Can State Legislature’s “Impair” the Obligations and Rights of Insurance Contracts to Force Insurers to Cover Losses to Commercial Enterprises Under Commercial Insurance Policies Due to COVID19?

Post on Contract Clause and State Legislation to Force Insurers to Cover Losses Under Commercial Insurance Policies due to COVID19 Pandemic

Lex Fori PLLC and Carson J. Tucker Secure Unanimous Victory in Supreme Court – Michigan Supreme Court Issues Unanimous Opinion Overruling Prior Michigan Case Law and Reversing Court of Appeals Decision

I’ve already posted this on the new site blog, here: Lex Fori PLLC and Carson J. Tucker Secure Unanimous Supreme Court Opinion Overruling Michigan Law, and at some point we’ll incorporate all posts into the new site. This is for current followers, etc., of this blog. Here is the original post:

After a second appeal to the Supreme Court of Michigan in a case argued by Carson J. Tucker, the Court overruled state case law and holds that federal law preempts state courts from ordering a division of military disability pay in state court divorce proceedings.

More analysis on the opinion in Foster v Foster will follow, but suffice it to say this is a victory for all veterans in Michigan going forward that has taken nearly 6 years to procure and two Supreme Court appeals (an interim United States Supreme Court decision), and believe it or not, still some fighting to do. We will not quit!

Click to access Foster-OP.pdf

 

 

Supreme Court of Michigan Grants to Consider Retroactivity of the Statutory “Open and Obvious” Doctrine in Actions Against Governmental Entities

On April 17, 2020, the Michigan Supreme Court granted an application for leave to appeal in the case of Buhl v City of Oak Park, Michigan Supreme Court Case No. 160355, to address the relatively new statutory “open and obvious” provision, MCL 691.1402a(5), which is in the municipal “sidewalk” exception to governmental immunity in Michigan’s Governmental Tort Liability Act (GTLA), MCL 691.1401, et seq. (The statutory incorporation of the common law defense was written into the statute by the legislature in 2016 and became effective in 2017, Public Acts 2016, No. 419, effective January 4, 2017).

The “open and obvious” doctrine has a long history as a defense to a premises liability action against landowners in Michigan “common law” jurisprudence. It’s incorporation as a “statutory defense” in the GTLA comes with an entirely new interpretive paradigm, because provisions within the GTLA are to be construed broadly in favor of the government on the generally accepted (and correct) theory that governmental immunity is broad and the statutory exceptions that the Legislature passed in the 1964 GTLA lifting the otherwise protective veil of immunity (and allowing courts to exercise jurisdiction over the merits of the claimant’s case) are to be narrowly construed. Interestingly, the 1964 Legislature had already incorporated the ability of governmental entity defendants to raise common law defenses in suits filed under the GTLA, but the right had been called into doubt in a 2002 Supreme Court decision, which judicially abrogated the right of municipalities to raise the defense in an action under the “sidewalk” exception to immunity.

In the published Court of Appeals opinion, Buhl v. City of Oak Park, Slip Opinion of the Court of Appeals, issued August 29, 2019, the Court held that the newly enacted subsection allowing the municipality to raise the common law defense of the “open and obvious” doctrine, applied retroactively to an incident that occurred before the provision became effective. Thus, the municipal defendant could raise it as a bar to the claimant’s suit. The Court of Appeals therefore affirmed the Circuit Court’s holding granting summary disposition on immunity grounds to the government.

Regarding the dissent’s rationale that a vested right had been extinguished by virtue of the amendment and therefore retroactivity should not apply, the majority panel reasoned: “[T]he cause of action for injuries sustained on a municipal sidewalk remains extant; no one would say, in light of the statutory amendment at issue, that plaintiff’s complaint fails to state a claim upon which relief can be granted in that the cause of action no longer exists.” Slip Op. at 7.

Importantly, as it relates to governmental immunity and the 1964 GTLA, the Court of Appeals recognized that the original intent of the Legislature in enacting the GTLA was to provide limited exceptions to the broad grant of immunity from suit and liability usually enjoyed by all governmental entities. The original act therefore provided that “all defenses available to private parties” were available to the government in actions brought against it. However, the Michigan Supreme Court held in 2002 that the “open and obvious” doctrine was not available to municipalities under the “sidewalk exception” in MCL 691.1402(1). Jones v Enertel Inc, 467 Mich 266; 650 NW2d 334 (2002). The Court of Appeals noted that the 2016 amendment intended to restore the defense that had traditionally been available to governmental entities.

The Court concluded that by “enacting 2016 PA 219, the Legislature has stated that the Jones doctrine was not what it had intended for the law to be; rather, the amendment shows that it was the Legislature’s intent for defenses available to private parties, as provided for by the 1964 Act, to have applied all along.” Slip Op. at 14. “[I]f the Legislature overrules a judicial decision by restoring the status quo ante, it demonstrates what it intended the law to be all along; under such circumstances, the new legislation does not enact a substantive change in the law.” Id. at 15.

“The majority’s view is that the Legislature, through the 1964 act and 2016 PA 219, clearly manifested what its intention was for the law to have been all along, i.e., the availability of the open and obvious doctrine to municipalities, and thus properly understood, the 2016 act did not effect a change in the law. The dissent’s view is that the Jones doctrine was the law prior to the enactment of 2016 PA 219, notwithstanding that the Legislature has now clearly manifested its view that the Jones doctrine was erroneous all along. Thus, the dissent views retroactive application of 2016 PA 219 as improperly denying plaintiff a right because the act constituted a substantive change in the law; the majority’s view is that allowing plaintiff to reap the benefits of a repudiated rule, which the Legislature has conclusively stated was incorrect and never should have applied, does not constitute ‘a substantive change in the law,’ would constitute an unwarranted windfall for plaintiff, and therefore cannot constitute ‘a vested right.'” Slip Op. at 15.

The majority panel concluded that the Legislature’s enactment of 2016 PA 419, which did not legally bar plaintiff’s cause of action, and through which the Legislature overruled the Jones doctrine and reinstated the pre-Jones state of the law, overcame the presumption for prospective application and thus has retroactive effect to events which preceded its enactment, including the claimant’s injury in this case. Slip Op. at 17.

The majority’s well-reasoned opinion appears to be exactly right. The onus is on the claimant pleading in actions against the government to both plead and prove his or her case. This was expressly stated in Mack v City of Detroit, but it has always been the case that in order to access the courts in an action against a governmental entity, one has to carry the burden, and it does not shift to the government because, as the Court said in Mack immunity is an inherent characteristic of the government’s functioning. It is always immune unless the claimant can plead and prove all elements of his or her case. As opposed to ordinary civilian defendants in ordinary civil litigation, the claimant in a suit against the government always carries this burden. Litigation against the government is not governed by the same standards of review. In this case, these principles of immunity, although strong in the undercurrents of this case’s rationale, have been muted a bit because the claimant presumably satisfied the initial burdens – the preconditions to suit; she successfully pleaded in avoidance of immunity. (The Court here does not even address an immunity claim lodged by motion for summary disposition under Michigan Court Rule MCR 2.116(C)(7) (the plaintiff’s claim is subject to immunity provided by law), but rather addressed the government’s motion under MCR 2.116(C)(8) (failure to state a claim) and (C)(10) (there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law). However, it is clear that because the Legislature, and only the Legislature can lift immunity and allow suits to proceed, as this one has, it can express whatever limitations it wishes in the exercise of this right. This is because the principle of governmental immunity is jurisdictional and only the Legislature is presumed to be able to allow suits to proceed. The Jones case represented a judicial usurpation of the Legislature which, at least in actions under the GTLA, cannot occur. All of the defenses that were available at common law remained available to the government after the limited exceptions to immunity were passed in 1964. Jones was an anomaly and thus, the majority is correct that the Legislature restored what the law was and should always have been as it relates to the government’s right to raise the “open and obvious” doctrine as a defense.

One of the reasons the application to appeal in this case has been granted most likely has to do with the fact that there is at least one other Court of Appeals opinion that came to an opposition conclusion in Schilling v City of Lincoln Park, Unpublished Opinion Per Curiam of the Michigan Court of Appeals, issued May 16, 2019 (holding that MCL 691.1402a(5) should not be given retroactive effect).

On balance, however, the majority opinion written in this case by Judges Tukel and Colleen O’Brien, the latter of whom has significant governmental immunity law experience, appears to be solid and the correct result.

Attorney Carson J. Tucker has participated in and argued some of the most significant governmental immunity cases in Michigan during the past decade. Mr. Tucker presented direct representation to the governmental defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases, inter alia:

• Menard v Imig, et al., (Michigan Court of Appeals 2018), briefed and argued by Carson J. Tucker (2018), application pending in Michigan Supreme Court.
• Richko v Wayne County (6th Cir. 2016), United States Supreme Court (2017), petition for certiorari settled before disposition, briefed by Carson J. Tucker for Wayne County
• Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
• Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker for SMART in the Supreme Court
• Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker for Wayne County in the Court of Appeals
• Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker for Wayne County in the Court of Appeals and Supreme Court
• Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker for Wayne County in the Supreme Court

In addition, Mr. Tucker has provided direct support to governmental entities in filing “friend of the court”, i.e., amicus curiae briefs in support of the governmental defendants in the following cases, inter alia:

• Yono v. MDOT, ___ Mich. App. ___ (2014), after remand order, amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
• State Farm v. MMRMA, amicus curiae in Supreme Court for Oakland County, Wayne County, Macomb County, and Wayne County in support of MMRMA’s application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ (2014), application granted and consolidated with Hunter v. Sisco, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae in Michigan Supreme Court for Michigan Municipal League, et al., by Carson J. Tucker

Court of Appeals Addresses Effect of Incapacity to Give Notice in Suit Under Highway Exception

In Hightower v Dep’t of Transportation, Unpublished Per Curiam Opinion of the Court of Appeals, issued April 16, 2020 (Docket No. 348224), the Court of Appeals addressed how a temporary incapacity affects tolling under the 120-day notice period in the Governmental Tort Liability Act (GTLA), MCL 691.1404(1) and (3).

The first subsection requires notice of a claim to be given within 120 days of the accident. The second mentioned section, subsection (3) “tolls” the period if the claimant is “physically or mentally incapable of giving notice” during the 120-day period, and effectively extends the period to allow a notice to be timely if given “not more than 180 days after the termination of the disability.” Slip Op. at 1.

As the Court explained, MCL 691.1404(3) expands the notice period only for those “who are incapable of complying with the 120-day period” in the first place. Slip Op. at 5. Here, the claimant was injured after his bike struck a pothole. He spent three days in the hospital. Afterwards, he signed his notice of a claim within the initial 120-day period from the time of his accident. However, he did not provide the actual notice to the Court of Claims as required by MCL 691.1404(1) until 151 days after his accident.

The Department of Transportation moved for summary disposition arguing that the claimant failed to give notice within the required 120-day period. The claimant argued that his period of three days of incapacity (his hospital stay) effectively allowed him to claim that he had 180 days from the date of his discharge to provide the statutory notice. He argued he was entitled to the 180-day period because he had a disability during the 120-day notice period and that the shorter period therefore had to yield to the longer period.  Slip Op. at 3. The trial court denied the government’s immunity motion.

The Court of Appeals reversed and rejected this reasoning. It held that the GTLA provides a broad grant of immunity to governmental entities and strict compliance with the notice provisions must be observed. The Court ruled that the 180-day provision only applied to a subset of claimants who are incapable because of the disability of giving notice within the initial 120-day period.

Importantly, the Court of Appeals panel reiterated the jurisdictional principles underlying governmental immunity. First, the Court cited Rowland v Washtenaw County Road Comm’n, 477 Mich 197, 200-201; 731 NW2d 41 (2007), noting that the availability of a cause of action is “expressly conditioned on compliance with the notice provision….” Slip Op. at 4. “[B]y failing to timely notify the department, [the claimant] never subjected it to any liability in the first place.” Id. at note 2, relying on Fairley v Dep’t of Corrections, 497 Mich 290, 297-298; 871 NW2d 129 (2015). Fairley complimented a long line of cases interpreting and applying statutory notice provisions in statutes allowing for suits against governmental entities as conditions precedent to lifting the jurisdictional veil of preexisting immunity that protects governmental functions. See also Rowland, supra; Atkins v SMART, 492 Mich 707; 822 NW2d 522 (2012) (a case which I argued in the Supreme Court and wrote about here Supreme Court Interprets 60-day Notice Provision in MCL 124.419), and McCahan v Brennan, 492 Mich 730; 822 NW2d 747 (2012).

As the Court said long ago “it being optional with the legislature whether it would confer upon persons injured a right of action therefor or leave them remediless, it could attach to the right conferred any limitations it chose.”, accord Rowland, 477 Mich at 212. Of course, this means that any failure of a condition precedent required by a statutory right to sue the government means that the courts do not even have jurisdiction to proceed to consider the merits of claimant’s cause of action. Because allowing a suit to proceed effectively nullifies the protections afforded the government from not only the potential liability but the burdens of litigation, a trial court must determine as a matter of law whether the claimant has fully satisfied all conditions precedent and all statutory elements of the exceptions to broadly granted immunity. The government will be entitled to automatic stay of any trial court decision denying immunity and has an automatic right to appeal such a decision to have the legal issues addressed.

Attorney Carson J. Tucker has participated in and argued some of the most significant governmental immunity cases in Michigan during the past decade. Mr. Tucker presented direct representation to the governmental defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases, inter alia:

• Menard v Imig, et al., (Michigan Court of Appeals 2018), briefed and argued by Carson J. Tucker (2018)
• Richko v Wayne County (6th Cir. 2016), United States Supreme Court (2017), petition for certiorari settled before disposition, briefed by Carson J. Tucker for Wayne County
• Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
• Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker for SMART in the Supreme Court
• Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker for Wayne County in the Court of Appeals
• Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker for Wayne County in the Court of Appeals and Supreme Court
• Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker for Wayne County in the Supreme Court

In addition, Mr. Tucker has provided direct support to governmental entities in filing “friend of the court”, i.e., amicus curiae briefs in support of the governmental defendants in the following cases, inter alia:

• Yono v. MDOT, ___ Mich. App. ___ (2014), after remand order, amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
• State Farm v. MMRMA, amicus curiae in Supreme Court for Oakland County, Wayne County, Macomb County, and Wayne County in support of MMRMA’s application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ (2014), application granted and consolidated with Hunter v. Sisco, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae in Michigan Supreme Court for Michigan Municipal League, et al., by Carson J. Tucker

Michigan Supreme Court Issues Clarifying Order Suspending Due Dates for Jurisdictional Appeals

Following up on its prior order and as I had indicated in my prior blog post (Michigan Supreme Court Suspends All Case Filing Deadlines), the Court has now issued a clarifying order “tolling” filing deadlines for jurisdictional appeals; the time for filing a Claim of Appeal and Application for Leave to Appeal in the Supreme Court are jurisdictional – the Court will not recognize the filing if it is not filed within the time limit due date as specified in the Michigan Court Rules. A “late appeal” may be filed in the Court of Appeals, but the appeal is no longer one of right, but rather may be heard at the discretion of the Court.

For Supreme Court applications – late applications are not accepted.

The new order, AO 2020-4, effectively tolls the period of filing during the period of the Governor’s declared state of emergency (including any extensions) and it gives filers the same number of days to file upon expiration of the period of emergency as they had to file when the period commenced on March 24. It seems this particular aspect of the order was designed to avoid a large filing influx on the day after expiration of the filing period, which makes sense as the Courts would be flooded with appeals and applications on a single day.

This is an effective solution. Michigan Supreme Court is really proactive and handling this crisis extremely well! Well done!

Michigan Supreme Court Suspends All Filing Deadlines for Case Initiation and Responsive Pleadings to Day After Period of Emergency Lockdown Ordered by Governor Whitmer

By  Administrative Order 2020-03  the Michigan Supreme Court has ordered that all filing deadlines for all case initiation and for filing of responsive pleadings in proceedings already initiated are suspended during the period of emergency enunciated in Governor Whitmer’s Executive Order 2020-21 (COVID-19) (March 24 at 12:01 a.m. through April 13, 2020 at 11:59 p.m.).

The “days” during this period which would otherwise constitute the regular business day that a case filing is due under the court rules are being treated like a weekend day or holiday as under MCR 1.108(1), which allows the extension of filing deadlines to the next business day during which the court is open after the weekend or holiday day. The duration of the emergency is essentially being treated like a single consecutive non-business day or holiday for purposes of calculating the time period filing requirements under the Court Rules and particularly the aforementioned MCR 1.108(1).

The Court’s order only applies to case initiation and responsive pleadings to such cases; not to the filing of a brief, for example, that is already due for a case that has already been initiated.

Michigan Supreme Court Issues Emergency Procedures and Guidance and Instructions to State Courts Regarding COVID-19 Response – March 15, 2020

The Michigan Supreme Court issued guidance and directives yesterday (Sunday) March 15, 2020 providing wide latitude to state courts regarding scheduling, court activity, access and limitations on holding public hearings. The Court’s order also included some directives requiring electronic pleadings and video conferencing in certain circumstances.

The Court makes sure to subject its guidance to statutory and constitutional limitations.

In all, the order frees up the courts and court facilities to ensure public health and safety is prioritized (Paragraph 8), while continuing the administration of civil and criminal judicial proceedings. Any fees for remote proceedings shall be waived (Paragraph 2). Trial courts can also waive any locally, self-imposed adjourment rules / policies / administrative and procedural time requirements.

Expect some disruption and delays / adjournments. I’ve already had a trial court sua sponte postpone an April 7 proceeding to August 7.

Below is the enumerated list of the Court’s order.

1. Trial courts may adjourn any civil matters and any criminal matters where the defendant is not in custody; where a criminal defendant is in custody, trial courts should expand the use of videoconferencing when the defendant consents;
2. In civil cases, trial courts should maximize the use of technology to enable and/or require parties to participate remotely. Any fees currently charged to allow parties to participate remotely should be waived;
3. Trial courts may reduce the number of cases set to be heard at any given time to limit the number of people gathered in entranceways, lobbies, corridors, or courtrooms;
4. Trial courts should maximize the use of technology to facilitate electronic filing and service to reduce the need for in-person filing and service;
5. Trial courts should, wherever possible, waive strict adherence to any adjournment rules or policies and administrative and procedural time requirements;
6. Trial courts should coordinate with the local probation departments to allow for discretion in the monitoring of probationers’ ability to comply with conditions without the need for amended orders of probation;
7. Trial courts should take any other reasonable measures to avoid exposing participants in court proceedings, court employees, and the general public to the COVID-19 virus;
8. In addition to giving consideration to other obligations imposed by law, trial courts are urged to take into careful consideration public health factors arising out of the present state of emergency: a) in making pretrial release decisions, including in determining any conditions of release, b) in determining any conditions of probation;
9. If a Chief Judge or the court’s funding unit decides to close the court building to the public, the Chief Judge shall provide SCAO with the court’s plan to continue to provide critical services, including handling emergency matters.

Read the full order here:

Michigan Supreme Court Administrative Order 2020-1 In Re Emergency Procedures in Court Facilities

Lex Fori PLLC and Carson J Tucker File Pro Bono Supreme Court Application for Disabled Veteran

In March 2020, Attorney Carson J. Tucker of Lex Fori PLLC filed another pro bono Supreme Court application in Michigan seeking to ensure that federally protected veterans’ disability benefits are used for the purpose that Congress intended, i.e., to support and provide for disabled veterans whose service to the United States resulted in their injuries. Congress has passed laws pursuant to its enumerated Military Powers in the Constitution providing veterans with benefits since the beginning of the republic. The federal statutes also affirmatively shield certain veterans’ benefits from any state court process and jurisdictionally prohibit any legal process from being used to take these benefits.

APPLICATION FOR LEAVE TO APPEAL

Part of Mr. Tucker’s practice is focused on providing pro bono and low bono legal representation to servicemembers and veterans throughout the country and abroad. It makes up about 30 to 40 percent of his law practice at any given time. As an appellate law expert admitted to the United States Supreme Court and other state courts and federal courts, Mr. Tucker also provides amicus curiae (friend of the court) briefs to various entities and organizations to protect their interests in cases addressing legal issues of significant importance to those organizations.

Subjective Good Faith Exception Established by Michigan Supreme Court in Odom v Wayne County Continues to Clearly Delineate Parameters of Liability for Law Enforcement Officers in Michigan

In a case brought to the Michigan Supreme Court by Carson J. Tucker in 2008, Odom v. Wayne County, a seminal (and essentially unanimous) decision and a lasting jurisprudential pillar of governmental tort liability law in Michigan, the Court interpreted the “subjective, good-faith” exception to intentional tort and gross-negligence claims found in Michigan’s Governmental Tort Liability Act (GTLA), MCL 691.1401, et seq.

Decades of uncertainty had surrounded the issues of the parameters of an individual law enforcement officer’s liability when he or she was performing the governmental function of enforcing the law. Odom clarified the scope of the so-called “intentional tort” exception to governmental immunity, the “gross negligence” exception in the GTLA, and the necessary burdens of proof to overcome the presumptive immunity granted to all individual governmental employees in Michigan.

As demonstrated by this March 3, 2020 Court of Appeals opinion, Mendoza v Robinson, et al, Odom’s protection of the discretionary actions and day-to-day decision making that law enforcement officers have to engage in is still protected by the well-established “subjective, good faith” exception.

This standard allows law enforcement officers to focus on the necessary tasks of serving and protecting the public. Establishing strong judicial precedent and clarifying the parameters of liability within which governmental employees must consider their day to day actions significantly reduced litigation and, more importantly, liability payouts by the government in the state of Michigan.

Lex Fori PLLC and Carson J. Tucker Successfully Pursue Attorney Fees on Appeal After Judgment for Widow of Veteran

I’ve already posted about this recent victory, but wanted to highlight one for the more detailed aspects of this case that arose from our aggressive stance in litigation and on appeals and our creativity in exploring all remedies for our clients at all times.

Michigan, as in most states, the courts follow the “American rule” when it comes to recovery of attorney’s fees in litigation. This means that generally both parties pay their own attorney fees. The exception in Michigan and some other jurisdictions is where attorney fees are allowed by statute, court rule, or agreement by and between the parties (think of an arbitration or dispute resolution clause or just a regular contract requiring one or another party to pick up the attorney’s fees in the event of dispute or breach, etc.).

Generally, even if there is a rule or statute, a party must move for attorney fees before the final judgment. In this particular case, exercising a will to win and be creative, we utilized a court rule that allows a defending party in a child custody / domestic relations matter to recover attorney fees and successfully convinced the Court of Appeals to remand to the trial court to hold a hearing on our client’s request even though the request was made in a post-judgment motion.

Interestingly enough, this exercise was undertaken when we were retained about a week before the motions for reconsideration were due in the trial court to try and reverse the entire direction of the proceedings, which had theretofore all been against our client.

The most satisfying part of this particular case is that we did it for the widow of a United States Army veteran who had committed suicide while on active duty. Anyone who follows me knows about 30 to 40 percent of my practice is representing military veterans (usually pro bono and low bono). As a veteran myself Navy 1989 – 2003, and a former JAG officer with the United States Army (2003 – 2016), I am keenly aware of the challenges and issues faced by our nation’s warriors and their families! I fight these legal battles like they fight for us on the front line! No mercy.

Read the opinion here: Martin v Cleveland-Martin