Blow limitations, file for arbitration.

 The three-year Statute of Limitations is Maryland Canon- if you fail to file a lawsuit for breach of contract or most torts within three years, you are out-of-court. Many lawsuits are dead on arrival where a claim has been filed even one-day beyond the Statute of Limitations.

The Statue of Limitations is memorialized in the Maryland Code, established by the Legislature, and enforced daily by the judiciary at all levels. It is an ancillary fact that a top cause of legal malpractice is missing Statutes of Limitations, resulting in a total loss of client rights to sue. The deadline for filing claims is just that important.

Contracts sued upon often contain arbitration clauses. These give parties to a contract the right to elect privately conducted arbitration, complete with all the trappings of a court case, such as written discovery, depositions, witness subpoenas and evidentiary hearings. For decades, it has been an article of faith that the same three-year Statute of Limitations applicable to court cases also limited the time for filing a demand for arbitration. 

But not anymore. On March 25, 2022, Maryland's highest appellate court issued its opinion that the Statute of Limitations does not impose the same three-year limitation on a demand for arbitration that it imposes on a civil court filing.

In Park Plus v. Palisades Parking, the Court held that an arbitration provision in a written contract is not automatically constrained by the Statute of Limitations. The Statute of Limitations applies only to "a civil action at law." A demand for private arbitration is not "a civil action at law."

A decision that may well breathe life into otherwise stagnate and expired claims.

The Court did make clear that parties to a contract are free to impose filing deadlines on arbitration demands. You can expect language doing just this in your next contract, as lawyers throughout the State are now bent over keyboards, pecking out language that will quickly bring arbitration demands to heel within three-years, or less. 

Litigating in Overtime - How to "undo" a final judgment and reported decision.

The law exists to give us finality. Litigants seek final dispositions of their business disputes, whether by mediation, arbitration, trial or appeal. Future conduct is often guided by a final decision by a court. As a law firm, we work hard to achieve litigated outcomes that benefit our clients. Recently, our work lead to a reported decision from the Maryland Court of Special Appeals. We both won for our specific client, and obtained broad statements of law that would guide similar cases involving others. The case was done, except that we were not done with the case.

My client was sued in the Circuit Court for breach of an alleged contract. The Plaintiff demanded significant money damages. Our client prevailed in the trial court, persuading the judge that a trial was not necessary. Our client received a summary judgment.  On appeal, the Court of Special Appeals affirmed the trial court-- issuing a reported decision.

Reported decisions are important. They represent a small percentage of cases decided on appeal. A reported case becomes part of Maryland’s permanent body of judge-made law. A reported case goes beyond resolution of the dispute between those particular litigants. A reported decision guides the future conduct of all similarly situated persons in Maryland, until the case is over-ruled or the law is modified by yet another case. This is how Maryland’s common law grows and evolves.

Trial lawyers, like us, really do enjoy winning. And we enjoy it just a bit more when the win also results in a reported decision.

In our recent case, however, our opponent filed a timely motion for reconsideration to the Court of Special Appeals, tolling the issuance of the Court’s mandate.  While the motion was pending, and before an opposition was due, counsel for the losing party made a settlement offer that would greatly benefit our client. But to accept the offer would require that we work with the other side to vacate a reported decision.

How does that work? My client was eager to accept the offer -- who wouldn’t want a check, despite being sued?  But the hangup, I thought, was: how do you vacate a reported decision?

The answer, it turns out, lies in Md. R. 17-404(f), which permits the Court plenary authority to dispose of cases that are resolved through the CoSA ADR division.  And so, with the assistance of the director of the CoSA ADR division, we submitted a consent order which was vetted and approved by the Chief Judge.  Within a matter of days, a consent order was issued by the CoSA vacating the reported decision, withdrawing the decision for reporting, and remanding the case with instructions for the Circuit Court to vacate its order and dismiss the case with prejudice.

Final judgment, then, need not impede a favorable settlement. A winner might do just a little better, and a loser might avert complete catastrophe, by continuing settlement negotiations right through the very end of a case.

Checks and balances temporarily beat back Prez Trump's muslim immigration ban.

On January 28, 2017 Judge Ann Donnelly of the U. S.District Court for the Eastern District of New York entered an order staying operation of the Administration's faith-based travel ban.  A full copy of the order can be read here.

In Seattle, Judge James Robart entertained a similar motion and also entered an order staying operation of the travel ban. Here is a one hour video of the full court hearing, leading to his decision.

Here is the complete docket for the U.S. Court of Appeals for the Ninth Circuit where you can read all filings in the appeal.

Want to help the lawyers fighting the faith-based travel ban? Contribute.

February 10, 2016: Here are some links of interest, after the appellate court's decision to leave the temporary stay of the Executive Order in Place--

1. February 9, 2017 Opinion of the U.S. Court of Appeals for the Ninth Circuit.
   
2. Summary of the various Amicus Briefs filed by others.
   
3. Amicus Brief of HIAS, a refugee relief organization.
   
4. Amicus Brief of fifteen States and the District of Columbia.
   
5. Memorandum of law to the Amicus Brief of fifteen States and D.C.
   
6. Amicus Brief of the Fred Korematsu Ctr. for Law and Equality.
   
7. Amicus Brief of the Anti-Defamation League.
   
8. Amicus Brief of the ACLU and ACLU of Washington State.
   
9. Amicus Brief of technology companies and various businesses.
   
10. Motion for leave to file as Amicus Curiae by various law professors.
    
11. Amicus Brief of Freedom Watch in favor of the Executive Order.

For want of a staple, a lawsuit was filed.

“For the want of a nail the shoe was lost,

For the want of a shoe the horse was lost,

For the want of a horse the rider was lost,

For the want of a rider the battle was lost,

For the want of a battle the kingdom was lost,

And all for the want of a horseshoe-nail.”

- Benjamin Franklin

On September 29, 2016 the Maryland Court of Special Appeals decided that the lack of a staple connecting a signature page to the remainder of a Will does not render the Will invalid.

The case of Castruccio v. Estate of Castruccio was an otherwise common Will contest. The twist was the disgruntled heir's reliance on an almost 90 year old case that nullified a Will for lack of an attached signature page. The heir challenged the Castruccio Will because the original filed in the courthouse consisted of six unconnected pages- none were stapled together. 

For lack of the traditional two-pronged metal fastener, long used to demonstrate the unity of a document, the disgruntled heir sought to undo the testamentary wishes of her relative.

For her proof, the heir's lawyer obtained a copy of the original Will with an affidavit stating that the court's scanner was precise enough to detect the absence of staple holes in the document. This evidence grounded the claim that the Will could not be valid because the signature page was disconnected from the prior pages. 

This opinion came pretty close to containing the phrase "poppy cock."  The appellate court declared that the ancient case law was not to be read in a way that would create an "engine of destruction" for commonly unified documents. For example, the use of a paper clip to secure the pages in a way that does not leave a mark on the page would have also nullified the Will under the heir's analysis. Only the tried and true staple for her!

Lawyers use word processing programs that are often formatted to keep signature pages separate, allowing minor revisions without disrupting pre-drafted signature blocks. Documents are scanned, and the "original" my now only reside on a hard-drive as a .pdf file. In fact, most of our courts now require electronically filed documents, with the electronic signatures. There are no "staples" to speak of.  For that matter, there is very little physical mail exchanged among lawyers, any more.

The Maryland Court of Special Appeals reconciled modern practices with some of the oldest legal principles, dating from the 1700's. It recognized that the "single document" requirement for Wills sought to assure witnesses were acknowledging documents that were continuous in content, and complete in form. Physical attachment was often the easiest means to identify a document as unified. But that is just not true, anymore.

Freddie Gray documents available for you to read!

The 400+ page record extract is available to the public. It is part of the States appeal of orders refusing to compel an officer to testify against others.

Follow this link to the appellate court website.

When does the fat lady sing?

Appeals can only be taken from a final order of the trial court. A non-lawyer may well presume that a court order saying "you lose" on a motion is final, and will send the case to Annapolis (where our appellate courts are located).

Nope.

The court order declaring "you lose" is often just an early step in a battle to get to the final-final decision, and your right of appeal. In fact, one of the most common questions our law firm gets from potential clients is "when may I appeal?"  The Maryland Court of Special Appeals explained how this works in a very recent appeal arising from a foreclosure, called Baltimore Home Alliance v. Geesing.

In this case, the third-party purchaser put down $27,000 dollars at the auction but failed to close the deal.  The foreclosing lender declared the third-party in default and asked the circuit court to enter an order permitting a second auction sale, and forfeiture of the deposit.   The circuit court granted the motion, and the property went back up for auction, where it was purchased by another party. The deposit was forfeited to the foreclosing lender.

Seems pretty final, right?  A broken deal, a court order of default and forfeiture of the $27,000 deposit and a resale of the property.The Baltimore Home Alliance thought so, and it filed an appeal with the Maryland Court of Special Appeals.

The case was not final, and the appeal was premature.  But why?

In the context of foreclosures, it is the final auditor's report that signals the fat lady to tune up. Once the court approves the audit, then all prior decisions are deemed final for purposes of appeal. And so while the court ordered that the third-party buyer's $27,000 was forfeited to the foreclosing lender, it did not say whether it would be a credit against other damages incurred because of the lost sale.  That would show up in the auditor's report. And even then, the parties could object to the auditor's treatment of the court's order and make argument for their positions at a hearing. Only after disposition of those objections is the forfeiture order, entered much earlier in the case, deemed final.

And so, "finality" is not the same in every case.  It depends on the nature of the action, the number of parties, and the stage of the proceeding when the adverse ruling was made. What seems final to you may just be the beginning of the next fight.

The Fat Lady sings a different tune in every case.