Kimicata v. McGee (CA1 5/10/12)

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The right to attorney fees for injunctions against harassment.

The parties obtained harassment injunctions against each other. McGee asked for a hearing to quash Kimicata’s injunction, which the trial court did. McGee then asked for, and was granted, over $16,000 in attorney fees under 12-1809N. Kimicata appealed the fee award.

She argued that the statute’s first sentence relates to “enforcement” of court orders and so applies only to violation proceedings. The Court of Appeals holds that that sentence doesn’t restrict the third sentence, which is the one about fees and which refers to the “action,” not just the enforcement.

The statute requires a hearing but since Kimicata didn’t ask for one the court holds that she waived it. She also waived her argument that the trial court had to make findings of fact, by not asking the trial court to do so. But the opinion says that the trial court doesn’t have to do that anyhow.

One wonders whether all those court programs that encourage and teach do-it-yourself harassment injunctions will now mention that they can escalate the problem to a new level by introducing a huge financial issue. Great for lawyers, though.

(link to opinion)

Castle v. Barrett-Jackson (CA1 5/10/12)

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At least in a non-insurance setting, small print is apparently not enough to trigger reasonable expectations.

Castle bought a ‘57 T-bird at a Barrett-Jackson auction, then sued Barrett-Jackson and the seller/consignor for consumer fraud. The Complaint didn’t allege that Barrett-Jackson misrepresented anything and the sale paperwork said that all representations were the consignor’s.  The trial court dismissed the Complaint against Barrett-Jackson. Castle appealed.

He argued that the paperwork can’t relieve a party of its own fraud. But the paperwork didn’t do that, it was simply evidence that Barrett-Jackson hadn’t made any representations.

So Castle argued reasonable expectations. He said he shouldn’t have been expected to read the language at issue because it was in small print. But the circumstances required by Darner were not present to indicate that Barrett-Jackson had reason to believe that Castle wouldn’t have accepted the term (i.e., the term wasn’t weird or oppressive and didn’t violate the express terms or the purpose of the agreement).

(link to opinion)

Grubb v. Do It Best Corp (CA2 5/4/12)

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This products case discusses the liability of a nominal middleman who actually had little to do with this particular transaction.

Grubb’s husband was killed by an exploding space heater. She sued everyone in the chain for products liability and negligence. The hardware store that sold the heater was a member of a cooperative, Do It Best (DIB), but had bought the heater directly from its manufacturer rather  through DIB. DIB included it in a catalog of items available to member stores and kept a small processing fee for the transaction. DIB moved for summary judgment, which the trial court granted.

The Court of Appeals affirms, based on some other drop-ship cases. DIB never possessed the heater, had title to it, or had any warranty or shipping obligations for it. DIB did not have the “participatory connection” to the sale necessary for strict liability. Including the heater in its catalog merely made it a “product distribution facilitator” under Restatement (Third) Products Liability 20, which is a type of creature not strictly liable.

As to negligence, the court assumes duty but says that Grubb did not cite anything in the record establishing a standard of care or its breach. “Accordingly, Grubb has waived these issues and we will not address the merits of her claims regarding standard of care and breach of duty.” Its hard to know whether this means that there wasn’t any such evidence in the record or there was but Grubb’s briefs were defective.

(link to opinion)