Latest 2 Cases: Merrill v. Smith (Civil Procedure), Frizzell v. DeYoung (Civil Procedure)

How Mike Huckabee and Robert Bork Could Help Center Neil Gorsuch

SHERRY F. COLB

Cornell law professor Sherry F. Colb analyzes an unusual comment by former Arkansas Governor Mike Huckabee that a government restriction on the size of people’s Thanksgiving gathering would violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Colb describes a similar statement (in a different context) by conservative Supreme Court nominee Robert H. Bork during his (unsuccessful) confirmation hearings in 1987 and observes from that pattern a possibility that even as unenumerated rights are eroded, the Court might be creative in identifying a source of privacy rights elsewhere in the Constitution.

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Merrill v. Smith

Docket: 47511

Opinion Date: December 4, 2020

Judge: Stegner

Areas of Law: Civil Procedure, Contracts, Legal Ethics

This case involved a fee dispute between two attorneys arising from a purported fee-sharing agreement. The underlying case involved an airman in the U.S. Air Force who was injured while driving through Idaho on his way to a posting in Alaska. The airman hired an Alaska attorney, Stephen Merrill, to represent him in pursuit of his personal-injury claims in Idaho. Merrill associated Erik Smith, an Idaho attorney, to act as local counsel in the airman’s suits. At a point in the proceedings, the airman terminated Merrill’s representation. Smith ultimately settled the case and retained the entire attorney fee. Merrill then sued Smith seeking his proportionate share of the fee. Smith moved for summary judgment which was granted by the district court. Merrill appeals. After review of the trial court record, the Idaho Supreme Court concluded the district court erred in granting summary judgment to Smith: Smith failed to meet his burden as the moving party on summary judgment. "When Smith filed his motion for summary judgment, he alleged that it was undisputed that there was no agreement reached between the parties, written or oral. This bald assertion contradicted the crux of Merrill’s complaint that the agreement about fee sharing had been reached over the course of the email correspondence. However, Smith did not support this assertion by presenting evidence or by citing to any admissible evidence in this record."

Frizzell v. DeYoung

Docket: 47543

Opinion Date: December 4, 2020

Judge: Bevan

Areas of Law: Civil Procedure, Trusts & Estates

This appeal arose from a district court’s alleged failure to follow the Idaho Supreme Court’s holding in Frizzell v. DeYoung, 415 P.3d 341 (2018) ("Frizzell I") after remand. In Frizzell I, the Supreme Court held that an agreement entered into pursuant to the Trust and Estate Dispute Resolution Act (“TEDRA”), Idaho Code sections 15-8-101, et seq., by Donald Frizzell and Edwin and Darlene DeYoung was only enforceable to the extent that it settled past claims. As a result, the provisions that purported to exculpate Edwin from liability for future negligence or breaches of fiduciary duty after the agreement was executed were deemed void as against public policy. In this appeal, Frizzell argued that after the case was remanded, the district court failed to follow the law of the case by erroneously allowing the DeYoungs to introduce evidence, testimony, and argument concerning conduct that occurred before the agreement was executed. Frizzell also claimed the district court abused its discretion in awarding the DeYoungs attorney fees without considering the factors in Idaho Rule of Civil Procedure 54(e). Finding no reversible error, the Supreme Court affirmed the district court.