Montana Personal Injury & Civil Litigation Blog

Whack Attack! Montana Supreme Court First Ever to Issue Whack-A-Mole Smackdown In Published Majority Opinion

2011-07-14T10:35:00.001-07:00

If you've been practicing law for more than a handful of years, you've seen the "whack-a-mole" style of litigation: Try one thing, then another, then another; there exists a path around every tree in Elastic Morality Forest, and the possibilities are endless! The sun does not shine at night (Alaskans exempt), but if a blistering midnight sunburn gets you past summary judgment, draft the affidavit while I grab my stamp.

For those of you that feel cabined by truth and common sense, the time for celebration is here. The Montana Supreme Court has gifted to frustrated jurisprudentials (it's a word, starting now) everywhere the first-ever majority published opinion to mete out a "whack-a-mole" smack-down. Touris v. Flathead County , 2011 MT 165, ¶ 22, 361 Mont. 172, 258 P.3d 1. In Touris, a plaintiff on his third trip to the Supremes argued that res judicata did not bar the continued prosecution of his claims because, under Restatement (Second) of Judgements s 26, he had previously "split" them between separately-filed causes. Sending that Zero to its firey grave, the Supreme Court observed:

¶ 22 [T]his is not a claim-splitting case but, rather, one in which the original complaint was drafted so broadly that the judgment in that action precluded the second action . . . A plaintiff cannot continually seek re-litigation of issues under the guise of 'claim-splitting.' To accept Touris' position would frustrate a purpose of res judicata, protecting defendants from repetitive lawsuits, and instead encourage a veritable whack-a-mole of contemporaneously-filed duplicative lawsuits based upon identical claims.

¶ 23 Affirmed.

That's right -- "a veritable whack-a-mile of contemporaneously-filed duplicative lawsuits based upon identical claims" is the last sentence of the opinion, and the PG-rated version of this blog thinks that's pretty B.A. Others have previously expressed similar frustrations, but no one has ever had the gavels to come out and say what we've always known: the law abhors moles, particularly those who've been whacked once already. See e.g., TR Investors, LLC v. Genger, 2010 WL 2901704, *12 (Del. Ch. 2010) (acknowledging the defendant's game of "whack a mole" and further brilliantly noting that "[i]t is possible, nevertheless, to sift through the heaping stew pot filled with every conceivable exculpatory theory that ever crossed his lawyers' inventive minds that Genger's lawyers have cooked up and identify the chunkier ingredients."); but see Kenko Corp. v. Cincinnati, 917 N.E.2d 888, par. 40 (Ohio App. 2009) (noting in a concurrence that "I thought we had put that foolishness safely to rest in McVey and Hacker. But it seems a whack-a-mole situation -- the argument keeps popping up. Unfortunately, the dissent will just keep encouraging the moles.").

We were amazed and slightly discouraged to learn that a Westlaw search of "whack-a-mole" yields just six measley results -- including Touris -- and believe that the time has finally come to start unleashing whack-a-mole-style beatdowns at appropriate times and places. Don't abuse this new-found and soon-to-be-cherished penumbral right; you can immunize a mole to this sort of extermination technique if you fail to properly dose and deploy. So whack the mole, don't become one.

Montana Real Estate Malpractice (Professional Negligence)

2011-06-26T08:43:00.000-07:00

Between Gary and C.J., we've handled more than 150 real estate malpractice lawsuits and claims. The duties of seller's, buyer's, and dual agents under Montana law are set by the Montana Real Estate Licensing Act. See M.C.A. 37-51-313. The MRELA sets agent and broker duties and provides:

(2) A seller agent is obligated to the seller to:
(a) act solely in the best interests of the seller, except that a seller agent, after written disclosure to the seller and with the seller's written consent, may represent multiple sellers of property or list properties for sale that may compete with the seller's property without breaching any obligation to the seller;
(b) obey promptly and efficiently all lawful instructions of the seller;
(c) disclose all relevant and material information that concerns the real estate transaction and that is known to the seller agent and not known or discoverable by the seller, unless the information is subject to confidentiality arising from a prior or existing agency relationship on the part of the seller agent with a buyer or another seller;
(d) safeguard the seller's confidences;
(e) exercise reasonable care, skill, and diligence in pursuing the seller's objectives and in complying with the terms established in the listing agreement;
(f) fully account to the seller for any funds or property of the seller that comes into the seller agent's possession; and
(g) comply with all applicable federal and state laws, rules, and regulations.

(3) A seller agent is obligated to the buyer to:
(a) disclose to a buyer or the buyer agent any adverse material facts that concern the property and that are known to the seller agent, except that the seller agent is not required to inspect the property or verify any statements made by the seller;
(b) disclose to a buyer or the buyer agent when the seller agent has no personal knowledge of the veracity of information regarding adverse material facts that concern the property;
(c) act in good faith with a buyer and a buyer agent; and
(d) comply with all applicable federal and state laws, rules, and regulations.

(4) A buyer agent is obligated to the buyer to:
(a) act solely in the best interests of the buyer, except that a buyer agent, after written disclosure to the buyer and with the buyer's written consent, may represent multiple buyers interested in buying the same property or properties similar to the property in which the buyer is interested or show properties in which the buyer is interested to other prospective buyers without breaching any obligation to the buyer;
(b) obey promptly and efficiently all lawful instructions of the buyer;
(c) disclose all relevant and material information that concerns the real estate transaction and that is known to the buyer agent and not known or discoverable by the buyer, unless the information is subject to confidentiality arising from a prior or existing agency relationship on the part of the buyer agent with another buyer or a seller;
(d) safeguard the buyer's confidences;
(e) exercise reasonable care, skill, and diligence in pursuing the buyer's objectives and in complying with the terms established in the buyer broker agreement;
(f) fully account to the buyer for any funds or property of the buyer that comes into the buyer agent's possession; and
(g) comply with all applicable federal and state laws, rules, and regulations.

(5) A buyer agent is obligated to the seller to:
(a) disclose any adverse material facts that are known to the buyer agent and that concern the ability of the buyer to perform on any purchase offer;
(b) disclose to the seller or the seller agent when the buyer agent has no personal knowledge of the veracity of information regarding adverse material facts that concern the property;
(c) act in good faith with a seller and a seller agent; and
(d) comply with all applicable federal and state laws, rules, and regulations.

* * *

(7) A dual agent is obligated to a seller in the same manner as a seller agent and is obligated to a buyer in the same manner as a buyer agent under this section except that a dual agent has a duty to disclose to a buyer or seller any adverse material facts that are known to the dual agent, regardless of any confidentiality considerations.

* * *

(12) Consistent with the licensee's duties as a buyer agent, a seller agent, a dual agent, or a statutory broker, a licensee shall endeavor to ascertain all pertinent facts concerning each property in any transaction in which the licensee acts so that the licensee may fulfill the obligation to avoid error, exaggeration, misrepresentation, or concealment of pertinent facts.

As you can see, the MRELA is not a one-size-fits-all scheme; agent duties vary greatly relative to their role as a seller's, buyer's, or dual agent, the information communicated, and the individual with whom they are dealing when that communication occurs. Most frequently, we see real estate malpractice (also referred to as professional negligence) claims arise where: (1) the seller's agent or broker allegedly fails to disclose an adverse material fact; (2) the buyer's agent or broker allegedly fails to recommend follow up on potential adverse material facts; (3) the buyer's agent or broker recommends against a home inspection on new or relatively new home construction; or (4) a dual agency relationship exists and the agent or broker allegedly fails to promptly and accurately communicate information between the parties. Unquestionably, the most frequent type of real estate agent or broker malpractice we see arises over the alleged failure to disclose adverse material facts.

Listen, people: If you know it, disclose it. If you're wondering whether you should disclose it, disclose it. If you're worried about what will happen if you do disclose it, find out by disclosing it. There is a theme here . . . .

Statutes of Limitation for Car, Truck, and Motorcycle Accidents in Montana

2009-03-14T10:46:00.000-07:00

We get calls on this issue all of the time: How long do I have to sue? For a Montana car, truck, or motorcycle accident, the following general rules apply:

You have three years from the date of a negligently-caused automobile accident in which to sue the responsible driver(s) for your personal injuries. See M.C.A. 27-2-204; St. Paul Fire & Marine Ins. Co. v. Glassing (1994), 269 Mont. 76, 79-80, 887 P.2d 218, 220-221. If you are contemplating suit against your own uninsured or underinsured motorist carrier, the eight-year limitations period for written contracts applies. See Farmers Alliance Mut. Ins. Co. v. Holeman, 1998 MT 155, ¶¶ 19-21, 289 Mont. 312, 961 P.2d 114.

When and why your limitations period runs depends on the facts. You've probably heard it before; seek professional help.

How to Cite Unpublished Opinions Without Being Woodsheded By Montana's State and Federal Courts

2009-03-10T21:20:00.001-07:00

So what's up with unpublished opinions? I've got one right here, it's on paper, looks published to me. Unpublished opinions are also sometimes referred to as "non-citable" opinions, but this too, is problematic. Turns out some unpublished opinions -- even though they have been published -- are citable notwithstanding the traditional "non-citable" moniker. But only at certain times, and in certain courts. Does this make sense? Not particularly, no. Should we just follow the rule and let someone else carry the intellectual freight on this one? Probably, yes.

Montana doesn't really have a "rule" in the Rules (it's an internal operating rule). But the Court will promptly box your ears for citing its non-precedential opinions back to it, under any circumstances. State v. Oie, 2007 MT 328, ¶¶ 15-16, 340 Mont. 205, 174 P.3d 937. In Oie, both parties cited unpublished opinions on appeal. The Court observed:

Once again we take this opportunity to stress that unpublished orders and opinions from this Court are not to be cited as precedent. Indeed, unpublished opinions begin with an unambiguous and specific directive to counsel: 'the following decision shall not be cited as precedent.' These sorts of orders and opinions are unpublished for a reason. And, we admonish counsel not to cite or rely on such orders and opinions in the future. Moreover, when included in briefs, we give no regard to such citations. Our decision here disregards both Oie's and the State's improper citations.

Id. at ¶ 16. So the rule in Montana is: Don't do it, and expect a "la la la we can't hear you" just as soon as you do. The Ninth Circuit's more permissive take on the issue is codified at Rule 36-3, which states that you can cite unpublished dispositions decided after January 1, 2007, but that pre-2007 opinions may be cited only under limited circumstances. It all raises more questions than answers, but lacking the time and available brain space for a more thoughtful philosophical discussion, there you go.

Robert Timothy Reagan at the Federal Judicial Center has put together a fantastic schematic outlining the federal circuits' treatment of unpublished opinions. A similar state-level outline has been put together by Karen S. Brenda at the Boston College Law Library, and it is also quite good. And for all of you holdouts looking for an interesting and strikingly sane take on why unpublished opinions do more harm than good and are just bad news generally -- and who isn't? -- read Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000). A word of caution before you run out and try Anastastoff on the Ninth Circuit; it was already rejected in Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001).

MSC Addresses MCPA, More to Follow PDQ

2009-03-02T17:55:00.000-08:00

The Montana Consumer Protection Act (MCPA) declares that "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful." M.C.A. 30-14-103. The MCPA does not further define "unfair" or "deceptive," however, and the terms' meaning and application have been less-than-uniform at the district court level.

For all of you understandably riddled with fear and doubt over this issue, congratulations. The Montana Supreme Court has sensibly defined "unfair," and signaled that it will do much the same with "deceptive." See Rohrer v. Knudson, 2009 MT 35, ¶¶ 27-32, ___ Mont. ___, ¶¶ 27-32, ___ P.3d ___, ¶¶ 27-32. In Rohrer, Plaintiffs sued over, inter alia, violation of the MCPA for various residential construction defects. Id. at ¶¶ 5-12, 32. Following a mixed verdict, the plaintiffs appealed the district court's "unfair" MCPA instruction.

On appeal, the Montana Supreme Court noted that the MCPA did not define the term; however, it nonetheless expressed a legislative intent to give "due consideration and weight" to the Federal Trade Commission and federal courts' interpretations of Section 5(a)(1) of the Federal Trade Commission Act. Rohrer, ¶ 27. Though a matter of first impression, the Montana Supreme Court recognized that the majority of jurisdictions (at least a dozen) with consumer protection acts similar to the MCPA interpet unfairness under the "landmark" case, FTC v. Sperry & Hutchison Co. (S & H), 405 U.S. 233 (1972). The S & H Court recognized the following FTC criterion to determine whether a practice qualifies as "unfair":

(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise -- whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).

Id.

The Montana Supreme Court reduced this FTC gobbledygook into readable form: "We hold as a matter of law that an unfair act or practice is one which offends established public policy and which is either immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." Rohrer, ¶ 31 (emphasis added). Though the Court did not prescribe a particular framework, it seems that the district court must first engage in the penumbral rights analysis and declare or reject the particular public policy as a matter of law; then, if a policy does exist, the jury determines whether the defendant's actions: (1) violated that public policy; (2) were either immoral, unethical, oppressive, unscrupulous or substantially injurious; and (3) caused the plaintiff's damages under the Act. See id. at ¶ 32.

The penumbral-right inquiry places the district court in what might be best summarized as a somewhat permissive -- but not toothless -- gatekeeping role designed to cull facially defective claims that might have passed muster when "unfair" remained undefined. The decision does not appear to modify the remedial provisions of the MCPA or the Court's prior holding that its damages are compensatory, rather than punitive; therefore, it stands to reason that the new "unfair" standard does not inject an intent-to-harm or recklessness component into the Act. See Plath v. Schonrock, 2003 MT 21, ¶ 27, 314 Mont. 101, ¶ 27, 64 P.3d 984, ¶ 27. In other words, while this fact-driven exercise requires that MCPA plaintiffs jump through an additional hoop or two, the Act will continue to permit negligence-based claims on the appropriate showing.

Any finding by the district courts that a "public policy" exists against the alleged harm done could lend a mantle of authority or righteousness to particular MCPA claims; at the same time, however, the issue can likely be cured with the appropriate insturction. Furthermore, the Court's ruling provides a single framework within which the standard is contained and can be further clarified as the Wild World of Torts requires.

And you thought the law was boring.

New Federal Rule 502

2008-09-24T00:01:00.000-07:00

New Federal Rule 502 addresses privilege, waiver, inadvertent disclosure of protected or privileged materials, and other captivating legal principles that will leave you glued to the books. It's not the clearest; some case law will be nice. The Federal Evidence Review has posted an outstanding analysis of the new rule. http://federalevidence.com/node/176

MSC Reaffirms Distinction Between Independent Emotional Distress Claims, Tag-Along Emotional Distress Damages

2008-09-21T23:51:00.000-07:00

We're not in the business of measuring trends. Still, we couldn't help but notice the sheer volume of negligent and intentional infliction of emotional distress claims filed in all varieties of cases over the past several years, which got us thinking: Is there confusion over the interplay between stand-alone emotional distress claims, and "parasitic" or "tag-along" emotional distress damages associated with traditional tort claims? Well, consider yourself enlightened. You needn't bring an independent claim in every case, and after the Court's recent decision in Lorang v. Fortis Ins. Co., 2008 MT 252, 345 Mont. 12, ___ P.3d ___ (2008 WL 2764588), we can't help but wonder why anyone would be so inclined.

In Lorang, Fortis argued that Plaintiffs' UTPA claims should have been dismissed for failure to demonstrate "severe" emotional distress under Sacco v. High Country Independent Press, Inc. (1995), 271 Mont. 209, 896 P.2d 411. Lorang, ¶ 184. The argument was promptly dispatched by a unanimous panel. The heightened "serious or severe emotional distress" standard articulated in Sacco was specifically tailored against fraudulent independent claims; it does not, however, cabin compensatory damages -- including emotional distress damages -- flowing from ordinary tort claims:

Fortis' argument fails to recognize the distinction between emotional distress as an element of damages resulting from a UTPA violation, and emotional distress which serves as the basis for an independent cause of action in tort. Sacco did not create a standard for establishing emotional distress as an element of damages resulting from a UTPA violation or torts generally. Rather, by its express terms, Sacco creates a standard of proof solely for independent, stand-alone claims of negligent or intentional infliction of emotional distress.

Id. at ¶ 190. (emphasis added). The Court did not substantively discuss tag-along damages or compare the standards; rather, at footnote 29, it referenced the Montana Pattern Instructions, "which provide one set of instructions for Sacco claims, based on the 'serious or severe' standard, and a separate instruction for cases where emotional distress is alleged as an element of damages in claims other than negligent or intentional infliction of emotional distress." Id. & n.29 (citing MPI 2d 25.02, 15.01-03). The Court concluded that the measure of actual damages was for the jury; presumably, however, tag-along claims are not immune from challenge under Rule 56. The issue remains one for future cases.

Fortis confirms that negligent and intentional infliction of emotional distress claims should be sparingly plead and even less frequently tried. Simultaneously pursuing Sacco "serious or severe" claims and tag-along emotional distress damages invites juror confusion over disparate standards for the "same" issue, risks application of the far stricter standard to all emotional distress claims, and potentially trivializes legitimate emotional distress damages that might not qualify under Sacco. For the majority of cases, the higher evidentiary standard makes little, if any, sense.

Why We're Doing This

2008-09-19T15:44:00.000-07:00

There is no non-denominational online resource where Montana trial lawyers -- plaintiff and defense -- can gather and get their geek on. We'll be posting thoughts or questions on whatever comes to mind or we happen to stumble across -- research and writing, daily practice stuff, noteworthy decisions in the world of Montana civil litigation, thoughts on working or managing cases, whatever grabs us. We have no idea what form or path this might take; and, starting out, the only rule is that nothing personal or untoward be posted about our Montana colleagues, judges included.

And so, we'll see how it goes.