Southwest Non-Profit Housing v. Nowak (CA1 3/31/14)

We blogged Sage v. Blagg Appraisal so we’ll blog this, which Sage probably inspired in part (though the opinion indicates that the plaintiff also relied on dicta from a Washington case).

There were two cases below but the Court of Appeals consolidates them because they involve three instances of the same fact pattern:: Southwest contracted to sell a house to a buyer for a specific amount; the buyer’s lender then got an appraisal that came in below that amount; so the lender balked and the deal fell through. Southwest’s solution was, among other things, to sue the appraiser for negligence. The appraisers argued in varying ways that they had no duty to Southwest. The trial court agreed, as does the Court of Appeals.

Under the Restatement an appraiser has a duty, basically, to his client and people he should know will get the appraisal and be influenced by it. Since Southwest had already agreed to a price there was no basis to find that the appraiser influenced it or intended to do so.

Two of the appraisers also argued successfully that under the language of their contract with the lenders Southwest was not a party who was intended to get their appraisal anyway, so they could not have intended to influence it.

The Restatement section, by the way, is 552 of Torts (Second). One wonders what the outcome would have been if these judges had been willing to read it as expansively as their brethren read the same section in Sage.

Sage was five years ago. Its frankly a shock to see that we’ve been doing this blog that long; we had expected to turn it into a reality TV series long before this.

(link to opinion)

Ponce v. Parker Fire District (CA1 3/27/14)

Yet another notice-of-claim case, this one involving waiver-by-litigation.

Ponce’s house burned down a few days after the house next door did. He blamed un-extinguished embers that escaped through openings made by the firefighters. He filed a notice of claim but did so 16 days late – 196 days rather than 180. Then he filed suit. The fire district litigated it for a year before moving for summary judgment on the notice issue. The trial court granted it.

The Court of Appeals reverses. Although the District had not initiated any discovery it had participated in a lot of it, much of it having nothing to do with the notice issue. It also did such things as to move for change of venue. And although it claimed that it needed Ponce’s deposition to support its notice defense, it argued the motion in such a way that what he said didn’t matter. It also contended that it needed the deposition of Ponce’s expert in aid of another argument it made in its motion for summary judgment. But the notice issue didn’t have to wait for that; there was no reason that it could not have been resolved promptly.

So the District said that summary judgment was proper on that other argument, a fact-dependent claim that Ponce’s expert wasn’t qualified. The Court of Appeals disagrees. Judgment reversed.

(link to opinion)

Newman v. Cornerstone National Insurance (CA1 3/27/14)

This presents the issue raised in Melendez but this panel comes to the opposite conclusion.

Newman had refused an offer of UIM coverage but argued that the offer was invalid because it didn’t quote a premium. The trial court disagreed and gave Cornerstone summary judgment. Then, in Melendez, this court agreed with the argument. Newman got a different panel, though. Apparently it took a hint from the fact that the Supreme Court had later re-designated Melendez a memorandum (or took some other hint; how information works its way along the judicial grapevine is not for outsiders to know – in fact, you’re not even supposed to know that there is one).  The court concludes that the statute doesn’t require a premium quote with the offer.

Except to say that Newman relied on it the court does not mention Melendez. Whether that is intended as a comment is an exercise for the reader. Melendez is a memo now, so there’s an excuse.

(link to opinion)