Costs/Judgment Enforcement: Appellate Court Reversal In All Other Respects Except For Affirmance On One Nonsuit Ruling As To One Plaintiff Also Meant Pro-Defense Costs Ruling In First Trial Was Reversed As To Other Nonsuited Plaintiff

Given Plaintiffs Were Unified in Interest, Reversal and Potential Exposure From First Plaintiff Required Reversal of Costs Ruling Too.

     Our local appellate court, in a “by the Court” writ decision involving Justices O’Leary (presiding), Fybel, and Thompson, decided that appellate directives usually “mean what they say.” In this case, a lower court erred by not vacating a motion to quash attorney’s fees enforcement proceedings until another trial was held in Ducoing Mgt. Inc. v. Superior Court, Case No. Go50457 (4^th Dist., Div. 3 Sept. 19, 2014) (published).

     What happened in this cause was that the appellate court issued a prior opinion in an appeal from two plaintiffs, both nonsuited at trial, who were represented by the same counsel and presented a unified theory of recovery. The appellate court in the prior opinion affirmed the nonsuit judgment as to the second plaintiff but reversed the judgment “in all other respects,” remanding the matter for a retrial by the first plaintiff—meaning the first plaintiff could pursue everything on remand—and awarding no costs on appeal. However, on remand, the defense sought to execute on a $50,089 cost award against the nonsuited second plaintiff, with the lower court obliging the request.

     The appellate court decided that its “in all other respects” dispositional language also entailed the costs award against second plaintiff. Fairness, in the reviewing court’s opinion, also supported the result: it would be unfair for the defense to recover all their trial costs as the prevailing parties in the action against the second plaintiff when the matter is still left to be tried. Even under the costs “unity of interest” theory, “it is unjust to permit [the defense] to recover all of their trial costs for the first trial from petitioner [second plaintiff] when defendants may be liable for the exact same trial costs if they lose to [first plaintiff] at retrial.” (Slip Opn., p. 11.)

     So, depending on the results from the retrial (which also may depend on apportionment), second plaintiff gets a reprieve for now, with our local appellate court indicating that “[w]e do not ‘hide elephants in mouseholes’” when fashioning dispositional appellate language in opinions.

1924.  Library of Congress.