Clusiau v Clusiau Enterprises, Inc. - Opening Brief

7/22/2019 Clusiau v Clusiau Enterprises, Inc. - Opening Brief

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Arizona Court of AppealsDivision One

BONNIE CLUSIAU,

Plaintiff-Appellee ,

vs.

CLUSIAU ENTERPRISES, INC.

Defendant-Appellant.

No. 1- CA-CV 09-0300

APPELLANTS OPENINGBRIEF

ON APPEAL FROM THE MARICOPA COUNTY SUPERIOR COURT

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

Brian K. StanleyState Bar No. 004619

Attorney & Counselor at Law3625 N. 16 th Street, Suite 119Phoenix, Arizona 85016-6446

(602) 956-9201

Attorney for Plaintiff-Appellant Clusiau Enterprises, Inc.

June 30, 2009

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


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- i -

Arizona Court of AppealsDivision 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. STATEMENT OF THE CASE ............................................................... 1

II. FACTS .......................................................................................................... 1

III. ISSUE PRESENTED .................................................................................. 6

IV. ARGUMENT

A. The 2007 Small-Claims Judgment Was Properly Denied Issue-Preclusive Effect in the Present Action.. ................................. 7

B. The Trial Court Erred in Attempting to Enforce the MemoDated 4-2-86. ................................................................................... 11

1. The Evidence of the Memo Dated 4-2-86 Did NotConform to the Requirements of A RIZ.R.C IV.P. 56 (e). ...... 11

2. The Memo Dated 4-2-86, If It Could Be Accepted asEvidence, Would Appear to Represent an Attempt to

Make a Codicil to Arthur Clusiaus Will, But It Is Nota Holograph, And It Is Not Witnessed, And So CannotBe Given Effect. .................................................................... 17


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- ii -

3. The Memo Dated 4-2-86, Even If It Might BeAccepted as Evidence, Clearly Does Not Evidence AnyContract, And Certainly Not One Made by Plaintiff with Defendant. .................................................................... 21

4. Even Accepting the Memo Dated 4-2-86 as EvidenceAnd Arbitrarily Assuming That It Evidences anAgreement to Which Defendant Is a Party, There Is

No Evidence The Agreement Was Supported byConsideration. ....................................................................... 22

V. CONCLUSION .......................................................................................... 24

APPENDICES

A. Restatement (Second) of Judgments 28, Excerpts

B. A.R.S. T. 22, Chap. 5 Selected Sections

C. Memo dated 4-2-86 (printed transcription)

CERTIFICATES


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- iii -

TABLE OF AUTHORITIES CITED

Cases Allen D. Shadron, Inc. v. Cole, 2 A RIZ. APP. 69, 406 P.2 D 419 (1965) ........................................................ 22Demasse v. ITT Corporation, 194 A RIZ. 500, 984 P.2 D 1138 (1999) .......................................................... 22

Garcia v. General Motors Corp., 195 A RIZ. 510, 990 P.2d 1069 (App. Div. 1 1999) .................................... 7In re Estate of Nordlund, 602 N.W.2 D 910 (Minn.App. 1999) ..................................................................... 19In re Keets Estate, 15 C AL.2D 328, 100 P.2 D 1045 (1940) .......................................................................... 19Maycock v. Asilomar Dev., Inc., 207 A RIZ. 495, 88 P.3 D 565, 568 (App. Div. 1 2004).............................. 10Porter v. Hansen, 190 O KLA. 429, 124 P.2 D 391 (1941) .............................................................................. 19Rubenstein v. Sela, 137 A RIZ. 563, 672 P.2 D 492 (App. Div. 2, 1983) ........... .......... ........... .......... ........... .. 22State Compensation Fund v. Yellow Cab Co., 197 A RIZ. 120, 3 P.3 D 1040 (App. Div. 1 1999) ................... 9Stevens/Leinweber/Sullens, Inc. v. Holm Dev. and Mgt., Inc., 165 A RIZ. 25, 795 P.2 D 1308

(App. Div. 1 1990) .................................................................................................................................... 22Stewart v. Phoenix Natl Bank, 49 A RIZ. 34, 64 P.2 D 101 (1937) ................................................................ 22

Statutes

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

Other Authorities

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

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


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Clusiau v. Clusiau Enterprises, Inc. Appellants Opening Brief Page 1

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

dismissal of Defendants counterclaim. Plaintiffs motions were granted and

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 thataction (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


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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


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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 paymentof $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 necessarilydetermined 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 theSupplemental Reply [Index 17] constitutes the agreement by Defendant toprovide $350 per month to [Plaintiff] Bonnie for a [ sc. as] long as she livesor remarries. The agreement is not a phantom agreement as claimed byDefendant. Minute entry order of October 29, 2008, Index 21, p. 2.


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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 courtsacceptance 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 A RIZ.R.C IV.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,


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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. 3-

4).

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, alongwith 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


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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. ISSUES PRESENTED.

1. 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 A RIZ.R.C IV.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?


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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. ARGUMENT.

A. The Trial Court Was Right To Deny the 2007 Small-ClaimsJudgment 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 A RIZ. 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. R ESTATEMENT (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 . R EST .

(2 ND) 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 R EST . (2 ND) OF JUDGMENTS 28 (1), subsection 3 of 28

would clearly dictate the same conclusion. Once the dollar figures are adjusted for


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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 claimscomplaint 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.

R ESTATEMENT (2 ND) 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, speedyand informal resolution of small claims, 22-501. In a Small Claims Divisioncase: 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, 22-513; 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 notallowed, 22-516 (B); there is no trial by jury, 22-518; there is no appeal, 22-519; and judgment must be entered within 10 days after the close of trial, 22-520 (A). See Appendix B, infra .


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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 infact litigated, determined, and that the determination was necessary. StateCompensation Fund v. Yellow Cab Co. , 197 A RIZ. 120, 124 14, 3 P.3 D 1040(App. Div. 1 1999). Here, for example, even if Plaintiffs strained and artificialcharacterization 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 actuallylitigated in the 2007 Small Claims Court Action? Plaintiffs argument that, sincea money judgment was entered in her favor, every possible defense must bedeemed to have been actually litigated, and actually disallowed, in the previousaction, is clearly inconsistent with the law of issue-preclusion. See R EST. (2 ND) OFJUDGMENTS , 27, Comments e through h.


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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

R ESTATEMENT (2 ND) 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 MemoDated 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 A RIZ. 495, 498, 14, 88 P.3 D 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 NotConform to the Requirements of A RIZ.R.C IV.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 theSupplemental Reply [Index 17] constitutes the agreement by Defendant toprovide $350 per month to [Plaintiff] Bonnie for a [ sc. as] long as she livesor remarries. The agreement is not a phantom agreement as claimed byDefendant. 3

3. Minute entry order of October 29, 2008, Index 21, p. 2, 1 st para.
http://www.loislaw.com/pns/doclink.htp?alias=AZCASE&cite=207+Ariz.+495http://www.loislaw.com/pns/doclink.htp?alias=AZCASE&cite=207+Ariz.+495http://www.loislaw.com/pns/doclink.htp?alias=AZCASE&cite=207+Ariz.+495http://www.loislaw.com/pns/doclink.htp?alias=AZCASE&cite=207+Ariz.+495#PG498http://www.loislaw.com/pns/doclink.htp?alias=AZCASE&cite=88+P.3d+565http://www.loislaw.com/pns/doclink.htp?alias=AZCASE&cite=88+P.3d+565http://www.loislaw.com/pns/doclink.htp?alias=AZCASE&cite=88+P.3d+565http://www.loislaw.com/pns/doclink.htp?alias=AZCASE&cite=88+P.3d+565#PG568http://www.loislaw.com/pns/doclink.htp?alias=AZCASE&cite=88+P.3d+565#PG568http://www.loislaw.com/pns/doclink.htp?alias=AZCASE&cite=88+P.3d+565http://www.loislaw.com/pns/doclink.htp?alias=AZCASE&cite=207+Ariz.+495#PG498http://www.loislaw.com/pns/doclink.htp?alias=AZCASE&cite=207+Ariz.+495


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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 thegranting 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 Supportof Motion to Amend Complaint and Notice of Attachment [Index 19] is thedocument (the Agreement) that was offered to the [Small Claims] court asevidence 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 SummaryJudgment on Amended Complaint without Leave for Answer, Reply, or PertinentDiscovery, Index 28, Exhibit A, Declaration of Paul Gooding, 7, p. 1, lines 12-

16.However, Goodings assertion that the document had been offered as evidence atthe 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 inSupport of Motion for Reconsideration, Index 23, 4, p. 1 and 16 & 17, pp. 3-4.


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ARIZ.R.C IV.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 inan 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

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

(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 .


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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 toStrike, 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 anyrate. Plaintiff has taken a different view, wrapping herself ever more tightly in the

collateral estoppel blanket:


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Because Plaintiff had already produced the agreement to the satisfaction of the court in the [2007 Small Claims Division Action], Plaintiff was notrequired to do so for this action. However, to refute Defendants sworn denialof 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 anexhibit to its Supplemental Reply as Exhibit 1, as the rules permit. The Courtacknowledged the document in its ruling, but was not required to do so inorder to reach its decision. Neither the proffering of this document to refuteDefendants argument nor Plaintiffs referring to it in her Amended Complaintrecasts Plaintiffs claim {Motion for Reconsideration at 2}, nor does itrecast 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-preclusiveeffect 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. A RIZ.R.C IV.P. 7 (e). Once again,

Defendant objected anyway. Defendants Reply to Plaintiffs Response to


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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 4-2-

86 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


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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 asEvidence, Would Appear to Represent an Attempt toMake a Codicil to Arthur Clusiaus Will, But It Is Nota Holograph, And It Is Not Witnessed, And So CannotBe 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.


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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


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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 itmentions 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. Dear

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


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Clusiaus probated will. The time for Plaintiff to launch that effort expired in

August, 1989:

[Statutory] provisions exist for situations where a property interest wasdistributed 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 torecover improperly distributed property from a distributee is barred at the later of either three years after the decedents death or one year after thedistribution of the property. Minn.Stat. 524.31006. In re Estate of

Nordlund, 602 N.W.2 D 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.2 D 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 C AL.2D 328, 100 P.2 D 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. 96C.J.S. Wills 805 (2001).

3. The Memo Dated 4-2-86, Even If It Might BeAccepted as Evidence, Clearly Does Not Evidence AnyContract, And Certainly Not One Made by Plaintiff with Defendant.

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


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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


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support the conclusion that any agreement Plaintiff may enforce against

Defendant exists.

4. Even Accepting the Memo Dated 4-2-86 as EvidenceAnd Arbitrarily Assuming That It Evidences anAgreement to Which Defendant Is a Party, There Is

No Evidence The Agreement Was Supported byConsideration.

Even though Arthur Clusiaus (purported) signature on the Memo dated 4-

2-86 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


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clearly be lacking. 6

V. CONCLUSION

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.

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


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CERTIFICATE OF COMPLIANCE

Pursuant to A RIZ.R.C IV.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.


______________________________ 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 & AdamsAttn: Ms. Patricia A. Alexander 2410 W. Ray Rd., Ste. 1Chandler, 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.


______________________________ Brian K. Stanley

Attorney for Defendant-Appellant


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APPENDIX A: REST. (2 nd) JUDGMENTS, 28 APPX A.1

1 Restatement (Second) of Judgments (1980)

Excerpts

28. Exceptions to the General Rule of Issue Preclus ion Although an is sue is actuall y li tigated and det ermined by a valid and final judgment , and the determination is essent ial to the judgment , reli tigation of the issue in a subsequent action between the parties is not precluded inthe following circumstances:

(1) The party against whom preclusion i s 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 aresubstantially unr elated, or (b) a new determination is warranted in order

to take account of an intervening change in the applicable legal contextor otherwis e to avoid inequitable administration of the laws; or

(3) A new determination of the issue is warranted by differences in thequality or extensiveness of the procedures followed in the two courtsor by factors relating to the allocation of jurisdiction between them; or

(4) The party against whom preclusion is sought had a significantlyheavier burden of persuasion with respect to the issue in the initialaction than in the subsequent action; the burden has shifted to hisadversary; or the adversary has a significantly heavier burden than hehad in the first action; or

(5) There is a clear and convincing need for a new determination of theissue (a) because of the potential adverse impact of the determinationon the public interest or the interests of persons not themselves partiesin the initial action, (b) because it was no t suff iciently foreseeable at thetime of the initial action that the issue would arise in the context of asubsequent action, or (c) because the party sought to be precluded, asa result of the conduct of his adversary or other special circumstances,did not have an adequate opportunity or incentive to obtain a full andfair adjudication in the initial action.

Comment:

a. Inability to obtain review (Subsection (1) ). As noted in 27, Comments hand i, the availability of review for the correction of errors has become critical tothe application of preclusion doctrine. If review is unavailable because the partywho lost on the issue obtained a judgment in his favor, the general rule of 27 isinapplicable by its own terms. Similarly, if there was an alternative determinationadequate to support the judgment, the rule of 27 does not apply.


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There is a need for an analogous exception to the rule of preclusion whenthe determination of an issue is plainly essential to the judgment but the partywho lost on that issue is, for some other reason, disabled as a matter of law fromobtaining review by appeal or, where appeal does not lie, by injunction, extraordi-nary writ, or statutory review procedure. Such cases can arise, for example,

because the controversy has become moot, or because the law does not allowreview of the particular category of judgments.

The exception in Subsection (1) applies only when review is precluded as amatter of law. It does not apply in cases where review is available but is notsought. Nor does it apply when there is discretion in the reviewing court to grantor deny review and review is denied; such denials by a first tier appellate courtare generally tantamount to a conclusion that the questions raised are withoutmerit.

* * *

d. Courts of the same state (Subsection (3) ). Not infrequently, issuepreclusion 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 inthe two courts are comparable in quality and extensiveness, and the first courtwas fully competent to render a determination of the issue on which preclusion issought. In other cases, however, there may be compelling reasons whypreclusion should not apply. For example, the procedures available in the firstcourt may have been tailored to the prompt, inexpensive determination of smallclaims and thus may be wholly inappropriate to the determination of the sameissues 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 allocationof jurisdiction among the courts of the state may have been designed to insurethat when an action is brought to determine a particular issue directly, it may onlybe maintained in a court having special competence to deal with it. In suchinstances, after a court has incidently determined an issue that it lacks

jurisdiction to determine directly, the determination should not be binding when asecond action is brought in a court having such jurisdiction. The question in eachcase should be resolved in the light of the nature of litigation in the courtsinvolved and the legislative purposes in allocating jurisdiction among the courtsof the state.

Illustrations:* * *

6. A brings an action against B to recover for property damage in a courtwhose jurisdiction is limited to claims not exceeding $2,000. The rulesgoverning the conduct of litigation applicable in the court are substantially thesame 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 asubsequent action by B against A for $10,000 for personal injuries arising out


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of the same occurrence, the finding of B's negligence in the first action isconclusive.

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


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APPENDIX B: A.R.S. T. 22, Ch. 5 APPX B.1

Arizona Revised Statutes, Title 22, Chapter 5

Selected Sections

A.R.S. 22-501. Def init ionIn this chapter, unless the context otherwise requires, small claims

division means a forum in justice courts in which procedures shall allow theinexpensive, speedy and informal resolution of small claims.

A.R.S. 22-505. Venue of smal l c laims act ions ; permiss ib le mot ions

A. The rules governing venue of civil actions in the justice courts governsmall claims actions.

B. A motion for change of venue and a motion to vacate a judgment arethe only motions allowed in a small claims action. These motions shall be heardonly by a justice of the peace.

A.R.S. 22-506. Hear ing o ff ic ers

A. The presiding judge of the superior court in the county may appointhearing 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 aqualified elector and resident of this state.

C. A hearing officer may serve in any justice of the peace precinct withinthe 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 tohear 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 hasthe same powers as a justice of the peace.

G. If any party objects to the hearing officer prior to the hearing date, thatpartys case shall be referred to the justice of the peace of that precinct.

A.R.S. 22-512. Par ties; representat ion

A. Any natural person, corporation, partnership, association, maritalcommunity 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 givingrise to the action may commence such an action except as a personalrepresentative duly appointed pursuant to a proceeding as provided in title 14.


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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 representan association.

6. Any other organization or entity shall be represented by one of its activemembers 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 tohearing, 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'sright to assign or to employ counsel to pursue his rights and remediessubsequent 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 o f 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 isdeemed complete on the date of delivery of the registered or certified mail to thedefendant as indicated on the return receipt that is received and filed with thecourt either in person or by first class mail. If the date of delivery was not enteredby the postal carrier or is illegible, service is deemed complete on the date thereturn receipt is received and filed with the court, either in person or by first classmail. The clerk of the small claims division of the justice court may make serviceby 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 mailunder subsection A of this section the plaintiff may file the registered or certifiedmail return receipt with the court either in person or by first class mail.


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A.R.S. 22-515. Set ting of tr ial s; fai lu re to appear; cont inuances

A. Upon the filing of an answer by the defendant, the clerk shall set theaction for hearing. The hearing shall be set for a date within sixty days of thefiling of the defendant's answer. The clerk shall notify the parties of the time andplace of the hearing.

B. Any party failing to appear at the time set for hearing risks having anappropriate judgment entered against such party.

C. Continuances of hearings shall be granted only for most seriousreasons.

A.R.S. 22-516. Tr ial proc edure

A. The justice of the peace or hearing officer shall conduct the trial in sucha manner to do justice between the parties and shall not be bound by formalrules of procedure, pleading or evidence except for statutory provisions relating

to privileged communications. Any evidence deemed material, relevant andcompetent may be admitted.

B. Discovery proceedings shall not be used in the small claims procedure

A.R.S. 22-518. Jur y tri als proh ib ited

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 bothparties.

A.R.S. 22-520. Recording judgmen t

A. The judgment by the justice of the peace or hearing officer in smallclaims 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 allparties.

C. The judgment shall clearly state the determination of the rights of theparties.

D. The judgment is due and payable immediately after the judgment isrendered 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 asprovided in sections 22-243 through 22-246.
http://www.loislaw.com/pns/doclink.htp?dockey=13477640@AZCODE&alias=AZCODE&cite=22-243http://www.loislaw.com/pns/doclink.htp?dockey=13477643@AZCODE&alias=AZCODE&cite=22-246http://www.loislaw.com/pns/doclink.htp?dockey=13477643@AZCODE&alias=AZCODE&cite=22-246http://www.loislaw.com/pns/doclink.htp?dockey=13477640@AZCODE&alias=AZCODE&cite=22-243


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Plainti ffs Exhibit 1,Memo dated 4-2-86: 3 lined, handwritten pages

ITo whom it May Concern: 4-2-86

My Most recent Memo which willsuperceed Any previous ones, islisted Below:

Bonnie to get a new Car insmaller class equipped with A/Cond, Automatic transmission andother popular options this CarCan be replaced yearly or atthe discretion of the persons envolvedThis Car is for her own use only.It will be owned By the Companywith the Co paying for insurance,Maintence & Licence expenses.It should be termed As a CompanyDemo or lease Unit. ClusiauSales & Rental will furnish the Car.Listed above.

Bonnies health insurance Shallbe carried by Range Drive asLong as she lives or until Shewould remarry. The Apt Housein Grand Rapids is hers to Livein, One of the Apartments. If She

Lives elsewhere Clusiaus Inc. willprovide $30000 per Month toward arental unit. If Bonnie lives in

Arthur Clusiau 4-2-86 in left margin

IIThe 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 asShe Lives or remarries. Clusiau

Sales & Rental will provide $12500

per Monthand Range Drive will also provide$12500 per Month. All these items will cease at thetime of her Death, Marriage or witha Live in Mate.

I also leave Some of My personalproperty to:

Crestliner Boat, trailer & Rack - A. David ClusiauPontoon Boat - Charles Clusiau1 Diand Ring with 2 Large

Stones & a Border of 16 Small A. DavidDiamonds Clusiau1 Diamond Ring with 1 Large Diamond Cornered by 4 quarter PatDiamonds Clusiau

1 Smaller Diamond Ring That David Jr.David Sr. Has Now. To Clusiau

1 Diamond Ring That CharlesCharles has Now to Clusiau

Gold Charm & Gold Coin to A. David Clusiau2000 Gold Piece to Charles Clusiau

Arthur Clusiau 4-2-86III

Gold Kugeran to Bonnie ClusiauSilver 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 ClusiauGold Bar to Margeret McCabe

Balance of Silver Dollars, Coin Collectionand proff Sets to be divided EquallyBetween Bonnie Clusiau, Margeret McCabe

Charles Clusiau, A. David Clusiauand Pat Clusiau

House at 26230 RibbonwoodDrive which is Owned By ClusiauEnterprise, will be offered as anoption to Buy to A. David Clusiaufor $85,00000 Bonnie and Arthur

Clusiau have given A. David anoption to Buy furniture at 26230Ribbonwood for $15,00000 to BonnieClusiau. Personal Items of Sentimentalvalue to be Kept at Bonniesdiscretion.

1 Gold Nugget to Pat Clusiaufor a chain 4/2-86 Ar thur Clusiau 4-2-86

3 pages

Documents

Clusiau v Clusiau Enterprises, Inc. - Opening Brief