The lawyer for co-defendant 1 called the lawyer for co-defendant 2 to discuss the
Court of Appeals decision that agreed with the appeal filed by co-defendant 2 and
determined that a new trial should occur because the superior court erroneously admitted
evidence offered by the plaintiff in a wrongful death claim. “We need to discuss a new joint
scheduling order, since we will be trying the case again because the erroneously admitted
evidence was adverse to both of our clients,” said the lawyer for co-defendant 1. The
lawyer for co-defendant 2 responded “I agree that the erroneously admitted evidence was
adverse to both our clients,” said the lawyer for co-defendant 2, “but I have already
discussed the joint scheduling order with the plaintiff’s counsel, and I intend to proceed to
defend this case without the presence of you and your clients” “What!”, exclaimed the
lawyer for co-defendant 1, “Plaintiff’s counsel has agreed to dismiss my client from the
new trial?” “No,” explained the lawyer for co-defendant 2, “the million dollar judgment
against your client is final because you did not appeal the first case.” Silence ensued.
The Uniform Contribution among Tortfeasors Act that Arizona, at A.R.S. §12-
2501 et. seq, applies to persons who become “liable in tort.” Which, with narrow
exceptions, makes the liability of each defendant several only and not joint. “Each
defendant is liable only for the amount of damages allocated to that defendant in direct
proportion to that defendant’s percentage of fault, and a separate judgment shall be
entered against the defendant for that amount.” As such, co-defendant 1 was probably not
entitled to rely on, and ride the coat tails of, the appeal by co-defendant 2. Co-defendant 1
needed to file its own separate and timely appeal of the adverse judgment against it in
order to obtain relief from the verdict and judgment against it.
In addition, Arizona follows the “general rule, where only one of several parties
appeals from a judgment, the appeal includes only that portion of the judgment adverse to
the appealing party’s interest and the judgment is considered final as to the non-appealing
parties.” In re Estate of Friedman, 217 Ariz. 548, 557, 177 P.3d 290, 299 (App. 2008).
There is an exception to this general rule “[w]here the part (of a judgment) appealed from
is so interwoven and connected with the remainder…that the appeal from a part of
it…involves a consideration of the whole…if a reversal is ordered it should extend to the
entire judgment. The appellate court, in such cases, must have power to do that which
justice requires, and may extend its reversal as far as may be deemed necessary to [sic]
accomplish that end.” Id.
Finally, Bogard v. Cannon & Wendt Elec. Co., Inc., 221 Ariz. 325, 212 P.3d 17
(App. 2009) is instructive. Bogard establishes that all questions presented to an appellate
court will be considered as finally determined, and all questions not expressly affirmed or
reversed will, by implication, be deemed affirmed. In Bogard, Court of Appeals reversed
the trial court’s grant of summary judgment in favor of the defendant employer on
plaintiff’s discrimination claim, as well as its decision in favor of the employer on
plaintiff’s retaliation claim based on stipulated facts, and remanded the case for further
proceedings. The trial court, in the subsequent trial after remand, allowed plaintiff to
present new evidence of damages even though it ruled before the first trial that: (1) her
damages were limited to $3,539.59 because she failed to mitigate them; and (2) she
could not legally recover alleged emotional distress damages. In a second appeal,
after the trial court entered a $300,000 judgment in favor of the plaintiff for “mental pain
and suffering” and $10,000 for lost wages. The defendant argued the trial court erred by not
adhering to its original ruling limiting the plaintiff’s damages. The trial court admitted
additional evidence of the plaintiff’s damages because it found the Memorandum Decision’s
“broad directive reversing summary judgment on ‘all claims’ is consistent with the
conclusion that the court did not intend to limit the damages that the plaintiff could try to
prove on remand.” In the second appeal, the plaintiff asserted that, even though she never
challenged the trial court’s original ruling limiting her damages in the first appeal, and
the Memorandum Decision was silent with respect to the damages issues, nevertheless,
the Memorandum Decision’s directive reversing summary judgment on “all claims”
thereby “swept the whole case clean” and allowed the trial court to revisit its initial
damages limitation ruling. In the second appeal, the Bogard court rejected the plaintiff’s
position. It held the trial court erred by revisiting its earlier damages limitations ruling
because that issue was not raised in the first appeal and, as such, was affirmed by
implication. The Bogard court ruled the trial court had no jurisdiction to review or
change its earlier damages limitations ruling. Therefore, the judgment in favor of the
plaintiff was modified to award her only $3,539.59 in lost wages.
“Waiver” continues to be the dreaded enemy of the tri-ppellate lawyer. Deep
understanding of what a judgment is, when it is entered, the effect of a judgment, the time
in which a notice of appeal must be filed, and how to properly frame appellate issues
is the best way to combat this enemy and avoid that dreaded call to the malpractice
carrier.
