Another stumble on the way to electronic nirvana.

Stout pled guilty to a misdemeanor in the Justice Court. After sentencing he moved for Rule 32 post-conviction relief. To support this he requested transcripts of some hearings; Rule 32 says he “may request . . . that certified transcripts be prepared.” But Rule 7 of the Superior Court appellate criminal rules says that the “record on appeal” is a “recording or certified transcript . . . , as the Superior Court may require.” The Justice Court, and then on special action the Superior Court, told Stout he could have recordings but not transcripts.

The Court of Appeals reverses, holding that Stout can have transcripts.

As usual nowadays Stout mistimed his appeal, so as usual nowadays the court has to include a paragraph explaining why it can hear the case. This is Barassi situation, so see Baker if you’re interested in that.

The court next decides which rule applies. It takes the Occam’s Razor approach, which is helpful to the case but less so to the law: Rule 7 applies to the “appeal” record so it doesn’t apply here because a Rule 32 proceeding isn’t an “appeal.”

There can, then, be a difference between the record for some purposes and the record for others. That way lies chaos.

Next, the court decides that it has to decide whether the word “transcript” doesn’t really mean “recording” as well.  (The State didn’t make that argument; it didn’t file a brief.) That this didn’t go without saying is ominous; if words in the rules mean whatever an appellate court says, however plain they are, then there are no rules.

But in this case the court couldn’t quite mange to call black white. Dictionaries tell it that a transcript is written or printed. In addition, though, the court tells us that “the Supreme Court has recognized a difference between transcripts and electronic recordings by distinguishing between them”: ARCAP 11 says “transcript,” Rule 7 says “recording.” Well, yeah, but whether the distinction indeed makes a difference is what the Court of Appeals told us it had to decide; if there’s a distinction between rules 7 and 11, why wonder if there’s a distinction between rules 7 and 32?

The court acknowledges that giving special privilege to people who pled guilty in the Justice Court is silly but under the existing rules this is surely the correct result.

The court takes care, though, to make obeisance to the zeitgeist. In a long paragraph it explains to us that recordings are just as good as transcripts and that they don’t prejudice anybody and that – in a passage sure to bring a gleam to the eyes of the judicial-branch bureaucrats who nowadays rule the law and our profession – they save money.

(link to opinion)

Another case about the ins and outs of title insurance. We cover these from time to time because many lawyers don’t understand what it is and isn’t

Centennial bought land in Snowflake then discovered easements on it. It let the property go back to the seller/lender then sued Lawyers Title in tort and contract. The trial court gave Lawyers Title summary judgment. Centennial appealed.

The Court of Appeals affirms on the tort claim. Centennial’s was for negligent misrepresentation, arguing that it wouldn’t have purchased the property had it had an accurate title report. But under the statutes a title report – an “abstract of title,” the phrase  “title report” having been carefully maneuvered into obsolescence – isn’t what a title company issues. A title policy is (to use our own language; the statute doesn’t put it quite this way) just a bet that there won’t be title defects not listed in the policy. (The court characterizes the effect of this 1992 statute as “effectively barring” a negligence claim that could have been made under prior law; we thought we had a Constitution “effectively barring” that sort of thing.)

In contract the Court of Appeals reverses and remands. Lawyers Title argued that its policy only covers insureds while they own the property. But  Centennial’s argument was that because of the unknown easements it paid too much for the property and had to let it go back to the seller – i.e., that the damage was incurred while it was the owner. The policy, says the court, does not prevent that claim from being made later.

(link to opinion)

Does res judicata apply to a small-claims judgment? The court says “yes.”

Plaintiff took judgment against defendant in the small-claims division for injuries sustained in a car accident. For $2500 whole dollars. Apparently realizing her mistake, she then filed the same claim in Superior Court, so that court dismissed it.

On appeal she argued that res judicata shouldn’t apply to the small-claims division. The court says in ¶8 that she didn’t cite any authority, then beginning at ¶11 discusses for a couple of pages the authority she cited, Clusiau (2010), holding that under the facts of that case collateral estoppel didn’t apply to small claims. But collateral estoppel has different elements and so the court determines that Clusiau doesn’t apply. The general rule – the court cites the Restatement of Judgments and, what else is new, cases from such helpful jurisdictions as Connecticut, Missouri, and Idaho – is that res judicata does apply to courts of limited jurisdiction.

Plaintiff also argues that small claims couldn’t award the full amount of her damages. But filing there was voluntary – “we emphasize [her] intentional decision to initially [sic] pursue her case in small claims court” – it might have been a tactical decision, for example to get some money more quickly – and so she is bound by it.

Although the parties said “res judicata” the court is careful to say “claim preclusion” and offers a cite for it — a 2006 opinion from the Arizona Supreme Court that mentioned “claim preclusion, formerly referred to as res judicata” (sic, i.e., not italicized). Strange that our appellate courts have have used “res judicata” in  269 cases since then. We wonder over whom Judge Brown is announcing his intellectual superiority – you and me or the judges in those 269 cases. He also says “issue preclusion” when discussing Clusiau even though that case itself – from the old, dark days of 2010 – said “collateral estoppel.” He’s apparently too busy to have read this, since we can’t think of another good reason not to.

(link to opinion)