Fidelity National Financial v. Friedman et al. (8/19/10)

This is an opinion on certified questions from the Ninth Circuit concerning judgment renewal.

Fidelity took judgment against the defendants, in federal court in California, in 2002. It registered the judgment here and unsuccessfully tried to collect it. In 2008 the defendants moved in Arizona federal court to bar further collection efforts because Fidelity hadn’t renewed the judgment. The court denied the motion, concluding that the judgment had been renewed by Fidelity’s attempts to collect it, which included the Arizona collection efforts and a lawsuit it filed against the same defendants, again in California, in 2006, alleging that their attempts to avoid paying the judgment violated RICO. Defendants appealed. The Ninth Circuit certified the questions of whether either collection efforts or filing a related case in another state renews a judgment.

Under 12-1551(B) a judgment must be renewed within five years by affidavit or by “an action . . . brought on” it. Fidelity argued that “’action’ includes any matter or proceeding in a court,” quoting 1-215. But the Supreme Court, after reviewing 1551’s common-law and statutory predecessors – which long predate 215 – determined that it refers to a common-law action on a judgment, not “any matter.”  In that kind of “action” the creditor alleges the old judgment and prays for a new one on the same debt. It wouldn’t make sense to have a well-defined affidavit process if “any matter” would do just as well. And prospective creditors of the judgment debtor would have a hard time knowing if the judgment was still in force if “any matter” could keep it alive rather than something clearly on the docket.

So, Fidelity’s acts did not renew its judgment.

It has been so long since anyone filed a real action on a judgment that Fidelity may actually have believed its arguments. The result shouldn’t surprise those who have worked with the statute or know anything of the history recited by the court, though. It is probably time to remove the “action on a judgment” language, just as an earlier version of 1551 removed scire facias from the law.

But perhaps what confused Fidelity and the District Court was AAU v. Wood, 209 Ariz. 137 (App 2004), which held that intervention counts as “an action . . . on” a judgment. In a footnote this court says “we express no opinion whether, in light of today’s opinion, the court of appeals” was correct. In light of today’s opinion it obviously wasn’t, and was so wrong that the opinion really should mention it, but that’s a problem since Justice Pelander, who joins this unanimous opinion, wrote AAU. That was not his finest hour. AAU might also explain why he did not write this opinion (Justice Hurwitz did) even though he addressed the same basic issue last year in Jones, which was not consistent with AAU either and which the Supreme Court later ordered de-published anyway.

Speaking of Justice Hurwitz, this isn’t quite as clean an opinion as we’ve come to expect from him. “The starting point in resolving the questions before us is the common law background,” he tells us at the beginning. That’s true. But it would have been useful to say why it’s true – because the background illuminates the legislative intent of the present statute – at the beginning, too, rather than waiting until the end of the legal-history analysis to explain why it’s there. But we’re not complaining too much since we’re suckers for legal history; he gets extra points, in our book, for using scire facias in a sentence (although we think it should be set in italics, and that Court of Appeals should be capitalized, two things this opinion doesn’t do).


(link to opinion)