Reflections on the Movement in California to Repeal the State’s Ban on Affirmative Action

VIKRAM DAVID AMAR

Illinois law dean and professor Vikram David Amar offers three observations on a measure recently approved by the California legislature that would, if approved by the voters, repeal Proposition 209, the voter initiative that has prohibited affirmative action by the state and its subdivisions since its passage in 1996. Amar praises the California legislature for seeking to repeal Prop 209 and for seeking to do so using the proper procedures, and he suggests that if Prop 209 is repealed, legal rationales for the use of race should be based not only on the value of diversity (as they have been for some time now), but also on the need to remedy past wrongs against Black Americans.

Read More

UMG Recordings, Inc. v. Kurbanov

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-1124

Opinion Date: June 26, 2020

Judge: Roger L. Gregory

Areas of Law: Civil Procedure, Copyright, Intellectual Property

Plaintiffs, twelve record companies, filed suit against defendant alleging claims for five separate violations of the Copyright Act. Plaintiffs are Delaware corporations, with eight having their principal place of business in New York, three in California, and one in Florida. Defendant, born in Rostov-on-Don, Russia, is a Russian citizen who still resides in Rostov-on-Don. Defendant owns and operates websites that offer visitors a stream-ripping service through which audio tracks may be extracted from videos available on various platforms and converted into a downloadable format. The Fourth Circuit reversed the district court's grant of defendant's motion to dismiss, holding that defendant's contacts sufficiently show he purposefully availed himself of the privilege of conducting business in Virginia. Therefore, the exercise of specific personal jurisdiction under Federal Rule of Civil Procedure 4(k)(1) is appropriate if it is constitutionally reasonable. Because the district court did not perform a reasonability analysis in the first instance, the court remanded for the district court to do so.

The National Shipping Company of Saudi Arabia v. Valero Marketing & Supply Co.

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-20035

Opinion Date: June 30, 2020

Judge: Carl E. Stewart

Areas of Law: Civil Procedure

Pursuant to 28 U.S.C. 1292(a)(3), Valero appealed the district court's denial of its motion for certification for interlocutory appeal under 28 U.S.C. 1292(b). Valero argued that the district court erred in concluding that the dismissal and transfer of its third-party claims against Trafigura necessitated dismissal of its Federal Rule of Civil Procedure 14(c) tender of Trafigura in a separate action. The Fifth Circuit agreed with Trafigura and held that it lacked jurisdiction to entertain Valero's appeal under section 1292(a)(3) because the district court's ruling did not constitute a final determination of the rights and liabilities of the parties. In this case, the district court's December 2019 order granting Trafigura's motions to sever and transfer and to sever and dismiss did not determine the rights and liabilities of the parties. Accordingly, the court dismissed the appeal.

Audio Technica U.S., Inc. v. United States

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-3469

Opinion Date: June 26, 2020

Judge: Eric L. Clay

Areas of Law: Civil Procedure, Tax Law

Technica makes high-end audio equipment and claimed tax credits for increasing research activities under 26 U.S.C. 41 for several tax years. The R&D tax credit is available when taxpayers increase certain research expenses over time, with the increase measured in part against research costs from the five-year period from 1984-1988, taken as a percentage of the company’s gross receipts during those years (the fixed-base percentage). For the 2002–2005 and 2011 tax years, the IRS issued a notice of deficiency. Rather than litigate, Technica and the government reached settlement agreements, which were approved by the Tax Court. The settlements did not address the details but simply listed the dollar amounts of the agreed-upon deficiencies. According to Technica, these amounts were determined by a “specific agreement” as to the fixed-base percentage. With respect to the 2006–2010 tax years, Technica paid the amount requested by the IRS then sued for a refund, arguing that the government was judicially estopped from claiming that the .92% fixed-base percentage did not apply. The district court agreed, finding that because the government had entered into settlements for the other tax years using that same fixed-base percentage, it was judicially estopped from now arguing that the percentage was incorrect. The Sixth Circuit reversed. A court order memorializing a settlement agreement generally does not constitute judicial acceptance of the facts underpinning that agreement, and the orders approved by the Tax Court did not actually include the .92% rate.

Ruckelshaus v. Cowan

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2770

Opinion Date: June 26, 2020

Judge: Barrett

Areas of Law: Civil Procedure, Legal Ethics, Professional Malpractice & Ethics, Trusts & Estates

Their father set up a trust for the benefit of Elizabeth and Thomas, giving the siblings equal interests; if either died without children, the other would receive the remainder of the deceased sibling’s share. Thomas approached Elizabeth after their father's death, wanting to leave a portion of his share to his wife, Polly. In 1998, Elizabeth retained the defendants to terminate the trust; the representation letter made no mention of a life estate for Polly or a subsequent remainder interest for Elizabeth. The settlement agreement did not mention Polly or a life estate, nor did it restrict what either sibling could do with the trust funds. The agreement contained a liability release and stated that it was the only agreement among the parties. In 1999, Elizabeth signed the agreement and the petition to dissolve the trust. In 2000, the probate court granted the petition. Elizabeth and Thomas each received more than a million dollars. Thomas died in 2009 without children; his will devised his assets to Polly. When Polly died in 2015, she left her estate to her children. Elizabeth filed a malpractice claim. The Seventh Circuit affirmed summary judgment for the defendants, holding that the two-year Indiana statute of limitations began running no later than 2000 and that if Elizabeth had practiced ordinary diligence, she could have discovered then that her wishes had not been followed.

Sierra Club v. EPA

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-9507

Opinion Date: July 2, 2020

Judge: Robert Edwin Bacharach

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law

The issue this case presented for the Tenth Circuit's review involved an interpretation of an environmental regulation addressing the renewal of permits under Title V of the Clean Air Act. The statute and accompanying regulation allowed renewal of these permits only if they ensured “compliance with” all of the “applicable requirements.” The term “applicable requirements” was defined in the regulation, but not the statute. The Sierra Club interpreted the regulatory definition to require compliance with all existing statutory requirements; the EPA interpretd the regulatory definition more narrowly, arguing that the applicability of certain requirements was determined by the state permit issued under a separate part of the Clean Air Act (Title I). The Tenth Circuit agreed with the Sierra Club’s interpretation: the regulatory definition of “applicable requirements” included all requirements in the state’s implementation plan, and Utah’s implementation plan broadly required compliance with the Clean Air Act. So, the Court concluded, all of the Act’s requirements constituted “applicable requirements” under the regulation.

DeRoy v. Carnival Corp.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 18-12619

Opinion Date: June 30, 2020

Judge: Rosenbaum

Areas of Law: Admiralty & Maritime Law, Civil Procedure, Personal Injury

After injuring her foot on a rug while onboard a Carnival ship, plaintiff filed suit against Carnival in both state and federal court, seeking damages for the injuries she allegedly suffered onboard the ship. In this case, plaintiff entered into a contract with Carnival that contained a forum-selection clause. Under the forum-selection clause's plain language, when jurisdiction for a claim could lie in federal district court, federal court is the only option for a plaintiff. The court held that plaintiff's claim for negligence at sea falls well within the walls of the federal court's admiralty jurisdiction. Even without explicitly invoking admiralty jurisdiction, the court held that plaintiff's complaint is subject to Federal Rule of Civil Procedure 9(h)'s provision rendering her claim an admiralty or maritime claim.

Otto Candies, LLC v. Citigroup, Inc.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 18-12663

Opinion Date: July 1, 2020

Judge: Jordan

Areas of Law: Civil Procedure, International Law

Thirty-nine plaintiffs—two American and thirty-seven foreign—filed suit agianst Citigroup, claiming that fraudulent cash advances lured them into investing in or contracting with Oceanografía and that either Citigroup or Oceanografía knowingly misrepresented Oceanografía's financial stability. The Fourth Circuit reversed the district court's grant of Citigroup's motion to dismiss for forum non conveniens, holding that the district court did not apply the deference owed to the domestic plaintiffs, and it erred in weighing the Gulf Oil private interest factors as to all the plaintiffs because Citigroup did not satisfy its burden. In this case, the court held that the district court mistakenly gave only "reduced" deference to the domestic plaintiffs' choice of forum. The court also held that Citigroup—which had the burden of persuasion—did not support its claims that most of the relevant documents and witnesses are located in Mexico. Accordingly, the court remanded for further proceedings, including consideration of the United States' interests under the public interest factors.

League of Women Voters v. Newby

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 19-7027

Opinion Date: June 26, 2020

Judge: David S. Tatel

Areas of Law: Civil Procedure

In the underlying lawsuit, voting rights organizations alleged that the new Executive Director, Brian Newby, acted outside the scope of his authority by changing the Commission's policy on documentary proof of citizenship requirements. Eagle Forum subsequently moved, under Federal Rule of Civil Procedure 24(b), to permissively intervene for the limited purpose of gaining access to the sealed briefs and exhibits containing materials related to Commissioner Christy McCormick's testimony. Two years later, the district court denied Eagle Forum's motion in a Minute Order. The DC Circuit first held that the district court's order qualifies as an appealable collateral order. Under MetLife, Inc. v. Financial Stability Oversight Council, 865 F.3d 661 (D.C. Cir. 2017), the court held that Eagle Forum may intervene for the limited purpose of seeking to unseal references to the McCormick deposition. In so ruling, the court emphasized that this does not mean that those materials must be unsealed. Under the court's decision in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), the district court will still need to determine whether countervailing interests, including the government's privilege claims, justify continued sealing.

Bank of America Corp. v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-2357

Opinion Date: July 2, 2020

Judge: Wallach

Areas of Law: Civil Procedure, Tax Law

In 2009, Bank of America acquired Merrill Lynch. In 2013, Merrill Lynch “merged with and into” Bank of America. In 2017, Bank of America filed a complaint, seeking to recover overpaid interest on federal tax underpayments and additional interest on federal tax overpayments arising under 26 U.S.C. 6601 and 6611. The claimed overpayment interest arose from overpayments made by Merrill Lynch. The government moved to sever the Merrill Lynch overpayment interest claims exceeding $10,000 and requested that the district court transfer them to the Court of Federal Claims or, alternatively, dismiss them for lack of subject matter jurisdiction. The Magistrate Judge concluded and the district court affirmed that district courts have “subject matter jurisdiction over overpayment interest claims pursuant to 28 U.S.C. 1346(a)(1). The Federal Circuit vacated. The plain language of section 1346(a)(1) dictates that the term “any sum” refers to amounts that have been previously paid to, or collected by, the IRS, which, overpayment interest “[b]y its nature, . . . is not.” The conclusion that section 1346(a)(1) does not cover overpayment interest claims is consistent with the tax code’s broader statutory scheme; the legislative history does not contradict that conclusion.

Brown v. Berry-Pratt, as successor administrator of the Estate of Pauline Brown

Court: Supreme Court of Alabama

Docket: 1180348

Opinion Date: June 30, 2020

Judge: Mitchell

Areas of Law: Civil Procedure, Real Estate & Property Law, Trusts & Estates

Leah Brown, Robert Allen Brown ("Allen"), and Cheryl Woddail ("Cheryl") were heirs of Pauline Brown ("Brown"), who died without a will. Leah, Allen, and Cheryl appealed a circuit court judgment authorizing Ellen Berry-Pratt, the administrator of Brown's estate, to sell certain real property owned by Brown at the time of her death. Because Leah, Allen, and Cheryl did not establish the circuit court erred by entering its judgment in favor of Berry-Pratt, the Alabama Supreme Court affirmed.

Crook v. Allstate Indemnity Company, et al.

Court: Supreme Court of Alabama

Docket: 1180996

Opinion Date: June 26, 2020

Judge: Mendheim

Areas of Law: Civil Procedure, Contracts, Insurance Law, Real Estate & Property Law

Kevin Crook appealed summary judgment entered in favor of Allstate Indemnity Company ("Allstate Indemnity"), Allstate Insurance Company ("Allstate Insurance"), and The Barker Agency (hereinafter collectively referred to as "the defendants"). Crook owns lake-front property in Tuscaloosa County. The property consists of a house, a bathhouse, a garage, a deck, and a boat dock. In 2006, Crook, through The Barker Agency, obtained property insurance on the house and other structures from Allstate Indemnity. Allstate Indemnity issued a policy to Crook ("the policy") and provided uninterrupted insurance coverage of Crook's house from 2006 through 2015. On February 12, 2015, Allstate Indemnity conducted an inspection of the property for underwriting purposes. After the inspection, on February 23, 2015, The Barker Agency sent Crook a letter with the results, finding no "issues that impact [Crook's] current coverage, and you do not need to do anything further. ...our inspection... focused only on identifying certain types of hazards or conditions that might impact your future insurance coverage. It may not have identified some other hazards of conditions on your property." In April 2015, a storm damaged the deck and the boat dock. Ultimately, Crook sued defendants for breach of contract, bad-faith failure to pay a claim, negligent/wanton procurement of insurance, and estoppel, all relating to the policy's coverage of the storm damage. After review, the Alabama Supreme Court found no reversible error in the grant of summary judgment in favor of defendants and affirmed.

Daniels v. Hawthorne-Midway Lily Flagg, LLC

Court: Supreme Court of Alabama

Docket: 1190208

Opinion Date: June 26, 2020

Judge: Michael F. Bolin

Areas of Law: Civil Procedure, Personal Injury, Real Estate & Property Law

In December 2016, Geraldine Daniels was residing at the Hawthorne at Lily-Flagg apartment complex, which was owned by Hawthorne-Midway Lily Flagg, LLC ("Hawthorne-Midway"), and managed by Hawthorne Residential Partners, LLC, and its community manager, Tracy Wiley. Daniels sued Hawthorne-Midway and Wiley for damages resulting from injuries she suffered when she fell while stepping off a sidewalk at the complex. Daniels appealed summary judgment entered in favor of Hawthorne-Midway and Wiley. The Alabama Supreme Court affirmed: Daniels did not demonstrate any genuine issue of material fact that prevented Hawthorne-Midway and Wiley from being entitled to a judgment as a matter of law.

Ex parte Doris Sanders.

Court: Supreme Court of Alabama

Docket: 1190478

Opinion Date: June 26, 2020

Judge: Sellers

Areas of Law: Civil Procedure, Personal Injury

Doris Sanders petitioned the Alabama Supreme Court for a writ of mandamus directing the Macon Circuit Court to vacate its March 13, 2020, order transferring the underlying action to the Montgomery Circuit Court pursuant to section 6-3-21.1, Ala. Code 1975, Alabama's forum non conveniens statute. In 2019, Sanders, a resident of Barbour County, was involved in a multi-vehicle accident on Interstate 85 in Macon County. Sanders sued the drivers of the other two vehicles, Sae Him Chung and Shawn Reaves, at the Macon Circuit Court, alleging negligence and wantonness and seeking damages for her accident-related injuries. Sanders also included a claim against her insurer, Alfa Mutual Insurance Company, seeking to recover uninsured/underinsured motorist benefits. Defendants requested the change of venue to Montgomery County, arguing: (1) that the accident occurred in Macon County and was investigated there; (2) that Sanders was employed by the State of Alabama Tourism Department, which is located in Montgomery County; (3) that Chung lived and worked in Montgomery County; and (4) that Kellie McElvaine, a witness to the accident, lived and worked in Montgomery County. Sanders opposed the motion, arguing defendants failed to carry their burden of showing a transfer to Montgomery County was required under the statute. Sanders stated that she did not work in Montgomery County; rather, she said, she worked in Macon County at the Macon County Rest Area. And she received medical treatment for her injuries in Lee County and Barbour County, both of which were closer to Macon County than to Montgomery County. Thus, she asserted that her health-care providers in Lee County and Barbour County would have to travel farther if the case were transferred to Montgomery County. The Alabama Supreme Court concluded the Macon Circuit Court exceeded its discretion in transferring this case to the Montgomery Circuit Court. The Court therefore granted the petition for mandamus relief, and directed the Macon Court to vacated its March 2020 transfer order.

Ex parte Freudenberger

Court: Supreme Court of Alabama

Docket: 1190159

Opinion Date: June 30, 2020

Judge: Sellers

Areas of Law: Civil Procedure, Personal Injury

Defendants Curt Freudenberger, M.D., and Sportsmed Orthopedic Surgery & Spine Center, P.C. petitioned the Alabama Supreme Court for a writ of mandamus to direct the Madison Circuit Court to vacate its October 10, 2019, protective order to the extent it imposes conditions upon ex parte interviews defense counsel intends to conduct with physicians who treated one of the plaintiffs, Rhonda Brewer, in connection with her injuries. In August 2019, Rhonda and her husband, Charlie, sued Dr. Freudenberger and Sportsmed Orthopedic (collectively, "defendants"), asserting claims of medical malpractice based on injuries Rhonda allegedly suffered during the course of a surgical procedure performed by Dr. Freudenberger. Charlie also asserted a claim of loss of consortium. Before discovery, defendants moved for the entry of a "qualified protective order," pursuant to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), and filed a proposed order with their motion. The trial court entered a qualified protective order authorizing the disclosure of Rhonda's protected health information; the order, however, imposed conditions on defense counsel's contacts with her treating physicians. Defendants moved the trial court to reconsider its order, contending that Alabama law allowed ex parte interviews with treating physicians, that HIPAA did not prohibit ex parte interviews with treating physicians, and that the restrictions imposed effectively deprived them from conducting ex parte interviews. The trial court denied reconsideration. The Supreme Court determined the trial court exceeded its discretion by requiring the Brewers' counsel to receive notice of, and have an opportunity to attend, ex parte interviews that defense counsel intended to conduct with Rhonda's treating physicians. Accordingly, the additional conditions imposed by the trial court were not justified based on the Brewers' objection that ex parte communications would violate HIPAA and the Alabama Rules of Civil Procedure. The Court granted defendants' petition and issued the writ. The trial court was directed to vacate its order to the extent it imposed conditions upon defense counsel's ex parte interviews with Rhonda's treating physicians.

Ex parte Joann Bashinsky.

Court: Supreme Court of Alabama

Docket: 1190193

Opinion Date: July 2, 2020

Judge: Mendheim

Areas of Law: Civil Procedure, Trusts & Estates

Joann Bashinsky petitioned the Alabama Supreme Court for mandamus relief, seeking to direct the Jefferson Probate Court to vacate orders disqualifying her attorneys from representing her in the underlying proceedings and appointing a temporary guardian and conservator over her person and property. Bashinsky also sought dismissal of the "Emergency Petition for a Temporary Guardian and Conservator" that initiated the underlying proceedings and the petition for a permanent guardian and conservator filed simultaneously with the emergency petition in probate court, both of which were filed by John McKleroy and Patty Townsend. McKleroy had a professional relationship with Ms. Bashinsky that dated back to 1968, the year she and Sloan Bashinsky married. Townsend previously served the Bashinsky family as Mr. Bashinsky's executive assistant. She was the corporate secretary, controller, and chief financial officer at Golden Enterprises, and she served as Ms. Bashinsky's personal financial assistant beginning in 2017, often having daily contact with Ms. Bashinsky. At the time of the events in question, Ms. Bashinsky's personal estate was estimated to be worth $80 million, and her entire estate (including trusts and business assets) was valued at $218 million. Ms. Bashinsky's only blood relative was her daughter's only son, Landon Ash. The emergency petition, filed October 1, 2019, stated that loan amounts to Ash increased over time, and that Ash's total amount of indebtedness to Ms. Bashinsky at that time was approximately $23.5 million. Ash allegedly borrowed $13.4 million from Ms. Bashinsky in 2019 for his various business ventures. The emergency petition alleged that Ms. Bashinsky's financial transactions with Ash "are problematic in that, if the IRS were to review these loans, they might have tremendous tax consequences for Ms. Bashinsky." The petition stated McKleroy and Townsend witnessed a decline in Ms. Bashinsky's faculties in their discussions with her about financial matters. An evaluation from a geriatric physician at the University of Alabama opined Ms. Bashinsky suffered from dementia. The Alabama Supreme Court determined the permanent petition for appointing a guardian and conservator over the person and property of Ms. Bashinsky was not properly before the Supreme Court; mandamus relief with respect to that petition was denied. The Court determined an October 17, 2019 order appointing a temporary guardian and conservator for Ms. Bashinsky was void, as was the order disqualifying Ms. Bashinsky's counsel. The Supreme Court therefore granted the petition for the writ of mandamus as to those orders and directed the probate court to vacate its October 17, 2019, orders, to require the temporary guardian and conservator to account for all of Ms. Bashinsky's funds and property, and to dismiss the emergency petition.

Ex parte Kathy Russell, R.N.

Court: Supreme Court of Alabama

Dockets: 1180317, 1180319, 1180318

Opinion Date: June 26, 2020

Judge: Mitchell

Areas of Law: Civil Procedure, Medical Malpractice

Lamerle Miles ("Miles"), as the personal representative of the estate of her deceased mother Tameca Miles ("Tameca"), sued Coosa Valley Medical Center ("CVMC") and other named and fictitiously named parties, alleging that they had engaged in negligent, wanton, and outrageous conduct that caused Tameca's death. Miles specifically alleged that multiple CVMC employees had breached the applicable standards of care, resulting in the Sylacauga Police Department removing Tameca from the CVMC emergency room before she was treated for what was ultimately determined to be bacterial meningitis. Miles did not identify any specific CVMC employees in her original complaint, but she later filed a series of amendments substituting Kristen Blanchard, Teshia Gulas, Carla Pruitt, and Kathy Russell for fictitiously named defendants. After being substituted as defendants, the CVMC petitioners moved the trial court to enter summary judgments in their favor, arguing that they had not been named defendants within the two-year period allowed by the statute of limitations governing wrongful-death actions. The Talladega Circuit Court denied those motions, and the CVMC petitioners sought mandamus relief from the Alabama Supreme Court. After review, the Court denied petitions filed by Blanchard, Gulas, and Pruitt. The Court granted Russell's petition because Miles' complaint did not state a cause of action against her.

Odom v. Helms et al.

Court: Supreme Court of Alabama

Docket: 1180749

Opinion Date: June 26, 2020

Judge: Tom Parker

Areas of Law: Civil Procedure, Criminal Law, Government & Administrative Law, Personal Injury

Bernadine Odom appealed a summary judgment entered in favor of several supervisory officers in the Alabama Law Enforcement Agency, Department of Public Safety, Highway Patrol Division, in a lawsuit based on the misconduct of a state trooper. In 2015, Odom was involved in an automobile accident. State Trooper Samuel Houston McHenry II responded to the scene. Odom's vehicle was inoperable, so after McHenry investigated the accident, he gave her a ride, ostensibly to a safe location. At 12:12 a.m., he radioed his post dispatcher that he was en route with Odom to an exit about 10 miles from the accident scene. He did not mention his vehicle's mileage as of the time he left the accident scene. Instead of taking Odom directly to the exit, McHenry took her to a wooded area and sexually assaulted her. At 12:21 a.m., he radioed that he was dropping Odom off at the exit, and at 12:25 he radioed that he had completed the drop-off. Within two days, McHenry's employment was terminated based on his misconduct. McHenry was charged with first-degree rape, and he pleaded guilty to sexual misconduct. Odom then filed this civil lawsuit against McHenry and law enforcement officials alleging violations of various law-enforcement policies and procedures, and well as failing to properly train and supervise McHenry. Because Odom could not demonstrate the supervisory defendants were not entitled to State-agent immunity, the Alabama Supreme Court affirmed judgment in their favor.

Stiff v. Equivest Financial, LLC

Court: Supreme Court of Alabama

Docket: 1181051

Opinion Date: June 26, 2020

Judge: Mitchell

Areas of Law: Civil Procedure, Real Estate & Property Law

Mark Stiff's property was sold at a tax sale that took place inside the Bessemer courthouse instead of "in front of the door of the courthouse" as required by section 40-10-15, Ala. Code 1975. He argued that the sale was void because of that irregularity. To that, the Alabama Supreme Court agreed and therefore reversed the circuit court's judgment refusing to set aside the tax sale. "The tax-sale statutes include a clear list of procedures designed to protect the rights of property owners and the public. The requirement that a tax sale be held in a uniform public location encourages fairness and transparency, and it supports the legitimacy of the tax-sale system as a whole. If the 'in front of the door of the courthouse' requirement is no longer important to Alabamians, it is up to the legislature (not the courts) to remove it."

Williams v. Barry

Court: Supreme Court of Alabama

Docket: 1180352

Opinion Date: June 26, 2020

Judge: Alisa Kelli Wise

Areas of Law: Civil Procedure, Medical Malpractice, Personal Injury

Angela Williams, as mother and next friend of Li'Jonas Earl Williams, a deceased minor, appealed a judgment as a matter of law entered in favor of the remaining defendants, Dr. Wesley H. Barry, Jr., and Advanced Surgical Associates, P.C. Li'Jonas Williams was a 17-year-old with sickle-cell disease. In June 2014, Li'Jonas went to the emergency room at Southern Regional Medical Center in Georgia ("the Georgia hospital") complaining of back and chest pain. A CT scan performed at the Georgia hospital showed that Li'Jonas had cholelithiasis, which is stones in the gallbladder. Li'Jonas and Williams saw Li'Jonas's pediatrician in Montgomery, Dr. Julius Sadarian. Dr. Sadarian referred Li'Jonas to Dr. Barry for gallbladder removal. Dr. Barry testified that Li'Jonas tolerated the procedure well; that Li'Jonas did not experience any complications during the surgery; and that Li'Jonas had only about 10ccs (two teaspoons) of blood loss during the surgery. Li'Jonas did not experience any problems when he was in the post-anesthesia-care unit or when he was in the outpatient recovery room. On the evening of August 4, 2014, Li'Jonas was found unresponsive at his home. He was transported by ambulance to the emergency; ultimately efforts to revive Li'Jonas were unsuccessful and he died a half hour after admission to the ER. In her fourth amended complaint, Williams asserted a wrongful-death claim based on allegations of medical malpractice pursuant to the Alabama Medical Liability Act against defendants. Judgment was entered in favor of defendants, and Williams appealed. The Alabama Supreme Court found that when the evidence was viewed in a light most favorable to the plaintiff, Williams presented substantial evidence to create a factual dispute requiring resolution by the jury as to the issue whether the surgery performed by Dr. Barry was the proximate cause of Li'Jonas's death. It therefore reversed the trial court's judgment and remanded for further proceedings.

Alford v. County of Los Angeles

Court: California Courts of Appeal

Docket: B293393(Second Appellate District)

Opinion Date: July 1, 2020

Judge: Elizabeth A. Grimes

Areas of Law: Civil Procedure

Plaintiff filed a petition for writ of mandate under Code of Civil Procedure section 1094.5, seeking to overturn the decision to keep his name on the Child Abuse Central Index. The Court of Appeal reversed the trial court's grant of summary judgment in favor of the Department, holding that the Department did not serve notice of its decision in compliance with section 1094.6 and thus the statute of limitations did not bar his petition. Pursuant to section 1094.6, an agency must not add confusing information to the required notice that could mislead affected parties about the timing for seeking judicial review.

Barriga v. 99 Cents Only Stores LLC

Court: California Courts of Appeal

Docket: E069288(Fourth Appellate District)

Opinion Date: June 26, 2020

Judge: Art W. McKinster

Areas of Law: Civil Procedure, Class Action, Labor & Employment Law

Plaintiff Sofia Barriga filed this lawsuit against 99 Cents Only Stores LLC, (99 Cents) individually, and on behalf of similarly situated current and former nonexempt employees of 99 Cents hired before October 1, 1999, pleading various Labor Code violations and violation of the unfair competition law. Plaintiff alleged 99 Cents had a zero-tolerance policy that required its stores to lock their doors at closing time, therefore, forcing nonexempt, nonmanagerial employees, who worked the graveyard shift and clock out for their meal break or at the end of their shift, to wait for as long as 15 minutes for a manager with a key to let them out of the store. According to plaintiff, 99 Cents did not pay its employees for the time they had to wait be let out, and the policy denied employees their full half-hour meal break. Plaintiff moved the trial court to certify two classes: (1) “Off the Clock Class,” and (2) “Meal Period Class.” 99 Cents opposed the certification motion, contending there was no community of interests among putative class members, and the lack of common issues among putative class members would render a class action unmanageable. Plaintiff moved to strike 174 declarations of employee declarants who were members of the proposed classes on the grounds the process by which they had been obtained was improper, and because they were substantively inconsistent with the subsequent deposition testimony of 12 of declarants. Concluding it lacked the statutory authority to strike the declarations, the trial court denied plaintiff’s motion to strike. And, based on all 174 declarations, the court concluded plaintiff had not demonstrated a community of interests or a commonality of issues among putative class members. Plaintiff appealed those orders. The Court of Appeal found the record demonstrated the trial court in this case was unaware of the need to scrutinize 99 Cents’ declarations carefully, and was either unaware of or misunderstood the scope of its discretion to either strike or discount the weight to be given the 174 declarations, including the declarations of employees who were not members of the putative classes, if it concluded they were obtained under coercive or abusive circumstances. The orders denying plaintiff’s motion to strike 99 Cents’ declarations and class certification motion were reversed, and the matter remanded for reconsideration.

Bayramoglu v. Nationstar Mortgage LLC

Court: California Courts of Appeal

Docket: C084299(Third Appellate District)

Opinion Date: July 1, 2020

Judge: Cole Blease

Areas of Law: Civil Procedure, Real Estate & Property Law

Plaintiffs Sukru and Gulay Bayramoglu, like many others, sought to modify their home loan in the midst of the 2008 financial crisis. They eventually succeeded in doing so in late 2011, obtaining a lower interest rate and a lower monthly payment from their loan servicer, Nationstar Mortgage LLC (Nationstar). According to plaintiffs, Nationstar, among other things, unlawfully inserted an inflated loan balance, rather than their actual loan balance, in the loan modification agreement. And for that and other reasons, plaintiffs filed suit against Nationstar. The trial court rejected plaintiffs’ claims and granted Nationstar’s motion for summary judgment. According to the court, because plaintiffs had served “factually devoid” responses to Nationstar’s discovery, these responses tended to show that plaintiffs did not possess and could not reasonably obtain needed evidence to support most of their claims. And because, the court further found, plaintiffs never presented evidence to overcome this finding, it granted Nationstar’s motion. On appeal, plaintiffs contended the trial court wrongly found their discovery responses were factually devoid and, even if they were factually devoid, the court nonetheless should have found triable issues of fact precluded summary judgment. After review, the Court of Appeal agreed with the first part of plaintiffs' argument. The trial court found plaintiffs’ interrogatory responses were factually devoid because plaintiffs, rather than directly state responsive facts, told Nationstar that the answers to its interrogatories could be found in certain identified documents. "Although these responses may have been improper and warranted a motion to compel further responses, they were not the equivalent of factually devoid discovery responses." The trial court's decision was reversed to the extent it was grounded on that reasoning.

Eghtesad v. State Farm General Insurance Co.

Court: California Courts of Appeal

Docket: A147481(First Appellate District)

Opinion Date: June 29, 2020

Judge: Miller

Areas of Law: Civil Procedure, Insurance Law

Eghtesad’s pro se complaint claimed that he leased property to Martinez; State Farm issued Martinez a fire and liability insurance policy; Eghtesad was named on the policy as an additional insured; Eghtesad sought coverage for property damage; and State Farm told Eghtesad he was covered only for claims of slander. Eghtesad did not file an opposition to State Farm’s demurrer but asked for 60 days to try to settle and get counsel. The court continued the hearing. On the day his opposition was due, Eghtesad sought a further continuance of 90 days, informing the court that he had been involved in an auto accident. He attached a note from his doctor. The court granted Eghtesad “one final continuance” and set the hearing out for two additional weeks. Three days before the new hearing date, without having filed a response to the demurrer, Eghtesad sought another continuance, again providing a doctor’s note. The court did not grant a further continuance and sustained the demurrer without leave to amend. The court of appeal reversed, finding that Eghtesad should have been given an opportunity to amend his complaint. For an original complaint, regardless of whether the plaintiff has requested leave to amend, a trial court’s denial of leave to amend constitutes an abuse of discretion unless the complaint “shows on its face that it is incapable of amendment.”

Estes v. Eaton Corp.

Court: California Courts of Appeal

Docket: A152847(First Appellate District)

Opinion Date: June 29, 2020

Judge: Stewart

Areas of Law: Civil Procedure, Personal Injury, Products Liability

Estes worked as an electrician in two Bay Area naval shipyards and was exposed to asbestos-containing products manufactured or supplied to the Navy by approximately 50 companies. Later, he developed asbestos-related mesothelioma. In Estes’ personal injury lawsuit, a jury returned a defense verdict for an electrical component manufacturer, Eaton. The trial court granted Estes a new trial. The court of appeal reversed that order; the explanation of reasons for granting a new trial was not sufficient under Code of Civil Procedure section 657. The court overturned the verdict because “plaintiff presented sufficient evidence that he worked with arc chutes manufactured and supplied by [Eaton’s predecessor]; the arc chutes contained asbestos; asbestos fibers from the arc chutes were released during plaintiff’s work with them; and the levels of fibers released posed a hazard to plaintiff, and may have been a substantial factor in causing injury to him” whereas “[t]he evidence submitted by Eaton was not sufficient to rebut this evidence submitted by plaintiff.” This reasoning is little more than a conclusion that the plaintiff introduced sufficient evidence to prove that the arc chutes released hazardous levels of asbestos during Estes’s encounter with them in the workplace. The explanation is too vague to enable meaningful review. The court also rejected Estes’s substantial evidence challenge to the verdict exonerating Eaton of liability.

Hill RHF Housing Partners, LP v. City of Los Angeles

Court: California Courts of Appeal

Dockets: B295181(Second Appellate District) , B295315(Second Appellate District)

Opinion Date: June 29, 2020

Judge: Victoria Gerrard Chaney

Areas of Law: Civil Procedure, Real Estate & Property Law

Hill, Olive, and Mesa, appealed the trial court's denial of petitions for writ of mandate and related declaratory and injunctive relief challenging the City of Los Angeles's June 2017 establishment of the Downtown Center Business Improvement District (DCBID) and the San Pedro Historic Waterfront Business Improvement District (SPBID) (collectively, the BIDs). Because the Court of Appeal agreed with the City and the BIDs that Hill, Olive, and Mesa were required to exhaust administrative remedies before seeking judicial intervention and that they failed to do so, the court affirmed the trial court's judgments on that ground and declined to reach Hill, Olive, and Mesa's arguments on the merits.

MSY Trading Inc. v. Saleen Automotive, Inc.

Court: California Courts of Appeal

Docket: G057093(Fourth Appellate District)

Opinion Date: June 26, 2020

Judge: Raymond J. Ikola

Areas of Law: Business Law, Civil Procedure, Contracts

A "subtle" question concerning entitlement to attorney fees raised by this appeal was one of first impression for the Court of Appeal. In a separate lawsuit filed at Superior Court, plaintiffs obtained a judgment for breach of contract, including an award of attorney fees, against certain entities not parties to the present suit. Plaintiffs filed the present enforcement action against defendants, seeking to hold them liable on the judgment as alter egos of the judgment debtors. Plaintiffs lost against one of the defendants, Steve Saleen (Steve). Steve moved for attorney fees under the contract; the court granted the motion and plaintiffs appeals. Plaintiffs contended this was not an action on the contract and, therefore, fees were unavailable under Civil Code section 1717. Instead, it was an enforcement action. They cited caselaw for the proposition that a judgment on the contract subsumes and extinguishes contractual rights. On the other hand, had plaintiffs included Steve as a defendant in the Superior Court suit, making the exact same alter ego allegations they made to the Court of Appeal, undoubtedly Steve would have been entitled to contractual attorney fees under the doctrine of reciprocity established by Civil Code section 1717 and Reynolds Metals Co. v. Alperson, 25 Cal.3d 124 (1979), even though he was not a signatory on the contract. The Court of Appeal concluded the timing of an alter ego claim (either pre- or postjudgment) was too arbitrary a consideration on which to base the right to attorney fees. "When a judgment creditor attempts to add a party to a breach of contract judgment that includes a contractual fee award, the suit is essentially 'on the contract' for purposes of Civil Code section 1717." The Court therefore agreed with Steve and affirmed judgment.

Roche v. Hyde

Court: California Courts of Appeal

Docket: A150459(First Appellate District)

Opinion Date: July 1, 2020

Judge: Streeter

Areas of Law: Business Law, Civil Procedure

In 2006, Ram’s Gate purchased a Sonoma County winery from the Roches. Ram’s Gate later sued the Roches for breach of contract, fraud, and negligent nondisclosure, claiming they withheld seismic information about the property and made misstatements concerning the ability to build on an existing building pad. Protracted litigation ultimately ended with Ram’s Gate dismissing the action, Roche paying nothing to Ram’s Gate, and Ram’s Gate paying most but not all of Roche’s attorney fees. Roche then brought a malicious prosecution suit against Ram’s Gate, two of its members, and their attorney, Hyde, alleging they withheld documents in discovery that would have proved they knew or should have known the seismic information they claimed was kept from them when they bought the property from Roche. The defendants filed unsuccessful special motions to strike the complaint as a strategic lawsuit against public participation (anti-SLAPP motions). The court of appeal affirmed the denial of the motion under Code Civ. Proc., 425.16(b)(1). A cause of action for malicious prosecution fits by definition into the scope of the anti-SLAPP statute but Roche is likely to succeed on the merits and is now entitled to proceed to trial.

Wittenberg v. Bornstein

Court: California Courts of Appeal

Docket: A154994(First Appellate District)

Opinion Date: June 29, 2020

Judge: Fujisaki

Areas of Law: Civil Procedure

In 2016-2018 several actions and cross-actions were filed by substantially the same parties concerning a law partnership and other businesses Wittenberg filed one lawsuit, asserting individual and derivative causes of action against Daniel and others which related to claims previously brought by Daniel in a separately filed action. The trial court sustained Daniel’s demurrer to Wittenberg’s first amended complaint without leave to amend, finding it barred by the compulsory cross-complaint statute. (Code Civ. Procedure 426.10). The court of appeal affirmed. Wittenberg forfeited several legal arguments that she failed to present to the trial court below. The court rejected Wittenberg’s contention that an appellate court is required to consider all arguments challenging an order sustaining a demurrer based on the compulsory cross-complaint statute when such arguments purport to raise purely legal issues that are belatedly raised for the first time on appeal. The claims in Wittenberg’s first amended complaint below were barred on their face by the compulsory cross-complaint statute because they were logically related to Daniel’s cross-complaint in the previously filed action.

Bowden v. The Medical Center

Court: Supreme Court of Georgia

Dockets: S19G0494, S19G0496

Opinion Date: June 29, 2020

Judge: Harold D. Melton

Areas of Law: Civil Procedure, Class Action, Health Law

The Court of Appeals affirmed a superior court decision to certify a class action lawsuit against The Medical Center, Inc. ("TMC"). Class representatives were uninsured patients who received medical treatment from TMC and who claimed that TMC charged them unreasonable rates for their medical care, which rates TMC then used as a basis for filing hospital liens against any potential tort recovery by the patients. The Court of Appeals also ruled on the causes of action raised by the plaintiffs. The Georgia Supreme Court granted certiorari to answer three questions: (1) whether the Court of Appeals erred in its determination that class certification was proper; (2) whether the Court of Appeals erred in affirming the denial of summary judgment for TMC on common law claims of fraud and negligent misrepresentation; and (3) whether the Court of Appeals erred in reversing the denial of summary judgment to TMC on claims brought under the Georgia RICO Act. The Supreme Court concluded the Court of Appeals erred with regard to the first two questions, but not the third. Therefore, judgment was reversed in part, affirmed in part and remanded for further proceedings.

Reid v. Morris et al.

Court: Supreme Court of Georgia

Docket: S20A0107

Opinion Date: June 29, 2020

Judge: Boggs

Areas of Law: Civil Procedure, Personal Injury

In the Fall of 2016, Lakenin Morris was driving his older cousin Keith Stroud’s car when he collided with a car driven by 18-year-old Alonzo Reid, sending Reid to the hospital. Morris had been drinking with Stroud, and Stroud asked Morris to drive his car and gave him the keys even though Morris was obviously drunk and Stroud knew that Morris was drunk, did not have a valid driver’s license, and had a habit of recklessness. Morris later pled guilty to driving under the influence (DUI). Reid sued Morris for negligence and Stroud for negligent entrustment, and both were found liable for Reid’s injuries (Morris by default and Stroud by summary judgment). In a bench trial, the court awarded Reid more than $23,000 in compensatory damages, which the court apportioned equally between the two defendants, pursuant to the then-current version of the Georgia apportionment statute. The trial court also found that Morris and Stroud acted while under the influence of alcohol and further found, by clear and convincing evidence, that they acted in a manner that showed willful misconduct, malice, wantonness, and that “entire want of care which would raise the presumption of conscious indifference to consequences.” Reid challenged the amount of punitive damages he received. The Georgia Supreme Court found OCGA 51-12-5.1(f) did not categorically bar an award of punitive damages against Stroud, because the term “active tort-feasor,” as used in the statute, was not necessarily limited to drunk drivers. The trial court therefore erred in finding that it was categorically prohibited from considering whether Stroud was an “active tort-feasor” for purposes of analyzing the appropriateness of punitive damages under the facts of this case. Accordingly, the Supreme Court vacated in part the trial court’s judgment, and remanded the case for the trial court: (1) to determine whether Stroud was intoxicated to the degree that his judgment was substantially impaired and whether he was an “active tort-feasor” within the meaning of OCGA 51-12-5.1(f); and (2) if so, to set the amount of punitive damages to be awarded against Stroud.

Christopher W. James Trust v. Tacke

Court: Idaho Supreme Court - Civil

Docket: 47041

Opinion Date: July 1, 2020

Judge: Joel D. Horton

Areas of Law: Business Law, Civil Procedure, Contracts

This appeal arose from a contractual dispute between the Christopher W. James Trust (“the Trust”) and Idaho Mineral Springs, LLC, a water bottling company owned by Helmut Tacke. In 2000, Tacke built Idaho Mineral Springs’ bottling facility on approximately 10 acres of a 374 acre parcel he owned in Lemhi County, Idaho. He installed a high-density polyester pipeline running about eight-tenths of a mile from a spring on the property to the water-bottling plant. From 2000 to 2013, Tacke sold little to no bottled water. By March 2013, Tacke owed on two promissory notes secured by mortgages on the property. That same year, Tacke’s machinery malfunctioned and he needed to obtain new equipment. Tacke negotiated an agreement with Christopher James (“James”), who, with his wife, Debra, were trustees of the Trust and the Firstfruits Foundation (“Firstfruits”), a 501(c)(3) nonprofit foundation. The Agreement called for Firstfruits to pay off the outstanding loans on the property. In exchange, Tacke transferred title to 364 acres of the property, retaining the 10 acres of land where Idaho Mineral Springs’ operations were conducted. The Agreement further provided that the Trust would loan Idaho Mineral Springs $500,000 for two years with a 5% interest rate. Because James expected that the U.S. dollar would depreciate against the Australian dollar and precious metals, the Agreement called for the loan to be repaid in specified quantities of gold, silver and Australian dollars (“the commodity basket”). The Agreement also called for quarterly interest payments of 1.25% based upon the value of the commodity basket. Firstfruits entered into a joint venture with another nonprofit, Youth Employment Program, which sought to develop and manage the 364 acres. A conflict arose between the parties over Tacke’s waterline: Adams removed Tacke’s mainline and replaced it with a new PVC system. Adams reduced the flow to Idaho Mineral Springs from 91 gallons per minute (a discharge rate that Adams believed “could collapse the mainline”) to 30 gallons per minute. Tacke claimed that the new water system prohibited a direct flow of water from the spring to his plant and operated at a dramatically lower pressure than Tacke needed for Idaho Mineral Springs’ operations. Tacke appealed the district court’s ultimate judgment in favor of the Trust for $653,793.40. The Idaho Supreme Court reversed and remanded, finding that the awards of contract damages and prejudgment interest had to be vacated because the Trust failed to prove the value of the commodity basket. The matter was remanded for further proceedings.

Fell v. Fat Smitty's

Court: Idaho Supreme Court - Civil

Docket: 46993

Opinion Date: July 2, 2020

Judge: Moeller

Areas of Law: Business Law, Civil Procedure, Personal Injury

This case arose out of a stabbing that took place outside of an Idaho Falls bar. Steven and Audra Fell were patrons of the First Street Saloon, owned and operated by Fat Smitty’s L.L.C. (Fat Smitty’s). Towards the end of the evening, an altercation took place that resulted in Steven Fell being stabbed by another patron, LaDonna Hall. The Fells filed a complaint against Fat Smitty’s, alleging Fat Smitty’s breached its duty to: (1) warn the Fells, as invitees, of any hidden or concealed dangers in the bar; (2) keep the bar in a reasonably safe condition; and (3) protect the Fells from reasonably foreseeable injury at the hands of other patrons at the bar. The district court granted summary judgment in favor of Fat Smitty’s, ruling that the Fells’ claims were barred by Idaho’s Dram Shop Act because the Fells failed to give Fat Smitty’s timely notice of their claims. The Fells appealed the district court’s grant of summary judgment. Finding no reversible error, the Idaho Supreme Court affirmed.

Lorenzen v. Pearson

Court: Idaho Supreme Court - Civil

Docket: 46692

Opinion Date: July 2, 2020

Judge: Moeller

Areas of Law: Civil Procedure, Real Estate & Property Law

The Lorenzen Revocable Trust (“Lorenzen”) and David and Cynthia Pearson owned neighboring properties near Hayden Lake in Kootenai County, Idaho. The properties shared a common driveway. The properties were originally part of a 1,400 acre estate. Over the years, parcels were carved off the estate and frequently replatted. Two of those parcels included a cabin owned by Lorenzen and the “Red Barn” property owned by the Pearsons. The Pearsons purchased the Red Barn property in 2013 via quitclaim deed. Although the easement language was not in the Pearsons’ deed, the easements originally granted and reserved in a 1976 deed were recorded with the county and listed as exceptions from coverage in Pearsons’ title insurance policy. From 2013 onward, disputes over the shared driveway began. The disputes culminated in 2016 when Pearsons installed an electronic gate to control access to the shared driveway. In October 2016, Phyllis Lorenzen filed a complaint seeking a declaratory judgment to define the rights concerning the parties’ easement and access rights, as well as listing other causes of action. Four days later, Lorenzen filed a motion for a preliminary injunction against Pearsons, seeking to enjoin them “from blocking or otherwise interfering with access” via the shared driveway. The district court granted the motion for a preliminary injunction, ordering Pearsons to provide an access code or remote control to the gate and restraining both parties “from blocking or otherwise interfering with access” to their respective properties via the shared driveway. The next month, Phyllis Lorenzen passed away. Pearsons later filed an answer and counterclaim, arguing that Phyllis Lorenzen’s death “ended the express easement” from the 1976 quitclaim deed. They also filed a motion to dissolve the court’s prior preliminary injunction. The district court denied Pearsons’ motions, and the case proceeded to trial with the injunction remaining in effect. In 2018 following a jury trial, the district court issued a decision finding that the easement language in the quitclaim deeds was ambiguous; both parties had express easements granted to them as well as their heirs, successors and assigns. The district court then denied Pearsons’ motion to reconsider from the bench. Pearsons argued on appeal that the district court erred in establishing a legal description of the easement from the Plaintiff’s land survey. They argued this matter required another hearing to present evidence to establish an accurate metes-and-bounds description. The Idaho Supreme Court affirmed, finding Pearsons failed to provide an alternative metes-and-bounds survey for the district court to consider despite having had months to do so. "Only after their counsel was repeatedly unavailable to the court when it tried to request information or schedule such a hearing, did the district court accept and utilize the only legal description admitted as evidence. Pearsons cannot complain over the results of their inaction now, especially when they failed to object to the admittance of the land survey as evidence at trial."

State ex rel. Universal Credit Acceptance, Inc. v. Honorable Reno

Court: Supreme Court of Missouri

Docket: SC97872

Opinion Date: June 30, 2020

Judge: Mary R. Russell

Areas of Law: Civil Procedure, Consumer Law

The Supreme Court made permanent its preliminary writ of mandamus compelling the circuit court to transfer the underlying lawsuit to St. Charles County, holding that the circuit court had no authority to change venue and transfer the case from St. Charles County to St. Louis County. Universal Credit Acceptance, Inc. (UCA) filed the underlying lawsuit in St. Charles County seeking to recover a judgment arising from Renwick Ware's alleged default on a retail sales installment contract. After the associate circuit division sustained Ware's application for change of judge, Ware filed a motion to change the venue to St. Louis County. The circuit court sustained the motion and transferred the case to St. Louis County. UCA filed a petition for a writ of mandamus, arguing that, pursuant to Rule 51.06(a), Ware waived the right to file a motion to change venue because the motion was not consolidated with his application for change of judge. The Supreme Court issued a preliminary writ that it made permanent, holding that Ware's motion to change venue was improper under Rule 51.06(a), and therefore, UCA demonstrated a clear and unequivocal right to have the case retransferred to St. Charles County.

Avery v. Boysen

Court: North Dakota Supreme Court

Citation: 2020 ND 131

Opinion Date: June 29, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure

Troy Boysen appealed a district court order denying his motions for reconsideration and for a new trial. In February 2019, Amy Avery petitioned the district court for a disorderly conduct restraining order against Boysen. The court entered a temporary disorderly conduct restraining order on February 12, 2019. After the court granted Boysen a continuance, a hearing on the petition was scheduled for March 8, 2019, in the Williams County courthouse. According to his affidavit, Boysen claims that while traveling from South Dakota to the March 8 hearing in Williams County, his vehicle got a flat tire. He alleges that he called the courthouse and informed the clerk of court he had a flat tire and would still try to make it to the hearing. Boysen further alleges that he was transferred to the court reporter and was told he would be given time to arrive and mount a defense. From the hearing transcript, the district court acknowledged that Boysen had called and was running late, but the court proceeded with the hearing without Boysen present, fifteen minutes after the originally scheduled time. The court stated on the record that the matter had been continued from the previous month, that Boysen was 30 miles from town and had a flat tire, and that Boysen was told the case “would go second.” The court further stated, however, that although another case had been set, the parties in that case did not show up, and the court was “not going to wait for [Boysen].” The district court held a short hearing on March 8, 2019, and subsequently entered a disorderly conduct restraining order barring Boysen from contact with or coming within 50 feet of Avery for six months, expiring August 12, 2019. According to his affidavit, Boysen arrived just in time to see the court proceedings had concluded. After review of the district court proceedings, the North Dakota Supreme Court affirmed, concluding Boysen failed to establish the district court abused its discretion in denying his motions.

Brown v. Brown

Court: North Dakota Supreme Court

Citation: 2020 ND 135

Opinion Date: June 29, 2020

Judge: Jerod E. Tufte

Areas of Law: Civil Procedure, Constitutional Law, Family Law

Nathanael Brown appealed the issuance of a domestic violence protection order which enjoined him from having contact with Flavia Brown and restricted his right to possess firearms. In late September 2019, Flavia Brown petitioned the district court for a protection order against Nathanael. The court issued a temporary protection order and an order for hearing procedure which set a hearing for October 9, 2019. The order for hearing procedure stated evidence would be taken by affidavit only and a party seeking to cross-examine an affiant must notify the opposing party at least twenty-four hours before the hearing. On the day before the hearing, Nathanael Brown filed notice of appearance and a request to continue the hearing. On the day of the hearing, he filed notice of cross-examination. At the time scheduled for the hearing, the district court denied Nathanael's requests for continuance and cross-examination because they were untimely under the order for hearing procedure. At the outset of the hearing, Nathanael objected to the district court’s affidavit procedure, arguing that it would deny him due process and a “full hearing” under N.D.C.C. 14-07.1-02. The district court denied Nathanael permission to cross-examine Flavia about her affidavit or to present any of his own evidence. The court accepted Flavia's affidavit and granted the domestic violence protection order preventing Nathanael from having contact with Flavia Brown for two years. Because the North Dakota Supreme Court concluded Nathanael was denied a full hearing under N.D.C.C. 14-07.1-02(4), the protection order was reversed and the matter remanded for a full hearing.

Franciere v. City of Mandan

Court: North Dakota Supreme Court

Citation: 2020 ND 143

Opinion Date: June 29, 2020

Judge: Daniel J. Crothers

Areas of Law: Animal / Dog Law, Civil Procedure, Constitutional Law, Government & Administrative Law, Personal Injury

Susan Franciere appealed a district court judgment granting the City of Mandan’s motion to dismiss for lack of personal jurisdiction due to insufficient service. In 2017, Franciere and her dog were attacked by a dog in Mandan. Days later, she went to the Mandan Police Department, asserted her rights under Article I, section 25 of the North Dakota Constitution, and requested a copy of the police report on the incident under the open records law. Franciere called the police department and was informed the dog was undergoing a 10-day rabies quarantine. Thereafter, Franciere sent a letter to the chief of police requesting the police report. On August 22, 2017, she received a phone call from a police lieutenant who told her she would not receive the report because the case was still active and no information would be released until the case was closed. In September 2017, she contacted the city attorney about the incident. Then in October, Franciere filed this action against the City, alleging violations of the North Dakota Constitution and the open records law. Franciere received a redacted report of the incident from the police department on November 1, 2017. On January 13, 2018, she received an unredacted report from the police department. On November 14, 2018, Franciere filed a motion for summary judgment. The district court declared Franciere’s action moot and dismissed it with prejudice. It declined to rule on Mandan’s motion to dismiss for insufficient service of process and lack of personal jurisdiction. The North Dakota Supreme Court vacated the district court’s judgment and remanded for determination of Mandan’s motion to dismiss for insufficiency of service of process and lack of personal jurisdiction. Upon reconsideration, the district court granted the City's motion to dismiss with prejudice. Franciere argued Mandan waived its personal jurisdiction claims, the district court improperly dismissed the case with prejudice, the district court erred when it denied her motion to compel discovery, and the district court judge was biased against her. The Supreme Court modified the judgment for dismissal without prejudice, and affirmed as modified.

Lavallie v. Jay, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 147

Opinion Date: June 29, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure, Native American Law, Personal Injury

Lawrence Lavallie brought this personal injury action against Lorne Jay and Michael Charette after the parties were involved in a motor vehicle accident. The accident occurred on the night of December 26, 2016, on County Road 43 in Rolette County, North Dakota. Lavallie was driving a snowmobile on the roadway followed by Charette who was driving a GMC Yukon automobile. It was dark with blowing snow and poor visibility. Jay was operating a tractor, and in the process of blowing snow from his driveway. When Lavallie came upon Jay operating the tractor, the tractor was located in the middle of the roadway and did not have any lights or reflectors. Concerned that Charette would not be able to see the tractor in the roadway because it was dark and snowing and because the tractor did not have any lights or reflectors, Lavallie stopped the snowmobile alongside the tractor and tried to get Jay’s attention for him to move the tractor off of the road. While Lavallie was on the parked snowmobile trying to get Jay’s attention, Charette struck the snowmobile. First responders transported Lavallie to the Rolla hospital. Lavallie was transferred to Grand Forks where part of his leg was amputated. Jay appealed when the district court judgment ordered him to pay Lavallie $946,421.76, arguing the district court erred in denying his motion to dismiss for lack of subject matter jurisdiction. Jay conceded the district court was correct in finding the accident involving the parties in this case occurred outside the external boundaries of the Turtle Mountain Reservation. The North Dakota Supreme Court found the evidence in the record indicated the accident occurred on a county road located on land held in trust for the Tribe. "The question becomes whether district courts maintain subject matter jurisdiction over claims involving conduct between enrolled members of a tribe occurring on county roads located on Indian trust land." The Supreme Court found the district court did not determine whether the accident occurred on land held in trust for the Tribe. The district court also did not determine whether the parties to this action were enrolled members of the Tribe. Without such findings, the Supreme Court was unable to adequately consider whether the district court had subject matter jurisdiction to adjudicate Lavallie’s claims. Therefore, judgment was reversed and the matter remanded for further proceedings.

Nat'l Parks Conservation Assn., et al. v. ND Dept. of Env. Quality, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 145

Opinion Date: June 29, 2020

Judge: Jon J. Jensen

Areas of Law: Civil Procedure, Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law

National Parks Conservation Association (“NPCA”) appealed a judgment affirming a final permit decision by the North Dakota Department of Environmental Quality, formerly the Department of Health Environmental Health Section, to issue Meridian Energy Group, Inc. an air quality permit to construct a refinery. In October 2016, Meridian submitted its initial application and supporting documentation to the Department for a permit to construct the Davis Refinery, as required under North Dakota’s air pollution control rules implementing the federal Clean Air Act. The Department received over 10,000 comments, with most of the substantive comments coming from NPCA, the National Park Service, and the Environmental Protection Agency. NPCA filed comments with the Department supported by its two experts’ opinions, asserting that Meridian’s oil refinery would be a “major source,” rather than a “minor source,” of air pollution and that the permit does not contain “practically enforceable” emissions limits under the federal Clean Air Act and North Dakota’s air pollution control rules implementing the Clean Air Act. After considering public comments and Meridian’s responses, the Department’s Air Quality Division recommended to the State Health Officer that the Department issue a final permit because the Davis Refinery’s emissions are expected to comply with the applicable North Dakota air pollution control rules. The North Dakota Supreme Court concluded the Department did not act arbitrarily, capriciously, or unreasonably in issuing the permit.

Zundel v. Zundel, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 150

Opinion Date: June 29, 2020

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Trusts & Estates

Stephen Zundel sued his brothers, Loren and Richard Zundel, seeking possession of personal property subject to a May 2013 bill of transfer. Loren and Richard Zundel believed the property was part of their father's, Edwin Zundel’s estate. Loren served as personal representative of the estate and answered the complaint, denying Stephen's allegations. Loren sought declaratory judgment claiming the bill of transfer was invalid because Stephen obtained Edwin Zundel’s signature through undue influence and the document was falsely notarized by Stephen who was not a notary public. Stephen appealed when the district court found the bill of transfer was void as a result of Stephen's undue influence over his father, and that the bill of transfer was not validly accepted because it was not signed by a notary. Finding no reversible error, the North Dakota Supreme affirmed the district court's judgment.

Pulito v. Board of Nursing

Court: Oregon Supreme Court

Docket: S066569

Opinion Date: July 2, 2020

Judge: Nelson

Areas of Law: Civil Procedure, Government & Administrative Law, Professional Malpractice & Ethics

The issue this case presented for the Oregon Supreme Court's review centered on a final order of the Oregon State Board of Nursing (the board) and the meaning of the term “time limitations” in ORS 183.645(1). That statute required the chief administrative law judge (ALJ) to assign a different ALJ to a contested case on written request from a party, subject to applicable “time limitations” that the chief ALJ has established by rule for submitting such requests. The chief ALJ established OAR 471-060-0005, under which the chief ALJ evaluated the timeliness of a request by determining whether a party had a “reasonable opportunity” to make an earlier request. Licensee Rebecca Pulito challenged a preliminary decision of the chief ALJ that denied her request for a different ALJ. In that decision, the chief ALJ determined that licensee had failed to take advantage of a “reasonable opportunity” to make an earlier request. The contested case proceeded on the merits, and the board issued a final order revoking licensee’s nursing license. The Court of Appeals affirmed without opinion. Licensee then petitioned the Oregon Supreme court for review. Licensee argued OAR 471-060-0005 was invalid because it did not impose a “time limitation” as authorized by ORS 183.645(1). Alternatively, she contended the chief ALJ erred in applying OAR 471-060-0005 because her request for a different ALJ was made within a reasonable time. The Supreme Court concluded OAR 471-060-0005 was invalid as written and that the error in denying licensee’s request for a different ALJ required reversal. Because that ruling was dispositive, the Supreme Court did not reach licensee’s alternative argument that the chief ALJ erred in applying the rule. The final order was reversed and the matter remanded for a new hearing.

Bonsmara Natural Beef Co. v. Hart of Texas Cattle Feeders, LLC

Court: Supreme Court of Texas

Docket: 19-0263

Opinion Date: June 26, 2020

Judge: Busby

Areas of Law: Arbitration & Mediation, Civil Procedure, Contracts

In this cattle-feeding dispute, the Supreme Court affirmed the judgment of the court of appeals overturning the trial court's denial of Appellees' post-judgment motion to compel arbitration, holding that a party does not forfeit its right to challenge a ruling on appeal from a final judgment simply by choosing not to pursue an interlocutory appeal of that ruling. Appellants brought this action alleging fraud, unjust enrichment, and other claims. Appellees moved to dismiss the suit and compel arbitration, arguing that the claims were subject to the agreement's arbitration clause. The trial court denied the motion, and Appellees did not challenge the court's ruling through an interlocutory appeal. After the trial court rendered judgment Appellees appealed, arguing that the trial court erred when it denied their motion to compel arbitration. The court of appeals reversed and remanded with instructions that the trial court order the parties to arbitration. The Supreme Court affirmed, holding (1) the court of appeals had jurisdiction to consider the trial court's denial of Appellees' motion to compel arbitration; and (2) on the merits, the court of appeals did not err in ordering arbitration.

Confederated Tribes & Bands of the Yakama Nation v. Yakima County

Court: Washington Supreme Court

Docket: 97910-3

Opinion Date: July 2, 2020

Judge: Barbara Madsen

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law, Native American Law, Zoning, Planning & Land Use

Granite Northwest sought to expand its mining operations in Yakima County, Washington. The Confederated Tribes and Bands of the Yakama Nation (Yakama) opposed the expansion, arguing it would disturb ancient burial grounds and a dedicated historical cemetery. Despite these objections, Yakima County issued a conditional use permit and a State Environmental Policy Act (SEPA), ch. 43.21C RCW, mitigated determination of nonsignificance to Granite Northwest. Yakama challenged both in superior court. The court later stayed the SEPA challenge while Yakama exhausted its administrative appeal of the conditional use permit as required by the Yakima county code. In Yakama’s administrative appeal, the hearing officer modified the conditional use permit to require a separate permit from the Washington State Department of Archaeology and Historic Preservation but affirmed Yakima County’s issuance of the permit. Yakama appealed the hearing examiner’s decision to the county board of commissioners. On April 10, 2018, at a public meeting where Yakama representatives were present, the board passed a resolution affirming the hearing officer’s decision and denying Yakama’s appeal. Three days later, a county planner sent an e-mail and letter to Yakama with the resolution attached. The letter noted the county code required written notification of the decision and stated that the administrative appeal had been exhausted. On May 2, 2018, 22 days after the resolution was adopted and 19 days after the county planner’s letter, Yakama filed a new petition in superior court. Yakima County and Granite Northwest (collectively, Granite NW) moved to dismiss the second petition as untimely under RCW 36.70C.040(4)(b) because the 21-day filing period began on the date the board of commissioners passed its resolution and Yakama’s petition was 1 day late. Granite NW also moved to dismiss the previously stayed petition, arguing the stay was conditional on Yakama timely filing its administrative appeal. Yakama responded that RCW 36.70C.040(4)(b) was inapplicable and instead RCW 36.70C.040(4)(a) governed the filing period, which began when the county planner transmitted the written resolution to Yakama. The superior court agreed with Yakama, finding Yakama’s land use petition was timely filed, and accordingly, did not dismiss Yakama’s earlier petition. The Court of Appeals reversed in an unpublished decision, concluding the later petition was not timely and did not address the previously stayed petition. After review, the Washington Supreme Court concluded Yakama's petition was timely filed. The Court of Appeals was reversed.

Magney v. Pham

Court: Washington Supreme Court

Docket: 96669-9

Opinion Date: July 2, 2020

Judge: Charles Wiggins

Areas of Law: Civil Procedure, Medical Malpractice

The issue this case presented for the Washington Supreme Court's review centered on whether petitioners-parents waived the marital counseling privilege when they filed a claim for damages against the doctors who treated their infant son on the ground that the child was misdiagnosed with cancer. Prior to the alleged misdiagnosis, Brian and Emily Magney had engaged in and completed marital counseling. Defendant doctors sought discovery of the records, but the Magneys filed a motion for a protection order to prevent disclosure given that the records were privileged. The superior court denied the motion and ordered disclosure. analogizing the marital counseling privilege to the psychologist-client privilege, which the Court of Appeals has held is automatically waived when emotional distress is at issue. The Supreme Court reversed the superior court, holding the Magneys did not automatically waive privilege because filing a lawsuit is not one of the enumerated exceptions under the "marital counseling" privilege statute. The Court could not determine on the record whether the privilege was impliedly waived by the actions of the Magneys at this point in litigation. The matter was remanded to the superior court for an in camera review of the records and evidence the parties submitted to determine whether the privilege was impliedly waived.