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Tumacacori Mission Land Devt. v. Union Pacific Railroad (CA2 1/30/13)

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This res judicata case could have been short, clear, and helpful.

Tumacacori sued to establish a prescriptive easement over a Union Pacific line. UP moved for summary judgment. The trial court granted it and the Court of Appeals affirmed. After that Tumacacori moved to amend its Complaint to assert other easement theories. The trial court denied the motion; Tumacacori appealed.

The Court of Appeals affirms. It is black-letter law that a final judgment makes all claims that were or could have been brought res judicata. Tumacacori tried to argue that res judicata doesn’t apply in equity, which the court dismisses easily.

But the court doesn’t seem to feel that that’s quite enough so it adds other things, none of which are useful.

For example, the court points out that Tumacacori did not file a Rule 60(c) motion. But what difference would that have made? On what basis could the trial judge possibly have granted that motion? Its true that setting aside the judgment can be a way around res judicata but that isn’t the court’s point – it mentions 60(c) “preliminarily,” before even starting its res judicata analysis. So what is the court’s point? Goodness knows.

Tumacacori argued that the judgment was on the issue of prescriptive easement. The court points out that UP’s summary-judgment motion also dealt with easements by implied necessity. But so what? The court admits that its opinion in the first appeal talked about prescriptive easements. The point of res judicata – i.e., the point of this case – is that it doesn’t matter what was actually argued since everything that could have been argued is also concluded.

UP used the term “res judicata.” The court includes a footnote to say “We use the more modern term ‘claim preclusion’ instead of res judicata.” The court is apparently proud of that, which is depressing. The movement by law professors to replace the established terms “res judicata” and “collateral estoppel” with the the bland and confusing “claim preclusion” and “issue preclusion” – which are less, not more, descriptive of the concepts – has been followed in the practice largely by those whose grasp of what any of them means is sometimes less than clear. We wish the courts could be prouder of knowledge than of modernity.

(link to opinion)

Waltner v. JPMorgan Chase (CA1 1/29/13)

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Did you know that a defendant can move for summary judgment before filing an Answer?

Plaintiffs sued a bank to prevent foreclosure. The bank moved to dismiss; the trial court dismissed most of the Complaint’s 36 counts but not all of them. The bank did not file an Answer within twenty days of that ruling; instead it moved for summary judgment on the remaining counts. Plaintiffs applied for default. The trial court denied default and granted summary judgment

Plaintiffs argued that under Rule 12 a summary judgment does not extend the time to answer. The Court of Appeals affirms the trial court for two reasons.

First, “Rule 55(a) governs defaults, not Rule 12.” Rule 55 allows default when a defendant does not “plead or otherwise defend.” A summary judgment motion is not a pleading but qualifies as otherwise defending.

Second, “even if Rule 12 were relevant” summary judgment does indeed extend the time to answer. How? Because a motion to dismiss extends the time and can be converted to summary judgment. So, says the court (and manages to find some commentators on federal law to agree with it), there’s no reason not to treat a motion originally brought for summary judgment the same way.

The court seems to think it straightforward that a Rule 56 motion is a Rule 12 motion because a rule 12 motion can under some circumstances become a Rule 56 motion. One wonders why, if that’s what Rule 12 means, it doesn’t say so. Perhaps its drafters paid some attention to the structure of the procedures they were drafting, or perhaps they had in mind the complications – both procedural and substantive – that can arise from allowing pre-Answer summary judgment. In any event, it has now been allowed.

(link to opinion)

Bowen Productions v. Evans & Southerland/French (CA1 1/24/13)

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This little special action may seem unimportant but we think it a useful reminder of something.

Defendant’s Disclosure Statement attached an expert’s report explaining why a non-party was at fault. Defendant then filed its Notice of Non-Party at Fault; the Court of Appeals says it only “cursorily” described the non-party’s fault (though it was more extensive than many non-party notices we’ve seen and probably more than a few we’ve written). Defendant later disclosed another report from another expert again detailing the non-party’s fault.

Plaintiff then moved to strike the notice because it hadn’t sufficiently described the non-party’s fault. The trial court granted the motion. Defendant took special action.

Is anyone in doubt of the result? Jurisdiction accepted, relief granted. “When a notice specifically identifies a non-party at fault, and timely disclosures explain the factual basis for the allegation of fault, the documents must be read together.”

You may wonder how a trial judge with any concept of civil discovery could grant such a motion. That’s the reminder: many don’t have any (although we don’t mean to draw conclusions about this particular judge). The trial bench is filling up with people whose sole or primary practice experience (to the extent they had much at all) was with criminal law. Expect more of this sort of ruling.

(link to opinion)