The court discusses Rule 77 sanctions as between co-defendants.

The plaintiff in a motor-vehicle case sued Fisher and Edgerton, the drivers of the other two vehicles in the crash. Fisher and Edgerton blamed each other for it. The arbitrator found Fisher to be 100% at fault and awarded plaintiff about $29,000. Fisher appealed. The jury found Fisher 100% at fault but awarded plaintiff only $20,000. Although Fisher was therefore not liable to the plaintiff for Rule 77 sanctions, Edgerton  moved for them. The trial court awarded them. Fisher appealed.

Fisher made three arguments: (1) since, under a case called Vance, she was required to include Edgerton in the appeal absent a stipulation to the contrary, the plaintiff should be responsible for the sanctions; (2) she beat the arbitration award by more than 23%; (3) awarding sanctions in this context was unconstitutional.

As to #1 the court rather summarily concludes that it doesn’t matter and later suggests that the case might be different if Fisher had tried to get a stipulation excusing Edgerton from the appeal. (If, in other words, Fisher had accepted the arbitrator’s allocation of fault.) “Might” since the court raises but expressly declines to answer the question, Fisher having not sought a stipulation.

As to the 23%  the court concludes that “more favorable” applies to the allocation of fault as well as to damages. The language of the rule is “more favorable by at least 23% than the monetary relief, or more favorable than the other relief, granted by the arbitration award.” This must apply to allocation of fault, the opinion says, because “only monetary claims are subject to compulsory arbitration.”  The court seems to have overlooked the fact that because of Rule 7(c) (arbitration by agreement of reference) it is dealing with a set of rules that are not in fact necessarily limited to monetary claims. In any event, it neglects to inform us of a context in which the word “relief” has ever before been applied to findings of fact.

Finally, Fisher’s first constitutional argument analogized to punitive-damage law – she had not received fair notice of the possibility and extent of the award. The court concludes (without, of course, saying it this way) that Fisher should have known that it would construe the rule as it does in this case. As to extent, the rule limits the award to “reasonable” costs and fees; reasonableness  of fees is itself limited by a set of “non-exclusive factors” (the reference is to Granville, which the same panel issues as a companion to this case, thereby suggesting that constitutional violations can be cured ex post facto).

Fisher’s other constitutional argument was that an award against her would chill her right to a jury trial because in a case not subject to compulsory arbitration she wouldn’t be faced with liability to the co-defendant. But the rule is the same for all similarly-situated and the rule has a rational basis and legitimate governmental interest.

The court discusses Fisher’s constitutional arguments at great length while dealing with the others in way that, while managing not be be brief, is largely conclusory. Perhaps the court truly believes that its conclusions are obvious and straightforward rather than novel and far-reaching.

(link to opinion)

The court issues this opinion to announce a “non-exclusive list of factors that trial courts should consider when making fee awards under Rule 77(f).”

This was a personal-injury case.  At compulsory arbitration the plaintiff was awarded damages of $4745.05. The defendant appealed and won at trial. That was reversed. On remand, the plaintiff won and was awarded damages of $918.00. The court also, under Rule 77(f), awarded the plaintiff $72,000 in attorneys fees. (The plaintiff also got some other costs and sanctions but the case isn’t about them.) The defendant appealed the fee award.

He made constitutional arguments that the court rejects by adopting its rulings on similar arguments in Fisher.

The court then says that fees must be reasonable and mentions that other cases have set forth “in various contexts . . . factors that trial courts should consider.” Then it adds its  own list (we condense the court’s wording on some of these):

1. whether the appeal from arbitration was in good faith;

2. how close the appealing party came to doing 23% better (which, the court says, “may inform the assessment” of factor 1, so remember that a bad result now means that you were in bad faith);

3. the amount in controversy (citing a Washington case, “the proportionality of the fee award to the amount at stake remains a vital consideration”);

4. whether post-arbitration litigation could have been avoided or settled;

5. whether the failure to beat the 23% was due to new evidence;

6. the amount of the objecting party’s attorneys fees;

7. whether fees were necessary or “were generated because of the prospect of a[n] . . . award under Rule 77(f).”

The court then adds the language mandatory in all “factors” cases – no single factor is dispositive, their weight may vary from case to case, yada, yada, yada.

The court thinks that the $72,000 award “appears quite high” in light of its factors, which were of course created in order to make it seem quite high. For the most part they are sensible, though, so we will forgo our normal observation that “factors” are arbitrary, faux-legal rules that a court makes up for the moment and that may or may not mean anything the next time. We will say only that if a cost-benefit analysis is to be applied, as the court has applied elsewhere, it would better have been done by analysis than by ukase.

The court remands for reconsideration of the award.

Because it may come up on remand the court addresses another issue the defendant raised: that the plaintiff should not be allowed now an award of fees connected with the first appeal. The court agrees. Appellate fees had been held not recoverable under the predecessor to Rule 77.  And the plaintiff had made no fee request in the first appeal, though why it is necessary to add this reason isn’t clear since it will result in pro-forma fee requests that the court has already decided are futile anyway. But the court ends by adding one of those little points that are worth being reminded of: “Unless otherwise stated in an appellate decision, the court of appeals determines whether fees are recoverable in connection with an appeal and, if so, the appropriate amount.”

(link to opinion)

In the context of a nasty family feud the court mentions a couple of things worth pointing out about judgments and homesteads.

This was an action to enforce a California judgment. It is one part of a dispute about trust assets the details of which are fortunately unimportant since no one involved, including the legal types, comes out looking very good. (The problems begin with the caption, which tells us that the lead plaintiff is “John Rogone, aka Johnny Rogone, now Bingo Bada Bing.” In other words, it appears that the gentleman had changed his name to an alliterative phrase, which his lawyers then masked by reversing the normal “aka” sequence – legal name first – so as not to compromise their client’s gravitas. Not too serious, perhaps – but that’s apparently not the only document somebody played games with.)

The defendants reacted to the California judgment with some real-property transactions that the Arizona court, after trial with an advisory jury, deemed fraudulent as to creditors and set aside. After signing a form of judgment the court had to “clarify” it with an amended judgment. One of the defendants then moved onto one of the properties and claimed a homestead exemption (the trial court eventually denied it on equitable grounds), which resulted in motions culminating in a second amended judgment. Then (apparently; the sequence isn’t entirely clear) the court set aside the second amended judgment. Both sides took the case up and it bounced around the appellate system awhile, eventually going back to the trial court for the entry of a third amended judgment. (Of this and other things the Court of Appeals spares us details; this is wise and merciful since the factual and legal records are likely of the read-it-and-weep variety). Then both sides appealed again.

The plaintiffs argued that the trial court shouldn’t have set aside the second amended judgment. They made some procedural arguments; those are stupid desperate unenlightening, so we will skip them. Substantively, the question was whether the court had discretion to set aside under 60(c)(6). The Court of Appeals holds that it did.

The problem with the second amended judgment was that someone had slipped into it “multiple, material and surreptitiously added provisions not authorized by any prior court ruling.” For example, it included a slanted factual description of the California lawsuit. The Court of Appeals notes that “[e]ven if this were a fair characterization of the evidence (a question we do not decide), a judgment should not recite details of the proceedings.” The language was “superfluous to the required description of the court’s decision.”

The judgment also included rulings not made and relief not prayed for. The court concludes summarily that this justifies relief, which is fine since that should go without saying.

(Who slipped the junk into the judgment? Why did it get past the other side? The opinion needn’t and doesn’t – and we’re glad of it – give quite enough background to clarify some of those things, though the reader can draw conclusions. So this is mostly a monument to our oft-repeated proposition that judges will sign anything. That the judge will remember the case, read the document, comprehend the document, or even know how such documents should be drafted is, on one or more of those points, expecting too much. It is apparently the courts’ official position that judges are free to sign anything if no objection is filed. Some of us remember stricter days but of course things are much better now in this, the best of all possible worlds.)

The defendants argued that the trial court erred by denying the homestead exemption. The Court of Appeals agrees. “’The Arizona homestead statute is not ambiguous.’ Nowhere does the statute [33-1101] require a person to satisfy notions of equity to qualify for the exemption.” The plaintiffs relied on a bankruptcy case and a 1928 case that arguably applied equity; the court distinguishes them because they concerned “a conveyance or wrongdoing involving the homestead property itself.” Although the defendants did commit a fraudulent conveyance, the plaintiffs “did not seek damages arising out of that conduct. Instead, they sought to collect on a judgment that was based on mishandling of unrelated trust assets.”

(There were also arguments – variously fact-specific or silly – about fee awards. The court affirms them.)

(link to opinion)