“This cannot be right.”
The incredulous reaction of U.S. District Court Judge Jack Zouhary, sitting by designation on 6th U.S. Circuit Court of Appeals, to a decidedly unusual order of events in Dillon v. Cobra Power Corp., et al.
Cobra made speedboat engines. Dillon had two of them in the boat she bought from Cumberland Marine. Dillon claimed the engines gave her lots of problems. She sued Cobra and Cumberland. Cobra’s president, Garciga, got his company out of the suit on summary judgment with an affidavit stating that there was no warranty on the engines.
Dillon took Cumberland to trial. Garciga took the stand and apparently contradicted his earlier statement about the lack of a warranty.
That was all the federal district judge needed to hear. In a series of post-trial rulings, summary judgment for Cobra was reversed, Dillon was granted summary judgment against Cobra and the judge hit Cobra with a $50,400 judgment.
All of this happened based on Garciga’s testimony and without Cobra being brought back into the suit.
As Judge Zouhary put it:
Federal Civil Rule 56 makes clear that summary judgment is a pretrial procedure. The district court correctly noted that trial testimony may be submitted for consideration at the summary judgment stage, but such testimony comes from prior proceedings that are submitted as part of the pretrial record. In other words, sworn testimony given in earlier court proceedings is the same as “the pleadings, the discovery [including depositions] and disclosure materials on file, and any affidavits” which Rule 56(c) expressly allows the court to consider. Here, Garciga’s testimony was produced at trial in the very case for which summary judgment was decided, long after the pretrial process had come to an end. This is not the type of evidence on which a court may base summary judgment. …
[T]he post-trial order … reversing the earlier summary judgment order – a pretrial order – was decided by a motion filed after trial and based solely on Garciga’s trial testimony. This cannot be right.
What would have been right, according to Judge Zouhary
would have been to adjourn the trial, join Cobra again as a party defendant, and allow it an opportunity to respond to the new testimony.
Participation at trial as a party may well have prevented any prejudice by such a late reversal of summary judgment.
Dillon will get another shot at Cobra on remand.
The Michigan Lawyer 
There is a rather interesting story brewing that sites a few attorneys who specialize in trust and estate law. It appears that these legal eagles though very zealous in their proceedings, have not only been somewhat, negligent, compromising, and as well attempting to enforce, and regulate outside of the scope of their appointed duties. There often appears to be a fine line between acceptable legal procedures as it relates to these cases and grandstanding for personal reasons. The law community though tight knit may sometimes be uninformed of cases that are outside of the individual’s particular scope or legal specialty. An interesting example is Attorney Lauren Underwood who by all accounts has made a name for herself and has achieved a degree of notoriety. As it relates to a soon to be released news article, one has to be amused that Ms. Underwood agitated a Detroit probate judge to the point of seething anger when she and her client Elaine Steele created a public outrage with the mishandling of “The Rosa Parks Institute”, and the mother of the civil rights movement estate. With this being a high profile case, it would appear that anyone representing the interest of the parties, would proceed with caution and gather all the facts. As an attorney you have to wonder, were it the publicity of handling the case, or was it the possible financial gain that attracted Ms. Underwood. At any juncture the judge made the following statement on the record “I‘m not going to tolerate it anymore. It does no good to the memory or legacy of Rosa Parks, and I’m not going to have it.”
Because of the nature of this case, it does arouse curiosity as to what other estate cases Ms. Underwood was involved in that did not proceed in an orderly fashion. The interesting situation that comes up next is the demise of her partnership with Walter Marsh which ended according to documents with a tone of ugliness and selfishness. Looking further Ms. Underwood has been involved in a series of cases that while in process; she has been recruited to oversee the trust or estate but expanded her limited authority beyond the scope of the duties required. On several occasions she has replaced a trustee or a former trustee only to have the former trustee’s who have overseen the trust, petition the court as with Patricia Duke to receive payment. The question here is,” isn’t this costing the trust more money? “Who then really benefits from this? In recent weeks she has now become involved in yet another high profile trust case with the Adell Trust. A family trust not as prestigious as Rosa Parks Trust, but one that she apparently has a personal interest in. In reading the petition filed on June 12th 2009, one gets the impression that once again there will be a great deal of confusion, mixed messages, high handed and uneven treatment to existing trustee. There are yet other cases, but the instances cited stand out.
When did it become the practice to divide and conquer a family or an institution that is disputing a trust and an estate? Isn’t the job to clearly execute the wishes of the benefactor? Not too long ago I was reporting in a court room when the judge became outraged at the fees the fiduciary and attorneys were charging the estate. Again you have to ask the question, what is the motive for the involvement in these cases? Is it a genuine desire to serve, or is it the power over someone else’s affairs? Is it being seen as someone that only handles high profile estates? Does any of this benefit the wishes of those who have passed on and have provided as they saw fit for their friends, organizations and loved ones after death?