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)

A short reminder of the limits of the state’s power.

Dolphin, which manages condos in Rocky Point, contracted with Baker to service their air conditioners. When Dolphin tried to cancel the contract, Baker sued. Under 32-1153, only licensed contractors can sue to recover for services that must be licensed; Baker wasn’t licensed in Mexico, so Dolphin moved to dismiss. The trial court granted the motion.

The Court of Appeals reversed. Arizona has the power to regulate professions and occupations only in Arizona. Its licensing statutes do not apply to other jurisdictions. The court cites an analogous case (Kenyon 1985) regarding work done on the Navajo reservation and, as is this judge’s wont,  a case from another state, this time California. The court points out that this is true even though both parties were Arizona residents and the contract was entered into here, so perhaps that’s where the trial court had gone wrong.

But this raises a serious question we’ve always had: why vacation in a place where you need an air conditioner?

This case holds that the testimonial privilege applies to arbitrations.

In an IME report, Dr. Maric criticized Dr. Yeung’s treatment of a patient. Yeung sued Maric for defamation and false-light invasion of privacy. Maric argued the privilege, Yeung that it didn’t apply because the IME was done not for a lawsuit but for a UM/UIM (the opinion doesn’t say which) arbitration. The trial court granted Maric summary judgment; Yeung appealed.

The court first confirms that the testimony of witnesses is absolutely privileged at trial and deposition, and also in “reports, consultation, or advice” or other “preliminary steps” so long as it has reference to litigation pending or seriously contemplated. The opinion explains why this is a good thing.

Comments in the Restatement say that the privilege applies to tribunals exercising “judicial functions.” The Arizona Supreme Court held (Craviolini, 1961) that private, contractual arbitrators exercise quasi-judicial functions. It therefore applies to UM/UIM arbitrations, which are private and contractual. Certain judicial safeguards must apply but those are ensured by the Uniform Arbitration Act. (By a very short extension of the court’s reasoning, then, the privilege applies to any arbitration governed by the Act, which effectively means all of them.)

The opinion is 14 pages long but that’s about all there is to it. The court briefly addresses a couple of Yeung’s factual arguments and, not quite so briefly, reassures itself that it must be right because other states think so, too. Other than being too long, though, it is clean and well-written.

(Link to opinion)