Rethinking Retroactivity in Light of the Supreme Court’s Jury Unanimity Requirement

MICHAEL C. DORF

In light of the U.S. Supreme Court’s decision Monday in Ramos v. Louisiana, in which it held that the federal Constitution forbids states from convicting defendants except by a unanimous jury, Cornell law professor Michael C. Dorf discusses the Court’s jurisprudence on retroactivity. Dorf highlights some costs and benefits of retroactivity and argues that the Court’s refusal to issue advisory opinions limits its ability to resolve retroactivity questions in a way that responds to all the relevant considerations.

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Thryv, Inc. v. Click-To-Call Technologies, LP

Court: US Supreme Court

Docket: 18-916

Opinion Date: April 20, 2020

Judge: Ruth Bader Ginsburg

Areas of Law: Civil Procedure, Intellectual Property, Patents

Inter partes review (IPR) permits a patent challenger to ask the U.S. Patent and Trademark Office to reconsider the validity of earlier granted patent claims. If a request comes more than a year after a patent infringement lawsuit against the requesting party, IPR “may not be instituted,” 35 U.S.C. 315(b). The agency’s determination of whether to institute IPR is “final and nonappealable” under section 314(d). Thryv sought IPR of Click-to-Call’s patent. The Patent Trial and Appeal Board rejected Click-to-Call’s argument that the suit was untimely, instituted review, and canceled 13 of the patent’s claims as obvious or lacking novelty. Treating the Board’s application of section 315(b) as judicially reviewable, the Federal Circuit concluded that the petition was untimely and vacated the Board’s decision. The Supreme Court vacated. Section 314(d) precludes judicial review of the agency’s application of section 315(b)’s time prescription. A challenge based on section 315(b) constitutes an appeal of the agency’s decision “to institute” an IPR. Allowing section 315(b) appeals would unwind agency proceedings determining patentability and leave bad patents enforceable. Section 314(d)’s text does not limit the review bar to section 314(a)’s question of whether the petitioner has a reasonable likelihood of prevailing. Click-to-Call’s contention is, essentially, that the agency should have refused to institute IPR.

Hope v. Warden Pike County Correctional Facility

Court: US Court of Appeals for the Third Circuit

Docket: 20-1784

Opinion Date: April 21, 2020

Judge: Smith

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Immigration Law

On April 3, 2020, 20 immigration detainees filed a habeas petition (28 U.S.C. 2241), seeking immediate release, claiming that due to underlying health conditions, their continued detention during the COVID-19 pandemic puts them at imminent risk of death or serious injury. The district court found that the petitioners face irreparable harm and are likely to succeed on the merits, that the government would “face very little potential harm” from their immediate release, and that “the public interest strongly encourages Petitioners’ release.” Without waiting for a response from the government, the court granted a temporary restraining order (TRO) requiring the release. The government moved for reconsideration, submitting a declaration describing conditions at the facilities, with details of the petitioners’ criminal histories. The court denied reconsideration, stating that the government had failed to demonstrate a change in controlling law, provide previously unavailable evidence, or show a clear error of law or the need to prevent manifest injustice. The court extended the release period until the COVID-19 state of emergency is lifted but attached conditions to the petitioners’ release. The government reports that 19 petitioners were released; none have been re-detained. The Third Circuit granted an immediate appeal, stating that the order cannot evade prompt appellate review simply by virtue of the label “TRO.” A purportedly non-appealable TRO that goes beyond preservation of the status quo and mandates affirmative relief may be immediately appealable under 28 U.S.C. 1292(a)(1).

Mayle v. Illinois

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1691

Opinion Date: April 23, 2020

Judge: HAMILTON

Areas of Law: Civil Procedure, Civil Rights, Family Law, Government & Administrative Law

Mayle, a self-proclaimed Satanist, is a follower of The Law of Thelema, a set of beliefs developed in the early 1900s by Aleister Crowley. As part of this religion, Mayle participates in what he calls “sex magick rituals” that he believes violate Illinois laws forbidding adultery and fornication. He claims that he reasonably fears prosecution for practicing his beliefs. He also says that he wants to marry more than one person at the same time and that if he were to do so, he would violate an Illinois law against bigamy. Mayle’s first challenge to the laws was dismissed. Mayle did not appeal, but the next year he filed another suit challenging the same statutes. The Seventh Circuit affirmed the dismissal of the second suit, first rejecting a challenge to the district court’s grant of a two-day extension to allow Mayle to file a notice of appeal. Mayle’s bigamy claim was precluded by the 2017 final judgment on the merits. Mayle lacked standing to challenge the state’s adultery and fornication laws because he still showed no reasonable fear of prosecution; those laws are no longer enforced.

Barnett v. Hall, Estill, Hardwick, Gable

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-5090

Opinion Date: April 20, 2020

Judge: Harris L. Hartz

Areas of Law: Civil Procedure, Civil Rights

Plaintiff Christopher Barnett appealed the dismissal with prejudice his federal civil-rights claims for failure to state a claim and dismissing with prejudice his state-law claims because they did not survive the restrictions imposed by the Oklahoma Citizens Participation Act (OCPA), Okla. Stat. tit. 12, sections 1430–40 . Defendants cross-appealed the district court’s denial of attorney fees under the OCPA, contending that an award of attorney fees was mandatory. Barnett’s complaint bases his claims on an incident on January 4, 2018, related to a hearing in Oklahoma state court on an open-records case he had brought against Tulsa Community College. According to Barnett, two lawyers in the firm of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., (Hall Estill) falsely reported to the office of the state attorney general (AG) that Barnett had made a threat. The AG’s office then relayed this report to the county sheriff. When Barnett arrived at the courtroom for the hearing, the state-court judge instructed him to speak with a deputy sheriff. After Barnett denied making any threat, the deputy told him to stay inside the courtroom until he received permission to leave. At some point the AG’s office arrived with its own security detail. When the proceedings began, the state-court judge discussed the report in open court. Barnett filed suit in state court the next day against Hall Estill, and Tulsa University (TU), alleging federal civil-rights claims under 42 U.S.C. 1983 and state tort claims because he had been unlawfully seized when he was forbidden to leave the courtroom, had been cast in a false light by the public airing of the alleged threat, and had been retaliated against by Defendants for his exercise of his rights to free speech and access to the courts. After review, the Tenth Circuit affirmed dismissal of the federal-law claims, agreeing with the district court that the complaint did not adequately allege that any of the Defendants acted under color of state law. But the Court reversed judgment on the state-law claims and remanded to the district court with instructions to dismiss the claims without prejudice or remand them to the state court.

Hays Medical Center et al. v. Azar

Court: US Court of Appeals for the Tenth Circuit

Docket: 17-3232

Opinion Date: April 21, 2020

Judge: Jerome A. Holmes

Areas of Law: Civil Procedure, Government & Administrative Law, Public Benefits

Plaintiff-Appellants were eleven rural hospitals (the “Hospitals”) who challenged the methodology the U.S. Secretary of Health and Human Services (the “Secretary”) used to calculate their Medicare reimbursements. After the publication of the FY 2010 Final Rule, the Hospitals took issue with the Secretary’s methodology for calculating the hospital-specific rate for new base years. And dissatisfied with their reimbursements under that methodology, the Hospitals filed administrative appeals with the Provider Reimbursement Review Board, an independent panel authorized to hear appeals from the Secretary’s final determinations. The Hospitals then sued the Secretary in the district court, arguing: (1) the Secretary applied the same cumulative budget-neutrality adjustment twice—once by using inflated normalized diagnosis-related group weights as a divisor in step two and then again in step four; (2) the Secretary’s methodology yielded different payments than “would have been made had [he] . . . applied the budget-neutrality adjustments to the DRG weights themselves;" and (3) the Secretary acted arbitrarily and capriciously by not calculating the hospital-specific rate for new base years “based on 100 percent” of a hospital’s base-year “target amount." The district court held it would “not second-guess the Secretary’s policy” just because there may have been “other ways of calculating payments.” And so the court denied the Hospitals’ summary-judgment motion, granted the Secretary’s cross-motion, and entered final judgment.The Tenth Circuit Court of Appeals, in reviewing the Hospitals’ arguments, found that their arguments rested on "flawed assumptions. And the Secretary has long understood his methodology and explained it to the public." The Court concurred with the district court and affirmed its judgment.

United Government Security v. American Eagle Protective

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-4084

Opinion Date: April 21, 2020

Judge: Mary Beck Briscoe

Areas of Law: Civil Procedure, Labor & Employment Law

Plaintiffs-Appellants United Government Security Officers of America International Union and its local, United Government Security Officers of America, Local 320 (collectively, the Unions) sued American Eagle Protective Services Corporation and Paragon Systems, Inc. (collectively, the Employers) under § 301 of the Labor Management Relations Act (LMRA), seeking declaratory relief under the Collective Bargaining Agreement (CBA) and to compel arbitration of a terminated employee’s grievance. The Employers terminated Michael Reid, a Salt Lake City union member. The Unions grieved the termination, alleging the member was terminated without just cause. The Employers denied the grievance, alleging the member was terminated with just cause, thus not subject to arbitration under the exceptions listed in the CBA. The member was terminated in 2014; the Unions filed this action in 2018, seeking to compel arbitration of the grievance of the alleged wrongful discharge. The district court granted summary judgment to the Employers, ruling that the action was time-barred. Finding no reversible error in the district court's judgment, the Tenth Circuit affirmed.

Deutsche Bank National Trust Company v. Karr

Court: Supreme Court of Alabama

Docket: 1190036

Opinion Date: April 17, 2020

Judge: Tommy Bryan

Areas of Law: Banking, Civil Procedure, Real Estate & Property Law

Deutsche Bank National Trust Company sought to appeal a circuit court order in a foreclosure action it brought against Dortha and Randy Karr. The Alabama Supreme Court determined the order appealed from was not a final judgment, thus it dismissed the Bank's appeal.

Antenor v. Alaska, Department of Corrections

Court: Alaska Supreme Court

Docket: S-17005

Opinion Date: April 17, 2020

Judge: Carney

Areas of Law: Civil Procedure, Criminal Law, Government & Administrative Law

Several Alaska Department of Corrections inmates challenged the DOC's policy to charge for local telephone calls, arguing the rates they and call recipients had to pay for calls violated their constitutional right to rehabilitation, their statutory right to reasonable telephone access, and DOC’s contractual obligations under a prior settlement and consent decree. In addition, one of the prisoners challenged DOC officers’ decision to deny him access to a computer programming book he ordered from outside the prison. He contended that DOC placed a content-specific restriction on the educational materials and publications prisoners were allowed, violating the Alaska Constitution’s free speech provisions as well as prisoners’ right to reformation. Each of these challenges reached the Alaska Supreme Court after inmates exhausted the administrative process from prison. Inmates then appealed to the superior court, which denied relief. The Alaska Supreme Court determined the superior court record did not provide enough evidence for it to meaningfully determine the reasonableness of the rates charged inmates for local telephone calls; therefore the Court reversed denial of relief and remanded for further fact-finding by the trial court. The Court concluded that the facility's restrictions on programming-related books were rationally related to a legitimate interest, and because they did not infringe on the right to rehabilitation, it affirmed denial of a prisoner's motion to enforce his claimed right to a particular text about computer programming.

Roman v. Karren

Court: Alaska Supreme Court

Docket: S-17310

Opinion Date: April 17, 2020

Judge: Daniel E. Winfree

Areas of Law: Civil Procedure, Family Law

Cleveland Karren and Jayda Roman had a daughter, born March 2012 in Washington, D.C. Jayda and the daughter moved in July to Mount Vernon, Washington, to live with Jayda’s parents. The family moved to Anchorage in April 2013. Cleveland later took a job at Joint Base Lewis-McChord; he moved to Washington in April 2014, and Jayda remained in Anchorage with the daughter. In May 2015 Cleveland took a different job and moved to Washington, D.C. Jayda filed the parties’ marital dissolution petition in Anchorage in May 2015. Jayda and Cleveland testified that they both had “live[d] in Alaska six continuous months out of the past six years.” Jayda appealed the Alaska superior court’s child custody order, arguing that the court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) or that it abused its discretion by failing to decline UCCJEA jurisdiction on inconvenient forum grounds. She also contended the court gave disproportionate weight to the custody investigator’s trial testimony and, under the statutory custody factors, to maintaining the father-daughter relationship. The Alaska Supreme Court concluded that the superior court had UCCJEA jurisdiction because Alaska was the child’s home state when the proceeding commenced; the Court also concluded that the court properly weighed the statutory inconvenient forum factors and did not abuse its discretion when it determined that deciding custody in Alaska was most practical. And because the court had broad discretion in making a custody determination — including the weight to give a custody investigator’s testimony — the Supreme Court concluded the court did not abuse its discretion when weighing either testimony or statutory custody factors.

Cardinal Care Management, LLC v. Afable

Court: California Courts of Appeal

Docket: A154062(First Appellate District)

Opinion Date: April 20, 2020

Judge: Tucher

Areas of Law: Civil Procedure, Labor & Employment Law

Plaintiffs sought unpaid overtime wages, liquidated damages, and waiting time penalties from two residential care facilities with a sole member, Chou. A hearing officer awarded $2.5 million. Chou’s liability was $2.2 million. The trial court allowed the defendants to file appeals conditionally, subject to being stricken if their petition to waive the bond requirement was denied. Chou submitted a declaration stating that he and the businesses lacked the financial ability to pay the awards or to make the deposit; that he had contacted bonding companies but could not provide required security; and that he was willing to provide financial statements, for the court’s in camera review, citing his bankruptcy and divorce. Plaintiffs submitted evidence that, while the action was pending, Chou had transferred title to four residential care facilities, and another property to trusts and LLCs of which Chou’s wife was the sole manager; that the value of the four properties collectively exceeded five million dollars; and that a fifth property had been purchased for $1,050,000. Chou cited mortgage debt, claiming that the properties were transferred for “an estate plan.” Chou was not present at the hearing. The trial court stated that there were no witnesses regarding the defendants’ financial position and found Chou’s assertions not credible. The court rejected, as untimely, Chou’s attorney’s offer to arrange for Chou to come to court and denied the request for a waiver of the requirement of an undertaking, dismissing the appeals from the award. The court of appeal affirmed. The trial court provided an adequate hearing, consistent with due process.

Tilkey v. Allstate Ins. Co.

Court: California Courts of Appeal

Docket: D074459(Fourth Appellate District)

Opinion Date: April 21, 2020

Judge: Richard D. Huffman

Areas of Law: Civil Procedure, Personal Injury

While Michael Tilkey and his girlfriend Jacqueline Mann were visiting at her home in Arizona, they got into an argument. Tilkey decided to leave the apartment. When he stepped out onto the enclosed patio to collect his belongings, Mann locked the door behind him. Tilkey banged on the door to regain entry, and Mann called police. Police arrested Tilkey and charged him under Arizona law with criminal damage deface, possession or use of drug paraphernalia, and disorderly conduct, disruptive behavior. Domestic violence charges were attached to the criminal damage and disorderly conduct charges. Tilkey pled guilty to the disorderly conduct charge only; the other two charges were dropped. After Tilkey completed a domestic nonviolence diversion program, the disorderly conduct charge was dismissed. Before the disorderly conduct charge was dismissed, Tilkey's company of 30 years, Allstate Insurance Company (Allstate), terminated his employment based on his arrest for a domestic violence offense and his participation in the diversion program. Allstate informed Tilkey it was discharging him for threatening behavior and/or acts of physical harm or violence to another person. Following the termination, Allstate reported its reason for the termination to the Financial Industry Regulatory Authority (FINRA); that information was accessible to any firm that hired licensed broker-dealers like Tilkey. Tilkey sued Allstate for wrongful termination in violation of Labor Code section 432.7 and compelled, self-published defamation. At trial, Allstate presented evidence that it would have terminated his employment based on after-acquired evidence that Tilkey had circulated obscene and inappropriate e-mails using company resources. The jury returned a verdict in Tilkey's favor on all causes of action, advising the court that it did not find Allstate's after-acquired evidence defense credible. Allstate appealed, contending: (1) it did not violate section 432.7, so there was no wrongful termination; (2) compelled self-published defamation per se was not a viable tort theory; (3) it did not defame Tilkey because there was not substantial evidence its statement was not substantially true; (4) punitive damages were unavailable in compelled self-publication defamation causes of action; (5) the defamatory statement was not made with malice; and (6) the punitive damages awarded here were unconstitutionally excessive. The Court of Appeal agreed Allstate did not violate section 432.7 when it terminated Tilkey's employment based on his plea and his participation in an Arizona domestic nonviolence program, and reversed that judgment. The Court also agreed that compelled self-published defamation was a viable theory, and affirmed that judgment. The Court determined the pubitive damages awarded here were not proportionate to the compensatory damages for defamation, and remanded for recalculation of those damages.

Santa Maria Reservoir Co. v. Warner

Court: Colorado Supreme Court

Citation: 2020 CO 27

Opinion Date: April 20, 2020

Judge: Samour

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law, Zoning, Planning & Land Use

Santa Maria Reservoir Company (“SMRC” or the “Company”) was a mutual reservoir company responsible for storing and releasing water to its shareholders, who owned the right to use that water. SMRC’s water was stored in its two reservoirs: the Santa Maria Reservoir and the Continental Reservoir. SMRC was contacted about leasing water from SMRC’s shareholders to replace depletions to the Rio Grande. In May 2013, the Division Engineer submitted a written report in which he recommended “that th[e] requested change of water right be granted” with one condition: “that such change . . . not expand the consumption of the water right beyond that which has been the historical practice for agricultural purposes.” SMRC met with various opposers to explore what terms and conditions might assuage their concerns. Based on their input, it drafted a proposed decree in which it agreed to replicate accretions (including return flows) to the Rio Grande to prevent injury to other water rights diverting from the Rio Grande. By April 2016, all opposers except appellant Jim Warner had stipulated to the entry of SMRC’s proposed decree. Warner’s opposition was premised on his concern that SMRC’s application, if granted, would interfere with his downstream surface and groundwater rights. Warner, a rancher, owned two parcels of land on which he grew hay for his livestock using flood irrigation. His properties were located in the Closed Basin, generally east and north of land that received the water SMRC delivered through the Rio Grande Canal. Because he flood irrigated, Warner needed the groundwater beneath his lands to stay at a level close enough to the surface to reduce ditch losses and allow water to carry further across his crop land. After review of the water rights at issue and proposed uses, the Colorado Supreme Court concluded Warner was not injured by the water court’s approval of the change-of-use application submitted by SMRC with respect to the water it diverted from the Rio Grande into the Closed Basin. "Because that water is imported water, SMRC is entitled to fully consume all of it. The water would not be in the Closed Basin, much less available for use by Warner and other water users in the Closed Basin, without its importation by SMRC. Thus, rather than cause an injury to Warner, the approval of SMRC’s application simply revealed to him that his past use of return flows from SMRC’s imported water in the Closed Basin was a benefit to which he had no enforceable right; Warner just didn’t know what he had 'til it was gone."

Investor Recovery Fund v. Hopkins

Court: Idaho Supreme Court - Civil

Docket: 46247

Opinion Date: April 20, 2020

Judge: Brody

Areas of Law: Civil Procedure, Securities Law

Investor Recovery Fund, LLC was the assignee of six claims held by individual investors who lost their investments in the Hopkins Northwest Fund, LLC (the fund). Randall Hopkins and Brian Murphy were the principals of the fund, and together they owned and managed Hopkins Financial Services, Inc. (Hopkins Financial). The individual investors formed Investor Recovery for the purposes of asserting a collective claim against Hopkins Financial and the fund’s principals individually (collectively, Hopkins Associates). The fund declared a moratorium on redemptions in 2008, preventing investors from taking their money out of the fund. The individual investors lost their investments when the fund declared bankruptcy six years later. Investor Recovery sued Hopkins Associates, asserting claims of fraud by nondisclosure. The district court granted the principals’ motion for a directed verdict after seven days of trial, concluding that Investor Recovery did not prove that the individual investors’ losses were causally connected to the principals’ alleged nondisclosures. The Idaho Supreme Court addressed the applicable standard of review when considering a directed verdict in a fraud by nondisclosure case. Finding the district court used the wrong standard in entering directed verdict in favor of Hopkins Associates, the Supreme Court reversed the district court’s directed verdict, vacated the judgment, and remanded the case for further proceedings.

Medrain v. Lee

Court: Idaho Supreme Court - Civil

Docket: 46819

Opinion Date: April 17, 2020

Judge: Bevan

Areas of Law: Civil Procedure

This case concerned an attempt by Jade Lee and Golden China, LLC, to appeal a magistrate court decision to the district court. The magistrate court awarded Brian Medrain dba Excellence Heating and Cooling (“Medrain”) damages in a breach of contract action against defendants Bing Lee, Jade Lee, and Golden China, LLC. Bing filed a timely pro se notice of appeal to the district court identifying all three defendants as the appellants; however, the notice of appeal was only signed by Bing as the appellant; neither Jade nor the attorney representing the defendants ever signed the notice of appeal. About ten months later the defendants retained new counsel who filed an amended notice of appeal on behalf of all three defendants. Medrain moved to dismiss the appeal. The district court granted Medrain’s motion in part and held that Jade and Golden China, LLC, did not timely appeal the magistrate court’s judgment. Finding no reversible error, the Idaho Supreme Court affirmed.

Nampa Hwy Dist #1 v. Knight

Court: Idaho Supreme Court - Civil

Dockets: 47029, 47071, 47086

Opinion Date: April 17, 2020

Judge: Moeller

Areas of Law: Civil Procedure, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

Nampa Highway District No. 1 (NHD) brought this action seeking to quiet title to a thirty-three-foot-wide strip of land constituting the south half of West Orchard Avenue in Canyon County, Idaho. NHD claimed that a 1941 deed conveyed the land to NHD. Appellants (defendants-below) argued that because the deed was not recorded until 1989, it did not affect their interests pursuant to the “Shelter Rule,” which protected a purchaser with notice if their predecessor in interest was an innocent purchaser. The district court granted summary judgment in NHD’s favor. After review, the Idaho Supreme Court reversed, finding the district court erred in granting summary judgment when there was a genuine issue of material fact as to what a reasonable investigation by Appellants' predecessors in interest would have revealed. The Supreme Court vacated the district court's declaration that NHD was the fee simple titleholder of the right-of-way, and the matter was remanded for further proceedings.

Walsh v. Swapp Law

Court: Idaho Supreme Court - Civil

Docket: 46885

Opinion Date: April 22, 2020

Judge: Roger S. Burdick

Areas of Law: Civil Procedure, Legal Ethics, Professional Malpractice & Ethics

Sharon Walsh retained Swapp Law, PLLC, d/b/a Craig Swapp & Associates ("CS&A") after she was involved in two car accidents in 2013. In the negligence action stemming from the first accident, Walsh followed firm employee Stephen Redd’s advice and settled the case. Walsh then changed representation and, with her new counsel, settled the second case. On March 2, 2017, Walsh filed this action alleging, among other things, that CS&A was negligent in advising her to settle the first case while the second case was still pending and by failing to advise her of an underlying subrogation responsibility in the first case. CS&A moved for summary judgment. It argued that Walsh’s claim was time-barred under Idaho Code section 5-219(4)’s two-year statute of limitations because her malpractice claim began to accrue when she released the first claim. The district court agreed and granted the motion. Walsh timely appeals. Based on its review of the record, the Idaho Supreme Court determined the district court did not err in awarding summary judgment to CS&A. The district court properly determined that Walsh’s claim was time barred under Idaho Code section 5-219 because her cause of action accrued when she signed the release of claims for the First Collision case more than two years prior to her filing the action at hand. Further, the district court properly determined that the fraudulent-concealment provision of Idaho Code section 5-219(4) did not apply because Walsh was put on inquiry of CS&A’s alleged malpractice in June 2015, more than one year prior to filing this action. The district court’s decision granting CS&A’s motion for summary judgment and its final judgment were thus affirmed.

Great Northern Insurance Co. v. Transit Authority of Omaha

Court: Nebraska Supreme Court

Citation: 305 Neb. 609

Opinion Date: April 17, 2020

Judge: Freudenberg

Areas of Law: Civil Procedure

The Supreme Court reversed the decision of the court of appeals dismissing Metro Area Transit's (Metro) appeal of the district court's denial of his motion for summary judgment based on sovereign immunity, holding that the court of appeals had jurisdiction pursuant to Neb. Rev. Stat. 25-1902. The underlying claim was a subrogation action in which Great Northern Insurance Company sought compensation from Metro under the Political Subdivisions Tort Claims Act, Neb. Rev. Stat. 13-901 et seq. Metro moved for summary judgment based on sovereign immunity. The district court denied the motion, and Metro appealed. The court of appeals dismissed the appeal, concluding that it lacked jurisdiction because the denial of a motion for summary judgment is interlocutory and not a final order. At issue was the amendment of Neb. Rev. Stat. 25-1902, which added denials of summary judgment based on a claim of sovereign immunity to the definition of a final order. The statute was amended after the order denying summary judgment was entered but before the thirty-day period to file a timely appeal expired and before Metro filed its notice of appeal. The Supreme Court granted Metro's petition for further review and reversed, holding that the court of appeals had jurisdiction pursuant to the newly amended section 25-1902.

Portfolio Recovery Associates, LLC v. Sanders

Court: Oregon Supreme Court

Docket: S066455

Opinion Date: April 23, 2020

Judge: Flynn

Areas of Law: Civil Procedure, Consumer Law

This case arose from Portfolio Recovery’s action to recover a credit card debt from respondent Jason Sanders under a common-law claim for an "account stated." The parties filed competing motions for summary judgment - Portfolio contending that it was entitled to summary judgment on the merits of its account-stated claim, and Sanders contending that he was entitled to summary judgment on his affirmative defense that the claim was governed by, and barred by, the statute of limitations of Virginia, a state with connections to the underlying credit card agreement. The Court of Appeals held that neither party was entitled to summary judgment, and both parties sought review. This case presented two issues for the Oregon Supreme Court's resolution: (1) whether an account-stated claim was established as a matter of law when a credit card customer failed to object to the amount listed as the "new balance" on a credit card statement; and (2) how Oregon's choice-of-law principles revolve a conflict between competing state statutes of limitations when the relevant substantive law of the two states is the same. The Court concurred with the appellate court's finding that neither party was entitled to prevail on summary judgment, and affirmed that ruling.

A Special Touch v. UC Tax Services

Court: Supreme Court of Pennsylvania

Docket: 30 MAP 2019

Opinion Date: April 22, 2020

Judge: Max Baer

Areas of Law: Business Law, Civil Procedure, Labor & Employment Law

A Special Touch (Salon) was a sole proprietorship owned by Colleen Dorsey (Owner) offering nail, skin, massage, and permanent cosmetic services. After a 2014 audit, the Pennsylvania Department of Labor and Industry (Department), Office of Unemployment Compensation Tax Services (OUCTS) issued a Notice of Assessment to the Salon indicating that it owed unemployment compensation (UC) contributions and interest in the amount of $10,647.93 for the period of 2010 through the second quarter of 2014. This assessment was based on OUCTS’s determination that ten individuals providing work for the Salon had been misclassified as independent contractors rather than employees of the Salon, thus subjecting it to the UC taxes. This discretionary appeal to the Pennsylvania Supreme Court required a determination of what “customarily engaged” meant, as that term was used in Subsection 4(l)(2)(B) of the Unemployment Compensation Law (Law), 43 P.S. section 753(l)(2)(B). In particular, the Supreme Court had to determine whether the phrase required an individual to be involved in an independently established trade, occupation, profession, or business in actuality, as opposed to having the mere ability to be so involved. The Court concluded the phrase “customarily engaged” as used in Subsection 4(l)(2)(B) mandated that an individual actually be involved in an independently established trade, occupation, profession, or business. Because the Commonwealth Court reached a contrary conclusion, the Court reversed.

Trigg v. Children's Hospital of Pgh.

Court: Supreme Court of Pennsylvania

Docket: 3 WAP 2019

Opinion Date: April 22, 2020

Judge: Debra McCloskey Todd

Areas of Law: Civil Procedure, Personal Injury

Appellee Mendy Trigg was the parent of J.T., who, in 2011, was age 4 and afflicted with craniosynostosis. In 2011, J.T. underwent surgery at the Hospital to correct this condition. Afterward, J.T. was transferred for post- operative care to one of Children’s Hospital of Pittsburgh's (“Hospital”) intensive care units. While recovering there, J.T. fell out of the hospital bed, and, as a result, suffered damage to the surgically repaired cranial area, necessitating immediate ameliorative surgery. Subsequently, Appellees filed suit against the Hospital alleging, inter alia, that the Hospital was negligent in placing J.T. in a regular adult size hospital bed, due to the large spaces between the vertical side rails, which they alleged, enabled J.T.'s fall. The Pennsylvania Supreme Court accepted review of this case to consider whether Appellees' argument that the trial court erred by not personally observing the demeanor of prospective jurors they challenged for-cause during voir dire. After careful consideration, the Supreme Court concluded Appellees waived their argument for appellate review, and, thus, that the Superior Court erred in considering it. Accordingly, the Court vacated the Superior Court judgment and remanded for further proceedings.

Ken Smith Auto Parts v. Thomas

Court: Tennessee Supreme Court

Docket: E2018-00928-SC-R11-CV

Opinion Date: April 17, 2020

Judge: Kirby

Areas of Law: Civil Procedure

The Supreme Court clarified the procedure circuit courts must follow when an original defendant in general sessions court appeals an adverse general sessions judgment to circuit court but then fails to appear for the de novo circuit court trial to prosecute his appeal, holding that, in the instant case, the circuit court erred in dismissing Appellant's appeal. When Appellant failed to appear in circuit court to prosecute his appeal from an adverse general sessions court judgment the circuit court dismissed the appeal and remanded this case to the general sessions court for execution of the judgment. The court of appeals reversed the circuit court's order that it lacked subject matter jurisdiction. The Supreme Court affirmed, holding (1) under Tenn. Code Ann. 27-5-106 and -107, the circuit court should have entered a default judgment against Appellant in the amount of the general sessions judgment, subject to execution in the circuit court; and (2) after the circuit court dismissed the appeal and remanded to the general sessions court, the circuit court had subject matter jurisdiction to grant Defendant's motion to set aside its prior order.

Bella Palma, LLC v. Young

Court: Supreme Court of Texas

Docket: 19-0204

Opinion Date: April 17, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, Construction Law

The Supreme Court reversed the judgment of the court of appeals dismissing Appellant's appeal of the trial court's grant of summary judgment for Plaintiff and against Defendants for want of jurisdiction, holding that, contrary to the decision of the court of appeals, the trial court's judgment was final and appealable. Plaintiff sued Defendants for declaratory judgment and monetary damages arising from a commercial construction project. The trial court awarded summary judgment in favor of Plaintiff. Despite the trial court's confirmation of its intent to render a final judgment, the court of appeals concluded that no final judgment had been rendered. The Supreme Court reversed, holding that the court of appeals erred by analyzing the record for evidence of finality after the trial court provided a clear and unequivocal statement that it had intended the appealed-from order to be a final judgment.

Morath v. Lewis

Court: Supreme Court of Texas

Docket: 18-0555

Opinion Date: April 17, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, Education Law

In this complaint alleging ultra vires claims against Mike Morath, in his official capacity as the Commissioner of the Texas Education Agency, the Supreme Court granted Respondents' motion to dismiss this appeal as moot, dismissed the case as moot, and vacated both the judgment and opinion of the court of appeals without respect to the merits, holding that the case must be dismissed as moot. Morath filed a plea to the jurisdiction, alleging that Respondents' claims could not proceed for several reasons. The trial court denied the plea to the jurisdiction, and the court of appeals affirmed. Morath petitioned for review. After Morath filed his merits brief, Respondents decided to stop pursuing their claims and filed a "notice of nonsuit without prejudice." Respondents then moved to dismiss the appeal as moot. Morath opposed the motion to dismiss, arguing that a non-suit was ineffective and, alternatively, that this appeal involved a matter of public concern. The Supreme Court dismissed the appeal, holding that that this case is now moot, and in the absence of jurisdiction this case must be dismissed.