The issue here concerns an award of attorney’s fees in an appeal from an administrative decision.

Keystone installed tile in Kang’s house. Kang complained to the Registrar of Contractors that Keystone did a bad job. The Registrar investigated the claim and revoked Keystone’s contractor’s license. Keystone sought judicial review of that decision; the Superior Court upheld it. Kang then successfully moved for his attorney’s fees in the Superior Court, arguing that the action arose out his tile-installation contract with Keystone. Keystone appealed the award of attorney’s fees. The Court of Appeals reversed.

The opinion first points out that, while an administrative proceeding before the Registrar has been held not to be an “action” under 12-341.01, Kang was asking only for his fees in the Superior Court review, which is an “action.”

The question then becomes whether the action arose out of contract.

The court held that it did not. The “basis for the action is purely statutory.” The Registrar had acted under 32-1154(A), which specifies when the Registrar can revoke a contractor’s license. The issue in the Superior Court was whether the Registrar’s action under that statute was valid. The Keystone-Kang contract, said the appellate court, was not the “cause or origin” of the matter and was peripheral to whether Keystone had violated its contractual duties as a contractor.

Kang argued that the problem here was bad workmanship,  that the statutory duty to perform in a workmanlike manner  is taken from implied warranty rules (as the court hints but does not actually point out, the duty is stated not in the statute but in the Administrative Code), that he would get fees under implied warranty, so he should get fees here. But the Registrar sanctioned Keystone under the statute, not the contract. (For reasons not stated in the opinion, Kang didn’t sue Keystone for breach of contract.)

The opinion is just a trifle flabby but is otherwise nicely written. It does not, though, address one question that probably occurs to you: in a statutory dispute between the Registrar of Contractors and Keystone, why was Kang even a party? Perhaps because an appeal from an administrative agency determination must include as defendants all other parties to the administrative proceeding; if so, Kang was presumably there because the Registrar included him in its administrative Complaint, not because Keystone wanted to sue him.

And what, you ask, was the Registrar’s position in this appeal? The Registrar – that zealous protector, that tireless civil servant, that stalwart defender of the common homeowner against rapacious and incompetent tradesmen – punted. The Registrar appeared only as a “nominal party,” a maneuver by which the State lets the homeowner bear the burden – at the homeowner’s expense – of trying to uphold the Registrar’s decision so as to escape its own liability for attorney’s fees (under a separate statute) if the homeowner loses.

The reason lawyers make ridiculous arguments – apart from not realizing that they’re ridiculous – is that once in a while some judge buys them. Witness this special action about a supersedeas bond.

Gravel Resources of Arizona obtained an $18.4 million judgment against Salt River. Salt River asked the trial court to set the amount of the bond at $5.5 million, arguing that it couldn’t afford a larger one. The trial court thought that it didn’t have the authority to do that, so Salt River took special action.

ARCAP 7(a)(2) clearly says that the trial court can set the bond in an amount different than the judgment. But Gravel Resources quoted a passage from Bruce Church v. Superior Court, 160 Ariz. 514, for a proposition that the court accepted (paraphrasing a bit): the court must require a bond in the full amount if the appellant is too poor to post it. The trial court’s order seemed to recognize that that doesn’t make any sense but blamed Bruce Church.

The thrust of this opinion is that that is essentially the opposite of what Bruce Church, and the cases it cited, said. There are typically two situations in which you’re looking at 7(a)(2) relief: when the appellant is so poor that it can’t post the full bond and when the appellant is so rich that it doesn’t need to. Under Bruce Church there must, in the latter case, be objective evidence that the appellant can pay the judgment. But that requirement doesn’t apply (and this is where the trial court went wrong here) to the former case. If the appellant is too poor to pay, the trial court can give it a break.

The Court of Appeals then addressed the the issue of “what factors the court should consider” in doing so. (Perhaps this issue was raised in the Petition; it wasn’t necessarily raised by the facts or the proceedings below.) The opinion’s analysis of the factors – as usual where “factors” are involved – consists more of a reference to facts that seem to be affecting the court in this case than a statement of principles that will help much to decide the next one. In any event, as near as we can figure it the factors are (1) the collectible value of the debtor’s assets as of the date of judgment, (2) the degree of their liquidity, (3) any “complexities” the creditor would face in collecting the judgment, and (4) what assurances there are that the debtor’s financial condition will not deteriorate during the appeal. The opinion then tells us – as always where “factors” are involved – that “these factors are not exclusive.”

The case was remanded to the trial court for determination of the bond in light of this opinion.

(The back-story here is that Salt River’s owner has plenty of money – but its an Indian tribe. The trial court had ruled that the waiver of sovereign immunity applied only to the sand and gravel operation, from which the assets of the tribe are carefully insulated. Dealing with tribal businesses is not necessarily a bad thing but too many people do so without fully realizing that the chances of recovering from tribal assets is – unless the tribe has been badly advised – essentially zero.)

There must have been a helluva lot of money at stake.

After her husband was murdered, Suarez (“Wife”) made claims under his two term life insurance policies. The carriers (AmFam and Fidelity) were reluctant, in part because she was a suspect in his murder, so they filed interpleader actions. The carriers paid the money to the clerk and the case became a contest between Wife and  the husband’s sister (“Sister”), as P.R. for their mother (“Mother”), who has been previously been the policies’ beneficiary.

The case went to a bench trial. The trial court found that the AmFam change of beneficiary (from Mother to Wife) was a forgery but that the Fidelity change was valid. Wife and her son pleaded the Fifth; based on the resulting inference and on other evidence, the court found that Wife would be found guilty of her husband’s murder.

The court therefore ruled for Sister since A.R.S. 14-2803 says that you can’t be an heir or beneficiary of someone you murder.

Wife appealed; there really must have been a helluva lot of money at stake.

She argued, first, that the evidence was insufficient to support the conclusion that she murdered her husband. The opinion therefore recites the ample evidence of her guilt.

Wife next argued that the statute requires that she be the “killer” and that her son might have done the actual killing. The court held that it even if she had her son pull the trigger she would be criminally accountable for murder.

Wife argued that she can’t be held responsible for murder because there was (in the view of the police) no probable cause to arrest her. But the statute does not require probable cause; it simply requires that the trier of fact find that she “would be found criminally accountable.”

Wife argued that the premiums were paid with community funds and that the statute can’t eliminate her community-property interest. The statute says that “A wrongful acquisition of property or interest by a killer not covered by this section shall be treated in accordance with the principle that a killer cannot profit from that person’s wrong.” The court held that since the Legislature created community property, the Legislature can limit it, and the statue limits it so that it doesn’t apply to murderers. It also cited a California murder-for-insurance case that resolved the community property issue by holding that term policies should be valued as of the moment before the murder – when they have no cash value.

Finally, Wife argued that the evidence was insufficient to support the finding that the husband’s signature on the AmFam change-of-beneficiary form was a forgery. What she apparently meant – and what most who challenge findings really mean – is that the trial court should have favored her evidence, or looked at it all differently. But what she had to show is that there was no evidence to support the finding, and of course she couldn’t.

So what do Wife and her lawyers end up with after about four years of litigation? A record of pleading the Fifth to murder, pointing the finger at her son, raising fairly laughable  arguments (except the decent community-property argument), and an opinion publicizing it all to the world. There must have been . . . well, you know.

(Brief editorial: The court referred to 14-2803 as the “slayer statute” as, presumably, did the parties. The tendency of lawyers and courts to refer to statutes by name is a relatively recent phenomenon. Legislatures have done so for years but that’s a game for laypeople that we didn’t used to play.  Call your statute “slayer,” or whatever, if you will but don’t make the mistake of thinking that that’s somehow a mark of your sophistication and experience; it is rather the opposite.)