What these plaintiffs were trying to do makes sense only if you know that federal law permits something similar.

Former teachers in the Window Rock School District sued it, claiming that the District had not properly calculated their pay under a particular statute. After the trial court denied the plaintiffs’ motion for certification as a class action, the District made an Offer of Judgment. Plaintiffs accepted it. Then, before the judgment had been entered, they filed a motion for reconsideration of their class-action motion. The court denied this as being moot.

Plaintiffs appealed. They argued that the OJ didn’t cover their claim to represent a class, which is separate from their individual claims on the merits. They pointed to federal cases under which one can, indeed, accept an OJ but then appeal certification.

The Court of Appeals pointed out that Rule 68 specifically says that an OJ need not “be apportioned by claim.” So, the OJ extinguished all of the plaintiffs’ claims. And, while federal litigants can accept and appeal, they must explicitly reserve the right to appeal when they accept; in Arizona, acceptance must be unconditional.

Because they had no claim left to appeal, their appeal was dismissed.

This was an interesting issue but the opinion makes it look harder than it is. The court’s extended discussion of the statutory basis of its jurisdiction, for example, is mostly unnecessary, as is the amount of space spent on the plaintiffs’ lesser – and faintly ridiculous – arguments (e.g., that they can file motions on behalf of people who are not parties to the case and that the OJ doesn’t dispose of all claims unless it contains the word “action”).

Reading cases on law you don’t practice can teach you things. Whether they’re the right things is another question.

This is, just like it sounds, a divorce case, which we don’t usually read. Wife got spousal maintenance based on an Amended Complaint she didn’t serve; the Court of Appeals, after some tendentious meandering, decided that she came close enough.

The interesting part is Footnote 5. It tells us that there is, after all, despite years of people’s thinking and being taught the opposite, a difference between a “general” and a “special” appearance. How did the court conclude that? First, because In re Hindi, 71 Ariz. 17 (1950), which had been cited to the court for the proposition that there was no difference, “predates the effective date of the Arizona Rules of Civil Procedure.” Second, because later cases had used the phrase “general appearance.”

How do courts make mistakes like this? We’ve said it before: footnotes too often contain things that have only been half thought through. In this case, the footnote resulted from something said at oral argument, which may mean that it was an afterthought to an opinion that had already been researched and drafted – and which, perhaps, nobody wanted to have to change too much. (Yes, we know we just asked for a footnote in another case but that was a brief, explanatory footnote, not a footnote attempting substantive legal analysis.)

(Don’t understand why the court was wrong? Here’s the deal:)

In In re Hindi, our Supreme Court took judicial notice that there was no difference under the “new” rules between a general and a special appearance. What rules was it referring to? The tip-off should have been the authority it cited for that conclusion: Moore’s Federal Practice. Moore’s has always been about the federal rules of civil procedure, the rules we adopted and have now, which had been promulgated federally in 1938. In re Hindi, in other words, was referring to our present set of rules, not to some earlier set.

The Rules of Civil Procedure, as rules, were adopted in Arizona in 1949, and in large part had been incorporated as statutes in A.C.A. 1939. If you look in the rule book nowadays – which is apparently all the court did – it does say that the rules were effective in 1956. What happened, though, was that the rules were re-adopted in 1956 when the A.R.S. replaced the A.C.A. 1939. A bit tricky, perhaps, but don’t we expect courts to be able to handle these things?

The court also failed to consider that the present rules,  which it suggests established a difference between types of appearance where none had existed before, do no such thing. No rule defines general versus special appearances (except the very recent Rule 5.2 on “limited” appearances in vulnerable-adult matters).

Why have courts occasionally used the phrase “general appearance?” As Kline itself acknowledges, “general appearance” means the same as “appearance.” Lawyers and judges sloppily interchange phrases like that all the time.  That “general appearance” means the same as “appearance” logically  suggests not that there is a “special” appearance but that there isn’t. If they mean the same then the broader “appearance” subsumes the narrower “general appearance,” not the other way around.

(We deliberately left out one reason the court didn’t think In re Hindi applied: because it “has never been cited for this proposition.” Precedent can’t be cited until its been cited? Don’t get us started . . .)

This is a res judicata case that discusses the effect a federal action has on a state action.

Hodap was a member of the Flagstaff version of those paramilitary anti-drug police units. He and other officers broke into the Howells’ home but apparently didn’t find enough to support a drug charge. (Mr. Howell shot at the officers, which earned him charges for attempted murder and aggravated assault, which were eventually dismissed.) (The opinion lingers lovingly on the details of the break-in; it tells us, for example, about the “halogen tool on the lip of the security door.” We’re afraid to ask why anybody at the court thought that an important fact.)

The Howells filed suit in Yavapai County for violation of their state constitutional rights, state statutory rights, and various torts. They then filed suit in federal court for violation of federal constitutional rights and statues. The factual allegations in both cases were essentially identical.

In the District Court, the Howells lost summary judgment on some of their counts and lost a jury trial on the others.

The defendants then moved for summary judgment in the state court action based on res judicata and collateral estoppel, which motion the court denied. Some of the plaintiffs’ causes of action were thrown out by other motions; others went to trial. The jury found for defendants on all, except that they awarded Mrs. Howell $10,000 for false arrest.

On appeal , the defendants argued that the trial court should have granted their res judicata motion. The Court of Appeals agreed.

The parties agreed that the two cases involved the same parties and that the federal case had gone to judgment on the merits. That left only one element of res judicata to be decided: whether the suits had involved the same claims and causes of action.

The conclusive effect of a federal case is, the court said, controlled by federal law. In the Ninth Circuit, claims are the same if they “arise out of the same transactional nucleus of facts.” For some reason, the court cites a Ninth Circuit case that sets out other elements as well, then cites still more Ninth Circuit cases to establish that the “transactional nucleus” test is the one that really counts. (How, you ask, does a “transactional nucleus” differ from a “nucleus?” We wish courts would ask – and answer – that sort of question.)

The plaintiffs argued that their state constitutional rights were broader than their federal rights. But res judicata depends not merely on what claims were brought but on what claims could have been brought. The state causes of action could have  been brought as pendant claims in the federal case, so the resolution of that case precluded the state claims as well.

This was an example of those two-headed cases – one opinion that’s published and one that isn’t. The unpublished opinion discusses interesting issues, some tied fairly closely to res judicata; it would be interesting to know why the court split one part of the analysis out as a separate opinion. The memorandum opinion also addresses to some extent the other issues raised by filing two lawsuits, which some lawyers appear to think clever.