You won’t see us reviewing many cases involving modification of a  child support award (or a divorce, or similar things vitally important, we’re sure, but dreadfully dull and repetitive). But this one features a thoroughly fouled-up procedural situation that we can’t resist laughing at.

A couple years after their divorce, Father moved to modify his child support payments to Mother. Father and Mother are millionaires fighting over financial trifles and therefore went at this litigation with a gusto appreciated, no doubt, by their lawyers but not by Division One, which goes out of its way to comment on the situation. After an evidentiary hearing, the trial court reduced the child support but awarded Mother her attorney’s fees. Father moved for new trial and objected to Mother’s fee application; she apparently did not respond to either. Before the trial court had ruled on those, Father filed a Notice of Appeal and Mother filed a cross-appeal. The following month, the court ruled on the motion, mostly denying it in a signed minute entry but reducing the child support further and vacating the fee award. In the mean time, though, Father had moved to withdraw his motion; after finding out about the court’s ruling, he moved to withdraw his motion to withdraw his motion. Mother objected to the motion to withdraw the motion to withdraw and moved to “strike” the ruling on the new-trial motion.

Are you with us so far?

Father then filed a “supplemental” notice of appeal from the ruling on his new-trial motion. A month later, the court granted his motion to withdraw his motion to withdraw his motion for new trial and denied Mothers motion to strike. Mother then filed an appeal from that order, which was an unsigned minute entry.

Folks, keep in mind that there are staffers at all our appellate courts whose first job is to make sure that their courts have jurisdiction of the appeal. They live for cases like this.

The opinion takes several pages to sort out the procedural problems and deal with them.

Father’s premature appeal (filed, remember, before the ruling on his Motion for New Trial) was a nullity. A party may not file a notice of appeal when a time-extending motion (e.g., for new trial) is pending in the trial court. (An earlier Division One case had adopted a broader rule; the opinion in Engel retracts that in light of a subsequent Supreme Court case.)

Father’s supplemental notice of appeal – filed after the new-trial ruling – was effective.

Mother’s Motion to Strike was properly denied. The opinion points out, in essence, that it was the wrong motion filed at the wrong time asking for the wrong relief under the wrong rule. A footnote requests that lawyers read the rules and figure out what a Motion to Strike is and what it isn’t.

Mother’s cross-appeal was a nullity for the same reason Father’s first notice was. She didn’t file a supplemental notice, so she had no appeal. A party may raise a cross-issue in an answering brief (ARCAP 13) but not, as a practical matter, if it seeks affirmative relief (in the language of the rule and the opinion, if it enlarges the rights of the appellee or lessens the rights of the appellant). Because that’s what Mother wanted – more child support and her attorney’s fees – the court had no jurisdiction to consider her cross-issues.

Mother’s other appeal, you may recall, was from an unsigned minute entry. Normally when that happens (the fact that it happens so often that there is a normal procedure for dealing with it is, by the way,  an embarrassment to the profession) the court suspends the appeal until the appellant gets the order signed. But there’s no point in that if the order isn’t appealable anyway. To be appealable, a post-judgment order must raise different issues than an appeal from the judgment would raise and must affect or enforce/stay the judgment. The court held that this order did not satisfy the first criterion.

The rest of the opinion deals mostly with the details of what Father’s child support should have been; if that’s your thing, go for it.

As we always do with things like this, we should point out that we know only what the opinion says and that there could be extenuating circumstances. On the face of it, though, you have to wonder whether there should have been adult supervision.

This special action upholds A.R.S. 12-2603, the statute that requires a medical-malpractice plaintiff to produce an expert’s affidavit with his Disclosure Statement.

Plaintiff argued that the statute conflicts with a couple of discovery rules. The trial judge agreed that it does. In a laudably brief opinion, the Court of Appeals concluded that no, it doesn’t.

There wouldn’t be much more to say about the case were it not for what the court names it. Apparently, we are to refer to it as “Jilly v. Hon. Rayes/Carter.” “Hon. Rayes” is Douglas Rayes, the trial  judge; Carter is the Plaintiff/Real Party in Interest.

In the old days, special actions sometimes named the judge but often named the Superior Court (of whatever County) as the respondent. The theory was that it was a courtesy to the judge not to splash his or her name across the pages of the Reports. Naming the judge was eventually required, for reasons not obvious to practitioners but presumably known to bureaucratic keepers of statistics.  Now, it seems, we must include the honorific as well. Yes, the formal caption of the case says “The Honorable Douglas L. Rayes” but since when does that all get worked into the case name? Captions have said such things for a long time; do we say “Smith v. Dr. Jones” whenever a medical malpractice caption says “Doctor” (as they occasionally do, believe it or don’t).

And why tack on the name of the real party in interest? A case’s name is just something to call it, not a list of the parties.

Of course, these questions may be pointless. It remains to be seen how the case will be named by the real judges of such things: the law-school-grads-who-can’t-get-better-jobs at Thompson/West.

Another day, another new duty. Last week, in Ritchie v. Krasner (CA 1 4/21/09), Division One held that an IME doctor owed a duty of care to non-patient he’d seen for litigation purposes two years before. This week its the appraisers’ turn.

Sage was buying house in Scottsdale. She asked her lender to have Blagg appraise the home; a special clause in her purchase contract allowed her to kill the deal if the property didn’t appraise for at least the purchase price. The lender did hire Blagg, who (the evidence seems to be) didn’t know that he was doing something other than a routine appraisal for the lender’s use. His appraisal came back in excess of the purchase price. A year and a half later, Sage found out that the house was smaller than Blagg thought it was. She sued, arguing that if Blagg had calculated the square footage properly his appraisal would have been below the sales price and she would not have made the purchase. The trial court granted Blagg summary judgment.

The Restatement (Second) of Torts section 552 covers liability for supplying “false information to others in their business transactions.” Arizona courts had twice used this section to deny claims against appraisers. In one case, the appraiser didn’t know that the appraisal would be used in a business transaction; in the other, the buyers were already contractually committed to the transaction. The cases might have been distinguished on that basis but the second case had gone on to say that there was no duty because the appraisal had been for the lender’s purposes, not for the buyers’ use.

Blagg’s appraisal was for the buyer’s use but Blagg apparently didn’t know that. Many cases around the country have held that section 552 imposes liability to a third party only if the professional knows that the recipient of his information intends to supply it to that third party. Those courts have said that because that’s what the Restatement says. A few courts, though, have held that its enough if the professional should have known, or perhaps even that he could have known.

Division One decided to join the latter camp, for three reasons: the “public policy evinced by Restatement section 552” (a public policy most other courts haven’t seen, which you can’t really blame them for since the Restatement seems to say the opposite), “the realities of the loan purchase transaction (which apparently means that sometimes some buyers do look at the lender’s appraisal), and “emerging industry guidelines” (viz., Fannie and Freddie changed the appraisal form – after Bragg did this appraisal – to have the appraiser acknowledge that borrowers “may rely on the report”; a good point, although the fairness of applying it retroactively to a man who knew no such thing isn’t entirely clear).

The court therefore reversed and remanded for further proceedings.

The further proceedings should be lively, if only because one of the issues will be damages. Sage claimed that at the time of the sale her house was worth less than she paid for it. She paid $605,200. Eighteen months later the house was worth – according to appraisers who knew its true size — $700,000. A footnote in the opinion – the need for which is obscure – suggests that her argument is that this second appraisal “was performed during a period of rapidly rising home prices.”

Actually, though, the footnote doesn’t present that as an argument; it states it as a fact, citing as its authority an old article in the Republic.

The court no doubt had in mind Justice McGregor’s January order about finding ways to save money. Now that newspaper articles qualify for judicial notice, we can all dispense with witnesses and just sign up with one of those clipping services that sends you all the articles there are from any newspaper anywhere about whatever subject you want. It is also helpful for an appellate court, on remanding, to find facts that the trier of fact may not have found, or that the parties may be wasting money by arguing about.