Jamerson v. Quintero (CA1 11/7/13)

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“We hold that  . . .  when a principal is jointly and severally liable for the fault of its agent, a stipulated dismissal with prejudice of the principal does not as a matter of law bar a claim against the agent.”

This is a slip-and-fall in a drug store. Plaintiff sued Walgreen’s and its janitorial service. She settled with Walgreen’s. The janitorial service then moved for dismissal, on the principle that the release of the principal releases the agent.

This principle may not be familiar to those with more than a foggy grasp of the law of agency since theory, and the practice of the common law, are to the contrary. But dictum in a 1945 case citing Am. Jur. supported it as did, the court points out, a 1963 passage in A.L.R. We think and hope that the court is suggesting – and we think and hope that most lawyers understand – the foolishness of relying on such as Am. Jur. and A.L.R. They are (or were, in the days before the internet) ways of finding cases; to rely on their legal conclusions is lazy and amateurish (except, of course, when you can’t find cases that actually say some favorable thing that Am.Jur., etc. say they do).

But the court avoids common-law problems by relying instead on UCATA. Principal and agent are still jointly and severally liable (12-2506); release of one joint tortfeasor doesn’t release the other (12-2504). The janitorial service argued that 2504 doesn’t apply, citing a case (Law 2007) involving the release of the agent. The court explains – using some good common-law theory without quite acknowledging it as such – that Law can’t apply to the converse situation.

This opinion uses the U.S. Supreme Court page format recently adopted by our Supreme Court. We don’t recall seeing this in a CA2 opinion yet but presumably its only a matter of time until everyone is sophisticated, or modern, or whatever somebody thinks this is. (Do they really think it modern? Should we tell them that its older than their “old” format?)

(link to opinion)

Stout v. Justice Court/State (CA1 10/17/13)

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Another stumble on the way to electronic nirvana.

Stout pled guilty to a misdemeanor in the Justice Court. After sentencing he moved for Rule 32 post-conviction relief. To support this he requested transcripts of some hearings; Rule 32 says he “may request . . . that certified transcripts be prepared.” But Rule 7 of the Superior Court appellate criminal rules says that the “record on appeal” is a “recording or certified transcript . . . , as the Superior Court may require.” The Justice Court, and then on special action the Superior Court, told Stout he could have recordings but not transcripts.

The Court of Appeals reverses, holding that Stout can have transcripts.

As usual nowadays Stout mistimed his appeal, so as usual nowadays the court has to include a paragraph explaining why it can hear the case. This is Barassi situation, so see Baker if you’re interested in that.

The court next decides which rule applies. It takes the Occam’s Razor approach, which is helpful to the case but less so to the law: Rule 7 applies to the “appeal” record so it doesn’t apply here because a Rule 32 proceeding isn’t an “appeal.”

There can, then, be a difference between the record for some purposes and the record for others. That way lies chaos.

Next, the court decides that it has to decide whether the word “transcript” doesn’t really mean “recording” as well.  (The State didn’t make that argument; it didn’t file a brief.) That this didn’t go without saying is ominous; if words in the rules mean whatever an appellate court says, however plain they are, then there are no rules.

But in this case the court couldn’t quite mange to call black white. Dictionaries tell it that a transcript is written or printed. In addition, though, the court tells us that “the Supreme Court has recognized a difference between transcripts and electronic recordings by distinguishing between them”: ARCAP 11 says “transcript,” Rule 7 says “recording.” Well, yeah, but whether the distinction indeed makes a difference is what the Court of Appeals told us it had to decide; if there’s a distinction between rules 7 and 11, why wonder if there’s a distinction between rules 7 and 32?

The court acknowledges that giving special privilege to people who pled guilty in the Justice Court is silly but under the existing rules this is surely the correct result.

The court takes care, though, to make obeisance to the zeitgeist. In a long paragraph it explains to us that recordings are just as good as transcripts and that they don’t prejudice anybody and that – in a passage sure to bring a gleam to the eyes of the judicial-branch bureaucrats who nowadays rule the law and our profession – they save money.

(link to opinion)

Rogers v. Arizona Board of Regents (CA2 10/1/13)

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“This appeal requires us to determine when a quiet title action for an easement by implication accrues pursuant to A.R.S. 12-821.” If that doesn’t sound as fascinating to you as it does to us then that means you have a life. But whoever wrote this opinion may have too much of one.

The opinion’s statement of the facts is not crystal clear but the bottom line is that the U of A’s experimental farm in Pinal County put up a gate that blocked a nearby landowner from using a road he claimed an easement over. The parties sued each other for declaratory judgment and to quiet title; the landowner added a trespass count. The trial court ruled for the ABOR; the landowner (or, rather, by this time, the successor trustee of his estate) appealed.

The Court of Appeals affirms. The opinion spends some time reciting basics about the law of easements; as often happens in these things, its author seems to have found the subject an exotic and complicated novelty. (That might be true also of “fee simple,” which the opinion throws in a footnote to explain. Its never clear, actually, that the opinion knows greatly more about real-property law than someone read in the hornbook it repeatedly cites.)

The opinion then makes the point that the statute of limitations applies to an action that asserts an interest in someone else’s property, though not to one that seeks merely to quiet title to one’s own. But it goes on and on about this and eventually decides, based on one Utah case, that the former is not  a “true” quiet title action. There may be a basis for this in common-law theory but it will come as a surprise to those who’ve actually practiced Arizona law. It will also surprise those who’ve read the first seven pages of the opinion, in the course of which we’re told that a) an easement is an interest in real property and b) under our statute (12-1101) a quiet-title action can be brought by one who claims an interest in real property. Finally, just in case we’ve left anyone out, it will surprise those who read the next page of the opinion, which admits that quiet-title relief can be granted to one who proves an easement by implication.

Why does the court do this?  Because, having told us in the first paragraph that the issue is when a quiet-title action accrues, halfway through the opinion it changes its mind and says that the issue is “when [the] declaratory judgment claim began to accrue.” Apparently that’s because in the court’s mind this isn’t a “real” quiet-title action but just a DJ.

The statute against the State is one year (that’s 12-821). The gate went up in early 2008; the landowner complained about it, demanded a quitclaim deed for the easement, and threatened suit in September 2008; but he didn’t file until December 2009. So the claim is barred.

On the trespass claim the argument was that it was continuing, i.e., that a new claim arose every time the gate was closed. The court says that it needn’t address that because you can’t have a trespass claim without a property right and the action to establish that right is barred by limitations.

The landowner made a couple of other arguments but we pass over them as they are unenlightening and seem kind of silly.

(link to opinion)