We are late on this one. We try and discuss cases within a week of their appearance, but sometimes we miss our deadline. Developer and Pima County disputed who was entitled to an environmental enhancement fee charged to guests at the Starr Pass Resort.  The opinion is interesting for its guidance on what extrinsic evidence may be considered on a motion to dismiss. If the motion will be converted to a motion for summary judgment under Rule 12(d), this does not mean the defendant must then answer and discovery proceed.  Under 12(d), a trial court has considerable discretion in providing “a reasonable opportunity to present all the material that is pertinent to the motion.” This does not “compel courts to require an answer, discovery, or statements of fact.” If a party needs some discovery, then the party should follow the requirements of 56(d). The court of appeals affirmed the trial court’s reasoning rejecting the defunct developer’s claim to the fees instead of the buyer who purchased the property at a trustee sale. All of this goes back twenty-five years. Like Jarndyce v. Jarndyce, this case does not want to end until the last hope dies, and there are no more fees to earn.

While riding her bicycle in a bike lane in downtown Phoenix, plaintiff Fong rode into an allegedly unmarked excavation trench. There was a factual dispute on whether the bike lane was closed and the signage, but on summary judgment, a court views disputed facts in plaintiff’s favor. She sued the City and the barricade company. The City and barricade company argued the expert statute A.R.S. 12-2602(B) applied, and Plaintiff did not get an expert. The trial court ruled in their favor, and the court of appeals reverses. First, whether expert testimony is required is a legal issue and review is de novo as is whether plaintiff has presented a prima facie case. (We should slow down on the Latin, but the terms are now common place.) The court of appeals fortifies its reasoning with citations from other jurisdictions. Second, as to whether expert testimony is required, if the negligence is grossly apparent to a lay person or within common knowledge, no expert testimony is necessary. The court of appeals relies on the Arizona Supreme Court’s decision in Rossell v. Volkswagen of America, 147 Ariz. 160 (1985). There, the court was reluctant to extend the expert requirement beyond professional malpractice. Lay persons could easily conclude that an excavation in a road without signage or closure is unreasonable and no expert needed. The court of appeals includes several product liability cases involving warnings to consumers as an example, although this unnecessarily complicates its analysis. This is a road maintenance issue and not an issue of design. We have felt uneasiness with the Rossell opinion, its uncertain standard, and its heightened sensitivity to the plaintiff’s bar. We will see if our current Arizona Supreme Court feels this as well.

The Arizona Republic Party obtained review of the trial court and court of appeals decisions to award fees against the Arizona Republican Party and its attorney. The ARP had challenged the hand count procedure for testing ballots in Maricopa County.  That challenge was dismissed for procedural reasons including naming the wrong defendant, requesting the wrong relief, and being late. The lower courts based their decisions on A.R.S. 12-349(A)(1) and (F) which allows an award of fees if a party “[b]rings or defends a claim” without substantial justification, i.e., “groundless and is not made in good faith.”

Judge Lopez authors the court’s opinion, exemplifying his style: plodding, long sentences, interspersed citations, unnecessary prepositional phrases and explanations. He cannot help himself. This sogginess spoils his reasoning. The opinion is 22 pages; it should have been 12. The court agrees that petitioners should have named the Secretary of State instead of Maricopa County, but the requested relief (mandamus) was available, and while ARP could have raised the pre-election procedure earlier, this was not fatal to their challenge. None of this is categorically frivolous. As for “good faith,” whether a lawsuit “is not made in good faith” is not the same as subjective bad faith. The standard is an objective and not a subjective test. The paragraphs worth reading are 38, 40, 44, 48, and 49. Here, the court sets the standards while scolding the lower courts for their arrogance.

link to opinion