Crowe v. Gierst (D1 3.27.25)

We have had too much sun today and are getting cranky. This case from Navajo County makes us even more cranky. Feuding neighbors, the Crowes and the Giersts, settled their differences in 2016. Years later they are back at each other. This time the dispute went to a nine-day jury trial. The jury found in favor of the Crowes for the Giersts breach of the earlier settlement agreement but awarded them no damages. The jury found for the Giersts on their counterclaim for breach of good faith and fair dealing and awarded 25k, part of which was for punitive damages. Both sides claimed victory. On appeal, the Giersts contended they were entitled to attorney’s fees in addition to the jury award. The Giersts, however, had presented their attorney fee claim during trial as part of their damage claims, a whopping $162,750. There are only a few rare instances when attorney’s fees constitute damages, and this isn’t one of them. It was error to present this to the jury. The Giersts invited the error and cannot complain. Unlike the fees, however, the Giersts did not request these from the jury. They could be entitled to their costs, but the trial court never explained its reasons for denying them. The case is remanded so the trial court can explain. As for claims by both sides for fees on this appeal, the court of appeals awarded the Crowes their fees and costs (our guess is the fees will be 25k and no one gets anything. Two weeks in trial and thousands and thousands in wasted fees by both sides.  We question why this is a published opinion. We are tired of reading about feuding neighbors. When neighbors settle a dispute, we demand a fence or, at a minimum, an ADR clause in the settlement agreement.

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