A special-action opinion dealing with how Rule 42(f) – notice of change of judge – works in a consolidated action. This is one of those cases in which the petitioner had a good enough argument that the court felt the need to write an opinion explaining why he was wrong.

Huerta appeared in the probate of his father’s estate and changed the judge. He later sued the P.R. for converting estate assets, which action was consolidated with the probate. He then filed another change of judge. The court denied it, reasoning that he’d already had his one peremptory change.

Huerta petitioned for special action; the court took jurisdiction, denied relief, then issued this opinion explaining why.

Huerta had argued that consolidation does not “merge the cases into a single cause, or change the rights of the parties.” He argued that because that’s what Yavapai County v. Superior Court, 13 Ariz. App. 368 (1970) says. But Rule 42(f) says that “each action, whether single or consolidated, shall be treated as having only two sides.” The court ruled that the “single or consolidated” language means that “when, for whatever reason, there are multiple parties in a case, absent a showing of hostile interests within a “side” pursuant to subpart [42(f)](1)(A), there are only two “sides” and each may exercise only one peremptory change of judge.”

What this seems to say is that since Huerta’s position in the lawsuit was consistent with his position in the probate action, he was on the same “side” as himself. This suggests a rather clunky train of thought on the court’s part but the outcome and the lesson of the case are clear enough.

The opinion stains itself, though, by citing in a footnote the infamous case of Marvin Johnson, P.C. v. Myers, 184 Ariz. 98 (1995). In that case the court not only reversed seventy years of precedent but pretended that it didn’t exist, instead implying that Johnson’s lawyers were idiots – all, rumor has it, for professional and personal reasons having little  to do with the facts of the case. Its holding seems innocuous and might even be right but Marvin Johnson is a poster-child for much that can be wrong about judicial opinions. Why the court cites the case at all is mysterious, since the same footnote that does so admits that Huerta did not raise the only issue to which it might have been pertinent.

If you want fees, be careful to follow the rules.

The Kings sued Titsworth for breath of contract. They lost. Titsworth moved for a fee award under 12-341.01. Rule 54(g) requires that such a request be made in the pleadings but his Answer (filed pro se and not amended when he got a lawyer) didn’t. The trial court awarded him fees anyway; the Court of Appeals reversed.

The court goes to some lengths to justify its conclusion, pointing out that the rule was amended in 1999 specifically to add the requirement of a request in the pleadings, that a motion (for a fee award) isn’t a pleading, that it has to interpret rules according to the intent shown by their language, and that there is a similar rule in the ARCAPs. The opinion also explains that the policy underlying the statute supports it because that policy includes promoting the settlement of disputes, and if you don’t tell people ahead of time that there is a statute out there that allows a fee award then they will be “deprived” of the opportunity to figure out whether they should settle the dispute. (This nonsense comes from a couple of Arizona Supreme Court cases talking about appellate rules, so you can’t blame Division One for it entirely.)

Why did the court use so much time, effort, and pages – and publish it (resolving other issues in the case by memo) – to say that the rule means what it says? Maybe its just the inefficient allocation of attention typical of our appellate courts. Or maybe somebody was feeling a bit guilty about the fact that the statute itself doesn’t require a request in the pleadings. When can a court rule condition a statutory right? We bet you can find cases about that – but Titsworth apparently didn’t mention it, so this isn’t one of them.

This is yet another notice-of-claim case, this time involving service of the notice, with a startling feature in a footnote.

Batty was injured at one of the District’s high schools. He served his notice of claim on the school Principal and on the Districts’ Superintendent. The District moved for summary judgment, arguing that they were the wrong people to serve. The trial court granted it; the Court of Appeals affirmed.

The notice-of-claim statute, A.R. S. 12-821.01, requires service on the person who would be served under the Rules of Civil Procedure. Under Rule 4.1, service on a government subdivision is made on the “chief executive officer, the secretary, clerk, or recording officer thereof.” The District had adopted a rule saying that the Superintendant was its “chief administrative officer.”

In Falcon ex rel. Sandoval v. Maricopa County, 213 Ariz. 525, the Supreme Court had found that a county manager is not a county’s CEO for purposes of service since the county’s Board of Supervisors, not the County Manger, is ultimately responsible for the operation of the county. The Batty court agreed with the District that the relationship between Board of Supervisors and County Manager is analogous to that between the school district board and its superintendent.

The court speculated that it might be possible for a school district to delegate enough power to its superintendent to create a CEO but decided that it didn’t need to rule on that in this case.

And now for the footnote. At oral argument, the District pointed out that some school districts don’t even have a Superintendent. The opinion mentions that and decides to cite, in a footnote, the authority for it.  That authority is a web site for the Hackberry School District. The Hackberry SD runs a Kingman elementary school and its web site says that it has no Superintendent.

There are several problems with this, perhaps the least of which is that the web site doesn’t say that. At least, it didn’t when we read it. Reading between the lines of what it does say, that might be true. On the other hand, the site says that it has an “Administrator,” whose duties are not described and who, for all we know from reading the web site, is a “Superintendent” in all but name (or maybe, for that matter, even a CEO).

And since when can a court find facts by reading them on web sites? Isn’t it notorious that the web is full of mistakes, omissions, and insanities of every conceivable description? What happened to the rules of evidence? Does the court really mean to suggest that it can, in making and interpreting the laws of Arizona, rely on unsworn, unsubstantiated hearsay so long as it appears on a web page?

We hope not. We like to think that the fault lies with an overzealous and inexperienced clerk and that the footnote would not have appeared had the opinion been adequately edited (which they almost never are). Otherwise, we may be heading into the Post-Evidentiary Age.