Kline v. Kline (CA1 5/21/09)

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Reading cases on law you don’t practice can teach you things. Whether they’re the right things is another question.

This is, just like it sounds, a divorce case, which we don’t usually read. Wife got spousal maintenance based on an Amended Complaint she didn’t serve; the Court of Appeals, after some tendentious meandering, decided that she came close enough.

The interesting part is Footnote 5. It tells us that there is, after all, despite years of people’s thinking and being taught the opposite, a difference between a “general” and a “special” appearance. How did the court conclude that? First, because In re Hindi, 71 Ariz. 17 (1950), which had been cited to the court for the proposition that there was no difference, “predates the effective date of the Arizona Rules of Civil Procedure.” Second, because later cases had used the phrase “general appearance.”

How do courts make mistakes like this? We’ve said it before: footnotes too often contain things that have only been half thought through. In this case, the footnote resulted from something said at oral argument, which may mean that it was an afterthought to an opinion that had already been researched and drafted – and which, perhaps, nobody wanted to have to change too much. (Yes, we know we just asked for a footnote in another case but that was a brief, explanatory footnote, not a footnote attempting substantive legal analysis.)

(Don’t understand why the court was wrong? Here’s the deal:)

In In re Hindi, our Supreme Court took judicial notice that there was no difference under the “new” rules between a general and a special appearance. What rules was it referring to? The tip-off should have been the authority it cited for that conclusion: Moore’s Federal Practice. Moore’s has always been about the federal rules of civil procedure, the rules we adopted and have now, which had been promulgated federally in 1938. In re Hindi, in other words, was referring to our present set of rules, not to some earlier set.

The Rules of Civil Procedure, as rules, were adopted in Arizona in 1949, and in large part had been incorporated as statutes in A.C.A. 1939. If you look in the rule book nowadays – which is apparently all the court did – it does say that the rules were effective in 1956. What happened, though, was that the rules were re-adopted in 1956 when the A.R.S. replaced the A.C.A. 1939. A bit tricky, perhaps, but don’t we expect courts to be able to handle these things?

The court also failed to consider that the present rules,  which it suggests established a difference between types of appearance where none had existed before, do no such thing. No rule defines general versus special appearances (except the very recent Rule 5.2 on “limited” appearances in vulnerable-adult matters).

Why have courts occasionally used the phrase “general appearance?” As Kline itself acknowledges, “general appearance” means the same as “appearance.” Lawyers and judges sloppily interchange phrases like that all the time.  That “general appearance” means the same as “appearance” logically  suggests not that there is a “special” appearance but that there isn’t. If they mean the same then the broader “appearance” subsumes the narrower “general appearance,” not the other way around.

(We deliberately left out one reason the court didn’t think In re Hindi applied: because it “has never been cited for this proposition.” Precedent can’t be cited until its been cited? Don’t get us started . . .)

Holland v. Hurley (CA2 5/19/09)

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NOTE: THIS OPINION HAS BEEN ORDERED DEPUBLISHED

This is a personal-jurisdiction case involving eBay.

Holland, an Arizona resident, bought a car on eBay from Hurley, a Michigan resident. When Holland got the car he was dissatisfied. He sued Hurley in Pima County. Hurley argued that Arizona had no personal jurisdiction over him; the trial court agreed.

So did the Court of Appeals. In a labored analysis, the court held that putting something up for sale on eBay does not itself constitute purposeful contact with Arizona.  This is consistent with earlier cases about interstate sales, of which – except for the eBay angle – this is a fairly typical example.

The court did have to distinguish Uberti v Leonardo, 181 Ariz. 565 (1995), which held that a foreign manufacturer’s extensive nationwide marketing justified jurisdiction in Arizona because the manufacturer otherwise wouldn’t be subject to American law (or so said our Supreme Court). That concern didn’t apply here because Holland could sue Hurley in Michigan.

That is enough to dispose of the case but the court also wanted to write about cases involving eBay and other web sites. There are cases (in other jurisdictions) that draw distinctions based on how much interactivity a site’s owners set it up to offer. They don’t apply here, even if they were the law of Arizona, because Hurley doesn’t own or control eBay.

The mere fact of selling on eBay, then, does not produce jurisdiction. The opinion makes allowances for other cases in which a seller does additional things that show purposeful contacts with Arizona.

In a very brief concurring opinion, Judge Espinoza suggests that Uberti could indeed apply to a domestic seller who uses eBay to sell to all States. “[T]hat would appear to be the whole point of utilizing the boundless eBay cyber marketplace.” He joins because, he says, that conclusion can’t be drawn from the “skeletal facts” available on this appeal. But if that’s the “whole point” of using eBay, what other facts need there be? If the concurrence doesn’t mean that it is basically a dissent, its hard to know what it does mean.

At the end of the opinion the court upheld the trial court’s ruling preventing Holland from doing discovery to supplement those “skeletal facts.” This is not publishable stuff, so it must be proof that the court reads us and agrees that it shouldn’t really be splitting one appeal into more than one opinion.

Howell v. Hodap (CA1 5/12/09)

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This is a res judicata case that discusses the effect a federal action has on a state action.

Hodap was a member of the Flagstaff version of those paramilitary anti-drug police units. He and other officers broke into the Howells’ home but apparently didn’t find enough to support a drug charge. (Mr. Howell shot at the officers, which earned him charges for attempted murder and aggravated assault, which were eventually dismissed.) (The opinion lingers lovingly on the details of the break-in; it tells us, for example, about the “halogen tool on the lip of the security door.” We’re afraid to ask why anybody at the court thought that an important fact.)

The Howells filed suit in Yavapai County for violation of their state constitutional rights, state statutory rights, and various torts. They then filed suit in federal court for violation of federal constitutional rights and statues. The factual allegations in both cases were essentially identical.

In the District Court, the Howells lost summary judgment on some of their counts and lost a jury trial on the others.

The defendants then moved for summary judgment in the state court action based on res judicata and collateral estoppel, which motion the court denied. Some of the plaintiffs’ causes of action were thrown out by other motions; others went to trial. The jury found for defendants on all, except that they awarded Mrs. Howell $10,000 for false arrest.

On appeal , the defendants argued that the trial court should have granted their res judicata motion. The Court of Appeals agreed.

The parties agreed that the two cases involved the same parties and that the federal case had gone to judgment on the merits. That left only one element of res judicata to be decided: whether the suits had involved the same claims and causes of action.

The conclusive effect of a federal case is, the court said, controlled by federal law. In the Ninth Circuit, claims are the same if they “arise out of the same transactional nucleus of facts.” For some reason, the court cites a Ninth Circuit case that sets out other elements as well, then cites still more Ninth Circuit cases to establish that the “transactional nucleus” test is the one that really counts. (How, you ask, does a “transactional nucleus” differ from a “nucleus?” We wish courts would ask – and answer – that sort of question.)

The plaintiffs argued that their state constitutional rights were broader than their federal rights. But res judicata depends not merely on what claims were brought but on what claims could have been brought. The state causes of action could have  been brought as pendant claims in the federal case, so the resolution of that case precluded the state claims as well.

This was an example of those two-headed cases – one opinion that’s published and one that isn’t. The unpublished opinion discusses interesting issues, some tied fairly closely to res judicata; it would be interesting to know why the court split one part of the analysis out as a separate opinion. The memorandum opinion also addresses to some extent the other issues raised by filing two lawsuits, which some lawyers appear to think clever.