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LO v. CE – Into the Void

You won’t believe this – NO REALLY, YOU WON’T – but I do NOT want to blog about Owens v. Echard anymore (at least not at this current phase). I have better things to do, and the case isn’t at a place where there’s much important new stuff to discuss. That will come later, probably, but not now.

On the other hand, with so much inaccurate information being spread every day by the JFC cult, this puts me in a difficult position. Do I ignore the BS (as I’ve tried to do since last month), or do I respond and TRY to set things straight?

I know the JFC cult hates me with a white-hot passion, but you can’t deny what recently happened with the Notice of Change of Judge – at least SOME of the less-extreme JFC fanatics stopped for a moment, looked at the facts, and realized: “Jesus — Gingras has a valid point we can’t refute.”

Don’t deny it. You DID.

So, even though it is REALLY, REALLY, REALLY hard to change the minds of people who made up their minds months ago, and even though I have seriously enjoyed NOT talking about this case, there is still a glimmer of hope. There is still a small chance that SOME people might stop drinking Clayton’s Kool-Aid…even just for a minute…and they may finally realize the truth – that there are serious problems in the way this case has been handled, and those issues deserve public attention, concern, and perhaps corrective action.

OK, so I basically have two options:

1.) Allow the JFC cult’s one-sided (and often incorrect) narrative to be the only public commentary; or

2.) When important issues arise, offer my own comments to explain my views about the legal rules, procedures, etc.

I don’t love either option, but I think the harm that comes from Option #1 requires me to go with Option #2.

With that said, here’s the deal — earlier today, Judge Mata issued a one-line order denying all my post-trial motions (motion to vacate the judgment, motion for new trial, etc.)

Is that a big win for Clayton? Obviously JFC thinks so, but here’s why they are so, so wrong.

First, as everyone knows, on July 8, 2024, I filed a Notice of Change of Judge for Cause. That notice was based on Rule 6.1 of the Rules of Family Law Procedure which allows any party to ask for a new judge when grounds exist. In this case, we argued Judge Mata was biased, and that she had acted improperly for reasons explained in the notice.

I understand most people following this case are not lawyers, and that’s fine. But at the same time, if you are not currently licensed to practice law in Arizona, and if you do not have substantial experience practicing civil litigation in Arizona’s trial and appellate courts, you REALLY need to be careful about rushing to judgment regarding what you THINK the law says. Although I don’t follow this case closely on social media, when I do see comments (mostly forwarded by Laura and others), easily 90% of the JFC comments about the law are simply dead wrong.

I get that JFC doesn’t care about the truth. I also get that JFC is allowed to claim that I don’t know the law. That’s why we have courts — to settle these disputes.

But here’s the deal — JFC wants to fight this battle on social media, not in court, and JFC thinks the order today is a “win” for Clayton. That’s absolutely wrong as a matter of law.

First, the order today is VOID. That means it literally doesn’t exist, because Mata had no authority to issue this order while the Notice of Change of Judge remains unresolved (and NO — the notice has NOT been denied as of yet).

That conclusion is based, in part, on the text of Family Law Rule 6.1(a)(3) which explains the procedure once a Notice of Change of Judge is filed:

(3) On filing of the affidavit for cause, the named judge should proceed no further in the action except to make such temporary orders as are necessary to prevent immediate and irreparable harm from occurring before the request is decided and the action transferred. However, if the named judge is the only judge in the county, that judge may also perform the functions of the presiding judge.

Got that? This shouldn’t be that hard to understand — if the judge assigned to your case is biased and unwilling to follow the law, you have a legal right to ask the presiding judge (Mata’s boss) to look at the situation and determine if you are entitled to a new judge. While that request is pending, the case is placed on hold. The rule says while the notice is pending, the “named judge” (Mata) should “proceed no further in the action”. The ONLY exception is to make temporary orders to prevent irreparable harm. Obviously, that exception doesn’t apply here, so once again, Mata has ignored the rules and done something she had no right to do.

So what happens next? What happens when a judge ignores the law and continues to make rulings in the case after a notice is filed?

Well, believe it or not, that DOES happen sometimes, and the AZ Courts have been clear — any action taken by the noticed judge after the notice is filed is VOID:

It is well settled that when an affidavit of bias and prejudice is timely filed, the judge has no discretion to do anything further in the case except to transfer the case to another division.

West v. Superior Court, 104 Ariz. 1, 2 (Ariz. 1968)

Since he had no jurisdiction to do other than transfer the preliminary injunction proceedings to another judge, the order granting the preliminary injunction was void.

Itasca State Bank v. Superior Court, 445 P.2d 555, 557 (App. 1968)

In Arizona, like most states, when a judge issues a “void” order, that order is literally treated as if it doesn’t exist. Based on this, today’s order denying our request for a new trial, etc., is void and thus has zero legal effect.

But there’s also a SECOND problem — today’s order is not signed. It is what we in AZ call an “unsigned minute entry order”. Why does that matter? It matters because in AZ (and again, virtually every court I’ve practiced in uses the same rule) — unsigned orders aren’t final. That makes them very different from a signed order.

Here’s why – you can only appeal FINAL orders from the court. Again, if you are not a lawyer, this may sound crazy, but while a case is pending, the judge may issue lots of different orders — orders granting/denying discovery, orders extending deadlines, orders setting hearing dates, orders dismissing parties or claims, orders denying a request to dismiss parties or claims. The list is basically endless.

The law, however, is crystal clear — with only a tiny handful of exceptions, most orders issued in the middle of a case do not qualify as final. Under the rules, to be considered FINAL, an order must terminate the entire case as to all claims, issues, and parties, and the order MUST be signed by the judge. If ANYTHING is left unresolved (or if the order isn’t signed), then any order issued by the court is not considered final.

OH, and to help make things even more confusing, the rules DO allow a judge to issue something called a “partial final order” or a “partial final judgment” (the post-trial ruling on June 17, 2024 WAS a partial final judgment), but to qualify as a partial final judgment/order, the decision is required to contain very specific language and findings.  Any order that doesn’t contain such language is deemed non-final, and thus non-appealable.

So what is the point of all this? Well, putting aside the fact that it’s otherwise void, the order issued today is NOT signed, nor does it meet the requirements of a partial final judgment. Therefore, even if the order wasn’t void (which it is), it would almost certainly NOT be appealable. That means the order is just kind of an odd, meaningless nullity. As a practical matter, it’s exactly like this order never existed at all.

But again, don’t take my word for it, here’s what the Arizona Court of Appeals said in a similar decision issued earlier this month:

We lack jurisdiction to consider Husband’s appeal from the order awarding attorney’s fees to Wife. The second amended notice of appeal lists the “[s]igned minute entry dated April 28, 2023.” There is no such signed order. The record includes an unsigned minute entry order dated April 28, 2023, filed May 1, 2023. This order does not state the fee award amount, nor does it comply with Rule 78(b). Thus, it is not a final, appealable order.

Husband also filed a separate notice of appeal when the superior court later awarded Wife $3,552 in fees and costs in a signed order with Rule 78(b) language. We dismissed Husband’s appeal from the attorney’s fees judgment, finding entry of a Rule 78(b) judgment was improper. See Kim v. Mansoori, 214 Ariz. 457, 460-61, 153 P.3d 1086, ¶¶ 9-10 (App. 2007). As a result, we dismiss the appeal from the order awarding attorney’s fees to Wife for lack of jurisdiction.

Constantine v. Constantine, No. 1 CA-CV 23-0379 FC, 2024 WL 3335879 (July 9, 2024).

OKAY, got all this straight folks? Let me just break it down as simply as I can:

  1. The order today is void, because it was issued by a judge who is subject to an unresolved Notice of Change of Judge For Cause. Because the order is void, it has no legal effect.
  2. The order is unsigned, and therefore non-final. Why does that matter? It matters for two reasons: First, because you can’t appeal non-final orders, and second, Laura’s time to appeal does not begin running until the court issues a FINAL, SIGNED order. That comes straight from Rule 9(e)(1) of the Arizona Rules of Civil Appellate Procedure which states: “(1) If a party timely and properly files with the superior court clerk any of the following motions, the time to file a notice of appeal or cross-appeal for all parties begins to run from the entry by the superior court clerk of a signed written order disposing of the last such remaining motion …..” That’s also the same issue discussed in the Constantine case mentioned above — you can’t appeal unsigned minute entry orders because they’re not final.
  3. Because the unsigned order is non-final, Laura’s time to appeal has not started running yet. Per Rule 9(e)(1), Laura has 30 days to appeal from the entry of a signed written order disposing of her post-trial motions. We don’t have a signed order (yet), so the clock hasn’t started ticking.
  4. Like virtually everything else in the law, there is a narrow exception that *MIGHT* permit (but not require) Laura to appeal the unsigned order immediately, even though today’s order is non-appealable on its face. This post is long enough already, but if you REALLY want to become an expert on obscure issues of appellate jurisdiction, read this: Barassi v. Matison, 130 Ariz. 418 (Ariz. 1981) (finding premature notice of appeal from non-final order was OK, because “Dismissal of the present appeal would punish the appellant for being too diligent.”) I don’t think this exception applies here because there are too many other unresolved issues hanging out there such as the Notice of Change of Judge, plus the amount of fees.
  5. All else aside, the issue of whether we will get a new judge remains unresolved as of today. The Presiding Judge may still grant our notice, in which case the matter will be assigned to a new judge, or she may deny the notice (in which case we will immediately appeal).
  6. If Judge Fisk removes Mata from the case, this creates a real procedural mess — because it means the new judge technically won’t be able to consider the arguments raised in the post-trial motions to vacate, etc., since those motions have already been denied.  I assume that is exactly why Mata issued the decision today — purely to try and block Laura from having a new judge correct the damage caused by the June 17th ruling. But that plan is doomed to fail — Family Law Rule 85(b)(4) permits (indeed, requires) that “void” orders be set aside. So, let’s say in the next 30 days, Judge Fisk comes back and removes Mata from the case. We will then immediately bring a motion asking the new judge to vacate today’s order denying Laura’s post-trial motions, and that will open the door for the new judge to rule on those issues — again, just like today’s order never existed.
  7. Ultimately, even if Judge Fisk denies our request to disqualify Mata, that basically has zero impact on the case — we would simply appeal that issue (along with everything else), and I’m confident the Court of Appeals will not look kindly on what has happened here. Thus, the Court of Appeals could still send this back for a new trial, and that would involve an automatic change of judge as a matter of right under a different rule (Rule 6, not 6.1).

All this procedural nonsense aside, there WILL be a day when all these issues are resolved.

One way or another, Laura is entitled to her day in court, in front of a judge who is fair, unbiased, who cares about the rules, and who actually follows those rules.

That day hasn’t come yet, but it will.

P.S. I forgot to mention one important issue that JFC has been consistently wrong about – NO, LAURA DOES NOT HAVE TO POST A BOND TO APPEAL!

That is a common misconception, and it’s 10000% flat wrong. Has nothing to do with the issue of monetary vs. non-monetary relief. A bond is only required to stop post-judgment collection efforts…but that shouldn’t be an issue here.

If you see ANYONE claiming that Laura can’t appeal unless she posts a bond, please know this — that person has NO CLUE what they are talking about.

And NO — Laura cannot, as a matter of law, be declared vexatious….because AZ law (ARS § 12-3201) only allows pro se litigants to get that tag. People who are represented by counsel, like Laura, are excluded from the vexatious litigant statute.

P.P.S. (Friday) Comments are unhelpful bile, so turning them off.