This little special action may seem unimportant but we think it a useful reminder of something.

Defendant’s Disclosure Statement attached an expert’s report explaining why a non-party was at fault. Defendant then filed its Notice of Non-Party at Fault; the Court of Appeals says it only “cursorily” described the non-party’s fault (though it was more extensive than many non-party notices we’ve seen and probably more than a few we’ve written). Defendant later disclosed another report from another expert again detailing the non-party’s fault.

Plaintiff then moved to strike the notice because it hadn’t sufficiently described the non-party’s fault. The trial court granted the motion. Defendant took special action.

Is anyone in doubt of the result? Jurisdiction accepted, relief granted. “When a notice specifically identifies a non-party at fault, and timely disclosures explain the factual basis for the allegation of fault, the documents must be read together.”

You may wonder how a trial judge with any concept of civil discovery could grant such a motion. That’s the reminder: many don’t have any (although we don’t mean to draw conclusions about this particular judge). The trial bench is filling up with people whose sole or primary practice experience (to the extent they had much at all) was with criminal law. Expect more of this sort of ruling.

(link to opinion)

This case discusses the relationship between Rule 68 (offer of judgment) and Rule 77f (appeal from arbitration – the 23% rule) in a case where the numbers were just right to tangle them.

Plaintiff sued for personal injury (car accident). Defendant made an offer of judgment. At arbitration Plaintiff beat it. Defendant appealed. The jury award was below the OJ, so the court awarded Defendant some costs (Rule 68g), but was not more that 23% greater than the arbitration award, so the court ordered her to pay fees (Rule 77f).

Defendant argued that the court should have applied Rule 68 first, deducting those costs from the amount of the verdict before comparing it to the arbitration award. Had it done so, she would have done more than 23% better and wouldn’t have had to pay fees.

The court looks to the language of Rule 68:”the determination . . . shall be made by reference to the judgment ultimately entered, whether on the award . . . or after an appeal of the award pursuant to Rule 77. This language, says the court, “provides that the court shall determine whether to impose a sanction under Rule 68(g) only after first complying with Rule 77.“ But the language doesn’t’ say anything about what the court does, it just says that there can be an appeal. So the court also cites Hales (App. 1996), a Rule 68 case that talks about making “apples to apples” comparisons by including costs in both the OJ and the judgment. The court apparently realizes that this doesn’t hit the nail on the head either, though, by roping in an Oregon appellate case for the proposition that “the amount of any sanction awarded . . . is not to be regarded as part of the judgment.”

The court chides Defendant for not citing any authority for her position. That’s a bit much. If there were decent authority on the point outside the rules themselves (Hales is tangential at best) then the court wouldn’t have had to reach to Oregon for some. If there were already authority, this opinion wouldn’t be publishable.

(link to opinion)

This case holds that the rule of Sage v. Blagg Appraisal also applies outside the context of home-buying.

Developers hired Bradley to appraise some raw land and used the appraisal to get a development loan from BLI. When they went broke BLI sued, among others, the appraiser, arguing that the appraisal was excessive. Bradley moved to dismiss on the theory that he had no duty to BLI. The trial court granted it. The Court of Appeals reverses.

First the court takes three pages to determine the standard of review. The parties below had submitted a bunch of documents in connection with the motion. Based on the trial judge’s cryptic (but typical) minute entry of what documents he had and hadn’t reviewed, “we are persuaded,” the court says, that the trial judge didn’t use anything extraneous to the pleadings, that the motion therefore wasn’t converted from a Rule 12 to a Rule 56, and that the court can rule de novo. As usual with this phrase, it means that the court has persuaded itself for reasons obscure. (Rule 12 conversion used to be a fairly simple subject until repeated attention from appellate courts turned it into a quagmire, made made worse by the fact that most trial judges have no clue. You have to prompt the trial judge to make this clear – if making it clear is an advantage to you.)

The court then rules that the trial court incorrectly restricted Sage, under which “if Bradley intended to supply his appraisals to BLI, or knew Myers intended to supply them to BLI specifically or to a limited class of persons including BLI, Myers owed a duty to BLI.” We’ll leave it for those in this area of law to argue about whether that’s actually the rule of Sage.

The court then concludes that, giving BLI’s Complaint the benefit of every doubt, it did adequately plead negligent misrepresentation. Usefully, the court mentions something that people don’t seem to remember any more: a “complaint that states only legal conclusions, without any supporting factual allegations, does not satisfy the notice pleading standard.” Those paragraphs in your Complaint that state conclusions of law may make you or your client feel better about the righteousness of your position but are meaningless surplusage.

(link to opinion)