Daily Decisions: Division 1 Limits Bases for Attorneys’ Fee Awards

Dallas and Marylou Bunney wanted to build a new home. Unfortunately for them, their plans called for a home that exceeded the height limit set by their homeowners associations (“HOAs”). But hey, you only live once. So the Bunneys figured, whatever, you only live once. They built the thing anyway.

The HOAs sued for violation of the HOA covenants. The trial court (1) enjoined the building of the Bunneys’ home and (2) awarded the HOAs their attorneys’ fees for the Bunneys’ prelitigation bad faith conduct. In Greenbank Beach and Boat Club, Inc. v. Dallas K. Bunney (Division 1, May 29, 2012), the Court of Appeals affirmed the trial court’s injunction, but reversed the award of attorneys’ fees. Continue reading


Daily Decisions: A (Limited, I Hope) Victory for Employers’ Power to Restrict Former Employees

Robert S. Moore v. Commercial Aircraft Interiors, LLC (Division 1, May 29, 2012), is not factually unique — person leaves a job, he wants to work for a competitor, lawsuits are threatened, and we end up in court — but the Court of Appeals’ ruling seems to touch on some new law regarding what sorts of litigation threats a former employer can make (hint: lots of latitude) and what redress a former employee has against those threats (hint: you’re S.O.L.). Don’t get too excited, however. While a broad reading of the opinion gives a lot of power to employers to restrict their former employees, I think a narrower (and more appropriate) reading just requires a former employee to produce some (any!) evidence of improper purpose behind an employer’s allegedly tortious actions.  Continue reading

Daily Decisions: Court of Appeals Again Clarifies Subject Matter Jurisdiction

There are a lot of facts in MHM&F, LLC v. Edward Pryor, Jr. (Division 1, May 21, 2012), but none of them really matter. The short story: Pryor owed money on a mobile home space, he didn’t pay, so the plaintiff filed an unlawful detainer action against him. Pryor lost.

On appeal, Pryor raised two issues that he failed to raise in the trial court: (a) that the wording on the summons was defective and (b) that the mobile home association for the group of lots should have been named as a necessary party. Pryor claimed his failure to raise these issues below was not fatal because they both went to the trial court’s subject matter jurisdiction. Continue reading

Daily Decisions: “Slayer Rule” Does not Apply to Self-Defense

“Marni Rice and Michele Parrott were in a committed relationship” — until the two had an argument and Parrott wound up dead. Plaintiff Robin Parrot-Horjes then sued individually and on behalf of Parrott’s estate seeking (a) damages for wrongful death and (b) to prevent Rice from taking money from Parrott’s life insurance policy under the common law “slayer rule.” Continue reading

Daily Decisions: Wanna Appeal a Fine? There’s a Fee for That

John Morrison was hit with a bunch of Department of Labor & Industries citations for violations of the state electrical laws. He wanted to appeal, so he did. But he didn’t pay the $200 filing fee for such appeals. Why not? Well, Morrison thought the fee was unconstitutional because the “pay to appeal” procedure deprived him of property (his money!) without due process. Continue reading

Daily Decisions: Adverse Possession and the Revocation of Permission

James R. Herrin v. Ellen O’Hern (Division 1, May 14, 2012), is an adverse possession case, which is fine, but I think it’s more interesting as a summary judgment case. In short, the law placed a burden on the Herrins to establish a relevant fact and the Court concluded that they had done enough to create an issue of fact on the question. I’m not so sure about that. But first… the facts!

Back in the day, the Rothenbuhlers owned a large piece of land that a farmhouse, a field, a barn, and some acreage. In 1993, by deed of gift, the Rothenbuhlers transferred the southwest parcel (which is the farmhouse parcel) to James Herrin (who used to be married to one of their daughters. Then in 2003, the northeast parcel (barn, field, &c.) was transferred to Ellen O’Hern (another of the Rosthenbuhlers’ daughters) from her father’s estate following his death.

Well, it turns out that near the border between the parcels, there is a garage, some land, and a little fenced-in area. That land is technically on O’Hern’s property, but the record is clear that it “has always been used by the owners of the farmhouse property,” which are now the Herrins.

[Note: The Court of Appeals repeatedly referred to plaintiffs Herrin and Herrin as the Herrins, but then renders the possessive as the Herrins’s. Yikes. Perhaps we could call that an adverse possessive? Ha! Jokes!]

This little problem was discovered after a 2008-ish survey; before the survey, nobody was aware of the encroachment. But once discovered, of course, everyone sued everyone else, with the Herrins claiming title to the land by adverse possession. O’Hern then moved for summary judgment, assuming that the Herrins could establish actual, open, continuous, and exclusive use. But she argued that the Herrins’ use was permissive, not hostile, and therefore could not support adverse possession. Continue reading

Daily Decisions: Personal Guaranty Is Personal, Not Official Act of Company Executive

Carol Sauter v. Houston Casualty Company (Division 1, May 14, 2012), is quite a simple case, but it is important for any executive out there who is thinking about signing a guaranty in connection with a company transaction. Perhaps such an executive signs the guaranty thinking “Who cares! No risk to me! My D&O policy will cover me if anyone ever tries to enforce this guaranty!” Well, think again, buddy. Continue reading