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Stout v. Justice Court/State (CA1 10/17/13)

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Another stumble on the way to electronic nirvana.

Stout pled guilty to a misdemeanor in the Justice Court. After sentencing he moved for Rule 32 post-conviction relief. To support this he requested transcripts of some hearings; Rule 32 says he “may request . . . that certified transcripts be prepared.” But Rule 7 of the Superior Court appellate criminal rules says that the “record on appeal” is a “recording or certified transcript . . . , as the Superior Court may require.” The Justice Court, and then on special action the Superior Court, told Stout he could have recordings but not transcripts.

The Court of Appeals reverses, holding that Stout can have transcripts.

As usual nowadays Stout mistimed his appeal, so as usual nowadays the court has to include a paragraph explaining why it can hear the case. This is Barassi situation, so see Baker if you’re interested in that.

The court next decides which rule applies. It takes the Occam’s Razor approach, which is helpful to the case but less so to the law: Rule 7 applies to the “appeal” record so it doesn’t apply here because a Rule 32 proceeding isn’t an “appeal.”

There can, then, be a difference between the record for some purposes and the record for others. That way lies chaos.

Next, the court decides that it has to decide whether the word “transcript” doesn’t really mean “recording” as well.  (The State didn’t make that argument; it didn’t file a brief.) That this didn’t go without saying is ominous; if words in the rules mean whatever an appellate court says, however plain they are, then there are no rules.

But in this case the court couldn’t quite mange to call black white. Dictionaries tell it that a transcript is written or printed. In addition, though, the court tells us that “the Supreme Court has recognized a difference between transcripts and electronic recordings by distinguishing between them”: ARCAP 11 says “transcript,” Rule 7 says “recording.” Well, yeah, but whether the distinction indeed makes a difference is what the Court of Appeals told us it had to decide; if there’s a distinction between rules 7 and 11, why wonder if there’s a distinction between rules 7 and 32?

The court acknowledges that giving special privilege to people who pled guilty in the Justice Court is silly but under the existing rules this is surely the correct result.

The court takes care, though, to make obeisance to the zeitgeist. In a long paragraph it explains to us that recordings are just as good as transcripts and that they don’t prejudice anybody and that – in a passage sure to bring a gleam to the eyes of the judicial-branch bureaucrats who nowadays rule the law and our profession – they save money.

(link to opinion)

Rogers v. Arizona Board of Regents (CA2 10/1/13)

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“This appeal requires us to determine when a quiet title action for an easement by implication accrues pursuant to A.R.S. 12-821.” If that doesn’t sound as fascinating to you as it does to us then that means you have a life. But whoever wrote this opinion may have too much of one.

The opinion’s statement of the facts is not crystal clear but the bottom line is that the U of A’s experimental farm in Pinal County put up a gate that blocked a nearby landowner from using a road he claimed an easement over. The parties sued each other for declaratory judgment and to quiet title; the landowner added a trespass count. The trial court ruled for the ABOR; the landowner (or, rather, by this time, the successor trustee of his estate) appealed.

The Court of Appeals affirms. The opinion spends some time reciting basics about the law of easements; as often happens in these things, its author seems to have found the subject an exotic and complicated novelty. (That might be true also of “fee simple,” which the opinion throws in a footnote to explain. Its never clear, actually, that the opinion knows greatly more about real-property law than someone read in the hornbook it repeatedly cites.)

The opinion then makes the point that the statute of limitations applies to an action that asserts an interest in someone else’s property, though not to one that seeks merely to quiet title to one’s own. But it goes on and on about this and eventually decides, based on one Utah case, that the former is not  a “true” quiet title action. There may be a basis for this in common-law theory but it will come as a surprise to those who’ve actually practiced Arizona law. It will also surprise those who’ve read the first seven pages of the opinion, in the course of which we’re told that a) an easement is an interest in real property and b) under our statute (12-1101) a quiet-title action can be brought by one who claims an interest in real property. Finally, just in case we’ve left anyone out, it will surprise those who read the next page of the opinion, which admits that quiet-title relief can be granted to one who proves an easement by implication.

Why does the court do this?  Because, having told us in the first paragraph that the issue is when a quiet-title action accrues, halfway through the opinion it changes its mind and says that the issue is “when [the] declaratory judgment claim began to accrue.” Apparently that’s because in the court’s mind this isn’t a “real” quiet-title action but just a DJ.

The statute against the State is one year (that’s 12-821). The gate went up in early 2008; the landowner complained about it, demanded a quitclaim deed for the easement, and threatened suit in September 2008; but he didn’t file until December 2009. So the claim is barred.

On the trespass claim the argument was that it was continuing, i.e., that a new claim arose every time the gate was closed. The court says that it needn’t address that because you can’t have a trespass claim without a property right and the action to establish that right is barred by limitations.

The landowner made a couple of other arguments but we pass over them as they are unenlightening and seem kind of silly.

(link to opinion)

DeLong v. Merrill (CA2 9/27/13)

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This discusses the withdrawal of an admission made under Rule 36.

After the defendant failed to answer a Request for Admissions the plaintiff moved for summary judgment. The defendant then answered the Request, raising question of fact, and arguing that the delay did not prejudice the plaintiff. The trial court disagreed and granted summary judgment. The defendant appealed.

The plaintiff did not file a brief or an appearance in the Court of Appeals. The court specifically finds that this was a confession of reversible error. So why not just say that and reverse in a memorandum? Once upon a time courts avoided making law in cases like this. In any event, the Court of Appeals reverses, finding an abuse of discretion.

The end of the opinion says some useful things, based on actual Arizona authority: summary judgment should not be used as a sanction (which is what the opinion says was done here, though that’s not entirely clear), nor should default judgment.

But the bulk of the opinion discusses the Rule 36 issue, which it indicates is one of first impression.

Under Rule 36 admissions can be withdrawn or amended when “presentation of the merits will be subserved” and the propounding party can show prejudice. Citing some federal cases (it says there is no Arizona authority), the court says that it is an abuse of discretion not to consider both factors. Why a trial court must consider both when either can be dispositive the opinion does not say.

Regarding the presentation of the merits, the summary judgment foreclosed some of the defendant’s counterclaims. Therefore, the court says, granting the plaintiff relief would have promoted the presentation of the merits. But by what logic do we distinguish between a ruling based on an admission and the legal consequences of that ruling? At what point, and on what basis, do we say that an admission shouldn’t be allowed to support summary judgment because the judgment would have too much legal effect? Is it seriously now the law that you can be stuck with your admissions unless you filed a counterclaim?

On the prejudice issue the plaintiff had argued delay. The court says that under Rule 36 prejudice is the difficulty you could face in presenting your case if your opponent is allowed to retract an admission. It isn’t delay – or, as as the court carefully phrases it, “failure to meet a deadline” (keep that in mind for future use: responding to discovery eight months late and only in response to a dispositive motion is now “failure to meet a deadline”). But what about the Arizona cases saying that prejudice is indeed about things like delay? Since when can you get relief on a motion based on a discovery lapse unless you complain of delay? And if you’re going to put those cases aside and create a Rule-36-only species of prejudice don’t you at least explain that that’s what you’re dong?

Why is this happening? Because this was a tough situation. The defendant’s lawyer thought he responded to the Request but the response got lost in his file. As a result the defendant might lose her house to a claim that the Court of Appeals – as it tells us by reciting some facts extraneous to any issue in the opinion – thinks dicey. And the delay argument was iffy; a different trial court, on a different day, might have exercised its discretion differently.

All the more reason to avoid addressing the details of Rule 36, which the court could perfectly well have done, rather than to tell a trial judge that he abused his discretion when what he probably did was to pay attention to the law of Arizona, rather than to the federal cases now preferred by the Court of Appeals, and to the plaintiff’s arguments, which the Court of Appeals didn’t have to bother reading or considering.

(link to opinion)