Searchtoppers v. Trustcash (CA1 12/20/12)

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This opinion is written to disagree with BYS v. Smoudi about default judgments. It goes out of its way to do so since the issue was waived in the trial court. Whether it adds more light than heat, or merely buttresses our contention that the present rules are poorly-worded, is a matter of opinion.

BYS, says this opinion, stands for the proposition that “a party who has been defaulted in a liquidated damages case for failure to appear [is] nonetheless entitled to notice and an opportunity to be heard” – if, that is, he has appeared later. Trustcash filed an untimely Answer after default. The trial court nevertheless granted, without hearing, Searchtoppers’ motion for default judgment based on liquidated damages.

The court holds, basically, that Rule 55(b)(1) applies to liquidated damages, 55(b)(2) to unliquidated damages, and never the twain shall meet. Trustcash defaulted, damages were liquidated, so it wasn’t entitled to a hearing.

There is a dissent which, since its author wrote the unanimous opinion in BYS, agrees with that case.

The majority says that the rules are unambiguous. So we now have three judges of CA1 saying that those unambiguous rules mean one thing and two saying that they mean another. If this were an insurance case we’d be well on the way to prima facie ambiguity. But the government doesn’t hold itself to the same standards and so doesn’t have to worry about them.

(link to opinion)

Johnson v. Gravino (CA2 12/19/12)

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CA2 concludes that the trial court misinterpreted a divorce decree. But that isn’t the publishable part. The opinion exists to discuss, once again, appeal procedure.

The trial judge issued a substantive ruling and ordered Johnson, the prevailing party, to file a fee affidavit. Gravino filed an appeal before the court ruled on the fees. The trial court decided that the notice of appeal was premature, that it still had jurisdiction; it awarded Johnson’s fees. Gravino appealed again.

On appeal the parties didn’t argue jurisdiction; the court goes out of its way to raise the issue and write an opinion about it. It is further evidence that the recent spate of cases about appeal procedure reflects the appellate courts’ frustration about seeing so many botched appeals.

The thrust is this: a premature notice is a nullity. The trail court can disregard it (not strike it – that’s for the Court of Appeals) unless jurisdiction is “fairly debatable, in which case the trial judge should let the appellate court decide. If the appealing party believes the appeal timely but the trial court proceeds anyway, the answer is special action.

The trial court can respect even a clearly void notice, though, as the opinion points out by discussing its recent opinion in Flores v. Martinez, another divorce case used as a vehicle for an opinion about appeal procedure. (But before you think that the court is being hard on domestic-relations lawyers remember that those are most of the “civil” cases CA2 sees nowadays.)

The opinion says that a trial court proceeding despite a notice of appeal should notify the Court of Appeals that it is doing so, so that the appellate court can stay its proceedings pending some motion by the parties. Presumably that’s what will happen but this is a procedural rule that should go through the normal rule process.

(link to opinion)

Cornerstone Hospital v. Marner (CA2 12/7/12)

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We sympathize with the judges of CA2, condemned to a life almost entirely devoted to criminal cases (about 80% – and the remainder include domestic relations and other cases many of us wouldn’t quite consider civil). But this was a bit of a stretch.

Plaintiff sued under the Adult Protective Services Act (46-451 et seq.) for the death of his wife. One of the defendants was a hospital and so he named an expert (a nurse). The hospital challenged the expert; the trial court ruled that she could testify about some things but not others. But the order also said that 12-2604 (expert witness qualifications in medical malpractice actions) does not apply to APSA cases. Cornerstone took a special action.

The trial court’s order specifically ruled that the nurse was qualified even if 2604 applied. That was the effective part of the ruling. The hospital’s argument was that the court let her talk about too much. Whether the statute applied was an inessential part of an evidentiary ruling.

So the Court of Appeals decides that this is the case on which to address the issue.

Why? Why bother to take this special action? The court gives three “compelling reasons.”

First, “the challenged ruling is interlocutory in nature” so “there is no direct review . . . by appeal.” And here we thought that was merely a prerequisite to a special action. Silly us; now we know that every special action contains at least one “compelling reason” to accept it.

Second, whether the statute applies is question of law. True enough. And that’s a reason to accept a special action. But, again, since when is it a “compelling” reason?

Third, it is a question of “first impression and statewide importance.” And that’s the key. The court apparently took this special action because it wanted to. It reached out to grab an issue not because there was any real need to but because the issue piqued its interest.

The court concludes, after a workmanlike but hardly outstanding analysis, that 2604 applies to APSA claims against health care providers.

And so it grants relief? Nope; the opinion tells us that even before it begins its statutory analysis. RNs can testify, the court confirms, as to other RNs but also as to LPNs and nursing assistants The fact that they are separately licensed by the state does not require an expert licensed in each specialty. LPNs and CNAs are subordinate to RNs and have more limited skills. The court set the proper bounds on the nurse’s testimony.

So much for that “compelling” 2604 issue.

(link to opinion)