Heritage Village v. Weinberg (CA1 5/21/19)

The main point here is to decide whether you can intervene as a plaintiff in someone else’s lawsuit if you have the ability to file your own, separate suit instead.

Plaintiff, a homeowners’ association, sued Defendants in 2014 for alleged violation of the CC&Rs. In 2017 the association’s Board decided to settle the case without requiring full compliance with those CC&Rs. To try to block that the Intervenors — individual members of the association who wish to require full compliance — moved to intervene and also filed a separate suit against Defendants. The trial court denied the motion as untimely and, since Intervenors had filed their own lawsuit, unnecessary. And so the case was settled and dismissed. Intervenors appealed.

The Court of Appeals reverses.

As to timeliness, time is measured “not from the inception of the case, but from when the movant has notice that its interests are no longer being adequately represented.” Rule 24 does not allow intervention as of right until then. Intervenors filed their motion three years after the case began but only five days after the Board voted to settle it, at which time it no longer adequately represented Intervenors.

As to necessity, the rule allows intervention if, among other things, the existing action “may as a practical matter impair or impede” the intervenors’ ability to protect their interests. Arizona hasn’t addressed how the ability to file a separate action affects that. So the court looks to federal precedent, where there is a split of authority.  Because the rule says “may” and should be liberally construed the court adopts the broad approach: intervention is allowed if impairment of a substantial legal interest is “possible” without it. “This burden is minimal.”

The court finds that denying the motion could affect Intervenor’s interests, if only by denying them a say in the settlement. It vacates the judgment and remands for further proceedings.

(Opinion: Heritage Village v. Weinberg)

Normandin v. Encanto Adventures (5/17/19)

We blogged the Court of Appeals’ opinion here; go there for the facts. The Supreme Court affirms as to the City of Phoenix (its liability was not contested before the court) but reverses as to Encanto Adventures.

The court decides that recreational-use immunity applies to a “manager” under the statute (33-1551) only if the manager is “a person or entity with the power to exclude or otherwise control access to property.” This is because the purpose of the statute is to “to encourage landowners and others to open lands to recreational users and to continue to keep the lands open” and because the other persons given immunity by the statute have such authority. The opinion also briefly reviews statutory history — the category of “manager” was added later. For reasons unclear the court believes that this not only supports its holding but “refutes” the contrary view. Finally, the court says that if one who manages property without controlling access gets immunity then so would landscapers and tree-trimmers (yes, that’s what it says; read the end of ¶16).

Although Encanto Adventures was in charge of the property it did not control access to it and was therefore not a “manager” entitled to immunity under 33-1551.

This lacks considerably of being the most convincing opinion the court has issued. The legislature can of course change the statute if it chooses, though that will not end the matter: the organized war against the statute has constitutional arguments left that this opinion expressly declines to address.

(Opinion: Normandin v. Encanto Adventures)

Ironwood Commons v. Randall (CA1 4/4/2019)

A case about where a Justice Court judgment is recordable. It also makes a point about fees.

Plaintiff obtained judgment in the Pinal County Justice Court in 2011. It later recorded the judgment in Maricopa County. In 2016 it filed a renewal affidavit in Maricopa and began garnishment there. Defendant moved to quash the writ, arguing that the renewal was invalid because it should have been done in Pinal. The trial court denied the motion.

The Court of Appeals affirms. Under 33-962 a Justice Court judgment may be recorded after filing a transcript with the Superior Court — which is what Plaintiff had done — and is thereafter deemed a Superior Court judgment. Defendant argued that the transcript must be filed in the Superior Court of the same county. But the statute doesn’t say so. That is a requirement for executing by levy on real property under 22-246 but the other collection statutes don’t contain the limitation.

Defendant cited J.C. Penney (App. 1999), where a Justice Court judgment from Page was filed and recorded in Coconino but the renewal affidavit was mistakenly filed in Maricopa. That case held the renewal invalid because allowing an affidavit to be filed anywhere could lead to confusion and uncertainty by not giving judgment debtors notice of the renewal. It also said that a debtor should not have to check court records in other counties. But renewing in the Superior Court of the county where the judgment is filed, as was done here but not in J.C. Penney, gives the debtor constructive notice. The court rejects the idea of not having to check other counties because it is “untethered to any statutory language or secondary evidence of legislative intent.” “Nothing requires actual notice.”

Regarding fees, Plaintiff argued that it was entitled to them in connection with its collection efforts because the judgment awarded “all reasonable costs and attorneys’ fees incurred” in collecting. The trial court awarded fees. But fees in garnishment are allowed only if the debtor objects “solely for purposes of delay or to harass,” 12-1598.07. Language in a judgment doesn’t override the statutes. Because the record doesn’t show how much of the fee award related to the garnishment and how much to allowable non-garnishment work (e.g., renewing the judgment) the court remands the issue.

Someone seems to have worked hard on this opinion but it could have used one more major edit. The extensive discussion and analysis of J.C. Penney, for example, is interesting but its effect on this holding is not always clear.

(Opinion: Ironwood v. Randall)