Para v. Anderson (CA1 11/1/12)

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The court says this is a case of first impression but this sort of maneuver has been tried more than once before. Lawyers are like that – full of brilliant, new ideas that aren’t either.

Plaintiff sued two doctors for malpractice. He settled with one. The other, Para, promptly named the settling doctor as a non-party at fault, scheduled the deposition of the expert Plaintiff had disclosed against the settlor, and indicated his intention to use that disclosure. In response, Plaintiff announced that he was re-designating that expert as a consultant and he moved for protective order against the deposition. The trial court granted it. The Court of Appeals accepted Para’s special action and reverses.

It doesn’t take the court much time or analysis to conclude that “a party may not reinstate the privileges and discovery protections that apply to consulting experts by redesignating an expert as a consultant once the expert’s opinions have been disclosed.” “Once the party chooses to disclose the expert’s information and opinions, a mere change of label cannot erase the effect of the disclosure.”

But the court also says that “while the opposing party may depose such an expert, the trial judge retains broad discretion under Ariz. R. Evid. 403 to regulate the use of that expert’s testimony at trial.” That’s all it says about that; it doesn’t say what sort of circumstances it has in mind or how the testimony might be “regulated.” Maybe the idea is that the trial court can exclude the fact that the Plaintiff’s lawyer was the one who selected the expert and elicited the opinion. Its typical of our courts to try to tidy up things in advance by throwing out broad hints about issues that are obvious but not before them.

(link to opinion)

Gorman v. Pima County (CA2 10/4/12)

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A cautionary tale on working with government, though this one may actually allow an estoppel.

Gorman wanted Pima County to build a park for bicyclists. The County was receptive; over a few years there was a lot of communication back and forth and the County did some studies, issued a building permit, and amended an intergovernmental agreement to allow the park. Gorman, at the County’s request, spent money it aid of some of that. Then the neighbor’s complained and the County shut down the project. Gorman sued for damages – apparently her out-of-pocket, time spent on the project, etc. She sued for breach of contract and estoppel. The trial court dismissed her Complaint; she appealed.

On the breach of contract allegation, the Court of Appeals affirms. The problem is that there never was a written contract. Gorman relied principally on a letter signed by the County Administrator. Pima County argued that he had no authority to enter into such a contract. Gorman argued that the Pima County Code have him authority to sign grant applications and that her spending money out of her own pocket was a grant. But the Pima County Board of Supervisors had adopted a policy saying that it had to approve all grants. The court holds that this policy is consistent with the Code and is entitled to the force of law.

Gorman also claimed equitable estoppel. The court points out that she should have claimed promissory estoppel (i.e., a promise to do something in the future), that equitable estoppel (misrepresentation of present or past facts) is a defense, but says in a footnote that it doesn’t’ matter since she had alleged the necessary elements – though they’re the same, only the facts differ.

Its hard to establish an estoppel against government. You need not only a writing but, the court tells us, a “degree of formality.” It decides that whether that existed here – what with all the formal-looking things the County did (building permit, amendment to agreement) – is a question of fact, so the court reverses on the estoppel issue.

The County points out that this could lead to a lot of other estoppels. For governments this is a bad thing, since they are accustomed to being able to change their minds at a whim. On the other hand, the court tells us that “we have carefully considered the potential impact” of this decision – but it doesn’t otherwise discuss the matter. “The circumstances here are unlikely to recur,” it says, for reasons it doesn’t explain. And, anyway, “equity favors our resolution.” Pedants could argue that that doesn’t actually, really, technically, necessarily mean that Gorman should win her case – but what is the trial judge going to make of it? Talk about putting your thumb on the scale.

(link to opinion)

In the matter of Stewart (CA1 9/27/12)

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We have here an interlocutory ruling irrelevant, or at least incidental, to the final judgment, but now the subject of an appeal that only the appellant filed a brief in. A perfect opportunity, you’re thinking, for a memorandum opinion: failure to file an answering brief admits error and the court isn’t going to create precedent based on this kind of record. But CA1 specifically refuses to do that (in, you guessed it, a footnote). If that surprises you then you forgot the Cardoso case.

Stewart’s Will disinherited one of his sons, who filed suit to contest it. The Will and associated Trust contained in terrorem clauses. Since  the son wasn’t a beneficiary anyway they didn’t apply to him but they did apply to siblings that he wanted discovery from (the clauses included  those who “cooperate or aid” a contest). So he successfully asked the trial court to rule them void.

Son then settled his claim. At the behest of other siblings, the trial court reiterated in the resulting judgment its ruling on the in terrorem clauses  (a foolish mistake which, by ensuring an appeal, caused this whole problem). The estate appealed that part of the judgment. The son didn’t file a brief.

The opinion first rules, after quick and conclusory analyses, that the son had standing to raise the issue and that it was ripe for adjudication. It apparently sees these as being basically the same issue.

Then it moves to the merits. Those of you who do this law will remember 14-2517: in terrorem clauses are invalid if there is probable cause for the contest. The court holds, in a vague and prolix way, that this applies regardless of competing or conflicting language in the Will (which here said that the in terrorem clauses applied “regardless of whether any such contest is made in good faith or is ultimately successful”). The trial court had ruled that this conflicting language itself voided the clauses, so the court reverses.

But once again (as here) the court makes another, dispositive ruling in a footnote: the statute only applies to Wills, so the trial court was wrong to rule on the Trust clause under 14-2517.

The “cooperate or aid” clause, the court holds, does not violate public policy because the court will interpret it to mean voluntary cooperation or aid – so siblings in the future needn’t worry about violating an in terrorem clause by giving a deposition.

(link to opinion)