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

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                                             THIS OPINION HAS BEEN VACATED

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)

In Re Estate of Snure (CA2 2/28/14)

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Whether this case is right or wrong, it’s a good little practice pointer/reminder.

A creditor contacted an estate to make a claim. She gave it her address, phone number, and email address. It replied to her by email.  Later, the estate denied the claim. It notified her only by certified mail, return receipt requested. The letter was returned unclaimed. (If you don’t see where this is going then you do need to read the rest of it.)

When she learned of the disallowance she filed a petition. She argued that because she wasn’t given notice of disallowance, her claim – per the normal statutory procedure – was allowed. The estate pointed out that the statute (14-3806) says to give notice of disallowance by “mail.” The trial court dismissed the petition.

Of course the Court of Appeals was going to find a reason to reverse. Whenever courts have to wonder whether you were really trying to give notice, or not really trying to give notice, or really trying not to give notice, you’re likely to lose. The court finds a U.S. Supreme Court case (Jones 2006) to the effect that notice by certified mail isn’t due process if its returned unclaimed. Since the estate had reason to know that the creditor hadn’t received notice, it should have done something else.

The estate did not contend that the creditor deliberately did not pick up the certified letter, perhaps because it couldn’t prove it. That’s the problem with certified/return-receipt mail: you never can. The letter is a two-edged sword; its purpose is to prove that a letter was received but it can also prove that it wasn’t. We all know that some people never pick up certified mail, so as to avoid the bad news it often brings; but the same people who boast of that when it makes them seem clever will deny it when it doesn’t.

The court rules, however, that the failure to give actual notice does not result in allowance of the claim. It holds instead that the time for responding to the disallowance runs from the date the creditor had actual knowledge of it. Dismissal of the petition is therefore reversed and the parties will litigate whether the claim should be allowed.

(link to opinion)

Lopez v. Food City (CA2 2/25/14)

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This is a garden-variety appellate screwup. That there are such things normally reflects badly on the profession – so badly that the court has changed the rules. The new ones went into effect on January 1;  this is the first opinion we’ve seen that mentions them. But they didn’t help this plaintiff – who, fortunately for the profession, was pro per.

Lopez appealed a minute entry. He then filed a second notice of appeal after the judgment was entered – but it was a week late. The Barassi rule didn’t save him because the entry of judgment wasn’t merely ministerial – the trial judge still had a ruling to make, on fees, after the minute entry.

The court (which was addressing jurisdiction sua sponte) then looked at new rule 9(b)(2)(B), which basically says that a boneheadedly-filed notice of appeal will be deemed to have been filed when it should have been. (This will of course end all confusion and error, and we will certainly not see a new line of cases explaining what the new rules mean.) But the new rules apply to cases “pending” on January 1. The court says, citing Black’s, that  “a case that has become final is no longer ‘pending’ . . .” And this case became final when the time to appeal the judgment ran out, in June 2013. Appeal dismissed.

The rules weren’t changed for the benefit of pro pers, though. Experience (and a case like this, of which we’ve blogged several) teaches that quite a number of practicing lawyers don’t know the difference between a minute entry and a judgment – and can’t reliably count or calendar thirty days – any better than poor Mr. Lopez. Dumbing procedure down has for decades been the court’s response to the slender competence of so many of the lawyers it foists on the public. It hasn’t worked.

(link to opinion)