The Supreme Court issued a decision today, titled Selvig v. Blockbuster.  The case involves an alleged breach of a real estate purchase contract.  In footnote 8 of the dissent, the Supreme Court cites McKeon v. Crump.  That’s a 2002 case in which I was involved as the attorney for the McKeons.

I’m still sore about that case because I lost it and I didn’t think I should. Sometimes, as an attorney, you’ve got a case that you know is tough but you’ve got a shot.  If you win it, you feel great.  If you lose it, you chalk it up as a loss that your probably deserved.  In McKeon v. Crump, that was not the case.  I thought I would win the whole thing.

What happened in that case was that I came in late.  Another attorney had already filed the complaint and started discovery.  When I got hired, I realized  that my clients had not elected the remedy.  Before filing suit, they were either supposed to return the earnest money.  If they didn’t return the earnest money, they weren’t allowed to file suit.  They were considered to have “elected” their remedy, ie. forfeiture of the earnest money.

When I got hired, I realized that.  We went forward anyway.  One day, the opposing attorney called and wanted me to concede an issue in the case.  I told him I would if he would allow my client to return the earnest money and stipulate that the earnest money was returned timely.  He agreed.

At the close of trial, the opposing attorney argued that the earnest money had not been returned timely.  I argued that he had stipulated that it had.  The judge said that the timeliness of the return of the earnest money was not open to negotiation between the parties.  I said, “the requirement to return the earnest money was created by an agreement of the parties and therefore it could be waived by agreement of the parties.  The judge disagreed and my client lost at trial.

We appealed and lost again.

That case still smarts.  Opposing counsel made an agreement and then promptly breached it.  I still think my client should have won.