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Robinson v. Kay (CA2 7/30/10)

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Another Rule 54(b) problem.

The Robinsons sued to establish an implied (Count One of the Complaint) and prescriptive (Count Two) easement to use a road over the Kay’s property. Both parties moved for summary judgment on Count One; the trial court ruled for the Kays and entered a judgment which, by stipulation, included Rule 54(b) language. The Robinsons appealed.

The Court of Appeals, on its own motion, dismissed the appeal. “Easements by prescription and implication are separate legal ‘theories’ supporting the existence of an easement; they do not in themselves constitute separate ‘claims.’” And “when a judgment merely disposes of one or more legal theories supporting a single claim, ‘Rule 54(b) language does not make the judgment final and appealable.’”

One would have thought that with Count Two still hanging out there the Robinsons would have spotted the problem. If they did but decided that the prescriptive-easement claim wasn’t worth pursuing, the answer in that situation is to take a lesson from the criminal side and remember that sometimes you have to dismiss things to set up your appeal.

On the other hand, Rule 54(b) problems are (depressingly) common and the Court of Appeals tends to deal with them by suspending the appeal until the paperwork can get cleaned up. Perhaps – since everything the parties did was consistent with the idea that the Robinsons didn’t want to proceed with Count Two, and since their lawyers are supposed to know what they’re doing, and since if that’s right then the appeal will have to be re-filed as soon as the parties can dismiss Count Two, and since this opinion says that the court is concerned about piecemeal appeals –  the court could have entered an order giving the parties ten days to dismiss Count Two or the appeal would be dismissed. (Our vote would be to dismiss all these appeals, since lawyers might then actually bother to do things right, but we’re not holding our breath.)

 

(link to opinion)

Cardona v. Kreamer/Lac Vieux Desert Band of Chippewa Indians (7/30/10)

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The Supreme Court has issued this opinion to clear up a point of confusion about service of process in Mexico.

The Lac Vieux Band filed an action in Maricopa County against Mexican nationals. Service in a foreign country, under Rule 4.2(i), must be made according to the Hague Service Convention where it applies; where it doesn’t service is basically by letters rogatory or by the foreign country’s rules, including personal or mail service if it’s legal or by other legal means permitted by the trial court. Mexico is a signatory to the Hague Convention. But the trial judge, on the Band’s ex parte motion, allowed service by a shotgun combination of mail, email, and Fedex (and then approved service despite the Band’s not receiving return receipts or delivery confirmation). The defendants, for reasons not made clear in the opinion (presumably they have assets in this country) appeared to contest jurisdiction and service. The trial court denied their Motion to Dismiss; the Court of Appeals denied special-action review; the Supreme Court accepted it on the service issue.

Parties to the Convention designate a central authority for service of process which, when requested, makes the service; in Mexico this is the Ministry of Foreign Affairs. The Convention also permits certain alternative service methods – through diplomatic channels and by direct personal service –  but allows parties to opt out of those, which Mexico did when it joined the treaty. The problem is that when Mexico filed its joinder the Dutch, with whom such things are filed, asked it for an English or French translation to send out to other countries, and the resulting English translation contains a mistake – it suggests that only direct service through diplomatic channels (rather than all direct service) is forbidden.  This opinion holds that the Spanish version, not the English, controls.

(It could be argued that the original document should have been in French or English – and that the English translation is therefore the operative version – since those are the languages recognized by the Hague treaties of which the Service Convention is a part. That may be what the Dutch were politely trying to tell the Mexicans. Our Supreme Court relied on a U.S. Supreme Court case (Todok, 1930) holding that “for a treaty ratified in French, the French text, not the English translation, controlled.” It isn’t clear why that supports using a language – Spanish – that was not the language of ratification and is not one of the treaty’s official languages rather than a language that was and is. However, the court mostly relied upon a recent law review article from which it appears to have taken the idea that since the Mexican President and Senate dealt with the matter in Spanish, and since the Mexicans had sniffed that the English translation was merely a “courtesy,” that’s that.)

The Band then argued that it was entitled to use a loophole in the treaty: it doesn’t apply when the defendant’s address is unknown. But the Supreme Court simply remanded that for determination by trial court. The purpose of the opinion was to clarify the requirements for Mexican service, not to resolve the case. In fact, the purpose of the opinion seems to have been to adopt a Minnesota law review article as the law of Arizona. The upside of doing that is that its author evidently knew a lot more about international treaties than anyone involved in this case; that is also the downside. 

(link to opinion)

Ramsey v. Yavapai Family Advocacy Center (CA1 7/13/10)

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Otherwise undistinguished, this opinion is notable for its decision not to create a new duty.

Ramsey’s wife reported that he had sexually assaulted their child. After an investigation, a grand jury indicted him but the State dismissed the charges when its own expert’s report was iffy. Ramsey then sued everyone in sight for most of the torts you’ve ever heard of. The trial court granted the defendants summary judgment, mostly based on §13-3620J, which gives immunity to people who report child abuse. The Court of Appeals affirms.

Ramsey argued that the statute violates equal-protection and abrogates his right to sue. But he hadn’t raised the equal-protection argument until he moved for reconsideration of the summary judgment. He hadn’t mentioned the abrogation argument except perhaps at oral argument and he didn’t put a transcript of that in the record. So the Court of Appeals did not consider the constitutional arguments.

Under the statute, a person who reports it must “reasonably believe” that abuse occurred. The court said that that requirement does not apply to those who participate in the investigation, e.g., experts who examine the child and express their opinions.

The counselor who did report had reasonable belief because the mother told her and because the child said her father touched her “inappropriately.” The court also held – and this seems to be the principal legal aspect of the case – that a counselor or therapist owes no duty to an alleged sex offender.

Ramsey argued that people acted with malice, which would destroy the qualified privilege. The court interpreted acting with “malice” to mean doing something that the actor knows to be wrong. There was no evidence of that.

As for defendant YFAC itself, it was only the place where part of the investigation had taken place; none of its employees participated. There was no evidence that it breached a duty to Ramsey.

(link to opinion)