Latest 11 Cases This Week: Convent Corp. v. City of North Little Rock (Ark.), Cabatit v. Sunnova Energy Corporation (Cal. Ct. App.), Polo Golf & ...

No Good Men?

SHERRY F. COLB

Cornell law professor Sherry F. Colb comments on a film called “Promising Young Women,” which purports to be a feminist movie about date rape. While Professor Colb describes the movie as interesting, thought-provoking, and “definitely” worth seeing, she argues that it suggests a view of men and sexual assault that is erroneous and potentially even anti-feminist.

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Last Call at the Bar: Grading the Briefs in Trump Impeachment 2.0

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, offers thoughts on the legal tactics and briefs filed by each side in former President Trump’s second impeachment trial. Mr. Falvy argues that if Trump can survive a second impeachment vote, it will show that he is still operating where he has always believed himself to be: well beyond the reach of the law.

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Convent Corp. v. City of North Little Rock

Court: Arkansas Supreme Court

Citation: 2021 Ark. 7

Opinion Date: January 28, 2021

Judge: Hudson

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

The Supreme Court affirmed in part, reversed and remanded in part, and dismissed as moot in part the circuit court's order granting summary judgment in favor of the the City of North Little Rock, the City's mayor, certain City Council members, and other City officials and dismissing Plaintiff's action challenging the City's decision to condemn certain property, holding that some of Plaintiff's arguments on appeal were moot. Specifically, the Supreme Court held (1) Plaintiff's argument that the City Council proceeding did not contain any factual findings to support the condemnation and demolition of Plaintiff's property was moot; (2) there was no longer a justiciable controversy regarding Plaintiff's failure-to-exhaust argument, and therefore, the issue was moot; (3) summary judgment was properly granted to the City as to argument that the City's condemnation ordinance violated due process; (4) the circuit court did not err in granting summary judgment on the claim that the City's ordinance was unconstitutionally vague; and (5) the circuit court did not abuse its discretion in declining to grant Plaintiff's renewed motion to strike the City's amended answer and affirmative defenses.

Cabatit v. Sunnova Energy Corporation

Court: California Courts of Appeal

Docket: C089576(Third Appellate District)

Opinion Date: January 29, 2021

Judge: Louis Mauro

Areas of Law: Arbitration & Mediation, Real Estate & Property Law

Daniel and Indiana Cabatit entered into a solar power lease agreement (the agreement) with Sunnova Energy Corporation. After a solar power system was installed on the Cabatits’ residence, the Cabatits sued Sunnova, alleging damage to their roof. Sunnova moved to compel arbitration based on an arbitration clause in the agreement, but the trial court found the arbitration clause unconscionable and denied the motion. On appeal, Sunnova contended: (1) the arbitration clause required the Cabatits to submit to an arbitrator the question whether the clause was enforceable; (2) the trial court erred in finding the arbitration clause unconscionable, and (3) despite the trial court’s conclusion to the contrary, the rule announced in McGill v. Citibank, N.A. 2 Cal.5th 945 (2017), did not apply to the circumstances of this case. The Court of Appeal determined: (1) Sunnova did not raise at trial the issue of whether the arbitration clause was itself had to be decided by an arbitration, thus not addressed on appeal; (2) the arbitration clause was procedurally and substantively unconscionable and therefore unenforceable, and (3) the Court did not consider whether the McGill rule applied here because general considerations of unconscionability, independent of the McGill rule, supported the trial court’s determination. Thus, the Court affirmed the trial court's denial of Sunnova's motion to compel arbitration.

Polo Golf & Country Club Homeowners Association, Inc. v. Cunard et al.

Court: Supreme Court of Georgia

Docket: S20A1205

Opinion Date: February 1, 2021

Judge: Warren

Areas of Law: Civil Procedure, Government & Administrative Law, Real Estate & Property Law

At heart of this case was a dispute between the Polo Golf and Country Club Homeowners’ Association (the “HOA”) and Forsyth County, Georgia over the validity of Section 4.2.2 of Forsyth County’s Addendum to the Georgia Stormwater Management Manual, an ordinance that made HOAs “responsible for maintenance of all drainage easements and all stormwater facilities within the entire development.” The HOA argued Section 4.2.2 was unconstitutional and otherwise invalid, and that individual lot owners were responsible for maintaining stormwater infrastructure on their lots. Variants of this case have been litigated and appealed multiple times before other Georgia courts, including a 2019 appeal the Georgia Supreme Court. On remand from the Supreme Court's "Polo Golf II" decision, the trial court evaluated and rejected the HOA’s remaining claims that Section 4.2.2 was invalid because it required the HOA to trespass on the private property of homeowners, constituted involuntary servitude under the United States and Georgia Constitutions, and exceeded the scope of the ordinance that authorized Forsyth County to promulgate the Addendum. The trial court thus denied the HOA’s motion for summary judgment and granted the defendants’ cross-motion for summary judgment. The HOA appealed, and finding no reversible error, the Supreme Court affirmed.

Wilmington Savings Fund Society v. Ryan

Court: Supreme Court of Hawaii

Docket: SCWC-18-0000071

Opinion Date: January 14, 2021

Judge: Sabrina S. McKenna

Areas of Law: Real Estate & Property Law

In this foreclosure action, the Supreme Court vacated the judgment of the intermediate court of appeals (ICA) concluding that the circuit court did not abuse its discretion by denying Appellants' motion to extend time to file notice of appeal, holding that the circuit court abused its discretion by denying Appellants' appeal extension motion. On appeal, Appellants asserted that they were deprived of an opportunity to timely file a notice of appeal from the order denying foreclosure reconsideration because the circuit court staff provided incorrect information leading Appellants to believe that the thirty days to file the notice of appeal had not yet begun tolling. The ICA affirmed. The Supreme Court vacated the ICA's judgment, holding (1) Haw. R. App. P. 4(a)(4)(B) motions to extend time for filing a notice of appeal are not properly filed as ex parte motions; (2) under the circumstances of this case, Appellants' motion to advance the hearing on their HRAP Rule 4(a)(4)(B) hearing motion should have been granted; and (3) therefore, Appellants' notice of appeal was effective as to all issues on appeal over which the ICA had appellate jurisdiction based on Appellants' timely appeal of the circuit court's order denying reconsideration of the order granting summary judgment and foreclosure judgment.

Indiana Land Trust Co. v. XL Investment Properties, LLC

Court: Supreme Court of Indiana

Docket: 20S-MI-00062

Opinion Date: October 27, 2020

Judge: Steven H. David

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

The Supreme Court affirmed the judgment of the trial court denying Indiana Land Trust's motion to set aside a tax deed, holding that the LaPorte County Auditor gave adequate notice reasonably calculated to inform Indiana Land Trust Company of the impeding tax sale of the property. Taxes went unpaid on a vacant property from 2009 to 2015. The county auditor sent notice of an impending tax sale via certified letter and first-class mail to the notice listed on the deed for the property. The certified letter came back as undeliverable, and the first-class mail was not returned. Notice was eventually published in the local newspaper. The property sold, and a tax deed was issued to the purchaser. When the original owner learned of the sale it moved to set aside the tax deed due to insufficient notice. The trial court denied the motion. The Supreme Court affirmed, holding (1) the county auditor provided adequate notice and was not required to search its own internal records for a better tax sale notice address; and (2) the trial court properly denied Indiana Land Trust's motion to set aside the tax deed.

Thoden d/b/a ETC FBO Pierre H. Thoden IRA 47473 v. Hallford

Court: Supreme Court of Mississippi

Citation: 2019-CA-01159-SCT

Opinion Date: February 4, 2021

Judge: Chamberlin

Areas of Law: Government & Administrative Law, Real Estate & Property Law

A tax sale was found void due to the Jackson County, Mississippi Chancery Clerk's failure to comply with the notice requirements of Mississippi Code Section 27-43-3 (Rev. 2017). After Deborah Hallford came home to find that her locks had been changed, she went to the tax collector’s office and learned that the issue was delinquent property tax. Hallford had never received notice in person or through certified mail that the redemption period on her property was soon expiring. Hallford filed a complaint seeking to set aside the tax sale of her property to Pierre Thoden, d/b/a ETC FBO Pierre H. Thoden IRA 47473. The chancery court set aside the tax sale and awarded Thoden the amount he paid for the property at the tax sale, plus interest. Thoden, believing he was owed for the taxes he paid on the property in the years following his purchase at the tax sale and for the value of the improvements he made on the land, appealed. The Mississippi Supreme Court affirmed the chancellor’s decision to void the tax sale for lack of notice. This matter was remanded for a hearing on any damages, statutory and otherwise, to which Thoden was entitled.

Mack v. Anderson

Court: Montana Supreme Court

Citation: 2021 MT 25

Opinion Date: February 2, 2021

Judge: Laurie McKinnon

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

The Supreme Court affirmed the order of the Montana Water Court establishing the point of diversion for two claims owned by Carolyn Mack and Chriss Mack, holding that the Water Court did not err or abuse its discretion. Specifically, the Supreme Court held that the Water Court (1) did not err when it concluded that it had jurisdiction over the Macks' amended statement of claim; (2) did not abuse its discretion in concluding that the Macks did not make any judicial admissions in previous litigation; (3) did not err in assigning the burden of proof to Appellants - Glenda, Jimmy, John, and Rowdy Anderson; and (4) did not abuse its discretion in excluding the Andersons' expert witness. Lastly, the Supreme Court held that the Water Court's findings of fact were not clearly erroneous and that there was substantial evidence supporting the Water Court's conclusion establishing the point of diversion for the Macks' claims.

State ex rel. Bohlen v. Halliday

Court: Supreme Court of Ohio

Citation: 2021-Ohio-194

Opinion Date: January 27, 2021

Judge: Per Curiam

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

The Supreme Court granted a writ of prohibition sought by Relators, who owned property over which Ohio Power Company sought to take easements by eminent domain, holding that Relators were entitled to a writ of prohibition to prevent Washington County Court of Common Pleas Judge John Halliday from proceeding with a compensation trial during the pendency of Relators' appeal. After Judge Halliday ruled that Ohio Power's takings were necessary for a public use Relators appealed to the Fourth District Court of Appeals. Notwithstanding the appeal, Judge Halliday scheduled a trial on the issue of compensation. Relators commenced this action seeking a writ of prohibition to prevent Judge Halliday from holding the compensation trial while their appeal was pending. The Supreme Court granted the writ, holding (1) the appropriations in this case did not fall under any of the exceptions to the owner's right to immediate appeal under Ohio Rev. Code 163.09(B)(3); and (2) a compensation trial during the pendency of a section 163.09(B)(3) appeal is inconsistent with the court of appeals' jurisdiction.

Pirmantgen v. Roberts County

Court: South Dakota Supreme Court

Citation: SOUTH DAKOTA, 2021 S.D. 5

Opinion Date: January 27, 2021

Judge: Devaney

Areas of Law: Real Estate & Property Law

The Supreme Court affirmed in part and reversed in part the judgment of the circuit court reversing and modifying the decision of the hearing examiner modifying the Roberts County Director of Equalization's tax assessments on four of James Pirmantgen's properties but affirming the County's remaining twelve assessments, holding that the circuit court erred. On appeal, the County argued that the circuit court erred in concluding that it failed properly to value Pirmantgen's properties for tax assessment purposes. The Supreme Court held (1) the circuit court properly determined that the hearing examiner's valuations as to three parcels were clearly erroneous; (2) the circuit court erred in reversing the hearing examiner's decision as to ten properties and in directing the County to reduce the assessments on these properties; and (3) because the circuit court did not have the authority to order a refund of taxes, it erred in directing the County to reimburse Pirmantgen any taxes paid in excess of what should have been paid.

PNC Mortgage v. Howard

Court: Supreme Court of Texas

Docket: 19-0842

Opinion Date: January 29, 2021

Judge: Per Curiam

Areas of Law: Banking, Real Estate & Property Law

The Supreme Court reversed the judgment of the court of appeals concluding that a refinancing lender's failure to timely foreclose its property lien precluded the lender from seeking recourse from the borrowers' default through equitable subrogation, holding that a lender's forfeit of its lien does not preclude the lender's equitable right to assert a preexisting lien discharged with the proceeds from its loan. After Borrowers defaulted, Lender sought foreclosure of its lien and alternatively sought a judgment declaring its right to foreclosure of the underlying liens on the property through equitable subrogation. The trial court declared that Lender's lien was unenforceable. The court of appeals affirmed, thus rejecting Lender's assertion of an equitable right to enforce the liens. After the court of appeals issued its opinion, the Supreme Court decided Fed. Home Loan Mortgage Corp. v. Zepeda, 601 S.W.3d 763 (Tex. 2020). The Supreme Court reversed the portion of the judgment declaring Lender's equitable subrogation rights unenforceable, holding that the Court's opinion in Zepeda required reversal.

Smithson v. Lindzey

Court: Wyoming Supreme Court

Citation: 2021 WY 15

Opinion Date: January 28, 2021

Judge: Kate M. Fox

Areas of Law: Real Estate & Property Law

The Supreme Court reversed the judgment of the district court declaring that Scott Smithson and Elena Morozova (the Smithsons) did not have the right to fish in the Little Laramie River, holding that a 1965 warranty deed granted a profit that was appurtenant to the Smithson tract, giving the Smithsons the right to access to fish in the Little Laramie River. The predecessors of Frederick and Stephanie Lindzey conveyed the right to fish in the Little Laramie River to the predecessors of the Smithsons. The Smithsons filed suit for declaratory judgment and an injunction preventing the Lindzeys from interfering with it, arguing that they continue to hold the right to fish because it is a servitude appurtenant to the land. The district court found in favor of the Lindzeys, declaring that any right to fish was a license that ended when the original grantees sold their interest in the land. The Supreme Court reversed, holding that the plain language of the 1965 warranty deed created a profit, and nothing in the deed or in the context of the transfer overcame the presumption that the profit was appurtenant to the Smithson tract.