This is a forum non conveniens case but it doesn’t add anything to the law and depends on its specific facts. Had it affirmed rather than reversed, surely the opinion would not have been published.

The failure of a Continental tire allegedly caused a rollover that killed two people and injured four others. The people involved were from San Luis, Arizona (some citizens, some resident aliens), the tire had been sold and mounted in Arizona, but the accident happened in Sonora, Mexico. Plaintiffs sued Continental and its dealer in Maricopa county; Defendants moved to dismiss on grounds of forum non conveniens, arguing that the case should be heard in Mexico. Incredibly, the trial court dismissed.

The Court of Appeals reversed.

Under forum non conveniens, the defendant must show that the case can be brought elsewhere. The parties argued about whether the Mexican statute of limitations would permit suit there but the court assumed that it would, basing its decision on the conveniens part rather than the forum part.

Defendant must show that the foreign forum is the more convenient place to litigate. This includes the convenience both of the parties and of the court (or, as the court put it, “private interest factors” and “public interest factors,” using the pretentiousness typical of courts doing what they please to call deep legal thinking). These Defendants argued that some witnesses were in Mexico and couldn’t be brought here to testify. The Plaintiffs argued, and the court agreed, that the Mexican witnesses were relatively unimportant compared to the many American witnesses who would be called and that testimony could be taken from Mexican witnesses under the Hague convention. (While that may theoretically be true, it can take a long time; more likely, folks will arrange some depositions in San Luis.)

As for “public interest factors,” Arizona obviously has an interest in a case concerning damages to residents caused by a product sold here. The court treated Mexico’s interest as minor; if the opinion is to be believed, Defendants apparently argued for Mexico’s interest by presenting articles about the crash from Sonoran newspapers. (Actually, to our understanding Mexican courts would insist that they had a great interest in an accident on Mexican roads but Defendants don’t seem to have done much to explore or argue that.) Defendants also argued that the docket is crowded in Maricopa County; the question, said the court, is whether the docket is less crowded in Mexico, i.e., whether Plaintiffs could get a speedier trial there, and Defendants had presented no evidence on that.

The court awarded Plaintiffs their costs on appeal, and properly so. There was no slightest possibility that on these facts Arizona would send the case to Mexico; Defendants did well to sell the idea to one level of the judiciary.

Forum non conveniens can work but you need pretty strong facts. When the facts are weak and the smell factor strong – obviously, nobody here was really concerned about anybody’s convenience or anything other than whether Mexican or American law would apply to the claim – the court is not going to have much sympathy. Defense counsel made a lot of money doing this but this is a house-counsel sort of idea so we’ll assume that’s where it came from.

Can a motion for New Trial make an otherwise unappealable judgment appealable? We would have thought the answer intuitive.

Plaintiff’s filed a five-count Complaint; Defendants counterclaimed. Defendants obtained summary judgment on three of Plaintiffs’ five counts. Plaintiffs then attacked that ruling with a motion for New Trial. The court denied that and Plaintiffs appealed.

The judgment in the court below was a partial judgment without Rule 54(b) language. The opinion takes a surprising amount of time pointing out that you can’t appeal one of those. (This tendency to explain basic principles at length is common in opinions, almost as if – not that we’re suggesting anything, you understand – they were drafted by people who hadn’t practiced law much.)

But the appeal wasn’t from the summary judgment, it was from an order denying a new trial. Aha, a loophole!

No. The ruling on a New Trial can be appealed under A.R.S. 12-2101(C) — “from any special order made after final judgment.” You need a final judgment. Plaintiffs here didn’t have a final judgment, so they couldn’t appeal the New Trial order. The opinion takes three pages to say that, but that’s all it adds up to.

The opinion points out that a case called Mezey said all this just six years ago. But the court was spooked by the fact that a later Supreme Court opinion in another case disapproved of some things Mezey said about a different part of the appeal statute. So Santa Maria treats Mezey as if it were slightly radioactive, saying that the result here “is compelled” not by Mezey’s precedent but by its “reasoning.” 

Perhaps that was the reason for publishing this opinion. Unless the court thinks there’s something wrong with Mezey, Santa Maria adds nothing to the law.

The name sounds like a criminal case but this is a bail-forfeiture proceeding, which is civil. We review it because published opinions are scarce this month and because it gives people who don’t do this work – viz., almost all of you – a glimpse of the sort of thing that happens in the smaller niches of the practice.

Copperstate posted an appearance bond; Crow paid the money for it (10%) and signed as indemnitor. The accused missed a court date – the police picked him up a couple of weeks later – so the court ordered a forfeiture hearing.

The Commissioner raised, sua sponte, the issue of whether Crow had standing to contest the forfeiture. The State said that he did but the Commissioner wanted the matter briefed. Crow briefed it; the State did not respond. The Commissioner thereupon decided that Crow lacked standing. On appeal, the State decided to agree.

On the standing issue, the Court of Appeals recited Crow’s argument, mentioned the Commissioner’s reasoning, then stated in one sentence its holding for Crow: a bond depositor or indemnitor has standing to contest forfeiture. How anyone reasonably familiar with civil law could have thought otherwise is a mystery, but then civil law is indeed mysterious to many in the criminal practice; in any event, the lack of prior cases on this exact subject on this exact statute was apparently enough to mislead the trial court and merit the publication of this opinion.

Meanwhile, Crow had established his bona fides by testifying in an affidavit that he had posted the bond and by presenting a copy of the application for it  showing him as indemnitor. In response, the State’s lawyer said that someone (apparently, some investigator or cop or deputy county attorney) talked to someone else who said that Crow didn’t really put up the money; the State also said that the deed of trust used to secure the bond was forged without, it seems, even offering hearsay – much less evidence – to prove it. The Commissioner indicated that Crow hadn’t proved that he posted the bond because he “failed to provide any corroborating evidence.”  In other words, in that Commissioner’s court the State’s double hearsay and unsupported allegation beats somebody else’s testimony.

Crow also argued that the accused had a valid reason for failing to appear. The Court of Appeals agreed with the trial court that he hadn’t. It therefore remanded, charitably construing the Commissioner’s ruling as not actually making a finding about Crow’s interest in the bond, instructing her to do so, and gently giving her some instruction along the way about how to follow the statute.