Marconi v. Kaplan, 11682
| Decision Date | 18 April 1975 |
| Docket Number | No. 11682,11682 |
| Citation | 111 Ariz. 525,534 P.2d 267 |
| Parties | Louis MARCONI and Loretta Marconi, husband and wife, Appellants, v. B. R. KAPLAN and M. J. Kates, Appellees. |
| Court | Arizona Supreme Court |
Norman Herring, Phoenix, for appellants.
Browder & Gillenwater by Robert W. Browder, Phoenix, for appellees.
This appeal was filed by the plaintiffs to set aside the judgment of the superior court dismissing their action with prejudice. The essential issue presented by this appeal is whether the action of the trial court in entering a judgment of dismissal with prejudice was legally correct.
The record discloses that in November, 1970 the plaintiffs, husband and wife, filed a damage action in the Superior Court of Maricopa County, Cause No. C 241696, against the defendant podiatrists for negligence and performing surgery without consent. In due course, the defendants answered the complaint denying the allegations of the complaint.
During the year 1971, settlement negotiations were entered into between plaintiffs and defendants acting through their attorneys. Various demands and counteroffers were made which culminated on December 17, 1971, three days before the trial date, with an agreement by the parties to settle the action for the sum of $2500. The attorney for the defendants filed a notice of settlement with the trial court, and he sent a request to New York to the attorneys for the insurance carrier for a draft in the amount of the settlement.
Upon receipt of notice of settlement, the trial court, acting through The Honorable Paul W. LaPrade, vacated the trial setting and ordered that the cause be placed on the inactive calendar for 60 days to allow for the presentation of a formal written stipulation and order of dismissal.
When 30 days had passed and the plaintiffs had not received their settlement, on January 25, 1972 the attorney for the plaintiffs wrote to the defendants' attorney complaining of the delay and demanding immediate action. Counsel for the defendants responded by again writing to the attorneys for the insurance carrier enclosing a copy of the letter from plaintiffs' counsel and urging that the attorneys for the carrier give immediate attention to the request. On February 9, 1972 the attorneys for the insurance carrier replied to the letter from counsel for the defendants acknowledging that his first letter had been overlooked and that action was being taken on the request to secure a draft.
On February 14, 1972, counsel for the plaintiffs advised defendants' counsel that the plaintiffs no longer wished to go along with the settlement, feeling that the insurance company had acted in bad faith. Plaintiffs' counsel also advised that new counsel would be entering the case and that plaintiffs' counsel would be withdrawing.
On February 17, 1972, the insurance company forwarded the draft in the amount of $2500 from the New York office to counsel for the defendants. Upon receipt of the draft on February 21, 1972, counsel for the defendants sent the draft, a release form, and a stipulation and order of dismissal to counsel for the plaintiffs. The defendants' counsel pointed out that his clients were declining to accept the withdrawal of settlement, maintaining that the parties had a binding agreement and the defendants expected it to be honored.
On March 29, 1972, no stipulation and order of dismissal having been received by the trial court, the trial judge signed an order of dismissal of the action, dismissing it without prejudice.
By April 28, 1972, new counsel had appeared for plaintiffs and filed a new action in the superior court (Cause No. C 261575), alleging substantially the same claim as that stated in the first action. The defendants appearing by the same counsel answered, denying negligence and asserting the affirmative defense of settlement. Prior to filing of the answer in Cause No. C 261575, counsel for the defendants, on April 25, 1972, filed a motion to compel settlement in the first cause, Cause No. C 241696. The motion was heard by The Honorable Howard Thompson. After considering the matter, Judge Thompson ordered the dismissal set aside, the cause restored to the active calendar, and granted the motion of the defendants to compel settlement. On June 20, 1972, Judge Thompson signed a formal written Judgment dismissing the action of the plaintiffs with prejudice. This appeal followed.
The action was originally placed on the inactive...
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Shaffer v. Insurance Co. of North America, 12001
...by appellee to establish the affirmative defense of settlement was not proper. The correct procedure is suggested in Marconi v. Kaplan, 111 Ariz. 525, 534 P.2d 267 (1975). When a new issue arises in the relationship of the parties, it must be pled in a proper manner. Rule 15(d) of the Rules......
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Poggi v. Kates, 12820
...foregoing order and judgment are vacated, and the previous order of dismissal without prejudice is reinstated.' Marconi v. Kaplan, 111 Ariz. 525, 527, 534 P.2d 267, 269 (1975). On remand, the defendants moved for summary judgment claiming the defense of accord and satisfaction was an absolu......