Apodaca v. Keeling (CA1 3/19/19)

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.

(Opinion: Apodaca v. Keeling)

Harle v. Williams (CA1 3/14/19)

Holding that an agreement preventing execution of a judgment tolls the expiration of the judgment’s effective period. This is not news but doesn’t come up all the time even though the fact situation here was routine, which may be why the court published it.

A lawsuit settlement agreement included a stipulated judgment plus a covenant not to execute as long as settlement payments were made. Judgment was entered in 2011; Defendant stopped making payments in 2014, Plaintiff recorded the judgment and began collection proceedings in 2016. At the time, 12-1551 limited the execution period to five years (its now ten) so Defendant filed a motion (presumably for dismissal, though the court does not tell us). The trial court denied it.

The Court of Appeals affirms. It is established law that the enforcement period does not begin to run as long as the judgment is not enforceable. Defendant’s argument was that this does not apply to a private agreement but North Star held otherwise over twenty years ago. The period for enforcement and for renewal did not begin to run until Defendant breached the agreement.

The opinion does not go into great detail; its function is to point out the precedent.

(Opinion: Harle v. Williams)

A Note to our Readers

A few things:

1. Some wondered why we didn’t blog anything for a couple of months. No reason other than that there are so few reported civil opinions nowadays that random distribution can open large gaps between noteworthy ones. (We mean “civil” in a traditional sense; there are opinions galore if you want to read about battling spouses, refractory juveniles, and those with various sociopolitical discontents, which courts sometimes and for certain bureaucratic purposes class as civil disputes.) Its interesting that when two cases worth blogging did finally come along (Gibson and Brittner) they came neither from a trial result nor even, in their origins, from the civil bench. That is the way of the future; the judges’ long efforts to drive civil trials from the courtroom have largely succeeded and their recent efforts to claw back some of the business largely won’t.

2. Some will want to be aware of Ansley v. Banner Health. We didn’t blog it because it is just another battle in the long and tiresome (but lucrative) balance-billing war between the plaintiffs’ bar and the hospitals. Spoiler: the hospitals lose.

3. Some citations in our blogs, both new and old, will begin to include links to cases and statutes. The Casetext legal-research platform has been reaching out to law bloggers to arrange this. We agreed to it as a service for readers, not as a plug for Casetext, though it seems a reasonable alternative to the complexities — and cost — of the Big Two if you need straightforward case-and-statute stuff.

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