Justia Civil Procedure Opinion Summaries

Bradley and Karol Johnson appealed a judgment granting the law firm Barna, Guzy, & Steffen, Ltd. ("BGS") foreclosure of a real estate mortgage for payment of a $258,769.97 debt, and an order denying their N.D.R.Civ.P. 60(b) motion for relief from judgment. In 2013 the Johnsons retained BGS to represent them in a lawsuit in connection with the probate of the estate of Bradley Johnson's father in Minnesota. The Johnsons resided in, and BGS was located in, the Minneapolis, Minnesota area. BGS extended credit to the Johnsons for costs, fees, and expenses that would be incurred in representing them in the lawsuit through a revolving line of credit agreement and a revolving promissory note. To secure payment, the Johnsons executed a mortgage on land they owned in North Dakota. The mortgage required the Johnsons to pay all of the principal and interest on the indebtedness when due to BGS. The Johnsons failed to make the payments to BGS as required under the loan agreements. In 2015 BGS brought this action against the Johnsons and others in North Dakota to foreclose the mortgage. The Johnsons counterclaimed, alleging its attorneys committed legal malpractice and other torts during the Minnesota legal proceedings. The district court ultimately dismissed the Johnsons' counterclaim without prejudice for lack of subject matter jurisdiction under N.D.R.Civ.P. 12(h)(3). The court granted summary judgment for foreclosure on the North Dakota property in favor of BGS, concluding the Johnsons were indebted to BGS in the amount of $258,769.97 under the loan agreements with interest continuing to accrue. Because the Johnsons did not establish the district court erred in any of its rulings, the North Dakota Supreme Court affirmed the judgment, and the order denying the motion for relief from judgment. View "Barna, Guzy & Steffen, Ltd. v. Johnson" on Justia Law

A self-represented couple sued their lawyer for legal malpractice. After lengthy and contentious discovery disputes, at the end of which the couple was sanctioned, the couple retained counsel to assist them in terminating the litigation. The parties agreed to dismiss the suit with prejudice, leaving open the couple’s former lawyer’s right to seek an award of attorney’s fees. At issue in this appeal was the superior court’s decisions regarding that lawyer’s motion for attorney’s fees. The superior court applied Alaska Civil Rule 82 for its award of partial reasonable attorney’s fees to the lawyer. But instead of employing Rule 82(b)(2)’s standard 20% calculation for an award without a money judgment, the court applied Rule 82(b)(3), which allowed courts to vary from the standard award. The court made findings and exercised its discretion to use 15% for calculating its fee award to the lawyer, and it left the discovery sanction against the couple in place. The Alaska Supreme Court concluded that the superior court’s findings were not clearly erroneous and that the court did not abuse its discretion or otherwise err when it applied Rule 82(b)(3); furthermore, the Court also concluded the superior court did not abuse its discretion in levying and leaving in place the discovery sanction. View "Boiko v. Kapolchok" on Justia Law

Cortese is the daughter of Francesca, and the stepdaughter of Robert. Attorney Sherwood handled their legal matters under Robert’s direction. Cortese alleges Robert promised her that, upon his death, “he would treat her equally as his other children.” Sherwood drafted Francesca’s will and represented Robert as executor during the administration of Francesca’s estate after Francesca’s 1997 death. Robert was worth $2 billion; Francesca’s estate was valued at $2 million. Robert became the trustee and life beneficiary of Francesca’s trust. Cortese and her sister were remainder beneficiaries. “Relying on Robert’s promises and [Sherwood]’s representations, [Cortese] did not challenge Robert’s acts as executor.” In 2008, “in reliance on promises,” by Sherwood and Robert, Cortese “reluctantly agreed to terminate the Trust … without the advice of counsel.” Cortese alleges the termination favored Robert, causing Cortese and her sister to bear unnecessary capital gains tax. After Robert’s 2016 death, Cortese was not a beneficiary of Robert’s estate. Cortese alleged breach of fiduciary duty against Sherwood and Topham, as co-trustees of Robert’s trust; third-party liability for breach of trust against Sherwood; and return of trust property against both. The court dismissed the second claim against Sherwood, apparently for failure to comply with Civil Code 1714.10: A party must establish a reasonable probability of prevailing before pursuing a “cause of action against an attorney for a civil conspiracy with his ... client arising from any attempt to contest or compromise a claim or dispute.” The court of appeal agreed. Cortese alleged Sherwood conspired with Robert and induced her to forego challenges to Robert’s actions--conduct arising from the compromise of a dispute. No statutory exceptions apply. View "Cortese v. Sherwood" on Justia Law

Holcomb did not pay her credit-card bill. The creditor hired the Freedman law firm, which sued Holcomb on the creditor’s behalf in state court. Holcomb initially appeared pro se but later retained Attorney Finko. When Freedman moved for default judgment, Finko had not yet filed a written appearance. Freedman served the motion on both Holcomb and Finko. Holcomb alleges that Freedman violated the Fair Debt Collection Practices Act, which prohibits a debt collector from directly contacting a debtor who is represented by counsel absent “express permission” from “a court of competent jurisdiction,” 15 U.S.C. 1692c(a)(2). Freedman argued that it had “express permission” because Illinois Supreme Court Rule 11 requires service of court papers on a party’s “attorney of record,” if there is one, but “[o]therwise service shall be made upon the party.” Freedman argued that Finko was not yet Holcomb’s “attorney of record” for purposes of Rule 11, requiring service on Holcomb directly. The district judge rejected this argument as “hyper-technical.” The Seventh Circuit reversed. An attorney becomes a party’s “attorney of record” for Rule 11 purposes only by filing a written appearance or another pleading with the court. Finko had done neither, so Rule 11 required Freedman to serve the default motion on Holcomb directly. View "Holcomb v. Freedman Anselmo Lindberg, LLC" on Justia Law

Philadelphia police officers shot and killed Purnell, who died intestate. Purnell’s minor daughter is the sole beneficiary of the estate. Murray, Purnell’s mother, hired an attorney and obtained letters of administration to act on behalf of her son’s estate. Murray filed a lawsuit on behalf of the estate alleging excessive force against the city and the officers under 42 U.S.C. 1983. The district court granted the city summary judgment but allowed her claims against the officers to proceed to a jury trial. The officers' defense was that they had used deadly force in self-defense. The jury returned verdicts in favor of the officers. Murray filed a pro se notice of appeal. The Third Circuit ordered the pro bono appointment of amicus curiae to address whether Murray may proceed pro se on behalf of Purnell’s estate. Under 28 U.S.C. 1654, “parties may plead and conduct their own cases personally or by counsel” in the federal courts. Although an individual may represent herself pro se, a non-attorney may not represent other parties in federal court. The Third Circuit then dismissed Murray’s appeal: a non-attorney who is not a beneficiary of the estate may not conduct a case pro se on behalf of the estate. View "Murray v. City of Philadelphia" on Justia Law

In 2009 Blanchard, a Chicago law firm, provided legal services to an Indian pharmaceutical company, Lupin India, and its American subsidiary, Lupin USA, concerning the patentability of a generic birth‐control drug that Lupin India planned to launch in the U.S. through Lupin USA. When the Lupin companies initially sought Blanchard’s advice, the firm sent an engagement letter outlining its hourly fees and other terms. Neither Lupin India nor Lupin USA signed the letter, but Blanchard provided the requested legal services and the companies, at first, paid the firm for its work. In October 2009 Blanchard sent its two final invoices, which went unpaid. Seven years later Blanchard sued the Lupin companies for breach of contract and unjust enrichment. A district judge dismissed both claims as untimely. The Seventh Circuit affirmed in part. The unjust enrichment claim is untimely, having accrued in 2009 when Blanchard furnished the services and the Lupin companies did not pay. The five‐year statute of limitations expired long before suit was commenced. The contract claim is timely, however. Though the engagement letter is unsigned, it counts as a written contract under Illinois limitations law, and the claim for breach is therefore governed by a ten‐year statute of limitations. View "Blanchard & Associates v. Lupin Pharmaceuticals, Inc." on Justia Law

The attorneys for plaintiff Lisa Levingston, O.D., failed to file an opposition to a motion for summary judgment. They had been substituted into the case after Levingston’s former attorneys were disqualified and the opposition that the former attorneys had filed was stricken. At the hearing on the motion, Levingston’s new counsel claimed they had not known that they needed to file a new opposition; they requested relief from default, under Code of Civil Procedure section 473(b), and a continuance. The trial court found that new counsel’s failure was inexcusable neglect, and granted summary judgment. The Court of Appeal concurred with the trial court’s finding that due to new counsel’s inexcusable neglect, Levingston was not entitled to relief under Code of Civil Procedure section 473(b); nevertheless, under controlling case law, she was entitled to a continuance to file an opposition. View "Levingston v. Kaiser Foundation Health Plan" on Justia Law

Seven members of the Supreme Court of Alabama, including the Chief Justice, recused themselves from consideration of all matters related to this mandamus petition pursuant to Canon 3.C of the Alabama Canons of Judicial Ethics. Their recusal left Associate Justices William Sellers and Brady Mendheim, Jr., to hear the petition. Justice Sellers, as Acting Chief Justice, notified the parties that an additional five justices would be selected by random drawing from a pool of retired justices and judges and active circuit judges, after which five judges were appointed to serve as Special Associate Justices. Former Alabama Supreme Court Justice Roy Moore and his campaign committee, "Judge Roy Moore for US Senate" ("the Committee"), petitioned the Court for a writ of mandamus to direct the Montgomery Circuit Court ("the trial court") to transfer an action filed by Leigh Corfman alleging defamation against Moore and the Committee to the Etowah Circuit Court. “Considering a mandamus petitioner's heavy burden” and all the materials before it, the Court concluded that the trial court did not exceed its discretion in denying the motion for a change of venue based on the interest of justice or on the convenience of the parties and the witnesses. Accordingly, it denied the petition. View "Ex parte Roy S. Moore and Judge Roy Moore for US Senate." on Justia Law

The State and other defendants the New Hampshire Department of Education; Margaret Wood Hassan, individually; Christopher T. Sununu, as Governor; Virginia M. Barry, individually; and Frank Edelblut, as Commissioner of the New Hampshire Department of Education, appealed a superior court order granting plaintiffs Bedford School District and William Foote (collectively, “Bedford”), attorney’s fees in a case that Bedford had filed to recover adequate education funding that the State withheld in fiscal year 2016 because of a statutory limit on state funding imposed under RSA 198:41, III(b) (Supp. 2015) (repealed 2015, repeal effective July 1, 2017). On appeal, the State argued that because the trial court specifically declined to find that the State had acted in bad faith in this litigation, the trial court unsustainably exercised its discretion in awarding attorney’s fees. The State also argued that Bedford waived its right to attorney’s fees when it accepted education funds appropriated by a bill that contained a waiver provision. The New Hampshire Supreme Court found after review of the superior court record, that Bedford waived its right to an award of attorney’s fees, and thus reversed the superior court’s order. View "Bedford School District v. New Hampshire" on Justia Law

Fuery, her friends Sciortino and Tomaskovic, and Chicago police officer Szura were involved in an altercation on the side of the road. The three women were arrested for battery of a police officer; each was acquitted. The women sued the City and Officer Szura under 42 U.S.C. 1983 and 1985. At trial, the defendants objected to various testimony as violating the court’s rulings on motions in limine, moved for a mistrial, and requested dismissal of all claims and attorneys’ fees as a sanction. The judge stated, “[t]here are plenty of options once the trial is concluded to deal with the misconduct … I am not letting it go.” The jury awarded Tomaskovic $260,000 against Szura on her excessive force claim, finding that Szura was acting within the scope of his employment, but found in favor of the defendants on all other claims. The court entered judgment in favor of the City and Szura on all claims but denied the claims for attorneys’ fees. The court found misconduct by plaintiffs’ attorney and that “plaintiffs actively participated.” The Seventh Circuit affirmed, stating that it was apparent, “even from the two-dimensional record, the judge’s patience being tried.” District courts “possess certain inherent powers, not conferred by rule or statute, to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. That authority includes the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” View "Fuery v. City of Chicago" on Justia Law