A useful wrinkle to remember about sanctions for an unsuccessful appeal from compulsory arbitration. Then a practice pointer on appeal.
Defendant rear-ended a car containing the Apodaca family. In this action they all sued her. Liability was not contested but she appealed the compulsory-arbitration award and achieved a smaller trial verdict, allocated among the four plaintiffs. Two of the four plaintiffs won jury awards that were less than 23% smaller than that awarded by the arbitrator. Plaintiffs therefore moved for costs and fees under Rule 77(h). Because the total judgment was more than 23% smaller Defendant opposed them. The trial court granted the motion.
The Court of Appeals reverses. “The proper analysis is to compare the total arbitration award and costs to the total judgment and costs on appeal.” This is because the rule speaks of “the judgment” and “the arbitration award.” Plaintiffs had a case — Fisher (2014) — but that involved a different issue: the effect of comparative negligence, allowing a co-defendant held blameless at both levels to collect 77(h) sanctions even though the plaintiffs’ award against the culpable defendant was more than 23% smaller.
The court denies Defendant’s request for fees “because it was made only in her reply brief.” The rule (ARCAP 21) says specifically that it “must” be made in the opening or answering brief. This happens all the time and makes things easy for the court. Which do people do too late — think about fees or read the rule about them? That’s also easy, since lawyers never stop thinking about fees but rarely think to read.