This fees-and-costs opinion is a useful reminder of the Associated Indemnity case on fees and also says something worthwhile about costs.

The parties sued each other in contract. The jury awarded money both ways, though more to Motzer. The court denied fees to either but awarded Motzer some of her costs. Motzer appealed, wanting fees and all her costs.

“There is no presumption that a successful party should be awarded attorney fees under §12-341.01.” The trial court “has broad discretion” to analyze various factors. “Those factors apply in determining whether a court will exercise its discretion to grant a successful party attorney fees rather than in determining which party is successful.” Although the trial court found Motzer to be the successful party the record (the opinion, appropriately, does not go into much detail about it) supported its decision not to award fees.

(Motzer tried to base an argument on a memorandum decision; the opinion has to remind her that that can’t be done.)

Motzer wanted the cost of preparing jury notebooks, arguing that a court order required her to prepare them. But the order, while encouraging notebooks, required only that if used they had to meet certain standards. Had the court actually ordered them then they would have been taxable under 12-332(A)(6). “A bright-line rule that only costs ordered by the court are taxable allows trial courts to determine and counsel to be aware of what costs are recoverable.”

For some reason the trial court denied Motzer’s costs for buying copies of Escalante’s depositions of her and her expert, so the opinion has to reverse that; otherwise it affirms.

(link to opinion)

We try to keep things interesting but on the other hand we need to post something once in a while. We’re looking at three new opinions – a mechanic’s lien dispute, a claim by a guy who wants to control how much his aunt gets from her trust so that there’ll be more for him when she dies, and a case about an easement over a railway. The first has no interest, the second proves only that expectancies do bad things to the mind, and we’ve always kinda liked railroads.

Tumacacori claimed a prescriptive easement when the UP blocked a crossing Tumacacori had used for years. It had an Arizona Supreme Court case (Curtis 1932) that said you could do that but Curtis apparently didn’t notice that the Arizona Constitution says that “railways . . . are hereby declared public highways.” (Actually, we’d be willing to bet, if there were any way to prove it, that Alfred Lockwood knew that perfectly well. The career of his daughter the politician has blocked public memory of a man who probably forgot more law than she ever acquired.) You can’t get an easement over a public highway. So the Court of Appeals explains that Tumacacori can’t have the easement because the Constitution says what it says and means what it means.

Except when it doesn’t. Tumacacori apparently advanced several reasons why treating railroads legally as highways would lead to absurd results. The Court of Appeals doesn’t exactly tell us what those reasons were, preferring that we take it on faith that Tumacacori’s lawyers were being absurd to use the word “absurd.” But to cover itself the court then tells us that “the legal conclusion that railways are not subject to prescriptive easements does not necessarily mean they are highways under any and all conceivable scenarios.” What? Well, then, when are they not highways? Is that not what the Constitution means after all?

OF course, we see this all the time. Some seem to feel that they solve logical problems, rather than create them, by saying that X definitely means Y for today’s purposes though it might not for others down the line. If you’re going to do that then you have to be able, at the same time, to posit the circumstances by which today’s logic would cause X to mean other things. Otherwise you’re simply explaining that logic is not what you’re serving today and the bloggers can eat cake.

(link to opinion)

This appeal from a preliminary injunction is mostly uninteresting and fact-specific but does raise a couple of interesting points.

Rancho built a fence across what IB claimed as an easement. The trial court granted a preliminary injunction against the fence. Rancho unsuccessfully appealed.

It argued, first, that the trial court had used the wrong standard. The judge had followed Shoen (1990), which requires a “strong likelihood that [the party seeking the injunction] will succeed at trial on the merits.” Rancho argued that the standard had changed, citing the U.S. Supreme Court case of Winter (2008) which says “likely to succeed on the merits.” The Court of Appeals says that the Shoen language is still the law of Arizona. It does not attempt to say which rule is right. (Neither, for that matter, did Shoen or Winter, both of which focused on bitter factual disputes and simply quoted the injunction standard from other cases.)

Shoen also requires “the possibility of irreparable injury . . . not remediable by damages.” IB’s injury would be loss of income and loss of property value. Rancho cited cases for the proposition that injunction isn’t appropriate for purely economic loss; the court’s incisive analysis of them is to explain, in a footnote, that they aren’t binding because they’re out of state. 

But damages uncertain or difficult of calculation can support equitable relief, according to the Restatement. In response, Rancho pointed out that IB’s Complaint had pled for damages “in an amount to be proven at trial” without claiming that that would be difficult. Though it didn’t fly, and probably shouldn’t have (the court ends up deciding that the trial court’s finding of irreparable harm was sufficiently supported by the evidence), we think this an instructive argument. Have you ever thought about why your prayer says what it says? Most lawyers haven’t; to them the prayer for relief is just a form tacked on at the end, maybe by a paralegal or computer, using language somebody at some unknown time took from some other Complaint. There is old authority to the effect that the prayer isn’t technically part of the Complaint but that doesn’t mean that it isn’t important or doesn’t have consequences. But how many prayers like IB’s have you seen? Hundreds? Why do they want damages “in an amount to be proven at trial? The formulation has no legal meaning – unlike, for example, “just and reasonable damages,” though that isn’t necessary, either. “Just and reasonable damages in an amount to be proven at trial” is just an abomination. The truth is, this sort of language was used by lawyers accustomed to having to pray for a specific amount and uncomfortable with not doing so even long after that sort of requirement was, for almost all cases, dropped and/or prohibited. This is one of the things (like our favorite legal dinosaur, Rule 31) that stays in the law because too many people know too little about their profession to know why they have it.

The very least you can do would be to use proper modern English: “in an amount to be proved at trial.” Yes, we know lawyers like “proven,” mostly because it somehow sounds more impressive, and because they can point to the old Scottish verdict “Not Proven.” But “proven” is archaic at best. Leave it to its few remaining jobs, e.g., “proven commodity.”

And where else, by the way, do these people think the damages will be proved? If you said the injunction hearing under Rule 65 then we’ll give you half a point since that’s technically the trial. But how many people who use the language have that – or much of anything else– in mind?

(link to opinion)