The Oprah Interview as a Truth Commission

LESLEY WEXLER

Illinois Law professor Lesley Wexler explains how Oprah’s interview with Prince Harry and Meghan Markle might illuminate how a formal truth commission to deal with legacies of racism and colonialism might function in the British empire. Professor Wexler describes the purpose and function of state-operated truth commissions and notes the similarities and differences between those and the interview.

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Uzuegbunam v. Preczewski

Court: US Supreme Court

Docket: 19-968

Opinion Date: March 8, 2021

Judge: Clarence Thomas

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

Uzuegbunam, a Georgia Gwinnett College student, talked with interested students and handed out religious literature on campus until a campus police officer informed him that campus policy prohibited distributing religious materials outside two areas designated for that purpose. Speaking about religion or distributing religious materials in those areas required a permit. Uzuegbunam obtained a permit and tried to speak in a free speech zone. A campus officer again asked him to stop, saying that people had complained. Campus policy prohibited using the free speech zone to say anything that “disturbs the peace and/or comfort of person(s).” Uzuegbunam complied. Another student decided not to speak about religion because of these events. The students sought injunctive relief and nominal damages. College officials discontinued the challenged policies. The Eleventh Circuit held that the students’ plea for nominal damages could not establish standing, absent a request for compensatory damages. The Supreme Court reversed. A request for nominal damages satisfies the redressability element necessary for Article III standing where a plaintiff’s claim is based on a completed violation of a legal right. To establish Article III standing, the Constitution requires a plaintiff to identify an injury in fact that is fairly traceable to the challenged conduct and to seek a remedy likely to redress that injury. Under common law, a party whose rights are invaded can recover nominal damages without furnishing evidence of actual damages, without a plea for compensatory damages. Nominal damages are not purely symbolic. One dollar may not provide full redress, but the partial remedy satisfies the redressability requirement and constitutes relief on the merits. In addition to redressability, the plaintiff must establish the other elements of standing and satisfy other relevant requirements, such as pleading a cognizable cause of action.

Cho v. BlackBerry Ltd.

Court: US Court of Appeals for the Second Circuit

Docket: 19-3376

Opinion Date: March 11, 2021

Judge: Gerard E. Lynch

Areas of Law: Civil Procedure, Class Action

Plaintiffs Cho and Ulug, individual named plaintiffs in a putative securities class action, appeal the district court's grant of judgment on the pleadings and dismissal of their claims against defendants. Plaintiffs argue that they should be permitted to rely on the successful appeal by the lead plaintiffs in this case, and that the district court erred in granting judgment on the pleadings and dismissing their claims. The Second Circuit affirmed the district court's judgment and concluded that Federal Rule of Appellate Procedure Rule 3 requires that individual named plaintiffs in a class actions – who, unlike absent class members, have chosen to litigate their claims personally – indicate individually their intent to appeal; Cho and Ulug's failure to appeal the district court's first dismissal of their claims rendered that decision final as to them, and the district court properly dismissed their attempt to renew their claims after the lead plaintiffs successfully appealed; Cho and Ulug's claims against the newly added defendant are barred by res judicata; and the district court did not abuse its discretion in denying reconsideration.

DeSuze v. Ammon

Court: US Court of Appeals for the Second Circuit

Docket: 20-1141

Opinion Date: March 9, 2021

Judge: William J. Nardini

Areas of Law: Civil Procedure, Government & Administrative Law

In 2018 plaintiffs, the former and current tenants of a privately owned affordable housing project, filed suit challenging the regulatory approval of rent increases a decade earlier by HUD and the New York HPD. The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(1) and (6). The Second Circuit held that the tenants lack standing for their procedural violation claim against HUD under the Administrative Procedure Act based on the sequence of regulatory approval because the order of the approval process was not designed to protect the tenants' concrete interests in notice and participation; all of the tenants' APA claims are in any event untimely under 28 U.S.C. 2401(a) because they accrued in April 2011, which is more than six years before they filed their complaint; Section 2401(a) is a claims-processing rule rather than a jurisdictional bar, but the tenants are not entitled to equitable tolling; and the tenants' claims under 42 U.S.C. 1983 against the City and its housing authority are untimely and the continuing violation doctrine does not save those claims because each arises from a discrete approval process. Accordingly, the court affirmed the district court's judgment.

National Veterans Legal Services Program v. Department of Defense

Court: US Court of Appeals for the Fourth Circuit

Docket: 20-1435

Opinion Date: March 11, 2021

Judge: Niemeyer

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

Various statutory provisions and regulations require the DOD to maintain a publicly accessible website containing all decisions rendered by its Discharge Review Boards and Boards for Correction of Military/Naval Records. When the DOD was alerted in 2019 that some posted decisions contained personally identifiable information, it temporarily removed all decisions from the website. Since then, the DOD has slowly been redacting and restoring the decisions to the site. NVLSP filed suit against the DOD and the Secretaries of the military departments to require them to fulfill the statutory mandate of publishing all decisions and to do so promptly. The district court granted defendants' motion to dismiss, ruling that NVLSP lacked Article III standing to bring the action and that the DoD's conduct was not judicially reviewable under the Administrative Procedure Act. The Fourth Circuit affirmed, concluding that although NVLSP has standing to bring this action, the district court lacked subject matter jurisdiction. In this case, NVLSP challenges defendants' ongoing actions in maintaining and managing the website, not any final agency action understood as a discrete agency determination of rights and obligations, as necessary to give a court subject matter jurisdiction under the APA.

Aldridge v. Mississippi Department of Corrections

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-60311

Opinion Date: March 9, 2021

Judge: Jacques Loeb Wiener, Jr.

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

The Fifth Circuit joined the Fourth Circuit in holding that the Fair Labor Standards Act preempts redundant state law tort claims for unpaid minimum wages and overtime compensation when the state's law does not provide for minimum wages and overtime compensation. In this case, Mississippi does not have state labor laws governing minimum wage or overtime, so it would be impossible for Employees to state a claim for wage and hour violations under state law independent of the FLSA. Furthermore, it would be impossible for Employees to state a claim under the FLSA because sovereign immunity bars suit against the DOC. The court explained that the state law claims based on violations of the FLSA similarly fail because of preemption. Therefore, the court concluded that dismissal with prejudice was appropriate. The court affirmed all dispositions of the district court.

St. Charles Surgical Hospital, LLC v. Louisiana Health Service & Indemnity Co.

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-30093

Opinion Date: March 8, 2021

Judge: Cory T. Wilson

Areas of Law: Civil Procedure

After St. Charles filed suit against BCBS in Louisiana state court for state law fraud and abuse-of-right claims, BCBS removed the action to federal court. St. Charles had filed its third-amended petition and produced documents listing claims that involved patients insured under the Federal Employees Health Benefits Act (FEHBA). The Fifth Circuit concluded that the appropriate course is for the district court to determine on remand whether St. Charles's waivers defeat federal officer jurisdiction, because the issue was neither a basis for the district court's decision nor extensively briefed by either party, and because the record was not fully developed in the district court. If St. Charles's waiver of FEHBA-governed claims does not settle the matter, the district court's jurisdiction hinges on a proper analysis of federal officer removal. Weighing the district court's remand order against the clarified test for federal officer removal in Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir. 2020) (en banc), the court concluded that the district court erred in its analysis. First, the district court applied St. Charles I too narrowly in determining that BCBS was not "acting under" OPM merely because St. Charles's claims "do not arise out of procedures dictated by OPM." Furthermore, even though the district court stated that the "causal nexus" element "ha[d] no bearing on the [c]ourt's decision in this case," the court concluded that this issue should be revisited on remand. Accordingly, the court vacated the district court's remand order and remanded for further proceedings.

Williams v. Lockheed Martin Corp.

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-31162

Opinion Date: March 9, 2021

Judge: Priscilla R. Owen

Areas of Law: Civil Procedure, Legal Ethics, Personal Injury

The Fifth Circuit granted panel rehearing; denied rehearing en banc; withdrew its prior opinion; and substituted the following opinion. Frank Williams, Jr. filed suit in Louisiana state court against his former employer, Lockheed Martin, seeking to recover damages for asbestos-related injuries. After Williams passed away, his children were substituted as plaintiffs. Lockheed Martin removed the case under federal officer removal jurisdiction and the district court granted summary judgment for Lockheed Martin, issuing sanctions against plaintiffs' counsel for improper ex parte communications. The court affirmed the district court's judgment, concluding that the district court properly considered the full state-court record as it existed at the time of removal and Lockheed Martin has met the requirements for federal officer removal jurisdiction under 28 U.S.C. 1442(a)(2)(1). In this case, Lockheed Martin alleged the requisite nexus and has stated sufficient facts to make out a colorable Boyle defense. The court also concluded that the district court did not abuse its discretion with respect to any of the challenged discovery orders. The court applied Louisiana law and affirmed the district court's grant of summary judgment in favor of Lockheed Martin on plaintiffs' survival and wrongful death claims. Finally, the court concluded that the district court did not err by imposing sanctions on plaintiffs' attorney and that the district court did not abuse its discretion in awarding $10,000 in attorney's fees.

Stewart v. IHT Insurance Agency Group, LLC

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-3754

Opinion Date: March 5, 2021

Judge: Thapar

Areas of Law: Civil Procedure

Stewart, a co-owner of RRL and president of its subsidiary, IHT, formed a potential competitor. She was removed from the presidency, then launched a smear campaign against her replacement. RRL's other members voted to buy out her ownership interest. Stewart refused to sell her membership units. RRL sued. Stewart counterclaimed. As part of the buyout, RRL cut off Stewart’s health- and life insurance benefits. Stewart alleged that she remained an active member of RRL and was entitled to those benefits. An arbitration panel sided with RRL on all issues and ordered Stewart to sell her membership units and to release all claims against RRL and its affiliates “from the beginning of the world” to that day. The state court affirmed. During the arbitration, Stewart and her son filed this lawsuit, claiming that IHT violated the Employee Retirement Income Security Act, 29 U.S.C. 1161–1163. The district court dismissed the complaint with prejudice on alternative grounds: Stewart had released all her claims and res judicata barred her from relitigating her removal from RRL and discontinued benefits. On appeal, the Stewarts challenged only whether Stewart released all of her claims. The Sixth Circuit affirmed. The Stewarts forfeited any right to challenge the res judicata ruling. Even if Stewart’s claims were not released, the res judicata conclusion would still stand. The Stewarts needed to win two arguments for reversal of the dismissal.

Cassell v. Snyders

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1757

Opinion Date: March 8, 2021

Judge: HAMILTON

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

The church holds weekly in-person worship services attended by approximately 80 people. Its pastor suspended these services after he received a March 31, 2020 “Cease and Desist Notice” from the county health department that threatened penalties under Illinois Executive Order 2020-10, issued March 20, 2020, if the church continued to host in-person gatherings of ten or more people. The Plaintiffs sought a preliminary injunction, citing the First Amendment and the Illinois Religious Freedom Restoration Act and alleging violations of their due process rights and that the Order exceeded the governor’s powers. On May 29, months before plaintiffs filed their appellate brief, the governor issued Executive Order 2020-38, which removed the mandate. All subsequent pandemic-related executive orders have expressly exempted religious gatherings from mandatory restrictions. The Seventh Circuit affirmed the denial of a preliminary injunction. While intervening Supreme Court decisions offer a greater prospect for success on the merits of the First Amendment claim than previously expected, they have also indicated that equitable considerations weigh against granting a preliminary injunction at this time. The prospect of irreparable injury to the plaintiffs is very low; the public interest weighs substantially against injunctive relief. The federal procedural due process claim was not presented to the district court. The Eleventh Amendment bars relief against the governor; it may also bar relief against the local defendants. All of the state-law claims are poor candidates for a federal court’s exercise of supplemental jurisdiction.

DRASC, Inc. v. Navistar, Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1821

Opinion Date: March 11, 2021

Judge: Frank Hoover Easterbrook

Areas of Law: Civil Procedure, Class Action

A class of owners accused Navistar of selling trucks with defective engines. The suit was settled for $135 million. The district court gave its preliminary approval. A court-approved Rule 23(e) notice was sent by first-class mail to all class members describing the settlement terms and the option to litigate independently. The notice's opt-out instructions included a link to a website with the full details and a phone number. The court held a fairness hearing then entered a final judgment implementing the settlement. Class member Drasc had sued Navistar in Ohio concerning the truck engines. The federal court declined to enjoin parallel state court suits, so the Ohio case proceeded while the federal action was pending. After the court approved the settlement, Navistar notified Drasc that its suit is barred by the release in the settlement. Drasc argued that it never received notice of the settlement and that its effort to continue litigating in Ohio should be deemed a “reasonable indication” of a desire to opt-out. The Seventh Circuit affirmed the rejection of Drasc’s arguments, noting findings that two first-class letters were sent to Drasc at its business addresses; Drasc had not provided an email address for notice; Drasc’s Ohio lawyers had actual notice of the settlement and must have known about the need to opt-out. Drasc had actual knowledge of the need to opt-out and could not show excusable neglect that would justify an extension of the opt-out deadline.

Nicole K. v. Stigdon

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1525

Opinion Date: March 5, 2021

Judge: Frank Hoover Easterbrook

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Family Law, Juvenile Law

When Indiana officials determine that a child is suffering abuse or neglect, they initiate the Child in Need of Services (CHIN) process. Lawyers are automatically appointed for parents but not for children in the CHINS process. The plaintiffs, children in the CHINS process, claimed that they are entitled to counsel. The Seventh Circuit affirmed the dismissal of the suit, citing “Younger” abstention. While declining to decide that Younger would mandate abstention in all CHINS cases, the court reasoned that principles of comity entitle states to make their own decisions. Because children are not automatically entitled to lawyers, as opposed to the sort of adult assistance that Indiana routinely provides, it would be inappropriate for a federal court to resolve the appointment-of-counsel question in any of the 10 plaintiffs’ state proceedings. A state judge may decide to appoint counsel or may explain why counsel is unnecessary.

Pennell v. Global Trust Management, LLC

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1524

Opinion Date: March 11, 2021

Judge: Brennan

Areas of Law: Civil Procedure, Consumer Law

Pennell defaulted on a loan, then sent MobiLoans a letter refusing to pay her debt and requesting that all future debt communications cease. MobiLoans sold Pennell’s debt to Global, which had no knowledge that Pennell refused to pay and that she was represented by counsel. Pennell received a dunning letter from Global. Through counsel, Pennell notified Global that she refused to pay the debt and requested all debt communications stop. Global complied. Pennell sued under 15 U.S.C. 1692c(a)(2), the Fair Debt Collection Practices Act, which prohibits a debt collector from directly communicating with a consumer who is represented by counsel with respect to the debt and proscribes a debt collector from directly communicating with a consumer who notifies a debt collector in writing that she refuses to pay or that she wishes the collector to stop communicating with her. Pennell claimed “stress and confusion” as her injuries. The district court granted Global summary judgment on the merits. The Seventh Circuit vacated and ordered dismissal for lack of Article III standing. A party invoking federal jurisdiction must demonstrate that he has suffered an injury in fact that is fairly traceable to the defendant’s conduct and redressable by a favorable judicial decision. The state of confusion is not itself a “concrete and particularized” injury. Nor does stress, without physical manifestations or a medical diagnosis, amount to concrete harm. Pennell failed to show that receiving the dunning letter led her to change her course of action or put her in harm’s way.

Vette v. Sanders

Court: US Court of Appeals for the Tenth Circuit

Docket: 20-1118

Opinion Date: March 5, 2021

Judge: Carolyn Baldwin McHugh

Areas of Law: Civil Procedure, Civil Rights, Personal Injury

Defendant-appellant Keith Sanders, a sergeant with the Montrose County Sheriff’s Office, appealed the denial of his summary judgment motion based on qualified immunity. Plaintiff-appellee Eric Vette filed a verified complaint alleging, among other things, that Sergeant Sanders subjected him to excessive force during the course of his arrest by committing the following acts after Vette had already been apprehended: punching Vette, hitting him in the face with a dog chain, and letting a police dog attack him. Sergeant Sanders moved to dismiss the complaint, or, in the alternative, for summary judgment, arguing he was entitled to qualified immunity. The district court converted Sergeant Sanders’s motion to one for summary judgment and denied it. Sergeant Sanders appealed, invoking the collateral order doctrine as the purported basis for appellate jurisdiction. The Tenth Circuit determined, however, that it lacked jurisdiction over Sergeant Sanders’ appeal to the extent his arguments depended on facts that differed from those the district court assumed in denying his summary judgment motion. Exercising jurisdiction over the abstract issues of law advanced by Sergeant Sanders, the Court held the district court did not err.

Breland v. United States

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-14321

Opinion Date: March 10, 2021

Judge: Newsom

Areas of Law: Bankruptcy, Civil Procedure, Constitutional Law

After debtor voluntarily filed for Chapter 11 bankruptcy, the bankruptcy court determined that he was transferring assets and defrauding creditors. The bankruptcy court removed him as the debtor-in-possession and appointed a trustee to administer the estate. Debtor appealed, arguing that the trustee's appointment violated his Thirteenth Amendment right to be free from "involuntary servitude"—because, he said, under the trustee's direction, all of his post-petition earnings would be put into the bankruptcy estate for the benefit of his creditors. The bankruptcy court dismissed debtor's Thirteenth Amendment claim as unripe, and the district court similarly held that debtor could not show an injury-in-fact sufficient to confer Article III standing. The Eleventh Circuit reversed and held that debtor's loss of authority and control over his estate, which he suffered as a result of his removal as the debtor-in-possession, constitutes an Article III-qualifying injury-in-fact that is both traceable to the bankruptcy court's appointment of the trustee and redressable by an order vacating that appointment. Therefore, debtor has standing to pursue his Thirteenth Amendment claim. The court left it to the district court on remand to consider the merits of debtor's arguments.

Taylor Energy Co., L.L.C. v. Department of the Interior

Court: US Court of Appeals for the Federal Circuit

Docket: 20-1909

Opinion Date: March 9, 2021

Judge: O'Malley

Areas of Law: Civil Procedure, Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law

Taylor Energy leased and operated Gulf of Mexico oil and gas properties, on the Outer Continental Shelf, offshore Louisiana. In 2004, Hurricane Ivan destroyed those operations, causing oil leaks. The Outer Continental Shelf Lands Act, the Clean Water Act, and the Oil Pollution Act required Taylor to decommission the site and stop the leaks. Taylor and the Department of the Interior developed a plan. Interior approved Taylor’s assignments of its leases to third parties with conditions requiring financial assurances. Three agreements addressed how Taylor would fund a trust account and how Interior would disburse payments. Taylor began decommissioning work. In 2009, Taylor proposed that Taylor “make the full final deposit into the trust account,” without any offsets, and retain all insurance proceeds. Interior rejected Taylor’s proposal. Taylor continued the work. In 2011, Taylor requested reimbursement from the trust account for rig downtime costs. Interior denied the request. In 2018, the Interior Board of Land Appeals (IBLA) affirmed Interior’s 2009 and 2011 Decisions. Taylor filed suit in the Claims Court, asserting contract claims. The Federal Circuit affirmed the dismissal of the suit, rejecting “Taylor’s attempt to disguise its regulatory obligations as contractual ones,” and stating an IBLA decision must be appealed to a district court. In 2018, Taylor filed suit in a Louisiana district court, seeking review of the IBLA’s 2018 decision and filed a second complaint in the Claims Court, alleging breach of contract. On Taylor's motion, the district court transferred the case, citing the Tucker Act. The Federal Circuit reversed. The Claims Court does not have subject matter jurisdiction over this case. Taylor is challenging the IBLA Decision and must do so in district court under the APA.

Kimp v. Fire Lake Plaza II, LLC

Court: Alaska Supreme Court

Docket: S-17298

Opinion Date: March 5, 2021

Judge: Craig F. Stowers

Areas of Law: Business Law, Civil Procedure, Landlord - Tenant

A business owner formed a brewing company with plans to open a brewpub. He signed a lease that provided rent-free access to a commercial unit for a period of time to allow him to prepare the rental space prior to opening for business. But the brewing company encountered numerous delays during construction and did not open for business as planned. It also did not pay rent once the rent-free period ended. After the property owner received no rent for several months, it entered the property and changed the locks. The business owner then sued, claiming the property owner breached the lease, tortiously interfered with a business relationship, and breached the implied covenant of good faith and fair dealing. The property owner counterclaimed that the brewing company breached the lease. On cross-motions for summary judgment, the superior court dismissed all claims against the property owner and ruled in the property owner’s favor on its counterclaim. The court also denied the business owner’s request to compel discovery and awarded the property owner over $200,000 in damages. The business owner appealed the superior court’s grants of summary judgment, its denial of his motion to compel discovery, and its award of damages. Finding no reversible error, the Alaska Supreme Court affirmed.

In re R.A.

Court: California Courts of Appeal

Docket: A161510(First Appellate District)

Opinion Date: March 11, 2021

Judge: Miller

Areas of Law: Civil Procedure, Family Law, Juvenile Law

Father and Mother lived together for a few years and are the parents of Minor, who was born in 2014. By 2018, Mother was raising her children—Minor and Minor’s three older half-siblings—on her own, and she did not know Father’s whereabouts. The Alameda County Social Services Agency filed a juvenile dependency petition on behalf of the children, listing Father’s name but stating his address was unknown. On November 12, 2019, the Agency filed a status review report for the six-month review hearing; 13 months after the original petition was filed, the Agency first listed an address for Father as the California State Prison. Father subsequently was deemed Minor’s presumed father and was released from custody. The juvenile court summarily denied his motion under Welfare and Institutions Code section 388 to set aside prior findings, without a hearing. The court of appeal set aside the juvenile court’s order setting a hearing under section 366.26 to consider termination of parental rights, guardianship, or another permanent plan. Father sufficiently raised the possibility that the Agency failed to use due diligence to locate him and sufficiently stated a notice violation to warrant an evidentiary hearing.

Karton v. Ari Design & Construction, Inc.

Court: California Courts of Appeal

Docket: B298003(Second Appellate District)

Opinion Date: March 9, 2021

Judge: Wiley

Areas of Law: Civil Procedure, Legal Ethics

After plaintiff filed suit against defendant and won a judgment for $133,792.11 plus postjudgment interest, plaintiff sought attorney fees of $271,530, which were later increased to $287,640 in the trial court and now to $292,140 in this court. The trial court awarded $90,000 in attorney fees. The Court of Appeal affirmed the trial court's award of attorney fees, concluding that the trial court used sound discretion to limit the attorney fees to $90,000. The trial court began with the conventional lodestar calculation and gave good reasons for concluding that 600 plus hours was reasonable. However, the court reversed the trial court's ruling that plaintiff had no basis to collect the $90,000 award from an insurance company called Wesco that had posted a surety bond for defendant. Rather, the court concluded that the liability of the surety is commensurate with the liability of its principal. In this case, by statute, the court concluded that defendant must pay the attorney fees as a matter of costs and so too must Wesco. Accordingly, the court remanded for the trial court to amend the judgment to make surety Wesco liable for the $90,000 fee award as an item of costs.

Monzo v. Nationwide Property & Casualty Insurance Co.

Court: Delaware Supreme Court

Docket: 199, 2020

Opinion Date: March 11, 2021

Judge: Montgomery-Reeves

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

In 2011, Appellants Eric Monzo and Dana Spring Monzo purchased a homeowners insurance policy issued by Appellee Nationwide Property & Casualty Co. (“Nationwide”). The policy contained standard exclusions for water damage and earth movement, along with optional water backup coverage. In July 2017, a heavy thunderstorm destroyed a pedestrian bridge and retaining wall located at the Monzos’ residence. A pair of engineering reports prepared after the storm indicated that a combination of water backups from drainage systems, scouring of supporting earth embankments, heavy rain, and tree debris caused the damage. The Monzos filed a claim with Nationwide, seeking coverage under the homeowners insurance policy. Nationwide denied coverage, and the Monzos sued. The court granted summary judgment for Nationwide, holding that the policy’s earth movement and water damage exclusions applied. The Monzos appealed, arguing the Superior Court erred by granting summary judgment too early in the discovery process, misinterpreting the policy, and denying a motion for post-judgment relief. Having reviewed the briefs and record on appeal, the Delaware Supreme Court: (1) affirmed the Superior Court’s holding that Nationwide was entitled to summary judgment regarding the collapsed bridge; (2) reversed the Superior Court’s holding that Nationwide was entitled to summary judgment regarding the retaining wall; and (3) affirmed the Superior Court’s denial of the Monzos’ post-judgment motion.

Hyundai Motor America, et al. v. Applewhite, et al.

Court: Supreme Court of Mississippi

Citation: 2015-CA-01886-SCT

Opinion Date: March 11, 2021

Judge: Michael K. Randolph

Areas of Law: Civil Procedure, Legal Ethics, Personal Injury

This case arose from a two-car accident in Mississippi in which a Hyundai Excel was traveling southbound at a closing speed of 68 to 78 mph and, for reasons unknown, crossed the center line into the oncoming lane of traffic, striking a Lincoln Continental passenger car traveling northbound. None of the three Excel occupants survived the collision. This case made it to the Mississippi Supreme Court after an earlier appeal and remand for a new trial. During the remand proceedings, multiple discovery disputes ensued before the trial court ultimately held two 606(b) hearings on October 30, 2018, and January 23, 2019 (nearly four years after the trial court’s original denial of relief). The trial court expressly found that one of Applewhite’s counsel, Dennis Sweet, III, misrepresented his relationship with a witness, Carey Sparks, during the April 2015 hearing. It was not until a January 25, 2018 hearing, that Sweet admitted that he had paid Sparks to perform services during the Applewhite trial. This admission was made only after documents evidencing multiple payments to Sparks by Sweet surfaced in the discovery ordered by the Supreme Court. During discovery, multiple witnesses, including six attorneys, testified that Sparks stated that he had knowledge of discussions of the jurors during the trial. Following the 606(b) hearings, the trial court issued a one-paragraph order, finding that the posttrial testimony of the jurors offered no evidence supporting Defendants’ allegations. Reviewing the trial court proceedings, the Mississippi Supreme Court concluded "a fair and impartial trial was not had." The Court found "overwhelming evidence of actual impropriety, which destroys any confidence in the jury verdict. The facts developed in this record threaten the public’s confidence in our system of justice. We find that this case is permeated by actual deception upon the trial court, which led to Plaintiffs’ obtaining a favorable ruling. Such improper acts of misconduct leave a indelible stain on these proceedings. We are loathe to overturn jury verdicts, yet justice dictates a reversal and a retrial, unencumbered by extraneous assaults on our justice system. We considered the ultimate sanction of dismissal of this case with prejudice. We decline to impose such a severe sanction, for no evidence suggests that any Plaintiff employed Sparks or had knowledge of Sparks’s actions. But the judgment must be reversed." This case was remanded for a new trial.

In the Matter of The Stewardship of the Public Trust Tidelands

Court: Supreme Court of Mississippi

Citation: 2020-SA-00174-SCT

Opinion Date: March 11, 2021

Judge: Maxwell

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

The City of Biloxi (City), the Secretary of State on behalf of the State of Mississippi (State), and the Board of Trustees of the State Institutes of Higher Learning (IHL) settled an ownership dispute over coastal property leased to a casino, and agreed how to divide the annual casino rent. Seventeen years later, the City asked the chancery court to declare that it could adjust for inflation its base amount of rent received before divvying up its rent with the State and the IHL. But the City’s only support of its new inflation-adjustment claim was the three public entities’ lease with the casino. While the casino lease required the minimum amount of rent owed be adjusted for inflation every five years, the casino lease did not govern how the City, the State, and the IHL were to divide the rent. Instead, the manner in which rent was divided is governed solely by the settlement agreement. And the settlement agreement was silent with respect to an inflation adjustment. The Mississippi Supreme Court found, however, the agreement was clear: the City received a specific sum, and any rent in excess of that exact amount had to be shared with the State and the IHL.

Arredondo v. SNH SE Ashley River Tenant, LLC

Court: South Carolina Supreme Court

Docket: 28011

Opinion Date: March 10, 2021

Judge: James

Areas of Law: Arbitration & Mediation, Civil Procedure, Medical Malpractice, Personal Injury

This appeal concerned the enforceability of an arbitration agreement executed between Ashley River Plantation, an assisted-living facility, and Thayer Arredondo, the attorney-in-fact under two powers of attorney executed by Hubert Whaley, a facility resident. When Whaley was admitted into the facility, Arredondo held two valid powers of attorney, a General Durable Power of Attorney (GDPOA) and a Health Care Power of Attorney (HCPOA). Arredondo met with a facility representative and signed various documents in connection with Whaley's admission. During that meeting, the facility representative did not mention or present an arbitration agreement to Arredondo. Later that day, after Whaley was admitted, Arredondo met with a different facility representative who, according to Arredondo, told her she "needed to sign additional documents related to [her] father's admission to the facility." Included among those documents was the arbitration agreement, which Arredondo signed. The arbitration agreement contained a mutual waiver of the right to a trial by judge or jury, and required arbitration of all claims involving potential damages exceeding $25,000. The agreement barred either party from appealing the arbitrators' decision, prohibited an award of punitive damages, limited discovery, and provided Respondents the unilateral right to amend the agreement. Two years into his stay at the facility, Whaley was admitted to the hospital, where he died six years later. Arredondo, as Personal Representative of Whaley's estate, brought this action alleging claims for wrongful death and survival against Respondents. The complaint alleged that during his residency at the facility, Whaley suffered serious physical injuries and died as a result of Respondents' negligence and recklessness. In an unpublished opinion, the court of appeals held the arbitration agreement was enforceable. The South Carolina Supreme Court held neither power of attorney gave Arredondo the authority to sign the arbitration agreement. Therefore, the court of appeals was reversed.

Nationwide Mutual Ins. Co. v. Walls

Court: South Carolina Supreme Court

Docket: 28012

Opinion Date: March 10, 2021

Judge: Kaye Gorenflo Hearn

Areas of Law: Civil Procedure, Insurance Law, Personal Injury

Nationwide Mutual Insurance Company ("Nationwide") relied on flight-from-law enforcement and felony step-down provisions in an automobile liability insurance policy to limit its coverage to the statutory mandatory minimum. Following a bench trial and after issuance of the South Carolina Supreme Court's opinion in Williams v. Government Employees Insurance Co. (GEICO), 409 S.C. 586 (2014), the circuit court held the step-down provisions were void pursuant to Section 38-77-142(C) of the South Carolina Code (2015). The court of appeals reversed. Three individuals, Sharmin Walls, Randi Harper, and Christopher Timms, were passengers in a vehicle driven by Korey Mayfield that crashed in 2008 following a high-speed chase by law enforcement. Mayfield refused to pull over, and during the chase, the trooper's vehicle reached speeds of 109 miles per hour. All the passengers begged Mayfield to stop the car, but Mayfield refused. Eventually, the trooper received instructions to terminate the pursuit, which he did. Nevertheless, Mayfield continued speeding and lost control of the vehicle. Timms died in the single-car accident, and Walls, Harper, and Mayfield sustained serious injuries. After being charged with reckless homicide, Mayfield entered an Alford plea. At the time of the accident, Walls' automobile was insured through her Nationwide policy, which included bodily injury and property damage liability coverage with limits of $100,000 per person and $300,000 per occurrence. Walls also maintained uninsured motorist (UM) coverage for the same limits, but she did not have underinsured motorist (UIM) coverage. In reliance on the aforementioned provisions, Nationwide paid only $50,000 in total to the injured passengers (the statutory minimum as provided by law) rather than the liability limits stated in the policy. Safe Auto, Mayfield's insurance company, also paid a total of $50,000 to the passengers. Nationwide brought this declaratory judgment action requesting the court declare that the passengers were not entitled to combined coverage of more than $50,000 for any claims arising from the accident. Walls answered, denying there was any evidence that the flight-from-law enforcement and felony provisions applied. The South Carolina Supreme Court reversed the court of appeals, holding that section 38-77-142(C) rendered Nationwide's attempt to limit the contracted-for liability insurance to the mandatory minimum void.

Palmetto Construction Group, LLC v. Restoration Specialists, LLC

Court: South Carolina Supreme Court

Docket: 28010

Opinion Date: March 10, 2021

Judge: Few

Areas of Law: Arbitration & Mediation, Civil Procedure, Contracts

At issue in this appeal was a civil action to collect a debt under a contract that contained an arbitration provision. The defendants appealed the master in equity's order refusing to set aside the entry of their default. The court of appeals dismissed the appeal on the basis that an order refusing to set aside an entry of default was not immediately appealable. The defendants filed a petition for a writ of certiorari claiming the order was immediately appealable because it had the effect of precluding their motion to compel arbitration, and in fact, the order states, "Defendants' motion to stay and compel arbitration is denied as [the defendants are] in default." Finding no reversible error, the South Carolina Supreme Court affirmed the court of appeals.