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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)

Abeyta v. Soos (CA2 2/19/14)

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This special action involves claims of privilege by a non-but-closely-associated-party.

A social worker counseled Bruno and his domestic partner, Abeyta, jointly – i.e., she saw them together and kept a single chart. The partner ended up suing her and the psychiatric hospital she sent him to. He named Abeyta as a witness. The social worker disclosed her records and noticed Abeyta’s deposition. Abeyta claimed the privilege and moved for protective order. The trial court denied it; the Court of Appeals accepted his special action and grants relief.

Abeyta had never expressly waived the privilege; that the partner had is irrelevant. The court reviews HIPAA and State behavioral health regulations, concluding that they do not authorize or permit the release of Abeyta’s records. The defense relied on a case (Hahmann 1981) in which a couple’s communications with a psychologist were not privileged against each other in their divorce/custody battle. But Abeyta and his partner weren’t suing each other.

(Some of those regulations involve “family” counseling. Normally this sort of thing would trigger at least a footnote but the court doesn’t mention it. One wonders which the court was more afraid of – complaints that it would even quibble about whether same-sex couples are families or complaints about an official pronouncement that they are.)

The defense also relied on high dudgeon, as litigants tend to do when an opponent’s witness will claim a privilege at cross-examination time. But the court says that questions about matters at issue could be asked “outside the context” of the counseling and points out that Abeyta might still do something to waive the privilege.

Unfortunately for the opinion, which is otherwise fairly unremarkable, the court messed up the Hahmann case. It indicates – three times, so its not just a typo – that Hahmann involved attorney-client privilege. While that opinion analogized to attorney-client privilege, it was a psychologist–patient case. The court may be right that it wasn’t a spotted-horse case –  but not to know what sort of animal it was about is an embarrassment.

(link to opinion)