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)

Estate of Ethridge v. Recovery Management Systems (CA1 2/13/14)

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PLEASE NOTE that our link to the opinion now leads to the opinion  dated 5/13/2014, issued after a Motion for Reconsideration.

The case holds that Medicare part C (“Medicare Advantage”) plans have a lien against a personal-injury recovery. This will not surprise specialists in the mine field that this area of the law has become, though we’re happy to say we’re not among them. We mention the case because personal-injury practitioners will want to be aware of it.

Etheridge died in a nursing home; her estate sued the home; the case settled. The Advantage plan then sought reimbursement from the proceeds. The estate sued it for declaratory judgment. The trial court ruled for the plan; the Court of Appeals affirms.

Part C specifically pre-empts state law inconsistent with its “standards.” The court concludes that HHS regulations are Part C “standards” and that one of those regulations gives Advantage plan the same rights as traditional Medicare.

(link to opinion)