Tag: court of appeals

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.

 

Relevant conduct under the federal sentencing guidelines is criminal conduct

Posted on September 12, 2015 by - Appellate, DEA Prosecutions

U.S. v. Chube II, 538 F3d 693 (7th Cir. 2008)

I was the appellate lawyer lawyer for Drs. David and Randall Chube on appeal to the Seventh Circuit Court of Appeals in the case of US v. Chube II, 538 F3d 693 (7th Cir. 2008). At the time of sentencing in that case, both the DEA attorney (the federal prosecutor) and the “PSR writer” (the author of the Pre-sentence Investigation Report) seemingly counted every prescription for controlled substances, whether it was criminal or not, as relevant conduct when applying the federal sentencing guidelines, and the District Court (trial court) sentenced accordingly, which greatly increased the length of sentence for each physician – five years for Dr. Randall Chube, and fifteen years for Dr. David Chube.

On appeal, the Seventh Circuit Court of Appeals found that the District Court relied upon insufficient evidence to prove the relevant conduct was criminal conduct. Both physicians sentences were vacated and the case was remanded back down to the District Court for re-sentencing. A short while later, the trial court released both physicians from prison pending re-sentencing, and both physicians served substantially shorter sentences when relevant conduct was determined correctly. That was seven years ago.

Not much has changed

I was recently retained to assist defense counsel with the sentencing of a physician in a state located within the Fifth Circuit Court of Appeals, and it seems not much has changed. Like in the Chube case, both the DEA attorney and the PSR writer make the mistake of seemingly counting every prescription for a controlled substance as relevant conduct, without first establishing that the relevant conduct was criminal conduct, when applying the sentencing guidelines. If the District Court adopts these computations by the PSR writer and the DEA attorney at the time of sentencing, the District Court will commit reversible legal error just as the District Court did in US v. Chube II, 538 F3d 693 (7th Cir. 2008).

Prescribing without a legitimate medical purpose

The civil standard of care and the criminal conviction standard are two distinct legal standards, yet these two legal standards are often substituted, confused, and/or conflated, by the DEA’s drug diversion investigators, the DEA’s attorneys, the federal prosecutors, the prosecution’s medical experts, and the PSR writer, during the investigation, the trial and at sentencing. Most often, the civil and criminal standards are conflated through the misapplication of the rule against prescribing without a legitimate medical purpose, discussed on the criminal violations page and elsewhere on this website. Unfortunately for physicians, when the criminal conviction standard is conflated with the civil standard of care, the criminal conviction standard is lowered, making numerous criminal convictions easier to win, and the relevant conduct necessary to further lengthen a sentence, easier to find. The burden is upon defense counsel and the courts to keep these two distinct legal standards separate.

Never forget that relevant conduct is criminal conduct

A violation of the civil standard of care (which may amount to professional negligence or medical malpractice) is not, without more, a drug crime. In other words, a physician may commit malpractice when prescribing controlled substances, but that does not mean the physician committed a crime. Never forget that relevant conduct is criminal conduct. Because a violation of the civil standard of care when writing a prescription for a controlled substance is not, without more, criminal conduct, it is not properly considered relevant conduct for purposes of sentencing. More is required. See U.S. v. Chube II, 538 F3d 693 (7th Cir. 2008). By using an incorrect legal standard to determine which prescriptions are criminal, and therefore relevant conduct when applying the federal sentencing guidelines, a District Court will commit reversible legal error at the time of sentencing. It is incumbent upon defense counsel to preserve this legal error for appeal.