Huerta v. Nelson (CA1 6/16/09)

A special-action opinion dealing with how Rule 42(f) – notice of change of judge – works in a consolidated action. This is one of those cases in which the petitioner had a good enough argument that the court felt the need to write an opinion explaining why he was wrong.

Huerta appeared in the probate of his father’s estate and changed the judge. He later sued the P.R. for converting estate assets, which action was consolidated with the probate. He then filed another change of judge. The court denied it, reasoning that he’d already had his one peremptory change.

Huerta petitioned for special action; the court took jurisdiction, denied relief, then issued this opinion explaining why.

Huerta had argued that consolidation does not “merge the cases into a single cause, or change the rights of the parties.” He argued that because that’s what Yavapai County v. Superior Court, 13 Ariz. App. 368 (1970) says. But Rule 42(f) says that “each action, whether single or consolidated, shall be treated as having only two sides.” The court ruled that the “single or consolidated” language means that “when, for whatever reason, there are multiple parties in a case, absent a showing of hostile interests within a “side” pursuant to subpart [42(f)](1)(A), there are only two “sides” and each may exercise only one peremptory change of judge.”

What this seems to say is that since Huerta’s position in the lawsuit was consistent with his position in the probate action, he was on the same “side” as himself. This suggests a rather clunky train of thought on the court’s part but the outcome and the lesson of the case are clear enough.

The opinion stains itself, though, by citing in a footnote the infamous case of Marvin Johnson, P.C. v. Myers, 184 Ariz. 98 (1995). In that case the court not only reversed seventy years of precedent but pretended that it didn’t exist, instead implying that Johnson’s lawyers were idiots – all, rumor has it, for professional and personal reasons having little  to do with the facts of the case. Its holding seems innocuous and might even be right but Marvin Johnson is a poster-child for much that can be wrong about judicial opinions. Why the court cites the case at all is mysterious, since the same footnote that does so admits that Huerta did not raise the only issue to which it might have been pertinent.