Legal News

Case Summaries

Attorney's Fees

[09/03] Seller Agency Council, Inc. v. Kennedy Ctr. for Real Estate Educ., Inc.
An order denying counter-claimants damages, attorneys' fees, and costs in an action for trademark infringement against plaintiffs is affirmed in part, vacated in part, and remanded where: 1) the doctrine of unclean hands does not bar the application of the equitable defense of acquiescence in this instance; 2) plaintiff had permission to use the marks at issue before July 12, 2006; and 3) a remand was proper so that the district court may consider the applicability of plaintiffs' defense of acquiescence in a manner consistent with the circuit court's opinion.

[09/01] Fisher v. Wal-Mart Stores, Inc.
In an action against Wal-Mart Stores, Inc. and two Missouri police officers following an incident involving counterfeit money orders at a Raymore Wal-Mart store, summary judgment for defendants is affirmed where: 1) given these undisputed facts, probable cause supported plaintiff's warrantless arrest; 2) attorney's fees were proper because plaintiff's continued prosecution of her false arrest claim against the officers in the face of the evidence upon discovery was unquestionably groundless and unreasonable; and 3) the record reflected no evidence of racial animus or hostility toward plaintiff.

[09/01] Smith v. Selma Cmty. Hosp.
In plaintiff's successful suit against a hospital to have his hospital privileges reinstated, trial court's denial of his motion for attorney fees is reversed and remanded where: 1) when the conditions contained in section 809.9 are shown, the prevailing party is entitled to attorney fees; 2) the statutory phrase "frivolous, unreasonable, without foundation, or in bad faith," set forth separate grounds for an award of attorney fees; 3) the terms "frivolous," "unreasonable" and "without foundation" are objective standards that might overlap; 4) the term "bad faith" is a subjective standard concerned with a defendant's motives for defending or litigating a lawsuit; and 5) because a defendant's subjective state of mind is usually proven by circumstantial evidence, a defendant's prelitigaton conduct and postlitigation conduct are relevant evidence from which inferences can be drawn regarding its motives in defending or litigating a lawsuit.

[08/31] Wickens v. Shell Oil Co.
In plaintiffs' suit against Shell Oil under Indiana's Underground Storage Tank Act, claiming that Shell Oil was liable for the contamination on a plot of land where plaintiffs' shoe store was located, district court's grant of most of the plaintiffs' requests for corrective actions costs and attorney's fees is affirmed in part, reversed in part and remanded where: 1) without a better showing from the plaintiffs' attorney, the court will assume that the district court did its job properly when it decided to award $37,443.25 in litigation costs and disbursements; 2) there is no error in ordering Shell to pay for the corrective action costs incurred in May and June 2007; 3) district court did not abuse its discretion in denying the attorney's request for prejudgment interest; 4) district court did not abuse its discretion in denying Shell's Rule 60(b) motion; and 5) district court's judgment is reversed and remanded insofar as it miscalculated when it deducted the attorney's wife's fees from the attorneys' fees award.

[08/31] Cotchett, Pitre & McCarthy v. Universal Paragon Corp.
In defendant's suit against a law firm, claiming that an arbitrator's award of $7,554,149.13 in attorney fees and expenses for the law firm, related to its representation of defendant in an underlying complex environmental litigation, is unconscionable and violates public policy, superior court's affirmance of the award is affirmed as, assuming that defendant's claim of unconscionability is subject to judicial review as a predicate for determining whether the arbitration award violates public policy, the claim is rejected on the merits as neither the fee agreement nor the award actually issued by the arbitrator is unconscionable under rule 4-200 of the Rules of Professional Conduct.

[08/30] Metavante Corp. v. Emigrant Savings Bank
In plaintiff's suit for breach of contract against defendant-bank for nonpayment of fees under the parties' Technology Outsourcing Agreement, judgment of the district court is affirmed where: 1) an expert's testimony was both relevant and reliable; 2) district court correctly determined that plaintiff did not breach the Agreement's performance warranty and its duty of good faith; 3) district court did not err in concluding that any reliance by defendant on the alleged misrepresentations of plaintiff was not reasonable; 3) district court committed no reversible error in determining that defendant's fraud claims were without merit; 4) district court determined correctly that defendant's success on the in-house issue does not render it a "prevailing party" within the meaning of the contract; and 5) the district court acted within the bounds of its discretion in determining that no additional guarantee of reasonableness was required.

[08/30] Flood v. ClearOne Communications, Inc.
In defendant's appeal from a preliminary injunction requiring defendant-corporation to advance attorney fees and costs to its former CEO, who was then facing a criminal trial, the order is vacated where the district court misread the parties' contract as a matter of law, disregarding express conditions to advancement specified in their agreement.

[08/27] Garcia v. Gomez
In plaintiff's suit against a hospital and a treating physician for the death of plaintiff's mother from a pulmonary embolism following surgery, court of appeals' affirmance of trial court's dismissal of the suit and denial of defendants' motion for attorney's fees is reversed and remanded where: 1) there is some evidence of reasonable attorney's fees and some evidence that the physician incurred attorney's fees; 2) section 74.351(b) mandates an award of attorney's fees and costs, when expert reports are not served timely.

[08/27] Transcon. Ins. Co. v. Crump
In plaintiff's suit against her deceased husband's insurer for workers' compensation death benefits, the judgment of the court of appeals is reversed and remanded where: 1) the treating physician's opinion was based on a reliable foundation and, therefore, legally sufficient evidence supports the jury's verdict; 2) the trial court's omission of the but-for component in the jury charge constitutes reversible error; and 3) an insurance carrier is entitled to have a jury determine the disputed amount of reasonable and necessary attorney's fees for which it is liable.

More...

Ethics & Disciplinary

More...

Legal Malpractice

[08/26] Florida Bar v. Hall
In an attorney's disciplinary proceedings, arising from forgery and fraudulent recording of a lease agreement and agreement for sale between the attorney and property owners, a referee's recommendation of a ninety-day suspension is approved in part and disapproved in part where: 1) referee's finding of fact, recommendations of guilt, and award of costs are affirmed; 2) referee's reliance on Standard 7.0 is disapproved and instead Standard 5.0 should be applied; and 3) referee's recommendation of a ninety-day suspension is unsupported, as after considering the factual findings, the totality of misconduct, case law, and the Standards, disbarment is the appropriate sanction.

[06/25] JUNG v. MUNDY, HOLT & MANCE, P.C.
Plaintiff's malpractice claim was not barred by the statute of limitations, because wrongful litigation brought by attorneys against a client constitutes a continuing tort.

[05/27] ABASSI v. WELKE
The trial court may sua sponte entertain a second summary judgment motion following its denial of a previous summary judgment motion notwithstanding subdivision (e) of Code of Civil Procedure section 1008.

[05/26] ABASSI v. WELKE
The trial court may sua sponte entertain a second summary judgment motion following its denial of a previous summary judgment motion notwithstanding subdivision (e) of Code of Civil Procedure section 1008.

[05/21] KAEMPE v. MYERS
Plaintiff's claim for conversion of patent rights was properly dismissed because no such conveyance occurred. As he neglected to provide expert testimony establishing the applicable standard of care, his legal malpractice claim fails as well.

[04/23] VINER v. SWEET
Damages award is vastly reduced in light of the California Supreme Court's holding that a plaintiff in a transactional malpractice action must show that but for the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more favorable result.

[04/22] AGUILAR v. LERNER
Once a client files a malpractice lawsuit against his or her former attorney, the client waives any rights under the mandatory fee arbitration act. Accordingly, the arbitration provisions of the retainer agreement were properly deemed enforceable.

[04/19] ZAMOS v. STROUD
An attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause.

[04/16] ROSEN CONSTR. VENTURES, INC. v. MINTZ, LEVIN, COHN, FERRIS, GLOVSKY & POPEO, P.C.
An adverse party's alleged breach of a contract is not necessarily sufficient to put a client on notice that his attorney negligently drafted the contract; a reasonable factfinder could conclude that the relevant date for statute of limitations purposes is the date plaintiff lost its breach of contract case against the adverse party. There is thus a genuine issue of fact regarding when plaintiff's malpractice claim accrued.

More...

Professional Malpractice

[08/27] Garcia v. Gomez
In plaintiff's suit against a hospital and a treating physician for the death of plaintiff's mother from a pulmonary embolism following surgery, court of appeals' affirmance of trial court's dismissal of the suit and denial of defendants' motion for attorney's fees is reversed and remanded where: 1) there is some evidence of reasonable attorney's fees and some evidence that the physician incurred attorney's fees; 2) section 74.351(b) mandates an award of attorney's fees and costs, when expert reports are not served timely.

[08/27] In re Columbia Valley Healthcare Sys. , LP
In plaintiffs' medical malpractice suit, defendant's petition for a writ of mandamus, challenging the trial court's denial of defendant's motion to disqualify plaintiffs' counsel because of its employment of a legal assistant, is conditionally granted as, because the legal assistant's employer did not take effective reasonable steps to shield the assistant from working on this case, and the assistant actually worked on the case at her employer's directive, disqualification is required and the trial court is directed to grant the defendant's motion to disqualify and recuse plaintiffs' counsel.

[08/26] Florida Bar v. Hall
In an attorney's disciplinary proceedings, arising from forgery and fraudulent recording of a lease agreement and agreement for sale between the attorney and property owners, a referee's recommendation of a ninety-day suspension is approved in part and disapproved in part where: 1) referee's finding of fact, recommendations of guilt, and award of costs are affirmed; 2) referee's reliance on Standard 7.0 is disapproved and instead Standard 5.0 should be applied; and 3) referee's recommendation of a ninety-day suspension is unsupported, as after considering the factual findings, the totality of misconduct, case law, and the Standards, disbarment is the appropriate sanction.

[08/25] Giacometti v. Aulla, LLC
In employees' suit for professional negligence against an accounting firm, claiming that the firm negligently or fraudulently over-reported income on their W-2 forms by including tip money taken by the restaurant managers as income to the employees, trial court's order sustaining the demurrer to the employees' second amended complaint against the firm for professional negligence without leave to amend is affirmed where: 1) there are no allegations in the charging complaint that the accountants knew that the restaurant's representation of employees' income was wrong at the time they prepared these documents, and there are no allegations that the accountants were hired to calculate, or in fact did calculate, employees' income for purposes of year-end reporting; and 2) the accountants did not owe the employees a duty of care under the negligence theory alleged in the second amended complaint.

[08/23] Ruiz v. Podolsky
In a medical malpractice and wrongful death suit brought by decedent's wife and children against an orthopedic surgeon and other health care providers, judgment of the court of appeal is reversed and remanded as, in accordance with the intent of the Legislature that enacted Code of Civil Procedure section 1295 and related statutes, all wrongful death claimants are bound by arbitration agreements entered into pursuant to section 1295, at least when, as here, the language of the agreement manifests an intent to bind these claimants.

[08/23] Morton v. Thousand Oaks Surgical Hosp.
In plaintiffs' suit against a hospital and physicians alleging a cause of action for negligent infliction of emotional distress (NEID), arising from their mother's surgery for a sigmoid colon resection, trial court's dismissal after sustaining a demurrer to plaintiffs' cause of action for NIED is affirmed as plaintiffs' allegation, that they were "experienced in the medical field and understood and appreciated the dangers faced by their mother" in the event remedial action was not taken, is insufficient to establish that plaintiffs knew and appreciated the medical circumstances affecting their mother.

[08/13] Abcarian v. McDonald
In plaintiff's suit against a university and number of its employees, claiming that defendants' reporting of a settlement of a medical malpractice claim against him to state and national professional authorities violated his constitutional rights, district court's denial of plaintiff's motion to reconsider its judgment of dismissal of the case is affirmed as plaintiff's own complaint shows that the defendants merely complied with legal requirements for filing notices of medical malpractice settlements with federal and state authorities, and by filing those notices, defendants did not violate plaintiff's free speech rights or his rights to equal protection of the law and due process of law.

[08/06] Csiszer v. Wren
In an action against the hospital and obstetrician that provided care to a mother during the birth of their daughter, claiming that negligent care during the delivery was the proximate cause of the daughter's cerebral palsy, judgment for defendants is affirmed where: 1) the objectionable portions of defense counsel's argument, as well as any evidence presented concerning the financial aspects of the daughter's care and treatment, were rendered irrelevant by the jury's verdict in the defendants' favor on liability; and 2) the Arkansas statute setting forth the elements that a medical malpractice a plaintiff must prove through expert testimony did not burden plaintiffs' fundamental rights.

[08/02] Haworth v. Superior Court
In a female patient's suit against her physician for negligence in performing plastic surgery on her lip, court of appeal's affirmance of the superior court's order vacating an arbitration award in favor of the physician on the ground that the neutral arbitrator had failed to disclose a matter "that could cause a person aware of the facts to reasonably to entertain a doubt that the...neutral arbitrator would be able to be impartial," is reversed as the neutral arbitrator, a former judge of the superior court, was not required to disclose to the parties the circumstances that 10 years earlier, he received a public censure based upon his conduct toward and statements to court employees, which together created "an overall courtroom environment where discussion of sex and improper ethnic and racial comments were customary."

More...