Tag: Civil Procedure Rules

Beware settlement agreements and gag orders

In reality, Life does not go according to Hoyle.

We are all quite aware that many lawsuits are settled with a gag order attached, especially when CAI is involved (not in this lawsuit).  To my surprise and disbelief, in Arizona, a gag order is not material to an agreement between to parties in a lawsuit.

A recent Arizona appellate decision involved a court ordered settlement conference in which the parties verbally agreed to the terms of the settlement and a written agreement was prepared to be submitted to the court. The homeowners removed the HOA’s version with respect to a gag order, informing the HOA they did not agree to the gag order. The court was informed that the digital recording of the settlement conference was not available for an unknown reason, whereupon the court then ordered litigation and a hearing as to the settlement agreement.  H’mmmm!

The trial court held that the HOA’s version was valid, which not surprisingly was appealed. Following Arizona’s precedent, the court would support the trial court’s ruling “if the trial court’s disposition is correct for any reason.” It seems that the judicial system back’s its own kind – judges make no mistakes. The justification for upholding the HOA’s version was found in Rule 80(a) of the rules of civil procedure.  

First, the fact that the parties agreed to put the agreement in writing doesn’t count if there is an agreement.  Second,

The law “favors enforcement when it is clear that the parties intended themselves to be bound,” and “absent or uncertain terms are not fatal to the enforceability of an otherwise binding contract.

In other words, picky, picky no matter what impact it has on the parties. How can the court hold that an agreement was reached when there are 2 versions and only one party signed? Yes, the judicial system has its flaws!  BEWARE! 

Source: Robertson v. Sierra Pines, CA-CV 23-0069 (ARIZ. App. Div1 (9-14-2023).

Never, ever say this to the court

In this Arizona appellate decision [1], the plaintiff, Danko, failed to follow the Rules of Civil Procedure that every state has.  The defendant, Leavitt,  filed for dismissal due to a deficient brief, upon which the plaintiff begged the court for leniency for failing to comply with the Rules. He claimed that he was filing pro per, without a lawyer.   Plaintiff further asserted that “his claims should not be dismissed because of “meaningless” rules.” The court “found Danko had not sufficiently pleaded facts to support any of his other claims and dismissed them with prejudice as well” as required by the Rules.

The terse reply by the court makes the point that rules are rules.   

“In furtherance of these goals, we have “a responsibility to see that litigants conform to an acceptable, minimal level of competency and performance and we owe this responsibility to the judiciary, the bar and, more importantly, to all litigants and the people as a whole. An appellant who fails to make a bona fide and reasonably intelligent effort to comply with the rules will waive issues and arguments.”  

“Waived” means the party surrenders all rights to continue.

The court made a strong statement on not granting any leniency to pro per litigants;

Further, we hold litigants like Danko who choose to proceed without representation to the same standards as attorneys. Indeed, requiring a reviewing court to expend significant time and effort to make a party’s arguments for them not only wastes finite judicial resources, but is additionally improper because it trespasses dangerously close to the realm of impermissible advocacy.

Take heed!  Rules are rules. Learn the rules before going to court.

Notes

1.  Danko v. Leavitt, No. 1 CA-CV 22-0525 (Ariz. App. Div.1, 8-17-2023).