Division Two’s rare ventures into the field of published civil law often afford opportunity for snarky comment, though this time they’re as much about the lawyering as the judging.

Wyckoff sued her former employer Mogollon claiming that mold in the workplace made her sick. Mogollon defaulted but successfully moved to set aside the resulting judgment; it then won summary judgment based on the statute of limitations.. Wyckoff appealed both rulings; the court affirms.

On appeal Mogollon argued that the Court of Appeals could not consider the order setting aside default because it was an unsigned minute entry. But there was a final judgment – the summary judgment – and so the court takes jurisdiction of all related orders.

Mogollon also made an abatement argument regarding delay in serving the Complaint but had forgotten both to plead it and to argue it in the trial court.

(In other words, much of Mogollon’s brief was wasted in useless silliness. But what else is new? Courts have been complaining about this sort of thing for at least 100 years. Criticize judges as you will but the poor saps must spend much of their time reading brain-dead arguments that some lawyer charged a lot of money to make. Will the profession never have a serious talk with itself about why lawyers, even respected lawyers, continue to do these things?  You know the answer to that.  If the medical profession operated with the efficiency of the legal profession, we’d all be dead.)

Wyckoff argued that the trial court was wrong in finding the default judgment void, not voidable. But guess what? She hadn’t argued it below.

On the statute of limitations Wyckoff argued the discovery rule. The court spends a long paragraph explaining what that novel, abstruse concept is. In then tells us that “Arizona courts have not addressed the issue of the discovery rule in the specific context of toxic mold exposure.” But the court has read a lot of mold cases from other jurisdictions and “a general rule emerges”: the cause of action accrues when “the claimant experiences physical signs and symptoms of illness, knows that she has been exposed to mold, and knows that mold may present a health hazard.”

So, is this a special rule for mold? If so, why does mold need a special rule? How does it differ from the usual discovery rule? Or is it merely the application to these facts of our normal discovery rule? And if so, why not say that rather than pretend that mere Arizona law isn’t good enough for mold?

(The judges who read those brain-dead briefs always believe that their opinions are of higher quality.)

Although her doctors were at first unsure of the cause of her problems Wyckoff suspected mold even before she retired, which was more than two years before she filed. Judgment affirmed.

We’ll assume that the court published this as a reminder of the scope of its jurisdiction over final judgments, the unfortunate but more likely alternative being that it thought it was making some contribution to the discovery rule.

(link to opinion)

This opinion clarifies something about how to take default and then decides to throw a lawyer under the bus.

When a house burned Allstate interpleaded the claim payment because various parties disputed who should get it.  The other parties answered but the bank didn’t; Allstate took default. The bank eventually appeared and moved to set it aside, presenting evidence that its copy of the application for default wasn’t sent to it until weeks after Allstate’s default application said it was and after default had been entered. Allstate didn’t object. The other parties did; though they didn’t successfully dispute the bank’s claim of delayed notice they argued that the bank had ten days after receiving that delayed notice to answer and hadn’t done so. The trial court denied the motion; the bank appealed.

The Court of Appeals reverses. The trial court “erred as a matter of law by concluding that a delay in mailing the notice would not necessarily invalidate the entry of default and preclude a default judgment.” In other words, delayed notice invalidates the default. Rule 55 says that default will be effective ten days from the filing of the application. And at one point it characterizes its provisions as requiring “notice prior to the entry of default.” Therefore, “the notice must be provided either before, or simultaneously with” the filing of the application. “A delayed notice . . . does not comply with the terms of Rule 55(a).” The argument that delayed notice simply delays the ten-day grace period is “logical” but not consistent with the rule. If the notice is delayed then the application must be re-filed.

(We say that Rule 55 “at one point characterizes’” itself as requiring notice before entry because that part – 55(a)(5) of the present version – is a summary reference to other provisions that don’t specifically say that, though they may certainly mean it. That kink in the rule was, as usual, not caught in its recent revision. But that revision was for bureaucratic convenience – adopting the Maricopa County practice of not requiring the clerk to do anything on default – so it is of course entirely understandable that no thought whatever was given to mere legal issues.)

The court says that when the bank brought up the discrepancy about the notice date Allstate’s counsel, as part of her duty of candor, should have told the court what she knew about that rather than “simply” not object to the motion. The court – deliberately, it seems – suggests that not objecting was an admission that something was wrong with the default application when a moment’s thought would show that Allstate wouldn’t, for reasons both practical and legal, contest the motion in any event. As for counsel’s duty, we wonder whether a party argued that or whether it was just the court’s churlish idea. What is a lawyer supposed to know about when some piece of paper actually went out of the office? Was she supposed to make an investigation to support one side or the other on a motion her client clearly didn’t care about and wasn’t involved in?  The court admits that the parties didn’t start arguing about the date on her default affidavit until appeal – so how did she have a duty to give testimony on a non-issue that wasn’t before the court?  And if the parties framing the issues wanted more information from Allstate, what stopped them from getting it?

(link to opinion)

This res judicata case could have been short, clear, and helpful.

Tumacacori sued to establish a prescriptive easement over a Union Pacific line. UP moved for summary judgment. The trial court granted it and the Court of Appeals affirmed. After that Tumacacori moved to amend its Complaint to assert other easement theories. The trial court denied the motion; Tumacacori appealed.

The Court of Appeals affirms. It is black-letter law that a final judgment makes all claims that were or could have been brought res judicata. Tumacacori tried to argue that res judicata doesn’t apply in equity, which the court dismisses easily.

But the court doesn’t seem to feel that that’s quite enough so it adds other things, none of which are useful.

For example, the court points out that Tumacacori did not file a Rule 60(c) motion. But what difference would that have made? On what basis could the trial judge possibly have granted that motion? Its true that setting aside the judgment can be a way around res judicata but that isn’t the court’s point – it mentions 60(c) “preliminarily,” before even starting its res judicata analysis. So what is the court’s point? Goodness knows.

Tumacacori argued that the judgment was on the issue of prescriptive easement. The court points out that UP’s summary-judgment motion also dealt with easements by implied necessity. But so what? The court admits that its opinion in the first appeal talked about prescriptive easements. The point of res judicata – i.e., the point of this case – is that it doesn’t matter what was actually argued since everything that could have been argued is also concluded.

UP used the term “res judicata.” The court includes a footnote to say “We use the more modern term ‘claim preclusion’ instead of res judicata.” The court is apparently proud of that, which is depressing. The movement by law professors to replace the established terms “res judicata” and “collateral estoppel” with the the bland and confusing “claim preclusion” and “issue preclusion” – which are less, not more, descriptive of the concepts – has been followed in the practice largely by those whose grasp of what any of them means is sometimes less than clear. We wish the courts could be prouder of knowledge than of modernity.

(link to opinion)