This is a quiet-title action arising out of some probate shenanigans but we won’t be reviewing that part. Instead we’ll look at the appeal.

The trial court issued a minute entry granting summary judgment in favor of Plaintiffs. Defendant filed two motions to reconsider and then, before they were heard, appealed the minute entry. Plaintiffs moved to dismiss the appeal since it was screamingly defective. But instead the Court of Appeals reacted by staying the appeal until the trial court could sign a judgment. Now it issues this opinion affirming.

The court concludes its summary of the proceedings below by saying “We have jurisdiction for the following reasons. A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1); Ariz. R. Civ. App. P. 9(c).” (The period after “reasons” is in the original but we won’t make an issue of a simple typo because we can understand how the difference between a colon and a period can slip through the edits, reviews, and corrections that are such an important part of the court’s process.) But next the court points out that it has a duty to check its jurisdiction and then pends four pages explaining why it has jurisdiction. So the sentence with the typo was apparently boilerplate and doesn’t really fit this opinion. What did we say about edits and reviews?

But it does make you wonder. If the jurisdiction issue is so simple that it could be solved with the usual kick-it-back-to-the-trial-court-for-a-signature routine then why does it merit extended discussion here? If it isn’t, did the court think it through first or was its act the knee-jerk reaction of a staff attorney or other functionary and this opinion an after-the-fact justification?

The appeal was obviously premature. The first question is whether Barassi applies. The answer is that it can’t because there were two pending motions.

So the question becomes the meaning of Rule 9(c) (premature appeal treated as filed on day of judgment). Following Camasura (App. 2015), the court decides that it does apply to save the appeal. The order appealed from disposed of all issues and “the trial court ultimately entered final judgment upon it.” And what of those pesky motions to reconsider that came between the order and the judgment “ultimately” entered? They don’t matter because they didn’t change the issues, just the arguments. And because the trial court “summarily” denied them (we’re not told what exactly that meant in this case) the original order was the same one judgment was entered on.

Oh. Okay. So a motion that doesn’t modify the issues invokes 9(c) but one that does doesn’t. As long as its denial was summary. These things will always be clear in practice. After all, as the court points out, one of the reasons for rules like 9(c) is “to accommodate a ‘litigant’s confusion’ about when to file.” We would have suggested that accommodating confusion simply creates more of it but that’s just us.

One thing we’re not clear on, though. The trial court denied the motions for reconsideration after the appeal was filed and before the Court of Appeals revested jurisdiction to get a final judgment. So how did it have jurisdiction to rule on them? And if they’ve never properly been ruled on, how can an appeal lie? Or does 9(c) now mean that a premature appeal is not an really an appeal at all, that it has no effect until judgment is entered? But if that’s true, how does the Court of Appeals have jurisdiction that it must “revest” in order to get a judgment?

In the words of an immortal: Go away, kid, you bother me.

(Opinion: McClearly v. Tripodi)

The court discusses whether an arbitration agreement is unconscionable and allows discovery on the issue.

Plaintiff’s father died in a nursing home. Plaintiff sued for, among other things, violation of the Adult Protective Services Act. Defendant moved to compel arbitration, the father having signed an arbitration agreement upon admission. Plaintiff argued that the agreement was substantively unconscionable and that discovery should be allowed on whether it was procedurally unconscionable. The trial court granted the motion; Plaintiff appealed.

On substantive unconscionability the Court of Appeals affirms.

Plaintiff argue that the agreement unreasonably restricted discovery. It allowed standard paper discovery but with limits different from the rules of procedure, allowed depositions of six fact witnesses and two experts, and such other discovery as the parties or arbitrator thought “necessary and proper.” “The amount of discovery is not so low and the burden to obtain more so high that the Agreement denies litigants the opportunity to conduct discovery sufficient to adequately arbitrate [sic]  . . .”

Plaintiff also argued that the agreement was unfair because the arbitration agency used by Defendant – and thus arguably financially biased toward it – supplied the list of arbitrators. But the parties could agree to use other arbitrators and, if they didn’t agree, could use the each-pick-your-own-and-they-pick-a-third process. This was not “fundamentally unfair.”

On procedural unconscionability the court reverses. Plaintiff had no evidence of it but said that was because his father was dead so he needed to do discovery to find out if there was any. The court agrees. When he signed the agreement Plaintiff’s father was “a man requiring in-patient care because of serious health problems . . . who died approximately one month later.” That’s enough for the court to decide, analogizing to summary-judgment cases, that Plaintiff should have a chance to explore the issue.

“On the issue of procedural unconscionability, we vacate and remand . . .” Well, no. “Vacate” is something the Supreme Court occasionally does to opinions from the middle courts but not something they can do to this trial court’s ruling. Its reversed but its still on the record. Odd – telling, perhaps? – that such a mistake got through.

(Opinion: Gullet v. Kindred Nursing Centers)

It will, we hope, surprise no one that a city can’t make ordinances or contracts that tell the Superior Court what its jurisdiction and rules should be.

Plaintiff contractor had a claim against the City arising out of a construction contract. The contract said that, pursuant to the City’s Procurement Code, Plaintiff could submit its claim to various levels of the City bureaucracy and then, if they denied it, file a special action within thirty days. The City denied Plaintiff’s claim; instead of filing a Special Action Plaintiff filed a Notice of Claim and then sued the City. The City moved to dismiss for lack of subject-matter jurisdiction, which the trial court granted.  Plaintiff appealed.

The Court of Appeals reverses.

First, though, it corrects something it said in an earlier case. Lambert (2009) was another Tucson contractor case; that contractor did file the “special action” and won it; the City appealed. The opinion – in one of those throw-away lines that nobody pays much attention to, apparently not even the court – based its jurisdiction on what’s now 12-2101(A)(1). But that requires that the action have originated in the Superior Court, which – our Supreme Court decided in 1930 – an action to review another tribunal’s decision didn’t. Because of Lambert’s questionable jurisdiction, “we do not rely on that case as precedent.” (Strange that nobody at the court caught the issue then. In any event, this illustrates one reason why rote statements of jurisdiction – or rote statements of anything, and our courts do a lot of things by rote – are a poor idea.)

Plaintiff argued that the City’s scheme violated due process. The opinion mentions the argument but does not address it since it can decide the case more narrowly.

“Only statutes and court rules govern special actions.” “[A] city has no authority to limit the jurisdiction of the state’s courts” unless a statute lets it. The City’s Procurement Code at that time was modeled after the State’s, which says that cities may adopt it. But under the State code claims decisions can ultimately be reviewed under the Administrative Procedures Act, which doesn’t apply to cities. The City didn’t argue that the State Procurement Code, by allowing cities to adopt it, modified the Administrative Procedures Act to allow the same thing (and the opinion mentions the idea mostly to cast doubt on it). What the City did didn’t even conform to the State code, which provides for review at  two separate levels of government. Under the City’s system, at least in this contract (the opinion suggests that it might have been a departure from the norm) final “review” of a contract claim against the City was done by the City bureaucrat who signed the contract.  

The City argued that its procedure was authorized by the statute that says, basically, that claimants must exhaust administrative remedies before asserting a claim against a government entity. But that statute “merely establishes the time for filing a notice of claim,” it “does not give cities authority to establish unlimited administrative-claims processes.”

“At oral argument, the City suggested its administrative review process is enforceable as an arbitration agreement because the parties mutually agreed to be bound by this alternative dispute resolution process.” (Whether or not it’s a great argument it’s the City’s best and the court spends the most time on it. Why was it left for oral argument? The opinion suggests in several places – and perhaps the quoted sentence was intended as one of them – that the appeal was not particularly artful.) “The Procurement Code itself distinguished the process here from arbitration.” And as an arbitration agreement the contract would be unconscionable because the City alone picks the “arbitrator” and because the City could accept, reject, or modify the “arbitrator’s” decision.

The court also mentions, if only to rule out, the possibility that the City’s procedures might have had statutory certiorari in mind. But that’s discretionary and has no time limit; ordinances and contracts purporting to change that are invalid.

The City also argued that under cases such as Hurst (App. 1979) its administrative decision must be deemed “just, reasonable, and lawful” and therefore given conclusive effect absent special action under the contract/ordinance. But those cases involved statutes that specifically permitted the decision and provided for judicial review.

Finally, the City argued that Plaintiff did not exhaust administrative remedies, as required by the statute mentioned above. The court disagrees. Plaintiff did everything required except file the “special action.” Even were the ordinance and contract valid, a special action is not an administrative remedy.

Reversed and remanded for further proceedings – i.e., litigation of the contract claim.

(Opinion: Falcone Bros. v. City of Tucson)