Abril v. Harris, 2

Citation157 Ariz. 78,754 P.2d 1353
Decision Date17 December 1987
Docket NumberCA-CV,No. 2,2
CourtCourt of Appeals of Arizona
PartiesAnthony Aleman ABRIL, Jr., and Jack Levine, (non-party), Plaintiff/Appellants, v. John D. HARRIS, Anthony J. Palumbo and Harris & Palumbo, P.C., Defendants/Appellees. 87-0266.


This appeal is taken from the trial court's granting of defendants' motion for summary judgment.

Appellant Abril was the driver in a hit-and-run accident in which one pedestrian was killed and a second seriously injured. Abril's passenger later informed the police that Abril was the driver. The injured pedestrian sued Abril for his injuries. Abril was insured by Globe American Casualty Company (Globe) with a policy limit of $15,000. Globe refused to settle, and the pedestrian obtained a judgment against Abril for $110,000. Abril's attorney in that suit is not involved in this case.

Faced with an excess judgment against him personally for $95,000, Abril retained the law firm of Levine & Harris to represent him in a "bad faith" suit against Globe. He executed a contingency fee agreement with Levine & Harris on June 1, 1981. On November 2, 1981, the law firm was dissolved. The record indicates that the dissolution was less than amicable. When given the choice of which lawyer he wished to continue with his case, Abril chose Harris. In late 1984, Harris succeeded in obtaining a judgment against Globe for $1,300,000 in damages, including $1,000,000 in punitive damages. In January 1985, Globe appealed from that judgment. On April 9, 1985, Abril fired Harris and his firm, Harris & Palumbo, and retained Harris' former partner, Levine, as his attorney. On May 29, 1985, the original complaint in the case before us was filed against Harris, Palumbo and two other attorneys individually and Harris & Palumbo, P.C. alleging five causes of action and seeking over $41,000,000 in damages. All of the allegations in the complaint related to Harris' representation of Abril in the suit against Globe. As early as July 8, 1985, Abril's attorney, Levine, was aware that Globe in its appellate brief had conceded that it was responsible for the $95,000 judgment against Abril and that Globe was only appealing from the judgment in excess of that amount.

An amended complaint was filed March 12, 1986 against Harris & Palumbo, P.C., and both attorneys individually, alleging breach of contract, bad faith and seeking declaratory relief. The trial court granted defendants' motion for summary judgment. The court found:

The Court finds a portion of the case to be groundless. The Court finds a portion of the case was not brought in good faith. The Court finds a portion of the case was brought for harassment purposes. The Court finds this litigation has been motivated more by greed than the desire to rectify wrong. Because a majority of the case was brought without substantial justification, pursuant to A.R.S. § 12-349, defendants shall be entitled to recover reasonable attorneys fees to be assessed against plaintiff's counsel.

Appellant Abril raises 12 issues on appeal, none of which have merit. He argues that he has shown damages and mental distress as a result of appellees' conduct and that the court erred in granting summary judgment. Appellant Levine separately appeals from the imposition of attorney's fees against him personally. We affirm.

Abril first argues that the imposition of the excess judgment against him as a result of the pedestrian's suit caused him damages. Without discussing the merits, if any, of this argument, we note that none of the appellees were involved in that lawsuit. Abril further argues that having the judgments become a matter of record caused him mental distress. Be that as it may, he must look to others for any recovery, because appellees were not responsible for those judgments, nor their recording. Abril claims, however, that appellee Harris damaged him when Harris told the pedestrian's attorney the dates that the judgments against Abril were due to expire. Harris had the other attorney's file of the accident case against Abril and was using it in his action against Globe. The other attorney called Harris to inquire about the date the judgments expired. Harris provided the information from the file. We fail to see how this damaged Abril. If Harris had refused to provide the information, the attorney would have demanded that his file be returned to him. We also note that the judgments were a matter of public record. We fail to see how Abril was damaged by Harris' actions.

Abril next argues that the trial court erred in denying his request for declaratory relief. He sought a declaratory judgment that appellees were not entitled to any contingent fee for representing him in the action against Globe. As noted above, Abril entered into a contingency fee agreement with Levine & Harris. When that firm was dissolved and Abril chose to be represented by Harris, the fee agreement remained in effect. An arbitrator decided how the fees due the firm would be divided between the two attorneys. Any fee owed by Abril is governed by the arbitrator's decision. At the time declaratory relief was sought, the case against Globe was on appeal. The amount of the fee, if any, was therefore unknown, and the trial court was correct in denying declaratory relief. Merritt-Chapman & Scott Corporation v. Frazier, 92 Ariz. 136, 375 P.2d 18 (1962). The trial court dismissed this count of the complaint without prejudice, and we note that Abril has brought a new action concerning attorney's fees in superior court.

The next claimed error is the trial court's award of attorney's fees to appellees against appellant Levine personally. Appellants first claim that the award violated Levine's due process rights. Appellees, in response, argue that Abril has no standing to assert a violation of Levine's due process rights. They maintain the issue is not properly before this court.

It is the duty of this court to inquire into its jurisdiction to consider matters before it. Musa v. Adrian, ...

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25 cases
  • Levine, Matter of
    • United States
    • Arizona Supreme Court
    • 18 Febrero 1993
    ...that judgment was affirmed, and the court of appeals awarded attorney's fees against respondent for $9,418.25. Abril v. Harris, 157 Ariz. 78, 754 P.2d 1353 (App.1987). Respondent filed a petition for review in the Arizona Supreme Court, which was denied with a fee award against respondent f......
  • Dowling v. Stapley
    • United States
    • Arizona Court of Appeals
    • 16 Abril 2009
    ...from a settlement among the parties to the litigation; only an aggrieved party can appeal from a judgment. Abril v. Harris, 157 Ariz. 78, 80-81, 754 P.2d 1353, 1355-56 (App.1987).28 This rule also applies to persons who unsuccessfully seek to intervene in a case. In re Questar Gas Co., 175 ......
  • Douglas v. Governing Bd. of Window Rock
    • United States
    • Arizona Court of Appeals
    • 28 Mayo 2009
    ...by reversal of the judgment, and (3) a legal right or its pecuniary interest has been directly affected. Abril v. Harris, 157 Ariz. 78, 80-81, 754 P.2d 1353, 1355-56 (App.1987). ¶ 8 In the context of class action certification rulings, we have previously held that an individual plaintiff ha......
  • Bennett v. Baxter Group, Inc.
    • United States
    • Arizona Court of Appeals
    • 10 Febrero 2010
    ...of appeal "from `the Judgment entered against [him].'" 166 Ariz. at 284, 802 P.2d at 435 (alteration in Wieman); see also Abril v. Harris, 157 Ariz. 78, 81, 754 P.2d 1353, 1356 (App.1987) (attorney included in notice of appeal). Thus, because the Baxters did not file a proper notice of appe......
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