Arizona Court of Appeals

Division One



Pl= aintiff-Appellee,




Defendant-Appe= llant.

No. 1- CA-CV 09-0300






Reversed and remanded:

CLUSIAU v. CLUSIAU ENTE= RPRISES, INC., 225 Ariz. 247, 236 P.3d 1194 (App. Div. 2 2010)

Bria= n K. Stanley

State Bar No. 0= 04619 Attorney & Counselor at Law 3625 N. 16th Street, Suite 119

Phoenix, Arizona 85016-64= 46

(602) 956-9201

Attorney for Plaintiff-Appellant Cl= usiau Enterprises, Inc.


June 30, 2009

Arizona Court of Appeals

<= h4 style=3D”padding-top: 6pt;padding-left: 78pt;text-indent: 0pt;text-align= : center;”>Division One


Bonnie Clus= iau, Plaintiff-Appellee,

– vs. –

Clusiau Enterprises, Inc., Defendant-Appellant.=

No. 1 = CA-CV 09-0300





  2. FACTS 1



    1. The = 2007 Small-Claims Judgment Was Properly DeniedIssue-Preclusive Effect in the P= resent Action. 7
    2. The Trial Court Erred in Attempti= ng to Enforce the MemoDated 4-2-86 11
      1. The Ev= idence of the Memo Dated 4-2-86 Did Not Conform to the Requirements of A<sp= an=”” class=”3D”s16″”>RIZ.R.CIV.P. 56 (e). 11<= /p></sp=>
      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 Arth= ur Clusiau=E2=80=99s Will, But It Is Not a Holograph, And It Is Not Witness= ed, And So CannotBe Given Effect. 17
      3. The Memo Dated 4-2-86, Even If It Might Be Accepted as Evidence, Cle= arly Does Not Evidence Any Contract, And Certainly Not One Made by Plaintif= fwith Defendant. 21
      4. Even Acce= pting the Memo Dated 4-2-86 as Evidence And Arbitrarily Assuming That It Ev= idences an =E2=80=9CAgreement=E2=80=9D to Which Defendant Is a Party, There= Is No Evidence The Agreement Was Supported byConsiderati= on. 22


    1. Restatement (Second) of Judgments = =C2=A7 28, Excerpts
    2. A.R.S. T. 22, Chap. 5 =E2=80= =93 Selected Sections
    3. Memo dated 4-2-86 (printed t= ranscription)




Allen D. S= hadron, Inc. v. Cole, 2 ARIZ. APP. 69, 406 P.2419 (1965) 22

Demasse v. ITT Corporation, 194 ARIZ= . 500, 984 P.21138 (1999) 22

Garcia v. General Motors Corp., 195 ARI= Z. 510, 990 P.2d 1069 (App. Div. 1 1999) 7

In re Estate of Nordlund, 602 N.W.2910 (Minn.= App. 1999) 19

In re Keet=E2=80=99s Estate, 15 C<s= pan=”” class=”3D”s19″”>AL.2328, 100 P.2<span= class=”3D”s19″”>D 1045 (1940) 19</span=></s=>

Maycock v.= Asilomar Dev., Inc., 207 ARIZ. 495, 88 P.3<span= class=”3D”s19″”>D 565, 568 (App. Div. 1 2004) 10</span=>

Porter v. Hansen, 190 OKLA. 429, 124 P.2<s= pan=”” class=”3D”s19″”>D 391 (1941) 19</s=>

Rubenste= in v. Sela, 137 ARIZ. 563, 672 P.2492 (App. Div. 2, 1983) 22

State C= ompensation Fund v. Yellow Cab Co., 197 ARIZ. 12= 0, 3 P.31040 (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 Nat=E2=80=99l Bank, 49 ARIZ. 34, 64 P.2= 101 (1937) 22

Statut= es

A.R.S. =C2=A7 12-2251 20

A.R.S. =C2=A7 22-201 (G) 1

A.R.S. =C2=A7 22-= 516 (A) 12

A.R.S. =C2=A7 22-519 7

A.R.S. =C2=A7=C2=A7 22-501 through 22-524 (T. 22, Ch. 5) 8

<p= class=”3D”s18″” 3pt;padding-left:=”” 47pt;text-indent:=”” 0p=”t;text-align:” left;”=””>Minn. Stat. =C2=A7 524.2=E2=80=93502 18

Minn. Stat. =C2=A7 524.3=E2=80=93108 19

Minn. Stat. =C2=A7 524.3-909 19

Minn.Stat. =C2= =A7 524.3-1006 19

Other Authorities

C.J.S. Agency =C2=A7 535 (2003) 21

C.J.S. Wills =C2=A7 805 (2001) 19

RESTATEMENT (2ND) <s= pan=”” class=”3D”s19″”>OF JUDGMENTS (1980), = =C2=A7 27 9</s=>

RESTATEMENT (2ND) OF JUDGMENTS (1980), =C2=A7 28 8, 10

ESTATEMENT (2ND) <= span class=3D”s19″>OF JUDGMENTS (1980), = =C2=A7 28 (1) and (3) 7, 8


ARIZ.R.CIV.= P. 7 (e) 14

ARIZ.R.C<s= pan=”” class=”3D”s19″”>IV.P. 26.1 (a) 4</s=>

ARIZ.R.CIV.P. 56 (e) 6, 12

Arizona Court of Appeals

Division One

Bonnie Clusiau, Pla= intiff-Appellee,

– vs. –

Clusiau Enterprises, Inc., Defendant-Appellant.

No. 1 CA-CV 09-03= 00


    Plainti= ff, an individual, brought suit against corporate Defendant in the Small Cl= aims Division of the San Marcos Justice Court, alleging that under an agree= ment dated April 2, 1986, Defendant is obligated to make monthly payments o= f $350.00 to Plaintiff and demanding $2,450 for three monthly payments alle= gedly due. Defendant counterclaimed for an unspecified amount, and the acti= on was transferred to the Maricopa County Superior Court pursuant to A.R.S.=

    =C2=A7 22-201 (G). Plaintiff moved for summary judgment on= her claim and for dismissal of Defendant=E2=80=99s counterclaim. Plaintiff= =E2=80=99s motions were granted and judgment in Plaintiff=E2=80=99s favor w= as entered accordingly. Defendant=E2=80=99s motion for new trial was denied= . Defendant appeals.


  2. FACTS.

    In September, 2007, Plaintiff filed suit against Defendant = in the Small Claims Division of the San Marcos Justice Court. Plaintiff=E2= =80=99s complaint in that action (the =E2=80=9C2007 Small Claims Division A= ction=E2=80=9D) alleged that Defendant owed Plaintiff $2,450, representing = three monthly payments=E2=80=99 of $350 owed to Plaintiff =E2=80=9Cdue to a= n agreement dated 4/2/86,=E2=80=9D stated =E2=80=9Cthe payments were in lie= u of Plaintiff

    <= p style=3D”padding-top: 4pt;padding-left: 47pt;text-indent: 0pt;line-height= : 161%;text-align: justify;”>receiving more under Plaintiff=E2=80=99s decea= sed husband=E2=80=99s will=E2=80=9D and asserted that =E2=80=9CPlaintiff=E2= =80=99s husband was [Defendant=E2=80=99s] =E2=80=98boss=E2=80=99 at the tim= e of his death in 1986.=E2=80=9D The Small Claims Division hearing officer = granted Plaintiff judgment for $2,450 (the =E2=80=9C2007 Small Claims Divis= ion Judgment=E2=80=9D).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 ac= tion had been transferred to Superior Court, Plaintiff moved for summary ju= dgment, arguing collateral estoppel based on the 2007 Small Claims Division= Judgment. Index 9 and 10; Defendant=E2=80=99s response, Index 13 and 14.

    Although the procedural history is somewh= at convoluted, in response to the motion for summary judgment Defendant con= tended (among other things) that the existence and/or validity of the =E2= =80=9Cagreement=E2=80=9D referred to in Plaintiff=E2=80=99s complaint in th= e 2007 Small Claims Division Action could not have been =E2=80=9Cactually l= itigated=E2=80=9D in that proceeding, because no written agreement or other= evidence of an agreement had been filed or otherwise presented in that act= ion. In reply (Index 17), Plaintiff/R. 56 movant produced, for the first ti= me 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 noteb= ook paper. Its first line reads =E2=80=9CTo whom it May Concern 4- 2-86,=E2= =80=9D and in the next line it refers to itself as =E2=80=9CMy Most recent = Memo.=E2=80=9D Although Plaintiff refers to it as an =E2=80=9Cagreement,=E2= =80=9D 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 neutra= l term, =E2=80=9CMemo dated 4-2-86=E2=80=9D to refer to this document. Sinc= e it was attached as Exhibit 1 to Plaintiff=E2=80=99s Supplemental Reply in= Support of Motion for Summary Judgment, Index 17, it is also referred to, = sometimes, as =E2=80=9CPlaintiff=E2=80=99s

    Exhibit 1.=E2=80= =9D A printed transcription of this document is set forth as Appendix C to = this brief.

    Initially, no foundation, au= thentication, background or identification, in the form of sworn statements= of any kind, was offered for Plaintiff=E2=80=99s Exhibit 1. Eventually, af= ter her motion for summary judgment had been granted, Plaintiff produced th= e 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 Pl= aintiff=E2=80=99s Exhibit 1 =E2=80=9Cis the document that was offered to th= e [Small Claims] court as evidence of the agreement by which Bonnie Clusiau= is entitled to payment of $350.00 per month from Defendant.=E2=80=9D Respo= nse to Defendant=E2=80=99s Motion to Reconsider Court=E2=80=99s Granting of= Summary Judgment, etc., Index 28, Exhibit A, Declaration of Paul Gooding, = =C2=B6 7.

    Plaintiff has stated that the = purpose of producing Plaintiff=E2=80=99s Exhibit 1 was to advance Plaintiff= =E2=80=99s collateral estoppel argument by showing that the existence and v= alidity of the alleged agreement had been actually litigated and/or necessa= rily determined in the 2007 Small Claims Division Action, and not to recast= her claim as one predicated on this written =E2=80=9Ccontract.=E2=80=9D Re= sponse to Defendant=E2=80=99s Motion to Reconsider Court=E2=80=99s Granting= of Summary Judgment, etc., Index 28, pp. 1 and 4.

    This is what the trial court said in ruling on the motion for su= mmary judgment:

    The Court g= rants summary judgment in favor of Plaintiff on her claim for breach of agr= eement/contract for nonpayment by Defendant. Exhibit 1 to the Supplemental = Reply [Index 17] constitutes the agreement by Defendant to =E2=80=9Cprovide= $350 per month to [Plaintiff] Bonnie for a [sc. as] long as she liv= es or remarries.=E2=80=9D The agreement is not a phantom agreement as claim= ed by Defendant. Minute entry order of October 29, 2008, Index 21, p. 2.

    The parties have understood the court=E2=80=99s ruling differe= ntly. Defendant infers that the trial court disregarded Plaintiff=E2=80=99s= collateral estoppel argument, accepted Plaintiff=E2=80=99s Exhibit 1 as se= lf-authenticating, and made a fresh assessment of the merits that began and= ended with an uncritical reading of Plaintiff=E2=80=99s Exhibit 1. Plainti= ff thinks the motion was granted on the grounds urged by movant (to wit, co= llateral estoppel by virtue of the 2007 Small Claims Division Judgment) and= the references to Plaintiff=E2=80=99s Exhibit 1 in the ruling are mere sur= plusage. See Response to Motion to Reconsider, etc., Index 28, pp. 1= and 4.

    Defendant objected strenuously a= nd at every opportunity to the trial court=E2=80=99s acceptance of Plaintif= f=E2=80=99s Exhibit 1 as evidence for summary judgment purposes, asserting = that there was no foundation or authentication in the record that would jus= tify the reception of the document in evidence and pointing out that, by fa= iling to disclose the document pursuant to ARIZ.= R.CIV.P. 26.1 (a) and by first producing it as a= n attachment to her reply to Defendant=E2=80=99s response to her sum= mary judgment motion, Plaintiff had prevented a fair appraisal of or respon= se to the proffered document. Defendant=E2=80=99s Response to Motion to Ame= nd Complaint; Motion to Strike, Index 18, p. 2, lines 16-18; Defendant=E2= =80=99s Reply to Plaintiff=E2=80=99s Response to Defendants Motion to Recon= sider, 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 presentatio= n is heavy on procedural history and light on substantive facts, but the sa= me must be said of the record before the Court. That record will be searche= d in vain for any information about Plaintiff=E2=80=99s Exhibit 1, apart fr= om Plaintiff=E2=80=99s contention that it was offered as evidence at the he= aring in the 2007 Small Claims Division Action (Response to Defendant=E2=80= =99s Motion to Reconsider Court=E2=80=99s Granting of Summary Judgment, etc= ., Index 28,

    Exhibit A, Declaration of Paul Gooding, =C2=B6 7= ) and Defendant=E2=80=99s contention that it was not (Defendant=E2=80=99s D= eclaration in Support of Response to Plaintiff=E2=80=99s Motion for Summary= Judgment, Index 14, =C2=B6=C2=B6 5,7, 8 and 9, p. 2; Defendant=E2=80=99s D= eclaration in

    Support of Motion for Reconsideration, Index = 23, =C2=B6 4, p. 1 and =C2=B6=C2=B6 16 & 17, pp. 3-


    =Plain= tiff is the surviving spouse of the late Arthur Clusiau, who died in April,= 1986, at which time he was the =E2=80=9Cboss=E2=80=9D of the Defendant cor= poration. These facts may be gleaned from the Declaration of Bonnie Clusiau= , Exhibit A to the Statement of Facts in Support of Motion for Summary Judg= ment, Index 9, along with declarant=E2=80=99s tantalizing assertion that sh= e previously received payments from Defendant that =E2=80=9Cwere made in li= eu of [Plaintiff=E2=80=99s] receiving more under [her] deceased husband=E2= =80=99s will.=E2=80=9D How much more Plaintiff would have received under th= e will if the payments she received from Defendant had not been made, and o= n what basis Plaintiff contends she would have received any more, are subje= cts on which the record is completely silent. Whose idea it was that Plaint= iff should =E2=80=9Creceive more,=E2=80=9D and what relationship, if any, e= xisted between that idea and Plaintiff=E2=80=99s Exhibit 1, like all other = information about the origin, context and purpose of Plaintiff=E2=80=99s Ex= hibit 1, and about Arthur Clusiau=E2=80=99s estate generally, are simply ab= sent.

    The sparseness of the factual reco= rd is in large measure due to Plaintiff=E2=80=99s basic approach to the cas= e. Plaintiff has insisted and still insists that the 2007 Small Claims Cour= t Judgment =E2=80=9Cprecludes relitigating the question of whether Defendan= t owes the payments to [Plaintiff] that she now seeks.=E2=80=9D To Plaintif= f, the 2007 Small Claims Court Judgment on its face provides all the inform= ation needed to resolve this case and any talk about anything else is not o= nly a waste of time but


    an assault on the judicial system. <i=>See Supplemental Reply in Support of Motion for Summary Judgment, Inde= x 17, p. 1, line 20 through p. 2, line 7. The success of Plaintiff=E2=80=99= s motion for summary judgment (whatever the trial court=E2=80=99s actual re= ason for granting it) has brought the matter into this Court with a drastic= ally underdeveloped record.</i=>


    = 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 pa= rties?

    1. Under ARIZ.R.CIV.P. 56 (e), where movant sub= mits a document without any official certification or any sworn statement a= uthenticating, identifying or otherwise establishing the source, origin, pr= ovenance, history or purpose of the document, and the opposing party object= s to the document=E2=80=99s lack of foundation at the first opportunity to = do so, may that document be considered as evidence for purposes of resolvin= g the R. 56 motion?
    2. Under Minn= esota 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 vari= ous relatives to receive, but his signing of the paper is not witnessed, no= r the paper endorsed with the signature of any witness, may that paper be g= iven effect as decedent=E2=80=99s will or codicil?
    3. On the record presented, may Plaintiff=E2=80=99s Exhib= it 1 properly be treated as a contract, or the memorandum of a contract, ra= ther than an (intended, if ineffectual) testamentary instrument?
    4. If Plaintiff=E2=80=99s Exhibit 1 is viewed as a contract bet= ween Plaintiff and Defendant, has Plaintiff established her entitlement to = summary judgment disallowing or overruling Defendant=E2=80=99s assertion of= the defense of lack of consideration?

    1. The Trial Court Was Right To Deny the 2007 Small-Claims Judgment Is= sue-Preclusive Effect in the Present Action.Whether collateral estoppel, bas= ed on a final judgment concluding previous litigation, applies to conclusiv= ely resolve one or more issues in subsequent litigation between the same pa= rties is a question of law which this Court reviews de novoGarc= ia v. General Motors Corp., 195 ARIZ. 510, 5= 13, 990 P.2d 1069

      (App. Div. 1 1999)

      The application of contr= olling principles set forth in the Second Restatement of Judgments to the i= ssue presented in this case is very clear and straightforward. RESTATEMENT (SECONDOF JUDGMENTS (1980), =C2=A7 28. = See Appendix A, infra.

      Defendant = could not have obtained review of the 2007 Small Claims Judgment, as a matt= er of law. A.R.S. =C2=A7 22-519. See Appendix B, infra. REST. (2NDO= F JUDGMENTS =C2=A7 28 (1) is plainly appl= icable, and sufficient in itself to compel the conclusion that the 2007 Sma= ll Claims Judgment did not inhibit Defendant=E2=80=99s assertion and litiga= tion of any of its defenses in this action.

      Even disregarding REST. (2NDOF JUDGMENTS =C2=A7 28 (1), subsection 3 of =C2=A7 28 would clearly dictate the sam= e conclusion. Once the dollar figures are adjusted for

      thirty= years=E2=80=99 inflation, =C2=A7 28, Comment d, Illustrations 6 and 7 could h= ave been written for the express purpose of showing that judgments of the S= mall Claims Divisions created by Ch. 5 of Title 22, A.R.S. A.R.S. =C2=A7=C2= =A7 22-501 through 22-524 should not be accorded issue-preclusive effect in= subsequent actions.1

      This Court could p= romote the Small Claims Divisions=E2=80=99 fulfillment of their purpose by = teaching explicitly that, under the principles set forth in the Second Rest= atement of Judgments, =C2=A7 28 (1) and (3) , Small Claims Division judgmen= ts will not be accorded issue-preclusive effect in subsequent actions. Othe= rwise, the apprehension that much more may be at stake than the modest smal= l claims complaint would suggest =E2=80=93 the recognition, by the well-inf= ormed and prudent, that however small the claim, a small-claims defendant <= i>must hire an attorney, if only to opine as to possible collateral est= oppel effects of judgment =E2=80=93 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 co= mplaint would encourage acceptance of the speedy, informal and inexpensive = dispute-resolution techniques of the Small Claims Division.

      RESTATEMENT (2NDOF JUDGMENTS= =C2=A7 28 describes explicit exceptions to the general rule of issu= e-preclusion, permitting relitigation of issues even assuming



      1. The= purpose of the Small Claims Division is to =E2=80=9Callow the inexpensive,= speedy and informal resolution of small claims,=E2=80=9D =C2=A7 22-501. In= a Small Claims Division case: the only motions allowed are for change of v= enue and to vacate judgment,

        =C2=A7 22-505; an unpaid lay h= earing officers may act as judge, =C2=A7 22-506 (B), (D); attorneys are not= allowed, =C2=A7 22-512 (B); service by certified mail is valid, =C2=A7 22-= 513; trial must be held within 60 days after an answer is filed, =C2=A7 22= -515; rules of procedure, pleading and evidence do not apply, =C2=A7 22-516= (A); discovery is not allowed, =C2=A7 22-516 (B); there is no trial by jur= y, =C2=A7 22-518; there is no appeal, =C2=A7 22- 519; and judgment must be = entered within 10 days after the close of trial, =C2=A7 22- 520 (A). See A= ppendix B, infra.

        the validity of the former judgment and the ac= tual litigation, in the former proceeding, of the issues sought to be litig= ated in the second action. Defendant would stoutly maintain that: (a.) Plai= ntiff=E2=80=99s arbitrary appropriation of the word =E2=80=9Cagreement=E2= =80=9D to refer to the unilateral declaration of donative or testamentary i= ntent (the =E2=80=9CMemo dated 4-2-86,=E2=80=9D if presumed genuine and tak= en at face value) she has sought to enforce in both actions does not disgui= se the actual character of that document, which =E2=80=93 if authentic at a= ll =E2=80=93 plainly represents an attempt to make a codicil to Arthur Clus= iau=E2=80=99s will, nor transform the true nature of the underlying subject= of Plaintiff=E2=80=99s request for relief from a matter of probate to one = of civil contract; and (b.) The defenses raised in Defendant=E2=80=99s Answ= er in this action were not actually litigated in the 2007 Small Claims Cour= t Action, or at least Plaintiff has not sustained her burden of proving tha= t 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 Cour= t, and more particularly the Small Claims Division thereof, lacks jurisdict= ion 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. =E2=80=9CThe party asserting preclusion= =E2=80=A6 has the burden of proving that an issue was in fact litigated, d= etermined, and that the determination was necessary.=E2=80=9D State Comp= ensation Fund v. Yellow Cab Co., 197 ARIZ. 1= 20, 124 =C2=B6 14, 3 P.31040 (App. Div. 1 1999= ). Here, for example, even if Plaintiff=E2=80=99s strained and artificial c= haracterization of the Memo dated 4-2-86 as an =E2=80=9Cagreement=E2=80=9D = between Plaintiff and the Defendant corporation is accepted, it would plain= ly constitute mere nudum pactum on Defendant=E2=80=99s part. See not= e 6, p. 23, infra. Defendant pled lack of consideration in its Answe= r. Where is the evidence that this issue was actually litigated in the 2007= Small Claims Court Action? Plaintiff=E2=80=99s argument that, since a mone= y judgment was entered in her favor, every possible defense must be deemed = to have been actually litigated, and actually disallowed, in the previous a= ction, is clearly inconsistent with the law of issue-preclusion. See REST. (2ND) OF JUDGMENTS, =C2=A7 27, Comm= ents e through h.

        established, would render the= rule of issue-preclusion irrelevant to Defendant=E2=80=99s 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 =C2=A7 2= 8 (1) and (3), it is not necessary to address these questions. The trial co= urt clearly committed no error in disregarding Plaintiff=E2=80=99s contenti= ons with regard to the alleged issue-preclusive effects of the 2007 Small C= laims Court Judgment. (Or, to adopt Plaintiff=E2=80=99s view of what the tr= ial court did, it clearly erred in giving that judgment issue-preclusive ef= fect.)

      3. The Trial Court Erred in Attempting to Enforce the Memo Dated 4-2-86.<= /p>In= reviewing a decision on a motion for summary judgment, the Court of Appeal= s determines de novo whether any genuine issues of fact exist and wh= ether the trial court erred in its application of the law. Maycock v. As= ilomar Dev., Inc., 20= 7 ARIZ. 495, 498, =C2= =B6 14, 88 P.3565, 568 (App. Div. 1 2004). The issu= es

        discussed below all fall within the scope of this de = novo standard.

        <= /p>

        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 it= s decision to grant Plaintiff summary judgment on a document:

          The Court grants summary judgment in f= avor of Plaintiff on her claim for breach of agreement/contract for nonpaym= ent by Defendant. Exhibit 1 to the Supplemental Reply [Index 17] constitute= s the agreement by Defendant to =E2=80=9Cprovide $350 per month to [Plainti= ff] Bonnie for a [sc. as] long as she lives or remarries.=E2=80=9D T= he agreement is not a phantom agreement as claimed by



            1. Minute entr= y order of October 29, 2008, Index 21, p. 2, 1st para.

              An uns= worn and unauthenticated photocopy of some document appears in the record a= s Exhibit 1 to the Supplemental Reply in Support of Motion for Summary Judg= ment, 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 purp= orting to supply any foundation for this Exhibit 1 or explain its provenanc= e in any way was submitted prior to the granting of summary judgment.

              <p= 11pt;padding-left:=”” 47pt;text-indent:=”” 36pt;line-heigh=”t:” 161%;text-align:=”” justify;”=””>Plaintiff=E2=80=99s one and only attempt at m= arshalling evidence authenticating or otherwise providing foundation or oth= er support for this document came after summary judgment, and after Defenda= nt had moved for reconsideration of the granting of summary judgment, in th= e Declaration of Paul Gooding attached as Exhibit A to the Response to Defe= ndant=E2=80=99s Motion to Reconsider Court=E2=80=99s Granting of Summary Ju= dgment, 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 Plaintiff=E2=80=99s Reply in Support of Motion = to Amend Complaint and Notice of Attachment [Index 19] is the document (the= =E2=80=9CAgreement=E2=80=9D) 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



            2. Response to Defendant=E2=80=99s Motio= n to Reconsider Court=E2=80=99s Granting of Summary Judgment on Amended Com= plaint without Leave for Answer, Reply, or Pertinent Discovery, Index 28, E= xhibit A, Declaration of Paul Gooding, =C2=B6 7, p. 1, lines 12- 16.

              However, Gooding=E2=80=99s assertion that the docume= nt had been offered as evidence at the 2007 Small Claims Division hearing i= s controverted by Defendant=E2=80=99s affidavits. See Defendant=E2=80=99s D= eclaration in Support of Response to Plaintiff=E2=80=99s Motion for Summary= Judgment, Index 14, =C2=B6=C2=B6 5,7, 8 and 9, p. 2; Defendant=E2=80=99s D= eclaration in

              Support of Motion for Reconsiderat= ion, Index 23, =C2=B6 4, p. 1 and =C2=B6=C2=B6 16 & 17, pp. 3-


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

              Supporting and opposing affidavits shall be made on personal knowled= ge, shall set forth such facts as would be admissible in evidence, and shal= l show affirmatively that the affiant is competent to testify to the matter= s stated therein. Sworn or certified copies of all papers or parts thereof = referred to in an affidavit shall be attached thereto or served therewith.<= /p>

              Obviously, this means that, where document= ary evidence is relied upon as supporting summary judgment, competent affid= avits, recorded testimony or the like providing foundation and authenticati= on 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 ev= identiary hearing.

              Now, if we assume fir= st that it is appropriate to reconstruct Small Claims Division proceedings = through extrinsic evidence and second that taking the affidavit of a partis= an spectator made over a year after the fact is an appropriate means of per= forming such reconstruction, it may be said that Plaintiff offered

              competent evidence5 <span= class=”3D”p””>(albeit after summary judgment had been granted) that the</span=>

              document in quest= ion =E2=80=93 presumably, though, another photocopy of said document, to sp= eak more precisely =E2=80=93 =E2=80=9Cwas offered to the [Small Claims] cou= rt as evidence=E2=80=9D 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 rule= s of evidence and procedure do not govern Small Claims Division proceedings= . A.R.S. =C2=A7 22-516 (A). See Appendix B, infra.


          <l= i=””>

          In the summary judgment context, it should be= fatal that such evidence was directly controverted. See note 4, p. 12, sup= ra. Since Gooding=E2=80=99s =E2=80=9Cfact=E2=80=9D =E2=80=93 that the docum= ent had been offered as evidence at the 2007 Small Claims Division hearing = =E2=80=93 is wholly inconsequential, however, the point seems practically m= oot.

          <p “padding-top:=”” 4pt;padding-left:=”” 47pt;text-indent:=”” 36pt;line-height:=”” 161%;te=”xt-align:” justify;”=””>At first glance, Defendant=E2=80=99s objections to Plai= ntiff=E2=80=99s Exhibit 1 might seem to have been tardily made. However, th= e unusual procedural context must be taken into account. The document was n= ot initially submitted by Plaintiff in support of her motion for summary ju= dgment. 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 = Defendant=E2=80=99s response (Index 13) to Plaintiff=E2=80=99s motion for s= ummary judgment (Index 10). There it was offered as supposedly showing what= issues were =E2=80=9Cactually litigated=E2=80=9D or =E2=80=9Cnecessarily d= etermined=E2=80=9D in the 2007 Small Claims Division Action, solely on the = strength of counsel=E2=80=99s unverified assertion that it was a =E2=80=9Cd= ocument that [Plaintiff] presented=E2=80=9D in the 2007 Small Claims Divisi= on Action. Supplemental Reply in Support of Motion for Summary Judgment, In= dex 17, p. 2, lines 11-12. In the ordinary course of procedure as prescribe= d 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 =E2=80=9Cunauthenticated, for which no fou= ndation for admissibility has even been supplied.=E2=80=9D Defendant=E2=80= =99s Response to Motion to Amend Complaint; Motion to Strike, Index 18, p. = 2, lines 16-18.Ig= noring Plaintiff=E2=80=99s demand for summary judgment on grounds of collat= eral estoppel, the trial court spontaneously embarked upon an impromptu ass= essment of Plaintiff=E2=80=99s claim on its own (original) merits, a journe= y that began and ended with the uncritical acceptance of Plaintiff=E2=80=99= s Exhibit 1 as a contract between Plaintiff and Defendant. That is how Defe= ndant has understood the trial court=E2=80=99s action, at any rate. Plainti= ff has taken a different view, wrapping herself ever more tightly in the co= llateral estoppel blanket:

          Because Plaintiff had already produced the agreement to the satisfactio= n of the court in the [2007 Small Claims Division Action], Plaintiff was no= t required to do so for this action. However, to refute Defendant=E2=80=99s= sworn denial of its knowledge of the existence of the agreement (which it = referred=C2=B7 to as a =E2=80=9Cphantom agreement=E2=80=9D), and not as a n= ew 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. Neith= er the proffering of this document to refute Defendant=E2=80=99s argument n= or Plaintiff=E2=80=99s referring to it in her Amended Complaint =E2=80=9Cre= casts=E2=80=9D Plaintiff=E2=80=99s claim {Motion for Reconsideration at 2},= nor does it =E2=80=9Crecast=E2=80=9D Plaintiff=E2=80=99s motion for summar= y judgment. {Motion for Reconsideration at 6}. Response to Motion to Recon= sider, etc., Index 28, p. 4, line 23 through p. 5, line 6; see also p. 1, l= ine 23 through p. 2, line 8.

          Plaintiff explained that her reason for submitti= ng the Gooding declaration (Exh. A to Index 28) was to controvert the decla= ration of Carole Clusiau, Defendant=E2=80=99s president, to the effect that= Plaintiff had not produced any written agreement in prior court proceeding= s. Plaintiff argued that the Gooding declaration could be accepted and the = Carole Clusiau declaration rejected because the latter =E2=80=9Cis not cred= ible.=E2=80=9D Response to Motion to Reconsider, etc., Index 28, p. 4. Sinc= e the 2007 Small Claims Division Judgment is not entitled to issue-preclusi= ve effect in this action, however (see Part IV.A, pp. 7-11, supra) t= he question of what was or was not actually litigated in the 2007 Small Cla= ims Division Action is moot.

          For whateve= r it was worth, the Gooding declaration came forward as an exhibit to Plain= tiff=E2=80=99s permitted response to Defendant=E2=80=99s motion for reconsi= deration. No permission to reply having been given, once again the ordinary= course of civil procedure afforded Defendant no opportunity to reply, or o= bject to the Gooding declaration or challenge its sufficiency. ARIZ.R.CIV.P. 7 (e). Once again, = Defendant objected anyway. Defendant=E2=80=99s Reply to Plaintiff=E2=80=99s= Response to

          Defendants Motion to Reconsider, etc., Index 29,= p. 6, line 18 through p. 7, line 4. (Prompting an indignant Motion to Stri= ke Defendant=E2=80=99s Reply to Plaintiff=E2=80=99s Response, etc., Index 3= 0.)

          For purposes of reconstructing the 2007 Small Claims Di= vision proceedings

          =E2=80=93 a purely acad= emic exercise =E2=80=93 the Gooding declaration would be inadequate, both b= ecause it is controverted and also because, accepted as true, it would only= establish that Plaintiff=E2=80=99s Exhibit 1 was offered as evidenc= e at the 2007 Small Claims hearing. For purposes of laying a foundation for= the acceptance of Plaintiff=E2=80=99s Exhibit 1 as evidence supporting sum= mary judgment in Plaintiff=E2=80=99s favor, on the basis of a fresh determi= nation of the merits of Plaintiff=E2=80=99s claim, the Gooding declaration = is useless, both because it is controverted and because, accepted as true, = it would only establish that Plaintiff=E2=80=99s Exhibit 1 came into existe= nce on or before October 24, 2007, and was in Plaintiff=E2=80=99s possessio= n on that date. Who wrote the document, who signed it, where, when, under w= hat circumstances and for what reason, into whose custody it was given and = for what purposes, how, when and under what circumstances it came into Plai= ntiff=E2=80=99s possession =E2=80=93 Plaintiff did not even pretend to prov= ide any of this foundational information.

          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 =E2=80=9Cfact=E2=80=9D principally, indeed, exc= lusively relied upon by Plaintiff before she was granted summary judgment o= n other grounds (and obstinately, in Defendant=E2=80=99s opinion, insisted = upon thereafter) =E2=80=93 to wit, the fact of the 2007 Small Claims Divisi= on Judgment =E2=80=93 is not material for the reasons discussed in Part IV.= A, pp.7-11, supra. The fact established by Plaintiff after obtaining= summary judgment =E2=80=93 that the document =E2=80=9Cwas offered to the [= Small Claims] court as evidence=E2=80=9D =E2=80=93 is not material. It is n= ot even vaguely significant. For all the record of this action shows, takin= g all of the declarations offered by Plaintiff as gospel truth, the documen= t of which Plaintiff=E2=80=99s Exhibit 1 is a photocopy could have been con= cocted by Plaintiff herself on the morning of October 24, 2007.

          1. The Memo Dated 4-2-86, If It Could Be Accepted = as Evidence, Would Appear to Represent an Attempt to Make a Codicil to Arth= ur Clusiau=E2=80=99s Will, But It Is Not a Holograph, And It Is Not Witness= ed, And So Cannot Be Given Effect.The Memo dated 4-2-86, Plaintiff=E2=80=99s= 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 t= o have been written by another hand. For the sake of the present argument, = only, let us take it at face value =E2=80=93 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 Plaintiff=E2=80=99s husband, as his own volunta= ry and intelligent act. For the convenience of Court and counsel, Appendix = C, infra, is a carefully prepared printed transcription of the conte= nt of Exhibit 1.

            This document refers to itself as =E2=80=9C= My Most recent Memo,=E2=80=9D and consists of a list of some items belongin= g to Arthur Clusiau or to corporations whose stock was owned by him, togeth= er 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 =E2=80=9Cwill=E2=80=9D or =E2=80=9Ccodici= l=E2=80=9D or anywhere expressly indicate that Arthur Clusiau=E2=80=99s dea= th is contemplated. A probate lawyer might well question whether it express= es testamentary intent =E2=80=93 even if the document is dated shortly befo= re Arthur=E2=80=99s death. The additional (extra-record) facts that on Apri= l 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 hypot= hetical probate lawyer. Of course, testamentary intent is pretty much a moo= t question if the document does not satisfy the Wills Act (of the applicabl= e jurisdiction).

            Further, the document d= escribes itself as =E2=80=9CMy Most recent Memo which will superceed Any pr= evious ones,=E2=80=9D but it makes no disposition of far the greater portio= n of Arthur=E2=80=99s 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 o= f several incorporated businesses that he had developed. Noting that the Me= mo dated 4-2-86 basically consists of a series of specific bequests of rela= tively small value, making no disposition of the major items of value in th= e estate, our probate lawyer, if he was a good one, would probably invoke t= he doctrine of =E2=80=9Cdependent relative revocation,=E2=80=9D cf. Esta= te of Lyles, 615 SO.2D <= /span>1186, 1190 (Miss., 1993). Even if the 4-2-86 Memo purported to depose= of all of Arthur=E2=80=99s estate, resort to this doctrine might be

            indicated, if the =E2=80=9Cwill superceed Any previous ones=E2=80= =9D language were deemed effective to revoke prior wills but the gifts pres= cribed 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, t= he 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 witnesse= s, as required by Minn. Stat. =C2=A7 524.2=E2=80=93502. Therefore, our hypo= thetical probate lawyer would not deem it necessary to take up the really k= notty problem suggested by the Memo: whether it impressed Arthur=E2=80=99s = stock in the various corporations it mentions with a burden to implement th= e gift Arthur desired each corporation to make, a burden binding on the dev= isees 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 t= ie in order to establish her entitlement to receive payments from Defendant= =E2=80=93 but the probate lawyer would tell her, =E2=80=9CDon=E2=80=99t bo= ther. Lacking the required testamentary formalities, the Memo is ineffectiv= e anyway. Dear departed Arthur really should have called me =E2=80=A6 .=E2= =80=9D

            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 collate= ral attacks on the probate of Arthur=E2=80=99s typewritten 1984 will in a M= innesota 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, In= c., all of which was owned by Arthur Clusiau in April, 1986, even though th= at stock passed, free and clear of any such charge or obligation, to devise= es named in Arthur

            <= /p>

            Clusiau=E2=80=99s probated will. The time = for Plaintiff to launch that effort expired in August, 1989:

            [Statutory] provisions exist for situatio= ns where a property interest was distributed to the wrong party. See Minn. Stat. =C2=A7 524.3-909 (1998); Minn. Stat. =C2=A7 524.3-1006 (1998).= Under these statutes the right of any devisee to recover improperly distri= buted property from a distributee is barred at the later of either three ye= ars after the decedent=E2=80=99s death or one year after the distribution o= f the property. Minn.Stat. =C2=A7 524.3=E2=80=931006. In re Estate of No= rdlund, 602 N.W.2910, 913 (Minn.App. 1999)= . Cf. Minn. Stat. =C2=A7 524.3=E2=80=93 108, imposing same periods as =E2= =80=9Cultimate time limit=E2=80=9D in probate proceedings.

            Thereafter, the Mi= nnesota probate proceedings were subject to collateral attack only on groun= ds of voidness, like other judgments. Porter v. Hansen, 190 OKLA. 429, 124 P.2391, 395-= 96 (1941) (final decree of probate court distributing decedent=E2=80=99s es= tate subject to collateral attack only on same limited grounds as other fin= al judgments); In re Keet=E2=80=99s Estate, 15 C= AL.2328, 100 P.2D <= /span>1045, 1048 (1940) (final order of probate court subject to collateral= attack only if =E2=80=9Cwholly invalid=E2=80=9D); =E2=80=9CThe general rul= e is that a judgment or decree of probate, unless plainly void or made with= out jurisdiction, cannot be collaterally attacked or impeached.=E2=80=9D 96=

            C.J.S. Wills =C2=A7 805 (2001).

          2. 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.Defendant was to ma= ke payments to her of $350 per month =E2=80=9Cin lieu of [Plaintiff=E2=80= =99s] receiving more under [her] deceased husband=E2=80=99s will.=E2=80=9D = 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 ac= tion, and in a sworn statement (to wit, Statement of Facts in Support of Mo= tion for Summary

            Judgment, Index 9, Exhibit A, Declaration of= Bonnie Clusiau, =C2=B6 4, p. 1, lines 8-9). Her arbitrary decision to use = the term =E2=80=9Cagreement=E2=80=9D in referring to the Memo does not mean= there was any agreement, of course. Arthur Clusiau=E2=80=99s unilateral de= termination that he wanted Plaintiff to receive more, after his death, than= she would receive under his existing will, certainly does not constitute a= n =E2=80=9Cagreement.=E2=80=9D It does constitute classical grounds for wan= ting to make a codicil and, if we assume the genuineness of Plaintiff=E2=80= =99s Exhibit 1 and accept it at face value, the document does give every ap= pearance of being Arthur=E2=80=99s attempt to do exactly that.

            Of course, it is conceivable that an agreeme= nt 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 Man=E2=80=99s Statute, A.R.S. =C2=A7 12-2251, whether there was consi= deration for the agreement, whether the agreement would be binding on subse= quent purchasers of inherited corporate stock, whether the agreement was a = =E2=80=9Ccontract regarding succession=E2=80=9D within the purview of Minn.= Stat. 524.2-514 and, if so, whether there is a signed memorandum of the ag= reement 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 j= ustify acceptance of Plaintiff=E2=80=99s Exhibit 1 (the Memo dated 4-2-86) = as evidence under R. 56 (e), Exhibit 1 by itself, and hence the record of t= his action, would clearly be inadequate to

            support the conclu= sion that any =E2=80=9Cagreement=E2=80=9D Plaintiff may enforce against Def= endant exists.

          3. Even Accepting the Memo Dated 4-2= -86 as Evidence And Arbitrarily Assuming That It Evidences an =E2=80=9CAgre= ement=E2=80=9D to Which Defendant Is a Party, There Is No Evidence The Agre= ement Was Supported by Consideration.Even though Arthur Clusiau=E2=80=99s (p= urported) signature on the Memo dated 4- 2-86 reflects no indication that h= e intended to act as an agent of the Defendant or sign on its behalf, Plain= tiff made a point of asserting (with insufficient foundation as to her pers= onal knowledge of such matters) that Arthur Clusiau had been the =E2=80=9Cf= ounder and driving force=E2=80=9D behind Defendant and =E2=80=9Cat the time= of his death=E2=80=9D was the =E2=80=9Cboss=E2=80=9D of Defendant. Stateme= nt of Facts in Support of Motion for Summary Judgment, Index 9, Exhibit =E2= =80=9CA,=E2=80=9D Declaration of Bonnie Clusiau, =C2=B6=C2=B6 5 & 6, p.= 1, lines 10-11. Apparently, the idea is that if Arthur Clusiau had authori= ty 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 person=E2=80=99s act was performed as agent for, and with the purpo= se and effect of binding, another has the burden of proving it; the mere ex= istence of an underlying agency relationship does not prove that a particul= ar act was performed by the agent as an agent, rather than as a prin= cipal. =E2=80=9CThere is a presumption that a person was acting for himself= or herself and not as an agent for another.=E2=80=9D 3 C.J.S. Agency =C2=A7 535 (2003).

            In any event, a mer= e naked promise that Plaintiff would receive some benefit, even if it was t= hat Defendant made the promise, would not give rise to an enforceable contr= act obligation =E2=80=93 the essential element of consideration would

            <p= 0pt;text-align:=”” left;”=””>

            clearly b= e lacking.Eve= n if it be said that since lack of consideration is an

            affirmative defense, Defendant bears the burden of provi= ng it, it is obvious that in this case Defendant was not given a fair chanc= e 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 authenticati= on for Plaintiff=E2=80=99s Exhibit 1 are lacking on this record, and theref= ore it should not have been accepted as evidence for summary judgment purpo= ses.

    Even assuming proper authentication = of and foundation for Plaintiff=E2=80=99s Exhibit 1 were provided, it is pr= obably unenforceable as a matter of law. Unfortunately, the undeveloped sta= te of this record prevents the Court from providing a ruling to that effect= .

    The summary judgment entered by the tri= al court should be vacated, and the matter remanded for further proceedings= .

    DATED: June 30, 2009.


    Brian K. Stanle= y,

    Attorney for Plaintiff-Appellant


    6. Cf. Demasse v. ITT Corporation, 194 A= RIZ. 500, 510-11, 984 P.21138 (1999);

    Stewart v. Phoenix Nat=E2=80=99l Bank, 49 ARIZ. 34, 49, 64 P.2101 (1937); <i=>Stevens/Leinweber/Sullens, Inc. v. Holm Dev. and Mgt., Inc.</i=>, 165 A<spa= n=”” class=”3D”s24″”>RIZ. 25, 30, 795 P.2130= 8 (App. Div. 1 1990) Allen D. Shadron, Inc. v. Cole, 2 ARIZ. APP.</spa=>

    69, 71, 406 P.2419 (1965), vacated on oth= er grounds, 101 ARIZ. 122, 416 P.2D

    555 (1966); Rubenstein v. Sela, 137 ARIZ. 563, 564, 672 P.2492 = (App. Div. 2,

    1983) (=E2=80=9C[L]ack of consideration is a valid d= efense in an action to enforce a contract=E2=80=9D) (dictum).

    <a= name=”3D”bookmark5″”>CERTIFICATE OF COMPLIANCE</a=>

    Pursuant t= o ARIZ.R.CIV.APP.PROC. 14 (b), I certify t= hat 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 typ= e may be used in tables and for footnotes and page footers and slightly lar= ger 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


    <p= 0pt;text-align:=”” left;”=””>
    THE UNDERSIGNED HEREBY CERTIFIES that two (2) copies of the foregoin= g 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 Phoeni= x on June 30, 2009.

    DATED: June 30, 2009.

    Brian K. Stanley

    Attorney for Defendant-A= ppellant

    1 Restatement (Second) of Judgments (1= 980)

    Exc= erpts

    =C2=A7 28. Ex= ceptions 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 i= ssue in a subsequent action between the parties is not precluded in the fol= lowing circumstances:

    1. The party again= st whom preclusion is sought could not, as a matter of law, have obtained r= eview of the judgment in the initial action; or

    2. The issue is one of law and (a) the two actions involve claims that are su= bstantially unrelated, or (b) a new determination is warranted in order to = take account of an intervening change in the applicable legal context or ot= herwise to avoid inequitable administration of the laws; or

    3. <h= 3=”” 9pt;padding-left:=”” 55pt;text-indent:=”” -22pt;text-alig=”n:” justify;”=””>A new determination of the issue is warranted by differences i= n the quality or extensiveness of the procedures followed in the two courts= or by factors relating to the allocation of jurisdiction between them; or<= /h3></h=>
    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 a= nd 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) bec= ause 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) be= cause the party sought to be precluded, as a result of the conduct of his a= dversary or other special circumstances, did not have an adequate opportuni= ty or incentive to obtain a full and fair adjudication in the initial actio= n.


      1. Inability to obtain review (Subsection (1) ). As noted in =C2=A7 27, Comments and i, the availability of review for the correction of er= rors has become critical to the application of preclusion doctrine. If revi= ew is unavailable because the party who lost on the issue obtained a judgme= nt in his favor, the general rule of =C2=A7 27 is inapplicable by its own t= erms. Similarly, if there was an alternative determination adequate to supp= ort the judgment, the rule of =C2=A7 27 does not apply.

      There is a need for an analogous exce= ption to the rule of preclusion when the determination of an issue is plain= ly essential to the judgment but the party who lost on that issue is, for s= ome other reason, disabled as a matter of law from obtaining review by appe= al or, where appeal does not lie, by injunction, extraordi- nary writ, or s= tatutory review procedure. Such cases can arise, for example, because the c= ontroversy has become moot, or because the law does not allow review of the= particular category of judgments.

      The except= ion 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 gran= t or deny review and review is denied; such denials by a first tier appella= te 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 whic= h 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 qual= ity and extensiveness, and the first court was fully competent to render a = determination of the issue on which preclusion is sought. In other cases, h= owever, there may be compelling reasons why preclusion should not apply. Fo= r example, the procedures available in the first court may have been tailor= ed to the prompt, inexpensive determination of small claims and thus may be= wholly inappropriate to the determination of the same issues when presente= d in the context of a much larger claim. The scope of review in the first a= ction may have been very narrow. Or the legislative allocation of jurisdict= ion among the courts of the state may have been designed to insure that whe= n an action is brought to determine a particular issue directly, it may onl= y be maintained in a court having special competence to deal with it. In su= ch instances, after a court has incidently determined an issue that it lack= s jurisdiction to determine directly, the determination should not be bindi= ng 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 lit= igation in the courts involved and the legislative purposes in allocating j= urisdiction among the courts of the state.


      * * *


      1. 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 ge= neral 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 agai= nst A for $10,000 for personal injuries arising out

        of the same occurrence, the finding of B’s negligence in the first actio= n is conclusive.

      2. The facts are the s= ame as in Illustration 6, except that the first action is brought in a smal= l claims court which has a jurisdictional ceiling of $500, and which operat= es informally without pleadings, counsel, or rules of evidence. The finding= of B’s negligence is not conclusive in the second action.

      Arizona Revised Statutes, Title 22, Chapter 5

      Selected Secti= ons

      <h3 “padding-left:=”” 33pt;text-indent:=”” 0pt;text-align:=”” justify;”=””>A.R.S. =C2=A7 22= -501. Definition

      In this chapter, unless the= context otherwise requires, =E2=80=9Csmall claims division=E2=80=9D means = a forum in justice courts in which procedures shall allow the inexpensive, = speedy and informal resolution of small claims.

      A.R.S. =C2=A7 22-505. Venue of small claims act= ions; permissible motions

          1. =

          2. The rules governing venue of civil actions i= n the justice courts govern small claims actions.

          3. A motion for change of venue and a motion to vacate a judgmen= t are the only motions allowed in a small claims action. These motions shal= l be heard only by a justice of the peace.

      A.R.S. =C2=A7 22-506. Hearing o= fficers

              1. The presiding judge of the superior court in the county may ap= point hearing officers for small claims divisions upon recommendation of th= e justice of the peace.

              2. A hearing of= ficer shall be of good moral character and shall be a qualified elector and= resident of this state.

              3. A hearing o= fficer may serve in any justice of the peace precinct within the county in = which he is a resident.

              4. A hearing o= fficer shall serve without pay.

              5. Spec= ial hearing officers may be appointed pursuant to subsection A to hear only= mobile home park landlord-tenant controversies arising under title 33, cha= pter 11 or under the rental agreement between such parties.

              6. While acting as a hearing officer for small claims,= a hearing officer has the same powers as a justice of the peace.

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      If any party objects to the hearing officer p= rior to the hearing date, that party=E2=80=99s case shall be referred to th= e justice of the peace of that precinct.

      A.R.S. =C2=A7 22-512. Parties; rep= resentation

          1. Any natural person, corporation, partnership, associatio= n, marital community or other organization may commence or defend a small c= laims action, but no assignee or other person not a real party to the origi= nal transaction giving rise to the action may commence such an action excep= t as a personal representative duly appointed pursuant to a proceeding as p= rovided in title 14.

          2. Notwithstanding s= ection 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 co= rporation.

            5. An active member or an autho= rized 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 fi= ling or prosecution or defense of any matter designated as a small claim.

          3. 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 designate= d as small claims.

          4. This section is n= ot 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 en= try of judgment in a small claims action.

          5. Attorneys-at-law may represent themselves in propria persona.

      A.R.S.= =C2=A7 22-513. Method of service


      1. In addition to any other available = methods of service, the plaintiff may serve the summons and complaint by re= gistered or certified mail. Service is deemed complete on the date of deliv= ery of the registered or certified mail to the defendant as indicated on th= e 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 pos= tal carrier or is illegible, service is deemed complete on the date the ret= urn receipt is received and filed with the court, either in person or by fi= rst class mail. The clerk of the small claims division of the justice court= may make service by certified restricted mail, return receipt requested.

      2. If the defendant cannot be served by = registered or certified mail, personal service by a process server or an au= thorized 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 th= e court.

      3. If personal service is used= , service is deemed complete on the date of delivery that is indicated on t= he certificate of service.

      4. At the ti= me a complaint is filed, the clerk shall notify the plaintiff that if the p= laintiff serves the summons and complaint by registered or certified mail u= nder 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 c= lass mail.

A.R.S. =C2=A7 22-515. Settin= g of trials; failure to appear; continuances

        1. Upon the filing of an ans= wer by the defendant, the clerk shall set the action for hearing. The heari= ng 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.

        2. Any party failing to appear= at the time set for hearing risks having an appropriate judgment entered a= gainst such party.

        3. Continuances of h= earings shall be granted only for most serious reasons.

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A.R.S. =C2=A7 22-51= 6. Trial procedure

      1. The justice of the peace or hearing officer shall c= onduct the trial in such a manner to do justice between the parties and sha= ll not be bound by formal rules of procedure, pleading or evidence except f= or statutory provisions relating to privileged communications. Any evidence= deemed material, relevant and competent may be admitted.

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

A.R.S. =C2=A7 22-518. Jury trials prohibited

There is no right to a jury in the small claims division.

A.R.S. =C2=A7 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. =C2=A7 22-520. Recording judgment


      1. The judgment by the justice of the peace or hearing officer in small claim= s issues shall be rendered no later than ten days from the close of the tri= al.

      2. All judgments shall be in writin= g and the court shall mail copies to all parties.

      3. The judgment shall clearly state the determination of the rig= hts of the parties.

      4. The judgment is due= and payable immediately after the judgment is rendered by the justice of t= he peace or a hearing officer in small claims court. Collection of the judg= ment by the prevailing party may follow the procedures as provided in secti= ons 22-243 through 22-246.

Plaintiff=E2=80=99s Exhibit 1,

Memo dated 4-2-86: 3 lined, handwritten pages


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 cl= ass equipped with

A/Cond, Automatic transmission and other popular= options this Car

Can be replaced yearly or at

the discre= tion 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, Maintenc= e & Licence expenses.

It should be termed As a Company Demo= or lease Unit. Clusiau

Sales & Rental will furnish the Car= . Listed above.


The Grand Rapids Apt. she will pay

$2500 to Clusiau Enterprise per . Mo. Clusiau Ente= rprise will also provide $35000 per Month to Bonnie for as Long as

She= Lives or remarries. Clusiau

Sales & Rental will provide $125<= span class=3D”s39″>00 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 Ponto= on Boat – Charles Clusiau

1 Diand Ring with 2 Large =E2=94=90

Stones & a Border of 16 Small =E2=94=9C A. David

Diamonds =E2= =94=98 Clusiau

1 =E2=80=93 Diamond Ring with 1 Large =E2=94=90

Diamond Cornered by 4 quarter =E2=94=9C Pat

Diamonds <span= class=”3D”s5″”>=E2=94=98 Clusiau</span=>

1 =E2=80=93 Smaller Diamon= d Ring That David Jr. David Sr. Has Now. To Clusiau

1 =E2=80=93Diamond Ring That Charles

Charles has Now to Clusia= u Gold Charm & Gold Coin to A. David Clusiau 2000 Gold Piece to Charles Clusiau Arthur Clusia= u 4-2-86


Gold Kugeran to Bonnie Clusiau Silver Dollars to Be given to

A.= David Clusiau 1000

Charles Cluiau 10<s= pan=”” class=”3D”s39″”>00</s=>

Margeret McCabe 10= 00

Pat Clusiau 1000

Bo= nnie Clusiau 2000

David Jr. 2000

$ 100 Gold Coin to Pat Clusiau

Between B= onnie Clusiau, Margeret McCabe Charles Clusiau, A. David Clusiau

a= nd Pat Clusiau

House at 26230 Ribbonwood Drive w= hich 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 fu= rniture at 26230

Ribbonwood for $15,00000 to Bonnie Clusiau. Personal Items of Sentiment= al value to be Kept at Bonnie=E2=80=99s discretion.