[THIS OPINION HAS BEEN SUPERSEDED]

This is a long but lightweight opinion about the borrowed-servant doctrine.

Tarron worked for Phelps Dodge at the Miami smelter. He fell through a gap in a platform left by the removal of an access ramp. Bowen supplied the employees who had removed the ramp, so Tarron sued Bowen under respondeat superior. Bowen argued that the employees had been lent to PD and that Bowen had no right to control them. On cross-motions, the trial court granted summary judgment for Tarron on this issue. Bowen then lost at trial and appealed.

The Court of Appeals reversed, finding questions of fact. Tarron’s argument was that the contract between PD and Bowen assigned control to Bowen. But there was testimony that that provision didn’t apply or wasn’t followed. The court held that the contract was not necessarily controlling and that the jury can consider all the evidence.

Tarron also argued that Bowen could have respondeat superior liability even if PD did as well, since a servant can have two masters when the two have a joint right to control. But joint control is a question of fact, which was controverted here.

And that, 31 pages later, is it. It is hard to understand why this one was published. There is nothing novel here legally, which the opinion makes clear by discussing nearly all the cases at great – and entirely needless – length. The issues are neither complex nor unusual. And the opinion is hardly a sterling example of the art – it is ill-organized and much, much too long.

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.)