We normally wouldn’t blog an opinion about forcible entry and detainer but this one is so depressing that we couldn’t resist sharing it with you.

At a trustee’s sale Arizona Real Estate bought a house that Schrader refused to leave. It filed an FED action and served Schrader by “post-and-mail,” i.e., posting the process in a “conspicuous place” and sending him copies by certified mail. After it obtained judgment against Schrader he appeal, arguing improper service.

There are two types of FED – an FED action under 12-1171ff and a ”special detainer action” under 33-1377 (used to evict renters). Rule 5(f) of the Rules of Procedure for Eviction Actions allows post-and-mail for the latter but follows Rule 4 for the former. ARE filed a 12-1171, so post-and-mail was improper.

It then argued – as, apparently, did the trial court – that the court was actually using its authority to allow for alternative methods of service. But that requires that Rule-4 service be “impracticable” (in English, “impractical”) and there was no showing that it was even attempted, much less that it couldn’t be done.

For lack of proper service, the judgment against Schrader was void. So, instead of getting possession of the house it owns the plaintiff has to start all over (and also to pay Schrader his costs for the first round).

We’re going to assume that there was a lot happening here that doesn’t meet the eye. Because, meaning no disrespect, let’s face it – FEDs just ain’t that hard. They’re one step up from uncontested default hearings. They’re either what you make your living doing a ton of – including the occasional hard one – or what you give the green associates who’ve already shown that they’re not really cut out for court. How could these people have either filed the wrong sort of case or not noticed that their process server had used the wrong method? Having been put on notice that they’d botched it, how could they litigate for a year through two levels of the judiciary rather than cut their losses and start over? What did they tell the client? And are they going to charge it for doing things right the next time?

But what really depresses us are those Rules of Procedure for Eviction Actions. Remember some time back when a special committee spent much time and effort consolidating various sets of civil rules? Like kudzu, they grow back. Eviction actions aren’t the only examples. The demands of the niche practices, based variously on vanity and ignorance, are unending; the willingness of the Supreme Court to cater to them is disappointing. Coming soon: the Rules of Civil Procedure for Changing Names.

(link to opinion)

Another notice-of-claim case.

Plaintiffs sued the State because of a one-car accident, alleging a defect in the road. The State said they hadn’t filed a notice of claim; they said they had and produced a notice of service saying they’d sent it in. The trial court dismissed the case and CA1 upheld it, saying that mailing isn’t good enough; the Supreme Court reversed, over the lengthy dissent of Justices McGregor and Berch, holding that mailing is good enough and, using the delivery rule, that whether Plaintiffs had served a notice was a question of fact.

But in a footnote the court expressly refused to say whether the question should be decided by judge or jury because the parties hadn’t raised the issue below. Someone at the court apparently had, though, because the footnote went on to cite law that the trial judge can decide jurisdictional facts but that a notice of claim issue is not jurisdictional.

So the case went back to the trial court to decide that issue, the parties citing the cases cited by the footnote. The court decided that it could decide the facts and decided them in the State’s favor, dismissing again. Plaintiffs appealed again.

Division One held that the jury must decide the question. The notice-of-claim requirement is procedural, not jurisdictional. It is an affirmative defense, not a “preliminary question” under Rule 104. The opinion agrees that the issue should be decided quickly, though, and so should be the subject of a separate trial which will, after all, “likely be no more than a one or two day jury trial.”

Well, yes, but what planet does he live on? Has he forgotten how things work down here at ground level? Call the superior court and see how soon you can get that “no more than one or two day jury trial.” The practical effect will be to expedite trial on the notice-of-claim issue not at all and to delay trial on the merits by many extra months, which is just fine by the State.

(link to opinion)

This was originally a memorandum but the court then decided to publish it. It is publishable because it points out that even Arizona courts will sometimes enforce disclaimers in contracts. It also, in passing, contains a practice pointer about how not to write a Complaint.

Elm bought a house advertised as being 3792 square feet. It turned out to be 3605 square feet. The contract said “BUYER IS AWARE THAT ANY REFERENCE TO THE SQUARE FOOTAGE OF THE PREMISES, BOTH THE REAL PROPERTY (LAND) AND IMPROVEMENTS THEREON, IS APPROXIMATE. IF SQUARE FOOTAGE IS A MATERIAL MATTER TO THE BUYER, IT MUST BE VERIFIED DURING THE INSPECTION PERIOD.” Elm hadn’t bothered to check the square footage but sued anyway, alleging everything it could think of. The trial court dismissed the case; which this opinion affirms.

On appeal, Elm argued first that the court should have considered the motion to dismiss as a motion for summary judgment since the sales contract was attached to the motion – i.e., the court had to look outside the pleadings. But a document that is “central to the claim,” even if it isn’t actually attached to the Complaint, can be considered without converting dismissal into summary judgment (see Strategic Development, which the court cites for the proposition).

In addition to breach of contract Elm had alleged bad faith, fraud, and negligence. The trial court had dismissed the tort claims under the economic loss doctrine. The Court of Appeals affirms for a different reason – the statute of limitations. Elm argued the discovery rule. But “the rule does not permit a party to hide behind its ignorance when reasonable investigation would have alerted it to the claim.” Elm’s Complaint failed to allege facts showing that it used reasonable diligence to find the problem. It said instead that Elm discovered it “within the timeframe as set forth by applicable law” – in other words, it thought about the problem but did things the lazy way. This has always been but seems increasingly to be a problem with Complaints: people forget, or never knew, that they must allege facts and that conclusions of law are surplusage and do not, technically, even require an answer.

On the contract claim Elm argued that the 3792 sf. advertisement was a warranty. The court held that the language quoted above was a disclaimer of any such warranty, that disclaimers are valid, and that a court is required to give effect to all the terms of the contract. Elm wanted to present evidence that it thought it could “verify” the square footage just by asking the seller about it. The court held that the contract was not reasonably susceptible to that interpretation since the verification language appeared in a paragraph listing the type of technical inspections that the prospective buyer could have performed on the house.

The opinion also affirms the refusal to allow Elm to amend its Complaint since that’s within the trial court’s broad discretion and since the proposed amendments would not have cured the defects.

By CA1 standards this is a nice opinion, only thirteen pages and three footnotes reasonably well-organized.

(link to opinion )