The issue here is whether a driveway could be built over a drainage easement. This is pretty dry stuff but illustrates the value of a particular statute and the lack of value of a particular rule.

A subdivision plat showed several drainage easements. Beeseley, an adjoining landowner, bought property burdened by one of them, located between two of the subdivision’s lots, where a ravine drained water from his property into a creek. He built a culvert and driveway over this property. Smith, who owned the subdivision lot next to this, sued for trespass, nuisance, and unlawful alteration of a watercourse (48-3613), requesting an injunction that Beeseley remove these improvements. His principal argument was apparently that the easement was only for drainage and couldn’t be used also for a driveway.

For reasons not made clear (probably because the Court of Appeals doesn’t understand them, either), preliminary proceedings were lengthy and confused. There were motions for summary judgment and an evidentiary hearing on a preliminary injunction. After the injunction hearing the trial judge indicated that he would rule for Smith and asked for a form of order; Smith’s  response, a year later, was to file another motion for summary judgment that the court denied. Before trial Smith finally got around to requesting an order on the preliminary injunction, which the court entered, ordering Beeseley to remove the improvements because they would change the drainage in the event of a 100-year flood. Along with this the court issued a Rule 56d order specifying undisputed facts.

At trial Beeseley presented a new design for the improvements that he said wouldn’t interfere with the watercourse. The trail judge agreed, affirmed the order to remove the old improvements, and permitted construction of the new ones. It found – contrary to the 56d order – that the developer hadn’t intended Beeseleys’ easement to be solely a drainageway. And it concluded that the old improvements didn’t, after all, violate 48-3613, ruling the statute inapplicable because the local flood control district doesn’t regulate watercourses that small. The court awarded Smith nominal damages (we’re not told the amount) on the nuisance claim because some rocks had slid onto his property during construction of the improvements. (It ordered Beeseley to try not to do that while building the new ones.) It also awarded Beeseley $55,000 in attorney fees.

The bulk of the opinion discusses the contention that the easement was for drainage only. On this issue Smith loses. As the trial court had ruled,  the language of the easement permitted compatible uses and the driveway was compatible. That the plat did not show roadways where the easements were didn’t prevent people from putting driveways on them as long as the driveway didn’t interfere with the function of the drainageway.

Smith argued that the trial court couldn’t depart from the 56d  order. But such orders are interlocutory and subject to revision. If, for example, a fact thought to be “without substantial controversy” under 56d is later found to be controverted then the ruling can be changed. (Any wonder why nobody bothers with Rule 56d anymore?)

Smith also contended that “because drainage is a public use, the plat‘s dedication of land for this purpose combined with the sale of lots within the subdivision vested title to the subject property in Gila County,” and that therefore Beeseley didn’t even own it. This was based on an old case and two statues from the 1939 Code (in effect when the property was platted). This is one of those clever, midnight-oil arguments that rarely fly. Dedication is a matter of intent, not something that happens automatically, and the trial court had found that the original developer didn’t intend to give the land to the County.

But as to 48-3613 the court concludes that the trial court was right the first time: Beeseley violated it. The statute requires government approval of any alteration of the flow of water in a watercourse. There are exceptions but even under the exceptions plans must be filed, which Beeseley hadn’t done. Though the County may limit the scope of its regulation (in Gila County’s case to drainage areas of more that 160 acres), it cannot change the statute: those who alter a watercourse without following it are liable. (It looks like the Gila County regulations made it difficult, if not impossible,  to comply fully with the statute but the court cuts Beeseley no break for that except to suggest that the trial court can consider his predicament in deciding whether to award damages or fees.)

The statute requires that the watercourse be returned to its original state, so the court remands for the entry of an order to that effect and a ruling as to fees (the court vacates the award to Beeseley).

48-3613, by the way, is often the most powerful tool in this sort of case. “Watercourse” turns out to be a surprisingly broad term and actual damage is not required. The statute is strict, more so than the common law. In this case the easement owner considered the problem (Beeseley had contacted the flood-control people). Many owners don’t, though, especially in areas where people just think they’re dealing with a dirt road in barren desert where nobody has even seen a drop of water.

(link to opinion)

This opinion discusses alternative service.

Blair sued Burgener and his corporations for breach of contract. The process server made several trips to Burgener’s office and home to serve him (individually and as statutory agent for the corporations) but he wasn’t there. So Blair got the court to order that he could serve “any person in charge of” Burgener’s office and send copies to Burgener’s home. He served a woman at the front desk of Burgener’s office complex and sent the copies – to the business address, not the home address. Burgener didn’t appear; Blair took default judgment; seven months later, Burgener moved to set it aside. He couldn’t meet the standard for discretionary relief – he couldn’t show, for example, that he had moved promptly – so he argued that the judgment was void (in which case the trial court must set it aside) due to defective service. The trial court denied his motion.

The court first mentions that on appeal he raised ten different issues. If you don’t know what that means, please learn the lesson: it means that he’s going to lose. The fewer issues you present, the stronger – not the weaker – your appeal is. That ‘s not just our idea; that was known in your father’s and grandfather’s day, and probably has been ever since there have been appeals. One of the reasons we write this blog is that nowadays many lawyers have never been taught these basic things. Filing a brief with a long list of issues makes appellate judges think you a) a novice, b) an idiot, c) someone who just wants to maximize the fee, or d) a combination thereof. Because so many lawyers and firms are “c” the practice will never disappear. But for goodness’ sake don’t be fooled by that into thinking it the right way to do things.

Why else do you think this court specifically noted that Blair presented ten assignments of error but then, for purposes of analysis, condensed them into just three? It’s trying to say that he should have presented three in the first place.

The court also noted that the transcript of the hearing on the motion to set aside was not in the record on appeal and that in its absence “we presume the evidence and arguments presented at the hearing support the trial court‟s ruling.” That goes too far – it’s hard to see how the transcript could have been helpful and it certainly can’t mean that a ruling must be upheld without one – but is a symptom of the court’s annoyance with Burgener, caused by the ten-issue problem.

Anyway, the three issues were whether service was impractical (thereby permitting alternative service), whether the method of alternative service violated due process, and whether Blair sufficiently complied with the order.

On the first, Burgener argued that service on a corporation can never be impractical since you can serve the Corporation Commission ““[w]hen a domestic corporation does not have an officer or agent in this state upon whom legal service of process can be made”  (Rule 4.1(l)). The court says that the rule doesn’t apply because Burgener’s corporations did have an agent on whom “service could be made” (Burgener himself) – even though service could not, this opinion affirms, be practically made on him.  That, therefore, begs the question. Does the rule mean that there is no stat agent or that the stat agent can’t be served? If it means that there is no stat agent, how do you square that with the statute requiring that there be stat agent? Does the rule assume a violation of the statute? But aren’t we supposed to interpret things as being consistent with each other? And wouldn’t that support Burgener’s analysis? Whether it would or not, the issue deserves more analysis than the Court of Appeals gives it – which is none.

Burgener also argued, apparently, that service wasn’t shown to be impractical because the process server hadn’t tried hard enough. The court says that the “impractical” standard is less than the “due diligence” standard necessary for service by publication. “Impractical” means “extremely difficult or inconvenient.” Under these facts the trial court did not abuse its discretion in finding impracticability.

Burgener relied in part on a State Bar Committee note that “the best means of service practicable [sic] under the circumstances is required.” The court says that this doesn’t apply to alternative service (it applies to service by publication) and that if it does, it’s wrong. This reinforces what we have said elsewhere about State Bar Committee notes.

On the second issue the question is whether the alternative method of service included “reasonable efforts . . . to assure that actual notice of the commencement of the action is provided to the person to be served.” Blair argued that service with a receptionist who works for eight different offices wasn’t good enough. The court doesn’t really analyze that issue, either; instead, it punts: “[b]ecause Appellants have failed to provide a transcript of the hearing . . . we cannot say the court erred.” Well, it certainly could have, if the court had erred, which on this point it probably didn’t.

Finally, Burgener argued that service was invalid because Blair had sent copies of the process to Burgener’s business, not home, address. Here things get squirrely. The court says both that the order required sending them to the home address and that it required sending them to the home or business address. It therefore also  says, in the same paragraph, both that “Blair did not comply strictly with the trial court‟s order” and that “Blair thus strictly complied with this term of the court‟s order.”

This case is published, we assume, for the discussion of what “impractical” means (that’s what the court seems to have spent the most time on). But it isn’t as taut as we would normally expect from a published opinion.

(link to opinion)

The issue here is whether, having failed to plead in your Answer the affirmative defense that you have an agreement to arbitrate, and having actively litigated for a year, and having participated in a comprehensive pretrial conference without mentioning arbitration, and having demanded a jury trial, you can then force arbitration.

Cortez died in a nursing home. Her PR sued it for wrongful death. Having done all of the above the nursing home then moved to compel arbitration because an agreement requiring it had been part of her admission paperwork. The court granted the motion. The Court of Appeals reverses.

Basically, the court takes several pages to explain that by doing these things the nursing home had waived the defense. The trial-court argument apparently used the word “repudiate”; a footnote informs us that “waiver” and “repudiation” are interchangeable in this context. This portion of the analysis concludes by saying that “Once [the nursing home] had demonstrated conduct wholly inconsistent with arbitration, it “acquiesce[d] in the waiver thereby making the revocation complete and binding on both.” In the charitable spirit of the season we will pass over that Delphic pronouncement without further comment.

The nursing home’s argument was that it hadn’t found the file before filing its Answer, therefore didn’t know about the arbitration agreement, and therefore didn’t intentionally relinquish a known right. The court says that it had “constructive knowledge” since it always used the same forms and since its employee had signed the agreement. Actually, the lawyers had constructive knowledge of their client’s actual knowledge; unfortunately, it’s pretty clear that this isn’t what the court means.

The home also argued that the PR hadn’t shown prejudice. “But in Arizona a showing of prejudice has been required only when a party is attempting to prove waiver specifically on the ground of unreasonable delay.” In other words, the court now reveals that the basis of the decision was not delay but  “conduct inconsistent with an intent to arbitrate, such as the filing of a complaint or answer [sic].” In other words, repudiation, not waiver, and there is a difference between them after all. In any event, the court next says what it should have said to begin with: the PR was of course prejudiced, by having to fight a year’s worth (two, including this appeal) of litigation.

The home also argued the public policy favoring arbitration. The court points out that when you’ve squandered the advantages of arbitration – a cheaper and speedier resolution – there’s no point in requiring it.

Speaking of the spirit of the season, this whole opinion should be passed over. As a memorandum it is perfectly serviceable; as a published opinion it makes no contribution except confusion.

(link to opinion)