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Cristall v. Cristall (CA2 12/2/10)

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We just posted Estate of McGathy and already we have to apologize to Justice Hurwitz: his footnotes are nothing compared to what goes on in this opinion.

The parties divorced in California in 1986. Wife tried to domesticate the judgment in Yavapai County in 1996. Husband objected; the trial court overruled the objection and entered judgment. In 2007 Wife, having renewed the judgment, assigned some sort of rights under it to a collection agency. In 2009 she petitioned for supplemental proceedings. Husband responded that the judgment was void and that she was no longer the owner of it, anyway. The trial court ruled for her; he appealed.

Husband argued that the five-year period for renewal of the judgment ran from the date Wife originally filed the California judgment in Yavapai County. Wife argued that it ran from the date of the court’s order domesticating it. The Court of Appeals agreed with Wife since a foreign judgment isn’t enforceable until twenty days after filing or until an objection to it is ruled on.

Primarily in an extended footnote, the court notes Husband’s contention that there could be a long delay between the two dates, causing confusion and prejudice. The court’s answer is that the problem would be “largely resolved if constraints are placed on the period of time in which a judgment debtor may object to the filing.” It then suggests that 12-1704(c) (the slip opinion says 12-1703(c)) – the foreign judgment isn’t enforceable for twenty days – means that the other party has only twenty days to object. In other words, to solve a problem with its own ruling the court, in a footnote, makes a major change in the law and reinterprets a statute to mean something it doesn’t come close to saying but which the court wishes it said about an issue that the parties (as the opinion admits) didn’t even brief. And all of this is entirely unnecessary since this isn’t really a problem; the issue is one of statutory construction and the statutes mean what they mean even if they cause delay.

As for the assignment, Husband produced a letter from the collection agency stating that Wife had assigned her rights. Wife said that she assigned only her “collection rights,” i.e., the right to collect on her behalf the money owed her. That isn’t how collection agencies normally work in our neck of the woods but, heck, this agency was in California. Anyway, the trial judge decided that she must be right because his file didn’t mention the assignment. He then ensured that it wouldn’t by denying Husband’s motion to compel the collection agency to produce records of the assignment. The Court of Appeals concluded that the trial court’s findings were not clearly erroneous and that denying Husband’s motion was okay because “we are unable to discern” whether Husband had had a California subpoena issued for the records. There was therefore no “credible issue” regarding the assignment.

So what about the letter from the collection agency, written by an attorney? He “mischaracterized” the nature of the transfer of rights, the court says. How can you decide that he mischaracterized it unless you’ve weighed the evidence? And how can you weigh evidence to determine that there’s no need for evidence because there’s no issue to consider? Well, don’t ask us, we dunno.

Husband also argued that the trial court erred by not giving him as much oral argument as requested. But that’s not error since the Yavapai rules don’t require that he be given any.

(link to opinion)

Estate of McGathy (12/2/10)

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This probate opinion demonstrates once again the evil of footnotes.

“The issue for decision is whether, in an unsupervised administration, an order requiring nonprobate transferees to pay a pro rata share of estate taxes is appealable under § 12-2101(J).” The issue is actually whether, in an unsupervised administration, an order on a petition for instruction  — whether about taxes or anything else – is appealable under § 12-2101(J). But that would have telegraphed the result since the question almost answers itself.

McGathy’s PR petitioned the Superior Court for instructions on who should pay the taxes. The court ruled on that and included Rule 54(b) language.  An unhappy beneficiary appealed. The Court of Appeals dismissed it sua sponte, ruling that only the final decree distributing an estate is appealable, and then refused a joint motion for reconsideration. The parties filed a joint petition for review.

The Court of Appeals relied on a 1979 Arizona Supreme Court case that was almost directly on point – except that it dealt with supervised administration. Supervised administration follows the old rule that the trial court has jurisdiction until the decree of distribution. But in unsupervised administration there isn’t a decree of distribution (basically, the PR distributes and then files an accounting). When the Uniform Probate Code brought us unsupervised administration  it also changed the appeal statute to allow appeal from a “judgment, decree or order entered in any formal proceedings under title 14,” 12-2101(J). A petition for instruction is a formal proceeding and each such formal proceeding is, under the probate rules, separate. The trial court’s order on the taxes ended that formal proceeding. The order was therefore appealable.

The Supreme Court vacates the dismissal of the appeal and remands to the Court of Appeals.

It’s hard to see how the Court of Appeals got this one wrong unless it felt that the earlier case was close enough that the Supreme Court would have to make the call. (We presume that this wasn’t one of those setups designed to make some law for a niche practice since the parties needn’t in that case have bothered to ask for reconsideration.)

This is a clear, brief opinion marred only by a we-must-be-right-because-other-courts-think-so-too paragraph and, mostly, by two long footnotes near the end.

The first footnote suggests consolidation to avoid multiple appeals from multiple formal proceedings. We’re not fans of footnotes trying in advance to administer to the procedural problems the opinion will create; lawyers and trial judges can figure things out. But if this had to be done, a brief parenthetical clause could have done it better.

In the second footnote, someone either got mixed up or is trying to pull a fast one. It purports to mention – and, effectively, to overrule – some language in an earlier Court of Appeals case. But the language actually comes from the Arizona Appellate Handbook (which the footnote does at least mention, in passing, in parentheses) based on the same Supreme Court opinion that the Court of Appeals relied on. If this is a backhanded way of criticizing the Court’s own case then it should of course be done fore-handedly, so to speak. It’s not as if Justice Struckmeyer will be offended and dis-invite you to his next barbecue; he has passed to his reward. In any event, if the language – wherever it comes from  — is important enough to warn against then it is important enough to address in the body of the opinion. Surely the opinion should have said something like “the Arizona Appellate Handbook is wrong – or, at least, misleading – about this.” Especially since the Handbook still says the same thing, and has for almost thirty years.

(link to opinion)

In Re Pinal County Mental Health No. MH-201000076 (CA2 11/22/10)

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This mental-health opinion concerns an alleged conflict between statute and court rule. It comes to the right result but we’re not sure how.

This is an appeal from an involuntary commitment order. The statutes require that two physicians examine the patient before commitment; in this case one had done so in person, the other by “telemedicine.” The Supreme Court had already ruled that that isn’t good enough so in this case the state came up with a new argument: the statutes are unconstitutional because they conflict with Rules 702 and 703 governing the admission of expert testimony. This opinion holds the statues constitutional.

The opinion correctly cites Seisinger v. Siebel as the controlling precedent. Under Seisinger, if a statute and a court rule conflict then the statute prevails if the matter is substantive, the rule if it’s procedural. It’s a two-step analysis: 1) is there a conflict; if so, 2) is it substance or procedure.

But “In this case, the analyses concerning whether the statutes and rules conflict and whether the statutes are procedural or substantive are interconnected.” Why? It’s hard to know if the opinion thinks it explains that. In any event, the opinion goes on to conclude that 1) the statute and rule do not conflict and 2) the statutes establish a substantive burden of proof, as Seisigner permits. “Therefore [the statutes] . . .  are constitutional.”

The problem is that this misses Seisinger’s basic point, which is that the legislature can make procedural rules: “the legislature and this Court both have rulemaking power.” If statute and rule do not conflict then whether the issue is substantive or procedural doesn’t matter. It is reasonable to say “they don’t conflict and even if they did it’s substantive” but that isn’t what this opinion says. It says that the statue is constitutional because it doesn’t conflict and it’s substantive. The permutations of that formulation are incoherent.

(link to opinion)