We just posted Estate of McGathy and already we have to apologize to Justice Hurwitz: his footnotes are nothing compared to what goes on in this opinion.

The parties divorced in California in 1986. Wife tried to domesticate the judgment in Yavapai County in 1996. Husband objected; the trial court overruled the objection and entered judgment. In 2007 Wife, having renewed the judgment, assigned some sort of rights under it to a collection agency. In 2009 she petitioned for supplemental proceedings. Husband responded that the judgment was void and that she was no longer the owner of it, anyway. The trial court ruled for her; he appealed.

Husband argued that the five-year period for renewal of the judgment ran from the date Wife originally filed the California judgment in Yavapai County. Wife argued that it ran from the date of the court’s order domesticating it. The Court of Appeals agreed with Wife since a foreign judgment isn’t enforceable until twenty days after filing or until an objection to it is ruled on.

Primarily in an extended footnote, the court notes Husband’s contention that there could be a long delay between the two dates, causing confusion and prejudice. The court’s answer is that the problem would be “largely resolved if constraints are placed on the period of time in which a judgment debtor may object to the filing.” It then suggests that 12-1704(c) (the slip opinion says 12-1703(c)) – the foreign judgment isn’t enforceable for twenty days – means that the other party has only twenty days to object. In other words, to solve a problem with its own ruling the court, in a footnote, makes a major change in the law and reinterprets a statute to mean something it doesn’t come close to saying but which the court wishes it said about an issue that the parties (as the opinion admits) didn’t even brief. And all of this is entirely unnecessary since this isn’t really a problem; the issue is one of statutory construction and the statutes mean what they mean even if they cause delay.

As for the assignment, Husband produced a letter from the collection agency stating that Wife had assigned her rights. Wife said that she assigned only her “collection rights,” i.e., the right to collect on her behalf the money owed her. That isn’t how collection agencies normally work in our neck of the woods but, heck, this agency was in California. Anyway, the trial judge decided that she must be right because his file didn’t mention the assignment. He then ensured that it wouldn’t by denying Husband’s motion to compel the collection agency to produce records of the assignment. The Court of Appeals concluded that the trial court’s findings were not clearly erroneous and that denying Husband’s motion was okay because “we are unable to discern” whether Husband had had a California subpoena issued for the records. There was therefore no “credible issue” regarding the assignment.

So what about the letter from the collection agency, written by an attorney? He “mischaracterized” the nature of the transfer of rights, the court says. How can you decide that he mischaracterized it unless you’ve weighed the evidence? And how can you weigh evidence to determine that there’s no need for evidence because there’s no issue to consider? Well, don’t ask us, we dunno.

Husband also argued that the trial court erred by not giving him as much oral argument as requested. But that’s not error since the Yavapai rules don’t require that he be given any.

(link to opinion)

This holds that a Federal Tort Claims Act case does not toll the statute of limitations if it is dismissed for lack of subject-matter jurisdiction.

in 2003 Giovan operated on Morris’ knee at Phoenix Indian Medical Center. In 2004 Morris sued “John Doe” for malpractice in Maricopa County, purportedly to obtain medical records as he claims not to have known whom to sue; suit was dismissed for lack of service. In August 2006 Morris filed in District Court an FTCA claim against the US and also against Phoenix Indian and Giovan, asking the court to take supplemental jurisdiction over the state malpractice claim. That was dismissed in October 2007 because Morris wasn’t suing a federal employee.

Meanwhile, in March 2007, he had filed another state court case, this time naming Giovan. Having blown the statute of limitations, Morris lost that on summary judgment in December. He did not appeal. But in April 2008 he filed a Rule 60(c)(6) motion, arguing that his federal case tolled the statute. (Whether he had made the same argument in opposition to summary judgment – and if not, why not – isn’t explained.) That was denied on its merits (a footnote points out that 60(c)(6) can’t be used for an error of substantive law but Giovan didn’t raise the issue). Morris appealed, even though the minute entry wasn’t signed; his appeal was suspended until it was.

Morris’ claim that his FTCA claim tolled the limitations period is based on a federal statute that says so. But the U.S. Supreme Court held (Raygor), as our Court of Appeals interprets it, that the tolling statute does not apply to supplemental state-law claims if the FTCA claim was dismissed for lack of subject-matter jurisdiction (Raygor was dismissed on 11th-Amendment grounds). The theory is that if the federal court had no subject-matter jurisdiction, it also had no power over supplemental state claims.

Perhaps we shouldn’t complain when Division One gives us an opinion that is only nine pages long. On the other hand, it also has nine footnotes. And it consists, basically, of a discussion of just one case.

As for counsel, perhaps you should give him credit for spending seven years and three lawsuits protecting his client’s claim. We won’t suggest what was perhaps really being protected, at a cost to the client of five years or more. We do wonder how many years ago he put it on notice.

(link to opinion)

We normally wouldn’t blog an opinion about forcible entry and detainer but this one is so depressing that we couldn’t resist sharing it with you.

At a trustee’s sale Arizona Real Estate bought a house that Schrader refused to leave. It filed an FED action and served Schrader by “post-and-mail,” i.e., posting the process in a “conspicuous place” and sending him copies by certified mail. After it obtained judgment against Schrader he appeal, arguing improper service.

There are two types of FED – an FED action under 12-1171ff and a ”special detainer action” under 33-1377 (used to evict renters). Rule 5(f) of the Rules of Procedure for Eviction Actions allows post-and-mail for the latter but follows Rule 4 for the former. ARE filed a 12-1171, so post-and-mail was improper.

It then argued – as, apparently, did the trial court – that the court was actually using its authority to allow for alternative methods of service. But that requires that Rule-4 service be “impracticable” (in English, “impractical”) and there was no showing that it was even attempted, much less that it couldn’t be done.

For lack of proper service, the judgment against Schrader was void. So, instead of getting possession of the house it owns the plaintiff has to start all over (and also to pay Schrader his costs for the first round).

We’re going to assume that there was a lot happening here that doesn’t meet the eye. Because, meaning no disrespect, let’s face it – FEDs just ain’t that hard. They’re one step up from uncontested default hearings. They’re either what you make your living doing a ton of – including the occasional hard one – or what you give the green associates who’ve already shown that they’re not really cut out for court. How could these people have either filed the wrong sort of case or not noticed that their process server had used the wrong method? Having been put on notice that they’d botched it, how could they litigate for a year through two levels of the judiciary rather than cut their losses and start over? What did they tell the client? And are they going to charge it for doing things right the next time?

But what really depresses us are those Rules of Procedure for Eviction Actions. Remember some time back when a special committee spent much time and effort consolidating various sets of civil rules? Like kudzu, they grow back. Eviction actions aren’t the only examples. The demands of the niche practices, based variously on vanity and ignorance, are unending; the willingness of the Supreme Court to cater to them is disappointing. Coming soon: the Rules of Civil Procedure for Changing Names.

(link to opinion)