Tilly v. Delci (CA1 1-29-09)

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Tilly sued Delci for personal injury; Delci got summary judgment because, apparently, Tilly failed to respond to a boilerplate Request for Admission that he wasn’t injured (and you wondered why insurance defense counsel used those things). Tilly appealed, arguing that because the summary judgment was tied up with his (egregious) failures to make discovery, the ruling was a sanction and the trial court should therefore have considered a less drastic alternative and whether the problems were his fault or his attorney’s. The Court of Appeals upheld the summary judgment.

Far from being too severe, the judge’s various rulings illustrate the lengths to which trial courts are willing to go to accommodate plaintiffs who can’t/won’t/don’t know how to respond to discovery, even after long delays and several warnings.

The problem comes with the discussion in a footnote. Substantive footnotes are dangerous. Too often, they are things that the court has only half thought through but just can’t bear to edit out. (Courts rarely edit well.) Other times, the judge has thought things through perfectly well, knows that the footnote is the important part of the opinion, but doesn’t want to call attention to it just yet.

Footnote 4 looks like the former variety. Tilly had opposed the motion for summary judgment by telling the court that he had now responded to the discovery requests; he did not tell the court what his responses said nor why they raised a question of fact. The Court of Appeals said that “This is not a case where the trial judge could have independently searched the record and discovered evidence that placed factual matters in dispute, to the extent that such a search was required.” Footnote 4 discusses whether such a search is ever required.

What do we know so far? That this case is not about whether a trial court need search the record to find questions of fact. So isn’t the footnote dicta? Yes. So why the footnote? Well, for some reason someone had clearly put in some time researching the issue, and it would have been a shame to waste that, right?

Here’s what the footnote says:

There are differing views expressed [on whether the trial court need do a search]. Compare [several cases saying “no”] with [a couple of cases saying “yes”]. From our perspective, whether such a search is required, either by the trial court or on appeal, depends on ‘the volume and complexity’ of the specific litigation in which the motion for summary judgment is filed.

Huh? Whether a court has a legal duty to do something depends on how hard the judge will have to work? If so, what is the standard for determining how hard is too hard?

The footnote actually cites a case for this nonsense. But that case said that because of the “volume and complexity” of modern litigation, cases saying that a court must search the record itself are “contrary to modern authority.” We know that because footnote 4 already quoted it to that effect, as one of the cases saying a court needn’t do a search. So how does a a case squarely on one side of the question — and which the court just quoted as being on one side of the question — suddenly become authority for the court’s new, equivocal position?

Yes, its dicta; yes, its nonsense; yes, its easy to see that its both. But that won’t stop the next guy who fouls up his summary judgment defense from citing it as authority that the court ought to do his work for him.

Quintero v. Rogers (CA1 11/18/08)

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The enjoyment of life ephemeral but punishment is forever.

Quintero was the Personal Representative of a man who was hurt in an auto accident and then, after filing suit for it, died of unrelated causes. Defendant argued that his claim for punitive damages did not survive, under A.R.S. §14-3110. The Court of Appeals held that it did: the statute says “pain and suffering” claims do not survive, punitive damages are not for pain and  suffering, therefore they survive. (There was also a claim for medical expenses, so there were “actual” damages on which to base punitives.)

That punitive damages survive the death of the defendant had already been established, in Haralson v. Fisher Surveying, Inc., 201 Ariz. 1 (2001). Quintero at least makes more sense than Haralson, which allows “punishment” for the sin of being the object of a tortfeasor’s testamentary wishes.

Quintero also tried to keep a general damages claim alive by arguing that hedonic damages were also not “pain and suffering,” and therefore also survive. The Court held, correctly, that hedonic damages are a species of pain and suffering and died with the plaintiff.

(Defendant also argued that punitive damages could not be awarded under these facts: he was driving thirty miles an hour over the speed limit, weaving in and out of traffic,  lost control of his vehicle, and pled guilty to reckless endangerment.  It takes the opinion a surprising amount of space to point out that that’s wrong.)

City of Phoenix v. Fields (1/22/09)

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How many principles of appellate law can you violate in one case? As many as you please, if you’re the Supreme Court.

This case came before the court on petition for review of a special-action decision of the Court of Appeals. The lawsuit is a class action against the City of Phoenix. By statute, lawsuits against governments and government employees require that a notice of claim be presented first. The issue here was how the notice-of-claim requirement applies to class action. The statute requires that the notice include an amount for which the case can be settled; a claim can’t be settled for a class until the class has been certified, people have been allowed to opt out, etc.

The court came rather easily to the common-sense conclusion that the notice must contain a settlement amount for the claim of the individual claimant who proposes to sue on behalf of a class.

What caused the court trouble was to figure out how to rule for the claimant even though she didn’t do that.

Its solution was to decide that the City had waived the defense. The problem with that is that the trial court had already found that it hadn’t. That was a finding of fact. If you thought you knew appellate law, until now you believed that a trial court’s factual finding must be accepted unless no substantial evidence in the record supports it; that the finding will not be overturned unless it is clearly erroneous; that the reviewing court must examine evidence in the record on both sides of the question to determine this; and that the reviewing court should normally defer to the trial court even when it is in as good a position to judge the matter as the trial court (e.g., when the credibility of witnesses is not at issue). (If you don’t claim to know appellate law, trust us: a whole bunch of cases say this sort of thing.)

So how did the court handle this? It cited the evidence in favor of a waiver and then said

Typically, waiver is ‘a question of fact’. [citation omitted] But in this case, waiver by conduct is apparent from the extensive litigation record below.

That may be “apparent” from the facts the court chooses to mention. But if there weren’t any other facts, how did the trial judge decide otherwise? Was there no evidence to support him? The court does not say. Was there evidence that the court did not find “substantial? The court does not say. Was the finding clearly erroneous? The court does not say. And what of the deference due the trial judge? You guessed it.

The new doctrine of “apparent error” is not the only interesting novelty to this case. The waiver issue was not raised in the Court of Appeals. So how can the Supreme Court reach down to pull up an issue from the trial court? Because if it were to rule only on the issue before it, then, after remand, if the trial court were to enter judgment for the defendants, if the case were not settled, and if it were not otherwise resolved, then “an appeal would undoubtedly ensue” that would raise the waiver issue.

If you thought that special actions did not address issues that could be raised by appeal, as the cases say, and if you thought that appeal was not to be assumed, as the cases say, then you, too, are apparently in error.