text: Professional Malpractice & Ethics - Justia Case Law Summaries http://law.justia.com/summaryfeed/professional-malpractice-ethics/ 2015-10-05T08:43:32-08:00 Justia Inc http://www.justia.com/ Justia Law https://justatic.com/v/20150929c/shared/images/social-media/law.png Copyright 2014 Justia Inc http://law.justia.com/cases/federal/us/577/14-848/ Maryland v. Kulbicki 2015-10-05T06:30:14-08:00 2015-10-05T07:32:47-08:00 Kulbicki shot his girlfriend during the weekend before a scheduled hearing about unpaid child support. At Kulbicki's 1995 trial, an FBI Agent expert on Comparative Bullet Lead Analysis (CBLA) testified that the composition of elements in the molten lead of a bullet fragment found in Kulbicki's truck matched the composition in a fragment removed from the victim's brain; a similarity one would "'expect'" if "'examining two pieces of the same bullet,'" and that a bullet taken from Kulbicki's gun was not an "exac[t]" match to those fragments, but was similar enough that the two bullets likely came from the same package. The jury considered additional physical evidence from Kulbicki's truck and witness testimony and convicted Kulbicki of first-degree murder. Kulbicki sought post-conviction relief. In 2006 Kulbicki added a claim that his attorneys were ineffective for failing to question the legitimacy of CBLA. By then, the Court of Appeals of Maryland had held that CBLA evidence was not generally accepted by the scientific community and was inadmissible. In that court, Kulbicki abandoned his claim of ineffective assistance with respect to the CBLA evidence, but the court vacated Kulbicki's conviction on that ground alone. The Supreme Court summarily reversed, stating that the lower court indulged in the "natural tendency to speculate as to whether a different trial strategy might have been more successful." Given the uncontroversial nature of CBLA at the time of trial, the judgment below would demand that lawyers go "looking for a needle in a haystack," even when they have "reason to doubt there is any needle there." View "Maryland v. Kulbicki" on Justia Law 2015-10-05 federal U.S. Supreme Court Per Curiam 14-848 http://law.justia.com/cases/nevada/supreme-court/2015/66346.html Tam v. Eighth Judicial Dist. Court 2015-10-01T10:07:12-08:00 2015-10-01T13:25:46-08:00 After the death of Charles Cornell, Sherry Cornell filed a complaint against numerous defendants, including petitioner Stephen Tam, M.D., alleging medical malpractice. Dr. Tam filed an omnibus motion in limine requesting in part that Plaintiff's noneconomic damages be capped pursuant to Nev. Rev. Stat. 41A.035, which limits the recovery of a plaintiff's noneconomic damages in a healthcare provider's professional negligence action to $350,000. The district court denied the motion, concluding (1) section 41A.035 is unconstitutional, as it violates a plaintiff's constitutional right to trial by jury; (2) the statutory cap does not apply to the case as a whole, but a separate cap applies to each plaintiff for each of the defendants; and (3) the statutory cap does not apply to medical malpractice claims. Dr. Tam subsequently petitioned for a writ of mandamus compelling the district court to vacate its order denying his motion in limine. The Supreme Court granted the petition, holding that the district court erred in (1) finding the statute unconstitutional; (2) finding the statutory cap applies per plaintiff and per defendant; and (3) finding the statute only applies to professional negligence and not to medical malpractice. View "Tam v. Eighth Judicial Dist. Court" on Justia Law 2015-10-01 state Nevada Supreme Court of Nevada James W. Hardesty 66346 http://law.justia.com/cases/federal/appellate-courts/ca5/14-20588/14-20588-2015-09-25.html Smith v. Robbins 2015-09-25T15:30:32-08:00 2015-09-25T20:41:24-08:00 W. Steve Smith, trustee of a complex Chapter 7 estate, appealed the bankruptcy court's removal of him as trustee. Smith also appealed his removal from all of his other pending cases. Smith had traveled with his wife and children to New Orleans for an oral argument related to his work as trustee, billing the the firm for work that included estate funds for trip expenses. The district court affirmed. The court concluded that the bankruptcy court applied a proper legal standard, and its determination that Smith's conduct violated that standard was not clearly erroneous. Therefore, the bankruptcy court did not abuse its discretion in finding cause sufficient to remove Smith as trustee. The court rejected Smith's notice argument as well as his as-applied constitutional argument to section 324(b) of the Bankruptcy Code. Finally, the court's ruling moots the issue of whether the bankruptcy and district courts wrongly refused to stay his removal pending appeal. Accordingly, the court affirmed the judgment. View "Smith v. Robbins" on Justia Law 2015-09-25 federal U.S. Court of Appeals for the Fifth Circuit Higginbotham 14-20588 http://law.justia.com/cases/west-virginia/supreme-court/2015/15-0131.html State ex rel. Miles v. W. Va. Bd. of Registered Prof'l Nurses 2015-09-17T11:35:41-08:00 2015-09-17T11:59:17-08:00 Petitioner, who worked as a registered nurse at a Hospital, was terminated for allegedly violating the Hospital's narcotic waste policies. Petitioner self-reported her termination to the West Virginia Board of Registered Professional Nurses. The Board issued a notice of complaint on April 2, 2013. On August 14, 2013, the Board issued an interim status report to the Hospital. A hearing was eventually set for January 20, 2015 but was continued until February 19, 2015. Petitioner filed this petition for a writ of prohibition asserting that the Board's failure to resolve the complaint against her within one year from the date of the status report pursuant to W. Va. Code 30-1-5(c) divested it of jurisdiction to proceed on the complaint. The Supreme Court granted Petitioner's requested relief, holding that the Board exceeded its jurisdiction in this case by failing to comply with the statutory mandates of section 30-1-5(c). View "State ex rel. Miles v. W. Va. Bd. of Registered Prof'l Nurses" on Justia Law 2015-09-17 state West Virginia Supreme Court of Appeals of West Virginia Margaret L. Workman 15-0131 http://law.justia.com/cases/nevada/supreme-court/2015/65460.html Tate v. State Bd. of Med. Exam'rs 2015-09-10T09:30:45-08:00 2015-09-10T13:23:12-08:00 Through the adoption of Nev. Rev. Stat. 630.356(2), the Legislature gave physicians the right to contest and the district courts the power to review final decisions of the Nevada State Board of Medical Examiners. In this case, the Board suspended the license of Appellant, a surgeon licensed in Nevada, for rendering services to a patient while under the influence of alcohol and in an impaired condition. The Board also issued a public reprimand and imposed additional sanctions. Appellant petitioned for judicial review of the Board's decision and requested a preliminary injunction to stay the sanctions and prevent the Board, while judicial review was pending, from filing a report with the National Practitioner Data Bank. The district court denied Appellant's injunction request, concluding that section 630.356(2), which prohibits district courts from entering a stay of the Board's decision pending judicial review, precluded such an action. The Supreme Court reversed, holding that section 630.356(2) impermissibly acts as a legislative encroachment on the district court's power to do what is reasonably necessary to administer justice, and this is a violation of the separation of powers doctrine. View "Tate v. State Bd. of Med. Exam'rs" on Justia Law 2015-09-10 state Nevada Supreme Court of Nevada James W. Hardesty 65460 http://law.justia.com/cases/south-carolina/supreme-court/2015/27572.html Stokes-Craven Holding Corp. v. Robinson 2015-09-09T06:02:30-08:00 2015-09-10T04:30:04-08:00 Stokes-Craven Holding Corporation d/b/a Stokes-Craven Ford ("Stokes-Craven") appealed a circuit court order granting summary judgment in favor of Scott Robinson and his law firm, Johnson, McKenzie & Robinson, L.L.C., (collectively "Respondents") based on the expiration of the three-year statute of limitations. Stokes-Craven argued on appeal the court erred in applying the South Carolina Supreme Court's decision in "Epstein v. Brown," (610 S.E.2d 816 (2005)), and holding that Stokes-Craven knew or should have known that it had a legal malpractice claim against its trial counsel and his law firm on the date of the adverse jury verdict rather than after the Supreme Court affirmed the verdict and issued the remittitur in "Austin v. Stokes-Craven Holding Corp.," (691 S.E.2d 135 (2010)). After review of this matter, the South Carolina Supreme Court overruled "Epstein," reversed the circuit court's order, and remanded the case back to the circuit court for further proceedings. View "Stokes-Craven Holding Corp. v. Robinson" on Justia Law 2015-09-09 state South Carolina South Carolina Supreme Court Donald W. Beatty 27572 http://law.justia.com/cases/mississippi/supreme-court/2015/2014-jp-00005-sct-0.html Mississippi Comm'n on Jud. Perf. v. Walker 2015-09-03T11:02:13-08:00 2015-09-03T15:49:33-08:00 The Mississippi Commission on Judicial Performance (the Commission) filed a "Formal Complaint" against Chancery Court Judge Joe Dale Walker alleging conduct prejudicial to the administration of justice which brings the judicial office into disrepute in violation of Section 177A of the Mississippi Constitution. The Commission recommended that Judge Walker be removed from office following various allegations regarding Judge Walker's mismanagement of a conservatorship. Due to various irregularities occurring in his handling of the conservatorship, the matter was investigated by the Federal Bureau of Investigation as well as the Commission. As a result of that investigation, a grand jury was convened and witnesses called to testify regarding the administration of the conservatorship. In association therewith, Judge Walker entered a guilty plea related to a charge of attempting to corruptly influence a witness subpoenaed to appear before a Federal Grand Jury proceeding and attempting to impede the provision of documents by the witness to the Federal Grand Jury with the intent to influence the outcome of the proceeding. "Due to the seriousness of his admitted criminal acts and judicial misconduct," the Mississippi Supreme Court removed Judge Joe Dale Walker from the office of Chancery Court Judge, Post Two, of the Thirteenth Chancery Court District of Mississippi. View "Mississippi Comm'n on Jud. Perf. v. Walker" on Justia Law 2015-09-03 state Mississippi Supreme Court of Mississippi James W. Kitchens 2014-JP-00005-SCT http://law.justia.com/cases/kansas/supreme-court/2015/108353.html Mashaney v. Bd. of Indigents' Defense Servs. 2015-08-28T07:01:32-08:00 2015-08-29T12:29:13-08:00 After a second mistrial, Appellant was convicted of sex-related crimes. The convictions were affirmed on appeal. Appellant later filed a Kan. Stat. Ann. 60-1507 motion alleging ineffective assistance of both trial counsel and direct appeal counsel. The district court ultimately granted the motion and reversed the conviction. Thereafter, pursuant to a plea agreement, Appellant entered an Alford plea on different charges. In exchange, the State dropped the original charges. Between entering into the plea agreement and sentencing, Appellant filed this legal malpractice action against trial and appellate counsel and the Board of Indigents' Defense Services (BIDS). The district court ruled that BIDS lacked the capacity to be sued, that Appellant's Alford plea foreclosed the relief sought, and that Appellant's claim was time barred. The Court of Appeal agreed with the district court with the exception of the statute of limitations issue, ruling that Appellant's claim was timely filed. The Supreme Court affirmed in part and reversed in part, holding (1) the Court of Appeals correctly found that BIDS is not subject to suit in a legal malpractice action; (2) Defendant may pursue this legal malpractice claim without first demonstrating actual innocence of the charged crimes; and (3) this suit was timely filed under the applicable statute of limitations. View "Mashaney v. Bd. of Indigents' Defense Servs." on Justia Law 2015-08-28 state Kansas Kansas Supreme Court Carol A. Beier 108353 http://law.justia.com/cases/california/court-of-appeal/2015/b255862.html Sternberg v. Cal. State Bd. of Pharmacy 2015-08-26T13:00:23-08:00 2015-08-26T13:49:22-08:00 Plaintiff appealed the trial court's denial of a petition for a writ of administrative mandate, seeking to reverse a decision by the California State Board of Pharmacy subjecting his pharmacist's license to discipline following the discovery of an employee's widespread theft of a dangerous drug from the pharmacy plaintiff supervised as the pharmacist-in-charge. The court concluded that the Board properly interpreted Business and Professions Code section 4081 to hold plaintiff strictly liable for violations leading to licensing discipline. Further, had plaintiff restricted access to the passcode or put in place measures to ensure employees placed orders only through the pharmacy's phone system, he could have averted the employee's theft. The court also concluded that plaintiff failed to properly oversee the operations of the pharmacy and the Board could have concluded that theft would have been averted if he supervised and randomly audited drug deliveries, conducted checks of his staff's work, and actively participated in the inventory and delivery process. Accordingly, the court affirmed the judgment. View "Sternberg v. Cal. State Bd. of Pharmacy" on Justia Law 2015-08-26 state California California Court of Appeal Madeleine Flier B255862 http://law.justia.com/cases/california/court-of-appeal/2015/h040126.html Lattimore v. Dickey 2015-08-21T13:00:22-08:00 2015-08-21T13:16:28-08:00 Lattimore brought a wrongful death action against two doctors and Salinas Valley Memorial Healthcare arising from their care and treatment of Yvonne's father, who had gone to the hospital for a blood transfusion, experienced gastrointestinal bleeding, and died. The trial court granted defendants summary judgment. The court of appeal reversed, finding that the declaration of Lattimore's medical expert was sufficient to raise a triable issue of fact on whether treatment of her father violated the applicable standards of care applicable to physicians and surgeons. However, the medical expert declaration did not raise a triable issue of fact on the standard of care applicable to nurses and hospitals in general. View "Lattimore v. Dickey" on Justia Law 2015-08-21 state California California Court of Appeal Miguel Márquez H040126 http://law.justia.com/cases/idaho/supreme-court-civil/2015/40625.html American Bank v. BRN Dev. 2015-08-20T13:01:10-08:00 2015-08-20T14:59:17-08:00 This case arose out of a failed development project undertaken by BRN Development, Inc. in Coeur d'Alene. The project was for the development of a high-end 325-unit residential and golf course community on the west side of Lake Coeur d'Alene known as "Black Rock North." American Bank was the lender for this project. The Bank ultimately brought a foreclosure action against BRN. BRN brought a cross-claim against Taylor Engineering, Inc., alleging negligence for its role in the development. Taylor recorded a lien against the development. BRN defaulted on the loan, and the Bank named BRN, Taylor, and any other entity claiming an interest in the development. Taylor made a demand on BRN for payment for services rendered. The demand stated that Taylor would "complete the necessary documents" and request the necessary signatures from the local government entities involved in the final PUD approval. Taylor advised BRN that "if the final subdivision approval is not completed and recorded by May 29, 2009, the PUD and preliminary plat approval will expire, the PUD and plat will not vest in the recorded ownership to the real property involved, and the property will revert to its prior zoning and density." This statement was erroneous; it was undisputed that the final plat did not need to be recorded by May 29 in order to vest the PUD. In BRN's cross-claim against Taylor, it alleged professional negligence, negligent and intentional misrepresentation, and failure to disclose based on the erroneous statement Taylor made in its demand letter. The district court separated the claims between Taylor and BRN from the remainder of the American Bank litigation and ultimately held that Taylor was not liable to BRN. BRN appealed. The Supreme Court found no reversible error with the district court's judgment that BRN failed to meet its burden of proving its claims against Taylor, and affirmed that court's judgment. View "American Bank v. BRN Dev." on Justia Law 2015-08-20 state Idaho Idaho Supreme Court - Civil Joel D. Horton 40625 http://law.justia.com/cases/federal/appellate-courts/ca8/14-2380/14-2380-2015-08-04.html Oetting v. Norton 2015-08-04T09:29:21-08:00 2015-08-04T12:52:23-08:00 After the merger of NationsBank and BankAmerica, shareholders filed class actions alleging violations of securities laws. The district court appointed Oetting as lead plaintiff and the Green law firm, as lead counsel. The litigation resulted in a $333 million settlement for the NationsBank class. The Eighth Circuit affirmed approval of the settlement over Oetting's objection. On the recommendation of Green, the court appointed Heffler as claims administrator. A Heffler employee conspired to submit false claims, resulting in fraudulent payment of $5.87 million. The court denied Green leave to file a supplemental complaint against Heffler. Oetting filed a separate action against Heffler that is pending. After distributions, $2.4 million remained. Green moved for distribution cy pres and requested an additional award of $98,114.34 in attorney's fees for post-settlement work. Oetting opposed both, argued that Green should disgorge fees for abandoning the class, and filed a separate class action, alleging malpractice by negligently hiring and failing to supervise Heffler and abandonment of the class. The court granted Green's motion for a cy pres distribution and for a supplemental fee award and denied disgorgement. The Eighth Circuit reversed the cy pres award, ordering additional distribution to the class, and vacated the supplemental fee award as premature. The district court then dismissed the malpractice complaint, concluding that Oetting lacked standing. The Eighth Circuit affirmed that collateral estoppel precluded the rejected disgorgement and class-abandonment claims; pendency of an appeal did not suspend preclusive effects. View "Oetting v. Norton" on Justia Law 2015-08-04 federal U.S. Court of Appeals for the Eighth Circuit James B. Loken 14-2380 http://law.justia.com/cases/south-dakota/supreme-court/2015/27130.html Wells Fargo Bank, N.A. v. Fonder 2015-07-30T05:02:51-08:00 2015-07-30T13:25:37-08:00 Matthew and Caralynn Fonder purchased a home and obtained a mortgage from Wells Fargo Bank, N.A. Wells Fargo selected Wells Fargo Insurance, Inc. Flood Services (WFFS) to conduct a flood hazard determination on the Fonders' home. WFFS determined the home was not in a special flood hazard area, and therefore, the Bank did not require the Fonders to obtain flood insurance. A flood later destroyed the Fonders' home. Wells Fargo later filed a complaint to foreclose on the Fonders' home. The Fonders cross-claimed against WFFS seeking to recover damages sustained a result of their reliance on WFFS's erroneous flood determination. The circuit court dismissed the cross-claim for failure to state a claim and dismissed the Fonders' motion to amend their third-party complaint to assert a claim of negligent misrepresentation on the grounds that WFFS did not owe the Fonders a duty. The Supreme Court affirmed in part and reversed in part, holding (1) the circuit court erred when it dismissed the Fonders' claims for professional negligence and negligent infliction of emotional distress but did not err in dismissing the Fonders' breach-of-fiduciary duty claim; and (2) upon remand, the Fonders may amend their cross-claim to include negligent misrepresentation. View "Wells Fargo Bank, N.A. v. Fonder" on Justia Law 2015-07-29 state South Dakota South Dakota Supreme Court Kern 27130 http://law.justia.com/cases/south-carolina/supreme-court/2015/27553.html Johnson v. Alexander 2015-07-29T18:59:04-08:00 2015-07-30T11:22:59-08:00 Amber Johnson filed suit against her closing attorney, Stanley Alexander, arguing he breached his duty of care by failing to discover the house Johnson purchased had been sold at a tax sale the previous year. The trial court granted partial summary judgment in favor of Johnson as to Alexander's liability. On appeal, the court of appeals held Alexander could not be held liable as a matter of law simply because the attorney he hired to perform the title work may have been negligent. Instead, the court determined the relevant inquiry was "whether Alexander acted with reasonable care in relying on [another attorney's] title search"; accordingly, it reversed and remanded. The Supreme Court reversed the court of appeals: even absent Alexander's admissions, the Court found it was error to equate delegation of a task with delegation of liability. The Court therefore agreed with Johnson that an attorney was liable for negligence in tasks he delegates absent some express limitation of his representation. Applying this standard to the facts, the Court found the grant of summary judgment was proper because there was no genuine issue of material fact as to liability. The case was remanded back to the trial court for a determination of damages. View "Johnson v. Alexander" on Justia Law 2015-07-29 state South Carolina South Carolina Supreme Court Kaye Gorenflo Hearn 27553 http://law.justia.com/cases/federal/appellate-courts/ca8/14-2943/14-2943-2015-07-29.html Taylor v. Cottrell, Inc. 2015-07-29T07:31:05-08:00 2015-07-29T07:57:00-08:00 Taylor was injured while attempting to secure a vehicle on a Cottrell car-hauling trailer. Dr. Odor operated on Taylor to complete a two-level cervical fusion. More than two years later, Taylor was again injured when he fell approximately 10 feet from a Cottrell trailer. He was taken to the emergency room and was discharged home with pain medication. The same month, Taylor reported to Dr. Odor with neck and back pain. After testing, Dr. Odor observed several disc protrusions and a disc desiccation. These injuries led to another complex spinal surgery with Dr. Odor, the cost of which exceeded $450,000. Two weeks before trial Cottrell claimed it had uncovered copies of agreements between Taylor's counsel and Dr. Odor which evidenced an impermissible contingent-fee agreement. The court found there was a contingency agreement and excluded Odor's testimony as an expert witness, dismissed claims for Taylor's neck and back injuries, and stayed claims related to shoulder injuries. The Eighth Circuit reversed; the district court failed to articulate the precise interest Odor had in the outcome of the litigation and failed to explain why any such interest overcomes the general rule that Odor's bias and credibility should be resolved by the jury. View "Taylor v. Cottrell, Inc." on Justia Law 2015-07-29 federal U.S. Court of Appeals for the Eighth Circuit Kermit Edward Bye 14-2943 http://law.justia.com/cases/california/court-of-appeal/2015/b255827.html Klotz v. Milbank,Tweed, Hadley & McCloy 2015-07-28T12:00:22-08:00 2015-07-28T14:17:25-08:00 Plaintiffs filed suit alleging claims for breach of fiduciary duty, conspiracy, and legal malpractice, and defendants moved to strike the entire complaint as to the individual plaintiffs Klotz and Spitz because defendants had no independent legal duty to plaintiffs nor did they act for their personal financial gain. Plaintiffs alleged that a former business associate of theirs, Stephen Bruce, who was a client of defendants, conspired with defendants to unlawfully withdraw from plaintiff SageMill and to usurp a nascent business opportunity of SageMill. The trial court denied the motion. The court reversed the trial court's order on plaintiffs' second cause of action for conspiracy as to the individual plaintiffs Klotz and Spitz, finding that any advice defendants gave Bruce arose from an attempt to contest or compromise a claim or dispute, and thus was within the ambit of section 1714.10. The court affirmed as to the remaining claims. View "Klotz v. Milbank,Tweed, Hadley & McCloy" on Justia Law 2015-07-28 state California California Court of Appeal Johnson B255827 http://law.justia.com/cases/california/court-of-appeal/2015/h040098.html Moncrief v. Clark 2015-07-21T11:00:20-08:00 2015-07-21T14:01:28-08:00 Smith, a California partnership, hired attorney Moncrief to perform due diligence for its purchase of equipment from Texas Hill in Arizona. Texas Hill was represented by Clark, an Arizona attorney. Moncrief performed a UCC search, called Clark, and left a voicemail. Clark called Moncrief in response and represented that Texas Hill was the sole owner of the equipment. Afterwards Clark sent Moncrief an e-mail, stating: "I have been the attorney for Texas Hill . . . and can state unequivocally that the cooling equipment you are buying is free and clear and is owned by Texas Hill." Based on Clark's representations, Moncrief advised Smith to go forward with the purchase. Smith later learned that Texas Hill did not own the equipment when they completed the transaction; New York Community Bank had acquired an interest in the equipment. Smith sued Moncrief for legal malpractice. Moncrief cross-complained against Clark. Clark moved to quash service, arguing that California lacked personal jurisdiction over him. The court granted the motion. Clark's conduct and his intentional misrepresentations were required to close the sale. Clark personally availed himself of the benefits of California when he reached into California to induce Moncrief's client to complete the purchase. Moncrief's claims arise out of Clark's contacts with California. lark has not demonstrated that exercise of jurisdiction would be unreasonable. View "Moncrief v. Clark" on Justia Law 2015-07-21 state California California Court of Appeal Conrad L. Rushing H040098 http://law.justia.com/cases/missouri/supreme-court/2015/sc94120.html Stewart v. Partamian 2015-07-21T10:01:51-08:00 2015-07-21T11:40:57-08:00 Respondent filed a medical negligence lawsuit alleging that Appellants negligently failed to timely drain Respondent's prostate abscess, causing the abscess to rupture. After a trial, the jury returned a verdict in Respondent's favor. The Supreme Court affirmed, holding (1) Appellants did not preserve for review their argument that the trial court erred in admitting into evidence certain videotaped deposition testimony; (2) the trial court did not err in failing to find that the verdict was excessive due to jury passion and prejudice or because it exceeded fair and reasonable compensation for Respondent's injuries; and (3) the Court will not address Appellants' constitutional challenge to Mo. Rev. Stat. 538.300, which prohibits defendants in medical negligence cases from seeking remittitur, because the statutory prohibition in section 538.300 was not implicated in this case. View "Stewart v. Partamian" on Justia Law 2015-07-21 state Missouri Supreme Court of Missouri Richard B. Teitelman SC94120 http://law.justia.com/cases/alaska/supreme-court/2015/s-15045.html Foondle v. O'Brien 2015-07-20T10:59:45-08:00 2015-07-20T17:38:52-08:00 Appellant William Foondle appeals the superior court's dismissal of his claims for legal malpractice against the public defenders who represented him in a criminal case. A grand jury indicted William Foondle for felony driving under the influence (DUI) in 2007. The DUI charge was a felony because Foondle had been convicted of DUI twice in the preceding ten years: once earlier in 2007 and once in North Dakota in 1999. Assistant public defenders Angela O'Brien and Daniel Lord were assigned to defend Foondle. In dismissing Foondle's malpractice claims, the superior court relied on the public policy principle that precluded criminally convicted plaintiffs from civil recovery based on the alleged negligence of their former defense counsel. Upon review, the Supreme Court held that the superior court's legal analysis was correct, and affirmed the judgment on that basis. Furthermore, the Court rejected, as unsupported, Foondle's argument that the dismissal violated his rights to due process and access to the courts. View "Foondle v. O'Brien" on Justia Law 2015-04-03 state Alaska Alaska Supreme Court Peter J. Maassen S-15045 http://law.justia.com/cases/federal/appellate-courts/ca8/14-2935/14-2935-2015-07-17.html United States v. Bloodman 2015-07-17T07:01:21-08:00 2015-07-17T15:29:29-08:00 When Bloodman withdrew as Haynes's attorney in a criminal case, the judge ordered her to return discovery material "as soon as possible" and emailed the order, instructing her "to turn over to the United States Attorney's Office any and all discovery material previously provided her by the Government." After 20 days, she had not returned the material. The judge issued an order to return it within a week, or risk a show-cause order and sanctions. Bloodman, no longer on the electronic filing system, did not receive the email; the clerk mailed her a hard copy. She still had not returned the material 11 days later. The judge emailed her a show-cause order. Bloodman sent the material the next day via overnight mail, though delivery was delayed due to weather. At the show-cause hearing, Bloodman apologized. She claimed not to receive the second order, the only one to set an exact date and to have had medical issues. The judge did not find bad faith or hold her in contempt, but ordered her to pay $250 for the government's "time and effort and energy." The Eighth Circuit dismissed an appeal for lack of jurisdiction because Haynes's criminal case is still pending. View "United States v. Bloodman" on Justia Law 2015-07-17 federal U.S. Court of Appeals for the Eighth Circuit William Duane Benton 14-2935 http://law.justia.com/cases/idaho/supreme-court-civil/2015/41742.html Colafranceschi v. Briley 2015-07-16T10:01:00-08:00 2015-07-17T04:14:36-08:00 Mark Colafranceschi brought this action for defamation and professional malpractice against Shawn Briley and Ashley Robinson after a magistrate court appointed Robinson to perform child custody evaluations in two separate cases in which Colafranceschi was a party. Colafranceschi was the plaintiff in two actions against the mothers of his children. Robinson was a licensed masters social worker. Briley was a licensed clinical social worker and was Robinson's supervisor. In both reports in the two cases, Robinson's evaluations (as Colafranceschi's claim suggested) "did not cast him in a positive light." The district court dismissed the action, finding that quasi-judicial immunity barred Colafranceschi's claims. Finding no reversible error, the Supreme Court affirmed. View "Colafranceschi v. Briley" on Justia Law 2015-07-16 state Idaho Idaho Supreme Court - Civil Joel D. Horton 41742 http://law.justia.com/cases/south-dakota/supreme-court/2015/27149.html Johnson v. Hayman & Assocs., Inc. 2015-07-16T05:02:44-08:00 2015-07-16T08:19:28-08:00 After Fannie Mae foreclosed upon and acquired the home at issue in this case, Fannie Mae hired Hayman Residential Engineering Services, Inc. to prepare a structural engineering report on the home. Based on the report, Fannie Mae made some of the recommended repairs. Fannie Mae subsequently sold the home to buyers, who then sold the home to Roger and Dorothy Johnson. Thereafter, the Johnsons discovered that the estimated cost of making all necessary repairs to the home exceeded its value. The Johnsons filed a professional negligence claim against Hayman. The circuit court granted summary judgment in favor of Hayman, concluding that Hayman did not owe the Johnsons a duty. The Supreme Court affirmed, holding that Hayman did not owe a professional duty to the Johnsons because they did not suffer a foreseeable harm stemming from Hayman's alleged negligence, and therefore, a professional negligence claim could not be established. View "Johnson v. Hayman & Assocs., Inc." on Justia Law 2015-07-15 state South Dakota South Dakota Supreme Court Lori S. Wilbur 27149 http://law.justia.com/cases/south-carolina/supreme-court/2015/27547.html Skipper v. ACE Property 2015-07-15T06:03:16-08:00 2015-07-15T08:36:49-08:00 Georgia citizen George Skipper was involved in a motor vehicle accident with a logging truck that was driven by Harold Moors and owned by Specialty Logging, LLC. Specialty had a commercial automobile insurance policy with a $1,000,000 per occurrence limit, which was issued by ACE Property and Casualty Insurance Company (ACE). Following the accident, Skipper retained an attorney who wrote a demand letter to ACE offering to settle the case for the limits of the Policy. ACE retained two lawyers from Atlanta, Brantley Rowlen and Erin Coia, to represent Specialty and Moors. Specialty and Moors offered Skipper $50,000. Not satisfied with that offer, Skipper and his wife filed a lawsuit in the Allendale County Court of Common Pleas against Specialty and Moors. Unbeknownst to ACE or its attorneys, the Skippers entered into a settlement with Specialty and Moors, agreeing to execute a Confession of Judgment for $4,500,000, in which they admitted liability for the Skippers' injuries and losses. The Specialty Parties also agreed to pursue a legal malpractice claim against ACE and its attorneys Rowlen and Coia, and assigned the predominant interest in that claim to the Skippers.1 In exchange for the Specialty Parties' admission of liability, the Skippers agreed not to execute the judgment as long as the Specialty Parties cooperated in the legal malpractice litigation against Defendants. Armed with the assignment, the Skippers and Specialty Parties filed a legal malpractice action against the attorneys, also with the Allendale County court. The case was removed to the United States District Court for the District of South Carolina. In federal court, ACE and its attorneys argued that the assignment of the malpractice claim was invalid and that the Skippers had no valid claims to assert. Because the question of whether a legal malpractice claim could be assigned between adversaries in litigation in which the alleged malpractice arose was a novel question in South Carolina, the South Carolina Supreme Court accepted a certified question South Carolina law from the federal district court. After review, the South Carolina Court held that in South Carolina, the assignment of a legal malpractice claim between adversaries in litigation in which the alleged malpractice arose was prohibited. View "Skipper v. ACE Property" on Justia Law 2015-07-15 state South Carolina South Carolina Supreme Court John W. Kittredge 27547 http://law.justia.com/cases/maine/supreme-court/2015/2015-me-84.html Allen v. McCann 2015-07-14T07:01:57-08:00 2015-07-14T13:39:54-08:00 Plaintiff was injured while working at a paper mill. Plaintiff hired Defendant, an attorney, to represent her in her workers' compensation claim. The Workers' Compensation Board awarded Plaintiff, still represented by Defendant, partial incapacity benefits. Plaintiff later settled with her employer. Plaintiff subsequently filed a complaint against Defendant, alleging that, due to Defendant's failure to exercise due care and negligence, she was awarded partial incapacity benefits rather than total incapacity benefits. The superior court granted summary judgment in favor of Defendant. The Supreme Judicial Court affirmed, holding that summary judgment was correctly granted where the jury could not assess damages without resorting to speculation. View "Allen v. McCann" on Justia Law 2015-07-14 state Maine Maine Supreme Judicial Court Andrew M. Mead 2015 ME 84 http://law.justia.com/cases/california/court-of-appeal/2015/g048375.html Martinez v. Dept. of Transportation 2015-07-07T16:00:24-08:00 2015-07-08T15:25:29-08:00 "This is a case of egregious attorney misconduct." Because of the cumulative effect of the attorney's misconduct, the Court of Appeal felt compelled to reverse the judgment she obtained on behalf of her client, Caltrans. "While Judge Di Cesare showed the patience of Job – usually a virtue in a judge – that patience here had the effect of favoring one side over the other. He allowed [the attorney] to emphasize irrelevant and inflammatory points concerning the plaintiff's character so often that he effectively gave CalTrans an unfair advantage." View "Martinez v. Dept. of Transportation" on Justia Law 2015-07-07 state California California Court of Appeal William W. Bedsworth G048375 http://law.justia.com/cases/federal/appellate-courts/ca7/14-3632/14-3632-2015-07-07.html Peterson v. Katten Muchin Rosenman LLP 2015-07-07T14:00:44-08:00 2015-07-07T14:12:42-08:00 Bell established mutual funds, raised $2.5 billion, and invested in vehicles managed by Petters, who said that he was financing Costco's electronics inventory. Instead he was running a Ponzi scheme, which collapsed in 2008. The scheme involved a claim that money lent to Petters entities was secured by Costco's inventory and that repayment was ensured by a "lockbox" arrangement under which Costco would make payments into accounts that the Funds (not Petters) controlled. Petters insisted that the Funds not contact Costco, to avoid upsetting his favorable business relations. Bell and Petters went to prison for fraud. The Funds' trustee in bankruptcy filed multiple suits. The district court dismissed a claim of legal malpractice. The Seventh Circuit reversed. Even if Bell was determined to do business with Petters, the Fund's lawyers ould have explained how to structure the transactions in a less risky way, and if Petters refused to cooperate then Bell might have reconsidered lending the Funds' money. The Trustee alleges that the firm did not offer any advice about how relative risks correspond to different legal devices, and its complaint states a legally recognized claim. Whether the law firm has a defense, and whether any neglect on its part caused injury, are subjects for the district court. View "Peterson v. Katten Muchin Rosenman LLP" on Justia Law 2015-07-07 federal U.S. Court of Appeals for the Seventh Circuit Frank Hoover Easterbrook 14-3632 http://law.justia.com/cases/federal/appellate-courts/ca7/15-1097/15-1097-2015-07-07.html Moje v. Federal Hockey League LLC 2015-07-07T10:30:42-08:00 2015-07-07T10:46:43-08:00 Moje, playing minor league hockey, lost an eye during a game, and sued Oakley, which made his visor, and the League. Instead of notifying its insurer, the League hired LoFaro. Oakley's attorney called the League's President, to ask why it had not answered the complaint. LoFaro claimed that an answer had been filed, but the docket did not reflect any filing. Moje moved for default. LoFaro did not respond, nor did he respond after the court entered the default and permitted Moje to prove damages. The court entered a final judgment of $800,000 against the League. After the League learned of collection efforts, it notified its insurer. A lawyer hired by the insurer unsuccessfully moved, under Fed. R. Civ. P. 60(b)(1) to set aside the judgment within six months of its entry. Rule 60(b)(1), allows relief on account of "mistake, inadvertence, surprise, or excusable neglect." The Seventh Circuit affirmed. Abandoned clients who take reasonable steps to protect themselves can expect to have judgments reopened under Rule 60(b)(1), but the League is not in that category. Its remedy is against LoFaro. View "Moje v. Federal Hockey League LLC" on Justia Law 2015-07-07 federal U.S. Court of Appeals for the Seventh Circuit Frank Hoover Easterbrook 15-1097 http://law.justia.com/cases/federal/appellate-courts/ca7/14-3294/14-3294-2015-07-07.html Choice Hotels Int'l Inc. v. Grover 2015-07-07T10:30:41-08:00 2015-07-07T11:02:34-08:00 Choice Hotels sued SBQI, its managers, and investors, for breach of a franchise agreement. The defendants did not answer the complaint. The court entered a default. One defendant, Chawla, an Illinois attorney, had represented the others. Other defendants asked Chawla to find a new attorney. They claimed that they had been unaware that their signatures were on the franchise agreement and that the signatures are forgeries. Johnson agreed to try to vacate the default, negotiate a settlement, and defend against the demand for damages. Johnson filed an appearance and took some steps, but did not answer the complaint or move to vacate the default, engage in discovery concerning damages, or reply to a summary judgment motion on damages. In emails, Johnson insisted that he was trying to settle the litigation. He did not return phone calls. The court set damages at $430,286.75 and entered final judgment. A new attorney moved to set aside the judgment more than a year after its entry, under Fed. R. Civ. P. 60(b)(6), which covers "any other reason that justifies relief" and requires "extraordinary circumstances." The Seventh Circuit affirmed. The defendants must bear the consequences of their inaction. They were able to monitor the proceedings, but did not follow through. View "Choice Hotels Int'l Inc. v. Grover" on Justia Law 2015-07-07 federal U.S. Court of Appeals for the Seventh Circuit Frank Hoover Easterbrook 14-3294 http://law.justia.com/cases/louisiana/supreme-court/2015/2014-c-2483.html Lomont v. Myer-Bennett 2015-06-30T14:02:26-08:00 2015-06-30T16:51:53-08:00 This was a legal malpractice case. Defendant Michelle Myer-Bennett filed a peremptory exception of peremption asserting plaintiff Tracy Lomont filed her malpractice claim beyond the three-year peremptive period set forth in La. R.S. 9:5605. Lomont opposed the exception, arguing the peremptive period should not have applied because Myer-Bennett engaged in fraudulent behavior which prevented application of the peremptive period. Lomont hired Myer-Bennett to represent her in a divorce and related domestic matters, which included partitioning the community property. Citibank obtained a default judgment against John Lomont (the ex-husband) on a delinquent account. Citibank recorded the judgment in the mortgage records in Jefferson Parish as a lien against the home. Lomont attempted to refinance the mortgage on the home and learned from the bank that the settlement agreement, giving her full ownership of the home, was never recorded in the mortgage and conveyance records. Lomont contacted Myer-Bennett to advise her of the problem. According to Myer-Bennett, because it was her standard practice to record such documents, she initially believed Lomont was given inaccurate information by the bank. Upon investigation, Myer-Bennett discovered that she had not recorded the agreement. Myer-Bennett recorded the agreement the next day, September 30, 2010. In December 2010, Lomont was notified that her application to refinance the loan was denied because of Citibank's lien on the property. According to Myer-Bennett, once she became aware of the Citibank lien she discussed with Lomont the fact she committed malpractice and gave Lomont several options to proceed, including hiring another lawyer to sue her, or allowing Myer-Bennett to file suit against John Lomont and/or Citibank to have the lien removed. Myer-Bennett stated. Lomont chose not to pursue a malpractice action, but wanted defendant to fix the problem. Lomont denied Myer-Bennett ever notified her she had committed malpractice. Lomont contended Myer-Bennett never mentioned malpractice in December 2010, but simply advised she would have the Citibank lien removed from the property by filing lawsuits against John Lomont and Citibank. The district court sustained the exception of peremption and the court of appeal affirmed. Based on the facts of this case, the Supreme Court found defendant committed fraud within the meaning of La. R.S. 9:5605(E). Thus, the peremptive periods contained in La. R.S. 9:5605 were not applicable and plaintiff's legal malpractice claim was governed by the one-year prescriptive period in La. C.C. art. 3492. Further, the facts of this case supported an application of the doctrine of contra non valentem. Because the Court found plaintiff filed suit within one year of discovering defendant's malpractice, the Court held the lower courts erred in sustaining defendant's exception of peremption. View "Lomont v. Myer-Bennett" on Justia Law 2015-06-30 state Louisiana Louisiana Supreme Court Bernette J. Johnson 2014-C-2483 http://law.justia.com/cases/federal/appellate-courts/ca10/14-1423/14-1423-2015-06-30.html Farmer v. Banco Popular 2015-06-30T11:03:07-08:00 2015-06-30T15:53:17-08:00 Pro se plaintiff George Farmer, a resident of Colorado and a licensed attorney, sued defendant Banco Popular under federal and state law to challenge Banco's demand that he pay off the full amount owed under a $150,000 Home Equity Line of Credit (HELOC) his deceased father obtained in 2001. In 2012, the parties informed the district court they had reached a settlement: Banco was to pay Farmer $30,000 and forgive some principal, unpaid interest, and attorney's fees. Farmer would pay $137,380.94 in satisfaction of the HELOC, due later that year. Farmer "began to negotiate a number of the . . . terms of the draft agreement." Banco "sent Farmer the completed settlement agreement, but Farmer sought changes to the exhibits." These exhibits included a deed in lieu of foreclosure and a satisfaction of mortgage. After Farmer received the revised exhibits he still would not sign the settlement agreement, but "again sought more changes, including the amount, timing, and structure of the payment." Banco ultimately filed a motion to enforce the settlement agreement. Notwithstanding his prior representations to the court, Farmer sought to reduce his net payment of $107,380.34 under the terms of the agreement to $100,000, but pay it by October 1 rather than by October 15. The court held another hearing on September 10 at which Farmer again told the court the settlement was fine: "'[W]e are all in agreement to enforce the settlement,' and 'the only thing that remains is the date that my payment is due.'" The parties then agreed that Banco would not pay Farmer $30,000 as previously agreed, but instead, Farmer would pay Banco $107,380.34 by November 15, 2012. "Banco Popular sent Farmer an agreement reflecting the new amount and due date, but instead of signing, Farmer asked for changes and additions. Banco Popular refused most of those changes and asked Farmer to sign the revised agreement, which he never did." A prior Tenth Circuit decision recited, in detail, Farmer's ongoing conduct that led the district judge to "warn that he would impose the most severe sanctions and penalties if the parties did not comply with his order" enforcing the settlement. "Now here we are again:" Farmer appealed the district court order imposing fees and costs on him as a punitive sanction. The Tenth Circuit affirmed the district court's order, as modified: sanctions imposed on Farmer in the form of fees and costs due and payable to Banco totaled $50,824.53; Farmer was admonished that further prolongation of this appeal absent good cause would result in the Court imposing its own monetary sanctions on him pursuant to Fed. R. App. P. 38. The Clerk of Court was directed to initiate a formal attorney disciplinary proceeding for the Court to consider further whether additional discipline is appropriate. View "Farmer v. Banco Popular" on Justia Law 2015-06-30 federal U.S. Court of Appeals for the Tenth Circuit Baldock 14-1423 http://law.justia.com/cases/idaho/supreme-court-civil/2015/41972.html Pines v. Idaho Board of Medicine 2015-06-22T13:07:00-08:00 2015-06-23T19:40:09-08:00 Richard Pines, D.O. appealed the district court's decision on a disciplinary order of the Idaho Board of Medicine. The Board brought disciplinary proceedings against Pines following reports that he had induced young men into sexual contact by saying he was required to give full-body massages to naked practice patients in order to be relicensed as a doctor of osteopathy. Following a hearing, the Board found Pines committed four counts of professional misconduct. It revoked Pines' license and ordered that he pay costs and attorney fees. The district court affirmed the four counts of misconduct but vacated the award of costs and attorney fees. Pines appealed and the Board cross-appealed. Before the Supreme Court, Pines argued: (1) that he was disciplined for uncharged conduct, resulting in a violation of his due process rights; (2) that evidence in the record was insufficient to support certain alleged violations made against him; (3) that as applied, his due process rights were violated by the Board's conclusion that four individuals were Pines' patients. The Board argued that the district court erred in vacating the Board's order on attorney fees and costs. Upon review of the record, the Supreme Court found that two of the "patients" were not, indeed, Pines' patients, and that Pines' due process rights were not violated. The Court affirmed the Board's decision on Counts I and II, but vacated the district court's decision on Counts III and V (which pertained to the two "patients"). The case was remanded for further proceedings, including additional consideration of the issue of costs and fees. View "Pines v. Idaho Board of Medicine" on Justia Law 2015-06-22 state Idaho Idaho Supreme Court - Civil Jim Jones 41972 http://law.justia.com/cases/mississippi/supreme-court/2015/2014-jp-01184-sct.html Miss. Comm'n on Judicial Perf. v. Littlejohn 2015-06-18T11:02:43-08:00 2015-06-18T14:24:01-08:00 The Mississippi Commission on Judicial Performance determined that Chancellor Talmadge Littlejohn has violated multiple Canons of Judicial Conduct. In March 2012, Chancellor Littlejohn modified a 2001 Agreed Order of Filiation and Support between Ronald Brooks and Janice Fields, and ordered Brooks to pay Fields $15,000 for an automobile for their child within ninety days, and $1,750 in attorney fees within sixty days. Brooks posted a supersedeas bond, which the chancery clerk approved, and appealed Chancellor Littlejohn's order to this Court. Because he had posted the supersedeas bond, Brooks did not pay the sums ordered while the appeal was pending. Nevertheless, Fields filed a contempt complaint against Brooks. Chancellor Littlejohn acknowledged that Brooks had posted a supersedeas bond but nevertheless held him in contempt for his failure to pay and ordered him incarcerated until he paid the entire amount of $16,750. Brooks spent three days and two nights in jail. During his incarceration, he filed an emergency appeal with the Supreme Court, and the Court vacated the contempt finding and ordered Brooks released. The Commission filed its complaint against Chancellor Littlejohn, alleging violations of Canons 1, 2A, 3B(2), and 3B(8) of the Code of Judicial Conduct. After a formal hearing, the Commission concluded that Chancellor Littlejohn had committed misconduct, and it recommended that the Supreme Court impose a $500 fine and a public reprimand, and assess costs associated with this proceeding. While the Supreme Court agreed with the Commission that Chancellor Littlejohn committed misconduct, it did not adopt the recommended sanctions. The Court found that Chancellor Littlejohn refused to take responsibility for his misconduct, and the recommended sanctions were not commensurate with sanctions imposed for similar misconduct in past cases. The Court suspended Chancellor Littlejohn from office for thirty days without pay, fined him $1,000, order that he be publicly reprimanded, and taxed him with the costs of these proceedings. View "Miss. Comm'n on Judicial Perf. v. Littlejohn" on Justia Law 2015-06-18 state Mississippi Supreme Court of Mississippi Jess H. Dickinson 2014-JP-01184-SCT http://law.justia.com/cases/federal/appellate-courts/ca5/14-50910/14-50910-2015-06-15.html Zente v. Credit Mgmt. 2015-06-15T15:30:32-08:00 2015-06-15T21:18:24-08:00 This case arose from Credit Management's debt-collection phone calls to plaintiff. On appeal, plaintiff's attorney challenged the district court's referral of his conduct to the disciplinary committee. Credit Management filed a motion to dismiss by requesting sanctions against the attorney under Rule 11, claiming that the attorney knew that the allegations in the complaint were false and frivolous. The district court denied the request for Rule 11 sanctions, holding that sanctions were unavailable because the attorney filed the motion to dismiss first, and thus obviously within twenty-one days of knowing that Credit Management was seeking Rule 11 sanctions. The district court, however, referred the allegation to the Admissions Committee for further review. The court concluded that neither plaintiff nor his attorney has standing to appeal that referral, which was not accompanied by any finding of misconduct. Accordingly, the court dismissed the appeal. View "Zente v. Credit Mgmt." on Justia Law 2015-06-15 federal U.S. Court of Appeals for the Fifth Circuit James Earl Graves, Jr. 14-50910 http://law.justia.com/cases/federal/appellate-courts/ca8/12-3919/12-3919-2015-06-15.html Cedar Rapids Lodge & Suites, LLC v. Lightowler Johnson Assocs., Inc. 2015-06-15T07:01:43-08:00 2015-06-15T09:48:11-08:00 In 2003, the governors of Cedar Rapids Lodge obtained the rights to build an AmericInn franchise. The company used Lightowler as the project architect. Lightowler used a standard form agreement that specified that its terms would be governed by the law of North Dakota. After changes requested by the Fire Marshal and for compliance with franchise standards, Lightowler submitted revised plans in February, 2004. Construction began in January 2004. In July, 2004, Lidberg of AmericInn led a construction site visit attended by the governors, and Olson, a Lightowler engineer. Lidberg and Olson prepared reports detailing deficiencies. The last act performed by Lightowler on the project was a response to the contractor in September, 2004. Lidberg led a second site visit in October, 2004, produced a report identifying additional deficiencies, and sent it to Siebert and Lightowler. The hotel opened for business in December, 2004, but problems continued. In December, 2009 Cedar Rapids Lodge brought claims against its former governors and others involved in the hotel project and alleging professional negligence by Lightowler. The Eighth Circuit affirmed summary judgment in favor of Lightowler, concluding that the claim was barred by the statute of limitations under either North Dakota or Iowa law. View "Cedar Rapids Lodge & Suites, LLC v. Lightowler Johnson Assocs., Inc." on Justia Law 2015-06-15 federal U.S. Court of Appeals for the Eighth Circuit Steven M. Colloton 12-3919 http://law.justia.com/cases/vermont/supreme-court/2015/2014-194.html Glassford v. Dufresne & Associates, P.C. 2015-06-12T04:03:59-08:00 2015-06-12T06:27:40-08:00 Plaintiffs Heidi and James Glassford appealed a superior court decision denying their motion for summary judgment and granting it to defendant Dufresne & Associates, P.C. on plaintiffs' claims of negligent misrepresentation and violation of the Vermont Consumer Protection Act (CPA). Plaintiffs were homeowners who purchased their home direct from the builder, D&L Homes by Design, LLC (D&L). D&L hired defendant to certify that the on-site mound sewage disposal system constructed for the home satisfied state permitting requirements. On April 19, 2005, the Vermont Agency of Natural Resources issued a Wastewater System and Potable Water Supply Permit for construction of the sewage disposal system on the property, subject to receiving a certification pursuant to 10 V.S.A 1973(e). On October 20, 2005, defendant's employee sent the certification required by the statute. On December 20, 2005, plaintiffs signed a purchase-and-sale agreement to purchase the home from D&L. Although the seller represented that the home and property had received all the necessary permits, plaintiffs never saw the certificate or the letter from the Agency stating that the certification requirement was satisfied. Sometime thereafter, plaintiffs hired an attorney in connection with the closing. On January 13, just prior, plaintiffs' attorney prepared a certificate of title that noted the wastewater and water supply permit. In February 2006, the sewage disposal system failed. In November 2008, plaintiffs hired defendant to investigate the system's failure because they knew defendant had inspected the system prior to their purchase. Defendant prepared a report stating that he had "completed the original" inspection in 2005 and found the system had been installed according to the permitted design. Plaintiffs received other opinions about the disposal system's failure both before and after hiring defendant to inspect the system. Plaintiffs filed a complaint in superior court alleging pecuniary losses from defendant's failure to properly inspect the sewage disposal system and subsequent misrepresentation about the construction of the system in the certification to the Agency. Upon review of the superior court decision, the Supreme Court found that the completion and filing of defendant's certificate was a prerequisite to D&L's ability to sell the home, the certificate was unrelated to the sale. The law required that it be sent only to the government agency that issued the permit. Furthermore, there was no allegation that D&L used the certificate as part of its sales pitch, and no allegation that defendant had any part in the sales. The standard for CPA liability required that a person be directly involved in the transaction that gave rise to the claimed liability. That standard was not met here. Accordingly, the Court affirmed the superior court's decision. View "Glassford v. Dufresne & Associates, P.C." on Justia Law 2015-06-12 state Vermont Vermont Supreme Court John A. Dooley 2014-194 http://law.justia.com/cases/virginia/supreme-court/2015/141239.html Desetti v. Chester 2015-06-04T06:03:33-08:00 2015-06-04T19:08:46-08:00 Plaintiff retained Defendant to represent her in a criminal matter. After a trial, Plaintiff was found guilty of felony assault and battery. Plaintiff subsequently filed a petition for writ of habeas corpus alleging that she was deprived of her constitutional right to effective assistance of counsel. The habeas court granted the petition and vacated Plaintiff's conviction, concluding that Defendant's representation was constitutionally deficient. Plaintiff subsequently pled guilty to misdemeanor assault and battery. Thereafter, Plaintiff filed a legal malpractice claim against Defendant alleging that Defendant's actions during the original criminal matter constituted malpractice. The circuit court sustained Defendant's demurrer to the complaint, concluding that Plaintiff failed to state a claim because she was not actually innocent of the criminal act of assault that gave rise to the criminal matter in which the alleged malpractice occurred. The Supreme Court affirmed, holding that Plaintiff failed to satisfy her burden of pleading that the pecuniary injury she sought to recover was proximately caused by Defendant's legal malpractice, rather than being proximately caused by her criminal actions. View "Desetti v. Chester" on Justia Law 2015-06-04 state Virginia Supreme Court of Virginia LeRoy F. Millette, Jr. 141239 http://law.justia.com/cases/california/court-of-appeal/2015/b253860.html Sela v. Medical Board of Cal. 2015-05-28T15:00:19-08:00 2015-05-28T20:48:02-08:00 Petitioner appealed the denial of his petition for writ of mandate, seeking to set aside the Board's decision rejecting petitioner's request for early termination of the probationary restrictions on his medical license. The Board revoked petitioner's medical license, finding that he had engaged in sexual abuse and sexual misconduct during gynecological pelvic examinations. The court concluded that because the Board decision operated to restrict petitioner's medical license, Bus. & Prof. Code 2337 applies to and controls the method of appellate review of the trial court's ruling upholding the Board's decision. Therefore, the trial court's judgment denying petitioner's petition for writ of mandate is not appealable. The court declined to exercise its discretion to treat petitioner's unauthorized appeal as a petition for an extraordinary writ. Accordingly, the court dismissed the appeal. View "Sela v. Medical Board of Cal." on Justia Law 2015-05-28 state California California Court of Appeal Richard M. Mosk B253860 http://law.justia.com/cases/north-dakota/supreme-court/2015/20140274.html Johnson v. Mid Dakota Clinic, P.C. 2015-05-27T15:02:44-08:00 2015-05-28T20:02:53-08:00 Joan Johnson, as personal representative of the Estate of Herman B. Johnson, and Marguerite Johnson, Herman Johnson's widow, appealed a district court's grant of summary judgment dismissing their action against Mid Dakota Clinic. On the morning of December 18, 2012, Herman Johnson experienced confusion and swelling of his legs and calves. That morning, Joan Johnson, Herman Johnson's daughter and attorney-in-fact, called the Veteran's Administration Clinic to schedule an appointment for Herman, but the VA Clinic did not return her call. As a result, Joan Johnson called Mid Dakota to schedule an appointment. Although she had requested a specific doctor, she was advised she would not be able to see him that day and was given an appointment with Donald Grenz, M.D. later that afternoon. Upon arriving at Mid Dakota Clinic at Gateway Mall, Joan and Herman Johnson checked in with the receptionist approximately seven minutes late for the appointment. Because they were more than five minutes late, they were told Dr. Grenz would not see them but they could reschedule with Dr. Grenz for another day or go to the emergency room or the "Today Clinic," a walk-in clinic within Mid Dakota's main clinic downtown. Joan and Herman Johnson subsequently left the clinic to seek alternative care. Upon entering the east vestibule of the Gateway Mall, Joan Johnson decided to seek the assistance of the VA Clinic, which was located in the mall immediately adjacent to Mid Dakota. As Joan and Herman Johnson turned to re-enter the mall, Herman Johnson fell and hit his head on the floor of the vestibule. As a result, he suffered a laceration along his forehead. Joan Johnson then returned to Mid Dakota and announced that Herman Johnson had fallen and was injured. A registered nurse employed by Mid Dakota assisted Herman Johnson until he was taken by ambulance to St. Alexius Medical Center and was admitted for observation. While Herman Johnson was hospitalized, he suffered two episodes of respiratory arrest, and he died on December 27, 2012. The Johnsons sued Mid Dakota for negligence, breach of contract and professional negligence. Because the Johnsons failed to present sufficient evidence to raise genuine issues of material fact precluding summary judgment, the Supreme Court affirmed the district court's judgment. View "Johnson v. Mid Dakota Clinic, P.C." on Justia Law 2015-05-27 state North Dakota North Dakota Supreme Court Dale V. Sandstrom 20140274 http://law.justia.com/cases/mississippi/supreme-court/2015/2014-jp-01309-sct.html Mississippi Commission on Judicial Performance v. Thompson 2015-05-21T11:01:56-08:00 2015-05-22T04:55:09-08:00 The Commission on Judicial Performance filed a formal complaint against Rickey W. Thompson, Justice Court Judge, District 4, Lee County, charging him with judicial misconduct constituting violations of Canons 1, 2A, 2B, 3B(1), 3B(2), 3B(4), 3B(8), 3C(1), and 3C(2) of the Code of Judicial Conduct and constituting willful misconduct in office and conduct prejudicial to the administration of justice which brought the judicial office into disrepute in violation of Section 177A of the Mississippi Constitution of 1890, as amended. "We are concerned, and take into consideration, that Judge Thompson has not taken responsibility for his actions, and the likelihood of those actions being repeated in the future is great. Judge Thompson's willful disregard for his past discipline 'illustrates the magnitude of the [offenses] and indifference to litigants and [the Commission and the Supreme] Court in continuing to engage in [misconduct].'" The Supreme Court agreed with the Commission's recommendation and ordered that Judge Thompson: (1) be removed from office; and (2) be assessed fines and costs of the proceedings. View "Mississippi Commission on Judicial Performance v. Thompson" on Justia Law 2015-05-21 state Mississippi Supreme Court of Mississippi Randy G. Pierce 2014-JP-01309-SCT http://law.justia.com/cases/alaska/supreme-court/2015/s-15513.html Brandner v. Bateman 2015-05-15T09:00:10-08:00 2015-05-16T03:45:28-08:00 Dr. Michael Brandner's hospital privileges at Providence Alaska Medical Center were revoked after he violated hospital policy by failing to disclose an order from the Alaska State Medical Board that he undergo an evaluation of his fitness to practice medicine. Brandner appealed to the hospital's Fair Hearing Panel and Appellate Review Committee, but the termination was upheld. Brandner filed suit against the hospital and several doctors involved in the termination proceedings, alleging breach of contract and denial of due process. The superior court granted summary judgment in favor of the individual doctors because they were immune from suit. Finding that the executive committee and hearing panel reasonably interpreted the policy, the Supreme Court found Brandner did not raise any material evidence tending to show that the executive committee and hearing panel were motivated by malice. As such, the Court affirmed the superior court's order dismissing Brandner's claims against the individual doctors. View "Brandner v. Bateman" on Justia Law 2015-05-15 state Alaska Alaska Supreme Court Joel H. Bolger S-15513 http://law.justia.com/cases/federal/appellate-courts/ca3/15-1264/15-1264-2015-05-15.html In Re: The Matter Of The Grand Jury 2015-05-15T08:30:04-08:00 2015-05-15T09:06:26-08:00 In 1973, Doe organized his medical practice as a "professional association," a type of corporation doctors are permitted to form under New Jersey law. Since its creation, Doe has operated his practice through that entity. As of 2011, the entity employed six people. The government alleges that Doe entered into an illicit agreement with OTE, a blood laboratory, whereby it paid him monetary bribes for referring patients to it for blood testing. A grand jury subpoena was served on the entity's custodian of records, directing it to turn over documents, including records of patients referred to OTE, lease and consulting agreements, checks received by it for reasons other than patient treatment, correspondence regarding its use of OTE, correspondence with specified individuals and entities, and basic corporate records. The district court denied Doe's motion to quash. Doe persistently refused to let the entity comply; the court found it in civil contempt. Meanwhile, the entity fired its employees and hired independent contractors, tasked with "[m]aint[aining] accurate and complete medical records, kept in accordance with HIPAA and Patient Privacy standards," and assisting with billing practices. The Third Circuit affirmed, agreeing that Supreme Court precedent indicated that corporations may not assert a Fifth Amendment privilege, and that the subpoena was not overbroad in violation of the Fourth Amendment. View "In Re: The Matter Of The Grand Jury" on Justia Law 2015-05-15 federal U.S. Court of Appeals for the Third Circuit Cowen 15-1264 http://law.justia.com/cases/new-hampshire/supreme-court/2015/2013-087.html Conant v. O'Meara 2015-05-15T05:01:40-08:00 2015-05-15T06:31:23-08:00 Respondent Timothy O'Meara appealed a superior court order granting summary judgment against him and his law firm, O'Meara Newborn, PLLC, in an action brought by petitioners James and Anita Conant for the equitable recovery of fees paid to O'Meara. Anita Conant was injured in an automobile accident. James Conant retained O'Meara to represent the Conants in a personal injury suit arising out of the accident. He executed a contingent fee agreement providing, in part, "that O'Meara would be paid 33.33% of the gross amount recovered." Despite knowing that he did not have authority to settle for policy limits, O'Meara informed opposing counsel that he believed the suit was "a policy limits case" and had been instructed "to proceed to trial" if the policy limits were not paid. After expressing concern over O'Meara's unauthorized demand to settle, James Conant suggested that O'Meara reduce his fee. The parties discussed what O'Meara's fee should be if the case settled for the policy limits: O'Meara offered to reduce his potential fee from $3.67 million to $3.17 million, which angered James Conant. O'Meara "told the Conants that if they terminated his services, he would sue them for his one-third contingency fee and 'would win.'" Eventually the parties modified the original fee agreement, initialing handwritten changes indicating that O'Meara's fee was "to be negotiated." The dispute over fees continued, and on the day of a scheduled mediation in federal court in Pennsylvania, O'Meara informed the Conants at the courthouse "that he would not proceed with the mediation unless he received at least a $2 million fee." James Conant felt he had no choice but to sign a memorandum agreeing to that fee. O'Meara negotiated an $11.5 million settlement subject to certain contingencies. After the mediation, the Conants dismissed O'Meara and the case settled for $11.5 million. The Conants and O'Meara agreed that the Conants would pay O'Meara an undisputed fee of $750,000, place $1,250,000 in escrow, and arbitrate the issue of how this amount should be divided." An arbitration panel awarded O'Meara $837,000 of the escrow. Counsel for the Conants filed a grievance with the Attorney Discipline Office (ADO) alleging ethical violations by O'Meara. The ensuing disciplinary proceeding culminated with an order disbarring him. In appealing the superior court's order disgorging O'Meara of the $837,000 in fees he received at the end of arbitration, O'Meara argued that the trial court erred in: (1) permitting petitioners to relitigate matters determined in the prior arbitration; (2) failing to find the petitioners' action barred by the statute of limitations; and (3) ordering fee forfeiture. The Supreme Court affirmed in part and reversed in part: "we cannot say that the trial court's order to disgorge the entire $837,000 award, as opposed to some lesser amount, constitutes an unsustainable exercise of discretion. [. . .] the fraud on the tribunal doctrine does not apply to the Conants' claim for forfeiture of the $750,000 they paid O'Meara prior to arbitration. [. . .] the arbitrators 'were only tasked with considering whether O'Meara was entitled to a disputed portion of fees.' We fail to see how fraud on a tribunal can justify avoiding the time-bar of a claim not before that tribunal." The Court reversed the trial court's award of the $750,000 paid prior to arbitration. The Court affirmed in all other respects. View "Conant v. O'Meara" on Justia Law 2015-05-15 state New Hampshire New Hampshire Supreme Court Gary E. Hicks 2013-087 http://law.justia.com/cases/connecticut/supreme-court/2015/sc19208.html Stuart v. Freiberg 2015-05-12T05:00:21-08:00 2015-05-12T14:13:43-08:00 Plaintiffs and their older brother, Kenneth Stuart, Jr. (Kenneth) were the children of Kenneth Stuart, Sr. (Stuart). When Stuart died, Plaintiffs filed a complaint alleging that Kenneth, who became an estate fiduciary, unduly influenced Stuart and breached numerous fiduciary duties owed to them as estate beneficiaries. Throughout much of Plaintiffs' litigation against Kenneth, Kenneth engaged Defendant as a certified public accountant. Ultimately, the trial judge ruled against Kenneth and awarded monetary damages to Stuart's estate. Plaintiffs then commenced the present action against Defendant alleging that Defendant prepared inaccurate and misleading financial statements that facilitated the misappropriation of estate funds by Kenneth. The trial court granted summary judgment in favor of Defendant. The Appellate Division reversed in part and remanded. The Supreme Court reversed, holding that Plaintiffs, in objecting to summary judgment, did not present sufficient counterevidence of their reliance on Defendant's financial statements or a casual connection between his financial statements and their alleged injuries, as was necessary to demonstrate that a genuine issue of material fact existed on the counts of fraud, negligent misrepresentation, and accounting malpractice. View "Stuart v. Freiberg" on Justia Law 2015-05-19 state Connecticut Connecticut Supreme Court Richard A. Robinson SC19208 http://law.justia.com/cases/federal/appellate-courts/ca8/14-2089/14-2089-2015-05-04.html Rosemann v. Sigillito 2015-05-04T07:31:33-08:00 2015-05-04T11:07:15-08:00 Rosemann hired attorney Sigillito after Sigillito falsely informed Rosemann that he was an expert in international investments. In 2007, Rosemann received a $15.6 million buyout from the sale of his family's company. Sigillito instructed Rosemann to loan $5 million of the buyout to Metis, a Turkish contractor. When Rosemann resisted, Sigillito told him "the loan was guaranteed by [North Atlantic Treaty Organization] contracts and that Sigillito would structure the deal to protect Rosemann and defer taxes." Rosemann transferred $15.6 million to Sigillito, who wrote a $5 million check to Metis. For that service, Sigillito charged Rosemann $100,000. Sigillito took some money for his own use and loaned $10.8 million to another party in England. Approximately $2.75 million was repaid. In 2009, Metis defaulted and filed for bankruptcy protection in Turkey. Sigillito filed suit against Metis but the suit eventually was dismissed. The loan remains in default. In 2012, Sigillito was convicted of nine counts of wire fraud, four counts of mail fraud, six counts of money laundering, and conspiracy to commit mail and wire fraud. He was sentenced to 480 months' imprisonment. Rosemann sued for legal malpractice. The Eighth Circuit affirmed dismissal because Rosemann failed to name an expert who would testify about the appropriate standard of care. View "Rosemann v. Sigillito" on Justia Law 2015-05-04 federal U.S. Court of Appeals for the Eighth Circuit Kelly 14-2089 http://law.justia.com/cases/california/court-of-appeal/2015/c076759.html Cholakian & Assoc. v. Super. Ct. 2015-04-29T11:00:21-08:00 2015-04-30T03:20:58-08:00 In 2010, Debra Hackett was seriously injured in an accident in Sacramento County in which a tractor and trailer owned by Silva Trucking, Inc. and driven by Elaine McDonold jackknifed and collided with the vehicle being driven by Hackett. In 2012, the Hacketts filed a personal injury action in Sacramento County against Silva Trucking and McDonold. The jury awarded the Hacketts $34.9 million in damages. Silva Trucking was insured by Carolina Casualty Insurance Company (CCIC), who retained the law firm Cholakian & Associates to provide a defense. Silva Trucking had an excess liability insurance policy with Lexington Insurance Company (LIC), who retained the law firm Lewis, Brisbois, Bisgaard & Smith, LLP (Lewis Brisbois) as counsel. In 2014, Silva Trucking and McDonold brought suit in Sacramento County against LIC, CCIC, Cholakian & Associates and individual attorneys Kevin Cholakian and Jennifer Kung (collectively Cholakian), and Lewis Brisbois and individual attorney Ralph Zappala (collectively Lewis Brisbois). As to LIC and CCIC, the complaint alleged bad faith and breach of contract. As to the law firms and attorneys, the complaint alleged legal malpractice. The gravamen of the complaint was that the insurers unreasonably refused to accept the policy limit demand when the insured's liability was clear and damages were known to be in excess of the policy limit. The attorneys failed to advise their insurer clients to accept the demand and the consequences of failing to do so, and failed to advise Silva Trucking and McDonold of their need for personal counsel. LIC and CCIC responded with demurrers. Lewis Brisbois answered with a general denial and asserted 22 affirmative defenses. Under Code of Civil Procedure section 396b, subdivision (a), where an action has been filed in the "wrong venue," a defendant may move to transfer the case to the "proper court for the trial thereof." In such a case, "if an answer is filed," the court may consider opposition to the motion to transfer and may retain the action in the county where filed to promote the convenience of witnesses or the ends of justice. The question this case presented for the Court of Appeal's review was whether, in a multi-defendant case, an answer must be filed by all defendants before the court may consider opposition to the motion to transfer venue. The Court concluded the answer was yes. In this case, the trial court considered opposition to the motion before all defendants had answered the complaint. Accordingly, the Court issued a preemptory writ of mandate directing the trial court to vacate its order denying the motion to transfer and to issue a new order granting the motion. View "Cholakian & Assoc. v. Super. Ct." on Justia Law 2015-04-29 state California California Court of Appeal Elena J. Duarte C076759 http://law.justia.com/cases/federal/appellate-courts/cadc/14-7063/14-7063-2015-04-21.html Chicago Ins. Co. v. Paulson & Nace, PLLC 2015-04-21T07:01:54-08:00 2015-04-21T08:40:00-08:00 In 2004 the law firm was engaged to bring a medical malpractice action on behalf of a 14-year-old girl who had become paralyzed after surgery. The firm filed two complaints in Virginia state court. Each was dismissed: the first without prejudice for failure to correctly caption a pleading; the second with prejudice for filing outside the statute of limitations. Shortly thereafter, the firm applied for and obtained a new professional liability insurance policy. Asked whether there were "any circumstances which may result in a claim being made," the firm responded "no." The firm informed the insurer of the incident in 2009, but represented that it had occurred in 2008. In 2011, the insurance company noticed that the firm had made the caption error in 2006, before the policy period. In 2012, it notified the firm that it reserved its rights to deny coverage under the known risk exclusion. The girl filed a legal malpractice action in 2012, and was awarded $1,750,000 in 2013. The court found, as a matter of law and without expert testimony, that the firm was on notice of the potential malpractice claim and rejected arguments that the insurer had forfeited or waived its right to deny coverage. The D.C. Circuit affirmed. View "Chicago Ins. Co. v. Paulson & Nace, PLLC" on Justia Law 2015-04-21 federal U.S. Court of Appeals for the District of Columbia Circuit Wilkins 14-7063 http://law.justia.com/cases/nebraska/supreme-court/2015/s-13-1087.html Balames v. Ginn 2015-04-17T06:02:04-08:00 2015-04-18T12:42:38-08:00 Plaintiff brought this legal malpractice action for himself and three other individuals for whom he served as attorney in fact (collectively, Plaintiff). Plaintiff named as defendants an attorney and the firm at which the attorney practiced at the time the alleged malpractice occurred (collectively, Attorney), claiming that Attorney negligently failed to obtain signatures on a guaranty for a loan that Plaintiff made to a third party and failed to inform Plaintiff of the missing signatures. When the third party defaulted on the loan, Plaintiff could not obtain a judgment against the intended guarantors for the full amount of the third party's obligation. A jury returned a general verdict for Attorney. The district court granted Plaintiff's motion for a new trial, concluding that plain error permeating the proceedings. The Supreme Court vacated the district court's order sustaining Plaintiff's motion for a new trial and remanded with instructions to reinstate the judgment for Attorney, holding that the district court incorrectly concluded that plain error permeated the trial and thus abused its discretion in sustaining Plaintiff's motion for a new trial. View "Balames v. Ginn" on Justia Law 2015-04-17 state Nebraska Nebraska Supreme Court William M. Connolly S-13-1087 http://law.justia.com/cases/california/court-of-appeal/2015/h040646.html Paul v. Patton 2015-04-09T13:00:17-08:00 2015-04-09T13:38:50-08:00 Paul retained attorney Patton to draft an amendment to his revocable living trust. Paul signed the "Trust Amendment," which, as drafted by Patton, named his wife, Helen, and his children, Stephen, David, Alan, and Nancy, as beneficiaries. Stephen and David also are the successor trustees. Following Paul's death, they petitioned the probate court to modify the Trust Amendment, alleging it failed to conform to Paul's intentions by erroneously granting Helen an interest in brokerage accounts and personal and real property. In that probate court action, Patton admitted the Trust Amendment did not reflect Paul's intention that his brokerage accounts and personal and real property be divided among his children. Stephen and David settled the probate court action with Helen. The children filed the legal malpractice action, alleging that Patton failed to exercise reasonable care in performing legal services by failing to draft the Trust Amendment in a manner consistent with the decedent's intentions. The trial court dismissed. The court of appeal reversed. The trial court erred in concluding as a matter of law that the children could not establish Patton owed them a duty as beneficiaries; they should be permitted to amend their complaint to allege such a duty. View "Paul v. Patton" on Justia Law 2015-04-09 state California California Court of Appeal Eugene M. Premo H040646 http://law.justia.com/cases/alabama/supreme-court/2015/1120532.html Municipal Workers Compensation Fund, Inc. v. Morgan Keegan & Co. 2015-04-03T11:00:03-08:00 2015-04-06T03:43:12-08:00 Municipal Workers Compensation Fund, Inc. ("the Fund"), appealed a circuit court's order denying the Fund's motion to vacate a judgment entered on an arbitration award. The Fund entrusted the management and investment of approximately $50 million in assets to Morgan Asset Management, Inc. ("MAM"), and Morgan Keegan & Company, Inc. ("Morgan Keegan"). MAM served as an investment advisor for a managed account and certain mutual funds owned by the Fund. Morgan Keegan served as the broker-dealer for the Fund's managed account and had the authority as the broker-dealer to execute transactions in that account as directed by the Fund. A second account at Morgan Keegan held the mutual funds that had been sold to the Fund through a Morgan Keegan broker. The Fund stated that it directed MAM and Morgan Keegan to invest its funds conservatively and that it relied on MAM and Morgan Keegan for sound financial advice and management. However, according to the Fund, MAM and Morgan Keegan disregarded this mandate by recommending that the Fund purchase and hold what the Fund says were unsuitable investments, by overconcentrating the Fund's assets in investments that had undue exposure to the sub-prime mortgage market and in other risky investments, and by misrepresenting and failing to disclose material facts pertaining to the investments. The Fund claims that it sustained losses in excess of $15 million in 2007 and 2008 as a result of the actions of MAM and Morgan Keegan. The Fund initiated arbitration proceedings against MAM and Morgan Keegan by filing a statement of claim with the Financial Industry Regulatory Authority ("FINRA") pursuant to the arbitration provision contained in its contracts with MAM and Morgan Keegan, asserting claims of breach of fiduciary duty; breach of contract; negligence; fraud; violations of NASD and NYSE Rules; and violations of the Alabama Securities Act. Upon review, the Supreme Court concluded from the admissible evidence entered at trial, the Fund established an evident partiality on the part of one of the arbitrators, and that the Fund was entitled to have the judgment entered on the arbitration award vacated. The Court remanded the case for further proceedings. View "Municipal Workers Compensation Fund, Inc. v. Morgan Keegan & Co." on Justia Law 2015-04-03 state Alabama Supreme Court of Alabama Michael F. Bolin 1120532 http://law.justia.com/cases/california/court-of-appeal/2015/b249232.html Britton v. Girardi 2015-04-01T11:00:18-08:00 2015-04-01T11:29:41-08:00 Plaintiffs were represented by defendant attorneys in an action against State Farm arising out of the 1994 Northridge earthquake. Court-appointed retired judges presided over a 1997 aggregate settlement. In 2012, one of the plaintiffs conducted a random sampling of other plaintiffs' awards in the action, which, they claimed, revealed that the defendants had not properly disbursed or accounted for the settlement funds and had concealed this conduct from plaintiffs. Plaintiffs sought damages for failure to obtain their informed consent to an aggregate settlement and misappropriation of and failure to account for the settlement funds. The trial court dismissed, finding the claims based on speculation and barred by the statute of limitations. The court of appeal affirmed, rejecting arguments that the statute of limitations had not run under Probate Code section 16460 because they had no notice of wrongdoing and that actions for violations of Business and Professions Code section 6091 in failing to provide an accounting are not barred because their action was filed within one year of failure to comply with the statute. Where there are facts sufficient to put one on inquiry notice, the fraud statute of limitations starts running even when the defendant is a fiduciary. View "Britton v. Girardi" on Justia Law 2015-04-01 state California California Court of Appeal Johnson B249232 http://law.justia.com/cases/new-york/court-of-appeals/2015/39.html Schoenefeld v. State 2015-03-31T07:02:46-08:00 2015-03-31T10:43:47-08:00 Plaintiff, a New Jersey resident who was admitted to the practice of law in New York, maintained her only law office in New Jersey. When Plaintiff learned of the statutory requirement that nonresident attorneys must maintain an office within New York in order to practice in the State under N.Y. Jud. Law 470, Plaintiff commenced this action alleging that Judiciary Law 470 violated the Privileges and Immunities Clause of the U.S. Constitution. The U.S. Court of Appeals for the Second Circuit asked the New York Court of Appeals to set forth the minimum requirements necessary to satisfy the mandate that nonresident attorneys maintain an office within the State "for the transaction of law business" under Judiciary Law 470. The Court of Appeals answered by holding that the statute requires nonresident attorneys to maintain a physical office in New York. View "Schoenefeld v. State" on Justia Law 2015-03-31 state New York New York Court of Appeals Jonathan Lippman 39 http://law.justia.com/cases/federal/appellate-courts/ca5/14-40403/14-40403-2015-03-27.html Hines v. Alldredge 2015-03-30T04:00:45-08:00 2015-03-31T03:43:43-08:00 Ronald Hines was a Texas-licensed veterinarian who practiced since the mid-1960s. He worked mainly in traditional veterinary practices until he retired in 2002. After his retirement, he founded a website and began to post articles about pet health and care. These general writings soon turned to more targeted guidance and, as he acknowledged in his complaint, he began "to provide veterinary advice to specific pet owners about their pets." This advice was given via email and telephone calls, and Hines "never physically examine[d] the animals that are the subject of his advice," though he did review veterinary records provided by the animal owners. Texas required veterinarians to conduct a physical examination of an animal or its premises before they can practice veterinary medicine with respect to that animal. In 2012, the Texas Board of Veterinary Medical Examiners informed Hines that by providing veterinary advice without a physical examination, he had violated Texas law. Hines eventually agreed to: abide by the relevant state laws, including the physical examination requirement, one year of probation; a stayed suspension of his license; a $500 fine; and to retake the jurisprudence portion of the veterinary licensing exam. Hines thereafter filed suit in federal court, seeking declaratory and injunctive relief. He argued that the physical examination requirement violates his First Amendment right to free speech as well as his rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Board moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The district court granted the Board's motion in part and denied it in part. With respect to the equal protection claim, the court concluded that because the law did not discriminate on the basis of any suspect classification, the count was evaluated pursuant to rational basis review, and held that the physical examination requirement passed that deferential standard. The court dismissed Hines's substantive due process claim for similar reasons. The district court denied the motion to dismiss the First Amendment claims. It recognized that states have broad power to regulate professionals, but determined that because the physical examination requirement "regulate[s] professional speech itself," it is subject to the First Amendment. Relying on federal Supreme Court precedent, the district court held that Hines had stated a plausible claim that the Board had infringed his First Amendment rights. The Board moved to certify for interlocutory review the district court's order. The issue this case presented for the Fifth Circuit's review thus centered on whether Hines' First or Fourteenth Amendment rights were violated. The Court concluded it offends neither, reversing the district court's denial of the defendants' motion to dismiss the plaintiff's First Amendment counts and affirming the district court's granting of the defendants' motion to dismiss the plaintiff's Fourteenth Amendment counts. View "Hines v. Alldredge" on Justia Law 2015-03-27 federal U.S. Court of Appeals for the Fifth Circuit Higginbotham 14-40403 http://law.justia.com/cases/georgia/supreme-court/2015/s14g0919.html Gala v. Fisher 2015-03-27T10:06:41-08:00 2015-03-28T04:06:34-08:00 The Georgia Supreme Court granted certiorari to the Court of Appeals in "Fisher v. Gala," (754 SE2d 160 (2014)) to determine if that the appellate court properly held that, in a professional malpractice action, when a plaintiff files a complaint accompanied by an affidavit from a person not competent to testify as an expert in the action, OCGA 9-11-9.1 (e) permits the plaintiff to cure this defect by filing an amended complaint with the affidavit of a second, competent expert. Finding that the Court of Appeals was correct in holding that the pleading could be so amended, the Supreme Court affirmed the Court of Appeals' judgment. View "Gala v. Fisher" on Justia Law 2015-03-27 state Georgia Supreme Court of Georgia P. Harris Hines S14G0919 http://law.justia.com/cases/california/court-of-appeal/2015/a141564.html Loanvest I, LLC v. Utrecht 2015-03-26T11:00:21-08:00 2015-03-26T11:26:05-08:00 Utrecht represented Loanvest in a lawsuit arising out of a loan that was secured by an interest in Oakland property. Utrecht successfully opposed Madow's motion for a preliminary injunction that would have prevented Loanvest from paying out of the proceeds of the property's sale. In 2013, Madow became manager of Loanvest, which then sued Utrecht, claiming breach of the duty of loyalty and "looting" Loanvest to pay other obligations. The trial court dismissed under the anti-SLAPP (strategic lawsuit against public participation) statute (Code Civ. Proc., 425.16), finding that the claim was based on an act in furtherance of the right of petition and that Loanvest failed to make a prima facie showing of its ability to prevail in the action. The court of appeal reversed. Loanvest is not a third party allegedly harmed by Utrecht's representation of another client, but Utrecht's former client that allegedly was harmed as the result of his "egregiously breaching the duty of loyalty." That the complaint refers to another as Utrecht's "true client" and Loanvest as his "purported client" does not alter that admitted fact. A lawsuit that concerns a breach of duty does not depend on the exercise of a constitutional right. View "Loanvest I, LLC v. Utrecht" on Justia Law 2015-03-26 state California California Court of Appeal Stuart R. Pollak A141564 http://law.justia.com/cases/california/court-of-appeal/2015/a140038.html Keys v. Alta Bates Summit Med. Ctr. 2015-03-25T15:00:25-08:00 2015-03-25T16:07:32-08:00 In 2008 Knox, the mother of Keys and the sister of Smith underwent surgery on her thyroid. When Knox was transferred from a post-anesthesia care unit to a medical-surgical unit, a nurse noticed Knox's breathing was "noisy," and called the hospital's rapid assessment team to evaluate her. During the medical team's efforts Knox was without a pulse for a number of minutes and as a result of her blocked airway, she suffered a permanent brain injury. She died after life support was withdrawn. A jury awarded Keys and Smith damages on their claims for negligent infliction of emotional distress. The court of appeal affirmed, rejecting an argument that there was no evidence to support the jury's finding that plaintiffs meaningfully comprehended the medical negligence that led to the death of their family member at the time the negligence was occurring. View "Keys v. Alta Bates Summit Med. Ctr." on Justia Law 2015-03-25 state California California Court of Appeal Peter J. Siggins A140038 http://law.justia.com/cases/federal/appellate-courts/ca8/14-1894/14-1894-2015-03-25.html E3 Biofuels, LLC v. Biothane, LLC 2015-03-25T07:30:50-08:00 2015-03-25T09:51:54-08:00 In 2005 E3's predecessor began construction of an ethanol plant, to be powered, in part, by methane, and contracted with Biothane for a boiler system. Biothane, an expert in systems integration but not in boilers specifically, subcontracted with PEI to install and integrate the boilers. Biothane retained overall responsibility. Both are engineering companies. In 2007, PEI's engineer repeatedly tried and failed to light the main flame of one of the boilers. The repeated attempts caused gas to build up and explode. E3 claims that the boiler never worked properly afterward and that the plant failed as a result. The plant's owners eventually reorganized in bankruptcy. In 2011 (3 years and 364 days after the explosion) E3 sued, alleging torts against both companies and breach of contract against Biothane. The district court granted defendants summary judgment, finding all of E3's claims time-barred under Neb. Rev. Stat. 25-222, Nebraska's two-year limitations period for actions based on professional negligence. The Eighth Circuit affirmed. Regardless of whether the chain of events ultimately led to the breach of a contract, E3 still sued Biothane "for an action performed in a professional capacity." View "E3 Biofuels, LLC v. Biothane, LLC" on Justia Law 2015-03-25 federal U.S. Court of Appeals for the Eighth Circuit Raymond W. Gruender 14-1894 http://law.justia.com/cases/federal/appellate-courts/ca2/14-1410/14-1410-2015-03-25.html In re: Advanced Battery Techs., Inc. 2015-03-25T06:30:08-08:00 2015-03-25T09:36:10-08:00 The district court dismissed a suit brought by Sanderson, individually and on behalf of all others similarly situated, alleging that auditors (defendants) committed securities fraud by falsely representing that they performed their audits of Advanced Battery Technologies in accordance with professional standards and that the company's filings accurately reflected its financial condition from the 2007 through the 2010 fiscal years. The court found that the complaint failed adequately to plead scienter as required by the Private Securities Litigation Reform Act of 1995, 15 U.S.C. 78u‐4. Sanderson sought to correct these deficiencies by moving to file an amended complaint. The court denied the motion, concluding that even the new allegations failed to "rise to the level of recklessness." The Second Circuit affirmed, finding that the factual allegations did not give rise to a strong inference of either fraudulent intent or conscious recklessness, rather than mere negligence. View "In re: Advanced Battery Techs., Inc." on Justia Law 2015-03-25 federal U.S. Court of Appeals for the Second Circuit Raymond Joseph Lohier, Jr. 14-1410 http://law.justia.com/cases/montana/supreme-court/2015/da-14-0483.html Stokes v. Duncan 2015-03-24T14:01:48-08:00 2015-03-25T11:18:41-08:00 John Stokes appealed the judgment against him in a defamation case and retained attorney Greg Duncan to advise him on how to maintain his appeal while discharging his obligation in bankruptcy. After Duncan filed a bankruptcy petition on Stokes' behalf, the bankruptcy court granted Duncan's motion to withdraw. While the bankruptcy action was pending, Stokes filed the present action in state court against Duncan and his paralegal (collectively, Duncan) seeking damages for legal malpractice. The bankruptcy trustee intervened in the malpractice action, arguing that the action was an asset of the bankruptcy estate. The district court stayed all proceedings in the malpractice action. The bankruptcy court concluded that the malpractice action was an asset of the bankruptcy estate and subsequently sold the action to Duncan. After Stokes' bankruptcy proceeding was discharged, the bankruptcy court entered an order concluding that Stokes' claims against Duncan were property of the bankruptcy estate that had been purchased by Duncan. The state district court subsequently lifted the stay and granted Duncan's motion for summary judgment, concluding that Stokes' malpractice claims were property of the bankruptcy estate and had been purchased by Duncan. The Supreme Court affirmed, holding that Stokes' claims were part of the bankruptcy estate. View "Stokes v. Duncan" on Justia Law 2015-03-24 state Montana Montana Supreme Court Mike McGrath DA 14-0483 http://law.justia.com/cases/illinois/supreme-court/2015/117663.html Brunton v. Kruger 2015-03-19T07:01:12-08:00 2015-03-19T08:43:39-08:00 Brunton sued her brother, Kruger, as trustee of the trusts established by their late parents and as representative of their estates, and individual family members. Brunton, who was not named a beneficiary of the trusts, alleged undue influence and her mother's diminished capacity. The elder Krugers had consulted with an accounting firm (Striegel) for estate planning. They provided Striegel with confidential information about their family, income, assets, and goals. Striegel provided information to the attorney who prepared the Krugers' trust documents and wills. Brunton and the Estates issued subpoenas seeking discovery of the information and documents. A CPA at Striegel complied with the Estates' subpoenas, but did not provide the documents to Brunton. Striegel invoked the Illinois Public Accounting Act (225 ILCS 450/27), governing confidentiality of records. The circuit court ordered Striegel to produce tax documents, but held that the estate planning documents were privileged. Brunton then issued deposition subpoenas to a Striegel CPA and a non-CPA employee, seeking production of the estate planning documents. The court again found the estate planning documents privileged, but held that Striegel had waived the privilege by providing the documents to the representative of the Estates. The appellate court and Illinois Supreme Court affirmed. The privilege belongs to the accountant, not the client, and there is no testamentary exception to the privilege, but the accountant waived the privilege by disclosing information to one party. He cannot claim the privilege to avoid disclosure of the same information to the other party. View "Brunton v. Kruger" on Justia Law 2015-03-19 state Illinois Supreme Court of Illinois Rita B. Garman 117663 http://law.justia.com/cases/illinois/supreme-court/2015/117200.html Harris v. One Hope United, Inc. 2015-03-19T07:01:11-08:00 2015-03-19T08:52:51-08:00 One Hope contracts with the Illinois Department of Children and Family Services to provide services with the objective of keeping troubled families together. Seven-month-old Marshana died while her family participated in One Hope's program. The Cook County public guardian, as administrator of Marshana's estate, filed a wrongful death case to recover damages against One Hope and Marshana's mother,alleging that One Hope failed to protect Marshana from abuse or neglect and should not have allowed Marshana to be returned to her mother because of her unfavorable history and failure to complete parenting classes. Attorneys for the Public Guardian deposed the executive director of One Hope, who revealed the existence of a "Priority Review" report regarding Marshana's case. The priority review process considers whether One Hope's services were professionally sound, identifies "gaps in service delivery" and evaluates "whether certain outcomes have been successful or unsuccessful." The Public Guardian moved to compel production of the report. One Hope argued that the report was protected from disclosure by the self-critical analysis privilege. The circuit court determined that the privilege did not apply. The appellate court and Illinois Supreme Court affirmed. Relevant legislative acts and omissions evince a public policy determination by the General Assembly that the type of information sought in discovery here is not subject to a "self-critical analysis privilege." View "Harris v. One Hope United, Inc." on Justia Law 2015-03-19 state Illinois Supreme Court of Illinois Lloyd A. Karmeier 117200 http://law.justia.com/cases/california/court-of-appeal/2015/b248447.html Amis v. Greenberg Traurig, LLP 2015-03-18T11:00:18-08:00 2015-03-18T11:09:32-08:00 Amis alleged that his former attorneys committed malpractice by "caus[ing]" him to execute a settlement agreement that converted his company's corporate obligations into Amis's personal obligations without advising Amis that he had little to no risk of personal liability in the underlying litigation. All advice he received from the attorneys regarding the settlement agreement was given during mediation. The attorneys argued that Amis could not obtain evidence to support his claims, and that the law firm could not produce evidence to defend itself, because the disclosure of such evidence was barred by the mediation confidentiality statutes, Evidence Code section 1115. The trial court agreed on both counts and entered summary judgment for the firm. The court of appeal affirmed. The California Supreme Court has broadly applied the mediation confidentiality statutes and all but categorically prohibited judicially crafted exceptions, even in situations where justice seems to call for a different result. View "Amis v. Greenberg Traurig, LLP" on Justia Law 2015-03-18 state California California Court of Appeal Patti S. Kitching B248447 http://law.justia.com/cases/louisiana/supreme-court/2015/2014-o-2335.html In re: Justice of the Peace Lorne L. Landry, Plaquemines Parish, Ward 8 2015-03-17T12:01:39-08:00 2015-03-17T19:44:15-08:00 This matter stemmed from a recommendation of the Judiciary Commission of Louisiana regarding the failure of respondent Justice of the Peace Lorne L. Landry to comply with the financial reporting requirements of Supreme Court Rule XXXIX. Upon review, the Supreme Court found that the record established by clear and convincing evidence that Respondent willfully and knowingly failed to comply with the filing requirement of Rule XXXIX, thereby subjecting him to discipline. Respondent was ordered to pay a civil penalty of $500, plus costs. Respondent was further ordered to file his 2011 financial disclosure statement. View "In re: Justice of the Peace Lorne L. Landry, Plaquemines Parish, Ward 8" on Justia Law 2015-03-17 state Louisiana Louisiana Supreme Court Crichton 2014-O-2335 http://law.justia.com/cases/louisiana/supreme-court/2015/2014-o-2515.html In re: Judge Sheva M. Sims, Shreveport City Court, Caddo Parish 2015-03-17T12:01:37-08:00 2015-03-17T19:13:03-08:00 This matter comes before the court on the recommendation of the Judiciary Commission of Louisiana that Judge Sheva M. Sims of the Shreveport City Court, Caddo Parish, be suspended without pay for 90 days and ordered to reimburse the Commission's costs. The charge arose from an incident that occurred between Judge Sims and an assistant city prosecutor, Katherine Gilmer, on April 24, 2012, wherein Judge Sims stated that Ms. Gilmer was "held in contempt" of court and then ordered the dismissal of fifteen criminal cases on the docket that day. After reviewing the record and applicable law, the Supreme Court found that the charge against Judge Sims was supported by clear and convincing evidence. However, the Court rejected the recommended discipline and instead ordered Judge Sims be suspended without pay for a period of 30 days. Furthermore, the Court ordered Judge Sims to reimburse the Commission's costs incurred relative to its investigation and prosecution of this case. View "In re: Judge Sheva M. Sims, Shreveport City Court, Caddo Parish" on Justia Law 2015-03-17 state Louisiana Louisiana Supreme Court Bernette J. Johnson 2014-O-2515 http://law.justia.com/cases/georgia/supreme-court/2015/s14g0591.html Georgia v. Lampl 2015-03-16T04:00:57-08:00 2015-03-16T19:05:28-08:00 In March 2011, the Chief Judge of the Clayton Judicial Circuit, at the request of the Clayton County District Attorney, issued an order authorizing the impaneling of a special purpose grand jury to investigate certain alleged public corruption. The special purpose grand jury issued subpoenas to various witnesses, including appellee John Lampl, who testified before it in June 2011. In July 2011, the special purpose grand jury returned a 16-count bill of indictment against Lampl on charges of conspiracy in restraint of free and open competition, false statements and writings, and perjury. The indictment was subsequently nolle prossed in the aftermath of the Court of Appeals' holding in "Kenerly v. Georgia," (715 SE2d 688) (2011)), that the authority of a special purpose grand jury is limited to conducting investigations and does not include the power to issue indictments. Shortly thereafter, in September 2011, Lampl was indicted by a regular Clayton County grand jury on eight counts, including one perjury count, similar to those charged in the special purpose grand jury's initial indictment. The conspiracy and false statements counts all pertain to alleged conduct by Lampl in his capacity as City Manager for the City of Morrow, in connection with a City real estate development project known as "Olde Towne Morrow." The Georgia Supreme Court granted the State's petition for a writ of certiorari in this case to determine whether the Court of Appeals properly affirmed the superior court's order dismissing a particular count of the indictment and suppressing statements made by the defendant before the special purpose grand jury. While the Supreme Court agreed with the superior court's conclusion that the special purpose grand jury exceeded the scope of its authority in its investigation, the Court held that the relief granted was improper. The Court therefore reversed. View "Georgia v. Lampl" on Justia Law 2015-03-16 state Georgia Supreme Court of Georgia Carol W. Hunstein S14G0591 http://law.justia.com/cases/missouri/supreme-court/2015/sc94250.html Taylor v. Bar Plan Mut. Ins. Co. 2015-03-10T10:01:24-08:00 2015-03-10T17:28:13-08:00 Client retained Attorney to handle various legal claims pertaining to the management of a trust. Attorney later came to represent Client and his wife in matters of their own estate planning and administration. Upon Attorney's advice, Client made loans to both the Attorney's law firm and to a business from which Attorney received a commission for the referral. Attorney did not make a written disclosure or advise Client to seek independent legal advice regarding these transactions. The loans were never repaid. Client filed a malpractice action against Attorney for breach of fiduciary duty. Judgment was entered in favor of Client. Client subsequently filed an equitable garnishment action against Attorney's malpractice insurer (Insurer) seeking to recover the judgment under the policy. The trial court granted summary judgment for Insurer, concluding that coverage was excluded under the policy's "legal representative of investors" exclusionary clause. The Supreme Court affirmed, holding that, under the facts of this case, the trial court was correct in holding that the exclusionary clause unambiguously excluded coverage for Attorney's injurious acts and omissions. View "Taylor v. Bar Plan Mut. Ins. Co." on Justia Law 2015-03-10 state Missouri Supreme Court of Missouri Mary R. Russell SC94250 http://law.justia.com/cases/california/court-of-appeal/2015/b252962.html Sanowicz v. Bacal 2015-02-26T16:00:15-08:00 2015-02-26T16:29:44-08:00 Sanowicz and Bacal are licensed real estate salespersons. Sanowicz alleges that he and Bacal agreed to share commissions earned by either of them on certain sales of real property, but that Bacal breached that agreement. The two did share some commissions. The trial court dismissed, based on Business and Professions Code section 10137,4 which provides that it is unlawful for a real estate agent to accept compensation from any person other than the real estate broker under whom he or she is licensed. The court of appeal reversed, holding that licensed real estate agents may agree to share commissions earned under certain circumstances. In stating that an agent may pay commission to another licensee, the Legislature did not limit the payee to a licensed broker; instead it required that any such payment be made "through the broker" thus permitting payments to be made to licensed real estate professionals, whether agents or brokers. View "Sanowicz v. Bacal" on Justia Law 2015-02-26 state California California Court of Appeal Goodman B252962 http://law.justia.com/cases/virginia/supreme-court/2015/140500.html Smith v. McLaughlin 2015-02-26T07:04:15-08:00 2015-02-26T12:03:34-08:00 Plaintiff sought to bring a legal malpractice claim against his criminal defense attorneys and their respective law firms. The circuit court dismissed the criminal malpractice claim on the grounds that the settlement and release of some defendants by way of a release agreement was a release of all defendants. Plaintiff subsequently filed a legal malpractice suit against the law firm that represented him in the criminal malpractice claim (Defendant), arguing that the firm breached its duty to him. A jury found Defendant liable to Plaintiff and awarded judgment in the amount of $5.75 million. The Supreme Court reversed the circuit court's denial of Defendant's second plea in bar, reversed the circuit court's order affirming the jury award, vacated the jury award, and remanded the case, holding that the circuit court erred in refusing to sustain Defendant's second plea in bar in which Defendant argued that Plaintiff was barred from recovering on his legal malpractice claim because, as a matter of law, Defendant did not breach its duty by failing to correctly anticipate a judicial ruling on an unsettled legal issue. View "Smith v. McLaughlin" on Justia Law 2015-02-26 state Virginia Supreme Court of Virginia LeRoy F. Millette, Jr. 140500 http://law.justia.com/cases/illinois/supreme-court/2015/117096.html Ill. State Bar Ass'n Mut. Ins. Co. v. Law Office of Tuzzolino & Terpinas 2015-02-20T08:01:25-08:00 2015-02-20T14:15:23-08:00 Tuzzolino and his law firm represented Coletta. Coletta alleged that, in litigation, Tuzzolino failed to timely disclose expert witnesses; failed to retain needed expert witnesses; advised Coletta to settle for an amount far less than Coletta's losses; told Coletta that negotiations were continuing after dismissal; and signed settlement documents without informing Coletta. According to Coletta, Tuzzolino offered to pay $670,000 to settle any potential malpractice claim, but never paid. Three months later, shortly before the expiration of the firm's 2007-08 malpractice policy with ISBA Mutual, Tuzzolino completed a renewal application. In response to: "Has any member of the firm become aware of a past or present circumstance(s), act(s), error(s) or omission(s), which may give rise to a claim that has not been reported?" Tuzzolino checked "no." Mutual issued the policy. Tuzzolino's partner, Terpinas, learned of Tuzzolino's malfeasance a month later, when he received a lien letter from Coletta's attorney. Terpinas reported the claim to Mutual, which sought rescission and other relief. The circuit court entered summary judgment against Tuzzolino and rescinded the policy, finding that Mutual had no duty to defend Terpinas or the firm against Coletta's action. The appellate court reversed as to Terpinas, citing the common law "innocent insured doctrine." The Illinois Supreme Court reinstated the rescission, citing 215 ILCS 5/154, which allows rescission in cases involving misrepresentations "made by the insured or in his behalf," with an actual intent to deceive or that "materially affect the acceptance of the risk or hazard assumed by the insurer." View "Ill. State Bar Ass'n Mut. Ins. Co. v. Law Office of Tuzzolino & Terpinas" on Justia Law 2015-02-20 state Illinois Supreme Court of Illinois Charles E. Freeman 117096 http://law.justia.com/cases/california/court-of-appeal/2015/a139863.html Calvo, Fisher & Jacob v. Lujan 2015-02-19T12:00:16-08:00 2015-02-19T13:00:40-08:00 Guam attorney Lujan was sued in two lawsuits in Hawaii, followed by another in California, which could have cost him millions of dollars, loss of reputation, and possibly his license to practice law. He hired a law firm with offices in San Francisco and Guam to represent him, which included filing two more proceedings. The representation generated significant billings about which Lujan complained, refusing to pay a large balance. The firm withdrew from the representation, and sued. A jury returned a verdict for the firm of $945,947.90 "together with its disbursements and costs, including expert witness fees, in the amount of $_____, prevailing party attorneys' fees as allowed by contract in the amount of $_____, and pre-judgment interest as allowed by contract in the amount of $_____." The court later awarded $331,545.51 in prejudgment interest. The California Court of Appeal affirmed. The firm filed a memorandum of costs and a motion for attorney fees based on the engagement letter Lujan had signed. Following thousands of pages of briefing and oral argument, the trial court forwarded $1,532,674 in attorney fees, and $123,227 in expert witness fees, based on a Code of Civil Procedure section 998 offer. The court of appeal affirmed. View "Calvo, Fisher & Jacob v. Lujan" on Justia Law 2015-02-19 state California California Court of Appeal James A. Richman A139863 http://law.justia.com/cases/iowa/supreme-court/2015/131381.html Vossoughi v. Polaschek 2015-02-13T07:00:53-08:00 2015-02-13T12:44:09-08:00 Plaintiffs filed an amended petition against two attorneys who prepared documents in connection with the sale of real and personal property, alleging that Defendants negligently performed legal services in negotiating, drafting, and providing legal advice in connection with the documents. The district court granted Defendants' motion for summary judgment on statute of limitations grounds. The Supreme Court reversed, holding that summary judgment should not have been granted in favor of either attorney because (1) with regard to the first attorney, the district court identified the incorrect date at which Plaintiffs suffered actual damage; and (2) with regard to the second attorney, a fact question remained for trial. View "Vossoughi v. Polaschek" on Justia Law 2015-02-13 state Iowa Iowa Supreme Court Daryl L. Hecht 131381 http://law.justia.com/cases/federal/appellate-courts/ca7/14-1887/14-1887-2015-02-11.html Nora v. HSBC Bank USA, N.A. 2015-02-11T14:00:52-08:00 2015-02-11T19:50:51-08:00 HSBC initiated a Wisconsin foreclosure action on the Rinaldi's mortgage. The Rinaldis counterclaimed, alleging that the mortgage paperwork had been fraudulently altered and that HSBC lacked standing to enforce the mortgage. The Rinaldis lost at summary judgment and did not appeal. The court later vacated its foreclosure judgment after HSBC agreed to modify the loan. The Rinaldis filed a new state lawsuit reasserting their counterclaims. Before the court ruled on the defendants' motion to dismiss, the Rinaldis filed for bankruptcy. In those proceedings, HSBC filed a proof of claim for the mortgage. The Rinaldis objected and filed adversary claims, alleging fraud, abuse of process, tortious interference, breach of contract, and violations of RICO and the Fair Debt Collection Practices Act. The bankruptcy court found in favor of HSBC and recommended denial of the adversarial claims. The district court agreed, noting the Rinaldis' failure to comply with Federal Rules. The court dismissed the Rinaldis' adversary claims as meritless and warned that the Rinaldis would face sanctions if they filed additional frivolous filings because their tactics had "vexatious and time- and resource-consuming" and their filings "nigh-unintelligible." After additional filings of the same type, the Rinaldis voluntarily dismissed their bankruptcy. Their attorney filed additional frivolous motions. The court ordered the attorney to pay $1,000. The Seventh Circuit upheld the sanction. View "Nora v. HSBC Bank USA, N.A." on Justia Law 2015-02-11 federal U.S. Court of Appeals for the Seventh Circuit TINDER 14-1887 13-3865 http://law.justia.com/cases/federal/appellate-courts/ca7/13-2676/13-2676-2015-02-11.html PNC Bank v. Spencer 2015-02-11T14:00:48-08:00 2015-02-11T20:12:04-08:00 Spencer stopped paying her mortgage in 2008. In Wisconsin state court foreclosure proceedings, Spencer's attorney, Nora, adopted an "object-to-everything litigation strategy and buried the state court in a blizzard of motions." While a hearing on a summary judgment motion was pending in state court, Nora removed the case to federal court. Finding no objectively reasonable basis for removal, the district court remanded the case and awarded attorney's fees and costs to the lender, 28 U.S.C. 1447(c). The Seventh Circuit dismissed Spencer's appeal as frivolous; the district court did not order her to pay anything. The court affirmed the award as to Spencer "because she has not offered even a colorable argument that removal was reasonable" and ordered Nora to show cause why she should not be sanctioned for litigating a frivolous appeal. Several months later, noting Nora's similar behavior in another case, the court imposed an increased sanction of $2,500, suspended until the time, if ever, that Nora submits further inappropriate filings, and directed the clerk of court to forward a copy of the order and earlier opinion to the Office of Lawyer Regulation of the Wisconsin Supreme Court. View "PNC Bank v. Spencer" on Justia Law 2015-02-11 federal U.S. Court of Appeals for the Seventh Circuit TINDER 13-2676 http://law.justia.com/cases/california/court-of-appeal/2015/b258437.html Anten v. Super. Court 2015-01-30T15:00:46-08:00 2015-01-30T15:11:41-08:00 Anten and the Rubins jointly retained Gelfand and Kirios of the Weintraub law firm to advise and represent them on a matter of common interest: incorrect advice given by their prior tax attorneys. Anten filed a malpractice action against those lawyers concerning that representation. In response to discovery propounded by Anten, the lawyers objected that Anten's discovery sought communications between the lawyers and the Rubins that were protected by the attorney-client privilege, which the Rubins expressly declined to waive. The superior court denied a motion to compel further responses, on the basis of the attorney-client privilege objection. The court of appeal granted Anten writ relief. In a lawsuit between the attorney and one or more of the attorney's joint clients, based on an alleged breach of a duty arising from the attorney-client relationship, relevant communications between the attorney and any of the joint clients, made in the course of the attorney-joint-client relationship, are not privileged. View "Anten v. Super. Court" on Justia Law 2015-01-30 state California California Court of Appeal Frances Rothschild B258437 http://law.justia.com/cases/idaho/supreme-court-civil/2015/41663.html Minnick v. Hawley Troxell Ennis 2015-01-23T15:01:29-08:00 2015-01-23T19:53:35-08:00 Husband and wife Walter and A.K. Lienhart Minnick sued the law firm Hawley Troxell Ennis and Hawley, LLP (Hawley Troxell), alleging negligence in rendering services in connection with a real estate development project. On motion of Hawley Troxell for summary judgment, the district court dismissed the action as time-barred under the applicable statute of limitations. On appeal, the Minnicks argued that the district court erred in calculating accrual of their action under the statute, Idaho Code section 5-219(4). After review, the Supreme Court agreed, reversed the trial court's judgment, and remanded the case for further proceedings. View "Minnick v. Hawley Troxell Ennis" on Justia Law 2015-01-09 state Idaho Idaho Supreme Court - Civil Walters 41663 http://law.justia.com/cases/federal/us/574/14-6873/ Christeson v. Roper 2015-01-20T11:37:47-08:00 2015-01-20T12:40:02-08:00 In 1999, Christeson was convicted of three counts of capital murder and sentenced to death. The Missouri Supreme Court affirmed Christeson's conviction and sentence and denial of his post-conviction motion for relief. Under the one-year limitations period imposed by the Antiterrorism and Effective Death Penalty Act, 28 U. S. C. 244(d)(1), Christeson's federal habeas petition was due on April 10, 2005. Nine months before that deadline, the court appointed attorneys Horwitz and Butts to represent Christeson, 18 U. S. C. 599(a)(2). The attorneys subsequently acknowledged that they failed to meet with Christeson until six weeks after his petition was due. There is no evidence that they communicated with him at all. They finally filed the petition 117 days late. The district court dismissed; the Eighth Circuit denied a certificate of appealability. Christeson, who has severe cognitive disabilities, relied entirely on his attorneys, and may not have known of the dismissal. About seven years later, the attorneys contacted attorneys Merrigan and Perkovich to discuss Christeson's case. Christeson's only hope for merits review was to move under FRCP60(b) to reopen final judgment on the ground that AEDPA's statute of limitations should have been equitably tolled. Horwitz and Butts would not file that motion, premised on their own malfeasance. In 2014, Merrigan and Perkovich unsuccessfully moved to substitute counsel. The Eighth Circuit dismissed, reasoning that they were not authorized to file on Christeson's behalf. The Missouri Supreme Court set an October 29, 2014 execution date. The district court denied a second motion as untimely, stating that Horwitz and Butts had not "abandoned" Christeson, and reasoning that allowing the motion would permit "'abusive'" delays in capital cases. The Eighth Circuit affirmed. The Supreme Court stayed execution and reversed, stating that the denials contravened its 2012 decision, Martel v. Clair, concerning the "interests of justice" standard, and noting the obvious conflict of interest with respect to the original attorneys. View "Christeson v. Roper" on Justia Law 2015-01-20 federal U.S. Supreme Court Per Curiam 14-6873 http://law.justia.com/cases/federal/appellate-courts/cafc/13-1073/13-1073-2015-01-15.html NeoroRepair, Inc. v. Nath Law Grp. 2015-01-15T08:31:34-08:00 2015-01-15T09:09:24-08:00 In 2005, NeuroRepair retained Nath Law Group for prosecution of patent applications. NeuroRepair became dissatisfied and requested that Nath transfer its files to another law firm to continue prosecution before the USPTO. Nath withdrew from representation of NeuroRepair before the USPTO, but continued to assist NeuroRepair with other matters. NeuroRepair filed suit in 2009, alleging professional negligence, breach of fiduciary duty, breach of written contract, breach of oral contract, breach of implied covenant of good faith and fair dealing, negligent misrepresentation, and false promise. Nath removed the case to federal court on the ground that it was "a civil action relating to patents." After judgment in Nath's favor in 2012, NeuroRepair appealed, challenging the court's subject matter jurisdiction in light of the Supreme Court's 2013 pronouncement in Gunn v. Minto. The Federal Circuit vacated, with instructions to remand to California state court; no federal issue is necessarily raised, because any federal issues raised are not substantial in the relevant sense. Federal court resolution of malpractice claims that do not raise substantial issues of federal law would usurp the important role of state courts in regulating the practice of law within their boundaries, disrupting the federal-state balance approved by Congress. View "NeoroRepair, Inc. v. Nath Law Grp." on Justia Law 2015-01-15 federal U.S. Court of Appeals for the Federal Circuit Wallach 13-1073 http://law.justia.com/cases/new-mexico/supreme-court/2015/34-365.html Potter v. Pierce 2015-01-08T10:03:30-08:00 2015-01-09T04:51:03-08:00 The issue this case presented for the Supreme Court's review was one of res judicata, and whether the preclusive effect of a fee proceeding in bankruptcy court on a later lawsuit for legal malpractice allegedly committed in the course of the bankruptcy. After review, the Court held that the elements of res judicata were met and that Petitioner was sufficiently aware of his malpractice claim, which he could and should have brought in the bankruptcy proceeding. The Court affirmed dismissal of Petitioner's subsequent malpractice suit but emphasized that barring a claim on res judicata grounds requires a determination that the claimant had a full and fair opportunity to litigate the claim in the earlier proceeding. View "Potter v. Pierce" on Justia Law 2015-01-08 state New Mexico New Mexico Supreme Court Charles W. Daniels 34,365 http://law.justia.com/cases/idaho/supreme-court-civil/2014/41605.html Gailey v. Whiting 2014-12-18T13:02:06-08:00 2014-12-19T04:40:02-08:00 This case arose out of a professional negligence claim relating to a life insurance policy. Bill Gailey purchased the life insurance policy from Kim Whiting in 2010. In August 2011, Gailey cashed in the life insurance policy after receiving advice from Whiting to that end. Gailey suffered negative tax consequences from cashing in the policy and subsequently filed a complaint against Whiting alleging Whiting was negligent when he advised Gailey to cash in his policy without warning him of the potential tax consequences. Whiting subsequently moved the court to dismiss the action for lack of personal jurisdiction because Whiting no longer lived in Idaho, Gailey was a resident of Oregon, and the alleged tort did not occur in Idaho. The district court granted Whiting's motion and Gailey appealed to this Court. Finding no reversible error, the Supreme Court affirmed. View "Gailey v. Whiting" on Justia Law 2014-12-18 state Idaho Idaho Supreme Court - Civil Roger S. Burdick 41605 http://law.justia.com/cases/federal/appellate-courts/ca6/14-3108/14-3108-2014-12-12.html Penn, LLC v. Prosper Bus. Dev. Corp. 2014-12-12T08:31:13-08:00 2014-12-12T10:26:13-08:00 P&C filed suit on behalf of Penn, LLC against Prosper Corporation, Prosper's owners, and their counsel, the Arnold Firm, alleging violations of the Racketeering Influenced and Corrupt Organizations Act, fraud, conversion, unjust enrichment, and breach of fiduciary duty in connection with the management of Penn and Prosper's joint venture, BIGresearch. There had been court and arbitration proceedings since 2004, but Penn never before named the Arnold Firm as a defendant. The Arnold Firm served P&C with a letter purporting to satisfy the obligations of Fed. R. Civ. P. 11, threatening to seek sanctions if the matter was not dismissed, and claiming that the action was frivolous and had been filed for the "improper and abusive purpose" of disrupting the Arnold Firm's attorney-client relationship with Prosper and its owners. The district court ultimately dismissed the Arnold Firm from the action, but denied a motion for Rule 11 sanctions against P&C. The Sixth Circuit affirmed on the alternative ground that the Arnold Firm's failure to comply with Rule 11's safe-harbor provision made sanctions unavailable. The Arnold Firm's warning letter expressly reserved the firm's right to assert additional grounds for sanctions in its actual motion. View "Penn, LLC v. Prosper Bus. Dev. Corp." on Justia Law 2014-12-12 federal U.S. Court of Appeals for the Sixth Circuit Deborah L. Cook 14-3108 http://law.justia.com/cases/federal/appellate-courts/ca7/14-2046/14-2046-2014-12-05.html Nelson Bros. Prof'l Real Estate, LLC v. Freeborn & Peters, LLP 2014-12-05T16:30:37-08:00 2014-12-05T17:15:14-08:00 The Nelsons sued Chicago law firm Freeborn & Peters for malpractice, seeking $1.3 million in damages and were awarded more than $1 million. The malpractice claim arose from a transaction that the law firm handled involving acquisition of a shopping center under construction in Algonquin, Illinois. The law firm represented both the contract purchaser and the Nelsons, who invested in the venture, which suffered losses following the downturn of September 2008. The Seventh Circuit affirmed, finding that any error in the allocation of damages did not hurt the law firm or any creditors. View "Nelson Bros. Prof'l Real Estate, LLC v. Freeborn & Peters, LLP" on Justia Law 2014-12-05 federal U.S. Court of Appeals for the Seventh Circuit Richard Allen Posner 14-2046 http://law.justia.com/cases/idaho/supreme-court-civil/2014/40587.html Westby, et al v. Schaefer, M.D. 2014-11-25T14:02:30-08:00 2014-11-25T15:31:33-08:00 Christian Westby, James Westby, and Kristina Westby appealed the district court's denial of their motion to reconsider the court's protective order granted to Mercy Medical Center and Dr. Gregory Schaefer. This case arose from the Westbys' claim that Dr. Schaefer's and Mercy Medical's negligence resulted in lifelong brain damage to Christian Westby. Near the end of discovery, the district court granted Mercy Medical and Dr. Schaefer's protective order motion to prohibit the Westbys from deposing Mercy Medical and Dr. Schaefer's expert witnesses. The district court later denied the Westbys' motion to reconsider that protective order. The Westbys argued on appeal to the Supreme Court that the district court abused its discretion by not requiring any showing of good cause or unreasonable delay and basing its decision on a mistaken belief that the Westbys were dilatory. The Supreme Court agreed that the trial court erred, vacated the order and remanded the case for further proceedings. View "Westby, et al v. Schaefer, M.D." on Justia Law 2014-11-25 state Idaho Idaho Supreme Court - Civil Roger S. Burdick 40587 http://law.justia.com/cases/maine/supreme-court/2014/2014-me-133.html Estate of Cabatit v. Canders 2014-11-25T08:02:31-08:00 2014-11-25T17:55:37-08:00 Thomas Cabatit was survived by two sons, Jerediah and Joseph, who were given equal shares of Thomas's Estate after his death. In his will, Thomas designated his sister, Julibel, as the personal representative of his Estate. Julibel subsequently retained Steven Canders and Maine Legal Associates, P.A. (collectively, MLA) to represent her in probate of the Estate. Jerediah and Joseph later filed a petition to surcharge Julibel and remove her as personal representative, alleging mismanagement of the Estate. The probate court removed Julibel and designated Joseph as the successor personal representative. Thereafter, Joseph, in his capacities as a beneficiary and as the personal representative of the Estate, sued MLA, alleging that MLA breached duties it owed to the Estate and to Joseph as a beneficiary by giving Julibel improper advice. The superior court granted summary judgment for MLA, concluding that the scope of the attorney-client relationship did not include a duty to the Estate. The Supreme Court affirmed, holding (1) no attorney-client relationship existed between Joseph in his role as successor personal representative of the Estate and MLA; and (2) MLA did not owe a duty to Joseph as a nonclient. View "Estate of Cabatit v. Canders" on Justia Law 2014-11-25 state Maine Maine Supreme Judicial Court Ellen A. Gorman 2014 ME 133 http://law.justia.com/cases/maine/supreme-court/2014/2014-me-126.html Beaudry v. Harding 2014-11-13T08:02:45-08:00 2014-11-13T13:33:57-08:00 Northern Maine Transport, LLC (NMT), a Maine limited liability company with only two members, including Paul Beaudry, was administratively dissolved in 2009. In 2012, Beaudry filed this action, individually and purportedly on behalf of NMT, against Alan Harding and Hardings Law Offices for professional negligence and breach of fiduciary duty in 2010 when Harding represented NMT and possibly Beaudry in facilitating a settlement with a third party. The superior court granted Harding's motion for summary judgment, concluding (1) Beaudry lacked the legal capacity to bring suit on behalf of the administratively dissolved LLC or derivatively, and (2) Beaudry had no individual claim because he suffered no personal harm. The Supreme Court affirmed, holding that Maine law did not permit Beaudry to proceed on behalf of the administratively dissolved LLC under these circumstances, either through a derivative action or individually. View "Beaudry v. Harding" on Justia Law 2014-11-13 state Maine Maine Supreme Judicial Court Leigh Ingalls Saufley 2014 ME 126 http://law.justia.com/cases/vermont/supreme-court/2014/2013-142.html Choiniere v. Marshall and Beach, PPLC 2014-11-07T08:06:14-08:00 2014-11-07T11:35:50-08:00 Plaintiffs Paul Choiniere and P&D Consulting, Inc. sued defendants, attorney Anthony Marshall and his law firm, Harris Beach, PLLC, alleging that they made negligent and intentional misrepresentations while representing a client in a matter involving commercial loan guaranties. Choiniere argued that he relied upon the misrepresentations when deciding not to call a $1 million loan that he made in September 2003, and P&D Consulting argued that it relied upon the misrepresentations when deciding to loan an additional $1.3 million in June 2004. Upon review of the dispute, the Supreme Court reversed the trial court's decision granting defendants summary judgment. In sum, the Court held that there were several material issues in dispute that preclude summary judgment, including the viability of the guaranty agreement after an April 28, 2004 letter, whether plaintiffs' reliance on the April 28 letter was justifiable, whether Marshall was authorized to send the letter, and whether there are any economic damages. View "Choiniere v. Marshall and Beach, PPLC" on Justia Law 2014-11-07 state Vermont Vermont Supreme Court Marilyn S. Skoglund 2013-142 http://law.justia.com/cases/california/court-of-appeal/2014/h038894.html Nasrawi v. Buck Consultants, LLC 2014-11-06T10:00:51-08:00 2014-11-06T10:47:01-08:00 Plaintiffs, retired public employees of Stanislaus County and beneficiaries of a public pension trust administered by the Stanislaus County Employees Retirement Association sued defendants, providers of actuarial services to the Association, claiming that actuarial negligence caused the pension trust to be dramatically underfunded. The Association has not sued the actuaries for malpractice, which plaintiffs allege constituted a breach of the Association's fiduciary duties to them as beneficiaries. The trial court dismissed. The court of appeal affirmed dismissal of the Association, reasoning that the decision to sue or not is an exercise of discretion. The court reversed as to the actuaries, reasoning that a defendant may be found liable for aiding and abetting a breach of fiduciary duty even though the defendant owes no independent duty to the plaintiff. View "Nasrawi v. Buck Consultants, LLC" on Justia Law 2014-11-06 state California California Court of Appeal Eugene M. Premo H038894 http://law.justia.com/cases/south-dakota/supreme-court/2014/26720.html Hamilton v. Sommers 2014-10-30T05:03:23-08:00 2014-10-30T13:52:11-08:00 Appellant filed claims of legal malpractice and breach of fiduciary duty against his former attorneys (Appellees) based on an alleged conflict of interest relating to Appellees' representation of his co-defendants in an underlying lawsuit. The circuit court granted summary judgment for Appellees and dismissed Appellant's claims. The Supreme Court held that summary judgment was improper. Specifically, the Court held that the circuit court (1) erred in striking Appellant's expert opinion; (2) did not err by finding collateral estoppel precluded litigation of the limited issue of whether Hamilton signed a conflict of interest waiver; and (3) improperly weighed evidence in granting summary judgment regarding proximate cause. Remanded. View "Hamilton v. Sommers" on Justia Law 2014-10-29 state South Dakota South Dakota Supreme Court Lori S. Wilbur 26720 http://law.justia.com/cases/idaho/supreme-court-civil/2014/41193.html Williams v. Idaho State Board of Real Estate Appraisers 2014-10-29T14:01:53-08:00 2014-10-29T20:33:09-08:00 Idaho's Bureau of Occupational Licenses (Bureau) investigated and initiated disciplinary proceedings against petitioner-appellant Timothy Williams after it received complaints that he had engaged in various forms of professional misconduct as a licensed real estate appraiser. Ultimately, Idaho's Board of Real Estate Appraisers (Board) revoked Williams' license, imposed $4,000 in fines, and required Williams to pay the Board's attorney fees and costs. The district court, acting in an appellate capacity, affirmed the Board's decision to revoke Williams' license and to impose fines, but reversed the Board's order that Williams pay its attorney fees and costs. Williams appealed and the Board cross-appealed. Finding no reversible error, the Supreme Court affirmed the district court. View "Williams v. Idaho State Board of Real Estate Appraisers" on Justia Law 2014-10-29 state Idaho Idaho Supreme Court - Civil Jim Jones 41193 http://law.justia.com/cases/south-carolina/supreme-court/2014/27460.html Fabian v. Lindsay 2014-10-29T06:03:46-08:00 2014-10-29T07:59:42-08:00 Appellant Erika Fabian brought this action for legal malpractice and breach of contract by a third-party beneficiary, alleging respondents attorney Ross M. Lindsay, III and his law firm Lindsay & Lindsay made a drafting error in preparing a trust instrument for her late uncle and, as a result, she was effectively disinherited. Appellant appealed the circuit court order dismissing her action under Rule 12(b)(6), SCRCP for failing to state a claim and contended South Carolina should recognize a cause of action, in tort and in contract, by a third-party beneficiary of a will or estate planning document against a lawyer whose drafting error defeats or diminishes the client's intent. Upon review of the matter, the Supreme Court agreed, reversed and remanded for further proceedings. View "Fabian v. Lindsay" on Justia Law 2014-10-29 state South Carolina South Carolina Supreme Court Donald W. Beatty 27460 http://law.justia.com/cases/montana/supreme-court/2014/da-13-0723.html Passmore v. Watson 2014-10-28T13:41:32-08:00 2014-10-28T16:48:22-08:00 In 2007, Plaintiff was convicted of several sex-related crimes. In 2008, Plaintiff was sentenced to thirty-five years imprisonment. In 2013, Plaintiff filed a pro se claim against Defendant, the attorney who defended him during his criminal trial, claiming that Defendant failed to meet the appropriate standard of care for legal representation by failing to secure certain testimony at trial. The district court dismissed the lawsuit, concluding that Plaintiff's claim was time-barred under the three-year statute of limitations for legal malpractice. The Supreme Court affirmed, holding that the district court did not err in granting summary judgment to Defendant on the grounds that Plaintiff's claim was time barred by Mont. Code Ann. 27-2-206. View "Passmore v. Watson" on Justia Law 2014-10-28 state Montana Montana Supreme Court Michael E. Wheat DA 13-0723 http://law.justia.com/cases/idaho/supreme-court-civil/2014/41100.html Urrutia v. Harrison 2014-10-21T14:48:16-08:00 2014-10-25T03:01:56-08:00 The district court awarded attorneys fees to Lynn Urrutia against appellants Ty Harrison and Robert Schutte under Idaho Code section 12-120(3), 12-121, and 12-123, as well as sanctions against the appellants' attorney under Idaho Code section 12-123 and I.R.C.P. 11. These awards stemmed from the divorce of Lynn and Johnny Urrutia in 2007 and the divorce decree's division of the marital property. "'The most egregious conduct of defendants,' in the district court's opinion, was the filing of the Third Amended Counterclaim, which 'states two causes of action against Lynn: (1) that the second lien has priority over Lynn's claims and (2) that Lynn as the owner of the property was unjustly enriched.' The judge noted that the Second Lien, with a priority date of 2008, could not conceivably be higher in priority than Lynn's deed of trust, which was recorded in 2007. He observed that the Appellants knew the $220,000 claimed in the Second Lien, like the First Lien, contained numerous items that did not constitute improvements to the arena property and were not lienable under the mechanic's lien statutes. And, even though the Appellants knew that the owner of record of the arena property was Sundance Arena, LLC, they sought personal recovery against Lynn under an unjust enrichment theory for improvements made to the property, which she did not own." Finding no reversible error, the Supreme Court affirmed the award of fees and sanctions to Lynn Urrutia. View "Urrutia v. Harrison" on Justia Law 2014-07-31 state Idaho Idaho Supreme Court - Civil Jim Jones 41100 http://law.justia.com/cases/idaho/supreme-court-civil/2014/40595.html Taylor v. Riley 2014-10-21T14:48:04-08:00 2014-10-25T02:54:59-08:00 This case was a permissive appeal of an order denying the appellants' motions for summary judgment. The central issue was whether an attorney who, as counsel for a corporation, issued an opinion letter stating that a stock redemption agreement did not violate the law, could be held liable to the shareholder whose stock was redeemed if the opinion was incorrect and the redemption agreement was later declared void as violating state law. The Supreme Court held that the claim against appellant Richard Riley was barred by res judicata and that there could be a claim against the remaining appellants where the opinion letter was addressed to respondent and stated that he could rely upon it. View "Taylor v. Riley" on Justia Law 2014-08-22 state Idaho Idaho Supreme Court - Civil Daniel T. Eismann 40595 40599 http://law.justia.com/cases/new-york/court-of-appeals/2014/165.html Grace v. Law 2014-10-21T06:03:23-08:00 2014-10-21T15:16:58-08:00 Plaintiff retained Attorneys to pursue a medical malpractice action against the Veteran's Administration, the University of Rochester, and an opthalmologist. A federal district court disposed of the majority of Plaintiff's claims on summary judgment. After Plaintiff was informed by Attorneys that he was unlikely to succeed on his remaining claim, Plaintiff discontinued the underlying action. Subsequently, Plaintiff retained new counsel to sue Attorneys for legal malpractice in failing to timely sue the University and the opthalmologist. Defendants argued that Plaintiff was estopped from commencing this action because he failed to appeal the underlying action. Supreme Court denied Attorneys' motion for summary judgment. The Appellate Division affirmed. The Court of Appeals affirmed, holding (1) a failure to appeal bars a legal malpractice action only where the client was likely to have succeeded on appeal in the underlying action; and (2) in this case, Attorneys failed to provide sufficient evidence to determine that Plaintiff would have been successful on appeal. View "Grace v. Law" on Justia Law 2014-10-21 state New York New York Court of Appeals Sheila Abdus-Salaam 165 http://law.justia.com/cases/federal/appellate-courts/ca7/14-1404/14-1404-2014-10-20.html United States v. Nayak 2014-10-20T14:00:45-08:00 2014-10-20T14:04:38-08:00 Nayak owned outpatient surgery centers and made under-the-table payments to physicians that referred patients to his centers, including cash payments and payments to cover referring physicians' advertising expenses. Nayak instructed some of his collaborators not to report these payments on their tax returns. Nayak was charged with honest-services mail fraud, 18 U.S.C. 1341 and 1346, and obstruction of the administration of the tax system, 26 U.S.C. 7212(a). Although the indictment a alleged that Nayak intended "to defraud and to deprive patients of their right to honest services of their physicians" through his scheme, there was no allegation that Nayak caused or intended to cause any sort of tangible harm to the patients in the form of higher costs or inferior care. After denial of his motion to dismiss, Nayak entered a conditional guilty plea, reserving his right to appeal denial of his motion to dismiss the mail fraud charge. On appeal he argued that tangible harm to a victim is a necessary element of honest-services mail fraud, at least in cases not involving fraud by a public official. The Seventh Circuit affirmed, holding that actual or intended tangible harm is not an element. View "United States v. Nayak" on Justia Law 2014-10-20 federal U.S. Court of Appeals for the Seventh Circuit Joel Martin Flaum 14-1404 http://law.justia.com/cases/california/court-of-appeal/2014/a137679.html Stine v. Dell'Osso 2014-10-17T11:00:53-08:00 2014-10-17T13:18:12-08:00 In 2002, David hired the Attorneys to represent him in petitioning for his appointment as probate conservator of the person and estate of his mother, Donna. In his petition, David represented there were no conservatorship assets and that all of Donna's assets were held in her Trust, so that no bond was required. Donna actually owned significant assets, including real property and several individual retirement accounts (IRAs), individually and not as assets of her Trust. The probate court appointed David as conservator of both Donna's person and estate and waived bond. The Attorneys continued to represent David and allegedly "knew that Donna . . . had assets in her name that under California law were assets of the conservatorship," but never informed the probate court of their existence nor petitioned the court to require or increase a bond. David subsequently misappropriated over one million dollars. Stine, a subsequently-appointed licensed professional fiduciary sued David for financial elder abuse and conversion and the Attorneys for legal malpractice. The trial court dismissed the Attorneys. The court of appeal reversed holding that the successor trustee is not subject to any defense that can be interposed against David and David's malfeasance. View "Stine v. Dell'Osso" on Justia Law 2014-10-17 state California California Court of Appeal Kathleen M. Banke A137679 http://law.justia.com/cases/illinois/supreme-court/2014/116023.html Hayashi v. IL Dep't of Fin. & Prof'l Regulation 2014-10-17T07:02:20-08:00 2014-10-17T08:14:16-08:00 The Illinois Department of Financial and Professional Regulation (Department) permanently revoked the health care licenses of physicians (plaintiffs) pursuant to the Department of Professional Regulation Law (20 ILCS 2105/2105-165) as a result of plaintiffs' prior misdemeanor convictions for battery and criminal sexual abuse of their patients. The circuit court of Cook County dismissed their challenges. The appellate court and the Illinois Supreme Court affirmed, rejecting claims that the Act: did not apply to individuals who were convicted of a triggering offense prior to the Act's effective date; was impermissibly retroactive and impaired certain fundamental rights, in violation of substantive due process; violated procedural due process; was unenforceable based on the res judicata effect of the previous discipline imposed by the Department; violated federal and state constitutional protections against double jeopardy; violated the constitutional prohibition against bills of attainder; violated the federal takings clause; and violated federal and state constitutional prohibitions against ex post facto law. View "Hayashi v. IL Dep't of Fin. & Prof'l Regulation" on Justia Law 2014-10-17 state Illinois Supreme Court of Illinois Anne M. Burke 116023 116163 116190 http://law.justia.com/cases/indiana/supreme-court/2014/49s02-1402-pl-80.html Ind. State Ethics Comm'n v. Sanchez 2014-10-16T09:02:26-08:00 2014-10-16T10:37:44-08:00 Petitioner was fired from her job at the Indiana Department of Workforce Development for alleged misconduct. After it was discovered that Petitioner kept several items of state property in her possession, Petitioner was charged with theft. The charges were later dismissed. Thereafter, the State filed an ethics proceeding against Petitioner, alleging that she violated 42 Ind. Admin. Code 1-5-12. After an adjudicative hearing, the Indiana State Ethics Commission found that Petitioner did commit the alleged violation and barred her from future State executive branch employment. The Supreme Court affirmed the Commission's decision, holding (1) double jeopardy did not bar the proceeding before the Commission, and the criminal court's probable cause determination was not binding upon the Commission; (2) there was sufficient evidence to support the Commission's determination; and (3) the sanction imposed in this case was within the Commission's discretion. View "Ind. State Ethics Comm'n v. Sanchez" on Justia Law 2014-10-16 state Indiana Supreme Court of Indiana Mark S. Massa 49S02-1402-PL-80 http://law.justia.com/cases/louisiana/supreme-court/2014/2014-o-1528.html In re Justice of the Peace Meyers 2014-10-15T14:02:14-08:00 2014-10-16T19:38:55-08:00 In lieu of undergoing a formal audit, Louisiana law requires justices of the peace to file a sworn annual financial statement with the Louisiana Legislative Auditor. Officials who fail to file timely financial statements are notified that their names have been placed on a noncompliance list. According to a database maintained by the Legislative Auditor, respondent failed to file her annual financial statement for 2007, 2008, 2009. As of May 2013, when the hearing was held in this matter, respondent was still out of compliance for those years. In December 2010, the Chief Executive Officer of the Commission authorized the Office of Special Counsel to open a file regarding respondent based on the news report from a New Orleans television station that respondent's name had been placed on the Auditor's list. The Supreme Court found that the record established by clear and convincing evidence that respondent failed to comply with the filing requirement of La. Rev. Stat. 24:514, thereby subjecting her to discipline. Respondent was ordered suspended without pay for twelve months, with six months deferred conditioned on her filing the requisite sworn annual financial statements for years 2007, 2008, and 2009 within three months of the date of this judgment. Respondent was further ordered to reimburse and pay to the Commission $246.70 in costs. View "In re Justice of the Peace Meyers" on Justia Law 2014-10-15 state Louisiana Louisiana Supreme Court Greg G. Guidry 2014-O-1528 http://law.justia.com/cases/federal/appellate-courts/ca7/14-1449/14-1449-2014-10-14.html Sheikh v. Grant Reg'l Health Ctr. 2014-10-14T12:00:57-08:00 2014-10-14T12:05:07-08:00 In 2009 the doctor was hired by a small rural Wisconsin critical access hospital, as the director of its emergency room. Fired just months after being hired, he sued the hospital in under Title VII, claiming that the hospital had discriminated against him because of his Indian ethnicity. He alleged that a hospital employee said to him "you must be that Middle Eastern guy whom they hired as ER director" and accused him of taking her job, spat at him, and told him he belonged to a terrorist class of people and was a danger to the hospital. Hospital personnel complained to the plaintiff's superior that he was incompetent—that he had poor patient skills, behaved unprofessionally, misdiagnosed patient ailments, and couldn't get along with staff. His superior urged him to resign after he had worked only 12 shifts. After delays because the plaintiff initially acted pro se, and filings that were inadequate or nonresponsive, the judge dismissed the case for failure to respond to a motion for summary judgment. The Seventh Circuit affirmed, noting that "the pratfalls of a party's lawyer are imputed to the party" and that plaintiff offered no excuse for missing the deadline. View "Sheikh v. Grant Reg'l Health Ctr." on Justia Law 2014-10-14 federal U.S. Court of Appeals for the Seventh Circuit Richard Allen Posner 14-1449 http://law.justia.com/cases/washington/supreme-court/2014/88460-9.html Schmidt v. Coogan 2014-10-09T08:07:03-08:00 2014-10-10T03:39:38-08:00 In December 1995, Teresa Schmidt slipped and fell while visiting a Tacoma grocery store. She retained Timothy Coogan to represent her in a claim against the store. Just days before the statute of limitations ran, Coogan filed a complaint naming the wrong defendant. He subsequently filed two amended complaints, but the trial court dismissed the case as barred by the statute of limitations. Schmidt filed a complaint against Coogan, asserting claims for negligence and breach of contract. The case went to trial in November 2003, and the jury returned a verdict in favor of Schmidt and granted recovery for past economic and noneconomic damages. The trial court granted a new trial on the issue of damages only, finding that Coogan was denied a fair trial: Schmidt's counsel gave an improper closing argument, and the damages were so excessive as to unmistakably indicate that the verdict was the result of passion and prejudice. The Court of Appeals affirmed the trial court's order granting a new trial. In 2010, Schmidt moved for leave to amend the complaint to add a claim for outrage/reckless infliction of emotional distress, alleging that Coogan harassed, intimidated, and belittled her when she raised the problem of the statute of limitations before it expired. In the 2003 trial, the jury was instructed to determine general damages arising out of Coogan's conduct and malpractice. In the second trial, however, Coogan challenged the availability of general damages in legal malpractice cases. Because her counsel could not find settled authority either affirming or denying the availability of emotional distress damages in Washington, Schmidt sought to add a claim that encompassed the damages. The trial court denied Schmidt's motion to amend. Schmidt also filed a motion for summary judgment on the availability of general damages and a motion in limine. The court denied both motions. After Schmidt rested her case in the damages-only trial, Coogan moved for judgment as a matter of law, arguing that collectibility was an essential element of legal malpractice and that Schmidt presented no evidence that a judgment against Grocery Outlet would have been collectible. The court denied the motion, and the jury again returned a verdict in favor of Schmidt. Coogan appealed the jury verdict, and Schmidt cross appealed on the ground that general damages are available in attorney malpractice claims and that the trial court erred in denying her motion to amend the complaint. The Court of Appeals concluded that collectibility was an essential component of damages that Schmidt failed to prove, and it reversed the trial court's denial of Coogan's motion. This case presented two issues of first impression for the Supreme Court: (1) whether the elements of legal malpractice include the collectibility of an underlying judgment; and (2) whether emotional distress damages are available in legal malpractice cases. The Supreme Court reversed the Court of Appeals and affirm the trial court's judgment, holding that the uncollectibility of an underlying judgment is an affirmative defense to legal malpractice that defendant-attorneys must plead and prove. Furthermore, the Court held that the trial court properly denied emotional distress damages because Coogan's actions were not particularly egregious, nor was the subject matter personal. View "Schmidt v. Coogan" on Justia Law 2014-10-09 state Washington Washington Supreme Court Charles Wiggins http://law.justia.com/cases/illinois/supreme-court/2014/116362.html Goldfine v. Barack, Ferrazzano, Kirschbaum & Perlman 2014-10-02T07:01:55-08:00 2014-10-06T10:45:13-08:00 Plaintiffs purchased FCH stock through Shearson's broker, Steinberg, between 1987 and 1990. FCH filed for bankruptcy in 1991. Plaintiffs retained the law firm to represent them in claims under the Illinois Securities Law. At that time, they had a viable claim for rescission. The firm failed to serve the required rescission notice. In 1992, plaintiffs hired new counsel to pursue their claims against Shearson, which were later dismissed as time-barred. In 1994 plaintiffs filed a malpractice action against the law firm. The appellate court affirmed the dismissal of the Illinois Securities Law claim, but reversed as to common law fraud and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. In 2007, plaintiffs settled those claims for $3.2 million. Later, the trial court found the law firm liable and calculated damages: plaintiffs' $3.2 million settlement would be deducted from the total they paid for their 11 stock purchases, and 10% interest would be calculated on the remaining amount based on the dates of the stock purchases, for a total award of $4,091,752.19 plus attorney fees of $1,636,700.80, and $207,167.28 in costs and expenses. The appellate court affirmed, but remanded for recalculation of damages and attorney fees. The Illinois Supreme Court remanded for calculation of statutory interest damages on the full amount paid for each security from the date of purchase to the 2007 date of settlement, then deducting the $3.2 million recovery. View "Goldfine v. Barack, Ferrazzano, Kirschbaum & Perlman" on Justia Law 2014-10-02 state Illinois Supreme Court of Illinois Thomas L. Kilbride 116362