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Playing Catch-Up

I was going to title this post, "AT&T Sucks."  We got done with our move over the weekend, and if you ever wonder why this country is going to hell in a handbasket, look no further than the phone companies.  The Bell monopoly was dismantled a quarter century ago to provide more competition in the telephone industry, but it seems that the only competition between them is which one can outdo the others in gross incompetence and outright fraudulent conduct.

At any rate, time to get back to some blogging.  There've been a number of decisions coming out of the courthouse down at Lakeside and Ontario, so we'll start there.  I'll take a look at a couple of civil decisions today, and some criminal ones tomorrow.  On Thursday, we'll talk about appointed counsel fees, and Friday I'll do a general rundown on some recent decisions of interest.

This decision, Thomas v. Nationwide, is interesting from a number of angles.  First, if you do work on questions of auto insurance coverage, you might want to take a look at its discussion of the various procedural requirements for opinions in declaratory judgment actions.  It's not enough for the judge to say, "You win"; the trial court's entry must be sufficiently explicit in "construing the documents at issue" to "declare the rights of the parties."  The opinion doesn't go very far in explaining exactly what the trial judge should do to meet the specificity requirement, but prior cases suggest that some explanation of why coverage is or is not extended should be sufficient.

The opinion, though, is somewhat disconcerting from a procedural angle.  The court dismissed the appeal on the basis that there was no final order, because the trial judge, in granting a directed verdict for the insurance company, hadn't complied with Civil Rule 50(E)'s requirement that "the court shall state the basis for its decision in writing."  Citing another decision from three years ago, the Thomas court concludes that the court's failure to do so rendered its decision a non-final order. 

But the case from three years ago doesn't support the decision in Thomas; it holds that while a court should make specific findings, the party against whom the verdict is directed waives the issue if he doesn't object at the time. 

The net result is that the court finds that the directed verdict for the defendant was improper, but instead of remanding the case back to the lower court to fill in the details, the court simply dismisses the appeal, claiming it's not a final order.  What exactly is the plaintiff supposed to do at this point?

On the plus side, though, the court puts another nail into the coffin of arbitration agreements in consumer transactions in Felix v. Ganley Chevrolet.  The Felixes had bought a car on the understanding that they'd be given a 0% interest rate, but that the rate was only good that day.  They signed the papers, but when they returned to pick up the car, they were told that the GMAC wouldn't approve the rate for less than 1.9%.  They signed new papers, only to be informed a month later that GMAC wouldn't give the loan for 1.9%, either, but that they could get one at Huntington for 9.44%.  And here I thought all the moral derelicts worked for the phone companies...

At any rate, the trial court rejected Ganley's contention that the Felix's claim had to be submitted to arbitration in accordance with the provisions of the sales contract, and the appeals court affirmed.  Judge Gallagher's decision gives an excellent exposition of the law on arbitration provisions, and goes the extra mile in holding that arbitration provisions in consumer contracts are going to receive very close scrutiny.  I've done a number of posts on arbitration provisions before -- you can find them just by plugging "arbitration" into the Find box -- and Felix cements my view that this court is going to be extremely reluctant to uphold an arbitration provision in a standard consumer transaction. 

A last point.  I know some of you are saying, "Gosh, Russ, didn't you tell us that you'd have a new website design up by now?"  To which I respond by quoting Ring Lardner from The Young Immigrants:

Are you lost Daddy I arsked tenderly.

Shut up he explained.

Otherwise, good to be back.  See you tomorrow.


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