ARIZONA SUPREME COURT

In The Matter Of Jeffrey Phillips, SB-10-0036-D, 12-16-10.

Controversial opinion regarding disciplinary action involving 36 discipline claims. The Court reduced discipline against the founder and managing partner of Phillips & Associates from six months and one day (which would have required respondent to have reapplied for admission to the state bar and prove fitness by clear and convincing evidence) to six months (automatic reinstatement).

Desela v. Prescott Unified School District No. 1, CV-10-0172-PR, 1-18-11.

When a minor is injured, both the minor and the minor's parents are entitled to recover pre-majority medical expenses, but double recovery is not permitted. Thus, the passage of the parents statute of limitations did not bar the child from later including the claim for medical expense in her injury case. Pearson & Dickerson Contractors, Inc. v. Harrington, and S. A. Gerrard Co. v. Couch were overruled.

Ballesteros v. American Standard Insurance, CV-10-0026-PR, 1-20-11.

The requirement of ARS §20-259.01 to give a potential insured written notice of the right to buy UM and UIM coverage was satisfied by providing an Insurance Department-approved English-language form to a Spanish-speaking insured. The legislature would have required a Spanish language form if it intended to require an offer in Spanish, which the statute required in 1997 and which requirement was repealed in 1998. Tort law may or may not impose such a requirement, but the statute does not. The Court did not address several non-contractual claims such as bad faith, consumer fraud, breach of fiduciary duty, negligence, and negligent misrepresentation, which were not part of the appeal. The Court in its discretion denied attorney fees to the insurer.

Planning Group v. Lake Mathews Mineral Properties, CV-10-0189-PR, 1-21-11.

In deciding whether personal jurisdiction exists the test is purposeful direction of activity toward this state. Where purposeful direction is found with respect to misrepresentation claims, the court also has jurisdiction over interwoven contract claims. This case involved an alleged loan by Arizona corporations to a California venture, with repayment to be made in Arizona, and the Court found personal jurisdiction over defendants whose purposeful conduct took place in Arizona or was directed here, and dismissed defendants with no purposeful conduct in or directed to Arizona.

ARIZONA COURT OF APPEALS

Cristall v. Cristall, CV 09-0645, December 2, 2010.

A judgment creditor's affidavits of renewal of judgment filed in May 2002 and April 2007 were timely, when the affidavit was filed within 90 days preceding the expiration of 5 years from the May 1997 judgment, rather than calendaring from the date of entry of the creditor's initial filing of the judgment in December 1996. The court also held that oral argument in the trial court need not be granted despite having been properly requested.

Sleeth v. Sleeth, CV 10-0093, December 9, 2010.

The court established standards for the award of attorney fees in probate litigation, including the requirement to "undertake a cost-benefit analysis at the outset and throughout their representation to ensure that they provide needed services that further the protected person's best interests and do not waste funds or engage in excessive or unproductive activities." "If an attorney has performed services that were not needed or of corresponding value to the protected person, that cannot constitute 'reasonable' conduct deserving of "reasonable" compensation."

Dooley v. Obrien/Fencl, CV 09-0595, December 28, 2010.

A.R.S. § 12-341.01(A) does not authorize the award of attorney fees to the prevailing party in actions for breach of fiduciary duty, fraudulent conveyance, and accounting. Such claims are based on duties imposed by law, not by express or implied promises, and therefore do not arise out of a contract within the meaning of the statute.

Short v. Dewald / Short v. Sawyer, CV 08-0662/08-0773, December 28, 2010.

When a judge orders a dismissed case may be re-filed under the savings statute, ARS § 12-504(A), that order is appealable. If not appealed it is final, and the judge in the second action may not overturn the first judge's decision to grant savings statute relief.

Leflet v. Redwood, CV09-0663, January 20, 2011.

This was a construction defect class action involving multiple defendants and multiple layers of coverage. Held: an insured and its primary insurer cannot join in a Morris agreement that avoids the primary insurer's obligation to pay policy limits and passes liability in excess of those limits on to other insurers. (In this case the general contractor and its primary insurer made the deal with plaintiff before there had been any determination which subcontractors' work had contributed to plaintiff's injuries.) Also, such agreements are invalid where the parties and insurers sought to be bound by the deal are not given advance notice and an opportunity to withdraw their reservations of rights. Attorney fee awards against homeowners was vacated, however, considering that class participants were not really in control of the case or likely understood that the Morris agreement had "novel components" and that they were "embarking on a legally unsound course."

McBride v. Kieckhefer, CV09-0299, January 27, 2011.

The trial court erred in granting JMOL to defendant after jury verdict for plaintiff on limited issue whether the parties had agreed to toll the statute of limitations, because "credibility determinations and the weighing of evidence were issues to be resolved by the jury." A de novo standard applies to orders granting JMOL. But court was within its broad discretion in conditionally granting a new trial on the tolling issue if the JMOL was reversed on appeal. "When ruling on a motion for new trial, a trial court is entitled to evaluate the credibility of witnesses and weigh the evidence to determine if the verdict is against the weight of the evidence and contrary to substantial justice."

Cortez v. Avalon Care Center, 2-CA-CV 2010-0087, filed 12/22/10.

In this APSA case Avalon defended the litigation for a year and then moved to dismiss based upon the arbitration provision in its resident contract, which it claimed it had just "discovered." The Court held that Avalon had waived its right to raise the arbitration agreement, despite the public policy favoring arbitration.

Midas Greenhouses v. Global Horticultural, 2 CA-CV 2010-0073, filed 12/22/10.

The economic loss rule did not bar tort claims for damage caused by defective peat moss to plaintiff's seeds and seedlings which were planted in the peat moss, because those items were "other property."

Blair v. Burgener, 2 CA-CV 2010-0028, filed 12/29/10.

Where plaintiff made many attempts to serve process on defendant and defendant appeared to be avoiding service, the trial court's order allowing alternative service was authorized. The alternative service authorized complied with defendant's due process rights, and plaintiff adequately complied with the alternative service order. Denial of defendant's motion to set aside default was affirmed.

Lear v. State of Arizona, 2 CA-SA 2010-0074, filed 1/12/11.

A.R.S. § 12-2203 pertains to the admission of expert testimony and attempts to codify the Daubert doctrine (previously rejected by the Arizona Supreme Court). The court held the statute conflicts with Rule 702, Ariz. R. Evid., and violates the separation of power doctrine, rendering it unconstitutional.

Sigmund & Ratz v. Rea/Ascenz Friction & Brake, 1 CA-SA 10-0223, filed 2/1/11.

Arizona courts cannot exercise personal jurisdiction over residents of Missouri who have no contacts with Arizona apart from the unilateral business dealings of their spouses, since Missouri law contains no concept analogous to community liability.