Justia Professional Malpractice & Ethics Opinion Summaries

Articles Posted in US Court of Appeals for the Eighth Circuit
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In 2015, Elite sued Legacy for breach of contract. Attorney Bredahl received a $5,000 check from Legacy. On December 30, 2015, and February 26, 2016, he appeared on behalf of Legacy in the Elite suit. Bredahl did not respond to discovery, resulting in an order banning Legacy from putting on evidence at trial. Legacy later retained Hankey Law but neither Legacy nor any defense counsel attended the March 2017 trial. Elite won a $1 million judgment. Elite and Legacy settled the suit for $575,000 in 2018.In October 2017, ALPS issued an insurance policy to Bredahl with loss inclusion starting October 1, 2016. In January 2018, Legacy notified ALPS of a potential claim. Legacy sued Bredahl in April 2019. Bredahl notified ALPS, which indicated that it would defend that suit subject to a complete reservation of rights, then sought a declaratory judgment that the Policy did not apply to the Legacy suit.The district court held that ALPS had no duty to indemnify or defend Bredahl. The Eighth Circuit affirmed. The Policy does not apply to the Legacy suit if the “Insured” knew or reasonably should have known, as of the October 1, 2017 effective date, that his conduct during the Elite suit might be the basis for a “demand for money” against him. Before that date, Bredahl knew of acts or omissions in the Elite suit and reasonably should have known Legacy might bring a claim against him, View "ALPS Property & Casualty Insurance Co. v. Legacy Steel Building, Inc." on Justia Law

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The Eighth Circuit affirmed the district court's grant of summary judgment to HHW and DKH in an action brought by plaintiff, alleging professional malpractice and negligence. The court concluded that the district court did not err in ruling that the "Q" deduction did not apply to the estate return in January 2013, and DKH was not professionally negligent in failing to claim the deduction. Furthermore, the district court did not err in ruling that a certified public accountant was not negligent in failing to wait to file the return until the amendment was enacted.The court also concluded that the district court properly granted summary judgment on plaintiff's legal malpractice claim; the district court did not abuse its discretion in failing to sua sponte extend discovery deadlines to allow plaintiff to submit another expert affidavit; and the district court properly granted summary judgment on the aiding and abetting claim, as well as the RICO claim. Finally, the district court did not err in ruling that questions -- regarding whether an individual, who was not a party in this case, breached a fiduciary duty and whether the district court should declare specific rental rates -- were not at issue and denying summary judgment. View "Schreier v. Drealan Kvilhaug Hoefker & Co." on Justia Law

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Dat was born in a Kenyan refugee camp in 1993. Admitted to the U.S. around 1994, he became a lawful permanent resident. Dat pled guilty to robbery, 18 U.S.C. 1951, and was sentenced to 78 months' imprisonment. Dat’s robbery conviction is a deportable offense, 8 U.S.C. 1227(a)(2)(A)(iii). Dat moved to vacate his guilty plea, claiming that his attorney, Allen, assured him that his immigration status would not be affected by his plea. Allen testified that she repeatedly told Dat the charges were “deportable offenses,” that she never told him, his mother, or his fiancée that he would not be deported. that she encouraged Dat to hire an immigration attorney, and that they reviewed the Plea Petition, which says that non-citizens would be permanently removed from the U.S. if found guilty of most felony offenses. The Plea Agreement refers to immigration consequences. Dat and Allen also reviewed the PSR, which stated that immigration proceedings would commence after his release from custody.The Eighth Circuit affirmed the denial of relief, finding that Dat was not denied effective assistance of counsel. It was objectively reasonable for Allen to tell Dat that he “could” face immigration ramifications that “could” result in deportation. An alien with a deportable conviction may still seek “relief from removal. These “immigration law complexities” should caution any defense attorney not to advise a defendant considering a guilty plea that the result of a post-conviction, contested removal proceeding is certain. View "Dat v. United States" on Justia Law

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The Eighth Circuit affirmed the district court's entry of a $356,619.30 judgment in favor of the Estate of Joyce Rosamond Peterson against Defendants Bitters and Henry. Bitters, a financial advisor, advised Petersen to withdraw $150,000 from her annuities and to loan it to another client of his, Henry.The court rejected Bitters' assertion that the Estate's fraud and breach-of-fiduciary-duty claims were time-barred, and that the district court erred by instead instructing the jury to apply the four-year limitations period for claims of negligence and fraud. The court held that any potential error did not affect Bitters' substantial rights. The court also held that the district court had a duty to make the damages award conform to the law, and did not abuse its discretion by preventing the Estate from recovering twice for a single, indivisible injury; the evidence was insufficient to provide the jury with a reasonably certain basis for calculating pain-and-suffering damages; because it was clear at the Rule 50 hearing that the claims for negligence and breach of fiduciary duty under Nebraska law were identical, the district court did not err by dismissing the Estate's negligence claim; and summary judgment to Defendant Boland was not erroneous because there was no genuine dispute of material fact as to whether Bitters and Boland had entered into a partnership. View "Estate of Joyce R. Petersen v. Bitters" on Justia Law

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The Eighth Circuit affirmed the district court's grant of summary judgment to defendant in an action brought by plaintiffs and Glow Hospitality alleging claims against defendant, an attorney, for fraud and breach of fiduciary duties. Plaintiffs also alleged a vicarious liability claims against defendant's law firm.Count I is premised on a factually-complex relationship and intertwined history and on allegations that defendant failed to disclose information, failed to investigate, made false statements to the state court, and, primarily, engaged in dual representation. The court held that the district court correctly granted summary judgment, because Glow failed to support Count I, which lies outside the jury's common knowledge, with expert testimony. Count II alleged that defendant breached his fiduciary duties to Glow by failing to conduct further investigation into Glow's ownership interests, failing to update his opinion letter to First National, making false representations in his affidavits to the state court, and negligently overseeing the operation of Glow. The court held that Minn. Stat. 544.42 applies to Count II, and Glow's failure to comply with section 544.42's affidavit requirements mandated dismissal of this claim. Finally, the court held that the fraud claims were property dismissed, summary judgment on the aiding and abetting claim was proper, and the vicarious liability claims failed. View "Sandhu v. Kanzler" on Justia Law

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Dr. Solman performed arthroscopic surgery on Grussing’s knee in June 2014. At her July 9 appointment, Grussing reported swelling in her knee to a physician's assistant, who recommended physical therapy. Dr. Solman did not examine Grussing. Grussing returned to Dr. Solman’s office on July 18, again reporting pain and swelling. Dr. Solman aspirated Grussing’s knee, observed that the synovial fluid looked normal, and did not test the fluid for infection. Grussing continued to experience pain and swelling. In October, a different physician aspirated Grussing’s knee and sent the fluid for analysis. The knee was chronically infected. Grussing underwent a total knee replacement. The primary issue in Grussing’s malpractice suit was whether Dr. Solman breached the standard of care when he decided not to test the synovial fluid aspirated during her July 18, appointment. Grussing opened her case with Dr. Solman’s deposition testimony; he acknowledged that fluid that does not appear cloudy can test positive for bacterial infection. The defense’s expert, Dr. Matava testified that there was no way to confirm that Grussing’s knee was infected on July 18. The Eighth Circuit affirmed a defense verdict, rejecting arguments that the district court erroneously limited Grussing’s cross-examination of Matava during an attempt to elicit testimony that fluid that is not cloudy can test positive for bacterial infection and that it failed to correct defense counsel’s misstatement of law during closing argument. The correct burden of proof was properly emphasized throughout trial. View "Grussing v. Orthopedic and Sports Medicine, Inc." on Justia Law