Nickerson v. Green Valley Recreation (CA2 11/30/11)

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This opinion about a homeowners’-fee dispute throws a mountain of law at what is apparently a molehill of a case.

The deeds on Plaintiffs’ homes are subject to restrictions requiring them to be members of GVR. When GVR imposed a fee on new purchasers many homeowners sued, arguing that the restrictions were invalid. The trial court denied their request for preliminary injunction; then, saying that its conclusions at the injunction hearing were the law of the case, granted GVR summary judgment.

Plaintiffs pointed out that injunction conclusions are not the law of the case. But they didn’t do so until the Motion for New Trial; their opposition to summary judgment hadn’t mentioned it. So the Court of Appeals says that they waived the issue and, anyway, the trial court was right.

Plaintiffs’ main argument was  that the restrictions didn’t “touch and concern” the land. That’s a traditional requirement for such a covenant but GVR argued, inter alia, that it no longer applies. The Restatement no longer includes it and and some recent statutes haven’t. The opinion announces that it will discuss that issue first, does so for awhile, then says that it won’t decide it because the statutes came after the deed restrictions and were not retroactive. “Nor do we look to the Restatement for guidance because . . . the . . . covenants do touch and concern the land” (based on the facts and cases from other jurisdictions). In other words, after going out of its way to feature the issue the court evades it rather than address it, which is the only thing it could do anyway since – as the opinion notes but doesn’t mention the significance of — the issue is one of Supreme Court precedent.

Plaintiffs also made arguments about unconscionable and illusory contracts. The opinion disposes of the latter in a paragraph but devotes about seven pages to the former, for reasons we don’t know. This makes it a useful source for cites on the issue – including a discussion of “procedural” versus “substantive” unconscionability – but there’s little real analysis here since the facts, at least as reported in this opinion, didn’t come very close to supporting the argument.

GVR cross-appealed the trial court’s failure to award it attorney fees. The court had done the usual thing: deny the claim but, as a sop, deny fees for reasons that don’t bear too much scrutiny – here, the supposed “novel” and “close” nature of the claim and the “chilling effect” on future litigation. The Court of Appeals affirms since the trial court “articulated a reasonable basis.” Which proves – and this is perhaps the important point of the case – that nonsensical does not necessarily equal unreasonable.

(link to opinion)

Estate of Braden v. State of Arizona (11/30/11)

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We blogged the Court of Appeals’ opinion here. The Supreme Court vacates it and affirms the trial court’s grant of summary judgment.

The opinion first makes clear that the issue addressed is only whether the State is liable under A.R.S. § 46-455, not at common law or under the wrongful-death statute. The court avoids the “assume” issue that entertained the Court of Appeals.

The statute allows an action against a “person” or an “enterprise.” The State is not, under the law, a “person,” so the question becomes whether it is an “enterprise.” The statutory definition of “enterprise” includes “legal entity” and the court concedes that Arizona is that. The majority feels, though, that if the legislature had intended to include the State it would specifically have said so. In addition, the statute says “labor union or other legal entity.” Since there’s no comma between “union” and “or,” “legal entity” isn’t an “independent, catch-all category” but means an entity like a labor union.

Justice Bales, joined by Justice Hurwitz, won’t split that hair. He argues that legislative history supports reading “legal entity” to include the State and he also devotes a couple of paragraphs to the use of serial commas. It turns out that the legislature’s style manual follows the newspaper convention of omitting the final comma and that the quoted phrase did have a comma before a 2009 amendment made some technical and grammatical changes. For the dissent, then, the comma issue is meaningless.

The obvious lesson to learn here is the correct use of serial commas. Ignore the newspapers and the legislature. Follow Fowler, Follett, Strunk, White, and the Chicago style manual: use a comma after every member of a series. The only exception is with a name or title. So, it’s “a, b, c, and d” except that “A, B, C and D, attorneys at law” is correct.

(link to opinion)

Motzer v. Escalante (CA2 11/22/11)

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This fees-and-costs opinion is a useful reminder of the Associated Indemnity case on fees and also says something worthwhile about costs.

The parties sued each other in contract. The jury awarded money both ways, though more to Motzer. The court denied fees to either but awarded Motzer some of her costs. Motzer appealed, wanting fees and all her costs.

“There is no presumption that a successful party should be awarded attorney fees under §12-341.01.” The trial court “has broad discretion” to analyze various factors. “Those factors apply in determining whether a court will exercise its discretion to grant a successful party attorney fees rather than in determining which party is successful.” Although the trial court found Motzer to be the successful party the record (the opinion, appropriately, does not go into much detail about it) supported its decision not to award fees.

(Motzer tried to base an argument on a memorandum decision; the opinion has to remind her that that can’t be done.)

Motzer wanted the cost of preparing jury notebooks, arguing that a court order required her to prepare them. But the order, while encouraging notebooks, required only that if used they had to meet certain standards. Had the court actually ordered them then they would have been taxable under 12-332(A)(6). “A bright-line rule that only costs ordered by the court are taxable allows trial courts to determine and counsel to be aware of what costs are recoverable.”

For some reason the trial court denied Motzer’s costs for buying copies of Escalante’s depositions of her and her expert, so the opinion has to reverse that; otherwise it affirms.

(link to opinion)