IB Holdings v. Rancho del Mar (CA2 8/24/11)

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This appeal from a preliminary injunction is mostly uninteresting and fact-specific but does raise a couple of interesting points.

Rancho built a fence across what IB claimed as an easement. The trial court granted a preliminary injunction against the fence. Rancho unsuccessfully appealed.

It argued, first, that the trial court had used the wrong standard. The judge had followed Shoen (1990), which requires a “strong likelihood that [the party seeking the injunction] will succeed at trial on the merits.” Rancho argued that the standard had changed, citing the U.S. Supreme Court case of Winter (2008) which says “likely to succeed on the merits.” The Court of Appeals says that the Shoen language is still the law of Arizona. It does not attempt to say which rule is right. (Neither, for that matter, did Shoen or Winter, both of which focused on bitter factual disputes and simply quoted the injunction standard from other cases.)

Shoen also requires “the possibility of irreparable injury . . . not remediable by damages.” IB’s injury would be loss of income and loss of property value. Rancho cited cases for the proposition that injunction isn’t appropriate for purely economic loss; the court’s incisive analysis of them is to explain, in a footnote, that they aren’t binding because they’re out of state. 

But damages uncertain or difficult of calculation can support equitable relief, according to the Restatement. In response, Rancho pointed out that IB’s Complaint had pled for damages “in an amount to be proven at trial” without claiming that that would be difficult. Though it didn’t fly, and probably shouldn’t have (the court ends up deciding that the trial court’s finding of irreparable harm was sufficiently supported by the evidence), we think this an instructive argument. Have you ever thought about why your prayer says what it says? Most lawyers haven’t; to them the prayer for relief is just a form tacked on at the end, maybe by a paralegal or computer, using language somebody at some unknown time took from some other Complaint. There is old authority to the effect that the prayer isn’t technically part of the Complaint but that doesn’t mean that it isn’t important or doesn’t have consequences. But how many prayers like IB’s have you seen? Hundreds? Why do they want damages “in an amount to be proven at trial? The formulation has no legal meaning – unlike, for example, “just and reasonable damages,” though that isn’t necessary, either. “Just and reasonable damages in an amount to be proven at trial” is just an abomination. The truth is, this sort of language was used by lawyers accustomed to having to pray for a specific amount and uncomfortable with not doing so even long after that sort of requirement was, for almost all cases, dropped and/or prohibited. This is one of the things (like our favorite legal dinosaur, Rule 31) that stays in the law because too many people know too little about their profession to know why they have it.

The very least you can do would be to use proper modern English: “in an amount to be proved at trial.” Yes, we know lawyers like “proven,” mostly because it somehow sounds more impressive, and because they can point to the old Scottish verdict “Not Proven.” But “proven” is archaic at best. Leave it to its few remaining jobs, e.g., “proven commodity.”

And where else, by the way, do these people think the damages will be proved? If you said the injunction hearing under Rule 65 then we’ll give you half a point since that’s technically the trial. But how many people who use the language have that – or much of anything else– in mind?

(link to opinion)

Engler v. Gulf Interstate (CA1 8/9/10)

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This opinion attempts to correct that in McCloud.

Gray, a Gulf employee, drove a car that hit Engler. Gray normally works in Houston but was living in a hotel in Yuma while commuting daily to a Gulf project in Mexico. The accident happened when Gray was driving back to the hotel from dinner, after the work day was over. The trial court granted summary judgment for Gulf, concluding that Gray was not within the course and scope. Division Two then issued McCloud, holding that meals of an employee working out of town are in the course and scope, but the trial court refused to change its mind. Engler appealed.

Division One affirms. McCloud applied a workers’ compensation rule to a respondeat superior case. This opinion rejects it, citing Robarge (1982) for the principle that the two have a different focus (relatedness to a job versus employer’s right of control) and Carnes for the idea that they have different purposes and effects (compensation versus encouraging proper supervision by creating liability to third parties).

So, since Gulf had no control over Gray’s going to dinner he wasn’t in the course and scope.

Whoever wrote this opinion, signed by Judge Winthrop, is a true believer in the classic Division One way of doing things: 24 pages, only nine footnotes but many of them quite long, a boilerplate page about the standard of review, etc. But we’ll cut this one a break since, first, this is correct and McCloud is wrong and, second, since you probably do need to explain yourself at length when disagreeing with another panel. (Yes, we said panel; although McCloud was a Division Two case this opinion doesn’t mention that, instead using the now-politically-correct “a panel of the Arizona Court of Appeals.”)

(link to opinion)

Lind v. Donahoe (CA1 7/28/11)

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Cave iudicem. This is the third time AzAppBlog has reviewed an opinion (the others here and here) telling this judge that he’d abused his contempt power.

In this guardianship dispute among family members the court appointed a doctor to do a competency evaluation. One of the several lawyers involved subpoenaed the doctor’s records of her prior reports. Instead of telling the lawyer that there were 700 of them she called the judge and complained that she was being harassed. Instead of notifying the lawyers and telling them to work it out the judge called them in, decreed that the subpoena was improper and invalid because “some things just jump out at you [even though] you can’t articulate reasons,” demanded that lawyers tell him under oath privileged information such as who had discussed what about the subpoena, and sanctioned them in various ways, ignoring in the process most applicable rules and principles of law except to give them lip service.

The court issues this opinion to explain that you can’t do that. If you’re not sure about why, read the opinion. Actually, since there’s no new law here, maybe it issues it simply to try to get this judge to stop doing it. Fat chance.

An interesting detail is that some of the lawyers had formally entered into a “common interest agreement.” If you do such things be aware that, though a popular lawyers’-magazine topic some years back,  they can have more utility in theory than in practice. But this opinion says nothing critical of them and opines in a footnote that they needn’t be disclosed.

And footnote three, which first says that the court doesn’t decide whether the subpoena was overbroad, then decides it: “[E]xperts who are paid to testify in court should not be outraged or caught by surprise when they receive inquiries into the patterns that their opinions may reveal. Such inquiries are essential to meaningful cross-examination and an understanding of the integrity of the methods the experts employ.”

(link to opinion)