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Associated Aviation Underwriters v. Wood9/29/2004
emental relief in the form of a money judgment in a DRA such as this, pursuant to § 12-1838. And, through both their complaint-in-intervention and their post-trial motion, Intervenors sufficiently applied for such relief in the trial court. As AAU suggests, however, whether Intervenors are entitled to a monetary award in this action turns on the more difficult question of whether the underlying Gerardo judgments have expired. AAU contends those judgments have lapsed and, without them, Intervenors' request for supplemental relief in this action necessarily fails.
We agree with AAU that whether or not the Gerardo judgments have expired is pivotal to Intervenors' request for a monetary award. Those judgments established TAA/City's liability to Intervenors. If collection on that liability is now barred because the Gerardo judgments have expired by operation of law, AAU would have no resulting indemnity obligation for that liability. In other words, if the Gerardo judgments entered against TAA/City have expired, TAA/City has no liability obligation to Intervenors and AAU is not required to indemnify TAA/City. In that scenario, as a matter of law, Intervenors would not be entitled to supplemental relief in the form of a monetary award from AAU. Under § 12-1838, awarding Intervenors " urther relief" against AAU would not be "proper" if no underlying tort liability exists on which AAU's indemnity obligation can be based. As noted above, see 135, supra, Intervenors apparently concede as much by stating that the Gerardo judgments provide the "sole basis" for their request for monetary relief. Accordingly, we next address whether the Gerardo judgments have expired.
C. Continued Validity of Gerardo Judgment
Section 12-1551, A.R.S., provides:
A. The party in whose favor a judgment is given, at any time within five years after entry of the judgment and within five years after any renewal of the judgment either by affidavit or by an action brought on it, may have a writ of execution or other process issued for its enforcement.
B. An execution or other process shall not be issued upon a judgment after the expiration of five years from the date of its entry unless the judgment is renewed by affidavit or process pursuant to section 12-1612 or an action is brought on it within five years from the date of the entry of the judgment or of its renewal.
Intervenors concede that they failed to renew the Gerardo judgments by affidavit pursuant to A.R.S. § 12-1612 but nonetheless contend those judgments have not expired under § 12- 1551.
Intervenors argue, inter alia, that "even if the clock did begin to tick on [the Gerardo ] judgment pursuant to A.R.S. § 12-1551, [they] have renewed their judgments by pursuing this case, which is an action on those judgments pursuant to A.R.S. § 12- 1611." Section 12-1611 states: "A judgment may be renewed by action thereon at any time within five years after the date of judgment." According to Intervenors, an "'action on the judgment' s any action that seeks to test the enforceability of judgment against the judgment debtor or a third party."
In response, AAU first argues this action cannot constitute an action on the Gerardo judgments because Intervenors filed their complaint-in-intervention herein almost two years before the Gerardo judgments were entered. Second, AAU maintains an action on a judgment must be an action against the same defendant against whom the judgment sought to be enforced had been entered.
We cannot accept AAU's first argument because it rests on a mere fortuity over which Intervenors had no control: AAU's filing of this DRA. Instead, we analogize In
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