You are on page 1of 34

Arizona Court of Appeals

Division One

BONNIE CLUSIAU,

No. 1- CA-CV 09-0300


Plaintiff-Appellee, vs. CLUSIAU ENTERPRISES, INC. Defendant-Appellant.

APPELLANTS OPENING BRIEF

ON APPEAL FROM THE MARICOPA COUNTY SUPERIOR COURT


HON. LOUIS A. ARANETA, JUDGE SUPERIOR COURT CASE NUMBER: CV 2008-091768

Reversed and remanded: CLUSIAU v. CLUSIAU ENTERPRISES, INC., 225 Ariz. 247, 236 P.3d 1194 (App. Div. 2 2010)

Brian K. Stanley Attorney & Counselor at Law 3625 N. 16th Street, Suite 119 Phoenix, Arizona 85016-6446 (602) 956-9201
State Bar No. 004619

Attorney for Plaintiff-Appellant Clusiau Enterprises, Inc. June 30, 2009

Arizona Court of Appeals


Division One

Bonnie Clusiau, Plaintiff-Appellee, - vs. Clusiau Enterprises, Inc., Defendant-Appellant. No. 1 CA-CV 09-0300

APPELLANTS OPENING BRIEF


CONTENTS TABLE OF AUTHORITIES CITED .................................................... iii I. II. III. IV. STATEMENT OF THE CASE ............................................................... 1 FACTS .......................................................................................................... 1 ISSUE PRESENTED.................................................................................. 6 ARGUMENT A. B. The 2007 Small-Claims Judgment Was Properly Denied Issue-Preclusive Effect in the Present Action.. ................................. 7 The Trial Court Erred in Attempting to Enforce the Memo Dated 4-2-86. ................................................................................... 11 1. 2. The Evidence of the Memo Dated 4-2-86 Did Not Conform to the Requirements of ARIZ.R.CIV.P. 56 (e). ...... 11 The Memo Dated 4-2-86, If It Could Be Accepted as Evidence, Would Appear to Represent an Attempt to Make a Codicil to Arthur Clusiaus Will, But It Is Not a Holograph, And It Is Not Witnessed, And So Cannot Be Given Effect. .................................................................... 17

-i-

3.

The Memo Dated 4-2-86, Even If It Might Be Accepted as Evidence, Clearly Does Not Evidence Any Contract, And Certainly Not One Made by Plaintiff with Defendant. .................................................................... 21 Even Accepting the Memo Dated 4-2-86 as Evidence And Arbitrarily Assuming That It Evidences an Agreement to Which Defendant Is a Party, There Is No Evidence The Agreement Was Supported by Consideration. ....................................................................... 22

4.

V.

CONCLUSION .......................................................................................... 24 APPENDICES A. Restatement (Second) of Judgments 28, Excerpts B. C. A.R.S. T. 22, Chap. 5 Selected Sections Memo dated 4-2-86 (printed transcription)

CERTIFICATES

- ii -

TABLE OF AUTHORITIES CITED Cases


Allen D. Shadron, Inc. v. Cole, 2 ARIZ. APP. 69, 406 P.2D 419 (1965) ........................................................ 22 Demasse v. ITT Corporation, 194 ARIZ. 500, 984 P.2D 1138 (1999) .......................................................... 22 Garcia v. General Motors Corp., 195 ARIZ. 510, 990 P.2d 1069 (App. Div. 1 1999) .................................... 7 In re Estate of Nordlund, 602 N.W.2D 910 (Minn.App. 1999) ..................................................................... 19 In re Keets Estate, 15 CAL.2D 328, 100 P.2D 1045 (1940).......................................................................... 19 Maycock v. Asilomar Dev., Inc., 207 ARIZ. 495, 88 P.3D 565, 568 (App. Div. 1 2004).............................. 10 Porter v. Hansen, 190 OKLA. 429, 124 P.2D 391 (1941) .............................................................................. 19 Rubenstein v. Sela, 137 ARIZ. 563, 672 P.2D 492 (App. Div. 2, 1983) ....................................................... 22 State Compensation Fund v. Yellow Cab Co., 197 ARIZ. 120, 3 P.3D 1040 (App. Div. 1 1999) ................... 9 Stevens/Leinweber/Sullens, Inc. v. Holm Dev. and Mgt., Inc., 165 ARIZ. 25, 795 P.2D 1308 (App. Div. 1 1990) .................................................................................................................................... 22 Stewart v. Phoenix Natl Bank, 49 ARIZ. 34, 64 P.2D 101 (1937) ................................................................ 22

Statutes
A.R.S. 12-2251 .......................................................................................................................................... 20 A.R.S. 22-201 (G) ........................................................................................................................................ 1 A.R.S. 22-516 (A) ...................................................................................................................................... 12 A.R.S. 22-519 .............................................................................................................................................. 7 A.R.S. 22-501 through 22-524 (T. 22, Ch. 5) ............................................................................................ 8 Minn. Stat. 524.2502 ............................................................................................................................... 18 Minn. Stat. 524.3108 ............................................................................................................................... 19 Minn. Stat. 524.3-909 ................................................................................................................................ 19 Minn.Stat. 524.3-1006 ............................................................................................................................... 19

Other Authorities
C.J.S. Agency 535 (2003) .......................................................................................................................... 21 C.J.S. Wills 805 (2001) .............................................................................................................................. 19 RESTATEMENT (2ND) OF JUDGMENTS (1980), 27 ........................................................................................... 9 RESTATEMENT (2ND) OF JUDGMENTS (1980), 28 ..................................................................................... 8, 10 RESTATEMENT (2ND) OF JUDGMENTS (1980), 28 (1) and (3) ..................................................................... 7, 8

Rules
ARIZ.R.CIV.P. 7 (e) ....................................................................................................................................... 14 ARIZ.R.CIV.P. 26.1 (a) .................................................................................................................................... 4 ARIZ.R.CIV.P. 56 (e) ................................................................................................................................. 6, 12

- iii -

Arizona Court of Appeals


Division One

Bonnie Clusiau, Plaintiff-Appellee, - vs. Clusiau Enterprises, Inc., Defendant-Appellant. No. 1 CA-CV 09-0300

I.

STATEMENT OF THE CASE.

Plaintiff, an individual, brought suit against corporate Defendant in the Small Claims Division of the San Marcos Justice Court, alleging that under an agreement dated April 2, 1986, Defendant is obligated to make monthly payments of $350.00 to Plaintiff and demanding $2,450 for three monthly payments allegedly due. Defendant counterclaimed for an unspecified amount, and the

action was transferred to the Maricopa County Superior Court pursuant to A.R.S. 22-201 (G). Plaintiff moved for summary judgment on her claim and for Plaintiffs motions were granted and

dismissal of Defendants counterclaim.

judgment in Plaintiffs favor was entered accordingly. Defendants motion for new trial was denied. Defendant appeals. II. FACTS.

In September, 2007, Plaintiff filed suit against Defendant in the Small Claims Division of the San Marcos Justice Court. Plaintiffs complaint in that action (the 2007 Small Claims Division Action) alleged that Defendant owed Plaintiff $2,450, representing three monthly payments of $350 owed to Plaintiff due to an agreement dated 4/2/86, stated the payments were in lieu of Plaintiff

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 1

receiving more under Plaintiffs deceased husbands will and asserted that Plaintiffs husband was [Defendants] boss at the time of his death in 1986. The Small Claims Division hearing officer granted Plaintiff judgment for $2,450 (the 2007 Small Claims Division Judgment). Plaintiff filed another, virtually identical action in the Small Claims Division of the San Marcos Justice Court in May, 2008 (the action now on appeal). After the action had been transferred to Superior Court, Plaintiff moved for summary judgment, arguing collateral estoppel based on the 2007 Small Claims Division Judgment. Index 9 and 10; Defendants response, Index 13 and 14. Although the procedural history is somewhat convoluted, in response to the motion for summary judgment Defendant contended (among other things) that the existence and/or validity of the agreement referred to in Plaintiffs complaint in the 2007 Small Claims Division Action could not have been actually litigated in that proceeding, because no written agreement or other evidence of an agreement had been filed or otherwise presented in that action. In reply (Index 17), Plaintiff/R. 56 movant produced, for the first time in this action (Defendant contends for the first time ever) what appears to be a photocopy of a document hand-written on three pages of lined notebook paper. Its first line reads To whom it May Concern 4-

2-86, and in the next line it refers to itself as My Most recent Memo. Although Plaintiff refers to it as an agreement, on its face it would appear to reflect only a unilateral declaration made by or in the name of Arthur Clusiau. Defendant has adopted the neutral term, Memo dated 4-2-86 to refer to this document. Since it was attached as Exhibit 1 to Plaintiffs Supplemental Reply in Support of Motion for Summary Judgment, Index 17, it is also referred to, sometimes, as Plaintiffs

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 2

Exhibit 1. A printed transcription of this document is set forth as Appendix C to this brief. Initially, no foundation, authentication, background or identification, in the form of sworn statements of any kind, was offered for Plaintiffs Exhibit 1. Eventually, after her motion for summary judgment had been granted, Plaintiff produced the declaration of one Paul Gooding to the effect that he had been present in the courtroom when the 2007 Small Claims Division Action was heard, and Plaintiffs Exhibit 1 is the document that was offered to the [Small Claims] court as evidence of the agreement by which Bonnie Clusiau is entitled to payment of $350.00 per month from Defendant. Response to Defendants Motion to Reconsider Courts Granting of Summary Judgment, etc., Index 28, Exhibit A, Declaration of Paul Gooding, 7. Plaintiff has stated that the purpose of producing Plaintiffs Exhibit 1 was to advance Plaintiffs collateral estoppel argument by showing that the existence and validity of the alleged agreement had been actually litigated and/or necessarily determined in the 2007 Small Claims Division Action, and not to recast her claim as one predicated on this written contract. Response to Defendants Motion to Reconsider Courts Granting of Summary Judgment, etc., Index 28, pp. 1 and 4. This is what the trial court said in ruling on the motion for summary judgment:
The Court grants summary judgment in favor of Plaintiff on her claim for breach of agreement/contract for nonpayment by Defendant. Exhibit 1 to the Supplemental Reply [Index 17] constitutes the agreement by Defendant to provide $350 per month to [Plaintiff] Bonnie for a [sc. as] long as she lives or remarries. The agreement is not a phantom agreement as claimed by Defendant. Minute entry order of October 29, 2008, Index 21, p. 2.

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 3

The parties have understood the courts ruling differently. Defendant infers that the trial court disregarded Plaintiffs collateral estoppel argument, accepted Plaintiffs Exhibit 1 as self-authenticating, and made a fresh assessment of the merits that began and ended with an uncritical reading of Plaintiffs Exhibit 1. Plaintiff thinks the motion was granted on the grounds urged by movant (to wit, collateral estoppel by virtue of the 2007 Small Claims Division Judgment) and the references to Plaintiffs Exhibit 1 in the ruling are mere surplusage. See Response to Motion to Reconsider, etc., Index 28, pp. 1 and 4. Defendant objected strenuously and at every opportunity to the trial courts acceptance of Plaintiffs Exhibit 1 as evidence for summary judgment purposes, asserting that there was no foundation or authentication in the record that would justify the reception of the document in evidence and pointing out that, by failing to disclose the document pursuant to ARIZ.R.CIV.P. 26.1 (a) and by first producing it as an attachment to her reply to Defendants response to her summary judgment motion, Plaintiff had prevented a fair appraisal of or response to the proffered document. Defendants Response to Motion to Amend Complaint; Motion to Strike, Index 18, p. 2, lines 16-18; Defendants Reply to Plaintiffs Response to Defendants Motion to Reconsider, etc., Index 29, p. 2, line 1 through p. 4, line 2, p. 6, line 18 through p. 7, line 4. It may seem that the foregoing presentation is heavy on procedural history and light on substantive facts, but the same must be said of the record before the Court. That record will be searched in vain for any information about Plaintiffs Exhibit 1, apart from Plaintiffs contention that it was offered as evidence at the hearing in the 2007 Small Claims Division Action (Response to Defendants Motion to Reconsider Courts Granting of Summary Judgment, etc., Index 28,

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 4

Exhibit A, Declaration of Paul Gooding, 7) and Defendants contention that it was not (Defendants Declaration in Support of Response to Plaintiffs Motion for Summary Judgment, Index 14, 5,7, 8 and 9, p. 2; Defendants Declaration in Support of Motion for Reconsideration, Index 23, 4, p. 1 and 16 & 17, pp. 34). Plaintiff is the surviving spouse of the late Arthur Clusiau, who died in April, 1986, at which time he was the boss of the Defendant corporation. These facts may be gleaned from the Declaration of Bonnie Clusiau, Exhibit A to the Statement of Facts in Support of Motion for Summary Judgment, Index 9, along with declarants tantalizing assertion that she previously received payments from Defendant that were made in lieu of [Plaintiffs] receiving more under [her] deceased husbands will. How much more Plaintiff would have received under the will if the payments she received from Defendant had not been made, and on what basis Plaintiff contends she would have received any more, are subjects on which the record is completely silent. Whose idea it was that Plaintiff should receive more, and what relationship, if any, existed between that idea and Plaintiffs Exhibit 1, like all other information about the origin, context and purpose of Plaintiffs Exhibit 1, and about Arthur Clusiaus estate generally, are simply absent. The sparseness of the factual record is in large measure due to Plaintiffs basic approach to the case. Plaintiff has insisted and still insists that the 2007 Small Claims Court Judgment precludes relitigating the question of whether Defendant owes the payments to [Plaintiff] that she now seeks. To Plaintiff, the 2007 Small Claims Court Judgment on its face provides all the information needed to resolve this case and any talk about anything else is not only a waste of time but

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 5

an assault on the judicial system. See Supplemental Reply in Support of Motion for Summary Judgment, Index 17, p. 1, line 20 through p. 2, line 7. The success of Plaintiffs motion for summary judgment (whatever the trial courts actual reason for granting it) has brought the matter into this Court with a drastically underdeveloped record. III. 1. ISSUES PRESENTED.

May a judgment entered in a Small Claims Division case conducted under A.R.S. Title 22, Chapter 5, be accorded issue-preclusive effect in a subsequent Superior Court action between the same parties?

2.

Under ARIZ.R.CIV.P. 56 (e), where movant submits a document without any official certification or any sworn statement authenticating, identifying or otherwise establishing the source, origin, provenance, history or purpose of the document, and the opposing party objects to the documents lack of foundation at the first opportunity to do so, may that document be considered as evidence for purposes of resolving the R. 56 motion?

3.

Under Minnesota law, if, shortly before his death, a person signs a paper containing a list of items, belonging to him or under his control, that he wishes various relatives to receive, but his signing of the paper is not witnessed, nor the paper endorsed with the signature of any witness, may that paper be given effect as decedents will or codicil?

4.

On the record presented, may Plaintiffs Exhibit 1 properly be treated as a contract, or the memorandum of a contract, rather than an (intended, if ineffectual) testamentary instrument?

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 6

5.

If Plaintiffs Exhibit 1 is viewed as a contract between Plaintiff and Defendant, has Plaintiff established her entitlement to summary judgment disallowing or overruling Defendants assertion of the defense of lack of consideration? IV. A. ARGUMENT. The Trial Court Was Right To Deny the 2007 Small-Claims Judgment Issue-Preclusive Effect in the Present Action.

Whether collateral estoppel, based on a final judgment concluding previous litigation, applies to conclusively resolve one or more issues in subsequent litigation between the same parties is a question of law which this Court reviews de novo. Garcia v. General Motors Corp., 195 ARIZ. 510, 513, 990 P.2d 1069 (App. Div. 1 1999) The application of controlling principles set forth in the Second Restatement of Judgments to the issue presented in this case is very clear and straightforward. RESTATEMENT (SECOND) OF JUDGMENTS (1980), 28. See Appendix A, infra. Defendant could not have obtained review of the 2007 Small Claims Judgment, as a matter of law. A.R.S. 22-519. See Appendix B, infra. REST. (2ND) OF JUDGMENTS 28 (1) is plainly applicable, and sufficient in itself to compel the conclusion that the 2007 Small Claims Judgment did not inhibit Defendants assertion and litigation of any of its defenses in this action. Even disregarding REST. (2ND) OF JUDGMENTS 28 (1), subsection 3 of 28 would clearly dictate the same conclusion. Once the dollar figures are adjusted for

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 7

thirty years inflation, 28, Comment d, Illustrations 6 and 7 could have been written for the express purpose of showing that judgments of the Small Claims Divisions created by Ch. 5 of Title 22, A.R.S. A.R.S. 22-501 through 22-524 should not be accorded issue-preclusive effect in subsequent actions. 1 This Court could promote the Small Claims Divisions fulfillment of their purpose by teaching explicitly that, under the principles set forth in the Second Restatement of Judgments, 28 (1) and (3) , Small Claims Division judgments will not be accorded issue-preclusive effect in subsequent actions. Otherwise, the apprehension that much more may be at stake than the modest small claims complaint would suggest the recognition, by the well-informed and prudent, that however small the claim, a small-claims defendant must hire an attorney, if only to opine as to possible collateral estoppel effects of judgment clearly must discourage acceptance and use of the small-claims system. On the other hand, confidence that nothing more can be at risk than the limited amount demanded in the small-claims complaint would encourage acceptance of the speedy, informal and inexpensive dispute-resolution techniques of the Small Claims Division. RESTATEMENT (2ND) OF JUDGMENTS 28 describes explicit exceptions to the general rule of issue-preclusion, permitting relitigation of issues even assuming

1.

The purpose of the Small Claims Division is to allow the inexpensive, speedy and informal resolution of small claims, 22-501. In a Small Claims Division case: the only motions allowed are for change of venue and to vacate judgment, 22-505; an unpaid lay hearing officers may act as judge, 22-506 (B), (D); attorneys are not allowed, 22-512 (B); service by certified mail is valid, 22513; trial must be held within 60 days after an answer is filed, 22-515; rules of procedure, pleading and evidence do not apply, 22-516 (A); discovery is not allowed, 22-516 (B); there is no trial by jury, 22-518; there is no appeal, 22519; and judgment must be entered within 10 days after the close of trial, 22520 (A). See Appendix B, infra.

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 8

the validity of the former judgment and the actual litigation, in the former proceeding, of the issues sought to be litigated in the second action. Defendant would stoutly maintain that: (a.) Plaintiffs arbitrary appropriation of the word agreement to refer to the unilateral declaration of donative or testamentary intent (the Memo dated 4-2-86, if presumed genuine and taken at face value) she has sought to enforce in both actions does not disguise the actual character of that document, which if authentic at all plainly represents an attempt to make a codicil to Arthur Clusiaus will, nor transform the true nature of the underlying subject of Plaintiffs request for relief from a matter of probate to one of civil contract; and (b.) The defenses raised in Defendants Answer in this action were not actually litigated in the 2007 Small Claims Court Action, or at least Plaintiff has not sustained her burden of proving that they were. 2 Point (a), if established, would mean that the general rule of issue preclusion simply is not applicable to begin with, because the San Marcos Justice Court, and more particularly the Small Claims Division thereof, lacks jurisdiction of probate matters, rendering the 2007 Small Claims Court Judgment void and thus removing the essential threshold element: a previous valid judgment. Point (b), if
2. The party asserting preclusion has the burden of proving that an issue was in fact litigated, determined, and that the determination was necessary. State Compensation Fund v. Yellow Cab Co., 197 ARIZ. 120, 124 14, 3 P.3D 1040 (App. Div. 1 1999). Here, for example, even if Plaintiffs strained and artificial characterization of the Memo dated 4-2-86 as an agreement between Plaintiff and the Defendant corporation is accepted, it would plainly constitute mere nudum pactum on Defendants part. See note 6, p. 23, infra. Defendant pled lack of consideration in its Answer. Where is the evidence that this issue was actually litigated in the 2007 Small Claims Court Action? Plaintiffs argument that, since a money judgment was entered in her favor, every possible defense must be deemed to have been actually litigated, and actually disallowed, in the previous action, is clearly inconsistent with the law of issue-preclusion. See REST. (2ND) OF JUDGMENTS, 27, Comments e through h.

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 9

established, would render the rule of issue-preclusion irrelevant to Defendants maintenance of the defenses it has pled in this action. However, in light of the conclusions compelled by the correct application of RESTATEMENT (2ND) OF JUDGMENTS 28 (1) and (3), it is not necessary to address these questions. The trial court clearly committed no error in disregarding

Plaintiffs contentions with regard to the alleged issue-preclusive effects of the 2007 Small Claims Court Judgment. (Or, to adopt Plaintiffs view of what the trial court did, it clearly erred in giving that judgment issue-preclusive effect.) B. The Trial Court Erred in Attempting to Enforce the Memo Dated 4-2-86.

In reviewing a decision on a motion for summary judgment, the Court of Appeals determines de novo whether any genuine issues of fact exist and whether the trial court erred in its application of the law. Maycock v. Asilomar Dev., Inc., 207 ARIZ. 495, 498, 14, 88 P.3D 565, 568 (App. Div. 1 2004). The issues discussed below all fall within the scope of this de novo standard. 1. The Evidence of the Memo Dated 4-2-86 Did Not Conform to the Requirements of ARIZ.R.CIV.P. 56 (e).

The trial court clearly based its decision to grant Plaintiff summary judgment on a document:
The Court grants summary judgment in favor of Plaintiff on her claim for breach of agreement/contract for nonpayment by Defendant. Exhibit 1 to the Supplemental Reply [Index 17] constitutes the agreement by Defendant to provide $350 per month to [Plaintiff] Bonnie for a [sc. as] long as she lives or remarries. The agreement is not a phantom agreement as claimed by Defendant. 3 3. Minute entry order of October 29, 2008, Index 21, p. 2, 1st para.

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 10

An unsworn and unauthenticated photocopy of some document appears in the record as Exhibit 1 to the Supplemental Reply in Support of Motion for Summary Judgment, Index 17, and again as Exhibit 1 to the Reply in Support of Motion to Amend Complaint and Notice of Attachment, Index 19. No affidavit even

purporting to supply any foundation for this Exhibit 1 or explain its provenance in any way was submitted prior to the granting of summary judgment. Plaintiffs one and only attempt at marshalling evidence authenticating or otherwise providing foundation or other support for this document came after summary judgment, and after Defendant had moved for reconsideration of the granting of summary judgment, in the Declaration of Paul Gooding attached as Exhibit A to the Response to Defendants Motion to Reconsider Courts Granting of Summary Judgment, etc., Index 28. Gooding swears that he was present in the courtroom on October 24, 2007 when the 2007 Small Claims Division Action was tried, and that
The document that is attached as Exhibit 1 to Plaintiffs Reply in Support of Motion to Amend Complaint and Notice of Attachment [Index 19] is the document (the Agreement) that was offered to the [Small Claims] court as evidence of the agreement by which Bonnie Clusiau is entitled to payment of $350.00 per month from Defendant Clusiau Enterprises, Inc. 4

4.

Response to Defendants Motion to Reconsider Courts Granting of Summary Judgment on Amended Complaint without Leave for Answer, Reply, or Pertinent Discovery, Index 28, Exhibit A, Declaration of Paul Gooding, 7, p. 1, lines 1216. However, Goodings assertion that the document had been offered as evidence at the 2007 Small Claims Division hearing is controverted by Defendants affidavits. See Defendants Declaration in Support of Response to Plaintiffs Motion for Summary Judgment, Index 14, 5,7, 8 and 9, p. 2; Defendants Declaration in Support of Motion for Reconsideration, Index 23, 4, p. 1 and 16 & 17, pp. 34.

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 11

ARIZ.R.CIV.P. 56 (e) provides:


Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Obviously, this means that, where documentary evidence is relied upon as supporting summary judgment, competent affidavits, recorded testimony or the like providing foundation and authentication for the document must be provided, equivalent to the background evidence that would permit the document to be admitted in evidence at a trial or evidentiary hearing. Now, if we assume first that it is appropriate to reconstruct Small Claims Division proceedings through extrinsic evidence and second that taking the affidavit of a partisan spectator made over a year after the fact is an appropriate means of performing such reconstruction, it may be said that Plaintiff offered competent evidence 5 (albeit after summary judgment had been granted) that the document in question presumably, though, another photocopy of said document, to speak more precisely was offered to the [Small Claims] court as evidence of the arrangement which Plaintiff claimed entitled her to payment. If we take a giant, gratuitous leap and simply assume that this other photocopy was also received as evidence by the Small Claims hearing officer, Plaintiff will have made no progress, because rules of evidence and procedure do not govern Small Claims Division proceedings. A.R.S. 22-516 (A). See Appendix B, infra.

5.

In the summary judgment context, it should be fatal that such evidence was directly controverted. See note 4, p. 12, supra. Since Goodings fact that the document had been offered as evidence at the 2007 Small Claims Division hearing is wholly inconsequential, however, the point seems practically moot.

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 12

At first glance, Defendants objections to Plaintiffs Exhibit 1 might seem to have been tardily made. However, the unusual procedural context must be taken into account. The document was not initially submitted by Plaintiff in support of her motion for summary judgment. It was first provided to the trial court in the form of an exhibit to a supplemental reply (filed without leave of court, Index 17) to Defendants response (Index 13) to Plaintiffs motion for summary judgment (Index 10). There it was offered as supposedly showing what issues were

actually litigated or necessarily determined in the 2007 Small Claims Division Action, solely on the strength of counsels unverified assertion that it was a document that [Plaintiff] presented in the 2007 Small Claims Division Action. Supplemental Reply in Support of Motion for Summary Judgment, Index 17, p. 2, lines 11-12. In the ordinary course of procedure as prescribed by R. 56 (c), Defendant would have had no opportunity to object. Even so Defendant did object, moving to strike the supplemental reply and attached exhibit and calling this exhibit unauthenticated, for which no foundation for admissibility has even been supplied. Defendants Response to Motion to Amend Complaint; Motion to Strike, Index 18, p. 2, lines 16-18. Ignoring Plaintiffs demand for summary judgment on grounds of collateral estoppel, the trial court spontaneously embarked upon an impromptu assessment of Plaintiffs claim on its own (original) merits, a journey that began and ended with the uncritical acceptance of Plaintiffs Exhibit 1 as a contract between Plaintiff and Defendant. That is how Defendant has understood the trial courts action, at any rate. Plaintiff has taken a different view, wrapping herself ever more tightly in the collateral estoppel blanket:

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 13

Because Plaintiff had already produced the agreement to the satisfaction of the court in the [2007 Small Claims Division Action], Plaintiff was not required to do so for this action. However, to refute Defendants sworn denial of its knowledge of the existence of the agreement (which it referred to as a phantom agreement), and not as a new issue, Plaintiff attached it as an exhibit to its Supplemental Reply as Exhibit 1, as the rules permit. The Court acknowledged the document in its ruling, but was not required to do so in order to reach its decision. Neither the proffering of this document to refute Defendants argument nor Plaintiffs referring to it in her Amended Complaint recasts Plaintiffs claim {Motion for Reconsideration at 2}, nor does it recast Plaintiffs motion for summary judgment. {Motion for Reconsideration at 6}. Response to Motion to Reconsider, etc., Index 28, p. 4, line 23 through p. 5, line 6; see also p. 1, line 23 through p. 2, line 8.

Plaintiff explained that her reason for submitting the Gooding declaration (Exh. A to Index 28) was to controvert the declaration of Carole Clusiau, Defendants president, to the effect that Plaintiff had not produced any written agreement in prior court proceedings. Plaintiff argued that the Gooding

declaration could be accepted and the Carole Clusiau declaration rejected because the latter is not credible. Response to Motion to Reconsider, etc., Index 28, p. 4. Since the 2007 Small Claims Division Judgment is not entitled to issue-preclusive effect in this action, however (see Part IV.A, pp. 7-11, supra) the question of what was or was not actually litigated in the 2007 Small Claims Division Action is moot. For whatever it was worth, the Gooding declaration came forward as an exhibit to Plaintiffs permitted response to Defendants motion for reconsideration. No permission to reply having been given, once again the ordinary course of civil procedure afforded Defendant no opportunity to reply, or object to the Gooding declaration or challenge its sufficiency. Defendant objected anyway. ARIZ.R.CIV.P. 7 (e). Once again,

Defendants Reply to Plaintiffs Response to

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 14

Defendants Motion to Reconsider, etc., Index 29, p. 6, line 18 through p. 7, line 4. (Prompting an indignant Motion to Strike Defendants Reply to Plaintiffs Response, etc., Index 30.) For purposes of reconstructing the 2007 Small Claims Division proceedings a purely academic exercise the Gooding declaration would be inadequate, both because it is controverted and also because, accepted as true, it would only establish that Plaintiffs Exhibit 1 was offered as evidence at the 2007 Small Claims hearing. For purposes of laying a foundation for the acceptance of

Plaintiffs Exhibit 1 as evidence supporting summary judgment in Plaintiffs favor, on the basis of a fresh determination of the merits of Plaintiffs claim, the Gooding declaration is useless, both because it is controverted and because, accepted as true, it would only establish that Plaintiffs Exhibit 1 came into existence on or before October 24, 2007, and was in Plaintiffs possession on that date. Who wrote the document, who signed it, where, when, under what circumstances and for what reason, into whose custody it was given and for what purposes, how, when and under what circumstances it came into Plaintiffs possession Plaintiff did not even pretend to provide any of this foundational information. Elsewhere in this brief, Defendant argues that even if the Memo dated 4-286 is simply accepted at face value the trial court erred in attempting to enforce it. Even to discuss the document intelligibly, it is necessary to make certain contextual assumptions. The fact that Defendant does make such assumptions for the purpose of that discussion should not distract the Court from the important procedural point made here. As a plaintiff and a Rule 56 movant, Plaintiff had the burden of establishing affirmatively, by evidence complying with R. 56 (e), that she was entitled to judgment and that there was no genuine issue as to any material

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 15

fact.

Instead, Plaintiff failed to establish a single material fact, or lay any

foundation that would support the admission of her Exhibit 1 in evidence. The fact principally, indeed, exclusively relied upon by Plaintiff before she was granted summary judgment on other grounds (and obstinately, in Defendants opinion, insisted upon thereafter) to wit, the fact of the 2007 Small Claims Division Judgment is not material for the reasons discussed in Part IV.A, pp.7-11, supra. The fact established by Plaintiff after obtaining summary

judgment that the document was offered to the [Small Claims] court as evidence is not material. It is not even vaguely significant. For all the record of this action shows, taking all of the declarations offered by Plaintiff as gospel truth, the document of which Plaintiffs Exhibit 1 is a photocopy could have been concocted by Plaintiff herself on the morning of October 24, 2007. 2. The Memo Dated 4-2-86, If It Could Be Accepted as Evidence, Would Appear to Represent an Attempt to Make a Codicil to Arthur Clusiaus Will, But It Is Not a Holograph, And It Is Not Witnessed, And So Cannot Be Given Effect.

The Memo dated 4-2-86, Plaintiffs Exhibit 1 (to both Index 17 and 19), is a photocopy (of a photocopy?) of a handwritten document. It appears to have been written in one hand, except for the signature of Arthur Clusiau appearing on each page, which appears to have been written by another hand. For the sake of the present argument, only, let us take it at face value that is, let us assume that it was written out on or about April 2, 1986, and at that time signed by the Arthur Clusiau who was then Plaintiffs husband, as his own voluntary and intelligent act. For the convenience of Court and counsel, Appendix C, infra, is a carefully prepared printed transcription of the content of Exhibit 1.

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 16

This document refers to itself as My Most recent Memo, and consists of a list of some items belonging to Arthur Clusiau or to corporations whose stock was owned by him, together with a designation of the relative who was to receive each item. On its face, the document presents a number of issues. It does not use the terms will or codicil or anywhere expressly indicate that Arthur Clusiaus death is contemplated. A probate lawyer might well question whether it expresses testamentary intent even if the document is dated shortly before Arthurs death. The additional (extra-record) facts that on April 2, 1986, Arthur was a gravely ill patient in a Minnesota hospital, and he was a domiciliary of Minnesota, might also be deemed material by our hypothetical probate lawyer. Of course, testamentary intent is pretty much a moot question if the document does not satisfy the Wills Act (of the applicable jurisdiction). Further, the document describes itself as My Most recent Memo which will superceed Any previous ones, but it makes no disposition of far the greater portion of Arthurs estate. While we are accessing extra-record facts so freely to make work for our hypothetical probate lawyer, we might note that Arthur had a will, a typewritten, lawyer-prepared document dated June 27, 1984, and that the bulk of the value of his estate consisted of the stock of several incorporated businesses that he had developed. Noting that the Memo dated 4-2-86 basically consists of a series of specific bequests of relatively small value, making no disposition of the major items of value in the estate, our probate lawyer, if he was a good one, would probably invoke the doctrine of dependent relative revocation, cf. Estate of Lyles, 615 SO.2D 1186, 1190 (Miss., 1993). Even if the 4-2-86 Memo purported to depose of all of Arthurs estate, resort to this doctrine might be

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 17

indicated, if the will superceed Any previous ones language were deemed effective to revoke prior wills but the gifts prescribed in the 4-2-86 Memo were held ineffectual because the document lacks necessary testamentary formalities. And lack them it does. Having been written in one hand and signed by another, the Memo dated 4-2-86 is clearly not a holograph, and anyway Minnesota does not recognize holographic wills. There is not a hint of signing by witnesses, as required by Minn. Stat. 524.2502. Therefore, our hypothetical probate

lawyer would not deem it necessary to take up the really knotty problem suggested by the Memo: whether it impressed Arthurs stock in the various corporations it mentions with a burden to implement the gift Arthur desired each corporation to make, a burden binding on the devisees of the stock (under the 1984 will) and on third parties subsequently buying the stock from them. That is the Gordian knot the Plaintiff has to tie in order to establish her entitlement to receive payments from Defendant but the probate lawyer would tell her, Dont bother. Lacking the required testamentary formalities, the Memo is ineffective anyway. departed Arthur really should have called me . It is ironic that in this action Plaintiff has wrapped herself in the doctrine of collateral estoppel. Both this action and the 2007 Small Claims Division action were actually collateral attacks on the probate of Arthurs typewritten 1984 will in a Minnesota probate proceeding that was commenced on July 11, 1986, and closed on August 8, 1988. In essence, Plaintiff wants her Exhibit 1 to be applied to impose a charge or obligation upon the stock of Clusiau Enterprises, Inc., all of which was owned by Arthur Clusiau in April, 1986, even though that stock passed, free and clear of any such charge or obligation, to devisees named in Arthur Dear

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 18

Clusiaus probated will. The time for Plaintiff to launch that effort expired in August, 1989:
[Statutory] provisions exist for situations where a property interest was distributed to the wrong party. See Minn. Stat. 524.3-909 (1998); Minn. Stat. 524.3-1006 (1998). Under these statutes the right of any devisee to recover improperly distributed property from a distributee is barred at the later of either three years after the decedents death or one year after the distribution of the property. Minn.Stat. 524.31006. In re Estate of Nordlund, 602 N.W.2D 910, 913 (Minn.App. 1999). Cf. Minn. Stat. 524.3 108, imposing same periods as ultimate time limit in probate proceedings.

Thereafter, the Minnesota probate proceedings were subject to collateral attack only on grounds of voidness, like other judgments. Porter v. Hansen, 190 OKLA. 429, 124 P.2D 391, 395-96 (1941) (final decree of probate court distributing decedents estate subject to collateral attack only on same limited grounds as other final judgments); In re Keets Estate, 15 CAL.2D 328, 100 P.2D 1045, 1048 (1940) (final order of probate court subject to collateral attack only if wholly invalid); The general rule is that a judgment or decree of probate, unless plainly void or made without jurisdiction, cannot be collaterally attacked or impeached. C.J.S. Wills 805 (2001). 3. The Memo Dated 4-2-86, Even If It Might Be Accepted as Evidence, Clearly Does Not Evidence Any Contract, And Certainly Not One Made by Plaintiff with Defendant. 96

Defendant was to make payments to her of $350 per month in lieu of [Plaintiffs] receiving more under [her] deceased husbands will. Such is the assertion made by Plaintiff in her Complaint in the 2007 Small Claims Court Action, in both her original and Amended Complaints in this action, and in a sworn statement (to wit, Statement of Facts in Support of Motion for Summary

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 19

Judgment, Index 9, Exhibit A, Declaration of Bonnie Clusiau, 4, p. 1, lines 8-9). Her arbitrary decision to use the term agreement in referring to the Memo does not mean there was any agreement, of course. Arthur Clusiaus unilateral

determination that he wanted Plaintiff to receive more, after his death, than she would receive under his existing will, certainly does not constitute an agreement. It does constitute classical grounds for wanting to make a codicil and, if we assume the genuineness of Plaintiffs Exhibit 1 and accept it at face value, the document does give every appearance of being Arthurs attempt to do exactly that. Of course, it is conceivable that an agreement or agreements of some kind underlay, or reinforced, the dispositions of property reflected by the Memo dated 4-2-86. Depending upon who is supposed to have agreed with whom and to what effect, these are a few of the legal questions that might arise if Plaintiff offered proof of such agreement and sought to enforce it: whether Plaintiff would have standing to enforce the agreement, whether evidence of the agreement would be admitted despite the Dead Mans Statute, A.R.S. 12-2251, whether there was consideration for the agreement, whether the agreement would be binding on subsequent purchasers of inherited corporate stock, whether the agreement was a contract regarding succession within the purview of Minn. Stat. 524.2-514 and, if so, whether there is a signed memorandum of the agreement that would satisfy the requirements of that statute. But obviously, on the record presented, this is all just errant speculation. Even if Plaintiff had made an adequate showing to justify acceptance of Plaintiffs Exhibit 1 (the Memo dated 4-2-86) as evidence under R. 56 (e), Exhibit 1 by itself, and hence the record of this action, would clearly be inadequate to

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 20

support the conclusion that any agreement Plaintiff may enforce against Defendant exists. 4. Even Accepting the Memo Dated 4-2-86 as Evidence And Arbitrarily Assuming That It Evidences an Agreement to Which Defendant Is a Party, There Is No Evidence The Agreement Was Supported by Consideration.

Even though Arthur Clusiaus (purported) signature on the Memo dated 42-86 reflects no indication that he intended to act as an agent of the Defendant or sign on its behalf, Plaintiff made a point of asserting (with insufficient foundation as to her personal knowledge of such matters) that Arthur Clusiau had been the founder and driving force behind Defendant and at the time of his death was the boss of Defendant. Statement of Facts in Support of Motion for Summary Judgment, Index 9, Exhibit A, Declaration of Bonnie Clusiau, 5 & 6, p. 1, lines 10-11. Apparently, the idea is that if Arthur Clusiau had authority to make an undertaking on behalf of the corporate Defendant, it must be presumed that he did so. But of course the true rule is that one contending that a persons act was performed as agent for, and with the purpose and effect of binding, another has the burden of proving it; the mere existence of an underlying agency relationship does not prove that a particular act was performed by the agent as an agent, rather than as a principal. There is a presumption that a person was acting for himself or herself and not as an agent for another. 3 C.J.S. Agency 535 (2003). In any event, a mere naked promise that Plaintiff would receive some benefit, even if it was that Defendant made the promise, would not give rise to an enforceable contract obligation the essential element of consideration would

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 21

clearly be lacking. 6 Even if it be said that since lack of consideration is an affirmative defense, Defendant bears the burden of proving it, it is obvious that in this case Defendant was not given a fair chance to develop or present that defense. V. CONCLUSION The Court should hold that the 2007 Small Claims Division Judgment has no issue-preclusive effect in this action. The Court should also hold that proper foundation and authentication for Plaintiffs Exhibit 1 are lacking on this record, and therefore it should not have been accepted as evidence for summary judgment purposes. Even assuming proper authentication of and foundation for Plaintiffs Exhibit 1 were provided, it is probably unenforceable as a matter of law. Unfortunately, the undeveloped state of this record prevents the Court from providing a ruling to that effect. The summary judgment entered by the trial court should be vacated, and the matter remanded for further proceedings. DATED: June 30, 2009.
______________________________

Brian K. Stanley, Attorney for Plaintiff-Appellant

6.

Cf. Demasse v. ITT Corporation, 194 ARIZ. 500, 510-11, 984 P.2D 1138 (1999); Stewart v. Phoenix Natl Bank, 49 ARIZ. 34, 49, 64 P.2D 101 (1937); Stevens/Leinweber/Sullens, Inc. v. Holm Dev. and Mgt., Inc., 165 ARIZ. 25, 30, 795 P.2D 1308 (App. Div. 1 1990) Allen D. Shadron, Inc. v. Cole, 2 ARIZ. APP. 69, 71, 406 P.2D 419 (1965), vacated on other grounds, 101 ARIZ. 122, 416 P.2D 555 (1966); Rubenstein v. Sela, 137 ARIZ. 563, 564, 672 P.2D 492 (App. Div. 2, 1983) ([L]ack of consideration is a valid defense in an action to enforce a contract) (dictum).

Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief

Page 22

CERTIFICATE OF COMPLIANCE Pursuant to ARIZ.R.CIV.APP.PROC. 14 (b), I certify that this brief: (1.) Uses proportionately spaced type of 14 points or more and is double-spaced using a roman font, except that a slightly smaller type may be used in tables and for footnotes and page footers and slightly larger type is used for certain headings; (2.) Its word count is approximately 6,500 words, and it does not exceed 40 pages. DATED: June 30, 2009.

______________________________ Brian K. Stanley Attorney for Defendant-Appellant CERTIFICATE OF SERVICE THE UNDERSIGNED HEREBY CERTIFIES that two (2) copies of the foregoing Brief were served upon the following: Hoopes & Adams Attn: Ms. Patricia A. Alexander 2410 W. Ray Rd., Ste. 1 Chandler, AZ 85210-6234 Attorneys for Defendants-Appellees by depositing the same, postage prepaid, enclosed within an envelope addressed as set forth above, in the United States Mails at Phoenix on June 30, 2009. DATED: June 30, 2009. ______________________________ Brian K. Stanley Attorney for Defendant-Appellant

1 Restatement (Second) of Judgments (1980)


Excerpts
28. Exceptions to the General Rule of Issue Preclusion Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances: (1) The party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action; or (2) The issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws; or (3) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them; or (4) The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action; or (5) There is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action, (b) because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or (c) because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action. Comment: a. Inability to obtain review (Subsection (1) ). As noted in 27, Comments h and i, the availability of review for the correction of errors has become critical to the application of preclusion doctrine. If review is unavailable because the party who lost on the issue obtained a judgment in his favor, the general rule of 27 is inapplicable by its own terms. Similarly, if there was an alternative determination adequate to support the judgment, the rule of 27 does not apply.

APPENDIX A: REST. (2nd) JUDGMENTS, 28

APPX A.1

There is a need for an analogous exception to the rule of preclusion when the determination of an issue is plainly essential to the judgment but the party who lost on that issue is, for some other reason, disabled as a matter of law from obtaining review by appeal or, where appeal does not lie, by injunction, extraordinary writ, or statutory review procedure. Such cases can arise, for example, because the controversy has become moot, or because the law does not allow review of the particular category of judgments. The exception in Subsection (1) applies only when review is precluded as a matter of law. It does not apply in cases where review is available but is not sought. Nor does it apply when there is discretion in the reviewing court to grant or deny review and review is denied; such denials by a first tier appellate court are generally tantamount to a conclusion that the questions raised are without merit. *** d. Courts of the same state (Subsection (3) ). Not infrequently, issue preclusion will be asserted in an action over which the court rendering the prior judgment would not have had subject matter jurisdiction. In many such cases, there is no reason why preclusion should not apply; the procedures followed in the two courts are comparable in quality and extensiveness, and the first court was fully competent to render a determination of the issue on which preclusion is sought. In other cases, however, there may be compelling reasons why preclusion should not apply. For example, the procedures available in the first court may have been tailored to the prompt, inexpensive determination of small claims and thus may be wholly inappropriate to the determination of the same issues when presented in the context of a much larger claim. The scope of review in the first action may have been very narrow. Or the legislative allocation of jurisdiction among the courts of the state may have been designed to insure that when an action is brought to determine a particular issue directly, it may only be maintained in a court having special competence to deal with it. In such instances, after a court has incidently determined an issue that it lacks jurisdiction to determine directly, the determination should not be binding when a second action is brought in a court having such jurisdiction. The question in each case should be resolved in the light of the nature of litigation in the courts involved and the legislative purposes in allocating jurisdiction among the courts of the state. Illustrations: *** 6. A brings an action against B to recover for property damage in a court whose jurisdiction is limited to claims not exceeding $2,000. The rules governing the conduct of litigation applicable in the court are substantially the same as those in courts of general jurisdiction. After trial, verdict and judgment are rendered for A on the basis of a finding of B's negligence. In a subsequent action by B against A for $10,000 for personal injuries arising out

APPENDIX A: REST. (2nd) JUDGMENTS, 28

APPX A.2

of the same occurrence, the finding of B's negligence in the first action is conclusive. 7. The facts are the same as in Illustration 6, except that the first action is brought in a small claims court which has a jurisdictional ceiling of $500, and which operates informally without pleadings, counsel, or rules of evidence. The finding of B's negligence is not conclusive in the second action.

APPENDIX A: REST. (2nd) JUDGMENTS, 28

APPX A.3

Arizona Revised Statutes, Title 22, Chapter 5


Selected Sections
A.R.S. 22-501. Definition In this chapter, unless the context otherwise requires, small claims division means a forum in justice courts in which procedures shall allow the inexpensive, speedy and informal resolution of small claims. A.R.S. 22-505. Venue of small claims actions; permissible motions A. The rules governing venue of civil actions in the justice courts govern small claims actions. B. A motion for change of venue and a motion to vacate a judgment are the only motions allowed in a small claims action. These motions shall be heard only by a justice of the peace. A.R.S. 22-506. Hearing officers A. The presiding judge of the superior court in the county may appoint hearing officers for small claims divisions upon recommendation of the justice of the peace. B. A hearing officer shall be of good moral character and shall be a qualified elector and resident of this state. C. A hearing officer may serve in any justice of the peace precinct within the county in which he is a resident. D. A hearing officer shall serve without pay. E. Special hearing officers may be appointed pursuant to subsection A to hear only mobile home park landlord-tenant controversies arising under title 33, chapter 11 or under the rental agreement between such parties. F. While acting as a hearing officer for small claims, a hearing officer has the same powers as a justice of the peace. G. If any party objects to the hearing officer prior to the hearing date, that partys case shall be referred to the justice of the peace of that precinct. A.R.S. 22-512. Parties; representation A. Any natural person, corporation, partnership, association, marital community or other organization may commence or defend a small claims action, but no assignee or other person not a real party to the original transaction giving rise to the action may commence such an action except as a personal representative duly appointed pursuant to a proceeding as provided in title 14.

APPENDIX B: A.R.S. T. 22, Ch. 5

APPX B.1

B. Notwithstanding section 32-261, in a small claims action: 1. An individual shall represent himself. 2. Either spouse or both may represent a marital community. 3. An active general partner or an authorized full-time employee shall represent a partnership. 4. A full-time officer or authorized employee shall represent a corporation. 5. An active member or an authorized full-time employee shall represent an association. 6. Any other organization or entity shall be represented by one of its active members or authorized full-time employees. An attorney-at-law shall not appear or take any part in the filing or prosecution or defense of any matter designated as a small claim. C. Notwithstanding subsection B of this section, at any time prior to hearing, the parties may stipulate by written agreement to the participation of attorneys in actions designated as small claims. D. This section is not intended to limit or otherwise interfere with a party's right to assign or to employ counsel to pursue his rights and remedies subsequent to the entry of judgment in a small claims action. E. Attorneys-at-law may represent themselves in propria persona. A.R.S. 22-513. Method of service A. In addition to any other available methods of service, the plaintiff may serve the summons and complaint by registered or certified mail. Service is deemed complete on the date of delivery of the registered or certified mail to the defendant as indicated on the return receipt that is received and filed with the court either in person or by first class mail. If the date of delivery was not entered by the postal carrier or is illegible, service is deemed complete on the date the return receipt is received and filed with the court, either in person or by first class mail. The clerk of the small claims division of the justice court may make service by certified restricted mail, return receipt requested. B. If the defendant cannot be served by registered or certified mail, personal service by a process server or an authorized officer or by any other means pursuant to court rule may be used. If personal service is used, an affidavit of service shall be filed with the court. C. If personal service is used, service is deemed complete on the date of delivery that is indicated on the certificate of service. D. At the time a complaint is filed, the clerk shall notify the plaintiff that if the plaintiff serves the summons and complaint by registered or certified mail under subsection A of this section the plaintiff may file the registered or certified mail return receipt with the court either in person or by first class mail.

APPENDIX B: A.R.S. T. 22, Ch. 5

APPX B.2

A.R.S. 22-515. Setting of trials; failure to appear; continuances A. Upon the filing of an answer by the defendant, the clerk shall set the action for hearing. The hearing shall be set for a date within sixty days of the filing of the defendant's answer. The clerk shall notify the parties of the time and place of the hearing. B. Any party failing to appear at the time set for hearing risks having an appropriate judgment entered against such party. C. Continuances of hearings shall be granted only for most serious reasons. A.R.S. 22-516. Trial procedure A. The justice of the peace or hearing officer shall conduct the trial in such a manner to do justice between the parties and shall not be bound by formal rules of procedure, pleading or evidence except for statutory provisions relating to privileged communications. Any evidence deemed material, relevant and competent may be admitted. B. Discovery proceedings shall not be used in the small claims procedure A.R.S. 22-518. Jury trials prohibited There is no right to a jury in the small claims division. A.R.S. 22-519. Appeals There shall be no appeal in a small claims procedure and the decision of the hearing officer or justice of the peace shall be final and binding on both parties. A.R.S. 22-520. Recording judgment A. The judgment by the justice of the peace or hearing officer in small claims issues shall be rendered no later than ten days from the close of the trial. B. All judgments shall be in writing and the court shall mail copies to all parties. C. The judgment shall clearly state the determination of the rights of the parties. D. The judgment is due and payable immediately after the judgment is rendered by the justice of the peace or a hearing officer in small claims court. Collection of the judgment by the prevailing party may follow the procedures as provided in sections 22-243 through 22-246.

APPENDIX B: A.R.S. T. 22, Ch. 5

APPX B.3

Plaintiffs Exhibit 1,
Memo dated 4-2-86: 3 lined, handwritten pages
I To whom it May Concern: 4-2-86 My Most recent Memo which will superceed Any previous ones, is listed Below: Bonnie to get a new Car in smaller class equipped with A/Cond, Automatic transmission and other popular options this Car Can be replaced yearly or at the discretion of the persons envolved This Car is for her own use only. It will be owned By the Company with the Co paying for insurance, Maintence & Licence expenses. It should be termed As a Company Demo or lease Unit. Clusiau Sales & Rental will furnish the Car. Listed above. Bonnies health insurance Shall be carried by Range Drive as Long as she lives or until She would remarry. The Apt House in Grand Rapids is hers to Live in, One of the Apartments. If She Lives elsewhere Clusiaus Inc. will provide $30000 per Month toward a rental unit. If Bonnie lives in Arthur Clusiau 4-2-86 in left margin II The Grand Rapids Apt. she will pay $2500 to Clusiau Enterprise per . Mo. Clusiau Enterprise will also provide $35000 per Month to Bonnie for as Long as She Lives or remarries. Clusiau Sales & Rental will provide $12500 per Month and Range Drive will also provide $12500 per Month. All these items will cease at the time of her Death, Marriage or with a Live in Mate. I also leave Some of My personal property to: Crestliner Boat, trailer & Rack - A. David Clusiau Pontoon Boat Charles Clusiau 1 Diand Ring with 2 Large Stones & a Border of 16 Small A. David Diamonds Clusiau 1 Diamond Ring with 1 Large Diamond Cornered by 4 quarter Pat Diamonds Clusiau 1 Smaller Diamond Ring That David Jr. David Sr. Has Now. To Clusiau 1 Diamond Ring That Charles Charles has Now to Clusiau Gold Charm & Gold Coin to A. David Clusiau 2000 Gold Piece to Charles Clusiau Arthur Clusiau 4-2-86 III Gold Kugeran to Bonnie Clusiau Silver Dollars to Be given to A. David Clusiau 1000 Charles Cluiau 1000 Margeret McCabe 1000 Pat Clusiau 1000 Bonnie Clusiau 2000 David Jr. 2000 $ 100 Gold Coin to Pat Clusiau Gold Bar to Margeret McCabe Balance of Silver Dollars, Coin Collection and proff Sets to be divided Equally Between Bonnie Clusiau, Margeret McCabe Charles Clusiau, A. David Clusiau and Pat Clusiau House at 26230 Ribbonwood Drive which is Owned By Clusiau Enterprise, will be offered as an option to Buy to A. David Clusiau for $85,00000 Bonnie and Arthur Clusiau have given A. David an option to Buy furniture at 26230 Ribbonwood for $15,00000 to Bonnie Clusiau. Personal Items of Sentimental value to be Kept at Bonnies discretion. 1 Gold Nugget to Pat Clusiau for a chain 4/2-86 Arthur Clusiau 4-2-86 3 pages

APPENDIX C: MEMO D. 4-2-86

APPX C.1