Here, for a change, is a plaintiff trying to argue that the defendant was not within the course and scope of employment and a court trying to find that he was. But this intro may spoil the court’s surprise; it drops a couple of early hints but waits until page 8 of 10 to make this clear.

Kimbro was a Phoenix DPS officer on temporary duty in Cochise County, where he rear-ended McCloud’s car while driving to lunch. McCloud promptly gave notice of her claim against the state, DPS, and Kimbro but then blew the one-year statute of limitations. So everybody but Kimbro got out and she was reduced to arguing that he wasn’t working for the state after all.

The rule elsewhere is that travelling employees are in the course and scope even when eating and sleeping, unless on distinctly personal business, but the Arizona precedent for that was in workers comp cases. This opinion adopts the rule for civil cases. Kimbro was working for the state, the claim against him was barred, summary judgment for him affirmed.

McCloud argued that Kimbro was covered by state insurance at the time of the accident. The court counters that under the Administrative Code having state insurance doesn’t create liability. The response is correct but unfortunate. It is an endlessly tempting idea that the scope of insurance shapes the scope of liability rather than the other way around. The courts should squash it definitively rather than by citing a line or two in the Risk Management regulations – but they won’t, since it is occasionally useful to them.

Our own endless temptation is to charge the windmills, so let’s try to improve opinion-drafting:

“Kimbro, as the moving party, is entitled to judgment as a matter of law.” That’s an unfortunate way to phrase it, no doubt an inadvertence, since summary judgment can also be granted against the moving party.

“Under Arizona law, “[a]n employer is vicariously liable for the negligent or tortious acts of its employee acting within the scope and course of employment,” the court explains, and cites a case for it. Please next time remember also to explain what “employer” and “employee” mean. Lawyers who benefit from that sort of thing will also appreciate a review of the the order of the alphabet and a primer on the tying of shoes. And cite cases.

Is it really necessary to include footnotes to discuss the things the court has decided that it doesn’t need to discuss?

Finally, please do remember, honestly, that the insertion of headings and sub-headings is not a substitute for organization, its a crutch for the organizationally-challenged.

(link to opinion)

Sometimes you read a case and wonder what the [bleep] was really going on.

Bennett agreed to buy a hotel from Baxter, conditioned on getting financing. He didn’t get it, so Baxter arranged to sell to someone else. Baxter refused to return Bennett’s $10,000 deposit. In retaliation, Bennett recorded his purchase agreement (which of course interfered with the new sale) and refused to release it until he got his money back. They sued each other.

That’s right: having sold a property for $1.7 million, Baxter got greedy about $10,000; Bennett deliberately clouded a title he had no interest in. Seems a shame that either won the case. But, after a bench trial, Bennett did. Baxter appealed.

Most of Baxter’s claims were thrown out on summary judgment; what remained was slander of title (and interference with contract, though having mentioned that the opinion drops it). This claim, the opinion says, was based on A.R.S. 33-420. It grants treble damages against a person who records a “forged, groundless . . . or otherwise invalid” document claiming an interest in title. A document “purporting to create an interest . . . not authorized” by law is presumed groundless. According to the court, Baxter argued that since no law specifically permits the recording of a real estate sales agreement, it was groundless. This is such a dumb argument that the opinion blows it off in a few sentences.

The discussion seems like the typical newspaper report of a trial: accurate bits and pieces assembled wrongly. Was that really what Baxter argued? Didn’t Bennett act precisely for the purpose of making a claim on title – a claim he knew he didn’t have – and precisely for the purpose of blocking another deal until he got what he wanted? Since when must a slander of title claim rely on a statute? Isn’t that a separate claim? What happened to interference with contract?

As for Bennett’s claim, it was based on one 132-word sentence in the contract. (A sentence that long doesn’t just beg for trouble, it grabs trouble by the lapels and double-dares it.) It could be read either as letting Baxter keep the deposit if Bennett didn’t buy the hotel or as letting Baxter keep it only if Bennett didn’t perform “in accordance with” the contract. The difference, apparently, is that getting out of the deal for lack of financing was in accordance with the contract, which would get Bennett the money back. The trial court ruled that the sentence – at least when read in conjunction with a a provision the opinion doesn’t quote – was unambiguous and the Court of Appeals agreed: it meant “in accordance with.”

Was the appellate court’s decision on the contract de novo or did it uphold the trial court’s ruling? Good question; the opinion wants it both ways. And why didn’t either court do the sensible thing and call ambiguous language ambiguous?

Having dealt with mere substance, though, the opinion addresses what takes up about two-thirds of the opinion and at least that much of the court’s thought: costs and attorneys fees. The trial court awarded Bennett a bunch of both.

Baxter argued that a lot of the fees arose out of tort, not contract claims. What do you do when you have both? The trial court applied a case called Ramsey v. Air Meds, which says that a tort claim will “arise out of a contract” only when it could not exist “but for” the contract breach. But it misapplied the case, ruling that but for the contract the tort claims “would” (not “could”) not have been brought. Last year, in Modular Mining Systems,  the Court of Appeals basically threw up its hands at trying to apply Ramsey and simply awarded fees when the issues are “interwoven.”  So the opinion remands to let the trial court cite Modular Mining when it re-awards the fees (the opinion isn’t worded quite that blatantly).

The trial court had also awarded fees because Baxter’s claims were groundless, harassment, not made in good faith. Baxter argued that there were no specific findings to support this. At first the opinion says that the findings include enough bad things to justify fees but then decides that one of those bad things might not have justified some of them so it remands all of them for “reconsideration” (i.e., rewording).

The trial court had awarded all Bennett’s costs. The opinion has to point out that there is a statute on what costs are taxable and that most of Bennett’s weren’t. Wasn’t anybody paying attention?

Finally, Baxter argued that its two shareholders were included in the judgment even though they weren’t parties in the case. They were also not parties to the appeal, so the court decided that it had no jurisdiction to decide whether they could appeal (that’s what it says).

How does that happen? Did that sweet guy Bennett just inadvertently add to his judgment people he had never before bothered to name (and who were therefore not in the existing caption)? Did Baxter’s lawyers catch it in the court below? If not, why not; if so, what did they do about it? And if not, how do you like having to hope that the trial court paid no particular attention to what it was doing?

One more problem with this case: we shouldn’t read an opinion and end up with the suspicion that one party and its lawyers got slammed because someone, somewhere, didn’t like them.

(Link to opinion)

We begin the new year with a criminal case. This one has a constitutional issue but is intriguing mostly because of the odd way it seems to have been handled.

Montes was accused of murder. He pleaded self-defense. The statute put the burden of proving that on him; before his trial the Legislature passed a statute reversing the burden but our Supreme Court had held, in a case named Garcia v. Browning, that it was not retroactive. Montes was convicted. He appealed, arguing a defect (of a type not relevant to this opinion) in the instructions and a sentencing error.

After the appeal had been briefed and submitted, Montes filed a “Motion to Suspend Rules and to Permit Supplemental Briefing on a Significant Change in the Law.” The Legislature had just passed (or was about to, the opinion is not clear), in response to Garcia v. Browning, a new law making retroactive its reversal of the self-defense burden of proof. The Court of Appeals denied the motion and, about two weeks later, issued a memorandum opinion affirming the conviction and sentencing. (You might not find it using links at the right, as the court apparently pulled it from the memo list when this opinion was issued even though this does not supersede it; perhaps the court will rethink that, in the mean time this link may work for a while. This opinion’s description of the sequence of events, by the way, is vague, so we’ve looked at the on-line file to check the dates.)

Montes moved for reconsideration, again arguing the new retroactivity statute, which came into effect a few days thereafter. This opinion was written in response to that motion, is called an “Opinion,” considers the retroactivity issue that the court had earlier refused to consider, concludes that the retroactivity statute is unconstitutional – and then announces that it is denying the Motion for Reconsideration.

The opinion realizes that it first needs to explain why the court didn’t simply grant the motion for supplemental briefing in the first place. The court admits that it had the power, and good reason, to do so. But, it says, “it would have been inappropriate to presume an outcome of the appeal or extend or accelerate the processing of the case based on the impending effective date of the new statute. Furthermore, it would have been inappropriate to presume what the parties would do if the case were decided before the effective date.” What does that mean? Well, whatever it means, we shouldn’t have to figure it out. If the court had coherent reasons for denying the motion then the opinion should state them coherently, so that the profession can be appropriately guided; instead we get obscure murmurings that beg more questions than they answer. Perhaps, though, the court meant this: “When Montes asked to file supplemental briefs we hadn’t even begun to think about the case, so maybe we would have reversed even without his supplemental briefing. Besides, we didn’t want to have to read any more briefs like the first one he filed [which the memo opinion criticized].” Perhaps it also meant “We weren’t sure whether we could or should consider a statute that hadn’t gone into effect yet.” And maybe it meant “We thought the parties might cut a deal after our opinion and the case would go away.” Or maybe not. Maybe it meant “since we work to deadlines around here, we wanted to get something out the door even if we would have to put something else out later.” And maybe its just the court’s way to say “we changed our minds” or “we goofed” – or, rather, to avoid saying either.

As for the constitution, the Supreme Court held in Murray, 194 Ariz. 373, that the Legislature can’t undo a judicial decision by amending a statute retroactively. That’s a violation of the separation of powers. It makes no difference that someone claims that the amendment merely “clarified” earlier legislative intent. The self-defense-retroactivity statute therefore didn’t change the law of Garcia.

The court concludes that because he was properly convicted, “We deny Montes’s (sic) motion for reconsideration.” We’re always eager to learn: is there a rule or case somewhere that makes the definition of “reconsideration” outcome-oriented? The only way we can understand the disposition is to assume that reconsideration isn’t officially considered “granted” unless its effect is to change the result. It is otherwise hard to figure how the denial of a post-opinion motion could result in another opinion (rather than an order) that considers for four pages the substance of the issues that the motion asked the court to consider. We, perhaps in simple ignorance, would have said “the Motion for Reconsideration is granted; the conviction is nevertheless affirmed.”