Hall v. Read Development (CA1 4/12/12)

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This case holds incidentally that a subsequent house purchaser can’t rescind but its real interest concerns how to factor in attorneys fees in deciding who is the successful party under 12-341.01.

Hall was unhappy with her house and sued its builder, Read. The jury awarded her $30,000. This was less than Read had offered in settlement and so it argued that under 12-341.01A Hall was not the “successful party” for purposes of awarding fees. But the trial court awarded fees anyway, on the theory that the amount Hall’s fee request (about $300,000) exceeded Read’s offer. Read appealed.

The statute says that the offeror is the successful party if the “judgment finally obtained” is less than the offer. Since the “judgment finally obtained” can include fees the question becomes whether the amount of the fees to be included should be considered in deciding whether they should be included. The Court of Appeals says “yes,” and affirms. It says that “judgment finally obtained” is clear language. Then, in backhanded acknowledgment that context just might have something to do with it, the court says that, anyway, the statute doesn’t specifically prohibit choosing the successful party the same way – or in some sort of overlapping way – in a case where there’s been a settlement offer as in a case where there hasn’t. The court also says that it is “harmonizing” the statute with Rule 68, which makes specific provision for the fee question. “Harmonizing” a statute with a rule – even if the two said roughly the same thing – raises interesting constitutional questions that, if they occurred to the court, are deftly hidden.

We may be having an off day; we’ve read the twenty pages the court takes to reach this conclusion more than once and still can’t figure out how a law that the person who wins gets fees can logically mean, or was intended to mean, that the person who gets fees wins.

(link to opinion)

In the Matter of Thomas, et al. (Presiding Disciplinary Judge)

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This is not an appellate opinion but we’re moved to comment because so many people are already talking about its style.

There was a time when trial judges knew and enforced the forms and conventions of findings and conclusions. Those days are long past. Calling a finding a conclusion, or vice versa, could earn you a mild rebuke from a good judge; nowadays it is so routine that often, as here, there is no attempt at distinction.

Also routine is the inclusion of random thoughts, observations, and other pearls of wisdom that aren’t either one but that the writer just can’t leave out. The PDJ’s excuse is presumably that Rule 58 calls for a “report” that “includes” findings and conclusions, so his office can throw in whatever else it pleases.

But should it?

This opinion is the problem in its most acute form. The thought that extraordinary subjects demand extraordinary responses, even to the extent of drawing upon the divine and the classics, is hardly unique:

I thence invoke thy aid to my advent’rous Song, that with no middle flight intends to soar . . . while it pursues Things unattempted yet in Prose or Rhyme . . .

What in me is dark illumine, what is low raise and support; that to the height of this great Argument I may assert Eternal Providence, and justify the ways of God to men.

The problem with enlisting the Almighty is that He (or She, or Whatever) is – for reasons that do not entirely passeth the understanding – more likely to respond to Milton than to your local lawyer/judge/bureaucrat. Heroic efforts that fall flat may deserve to be praised but are instead laughed at, as is happening to this opinion.

And that’s a bad thing, for more than one reason.

First, the laughing is not only at individuals but also at the institution – the PDJ’s office and, by extension, the Court. Yet the point of the thing – of throwing out the old scheme and replacing it with the PDJ apparatus imported from Colorado – was to strengthen faith in and respect for our policing system.

Second, and worse, a thing like this can produce not only laughter but suspicion. A legal tribunal is supposed to be above the fray, to be impartial no matter how contentious the issue. Writing a dark-and-stormy-night melodrama – complete with heroes, villains, faux-Greek tragedy, and elaborate moral judgments – signals the opposite. It suggests a tribunal joyously leading the charge for what it obviously considers the emotionally satisfying result. PDJ panels can talk about their “sui generis” mission all they like but sui generis partiality is still partiality. We do not suggest that these gentlemen lacked impartiality. But their form of expression does their case, and their office, and our profession, no good at all.

(link to opinion)

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D’Amico v. Structural I (CA1 4/3/12)

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This employment case raised several issues, addressed in this opinion and a memo, but only a point about the psychologist-patient privilege is of much general interest.

Mr. and Mrs. McLeod owned Structural I, a framing contractor. They wanted to transition out of running the business. Their counselor – a registered social worker they were seeing about various issues – suggested that they hire D’Amico for a few years as a “bridge CEO.” They did, then feuded with and fired her; she sued, won at trial, and Structural I appealed.

(The main lesson here is not to rely on your social worker to advise you on who should run your construction company.)

The counselor testified at trial about her sessions with the McLeods. Structural argued that this violated the psychologist-patient privilege. (D’Amico didn’t argue that the counselor didn’t qualify since she wasn’t a psychologist.) The Court of Appeals rules that Structural doesn’t have standing to raise the issue because the privilege belongs the McLeods.

Which raises the question of what happened here. Under the statute, the psychologist-patient privilege is like the lawyer-client privilege: the psychologist can’t divulge the info without consent. But evidently this counselor did. Or did she think she had consent because the lawyer for the McLeod’s company was at her deposition, for example, and didn’t object? Does that make a difference? Did that lawyer object – and if not, why not? Why didn’t the McLeods write the counselor early on, instructing her not to say anything?

Too many unknowns to draw any conclusions. But it sounds like a problem that should have been nipped in the bud rather than after it had grown into a problem at trial/appeal.

(link to opinion)