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.  

(Opinion: Lee v. IMG)

The court holds that “Rule 60(c) cannot be used to set aside a compulsory arbitration award.”

Traffic lost a compulsory-arbitration case brought by Southwest and then blew the appeal date. It tried moving to set aside the award under Rule 60(c), arguing that figuring the appeal time wrongly constituted excusable neglect and also that Southwest withheld evidence. The trial court granted the motion. Southwest appealed – but from an unsigned minute entry, which it didn’t get reduced to judgment, so the appeal was dismissed. It also hadn’t reduced the award to judgment and so, back in the trial court, it moved to do so (an interesting decision, given that its position – more on which below – rested on the fact that the award had never been made a judgment); the trial judge, having already set the award aside, denied the motion. There followed a second arbitration, an appeal from that, and a jury trial, which Traffic won. (This, by the way, over a $10,000 claim. It all makes you proud to be a lawyer, yes?) Southwest appealed.

It argued, as it had wanted to in its practice-run appeal, that using Rule 60 to set aside an arbitration award was wrong. The Court of Appeals agrees. Rule 60 applies to “final judgments, orders, or proceedings,” not to “interlocutory judgments.” “[T]he arbitration award was not final  because it did not dispose of any claims between the parties.” That doesn’t happen until judgment is entered on the award. “An arbitrator does not have the power to dispose of the case.” Southwest argued that the passage of time makes an award final, citing cases under which an award itself could be appealed in cases of excusable neglect. But that applied only to a version of rule 76 that hasn’t existed since 2007.

The court reverses the Rule 60(c) ruling and vacates everything that happened after that.

The parties apparently raised with the court a number of procedural issues that could arise on remand. The court lists them but appropriately, or at least prudently, declines to rule. Arise they will, though. This is a contract case; its now all about who will have liability for the attorneys’ fees when the music stops, so both sides have every incentive to double down.

(Opinion: Southwest Barricades v. Traffic Management)

Applying the doctrine of comity and illustrating once again that an appellate court can affirm for any reason.

Plaintiff and Defendant were truckers working for a New Jersey company. While traveling together, Defendant driving, they were injured in an accident in Arizona. Both applied for and received workers comp in New Jersey. Plaintiff then sued Defendant in Arizona; Defendant’s whereabouts were unknown, he was served by publication, and his liability insurer intervened on his behalf. The insurer moved for summary judgment, which the trial court granted. Under the law of either state workers comp would be an exclusive remedy for an employee and the court concluded that New Jersey’s determination that Plaintiff was an employee (which in that state he had alleged and admitted) was res judicata. Plaintiff appeals.

The Court of Appeals affirms, though it changes the reasoning. Res judicata can’t apply because the parties weren’t the same; neither Defendant nor his liability carrier were parties to Plaintiff’s workers comp claim. The court instead applies the doctrine of comity, which is that “courts of one state . . . will give effect to the laws and judicial decisions of another state . . . , not as a matter of obligation, but out of deference and mutual respect.” The trial court may therefore, in its discretion, “accord the laws and decisions of another state ‘presumptive validity, subject to rebuttal’.”

Plaintiff argued that he was really an independent contractor – that New Jersey had made a “mistake” – but he had applied for workers comp, had done nothing to set aside the award, and hadn’t given the money back. “No compelling reason exists not to defer to . . . New Jersey.” Plaintiff also argued that this was a question of fact that prevented summary judgment but “[i]f materials submitted to a trial court raised genuine issues of material fact concerning subject matter jurisdiction, the trial court may nonetheless determine them” if they are not intertwined with the merits.

(Opinion: Gnatkiv v. Machkur)