Marconi v. Kaplan, No. 11682

• Court: Supreme Court of Arizona
• Writing for the Court: HOLOHAN; CAMERON, C.J., and LOCKWOOD
• Citation: 111 Ariz. 525,534 P.2d 267
• Decision Date: 18 April 1975
• Docket Number: No. 11682
• Parties: Louis MARCONI and Loretta Marconi, husband and wife, Appellants, v. B. R. KAPLAN and M. J. Kates, Appellees.

Page 267

534 P.2d 267 111 Ariz. 525 Louis MARCONI and Loretta Marconi, husband and wife, Appellants,
v.
B. R. KAPLAN and M. J. Kates, Appellees. No. 11682. Supreme Court of Arizona, In Division. April 18, 1975.
Rehearing Denied May 28, 1975.

Norman Herring, Phoenix, for appellants.

Browder & Gillenwater by Robert W. Browder, Phoenix, for appellees.

HOLOHAN, Justice.

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.

[111 Ariz. 526]

Page 268

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...