Brown v. Dembow (CA1 2/25/20)

This is about impeachment by a prior conviction under Rule 609 of the Rules of Evidence.

(So how does it begin? “One Sunday afternoon in November 2015, Howard Brown took his dog for a walk in Paradise Valley. It had been raining, the ground was wet and the skies were overcast and dark.”  We don’t know whether this is an hommage to Edward Bulwer-Lytton, a  comment on modern journalistic style, or a quiet joke. But it must be one of them, the alternative being that someone actually thought it a good way to begin a legal opinion.)

Plaintiff’s decedent was hit by a car driven by Defendant. At trial the court refused to let their counsel impeach her because her conviction for drug paraphernalia, originally a felony, had been converted to a misdemeanor at the conclusion of her supervised probation. They appeal a defense verdict.

The Court of Appeals affirms. The Superior Court can designate certain felonies as misdemeanors either at the time of sentencing or later. If its done at sentencing, an earlier case already held that impeachment under 609 isn’t allowed. After spending some time explaining felonies and misdemeanors the court tells us that “[t]he focus of impeachment turns on whether the witness, when testifying, is a felon.”  (Whether this follows from anything the court has said we leave to those interested enough to read the opinion. Though if you do read it we suggest that you take its simplistic conclusions about the common law with a grain of salt.) Defendant wasn’t a felon by the time she testified so she can’t be impeached. The court then dismisses a few of Plaintiffs’ individual arguments, which have to do with pesky things like statutes and other cases rather than the court’s “focus of impeachment” rationale.

Probably the right result, we’d say. But this is one of those opinions that leaves you less satisfied with its result at the end than you were at the beginning.

(Opinion: Brown v. Dembow)

Hwal’Bay Ba: J Enterprises, Inc. v. Jantzen (2/25/20)

This opinion concerns “the circumstances under which a tribal entity enjoys sovereign immunity as a ‘subordinate economic organization’ of the tribe.” If you know what that means then you will want to read it, though it tells you not much of anything new except how to organize your motions and briefs on the subject. But the court clearly wants it to be seen as the new leading case so we’ll mention it, though its not really worthy of a full blog.

The real party in interest was injured on a rafting trip organized by a tribal entity. She sued; the entity claimed immunity; the trial court denied its motion to dismiss. The Court of Appeals — presumably seeing this as an issue that would go further up anyway — denied the entity’s special action; the Supreme Court accepted it.

The court briefly reviews basic sovereign-immunity law, reviews at length the Arizona cases on point, and makes passing mention of other jurisdictions. Rather than draw its conclusion from that, though, the court chooses first to reformulate it into “six non-exclusive factors to examine in deciding whether an entity is a subordinate economic organization of a tribe . . . .” The need for doing so isn’t clear, especially since the court neither adds anything new nor omits anything old (except, perhaps, by accident). Its “factors” are broad categories that include all the facts and circumstances that might, as shown by the earlier cases, bear on the subject. But of course from now on you will need to cite the court’s categories and follow its organization in order to show that you have read the case and are following the “law” in announces.

Justice Bolick concurs separately in order to opine that the Tenth Amendment (which for some reason he refers to it as “amend. X”) should limit sovereign immunity.

(Opinion: Hwal’Bay Ba: J Enterprises, Inc. v. Jantzen)

Rizzio v. Surpass Senior Living (CA1 1/30/20)

We learn here that the validity of a plaintiff’s contract with a defendant can depend on the nature of the fee agreement she later signs with her lawyer.

Plaintiff’s daughter put her in Defendant’s nursing home. Plaintiff was injured at the home and sued it. Defendant moved to compel arbitration, there being an arbitration agreement in the contracts Daughter (who had mom’s power of attorney) had signed. Plaintiff objected, arguing that the agreement was unconscionable. The facts were:

  1. The agreement required Plaintiff to pay Defendant’s costs and attorney’s fees regardless of the outcome of a dispute;
  2. The contract advised the patient to obtain counsel before signing it;
  3. Signing it was not a requirement for admission to the nursing home;
  4. Daughter testified that she met with Defendant’s representative for 10-15 minutes before signing and the arbitration provision was not pointed out to her; the representative testified that her standard practice was to send out the documents beforehand, point out the arbitration agreement, and meet with people for over one hour;
  5. the provision regarding costs and fees was expressly severable from the remainder of the contract;
  6. Plaintiff’s fee agreement with her lawyer was of the no-recovery-no-fee (or cost) variety.

After an evidentiary hearing the trial court denied the motion, deciding that the agreement was procedurally and substantively unconscionable and that it violated Plaintiff’s reasonable expectations. Defendant appealed.

The Court of Appeals reverses.

First, it says that the “superior court’s findings here do not establish procedural unconscionability.” This was merely a “standardized adhesion contract.” Such contracts do not have to be explained, and it was Daughter’s fault for not reading it, and anyway the part she didn’t read told her to get a lawyer. “This record does not support a finding of procedural unconscionability and we therefore reverse that finding.” (It is not clear here whether the court means “finding” or “conclusion” or whether it knows the difference.  In any event, is the court saying that the conclusion does not follow from the findings or that the findings are unsupported by the evidence? The former is an odd call, the latter a risky one.)

The court then agrees that the provision regarding costs and fees is unconscionable, “oppressive and may not be enforced.” Then it rules that the provision should be severed. (Actually, it doesn’t; it simply says that Plaintiff’s arguments on severability are wrong. But later it suggests that this part of the opinion had indeed “stricken” or “severed” the provision.)

Is the agreement unconscionable without the fee provision? It can be if the costs of pursuing arbitration are prohibitive. But Plaintiff didn’t have to pay anything unless she won. So the court decides that costs are not prohibitive. For it this is the crux of the opinion; its opinion’s first sentence tells us that the case concerns “an agreement to arbitrate . . . when counsel for the party seeking to avoid arbitration has agreed to advance all costs.” And so the validity of the contract Plaintiff signed in April 2017 depends on the nature of her agreement with her lawyer a year or so later. (And so her lawyer’s act in having her enter into it caused or contributed to her failure to overturn the arbitration agreement. Will he report that to his carrier?)

Finally, the court decides that the trial court erred in finding a violation of reasonable expectations. Defendant, the court tells us, “had [no] reason to believe” that Plaintiff wouldn’t have signed the contract had she known about the arbitration cost provision and, anyway, the court severed it. (A provision that makes her pay whether she wins or loses in a contract she doesn’t have to sign in order to get her mom admitted — and there’s no reason to believe that she wouldn’t have signed it had she known? The court has already told us that the provision is “oppressive”; has that no bearing on what a defendant has reason to believe?)

Costs on appeal to Defendant; remanded for proceedings consistent.

Your homework: calculate the chances that Defendant will change even one comma of that oppressive, unconscionable, and unenforceable — but delightfully in terrorem and conveniently severable if the rubes catch on — provision.

(Opinion: Rizzio v. Surpass Senior Living)