We have here an interlocutory ruling irrelevant, or at least incidental, to the final judgment, but now the subject of an appeal that only the appellant filed a brief in. A perfect opportunity, you’re thinking, for a memorandum opinion: failure to file an answering brief admits error and the court isn’t going to create precedent based on this kind of record. But CA1 specifically refuses to do that (in, you guessed it, a footnote). If that surprises you then you forgot the Cardoso case.

Stewart’s Will disinherited one of his sons, who filed suit to contest it. The Will and associated Trust contained in terrorem clauses. Since  the son wasn’t a beneficiary anyway they didn’t apply to him but they did apply to siblings that he wanted discovery from (the clauses included  those who “cooperate or aid” a contest). So he successfully asked the trial court to rule them void.

Son then settled his claim. At the behest of other siblings, the trial court reiterated in the resulting judgment its ruling on the in terrorem clauses  (a foolish mistake which, by ensuring an appeal, caused this whole problem). The estate appealed that part of the judgment. The son didn’t file a brief.

The opinion first rules, after quick and conclusory analyses, that the son had standing to raise the issue and that it was ripe for adjudication. It apparently sees these as being basically the same issue.

Then it moves to the merits. Those of you who do this law will remember 14-2517: in terrorem clauses are invalid if there is probable cause for the contest. The court holds, in a vague and prolix way, that this applies regardless of competing or conflicting language in the Will (which here said that the in terrorem clauses applied “regardless of whether any such contest is made in good faith or is ultimately successful”). The trial court had ruled that this conflicting language itself voided the clauses, so the court reverses.

But once again (as here) the court makes another, dispositive ruling in a footnote: the statute only applies to Wills, so the trial court was wrong to rule on the Trust clause under 14-2517.

The “cooperate or aid” clause, the court holds, does not violate public policy because the court will interpret it to mean voluntary cooperation or aid – so siblings in the future needn’t worry about violating an in terrorem clause by giving a deposition.

(link to opinion)

Another Rule-12-converting-to-Rule-56 case. This stuff isn’t rocket science, though you’d never know that by the number of times courts get it wrong.

Young thought she had a contract to be the Roses’ exclusive real estate agent. So when they bought a house through another agent she sued. The trial court granted the Rose’s Motion to Dismiss because Young hadn’t signed the contract.

A statute requires that she do so. Most of the opinion explains why the statute means that if she doesn’t, she can’t sue. That will interest the real-estate crowd but few of the rest of us.

Young’s other argument was that the Roses emailed her the contract after they signed it and that her reply email constituted an electronic signature. She attached this email (and others) to her Response to the Motion. The trial court considered it and concluded that it was not an electronic signature. But if the court considers materials outside the pleadings then a 12(b)(6) motion “shall” turn into a Rule 56 motion. (Though the court doesn’t necessarily have to consider them, as noted here.) The trial court didn’t do that, with the result – says the court, though the circumstances aren’t clear – that the parties couldn’t file affidavits regarding facts relevant to the electronic-signature issue. So it remands on that issue.

The court also says that the trial court shouldn’t have denied Young’s request to amend her Complaint to cure its alleged defect (by including an allegation, important to electronic signatures, that the parties intended to conduct the transaction electronically). But for some reason this is in a footnote. Hey, Court of Appeals: doesn’t a conclusion powerful enough all by itself to justify – or even control – the result deserve at least one real paragraph of its own?

The court says that “We leave for another day the task of determining when an  e-mail communication qualifies as an  electronic signature.” It then spends a page discussing the subject anyway.

(link to opinion)

The law is full of lessons that we all should have learned decades ago but that keep having to be taught because not everyone does. Today’s lesson: even contingent-fee lawyers should keep their time. But make sure to keep enough of it.

The Gellers sued for breach of contract and won summary judgment. They requested fees under 12-341.01 and the contract. Their attorney was on a 25% contingency, which would be about $175,000. They asked for that or, in the alternative, $300 per hour; their attorney hadn’t kept time records but thought he spent over 100 hours on the case.  The court awarded the contingent fee. Lesk appealed.

A contingent fee is enforced only to the extent that it is reasonable. The Gellers argued that the contract – which controls over the statute – provided for payment of all fees. The court says that that limits the court’s discretion but that the award is still for “reasonable” fees. The prevailing party need make only a prima facie showing of reasonableness but if the losing party can show that the requested fee is unreasonable then the court can reduce it.

The court concludes that the Gellers did not make a prima facie showing. “The prevailing way to show reasonableness” is with contemporaneous time records.  Apparently an after-the-fact affidavit might suffice but that from the Geller’s lawyer hurt: if $300/hr. is reasonable then $1700/hr. (the contingent fee divided by the 100 hours) isn’t.

The Gellers argued that they wouldn’t be whole if the court awarded less than the contingent fee they owe their lawyer. The court replies that they don’t owe it: “That argument ignores that even when an attorney and client have agreed to a contingency fee, the attorney has a duty to review the fee at the conclusion of the representation to ensure that it would still be reasonable.” We’re absolutely sure that their lawyer would have done that even without this prompting. Yes. Absolutely.

The Gellers did themselves no good by praying in their Complaint (as the court can’t resist pointing out in a footnote) for “reasonable attorneys fees” – almost undoubtedly boilerplate language that nobody thought about at the time. When you put boilerplate in your pleadings without thinking about it – or, as many lawyers do, without really knowing what it means or why its there – you shouldn’t complain about the result.

Six footnotes here (none of them necessary but at least most aren’t very long) and fifteen pages, which a good blue pencil would have reduced by half with marked increase in clarity.

(link to opinion)