[00:00:00] Speaker 04:
We'll call case number 24, 5036, Shires versus Metropolitan Property and Casualty Insurance Company.

[00:00:14] Speaker 05:
Your Honors, before we start, I just want to make sure the appeal as to Sedgwick and Veritas was dismissed and so counsel for that.

[00:00:25] Speaker 05:
entity wanted me to just confirm.

[00:00:27] Speaker 05:
Right.

[00:00:27] Speaker 04:
We did receive that notice this morning.

[00:00:29] Speaker 04:
Thank you.

[00:00:29] Speaker 04:
I should have pointed that out.

[00:00:31] Speaker 04:
I apologize.

[00:00:32] Speaker 04:
We did receive that.

[00:00:33] Speaker 04:
Thank you.

[00:00:36] Speaker 02:
Andy cares enough he's going to stay and watch, right?

[00:00:45] Speaker 03:
So you didn't pull that microphone down far enough.

[00:00:48] Speaker 05:
Sorry.

[00:00:49] Speaker 05:
My apologies.

[00:00:51] Speaker 05:
This appeal arises out of what we contend to be an abuse of discretion by the trial court in its granting of summary judgment to both MetLife and John Brown Insurance Agency.

[00:01:03] Speaker 05:
I think because of a lot of the verbiage that's devoted in the order granting summary judgment to the factual allegations that were or were not pled, a good place to start is with the amended complaint that was filed in Oklahoma State Court prior to removal.

[00:01:22] Speaker 03:
Can I just prelude or ask you, was Turner's evidence preserved before he died?

[00:01:33] Speaker 03:
Is it preserved in any way?

[00:01:36] Speaker 03:
Can Turner testify from the grave?

[00:01:39] Speaker 05:
Well, he came through his deposition testimony.

[00:01:41] Speaker 05:
We do have his deposition.

[00:01:44] Speaker 05:
Absolutely, absolutely.

[00:01:48] Speaker 05:
And so when you look at the amended petition and what was alleged, starting with a statement of fact.

[00:01:52] Speaker 04:
Can I ask you to back up and talk about appellate jurisdiction briefly?

[00:01:56] Speaker 04:
Because we still have pending motion to substitute.

[00:02:00] Speaker 04:
It was provisionally granted.

[00:02:02] Speaker 04:
Absolutely.

[00:02:03] Speaker 04:
And that's been challenged.

[00:02:05] Speaker 04:
So I guess I have a couple of questions on that.

[00:02:09] Speaker 04:
One is Mr. Turner died in December of 2023.

[00:02:16] Speaker 04:
Correct.

[00:02:18] Speaker 04:
The court entered summary judgment on some of the claims in February of 2023.

[00:02:23] Speaker 04:
Is that right?

[00:02:25] Speaker 04:
I believe it was March 2024.

[00:02:27] Speaker 04:
2024, I apologize.

[00:02:28] Speaker 04:
Correct.

[00:02:29] Speaker 04:
And then, March 1st of 2024, denied a motion for reconsideration that was filed.

[00:02:39] Speaker 04:
And then, ultimately, you filed a notice of appeal

[00:02:44] Speaker 04:
On March 29th, 2024, three months after his death, how did you do that without his approval?

[00:02:52] Speaker 05:
Well, we had discussed prior to this.

[00:02:55] Speaker 05:
First of all, when the appeal was filed, I didn't know he'd passed away.

[00:02:58] Speaker 04:
We had discussed- Don't you have to get approval from your client to appeal?

[00:03:02] Speaker 05:
I did before the order ever even came out.

[00:03:06] Speaker 04:
We discussed on numerous occasions how- Okay, so before he died,

[00:03:14] Speaker 05:
We discussed that if anything went south on the claim, it was going to be appealed.

[00:03:21] Speaker 04:
Wouldn't you think you would have contacted your client after the judgment and said, hey, got this decision and I think we should appeal?

[00:03:29] Speaker 04:
Was there not an attempt to contact the client?

[00:03:32] Speaker 05:
No, there wasn't because it had already been discussed.

[00:03:34] Speaker 05:
And when I take a case like this, I make it very clear that we're not done until the last court tells us we're done.

[00:03:40] Speaker 04:
Well, none of that's in the record.

[00:03:42] Speaker 04:
I'm just curious as to how you would have managed to get through not only the judgment, but the notice of appeal.

[00:03:49] Speaker 04:
I don't think it's any different than the... And several months into this court, and finally have to be told by the insurance company that your client had died months before.

[00:03:58] Speaker 05:
Well, this case was pending for six years.

[00:04:01] Speaker 04:
We waited year after year after year.

[00:04:03] Speaker 04:
That's not my question.

[00:04:04] Speaker 04:
I'm wondering.

[00:04:04] Speaker 04:
And we have rules that require that you substitute a party for a reason.

[00:04:12] Speaker 04:
And the idea is that we need to know that the parties intend to be the appeal.

[00:04:20] Speaker 04:
And how do we have any knowledge as to whether he intended this appeal?

[00:04:27] Speaker 05:
Well, it's an asset of his estate.

[00:04:29] Speaker 05:
The estate intends to appeal it.

[00:04:31] Speaker 05:
It's no different than the Slade Court.

[00:04:34] Speaker 05:
It's no different than the ruling by the Slade Court.

[00:04:36] Speaker 04:
In any event, it didn't comply with any of our rules.

[00:04:39] Speaker 04:
You didn't comply with any of our rules.

[00:04:41] Speaker 05:
Well, how do I know, if I don't know he's passed away, how do I know that it needs to be styled that way?

[00:04:46] Speaker 04:
Well, I guess normally somebody would be communicating with their client once they got a judgment in the district court and found out their client had died.

[00:04:54] Speaker 05:
Well, I think that's taking more form over substance when it comes to the basis of the appeal.

[00:05:03] Speaker 04:
So again, you didn't indicate this in the record, but are you suggesting you didn't know until you were informed by the insured several months into this appeal that your client had ceased before the district court ever entered judgment?

[00:05:18] Speaker 05:
Right.

[00:05:23] Speaker 04:
I just wanted to get the facts straight.

[00:05:28] Speaker 05:
And again, I think it's almost identical to what happened with the Slade Court.

[00:05:33] Speaker 05:
And the 10th Circuit ruled that the four months was more than permissible and allowed substitution.

[00:05:44] Speaker 04:
Is that the same facts as this case?

[00:05:46] Speaker 05:
I think it is.

[00:05:47] Speaker 04:
Was counsel not aware until they were advised by the insurance company?

[00:05:55] Speaker 04:
And did the individual die before the district court judgment ever was ensured?

[00:06:01] Speaker 05:
Yes, the individual died before the district court.

[00:06:03] Speaker 05:
In her judgment, the appeal was filed in his name.

[00:06:07] Speaker 05:
Subsequent to that, the attorney found out that he had passed away and then came back and substituted the PR, I believe it was, on behalf of the deceased.

[00:06:21] Speaker 05:
And the 10th Circuit took no issue with the way that it transpired.

[00:06:27] Speaker 04:
The only difference is here it transpired that it was

[00:06:31] Speaker 04:
the appellate who filed a notice of death.

[00:06:34] Speaker 05:
Well, and that's what happened with the Slade Court too.

[00:06:36] Speaker 04:
Okay.

[00:06:37] Speaker 04:
Okay.

[00:06:39] Speaker 04:
And so... So your position is it's the same facts as Slade?

[00:06:42] Speaker 05:
Absolutely.

[00:06:43] Speaker 05:
Okay.

[00:06:46] Speaker 05:
I've got a lot of ground to cover.

[00:06:48] Speaker 03:
I'm going to start with... Let me help you start where I'm curious.

[00:06:54] Speaker 03:
And that is this change from the admitted complaint to your response to the summary judgment.

[00:07:04] Speaker 03:
As I understand it, the explanation of that change was what was discovered, what came out in discovery.

[00:07:12] Speaker 03:
Is that correct?

[00:07:14] Speaker 03:
No, I don't think that's correct.

[00:07:16] Speaker 03:
You said that in your brief, didn't you?

[00:07:19] Speaker 05:
I said there's additional evidence that was confirmed through discovery, but if you look at the allegations made in the amended petition... I'm talking about evidence.

[00:07:29] Speaker 03:
What was it that you discovered?

[00:07:33] Speaker 03:
Didn't you say that there was something in discovery that

[00:07:39] Speaker 03:
indicated that you should be taking a different approach in responding to the motion for summary judgment, then you took in the amended complaint.

[00:07:48] Speaker 05:
And I think that had to do with the Sedgwick and Veritas claims that had been dismissed.

[00:07:54] Speaker 05:
As to MetLife, the allegations from day one was that there was an unreasonable delay of payment of the benefits and an unreasonable delay as to the investigation of the claim.

[00:08:05] Speaker 05:
That was

[00:08:06] Speaker 05:
We got more detail of that through discovery.

[00:08:10] Speaker 05:
But if you look at the allegations... So why didn't you amend the complaint?

[00:08:17] Speaker 05:
Because I didn't need to.

[00:08:18] Speaker 05:
It's already in here.

[00:08:20] Speaker 05:
If you look at paragraph 11, at the time of the covered loss, plaintiffs had in place a policy of business insurance written by defendant Medlife.

[00:08:30] Speaker 05:
Said policy provides coverage for the damages the plaintiff's property.

[00:08:33] Speaker 05:
That property from paragraph 10

[00:08:36] Speaker 05:
included the building, its contents, the business's necessary equipment, tools, and important business papers.

[00:08:43] Speaker 05:
It's all right there.

[00:08:44] Speaker 05:
It didn't need to be amended.

[00:08:47] Speaker 03:
And the findings from... Where did it say that the...

[00:08:52] Speaker 03:
contract of insurance should be changed so that it covers complete replacement costs rather than a limitation to $100,000.

[00:09:03] Speaker 03:
Under the reformation.

[00:09:05] Speaker 05:
And I think I know why your honor is going where he's going.

[00:09:10] Speaker 05:
I think that was not argued clearly.

[00:09:15] Speaker 05:
I think the request for the refration based on the constructive fraud goes to the breach of the duty.

[00:09:22] Speaker 03:
Okay, so you discovered this all of a sudden.

[00:09:24] Speaker 03:
Well, it's not pleaded very well.

[00:09:26] Speaker 03:
Shouldn't I seek to file a second amended complaint?

[00:09:31] Speaker 03:
But it is pled well.

[00:09:33] Speaker 05:
That's what I keep going back to.

[00:09:36] Speaker 05:
Well, I mean, if you look at the amended petition, it lays all of this out.

[00:09:40] Speaker 05:
Nothing has changed.

[00:09:42] Speaker 05:
Every type of coverage, although not specifically named, is mentioned.

[00:09:47] Speaker 03:
Does it say that replacement costs, unlimited, are either part of the contract or should be part of a reformed insurance contract?

[00:10:02] Speaker 05:
Yes.

[00:10:03] Speaker 03:
And in what paragraph?

[00:10:04] Speaker 05:
In paragraph 14.

[00:10:05] Speaker 05:
15.

[00:10:08] Speaker 05:
If you look at count two, under the reformation of the insurance policy, at the time of the agreement, MetLife's agent assured plaintiff... Okay, wait a minute.

[00:10:17] Speaker 03:
You said 14, 15.

[00:10:17] Speaker 05:
What are the paragraphs?

[00:10:19] Speaker 05:
Under count two, starting with paragraph 30, on paragraph 33, at the time of agreement, MetLife's agent assured plaintiff that the policy he purchased contained replacement cost coverage.

[00:10:32] Speaker 05:
It did.

[00:10:32] Speaker 03:
That doesn't address the problem we have.

[00:10:38] Speaker 03:
It was a replacement policy, but it was limited to $100,000.

[00:10:43] Speaker 05:
And that's not a replacement cost policy.

[00:10:46] Speaker 05:
Of course it is.

[00:10:48] Speaker 05:
It's not if the replacement cost is three times that.

[00:10:51] Speaker 05:
He was led to believe that the replacement cost is what they're calling a guaranteed replacement cost.

[00:10:56] Speaker 04:
There's a phone call between these two recorded ahead of the, you know, while they're in the agreement process, where the agent talks about it being $100,000 replacement cost, which she calculated based on his materials he provided, $50-some thousand dollars being the value.

[00:11:16] Speaker 04:
And that's what she refers to it as.

[00:11:19] Speaker 04:
And she sends him an offer with the $100,000 replacement cost limits.

[00:11:24] Speaker 04:
And he says OK to all this.

[00:11:26] Speaker 05:
And that comment was made.

[00:11:28] Speaker 04:
That's all there.

[00:11:30] Speaker 05:
But it's not being read in context.

[00:11:32] Speaker 05:
If you read it in the context of the finding of the Oklahoma Insurance Department, those are statements, misrepresentations made based on the value of the note.

[00:11:43] Speaker 05:
He was led to believe that there was additional coverage to replace the building.

[00:11:52] Speaker 03:
Was he asked in his deposition anything about this unlimited replacement cost concept?

[00:12:00] Speaker 05:
He was asked about this guaranteed replacement cost term.

[00:12:07] Speaker 05:
And his testimony was that in light of the

[00:12:11] Speaker 05:
representations made by the unlicensed commercial insurance adjuster that he was led to believe that that was over and above the $100,000 limit that had been placed on the structure before the renovation.

[00:12:29] Speaker 05:
It's clear from all of the evidence that both he and Maria Dosa, neither one of them, understood completely what type of replacement cost coverage there was.

[00:12:40] Speaker 03:
Is his deposition in our record?

[00:12:42] Speaker 05:
Yes, sir.

[00:12:44] Speaker 02:
Absolutely.

[00:12:45] Speaker 02:
Do you agree that your reformation claim, whether you want to base it on mistake or some type of fraud theory, has to be pled with particularity?

[00:12:56] Speaker 05:
I think it depends on if it's a constructive fraud or whether it's an actual fraud claim.

[00:13:02] Speaker 05:
Actual fraud does have to be pled with particularity.

[00:13:05] Speaker 05:
A constructive fraud claim that doesn't require any type of animus or intent does not have to be.

[00:13:13] Speaker 05:
And if you look at the gentry holding from the Oklahoma Supreme Court, in that case, the adjuster told the insured

[00:13:23] Speaker 05:
that theft was covered, they'd come to find out embezzlement was excluded.

[00:13:28] Speaker 05:
Even though the finding from the court was that there was no evidence that it was an intentional misrepresentation, the fact of the matter was it was a misrepresentation that they both relied on.

[00:13:39] Speaker 05:
And that gave grounds for the reformation.

[00:13:44] Speaker 03:
So are you saying the agreement that preceded the insurance policy,

[00:13:51] Speaker 03:
for purposes of meeting the requirements of reformation was between this person at the agency?

[00:14:00] Speaker 05:
Correct.

[00:14:02] Speaker 05:
The commercial adjuster or the commercial agent who under Oklahoma law binds met life.

[00:14:10] Speaker 03:
And you say that she agreed then that the coverage would be

[00:14:21] Speaker 05:
unlimited.

[00:14:23] Speaker 05:
That's what Mr. Turner's testimony was.

[00:14:26] Speaker 05:
She's AWOL.

[00:14:27] Speaker 05:
No one's been able to find her, but in her subsequent recordings and emails after the fact, after the loss, she tells Mr. Turner, I've never heard of this type of replacement cost coverage that limits

[00:14:41] Speaker 05:
that limits to that $100,000 amount.

[00:14:46] Speaker 05:
I don't know what they're talking about.

[00:14:47] Speaker 05:
They must be wrong.

[00:14:48] Speaker 04:
The problem you have is that she said something different in the recorded calls ahead of time.

[00:14:54] Speaker 04:
And when you're looking at reformation, you've got to have clear and convincing evidence.

[00:14:58] Speaker 04:
And we can't ignore all those recorded calls.

[00:15:02] Speaker 04:
We can't ignore the email that spelled out on its face.

[00:15:05] Speaker 04:
Replacement costs up to $100,000.

[00:15:08] Speaker 04:
He accepted.

[00:15:09] Speaker 04:
You can't ignore the call where she said you've got replacement costs up to $100,000, even if she later says to him in a call four months after he's been paid, hey, I think you had full replacement costs.

[00:15:23] Speaker 04:
That turns out to be wrong.

[00:15:25] Speaker 04:
What you have is inconsistent evidence.

[00:15:29] Speaker 04:
And what you need to have for reformation is clear and convincing evidence.

[00:15:33] Speaker 04:
And that's why Judge Broom said, even if you could amend the petition,

[00:15:39] Speaker 04:
to properly seek reformation, it would be futile because there's no clear and convincing evidence here that that was ever the agreement.

[00:15:50] Speaker 04:
In that, I'd like you to address what is clear and convincing about the evidence.

[00:15:55] Speaker 04:
How was Judge Broom's wrong about that?

[00:16:00] Speaker 05:
The clear and convincing evidence based on all the facts that were submitted was that these two individuals had a much different idea of what was being agreed to and what was being sold and purchased than what he in fact got.

[00:16:15] Speaker 04:
You're not addressing the inconsistent evidence.

[00:16:19] Speaker 04:
You're addressing what happened four months after the payment.

[00:16:23] Speaker 04:
You're not addressing the evidence of what they agreed to prior to the agreement, and you can't ignore that.

[00:16:29] Speaker 05:
And I'm not trying to ignore it, but you also have to understand and appreciate that not all the recordings were produced.

[00:16:35] Speaker 05:
Some of them were missing.

[00:16:36] Speaker 04:
You never produced any other recordings.

[00:16:38] Speaker 04:
There's no evidence that there were any other recordings, just your allegation that there could be.

[00:16:43] Speaker 05:
Well, there's evidence that other calls had occurred that no recordings were provided for.

[00:16:48] Speaker 04:
What we have is a recording where she says, you have $100,000 in replacement costs.

[00:16:58] Speaker 04:
And she's based that on figures she asked him for based on the value.

[00:17:03] Speaker 04:
And then you have an email going to him that says that very clearly.

[00:17:07] Speaker 04:
And then you have him accepting that.

[00:17:09] Speaker 04:
How is that evidence, when combined with the confusing phone calls that occurred after, how does that reach that clear and convincing threat?

[00:17:19] Speaker 04:
How do we get there?

[00:17:20] Speaker 05:
I don't know if you do, to be honest.

[00:17:24] Speaker 05:
that's not dispositive of the entire bad faith claim.

[00:17:27] Speaker 05:
There's lots more coverage that he had bought that was alleged he had bought, that wasn't paid, that was minimized.

[00:17:34] Speaker 05:
We've got situations where on February 13th, the day after the fire, the adjusters recognizing that the business property

[00:17:45] Speaker 05:
loss was due and payable for $25,000.

[00:17:48] Speaker 05:
It takes more than four months to get that check.

[00:17:50] Speaker 05:
The scissor lift, more than six months to get that check after it was determined to be owed and due.

[00:17:55] Speaker 05:
You've got a situation where the business interruption coverage

[00:18:00] Speaker 05:
They use the four lowest months out of the year to calculate his average income.

[00:18:06] Speaker 04:
Yeah, let's talk about that.

[00:18:07] Speaker 04:
Because the problem that the district court found on the business loss was that it's your burden of proof to show the loss, and you never did that.

[00:18:18] Speaker 04:
And all there is is, in your response brief, a paragraph saying, we disagree with how they calculated our loss.

[00:18:27] Speaker 04:
And then you drop a footnote coming up with a cap, you know, saying, we think it should be this, but with no citation to the record.

[00:18:35] Speaker 04:
And the district court said, that does not controvert the uncontroverted statement of fact.

[00:18:42] Speaker 04:
And so I need you to address what was in the record as to your view of what the loss was.

[00:18:51] Speaker 05:
The deposition, as far as what?

[00:18:53] Speaker 05:
I didn't hear that last part.

[00:18:54] Speaker 04:
The plaintiff's statement of loss.

[00:18:57] Speaker 05:
You had the deposition testimony of Hignite, the forensic accountant that performed the evaluation.

[00:19:05] Speaker 05:
You have her deposition testimony.

[00:19:06] Speaker 04:
And what did she say that the loss was for business?

[00:19:10] Speaker 05:
A little over $2,000 based on... Where did you cite to that?

[00:19:15] Speaker 04:
It's in the supplemental... Are you talking about the plaintiffs or the defense expert or the defense?

[00:19:19] Speaker 05:
No, it was a forensic accountant that met life contract... I understand that.

[00:19:24] Speaker 04:
I'm talking about where is your proof

[00:19:27] Speaker 04:
of what you say the loss was.

[00:19:30] Speaker 05:
It's in her testimony.

[00:19:31] Speaker 04:
If you look at the supplemental... In their expert's testimony?

[00:19:34] Speaker 05:
No, no, no.

[00:19:35] Speaker 05:
There was no... It doesn't involve an expert at all.

[00:19:39] Speaker 05:
It involves the deposition of their forensic accountant.

[00:19:42] Speaker 04:
Right, who came up with the loss figure.

[00:19:44] Speaker 04:
That's what they decided in summary judgment.

[00:19:45] Speaker 05:
And in her deposition testimony, that cited and made a part of the record.

[00:19:49] Speaker 05:
I think it's exhibit 35.

[00:19:50] Speaker 04:
I understand all that.

[00:19:51] Speaker 05:
I'm asking... She concedes it.

[00:19:55] Speaker 05:
The math work is discussed starting at page 59.

[00:19:59] Speaker 04:
The math work.

[00:20:00] Speaker 04:
That's what I'm trying to get to.

[00:20:02] Speaker 04:
What we have is a footnote in a response brief challenging

[00:20:07] Speaker 04:
the calculations that she made saying that she shouldn't have taken four months that she took and used those as the average.

[00:20:16] Speaker 04:
That's the argument.

[00:20:17] Speaker 04:
But there's nothing, and Judge Brubbs was very specific about this, there's nothing cited, there's no other calculation made, there's nothing where you say here is our statement of the loss and here's how we prove this loss and that it's different

[00:20:36] Speaker 04:
because, or it's this amount, because of, it's caused by the fire, which is your burden.

[00:20:44] Speaker 05:
Well, I don't necessarily agree with that.

[00:20:49] Speaker 05:
It's the burden of the insurance carrier.

[00:20:51] Speaker 05:
It's their duty.

[00:20:52] Speaker 05:
to come up with the correct numbers using correct formulations.

[00:20:56] Speaker 05:
She concedes that that didn't happen.

[00:20:58] Speaker 04:
And they proposed that.

[00:20:59] Speaker 04:
And I'm asking you, in your response brief, you disagree with their statement, but you don't cite to anything in the record that shows anything else.

[00:21:10] Speaker 05:
And I think the citation to Hignite's deposition testimony, where all of this was discussed, is absolutely part of the record and supports our contention there.

[00:21:23] Speaker 04:
Okay.

[00:21:25] Speaker 04:
Okay.

[00:21:25] Speaker 04:
I think I see your response.

[00:21:27] Speaker 04:
Thank you.

[00:21:28] Speaker 05:
Well, I'm way over time.

[00:21:29] Speaker 05:
There's a lot left, but I'm out of time.

[00:21:35] Speaker 01:
Good morning, Your Honors.

[00:21:36] Speaker 01:
My name is Allison Howard.

[00:21:37] Speaker 01:
I'm counsel for Appley Metropolitan Property and Casualty Insurance Company.

[00:21:42] Speaker 01:
I'll be splitting my time with co-counsel for Appley John Brown Insurance Agency.

[00:21:48] Speaker 01:
I've reserved nine minutes.

[00:21:50] Speaker 01:
Preliminarily,

[00:21:52] Speaker 01:
Metropolitan contends that the appellant has failed to secure this court's jurisdiction.

[00:21:57] Speaker 01:
And just to address briefly, the appellant suggested that the Slade case is on point.

[00:22:06] Speaker 01:
It is not.

[00:22:07] Speaker 01:
The Slade case did not address the jurisdictional issue before this court in that what was before the court was the issue of whether or not

[00:22:18] Speaker 01:
The counsel needed to file a motion to substitute at the district court level as opposed to in this court when the plaintiff had died prior to entry of judgment.

[00:22:29] Speaker 01:
The court did not address the issue before the court now, the jurisdictional issue, which is whether or not the notice of appeal is jurisdictionally defective because it does not name a live and proper appellant.

[00:22:42] Speaker 03:
This is what I understand.

[00:22:45] Speaker 03:
I just don't see the problem with Rule 37 and Rule 43A.

[00:22:57] Speaker 03:
We know who the appeal was intended for.

[00:22:59] Speaker 03:
I mean, there's one for Turner.

[00:23:02] Speaker 03:
And if Turner's not there, whoever his personal representative is.

[00:23:06] Speaker 03:
In some cases, you know, there's authorization for the lawyer to file a notice of appeal.

[00:23:15] Speaker 03:
Rule 43 indicates that there's no time limit, say it in Rule 43, when the death of the parties after the notice of appeal was filed.

[00:23:28] Speaker 03:
I just don't see how we lose jurisdiction under Rule 3 or 43.

[00:23:35] Speaker 03:
So if you can tell me, walk me through Rule 3 and 43 as to why we have no jurisdiction.

[00:23:42] Speaker 01:
Sure.

[00:23:43] Speaker 01:
Rule three, as the Supreme Court has stated, is a strict jurisdictional requirement that the party be named with specificity.

[00:23:51] Speaker 01:
And here, the party who was named in the notice of appeal was Mr. Turner.

[00:23:57] Speaker 01:
Yes.

[00:23:58] Speaker 01:
Okay.

[00:23:58] Speaker 01:
There is relaxation of that rule since 1991 to allow, as long as you can show that there was clearly objective intent that the person named was the person

[00:24:11] Speaker 03:
intended to be the appellant.

[00:24:17] Speaker 01:
This is where Rule 43A2 comes in, which would require the named appellant to be either his attorney or a personal representative.

[00:24:28] Speaker 01:
And the appellant who was named was not Mr. Turner's attorney.

[00:24:33] Speaker 01:
That's who should have been named if there wasn't a personal

[00:24:36] Speaker 01:
representative.

[00:24:37] Speaker 04:
But he says he didn't know.

[00:24:39] Speaker 04:
He says he didn't know his client had died before the judgment was ever entered.

[00:24:45] Speaker 04:
Sure.

[00:24:46] Speaker 04:
So how does that change the scenario?

[00:24:50] Speaker 04:
Under the rule, it doesn't seem to matter.

[00:24:54] Speaker 01:
Well, the rule again is a strict rule.

[00:24:57] Speaker 01:
And so if he's not named, he's not named.

[00:24:59] Speaker 01:
The fact that he didn't know is that his client had

[00:25:01] Speaker 01:
A deceased doesn't make any difference to a strict, if you're going to strictly apply that rule, what would have he should have done?

[00:25:08] Speaker 04:
If he doesn't know his client is deceased, how is he supposed to file it on his behalf, which is one option, and presumably indicate he's filing on behalf of his deceased client before an administrator is appointed?

[00:25:21] Speaker 04:
Or two, he has to move to substitute the estate.

[00:25:25] Speaker 01:
Sure.

[00:25:26] Speaker 01:
Well, he first of all should know.

[00:25:28] Speaker 04:
Well, that's a different question.

[00:25:30] Speaker 04:
does that make any difference?

[00:25:31] Speaker 04:
If he doesn't know, and he didn't know until you told him, how is it that he was supposed to?

[00:25:37] Speaker 01:
The fact he doesn't know I don't think makes any difference.

[00:25:41] Speaker 01:
I think the notice of appeal is strictly

[00:25:44] Speaker 01:
Applying rule three strictly as it should be it doesn't make any difference that he didn't know It I think it's jurisdictionally not think I believe and we contend that it's jurisdictionally defective because it doesn't specifically name alive and proper appellant and that appellant should have been knowledge because it says if before a notice of appeal is filed or you know that if the deceased has died the attorney is either going to temporarily

[00:26:12] Speaker 04:
bring the act, bring the notice, or we're going to have an administrator.

[00:26:16] Speaker 04:
That's what it says.

[00:26:17] Speaker 04:
So it assumes there's knowledge.

[00:26:19] Speaker 01:
Yes.

[00:26:20] Speaker 04:
You say it doesn't matter, but it assumes knowledge.

[00:26:22] Speaker 01:
That's what I mean by it doesn't matter is because it does presume knowledge.

[00:26:26] Speaker 04:
So if you don't have knowledge, how can the rule?

[00:26:30] Speaker 01:
Because knowledge is presumed, I guess is what I would say.

[00:26:33] Speaker 01:
So therefore, if it's presumed, then

[00:26:37] Speaker 01:
strictly applied, it's jurisdictionally defective.

[00:26:40] Speaker 01:
And then what happens is here he did gain knowledge and had an opportunity by the April 30th to seek an extension of the appeal deadline so that he might amend the notice to name a proper appellant.

[00:26:55] Speaker 01:
But that didn't happen.

[00:26:57] Speaker 04:
He says he didn't have knowledge until you informed him.

[00:27:01] Speaker 01:
Yes.

[00:27:02] Speaker 01:
Yes, that's what I'm saying.

[00:27:03] Speaker 01:
We gave notice on April 17th.

[00:27:05] Speaker 01:
He still had 30 days.

[00:27:07] Speaker 01:
after expiration of the appeal deadline to seek an extension of the appeal deadline, i.e.

[00:27:13] Speaker 01:
had until April 30th to do so, but did not.

[00:27:17] Speaker 01:
They could have sought an extension, amended the notice of appeal to name the attorney, even if they hadn't yet secured a personal representative, sought an extension of time in order to do that, and then filed a motion to substitute.

[00:27:33] Speaker 01:
That is our contention anyway, Metropolitan's contention.

[00:27:36] Speaker 01:
And again, Slade did not address this issue at all.

[00:27:41] Speaker 01:
In fact, the jurisdictional facts are not clear from Slade, but I'll defer to our rest on our briefs on that issue and move on to the merits.

[00:27:52] Speaker 03:
If I pick up the deposition of Mr. Turner and read it, how does that

[00:27:56] Speaker 03:
going to inform me as to the merits of this case and as to the claims in the amended complaint and the change of approach in responding to the summary judgment.

[00:28:14] Speaker 03:
How's that going to help me, the Turner deposition?

[00:28:16] Speaker 01:
Sure.

[00:28:17] Speaker 01:
As to Metropolitan, anyway, Mr. Turner does not actually allege

[00:28:22] Speaker 01:
that he was promised unlimited building coverage.

[00:28:24] Speaker 01:
He does not make that allegation, contrary to Palent's contention.

[00:28:29] Speaker 01:
What he alleges in his complaint is that he was promised building coverage that would evaluate loss at replacement cost value rather than actual cash value.

[00:28:40] Speaker 01:
Those are cost valuation methods, okay?

[00:28:43] Speaker 03:
And replacement... Okay, now make sure you distinguish between the amended complaint and his deposition.

[00:28:47] Speaker 03:
When you're telling me what is said.

[00:28:49] Speaker 01:
Sure.

[00:28:49] Speaker 01:
I'm going to, I'm getting there.

[00:28:51] Speaker 01:
I'm trying to, I have to lay the foundation before I tell you what happened.

[00:28:57] Speaker 01:
So yes, which is the operative complaint in that amended complaint.

[00:29:01] Speaker 01:
What he alleges is that he was promised.

[00:29:03] Speaker 01:
Replacement cost value versus actual cash value building coverage.

[00:29:08] Speaker 01:
And replacement cost value is the cost to replace covered property without deduction for depreciation.

[00:29:14] Speaker 01:
Actual cash value is the depreciated cost to replace covered property.

[00:29:18] Speaker 01:
So he's making a comparison between these cost valuation methods.

[00:29:21] Speaker 01:
And that comparison is the premise of all his claims against metropolitan relating to building coverage for reformation, breach of contract, and bad faith.

[00:29:33] Speaker 01:
What happened was, as he attested, he hadn't read the policy prior to making these allegations.

[00:29:39] Speaker 01:
And this is what came out in his deposition.

[00:29:41] Speaker 01:
He hadn't read it.

[00:29:42] Speaker 01:
He did subsequently concede, oh, the policy says what it says.

[00:29:47] Speaker 01:
And what the policy says is that billing loss is, in fact, evaluated based upon replacement cost value and not based upon actual cash value.

[00:29:57] Speaker 01:
And so at that point, he re-hauled his case.

[00:30:01] Speaker 01:
And contends now that what he was really promised was guaranteed coverage that he would get.

[00:30:09] Speaker 01:
But he's not saying this in his deposition?

[00:30:11] Speaker 01:
Or he is?

[00:30:13] Speaker 01:
At that point in his deposition, he does say that.

[00:30:16] Speaker 01:
Okay.

[00:30:17] Speaker 01:
He changed?

[00:30:18] Speaker 01:
Yes.

[00:30:19] Speaker 03:
In his deposition?

[00:30:20] Speaker 01:
In his deposition.

[00:30:21] Speaker 03:
So in the earlier part of the deposition, he has one position and then the later he has a different position.

[00:30:27] Speaker 01:
Well, he hadn't read the policy until his deposition.

[00:30:30] Speaker 01:
That's where we went over his policy and that's where he said, oh, okay.

[00:30:34] Speaker 01:
Well, really what I mean is that I was promised guaranteed, I was promised unlimited coverage of my building guaranteed to replace it without regard to cost.

[00:30:44] Speaker 01:
That's a very, very, that's incredibly different from his allegations.

[00:30:48] Speaker 01:
However, the complaint was not amended at that point.

[00:30:51] Speaker 01:
The amended complaint was not yet again, he didn't even move for leave to amend rather in response to metropolitan summary judgment motion.

[00:30:59] Speaker 01:
two years into the litigation, months after expiration of the scheduling order deadline.

[00:31:04] Speaker 01:
And on the eve of this close of discovery, he asked the court to amend his case for him under the guise of conforming the case to the evidence.

[00:31:11] Speaker 01:
And to be sure, I wanted to note though that this argument as to amendment has been waived.

[00:31:18] Speaker 01:
I mean, appellant did not

[00:31:20] Speaker 01:
set forth the applicable standard of review in his opening brief, or even argue in his opening brief, that the district court abused his discretion in denying leave to amend.

[00:31:32] Speaker 01:
So we would contend that that argument is waived, but even if it hasn't been waived, the district court acted well within its discretion in refusing to allow amendment under these circumstances.

[00:31:43] Speaker 01:
I mean, Mr. Turner didn't even move for leave to amend as required by Rule 15A2.

[00:31:48] Speaker 01:
More significantly, he didn't show good cause to amend after the scheduling order deadline as strictly required by Rule 16B4.

[00:31:59] Speaker 04:
So are you suggesting that by the time of his deposition, or at least during his deposition, he understood that paragraph 19 in what's the amended petition, we're calling it

[00:32:13] Speaker 04:
but it's actually a petition that was filed in the state court that what he said there wouldn't have been accurate, which is that MetLife paid plaintiff what it determined was the actual cash value of the building far less than the replacement value plaintiff was owed.

[00:32:29] Speaker 01:
Yes.

[00:32:30] Speaker 04:
So because he now understands that what he was paid was the $100,000 limit to replacement costs.

[00:32:38] Speaker 01:
That's correct.

[00:32:42] Speaker 01:
My time, I'm way over time.

[00:32:44] Speaker 01:
I apologize.

[00:32:45] Speaker 01:
If you don't have any other questions, I will pass to my co-counsel.

[00:32:50] Speaker 01:
Any other questions?

[00:32:55] Speaker 00:
No.

[00:32:55] Speaker 00:
Thank you, Your Honors.

[00:32:56] Speaker 00:
My name is John Steiner and I represent the defendant and appellee, John Brown Insurance Company, and I assure you the best has not been saved for last in this instance.

[00:33:06] Speaker 00:
My take on this case is slightly nuanced.

[00:33:09] Speaker 00:
It presents as an insurance dispute, but in my humble opinion, it's really a civil procedure question that is first and foremost before the court, as well as one of appellate jurisdiction.

[00:33:21] Speaker 00:
Taking the appellate jurisdiction issue first, I have a slightly different take on the situation.

[00:33:28] Speaker 00:
The appellants have made much of the fact that the Cervidone case from the Second Circuit made clear and I agree the text of Rule 43A2 does not contain a time limit on a motion to substitute.

[00:33:41] Speaker 00:
I think the question is

[00:33:44] Speaker 00:
more succinct than that.

[00:33:45] Speaker 00:
And that is, if you are going to file a motion to substitute that presupposes that at the initiation of the appeal, there was a proper appellant.

[00:33:55] Speaker 00:
And Rule 43A says, in the case of a deceased appellant who is deceased prior to the entry of the district court's judgment, there are two methods to do that.

[00:34:04] Speaker 00:
One is a personal representative can be named as the appellant.

[00:34:09] Speaker 00:
That did not occur in this case.

[00:34:11] Speaker 00:
The second is

[00:34:13] Speaker 00:
The attorney for the appellant can file the appeal, but that's what the difficult issue before the court is, is the text of 43A2 says that the attorney may file it, but it doesn't really go beyond that.

[00:34:26] Speaker 00:
In every case involving a representative appellant, the attorney files it.

[00:34:31] Speaker 00:
The question is, and in my view, the answer is,

[00:34:34] Speaker 00:
is that the attorney in so doing must note, whether using the term pendente lite, pending the appointment of a personal representative in a state court proceeding, or in some nature give clarity to the fact that the appellant is deceased.

[00:34:54] Speaker 00:
And therefore, there is a live... I was going to say that.

[00:34:57] Speaker 03:
And where in Rule 43A2 does it

[00:35:05] Speaker 03:
How is that a foundation for what you're saying now?

[00:35:08] Speaker 03:
You didn't say anything.

[00:35:08] Speaker 00:
That's the difficult.

[00:35:09] Speaker 00:
There are very little case law and the text simply says, I agree with you, Your Honor, the text simply says the attorney may file.

[00:35:18] Speaker 00:
And that is what we're here to try to figure out.

[00:35:21] Speaker 00:
Not based upon case law, there isn't any.

[00:35:24] Speaker 03:
The question.

[00:35:25] Speaker 03:
The attorney did file.

[00:35:26] Speaker 03:
He did file, but didn't know his client was dead.

[00:35:29] Speaker 00:
But I believe, Your Honor, that in a case in which

[00:35:34] Speaker 00:
an appellant has deceased three months prior to the entry of the judgment, there should have been some content.

[00:35:40] Speaker 03:
Frankly, from my standpoint, your time is better spent on other issues.

[00:35:43] Speaker 03:
But according to Rule 3C7, an appeal should not be dismissed for informality of form or title notice.

[00:35:56] Speaker 03:
It should be filed on behalf of the person intended.

[00:36:01] Speaker 03:
Who could possibly be intended other than the single plaintiff or the personal representative?

[00:36:08] Speaker 00:
Well, there couldn't have been...the personal representative wasn't named.

[00:36:11] Speaker 00:
Well, I understand that, but you know what I mean.

[00:36:12] Speaker 03:
Yes, I think... We have one person, one estate, and that is solely the source of an appeal, dead or alive.

[00:36:26] Speaker 00:
But I don't think he can appeal if he's dead.

[00:36:28] Speaker 00:
I think a jurisdictional issue is different than a fairness or what did he know or that sort of thing.

[00:36:34] Speaker 00:
But you're correct.

[00:36:35] Speaker 00:
I believe, as you do, that my time is better spent on the yesterday issue.

[00:36:39] Speaker 00:
My client was... Time's up.

[00:36:42] Speaker 00:
So there will be no time.

[00:36:43] Speaker 00:
Thank you, Your Honors.

[00:36:45] Speaker 04:
Thank you, Counsel.

[00:36:47] Speaker 04:
We appreciate the arguments.

[00:36:49] Speaker 04:
The case will be submitted and counsel are excused.

[00:36:53] Speaker 04:
And the court will be adjourned until tomorrow morning.

[00:36:56] Speaker 04:
They're in recess until tomorrow morning at 9 a.m.

[00:37:02] Speaker 04:
Thank you.