United States: You CAN Be Too Agreeable With Orders And Judgments

Last Updated: January 20 2016
Article by P. Michael Jung

Trial lawyers frequently come to agreements about the relief to be awarded in a case in light of pretrial rulings or a jury's verdict. Where there is no legitimate dispute on the subject, that is, of course, the professional thing to do. But care must be taken if the ruling or verdict will be contested on appeal or in further trial court proceedings, lest the court hold that the agreement forecloses future complaint.  A recent Fifth Circuit opinion illustrates one of the potential traps into which even careful counsel can fall.

Ybarra v. DISH Network, L.L.C., involved 15 telephone calls that allegedly violated the Telephone Consumer Protection Act. The trial court granted summary judgment for the plaintiff on 7 of the calls, after which the parties stipulated to dismissal of the claims relating to the 8 remaining calls.  The stipulation reserved DISH's right of appeal as to the partial summary judgment, but on appeal, the plaintiff nevertheless argued waiver.

The Fifth Circuit panel was bound by a prior opinion, Amstar Corp. v. Southern Pacific Transportation Co., that has been roundly criticized by other courts and by commentators.  There, after a partial summary judgment limiting the measure of damages, the parties agreed to a judgment for the limited damages, purporting to reserve the plaintiff's right to appeal the limitation.  The court held that the agreement was ineffective because the judgment was a consent judgment and therefore unappealable.

Fortunately for DISH Network, the Fifth Circuit distinguished Amstar because the consent judgment there went to the same question – damages – that was presented in the appeal.  Construing the parties' consent in Ybarra as going only to the nonsuit of the unadjudicated claims, the court entertained DISH's appeal as to the adjudicated claims on its merits.

So what are the lessons of Ybarra and Amstar?  Perhaps the most important lesson is that the losing party can be professional and cooperative without risking waiving the right to appeal. Had the plaintiff in Amstar, for example, stipulated that under the damage measure established by the summary judgment ruling, the correct amount of damages would be $X, and then let the court formulate a judgment for that amount (perhaps by signing a judgment proposed by the defendant), the appeal would have been preserved, because the plaintiff's agreement would have been only to a factual matter and not to the legal ruling embodied in the summary judgment.

This lesson applies even to interlocutory rulings.  Although there is sometimes a strong temptation to be the one to draft an order implementing an adverse ruling (in order to minimize the damage, to set the ruling up for appeal, or simply to move the case along), tendering an agreed order or even a proposed order can waive any error. Much better to submit a proposed order that requires the judge to check a box to indicate, for example, whether your opponent's motion for summary judgment is granted or denied. That way, an appeal or further trial court motion claiming that the court checked the wrong box won't get dismissed on the ground that you agreed to the result and therefore can't complain.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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