Justia Civil Procedure Opinion Summaries

Respondent Gregory Bombardier was a professional engineer licensed by the State of Vermont. He challenged the Board of Professional Engineering’s decision, affirmed by an administrative officer from the Office of Professional Regulation (OPR), that he engaged in unprofessional conduct. In 2014, respondent was hired by an insurance adjuster on behalf of an insurance company to investigate a claim filed by Rand Larson against Atlas Plumbing & Heating, LLC. Larson alleged that Atlas had notched a support beam while installing radiant heating in his home, causing his floor to buckle. Respondent inspected Larson’s home. Following respondent’s inspection, Larson hired another engineer, James Baker, to investigate the cause of the floor settlement. After receiving Baker’s report, Larson contacted respondent seeking a reinspection; respondent did not respond. The insurance company provided respondent with a copy of the Baker report, asking whether there was anything in it that would cause respondent to reinspect the property or question his own opinion. Respondent saw nothing in the Baker report that caused him to question his own opinion. In August 2014, the insurer denied Larson’s claim. Larson then filed a professional complaint against respondent. The Board agreed with respondent that there was no new information in the Baker report that would cause respondent to question his own opinion. The Board did discipline respondent, however, based on the investigation that he undertook to determine the cause of the floor buckling at the Larson home. “Had respondent undertaken only to rule out the work done by Atlas Heating and Plumbing as the cause of the damage, this would be a different case. Respondent agreed to a much broader undertaking, however, than ruling out a specific cause.” The Vermont Supreme Court determined that the question of whether a professional engineer has engaged in unprofessional conduct did not turn on whether a client was upset or had filed a complaint. “The fact that a professional engineer may properly limit the scope of his or her work and that a client is satisfied with that work are separate considerations from whether there has been compliance with applicable professional standards in performing the particular work that the professional engineer has agreed to undertake. Similarly, the fact that one might sue a professional engineer for damages in superior court does not obviate the engineer’s independent duty to avoid unprofessional conduct nor does it deprive the Board of its statutory authority to address such conduct.” Having undertaken to investigate and determine the cause of the damage, respondent was required by his professional licensure to competently perform the services he agreed to render. The Supreme Court determined that the Board’s findings supported its conclusion that respondent did not meet the essential standards of acceptable and prevailing practice in carrying out the service that his client retained him to perform. View "In re Gregory J. Bombardier" on Justia Law

Respondent Gregory Bombardier was a professional engineer licensed by the State of Vermont. He challenged the Board of Professional Engineering’s decision, affirmed by an administrative officer from the Office of Professional Regulation (OPR), that he engaged in unprofessional conduct. In 2014, respondent was hired by an insurance adjuster on behalf of an insurance company to investigate a claim filed by Rand Larson against Atlas Plumbing & Heating, LLC. Larson alleged that Atlas had notched a support beam while installing radiant heating in his home, causing his floor to buckle. Respondent inspected Larson’s home. Following respondent’s inspection, Larson hired another engineer, James Baker, to investigate the cause of the floor settlement. After receiving Baker’s report, Larson contacted respondent seeking a reinspection; respondent did not respond. The insurance company provided respondent with a copy of the Baker report, asking whether there was anything in it that would cause respondent to reinspect the property or question his own opinion. Respondent saw nothing in the Baker report that caused him to question his own opinion. In August 2014, the insurer denied Larson’s claim. Larson then filed a professional complaint against respondent. The Board agreed with respondent that there was no new information in the Baker report that would cause respondent to question his own opinion. The Board did discipline respondent, however, based on the investigation that he undertook to determine the cause of the floor buckling at the Larson home. “Had respondent undertaken only to rule out the work done by Atlas Heating and Plumbing as the cause of the damage, this would be a different case. Respondent agreed to a much broader undertaking, however, than ruling out a specific cause.” The Vermont Supreme Court determined that the question of whether a professional engineer has engaged in unprofessional conduct did not turn on whether a client was upset or had filed a complaint. “The fact that a professional engineer may properly limit the scope of his or her work and that a client is satisfied with that work are separate considerations from whether there has been compliance with applicable professional standards in performing the particular work that the professional engineer has agreed to undertake. Similarly, the fact that one might sue a professional engineer for damages in superior court does not obviate the engineer’s independent duty to avoid unprofessional conduct nor does it deprive the Board of its statutory authority to address such conduct.” Having undertaken to investigate and determine the cause of the damage, respondent was required by his professional licensure to competently perform the services he agreed to render. The Supreme Court determined that the Board’s findings supported its conclusion that respondent did not meet the essential standards of acceptable and prevailing practice in carrying out the service that his client retained him to perform. View "In re Gregory J. Bombardier" on Justia Law

Ariz. Rev. Stat. 16-957(B)’s fourteen-day time limit for an appeal of a Citizens Clean Elections Commission penalty decision applies when the appellant challenges the Commission’s personal and subject-matter jurisdiction.The Commission in this case found probable cause to believe that Legacy Foundation Action Fund violated the Citizens Clean Elections Act, Ariz. Rev. Stat. 16-940 to -961 and thus assessed a civil penalty. Eighteen days after the Commission’s final decision, Legacy filed an appeal in the superior court. The superior court dismissed the appeal because it was not filed within fourteen days of a final Commission penalty decision as required by section 16-957(B). The Supreme Court affirmed, holding that the superior court correctly dismissed the appeal. View "Legacy Foundation Action Fund v. Citizens Clean Elections Commission" on Justia Law

This civil rights class action lawsuit was filed thirty years ago to challenge various aspects of the institutionalization of developmentally disabled individuals at two state-supported facilities in New Mexico. After a lengthy trial in 1990, the district court ruled that Defendants (the two institutions and the individuals charged with their operation) were violating class members’ federal constitutional and statutory rights. The district court ordered the parties to develop a plan to cure the violations, and the plan was implemented over the ensuing years through several consent decrees and other court-approved agreements. Although the two institutions closed in the 1990s, the district court has continued to monitor whether Defendants complied with the obligations mandated by the consent decrees. In the years since the court’s initial ruling, the parties have agreed to, and the court has approved, numerous additional decree obligations of varying specificity with which Defendants must comply before the court will discontinue its oversight. As of the district court’s most recent order, Defendants had yet to fulfill over 300 decree obligations. In August 2015, Defendants moved under Federal Rule of Civil Procedure 60(b)(5) to vacate all consent decrees and to terminate the court’s oversight, arguing that changed factual circumstances warrant the requested relief. The district court denied the motion in June 2016. Defendants appealed. The Tenth Circuit vacated the 2016 Order and remanded the matter for the district court to decide whether Defendants were currently violating class members’ federal constitutional or statutory rights, and to reassess the equity of continuing federal oversight with the benefit of that determination. View "Jackson v. Los Lunas Community Program" on Justia Law

Land Partners, LLC, and Los Alisos Ranch Company (collectively, Land Partners) appealed a postjudgment order denying their motion for attorney fees brought pursuant to Revenue and Taxation Code section 5152. Although the court had found the County of Orange Assessor (Assessor) used a constitutionally invalid methodology in valuing Land Partners’ property for property tax purposes, the court determined there was no evidence the Assessor’s actions were due to his subjective belief that a certain constitutional provision, statute, rule or regulation was invalid or unconstitutional. Because the court concluded proof of the latter was a statutory prerequisite to recovery of fees under the statute, it held Land Partners was not entitled to attorney fees. Land Partners argued on appeal the court erred in interpreting section 5152. It argued proof of the Assessor’s subjective mindset was not required; instead showing a violation of well-established and unambiguous law was sufficient for recovery of attorney fees. The Court of Appeal disagreed with Land Partners’ premise and affirmed the order. View "Land Partners, LLC v. County of Orange" on Justia Law

Trent Guthmiller appealed a district court judgment affirming a North Dakota Department of Transportation ("DOT") decision to disqualify his commercial driving privileges for 60 days. In October 2016, the DOT notified Guthmiller that his commercial driving privileges were disqualified because he had committed two serious traffic violations within the last three years. Guthmiller committed the violations of speeding and aggravated reckless driving. The violations occurred within three years, but the convictions were approximately three years and ten months apart. At the administrative hearing on his commercial driving disqualification, Guthmiller did not contest the commission of the violations. On appeal to the North Dakota Supreme Court, Guthmiller argued the district court's order was not in accordance with the law. The Supreme Court reversed the district court's judgment and reinstated Guthmiller's commercial driving privileges: the statute unambiguously required two convictions within three years. View "Guthmiller v. N.D. Dep't of Transportation" on Justia Law

Michele Brandt, as Trustee of the Michele L. Brandt Revocable Trust, appealed an order dismissing her appeal of the City of Fargo's resolution of necessity. Karen Wieland appealed a judgment dismissing her appeal to the district court from the City's resolution of necessity. In December 2016, the Fargo City Commission passed a resolution of necessity for property owned by Brandt related to construction of a flood protection project. Days later in a separate proceeding, the City passed a similar resolution of necessity for property owned by Wieland. Each resolution authorized the City to proceed with all legal means to obtain the property, including eminent domain. In each case the City filed a record on appeal in the district court and moved the court to dismiss the appeal. In Brandt's appeal, the City moved alternatively to consolidate Brandt's appeal with an eminent domain proceeding that the City also commenced in December 2016. In both appeals, Brandt and Wieland moved the district court to strike all materials from the record that had not specifically been placed in front of the city commission during the respective December 2016 meetings. After a February 22, 2017 hearing in Brandt's appeal, the district court entered an order granting the City's motion to dismiss and holding a resolution of necessity as a predicate to eminent domain is not subject to appellate review by the court. The court also held the City had not acted in bad faith, with a gross abuse of discretion, or fraudulently in passing the resolution of necessity. The order denied Brandt's motion to strike, concluding further consideration of the motion was moot. After a March 21, 2017 hearing in Wieland's appeal before a different judge, the district court entered an order and judgment dismissing Wieland's appeal. The court explained that the decision to go forward with an eminent domain proceeding is the City's political or legislative decision which the court could not review by appeal from issuance of the resolution. The City commenced an eminent domain proceeding for the Wieland property in April 2017. Because of similar dispositions, the North Dakota Supreme Court addressed both appeals in this decision and affirmed, concluding the court in each case did not err in dismissing the appeals because no statutory basis authorized an appeal to the district court from the City's resolutions of necessity. View "Brandt v. City of Fargo" on Justia Law

Petitioner Jane Norton sued Rocky Mountain Planned Parenthood, Inc. (“RMPP”), Governor John W. Hickenlooper, the Executive Director of the Colorado Department of Health Care Policy and Financing, and the Executive Director of the Colorado Department of Public Health and Environment (“CDPHE”), for violating section 50 of the Colorado Constitution. Prior to filing this suit as a private citizen, Norton had served as Executive Director of CDPHE. In 2001, while serving in that role, Norton hired an accounting firm to determine whether RMPP was “separately incorporated, maintain[ed] separate facilities, and maintain[ed] financial records which demonstrate[d] financial independence” from Planned Parenthood of the Rocky Mountains Services Corporation (“Services Corp.”), an organization that offered abortion services. The accounting firm determined that RMPP was “subsidizing the rent for Services Corp., an affiliate that performs abortions.” From this information, Norton concluded that whenever CDPHE provided funding to RMPP, it was violating section 50. As a result, Norton terminated the State’s contractual relationship with RMPP and ceased all taxpayer funding of that organization. In 2009, after Norton had left CDPHE, the State resumed making payments to RMPP, prompting Norton to file this lawsuit in which she sought declaratory and injunctive relief against the State officials and pursued a claim of unjust enrichment against RMPP. The issue this case presented for the Colorado Supreme Court’s review centered on whether a complaint alleging a violation of article V, section 50 of the Colorado Constitution based solely on a theory of subsidization states a claim for relief sufficient to overcome a motion to dismiss pursuant to C.R.C.P. 12(b)(5). The Supreme Court held that it did not; instead, to state a claim for relief under section 50, a complaint must allege that the State made a payment to a person or entity - whether directly to that person or entity, or indirectly through an intermediary - for the purpose of compensating them for performing an abortion and that such an abortion was actually performed. View "Norton v. Rocky Mountain Planned Parenthood, Inc." on Justia Law

The Clean Water Act, 33 U.S.C. 1362, prohibits “any addition of any pollutant to navigable waters,” defined as “the waters of the United States.” Section 1311(a) contains exceptions, including permitting schemes under the EPA's National Pollutant Discharge Elimination System (NPDES) program and an Army Corps of Engineers program, which encompass the “waters of the United States.” The EPA and the Corps proffered the “Waters of the United States (WOTUS) Rule,” which “imposes no enforceable duty on any state, local, or tribal governments, or the private sector,” 80 Fed. Reg. 37102 and “does not establish any regulatory requirements.” Objectors challenged the Rule in district courts. Many filed “protective” petitions in Circuit Courts to preserve their challenges should their district court lawsuits be dismissed for lack of jurisdiction under 33 U.S.C. 1369(b), which enumerates EPA actions for which review lies directly and exclusively in the federal courts of appeals. Such actions include EPA actions “approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345,” and EPA actions “issuing or denying any permit under section 1342.” The Sixth Circuit denied motions to dismiss consolidated actions. The Supreme Court reversed. The Rule falls outside section 1369(b)(1), so challenges must be filed in district courts. It is not an “effluent limitation,” “on quantities, rates, and concentrations” of pollutants, nor is it an “other limitation under section 1311; it simply announces a regulatory definition. The Rule was promulgated under section 1361(a), which grants the EPA general rulemaking authority. The Rule neither issues nor denies NPDES permits under section 1342. View "National Association of Manufacturers. v. Department of Defense" on Justia Law

The employer, Allegheny County, was ordered to pay $14,750.00 in attorney’s fees under Section 440 of the Pennsylvania Workers’ Compensation Act after the Workers’ Compensation Appeal Board (“WCAB”) determined that the County unreasonably contested its liability under the Act. Though the County sought supersedeas of that order, arguing that the finding of liability was in error, supersedeas was denied. Thus, the County complied with the order and paid the awarded fee to the employee’s counsel. Upon reaching the merits of the County’s appeal, however, the Commonwealth Court reversed, concluding that the County not only had a reasonable basis for its contest, but a prevailing one, and that the employee was no longer entitled to workers’ compensation benefits. Thereafter, the County filed a separate petition before a Workers’ Compensation Judge (“WCJ”) in which it sought reimbursement of the erroneously awarded attorney’s fees from the employee’s counsel. The Pennsylvania Supreme Court granted allowance of appeal in this matter to consider whether a court could order an employee’s attorney to disgorge erroneously awarded, but already paid, unreasonable contest attorney’s fees pursuant to Section 440, when the substantive basis for the award was later overturned on appeal. The Supreme Court found that the General Assembly, in enacting the Workers’ Compensation Act, did not provide any mechanism by which employers could recoup erroneously awarded counsel fees, once paid. The General Assembly contemplated that when a merits appeal is undertaken, a court may grant supersedeas of an order awarding attorney’s fees. Because such a supersedeas was requested and denied in this case, the Court held that the County may not recoup the already paid attorney’s fees from the employee’s counsel. The Court vacated the Commonwealth Court’s order and reinstated the order of the WCAB, which affirmed the denial of the County’s reimbursement petition. View "County of Allegheny v. WCAB (Parker)" on Justia Law