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@BV80 @Credator @Spikey

Here is my first draft response.

Let me know your thoughts.

 

attachicon.gifFirst Draft Defendant's reply to Plaintiff's response to MSJ_Redacted.pdf

After a quick scan, in light of keeping the judge from being annoyed (not sure this is possible), I might consider softening some items.

I might choose to let the court come to their own conclusions and fill in the thought that opposing behavior was flagrant, hypocritical, etc. I would paint a very clear picture leaving them little room to conclude anything otherwise.  When the court fills in their own descriptive words it might carry a bit more weight. FAIK.

I may choose to use something similar to "this is clearly contradicted by the record before this court" instead of "this is a false statement".

I might prefer telling the court that they should do something instead of must do something.

I might ease the judge's mind by stating that, "based on blah blah blah, the court should grant the defendant's motion to dismiss and as the record stands it would not be a reversible error for the court to grant defendant's Motion to Dismiss."

Not knowing the reasons why the judge denied the plaintiff's MSJ I may be reluctant to suggest they were attempting a 2nd bite at the apple. It could have been a denial simply based on a rule/deadline and the merits of the MSJ have never been reviewed by the judge.

 

Of course, with my priority placed on winning and not focused on efforts to not to tick off or annoy the judge, I believe the reply/response good enough as drafted. With the exception noted below.

 

See Arizona Superior Court opinions from DDS Financial Group, LTD v. Deborah Walrod, 2009

and LVNV Funding v. Leslie Thompson, 2008.

Of course these superior court decisions are not law. I understood the AZ rules to prohibit the use of non-published/memorandum decisions. Here is an argument made in 2006 in support of changing the rules: http://omlaw.com/uploads/publications/Pros_Proposed_Make_Memoranda.pdf While I cannot vouch for this individual's opinions/competence and have not read the article it should be a good start on exploring the issue. I don't know what the current rules are and have not looked at them recently.

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@Harry Seaward

 

I agree with Credator.

 

One other thing:  On page 8, you state:

 

"Plaintiff's Cross-Motion for Summary Judgment introduces absolutely no new issues from its first Motion for Summary Judgment..."

 

I'm not sure that "issues" is the correct word.  A MSJ must show that there are no genuine issues of material fact.  Therefore, they have to show that there are NO issues left to be resolved.

 

A better word might be "arguments" and/or "facts".   The Plaintiff's 1st motion was denied, so that would imply that there was a genuine issue(s) of material fact(s) that needed to be resolved.  In other words, they didn't prove that there were no issues of material fact.

 

Their arguments in support of the 2nd MSJ are no different from their arguments in support of the 1st MSJ, and they've offered no new evidence.   Therefore, those same arguments are not sufficient to show that there are now no genuine issues of material fact.

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@BV80 @Credator @UCL @Spikey

Ok, here is the second draft with suggested changes.

 

I also added in a Section IV to bring to the Court's attention that Plaintiff has not responded to my hearsay objection other than to claim an "independent legal significance" theory.  If you can at least look this part over and let me know if it needs any work.

 

Thanks!

 

Second Draft Defendant's reply to Plaintiff's response to MSJ_Redacted.pdf

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@Harry Seaward

 

I think you've done a great job.  The only thing I might do is explain just a bit more how their arguments were insufficient to show that there were no genuine of material fact the first time around, so those same arguments should not now be considered sufficient to that no genuine issues exist.

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Since I have not filed an MSJ against another party (I usually prefer discovery as a plaintiff and as DC defendant it seems too uphill for me to file a winning MSJ) I am trying to wrap my head around MSJ vs. cross-MSJ on the same claim with each side alleging that there are no material facts in dispute.

 

Justice court Rule 129 ( c) appears to me to require a statement of facts with affidavit/exhibits and a memorandum of law for an MSJ response. If there was a defendants separate statement of facts in response to the plaintiff's cross-MSJ uploaded on the thread I did not see it.

 

17B A.R.S. Justice Court Civ.Proc.Rules, Rule 129

c. Content of a summary judgment motion or a response; required notice. A summary judgment motion must include:

(1) A statement of facts, with each of the facts stated separately in numbered paragraphs or numbered sentences. A statement of facts must be supported by affidavits, exhibits, or other material that establishes each fact by admissible evidence.

(2) A memorandum of law that summarizes the issues, provides legal authority in support of the motion, and describes why the judge should grant the motion.

A party who files a motion for summary judgment must include the following notice at the beginning of the motion:

“This motion asks the judge to rule against you without holding a trial. You have a right to file a written response to this motion. Your response must be filed within thirty (30) days from the date this motion was served. Your response to the motion must include:

“(1) A statement of facts, with each of the facts stated separately in numbered paragraphs or numbered sentences. A statement of facts must be supported by affidavits, exhibits, or other material that establishes each fact by admissible evidence. It is not enough for you to simply deny facts. You must present evidence that shows a genuine dispute of the facts.

“(2) A memorandum of law that summarizes the issues, provides legal authority in support of your position, and describes why the judge should deny the motion.”

Notwithstanding Rule 128(e), the failure to file a response by a party who does not have the burden of proof on a claim or defense is not a sufficient basis for granting a summary judgment motion. [ARCP 56(
c), (e)]

 

I would want to make sure that I am in full compliance with the motion practice rules of justice court. I am not versed in their rules and how they compare with superior court.

 

The plaintiff calls their disputed statement of facts, "CONTROVERTING STATEMENT OF FACTS" perhaps that is a proper title in justice court IDK.

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Ok, this is what I'm headed out the door to file right now.  I am not certain when they filed their objection to my MSJ, but it looks like I may be a couple days late in getting this filed.  Hopefully the judge hasn't ruled and will consider this before he does.

 

Final Draft Defendant's reply to Plaintiff's response to MSJ_Redacted.pdf

 

@BV80 Thanks.  I have made the changes you suggested

 

@Credator You don't miss much.  :-)  I used the "incorporates by reference" language specifically so I didn't have to go through the hassle of re-creating what I had already done in response to their first MSJ.  I added "statements of fact" to the list of things I was incorporating to hopefully close that loophole.

 

Thanks again guys(gals?  I guess I don't really know, do I)!

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@BV80 @Spikey @Credator @Seadragon @UCL

There is the court order granting Plaintiff leave to submit its evidence at trial against my objections.  Something seemed strange about that and I couldn't figure out how I missed such a major thing.  I came across something and everything snapped into focus on this issue.

 

When Plaintiff filed their Objection to my MSJ, they submitted the signed order granting them leave to submit their evidence.  I started going back through my records and found that when the judge denied my MIL in November, he sent our respective proposed forms of order back with no signature.  A few days later Plaintiff filed a Notice of Lodging asking the judge to sign their proposed order.  I never heard anything more on this (never got a notice from the court, etc) and assumed the judge just didn't rule (which he has done quite often) so when they provided the signed order with their response to my MSJ, that was the first knowledge I had about this order being granted.

 

So I've got a Motion to Reconsider drafted on the granting of their MIL.  Let me know if you think this is a good idea and any changes I should make.

 

[deleted - see next post]

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After sitting on this for a couple of days, I contemplated the approach @Credator tries to get everyone to see, which is that winning a trial is not as important as making a record worthy of appeal.  I believe I have made a sound record thus far.  Asking the judge to reconsider his decision to overrule my hearsay objections now isn't going to change anything before the trial scheduled a few short weeks away.  I'll start objecting at trial and if he insists on prejudicing me at that time, all the more fodder for appeal.

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I've probably read 1,000 pages on the topic of cross-examination from top experts in the last year, for various reasons. Not that there's any substitute for real experience of course. But I wish I could convey all that wisdom to you somehow.

I also volunteered for a training camp of sorts for young lawyers recently. It was a bit painful to be honest. Over and over again, I watched lawyers violate the basic rules of cross examination, and pay for it, and not learn their lessons. Asking long questions. Arguing with the witness. Thinking they can force witnesses to say yes or no when they ask yes or no questions. Thinking they can have Perry Mason moments. Asking open-ended questions for some bizarre reason, giving witnesses the chance to expound and explain their own stories rather than yours.

Break down your questions into tiny micro-questions, to get the answers that will help you. One fact per question. Really: one, fact, per question. Don't expect them to agree with your conclusions. Instead, get them to agree to the micro-facts that you will later argue lead up to your conclusion.

Not: You're unqualified, aren't you?

Instead: You work at JDC, correct? Not at Chase Bank? You've never worked at Chase? Have you ever been to Chase headquarters? Have you been trained by a Chase employee on how Chase maintains its systems? Etc etc etc.

Good luck.

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Ok, everyone.  My MSJ was denied, Plaintiff's cross-MSJ was granted (their original MSJ was denied, remember) and the trial has been vacated.  As usual, no explanation was given.

 

It looks like it's on to appeal now, right?  No point in filing a motion to reconsider, that I can see.

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Ok, everyone.  My MSJ was denied, Plaintiff's cross-MSJ was granted (their original MSJ was denied, remember) and the trial has been vacated.  As usual, no explanation was given.

 

It looks like it's on to appeal now, right?  No point in filing a motion to reconsider, that I can see.

With no "explanation given" I would not even know what to provide the court via a motion to reconsider to guide it in vacating its order.

 

A motion to reconsider is not likely to be granted. I have been granted 1 of 3 and the granted one was based on a mistake that did not really leave the court an option to deny it.

 

If a proper appeal record has been made there is probably no reason to expend the effort on drafting and filing a motion to reconsider. If I needed to get something in the record and I could do so within the rules for a proper MTR I would consider filing one. Otherwise I don't see much ROI.

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With no "explanation given" I would not even know what to provide the court via a motion to reconsider to guide it in vacating its order.

 

A motion to reconsider is not likely to be granted. I have been granted 1 of 3 and the granted one was based on a mistake that did not really leave the court an option to deny it.

 

If a proper appeal record has been made there is probably no reason to expend the effort on drafting and filing a motion to reconsider. If I needed to get something in the record and I could do so within the rules for a proper MTR I would consider filing one. Otherwise I don't see much ROI.

Yeah, this is pretty much where I'm at.

 

I don't know what more I could have done to make a more "proper appeal record".  Hopefully I didn't make any fatal mistakes.

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Amazing. What a disservice to the public this judge has provided.

That said, he's done you a huge favor. The appellate court will be annoyed at him from the outset for failing to explain his reasoning. Also, MSJs for a plaintiff are STRONGLY disfavored in the law. MSJs are far easier to appeal than trials for that very reason.

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@UCL

Amazing. What a disservice to the public this judge has provided.

That said, he's done you a huge favor. The appellate court will be annoyed at him from the outset for failing to explain his reasoning. Also, MSJs for a plaintiff are STRONGLY disfavored in the law. MSJs are far easier to appeal than trials for that very reason.

 

After sleeping on this I had a few thoughts and questions.

 

One of my main interests in appealing was to get a reversal of the judge's unceremonious dismissal of my counterclaims.  There are also a few other motions by the plaintiff that the judge granted (like the one precluding me from raising hearsay objections to their business records) that I wanted to get reversed as well.  I'm assuming and hoping that I can include all of the unfavorable actions in my appeal.  Do you know if this will be the case or if I will be limited to only the MSJ?

 

Also, I have a concern that if the superior court reverses the judge's ruling and kicks it back to him, what's to say he's not going to do the same thing over again?  I know you said the appellate court (the appeal will be heard by the Superior Court) will be "annoyed" with him.  What is the significance of this?  They don't put him in a corner with a dunce cap or dock his pay or fire him, so why will he care if that court is annoyed with him?

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Amazing. What a disservice to the public this judge has provided.

That said, he's done you a huge favor. The appellate court will be annoyed at him from the outset for failing to explain his reasoning. Also, MSJs for a plaintiff are STRONGLY disfavored in the law. MSJs are far easier to appeal than trials for that very reason.

When a high school education is not on the list of requirements for a justice of the peace in AZ I am not sure that there is an intention to set a high bar for "public service". Perhaps saving expenses is the priority. Unfortunately I do not see how forcing appeals of erroneous decisions saves money. Perhaps the appeal volume is low enough that disservice to the public is a "smart" financial decision. IDK

 

For collection lawsuits the plaintiff routinely files an MSJ from my experience and reading. Those MSJs seems to be routinely granted. Often the granting is despite the law and can come from a competent and knowledgeable judge.

 

@UCL

 

After sleeping on this I had a few thoughts and questions.

 

One of my main interests in appealing was to get a reversal of the judge's unceremonious dismissal of my counterclaims.  There are also a few other motions by the plaintiff that the judge granted (like the one precluding me from raising hearsay objections to their business records) that I wanted to get reversed as well.  I'm assuming and hoping that I can include all of the unfavorable actions in my appeal.  Do you know if this will be the case or if I will be limited to only the MSJ?

 

Also, I have a concern that if the superior court reverses the judge's ruling and kicks it back to him, what's to say he's not going to do the same thing over again?  I know you said the appellate court (the appeal will be heard by the Superior Court) will be "annoyed" with him.  What is the significance of this?  They don't put him in a corner with a dunce cap or dock his pay or fire him, so why will he care if that court is annoyed with him?

I am unfamiliar with appealing to the superior court. I though I saw somewhere it was a trial de novo. With the court of appeals in AZ it is not a new trial but an appeal of a grant of an MSJ is de novo.

 

A denial of an MSJ would not normally be an appealable issue. If a superior court appeal (SPA) is a trial de novo perhaps that denial of an MSJ can be addressed on a straight appeal. A special action appeal is what I would normally be looking into for a non-final decision that I wanted to appeal. Another process I would look into for n MSJ denial, if the SPA is not  trial de novo, is to move the court to add Rule 54(b) language to the issue of the MSJ denial (assuming that availability of moving for 54(b) "language" that is available in superior court also applied to justice court) so it would be viewed as final. The denial of 54(b) language can in and of itself be grounds for a special action appeal. This article may be a good start on the subject THE FINAL JUDGMENT RULE IN ARIZONA. I have not read it but it popped up in a couple of places despite it being from 1984.

 

On a reverse and remand by the court of appeals you should be able to kick the trial judge that erred. I don't know if it is the same on a superior court R&R.

 

The appeal court being "annoyed" will occasionally come through in the decisions of the CoA. Since the superior court is not making precedent I do not know if they more freely express their annoyance than the CoA. If a judge cannot understand or follow the law and the rules of evidence I am unclear on how annoyance from above is going to penetrate their head, unless they are a career minded judge.

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@Credator

I'm not appealing the denial of a MSJ.  I'm appealing the grant of Plaintiff's MSJ.  I would also like to appeal the courts dismissal of my counterclaims as well as the order in limine that my hearsay objections to Plaintiff's business records are overruled for trial.

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Do you really want a system where litigants can get judges fired every time they decide against them? What do you think would happen any time an ordinary citizen sued Walmart, or Microsoft?

The appellate court has supremacy on all questions of law over the trial court. When it rules, the trial court must obey its commands. If the appellate court analyzes your business records exception argument, the trial court is then bound by that ruling.

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@UCL

Do you really want a system where litigants can get judges fired every time they decide against them? What do you think would happen any time an ordinary citizen sued Walmart, or Microsoft?

The appellate court has supremacy on all questions of law over the trial court. When it rules, the trial court must obey its commands. If the appellate court analyzes your business records exception argument, the trial court is then bound by that ruling.

My comments re: firing a judge were an attempt to be humorous.  Guess that flopped.  :-)

 

Do you know if I can appeal everything from the start of the case through to the granted MSJ, or is this only going to be an appeal on the granted MSJ?

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