"Retired Arkansas Court of Appeals Judge Andree Layton Roaf of Pine Bluff has tentatively agreed to serve as director of the Office of Desegregation Monitor in the long-running Pulaski County school desegregation case, [United States District Judge Bill Wilson] said Wednesday." Coverage from the The Morning News. Judge Roaf served on the Court of Appeals from 1997 to 2006.
Kim v. Leggett, No. CA-06-1244. The plaintiffs/appellants, the Kims, purchased a trailer park located in Pulaski County, Arkansas for $1.6 million from the defendants/appellees, the Leggetts.
The parties consummated the sale via an "Offer and Acceptance" drafted by the Kims; the Kims paid the sale price in exchange for the "real estate, fixtures, equipment, inventory, trade names, trademarks, leases, rental agreements, and other intangible assets." The contract also contained a warranty:
Seller warrants that the premises will pass inspections necessary to conduct such business at the time physical possession is delivered to the purchaser and all equipment will be in working order.
After the gas-line system servicing the entire park malfunctioned, the City shut off the gas line (and prosecuted the Kims for code violations), and the entire system had to be replaced, the Kims sued the Leggetts for breach of contract.
The Court of Appeals subsequently affirmed the Pulaski County Circuit Judge Barry Sim's grant of summary judgment in favor of the Leggetts, holding that the contract created no duty with respect to the gas-line system. More after the jump.
Continue Reading...The Arkansas Court of Appeals affirmed Union County Circuit Judge Carol Crafton Anthony in Glenn Mechanical, Inc. v. Lucy Gibney, No. CA 06-1169, an unpublished decision by Judge Miller.
In 1998, Lucy Gibney formed an oral contract with Glenn Mechanical, Inc. to perform "plumbing, heating, and air services for the new home she was constructing." Glenn finished the project on October 28, 1999.
Glenn sued Gibney in 2003 for breach, claiming that Lucy had stopped paying for the job. Judge Anthony presided over a bench trial and there was conflicting testimony as to the date of Lucy's last payment; various witnesses identified the date as (a) August 1, 2001, (b) October 4, 2000, or (c) September 4, 2002.
Judge Anthony found that the last payment had been made on October 4, 2000, and dismissed the case based on Arkansas's three-year statute of limitations for breach of an oral contract.
The Court of Appeals affirmed, citing the standard rule that, in a bench trial, "[w]e do not reverse on a factual issue as long as there is evidence to support the trial court's finding and the finding is not clearly against the preponderance of the evidence." The trial court's determination of the date of last payment fell well within the bounds of this rule.
Chanel filed a trademark infringement lawsuit in the Western District of Arkansas: Chanel v. Jacobia, No. 07-3021 (filed 5/23/07). According to the Complaint, two business partners sold counterfeit and infringing items on the website chicboutique4u.com (now inactive). One of the partners is an Arkansas resident, and the goods were distributed in Arkansas. The Complaint seeks monetary damages and injunctive relief.
After unsuccessfully challenging a default judgment entered in a suit filed in Pulaski County Circuit Court, and failing to timely file a notice of appeal, the appellant in Skit International, Ltd v. DAC Technologies of Arkansas, No. 06-3493, filed a diversity suit in the Eastern District of Arkansas. District Judge Leon Holmes dismissed the suit via the Rooker-Feldman doctrine, which "prohibits lower federal courts from exercising appellate review of state court judgments." The Eighth Circuit held, in an opinion written by Circuit Judge Diane Murphy, that: "Skit's federal complaint is in many ways a classic illustration of the cases covered by the Rooker-Feldman doctrine."
One of Skit's arguments was that it had been deprived of appellate review of the state-court judgment. The Eighth Circuit gave this argument short shrift: "we decline to exempt from Rooker-Feldman a party whose appeal was not heard because it was considered untimely."
On recommendation from the Arkansas Bar Association, revised Rule 503(e) and (f) would read:
(e) Inadvertent disclosure. A disclosure of a communication or
information covered by the attorney-client privilege or the work-product
doctrine does not operate as a waiver if the disclosing party follows the
procedure specified in Rule 26(b)(5)(D) of the Arkansas Rules of Civil
Procedure and, in the event of a challenge by a receiving party, the circuit court
finds in accordance with Rule 26(b)(5) that there was no waiver.(f) Selective waiver. Disclosure of a communication or information
covered by the attorney-client privilege or the work-product doctrine to a
governmental office or agency in the exercise of its regulatory, investigative, or
enforcement authority does not operate as a waiver of the privilege or protection
in favor of non-governmental persons or entities.
The comment recognizes that the proposed changes reflect a "selective waiver" of inadvertent disclosure, which is the minority view in American jurisdictions. I would, however, harmonize the Arkansas rule with the Eighth Circuit's rule, perhaps simplifying things for Arkansas practitioners.
The Court has asked for public comments, to be sent the Clerk of the Arkansas Supreme Court and Court of Appeals.
The Arkansas Supreme Court previously remanded this case to settle the record and ordered rebriefing because of a basic problem with appellant's brief: in violation of Rule 6(3) of the Rules of Appellate Procedure--Civil, it did not "contain the pleadings from Heard’s case in the district court, particularly Heard’s complaint, Regions’s answer, the district court’s order granting dismissal, or any of the other pleadings considered by the circuit court in reaching its determination."
The Arkansas Supreme Court has now dismissed the case in Heard v. Regions Bank, No. 06-1040, after the appellant failed to follow up on the Court's order.
The Arkansas Court of Appeals affirmed a denial of a motion to compel arbitration in Hamilton v. Ford Motor Credit Co., No. 06-0838 (5/23/07).
The Hamiltons purchases a Lincoln Navigator from North Point Ford, and the purchase contract was assigned to Ford Motor Credit. The contract contained an arbitration clause that excluded certain claims, including repossession. After the Hamiltons defaulted, Ford filed a replevin action to repossess the vehicle. The Hamiltons moved to compel arbitration, but the trial court denied the request.
The court of appeals affirmed on two grounds. First, the arbitration clause specifically excludes any action to repossess the vehicle. Second, the arbitration clause was mutual because the court determined both parties retained rights that could not be subject to arbitration.
The United States Court of Appeals for the Eighth Circuit recently affirmed the denial of a motion filed by a plaintiff in a nursing home tort suit to intervene in a collateral declaratory judgment action filed by the insurer of the defendant nursing home to determine its obligations with regard to the underlying suit. In Medical Liability Mutual Ins. Co. v. Alan Curtis LLC, et. al., ___ F.2d ___ (8th Cir. May 17, 2007), the court held that the nursing home suit plaintiff lacked the requisite standing to intervene under Rule 24 of the Federal Rules of Civil Procedure.
The Estate of Annie Redden ("Redden") sued Evergreene Properties of North Carolina ("Evergreene"), Alan Curtis Enterprises, Inc. ("Curtis") and other defendants for various causes of action related to the care and treatment of Redden at a nursing home facility managed and/or operated by defendants. Subsequent to the filing of the nursing home litigation, Medical Liability Mutual Insurance Company ("MLMIC"), successor to a policy of insurance issued to Defendant Evergreene by Fireman's Fund INsurance Company, filed a declaratory judgment action seeking a declaration that it had no duty to indemnify or defend the defendants against the nursing home suit. MLMIC asserted that it had no duty to indemnify or defend because the claims asserted by Redden did not occur during the one-year coverage period of the Fireman's Fund policy, since any such claims would be barred by the applicable statute of limitations under Arkansas law.
After MLMIC filed its declaratory judgment action, Redden filed a motion to intervene in that action, asserting a right to intervene both permissibly and mandatorily under Rule 24. In asserting a right to intervene, Redden argued that (1) she had a "property interest" in the lawsuit because she might need to look to MLMIC to satisfy any judgment obtained in the nursing home suit, and (2) she had an interest in any determination the declaratory judgment court may make about the applicable statute of limitations for her claim in the nursing home suit.
In affirming the district court's denial of Redden's motion, the court first cited its standard for determining whether a party may intervene as of right under Rule 24(a)(2): (1) the movant has a cognizable interest in the subject matter of the litigation, (2) that interest may be impaired as a result of the litigation, and (3) the interest is not adequately protected by the existing parties to the litigation, citing Chiglo v. City of Preston, 104 F.3d 185, 187 (8th Cir. 1997). The court concluded that Redden failed the first prong of the test because she had no cognizable interest in the declaratory judgment action. In reaching this conclusion, the court cited its prior case law holding that an interest is "cognizable" under Rule 24(a)(2) only where it is "direct, substantial, and legally protectable," citing United States v. Union Elec. Co., 64 F.3d 1152 (8th Cir. 1995), and that an economic interest in the outcome of the litigation is not itself sufficient to warrant mandatory intervention, citing Curry v. Regents of the Univ., 167 F.3d 420 (8th Cir. 1999). The court observed that the"interest" Redden had in the declaratory judgment action - to insure that the nursing home suit defendants had sufficient resources to satisfy a judgment - was too remote and indirect to qualify as a cognizable interest under Rule 24(a)(2). The court further noted that (1) Redden was neither a party nor an intended beneficiary to the insurance contract, and (2) her interest in any liability of MLMIC to the nursing home suit defendants was contingent not only upon her obtaining a judgment against those defendants, but also being unable to satisfy the judgment against any of the defendants.
The court also rejected Redden's argument for mandatory intervention on the ground that she had an interest in making sure that the appropriate statute of limitations was applied to her claim in the nursing home suit for violation of the Arkansas Residents' Rights Act. In rejecting this argument, the court noted that issue preclusion as to the applicable statute of limitations could not apply against Redden if she is not a party to the declaratory judgment action.
Finally, the court rejected Redden's alternative argument that the district court abused its discretion in failing to allow permissive intervention under Rule 24(b)(2). The court held the district court did not abuse its discretion in determining that the intervention of Redden would cause prejudice and undue delay to the parties to the declaratory judgment action. In further support of its affirmance of the district court's denial of permissive intervention, the court noted that Redden had waited over a year after the filing of the declaratory judgment action to file its motion to intervene.
According to a University of Arkansas -- Fort Smith press release, "Dr. Lynn Lisk, program director and assistant professor in the Legal Assistance/Paralegal program at the University of Arkansas - Fort Smith, has been appointed to the Mock Trial Committee of the Arkansas Bar Association."
Windchimes by Russco has filed a copyright infringement lawsuit against Yi Qiang Glass Crafts Co., Ltd., a Chinese company, and their American affiliates in the Eastern District of Arkansas. See Case No. 07-056, filed 5/11/07 (full Complaint here). According to the Complaint, Russco obtained copyright registrations for two wind chime designs. Yi Quiang infringed these designs in China and then sold the infringing wind chimes in the United States, including Arkansas.
In Danner v. Discover Bank, No. CA06-1052, the Arkansas Court of Appeals adopted the reasoning of the District of Columbia Court of Appeals, and held that the trial court impermissibly required a defendant to prove that certain charges on a Discover account belonged to her, in violation of the Fair Credit Billing Act, 15 U.S.C. 1666.
Discover sued the defendant on the basis that appellant was past due on her account; she "defended by admitting that she had had Discover credit cards in the past, but that she thought she had paid them off and was surprised to have received a demand for payment of the sum sought."
As the defendant, Danner elected to hold Discover to its burden of proof at trial:
She did not expressly deny that the card and charges were hers, but simply stated that she had no recollection and put appellee to its proof. The trial court found in favor of appellee on the basis of its findings that appellant “did not say without question that these were not her charges,” and that payments had been made on the account.
The Court of Appeals agreed with the defendant/appellant that requiring her to prove that the charges were not hers violated the Fair Credit Billing Act, which "places upon the card issuer the burden of proving that any disputed use made of the card was authorized."
In this holding the Court of Appeals approved of the reasoning of the District of Columbia Court of Appeals, which issued a similar holding in Crestar Bank v. Cheevers, 744 A.2d 1043 (D.C. 2000).
Misenheimer v. Pitts, No. CA06-76, returned to the Court of Appeals for a second time this week and the Court of Appeals dismissed again, for the same reason as the first appeal: lack of a final order.
The underlying case involves "various torts in connection with the shooting of [plaintiff's] hogs and cattle." The plaintiffs earlier appealed the Stone County Circuit Court's grant of summary judgment to some, but not all, of the defendants; that appeal was dismissed for lack of a final order.
At that point:
Appellant returned to circuit court and non-suited his case against one alleged tortfeasor, leaving appellees and possibly one other person as the remaining defendants, with trespass, conversion, and assault as the remaining claims.
On November 14, 2005, appellant tried his conversion and assault claims against appellees. Appellees obtained a directed verdict, and judgment was entered accordingly. That is the order from which this appeal is brought. . . . Appellant’s claims for conversion and assault were concluded by a directed verdict, but the record does not indicate that appellant’s trespass count has been dismissed or otherwise resolved. That count therefore remains pending.
(emphasis supplied). This defect would be enough to dismiss the appeal, but there was also another, mysterious, defendant whose inclusion created problems for the appeal:
[A]ppellant, in an amended complaint, added allegations against Sybil McIntire, although he did not list her in the complaint’s caption. It is not clear whether Ms. McIntire was served with a summons—she never appeared in the action, and appellant does not mention her in this appeal. Nevertheless, her being named as a defendant requires that she be dismissed to achieve finality.
In a reminder to be very careful in representations one makes to the trial court, the Court of Appeals, in Wilkins, et al. v. Food Plus, Inc., et al., No. CA06-552, affirms Sebastian County Circuit Judge James Marchewski. A variance arose between the testimony of a process server and the representations made by counsel to the court in motions to extend the time to effect service of process.
The plaintiff filed the complaint--a false imprisonment action--on September 4, 1004. And:
On January 13, 2005, appellants filed a motion for extension of time until February 11, 2005, to serve appellees, stating that they had made several unsuccessful attempts to serve the store’s president over the past two or three weeks and that their attorney had been busy with other cases and continuing legal education classes.On February 10, 2005, appellants filed another motion for extension of time to serve appellees. They stated that, since filing the first motion, their process-server had been unsuccessful in serving process and that their attorney had been tied up in other legal matters until February 7.
(emphasis supplied). At the subsequent motion to dismiss hearings, "appellants’ attorney stated that he had hired the process-server on January 3, 2005, and had provided him with a summons that was to be issued on that day; the process-server, however, had failed to take the summons to be signed at the clerk’s office. Upon extensive questioning by the trial court, appellants’ attorney defended his failure to have the summons issued when he filed the complaint by explaining that he had been very busy. The process-server, however, testified that he did not recall having been asked to get the summons. This variance led to dismissal of the complaint. More details on the jump.
The Arkansas Supreme Court dismissed the appeal as a legal nullity in Clarendon Am. Ins. Co. v. Hickock, No. 06-889 (5/10/07).
Jay M. Wallace, a Texas attorney, represented Clarendon America in proceedings before the Workers' Compensation Commission. After an adverse decision, Mr. Wallace filed the notice of appeal on behalf of Clarendon, but he never obtained pro hac vice admission. He later associated Arkansas counsel after the deadline for filing a notice of appeal had expired. P.A.M. Transport and Liberty Mutual moved to dismiss the appeal.
The Supreme Court held that Wallace engaged in the unauthorized practice of law by filing a notice of appeal prior to obtaining pro hac vice admission. The court declared that the notice of appeal as filed was a legal nullity and dismissed the appeal with prejudice.
The Eastern District of Arkansas compelled production of personnel files in Nuckles v. Wal-Mart Stores, Inc., 2007 WL 1381651 (E.D. Ark. 5/10/07).
Nuckles, a photographer, filed a copyright infringement claim against Wal-Mart for copying of her professional photographs. The court ordered that Wal-Mart must produce personnel files on 12 employees, subject to two conditions. First, all medical and personal information must be redacted. Second, the parties must enter into a confidentiality order. This case could get interesting and is currently scheduled for a jury trial in August.
Anheuser-Busch filed a trademark infringement complaint against USA Bai Wei Group, Inc. in Pulaski County Circuit Court, Case No. 07-5817, filed 5/4/07. See full complaint here. According to the Complaint, "Bai Wei" is the pronunciation of the Chinese language trademark for Budweiser. USA Bai Wei has made extensive sales through China without Anheuser-Busch's permission.
The Complaint was filed in Arkansas because USA Bai Wei registered as an Arkansas corporation. However, it is unclear why the case was filed in state court rather than federal court. The Complaint seeks millions of dollars in damages including a revocation of Bai Wei's corporate charter.
The Arkansas Court of Appeals reversed specific performance of sale of property in Youree v. Eshaghoff, No. 06-883 (5/9/07).
The Yourees entered into a contract to sell property to the Eshaghoffs for a total of $1.05 million. The contract provided the Yourees had one year to surrender the property. If they did not, they would lease the property for $12,000 per month until surrender. The parties executed addenda that reduced the surrender time to 6 months and required the Eshaghoffs to lease the property for $18,000 per month for no more than 3 months if they failed to meet the surrender deadline.
The trial court found the addenda were enforceable and directed sale of the property. The court of appeals reversed, finding that the addenda were unenforceable because they provided no additional consideration . These addenda did not require the Yourees to do anything more than what they were already required to do.
As predicted, the copyright infringement claims are picking up against YouTube and Google. In the past two months, the companies have been hit with two lawsuits. Viacom filed its suit in March, representing a handful of plaintiffs. See Viacom v. YouTube (S.D.N.Y., filed 3/13/07). Eric Goldman of the Technology & Marketing Blog provides his analysis here.
Earlier this month, a European soccer leagued dialed it up a notch by filing a class action on behalf of all copyright owners whose works were infringes on YouTube. See Football Ass'n Premier League v. YouTube (S.D.N.Y., filed 5/4/07). Eric Goldman again provides an excellent analysis.
The law is unsettled on both cases. Google could feel it is time to establish a precedent, and these cases could produce some important opinions.
The Eastern District of Missouri denied a request for expedited discovery in Interface Security Systems, LLC v. May, 2007 WL 1300394 (E.D. Mo. 5/2/07).
Interface filed a lawsuit claiming false advertising but did not move for a preliminary injunction. Interface filed a motion for expedited discovery, stating it would move for a preliminary injunction and that expedited discovery would assist that motion. This was a strange request that essentially shows Interface has not incurred irreparable harm, which is the hallmark of preliminary injunctive relief. The court denied the request for expedited discovery and could not resist an illustrative commentary:
This is most analogous to the famous character of Wimpy from an episode of the Popeye cartoon series . . . To satisfy his addiction Wimpy was always willing to "gladly pay you Tuesday for a hamburger today." It was a special group which yielded to his melodic chant. This Court opts not to be a member of a special group today.
The Arkansas Supreme Court resolved an interesting point of standing in Arkansas Beverage Retailers Ass'n, Inc. v. Moore, No. 06-794 (5/3/07).
The Alcoholic Beverage Control Board approved a transfer of a liquor license to Sam's Club in Fayetteville. The Arkansas Beverage Retailers Association filed a complaint seeking judicial review, claiming its members would suffer financial harm if the license was transferred to Sam's. The trial court dismissed the complaint for lack of standing, concluding that financial impact could not support standing under the Administrative Procedure Act (APA).
The Supreme Court reversed, finding that the APA grants standing on "any person . . . who considers himself or herself injured in his or her person, business, or property by final agency action[.]" See A.C.A. § 25-15-212(a).
The long dispute over Lee and Wilma Clark's failed farming venture finally came to a close in Searcy Farm Supply, LLC v. Merchants & Planters Bank, No. 06-892 (5/3/07).
In 2001, the Clarks obtained loans from Merchants & Planters Bank, which perfected its security interests in the Clarks' crops. In 2002, the Clarks purchased corn seed and materials from Searcy Farm Supply, which obtained a purchase money security interest. The Clarks defaulted on all their obligations, and this action was initiated in August 2002.
Searcy Farm Supply argued that, pursuant to A.C.A. § 4-9-324, the crops were proceeds from the seeds and materials. Under this theory, the PMSI extended to the crops, giving Searcy Farm Supply priority over Merchants & Planters. The trial court disagreed and granted judgment to Merchants & Planters. The supreme court affirmed, readily dismissing this argument for lack of persuasive authority:
Appellants fail to cite any case law or statutory authority that defines crops as the identifiable proceeds of seeds, and without such authority, we decline to do so.
The District Court of Minnesota granted partial summary judgment in Cosi, Inc. v. WK Holdings, LLC, 2007 WL 1288028 (5/1/07).
Cosi is a chain of sandwich restaurants with locations in 16 states. Bill Kozlak opened Kozy's Steaks and Seafood, a fine dining restaurant in Minnesota. Because Cosi and Kozy are pronounced the same, Cosi filed suit for trademark infringement and dilution. Kozy moved for summary judgment on the dilution claim and the claim for attorney's fees.
The court agreed that Cosi is not a famous trademark as required to establish a dilution claim. The court also agreed that Mr. Kozlak did not act willfully and deliberately by adopting the trademark Kozy's from his last name. The court granted summary judgment as to the dilution claim and the claim for attorney's fees.
The Eastern District of Missouri granted summary judgment on patent infringement and breach of contract in Monsanto Co. v. Vanderhoof, 2007 WL 1240258 (E.D. Mo. 4/27/07).
Monsanto holds a patent on soybean seed technology that makes the seeds resistant to Roundup. The seeds are aptly named Roundup Ready. Monsanto licenses the patent to soybean farmers for a term of one year. The farmer cannot plant Roundup Ready seeds in subsequent years or plant seeds from soybeans produced from Roundup Ready seeds.
Vanderhoof entered into a license for the 2003 season, but he planted Roundup Ready seeds in 2004 and 2005. The court had no trouble finding these acts amounted to patent infringement and breach of the license agreement. Monsanto has additional claims against Vanderhoof that were not subject to the summary judgment motion.
The Eastern District of Missouri denied a motion to enforce a settlement agreement in BP Products North Am., Inc. v. Wallis Petroleum, L.C., 2007 WL 1240261 (E.D. Mo. 4/27/07). This was the opposite result on the same issue in Enterprise Rent-a-Car Co. v. U-Haul Int'l, Inc. (previously posted 4/19/07).
Wallis purchased a gas station from BP but refused to remove the sign bearing the AMOCO trademark. BP filed suit for trademark infringement, and the parties entered into settlement negotiations. The parties exchanged drafts of settlement agreements but never executed one. When the negotiations reached an impasse, BP filed this suit.
The court found that the parties never reached a meeting of the minds as to a settlement agreement. Although the parties exchanged settlement drafts, several material terms remained in dispute. A pretrial order will issue shortly.
In Sowders v. St. Joseph's Mercy Health Center, ___ Ark. ___, ___ S.W.3d ___, 2007 Wl 114267 (Jan. 18, 2007), the Arkansas Supreme Court held that Arkansas' direct action statute, Ark. Code Ann. 23-79-210, did not apply to a pooled risk program for a group of charitable hospitals. In so holding, the court applied its previously-formulated three-factor test to conclude that the program was not "insurance" within the meaning of the statute because (1) the pooled risk program was not mandatory, (2) there was no evidence offered that a profit motive existed with regard to the program and (3) there was no evidence that the program was actuarially sound. As further justification for its decision, the court held that the program did not meet the definition of an "insurer" under the Arkansas Insurance Code because it was "not in the business of entering into contracts of insurance."
The facts of the case were that Sowders was injured after undergoing an outpatient procedure at St. Joseph's hospital, which is a charitable hospital. Precluded by the doctrine of charitable immunity from suing or obtaining a judgment against St. Joseph's, Sowders sued Sisters of Mercy, the administrator of the pooled risk program, under the direct action statute, Ark. Code Ann. 23-79-210.The pooled risk program in question was styled a "Comprehensive Liability Program." Its stated purpose was "to provide the corporations controlled by the Sisters of Mercy Health System...a mechanism to evaluate and defend claims of liability and to centralize the handling of such claims and accumulate funds for the payment of those potential losses...." Each participating hospital was required to make periodic payments, termed "assessments", to the fund, the "assessment" being based upon that particular hospital's past history of claims and its future risk projections. Only hospitals which were members of the Saint Louis Province of the Sisters of Mercy system were allowed to participate in the program.
In concluding that the direct action statute was not available to Sowders to maintain an action against the program, the court looked to its prior case law applying a three-factor test as to what constitutes "insurance" within the meaning of the statute: (1) whether the plan is mandatory, (2) whether a profit motive exists in offering the plan, and (3) whether the plan is intended to be actuarially sound. The court looked to the evidence and concluded that the plan was not mandatory, and that there was no evidence from which it could conclude that it was either offered with a profit motive or was actuarially sound. The court further looked to the definition of "insurer" in the Arkansas Insurance Code and held that the program did not meet the definition because it was not "in the business of entering into contracts of insurance."
As additional support for its opinion, the court cited a case from the United States Court of Appeals for the Eighth Circuit which held that the Sisters of Mercy program was not "other insurance" within the meaning of a liability insurance policy. In St. John's Reg'l Health Ctr. v. Am. Cas. Co., 980 F.2d 1222 (8th Cir. 1993), the court had held that the program was more akin to self-insurance because instead of spreading risk across the pool, which is typically understood to be insurance, the program was designed to have each participating hospital eventually cover the liabilities it generates.
In reaching its decision, the court also upheld the constitutionality of the charitable immunity doctrine, rejecting Sowders' argument that the doctrine would leave her without a remedy for her injuries if the direct action statute was determined not to apply. In rejecting this argument, the court noted that the charitable immunity doctrine does not shield employees of the charity from suit, so Sowders could have sued the employees who caused her injuries. The court further noted that the terms of the Sisters of Mercy program would have provided indemnification to those employees had they been sued. Finally, the court refused to entertain Sowders' argument that the charitable immunity doctrine should be judicially abandoned as violative of public policy, concluding that the argument had not been raised below. Nevertheless, the court reiterated its request for the legislature to take up the issue of whether the doctrine should be abolished.
Justice Brown, in dissenting from the majority opinion, argued that the court had failed to liberally construe the direct action statute, as was required by the court's precedent. Justice Brown also argued against the majority's conclusion that suing the individual employees was an adequate remedy, because doing so would not have allowed Sowders to obtain a remedy for any "institutional negligence" which was not the result of the employees' conduct but instead of the hospital.
The Court of Appeals issued two opinions ordering rebriefing due to defective abstracting this week:
In Farm Bureau Mutual Insurance Co. of Arkansas, Inc., v. Nowlin, No. CA06-01053, the appellant's abstract referred "to documents relied upon in evidence at trial, including references to the insurance policy, interrogatories submitted to the jury, and verdict form, that are not included in appellant's abstract or addendum for our review."
And in Johnson v. State, No. CACR06-818, the appellant's abstract "consist[ed] of only eleven pages of abstracted testimony from the three-volume record consisting of approximately 977 pages and omits various sections of testimony and colloquies" needed for appellate review.
Moreover, the Court held that the abstract was insufficient to decide the appellant's evidentiary challenges because:
Appellant included in the addendum some forty-seven pages of photocopied transcript related to the challenges to the evidentiary rulings brought up in this appeal, which consist of material parts of the testimony of the witnesses and colloquies between the trial court, counsel, and other parties. That information should have been abstracted as required by Rule 4-2(a)(5) and included in the abstract section of appellant’s brief. Additionally, appellant failed to include in the abstract any proffered testimony related to the issues presented to this court. Without a proffer, we are unable to evaluate the trial court’s evidentiary rulings, and thus, any related arguments on appeal cannot be reached. See Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003).
An appellate practice decision Wednesday from the Court of Appeals: Horvath v. State Farm Federal Savings Bank, No. 06-678. Horvath attempted to appeal pro se appeal from Saline County Circuit Court Grisham A. Phillip's denial of a motion to dismiss and the court's finding that Saline County was proper venue. Neither of these are final orders; hence, no appellate jurisdiction.
The Court also gave short shrift Horvath's alternative request for a writ of prohibition:
We note that Horvath is apparently aware that an appeal is not the proper remedy in this case. In the conclusion of his reply brief, he asks that this court treat his “‘pro se’ pleadings as a petition for a writ of prohibition.” We decline to do so. Pro se appellants receive no special consideration of their argument and are held to the same standard as licensed attorneys. Paris v. State, 87 Ark. App. 344, 192 S.W.3d 277 (2004). The court of appeals does not have jurisdiction to take up petitions for writs of prohibition. Ark. S. Ct. R. 1-2(a)(3). It is Horvath’s responsibility to comply with the rules regarding the preparation and filing of a petition for a writ of prohibition.
The Eastern District of Missouri partially granted a Rule 56(f) request for additional discovery in Synergetics, Inc. v. Peregrine Surgical, Ltd., 2007 WL 1231685 (E.D. Mo. 4/25/07).
Synergetics filed suit against Peregrine claiming patent infringement of one of Synergetics' patents for eye surgery. Peregrine pled noninfringement and filed a motion for summary judgment. In its reply on the motion for summary judgment, Peregrine added defenses of inequitable conduct. Synergetics filed a Rule 56(f) request for additional discovery on all arguments.
The court denied the request as to the noninfringement argument originally raised in the motion because Synergetics had ample notice of this argument. The court did grant the motion as to the newly-raised inequitable conduct argument.
In Scott v. Harris, No. 05-1631, the United States Supreme Court reversed the Eleventh Circuit in a qualified immunity case. The underlying case involved whether an officer's decision to end a high-speed chase by ramming the suspect's vehicle violated the Fourth Amendment (the threshold inquiry in the officer's qualified-immunity defense).
As Dave Hoffman at Concurring Opinions points out, however, the case may have implications beyond the Fourth Amendment context, because the majority's decision was based on an independent review of the police videotape of the chase. In deciding summary judgment case, of course, "courts are required to view the facts and draw reasonable inferences ?in the light most favorable to the party opposing the [summary judgment] motion.?" Id.(citations and quotations omitted).
Justice Scalia, writing for the 8-1 majority (Justices Breyer and Ginsburg concurred), held that the Eleventh Circuit applied this rule erroneously because the plaintiff's version of the facts were so blatantly contradicted by the videotape: "Respondent's version of the facts is so utterly discredited by [the videotape] that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape." Id. (Quotations of each side's description of the tape are after the jump).
Justice Stevens, dissented, citing the Eleventh Circuit's milder characterization of the chase and chided the majority for deciding the case on its own interpretation of the tape, referring to the majority as "[m]y colleagues on the jury."
SCOTUSblog gives an overview of the decision; additional links (via Howard Bashman) here. Dave Hoffman's post at Concurring Opinions argues that the majority's reliance on its own viewing of the videotape undermines the jurisprudence of appellate review. The Volokh Conspiracy reacts to the decision here (law professor Orin Kerr was co-counsel for police officer). Professor Kerr, in the comment thread of the Concurring Opinions post, reads the case more narrowly: "My view is that this case makes only a narrow point. A plaintiff in a civil action can't make a claim about the facts and get past a videotape that obviously shows the falseness of his allegations so long as the plaintiff doesn't claim the videotape is inaccurate in any way." In an earlier post, Professor Kerr argues that the facts found by the Eleventh Circuit are "technically accurate but irrelevant." Professor Kerr continues, "[t]here's really only one set of undisputed facts, and the question is their legal relevance."
UPDATE: Coverage from the ABA Journal & Report here.
Yesterday the Supreme Court issued two patent opinions. In Microsoft Corp. v. AT&T Corp., 550 U.S. __ (2007), the Court held patent infringement liability does not extend to software installed in computers overseas (detailed coverage at PatentlyO). In KSR Int'l v. Teleflex, Inc., 550 U.S. __ (2007), the Court rejected the Federal Circuit's teaching, suggestion, or motivation (TSM) test to evaluate obviousness (detailed coverage at PatentlyO).
Cellularvision Technology filed a patent infringement lawsuit against Alltel in Florida, but the case has now been transferred to Arkansas. The Complaint accuses Alltel of infringing six patents. Cellularvision is a frequent patent plaintiff in the federal court system and partners with a division of Speedus, which maintains a large portfolio of patent infringement cases.
The Eighth Circuit decided Otter Tail Power Co. v. Surface Transportation Board, No. 06-1962/2412, an administrative procedure by Circuit Judge (and Arkansas native) Lavenski Smith dealing with the arcana of federal regulation of rail shipping prices. The decision is interesting from an appellant practice standpoint because the court imposed a procedural bar on the appellant's arguments, using "a judicially imposed issue-exhaustion requirement when reviewing administrative decisions, which is 'analog[ous] to the rule that appellate courts will not consider arguments not raised before trial courts.'" Id. (quoting Sims v. Apfel, 530 U.S. 103, 108–109 (2000)).
The appellant was Otter Tail Power Company, who appealed the federal Surface Transportation Board's approval of a rate proposed by the Burlington Northern Santa Fe Railroad to haul Otter Tail's coal from from Wyoming to South Dakota. The Board, according to this overview, is a federal agency "charged with the fundamental missions of resolving railroad rate and service disputes and reviewing proposed railroad mergers."
Otter Tail is a "captive shipper" under federal law as it has no alternative carriers to BNSF for shipping its coal. Federal law imposes a reasonableness requirement on the prices carriers charge to captive shippers and an appeal procedure to the Board in case of disputes. In this case BNSF proposed a certain rate for shipping Otter Tail's coal, Otter Trail availed itself of the appeal process, the Board approved BNSF's rate, Otter Tail appealed, and the Eighth Circuit affirmed.
Otter Tail argued on appeal that the Board's decision to use the so-called PPL-test to determine a reasonable rate. The details of the PPL-test were not determinative on appeal, however; for Otter Tail failed to raise the issue sufficiently below:
We note that the joint appendix submitted by the parties consists of over 300 pages of motions, exhibits, and other relevant material excluding Otter Tail's final brief. Out of these 300 pages, Otter Tail can only point to twenty-one words spread over two sentences found in two different proceedings where it referenced the Board's adoption of the PPL-test. In the first reference, Otter Tail states, "Otter Tail is uncertain why the Board has posed the cross-subsidy question . . ." The second citation by Otter Tail states "Otter Tail . . . continues to object to the PPL-test . . . "
The Court acknowledged that "Neither the Supreme Court nor this court has articulated with precision the requirements an appellant must fulfill to successfully claim that it has properly raised and exhausted an issue before the Board," but twenty-one words over two sentences in a 300-page record are obviously not enough.
Lewis & Clark Outfitters filed a trademark infringement lawsuit against Mahco, Inc. (Case No. 07-05075, Western District Arkansas, filed 4/24/07). The Complaint alleges that officers and owners of Mahco were former customers and vendors of Lewis & Clark. Mahco began using a Lewis & Clark trademark (seen here) and has filed for a federal trademark. The Complaint does not request a preliminary injunction.
The District Court of Minnesota denied cross motions for summary judgment in the ongoing patent infringement suit between Biopolymer and Immudyne (previously posted 3/22//07). See Biopolymer Engineering, Inc. v. Immudyne, Inc., 2007 WL 1178541 (D. Minn. 4/20/07).
In October 2005, Immudyne filed a declaratory action in Texas to define rights in the patents at issue. About two months later, Biopolymer filed the present action claiming patent infringement. Immudyne filed a motion for summary judgment claiming it had a license in the disputed patents. Alternatively, Immudyne moved the court to stay this action in favor of the Texas action under Colorado River abstention. Biopolymer countered with its own summary judgment motion.
The court quickly rejected both motions for summary judgment and focused its analysis on the motion to stay. The court found exceptional circumstances did not exist to merit a stay. Immudyne contributed to this conclusion by actively participating in discovery and moving the Minnesota case forward. More importantly, the Texas case deals with state law of contract interpretation while the Minnesota case deals with federal patent law.