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.

Remember the name? You might, we’ve already written about it; the court released it on July 2. Why release it again? To correct a few minor typos in the original. This has happened before. How did it get out the door with typos? And why promulgate it like a new opinion, with a new date, with nothing to explain what’s going on and why those of us who already read it needn’t pay any attention? Mere lawyers are apparently not encouraged to know.