Normally, one of the few things more boring than a condemnation trial is a condemnation appeal. But this one addresses an issue of importance; it presents a simple, basic analysis of what to do when a statute and a court rule conflict.

The City condemned Johnson’s property for its light rail system. The jury awarded her more than the City wanted to pay; the City moved – unsuccessfully – for a remittitur or new trial, then paid the money into court (which you can do in a condemnation case) and appealed.

A statute provides that the defendant/condemnee can demand receipt of the money paid into court; Johnson did so. Rule 62(g) says that appeal stays money judgments against political entities, so the City argued that Johnson couldn’t get the money despite the statute. The trial court ordered the funds released, so the City added that ruling to its appeal.

The appellate court first recognized that the statute and the rule are irreconcilable – one has to trump the other.

Which prevails is an issue of substance versus procedure. The legislature has the right to make substantive law. The Supreme Court has the right to make procedural rules. On substantive matters, statutes prevail; on procedural matters, the rules prevail.

So is paying Ms. Johnson procedural or substantive? The court decided that it was substantive. The legislature created a substantive right to the money that the rules cannot hinder or delay.

The court came to this conclusion despite feeling that there was an “element of unfairness” to it that “jumps off the page.” Our view is that that element barely crawls, much less jumps. The stay pending appeal is, after all, a special privilege that the government has created for itself; the rest of us have to buy supersedeas bonds. And the right to possession of the money balances a little bit the government’s right to immediate possession of the property; Phoenix had long since taken Johnson’s land. The court worried that a defendant might spend the money and not be able to pay any back if the government won an appeal. But that is a risk for the defendant as well for the government; any sane defendant will save enough to pay some back if necessary. It really doesn’t seem likely that Ms. Johnson will spend all her $1,046,650 in one place.

This is a case about judgments and charging liens, and why there was one of the former but none of the latter.

Langerman represented a plaintiff in suing GlenEagles. The jury awarded the plaintiff $100,000 but that was less than the defendant’s Offer of Judgment. The court awarded GlenEagles over $150,000 in Rule 68 sanctions, which was about $30,000 more than the plaintiff’s award plus costs. The trial judge signed a form of judgment in the plaintiff’s favor for the jury award and for costs and in the defendant’s favor for the sanctions.

The plaintiff then filed bankruptcy. She and GlenEagles  worked out a settlement of their respective claims by which GlenEagles would get an unsecured claim for the $30,000.

The bankruptcy judge was about to sign it when Langerman filed this action. The trial court dismissed the case. The Court of Appeals affirmed.

Langerman claimed a charging lien against the awards to the plaintiff. The court held that although there were three awards, there was for lien purposes one judgment, by which the plaintiff ended up owing money to GlenEagles. The common-law charging lien exists, the court pointed out, to ensure that the lawyer will be paid out of the fund generated by his or her efforts. Since Langerman’s efforts resulted in no fund, it had no lien.

We do not know what advice lawyer gave to client about accepting the Offer of Judgment;  it may not have been the lawyer’s fault that the client ended up bankrupt despite winning a six-figure award (though interfering with the client’s bankruptcy settlement for the lawyer’s gain does seem a bit much.) But the court pointed out, by citing a case from Nevada, that there would be no lien even if the lawyer had advised her to accept it. You can’t file a lien on a loss.

A party here pays the price for skirting the rules in what it probably thought was a clever way.

The defendants filed a Notice of Non-Parties at fault that was broad, vague, and that had the effect of hiding their defense rather than disclosing it. The trial court struck the defense and entered summary judgment for the plaintiff.

Cendejas negligently started a fire that burned down the house of Scottsdale’s insured. Scottsdale, after paying the claim, sued Cendejas. Cendejas named, as non-parties at fault, a contractor “to the extent that it performed any work . . . which may have caused or contributed to the fire,” “any subcontractor” on the same basis, and “any building inspector” “to the extent that . . .[inspection’] failed to determine [sic] an inappropriately installed building component to the extent such components are determined to have caused or contributed to the fire.”

After the deadline for non-party-at-fault notices had expired, defendant’s expert (Joe Sesniak – a crackerjack witness, by the way) opined that the fire spread because the attic installation had been installed backwards. Sesniak had done his investigation – and had presumably come to this conclusion – years before. This had not been disclosed, so the court granted Scottsdale’s motion to strike it.

Rule 26(b)(5) requires that the notice “provide the identity, location, and the facts supporting the claimed liability” of the no-party at fault. Although not entirely grammatical, the rule is  pretty clear.

The justifications that the defense tried to offer for its Notice  mirror those that lawyers presumably have in their minds when they file such things. The court pointed out what should go without saying but obviously doesn’t. No, the notice isn’t good enough simply because it does describe, more or less, what turns out later to the be defense. No, it isn’t good enough because the other side could eventually have found the defense by doing discovery into all the people and subcontractors who “may have contributed” to the fire because of a problem with some “building component.” No, the non-party-at-fault statute doesn’t give you the absolute right to point the finger at somebody else whether you obey the procedural rules or not.

The court does indicate, as prior cases have held, that late notice because of justifiable late discovery of the non-party defense may be allowable.

The court decided that the trial judge had calculated pre-judgment interest from the wrong date and remanded for recalculation. The case will still cost the defendant’s carrier nearly $100,000 more than the original claim.

It would be nice to think that this opinion will stop the practice of filing ambiguous, obscure, catch-all non-party notices. But we know too many lawyers who aren’t that nice.