Poggi v. Kates, No. 12820

CourtSupreme Court of Arizona
Writing for the CourtCAMERON
Citation115 Ariz. 157,564 P.2d 380
Docket NumberNo. 12820
Decision Date11 April 1977
PartiesLoretta Jean POGGI, Appellant, v. Michael J. KATES and Elaine Kates, his wife, Barry R. Kaplan and Sheila Kaplan, his wife, Appellees.

Page 380

564 P.2d 380
115 Ariz. 157
Loretta Jean POGGI, Appellant,
v.
Michael J. KATES and Elaine Kates, his wife, Barry R. Kaplan and Sheila Kaplan, his wife, Appellees.
No. 12820.
Supreme Court of Arizona, In Division.
April 11, 1977.
Rehearing Denied May 24, 1977.

[115 Ariz. 158]

Page 381

Herring & Stephan by Norman Herring and Robert Stephan, Jr., Phoenix, for appellant.

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

CAMERON, Chief Justice.

Loretta Jean (Marconi) Poggi, plaintiff below, appeals from an order of the trial court granting the motion of the defendants for summary judgment.

We have only one question on appeal and that is whether the plaintiff had the right to cancel or rescind a settlement of a personal injury suit when the defendants failed to pay the amount agreed upon within a reasonable length of time.

In reviewing the action of the trial court in granting a motion for summary judgment, the evidence and all reasonable inferences drawn therefrom will be viewed in a light most favorable to the party against whom the judgment was rendered. Sax v. Kopelman, 96 Ariz. 394, 396 P.2d 17 (1964); Serna v. Statewide Contractors, Inc., 6 Ariz.App. 12, 429 P.2d 504 (1967).

The following facts are necessary for a determination of this matter on appeal. Loretta Poggi sued the defendants, Drs. Kates and Kaplan, podiatrists, for malpractice arising out of an operation on her foot. This suit was filed in November of 1970. On 17 December 1971, after extended negotiations and three days prior to trial, an oral agreement was entered into whereby the plaintiff agreed to accept $2,500 in exchange for dismissal of the action with prejudice and a release. A notice of settlement was filed with the court and the judge vacated the trial setting and placed the cause on the inactive calendar pursuant to Rule XIX(c), Local Rules of Practice for the Superior Court of Maricopa County, 17A A.R.S. More than thirty days later, on 25 January 1972, plaintiff's attorney wrote defendants' attorney complaining of the delay and demanding immediate compliance. The record indicates the defendants' attorney was making an attempt to obtain the settlement draft from the corresponding law firm in New York. Nevertheless the draft was not forthcoming and on 14 February 1972 plaintiff's counsel wrote the defense counsel as follows:

'Dr. Mr. Browder:

'I have just spoken to our clients, and they wish me to inform you that they feel your company has acted in bad faith and they no longer wish to go along with the settlement agreement. I advised them that because of our participation in this matter that we could no longer represent them, and they are going to seek other counsel, probably in the Phoenix area. You can assume by this letter that you will be contacted by other counsel and litigation will continue.

Very truly yours,

/s/ Harold M. Cole

HAROLD M. COLE'

On 21 February 1972, defense counsel sent a $2,500 settlement draft and release with stipulation for dismissal which the [115 Ariz. 159]

Page 382

plaintiff rejected. On 29 March 1972, the cause was dismissed without prejudice by the court pursuant to rule.

Plaintiff engaged a new attorney and filed a complaint alleging the same claim and the defendants answered with the affirmative defense of settlement. After various motions, the trial judge set aside the dismissal of the first case, restored the matter to the active calendar, and granted defendants' motion to compel settlement. This was followed by a written judgment dismissing the action of the plaintiff with prejudice.

An appeal followed and we held:

'The new action (C 261575), with the answer setting up the affirmative issue, is the proper case to litigate defendants' contentions that a new agreement has been substituted for the tort claim of the plaintiffs. With the issues joined and all parties on notice of those issues, the matter can be heard.

'The order of the trial court setting aside the dismissal without prejudice and entering judgment with prejudice in Cause No. C 241696 is reversed, and the 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...

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6 practice notes
  • Giovanelli v. First Federal Sav. and Loan Ass'n of Phoenix, No. 1
    • United States
    • Court of Appeals of Arizona
    • September 19, 1978
    ...will be viewed in a light most favorable to appellants, the party against whom the summary judgment was rendered. Poggi v. Kates, 115 Ariz. 157, 564 P.2d 380 (1977); Sax v. Kopelman, 96 Ariz. 394, 396 P.2d 17 (1964); Serna v. Statewide Contractors, Inc., 6 Ariz.App. 12, 429 P.2d 504 (1967).......
  • Estate of Kerr, Matter of, No. 1
    • United States
    • Court of Appeals of Arizona
    • August 9, 1983
    ...Ariz. 148, 598 P.2d 511 (1979); Mobile Home Estates v. Levitt Mobile Home Systems, 118 Ariz. 219, 575 P.2d 1245 (1978); Poggi v. Kates, 115 Ariz. 157, 564 P.2d 380 (1977). If, when viewed in this manner, there is the slightest doubt as to the material facts, the judgment will be reversed fo......
  • Jabczenski v. Southern Pac. Memorial Hospitals, No. 2
    • United States
    • Court of Appeals of Arizona
    • March 3, 1978
    ...view the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to appellants. Poggi v. Kates, 115 Ariz. 157, 564 P.2d 380 Appellants are physicians who were employed by the Southern Pacific Employees Hospital Association (SPEHA), a non-profit corpora......
  • Leschorn v. Xericos, No. 1
    • United States
    • Court of Appeals of Arizona
    • December 7, 1978
    ...Russell, 47 Ariz. 38, 53 P.2d 411 (1936); Howard v. Norton-Morgan Commercial Co., 11 Ariz. 158, 89 P. 541 (1907). And in Poggi v. Kates, 115 Ariz. 157, 160, 564 P.2d 380, 383 (1977), our Supreme Court quoted the following passage from Aritex Land Co. v. Baker, 14 Ariz.App. 266, 482 P.2d 875......
  • Request a trial to view additional results
6 cases
  • Giovanelli v. First Federal Sav. and Loan Ass'n of Phoenix, No. 1
    • United States
    • Court of Appeals of Arizona
    • September 19, 1978
    ...will be viewed in a light most favorable to appellants, the party against whom the summary judgment was rendered. Poggi v. Kates, 115 Ariz. 157, 564 P.2d 380 (1977); Sax v. Kopelman, 96 Ariz. 394, 396 P.2d 17 (1964); Serna v. Statewide Contractors, Inc., 6 Ariz.App. 12, 429 P.2d 504 (1967).......
  • Estate of Kerr, Matter of, No. 1
    • United States
    • Court of Appeals of Arizona
    • August 9, 1983
    ...Ariz. 148, 598 P.2d 511 (1979); Mobile Home Estates v. Levitt Mobile Home Systems, 118 Ariz. 219, 575 P.2d 1245 (1978); Poggi v. Kates, 115 Ariz. 157, 564 P.2d 380 (1977). If, when viewed in this manner, there is the slightest doubt as to the material facts, the judgment will be reversed fo......
  • Jabczenski v. Southern Pac. Memorial Hospitals, No. 2
    • United States
    • Court of Appeals of Arizona
    • March 3, 1978
    ...view the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to appellants. Poggi v. Kates, 115 Ariz. 157, 564 P.2d 380 Appellants are physicians who were employed by the Southern Pacific Employees Hospital Association (SPEHA), a non-profit corpora......
  • Leschorn v. Xericos, No. 1
    • United States
    • Court of Appeals of Arizona
    • December 7, 1978
    ...Russell, 47 Ariz. 38, 53 P.2d 411 (1936); Howard v. Norton-Morgan Commercial Co., 11 Ariz. 158, 89 P. 541 (1907). And in Poggi v. Kates, 115 Ariz. 157, 160, 564 P.2d 380, 383 (1977), our Supreme Court quoted the following passage from Aritex Land Co. v. Baker, 14 Ariz.App. 266, 482 P.2d 875......
  • Request a trial to view additional results

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