Justia Civil Procedure Opinion Summaries

Koch Construction, Inc.; Marilyn Koch, Personal Representative of the Estate of Michael P. Koch; and Koch Property Investments, Inc. (collectively “appellants”) appealed the judgment and amended judgment entered in favor of Toman Engineering Company (“Toman”). Michael Koch owned and operated Koch Construction and Koch Property Investments (“KPI”). Toman provided engineering services to Koch Construction on various projects, including designing a stormwater management system for the Koch Meadow Hills residential development project in Dickinson, North Dakota. Michael died in August 2017. The stormwater management system included a detention pond referred to as the Marilyn Way Stormwater Pond, which was the detention pond at issue in this case. In 2016, Janet Prchal, Dean Kubas, and Geraldine Kubas, owners of property near the Koch Meadow Hills development, sued the City of Dickinson and KPI for damages, alleging the development of Koch Meadow Hills caused water to drain and collect on their properties. The Prchal lawsuit was settled in September 2018, and the settlement required modifications to be made to the Marilyn Way Stormwater Pond before June 30, 2019. The reconstruction work on the detention pond occurred during the summer and fall of 2019. Toman served a summons and complaint on Koch Construction and Marilyn Koch, to collect unpaid amounts for engineering services Toman provided to the defendants in 2017. Toman filed the complaint in the district court in June 2019. The appellants argued the district court erred in deciding they committed intentional spoliation of evidence and dismissing their counterclaim as a sanction. After review of the district court record, the North Dakota Supreme Court concluded the district court abused its discretion when it dismissed the appellants’ counterclaim as a sanction for spoliation of evidence. Judgment was reversed and the matter remanded for a new trial. View "Toman Engineering Co. v. Koch Construction, et al." on Justia Law

Defendants Patricia G. Olson and Jimmy Dastur appealed a court order disqualifying Steven Bailey, a former El Dorado County Superior Court judge, from representing them in this lawsuit filed by plaintiff Robert Hassett. The trial court relied on rule 1.12 of the Rules of Professional Conduct, finding Bailey’s participation as a judge was personal and substantial in rendering decisions in two other cases involving the validity of options and a purchase agreement for the same real property at issue in the action brought by Hassett. Defendants argued on appeal that: (1) Hassett lacked standing; (2) the disqualification motion was a tactic designed to disrupt defense; and (3) Bailey did not personally and substantially participate as a judge in a “matter” within the meaning of rule 1.12. Finding no reversible error, the Court of Appeal affirmed. View "Hassett v. Olson" on Justia Law

Defendant Mark Bartlett requested the City of Portland to release three city attorney opinions and one legal memorandum. The parties agreed that the documents were public records, were within the scope of the attorney-client privilege, and were more than 25 years old. The city declined to release the documents, arguing that they were exempt from the public records law because of the attorney-client privilege. The specific question presented for the Oregon Supreme Court’s consideration in this case was whether the four documents that were prepared more than 25 years ago by the Portland City Attorney for the mayor and two city commissioners and that were subject to the attorney-client privilege had to be disclosed under ORS 192.390. The Court concluded those documents had to be disclosed. View "City of Portland v. Bartlett" on Justia Law

The Court of Appeal reversed the trial court's denial of plaintiffs' motion for attorney fees, concluding that attorney fee awards against a holder are not capped if a separate state law so provides. The court explained that the term "recovery," as used in the Holder Rule provision, is sufficiently broad to include attorney fees. The court also concluded that Civil Code section 1459.5 is not preempted and plaintiffs are entitled to its benefit. In this case, there is no bar to application of section 1459.5 to the matter before the court even though it had not taken effect when the trial court initially ruled on plaintiffs' fee motion. The court further concluded that certain causes of action asserted by plaintiffs fall within the scope of section 1717 whereas others do not. Finally, plaintiffs waived the argument that section 2983.4 entitles them to an award of attorney fees by failing to raise it below in its motion for attorney fees. The court remanded to the trial court for further proceedings. View "Reyes v. Beneficial State Bank" on Justia Law

About seven weeks after the 2020 presidential election, Republican state legislators, individual voters, and organizations representing voters from Wisconsin, Arizona, Georgia, Michigan, and Pennsylvania—all states carried by Joseph R. Biden Jr.—sued to prevent Congress from certifying their states’ electoral results. The district court denied their motion to enjoin the counting of electoral votes, and, after the Senate certified Biden as the winner, the plaintiffs voluntarily dismissed their case. In a post-dismissal order cataloging the suit’s “numerous shortcomings,” the district court referred plaintiffs’ counsel, Kaardal, to the Committee on Grievances for possible discipline. “When any counsel seeks to target processes at the heart of our democracy,” the district court reasoned, “the Committee may well conclude that they are required to act with far more diligence and good faith than existed here.”The D.C. Circuit dismissed an appeal for lack of jurisdiction. The district court’s referral is not a final order. Rather than fixing Kaardal’s rights and liabilities, the challenged order merely initiated disciplinary proceedings. View "Wisconsin Voters Alliance v. Harris" on Justia Law

In 2020, the Ninth Circuit vacated the EPA’s conditional registrations for three dicamba-based herbicides as violating the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136n(b). The court found that the EPA substantially understated risks that it acknowledged and failed entirely to acknowledge other risks. In a subsequent petition, seeking attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(A), the plaintiffs in the underlying action argued that their requested attorneys’ fees should be calculated based on the market rates in San Francisco, where their petition for review was calendared for oral argument. Only one of their four attorneys is located in San Francisco. The other three are located in Portland.The Ninth Circuit disagreed. Where, as here, attorneys’ fees are incurred in connection with a petition for review in a court of appeals under FIFRA, the presumptive relevant community for calculating market rates is the legal community where counsel are located and where they do the bulk of their work. View "National Family Farm Coalition v. United States Environmental Protection Agency" on Justia Law

In May 2007, SunTrust hired Birch to perform a portfolio valuation on a property located in Indiana. The Birch report valued the property at $3.23 million. PNC Bank provided financing for the mortgage loan; both PNC and SunTrust accepted the report. In October 2007, the owner sold the property to a SunTrust affiliate subject to a $2.3 million loan PNC extended to SunTrust. The loan was later acquired by Regent. After consulting with independent appraisal experts, Regent hired a law firm and employed a certified appraiser, Potter, to evaluate the original Birch report. Potter’s report detailed several deficiencies in Birch’s 2007 appraisal.Regent filed a federal complaint, with state law claims, but soon moved to dismiss the complaint. Birch then filed its own lawsuit against Regent for malicious prosecution. Regent counterclaimed for attorney’s fees under the Indiana frivolous litigation statute. The district court dismissed both claims. The Seventh Circuit affirmed. Birch cannot establish the elements of a successful malicious-prosecution claim, but its lawsuit was not frivolous under Indiana law. Regent did not act maliciously in commencing the underlying action; it had probable cause based on advice from outside counsel, a detailed report by a certified appraiser, and justifiable reliance on the report. View "Birch Rea Partners, Inc. v. Regent Bank" on Justia Law

Farnolo helped his clients file short‐form complaints in the multidistrict “Cook” litigation, involving product liability claims alleging injuries caused by Cook’s medical device—a filter designed to prevent pulmonary embolism. The case management order instructed all plaintiffs to complete a profile form with general personal and medical background information and details about their device and alleged injuries. In May 2019, the defendants notified attorney Farnolo that they did not have forms from his four clients. By late June, the forms still had not been filed. Farnolo never responded to the defendants' motion to dismiss.The district court dismissed the cases on July 19, 2019. Farnolo learned about the dismissal not by monitoring the docket, but from his client more than a year later. On August 18, 2020, he moved for reconsideration and reinstatement of the cases, claiming that he did not receive an electronic docket notification of the motion to dismiss; he attributed his delay in asking for reconsideration to his email inbox sending the dismissal order to his junk folder. The district court denied Farnolo’s motion as both untimely and meritless. The Seventh Circuit affirmed; all Rule 60(b) motions must be made within a “reasonable time” and Rule 60(c)(1) specifically requires requests for reconsideration predicated on excusable neglect to be brought within one year of entry of judgment. Inexcusable attorney negligence is not an exceptional circumstance justifying relief. View "Sides v. Cook Medical Inc." on Justia Law

Mark Shenefield filed a request for order (RFO) seeking joint legal and physical custody of the child he shared with Jennifer Shenefield. In his declaration, Mark quoted from and referenced the contents of a confidential, court-ordered psychological evaluation undertaken during Jennifer’s previous marital dissolution. Mark’s attorney Karolyn Kovtun filed the paperwork. Jennifer opposed Mark’s request and sought sanctions for violations of Family Code sections 3111(d) and 3025.5, for unwarranted disclosure of the confidential custody evaluation. The trial court ordered the sanctions issue be heard at trial. Jennifer’s trial brief detailed her arguments for why the court should impose sanctions on both Mark and Kovtun. Mark did not file a trial brief. Following trial, the court issued sanctions against Mark in the amount of $10,000 and Kovtun in the amount of $15,000. Kovtun challenged the sanctions, filing a motion under Code of Civil Procedure section 473(d). A different court heard Kovtun’s request to vacate the sanctions imposed against her and denied the request. On appeal, Kovtun argued the court improperly sanctioned her because: (1) attorneys could not be sanctioned under section 3111; (2) the notice she received did not comply with due process standards; (3) the court lacked personal jurisdiction over her; (4) the court failed to enforce the safe harbor provision of Code of Civil Procedure section 128.7; and (5) the court improperly admitted and relied on a transcript of a meeting between Kovtun, Mark, and Jennifer. The Court found Kovtun’s arguments meritless, and affirmed the sanctions. View "Shenefield v. Shenefield" on Justia Law

During the COVID-19 pandemic, the Federal Circuit issued administrative orders that prohibited public access to the National Courts Building. When the court resumed allowing counsel in the courthouse for argument in September 2021, it implemented protocols, including “[o]nly arguing counsel and no more than one attendee whose presence is necessary to assist or supervise arguing counsel” were permitted access. All persons entering the building had to complete Form 33C declaring under penalty of perjury that the individual was “scheduled to appear” and that the individual was either fully vaccinated for or received a negative test result for COVID-19 within 48 hours. Arguing counsel also completed Form 33A, certifying that “I am personally responsible for ensuring all individuals attending argument with me" will comply with the protocols.Attorneys unsuccessfully sought permission to bring additional attendees. On the day of their argument, four attorneys proceeded together to the courtroom. The clerk informed special counsel and a non-arguing partner that they could not be in the courtroom. They were escorted out. The attorneys argued that their non-compliance was not intentional and that it was not unreasonable for special counsel and the non-arguing partner to come to court to seek permission to attend the argument.The Federal Circuit did not impose discipline. The court noted that while there was no ambiguity in the instructions, the attorneys expressed earnest remorse, have not previously been accused of misconduct, and this situation has not arisen before. View "In Re Violation of the Revised Protocols for In-Person Arguments" on Justia Law