The Response to President Trump’s Shameless Religious Photo Op Gives Me Hope for the Future

MARCI A. HAMILTON

University of Pennsylvania professor Marci A. Hamilton praises the response of liberal clergy in response to President Trump’s seemingly opportunistic photo op in front of St. John’s Episcopal Church in Washington, D.C. Hamilton calls upon these religious leaders to continue speaking out loudly in the name of inclusion, love, and truth.

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Bonin v. Sabine River Authority of Louisiana

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-40299

Opinion Date: June 4, 2020

Judge: E. Grady Jolly

Areas of Law: Civil Procedure, Class Action, Real Estate & Property Law

The Sabine River meanders between Texas and Louisiana. Two state agencies jointly regulate its waterways and operate a hydroelectric plant--the Toledo Bend Reservoir and Toledo Bend Dam. In March 2016, heavy rains led to heavy water inflow into the reservoir and flooding of the River. The plaintiffs, about 300 Texas and Louisiana property owners, alleged that the flooding of their property was caused or exacerbated by the reservoir’s water level becoming too high and the spillway gates at the reservoir being intentionally opened. The defendants removed the case to federal court, which remanded back to Texas state court. The cases were removed again. The Texas federal district court denied a motion to remand but later dismissed all claims against private power companies and remanded the claims against the state authorities to state court. The Fifth Circuit affirmed. Federal jurisdiction obtained at the time of removal because the suit then qualified as a “mass action” under the Class Action Fairness Act (CAFA), 28 U.S.C. 1332(d)(11)(A); an exception for a local single event does not apply. CAFA mass actions “may be removed by any defendant without the consent of all defendants.” The court upheld the dismissals of the power companies based on findings that the plaintiffs did not adequately allege any violations of the FERC license; that under Texas law, only state authorities may be found liable for floodwater damage; and that the plaintiffs failed to show that the operation of the generators was a proximate cause of plaintiffs’ losses.

Stratta v. Harris

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-50994

Opinion Date: May 29, 2020

Judge: Edith Hollan Jones

Areas of Law: Civil Rights, Constitutional Law, Real Estate & Property Law

Plaintiffs filed suit under 42 U.S.C. 1983 alleging that BVGCD violated Plaintiff Fazzino's equal protection right and has taken his property without compensation, and that BVGCD violated Plaintiff Stratta's First Amendment right to free speech. The district court dismissed plaintiffs' claims on the grounds of Eleventh Amendment immunity, ripeness, Burford abstention, and qualified immunity.  The Fifth Circuit held that the district court erroneously concluded that BVGCD is an arm of the State of Texas and therefore immune from suit in federal court under the Eleventh Amendment. In this case, five of the six Clark factors weigh against finding BVGCD is an arm of the state of Texas where, most importantly, funds from the Texas treasury will not be used to satisfy a judgment against the entity. Furthermore, the Directors are likewise not entitled to assert such immunity. The court also held that Fazzino's takings claim is ripe for adjudication because Fazzino fully pursued the administrative remedies available to him before filing this action, and the district court abused its discretion in deciding to abstain under Burford. Finally, the court held that neither BVGCD nor its Board was required to respond on the merits, and thus the substance of these allegations must be tested in discovery and further proceedings. The court reversed the district court's Rule 12(b)(6) dismissal as to all defendants and remanded. However, the court affirmed the district court's judgment dismissing Stratta's First Amendment claims.

Caquelin v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1385

Opinion Date: May 29, 2020

Judge: Richard Gary Taranto

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Transportation Law, Zoning, Planning & Land Use

Caquelin's land was subject to a railroad easement. The Surface Transportation Board granted the railroad permission to abandon the line unless the process (16 U.S.C. 1247(d)) for considering the use of the easement for a public recreational trail was invoked. That process was invoked. The Board issued a Notice of Interim Trail Use or Abandonment (NITU), preventing effectuation of the abandonment approval and blocking the ending of the easement for 180 days, during which the railroad could try to reach an agreement with two entities that expressed interest in the easement for trail use. The NITU expired without such an agreement. The railroad completed its abandonment three months later. Caquelin sued, alleging that a taking occurred when the government, by issuing the NITU, prevented the termination of the easement during the 180-day period. Following a remand, the Claims Court again held that a taking had occurred. The Federal Circuit affirmed, rejecting the contention that the multi-factor approach adopted for government-created flooding in the Supreme Court’s 2012 “Arkansas Game” decision displaced the categorical-taking analysis adopted in Federal Circuit precedents for a NITU that blocks termination of an easement. The categorical taking analysis is applicable even when that NITU expires without a trail-use agreement. A NITU does not effect a taking if, even without a NITU, the railroad would not have abandoned its line during the period of the NITU. Here, the evidence permits a finding that abandonment would have occurred during the NITU period if the NITU had not issued.

Owens v. City of Oakland Housing, Residential Rent & Relocation Board

Court: California Courts of Appeal

Docket: A157663(First Appellate District)

Opinion Date: May 29, 2020

Judge: Peter J. Siggins

Areas of Law: Landlord - Tenant, Real Estate & Property Law

Owens owns and resides in a single-family Oakland house. He rented individual rooms to three unrelated tenants. Tenant Barghout filed a petition under Oakland’s Rent Adjustment Program alleging her housing became unsuitable due to disruptive construction work and hazardous conditions and that Owens failed to provide the required notice of the Rent Adjustment Program and retaliated by terminating her lease when she complained and sought a reduction in rent. Owens filed an unlawful detainer complaint, identifying Barghout as a month-to-month housemate with “sole use of one or more rooms and shared use of common areas.” A hearing officer rejected an argument that Barghout’s rental was not subject to the Ordinance because the rooms she rented were in a single-family home that was “alienable, separate from the title of any other dwelling unit,” exempt under the Costa-Hawkins Act from local rent control. The Rent Board, trial court, and court of appeal affirmed. The term “dwelling unit” has different meanings under building and planning codes and rent control ordinances. Under landlord-tenant law, “a dwelling or a unit” is not the entire property to which an owner holds title; it is any area understood to be committed to the habitation of a given tenant or tenants to the exclusion of others. The relevant dwelling unit is not Owens’s home but each of the rooms he rented to tenants.

River Ridge Development Authority v. Outfront Media, LLC

Court: Supreme Court of Indiana

Docket: 19S-PL-645

Opinion Date: May 29, 2020

Judge: Loretta H. Rush

Areas of Law: Construction Law, Real Estate & Property Law

The Supreme Court reversed the decision of the trial court awarding attorney's fees to Defendants in this dispute over the proposed construction of seven billboards, holding that the trial court's decision to award attorney's fees was an abuse of discretion. River Ridge Development Authority (RRDA) sued Defendants seeking a declaration that seven billboards that were set to be constructed near the planned entrance of RRDA's $25 million expansion to The River Ridge Commerce Center violated the Town of Utica's zoning ordinance. During the litigation, the relevant portion of the road along which the billboards were to be constructed was approved to become a scenic byway. Thereafter, RRDA voluntarily dismissed its complaint with prejudice. Defendants filed motions to recover attorney's fees, claiming that RRDA's behavior during litigation justified such an award. The trial court granted the motions in full. The Supreme Court reversed, holding (1) on the record, Defendants failed to show that any exception to the American Rule requiring each party to pay its own attorney's fees applied; and (2) therefore, the trial court abused its discretion in awarding attorney's fees.

Bigelow v. Massachusetts Courts Promulgator of Official Forms

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12794

Opinion Date: May 28, 2020

Judge: Per Curiam

Areas of Law: Landlord - Tenant, Real Estate & Property Law

The Supreme Judicial Court affirmed the judgment of the single justice of the court denying Plaintiffs' complaint for relief in the nature of mandamus and for extraordinary relief pursuant to Mass. Gen. Laws ch. 211, 3, holding that the single justice correctly denied relief on all of Plaintiffs' claims. Each plaintiff is or was a defendant in a post-foreclosure summary process action. After an adverse judgment, each plaintiff was required to post an appeal bond or to make periodic use and occupancy payments during the pendency of each plaintiff's summary process appeal. The appellate division affirmed the bond or use and occupancy order in each case. Plaintiffs then collectively filed this complaint for relief in the nature of mandamus and for extraordinary relief under Mass. Gen. Laws ch. 211, 3 seeking relief from the bond and use and occupancy orders. The single justice denied all substantive relief sought. The Supreme Judicial Court affirmed, holding that Plaintiffs did not demonstrate the absence of an adequate and effective alternative remedy.

Estate of Sande

Court: North Dakota Supreme Court

Citation: 2020 ND 125

Opinion Date: June 2, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure, Real Estate & Property Law, Trusts & Estates

Fred Sande, the personal representative of the Estate of Geraldine Sande, appealed a judgment distributing the estate. Geraldine Sande and her son, Philip Sande, owned Sande Music Company, a partnership. Geraldine owned 55 percent of the partnership and Philip owned the remaining 45 percent. In March 2010, Geraldine and Philip sold the company for $800,000, of which $600,000 was paid shortly after the sale and the remaining amount was to be paid in installments. Philip executed a promissory note in the amount of $55,000 in favor of Geraldine. Philip died on August 17, 2014, and his wife, Paulette Sande, was appointed the personal representative of his estate. Fred filed an inventory and appraisement of Geraldine's estate, which included real property, Geraldine's share of Sande Music sale proceeds, the $55,000 promissory note from Philip, and other assets. Philip objected to the inventory and appraisement, demanded an accounting of Geraldine's Estate, and requested the immediate return of any Estate assets. Philip alleged the Estate’s real property was undervalued, Fred removed assets from the real property, Fred conveyed real property to himself, and deprived Philip of his interest in the property, and alleged Fred failed to pay rent for use of the Estate's property while conducting business there. Philip also claimed that the value of the promissory note did not reflect payments that had been made and that there were no assets from the sale of Sande Music at the time of Geraldine's death. The North Dakota Supreme Court concluded the evidence supported the district court’s findings, the court’s finding that Fred breached his fiduciary duty was not clearly erroneous, and the court did not abuse its discretion by denying Fred's request for personal representative’s fees and attorney’s fees.

In re William E. Paplauskas, Jr.

Court: Rhode Island Supreme Court

Docket: 18-161

Opinion Date: May 29, 2020

Judge: Per Curiam

Areas of Law: Business Law, Legal Ethics, Real Estate & Property Law

The Supreme Court answered in this case in what situations a non-attorney who performs one or more of the various services that are associated with a real estate transaction is engaging in the unauthorized practice of law. The Unauthorized Practice of Law Committee transmitted three reports to the Supreme Court concluding that Respondents had engaged in the unauthorized practice of law by engaging in several aspects of residential real estate transactions that constitute the practice of law. The Supreme Court declined to adopt the Committee's recommendations in part and accepted them in part, holding (1) title insurance companies and their agencies do not engage in the unauthorized practice of law when they conduct a residential real estate closing, draft a residency affidavit, and draft a limited durable power of attorney when those activities are carried out in connection with the issuance of title insurance; (2) a title insurance company by conduct the examination of title for marketability only if a licensed attorney conducts the examination; and (3) drafting a deed constitutes the practice of law and that an attorney is required to either draft the deed or review it after its has been prepared.

Woel v. Christiana Trust

Court: Rhode Island Supreme Court

Docket: 18-347

Opinion Date: June 2, 2020

Judge: Maureen McKenna Goldberg

Areas of Law: Real Estate & Property Law

The Supreme Court vacated the order of the superior court dismissing Plaintiff's complaint against Defendants and declaring that a foreclosure sale of Plaintiff's property was valid, holding that the foreclosure sale was void because the notice of default sent to Plaintiff failed to comply with the terms of the mortgage. In 2007, Plaintiff purchased property and granted a mortgage on the property to secure a loan. In 2014, Plaintiff became delinquent on the mortgage. The mortgagee sent a notice of default and intent to accelerate to Plaintiff. After Plaintiff failed to cure the default, Plaintiff's property was sold at foreclosure sale. Plaintiff filed suit, alleging that the default notice was deficient and thus the foreclosure sale was void. After Defendants' motion for summary judgment was denied, Defendants sought declaratory relief seeking a declaration that the default notice sent to Plaintiff complied with the terms of the mortgage. The trial justice ruled in favor of Defendants. An order then entered dismissing Plaintiff's complaint and declaring the foreclosure sale valid. The Supreme Court vacated the order of the superior court, holding that the default notice failed strictly to comply with the terms of the mortgage, and therefore, Defendants failed to satisfy the condition precedent to a valid foreclosure.

Mackey v. McDannald

Court: Supreme Court of Virginia

Docket: 190671

Opinion Date: May 28, 2020

Judge: William C. Mims

Areas of Law: Real Estate & Property Law, Trusts & Estates

The Supreme Court held that an obstructive act committed before the accrual of a cause of action tolls the statute of limitations under Va. Code 8.01-229(D) regardless of whether the cause of action has accrued at the time of the obstructive act. After Nelson Mackey left a law firm, the remaining partners - Griffith Dodson, Richard Pence, and Richard Viar - formed another partnership. Pence, Dodson, and Viar subsequently passed away. Mackey told Michael Quinn, who helped Joyce Viar with tax matters regarding Richard's estate, that certain stock that the former partnership owned had no financial interest to Mrs. Viar. Therefore, the estate did not attempt to collect the stock. Mackey subsequently sold the stock. When the three estates learned of the stock's existence and Mackey's actions, they sued Mackey alleging conversion of the stock. The trial court concluded that Mackey converted the stock, that section 8.01-229(D) tolled the limitations period, and that the tolling applied to all of the estates. The Supreme Court held (1) Mackey's representation to Quinn was sufficient to toll the statute of limitations as to Mrs. Via; but (2) because Mackey demonstrated no obstructive intent as to the Dodson or Pence estates, section 8.01-229(D) did not toll the limitations period for their claims.