This opinion is published to make a point about Rule 68; expanding the holding a bit, we’ll also use it to make a point about the practice. The parties in this contract case, though, mostly argued about attorneys’ fees – that each was really the winner and the other was the loser and, anyway, didn’t play fair, and etc., etc.; you’ve heard it all before and so has the court, which didn’t try to add anything new to the law, so we’ll ignore that part.
ING fired Lee and refused to pay money due him under a severance agreement. Lee sued for breach of that agreement. He included a claim for treble damages under 23-355; the trial court gave ING partial summary judgment on it. ING then made an OJ on all claims except attorney fees; Lee accepted it. He then appealed the treble-damages ruling.
The Court of Appeals affirms, holding that the issue was no longer appealable. A judgment entered on an OJ is on the merits; its “a final resolution of all claims at issue.” Lee argued that the trial court had somehow (the details aren’t given) promised to “’preserve all parties’ rights of appeal.” But the court can’t change those rights; as the trial judge later explained, “I can’t confer something I don’t have.”
And that’s our moral; it may seem – and it is – simplistic but lawyers demonstrate every day that they either don’t know it or hope others don’t: you can’t preserve a right you don’t have. How often do they purport to “reserve the right” to do something? There are times – rarely – when that’s appropriate. But its normally a useless announcement of ignorance – ignorance of whether the right exists and, if it does, of whether and how to preserve it.