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Tuesday, March 28, 2006
In the Matter of Dean: Supreme Court Issues a Mea Culpa
Nancy Dean and Michael C. Nelson began a romantic relationship in 2001, when Ms. Dean served as an Apache County prosecutor and Mr. Nelson served as an Apache County Superior Court judge. During their affair, Ms. Dean appeared in front of then-Judge Nelson 485. Ms. Dean twice denied their relationship when the State Bar inquired. A third inquiry, prompted by Ms. Dean's former spouse, resulted in the hearing officer recommending a six month suspension. Both the State Bar and Ms. Dean appealed the recommended sanction. The Disciplinary Commission determined that the appropriate sanction was a one year retroactive suspension was appropriate. The length of the suspension would require that Ms. Dean apply for reinstatement.
Ms. Dean filed a petition for review, contending first that the Discipline Commission did not give adequate weight to her rehabilitation efforts, and second that neither the hearing officer nor the Discipline Commission gave appropriate weight to the absence of discipline to Nelson. The Supreme Court quickly dismissed Ms. Dean's first contention, pointing out that the presumptive sanction for misrepresentation, the most serious offense with which Dean was charged, was disbarment. Given the severity of her conduct, the Commission's recommendation was appropriate.
The Supreme Court was more concerned with Ms. Dean's second argument. The Court sifted through the proceedings against Mr. Nelson. Charges were first brought against him by the Commission on Judicial Conduct. Nelson resigned before the Supreme Court could consider the Commission's recommendation that he be removed from office. In light of his resignation, the Court did not consider the suspension but ultimately entered an order charging Nelson with costs. The Supreme Court denied the State Bar's subsequent request that Mr. Nelson be disciplined under Supreme Court Rule 46(d), and then denied the Bar's request for clarification. The combination of the Supreme Court's order charging Mr. Nelson with costs and its denial of discipline under Rule 46(d) effectively foreclosed all formal discipline against Mr. Nelson under Rule 46(c) (State Bar has jurisdiction to seek sanctions against a former judge only if there was no final determination by the Court either dismissing the case or imposing a sanction). This result, the Court admitted, was an error. And, when compared with Ms. Dean's one year suspension, made her sanction too severe. Thus, the Court held that "this is the rare case in which reconsideration of an otherwise suitable sanction is appropriate," and reduced Dean's suspension to six months.
Justice Hurwitz authored the Court's unanimous opinion.
Nancy Dean and Michael C. Nelson began a romantic relationship in 2001, when Ms. Dean served as an Apache County prosecutor and Mr. Nelson served as an Apache County Superior Court judge. During their affair, Ms. Dean appeared in front of then-Judge Nelson 485. Ms. Dean twice denied their relationship when the State Bar inquired. A third inquiry, prompted by Ms. Dean's former spouse, resulted in the hearing officer recommending a six month suspension. Both the State Bar and Ms. Dean appealed the recommended sanction. The Disciplinary Commission determined that the appropriate sanction was a one year retroactive suspension was appropriate. The length of the suspension would require that Ms. Dean apply for reinstatement.
Ms. Dean filed a petition for review, contending first that the Discipline Commission did not give adequate weight to her rehabilitation efforts, and second that neither the hearing officer nor the Discipline Commission gave appropriate weight to the absence of discipline to Nelson. The Supreme Court quickly dismissed Ms. Dean's first contention, pointing out that the presumptive sanction for misrepresentation, the most serious offense with which Dean was charged, was disbarment. Given the severity of her conduct, the Commission's recommendation was appropriate.
The Supreme Court was more concerned with Ms. Dean's second argument. The Court sifted through the proceedings against Mr. Nelson. Charges were first brought against him by the Commission on Judicial Conduct. Nelson resigned before the Supreme Court could consider the Commission's recommendation that he be removed from office. In light of his resignation, the Court did not consider the suspension but ultimately entered an order charging Nelson with costs. The Supreme Court denied the State Bar's subsequent request that Mr. Nelson be disciplined under Supreme Court Rule 46(d), and then denied the Bar's request for clarification. The combination of the Supreme Court's order charging Mr. Nelson with costs and its denial of discipline under Rule 46(d) effectively foreclosed all formal discipline against Mr. Nelson under Rule 46(c) (State Bar has jurisdiction to seek sanctions against a former judge only if there was no final determination by the Court either dismissing the case or imposing a sanction). This result, the Court admitted, was an error. And, when compared with Ms. Dean's one year suspension, made her sanction too severe. Thus, the Court held that "this is the rare case in which reconsideration of an otherwise suitable sanction is appropriate," and reduced Dean's suspension to six months.
Justice Hurwitz authored the Court's unanimous opinion.
Posted by azapp @ Tue, Mar 28, 2006
Monday, March 27, 2006
Dressler v. Morrison: Arizona Supreme Court Allows Former Spouse to Bring a Separate Civil Action Claiming Rights to Alleged Community Property Not Disposed of By Dissolution Decree
A man claimed that his former wife had fraudulently induced him to transfer property to her separate property trust during their marriage. Neither the trust nor the property were mentioned in the dissolution decree obtained by the former wife in 2000. The man brought a civil action in 2003 alleging fraud and other claims to the property. The trial court granted the former wife’s Rule 12(b) Motion to Dismiss and stated that the former husband’s claims should be addressed in a Rule 60(c) motion for relief from the dissolution judgment. The court of appeals affirmed in a memorandum decision.
The Supreme Court granted review and held that the ex-husband could bring a separate action to determine ownership of what he claimed to be community property not disposed of in the dissolution decree, at least when the separate action did not attack the finality of the decree. Pursuant to A.R.S. § 25-318(B), community property for which no provision is made in a dissolution decree shall be held by the former spouses as tenants in common, each possessed of an undivided one-half interest from the date of the decree. A number of Arizona cases have relied on that statutory provision and allowed a party to bring a civil action to determine ownership rights in real property alleged to belong to a former marital community but not awarded in the dissolution decree. Since the subsequent civil action did not challenge the finality of the dissolution decree, claim preclusion did not bar the action. The court therefore vacated that portion of the court of appeals’ decision requiring the ex-husband to bring his co-tenancy claim as a Rule 60(c) motion, reversed in part the judgment of the superior court, and remanded to that court for further proceedings.
Chief Justice McGregor wrote the opinion for the unanimous court.
A man claimed that his former wife had fraudulently induced him to transfer property to her separate property trust during their marriage. Neither the trust nor the property were mentioned in the dissolution decree obtained by the former wife in 2000. The man brought a civil action in 2003 alleging fraud and other claims to the property. The trial court granted the former wife’s Rule 12(b) Motion to Dismiss and stated that the former husband’s claims should be addressed in a Rule 60(c) motion for relief from the dissolution judgment. The court of appeals affirmed in a memorandum decision.
The Supreme Court granted review and held that the ex-husband could bring a separate action to determine ownership of what he claimed to be community property not disposed of in the dissolution decree, at least when the separate action did not attack the finality of the decree. Pursuant to A.R.S. § 25-318(B), community property for which no provision is made in a dissolution decree shall be held by the former spouses as tenants in common, each possessed of an undivided one-half interest from the date of the decree. A number of Arizona cases have relied on that statutory provision and allowed a party to bring a civil action to determine ownership rights in real property alleged to belong to a former marital community but not awarded in the dissolution decree. Since the subsequent civil action did not challenge the finality of the dissolution decree, claim preclusion did not bar the action. The court therefore vacated that portion of the court of appeals’ decision requiring the ex-husband to bring his co-tenancy claim as a Rule 60(c) motion, reversed in part the judgment of the superior court, and remanded to that court for further proceedings.
Chief Justice McGregor wrote the opinion for the unanimous court.
Posted by azapp @ Mon, Mar 27, 2006
Friday, March 24, 2006
Curtis v. Richardson: Division One Holds That The Superior Court Properly Upheld The Arizona Department Of Real Estate’s Denial Of Plaintiff’s Application For A Real Estate License.
William A. Curtis appealed the superior court’s judgment affirming the denial of his application for a real estate salesperson’s license. After the Arizona Department of Real Estate denied Plaintiff’s application, he filed an administrative appeal. The administrative law judge, however, agreed with the Department and recommended to the Department’s commissioner, Elaine Richardson, that she uphold the Department’s denial, which she did. The superior court affirmed the license denial, and Plaintiff appealed.
On appeal, Plaintiff raised numerous claims, but the Arizona Court of Appeals rejected all of them and affirmed. First, the court held that the superior court did not abuse its discretion by denying Plaintiff’s motion to change venue from Maricopa County to Yuma County, where Plaintiff and witnesses resided. Because the superior court ruled that neither an evidentiary hearing nor a trial were necessary, the venue did not inconvenience the witnesses.
Second, contrary to Plaintiff’s contention, the superior court was not required to hold an evidentiary hearing under A.R.S. § 12-910 because the court did not deem it necessary to resolve the questions before it—namely, whether the Department’s determination was arbitrary, capricious, contrary to law, or not supported by substantial evidence.
Third, the administrative law judge did not abuse his discretion by denying Plaintiff’s request to change venue. The applicable statutes, A.R.S. §§ 41-1092.01, .03, and .05, do not specify the location of the hearing. Furthermore, the location of the hearing was not unreasonable because the administrative law judge offered “to allow [Plaintiff’s] witnesses to testify telephonically, seven witnesses appeared at the hearing, and [Plaintiff] provided letters and affidavits from ten others.” See Burri v. Campbell, 102 Ariz. 541, 434 P.2d 627 (1967).
Fourth, Plaintiff was not denied procedural due process because he “had notice of the Department’s reasons for denying his application, appealed that decision, and presented evidence to an independent decision-maker,” and he “has not shown that affidavits and telephonic testimony were inadequate methods of presenting evidence.” See Johnson v. Mofford, 181 Ariz. 301, 890 P.2d 76 (Ct. App. 1995).
Fifth, the administrative law judge did not deny Plaintiff equal protection on the ground that “a party who appeals an administrative action and lives in Phoenix or Tucson is treated differently than one who lives in Yuma.” Plaintiff failed to show that he “was treated differently than others in the same situation.” Furthermore, the classification bears a rational relation to a legitimate state interest: “The agency has a legitimate interest in holding the hearing near its location and the location of the [administrative law judge].”
Sixth, substantial evidence supported the administrative law judge’s conclusion that the Department properly denied Plaintiff a license. Plaintiff had not shown present “good character.” See A.R.S. § 32-2153(B)(7). Between 1987 and 1997, Plaintiff had been convicted of six crimes, including two felony drug convictions. In 2000, despite his history of substance abuse, Plaintiff consumed alcohol, “became ill, and was terminated from his employment.” Furthermore, the administrative law judge “was skeptical of [Plaintiff’s] honesty, his ability to accept full responsibility for his actions, and the relatively short period of sobriety compared to the longevity of [Plaintiff’s] alcohol and substance abuse problems.” These findings indicated lack of good character and were supported by substantial evidence.
Finally, the court held that the “good character” standard was not unconstitutionally vague. See A.R.S. § 32-2153(B)(7). The court noted that “an ordinary person would understand that misconduct, such as that involved here, shows a lack of good character.” Furthermore, section 32-2153 has standards as it “lists twenty-five specific acts that permit suspension, revocation, or denial of license.” Courts had upheld similar standards, and the standard was not impermissibly vague as applied to Plaintiff because he had used “‘abusive language, [and had engaged in] belligerent behavior, [that revealed] disrespect for the rights of others, and disrespect for lawful authority,’” and “had inflicted violence on family members[,]” in addition to lacking complete candor at his administrative hearing.
Judge Lankford authored the unanimous opinion.
William A. Curtis appealed the superior court’s judgment affirming the denial of his application for a real estate salesperson’s license. After the Arizona Department of Real Estate denied Plaintiff’s application, he filed an administrative appeal. The administrative law judge, however, agreed with the Department and recommended to the Department’s commissioner, Elaine Richardson, that she uphold the Department’s denial, which she did. The superior court affirmed the license denial, and Plaintiff appealed.
On appeal, Plaintiff raised numerous claims, but the Arizona Court of Appeals rejected all of them and affirmed. First, the court held that the superior court did not abuse its discretion by denying Plaintiff’s motion to change venue from Maricopa County to Yuma County, where Plaintiff and witnesses resided. Because the superior court ruled that neither an evidentiary hearing nor a trial were necessary, the venue did not inconvenience the witnesses.
Second, contrary to Plaintiff’s contention, the superior court was not required to hold an evidentiary hearing under A.R.S. § 12-910 because the court did not deem it necessary to resolve the questions before it—namely, whether the Department’s determination was arbitrary, capricious, contrary to law, or not supported by substantial evidence.
Third, the administrative law judge did not abuse his discretion by denying Plaintiff’s request to change venue. The applicable statutes, A.R.S. §§ 41-1092.01, .03, and .05, do not specify the location of the hearing. Furthermore, the location of the hearing was not unreasonable because the administrative law judge offered “to allow [Plaintiff’s] witnesses to testify telephonically, seven witnesses appeared at the hearing, and [Plaintiff] provided letters and affidavits from ten others.” See Burri v. Campbell, 102 Ariz. 541, 434 P.2d 627 (1967).
Fourth, Plaintiff was not denied procedural due process because he “had notice of the Department’s reasons for denying his application, appealed that decision, and presented evidence to an independent decision-maker,” and he “has not shown that affidavits and telephonic testimony were inadequate methods of presenting evidence.” See Johnson v. Mofford, 181 Ariz. 301, 890 P.2d 76 (Ct. App. 1995).
Fifth, the administrative law judge did not deny Plaintiff equal protection on the ground that “a party who appeals an administrative action and lives in Phoenix or Tucson is treated differently than one who lives in Yuma.” Plaintiff failed to show that he “was treated differently than others in the same situation.” Furthermore, the classification bears a rational relation to a legitimate state interest: “The agency has a legitimate interest in holding the hearing near its location and the location of the [administrative law judge].”
Sixth, substantial evidence supported the administrative law judge’s conclusion that the Department properly denied Plaintiff a license. Plaintiff had not shown present “good character.” See A.R.S. § 32-2153(B)(7). Between 1987 and 1997, Plaintiff had been convicted of six crimes, including two felony drug convictions. In 2000, despite his history of substance abuse, Plaintiff consumed alcohol, “became ill, and was terminated from his employment.” Furthermore, the administrative law judge “was skeptical of [Plaintiff’s] honesty, his ability to accept full responsibility for his actions, and the relatively short period of sobriety compared to the longevity of [Plaintiff’s] alcohol and substance abuse problems.” These findings indicated lack of good character and were supported by substantial evidence.
Finally, the court held that the “good character” standard was not unconstitutionally vague. See A.R.S. § 32-2153(B)(7). The court noted that “an ordinary person would understand that misconduct, such as that involved here, shows a lack of good character.” Furthermore, section 32-2153 has standards as it “lists twenty-five specific acts that permit suspension, revocation, or denial of license.” Courts had upheld similar standards, and the standard was not impermissibly vague as applied to Plaintiff because he had used “‘abusive language, [and had engaged in] belligerent behavior, [that revealed] disrespect for the rights of others, and disrespect for lawful authority,’” and “had inflicted violence on family members[,]” in addition to lacking complete candor at his administrative hearing.
Judge Lankford authored the unanimous opinion.
Posted by azapp @ Fri, Mar 24, 2006
Parrot v. DaimlerChrysler Corporation: Supreme Court Holds That a Lessee Cannot Maintain an Action Under the Magnuson-Moss Warranty Act or Arizona’s Lemon Law Statute
Bill Parrot leased a 2000 Jeep Cherokee from Pitre, a DaimlerChrysler dealership. The Jeep came with DaimlerChrysler’s standard limited warranty, and in connection with the lease financing transaction, Pitre retained title to the vehicle. The Court explained that to have a cause of action under the Warranty Act, a person must be a “consumer” of a consumer product and have a written warranty, implied warranty, or service contract (as defined in the Act). Although the Act sets forth the three categories of “consumers,” each category requires a qualifying sale – sale in which a person buys a consumer product for purposes other than resale. In this case, it was undisputed that Pitre purchased the Jeep from DaimlerChrysler for the purpose of resale, and thus there was no qualifying sale. Consequently, Parrot had no cause of action under the Warranty Act. As for the Lemon Law claim, the available remedies assume that the consumer has the right to transfer title to the vehicle back to the manufacturer. In this case, Pitre owned and held title to the vehicle. Therefore, Parrot had no remedy under the Lemon Law.
Justice Ryan authored the unanimous opinion.
Bill Parrot leased a 2000 Jeep Cherokee from Pitre, a DaimlerChrysler dealership. The Jeep came with DaimlerChrysler’s standard limited warranty, and in connection with the lease financing transaction, Pitre retained title to the vehicle. The Court explained that to have a cause of action under the Warranty Act, a person must be a “consumer” of a consumer product and have a written warranty, implied warranty, or service contract (as defined in the Act). Although the Act sets forth the three categories of “consumers,” each category requires a qualifying sale – sale in which a person buys a consumer product for purposes other than resale. In this case, it was undisputed that Pitre purchased the Jeep from DaimlerChrysler for the purpose of resale, and thus there was no qualifying sale. Consequently, Parrot had no cause of action under the Warranty Act. As for the Lemon Law claim, the available remedies assume that the consumer has the right to transfer title to the vehicle back to the manufacturer. In this case, Pitre owned and held title to the vehicle. Therefore, Parrot had no remedy under the Lemon Law.
Justice Ryan authored the unanimous opinion.
Posted by azapp @ Fri, Mar 24, 2006
Wednesday, March 22, 2006
Espinoza v. Schulenburg: Supreme Court holds that the “firefighter’s rule” does not bar an off-duty firefighter who volunteered at the scene of an accident from suing the person whose negligence caused the accident.
The Schulenburgs were involved in an accident on State Route 101. Espinoza, an off-duty Phoenix firefighter and emergency medical technician (“EMT”), was driving home from work when she saw the accident scene and stopped to assist. While Espinoza was reaching inside the Schulenburgs’ vehicle to turn on the emergency flashers, the vehicle was struck by another car, driven by Barnett, and Espinoza suffered serious injuries. Espinoza sued the Schulenburgs, Barnett and DPS to recover for her injuries. The superior court granted summary judgment to the Schulenburgs citing the firefighter’s rule. The court of appeals reversed, holding that the firefighter’s rule should be narrowly construed so as not to bar claims of off-duty firefighters. However, the court of appeals remanded to the trial court for a determination of whether Espinoza had a duty as part of her job as a firefighter to stop and help. The Schulenburgs appealed to the Arizona Supreme Court. The supreme court reversed the trial court’s ruling, vacated the court of appeals’ decision and remanded for trial on the merits.
Under the rescue doctrine, an injured rescuer may recover damages in tort from the person whose negligence created the need for rescue. The firefighter’s rule is an exception to the rescue doctrine and bars the rescuer from recovering if she is injured while performing her duties as a professional firefighter. The Court first made clear that it was expressly adopting the rescue doctrine. The Court also adopted the firefighter’s rule, but construed it narrowly to apply only when a firefighter’s presence at a rescue scene results from the firefighter’s on-duty obligations as a firefighter. Thus off-duty professionals who volunteer to help would fall outside the rule. Accordingly, Espinoza’s claim was not barred by the firefighter’s rule. In determining whether a firefighter is acting as a result of his on-duty obligations, the Court declined to adopt any test that might turn on a firefighter’s on-scene conduct. Instead, the Court emphasized that the focus should be on why the firefighter is on the scene. In a footnote, the Court distinguished cases involving off-duty police officers, noting that the special circumstances of such cases required further analysis.
Vice Chief Justice Berch authored the unanimous opinion.
The Schulenburgs were involved in an accident on State Route 101. Espinoza, an off-duty Phoenix firefighter and emergency medical technician (“EMT”), was driving home from work when she saw the accident scene and stopped to assist. While Espinoza was reaching inside the Schulenburgs’ vehicle to turn on the emergency flashers, the vehicle was struck by another car, driven by Barnett, and Espinoza suffered serious injuries. Espinoza sued the Schulenburgs, Barnett and DPS to recover for her injuries. The superior court granted summary judgment to the Schulenburgs citing the firefighter’s rule. The court of appeals reversed, holding that the firefighter’s rule should be narrowly construed so as not to bar claims of off-duty firefighters. However, the court of appeals remanded to the trial court for a determination of whether Espinoza had a duty as part of her job as a firefighter to stop and help. The Schulenburgs appealed to the Arizona Supreme Court. The supreme court reversed the trial court’s ruling, vacated the court of appeals’ decision and remanded for trial on the merits.
Under the rescue doctrine, an injured rescuer may recover damages in tort from the person whose negligence created the need for rescue. The firefighter’s rule is an exception to the rescue doctrine and bars the rescuer from recovering if she is injured while performing her duties as a professional firefighter. The Court first made clear that it was expressly adopting the rescue doctrine. The Court also adopted the firefighter’s rule, but construed it narrowly to apply only when a firefighter’s presence at a rescue scene results from the firefighter’s on-duty obligations as a firefighter. Thus off-duty professionals who volunteer to help would fall outside the rule. Accordingly, Espinoza’s claim was not barred by the firefighter’s rule. In determining whether a firefighter is acting as a result of his on-duty obligations, the Court declined to adopt any test that might turn on a firefighter’s on-scene conduct. Instead, the Court emphasized that the focus should be on why the firefighter is on the scene. In a footnote, the Court distinguished cases involving off-duty police officers, noting that the special circumstances of such cases required further analysis.
Vice Chief Justice Berch authored the unanimous opinion.
Posted by azapp @ Wed, Mar 22, 2006
Tuesday, March 21, 2006
LaWall v. Pima County Merit Commission; and Scammon Division Two Holds That the Pima County Merit System Rules Addressing Appeals to the Merit System Commission, Which State that the Commission May Hear Appeals of Dismissals or Discipline Imposed by “Written Order,” Are Procedural in Nature Not Jurisdictional
An employee of the Pima County Attorney’s Office (PCAO), Joann Scammon, resigned from her position as a victim witness advocate before receiving a notice of intent to terminate her, which the PCAO is required to send as part of a three-part process for terminating employees, outlined in the Pima County Merit System Rules (MSR). Scammon filed an administrative appeal with the Merit System Commission (the Commission), alleging her resignation was coerced and that she had been discriminated against and constructively discharged.
The PCAO filed a motion to dismiss the appeal, asserting lack of subject matter jurisdiction. The Commission denied the motion, and continued the appeal pending the filing of the PCAO’s special action in Superior Court. The trial court ruled that the Commission lacked authority to hear Ms. Scammon’s appeal because she had never received a written notice of termination as required by the enabling statutes for the Commission. In pertinent part, these provide that: “[a]ny . . . employee . . . may be dismissed . . . by the appointing authority after appointment or promotion only by written order . . . a copy thereof shall be furnished to the person to be dismissed, suspended or reduced.” A.R.S. § 11-356(A). Further, “[t]he . . . employee may within ten days after presentation to him of the order, appeal from the order through the clerk of the commission.” A.R.S. § 11 356(B).
Reviewing de novo, the court of appeals reversed, rejecting the PCAO’s argument that because Scammon had never received a written order of termination, the Commission was without jurisdiction to hear her appeal. The court reasoned that the Commission’s jurisdiction is granted in § 11-352, which permits counties to create a merit system commission, and in § 11-354, which grants that commission the powers “necessary to carry out the provisions of this article.” To read “written order” as a jurisdictional requirement would be directly at odds with the legislative intent of the county merit system statutes, the purpose of which is to “protect employees.” 1981 Ariz. Sess. Laws, ch. 273 § 1. The written order requirement is nothing more than a procedural burden on the employer, not a jurisdictional limit on the merit or civil service commission.
Judge Brammer, Jr. authored the opinion; Judge Eckerstrom and Judge Howard concurred.
An employee of the Pima County Attorney’s Office (PCAO), Joann Scammon, resigned from her position as a victim witness advocate before receiving a notice of intent to terminate her, which the PCAO is required to send as part of a three-part process for terminating employees, outlined in the Pima County Merit System Rules (MSR). Scammon filed an administrative appeal with the Merit System Commission (the Commission), alleging her resignation was coerced and that she had been discriminated against and constructively discharged.
The PCAO filed a motion to dismiss the appeal, asserting lack of subject matter jurisdiction. The Commission denied the motion, and continued the appeal pending the filing of the PCAO’s special action in Superior Court. The trial court ruled that the Commission lacked authority to hear Ms. Scammon’s appeal because she had never received a written notice of termination as required by the enabling statutes for the Commission. In pertinent part, these provide that: “[a]ny . . . employee . . . may be dismissed . . . by the appointing authority after appointment or promotion only by written order . . . a copy thereof shall be furnished to the person to be dismissed, suspended or reduced.” A.R.S. § 11-356(A). Further, “[t]he . . . employee may within ten days after presentation to him of the order, appeal from the order through the clerk of the commission.” A.R.S. § 11 356(B).
Reviewing de novo, the court of appeals reversed, rejecting the PCAO’s argument that because Scammon had never received a written order of termination, the Commission was without jurisdiction to hear her appeal. The court reasoned that the Commission’s jurisdiction is granted in § 11-352, which permits counties to create a merit system commission, and in § 11-354, which grants that commission the powers “necessary to carry out the provisions of this article.” To read “written order” as a jurisdictional requirement would be directly at odds with the legislative intent of the county merit system statutes, the purpose of which is to “protect employees.” 1981 Ariz. Sess. Laws, ch. 273 § 1. The written order requirement is nothing more than a procedural burden on the employer, not a jurisdictional limit on the merit or civil service commission.
Judge Brammer, Jr. authored the opinion; Judge Eckerstrom and Judge Howard concurred.
Posted by azapp @ Tue, Mar 21, 2006
Thursday, March 16, 2006
Cornman Tweedy 560 v. City of Casa Grande: Division Two Declares Invalid Competing Petitions for Annexation of Territory in Pinal County
Casa Grande filed a petition to annex territory, accompanied by a 1997 approval from the state for annexation of some state trust lands included in the petition. Cornman filed a special action, seeking a declaratory judgment that the annexation petition exceeded the size restrictions of A.R.S. § 9-471(H)(3) and that the petition was void because Casa Grande failed to secure current approval from the state for annexation of the trust lands. Case Grande filed a special action, asking the court to declare invalid a competing petition filed by Eloy for some of the same territory that Casa Grande sought to annex. After consolidating the two actions, the court found for Casa Grande. This appeal followed.
The court of appeals affirmed in part and reversed in part. The court affirmed the trial court’s interpretation of § 9-471(H)(3), finding that the dimensions of the territory comported with the statutory requirements. The court held, however, that Casa Grande’s petition failed to comply with the statutory requirement of § 9-471(A)(1) that the city acquire valid approval from the state to include state trust lands within its proposed annexation territory. The court held that state approval of one annexation plan cannot replace the need for securing separate approval of a different annexation plan even when the same municipality seeks annexation of the same state land under both plans. Finally, the court concluded that Eloy’s competing petition violated the statutory requirement in § 9-471(A)(6) that each petition include a sworn affidavit verifying that no part of the territory is already subject to an earlier filing for annexation. Eloy had tried to qualify its affidavit by indicating that there was no “valid earlier filing,” but the court rejected this as an illegal effort to file a contingent petition. The court concluded that neither Casa Grande nor Eloy had filed a petition giving either the authority to annex the overlapping territory in question.
Judge Eckerstrom authored the opinion; Judge Espinosa concurred.
Judge Brammer concurred specially, joining the opinion regarding the validity of the state approval and the legality of Eloy’s petition, but he noted the complexity of A.R.S. § 9-471(H) and stated he did not believe that the court needed to address the statute to resolve the case.
Casa Grande filed a petition to annex territory, accompanied by a 1997 approval from the state for annexation of some state trust lands included in the petition. Cornman filed a special action, seeking a declaratory judgment that the annexation petition exceeded the size restrictions of A.R.S. § 9-471(H)(3) and that the petition was void because Casa Grande failed to secure current approval from the state for annexation of the trust lands. Case Grande filed a special action, asking the court to declare invalid a competing petition filed by Eloy for some of the same territory that Casa Grande sought to annex. After consolidating the two actions, the court found for Casa Grande. This appeal followed.
The court of appeals affirmed in part and reversed in part. The court affirmed the trial court’s interpretation of § 9-471(H)(3), finding that the dimensions of the territory comported with the statutory requirements. The court held, however, that Casa Grande’s petition failed to comply with the statutory requirement of § 9-471(A)(1) that the city acquire valid approval from the state to include state trust lands within its proposed annexation territory. The court held that state approval of one annexation plan cannot replace the need for securing separate approval of a different annexation plan even when the same municipality seeks annexation of the same state land under both plans. Finally, the court concluded that Eloy’s competing petition violated the statutory requirement in § 9-471(A)(6) that each petition include a sworn affidavit verifying that no part of the territory is already subject to an earlier filing for annexation. Eloy had tried to qualify its affidavit by indicating that there was no “valid earlier filing,” but the court rejected this as an illegal effort to file a contingent petition. The court concluded that neither Casa Grande nor Eloy had filed a petition giving either the authority to annex the overlapping territory in question.
Judge Eckerstrom authored the opinion; Judge Espinosa concurred.
Judge Brammer concurred specially, joining the opinion regarding the validity of the state approval and the legality of Eloy’s petition, but he noted the complexity of A.R.S. § 9-471(H) and stated he did not believe that the court needed to address the statute to resolve the case.
Posted by azapp @ Thu, Mar 16, 2006
Sunday, March 12, 2006
Valder Law Offices v. Keenan Law Firm: Division One Finds Common Fund Doctrine Inapplicable on the Particular Facts in a Wrongful Death Case.
Denise Robinson died in 1997 after surgery. Her son James Robinson retained attorney James Hill and Valder Law Offices (“Valder”) to prosecute claims for damages arising out of Denise’s death. Her mother retained the Keenan Law Firm (“Keenan”) for the same purpose. Valder commenced a wrongful death action on behalf of James Robinson and the other statutory beneficiaries. Both firms, working on a contingency, contributed work to the case, with Valder handling the preparation and trial of the liability aspect of the case. The jury returned a verdict of $2.4 million. Dorothy refused to pay attorney’s fees out of the verdict to Valder, whom she had never agreed would represent her. Valder commenced a declaratory judgment action to establish that Dorothy’s share of the verdict was subject to a pro rata share of the attorneys’ fees incurred, on the basis of the common fund doctrine. Keenan filed suit against Valder, alleging conversion and unjust enrichment with respect to the fees. On cross-motions for summary judgment, the trial court ruled as a matter of law that the common fund doctrine did not apply, and awarded the funds to Keenan. On appeal, Division One first noted that no categorical bar to the application of the common fund doctrine was applicable. The Court noted that the equitable doctrine applies generally to effectuate “the equitable consideration that parties who benefit from the efforts of counsel in creating a common fund should pay for their fair share of the work required to bring about that benefit.” The Court also noted, however, that the doctrine may only be applied where (1) the class of persons benefited is small and easily identifiable, (2) the benefits may be traced accurately, and (3) the costs may be shifted to those benefited with some precision. The latter two circumstances were not present, the Court noted, as it was impossible to trace the benefits with any real accuracy or to shift the costs with “precision.” The Court accordingly concluded that on the particular facts presented, the common fund doctrine was inapplicable. The Court overturned the trial court, however, on the matter of awarding Keenan attorneys’ fees pursuant to A.R.S. 12-341.01. The statute did not apply, the Court observed, because the litigation revolved around a wrongful death claim, rather than a contract claim.
The decision was authored by Judge Barker and joined by Judges Kessler and Sult.
Denise Robinson died in 1997 after surgery. Her son James Robinson retained attorney James Hill and Valder Law Offices (“Valder”) to prosecute claims for damages arising out of Denise’s death. Her mother retained the Keenan Law Firm (“Keenan”) for the same purpose. Valder commenced a wrongful death action on behalf of James Robinson and the other statutory beneficiaries. Both firms, working on a contingency, contributed work to the case, with Valder handling the preparation and trial of the liability aspect of the case. The jury returned a verdict of $2.4 million. Dorothy refused to pay attorney’s fees out of the verdict to Valder, whom she had never agreed would represent her. Valder commenced a declaratory judgment action to establish that Dorothy’s share of the verdict was subject to a pro rata share of the attorneys’ fees incurred, on the basis of the common fund doctrine. Keenan filed suit against Valder, alleging conversion and unjust enrichment with respect to the fees. On cross-motions for summary judgment, the trial court ruled as a matter of law that the common fund doctrine did not apply, and awarded the funds to Keenan. On appeal, Division One first noted that no categorical bar to the application of the common fund doctrine was applicable. The Court noted that the equitable doctrine applies generally to effectuate “the equitable consideration that parties who benefit from the efforts of counsel in creating a common fund should pay for their fair share of the work required to bring about that benefit.” The Court also noted, however, that the doctrine may only be applied where (1) the class of persons benefited is small and easily identifiable, (2) the benefits may be traced accurately, and (3) the costs may be shifted to those benefited with some precision. The latter two circumstances were not present, the Court noted, as it was impossible to trace the benefits with any real accuracy or to shift the costs with “precision.” The Court accordingly concluded that on the particular facts presented, the common fund doctrine was inapplicable. The Court overturned the trial court, however, on the matter of awarding Keenan attorneys’ fees pursuant to A.R.S. 12-341.01. The statute did not apply, the Court observed, because the litigation revolved around a wrongful death claim, rather than a contract claim.
The decision was authored by Judge Barker and joined by Judges Kessler and Sult.
Posted by azapp @ Sun, Mar 12, 2006
Tuesday, March 7, 2006
Gibson v. Kasey Division One Reverses Grant of Summary Judgment in Favor of Defendant in Wrongful Death Action on Issues of Duty and Proximate Cause
Plaintiff, a surviving parent of decedent Nathan Followill, brought a wrongful death action against defendant Larry Kasey, alleging that Kasey negligently caused Followill’s death by furnishing prescription Oxycontin pills to Followill. During a party, Kasey had given Followill’s girlfriend, Sandy Watters, eight Oxycontin pills consisting of two different strengths. Followill later took the pills from Watters and ingested some of the pills. During the same evening, Kasey served alcohol to Followill which Followill drank. Followill died in his sleep the same night from “acute combined toxicity of alcohol and Oxycodone.” The trial court granted summary judgment to Kasey, finding as a matter of law that Kasey owed no duty to Followill and that intervening acts cut off Kasey’s liability.
Reviewing the question of legal duty de novo, Division One reversed the grant of summary judgment on the issue of duty, noting that “the duty [if it exists] – is always the same – to conform to the legal standard of reasonable conduct in light of the apparent risk.” The court concluded that a duty was present because of the totality of the circumstances; in particular, the relationship between Kasey and Followill, the foreseeability of harm to a foreseeable victim as a result of Kasey giving eight pills to Watters, and the existence of statutes making it unlawful to furnish one’s prescription drugs to another person not covered by the prescription.
As to the first factor, the court noted that Kasey and Followill were co-workers and friends who had socialized previously, that Followill had previously asked Kasey for pills, and that Kasey knew Followill and Watters were dating. Regarding foreseeability, the court observed that Kasey knew the pills were not prescribed for anyone else and knew that they could be dangerous if taken in overdose or in combination with alcohol, thus it was foreseeable to Kasey that some of the eight pills he gave to Watters might be given by her to Followill and thereafter consumed by Followill. Finally, the court cited several Arizona statutes, both civil and criminal, as well as the federal Controlled Substances Act, which make it unlawful to a person to furnish his prescription drugs to another.
The court also reversed on the issue of proximate cause. The trial court found two superceding acts broke the chain of proximate cause -- Watters’ act of giving the pills to Followill, or Followill’s act of ingesting the pills along with alcohol. The appellate court disagreed, noting that on the record, reasonable jurors could differ on the issue of superceding cause; specifically, whether “the intervening force was unforeseeable and may be described, with the benefit of hindsight, as extraordinary.”
Judge Gemmill authored the opinion; Judge Winthrop, and Judge Pro Tempore Arrellano concurred.
Plaintiff, a surviving parent of decedent Nathan Followill, brought a wrongful death action against defendant Larry Kasey, alleging that Kasey negligently caused Followill’s death by furnishing prescription Oxycontin pills to Followill. During a party, Kasey had given Followill’s girlfriend, Sandy Watters, eight Oxycontin pills consisting of two different strengths. Followill later took the pills from Watters and ingested some of the pills. During the same evening, Kasey served alcohol to Followill which Followill drank. Followill died in his sleep the same night from “acute combined toxicity of alcohol and Oxycodone.” The trial court granted summary judgment to Kasey, finding as a matter of law that Kasey owed no duty to Followill and that intervening acts cut off Kasey’s liability.
Reviewing the question of legal duty de novo, Division One reversed the grant of summary judgment on the issue of duty, noting that “the duty [if it exists] – is always the same – to conform to the legal standard of reasonable conduct in light of the apparent risk.” The court concluded that a duty was present because of the totality of the circumstances; in particular, the relationship between Kasey and Followill, the foreseeability of harm to a foreseeable victim as a result of Kasey giving eight pills to Watters, and the existence of statutes making it unlawful to furnish one’s prescription drugs to another person not covered by the prescription.
As to the first factor, the court noted that Kasey and Followill were co-workers and friends who had socialized previously, that Followill had previously asked Kasey for pills, and that Kasey knew Followill and Watters were dating. Regarding foreseeability, the court observed that Kasey knew the pills were not prescribed for anyone else and knew that they could be dangerous if taken in overdose or in combination with alcohol, thus it was foreseeable to Kasey that some of the eight pills he gave to Watters might be given by her to Followill and thereafter consumed by Followill. Finally, the court cited several Arizona statutes, both civil and criminal, as well as the federal Controlled Substances Act, which make it unlawful to a person to furnish his prescription drugs to another.
The court also reversed on the issue of proximate cause. The trial court found two superceding acts broke the chain of proximate cause -- Watters’ act of giving the pills to Followill, or Followill’s act of ingesting the pills along with alcohol. The appellate court disagreed, noting that on the record, reasonable jurors could differ on the issue of superceding cause; specifically, whether “the intervening force was unforeseeable and may be described, with the benefit of hindsight, as extraordinary.”
Judge Gemmill authored the opinion; Judge Winthrop, and Judge Pro Tempore Arrellano concurred.
Posted by azapp @ Tue, Mar 7, 2006
Monday, March 6, 2006
Slade v. Superior Court: Division One Holds That, Despite Confidentiality Statute, Arizona Corporation Commission Must Disclose Case File of Expert Witness and Names of Witnesses Referred to in Fact Investigator’s Filed Affidavit
Defendants in a securities fraud action brought by the Arizona Corporation Commission (the “Commission”) sought to discover information regarding the identities of investors who had made allegations against them, and information and documents gathered by the Commission’s accountant and investigator. The accountant and investigator had each provided an affidavit filed by the Commission in an ex parte application for a Temporary Restraining Order. The trial court ordered disclosure of all communications to the accountant, regardless of otherwise applicable work-product or attorney-client privilege protections, because the Commission had designated him as an expert witness. The trial court ordered a limited deposition of the fact investigator and required disclosure of the accountant’s notes regarding only those investors already identified.
The court of appeals granted special action jurisdiction to review the trial court’s decision in light of A.R.S. § 44-2042(A) (the “Confidentiality Statute”), which protects the confidentiality of information obtained during an investigation by the Commission “unless the names, information or documents are made a matter of public record.” The appellate court held that, because of his designation as an expert witness, the accountant’s entire case file was discoverable notwithstanding the Confidentiality Statute, except for any items that could be shown to not relate to the subject matter of the accountant’s testimony. See Emergency Care Dynamics, Ltd. v. Super. Ct., 188 Ariz. 32, 33, 932 P.2d 297, 298 (App. 1997) (finding loss of work-product protection for communications with expert witness). Because the investigator was not a testifying expert witness, however, materials in his case file retained work-product immunity.
The trial court erred, however, by limiting discovery to the names of investors already disclosed. Because the investigator’s affidavit referred to allegations regarding groups of un-named investors, thereby making the information a “matter of public record” under the Confidentiality Statute, the Commission was required to disclose the names of all investors referred to in the affidavit, and any materials upon which the investigator relied in compiling or assessing the information disclosed in the affidavit.
Judge Orozco wrote the opinion for the panel; Judge Snow and Judge Irvine concurred.
Defendants in a securities fraud action brought by the Arizona Corporation Commission (the “Commission”) sought to discover information regarding the identities of investors who had made allegations against them, and information and documents gathered by the Commission’s accountant and investigator. The accountant and investigator had each provided an affidavit filed by the Commission in an ex parte application for a Temporary Restraining Order. The trial court ordered disclosure of all communications to the accountant, regardless of otherwise applicable work-product or attorney-client privilege protections, because the Commission had designated him as an expert witness. The trial court ordered a limited deposition of the fact investigator and required disclosure of the accountant’s notes regarding only those investors already identified.
The court of appeals granted special action jurisdiction to review the trial court’s decision in light of A.R.S. § 44-2042(A) (the “Confidentiality Statute”), which protects the confidentiality of information obtained during an investigation by the Commission “unless the names, information or documents are made a matter of public record.” The appellate court held that, because of his designation as an expert witness, the accountant’s entire case file was discoverable notwithstanding the Confidentiality Statute, except for any items that could be shown to not relate to the subject matter of the accountant’s testimony. See Emergency Care Dynamics, Ltd. v. Super. Ct., 188 Ariz. 32, 33, 932 P.2d 297, 298 (App. 1997) (finding loss of work-product protection for communications with expert witness). Because the investigator was not a testifying expert witness, however, materials in his case file retained work-product immunity.
The trial court erred, however, by limiting discovery to the names of investors already disclosed. Because the investigator’s affidavit referred to allegations regarding groups of un-named investors, thereby making the information a “matter of public record” under the Confidentiality Statute, the Commission was required to disclose the names of all investors referred to in the affidavit, and any materials upon which the investigator relied in compiling or assessing the information disclosed in the affidavit.
Judge Orozco wrote the opinion for the panel; Judge Snow and Judge Irvine concurred.
Posted by azapp @ Mon, Mar 6, 2006
Thursday, March 2, 2006
Lopez v. Safeway Stores, Inc.: Division Two Holds That the Collateral Source Rule Applies to the Full Amount of Charged Reasonable Medical Expenses Without Any Deduction for Amounts Written Off by Healthcare Providers in the Context of a Negligence Slip and Fall Case
Plaintiff/Appellee Lydia Lopez sued Safeway Stores in connection with a slip and fall accident at a Safeway store. Over Safeway’s objection made in a pre-trial motion in limine, the trial court allowed Lopez to present evidence of her total medical bills, most of which the medical providers had adjusted. The Court held that the collateral source rule applies to Lopez’ claim for medical expenses that apparently were charged to her but which neither she nor her medical insurance carriers had to pay. The Court engaged in a lengthy analysis of the collateral source rule, distinguished Anderson v. Muniz, 21 Ariz. App. 25, 515 P.2d 52 (1973), considered apparently conflicting provisions of the Restatement of Torts (Sections 911, 920A and 924), and discussed the pertinent law from other states. The Court sided with the majority of courts that have concluded that plaintiffs are entitled to claim and recover the full amount of reasonable medical expenses charged, based on the reasonable value of medical services rendered, including amounts written off from the bills pursuant to contractual rate reductions.
The Court also rejected several procedural arguments advanced by Safeway, including that Lopez’ failure to order a transcript precluded the Court of Appeals from reviewing the trial court’s evidentiary ruling. The Court explained that the issue raised was a purely legal one subject to de novo review. The Court affirmed the trial court’s ruling on the pre-trial motion in limine, and found that the trial court did not abuse its discretion in denying Safeway’s motion for new trial based on the same pre-trial evidentiary ruling.
Judge Pelander authored the decision in which Judges Espinosa and Druke (retired) concurred.
Plaintiff/Appellee Lydia Lopez sued Safeway Stores in connection with a slip and fall accident at a Safeway store. Over Safeway’s objection made in a pre-trial motion in limine, the trial court allowed Lopez to present evidence of her total medical bills, most of which the medical providers had adjusted. The Court held that the collateral source rule applies to Lopez’ claim for medical expenses that apparently were charged to her but which neither she nor her medical insurance carriers had to pay. The Court engaged in a lengthy analysis of the collateral source rule, distinguished Anderson v. Muniz, 21 Ariz. App. 25, 515 P.2d 52 (1973), considered apparently conflicting provisions of the Restatement of Torts (Sections 911, 920A and 924), and discussed the pertinent law from other states. The Court sided with the majority of courts that have concluded that plaintiffs are entitled to claim and recover the full amount of reasonable medical expenses charged, based on the reasonable value of medical services rendered, including amounts written off from the bills pursuant to contractual rate reductions.
The Court also rejected several procedural arguments advanced by Safeway, including that Lopez’ failure to order a transcript precluded the Court of Appeals from reviewing the trial court’s evidentiary ruling. The Court explained that the issue raised was a purely legal one subject to de novo review. The Court affirmed the trial court’s ruling on the pre-trial motion in limine, and found that the trial court did not abuse its discretion in denying Safeway’s motion for new trial based on the same pre-trial evidentiary ruling.
Judge Pelander authored the decision in which Judges Espinosa and Druke (retired) concurred.
Posted by azapp @ Thu, Mar 2, 2006
Filer v. Tohono O’odham Nation Gaming Enter: Division Two Holds That, Though It Finds The Issue A “Close One,” Tribal Sovereign Immunity Bars Dram Shop Suits Under A.R.S. § 4-311 In Arizona State Courts.
Gary Filer filed suit against the Tohono O’odham Nation Gaming Enterprise, doing business as Desert Diamond Casino, and several of its employees, in Arizona state court. Filer alleged that the casino served Douglas Michael Leviski excessive amounts of alcohol, which ultimately caused Leviski to crash his automobile into Filer’s automobile. The collision injured Filer and killed his wife. He sued the casino under Arizona’s dram shop liability statute. A.R.S. § 4-311. The trial court dismissed the action because tribal sovereign immunity barred the suit in state court.
Division Two of the Arizona Court of Appeals affirmed. It concluded that the state had power, through congressional action, to regulate tribal liquor licensees’ serving of alcohol to intoxicated patrons. See 18 U.S.C. § 1161; A.R.S. §§ 4-244(14), 4-311. The court held, however, that the valid regulation cannot be enforced through private suit in state court in the absence of a tribal waiver of immunity. It noted that the state’s ability to regulate and its means to enforce regulations are not coextensive. On the record before it, the court concluded that the federal policies underlying the immunity doctrine, such as tribal autonomy and preservation of tribal assets, were not offended by applying tribal immunity. See Dixon v. Picopa Constr. Co., 160 Ariz. 251, 772 P.2d 1104 (1989). Citing Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998) and Rice v. Rehner, 463 U.S. 713 (1983), the court did note that the issue was a “close one,” and it questioned the propriety of the immunity doctrine in modern commerce. Nevertheless, because it was undisputed that the tribe had not waived its immunity, the court affirmed the trial court’s dismissal of Filer’s suit.
The court applied the same immunity to the individual employees of the casino. It noted that, at least in Arizona and the Ninth Circuit, sovereign immunity applies “to tribal employees as long as their misconduct occurred while they were acting in their official capacity and within the scope of their authority.” See Linneen v. Gila River Indian Cmty., 276 F.3d 489 (9th Cir. 2002); Snow v. Quinault Indian Nation, 709 F.2d 1319 (9th Cir. 1983). There was nothing in the record that suggested that the bartenders or other employees were not acting within their official capacity and scope of authority. Consequently, the employees enjoyed the same immunity.
Chief Judge Pelander authored the unanimous opinion.
Gary Filer filed suit against the Tohono O’odham Nation Gaming Enterprise, doing business as Desert Diamond Casino, and several of its employees, in Arizona state court. Filer alleged that the casino served Douglas Michael Leviski excessive amounts of alcohol, which ultimately caused Leviski to crash his automobile into Filer’s automobile. The collision injured Filer and killed his wife. He sued the casino under Arizona’s dram shop liability statute. A.R.S. § 4-311. The trial court dismissed the action because tribal sovereign immunity barred the suit in state court.
Division Two of the Arizona Court of Appeals affirmed. It concluded that the state had power, through congressional action, to regulate tribal liquor licensees’ serving of alcohol to intoxicated patrons. See 18 U.S.C. § 1161; A.R.S. §§ 4-244(14), 4-311. The court held, however, that the valid regulation cannot be enforced through private suit in state court in the absence of a tribal waiver of immunity. It noted that the state’s ability to regulate and its means to enforce regulations are not coextensive. On the record before it, the court concluded that the federal policies underlying the immunity doctrine, such as tribal autonomy and preservation of tribal assets, were not offended by applying tribal immunity. See Dixon v. Picopa Constr. Co., 160 Ariz. 251, 772 P.2d 1104 (1989). Citing Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998) and Rice v. Rehner, 463 U.S. 713 (1983), the court did note that the issue was a “close one,” and it questioned the propriety of the immunity doctrine in modern commerce. Nevertheless, because it was undisputed that the tribe had not waived its immunity, the court affirmed the trial court’s dismissal of Filer’s suit.
The court applied the same immunity to the individual employees of the casino. It noted that, at least in Arizona and the Ninth Circuit, sovereign immunity applies “to tribal employees as long as their misconduct occurred while they were acting in their official capacity and within the scope of their authority.” See Linneen v. Gila River Indian Cmty., 276 F.3d 489 (9th Cir. 2002); Snow v. Quinault Indian Nation, 709 F.2d 1319 (9th Cir. 1983). There was nothing in the record that suggested that the bartenders or other employees were not acting within their official capacity and scope of authority. Consequently, the employees enjoyed the same immunity.
Chief Judge Pelander authored the unanimous opinion.
Posted by azapp @ Thu, Mar 2, 2006
Foster v. Weir: Division Two Holds That Recoverable “Taxable Costs” for Expert Witness Fees in Medical Malpractice Claims are Limited to Those Fees Incurred for an Expert Witness’s Actual Attendance at Trial
The trial court awarded appellees expert fees in a medical malpractice case, including compensation for time an expert spent reviewing the case file, time spent with Appellee’s attorney, and his 3.5 hours of trial testimony. The trial court declined to award expert fees for additional time the expert spent in trial preparation following a settlement conference. Both parties appealed the propriety and reasonableness of the trial court’s award of expert witness fees under Rule 54(f)(2). Reading Rule 54(f)(2) in conjunction with A.R.S. § 12-332, the court of appeals concluded that Rule 54(f)(2) encompasses as a taxable cost only those fees incurred for an expert’s actual attendance at trial to testify. The additional expenses incurred to retain and prepare an expert witness for trial are not recoverable under the rule. Given this reading of Rule 54(f)(2), the court found that the trial court abused its discretion when it taxed Appellant some of the fees charged by the expert witness in preparing for his trial testimony and his travel expenses from California.
Judge Eckerstrom wrote the opinion; Judges Brammer and Howard concurred.
The trial court awarded appellees expert fees in a medical malpractice case, including compensation for time an expert spent reviewing the case file, time spent with Appellee’s attorney, and his 3.5 hours of trial testimony. The trial court declined to award expert fees for additional time the expert spent in trial preparation following a settlement conference. Both parties appealed the propriety and reasonableness of the trial court’s award of expert witness fees under Rule 54(f)(2). Reading Rule 54(f)(2) in conjunction with A.R.S. § 12-332, the court of appeals concluded that Rule 54(f)(2) encompasses as a taxable cost only those fees incurred for an expert’s actual attendance at trial to testify. The additional expenses incurred to retain and prepare an expert witness for trial are not recoverable under the rule. Given this reading of Rule 54(f)(2), the court found that the trial court abused its discretion when it taxed Appellant some of the fees charged by the expert witness in preparing for his trial testimony and his travel expenses from California.
Judge Eckerstrom wrote the opinion; Judges Brammer and Howard concurred.
Posted by azapp @ Thu, Mar 2, 2006
