Monthly Archives: June 2010

Ellsworth Land v. Bush (CA1 6/22/10)

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A brief opinion concerning jurisdiction over a garnishment.

Ellsworth had a judgment against Bush. It garnished annuity payments made to Bush by Canada Life. Bush moved to quash the garnishment, arguing that Arizona had no jurisdiction.

She relied on  a 1998 case (Desert Wide Cabling) which said that “a writ of garnishment cannot reach property outside the territorial jurisdiction of the issuing court.” This was based on section 67 of the Restatement (Second) of Conflicts, which deals with garnishment of a chattel; it requires that the chattel be in the jurisdiction. Apparently, Bush argued that an annuity is a chattel and that since it wasn’t in Arizona the court had no jurisdiction over it.

Section 68 of the Restatement, however, deals with garnishment of a debt owed the judgment debtor; it requires only that the court have jurisdiction over the garnishee, not over the cash itself. This opinion defines “debt” and “chattel” from Black’s and quickly concludes that section 68 “more properly” applies. (The court means that 68 applies and 67 doesn’t, which makes the word “more” problematical, but that’s picking nits). The Arizona Supreme Court said much the same thing in the Western Union case last year; this opinion cites Western Union to support its Restatement analysis rather than the other way around since the emphasis is on distinguishing the Restatement analysis in Desert Wide Cabling.

Bush agreed that Arizona has jurisdiction over Canada Life. This opinion therefore affirms the trial court’s entry of judgment on the garnishment.

 

(link to opinion)

Ezell v. Quon (CA1 6/17/10)

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This is a debate about what had been a settled point regarding attorneys fees on appeal.

The opinion affirms the denial of a motion to set aside a default judgment. That part is of no interest or importance. The opinion is published because the dissent wants to vent about attorneys fees. (The rule about publishing only the publishable part apparently doesn’t apply when its only a dissent that raises something publishable. But we don’t like that rule anyway, so we’re not complaining.)

Ezell, the winning party, asked for fees on appeal but cited no authority for it. That has happened many times before and the courts routinely deny the request, in a sentence or two, for that reason. This court does so, too. But Judge Gemmill must have had an epiphany, or woke up on the other side of the bed that morning, or really doesn’t like Mr. Quon, or something.

He dissents, arguing that ARCAP 21(c)(1) – request for fees to be made in the brief – doesn’t specifically require a statement of a basis for them. Requiring a basis is a “trap” for the “unwary.” If the basis for fees is “readily ascertainable” – i.e., if the party mentioned it in the court below, as Ezell had – then the court should consider it, among other “factors” such as whether the trial court awarded fees. Anything else is a “mechanical approach.”

The majority’s position is in essence that Rule 21 is a procedural rule; it governs when to say something, not what to say. The majority cites a dozen cases in the last fifteen years or so that required a statement of the basis for fees; the Appellate Handbook and Attorneys’ Fee Manual also state the requirement. And the majority politely suggests that there is a difference between the “unwary” lawyer who falls into “trap” and one who just hasn’t paid attention.

The majority fails to appreciate that paying attention can be so drearily mechanical, far less artistic than making a basic mistake and then convincing a judge to feel sorry for you that you made it.

The dissent agrees, though,  that requiring an explanation of the basis for fees would be a good idea. In a footnote, it says “a rule change is respectfully suggested” to include the requirement specifically. Supreme Court Rule 28 explains how to go about requesting a rule change; mysteriously, it doesn’t include making footnotes in dissents. Perhaps that’s another thing that people are “unwary” of. Or perhaps the rules apply only to mere lawyers.

 

(link to opinion)

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Old Republic v. New Falls Corp. (CA1 6/15/10)

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This decision allows one creditor to play shady procedural games at the expense of another concerns dismissal of a garnishment action for failure to prosecute.

AMC, Old Republic’s successor-in-interest to a judgment against A, garnished B. The garnishment was contested but the parties continued the hearing because they thought it might violate the bankruptcy stay of a related case. Three years later, B agreed that AMC could have judgment. That upset New Falls, which also had a judgment against A and wanted to garnish B. New Falls moved to intervene in AMC’s garnishment action and, on special action, the Court of Appeals let it.

New Falls then moved to dismiss the action for lack of prosecution; there had been no formal activity in if for three years. The trial court granted the motion; the Court of Appeals affirmed.

The garnishment statutes allow the hearing to be continued for good cause but not for more than ten days unless requested by the judgment debtor. AMC argued that that statute (12-1580B) doesn’t mention dismissal. But it does mention the “need for speedy determination” which, the court says, would be meaningless if the legislature hadn’t meant to include the power to dismiss.

AMC also argued that the Court of Appeals, in New Falls’ special action, had characterized the garnishment as being at an “early stage” because there hadn’t been a hearing yet. AMC had forgotten that words mean what courts choose them to mean, neither more nor less. “This comment merely addressed the timeliness of New Falls’ motion to intervene and that its motion would not disrupt a decision on the merits.” That comment might make some sense if the court explained it; as things stand it lacks as much logic as grammar. And “disrupt a decision on the merits” is of course precisely what New Falls intended to do and what this decision permits. The court goes on to explain, equally logically, that by spending time negotiating a stipulated judgment  AMC had not been prosecuting the action and had shown no apparent interest in it.

New Falls also argued Maricopa County Rule 3.6 a(3) – dismissal for failure to prosecute. AMC argued that the case was not actually dormant, that the parties were actively pursuing discovery in a later case involving the same or similar issues. But the cases were not consolidated and nothing in the earlier case file showed any activity.

The obvious question, of course, is how a voluntary newcomer to a case can complain about its lack of prosecution. Well, actually, it must not have been obvious because AMC didn’t raise it until the Reply brief, which was too late.

 

(link to opinion)