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)

This is an opinion on certified questions from the Ninth Circuit concerning judgment renewal.

Fidelity took judgment against the defendants, in federal court in California, in 2002. It registered the judgment here and unsuccessfully tried to collect it. In 2008 the defendants moved in Arizona federal court to bar further collection efforts because Fidelity hadn’t renewed the judgment. The court denied the motion, concluding that the judgment had been renewed by Fidelity’s attempts to collect it, which included the Arizona collection efforts and a lawsuit it filed against the same defendants, again in California, in 2006, alleging that their attempts to avoid paying the judgment violated RICO. Defendants appealed. The Ninth Circuit certified the questions of whether either collection efforts or filing a related case in another state renews a judgment.

Under 12-1551(B) a judgment must be renewed within five years by affidavit or by “an action . . . brought on” it. Fidelity argued that “’action’ includes any matter or proceeding in a court,” quoting 1-215. But the Supreme Court, after reviewing 1551’s common-law and statutory predecessors – which long predate 215 – determined that it refers to a common-law action on a judgment, not “any matter.”  In that kind of “action” the creditor alleges the old judgment and prays for a new one on the same debt. It wouldn’t make sense to have a well-defined affidavit process if “any matter” would do just as well. And prospective creditors of the judgment debtor would have a hard time knowing if the judgment was still in force if “any matter” could keep it alive rather than something clearly on the docket.

So, Fidelity’s acts did not renew its judgment.

It has been so long since anyone filed a real action on a judgment that Fidelity may actually have believed its arguments. The result shouldn’t surprise those who have worked with the statute or know anything of the history recited by the court, though. It is probably time to remove the “action on a judgment” language, just as an earlier version of 1551 removed scire facias from the law.

But perhaps what confused Fidelity and the District Court was AAU v. Wood, 209 Ariz. 137 (App 2004), which held that intervention counts as “an action . . . on” a judgment. In a footnote this court says “we express no opinion whether, in light of today’s opinion, the court of appeals” was correct. In light of today’s opinion it obviously wasn’t, and was so wrong that the opinion really should mention it, but that’s a problem since Justice Pelander, who joins this unanimous opinion, wrote AAU. That was not his finest hour. AAU might also explain why he did not write this opinion (Justice Hurwitz did) even though he addressed the same basic issue last year in Jones, which was not consistent with AAU either and which the Supreme Court later ordered de-published anyway.

Speaking of Justice Hurwitz, this isn’t quite as clean an opinion as we’ve come to expect from him. “The starting point in resolving the questions before us is the common law background,” he tells us at the beginning. That’s true. But it would have been useful to say why it’s true – because the background illuminates the legislative intent of the present statute – at the beginning, too, rather than waiting until the end of the legal-history analysis to explain why it’s there. But we’re not complaining too much since we’re suckers for legal history; he gets extra points, in our book, for using scire facias in a sentence (although we think it should be set in italics, and that Court of Appeals should be capitalized, two things this opinion doesn’t do).

(link to opinion)

This reverses a Court of Appeals opinion we blogged here. Please read that first (or at least all but the last paragraph) to put what we are about to say in context:

The Supreme Court agreed.

The court says that it took review of this case in order to provide “interpretation of the borrowed servant doctrine.” But it adds nothing to the law except three relatively trivial points. First, the fact that a servant can have two masters means that an earlier case was wrong if it implied that a master must have exclusive control. Second, in a battle of footnotes with the Court of Appeals, “borrowed” employee is a tort concept whereas “lent” employee is a workers compensation concept (CA1’s footnote said they were synonymous) Third, the court doesn’t like (“we . . . distance ourselves from”) language in a 1937 case that an element in determining which entity was the master is which one the employee was “furthering the business” of, since one entity may be in the business of lending servants. (If one of them isn’t in that business then the language would still seem a perfectly useful guide but this opinion puts it under a cloud in all cases.)

So what does the case interpret? Well, the Court of Appeals remanded “for a trial consistent with this decision.” The Supreme Court takes care to explain that there will be no new trial on damages or allocation of fault. That’s what the Court of Appeals may have meant anyway but now there can be no argument: the amount in controversy will safely remain $900,000. The only question will be whether Bowen is responsible for it.

The opinion tries to seem significant. It even cites Benjamin Cardozo. (So now you like the guy? What about when your court casually, without admitting what it was doing, abandoned his seminal opinion?) But it is the Court of Appeals’ opinion restated more succinctly. We didn’t know why that opinion was published; we didn’t understand why the Supreme Court took review. We still don’t. As for the Supreme Court, though, the rest of the opinion is so lightweight that we will forgive those who suspect the part about remand of being the tail wagging the dog.

(link to opinion)