Thiele v. City of Phoenix (CA1 4/2/13)

Posted on by

Rule 67(d) is an old friend to defendants. As always happens, though (remember the notice-of-claim cases), some defendants use their tools crudely rather than carefully and the courts have to slap them down.

Thiele’s suit claimed that a city inspector hit him. Because he owned no property in the state the city, pursuant to the rule, moved that he be required to post a cost bond. For $30,000.

Now lets pause a moment. $30,000? For taxable costs? In a little he-said-she-said personal-injury case?The city tried an excuse – Thiele had sued it before and used “dilatory tactics . . . likely to . . . increase the costs of litigation.” But come on, guys, $30,000? That’s just dumb. At least pretend to be actually concerned about costs, not just about trying to set up dismissal.

In the enough-blame-to-go-around department, the trial court ordered a bond in that amount. Thiele said he couldn’t pay it, there was a hearing about that, and the court reduced it to $15,000  — but never, at least on the appellate record, required the city to justify that, or any other, amount. Thiele couldn’t pay; the court dismissed the case. Thiele appealed.

The first question was whether the rule is constitutional. The court holds that under the rational-basis test it is. It has the legitimate purpose of protecting defendants from the inability to satisfy a cost judgment but does not exclude from the legal system those who can’t afford to pay since 67(e) exempts them.

The next question was the amount of the bond. “In fixing the amount of a security, the trial court must consider the estimated taxable costs of the litigation.” Nothing in the record supported even $15,000 and the facts “strongly” suggested that that’s too high.

The dismissal is reversed and the case is remanded with instructions to reconsider the amount of the bond.

In the old days a trial judge would have spotted this problem before getting reversed for it – and would probably have chewed you out for pulling such a stunt. Now that trial judges are bureaucrats who mostly sign whatever their JAs put in front of them you are less likely to get tough love from the bench but more likely to get reversed.

(link to opinion)

Shaw v. CTVT Motors (CA1 3/28/13)

Posted on by

This holds that the economic-loss rule does not apply to claims under the Consumer Fraud Act.

Defendant repaired Plaintiffs’ car poorly; Plaintiffs sue for various economic losses (loss of value, loss of use, cost of re-repair). Defendant argued that the economic-loss rule barred all but contract claims. The trial court agreed and dismissed.

The Court of Appeals reverses. The economic-loss rule applies to common-law tort claims, not statutory claims. The statute contains no such limitation. The court also doubts that the rule should be applied to a claim of fraud in the inducement.

By CA1 standards this is a pretty crisp analysis, save for some mostly-pointless footnotes; perhaps it was actually written by the pro tem who signed it.

(link to opinion)

Baker v. University Physicans (3/12/13)

Posted on by

We blogged the Court of Appeal’s opinion here. Go there for the facts. The Supreme Court’s disposition is the same but it analyzes the statute differently.

Principally, it holds that “specialty” includes subspecialty. The trial court was correct that Plaintiff’s expert had to be a pediatrician with a subspecialty in hematology/oncology.

While the court says that a “specialist” is one who is board-certified it doesn’t’ say anything about using web sites to make that determination, much less to decide appeals. It also decides that 12-2604 requires an expert in the same specialty only when the care or treatment was within that specialty. And it concludes that in order for the defendant doctor to qualify as a specialist he or she must have spent the majority of time practicing that specialty. That’s because the statute requires the plaintiff’s expert to have done so; the logic eludes us.

The court also holds the statute constitutional against various challenges.

The court vacates CA1’s opinion except insofar as that opinion vacated the judgment and remanded to give Plaintiff another bite of the apple. Why do that if the trial court’s ruling was correct? The Supreme Court mentions that it “declined to review” that issue. Its interesting to know that the disposition of a case is a separate issue. That confirms something we’ve said before in another context – though back then we thought we were being satirical: the disposition of an appeal isn’t the logical procedural consequence of the holding, its whatever the court wants to do.

(link to opinion)