Supreme Court Abrogates Fourth Circuit Rule on Time to Appeal Contractual Attorney’s Fee Award
Until this morning, the following rule prevailed in the Fourth Circuit:
[A] claim for legal costs based on a contractual provision that is not limited to expenses incurred during the underlying litigation is an element of damages to be proved at trial under the substantive law governing the action, see Fed.R.Civ.P. 54(d)(2), 58(c), and that a judgment that leaves open such a claim is not final and appealable.
Carolina Power & Light Co. v. Dynegy Marketing & Trade, 415 F.3d 354 (2005)
No more. This morning, the Supreme Court cited Carolina Power as standing on one side of a circuit split, and the Court unanimously went the other way: “Whether [a] claim for attorney’s fees is based on a statute, a contract, or both, the pendency of a ruling on an award for fees and costs does not prevent, as a general rule, the merits judgment from becoming final for purposes of appeal.” Ray Haluch Gravel Co. v. Central Pension Fund, __ U.S. __ (Jan. 15, 2014).
Anyone litigating contract actions in the Fourth Circuit should take note. Decisions from the Third, Eighth, and Eleventh Circuits also were cited on the losing side of the circuit split.
SCOTUS Requests Views of Solicitor General in Comptroller v. Wynne
In January of last year, the Court of Appeals of Maryland, in Maryland State Comptroller of the Treasury v. Wynne, 431 Md. 147 (2013), held that Maryland tax law discriminated against interstate commerce by failing to allow a tax credit for certain “pass through” income for Subchapter S corporations. Judge McDonald wrote the majority opinion, and Judge Greene, joined by Judge Battaglia, dissented. In May, the Court of Appeals denied reconsideration, but it stayed its mandate pending the Comptroller’s filing of a petition for certiorari with the United States Supreme Court. SCOTUSblog has been tracking the case.
Today’s orders list from the United States Supreme Court included an order in Comptroller v. Wynne that “[t]he Solicitor General is invited to file a brief in this case expressing the views of the United States.” Though such a call for the views of the Solicitor General (CVSG) is far from a guarantee that the Supreme Court will grant review, it is an indication that the Supreme Court is taking the petition seriously. Read More…
Looking for the Next Big Case, Part II: The Court of Appeals Decides B.J.’s Wholesale Club, Inc. v. Rosen
Four months ago, as part of looking for “the next big case,” I previewed two cases that were scheduled for argument in the Court of Appeals in September and October. One of those cases was BJ’s Wholesale Club, Inc. v. Rosen, No. 99, September Term, 2012. About six weeks ago, the Court decided that case, reversed the Court of Special Appeals, and held that a parent’s pre-injury waiver of a minor child’s negligence claim against a commercial enterprise does not violate public policy. Read More…
Who Is on the Court Of Appeals: The Role of Retired Judges
By Kevin Arthur
As most Maryland lawyers probably know, the Court of Appeals consists of seven judges from the various geographical regions in the state. But because the Maryland Constitution requires judges to retire at age 70 and then permits retired judges to be recalled into service, the Court of Appeals currently has as many as six additional members who serve provisionally on a case-by-case basis . After Judges Battaglia and Harrell are required to retire over the next two years, the Court may have more provisional, retired members than it has active members.
In recent years, retired judges have had an outsized role in some of the Court’s most prominent and controversial decisions. Most notably, in Tracey v. Solesky, 427 Md. 627 (2012), two retired judges provided the decisive votes in support of a 4-3 opinion that held that landlords could be held strictly liable for injuries caused by their tenants’ pit bulls. One of the retired judges authored the divisive opinion, which spurred a successful motion to reconsider some of the majority’s more expansive pronouncements (concerning liability for so-called “pit bull mixes”), unsuccessful efforts at corrective legislation in a special session of the General Assembly in 2012, the acrimonious collapse of a legislative compromise at the end of the 2013 legislative session, and additional legislative proposals in the upcoming session. Read More…
The 4th Circuit Bids Farewell to the Separate Statement of Facts
The Fourth Circuit recently gave notice of its amendment to Local Rule 28(f) in order to conform to amendments to Federal Rule of Appellate Procedure 28. The amendments to the federal rule eliminate the Statement of Facts as a separate section of a federal appellate brief. Of course, the Fourth Circuit isn’t doing away with a recitation of the facts, it is just following the new federal rule, under which the Statement of the Case and the Statement of Facts are now consolidated into one section of the brief that is to provide a “concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record.” Given these changes to Fed. R. App. P. 28, the Fourth Circuit is amending its Local Rule 28(f) to eliminate the reference to the Statement of Facts and to describe the factual statement to be included by counsel in the statement of the case. Specifically, the local rule now requires that the Statement of the Case “include a narrative statement of all of the facts necessary for the Court to reach the conclusion which the brief desires, with references to the specific pages in the appendix that support each of the facts stated.”
December 2013 Certiorari Grants, Including 2 New DNA Cases
By Steve Klepper (Twitter: @MDAppeal)
On December 20, 2013, the Court of Appeals of Maryland granted certiorari in seven cases. All seven cases have been set for argument during the term beginning September 2014.
The first two listed cases include interesting variations on the Maryland DNA Collection Act, which the U.S. Supreme Court upheld in Maryland v. King, 133 S. Ct. 1 (2012). Two criminal defendants now want to use DNA matches to point the finger at other potential culprits. Read More…
Five Names, Including Neal Katyal, Reportedly to Be Forwarded for Judge Davis’ Seat on 4th Circuit
By Michael Wein
For now, I’ll have to attribute this to ‘reliable hearsay,’ as opposed to any personal knowledge, but Maryland’s Senators apparently are recommending to President Obama five potential nominees to replace Fourth Circuit Judge Andre Davis, who is taking senior status in February.
The five names reportedly include Neal Katyal, who is presently with Hogan Lovells in D.C., and who was acting Solicitor General following President Obama’s appointment of Justice Elena Kagan to the Supreme Court. Read More…
In re 2012 Legislative Districting and the Permanence or Expedience of Judicial Review
Every ten years, after each national census, provisions in the Maryland Constitution (Art. III, § 5) require that the State’s 47 Legislative Districts be reviewed for reapportionment. Those same provisions require the Governor to submit to both houses of the State legislature, the Senate and the House of Delegates, a plan for the 47 Districts, making boundary changes to the District in response to population changes and as necessitated by and consistent with state and federal constitutional requirements. Failing the General Assembly’s adoption of its own plan, the Governor’s plan becomes law, and that became the case for Governor O’Malley’s plan in response to the 2010 census (“2012 Plan”), which became the law on February 24, 2012.
The reapportionment provisions of the Maryland Constitution also vest the Court of Appeals with original jurisdiction to review any registered voter’s constitutional challenge to the legislative redistricting plan (Art. III, § 5). On March 6, 2012, the Court of Appeals issued an order in Matter of 2012 Legislative Districting of the State, 429 Md. 301, 55 A.3d 713 (2012), setting forth procedures to accommodate such challenges and appointed retired Court of Appeals Judge Alan M. Wilner as the Court’s Special Master, to conduct any necessary hearings. Eventually, after hearings before the Special Master, the submission of his recommendations, the taking of exceptions thereto, and argument before the Court, the Court issued a one page order on November 9, 2012, rejecting all challenges to the 2012 Plan, with opinion to follow. The Court (Bell, C.J., ret.) issued that opinion (cited herein as “Slip Op.”) on December 10, 2013. Read More…
Certified Questions to the Court of Appeals Now Online
By Michael Wein
Certified questions are an irregular part of Court of Appeals practice (averaging about 3-5 per year), usually from a Maryland Federal District Court judge or a Fourth Circuit panel asking the Maryland Court of Appeals to opine on an unsettled (but dispositive) issue of Maryland law. Theoretically any jurisdiction, state or federal, in the United States could certify a question for the Court of Appeals to decide under the Maryland Uniform Certification of Questions of Law Act, found at sections 12-601 to 12-613 of the Courts and Judicial Proceedings Article. Before the recent web revamp about three months ago, unless you were a litigant in the case, it was difficult to know just from checking the judiciary web site, what, if any, certified questions were being considered in the Court of Appeals. Usually the first notice was when the case appeared on the online oral argument schedule. Read More…
Read This: A Great Fourth Circuit Dissent
By Steve Klepper (Twitter: @MDAppeal)
Judge Andre M. Davis is, in my opinion, one of the two best writers on the Fourth Circuit. (The other is Judge J. Harvie Wilkinson III.)
Earlier this week, readers of the Fourth Circuit’s opinions were treated to a powerful dissent by Judge Davis in United States v. Kerr, No. 12-4775 (4th Cir. Dec. 3, 2013). Without taking sides between the majority and the dissent on the substantive question (the application of the Armed Career Criminal Act to North Carolina convictions), I’d like to highlight the dissent as an excellent piece of legal writing. Read More…
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