Madison v. Groseth (CA1 6/5/12)

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This will interest those involved in foreclosures but for our purposes is significant as a useful discussion of the nuts and bolts of handling a vexatious litigant.

Factually it is yet another story of a debtor who borrowed money to buy a home, couldn’t repay it, and then filed everything she could think of pro se to prevent foreclosure. When she eventually lost, the trial court declared her a “vexatious litigant” and ordered her not to file further lawsuits about the property without court permission.

The court tells us in a footnote that such things are normally done by unappealable administrative order but that since this order was in a judgment (dismissing Madison’s Complaint) it is “essentially” an award of injunctive relief, which is appealable. Sometimes court are very strict about jurisdiction; other times, it seems, “essentially” having it is good enough.

A court has inherent authority over vexatious litigants but this opinion adopts a Ninth Circuit case (DeLong 1990) establishing procedural requirements. The trial court has to give notice and an opportunity to be heard, make a record for review, make “substantive findings as to the frivolous or harassing nature of the litigant’s actions,” and tailor the order narrowly.

The third step was at issue here and the Court of Appeals decides that the trial court got it wrong. Although it apparently made findings about all the lawsuits she had filed, it didn’t specifically find that any or all were frivolous or harassing. “[A] vexatious litigant order must rest on more than a recitation of the number of previously filed lawsuits.” In fact, it impliedly found to the contrary, at least about this particular lawsuit, by denying the defendants’ Rule 11/12-341.01C motion for fees. The court affirms the dismissal of Madison’s lawsuit but reverses the “vexatious litigant” order judgment.

Sometimes we like to think we have some effect on opinion writing, more often we realize we probably don’t, and once in a while we get paranoid and think that courts throw in things we won’t like just to spite us. One or two of the nine footnotes here might possibly be missed if they weren’t there. If jurisdiction is important enough to mention then its one of the more important things in the opinion and shouldn’t be stuck in a footnote. But what, for example, can possibly be the need, after mentioning in passing that this pro se plaintiff sued, among other things, for “conversion” of her home, for a footnote saying (and citing a case) that conversion applies only to chattels? The court sees the problem and so throws in a justification: “to avoid future confusion.” But who will be or has been confused? As for the people in this case, its over – and if it weren’t, if the case were going back on remand, then the court wouldn’t dare mention it. Does the court really think that somebody is going to read this case in the future and decide that it changed the law of conversion? Or is the court going out of its way to augment Ms. Madison’s legal education (for the next time she files one of those non-vexatious lawsuits)? And if it thinks that mentioning this allegation that had nothing to do with anything before the court will confuse, why mention it?

(link to opinion)

Catalina Foothills Unified School District v. La Paloma (CA2 5/30/12)

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Once in awhile we have suspected an appellate court of taking a questionable appeal mostly because the parties called an order a “judgment.” But it doesn’t always work.

The school district sued to condemn a roadway, for access to a new school, from the homeowners’ association that owned it. After dismissing the Complaint without prejudice and allowing the district to re-file on a slightly different theory, the trial court granted immediate possession. The homeowners filed a special action (such orders are not appealable) but the Court of Appeals declined to hear it. Later, the trial court granted the district’s motion in limine to exclude one of the homeowners’ damage witnesses, making some findings and conclusions in the process (the opinion calls them all findings, an issue we’ve alluded to before). The homeowners then submitted a “proposed partial judgment,” with 54(b) language, which incorporated by reference findings/conclusions made in connection with the earlier rulings but didn’t actually grant relief or purport to conclude a claim. The trial court signed it, though, and the homeowners appealed.

So how does the Court of Appeals have jurisdiction over a non-appealable order lashed to other non-appealable orders? It asked the same question and called for supplemental briefs. Both parties wanted the court to hear the case (although a footnote suggests that one of the likely reasons for that – the dismissal of the original Complaint – wasn’t included in the appeal).

They first argued that the “judgment” was appealable because of the Rule 54(b) language – in other words, its appealable because the trial court said it is. The Court of Appeals says that no, it isn’t, that it reviews 54(b) certification de novo, and that this certification was wrong.  The opinion doesn’t admit this but because trial judges nowadays sign anything with 54(b) language unless one of the parties objects to it, the appellate courts have a limited amount of respect for it. 

The parties then argued that this situation is covered by §12-2101(A)(6) (judgment determining the rights of the parties and calling for further proceedings to determine amount of recovery) and Bilke (2003; the statute means that a final liability decision can be appealable). The district argued that Bilke overruled Court of Appeals decisions holding that orders of immediate possession aren’t appealable. But the Supreme Court had also, in Rogers (1974), held orders of immediate possession unappealable and Bilke wasn’t a condemnation case and didn’t purport to change that law.

The court then declines to hear the matter as a special action. It does so remarkably politely, given that it had turned these people down once already and they responded by trying a dodgy “appeal.”

(link to opinion)

Kool Radiators v. Evans (CA1 5/31/12)

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The facts of this case are unimportant; it is published to announce a change in a point of appellate law.

The trial court dismissed Kool’s Complaint without prejudice and awarded Evans fees and costs. Kool appealed the dismissal and the fee award.

The Court of Appeals first points out that a dismissal without prejudice isn’t appealable. That isn’t the change, though its something that the courts have to publish on every once in awhile since an amazing number of people filing appeals apparently don’t know the basics. A dismissal without prejudice isn’t a final judgment (unless for some reason, such as the statute of limitations, you can’t re-file).

The change is that the court next has to deal with Callanan (1982), in which it held that fee awards from dismissals without prejudice were appealable. The opinion announces that Callanan was wrong because nothing in 12-2101 authorizes such an appeal.

(So the court treats the appeal as a special action, accepts it, and grants relief. It concludes that the dismissal was wrong and so the fee award was also wrong.)

(link to opinion)