Tag: appeals attorney

Oregon Court of Appeals reverses trial court in my client’s favor – Attorney Fees

Posted on June 30, 2017 by - Appellate

This is a case I took up on appeal for another lawyer and won. I represented the plaintiff, the Marandas Family Trust. Plaintiff owns a cabin on Mount Hood. After plaintiff hired defendants to repair the roof of the cabin, plaintiff discovered that the defendants’ repairs were faulty, and the roof had leaked rainwater causing damage inside the cabin. Plaintiff sued. In court-annexed arbitration, plaintiff won almost all the money it sought for the damage to the cabin, plus costs and disbursements, but the arbitrator denied plaintiff’s attorney fees under ORS 20.080(1).  Plaintiff filed exceptions (objections) to the arbitrator’s decision in the circuit court, which the circuit court denied. I was hired to take the appeal. This was a fight over the right to recover statutory attorney fees, and the interpretation of the applicable state statute, ORS 20.080(1). Specifically, the issue was the interpretation of a new clause, added to the statute in 2009.

The Court of Appeals’ opinion

This appeal took four years to reach decision before the Court of Appeals published its detailed opinion, ruling in my client’s favor, and reversing the arbitrator and the Circuit Court below. See Marandas Family Trust v. Pauley, 286 Or App 381 (2017). This is a important win for my client, but it is also an important opinion for the general public and the courts statewide because it interprets and explains one of the 2009 revisions to ORS 20.080(1).

Remand to the Multnomah County Circuit Court

This appeal will now be remanded (returned) to the trial court for further proceedings, to award attorney fees to plaintiff, the Marandas Family Trust.

Oregon Court of Appeals reverses trial court in my clients’ favor – Wills and Estates

Posted on February 24, 2017 by - Appellate

Appeal and cross-appeal

This is a case I took up on appeal for another lawyer, and won a reversal – the Court of Appeals affirmed the trial court’s rulings in our favor and reversed the trial court’s rulings against us, a complete victory for our clients.

I represented the Knudsens, who had been sued by the Grimstads over an inheritance. Three key legal claims were at issue. The trial court awarded the Grimstads part of the Knudsens’ inheritance under claims of (a) unjust enrichment and (b) money had and received, but denied the Grimstads’ claim of (c) intentional interference with prospective economic advantage.

Both parties appealed, resulting in an appeal and cross-appeal. On June 9, 2015, after extensive legal briefing, the appeal and cross-appeal was argued to the Oregon Court of Appeals.

The Court of Appeals’ opinion

One and one-half years after oral argument, the Court of Appeals issued a complex 29-page opinion, ruling in my clients favor and against the Grimstads on all claims. See Grimstad v. Knudsen, 283 Or App 28 (December 21, 2016). At the end of its opinion, the Court of Appeals favorably concluded as follows:

“In sum, we conclude that the trial court erred in concluding that the [Grimstads] proved a claim for unjust enrichment, because [the Grimstads] failed to show that they had any legal or equitable interest in the proceeds of the sale of the [real estate]. For that same reason, the trial court erred in concluding that [the Grimstads] proved their claim of money had and received. The trial court therefore erred in granting plaintiffs relief on those claims. On cross-appeal, [the Grimstads] failed to put forward evidence to create any genuine issue of material fact with respect to the improper means or purpose element of their intentional interference with prospective economic advantage claim. The trial court therefore did not err in granting [the Knudsens’] motion for summary judgment [on that claim].”

See Grimstad v. Knudsen, 283 Or App 28, 58 (December 21, 2016) (reversing and remanding on appeal; affirming on cross-appeal).

Remand to the Washington County Circuit Court

This appeal and cross-appeal will now be remanded (returned) to the trial court for entry of a new judgment fully in my clients’ favor. As an aside, I predict this case and its opinion will become the new “name case” or “lead opinion” for claims of intentional interference with prospective economic advantage. Time will tell.

 

Another reason to retain an appeals attorney early in the process

Posted on April 3, 2016 by - Appellate

Orders versus judgments? When and what to appeal?

As an appeals lawyer, I am occasionally contacted by a trial lawyer on or near the last day to file a notice of appeal, anxious because he or she is uncertain whether a particular order is appealable. In these cases, the order is in hand, the time to file the notice of appeal is about up, and a judgment has not been entered yet. The trial lawyer’s question is usually something like this: Do I file a notice of appeal from the order, or do I wait for a judgment to be entered? What to do?  Time is short, any research would be rushed, and this is no time for uncertainty. If you wait for a judgment to be entered, the time to appeal the order will have passed, and if it turns out the order was the thing to appeal, you will have lost your chance to do so.

When and what to appeal? – the source of the problem

Notices of appeal are often due within 30 days after entry of a judgment or appealable order. Appellate lawyers know, however, that depending upon the circumstances of each case, there are shorter and longer periods of time to file a notice of appeal, so each appeal deadline must be independently evaluated and verified. Further complicating matters is the fact that sometimes there will be no judgment and, in these cases, the appeal will instead be taken from an order. This may occur, for example, when an order affects a substantial right and effectively determines an action so as to prevent entry of a judgment. This is just one example. There are many more, too numerous to list here. There are also important differences between state and federal appellate practice, and appeals from agency actions (administrative law). The important thing to know, however, is that much time, money, and grief can often be saved by taking early action to set the stage for your appeal, just another reason to retain an appellate attorney as soon as you suspect you might need an appeal.

As an appeals lawyer, here is one way I avoid the problem

Time permitting, in close-call cases, when it is uncertain whether the appeal will be from an order or a judgment, I will recommend that the trial lawyer pursue entry of a judgment within the appeal period of the order. Then, with both an order and judgment in hand, I can file a notice of appeal from both documents. This approach ensures that both the order and judgment are appealed, eliminating the need to file a “precautionary notice of appeal” from the order because time is about to run on an appeal from the order. This approach only works, however, when there is time to pursue a judgment within the appeal period for the order. This approach will not work when time is up to appeal from the order, yet another reason to retain an appeals lawyer as soon as you suspect you might need an appeal.

When to bring in an appeals attorney

Posted on December 26, 2015 by - Appellate

A recent win on appeal

I recently won a quick and good result on appeal. This case in particular illustrates the importance of making your record for appeal, a fact appellate lawyers know to their core. This recent victory also illustrates the importance of bringing in an appellate lawyer sooner, rather than later, to prepare for the appeal. An appellate lawyer can ensure that an legal error (or legal issue) is properly preserved for appeal. An appellate lawyer will also be familiar with the various standards of review applicable on appeal.

What was unusual about this recent case, is that the trial lawyer accurately predicted she could win three important but difficult rulings, and she associated me early on to help her make the best possible record in anticipation of the other side’s threatened appeal. Working together, we ensured that the proper law was applied for each legal issue, and we further furnished the trial court with concise and forceful, legal and factual arguments, on each legal issue, enabling the trial court to rule in our favor on all three difficult issues.

As expected, the other side appealed. Our response on appeal was (a) that the trial court applied the correct law when deciding each of the three legal issues raised on appeal, (b) the trial court record was inadequate to reach the other side’s first two legal issues, and (3) the trial court did not abuse its discretion on the third legal issue. In sum, we successfully defended all three key rulings in our client’s favor because we prepared for the appeal while we were still in the trial court. The appeal was won in great part because of what we did in the trial court. This is but one example of what an appellate lawyer can contribute while a case is still before the trial court.

Another case soon going up on appeal

I was recently retained in another new case, where the other side is attempting to set aside the parties’ judgment. The trial lawyer in this new case recommended to his client that I be added to the legal team, for at least three reasons. First, he wants to win, and he volunteered that appellate lawyers are more familiar with the legal standards applicable to set-aside motions. Second, he wants to make the best record possible, in anticipation of an appeal, because the other side is already threatening to appeal if they lose their motion to set aside the judgment. And third, if there is an appeal, he wants to defend it as the respondent on appeal, not file it as the appellant on appeal. As I write this, I know very little about this new case, but I well know my role as appellate attorney – here we go again – let’s win, and if not, let’s ensure we make the best record possible for appeal.

Associating an appeals attorney before there is an appeal

My point, of course, is that appellate lawyers can do more for you if we are involved sooner than you might think. Here are a few thoughts for your consideration:

Before and during trial

Occasionally, appellate attorneys will be working in the background during trial preparation and trial, as illustrated by the two cases discussed above. Appellate attorneys are also involved in larger cases, those with ample budgets, and the need for several attorneys just to get the case to trial. If there are several attorneys preparing your case for trial, it makes sense that one of them should have appellate experience, to round-out the team.

After trial, but before judgment

More often, appellate lawyers are brought in soon after a loss in the trial court, to help prepare the judgment, in anticipation of an appeal. I often characterize the preparation of the judgment as the interface between the trial and the appeal. By this point, the outcome of the trial is known, and remaining task is to reduce various trial court rulings and findings to a written judgment. There is much work to be done, and many considerations in anticipation of the appeal. The terms of the proposed judgment are extremely important, and any disagreements will be resolved by the trial court, creating one more opportunity to improve the record for appeal. If execution on the judgment (i.e., collection efforts) is a further concern, the timing of the entry of the judgment, and preparation and filing of the bonding to stay (prevent) execution on the judgment, is also important, if not urgent. An award of attorney fees may also be an issue and, if so, this presents another consideration for appeal. After trial, but before judgment, there is plenty to do, and this type of work is often done by, or with the assistance of, appellate lawyers.

After judgment

Most often perhaps, appellate lawyers are brought in after entry of judgment, to prepare the notice of appeal, before time runs out to do so. At this point, an appellate lawyer can handle the bonding necessary to stay execution of the judgment, and also take the case up on appeal, but the opportunity to improve the record and the judgment for appeal, will have passed.

How to evaluate when to involve an appeals attorney

Most cases will not go up on appeal, and experienced trial lawyers will quickly recognize these cases. Other cases, predictable in nature, and handled by experienced trial lawyers, may not justify or require an appellate lawyer. However, in those cases where an appeal is threatened, likely, or certain, the question is not whether to bring in an appellate lawyer, but when. Each case is different. Consult an appellate lawyer whenever an appeal is foreseeable, or likely. Most appellate lawyers will have this initial discussion with you at no cost, so make the call, to determine what will work best in your case.