Tuesday, March 29, 2011

Blistering 7th Circuit Opinion Fines Lawyer $5K, Orders Him to Alert Clients to Possible Malpractice

After a lengthy civil procedure lesson, the opinion goes on to say that "Greco’s calamitous handling of this litigation in the district court has been followed by a sloppy performance in this court," including "procedural gaffes, three of which led to orders to show cause why the appeal should not be dismissed—and one of which led to his clients’ brief being struck."
The opinion concludes with a finding that Greco "has comported himself unprofessionally," fines him $5,000 (payable within 14 days) and orders him to send copies of the ruling to his clients in the case "so that they may consider whether to file malpractice suits against him."
Easterbrook also calls Greco "a menace to his clients and a scofflaw with respect to appellate procedure" and suggests that the federal district court "may wish to consider whether he should remain a member of its bar."
Reached by the ABA Journal, Greco said he could not comment at this time on the ongoing case. His disciplinary record since his 1989 admission is unblemished, according to the Illinois Attorney Registration and Disciplinary Commission website.

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Saturday, March 19, 2011

Move to Reshape Florida's Courts Advances With Backing of House Speaker

From The Ledger.com
By Lloyd Dunkelberger
Published: Friday, March 18, 2011 at 11:40 p.m.
Last Modified: Friday, March 18, 2011 at 11:40 p.m. 
"TALLAHASSEE | With the backing of House Speaker Dean Cannon, a House panel on Thursday advanced a package of measures that would dramatically reshape Florida's appellate courts, including splitting the Florida Supreme Court into two courts and requiring all appellate judges to face a confirmation vote in the state Senate.  The moves drew criticism from some judges and The Florida Bar, the legal group that represents the state's 90,000 lawyers, but also had support from some business groups, including the Florida Chamber of Commerce.  More.

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Friday, March 11, 2011

7th Circuit Zaps Lawyer for Exceeding 14K Word Limit in Brief, Summarily OKs Lower Court Decision

Posted March 9, 2011 in ABA Journal Law News
by Martha Neill
In a blistering opinion (PDF) today, a federal appeals court not only stated or implied that a lawyer had been untruthful in his certification that a brief met the 14,000-word limit but criticized his "rambling" writing.
Then, saying that any further effort by appellant attorney John Caudill to file a brief that complied with the Chicago-based 7th U.S. Circuit Court of Appeals rules would be pointless, a three-judge panel summarily affirmed the district court decision in the case. More.

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Thursday, March 10, 2011

Federal preemption, appraisals, contracts, real estate and raspberries with chocolate ganache

Attorney's fees -- Offer of judgment -- Trial court properly awarded attorney's fees to defendants pursuant to offer of judgment statute where the two defendants each agreed to contribute $50 to the settlement for a total of $100, with plaintiff, upon acceptance, being required to voluntarily dismiss the suit -- Offer was not an undifferentiated offer of settlement or otherwise improper
ROBERT ROSSMORE, Appellant, v. BENITA G. SMITH AND MARIE LAUGHLIN, Appellees. 5th District.

Bankruptcy -- Fraudulent transfers -- Avoidance -- Chapter 11 trustee filed complaint to avoid as actual fraudulent transfers the total amount of loan repayments made to bank from debtors within past four years, alleging that debtor and his co-debtor companies perpetrated bank fraud scheme in which debtors falsified due diligence materials to con banks into lending debtor and his co-debtor companies millions of dollars -- Bank is not entitled to dismissal of complaint on ground that trustee failed to state a claim for actual fraudulent transfer because so-called Ponzi scheme presumption on which trustee relies does not apply to series of loan repayments debtor and his co-debtor companies made to bank, and that trustee pled facts that establish bank's good faith defense to fraudulent transfer claim -- Chapter 11 trustee pled enough facts to state plausible claim for actual fraudulent transfer based on Ponzi scheme presumption by alleging that loan repayments made to bank further perpetuated debtor's other Ponzi schemes -- Bank fraud scheme did not satisfy all four of factors for proving existence of Ponzi scheme because bank loans are by any definition not investments and therefore bank was not an investor -- Because bank fraud scheme was not Ponzi scheme, trustee could not rely solely on alleged existence of bank fraud scheme to establish entitlement to Ponzi scheme presumption of actual fraudulent intent, but must show that debtor's loan repayments to bank somehow further perpetrated one of debtor's Ponzi schemes -- Bank's good faith defense is not established on pleadings -- Trustee pled sufficient facts to establish plausibility of its claim that bank “should have known” of debtor's fraudulent purposes, where trustee alleged that bank ignored “information regarding the borrower's financial difficulty,” even though complaint does not specify how bank would have uncovered debtor's fraudulent scheme had it followed up on some of alleged warning signs of difficulty
In re: LOUIS J. PEARLMAN, et al., Debtor. U.S. Bankruptcy Court, Middle District of Florida, Orlando Division.

Criminal law -- Murder -- Evidence -- Hearsay -- Testimonial out-of-court statements -- Victim's statements identifying and describing shooter and location of shooting, made to police officers who discovered him mortally wounded in a gas station parking lot, were not testimonial statements where the circumstances of the interaction between the victim and the police objectively indicated that the primary purpose of police interrogation was “to enable police assistance to meet an ongoing emergency” -- Admission of these statements at defendant's trial did not violate Confrontation Clause
MICHIGAN, Petitioner, v. RICHARD PERRY BRYANT. U.S. Supreme Court.

Criminal law -- Prohibition -- Emergency petition seeking to prohibit circuit court from proceeding to trial until supreme court determines proper procedure for deciding immunity from prosecution under “Stand Your Ground Law” -- In view of supreme court's recent decision resolving conflict on this issue and rejecting district court's prior position, petition granted and trial court directed to follow the approved procedure
JULIO CRUZ, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Contracts -- Real estate appraisal services -- Error to fail to award prejudgment interest on damages awarded to real estate appraiser for services as expert in eminent domain action -- On remand, trial court to determine whether date payment was due was date on which appraiser submitted his first invoice to clients or the date appraiser sent invoice to clients after court in eminent domain action declined to award fees -- No merit to argument that prejudgment interest should be calculated as of date of filing of complaint where record contained evidence regarding dates of appraiser's two demands for payment
D. P. “RICK” WOOD, Appellant, v. Unknown Personal Representative of the Estate of SAMUEL E. BURNETTE and SHARON K. BURNETTE, Appellees. 2nd District.

Creditors' rights -- Postjudgment discovery in aid of execution of judgment -- Trial court departed from essential requirements of law by permitting discovery in aid of execution of a final summary judgment which was void -- Summary judgment was null and void where trial court entered it while appeal of a nonfinal order was pending
LORI GIBSON; LESLIE BETTS; MARC BETTS; and LYDIA SIERRA, Petitioners, v. PROGRESS BANK OF FLORIDA, a chartered commercial bank; AXIOM WORLDWIDE, L.L.C., a limited liability company; NICHOLAS J. EXARHOS, individually; and JAMES J. GIBSON, JR., individually, Respondents. 2nd District.

D&O Insurance: FLORIDA APPEALS COURT REVERSES D&O SETTLEMENT-OFFER RULING, Arrowood Indem. Co. v. Acosta Inc., 21 No. 21 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage March 4, 2011
A Florida appeals court has reversed a ruling that an insurer did not exhibit good faith by offering $1,000 to settle a coverage dispute under a director- and-officer policy when the insurer's potential liability was $10 million. The trial judge erred by relying on an objective standard to find that Arrowood Indemnity Co.'s offer was unreasonable when it could have been liable for its entire $10 million D&O policy limit, the 1st District Court of Appeal said.

Insurance -- Automobile -- Comprehensive coverage -- Cancellation of policy -- Trial court erred in entering summary judgment for insurer in insured's action to recover benefits for losses sustained when his automobile was stolen on ground that policy had been cancelled for non-payment of premium prior to loss, where there was factual issue as to whether notice of cancellation had been mailed or delivered to insured by insurer as required by statute -- Fact that insured had received a letter from Florida Department of Motor Vehicles stating that policy had been cancelled did not satisfy statutory requirement for cancellation of policy

Insurance -- Management liability -- Duty to defend and indemnify -- Where policy contained intellectual property rights exclusion which provided that insurer would not be liable for loss in connection with a claim in any way involving any actual or alleged intellectual property rights, trial court properly entered judgment on the pleadings in favor of insurer in insured's action for declaratory relief seeking determination of insurer's duty to defend and indemnify insured against lawsuits arising out of patents acquired by insured and its subsidiary, allegedly without fair compensation to owner

Insurance -- Coverage Dispute: BAD-FAITH CLAIM SURVIVES IN COVERAGE DISPUTE OVER WATERLOGGED HOUSE, Lombardi v. Allstate, 21 No. 21 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage March 4, 2011
A federal judge in Pittsburgh has kept alive a bad-faith claim concerning an adjuster's denial of a claim for water damage after a brief phone call with the claimant. "Put succinctly, a claim was denied during the course of a three-minute phone call, when no admission was made which would have otherwise exempted the claim from coverage," U.S. District Judge Donetta W. Ambrose of the Western District of Pennsylvania said.

Insurance –Coverage Dispute: 10TH CIRCUIT SAYS BAD-FAITH CLAIM NOT 'FRIVOLOUS', Blakely v. USAA Cas. Ins. Co., 21 No. 21 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage March 4, 2011
The 10th U.S. Circuit Court of Appeals has reinstated a claim for bad faith in a case in which homeowners had to invoke their policy's appraisal process to recoup $200,000 they were owed as a result of a fire loss. The three-judge panel unanimously held that a Utah federal court erred when it dismissed the claim as frivolous.According to the panel's opinion, Alan and Colelyn Blakely's house was damaged in a 2002 fire caused by a worker who was refinishing floors in the home.

Paternity -- Child support -- Modification -- Where mother's initial petition for modification was dismissed without prejudice after father falsely represented that he did not receive timely service of the petition, modification should have been made retroactive to date of initial petition for modification rather than to date on which mother filed second amended petition for modification -- Attorney's fees -- All child support cases that are administered by the Department of Revenue are considered Title IV-D cases, despite the fact that the Department of Revenue has not been named as a party -- Where case is a Title IV-D case and father is the non-prevailing obligor, mother's claim for attorney's fees against father is permitted
ROSEMARIE SPANO, Appellant, vs. DENNIS E. BRUCE, Appellee. 3rd District.

Secured transactions -- Deficiency judgment after creditor had sold repossessed industrial earthmoving equipment -- Trial court erred in entering summary judgment for deficiency judgment where there was factual issue as to whether sale of repossessed equipment through private sale and internet auction was commercially reasonable -- Summary judgment was not proper on alternative ground that the amount recovered through the sale of the equipment was less than the fair market value of the equipment -- Because summary judgment is reversed, award of attorney's fees based on prevailing party attorney's fee provision in security agreement is also reversed -- Trial court abused discretion in denying defendant's motion for leave to amend its answer where discovery was ongoing, no hearing had been set on plaintiff's motion for summary judgment, privilege to amend had not been abused, amendment would not be futile, and amendment would not prejudice plaintiff

Torts -- Duty of care owed to worker who was injured on project for construction of residence -- Trial court properly denied motion for summary judgment by defendant LLC which had signed agreement with owners to act as a “consultant” on the project, where the LLC actually performed many of the functions of a general contractor, and there was evidence that the LLC was in control of the job site where plaintiff was injured while working on the project -- Although court properly declined to enter summary judgment for defendant LLC, court erred in entering summary judgment for individual who was a licensed general contractor, the only member of the LLC, and its sole agent and employee -- Because there were facts in the record that would support a determination that the LLC owed a duty of care to construction workers on the project, jury could find that individual defendant was also liable for a breach of that duty

Torts -- Negligence -- Prank -- Plaintiff's second amended complaint alleged set of facts which established that defendant created a foreseeable zone of risk, and thereby owed a duty of care to plaintiff, where plaintiff alleged that defendant induced her to climb to top edge of a very high cliff despite plaintiff's repeated statements that she was not comfortable with the climb and was afraid to descend alone, refused to accompany plaintiff to bottom, and induced her to jump from cliff into lake, resulting in permanent injury, by tricking her into believing that he had fallen into water and that she should jump in to save him -- Fact that defendant's conduct was part of prank does not foreclose negligence action -- Defendant's alleged conduct, as characterized by plaintiff, did not constitute an intentional tort under supreme court's “substantially certain” test -- Error to dismiss case with prejudice
RANDI BORRACK, Appellant, v. CHARLES D. REED, M.D., Appellee. 4th District.

Torts -- Federal preemption -- Federal Motor Vehicle Safety Standard 208 does not preempt state tort suits claiming that automobile manufacturers should have installed lap-and-shoulder belts, instead of lap belts, on rear inner seats -- Even though state tort suit may restrict manufacturer's choice of belts for rear inner seats, it does not stand as an obstacle to the accomplishments of full purposes and objectives of federal law -- Because providing manufacturers with this seatbelt choice is not a significant objective of the federal regulation, FMVSS 208 does not preempt state tort suit
DELBERT WILLIAMSON, et al., Petitioners, v. MAZDA MOTOR OF AMERICA, INC., et al. U.S. Supreme Court. 

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Saturday, March 5, 2011

House kills health law provision - from The Boston Globe

House kills health law provision - The Boston Globe
"The House voted overwhelmingly yesterday to repeal an unpopular tax filing requirement for businesses tucked into the new health care law. 
The provision would require millions of businesses to file tax forms for every vendor that sells them more than $600 in goods each year, starting in 2012. The requirement is projected to raise nearly $25 billion over the next decade by ensuring that vendors pay their taxes. But lawmakers in both parties say it could create a paperwork nightmare for businesses and the Internal Revenue Service." More

Friday, March 4, 2011

Briefs push both sides of med mal cap debate

Post in The West Virginia Record by Steve Korris  -Statehouse Bureau

"MORGANTOWN - Caps on awards for pain and suffering in medical malpractice trials prevent runaway jury verdicts, the West Virginia State Medical Association pleads in a case the Supreme Court of Appeals will hear on Tuesday, March 8.

The association, as friend of the court, urges the Justices to reject a constitutional challenge to limits the Legislature imposed on non economic damages in 2003.

"Some plaintiffs' attorneys and their allies may champion extraordinarily high verdicts, but they go beyond the plaintiff's needs, distort the civil justice system, and place undue strain on the accessibility of health care and on the economy," wrote Mark Behrens of Washington, D.C.

Societies of specialists in the association joined the brief, along with three groups of insurers and the National Federation of Independent Businesses.

In another friendly brief, the state Bureau of Risk Insurance and Management warns that taxpayers will bear the cost if the Justices remove the caps.

In another, the insurer who covers most West Virginia doctors asserts that even after reforms, doctors pay nearly twice as much for insurance as those in bordering states

Friends of the court on the other side argue that legislators discriminated against vulnerable citizens and substituted their judgment for that of jurors.

Public Justice Foundation president Harry Deitzler of Charleston wrote, "Such limitations on the right to recovery have created a system in West Virginia where attorneys are unwilling to take medical malpractice cases where the victim does not have significant economic damages."

In the case at hand, James and Debbie MacDonald sued physician Sayeed Ahmed and City Hospital, a subsidiary of West Virginia University Hospitals, in Berkeley County.

They claimed James suffered a leg injury through improper administration of drugs.

At trial before Judge Gray Silver in 2008, jurors awarded James $750,000 for future pain and suffering, $250,000 for past pain and suffering, $92,000 in past medical expenses, and $37,000 in past lost wages, for a total of $1,129,000.

They awarded wife Debbie MacDonald $500,000 for sorrow, anguish and solace.

They assigned 70 percent of liability to Ahmed and 30 percent to City Hospital.

Silver ruled that $1,500,000 for non economic damages exceeded a $500,000 limit that legislators set in 2003, and he reduced the verdict by $1 million.

The MacDonalds posed a constitutional challenge, and Silver rejected it.

Ahmed and City Hospital moved to apply a $250,000 cap rather than a $500,000 cap that legislators imposed for more serious injuries, and Silver denied the motion.

He also denied the hospital's motion to set aside the verdict due to insufficient evidence.

The MacDonalds appealed, and Ahmed and the hospital filed cross appeals.

A cascade of friendly briefs followed.

For the state medical association and its allies, Behrens wrote, "Non economic damages awards are highly subjective and inherently unpredictable.

"There is no market for pain and suffering. ... Historically, pain and suffering damages were modest in amount and often had a close relationship to a plaintiff's actual pecuniary loss, such as medical expenses. ... That is not true today."

He wrote that from the 1960s to the 1980s, pain and suffering awards in wrongful death cases grew 300 percent.

"Pain and suffering awards became the most substantial part of tort costs," he wrote.

He wrote that in 2002, three neurosurgeons in Charleston faced a premium near $800,000, more than their combined pay.

"Such high costs led to the absence of neurosurgeons in Wheeling, Logan, and Beckley and those remaining in other areas of the state steadily departed," he wrote.. . . ."  More.