THIS CASE WAS AFFIRMED ON REVIEW

Domestic-relations opinions are rarely published but this one discusses a point of appellate jurisdiction. Mostly the dissent does.

Husband and Wife both filed notices of appeal while husband’s Motion for New Trial was still pending. Appeals filed after the motion has been ruled on are technically premature but the courts let them pass (Barassi). This case holds that the appellate court has no jurisdiction when the motion is still pending, following an Arizona Supreme Court case (Smith v. Arizona Citizens).

Wife argued that because she did not file the motion her appeal should be proper, citing a 2000 Division One opinion (Performance Funding) which made that distinction. But Smith cast doubt on that in 2006 (“appellate courts should dismiss a case for lack of jurisdiction while [a time-extending] motion was still pending”) and last year another Division One opinion (Engel) discussed exactly the same issue and decided that Smith controls.

The dissent argues that there is a “tension” between Smith and Performance Funding, which there is if you ignore Engel and in addition assume that Supreme Court opinions inconsistent with earlier Court of Appeals opinions create tension rather than law.

After eight pages of analysis that cannot be called sophisticated, the dissent announces “I dissent for two reasons.” First, it should not make a difference who filed the motion. That’s not a dissent to this case, though – that’s what this case holds. Second, Engel came after the Craigs filed their notices of appeal, at which time Performance Funding “had not been overruled, questioned, or vacated.”  Except, of course, by Smith, two years before. But the dissent says that that was dictum and so Wife should have been able to, well, ignore it. This must mean, though the dissent doesn’t say it this way (but comes startlingly close), that the Court of Appeals waived its lack of jurisdiction by not issuing Engel before Craig was filed and that there has to be a case that comes before since it’s just not fair if the law of a case affects the parties to it.

The dissent would allow Husband’s appeal, too, on the theory that he just filed it because she did, under ARCAP 9(a) (cross-appeal within twenty days of appeal), and that therefore his compliance with the rule “trumps the fact” of the court’s jurisdiction.

(Keep in mind that no case has ever said that filing a notice of appeal before the entry of judgment is the right thing to do and that if Husband thought he was being forced to file a premature notice then he should have filed another one after the entry of judgment and that Wife should have done so, too, and that reading a few cases to figure out what the law was would have told them this.)

Our job is to write about these things but the majority comments more appropriately on the dissent by failing to mention it.

It’s refreshing, though, to read a CA1 opinion that contains not a trace of the usual CA1 house style. The majority opinion is just two pages long. The much-longer dissent does sound at times like it was written by a clerk but we’re afraid it wasn’t.

(link to opinion)

After not publishing a civil case for a month Division One has given us this landmark (we’re being sarcastic) easement case.

Vanyo’s trust (College Book Centers) bought a lot on the edge of Carefree Foothills and some adjacent land outside the subdivision. He wanted to develop lots on the adjacent land and to build a road to them over his Carefree Foothills lot. The Homeowners Association refused his request to do so since the CC&Rs permit  only houses – not a road –  on its lots. So he sued, claiming that the HOA had waived the CC&Rs by allowing two other roads to be built and that he had an easement by way both of implied and private necessity.  The trial court denied motions for summary judgment and Carefree’s JMOL. The jury found for Vanyo on the waiver issue but did not decide the other issues. Carefree  appealed.

Frequent violations may result in a waiver. The Court of Appeals held as a matter of law that two violations – both of which occurred 20 or more years ago, one of which was before the HOA was formed and neither of which the HOA had ever formally approved – is not “frequent.” And the CC&Rs said that failure to enforce them was not a waiver; the court held that such provisions are enforceable as long as there had not been a “complete abandonment” of the restrictive provision. This is what the court spends the most time on and appears to be why the case was thought worthy of publication.

The Carefree lot and the adjoining land had been commonly owned until 1912. An implied way of necessity across the lot could exist if, when they were severed, the only access to the adjacent land had been across what is now the  lot. But all Vanyo could prove was that there was no recorded access road, not that there was in fact no access. The court found this insufficient. Carefree had presented some evidence of other access and Vanyo had a burden to disprove it. The court also “could not ignore” the fact, although Carefree hadn’t mentioned it, that a 1909 survey showed various roads running across the property (in other words, the court couldn’t resist weighing evidence and making arguments the parties hadn’t).

In a footnote the court says it needn’t decide whether a person can obtain a private way of necessity over his own land. As much as we don’t like footnotes, since the parties didn’t brief this that’s probably the best way to handle what should perhaps have been a main issue.

But the court held that Vanyo did have a claim for a public way of necessity. The statute (12-1202) allows the owner of landlocked property to condemn property rights for an easement. What Vanyo can condemn here is the provision in the CC&Rs preventing him from building the road. The court seems to agree that that sounds odd but points out that Carefree did not object to the idea that that can be done. So the court remanded for new trial on that issue.

(link to opinion)