Can an Orthodontist Tell the Oregon Board of Dentistry to Go Fly a Kite? Not Under ORS 679.170(6)

Angle v Board of Dentistry, No. A162472, decided by the Oregon Court of Appeals on October 17, 2018, is a statutory interpretation case about nonresponsive responses.

ORS 679.170(6) provides that no person shall “fail to respond” to a written request from the Board of Dentistry for information.  Does a “nonresponsive” reply count as a failure to respond?  In this case, the Oregon Court of Appeals decides that just saying something is not sufficient to comply with ORS 679.170(6).  Instead, responses must be responsive.  According to the court, telling the board to go fly a kite or writing a letter about the history of Rome will not pass muster.  However, a “curt and not overly helpful” response may work.

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Oregon Court of Appeals Questions Trial Court’s Authority to Dismiss Case as Sanction for Prelitigation Spoliation

Markstrom v Guard Publishing Co., No. A163317, decided by the Oregon Court of Appeals on October 10, 2018, is about the prelitigation destruction of evidence.  The plaintiff, as an employee of the defendant, had been reprimanded and placed on a performance improvement plan, and she had submitted a notice of grievance through her union.  Then, while out on a pregnancy-related medical leave, she deleted emails on her work account, against her supervisor’s instructions.  She also destroyed text messages between her and her union representative.  Ultimately, the plaintiff was fired, and she sued her former employer.  The trial court, relying on ORCP 46 D and its inherent authority, dismissed her case as a sanction for her intentional prelitigation destruction of evidence.  But the Oregon Court of Appeals reversed that dismissal.  In addition to questioning whether the trial court even had any discretion to dismiss for prelitigation spoliation, the Court of Appeals held that the trial court here had failed to sufficiently consider the effect of the plaintiff’s conduct in the context of the case as a whole.     Continue Reading

Pending Motion to Dismiss Does Not Prevent Filing Answer & Counterclaims

In Wells Fargo v Clark, No. A162461, the Oregon Court of Appeals held that defendants may file an answer and counterclaim even while their ORCP 21 A motion to dismiss is still pending.  In this case, on the morning of the hearing on the defendants’ motion to dismiss, the defendants filed an answer to the plaintiff’s complaint and counterclaims.  The same morning, the plaintiff filed a notice of voluntary dismissal.  The trial court ruled that the answer and counterclaims were “a legal nullity,” on the theory that parties are not allowed to file a motion to dismiss and an answer at the same time.  The Oregon Court of Appeals disagreed, holding that nothing in the Oregon Rules of Civil Procedure prevents a defendant from filing a responsive pleading or counterclaim while its motion to dismiss is still pending.

This opinion has potential implications in any case in which the plaintiff may seek to voluntarily dismiss its claims without the defendant’s consent while a motion to dismiss is pending. ORCP 54 A(1) provides that a plaintiff can voluntarily dismiss its claims without order of the court merely by filing and serving a notice of dismissal “if no counterclaim has been pleaded.”

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Mootness of a Public Meetings Law Challenge

Wood v Wasco County, No. A161351, addresses how to apply mootness principles to an alleged public records violation.  In 2014, allegedly without giving proper notice under Oregon’s Public Meetings Law, the Wasco County Board of Commissioners voted to give notice of the county’s intent to withdraw from an intergovernmental agreement.  After the Plaintiff sued to have the notice declared void and also for equitable relief to ensure future compliance with the Public Meetings Law, the Board of Commissioners voted to rescind the notice.  According to the Oregon Court of Appeals, that vote mooted the Plaintiff’s suit.

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Reminder: Amendments to the Idaho Appellate Rules and Idaho Rules of Civil Procedure go into effect July 1, 2017

In May, we wrote about amendments to the Idaho Appellate Rules that go into effect July 1, 2017. You can link to the blog post here. The changes impact I.A.R. 11.1, 12.1, 12.2, 25, 27(f), 28(g), 32(b), 33, 34(a), 34.1, and 40. Key amendments address the submission of electronic briefs (they are now mandatory), the reporter’s standard transcript in criminal appeals (the contents have changed), and magistrate appeals involving child custody (the rules have largely been streamlined).

You should also be aware of recent amendments to the Idaho Rules of Civil Procedure that go into effect on July 1. Pursuant to I.R.C.P. 3(d)(1), both the initiating and responding party must file a case information sheet in all new civil cases (other than small claims actions). Under the prior rule, a case information sheet was only required of the initiating party in certain cases such as guardianships and adoptions. In addition, the Idaho Supreme Court has a created new forms for summons and garnishments. More information on the changes can be found here.

Cases of First Impression Part Three: Statute of Limitations for Foreclosure

In Baughman v. Wells Fargo Bank, 2017 Opinion 50 (May 26, 2017) (slip op.), the Supreme Court addressed a matter of first impression related to the statute of limitations in Idaho Code § 5-214A. In this case, the plaintiffs filed suit to prevent foreclosure by arguing that the foreclosure proceeding was barred by the statute of limitations. Idaho Code § 5-214A provides: “An action for the foreclosure of a mortgage on real property must be commenced within five (5) years from the maturity date of the obligation or indebtedness secured by such mortgage.” (emphasis added).  The district court concluded that despite the listed maturity date of March 2047 in the deed of trust, the bank’s recording of a notice of default in January 2009, which expressly declared that all sums secured by the deed of trust were immediately due and payable, triggered the five-year statute of limitations. The Supreme Court disagreed, concluding that a notice of default rendering amounts immediately due did not modify the expressly stated maturity date of March 2047. Slip op. at 6. Therefore, the five-year statute of limitations for foreclosure would not begin to run until the listed maturity date on the deed of trust: March 2047.

Cases of First Impression Part Two: Limits of Sovereign Immunity

This Spring, the Idaho Supreme Court issued several opinions addressing issues of first impression. Below are the highlights from a second opinion addressing such an issue, Tucker v. State.

In Tucker v. State, 2017 Opinion 38 (Apr. 28, 2017) (slip op.), as a matter of first impression, the Supreme Court concluded that sovereign immunity does not insulate the State of Idaho from suit when constitutional violations are alleged.  Here, Plaintiffs had filed a class action challenging Idaho’s public defense system and arguing it violated the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 13 of the Idaho Constitution. Plaintiffs named the State of Idaho as a defendant. The district court concluded that the State was immune from the federal law claims but not the Idaho constitutional claims.  In affirming this determination, the Supreme Court made two observations. First, many other jurisdictions have held that in order to prevent State constitutional rights from being rendered meaningless, sovereign immunity “does not apply when constitutional violations are alleged.” Slip op. at 4. Second, because sovereign immunity is a common law doctrine, the Supreme Court has the power to modify it. Id. at 3. Within that framework, the Supreme Court rejected the State’s position that sovereign immunity protected it from the Idaho constitutional claims. Id. Any other result “would leave parties unable to vindicate constitutional rights against the State.” Id. at 4.

Idaho Supreme Court Addresses Issues of First Impression

This Spring, the Idaho Supreme Court issued several opinions addressing issues of first impression. Below are the highlights from one of these opinions, Westover v. Cundick. We’ll discuss the other cases that have addressed new issues in the coming weeks.

In Westover v. Cundick, 2017 Opinion 33 (Apr. 14, 2017) (slip op.), the Supreme Court addressed the issue of whether Idaho Rule of Civil Procedure 54(c) imposes a duty on a district court to sua sponte grant injunctive relief when it is not requested.  The Court addressed a prior version of Rule 54(c), which provided: “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”  (Emphasis added.) The Court concluded that a lower court was not obligated to grant unrequested relief based on the plain language of the Rule because the plaintiffs were “not the ‘party in whose favor’ the judgment was rendered.” Slip op. at 5. However, the Court noted that Rule 54(c) has been amended, effective July 2016, to provide: “final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.” Id. at 5 n.1 (emphasis added). The Court provided no guidance as to how its holding would apply to the current Rule 54(c) language. With the holding in Cundick being closely tied to the very language modified in the Rule, it appears that this issue could come before the Court again in the coming years.

Amendments to the Idaho Appellate Rules address electronic briefs, standard transcripts in criminal appeals, and appealable judgments from the magistrate courts

The Idaho Supreme Court recently announced amendments to Idaho Appellate Rules 11.1, 12.1, 12.2, 25, 27(f), 28(g), 32(b), 33, 34(a), 34.1, and 40. The changes go into effect July 1, 2017. Attorneys handling appeals before the Supreme Court should note that the submission of electronic briefs will be mandatory. Criminal appellate attorneys will want to consider changes to the reporter’s standard transcript. Attorneys who handle magistrate appeals involving child custody need to be aware of changes to Rules 11.1, 12.1, and 12.2.

There are other rule changes as well. Here are the highlights: Continue Reading

Idaho Supreme Court amends Idaho Rule of Civil Procedure 54 to address changes to Idaho Code § 12-121

In response to the Idaho Supreme Court’s controversial decision in Hoffer v. Shappard, 160 Idaho 868, 380 P.3d 681 (2016), the Idaho legislature amended Idaho Code § 12-121 (effective March 1, 2017). The statute now reads:

In any civil action, the judge may award reasonable attorney’s fees to the prevailing party or parties when the judge finds that the case was brought, pursued or defended frivolously, unreasonably or without foundation. This section shall not alter, repeal or amend any statute that otherwise provides for the award of attorney’s fees.

In response to the change, the Idaho Supreme Court recently announced an amendment to Idaho Rule of Civil Procedure 54, adding the following provision as Rule 54(e)(2):

Pursuant to Idaho Code Section 12-121. Pursuant to the statutory amendment effective March 1, 2017, attorney fees under Idaho Code Section 12-121 may be awarded by the court only when it finds that the case was brought, pursued or defended frivolously, unreasonably or without foundation, which finding must be in writing and include the basis and reasons for the award. No attorney fees may be awarded pursuant to Idaho Code Section 12-121 on a default judgment.

Rule 54(e)(2) is effective retroactively as of March 1, 2017. You can read the full amendment here: https://isc.idaho.gov/rules/Amendment_of_IRCP_54_03.01.17.pdf.

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