Justia Civil Procedure Opinion Summaries

The Supreme Court reversed the order of the circuit court dismissing Petitioners’ civil action as a sanction for alleged discovery violations, holding that the circuit court abused its discretion by imposing the sanction of dismissal.Petitioners bought this civil action against Respondent alleging unfair and deceptive acts, breach of express and implied warranties, breach of contract, and other causes of action. Respondent eventually filed a second motion to dismiss the civil action as a sanction for alleged discovery violations. The circuit court identified ten instances of alleged wrongful conduct by Petitioners and granted Respondent’s motion to dismiss. The Supreme Court reversed, holding that, even assuming that there was a discovery violation, the circuit court’s imposition of the extreme sanction of dismissal was an abuse of discretion. View "Smith v. Gebhardt" on Justia Law

The Oregon Commission on Judicial Fitness and Disability filed a formal complaint alleging 13 misconduct counts against respondent, the Honorable Vance Day, involving Oregon Code of Judicial Conduct Rule 2.1; Rule 2.2; Rule 3.3(B); Rule 3.7(B); courteous to litigants); and Article VII (Amended), sections 8(1)(b), (c), and (e), of the Oregon Constitution. After conducting a hearing, the commission filed a recommendation with the Oregon Supreme Court, to the effect that clear and convincing evidence supported a conclusion that respondent had violated multiple rules with respect to eight of the counts, including violations not alleged in the complaint. The commission further recommended that respondent be removed from office. Respondent argued the Supreme Court should have dismissed all or several counts for procedural reasons; that the commission did not sufficiently prove the alleged misconduct; and, in any event, that the only appropriate sanction was a censure. After review, the Oregon Court dismissed two of the eight counts of the complaint that were at issue; the Court declined to consider any violation that the Commission did not originally allege in its complaint. The Supreme Court concluded the Commission proved by clear and convincing evidence that respondent engaged in some of the misconduct alleged in the remaining six counts. The Court suspended respondent, without pay, for three years. View "In re Day" on Justia Law

The Oregon Commission on Judicial Fitness and Disability filed a formal complaint alleging 13 misconduct counts against respondent, the Honorable Vance Day, involving Oregon Code of Judicial Conduct Rule 2.1; Rule 2.2; Rule 3.3(B); Rule 3.7(B); courteous to litigants); and Article VII (Amended), sections 8(1)(b), (c), and (e), of the Oregon Constitution. After conducting a hearing, the commission filed a recommendation with the Oregon Supreme Court, to the effect that clear and convincing evidence supported a conclusion that respondent had violated multiple rules with respect to eight of the counts, including violations not alleged in the complaint. The commission further recommended that respondent be removed from office. Respondent argued the Supreme Court should have dismissed all or several counts for procedural reasons; that the commission did not sufficiently prove the alleged misconduct; and, in any event, that the only appropriate sanction was a censure. After review, the Oregon Court dismissed two of the eight counts of the complaint that were at issue; the Court declined to consider any violation that the Commission did not originally allege in its complaint. The Supreme Court concluded the Commission proved by clear and convincing evidence that respondent engaged in some of the misconduct alleged in the remaining six counts. The Court suspended respondent, without pay, for three years. View "In re Day" on Justia Law

On September 28, 2016, the Medical Board filed an accusation against Alfred Adams, M.D., alleging that he prescribed himself controlled substances, failed to cooperate with the board, and failed to provide an accurate address. The accusation was served by certified mail on his Emeryville address of record. The unopened mail was returned, stamped “Return to Sender, Unable to Forward.” On November 1, the board sent notice of default by certified mail, which was also returned. After a Lexis search, the board served the accusation by certified mail to another Emeryville address. On January 20, 2017, the board issued a default decision, revoking Adams’s medical license, which was served by certified mail and first class mail to both addresses. On April 7, 2017, Adams sought mandamus relief, claiming that no evidence established service. The court directed the board to set aside its default decision. The court of appeal ruled in favor of the board. Section 11505(c) authorizes service of a document adversely affecting one’s rights by registered mail and “does not require proof of service in the form of a return receipt signed by the party or other acknowledgement of receipt by the party.” Section 8311 authorizes “any other means of physical delivery that provides a receipt” but does not impose this requirement if service is made by certified mail. View "Medical Board of California v. Superior Court" on Justia Law

The Superior Court of Navajo County erred when it denied Defendants’ motion for change of venue in this legal malpractice action filed by a Hospital located in Navajo County against a professional limited liability company (PLLC) organized in Maricopa County and its attorneys, both Maricopa County residents.After the Hospital sued, Defendants moved to transfer venue to Maricopa County, arguing that venue in Navajo County was improper unless a statutory exception applied under Ariz. Rev. Stat. 12-401. The trial court denied the motion, finding that venue in Navajo was proper under section 12-401(5) because the Hospital “exclusively contracted business in Navajo County,” and under section 12-401(18), reasoning that LLCs should be considered corporations for venue purposes. The Supreme Court reversed, holding (1) the PLLC was not required, expressly or by necessary implication, to perform in Navajo County; and (2) the trial court erred when it applied the subsection (18) exception on the basis that LLCs, like corporations, are amenable to veil-piercing, where venue and the alter-ego doctrine reflect different policy considerations. View "Butler Law Firm, PLC v. Honorable Robert J. Higgins" 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

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

In March 2016, Eric Clark and Clark and Associates, PLLC (collectively, Clark) sued the law firm of Jones Gledhill Fuhrman Gourley, P.A., and two individuals associated with that firm, William Fuhrman and Christopher Graham (collectively, Jones Gledhill). The genesis of this appeal started with Forbush v. Sagecrest Multi Family Property Owners’ Association, Inc., 396 P.3d 1199 (2017), a tort case in which a water heater emitted hazardous levels of carbon monoxide, killing one and seriously injuring another. In "Forbush," Clark initially represented the plaintiffs (Forbush), and Jones Gledhill represented two of the defendants, Anfinson Plumbing and Daniel Bakken. As his co-counsel, Clark enlisted the Spence Law Firm (Spence), but after approximately three years, irreconcilable differences plagued Clark and Spence’s relationship, and Clark withdrew. After withdrawing, in September 2015, Clark sent a letter to Jones Gledhill, which stated that he was “asserting an attorney lien according to I.C. 3-205, which attaches to any settlement or verdict. Please include [Clark’s] name on any settlement checks payable to the [Forbush] plaintiffs or any other payments related to a verdict or judgment.” A settlement between the Forbush defendants and plaintiffs was reached in January 2016, at which time the Forbush defendants wrote a settlement check to the Forbush plaintiffs. Without informing Clark of the settlement, Jones Gledhill forwarded the settlement check to Spence. When Clark learned of the settlement and contacted Jones Gledhill, the enforceability of Clark’s claimed lien became disputed. Clark alleged that Jones Gledhill was liable for failing to protect his attorney lien. Jones Gledhill moved to dismiss Clark’s amended complaint under Idaho Rule of Civil Procedure 12(b)(6), and the district court granted the motion. In addition to dismissing Clark’s complaint, the district court sealed several documents containing correspondence with and information about Clark’s former clients, denied Clark’s motion to amend, and awarded attorney fees under Idaho Code section 12-121 to Jones Gledhill. Clark appealed. But finding no reversible error, the Idaho Supreme Court affirmed. View "Clark v. Jones Gledhill Fuhrman Gourley" on Justia Law

Appellant SCF Consulting, LLC lodged a civil complaint against Appellee, the law firm of Barrack, Rodos & Bacine, in the common pleas court. Appellant averred that it had maintained a longstanding oral consulting agreement with the law firm, which the firm purportedly breached in 2014. According to Appellant, the arrangement was for the solicitation of institutional investors to participate in securities class actions, and remuneration was to be in the form of a two-and-one-half to five-percent share of the firm’s annual profits on matters “originated” by Appellant’s principal or on which he provided substantial work. Appellant claimed the consulting agreement qualified as an express exception to the anti-fee-splitting rule for an employee “compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.” Alternatively, Appellant argued Appellee’s attempt to invoke public policy as a shield was an “audacious defense” which, if credited, would perversely reward the law firm by allowing it to profit from its own unethical conduct. The county court agreed with Appellee’s position concerning both the nonapplicability of the exception to Rule 5.4(a)’s prohibition and the unenforceability of the alleged agreement. The Pennsylvania Supreme Court concluded the ultimate outcome of this case might turn on factual findings concerning Appellant’s culpability, or the degree thereof, relative to the alleged ethical violation. The Court held only that the contract cause of action was not per se barred by the purported infraction on Appellee’s part and, accordingly, the county court’s bright-line approach to the unenforceability of the alleged consulting agreement should not have been sustained. View "SCF Consulting, LLC. v. Barrack Rodos & Bacine" on Justia Law

The Chois consulted in 2003 with defendants, who advised the Chois that an IRC 412(i) Plan retirement account would provide tax advantages, asset protection, and steady income. It required several steps including the purchase of “whole life” insurance for eventual exchange for American General Universal Life “Platinum” policies. The initial purchase was $1,275,000; a second purchase cost $439,000. The policies comprised 70-75 percent of the Plan portfolio. The IRS audited the Chois in 2006. Defendants changed their advice. Plaintiffs sued, alleging cash losses attributable to loss in value and that they were required to pay $440,000 in back taxes and interest, plus $60,000 in penalties, and faced future payments to the Franchise Tax Board of California and anticipated IRS penalties of $600,000. Defendants cross-complained for indemnity and comparative fault against American General. The trial court found the claims time-barred. The court of appeal affirmed, upholding a determination that the limitations period began to run in September 2007, when plaintiffs were “on notice” that the IRS would impose penalties, not in 2010 when penalties were assessed; the court declining to consider any tolling effect created by the ongoing fiduciary relationship; and application of the 2007 “notice” date as a bar to all claims. View "Choi v. Sagemark Consulting" on Justia Law