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in 2005, the plaintiff in this matter, Ralph Colombo, was sued by his homeowners association, Nellie Gail Ranch Owners Association (Nellie Gail), in Orange County Superior Court. In March 2007, Nellie Gail obtained a judgment and injunction preventing Colombo from continuing construction of certain improvements on his property until he obtained approval for, and completed the construction of, a single-family residence. Colombo's attorney withdrew from the case in September 2008, and Colombo began to represent himself. Colombo's request to sue his attorneys for legal malpractice was denied by the superior court, as was his motion for reconsideration of that request. The Court of Appeal denied extraordinary relief. Undaunted, the vexatious litigant asked a different presiding judge to give him leave to file the identical legal malpractice complaint. This time, his request was granted and the action at issue here was filed. The trial court granted a defense motion for judgment on the pleadings and dismissed the action. The Court of Appeal held that as a matter of both substantive legal doctrine and fundamental fairness, litigants are only entitled to "one bite at the apple. But this vexatious litigant refuses to stop biting." The Court concluded the doctrine of res judicata precludes a litigant from filing successive prefiling requests, and therefore affirmed the judgment. View "Colombo v. Kinkle, Rodiger & Spriggs" on Justia Law

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The Idaho Board of Licensure of Professional Engineers and Professional Land Surveyors (the Board), through its executive director, Keith Simila, brought disciplinary proceedings against Chad Erickson for allegedly violating certain statutes and rules governing the surveying profession. Following an administrative hearing, the Board found that Erickson violated a number of the statutes and rules alleged and revoked his license as a professional land surveyor. Erickson appealed the revocation of his license to the district court. The district court upheld the Board’s finding that Erickson had committed certain violations; however, the district court reversed the portion of the Board’s Order revoking Erickson’s license and remanded the matter for further consideration of the appropriate sanction. Erickson appealed the district court’s decision, arguing that the evidence did not support the Board’s finding of any violations. In addition, Erickson argued numerous procedural errors made by the Board mandated reversal. The Idaho Supreme Court reversed, finding the Board's October 28, 2015 complaint against Erickson was time barred by IDAPA 10.01.02.011.01 and Idaho Code section 54-1220(2); the Board was aware of the allegations against him beginning in 2011, more than four years prior to the submission of the Executive Director’s complaint against him. "The failure to comply with a statute of limitations is jurisdictional and, therefore, this issue is dispositive." Accordingly, the district court’s Substituted Judicial Review Opinion was reversed and the Board’s Order was vacated because it was made upon unlawful procedure. View "Erickson v. Idaho Board of Licensure of Professional Engineers & Professional Land Surveyors" on Justia Law

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David Kosmann appealed a district court judgment relating to a dispute that arose from the sale of real property. He claimed the district court erred in enforcing an oral settlement agreement reached in mediation between Kosmann, Kevin Dinius, and Dinius & Associates, PLLC (collectively “Dinius”). Kosmann also argued the trial court erred in: (1) awarding attorney fees to Dinius as a sanction against Kosmann and his attorney; (2) declining to impose sanctions against Dinius and his attorney; and (3) striking an untimely memorandum and declaration in support of his motion to reconsider. After review of the trial court record, the Idaho Supreme Court affirmed in part and reversed in part. The Supreme Court determined the district court did not err in enforcing the settlement agreement; the court also did not err in declining to impose sanctions against Dinius on ethics violations. However, the Supreme Court determined the district court abused its discretion in imposing I.R.C.P. 11 sanctions against Kossman and his counsel: the district court did not act consistently with the applicable legal standard for imposing sanctions pursuant to I.R.C.P. 11(b). The Supreme Court declined to address all other issues Kossman raised, and determined he was not entitled to attorney fees on appeal. "The record in this case is so tarnished with questionable conduct that it has presented this Court with a vexing ethical and legal dilemma. While we are gravely concerned over the potential ethical lapses which allegedly occurred during the mediation of this matter, there are no findings in the record concerning these matters. Therefore, as the trial court determined, we will leave to the Idaho State Bar, if properly called upon, the responsibility to investigate this matter further and make the necessary findings and conclusions as to the ethical issues presented." View "Kosmann v. Dinius" on Justia Law

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The ethical mandate in N.J.S.A. 40A:9-22.5(d), prohibiting planning and zoning board members from hearing cases when cases of personal interest "might reasonably be expected to impair [their] objectivity or independence of judgment," was at the heart of this appeal. The Conte family filed an application to develop three lots in the City of Garfield. The issue raised was whether any members of the Garfield Zoning Board of Adjustment had a disqualifying conflict of interest because of the involvement of certain Conte family members in the Zoning Board proceedings. The Piscitellis objected to the development project and claimed that a conflict of interest barred Zoning Board members who were employed or had immediate family members employed by the Board of Education from hearing the application. The Piscitellis also contended that any members who were patients or who had immediate family members who were patients of the Contes also had a disqualifying conflict. No Zoning Board member disqualified himself or herself on conflict-of-interest grounds. The New Jersey Supreme Court reversed and remanded the case for further proceedings, namely for the trial court to make findings of whether any Zoning Board member had a disqualifying conflict of interest in hearing the application for site plan approval and variances in this case. View "Piscitelli v. City of Garfield Zoning Board of Adjustment" on Justia Law

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The Supreme Court remanded this case to the trial court for a redetermination of attorney's fees consistent with the Court's decision in Rohrmoos Venture v. UTSW DVA Healthcare, LLP, __ S.W.3d __ (Tex. 2019), also decided today, holding that, having clarified the law governing the award of attorney's fees, remand was necessary. Plaintiff brought a suit against Defendant for unpaid legal fees. The jury awarded the amount sought to Plaintiff. Plaintiff also sought attorney's fees pursuant to Tex. Civ. Prac. & Rem. Code 38.001. After hearing expert testimony about the reasonableness and necessity of the attorney's fees, the jury awarded attorney's fees. Defendant filed a motion for judgment notwithstanding the verdict, arguing that the evidence was legally insufficient to support the fee award. The trial court denied the motion, and the court of appeals affirmed. The Supreme Court reversed and remanded the case to the trial court for a redetermination of attorney's fees consistent with its decision in Rohrmoos Venture. View "Barnett v. Schiro" on Justia Law

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Judge Jesse Burton of the Southern District of Coahoma County, Mississippi Justice Court, filed an affidavit claiming his former girlfriend had stolen money and personal property from him. Based on this affidavit, another justice court judge issued an arrest warrant for Judge Burton’s girlfriend, Regina Burt. But before the warrant was served, Judge Burton changed his mind and instructed the clerk’s office to rescind the warrant that the other judge had issued. As directed, the deputy clerk replaced Judge Burton’s girlfriend’s name on the warrant with Jane Doe and instructed the sheriff’s office not to execute it. Acting on a complaint from Burt, on August 29, 2018, the Mississippi Commission on Judicial Performance filed a formal complaint against Judge Burton, who cooperated and entered an agreed stipulation of facts with the Commission: Judge Burton agreed he committed misconduct when he ordered a deputy clerk to rescind his former girlfriend’s arrest warrant, and agreed he violated Canons 1, 2A, 2B, 3B(1), 3B(2), and 3E(1) of the Code of Judicial Conduct of Mississippi and Mississippi Code Section 97- 11-1. The parties’ agreement included the Commission’s recommended sanction of a public reprimand and $500 fine. After review, the Mississippi Supreme Court agreed with the Commission’s findings and recommended sanction. View "Mississippi Commission on Judicial Performance v. Judge Jesse Burton" on Justia Law

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The Yakima County clerk was ordered by a superior court judge to procure a supplemental bond to maintain her elected office. The court warned that failure to comply would result in the court declaring the office vacant. The clerk sought a writ of prohibition from the Washington Supreme Court to prevent enforcement of the superior court's order. The Supreme Court denied the writ: the superior court judge did not exceed the court's jurisdiction by issuing the supplemental bond order; the clerk could have availed herself of "a plain, speedy and adequate remedy at law - an injunction. Thus, prohibition will not lie." View "Riddle v. Elofson" on Justia Law

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The Supreme Court reversed the judgment of the district court granting summary judgment in favor of Defendant on the ground that Plaintiff's cause of action was time barred by the statute of limitations for professional negligence under Neb. Rev. Stat. 25-222, holding that the district court erred in concluding that a massage therapist is a professional under section 25-222 and in granting summary judgment on that ground. Plaintiff, a customer of Defendant, a massage therapy establishment, alleged that Defendant's employee, a licensed massage therapist, improperly compressed a nerve on Plaintiff's neck, causing her to become unconscious, fall out of the massage chair, and sustain injuries. Plaintiff filed suit against Defendant, alleging that her injuries were caused by Defendant's negligence as the massage therapist's employer. The district court dismissed the complaint, concluding that Plaintiff's claim was time barred by the application of section 25-222. The Supreme Court reversed, holding that the district court erred by finding that massage therapy is a "profession" within the meaning of section 25-222. The Supreme Court remanded the cause to the district court. View "Wehrer v. Dynamic Life Therapy & Wellness, P.C." on Justia Law

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The Supreme Court affirmed the judgment of the district court granting Defendants' motions to dismiss Plaintiff's petition alleging that Defendants - medical providers and facilities - committed negligence and medical malpractice resulting in a patient's wrongful death, holding that Plaintiff failed to meet the evidentiary standard required when responding to a motion to dismiss with facts outside the pleadings. In dismissing Plaintiff's petition, the district court found that the petition was filed one day after the statute of limitations had expired. On appeal, Plaintiff argued that her attorney electronically submitted the petition for filing before the statute of limitations ran and promptly responded when the petition was returned because of an electronic filing issue. The Supreme Court affirmed, holding that no evidence in the record supported Plaintiff's factual assertion that her counsel timely submitted the same petition as the one eventually file stamped by the clerk. Therefore, the Court could not reach the substance of Plaintiff's argument that a document is filed for purposes of the statute of limitations when uploaded to the electronic filing system rather than when the clerk of court accepts and file stamps it. View "Lambert v. Peterson" on Justia Law

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Over seven years, Dr. Greenspan referred more than 100,000 blood tests to Biodiagnostic Laboratory, which made more than $3 million off these tests. In exchange, the Lab gave Greenspan and his associates more than $200,000 in cash, gifts, and other benefits. A jury convicted Greenspan of accepting kickbacks, 42 U.S.C. 1320a-7(b)(1)(A); using interstate facilities with the intent to commit commercial bribery, 18 U.S.C. 1952(a)(1), (3); honest-services wire fraud, 18 U.S.C. 1343, 1346; and conspiracy to do all of those things. The Third Circuit affirmed, characterizing the evidence of his guilt as overwhelming. The district court erred in instructing the jury that Greenspan had to “demonstrate” the prerequisites for an advice-of-counsel defense; in excluding as hearsay some of his testimony about that legal advice; in asking only Greenspan’s counsel, not Greenspan personally, whether he wished to speak at sentencing; and in limiting the scope of the defense to five particular agreements rather than all eight, but all of those errors were harmless. The court properly excluded evidence that the blood tests were medically necessary. That evidence was only marginally relevant and risked misleading the jury. View "United States v. Greenspan" on Justia Law