The Court of Appeals has an immunity allergy. The Court worked hard to tell us that therapists who perform court-ordered treatment and evaluation are not entitled to judicial immunity. We recall the controversial sterilization cases from years ago, when courts recognized judicial immunity and protected not only judges but also the doctors and hospitals who performed the operation. Those decisions may be controversial, but we don’t recall that courts have changed their minds.

As part of his probation for voyeurism, Kapusta was ordered to attend behavioral health therapy. After attending therapy, he was discharged for “displaying minimal commitment to the treatment process,” violating a “group payment policy,” being disrespectful toward staff and therapists, and failing to follow the rules. His therapists reported to probation, and a petition to revoke his probation was filed. At a disposition hearing, the court suspended his sentence, reinstated probation, and extended his probation for six months. Two years later, he sued his therapists, alleging they misrepresented facts to the court and defamed him. The trial court held that the therapists were entitled to absolute immunity, and the Court of Appeals reversed. The Court of Appeals concluded that the defendants are unlike probation officers, who have been entitled to immunity because they are not statutorily required to supervise probationers on behalf of the court. The drafting of the discharge summary, the Court of Appeals concluded, “did not require anyone to exercise discretion or reach a conclusion.” No thought or discretion in discharging or writing reports? There is a dissent that interprets prior cases on judicial immunity differently. Division Two is giving our supreme court more work. And if immunity doesn’t work here, isn’t there a causation problem?

Because the Municipal Risk Retention Pool is an insurer created under state law and member municipalities, the notice of claim statute applies. A.R.S. § 12-821.01 Plaintiff missed both the notice of claim deadline and the statute of limitations deadlines for claims against public entities. The Court of Appeals affirmed summary judgment for the Risk Pool. The second issue was whether a separate bad-faith claim can be asserted against a third-party administrator. No. The Court of Appeals agreed that there is no contractual relationship between a third-party claim administrator and an insured, and that the insured had no direct claim. There was also no “joint venture.” But, the Court of Appeals concluded that the trial court erred in awarding the administrator attorney’s fees under § 12-341.01. This makes sense when there is no contractual relationship. Apparently, plaintiff’s counsel has lost this same issue in federal district court. The defendant argued that the award of fees should be upheld because the case was frivolous. While the district court case may be persuasive, it is not precedent. The Court of Appeals sent the issue of frivolity back to the trial court. One judge tacked on a concurrence and acknowledged that, although no one raised it, the Risk Pool is a public entity and is therefore subject to the Open Meeting and Public Records law. One may ask, “So, what?” Many public entities have risk departments, claim handlers, and attorneys. Is the judge suggesting that this is all an open book?

This opinion makes our heads hurt. Arizona Rule of Civil Procedure 76(d) provides that if a claim goes to arbitration, the arbitrator makes an award, and no appeal is taken, then after 30 days any party may file a motion to enter judgment. If no one does anything, after 125 days the clerk can send notice, and then after another 30 days, the court “must dismiss the action without prejudice.” Plaintiffs Sanchez won at arbitration and was awarded approximately $37k.

But then no one did anything. The clerk sent out the notice, but the court never dismissed. Two years later, the plaintiff woke up and filed to confirm the arbitration award as a judgment. The judgment was entered when the defendant failed to object. The defendant then woke up. The defendant argued that because 76(d) required the court to dismiss the suit, the court lacked power to enter the judgment and that Sanchez failed to prosecute her case. The defendant successfully had the trial court set aside the judgment and dismiss the lawsuit without prejudice. The plaintiff then refiled the lawsuit, but that too was dismissed by the trial court for failure to prosecute. The court then awarded the defendant its $27k in fees in the second lawsuit for creating a “procedural quagmire.”

The court of appeals held that the trial court was correct the first time it entered judgment on the arbitration award. A case does not end on its own without court action. We learn from a United States Supreme Court decision, Dolan v. United States, that Rule 76(d) is best understood as a claims-processing rule, not a jurisdiction rule. Because no court action was taken, the plaintiff was within his rights to request judgment on the arbitration award. Bottom line: the plaintiffs keep their arbitration award and judgment, and everything the trial judge did at the defendant’s urging, including awarding the defendant fees, was vacated.

The court of appeals should have ended its opinion there. Instead, we get unnecessary explanations of the history behind Rule 76(d) and the ability to refile. We get explanations of Rule 41, Rule 58, federal case law, and “manifest injustice.”  These excursions are unnecessary and lack the modesty we desire from appellate courts.

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