Justia Professional Malpractice & Ethics Opinion Summaries

Choice Hotels sued SBQI, its managers, and investors, for breach of a franchise agreement. The defendants did not answer the complaint. The court entered a default. One defendant, Chawla, an Illinois attorney, had represented the others. Other defendants asked Chawla to find a new attorney. They claimed that they had been unaware that their signatures were on the franchise agreement and that the signatures are forgeries. Johnson agreed to try to vacate the default, negotiate a settlement, and defend against the demand for damages. Johnson filed an appearance and took some steps, but did not answer the complaint or move to vacate the default, engage in discovery concerning damages, or reply to a summary judgment motion on damages. In emails, Johnson insisted that he was trying to settle the litigation. He did not return phone calls. The court set damages at $430,286.75 and entered final judgment. A new attorney moved to set aside the judgment more than a year after its entry, under Fed. R. Civ. P. 60(b)(6), which covers “any other reason that justifies relief” and requires “extraordinary circumstances.” The Seventh Circuit affirmed. The defendants must bear the consequences of their inaction. They were able to monitor the proceedings, but did not follow through. View "Choice Hotels Int'l Inc. v. Grover" on Justia Law

Moje, playing minor league hockey, lost an eye during a game, and sued Oakley, which made his visor, and the League. Instead of notifying its insurer, the League hired LoFaro. Oakley’s attorney called the League’s President, to ask why it had not answered the complaint. LoFaro claimed that an answer had been filed, but the docket did not reflect any filing. Moje moved for default. LoFaro did not respond, nor did he respond after the court entered the default and permitted Moje to prove damages. The court entered a final judgment of $800,000 against the League. After the League learned of collection efforts, it notified its insurer. A lawyer hired by the insurer unsuccessfully moved, under Fed. R. Civ. P. 60(b)(1) to set aside the judgment within six months of its entry. Rule 60(b)(1), allows relief on account of “mistake, inadvertence, surprise, or excusable neglect.” The Seventh Circuit affirmed. Abandoned clients who take reasonable steps to protect themselves can expect to have judgments reopened under Rule 60(b)(1), but the League is not in that category. Its remedy is against LoFaro. View "Moje v. Federal Hockey League LLC" on Justia Law

This was a legal malpractice case. Defendant Michelle Myer-Bennett filed a peremptory exception of peremption asserting plaintiff Tracy Lomont filed her malpractice claim beyond the three-year peremptive period set forth in La. R.S. 9:5605. Lomont opposed the exception, arguing the peremptive period should not have applied because Myer-Bennett engaged in fraudulent behavior which prevented application of the peremptive period. Lomont hired Myer-Bennett to represent her in a divorce and related domestic matters, which included partitioning the community property. Citibank obtained a default judgment against John Lomont (the ex-husband) on a delinquent account. Citibank recorded the judgment in the mortgage records in Jefferson Parish as a lien against the home. Lomont attempted to refinance the mortgage on the home and learned from the bank that the settlement agreement, giving her full ownership of the home, was never recorded in the mortgage and conveyance records. Lomont contacted Myer-Bennett to advise her of the problem. According to Myer-Bennett, because it was her standard practice to record such documents, she initially believed Lomont was given inaccurate information by the bank. Upon investigation, Myer-Bennett discovered that she had not recorded the agreement. Myer-Bennett recorded the agreement the next day, September 30, 2010. In December 2010, Lomont was notified that her application to refinance the loan was denied because of Citibank’s lien on the property. According to Myer-Bennett, once she became aware of the Citibank lien she discussed with Lomont the fact she committed malpractice and gave Lomont several options to proceed, including hiring another lawyer to sue her, or allowing Myer-Bennett to file suit against John Lomont and/or Citibank to have the lien removed. Myer-Bennett stated. Lomont chose not to pursue a malpractice action, but wanted defendant to fix the problem. Lomont denied Myer-Bennett ever notified her she had committed malpractice. Lomont contended Myer-Bennett never mentioned malpractice in December 2010, but simply advised she would have the Citibank lien removed from the property by filing lawsuits against John Lomont and Citibank. The district court sustained the exception of peremption and the court of appeal affirmed. Based on the facts of this case, the Supreme Court found defendant committed fraud within the meaning of La. R.S. 9:5605(E). Thus, the peremptive periods contained in La. R.S. 9:5605 were not applicable and plaintiff’s legal malpractice claim was governed by the one-year prescriptive period in La. C.C. art. 3492. Further, the facts of this case supported an application of the doctrine of contra non valentem. Because the Court found plaintiff filed suit within one year of discovering defendant’s malpractice, the Court held the lower courts erred in sustaining defendant’s exception of peremption. View "Lomont v. Myer-Bennett" on Justia Law

Pro se plaintiff George Farmer, a resident of Colorado and a licensed attorney, sued defendant Banco Popular under federal and state law to challenge Banco’s demand that he pay off the full amount owed under a $150,000 Home Equity Line of Credit (HELOC) his deceased father obtained in 2001. In 2012, the parties informed the district court they had reached a settlement: Banco was to pay Farmer $30,000 and forgive some principal, unpaid interest, and attorney’s fees. Farmer would pay $137,380.94 in satisfaction of the HELOC, due later that year. Farmer “began to negotiate a number of the . . . terms of the draft agreement.” Banco “sent Farmer the completed settlement agreement, but Farmer sought changes to the exhibits.” These exhibits included a deed in lieu of foreclosure and a satisfaction of mortgage. After Farmer received the revised exhibits he still would not sign the settlement agreement, but “again sought more changes, including the amount, timing, and structure of the payment.” Banco ultimately filed a motion to enforce the settlement agreement. Notwithstanding his prior representations to the court, Farmer sought to reduce his net payment of $107,380.34 under the terms of the agreement to $100,000, but pay it by October 1 rather than by October 15. The court held another hearing on September 10 at which Farmer again told the court the settlement was fine: “‘[W]e are all in agreement to enforce the settlement,’ and ‘the only thing that remains is the date that my payment is due.’” The parties then agreed that Banco would not pay Farmer $30,000 as previously agreed, but instead, Farmer would pay Banco $107,380.34 by November 15, 2012. “Banco Popular sent Farmer an agreement reflecting the new amount and due date, but instead of signing, Farmer asked for changes and additions. Banco Popular refused most of those changes and asked Farmer to sign the revised agreement, which he never did.” A prior Tenth Circuit decision recited, in detail, Farmer’s ongoing conduct that led the district judge to “warn that he would impose the most severe sanctions and penalties if the parties did not comply with his order” enforcing the settlement. "Now here we are again:" Farmer appealed the district court order imposing fees and costs on him as a punitive sanction. The Tenth Circuit affirmed the district court's order, as modified: sanctions imposed on Farmer in the form of fees and costs due and payable to Banco totaled $50,824.53; Farmer was admonished that further prolongation of this appeal absent good cause would result in the Court imposing its own monetary sanctions on him pursuant to Fed. R. App. P. 38. The Clerk of Court was directed to initiate a formal attorney disciplinary proceeding for the Court to consider further whether additional discipline is appropriate. View "Farmer v. Banco Popular" on Justia Law

Richard Pines, D.O. appealed the district court’s decision on a disciplinary order of the Idaho Board of Medicine. The Board brought disciplinary proceedings against Pines following reports that he had induced young men into sexual contact by saying he was required to give full-body massages to naked practice patients in order to be relicensed as a doctor of osteopathy. Following a hearing, the Board found Pines committed four counts of professional misconduct. It revoked Pines’ license and ordered that he pay costs and attorney fees. The district court affirmed the four counts of misconduct but vacated the award of costs and attorney fees. Pines appealed and the Board cross-appealed. Before the Supreme Court, Pines argued: (1) that he was disciplined for uncharged conduct, resulting in a violation of his due process rights; (2) that evidence in the record was insufficient to support certain alleged violations made against him; (3) that as applied, his due process rights were violated by the Board's conclusion that four individuals were Pines' patients. The Board argued that the district court erred in vacating the Board's order on attorney fees and costs. Upon review of the record, the Supreme Court found that two of the "patients" were not, indeed, Pines' patients, and that Pines' due process rights were not violated. The Court affirmed the Board's decision on Counts I and II, but vacated the district court's decision on Counts III and V (which pertained to the two "patients"). The case was remanded for further proceedings, including additional consideration of the issue of costs and fees. View "Pines v. Idaho Board of Medicine" on Justia Law

The Mississippi Commission on Judicial Performance determined that Chancellor Talmadge Littlejohn has violated multiple Canons of Judicial Conduct. In March 2012, Chancellor Littlejohn modified a 2001 Agreed Order of Filiation and Support between Ronald Brooks and Janice Fields, and ordered Brooks to pay Fields $15,000 for an automobile for their child within ninety days, and $1,750 in attorney fees within sixty days. Brooks posted a supersedeas bond, which the chancery clerk approved, and appealed Chancellor Littlejohn’s order to this Court. Because he had posted the supersedeas bond, Brooks did not pay the sums ordered while the appeal was pending. Nevertheless, Fields filed a contempt complaint against Brooks. Chancellor Littlejohn acknowledged that Brooks had posted a supersedeas bond but nevertheless held him in contempt for his failure to pay and ordered him incarcerated until he paid the entire amount of $16,750. Brooks spent three days and two nights in jail. During his incarceration, he filed an emergency appeal with the Supreme Court, and the Court vacated the contempt finding and ordered Brooks released. The Commission filed its complaint against Chancellor Littlejohn, alleging violations of Canons 1, 2A, 3B(2), and 3B(8) of the Code of Judicial Conduct. After a formal hearing, the Commission concluded that Chancellor Littlejohn had committed misconduct, and it recommended that the Supreme Court impose a $500 fine and a public reprimand, and assess costs associated with this proceeding. While the Supreme Court agreed with the Commission that Chancellor Littlejohn committed misconduct, it did not adopt the recommended sanctions. The Court found that Chancellor Littlejohn refused to take responsibility for his misconduct, and the recommended sanctions were not commensurate with sanctions imposed for similar misconduct in past cases. The Court suspended Chancellor Littlejohn from office for thirty days without pay, fined him $1,000, order that he be publicly reprimanded, and taxed him with the costs of these proceedings. View "Miss. Comm'n on Judicial Perf. v. Littlejohn" on Justia Law

This case arose from Credit Management's debt-collection phone calls to plaintiff. On appeal, plaintiff's attorney challenged the district court's referral of his conduct to the disciplinary committee. Credit Management filed a motion to dismiss by requesting sanctions against the attorney under Rule 11, claiming that the attorney knew that the allegations in the complaint were false and frivolous. The district court denied the request for Rule 11 sanctions, holding that sanctions were unavailable because the attorney filed the motion to dismiss first, and thus obviously within twenty-one days of knowing that Credit Management was seeking Rule 11 sanctions. The district court, however, referred the allegation to the Admissions Committee for further review. The court concluded that neither plaintiff nor his attorney has standing to appeal that referral, which was not accompanied by any finding of misconduct. Accordingly, the court dismissed the appeal. View "Zente v. Credit Mgmt." on Justia Law

In 2003, the governors of Cedar Rapids Lodge obtained the rights to build an AmericInn franchise. The company used Lightowler as the project architect. Lightowler used a standard form agreement that specified that its terms would be governed by the law of North Dakota. After changes requested by the Fire Marshal and for compliance with franchise standards, Lightowler submitted revised plans in February, 2004. Construction began in January 2004. In July, 2004, Lidberg of AmericInn led a construction site visit attended by the governors, and Olson, a Lightowler engineer. Lidberg and Olson prepared reports detailing deficiencies. The last act performed by Lightowler on the project was a response to the contractor in September, 2004. Lidberg led a second site visit in October, 2004, produced a report identifying additional deficiencies, and sent it to Siebert and Lightowler. The hotel opened for business in December, 2004, but problems continued. In December, 2009 Cedar Rapids Lodge brought claims against its former governors and others involved in the hotel project and alleging professional negligence by Lightowler. The Eighth Circuit affirmed summary judgment in favor of Lightowler, concluding that the claim was barred by the statute of limitations under either North Dakota or Iowa law. View "Cedar Rapids Lodge & Suites, LLC v. Lightowler Johnson Assocs., Inc." on Justia Law

Plaintiffs Heidi and James Glassford appealed a superior court decision denying their motion for summary judgment and granting it to defendant Dufresne & Associates, P.C. on plaintiffs' claims of negligent misrepresentation and violation of the Vermont Consumer Protection Act (CPA). Plaintiffs were homeowners who purchased their home direct from the builder, D&L Homes by Design, LLC (D&L). D&L hired defendant to certify that the on-site mound sewage disposal system constructed for the home satisfied state permitting requirements. On April 19, 2005, the Vermont Agency of Natural Resources issued a Wastewater System and Potable Water Supply Permit for construction of the sewage disposal system on the property, subject to receiving a certification pursuant to 10 V.S.A 1973(e). On October 20, 2005, defendant's employee sent the certification required by the statute. On December 20, 2005, plaintiffs signed a purchase-and-sale agreement to purchase the home from D&L. Although the seller represented that the home and property had received all the necessary permits, plaintiffs never saw the certificate or the letter from the Agency stating that the certification requirement was satisfied. Sometime thereafter, plaintiffs hired an attorney in connection with the closing. On January 13, just prior, plaintiffs' attorney prepared a certificate of title that noted the wastewater and water supply permit. In February 2006, the sewage disposal system failed. In November 2008, plaintiffs hired defendant to investigate the system's failure because they knew defendant had inspected the system prior to their purchase. Defendant prepared a report stating that he had "completed the original" inspection in 2005 and found the system had been installed according to the permitted design. Plaintiffs received other opinions about the disposal system's failure both before and after hiring defendant to inspect the system. Plaintiffs filed a complaint in superior court alleging pecuniary losses from defendant's failure to properly inspect the sewage disposal system and subsequent misrepresentation about the construction of the system in the certification to the Agency. Upon review of the superior court decision, the Supreme Court found that the completion and filing of defendant's certificate was a prerequisite to D&L's ability to sell the home, the certificate was unrelated to the sale. The law required that it be sent only to the government agency that issued the permit. Furthermore, there was no allegation that D&L used the certificate as part of its sales pitch, and no allegation that defendant had any part in the sales. The standard for CPA liability required that a person be directly involved in the transaction that gave rise to the claimed liability. That standard was not met here. Accordingly, the Court affirmed the superior court's decision. View "Glassford v. Dufresne & Associates, P.C." on Justia Law

Plaintiff retained Defendant to represent her in a criminal matter. After a trial, Plaintiff was found guilty of felony assault and battery. Plaintiff subsequently filed a petition for writ of habeas corpus alleging that she was deprived of her constitutional right to effective assistance of counsel. The habeas court granted the petition and vacated Plaintiff’s conviction, concluding that Defendant’s representation was constitutionally deficient. Plaintiff subsequently pled guilty to misdemeanor assault and battery. Thereafter, Plaintiff filed a legal malpractice claim against Defendant alleging that Defendant’s actions during the original criminal matter constituted malpractice. The circuit court sustained Defendant’s demurrer to the complaint, concluding that Plaintiff failed to state a claim because she was not actually innocent of the criminal act of assault that gave rise to the criminal matter in which the alleged malpractice occurred. The Supreme Court affirmed, holding that Plaintiff failed to satisfy her burden of pleading that the pecuniary injury she sought to recover was proximately caused by Defendant’s legal malpractice, rather than being proximately caused by her criminal actions. View "Desetti v. Chester" on Justia Law