiguous and decides that it means a member of a specialty board. It then reads from the web sites of a couple of specialty boards to help decide the case.

To its credit, the court is apparently at least a bit uneasy about this and so throws in a footnote to the web site stuff saying that it can take judicial notice of facts not subject to reasonable dispute even if the trial court didn’t. So, it’s now official: the court can read a web site and decide the case based on that rather than the record or the briefs. And how does it know that what’s there is not subject to reasonable dispute or that it hasn’t missed some site or page with contradictory or qualifying information, especially when the court is doing it’s own factual research not checked by the adversarial, discovery/disclosure process that we used to be told was the cornerstone of our legal system? Just trust the courts, folks; after all, if they weren’t infallible then some joker might have started his own web page pointing out their mistakes.

The court notes that Awsienko used a dictionary rather than medical board web sites to define “specialist.” But that was dictum and, anyway, CA1 tells us that its definition is more refined than Awsienko’s. Web sites are apparently more reliable than dictionaries.

The parties argued that an expert has to be in the same subspecialty as the defendant. The court says that since the statute says “specialty,” that’s what it means, not subspecialty.’ (This means that Baker actually wins this round; see below.)

Baker made the usual sorts of arguments – there was some overlap between the physicians’ training, the expert had studied some pediatrics and would be willing to see pediatric patients, the 17-year-old patient wasn’t really pediatric, etc. But that’s not enough since the statute requires the same specialty.

Baker also argued that the statute abrogates the right to recover damages. We thought we’d been through that one before and it turns out we were right: Governale (2011). Baker’s new argument was that the statute prohibited him from bringing an action because there are only 1800 pediatric hematologists and none of the twenty he contacted would help him. This doesn’t fly because under the court’s analysis he doesn’t need a pediatric hematologist, just a pediatrician. Baker unsuccessfully also tried to make the old, Governale arguments.

Having concluded that the trial court’s grant of summary judgment was correct the court affirms it, right? Wrong; it vacates and “remands for further proceedings consistent with this opinion.”  The opinion does not claim to have changed the law; on the contrary, it insists that it just reads the words the Legislature has used. But because the statute, in the court’s view, allows the use of any pediatrician and Baker didn’t try that, he gets to try again.

Give Baker’s lawyer credit: it apparently didn’t occur to her that the actions of a pediatric hematologist/oncologist could be judged by a pediatrician whose career has been spent treating earaches and giving inoculations. Maybe that’s why the court cuts Baker a break not warranted by any principle of procedure – though she was wrong on the law and wrong on the facts, she tried to be truer to the statute than the court thinks she had to be. Her reward is to have the best of both worlds; she can use any pediatrician on standard of care and will call her hematologist to make up for the pediatrician’s ignorance.

Judge Eckerstrom concurs but adds that he would have the trial judge decide “whether defendant’s specialization in pediatrics was pertinent to the standard of care or practice in treating the patient‟s blood condition.” It would, you see, be “absurd” (a word he uses three times) to judge a pediatrician by the standards of a pediatrician if the patient didn’t really need a pediatrician. The trial court should, it appears, determine (as a matter of fact? as a matter of law? as a matter of judicial notice? maybe he can just read some web sites) what specialty was really the most appropriate (here, a pediatrician or hematologist) and require an expert from it. The majority refers to this “test” as “logical and attractive” even though it rejects (as noted above) the same factual argument because the statute says “same specialty,” quotes legislative history to the effect that the defendant and expert must have the same training, and notes evidence that hematologists and pediatricians have different training and approaches.

(link to opinion)

This opinion about a homeowners’-fee dispute throws a mountain of law at what is apparently a molehill of a case.

The deeds on Plaintiffs’ homes are subject to restrictions requiring them to be members of GVR. When GVR imposed a fee on new purchasers many homeowners sued, arguing that the restrictions were invalid. The trial court denied their request for preliminary injunction; then, saying that its conclusions at the injunction hearing were the law of the case, granted GVR summary judgment.

Plaintiffs pointed out that injunction conclusions are not the law of the case. But they didn’t do so until the Motion for New Trial; their opposition to summary judgment hadn’t mentioned it. So the Court of Appeals says that they waived the issue and, anyway, the trial court was right.

Plaintiffs’ main argument was  that the restrictions didn’t “touch and concern” the land. That’s a traditional requirement for such a covenant but GVR argued, inter alia, that it no longer applies. The Restatement no longer includes it and and some recent statutes haven’t. The opinion announces that it will discuss that issue first, does so for awhile, then says that it won’t decide it because the statutes came after the deed restrictions and were not retroactive. “Nor do we look to the Restatement for guidance because . . . the . . . covenants do touch and concern the land” (based on the facts and cases from other jurisdictions). In other words, after going out of its way to feature the issue the court evades it rather than address it, which is the only thing it could do anyway since – as the opinion notes but doesn’t mention the significance of — the issue is one of Supreme Court precedent.

Plaintiffs also made arguments about unconscionable and illusory contracts. The opinion disposes of the latter in a paragraph but devotes about seven pages to the former, for reasons we don’t know. This makes it a useful source for cites on the issue – including a discussion of “procedural” versus “substantive” unconscionability – but there’s little real analysis here since the facts, at least as reported in this opinion, didn’t come very close to supporting the argument.

GVR cross-appealed the trial court’s failure to award it attorney fees. The court had done the usual thing: deny the claim but, as a sop, deny fees for reasons that don’t bear too much scrutiny – here, the supposed “novel” and “close” nature of the claim and the “chilling effect” on future litigation. The Court of Appeals affirms since the trial court “articulated a reasonable basis.” Which proves – and this is perhaps the important point of the case – that nonsensical does not necessarily equal unreasonable.

(link to opinion)