McCleary v. Tripodi (CA2 8/29/17)

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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)

Sign Here Petitions v. Chavez (CA 1 8/29/17)

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About defamation and free speech.

Plaintiff and Defendant were rival petition-passers. Plaintiff failed to get a referendum on the ballot because it got caught using felons to pass its petitions. When Defendant cackled about this on Twitter Plaintiff sued him for defamation. (The factual details are mostly unimportant and in any case should, as with so much that happens on Twitter, have been as embarrassing to the tweeter as to the tweetee. We will just mention, to give you an idea of the intellectual and emotional depth of the dispute, that one of the tweets at issue was, in its entirety, “chicken dinner.”) Defendant moved for summary judgment; Plaintiff responded with the lawyerly argument that 1) the statements were “indisputably false” and 2) there was a factual dispute about whether they were true. The trial court granted the motion.

The Court of Appeals affirms. “We . . .  hold when ruling on a motion for summary judgment in a defamation case: (1) the superior court must act as gatekeeper protecting the right to free speech from meritless litigation to avoid a chilling effect on free expression; (2) in that role, before allowing a defamation claim to proceed to trial, the superior court must first determine whether a statement is capable of bearing a defamatory meaning by considering all of the circumstances surrounding the statement; and (3) in doing so, the superior court is to evaluate the circumstances surrounding an allegedly defamatory statement from the point of view of a reasonable person.” All of that has been said before (though whether it all fits together in this context is another matter) and isn’t really the holding as much as a statement of principles on which the opinion relies.

“Because this case raises issues concerning the right to free speech, we conduct an ‘enhanced appellate review.’” The courts keep saying that; we wish they would some day tell us what that is. The phrase, taken from U.S. Supreme Court public-figure and media cases, was introduced into Arizona law by someone for whom deep-sounding meaninglessness was a way of life. By what objective standard can we distinguish “enhanced” review from the plain, old, mediocre review given your case and mine? Could the Supreme Court reject such an opinion for the specific reason that the Court of Appeals’ review wasn’t “enhanced”? If so, how could it tell? If not, what meaning does the phrase have?  But this opinion is careful to say more than once that it is using “enhanced” review. How do we know? Because it says so.

The court then wanders off to discuss commercial speech for awhile. Defendant’s tweets, you see, might simply be seen as ads for himself. But “when speech has a mixture of commercial and non-commercial elements, the presence of the former does not diminish the constitutional protection of the whole.” So this stuff makes no difference, much less being dispositive, but the court wants to be sure you know that it considered this useless nuance. Maybe that’s part of “enhanced” review.

The court then decides that Defendant’s tweets were, to the extent not substantially true, exaggerations not defamatory in context.

If you thought there was nothing novel here, though, you skipped footnote 3. We agree that skipping the court’s footnotes is harmless 99% of the time but here it is one of the more important parts of the opinion (possibly the only important part). The court had been relying on First Amendment cases; what about the Arizona Constitution? “Arizona’s declaration of rights ‘came essentially verbatim from the state of Washington’s constitutional convention of 1889.’” So the court looks at a Washington case holding that protecting free speech is a two-step process. First, the trial court determines as a matter of law “[w]hether the allegedly defamatory words were intended as a statement of fact or an expression of opinion.” Then it determines “whether [the] statement is actionable by considering the ‘totality of the circumstances.’” The fact/opinion distinction isn’t quite that simple, as cases cited in this opinion point out. And the court doesn’t quite explain whether Washington’s test – now Arizona’s test – is the same as the First Amendment test or something slightly different.

Somebody tried hard on this one, which was clearly intended to be an important and authoritative statement. But you’d be better served reading Milkovich from the U.S. Supreme Court and Turner from ours to get a handle on this law.

(Opinion: Sign Here v. Chavez)

Sirrah Enterprises v. Wunderlich (8/9/17)

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We had decided that this case was too boring to blog and even tweeted that. But there are aspects of the opinion we couldn’t stop thinking about. We’ll skip the boring parts.

The issue here is “whether the successful party on a claim for breach of the [implied] warranty [of habitability in a residential construction contract] qualifies for an attorney-fee award under either a contractual fee provision or A.R.S. § 12-341.01.” The court answers yes, under both, “because the warranty is imputed into the construction contract, it is a term of the contract. Any claim for breach of that term arises from the contract.”

That’s what the trial court said and that’s what the Court of Appeals said. So why take review?

To make a distinction. The implied warranty of habitability does not create an implied contract; instead, the warranty “is a term imputed by law into express contracts.”

And why is that important? Because under Woodward (1984) the warranty can be enforced by subsequent purchasers, which therefore now means that they can enforce “the express contract”, which means that subsequent purchasers can get attorneys fees. The court disapproves a line of Court of Appeals cases to the effect that claimants not in privity under the original contract were suing under something that was merely implied by law, not the original contract, and therefore couldn’t get fees.

Problem 1: These plaintiffs were the original purchasers, in privity. It seems the court has taken a case and published an opinion for the purpose of addressing an issue the case does not present.

So what? Why shouldn’t the court clarify the law when it has a chance? The reason why not goes to the heart of its function. Ever since the Court of Appeals was created the theory has been that, for several reasons, the Supreme Court doesn’t reach for issues; it doesn’t rule on them unless they’re squarely presented. That’s why its refusal to accept review cannot technically be seen as approval of a Court of Appeals opinion. But this case suggests the opposite; taking review because the court disagrees with dicta means that when the court doesn’t take review it does agree with it. The court isn’t supposed to be in the business of doing either, shouldn’t be signaling that it is, and shouldn’t want to.

If the proper legal analysis necessary to resolve this dispute – whether by affirmance or reversal – were different that what the Court of Appeals employed then of course it would be appropriate to say so. But the lower courts resolved this case correctly and, as to the parties before them, for the correct reasons. Issues about people not in privity were not presented at all, much less squarely. (These parties mentioned them in the course of their arguments but the bright folks at the Supreme Court know that that’s an entirely different thing.)

(But what if you’re a conscientious Supreme Court Justice and you just can’t sleep at night knowing that some people might not be recouping their fees because you haven’t yet had a chance to announce that you disagree with the people downstairs? Then you take the case for the purpose of more-or-less ostentatiously not ruling on the issue: you specifically say that you’re not ruling on it because the case doesn’t raise it, for example, or make some other noticeable remark, or even vacate only certain portions of the Court of Appeals’ opinion. Give we mere lawyers a little credit, we ain’t that dumb; we’ll take the hint and the next time the issue comes up bring you a case.)

Problem 2: The court then doubles down on looking after the interests of parties not before it.

So far it has explained why parties not in privity can recover under the contract’s fee provision. But can they use 12-341.01? Yep, Its simple: the statute “does not have a privity requirement for claims ‘arising out of’’ a contract” so “just as a claim asserted by an original homeowner in privity with a builder can arise from contract, so too can a claim asserted by a subsequent homeowner.” (Citing only one case, and that as a “cf”, suggesting that that the authority for this is slim-to-none or that no one bothered to look very hard.) How this airy conclusion fits with the substantial body of jurisprudence on the statute, and whether the legislature really intended to allow contract fees to people who were never parties to the contract, would make for an interesting analysis. It might even produce the same result. And the court might have gotten good briefing on that had it waited for a case in which the answer mattered to the litigants.

(Opinion: Sirrah v. Wunderlich)